Volume 2 — Vermont Reports

This was an action of Trespass, in which the Plaintiff declared against the defendants, jointly, for that two dogs of the defendants worried and killed the sheep of the plaintiff. The action was predicated upon the sixth section of an act entitled “an act more effectually to prevent trespasses in certain cases.” The defendants pleaded not guilty, and issue was joined to the country.

<p>fThat the plaintiff cannot recover the amount of a money pledge, tall he has discharged the claim for which the pledge was made, though the defendant had neglected and refused to pay the same at the time stipulated.</p> <p>Note. After the above judgment was announced, Mr. Bates, for the plaintiff made a formal written motion that the costs in this suit should be deducted from a larger sum in costs, decreed for said Munson to pay to said Sellictcy in a suit in chancery decided in this court in 1828. The counsel for Mmison objected on account of their lien upon the costs in this suit. The Court asked the plaintiff^ counsel if they objected to the support of this lien, after the decision of Chipmaji et al vs. Heart ?*— They answered they had none. The costs were then taxed ; die amount of the lien ascertained and deducted, and the remainder directed to be offset against so much of the cost Pellicle had recovered in the Chancery suit.</p>

This cause, was set down for a hearing upon an amended bill, and the answer of the respondents, and a traverse to that answer.

That A, receiving trust-property, knowing it to be such, in payment of his own debts, is liable to accountfor the same, with the cestuique trust. That the defendant, in rendering his account of trust-property, ifhe tvould avail him self of a pledge of personal property to secure to him a sum of money, must not answer by merely describing the written pledge : but must aver what sum was due to which the pledge might attach.

<p>„ In an action on a promissory note, given for the purchase of the payee’s patent right of making, using and vending saddles of a particular description, it is not relevant, under the plea of non assimvpsit, for the defendant to show that the invention, for which the patent was obtained, is useless and of no value.</p> <p>It is not a valid defence to such an’action, that the vendor of the patent, in order to in-dúce the defendant to purchase the right, falsely represented to him that one N. H. a saddler by trade, had offered a large sura for the right of making, using and vending the patent saddles in a particular district, and that the uniform price for a licence to make said saddles was $3,00 each, and that the defendant was induced to purchase said right by such representations. Such representations, though false,and made with a [view to induce the defendant to purchase, do not constitute a fraud whereby the defendant can avoid the note.</p>

<p>This was an action of Trespass, for seizing and carrying away a horse. Plea — not guilty, and notice of special matter to be given in evidence, At the trial in the County Court, at March Term, 1828, the plaintiff proved the taking and carrying away, by the defendant, of the horse in question, as alleged in the declaration. The defendant, in his cjefence, offered to prove that at the time of said taking, die horse was a stone horse or stallion, two years old spm’e time in-the Spring in which he was sold; of which the plaintiff was owner ahd keeper — That the plaintiff suffered said horse to run at large, out of the enclosed ground of the plaintiff, and that the defendant having found the said horse running at large and doing damage to him, impounded him, ahd that twenty-four hours after impounding, he gave notice thereof to the plaintiff — That the defendant, within three days after said notice, caused the damages to be appraised according to the statute — That the plaintiff, within three days after, was notified of the appraisal, and that he neglected and refused for three days or more, after both of said notices, to pay to the defendant the amount of said damages, together with the expenses, &c. The defendant contended that these facts would constitute a good de-fence to the action. But the Court ruled otherwise, and were of opinion that the defendant must also shew a legal sale of the horse. Whereupon the defendant offered further to prove that he had advertised the horse for sale, for four days, at the school house, in the town of Williston, and, at the time set for sale, sold said horse at the barn-yard of the defendant. But it appearing that the place of sale was not mentioned in the advertisement, the evidence was rejected by the Court.</p> <p>The defendant then offered to prove, that the plaintiff neglecting to pay said damages and costs, the defendant advertised the horse for sale, at least four days, at the same place where it was afterwards sold, but at a'time previous to the time set in the advertisement; which advertisement was torn down by some person unknown to the defendant. Whereupon the defendant omitted to sell on the day set, but posted up a second advertisement. The defendant also offered to prove that the plaintiff knew of the time and place of sale, and employed an agent to attend the salej who did attend and bid off the horse for the plaintiff. To the admission of all which evidence the plaintiff objected, and the same was excluded by the ■ Court, and a verdict' was returned for the plaintiff.</p> <p>The defendant filed exceptions to the foregoing opinions of the Court; and the cause now came before this Court on a motion for a new trial, founded on said exceptions.</p> <p>The counsel for the plaintiff contended, That the advertisement was void, because it did not mention the place of sale. It was put up at the school house, and the property was sold at the defendant’s barnyard. — Statute, p. 453, s. 10, and p. 450, s. 1.</p> <p>defect could not be cured by Sutton’s having notice of the place of sale. The advertisement is intended to give no-bee to all, that any one may, if he chooses, come in and bid.</p> <p>And Beach, neglecting to pursue the steps pointed out by ilie statute, was a trespasser ah initio. “ If a sheriff have not re-* turned a writ, which ought to have been returned, he becomes & trespasser front the beginning, as to every act done under it.” — - 2 Swift’s System, 96. — 5 Dane, 566. Whenever an authority is given by law, to a person, and he abuses it, he is a trespasser ah initio. Purrington vs. Loring, 7 Mass. 388. — Sackrider vs. McDonald, 10 Johns. Rep. 253. — Van Brant et al vs. Schenck, 13 Johns. 414. — Merrit vs. O’Neil, 477. Johns. 477,</p> <p>The Counsel for the Defendant contended, 1. That thetaic-ing, impounding, appraisal of the damages, and notice to the owner, so far divested the owner of the possession of the property taken, that he cannot maintain trespass ; and that it was not nej cessary to shew any sale. Smith vs. Miller, 1 T. R. 480.</p> <p>2; A mere nonfeasance, or irregularity in the proceedings, will not make the defendant a trespasser ah initio. Gardner vs. Campbell, 15 Johns. Rep. 401. — 1 Chitty’s Pl. 172. — 1 Swift’s Dig. 528. Where the original taking is lawful, the subsequent act must be such as to injure the plaintiff, in order to make the defendant a trespasser ah initio. Hammond’s N. P. 53-4, 57-8, 58-9.</p> <p>3. If there was any defect in the advertisement, it was cured Or waived by the plaintiff’s attendance at the sale, and bidding by his agent.</p> <p>4. The second advertisement, connected with the fact that the horse was sold at the place mentioned in the first, in the presence of, and to, the owner, was a continuance of the first advertisement, and the whole was but one advertising.</p> <p>5. The proceedings were all regular and legal. The omission to state the place of sale in the advertisement was not material. The impounder, after the appraisal of damages, notice and advertisement, is authorised to sell. By these proceedings the Owner is divested of all interest in the property, and the direction in the statute to advertise, being general, not in terms requiring the place of sale to be mentioned, he cannot complain, unless his interests are affected by the omission. The first object of the act Is to satisfy the damages and the expense of the impounder, and next to secure the surplus to the town. In neither case has the defendant any interest. So far then as the owner is concerned, there is no reason for requiring the place of sale to be advertised, and hence this requisition is omitted in the statute. The statute directing the mode of selling property on execution, requires the place of sale to be particularly advertised, because the owner has an interest in the sale. St at. 209. Also in the sale of real estate at auction by execution. Statute 343 — Sec. 9.</p> <p>6. The defendant contends that he must necessarily sell where the hoVse was impounded — That he had no authority to sell elsewhere, and, of course, the place of sale must have been known by the plaintiff to be at the pound.</p>

<p>B, with a number of other persons, signed a subscription-paper, thereby promising to pay to die University of Vermont fifty dollars, for die purpose of erecting such suitable college buildings as the Corporation thereof should think advisable — In an action brought against B, after the erection of the buildings, to recover the amount of his subscription, it was held that the acceptance of the subscriptions by the Corporation, and the actual commencement of the work, with a view to complete the same, so consummated the contract, thatB couldnot avoid payment on the ground that there was no consideration for the promise.</p> <p>When one, by voluntary subscription, promises topay in labor or materials, at his option, another season, for the purpose of erecting college buildings, and who can be presumed to know that the buildings are being erected, a demand on him for the labor or materials, previous to tire completion of the work, is not necessary. A demand made after the buildings are finished is sufficient, if the payee is ready and willing to receive such pay at the college, or at any other place equally convenient for the promisor.</p> <p>If the promisor, in such case, wish to discharge himself from his undertaking, he must make an offer ofpayment to the committee appointed to erect said buildings, or to the person or persons to whom his subscription has been assigned.</p>

<p>F and W were joint owners of a quantity of lumber, aud one B purchased it of W. Afterwards, B paid to F thirty dollars on account of said purchase : after this W, claiming to have been the sole owner of the property, sued B for the purchase money ; and B in order to avoid a law-suit, paid said sum to W. Afterwards F, and W submitted all matters in dispute to referees, and in the exhibits F credited to W the thirty dollars, which was allowed. B then brought an action against F and W to recove): back one of said sums. F and W both appeared, and the suit was continued : but they, not appearing again, were defaulted, and judgment was rendered For the amount claimed. F paid a part of said judgment, and brought an action against W to recover from him the amount so paid. It was held that W was liable to Ffor the amount F had paid on said judgment.</p>

<p>F, by deed granted to another a certain water privilege for the purpose of sawing and manufacturing marble in a mill contemplated to be built on the premises; and “also the right of procuring marble from the grantor’s land free and unmolested; but not to the exclusion of other grantees” — Held that the grantor had no right to the small pieces of marble necessarily broken off by the grantee in blasting, and in re. ducing the blocks to a shape suitable for cawing.</p>

<p>The?questions of law which the court were called upon to .decide, in this case, arose upon the acceptance of an Auditor’s-report, in the County Court of this county, April Term, 1827;</p> <p>The case shows that one Elisha Boardman of South Hero was the owner of a sloop or boat which navigáted Lake Champlain j ■and that Jona. Boardman was the master; arid, by the terms of the contract between the said Elisha and Jonathan, the latter was to have the entire controul of said boat, and was bound to account with the said Elisha for the one half of the net proceeds, after deducting expenses and repairs—That Abner Keeler, one of the defendants, is the owner of a farm in South Hero, which he rented to Ebenezer Allen, the other defendant, who obligated himself to deliver to Keeler one half of the products of the same; that if any of the produce was taken to market, Allen was to make the sale, and account to Keeler for one half of the proceeds; and neither had an exclusive right, until a division—That in the fall of 1825, twenty one hogs were fatted on the farm, and Keeler agreed with Allen to market the same in Montreal, and was to be allowed fifty cents per day by Allen for his time—That Allen, with the knowledge and consent of Keeler, applied to Jona. Boardman to freighg the same to St. Johns, L. C.; but had no authority from Keeler to make use of his name, it appears Jona. Boardman required $20 for running down a load, and could carry about forty. Board-man then informed AllentYiztm case he and Keeler should conclude to put their hogs into his boat, one Fletcher Would furnish part of a load upon notice ; and requested Allen to notify him, Which he did, and also notified Keeler of the plaintiff’s terms.—• Keeler and Allen put the twenty one hogs, together with nine others, the property of Keeler, on board; Fletcher also sending eighl other hogs on board. After sailing, plaintiff enquired of Keeler, who was in the boat, to whom the hogs belonged ? Keefer’s reply was, thathe had the charge of them ; (that is, the thirty; Fletcher sending his own son with the eight,)—that the plaintifi had no knowledge to whom the hogs belonged, other than from the conversation with Allen and Keeler before stated.</p> <p>^6S0 are &0 only material facts in the case. Jona. Board-nan brought his action of book debt for the freight against Allen and Keeler jointly. Many questions were raised and decided by -Auditor, which are not necessary to notice. He reported to. the County Court a balance due irom the defendants to the plaintiff, of $11,95 cents, for the freight of the 21 hogs. '</p> <p>To the acceptance of the report the defendants filed the following exceptions in substance;</p> <p>1. The report ought to be rejected, because Elisha Boardman was not joined with the plaintiff in the action.</p> <p>2. Because said Fletcher was not made a co-defendant with Allen and Keeler; and</p> <p>3. Because the plaintiff ought to have brought assumpsit, and not book debt. .</p>

<p>This was an action tipon the Casé, the writ containing three1 counts. The first and third counts, only, become material to b& mentioned. The first count charges, that the defendant erected* a flume, shortening a dam eight feet, and making it two feet higher’ than the dam, which operated to raise the water, so that it flowed around to the injury of the plaintiff’s furnace.</p> <p>The third count was as follows :</p> <p>“ And whereas, also, the said William Wilson, on the first day “ of March, 1823, and long before, and ever since, was, and yet is,. “ possessed of a certain trip-hammer shop and scythe factory, “ situate and being in JYew-Haven aforesaid, at the south end “ of said dam across the lower falls of JYew-Haven river, so called, “ and on said first day of March, 1823, and long before, and ever “ since, the said William carried on, at Said works, his trade and “ business of scythe making and drawing iron, and then had, and still “ of right ought to have, in common with the other proprietors on the “ south side of said river, a right of way from the main road to his “ said works on the south side of said river, over said bridge, on u said river, above said falls, , for himself and his püstómers to pass “ and repass, with their Carriages and teams, as they had occasion; “ and during all that time, the said William, with other proprie- “ tors on the south side of said river, at great expense maintained “ and kept in repair, said bridge, for the purpose of enabling him- “ self and customers to pass and repass thereon, with their earria- “ ges arid teams, to and from said works; yet the said John, con-u triving unjustly to vex and injure the said plaintiff, and to de„ “ prive him of the use and benefit of said right of way, and to pre- “ vent his carrying on his business of manufacturing scythes and “ drawing iron, at said works, in so extensive and beneficial “ a manner as he ought to have done, did, on the first day of March, “ 1823, and on other days and times between that day and the ** present, wrongfully, and unjustly, tear up, break down, cut “ away, and remove, part of said bridge, and put Obstructions on “ the same, so $iat the same could not be passed; whereby the “ said William, during all that time, was deprived of the ben- “ efit of said way, and said bridge, for himself and customers, “ with their carriages and teams, to pass and repass to and from said works : and was thereby prevented from carrying on said i! trade and business of manufacturing scythes and drawing iron, at <* said, works, in so ample and beneficial a manner as he ought to “ have done, and, otherwise, should have done.”</p> <p>The plaintiff had before sued the defendant for raising the same ' dam too high, to the injury of the plaintiff’s water works, higher up the river, and had recovered judgment for his damages and costs ; that the whole dispute and matters of right were submitted to arbitrators, including said judgment, or rather treating said judgment as an undecided action — That the arbitrators awarded against the plaintiff in that action; but, according to the terms of the submission, fixed a bolt in a rock, from which to measure, to ascertain the height, to which a dam might be erected, consistently with the rights of both parties upon the subject; and awarded that the dam might be raised nine feet and nine inches above that bolt.</p> <p>At the trial before the County Court the said award was read in evidence to the Jury on the first count, and the defendant then introduced evidence showing, that, after the making and publishing of said award, the defendant erected, upon said dam, an additional flume, by the side of the flume then standing, and which is still standing, and planked the head of the same flume something more than two feet above the top of said dam; which is not higher than was permitted by said award ; together with evidence tending to show, that the injury complained of, in the first count, was occasioned by said flume.</p> <p>Upon this point, the counsel for the defendant requested the Court to charge the jury, that if the defendant’s dam was not higher than the height given in the award, the defendant had a right to erect such flumes, upon the said dam, as were usual and proper; and that, therefore, the erection of the flume complained of was not an unlawful act.</p> <p>But the Court charged the jury, that the defendant had no right, by the erection of additional flumes, or otherwise, to raise the water higher than the dam, at the height fixed by the arbitrators, would have raised it: and that, if he did so, and the plaintiff was damnified thereby, the plaintiff was entitled to recover.</p> <p>In support of the third count in the plaintiff’s declaration, he offered evidence tending to show, that, since the year 1805, the bridge mentioned in his declaration had stood over the stream in question, until about the first of March, 1823 ; when the same, being ruinous, was thrown down by jdaintiff and others ; which bridge was never a public bridge, but had been maintained by the plaintiff and some others, residing on the west side of the river, for their private benefit: That in March, 1823, the said bridge was thrown down as aforesaid, and had never been rebuilt until Oct. 1625 — That after the bridge was thrown down in 1823, there remained the old logs, which had constituted the abutment on the east side, and which lay either on, or adjoining, the lands of the defendant; and that the defendant, some time in the year 1824, removed them, and threw them into the river.</p> <p>To this evidence the defendant objected, and insisted that, as the way was not then in use, nor the main part of said bridge standing, the plaintiff was not entitled to recover, in this form of action. — But the Court overruled the objection, and charged the jury that, if the timber in question had constituted a part of the old way, and was suitable to be used in repairing or reconstructing the same, and had not been taken away, or devoted to any other purpose, and the plaintiff had not abandoned the way, altho’ the bridge might not at the time have been in use, the plaintiff was entitled to recover.</p> <p>The defendant then offered in evidence a contract between Aaron .Haskins and others, dated on the 8th day of April 1805, respecting the highway, adjoining said bridge — a deed from said Haskins to the plaintiff, dated August 3d, 1812; and a deed from the plaintiff to’the defendant, dated May 25th, 1808 ; which deeds and contract were made a part of the case, as well as the plan of the premises given in evidence by the plaintiff on the trial of the case ; and also evidence tending to show, that the east end of said bridge was about 70 feet from the east bank of said river — the bridge being supported by tressels over the said seventy feet of land ; and contended that, by the said deed from the plaintiff to the defendant, the plaintiff had extinguished his right of way, if any such previously existed.</p> <p>But the Court decided, and so instructed the jury, that the plaintiff did not by said deed extinguish his said right of way, but that if the jury found that the plaintiff had used the said way, from the year 1805, for 15 years, it was sufficient evidence of his right. The defendant then introduced evidence, shewing that after the bridge was pulled down, as aforesaid, the plaintiff and another, who was also interested in said bridge, had divided the materials of the bridge, except such as lay on the east bank, and taken away their several portions to their respective houses, and that they had taken up and piled the principal part, if not all, the remains of the abntment on the east bank, and laid the same in piles .on each side; and contended, that under those circumstances, the plaintiff was not entitled to recover upon his third count. —But the Court overruled the objection and charged the jury as aforesaid.</p> <p>The plaintiff also offered evidence, showing that, some time in the year 1824, the plaintiff, and others constructed, with some of the timbers of the old bridge, a floating bridge for passing on foot, by fastening the timbers together and to the bank — and also testimony tending to show, that the east end of the same was cut loose by the defendant. To this evidence the defendant objected, on the ground, that an injury to this foot bridge was not proper to be given in evidence under his declaration. — The Court overruled the objection, and also charged the jury, that the plaintiff might recover, in this suit, for an injury done to the foot, or floating bridge, provided it appeared that the floating bridge was erected for the temporary enjoyment of the same right of way, and was substantially in the same place; although the abruptness of the bank, and the remains of the old bridge, might have rendered it necessary to vary a little the place of landing or going on to the bank.</p> <p>The defendant filed exceptions to these several decisions of the County Court, on which the cause was removed to this court on a motion for a new trial.</p> <p>Argument of Mr. Phelps on the part of the defendant. — As to the first point excepted to in the charge of the Court, the defendant insists, — That, as the award is altogether silent as to the flumes upon the dam, the defendant was not restricted by it in that respect — That it must have been the understanding of the arbitrators, and of the parties, that the defendant should be at liberty to erect necessary and proper flumes upon the dam, and that such is the legal construction of the instrument — The dam is useless without flumes; and the award, relating only to the length of the dam, leaves the subject of the flumes untouched.</p> <p>As to the second point, the defendant insists that for removing the remains of the old bridge, Trespass, and not Case, is the proper remedy. — The third count, under which this evidence was offered, declares for an obstruction to the defendant’s right of way. — - Nothing, therefore, is pertinent, under this count, except what goes to show a disturbance of the plaintiff in the enjoyment of the easement. — Had the bridge been standing, and in a condition to be used, the destruction or removal of it would have been proper evidence. — But, as it was demolished, not used, nor in a condition to be used, it is difficult to conceive, how any intermeddling with the fragments of it could be a disturbance of the easement.— But, at all events, after the evidence offered by the defendant of the destruction of the bridge by tire owners, and the division of the materials, and the actual removal of the materials, they were no longer to be considered as a part of the way, but as mere personal chattels. — The plaintiff had himself demolished the way} and, although the materials of which it had been composed were his property, yet no after removal of them by the defendant could be an interruption of the easement. — The Court at the trial appear to have misapprehended the objection. — It was not that the right’was abandoned by the plaintiff, but that the act done, by the defendant, was not a disturbance of that right.</p> <p>On the third point, it is contended, that the deed from the plaintiff to the defendant covers the land between the shore and the east end of the old bridge; and that this deed, not containing any exception or reservation of the right of way, the right was extinguished. — The enjoyment, after the date of the deed, up to the time when the bridge was demolished, was not for sufficient length of time to afford evidence of the right.</p> <p>Argument of Mr. Bates, for the plaintiff. — Previous to [the award there had been disputes about this dam’s being too high. There were dams above ; andj William Wilson, owned some interest there. The raising this dam by the defendant injured the plaintiff’s use of works above, and his interest at the lower dam. The action, then submitted, claimed damages for injuries to both. This action in the first count is for the injury at the lower dam. After the height of the dam was fixed by the arbitrators, for any purpose, plaintiff might purchase and erect upon the faith of it. By the deed of William to John, each had a right to half the water. After this is settled, defendant raises a flume inward, towards the stream, higher than the dam. The defendant requests the Court to charge about erecting suitable flumes, &c. It was a breach of the award, or injury to plaintiff’s rights, to erect such a flume as to raise water higher than the dam allowed by the award. This request is vague and improper. The sole question, on this part of the case, is whether this flume occasioned an injury to the plantiff ? By the request to charge, we must understand the charge. The judge charged that the defendant could not, by erecting flumes or otherwise, raise the water above the height contemplated by the award.</p> <p>As to the 3d count, or bridge and interruption of way : The bridge was thrown down in March, 1833, and not rebuilt till Oct. 18251 Butin 1824, the foot bridge was erected, and defendant cut away the east end. — [He read the charge upon this point.] It seems that plaintiff had acquired a right to this way, by use from 1805 to 1823. They erected a temporary bridge, and afterwards, with the materials, a permanent bridge. The defendant took away some of the materials that might have been used in rebuilding. I cannot anticipate Mr. Phelp's argument. To us it appears, that when a bridge goes down, the materials may be used Ib rebuilding. By defendant’s doctrine, if a string piece falls, die bridge is gone. We conceive the right remains in plaintiff, to have the way and Bridge as before it failed.</p> <p>•As it respects the ¿deed from William Wilson to John, it is manifest it does not convey any part of the way in dispute. Whether the land by the town highway extended to the bank of the river, or only to the east end of the bridge, 'it is certain that, at the time the deed was given, there was in fact a highway to and across the river, of which William and others were then in the use and enjoyment; and the description of one boundary line, in the deed,is as follows : “ thence westerly bn said highway to the middle of said river.” From which it is evident the parties considered it a highway».</p> <p>By the expression, “all the lands northerly of the ledge,” the parties meant the lands between the lédge and said highway. The land to the highway on the north side had been described in the deed before. The object of this description was, the’ lands on the south side of the highway; and the phrase “ northerly of the ledge” was used because the ledge was the southern boundary. If we give to this phrase the effect of conveying the road, we must also admit, that it would as well convey the lands north of it, indeed, -all the lands north of the ledge in the town of Neto Haven; and in this case, the description set forth in the deed of the lands north of the highway Was altogether useless ; for in point of fact, they also are north of the ledge.</p> <p>Upon the whole, it is manifest from the deed, that the parties intended it should include the land on the north and south side of the road, but not the road itself.</p>

<p>When an administrator conveys a farm subject to the widow’s dowel, and possession of the two thirds, under a deed, is held over thirty years, — presumption of regular-' ity of the administrator’s proceedings, prior to his deed, arises in favor of the reversion of the dower.</p>

This was an action upon theT Case, againsfikhe defendant, for negligence in lading and transporting'the goods of the plaintiffs from Whitehall to Vergennes.

This was an Audita Querela, stating a judgment recovered by the defendant, against the complainants, before a Justice of the Peace, in an action for an assault and battery ; an appeal from that judgment, and a settlement by the mutual agreement of the parties, each agreeing to abandon the suit, and neither paying any thing to the other; and that Tewksbury afterwards procured an affirmance of the judgment in the County Court, and obtained execution, &c. and praying that both…

Hart and French brought their action on book account against Tomlinson, claiming to recover about $30, on account, the items of which bore date from February, 1816, to June, 1817. The action was brought before a Justice of the Peace, and appealed to the County Court, where judgment was rendered to account, and auditors appointed to take the accounts. The defendant exhibited before the auditors, a claim on book against Richard P. Hart, fy Co. of about $61.

The plaintiff declared against the said Bishee, as indorser of a. note given him by one Eli Manley, dated the 26th of April, 1824, for $200, with interest, payable on the first day of October (then) next, in good neat cattle; or in grain, the 31st day of December, following; and alleging a demand on said days of payment, and notice of non-payment on the 1st of January, being the day next following said last day of payment.

This was an action of assumpsit for money bad and received, money paid, laid out and expended, and work, labor, care and diligence, 'of the plaintiff, in and about the business of the defendant, for instructing one John Whipple, son of the defendant, in the art and trade of a tanner and currier, at defendant’s request. The cause was tried upon the general issue, in the County Court, at April term, 1828.

^18 1,ecorci brought up in this case showed that the parties both lived in Manchester ; that Van Curler had his writ in tro-ver signed by a justice of the peace in Sandgate, and it was made returnable before him at his dwelling house in Sandgate, at a time certain.

This was a scire facias against the defendant as bail of one Caleb Eldred, at the suit of the plaintiff.

This action was brought up from the County Court for a hearing upon exceptions, allowed upon a jury trial. The history of the transaction litigated seems to be this. Joseph Bascom and John A. Bascom, were partners in the clothier’s trade, carried on in Guilford, during a period comprising the whole transaction.

The plaintiff declared upon a note of $425, signed by one Fla-vel Greenleaf, and made payable to ■ the said Jeremiah Green-leaf, or bearer, and by him, at its date, endorsed to the plaintiff. Said note bore date, August 25th, 1818, and was made payable in four years from date, with annual interest. The declaration alleged demand of payment on the 28th of August, 1822, and said Flavel’s refusal to pay; and immediate notice of nonpayment to the defendant.

This was an action of trespass on the freehold, commenced before a justice of the peace. The defendant pleaded title to the close mentioned in the plaintiff’s declaration, and moved that the cause be removed to the County Court for trial.

This was an action of assumpsit brought against David B. Lamson, and Nathan Lamson, the latter of whom had suffered a default. At the trial in the County Court, the defendant, David B. Lamson, pleaded in abatement, that' the Justice of the Peace, before whom the cause was originally commenced, had adjourned the trial for a longer period than three months, that is, from the 26th day of January, 1828, to the 25th day of April, 1828.

<p>One cannot recover for property won of another on a wager, That h certain chaisCf then in sight teas the property of A B»</p>

This was an appeal from the allowance of commissioner* oa the estate of Timothy Cox, and came before the Court on the following statement of facts agreed to -by the parties r “The claim of the plaintiffs exhibited to said was a book account, for various articles from time to time taken up by said Cox, in his life-time, at the store of the plaintiffs, while partners in trade, in Woodstock, between the 13th of January, 1819, and the 4th day of June, A. D. 1824, amounting in…

This was an action of assumpsit, brought to recover the expenditures of the plaintiffs, in support of one William JYourse, and his wife, and a large family of D^onged to said Windham: also, to recover the ej^pene paupers. The first count of the declaratieto trneged the sicknlss and expenditures, and notice, correctly, ItttrESjfe ^Qil«b&i^any order of removal.

This was an appeal from the order of Ephraim B. Stevens and Charles Bale, Esquires, Justices of the peace for the County of Orange, made upon the complaint of the Overseers of the Poor of the town of Newbury, for the removal of “ Nathaniel P. Harriman, his family and effects,” from said Newbury to said Brunswick.

This was a lili in Chancery, alleging that at the June term, 1823, Seth Cushman, then State’s Attorney for said county, filed several informations in said Court against the towns of Canaan, Leming-ton, Minehead, Brunswick, Maidstone, Guildhall, and Lunenburg, for not having furnished themselves with munitions of war according to the requisitions of law, without leave of the Court — That at the October session of the Legislature in 1823, the defendant, Joseph Berry, was…

This was an action of trespass for taking and carrying away two gelding horses, a double sleigh and harness, alleged tobe the property of the plaintiff.

<p>gtatu,e oflimitations runs only from the time when the cause of action wjs , . complete.</p> <p>That when the Sheriff takes a prison bond, there is no cause of action against him till the bond is demanded.</p> <p>That non damnificatvs is no plea to a suit brought by the Sheriff upon a prison bond. The other obligatory parts of the bond must be met also.</p> <p>That a special statute, freeing the body of a prisoner from arrest, and enacting that his escape shall be no breach of his bond, is not valid to authorise such escape*</p> <p>That in such case the plaintiff must recover the whole debt of the creditor.</p>

<p>That no cost shall be allowed for not entering an action when written notice hrtd been served on defendant that die action would not be entered, and no preparatory cost had accrued before suchnotioe.</p>

This was an action of trespass for taking and carrying away four tons of hay, the property of the plaintiff. Plea, not guilty, and issue joined thereon.

This was an action of ejectment mile. Plea, not euiltv. for land in the village of Dan- It appears from the bill of exceptions in this case, that on the 25th day of November, 1822, the defendant owned the premises in question, and on that day conveyed the same by deed to one Ferguson — That on the 29th of December, 1823, the plaintiff attached said premises, on a debt against Ferguson, and after-wards on the 14-th of August, 1824, set off the same on an execution obtained in…

This was an action of assumpsit brought by the plaintiff, as endor-see oí a promissory note, against the defendant, as endorser.

<p>By the exceptions taken at the jury trial in this cause, in the county court, and allowed by the judges,it appears that one Obadiah Rice, Jun. said to be a stranger in Waterford, was sent by virtue of an order of removal to Brookfield — the order alleging that to he the place of his last legal settlement. From this order an appeal was taken to the county court, and duly entered in said court; and there the overseers of the poor of Brookfield filed a motion to quash said proceedings, assigning several reasons :</p> <p>1 st. That the justices making said order of removal did not ex» amine said pauper touching his ability and last place of legal set-ilement, or for any other purpose.</p> <p>2d. That the justices in their order of removal have alleged that they did not examine said pauper.</p> <p>3d. That the justices, making the order of removal, adjudged the pauper to be non compos mentis, without examining the said pauper.</p> <p>4th. That the justices did not leave, or cause to be left, a copy of their order of removal under their hands with the overseers of the poor of Brookfield, nor with either of them, within thirty days from the making of the order, nor at any other time before or since;</p> <p>5th. That the officer removing the pauper returned on his warrant that he left a true and attested copy of the original order of removal as the law directs with John Wheatly, overseer of the poor of Brookfield ; and it does not appear that a copy of the original order, attested by the justices,as makers of said order, was ever so left with said overseer.</p> <p>The motion was overruled by the county court. The appellants then pleaded that the pauper was unduly removed, without alleging any reason in the plea, and an issue, joined to the court, was tried, and exceptions were taken and allowed, by which it appears that the whole dispute upon the merits rested on the sufficiency of the proceedings on the part of Warterjord, warning out said pauper; it being agreed that he once was legally settled in Brookfield, but afterwards became legally settled in Waterford, unless prevented by force of the warning. Said proceedings were -objected to, but admitted, and are as follows :</p> <p>“ State of Vermont, } To either constable of Waterford, in “ Caledonia County, ss. ) the county of Caledonia, greeting :</p> <p>“ You are hereby required to summon Ohadiah Rice, and “ Hannah Rice, his wife, and Obadiah Rice,jr. now residing in “ Waterjord, to depart said town. Hereof fail hot, but of this “ precept, and your doings herein, due return make according to “ law.</p> <p>“ Given under our hands at Waterford, this 21st day of December, 1809.</p> <p>“ Sylv’s. Hemmins;way,1 c 7 . ¡, “ Joseph Reich, & t Mefnm of “ Eben.Farnham, } a erfor</p> <p>u Caledonia, ss. Waterford, ) Then served this warning by “ January 2, 1810. J leaving a true and attested cq- “ py with the within named persons, with my return hereon there- “ on endorsed : Attest, Walter Buck, Const.”</p> <p>“ Waterford, January 4, 1810,</p> <p>“ The above is a true record.</p> <p>“ Attest, Sylv’s Hemmingway, town clerk.”</p> <p>“ Waterford, March 11, 1828.</p> <p>“ The above is a true copy from the record.</p> <p>“ Attest, Sylvanus Hemmingway, town clerk.”</p> <p>There was nothing upon the record which showed that the decision, overruling the motion to quash, had been removed to this Court; but the counsel agreed to consider the whole as regularly before this Court, and both questions were argued together.</p> <p>Mr. Peck, for defendants. — 1. It does not appear from the record that the complaint of the overseersof the poor of Waterford, that the pauper had become chargeable, was in writing. A complaint in writing was necessary to give the justices authority to make the order of removal. This was contemplated by the act* a form of complaint being given. Stat. 324. — 6 Mass. 501.</p> <p>2. The pauper had no notice of this proceeding, and was not examined, but was yet adjudged non compos mentis. The statute is imperative that the pauper shall be notified and examined. Stat. 370, sec. 3. How could the justices legally adjudge the pauper of unsound mind without examination ?</p> <p>3. The statute requires that when an order of removal is made* an attested copy of such order shall be left with some one of the overseers of the poor of the town to which such pauper shall be removed within thirty days from making the order. Stat. 383* sec. 5. — 1 Aikens' Rep. This copy, it would seem, should be certified by the justices making the order; for the record does not go out of their hands. What authority has the officer making the removal, to give a certified copy of the record ? He knows nothing of the record, and can have no access to it. All that comes into his hands is the warrant, a copy of which he is empowered to give. In the present case the person removing the pauper was directed by the warrant to deliver to one of the overseers of the poor of Brookfield a true and attested copy of the order of removal : and in his return he certifies that he “ delivered a true and attested copy of the original order of removal as the law directs.” From these facts, taken in connection, it is evident that the officer certified the copy. The fact that the copy of the order was certified by the justices should in all cases appear affirmatively, and not be left to inference and conjecture. But admitting that the copy of the order, which the officer returns he lodged with the appellants, was duly certified by the justices; yet there is no legal evidence in the case that this copy was left with]the appellants, the officer having no authority to certify this fact.</p> <p>4. The service oí the warning of the pauper to depart the town of Waterford made in 1809, and the record of the warning, are defective, The warning is to summon “ Obadiah Rice, Hannah Rice, his wife, and Obadiah Rice, jr. to depart said town,” fee. The return of the officer is, that he served the “ warning by leaving a true and attested copy with the within named persons.” From this return it is evident that the warning was served on all the individuals named in it, by leaving a single copy -s and no presumption can be raised that this copy ever went into the hasads of Obadiah Rice, jr. Again, the officer returns he left with the individuals named in the warning a “ true and attested copy.” A copy of what ? Perhaps it was a copy of the warning : it might have been a copy of something else. This is a case of strict legal right between the parties ; there is no equity in the case, and nothing can be taken by intendment. The manner of serving warnings should be stated in the return with the utmost particularity. Brayton’s Rep. 181, no. C, 183, no. 10.</p> <p>It does not appear from the record that the proceedings were recorded within the year. The record is, “ Waterford, January 4, 1810, The above is a true record : attest,” &c. A record of what ? To hold that it is a record of the warning, is founding this assertion upon mere presumption, as this fact is not averred. This record is very similar to the one that came up in evidence in a -case between Washington and Chelsea, tried before Judge Pren-tiss in Orange county, December term, 1827. The record iri that case was, “Rec’d for record, Feb’y. 15,1808 : a true record: attest, &cc.” This record was rejected.</p> <p>Mr. Davis, for the plaintiffs. — The first exception is that thé Warning out in Waieiford is illegal.</p> <p>One objection urged against it is, that it does not suffi-ciently appear that the warning and constable’s return thereon were put on record by the town clerk. By the 1st section of the act of 1801, it was made the constable’s duty to return the precept, with his proceedings thereon, to the town clerk, within eight days after service, and it is made the clerk’s duty to •enter both on record ; but the statute does not say when, tho’ it has often been decided that it must be done within one year. Although the certificate of the town clerk may not be very formal, jet it clearly appears that on the 4th January, 1810, within two days after service, both the warrant and officer’s return were on record ) for immediately below both is the certificate that “ the above is ft true record.” It is clear, then, that the officer and town clerk both did their duty. The court below admitted this paper, atidñ is agreed, if they did so properly, it puts an end to-the case, so far as the issue of duly or Unduly removed, or the merits, is con--cei'necb Eor the bill of exceptions shows that-it was agreed, that if this warning out in Wdterjord is to be considered legal, then the pauperis last place of settlement was Brookfield, and he was of course duly removed.</p> <p>Another objection now urged by counsel seems to us of little weight. They say the officer’s return shows that he left but one copy with the three persons named in the warning. The officer says he left a true and attested copy, he. with the within named persons. This must necessarily mean with each of them.</p> <p>We now proceed to notice the motion to quash, made on the ground of some alleged irregularities in the proceedings relative to the order of removal.</p> <p>The three first reasons may all be considered atonce, as they are Pearly allied to each other. They are that the justices did not examine the pauper touching his ability,&c. that they allege they did not examine him- — -and that they adjudged him non compos without examination. These objections are founded, it is presumed, on the' 3d section of the act respecting legal settlements, &c. (Stai.p. 370J authorising two justices to give a warrant to the constable, commanding him to bring the stranger before them to be examined j and said justices shall examine such stranger, he. and any other persons, &c. Defendants’ counsel insist thatthis is, under all circumstances, an indispensable duty, whether any information can be drawn from the pauper or not, or whatever other evidence they may possess. . Plaintiff contends that the statute is to receive a reasonable construction, and one which will leave it discretionary with the justices to examine the pauper, if it can be done, -or is necessary, otherwise not. Suppose the pauper an idiot, an infant below discretion, a deaf and dumb person, a maniac, a dotard, &cc. it is plain that it would be as ineffectual, to put questions to him On the subject of his last settlement, as to a statue, and the law that should require it would be as absurd as ridiculous. In truth, the very import of the term examine implies that the person Examined has intelligence enough to impart some information to the examiners. If the direction to examine implies then that some information may be acquired, it is obvious that in cases like the present, no examination 'can be had ; and should orders of removal be granted on this ground, it would be equivalent to a decision that paupers of the above description, embracing that class most likely to become paupers, could in no case be removed under our law. Braytons’ Rep. 178, St. Albans vs. G-eorgia. — 1 £%- Teens' Rep. áhl, Hartland vs. Williatnstoiim«</p> <p>Fourth and fifth objections. — These are' that no copy of the order of removal, duly attested, appears to have been left with the overseers of defendant town, agreeably to the 5th section of the act passed November 4,1817. The answer is, that the return of the officer follows exactly the words of the law in saying, that he left an attested copy of the order of removal with one of the overseers. He does not, to be sure, say how it was attested, nor does the statute require that he should. The law simply requires an attested copy to be left, and here the officer returns under oath that he left such a copy. It is true, that the copy might have been left by any other person as well as by the officer making the removal, and his certificate, sworn to in the manner here adopted, would doubtless be sufficient. The usual and proper mode is the one adopted here, where the same person who makes the removal, also leaves the copy, and verifies one fact in the same manner as the other.</p>

This was an action an a receipt for property attached by the plaintiff, as deputy sheriff, on several writs of attachment. At the trial in the county court, the plaintiff having read the receipt and proved a demand of the property, the defendants contended that the action could not be maintained, but that it should have been brought in the name of the sheriff. The court overruled the objection.

This was an action of assumpsit for money paid,laid out and expended, to which the defendants pleaded non assumpsit. The facts appearing at the trial were, that in November, 1822, Joseph Burr loaned to Barnes, one of the defendants, the sum of $300, anc[ t00h a note for tiie same> signed by him, and also by Hitt, th® . ' . J J other defendant, payable in ninety days.

The only question in this case was whether a certain pauper had his legal settlement in Mount Holley or in Shrewsbury. It was admitted to have been in Mount Holly if a certain warning, served on him in Shrewsbury, was legal and sufficient.

Action of covenant on certain articles of agreement, entered into on the 18th day of April, 1808, between the said society and several individuals, of whom the said Samuel Healey was one.

<p>When an attorney, who has been legally admitted to practice, enters an appearance in asuit, his appearance may'be received as evidence ofliis authority to represent a suitor in court, whether a natural or an artificial person.</p>

Tisis was an action of ejectment for a lot of land in Parkerstown in this state, which was pending in the county court for Rut-land county, at the September term, 1827, when it was agreed by the parties that judgment should be rendered for the plaintiff, with stay of execution till a final decision of the Supreme Court upon a case agreed on. Judgment was rendered for the plaintiff accordingly,and the cause removed to this Court for a hearing.

This was an action of debt upon a judgment, rendered by the supreme court of the state of Massachusetts, for the sum of ,f 168,40 damages, and the sum of $47,60 costs of suit. The de--fendant pleaded nil debet, on which issue was joined.

This was an action on the case to recover damages for the default of the defendant, in his office of constable of Danby, in not executing a writ of execution in favor of the plaintiff against William, Hitt and Jonathan F. Barrett of said Danby. Plea, general issue.

Tliis was a trustee process brought by the plaintiff against Jla-ron Leland as trustee of Jlsa Leland, under the act relating to “ absconded or concealed debtors.” In the county court the trustee following disclosure : “ '^■aron who am summoned as trustee in this “ action, do disclose, testify, and say, that on the 20th day of May, “ 1823,1 executed a note as surety for my brother, Jlsa Leland, “to Solomon Willson, jun. for the sum of $■400, on interest, and “ at the same…

<p>This was a writ of attachment in the common form, commanding the officer “ to attach the goods, chattels or estate, of the defendants, to the value of five hundred dollars, and them to notify thereof according to law; and for want thereof to take theft bodies, if to be found within the precincts of the officer, and them safely keep and have to appear,” he. The writ was served on all the defendants by the officer’s delivering to each of them a true and attested copy thereof, with his return thereon.</p> <p>At the trial in the county court the defendants pleaded in abatement, “ That said writ issued as an attachment, with directions to attach the goods, chattels, or estate of the defendants, he. and that no service had ever been made of said writ by attaching any goods, chattels, or estate of the defendants, or by attaching the bodies of the defendants, or any of them.” To this plea the plaintiff demurred. The court adjudged the plea sufficient, and abated the writ. The plaintiff appealed to the Supreme Court for a re hearing.</p> <p>•Mr. Fletcher, for the plaintiffs. — The service was good as a writ of summons, though it may be bad as an attachment to hold a lien upon property or bail.</p> <p>1. The service of an attachment may be bad as such, but good as a summons ; as if copies be incorrect, or none left at the place required by law.</p> <p>2. Service of summons by reading is good, though the law requires that it should be by copy. 1 Swift’s Dig. 589.</p> <p>Mr. Story, jor the defendants. — The statute, yn 64, 65 says “ writs of summons shall be served by deliveringdefendant a copy of the writ,” &c. and when goods or chattels are attached, “ a copy of the attachment, and a list of the property attached, with the officer’s return thereon, shall be delivered to the defendant.” This clearly implies that an attachment cannot be served but by taking some property or body, and in case of property, the object of a copy, and return, and list, is, to shew defendant what property is attached, as well as to give notice of the suit. So is the tenor of the writ, to take the property or body if to be found in the officer’s precincts, and him notify according to law; otherwise, from the nature of the case, to make a non est return. This is a statute regulation, and the court are not authorized to say they will adopt another method of service, which, in their opinion, may answer as well. It would be dangerous in practice and arbitrary, and making law instead of construing law already made, and contrary to all analogy. The decision in 1 Swijtfs Dig. 611, that reading an attachment to defendant is good service to hold him to trial, may afford an argument for plaintiffs, but is probably the only authority to be found. The decision itself is evidence of the danger of deviating from the law, and exercising too great latitude of discretion.</p>

Action of assumpsit on promisory note. — This cause came before the Court on the following bill of exceptions: “ On trial the plaintiff offered in evidence his note and endorsements, which were in the following words and figures; “ $800. — -On demand, for value rec5d, we the subscribers, of Manchester, promise to pay E. Warren, Bro’s & Co. or order* “ eight hundred dollars, with interest.

This was an action of debt on a judgment, recovered in 1822, The defendant pleaded in bar payment and satisfaction in full since the commencement of the present action. This plea was traversed, and the issue joined to the jury.

<p>This was an action of trespass for taking and carrying away a pair of two-year-old steers. It was commenced before a justice of the peace, and was brought into the county court by appeal. Jugdment was there rendered for the plaintiff on a case agreed to by the parties. The defendant excepted to the decision, and removed the cause to this Court for a revision of the judgment.— The case thus agreed on is as follows i</p> <p>^Samuel Chase, father to the plaintiff, in the year 1825, was bankrupt and poor; and he ever since has been, and now is, a poor man, and unable to pay his debts. In that year, he sold to his son, the present plaintiff, his time, (he being then a minor) until he should arrive at the age of 21 years, (being about three years) for sixteen dollars a year. After this, the said Joseph worked on his own account as a hired man, and received and controuled his own wages; and his father exercised no controul over said Joseph, or his property. About one year before said Joseph came of age, he paid his father, according to contract, out of the avails of his labour which he earned after he bought his time of his father; after which he laboured for one Thos. Johnson, Jr. of Baih, in the state of JYew-Hampshire, in the last yearof his minority j and out of the avails of that labor said Joseph bought the steer? in question. Said steers were driven to the town of Jay, in Vermont, to Samuel Chase, father of said Joseph, and lent to him ; who worked them and kept them until taken away by the defendant. On the 21st day of March, 1828, the defendant, being a legal deputy sheriff, attached said steers on a writ duly issued, and returnable before Samuel Heath, justice of the peace, founded on a note, signed by said Samuel, and dar ted the 20th day of September, 1825 ; which writ was duly returned, judgment rendered thereon, and execution issued in due form of law, levied upon said steers, ancf they were sold thereon in due form of law. Now it is agreed by the parties, that, if the law arising upon these facts entitles the plaintiff to recover, judgment shall be entered for $14,00 damages,and his costs. If otherwise, then judgment to be entered for the defendant that he recover his costs.”</p> <p>The plaintiff's counsel argued, That the plaintiff is entitled to judgment upon these facts. The father has a right to sell or give to his minor son his time, or a right to his future earnings. He may think this to be the best for the son, and for the family. He may have no business in which to employ the son to any advantage ; and it may be altogether prudent to encourage his son to be faithful and industrious, by giving him his earnings, or a portion of them. If he has not this right, and the creditor can hold this properly against the plaintiff, it would virtually render the children bond-slaves to their father’s creditors ; and entail the poverty of the father upon the children, in all its discouraging and depressing circumstances.</p> <p>It is even probable, that the sixteen dollars .a year, which the son paid to his father for three years, exceedec%ny thing he could have earned for his father in his appropriate business. And there seems no probability, that, amidst such poverty ofthe father, any earnings of the son for the father would ever have accumulated to an amount liable to attachments lor the father’s debts.</p> <p>Argument for the defendant. — 1st. The contract between the father and son, for the son’s emancipation, was void. It was not fpr necessaries. It is against the policy of the law to encourage or confirm such contracts. The law does not emancipate until twenty one years.</p> <p>2d. It was a fraud upon the creditors of Samuel Chase ; for the father is entitled to the earnings of the son while a minor.</p> <p>3d. The father had possessed himself of the property, and was using and improving it as his own, at the time it was attached, and the legal interest vesting in the said Samuel, and in his possession, the attachment will enure to the benefit of the attaching creditor.</p> <p>4th. The father could not have given the steers to the son to the prejudice of the creditor.</p> <p>5th. The debt was due at the time of contract for the emancipation of the son.</p>

Ilapgood, the executor, procured a probate of the will of the deceased, in the fall of 1807, in the state oí Massachusetts, where the familyof the deceased lived; Grout, himself, having been a considerable time in Lunenburgh, in the probate district of Essex, where he claimed to own, and had the care of, a great many rights of wild land.

This was an action of trespass for a waggon, brought before a justice of the pesce, and appealed to the county court; and there tried, and exceptions taken to decisions of the court, upon which ¡the action was removed to this court. . It appears, by the case allowed, that there was testimony adduced on trial tending to show, that the .defendant brought with him the waggon in question into Hydepark,. and there used it as his own several years.

This was an action of trespass and false imprisonment. The defendant pleaded the general issue and a special plea justifying under a writ of attachment in favor of the defendant against the plaintiff and one Mouse, served by one James Corey, by virtue of a deputation to him from the justice who signed the writ.

<p>That the plaintiff in ejectment, on showing himself to be a proprietor in town, need not show a division, till the defendant,also,shows an interest which maltes him tenant in common with the plaintiff.</p> <p>That the clerk’s certificate of the allowance of the committee’s accounts, is not evi« dence. The copy of the record must be produced.</p> <p>That the records of the advertisements in road taxes are not evidence, unless they contain all the particulars required by the statute.</p> <p>That the collector must give bond before he advertises his sales, or the same will be invalid.</p>

This was a case of audita querela tried before the county court, April term, 1829, wherein the plaintiff prayed that a certain judgment, rendered against him by a justice of the peace, in favor of the said Sylvanus Bates,might be set aside.

This was an action of debt on a jail bond. It was tried in the county court, September term, 1S26, on a case agreed to by the parties, and a judgment rendered for the defendant. It appears by the case That the plaintiff resided in the state of Ohio, and the defendant, II.

This was an action of covenant, founded on a deed dated July 4th, 1807, by which the defendant conveyed to the plaintiff certain lands in Concord, and covenanted, amongst other things, that he was seized of an indefeasible estate in fee simple. At the county court a verdict was taken for the plaintiff by agreement of parties, and the cause was removed to this court on a case stated and agreed to by them.

This was an action of ejectment, for the recovery of a certain tract or parcel of land in Morristown.

This was an appeal from a decree of the judge of probate for the district of Manchester, assigning a guardian over the appellant, by virtue of the statute authorizing a judge of probate, “ on the request of any friend or relation of any idiot, non compos, lunatic or distracted person, residing in such district, to issue a commission to the select men and civil authority of the town, in which such person resides, to make inquisition in the premises j and if said person shall…

This was an action of trespass for taking and carrying away one brass time piece, and one tub of butter, made from the milk of the defendant’s only cow, containing 40 lbs. The defendant admitted the taking and carrying away, but justified under the levy of an execution. The only question raised at the trial was, whether the property was exempt from execution.

<p>A promise made to an officer who had arrested a debtor on an execution, that if the qfiicer would suffer the debtor to go at large, he, the promisor, would have the debtor forthcoming to be committed in the life of the execution, is without legal consideration and void.</p>

This was an action of ejectment to recover the possession of a piece of land in Essex, which is part of lot no. 100, and was particularly described in the declaration by courses and distances, without naming any monument except at the starting point.

This bill was brought to foreclose the equity of redemption upon a mortgage, executed by Hurlburt on the 15th. day of Octo-Ij^r, 1821, to the plaintiff, conditioned for the payment of a note, bearing date the same day, for the sum of $600. After the execution of the mortgage and before the filing of the bill, Hurlburt, for a valuable consideration, conveyed the mortgaged premises to Holmes.

The substance of the orator’s bill of compkint, so far as it relates to the points litigated and decided, was, That the orator received from Isaac Higbee, in the year 1819, a warranty deed of about thirty acres of land, in the town of St. George, and gave his notes for the same, amounting to $288 ; that, soon after this conveyance, said Isaac, with the consent of the orator, commenced an action of ejectment, in the name of the orator, against Lewis Higbee for said land, on…

This was a motion to amend the record of a judgment rendered by this Court at a former term.

This was an action of booh debt originally brought against th a defendant, Higgins, and one Twitchell, as partners.

This was an appeal from an allowance of commissioners in favor of the estate of JYathaniel Stearns. The administrator having filed a declaration on book account against the appellant, auditors were appointed to adjust the accounts of the parties, and a report was afterwards made thereon to the county court, in which they reported a balance due to the estate of Stearns of two hundred and eight dollars and eighty-three cents.

<p>The vendee having purchased anumber sheep which were in the possession and keeping of B, requested B, to whom h^liave notice of the purchase, to act for him in selecting the sheep, and to take a del/pry of, and keep, them for him ; to which B assented ; and a short time afterwards 1 selection was made under the purchase, and the sheep delivered by the vendor to B, who marked them with the initials of the vendee’s name, and kept them for him in the same situation as before, until they were attached by a creditor of the vendor. It was held that such sale and delivery of possession was sufficient, and the attaching creditor was held to be liable to the vendee in an action of trespass.</p>

This was an action of trespass. It was tried in the county court on the general issue, and was brought into this court by a bill of exceptions agreed to by the parties; from which it appeared, that on trial of the issue, the plaintiff proved the following facts viz : That the proprietors of the town of Bridport did, previous to making their fourth division, set apart by vote a certain tract of land as a common for certain public purposes as expressed by their vote, and then…

This was an action that came up from the county court on the following exceptions allowed on trial: “ This was an action of trover for sundry articles of property. Plea, not guilty, with notice. The action was against Abbott and Moses Bliss ; and judgment had, at a previous term, been rendered against Bliss and in favor of Abbott 5 and had been reviewed by the plaintiff, as against Abbott.

This cause came up from the county court to be re-examined upon the following case agreed to by the parties : “ Case against defendant, as constable of Iiinesburgh, for neglecting to levy an execution, in favor of plaintiffs, upon property attached by him, at the suit of the plaintiffs. Plea, not guilty.

This was an action of assumpsit, brought by the plaintiffs to recover the assessments on ten shares of stock, which the plaintiffs alleged the defendant had subscribed. The defendant pleaded non assumpsit. On trial the plaintiffs introduced a certified copy of the act incorporating the said company, which was read to the jury.

<p>That the Court will grant anew trial, on terms, where a good defence appears, though not made in strict season; said defence depending upon the result of a controversy with a third person,</p>

David Hoar, a prisoner in the common jail in the county of Franklin, was confined in prison by virtue of an execution, issued on judgment tendered by the county court in said county, at the term thereof holden in April, 1 828, in an action of trespass, at the suit of Stephen Davis.

This was an action of trespass for taking and carrying away a certain instrument or apparatus for spinning and manufacturing cloth, called a Billy and Jenny, to which the defendant pleaded the general issue, with notice of his having caused the said spinning instrument or apparatus to be attached at his suit on a writ of attachment against the said Alphonzo Kilburn, returnable &c. The issue was by agreement of parties set to the court for trial.

This was a -writ of audita querela, stating that, “ on the first day of October, 1827, William R. Webber, by his natural guardian, Aaron Webber, prayed out a writ of attachment in his fa-vour against the said Hollis Hastings, dated the day and year last aforesaid, signed by Urial Smith, justice peace within and for said county of Franklin, demanding eighty dollars damages, returnable before said justice Smith, on the third Tuesday of October, 1827, in and by which the said…

This was an action of ejectment for lands in Sheldon. Plea, general issue. The plaintiff claimed fhe land by virtue of a lease from Adams Stevens to him, to run as long as wood grows and water runs; said Martin to support said Adams and his wife during their lives.

This was an action of assumpsit on an award of arbitrators, made in pursuance of a parol submission by the plaintiff and defendant of all difficulties, demands, and claims ; which award was made and published by the arbitrators on the 8th day of February, 1827. Plea, non assumpsit, and also a plea in offset for money paid, laid out and expended by the defendant for the plaintiff, on the first day of January, 1826.

This was an action of debt upon judgment; to which several pleas in bar were pleaded, and to these special replications, and the issues were joined to the court. The county court decided the cause in favor of the plaintiffs, and their decision, and the-grounds of it, were placed upon the record in the form of a bill of exceptions, certified by the judges, and brought to this court for a revision of their decision.

This was an action of trespass for taking the plaintiff’s cow.— The defendant pleaded the general issue, and also a special plea in bar.

This was an action of trespass on the case for written slander, and was now heard upon exceptions to the judgement of the county court, allowing the plaintiff to tax full costs. On the first trial, the plaintiff recovered $250 00 damages, and the defendant reviewed the causo ; on the second trial the defendant had a verdict in his favor, and the plaintiff reviewed ; on the final trial the plaintiff recovered a verdict and judgement for one cent damages and his costs.

This was an appeal from the order of two justices, removing Mel Hubbard, jr. a pauper, from Middletown to Poultney, and was brought here upon exceptions taken by the plaintiffs to the decision of the county court upon the jury trial.

This was an appeal from the decision of the court of probate, allowing the account of the defendant, which accrued in the settlement of the estate of the deceased. The accounts before the judge of probate, consisting of many items, showed in the hands of the administrator property to the amount of $9985 10; and the various items allowed the administrator amounted to ‡4520 99 : leaving in his hands a balance of $5464 11.

This was an action of debt upon a bond, in the penal sum of $1500, dated May 5 th, 1823, and conditioned to be void, if the defendants should well and truly indemnify, and save harmless, the said town of Pawlet, from all charges, expenses, &.C., of every nature, for the maintenance of Rufus Baker and Sybil Baker, his wife, and Sally Baker, daughter of the said Rufus and Sybil, who were parents of the said Chester Baker, during the natural lives of the said Rufus, Sybil and…

This acitiori was tried in the county court, and came up to this Court on the following bill of exceptions allowed at the trial. “ The plaintiff declares, that on the 19th day of May, 1828) the defendant, in consideration, that the plaintiff would assign all the right of the plaintiff in interest in án execution in favor of Charles K. ÍVüliams vs. Jesse Gove, issued on a judgment, recovered before the Rutland county Court, April tertli, 1828, agreed|tO and with the…

Said Conant commenced his action on book account against Skinner and Bulkely, before a justice of the peace, and the action was appealed to the county court, and there committed to auditors, who made their report of a balance in favor of said Co-nant, which report was accepted, after a hearing upon exceptions filed by Skinner and Bulkely, and a judgement, thereon rendered by said county court at their term holden in said county, in April, 1829.

This was ejectment for. lands in the town of Chittenden, belonging to the right of Publius H. Booge, under whom the plaintiffs claimed title.

<p>Tiiat a discharge from execution upon a habeas corpus, predicated upon the debtor’s being privileged from arrest by his attendance on court at the time, is no bar to his being afterwards arrested, upon a new execution upon the same judgment.</p>

<p>This was an action of ejectment for lands in Pownal. It was originally brought against Bannister and one Joseph Miers.— Miers filed a disclaimer, on which an issue was joined, and having had two verdicts in his favor, he was left out of the action. On the last trial between ‘Stanton and Bannister, the former recovered, and exceptions were allowed, on which the cause was brought up to the Supreme Court.</p> <p>'The plaintiff claimed title by virtue of the levy of an » « . , , ^ „ ( , in his favor against Bannister. The title of Bannister was in right of his wife, being a portion set off to her before marriage of the estate of Ephraim, Mann deceased; The record of thé plaintiff’s judgement, execution and levy, were read to the jury without objection. The plaintiff then offered a transcript of thé record of the court of probate, showing a division of the real estate of said Mann, among his heirs, made by a committee, and assigning the premises in question to Tryphosa Mann, now the Wife of said Bannister ; accompanied with a writing, not under seal, but signed by all the heirs, agreeing to the said division.— This was objected to, but admitted-.</p> <p>The plaintiff then produced and read the record of the marriage of Bannister and said Tryphosa.</p> <p>The plaintiff also adduced testimony to prove Bannister in possession of the premises, at the time of the commencement of this action;</p> <p>The defendant then read to thé jury a deed of said premise's from Bannister to one Comfort Mann.</p> <p>The plaintiff then read to the jury a deed from said Comfort Mann to one Nathan Jewett-, and a deed from said Jewett to Comfort Mann-, and a deed from Comfort Mann to said Joseph -Miers-, all conveying the same premises. The plaintiff also introduced testimony tending to show said deeds to be fraudulent and void.</p> <p>The exceptions showed a request of defendant’s counsel for thé court to charge in defendant’s favor upon several points relating tti the defects in the levy, and defects in the division, shown, among the heirs of Ephraim Mann. The court did not so chargé as requested by the defendant’s counsel; but did instruct the jury, that, if they found from the evidence the above deeds to be fraudulent, the plaintiff would be entitled to recover; and further, that, as the record of said levy was admitted and read to the jury, without objection, it was to be received as testimony» Upon a detailed statement of facts, of which the foregoing is a summary, the cause was argued before the Supreme Court.</p> <p>Argument for the defendant. — I. It is contended by the defendant, that the division read in evidence to the jury ought to have been excluded. Before the division became proper evidence it should have been shown, 1. That a division of the estate of Ephraim Mann, deceased, had been ordered by the probate court. 2. That the committee were legally appointed by the court of probate. 3. That a legal warrant issued to said committee. 4. That said committee were sworn. 5. That their return was recorded in the town clerk’s office in Pownal. — Stat-1797, sec. 41, p. 135. — 1 D. Chip. 357, ex parte Robinson a%"</p> <p>The agreement of the heirs of Ephraim Mann to the division does not make it legal and valid ; because 1. Said agreement was not under seal. 2. It was not duly acknowledged by the parties. 3. It was not recorded in the town clerk’s office in Pow~ nal. — Prob. stat. 1797, sec. 41. — Swift's. Ev. 5.</p> <p>The court of probate is of limited jurisdiction. It derives its powers from the statute, and must strictly conform to the statute. •— Clapp vs. Beardsley, 1 Aik. Rep. 168. — 17 Mass. Rep. 91.</p> <p>JL. The levy of the execution, shown in evidence by the plaintiff,is void. — Eddy vs. Knapp, 2 Mass. Rep. 154. — Tate et al. vs. Anderson, 9 Id. 92. — Whitman vs. Tyler,8 Id. 284.— Williams vs. Amory, 14 Id. 20. — Me Lellan vs. Whitney, 15 Id. 137.— Paine vs. Webster et al, 1 Vt. Rep. 129. — Fox vs. Hills, 1 Con. Rep. 295. — It appears by the levy shown in evidence, 1. That the plaintiff chose one of the appraisers, and the plaintiff’s attorney called on a justice of the peace, and said justice chose two other appraisers. 2. It does not appear by the levy, that said justice could by law judge between the parties in civil actions.— Stat.p. 210. — 3. It does not appear by the levy that either party neglected or refused to choose appraisers. The court ought to have charged the jury that the levy was void. — Arms vs. Burt, 1 Vt. Rep. 313. — Fox vs. Hills, 1 Con. Rep. 295. — Hinman vs. Leavemmrih, 2 Con. Rep. 244.</p> <p>III. It was the duty of the court to charge the jury as to the legal effect of the evidence given on the trial, tending to show the interest which Cranmer Bannister had in the premises claimed by the plaintiff. — Fletcher vs. Howard, 2 Athens' Rep. 117.— Washburn vs. Tracy, 2 Chip. 136. The plaintiff declared for a life estate,but it does not appear,that the requisites of a tenancy by the curtesy, or any other life estate, was shown in testimony to the jury. — 2 Bla. Com. 120, 127. — Probate Act, 1797, sec. 61. Bannister, by the marriage, acquired only a usufruct of the wife’s estate. — Reeve's Bom. R. 32. — 1 Swift's Dig. 26. The levy of the execution is void, as the appraisers considered the interest of Bannister in the premises greater than it was in fact. — Paine vs. Webster et al. 1 Vt. Rep. 133. If the plaintiff shewed any estate in the wife of C. Bannister, it was an estate in common with her brothers and sisters. — Starr vs. Leavitt, 2 Con. Rep. 249, — do. 244, Hinman vs. Leavenworth. The levy was, therefore, void, being by metes and bounds, and not of an undivided part. — Porter vs. Hill, 9 Mass. Rep. 34.</p> <p>Argument for the plaintiff. — -The principal question, in this case, arises on the admission of the record of the commissioners, setting off to Tryphosa Mann the real estate, for which this action is brought. It is admitted by the case, that the premises in question were a part of the estate of Ephraim Mann, deceased. The record was offered to shew, that Tryphosa Mann, before her marriage, held the premises in severalty, and not as a tenant in common; for her interest was a tenancy in common with the other heirs,until the division. If the record tend to establish the fact, it was properly admitted, and it is believed that the fact is established by the record in three different methods, each of which is sufficient to sustain the verdict»</p> <p>1. The record shews a substantial compliance with the statute of 1797, (page 135.J The existence of the warrant, that the committee were sworn, made a division of the estate, and duly made return of their proceedings under their signatures, and that the same was allowed and recorded by the probate court, are ■sufficiently made to appear,</p> <p>2. The agreement signed by the heirs is sufficient to establish the right in severalty of Tryphosa Mann. It is conclusive ■among the heirs, and will dispense with the introduction of other testimony : although not sealed, a court of equity will carry it into ■effect. — 2 Stuff’s Dig. 93»</p> <p>3. The division and agreement will give her a right in severalty upon common law principles, independent qf the statute. If the heirs held as tenants in common before the division, their interest as such tenants was susceptible of a legal division by parol. The case states the division to have been made in the year 1811, and that the defendantwas in possession of the premises divided and set off to them, at the time of the commencement of this suit. This division and possession will give her an absolute title in severalty; But, whatever may be the rule that would be adopted if the question arose among the heirs, upon an application by them for another division of the estate, still, as it appears, that the heirs acquiesce in the division, this objection cannot be urged by one of them, in a suit brought by their creditor to recover their interest in the premises. Again, if that division did not create an interest in severalty, and if they still are to be considered as tenants In common, the verdict will be sustained ; for the levy will certainly hold what interest the defendant had in the premises, and the verdict, will be amended accordingly, without granting a new trial. 1 Ver. Rep. 133,Paine vs. Webster et al. — 14 Mass. Rep.404, ¿Meins vs. Bean et al. — 2 ¿Likens’ Rep. 144, Warren vs. Hen-shaw, adr. — 1 Con. Rep. 470, Hitchcock vs. Hotchkiss.</p> <p>The next and only question presented in the case, arises upon a charge as given by the court to the jury. It is here to be observed that the record of the judgment, execution and levy, are not made a part of the case ; and the Court cannot decide upon any fact, but what appears in the exceptions. Nothing appears in the case impeaching the levy, and unless the party making the exceptions sees that the facts are all stated that are necessary, the verdict will be affirmed. — 2 ¿Likens’ Rep. 27, Stearns vs. Warren. But, if the levy was a part of the case, as it was read to the jury by agreement and consent, the charge of the court was correct, “ that it was to be received by them as testimony.” The court was not called upon by the counsel to decide upon a question of law, but to charge the jury, that such facts did, or did not, appear in the levy. Again, the objections made were such as the jury could not take into consideration, but should have been urged to the court against reading the execution and levy to the jury. Those objections having been waived by agreement, and the testimony read, it is a waiver of all objections that can be urged against the verdict. The levy contains a substantial compliance with the statute, sufficient, at least, as against the defendant.— 1 Ver. Rep. 101, Paine vs. Webster, et. als.</p> <p>After the arguments were through,the court suggested, that they could decide nothing about the levy, as it was not in the case, nor in any way laid before the court: nor about the time when the court were requested to instruct the jury with regard to the levy. In consequence of these suggestions the parties procured the judges of the county court, who were present, to attach to said bill of exceptions, the following addition, as an amendment, or correction, to wit:</p> <p>“ The record of the levy to be a part of the case. There was no question made, as to the validity of the levy, in the argument of the cause to the jury; nor were the court requested, by the counsel for the defendant, to charge as to the levy, till after the judge had charged, and submitted the cause to the jury. And, lor that reason, the court neglected to charge upon that point.” :</p>

The plaintiff declared in a “ plea of trespass, for that the defendant, heretofore, to wit, on the 17th day of February, A. D. 1829, at Manchester, aforesaid, with force and arms, in and upon the plaintiff made an assault, and him then and there, with clubs, fists and feet, beat, bruised, wounded and ill treated ; him the plaintiff then and there threw with great violence upon the ground, and him, then and there lying upon the ground, did cruelly kick, beat and wound : by…

This was an indictment for erecting a building on a place called the square in the village of St. Albans. The bill contained two' counts.

<p>This was ’an action of general indebitatus assumpsit, brought by Jeremiah Austin, of Fairfax, in said county, against Josiah Grout of said Fairfax, as the trustee of Wyatt Palmer.</p> <p>The defendant, Palmer, pleaded in abatement to the plaintiff’s Writ and declaration, Thatat the time of the commencement of the action, he was not an absconding or concealed debtor, within the meaning of the statute. Replication, — That the said Palmer was an absconding or concealed debtor at the time said action was commenced, within the meaning of the statute. Issue was joined to the court.</p> <p>It appeared in evidence on trial of the above issue, that said Wyatt Palmer, for a number of years previous to the time when the debt in question was contracted, and ever since that time, had constantly resided with his family in the western part of the state of New York — that in the year 1814 or 1815, he came to Fair-fax, in this county to transact some business with a Mr. Stark•* weather, who resided there, and that he staid in Fairfax three or four weeks, and then returned home. He afterwards twice visit» ed Fairfax on business,, the last time was in the year 1818. At each time he staid a few days only, and then returned back to the place of his residence. There wa3 no evidence that he ever resided in the state of Vermont, or that he ever was in the state excepting as abovementioned, and once in April 1828 to attend to the present suit. In March,, 1819, the son of Wyatt Palmer came to Fairfax, and by virtue of a power of attorney contracted the debt in question. It also appeared, that at the time the said Wyatt Palmer first visited Fairfax as aforesaid, and ever since that time, he had constantly resided with his family in the state of JVew Yorlc, and still resided there. It appeared that the trustee resided in Fairfax, in this county ; that the deht was contracted there, and that the trustee had assets]] in his hands. The action was commenced at April term, 1826.</p> <p>On this evidence the court decided that the said Wyatt Palmer, at the time of the commencement of this suit, was an absconding or concealed debtor, within the meaning of the statute, and that the said writ ought not to abate. To which decision of the court the said Palmer excepted,and moved that the que stion of law arising from the foregoing statement of facts proved on trial,, pass to the Supreme Court for their decision thereon.</p> <p>The general issue was then pleaded to the said action by the said Palmer, and issue was joined thereon to the court. Or which issue the cause was tried by the court, and judgment was rendered thereon for the plaintiff to recover of the said Palmer the sum of $667 22.</p> <p>The cause having been removed to this court, it now came on to be heard on the questions of law arising from the foregoing facts.</p> <p>Argument for the defendant, Palmer. — 1. It does not appear from the case that Wyatt Palmer was ever an inhabitant of this state, or that he ever secretly absconded from this state, or has kept concealed within the same, and, therefore, cannot be sued in, a trustee action. — Statutes, 149 and 156.</p> <p>2. A person who has been transiently within the state, but has never resided here, is not an absconding or concealed debtor within the moaning of the statute, and eannot be proceeded against in the manner contemplated by the act. — 2 Caines’ Rep. 318.</p> <p>3. If the act in question be construed to extend to the defendant in this case, it might with equal propriety be construed to extend to a person who was never in the state ; for the mere act of coming into the state, and departing out of it, in the manner Palmer did, will not make him an absconding or concealed debtor within the meaning of the act.</p> <p>4. Great mischief would result from such a construction of the act, as is contended for in this case, and, therefore, it is not to •be supposed that the legislature intended it should receive such a construction.</p> <p>Plaintiff’s counsel, contra, contended that the said Palmer was an absconding or concealed debtor within the meaning of the statute, inasmuch as the -debt was contracted in this state, and the •defendant had assets in the hands of the trustee ; and cited Gris-wold vs. Bell, trustee of Robinson, decided in Chittenden county, January, 1-827.</p>

This was an action of assumpsit on a promisory note, commenced before a justice of the peace, and was brought into the county court by appeal» The court, by agreement of parties, referred the cause and all matters in dispute to three referees, the report of whom, or a major part of them,was to be final between the parties.

This action was brought originally before a justice of the peace, and appealed to the county court.

This was an action on the case, against tbe defendant's, complaining of their proceedings as listers of tbe town of Chester, in 1823.

This was an action brought upon one of four promissory notes, of twenty-five dollars each, executed by Arad Radway, as principal, and said Martha, while sole,as surety.' The cause was tried in the county court, on the following statement of facts agreed to by the parties : That on the first day of June, 1822, Arad Radway, one of the signers of the note in question, was arrested on the complaint of JYabby Joy, the payee of said note, charging him with having begotten her with…

This was action oj trespass on the case, brought to recover a penally for attempting forcibly to pass a turnpike gate without paying toll. A verdict and judgement passed for the defendant in the county court, and the cause came here upon exceptions taken by the plaintiffs for a misdirection to the jury. The act incorporating the Green Mountain Turnpike Com-1 pany has two provisions upon which the merits of this case depended.

This was an action of debt on jail bond, brought in the name of the administrator of a deceased sheriff for the benefit of the judgement creditor.

<p>When an appeal is granted in á case where no .appeal, is given by law, or the appeal is irregularly or informally taken, and is dismissed by the appellate court, the dismissal annuls the appeal, ab initio, and leaves the judgement in force, and execution may issue upon it as if no appeal had been taken.</p> <p>The adjudication of the county court dismissing an appeal to it from ¿judgement rendered by a justice of tire peace, is conclusive until reversed on a writ of error, or on removal of the cause to the Supreme Court.</p>

This was an action on the case, against the defendant, as sheriff of Windsor county, for neglect of his deputy to keep certain property attached on mesne process. The parties agreed to the fol-Ing statement of facts in the case, upon which the county court, rendered judgement in favor of the plaintiff. The defendant excepted to the decision, and the case was reserved for the opinion of the Supreme Court. “ On or about the 26th of June, 1828, James Brecle, William.

<p>That the service of a petition and citation must not be made after sunset Saturday evening.</p> <p>That if it is so served, it will abate.</p> <p>But the Court can, in some cases, abate the citation and retain the petition, and make an order of notice.</p>

<p>Ejectment for a tract of land in Addison, brought here upon exceptions taken by the defendant at the trial in the county court.</p> <p>The plaintiffs claimed title under a mortgage deed executed by the defendant to the intestate on the 1st of November, A.D. 1826. The condition of the deed recited, that on the 8th day of January, A.D. 1825, the intestate executed to Apollos Austin, with, and as surety»,for, the defendant and two other persons, a promissory note of that date, for the sum of $400, and payable in one year from date. It then provided, that if the defendant should well and truly pay, or cause to be paid to said Austin the note aforesaid, “ so as wholly to indemnify and save harmless the “ said Sylvester from his liability on said note, by reason of his “ signing the same as surety as aforesaid,” then said deed was to become void, but otherwise to remain in force. To show a breach of this condition the plaintiffs proved, that in the fall of A. D. 1827 the intestate died, and the administration of his estate was thereupon granted to them ; that they represented the estate insolvent, and commissioners were appointed to receive and allow the claims of creditors ; that Austin presented the note aforesaid, which was allowed against the estate on the 12th day of May, A, D. 1828, and that the doings of the commissioners were duly reported to the probate court, and there accepted and allowed. As evidence of payment of this demand to Austin, the plaintiffs showed the note aforesaid at the trial, in the hands of their attorney, with the following words written thereon :</p> <p>“ Rec’d the contents of these notes of II. Brevoort, (one of the plaintiffs.,) “ A. Austin.”</p> <p>No other evidence of payment was given, nor was the signature of Austin to the receipt aforesaid proved. The defendant insisted that these facts were not sufficient to work a forfeiture of the condition ; but the county court decided otherwise, and gave judgement for the plaintiffs. The defendant filed exceptions which were passed to this court for a hearing and decision thereon.</p> <p>Woodbridge, for the defendant, contended, That the mere liability of the intestate to be sued upon the note, and the allowance of the same against his estate, gave no cause of action upon contract of the defendant, and were not sufficient to work a breach of the condition. — 1 Swift’s Dig. 413. — 2 pon. Rep. 244. He also insisted that the possession of the note by the attorney of the plaintiff, with a pretended receipt of payment upon it, but without any proof of actual payment, or of the execution of said receipt by Austin, was not evidence from which a payment of the debt could be presumed. — 3 Stark. Ev. 1384. And that the receipt, if duly proved, did not show a payment by the plaintiffs as administrators, but rather imported a purchase of the claim by H Brevoort, in his individual capacity.</p> <p>Hawley, for the plaintiffs,insisted, That this was not like a common contract of indemnity. The condition of the deed expressly provided against the liability of the intestate, and not merely against his ultimate loss or injury. It was therefore necessar3r, in order to save the condition, that the defendant should have paid the note immediately, or at least within a short and reasonable time. He also contended that the defendant, by suffering the demand to come against the estate, and be allowed, had clearly violated the condition, as inconvenience and additional expense were thereby thrown upon the estate. And that the evidence of payment in this case was sufficient, for that it would be at least ■prima facie evidence against Austin himself.</p>

Ejectment for 74 acres of land in Salisbury, to which both parties claimed title under the Vermont Glass Factory Company. The plaintiff gave in evidence the record of a judgement, execution, and levy upon the premises, in favor of Simeon Hyde against said company, perfected in September, A. D. 1819, anda deed from Hyde to himself, dated September, 26, 1821.

<p>Error to reverse a judgment oí Addison county court, rendered upon the report of auditors. The defendant in error brought his action on book account against the plaintiff in error, and the auditors reported, in substance, that the account of the plaintiff in that action consisted of services rendered as a justice of the peace, commencing in A. D. 1817, and ending in k. Í). 1827; that in 1819 said services Imountecíto about $ 130, 'ón account of which the defendant had then paid in professional services and otherwise about $37 ; that from the latter period until the dealings] of the parties were discontinued, the defendant was also a magistrate and performed services as srich for the plaintiff j during which time the services of the plaintiff for the defendant amóurited to about $100, and thósé of the defendant for the plaintiff to about $115 ; that the parties béing sworn, the defendant testified, that immediately preceding the commencement of mutual accounts for services, as aforesaid, in 1819, it was verbally ágfeed betweén himself and the plaintiff, that they should éxcharige services as magistrates, and that neither should demand payment for his Services, except in lik'e services tó be rendered by the óthe’r, ahd that the balance theri due the plaintiff was ex1 pressly included in this agreement; that they acted tinder the agreement só lóng as the serv'icés ón either sidé were continu1 éd ; that he had never waived the contract, and that he claimed the bénefit of it in défericé tó the actióri — That the plaintiff did riot admit the existence of the agreement, but testified to his want of recollection and disbelief, for séveral reasons assigned, (as that he had supposéd he had a right tó exact money for the balance of the a'ccoúrit,and hád nevér made such a contract with arty other lawyer* though he had excháriged services as a magistrate With Several* &cc.) that such agreement was evét made. It also appeared by the report, that the parties accidentally fell intó a dispute as to thé fact of such an'agreement, whereupon the plaintiff demanded á settlement, and Soon after brought his a'ctiori.</p> <p>The auditors further reported, that they considered the par1 ties respectively entitled to full and equal credit, but that, in their opinion, the testimony of a party defendant was not sufficient tó prove a contract of this description, when opposed by testimony of the party plaintiff to the effect aforesaid. They, thérefói’é,found düé tó the plaintiff the sum of $81 23, as the balancé of the accounts* and also gave as interest thereon, from October 1, 1820* to Juries l, 1828, the sum of $37 36. The defendant filed exceptions tb the report of the auditors, as well for their decision upon the legal effect Of the testimony given, as for thé allowance of interest upon the accodnt; but the same was accepted by the county court* and final judgemerit being rendered thereon, this writ of error was brought, and the common error assigned.</p> <p>The causé was now argued by the parties in person Upon thé tWo points raised by the exceptions below • but as the'Court considered the right of recovery to rest upon á different ground, the arguments are omitted.</p>

Jlssunypsit upon a promissory note, and tried in the county court upon the general issue.

This was ejectment f°r a Part of lot No. 66, in the fourth division in Middlesex. The seisin of the plaintiff was laid on the Í 6th, and the ouster on the 20th day of July, A. D. 1828.

This was an indictment for not making and opening a newly laid road through said town. The papers presented to the Court were too voluminous to admit of publication. The points of arjy considerable importance are selected, and the arguments upon those points presented. There was a jury trial in the county court, and exceptions allowed. The verdict was against the town.

This was an action of trespass for taking and carrying away a chaise, in which the jury found a verdict for' the defendant, and was brought before this Court on exceptions filed by the plaintiff to the opinion of the court below.

This was an audita querela, in which the plaintiff alleged that he brought an action against the defendant on book, before a justice of the peace, demanding ten dollars damages; that a jury was impanneiled to try the cause, who returned a verdict that the defendant did not assume and promise ; that the plaintiff objected to the verdict and moved the justice to set it aside, on the ground that it did not find the issue between the parties; that the justice decided not to…

This was an action for slanderous words spoken by the wife. On the issue joined between the parties, the jury returned a ver^ diet for the plaintiff for the sum of $84 damages. The defendant reviewed the cause, and at the next term the plaintiff recovered one cent damages only. The plaintiff claimed full costs, but the court decided he was entitled to no more costs than damages, and rendered judgement for the plaintiff for one cent damages and one cent cost.

This was an appeal from an order of removal made by two justices for the county of Orange, on the 18th November, 1828, lor the removal of the paupers, Richard Skinner, Rachana, his wife, and Electa, their infant daughter, from Strafford to Hart-land. Hartland was served with a copy of the record of the order, some short time before the setting of the county court, for the county of Orange, December term, 1828.

<p>T-hat an account against a plaintiff may be filed in offset against an account in his favor as survivingpartner, when it does not appear that the partnership creditors havo any lien upon the balance of the plaintiff’s account.</p>

<p>Motion for a new trial.</p>

The hearing this term was upon the prayer for an injunction upon the suit at law; also upon exceptions to the report of referees, made in said suit at law. This action was debt upon a judgement of the superior court of JYew-Hampshire. It was referred by the agreement of parties at the last term, and their report was now returned into court. They have reported in favor of the plaintiffs,for the amount of the judgement declared upon, and interest on the same.

This was an appeal, taken by Jesse Hugh, a creditor of the deceased, from the decree of the probate court, allowing the account of said administratrix. The appellee filed her regular motion to dismiss the appeal, as being irregularly taken. A number of reasons were stated in the motion, why the appeal should be dismissed.

Benjamin Proctor brought his action of assumpsit against Joshua Sawyer, and Sawyer filed his declaration on book against Proctor, pursuant to the 93d section of the statute. Judgement to account was rendered, arid the account was sent to an auditor, who reported a balance due to Sawyer of $208,59 ; and made a special report, und transmitted a copy of the account.