Volume 2 — Tyler's Vermont Reports

THE plaintiffs, as merchants trading in company, declare in trespass on the case, that at the city of NewYork, on the 27th of November, 1795, one James Robinson was indebted to them in the sum of 144l. 2s. 1 1d. New York currency, balance due from said Robinson, on account of goods, &c. sold to him. That Robinson was then, and ever since hath been, a bankrupt, which was unknown to the plaintiffs, and well known by the defendant.

The defendant in the preceding cause moved for a new trial; stating, First. That some of the Jurors of the Jury who tried the cause, after the cause was submitted to them, witnessed or related to others of the panel certain matters and things in relation to the issue not witnessed or related on the trial of the cause in Court. Secondly. That since the trial of the cause he had discovered new, and as he is advised, material evidence.

THE plaintiff declared in a plea of trespass vi et armis. Whereupon the plaintiff declares and says, that the defendants, on the 13th of October, A. D. 1800, at Wallingford, Rutland County, with force and arms, broke and entered a certain close or lot of land in said Wallingford, on which Jonathan Streater lately lived, called the Streater Farm ; and having so entered as aforesaid, with like force and arms, picked and carried away about thirty bushels of good Indian corn,…

AT the stated term, issue to the Jury, and verdict for the defendant. Plaintiff filed his motion for a new trial, stating, First. That David Osgood, the principal and most material witness on the part of the defendant, was interested in the event of the cause, and therefore incompetent. Secondly. That the verdict was against law and evidence. The motion was heard and decided the present term.

<p>IN ERROR. This writ was brought to reverse a judgment rendered by Rutland County Court, November term, A. D. 1800.</p> <p>It appeared by inspection of the record, that Thomas Gould, the original plaintiff, now defendant, impeached the present plaintiff in error before a Justice of the Peace in an action on book account, demanding 18 dols. 18 cts. to balance book accounts. The Justice’s Court rendered judgment in favour of Dickenson, from which judgment Gould appealed to the County Court, entered his appeal, and after several imparlances, Dickenson suffered a default. The County Court rendered judgment in favour of Gould for 19 dols. 57 cts. damages and costs.</p> <p>The errors assigned inter alia not insisted upon, are,</p> <p>First. That the County Court had rendered judgment for the then plaintiff, 19 dols. 57 cts. when he alleges in his declaration, the balance of book accounts in his favour to have been only 18 dols. 18 cts.</p> <p>Secondly. That the County Court, upon the defendant’s being defaulted, did not appoint an auditor or auditors to examine and adjust the accounts between the parties.</p> <p>Oyer of the record craved and exhibited. In nullo est erratum pleaded, and joinder.</p> <p>Our first exception in error is, that the judgment rendered for the original plaintiff exceeds the sum demanded in the declaration 1 dol. 39 cts. This is a small sum, but it is included in the principle, that a plaintiff may recover less, but never can recover greater damages than he has demanded in his declaration. If the County Court have the power to augment the sum set forth by the plaintiff to be his due one dollar and thirty-nine cents, they possess power to increase it to any extent. In actions on the case, the defendant learns from the declaration the extent of the plaintiff’s claim. If he considers it exorbitant, or entirely without foundation, he will prepare to contest it in Court: but if he considers the plaintiff’s claim to be just, and the sum demanded by him as correct, he will suffer a default, resting in full confidence that judgment cannot be rendered for any greater sum, than that demanded in the declaration. The plaintiff always takes his judgment at his peril. If the cause is tried by the Jury, and they find a greater sum in damages than the plaintiff claims in his declaration, he may enter a remittitur for the excess. If he fails to do this, the defendant may move for and shall have a new trial, or he may bring his writ of error as in the present case, and reverse the judgment.</p> <p>In an action of book account, which must be considered here as a creature of the statute law, the Legislature have provided a further security, that the defendant shall have no greater sum rendered against him, even on default, than the plaintiff hath set forth to be his just due, by allowing him a day, and a board before whom he may appear and contest the plaintiff’s claim; and this brings us to the consideration of our</p> <p>Second exception in error, to wit, that the County Court erred in rendering judgment against us upon default, without appointing an auditor or auditors to examine and adjust the accounts between us and the plaintiffs.</p> <p>The act relating to actions of account, first section, provides, “ That when any defendant or defendants, in any action of account pending in any Court in this Slate, shall plead in defence any plea, (which, being true, he, she, or they ought not to account,) it shall be tried by a Jury, and if a verdict be found against him, her, or them, the Court shall render judgment that he, she, or they account; and in such case, and also when such judgment shall be rendered on confession or default, the Court may appoint one or more judicious and disinterested men auditor or auditors in the cause, who shall be sworn to hear, examine, and adjust the account or accounts, and such auditor or auditors are hereby authorized and empowered to appoint a time and place for hearing, examining, and adjusting the accounts aforesaid, and upon the defendant or defendant’s refusal (due notice being given to him, her, or them, of the time and place appointed) to attend upon him or them, and produce his, her, or their accounts, the auditor or auditors shall proceed to take the account ex parte; and shall award to the plaintiff or plaintiffs Such sum as on his, her, or their showing, shall appear to be justly due; which showing shall be made on the oath of the party, or other evidence, as the nature of the case may require. And upon the parties appearing to render their accounts, the auditor or auditors shall have power to administer an oath to them, according to the form prescribed by law; and the parties being sworn, the auditor or auditors shall have power to inquire by interrogatories, as well of the plaintiff or plaintiffs, as of the defendant or defendants, relative to their respective accounts, and also to cross-examine the parties with respect to each other’s accounts, as they shall judge proper; and if either party shall refuse to take such oath, or to answer directly to such interrogatories, such refusal relative to the particular matter to which such oath or answer is required, shall be taken against the party so refusing. And when the auditor or auditors shall have adjusted the account or accounts, and returned the same into Court, judgment shall thereupon be rendered, if no just cause be shown to the contrary, for such sum as shall be found in arrear from either party, with costs, together with such reasonable costs for the service of the auditor or auditors as the Court shall award; which shall, by the party in whose favour judgment shall be rendered, be paid to the auditor or auditors, and allowed to such party in his, her, or their bill of costs, which said judgment shall be final between the parties.”</p> <p>Section 2. “ That actions of account may be sustained on book accounts; and the same proceedings shall be had therein as is in this act before provided in the common action of account.”</p> <p>The statute is express. “ When such judgment shall be rendered on confession or default, the Court may, in legal import shall, appoint one or more auditor or auditors in the cause.” It appears by the record, judgment was rendered on default, and no such auditor or auditors appointed. We conceive, therefore, we have fully maintained the errors assigned, and that the Court will order a judgment of reversal to be entered.</p> <p>We do not contend against the general rule, that a correct judgment cannot be entered up for a greater sum than the plaintiff’s demand in his declaration, but the exceptions to the rule are frequent. One exception, which covers our case, is the adding to the sum demanded by the plaintiff the interest which has accrued from the time the debt became payable to the time it is liquidated. Even in an action of debt, where such precision is required, that the plaintiff must have a verdict for the precise sum demanded, neither more or less, and where the Chancery powers of the Court are called in aid of the defendant to render a final judgment for the sum equitably due, the Court will consider the accruing interest ; but this may be said to be aside from the common law. But even in an action of debt on judgment, where no Chancery powers are exercised, and the plaintiff is obliged to declare for his precise debt, and where a cent’s variation would defeat the action, the Courts continually add the interest accruing from the first to the second judgment. It is laid down, settled as a general rule in the books, “ that where a new action may be brought, and a new satisfaction obtained on that for duties or demands arisen since the commencement of the depending suit, these shall not be included in the judgment on t.he former action : but where the interest is an accessary to the principal, and the plaintiff cannot bring a new action for interest grown due between the commencement of the action and the judgment, it shall be included." And in Comyns’ Digest it is expressly declared, under the authority of Douglas, p. 676. “ that a Jury may give interest on book debts in the name of damages;" and the addition of 1 dol. 39 cts. as interest which accrued from the time the book account became payable to the time it was liquidated by the judgment, is all the excess made by the County Court, and in this we conceive they have not erred.</p> <p>The arguments advanced in support of the second error assigned, seem to have arisen from not rightly distinguishing between an action of book account, originally commenced before the County Court, and an action of the same nature, originally commenced before a Justice of the Peace, and entered by appeal in that Court.</p> <p>The statute read regulates the proceedings in book accounts only in the former case.</p> <p>The Legislature, after having given original jurisdiction to Justices of the Peace to hear and determine actions on book account of small comparative magnitude, which was done to save the accumulation of large costs in small suits, with the same economical spirit have saved the expense of auditors in book accounts litigated before a single magistrate, and given full power to the Justice to audit. Section 12, of the act defining the powers of Justices of the Peace within this State, enacts, “ That if the plaintiff, in any action pending before a Justice of the Peace, shall be indebted to the defendant by bond, bill, note, book, or other contract, the defendant may plead in offset to the plaintiff’s demands, any sum within the jurisdiction of a Justice as aforesaid, due to him from the plaintiff, and the plaintiff may likewise plead in offset to the defendant’s demand, so pleaded in offset, any other sum within the jurisdiction of a Justice as aforesaid, and the Justice shall render judgment for such sum as he shall find in arrear from either party.”</p> <p>Section 16. “ That when any Jury shall be impanelled to try any cause pending before any Justice of the Peace, it shall be lawful for such Jury, and they are hereby empowered to audit and adjust all accounts and demands committed to them by such Justice, and draw the just balance between the parties in such cause; and return such balance to the said Justice in their verdict: any former law, usage or custom in this State to the contrary notwithstanding.”</p> <p>Here appears full powers for the Justice’s Court to audit book accounts. The only question which can arise is, when the Justice of the Peace has audited the accounts, or rendered judgment for the defendant, and an appeal is entered at the County Court, in what mode shall the appealed cause be conducted? Shall it be put upon the footing of an action of book account, originally commenced before the County Court ? or shall the Court proceed to try it under the statute regulations, in the act “ defining the powers of Justices of the Peace within this State?” Shall auditors be appointed by the County Court, or shall they proceed to audit the book account ?</p> <p>If the County Court had proceeded to treat the appealed cause as if originally commenced before them, the design of the Legislature in the statute just read would have been defeated. Costs would have accumulated every way disproportioned to the sum in dispute. The County Court have in this case pursued the latter mode, and have considered that it was no great assumption of prerogative in them to audit an account of small amount, and which the Legislature had esteemed commensurate with the knowledge and abilities of a single magistrate. In doing this they have saved costs to the parties, pursued the spirit of the several statutes, and have not erred.</p> <p>It is said, in case of default it might operate a surprise upon the defendant, to learn that there were no auditors appointed before whom he might contest the plaintiff’s claim. As we consider, arid as the community consider, the true construction of the statutes, it would operate a greater surprise upon a person who had acknowledged a demand by default, and who had suffered himself to be sued, not because he intended to defend, but because he was unable to meet the demand, and who, while he was making every exertion to satisfy the expected writ of execution, had been consoling himself that as little cost as possible had been made, to discover that the plaintiff’s claim was referred to auditors before whom he had nothing to contest, and the expense of whose sitting he was obliged eventually to pay.</p> <p>We shall submit our first exception, with what has already been observed upon it, to the consideration of the Court.</p> <p>In reply to the observations of the defendant’s counsel upon the second error assigned, we would inquire, what benefit was intended to be given by the Legislature by an appeal from a Justice of the Peace to the County Court. Was it merely an appeal from one magistrate to three magistrates; from the Justice to the bench of the County Court ? or was it to secure to the appellant the privilege of having his cause reconsidered, and tried according to the more liberal practice of a higher Court.</p> <p>The statute of the 23d of February, 1797, prescribing the mode of trial in actions of book account, contemplates two distinct issues, and destines them to distinct tribunals.</p> <p>The first is, whether the defendant ought to account. If it be found that defendant ought to account, the County Court have no power to audit, but must appoint an auditor or auditors. The other issue, whose object is to discover the quantum due, can alone be decided by the auditors. The plaintiff in error, when in the County Court, had a right to the trial of these two issues, and before the several. tribunals. He abandoned his right to the first by his default; but he considered, and had sufficient reason to consider, that he was entitled to the second. There is no express law, depriving him of this privilege. It is expressly given to him by the statute. The words are, “ That when any defendant or defendants, in any action of account, pending in any Court in this State, shall plead, See. the Court shall render judgment to account, and when such judgment shall be rendered on confession or default, the Court may appoint an auditor or auditors,” &c. The only question is, was this an action of account pending in the County Court ? not, How did it come there ? Was it originally commenced, or was it entered by appeal from a Justice of the Peace. This is a distinction created by my brother Smith’s ingenuity, but not expressly found in the statutes, and not to be deduced from any fair construction of them.</p> <p>A party may have a reasonable predilection for the mode of investigation by auditors. The crowd and bustle of a Court seem ill adapted to the necessary and minute investigation of the various items of a long book account, and auditors, like a struck Jury, are often better judges of the subject matter of an account than the most learned Judges, or a Jury fortuitously elected, can be presumed to be. With the single cause before them they have more leisure to attend to it; while, by frequent adjournments, accommodated to the necessities of the case, or the parties, they are enabled to investigate critically. They are in fact judges elected immediately by the parties; for although the Court appoint, yet when the parties agree upon the men, the Court never fail to confirm their nomination. The appeal may be therefore taken, and the default suffered, with the very design of carrying the account in dispute before auditors. It was probably done in this case, but has been defeated by the erroneous judgment of the County Court.</p> <p>The reason why the Legislature empowered the Justice’s Court to audit book accounts in the statute cited by Mr. Smith, is because they considered that accounts simple in their nature, and not involving any abstruse points of law in the litigation, would ordinarily come before them; but they gave a right of appeal, that in cases more intricate, the accounts might be examined by auditors of superior acquirements in scientific or mercantile concerns.</p> <p>We therefore contend, that the County Court erred in rendering judgment on the record in question, without referring the book account of the plaintiff to an auditor or auditors.</p>

IN ERROR. The facts apparent on the record are, that Joel Hamilton, the defendant in error, on the 22d of January, 1799, brought his action against Merrit Priest, Davis Olney, Heman Stannard, Erastus Goodrich, Wait Goodrich, and Joseph Davidson, returnable to Rutland County Court, March term, A. D. 1799; in which he declared against them in trespass vi et armis, for breaking and entering his close in the darkness of the night, and cutting down, felling, peeling, girdling and…

DEBT on recognisance entered by a private informer, in pursuance of an order of a Justice of the Peace holding a Court of Inquiry. Demurrer to the declaration. This cause was argued and determined upon the same pleadings in favour of the reviewees, in this County, January term, 1801.

<p>Vide ante, vol. 1. p. 83.</p> <p>The nominal plaintiff in ejectment cannot maintain an action against a sheriff for an escape of a defendant committed in his name for the damages and costs recovered in the action of ejectment. A sheriff, as keeper of the prison to which is committed a debtor from another County, is not liable for the negligent escape of such debtor.</p>

<p>Correction of an inaccuracy in the report of the cause of Chalkley James v. Simeon Smith, suffered in the first volume, p. 136.</p> <p>NOTE.</p> <p>Note on the case of Jasper L. Drake v. Nathaniel Collins, reported vol. 1. p. 79.</p> <p>THE opinion of the Court, that a promissory note deposited with arbitrators, subject to their endorsement to the amount of their award, is void, delivered in this County in the case of Jasper L. Drake against Nathaniel Collins, January term, 1801, reported volume 1. p. 79. was much doubted at the time, and has since been followed by no similar decisions. It will be observed, by recurrence to that report, that the decision was not supported by the unanimous opinion of the bench. The Chief Judge and Hall, Assistant Judge, divided, whilst Smith, Assistant Judge, inclined to be in opinion with Judge Hall, that such notes are not in themselves void, but merely voidable; but eventually he esteemed it to be his duty to concur in opinion with the Chief Judge.</p> <p>When we consider the nature of our trials by Jury, we shall not be surprised, that, as in case of trial at Nisi Prius in elder governments, judicial opinions should sometimes be hastily and perhaps incorrectly given.</p> <p>At the request of several respectable members of the bar, who considered some intimation to this effect might be proper to guard junior practitioners from relying upon this questionable decision too strongly, this note is inserted by</p> <p>The Reporter.</p>

The complaint was made to Samuel Safford Judge of the County Court, and Josiah Wright, Justice of the Peace, and charged Brown, that on the 10th day of April, 1801, vi et armis and with strong hand, he entered into possession of the complainant’s land in Pownal, (butted and bounded,) which land the complainant averred he had lawfully and peaceably possessed for more than three years before the forcible entry of the defendant, who with like force and strong hand continued to…

<p>ACTION for slanderous words.</p> <p>For saying, with the usual allegations and innuendoes, “ Ebenezer Dwinells is a perjured rascal he has taken a false oath, and I can prove .it.”</p> <p>General issue pleaded, and notice under the statute, that the defendant would give the truth of the words in justification, to wit, that the plaintiff, in the trial of a certain cause before a Justice’s Court, appeared as a witness, and testified falsely.</p> <p>The plaintiff proved the words to have been spoken, and rested.</p> <p>The defendant’s counsel now offered to show the sessions and proceedings of the Justice’s Court by parol testimony.</p> <p>Objected, That the Justice’s Court is a Court of Record, and parol testimony of its session and proceedings is not the highest evidence the nature of the' case requires.</p> <p>Defendant’s counsel. We do not consider ourselves held to the same strictness of proof in giving the truth of the words spoken in defence, as is required upon an indictment for perjury.</p> <p>Curia. The defendant has not merely charged the plaintiff with false swearing, but he has charged him directly with perjury, and has explained his meaning in his notice under the general issue, to wit, in testifying falsely in a certain cause before a Justice’s Court. If he would show the truth of the words spoken in justification, he must show the plaintiff to have been guilty of perjury in the technical sense of the term. He must show all that is necessary to be shown to support an indictment for perjury, to wit, that there was a Court of competent jurisdiction, a cause within that jurisdiction, an issue joined and tried, an oath administered by proper authority, and that the plaintiff appeared at such Court, and knowingly and wilfully testified falsely to a point material to the cause in issue. If the Court before whom the cause was tried is a Court of Record, which this Justice’s Court is,* the record of its sessions and proceedings must be produced.</p> <p>The record was after some delay produced.</p> <p>Verdict for the plaintiff, 46 dollars.</p> <p>It appeared by the record of the certified copies of the case, that in the County Court, Dwinells, the plaintiff, had, by verdict of the Jury, recovered five dollars damages, and that no costs had been taxed.</p> <p>insisted, that no more than five dollars costs could be legally taxed in the County Court. He relied on the 97th section of the judiciary act, “ that in all actions of the case for slanderous words, if the damages found and assessed by the Jury do not surmount the sum of seven dollars, the Court shall allow no greater costs than damages,” and insisted, that this statute was binding upon every Court, distinctly and independently of every other jurisdiction; that there being a verdict found for the plaintiff under seven dollars in' the County Court, costs should have been there taxed under seven dollars; and when the case came by appeal to this Court, if the verdict had been for damages under seven dollars, then no greater costs than damages in this Court. But the Courts being thus made by the statute independent of each other in this particular, when damages have been found in the County Court for five dollars, and the same amount of costs taxed there; and on appeal, damages are assessed by the Jury in this Court at 46 dollars, the full costs accruing only in this Court can be legally taxed.</p>

<p>THE plaintiff declared in trespass for a violent assault and battery made upon him by the defendant in Pownal, on the 18th July, 1797, ad damnum, 3,000 dollars.</p> <p>General issue pleaded and joined.</p> <p>The defendant offered to show seisin of the land, and property in the crops standing and growing thereon, about which the dispute which caused the assault and battery arose in mitigation of damages.</p> <p>Objected by the plaintiff. This showing does not amount to son assault demesne; but if it did, it is matter of justification, which ought to have been pleaded in bar, and cannot be admitted under the general issue.</p> <p>Defendant’s counsel. We do not contend that such showing can be admitted in justification under the general issue, but merely in mitigation of damages. In the case of Bingham v. Garnault, sittings in London, 5th of April, 1788, coram Buller, Justice, minuted in Buller’s Nisi Prius, an action was brought against a captain of a ship for assault and battery and false imprisonment, who pleaded not guilty. “ The defendant cross-examined the plaintiff’s witnesses as to expressions used, by the which he would have justified the imprisonment, they tending to raise mutiny and disobedience.” The defendant should regularly have pleaded son assault demesne, and upon de injuria propria replied, and joinder, the evidence of the mutinous expressions would have been properly before the Court; but it seems he pleaded the general issue; and the objection was taken, that expressions tending to raise a mutiny and disobedience on board his ship would amount to a justification in the captain, and ought therefore to have been specially pleaded. The Court nevertheless admitted what was said by the plaintiff at the time of the imprisonment, to be heard in mitigation of damages.</p>

THIS was an action brought to recover treble damages, founded on the first section of the act more effectually to prevent trespasses in divers cases. Verdict for the plaintiff in the County Court.

<p>In an action in the name of the Judge of probate, upon an administration bond, where the bond is dated, and the writ tested anterior to the passing of the present act for the probate of wills, &c. the Judge of probate cannot be compelled to certify the name of the person applying to him to prosecute under the 103d section of that act.</p> <p>Vermont Stat. vol. 1. p. 129. c. viii. s. 26.</p> <p>Vermont Stat. vol. 2. p. 70. c. lxxii.</p> <p>Vermont stat. vol. 1. p. 129.</p> <p>Vermont stat. vol. 1. p. 162.</p> <p>Vermont Stat. vol.1. p. 71.</p> <p>Vide vol. 1.</p> <p>Vermont Stat. p. 54. Hasw. edit.</p> <p>Vermont stat. vol. 2 c. cxi p. 124.</p>

<p>Vermont stat. vol.2. p. 152.</p> <p>Ib. p. 53. In an action against an administrator upon an estate represented insolvent, declaration upon a promissory note made by the intestate, the Court will not admit parol testimony to show that the note had been exhibited to the commissioners as a claim against the insolvent estate.</p>

ACTION of account against the defendants as bailiffs and receivers.

ACTION upon a bail-bond for the liberties of the prison, taken on a commitment upon mesne process. The plaintiff demands in debt, 800 dollars, which the defendants justly owe, and unjustly detain. Declaring in substance, that on the 11th of December, 1797, he prayed out his writ of attachment against the defendant Evens, returnable to Orange County Court, June term, A. D. 1798, and directed to the sheriff of Bennington County, or either constable of Pownal, in said County.

<p>In all appeals from the Probate Court, this Court, as the Supreme Court of Probate, will proceed conformably to the practice in the Court, and not subject the appealed cause to the rules of pleading which, regulate the common law proceedings of the Court.</p> <p>Vermont Stat. vol. 1. p. 151.</p> <p>When an appeal is taken from a decree of the Judge of Probate, upon the allowance of a guardian’s account, the Judge should cause the register of his Court to certify a copy of such account, and send it up with the copies to the Supreme Court, where objections may be taken to its allowance in the nature of a bill of exceptions, or exceptions to a report of auditors.</p>

MOTION in arrest. Attach Amos Huntington and Jedediah Clark, to answer unto Ebenezer Harris, Esquire, in a plea of trespass on the case, for that whereas the said Ebenezer is a true, honest, just, and faithful citizen of this and the United States, and as such hath always from his nativity hitherto behaved and governed himself, and also hath, for the term of six years last past, been, by the Legislature of the State of Vermont, duly appointed, commissioned, and sworn to the…

(Reserved Case.) ACTION on the case for a libel. At this term this cause was reargued, there being a new bench ; but as the arguments of the counsel did not materially vary from those addressed to the former Judges as reported, p. 167. of the first volume, they are omitted.

IN ERROR. This writ was brought to reverse a judgment of Bennington County Court, rendered Manchester June term, 1801. The writ was entered at the July adjourned term of this Court the same year; at which term, upon oyer of the record craved and read, and diminution alleged, the Court, on motion of the Attorney for the State, issued the following writ of certiorari to the Clerk of that Court. State of Vermont.

THE plaintiff had brought an action against Griffin, and declared in general indebitatus assumpsit. The writ was made returnable to Windham County Court, June term, 1801, and service commenced by attaching Griffin’s property on the 31st of December, 1800, and completed by leaving an attested copy of the process with him, on the 26th of May, 1801. Griffin deceased on the 7th of June following, being the day before the essoin day.

INDICTMENT against one who had been a Justice of the Peace for a misdemeanor m renewing a writ of execution after his commission had expired, and entering official fees for such renewal on the same.

DEPARTURE in pleading. The plaintiff declared in debt on a bond. The defendant craved oyer. The penal part read is in the common form.

THE plaintiffs, as selectmen and overseers of the poor of the town of Windsor, declared against the defendant in several counts of general indebitatus assumpsit. First. For 100 dollars, money laid out and expended. Secondly. For work and labour done. Both stated to be on the 1st day of January, 1801.

<p>When a creditor has taken out a writ of execution upon a judgment against two, one of whom has been commit. ted upon it to prison, admitted to the liberties, and escaped, and the bail-bond has been assigned by the sheriff, and received by the creditor, he cannot maintain debt on such judgment against both.</p> <p>Regularly, debt cannot be maintained on a judgment, unless a return on the writ of execution is shown, by which it shall appear that the execution has not been satisfied in whole or in part, or it is made evident by the record that no such writ ever issued.</p> <p>A correct declaration in debt on judgment always alleges that the judgment is not satisfied. This is so essential that if omitted the declaration would be ruled insufficient on a demurrer.</p>

TROVER, and rule in arrest; The plaintiff, in his capacity of constable of the town of Hartford, brought his action of trover for two barrels of cider containing 64 gallons, and one hogshead of West India rum, containing 100 gallons, which in the usual form he alleged that he possessed and lost, and which were converted by the defendant on the first day of September, 1800.

<p>The advising a person against whom the sheriff has a precept, and whom arrest, to draw a line on the ground and to forbid the officer to pass it, and asserting that if the sheriff passed the line and the person killed him, the law was on the person’s side, will support an indictment against the adviser for impeding and hindering a civil officer in the execution of his office.</p> <p>A sheriff is not obliged to show his precept, either to the person to be arrested by it, or to the by-standers.</p> <p>Vermont stat. vol. 1. c.xxxiii. p. 353. s. 5.</p>

<p>Whenever the Court discover that their jurisdiction of a, cause has been expressly aken away by statute, they will dismiss the same peremptorily.</p> <p>Where jurisdiction is expressly taken from a Court by statute, it cannot be created in them by consent of parties, much less by the laches of a parity in neglecting to plead an available plea.</p> <p>Vermont Stat. vol. 1. p. 101. passed Nov. 5, 1801.</p>

<p>DEBT on gaol-bond.</p> <p>The plaintiff declared in debt on gaol-bond, demanding 100 dollars, the penal sum of the bond; and alleged, that on the 16th July, 1800, by the consideration of Horace Beardsley, Esquire, Justice of the Peace, he recovered judgment against the defendant James Morse, for the sum of 11 dols. 37 cts. damages, and 2 dols. 4 cts. costs of suit. That on the 15th of August following, he purchased out his alias writ of execution upon the judgment, and delivered the same to the constable of Cabot, who committed Morse to the prison in Danville. That on the same day the defendants executed the bail-bond to Rankin, sheriff of the County, and keeper in chief of the prison, to indemnify him against any escape, That on the 10th of October, 1800, the defendant Morse escaped from the prison, having never paid the debt to the plaintiff, nor been any way legally liberated, whereby the sheriff became liable to pay the debt and costs to the plaintiff, and was thereby subjected to loss and damages, by reason whereof the said writing obligatory became forfeit. That the sheriff assigned the bond, according to the statute provision and form, to the plaintiff. The' declaration then concludes with the usual profert and averment.</p> <p>Writ served 19th of December, 1800.</p> <p>To this declaration the defendants pleaded in bar.</p> <p>And now the defendants come, &c. and defend the force and injury, when, &c. and plead and say, that the plaintiff from having and maintaining his said action against the defendants ought to be barred. Because they say, that although true it is, that the plaintiff recovered judgment in his favour against the said James Morse, and took out execution on said judgment against the said James, and caused him to be committed to prison, as set forth in the plaintiff’s declaration; and although true it is, that the defendant, said James, was admitted to the liberties of the said prison, and after the admission of the said James to the liberties of the said prison, the defendants executed and delivered to the plaintiff the bond or writing obligatory in the plaintiff’s declaration described, yet they say, that after the commitment of the said James to prison as aforesaid, and after the making, executing, and delivering the said writing obligatory to the sheriff as aforesaid, and before the said James quitted the liberties of said prison, and before the liberties of the same were in any way broken by the said James, and before the assignment of said writing obligatory by the said sheriff to the plaintiff as set forth in his declaration, to wit, on the 16th day of October, A. D. 1800, Samuel Chamberlain, Esquire, then, and for more than sixty days then next following, one of the Justices of the Peace within and for said County of Caledonia, and William Chamberlain, Esquire, then, and for more than sixty days then next following, one of the Judges of the County Court, within and for said County, on application of said James, issued their certain precept in due form of law, called a citation, by them signed in their capacities aforesaid, in the words following, to wit:</p> <p>State of Vermont.</p> <p>Caledonia, ss. To the Sheriff of Caledonia County, his deputy, or either of the constables of Peachum, in said County, greeting.</p> <p>Whereas James Morse, of Cabot, in said County, has this day made application to me, William Chamberlain, Esquire, one of the Judges of the County Court, within and for said County, and Samuel Chamberlain, Esquire, one of the Justices of the Peace for said County, stating to and informing us, that he is now confined a prisoner in the common gaol in Danville, in said County, by virtue of an execution in favour of Zachariah Childs, of, &c. for the sum of 11 dols. 37 cts. damages, and 2 dols. 4 cts. costs of suit, and for 25 cents for an original execution, and 25 cents more for an alias, and for 2 dols. 25 cts. for commitment fees, signed by Horace Beardsley, Esquire, one of the Justices of the Peace within and for the County of Caledonia, bearing date the 15th day of August, A. D. 1800, and returnable within sixty days from the date of the same, directed to the sheriff of Caledonia County, his deputy, or either of the constables of Cabot, in' said County, issued on a judgment recovered before the said Horace Beardsley, Esquire, Justice as aforesaid, at a Court holden at Cabot the 16th day of June, 1800, on a proper action of contract and promise, and that the said James hath not estate either real or personal, in possession, remainder, or reversion, to the value of twenty dollars, necessary apparel and bedding for himself and family excepted, nor sufficient to pay the damages and costs for which he is committed to prison, and that he has not disposed of the same since his commitment, except for the necessary subsistence of himself and family, nor sufficient to support himself in said prison, and praying to be discharged from said imprisonment, on taking the oaths prescribed in an act entitled, an act relating to gaols and gaolers, .and for the relief of persons imprisoned therein.</p> <p>These are therefore,</p> <p>By the authority of the State of Vermont,</p> <p>To command you to make service to Jonathan Ware, Esquire, of Peachum aforesaid, attorney for said Zachariah Childs, that he, before said William Chamberlain, one of the Judges as aforesaid, and Samuel Chamberlain, one of the Justices of the Peace as aforesaid, on the 10th day of November next, at two o’clock in the afternoon, at the house of John Baldwin, of Danville aforesaid, appear and show cause, if any he has, why the said James should not be admitted to the oaths aforesaid, and be thereupon discharged from his said imprisonment.</p> <p>Hereof fail not, but of this writ and your doings hereon make due return according to law.</p> <p>Dated at Danville, the 16th of October, A. D. 1800.</p> <p>William Chamberlain, Judge.</p> <p>Samuel Chamberlain, Just. Pacis.</p> <p>Which said execution, described in said citation, is the same execution described in the plaintiff’s declaration, and the same issued on a judgment recovered in a proper action of contract and promise; and the said Ware, the defendants aver, was the attorney who brought forward said suit on which said execution issued as aforesaid; and the said James, on the 18th day of October aforesaid, caused the said citation to be delivered to Benjamin Sias, who then, and for sixty days then next following, was a legal deputy under John Rankin, Esquire, sheriff of said County of Caledonia, to serve and return according to law; and the said Benjamin, so being sheriff’s deputy as aforesaid, afterwards, to wit, on the day and year last aforesaid, duly and legally served said citation on the said Jonathan Ware, and duly and legally endorsed his return of service on the said citation in the words and figures following, to wit:</p> <p>October 18th, A. D. 1800.</p> <p>Then served the within precept by delivering a true and attested copy of the same to Jonathan Ware, of Peachum, with my return thereon.</p> <p>Attest,</p> <p>Benjamin Sias, Deputy Sheriff.</p> <p>Fees, 3 dols. 50 cts.</p> <p>Which said citation being served as aforesaid, and duly returned to said Justices at the time and place therein appointed for trial, the said William, Judge as aforesaid, and the said Samuel, Justice as aforesaid, then and there opened their Court for the purpose in said citation expressed, and the parties being called in Court appeared; whereupon it was then and there considered by said Justices, that said Court be continued until the 12th day of November aforesaid, at two o’clock in the afternoon, to be holden at the same place; at which time and place the said Justices opened said Court agreeably to said continuance, and the parties being called, the said James appeared; but the said Zachariah Childs being three times publicly called, did not appear; whereupon, after examining said James Morse, upon interrogatories under oath relative to the situation and circumstances of his property, the said Justices were of opinion, and it was by them then and there considered, that the said James was a proper subject of relief under the act in such cases made and provided, and that he ought to be .admitted to the oath by the statute in such case made and provided, and he thereupon be discharged from his imprisonment; and the said Justices did then and there administer to the said James the oath by the said statute in that case made and provided, and did then and there execute and deliver to the said James a certificate in writing by them subscribed in their capacities as aforesaid, in the following words, to wit;</p> <p>State of Vermont.</p> <p>Caledonia, ss. To all people to whom these presents shall come, Greeting:</p> <p>Whereas James Morse, a prisoner in the common gaol in Danville, in the County of Caledonia aforesaid, on an execution at the suit of Zachariah Childs, of, &c. for the sum of 11 dols. 37 cts. damages, and for 2 dols. 4 cts. costs of suit, signed by Horace Beardsley, Esquire, one of the Justices of the Peace within and for said County of Caledonia, and dated at Cabot the 15th day of August, A. D. 1800, has this day taken the oath prescribed in an act entitled, an act relating to gaols and gaolers, and for the relief of persons imprisoned therein? the said Zachariah Childs having been duly notified did not attend; and in our opinion the said James Morse ought to be discharged. Witness our hands at Danville, the 12th day of November, A. D. 1800.</p> <p>William Chamberlain, Judge.</p> <p>Samuel Chamberlain, Just. Pacis,</p> <p>And the said Justices did then and there execute and deliver to John Rankin, then sheriff as aforesaid, and keeper in chief of the gaol in said Danville, one other certificate in writing, subscribed with their proper hands, in their capacities as aforesaid, in the following words, to wit:</p> <p> State of Vermont. </p> <p>Caledonia County, ss.</p> <p>To John Rankin, keeper in chief of the gaol in the County of Caledonia, Greeting:</p> <p>Whereas James Morse, a prisoner in your custody, on an execution of Zachariah Childs, of, &c. (describing the suit, execution, &c. as in the certificate to the prisoner,) has this day taken the oath prescribed in an act entitled, an act relating to gaols and gaolers, See. the said Zachariah having been duly notified did not attend; and in our opinion the said James Morse ought to be discharged.</p> <p>Witness our hands at Danville, this 12th day of November, 1800.</p> <p>William Chamberlain, Judge.</p> <p>Samuel Chamberlain, Just. Pacis.</p> <p>And said James was thereupon, by the order and decision of said Justices, discharged from his said imprisonment, and from said prison and liberties of the same, according to the form, force, and effect of the statute in that case made and provided, and did thereupon depart from said prison, and the liberties of the same, and go at large whither he would; and the said James never escaped from said imprisonment, nor from the liberties of the said prison, before he was duly and legally liberated and discharged from his said imprisonment as aforesaid ; which said discharge and departure from said prison, is the same escape and going at large after his said commitment and imprisonment set forth and complained of in the plaintiff’s declaration. All which the defendants are ready to verify and prove in such manner as the Court shall order and appoint. Wherefore the defendants pray judgment of the Court here, whether the plaintiff from having and.maintaining his said action against the defendants ought not to be barred, and they recover their costs. By their attorney,</p> <p>William Mattocks.</p> <p>And the plaintiff to the defendants’ plea in bar in manner and form above pleaded, replies and says, that he ought not to be barred, because, he says, that the said plea in bar, and the matters therein contained, are insufficient in law to bar the plaintiff from having and maintaining his said action against them, and this he is ready to verify, whereof he prays judgment. For his debt and costs and causes of demurrer, the plaintiff, according to the statute in such case made and provided, makes and sets down the following, to wit:</p> <p>First. That the citation in the plea in bar mentioned, is not to the creditor as is required by the statute.</p> <p>Secondly. That no service of such citation has-been made on the creditors. By his attorney,</p> <p> Jonathan H. Hubbard, * </p> <p>To this replication the defendants demurred.</p> <p>The statute upon Which the plea in bar is said to be predicated in its operation when correctly pursued, deprives the creditor of a common law right, and therefore ought to be strictly construed. If the defendants would shelter themselves under the statute process, they must show that it has been strictly pursued.</p> <p>We demur to their plea,</p> <p>First. Because the statute provides, that the citation must in all cases be to the creditor, “ and such Justices, or either of them to whom application shall be made, shall issue a citation to the creditor or creditors in such execution, of such prisoner’s desire of taking the privilege and benefit allowed by this act.” Here the statute is express; but the citation in the plea is to Jonathan Ware, attorney for said Zachariah Childs.</p> <p>The citation being issued to the creditor, the statute then provides three several modes of serving such citation, the latter to be resorted to only in case the former cannot be effected.</p> <p>First. Upon the creditor personally, or upon his executor or administrator; and in case he or they do not live within this State, then,</p> <p>Secondly. “ Upon his or their agent or attorney, who brought forward the suit; but in case there be no such agent or attorney living within the State,” then</p> <p>Thirdly. “ A true and attested copy of the citatation shall be left with the Clerk of the Court or Justice of the Peace by whom the execution was signed.”"</p> <p>When a statute points to a second alternative, which is not to be resorted to unless the first cannot be had, it is necessary, in resorting to such alternative, to set forth in the process that the first could not be effected, or else there is no foundation for the process upon the second.</p> <p>This citation does not set forth, that Zachariah Childs, the creditor, lived without the Stated but simply summons Jonathan Ware to appear and show cause, See. which, if the creditor Childs lived within this State, (which is a comprehensive term, and implies not only habitancy, but occasional residence,) would be manifestly bad; and as the citation does not set forth that the creditor lived without the State, is certainly ill.</p> <p>Further. It is not merely the attorney or agent of the creditor which the citation must be served upon, but particularly “ the attorney or agent who brought forward the suit on which the judgment whereon the person stands committed was rendered.” Here the citation goes simply to Jonathan Ware, attorney to Zachariah Childs.</p> <p>Therefore we make our second exception to the process, that no service of such citation has been made on the creditor. The whole object of the citation is to notify him, and this, the law says, in case he lives out of the State shall be done by serving the citation, not upon any person who may have a general power of attorney, or a letter of attorney to transact any particular piece of business, but on the particular agent or attorney who brought the suit. There is such apparent reason for this statute distinction, that we trust the Court will see that it is carried into effect.</p> <p>We have an additional reason to offer, why the Court will be peculiarly careful to see that this statute process is correct: because the errors of the Court who issue it cannot be rectified by any other mode than by decision upon the pleadings to an action instituted by a creditor who has been injured by defective and illegal process, as no appeal lies from this Court of Gaol Delivery, nor are their proceedings subject to revision, or their decisions to reversal, by writ of error.</p> <p>arose to reply, but was interrupted by the Court.</p>

<p>In an action upon a promissory note, that defendant, under the plea of non assumpsit, may show that the consideration of the note was a quit-claim deed, executed by the plaintiff to the defendant for certain lands which the plaintiff induced him to purchase, by fraudulently pretending that he had a title to them.</p> <p>Vermont stat. vol. 1. c. x. s. 14 p. 194, 195.</p> <p>Esp. Dig. vol. 1. p. 140.</p> <p>Vide Riley, edit. p. 153.</p>

THE plaintiff declared in general assumpsit, in several counts. First. Held: that where there had been a special agreement, plaintiff ought to declare on it; for he should not be allowed to give it in evidence on a general indebitatus assumpsit; and there is nothing appears why it is not the practice now, excepting a marginal query by the learned author.

TRESPASS against a hired servant for abusing a horse. Plea, not guilty. Trial per pais. It appeared in evidence, That the defendant had hired himself to the plaintiff to work as a labourer upon his farm. That on the 20th of November, 1800, the plaintiff sent the defendant to a smith’s shop to bring home an ox-yoke. That the defendant rode the mare, and in going upon this errand she fell, which occasioned the loss of her foal.

INFORMATION by the State Attorney, for that the defendant, on the 22d of April, 1802, vi et armis stole, took, and carried away from… Held: upon consideration of the statutes, that the prosecutor had his election to prosecute either for felony or misdemeanor, and though there had been several indictments for such offences, yet none have had any such averment as is insisted on to be necessary by the counsel for the defendant, and judgment was given for the prosecutor; but…

State of Vermont. Chittenden District, ss. Be it remembered, that at a Probate Court, begun and holden at Williston, on the seventh day of April, in the year of our Lord 1801, and continued from day to day by adjournments until the 11th day of said April, by the honourable Solomon Miller, Esquire, Judge of said Court, the following sentence, order, or decree, was made, to wit: State of Vermont. Chittenden District, ss.

<p>IN ERROR. The plaintiff brought this writ to reverse a judgment of Chittenden County Court, rendered March term, 1802.</p> <p>Oyer of the record craved, et in nullo est erratum pleaded.</p> <p>It appeared by inspection of the record, that the plaintiff had purchased out a writ of attachment against the defendant, returnable before Joseph Phelps, Esquire, Justice of the Peace. At the issuing of the writ, the magistrate made the following minute thereon, and signed it with his official signature:</p> <p>George Robinson recognised to the defendant in the sum of ten dollars for costs of prosecution in due form of law, before me.</p> <p>The cause was carried by appeal to the County Court, where the defendant filed the following plea:</p> <p>And now the defendant comes, &c. when, &c. where, &c. and pleads and prays, that the plaintiff’s writ may be abated and quashed, and that the same may be dismissed and no further proceedings had thereon, because he says, that the said writ was a writ of attachment, and that George Robinson, the person who recognised for the costs which might arise in the prosecution of the same, is not a freeholder within this State, agreeably to the statute in such case made and provided, all which he is ready to verify; wherefore the defendant prays judgment as aforesaid, and that legal costs may be adjudged to him. To this plea the plaintiff demurred, and the County Court rendered judgment for the defendant, and quashed the writ.</p> <p>And this is the errror assigned.</p> <p>So that the question rests on the 44th section of the judiciary act, “ that when any person or persons, not being freeholders in this State, or being freeholders shall reside without this State, shall apply to any person having authority to issue writs for any process whatever, to summon or attach any person or persons to answer before any court within this State, there shall be sufficient surety given to the defendant or defendants, by way of recognisance, to the satisfaction of the authority signing such process, before the signing thereof, that the plaintiff or plaintiffs shall prosecute his, her, or their writ to effect, and shall answer all damages, if a judgment shall be rendered against him, her, or them; a minute off which recognisance, with the name of the surety or sureties, and the sum in which they are bound, shall be made upon the said writ at the time of signing thereof, and signed by such authority; and if any-writ be otherwise issued, the same on motion shall be abated.”</p>

AT the last term, the Grand Jury presented an indictment against William Bryant, billa vera. A capias issued, and he was apprehended and gave bail, with sureties for his personal appearance at this term.

IN ERROR. In this cause judgment was rendered for the defendant, and the plaintiff moved to enter a review, and had leave, as it appeared that in some of the Counties it had been heretofore the practice ; but the Court then suggested a doubt of the propriety of the practice, and have since, after consultation, refused the entry of a review upon a judgment rendered upon a writ of error.

<p>On an indictment for horse-stealing whatever may be the circumstances of the taking, it must be left to the jury to determine whether taken with a felonious or furtive intent.</p> <p>Vermont stat, vol. 1. p. 333.</p> <p>Hale's P. C. 509.</p>

INDICTMENT for perjury. The indictment charged the defendant with wilful and corrupt perjury, and stated in substance, that at a Justice’s Court, holden before Mr. Justice Cobb, at-, to wit, on the 11th day of August, A. D. 1801, the prisoner appeared as a witness in. a cause wherein Joel Titus, as plaintiff, had impleaded one Hubbel, in an action upon book account, That it became material to the issue, whether a certain sum charged in the plaintiff’s day-book, had been…

ACTION on the case for an escape. General issue pleaded, and the pleadings closed to the Court, The plaintiff declared, That on the 23d of September, 1794, he purchased out a writ of attachment against one Josiah Farnum, in which he declared upon a promissory note made to him by Farnum for the sum of 113 dols. 84 cts. and interest, which writ was made returnable to Chittenden County Court, February term, 1795.

DEBT on a gaol bond executed to the plaintiff for the liberties of the prison. The plaintiff demanded 200 dollars, and declared on the penal part of a bail-bond executed by the defendants jointly and severally with Levi Allen, dated 31st of July, 1798. The defendants prayed oyer of the bond and condition, which was read.

IN ERROR. Oyer of the record craved, et in nullo est erratum pleaded.

DEBT on an award of arbitrators. Demurrer to the declaration. Held: used, occupied, and enjoyed by the said Charles Blin, and the value of certain improvements made thereon, they therefore, the said Charles and George, on the 10th day of January, A. D. 1795, for the final end and determination of all such disputes, by their certain bond or obligation in writing, sealed with the several seals of them…

<p>The Court are not held judicially and ex officio to notice a private act of the General Assembly. He that would take the benefit of it must attach it to the record,</p> <p>When the Legislature, by a private act, grant a new trial, and make no mention of the term at which the action shall be docketed, it shall be construed to intend the next term after the passing of the act; and an adjourned term, when a stated term intervenes, shall not be considered as the next term.</p> <p>Vermont Stat. vol. 1. p. 96, 97.</p> <p>Vermont stat. vol. 1. p. 97.</p>

ENDORSEES of a promissory note against the promisor. The plaintiffs declared on a promissory note made by the defendant to one Edward Ryan, and by him endorsed to them. The defendant pleaded non assumpsit to the declaration, and filed the following plea in set-off.

<p>The deposition of a former town clerk may be admitted to show his general mode of transacting his official business.</p> <p>Fays edit. of the Laws, Appendix, p. 38.</p>

DECLARATION in case upon a special promise made to the plaintiff Lucretia when sole.

INDICTMENT for larceny. The indictment charged the defendant, that at Middlebury, on the 25th of December, A. D. 1802, vi et armis, he stole, took, and earned away seven yards of muslin, a portmanteau, and sundry other chattels, principally tin ware, of the proper goods and chattels of Thomas Clerk, then and there being found, &c. contra formam statuti. Trial by Jury.

GENERAL indebitatus assumpsit. The plaintiff declared, that the defendant, on the 1st of January, 1800, was indebted to him in the sum of 100 dollars for work and labour done at his special instance and request, on his farm in Bridport, &c. Second count. Same sum for money had and received to the plaintiff’s use. General issue joined to the country.

THE plaintiff declared upon a bail-bond executed by the defendants on the 21st of March, 1800, as sureties to Charles Follet, for the liberties of the prison, to the sheriff of Bennington County, and by him assigned to the plaintiff, the original creditor; and then assigned the escape of Follet in breach of the bond, The defendants pleaded in bar (first reciting the process in substance) the following certificate, to wit: State of Vermont. Bennington County, ss.

CASE. Declaration for betterments,† filed January term, A. D. 1801.

CASE on a promissory note, endorsee against promisor, with plea of set-off. The plaintiff declared upon a promissory note, dated at Quebec, November 1, 1790, made by the defendant to Thomas Aylwin, or order, for the sum of 251l. 11s. 9d. Halifax currency, payable on the 13th of June following.

IN ERROR. This writ was brought to reverse a judgment rendered by Addison County Court. It appeared, that in the original action David Brydia declared in case, demanding 2,000 dollars in several money counts. The defendant Platt pleaded in bar a submission of all matters in demand between them to certain arbitrators on the 9th of February, A. D. 1798, their award to be made and delivered to the parties by the first day of June following.

THIS was an appeal from the report of commissioners upon an insolvent estate. 1 he appellant entered the certified copies from the registry of probate, but had omitted to file a declaration, although the nature of his claim might be understood from the certified record.

THE indictment charged the defendant, that at Rutland, See. on the evening of the 1st day of January, 1803, with force and arms, he feloniously took, stole, and carried away one portmanteau, value 5 dollars, containing one 100 dollar bill of the United States Branch Bank in Boston, one bill of 50 dollars of the Boston Union Bank, one 20 dollar of the same bank, and three 10 dollar bills of banks unknown to the Jurors; of the proper goods and chattels of one Oliver Whitney,…

<p>Torture to extort a confession of the truth from persons accused of crimes, contrary to the common law and constitution of Vermont.</p> <p>Vermont stat. vol. 1. p. 33.</p> <p>Vide ante, vol. 1. p. 36.</p>

PLEA of auterfoits convict, in bar. The indictment charged the defendant with an assault and battery on one Elias Doty, at Wallingford, on the 24th of March, A. D. 1802.

<p>THE plaintiff declared upon a promissory note made by the defendants jointly to one Ebenezer Kingsley or order, and by him endorsed, and notice of the endorsement given,</p> <p>The defendants filed a declaration in set-off, with several counts, as against the endorsor before notice received; one of which counts was upon a receipt given to the defendant Willard upon settlement of book accounts, in which Kingsley acknowledged' there was due to him a balance of 44 dols. 68 cts.</p> <p>The question now made was, whether, as the note was made jointly and not severally by the defendants, they could, in their declaration in set-off, count upon any sum due to either individually.</p>

In this cause, at the Court below, the Jury found .all the defendants guilty. Isaac Meachum alone appealed ; and when the cause was called in order, the other two defendants proceeded to plead by their attorneys. objected, and insisted, that Jonathan Meachum and Crammer were not in Court; that by neglecting to appeal they had submitted to the verdict in the Freehold Court, with which they must rest satisfied.

<p>The interest which will exclude a person from testifying, must be a direct interest in the event of the suit; not a contingent, remote or possible interest; and in all cases of doubt the Court will admit the witness to testify, and submit his credibility to the Jury.</p>

<p>It is good cause of a challenge to a Petit Juror, that he has been recogi sed for costs of presecution in the suit, though he has been discharged from his recognisance. And although such Juror may have remained on the panel by consent of parties, yet this shall not conclude the party from challenging him for this cause, upon the impanelling another Jury to try the same issue?</p> <p>Vide vol. 1. p. 4.</p>

ACTION against an officer for neglecting to return a writ of attachment.

<p>After complaint made for the non-entry of an appeal, and prayer for affirmation of the judgment in the Court below, with additional damages and costs, the Court will on motion, allow the appeal to be entered under a rule.</p> <p>Vide vol. 1. p. 479.</p>

DEBT on gaol bond. The plaintiff declared upon a bail-bond executed by the defendants to the sheriff of Rutland County, as keeper in chief of the County gaol, conditioned that Silas Whitney, a prisoner confined upon an execution which issued in favour of the plaintiff, upon a judgment rendered by the Supreme Court of Judicature, July adjourned term, 1798, for 174 dollars debt and costs ; and then alleged an escape on the 18th of April, 1801, and an assignment of the bond…

<p>In an action of trespass quare clausum fregit against two, the regular levy of an execution upon a judgment rendered against one of the defendants who had quitted possession before, and never intermeddled with the possession since the levy, cannot be given in evidence against the other, who was in adverse possession at the date of the levy, and has not surrendered his possession since.</p> <p>Vermont Stat. vol. 1. 323.</p>

<p>In case on the statute to recover the mesne profits of land levied upon defendant by execution, the defendant is not estopped from showing that he had no title to or interest in the land.</p>

ABATEMENT. This was a plea in abatement . to the writ. First. For that the writ was served and returned by J. W. as a person especially deputized, when in fact the said J. W. is not legally deputized and authorized to serve and return the same. Secondly. That the said J. W. is not a meet and proper person to be deputized to serve and return any process. Demurrer.

The plaintiff’s counsel moved for a continuance, stating> that their client had at great expense procured the deposition of a material witness, who resided in another State, at great distance from the Court. That upon the deposition’s being unsealed in Court, and submitted to his counsel, it was discovered that the caption was defective.

ACTION for fraud in the sale of land. Case made for the opinion of the Court. The case stated a colloquium between the plaintiff and the defendants respecting the purchase of a farm, The defendants owned a farm, and proposed to sell it . tp the plaintiff, asserting that it contained one hundred and fifty acres.

<p>DEBT on a recognisance in replevin.</p> <p>Attach the defendants to answer unto George Cushenden and John Rutherford, late merchants, trading in company under the name and firm of Cushenden & Rutherford, in Lansingburgh, in the County of Rensselaer and State of New-York, and Ebenezer Canfield, of Poultney, in the County of Rutland, in a plea that they the defendants render to the plaintiffs the sum of two thousand five hundred dollars of the current money of this and the United States, which they the defendants justly owe and unjustly detain,, for this, to wit, that whereas at Castleton aforesaid, on the fourteenth day of March, in the year of our Lord 1798, the defendant Reynolds and one David Stewart, then of Castleton, in the County of Rutland aforesaid, sued out their certain writ replevin, the date whereof is the day and year last aforesaid, signed by Chauncey Langdon, then one of the Justices, of the Peace within and. for the said County of Rutland, and made returnable to the County Court, then next to be holden at Rutland, within and for said County, on the third Monday of November, 1798, and upon that occasion, and agreeably to the statute in such case made, on the same 'day and year last aforesaid, personally appeared the defendants before Chauncey Langdon, Esquire, Justice as aforesaid, and then and there acknowledged themselves jointly and severally bound and obliged, and firmly holden unto the said John, George, and Ebenezer, their executors and administrators, in the full and just sum of two thousand five hundred dollars, of the current money aforesaid, to be levied of their and each of their goods, chattels, lands and tenements, and for want thereof upon their and each of their bodies, if default should be made in the following conditions: the conditions of which recognisance are such, that if the above bounden Reynolds and David Stewart shall prosecute their said writ of replevin, now here prayed out against the said Cushenden, Rutherford, and Canfield, to effect, or in default thereof redeliver the estate to be replevied as in said writ of replevin mentioned, to the said John, George, and Ebenezer, from whom said estate is to be taken, and answer all damages occasioned by issuing this writ of replevin, then this bond of recognisance to be void, otherwise to be of full force and effect, as by said bond of recognisance, ready in Court to be produced, may fully appear; and for this, that said writ of replevin was directed to the sheriff of Rutland County, his deputy, or either constable of Poultney, in said County, to serve and return according to the precept thereof, and which writ contained the estate particularly to be replevied, and to be delivered to the said Stewart and Reynolds, and the same writ of replevin, on the 15th day of March, I798, the said Stewart and Reynolds put into the hands of Joel Hamilton, then, ever since, and still a legal deputy under Jonathan Bell, Esquire, then, ever since, and still sheriff within and for the County of Rutland aforesaid; to serve and retain according to law, and afterwards, at Poultney aforesaid; on the day and year last aforesaid, the said Joel Hamilton, being sheriff’s deputy as aforesaid, replevied and took the estate in the said writ of replevin mentioned, from the plaintiffs, and the same delivered to the said Stewart and Reynolds, and also left with John Cook, Esquire, attorney for the said Stewart and Reynolds, a hue and attested copy of said writ of replevin, with his return thereon endorsed, and afterwards, to wit, at the November term of the County Court, begun and holden at Rutland, within and for the County of Rutland, on the third Monday of November, 1798, the said Stewart and Reynolds entered their said writ of replevin in said Court; and such proceedings were had in said action of replevin, that the same was continued in said Court until the term of said Court holden at Rutland aforesaid, within, &c. on the third Monday of November, A. D. 1800, at which said term of said County Court; the said John, George, and Ebenezer recovered judgment in said action of replevin against the said Stewart and Reynolds for their costs, and that the estate mentioned and particularly described in said writ of replevin, should be redelivered to the said John George, and Ebenezer, the now plaintiffs, as by the files and records of said County Court, ready here in Court to be shown, may appear. Now the plaintiffs in fact say, that the said Stewart and Reynolds did not prosecute their writ of replevin against them the said John, George and Ebenezer, to effect, nor have they redelivered the said estate, replevied as aforesaid, to the said John, George and Ebenezer, nor. to either of them* nor have they answered any or all damages, occasioned by the issuing, said writ of replevin, nor have the defendants paid the sum contained in said bond of recognisance, by reason of which an action hath accrued to the plaintiffs, to have and demand of the defendants the aforesaid sum of two thousand five hundred dollars. Nevertheless the defendants have neglected, and refused, and still do neglect and refuse, to pay to the plaintiff the said sum of, &c. - or any part thereof, although to pay the same they the defendants - have been often thereunto .requested,, which is to the damage of the plaintiffs, as they say, 3,000 dollars,, for the recovery of which, with just costs, the plaintiffs bring this writ.</p> <p>To this declaration the defendants demurred generally, and assigned for causes of demurrer,</p> <p>First. That the plaintiffs have not set forth any right in themselves to the estate replevied.</p> <p>Secondly. That they have not, in their declaration, described the estate, goods and property replevied.</p> <p>Thirdly. That they have not alleged any especial demand for the redelivery of the estate replevied.</p> <p>The cause was argued by Cook, for the plaintiffs, and Langdon for the demurrants.</p>

<p>An action will well lie in the name of a deputy-sheriff, on a promise made to him by a third person, to surrender the body of a debtor within the life of an execution.</p> <p>Vermont Stat. vol. 1. p. 307.</p> <p>Riley's edit, 1806.</p> <p>Vide vol. 1. p. 457.</p> <p>Vermont stat. vol. 1. p. 94.</p>

MOTION in arrest of judgment. _ This was an action for words. The plaintiff declared in two counts, and had a verdict for 182 , dollars and costs. The defendant filed the following motion: Darius Chipman v. John Cook. Rutland County, Supreme Court of Judicature, May adjourned term, A. D. 1803.

<p>Vermont stat. vol. 2. p. 231.</p> <p>When the sheriff, as collector of taxes in an unorganized township, sets forth in his deed, “ that he hath in all things proceeded according to law," it will be always be received as prima facie evidence that he hath proceeded legally in all matters relating to the sale of land for the non-payment of taxes, where a special record is not made necessary by statute.</p>

<p>ORDER of the Supreme Court of Judicature reversed.</p> <p>The plaintiff brought an action against the defendants as obligors in an administration bond, executed to him in his official capacity, dated 21st of October, 1788, conditioned that Whitfield Foster and Jonathan Parker, junior, administrators on the estate of Solomon Johns, deceased, should exhibit an 'inventory of the intestate’s estate, See. in the usual form. This action was entered at the Rutland County Court on the third Tuesday of November, 1797, came by appeal to the Supreme Court, and at the May adjourned term, 1800, the defendants, on motion, obtained an order of the Court that the name of the person on whose application the suit was brought, should enter as prosecutor. At the February term, A. D. 1802, the plaintiff filed the following motion, which was argued and reserved for consideration, and judgment delivered this term.</p> <p> State of Vermont. </p> <p>Supreme Court of Judicature, Rutland County, February term, A. D. 1802.</p> <p>Elisha Clerk, Judge of Probate, v. Whitfield Foster and others.</p> <p>And now the said Elisha Clerk moves and prays the Court here, that a certain rule and order of said Court, heretofore made in the case aforesaid, may be reversed and annulled, which said order is as following, to wit:</p> <p>Supreme Court of Judicature, Rutland County, May adjourned term, A. D. 1800.</p> <p>Present in Court,</p> <p>Honourable Enoch Woodbridge, Chief Judge. Noah Smith, Assistant Judge.</p> <p>Elisha Clerk, Judge of Probate, v. Whitfield Faster and others. .</p>

THE defendants were indicted before the County Court. The indictment contained four counts: the three first for a riot, the fourth for a common assault and battery. They went to trial in the lower Court, and the Jury found them guilty only on the fourth count. They appealed to this Court, and now a question is made, whether the defendants, who had been arraigned and pleaded not guilty to the indictment, were held to defend on the three first counts in the indictment.

AT this term the Grand Jury came into Court, and stated by their foreman, that a complaint had been exhibited to them; charging. Silas Baldwin, one of their fellows, with an offence. That they considered it improper to proceed in the examination of witnesses in the presence of the person accused. That they had desired him to retire, but that he had declined, and requested the Court to order him to retire during this particular investigation.