Volume 18 — Vermont Reports

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

In this case the original writ was made returnable to the county court, and, at the term at which the action was entered in court, the defendants appeared and pleaded as follows : “ And now the defendants here in court defend the wrong and injury, when &c., and pray judgment of the plaintiff’s writ, and that the same may be abated, quashed and held for nought, because they say that Decius B. Bogue, by whom the said writ was served, executed and returned, was, at the time…

Trespass on the Case against the defendant, as sheriff of the county of Essex, for the default of David E. Denison, a deputy sheriff under the defendant, in neglecting to make service of an execution in favor of the plaintiff against one James Steele. Plea, the general issue, and trial by jury, — Redfield, J., presiding.

Trespass on the Case for malicious prosecution and for a libel. The plaintiff, on trial, abandoned all the counts in his declaration except the first and fourth. Plea, the general issue and in bar, and trial by jury, — Redfield, J., presiding.

Assumpsit. The plaintiff alleged, in his declaration, in substance, that on the 23d day of February, 1841, the defendant sold to him eight stoves, for two hundred dollars, and delivered six of the stoves, which were accepted by the plaintiff, and promised to deliver the remaining two stoves in two months from that time, and also promised, that, if the eight stoves were not sold by the plaintiff within one year, he would receive back from the plaintiff two of the stoves and…

Assumpsit. The plaintiff declared against the defendant, in several counts, as maker, indorser and guarantor of a promissory note, and added the money counts. Plea, the general issue, and trial by jury, — Collamer, J., presiding. On trial the plaintiff abandoned the first count in his declaration, and obtained a verdict upon the other counts.

Book Account. Judgment to account was rendered in the eounty court, and an auditor was appointed, the substance of whose report is sufficiently detailed in the opinion delivered by the court. The county court, — Collamer, J., presiding, — rendered judgment for the plaintiff, upon the report, for $22,18; to which decision the defendant excepted.

<p>Appeal from an order of removal, made by two justices of the peace, of one Henry Hitchcock from the town of Ludlow to the town of Weathersfield. Plea, that the said Henry Hitchcock, was-not chargeable to the town of Ludlow, as a pauper, and trial by the court, — Collamer, J., presiding.</p> <p>On trial it appeared, that the said Henry Hitchcock was an unmarried man, about twenty five years of age, and that, for several years before the making of the order of removal, he had been occasionally insane, and that he had resided a portion of the time with his father, in Ludlow, and that that had been his home. It farther appeared, that for several weeks previous to the making of the order, and at that time, he was insane, and that he had no property in this State; that his father, a few days before the order was made, applied to the overseer of the poor of Ludlow for assistance for Henry, and thereupon the overseer furnished necessaries for him, at the expense of the town, until he was removed to Weathersfield. It was proved, that the said Henry, at the time the order of removal was made, owned a lot of land in Warren county, in the State of New York, which was unincumbered and of the value of four or five hundred dollars.</p> <p>Upon these facts the court decided that the said Henry was not chargeable to Ludlow as a pauper; to which decision the plaintiffs excepted.</p> <p>1. It does not appear, that the overseer of the poor of Ludlow, or the father of the pauper, knew that the pauper owned the lot of land in New York. If the father did know of it, it seems that he would not provide for his son upon the credit of it; and the son had fallen into as great distréss, and stood as much in need of immediate relief, as though he had not owned the lot. Even if the overseer knew that the pauper owned the land, he had no authority, or right, to provide for him on his credit and impose on him a debt ; Selectmen of Bennington v. McGenness, 1 D. Ch. 44; and the pauper, being insane, was incapable of making any contract, by which he could be made liable to refund to Ludlow such sums, as the overseer should expend for his relief and support. The town, where the pauper became chargeable, could no more avail itself of a lot of land, which he owned out of the State, than they could of a settlement, which he had out of the State. Georgia v. Grand Isle, 1 Vt. 464. Austin v. Gage et al., 9 Mass. 395.</p> <p>2. If the pauper had had property in this State, and it was not available for his immediate relief, it was still the duty of the overseer to provide for him, until he could be removed, in pursuance of the statute, to the place of his legal settlement; and he was liable to such removal. The statute does not require, that he should be an absolute pauper, in order to be entitled to relief and liable to removal ; but only, that he should have fallen into distress and have stood in need of immediate relief; and that this was his situation, the case shows. Rev. St. 102, §§ 3, 4. Johnson v. Huntington, l Day 212. Sturhridge v. Holland, 11 Pick. 459.</p> <p>A pauper, according to the statute, is a “ poor and indigent person ; ” and the town, in which such person is lawfully settled, must relieve and support him, “ whenever he stands in need thereof.” In Londonderry v. Acton, 3 Yt. 122, the court say, “No person can be chargeable, while he has the means of supporting himself; when he has property, either real or personal, he must first expend that in his own support, before he can make any legal or effectual call upon the overseers of the poor for relief.” The case shows, that the supposed pauper has a clear real estate, of the value of $400, or $500, situated without the State.</p> <p>1. The appellant insists, that, as to the point at issue here, it is unimportant, whether the property be within the State, or not, if the owner has such dominion over it, as to be able to convert it to the relieving of his necessities.</p> <p>2. No argument can be derived, by the appellee, from the defect of power in the town, or its authorities, to reach and appropriate the property. In this respect both towns stand on the same footing ; 'neither can confiscate the property for the purpose of indemnification, or for the use of the owner, whether it be within or without the State.</p>

Trustee Process. The trustee filed his disclosure in the case, setting forth, substantially, the following facts.

The material allegations in the orator’s bill were, that on the 19th day of March, 1833, the orator and one Marey, who was then a partner… Held: against the orator as surviving partner, — the said Marcy having then deceased, —returnable to the then next term of Windsor County court, but did not cause any service of the writ to be made upon the orator until the 16th day of said May, when the statute of limitations would have run against the note, if the writ had not been…

<p>Assumpsit. The defendants were attached to answer unto the plaintiff “ in a plea of the case, For that the said Declancy Stough- ‘ ton, Jr., Frederick Hazen, Henry Brayton and Albert S. Mat- * thews, all of Alburgh aforesaid, at Alburgh, on the 26th day ‘ of June, A. D. 1841, by their note under their hands of that date, ‘ for value received, jointly and severally promised to pay the said ‘ William A. Clark $226,17 by the 1st day of May, 1842, with inter- ‘ est, and then and there, to wit, on the 26th day of June, 1841, delivered said note to the plaintiff. Yet the said defendants, not re~ ‘ garding said undertaking, have not paid said sum of money men- ‘ tioned in said note, or any part thereof, though often requested,” ■&.C.</p> <p>The defendants demurred, and assigned for cause, “ that the ‘plaintiff’s declaration does not allege for what thing the defendants ‘ promised, or for what said promise, in said declaration mentioned, ‘ was made.” The' county court, — Bennett, J., presiding, — adjudged the declaration insufficient.; to which decision the plaintiff excepted.</p>

An auditor was appointed by the county court, who reported, that the plaintiff presented before him an account, which commenced in 1828, and which amounted, with the interest, to $112,44, of which $101,05 accrued more than six years prior to the decease of the testatrix; that there was no interval of six years .between any two items of the account; that the plaintiff’s account contained no credits, and that .the defendant presented no claim against the .plaintiff, except a…

Trustee Process. The writ was served upon the trustees April 13, 1839. Judgment having been rendered against the principal debtor by default, the trustees appeared and filed their joint disclosure, in which they set forth the facts substantially as follows. John H. Weller, Harry Weller, Nathan Weller, Jr., Jonathan Weller and Catharine Warden were heirs of the estate of Nathan Weller, deceased.

Audita Querela. The plaintiff alleged in his. complaint, in substance, that, on the 10th day of August, 1833, he was committed to the jail in the county of Rutland by virtue of an execution in favor of the defendant against him, and that he had ever since remained confined within the liberties of the prison by virtue of the said execution ; that on the first day of September, 1842, he was, by the district court of the United States for the district of Vermont, upon due…

Trespass for assault and battery and false imprisonment. Held: as constable, an execution in due form of law, and issued by lawful authority and on legal proceedings, against the plaintiff, and that, by virtue thereof, he arrested the plaintiff on that day, at Middletown, and that the plaintiff escaped from him without his consent, and that he pursued the plaintiff, and recaptured him at…

<p>Indictment for keeping a house of ill fame. Plea, not guilty, and trial by jury. The indictment was in these words ;—</p> <p>“ State of Vermont, 7 The grand jurors for the people of ‘Chittenden County, ss. $ the State of Vermont upon their oath ‘ present, that George Nixon, late of Burlington in the county of ‘ Chittenden, on the first day of May, in the year of our Lord one ‘ thousand eight hundred and forty four, and on divers other days ‘ and times between that day and the day of taking this inquisition, ‘ with force and arms, at Burlington aforesaid, in the county of ‘ Chittenden aforesaid, feloniously a certain house of ill fame, com- ‘ monly called a bawdy house, resorted to for the purposes of pros- ‘ titution and lewdness, unlawfully and wickedly did keep and main- ‘ tain, and in the said house, for filthy lucre and gain, divers evil dis- ‘ posed persons, as well men, as women and whores, on the days and ‘ times aforesaid, as well in the night as in the day, there unlawfully ‘ and wickedly did receive and entertain, and in which said house ‘ the said evil disposed persons and whores, by the consent and pro- ‘ curement of the said George Nixon, on the days and times afore- ‘ said, there did commit whoredom and fornication, whereby divers ‘ unlawful assemblies, riots, routs, affrays, disturbances and violations ‘ of the peace, and dreadful filthy and lewd offences in the same ‘ house, on the days and times aforesaid, as well in the night as in * the day, were there committed and perpetrated, to the great damage ‘ and common nuisance of all the good citizens of this State, to the ‘ evil example of all others in like cases offending, in manifest des- ‘ traction and subversion of morality and good manners, contrary to ‘ the form, force and effect of the ninth section of the ninety ninth ‘ chapter of the last Revised Statutes of this State, and against the. ‘ peace and dignity of the State.”</p> <p>On trial by the county court, — Bennett, J., presiding,; — evidence was given, on the part of the prosecution, tending to sustain the allegations in .the indictment; and the court instructed the jury, among other things, that, to bring this case within the statute, they must find that the respondent kept the house complained of as a common resort for the purposes of prostitution, to be frequented by all such, as were desirous of frequenting such places for the purposes of prostitution; but that it was not indispensably necessary for the government to show, that the house was kept by the respondent for the purposes of pecuniary profit and gain, though such evidence might be important, in enabling the jury to determine whether the house was kept as a common resort.</p> <p>The jury returned a verdict, that the respondent was guilty; and after verdict the respondent moved in arrest of judgment for insufficiency of the indictment. The court, pro forma, overruled the motion. Exceptions by respondent.</p> <p>1. It does not appear upon the record, that the indictment was found by any grand jury of the county of Chittenden, impanneled and sworn, or at any term of the Chittenden county court, or at any place within the county. But it purports to have emanated from “ the grand jurors for the people of the State of Vermont,” — an informing body wholly unrecognized by the law. By the law of the State a legal indictment can only be found by the grand jury within and for the county, duly impanneled and sworn at a legal term of the county court. That an indictment was so found is a fact, of which the court cannot take notice; and therefore it must appear affirmatively and distinctly upon the record. 4 Com. Dig. 672, and note. 1 Chit. Cr. Law, 326 et seq. Cro. Eliz, 490, 751. 1 Ld. Raym. 215. 12 Mod. 88. People v. Guernsey, 3 Johns. Cas. 265. Rex v. Ilaycocke, cited in 10 Petersd. Ab. 312. Rex v. Holliday, 3 Salk. 187. Rex v. War re et al., 1 Str. 698. Rex v. Fearnley, 1 T. R. 316. Rex v. Dann, 2 Eng. Cr. Cas. 424. Bac. Abr., Indictment I. It is insisted, that, under our practice, the caption, being always put on by the grand jury before presenting the bill, and the bill as presented constituting the full record, never after-wards to be amended or increased, necessarily constitutes an essential part of the indictment; that, like the rest of the bill, it cannot be amended, and its defects can be reached by demurrer, or motion in arrest.</p> <p>2. The local situation of the house complained of is not stated in the indictment, nor is it even sufficiently alleged, that it is sitúated in any town, or county. The averment in the indictment is perfectly consistent with the fact, that the respondent, at Burlington, did keep and maintain a house, &c., situated in New York, or any where else. But, could this defect be obviated, the indictment is still bad, for not stating the local situation of the house. This is only the same strictness, that is required in civil actions, as ejectment, &c., and in indictments for other offences. It is necessary, — ■ 1, In order to apprise the respondent with what particular offence he is charged, in order that he may prepare his defence; — 2, That the court may see, whether the indictment and the proof apply to the same offence; — 3, To render a conviction or acquittal upon the indictment a bar to a future prosecution for the same act, and to enable the court and the respondent to determine, in the event of a second indictment, whether or not it is for the same act. People v. Gates, 15 Wend. 159. Lambert v. People, 9 Cow. 578. 2 Chit. Cr. Law 40, and note. J ’Anson v. Stuart, 1 T. R. 748. 5 Bac. Ab. 77, Indictment G, and cases there cited.</p> <p>3. The court erred in instructing the jury, that it was not necessary for the prosecution to show, in order to sustain the indictment, that the house complained of was kept by the respondent for the purpose of pecuniary profit and gain. The words “keep a house of ill fame,” used in the statute, constitute a technical term, applied to a specific common law offence. The statute is manifestly designed to provide against the commission of that offence; and we must resort to the common law to ascertain of what the offence consists, or in other words, what is the meaning of the term. All the precedents of indictments for this offence, that can be found, contain an averment, that the house was kept “for lucre and gain.’’ This seems always to have been regarded as material to the description of the offence. So that the term, “ to keep a house of ill fame,” has invariably been applied to the keeping of such house for money. It is the keeping such a house for profit, that it is necessary to guard against by law; and it is against that offence that the statute is directed.</p> <p>1. The ninth section of chap. 99 of the Revised Statutes, on which this indictment is founded, is as follows, — “ Every person, who shall keep a house of ill fame, resorted to for the purpose of prostitution, or lewdness, shall be punished,” &c. The statute does not make the crime consist in keeping the house for the sake of gain. In this indictment the material words of the statute are used; and if the proof brings the case within these words, all the remaining phraseology may be rejected as surplusage, and it is not necessary to prove such immaterial allegations. 2 Hawk. P. C. 354, sect. 110.</p> <p>2. As to the motion in arrest of judgment, — the indictment conforms to the precedents, with a slight variation, to conform to the words of the statute on which it is founded. Davis’ Prec. 198, No. 266. Cond. Gen. 315. 2 Chit. Cr. Law 1-35. The grand jury find the indictment; the clerk prepares the caption ; and one caption answers for all indictments found the same term. The caption need not accompany the indictment; it may be supplied at any time, may be amended, or altered, according to the truth, it being mere matter of form. Cond. Generalis 226. State v. Gilbert., 13 Yt. 647. Cr. Circ. Comp. 83, 126, 523. 2 Hawk. P. C. 348.</p>

<p>Assumpsit. The declaration contained four special and three general counts. In the first count the plaintiff averred, in substance, that, on the 30th day of May, 1817, the defendant conveyed to him and one John Pierson certain tracts of land in Essex, in Chittenden county, and the plaintiff, then Uzal Pierson, Jr., John Pierson and Uzal Pierson, senior, thereupon executed to the defendant their promissory notes, in the whole amounting to three thousand dollars; that subsequently the defendant commenced suits upon those notes, in Chittenden county court, and, while the suits were pending in said court, the defendant, in consideration that the plaintiff would convey to him one undivided half of the said real estate, promised that he would apply $1250,00 upon the notes, and would take judgments in the several suits for the balance, and would never after collect said judgments of the plaintiff, but would discharge the plaintiff from said judgments ; and the plaintiff averred, that he did then convey to the defendant the said undivided half of the real estate, and that the sum of $1250,00 was applied upon the notes, and that the defendant took judgments in his several suits for the balance of the notes, — but that the defendant had subsequently commenced an action of debt against him upon the judgments, and had recovered judgment against him therein, and had levied his execution upon the plaintiff’s property, and that the plaintiff had been compelled to pay the same, amounting in the whole, with interest and cost, to nearly $3000,00. The third count was substantially the same. The second and fourth counts alleged a promise on the part of the defendant to indemnify the plaintiff against the judgments rendered in the actions upon the notes. Plea, the general issue, and trial by jury.</p> <p>On the trial in the county court, — Bennett, J., presiding, — the plaintiff introduced evidence, tending to prove that in 1824 the defendant had commenced four actions at law against the plaintiff, his brother John Pierson, and his father, Uzal Pierson, senior, on certain notes signed by the three ; and it appeared that those notes, and certain other notes, amounting in the whole to $3000,00, had been executed by the three for certain lands in Essex, which were conveyed by the defendant, by deed, to John Pierson and the plaintiff. It farther appeared, that, after the said writs were served, and while the suits were pending, a negotiation was entered into by the plaintiff and defendant, and that, at the term of the court in September, 1824, the plaintiff conveyed to the defendant one undivided half of the same lands, which had been before conveyed by the defendant to the plaintiff and John Pierson, and that the sum of $1250,00 was then indorsed upon the notes in suit, and judgments entered for the balance against the three; and the evidence in relation to the said agreement tended to prove, that, in consideration that the plaintiff would convey the undivided half of the lands to the defendant, the defendant agreed, that judgment should be entered, in the suits upon the notes, for the balance, after deducting the sum of $1250,00, against the three signers of the notes, but that he would never collect the judgment for the said balance of the plaintiff, but would lose it, if he could not collect it of the other two, and that on this agreement the land was conveyed and the indorsement made and the judgments for the balance accordingly entered.</p> <p>It appeared also in evidence, that, when the writs in the suits in favor of the defendant were originally served, one Edward Pierson became bail for Uzal Pierson, senior, upon the writs; that the executions, issued on said judgments, were returned non est inventus as to the said Uzal Pierson, senior, and that John Pierson was committed to jail upon the executions, and was admitted to the poor debt- or’s oath; that the defendant subsequently sued out writs of scire facias against Edward Pierson, and that judgments were entered on the same against Edward, under a rule, that, on payment by Edward to the defendant of the amount of the judgment, the defendant should assign to Edward the judgments recovered by him against the three; that Edward Pierson did pay the said amount to the defendant, and the defendant thereupon assigned the said judgments to Edward ; and that subsequently Edward Pierson caused an action of debt to be commenced in the name of the defendant, Catlin,, against the plaintiff, upon the judgments thus assigned, and obtained judgment thereon, and levied his execution upon the land of the plaintiff, and that the plaintiff, in order to redeem the same, paid the amount to Edward.</p> <p>The plaintiff contended, thatUzal Pierson, senior, was a principal upon the notes, and, in order to prove that fact, offered, among other things, the deposition of one Dorcas Pierson, — to the admission of which the defendant objected, upon the ground that the cause of taking the deposition, as certified by the magistrate, at the time of taking the deposition, as then existing, did not continue to exist at the time of trial; and upon this point testimony was introduced by each party. The cause certified was “ age and bodily infirmity; ” and the court, being of opinion that the cause still continued to exist, admitted the deposition. And the evidence on the part of the plaintiff, on this point, did tend to prove, that Uzal Pierson, senior, had a joint interest in the land with John and Uzal, Jr.; but contradictory evidence was given, on the part of the defendant, as to the same point.</p> <p>The defendant insisted, that the deed, executed by him to John Pierson and the plaintiff, was conclusive evidence, that the whole title of the land was in the grantees, and that in this case there could be no resulting trust in Uzal Pierson, senior. The defendant also insisted, and requested the court to instruct the jury, that, inasmuch as it was part of the contract, that Catlin should take judgment against the three, and should have liberty to collect the same of John Pierson and Uzal Pierson, senior, it was immaterial, whether the said Uzal Pierson, senior, was principal, or surety ; and that, if the assignment was made, as a means of enabling him to collect his debt from the other two, the defendant was entitled to a verdict.</p> <p>The court instructed the jury, that, as the consideration of the notes passed from the defendant to John Pierson and the plaintiff, hy means of the conveyance to them alone, the effect of this was to vest the title in them ; and that it would result from this, unexplained, that John Pierson and the plaintiff stood as co-principals on the notes, and Uzal Pierson, senior, as surety for them ; but that this did not conclusively follow ; and that the effect, in this respect, might be rebutted, by showing, by parol evidence, that Uzal Pier-son, senior, had in fact a joint interest with the other two in the lands at the time of the purchase ; that it was a material point, for the jury to find the relation in which Uzal Pierson, senior, stood to the other two signers of the notes, whether as a surety, or as a co-principal with them, — and that this must be determined from the whole evidence in the case, bearing on that point; and that, if they found that Uzal Pierson, senior, was a co-principal upon the notes with the other signers, it was evident there- had been such a breach of the contract, set up in the first and third counts in the declaration, as would entitle the plaintiff to recover ; but that, if they found that Uzal Pierson, senior, was but a surety on the notes, then there had been no sufficient breach of the contract, and the defendant was entitled to a verdict.</p> <p>The court also instructed the jury, that there had been no evidence in the case tending to prove the plaintiff’s contract to be one of indemnity, as set up in the second and fourth counts in the declaration, and that those counts, and also the general counts, should be laid out of the case.</p> <p>Verdict for plaintiff. Exceptions by defendant.</p> <p>1. The contract was not violated by the assignment of the judgments to Edward Pierson. It was part of the contract, that Catlin should have liberty to collect the judgments from the other two defendants. He had a right, therefore, to use all means necessary and proper for such collection. He had a right to sue Edward Pierson as bail, and to take judgment, and was to take his judgment under such rule, as the court should order. The assignment should not be regarded as an independent sale of the judgments, but as contributing, in connection with the judgment against Edward, the means of recovering the amount demandable from the bail.</p> <p>2. We farther insist, that the suit, brought by Edward Pierson in the name of Catlin, is not to be adjudged a breach of the contract. Edward stood as bail in the suit, and, on the payment of the money to Catlin, with which he had been fixed as such bail, he had a right to sue his principals; as bail for one of the defendants, he became bail for the debt. The debt was the joint debt of the three, and the payment by Edward of his liability operated as a discharge of the three. Every compulsory payment must, in law, be regarded as payment on request; and hence, in this case, the payment must be deemed as having been made at the réquest of all the original defendants. The right, then, of Edward to sue was independent of any act of Catlin ; and the assignment was of no importance, except as the evidence of payment.</p> <p>3. The inquiry, submitted to the jury upon the trial, whether Uzal Pierson, senior, was principal or surety, was immaterial, and the court erred in their direction on that point. It is not easy to perceive, how the equitable claims of the four Piersons upon each other can be adjusted in this suit; but, waiving that point, we contend, that the right of Edward does not depend on any contingent claim, that might accrue to the father, on his being subjected to Edward’s claim upon him, but upon a claim in his own right, resting on the fact, that, as bail, he had been charged with the debt, and that the payment was for the benefit of the three.</p> <p>4. We insist that the plaintiff should be estopped from averring that the father was principal; as it would, in effect, be allowing him to take advantage of his own wrong. It is a sound principle, in the construction of contracts, that parties are responsible for expectations they have justly raised, that they are bound by such facts as may fairly be inferred from their acts, and that no one shall be permitted to falsify such expectations, or give evidence to rebut such inferences. Robinson v. Nahon, 1 Camp. 245. Lipscombe v. Holmes, 2 lb. 441. Mayor of Carlisle v. Bldmire, 5 East. 487. Radford v. McIntosh, 3 T. It. 432. 2 Stark. Ev. 31-33, 45, 47. Catlin was well warranted in considering the father as surety for the sons, and in making his contract with the plaintiff on that basis. He had before conveyed the land to the sons, and, by the operation of this conveyance, the sons stood as principals and the father as their surety. The plaintiff, by his conduct, held out to Catlin, that this was the true relation ; for he conveyed to Catlin the full half of the land, — thereby giving record evidence of the fact.</p> <p>The objection to the evidence, introduced to show Uzal Pierson, senior, a co-principal on the note, rests upon the ground, that the deed itself concludes all the parties from alleging an interest different from the import of the deed. Evidence aliunde, and even parol evidence, is always admissible, to prove a state of facts, independent of the deed itself, whereby a trust may result by implication of law, — as that the consideration was paid by him, who claims the resulting trust. Boyd v. McLean, 1 Johns. Ch. R. 582. Rogers v. Murray, 3 Paige 390. Powell v. The M. <íp B. Manuf. Co., 3 Mason 347. Meth. Ep. Church v. Jaques, 1 Johns. Ch. R. 450. Philips v. Cramer, 2 Eq. Dig. 475-7. 2 Wash. C. C. Rep. 441. Jer. Eq. Jur. 85, 86. Rev. St. 315, §22. 2 Ventr. 361. 2 Cox 93. 1 Vern. 366. 2 Atk. 71. In the case at bar the plaintiff only claimed to show a purchase on the joint account of the three signers of the notes, and that they were partners; and to show that a purchase by partners of real estate, on their .joint account, enures to the benefit of all, though the deed be taken in the name of a part only of the firm, we cite Jeremy’s Eq. Jur. 85, 86; Wray v. Steele, 2 Yes. & B.388; Story on Part. 127 et seq. ; Fereday v. Wight-wick, 1 Rus. & Mylne 45 ; Phillips v. Phillips, 1 Mylne & Keen 649; Selkrig v. Davies, 2 Dow’s Pari. R. 231-242; 2 Kent. 37-39; Foot et al. v. Coloin et al:, 3 Johns. 216. Estoppels are mutual; and when either party is a stranger to the contract, or the contract comes in question collaterally, and in a way to conclude the parties on the contract itself, it is always open to such explanation, as will prevent its being improperly used to injure a party on other questions. Kip v. Denniston, 4 Johns. 23. Tripp v. Hathaway, 15 Pick. 47. Champlin v. Butler, 18 Johns. 169. Rex v. Scammonden, 3 T. R. 476. 3 Stark. Ev. 1051, 1054 and note.</p> <p>If it be contended, that Catlin was at liberty to pursue his remedy against John Pierson and Uzal Pierson, senior, by the terms of the contract, we say, he was limited to such a pursuit of it, as should not work a violation of the spirit of his promise to the plaintiff. That promise was absolute; his liberty tó pursue the others was implied, and must be intended to be limited to them personally.</p> <p>Nor can he shelter himself under a rule of court. The rule was obtained in a suit in favor of Catlin against Edward Pierson, the bail, to which this plaintiff was neither party, nor privy; and consequently he is not bound by it.</p> <p>Upon the question of the breach, we claim that the interpretation of the contract, claimed by the defendant, is in violation of good faith, contravenes the plain intention of the parties, operates a fraud on the plaintiff, and is not in accordance with what the defendant authorized the plaintiff to expect; for we insist, that, by the terms of the contract, the plaintiff had a right to demand, not only that the defendant should not pursue him any farther, but that he should not cause others to pursue him. Lieber’s Pol. & Legal Herm. 93 et seq.' Stow v. Stephens, 7 Vt. 27. Ranay v. Alexander, Yelv. 76, and cases there cited. Hopkins v. Young, 11 Mass. 302. Poth. on Ob. 54, Part 2, c. 1, p. 92. Chit. Cont. 98, n. 1. 2 Kent 556, 557.</p>

<p>Assumpsit. The plaintiff averred, in his declaration, that the parties, on the 29th day of December, 1842, entered into an agreement in writing, by which the defendant was to lease to the plaintiff a certain tavern house and land for one year after the first day of March, 1843, for a rent reserved of one hundred and twenty-five dollars, payable semi-annually, for the payment of which the plaintiff was to give sufficient security, and also agreed to deliver to the plaintiff, to be used in the tavern, such furniture as he could spare, for the use of which the plaintiff was to pay eight per cent, upon its appraised value; and the plaintiff averred general performance upon his part, and especially, that he had tendered good and sufficient security for the rent of the real estate, and that the defendant had refused to perform upon his part, and special damage was alleged. Plea, the general issue, and trial by jury, — Bennett, J., presiding.</p> <p>On trial the plaintiff offered in evidence an agreement in writing, signed by himself and the defendant, dated December 29, 1842, which contained a clause, specifying that the premises described in the declaration were to be let by the defendant to the plaintiff for one year after the first day of March, 1843, for one hundred and twenty five dollars ; also a clause, that the defendant should let to the plaintiff such furniture as he could spare, the value of which should be estimated, and that the plaintiff, for the use thereof, should pay eight per cent, upon such value ; also a clause, providing that payment of the rent should be made in equal semi-annual instalments, and that the plaintiff should “ furnish sufficient security for the same. ” The defendant objected to the admission of this instrument upon the ground of variance, insisting that by its terms the plaintiff was bound to furnish security for the sum to be paid for the use of the furniture as well as of the premises; but the court overruled the objection.</p> <p>The plaintiff then introduced testimony, tending to prove, that, being on the premises on the morning of the first day of March, 1843, with his family and effects, prepared to take possession under the agreement, he proposed to give to the defendant his individual notes for the payment of the rent of the real estate, and requested to be let into the possession ; that the defendant declined receiving such notes, and the plaintiff soon after proposed to secure the payment of the rent of the real estate by a mortgage upon his farm in Westford, in the county of Chittenden, telling him that it was ample security ; that the defendant declined receiving this security, and the plaintiff then told him, that he did not know that he could give him any other security and should have to leave, and that he did, soon after, leave with his family; that the plaintiff returned in a few hours, and tendered to the defendant, as security for the rent of the real estate, two notes for $62,50 each, payable at the times specified in the agreement, and signed by himself and one Rood ; and that the defendant declined receiving the notes, saying that he should not think that the plaintiff would offer them to him, after what had been said in the morning.</p> <p>The testimony on the part of the defendant tended to prove, that the plaintiff’s real estate in Westford was of about the value of $600, and was subject to the payment of an annual rent forever of $6,25, and was also incumbered by a mortgage to secure the payment of $300,00 ; that after the defendant had refused, on the first day of March, 1843, to take the individual notes of the plaintiff for the rent, and before the plaintiff offered security upon real estate, the plaintiff declared, that he would have nothing farther to do with the matter ; that the plaintiff’s offer was, to give security “ upon his farm in Chittenden county, ” not stating in what town it was situated ; and that Rood was not, at the time his notes were offered by the plaintiff, responsible for the amount of those notes.</p> <p>The plaintiff introduced testimony as to the value of his farm, and also as to the solvency of Rood, and, to the latter point, offered the depositions of witnesses, who stated, in substance, that, from their own knowledge of Rood, and from what was said by others, who were acquainted with him, in the vicinity where he lived, they should think that his credit was good, and that he was responsible for a larger sum than the amount of the notes. This testimony was objected to by the defendant, but admitted by the court. The plaintiff was also allowed to prove, upon this point, that Rood was an industrious man and of good habits. The defendant also objected to the deposition of one Stiles, offered by the plaintiff, for the reason, that the word “appeared” was omitted after the word “personally ” in the certificate of the oath ; but the objection was overruled by the court.</p> <p>The defendant requested the court to charge the jury ; — 1, That a refusal by the defendant to let the premises on the first day of March, 1843, was not a breach of the contract; 2, That the defendant was not bound to accept an offer of real estate in “ Chittenden county ; ” 3, That, if a mortgage of real estate was sufficient security, within the terms of the contract, it should be a mortgage on unincumbered property; 4, That, after the offer of inadequate security upon real estate by the plaintiff, and its refusal by the defendant, and the departure of the plaintiff with his family, the defendant had a right to rescind the contract, and that the subsequent offer of Rood’s security was too late; 5, That a refusal by the plaintiff, before the offer of any security, to have any thing farther to do with the matter, discharged the defendant from all liability upon the contract, and that no subsequent offer of security by the plaintiff, without ail express recognition of the contract, by the defendant, as still subsisting, could have the effect to charge the defendant upon his refusal to accept such security; 6, That it was incumbent on the plaintiff to prove, that the defendant knew, that the real or personal security offered was sufficient, or that the offer was accompanied with reasonable evidence of such sufficiency.</p> <p>But the court instructed the jury, that, by the terms of the contract, the plaintiff was bound to furnish sufficient security to the defendant for the payment of the rent of the real estate, before he could call upon the defendant to fulfil the contract upon his part; that he had the whole of the first day of March, in which to do this ; and that he might give, for this purpose, his own notes, secured either by a mortgage of real estate, or by a co-signer. The jury were also instructed, that, if they should find, that the plaintiff, after his own notes were refused, declared to the defendant that he would have nothing farther to do with the business, this would not of course discharge the defendant from the obligation of the contract upon his part, especially when there was no evidence, that the defendant had in any way acted on such declaration; but that the plaintiff had the right, at any time during that day, in effect to countermand such declaration, by giving the proper security for the rent; that th.e parties might rescind the contract at any time before a breach ; but that this must be by the mutual consent of both parties.</p> <p>. The jury were also instructed, that, if the plaintiff, on the first day of March, 1843, though after he had made the declaration before stated, offered to give the defendant the security by a mortgage upon his farm in Westford, or upon his farm in Chittenden county, (and that it was immaterial which) and the defendant refused to receive it, for the reason that he claimed that he was entitled to personal security, the plaintiff was not bound to tender a mortgage deed of the same, nor to give any farther description of the premises, which he intended to mortgage; that the security offered must be reasonably adequate, and such as men of ordinary prudence would be satisfied with taking; that it was for them to determine this point, from the whole evidence in the case bearing upon it; that, in reference to this, they would ascertain the value of the premises which the plaintiff intended to mortgage, their situation, and the incumbrance upon them ; that the premises were not necessarily inadequate,' because there was an incumbrance upon them % but that they should be satisfied, that the land was a full and ample security for the payment of the previous mortgage, as well as of the rent, in money, before they should hold the security as sufficient.</p> <p>The jury were also instructed, as to the tender of Rood’s notes, that, though they should find that the plaintiff had not, until the time that tender was made, offered to give the defendant sufficient security for the rent, yet, if the contract had not been rescinded by the mutual consent of the parties, it was made in season ; that the question as to Rood’s responsibility was one of fact, for the jury to pass upon; that it was not necessary, that Rood should have attachable property, either real, or personal, to the amount of the notes signed by him, in order to render the security sufficient, but that it was proper for them to take into the account Rood’s character, habits, and qualifications for business, and whatever debts might be due from him; and that, if, from the whole, they found Rood possessed of such responsibility, as a man of ordinary prudence should and would, under like circumstances, be satisfied with, the plaintiff, in this respect, did all that he was obliged to do, and the defendant was bound to have accepted the security, when tendered, and to have let the plaintiff into possession of the demised premises.</p> <p>The jury returned a verdict for the plaintiff. Exceptions by defendant.</p> <p>1. There was a fatal variance between the contract declared upon and the one offered in evidence. Bristow v. Wright, 2 Day 664. Hooker v. Cook, 4 Johns. 314. 1 Phil. Ev. 208. The court will collect the intention of the parties by inference from stated terms, or from actual circumstances, or from both. Story on Cont. 148, 228. Roberts v. Button, 14 Vt. 203. Greenl. Ev. 328, 338. 3 Sumn. 533. 1 Story’s R. 588. 1 Saund. R. 441. 15 Pick. 388. Doct. & St., c. 24,176. Lieb. Leg. & Pol. Herm. 19, 23, 24, 61. The intention of the parties, in this case, is apparent; the plaintiff was to give to the defendant security for the use of all things, for which money was to be paid. There was no legal uncertainty as to the sum to be paid for the use of the furniture; for it rested in appraisal, and its ascertainment was easy and certain. The intention of the parties is to be followed, unless such intention contravene some positive rule of law. Willes 327. Shep. Touch. 86. Dough 268, 382. 11 Mass. 303. 8 Mass. 174, 178, 179, 183-6, 214. 18 Pick. 403. 3 Mete. 533. 5 Mete. 188. 1 Story’s R. 574, 588. 6 Johns. 49. 20 Pick. 150, 156. 2 Cow. 195, 223. 6 Pet. 75. The objection to this construction can only be, that the word rent is one of restricted meaning, and that it is here to be taken in its technical and most limited sense. The word, as here used, is one of reference ; and it nowhere appears; that a technical rent was reserved. The word use is the only one applied to the realty, expressive of the interest, or estate, the plaintiff was to take; and the true interpretation is, that there was to be a letting to the plaintiff without any reservation of rent, and that for the use and occupation of the premises, including the furniture, the personal obligation of the plaintiff, with sufficient security, was the consideration. The parties could not here intend a technical rent. Would an action of assumpsit lie upon Hard’s promise to pay 1 If so, it was no rent. Cro. Car. 414. Id. 343. Cro. Jac. 598, 668, 669. 1 Brown 14. Cro. Eliz. 857. Id. 118. Id. 623. The term rent is applied, not only to issues out of the realty, but to the consideration paid for the use of incorporeal hereditaments, as well as of goods and chattels; 1 Ld. Raym. 77; Cro. Jac. Ill, 452; Jewell’s Case, 5. Co 3; 2 Saund. R. 303, 304 ; Spencer’s Case, 5 Co. 16 ; Codman v. Jenkins, 14 Mass. 94; 21 Pick. 538; 4 Mete. 224, 227 ; 9 Vt. 186 ; 5 Vt. 328; and the term must be understood'in its most comprehensive sense, if there is nothing to show that a more confined interpretation was intended; Chit. Cont. 79 ; Green!. Ev. 327; 7 Conn. 434, 444; 5 Wend. 375, 392.</p> <p>The argument has proceeded thus far upon the ground, that the writing offered in evidence was an agreement for a lease ; but the writing was in fact itself a lease, and, by consequence, does not support the count, as that alleges a mere agreement to demise the premises in question; Malden’s Case, Cro. Eliz. 33; Harrington v. Wise, Cro. Eliz. 486; Cro. Car. 207; Poole v. Bentley, 12 East 168; Wright v. Trevezant, 3 C. & P. 441, [14 E. C. L. 385;] Pinero v. Judson, 6 Bing. 206, [19 E. C, L. 56;] 8 Bing. 178, [21 E. C. L. 261;] Wilson v. Chisholm, 4 C. & P. 474, [19 E. C. L. 480 ;] Pearce v. Chesley, 3 Nev. &. M. 652; 3 Johns. 44; 5 Johns. 74.</p> <p>2. As the defendant was obliged to accept the offered security, if sufficient, to save himself from an action, or to reject it, if insufficient, to save himself from fraud, we insist that he had a right to know, and that the plaintiff was bound to give him information, as to the nature, extent and location of the real estate offered, and as to the property and responsibility of Rood, and that the case shows no excuse for omitting to furnish such information.</p> <p>3. We submit, that the charge as to the rescinding the contract was erroneous ; that, after what was said by the plaintiff, it was not necessary for the defendant to do any act in disaffirmance of the contract; and that, if such act was necessary, the refusal of Rood’s notes and the accompanying remark was evidence that the defendant considered the contract at an end ; Suttons v. Tyrrell, 12 Vt. 79; Lantry v. Parks, 8 Cow. 63; 2 Stark. Ev. 127.</p> <p>4. There was manifest error in admitting, as to Rood’s responsibility, the opinions of witnesses, founded upon personal observation coupled with the hearsay statements of others, as well as in admitting testimony as to Rood’s personal habits and character; Meyer v. Sefton, 3 C. & R. 344; Sheldon v. Root, 16 Pick. 567; Champion v. Brooks, 9 Mass. 227; Needham v. Ida, 5 Pick. 510; Griffin v. Brown, 2 Pick. 304; 14 East 327; 4 Cow. 203; 6 Cow. 9, 13; 4 Cow. 355; 7 Wend. 78 ; 3 N. H. 349, 365, 366.</p> <p>5. The declaration alleges a contract to rent and demise the premises in question after the first day of March, for one year. We submit, that a refusal to rent and demise on the first day of March was no breach of the contract, even if it was an agreement to rent and demise, as alleged. 2 Cowp. 714. 2 Camp. 294. 15 Ves. 246. Bayl. on Bills 238, (n. 69.) 3 N. H. 14. 8 Mass. 453. 2 Vt. 129. 6 Law Rep. 392. 7 Law Rep. 25. 4 Wash. C. C. Rep. 232.</p> <p>I. The case is not open to an objection for variance in any respect, except as to the security for the use of the furniture. The plaintiff insists, that there is no variance.</p> <p>1. The declaration states the whole contract precisely ; and the construction of one must be the construction of the other.</p> <p>2. The declaration does not allege any tender for the use of the furniture; the proof, therefore, is as broad as the declaration.</p> <p>3. The word rent, in the contract, relates solely to real estate, for which a fixed and definite sura was to be paid; 2 Bl. Com. 41; Cornell v. Lamb, 2 Cow. 652; 5 Jac. Law Diet. 468; 7 Com. Dig., Tit. Rent, 245 ; 6 Bac. Abr., Rent B 8.</p> <p>II. The evidence in relation to Rood’s responsibility was properly admitted. The fact, that the opinion of the witnesses was based in some measure upon reputation, might affect the weight to be given to their testimony, but not its competency.</p> <p>III. The deposition of Stiles was properly admitted. It is well settled, that a mere verbal departure from the statute will not exclude a deposition, if the sense is preserved; Nye v. Spalding, 11 Vt. 501; Houghton v. Slack, 10 Vt. 520; Clark v. Brown, 15 Vt. 658.</p> <p>IV. The plaintiff insists, that a compliance with the defendant’s first request to charge would have been error.</p> <p>1. The contract does not specify any time for the plaintiff to tender the security and the defendant to execute the lease, and, as the plaintiff was to have possession one year after the first day of March, (conceding this to be exclusive of the first day,) he had the whole time between the date of the contract and the commencement of the lease to tender the security and demand the lease, or possession of the premises, — or, at least, he had a reasonable time to tender it, before he was to have possession.</p> <p>2. The defendant put his objections exclusively on other grounds, and it is now too late for him to object, that the tender was premature ; Coit v. Houston, 3 Johns. Cas. 257; Black v. Smith, Peake’s Cas. 87 ; Douglas v. Patrick, 3 T. R. 683; Russell v. Ormsbee* 10 Vt. 277; Gould v. Banks, 8 Wend. 562 ; Lawrence v. Dole, 11 Vt. 549; Porter et al. v. Stewart, 2 Aik. 417 ; Rushton v. Aspinallj, 2 Dougl. 679; Slingerland v. Morse, 8 Johns. 474.</p> <p>3. The proof sustains the allegation in the declaration, even if the contract is exclusive of the first day of March, and the plaintiff was entitled, to a verdict. If the declaration was bad, the defendant-should have demurred, or moved in arrest of judgment;. Cameron v Reynolds, Cowp. 407; Barney v. Bliss, 2 Aik. 60; French v. •Thompson, 6 Vt. 54; Warden v, Burnhamt 8 Vt. 390; 1 Ch. PL 287-9, 348-9; Tomkins v. Carwin, 9 Cow. 255; Cheetham v. Lewis, 3 Johns. 42 ; Vail v. Ijewis, 4 Johns. 450.</p> <p>4. Taking the whole contract together, the agreement for a lease is inclusive of the first day of March. The intent of the parties, in such case, is to govern the construction, and the words may be inclusive, or exclusive, according to such intent; Morey v. Homan, 10 Vt. 565; Gunnison v. Bancroft, 11 Vt. 490 ; Gray v. Clark et al., 11 Vt. 583 ; Pugh v. Leeds, Cowp. 714 ; 5 East. 244.</p> <p>V. Security on real estate satisfies the contract, and the incumbrance thereon does not change the character, but only depreciates the value of the security, and the whole was properly left to the jury. The plaintiff having offered security on real estate, and the defendant having refused it on other grounds, and without making inquiry as to the location, description, or value of such security, the plaintiff was not bound to produce evidence to the defendant on this point, as it would have been a nugatory act. Jones v. Barkley, 2 Dough 604. Miller v. Drake, 1 Caine 45. Lawrence v. Dole, 11 Vt. 549. Gould v. Banks, 8 Wend. 562. Coit v. Houston, 3 Johns. Cas. 257. Slingerland v. Morse, 8 Johns. 474.</p> <p>VI. The offer of real estate security did not bar the plaintiff from a right to tender other security, if done in season. Nor did the plaintiff's declaration, before he offered the security on real estate, “ that he would have nothing farther to do with the matter,” have that effect, unless the jury found a variance or abandonment of the contract, especially as the plaintiff, immediately after, offered the defendant suitable security, and there was no evidence tending to show that the defendant either assented to rescind the contract, or had done any act to his prejudice, relying on such declaration.</p>

Assumpsit. The declaration contained several counts upon a special contract, — under which no evidence was received on trial, by reason of variance, — and also counts in indebitatus assumpsit for work and labor, goods sold and delivered, and the money counts. The defendants pleaded the general issue and also a plea in offset. Trial by jury, — Bennett, J., presiding.

Book. Account. The auditor reported, that the defendant’s account against the plaintiff contained, among other charges, one of fifty dollars for manure, and that it appeared, that the manure was sold June 30, 1842, by the defendants to the plaintiff, and was to include the whole quantity made at the defendants’stables between the second day of May, 1842, and the second day of May, 1843, and that the defendants warranted, that there should be at least two hundred and thirty…

Book. Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts, in substance, as follows. Held: that the plaintiff’s account was barred by the statute of limitations, except the sum of f 1,68, and rendered judgment for the plaintiff for that sum. Exceptions by plaintiff. 1. In order to render the dissolution of a firm effectual as to third persons, notice of such dissolution must in some way be given.

Book Account. The only question made in the case in this court was in relation to an item of $15,00, allowed by the auditor to the defendant, for lumber, in reference to which the facts appeared to be as follows.

Trustee Process. The action was originally commenced before a justice of the peace, and judgment was rendered in favor of the plaintiff for $35,84 damages and $4,63 costs, and the trustee was adjudged chargeable in the sum of $100, and his cost was taxed at $6,12.

<p>A new trial will not be granted for new discovered evidence, when all the facts show, that the petitioner, with due diligence, might have produced, at the trial by the jury, all the evidence which he discloses in his petition.</p>

Audita Querela, brought to set aside an execution issued upon a judgment rendered by the county court.

In this case the plaintiff alleged in his declaration, in substance, that an action had heretofore been commenced against him and one Cyrus G. Straw in favor of R. & J. Wainwright, and that the defendant Brown made and swore to a false, fraudulent and fictitious deposition, to be used on the part of the plaintiffs on the trial of said action, and that the said deposition was material to the issue of said cause, and that Brown made the same knowing it to be false, and for the…

This was an action on the case, founded on an agreement for the sale of a quantity of lamp oil. Plea, the general issue, and trial by jury, — Bennett, J., presiding.

Trespass on the Case. It was alleged in the declaration, that the defendants were common carriers on Lake Chamalain, between Burlington and Plattsburg, N. Y., and that the plaintiffs delivered to the defendants a package of bank bills, amounting to $1109, to be carried by the defendants from Burlington to Plattsburg, and there to be delivered to Richard Yates, Esq., cashier of the Clinton County Bank, to whom the package was directed ; and the plaintiffs averred, that the…

TitovER-for a quantity of chairs. Plea, the general issue, and trial by the court, — Bennett, J., presiding.

Ejectment for land in the town of Charlotte. Plea, the‘general issue, and trial by jury, — Bennett, J., presiding.

The orator alleged in his bill, in substance, that, on the 29th day of June, 1814, one William C. Harrington, then of Burlington, made his last will and testament, and thereby bequeathed, among other legacies, one thousand dollars to the children of Phineas Hyman, and constituted the orator's intestate, Ozias Buel, and Lyman King, Phineas Lyman and the defendant his executors; that soon after the said testator deceased, and the executors accepted the trust conferred upon…

Assumpsit, to recover the price of certain property alleged to have been sold by the plaintiff to the defendant. Plea, the general issue, and trial by jury, — Royce, J., presiding.

Assumpsit lipón a contract, executed by the defendant and dated March 19, 1844, by which he promised to pay to the plaintiff, or bearer, thirty dollars in merchantable neat stock at a time and place specified.

The plaintiff alleged in his declaration, in substance, that he purchased of Caldwell, in his life time, a number of sheep, and that Caldwell, by falsely and fraudulently warranting the sheep to be sound, and free from the disease called the foot rot, sold the same to the plaintiff; and the plaintiff averred, that the sheep were not sound, and free from said disease, and that Caldwell deceived the plaintiff in the sale, and that the plaintiff had suffered special damage…

Trover for a horse. Plea, the general issue, and trial by jury, Royce, J., presiding. The defendant had attached the horse in question, in due course of law, as the property of one Daniel Blackstone.

Trespass quare clausum fregit. It was alleged, in the declaration, that the defendants, on the seventeenth day of October, 1842, broke open the door of the… Held: that an officer, to serve process, might break open a store, warehouse, or barn, as well as the inner door of a dwelling house, trunks, &c., even without request to the owner to open. Wats, on Sheriffs 43, 59. Haggerty et al. v. Wilber et al., 16 Johns. 287. 4 Bac. Ab., Sheriff N 3. Petersd. 397, 596 in potes.

Trespass for taking a horse. Plea, the general issue, and trial by jury.

<p>This was a complaint by a town grand juror, founded on the first section of chapter eighty two of the Revised Statutes,* and came to the county court by appeal from the judgment of a justice of the peace. Plea, not guilty, and trial by jury, — Bennett, J., presiding. It was averred, in the complaint, that the defendant had exercised secular labor on the sabbath day; but it was not alleged, that it was not a work of necessity, or charity. After a verdict of guilty the respondent moved in arrest of judgment, for insufficiency of the complaint. The motion was overruled by the court; to which decision the respondent excepted. Exceptions were also taken on the trial of the case; but as no decision was made upon them by the supreme court, they need not be stated.</p> <p>The rule is fully settled, that, when a criminal or penal statute contains an exception in the enacting clause, that exception must be fully negatived in the indictment, or complaint. 1 Com. Dig., Action upon Statute, A 3. Denoe v. Commonwealth, 3 Met. 316. Commonwealth v. Tuclc, 20 Pick. 356. Crandall v. State, 10 Conn. 339. 1 Met. 263. 1 Chit. Cr. Law 285. Spiers v. Parlcer, 1 T. R. 141. Rex. v. Jarvis, 1 Burr. 148. Commonwealth v. Maxwell, 2 Pick. 141. King v. Mayor of Liverpool, 3 East 85. Jones v. Axen, 1 Ld. Raym. 120. Rex v. Juices, 8 T. R. 536, 542. Nor can it be urged, that the exception, in this case, is not within the enacting clause of the statute. It is embraced within the same clause, that defines and creates the offence, and constitutes part of the description of the offence.</p> <p>The objection to the complaint is founded upon a technical rule of pleading, which is not applicable to town grand juror’s complaints. They are not treated with the same strictness as indictments. They are amendable, even after an appeal to the county court. 6 Vt. 488. The exception in the statute, in this case, is mere matter of defence, and need not be noticed in the complaint; When a statute contains pvovisos and exceptions, in distinct clauses, it is not necessary to state in the complaint, that the defendant' does .not come within the exceptions, nor to negative the provisos. 1 Chit. Cr. Law 288. 1 Str. 555. 2 Burr. 1037. 1 W. Bl. 230. 5 T. R. 83. 2 Str. 1101. 1 East 646. 1 W. Bl. 230. And it is immaterial, whether the proviso be contained in the enacting clause, or be subsequently introduced in a distinct form. It is the nature of the exception, and not its location, which determines this point. 1 Chit. PI. 229 (n.) 1 Johns. 513. 3 Johns. 438. 4 Johns. 304.</p>

<p>The Statute, which imposes a penalty for having in possession any mould, pattern, die, &c., adapted or designed for coining, is intended to reach every part of the apparatus of coining, however much more might be necessary to make that effective. Therefore, if it be shown that the respondent had ■in his possession one half of a mould, it is sufficient, without proof that he also had the other half.</p> <p>An allegation, in an indictment, that the respondent “ ten pieces of false, forged and counterfeit coin and money ” &c,, “unlawfully and feloniously - did forge, make and counterfeit ” &c., is sufficient. The ambiguity arises only from the different sense in which the word “ counterfeit” is used.</p> <p>An indictment for having in possession counterfeit coin need not aver, that the denomination of coin, which was counterfeited, was “ current by law, or usage, in this State,” it being averred, that the coin was one of the current silver coins of the United States. The court will take judicial notice, that the cur rent coins of the United States áre current also in this State.</p> <p>In such indictment it is not necessary to aver of what materials the counterfeit coin was made ; and if averred, it need not be proved.</p>

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported, in substance, that the account presented by the plaintiffs against the defendant consisted of charges for freight of lumber; that, at the time the charges accrued, the defendant was a partner with one Amos Palmer and jointly interested with him in the lumber transported by the plaintiffs; that it was a matter of public notoriety, in the vicinity where the' business…

Assumpsit upon a promissory note, bearing date March 31, 1836, and made payable to Luther Haven, or bearer, in four years from date, with interest; and the plaintiff averred, in common form, that he was the lawful bearer of the note.

Trustee Process. The trustee disclosed, at the June Term, 1844, of Addison county court, that he had no goods &c. of the principal debtor, Davis, in his hands, or possession, except that in the preceding March, Davis had permitted the trustee to take a wagon, belonging to him, to use; that he did not purchase the wagon, nor agree upon any price for the use of it; that Davis had controlled the wagon when he pleased, and the trustee had used it in his business, when necessary;…

Audita Querela. The complainants alleged, in substance, that the defendant, on the first day of June, 1842, sued out a writ against them upon a promissory note, which note purported to be signed by A. Rutherford, Aaron Spaulding & Co. and Uriah F. Arnold, and that service of said writ was made, as appeared from the officer’s return by attaching certain cloth, as the property of Rutherford and Aaron Spaulding & Co., and by delivering to one M. S. Dorrance, clerk of said Aaron…

Ejectment for land in Middlebury. Plea, the general issue, and trial by jury, — Bennett, J., presiding. On trial the plaintiff claimed title to the demanded premises by virtue of a deed, duly executed and recorded, from Russell Bly to himself.

Ejectment, founded upon, a mortgage. Plea, the general issue, and trial by the court, — Bennett, J., presiding.

The plaintiff declared, in substance, that an alias execution in his favor against William P. Hooker and Charles Hooker, issued upon a legal judgment and dated July 29, 1842, and running against the bodies of the said debtors, was, on the ninth day of August, 1842, delivered by him to Adnah Smith, then sheriff of Addison county, and that Smith neglected to arrest the bodies of the debtors thereon, although he had an opportunity to have arrested them within the life of the…

The bill was brought to foreclose the equity of redemption in certain lands, mortgaged by the defendant Brown to the orator; and the orator alleged, that Brown had conveyed the same lands to the defendant Austin, subsequent to the execution of the mortgage to the orator.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported, in substance, that the account presented by the plaintiff consisted mainly of a charge for certain personal property, which was sold by the plaintiff to the defendant, September 33,1843, for two hundred dollars, under an agreement that it was to be paid for by three promissory notes, one for fifty dollars, to be signed by the defendant and made payable in February,…

Book Account. This action came into the supreme court at the January term, 1844, upon exceptions to the decision of the county court therein, and the judgment of the county court was reversed and the case again sent to an auditor by this court. And now the auditor returned to the court his report, finding a balance due to the defendant of $14,42, and stating the facts substantially as follows.

Debt on jail bond. The plaintiff averred in his declaration, that at the April Term, 1842, of Rutland county court he recovered judgment against the defendant Cleaveland for a… Held: that the plea of nil debet, to an action on a specialty, or record, is defective in its nature and ill on general demurrer. Gould’s PJ. 310. 2 Wils. 10. 2 Sir. 778. 5 Burr. 2586. 2 Ld. Raym. 1503. 1 Saund. R. 38, n. 3. 2 Saund. R. 187, n. 2. 1 Chit. PI. 478, 518. Gates v. Wheeler, 2 Hill 232. 2.

Audita Querela. It was alleged in the complaint, that the plaintiff, Lincoln, was an insane person, under guardianship, and that, while he was in… Held: that a person non compos must appear by guardian, if within age, but by attorney, if of full age. 2 Saund. R. 333. In the case of infants there is a general inability to act. In this case a special regulation is made by statute; and a distinctionis made in the early cases between infants and other persons under guardianship.

Trespass on the Case, brought to recover for loss of service, &c., sustained by Benjamin Whitney, subsequent to the twenty eighth day of February, 1840, in consequence of personal injuries occasioned to his minor son by the breaking down of a bridge, which it was the duty of the defendants to keep in repair. Plea, the general issue, and trial by jury, — Williams, Ch. J., presiding.

Trespass on the Case, for the destruction of certain pew rights, of which the plaintiff claimed to be seized and possessed in the old congregational meetinghouse in Benson. Held: that a parish may destroy a house, when it is in a ruinous and decayed condition, are put on the ground of local statute laws in relation to parishes, and are quite inapplicable to voluntary associations, under general laws, giving such association corporate powers.

Trespass on the Case for injury to the reversionary interest of the plaintiff in certain personal property, with a count in trover for the same property. Plea, the general issue, and trial by jury, — ■ Williams, Ch. J. presiding.

This was an action of trespass on the freehold, originally commenced before a justice of the peace, and entered in the county court, by appeal of the defendant, at the September term, 1842. At the April term, 1843, judgment was rendered, on trial, in favor of the plaintiff.

Trespass qitare clausum fregit. Plea, the general issue, with notice, and also plea of license, and trial by jury, — Williams, Ch. J., presiding.

Assumpsit upon a policy of insurance. The plaintiffs alleged in. their declaration, that, on the tenth day of June, 1837, one Alvah Hawks, being the owner in fee of a certain tavern house and other buildings in Woodford, which were subject to a mortgage to the plaintiff Swift for $1400, made application to the defendants for insurance on said buildings, and on certain property therein, for the benefit of both Hawks and Swift; that the defendants thereupon made and delivered…

Audita Querela. It was alleged in the complaint, in substance, that the defendant had heretofore caused a writ of attachment, in his favor, to be served upon the complainant, returnable on the tenth day of March, 1845, at nine o’clock in the forenoon, at the office of Sargeant and Fowler in Manchester; that the complainant attended, with his counsel, at the time and place specified, but that the justice of the peace, before whom the writ was returnable, was absent; that the…

Petition for partition. The defendant pleaded, that he was not tenant in common with the petitioner of the premises described in the petition. Trial by the court, — Williams, Ch. J., presiding.

In this case two justices of the peace made an order on the third day of April, 1843, pursuant to the provisions of the statute, that .one Rhoda Comstock, a pauper, remove, with her family and effects, from the town of Landgrove to the town of Pawlet on or before the fifteenth day of April, 1843. On the fourteenth day of January, 1845, a warrant of removal was issued, and the pauper was removed on the twenty fourth day of January, 1845.

Appeal front commissioners appointed by the probate court. The action, and all matters in dispute between the parties, was referred, under a rule of the county court, to referees, who reported, that the plaintiff presented before them an account against the testator, commencing in the year 1837, and which accrued from time to time between that year and the year 1844, and that the defendants presented in offset thereto, among other things, two promissory notes, signed by the…

Book Account. The action was commenced originally before the county court. Judgment to account was rendered, and an auditor was appointed, who reported, that there was a balance due to the plaintiff from the defendants of thirty two dollars and sixty six cents.

Book. Account. The case went to an auditor, who reported, that he found due to the plaintiff, at the commencement of the action, five dollars and seventy seven cents; that the action was commenced on the seventh day of March, 1844, and the writ was made returnable before a justice of the peace on the sixteenth day of the same month; that on the fourteenth day of March witnesses had been summoned and cost had accrued to the amount of two dollars and eighty cents; that on the…

In the county court the plaintiffs filed a declartion on book account, on which judgment to account was rendered, and auditors were appointed, who reported, that there was a balance due to the plaintiffs of one hundred and eighty one dollars and fifty cents. It appeared, that the plaintiffs’ account accrued for services rendered by the plaintiff Mrs. Gay, during coverture, to the testator, and that the testator promised, that she should be well paid for them.

Account. The plaintiff alleged, in his declaration, that the plaintiff and defendant were tenants in common of a farm and certain personal property, and that the defendant was bailiff of the plaintiff of the same from the first day of April, 1840, until the first day of April, 1841.

Indebitatus Assumpsit, for money had and received, and for . money paid, laid out and expended. Plea, the general issue, and trial by jury, — Hebard, X, presiding.

Trespass. The plaintiff alleged in his declaration, that the defendants, on the first day of December, 1840, and on divers other days and times between that day and the tenth day of May, 1841, with force and arms broke and entered the plaintiff’s barn and took and carried away his hay. Plea, the general issue, with notice of special matter of defence, and trial by jury, — Hebard, J., presiding.

Petition for partition. The petitioner alleged, that he acquired title to the estate, described in his petition by virtue of an attachment and the levy of an execution, in his favor, and he averred, that each of the other defendants had title with him, as tenants in common of the estate.

<p>In Chancery.</p> <p>A mortgagee has no attachable interest in the lands mortgaged.</p> <p>If the orator have a full remedy at law for the right which he asserts, his bill in chancery, by which he seeks relief, will be dismissed, with costs.</p> <p>In this case, the defendant having attached, as the property of the mortgagee, the lands of which the orator was in possession under title derived from the mortgagor, and having levied his execution thereon and commenced an action of ejectment against the orator to recover the possession of the premises, it was held, that the orator had a full defence at law to the action of ejectment; and his bill in chancery, brought to obtain a perpetual injunction of the suit at law, was dismissed, with costs.</p> <p>But, inasmuch as the defendant was in some measure in the wrong, in attempting to gain a title to the premises by levy upon them as the property of the mortgagee, he was only allowed his costs in this court.</p> <p>And the mortgagee having assigned the mortgage notes, without any written assignment of the mortgage, and the assignee having delivered the notes to a third person, as collateral security for certain advances, the orator joined such third person as defendant in the suit; and it was held, that, although the bill was not drawn strictly with a view of allowing the orator to redeem, yet that it might with propriety be changed into such a bill, but that the assignee of the mortgagee must be joined as a co-defendant; and the case was remitted to the court of chancery for the purpose of enabling the orator to amend, by adding new parties, in the discretion of the chancellor.</p> <p>The orator cannot be allowed to make a different case by his evidence from that stated in his bill.</p>

Assumpsit upon a promissory note for $500,00, signed by the defendants, and made payable to the plaintiff, or order, in six months from date, with interest. Plea, the general issue, and trial by jury, Hebard, J., presiding.

Assumpsit upon a promissory note for three hundred dollars, dated June 10, 1843, signed by the defendant, and made payable to the plaintiff, or bearer, in sixty days after date. The declaration contained also a count for money had and received. Plea, the general issue, and trial by jury, — Hebard, J., presiding.

Trespass on the Case against the defendant, as sheriff of the county of Windsor, for not paying to the plaintiff money collected by one Nichols, a deputy of the defendant, upon an execution in favor of the plaintiff. Judgment was rendered against the defendant by default, and the case came on for the assessment of damages by the jury, — Hebard, J., presiding.

Trespass for taking a shearing machine. The case was submitted upon a statement of facts, agreed to by the parties, from which it appeared, that in 1836 the defendant, being the owner of the machine in question, lent it to one Freeman, to use in his business as a clothier, who was to pay a yearly rent therefor, and in whose possession it remained until the year 1841, when it was sold at sheriff’s sale, on execution, as the property of Freeman, and ohe Richmond became the…

Ejectment for about six and a half acres of land in Reading. Plea, the general issue, and trial by jury, — Hebard, J., presiding. The plaintiff and defendant both claimed title to the land in question from Benoni Buck, deceased, the defendant as being one of the heirs of Benoni Buck, and the plaintiff through John L. Buck, who was also one of the heirs.

Habeas Corpus. The complainant alleged, that, on the eighteenth day of May, 1846, he was committed to jail upon an execution against him in favor of Norcross & Wood, issued upon a judgment rendered by Windsor county court, which execution was signed by Norman Williams, clerk of-the court; that on the day of his commitment he procured the requisite bond for his admission to the liberties of the prison; and that on the sixteenth day of July, 1S46, he was re-committed to jail…

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

Trespass for taking a cow. Plea, the general issue, with notice of special matter of justification, and trial by jury, — Bennett, J., presiding. Held: that the action of trespass could not be sustained by the plaintiff, and rendered judgment for the defendant. Exceptions by plaintiff.

The orators alleged in their bill, in substance, that in 1836 Thomas S. Hobart and William Foster applied to the orators Joseph Blodgett, Eli Blodgett and William Nutting, and to the intestate Seth Washburn to sign with them a note for three thousand dollars to the Bank of Orange County, and agreed to secure them therefor by a mortgage of the real estate owned by them jointly, and also by a mortgage of certain real estate owned by them individually, — it being understood,…

Trespass for chasing and worrying cattle with the dog of the defendants, thereby causing the death of a certain heifer. Plea, the general issue, and trial by jury, — Bennett, J., presiding.

<p>The county of W. being about to erect a court house, the plaintiff, being interested in having it located in a particular place, signed a subscription paper, promising to pay the sum affixed to his name “ for land sufficient to set the court house upon ” at that spot, provided it was located there. The defendant, who was the owner of the land, thereupon executed a deed to the county of the land specified, reserving a reversionary interest in the land, in case the county should at any time cease to occupy it for the court house. After this deed was executed and recorded, the plaintiff paid the amount of his subscription. The court house was accordingly erected, and was consumed .by fire two years afterwards, and the county then determined, that they would not rebuild the court house on that place, unless they could have the' remainder of the lot, free of expense to the county; and it was accordingly purchased of the defendant at a price equal to what the whole value of the lot was previous to the first purchase. And it was held, lhat these facts did not entitle the plaintiff to sustain assumpsit for money had and received against the defendant, to recover back the amount of his subscription.</p>

Indebitatus Assumpsit for money paid, laid out and expended. Plea, the general issue, and trial by the court, — Redfield, J., presiding.

Indebitatus Assumpsit for goods sold and delivered. The defendant Mann was dismissed from the case, without costs, upon his plea of a discharge in bankruptcy. The other defendants pleaded the general issue and the statute of limitations; but the only question made in the case was in reference to the latter plea, to which the plaintiffs replied a new promise. Trial by jury, — Redfield, J., presiding.

Assumpsit upon a promissory note, not negotiable. The defendant filed in offset his declaration on book account against the plaintiff, pursuant to the statute, and recovered judgment thereon for a balance in his favor, and pleaded the same in offset to the plaintiff’s claim upon the note, averring that the account, upon which that balance was founded, accrued to him long prior to the execution of the note in suit.

Assumpsit upon a promissory note, executed by the defendant, and made payable to Joseph A. Wing, or order, and by Wing indorsed to the… Held: that a note lost its negotiability by reason of any decree in bankruptcy, or that the assignee, or indorsee, of a note signed by a bankrupt, or an infant, which had been revived after decree in bankruptcy, or after the defendant had arrived at full age, or after the statute of limitations had been removed by an admission of the debt,…

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. The plaintiff presented an account for a horse and some calves, sold by him to the defendant, which amounted, with the interest, to twenty six dollars and forty three cents. It appeared, that the plaintiff, in June, 1843, had demands in his hands, as an attorney, for collection, against one Stockwell, and, among others, a demand in favor of one Snow.

Trespass on the Case against the defendant, as sheriff of the county of Washington. Held: that the jailer might well permit the debtor to depart, on account of the defect in the copy left with • him. Judgment for the defendant. Exceptions by plaintiff. 1.

Trespass for taking a quantity of grain and a harness. Plea, the general issue, and trial by the court, — Rebeield, J., presiding. Held: that the plaintiff had not taken sufficient possession of the property to entitle him to maintain trespass against the defendant. Exceptions by plaintiff. Smith was the person in possession of the premises, when the property was taken.

Petition for a new trial. The facts in the case, on which the decision was founded, sufficiently appear in the opinion of the court, — which was delivered by

Trespass for taking a quantity of hay. Plea, the general issue, with notice of special matter of defence, and trial by jury, — Red-field, J., presiding. The plaintiff claimed title to the hay in question by virtue of a sheriff’s sale of the same, as the property of Henry C. Frink, to the plaintiff, on the seventh day of December, 1843, on an execution in the plaintiff’s favor against Frink.

Trespass quare clausum fregit. Plea, the general issue, and trial by jury, — Redfield, J., presiding.

Trespass quare clausum fregit. Plea, the general issue, and trial by the court, — Redfield, J., presiding. On trial the plaintiff proved their title to the locus in quo, and their possession of the same, and the acts of trespass thereon committed by the defendants.

Trespass quart clausum frcgit. Plea, the general issue, with notice that the defendant would prove, in defence, that the title to the locus in quo, previous to the time of the commission of the supposed trespasses, was in one Ebenezer Parkhurst, and was conveyed by him to Darius Spaulding and Allen Spaulding, and that the alleged acts of trespass were committed by the defendant by their license and permission. Trial by jury, — Redfield, J., presiding.

This was an action on book account. Judgment to account was rendered, and an auditor was appointed, wbo reported a balance due to the plaintiff; and the report was accepted by the county court.

<p>Although a debtor denies his indebtedness, yet, if he expresses a willingness to settle it, if established, and the indebtedness is proved to have existed, the admission is sufficient to take tbe case out of the statute of limitations.</p> <p>The attorney in a case has not power, as such, to employ assistant counsel in the suit at the expense of his client; and an employment by him will not bind his client, unless it can be fairly inferred, from the facts in the case, that such authority was given to him by the client.</p>

In the county court the plaintiff filed a declaration, containing a count on book account, and also counts in indebitatus assumpsit for money had and received, money lent, and money paid, laid out and expended. On the count upon book account judgment to account was rendered, and an auditor was appointed, who reported the facts as follows.

Trespass on the Case, to recover for an injury occasioned to the plaintiff’s wife by reason of the insufficiency of a highway, which the plaintiff alleged it was the duty of the defendants to keep in repair. Plea, the general issue, and trial by jury, — Redfield, J., presiding.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported that the plaintiffs presented an account against the defendant for a cooking stove and pipe, in reference to the sale of which the facts were as follows.

<p>The decision of the county court upon questions of fact, pertaining to the liability of a person summoned as trustee, cannot be revised by the supreme court upon exceptions.</p> <p>The declarations of the principal debtor cannot be received as evidence against the trustee.</p>

Trespass on the Case for an injury to the plaintiff’s mare, which caused her death. Plea, the general issue, and trial by jury, Redfield, J., presiding. On trial the plaintiff gave evidence, tending to prove that the injury to the mare, for which the defendant was liable, occasioned the death of the mare, but did not give evidence of any other damage being thereby occasioned.

Trespass for assault and battery, and for taking and carrying away a stove, the property of the plaintiff. Plea the general issue, with notice of special matter of defence, and trial by jury, — Red-field, J., presiding.

Trespass quare clausum fregit. Plea, the general issue, and accord and satisfaction, and trial by jury, — Redfield, J., presiding. On trial the plaintiff proved his title to the land described in his declaration, and also proved, that, some years ago, he took possession thereof.

The orator alleged in his bill, that, so long ago as the year 1790, divers persons, residing in Ryegate and its vicinity, formed themselves… Held: by this court, null and void. The members of that presbytery, who tried and condemned him, were not a legal court, for that purpose ; his accusers were his judges; and those competent to try him were, by an unparalleled manoeuvre, excluded from their seats. These proceedings were had at the pro re nata meeting of November, 1837.

Indictment for polygamy. The allegations were, that the respondent, “ on the eighth day of July, 1819, at Whitestown, in the ' county of Oneida and state of New York, did marry one Hannah ‘ Parkhurst, and her, the said Hannah, then and there had for his ‘ wife, and to her, the said Hannah, then and there was married, ‘ and that the said William Palmer, afterwards, to wit, at Littleton, ' in the county of Grafton, and State of New Hampshire, on the ‘sixth day of May, 1843,…

Indictment for open and gross lewdness and lascivious behavior, founded on chapter 99, section 8, of the Revised Statutes.* In the first count it was alleged, that the respondent, on the 25th day of May, 1844, did expose and exhibit his private parts, in a most indecent situation and posture, to divers persons, with intent to excite in their minds lewd and unchaste desires and inclinations.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts, as follows. In 1841 the plaintiff agreed to make for the defendant a good wooden pump for eleven dollars ; and, if the pump was not a good one, the plaintiff was to have nothing for making it. Accordingly the pump was made and placed in the defendant’s well, in November, 1841.

<p>In this case the plaintiff filed his new declaration, in the county court, against the defendant, in two counts; — The first count averred, that the plaintiff purchased of the defendant a certain mare and colt and paid therefor sixty dollars ; that the defendant thereupon promised, that the mare was sound; that the mare was in fact unsound, and of no use to the plaintiff; and that thereby the defendant became indebted to the plaintiff in the sum of sixty dollars, for so much money had and received; and the count concluded in common form of a count in indebitatus assumpsit for money had and received.</p> <p>The second count was in these words; — “ And whereas also, af- ‘ tenvards, to wit, on the 11th day of October aforesaid, at Sutton ‘ aforesaid, in consideration that the said John, at the like special ‘ instance and request of the said Isaac, woald buy of him, the said ‘ Isaac, a certain other mare and colt, as aforesaid, at and for a cer- ‘ tain other price or sum of money, then and there agreed on between ‘ him the said John and him the said Isaac, he the said Isaac under- ‘ took and then and there faithfully promised the said John, that the ‘ said last mentioned mare then was sound, so far as he (meaning the ‘ said Isaac) knew ; which said last mentioned promise and under- ‘ taking, he, the said Isaac, then and there well knew was false;</p> <p>‘ and the said John avers, that he, confiding in the said last men- ‘ tioned promise and undertaking of the said Isaac, did afterwards ‘ to wit, on the 11th day of October aforesaid, buy the said last men- ‘ tioned mare and colt of the said Isaac, and then and there paid ‘ him for the same the sum of $60,00, the same being the price agreed' ‘ on between the said parties, as aforesaid ; nevertheless the said ‘ Isaac, contriving and fraudulently intending to injure the said John,</p> <p>1 did not perform, or regard, his said last mentioned promise and ‘ undertaking, so by him made, as aforesaid, but thereby craftily and ‘subtly deceived and defrauded the said John in this, to wit, that ‘ the said last mentioned mare, at the time of the making the said ‘last mentioned promise and undertaking of the said Isaac, was not ‘ sound, but, on the contrary thereof, was at that time unsound,—</p> <p>‘ which he the said Isaac then and there well knew ; — by reason of ‘ which the last mentioned mare and colt became and were of no ‘ use, or value to the said John; — whereby the said Isaac then and ‘ there became and was indebted to the said John in the sum of ‘ $60,00, for so much money had and received by the said Isaac to ‘the use of the said John; and, being so indebted, he, the said ‘ Isaac, in consideration thereof, afterwards, to wit, on the 10th day of November, 1844, promised the said John to pay him the same sum ‘ on demand : Yet, though often requested, the said Isaac hath never ‘ paid the same, but wholly neglects and refuses so to do.”</p> <p>After verdict for the plaintiff the defendant moved in arrest of judgment, — assigning, as causes, — 1, That the plaintiff had joined two different causes of action in his declaration, — his first count being in assumpsit and his second count in case, sounding in tort;— 2, That the particular unsoundness, on which the plaintiff relied, as a breach of the warranty, was not stated in either count; — 3, That the plaintiff, in both counts, declared for money had and received, but did not aver, that the contract of sale was ever rescinded, or that he ever offered to return the mare and colt to the defendant ; — 4, That the second count contained two distinct causes of action, — the first being in case, and the second in assumpsit for money had and received; — 5, That it was not sufficiently alleged, in the second count, that the mare was unsound at the time of the sale from the defendant to the plaintiff; — 6, That the declaration was uncertain and insufficient. Other causes were alleged, but were not urged at the trial in the supreme court.</p> <p>The county court, — Royce, J., presiding, — overruled the motion in arrest and rendered judgment for the plaintiff upon the verdict. Exceptions by defendant.</p> <p>1. The defendant insists, that the first count is in assumpsit upon a general warranty of soundness, and that the second count is in case, sounding in tort, and cannot be joined with assumpsit. The second count charges, in substance, that the defendant represented the mare to be sound, knowing that she was unsound. Here, then, is not only a false and fraudulent assertion, but a wilful suppression of the truth. There could be no recovery upon the count, without proof of the scienter; and that involves a tort. It is well settled, that a count in assumpsit cannot be joined with a count in case. 1 Saund. PI. & Ev. 512. 1 Chit. PI. 181. 1 Johns. 502.</p> <p>2. The plaintiff, in each count, blends a count for money had and received; and it is impossible to say, that the verdict is to be taken to have been found on part of a count; hence the verdict was as much for money had and received, as for any thing else. But it is well settled, that, where there is an express warranty, and the contract remains unrescinded, the remedy for a breach of the warranty is by an action upon the warranty, and not for money had and received. 1 T. R. 133. 2 Cowp. 818. 3 Stark. Ev. 16G7. That part of each count, which goes for money had and received, cannot be rejected as surplusage; for the only breach of duty, or obligation, of which the plaintiff complains, is in not paying over the money alleged to have been received by the defendant to the use of the plaintiff, — so that, if this part of the declaration be stricken out, it leaves the declaration without any allegation of default on the defendant’s part.</p> <p>3. The declaration in this case does not conclude with any ad dammtm. 1 Chit. PI. 356.</p> <p>The declaration seems to have been framed with a view to recover liquidated damages, and in this light appears unexceptionable. The counts differ only in this, that one states a promise on warranty, absolute, the other conditional; and in the second count, to negative the warranty, the defendant’s knowledge must be averred, that is, the falsity of the warranty implied a scienter. Both counts aver the defendant’s promise, and both allege the breach of the promise as the grievance. But even if the averment, that the defendant knew the promise to be.false, renders the declaration equivocal, the count, by reference to the subject matter, is to be taken to be a count in assumpsit. Wright v. Geer, 6 Vt. 151.</p> <p>The want of an allegation of the particular unsoundness is sufficiently cured by the verdict. Martin v. Blodgett et al, 1 Aik. 375.</p> <p>The objection, that the second count contains two distinct causes of action, cannot be raised after verdict. Gould’s PL, Tit. Duplicity. Whyte v. Rysden, Cro. Car. 20.</p>

Trustee Process. The trustees disclosed, interrogatories and answers were filed, and testimony was taken ; and the.county court, —Royce, J., presiding, — decided, that the trustee was not chargeable. Exceptions by plaintiff.

Trustee Process. The trustee disclosed, that in 1842 the principal debtor, who was his father, conveyed to hint all his property, amounting to about five hundred dollars, as a consideration for the support of himself and wife, during their lives, by the trustee; that his father was very infirm, and unable to do any business, and this was the sole inducement to the trustee to enter into the contract ; and that the trustee knew, at the time the contract was made, that the debt…

<p>Trover will lie against an officer, who takes property upon an execution, which is, by law, exempt from attachment.</p> <p>In such action, brought against the officer by the execution debtor, who is the owner of the property attached, the property being exempt from attachment, the writ need not be served upon the officer eighteen days before the return day.</p> <p>If a debtor, being possessed of several cows, sell all but one, and, that one being attached, and sold on execution, bring trover against the attaching officer, the question may be submitted to the jury, whether the sale of the other cows was intended to operate an actual transfer of the property, or was merely colorable, not intended to change the ownership. It is not sufficient, to entitle the defendant to recover, to prove merely that the sale of the other cows was fraudulent in fact; for, if so, those cows might be taken by the creditors of the plaintiff.</p>

<p>Trespass on the Case against the defendant, as sheriff, for the default of his deputy, John Locke, in not levying and returning an execution in favor of the plaintiffs against Charles M. Cowles. Plea, the general issue, and trial by jury, — Royce, J., presiding.</p> <p>On trial the plaintiffs offered in evidence the original files in the suit in their favor against Cowles, being the writ, and officer’s return thereon, and the minutes made on the back of the writ, by the justice of the peace to whom it was made returnable, and the evidence of the justice, to identify the files, as evidence to prove the judgment described in their declaration; to all which the defendant objected, but the evidence was admitted by the court. Before the testimony was closed, however, the plaintiffs offered the record of the judgment, made by the justice, which was admitted, subject to all exceptions, and was in these words; — “ At a court before me at Irasburgh, in Orleans County, August 28, 1840, Geo. & L. S. Nye recovered judgment, by default, vs. Chas. M. Cowles, for $68,27, damages, and $1,51, costs of suit; — J. Chapman, Justice of Peace."</p> <p>The plaintiffs also offered in evidence a writing, signed by the said John Locke, as deputy sheriff, in these words, — “Rec’dthe following executions for collection, dated the 28th Aug. 1840, and signed by J. Chapman, Just. Peace, Sept. 25, 1840,” and specifying, amóng other executions, the one in question, against Cowles, and also parol evidence, that this writing was intended to be a receipt for that execution, and that the words “ Sept. 25,1840,” were designed to express the date of the receipt. To this evidence the defendant objected; but it was admitted by the court. The receipt of the execution by Locke was also sworn to by him, as a witness for the defendant.</p> <p>The defendant then offered evidence, tending to prove that the execution against Cowles was controlled by the plaintiffs, before its expiration, and while in the officer’s hands, and also evidence, tending to show that the execution had been paid by Cowles to the plaintiffs, by an order for ten dollars, drawn by one Allen upon one of the plaintiffs, in favor of Cowles, and by the application of part of an order for eighty five dollars, drawn by the selectmen of the town of Irasburgh in favor of Cowles, and by twenty five dollars in money. The plaintiffs then offered in evidence, for the purpose of disproving the fact of payment, and of showing that the order for $85,00 had been paid without application upon this execution, an entry upon a book, kept by the plaintiff George Nye, as treasurer of the town of Irasburgh, which entry was in these words, — “ Geo. Nye, Town Treasurer, Cr., — 1842, Jan. 1. By C. M. Cowles’ order, dated 24 Nov. 1841, 85,00 ” to the admission of which the defendant objected, but the objection was overruled by the court. It was proved, that the book containing this entry was the town treasurer’s book, which had passed with the office, and in which accounts were kept of the receipts and disbursements of the public money.</p> <p>Verdict for plaintiffs. Exceptions by defendant.</p> <p>1. It was error in the county court in admitting the justice’s files and the testimony of the justice, to prove the judgment. Strong et al. v Bradley, 13 Vt. 9.</p> <p>2. The receipt, so called, and the parol evidence, to show that it was intended as a receipt, were, or the latter, at least, was, inadmissible.</p> <p>3. The book of the plaintiff Geo. Nye, which he kept as town treasurer of Irasburgh, was erroneously admitted. 3 Johns. 226. 1 Stark. Ev. 298, 299. The entry was res inter alios acta. 17 Johns. 182. 1 Stark. Ev. 311. Jacobs v. Putnam, 4 Pick. 108. 5 Vt. 313, 556.</p> <p>1. The original files of the justice were competent and sufficient evidence. Story v. Kimball, 6 Vt. 541. Lowry v. Cady, 4 Vt. 504. Barnard v. Flanders, 12 Vt. 657. But in truth the whole record was offered in this case, and the files became and were an essential part of the record; and, from an inspection, the court found such a judgment, as the declaration set forth.</p> <p>2. The receipt and the parol evidence, to explain it, were competent evidence.</p> <p>3. The town treasurer’s book was properly admitted. It was a book of a public officer, passing with the office, and a book that the treasurer was required, by law, to keep. Rev. St. 92, § 52. 1 Stark. Ev. 194. Marriage v. Lawrence, 5 E. C. L. 245. Price v. Littlewood, 3 Camp. 288. Hutchinson v. Pratt et al. 11 Vt. 402.</p>

Ejectment for lot No. 28 in the first division of lands in Newport, drawn to the original right of the first settled minister. Plea, the general issue, and trial by jury, — Royce, J., presiding.

Ejectment for certain quarries of limestone. Plea, the general issue, and trial by the court, — Royce, J., presiding. On trial the plaintiff gave evidence tending to prove his title to the quarry demanded, acquired in 1837, and also gave in evidence a quitclaim deed of the same quarry from E. P. Batchelder to the defendant, dated April 10, 1838.

Trespass on the Case. The plaintiff alleged in his declaration, in substance, that, on the twenty sixth day of February, 1844, the plaintiff’s… Held: that the action should have been trespass; and in Ogle v. Barnes, 8 T. R. 188, decided by the same court, it was held, that case was the proper remedy,- where the defendants so negligently and carelessly steered their vessel, that it run against the plaintiff’s vessel. The case of Gates v. Miller is relied on by the defendant.

Trespass on the Case against the defendant, as sheriff, for default in serving a writ of audita querela.

Trespass on the Case. The plaintiff alleged in his declaration, that the defendant, December 1, 1839, professed to be a mill wright, and, as such, agreed to construct and put into the plaintiff’s saw mill all necessary gearing and machinery, in a good workmanlike manner ; but that the defendant put the machinery into the mill in so unskilful a manner, that the same was of little or no value to the plaintiff, whereby for a long space of time, to wit, one year, the plaintiff…