Volume 24 — Vermont Reports

Trespass on the Case. This was an action against the defendants, as listers. for the town of St. Johnsbury, for the year 1848. The defendants pleaded the general issue, which by'agreement was tried by the court. Upon the trial, the following facts appeared in evidence, and were found by the court.

Assumpsit on a promissory note, and submitted to the court upon the following statement of facts, as agreed to by the parties: “The plaintiff, at and before the time of giving the note in question,… Held: that even though the creditor appeared and took a dividend under the laws of another State, which were unconstitutional, it was no bar. 3.

Trover, for a quantity of hay, corn, rye, oats and wood. Plea, general issue and trial by the court.

This was an action of Trover for personal property. Plea, the general issue and trial by jury. Held: that the leaving the paper with the recording officer, and his filing it “ received for record,” was insufficient where the statute required a record to give it validity. Burton v. Pond, 5 Day, 160. Carpenter v. Sawyer et al., 17 Yt. 121. Morton Clark v. Edwin, 19 Yt. 77.

Assumpsit upon a promissory note. Plea, tlie general issue, and trial by the court, September Term, 1851,— Poland, J., presiding.

Book Account. Judgment to account ivas rendered in tlie County Court, and an Auditor was appointed, wlio reported, with other facts, the following: The debit side of the plaintiff’s book, at the fime of the commencement of the suit, was less than one hundred dollars. The defendant moved that the action he dismissed, for the reason that the court had no jurisdiction of the same.-' The County Court,.

This was an Appeal from the Probate Court. The.petition set forth, that ■one Mary Lawrence died at Burlington, on the 24th day of November, 1850, intestate, and leaving estate to be administered upon; that thirty days next after the death of the said Mary hath not yet elapsed; the petitioner, as matter of right, applies to the said court, to be himself appointed- administrator of the estate of the said Mary, deceased.

[ In Chancery.] Appeal from the court of chancery. The orator alledgecl In the hill, that Bial and Henry Boynton were partners in manufacturing of cloths and the purchase of wool, in Hinesburg, Vt., and in. full business and credit, all- of which was well known to the defendant ; and on or about the 24th day of June, 1846, the defendant, being possessed of a large quantity of wool, proposed to sell it to the said B. & H. Boynton, the partnership firm of the said Bial and…

Trover, for a quantity of wool. Plea, the general issue, and trial by the court.

Assumpsit ujson a promissory note for one thousand dollars, dated April S, 1849, executed by the defendant and made payable six months after date thereof, for value received, to the order of the treasurer of the Burlington Mill Company, and by the said treasurer indorsed to the plaintiffs.

[In CHANCEEr.] Appeal from the court of chancery. The facts of the ease sufficiently appear in the opinion of the court.

Action or book account, in which. Storm R. Haight, Henry Y. B. Barker, William Eggleston and Benajah Barker, as partners under the firm of Eggleston, Barker & Co. were summoned as trustees of the principal debtor. Judgment was rendered in the county court against the principal debtor, to which there were no exceptions.

<p>Account. The Facts in the case sufficiently appear in the opinion of the court.</p>

Book Account. The action was commenced before a justice1 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 : The plaintiff’s account was not disputed, but the defendants relied upon the statute of limitations, for defense.

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:— The plaintiff presented the following account:— Patrick Dougherty to A. J. Soule, Dr. 1. April 19, 1850, to 19J doz. Eggs, at 10 c. $1,95' 2. “ “ to 3 doz. Pipes, 15 3. “ “ to J doz. Tumblers, 50 $2,60 $2,10-By Cash, 50 8,55 4.

<p> Bill in Equity. Equitable Jurisdiction. Set-off. Bond. Penalty. Damages. Practice in Equity. </p> <p>The decease of a party an obligor in a bond, and also the holder of notes given by the obligees in the same bond for the same consideration upon which the bond was given, and the mere representation of his insolvency, his estate being confessedly solvent, is no reason why a court of equity should interfere in favor of the obligees, and decide that the amount of the notes should be set off against the sum due on the bond, and render a decree in favor of the obligees for the balance, if any. But if the obligees in the bond, being the makers of the notes, are insolvent, a court of equity will interfere in favor of sureties who signed the notes upon the security of the bond, and will decree a set-off of the amount due on the notes against, what was due on the bond. The consideration that the nominal parties to the contracts are not strictly mutual, is not a valid objection to decreeing a set-off in equity, if the real parties upon whom the burden is ultimately to fall, are the same.</p> <p>Where S. and others bought of W. his interest in, and good-will of, the manufacturing and sale of certain articles, within a certain district, and gave notes to the amount of $8000 therefor, and W. at the same time executed to S. and the others a bond “ in the penal sum of, ten thousand dollars,” conditioned to be void “ if the said W. shall hereafter wholly refrain from manufacturing and vending,” &c., and a breach of said condition by W. was proved; held, that under the cir cumstances o& the case, the sum so named in the bond was a penalty, and not liquidated damages.1</p> <p>The refusal of the chancellor in the court below to allow a party to file a supplemental bill before the original one comes to a hearing, is not a final decree, from which in the first instance, an appeal lies; nor is it strictly revisable in the superior court, being a matter of discretion.</p> <p>But where such refusal proceeds upon special grounds, which are shown to have been misapprehended, the party, after correcting this misapprehension, will be permitted to renew his application.</p> <p>Where a bond is executed to three persons jointly; — their assigns, administrators, &c., not being named in the bond,— then- interests being also joint as purchasers of the business of the obligor of the bond, and the nature of the covenants showed that they were not founded upon any personal confidence in the three persons to whom the bond was executed, and where both parties expected the bond to enure for the benefit of the business sold out, and where the obligor had repeatedly assented to his liability after a change in the parties to whom the bond was executed, a court of equity will hold the obligor liable on his bond, not only for damages accruing from breaches thereof while the original parties to the bond remained unchanged, but for those from breaches after the change of parties.</p>

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the following facts : That in the fall of 1844 or 1845, one James Shaw, a blacksmith by trade, built a blacksmith shop, on land owned by one Best, said Best having consented that said Shaw might do so.

Assumpsit on the warranty of a quantity of hay; the declaration was as follows: “ In a plea of the case, for that the defendant in consideration “ that the plaintiff would pay defendant fifty-five dollars for a certain mow of hay, to wit, on the 31st day of January, 1850, the “ defendant undertook and promised plaintiff, that said hay was “ cut and cured in good season, was good bright hay, and plaintiff “ then and there paid said defendant fifty-five dollars, and avers…

Indebitatus Assumpsit for money paid, laid out and expended. Plea, non-assumpsit, and trial by jury. On trial, tlie plaintiff offered in evidence, a note dated May 1, 1838, signed by tlie defendant, and one Hetty M. Keyes, for the sum of two hundred and ninety-six dollars, payable to Elizabeth G. and Sarah B. Little, on demand with interest.

Assumpsit. Tbe action was commenced by James II.. Farrar, in the name of H. D. Farrar, his guardian. The defendants plead in abatement that II.

This was an Indictment for Manslaughter in several counts. ' Plea, not guilty, and trial by jury, in the county court, September Term, A. D. 1851,— Bennett, J., presiding. On trial, the government introduced testimony, tending in all essential particulars, to prove the crime of manslaughter as charged in the indictment.

Assumpsit on two promissory notes. The defendant filed liis declaration on hook in offset, judgment to account in the county court, and auditor’s report, which was accepted. Plea in offset and statute of limitations, and replication — issue to the court.

Scire Facias against one of two joint recognizors, ancl the administrators of the other. The defendants demurred to the declaration. County court, September term, 1851. The court adjudged the same to be insufficient, and rendered,judgment for the defendants to recover their costs. Exceptions by the plaintiff. The facts in the case fully appear from the briefs and opinion of the court.

The appellants set forth in their plea “that the said Alanson M. Clark ought not to be appointed administrator of the estate of the deceased, because the said Thomas Clark did not die intestate, but on the contrary thereof, in his life time made and executed his last will and testament, and therein appointed Cary Clark his executor, and that said Cary duly presented said will to the probate court for the district of Georgia, &c., and that said court on the eleventh day of…

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

This was an action on the case for false imprisonment. Held: that the services were void, and that the doings of the deputed persons were trespasses. Could any after adjudication, in those cases have been pleaded as an estoppel in those actions, for trespasses committed by the deputed persons ?

<p> Probate Bond., Prosecutor. Waiver of Statute provisions by defendant. </p> <p>Wlien an applicant prosecutes a bond, as provided in the Compiled Statutes, p. 3H, Sec. 2, having obtained permission from the probate court, and neglects to cause his name to be indorsed on the writ, as prosecutor of the same; if the defendant goes to trial on demurrer to the declaration, or has a trial on the merits, and the case passes to subsequent terms of the court, it is a waiver of the objection.</p> <p>And where the applicant at the time of the return of the writ, lodges a certified copy of the bond, and a certificate that permission has been granted to prosecute the bond, with the clerk, it is sufficient to give him all the rights of a prosecutor,* though the clerk neglects to make his entry of the same.</p>

Book Account. Judgment to account was rendered in tlie county court, and an auditor appointed. The facts reported by the auditor sufficiently appear in the opinion of the court. The county court, August Adjourned Term, 1851, — Pierpoint, J., presiding, — rendered judgment upon the report for plaintiffs. Exceptions by defendant. The plaintiffs received the cloth and had it receipted to themselves, had it sold, but rendered no account of sales.

Trover for a quantity of corn. The case was referred under rule of court, and the referees reported substantially the following-facts. That sometime in the sping of 1849, the plaintiff and#me John Dow hired of the defendant for a certain price per acre, three or four acres of land to be planted to corn, and the defendant was to have the stalks.

This was an action in three counts, on the case for injuries sustained in consequence of the insufficiency of a highway in said town of Duxbury.

Trespass quare clausum fregit. The declaration described the land as follows: “ In a plea of trespass, for that the defendant on “ the second day of April, A. D. 1849, at Whiting in the county “ of Addison aforesaid, and on divers other days and times between “ that day and the commencement of this suit, with force and arms, “ broke and entered the plaintiff’s close situated in Whiting afore- “ said, and bounded on the south by land owned by widow Murray “ and James…

This was Application or Petition to the supreme court, by the town of Bridport, for a writ of certiorari, to vacate the proceedings of the county court in accepting the report of commissioners in laying out a highway. The facts are sufficiently stated in the opinion delivered by the court.

[In Chancery.] Appeal from the court of chancery. The court of chancery dismissed the cross bill, from which decree Thrall, the orator in the cross hill, appealed, he being one of the defendants in the original bill.

This was an action of Assumpsit on a promissory note given to Franklin B. Goss, or bearer, and the plaintiff declared upon the note, as bearer.

<p> Subscription-paper. Liability of subscribers. Consideration. </p> <p>N. with other persons, signed a subscription-paper, thereby promising to pay to 5 the trustees of Troy Conference Academy, or to their order, the sum of one linn- 1 dred dollars, for the purpose of enabling them to pay the debts of said Academy; j one-half by the first of June, 1844, the remaining half in one year thereafter, pro- > vided that the sum of twenty thousand dollars is subscribed by the first of Jan- j uary, 1844; the sum of twenty thousand dollars was subscribed by the first of j: January, 1844, and N. paid one half of his subscription and then gave notice that ¡j he should not pay the remaining half. In an action brought against N., after the ¡¡ expiration of the said year, to recover the remaining half of his subscription, it was held, that the obligation imposedjipen and assumed by the trastees of the ! Academy to see to, ancUmake* the, application ofUiisdiinney. as directed by the f subscribersApjhiíi^fund, so cojisn^matecl“tlffircra^act, that N. coulcTn'ot avoid f payment on the ground that there wa’s- na-cdhsideration for the promise; and » that whether the relation each subscriber bears to the other, or to the institution j itself is considered, N. is estopped from denying the obligation of his contract.</p> <p>j; The amount of the consideration is unimportant, and it is not necessary in this i State, that it should appear upon the face of the contract or agreement, as it j may be proved by testimony aliunde.</p>

' Debt. The declaration contains several counts; the four first, state an indebtedness to the plaintiffs by the Pawlet Manufacturing Company, and that by a provision in their charter the defendants are liable as stockholders, in their private and individual capacity.

Audita Querela. The Complainant alledged in bis declaration, that at the April term of the Eutland County Court, 1844, the said Jirah Vaughn recovered judgment against the complainant, for the sum of $1268.66, damages, and the sum of $20.19, costs of suit; which judgment so entered, was by consent of parties under the following rule of court: that no execution issued until after the adjourned court of chancery, — judgment to remain subject to said court of chancery as to…

Trespass for assault and battery. Plea, son assault demesne ; the plaintiff replied de injuria. Held: as he stood with his face towards the north, “ nearer the west than east end of said rail, with the east eiid in- “ dining towards the ground; and as the defendant stepped on to “ the wall the plaintiff brought the west end of the rail round “against him and pushed him hack off the,wall.

Book Account. The action was commenced before a justice of the peace, and came to the county court by appeal.

Trespass on the Case, brought against the defendant Gleason, as Sheriff of the county of Chittenden, in two counts, for not keeping and delivering several articles of personal property, for thirty days after the rendition of judgment, to respond the said judgment, attached by him as such Sheriff, at the suit of the plaintiffs against one David French. The plaintiffs made no claim for the property which was sold on the execution of Wm.

[In Chancery.] Appeal from the court of chancery. The facts of the case sufficiently appear in the opinion of the court.

This was an action on the Case, to recover for the neglect of one John Carvey, constable of Readsboro in executing, collecting and paying an execution in favor of the plaintiff against Sylvester and Luna Bishop. The rendition of the judgment in favor of the plaintiff against said Sylvester and Luna Bishop, the issuing execution thereon, and that the same was placed in the hands of Carvey, then constable of Readsboro, for collection, was duly proved.

Book Account. Judgment to account was rendered in the county court, and auditors were appointed. June term, A. D. 1851, of the county court, on the first day of the term, the plaintiff entered on the docket of the court a non-suit; and afterwards on the same day the defendant filed the report of the auditors. The plaintiff claimed the right of entering a nonsuit in the case; to which the defendant objected, and claimed judgment on the report of the auditors.

[In Chancery.] Appeal from the court of chancery. The orator alledged in his bill, that Heber Chamberlain being indebted to one Solon Clark, in Rochester, Vermont, for eleven hundred dollars, (specifying the notes,) to secure the amount, on the 6th day of September, 1841, made mortgage of certain lands in said Rochester, — being the farm which said Clark had that day conveyed to the said Heber Chamberlain; that on the 16th day of October, 1848, said Clark assigned the…

<p> Booh Account. Practice. Dissolution of Copartners. Liability of the retiring partner. </p> <p>If a question is not raised in the court below, it cannot be urged or insisted upon as forming any ground of error in the supreme court.</p> <p>■Where goods were delivered before any publication of the dissolution of the partnership, and the retiring partner still remained in the store, though in the capacity of clerk, but with the old sign up, it was held, that the credit must be regarded, as fairly given to the partnership, and that the vendor of the goods, in regard to dealings was entitled to the same notice, as if the first dealing had been before the actual dissolution of the copartnership.</p>

Book Account. The action was commenced before a justice of the peace and came to the county court by appeal, taken by the defendants. Judgment to account was rendered in the county court, and an auditor appointed, who made his report.

<p>. Assumpsit. The suit was commenced before a justice of the peace, and came to the county court by appeal. Plea, general issue, and. trial by jury.</p> <p>It was agreed by the parties, that the plaintiffs were partners as alledged in the declaration, and that by the contract on which the action is brought, the plaintiffs were to take, and the defendant was to deliver the twenty-six lambs named in the declaration at the place therein named, and for the price therein named, on the fifteenth day of August, 1850, that being the day on which the plaintiffs were to take other lambs bought by them, in the vicinity of the defendant. And it appeared in evidence, that plaintiffs made no call on the defendant for a delivery of the lambs until the sixth day of September, 1850. It further appeared, that on the 18th day of August, 1850, the defendant sold the said lambs to a drover from Massachusetts, and on the 22d of the same month delivered them to said drover in pursuance of said sale. The plaintiffs also introduced testimony tending to show the amount of damage they had sustained by the breach alledged.</p> <p>The county court, September term, 1851,— Collamer, J., presiding, — directed the jury to return a verdict for defendant. Exceptions by plaintiffs.</p> <p>The failure of the plaintiffs to take the sheep at the day did not give the right to rescind. The defendant was bound to wait at least a reasonable time, and that question should have been submitted to the jury. Chit, on Con. 427, Hende v. Wkitehouse, 7 East 571. Bloxam v. Saunders, 4 B. & C. 945. Wilmshurst Y..BowJcer, 5 New Cases 551.</p> <p>In actions for damage in case of non-delivery the plaintiff must alledge and prove on trial that he was present at the time and place ready and willing to receive and pay for the property. Tapping v. Boot, 5 Cowen 404. Phil, on Ev., Cowen & Hill’s Notes, p. 102, notes 297 and 298.</p> <p>"When a party wholly fails to perform an offer, after the time elapses, the adverse party is under no obligation to perform. White v. Yaw, 7 Yt. 357. Oleaveland v. Burton et al., 11 Yt. 138.</p> <p>Payment or earnest money vests the property in the vendee. Lang on Sales, 270.</p> <p>In the case at bar no earnest was paid, the contract was certainly executory and no property passed.</p>

Petition eor Certiorari. The selectmen of the town of Westminster, petitioned the county court, April term, 1849, setting forth that said town had been required to build and make a bridge across Saxton’s River in said town, and a new piece of road at each end of said bridge, which bridge >and road are evidently for the accommodation of other travel'than the inhabitants of said town of Westminster, and is more especially for the accommodation of the towns of Rockingham,…

Assumpsit .on a promissory note, and was tried upon issue to ,tlie Court. Upon the .trial the plaintiffs, who were indorsees of the note, read in evidence without objection, the note declared on, its execution and indorsement being conceded, and then rested.

<p>Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows:</p> <p>That plaintiff was chosen by the defendants to superintend the repairing of defendants’ school house, and that plaintiff’s account amounting to over $70, was for said repairs, and that the repairs made were necessary, that an ordinarily skilful and shrewd man would have made the repairs for $50, or $55. That the plaintiff acted in good faith in what he did do, and with as much skill and shrewdness as he exercised in the management of his own affairs,, that his want of skill and shrewdness was known to the defendants when plaintiff was chosen agent. That plaintiff was present at the school meeting when he was chosen agent, and that said meeting at the time voted “ to raise not to exceed $60, to repair said school house.” The auditor found the sum of $66,29 of plaintiff’s account to have accrued under his agency, and the sum of $6,17 for work done at the request of the prudential committee of said school district, after plaintiff had done all that he felt authorized to do under his agency. The county court render judgment on ■ the report for plaintiff to recover both sums.</p> <p>Exceptions by defendants.</p> <p>Insisted that plaintiff was restrained by the vote of the school district to the sum of $60, and that he could only recover for the amount the service was worth to the defendants. Also, that the meeting, October 27th, 1848, was not legally warned.</p> <p>Insisted that plaintiff was entitled to recover such sum, as the expenditures and services were reasonably worth to the plaintiff. That the vote of the district simply limited the prudential committee in the assessment, and not the costs of repairing the school house. Rogers v. Baiiby Univ. Soc., 19 Yt. 187.</p> <p>That agent might do. the work himself and recover in this form of action. Sawyer v. Meth. Epis. Soc. in Royalton, 18 Yt. 405, .and 19 Yt. 187.</p> <p>That plaintiff’s want of skill, &c., was known to defendants at •the time they appointed him agent, and the loss, if any, must fall upon defendants. Story on Bailments, § 435.</p>

<p> Appeal from Commissioners. Motion to dismiss. </p> <p>The plaintiffs took an appeal from the commissioners on the estate of S. B. Wales, hut neglected to file, in the county court, a certified copy of the proceedings in the probate court, with proper evidence that notice of such appeal lias been given to the adverse party according to the order of the probate court, as provided by statute, and also for the period of about six months no notice was given to the adverse party, of such appeal. The county court, on motion, dismissed the cause as being irregularly in court. Upon this state of facts, it was held, that if the court below, in the exercise of their discretionary power, have refused to retain the case, and have ordered it dismissed, that decision must be conclusive between the parties, and cannot be re-examined by the Supreme Court on exceptions.</p>

Assumpsit upon a promissory note executed by the defendants to Seth Herrick in his life time. Plea general issue, and trial by jury. It appeared that the action was brought to the county court by Oshea Smith, administrator of Herrick, and in whose name it was entered.

<p>Liability of Towns under Chap. 91 of Compiled Statutes.</p> <p>Lyman Ballard, a minor, whose legal settlement was in the town of S., was in feeted with the small pox while residing in the town of B., the selectmen of said town of B. provided physicians, nurses, and necessaries for said Lyman, and he was not of sufficient ability to pay said expenses; but his father was sufficiently able to pay them. It was held, in an action brought by the town of B. against the town of S. to recover said expenses, that the town of S. was primarily liable to the town of B. for whatever sum they had actually expended, in providing physicians, nurses, and necessaries for said Lyman.</p>

<p>Information, in one hundred counts, — for selling without a license, foreign and domestic distilled spirituous liquors in a less quantity than twenty gallons, and in quantity of one pint and more.</p> <p>The testimony on the part of the government, tended to show that the respondent, between the first day of January, A. D. 1850, and the thirty-first day of December, A. D. 1850, sold rum in various quantities, from one pint to two gallons, at various times, to the number of forty-nine or over.</p> <p>The respondent requested the court to instruct the jury, that the government must prove the sale of the quantity alledged in the several counts. That proof of the sale of one pint would not support a count for the sale of one quart or one gallon, the proof of the sale of one quart or one gallon would not support a count for the sale of one pint. The court refused so to instruct the jury.</p> <p>The respondent also requested the court to instruct the jury, that under the present information, they were not at liberty to find the respondent guilty of any breaches, except such as are contained on the last sheet of the paper presented as the information, (that being the only sheet signed, though the sheets were connected together.)</p> <p>The court refused so to instruct the jury, but directed them to> return a verdict of guilty, for each act of selling rum in any quantity less than twenty gallons, not exceeding in number, the counts, for selling rum, contained in all the sheets of the paper submitted as the information in this case.</p> <p>To all which, the respondent excepts.</p> <p>After verdict and before judgment, respondent also moved in arrest of judgment and sentence, for the insufficiency of the information, which motion was overruled by the court.</p> <p>To which the respondent also excepts.</p> <p>1. Every charge in an indictment must be sufficient to support itself. And the respondent should he informed, in the indictment, of the extent of the crime with which he is charged.</p> <p>In the present indictment, he is charged, in one count, for instance, with selling one gallon of rum, and the jury " directed,” (the jury not being permitted to judge of the law or fact,) to bring in a verdict of guilty on that count, even though the proof show a sale of but one pint. We think that herein there, is error. 1 Chit. Crim. Law, 172, 229.</p> <p>An indictment, or information, should state the offense charged with precision, “ should be certain to every intent, and without any intendment to the contrary. 1 Chit. Crim. Law, 172.</p> <p>2. The jury are the judges of the law in criminal cases. State v. Croteau, 23 Yt. 14. U. S. Law Mag. Sept. No., 1851, p. 257, 278;</p> <p>No discretion was left to the -jury in this case, of law or fact; they were but the mere automatons of the court, and signed such verdict as they were directed to. Such a course of proceeding is repugnant to the constitution of our State, and to the decisions of this court. Art. 10 of Constitution, Comp. Stat., p. 32.</p> <p>3. Judgment should'be arrested for the insufficiency of the information. There are but five perfect counts in the information in ,alL</p> <p>Jt is not enough for a States’ Attorney to fill up one sheet of blank counts in an indictment and sign one of the half sheets and then ,claim that twenty-one other half sheets unsigned are made perfect indictments by merely stringing them to the first half sheet that is signed.</p> <p>This is dispensing criminal justice in quite too criminal a manner — and is establishing a precedent that, may ultimately be productive of evil consequences.</p> <p>The law which has always governed in matters of this kind, ought not to be further relaxed.</p> <p>It is well settled, not only in civil suits, but in criminal prosecutions, that a party is not bound to prove the allegations of time, place, quality, quantity, or value as ¡alleged, unless they are descripjive. 1 Greenleaf Ev. §61. 3 S.taxkie Ev. 1539.</p> <p>2. The fact, that each sheet has a distinct caption, is no objection, for it is no part of the bill, and may be rejected as surplus-age. State v. Gilbert, 13 Vt. 647. State v. Nixon, 18 Vt. 70.</p> <p>We are not aware of any objections tó this information, which do not apply to the information. State v. Bowen. As to the information, State v. Hogedon, 3 Vt. 481. State v. Gilbert, 13 Vt. 647. Clark v. Stoughton et al., 18 Vt. 50.</p>

Assumpsit. The action was commenced before a justice of the peace, and came to the county court by appeal. The defendant moved to dismiss the suit, on the ground that the same was not appealable. The county court overruled the motion, May Term, 1850. Exceptions by defendant. The case was tried May Term, 1851. Plea non assumpsit and offset. Issue to the country on both pleas, and trial by jury.

[In Chanceky.] Appeal from the court of chancery. The orator alledged in her bill, that on the 20th day of June, A. D. 1825, she intermarried with Ephraim Jenny, and lived with him till 1834, when he deserted her, he having a large property and children by a former wife; that plaintiff had $300, and that said Ephraim conveyed all his property to Josiah H. Jenny, the defendant, with a view to defeat the plaintiff of her marital rights, and that since, Josiah H. has conveyed…

Trespass on the Case, for the default of a town clerk. The declaration was as follows : “ The towns of Windsor and West Windsor, (formerly constituting a sole town hy the name of Windsor,) in the county of Windsor, are summoned to answer unto David Hunter of Windsor, in the county of Windsor, in a plea of the case, for that heretofore, to wit, at Windsor, in said county of Windsor, from the month of March, A. D, 1835, until the month of March, A. D. 1841, (during which…

[IN CHANCEKY.] This case was decided in Windsor county, March term, 1849, and the opinion was sent to the Reporter, without any of the papers in the 'case, by Judge Isham, with the suggestion that the same be reported, as it is referred to in the preceding case, Hunter v. Windsor and West Windsor.

Troyer for sbeep and wool. Plea, the general issue and trial by jury. Held: that this makes no difference, as when property is distrained and the owner is compelled to pay money to redeem it. 6 T. R. 298. 1 Swift’s Dig. 538.

<p> Contract under Seal. Condition Precedent. </p> <p>Where the plaintiff contracted under seal to perform certain labor upon defendant’s road, by a specified time, which was subsequently enlarged by parol, it was held, — that plaintiff’s cannot sue in covenant.</p> <p>A contract under seal cannot be varied by a mere parol contract, whether in writing or not, since such á contract is inferior to the original contract.</p> <p>But written contracts not under seal may be varied; then both contracts, being of the same grade, the whole being set forth, and performance alledged, within the enlarged time, assumpsit will lie. So too, when the covenants are independent of each other, one may maintain an action, without avering performance on his part.</p> <p>In a contract under seal, if the defendant hinders the plaintiff from full performance of a ¡condition precedent, or if lie expressly waive it, under his hand and seal, he is estopped from insisting upon the failure of plaintiff in his defense.</p>

[In Chancery.] Appeal prom Chancery. The orator set forth in his bill, that the defendant sued out his writ of attachment against Henry Rice as principal defendant, and summoned the orator as the trustee of said Ricé, which was made returnable before a justice of the peace, on the second Tuesday in April, A. D. 1848, and was duly served upon the said Rice and the orator; that on the return day of said writ, the orator, through forgetfulness, neglected to attend and make his…

Trespass on the Case, for the official default of Lucius Freeman, constable of the town of Barnard, in not keeping certain pearlask, attached by him upon a writ in favor of the plaintiff against Joseph B. Danforth and Moses Montague. Plea, the general issue and trial by jury. On trial, the plaintiff gave in evidence the original writ in his favor, against Danforth and Montague, and the officers return thereon.

Assumpsit upon a promissory note. Plea, the general issue, and trial by jury. On trial, the plaintiff gave in evidence the note declared upon and rested.

Trespass for taking and carrying away hay. Plea, not guilty, and trial by jury. Held: that trespass can be sustained where a person unlawfully exercises an authority over the goods in defiance and to the exclusion of the true owner; no case has ever carried the rule any further. 2 Greenleaf Ev. 621. Hart v. Hyde, 5 Yt. 328. Wilder v. Baker, 1 Met. 27. Phillips v.Hall, 8 Wend. 610. Wintringham v. Lafoy, 7 Cow. 735.

<p>Trust interest. Husband and Wife — her rights as against the Hus-' band, his creditors and assignees.</p> <p>The grantee, in a deed, which is absolute in its terms and contains no recital of a trust interest, is as much chargeable as trustee by the acknowledgement of the trust in an answer to a bill in chancery brought against him, as though the deed contained an express declaration of the trust.</p> <p>Where one buys land in the name of another, and pays the consideration money, the land will generally be held by the grantee in trust for the person, who so pays the consideration.</p> <p>The property of a married woman, whether acquired by gift, devise, or inheritance, before or during coverture, is regarded, in equity, as the property of the wife, and not of the husband, for the purpose of securing to her a provision for her support; and if that right has not been expressly and formally waived or forfeited by misconduct, it will be protected in equity against the husband in any proceedings, which may be adopted at law, or otherwise, for the purpose of reducing it to his possession, and will be equally protected against his assignees, or creditors.</p> <p>The amount embraced within this equity of the wife, rests in the discretion of the court.</p> <p>Where money, to which a married woman was entitled by inheritance from the estate of her father, was in the hands of the administrator at the time of the marriage, and it was agreed between the husband and wife and a third person, that a farm should be purchased, and paid for from such fund, and the deed thereof taken by such third person, to hold in trust for the wife, and this agreement was made and carried into execution, for the purpose of preserving the property, as the separate estate of the wife, and the price of the farm was in part paid by the administrator personally, from money in his hands, and in part paid by money which was delivered to the husband by the administrator, and received by the husband, for the express purpose of being applied towards the purchase of the farm, under the previous arrangement above mentioned; it was held, that a court of equity would protect the whole, as the property of the wife, and that she was to be regarded as the sole cestui que trust under the deed.</p> <p>The mere receiving, by the husband, of the property of the wife, will not be such a reducing of it to his possession, as will affect the wife’s right of survivorship, or equity to a settlement, unless it be received by the husband solely in the exercise of his marital rights, and for the purpose of its appropriation to his own use.</p> <p>Courts of equity for many purposes, treat husband and wife as distinct persons; capable of contracting with each other, and of having separate estates, debts, and interests, and, as a general rule, whenever a contract would bo good at law, when made with trustees for the wife, that contract will be sustained in equity, when made with each other, without the intervention of trustees.</p> <p>A post nuptial agreement between husband and wife, without the intervention of trustees, by which the wife renounces all further claim upon the husband for his services, or support for herself and children, and agrees, that she will contract no debts on his account, and the husband all claim for her services, or support, will be sustained in equity, so far as it has reference to the' property of the wife, not only against the husband and his heirs; but against all others claiming under him, who, at least, were not creditors at the time'the agreement was made.</p>

[In Chancery.] Appeal from the court of chancery. The orators alledged in the hill, in substance, that one Josiah French, deceased in January, 1825, purchased land in Clarendon, of James Winsor, for $3268,00 and secured the same by mortgage on the same land, payable with interest, and interest from the first day of April after date.

<p> Audita querela. Bail. Administrators. </p> <p>When the basis of an audita querela is altogether personal, it ivill die with the person.</p> <p>And. in such a case, the bail upon the recognizance cannot be held.</p> <p>Writs of error and audita querelas, ivben they go to the foundation of the judgment, may he prosecuted by executors and administrators.</p>

Assumpsit for money bad and received. Plea, general issue and set off, and referred by rule of court, to a referee, wbo reported substantially tbe following facts: Tbe plaintiff claims to recover back of tbe defendants certain sums of money paid by bim for taxes assessed upon bis property, according to tbe grand list of said town, which list be alledges to be imperfect and void.

Trespass for taking plaintiff’s mare. Plea, the statute of limitations, general issue and notice of special matter, which was referred, under a rule of court, to a referee, who reported: That the mare was taken by the defendant as collector of a town tax in Braintree, some weeks previous to March 18, 1844, and posted for sale under a warrant for the collection of taxes, but was left in the custody of the plaintiff, until the day of sale, which was March 18, 1844.

Petition for a writ of certiorari. It appeared that the petitioner for-a long time was deprived of the proper exercise of his-mental faculties, by continued, intoxication. The case is fully stated in the opinion of the court, which was delivered at 'the Special Term, September, 1852, at Woodstock.

<p>This was an action on the case. The defendants filed in court the following motion to dismiss. “ And now the defendants come “ and move said cause to be dismissed, because said writ purports to “ have been served by William Barker an indifferent person, and “ by no other person, or officer, and it does not appear that said “ Barker was in anywise authorized to serve said writ, and de- “ fendants have never accepted service of the same. Therefore, “ they p'ray said suit and said writ be dismissed, and for their “ costs.”*</p> <p>This motion was filed within the rule of the county court, for filing pleas in abatement and dilatory pleas. The return upon the writ was signed William Barker, indifferent person. The writ was not directed to him, nor did it appear from the writ, that he was in any way authorized to serve the same.</p> <p>The county court, January term, 1851, overruled said motion, and rendered judgment that the defendants answer over. To which decision of the court, in rendering ’ such judgment, and overruling said motion, the defendants excepted.</p> <p>This method of taking advantage of defects apparent on the record is familiar to our legislation. Comp. Stat., 242, 243, Sect. 5, 10 Se 284, Sect. 1. So in the case at bar, all appears by inspection of the writ. We may as well take advantage of the defect by motion, as of the defect that the true day, month, See., are not noted on the process as was done in Dassance v. Gates, 13 Vt. 275. Hulbellv. Gale, 3 Vt. 266. The statute is, “the writ of “ process may be directed to and served by an indifferent person “ being named.” Why directed to him ? because only by the direction does he get his authority; and only by that can this court recognize his authority to act. Why named ? So that the court on inspection, may see it. No matter who makes the return or signs it, if it be not the person to whom directed and being named, it is no service, it is wholly void. If an authorization is void, if made before the’ writ is filled, certainly a total absence of authority on a filled writ is equally bad. Kelly v. Paris et al., 10 Vt. 261. Dollar v. Hancock, 19 Vt. 388.</p> <p>Generally, if matters of abatement are apparent on the record, the exception may be taken by motion. Wye v. IAscomb, 21 Pick. 263. Guild v. Richardson, 6 Pick. 363. Simonds v. Parker 1 Met. 508. Jacobs v. Millen, 14 Mass. 132. Ames v. Winsor, 19 Pick. 247. Bullard v. Wantucket Bank, 5 Mass. 99. Hawks v. Kenebeck, 7 Mass. 461. Hart v. Fitzgerald, 2 Mass. 209. Wood v. Ross, 11 Mass. 271. Gage v. Gannett, 10 Mass. 176.</p> <p>When there is no legal service of the writ, and the defect is apparent on the record, the court will abate the writ. Carlisle v. Weston, 21 Pick. 535. Tingly v. Bateman, 10 Mass. 350. Lawrence v. Smith, 5 Mass. -3621</p> <p>The motion to dismiss was rightly overruled, because the defect in service, if any, was not apparent of record. Mitchell v. Star-buck, 10 Mass. 6. Gage v. Gannett, 10 Mass. 17 6.</p> <p>Since void, deputation is only matter of abatement, and if not so pleaded, the execution will not be void. Kellogg, ex parte, 6 Vt. 509. The language of the motion is argumentative. Hill v. Powers, 16 Vt. 516.</p> <p>Any irregularity, or defect in service, must be pleaded in abatement. Charlotte v. Webb, 7 Vt. 38.</p>

Trespass for taking a certain mare. Plea general issue, and trial by jury.

<p>[In Chahceby.]</p>

Assumpsit upon a promissory note for $63, executed by Lewis Gilman, the defendant, and made payable to R. McK. Ormsby, the plaintiff, the note was transferred by the plaintiff to one Thomas Murphy, who afterwards sold it to one Alvan Taylor, who is the plaintiff in interest, in the present suit.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows :— The item in controversy is for sixty-two days works of three men and six horses and carts, at $7,50 per day — $465,00.

Indictment, for erecting and continuing a nuisance on a public common in Newbury. Plea, not guilty, and trial by jury. The attorney for the State read in evidence a copy of a quitclaim deed from William B. Bannister to Thomas Johnson, and 32 others, dated May 23, 1801, conveying the premises upon which the alledged nuisance was erected.

Assumpsit upon a promissory note for seventy dollars, dated at Concord, N. H., January 20, 1848, executed by the defendant and made payable to D. G. Fuller, agent, or order, on demand. Said note was indorsed by said Fuller to the plaintiff. Plea non assumpsit and notice of special matter, and trial by the court, January term, 1851.

This was art action of Assumpsit, for the recovery of assessments on two shares of the capital stock of said company, subscribed by the defendant. Plea, non-assumpsit and trial by jury.

This was an action on the case, in which the plaintiff claimed to recover damages, for an injury, alledged to have been occasioned by reason of the defects and insufficiency of the defendants turnpike. Plea, general issue, and trial by jury. On trial, the act incorporating the defendants, and the organization of said company under the same, were proved.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts substantially as follows:— Items 14 and 41, in the defendant’s account, amounting to fifty dollars, are for spirituous liquors, sold by the defendant to the plaintiff within this state, in 1847, and the defendant had no license to sell the same; for the reasons aforesaid, the auditor disallowed the said items.

Trespass on the case, for negligence of the defendants in not ^ maintaining proper fences and cattle guards upon their Railroad, whereby the plaintiff’s, horse came upon the Railroad track… Held: that a trespasser can in no case recover, and that said Railroad corporation are subject to no responsibility, while running their engine and cars on their track, that no protection can be given to man or beast, while upon the track of the railway, against the grossest negligence.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed. The only question arising in this case, was in regard to the admissibility of the deposition, of one William K. Upham, on the hearing before the auditor. The caption to the deposition, described the case as “ to be tried by the county court, at the term “ next to be holden, &c.” The defendant insisted, that the auditor erred in admitting the deposition.

Book Account. Judgment to account was rendered in the county court, and an auditor appointed, who reported: That, it • was admitted that the articles charged were sold and delivered at Stanstead, in Lower Canada, and that the account and credits were correct.

This case having been argued, at the April term, by Mr, Sumner for the plaintiff, and Mr. Oolbg for the defendant, was held under advisement, until the circuit session, at Montpelier, in October, when the opinion, in which the facts sufficiently appear, was delivered by

Book Account. The action was commenced before a justice of the peace, and came to the county court by appeal.

Book Account. The action was commenced before a justice of the peace, and came to the county court by appeal.

This was a complaint for bastardy. Plea not guilty, and trial by jury. Tbe jury returned a verdict that the defendant was guilty.

This was an action to recover the possession of certain premises of tile plaintiff’s, occupied by the defendant, situated in Waterford, as by plaintiff’s declaration, which is as follows:— “ In a plea, that said defendant answer to the complaint of said. “ J. A. Hadley, for that, the defendant is in possession of the lands “ and tenaments of the plaintiff, to wit., being twenty-five acres of “ land, and the dwelling house, and other buildings, all in said “Waterford,…

Trespass for a wagon. Plea, the general issue, and notice that defendants would prove, that defendant Hoffman was a creditor . of one Joel Butterfield, that said wagon was attached and sold as the property of said Butterfield, defendant Fisher acting as officer. Trial by jury.

<p>This was an action on the</p> <p>Case, to recover damages against the defendants, for preventing the plaintiffs from occupying a certain school-house. Plea, general issue, and notice of special matter, and trial by jury.</p> <p>It was admitted on trial, that school district No. 6, in Waterford, was a regularly organized district, and that the' school house in said district, belonged to said district, and that the plaintiffs were all residents and voters in said district. It was also admitted that defendant Stiles, was at the time, the prudential commit ¡ee in said district.</p> <p>The plaintiffs then introduced evidence-tending to prove, that in the month of September, 1848, the plaintiffs employed a teacher, and set up a private school in the school-house in said district, the teacher being a daughter of one of the plaintiffs, and the other plaintiffs sending their children to the school. That before the school commenced, the defendant Stiles was applied to for the key of the school-house, which he declined to furnish.</p> <p>The plaintiffs then procured a key which would open the door, and the school was kept for one or two days, when the defendants went and fastened the door of the school-house, upon the inside; an application was thereupon made to the clerk of the school district, to call a school meeting, and that a school meeting was called and holden on the second day of October, 1848, at which meeting a vote was passed to have a private school in the school-house. The plaintiffs offered the records of the district, of the proceedings of this meeting in evidence, to which defendants objected, as not supporting the plaintiffs’ declaration; but the same were admitted, to which defendants excepted.</p> <p>The plaintiffs then proved, that after said meeting plaintiffs again commenced their school in the school-house, that the same was continued for three days, when the defendants went to the school-house, and removed the stove and pipe, and windows of the house, whereby the house was placed in such condition, that plaintiffs were prevented from continuing their school in the house, and that they were obliged to procure another place for the same.</p> <p>The defendants claimed, that this evidence was not sufficient to entitle plaintiffs to recover, especially in this form of action.</p> <p>But the court instructed the jury, that upon the facts admitted in the case, if the jury found the facts, which plaintiffs’ evidence tended to prove, to be true, the plaintiffs were entitled to recover.</p> <p>The jury returned a verdict for the plaintiffs. To the charge of the court and refusal to charge as requested the defendants excepted.</p> <p>1. The action should be trespass instead of case. The plaintiffs, whether legally or otherwise, had the exclusive possession of the locus in quo, and held, as they alledge, by virtue of a lease from the district. The acts charged to have been committed by defendants, by which the possession of plaintiffs was disturbed, were directly the result of force, hence trespass. How then, since injury to possession is the gist of the action, can case be sustained ? For injuries to the reversion, the landlord must sue in case ; and for injuries to the possession, the‘tenant must sue in trespass.</p> <p>The case of Bakersfield Cong. Soc. v. Barker fy Potter, 15 Vt. 119, relied upon by plaintiffs does not support their position. In that case, the court held the possession to be in a third person, — ■ the Union Society, instead of plaintiffs ; on page 129, Williams, J. says, “the plaintiffs could have sustained trespass, had the Union Society surrendered to them the exclusive possession.” It thus becomes, we think, a conclusive authority for defendants.</p> <p>2. The district records were improperly admitted to prove a lease or dedication of school-house to the plaintiffs. And there is a fatal variance between the declaration and proof.</p> <p>The declaration alledges a lease of the school-house to plaintiffs “on the 2d day of October, 1848, during the remainder of the fall then commenced, or until it should be occupied by the district for a winter school.” The record proves nothing of the kind.</p> <p>8. The district had no power to grant the use of their schoolhouse to the plaintiffs, for the purposes alledged. Existing solely by virtue of the statute, its corporate rights are strictly defined, and are extended to no purpose save that specially contemplated by law, viz. a common school.</p> <p>4. Plaintiffs ave joint tenants in common with defendants, and hence cannot sue each other at common law, excepting actions of account, or where there has been a destruction of company property.</p> <p>5. The suit can be sustained, if at all, only by the district.</p> <p>Defendant Stiles can no more justify, under authority of his office, the act complained of, than any other member of the district. The school-house belonged to the district, as a municipal corporation, having the dominion, direction, subject to the use and enjoyment of the same by its individual members, for the purpose of keeping schools therein, which might be supported by private contribution, or under the authority of the district.</p> <p>The district, therefore, for the removing of the windows by the defendants, and carrying away the furniture, or for any other direct injury to their property, &c., can maintain case only.</p> <p>If these inferences are sound, the school house being unoccupied, the plaintiffs had the right to use it for a subscription or private school, independent of any direction of the district; this disposes of the question of variance. People v. Punhle, 9 Johns. 147. Buhe of Newcastle v. Olarlc, 2 Moore, 666. Bakersfield Cong. Soc. v. Barker et dl., 119.</p>

This was an action on the case, for selling and warranting to plaintiff, a certain horse as sound, hut which was unsound, originally commenced before a justice of the peace, and came to the county court by appeal.

Book Account. Judgment to account was rendered in the county court, and an auditor appointed, who reported the facts substantially as follows:— The defendant, (who owned a woolen factory, in Barnet, Vt.) in the month of November, 1849, through an agent authorized for the. purpose, hired the plaintiff, as a master carder, and one Robertson, as a master spinner, to work in his factory, the plaintiff at $1.25 per day, and the said Robinson at $1.50 per day.

Trespass quare clausum fregit, for breaking and entering the plaintiff’s close, described as number 19, second division, drawn to the original right of John I. Clark, in Brighton, and cutting and carrying away timber therefrom. Plea, general issue, and notice that they would justify under license from plaintiff, and trial by jury.

Scire Facias against the defendants upon recognizance entered into by them, for the faithful performance by the defendant Geo. E. Holmes, of the duties of the office of sheriff of Essex county. The cause of action alledged is, that said defendant Holmes permitted one Freeman B. Peck, (who was committed to jail on mesne process at the suit of the plaintiff,) to escape.

<p>Trespass for two cows. Plea, general issue, and notice that defendant would justify the taking of said cows under legal process, as an authorized officer. Trial by jury, January term of the county court, 1852,— Poland, J., presiding.</p> <p>On trial, plaintiff proved, that defendant took, drove away, and sold the cows sued for, and that the same were the plaintiff’s property, and no question was made by defendant, as to the sufficiency of the proof of the plaintiff, as to the taking by defendant, or of the plaintiff’s title to the cows.</p> <p>The defendant then offered, in evidence, a copy of the record of a judgment recovered by A. H. Bartlett, against the town of East Haven, before Samuel Densmore, justice of the peace, on the 14th day of August, A. D. 1849, and also an execution upon the same judgment, dated the same 14th day of August, and the defendant’s return thereon, and also an authorization of the defendant to serve said execution on the back of the same. '</p> <p>The plaintiff objected to the admission of said papers in evidence, for defects in the authorization thereof, and also, because he claimed the defendant could not be legally authorized to serve an execution against a town.</p> <p>The court overruled said objections, and admitted said papers in evidence. To which decision plaintiff excepted.</p> <p>It was admitted, that the two cows mentioned in defendant’s return on said execution, are the same sued for, and that the taking of the same by defendant was a taking- upon said execution ; also, that plaintiff was an inhabitant of said East Haven, and a tax payer in said town. The plaintiff then introduced evidence tending to prove, that at the time defendant held said execution for collection, he called on Merrit H. Walter, who was treasurer of said town of East Haven, and one of the selectmen of said town, and also upon Mr. Lund, who was likewise one of the selectmen of said town, for the payment of said execution, and asked them what they were going to do about the same, and that said Walter replied, they, as selectmen, should not do anything about it; that defendant then said that he should have to collect it, and Walter replied, that he would have it inch by inch. That when the defendant applied to said Walter and Lund,-as aforesaid, he spoke to them, as selectmen, and that no other demand was ever made on said Walter to pay said execution, than as above stated. The defendant objected to this evidence, but the same was admitted by the court.</p> <p>The court instructed the jpry, that defendant’s return was sufficient prima facie evidence in his favor, that he called on the treasurer for the payment of said execution, before he levied on the plaintiff’s property, but that his return was not conclusive, and might be contradicted by other evidence. That if said Walter was treasurer of the town, and defendant called on him as an officer of the town, to pay said execution for the town, such demand was sufficient to authorize the defendant to levy said execution on plaintiff’s property, if the same was not paid in twelve days after such demand, although the defendant did not especially state to him, that he demanded it of him, as treasurer, but as one of the selectmen. The jury returned a verdict for the defendant.</p> <p>The plaintiff excepted to so much of the charge of the court as is above stated.</p> <p>The statute does not contemplate, that an authorization should be made in a case where a town or a county are a party, for fear that such process would fail of service. That such could be the fact, is an absurdity upon its face, and if such an event could not in reality take place, as a failure of the service of process, by reason of the perpetuity of the corporation, then it should be left to the proper officers of the law to serve it. The town would always be found, and have sufficient funds on which levy might be made, and a certificate of the magistrate, that for want of a proper officer, &c., would be false on its face, and apparent to every one that it was so; therefore, it should not be regarded by courts otherwise than false, and if so viewed, it must here end the case.</p> <p>The next proposition is, that if said authorized person is to be viewed as an officer, the case does not find that he has complied with the requirements of the statute, (Comp. Stat. 473, § 6,) in making demand on the treasurer, without which the levy would be void, and defendant a trespasser.</p> <p>1. The authorization of an officer, is a power delegated specifically to the discretion and determination of the justice, and from his decision there is no appeal.</p> <p>2. This matter is res adjudicata, and having been once judicially passed upon by the magistrate, it cannot afterwards be disturbed., Kellogg, ex parte, 6 Vt. 509. Kelley v. Paris, 10 Vt. 261.. Boss. v. Puller et al., 12 Vt. 265.</p> <p>3. ‘There is no error in the charge. It is settled few-,.thatwile» an officer keeps within the authority given him by virtue- of his office, his official return is prima facie evidence in, his favor of the correctness of the return. Stanton v. Hodges, 6 Vt.. 64.. Hath-way v. Goodrich, 5 Vt. 65. Barrett v. Copeland, 18' Yfc.. 67...</p> <p>The said Walter was treasurer of the town,, and- tile- defendant called upon him as an officer of said town, to. pay the execution for said town; he refused, and this was a sufficient demand, if made twelve days before the levy of the execution. It is made the duty of an officer, having an execution against an individual, to repair to the dwelling house of the debtor before levying the execution; yet if the debtor is not at home, a demand at his dwelling house is sufficient. 3 Yt. 394. 4 Yt. 191.</p>

<p>Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported, substantially as follows:; — ■</p> <p>No item on the debit side of the plaintiffs account, was disputed by the defendant.</p> <p>The defendant offered no account, but urged, in defense,— 1. That the plaintiffs’ whole account had been settled and paid, in a settlement made by the defendant with Lyman Harrington, one of the plaintiffs. 2. The statute of limitations.</p> <p>The auditor found that said account had not been settled and paid, as claimed by the defendant. As to the second ground of defense, the auditor found that the said account is barred by the statute of limitations, unless saved by a credit of “May 3,1842, “ cash, $20,” the writ being dated April 27th, 1848.</p> <p>That as to the said item of credit, there was no testimony to establish it, except the entry upon the plaintiffs’ journal of account, which stands posted upon their ledger, and the testimony of Moses „ Harrington, one, of the plaintiffs. He testified that the entry was in his own hand-writing; that he had no recollection of the payment of the money, or of the fact of making the entry, except that he found such entry upon the journal, but from that circumstance, he had no doubt but the money was paid as credited, and that he should not have made the entry without payment of the money, &c.</p> <p>The auditor found that Ihe entry was made in the hand-writing of the said Moses Harrington, and made at the foot of a page of the journal, under the date of “May 3, 1842,” and was the last item posted upon the ledger. That there was, also, in the handwriting of the said Moses Harrington, a credit to the defendant at the foot of the journal, under date of “April 11,1842, cash, $20.” That this was not posted or post marked; the other entries upon the journal, as far as examined, had a post mark, or mark of payment.</p> <p>That the entries upon'the journal appeared to be made in the regular course of business, the two items of credit above mentioned not excepted, and so of the ledger, excepting the omission to post the credit of “ April 11,1842.” That the books were kept, ■ tmd entiles made generally, by clerks in the store.</p> <p>That in the said journal there were blank spaces, at the foot of many pages, affording sufficient and convenient room for the entry of such credits as those above named. There was no evidence of the payment of the $20, on the 11th day of April, 1842, except the entry upon the journal, as above stated. The auditor allowed the said $20, as a credit to the defendant.</p> <p>That the defendant denied, that he made the payments credited as of April 11, 1842, and May 3, Í842. That it appeared, that on the morning of the second of May, 1842, defendant left Manchester, where both parties then resided, and went- to Benson, a distance of about fifty miles, and did not return again to Manchester until Thursday, the fifth day of May, and did not meet either of the plaintiffs during that time.</p> <p>The county court, June term, 1851,— Pierfoint, J., presiding, rendered judgment, upon the report, for the plaintiffs. Exceptions by defendant.</p> <p>The debit side of the plaintiffs account is, upon its face, barred by the statute of limitations.</p> <p>If saved from the statute, it is so only by force of the credit of May 3, 1842. The onus of establishing this credit, lays upon the plaintiffs, for,— 1. The credit was the plaintiffs act. 2. The defendant, upon his oath, denied the payment.</p> <p>To meet the objection of the statute, it was necessary for the plaintiffs to have proved not only the fact of a payment of $20, at some time, but that such payment was made after April 27,1842. The auditor has found the fact of payment, and that such payment was made not after the morning of May 2, 1842, but “just before,” and within six years, &c.,— i. e. on one of the three last days of April, the 1st day of May, or at peep of dawn of the 2d day of May, 1842.</p> <p>Was the auditor warranted in so finding?</p> <p>1. There was no evidence, aside from the book, of the fact of payment, or of the date óf the making of the entry.</p> <p>2. The report falsifies the book as to the date of the payment; and being so falsified, the conclusion of the auditor is but a guess, as to the true date, without any legal evidence thereof.</p> <p>3. The book was suspicious in appearance,'— the two entries of April 11, 1842, and May 3, 1842, each for “cash, $20,” and each at the foot of a page of the journal, the journal affording occasional blanks at the foot of pages, convenient for such entries,— the first credit not posted, and the entry accounted for by its necessity to save the first suit,— the last entry, whether as a duplicate of the first, or as an independent item, accounted for by its necessity to save the last suit.</p> <p>A book, so suspicious in appearance, so falsified by the proof, so wholly unsupported by other evidence, but flatly contradicted, is not competent evidence of payment, or timé of payment. 1 Cow. & Hills’ Notes 682-3, 695, 698-9. Swift’s Ev. 81, 2, 4. Eastman v. Moulton, 3 N. H. 156.</p> <p>But if the book was evidence of payment of $20, at some time, the date of the credit being falsified by the proof, there was no evidence of the true date, so that the finding of the auditor was but a guess, warranted by no evidence. Cawley v. Funell et al., 6 Eng. Rep. 397.</p> <p>Again, there was no evidence showing at what time the entry was made. It might as well have been made at one túne as another ; and so does not appear to have been an entry against the plaintiffs’ interest to make, but the contrary, and so is not evidence per se. 1 Cow. & Hills’ Notes 154. Whitney v. Bigelow, 4 Pick. 110. Baseboom r. Billington, 17 John?. 182. Bose v. Bryant, 2 Camp. 321. Phil. Ev. 117.</p> <p>It is a well established principle of law, that in mutual accounts •each new item of credit takes the whole account out of the statute. Abbot v. Keith, 11 Yt. 525.</p> <p>In the present case, the auditor finds the fact, that within six years next preceding the commencement of this suit, the defendant paid on this account, the sum of $20, and that the account is not barred by the statute of limitations. This fact, found by the auditor from evidence, is not to be revised by this, or any other tribunal. Kent v. Hancock, 13 Yt. 514.</p> <p>If an auditor decides a question of fact, and it appears from his report, that there was testimony tending to prove the fact as found, his decision is conclusive. Hodges v. Hasford, 17 Vt. 615. Cot-trill v.' Vanduzen et al., 22 Yt. 514.</p> <p>It was competent for the plaintiffs to testify to the fact of a payment, made within six years, by the defendant, and this fact found by his testimony, he may have the benefit of, to avoid the statute of limitations. Sargeant v. Sunderland, 21 Yt. 284. Hap-good v. Southgate, 21 Yt. 584.</p>

<p> Deeds. Parol license. Go-tenants. Statute of limitations. Grantor and grantee. </p> <p>The registry of a defective deed is constructive notice to no one.</p> <p>Where one, in faith of a license, enters and occupies for more than fifteen years, as his own, this will give him an equity against the whole world, to be reimburs- ■ ed for the value of his erections, to the person taking them, before he could be deprived of them.</p> <p>Possessions taken under a license to occupy permanently, either absolutely, or upon certain conditions, gives, in equity, a title to the premises, according to the terms of the license.</p> <p>And the party being in possession under the license, is notice to a subsequent purchaser, or incumbrancer of whatever title, the one in possession may have, whether legal or equitable.</p> <p>The going into possession of land, under a parol gift, and remaining quietly in possession for fifteen years, gives good title, by the mere acquiescence of the donor or owner, whoever he may be.</p> <p>A partition between co-tenants, made and acquiesced in for more than fifteen years, becomes absolutely perfect at law, and if it were not so, a court of equity would decree its perfection.</p> <p>Any title subsequently acquired, by the grantor, who conveys by warranty, will inure to the benefit of the grantee. But grants made by the grantor, or conditions, or limitations, or estoppels subsequently attempted to be annexed to the estate, will not affect his grantee.</p>

<p> Mortgage. Foreclosure. </p> <p>A mortgagee may legally hold two mortgages, on different pieces of land, for the security of the same debt, and may foreclose his mortgage on one piece, without the other; and whether a foreclosure on one, will bar a foreclosure on the other, depends upon the value of the premises foreclosed.</p> <p>If the land foreclosed is equal in value to the debt, the debt is thereby paid, and the remaining premises are relieved from any further claim as security.</p>

<p>Action on the case, for-the default of the defendant Edgerton, as town clerk of the former town of Windsor, now Windsor and West Windsor. The declaration is in four counts. In each, the following facts arc alledged, viz.: That defendant Edgerton, from March, 1835, to March, 1841, was legally chosen and officiated as town clerk of the then town of Windsor, (now Windsor and West Windsor.) That June 10, 1835, he, with his wife, executed a mortgage of certain lands in Windsor, to George and Edward Curtis, conditioned to secure his note to them bearing date the first of May, previous. That said mortgage was lodged with him for record, and was by him, as town clerk, recorded, without making any index or reference to the record, and none existed as long as he continued to be town clerk.</p> <p>That afterwards, on the 4th day of February, 1839, well knowing that said incumbrance still existed in fact and upon the record, and that there was no such index or reference, and that plaintiff had no knowledge of said incumbrance, but fully believed there was none, sold to the plaintiff, and received pay for the same to the full value of the lands purchased, and by deed of himself and wife, granted and conveyed the same to plaintiff, as being free and clear (as specified in said deed) from all incumbrance, except a certain lease then held by Dunbar & White; and the plaintiff’s said deed was duly recorded the 7th day of the same month.</p> <p>That the plaintiff, at the time of such purchase, did not know of such incumbrance, and never’ learned of its existence until the bill was served upon him in favor of said George and Edward Curtis, brought to foreclose their mortgage, in October, 1845, at which time said Edgerton had become and has ever since remained wholly insolvent; and that the plaintiff would not have made said purchase, had he known of said incumbrance.</p> <p>That said George and Edward Curtis pursued their said bill, and in May, 1849, obtained a final decree against plaintiff and others, and that plaintiff has had to pay a large sum to redeem his lands from said incumbrance. That he has thereby suffered damages, &c.</p> <p>The allegations of Edgerton’s duty, as town clerk, and of breaches in the first and second counts, are, in substance, as follows: — ■</p> <p>1st Count. Duty: (1.) To have made and kept open to inspection, such an index or reference to the record of the mortgage: .(2.) Or to have disclosed the existence of the incumbrance to plaintiff, at the time of his purchase.</p> <p>Breach, That he did neither.</p> <p>2d Count. Duty: (1.) To have made and kept, such an index or reference : (2.) And, at the time of negotiating said trade with plaintiff, on proper request, to have shown to plaintiff the record of the mortgage: (3.) Or, upon inquiry relative to incumbrances, made by plaintiff, of said Edgerton, at tlje time of negotiating the trade, to have in some way disclosed to the plaintiff, the fact of the incumbrance.</p> <p>Breaches. (1.) That he made and kept no index, &c. (2.) That, although said Edgerton was inquired of by plaintiff, whether there was any incumbrance of record, at the time of negotiating; and at same time plaintiff requested him, if there was any such record of incumbrance, to show plaintiff the record; yet said Edgerton did not show the record, or disclose the fact' of the incumbrance.</p> <p>General demurrer to the declaration. The county court, May term, 1851,— Pierpoint, J., presiding, upon said demurrer, rendered judgment that the declaration is insufficient by reason of the misjoinder of said Edgerton, as party defendant, with said towns. Exceptions by plaintiff.</p> <p>1. The plaintiff insists there was no misjoinder. If a suit would lie against either defendant, if sued alone,” it can be sustained against them jointly.</p> <p>Towns are made liable for the neglects or defaults of their town clerks, &c. Slade’s Ed. Stat. 420, § 2. Revi. Stat. 89, § 27.</p> <p>That a suit could be sustained aginst either the town or the clerk, will not be denied.</p> <p>If against either, then surely against both, separately, at the same time.</p> <p>If against both, separately, then why not against them jointly ?</p> <p>The very evidence which would make one liable, would make the other also. What would excuse one, would excuse the other also.</p> <p>The same allegations necessary to raise the liability of one, would make the other liable also.</p> <p>Their liability is inseparable.</p> <p>There are cases, when it is said the master and servant cannot be joined. But in such cases, the master is either not liable at all, or in a different form of action from what is applicable to the servant. If the master directs or encourages the servant to commit an act of trespass, or assents to it, they are both liable in trespass, and may be joined.</p> <p>Now if the master and servant do any act, or are guilty of neglect, which would make them liable in case, is there any less reason for joining them ?</p> <p>The true rule seems to be, where the same form of action, sustained by the same proof, will lie against two or more, they may be joined as defendants.</p> <p>In Wright v. Wilcox, 19 Wend. 345, Co wen, J., says, “ Wheth- “ er the principal and inferior may be charged jointly, depends “ on a trespasser vi et armis, or in case only. If the latter, they “ may be sued jointly,” &c.</p> <p>The same rule is laid down in Hammond on Parties, 95, 96 and 97. Also in Brown v. Lent, 20 Vt. 529, see opinion by Davis, J., p. 531.</p> <p>In Moreton v. Harden et al., 10 C. L. R. 316, where one of the proprietors of a stage coach was driving, and ran against plaintiff’s cart, it was held, that an action on the case for negligence would lie against all three. It being objected that trespass was the proper action against the driver, Bailey, J., said, “ It is a suffi- “ cient answer to say, that the plaintiff had a right to sue all the “ defendants, and that trespass clearly could not lie against them “ all; such action might perhaps be maintained against the driver, but not against the other defendants.” 6 D. & R. 275.</p> <p>In Wilson v. Beto fy Hunter, 17 C. L. R. 13, which was a case for obstructing lights. Hunter was clerk for Peto in erecting the buildings. Hunter complained, and claimed that he ought not to be joined; but the court held them properly joined, as the clerk was present and superintended the work.</p> <p>There are cases where either tresspass or case will lie. Waterman v. Hall et cd., 17 Yt. 128. And where there may be such choice of actions against some, and only case against others, they may all be joined in case. Williams v. Holland, 25 C. L. R. 50. 25 C. L. R. 261, same case.</p> <p>2. The declaration is in other respects- sufficient. It was the duty of the town clerk to disclose the true state of the title to the premises.</p> <p>1. The declaration is defective, upon demurrer, for the misjoinder of defendants. The action is brought against the town and the town clerk jointly, but if they are each liable, it is for causes of action distinct in their nature, and not for a joint tort. The town clerk is liable, if at all, at common law, for the wilful fraud alledged in the declaration; or, under the statute of 1797, for his neglect of duty. But the town is liable solely by virtue of the statute of 1816, which imposes upon them a liability to make good the damages occasioned by the default of the town clerk. The town have committed no tort, and they are only liable to be sued in case, because that form of action is prescribed by the statute. The town clerk is charged with a wilful tort. Even in the case of master and servant, the master cannot be joined as defendant, for a wilful trespass committed by the servant, and it can make no difference, that the offence is a non-feazance, if the omission be charged as wilful, and with malicious intent, on the part of the servant. As against the town, a further allegation is required than against the town clerk, to wit, that the town is by law responsible for the default of the town clerk. The act of the town clerk is not the act of the town, as in case of master and servant, but the town is liable to “make good the damages” occasioned by the act.</p> <p>Previous to the statute of 1816, no action could have been sustained against the town, and, of course, the town and town clerk could not have been joined. The statute of 1816 has not changed the rule in this respect, and the defect being apparent upon the face of the declaration, it is fatal upon general demurrer. 1 Chit. PI. 72, 74. Campbell v. Phelps, 1 Pick. 62, 16 Yt. 608.</p> <p>2. The declaration is defective, as against the towns, in omitting to aver that the plaintiff made any examination for the purpose of ascertaining whether the mortgage deed was indexed or not.</p> <p>The action is ease, brought to recover the damages sustained by the plaintiff by reason of the misconduct of the town clerk. It is essential that the damages should have been occasioned by such misconduct ; if not so occasioned, the plaintiff cannot complain of the misconduct.</p> <p>The misconduct alledged was not official, and does not render the town liable. The plaintiff relied solely upon the personal assurance and good faith of Edgerton, and in no respect upon his official position. The inquiries were not made of Edgerton, because he was then town clerk, nor did his then holding the office enable him more satisfactorily to answer them. The answer would have been the same, and the effect the same, if he had ceased to be town clerk in March, 1836. This deprives the plaintiff of all pretence for saying, that the misconduct was official.</p> <p>3. The omission to index the mortgage, was not the neglect of a duty, on the part of the town clerk, for which the town is responsible.</p> <p>It was the duty of the town clerk truly to record the mortgage. SI. Stat. 415, § 20. And it has been decided by this court, in the ■ case of Curtis v. Lyman, that this requirement was complied with,— that the deed was truly recorded.</p>

<p> Deeds. Town Clerk. Certificate. Tenants in common. Severally. Possession. Parol. Jury. </p> <p>It is the duty of a town clerk to certify a copy of the record, and if he certifies the copy to be If a true record of the deed, recorded in his office,” it appearing from the copy that such a record existed in the office, it will be intended that the clerk certified from the record. ■'</p> <p>The deeding of a given number of acres to one man, and another number to another, thus conveying the whole right to both, there being nothing to show that the land was intended to be conveyed in severalty, will create a tenancy in common, and they will hold in common, in the proportion of the number of acres specified in their deeds.</p> <p>And even if the deeds showed that A.’s right lay in severalty, and the other owner, B. , did not object to A.’s acts of possession, G., a mere stranger, could not, and C. ’s intrusion might justly be regarded as a violation of A.’s possession.</p> <p>So, too, A.’s contract to purchase the right of B., would enable A. to refer his acts upon the land to B.’s deed, in order to determine whether they were to be regarded as possessory, or mere torts; it has often been so decided, where the license to enter was in writing, and the same results would follow when the contract is not in writing.</p> <p>When the deed describes the land, sis being within the original charter limits of a town, we are to look to the charter for the right, and then to the right for its severance, and there identify the subject matter. This may always be done by parol, and it is not affected by a change of the name of the town, or setting a portion of it to smother town.</p> <p>When there are facts important tobe considered in giving a construction to a deed, and those facts are in dispute, it may properly be submitted to the jury, under a hypothetical charge of the court.</p>

<p>Appeal from the court of chancery. The facts sufficiently appear in the opinion of the court.</p>

<p>This was an action of</p> <p>Assumpsit. Plea, the general issue, and trial by the court.</p> <p>On trial, the plaintiff gave evidence tending to prove, that on the 11th day of July, 1851, he contracted with the defendant, for a lease of the defendant’s tavern stand in Waterbury, (called the Waterbury House,) for one year from and after the first day of September, 1851, for six hundred dollars; and paid the defendant at the time one hundred dollars, in a gold watch, which defendant received as a payment of one hundred dollars towards the rent. And it was further stipulated at the time, that the parties should meet at Mr. Dillingham’s office as soon as he returned home, (he being absent that day,) and execute a written lease. The contract was all in parol. The plaintiff called upon the defendant for the lease, and the defendant soon after, on the same day, tendered the watch back to the plaintiff, which the plaintiff' refused to receive, and the watch was afterwards attached by one of the plaintiff’s creditors, and sold on execution against the plaintiff. ‡</p> <p>The defendant, on the 14th day of July, 1851, leased the same premises to one Howard for one year, and declined to lease them to the plaintiff. The plaintiff tendered to the defendant, on the first day of September, 1851, five hundred dollars in specie, and demanded a lease of the premises, according to the contract, which defendant declined.</p> <p>The county court, March term, in Washington county, 1852, Poland, J., presiding,— adjudged that plaintiff could not recover, and rendered judgment for defendant. Exceptions by plaintiff.</p> <p>1. A parol lease, for one year only, is not within the statute of frauds. Comp. Stat. 384 § 7.</p> <p>2. The payment of a part of the rent, in advance, was a part performance and takes the case out of the statute. Stev. N. P. 2 Yol. 1955.</p> <p>3. But if an agreement to rent the premises for one year be within the statute, an agreement to meet the plaintiff at Mr. Dillingham’s office, and there execute a valid lease, is not within the statute. Squire v. Whipple, 1 Vt. 69.</p> <p>4. The defendant having leased the premises to another, and refused to perform the contract is liable to refund the consideration paid. Chitty on Con. 307-8. Kidder- v. Hunt, 18 Mass. 328. Sherburne v. Fuller, 5 Mass. 133. Lane v. Shaekford, 5 N. H. 130. Shaw v. Shaw, 6 Vt. 69.</p> <p>1. The subject matter of the agreement partakes of the realty and creates an interest therein. Any agreement, creating an exclusive right to land for a limited time, is within the statute of frauds, (4th Sec.) and void. Comp. Stat. Chap. 64. 6 East 612. Hall v. Chaffee, 13 Vt. 150. Hibbard etux. v. Whitney, 13 Vt. 21.</p> <p>Part performance will never enable a party to sustain an action at law. 13 Vt. 21.</p> <p>2. Ind. assumpsit will not lie for the consideration paid, without a previous offer ,to rescind and a demand of the sum paid. Warner v. Wheeler, 1 D. Chip. 159. In no case will a contract be rescinded in toto unless both parties be placed in the identical situation which they occupied, this the defendant offered to do by returning the property received, and the plaintiff refused to rescind. He is not precluded from recovering the value when at the same time he sets up the contract as in force. Chitty on Con. 741-2 and notes.</p>

Book Account. Judgment to account was rendered in the county court, and auditors appointed, who reported in reference to the item in dispute, substantially the following facts:— The plaintiff, after having had some conversation with the president of the Railroad, and with the chief engineer, in relation to doing work upon section 3, of defendants road, submitted to the President á written proposition, of which the following is a copy:— “Charles Paine, Esq., “ Sir : “ Having…

Book Account. The case was recommitted to the auditor, by this court, at a former term, for a more particular statement of facts, who reported, substantially, the following facts:— The plaintiffs were, during the year 1845, and ever since that time have been, commission merchants in Boston, Massachusetts. That the defendant, during the time aforesaid, resided in Charlotte, Vermont, and was engaged in mercantile business.

<p>Statute of limitations. The act of 1797 and 1832, considered. Evidence.</p> <p>A claim that arose under the statute of limitations passed in 1197, but not being barred, before the passage of the act of 1882, is, in terms, controlled by that act, after it took effect.</p> <p>And it was held, that the distinction between the act of 1191 and 1832, is, in fact, this,— that in the former, if the statute began to run, it continued to run, while under the latter, the debtor must either remain in the State, or leave sufficient known property here, out of which his debt could be satisfied, or else the statute would not produce a bar.</p> <p>And this property must be estate real or personal, unembarrassed, and which is liable to be levied upon for the satisfaction of the debt; and this estate should so continue, during the whole period of the debtor’s^absence from the State, in order to continue the operation of the statute, or the statute of limitations would cease to run.</p> <p>Probate proceedings, where the title of land pomes in question, are required by statute to be recorded in the town clerk’s oflice, as much as in the probate office, and unless so recorded they are not admissible as evidence of title.</p>

In the county court the appellee moved to dismiss said appeal, on the ground that said court has no appellate jurisdiction of the case. The county court sustained the motion and dismissed the appeal. Exceptions by appellant.

<p>Assumpsit on a promissory note for $1,371,38, brought against the defendants as indorsors thereof. Plea, the general issue and trial by the court.</p> <p>No question was made as to the signatures of the parties ; and it was admitted that the defendants were partners at the date of the note, and from thence, up to the time of trial.</p> <p>The plaintiff introduced the note, which was payable in “ six months from date, at Orwell, Vermont;” and also offered in evidence the protest annexed to the said note. The defendants objected to the admission of the protest as evidence, and also to the certificate of the notary relating to the notice to the defendants, even if the protest should be admitted. The court overruled the objection and admitted the protest, with the certificate of notice, (signed) “ William B. Martin, Notary Public,” as evidence tending to prove the demand of payment, and notice to the defendants of non-payment.</p> <p>It appeared that said William B. Martin was, at the date of said protest, a notary public residing in said Orwell, but had since deceased. The plaintiff also offered the memorandum on the back of said note, which was in the words following“ January 8, 1849, mailed notices to the indorsors as follows, to JohnB. Anger, Agent, Brooklyn, N. Y., and Wilson & Calkins, Ticonderoga, N. Y.”</p> <p>(Signed) “ W. B. Martin, JSf. P.”</p> <p>Also with proof that it was the hand writing of said Martin, accompanied with evidence tending to show that it was the custom of said Martin, when he demanded payment of a note and notified the indorsors, to make such memorandum of the fact on the back of the note at the time, and to fill up, in the course of a few days, the protest in form, (as said protest is filled up,) certifying that he had notified the indorsors in the body of the protest, and that said Martin was not accustomed to make any other record of the fact of demand and notice. To all which the defendants objected. The court overruled the objection, and admitted the evidence.</p> <p>The plaintiffs also offered in evidence, the post-office books of the Orwell post-office, with the testimony of the person who made the entries therein, and of the post-master of Orwell, in January, 1849, whose testimony tended to prove that said books were regularly kept, and presented a true account of the letters mailed at the Orwell post-office in January, 1849 ; said books show an entry of four letters mailed for Ticonderoga, N. Y., on the 8th day of January, 1849, and that none were mailed for said place, after that date, until the 12th of January, 1849. The witness had no recollection of mailing the letters appearing upon the books. It also appeared by said books, that there was one letter mailed at said office for Brooklyn, N. Y., on the 8th day of January, 1849, and there was no entry of any letter mailed for said Brooklyn, after that date during said month of January. The post-master also testified, that at the time the note fell due, and before and after, the mail was carried from said Orwell to Ticonderoga, on Monday, Wednesday and Friday of each week, and no other days, that letters deposited in said office for said Ticonderoga as early as ten o’clock, A. M. on mail days, were sent the same day, but if deposited after that hour, would go in the next mail, according to the usage and custom of the office at Orwell. The defendants objected to the admission of the post-office books, and also to the testimony of the post-master and his clerk, but the court overruled the objection and admitted the books and testimony.</p> <p>It appeared, that at the time the note fell due, and for a longtime before, and ever since, the plaintiff resided in Orwell, and that the defendants lived in Ticonderoga, N. Y. It also appeared that Knowles Taylor, the maker of the note, never resided in Orwell, but that he lived in New York at the time the note fell due, and resided there before and since.</p> <p>The signature of the said Martin to the protest, certificate and memorandum on the back of said note was proved.</p> <p>The plaintiff also introduced evidence, under objection, tending to prove that the Farmers’ Bank, of Orwell, was the principal place of business of the plaintiff, although he occupied a dwelling-house at Orwell, where he transacted a portion of his business. There was no evidence that he kept an office at the Bank, or occupied any apartment for his private business, separate from the business of the Bank. The plaintiff also offered and read in evidence, three letters from the defendants, with proof that they were in the hand writing of one of the defendants ; said letters were dated on the 26th of March, and the 7th and 18th of July, 1849. The plaintiff claimed, that sufficient appeared in said letters to warrant the presumption, that defendants had received notice, or to operate as a waiver of notice. The said letters admitted the liability of defendants as indorsors, and asked for indulgence until they could collect of the parties primarily liable, without questioning the regularity of notice. It also appeared that plaintiff had notified defendants, at the previous term of the court, to produce the notice of demand and non-payment, but defendants neglected to produce said notice.</p> <p>The defendants insisted, that the evidence in the case was insufficient to entitle the plaintiff to recover. The court rendered judgment for the plaintiff for the amount of the note and interest. To all which decisions and ruling of the court, defendants excepted.</p>

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported a bal-> anee due from defendant to plaintiffs of $26.82, to balance book accounts between them. Before judgment upon the report, defendant filed his plea in offset, — issue joined, on said plea, trial had, issue found for plaintiffs on said plea. Defendant moved for leave to enter a review on said plea in offset, which motion was overruled by the county court.

<p>[In Chancery.]</p> <p>Appeal from tbe court of chancery. The orator alledges in his hill, that the orator’s father deceased in 1846, and orator became administrator, and on the 5th day of Ootober, 1846, gave bonds in the sum of $20,000 for faithful administration, with sureties.</p> <p>Commissioners appointed, and they, on the 26th day of June, 1847, made report, and among other claims one of $1,000 in favor of defendants, being for ten shares of said corporation stock. And at the time orator did not deem it to be his duty to appeal, and the time of appeal expired, and since that the defendants have commenced a suit upon the bond, to recover this allowance. And said action is entered in the county court by defendants.</p> <p>Bill also sets forth, the number of heirs and the representatives of such as have deceased. The heirs insisted the $1,000 should be distributed, and that the allowance was made by fraud, and that legal proceedings would he obtained for that purpose. And that they did, on the 8th of January, 1848, petition to be allowed an appeal from the allowance,— on the ground of fraud, accident, or mistake, and that is still pending, that the heirs still persist in their claim and the defendants in theirs, and that orator is ready to pay it to whomsoever is entitled.</p> <p>Prays the parties may interplead, and the orator may be allowed to deposit it in court to be disposed of as the judgment of the court may direct. Praying, also, an injunction.</p> <p>The defendants filed a general demurrer to the bill.</p> <p>The chancellor sustained the demurrer, and decreed that the bill be dismissed, from which decree orator appealed.</p>

<p>Assumpsit on a promissory note for $467, dated at Eutland, on the 15th day of April, A. D. 1850; and made payable in three months from date at the bank of-Eutland, and subscribed with the partnership name of Strong, Chamberlain & Co. ¡</p> <p>' Upon the trial of this case, the defendants proved that they had entered into a partnership for the purpose of performing work on the Eutland and Burlington Eailroad, some time in 1847; that James Worrall, who had been actively engaged in the business of said company at Ludlow, in the county of Windsor, on the 3d day of August, 1848, executed and delivered a release to the other members of said company, of the following tenor:—</p> <p>“ Know all men by these presents, that I, James Worrall, of “ Ludlow, one of the partners of the firm of Strong, Chamberlain “ & Co., in consideration of one dollar, received to my full satis- “ faction of Timothy F. Strong, John Bradley, Selah Chamberlain, “Joseph Chamberlain, Stephen C. Walker, and George W. Strong, “ hereby release, relinquish, and quit-claim unto Timothy F. Strong, “ John Bradley, Selah Chamberlain, Joseph Chamberlain, Stephen “ C. Walker, and George W. Strong, all my right and interest as “ one of the partners in the firm of Strong, Chamberlain & Co., “ in all the contracts and claim of said company for work on the “ Eutland and Burlington Eailroad, as well for the work done, as “ for the work to be done, by said company.”</p> <p>It appeared, that immediately after the execution and delivery of this release by said Worrall, that he ceased to manage the business of said company, and left the State. It also appeared, that the said writ was served only on the said George W. Strong, Timothy F. Strong, and John Bradley, and that the other defendants had no notice of the pendency of the said suit.</p> <p>It did not appear that the plaintiff had ever had any previous dealings with the defendants, except those counted upon in this action. It was admitted that defendants were partners from some time in 1847, down to the time said Worrall executed his release, on the 3d of August, 1848, under the name and firm of Strong, Chamberlain & Co., and no question was made on the trial as to the liability of all the defendants upon the note, except what arose from the execution of said release by Worrall and his leaving the business, as before stated. The business was continued under the same partnership name. There was no evidence tending to show that defendants, or either of them, had given any notice by publication or otherwise, that Worrall had parted with his interest in the firm, or that the partnership had been dissolved; and it was treated by the defendants as a conceded point that the plaintiff ought to recover the amount due upon the note, provided Worrall continued to be liable as a partner after the 3d of August, 1848.</p> <p>The county court rendered judgment for the plaintiff to recover the amount of said note against all the defendants. Exceptions by defendants.</p>

This was a petition for a road. The first committee appointed, made examination and were nearly ready to report, when one of the number died. It thus became necessary to have some one appointed in his place, and a new examination, and the costs were thereby increased very considerably. It was objected, that this increased expense should not be taxed against the towns, where the road was laid.

In the argument of this case, a question was made, how far it^ was competent for this court, in a case standing upon pleadings and demurrers, to revise any decision of the county court, except the very point upon which the case was made to turn in that court.

In the course of reading the papers, in this case, a question was stated to the court, how far it was necessary, in this court, for either party to state objections to testimony, in the course of the reading.

<p> Practice. </p> <p>The party who merely refers to oases, in his opening argument, without reading, is understood to acquiesce in such authorities not being read; and unless they are read by the opposite side, he is not strictly entitled to take them up again.</p> <p>In the argument of this case, the counsel, in the closing argument, offered to read authorities, which had been referred to, but not read, in the opening argument.</p>

In this case the verdict in the county court was for plaintiff, and the defendant claimed review, which was allowed and exceptions by the plaintiff, and now the parties wished to have judgment entered up, upon the verdict, which the court allowed, and ordered the amount certified to the probate court. A question was made in regard to allowing costs.

<p> Practice. </p> <p>In the case of a petition for divorce, the testimony of neither party is admissible on the main issue.</p> <p>Nor is the wife a competent witness, under the act of 1852, for or against her husband, in any civil suit or proceeding.</p>

<p> Practice. </p> <p>Where there was an appeal, under the statute of 1852, from a decree of the chancellor dissolving an injunction, and the plaintiffs objected, that the notice, being merely from the counsel, and not from any order of the court, was insufficient; it was held, that the notice was sufficient.</p> <p>The act of 1852 provides, that the appeal “ shall be heard, on the application of “ either party, at the next session of said court sitting in any county in the State, “ either in regular or circuit session.” Held, — this, in terms, contemplates the next session after the appeal, if there is time to -give notice in season for the hearing at that term, and if not, at the next session, at which such notice can be given.</p> <p>And when a case is brought into such term, it properly belongs to the docket of that county, and must be disposed of, the same as the other business of the term, at the regular term, if the time is sufficient, and if not, at the circuit session for that circuit.</p>

This was an action of book account, which came into this court upon exceptions to the judgment of the county court for the defendant. In this court, the plaintiff moved to have the case recommitted to the auditor for further hearing and additional report, founded upon the alledged new discovery of evidence of a material and decisive character.

This was an appeal from the decree of the chancellor, dissolving an injunction. The parties had filed additional testimony, by way of affidavits, in this court. A question was made whether it could be read.

A question was made whether this case was properly in this court, it having been brought into this court, standing upon issues of law, on demurrer, and the judgment of the county court being reversed, and a repleader awarded on terms, which had never resulted in any issue of fact.

This was a petition, in the name of the town agent of East Haven, alledging that the defendant and certain others, had usurped the town offices, and having made a partition of them among themselves,… Held: at which defendant Belding was elected clerk, and others to fill the other offices. Belding sued out a writ of replevin, and obtained the possession of the town books, and other fixtures of the town clerk’s office.

<p> Contract. Performance. Payment, Sfc. </p> <p>Where the plaintiffs contracted with the defendants, in writing, to bnild certain bridges on defendants’ road, at a certain sum per foot, to be paid one-fourth in cash, and three-fourths in stock of the road at par value, and the contract was entirely silent as to the time or place of payment, it was held, that looking to that alone, the plaintiffs could not call for payment, either of the cash or stock, until a complete performance of the contract on their part, or at any rate before or any oftener than a bridge was fully complete; nor could they then sue and recover for the stock without proof of a special request and a refusal to deliver it. For if no time be fixed in the contract, or by other agreement of the parties, either express or implied, for the doing of the thing, a request is essential to the cause of action.</p> <p>The defendants after the commencement of the suit mortgaged their road to secure the payment of debts due from them to third persons; it was held, that the act of mortgaging the road would not work or amount to a disability to perform the contract, or make the defendants liable to pay money in lieu of stock.</p> <p>Where it appeared, that the defendants were in the custom of making monthly payments to their contractors, for work done on their road, upon estimates made by the engineer at the end of each month, and that usage or custom having been adopted with the plaintiffs, it was held, that this must be considered the rule of payment under the contract, established by mutual consent, and binding upon the parties.</p> <p>After the making of the original contract, the plaintiffs proposed to put in iron bearings instead of wood, for so much per foot of the bridges, varying like the prices in the original contract, according to the different spans of the bridges, “ in addition,” as they say, “ to the former proposal,” thus leaving the mode of payment unchanged, held, that it might well be inferred that the mode of paying for the iron bearings was to be the same as that provided for building the bridges.</p>

An injunction having been granted pursuant to the bilU filed ¡against .the defendant, the plaintiffs afterwards appeared in court, •.and moved for an attachment against him for a breach of the injunction. An order to show cause against the motion was thereupon issued and served upon the defendant; and his affidavit in answer thereto being filed, the matter came on to be heard upon affidavits and exhibits.