Volume 22 — Vermont Reports

<p>Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows.</p> <p>The plaintiff claimed to recover of the defendant $456,73, for wool sold by him under the following circumstances.</p> <p>Some time previous to July, 1842, Pliny Parker and Benjamin Billings were engaged in manufacturing woolen goods in Ludlow, under the firm of Parker & Billings, and in September, 1842, they failed in business, and their property was attached by one Spalding, as constable. After the attachment was made, Spalding carried on the manufacturing business in his own name, for the attaching creditors and the debtors, until November 28, 1842, when he sold the cloth, and some other personal property belonging to Parker & Billings, to the defendant. After the sale the defendant agreed with Parker & Billings, that he would go immediately to Boston and make such arrangements there, as would enable them to procure the materials for dyeing in the name of Spalding, — to which arrangement Spalding assented, — and also make arrangements with some firm in Boston, to have the goods thereafter manufactured by Parker & Billings consigned in the name of the defendant. The defendant accordingly made the proposed arrangements in Boston, and the materials for dyeing were procured by Parker & Billings, upon orders drawn in the name of Spalding, for about one year, and then Spalding gave notice to Parker & Billings, and also to the defendant, that his name must be no longer used for that purpose. Upon receiving this notice Parker & Billings informed Spalding, that the business of manufacturing was all the defendant’s, and that he might as well order the materials for dyeing in his own name; and after that they were ordered by Parker & Billings in the name of the defendant. All the goods sent to market were forwarded in the defendant’s name from February, 1843, to July, 1847, and all consignments, bills, orders and papers, relating thereto, were made and signed by Parker & Billings for the defendant, or by the defendant in his own name. About the time the defendant went to Boston, for the purpose of making arrangements for the materials for coloring and for the sale of the cloth, it was agreed between the defendant and Parker & Billings, that the defendant should furnish them with stock, so far as he could conveniently, and that from the avails of cloth, consigned as above mentioned, the defendant should receive his pay for stock, so furnished by him, and for any other liabilities he might have assumed for Parker & Billings. Under this agreement the defendant, until June, or July, 1846, furnished a large portion of the wool manufactured by Parker & Billings ; and in manufacturing no attempt was made by the defendant, or by-Parker & Billings, to keep the wool, which each furnished, in separate parcels, but it was mingled before manufacturing. The defendant was to have the avails of the cloth first sent to market, whether it was manufactured from wool furnished by himself, or by Parker & Billings. Parker & Billings, during the time above mentioned, were in the habit of hiring help and paying them from the stores in Ludlow, and in such cases the accounts were usually kept against Parker & Billings and were paid in cloth manufactured by them. They also, in a great measure, supported their families by the sale of cloth in the country, and by manufacturing cloth by the yard, or on shares, and from the avails of the business they were enabled to pay some of their old debts. Parker & Billings, during the same time, made a few purchases of wool upon the defendant’s credit; but there was no evidence tending to show, that they were authorized by the defendant to do so, or that the defendant was ever advised, that his credit had been pledged by them, until about the time, that he ceased to furnish stock ; neither had the plaintiff been informed, previous to the sale of his wool, of but one instance, where the defendant’s credit had been pledged by Parker & Billings for the purchase of wool; — and Parker & Billings, as between them and the defendant, were not in fact authorized to buy wool upon the defendant’s credit. The boxes and barrels in and about the factory building, containing goods for market, or goods brought from market, were marked with the defendant’s name; and the stock and other property in said building were represented by Parker & Billings, until the spring of 1847, as being the property of the defendant; and the,defendant, in November, 1844, in an application to an insurance company for insurance upon the stock in said building, represented the stock to be his, and this application was renewed by the defendant from time to time until the spring of 1847. When the contract was made between the defendant and Parker & Billings, both parties understood, that it would have the effect, to place the property in the factory beyond the reach of the creditors of Parker & Billings; but, as between themselves, it was only made for the purpose of securing the defendant for all advances he might make for stock and other articles put into the factory; but the business was so conducted by them, that the community generally understood, that the defendant was principal and Parker & Billings his agents, and the reports, made by Benjamin Billings and others, came to the plaintiff’s knowledge before the sale of wool by the plaintiff. On the twenty seventh day of November, 1844, the machinery in the factory, which had been attached as above mentioned, was sold at sheriff’s sale, and was purchased by the defendant and left in the factory, under a contract with Parker & Billings, that they should pay to the defendant nine per cent, on the cost, yearly, with the privilege of purchasing the same at cost. The freighting for the factory, to and from Boston, from November, 1844, to January, 1847, was done by one Barton, who received from Parker & Billings about $150 therefor. In January, 1847, the defendant called upon Barton, and inquired to whom he charged the freighting, and, on being informed, that the whole account had been charged to him, he said, that he doubted his liability, but that he would look into it; and in a short time afterwards he informed Barton, that he would pay the balance of his bill, which was then about $250,00.</p> <p>Under the circumstances above related, Benjamin Billings, on the eighth day of September, 1846, purchased of the plaintiff the wool sought to be recovered for in this action, which was charged by the plaintiff to the defendant soon after the purchase, and was delivered to Parker & Billings.</p> <p>The county court, May Term, 1848, — Redfield, J., presiding, —rendered judgment for the defendant, upon the report.</p> <p>Exceptions by plaintiff.</p> <p>insisted, that, under the circumstances, the defendant was liable to the plaintiff for the wool, and that it was immaterial, what was the secret arrangement between Parker & Billings and the defendant, inasmuch as the defendant held himself out as the principal, and suffered Parker & Billings to hold him out as the principal, and themselves as his agents, in the business, — and cited Pickering v. Busk, 15 East 38; Long on Sales 233; Munn v. Commission Co., 15 Johns. 44; Perkins v. Washington Ins. Co., 4 Cow. 659; Andrews v. Kneeland, 6 Cow. 354; Williams v. Mitchell, 17 Mass. 98; Odiome v. Maxcy, 13 Mass. 178; Whitehead v. Tuchett, 15 East 407, 412.</p> <p>insisted, that in order to charge the defendant, the auditor should have found, that Benjamin Billings bought the wool upon the defendant’s credit, and that he was authorized to do so by the defendant.</p>

<p>Declarations made by the owner of a farm in the presence of the occupant of the farm, and during his occupancy., and assented to by the occupant, at the time, as to the terms upon which the occupant is managing the farm, may be proved by the occupant, in a suit in his favor against an attaching officer, for taking the products of the farm as the property of the owner, for the purpose of showing, that the occupant, by the contract between him and the owner, was entitled to an undivided half of the produce of the farm.</p> <p>Declarations of the owner of a farm, while the farm is in the occupancy of another person, with whom the owner labors in carrying on the farm, made in connection with some act of the owner, in carrying on the farm, may be proved by the occupant of the farm, in a suit between him and another person, for the purpose of proving the contract, under which the farm was occupied.</p> <p>One tenant in common of personal property may sustain trover against an officer for his undivided moiety of the property, when the officer has sold the whole property upon execution against the co-tenant.</p>

Trustee Process. The suit was appealed by the plaintiff from the judgment of a justice of the peace discharging the trustee. In the county court the principal debtor,- Trask, appeared and entered as claimant, and a hearing was bad- uppn the’ trustee’s disclosure,stating the facts substantially as follows.

Debt upon a jail bond. The plaintiff alleged in his declaration’,' that he recovered judgment against the defendant Dana at the September Adjourned Terfn, 1838, of… Held: that such judgment would be void, or' that it would not be valid, to all intents, until set aside, — but the contrary. Allen v. Fisher et al., 1 D. Ch. 277. Fletcher v. Mott, 1 Aik. 339. Walbridge v. Hall, 3' Vt. 114. Allen v. Carpenter, 1 Vt. 397, Gibbs v. Scott et al., Ib. 147. Evarts v. Gove, 10 Vt. 101.

<p>A sheriff, who arrests' a debtor upon mesne process, may himself become bail for' such debtor, by indorsing his own name upon the back of the writ, in the manner required by statute;</p> <p>A sheriff, who arrests a debtor upon mesne process, and then becomes bail by indorsihg his own name upon the writ, and returns, that he lias thus become bail, is- estopped, when scire facias is brought by the creditor against him as such- bail, from contesting his legal competency thus to become bail upon process-served by himself.</p>

<p>Information, in two counts, — one for selling spirituous liquor in quantities less than one pint, the other for keeping tavern. Plea, not guilty, and trial by jury, June Term, 1848, — Davis, J., presiding.</p> <p>On trial testimony was given on the part of the prosecution tending to prove, that the respondent, on the day alleged in the information, was present at a tent kept by one Hunt, — a caravan of animals being there exhibited, — and assisted Hunt in mixing and selling various kinds of spirituous liquors to many persons, who called for them and drank them and paid the respondent therefor, and that the respondent had no license granted him, under the statute, for so doing; and the declarations of the respondent were proved, tending to show, that he did assist Hunt, on that day, an hour or two, but that he did so without solicitation, and without compensation, and that he had no interest whatever in the business. There was also testimony tending to prove, that pies, cake and fruit were kept for sale at the tent.</p> <p>The counsel for the respondent contended, that if the jury believed, from the evidence, that the respondent was acting gratuitously as the servant of Hunt, in the manner above indicated, he would not be responsible criminally, even though Hunt might have no legal authority to sell liquors ; and that a single act of selling at a tent, on a public occasion, or even continuing to sell at one time for an hour or two, did not present a case within the true intent and meaning of the statute, as charged in either count of the information.</p> <p>But the court instructed the jury, that m order to constitute dealing in spirituous liquors in quantities less than one pint, it was not necessary to find, that the respondent received any pecuniary benefit from the sale ; that selling for another would subject the respondent to the same penalty, as if he were selling for himself, unless he had reason to believe, that his principal was legally authorized to sell in the manner he did ; that the testimony on the part of the prosecution tended to prove, that the respondent had no license; that no evidence had been put in on the part of the prosecution, tending to show that Hunt had not a license, and that the respondent had put in none tending to show that he' had, or that the respondent believed he had, at that time ; that they could take judicial notice, in the absence of any proof either way, that neither the judges of the county court, nor any other body or board of men, had authority by law to grant licenses, extending to the period in question, to sell liquors, except for medicinal, chemical and mechanical purposes; and that nothing appeared in the case, nor was it claimed by the respondent, that the selling by the' respondent, if any, was of that restricted character; and that a single act of unauthorized selling, and more especially a series of acts of that kind, for an hour or two, if they found such to be satisfactorily proved, would constitute the statute offence, as charged in one, or both, of the counts of the information.</p> <p>The jury returned a verdict of guilty against the respondent. Exceptions by respondent.</p>

<p>Upon the trial of an action for an assault and battery, where the defendant relies upon a prior assault by the plaintiff as a justification, the defendant will not be allowed to give in evidence the record of a conviction of the plaintiff, criminally, for such prior assault.</p> <p>The decision of the county court, in determining that the cause of action arose from the wilful and malicious act of the defendant, cannot be revised by the supreme court, so far as it proceeds upon matter of fact.</p> <p>Upon the hearing before the court in reference to the allowance of such certificate, the defendant is not entitled to read affidavits from the jurors, who tried the case, stating that they did not consider the trespass wilful and malicious.</p> <p>Neither has the defendant the right, upon such hearing, to introduce evidence in reference to the character of the trespass; but it rests in the discretion of the court, whether to allow a farther hearing.</p> <p>No legal inference, as to the character of the assault, is to be drawn from the amount of the verdict rendered by the jury.</p>

Trespass guare clausum fregit. Pleas, the general issue, and several pleas in bar. Trial by jury, December Term, 1848, — Poland, J., presiding.

Petition to vacate the judgment of a justice of the peace, rendered upon default against the petitioner, who was summoned as trustee in the suit in which the judgment was rendered, — the petitioner alleging, that he was unjustly deprived of his day in court by fraud, accident and mistake. The defendant, who was the plaintiff in the original suit, moved to dismiss the petition, upon the ground, that one summoned as trustee cannot sustain such petition, under the statute.

<p>Upon a writ of certiorari, in road cases, as upon a writ of error, in cages where that writ lies, the supreme court will revise the proceedings of the inferior tribunal in matters of law; but their decisiop upon questipns of fact, involving the exercise of discretion, can only be revised by placing upon their proceedings the facts, which show that they coulci not, in point of law, render such judgment as they did.</p> <p>And the supreme court, in such cases, will presume as much, and perhaps more, in favor of the regularity of the proceedings of the inferior tribunal, as in acr tions at common law.</p> <p>The questions, how far the public good, or the necessity of individuals, may require a road, or how many persops live upon the road, or whether the road is laid to accommodate the land of one person pnly, are all piatters of fact, to be decided exclusively by the cpmmissjoners and the county cpurt.</p> <p>Upon application for a writ of certiorari, the court will exercise a discretion in denying the remedy, even where jt is obvious, that some formal error has intervened; and in this respect they will consider the aipount of pecuniary interest involved.</p> <p>It is no objection to the validity of the proceedings of the county court, in laying out a cross road, or lane, that it is laid only to land not occupied as a dwelling place. The question, whether, or not, there is convenient access to the land, without laying out the road, is one of fact, to be determined by the county court.</p>

<p>Coarta of probate, in this state, have the entire and exclusive jurisdiction of the settlement of estates, to the same extent, that jurisdiction of matters of contract, or tort, inter vivos, is given to the common law courts. The court of chancery has not concurrent jurisdiction, in this respect, with the probate court, and will not interfere in the settlement of estates, except to aid the jurisdiction of the probate court in those points only, wherein its functions and powers are inadequate to the purposes of perfect justice, and then in the same degree, and for the same reason, that it interferes in other oases, where the principal jurisdiction is in the courts of common law.</p> <p>Unreasonable delay, in the probate court, in proceeding with the settlement of an estate, is no ground for calling in the aid of the court of chancery.</p> <p>Nor will the court of chancery interfere to grant relief, where some of the parties affected by a decree of the probate court were infants, and had no proper guardians appointed, at the time the decree passed.</p> <p>The mere fact, that an administrator, rendering his account in the probate court, will not produce the books and papers of his intestate, and is not compelled by the probate court to do so, is no reason why the court of chancery should interfere in the settlement of the estate.</p> <p>But when there are claims existing between the administrator, or executor, and the estate which he represents, the court of chancery has jurisdiction to examine and adjust them, and the allowance of the claim by the commissioners will not, on account of the defect in parties at the hearing before them, — the administrator representing both debtor and creditor, — be a bar to its re-examination by the court of chancery.</p> <p>Claims against an administrator, for money and property of the estate, which have come into his hands during the administration, are exclusively within the jurisdiction of the probate court.</p> <p>The neglect of an administrator to cause an inventory and appraisal to be made of the dioses in action of the intestate is of no importance in any court.</p> <p>Under the Revised Statutes of this state real estate, to be regarded as an advancement, must be expressed in the deed to be such, or be expressed to be conveyed for love and affection; and if a pecuniary consideration be expressed in the deed, the estate conveyed cannot be made an advancement, by merely showing, that the deed was in fact executed upon the consideration of love and affection.</p> <p>The entire subject of advancement is within the jurisdiction of the probate court.</p> <p>But where the administrators of an estate claim title in themselves to land of the intestate, by virtue of deeds asserted to have been executed by the intestate in his life time, and it appears to the court of chancery, that these deeds were false and fabricated, or were obtained by the administrators out of the usual course, and not in good faith, that court will enjoin the administrators from asserting title under such deeds, and will require them to account for the land as the property of the estate.</p> <p>Where administrators have received money as compensation for trespasses committed by a third person upon the land of the intestate, the court of chancery, to avoid all doubt, may take jurisdiction, so far as to cause an account to be taken in that court for the amount so received, — although it would s'eem, that this matter might be adjusted in the probate court.</p> <p>Where, upon a bill in chancery being brought in favor of the heirs of an estate against the administrators, it appeared, that the intestate, at the time of his decease, held a note for $1000 against the administrators, and had also a credit for $1000 upon the account book of the administrators, it was held, that the court would presume, that these represented different items of indebtedness, and that it was not competent for the administrators, by their answers, without evidence aliunde, to show that the credit was entered for the same indebtedness evidenced by the note; and that the administrators could not avail themselves of an alteration of the words, in which the credit was entered upon their books, without evidence aliunde of their right to make the alteration.</p> <p>Wheye the plaintiff’s claim, as set forth in a bill of chapcery, rests upon a written co.ntract, and the right of action is not barred by lapse of tj.me, the admission of the contract, by the answer, and the allegation of payjnent, or of any other matter merely in discharge, are to be treated as distinct, and the latter must be proved, in order to avail the defendant; but, per Redfield, J., if the claim of the plaintiff rest wholly jn oral jn$of, and the answer of the defendant is relied upon, to make out the plaintiff’s case, the defendant may admit such a contract, and allege, that it was in its inception inoperative, or that it has been subsequently' paid, or released, and the whole answer, upon both points, is to be regarded as evidence, — although the court are not bound equally to believe all parts of it, but may charge the party upon his admission, and refuse to believe what he says in his excuse.</p> <p>Where a will was suppressed by those interested in the estate, and administration was taken without regard to it, and the yviH was never proved in the probate court, the court of chancery decreed the payment of the legacies given by it. Mead et al. v. Heirs of Langdon, Washington Co., 1834, cited by Red-field, J.</p>

<p>Upon the trial of an indictment, in several counts, for violations of the license law by the sale of spirituous liquors, it is not error in the county court to permit the prosecutor, after having given evidence tending to prove as many distinct breaches of the law by the respondent, within the time covered by the indictment, as there are counts in the indictment, to proceed and prove other sales within the same period of time.</p> <p>The putting the prosecutor to his election for what offences he will proceed, in cases of this kind, is matter of practice, and should rest in the sound discretion of the county court; and the most, which the respondent can claim, is, that the election should be made before he is called upon for his defence.</p> <p>A conviction, upon an indictment for a breach of the license law, will be, prima facie, a bar to a second indictment for a similar offence by the respondent previously committed. Bennett, J.</p> <p>The license law of this state, enacted hi 1846, is not unconstitutional.*</p>

Book Account. Judgment to account was rendered, and an auditor was appointed, upon whose report judgment was rendered by the county court, September Term, 1848, — Bennett, J., presiding, — in favor of the defendant. The only questions made in the case were upon the admission, by the auditor, of a deposition, in reference to which the facts were reported as follows.

Assumpsit. The plaintiff declared against the defendant, in the first count in his declaration, as follows ; — “ For that whereas here* “tofore, to wit, on the first day of August, 1841, at Burlington “ aforesaid, the defendant was indebted to the plaintiff in the sum “ of one hundred dollars for work and labor and services, care, skill “ and diligence, before that time done and performed and bestowed “ by the plaintiff in and about the business of the defendant, at his “…

Assumpsit for the use and occupation of a store in Burlington, Plea, the general issue, and trial by the court, September Term. 1847, — Bennett, J., presiding.

<p>Debt upon a judgment rendered by Chittenden county court, March Term, 1838. The writ was served March 9, 1847. The defendants pleaded, — 1. Nul tiel record; — 2. That the cause of action did not accrue to the plaintiff within eight years next before the commencement of this suit j — 3. Payment. These pleas were traversed. Trial by jury, September Term, 1848, — Bennett, J., presiding.</p> <p>On trial the plaintiff gave in evidence the record of the judgment declared upon, and the first and second executions which issued thereon, but did not produce the pluries execution, which it appeared was issued upon the judgment March 27, 1839, and was delivered to a proper officer to execute. The plaintiff, to avoid the presumption of payment and the statute of limitations, then offered in evidence a copy of the record of a suit in chancery in favor of the defendants against the plaintiff, and also the original bill in the same suit, which purported to have been signed and sworn to by both defendants, and proved, that it was in fact signed by the defendant Briggs, but gave ho evidence tending to prove the signature of the other defendant; — from all which it appeared, that the defendants, on the twelfth day of July, 1839, preferred their bill in chancery, therein alleging, that the present plaintiffhad recovered against them the judgment now in suit, and was endeavoring to enforce collection thereof, and that a trustee process was then pending against them in favor of one Pierce, they having told Pierce, before he commenced his suit, that they could not legally resist the plaintiff’s claim, and that they were thus liable to be twice compelled to pay the amount due from them, and praying for an injunction upon the plaintiff from collecting the judgment; and that the injunction prayed for was allowed oft the twenty second day of July, 1839, and the bond for the injunction filed with the clerk of the court of chancery on the twelfth day of September, 1839; and that the answer to said bill was duly filed and the injunction dissolved at the May Term, 1843, of the court of chancery; and that the bill was finally dismissed at the September Term, 1847, of the same court; — to all which evidence the defendants objected, but it was admitted by the court. No other evidence was offered.</p> <p>The county court decided, that the testimony was sufficient to avoid the effect of the statute of limitations, in case it had run upon the judgment, and that the testimony was proper, as tending to rebut the presumption of payment from the non-production of the pluries execution ; and the defendant not wishing to go to the jury upon the issue of payment, a verdict was taken for the plaintiff by consent, subject to exceptions by the defendant to the above decisions of the court.</p>

Covenant. The plaintiff alleged in his declaration, that the defendant conveyed to him, by deed, the equal, undivided half of fifty acres of land on the east end of lot No. 75 in Colchester, with covenants of seisin, of good right to bargain and sell, and against incumbrances, and averred, in general terms, a breach of each of these covenants. The defendant pleaded performance of his covenants. Trial by Jury, March Term, 1847, — Bennett, J., presiding.

Trespass on the Case, brought against the defendant Allen, in his life time, as sheriff of the county of Chittenden, for the default of his deputy in not paying to the plaintiff money collected and received by the deputy upon an execution in favor of the plaintiff against one Nichols and others. Allen died while this suit was pending, and his administrator moved to dismiss the suit, upon the ground that the cause of action did not survive.

Trespass on the Case. The plaintiff alleged, in the first and second counts in his declaration, in substance, that the defendants were a… Held: that though it might be true, that the plaintiff had occasion to travel the road in question in the manner alleged in the declaration, yet that he could not recover for any general damages, which he might sustain in carrying on his business, whether they resulted from his not attempting to travel the road at particular times, by…

<p>A bailment of property, with a power of sale, is a personal trust to the bailee, which he cannot delegate.</p> <p>A. delivered a horse to B., for B. to use, with the power of sale; B. exchanged the horse with C. for another horse, and C. agreed, that he would pay to A. $15,00, as the difference between them, and the horse which C. received was to remain the property of A., until the $15,00 was paid; but B. at the same time told C., that he might trade away the horse, provided he kept the security good. C. accordingly exchanged horses three several times, and the horse, which he obtained upon the third exchange, was attached by the defendant as the property of C. It did not appear, that A. had ratified the acts of C., in exchanging for that horse, and it was held, that therefore the property in the horse had not vested in A., although the $15,00 remained unpaid at the time of the attachment, and that the horse was subject to attachment by the creditors of C.</p>

The first of these cases was a petition to a justice of the peace, pursuant to the statute, to appoint commissioners to appraise the damages sustained by the petitioner, Lyman, by reason of a highway being laid out across his land by the selectmen of Burlington; and the damages being appraised at more than forty dollars, the report of the commissioners was returned to the county court.

The orator alleged in his bill, that Alexander Catlin, on the eighteenth day of March, 1839, was the owner of certain real estate described in the bill, and that he then conveyed the premises to Stephen Haight, by a deed which was absolute in its terms, but which was understood and intended by the parties to be for the sole purpose of securing Haight for certain liabilities, which he had incurred for Alexander Catlin; that the administrator of Haight conveyed the premises to…

<p>The plaintiff sold to the defendant a mare for a specified sum, and the defendant agreed, that, if the mare proved to be with foal, he would pay an additional sum of four dollars to a third person, to whom the plaintiff was indebted in that amount. The mare having proved to be with foal, and the defendant having refused to make the payment as agreed, it was held, that the plaintiff might recover the four dollars in an action upon book account.</p>

Assumpsit. The plaintiff alleged in his declaration, that on the thirty first day of September, 1847, he contracted with the defendant, to purchase of him all the new milk cheese which he then had on hand, and all that he should make between that time and the first day of October, 1847, at seven cents per pound, to be delivered at the wharf at St. Albans Bay on the fifteenth day of October, 1847, and that he advanced to the defendant fifty dollars on account of said…

Trover for a mare and colt. Plea, the general issue, and trial by jury, June Term, 1849, — Royce, Ch. J., presiding.

<p>Under the provisions of chap. 50, sec. 12, of the Revised Statutes, executors and administrators are placed upon the same ground with other suitors, as it respects their liability for costs, which may he adjudged against them.</p> <p>Where a creditor of an estate appealed from a decision of commissioners allowing a balance against him in favor of the estate, and in the county court he recovered judgment in his favor for damages and costs, it was held, that execution for the costs was properly issued by the county court against the administrator personally, as for his own debt.</p>

<p>Where land is conveyed by a deed with covenants of warranty, and a creditor of the grantor, claiming that the deed is fraudulent, causes an execution in his favor to be levied upon the land as the property of the grantor, the grantor is a competent witness for the grantee, to prove that the deed was not fraudulent, in an action of ejectment brought by the grantee against one who claims title under the levy.</p> <p>And where the defendant, in such case, proves, that the grantor was indebted to the execution creditor, at the time the deed was executed, and claims, that the deed was executed with the fraudulent intent to avoid that debt, it is competent for the plaintiff to prove, that the grantor had at the same time claims to a considerable amount against the creditor, for property delivered and services rendered, notwithstanding no claim of offset was made by the grantor, at the time the creditor recovered his judgment against him. The judgment, being rendered subsequent to the execution of the deed, does not conclude the graptee as to the existence of any indebtedness to the creditor, or its amount, or .the circumstances attending it.</p> <p>Any testimony, in such case, which shows, that the grantor had, or supposed he had, at the time of the execution of the deed, claims against the creditor sufficient to meet the demand of the creditor against him, has a direct tendency to rebut the presumption of any fraudulent intent in the grantor to avoid the rights of that creditor.</p>

Assumpsit upon a written contract of guaranty, Plea, the general issue, and trial by jury, December Term, 1849, — Bennett, J., presiding.

Trespass on the Case for so negligently managing a ferry boat, that the person and property of the plaintiff, who was a passenger in the boat, suffered injury. Held: that though a case like this was not a partnership, yet the interest was joint, and all might sue for the freight. All persons interested in the freight are liable for injuries. Story on Bail. §§ 506, 507. Waland v. Elkins, 1 Stark.

Book Account. The writ was served upon the defendant, by attachment of property, by W. G. Edgerton, who was specially deputized by the sheriff by indorsing upon the writ these words, — “I deputize W. G. Edgerton to serve and return this writ. (Signed) J. Edgerton, Sheriff.” The defendant pleaded in abatement, that W. G. Edgerton, at the time he was deputized and made service of the writ, was an infant, under the age of twenty one years. To this plea the plaintiff demurred.

Book Account. The action was commenced before a justice of the peace, and came to the county court by appeal, taken by the plaintiff. Judgment to account was rendered, and an auditor was appointed. The defendant insisted before the auditor, that a portion of the plaintiff’s account was barred by the statute of limitations.

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

Book Account. The plaintiffs were described as residents of the city, county and state of New York, and the defendant as a resident of Rutland, in the county of Rutland. The writ was made returnable to the county court, and was dated March 7,1848.

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

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows. The plaintiffs offered as a witness James L. Porter, to whom the defendant objected, as being interested in the event of the suit; and testimony was introduced, tending to prove such interest. The witness thereupon made and executed a full release of all his interest in the result of the suit, and delivered the release to the plaintiffs’ counsel.

Trespass or} the Case. The plaintiff alleged in the first count in his declaration, that on the seventeenth day of February, 1847, he purchased of Addison Buck certain land in Pittsford, which was then under attachment in a suit in favor of Holbrook, Carter & Co. against said Buck, Blanchard Rand and Germain F. Hendee; that judgment was rendered in said suit against all the defendants therein, and execution issued, which was delivered, for service, to the defendant Edgerton,…

Trover for a mare and colt. Plea, the general issue, and trial by jury, April Term, 1849, — Hall, J., presiding. The substance of the testimony is sufficiently detailed in the opinion delivered by the court. Verdict for the plaintiff for the value of the mare and colt. Exceptions by defendant.

In this case the plaintiff declared against the defendant in a plea of the case, “ For that the defendant, before and at the time of the commit- “ ting of the grievance hereinafter next mentioned, held and enjoyed, “ as tenant thereof to the plaintiff, and by the sufferance and per- “ mission of the plaintiff, a certain farm or tract of land, with the “ appurtenances, situate in said Rutland, bounded on the north by “ land of Edgar L. Ormsbee, on the west by Otter Creek, on…

<p>An infant, under the age of twenty one years, cannot be specially authorized to serve mesne process, by the magistrate signing it.*</p> <p>Form of a sufficient plea in abatement, in such case.</p>

Trespass for an assault and battery. Plea, the general issue, and trial by jury, September Term, 1847, — Hall, J., presiding.

Trespass quare clausum fregit. Pleas, the general issue, and license; and the plea of license was traversed. Trial by jury, September Term, 1849, — Hall, J., presiding. On trial the plaintiffs proved their title to the premises described in the declaration, and gave proof of possession under that title.

Trespass for taking two cords of wood, two baskets, two pitch* forks, two horses, one harness, and one wagon. Plea, the general issue, with notice, that the defendant Charles H. Slason attached the property by virtue of a writ, which he was legally deputised to serve, in favor of one Langdon against the plaintiff, and that the other defendants aided him in so doing, at his request. Trial by jury, September Term, 1848, — Hall, J., presiding.

Ejectment for certain land in Brandon, described as situated upon the south side of a certain river. Plea, the general issue, and trial by jury, April Term, 1849, — Hall, J., presiding. Held: that the exception extended both to the land, upon which the factory stood, and the water privileges appurtenant.

Audita Q,uerela. The plaintiff alleged is his declaration, that the defendant Berry sued out a writ against him, made returnable before Martin G. Everts, a justice of the peace, at his office in Rut-land, on the eighth day of June, 1846, at one o’clock in the afternoon, and that the said justice was not present at his office at any time on the return day of the writ, whereby the suit was discontinued; but that the plaintiff, on the twenty ninth day of June, 1846, procured…

Scire Facias against the defendant as bail, upon mesne process, of one McKinney. The defendant pleaded nul tiel record, and also pleaded, that this- writ of scire facias was not brought within one year after the plaintiff recovered judgment against McKinney in the original suit; and both pleas were traversed, and issue joined. Trial by the court, November Adjourned Term, 1847, — Hall, J., presiding.

This was an action to recover the penalty given by statute, — Rev. St., chap. 95, sec. 20, — for receiving and justifying a fraudulent conveyance of property.

On the nineteenth day of January, 1828, Simeon Wright mortgaged certain land to Francis Slason, to secure the payment of five hundred dollars, specified in two promissory notes. On the eighteenth day of August, 1829, Wright mortgaged the same land to Reuben R. Thrall, to secure the payment of a note for $482,70; and subsequently Wright conveyed to Thrall his equity of redemption in the premises.

This was a petition to the court of chancery, April Term, 1847, in which the petitioner alleged, that heretofore he preferred his bill in chancery against the petitionees, and that, at the September Term, 1840, of the court of chancery, it was decreed, that the bill be dismissed, with costs; but that it was stated in the decree, as written by the solicitor and signed by the chancellor, that the bill was dismissed “ upon the merits,” with costs; — and the petitioner prayed,…

Isaac McDaniels preferred his bill, at the April Term, 1846, of the court of chancery, against the Flower Brook Manufacturing Company, a corporation constituted by the legislature of this state, in… Held: at a time to be fixed by said agent, or clerk, at the counting room of the corporation, within three weeks from the time such application be made.” At the annual meeting, held on the fourth day of January, 1842, William Wallace was elected clerk and agent.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported, that after this suit was commenced and entered in court, the defendant being in New York, where the plaintiff resided, the plaintiff threatened to sue him upon the account there, and denied, that he authorized, or directed, the bringing of a suit in this state; and that thereqpon the defendant paid to the plaintiff fifty five dollars, and received from him a receipt in full of…

<p>The plaintiff, who was a physician, contracted with the overseers of the poor of the town of P., that he would render medical services to a pauper, who was then chargeable to P., and that, if the town of P. should, .in a contemplated order of removal, succeed in establishing the legal settlement of the pauper to be in the town of S., he should receive from P. a reasonable compensation for his services, but if P. failed to establish the settlement of the pauper to be in S., he should receive nothing for his services; — and it appeared, that P. did succeed, upon the order of removal, in establishing the settlement to be in S. Held, that the contract, so made.between P. and the plaintiff, was not invalid, as between them, but that the plaintiff might recover from P. the value of his services, notwithstanding it had been adjudged, that, as between the towns of P. and S., the contract was so far against the policy of the law, that no recovery could be had by P. for expenses for the services so rendered.</p> <p>The overseers of the poor have authority to bind the town by sucb a contract,— since in no event was the plaintiff to receive more than a reasonable compensation for his services.</p> <p>Evidence, in such case, that the overseers of the poor of P. agreed between themselves, before making the contract with the plaintiff, that the only contract which they would make with him should he one different in .its terms from those above stated, is not admissible, for the purpose of proving, .that such different contract was made.</p>

<p>Whore, for the purpose of ascertaining the division line between land of the plaintiff and land of the defendant, it became necessary to ascertain the true south west corner of the town of Readsboro, and the parties agreed, in writing, that a certain line should be the boundary between them, provided a corner, which they supposed to be the true south west corner of the town, should not be moved “ on proper and lawful authority and manner,” and that, if the true corner should ever be established to be in any other place, the boundary line between them should be located in accordance therewith, it was held, that the parties must have intended to refer to such a tribunal, for ascertaining the true corner of the town, as the law bad invested with authority to decide the question.</p> <p>And the parties having farther agreed, that, if the location of the corner of the town should ever be changed, and the division line between them be changed accordingly, the party, who should, in pursuance of this contract, have occupied land, which in fact was owned by the other party, should pay rent, after a rate agreed upon for each acre, for the land so occupied, it was held, that this did not create between them the relation of landlord and tenant, and that, upon the true location of the division line being ascertained, the party owning land in the occupancy of the other, under the agreement, might sustain ejectment against the occupant, without giving six months notice to quit.</p> <p>But it was held, that the agreement between them was a sufficient license to the occupant to continue in possession of the land, while the contract continued unrevoked, and that no action could be sustained by the owner of the land against him, without first giving reasonable notice of his intention to commence such suit.</p> <p>The act of the plaintiff, in such case, in turning his- cattle upon the land previous to the commencement of the suit, — he having subsequently erected his portion of the division fence, as required by the contract, — cannot be considered notice of a revocation of the contract.</p> <p>Judgment of the county court for the plaintiff, upon a report of referees, reversed in this court, and judgment rendered for the defendant.*</p>

Indebitatus Assumpsit for money had and received, money paid, and money lent. Held: that a due bill in these words, — “ Due A. B. $80 on demand,” — sustains the action; Hay v. Hyde, 1 D. Ch. 214.

Assumpsit. The plaintiffs declared, in the first count in their declaration, that, on the second day of December, 1846, in consideration that the plaintiffs would sell and convey to the defendants a certain piece of land, describing it, whereon to erect a school house, and whereon the selectmen had located such school house, subject to certain restrictions, to wit, that the district should hold the land for the purpose of erecting a school house thereon, that said school…

Petition for a writ of certiorari. Bowen and others, the petitionees, had preferred their petition to the county court, that that court would cause to be surveyed and laid out a public highway in the town of Whitingham. Commissioners were appointed, who reported, that a pent road should be laid out. And the county court, April Term, 1849, accepted the report, and ordered a pent road to be established and constructed.

Edward R. Campbell held a note, for $550, against the defendant Tower, dated April 29, 1837, which was secured by mortgage upon certain land, which Tower owned in fee, subject to a life estate in a third person ; but before the mortgage was recorded, the defendant Sawtell attached the land, upon two writs, as the property of Tower. The mortgage was assigned by Campbell to the orator, August 29, 1841.

This was a grand juror’s complaint; and the case came to the county court by appeal.

This was an action upon a promissory note, and was commenced by trustee process. Held: that the correction must be by plea in abatement; and so in Evarts v. Georgia, 18 Vt. 15, — which is saying, that the service was not void, but voidable; and the defect set up in those cases was interest in the officer, as in this case. And see Spalding et al. v. Sioift, 18 Vt. 218, and Gilman v. Thompson, 11 Vt. 643.

Debt upon a judgment of commissioners. The action was originally brought against Rice, Asaph Fletcher and Grover Dodge ; but Fletcher deceased, during its pendency in the supreme court, and Dodge was discharged upon a plea of bankruptcy.

Debt upon judgments. In ihe first count of his declaration the plaintiff declared upon a judgment, alleged to have been rendered in his fayor against the defendant by- the supreme Court for the county of Orange, March Term, 1845, for $72,49, costs of suit. In the second count he declared upon a judgment rendered by the supreme court for Windsor county, February Term, 1841, for $8,00, costs of suit.

Debt upon judgment. Pleas, — 1. Nul tiel record2. Payment; — 3. That the plaintiff had caused the amount of the judgment, and all .interest, cost and charges, to be levied and fully satisfied of the lands and estate of the defendant. These pleas were traversed, and issue joined. Trial by the court, September Adjourned Term, 1849, — Kellogg, J., presiding.

<p>Scire Facias upon a recognizance by the defendant for costs in a suit in favor of Herrick Ingraham against this plaintiff, — judgment by nonsuit being averred to have been rendered in that suit. The defendant pleaded nil debet, and also pleaded, that Herrick In-graham died during the pendency of the former suit, that H. E. Stoughton was appointed his administrator, that the administrator neglected to enter and prosecute the suit, and was cited, after two terms had elapsed, to prosecute the suit, and that, the administrator neglecting then- to appear, the judgment of nonsuit was obtained. To these pleas the plaintiff demurred.</p> <p>The county court, November Term, 1848, — Kellogg, J., presiding, — adjudged the pleas insufficient. Exceptions by defendant.</p>

Trover for one hundred and eleven sheep and five hundred pounds of wool. The action was originally brought against Rowell and one Jabesh Hunter, who deceased during its pendency. Plea, the general issue, and trial by jury, May Term, 1S48, — Redfield, J., presiding.

Trespass de bonis asporfatis for taking certain logs from land of the plaintiff in Braintree. Plea, the general issue, and trial by jury, May Term, 1S49, — Kellogg, J., presiding. On trial the plaintiff, to prove his title to the land in question, offered in evidence, among other testimony, a copy from the office of the town clerk of Braintree, of a deed from Elijah French to Ezra Weld, dated February 3, 1795, purporting to convey the same land.

Ejectment for land in Plymouth. Plea, the general issue, and trial by jury, May Term, 1848, — Redfield, J., presiding. On trial the plaintiff, to show title in himself to the land described in his declaration, gave in evidence the charter of Plymouth, dated July 6, 1761, by which it appeared, that one John Grimes was an original proprietor of said town.

Habeas Corpus. The petitioner alleged, that he was imprisoned in jail by virtue of mesne process, in an action of assumpsit, signed by a justice of the peace, in favor of Sumner S. Wheeler of Plymouth, demanding in damages the sum of $70 ; that when he was arrested, he gave notice to the officer, that he should forthwith appear before the magistrate, who signed the writ, and submit himself to examination on oath, upon the question whether he was about to abscond or remove…

Petition for a writ of certiorari to the commissioners appointed to appraise damages for land and materials taken by the Vermont Central Rail Road Company. The petitioners alleged, that the defendant applied to the commissioners to appraise and award damages, which had accrued to him on land held by him in his own right and as administrator of Hiram Shepard, and that the commissioners, after giving due notice to the parties, had met, and, upon hearing, had made their award.

<p>A writ of scire facias, to enforce a judgment rendered against a trustee, is insufficient, if it be only alleged therein, that the plaintiff recovered a judgment against the defendant, as trustee. It should appear, for what the trustee was made chargeable.</p> <p>A writ of scire facias, for the purpose of enforcing a judgment rendered by a justice of the peace, cannot be brought before another justice of the peace. It can only issue from the court, in which the judgment was rendered.</p> <p>Queere, Whether scire facias can be sustained, to enforce a judgment that one is chargeable, as trustee, for a specific sum of money.</p>

Assumpsit. The plaintiff declared in substance, that Ford, the bankrupt, previous to his bankruptcy, agreed with the defendant, that he would manufacture into cloth for the defendant a quantity of wool, and would deliver the cloth to the defendant, from time to time, as it should be manufactured, and that the defendant agreed, among other things set forth in the declaration, that he would send the cloth to market, and cause it to be sold, and would pay to Ford, for the…

<p>Thu recital in a deed, of the receipt of the consideration is only prima facie evidence of the amount paid, and is subject to explanation by showing by parol, thjat nothing in reality had 'been paid.</p> <p>lAe words, “ the same containing about five and three fourths acres, be the same more or less,” following, in a deed, the description by metes and bounds, of the land conveyed, are to be treated as part of the description merely, and not as conclusive proof against the grantee, that he bad purchased and agreed to pay for the land, without reference to the:quantity.</p> <p>The grantee may prove by parol, in sutíh case, that the contract was really for a certain number of acres, at a specified price for each acre, and that a mutual mistake was made in the measurement, by .which the quantity-was supposed to be larger than it really was; and he may recover, in an action for money had and received, the amount paid by him for the land above ihe amount which should have been paid, according to the terms of the contract.</p> <p>And it is not necessary for the grantee, in such case, to offer to rescind the contract, before bringing his action.</p>

Trespass de bonis asportatis for a quantity of pine logs. Plea, the general issue, and trial by the jury, May Term, 1847, — Redfield, J., presiding. On trial the plaintiff gave in evidence the charter of the town of Norton in the county of Essex, showing that the township was originally divided into sixty five rights, or shares.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. The plaintiff’s account was for flour sold, to the amount of $31,25. The defendant received the flour of Owen Spalding.

Scire Facias. The plaintiff alleged, that at the May Term, 1841, of Windsor county court he recovered judgment in his favor against one Charles Edmunds for $40,57 damages and $69,15 costs; that a review was entered by Edmunds, and the defendant Ingraham recognized to the plaintiff in the sum of fifty dollars, conditioned that Edmunds should prosecute his review and pay to the plaintiff all intervening damages, occasioned to the plaintiff by being delayed, with additional…

Debt upon two judgments, rendered by the district court of the state of Maine, held at Alfred, in the county of York, February Term, 1847, — one for $434,91 damages, and $9,27 costs, and the other for $111,76 damages and $9;27 costs. The defendant pleaded, — 1. Nul tiel record ; upon which plea issue was joined ;— 2. Nil debet; to which the plaintiff demurred ; — 3.

Trover for two beds, with bedding, three small boxes, a quantity of crockery, wooden and tin ware, two flat irons, two lamps, one gridiron, a pair of brass andirons, shovel and tongs, and a carpet. Plea, the general issue, and trial by jury, May Term, 1849, — Kellogg, J., presiding.

Book Account. The action was commenced before a justice of the peace and came to the county court by appeal, taken by the defendant. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows. The plaintiff’s account, which accrued in July, 1848, was allowed at $80,00.

<p>Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows.</p> <p>The first charge in the plaintiff’s account was for four oxen, sold to the defendant in December, 1847, which the auditor allowed at $165,00. The second charge was for interest upon a part of the price of the oxen, in reference to which it appeared, that the defendant purchased the oxen to drive to market, a®d paid $100 when he received them, and agreed to pay the residue of the price after his return from Brighton, and to leave the money with one Barnes. Soon after the defendant returned from Brighton, he called upon Barnes, in order to leave the money, but not finding him in a suitable condition to receive it, he did not leave it; but afterwards, in consequence of a message left at his house by the plaintiff, he left the money with one Howe for the plaintiff, and the plaintiff received' it. This payment was made twenty eight days after the defendant’s return from Brighton; the plaintiff made no claim upon the defendant for interest, and made no charge of it, until the time of the hearing before the auditor, which was Feb. 21, 1849. The auditor disallowed the charge. The third charge was for “ going to West Fairlee after sheep,” fifty cents. The plaintiff rendered the service at the request of the defendant, and the price charged was reasonable; but in October, 1846, the defendant purchased of the plaintiff a heifer, to drive to market, and sold her for fifty cents less than the price he paid the plaintiff; the plaintiff did not send the heifer, to be sold on his account, nor did he agree to pay any loss, which the defendant, might sustain in selling her ; but the defendant, after his return from market, informed the plaintiff of the loss, and the plaintiff replied, “ I will give you in going after the sheep to Fairlee, which is worth fifty cents.” The auditor disallowed this charge also. The plaintiff’s fourth charge was for interest on $500, forty days. In 1844 the defendant purchased of the plaintiff cattle to drive to market, to the amount of about $1300, and at one time was owing the plaintiff $500, which he promised to pay after his return from Boston. The defendant, twenty one days after his return, left the money at the plaintiff’s house, and the plaintiff received it. The plaintiff did not claim interest upon this sum, until the hearing before the auditor. The defendant resided about nine miles from the plaintiff’s house. This charge, also, the auditor disallowed. The defendant had paid to the plaintiff $165,00 for the oxen above mentioned, and that sum was charged in his account. At the commencement of the hearing before the auditor, the controversy between the parties was wholly in reference to the price, which the defendant was to pay for the oxen, — the plaintiff insisting, that the price was to be $175,00, and the defendant claiming, that it was to be $165,00. After the testimony upon this point was closed, or nearly closed, the plaintiff entered upon his account the other charges above mentioned, and the defendant charged upon his account the loss upon the heifer above named, and some other charges, all of which were disallowed by the auditor. The auditor reported, that there was nothing due to either party, and that the defendant should receive his costs.</p> <p>The county court, June Term, 1849, — Redfield, J., presiding, —accepted the report and rendered judgment thereon for the defendant. Exceptions by plaintiff.</p>

Assumpsit upon a promissory note for $16,50, dated April 1, 1844, and payable in one year from date. The action was commenced before a justice of the peace, and the defendant filed in offset there a claim upon book account, to the amount of more than $30,00. After judgment and appeal, the defendant pleaded in the county court the general issue, and also filed a declaration in offset upon book account, under Rev. St., chap. 34, sec. 8-11.

Assumpsit. The action was commenced before a justice of the peace, and a trial was had and judgment rendered for the plaintiff, and the defendant appealed ; and at the same time the justice taxed the defendant’s costs, and allowed him for travel from his residence in Ohio, eight hundred miles, $40,00. The defendant did not attend at the trial, and had made no actual travel in consequence of the suit.

<p>The firm of Carter, Coolidge & Co., a partnership consisting of Carte?; Coolidge and Childs, was dissolved by the death of Coolidge. Subsequently the defendants executed a promissory note, which was made payable “ to the late firm of Carter, Coollidge & Co.” Childs sold his interest in the note to Carter, and then Carter indorsed the note, without recourse, jn the name of Carter, Coolidge & Co., to the plaintiff. Held, that the plaintiff thereby acquired the legal interest in the note, and might sustain an action thereon in his own name, as indorsee.</p>

This case came to the county court by appeal from the judgment of a justice of the peace, taken by the plaintiff, and was carried by the plaintiff, upon exceptions, to the supreme court, and the judgment of the county court was there reversed, and final judgment was rendered for the plaintiff in the county court, but for a sum less than all his costs; and the county court, June Term, 1849, — Rediteld, J., presiding, — decided, that the plaintiff was entitled to an amount of…

<p>Trespass on the Case for an injury sustained by reason of the insufficiency of a public highway. Plea, the general issue, and trial by jury, June Term, 1849, — Redfield, J., presiding.</p> <p>On trial the plaintiff gave evidence tending to prove, that there was an ancient highway in the town of Newbury, passing upon a ridge of land, with a descent on each side of thirty feet, or more; that the road was about twenty five feet in width; that the Connecticut and Passumpsic Rivers Rail Road Company located their rail road across said highway, and, in its construction, had made an excavation across the highway, thereby preventing all travel thereon ; that north of the excavation, for six or eight rods, the company had placed in the highway a quantity of large blocks of granite, for the purpose of constructing an arch, by means of which travellers on the highway might pass over the railroad; that the company, previous to making the excavation, had made a convenient by-way for the public travel, to the acceptance of the selectmen of the town, by repairing an old road, not previously much used ; that this by-way diverged from the highway about half a mile from the excavation, the curve of the two roads, at the point of divergence, being about equal;. that before the company commenced their excavation, they erected timbers across the highway, some rods north of the excavation, so as to intercept all travel, which they kept there most of the time, until the injury occurred to the plaintiff, and until the highway was filled with blocks of stone, as before stated ; that the plaintiff, coming from the north,' with a horse and wagon, in a dark night, and having been a few years previously familiar with the road, and not knowing of any alteration, passed south, over the highway, and, as he approached the blocks of granite, his horse inclined to the east side of the road, to avoid the granite, and finally stopped; and that the plaintiff urged his horse forward, when the horse sprung to the west, to avoid going off the bank on the east side, by which movement the hind wheels of the wagon ran off the bank on the east side, and, with the body, separated from the forward wheels and went down the declivity, injuring the plaintiff.</p> <p>The defendants gave evidence tending to prove, that, before the travel upon the highway was interrupted, they placed a guide board at the point where the by-way diverged, directing travellers to that road, and also placed a pole across the highway, at the same point, elevated some feet above the surface of the road, which was kept up at all times, both night and day, so far as it was in the power of the officers of the town to do so; but it appeared, that this pole would be occasionally removed, and probably by persons who travelled the highway. The defendants also gave evidence tending to prove, that several families lived on the highway, between the point, where the by-way diverged, and the excavation, — one family living about fifteen rods north of the excavation, and that there was no way, in which they could travel from their dwellings to other parts of the town, except to pass north, over the highway; and that for this reason no permanent obstruction was placed across the highway, where the guide board was erected ; and the evidence tended to prove, that if the rail road company had kept the timbers across the highway, where they first erected them, or if they had erected a barrier north of the place where they obstructed the road by the blocks of granite, the injury would not have happened to the plaintiff. It appeared, that there was no dwelling house between the place where the rail road company placed their obstruction and the excavation, and that it was necessary for the men to remove this barrier, which consisted of hewn timber, in order to draw the granite to the place where it was to be deposited, and that from this cause the barrier was frequently left down through the night, and that it was so left down, at the time the plaintiff was injured; and that the granite blocks, near to the excavation, were so placed, as nearly to cover the surface of the highway, but that near the barrier the road was but little obstructed by them.</p> <p>The defendants requested the court to charge the jury, that the rail road company had the right, under their charter, to make the excavation above mentioned, and to obstruct the highway, so far as was necessary, to enable them to construct their road ; but that it was the duty of the company to protect the public, as well as the town, against the consequences of their acts; and that, if the plaintiff was injured by reason of want of due care on their part, his remedy was against the company; and that, under the circumstances of this case, the plaintiff could not recover against the town, but should have brought his action against the company.</p> <p>The court instructed the jury, that, the general laws of the state having imposed upon towns the duty of keeping the roads in repair, those who had occasion to travel had a right to expect of them the performance of that duty, so far as it could be performed, by common care and diligence; that the fact, that the rail road company had a right, by their charter, to make an excavation across the highway, would not relieve the town from the obligation to exercise reasonable care and watchfulness, to see that the public had a proper by-way to pass around the excavation, and that proper obstructions were placed and kept up, to divert the travel from the highway, where it was rendered dangerous by the rail road company, so far as this could be done by common care and diligence; and that, if the town intrusted this to the rail road company, and they omitted to do it faithfully, whereby injury occurred to the plaintiff, and he was himself guilty of no want of common care, the town were liable to the plaintiff, and he was not obliged to look to the company, even if they had also been negligent, and might so have become liable to any one suffering injury on that account.</p> <p>Verdict for plaintiff. Exceptions by defendants.</p> <p>The case shows, that the town were in no fault. All the means were used, to divert travel from the highway, which could reasonably be required. Permanent obstructions would be impossible, which would preclude several families from communication with the rest of the town.</p> <p>Was not the road so far discontinued temporally by the act of the town in placing the guide board and adopting the new road, built by the company as a substitute, as to shield the town from liability 1 Tinker v. Russell, 14 Pick. 279.</p> <p>The rail road company may have been negligent, and yet the town not at all so. The case contains no evidence, that the town relied upon the rail road company to maintain a barrier, or furnish a by-way. The by-way was adopted by the selectmen, the guide board was placed by them, and the pole across the highway. It is true, the company had placed timber across the road, before they began the excavation, and it appears, that it was kept in place almost constantly. The town merely relied upon the timber being allowed to remain in its position; and they had a right to rely upon this ; as the timber was placed by the company for the protection of the public, the town had a right to rely upon it, that neither the company, nor any other person using the road, would leave the barrier down. It would have been precisely the same, if the town had placed the barrier ; the company might still have left it down and this accident have happened. The company had a right to pass and repass there, in prosecuting their work, and so to remove the barrier, whether placed by the town, or the company ; and there is no reason, why it was not equally prudent to rely on this barrier, as to erect another, when it was known, that the company could place and replace it at their option.</p> <p>The suit should have been commenced against the company. Their charter provides, that they shall so construct their road, as not to obstruct the safe and convenient use of the highway. Neglect of this duty would give a right of action to the party injured, against the company. Why should the town be held liable? The charter shifts the obligation to repair to the company ; and it is not merely useless circuity of action, to sustain this recovery, and to require the town to seek redress of the company; there is great reason to doubt the right of the town, after a verdict against them, to recover of the company. The town is not liable for the fault of the company, as a master for his servant; and the law does not recognize a several liability in two principals, who are unconnected. Quantum. v. Burnett et al., 6 M. & W. 497. Rapson v. Cubitt, 9 lb. 710. Stone v. Cartwright, 6 T. R. 411. Laugher v. Pointer, 5 B. & G. 315. Nicholson v. Mounsey, 15 East 384. Brown v. Lent, 20 Yt. 529. Lane v. Cotton, 12 Mod. 472.</p> <p>But a recovery here will shield the company, — the party really in fault. The town cannot recover of them. After a judgment against the town, the parties are in pari delicto. Holman v. Johnson, Cowp. 343. March v. Abel, 3 B. & P. 38. Griswold v. Wadding ton, 16 Johns. 487. Harlow v. Humiston, 6 Cow. 189. Pech v. Ellis, 2 Johns. Ch. R. 137. Drew v. New River Co., 6 C. & P. 754. Smith v. Smith, 2 Pick. 621. Butterfield v. Forrester, 11 East 60.</p> <p>The rail road company had the right to make the excavation; but did that excuse the town from all care in relation to the highway ? The town are liable for all damages happening upon roads, which they are “ bound to keep in repair.” Rev. St. 139, § 26. They are bound to keep in repair all public highways within the town. The right of the company to make their road across the road in question did not take away its character as a highway. It only gave a right to use it for a particular purpose, for a short time, thereby temporarily interrupting the ordinary use of it. The company are amenable to the town. The selectmen have the subject under their control; individuals have no such control. To hold that towns are under no obligation to the traveller, in cases like the present, would be to remove the principal if not the only guaranty of safety to his person and property. The case of Currier v. Lowell, 16 Pick. 170, is directly in point. Rev. St. of Mass. 246, § 22. 6,Pick. 59. 13 lb. 94. Sec. 11 of the charter of the Boston & Lowell Rail Road Company is identical with sec. 14 of the charter of the Conn. & Pass. Rivers Rail Road Co. The decision in Currier v. Lowell was recognized as sound law in Lowell v. Boston 4* Lowell JR. JR. Co., 23 Pick. 24, where the town of Lowell was allowed to recover from the rail road company the single damages recovered in Currier v. Lowell.</p>

Trover for a quantity of round pine timber. Plea, the general issue, and trial by jury, June Term,. 1.849, — Redfield, J., presiding.

Tjrover for a quantity of boards. Plea, the general issue, with notice, that the defendant attached and sold the property, in due form of law, as sheriff, as the property of one Harrison Bailey, upon process against Harrison Bailey and others in favor of one Buchanan. Trial by jury, June Term, 1849, Redfield, J., presiding.

Trespass for taking a quantity of boards. The defendant Everett being an infant, under the age of twenty one years, a guardian ad litem was appointed, at whose request judgment was rendered against him, as by default. The defendant Bliss pleaded the general issue. Trial by the court, December Term, 1849, — Red-field, J., presiding. It appeared, that one Homer, who occupied a saw mill, sawed boards for Bliss, which were afterwards piled in the mill yard.

Trespass guare clausum, fregit. The case was referred under a rule from the county court, and the referee reported the facts as follows.

Ejectment for land in Chelsea. The suit was brought in the name of the heirs of D. Azro A. Buck, as plaintiffs, for the benefit of Sereno Allen, to whom the plaintiffs conveyed the demanded premises… Held: that the bank and not the thread of the river was the bound intended. Albee v. Little, 5 N. H. 277.

Assumpsit, to recover for the use of water to carry a carding machine owned by the defendant in the village of Wells River, in Newbury, from 1832 to 1847. Plea, the general issue, and trial by jury, June Term, 1S49, — Rebfielb, J., presiding.

Book Account. Judgment to account was rendered, and auditors were appointed, who reported the facts as follows. The plaintiff’s account was for labor from April, 1840, to February, 1844.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows. The account of the plaintiff was for keeping and boarding the horses and driver of a stage coach, which run between Montpelier and Warren.

Book Account. The action was commenced before a justice of the peace, the writ being served July 7, 1848, and came to the county eourt by appeal. Held: that “ a party may avail himself of any defence before the auditor, which he could plead in the county court.” If this were a case, where the plaintiff could make a legal tender, it should have been done before the commencement of this action. This is not alleged in the replication. Bro., Tender, pi. 9. Bac.

Assumpsit. The plaintiff declared against the defendants in these words:— “ For that whereas, heretofore, to wit, on the eleventh day of ‘ March, A. D. 1846, to wit, at Middlesex, in the county of Wash- ‘ ington, one John Diamond entered into a certain contract with the ‘ said Barker & Haight, whereby the said John became obligated ‘ to the said Barker & Haight to execute, construct and finish, on ‘ or before the first day of July, A. D. 1S47, in every respect in the ‘ most…

Trespass guare clausum fregit, for breaking and entering the plaintiff’s dwelling house.

Audita Querela, to vacate the judgment of a justice of the peace.

Trustee Process. The process was in these words:— “ State of Vermont, ) To any sheriff or constable of Vermont, ‘ Lamoille County, ss. ) Greeting. ‘ By the authority of the State of Vermont, You are hereby com- ' manded to attach the goods, chattels and estate of John D. How- ‘ ard, late of Hydepark in the county of Lamoille, but now in parts * unknown, to the value of one thousand dollars, and him notify to ‘ appear before the county court next to be holden within and for ‘…

<p>A proceeding, for the purpose' of affiliating a bastard child and compelling aid from the father in its support, is, in its nature, confined to causes of action arising -within this state. Such- a proceeding is altogether a matter of internal police, and in its very nature as exclusively local, as is the administration of criminal justice.</p> <p>Where, in such case, it appeared, that the-child! was begotten and born out of the state, and that the parties never resided within this state, the mother being only temporarily here at the time the proceedings were instituted, and that the child, at the time of the trial, was in the care of a family residing, in this state, the suit was dismissed, upon, motion..</p>

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported, that he found due to the plaintiff $11,28, and also reported, that, upon the trial before him, the plaintiff offered to prove, by his own testimony, as admissions of the defendant, a conversation between himself and the defendant, after the writ was served, and when the defendant was endeavoring to effect a compromise, or settlement, with the plaintiff, to avoid a law suit, and that…

Assumpsit upon a promissory note for $121,46, not negotiable. Plea, the general issue. The suit was referred under a rule from the county court, and the referee reported the facts substantially as follows. The plaintiff gave in evidence the note declared upon, the execution of which was conceded; and the defendant then produced a release of the note, executed by the plaintiff.

The facts were agreed to be as follows. The pauper, John Knox, at the time the order was made, was fourteen years of age, and an illegitimate child. Held: that the statute of 1817, being in its terms wholly prospective, could not have a retrospective effect and change a settlement acquired previous to the enactment of that statute. The construction of the statute, — Rev. St., c 15, § 1, — is determined by the case of Burlington v. Essex.

<p>Communications made by a party to one who is acting as his counsel in the commencement and management of a suit, but who has not been admitted as an attorney, and who is not a clerk in the office of an attorney, are not privileged, although he may be pursuing the study of the law under the direction and instruction of one who is an attorney.</p>

Trespass quart clausum, frcgit, for entering upon lot No. 5 in the twelfth range of lots in Craftsbury and cutting and carrying away two pine trees. The writ was served January 23, 1846. The defendants severally pleaded the general issue. Trial by jury, June Term, 1847, — Davis, J., presiding.

On trial the plaintiffs proved the execution of the note by Heath, and the indorsement and delivery of the note, for a valuable consideration, April 23,1842, by the defendant to the plaintiffs, “ waiving notice.” The plaintiffs also proved, that the defendant, immediately after the indorsement, left this state and went to the state of Maine, where he remained until the autumn of 1842; that Heath, July 23, 1842, paid to the plaintiffs a part of the amount due upon the note,…

The plaintiff declared in assumpsit for money paid. Plea, the general issue, and trial by jury, June Term, 1850, — Poland, J., presiding.

This was an action on the case, to recover the expense of building a division fence, — commenced before a justice of the peace and brought to the county court by appeal.

Replevin for a cow. The defendant moved to dismiss the suit, for the reason that no security for costs was given by way of recognizance', at the time the writ was issued. It appeared, that a replevin bond had been given, in the form required by the statute. The county court, December Term, 1848, — Poland, J., presiding, _overruled the motion; to which decision the defendant excepted.

Trespass qu. cl.freg., for breaking and entering the plaintiff’s dwelling house in the town of Victory. Plea, the general issue, with notice of special matter of defence, and trial by jury, May Term, 184.9, — Poland, J., presiding.

Indebitatus Assumpsit. Plea, the general issue, and trial by jury, September Term, 1848, — Bennett, J., presiding. The action was brought to recover of the defendant $48,00, alleged to have been paid to him by the plaintiffs in January, 1841, as usury, and also the sum of $48,00, paid for like purpose in January, 1842.

Ejectment for land in Williston. Plea, the general issue, and trial by jury, March Term, 1849, — Bennett, J., presiding.

<p>The ad damnum, in a writ returnable before a justice of the peace, is taken as a test of apparent jurisdiction only in cases, where the declaration does not otherwise limit the extent of the plaintiffs’ claim. In an action of debt upon judgment, the plaintiffs’ demand is limited to the amount of the judgment described in the declaration and the interest upon it; and if that amount be within the limit of the justice’s jurisdiction, the excess of the ad damnum, beyond that amount, will be treated as unmeaning, for any purpose of affecting jurisdiction.</p>

Ejectment, brought by the plaintiff, May 9,1849, as administrator of Thomas Clark. The defendant pleaded in abatement, that the administrator had not, at the time of bringing his suit, given any administration bond. The plaintiff replied, that such bond was given ; and issue was joined. Trial by the court, September Term, 1849, — Poland, J., presiding.

<p>Appear from the court of chancery. It appeared, that John Nason, August 20, 1833, being the owner of certain land in St. Albans, subject to the payment of an annual rent to one Jotham Bush, conveyed the same, by deed, to Jonathan M. Blaisdell and received from Blaisdell a bond of defeasance, conditioned for a re-conveyance of the land upon payment of the sum of $375,00, with interest, on or before April 1, 1S34 ; and Nason having neglected to make the payment at the day specified, Blaisdell then took possession of the land, and claimed to own it in his own right, free from all equity of redemption; and on the sixth day of April, 1836, Na-son assigned the bond of defeasance, and at the same time conveyed all his interest in the land, to Phelps Smith. On the twenty first of July, 1820, Nason, by quitclaim deed, had conveyed all his interest in the same land to his sisters Peggy Nason, Sally Morrill, Betsey Ainsworth and Polly Ryan, and at the September Term, 1827, of Franklin county court, he had consented to a judgment against him, in favor of Jotham Bush, in an action of ejectment brought to recover the possession of the same land. In November, 1836, Phelps Smith applied to the orators, who were partners in business as attorneys at law and solicitors in chancery, and employed them to examine the title to said land, and retained them to commence such suits in law and equity, to recover the possession of the land, as might be deemed necessary, and for that purpose delivered to them the bond of defeasance, above mentioned, and the deeds constituting the evidence of his title to the land. The orators having ascertained, that the title to the land, at law, was in Peggy Nason and her sisters, under the conveyance made by John Nason in 1820, Smith, upon the advice of the orators, purchased the title of Peggy Nason and Betsey Ainsworth to the land and received from them a deed thereof, dated November 21,1836, and delivered this deed, also, to the orators, for the purposes above named, and the orators, at the request of Smith, and for his benefit, then commenced an action of ejectment, in the name of Peggy Nason, against Blaisdell, to recover the land,— which suit was entered in Franklin county court, April Term, 1837, and was prosecuted by the orators, as attorneys, until September Term, 1845, of said court, when they suffered a discontinuance, without costs, to be entered, for the alleged reason, that Smith had conveyed his interest in the land to the defendants Clark and Maeck, and they refused to furnish money for the necessary expenses of farther prosecuting the suit. On the fourteenth of February, 1838, Smith purchased of Sally Morrill her title to the land, and received a deed thereof, which he also delivered to the orators. Subsequently the orators, at the request of Smith and for his benefit, commenced a suit in chancery in favor of Smith against Blaisdell, stating the title of Smith to the premises and praying relief, and this suit was entered in court, January Term, 1840, and was prosecuted by the orators, as solicitors, until April Term, 1845, when a decree was made therein by the court of chancery, that Smith, on or before the first day of May, 1S45, pay to the clerk of the court $390,60, being the amount specified in the bond from Blaisdell to Nason, with interest to May 1, 1834, and that Blaisdell, within ten days-thereafter, release and convey to Smith all his title to the premises, with a covenant of warranty against all claims and demands of any person, claiming said premises, or any part thereof, under Blaisdell, and that Blaisdell pay to Smith the costs of the suit in chancery, taxed at $44,51. While the action of ejectment and the suit in chancery, above named, were pending, Blaisdell filed a bill in chancery against Smith and Peggy Nason, touching the matters in litigation in those suits, and the orators, upon the employment of Smith, defended said suit, and procured a final decree, that the same be dismissed. The orators have retained the possession of the bond of defeasance and the deeds and documentary evidence of the title of Smith to the land from the time the same were delivered to them by Smith, for the purposes above named. On the fourth day of October, 1841, Smith mortgaged this land, with other premises, to one Austin, — who had knowledge of the pendency of the suits above named, — and this mortgage, on the first day of July, 1844, was purchased of Austin by the defendants Clark and Maeck, for valuable consideration, — they then having knowledge of the pendency of the suits above named; — and Clark and Maeck, on the twenty eighth day of April, 1845, paid to the clerk of the court of chancery $390,60, in pursuance of the decree above mentioned, and Blaisdell, on the same day executed a deed of said premises to Smith, and Smith, on the same day, conveyed all his right and title to said premises, by an absolute deed of conveyance, to Clark and Maeck; and Clark and Maeck took possession of the premises, and subsequently bargained a portion thereof to the defendant Stevens, who entered into possession, but had received no deed and made no payment on account of his purchase. Smith had become insolvent, and there remained due to the orators, for their services and disbursements in the several suits above named, about the sum of $626,00. And the orators insisted, that they had a specific lien upon said land, for the payment of the amount so due to them, and prayed, that the defendants might be decreed to pay to the orators the amount so due to them, or be decreed to release the land to the orators, upon being repaid the amount paid by them to the clerk of the court of chancery, in pursuance of the decree above mentioned, — which sum the orators offered by their bill to pay to the defendants.</p> <p>The court of chancery dismissed the bill; from which decree the orators appealed.</p> <p>It is well established, that attorneys and solicitors have a general lien upon all the papers and documents of their clients in their possession, not only for their costs and charges in the particular suit, for the prosecution of which the papers were delivered to them, but for their costs and charges for other professional business; and it is submitted, that a solicitor has a lien, for his costs and charges, on the judgment, or estate, recovered by his diligence, as well as upon the mere documentary evidence of title. Jleartt v. Chipman, 2 Aik. 162. Walker v. Sargearit, 14 Vt. 247. Hutchinson et al. v. Howard, 15 Vt. 544. Barnesley v. Powell, Ambl. 102. Turvin v. Gibson, 3 Atk. 720. 1 Smith’s Ch. Pr. 692,695. 1 Newl. Ch. Pr. 427. 2 Madd. Ch. 571. If the orators have a lien, a court of equity will enforce it. 2 Story’s Eq. 571, sec. 1215 et seq. This lien cannot be defeated by the bankruptcy, or assignment, of the client. Heartt v. Chipman and Hutchinson et al. v. Howard, above cited. Martin v. Hawks, 15 Johns. 405. Smith never had any legal title to the land in question; consequently he conveyed none to his grantee Austin by his deed in October, 1841. The defendants have no legal title, upon which they can rest their defence. By their purchase of Austin’s interest and by Smith’s conveyance to them they have become the mere assignees of the latter’s equitable interest in the estate, with full knowledge of all the infirmities of his title, and subject to all the equities subsisting between him and the orators.</p> <p>We insist, that the orators are not entitled to any part of the relief prayed. The circumstance, that no authority can be brought to sustain it, is conclusive evidence against it. The authorities cited by the orators do not sustain the legal propositions advanced by the bill. Courts of equity have been frequently called upon to protect the solicitor’s lien ; but it will be found, that the lien has been limited to papers of the client, or to the costs recovered, or funds in court, or to be paid into court. Pow. on Mort. 1063. It will also be found, that the lien of the solicitor is more circumscribed, than that of attorneys in the courts of common law. The solicitor can have no greater aid from the court to secure his lien, than that of the conveyancer, and he can only retain the deeds. Hollis v. Claridge, 4 Taunt. 807. Pow. on Mort. 1063. The rule in England is, that an attorney cannot take from his client, ah ante, a legal mortgage ; and if he cannot, it is difficult to perceive, how he can have a lien on the land itself, which, if carried out, is in substance the same. Pow. on Mort. 1064. Pitcher v. Rigby, 9 Price 79. Jones v. Tripp, 1 Jac. 322. To allow the lien would conflict with the registry system and with the statute of frauds, would render the title to real estate insecure and uncertain and impede its sale and transfer. The two classes of cases in the English law, which bear the strongest analogy to the doctrine contended for by the plaintiffs, are, first, the vendor’s lien for the purchase money, secondly, an equitable mortgage arising from the deposite of title deeds; but it will be found, that the analogy is extremely faint. In the first case payment of the purchase money is an essential part of the contract, and the right of the vendee is not complete, in equity, although a conveyance has been made, until the purchase money is paid. Per Ld. Eldon, 2 Rose 328. The case of Russell v. Russell, 1 Bro. C. C. 269, is the first reported case, establishing an equitable mortgage, since the statute of frauds of 29 Car. 2. It was based on a case decided just previous to the statute. The best English judges have considered the doctrine in opposition to the statute and la-merited the decision, but considered themselves bound by the authorities. Per Ld. Eldon, in Ex parte Coming, 9 Ves. 115. Ex parte Wether ell, 11 Ves. 398. Ex parte Whitbread, 19 Ves. 209. Ex parte Haigh, 11 Ves. 403. Norris v. Wilkinson, 12 Ves. 192. Pow. on Mort. 1052.</p>

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. All the items in the plaintiff's account, except the first, were admitted to be correct.

In this case the defendant, oi) trial, offered the deposition of Eunice Parker, to which the plaintiff objected. The deposition was taken by a justice of the peace, in August, 1847, to be used, as stated in the caption, at the ensuing September Term of Rutland county court.

Debt upon a jail bond, written and executed in the common form of a jail bond executed upon commitment on final process, but given by one Weeks, as principal, and the defendant, as surety, January 24, 1846, upon the commitment of Weeks to jail, upon mesne process then pending in court in favor of the plaintiffs against him, on occasion of the surrender of Weeks in court in discharge of the bail given at the time he was arrested upon the original writ.

On the fifteenth day of February, 1828, Benjamin Needham, Jr., conveyed to his son, Horace Needham, by deed, for the consideration, as expressed in the deed, of $1000,00, one third of his farm, on which his son then resided with him, with a condition annexed to the deed, in these words; — “ The condition of the above deed is such, that whereas ' the said Benjamin Needham, Jr., the grantor, hath made the above * deed to the said Horace Needham for the express purpose of se- ‘…

<p>To enable the owner of goods to waive the tort and sue in assumpsit, when they have been wrongfully taken from him, the goods must have been converted into money.</p> <p>When sheep break from the enclosure of their owner into an adjoining pasture, and there remain for some considerable time, the owner of the pasture cannot, of his own mere motion, waive the tort and sue in assumpsit for the pasturing of the sheep. To authorize this there must have been what would amount to the consent of both parties, that it should be considered as matter resting in contract.</p> <p>Where it appeared, that the plaintiff’s sheep from time to time broke into the defendant’s pasture through the plaintiff’s fence, and the defendant sent word to the plaintiff, that he must take care of them, and the plaintiff said to the messenger, that he did not know what he should do with the sheep, and that he expected he should have to pay the defendant for the sheep running in his pasture, and this was told to the defendant by the messenger, and the defendant continued to drive the sheep from his pasture, whenever he saw them there, as well after the message was sent to the plaintiff, as before, but made no more personal complaint to the plaintiff respecting them, it was held, that these facts did not show any assent to make the pasturing of the sheep matter of contract, and that the defendant could not recover of the plaintiff for pasturing the, sheep, in an action of book account, or assumpsit.</p>

<p>Debt upon a judgment. To the second and fourth pleas in bar of the defendant the plaintiff demurred. The second plea was, that execution issued, in due form of law, upon the judgment described in the declaration, and that the defendant was arrested and committed to prison by virtue thereof. In the fourth plea, after averring the commitment, as in the second plea, it was alleged, that the defendant, upon the commitment, gave a jail bond, in due form of law, and was thereupon admittéd to the liberties of the prison, and that he departed therefrom, whereby the bond became forfeited to the sheriff and his assigns. The county court, November Term, 1847, — Redfield, J., presiding, — adjudged these pleas insufficient. Exceptions by defendant. Judgment was rendered for the plaintiff at a subsequent term and the case passed to the supreme court for revision.</p> <p>It is admitted, in the pleading, that the defendant was arrested and committed to jail on the judgment, which is now sued, and that he has given a jail bond. The arrest is, at common law, a satisfaction of the debt. By the arrest and commitment and the taking of the jail bond, the judgment is merged in the bond. The creditor can recur to his judgment in two cases only, which are provided by statute; — 1. When the defendant has been admitted to the poor debtor’s oath, and thus cancelled the bond; — 2. When, after three months’ imprisonment, the creditor releases the debtor and discharges the bond; Rev. St. 460, <§§ 41, 42. If the debtor passes out of the prison liberties, it is not a voluntary escape on his part,— for if so, he might be re-taken; Jaques v. Withy, 1 T. R. 557. Rally v. Kimbal, 1 D. Ch. 151. But this cannot be; Jameson v. Isaacs, 12 Vt. 611. Willard v. Lull, 20 Vt. 373. The defendant having pleaded, that he was duly committed to prison, if the plaintiff claim, that the contingencies have happened, by which the statute allows him to' proceed against the property of the defendant, he should reply that fact.</p> <p>The second plea is bad, because it onlj? alleges the commitment of the defendant, without averring any satisfaction of the judgment, or that the defendant escaped by consent and direction of the plaintiff.</p> <p>The fourth plea is also bad, for not alleging satisfaction of the judgment. Nothing will operate to vacate a judgment, when the defendant is committed on execution, except satisfaction of the execution, or an escape of the debtor by consent of the creditor. And, by statute, the creditor may release his debtor from imprisonment, after he has been committed three months, and still leave the judgment in full force. The defendant’s giving a bond to the sheriff does not alter the case; the bond is only a security for the sheriff, and if the debtor escape, the plaintiff has, at his election, a remedy on the judgment. 1 D. Ch. 297.</p>

<p>After an appeal has been taken from the probate court, and the bond for the appeal has been filed by the appellant and approved by the court, and the appeal allowed, the probate court have not power to order or permit that bond to be cancelled and another bond to be substituted for if.</p>

Audita Querela. The complainants alleged, that the defendant, Silver, sued out a writ of attachment against them, declaring an assumpsit, returnable April 28, 1846, before a justice of the peace, and caused it to be served upon Whitney, by attaching his property and giving him personal notice thereof, and upon Titus, by a nominal attachment of property and leaving a copy at his residence in Montpelier, in the hands of his wife; that at the return day of the writ Whitney…

This was an action against the defendant for taking more than legal fees for serving a writ in favor of the plaintiff upon one Norton. Plea, the general issue, and trial by the court, June Term, 1850,— Poland, J., presiding. On trial the facts appeared as follows.

The petitioner applied to be discharged from imprisonment on an execution issued on a judgment rendered against him by the supreme court of Vermont.

This was a petition filed by Ephraim Chase, who had been duly decreed a bankrupt, for his discharge. The material facts are stated in the opinion delivered by the court.

This was an information against a horse, seized as forfeited for having been imported or brought from Canada into the United States in violation of. the revenue laws thereof.

This was an action of ejectment to recover lands claimed by the plaintiff, an alien, and subject of Great Britain. The plaintiff having died intestate pending the action, and letters of administration on his estate having been granted by the court of probate in Vermont, the administrator, a resident citizen of Vermont, appeared, and, the death being suggested on the record, moved for leave to enter and prosecute the action.

This was an information against a vessel and cargo of lumber seized upon the waters of Lake Champlain. The information contained several counts, but all but two were abandoned. One of the counts relied upon charged a forfeiture of the vessel for having on board articles of merchandize of foreign growth and manufacture, without being enrolled and licensed.