Volume 21 — Vermont Reports

<p>The facts in this case sufficiently appear by the opinion of the court, which Was delivered by</p>

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows : On the sixteenth day of March, 1846, the plaintiffs and defendants entered into a written agreement, by which the plaintiffs agreed to perform, in the most substantial and workmanlike manner, to the acceptance of the engineer of the Vermont Central Rail Road Company, all the stone work, masonry and blasting on the three miles of rail road taken by…

This was a complaint under the statute in reference to bastardy.

Assumpsit upon a promissory note. Plea, the general issue, and trial by the court, November Adjourned Term, 1847, — Bennett, J., presiding.

Assumpstt upon a promissory note for five hundred dollars, dated September 17, 1841, and made payable to the plaintiff, or order, in one year from date, with interest annually. Plea, the general issue, and trial by jury, March Term, 1846, — Bennett, J., presiding.

Assumpsit, to recover the interest due upon several promissory notes, bearing date June 6, 1842. The defendant pleaded the general issue, and also his certificate of discharge in bankruptcy under the act of Congress of 1841. The plaintiff replied, that the notes were not provable under the commission in bankruptcy, and so were not barred. Trial by the court, November Adjourned Term, 1847. —Bennett, J., presiding. On trial the facts were proved as follows.

This was an action of covenant for the non-payment of rent reserved in a lease of twenty five acres of land, in Johnson, from the plaintiffs to Lemuel Chandler, dated February 27,. 1832, and the title to which it was alleged had passed, by several mesne assignments, from Chandler, to the defendant; the suit was commenced before a justice of the peace, and came to the county court by appeal.

Trustee Process. By the writ the sheriff was commanded to summon “ Christian Rodosson, of Burlington in the county of Chittenden, trustee of the said J‘oel Spalding, to appear before said court,” &c., “and make disclosure according to law, of the goods, chattels, rights or credits of the said Joel Spalding, which the said Rodosson may have in his hands or possession.” The process was served by delivering to the trustee personally a copy in due form of law.

<p>This was a petition to the county court, that the judgment of a justice of the peace in favor of the defendant against the petitioners might be vacated, and the case be entered in the county court for trial, — founded upon chapter thirty three, section eight, of the Revised Statutes.* _ Trial by the court, March Term, 1847, — Ben-nett, J., presiding.</p> <p>It was alleged in the petition, that the defendant, on the twenty sixth day of May, 1846, prayed out his writ of attachment against the petitioners, in which he demanded damages, one hundred dolars, for an alleged breach of contract on the'part of the petitioners, in not permitting him to complete certain labor, which they had agreed to permit him to perform at a price agreed upon, and upon which he had commenced, — which writ was made returnable before a justice of the peace, June 29, 1846, and was duly served upon the petitioners; that the petitioners suffered judgment to be rendered against them upon default, and the case was continued, for assessment of damages, to the tenth day of August, 1846; that the petitioners then appeared, and claimed, that ,the damages should be assessed by a jury; that the justice refused to allow a jury, and again continued the case to September 9,1846; that the petitioners again appeared at that time, and claimed, that the damages should be assessed by a jury; but that the magistrate again refused to cause a jury to be summoned, and proceeded himself, and, after hearing the parties, assessed the damages at $37,88, and rendered judgment against the petitioners for that amount.</p> <p>On trial, the court found the facts to be as alleged in the petition, but decided, that this was not a case which would authorize them to exercise the discretionary power, conferred upon them by statute, to vacate the judgment of the justice, and dismissed the petition, with costs. Exceptions by petitioners.</p> <p>1. There is but one statute in this state, relating to the manner of assessing damages upon default; — Rev. St., chap. 25, sec. 32.* This refers to suits coming within the jurisdiction of a justice, as well as to suits tried in the county court. If so, the justice, in this case, had the power, at least, to permit an assessment of damages by a jury; and having the power, he was bound, upon the application of either party, to exercise it.</p> <p>The statute, — Rev. St., ch. 26, sec. 32, — provides, that either party to a suit before a justice shall be entitled to a trial by jury. By “ trial ” is meant the finding of the facts wherein the parties are at issue. The issue may be of all the facts set forth in the plaintiffs’ declaration, or there may be a denial of only one fact. By a default the cause of action is admitted, but there is still an issue left, as to the amount of damages, and here the party has a right to a trial, and upon that trial he has a right to a jury.</p> <p>2. But if the statute does not make it peremptory upon the justice to allow the party a jury in such case, then there is no statute, which takes away this privilege, which was a right at common law. By the common law, in all cases where damages are recovered, the damages regularly ought to be assessed by a jury; and if they are not, the verdict shall be void. So, if judgment be by confession but for no certain sum, in an action sounding in damages, the court cannot assess the damages, but a writ of inquiry should be executed. 3 Com. Dig., Damages E. Dunbar v. Lindenberger, 3 Mumf. 169. Petersd. Ab., Damages VI., A, note. Staple v. Hayden, 1 Salk. 216. Eadem v. Lutman, 1 Str. 612.</p> <p>The case is not within the purview of the statute, under which it is brought. That statute applies to a case, where the defendant “ was unjustly deprived of a hearing in the assessment of damages.” Here the party had a full hearing, in reference to which no complaint is made, except that it was not by jury. A reference to the justice act shows, that a jury is only provided for upon the trial of a cause, and not upon proceedings after judgment. The justice can make up the damages immediately, or when and where he pleases, and without farther notice to the defendant.</p>

<p>[In Chancery.]</p> <p>Appeal from the court of chancery. The facts are sufficiently stated in the opinion delivered by the court. The orator’s bill was dismissed by the court of chancery, with costs; from which decree the orator appealed.</p>

<p>Where a bond is executed, with a condition that it shall become absolute in case certain services are performed by the obligee within a specified time, and the obligee tenders performance of the services within the time, the refusal of the obligor to accept such performance will have the effect of actual performance, so far as to give to the obligee a right of action upon the bond.</p> <p>And if the bond, in such case, contain the farther condition, that it shall become void, in case the obligor, upon the performance of the services by the obligee, shall execute and deliver to tire obligee a deed of certain land, a demand of the deed within a reasonable time after the obligee becomes entitled to it, and before actiori“krought, if a demand be necessary to perfect the right of action, is sufficient.</p> <p>And the obligor is not entitled to prove, as a defence to a suit upon such bond, that after the breach of the condition upon his part, and after suit brought therefor, he tendered to the obligee a deed of the land.</p> <p>But an instruction to the jury, in such case, that the obligee is entitled to recover the value of the land at the time it should have been conveyed, with interest upon that value, is erroneous. There-not having been a receipt by the obligor of the entire consideration of the conveyance, but only a refusal of a tender of services to be performed, the recovery should be restricted to the extent of the obligee’s actual damages.</p> <p>Where the services-to be performed by the obligee, in such case, consist in the making of a specified number of pairs of boots, for which the obligor is to provide leather, the refusal of the obligor to furnish the leather is a breach of the condition upon his part, sufficient to work a forfeiture of the bond.</p>

<p>The defendant contracted to convey in his boat two loads of wood for the plaintiff to Port Henry, at a specified price per cord; and it was agreed, that if the defendant could not get out of the creek, by which the wood lay, with a full load, the plaintiff was to complete his load at a certain wharf. And it was held, that the failure of the plaintiff to complete the defendant’s first load at the wharf, as agreed, thereby compelling the defendant to sail to Port Henry with two thirds of a load, did not absolve the defendant from his obligation to convey the second load, or at least so much of it, as he could carry out of the creek; but that the defendant must perform, within the time agreed upon, so much of the contract as he could, and have recourse to his remedy against the plaintiff for the breach of contract in not furnishing full loads.</p>

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

Indebitatus Assumpsit for money paid, laid out and expended. Plea, the general issue, and trial by the court, September Term, 1846, — Royce, Qh. J., presiding. It appeared, that the plaintiff and defendant, as sureties, had' signed a note with one Farnsworth, who was the principal, to the town of Fairfield ; and that the plaintiff had subsequently paid the note, without suit, but upon demand of payment by the town.

Assumpsit on an award. Plea, the general issue, and trial by jury, November Adjourned Term, 1848, — Royce, Ch. J,, presiding.

Trespass on the Case for the neglect of the defendants to remove certain paupers from the town of Sheldon, whereby it was alleged, that Sheldon had been obliged to incur expenses for their support. Plea, the general issue, and trial by the court, upon a case stated, April Term, 1848, — Royce, Ch. J., presiding. The facts agreed upon were as follows.

Trespass on the Case to recover for an alleged injury, by the the defendants, to the plaintiff’s reversionary interest in land in Highgate. Plea, the general issue, and trial by the jury, September Term, 1848, — Royce, Ch. J., presiding.

Ejectment for the south part of a house in St. Albans, called the Nason house. Plea, the general issue, and trial by the court, November Adjourned Term, 1848, — Royce, Ch. J., presiding.

Indebitatus Assumpsit 'for money had and received. Plea, the general issue, and trial by jury, December Term, 1845, — Bennett, J., presiding.

Trover, to recover the value of goods sold by the plaintiff to one Jonathan S. Preston on the first day of July, 1844.

Trespass, for taking “ three pits of charcoal, partly burned and unfinished.” The suit was referred, by consent of parties, and the referee reported the facts substantially as follows. The charcoal was taken by the defendants by virtue of legal process in favor of J. B. Huntley & Co. against the plaintiff, — the defendant Huntley being one of the plaintiffs in that suit, and the other defendant being the attaching officer who served the process.

Trespass for taking certain personal property. Thé facts were agreed by the parties to be as follows. The property in question belonged to the plaintiff, and was taken by the defendant. The defendant was constable of Orwell, and held for collection certain rate bills and warrants, for state and town taxes in Orwell, voted and assessed upon the list of 1847; which included a state and town tax against the plaintiff, as agent of Thomas A. Hammond.

Edric Adams and others, heirs of Friend Adams, deceased, after a decree of the probate court allowing the administrators’ account, and determining the'amount of advancements to the several heirs, and ordering partition and distribution of the real and personal estate among the several heirs, and after the time for taking an appeal therefrom had expired, petitioned the probate court to re-open and revise the- decree, so far as to allow a farther examination and adjustment of…

Trial by jury, December Term, 1848, — Bennett, J. presiding.

Account, in several counts, charging the defendant as bailiff, and bailiff and receiver, for the common benefit of the, plaintiffs and defendant, of a quantity-of oats, corn, hay, peas and wheat, in… Held: that, previous to a division of the crops, the lessor was not a tenant iil common of them, and had no interest whatever in them. Applying that rule to this case, the defendant had no interest in the crops; he took them as the property of Austin.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts as follows, The plaintiffs claimed to recover for brandy and gin sold by them to the defendant May 20, 1846. At the time the account accrued, the plaintiffs, as partners, were dealing in spirituous liquors in the city of New York, and the defendant was an inn-keeper at Brandon, in Vermont.

Indebitatus Assumpsit for money had and received. Plea, the general issue, and trial by the court, September Term, 1847,— Hall, J., presiding. On trial the facts appeared to be as follows. The defendant, on the twenty second of November, 1845, shipped, at Burlington in this state, eleven tubs of butter, three casks of cheese and six bags of* beans, to Smith & Bishop, commission merchants at Boston, for sale upon commission.

Debt upon a jail bond, brought in the name of the sheriff of the county of Rutland. The writ was originally made returnable before a justice of the peace, and was directed, in the body of it, in these words, — “To any high baliff or constable in the state ; and whereas no legal officer can seasonably be had, therefore, to John F. Knight, Jr., of Rutland, an indifferent person, to serve and return,” — and the return of service upon the writ was signed by Knight.

Trespass on the Case against the defendant, as sheriff of the county of Rutland, for not levying an execution in favor of the plaintiffs against Joel M. Rogers and Jonathan C. Dexter. Plea, the general issue, and trial by the court, September Term, 1847,— Hall, J., presiding.

Trover for five cases of cassimers. Plea, the general issue, and trial hy the jury, September Term, 1845, — Williams, Ch. J., pre» siding. .

Trespass for taking personal properly. Plea, the general issue, with notice of special matter of defence, and trial by jury, September Term, 1847, — Hall, J., presiding.

Ejectment, for certain premises in Danby. Plea, the general issue, and trial by jury, September Term, 1847, — Hall, J., presiding. The writ was dated March 3, 1843, and was served upon the defendants March 22, 1843.

Appeal by the administrator, with the will annexed, of Joab Smith, deceased, from the decision of the commissioners appointed by the probate court, in allowing a claim against the estate in favor of the plaintiffs, founded upon a promissory note. In the county court the suit was referred, and the referees reported the facts as follows.

Appeal by the defendant from a decree of the probate court, charging him, as executor of Coolidge White, deceased, with ten sheep and with one third of the personal estate of the testator, devised by him to his wife.

The objections filed by the appellant were, that the said instrument in writing was not signed by the said Samr uel Adams, nor by any other person in his presence and by his express direction ; and that the said instrument was not attested and subscribed by three credible witnesses in the presence of the said. Samuel Adams and of each other; and that the said instrument was not the last will and testament of the said Samuel Adams.

[In Chancery.] Appeal from the Court of chancery. The orators, alleged in the bill, in substance, that the orator Manly became the owner of certain promissory notes, executed by Ashbel Humphrey, William Humphrey and the defendant Ormsbee, which were secured by a mortgage of certain real estate, executed by Ashbel Humphrey; that Ashbel Humphrey conveyed the mortgaged premises to Ormsbee, under an agreement, that Ormsbee should pay the mortgage notes and indemnify Ashbel…

[In Chancery.] Appeal from the court of chancery. The orator alleged, in his bill, that the defendant Griggs, on the 20th of April, 1833, having purchased a fafm of one Henry A. Allen, executed to him his promissory note for $370.77, as part of the consideration, which was taade subject to a condition, that Griggs should retain that amount 0f the purchase monéy as security agairtst a claim which the defendant Thrall had upon said farm by an attachment in his favor against…

Book Account. The plaintiff’s writ bore date October 25, 1844. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows.

Assumpsit upon a promissory note for two hundred dollars, dated September 8, 1846, executed by the defendant, and made payable to the order of John Crarey, in four months from date, and by said Crarey indorsed to the plaintiff. Plea, the general issue, and trial by jury, June Term, 1848, — Davis, J., presiding.

Assumpsit. The plaintiff alleged in his declaration, that on the eighth day of December, 184.6, he held a mortgage, executed by one Squires, of certain premises known by the name of the ‘‘ Searsburgh tannery,” which had become due and payable, and that Squires had conveyed his interest in the premises to the defendants, who were in possession of .them, and that the defendants, in consideration that the plaintiff would permit them to use and occupy the premises, then promised…

Trustee Process. The writ was served upon the trustees September 8, 1846. The trustee Hurd, who answered as well for the other trustee as for himself, disclosed the facts substantially as follows.

Book Account. Judgment to account was rendered, and an auditor was appointed.

Assumpsit upon a promissory note for $246,70, dated August 3, 1841,-and made payable to Josiah Stowell, or bearer; — but it was not alleged in the declaration, in what capacity, or by what right, the plaintiff brought the suit.

Ejectment for land in Putney. The plaintiff described in bis declaration three several parcels of land, of which he demanded the seisin and peaceable possession. The parties submitted to the court a plan of the premises referred to on the trial, upon which the first parcel described in the declaration was marked C I, the second parcel was marked C 2, and the third parcel was marked C. The parties agreed upon a statement of facts substantially as follows.

<p>Appeal from the probate court. The plaintiff declared in account, in common form, for an adjustment of the dealings between himself and the testator, Paul Wheeler, as partners, and also declared in book account. Judgment to account was rendered, and an auditor was appointed.</p> <p>The auditor reported that there was due to the plaintiff, on book account, one dollar and twenty one cents. In relation to the action of account the auditor reported, that the plaintiff and the testator, from 1820 to 1833, were copartners in the practice of medicine and surgery, under an agreement, that each partner should furnish an equal amount of capital, and perform an equal amount of business, and share equally in the profit and loss of the business; that the partners had settled their partnership accounts to January 1st, 1828; that from 1828 to 1833 the plaintiff performed much the greater proportion of the labor of the firm, the value of the excess above his share amounting, with interest to the time of audit, to the sum of $1199,40; and that the plaintiff had expended, during the existence of the copartnership, for the benefit of the firm, various sums of money, one half of which, with interest, amounted to $469,73.</p> <p>The auditor farther reported, that no accurate data were furnished to him, by which he could arrive at any satisfactory result as to the true state of the partnership account; that no account bad been kept between the partnership and the individual members thereof, nor did it appear, from any source, how much each partner had drawn from the joint funds, or how much the testator expended from his own funds for partnership purposes; that each partner had been accustomed to collect accounts and notes and receive money for services and medicine, without keeping an accurate account thereof, or dividing the same; that the plaintiff testified, that he believed, that the testator had drawn as much from the joint funds., since January 1st, 1828, as he had himself, — but that it did not appear, that this belief was the result of any careful investigation upon the subject; and that from this testimony the auditor found, that the testator had drawn about as much from the partnership funds as had the plaintiff although he had no data, from which to form a definite or accurate opinion. Upon this part of the case the auditor submitted to the court the question as to the plaintiff’s right to reoover.</p> <p>The county court, September Term, 1848, — Kellogg, J., presiding, — .held, that the plaintiff was not entitled to recover upon his declaration on account, and rendered judgment for him for the balance found due by the auditor on hook account. Exceptions by plaintiff,</p> <p>1. The plaintiff is entitled to recover for the charges made by him for extra services. That there was an understanding between the partners, that each should be entitled to an allowance for services of this description, sufficiently appears, from the terms of the copartnership contract. And the action of account is the appropriate remedy,</p> <p>2. The objection, that the auditor did not adjust all the transactions of the partnership, that were open and unadjusted, assumes what the report does not show to be a fact. If an auditor adjust all matters, claimed by the parties to he open and unadjusted between them, he does all the law requires, and his report cannot be disturbed upon the ground, that he did not determine issues not joined before him. Rev. St. 220, § 9. 1 Sw. Dig. 726. Williams v, Hmshaw, 1 Pick. 79; 11 Pick. 378.</p> <p>Evidence that the plaintiff performed more than half the labor of the partnership should not have been received, as it had no tendency to maintain- the declaration. The claim set up in the declaration was, that the testator had received more than his share of the partnership funds; the proof offered was, that he had done less than his share of the partnership business. Had he been thus remiss, yet if he received more money than he earned he had a right to retain it against his copartner. And the auditor finds in substance that the testator did receive no more than his just proportion of the partnership funds. This fie had a right to retain without reference to the question, whether he did more or Jess work than his copartner.</p>

<p>[In Chancery.]</p> <p>Appeal from the court of chancery. It was alleged in the bill, that the orator, Stephen Mann, on the second day of February, 1841, conveyed to the defendant certain real and personal estate, and received from him a bond, in the penal sum of four hundred dollars, conditioned for the support of the orator during his life; that the orator resided with the defendant, and was supported by him, until March 25, 1845, when the defendant induced him to surrender and discharge the bond upon receiving from the defendant two notes, for twenty five dollars each, payable in produce; that the consideration for this surrender was grossly inadequate; that the orator was naturally of weak mind and had become imbecile through age ; and that the defendant procured the surrender of the bond by taking advantage of the orator’s incapacity and weakness of intellect and of the influence which he had acquired over him by reason of his long residence in the defendant’s family. And the orator prayed, that the discharge upon the bond might be decreed to be cancelled, upon his surrendering' to the defendant the two notes executed by him, (which he offered to do,) and the bond be re-delivered to the orator, to remain in full force, according to its terms, and for general relief.</p> <p>The defendant answered, denying that there was any inadequacy in the consideration for the surrender of the bond, or that he procured the surrender by fraud, or by the exercise of any undue' influence, or that the defendant was incapable of transacting his business ; but he alleged, that on the occasion of the execution of the bond, and as the consideration therefor, he received from the orator real and personal estate of the value of $310,87, that he had paid for the orator, at his request, $60, that he had' supported the orator four years and two months, at an expense of $1,50 per week, amounting to $324 for the whole time, and that at the earnest request of the orator, without solicitation upon his part, he received the discharge of the bond and executed his two notes, for $25 each, as alleged in the bill.</p> <p>The answer was traversed, and testimony was taken upon each side, the substance of which is sufficiently stated in the opinion of the court.</p> <p>The court of chancery dismissed the bill.; from which decree the orator appealed.</p> <p>cited Jackson v. King, 4 Cow. 207; 1 Story’s Eq. 239, 234-7 ; Hall, Ex’r, v. Perkins, 3 Wend. 626; Conant, Adm’r, v. Jackson et al., 16 Vt. 350 ; Malin v. Malin, 1 Wend. 659; Earl of Chesterfield v. Jansen, 2 Ves. 155; 1 Atk. 352 ; Taylor et al. v. Ohee, 3 Price 83 ; Clarkson v. Hansway, 2 P. Wms. 203; Osmond v. Fitzroy, 3 lb. 129; Porthington v. Al~ exander, 2 Vern. 189; Holden v. Crawford, 1 Aik. 390.</p> <p>cited 1 Fonbl. Eq. B. 1, ch. 2; Montague’s Case, 3 Chañe. Cas. 107; 1 Story’s Eq. 238, 241; Osmond v. Fitzroy, 3 P. Wms. 129 ; Willis v. Jarnegan, 2 Atk. 251; Farnam v. Brooks, 9 Pick. 212; Conant, Adm’r v. Jackson et al. 16 Vt. 335.</p>

[In Chancery.] Appeal from the court of chancery. The facts were as follows. Held: that a regular assignment of the mortgage, accompanied by a delivery of the notes, without indorsement, authorized the assignee to receive payment of the notes. In Lang-don et al. v. Keith, 9 Vt. 299, there was a regular assignment of the whole mortgage, and of all the mortgage notes except one.

Book Account. Judgment to account was rendered and an auditor was appointed, who reported substantially as follows. The plaintiff’s account, which amounted to $72,98, consisted of charges for his expenditures as highway surveyor in the town of Andover.

Indebitatus Assumpsit for money had and received. Plea, the general issue, and trial by jury, May Term, 1848, — Redfield, J., presiding. On trial the facts appeared as follows.

Assumpsit upon a promissory note. The defendant pleaded in abatement, that when the writ in this suit was sued out and served upon him, there was pending in court a prior suit against him, in favor of the same plaintiff and for the same cause of action.

Assumpsit for a breach of contract of marriage. Held: that the defendant’s promise might be implied from proper circumstances;— but in the. former case it was proved, that the defendant had acknowledged, that he did expressly promise to marry the plaintiff;— and in the lather case letters from the defendant to the plaintiff were produced, of which the learned judge, who delivered the

Trespass on the Case against the defendant as the keeper of a ferocious dog, which he knew was accustomed to bite mankind, for an injury by the dog’s biting the plaintiff. Plea, the general issue, and trial by jury, May Term, 1848, — Redfield, J., presiding.

In this case, which was argued at a previous term upon excep tions taken in the county court, and which the court had retained for advisement, the defendant, at the present term, filed a motion to dismiss the suit, on account of the decease of the plaintiff, — clairiling that the action, which was trespass on the case for the default of the defendant, as sheriff, in not keeping property attached' by his deputy on mesne process and not delivering it to the officer who held…

Trespass on the Case to recover for an injury, which the plaintiff alleged he had sustained by reason of the insufficiency of a highway, which it was the duty of the defendants to maintain. Plea, the general issue, and trial by jury, — November Term, 1847,— Kellogg, J., presiding.

Trespass on the Case against the defendant, as sheriff of the county of Windsor, for the escape of one Pingry, a debtor of the plaintiffs, from the liberties of the jail. The facts were agreed to be as follows.

Trespass for taking a draft chain. Plea, the general issue, with notice of special matter of defence, and trial by jury, May Term, 1847, — Redfield, J,, presiding. On trial the facts appeared as follows. In the year 1816 there was duly formed and organized in the town of Barnard a school district, numbered eleven, which adjoined the town, of Pomfret, and which ever after continued to be organized and to do business.

Scire Facias against the defendant, as bail for one Pliny E. Davis upon mesne process in favor of the plaintiff against said Pliny. The plaintiff alleged, that he recovered judgment in his suit against Pliny E. Davis on the first day of November, 1842, and that the execution which was obtained against him was returned non est inventus December 30, 1842.

Debt on Judgment. The defendant pleaded as follows: “ And now the said Clark Chamberlin, the defendant, comes and * defends &c., when &e., and for plea says, that the said plaintiff ‘ ought not to have or maintain his aforesaid action thereof against ‘ him, because he says, that at the time of rendering the said sup- ‘ posed judgment in the plaintiff’s declaration mentioned, to wit, on ‘ the second day of December, 1837, if any such was ever rend- ‘ ered, he, the defendant,…

Book Account. Judgment to account was rendered, and auditors were appointed, who reported the facts substantially as follows. The plaintiff presented an account for services and disbursements by him, as attorney, counsellor and solicitor for the defendant in sundry suits, from 1839 to 1845.

Assumpsit for money had and received. The writ was made returnable to the December Term of the county court, 1847. At that term the defendant appeared and pleaded the general issue, and demanded a trial by jury.

Assumpsit. The plaintiff alleged, in the third count of his declaration, that, on the seventh of December, 1848, he agreed with Thompson & Kent, by contract in writing, that he would deliver all the… Held: that the plaintiff might recover for them upon the testimony of witnesses, other than the engineer, who estimated the amount drawn and thus used.

Assumpsit upon a promissory note, dated April 21, 1845, for sixty ttvo bushels of good coarse salt, to be delivered between the day .of the date and the middle of January, 1846. Pleas, the general issue, and tender. Trial by jury, June Term, 1848, — Redfield, J., presiding. On trial the plaintiff gave in evidence the note declared upon, and proved the value of good coarse salt at the time and place of delivery.

Trespass for taking five sheep. Plea, the general issue, with notice, that the defendant would justify the taking as collector of taxes for the town of Washington. Trial by jury, December Term, 1848, — Redeield, J., presiding.

<p>Appeal from an order of removal of a pauper, made by two justices of the peace, pursuant to the statute. While the appeal was pending in the county court the parties agreed, that the suit should be discontinued, and that the defendants should pay to the plaintiffs the “ costs” which had accrued, — to be taxed by the clerk. Upon appeal from the taxation by the clerk, the plaintiffs claimed to be allowed the costs of the court of inquiry, the expenses of the agent in preparing the suit for trial, the costs and counsel fees in court, and the expenses of maintenance and medical care for the pauper, after the order of removal was made, and while the pauper was unable to be removed, by reason of sickness. The county court, June Term, 1848, — Redeield, J., presiding, — allowed the bill of costs, as claimed by the plaintiffs. Exceptions by defendants.</p> <p>insisted, that the expenses claimed were not a proper item of “ cost,” but that the plaintiffs’ remedy, to recover them, was by action upon the statute, — Rev. St. 102, Sec. 6.</p>

Ejectment. Plea, the general issue, and trial by jury, June Term, 1848, — Redeield, J., presiding. On trial, the plaintiffs, to prove title in themselves to the demanded premises, gave in evidence the levy of an execution thereon in their favor.

<p>Appeal from the probate court. Upon the settlement of the administrator’s account, there was found in his hands the sum of 86588,20, to be distributed among the legal heirs of the intestate, Ephraim Hatch. It appeared, that the intestate died, leaving no issue, widow, father, mother, brother, or sister, and that the nearest of kin, surviving him, were the representatives of his deceased brothers and sisters. The mother of the intestate, at the time of her marriage with the father of the intestate, was the widow of one Stark-weather, then deceased, by whom she had issue, then living, brothers and sisters of the half blood of Ephraim Hatch, the intestate ; but all the brothers and sisters of the half blood died, previous to the decease of the intestate, leaving issue, some of whom were living at the time of his decease. It also appeared, that some of the children of the brothers and sisters of the intestate died, previous to his decease, leaving issue who are still surviving.</p> <p>The probate court ordered, that the estate should be distributed among the next of kin of the intestate, in equal degree, in equal shares per capita, and that the corresponding surviving representatives of the intestate’s brothers and sisters of the half blood, in equal degree, should be included in this distribution. From this decree Gilbert M. Hatch, claiming to be aggrieved thereby, appealed.</p> <p>The county court, December Term, 1848, — Redfield, J., presiding, — affirmed, pro forma, the decree of the probate court. Exceptions by appellant.</p> <p>1. The probate court erred, in deciding that the relatives of the half blood were entitled to a share in the distribution. There should be a distinction between relatives of the half blood who have the same father and those having the same mother ; and we insist, that the statute of this state should receive such a construction. If the intestate had died before the death of his father, his property would have been inherited by his father, and then, upon the death of his father, the property would have descended to his children, and the children of the mother, by her former husband, would have inherited none of it. 1 Sw. Dig. 116. 4 Kent 389, 399.</p> <p>2. The probate court erred in making the distribution per capita, instead of per stirpes. The fourth clause of our statute of distribution, — Rev. St. 292, — names the legal representatives of brothers and sisters; and the fifth clause says, “ if none of the relatives above named shall survive the deceased person,” his estate shall descend in equal shares to the next of kin in equal degree. We maintain, that the true construction of the statute will distribute an estate per stirpes, as long as there are any legal representatives of a brother or sister, or, at all events, among brothers’ and sisters’ children. 4 Kent 388, 398. Maxwell v. Seney, 5 Har. & J. 23. 1 N. Y. Rev, St. 742. Jackson v. Thurman, 6 Johns. 322. Daggett v. Slack at al, 8 Met. 450, Tillinghast v. Cook et al., 9 Ih, 143.</p> <p>It is clear, that the grand children of the brothers and sisters of the intestate; their parents being dead, are not entitled to a distribution in the estate, if, as we think, the case comes within the fifth rule of our statute of distributions. By this rule, there being no issue, father, widow, brother, or sister, the estate mast descend, in “ equal shares,” to the next of kin. But the grand children, in this case, are not next of kin. And it is equally clear, under this rule, that the distribution is to be made per capita; otherwise it might not be in “equal shares.”</p> <p>But does the case come within rule fifth? The language of that rule is, that “ if none of the relatives above named survive the deceased person,” then resort to next of kin. The relatives above named, in rule fourth, are issue, widow, father, brother, sister and mother, — unless the words “ legal representatives of any deceased brother or sister” are to be included among “relatives above named;” but such is not the natural sense of the words, nor the obvious meaning of the reference. It would seem, that the statute allows representation among collaterals only when an estate is divided, under rule fourth, to brothers and sisters living and representatives of a deceased brother, or sister; but if no brother or sister is living, then the next of Inn are resorted to, instead of legal representatives. 2 Kent 342. 2 BI. Com. 218. Quinby v. Higgins, 2 Shep. 310. JPett v. Pelt, 1 Salk. 250.</p> <p>The probate court decreed in accordance with the statute, that the relatives of the half blood should inherit equally with those of the whole blood, in the same degree. Rev. St. 292, § 2. Nor does it make any difference, whether the half blood comes from the father, or mother. The exclusion of the half blood by the common law was founded upon no such consideration.</p>

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows. The amount of the debit side of the plaintiff’s account, as allow» ed, was $ 497,24, towards which the defendant had paid $ 266,70, leaving a balance due to the plaintiffs of $ 230,54.

Indebitatus Assumpsit. Plea, the general issue, and trial by jury, November Term, 1846, — Redfield, J., presiding.

Covenant. The plaintiff alleged in his declaration, that on the ninth day of January, 1846, he. agreed with the defendants and others, (a return of non est inventus having been made upon the writ, as to the others,) by writing, under seal, that he would perform the masonry upon certain sections of the Vermont Central Rail Road, according to certain specifications, the tenor of which he set forth, and at certain specified prices; that the defendants agreed, that the engineers…

Audita Querela, brought to the supreme court to set aside an execution. The case was sent to the county court for trial by jury upon the plea of the general issue. On trial the facts appeared as follows. On the twenty second of October, 1840, the defendant conveyed to Darius Spalding and Allen Spalding, by quitclaim deed, a tract of land in Roxbury, of which the plaintiff was then in'possession, claiming adversely to all others.

Audita Querela. The plaintiff alleged, in substance, that, while he was absent from the state, the defendant fraudulently sued out a writ against him, returnable before a justice of the peace, and caused the same to be served by attaching the plaintiffs* property, and, at the return day of the writ, took judgment against the plain- • tiff by default, without continuing the suit for notice to the plaintiff, and without giving security, by recognizance, as required by statute,…

Information for rape. After verdict of guilty the respondent moved for a new trial; and upon the hearing of the motion the facts were found to be as follows. The jury, at a late hour of the night, signified their wish, by ringing the bell, for the court to attend and receive their verdict, — there having been no adjournment of the court, but a recess.

Assumpsit. The plaintiff alleged in the first count in his declaration, in substance, that he put in a bid for carrying the United States’ mail over mail route No. 317, in accordance with proposals issued by the post office department, and accompanied it with security, that he would perform the contract, if his bid should be accepted ; that his bid was accepted; that afterwards,in consideration that he paid to the defendant ten dollars and transferred to him his interest in…

Indictment for becoming a retailer, without license. Plea, not guilty, and trial by jury, December Term, 1848, — Poland, J., presiding.

Assumpsit. The defendants pleaded in abatement, that the writ was served upon them by delivering a copy thereof to N. W. French, . one of the selectmen of the town, notwithstanding the town had a town clerk, duly qualified to act as such, and.he had appointed an assistant town clerk, pursuant to the statute, w'ho was also duly qualified to act as such, and that it did not appear from the officer’s return, that either the town clerk, or his assistant, was absent from the…

■ Appeal from a decree of the probate court, allowing the account of the plaintiff, as administrator of the estate of Warren S. Clark. In the county court commissioners were appointed to examine and adjust the account, who reported the facts substantially as follows. The administrator claimed to be allowed for the payment of a note in favor of Solomon Beach against the estate, amounting to $81,85.

[In Chancery.] Appeal from the court of chancery. Held: that if the contract be in part executed, and the infant, when sued, plead .his privilege, he avoids the residue of the contract and leaves the executed part in force. See Abell v. Warren, 4 Vt. 149; Baker v. Lovett, 6 Mass. 78; Roof v. Stafford, 7 Cow. 181; 9 Cow. 626; Tucker et al. v. Moreland, 10 Pet. 58.

Information for an assault and battery upon one Russell Clark. Plea, not guilty, and trial by jury, December Term, 1848, — Poland, J., presiding. On trial the facts were proved to be as follows. Held: that an appeal from the commissioners, allowing a claim, and the acceptance thereof by the probate court, vacates the judgment allowing the debt. Prohate Court v. Rogers et at., 7 Vt. 198.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. The plaintiff’s account was allowed at $82,81. The defendant presented an account in offset, and, among other things, charged to the plaintiff the amount of certain notes and accounts, against different persons, which he had delivered to the plaintiff, who was an attorney, to collect.

Indebitatus Assumpsit for money had and received. Plea, the general issue, and trial by jury, December Term, 1848, — Poland, J., presiding.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. The only account presented by the plaintiff was for a horse, charged at fifty dollars.

<p>In this case the plaintiff offered, as evidence of a judgment rendered by a justice of the peace, a copy of the original writ, and of the officer’s return thereon, with a copy of the minutes from the original writ, showing the continuance of. the suit, and a copy of a minute in these words, — “ Continued to September 24, 1845, at eight o’clock forenoon, at which time judgment on verdict of jury for plf. to recover ofdft. $4,00 damages and his cost; said cause was continued for taxation of cost to Sept. 25, at which time said cost was taxed at $8,92, and allowed at $5,95,” — signed by the justice, and the whole certified by him to be “ a true copy.” Held, That this was a sufficient copy of record, to answer the requirements of the statute.</p> <p>. Held, also, that the judgment was properly described as rendered on the 24th of September, — the delay for the taxation of costs being improperly styled a continuance in the record.</p> <p>An. infant is incapable of appearing for himself and defending his suit in court, or of appointing an attorney to appear and defend for him; and if he be defended by an attorney, in a suit before a justice of the peace, without the appointment of a guardian ad litem,, and judgment be rendered against him upon the verdict of a jury, such judgment will be vacated on audita querela.</p> <p>If a judgment against several persons be vacated as to one, upon audita querela, it must be vacated as to all.</p>

<p>Debt on judgment. Plea, nul tiel record, and trial by the court, September Term, 1847, — Royce, Ch. J., presiding.</p> <p>On trial the plaintiff gave in evidence a copy of an original writ in his favor against the defendant, signed by Cromwell Bowen, a justice of the peace, and returnable before him at Berkshire, in the county of Franklin, the second Monday in October, 1840; also a copy of the officer’s return thereon, showing the attachment of the defendant’s property, and the leaving of a copy at his last and usual place of abode; also a copy of memoranda made by the justice upon the writ, and signed by him, in these words, — “ Continued to the 4th Monday of Oct. 1840, same time and place — “ Defaulted, Oct. 26, 1840, — damages $59,72, — cost $2,59 •" — “ Exon, issued Oct. 26, 1840also a copy of the execution issued upon the judgment, — which corresponded with the minutes upon the writ, and also with the judgment described in the declaration in this suit. It appeared, that the justice had died, since the judgment was rendered, and these copies were certified by the clerk of the county court for the county of Franklin.</p> <p>The court, upon inspection of these copies, adjudged, that there was no such record, as that described in the declaration, and rendered judgment for the defendant. Exceptions by plaintiff.</p> <p>The rule of evidence, constituting the record of a judgment the means by which such judgment is to be proved, is at all times subservient to the general rule, that, if the best evidence, of which the nature of the case admits, cannot be had, then the best legal evidence, that can be had, shall be received. When records are lost, or destroyed, courts have uniformly allowed their contents to be proved by the next best evidence. Dillingham v. Snpw, 5 Mass. 547. Stockbridge v. West Stockbridge, 12 Mass. 400. 1 Greenl. Ev. 97, 554. Dyson v. Wood, 3 B. & C. 449, [10 E. C. L. 149.] When courts, in practice, do not draw up an authentic memorial of their proceedings, their judgments are allowed to be proved by the minutes of the judgment, upon the principle, that the best evidence, that can be had, shall be received. Jones v. Randall, Cowp. 17. Arundell v. White, 14 East 214. 1 Greenl. Ev. 557. The supreme court of this state have always recognized the rule, that where an actual necessity existed, as in the present case, the files and minutes of the justice would be admissible as evidence to prove a judgment; Strong et al. v. Bradley, 13 Vt. 9; Wright v. Fletcher, 12 Vt. 431; Nye v. Kellam, 18 Vt. 594; Lowry v. Cady, 4 Vt. 504; Story v. Kimball, 6 Vt. 541; and this rule has been recognized, and acted upon, both in England and in the other American states. Dyson v. Wood, 10 E. C. L. 149. Baldwin v. Prouty, 13 Johns. 430. Pruden v. Alden, 22 Pick. 184. 1 Greenl. Ev. 554.</p> <p>Justice’s courts are made courts of record by the statute of this state. Rev. St. 176, § 63. The paper produced does not show, that the defendant ever had notice of the suit, or that there was a court held, or that either the plaintiff, or defendant, appeared before the justice, or that any judgment was rendered. All this is necessary, to make a valid judgment, as declared on by the plaintiff. What is necessary, to constitute a record of a justice’s judgment, has been abundantly decided by this court. Story v. Kimball, 6 Vt. 541. WrigJit v. Fletcher, 12 Vt. 431. Strong v. Bradley, 13 Vt. 9. Nye v. Kellam, 18 Vt. 594. Blodgett v. Royalton, 14 Vt. 288. Rev. St. 175, § 55. All that is necessary to be recorded must be shown by the record. Sherwin v. Bugbee, 17 Vt. 337. Godefroy v. Jay, 1 M. & P. 236, [17 E. C. L. 177.] 14 lb. 265.</p>

<p>The rule, that trover will not He for a record, applies to the record, strictly so called, which is made and preserved by public authority, and not to such papers as have relation to the record, but are not parcel of it. Therefore a judgment creditor may sustain trover for a writ of execution, which he has sued out upon his judgment.</p> <p>And such, action may be sustained, although the execution may have expired previous to the commencement of the action; since its absence from the office whence it issued might embarrass the plaintiff in procuring a fresh execution upon the judgment, and might even create a presumption, that the judgment had been satisfied.</p> <p>The father of a minor derives no right, from his mere relation to the minor, to make a sale, or transfer, of the minor’s property, or to dispose of it in satisfaction or security of his own debts.</p> <p>Where an infant became party to a trustee process, as claimant, it must appear, in order to render the proceeding conclusive against him, that his rights were actually tried upon evidence and adjudicated, and also that he appeared by guardian, as in case of an infant defendant, and not by prochein ami.</p>

<p>The defendant contracted with the plaintiff, who was the owner of a sloop on Lake Champlain, that he would employ the sloop in freighting, and would be at all the expense of labor for loading and unloading and for sailing and managing the vessel, and would pay to the plaintiff one half of the gross receipts for a specified time, and the plaintiff agreed, that he would be at the expense of making all necessary repairs upon the vessel; and it was held, that this did not create a partnership between them, nor give them a joint interest in the earnings of the vessel, but that an indebtedness was created from the defendant to be the plaintiff, to be measured by the amount of business done, and that the plaintiff might recover of the defendant, in an action on book account, one half of the amount received by the defendant for freighting during the time,</p> <p>The right to recover, in an action upon book account, cannot be defeated by the form, merely, in which the charge is made.</p> <p>The plaintiff leased a sloop to E., with an agreement between them, thatE. should do such freighting as the plaintiff might desire, and the amount should be applied upon account between them. E. leased the sloop to the defendant. Subsequently the plaintiff, being ignorant that the defendant had any interest in the sloop, gave E. an order upon a third person, for lumber and directed him to transport it to Whitehall. E. delivered the order to the defendant, and he performed the service. The defendant did not call upon the plaintiff for payment for the freighting, nor make any charge for it to the plaintiff, nor did the plaintiff know, that it was performed by the defendant, until the plaintiff had given credit to E. and had settled with him therefor. Held, that the defendant could not afterwards recover of the plaintiff for the freighting.</p>

<p>[In Chancery.]</p> <p>Appeal from the court of chancery. The facts were as follows.</p> <p>The defendant, William Manly, in 1841, executed to one George W. Farwell a mortgage of real estate to secure the payment of three notes of one hundred and fifty four dollars each, payable in one, two, and three years from date, with interest. Before the note first payable became due, Farwell sold and endorsed it to the plaintiff. Afterwards Farwell sold the two other notes to one Isaac McDaniels, and assigned to McDaniels all his interest in the mortgage. McDaniels subsequently sold the two notes to the defendant Cochran, at the same time assigning to him all his interest in the mortgage. Before the assignment of the mortgage to Cochran, William Manly, the mortgagor, had quitclaimed the premises to the defendant Marcus M. Manly, and Marcus M. Manly had mortgaged them to the defendant James Curtis. Cochran, on the day of the assignment to him, surrendered to Marcus M. Manly the two notes, and agreed to discharge the mortgage, and included the amount of the notes, together with other demands of his against Marcus M. Manly, in a new mortgage to himself of the same and other premises. After the bringing of the bill Cochran acknowledged, under his hand and seal, upon the back of the mortgage, that he had received the contents of it in full, and the same has been recorded in the town clerk’s office.</p> <p>It did not appear, that any thing was said between Farwell and Belding, at the time of the purchase of the notes, in regard to the mortgage; but subsequently, and before the assignment to McDaniels, Belding claimed of Farwell, that the mortgage was a security for the note sold to him, and that he had the first right in it. McDaniels and Cochran, at the time of the several assignments to them, and Marcus M. Manly, when the two notes were surrendered to him and the mortgage discharged by Cochran, knew, that the first note was Ih the hands of Belding unpaid.</p> <p>Before the bringing of the bill the plaintiff tendered to Cochran the amount of the two notes, and demanded an assignment of the mortgage and notes, or that Cochran would unite with him in the foreclosure of the mortgage ; which Cochran refused to do; — he having previously surrendered the notes to Marcus M. Manly and agreed to discharge the mortgage.</p> <p>The plaintiff by his bill claimed the benefit of the mortgage, as against the defendant Cochran, either in proportion to Cochran’s claim on the two notes, or pro rata with him, or subject to his claim, as the court might deem equitable, and for a decree of foreclosure against the other defendants, and for general relief.</p> <p>The court of chancery, June Term, 1847, — Kellogg, Ch.,— dismissed the bill, as to all the defendants; from which decree the plaintiff appealed.</p> <p>1. As to William Manly and James Curtis, the orator is entitled to a decree of foreclosure, — the bill, as to them, being confessed.</p> <p>2. As to Marcus M. Manly, no equitable considerations appear, to save him from a like decree. He took his title by quitclaim deed from William Manly, the mortgagor. ' Hence he stands precisely in the position of his grantor. William Manly owed this note and had mortgaged the land. Whatever understanding may have been had between Farwell and the orator, as to their relative-rights under the mortgage, that was a matter between themselves, to which William Manly was a stranger.</p> <p>3. As to Ira Cochran. The orator claims, that he took, with the purchase and assignment of the first mortgage note, an interest in the mortgage, to secure it. The right of Farwell and Belding, in reference to the mortgage, depend, it is said, upon their contract. Langdon et al. v. Keith, 9 Yt. 299. But in case no express contract be proved, the law creates one, giving to each an interest in the mortgage, according to his interest in the mortgage debt. Martin v. Mowlin, 2 Burr. 969. Pratt v. Bank of Bennington, 10 Vt. 293. Hatch v. White, 2 Gal. 152. And the assignee of the debt is entitled to the aid of the mortgage, though the mortgage be not delivered and nothing be said about it. Green v. Hart, 1 Johns. 590. Crosby v. Brownson, 2 Day. 425. Austin v. Burbank, lb. 474. Jackson v. Willard, 4 Johns. 41. Aymar v. Bill, 5 Johns. Ch. R. 570. Evertson v. Booth, 19 Johns. 485.</p> <p>But if Cochran may claim, that his new mortgage takes a priority, to the extent of the two last notes specified in the previous mortgage, (which perhaps the tender by the orator admits,) the orator claims, that he has a priority no farther, and that the orator should be permitted to redeem by paying to Cochran the amount of the notes purchased by him of McDaniels; that that sum should be tapked to the amount due upon the first mortgage note ; and that the whole, with costs and future accruing interest, should be decreed to be paid to the orator by a short day, or the defendants be foreclosed, and the title be assured to the orator, under the first mortgage.</p> <p>There must have been a contract between the orator and Farwell, at the time the note was purchased, or the orator could have no lien upon the mortgage, even as against Farwell, if the mortgage were yet in his possession. Langdon et al. v. Keith, 9 ’"rt. 899. But here the whole mortgage has been twice unconditionally assigned, for a full consideration, and without any notice of this pretended lien, and finally, and before this suit was commenced, the notes and mortgage were cancelled, and a new mortgage was given for the full value of the premises. Can there now be any equity in disturbing the present mortgage ? Wright v. Parker et al., 2 Aik. 212.</p> <p>There is no equity in the bill. It is not alleged, that William Manly, the maker of the note, is insolvent. This should have been alleged and proved, to entitle the orator to a decree.</p> <p>The orator should not be allowed to pay the whole of Cochran’s mortgage, and then have a lien upon the premises. This would be a wrong upon Marcus M. Manly. He paid a full consideration for the premises, knowing that the orator had purchased the first note without taking any assignment of the mortgage. If the premises had been improved by him, in the erection of new buildings, or machinery, so that they are now of more value than the Cochran mortgage, or if they had been sold, it would in effect be decreeing, that Marcus M. Manly should pay the notes.</p> <p>It-is true, that in Langdon et al. v. Keith, above cited, the court allowed the orator to redeem by paying both of Keith’s mortgages. But this case differs from that in several important particulars. 1. That bill was in the name of the administrators of the mortgage,, and this in the name of the assignee of one of the notes merely, who took it without any lien upon the mortgage. 2. In that case the mortgagor was still holding the premises, and had himself given a subsequent mortgage to the assignee of the first mortgage; while in this case the mortgagor has conveyed the premises to a third person, for a full consideration, after the note was sold by the orator. 3. In that case the maker of the note was insolvent j but here that does not appear, 4. The notes and mortgage, in this case, which were assigned to McDaniels and then to Cochran, had been can-celled, before this suit was brought, — the mortgage and notes were functus officio ; — while in that case the mortgage and notes, which had been assigned, were still outstanding against the maker, and it would be doing no one injustice for the orator to pay Keith’s mortgages and to have a lien upon the premises.</p>

<p>An action cannot be sustained against one who is a mere depositary of money, unless h'13 situation have been changed from that of a depositary to that of a debtor, either by a wrongful refusal to pay the money upon proper request, or by a wrongful appropriation of it.</p> <p>The president and professors of a literary institution were to have all the tuition money received, and agreed that it should be divided between them according to certain specified rates and proportions; and it was also agreed, that all the money collected should be delivered to a depositary, or treasurer, and that the interest of the members in the fund, when so in deposite, should be distinct and several interests, and not to any extent or purpose joint interests; and the depositary had no right to make any investment of the fund, either for the benefit of the members, or for his sole benefit, nor were there any charges upon the fund, in his hands, in the adjustment of which there might be a common interest. Held, that the effect of the agreement was, when the money was deposited, to sever the previous joint interest of the parties, and to vest in each member the right to demand his several share from the depositary.</p> <p>Held, also, that although no action could be sustained, in such case, against the depositary, for the several share of a member, until demand made, yet that a qualified indebtedness, sufficient to warrant a charge on book, arose immediately upon the receipt of the money, and that each member might recover his several share’in an action on book account, upon refusal of the depositary to pay upon proper demand.</p> <p>A right to make a charge on book does not require, that there should be an immediate and present right of action upon it. It is sufficient, in any case, if an obligation to account for the money or property received resulted directly from the transaction between the parties.</p> <p>In a case where the action of book account would otherwise be appropriate, the necessity of demanding payment before suit is no valid objection to the form of action.</p>

<p>In order that a person may gain a legal settlement ¡n a town by several years’ residence, the residence must have been the result pf choice, and not of legal coercion.</p> <p>Where a debtor was committed to jail upon execution and gave a jail bond and was admitted to the liberties of the prison, and then removed his family to the town where the jail was situated, and continued to reside there, within the liberties, with his family, for more than seven years, supporting himself and family, and paying taxes in the town, committing no breach of his bond, it was held, that he acquired no settlement in such town, and that upon his being afterwards committed to close jail and being then aided by the town in which the jail was situated, that town might recover the amount so expended, by an action for money paid, against the town in which he had his legal settlement at the time when he was first committed to jail.</p> <p>And if it should be conceded, that such prisoner have relatives of sufficient ability, from whom the town, in which the jail was situated, might have recovered the amount of their expenditures for his support, by petition under the statute, yet this will not preclude them from also maintaining an action for money paid, which is also given by statute, against the town in which he has his legal settlement.</p>

<p>Debt on a judgment recovered in the supreme court of New Hampshire, in Grafton county, November Term, 1818, in two counts. In the first count the plaintiff declared, in common form, upon a judgment- for $1000, debt and damages, and for $20,52 costs. In the second count the plaintiff declared on a judgment „ for $1000, alleging that it was recovered on the penalty of a bond, which was conditioned, that the defendant should pay to W. B. Bannister $900, with interest annually, specified in nine notes, executed by the plaintiff to Bannister, dated July 23, 1814, payable yearly on and after May 1, 1817, “ and also save and keep harmless the said Dimick from all cost, trouble and expense, that might accrue to him from or by reason of said notes not being paid according to their tenbr and effect;” and that, it appearing that one of said notes only was then justly due and unpaid, it was therefore ordered by said court, that execution then issue for the sum then due on said note, being $121,76, and said costs, being $20,52 ; and that, after the execution of said bond, and after the rendition of said judgment, the defendant neglected to pay said notes, or to save harmless the plaintiff from the costs, trouble and expense, which accrued to him from said money not being paid by the-defendant to said Bannister, as the same from time to time became due, according to the tenor and effect of said notes; and that the plaintiff has been compelled, by reason of said neglect, to pay to said Bannister, since the rendition of said judgment, the amount of all said notes, according to the tenor thereof, and which the defendant has wholly neglected to pay; and that said judgment still remains in force and unpaid, except as to the amount of said execution, so awarded by said court, which has been paid to the plaintiff. This action was commenced in October, 1843.</p> <p>To the first count the defendant pleaded, — 1. Nul tiel record,— on which issue was joined to the court; — 2. (After craving oyer of the record and setting it forth,) that the defendant paid to the plaintiff the amount of the execution awarded; — to which plea the plaintiff demurred. To the second count the defendant pleaded, — 1. That the action was not commenced within eight years after the rendition of said judgment, and that when said judgment was rendered, the defendant was within this state; — to which plea the plaintiff demurred; — 2. .That the action was not commenced within eight years next after the rendition of said judgment, nor within eight years next after all the damage, which the plaintiff ever sustained, or which accrued to him by reason of said notes not being paid, according'to their tenor and effect, was sustained by or had accrued to the plaintiff. To this plea the plaintiff replied, that before said notes became due, to wit, December 1, 1819, the defendant departed and removed from this state, and from the United States, to Canada, and there resided until within eight years before the commencement of this action. The defendant rejoined, that, after the said alleged departure and removal, the plaintiff was not farther damnified by reason of the non-payment of the notes, or any part 'thereof. To this rejoinder the plaintiff demurred. The record, offered in support of the issue under the plea of nul tiel record, was the same described in the second count in the declaration.</p> <p>The county eourt, March Term, 1846, — Redfield, J., presiding, — adjudged, upon the plea of nul tiel record, that there was no such record, and also adjudged, that the first plea to the second count of the declaration was sufficient, and that the rejoinder to the replication to the second plea to the second count was sufficient, and rendered judgment for the defendant. Exceptions by plaintiff.</p> <p>It may be assumed as fully settled law, that in all cases, where there is a personal civil obligation, the same may be enforced against such person in any civil jurisdiction, where he may be found. In giving construction to the contract and ascertaining the nature and extent of the obligation, the law of the country, in which the contract was made, or the lex loci contractus, is regarded, not as law, but as a method of ascertaining the extent of the obligation. The manner of enforcing the obligation depends entirely on the law of the jurisdiction, where such proceedings for enforcing it are taken, — the lex fori. The former determines the right, the latter the remedy. It is therefore entirely untrue, that, because the same remedy cannot be given here, as in the state, or country, where the obligation was incurred, therefore none can be given. Municipal regulations and obligations of public relation are not mere matters inter partes, and constitute an exception to the general rule. Such was the case of Pickering v. Fisk, 6 Vt. 102. It is true, that at one time it was supposed, that the form of the remedy, and especially the final proces, was qualified, or affected, by the lex loci contractus; Melan v. Fitz James, 1 B. & P. 13S ; but this is now every where exploded. The lex fori regulates, alike, the form of the action, the form of the judgment, and the form and effect of the final process for its execution. Story’s Confl. of Laws 475, §§ 567, 568. Ib. 478, § 571. Ib. 479, § 572. Warren v. Lynch, 5 Johns. 239. Andrews v. Herriot, 4 Cow. 508. Hinckley v. Marean, 3 Mason 88. Pickering v. Fisk, 6 Vt. 102.</p> <p>That Brooks was under legal obligation to Dimick, by virtue of the judgment in New Hampshire, is most obvious. In that judgment the bond had become merged. The judgment stood in full force, to be pursued from time to time, as breaches in the condition of the bond transpired. The law of New Hampshire, as to the mode of proceeding on penal bonds, is much like that of other states, and all are substantially the statute of William III. Judgment is rendered for the penalty, the same as at common law; but instead of the defendant resorting to chancery for relief, as before the statute, the breaches then existing are shown to the court, who issue execution for so much of the judgment, and then, by the very words of the statute, the judgment remains in full force, as security for subsequent breaches, which may be shown on scire facias, and execution issued from time to time, pro tanto. But there is but one judgment, and execution can never issue, so as to exceed that judgment in amount. In this case, after judgment, one breach was shown, and execution issued therefor and was paid, and this action is pursued only for the subsequent breaches. For this obligation can there be a remedy in Vermont? and if so, what must be the form of that remedy ? Scire facias cannot be sustained, as that is confined to the court, which rendered the judgment and has the record thereof; it is but a proceeding to procure, the order of court for the issue of execution on the existing judgment. Should an execution for a part of such judgment be, on scire facias, ordered by the court to issue, and should not be paid, will any one insist, that debt on judgment could be any where sustained therefor, by itself, separate from the judgment itself? All these, however, are but forms of remedy, modes of redress, confined to the place of judgment and peculiar to it. What is the form of remedy here 1 Clearly the action of debt on judgment, — debt on that one, only judgment, which has been rendered in the case. In declaring on that judgment there is no more occasion to set out the subsequent proceedings, which appear on the record, than there would be, when declaring upon an ordinary judgment, to set out the issue of execution and the return of nulla bona thereon, which appear on the record. The fact, that the record shows more than the judgment, does not require it to be set out in the declaration.</p> <p>If it be here insisted, that by this course the defendant, having judgment rendered against him on this judgment, is deprived of the privilege of having the court confined to issuing execution against him only for the additional breaches, as this action, being on judgment, and not on bond, is not within the statute, we answer, he must do what all men had to do at common law in such cases, before the statute of William III, that is, resort to chancery for relief. But this constitutes no objection to a judgment for the plaintiff, according to the course of the common law, which is the law of the court, except when changed by the statutes of the state.*</p> <p>1. As to the plea of nul tiel record, the defendant insists, that the record offered is not, per se, evidence of the debt demanded, but is conclusive evidence, that the amount, for which execution was awarded, was the only existing debt, at the time of rendering the judgment. But on a default, or on this issue found for the plaintiff, the judgment, according to the common law, must follow the declaration, and be rendered for the whole sum demanded, with interest as damages; which this court cannot chancer. If the action had been brought in December, 1818, upon the failure to pay the note which fell due May 1, 1818, (and it would have lain then, as well as in 1843,) the judgment must have been the same. But it may be urged, that this might have been avoided by a plea, that the judgment was conditional by the law of New Hampshire, and stood only as security for farther breaches of the bond, &c., and that the defendant had kept the condition, &c. Such a plea would contradict the record, and would not be sustained by the rules of the common law. The defendant is not entitled to oyer of a record, nor does the bond form part of the record. He must, then, set forth the record at his peril; he must take the condition of the bond, as the plaintiff has chosen to place it on the record. It deprives the defendant of the plea of nul tiel record, unless he hazard the having an absolute judgment against him for the whole sum demanded. And on such pleadings a conditional judgment must be rendered ; — under what law?</p> <p>The effect of a foreign judgment can be none other here, than in the state where rendered. This not being a common law judgment, its effect must depend upon the law of New Hampshire. It is not a debt there ; Shepard v. Parker, 2 N. H. 363; but stands as security for farther damages. The only remedy then, as in like cases here, is by scire facias, issuing from the court in which judgment was rendered.</p> <p>2. The second plea to the first count, after oyer, sets forth payment of the execution awarded. The object of this plea is, to extinguish any debt apparent on the record. The demurrer to this plea opens the question of the sufficiency of the first count. Though the plaintiff was not bound to give oyer, yet, having given it, the record {as to this plea only) becomes a part of the declaration.</p> <p>3. As to the declaration. The action of debt will not lie on a .similar judgment, rendered in this state. It is a statute judgment, ¡and can be enforced only according to its provisions. The remedy ■is local, — to the court in which the judgment is rendered. If it be a statute judgment, it cannot, on common law principles, be enforced here. Pickering v. Fisk, 6 Yt. 102. A scire facias would be one step nearer to the analogy of our laws; it would only require a naturalization of the judgment. The remedy by action on the bond, the judgment in New Hampshire non obstante, would be a less exceptionable remedy. In both cases the subsequent proceedings would be according to the course of our law, after legislating, to legalize such action. The form of the action is unknown to our ]aw, — debt on the case on judgment. It is extending the statute of this state to a judgment of another state, and enforcing it by, a remedy unknown to the laws of either state.</p> <p>What will be the effect of a judgment here, on the existing judgment in New Hampshire! Will it be a bar to future proceedings there ! Suppose the action had been brought in 1818, on the nonpayment of the second, note; would it affect the remedy in New Hampshire on failure to pay the third note ! What judgment is to be rendered! — a judgment for the whole $1000! — for the $1000, less by the execution awarded! — or for the plaintiff’s actual damages!</p> <p>But it may be urged, that unless the action be sustained, the plaintiff is without remedy, the defendant residing out of New Hampshire. But this objection applies in all cases, where the remedy is local, — as on sheriffs’ and executors’ bonds, bail bonds, bail on mesne process, trespass on the freehold, &c. It is to be presumed, that the laws of New Hampshire afford an adequate remedy on local judgments, against absentees. And on such awards of execution, debt, or indebitatus assumpsit, would lie in any state.</p>

<p>Trespass on the Case for a false warranty, or deceit, in the exchange of a horse. Plea, the general issue, and trial by jury, November Term, 1846, — Kellogg, J., presiding.</p> <p>On trial the plaintiff gave evidence tending to prove, that he exchanged horses with the defendant on the 17th of December, 1845, and that, in the contract of exchange, the defendant warranted the horse, by him transferred to the plaintiff, as being then sound; that the horse was then in fact unsound and diseased, and continued so during all the time the plaintiff owned him ; that while the plaintiff owned him, the horse, though well treated and fed, remained poor, and did not improve, and continued so diseased, that most persons, who examined him, considered him as of no value; that the plaintiff, regarding the horse as having an incurable disease, on the 20th day of February, 1846, sold him for ten dollars, which was the most he could obtain; and that the horse, if sound, would have been well worth one hundred dollars.</p> <p>The defendant gave evidence tending to prove, that he did not warrant the horse, but only represented, that the horse had been affected with the horse distemper the previous spring, the effects of which were still upon him, and also gave evidence tending to prove, that whatever ailed the horse was but the effect of that disease. The testimony also tended to prove, that the horse, after he was sold by the plaintiff, had ultimately recovered, so that he had been recently sold for more than one hundred dollars, and that, at the time of the present trial, he was apparently sound and well.</p> <p>The defendant requested the court to charge the jury, on the subject of damages, that, if the plaintiff was entitled to recover, it was so much, as the disease, which was upon the horse, lessened the actual value of the horse, or only so much, as that would have lessened his value to the plaintiff, if the plaintiff had kept and treated the horse, as he had since been kept and treated.</p> <p>But the court instructed the jury, upon this point, that, if they found the warranty proved, as alleged by the plaintiff, and that the horse was then unsound, the plaintiff was entitled to recover such amount of damages, as he suffered from that unsoundness, that is, the difference between what he obtained for the horse and what he would in fact have been worth to him, if he had .been sound, as warranted, if the plaintiff, in the keeping, treatment and disposing of the horse, exercised ordinary care, diligence, prudence and discrfetion ; and that, if they should find, that the horse, since he was sold by the plaintiff, has, by the treatment he has received, entirely recovered, yet if that recovery were contrary to the reasonable expectations entertained in relation to the horse, when owned by the plaintiff, it should not diminish the plaintiff’s claim for damages.</p> <p>Verdict for plaintiff. Exceptions by defendant.</p> <p>The defendant insists, that his liability is to be determined by the actual condition of the horse at the time of the sale ; and that this liability cannot be enhanced by any subsequent conduct of the plaintiff in the management or disposal of the horse. Any other rule would allow the plaintiff to kill the horse, and then make his own judgment, instead of the condition of the horse, the standard for determining the defendant’s liability. ■</p> <p>But at least the plaintiff should have offered to return the horse to the defendant, and have thus given him an opportunity to rescind the bargain ; and without doing so, the defendant insists, that he cannot be made liable for the enhanced damages. Selw. N. P,, Tit. Deceit. Chesterman v. Lamb, 2 Ad. & E. 129, [29 E. C. L. 50.] Buchanan v. Parnshaio, 2 T. R. 745. Clare v. Maynard, 32 E. C. L. 713. McKenzie v. Hancoclc, R. & M. 436, [21 E. C. L. 484.]</p> <p>The legal rule of damages is, that the party is to be put in as good condition, as he would have been in, had the contract been performed. Ferris v. Barlow, 2 Aik. 106. Cary v. Gruman, 4 Hill 625. Voorhees v. Earl, 2 lb. 288. Inasmuch as no other evidence of the market value of the diseased horse was given, than what was furnished by the highest price the plaintiff could obtain for him, — and he was not bound to keep the animal, — the court correctly put the rule, as between what the horse was sold for and what he would have been worth, if sound. As to the first part of the defendant’s requ.est, the court gave instructions substantially conforming to it; and the latter part of the request demanded the conditions, that the plaintiff was bound to keep the animal, until he should die, or be restored to soundness, and meanwhile treat him curatively, just as others have done, — the one condition unreasonable, the other impracticable.</p>

<p>Appeal from the decision of commissioners upon the estate of Richard Southgate, deceased, allowing a claim in favor of the plaintiffs against the estate. In the county court the plaintiffs declared in book account, and an auditor was appointed, who reported the facts substantially as follows.</p> <p>The plaintiffs were partners iii business, under the firm name of B. Hapgood & Co., from May 1, 1833, to May 1, 1835, when the firm was dissolved, and Hapgood purchased Morrison’s interest in the property of the firm and the debts due to them. There was at that time an account due to the firm from the intestate, Richard Southgate, of about $40,00. Hapgood then formed a copartnership with Forrest Henry, under the firm of Hapgood & Henry, and a new set of books was opened, and the firm continued to do business in the same store previously occupied by B. Hapgood & Co. At the hearing before the auditor it was proved by the testimony of Hap-good, that on the fifth day of July, 1837, he went to the mill of the said Richard Southgate, to procure some plank for repairing a building which belonged to him individually; that, having received the plank, which were delivered to him by Southgate, he requested Southgate to charge them to him, Hapgood, and not to Hapgood & Henry ; that Southgate replied, that he would not charge them at a 11, but said, “ You can give me credit for them on your old book ;” and that Hapgood entered the credit on the book of B. Hapgood & Co., — which the auditor found “ he was authorized to do, by the direction of the said Southgate.” Southgate died in May, 1842. The last charge on the plaintiffs’ account was under date of April 28,1835; and the credit.for the plank, which was the last item of credit, was under date of July 5, 1837. The appeal from the commissioners was allowed February 3,1845.</p> <p>The auditor reported, that there was a balance due to the plaintiffs of $41,87, unless their account was barred by the statute of limitations, — which question was submitted to the court.</p> <p>The county court, November Term, 1845, — Redfield, J., presiding, — accepted the report, and rendered judgment thereon for the plaintiffs, for the balance reported by the auditor. Exceptions by defendant.</p> <p>As the appeal was taken to the March Term, 1845, it is fair to presume, that the plaintiffs’ claim was not presented before the commissioners until after July 5,1843, which would complete the six years from the entry of the last credit. As the burden of proof is on the plaintiffs, they should have shown the presentment to the commissioners before that time, if they would avoid the effect of the statute. If it should be held, that, upon the decease of the intestate, the statute was suspended until the appointment of an administrator and of commissioners of insolvency, it cannot aid the plaintiffs, as there is nothing showing, that, after deducting the period from the death of the intestate to the granting of administration and appointment of commissioners, there would not still be left six years from the last item of credit to the time the claim was presented to the commissioners. But the operation of the statute of limitations was not suspended by the death of the intestate, as the cause of action arose long before that time. There is no distinction, in this respect, between the decease of a creditor and that of a debtor. Conant v. Hitt, 12 Vt. 285. Bac. Abr. 515. It is believed, that the true doctrine is this, — when the cause of action accrues before the death of the intestate, the statute is not suspended by his death j but when it accrues after his death, then the statute does not begin to run, until administration is granted, — for the reason, that until then there is no party to be sued, or that can sue. Murray v. E. I. Co., 5 B. & Aid. 204. Pratt v. Swainc, 15 E. C. L. 219. 2 Saund. 63jf, n. 6. Hiclcman v. Walker, Willes 28. This is in harmony with the doctrine, that, when the statute begins to run, it is not suspended by any accruing disability. 1 Wils. 134. 4 T. R. 300. Plowd. 355.</p> <p>But if the statute of limitations were suspended upon the death of the intestate, we insist, that the credit for the plank does not remove the statute bar. This was merely a circumstance, from which, an acknowledgment of the debt might be inferred; and we insist, that the party was incompetent to testify in respect to it. There was no dispute in reference to the delivery or price of the article, and the testimony of Hapgood was given solely with a view to the statute of limitations. But can the party with any more propriety testify to the facts, from which an acknowledgment is to be inferred, than to the fact of the acknowledgment 1 Yet to the latter fact he is an incompetent witness. McLaughlin v. Hill, 6 Vt. 20. Pratt v. Gallup, 7 Vt. 344. 1 Aik. 355. 3 Vt. 104.</p> <p>The auditor was not justified in the inference, which he drew from the testimony of the party. It does not appear, that the intestate recognized any debt, as due to the plaintiffs, or acknowledged that there was an unsettled account between them. 12 Vt. 256. 17 Maine 145.</p> <p>The auditor finds the fact, that the plank were credited by Hap-good, and that he was authorized so to do by the direction of South-gate. That Hapgood was a competent witness to prove this fact is well established. Stevens et al. v. Richards et al., 2 Aik. 81. Fay et al. v. Green, lb. 386. May et al. v. Corlew, 4 Vt. 12. Delaware v. Staunton, 8 Vt. 53. It is not the case of a party proving a new promise by his own oath, to take the case out of the statute; but the law implies the promise from the fact of payment, which, clearly, may be established by the oath alone of the party. The last item of credit being established, as having accrued in 1837, and within six years previous to the decease of the intestate, the plaintiffs’ account is not barred by the statute of limitations. Hutchinson et al. v. Pratt, Adm’r, 2 Vt. 146, Wood, Adm’r, v. Barney, 2 Vt. 369. Abbott v. Keith, 11 Vt. 525.</p>

[In Chancery;] Appeal from the court of chancery. The allegations in the bill and answer and the facts proved are fully stated in the opinion delivered by the court.. The court of chancery dismissed the bill ; from which decree the orators appealed. 1. The defendants had no legal right to lay their road over or in any way interfere with the plaintiffs’ road.

Tins was a petition for an injunction, stating that the petitioners, being creditors of William F. Spear, a trader, on the first day of September, 1842, filed their petition in bankruptcy in due form against the said Spear, alleging an act of bankruptcy to have been committed by him on the eighteenth day of August, 1S42, and praying that he might be declared a bankrupt.

This was a petition by Alonzo Pearce, a bankrupt, one of the partners of the firm of Walbridge, Pearce & Co., for a discharge. The material facts in the case are sufficiently detailed in the opinion delivered by the court.

This was a petition by David Howes, declaring himself .to be unable to meet his debts and engagements, and praying for the benefit of the bankrupt law. The petition was presented and filed March 3, 1843,; and it was moved, that an order of notice to creditors and others be issued thereupon, to show cause why the petitioner should not be declared a bankrupt.

This was an application by Christopher C. Rowell, who had been duly declared a. bankrupt on his own petition, for a certificate of discharge; to th.e allowance of which the following objections were interposed; — 1.

This was a petition by Henry Gassett and others against Jonathan Morse and James L. Chapman, and was filed August 12th, 1842.

This was an application by Timothy Heed, a bankrupt, for a discharge. The facts in the case, as well as the objections filed by the opposing creditors, will sufficiently appear from the opinion delivered by the court.