Volume 23 — Vermont Reports

Trespass on the Case, to recover for an injury to the plaintiff’s horse, alleged to have been occasioned by the insufficiency of a public highway. Plea, the general issue, and tidal by jufy, December Term, 1843, — Royce, Ch. J., presiding. At the time the injury complaiiied of was received, which was January 12, 1842, one Thrasher was driving the horse in question, harnessed to a single sleigh, early in the morning, after it had become light, but before sdnfise.

<p>Indictment, in three counts, for violations of the license law of 1846. Trial by. jury, March T., 1848, — Bennett, J., presiding.</p> <p>On trial the attorney for the government introduced testimony tending to prove three distinct sales of spirituous liquors by the respondent at different times, and then offered farther testimony tending to prove sales of spirituous liquors by him at other times. To this last testimony the respondent objected ; but it was admitted by the court.</p> <p>The counsel for the respondent, after having argued to the jury the questions of law as well as of fact, requested the court, among other things, to charge the jury, that, this being a criminal trial, all the questions of law and fact arising in the case were exclusively within the determination of the jury, and that they were the paramount judges both of the law and the facts,</p> <p>The court did not so charge the jury; but, after stating to the jury the principles of law, which should govern the prosecution, in a manner that was satisfactory to the respondent, and to which there was no exception, proceeded to say to the jury, that it was their duty to receive the law from the court, and to conform their judgment and decision to the instructions which the court had given them, in applying the law to the facts of the case, as they should find them; that they alone were responsible for a correct finding of the facts; but that it was not within the legitimate province of the jury to revise the decision of the court in regard to-the matters of law, which the court have given them in charge, and return a verdict in violation of and contrary to the instructions which they received ; but it was their duty faithfully to conform to such instructions.</p> <p>The jury returned a verdict of guilty upon each of the counts. Exceptions by respondent.</p> <p>This being a criminal prosecution, the court erred in charging the jury, that they were not judges of the law of the case, but must fullow the direction of the court. This, we insist, is in direct opposition to one of the oldest and best settled principles of the common law. An examination will show, that ■ the charge of the court contravenes all authority upon the subject, both English and American, (with two exceptions) from the Year Books to 1835.</p> <p>It is admitted, that the judges are the constitutional advisers of the jury, and that the jury should pay great respect to their opinion; but the jury should never compromise their oaths by following the judges, when clearly convinced, that the charge of the court was wrong. Co. Litt. 228. 4 Bl. Com. 361. Bushel’s Case, decided 22 Charles II, cited by Kent, J., in People v. Crosswell, 3 Johns. Cas. 369. Trial of the Seven Bishops, 4 Harg. St. Tr. 395, (1688.) Rex v. Woodfall, 5 Burr. 2661, (1770.) 1 Chit. Cr. L. 520. Hen-field’s Case, -Wharton’s St. Tr. 87, (1793.) The Sedition Law, passed in 1798, declares, that the jury shall have a right to determine the law and the facts, as in other cases. Whart. St. Tr. 337. Frier’s Case, lb. 587, (1797.) Callender’s Case, lb. 710, (1800.) Georgia v.-Bráilsford et al., 3 Dal. 4. 2 Wilson’s Lectures 372. Commonwealth v. Knapp, 10 Pick. 498. 13 Pick. 550. Coffin v. Coffin, 4 Mass. 25. United States v. Wilson, 1 Baldwin 108. State v. Snow, 6 Shep. 346. The English courts, during the struggle of their government to put down the freedom of the press, took the side of the government, and determined, that in prosecutions for a libel the jury could only decide as to the fact of the publication and the inuendoes, and the court would determine as to the intent, and whether libel, or not. But soon after the trial of the Dean of St. Asaph, 3 D. & E. 429, n, parliament interfered and passed an act, 32 Geo. Ill, declaratory of the right of the jury to pass upon the whole case, entitled an “ Act to remove doubts relating to functions of jurors in cases of libel.” This settled the question in England. The judges having disagreed in the case of People v. Crosswell, 3 Johns. Cas. 369, the legislature of New York, the same year, (1804,) passed an act making the jury judges of law and fact, as in other criminal cases. In this state the question was directly raised in State v. Wilkinson, 2 Vt. 480, and the opinion of the court fully expressed in favor of the rights of the jury.</p> <p>The only cases, that can be found in the English courts, where any of the judges favored the doctrine now claimed by the prosecutor, are King v. Lilburne, 1 Harg. St. Tr. 69, 81, 82, 1 Car. II, in 1649; and the trial of Algernon Sidney, 3 Harg. St. Tr. 805, before Judge Jeffries. The former was before an extraordinary commission, eight years after the Star Chamber was abolished; but the jury returned a verdict of not guilty, and although examined before the council of state, nothing farther was done with them, or with the case. The dictum of Ch. J. Best, in Levi v. Milne, 4 Bing. 195, [13 E. C. L. 396,] only applies to cases of libel. The first time the doctrine seems to have been favored by any American court was on the trial of Battiste, 2 Sumn. 243, in 1835, — where Judge Story charged the jury, that they must take the law of the' case from the court; but he permitted the counsel to argue the law to the jury. The case of The Commonwealth v. Porter, 10 Met. 263, which is believed to be the only case, where the full bench have held this doctrine, presents the singular absurdity of deciding, that the. defendant’s counsel have a right to argue questions of law to the jury, — but the jury have.no right to decide them. On the trial of Dorr for treason against the state of Rhode Island, Ch. J. Durfee told the jury, they must take the law from the court.</p> <p>This doctrine expired in England, with Jefferies, in 1688; it is of very recent origin here, beginning only fourteen years back, confined to two states, Massachusetts and Rhode Island, and in the last probably wholly political; and opposed to it is the long and well settled practice of the English courts and bar,, repeated decisions of the United States’ courts from 1794, of the supreme court of the United States, the supreme courts of Massachusetts, New York, Maine and Vermont, the authority of eminent elementary writers, and the justice and propriety and security of the rule itself.</p> <p>insisted, that the prosecutor, having introduced evidence tending to prove three distinct sales of spirituous liquors, should not have been allowed to introduce evidence tending to prove other sales.</p> <p>The county court acted in its discretion, in admitting the evidence objected to ; and the jury were not misled thereby.</p> <p>The court very properly told the jury, what the duties of the court were, and for what the jury were held responsible. United States v. Battiste, 2 Sumn. 243. Commonwealth v. Porter, 10 Met. 263. Commonwealth v. White et al, 10 Met. 14. Best, Ch. J., in Levi v. Milne, 13 E. C. L. 396.</p>

Trespass for taking a quantity pine logs. Plea, the general issue, with notice of special matter of defence, and trial by jury, December Term, 1848, — Poland, .T., presiding.

Scire Facias upon a recognizance for an appeal. The declaration set forth the condition of the recognizance in the words of the statute. Plea, nul tiel record. Trial by the court, June Term, 1850. Poland, J., presiding.

Indictment for a nuisance, for inclosing a portion of a public common in in the town of Westford. Held: that “ the question of nuisance, or no nuisance, is for the jury.” There is no case, where a public improvement is held indictable as a nuisance. The deed contains the intention of the grantor, to appropriate the land in question to public use; and although the town takes the fee, it is subject to this condition.

Book Account. Judgment to account was rendered, and auditors were appointed, who reported the facts substantially as follows. The plaintiff presented an account against the defendant, which he claimed accrued in 1845 ; but which the defendant insisted was merged in an award made between the parties in 1846.

Trespass on the Case, for an injury sustained by the plaintiff by reason of the insufficiency of the turnpike road of the defendants. It was alleged, that the plaintiff was one from whom toll was legally demandable by the defendants, at the time the injury accrued. Plea, the general issue, and trial by jury, September Term, 1848, — Bennett, J., presiding.

Trespass for the seduction of the plaintiff’s daughter. Plea, the general issue, and trial by jury, March Term, 1849, — Bennett. J., presiding.

Trespass for a quantity of pine boards. Plea, the general issue, and trial by jury, September Term, 1849, — Bennett, J., presiding. The plaintiff, as constable of the town of Colchester, had attached the boards in question as the property of one Myers, and the defendant, after the attachment, had taken them and converted them to his own use.

Audita Q,uerela. The complainant alleged, that the defendant sued out a writ against him, in an action upon note, returnable before Lyman Cummings, a justice of the peace, at the office of Lyman & Chittenden, in Burlington, on the twenty first day of September, 1846, at nine o’clock in the forenoon, and caused the same to be served by attaching the complainant’s property, and that the complainant attended at the place of trial on the return day of the writ, but the justice…

Scire Facias upon a recognizance to the treasurer of the county of Chittenden, by one Samuel P. French as principal and the defendant as surety, conditioned, in the form required by the statute, that French, who was bound up to the county court, by a justice of the peace, for a violation of the provisions of the license law of 1846, should make his personal appearance before the county court and abide such order as should be there made against him. The defendant demurred.

Indebitatus assumpsit for goods sold and delivered. Plea, the general issue, and trial by jury, September Term, 1850, — Bennett, J., presiding.

Assumpsit upon a promissory note for thirty dollars, dated December 1, 1846, executed by the defendant, and made payable to the plaintiff in one year. Plea, the general issue, and trial by the court, September Term, 1849, — Bennett, J., presiding.

Assumpsit upon a promissory note for $400,00, dated March 20, 1847, payable to the plaintiff, on demand, and signed by the defendants, and… Held: until the agreement hereafter stated; that in July, 1848, the plaintiff, the defendant Henry Boynton, and Noble Boynton and Burritt, of the firm of Boynton & Burritt, met together, — and Noble Boynton claimed, that the plaintiff should repay to his firm the $65,0.0, extra interest, above mentioned, — and Henry Boynton, for B. & H.…

<p> Promissory note. Surety. Waiver. Burden of proof. Usury. Commission. Custom- </p> <p>The defendant, as surety, executed two promissory notes to the plaintiff, amounting to $600,00, with the understanding, that the principal debtor upon the note was indebted to the plaintiff, upon account, to an amount which could not then be conveniently ascertained, and that the note was to stand as security to the plaintiff for the amount of that indebtedness, as it should be subsequently ascertained upon settlement. The principal was indebted to the plaintiff individually and also to a firm, of vyhich the plaintiff was a member; and the plaintiff, when he received the note, understood, that it was to stand as security for both classes of indebtedness; and the principal, being aware of this understanding on the part of the plaintiff, made no objection. And it was held, that if the plaintiff, when he received the note, believed, that the defendant understood, that the note was to be good for both claims, the defendant was liable to that extent; but that otherwise the defendant, as surety, would be liable only for the amount of the plaintiff’s individual account.</p> <p>And it appearing, that the defendant, when called upon by the attorney of the plaintiff for payment of the first note, before the second note fell due, asked for delay, and said he would pay it as soon as he could, and subsequently, — which was also before the second note fell due,— made a partial payment, and promised to pay the rest soon, and said nothing about any defence, it was held, that the county court erred in instructing the jury, that this was in effect saying, that there was no defence, and acknowledging the notes valid to the full amount,— it also appearing, that the amount of deduction claimed by the defendant was less than the amount of the second note.</p> <p>If a party would avoid the effect of a promise made by him, by insisting that it was made in ignorance of material facts, the burden rests upon him of proving that he was thus ignorant.</p> <p>A contract between a commission merchant and the owner of property intrusted to him to sell, which provides, that the commission merchant shall make advances of cash to the owner from time to time, as the property is delivered, and shall be allowed a specified commission for effecting sales, and legal interest for the money advanced, and also five per cent, for the money so advanced, is usurious and void to the extent of the five per cent.</p> <p>Where goods are consigned to a merchant to sell, and he consigns them to another merchant to sell, a custom, for each merchant to charge the commission usually charged for a sale, is void, as being against common reason and common justice. Spear v. JVewell, Rutland Co., cited by Redfield, J.</p>

<p> Bill of exchange. Accommodation indorsers. </p> <p>Where different persons successively Indorse accommodation paper, before it goes into circulation, for the mere purpose of obtaining a discount for one of the parties, they will be held to undertake jointly or severally to pay it, upon proper demand and notice, if the party obtaining the discount does not meet it at maturity. And parol evidence is admissible, to show the circumstances, under which the bill was signed.</p> <p>As between accommodation indorsers, who all sign, before the paper is put in circulation, at the request of the person for whose benefit it is made and to give him credit, the order of the indorsement raises no presumption of any obligation among themselves, different from what arises from the other facts in the case. ' v</p>

Trespass on the Case, brought against the defendant Allen, as sheriff of the county of Chittenden, for the default of his deputy, in two counts. In the first count the default alleged was the not paying to the plaintiff the amount of an execution, for $571,40, against Timothy W. R. Nichols, Timothy S. Nichols, John Hand, Wesley Hazeltine, Silas McClellan and Luther M. Bates, which it was alleged the deputy had collected.

<p>Trespass on tiie case. The plaintiff declared against the defendant, as follows:—</p> <p>For that whereas, by the law and custom of this state, innkeepers, who keep common inns for the reception, lodging, and entertainment of travellers and guests putting up at and abiding in the same, are bound to keep the goods and chattels, brought by such travellers into and being within their respective inns, safely and without any diminution or loss; and whereas the said defendant, before and at the time of the loss hereinafter next mentioned, was and from thence hitherto hath been and still is an innkeeper, and as such innkeeper the said defendant hath, during all that time, kept and still doth keep a certain common inn for the reception, lodging and entertainment of travellers, that is to say, a certain inn at said Castleton, to wit', at said Burlington ; and whereas also, the said defendant so being such irjkeeper, and so keeping said inn, as aforesaid, one Andrew Roe, the servant of the said plaintiff, heretofore, to wit, on the first day of January, A. D. 1850, at said Castleton, to wit, at said Burlington, he the said Andrew then and still being the servant of the plaintiff, put up at and was then and there received into the said inn, as a traveller and guest, by the said defendant, and then and there brought into the said inn two certain mares-, one double harness, two horse blankets and two halters, of the said plaintiff, of great value, to wit, of the value of four hundred dollars, and which said mares, harness, blankets and halters were then and from thence until and at the time of the loss hereinafter mentioned within the said inn, and the said Andrew, then and still being the servant of the said plaintiff, as aforesaid, during all that time abided as a traveller and guest therein, to wit, at said Burlington; yet the said defendant, so being such innkeeper, as aforesaid, not regarding his duty as such innkeeeper, did not keep the said mares, harness, blankets and halters, so brought into and so being in the said inn, as aforesaid, safely and without diminution, or loss, but, on the contrary thereof, the said defendant and his servants so negligently and carelessly behaved and conducted themselves in that behalf, that afterwards, and while the said Andrew, then and still being the servant of the plaintiff, as aforesaid, so abided in the said inn, as aforesaid, to wit, on the same day and year last aforesaid, the said mares, harness, blankets and halters were, by and through the carelessness, negligence and default of the said defendant and his servants in that behalf wrongfully and unjustly burned and destroyed by a fire, which then and there broke out within said inn, and was caused by some person or persons to the said Andrew and the plaintiff as yet unknown, and were and still are thereby wholly lost to the said plaintiff, to wit, at said Burlington.</p> <p>Also in a farther plea of the case, for that whereas by the law and custom of this state innkeepers, who keep common inns for the reception, lodging and entertainment,of travellers and guests putting up at and abiding in the same, are bound to keep the goods and chattels, brought by such travellers and guests into and being within their respective inns, safely and without any diminution, or loss; and whereas the said defendant, before and at the time of the loss hereinafter next mentioned, was and from thence hitherto hath been and still is an innkeeper, and as such innkeeper the defendant hath, during all that time, kept and still doth keep a certain common inn for the reception, lodging and entertainment of travellers and guests, that is to say, an inn at said Castleton, to wit, at said Burlington ; and whereas, also, the said defendant so being such innkeeper, and so keeping said inn, as aforesaid, one Andrew Roe, on the second day of January, A. D: 1850, at said Castleton, to wit, at said Burlington, he the said Andrew then and still being the servant and agent of the plaintiff, put up at and was then and there received into the said inn, as a traveller and guest, by the said defendant, and then and there brought into the said inn two certain other mares, one double harness, two horse blankets and two halters, of the said plaintiff, of great value, to wit, of the value of four hundred dollars, and put up the same at. and in the said inn, and left the same in the said inn, for the said mares to be therein stabled, fed and baited and duly taken care of, and for the said harness, blankets and halter also to be therein duly taken care of by the defendant, as such innkeeper, for reasonable gain, Jure and reward to be paid by the said Andrew to said defendant, and the defendant, as such innkeeper, as aforesaid, then and there received the said mares, harness, blankets and halters into the said inn for the purpose and on the occasion aforesaid, which said mares, harness, blankets, and halters were then and from thence until and at the time of the loss hereinafter mentioned within the said inn for the purpose aforesaid, and .the said Andrew, then and there during all that time and still being the servant of the said plaintiff, as aforesaid, during all that time abided as a traveller and guest therein, to wit, at said Burlington ; yet the said defendant, so being such innkeepér, as aforesaid, not regarding his duty as such innkeeper, did not keep and take care of the said mares, harness, blankets and halter, so brought into and so being in said inn, as aforesaid, safely and without diminution or loss, but on the contrary thereof the said defendant and his servants so negligently and carelessly behaved and conducted themselves in that behalf, that after-wards, and while the said' Andrew, then and still being the servant and agent of the plaintiff, as aforesaid, so abided in the said inn, as aforesaid, to wit, on the day and year last aforesaid, the said mares, harness, blankets, and halters were, by and through the carelessness, negligence and default of the said defendant and his servants in that behalf, wrongfully and unjustly burned and destroyed by a fire, which took place and broke out within said inn and was caused by some person or persons to the said Andrew and the plaintiff unknown, and were and still are thereby wholly lost to the said plaintiff, to wit, at said Burlington.</p> <p>There was also a count in trover. Plea, the general issue, and trial by jury, September Term, 1850, — Bennett, J., presiding.</p> <p>On trial, it was conceded, that the defendant was the keeper of an inn at Castleton, and that, in January, 1850, the agent of the plaintiff was received as a guest at the defendant’s inn, with the property described in the declaration, belonging to the plaintiff; and that the horses and other property were, as is usual in such cases, put into the barn of the defendant, which was a part of the premises, and, at the usual time for closing the stable, the barn was locked by the defendant; and that about day light the next morning, and while the property was thus in the custody of the defendant, as an inn keeper, the barn was discovered to be on fire, supposed to be the work of an incendiary, and the horses and other property were burned and destroyed ; and that there was no negligence, in point of fact, in the defendant, or his servants, in the care of the barn and of the property in question. Testimony was given to the jury in regard to the value of the property destroyed, and, under the direction of the court., they assessed the plaintiff’s damages at $166,66, subject to the opinion of the court as to the plaintiff’s right to recover any damages, upon the facts agreed. The court, upon motion, set aside the verdict, and rendered judgment for the defendant. Exceptions by plaintiff.</p> <p>If the defendant be liable, it is because, as an inn keeper, he was an insurer of the goods. His liability is equal to that of a common carrier.</p> <p>The grounds of liability, which exist in the case of the latter, exist equally in that of the former, and their liabilities should be alike. The relations, which they hold to the property, are essentially the same. The only difference is, that one has the care of property in transit, the other the care of property in deposit. Their duties are imposed upon each by law; each is a public servant; each is liable to indictment at common law, — the one, if he refuse to carry, — the other, if he refuse to keep and entertain; and each can take but a reasonable reward. Bac. Abr., Tit. Inns & Innkeepers, C. Jones v. Cotton, 1 Salk. 18. York v. Gi-indstone, Yelv. 385. The writs, in the case of an -innkeeper and a carrier, when they are sued, as such, for a loss, are the same. Morse v. Blue, 1 Ventr. 190. Calye’s Case, 8 Co. 32 a. Reg. Brev. 104, 105. The authorities fully sustain the theory of the writ. In none of them is the liability of the innkeeper treated as less than that of the carrier, and in many of them he is made liable for losses, irrespective of the care, which he may have exercised. White’s Case, 2 Dyer 158 5. Sanders v. Spencer, 3 Dy. 266 5. Calye’s Case, 8 Co. 32 a. Cross v. Andrews, Cro. El. 622. Mason v. Grafton, Hob. 245. Gilley v. Clark, Cro. Jac. 188. Beedle v. Morris, lb. 224. S. G, Yelv. 162 a. Warbrook v. Griffin, 2 Brown!. 255. 1 Plowd. 9, 129. Doct. & Stud. 237, c. 42. Richmond v. Smith, 8 B. & C. 9. Kent v. Shuckarcl, 2 B. & Ad. 803. Noy’s Max. 92, 93. 1 Com. Dig. 411, 415. 1 Bl. Com. 430. Bul. N. P. 73. Mason v. Thompson, 9 Pick. 280. Clutc v. Wiggins, 14 Johns. 175. Hollenbeche v. Fisk, 8 Wend. 547. Piper v. Manny, 21 Wend. 283. Grinnell v. Cook, 3 Hill 486. Wells v. Steam Nao. Co., 2 Corns. 209. 4 Kent (6th Ed.) 591, 595. The case of Dawson v. Chamney, 5 Ad. &. El., N. S., is not an opposing decision. The proximate cause of loss, in that case, was the act of God, — if that expression includes all causes of loss not attributable to human agency. Hence the innkeeper could be liable only in case that cause operated or was not prevented through his want of care. The case would involve only the question of his negligence. In his work on bailments, Story holds, that the innkeeper is liable to the highest degree of care, but is not an insurer. The authorities, which he cites, do not sustain him, and the rule, which he lays down, is impracticable.</p> <p>Under the circumstances stated in the case, it is well settled, both upon principle and authority, that the innkeeper is not liable for the loss, — certainly not by fire. Calye’s Case, 8 Co. 32 a. Jones on Bail. 107-111. Story on Bail. §§ 482, 483. Chit, on Cont. 476. Story on Cont. § 457. Burgess v. Clements, 4 M. & S. 306. 2 Kent (5th Ed.) 592. Daivson v. Chamney, 48 E. C. L.164. Although prima facie the innkeeper may be liable for a loss, no adjudged case can be found, where he has been held liable for a loss, which was proved, or admitted, to have happened without negligence, or fault, on the part of the innkeeper, or of one for whom he was responsible. The obiter dictum, of the judge in Mason v. Thompson, 9 Pick. 280, is not called for or sustained by the case. See, also, Richmond v. Smith, 15 E. C. L. 144.</p>

Trespass on the Case. It was alleged in the declaration, that the defendants were common carriers upon Lake Champlain, between Burlington and Plattsburg, N. Y., and received from the plaintiffs, at Burlington, a package of bank bills, to be carried to Plattsburgh and there delivered to Richard Yates, Esq., to whom it was directed, and that the package was never delivered as directed, but was lost through the negligence of the defendants.

Trover for nine boxes of cloth. Plea, the general issue, and trial by jury, September Term, 1849, — Bennett, J., presiding. The cloth in question was originally the property of B. & H. Boynton, who were manufacturers at Hinesburgh, Vermont.

Ejectment for land in that part of Williston, which was formerly a part of Burlington. Held: pro forma, that though it be true, that Thomas Youngs, mentioned in the charter, be the same Thomas Youngs, under whose will the plaintiff claims title, yet that the plaintiff had not proved a legal title to the land, the devise being void for uncertainty, — and rendered judgment for the defendant. Exceptions by plaintiff.

Petition to the chancellor of the third judicial circuit, setting forth, that the Vermont Central Rail Road Company had taken certain land in Burlington, under the provisions of their charter, to which there were conflicting claims, and caused the damages to be duly appraised by the commissioners, and had been ordered by the chancellor, upon petition preferred by them pursuant to the provisions of the statute of November 3, 1846, to deposite the amount of the award in the…

<p>Assumpsit upon an agreement in writing by the defendant to pay a demand of the plaintiffs against Swan & Bates and Levi Robinson, in consideration of forbearance. Plea, the general issue, and trial by jury, September Term, 1850, — Royce, Ch. J., presiding.</p> <p>On trial the plaintiffs gave in evidence the agreement declared upon, which was signed by the defendant, and was dated March 11, 1846, and was in these words :—</p> <p>“ Messrs. J. & J. G. Smith, Gent.: In consideration' that you “ will not sue the account of Henry E. Weed, of Troy, against “ Swan & Bates, and also that you will, not enforce the collection of “ the note payable to Hakes, Battershall & Weed against Swan & “ Bates and Levi Robinson, which said demands are in your hands “ for collection, I will see that the amount of the account of said “ Weed and the note against Swan & Bates and Levi Robinson “ shall be paid, — one half of the whole amount to be paid on or be- “ fore the first of September next, and the other half on or before “ the fifteenth day of November next.”</p> <p>The plaintiffs also offered in evidence their note against Swan & Bates and Levi Robinson. To this it was objected, that the defendant’s agreement did not sufficiently describe the note; but, it appearing that the Messrs. Smith held no other note against Swan & Bates and Robinson, the objection was overruled. It was farther objected, that the writing signed by the defendant did not stipulate for any certain time of forbearance, and that the defendant’s promise was therefore without consideration; but, it not appearing, that the plaintiffs had ever pursued their demand against Swan & Bates and Robinson, after the defendant executed the writing, this objection was overruled.</p> <p>The defendant called J. G. Smith as a witness, — whose testimony tended to show, that the firm of J. & J. G. Smith, of which firm he was a member, held the note above mentioned, as attorneys for the plaintiffs, for collection, when Swan and Bates failed in business at Georgia; that the witness went to Georgia to obtain security for the debt, if possible, and threatened to attach goods in the store; that Swan & Bates delivered to the defendants certain property and demands, to secure him for becoming holden for the note; that the witness then drew the writing declared upon, and showed it to the defendant, — who objected, that the writing, by its terms, would render him liable for the amount of the debts mentioned in it, whereas he was only willing to be holden for what he could realize from the property and demands so placed in his hands, and the witness thereupon told him, that he should not be holden to any greater extent upon the writing ; and that the witness regarded the transaction as being so far confidential between the defendant and himself, that he declined to prosecute the instrument, and thereupon the plaintiff placed it in the hands of other counsel and directed the present suit to be brought. It appeared, that if the writing should be enforced according to its terms, the defendant would be held liable for an amount considerably more than he had realized from the securities placed in his hands.</p> <p>The court decided, that this evidence did not tend to show, but that the writing was to have an effect and operation, as between the plaintiffs and defendant, and that the nature and extent of its operation must be determined from the writing itself, and not from the testimony of the witness. The jury were accordingly directed to return a verdict for the plaintiffs, for the amount of the note against Swan & Bates and Robinson. Exceptions by defendant.</p> <p>It is inferable from the facts stated, that the writing was never fully delivered, — that it was merely handed to J. G. Smith, to hold, not as a binding instrument, to be enforced against the defendant, but merely to be kept by him and thereby made the means, through the defendant’s agency, of obtaining some pay for the plaintiffs from Swan & Bates. If the writing were delivered for a special purpose, and the party undertake to use it for a different purpose, it is a fraud upon the defendant, which even a court of law will not permit. The obligee in an instrument may covenant, at the time of its delivery, not to sue it, and this covenant may be pleaded in bar of a suit. If so, the defendant, in this case, can claim the benefit of the plaintiffs’ agreement, to the extent that it was made, and defeat a recovery of any thing beyond what the defendant received.</p> <p>1. The description of the note, in the writing declared upon, is sufficient. 3 Cow. & H. Notes to Phil. Ev. 1358.</p> <p>2. Forbearance is a good consideration, though no certain time of forbearance be agreed upon. Chit, on Cont. 35, 37. Story on Cont. 76. Cro. Jac. 684. Cro. Car. 241. Cro. Eliz. 387. 2 Saund. PI, & Ev. 137. 1 lb. 211. 3 Burr. 1663. Biting v. Vanderlyn, 4 Johns. 237. King v. Upton, 4 Greenl. 387. Lonsdale v. Brown, 4 Wash. C. C. 148. Sidwell v. Evans, 1 Penn. 387. 5 Rawle 69. Watson v. Randall, 20 Wend. 201. Rix v. Adams, 9 Vt. 233. If the new surety, or promissor, agree to pay the debt by a specified time, the agreement to forbear should be construed to extend to the same length of time. If there be nothing in the agreement of the new surety to indicate the intent as to the time of forbearance, then it should be construed to mean a reasonable time,</p> <p>3. But in this case the language of the agreement is not “ to forbear,” but it is “ will not sue,” “ will not enforce the collection of the note.” It is equivalent to 'perpetual forbearance. 19 Johns. 129. 6 Wend. 471.</p> <p>4. The instrument, being a valid written memorandum of the contract, cannot be varied or contradicted by parol evidence.</p>

Trespass for injury to the plaintiff’s cow by means of a dog. The case was referred, under a rule from the county court; and it was stated in the rule of reference, that the referee was to be governed by the rules of law, — that by the rules of court all special pleas were to be filed within ninety days, or the defendant must be coufined to the general issue, without notice of special matters to be given in evidence, — and that there had been no plea filed in the cause.

<p>Ejectment for land in Franklin. Plea, the general issue, and trial by jury, September Term, 1849, — Poland, J., presiding.</p> <p>On trial, the plaintiffs gave in evidence the will of Joseph Randall, father of the plaintiff Betsey Grice and of the defendant, duly approved by the probate court, January 29, 1823, — by which the testator devised to his wife, Judith Randall, all his real and personal estate, subject to the payment of his debts, and constituted her his sole executrix, and providing, that, if any thing remained at the decease of his wife, it should be divided equally among their youngest children, agreeably to his executrix’ desire and according to law. The plaintiffs also proved, that Betsey Grice and the defendant were the legal heirs of Joseph Randall, and that Judith Randall, the widow of Joseph Randall, died in March, 1845. The plaintiffs also gave in evidence, from the records of the probate court, the copy of an application to that court by the plaintiffs, June 5, 1845, for a partition of the real estate of Joseph Randall, the decree of the probate court, June 5,1845, that the defendant and Betsey Grice were each entitled to one half of said estate, and the proceedings thereon, dividing the said estate equally between them, and assigning to the said Betsey the premises demanded in this suit, and the application for an appeal therefrom by the defendant, in which he claimed to own the whole of said estate, under the will of Joseph Randall, in severalty, and exclusively, and the proceedings thereon, affirming the decree of the probate court. The plaintiffs also proved, that the defendant was in possession of the demanded premises, at the time of the commencement of this suit.</p> <p>The defendant gave in evidence a deed from Judith Randall to himself, dated September 10,1838, conveying the real estate of which Joseph Randall died seized.</p> <p>The defendant insisted, — 1, That, by the will of Joseph Randall an absolute estate in fee, in the real estate devised, passed to Judith Randall; — 2. That if an estate in fee did not pass by the will, the will conferred upon said Judith an absolute power of disposition of the estate; — 3. That in any event the said Judith, by the terms of the will, had the right to dispose of the real estate, if it became necessary to do so, in order to supply herself with the necessary means of support; — and for this purpose the defendant offered to prove, that the value of all the property, of which Joseph Randall died seized, did not exceed $600,00, that said property, in the condition in which it was then and at the time of the deed from Judith Randall to the defendant, was altogether inadequate to furnish her with a comfortable living, that in order to furnish herself with a comfortable support it became necessary to sell the real estate, that she did sell and convey said real estate to the defendant, by the deed above mentioned, in order to furnish herself with the necessary means of support, and that the defendant, subsequent to said deed, had erected expensive buildings upon the estate, at his own expense, and continued to support the said Judith, after she had exhausted all the proceeds of said estate, and all her means, until the time of her death.</p> <p>To the admission of this evidence the plaintiffs objected; and the court excluded the evidence, and directed a verdict for the plaintiffs, for the premises demanded. Exceptions by defendant.</p> <p>I. The probate court can only order partition of real estate in cases, where the estate is in the hands of two or more heirs by assignment of the probate court, and held by them under such assignment at the time of application for partition. In this case the estate had never been assigned by the probate court to Randall and Betsey Grice, and hence no foundation was laid for partition by decree of the probate court. Rev. St. 294, § 2-4.</p> <p>2. Partition could only be ordered of estate held by two or more persons as joint tenants, tenants in common, or coparceners, at the time application for partition is made. Rev. St. 231, § 1. If the right to partition be not perfect at the time of application, the probate court can by no action, or decree, create a right. The premises in question passed, by operation of the testator’s will, absolutely to Judith Randall, his wife; of course he left nothing, to which Betsey Grice was by law entitled, or to which she had any right as heir. If so, it was not in the power of the probate court, by any decree, to create or vest in her any legal right.</p> <p>The decision of the probate court, as set forth in the records, is conclusive as to the matters in dispute between these parties. That court had original and exclusive jurisdiction of the subject matter, subject to the right of appeal. The parties were regularly before the court, and the matter was there decided. The defendant appealed, claiming to own the whole of the premises, under the will of Joseph Randall, and the decree of the probate court was affirmed; and the court then proceeded to divide the estate. The question as to the legal effect of the will of Joseph Randall and of the rights of the parties to the land having already been settled by another and competent tribunal, its decision must be deemed final and conclusive, and the defendant is precluded from questioning the validity of the judgment. Smith’s Lead. Cas. 493. Outramv. Morewood,5 T. R. 121. Hall et al. v. Dana, 2 Aik. 384. Robinson v. Swift, 3 Vt. 283. Wood v. Kinsman, 5 Vt. 598. Gray v. Pingry, 17 Vt. 419. Perkins v. Walker, 19 Vt. 144.</p>

<p>Petition for a new trial. The facts are sufficiently stated in the opinion of the court, which was delivered by</p>

[In Chancery.] Appeal from the court- of chancery. It was alleged in the bill, that Jonathan R. Danforth, the husband of the oratrix, died, February 5, 1847, seized of certain land in St. Albans, upon which there was a tavern house, and of a farm in Fairfax and Georgia, which real estate was subject to a mortgage to N. W. Kingman and Hiram B. Sowles, to secure about the sum of $2700,00, and to a mortgage to Hiram B. Sowles, William O. Gadcomb, Victor Atwood and the defendant…

Indictment for suffering a highway to be out of repair. Trial by jury, February Term, 1849, — Royce, Ch. J., presiding.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows. The plaintiffs presented an account against the defendant, the debit side of which was allowed, as charged, at $170,97. The defendant was allowed the amount of credits upon the plaintiffs’ account, which, with an allowance of $2,00 for error, amounted to $99,74.

Indebitatus Assumpsit for money had and received. Plea, the general issue, and trial by the court, June Term, 1850, — Bennett, J., presiding. On trial, it appeared, that on the seventh day of November, 1845, the plaintiff purchased of the defendant a farm, and gave his notes for the purchase money, payable annually for a series of years.

Assumpsit upon a promissory note for $23,50, dated September 30, 1841, payable to Mehitable M. Booth, or bearer, in one year from date, with interest. Pleas, the general issue and the statute of limitations, and trial by jury, December Term, 1850, — Pierpoint, J., presiding.

Trespass for two horses, a wagon and harness. Plea, the general issue, and trial by jury, June Term, 1849, — Bennett, J., presiding. The plaintiff proved, that the property in question belonged to one-Perkins, who resided at Schroon, in the state of New York, and gave in evidence a mortgage of the property executed to the plaintiff by Perkins, at Scroon, April 27, 1848, and recorded in the proper office in the state of New York.

Ejectment for land in Addison. The plaintiff claimed title by-virtue of a mortgage deed, executed by the defendant Imus to Samuel B. Wellington, dated January 20, 1837, and by him assigned to the plaintiff’s testator, October 26, 1842. Judgment having been rendered for the plaintiff, the defendants filed a notice to be allowed to redeem, according to the statute.

Indictment, in four counts, for a violation of the license law of 1846.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows. The plaintiff’s account was for labor performed for the defendant, under a contract made with one Ecker, the defendant’s agent. The plaintiff represented to Ecker, that he had been at work for one Chandler, and that Chandler had paid him $1,75 per day; and Ecker said to the plaintiff, that the defendant expected to pay for labor what Chandler paid.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts as follows. The plaintiffs’ account was for brandy, gin and rum, sold to the defendants in September and November, 1848. The plaintiffs were grocers, residing in Troy in the state of New York, and employed one Andrus to effect sales for them, and gave him a general authority for that purpose.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows. In August, 1843, which was more than six years before the commencement of this suit, the plaintiff sold to the defendant a note against one Sargeant, upon which there was then due about $36,00, for $18,00 and the charge for this constituted the only item of the account presented by the plaintiff before the auditor.

Indebitatus assumpsit for goods, wares and merchandize sold and delivered, Plea, the general issue, and trial by the court, April Term, 1850, — Hall, J., presiding. The testator, John Shumway, died in 1839, leaving a will, of which one Warren Shumway was executor.

Debt upon a bond, conditioned, in the form required by law, that the defendant Slason should faithfully perform his duties, as guardian of one Edwin A. Reed, an infant, — assigning, as breaches, a neglect to make and return to the probate court an inventory of the property of the ward, which came.to the possession of the guardian, and a neglect to settle his account in the probate court; — the action was prosecuted by the ward, after the determination, of the guardianship.

Trover for eighty nine fleeces of wool. Plea, the general issue, and trial by jury, April Term, 1850, — Hall, J., presiding.

Trespass on the Case. The plaintiff alleged, in the first count in his declaration, that he was an inn-keeper, and was requested by the defendant to board him and his family; that the plaintiff, being ignorant of the circumstances of the defendant, applied to him for information in reference thereto, and the defendant falsely and fraudulently represented to the plaintiff, that he was possessed and the owner of a bank bill for $100,00, and of another bank bill for $20,00, and…

Ejectment for land in Clarendon. The suit was referred, under a rule from the county court, and the referee reported the facts substantially as follows. Held: in effect, that the point in the centre of the stream, where it is nearest the butternut tree, is the terminating boundary between the parties. This point, however, is liable to constant change, and under this rule the rights of the parties can never be settled.

Audita Querela. The complainant alleged, in his declaration, that he was summoned by the town of Rutland to appear before a justice of the peace, to show cause why an extent should not issue against him for arrears of taxes upon the rate bills for four years, committed to him as collector of taxes for the town of Rutland; that the complainant appeared, and a trial was had, and the justice adjudged the complainant delinquent in the collection and payment of taxes, assessed…

, and his wife and four children, be removed, as paupers, from the town of Poultney to the town of Glover. Plea, that the town of Glover was not the place of the legal settlement of the paupers, and trial by the court, November Adjourned Term, 1849, — Hall, J,, presiding.

Trustee Process. The facts were disclosed by the trustee, and were found by the court, to be substantially as follows. The trustee, at the time of the service of the trustee process upon him, being constable of Mountholly, held for collection an execution in favor of the principal debtor against Edward Barrett for $19,85, dated September 29, 1849, and returnable in sixty days from date, upon which he had collected nothing, and which had not been returned by him.

[In Chancery.] Appeal from the court of chancery. The orator alleged, in the bill, that Alexander Miller died in March, 1844, leaving a will, in which the orator was named as executor, and that the will was duly proved and allowed in the probate court, and letters testamentary were granted, and commissioners were appointed, and the list of claims returned and allowed, and that the orator believed, that the property of the estate would be sufficient, after satisfying all just…

Trustee Process. The writ was served upon the’ trustee April' 17, 1849. The trustee disclosed, that he was indebted to the principal debtor, at the time of the service of the trustee process,, in the sum of $4,69.

Trover, for a horse. Plea/the general issue, and trial by the jury, September Term, 1850, — Kellogg, J., presiding. The plaintiffs were livery stable keepers at Bellows Falls, and or the thirteenth of July, 1349, the defendant, then an infant of the age of twenty years, hired of them a horse to drive from Bellows Falls to Brattleboro, a distance of twenty three miles, and to return ■the same day..

Petition for a writ of certiorari to the county court, to bring up' the record of their proceedings upon a petition for the appointment of commissioners to assess damages occasioned to the petitioners by reason of the laying of a highway.

£In Chancery.] Appeal from the court of chancery. The facts are sufficiently stated in the opinion delivered by the court. The court of chancery dismissed the bill; from which decree the orator appealed.

Book Account. The action was commenced before a justice of the peace, and came to the county court by appeal. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows.

Assumpsit upon a promissory note, dated October 5, 1846, and made payable to the plaintiff, or order, on demand. Pleas, the general issue, and infancy. Replication to the plea of infancy, that the note was given for necessaries; and issue was joined. Trial by the court, September Adjourned Term, 3849, — Kellogg, J., presiding.

Trespass on the Case for want of care by the defendants’ servant in the management of their locomotive engine, whereby the plaintiff’s mare and colt were killed. Plea, the general issue, and trial by jury, December Term, 1850, — Collamer, J., presiding.

Trespass on the Case for diverting water from the plaintiffs’ woolen factory on Black River, in Ludlow, from April 14, 1845, to March 6, 1847. Plea, the general issue, and trial by jury, May Term, 1849, — Kellogg, J., presiding.

Trover for a harness. Plea, the general issue, with notice that the defendant would justify the taking as collector of a school district tax, and trial by jury, November Term, 1849, — Kellogg, J., presiding. On trial, the plaintiff having proved the taking of the property by the defendant, and its value, the defendant offered in evidence the record of a meeting of school district No. 17 in Chester, held September 16, 1847.

<p>Trespass for taking a horse. The defendants pleaded severally the general issue, with notice, that they should justify, — the defendant Newman as collector, and the defendant Gates as prudential committee, — under a vote of school district No. 6 in Windsor, passed January 25, 1849, imposing a tax for the purpose of building a school house. Trial by the court, May Term, 1850, — Hall, J., presiding.</p> <p>On trial the facts were found to be as follows. Previous to January 1, 1849, there had existed in the town of Windsor, for a number of years, a school district, numbered six, duly constituted and organized. On the first day of January, 1849, the statute of 1848, dividing the town of Windsor, came in force. By that statute the town of Windsor was “ divided and incorporated into two distinct towns, by a line drawn from the northerly to the southerly line of said townand it was provided, that that part lying easterly of said line should be called Windsor, and the part lying westerly should be called West Windsor, and that each of the new towns should become organized, and their first meetings, respectively, should be called and holden, in the manner prescribed by the Revised St atutes, chapter thirteen, section eight. The line, which was created by that statute the dividing line between the two new towns, passed through said district No. 6, cutting off from its westerly side and leaving in the new town of West Windsor a strip of territory of the width of one half of a lot. On the part óf the district, thus included in West Windsor, there were, on the first day of January, 1849, and at the several times in 1849 hereafter mentioned, two families resident, viz., that of Earl Cushman and that of David Sanderson. The part of the district left, by the division, in the new town of Windsor was much the largest part, being about twenty nine thirtieths of the whole, and in it the school house was situated.' The inhabitants of the east part of the district, thus included in the new town of Windsor, never became organized as a school district, subsequent to January ], 1849, and there was never any vote of the new town of Windsor, after that date, nor of the old town previous to that date, constituting such territory a district.</p> <p>On the sixteenth day of January, 1849, the person, who had been elected clerk of said district No. 6 at the previous annual meeting of the district, posted a warning for a meeting of the legal voters in “ District No. 6 in Windsor,” to be held on the twenty fifth day of January, 1849. At the time and place named in the warning the inhabitants of that part of the district included in the new town of Windsor met and voted to raise a tax of sixty two and a half cents on each dollar of the grand list of 1848, for the purpose of building a school house. At a subsequent meeting of the inhabitants of the same east part of the district, held March 7, 1849, the defendant Gates was elected prudential committee and the defendant Newman collector.</p> <p>In March, 1849, the selectmen of Windsor and West Windsor met, and ascertained and established the dividing line between the two towns, and ascertained what real estate, belonging to the inhabitants of the west town, lay within the limits of the east town, and minuted the amounts, so found upon the grand list of 1848, — the grand list also showing the school district, in which such real estate was located.</p> <p>On the first day of May, 1849, the defendant Gates made a rate bill in accordance with the vote of January 25, 1849, above mentioned ; and in making it, he omitted to insert the names or property of Earl Cushman and David Sanderson, who resided in the west part of the district, as above stated. •</p> <p>There was also testimony given in the county court, which the plaintiff claimed tended to show that the rate bill was illegal by reason of other omissions, and also that the tax was not legally demanded of the plaintiff, before his property was distrained, and some question was made in reference to the sufficiency of the proof that the property was duly advertised ; but as these points were not decided by the supreme court, it is unnecessary to detail the evidence. In all respects, excepting those above stated, the proceedings were regular.</p> <p>Upon these facts the county court rendered judgment for the defendants. Exceptions by plaintiff.</p> <p>That part of the old school district No. 6, which fell, by the division of the town, into the new town of Windsor, was never, in terms, constituted a school district by vote of any town, and was never in fact organized as such. It follows, as a necessary consequence, that its inhabitants had no authority to assess taxes, unless the court are to imply an intent in the legislature to confer upon them that power by the statute of division. Johnson v. Dole, 4 N. H. 478. The former town of Windsor ceased to have corporate powers after the statute of 1848, [Acts of 1848, p. 8,] came in force. The case, therefore, is not within the rule laid down in Hartford Bridge Co. v. E. Hartford, 16 Conn. 172. Windham v. Portland, 4 Mass. 389, and Hampshire v. Franklin, 16 Mass. 86.</p> <p>But in this case the school district was in fact divided. It was not taking part and annexing it to another district, leaving the old district to enjoy its corporate powers, but it was the establishment, at the very least, of two new districts. Richards v. Daggett, 4 -Mass. 534. Neither of these fragments can claim, more than the other, to be the original district No, 6, or to retain the old organization. If the old district No. 6 still remains entire, with its old organization, what is the nature of its existence ? It is within two distinct jurisdictions. Is it a union district, with the powers incident thereto 1 Then it follows, that neither town has control over any part of its territory, without the intervention of a board of two justices. If not this, then it must be a district divided into two parts. What are the rights and incidents of each of these parts 1 Is the larger part a district, duly organized and able to assess taxes ? Then it follows, that the smaller part has the same powers and incidents, — which is absurd. But if it be not a union district, and neither fragment be of itself a district, it follows, that the tax in question was voted by a body without authority for that purpose. In either event the old organization is lost, and either fragment, to possess the power of a corporation, must be re-organized, — as in the case where a union district is separated into its component parts. Rev. St. 115, § 23. The pretended district, which voted this tax, having never been organized, the tax is illegal, and both the collector and the prudential committee are liable. Drew v. Davis, 10 Yt. 506. Rev. St. 112, §§4-7.</p> <p>The defendants are precluded from asserting, that the old district No. 6 still retains its entiety and organization; for they justify, in their special notice, under votes of district No. 6 in Windsor, and their evidence was given with a view to that justification. The only question, then, is, whether that part of the old district No. 6, which was left in the east town by the division, became, by the act* of division, a district by itself, duly organized, and competent to raise taxes without farther action.</p> <p>A school district has the powers of a corporation, for all the purposes of its organization, Rev. St. c. 18, § 7. The inhabitants of the town may alter the boundaries of a district, and even merge its existence in others; but, so long as it exists and has legally defined limits, it is, as a public corporation, independent. The statute contemplates the formation of school districts within the town, as is evident by the fact, that the power to create these corporations is given only to the town. Rev. St. c. 18, § 2. By special provision,— Rev. St. c. 18, § 5, — a school district may be made to cover territory in two towns, by the action of the two. Inhabitants may be “ set ” to a district in an adjoining town. Rev. St. c. 18. § 6. These are all the exceptions to the rule. The present case is therefore an anomalous one. The district, No. 6, has never been dissolved, nor have its dimensions, as maintained for many years preceding the statute dividing the town of Windsor, been altered, in any mode prescribed by the general statutes. But that statute established a line of division, which cut off, territorially, a small portion of the west end of the district; and the question is, what effect, if any, had the statute upon the district ? The defendants insist, that the integrity of the district was not affected by the division of the town; it retained the existence, limits and corporate independence, which it had before. ’Waldron v. Lee, 5 Pick. 323. Richards v. Daggett, 4 Mass. 534.</p>

This was an action upon the statute of October 29, 1840, which provided a mode of assessing the damages, which should be sustained by the owners of land upon Connecticut River by reason of lumber, put into the river, being carried by the water and lodged upon the land, and not removed by the owners previous to the first day of May in each year, and which provided, that all such lumber, not removed by the first day of November in each year, should become the property of the…

Ejectment for land in Plymouth. Plea, the general issue, and trial by jury, December Term, 1850, — Collamee, J., presiding. The plaintiff claimed title to the land, described in his declaration, as part of the right of John Grimes, who was one of the original proprietors under the charter of Plymouth, then called Saltash, granted by Benning Wentworth, governor of the province of New Hampshire.

The order was made October 16, 1849, and directed, that the paupers remove to Mendon on or before the nineteenth of October, 1849, and that, on failure to comply with the order, the paupers should be removed, according to the statute.

Trial by the court, February Adjourned Term, 1851, — Collamer, J., presiding. At a probate court held November 13, 1848, Gardner Winslow, John Chedel and Ora Paul were appointed commissioners to receive, examine and adjust all claims against the estate of Seth Hodges.

[In Chancery.] Appeal from the court of chancery. The orator alleged in his bill, that Frederic Pettes. died October 25, 1838, and William B. Pettes was appointed his administrator, and entered upon the duties of his appointment, but afterwards, May 14,1839, resigned his trust, and the defendant Jabez Sargeant was appointed administrator de bonis non; that Sargeant returned an inventory of the estate, amounting to $14,256,97, and the list of claims against the estate…

Petition for a writ of mandamus. The petitioner, Augustus P. ■Hunton, represented, that the legislature of this state, by act approved November 13, 1850, incorporated the White River Bank, and therein provided, that the place for the location of the bank should be designated by a committee, who were named, and that books for receiving subscriptions to the capital stock of the bank should be opened, at the place designated by said committee, under the direction of Chester…

Indebitatus Assumpsit for work and labor, and for money had and received. Plea, the general issue, and trial by the court, January Term, 1851, — Collamer, J., presiding. In 1843 the plaintiff performed labor for the defendant, for which the defendant was to pay him in boots and shoes, on reasonable demand.

Assumpsit upon a promissory note. The officers return upon the writ was in these words; — “ Then by virtue of this writ, to me “ directed, I attached one horse and harness as the goods and “ chattels of the within named defendant, and delivered him a copy “ of this attachment and a list of the articles so attached by me.” The defendant pleaded in abatement, that no true and attested copy of the writ, with the officer’s return thereon indorsed, together with a list of the…

Assumpsit upon a promissory note for $161,94, dated April 6, 1847, executed by the defendants, by the name of their firm of Cutting, Hindman On trial, the plaintiff having given in evidence the note declared upon, the defendants claimed to have paid the note, and proved, that some time previous to October 11,1847, William Frazier, the payee of the note, was indebted to the Bank of Newbury upon a promissory note for $259,00, which was also signed by the defendant Hindman, as…

Assumpsit. The plaintiff alleged in his declaration, that, in consideration that he would pay to the defendants $50,00, the defendants promised that they would execute and deliver to him a quitclaim deed of a certain specified part of lot No. 79 in Braintree, and that, if the plaintiff should not acquire and receive a good and valid title to the land by virtue of said deed, they would repay to him the said sum of $50,00 on demand, and that the plaintiff paid the money and…

Ejectment for land in Chelsea. The land was described in the declaration, as follows; — “ Beginning at a point in the centre of the branch, which runs near the house of Sereno Allen, where the east line of the old highway, laid out from Chelsea to Danville, intersects the centre of said branch in the westerly line of said Allen’s land thence up the centre of said branch, on the west line- of said Allen’s lands, so far that a line, drawn at right angles with the highway that…

Trustee Process. The suit was commenced before a justice of the peace, and came to the county court upon appeal taken by the claimants, who were admitted to appear before the justice and assert their title to the property in the hands of the trustee. In the county court the plaintiff moved to dismiss the suit, assigning, as cause, that the appeal was allowed to the claimants contrary to law. The county court, January Term, 1851, — Collamer, J., presiding, —dismissed the suit.

Trespass on the Case. In the first count in the declaration the plaintiff alleged, that he sued out a writ in his favor against Joseph Fish and Thomas… Held: by Cahill’s creditors, as his property. It appeared, that the suit in favor of the plaintiff against Fisk and Cahill was entered in court at the May Term, 1847, and judgment rendered for the plaintiff, and the defendants in that suit entered a review, and a recognizance, in the sum of $10,00, was entered for the review.

Trustee Process. The trustee disclosed, that he was indebted to the principal defendant, at the time of the service of the trustee process, in .the sum of $94,17; and it also appeared, from his disclosure and other evidence in the case, that one Burt was indebted to Ayer, the principal defendant, in the sum of $500,00, and the trustee being indebted to Burt, and having some property of Burt in his possession, it was agreed between them, after the service of the trustee…

Indictment for forgery. It was alleged, that the respondent forged a certain order, drawn on one Iiarvey C. Babcock, for the sum of $100,00, purporting to have been signed by one George-Rogers, which was set forth in the indictment, and was in these words: — “ Mr. Babcock: Can you let me have one hundred dollars, “ on interest, one month ? I have got considerable money to make, “ out next week. If you can’t let me have so much, let me have “ what you can.

Book Account. The suit was commenced June 7, 1850. 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 was for six months’ labor for the defendant, at $8,00 per month, and he had credited $7,50, as part payment.

<p> Poor. Construction of statutes. Relief of transient poor. </p> <p>An order of removal of a pauper, unappealed from, is conclusive evidence of the settlement of the pauper.</p> <p>In construing statutes in reference to the removal and relief of paupers, the same rule, that they are to have effect according to their obvious import, applies, as in the construction of other statutes.</p> <p>It is not necessary, under chap. 16, sec. 12 of the Revised Statutes, that a tran* sient person should be, literally, suddenly taken sick, or lame, and be confined at some house, in order to enable the town to recover the expenses of his support from the town in which he has his legal settlement. This provision of the statute applies to all transient persons, who are in need of present relief; and all persons, not having come to reside in any place, are transient; and it is of no importance, how the overseer of the poor becomes aware of the situation of such persons.</p>

Assumpsit upon a promissory note for $100,00, dated June 10, 1846, signed by Lorenzo P. Crosby as principal, and by the defendant as surety, and payable to the plaintiff in one year from date, with interest. Plea, the general issue, and trial by jury, December Term, 1849, — Poland, J., presiding.

<p>Audita Querela. The facts are sufficiently stated in the opinion of the court, which was delivered by</p>

Tins was a suit upon a recognizance entered into by the defendant in an action in favor of one Sisco against the plaintiff, Parkhurst. The defendant pleaded two pleas in bar.

Trover for four horses. Plea, the general issue, and trial by jury, June Term, 1851, — Bennett, J., presiding.

Trustee Process. Judgment was rendered against the principal debtor by default. The trustee disclosed, in substance, as follows.

Information for suffering a bowling alley to be used for play, contrary to the statute of November 3, 1847, after its use had been forbid by the selectmen of the town in which it was situated. The facts are sufficiently stated in the opinion of the court, which was delivered by

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

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. The plaintiff contracted to labor for the defendant, in his family, six months, at one dollar per week.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows. The plaintiffs exhibited an account against- the defendant, only one item of which was disputed, which was for a horse, charged by the plaintiffs at $60,00, and which was allowed by the auditor at $52,50. The whole account was allowed by the auditor at $323,16.

Assumpsit upon a promissory note, and for goods sold and delivered. Plea, the general issue, and trial by jury, June Term, 1851, ■ — Poland, J., presiding. Qn trial the plaintiffs gave in evidence a note for $279,75, dated December 11, 1847, payable to the plaintiffs in six months, purporting to be signed by B. F. Denison as attorney for the defendant, and also a power of attorney, executed by the defendant to B. F. Denison, dated November 16, 1847.

Trover for a cow. Plea the general issue, and trial by jury, June Term, 1851, — Poland, J., presiding. .About the first of June, 1848, the defendant sold to the plaintiff the cow in question for $20,00, one half of which was to be paid in July, and the residue in the ensuing autumn; but it was agreed between them, that the cow should remain the property of the defendant, until the plaintiff paid the price.

<p>Reference. Decision of questions of law. _</p> <p>Questions of law, decided by a referee, cannot be revised, if it do not appear from his report, that he intended to decide according to the rules of law, and he was not required by the rule of reference to do so.</p>

Audita querela. It was alleged in the declaration, that the defendant brought an action for slander, against the complainant, before a justice of the peace, demanding damages seven dollars, and that a trial was had, upon the plea of not guilty by the complainant, and a verdict rendered against the complainant, and that the justice had thereupon rendered judgment against the complainant for the amount of the verdict; and the complainant prayed, that this judgment might be…

<p>[In Chancery.]</p> <p>Appeal from the court of chancery. It was alleged in the bill, that in January, 1846, the orator and defendant entered into partnership for the purpose of cutting and conveying to market pine timber, and that, for the purpose of carrying on the business, they purchased of one Fairchild the pine timber standing upon two lots of land in Maidstone, and agreed to pay therefor $275,00, — which was afterwards paid from the partnership funds; that in January and February, 1846, the parties cut about one hundred and twenty one thousand feet of pine timber, which they sold for $687,18, and that the avails, after deducting the expenses, were divided between them, except that the defendant retained $14,00 more than his share; that on the twenty first of December, 1846, the defendant procured from Fairchild a conveyance of the land, upon which the timber stood, and had since claimed to hold the land and all the timber standing thereon; that a large quantity of pine timber yet remained standing upon the land, and in January or February, 1847, the defendant drew from there forty one thousand feet of pine timber, which he sold for $246, and appropriated the whole to his own use ; and'that one half of that sum would be a fair compensation for the expenses, and that the residue should be divided between the orator and the defendant. And the orator prayed, that an account might be taken of the partnership dealings, and of the timber cut and sold by the defendant in .the winter of 1847, and that the defendant might be decreed to pay to him such sum as should be found due to him upon such accounting, and that the defendant might be decreed to hold an undivided half of the land in trust for the orator, and that the timber thereon might be divided between them, and for a dissolution of the co-partnership.</p> <p>The defendant answered, and alleged that in December, 1845, one Dewey recovered judgments against him upon liabilities assumed by the defendant for the orator, and thereupon, for the purpose of enabling him to obtain security for those liabilities, the partnership alleged in the bill was formed, to continue only during the winter of 1846; that in January, 1846, he entered into contract in writing with Fairchild, in his own name, but for the benefit of the partnership, by which the defendant agreed to cut and draw to Connecticut River all the pine timber standing upon the lots named in the bill, at a price specified, reserving a right to purchase the timber, if he chose, and make payment by a day named, — the timber to be all taken from the land by the first day of April, 1846; that by the terms of the partnership the timber was to be under the control of the defendant to sell and receive the avails, and the defendant was to have a lien upon the orator’s share of the avails as security for the debt to Dewey; that the parties never purchased of Fairchild the timber upon the lots named in the bill, except as above stated; that the defendant gave notice to Fairchild of his election, pursuant to the terms of the contract between them, to take the timber and, pay therefor the sum specified; that the parties commenced cutting the timber, and while they were so engaged, a dispute arose, in reference to the true boundaries of the lots, between Fairchild and one Merrill, who was the owner of adjoining land, and thereupon it was agreed, that no timber should be cut upon the disputed part, until the true line should be ascertained, and then, if it was found to belong to Fairchild, the timber upon that part might be cut by the orator and defendant in the winter of 1847; that in the course of the winter of 1846 the parties cut and sold timber from these lots to the amount of $689,10, from the avails of which the amount agreed, by the contract above mentioned, to be paid to Fairchild, was paid, and the residue, after paying the expenses of the business, was appropriated, by the consent of the orator, to the payment of the indebtedness to Dewey, and a settlement was then had between the parties; and that the defendant did not retain in his hands $14,00, or any other sum, belonging to the orator; — and the defendant denied, that any part of the timber remaining upon the land after the first of April, 1846, was the property of the orator and defendant, except only what remained upon the disputed tract, above mentioned, which it was ascertained belonged to the lots named in the bill, and admitted, that in December, 1846, he procured from Fair-child a deed of the land for his individual use and benefit, and th,at, under that deed, he claimed all the timber upon said lots, except that upon the disputed tract, as his own, and that, in the winter of 1847, he drew from those parts of the lots, not included in the disputed tract above mentioned, timber which he sold for $245,37, and had appropriated the avails to his own use and refused to account therefor to the orator.</p> <p>The answer was traversed, and testimony was taken, the result of which is stated in the opinion delivered in the court.</p> <p>The court of chancery decreed, that the defendant account to the plaintiff for one half of the net proceeds of the timber cut by the defendant upon the land subsequent to the settlement between the parties, and that the plaintiff recover his costs. The master, to whom the matter was referred, reported, that the defendant had received from the avails of such timber, besides expenses, $70,12, upon which interest should be computed from April 1,1847. The defendant appealed from the decree.</p>

<p> Secondary evidence- of lost paper. Effect of recital. Judgment against surety evidence in suit for contribution. Contribution between sureties. Joinder of plaintiffs. Several liability of defendants. Release by surety to principal discharges cosureties. When court of chancery will not interfere. Practice. </p> <p>When a paper is lost, it is necessary, in order to lay the foundation for introducing secondary evidence of its contents, that reasonable search should be made in the place, where the paper is last known to have been, and if not found there, then inquiry must be made of the persons last known to have its custody.</p> <p>Where, in a bond executed to secure the faithful performance, by the principal, of certain duties imposed upon him by an indenture to which he was party, the terms of the indenture are recited, this recital is conclusive upon the signers of the bond.</p> <p>The judgment recovered in a suit upon such bond, against a part, only, of the sureties, which has been satisfied by them, is competent evidence, in a subsequent suit brought by them against their co-sureties, for contribution, to show the amount of the payment made by the plaintiffs and the circumstances under which it was made, but not for the purpose of .proving the liability.</p> <p>The general rule is, that in a collateral undertaking by way of guaranty, where a suit is necessary to fix the liability of the guarantor, the first judgment is prima facie evidence of the default. But where the guarantor is liable without suit against the principal, the judgment against him is regarded as strictly matter inter alios. Redfield, J.</p> <p>A surety may compel contribution from his co-surety for the costs and expenses of defending a suit, if the defence were made under such circumstances, as to be regarded as prudent.</p> <p>When sureties, against whom a judgment has been recovered, pay such judgment jointly, they may join in bringing a bill in equity to compel the heirs of a deceased co-surety to make contribution; and a decree may be made, upon such bill, against the defendants severally, for the amount, for which each is liable.</p> <p>If a surety, against whon a suit is pending upon the bond signed by him, execute and deliver a general release to the principal of all liability for any sums, for which the surety is liable upon such bond, or for which he may be held liable in such suit, this will operate as a release of all collateral obligations resting upon his co-sureties to contribute their proportion of the sum recovered against him in that suit and subsequently paid by him. The surety, by releasing the principal, becomes himself principal, as to any liability thus assumed by himself. By contracting not to sue the principal, he impliedly binds himself not to do that indirectly, which he had assumed not to do directly.</p> <p>And this result will not be affected, even in a court of equity, by the fact, that such release to the principal was executed upon nominal consideration, and for the mere purpose of enabling the surety to avail himself of the testimony of the principal in the suit then pending, and that this was the only means, by which he could reduce the recovery in that suit to a sum less than the penalty of the bond, and that the testimony of.the principal did have the effect thus to reduce the amount ultimately recovered by the plaintiffs in that suit.</p> <p>And a court of equity will not interfere to restrain this effect of the release, even if it be shown, that the party executing the release mistook its operation in respect to his co-sureties, or did not have that in mind; for any release, to remove the interest of the principal in the suit pending, must operate not only upon the direct claim against the principal, hut upon all collateral remedies for the same thing; and the party executing the release, if he understood the subject matter of the contract, was bound to know, that it must cut off all contribution from co-sureties, to the extent of the release, in order to produce the immediate end in view.</p> <p>Nor will the result be affected by the consideration, that the party, either through mistake of the law, or from over caution and to make the matter secure, executed a general release “ from all liability,” when a more restricted release might have answered his purpose equally well. A court of equity will not interfere to restore the party to the rights, which he has thus unnecessarily released.</p> <p>And as matter of form, if any such interference of the court be desired, upon the coming in of the answer setting up such defence in favor of the co-sureties the orator should file a supplemental bill, stating the grounds upon which he desires to contest the release, so as to bring the matter properly in issue before the court.</p>

Trespass guare clausum fregit. The action came, upon exceptions, from Windham county court. Plea, the general issue, and trial by the court, September Term, 1846, — B. Ormsbee, Assistant Judge of Windham county court, presiding. The trial was had upon a case stated by the parties substantially as follows.

<p> Merger of contract. Right of recovery for performance of contract after merger. </p> <p>The defendants, a rail road corporation, agreed with the plaintiff, that they would pay him four shillings per rod for constructing the fence upon each side of their rail road through the land of the plaintiff, according to a specified plan. Subsequently, the plaintiff having appealed from the decision of the commissioners assessing the land damages for the crossing of his land by the rail road, commissioners were appointed by the county court, who, after appraising the damages to the land, reported, that an additional sum of one dollar per rod should be allowed to the plaintiff, for the purpose of building and keeping in repair such suitable fences on the line of the road over his land, as he might elect, unless such fences were to be built and maintained by the defendants. Upon this report being returned, the plaintiff took judgment for the full amount of the appraisal, including the allowance for fences, and the amount of the judgment was paid by the defendants. Held, that the judgment upon the report must be regarded as a merger of the previous contract made by the parties for the construction of the fence.</p> <p>And the plaintiff having proceeded, subsequent to the rendition of the judgment, and constructed the fence according to the contract, it was held, that he was not entitled to recover of the defendants the difference between the contract price and the actual value of the fence to him for farming purposes, allhough he proved, that the fence so constructed by him under the contract was not such as he should have built for himself upon the line of the road through his farm, for his farming purposes, but that he would have built different fence, which would have been no more expensive, and would have been more durable and worth at least thirty cents per rod more than the fence constructed by him .under the contract.</p>

<p> Motion to quash for extrinsic matter. Authorization of officer to serve county court writ. Form, of authorization. Case explained. Several pleas in abatement. Demurrer for duplicity. </p> <p>A motion to quash can only be sustained in cases, where the matter of abatement is apparent upon the record; if it do not appear by the record, but is extrinsic, it must be pleaded in issuable form, that the opposite party may have an opportunity to traverse it.</p> <p>If the motion be founded upon matter, which does not appear of record, and which it is not necessary should so appear, in order to render the process valid, it will be held ill upon demurrer.-</p> <p>It is not necessary to the validity of the authorization of an indifferent person- to serve a writ returnable to the county court, that it should be stated in the authorization, that a known public officer could not seasonably be had, to serve the writ. Nothing more, certainly, is necessary to be inserted in the writ, than the name of the person authorized, and that he is an indifferent person.</p> <p>An authorization, inserted in the direction of such writ in these words, — “ To Alonzo B. Nutt, an indifferent person, to serve and return,” — is sufficient</p> <p>The case of Holbear v. Hancock. 19 Vt. 388, commented upon and explained.</p> <p>The statute authorizing several pleas does not extend to pleas in abatement.</p> <p>If several pleas in abatement be pleaded at the same time to the same process, each distinct in itself, and each alone, if well pleaded, sufficient to answer the writ, they will be held ill for duplicity, — the same as they would be, if the several grounds of abatement were embraced in one plea.</p> <p>And advantage may be taken of such defect in the pleas upon demurrer; — it is not necessary, that it should be by motion to have all the pleas but one taken from the files.</p>

<p> When case may pass to the supreme court upon exceptions. Trustee process. When suit may be brought within one year after defeat of former suit. </p> <p>Whenever a case is so far ended in the county court, that, if no exceptions were taken, it would go out of court, then, if exceptions are taken, it may with propriety pass to the supreme court.</p> <p>When, in a suit commenced by trustee process, judgment is rendered in the county court for the principal defendant, and exceptions are allowed, the case may pass at once to the supreme court, without any hearing or formal judgment in reference to the liability of the trustee.</p> <p>The statute, — Rev. St. 307, § 16, — which provides, that when an. action, commenced in time, shall be abated, or be “ otherwise defeated or avoided ” “ for any matter of form,” a new action may be commenced within one year thereafter, does not extend to a case, where the first suit was terminated by a non-suit, occasioned by the inability of the plaintiff, through poverty, to comply seasonably with an order, made by the court, that the plaintiff furnish additional security, by way of recognizance, for the defendant’s costs.</p>

<p> Union school districts. Authority of town over territory of union district. Waiver of rights by district. </p> <p>When a union school district has been formed from territory in two towns, either by concurrent vote of the towns, or by act of the legislature, previous to the power to constitute such districts being conferred upon towns, qumre, whether one of the towns has authority to alter the limits of such district by setting individuals, within such town, from such union district to another district within the town.</p> <p>But if the exercise of such authority by the town be inconsistent with the rights of such union district, such rights may be waived by vote of the district; and if the district consent, by vote, that an individual within its limits may unite with some other district, and such individual be set, by vote of the town, to another district, the union district cannot afterwards assess a tax against such individual.</p>

Trespass. The suit was commenced in the county of Orange. The declaration contained three colints, — first, for breaking and entering the plaintiff’s dwelling house and injuring his goods therein,— second, for breaking and entering the plaintiff’s dwelling house and forcibly expelling him and his family therefrom, — third, de bonis asportatis, in common form. Plea, the general issue, with notice of special matter of defence.

Book. Account. The suit was commenced in the county of Washington. Judgment to account was rendered, and an auditor was appointed, who reported the facts substantially as follows. The plaintiff’s account was in part for granite, quarried by him, for which he charged $1,75 per cubic yard, and for trimming granite, for which he charged twenty cents per foot.

Book Account. The suit was brought in the county of Washington. Judgment to account was rendered in the county court, and an auditor was appointed, who reported, in substance, as follows. The plaintiff was a wheelwright, and the defendant was a blacksmith, and they agreed to exchange work, and the defendant procured of the plaintiff the work and articles charged in the plaintiff’s account, relying upon the agreement and expecting to pay therefor by work at his shop.

Assumpsit against the defendant as indorser of a promissory note for 200,00, dated April 22,1842, executed by Harvey Bancroft, payable to the defendant', or order, and by the defendant indorsed to… Held: to Joseph A. Wing, for collection, with instructions to demand payment of Bancroft and give notice to the defendant of the non-payment. Wing demanded payment of the note in suit and gave notice to the defendant of the non-payment.

Trespass on the Case, brought against the defendant for negligence in the discharge of his duty as postmaster at Waterbary, whereby it was alleged a letter containing $50,00 in money, the property of the plaintiff, was lost. There was also a count in trover for the same money. The suit was brought in the county of Washington. Plea, the general issue, and trial by jury, March Term, 1851, — Poland, J., presiding.

Trover, brought in the county of Wasiiinston. At the May Term, 1848, of the county court, the defendant moved to dismiss the suit, on the ground that the plaintiff was allowed to amend the declaration, by adding a count for the conversion of additional property, — which motion was overruled; and on trial at a subsequent term it was ascertained, that the property included in the additional count was taken by the defendant at the same time with that mentioned in the original…

<p>Replevin, brought in the county of Washington, for beasts impounded. The defendant pleaded two pleas in bar. 1. That in 1847 he was pound keeper in the town of Waterbury, and one Wright, August 2, 1847, impounded the beasts in question, which had been found in his inclosure doing damage, and that the defendant, as pound keeper, detained them in the pound, as by law he was bound to do, and in no other way, and that, from the time the beasts were impounded until they were taken from the defendant by the process in this suit, they were not discharged from the pound by Wright, or by operation of law, or in any other way, and no certificate of the amount of damage done by the beasts to Wright was obtained, or delivered to the defendant. 2. That the defendant was pound keeper, and the beasts were impounded by Wright, arid were detained by the defendant as pound keeper, as alleged in ¡the first plea; that within twenty four hours after the impounding Wright gave notice to the plaintiff, the owner of the beasts, to appear at the dwelling house of Wright within twenty four hours to appoint appraisers to appraise the damage done by the beasts; that the plaintiff appeared accordingly, and the parties appointed appraisers, who did not agree upon the amount of damages and did not appoint a third person as appraiser; that thereupon Wright applied to a justice of the peace, by whom appraisers were appointed, August 6, 1847, who appraised the damages at $7,00, and, on the tenth of August, 1847, transmitted a certificate thereof to the defendant, as pound keeper, with a farther certificate, that their fees amounted to $1,00, and that Wright’s fees, for impounding the beasts, amounted to $2,00; that the damages, with the legal charges for impounding and keeping the beasts, had not been paid to the defendant, or to Wright; and that the beasts had never been discharged by the act of the parties, or by operation of law, whereupon the defendant detained them, as he was bound to do.</p> <p>The plaintiff replied, that on the fifth day of August, 1S47, he tendered to the defendant, as pound keeper, $1,50, for the purpose of redeeming the beasts from the pound, as the legal fees of the defendant for receiving the beasts into the pound and taking care of them; that this was after the expiration of forty eight hours from the time when he received notice of the impounding; that at that time no damages, done by the beasts to Wright, had been ascertained by appraisers, and no certificate thereof had been deposited with the defendant, as pound keeper; that $1,50 was the full amount of all legal fees, to which the defendant was legally entitled, as pound keeper; that he kept the said sum of $1,50 at all times ready for the defendant, until August 12, 1847, when the defendant received the same in full satisfaction of his fees as pound keeper; that the plaintiff demanded of the defendant the beasts, at the time the tender was made, August 5, 1847, at the place where the cattle were impounded, and the defendant refused to surrender them; and that thereupon he brought this writ of replevin against the defendant. To this replication the defendant demurred.</p> <p>The county court adjudged the replication insufficient. Exceptions by plaintiff.</p> <p>Replevin, at common law, lies only for an unlawful taking; Galloway v. Bird, 12 Moore 547; and will not lie for goods unjustly detained; 4 Bing. 299. By our statute, — Rev. St. c. 30, § 14, — it is provided, that replevin may, in certain cases, be maintained for wrongful detention ; but it must be in other cases, than for beasts distrained, or by a defendant for goods attached. Sec. 9 shows, that the wrongful taking is the only thing in issue in replevin, under the statute, for beasts taken damage feasant and impounded for that cause. If the defendant did in fact wrongfully detain, an action on the case is the only remedy against him. Steph. N. P. 2483. In this state an action of replevin cannot be sustained, except under the statute. Miller v. Warner, Brayt. 168.</p> <p>The defendant did not wrongfully detain the beasts. The statute is silent as to the time, in which the certificate of damages is to be made; it must therefore be construed to intend a reasonable time. But it is imperative, that no beast, so impounded, shall be discharged, until such damages and legal charges are paid ; and the pound keeper cannot discharge the beasts, until the certificate of the damages, or showing that there is no damage, is delivered to him. No penalty is intended to be imposed upon the owner for not redeeming, until after the appraiser’s certificate is furnished to the pound keeper. Whether he should earlier replevy, it is not necessary to discuss; if he should, it must be based on a controversy with the impounder.</p> <p>After the expiration of the forty eight hours limited by Rev. St. c. 88, § 10, and on being paid his fees, the defendant had no right to detain the cattle. The statute is to receive a reasonable construction. Impounding cattle is a summary mode of redress, and to be viewed strictly; and no detention of cattle, except one fairly authorized by statute, is justifiable. The impounder is liable, if he neglect promptly to give notice within twenty four hours. Rev. St. c. 88, §§ 5, 9. The appraisers are to transmit their certificate “forthwith.” By the tenth section of chap. 88 the plaintiff was compelled to replevy. Is he compelled to bring a groundless suit, under a penalty ? If sec. 10 has not limited the time, within which the certificate of damages may be transmitted, there is no limitation, and cattle may be impounded and detained indefinitely, without remedy.</p>

<p> Judgment, when defendant is summoned as trustee of plaintiff in suit pending. </p> <p>When the defendant, in a suit pending, is summoned as trustee of the plaintiff, and is adjudged trustee for the full amount of the plaintiff’s claims against him, which judgment remains unsatisfied, judgment should be rendered for the plaintiffin the first suit for the amount of his claim, but the court will order execution stayed, until the plaintiff shall cause the defendant to be released from the trustee suit.</p>

<p> Parol evidence to control deed. What will pass by a deed. Disturbance of right. Appraisal of damages by rail road commissioners. </p> <p>A deed, absolute in its terms, cannot be controlled by oral evidence of conversation between the parties, previous to its execution.</p> <p>A deed, which is absolute in its terms, and without conditions or reservations, will have the effect to convey the land described in it, with all the privileges of drawing water from other portions of the grantor’s land, which were then in use, as appurtenant to the land.</p> <p>And if water is conveyed in an aqueduct from a spring upon another portion of the grantor’s land to the land conveyed, and there used at the time of the conveyance, any diversion of the water by the grantor, although upon that portion of his land not conveyed by the deed, will be a disturbance of the right of the grantee, for which an action may be sustained. The grantor cannot be allowed to say, in defence, that the grantee did not desire to use the water, or that he has suffered no detriment.</p> <p>The defendant was the owner and occupant of a messuage, to which water was conducted, for use, by an aqueduct, from a spring upon another portion of his land, and the Vermont Central Rail Road Co. having located their rail road across the same, the commissioners were called upon to appraise the damages thereby occasioned to the defendant. At the hearing before the commissioners the defendant stated, that he should use the water for the purpose of supplying a new house, which he contemplated erecting, and that the commissioners need not take the water into the account in assessing the damages. The president and engineer of the company were present, and heard this statement, and made no claim to the use of the water; and the water was not taken into consideration by the commissioners, in assessing the damages. The defendant received from the company the amount of damages assessed by the commissioners., and executed to the company an absolute deed of the premises, without condition or reservation. And it was held, that the right to use the water upon the premises passed by the deed.</p>

Trover for a horse, brought in the county of Washington. Plea, the general isue, and trial by jury, March Term, 1851, — Poland, J., presiding. It appeared, that the parties made an exchange of horses, which was claimed by the plaintiff to have been conditional, with the privilege of “ trading back.” On the part of the defendant it was claimed, that there was no condition to the trade, by which the plaintiff had a right to rescind the contract.

This was a freehold action, brought before a justice of the peace, pursuant to the statute of 1842, and came by appeal to the county court for the county of Washington. The defendants pleaded several pleas; Lawton pleaded the general issue; Bucklin disclaimed as to all except fifty acres, and as to that pleaded the general issue; and Holden and Buxton disclaimed as to the fifty acres mentioned in the plea of Bucklin, and pleaded the general issue as to the residue.

Scire Facias, brought in the county of Washington, upon a recognizance, entered into by the defendants, before a justice of the peace, for the appearance of Prentiss Brooks before the county court, to answer a charge of assault and battery in usual form. The proceedings before the magistrate were had upon an information signed by the state’s attorney. The defendants demurred to the declaration.

Petition for a writ of mandamus. It was alleged, that an order had been made by the chancellor, that the treasurer of the state pay from the bank safety fund the sum of $34,617,23, for the purpose of paying the debts of the Essex Bank, and that he refused to do so, The treasurer filed his answer, alleging that he had paid the entire fund, subject to his control, except that part of it which had been contributed by the Bank of St. Albans since its re-charter, — that bank…

Assumpsit upon a promissory note. The writ was made returnable before H. Hale, a justice of the peace, on the twenty first of October, 1848, and the parties appeared on that day, and the suit was continued by the justice to November 13, 1848; and on that day, Justice Hale being absent, the suit was continued to December 23, 1848, by A. L. Catlin, a justice of the peace, but who was related to the plaintiff within the fourth degree.

Boon Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported substantially as follows. The account of the plaintiff consisted principally of charges for goods purchased by the defendant at the plaintiff’s store in Middle-bury ; ■ and the principal charges in the defendant’s account were for lumber delivered to the plaintiff, or for sawing logs at the defendant’s mill in Ripton.

Book Account. The action was brought against Selah Chamberlain, John Bradley, Timothy F. Strong, James Warrell, Joseph Chamberlain and Stephen C. Walker, as partners under the firm of Chamberlain, Strong & Company. Judgment to account was rendered, and auditors were appointed, who reported the facts substantially as follows.

’Trespass on the Case, to recover for injury alleged to have been occasioned by reason of the insufficiency and want of repair of a public highway. Plea, the general issue, and trial by jury, December Term, 1850, — Pierpoint, J., presiding.

This was a motion for an injunction, predicated upon a bill filed by Bradley and others against Richardson and others, to stay execution of two judgments, amounting together to the sum of $51,992,-04, recovered by Richardson and others, at the October term of the Circuit Court, 1851, against the Burlington Mill Company, a corporation established, under an act of the legislature of Vermont, for the manufacture and sale of woolen goods.

This was an action originally commenced in one of the subordinate courts of this state, held by a justice of the peace, and was, removed from such state court into this court, at the instance of the defendant, by a writ of habeas corpus cum causa. It was an action of trespass for taking and detaining a certain horse belonging to the plaintiff.

Tins was a petition addressed to the equity jurisdiction of the court under the bankrupt act, and set forth the following facts. Jones, one of the respondents, was declared a bankrupt, on his own application, by the District Court of the United States in the northern district of New York, and Moore, the petitioner here, was appointed his assignee.