Volume 19 — Vermont Reports

The facts, as they appeared from the bill and answer and the testimony taken, were substantially as follows. In 1832 the orator, being indebted to the defendant and William Hyndman, executed to them an absolute deed of his farm in Barnet and received back a writing of defeasance.

Assumpsit on a promissory note, signed “Downer & Dana,” for 869,00, and dated November 14,1837; and the plaintiff alleged, that the defendants were partners, at the date of the note, under the firm of S. & W. Downer & Co., and that the note was given for their benefit, and for property which went to their use, and was, by mistake, signed “Downer & Dana,” instead of being signed by the style of the defendants’ firm.

Assumpsit upon a promissory note for $250, dated March 6, 1835. The action came to the county court by appeal, the plaintiff claiming, in his declaration, that there was but $98,00 due upon the note at the time suit was brought. Plea, the general issue, and trial by the court, — Redfield, J., presiding. The defendant also filed a written motion to dismiss the suit for want of jurisdiction in the justice of the peace, before whom the suit was commenced.

Assumpsit upon three promissory notes. Pleas, the general issue and statute of limitations, and trial by jury, — Redfield, J., presiding. On trial it appeared that the notes were executed more than six years previous to the commencement of the action.

■Assumpsit. The plaintiff alleged, in his declaration, that one Woodman, on the 20th day of March, 1843, at Norway, in the State of'Maine, drew his bill of exchange upon the defendant, thereby requiring him to pay to the plaintiff, or order, nineteen dollars, on demand, and that the defendant, on the first of April, 1843, accepted the said bill, and thereby became liable to pay to the plaintiff the sum therein specified, according to its tenor.

In this case, which was originally commenced against Cook and several other defendants, Cook filed a motion in the county court, alleging that at the preceding term of the court the plaintiffs voluntarily directed judgment to be entered in his favor and then called him as a witness against the other defendants, that he testified, and a verdict was rendered in favor of the other defendants, and thaf the plaintiffs then entered a review of the case as to all the defendants,—…

<p>Book Account. Judgment to 'account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows.</p> <p>In March, 1842, one Eunice Shippé, a transient person, was taken sick at the house of the plaintiff, in the town of Wolcott, and was in need of relief. On the 31st day of March the plaintiff gave notice of this to the overseers of the poor of the town, and requested them to provide for her. One of the overseers, Mr. Whitney, told the plaintiff “ to go on and take care of the girl, and he would be up and see to her.” The plaintiff did continue to take care of and support her, until she died, which was on the second day of April; and he also defrayed the expenses of her funeral. On the second day of April another of the overseers of the poor of the town went to Whitney, the overseer who had seen the plaintiff, requesting Whitney to attend to the case, saying that it ought to be seen to immediately, and informing him that he was about going out of town and could not attend to it himself. The plaintiff claimed to be allowed, for his services and expenses, the sum of $13,25.</p> <p>The county court- accepted the report of the auditor and rendered judgment thereon for the plaintiff. Exceptions by defendants.</p> <p>insisted, that the action on book account could not be sustained, upon the facts reported by the auditor ; but that the plaintiff should have founded his action upon the statute; and cited Middlebury v. Hubbardton, 1 D. Ch. 205; Dan. ville v. Putney, 6 Vt. 512; Jamaica v. Guilford, 2 D. Ch. 103 ; Houghton v. Danville, 10 Vt. 537; and Castleton v. Miner, 8 Vt. .209.</p> <p>cited Danville v. Putney, 6 Vt. 512; Hub-bell v. Gale, 3 Vt. 266; Vt. M. Fire Ins. Co. v. Cummings, 11 Vt. .503; Stone v. Berkshire Cong’l Society, 14 Vt. 86; and Washington v. Rising, Brayt. 188.</p>

<p>Assumpsit upon a promissory note, signed by the defendant Hannah White, while sole, and one Daniel Cressey, by which they jointly and severally promised to pay to one Weare Tappan, or order, $263,63, on demand with interest. The action was brought in the name of the plaintiff, as indorsee of Tappan. Plea, the general issue, with notice of special matter of defence, and trial by the court, — Royce, J., presiding.</p> <p>On trial it appeared that, in 1834, Tappan, who was then and still is the owner of the note, indorsed the note in blank, and caused an action to be commenced upon it, in the name of one Atkins as plaintiff, against Cressey, and recovered judgment therein against Cressey, and obtained part satisfaction of the judgment from him. In 1837 Tappan transmitted the note to the plaintiff, with the same blank indorsement upon it, and directed a suit to be commenced against the present defendants, for the purpose of collecting the balanee of the note, not collected from Cressey. The plaintiff filled up the indorsement to himself and commenced the suit in his own name.</p> <p>The court rendered judgment for the plaintiff. Exceptions by defendants. •</p> <p>We insist, that one and the same indorsement, by the payee, of a note signed by two persons, cannot be considered a legal transfer of the note to one indorsee as to one signer, and to another indorsee as to the other signer. Had Tappan, at the time he brought his suit and recovered his judgment on this note against Cressey, in the name of Atkins, changed his blank indorsement to a special one to Atkins, it will not be claimed, but that the legal interest in the note w.ould have been thereby vested in Atkins; and any subsequent suit against Cressey, or the other signer of the note, must have been brought in the name of Atkins. The defendants contend, however, that what was done is fully equivalent to a filling up of the indorsement by Tappan to Atkins. That separate suits can be sustained against the signers of a joint and several note is well understood ; but this cannot be done by several plaintiffs. A note may be several as to the signers; but it can never be so as to the payees, or indorsees ; their rights are always entire, or joint,</p> <p>1. The rule is settled, that a judgment against one of joint and several promissors is never a bar to an action on the promise against the others, unles the judgment is satisfied. Porter v. Ingraham, 10 Mass. 88. Ward v. Johnson et al, 13 Mass. 148. Sheeley v. Mandeville et al., 6 Cranch 253. Chit, on Bills §70.</p> <p>2. The case shows, that the note was indorsed to Atkins, and sued by him, for Tappan’s benefit solely, and without consideration. Tappan, therefore, never parted with the title to the note, and could at any time take back the note and transfer it to another person, or erase the indorsement and sue the note in his own name. Bank of Utica v. Smith, 18 Johns. 230. Bowdish v. Green, 15 Johns. 247.</p> <p>3. The plaintiff stands in the same position that Tappan would have occupied, if the suit had been brought in his name. Lovel v. Eoerton, 11 Johns. 52. The note having been delivered to the plaintiff, indorsed in blank, the plaintiff had a perfect right to fill up the indorsement to himself, and to sue the note in his own name. Dean v. Hewit, 5 "Wend. 257. Taiman v. Gibson, 1 Hill 308. Chit, on Bills 255.</p>

Audita Querela, brought to set aside an execution issued by a justice of the peace, against the bodies of the complainants, in an action of debt on judgment in favor of the defendant against them. Trial by the court, — Royce, J., presiding, — upon a case stated. The facts agreed to were substantially as follows.

Ejectment for land in Elmore. Plea, the general issue, and trial by the court, — Royce, Ch. J., presiding.

<p>'While the plaintiff was attending, as a physician, upon the father and mother of the defendant, under a contract with the father, that, “ if there was no cure there should be no pay,” the defendant executed to the plaintiff a, writing, by which he agreed to be “ holden ” to the plaintiff “ for the payment of his bill for medicine and attendance ” upon his father and mother. And it was held, that the undertaking of the defendant was collateral, merely, to the contract between his father and the plaintiff.</p> <p>In such case parol evidence is admissible to prove the terms of the original agreement between the plaintiff and the principal debtor, and to show that the plaintiff has never complied with the terms, so as to acquire a right of action against the principal debtorand if this fact be established, the plaintiff can maintain no action upon the guaranty.</p> <p>If a physician commence attending upon a patient, under a contract that if there is no cure there shall be no pay, he cannot recover for his services, or medicines, unless he show a performance of the terms of the contract upon his part.</p> <p>If the liability of the defendant is only collateral to that of another person, the action on book account cannot be sustained against him.</p> <p>Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, — the substance of whose report is sufficiently detailed in the opinion delivered by the court. The county court, September Term, 1845, — Bennett, J., presiding, — rendered judgment proforma upon the report for the defendant. Exceptions by plaintiff.</p>

Indebitatus Assumpsit for work and labor. Plea, the general issue, and trial by jury, September Term, 1845, — Bennett, J., presiding. On trial the plaintiff offered as a witness one Samuel Smith. The defendant objected to his admission on the ground of interest, and offered to prove that the work and labor declared for were performed on a contract made by the defendant with the plaintiff and witness jointly.

Indebitatus Assumpsit for money paid. Pleas, the general issue and the statute of limitations, and trial by the court. September Term, 1845, — Bennett, J., presiding.. On trial it appeared that the plaintiff and defendant and one Moore, on the twenty eighth day of November, 1833, executed a promissory note to the Branch Bank of the United States, at Burlington, for one hundred dollars, payable in sixty days; upon the face of which they appeared as co-principals.

Assumpsit upon a receipt, executed by the defendants, for property attached by the plaintiff, as sheriff on mesne process. The val» ue of all the property specified as attached was stated in the receipt to be five Hundred dollars. Plea, the general issue, and trial by jury, March T. 1845, — Bennett, J„ presiding. On trial the plaintiff gave in evidence the receipt declared upon, and then offered one Ferris as a witness.

<p>Assumpsit. The plaintiff alleged, in his declaration, that on the twenty seventh day of December, 1841, Benjamin Bishop executed a promissory note for two hundred and fifty dollars, made payable to the defendant, or order; that the defendant, on the same day, by his indorsement in writing, for value received, ordered the contents of the note to be paid to William P. Briggs, waiving demand and notice ; that Briggs indorsed the note to the plaintiff; that the note was not paid at maturity ; that the defendant thereupon became liable to pay the same to the plaintiff and in consideration thereof promised the plaintiff to pay the same to him upon request; and that the defendant had neglected to make payment, although thereto requested. To this declaration the defendant demurred.</p> <p>The county court adjudged the declaration sufficient; to which decision the defendant excepted.</p> <p>There is a clear distinction between the negotiability of paper and the liability of parties upon it. The negotiability of a note may be continued, while the liability of the indorser is limited, or withheld. The note is a promise to pay, and may contain an authority to negotiate the promise; so an indorsement may contain a contract of guaranty, and this contract may be assignable; but in both cases the assignable nature of the contract must depend on the contract of the party making it. A note to A. B. is a promise of payment; but this undertaking is not assignable; — but a note to A. B. or order is an undertaking to pay A. B. or his assigns ; and, on indorsement by A. B., every subsequent holder becomes his assignee. Hence in this case the plaintiff might have sued Bishop, on the ground that it was consistent with the contract of Bishop. Moore v. Manning, Com. R. 311. Acheson v. Fountain, Str. 557. Edie v. E. India Co., 2 Burr. 1216. The liability of the indorser is created by the contract of indorsement, and the extent of the liability must depend upon the language used. An indorsement is twofold, — a transfer of the interest of the indorser and an undertaking relative to the punctuality and ability of the maker; and hence even the same words must be construed differently, as they relate to one or the other. On anote, payable to A., or order, an indorsement “pay to B.” will transfer the note to B., so that he, or those to whom he delivers it, may collect of the maker; but the guaranty of the indorser can only be enforced by the party with whom it is made, unless there are terms of negotiability in the indorsement. The case at bar is resolved into a mere bill of exchange, drawn by the defendant on Bishop in favor of Briggs.</p> <p>The principle, that an indorser cannot restrain the negotiability of a promissory note, negotiable upon its face, when he passes his whole interest to his indorsee, is, we-apprehend, too well settled to be questioned. 2 Burr. 1218. 1 W. BI. 295. Kyd on Bills 61, 64. Str. 567. Stone v. Rawlinson, Willes 559. Vincent et al. v. Ilorlock, 1 Camp. 442. Chit, on Bills 230. 6 Bac. Abr. 676. There are cases of restrictive indorsement; but these are exceptions to the rule; and unless the indorsement express such restriction in positive terms, the instrument passes to the indorsee with as full power farther to indorse it as his indorser had. Edie v. E. India Co., 2 Burr. 1216. Moore v. Manning, Com. R. 311. 1 Selw. 344. Acheson v. Fountain, 1 Str. 557.. Cunliffe v. Whitehead, 3 Bing. N. C. 828; 5 Scott 31. Sigourney v. Lloyd, 8 B. & C. 622; 2 M. & R. 58. 5 Bing. 525. Treuttel v. Barandon, 8 Taunt. 100. Snee v. Prescott, 1 Atk. 249. 1 Bl. R. 295. Rice v. Stearns, 3 Mass. 225. Wilson v. Holmes, 5 Mass. 543. Russel v. Ball, 2 Johns. 50. Potts v. Reed, 6 Esp. R. 57. Ilaussoullier v. Hartsinck, 7 T. R. 733. Had the declaration set forth the indorsement as payable to Wm. P. Briggs, or order, the note and indorsement, without the words “ or order,” would have been admissible in support of the declarations because thkt is the legal effect of it. Smith v. McClure, 5 East 476. Frederick v. Cotton, 2 Show. 8. Fisher v. Pomfret, 12 Mod. 125; Carth. 403. 2 Stark. Ev. 153,</p>

<p>Ejectment for land in Williston. Plea, the general issue, and trial by the court, March Term, 1845, — Bennett, J., presiding.</p> <p>The plaintiffs claimed title to the premises by virtue of the levy of an execution in their favor against the defendant, and gave in evidence, among other things, a certified copy of the record of the execution and return of the levy from the office of the justice of the peace who issued the execution. The execution was dated October 10, 1842, and was made returnable in one hundred and twenty days. The officer’s return of the levy was in due form, and was dated February 7, 1843; and there was appended to it a certificate, signed by the justice, in these words, — “ Received and recorded, February 7, 1843, at six o’clock in the afternoon.” To this the defendant objected, and he offered to prove, by the justice who issued the execution, that the record was not in fact made by him until after the expiration of the life of the execution. The plaintiffs objected to this evidence, but the objection was overruled and the justice was introduced as a witness, and testified that the execution was returned to him within its life, and he then minuted upon it the true time when it was received for record, but that he did not in fact record it in his office until after the commencement of this suit. Upon this evidence the court held that the title to the premises did not pass by the levy and rendered judgment for the defendant. Exceptions by plaintiffs.</p> <p>1. The important question in this case arises upon the construction of section seventeen of chap. 42 of the Revised Statutes. By comparing that section with sections four and six of chap. 60, it will be noticed, that the language relative to the recording of deeds is far more imperative than that relating to the recording of executions. Yet it has been uniformly held, that, as between parties and purchasers with notice, a deed is good without recording. The object of the statute is notice to others. The record in the town clerk’s office is sufficient for this, or, if not, the files of the justice are as •open to inspection as his records. The actual time of transcribing a deed on the book has always been held to have relation to the time it was received into the office for record, and so, when a record is required and is made, the instrument becomes operative from its date, or execution, by retrospect, or relation. Douglass v. Spooner, N. Chip. 74. Our statute upon this subject seems to be a copy, in most of its phraseology, of the Massachusetts statute; and it has been often held there, that the actual transcribing of the return of the levy was unnecessary. Laddv. Blunt,A Mass. 403. McLellan v. Whitney, 15 Mass. 137. Prescott v. Pettee, 3 Pick. 331. 1 Sw. Dig. 795. 6 T. R. 20. The uniform construction practically given to the statute in this State is entitled to great weight, as furnishing evidence of the plain intention of the legislature.</p> <p>2. We claim, that, as the duly certified copy of the execution and return, offered in evidence, showed them to be recorded, it could not be contradicted by parol. The certificate that the execution is recorded, and of the time when it was received, is part of the record itself. Barnard v. Flanders, 12 Vt. 658. Durfee v. Hoag, 1 Aik. 286. Spalding v. Chamberlain, 12 Vt. 538. Pike v. Hill, 15 Vt. 183.</p> <p>1. The levy, under which the plaintiff claims title, is invalid,— the record not having been made in the justice’s office within the life ¿Í the execution. Downer v. Hazen, 10 Vt. 418. Hubbard v. Dewey, 2 Aik. 312. Hall v. Hall, 5 Vt. 304. Bennett, J., in Fletcher v. Bradley, 12 Vt. 22.</p> <p>2. The statute requires, that the execution be recorded, — not merely received for record. And such a levy being solely authorized by statute, the directions of the statute must be literally followed, in order to make it valid. The minute made by the justice is not even a part of the process of recording. It constitutes no notice to any one. Burton v. Pond, 5 Day 162.</p> <p>3. The evidence of the justice was properly admitted, to show when the record produced was actually made. Carpenter v. Sutoyer et al., 17 Vt. 122. Isaacs v. Chandler et al., cited in lb. Burton v. Pond, 5 Day 162. - '</p> <p>. 4. Even if the court should be of opinion, that the levy might be recorded after the life of the execution had expired, and that it would then be effectual to pass the title, it would not help the present case, since it appears that the record was not made until after the commencement of this suit.</p>

This was a petition, founded on section eight, chapter thirty three, of the Revised Statutes, praying that a judgment rendered against the petitioner by a justice of the peace, by default, might be reversed, and a trial be allowed in the case. The petition was preferred on the first day of January, 1844; and the petitioner alleged, that the judgment by default was rendered on the second day of May, 1842.

It was stated in the order, that the justices considered, that “ Henry H. Messenger with his wife Susannah H. Messenger and his four children ” had become chargeable to Burlington as paupers, and… Held: that the words “ A. and his wife B. and their children ” were insufficient. Newbury v. Brunswick, 2 Vt. 158. Bristol v. Braintree, 10 Vt. 203. 2.

Trustee Process. It appeared that Hunt, who was summoned as trustee, executed a negotiable promissory note to Douglass, the principal defendant, bearing date September 14, 1843,,and payable in sixty days; that on the twenty first day of September, 1843, Douglass, in good faith and for a valuable consideration, indorsed the note to Shephard, — who now appeared as claimant in the case; that on the fourteenth day of November, 1843, service of the writ in this case was duly made…

Trespass for assault and battery. In the first count in the declaration it was alleged that the defendant, on the first day of January, 1845, laid hold of the plaintiff and with a club and with his fists struck him a great number of violent blows upon his head and body, and shook and pulled him about, and threw him down, and then harshly and brutally kicked him and struck him other violent blows, and wounded him, and tore his clothing.

Debt upon an award. The declaration contained two counts, the first of which was traversed and the issue found for the defendant.

This was a declaration in offset, in the usual form of an action of account, filed in the county court at the April Term, 1846, at which term an action of assumpsit in favor of this defendant against this plaintiff was entered in court. The defendant entered an appearance in the action upon the docket of the court, and judgment to account was rendered, an auditor was appointed, and the action was continued.

Indictment for assault and battery upon one Green by firing at him with a gun. Plea, not guilty, and trial by jury, June Term, 1846, — Bennett, J., presiding.

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

Debt upon a recognizance, entered into by the defendant before a justice of the peace, conditioned that one Aaron Southard make his personal appearance before the county court in Addison county, at the December Term, 1844, to answer to a charge of larceny.

Trustee Process. The trustee filed a general disclosure in the county court, December Term, 1844, denying that he had any credits or effects in his hands, belonging to the principal debtors.

Trustee Process. It appeared, that the principal debtor, having been sued by the Bank of Orwell upon a debt for one thousand dollars,… Held: that the trustee was not chargeable. Exceptions by plaintiff, contended, that the trustee had in his hands $200, of the money of the principal debtor, to which he was neither legally nor equitably entitled; that this was usury, — to which point they cited Floyer v. Edioards, 1 Cowp. 112; and that the judgment by confession was no bar…

Trespass on the Case for slanderous words. In the first and second counts the slanderous words declared upon purported to charge the plaintiff with having stolen cloth. In the third count the slanderous words purported to charge the plaintiff with having stolen cloth, in the possession of the defendant, belonging to one Atwood.

Trespass. In the second and third counts in the declaration the plaintiff alleged, that the defendants made an assault upon him and took him from his dwelling house, and kept him imprisoned, without reasonable cause, in the common jail in the county of Addison for a long space of time.

Ejectment for land in Middlebury. Plea, the general issue, and trial by jury, June Term, 1846, — Bennett, J., presiding. Held: that a tenant cannot dispute the title of his landlord; and this doctrine is extended to one who enters into possession of land under a contract of purchase. Bowker v. Walker, 1 Vt. 19. Jackson et al., v. Bard, 4 Johns. 230. Tuttle v. Reynolds, 1 Vt. 80. Hodson v. Sharp, 10 East 352..

This was a declaration for betterments, — the defendant having recovered judgment against the plaintiffs in an action of ejectment for the land described in the declaration, — and was tried at the December Term, 1845, — Bennett, J., presiding.

Plea, that the paupers had not a legal settlement in Warren, and trial by jury, June Term, 1846, — Bennett, J., presiding.

This was a bill of foreclosure, in which the orator alleged, that on the fifteenth day of June, 1835, the intestate, Edward Dunshee, executed to him a promissory note for five hundred dollars, which was secured by a mortgage of certain premises; that payments were made upon this note from time to time, and subsequently a new note, dated June 15, 1838, was given for the balance remaining due upon the first note, being $393,00; and that it was agreed between them, that the new…

Upon the hearing in this court it appeared that the testimony of one witness had been taken by the master and filed in the case six months after the rule for taking testimony in the case had expired, and after the other testimony was closed. It did not appear, that there had been any special order of the chancellor for taking this testimony, or that it had been read at the hearing in the court of chancery.

<p>Where the plaintiff recovered judgment in the court below, and the defendant has brought the case into this court by exceptions, the case will not be continued, on motion of the defendant, for the alleged reason that the debt has been attached by trustee processthe case should, at all events, proceed, until the rights of the parties in this suit are finally ascertained.</p>

Book Account. The action was commenced July 19, 1844. Judgment to account was rendered, and an auditor was appointed, who reported substantially as follows. The plaintiffs presented an account against the defendant, the last item of which accrued in 1832. The defendant pleaded the statute of limitations.

JJook Account, Judgment to account was rendered in the .county court, and auditors were appointed, who reported, in substance, as follows. The plaintiff’s account accrued for professional services rendered in the city of New York.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. Held: as suggested in Burr v. Smith, 7 Vt. 281, that these associates were so far organized, that they might sue and be sued, still we insist that they remain mutually liable for their respective shares of their joint debts ; and therefore, — 1, No one of them can sue the association at law; — 2, If they can, the plaintiff’s. share of the…

Account. The plaintiff alleged in his declaration, that the parties, from July 31, 1841, until the commencement of this suit, were the joint and equal owners of lot No. 24 of the third division of lots in Mendon, and that the defendant had the charge, administration and possession of the same, and cut, sold and used timber therefrom, to the value of $1000, to render account for the same to the plaintiff, when thereunto afterwards requested.

. Assumpsit upon a promissory note. The action was commenced ’before a justice of the peace and came to the county court by appeal. At the term at which the appeal was entered, the defendant moved .that the action be dismissed, for the alleged reasons, that the original writ was made by the constable, who served the same, and that no sufficient recognizance was taken to the defendant for his costs.

Assumpsit upon an alleged warranty, that a promissory note for one hundred and fifty dollars, transferred by the defendant to the plaintiff for a valuable consideration, and purporting to be signed by Theodore Woodward and John H. Philips, and bearing date November 13, 1838, was a good and valid note ; — -the plaintiff averring, that Woodward had recovered a judgment in his favor, in an action commenced by the plaintiff upon the note, upon the ground of his insanity at the…

Trespass quare clausum, fregit. The premises were described in the declaration as an acre of land in the village in Castleton, with a town house standing thereon; and the plaintiffs alleged, that the defendant entered upon the land and placed obstructions upon and around it, and broke and entered the town house, and hindered and obstructed the plaintiffs in the use of it.

This was a petition for a new trial and for leave to file a bill of review in a case heard in this court at the February Term, 1842, on appeal from the court of chancery; in which case Cannon & Warren were complainants and this petitioner and one Norton were defendants.* The principal ground of the present application was the alleged discovery of new evidence, a portion of which was stated to have been discovered between the time of the hearing before the chancellor and of…

Trespass on the Case. The plaintiff alleged, in his declaration, that his loaded wagon was overturned by reason of the insufficiency of a… Held: that an action like the present did not affect the title to land, so as to render it local. Hunt v. Pownal, 9 Vt. 411. III. But the title even of the easement is not concerned in this suit, within the meaning of the statute, — -the question in regard to the right arising only incidentally, and not being the foundation of the action.

This was a bill of foreclosure, and the orator’s claim was founded upon a tripartite indenture of bargain and sale, between The Bennington Iron Company, of the first part,… Held: that, in proving the assent of a corporation, or their delegation of authority, the same kind of proof is admissible, as would be, in the case of natural persons. Story, J., in 6 Pet. Cond. R\ 445,446. Parker, J., in 1 Pick. 304, 308. 1 Watts 387. 3 Johns. 226. 2 Met. 167. 9 East 360. 14 Conn. 596.

Debt on an award. The plaintiff alleged, in his declaration, that, certain difficulties having arisen between him and the town, in reference to a claim preferred by him against the town for building… Held: that an agent, expressly authorized to compromise a claim, might refer it to arbitration. This decision is entirely consistent with the definition of the word compromise.

Plea, that Townshend was not the place of the last legal settlement of the pauper, and trial by jury, April Term, 1846, — Williams, Ch. J.,… Held: that although, during the period, he visited his family In Vermont two or three weeks, and in one instance five or six months at a time, he gained, a settlement on the ground of intention ; ■ — and this case is cited with approbation in Burlington v. Calais, 1 Vt. 3S5, where the court ruled, that, as the pauper intended living at…

Ejectment for lot No. 12 of the second range of lots in Grafton. Plea, the general issue, and trial by jury, May Term, 1845,— Williams, Ch. J., presiding.

The orators, who brought this bill as well in behalf of themselves as of such other creditors as might join with them, alleged, that… Held: that the partnership creditors have no lien upon the partnership effects, and farther, that they have no equity, in their own right, in preference to th’e separate creditors, but that the joint creditors come in through the equity of the other partners; for the other partners generally have an equity to have the partnership funds pay…

The orator alleged, in his bill, that, on the tenth day of October, 1842, one William Bellows was indebted to him, and that he sued out a writ of attachment against, him, and placed the same in the hands of the defendant Porter, then constable of Athens, and caused to be attached thereon certain property which belonged to Bellows; that this suit was regularly entered and was still pending in court; that Bellows and one Philip Peck had before that time been co-partners in…

Assumpsit upon a promissory note. The original writ was signed by I. B. Person, as justice of the peace, and a recognizance for costs was taken by him in common form, and the writ, for want of a proper officer, seasonably to be had, was directed'to Silas Bruce, Jr., an indifferent person, to serve and return; and the return showed that it was served by Bruce by attaching real and personal property of the defendants.

Assumpsit upon a promissory note, in common form, with a count for money had and received. Pleas, the general issue and the statute of limitations. Held: that, in case of an acknowledgment of the debt within six years before suit brought, the plaintiff recovered, not on the ground of having a new right of action, but because the statute bar is removed. And in Barlow v. Bellamy, 7 Vt. 54, Collamer, J., says, that this point is too far settled to admit of discussion.

Assumpsit upon three promissory notes, signed by the defendants, by the name of their firm of Riley A. Deming & Co., and made payable to Wellington, Foster & Co., or' order, — of which firm the plaintiff was a member, — and by them endorsed to the plaintiff. Onion was discharged, at a former term, upon his plea in bankruptcy. Plea, by Deming, the general issue, and trial by jury, March Term, 1845, — Hebard, J., presiding.

<p>A defendant, who has been discharged upon his plea of bankruptcy, is a competent witness for the plaintiff, in the sainetease, against bis co-defendant, unless interested ; and it makes no difference, that the plaintiff consented to his discharge.</p> <p>Where the action, in such case, was for money had and received, and the defendant, who was called as a witness by the plaintiff, after having been discharged upon his plea in bankruptcy, testified, that he had been in partnership with his co-defendant, and that, at the request of his co-defendant, he borrowed of the plaintiff, for the use of the firm, the money which the plaintiff claimed to recover in this action, and that he informed the plaintiff, at the time, that he was obtaining the money for the firm, it was held, that this disclosed no interest in the witness,-which should exclude his testimony from the consideration of the jury.</p>

Indebitatus Assumpsit for wood-sold and delivered, and for wood bargained and sold. Plea, the general issue, and trial by jury, May Term, 1844, — Hebard, J., presiding.

.Covenant broken. Trial by jury, March T., 1845,. — LIebard, J., presiding. On trial the plaintiff offered the deposition of Norman W. Wallace, which had been taken with notice to the defendant, the deponent living, at the time of caption, more than thirty miles from the place of trial.

Trespass for taking a harness. The defendant pleaded in justi- ‘ fication, and averred, among other things, that he was duly elected collector of taxes for the town of Bethel in March, 1840, — that he-gave the bond, required by statute, for the faithful performance of his duties, — that an act of the legislature’ was passed in October,. 1840, granting a tax of three cents on the dollar on the grand list of those liable to be taxed,— that the town of Bethel, at a…

<p>Ejectment for land in Woodstock, described as follows; — “Be- ‘ ginning in the north line of the road from the brick meeting house i to the jail in Woodstock, at the south-west corner of the house lot ‘ where Grover Dodge formerly lived, but where Asa Tinkham now ' lives; thence running north seventeen degrees west six rods; thepce ‘ south fifty-nine degrees east two rods and seventeen, links to the ‘south-west corner of the place on which avlarge barn formerly ‘ stood; thence north twenty degrees west, by the west side of said ‘ barn, to Amos Warren’s garden; thence north eighty-eight degrees ‘ west, by said Warren’s garden, to the center of the Oil Mill brook, ‘ thence up said brook, and on the easterly line' of land Sylvester ‘ Edson formerly conveyed to Grover Dodge, to a point in the north ‘ line of said road six. feet westerly from the south-west corner of ‘ the plastered house now in a state of repair by Messrs. Russell & ‘Clark; thence easterly, on the said line of said road, to the place ‘ of beginning.” Plea, the general issue, and trial by jury, November T. 1844, — Hebard, J., presiding.</p> <p>On trial, the plaintiff showed title in himself to the premises in question by virtue of a regular levy of an execution in his favor against one Sylvester Edson, the former owner of the premises, by the same description contained in his declaration, and proved the defendant to be in possession. The defendant then offered in evidence the record of the levy of an execution upon the same premises in favor of one Asaph Fletcher against Sylvester Edson, and claimed title under the same. That levy was prior to the one proved by the plaintiff, and the premises were described as follows“ Beginning in ‘ the north line of the road leading from the brick meeting house to ‘ the court house, at the north-west corner of the house lot now oc- ‘ eupied by Grover Dodge, being the house lot of which one undivi- ‘ ded half was set off to Simeon Willard on an execution against Syl- ‘ vester Edson; thence north seventeen degrees west six rods ; thence ‘ south fifty nine degrees east two rods and seventeen links to the ‘ south-west corner of a large barn; thence north twenty degrees ‘ west, along the west side of said barn, to Amos Warren’s garden ; ‘thence north eighty eight degrees west, on said Warren’s garden, ‘ to the centre of the Oil Mill brook; thence down the centre of said ‘ brook to the land said Edson sold Grover Dodge; thence' southerly, ‘ on said Dodge’s east line, to the road ; thence eastwardly, on said ‘ road, to the place of beginning; ” and it was conceded, that there was no other land in Woodstock, which bore the description contained in this levy. The plaintiff objected to the levy, so offered in evidence, for the alleged reason that it did not describe any land by metes and bounds; but the objection was overruled.</p> <p>Verdict for defendant. Exceptions by plaintiff,</p> <p>The regularity of the plaintiff’s levy is not disputed j but the plaintiff insists, that the levy under which the defendant claims is void for want of sufficiently definite boundaries. The statute is express, that the land must be described' by metes and bounds, — meaning such as really exist and can be ascertained with certainty, and not rest upon uncertain conjecture. Clark v. Clark, 7 Vt. 190. Bott v. Burnell, 11 Mass. 163. Lessee of McCoy v. Galloway, Ohio Cond. R. 576: Kerr et al. v. Marsh, lb. 80. The cases, in which levies, which appear defective, have' been established, are where, by aid of the actual, fixed and visible boundaries, the defect can' be supplied with perfect certainty. Galusha v. Sinclair, 3 Vt. 390: Johnson v. Pannel’s Heirs, U. S. Cond. R. 84, McGregor v. Brown, 5 Pick. 174, 175. Kinley v. Williams et al., 3 U. S. Cond. R. 331-333. But in this case the north-west corner of a certain house lot is as much an actual, fixed and visible monument as the south-west corner would be, or as a large rock would be ; and down the centre of the Oil Mill brook is as much an actual, fixed and visible boundary, as a stone wall would be.</p> <p>1. The land is sufficiently described by metes and bounds, in the levy of Fletcher’s execution. Rev. St. c. 42, § 20. Maeck v. Sinclair, 10 Vt. 103. Boylston v. Carver, 11 Mass. 517. Gilman v. Thompson, 11 Vt. 644.</p> <p>2. A mistake in the description would not necessarily render the levy void. If there is sufficient contained in it to identify and set forth the subject truly, the erroneous part is to be disregarded, or to be construed into conformity with what is true, and thus effect be given to what was intended. In this case the starting point is called the north-west corner of the house lot; it should have been the south-west, as is obvious from the fact that the point is in the north line of the road. By taking any of the after mentioned points and running back by the bounds, courses and distances, the mistake is at once cleared up. Reject the word “north” before the word “west,” and the description is perfect. Galusha v. Sinclair, 3 Vt. 394. Gilman v. Thompson, 11 Vt. 643. Vosc v. Hardy, 2 Greenl. 322. Wing v. Burgess, 1 Shep. 111. Hall v. Fuller, 7 Vt. 100. Gates v. Lewis, lb. 511. Perman v. Weed, 6 Mass. 131. Massin v. Watts, 6 Cranch 148. Shipp v. Miller’s Heirs, 2 Wheat. 316, [4 U. S. Cond. R. 132.]</p>

Debt upon a jail bond. Plea, non est factum, with notice of special matter of defence, and trial by jury, March Term, 1845,— Hebard, J., presiding. Held: that the organization and limits of a school district may be proved by reputation. Barnes v. Barnes, 6 Vt. 388. Sherwin v. Bugbee, 16 Yt. 439.

<p>Trover for a pair of oxen. Plea, the general issue, and trial by jury, May Term, 1844. — Hebjsrd, J., presiding.</p> <p>On trial the plaintiff, to prove’ title in’ himself to- the oxen, offer-* ed in evidence’ an execution in favor of Solomon Downer against Jay Wilson arid Iliriam Wilson, which it was conceded was placed in the hands of the plaintiff, as deputy sheriff, for' collection,- and also the return of the plaintiff theré’on, as deputy sheriff, from which it appeared, that the property in question was turned out to the plaintiff by Hiram Wilson, to be levied upon, and that the property was duly advertised for sale, and that at the sale the plaintiff was himself the highest bidder for the property and became the purchaser, and that the debtóf who turried orit the property was present at the sale. It also appeared, by the creditor’s receipt iipoh the execution, that the full amount due upon the execution had been paid to hitts by the plaintiff. It appeared from the return, that the sale was made August 13, 1838; and the conversion of the property by.the defendant was alleged to have been on the first day of September, 1839. The defendant objected to the return as evidence, upon the ground that it had no tendency to prove title in the plaintiff to the oxen; and it Was excluded by the court.</p> <p>Other testimony was introduced ;■ and the case was submitted to the jury under a charge, to which no exceptions were taken.</p> <p>Verdict for defendant. Exceptions by plaintiff</p> <p>The question raised by the bill of exceptions is, whether the re- • turn on the execution was admissible, as tending to show title in the plaintiff to the oxen. His title was acquired by virtue of the sale evidenced by the return. The return was the proper evidence of such sale. 6 Vt. 64. 2 Vt. 181. A sale by an officer to himself is riot void. It gives a good title, until impeached. The mere fact of his being both seller and buyer does not constitute such impeachment. He is treated in the cases as standing in the position of trustee for both debtor and creditor. The general principle, governing sales made by trustees, in which they purchase the property sold, is not that the sale is void, but that the purchase enures to the benefit of the cestui que trust, if he choose so to claim. ITapgood v. Jennison, 2 Vt. 294, 302, 305. Davoue v. Fanning, 2 Johns. Ch. R. 252. A person not party to nor interested in- the sale can.not question the title acquired by it. Mead et ux. v.Byington et al., 10 Vt. 115,122. Jachson ex d.-McCarty v. Van Dalfsen, 5 Johns. 43. Jachson ex d. Golden v. Walsh, 14 Johns. 406, 415, Sheldon v. Sheldon, 13 Johns. 220.</p> <p>If it should be held to be incumbent upon the plaintiff to show the assent of the creditor and debtor to the sale, the return should be admitted, to show the subject matter of such assent, and as properly preceding the proof thereof. But we claim, that such assent will be presumed, and that, if advantage would be taken of the want of it, such want should he shown by the defendant.</p> <p>The deputy sheriff could not sell to himself. Mills v. Goodsell, 5 Conn. 475. There must be two parties to every contract; Chit, on Cont. 9, 12; 2 Bl. Com. 442 ; 2 Kent 450; 1 Sw. Dig. 172, 173; 1 Pow. on Cont. 6, 7. A sale is a contract for the transfer of property from one to another. 2 Kent 468; 2 Bl. Copa, 446; Chit, opt Copt. 373; and mutual consent to it is requisite; 2 Kent 477; 1 Sw. Dig. 376. A sheriff holds chattels in trust; he has a special property therein, and a right to the possession ; and his interest survives to his administrator ; Johnson v. Edson, 2 Aik. 299; Sewell v. Harrington, 11 Vt. 141 ; Hall v. Walhridge, 2 Aik. 215. A per? son standing in a fiduciary relation cannot purchase the property, even of the person who has the beneficial interest in it fMead et ux. v. Byington et al., 10 Vt. 116 ; Hapgood v. Jennison et al., 2 Vt, 294; Adm’r of North v. Barnum, 10 Vt. 220; 1 Story’s Eq. 312, §317; lb. 316, § 321; 1 Madd. Ch. Ill; Story on Bail. 213, § 319; Oliver et ux. v. Court et al., 8 Price 127, [3 Excheq. R, 313, 331.] The reasons why a sheriff should not be permitted to become an absolute purchaser at his own sale are as strong as they can possibly be in any case. It is his duty to sell the property at auction for the bpst price that can be obtained. The mode of conducting the sale is mostly, and of necessity must be, in his discretion. He may so conduct as to injure both creditor and debtor, without any possibility of redress. He may make a return and thus prove his title, or neglect to make it, and prove title by parol; Gates v. Gaines 10 Vt. 346. No defect in his return, when made, or irregularity or impropriety in his proceedings, will affect his title ; Bates v. Carter, 5 Vt. 602; Adm’r of Janes v. Martin, 7 Vt. 92; Hah v. Miller, 15 Vt. 211. Any one thinking himself aggrieved can sue the sheriff; lb. And in case of a deputy, the bail can, as is usual, procure a discharge from the sheriff, and the question as to the misconduct of the officer can be tried by his own oath.</p> <p>The case shows, that the defendant was neither debtor, nor creditor, in the execution. His claim, then, must have been as a subsequent purchaser, or attaching creditor; and having received the possession from the debtor, he stands in as favorable position as the debtor himself, having the possession.</p> <p>If what was done amounted to a purchase from the debtor, or from both creditor and debtor, or if the plaintiff acquired a claim to the property by having paid the debt and thereby removed the lien of the creditor upon the property, or by having made himself liable for the debt, his title arose from no official act, and could not be proved by a return made by him.</p>

<p>A contract entered into upon Sunday is not a violation or ip any way in contravention of the statute of this state, if entered into ip another state.</p> <p>Such contract is not so far contra bonos mores at common law, as not to form the proper subject matter of an action in the courts of this state.</p> <p>The statute laws of another state, when relied upon asa defence to a contract upon the ground of its illegality, must be proved, upon the trial, like any other facts in the case, and cannot be supplied in the supreme court, by producing there the statute book of that state.</p> <p>All contracts of a secular character, and which are not properly works of necessity, or charity, if finally consummated upon Sunday, are void under the statute of this state ; so that, while matters remain in this condition, no action can be maintained, either upon the contract, or fqr any thing done under it, or growing out of it.</p> <p>But contracts made upon Sunday should he held an exception, in some sense, from the general class of contracts which are void for illegality. They are not tainted with any general illegality, but are illegal only as to the time in which they are entered into. It is.not sufficient to avoid them, that they have grown out of a transaction upon Sunday; they must be finally closed upon that day. And although closed upon that day, yet if affirmed upon a subsequent day, they then become valid.</p> <p>And in all oases of contracts entered into upon Sunday, if either party have done any thing in execution of the contract, it is competent for him, upon another day, to demand of the other party a return of the thing delivered, or, where that is impracticable, compensation; and if the other party refuse, the original contract becomes thereby affirmed, and the same rights and liabilities are induced, as if the contract had been made upon the latter day.</p> <p>This is an indispensable exception to the general rule in regard to illegal contracts, in order to secure parties from fraud and overreaching, which would, otherwise, be practised upon Sunday by those who know their contracts are void, and that they are not liable nWáiír for even frauds practiced upon that day.</p>

Trover for a quantity of jewelry and other property. Held: that the plaintiff could not sustain trespass against the attaching officer for the property; and Williams, Ch. J., says, — “It may be true, that he (plaintiff) had a right to put an end to the contract and resume the possession; but until he exercised this right, he could have no claim to the possession, or to any action for an…

Trespass for taking thirty loads of manure. Plea, the general issue, and trial by jury, November Term, 1844, — Hebard, J., presiding.

<p>Till! Case of Adams v. Dunklee. was replevin for a quantity of rye and oats in the straw and corn in the stalk. Plea, not guilty, and trial by the jury, March Term, 1845, — IIebard, J., presiding.</p> <p>On trial the plaintiff gave in evidence an indenture, executed by the defendant and Timothy Olcott, by which the defendant leased to Olcott, “ for and during his natural life and the life of Hannah Olcott, his wife,” a certain farm in Chester, reserving the right to occupy and improve the same, for the purpose of enabling him to perform certain covenants upon his part, contained in the indenture, for the support of Olcott and his wife; and the habendum was in these words; — “ To have and to hold the above described premises, with the appurtenances, to them, the said Timothy, Olcott and Hannah Olcott, for and during their and each of their natural life, to their use and benefit during said term.”</p> <p>The plaintiff also proved the following facts. At the February Term of the supreme court in Windsor county, in 1844, Olcott recovered judgment against Dunklee in an action of ejectment, for a breach of the covenants for support contained in the indenture. On the thirtieth day of March, 1844, Olcott deceased, leaving a will, in which one Edson was appointed executor. Afterwards, Edson having declined the trust, Adams, the plaintiff in the replevin, was appointed administrator with the will annexed. At the time of recovering the judgment in the action of ejectment both Olcott and Dunklee resided upon the farm, and Dunklee and the widow of Olcott continued to reside there at the time these suits were commenced ; and no writ of possession had ever been taken out upon the judgment; but the costs had been paid by Dunklee. The property replevied was raised upon the farm by one Daniel Davis, in the summer of 1844, under an agreement with Dunklee, by which the produce was to be divided between them. Edson informed Davis, after the decease of Olcott, and before he declined to act as executor, that, if he occupied the farm, it must be as tenant to Edson.</p> <p>It also appeared, that the property in question had been attached by one Sargeant, a, constable, as the property of Dunklee, by leaving a copy at the town clerk’s office; and the second case above named, — Sargeant v. Adams Shenein, — was trover for the same property, brought by the constable, the alleged conversion being the taking of the property by virtue of the writ of replevin, which was served by Sherwin. This suit, also, was tried by jury upon the general issue, March Term, 1845, — Hebard, J., presiding, — and the same facts appeared, as to the title of Adams to the property, as were shown in the action of replevin.</p> <p>The court directed the jury to return a verdict for the defendant in the action of replevin, and for the plaintiff in the action of trover. Exceptions were taken to the decision in both cases; and the two cases were heard together in the supreme court.</p> <p>The legal title to the farm, on which the grain was raised, was in the administrator of Olcott, together with the right of immediate possession. For the title, which Olcott recovered in the action of ejectment, did not end at his death, but remained as security for all damages sustained by reason of the neglect of Dunklee to fulfil the covenants in the indenture.</p> <p>The construction given to the indenture and the judgment in ejectment by the court below, — which was, that Olcott's title ended at his death and thereby Dunklee was in as of his former right,— is directly in conflict with well settled general principles; such as that a person, not named in the premises of a deed, cannot take by the habendum. Doe d. Timmis v. Steele et at, 4 Ad. & El. [45 E. C. L.] 663, explaining Spyve v. Topham, 3 East 115. 2 Bac. Ab. 494, 498. Chamberlain v. Crane, 1 N. H. 64. 12 E. C. L. 359. The whole estate is given to Olcott in the premises, not only for his own life, but for the life of his wife; his wife did not sign the deed; and the attempted covenants to her are absolutely void. 1 Chit. PI. 3, 4, and note (g.) How v. How, 1 N. H. 49.</p> <p>If we are correct in our first position, it follows, that Dunklee must be regarded as a trespasser in remaining on the farm. Gilb. Ev. 242, 2 Bl. Com. 146, note (m.) 1 Price 50. Green v. Diddle, 5 U. S. Cond. R. 384. 10 Vt. 504. Birch v. Wright, 1 T. R. 373. 1 Chit. Pr. 92, 161, 258, 752. 4 Vt. 327. 2 Kent 361, 362. Taunton v. Costar, 7 T. R. 431. Bridges v. Smyth, 15 E. C. L. 481. Upton v. Wiiherwick, 11 E. C. L. 8. 1 Cov. & H. Dig. 466. 1 Hilliard 9, 189. 3 Cruise 431. The produce of the farm never vested in Dunklee; but the legal title was to remain in Olcott during the continuance of the life estate.</p> <p>1. The administrator, if he took any interest in the land, had no right to seize the crops' which Dunklee had raised upon it; they were raised by him in good faith; Olcott had permitted him to go on, under their contract, after the recovery in ejectment, and he was, at least, such a tenant, as to be entitled to the crops.</p> <p>2. The administrator took no estate or interest in the real estate. In the ejectment Olcott recovered according to his right; Rev. St. c. 35, § 6 ; his right was a contingent life estate; Olcott v. DunMee, 16 Vt. 478; and after his decease, his wife, Hannah Olcott, took by remainder in her own right. I Shep. Touch. 75, 76. Spyve v. Topham, 3 East 115. Cro. Jac. 372, 563, 564. Co. Lit. 7 a, and note 33. Yin. Ab. F, 52, 53. 4 Com. Dig. 168. Dunk-lee remained in possession, furnishing the support for Mrs. Olcott, and is in under the contract with her, and is the owner of the prop-' erty attached.</p>

<p>In this case the original writ, which was returnable to the county court, November Term, 1842, was signed by a justice of the peace, and was directed in these words; — “To any sheriff or constable in the state, or to E. I£. •Gladding, constable of Granville ; ” and the service was made by Gladding out of the town of which he was constable. At the term at which the case was entered in court the defendants pleaded in abatement, that the writ was not served by any officer or other person by law authorized to serve it. Upon this plea issue was joined; and at the same time the plaintiff moved for leave to amend the process, by inserting, in the direction of the writ, that no proper officer could be seasonably had to serve it, and that the person, to whom it was directed, was an indifferent person. To the allowance of this amendment the defendants objected. The plaintiff then offered the affidavit of the justice of the peace, who signed the writ, stating, that he knew, at the time of signing the writ, that Gladding had no power, as constable of Granville, to serve it, and that he intended to authorize him, as a disinterested person, to serve it, for the reason that no proper officer could be seasonably had, and that he supposed, at the time, that the writ was properly directed for that purpose. The defendants objected to this testimony, as irrelevant; but the court received the affidavit, and permitted the plaintiff to amend. Exceptions by defendants, Upon the genera} issue, subsequently joined in the case, judgment was rendered for the plaintiff.</p> <p>1. There was a total want of authority in the person named in the process to serve it; he had no such authority as constable, and the words “constable of Granville” are mere surplusage. The process is the same, then, as if directed “ to E. K. Gladding.” A direction to one,, by his name only, who has not official authority, confers none. The appointing one to serve legal process, who is not, by virtue of his office, authorized so to do, is a judicial apt, Bebee v. Steel, 2 Vt. 314. Kellogg, ex parte, 6 Vt. 509. Kelly v. Paris, 10 Vt. 261. Ross v. Fuller, 12 Vt. 265.</p> <p>2. The amendment was improperly allowed. There was nothing to amend by ; the process was utterly void. Hearsey v. Bradbury, 9 Mass. 95. Campbell v. Stiles, lb. 207. Wood v. Ross, 11 lb. 271. Brier v. Woodbury, 1 Pick. 362, 366. Eno v. Frisbie, 5 Day 122.</p> <p>3. The testimony of the justice, who signed the writ, was inadmissible. The act of the person assuming to make service was inoperative and void, when done, for the want of authority in him to do it. No such act can be made valid by relation, or intendment.</p> <p>1. The amendment was properly allowed. The rule in this state is, that “ any of the courts” “ may at any time permit either of the parties to amend any defect' in the process, or pleadings.” 1 Tol. St. 74. Rev. St. 161. To this rule there is no exception. Mattocks v. Stearns et ux., 9 Vt. 326. Sherman v. Prop, of Conn. River Bridge, 11 Mass. 338. In Chadwick v. Divol, 12 Vt. 499, the writ was served by a sheriff, to whom it was not directed, and the .court allowed it to be amended. And the same was done in Hersey v. Bradbury, 9 Mass. 95.</p> <p>2. The court did not err in admitting the testimony. If any doubt existed, after inspection of the record, as to the facts, it was proper that it should be removed by extrinsic evidence. Richardson v. Mellish, 3 Bing. 334. [11 E. C. L. 127.] 3 Bl. Com. 410. Wynne v. Thomas, Willes 563, 570.</p> <p>3. The process was sufficient, without amendment. It is not necessary that either of the facts should be stated in the direction of a writ, which must be found by the magistrate signing it, before authorizing a person to serve it. Bell v. Chipman, 2 Tyl. 423. Miller v. Hayes et al, Brayt. 21. Rev. St. 180, § 7; 484, Form 3 ; 179, § 6. 1 Sw. Dig. 610. A justice must find the same facts, before authorizing a person to serve process returnable before himself; but they need not appear upon the process; Rev. St. 171, § 22. A subpoena ad testificandum formerly contained a direction to an in.different person, naming him, but stated no want of an officer; Slade’s S.t.. 323; it is now in common form; Rev. St. 490; yet the provisions of the law are not altered. Slade’s St. 132, § 26; Rev. St. 176, § 65. In the direction of each of the two warrants, in proceedings for the removal of a pauper, a fact is stated; Slade’s St. 324, 325; Rev. St. 500, 501; yet none is required to be found; Rev. St. 102, § 4. In the direction of a warrant for commitment of a person refusing to make a deposition no fact was stated, though a person was named; Slade’s St. 331; yet it was required that a fact should be found; Slade’s St. 82, §82; it is now in common form; Rev. St. 495. The direction of a citation to a party to attend the taking of a deposition stated only that the person to serve it was indifferent ; Slade’s St. 82; Rev. St. 497; yet the justice was required to find every fact necessary in this case. Rev. St. 204, § 3; lb. 171, § 22 ; lb. 180, § 7.</p>

<p>. A settlement by seven years residence, under the statute, can only be acquired by persons above the age of legal majority. No allowance can be made for any length of residence during infancy, though it may have been after emancipation.</p> <p>A removal from town, with the person’s family and effects, and a residence for several months in another town, will interrupt the gaining a settlement by seven years residence, notwithstanding the person may, at the time of removal, contemplate a return at some future, but indefinite, time.</p> <p>Whether a person was legally chargeable to a town, so as to entitle them to institute proceedings for his removal as a pauper, must depend upon the degree of his destitution and poverty at the time the proceedings were taken.</p> <p>In this case the paupers removed were a widow, who was sickly and subject to fits, and her children, who were of tender age; and it appeared, that, previous to their removal, relief had been afforded to them by the town instituting the proceedings ; and, it appearing that the widow had no property, nor interest in any property, except such as was subject to attachment, or was placed beyond her immediate control by reason of other liens, and except certain household furniture, which it did not appear was any more than sufficient to enable her to live comfortably with her children, it was held, that she must he considered as chargeable, and, as such, subject to removal.</p>

<p>Trustee Process. It appeared that Uriah Hayes, one of the trustees, in November, 1S4Ó, executed a bond to the defendant, Topliff, in the penal sum of one thousand dollars, to indemnify him for having attached, as constable, certain property in a suit in favor of Hayes against Asa Chamberlain and Carmi D. Chamberlain, which bond was signed by Abel Blanchard, the other trustee, as surety ; and that judgment had been recovered by one Carlos Chamberlain against Topliff in an action for taking the same property, and that a suit was now pending in the name of Topliff against the trustees, upon the bond. The claimant, Aikens, filed bis declaration, alleging an assignment of the bond to himself, by Topliff, and notice thereof to the signers of the bond, prior to the commencement of this suit. No question was -made as to the fact of assignment. Blanchard admitted, that notice of the assignment was given to him by Aikens prior to the service of this trustee process upon him ; and he alleged, in his disclosure, that, at Aikens’ request, he gave notice to Hayes of the assignment, prior to the service of this writ. There was no other evidence of any notice to Hayes, prior to the trustee process being served upon him.</p> <p>The county court, March Term, 1845, — Hebard, J., presiding,— decided, that notice to Blanchard was sufficient', without notice to Hayes, and thereupon rendered judgment, that the claimant hold the funds in the hands of Hayes and Blanchard, and that they be discharged, with costs. Exceptions by plaintiff.</p> <p>The only question before this court is in relation to the sufficiency of the notice to Hayes. That notice of the assignment was necessary is well settled. Britton v. Langley Sf Tr., 9 Vt. 309. Hinsdill v. Safford et al., 11 Vt. 309. Kimball v. Gay fy Tr., 16 Vt. 131. Chase et al. V. Haughton et ad., lb. 595. Giddings v. Coleman Tr., 12 N. H. 163. Hayes was the principal in the bond; and the same notice to him is necessary, as though he were the only obligor. 1 Sw. Dig. 432. Smilie v. Runnels et al., 1 Vt. 148. Blanchard was in no sense his agent to receive notice. Had Hayes paid to Topliff, or his order, the amount of the bond, after notice to Blanchard and before notice to himself, it would have been a good payment.</p> <p>The trustees were properly discharged.</p> <p>1. Their contract was one of indemnity only, depending upon a contingency ; Townsend v. Atwater, 5 Day 298; Rev. St. 193, § 29.</p> <p>2. It had been transferred, and legal notice of the transfer given to them, before they were summoned as trustees. Their indebtedness, if any, being by a joint obligation, for all the purposes of the present inquiry, at least, they are to be regarded as but one party; and notice to either is in law notice to both. Notice to one of two or more partners, of a prior unrecorded deed, is notice to all the partners ; Barney v. Currier et al., 1 D. Ch. 315; Watson v. Wells, 5 Conn. 468. An acknowledgment by one joint debtor will take a case out of the statute of limitations as to all; Joslyn v. Smith, 13 Vt. 353; 1 Sw. Dig. 305; Whitcomb v. Whiting, Dough 652; Bound et al. v. Lathrop, 4 Conn. 336; Coit v. Tracy, 8 Conn. 277. Where several are bound to do an act upon notice, notice to one of them is sufficient; 1 Sw. Dig. 698 ; 3 Com. Dig. 121, Tit. Condition L 9. Where a condition is, to deliver possession to the lessor, or his assigns, who assigns to two, a request by one is sufficient ; 3 Com. Dig. 121, Tit. Condition L 11; 1 Rol. 428, 1. 10. If a promise be by three, a special request to one is sufficient; 5 Com. Dig. 366, pi. C 71. Where a previous demand is necessary to the maintenance of an action, on a joint contract, against two or more persons, a demand on one of them is sufficient; Griswold v. Plumb et al., 13 Mass. 298. 1 Sw. Dig. 186. The fact, that Blanchard signed as surety for Hayes does not alter the law in that respect. As to the creditor, or any one claiming by assignment from him, both are principals.</p>

<p>[In Chancery.]</p> <p>A court .of chancery will not ordinarily dismiss a suti on account of any mere informality in the position in which the parties are placed, as orators, or defendants, if all the parties interested are before the court, and a proper case is proved for the interference of the court.</p> <p>An allowance of a claim by the probate court is not conclusive upon the court of chancery, upon a bill seeking relief against the claim upon grounds of mere equitable cognizance.</p> <p>If one sign, or indorse, a note, as surety for several joint principals, and one of the principals dies, the surety, having paid the debt, may claim a dividend from the estate upon the entire debt, notwithstanding he may hold collateral security for his liability. Where the security is merely collateral, a court of equity will not compel its application, merely for the purpose of reducing a dividend, unless the debtor stands in the relation of a co-surety.</p>

The bill set forth, that on the 26th day of May, 1824, Mark Richards, the father of the oratrix, Fanny Porter, made a donation of $1000,00 to the said Fanny and her three children, and delivered the same to the defendant Samuel W. Porter, then and still the husband of said Fanny, with a writing directing him to hold the same in trust for the said Fanny and her heirs; that the said sum remained in the hands of Samuel W. Pop» ter until January, 1825, when, by the advice and…

The substance of the bill and answer and the facts found are sufficiently detailed in the opinion of the court. The court of chancery, July Adjourned Term, 1845, — Hebard, Ch., — dismissed the bill. Appeal by orator. cited 2 N. H. 148, 389; Cadogan v. Kennett, Oowp. 432 ; 5 S. & R. 278 ; 3 Vt. 565 ; 4 Vt. 405 ; 12 Vt. 199, 699 ; Barrett v. Sargeant et al., 18 Vt. 365; 14 Vt. 518 ; 1 Chit. Pract, 438, 498, 561; 15 Vt. 185. cited Story's Eq.

In this case a report had been made by auditors, and exceptions had been taken by one party to decisions made by the county court in accepting the report, and now, upon the argument of the ease, a question was raised, whether the whole case was open, so that the other party might take advantage of questions decided against him by the county court, and upon which no exceptions were reserved.

Before the reading of the' testimony in the case was commenced, in this court, a motion was called up, which had been filed in the court of chancery and overruled there, to suppress the testimony in the case, on the ground of want of authority in the examiner to take testimony in this county, he being a master in chancery in an adjoining county.

Account, It was alleged in the declaration, that the plaintiff and defendant had been partners in business, and that the defendant had received more than his just share of the money arising from the profits of the business; for which an account was demanded. The defendant pleaded three pleas in bar, the substance of each of which was, that he had fully accounted with the plaintiff of and concerning the money mentioned in the declaration; and upon these pleas issue was joined.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows.

Book Account. Judgment to account was rendered, and an auditor was appointed. The item in the plaintiff's account, in reference to which controversy was had in the supreme court, was for a quantity of hay. It appeared, from the auditor’s report, that in 1838 the plaintiff and the defendant Pamelia Banks, then sole and unmarried, were tenants in common of certain premises, upon which a quantity of hay was cut.

<p>A party of record may call the opposing party as a witness, with his consent, or a co-party, they being divested of all interest in the suit. This is the utmost extent, to which the authorities upon this subject have gone.</p> <p>An administrator de bonis non, in whose name a suit is progressing, is not so divested of all interest as to be a competent witness in the case, notwithstanding it may appear, that the suit was commenced prior to his appointment, and that the estate which he represents is clearly solvent.</p> <p>A married woman can only be admitted as a witness in a case, when her husband would be a competent witness in the same case.</p>

<p>Trespass for false imprisonment. Plea, the general issue, with notice that the defendant, as constable of Braintree, arrested the plaintiff and committed him to jail, by virtue of several warrants for the collection of taxes legally assessed against him ; which was the trespass complained of. Trial by jury, June Term, 1845, — Hebard, J., presiding.</p> <p>On trial the defendant offered in evidence the several warrants described in his special notice, with his returns and the amount of the plaintiff’s taxes endorsed thereon; to the admission of which the plaintiff objected, upon the ground that the returns were insuffi cient. The returns were similar; and the defendant set forth in them, that, “ after legally notifying ” the plaintiff of the time and place when and where he would be to receive his tax, there being; no goods, &c., shown to him, nor found within his precinct, he took the body of the plaintiff and committed him to jail, and delivered to the jailor a true and attested copy of the warrant and return;, and there was appended to each of the returns a memorandum of the amount of the tax and of the collector’s fees. No other certificate, or memorandum, was left with the jailor. The defendant, in-aid of his returns, then offered parol evidence, tending, to prove, that, prior to the arrest of the plaintiff, he gave the plaintiff six days notice of the amount of his several taxes, and of the time and place when and where he would call to receive them, and that then the defendant had well grounded apprehensions that the plaintiff was about to leave the state without paying the taxes, and that in consequence thereof he arrested the plaintiff and committed him to jail. To the admission of all this evidence the plaintiff also objected; but the objections were overruled by the court.</p> <p>Other questions were raised upon the bill of exceptions, and were argued by the counsel; but no decision was made in respect to them by the supreme court.</p> <p>Verdict for defendant. Exceptions by plaintiff.</p> <p>I. The certificates, or returns, of the defendant upon the warrants were insufiicient. 1. The time he gave the notice and the time and place he would receive the taxes should have been stated, so as to show the sufiiciency of the notice, and that six days had elapsed before the arrest and commitment. 2. They should have stated, that he was there at the time and place to receive the taxes, and that the plaintiff neglected to attend and pay.. 3. If he committed the plaintiff, because he had just reason to apprehend that the plaintiff was about removing, &c., lie should have so certified. 4. He should have certified for-what the tax was raised, and the amount of the tax, and against whom. Rev. St. 373, §§ 4, .9, 10.</p> <p>II. Parol evidence ought not to have been received in aid of the returns. 1. Because all the doings of the defendant, relative to the plaintiff, should have been shown by the returns, or certificates, on the copies of the warrants, he being required by law so to certify. Rev. St. 373, § 10. 2. Because the defendant, in his notice, states that he left with the jailor, on the copies of the warrants, certificates o.f his doings relative to the plaintiff; and having so done, he should, by every principle of law and pleading, be confined to the certificates. McDaniels v. Buclclin, 13 Vt. 279. 3. Having attempted to certify, on the copies of the warrants, one cause for the arrest and imprisonment, the defendant should not have been permitted to show, by parol, another cause for the same.</p> <p>1. The court did not err, in permitting the copies of the warrants, with the amount of the taxes and defendant’s return, which he left with the jailor, to go to the jury. It was most certainly necessary for the officer, for his justification, to have left with the jailor an attested copy of his warrant, with a certificate of his doings thereon ; Rev. St. 373; therefore, this being his duty, whatever return he might have made in the premises should be proper and legitimate evidence for his justification. Hathaway v. Goodrich, 5 Vt. 65.</p> <p>2. Whatever the returns do not prove the defendant may prove by parol. Hathaway v. Goodrich, 5 Vt. 65. If an officer neglect to make a return of a sale on an execution, he may prove the same by parol. Gates v. Gaines, 10 Vt. 346.</p>

Ejectment for a dwelling house, with a shed attached, and the land whereon they stand, in Newbury. Plea, the general issue, and trial by jury, June Term, 1846, — Kellogg, J., presiding.

<p>Certiorari from the decision of Calvin Blodgett, a justice of the peace, in appointing commissioners, upon the petition of the defendant, to appraise the damages sustained by him by reason of the laying out of a highway through his land by the selectmen of Tunbridge, and in accepting and rendering judgment upon the report of the commissioners, awarding damages to the petitioner.</p> <p>It appeared from the return of the justice’s proceedings, that on the first day of June, 1844, the selectmen of Tunbridge surveyed and laid out a public highway through land owned by the defendant, and ordered the same to be opened for work by the first day of December, 1844. This survey was recorded in the town clerk’s office on the twenty-third of September, 1S44. On the fourteenth of June, 1844, the defendant and one Moody, through whose land the highway was also laid, agreed with the selectmen to refer to certain arbitrators the question of damages; and the arbitrators awarded, upon the same day, that the defendant was not entitled to any damages, and that Moody was entitled to ten dollars. This award was also recorded in the town clerk’s office, September 23, 1844. On the twenty-eighth of September, 1844, the defendant petitioned the justice, Blodgett, to appoint commissioners, pursuant to the statute, to appraise the damages sustained by him by reason of the laying ■out of the highway; and on the fourth of November, 1844, the matter, came on for a hearing before the justice. The selectmen objected to the appointment of commissioners, on the ground that the matter had been adjudicated by the reference, abqve mentioned ; but the petitioner insisted, that the reference was not binding upon him, for the reason that the selectmen had not caused the survey of the highway and the petition upon which it was founded to be recorded in the town clerk’s office at the time the reference was had, and that they had not acquiesced in the award by paying the amount awarded to Moody nor delivered to him the award. The selectmen also objected to the appointment of commissioners upon the .ground that the petition was premature. The justice overruled the objections and appointed commissioners, and subsequently accepted the report of the commissioners, awarding to the petitioner forty dollars damages, and ordered that amount, and the cost, to be paid to the petitioner by the first of May, 1845.</p> <p>There was error in the proceedings before the justice. 1. The defendant’s claim for damages had been settled by a reference and award; Rev. St, 126, §§ 15, 16. 2. The application was made before the road was open to be worked ; Rev. St. 126, § 16. The justice had no jurisdiction; Emerson et ux. v. Reading, 14 Vt. 279. Paine v. Ely, N. Cli. 20, 21. The town had no right to enter upon the land for any purpose, until the time fixed for opening the road to be worked had expired, and the damages paid, if agreed upon, or the sum awarded paid; Rev. St. 128, § 24. Patcldn v. Morrison, 3 Vt. 590. Stiles v. Middlesex, 8 Vt. 436.</p> <p>The record and proceedings are presumed to be legal, unless the contrary appears. 1. We insist, that the application for the appointment of commissioners may be made at any time, after the laying of the road, until sixty days after the road is opened to be worked. 2. The other objection is founded upon . an arbitration as to the damages, before the road was legally laid out by causing the survey to be put upon record. The statute gives no power to refer the question of damages, until the road is laid out; and any proceeding of this kind, before the road is laid out, is not binding on the town, and consequently not binding on the petitioner.</p>

<p>This was a petition to the county court to set aside a judgment, rendered by a justice of the peace by default, and to be allowed a trial in the case, founded upon the Revised Statutes, chapter thirty three, section eight, — the petitioner alleging, that he had no notice of the suit until after the rendition of the judgment, — and was heard by the county court, June Term, 1845, I-Iebard, J., presiding.</p> <p>It appeared from the record of the justice of the peace in the original suit, that notice to the petitioner of the pendency of that suit was proved, prior to the rendition of the judgment against him by default; but the petitioner offered to prove, by parol evidence, that he did not in fact have notice of that suit, until after the judgment was rendered. To the admission of this evidence the petitionee objected-; but the objection was overruled, and the evidence was received; and the court, from the evidence, found the fact to be, that the petitioner had no notice of the original suit, prior to the judgment, and decided, that the prayer of the petitioner be granted, and that he have leave to enter his copies, and that the cause stand for trial. Exceptions by petitionee.</p> <p>1. The record of the justice in the original suit shows that the petitioner had notice of that suit; and to avoid and contradict the record, in this particular, the county court admitted parol evidence. This, it is believed, is in contravention of the long established rule, that a record cannot be contradicted by parol. Spalding v. Cham~ berlin, 12 Vt. 538. Barnard v. Flanders. Ib. 657. Pike v. Hill, 15 Vt. 183. Sawyer v. Joiner, 16 Vt. 497. 1 Sw. Dig. 750. 8 Conn. 375. Olcott v. Hutchins et al., 4 Vt. 17. 1 Stark. Ev. 195, n. Ib. 202-215. 3 Ib. 1278. Woods, Adm’r, v. Pettis et al, 4 Vt. 556. Peake’s Ev. 21, 22, n. Dickson v. Fisher, 4 Burr. 2267. Fox v. Hoyt, 12 Conn. 491. St. Albans et al. v. Bush, 4 Vt. 58. Phil. Ev. 218, 237, n. (a.) Co. Lit. 260. 1 East 355.</p> <p>2. The rule is well settled, that the judgment of a court of competent jurisdiction, upon a question or point in issue, is conclusive between the parties. If such were not the rule, there would be no end to litigation. 2 Aik. 381. 2 Greenl. Ev. 16. 4 Pet. 393, 408. 17 Vt. 302. 12 Conn. 491. 6 Conn. 558. 1 Stark. Ev. 183-186, 208-211. 1 Greenl. Ev. 590, 595, 596, n. 2.</p> <p>1. Although the principle is true, that a record imports absolute verity, yet it is not applicable to cases of this description. Indeed, the rule has always been subject to some exceptions. Cowp. 727. 1II. Bl. 75. 1 Anstr. 8. 3 Yes. & B. 42. 2 Marsh. "392. 7 Taunt. 97. 3 Bl. Com. 24, note 3. There is much reason, that that part of a record, which shows “ notice proved, ” should be made an exception. The record is always made from ex parte evidence. The party charged with notice is not present to contradict it, and has no opportunity to be heard.</p> <p>2. It is contended, that the rule is not applicable to a case arising under Sec. 8 of chap. 33 of the Revised Statutes. Indeed, it appears to have been the express object of the legislature, in this enactment, to relieve a party from the operation of this rigid rule. The Statute pre-supposes a regular judgment, as shown by the record, and one that cannot be reached by the ordinary process of audita querela. If the record is to be held beyond the reach of contradiction, then the statute is entirely nugatory.</p> <p>3. This statute is to be regarded as extending the time for entering an appeal, in certain cases, in the discretion of the county court, from two hours to two years; and the granting the prayer of the petition has the effect only to bring up the original suit, as if appealed. The record of a case, in contemplation of law, is made as the suit progresses, and is not considered complete, until the suit is ended. While in progress, the record is under the control of the court, subject to be amended, and that to be shown by parol testimony. The process of petition merely continues the progress of the original suit. By it the county court take appellate jurisdiction, and make up a record of an appealed case, instead of its remaining the record of a case complete and ended in a subordinate jurisdiction.</p> <p>4. It is insisted, that the ordering the original suit to be entered on the docket and stand for trial was a matter of discretion, not to be revised in this court.</p>

<p>Appeal from the court of chancery. The orators alleged in their bill, that Martha Porter, on the eighth of September, 1823,. was indebted to the orators in the sum of five hundred dollars, specified in a promissory note of that date, payable in four years, with interest annually; that on the twelfth of March, 1825, she executed to the orators a mortgage deed of certain land in Newbury, to secure the payment of said note; that she died September 27, 1825, leaving a will; that William T. Haddock was appointed executor of her will in New-Hampshire, and administrator, with the will annexed, in Vermont; that Haddock, by virtue of a power contained in the will, sold and conveyed, by deed, the mortgaged premises, in separate and distinct parcels, to the several defendants named in the bill, and those under whom they claim; and that the note still remained due and unpaid. And the orator prayed for a foreclosure of the defendants’ equity of redemption in the premises. The subpoena was issued August 4, 1841, and was served upon the defendants September 1, 1841.</p> <p>The defendants answered, admitting the execution of the note and mortgage by Martha Porter to the orators, but insisting upon the statute of limitations, and insisting that the note should have been presented to the commissioners upon Martha Porter’s estate ; and they also averred, that they were informed and believed, that Haddock had paid the note to the orators; — and the defendant Doe alleged, that he, as agent of his father, to whom Haddock conveyed that portion of the mortgaged premises now held by this defendant, did, immediately after the conveyance by Haddock of the mortgaged premises, pay to Haddock, in the banking house of the orators, at Haverhill, the sum of four hundred dollars, and that Haddock then and there, in the presence of this defendant, paid the same sum to the cashier of the orators, towards the mortgage note ; and the defendant Stevens alleged, that soon after the payment of the purchase money of the mortgaged premises, by the purchasers, to Haddock, •he, feeling anxious about the mortgage and that the same should be discharged by Haddock, went to the banking house of the orators and inquired of the cashier respecting the same, and that the cashier then informed him, that Haddock had paid the mortgage, and that he thereupon so informed the purchasers.</p> <p>The defendants also filed a cross bill, setting forth, in substance, the matters alleged in their answers to the original bill, and making the orators in that bill and Daniel Blaisdell, who was administrator ■do bonis non upon the estate of Martha Porter, defendants ; and the orators in the cross bill prayed, that the defendants might be required to disclose, whether the note, or any part thereof, had been paid; and, if not, that it might be paid from the assets in the hands of Blaisdell, as administrator. The defendants in the cross bill answered, — the Grafton Bank denying that the note, or any part of it, had been paid; and Blaisdell alleging that all the assets, which had come to his hands as administrator, had been distributed pursuant to a decree of the probate court in New Hampshire.</p> <p>The answers to the original bill and cross bill were traversed, and testimony was taken upon both sides, — the substance of which sufficiently appears from the opinion of the court.</p> <p>The court of chancery, December Term, 1844, — Hebard, Ch. —decreed, that the cross bill be dismissed, with costs, that the original bill be dismissed, as to Hiram Johnson, with costs, and that the other defendants pay the sum due in equity upon the mortgage note, reported by the master to be 81420,95, by a day fixed, or be foreclosed of all equity of redemption in the premises. - From this decree the defendants appealed.</p> <p>1. This suit was instituted within fourteen years after the note became due; and, as there is a subscribing witness to the note, the case is not within the statute of limitations.</p> <p>2. There is no evidence tending to show that the note has been paid, excepting the deposition of Thomas J. Doe, who testifies to the declaration of Haddock and of the orators’ cashier, Bunce. The orators are not affected by these declarations; and the deposition should be suppressed. The depositions of Bunce and Page disprove these admissions, and show that they were not true, if made. The answer of the orators to the cross bill is also evidence against the defendants.</p> <p>1. We insist that the orators áre barred from a recovery, by reason of their not having presented their note before the commissioners upon the estate of Martha Porter. SI. St. 353, § 91. In case of a note and mortgage, the note is the principal matter. The mortgage is only an incident; and if the debt is gone, by payment, or by discharge in any other way, by act of the parties, or by operation of law, the mortgage must share the same fate. Martin v. Mawlin, 2 Burr. 343. SI. St. 343. 2 Fonbl. 490, n. Hawkins v. King, 2 Marsh. 109. Barnes v. Lee, 1 Bibb 526. McDaniels v. Reed, 17 Yt. 681. If this claim had been presented to the commissioners and disallowed, and no appeal taken, it will not be pretended, that the disallowance Would not have been a good bar to a bill of foreclosure. A fortiori the orators should be barred, not having presented their claim; as the statute, in express terms, creates a perpetual bar for that reason. Warren v. Saxby, 12 Vt. 146. Hunt v. Fay, 7 Vt. 170. McCollum v. Hinckley et al., Ex’rs, 9 Vt. 143.</p> <p>2. The orators are barred by the statute of limitations of fifteen years, — which applies equally to a bill of foreclosure and to an action of ejectment; Hunt et al. v. Wickliffe, 2 Pet. 201; Lewis v. Marshall, 5 Pet. 470; Fonbl. Eq. 243, 244; Roosevelt v. Mark, 6 Johns, Ch. R. 266; 4 Kent 187; Stamford v. Tuttle, 4 Vt. 82;. Collard’s Adm’r v. Tuttle, 4 Vt. 492. The statute began to run from the time the orators’ cause of action for the recovery of the land first accured. The cause of action, in this case, accrued in one year from the date of the note, or in one year from the day of the discount thereof, (April 30,1825,) the note being on interest annually. Between either of these dates and the date of the subpcena more than fifteen years intervened. SI. St. 289, § 6. Rev. St. 305, § 1. Battley v„ Faulkner, 5 E. C. L. 288. Smith v. Smith, 15 Vt. 620.</p> <p>3. The defendants insist, that the note was paid in 1826, and that the fact is made out from a fair balance of proof and the circumstances.</p> <p>4. The court ought to presume payment from lapse of time and the other circumstances, 1 Stark. Ev, 34. Conner v. Chase et al., 15 Vt. 782. 1 Greenl. Ev. 21, 47.</p>

This was an action founded upon the statute, — Revised Statutes, chap. 21, sec. 26, — to recover damages for an injury occasioned by the insufficiency and want of repair of a jhigjuyay. Plea, the general issue, and trial by jury, April Term, 1845, — Redfield, J., presiding.

Petition for a writ of mandamus. The petitioner set forth, that certain of his land had been taken by the Vermont Central Rail Road Company, for the purpose of building their road; that the commissioners, appointed in pursuance of the provisions of the charter of the Company, had appraised his damages at sixty five dollars; that, feeling aggrieved by this decision, he had appealed to the county court and had filed in that court a motion in writing, to be allowed to have his…

The orators alleged, in their bill, that a copartnership formerly existed, at Middlesex, between the orator Blake and the defendant Hart, Blake furnishing the capital stock and Hart being the active partner; that while they were thus doing business Blake executed a contract in writing, at ¡the request of Hart, in these words; — “ Boston, November 25,1830. f This certifies, that I have agreed with Moses L. Hart to let him ‘have all the profits of the business of Blake & Hart…

The orator alleged in his bill, in substance, that from 1828 until 1842 he was a partner in business at Montpelier with Luther Cross; that in 1842 he purchased the interest of Cross in the property of the firm, and executed to him a bond, conditioned that he should pay all debts due from the firm; that during the continuance of the partnership the firm borrowed various sums of money of the defendant, for which they gave him their note, and for which they agreed to pay him…

Book Account. Judgment to account was rendered, and1 an auditor was appointed, who reported the facts substantially as' fob lows. The plaintiff’s account was for about three months’ labor, which was performed for the defendant under a contract that he would labor for him seven months, at eleven dollars a month.

Assumpsit upon two promissory notes, dated June 5, 1845. The defendant pleaded the general issue, and also pleaded, in offset, that, on the 5th day of June, 1845, in consideration that the defendant would purchase of the plaintiff a certain mare, the plaintiff warranted the said mare to be kind and safe in the harness and suitable for the use of the defendant's family; and he averred a breach of the warranty. Trial by jury, June Term, 1846, — Kellogg, J., presiding.

Trespass for taking certain personal property, described in tbe plaintiff’s declaration. Plea, the general issue, with notice of special matter of defence, and trial by jury, December Term, 1844,— Redfield, J., presiding. On trial the following facts appeared.

Trespass quare clasum fregit. Plea, the general issue, and trial by the court, June Term, 1846, — Kellogg, J., presiding. Upon trial the facts appeared as follows. The trespass was alleged to have been committed upon a lot of land in Walden. In April, 1845, the plaintiff received a lease of a portion of the lot from the selectmen of the town, extending from the south line of the lot fifty rods on the west line and sixty rods on the east line.

The defendants pleaded, first, that, at or before the time of making the order of removal, the pauper had not come to reside, and did not reside, in Sutton; and secondly, that the last legal settlement of the pauper, at the time the order was made, was not in Cabot.

<p>Appeal from the court of chancery. The bill was brought for the foreclosure of a mortgage, executed December 9, 1820; and the subpoena was dated November 21, 1844. The defendant answered, alleging that he had made various payments upon the mortgage notes each year from 1827 to 1831- inclusive, and also claims .the benefit of the presumption arising from lapse of time. The ¡answer was traversed, and testimony was taken; the substance of ...which is sufficiently detailed in the opinion of the court. It was .referred to a master to ascertain the sum due in equity, — which he reported was $98,58; and no exceptions were taken to the report.</p> <p>The court of chancery ordered, that the defendant pay the sum reported by the master by a time specified, or be foreclosed of all equity of redemption in the mortgage premises. From this decree the defendant appealed.</p>

<p>In Chancery.</p> <p>In this court appeals from the court of chancery are invariably heard entire.</p> <p>Objections to mere matters of form, which are regulated by the established rules of the court of chancery, will be considered as waived, if not taken in that court; — and if taken there, and overruled, the decision of that court will be held final.</p>

Indictment for forgery. In the first count it was' alleged, that the respondent forged a certain promissory note, purporting to bear ‘ date the twenty-eighth day of April, in the year of our Lord one * thousand eight hdndred arid forty^six, and to have been signed by ‘ one David Harriman and one Samuel Gates, for the payment of ‘twenty-five dollars and sixty cents the first day of January then ‘ next after the date of said note, with the interest, to one Francis f^n-ed…

Trespass on the Case for the default of John P. Denison, constable of Guildhall, in not keeping and delivering up on demand certain property attached upon a writ in favor of the intestate against James Steele. Plea, the general issue, and trial by jury, May Term, 1846, — Kellogg, J., presiding.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts as follows. The plaintiff’s account contained a charge for cash, five dollars ;— j and this was the only item, in reference to which controversy was j had. This sum was sent by the plaintiff to the defendant for some { tea.

Assumpsit for money had and received. Plea, the general issue, and trial by the court, June Term, 1846, — Royce, J., presiding. On trial the facts appeared as follows.

Trustee Process. It appeared from the disclosure of the trusr tee, that he had in his possession certain military arms and accoutrements, belonging to the principal debtor, who‘was adjutant of the regiment, and that the .principal debtor had some time previously absconded from the state. The trustee also claimed, that the plaintiff had previously commenced a suit against him, as trustee of the principal debtor, and that a judgment had been rendered therein.

Trespass on the Case against the defendant, as slier iff, for the neglect of liis deputy, Samuel S. Kimball, in not collecting and… Held: in Turner v. Lowry, 2 Aik. 72, and in Hall et al. v. Brooks, 8 Vt. 485, that the plaintiff should recover the full amount of his execution ;— but in the first case the ground of the decision seems to have been, that the plaintiff had lost his lien upon the bail by the neglect of the officer; and in the latter case the court seem to…

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, June Term, 1846, — Royce, J, presiding.

This was originally an action of trover for four horses and five harnesses. After judgment for the plaintiff and review by the defendants, the plaintiff, by leave of the court, amended his declaration by filing several additional counts in case.

Tins was an action founded upon the statute, — Revised Statutes;, chap. 106, sec. 16-,* — against taking illegal fees, brought by- the' plaintiff as the party aggrieved, the defendant being a deputy'sheriff,, and was commenced before a justice of the peace, and came to the county court by appeal.

This was an action to recover the penalty given by the statute for receiving a fraudulent conveyance. The pi aintiff alleged in his declaration, that the defendant, on the fourth day of August, 1842, received a deed of certain land in Newport from Jesse H. Goodwin and Matthew E. Goodwin, with intent to defraud the plaintiff of debts due to him from Jesse H. Goodwin. Plea, the general issue, and trial by jury, June Term, 1844, — Rqyce, J., presiding.

Trespass for taking a horse. The defendant pleaded the general issue, and also, in bar, that he was collector of taxes in the town of Morristown, and, as such, held a rate bill and warrant requiring him to collect a tax from the plaintiff of ninety-nine cents, that he repeatedly called on the plaintiff for the tax, and notified him when and where he would receive it, that, particularly, on the fourth day of March, 1844, he demanded payment of the defendant, at Brownington, —…

Scire Facias upon a recognizance, taken upon an appeal by the defendant Chamberlin from the judgment of a justice of the peace, upon a complaint for wilfully and without force holding over certain demised premises, founded upon the sixth section of the statute of February 27, 1797, and conditioned, that the appellant should pay to the complainant all intervening damages occasioned by his being delayed, with additional costs.

<p>Where a proceeding is commenced by an executor, in pursuance of the provisions of section seven of chapter forty eight of the Revised Statutes, for the purpose of compelling the defendant to make a discovery, under oath, as to property of the estate in his hands, the case must be finished in the probate court, before an appeal can be taken from that court to the county court. An appeal from an order, made by the probate court in such case, that the defendant answer certain interrogatories propounded to him, is premature, and will be dismissed, on motion.</p> <p>In this case, the trial having proceeded in the county court upon the propriety of the interrogatories, and the question as to the regularity of the appeal not having been raised in that court, but the appeal having been dismissed in the supreme court, no costs in the county court were allowed to either party; and as to the costs in the supreme court, the parties were left to their legal rights.</p>

■ Appeal from the court of chancery. The orator alleged in his bill, that on the sixteenth day of March, 1836, the defendants James Palmer, Lebbeus H. Chase, Francis B. Hall, Benjamin Hall and William F. Dickinson, doing business under the firm of Palmer, Chase & Co., prayed out a writ of attachment in their favor against one Jonathan Houghton, demanding in damages the sum of six hum dred dollars, and delivered the same to the defendant Thomas Jame-son, sheriff, for service;…

‘ Assumpsit upon a promissory note, dated March 8, 1844, for $25,55, payable to the plaintiff, or bearer, in good, saleable neat cattle, over one year old and not over eight years old, the fifth day of October, or in good clean grain in January following, to be delivered at the defendant’s dwelling house. The defendant pleaded, that on the 31st day of January, 1845, he tendered good clean grain, to the amount of the note, at his dwelling house.

Debt upon a jail bond. Plea, non est factum, with notice of special matter of defence, and trial by jury, December Term, 1845,— Royce, J., presiding. On trial a question arose as to the true limits of the liberties of the jail in Orange county, — the facts being the same* as reported in the case of Downer et al. v. Dana et al., ante, page 338, where the same question arose. The county court gave the jury, the same instructions, in substance, as in that case.

Scire Facias upon a recognizance for the prosecution of an appeal from the judgment of a justice of the peace, in which the defendant Shurtliff was principal, and the defendant Bell was surety.

. Audita Querela, brought to set aside an execution against the plaintiff. Plea, the general issue, and trial by jury, June Term, 1845, — Royce, J., presiding.

<p>This was a petition to the supreme court to vacate the levy of an' execution, in favor of the plaintiff against the defendants, upon land of the defendant Taylor, and was founded upon the Revised Statutes, chapter 42, section 43.</p> <p>It appeared, that the execution in question was placed by the plaintiff in the hands of one Noyes, constable of Hydepark, with- directions to levy it upon certain land, subject to a mortgage, in which Taylor had a life estate, and that the officer attempted to levy upon the life estate, but, by mistake, the appraisers appraised the fee simple, and ascertained the value of the equity of redemption by deducting the amount of the mortgage from that' sum, and the officer levied upon the entire equity of redemption, thus ascertained, instead of levying upon the life estate. The return was in the form, given in the Revised Statutes as a levy upon land.</p> <p>Upon the facts found it would seem, that the levy was, in the language of the statute, “ irregular, informal, and not made according to the strict rules of law,” and that the title derived therefrom is doubtful, — aso that, under that statute, the petitioner is entitled to have the levy corrected.</p> <p>1. The statute does not include a levy defective in substance as to the subject matter, but includes all matters of form. It cannot be extended to a levy on the wrong land, or a levy on land instead of the equity of redemption, or a levy on the land, instead of a life estate. Bell v. Roberts, 13 Vt. 582.</p> <p>2. In order to bring the case within the statute, there must appear, upon the face of the return itself, some irregularity, or informality, or some defect which shows that the levy was not made according to the strict rules of law. The return is literally after the form given in the statute.</p>

<p>Where the plaintiff recovered judgment in the court below, and the defendant filed exceptions, but execution was not stayed, and the defendant neglected to prosecute the case in this court, it was held, that this court would affirm the judgment, and also, that the plaintiff was entitled to costs in this court, unless he had reasonable notice, in writing, before the commencement of the term, that the case would be abandoned.</p>

<p>Temporary alimony not allowed to the wife, to enable her to prepare her defence to a libel ibr divorce, preferred by the husband.</p>

<p>This case came into this court upon exceptions, taken by the trustee to the decision of the county court, by which he was held chargeable ;• and the judgment of the county court was affirmed. After the cause was decided, a question was made to the court, whether the trustee was entitled to retain, out of the funds in his hands, his costs in this court.</p>

iN this case the county court rendered judgment for the plaintiff for full damages, and the defendant took exceptions. Held: that the plaintiff, upon the facts found, was entitled, if he so elected, to have judgment for nominal damages; — and judgment was accordingly so rendered. A question was then made in regard to costs.

In this case judgment was rendered in the county court for the plaintiff, and the defendant took exceptions, which were allowed, but execution was not stayed. The defendant gave notice to the plaintiff, four days before the session of this court, that he should not prosecute his exceptions, and directed the clerk not to enter the case upon the docket, and now desired to treat it as a mis-entry,— to which the plaintiff objected.

This was an appeal from the decision of a justice of the peace, and was brought into the county court by the defendants. The county court rendered judgment in favor of the defendants, and the case was brought into this court by the plaintiff, upon exceptions.

<p>A petition for a highway through several towns, which omits to state that the petitioners are freeholders of the towns and vicinity through which they desire a road, may be amended, by consent of the petitioners, if the facts will warrant the averment.</p>

Trespass for taking a wagon, a mare and a fanning mill. Plea, the general issue, and trial by jury, March Term, 1845, — Bennett, J., presiding.

Ejectment for land in Enosburgh. Plea, the general issue, and trial by the court, April Term, 1845, — Royce, J., presiding. On trial the plaintiff gave in evidence a mortgage deed of the demanded premises, dated February 23, 1843, and executed by the defendant, in which the grantees were described as “ Morse & Houghton, of Bakersfield,” and proved, that the plaintiffs had lately been in partnership at Bakersfield, under the firm of Morse &.

Book Account. The defendants weTe described in the writ as “ surviving partners of Henry Hodges, late of said Clarendon, deceased', in the lumbering and milling business at Castleton in the county of Rutland'.

Assumpsit, founded upon section six of chapter sixteen of the Revised Statutes.* The plaintiffs alleged, in their declaration, that one Elizabeth Draper, on the 24th day of November, 1841, whose… Held: that, for this reason, the plaintiffs were not entitled to recover for this account.

Trespass guare clausum fregit. The plaintiff alleged, in his declaration, that the defendant, on the fourteenth day of June, 1841, and on divers days and times between that day and the time of commencing this suit, (which was brought to the April Term, 1844, of Rutland county court,) entered the close of the plaintiff, and broke open a messuage thereon, and broke to pieces and destroyed the .doors, locks, staples, hinges and- windows belonging thereto, and pulled down the…

Ejectsíént for land In Danby. The defendants pleaded in abatement, that one James McDaniels, of Rutland, was the owner and landlord of the demanded premises, and that the defendants were his tenants, and that so McDaniels ought to have been joined as defendant in the suit; — and upon this plea issue was joined. Trial by jury, September Term, 1845, — Williams, Ch. J., presiding.

Trustee Process. The trustee disclosed, that he was indebted to the principal defendant upon certain promisory notes, and also that he had a quantity of manganese, belonging to the principal defendant; and he claimed to be allowed for certain offsets.