Volume 20 — Vermont Reports

<p>In an indictment against one for endeavoring to prevent a witness, recognized to appear and testify before the grand jury, from appearing and testifying, the indictment in the original case, in which the witness was recognized to appear, need not he recited; nor does the gnilt or innocence of the respondent depend upon the sufficiency of that indictment, or upon the guilt, or innocence, of the respondent in that case.</p> <p>The attempt, whether successful, or not, to obstruct the due administration of justice, by preventing the attendance of witnesses upon the trial of a case, is a substantive offence, punishable by the common law.</p> <p>An allegation, in an indictment for such offence, that the respondent, “ being an evil disposed person, and contriving and intending to obstruct and impede the due course of justice,” “ unlawfully and unjustly did endeavor to dissuade, hinder and prevent” the witness from appearing and testifying in a certain criminal prosecution named, sufficiently shows, that the respondent knew of the existence of that prosecution and of the obligation of the witness to attend.</p>

<p>The making of the advertisement of his sale, by the collector of a particular land tax, is an official act; and, if made before he is qualified by being sworn,.his sale is void; — and the date, appearing upon the advertisement, must be taken as prima facie evidence, at least, of the time of making it.</p> <p>If the advertisement, as recorded, describe the act granting the tax as an act assessing a tax “ for the purpose of making and repairing and building bridges,” when the act itself was “ for the purpose of making and repairing roads and building bridges,” this is sucha material omission, as will render invalid the sale under such advertisement.</p> <p>And the town clerk cannot, after the expiration of the time for redeeming the land, amend such record, even so as to make it correspond with the original advertisement. The statute requires, that the record should contain full evidence of the making of the advertisement and of its publication.</p>

Audita querela to set aside an execution issued by a justice of. the peace, upon the ground that an appeal was improperly refused in the case. Held: that this writ is the appropriate remedy for the party aggrieved by the refusal of a magistrate to allow an appeal, where it ought to be allowed. 2. The.offset interposed by the complainant, being -a note for more than $20,00,entitled either party to an appeal.

Book Account. The plaintiffs sold to the defendants, at Burlington, a quantity of wool, and signed the following memorandum,— “We have this day sold Messrs. John Kerr & Co.the wool in three rooms, and shown Mr. Kerr this day, in all supposed to be 40,000 lbs., at forty and one half cents per lb.; the sale is for cash, or sight drafts; ” and the defendants signed a memorandum expressing their assent to the same.

Book Account. The suit was brought originally to the county court; judgment to account was rendered, and an auditor was appointed. At the hearing before the auditor the plaintiff presented his account, which accrued in 1841, and amounted to ninety one dollars and fifty cents, as «charged at the time when the action was commenced, and he claimed to be allowed $26,89 as interest, — which was first charged at the hearing before the auditor.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows. The plaintiff presented an account against the defendants for 35,042 lbs. of scrap iron, at eighty seven and a half cents per hundred pounds, and gave credit for a note for $272,00, — claiming a balance, with the interest, of $38,15. The defendants then gave in evidence a bill of sale in the following words,— “ Messrs.

Assumpsit. The original writ, which was made returnable to the county court, was served by attaching the property of the defendant, and was signed “ E. A. Stansbury, Dep. Clerk,” and in no. other manner. The defendant pleaded in abatement, that Stansbury, at the time of the issuing and service of the writ, was not a deputy clerk of Chittenden county court.

Assumpsit upon a promissory note, signed by the defendants and one William Foot, — as to whom there was a return of non est inven-tus. Plea, the^ general issue, and trial by-jury, October Term, 1846, — Bennett, J., presiding.

In this case, which came to the county court by appeal, the defendant, at the first term, filed a motion to dismiss the suit, and assigned as cause, that the suit was originally commenced before a… Held: that the right of another justice to continue extended only to the return day of the writ. Phelps et al, v. Wood, 9 Vt. 399. Thomp. St. 30.

<p>Debt upon judgment. The defendant pleaded, that the plaintiff’s cause of action did not accrue within eight years. The plaintiff replied, that the defendant, within six years next before the commencement of the suit, promised to pay the judgment. To this replication the defendant demurred specially. The county court, October Term, 1845, — Bennett, J., presiding, — adjudged the replication insufficient. Exceptions by plaintiff.</p> <p>1. The replication departs unnecessarily from the form of the plea; it should have been, that the action did accrue within eight years.</p> <p>2. It is argumentative. Gould’s PI. 63, § 28. Lawes’ PI, 47.</p> <p>3. It tenders an immaterial issue. The allegation, that the defendant promised to pay within six years is traversable. Danforth v. Culver, 11 Johns. 146. Jones v. Moore, 5 Binn. 573. If traversed, and it should appear that the defendant did promise seven years before the bringing of the suit, and the verdict should negate a promise within six years,, for whom would the court render judgment l A traverse of the replication would be a negative pregnant. Gould’s PI. 318, 506. 1 Chit. PI. 631. 2 lb. 605. Bennett v. Hol-beck, 2 Saund. 319, (n. 6.) Gailer v. Grinnell, 2 Aik. 349; 1 Vt. 365. Olcott v. Scales, 3 Vt. 173. Macfadzen v. Olivant, 6 East 387. Dyster v. Battye et al., 3 B. & Aid. 448, [5 E. C. L. 344.] 16 Vt. 434. Blaclcmore v. Tidderly, Ld. Haym. 1099. Carth. 371.</p> <p>The statute raises a presumption, that a debt has been paid after the lapse of eight years; and any evidence to rebut that presumption is sufficient; a mere acknowledgment, that the debt is due, is sufficient. The action is not, therefore, founded upon the promise, nor is it necessary, that it should be replied; it may be given in evidence under the issue formed upon the plea of the statute. Yea v. Fouraker, 2 Burr. 1099. Quantock v. England, 5 lb. 2628. Bryan v. Horseman, 4 East 599. Leader v. Tatton, 16 lb. 420. Thornton v. Illingworth, 2 B. & C. 824, [9 E. C. L. 256.] Gibbons v. McCasland, 1 B. & A. 689. Sluby v. Cliamplin, 4 Johns. 468. Danforth v. Culver, 11 lb. 146. lord v. Shaler, 3 Conn. 131. Baxter v. Pennyman, 8 Mass. 133. Maxim v. Morse, 8 lb. 127. Gailer v. Grinnell, 2 Aik. 349. Olcott v. Scales, 3 Vt. 175. If the replication of an assumpsit is no departure in an action of debt on judgment, it is difficult to see how an assumpsit within six years is more a departure than within eight, inasmuch as six years is within the statute. If it is treated as a waiver of the statute, it may be set up at any time. If the substance of the promise is necessary, the statute would run upon that in six years. So in either event the replication is sufficient. Olcott v. Scales, 3 Yt. 173. Marlow v. Bellamy, 7 Yt. 54.</p>

This was an action to recover the penalty given by the statute for receiving a fraudulent conveyance. Held: that a less degree of interest, or bias, was necessary to disqualify a juror, than a witness. Rex v. Prosser et al., 4. T. R. 17. We insist, that the same rule applies in this case, that would, if the action were brought for the benefit of a private corporation.

Trespass for taking certain personal property. Held: that a judgment in rein, rendered by a municipal court, stands upon the same ground, as to conclusiveness, as that of an admiralty court.

Trespass for taking a cow. Plea, the general issue, with notice of special matter of defence, and trial by jury, September Term, 1845, — Bennett, J., presiding.

Ejectment. Plea, the general issue, and trial by jury, September Term, 1846, — Bennett, J., presiding. Held: that a decree of foreclosure against the plaintiff did not defeat the action; and in Gibson v. Seymour, 3 Vt. 565, it was held, that a deed, absolute in terms, but intended as a security, did not defeat the action.

The defendants pleaded, that the paupers were unduly removed, because the place of their last legal settlement was not in Colchester.

Audita Querela. The complainants alleged, that on the sixth day of December, 1842,.the defendant obtained from the clerk of Chittenden county court an execution against them for $904,98 damages, $22,38 costs, and $0,25 for execution, upon a judgment previously rendered by that court in her favor, and caused the property of the complainants to be seized thereon; that the complainants, believing the execution issued irregularly, prayed out a writ of audita querela on the 30th…

Scire Facias. The plaintiff alleged, that on the SCth of April, 1841, he recovered judgment before a justice of the peace against one Jonathan Willis for 822,42 damages and 10,02 costs; that Willis appealed to the county court, and the defendant recognized to the plaintiff in the sum of $70, conditioned that Willis should prosecute his appeal to affect and pay all intervening damages, with additional costs, in case judgment should be affirmed; that at the May Term, 1842, of…

Book. Account. Judgment to account was rendered, and an auditor was appointed, who reported, in substance, as follows. About the first of September, 1840, the defendant and his son, Franklin H. Stone, entered into partnership in keeping an inn at East Berkshire, under the firm of J.- C. Stone & Son, and so continued until the time of the hearing before the auditor.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. The plaintiffs’ account amounted to $14,91, and accrued in June, 1839; and they were entitled to recover that sum, unless barred by the statute of limitations, upon which the defendant relied.

Indebitatus Assumpsit, for money had and received. Plea, the general issue, and trial by jury, April Term, 1847, — Royce, Ch. J., presiding.

Assumpsit upon a promissory note. The action was commenced before a justice of the peace, and the defendants Blair and Charles A. Scott suffered judgment by default. The defendant Ira S. Scott appeared, and, after verdict and judgment had been rendered against him, appealed, and entered the action in the county court. There was no appearance in the county court for the other two defendants, unless the appearance for Ira S. Scott necessarily operated an appearance for them.

Assumpsit upon a promissory note for $56,10, dated June 16, 1841. Plea, the general issue, and trial by the court, September Term, 1846, — Royce, J., presiding. On trial the plaintiff gave in evidence the note declared upon.

Assumpsit upon an award of arbitrators. Plea, the general issue, and trial by the court, September Term, 1846, — Royen, J. presiding.

Trespass on the Case against the defendant, as sheriff of the county of Chittenden, for the neglect of his deputy, Harmon Wood-ruff, to pay to the plaintiff money collected by him upon an execution in the plaintiff’s favor, although requested so to do. Plea, the general issue, and trial by the court, April Term, 1846, — Rovce, J., presiding.

Trovéis, for a cow and heifer. Plea, the general issue, with notice of special matter of defence, and trial by the court, September Term, 1847, — Royce, J., presiding.

Trespass on the.Case. The plaintiff declared as follows;— “ For that, to wit, on or about the first day of May, 1845, at West- ‘ haven in the county of Rutland, the defendant, without any cause of ‘ action, prayed out a writ of attachment in his favor against the plain- ‘ tiff, in due form of law, signed by William C. Kittridge, justice of ‘ the peace in and for the county of Rutland aforesaid, and return a- ‘ ble before said justice Kittridge, at Westhaven aforesaid; on the…

Trespass for taking two hprses, one single harness, one double whiffletree and two single whiffletrees. The suit was brought to the county court, the property being alleged, in the declaration, to be of the value of $150, and the ad damnum being placed at the same sum. Plea, the general issue, and trial by jury, September Term, 1846, — Royce, J., presiding.

Book Account. Judgment to account was rendered in the county court, and auditors were appointed, who reported the facts as follows. The firm of Pearl, Killam & LaClare, of which the defendant was a member, purchased from the plaintiff in July, 1844, a quantity of potash, for which the plaintiff claimed to recover in this action.

<p>Assumpsit. The action was commenced before a justice of the peace and was brought to the county court by the defendant by appeal. The declaration contained three counts, in each of which it was alleged, in different forms, that the defendants, on the first'day of April, 1846, in consideration of one dollar and fifty cents, agreed that the plaintiff might pass their toll gate in Ripton for one year, without carrying lumber, but that they had refused to do so; and each count concluded “to the damage of the plaintiff ten dollars.” It appeared from the record, that a verdict was returned in favor of the plaintiff, before the justice, for $6,50. The plaintiff moved to dismiss the suit, for want of appellate jurisdiction in the county court.</p> <p>The county court, December Term, 1846, — Bennett, J., presiding, — overruled the motion; to which decision the plaintiff excepted.</p> <p>cited Brush v. Harlburt, 3 Yt. 46; Richardson v. Denison, 1 Aik. 210; Hill v. Wait, 5 Vt. 124; Bell v. Mason, 10 Yt. 509; Weston v. Marsh, 12 Vt. 420; Wightman v. Carlisle, 14 Vt. 296; Boardmanv. Harrington, 9 Vt. 151; Stevens v. Howe, 6 Vt. 572.</p> <p>insisted, that under this declaration the jury might have assessed distinct damages upon each count, and cited Chit. PJ. 391; 2 M. & S. 533; 11 Mod. 196.</p>

Trover for sundry articles of merchandize, which the plaintiff claimed by virtue of a right to stop them in transitu. Plea, the general issue, and trial by the court, December Term, 1845,' — Bennett, J., presiding. This case was heard in the supreme court at the same time with another, in favor of Patrick Fitzsimmons against the same defendant.

Trespass on the Case. The plaintiff alleged in his declaration, in substance, that he was-possessed of a messuage, describing it, along which a stream of water flowed and of right ought to flow, and that the defendants, by an embankment built upon their own land, had obstructed the stream, by means of which it overflowed the plaintiff’s land, whereby he had suffered injury. The action was commenced before a justice of the peace, and came to the county court by appeal.

• Trespass for taking a quantity of pine fence rails. Plea, the general issue, and trial by jury, December Termjjl.847, — Bennett, J., presiding.

Tiiespass for taking a quantity of goods, wares and merchandise. Plea, the general issue, and trial by the court, December Term, 1845, — Bennett, J., presiding, — upon a case stated by the parties, which was in substance as follows.

This was a petition addressed to this court, and regularly served' upon the petitionees under a judge’s order.

Trustee Process. After judgment had been rendered against the principal defendants, the trustees filed their disclosures, and the plaintiff filed allegations; and the case was tried by jury, upon the… Held: as it was formerly in this state, that a person could not be held chargeable as trustee, unless the principal debtor could enforce the collection of the debt against him.

<p>Book Account. Judgment to account was rendered, and an auditor was appointed, who reported, in substance, as follows.</p> <p>The plaintiff, among other items of his account, presented a claim for a quantity of wool sold to the defendant, and the auditor found, that the wool was sold to the defendant in February, 1844, at the price’charged in the plaintiff’s account. August 20,1846, and after the commencement of this suit, the parties, by submission in writing duly signed, referred to arbitrators the decision of the question, whether the wool was sold by the plaintiff to the defendant, and at what price, and agreed that the plaintiff should have judgment in this suit, so far as this item was concerned, for the amount fixed by the arbitrators, if they should award in favor of the plaintiff, and that, if they should award in favor of the defendant, this suit should proceed in reference only to the other matters of account between them. There was no provision in the submission, that the award should be in writing. On the 21st day of August, 1846, a hearing was had before the arbitrators, and the arbitrators decided upon their award ; and this award was soon after published to the parties, by parol merely, — the arbitrators and parties being all present. The award was, that there was no contract of sale between the parties in reference to the wool, and that the plaintiff was not entitled to recover against the defendant therefor. On the seventh day of September, 1S46, and after the award was published, as above mentioned, the plaintiff signed a written revocation of the submission and gave notice thereof to the arbitrators. Afterwards the arbitrators reduced their award to writing and indorsed it upon the back of the submission.</p> <p>The auditor reported, that if the award was not held binding upon the plaintiff, there was due to him from the defendant $895,17; but that, if the plaintiff was bound by the award, there was due to him from the defendant $298,54; — and he referred the question, as to the effect of the award, to the court.</p> <p>The county court, April Term, 1847, — Hall, J., presiding,— rendered judgment in favor of the plaintiff, upon the report, for $298,54. Exceptions by plaintiff.</p> <p>The proceedings under the written submission constitute no bar to the plaintiff’s charge for the wool; and the auditor having reported, that the defendant bought the wool of the plaintiff, judgment should be rendered in favor of the plaintiff for the full amount reported. When parties make a written submission to arbitrators, it cannot be waived, revoked, or executed by an award, except the same be done by writing. Sutton et al. v. Tyrrell, 10 Vt. 91. 1 Swift’s Dig. 469. Cable v. Rogers, 3 Bulstr. 312. Oates v. Bromil, 6 Mad. 100.</p> <p>A parol award is good, and capable of delivery ; 1 Stephen’s N. P. 129. Oates v. Brom.il, 2 Petersd. 186, 189. An award has its effect from delivery only; and the declaration to the parties of a parol award is equivalent to the delivery of a written one. 1 Com. Dig. 677, n. g. And an award is published, when the parties have notice from the arbitrator, that it may be had on payment of his charges. Macantlius v. Campbell, 27 E. C. L. 117. Hunt v. Wilson, 6 N. H. 36. The power of the arbitrator must be revoked before his power is executed; and-when the arbitrators, in the present case, declared their award to the parties, it was too late to revoke their authority. Brown v. Vawser, 4 East 584. Henfree v. Browley, 6 East 310. DicKns v. Jarvis et al., 12 E. C. L. 303. King v. Joseph, 1 E. C. L. 155. Selleclc v. Adams, 15 Johns. 197.</p>

Assumysit for money had and received. Plea, the general issue, and trial by the court, September Term, 1846, — Williams, Ch. J., presiding. On trial the facts appeared as follows. On the fifth day of August, 1841, the plaintiff executed to the defendant four promissory notes, — one for $400, payable August 1, 1844, one for $50, payable August 1, 1842, one for $50, payable August 1, 1843, and on© for $50, payable August 1, 1844.

Assumssit. The action was commenced in the life time of the plaintiff, Joel Beaman, and, upon his decease during the pendency of the suit, was afterwards prosecuted by his administrators.

Assumpsit upon two promissory notes. The defendant pleaded the general issue, and also the statute of limitations. The plaintiff replied, that the action did accrue within six years. Trial by jury, April Term, 1847, — Hall, J., presiding.

Assumpsit upon a policy of insurance, dated September 16,1842, by which the defendants insured a saw mill, belonging to the plaintiffs, against loss by fire, to the amount of $400, for six years. The plaintiffs alleged, that the mill was burned September 2, 1840, and that notice thereof was duly given to the directors of the company. The writ was made returnable to the April Term, 1845, of Rutland county court.

This was an action on the case for speaking slanderous words, imputing to the plaintiff the crime of perjury. The defendant pleaded the general issue, and also pleaded four several pleas in justification, setting forth with particularity instances in which he alleged the plaintiff had, upon the trial of certain issues, committed perjury.

Trespass on the Case against the defendant for making, as constable, a false return upon an execution in his hands, whereby the plaintiff alleged that he had been defeated in a suit which he had commenced against the defendant for an assault and battery, and had thereby been put to a great expense and damage and compelled to pay large sums of money.

Trespass on the Case for diverting the water from the plaintiffs’ mill. Plea, the general issue, and trial by jury, September Term, 1845, — Williams, Ch. J., presiding.

Trover for a quantity of hay. The case was referred, under a rule from the county court, and the referee reported the facts substantially as follows. The plaintiff claimed title to the hay in question by virtue of four-several attachments, all made September 13, 1841, by the plaintiff, as officer, against one David W. Philips, who was the owner of the hay at the time the attachments were made.

Ejectment for land in Pawlet. The writ bore date December 16, 1845. The defendant Clark was defaulted; and the defendant Blakely pleaded the general issue. Trial by jury, April Term, 1847, —E. June, assistant judge of Rutland county court, presiding.

Trial by the county court, April Term, 1847, — Hall, J., presiding.

<p>In Chancery.</p> <p>Appeal from the court of chancery. The orator alleged in his bill, in substance, the death of the intestate, Heman Hastings, and the grant of administration to the orator; that the intestate, in August, 1839, sold to the defendant Jabez D. Perry a farm in Wells, and received back a mortgage of the same farm to secure the payment of five notes of eleven hundred dollars each; that the mortgage became forfeited by breach of the condition; that Perry conveyed the premises to the defendants Jabez D. Perry, Jr., and Andrew Perry, and they conveyed to the defendant Joseph Hazen; that the orator commenced an action of ejectment against these four defendants at the September Term, 1841, of Rutland county court, and recovered judgment against them, and that they entered a review of the case; that the premises were insufficient security for the payment of the mortgage debt, and that Jabez D. Perry was insolvent; that there was a large amount of valuable timber growing upon the^ premises; and that the defendants, in February, 1842, and while the action of ejectment was still pending, well knowing these facts, and combining to injure the orator, proceeded to cut down and carry away large quantities of the timber then growing upon the premises, and disposed of the same, and threatened to cut down and carry away still more of the timber. And the orator prayed for an injunction, and that an account might be-taken of the amount of timber cut by the defendants, and they be decreed to make satisfaction to the orator therefor. The sttbpama bore date February 22, 1842; and the injunction prayed for was granted by the chancellor upon the issuing of the subposna.</p> <p>The bill was taken as confessed by Andrew Perry and Joseph Hazen. The remaining defendants answered severally, either admitting or professing ignorance of the matters alleged in the bill as to the title, but denying all combination to injure the orator, or that they had any knowledge, that the land was inadequate security for the mortgage debt, or that they had made the threats alleged in the bill: but they admitted, that they had taken timber from the premises by license of the mortgagor, or of his assignees, — specifying the quantity particularly. They also alleged, that after the filing of the bill, and after all intrusion upon the premises by them had ceased, the orator had obtained judgment, in his action of ejectment, for the possession of the premises and ten cents damages and his costs, and -that time for redemption had been allowed, and that the orator, at the expiration of that time, had entered into, and had retained, possession of the premises.</p> <p>The answers were traversed, and testimony was taken, — the substance of which is sufficiently detailed in the opinion of the court. An account was ordered to be taken of the amount of waste committed ; and the master reported the amount of timber cut by each defendant, — amounting in the whole to $539,14.</p> <p>The court of chancery, September Term, 1846, — Williams, Chancellor, — decreed, that each defendant should pay to the orator ' the sum reported by the master as the amount of the waste committed by such defendant, and that the orator’s costs should be paid by all the defendants jointly. From this decree the defendants appealed.</p> <p>The mortgagee has such an interest in the estate mortgaged, that he is entitled to hold his security unimpaired. 4 Kent 160. Brady v. Waldron, 2 Johns. Ch. R. 148. The principle is well settled in England, and by the supreme court of this slate, that the mortgagor and his assignees in possession, after the law day expires, are liable to the mortgagee for waste. 53 Law Lib. 331. Walker v. Hitchcock, 19 Yt. 634. Hutchins v. Lalhrop, Washington Co., 1845. Smith v. Goodwin, 2 Greenl. 173. Stowell v. Pike, lb. 387. Hitchman v. Walton, 4 Mees. & Welsb. 409. Patridge v. Bere, 3 B. & A. 604. No question is better settled, than that the mortgagee, on filing his bill, may have an injunction out of chancery to stay waste committed by the mortgagor, his assignees, or third persons. Eden on Injunct. 118. Brady v. Waldron, 2 Johns. Ch. R. 148. Ld Bla-ney v. Mahon, 22 Vin. 521. Robinson v. Litton, 3 Atk. 210. Far-rant v. Lovel, lb. 723. Usborne v. Vsborne, 1 Dick. 75. 2 Story’s Eq. 197, 286. And when the court of chancery extends relief by injunction, it will, upon that ground, and to avoid a multiplicity of suits, compel an account of waste already committed. Winship v. Pitt, 3 Paige 259. Jeremy’s Eq. 510. Dana v. Nelson et al., 1 Aik. 252. Beardsley v. Knight et al., 10 Yt. 185.</p> <p>The only question, which has ever been considered debateable, is, whether a bill brought for a discovery and an accounting could be sustained, without a prayer for an injunction to stay waste; — but when an injunction has legally issued, an accounting has followed, as a matter of course. Brady v. Waldron, 2 Johns. Ch. R. 14S. Fay v. Brewer, 3 Pick. 203. Eden on Injunct. 146. Jesus’ College v. Bloomer, 3 Atk. 262. Putney v. Warren, 6 Yes. 73, 89. Univ. of Oxford & Cambridge v. Richardson, 6 Ves. 689, and note, 714. 2 Story’s Eq. 206. Greener v. Eyer, 9 Ves. 341. Winship v. Pitt, 3 Paige 259. Pawlet v. Welt on, 3 Ves. 374.</p> <p>But even if it'Should be admitted, that the mortgagor is not liable for waste, either at law or in equity, the other defendants could not avoid a decree against them. The mortgagee has the whole estate, against all but the mortgagor, in the same manner as if it were absolute. Fay v. Brewer, 3 Pick. 203. Hitchman v. Walton, 4 M. & W. 409. They áre mere trespassers, and therefore are liable to* account for waste. 2 Story’s Eq., § 918.</p> <p>The joint decree against the defendants for costs was correct. It was the exercise of a discretion, which this court cannot revise. Mott v. Harrington, 15 Yt. 185. Ward v. Sharp et al.f lb. 115.</p> <p>1. It is insisted, that this bill, so far as it seeks for an account, cannot be sustained, even against the mortgagor, or his assigns.</p> <p>At law, the writ of estrepement, the action of waste, and an action on the case in the nature of waste, were successively the appropriate remedies by the remainder-man, or reversioner in fee. 3 Bl. Com. 225, 229. At length courts of chancery granted injunctions to stay waste; and, after some time, extended their power, so as to take jurisdiction by way of account for the waste committed before injunction. This was to save multiplicity of actions. Garth v. Cotton, 3 Atk. 751. Watson v. Hunter, 5 Johns. Ch. R. 169. Winship v. Pitt, 3 Paige 259. For some time the court refused to entertain a bill for an account for the waste, unless as incident to a bill for an injunction. Jesus’ College v. Bloom, 3 Atk. 169. Smith v. Cook, lb. 378. Lee v. Alston, 1 Ves. 78. Watson v. Hunter, ub. sup. Afterwards bills for account for waste were sustained, on the ground that the tenant thereby became bailiff and receiver to the remainder man, or reversioner. Lee v. Alston and Garth v. Cotton, above cited. But no bill for account for waste has been sustained, except when an action at law would be sustained, — as by a remainder man, or reversioner; and in case of mortgagee and mortgagor, though injunctions have been granted to stay waste, yet in no case has an account been given for what has been taken from the land.</p> <p>To sustain this bill, even as against the mortgagor, or his assigns, for the account, is inconsistent with the rights, liabilities and relationship, which have long been settled as existing between mortgagor and mortgagee. First, the mortgagor is the owner of the land; and is as much so, after the debt has become due, as he was before; and he continues owner, until the equity of redemption is actually foreclosed and the time of redemption expired. Second, the mortgagee is a creditor, having a lien for his debt, a mere personal chattel, and he remains but a creditor, until an actual foreclosure has extinguished the debt. -v. Hicks, IVern. 412. 2 Pow. on Mort. 683. 3 Bac. Ab. 641. 5 T. R. 654. Martin v. Mowlin, 2 Burr. 969. King v. Si. Michael’s, Doug. 630. In New York the mortgagor is siezed of the land, notwithstanding the mortgage, and is the owner, as to all persons except the mortgagee, and the widow of the mortgagor is entitled to dower. Coles v. Coles, 15 Johns. 319. Hitchcock v. Harrington, 6 lb. 290. Wilson v. Troup, 2 Cow. 195. Collins v. Torrey, 7 Johns. 278. Edwards v. Farm. Ins. & Loan Co., 21 Wend. 467. Astor v. Hoyt, 5 Wend. 603. Runyan v. Merserau, 11 Johns. 534. Sedgwick v. ■Hollenback, 7 Johns. 376. In Massachusetts there are similar cases. Groton v. Boxborough, 6 Mass. 50. Goodwin v. Richardson, 11 lb. 469. Bolton v. Ballard, 13 lb. 227. Kelly v. Beers, 12 lb. 387. The same principle is established in Maine. Blarney v. Beance, 2 Greenl. 182. In Connecticut the mortgagor is regarded as the owner of the land to every purpose, except the right of the mortgagee to take possession. BarJchamsted v. Farmington, 2 Conn.. 600. Fish v. Fish, 1 lb. 559. Huntington v. Smith, 4 lb. 235.</p> <p>From these' decisions it follows, that the mortgagee has a lien for his debt; that he may take possession, or commence, ejectment for it; that, so long as he permits the land to remain in the mortgagor’s possession, he consents that he may use it, and the mortgagee rests content with the accruing interest on his debt, and leaves the mortgagor to all the rights of owner, without account; that when the mortgagee takes possession, he becomes trustee and bailiff to the mortgagor, for whatever he obtains from the land; and that, as to third persons, the mortgagor remains owner, for all purposes, until the mortgagee actually forecloses, or enters into possession, — and therefore third persons may, in all respects, deal with the mortgagor, while he is in possession, as owner.</p> <p>In chancery, as at law, the right to sustain a suit must actually exist and be perfect, when the suit is commenced. In this case, the right of the orator to recover depended upon contingency; and this cannot be cured by what has subsequently transpired.</p> <p>2. It is insisted, that even if this bill for account were sustained against the mortgagpr, and his assigns in possession, it is not sustainable against the other defendants. Whatever they have taken severally has been by the license of the mortgagor in possession, the owner; and for consideration to him, and without fraud. Hence, ¡they are not wrong doers. When the account is sustained in chan-eery, it is only against the defendant, as bailiff. Eden on Injunct. 251. Lee v. Allston, 1 Yes. 78. Mad. Ch. 88. Pursuing the tenant in possession in chancery as bailiff, for account, is to ratify his proceedings; and thereby third persons are left answerable only to him with whom they dealt. Watson v. Hunter, 5 Johns. Ch. R. 169.</p> <p>3. Joint costs should not be allowed against the defendants.</p>

<p>In Chancery.</p> <p>Appeal from the court of chancery. The substance of the bill and answer and the proceedings and decree of the court of chancery are sufficiently detailed in the opinion delivered by the court.</p>

<p>Regularly a plea in abatement, which alleges matter of abatement dehors the writ, is bad, if it both commence and conclude with a prayer of judgment of the writ; it should only conclude with such prayer.</p> <p>All defects in pleas in abatement may be reached by general demurrer.</p> <p>A plea in abatement, which alleges, “ that James Hickox, the justice of the peace who signed said writ and took security by way of recognizance for the costs of prosecution in said suit, was, at the time of signing said writ and taking said security by way of recognizance for the costs of prosecution, as justice of the peace, as aforesaid, and still is, related to the said defendant within the fourth degree of affinity,” is defective, in not containing an allegation, except by way of recital, that the writ was signed by James Hickox.</p> <p>Such plea is also defective, in not showing that the writ was not otherwise signed, at the time of service, than by James Hickox.</p> <p>Such plea is also defective, in not alleging the particular relationship, which constituted the affinity.</p>

In this case, which came to the county court by appeal, the defendant pleaded in abatement, that the officer, who served the writ, did, before service, erase from the writ the name of the place set for the trial of the suit, and. insert the name of another place. The plaintiff replied, that this alteration was made by the officer at the request of the plaintiff’s agent, after the writ had been made by an attorney. To this replication the' defendant demurred.

<p>Debt upon a judgment recovered at the December Term, 1842, of Bennington county court, and which the plaintiff averred, in his declaration, was rendered for a debt “then due by the said defendant to the said plaintiff” The defendant pleaded in bar, in substance, that he filed his petition in bankruptcy, under the act of Congress, June 20, 1842; that he was declared a bankrupt August 1, 1842 ; that he obtained his certificate of discharge February 6, 1843 ; and that the debt in said declaration mentioned was due and owing from the defendant to the plaintiff at the time the defendant was declared a bankrupt, and was proveable under the bankruptcy. The plaintiff replied, that the debt “in the said declaration mentioned” was and is the judgment declared upon, which was rendered at the December Term, 1842, of Bennington county court, and not otherwise, — • and after the time when the defendant was declared a bankrupt. The defendant rejoined, that the debt, upon which that judgment was founded, was due from the defendant to the plaintiff, at the time the defendant was declared a bankrupt, and that it was proveable under the bankruptcy. To this rejoinder the plaintiff demurred.</p> <p>The county court, December Term, 1S47, — Hall, J. presiding, —adjudged the rejoinder insufficient. Exceptions by defendant.</p> <p>The debt sued is the judgment of December, 1842. Any previous debt, upon which that judgment was founded, became merged in that, — which became a new and larger debt, by the amount of the costs recovered, and the only debt due from the defendant to the plaintiff. But the defendant insists, that if the debt, upon which that judgment was rendered, would have been proveable under the statute, the judgment itself is barred by the certificate. If this were so, yet the defendant does not bring the case within his rule. It does not appear by the pleadings, that the original debt was one, which was proveable under the statute.</p> <p>The averment, that the debt was proveable under the bankruptcy, is insufficient; for, first, this is a legal conclusion, to be drawn by the court; and second, the facts set forth in the declaration, plea and replication show clearly, that the debt, — which, in all the pleadings previous to the rejoinder, appears to be the judgment, — was not proveable under the bankruptcy.</p> <p>The rejoinder is ill, for the farther reason, that it is a departure from the plea. The debt named in the plea is the judgment; the debt named in the rejoinder is one pre-existing; and this a general demurrer reaches. 1 Chit. PI. 646. Cro. Eliz. 783. 3 Lev. 241. Com. Dig., Pleader F. 7.</p> <p>The plaintiff’s demand was proveable under the commission; it is so alleged in the plea and rejoinder and admitted by the demurrer.</p> <p>2 Stark Ev. 203. Willett v. Pringle, 5 B. & P. 190. 3 M. & S. 326. 2 lb. 551. It is a general rule, that if a debt may be proved under the commission, the bankrupt, when certificated, is not only discharged from liability for such debt, but also from any consequential damages, resulting from the non-payment thereof. Chit, on Cont. 184. • 3 Wils. 13. 3 B. & Aid. 13. 4 Scott 271. Judgments, obtained after the act of bankruptcy and before certificate, on debts which were due before the act of bankruptcy, are discharged by the certificate, and also the costs, as well as the debt. 2 Stark. Ev. 103. Dinsdale v. Eames, 2 B. & B. 8, [6 E. C. L. 3.] Boutejlour v. Coats, 1 Cowp. 25. Bland ford v. Foote, lb. 138. Vansandon v. Corsbie, l Chit. R. 16, [18 E. C. L. 16.] 5 B. & P. 190. •</p>

<p>Debt upon a bond, executed by the defendants upon the granting to the defendant Royal Sargeant, as heir of John Sargeant, an appeal from the decree of the probate court approving and allowing an instrument offered as the last will and testament of the said John Sargeant. The condition of the bond was, that the appellant should prosecute his appeal to effect, or pay all intervening damages and costa occasioned by the appeal; and the plaintiffs alleged, that the decree of the probate court was affirmed; and that they had incurrred in consequence of the appeal, a large amount of costs, and had also incurred expenses to a large amount, which were not taxable costs; and that, in consequence of the appeal, it had become necessary to have a special administrator appointed upon the estate, and the expenses of such special administration had increased, to a large amount, the expenses of settling the estate. The defendant pleaded payment of the costs, and also several pleas in bar as to the intervening damages.</p> <p>The action was referred, under a rule from the county court; and the referees reported, that the will of John Sargeant was approved by the probate court November 24, 1843, and at the same date letters testamentary were issued to the plaintiffs, as executors; that an appeal from the decree allowing the will was taken December 4, 1843, on which occasion the bond declared upon was executed; that on the 20th of December, 1843, without any order revoking the grant of letters testamentary to the plaintiffs, other than the appeal, special administration, upon suggestion of the plaintiffs, was granted to the plaintiffs, by the probate court; and that the expenses of the special administration beyond what would have been incurred by a settlement of the estate under the letters testamentary, amounted to $19,92; — and this sum the referees allowed to the plaintiffs. The referees also reported, that the executors, in consequence of the appeal, expended $73,80, beyond the amount of the taxable costs, in prosecuting the suit; and this sum the referees disallowed, — but submitted the question to the court.</p> <p>The county court, June Term, 1847, — Hall, J.,' presiding,— rendered judgment for the plaintiffs, upon the report, to recover both these sums, — amounting to $93,72. Exceptions by defendants.</p> <p>1. The grant of special administration was unauthorized by law. The statute, — Rev. St. c. 47, § 5, — provides for the appointment of special administrators in those cases, only, where “ there shall be a delay in granting letters testamentary ” &c. Here was no such delay ; the letters had issued, and the executors had acted under their appointment several days, before the appeal was taken. The grant of special administration was also unnecessary; — the executors might have performed all the duties of special administrators. The appeal did not operate, per se, as a revocation of the letters testimentary. In England, an executor is said to derive his authority exclusively from the will. The probate is merely a certificate, under the seal of the ordinary, (a copy of the will accompanying it,) that the will has been duly proved; which probate is only the evidence, not the foundation, of the executor’s title. Hence he gives no bond; and he may perform almost every act, incident to the office, before probate as well as after. 2 Steph. N. P. 182. With us he is required to give bonds, before he shall enter upon the execution of his trust Rev. St. c. 46, § 2. But, having given bonds, and letters testamentary having issued, though an appeal from the probate of the will be afterwards taken, how is it, that he does not retain all the powers of an executor in England, before probate ? If, then, the grant of special administration was unauthorized and .unnecessary, the expense attending it was needless, and was no part of the damages properly occasioned by the appeal.</p> <p>2. The claim to recover the expenses of the plaintiffs, upon the appeal, beyond the taxable costs, is a novelty. The recognizance, taken on sueing out a writ of summons, or attachment, is, “ that the plaintiff shall prosecute his writ to effect and shall answer all damages.,” Rev. St. c. 28, § 5. This language comes from the ancient statutes. Damages here means costs, and only costs, by ancient and universal interpretation. Houghton v. Slack, 10 Vt. 620. Peasley v. Buckminster, 1 Tyl. 264. The condition of the bond given on entering an appeal from an allowance, or disallowance, by commissioners is the same as the present. Rev. St. c. 49, § 38. But it has never been supposed, that the claimant subjected himself to a penalty of this nature, or that, if the executor appeal, and fail, that the estate must pay the extra expenses of the claimant, in prosecuting his claim.</p> <p>1. The costs and expenses of the special administration were clearly occasioned by the appeal. The appeal necessarily vacated, or suspended, the power of the executors; they had no power, except by virtue of the will. 11 Vin. 64. 2 Steph. N. P. 1830. The appointment of special administrators was a duty, which the probate court could neither omit, nor delay, and which neither the executors, nor legatees, could prevent, if so disposed. Rev. St. 264, § 5.</p> <p>2. The estate was equally damnified by the extra expense of sustaining the will; the appeal was the occasion of that amount being taken from the legatees.</p>

Trespass on the Case for erecting a dam upon the defendants’ land, whereby the water was caused to overflow and injure the plaintiff’s land adjacent. Plea, the general issue, and trial by jury, June Term, 1847, — Kellogg, J., presiding.

The defendants filed a motion to quash the order as to the “ family ” of the pauper, — alleging that he had a family, at the time the order was made, consisting of his wife and five minor children, and that they were removed with him by the officer executing the warrant of removal. To this motion the plaintiffs demurred.

Trespass on the Case for taking nine cows, belonging to the plaintiff, from the possession of one William M. Brown, to whom they had been let to hire for a term of years then unexpired. Held: that goods pawned, or mortgaged, or let for years, cannot be taken in execution. 2 Bac. Ab. 352. 1 Dyer 67. 10 Vin. 560. 3 .Com. Dig. 299. 1 Barkers’ Sheriff 202. 2 Tidd 917. Story on Bail. 238. Marsh v. Lawrence, 4 Cow. 461. 1 Gall. 11.

Trespass on the Case against the defendant, as constable of the town of Grafton, for neglecting to make service of process delivered to him for that purpose. Plea, the general issue, and trial by jury, May Term, 1846, — Williams, Ch. J., presiding.

<p>In Chancery.</p> <p>Appeal from the court of chancery. The orator had recovered judgment against the defendant’s testator, in an action of ejectment, in New Hampshire, for the seizin and possession of land situated in that state, the testator having his residence at the time, and until his decease, in Vermont. The testator claimed title to the land by virtue of a deed, absolute in form, but intended to secure a debt due from the grantor to the testator; and the orator recovered in the ejectment by virtue of the title acquired by him by levy upon the land, as the property of the grantor, subsequent to the testator’s deed, for a debt due to himself from the grantor. After judgment for the orator, in the action of ejectment, the testator brought a writ of review, and, pending that, deceased. The will of the testator was duly proved in the probate court in this state, and commissioners were appointed to examine and • allow all claims against the estate, and made their final report, and the administration of the estate was duly closed, and the residue of the estate was decreed to the defendant as residuary legatee. The writ of review was discontinued, after the time limited for presenting claims for allowance by the commissioners had expired. There was no property and no administration in New Hampshire. The orator presented no claim, before the commissioners, for the mesne profits which accrued to the testator, pending the action of ejectment, in New Hampshire, and now claimed to recover them in this suit.</p> <p>The court of chancery dismissed the bill; from which decree the orator appealed.</p> <p>Although at law actions connected with and growing out of the realty are local, in chancery it is otherwise. When the decree is not to operate directly upon the land, and the parties are within the jurisdiction, and complete justice can be done, the court will take jurisdiction. Massie v. Walls, 6 Cranch 160. Fonbl. Eq. 54 n. Story’s Confl. of Laws 455.</p> <p>It is objected, that at common law the action of trespass for mesne profits did not survive. If, technically, the form of action did not survive, the cause of action did, — the estate having received a benefit. Knox v. Knox, 12 N. H. 352. Hambly v. Troll, Cowp. 371. Jones v. Hoar, 5 Pick. 285. But if neither the form nor cause of action survive in New Hampshire, it is sufficient, if they survive in Vermont, — which they do. Rev. St. 269, §§ 10, 12.</p> <p>A defence to the bill, set up by the answer, is, that the claim of the orator is barred, because not presented to the commissioners. Only those claims are barred, because not presented to the commissioners, which are proper to be allowed. Rev. St. 279, § 13. This statute is to be construed in connection with the one in relation to contingent claims. This claim was, while the writ of review was pending, a contingent claim, liable to be defeated by the result of that proceeding, and, as such, could not properly be allowed. Jones v. Cooper, 2 Aik. 54. Blaclmer v. Blaclcmer, 5 Vt. 355. Lowry v. Stevens, 6 Vt. 116.</p> <p>The defendant has undertaken to show, that, by the law of New Hampshire, the orator’s right of action for mesne profits was perfect immediately upon the judgment in his favor, and that the pendency of the writ of review in no way affected that right. It may be true, that his right to bring an action was perfect; yet it nevertheless appears, that the right of recovery was contingent, and liable to be defeated by a reversal of the original judgment, in the action for mesne profits.</p> <p>This is a case of purely legal jurisdiction. The appropriate remedy is an action of trespass for mesne profits; and that is a local action. It is attempted to establish a fraud; but if Gates occupied the land without right, or color of right, it was a trespass; or if he occupied it under a deed void for fraud, as against the complainant, such occupancy was a trespass. Goodtitle v. North, Doug. 584. Buck v. Wright, 1 T. R. 378. Aslin v. Parkin, 2 Burr. 665.</p> <p>The action of trespass for mesne profits could not, in England, be brought by or against an executor, or administrator; and this continued to be the law, until the statute of 3 & 4 Wm. IV, c 42, sec. 3, which changes the common law in a limited manner. 1 Chit. PI. 195. Pultney v. Warren, 6 Ves. 80. And this is still the law of New Hampshire, except that their statute has provided, that suits commenced previous to the decease of the party to the trespass may be prosecuted to final judgment. Since, then, the cause of action was local, and it died with the person by the law of New Hampshire, there is no foundation for this action. When a claim is barred at law, a court of equity will not interfere to revive it. Tharp v. Tharp. 15 Vt. 105.</p> <p>But it is said, that the cause of action, by reason of the pendency of the writ of review, did not accrue, until after the close of the the commission upon the testator’s estate. The action of review, in New Hampshire, is not a continuation of the original action, as is a review in Vermont, but is more in the nature of a writ of error. Stat. of N. PI., 386, 365, 366. Little v. Bunce, 7 N. H. 485. 6 N. H. 391. 7 Mass. 25. The writ of review did not suspend the right to bring the action of trespass for mesne profits. 12 Petersd. Ab. 620. 1 Chit. PI. 193. Cro. Eliz. 540.</p> <p>If the orator’s claim could be enforced in this state, it was a proper claim to present before the commissioners, and.it is barred by not having been so presented.</p>

Book Account. Judgment to account was rendered in .the county court, and an auditor was appointed, who reported that the plaintiff presented an account against the defendants, for allowance, for a quantity of wood, in reference to which the facts were as follows. In January, 1841, the plaintiff, being indebted to one Ira Powers, proposed to pay him in wood.

This was a declaration upon book account, filed in offset, and, having come from the county court to this court upon exceptions, was, at a previous term, recommitted to auditors. And now the auditors made their report to this court, stating the facts as follows. The plaintiff claimed to recover oii'e half of the expense of supporting his father and mother for a number of years, — the intestate, James H. Clark, being the brother of the plaintiff.

<p>In an action upon book account, declaring against two defendants as partners, a plea in bar, that the defendants ought not to account, because they were never partners, is bad upon demurrer.</p> <p>No defence can be specially pleaded, in such action, which depends, for its effect, upon the plaintiffs’ account.</p> <p>A case once brought into the supreme court from the county court is never remanded, unless some issue to the jury stands closed upon the record, which is to be tried, before the case can be farther proceeded with.</p>

<p>Where property was conveyed to A., his heirs or assigns, by deed of mortgage, with a condition that the deed should be void, upon payment to A., as executor of B., of a debt due from the mortgagor to the estate of B., it was held, that it sufficiently appeared, that A. held the property in trust, as executor.</p> <p>Trust property is not liable to be levied upon and sold for the debt of the trustee; and this rule applies to property in the hands of an executor, both real and parsonal, whether coming from the testator, or from the collection of debts or other assets belonging to the estate.</p> <p>The treasurer of a corporation, who holds money to pay a dividend which has been declared, and who refuses to pay the dividend upon certain shares upon-the ground that he is himself the owner of the shares, is liable personally to an action of assumpsit for money had and received, brought in the name of the real owner of the shares, to recover the amount of such dividend.</p>

<p>The admissions of a deputy sheriff are competent evidence against the sheriff, when sued for the default of such deputy, and against the sureties for the sheriff, when sued upon their recognizance.</p> <p>Such admissions may he proved by any other witness, as well as by the deputy himself, even when he is a witness in the case.</p> <p>And it is not competent for the defendants, for the purpose of rebutting this evidence, to prove other declarations, made by the deputy at a different time, inconsistent with the admissions proved by the plaintiff.</p>

Assumpsit upon a promissory note payable in specific articles. Pleas, the general issue, and non assumpsit infra sex annos. The defendants also pleaded in offset two promissory notes, executed by the plaintiff, and made payable to one Asa B. Foster, or bearer. To the plea of the statute of limitations the plaintiff replied, that the note was subscribed by an attesting witness. To this replication the defendants demurred.

Assumpsit. The plaintiff declared against the defendant as maker of a promissory note payable to Austin & Fay, or order, and by them indorsed to the plaintiff's intestate. The declaration also contained a count for money had and received. Plea, the general issue, and trial by jury, March Terra, 1846, — Redfield, J., presiding.

Debt upon a bond for one thousand dollars. The defendants craved oyer and set forth the condition of the bond, — which was, AhatJb&ilefendants would indemnify the plaintiff against,411 damage, cost and trouble which might, accrue on aceñas — Ifcis having attached certain personal property in a suit in favor of the defendant Hayes against Asa Chamberlain and Carmi D. Chamberlain, and also against all expense, cost and trouble on account of an action of trespass, which had…

Ejectment. Verdict and judgment for defendant. The case, during its pendency, had been carried to the supreme court by the plaintiff, upon exceptions ; in which he prevailed, and the judgment of the court was reversed and the cause remanded.

Trespass on the Case against the defendant, as sheriff of the county of Windsor, for the default of his deputy, George C. Pratt, in not seasonably returning an execution in favor of the plaintiff against one Montague, which was levied on land. Plea, the general issue, and trial by jury, March Term, 1846, — Redpield, J., presiding.

Scire Facias. The plaintiffs declared, that they recovered judgment against the defendant Talmadge at the May Term, 1836, of Windsor county court, for $98,02 damages, and $17,29 costs; that at the same term they recovered a judgement, that Amos Warren, summoned as trustee of Talmadge, was chargeable, as trustee, for $20,13, payable in leather; that Talmadge absconded before the rendition of that judgment, and still resided in parts unknown; that execution of said damages and…

Audita Querela. The plaintiffs alleged in their declaration, in substance, that in September, 1843, they became bail for one Johnson, in a suit against him in favor of the defendant, by indorsing their names upon the back of the writ; that judgment was rendered against Johnson, and execution issued and was duly returned non est inventus; that the defendant then brought scire facias against the plaintiffs, as bail, and recovered judgment against them, and had taken out…

In Chancery. Appeal from a decree of the court of chancery. It appeared, that the defendant Fox mortgaged certain premises to one Marshall, November 24, 1837, to secure a debt of §500,00. On the 21st day of November, 1842, the defendant Bowen attached the same premises by virtue of a writ of attachment against Fox and the defendant Sawyer and others.

In Chancery. Appeal from the court of chancery. The substance of the bill, answer and testimony are sufficiently detailed in the opinion of the court.

In Chancery. Appeal from the court of chancery. The Ascutney Mill Dam Company, a private corporation, being indebted to one Alfred Hall in about the sum of $500,00, mortgaged to him certain land. Subsequently, being indebted to the orator, Jonathan II.

In Chancery. Appeal from the court of chancery. The orator alleged in hist bill, in substance, that March 80, 1840, he loaned to the defendants $131,00, for which they executed to him a negotiable promissory note, payable on demand with interest; that about the first of July, 1840, he lost the note, and had never seen it since; that within a few weeks afterwards he informed the defendants of the loss, and. requested them to execute to him another note of the same tenor,—…

In Chancery. Appeal from the court of chancery. On the fourteenth day of October, 1837, the intestate, Timothy Olcott, conveyed to the orator, Dunklee, in fee, a farm in Chester, together with certain stock and farming tools, for a consideration of about $800, which was appropriated to the payment of Olcott’s debts; and Dunklee on the same day executed to Olcott a lease of the farm, for the term of the natural lives of Olcott and his wife, and the survivor of them, subject…

In Chancery. Appeal from the court of chancery. The substance of the allegations in the hill is as follows.

Indebitatus Assumpsit for money had and received. Plea, the general issue, and trial by jury, November Term, 1846, — -Kellogg, J., presiding.

[Same Case, 19 Vt. 14.] Assumpsit. The plaintiff declared against the defendants, as formerly partners, doing business under the firm of S. & W.… Held: that, if joined in a suit with other defendants, the plaintiff could not, upon a plea of infancy, enter a nol. pros, as to him, without discharging the other defendants, nor could a judgment be rendered for him, and against the'others, but the plaintiff must commence a new suit, leaving out the infant; 1 Chit. PI. 33; 3 Esp.

Trespass on the Case against the defendants for tlie default of Jairus Josselyn, their constable for the year commencing in March, 1844, in not levying or returning an execution against one Headle, delivered to him for collection. Plea, the general issue, and trial by the court, November Term, 1846, — Kellogg, J., presiding.

This was a complaint, founded upon the statute of November 1, 1843, authorizing the overseer of the poor of a town to commence a prosecution for bastardy in his own name, when the woman neglects, for the space of thirty days after her delivery, to charge any one with being the father of the child.

In Chancery. Appeal from the court of chancery. The orator alleged, in substance, that about the first of January, 1830, the defendants Fletcher and Rice entered into partnership, under the firm of Fletcher & Rice, for the purpose of transacting various kinds of business, and continued so to transact business until March 14, 1842, when they became insolvent; that while they were so doing business they became indebted to Hugh Henry in the sum of 82500, for money advanced to…

Indebitatus Assumpsit for labor, care and diligence of the plaintiff in instructing the defendants' school. Held: that it was to be presumed, that there was an application in writing, in pursuance of the statute, and received the record as evidence.

<p>When the teacher of a district school, without the use of any fraudulent or improper means upon his part, has obtained a certificate of his qualifications, in due form, from the superintendent of common schools for the town, it is no de-fence to an action, brought by the teacher against the district, to recover his wages, that the certificate was granted without any examination having been in fact made by the town superintendent.</p> <p>The supreme court will not, on exceptions, examine a question not decided by the county court.</p> <p>When a school district have once decided, that their prudential eommitteee shall consist of one person, they cannot, during the year for which such committee is elected, alter such determination, unless a vacancy occur in the office.</p>

<p>There is no prescribed form of words necessary to be nsed, in order to constitute an indorsement of a promissory note.</p> <p>A written guaranty of the payment of a promissory note, placed by the payee upon the back of the note for the purpose of negotiating it, whether with or without restriction, or with or without recourse, is the same, in legal effect, and for every practical purpose, as an indorsement, and may be treated as such.</p> <p>And such indorsement will operate to transfer the legal title in the note to any subsequent holder, notwithstanding the person, to whom the note is first transferred, is not named in the indorsement, and it is not made, in terms, to order, or bearer.</p> <p>And an indorsement thus made in the form of a guaranty will render the payee liable, as indorser, to any subsequent holder of the note, upon proof of the proper demand and notice.</p> <p>And the maker of such indorsement is also liable as guarantor, without proof of demand and notice, if the note be not paid at maturity. Davis, J.</p> <p>And such guaranty passes with the note, so that any subsequent bona fide holder has the right, as well against the guarantor, as against the maker, that appertained to the person-, to whom the note was first assigned. Davis, J.</p>

<p>Assumpsit upon a subscription for rebuilding, or repairing, a meeting house. Plea, the general issue, and trial by jury, June Term, 1846, — Kellogg, J., presiding.</p> <p>On trial the plaintiff gave in evidence the subscription paper, to which the defendant conceded he had signed twenty five dollars. The paper recited, that, whereas the Congregational Society in Randolph were making efforts to provide themselves with a better meeting house, and must raise the funds therefor by voluntary subscription, the subscribers agreed to pay to the treasurer of said society the sums annexed to their names respectively, for the purpose of building a new meeting house for said society, or thoroughly repairing the old one, as the subscribers should determine, by vote, at a meeting to be held at a specified time and place. And the conditions attached to the subscriptions were, that the subscribers should appoint a committee to superintend the expenditure of the tax, in the manner designated by their vote, — that the subscriptions should be divided into shares of twenty five dollars each, and each subscriber should be entitled to one vote for every share subscribed by him, — that the house, when completed, should be at all times pnder the control and for the use of the said Congregational Society, but should be opened for attending funeral services, or other extraordinary occasions of public religious worship, at the request of any of the stockholders, whenever the society should not want it for any of their stated or previously appointed meetings, — and that, upon the sale of the pews, the subscribers should be entitled to receive the whole amount of their respective subscriptions, or a pro rata proportion thereof, as the case might be. And the plaintiff also proved, that he was treasurer of the said Congregational Society, and that the meeting honse had been completed in all respects agreeably to the terms of the subscription.</p> <p>The defendant offered to prove, that, at the time of subscribing, he objected to doing so, for the reason that he was not a member of the Congregational Society, and did not attend meeting with them, and that he did not sign, until the agent, who procured the subscriptions, had assured him, that he wanted his signature to influence others to sign, and that, if he would sign, he should never be called on-to pay. To this testimony the plaintiff objected; but it was admitted by the court. The defendant also called J. R. Pem-ber as a witness, — who testified, that the same agent presented the subscription paper to him, before the defendant had signed, and wished him to subscribe for the purpose of inducing others to subscribe, and assured him, that, if he would subscribe, he should not be called upon to pay, but it should be optional with him, whether to pay, or not, and that he did subscribe twenty five dollars, and! had paid the same in full. To this evidence, also, the plaintiff objected ; but the objection was overruled by the court.</p> <p>The plaintiff requested the court to instruct the jury, that, even if they should believe, that the agent did promise the defendant, that he should not be called upon to pay his subscription, yet that such promise would be inoperative, as against the written contract of the defendant, and was not fraudulent upon subsequent subscribers, and could not avail this defendant; and also, that the facts testified to by Pember could not operate as a defence in this suit, — that inasmuch as the subscription paper contemplated raising no particular, or limited, sum, in default of which the subscribers should not be held, nor an excess of which would entitle the subscribers to a drawback, and inasmuch as Pember did pay his subscription in full, any conversation between the agent and Pember, or any promise made by the agent to Pember, at the time of subscribing, could not prejudice the subsequent subscribers, nor render their subscriptions void.</p> <p>But the court charged the jury, that if they should find, that the agent procured the subscription of the defendant, for the purpose of obtaining other subscriptions upon the faith of it, and, to induce the defendant to sign, did promise and assure him, that he should not be called upon to pay his subscription, they should return their verdict for the defendant; — -and that, if they should find, that the agent, at the time of obtaining the subscription of Pember, and for the purpose of obtaining other subscribers to sign upon the credit of it, did absolutely promise Pember, that he should not be called upon to pay his subscription, and did thereby induce Pember to sign, that would be a fraud upon all subsequent subscribers, — of which the defendant was admitted to be one, — and they should return their verdict for the defendant.</p> <p>Verdict for defendant. Exceptions by plaintiff</p> <p>1. This action cannot be sustained in the name of the treasurer ' of the society. The promise was not made to Blodgett, nor for his benefit. Hinds v. Stone, Brayt. 230. Arlington v. Hinds, 1 D. Ch. 431. 1 Chit. PI. 5. Piggott v. Thompson, 3 B. & P. 147. Gilmore v. Pope, 5 Mass. 491. Mann v. Chandler, 9 Mass. 335. 7 Johns. 112. Buckbee v. Brown, 21 Wend. 110. Sailly v. Cleaveland, 10 Wend, 156. Gunn v. Cantine, 10 Johns. 387. Treasurer of Vt. v. Cross et al., 9 Vt. 289. The subscription was made, to provide the Congregational Society with a meeting house, which was to be at all times under their control and for their use.</p> <p>2. The evidence, that the defendant signed under an assurance that he should not be called upon to pay, was correctly received. There was no real consideration for the promise, and therefore, if the promise can be entertained in law, it must be received subject to all the limitations and restrictions imposed upon it at the time. The assurances given to the defendant were fraudulent on the part of the agent, and vitiate the whole subscription. Middlebury College v. Adm’r of Loomis, 1 Vt. 189.</p> <p>3. The charge of the court, upon the testimony of Pember, was strictly within the law of the two cases of Middlebury College v. Adirír of Loomis, 1 Vt. 189, and Same v. Williamson, lb. 213. It makes no difference, that Pember afterwards paid his subscription,— since he was under no obligation to pay it.</p> <p>4. If this can be regarded as a promise to the plaintiff, then the suit must fail for want of consideration. The defendant gained nothing by his promise, and hoped to gain nothing. The plaintiff lost nothing, and was not subjected to any inconvenience, or charge, by reason of the promise. Chit, on Cont. 30. Boutelle et al. v. Coioden, 9 Mass. 254. Limerick Academy v. Davis, 11 lb. 113.</p> <p>The testimony offered should not have been received; for the subscription was a written contract, on good consideration,— Univ. of Vt. v. Bud, 2 Vt. 48; Treasurer of Vt. v. Cross, 9 Vt. 289,— and the testimony offered tended directly to avoid it. Jones v. Webber, 1 D. Ch. 215. Brown v. Bebce, lb. 227. Bradley v. Anderson, 5 Vt. 152. Farnham v. Ingraham, lb. 514. Bradley v. Bentley, 8 Vt. 242. Isaacs v. Elkins, 11 Vt. 679. Hatch v. Hyde, 14 Vt. 25. Gilman v. Moore, lb. 457. If the testimony tended to show a conspiracy between the parties, to defraud the other subscribers, this defendant could not avail himself of it. Peaslee v. Barney, 1 D. Ch.'331. Martin v. Martin, 1 Vt. 91. Gifford v. Ford, 5 Vt. 532. The cases of Middlebury College v. Loomis and Same v. Williamson were very different from this in many respects.</p>

Debt upon a judgment by default, rendered by one Hale, a justice of the peace, September 26, 1843, in a suit in favor of the plaintiff against the defendant, in which suit C. J. S. Scott was also summoned as trustee. This suit was commenced before one Tracy, a justice of the peace, and judgment was rendered in favor of the plaintiff, and the suit then came, by appeal, to the county court, June Term, 1844, and was continued from term to term.

Debt. The plaintiffs alleged, in their declaration, in substance, that on the 23d of October, 1841, they had a claim against the defendants’ intestate, which claim they presented to the commissioners of claims upon his estate ; that the commissioners allowed the claim at the sum of $620,16, and their report was duly accepted and allowed by the probate court; that the plaintiffs, by the consideration of the commissioners and of the probate court, recovered judgment against…

Trespass on the Case. The plaintiff alleged in his declaration, in substance, that the defendant sued out a writ of attachment against him, returnable before a justice of the peace, and caused it fio be served by attaching his property, and that thereupon the plain-liff made his necessary preparation for the defence of said suit and summoned his witnesses, and, on the return day of the writ, appeared at the time and place set for trial, with his witnesses, and remained there…

Ejectment for land in Brookfield. Plea, the general issue, and trial by jury, June Term, 1847, — Hall, J., presiding. On trial the plaintiffs claimed title to the premises in question by virtue of the levy of two executions in their favor against Robert Murray, and gave evidence tending to prove, that the defendants were in possession of the premises at the commencement of thiq suit.

Trespass on the Case, to recover for the loss of services of the plaintiff’s daughter, and the plaintiff’s expenses in taking care of her, occasioned by an injury received in consequence of the defendant’s want of care anrl prudence in blasting rocks near tbe highway in Northfield. Plea, the general issue, and trial by jury, June Term, 1847, — Hall, J., presiding.

Indictment for wounding and maiming a certain “ red, three year old steer.” After a verdict of guilty, the respondent moved in arrest of judgment, for .the insufficiency-of the indictment; which motion was overruled by the court, April Term, 1845, — Redfield, J., presiding. Exceptions by respondent.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported that there was due from the defendant to the plaintiff $34,55, and that the-facts were substantially as follows: In 1838 one Gilman T. Eaton, a son-in-law of the defendant, came to live with the defendant and manage his farm, under an agreement, that he should pay the taxes, and have half the produce and the defendant informed the plaintiff of the agreement, and told him, that if he…

Book Account. The original writ was made returnable before a justice of the peace, and was served by one Harry Tracy, who was specially authorized to serve it by 'an indorsement upon the back of the writ, signed by the justice before whom it was returnable, which was in these words, — “ 1 authorize Harry Tracy to serve and return this according to law.” The defendant pleaded in abatement the defect in the authorization; and the plaintiff demurred.

Assumpsit upon a promissory note for $ 100, dated November 9„ 1837, and made payable to one Abbott, or order, in April, 1841.

Assumpsit upon a policy of insurance. Plea, the general issue, and trial, by jury, November Term, 1847, — Redfield, J., presiding. On trial the plaintiff gave in evidence the policy declared upon, which was dated August .6, 1842, and insured to the plaintiff the sum of $1200 upon his house and shed, represented unincumbered, and other property connected therewith, for the term of six years.

Trover for sixty four sheep and two hundred pounds of wool. Plea, the general issue. At the November Term, 1844, there was a trial and a verdict for the plaintiffs for $91,58 damages, and the ■defendant Harvey Tilden reviewed, but the other defendant did not. At the April Term, 1S45, there was a verdict for the defendant Harvey Tilden, and the plaintiffs reviewed. Trial by jury, November Term, 1845, — Redfield, J., presiding.

This was a complaint, under the statute, charging the defendant as the father of the plaintiff’s bastard child. Plea, not guilty, with notice of special matter of defence. The complaint was dated February 27, 1845.

Appeal, from an order of removal, in due form, of one William Baker, a pauper, from Berlin to Morristown, made by two justices of the peace, pursuant to the statute.

” Pleas, that the pauper’s last legal settlement was not in Plymouth, and that she was not chargeable to Northfield at the time the order of removal was made, and trial by jury, November Term, 1847, — Redfield, J., presiding.

Petition for a new trial, for the alleged cause, that the petitioner, by accident, failed to enter bail for a review of the case in the county court, within the required time.

In Chíncsii. Appeal from the court of chancery. The substance of the bill, answers and testimony is fully stated in the opinion of the court. The court of chancery, November Term, 1847, — Redfield, Chancellor, — dismissed the bill; from which decree the oratrix appealed. cited Souverbye v. Arden, 1 Johns.

<p>Trespass on the case against the defendant, as sheriff of Washington county. The declaration contained two counts, — the first for not assigning to the plaintiff, upon request, a jail bond signed by James P. Pike and B. W. Poor, — the second for negligently permitting said Pike to escape after he had been committed to jail in Washington county upon a writ in favor of the plaintiff. The parties submitted the case to the court upon a statement of facts substantially as follows.</p> <p>On the 17th of July, 1844, the plaintiff prayed out a writ of attachment against the body of James P. Pike, returnable before a justice of the peace, directed to any sheriff or constable in the state, and with a declaration in one count for goods, &c. sold and delivered; and the plaintiff at the same time filed with the justice, who signed the writ, an affidavit, in due form of law, that he believed Pike was about to abscond and had property secreted. This writ, on the 20th of July, was delivered to the defendant, who was then sheriff of Washington county, to serve and return, and he served it at Montpelier, on the same day, by arresting the body of Pike and committing him to the jail in Washington county, and made due return of the process. The same day the defendant received a jail bond, signed by Pike as principal and by B. W. Poor as surety, and admitted Pike to the liberties of the prison, and Pike, on the same day, departed from the liberties of the prison, without being in any manner discharged from his commitment. The suit against Pike was continued from time to time until the 8th of October, 1844, when it was tried by jury, the plaintiff first obtaining leave to amend his declaration by adding a count for money had and received; and the jury returned a special verdict in favor of the plaintiff for thirty five dollars, — five dollars being upon the count for money had and received, and thirty dollars upon the original count for goods, &c. sold and delivered, and judgment was rendered for the whole sum. The defendant appealed, and the suit was entered in the county court; but the defendant was subsequently defaulted, and judgment was rendered for the plaintiff to recover the sum of thirty five dollars, found by the jury at the justice’s court, and his costs. Within fifi teen days after the judgment was rendered in the county court the plaintiff took out execution thereon, dated June 18, 1845, and, on the 30th of June, delivered it to the defendant, who was then sheriff, to collect and return. The defendant demanded of the jailor the body of Pike, July 7, 1845, and the jailor neglecting to deliver the same, the defendant, on the same day, returned the execution to the office of the clerk of the county court, with a return of non est in-ventus indorsed thereon. When Pike departed from the'prison, he had no property, but was poor; and previous to the commencement of this suit the plaintiff demanded of the defendant an assignment of the jail bond, — which was refused.</p> <p>Upon these facts the county court, December Term, 1847,— Davis, J., presiding, — rendered judgment for the defendant. Exceptions by plaintiff.</p> <p>The amendment made before the justice by the addition of a new count for another cause of action, not inconsistent with the form of the action or the jurisdiction of the court, was a matter resting in the sound 'discretion of the court, and is not subject to1 revision in a collateral manner. The sheriff, when sued for an escape, cannot allege error, either in the process, or judgment; and even if there were any irregularity in the proceedings previous to the rendition of final judgment, he cannot avail himself of this in a collateral action. 1 Aik. 339. Bissell v. Kip, 5 Johns. 89. 2 Saund. R. 101 y. Bentley v. Donelly et al., 8 T. R. 127. Bull v. Steioard, 1 Wils. 255. Cable v. Cooper, 15 Johns. 152. The addition of a new count for another cause of action, when allowed by the court, and a recovery in part upon such new count, does not, of itself, discharge the sheriff, or even bail, where the verdict and judgment show with certainty the extent of their liability upon the original declaration. The recovery upon the new count does not increase the sheriff’s liability; but he retains the debtor in custody, subject to all legal claims, which the creditor may have, and which may be legally embraced in the judgment.</p> <p>By the provisions of the statute, — Rev. St. 456, § 18, — when a person, committed to jail on mesne process, has been admitted to the liberties of the jail yard on giving a bond, and the bond has been broken, the same “ shall be assignable to the creditor,” who may maintain an action thereon in his own name. An action can be .sustained by the creditor against the sheriff, for refusing to assign such bond, when a demand has been made. Simmons v. Bradford, 15 Mass. 82. Heppel v. King, 7 T. R. 370.</p> <p>1. No action will lie against a sheriff, for refusing to assign a jail bond to the execution creditor. The statute does not impose any such obligation upon him, and, from the 20th section of chapter 103 of the Revised Statutes, it is perfectly evident, that the legislature intended to leave it at the option of the sheriff, whether to assign his security to the creditor, or not.</p> <p>2. If the plaintiff by his own act had discharged the bail, it is very clear, that no action could be maintained by him against the sheriff for refusing to assign the bail bond, and quite as clear, that he could have no claim upon the sheriff for an escape.</p> <p>3. That any amendment of a declaration, whereby the liability of the bail is increased, or a new cause of action is introduced, will discharge bail, and also attachments, as against persons having an intermediate interest in the property, is settled beyond dispute,— and this, too, without the intervention of any order or rule of court for that purpose. Miller v. Clark, 8 Pick. 412. Ball v. Claflin, 5 lb. 303. Haven v. Snow, 14 lb. 28. JLevett v. Kibblcwhite, 1 E. C. L. 459. Wright v. Brownell, 3 Vt. 435. Aiken v. Richardson, 15 lb. 500. Willis v. Crooker, 1 Pick. 204. Mason v. Waite, 1 lb. 452. Brigham v. Este, 2 lb. 425. Seely v. Brown, 14 lb. 177. Danielson v. Andrews, 1 lb. 156. Fairfield v. Baldwin, 12 lb. 388. Putnam v. Hall, 3 lb. 445.</p>

<p>If a sheriff’s sale of property be valid as against the debtor, it is also valid as against his creditors, so far as it can he sustained independently of any consent of the debtor, and is free from all collusion on his part.</p> <p>Any informality in the proceedings of the sheriff; upon such sale, will not defeat the title of the purchaser, if the proceedings be substantially in conformity to the law, even where it appears upon the face of the return.</p> <p>If the return of the officer show a regular sheriff’s sale, that is conclusive between the parties.</p>

Declaration for betterments. The defendants recovered final judgment against the plaintiffs, in an action of ejectment, December Term, 1844, for seventy five acres, undivided, in the third division of the original right of William Reed in Hydepark, — the lot being called two hundred acres.

<p>Where the plaintiff, having contracted to labor for the defendant six months, at a specified price for the term, was taken unwell, and left the defendant’s service, and was so unwell, for about a month, that he was unable to perform the full labor of a man, and then he recovered his health, but did not return to the defendant’s employment, it was held, that he was entitled to recover for his .services, upon a quantum meruit, for the time he labored.</p> <p>And it was also held, that, if this were not so, an offer by the defendant, after the plaintiff had left his service, to pay to the plaintiff the a mount due to him, at the rate of compensation fixed by the original contract, was a waiver of all claim of forfeiture.</p>

<p>Whether, or not, a sale of personal property has been followed by a sufficient change of possession to render it valid, as against the creditors of the vendor, is always a question of fact, when there is any testimony tending to prove such change of possession, and should be submitted to the jury, under proper instructions. The change necessary is only such a divesting of the possession of f the vendor, as any man, knowing such facts as could be ascertained upon reasonable inquiry, would be bound to understand was the result of a change of ownership.</p>

Trespass for taking a quantity of hay. Plea, the general issue, with notice of special matter of defence, and trial by jury, June Term, 1847, — Davis, J., presiding.

<p>In Chancery.</p> <p>Appeal from the court of chancery. The facts in the opinion of the court-. are fully stated</p>

<p>Where there are three listers of a town, and two, without the concurrence of the third, have done any act, which, if done by all, would subject them to damages, the two may be held responsible therefor, if the matter be alleged in proper form.</p> <p>When an appeal to the selectmen is taken from the assessment, by the list-ers, for money on hand, debts due, &e., the effect is to suspend the power of the listers to act upon the subject.</p> <p>Where an assessment has been made by the board of listers, upon full hearing, quare, whether one of the listers, even with the consent of another, has power to vacate the assessment.</p> <p>Where the listers of a town made an assessment for money on hand and debts due, upon full hearing, and the person assessed appealed to the selectmen, and then one of the listers, with the consent of another, went with the person assessed to the town clerk’s office and entered upon the list, that the assessment was vacated, and, at the meeting of the selectmen, one of the listers informed the selectmen, that the assessment had been vacated, and so no action was had by the selectmen upon the matter, and the person assessed did not attend before them, it was held, that it was competent for the listers to treat the entry upon the list, that the assessment was. vacated, as an error, and restore the assessment as it stood originally.</p> <p>Listers, in malting assessments for money on hand, debts due, &c., act upon their best discretion and judgment; and, when they have jurisdiction of the person and subject matter, they are not responsible for any error of judgment; an action cannot be sustained against them, for assessing a person for money on hand, when he had none, unless it appear, that they were actuated by malice, or corruption.</p>

This was a petition by Deluis Welman, representing himself to be unable to meet his debts and engagements, and praying for the benefit of the bankrupt law. The petition was filed March 3,1843, and no proceedings having been had upon it, in consequence of the clerk’s refusing to issue the usual order, the petitioner filed his motion for an order of notice to creditors and others to show cause, why he should not be declared a bankrupt.

Ejectment. It appeared, that one of the defendants claimed title to the premises in question under a mortgage from the others, and that the mortgagors were in the actual occupancy of the premises ; but, there being no evidence, that the mortgagee was in actual possession, it was objected, that the action could not be maintained against him.

In this case a verdict was taken for the plaintiff at a former term, subject to the opinion of the court on certain questions reserved at the trial. It appeared, that the Bank of the United States, created by congress in 1816, had established a branch, or office, at Burlington, in Vermont, which was several years in operation, and continued to do business until September, 1835.