Volume 25 — Vermont Reports

Assumpsit for work and labor done, &c. Plea the general issue and trial by jury. The defendants also plead, in abatement, the pendency of another suit for the same cause of action. The plaintiff, in his replication, denied that the suit was for the same cause, and concluded with issue to the country. To which defendants demurred.

The case was referred to a commissioner, who reported the facts substantially as follows: That it was agreed by the parties, that the administrator should, in his account, be charged with the items with which he had charged himself, in the account rendered by him in the probate court for the district of Rutland, amounting to the sum of $167,75; and should be credited with the items which he credited himself in the same account, also amounting to the sum of $167,75.

At the opening of the Court, Levi Underwood, Esq., the State’s Attorney for the county of Chittenden, announced the death of the Hon. C. P. Yanness, for many years, a distinguished member of this bar, Chief Justice of the Supreme Court, and Governor of the State, and Minister froni the United States to the Court of Madrid, and moved, that in consideration thereof and out of respect to the memory of the deceased, the court suspend business for the day, and do now adjourn.

Trespass on the Case. This was an action against the defendants, as listers for the town of Williston, for the year 1847. Plea, general issue, and trial by jury. The declaration is sufficiently set forth in the opinion of the court., On trial, it was admitted by the defendants, that they were listers of the town of Williston, for the year 1847.

22, 1845. “ One year from date, for value received, we jointly and sever- “ ally promise to pay John A. Place, or order, eight hundred dol- “ lars, with interest annually.”… Held: that such agreement for extension would not, under the circumstances, discharge Dorwin. The court directed a verdict for the plaintiff, for the amount of the note and interest, deducting the $24 paid as extra, when plaintiff took the note. To all which decisions and ruling, the defendant excepted.

Book Account. Judgment to account, and an auditor was appointed, who reported in favor of the plaintiffs, March term, 1852, and judgment was rendered on the same, at the said term.

Book Account. Judgment was rendered, and an auditor appointed, who made his report, and the case passed to the Supreme Court.

Assumpsit. The declaration contained two special counts on notes, and the money counts. The defendant pleaded the general issue, and special pleas of the statute of limitations. The plaintiffs replied, joining issue on the first plea, and specially as to the other pleas. The defendant demurred to the replication† in part, and rejoined as to the residue specially.

<p> Attorney and Client. </p> <p>The Supreme Court will not revise the finding of the court below, on matter of fact.</p> <p>All communications, which the client makes to his attorney, for the purpose of professional advice, upon the subject of his rights or liabilities, are privileged communications.</p>

Trespass on the Case. These two cases involved very nearly the same general principles, with some difference of application to the circumstances of each. The claim of Hatch was for consequential damage to premises of his, lying near the railroad of defendants; but not taken for the purposes of the road. Plea, general issue, and trial by jury.

Assumpsit upon a bill of exchange. Plea, general issue, and trial by jury. On trial, the plaintiff introduced and read, in evidence, the deposition of Moses D. Bean, John D. Campbell, and the bill of exchange, which was attached to the deposition of the said Campbell, and was as follows, viz: “The Union Bank on Montreal, Lower Canada.'” “ $850. Value received. No. 253. “ Exchange. ■“£212 10s. Od.

Assumpsit in four counts, viz: work and labor; for goods sold; for money paid; and for money had and received. Plea, general issue, and that the cause of action did not accrue within six years. The replication traverses the second plea.

Audita Querela. Plea, general issue, and trial by the court. The plaintiff alledged in his complaint, among other things, that the defendant, on the 11th day of July, A. D. 1850, prayed out a writ of attachment against the complainant, bearing date that day, and signed by Joseph King, Justice of the peace, and made returnable before said justice, at the dwelling-house of said justice, in Fletcher, on the 6th day of August, A. D. 1850, at one o’clock in the afternoon.

Habeas Corpus. The petition was as follows : “ Your peti- “ tioner, Gardner Traey, of South Hero, in the county of Grand “ Isle, humbly shows to your Honors, that he is now confined in “ the common jail, at North Hero, in the county of Grand Isle, by “ Charles H. Clark, sheriff of said county, by virtue of a process “ of mittimus, a copy of which is hereto annexed ; and your peti- “ tioner shows to your Honors, that A. M. Kinney, who issued said “ process or mittimus,…

This was an action of Trespass, in which W. H. Mosher was summoned as trustee.

<p> A bond of recognizance under the Bastardy Act. </p> <p>A bond of recognizance under tbe Bastardy Act, which includes an installment over due at the time the recognizance is taken, is not void.</p> <p>The recognizance being taken to perform the entire order of the court unless a portion have already been performed by payment, the entire obligation will rest upon the cognizors, and will so rest, though by the order of the court, an installment is over due and unpaid, at the time the recognizance is taken.</p>

This was an appeal from an allowance of the executor’s account, and an order of distribution by the Probate Court. So far as the allowance of the executor’s account is concerned, the appeal, by agreement of parties, is withdrawn, and the decree of the Probate Court is to be- affirmed.

Trespass for injury to the plaintiff’s cattle. Plea, the general issue, and trial by jury.

<p>[In Ciianceby.]</p> <p> Legacies. When a legacy carries interest. </p> <p>A legacy to be paid at a future day, does not carry interest till due, and this rule applies to infants as well as adults.</p> <p>The case of a parent and child is an exception to the general rule, upon the ground that it must have been the intention of the parent, to have the interest paid as a means of support of the infant from time to time, where the will made no other provision for it.</p> <p>This exception does not extend to grand-children. Query, whether it would not, if it appeared that the grand-children were dependent rrpon the grand-parent for support, and needed the interest for that purpose. ’</p>

This was an action of assumpsit. Declaration on Book, and plea in offset, and trial by jury. The plaintiff gave evidence, tending to prove that in July, 1850, lie laid an aqueduct for the defendant, upon his, the defendant’s land, extending from a spring, thirty-three rods from his house, for which the defendant agreed to pay the plaintiff one dollar per rod.

Trustee Process. A judgment in this case was rendered against the principal debtor, and the case as between the plaintiff and trustee, was referred to a referee, who reported subtantially the following facts: That the writ in this case was served on the trustee, on the 25th day of June, A. D. 1844, and that on said 25th day of June, said trustee did not have any goods, chattels, &c., of the principal debt or in his hands, and was not at that time trustee of said Cooper.

<p>[In Chancbhy.]</p> <p> Injunctions. The Power and authority of the Court of Chancery in certain cases considered. </p> <p>' An appeal from the order of a Chancellor granting an injunction, lies in all cases to this court.</p> <p>The validity of a writ of sequestration, and the regularity of its execution, is to be judged of exclusively by the Court of Chancery.</p> <p>A known officer of the State, while serving the processes of the Court of Chancery becomes its officer, and entitled to-its protection, and so with officers specially appointed by the Court of Chancery.</p> <p>Injunctions in certain cases may be granted without a bill being filed.</p> <p>Where the case comes within the ordinary powers of the Court of Chancery, it may interfere in a summary manner, to vindicate its officer from suits at law for alledged irregularities in executing the process of the court.</p>

Trespass on the Case, brought to recover the value of two horses, killed upon the track of defendants’ road, by a train in motion. Plea, general issue an'd trial by jury. On trial, the parties agreed upon the following statement of facts, which contains all the material evidence in the case.

This was an action on the case, brought to recover damages, for an injury to the plaintiff’s horse and other property, sustained by reason of the insufficiency and want of repair of a highway in said town of Castleton.

Audita querela to set aside an Extent from the Treasurer of the State, for the collection of taxes. After demurrer and joinder in demurrer, the defendant moved to dismiss, on the ground that the court has no jurisdiction of the subject matter of the suit. The County Court, September Term, 1852, — Collamer, J., presiding, — dismissed the cause for want of jurisdiction. Exceptions by plaintiff. 1.

Trespass, in which plaintiff claimed to recover the value of a pair of stags, alleged to have been taken from his possession by defendant, on the 20th day of May, 1850.

Book Account. The suit was commenced before a justice, of the peace, and came before the County Court by appeal, for hearing upon questions arising upon a plea in abatement, replication, rejoinder and demurrer. The defendant craved oyer of the account, and the same is read to him in these words and figures: “ Heman L. Hazen, North Hero, Grand Isle Co. “To P. G. Stone & Co., Dr. “ 1850, 18th August.

Trustee Process. The suit was commenced before a justice of the peace, and came to the County Court by appeal on the part of the trustee. The trustee disclosed, that in 1849, he had some business with the principal debtor, and that in March, 1850, the principal debtor was indebted to him to an amount exceeding one hundred dollars, besides a large amount which he had paid to third persons, at the request and for the benefit of the principal debtor.

Trustee Process. Trie principal debtor was defaulted, April Term, 1849. Tbe writ was served upon the trustees, March 19th, 1849.

' This was an action on tlie case, for obstructing a highway in Shrewsbury. Plea, the general issue, and trial by jury.

Book Account. Judgment to account was rendered in the County Court, and auditors were appointed, who reported the following facts: That the plaintiff commenced work for the defendants on the 29th day of October, 1846, as an apprentice, to learn the blacksmith’s trade, under a contract made by the plaintiff with the defendants; that the plaintiff was then a minor, (being sixteen years of age on the 19th day of October, 1846;) and by the terms of the contract, he was to…

Book Account. Judgment to account was rendered in the County Court, and an auditor was appointed, who reported substantially the following facts: That there is due from the defendant to the plaintiff the sum of one hundred and eleven dollars and eighty-two cents, to balance book accounts between them, if the court should be of the opinion that plaintiff’s account is not barred by the statute of limitations, from the following facts found.

<p>Special Assumpsit. Plea, the general issue, and trial by jury- .</p> <p>The plaintiff relied upon the second count in the declaration, which was as follows :</p> <p>“Also for that the said defendant, on or about the 15 th day of “April, 1849, being indebted to the plaintiff in about the sum of “ $43,50, in consideration that the plaintiff would acquit him there- “ for, promised the plaintiff in satisfaction thereof, to give him a “promissory note of about the sum of $24,00, and deliver to him “ a certain rifle gun valued at ten dollars, which had belonged to “ Artemas Ward, Jr., in his life time, and which was then possess- “ ed and claimed by the defendant, and the plaintiff confiding in “ said promise, did acquit the defendant of such indebtedness; and “ although the defendant has since given said promissory note to “ the plaintiff, he has not delivered to the plaintiff said rifle gun, “ but so to do has utterly neglected,” &c.</p> <p>On the trial, the plaintiff offered testimony, tending to prove that in March, 1849, he held a note against the defendant, dated the 9th day of November, 1842, payable to one Hubbell Lathrop, hut which belonged to the plaintiff, for fifteen thousand heart shingles, one year from, its date; that it was agreed between the parties that said note should he given up by the plaintiff to the defendant, and that the defendant should, within a week or ten days thereafter, deliver to the plaintiff 'a note for the twenty-four dollars, payable in three thousand feet of floor plank, and a rifle gun, which had belonged to his (defendant’s) son Artemas, called the Hutel rifle, valued at something like $14,00; that said note was given up to defendant, and that heart shingles, in March, 1849, were worth two dollars per thousand.</p> <p>It was insisted by the defendant that there was a variance between the declaration and the plaintiff’s proof; but the court overruled the objection, and the jury returned a verdict for the plaintiff.</p> <p>To the decision of the court, the defendant excepted.</p> <p>The promise of the defendant is alleged to have been: 1st, to give the plaintiff a promissory note of about $2.4,00; and 2d, to deliver a rifle gun valued at $10,00. To correspond with this allegation, the proof should have been, to give a promissory note payable in money, and not in specific articles. Smith v. Brush, 8 Johns. 65.</p> <p>The latter is not regarded as a promissory note, only so far as declaring upon the instrument is concerned. Dewey v. Washburn, 12 Yt. 580. And a tender of such a note would not have been a fulfillment of the promise as alleged.</p> <p>The defendant’s objection is not to a defective or insufficient description of the contract in the declaration; but to a supposed variance between the description given and the proof.</p> <p>1. Without a knowledge of the value of the shingles, at the place of delivery, at the maturity of the note, the court could not say, that the indebtedness was not precisely $43,50 ; much less that it was not about that sum. 1 Phil. Ev. 209. 1 Cowen & Hill’s Notes, 521. 2 Barn. & Aid., 206.</p> <p>2. Declaration, “ a promissory note of about $24.” Proof, “ a note for $24, payable in 3,000 feet of floor plank.”</p> <p>.This is a promissory note of just $24. Perry v. Smith, 22 Yt. 301.</p> <p>3. Time for delivery of $24 note and gun is not stated. It need not be. 1 Cow. & Hill’s Notes, 509. Porter v. Talcot, 1 Cow-en, 359.</p> <p>An agreement to deliver “ in a week or ten days,” was proved. Here is no inconsistency, nothing averred which is falsified by the proof — hence no variance; merely a redundancy of proof. Allen v. Goff, 13 Vt. 148. Atwood v. Smith, 5 Pick. 232, 235. 1 Cow. & Hill’s Notes, 510.</p>

Book Account. The suit was commenced before a justice of the peace, and came to the County Court by appeal.

Action or Debt, on judgment of a justice of the peace.— Plea, mil tiel record, and issue to the court.

Trespass on the case, for diverting a stream of water running to tbe plaintiff’s ochre factory. Plea, not guilty, and trial by jury.

<p> Replevin. Fraud. Verdict and costs. </p> <p>In an action of replevin, where the verdict is for both parties; for one, damages and costs, as to that portion upon which he maintained his replevin; and for the other, for the return of the property improperly taken by the writ, damages for its detention, and costs; the .judgment must follow the verdict, and the costs must be apportioned according to equity.</p> <p>Where one has been induced, by false representations, to sell goods, and would rescind the contract on the ground of such false representations, he must be in a condition to put the other party m statu quo.</p> <p>A creditor, who attaches property obtained by fraudulent practice or misrepresentation, does not acquire any better right to hold it, as against the former owner, who has been thus fraudulently deprived of it, than the fraudulent vendor bad; and amere assignment of the goods, in security of a pre-existing debt, can confer no greater right than an attachment; as there is no new consideration for the assignment, the assignee only takes the right of the assignor.</p>

Trustee Process. The suit was commenced originally before a justice of the peace, and came to the County Court by appeal. The trustee disclosed that he was administrator of the estate of Moses Chase, deceased, and that said estate was indebted to the principal debtor in the sum of $20,37.

Indictment for the neglect of the town of Vernon, in not opening and making a highway, laid out and established by the County Court. Plea, not guilty, and the issue to the court. On trial, the laying out and establishing of the said highway, and the order for making and opening the same, was proved as alleged in the indictment. .

This was a Complaint of a town grand juror in two counts; the first count charged the respondents with an assault with intent to ravish, &c.; the second count charged the respondents with a common assault. It appeared from the records of the justice, that the respondents were arraigned upon said complaint, and plead not guilty, and put themselves on the country for trial.

Book Account. The suit was commenced before a justice of the peace, and came to the County Court by appeal. The plaintiff moved to dismiss the appeal, on the ground that the case was not appealable. It appeared from the records of the justice, that defendants craved oyer of plaintiff’s account. The plaintiff exhibited an account for medicine and visits to a Mr.- Bailey, (pauper,) amounting to $7,27, and an item for interest of $2,61, amounting in all to the sum of $9,88.

Ejectment, to recover the possession of the back door yard or court to a certain tenement situate in Brattleboro. Plea, the general issue, and trial by jury. On trial, the plaintiff introduced testimony tending to prove that she was in possession of the premises, and that the defendant had erected over a well in said yard, a shed about eight feet square, and rested.

<p>This was an action of debt. Tbe defendant, Back, plead in abatement, for defective service of tbe writ; the writ having been served by an authorized officer. The plaintiff replied to defendant’s plea in abatement, and defendant rejoined to the replication, and to the rejoinder plaintiff demurred.</p> <p>The County Court, — Corramer, J,, presiding, — decided that the rejoinder was insufficient.</p> <p>Exceptions by defendant.</p> <p>The return is not conclusive. Unless the return of a person specially authorized to serve a writ, by the authority signing it, may be denied by the defendant, he has no adequate remedy, in case of a false return by such person.</p> <p>The case of known officers is different; the remedy, by suit against them for false return, is available.</p> <p>Nor could the same objection hold, in case a sheriff specially authorized a person to serve a writ. Barrett v. Seward, 22 Vt. 176.</p> <p>That case is put upon the ground that the sheriff is liable for the acts of his special deputy. No such liability rests upon the authority signing a writ. Nor is there a bond, as in case of the sheriff.</p> <p>It is enough for all practical purposes, to hold that the return is prima facie evidence of what it contains.</p> <p>The return of the officer is conclusive between the parties, in the particular action. Washburn’s Dig. 334.</p> <p>An authorized officer has all the powers of a regular officer, except that he is not recognized as a known officer. Comp. Stat. 242, § 7 and 8. Baxter et al. v. Wilkinson et al., 18 Vt. 186.</p>

Habeas Corpus. Robinson C. Powers, the relator, set forth in his petition that he was imprisoned in the common jail in Woodstock, in the county of Windsor; that he was first committed to said jail on Tuesday, the 8th day of March, 1853, by Lorenzo Richmond, of said Woodstock, Sheriff of said County of Windsor ; that he had been guilty of no offence against the laws of the State of Vermont, or against the common law of the land; that he was committed without any precept in…

Bill of foreclosure in common form, on a mortgage, by Russell Topliff, to one Hugh Henry, dated February 10th, 1845, to secure the payment of a note for $1000, which note Daniel Aiken signed as… Held: that the actual recording of an execution and levy is necessary in order to make a good title, as against the debtor to the creditor. Morton v. Edwin, 19 Yt. 81. Hubbard v. Dewey, 2 Aik. 312.

This was an action on the Case, against the defendant, as Sheriff of the county of Windsor, for neglect, in not collecting and returning an execution in favor of the plaintiffs, against Joseph B. Danforth, and others. Plea, the general issue, and trial by jury. On the trial, the judgment against said Danforth and others was conceded, and also the issuing of an alias execution, on said judgment, November 15, 1849.

Special Assumpsit. The plaintiff set forth in his declaration, that there was pending against him an action in favor of one Eobert K. Cook, of Morristown, in the county of Lamoille, returnable before John Miles, a justice of the peace, at said Morristown, on the fourth Monday of March, 1849, in which action the said Charles E. Cook recognized in due form of law to insure costs to the plaintiff, who was defendant in said suit; and that the plaintiff was about to summon his…

Trustee Process. Judgment was rendered against Cross-man, the principal debtor. AncJ, Joseph S. Holden entered as claimant: On trial, the court found the following facts, in relation to the said claimant. That R. Campbell, the trustee, executed a note to said Holden in April, 1849, for $50, payable in two years, with interest, which note is still due.

Scire Facias, to obtain a new execution, upon a judgment of a justice of tbe peace; a former execution having been levied upon a certain piece of land encumbered by a mortgage, without noticing the mortgage. Plea, the general issue, and trial by jury. On trial, the plaintiff offered in evidence the said execution, and officer’s return thereon, with the certificate thereon of the recording of the same, all dated in September, A. D. 1843.

Debt, on judgment. Plea, payment and trial by jury. On trial, it appeared that the amount of the demand in suit had been paid to the plaintiffs by J. Lyman, the attorney, who held the same for collection. ' The plaintiffs insisted that the sum of $200,09 of the amount paid, had been paid by Gilman Henry, the sheriff, who held the alias execution upon the original judgment; and that this suit was commenced, and prosecuted by said Henry, for his own benefit.

<p>Trespass for taking a cow, &e. Plea, general issue, and notice that defendant will give in evidence, and rely upon the following facts, to wit: That plaintiff’s property sued for, was taken and sold in satisfaction of four several school district taxes, duly assessed by the inhabitants of school district No. 22, in Chester, and that said district was duly organized, &c. Trial by jury.</p> <p>On the trial, it was conceded by the defendant, that the property sued for was taken by collector of said school district, in satisfaction of said taxes against the plaintiff, and that the defendant was prudential committee of said district — signed one of said tax bills, &c.</p> <p>It was conceded by plaintiff, that he resided within the limits of said school district, No. 22, at the time of the voting and collection of said taxes, and that he had a grand list in said district, upon which said taxes might be legally assessed, in case said district was legally organized. That said taxes were voted and assessed at meetings of the inhabitants of said district, legally warned and holden for that purpose; and that all the provisions of the law, relating to the distraining and selling said property by the collector, were complied with.</p> <p>- It was also conceded that the town of Chester, at their annual March meeting, upon an article in the warrant calling said meeting for that purpose, in the following words, viz : “ To see if the town will vote to divide the 20th school district,” voted* as follows, viz: “ Voted, that the 20th school district be divided, in case said district pass a vote subsequently to this time to divide” That the vote and proceedings of said town of Chester were duly recorded in the records of said town of Chester.</p> <p>It was also further conceded, that on the fourth day of April, A. D. 1848, at a legal meeting of the inhabitants of said last named-district, called for that purpose, said district passed a vote to divide said school district, No. 20, as follows, to wit: “ Beginning at the “ north corner of Silas S. Sawyer’s farm, and running southwest “ on said Sawyer’s north line, across the road and river ; thence on “ the south bank of said river, to the southeast corner of the bridge “ crossing said river; thence southwest on the east side of said road “ leading from Chester to Grafton, to John Brook’s pasture, and to “ Brook’s northeast corner; thence on Abram Sawyer’s west line “ to the branch river; thence on the south and east line of district “ No. 20, to the place of beginning.” That said vote of said district was duly recorded in the records of said district No. 20, and also, together with the above description of said new district, was recorded in the records of said town of Chester.</p> <p>That said new district, on the 12th day of April, 1848, was, upon previous application to the selectmen of said town, after due notice to all concerned, duly organized as a school district in said Chester, and the proceedings of the selectmen in organizing said district, were recorded in due form of law in the records of said town of Chester.</p> <p>That at the annual March meeting in 1849, of said town, an article was inserted in the warrant calling said meeting, to set off three persons residing in school district No. 10, in said Chester, with their real estate, to said district No. 22 ; and that said town, at said meeting, voted to set off said three persons and their real ■estate, from said distinct No. 10, to said district No. 22; and said persons have, ever since said vote, acted with said district No. 22.</p> <p>That the selectmen of said town, in the division of its school fund among the several school districts in said Chester, in the spring of 1849, 1850, and 1851, divided to and paid over to said district No. 22, its proportion of said fund.</p> <p>The County Court, December Term, 1852, — Collamer, J., presiding, — upon the foregoing facts, pro forma, instructed the jury that said district was not legally organized, and that plaintiff was entitled to recover of the defendant for the property sued for. The jury, in accordance with the instructions of the court, returned a verdict for plaintiff.</p> <p>Exceptions by defendant.</p> <p>The only question arising in the case is, as to the legality of the proceedings of the town of Chester, in organizing the district.</p> <p>The case finds that said school district No. 20, at a legal meeting called for that purpose, by a vote of said meeting, on the 4th day of April, 1848, defined the geographical limits of the new district, and that the vote, together with the boundaries of said new district, were duly recorded in the records of the town of Chester, and in the records of district No. 20. The case also finds that the proceedings of selectmen in organizing the district were also recorded, &c.</p> <p>The town of Chester, at their annual March meeting, in 1849, agreeably to an article in the warrant calling said meeting, voted to set off' from district No. 10, to district No. 22, three persons and their real estate; and in the distribution of the school money in the spring of 1849, 1850, and 1851, the selectmen divided to and paid over to said district No. 22, its proportion of said money. After these acts on the part of the town and its officers, the several taxes were assessed, for the payment of which the plaintiff’s property was taken.</p> <p>, These acts of the town and its officers constitute a ratification of the doings of' school district No. 20, and are binding upon all persons; and these acts occurred before any tax was voted by said district, of which the plaintiff complains.</p> <p>The organization of the district has been, therefore, recognized, adopted and ratified by the town. Pierce v. Carpenter, 10 Vt. 480. Alden v. Rounsville, 7 Met. 218.</p> <p>The district was not legally organized, because its limits had never been defined by any vote of-the town. The town at no time undertook to define the limits by a direct vote, neither did they delegate .the power to define, and afterwards ratify the doings of the -delegate. Pierce v. Carpenter, 10 Vt. 480. Hewitt v. Miller, 21 Vt. 402. School District in Alton v. Gilman, 3 N. H. 168.</p> <p>There are only two methods of forming a legal district, one by strictly legal proceedings under the statute, the other by showing the exercise of corporate powers for a long period, from which a legal organization may be presumed. Barnes v. Barnes, 6 Vt. 388. Sherwin v. Bugbee, 16 Vt. 439..</p> <p>The district had not been acting long enough, as a district, to warrant a presumption of its regular organization. Thomas v. Gibson, 11 Vt. 607.</p> <p>The acts- of -town officers, in recognizing a void district, cannot render it a legal district. Pratt et al., v. Swanton, 15 Vt. 147.</p>

<p>Ejectment, for lands in Cavendish. The case was referred to referees, who reported the following facts:</p> <p>That the premises described in the plaintiff’s declaration are the southerly half of a piece of land, an undivided half of which was deeded by Asa Wheeler to the plaintiff, and one Isaac Spaulding, by deed dated August 17, 1815, and recorded in Cavendish Land Records, on the same day; and an undivided fourth part was deeded by the said Isaac Spaulding to the plaintiff by deed dated October 14, 1816, and recorded in Cavendish Land Records, May 10, 1822. That prior to 1816, a small part of the land described in the plaintiff’s declaration had been cleared, and ever since that time the plaintiff has been in the possession and occupancy of that portion of the land cleared as aforesaid; and some fifteen years ago, the plaintiff having for three years been taking the wood from another portion thereof, lying westerly of the land before cleared, and northerly of defendant’s land, cleared and raised grain on the westerly end, and from that time occupied the same .either as mowing or pasturing up to 1845.</p> <p>That no division by deed was ever made of the lot of land, of which the plaintiff owned an undivided half; but by consent of the parties, plaintiff occupied that portion described in his declaration, from the year 1816 to 1845, so far as he could possess it by occupying the cleared land, and cutting and carrying timber and wood from the same, from year to year, and making sugar thereon, which acts he did nearly or quite every year during the time.</p> <p>That for more than forty years, and probably more than sixty years, there has been a line generally known and recognized as the line between Cavendish and Ludlow, which is the western boundary of the land claimed by the plaintiff, and until within the last five years, so far as the land owners southerly of the plaintiff’s land in Ludlow and Cavendish have cleared, occupied, or fenced their lands, they have done so conformably to said line.</p> <p>The surveys of land in Cavendish appear to have been made to that line, and it does not appeal- that the survey of any lot of land in Ludlow has ever been made across it.</p> <p>This line appears to haye been made in consequence of local attractions affecting the magnetic needle, and from the north-westerly corner of the land claimed by the plaintiff to the present recognized south-westerly corner of Cavendish, is several rods westerly of a straight line from the north-east to the south-easi corners of Ludlow, as said corners were originally established.</p> <p>The charter line between Ludlow and Cavendish was a straight line; but the oldest inhabitants now living have generally understood from an early day that the line as usually recognized was a crooked line.</p> <p>At some time, probably more than sixty years ago, a straight line was run and marked between the towns; but there was no evidence that said line has ever been recognized, either by the land owners, or either of the said towns, or that it had ever been traced or seen, by any person now living, till within two or three years last past.</p> <p>The defendant is the owner of a piece of land in Ludlow, adjoining the plaintiff’s land, and bounded on the east by Cavendish line, and has been in possession of said land, as far easterly as to the line claimed by the plaintiff as his west line, ever since March, 1837.</p> <p>In the year 1845, a straight line between Cavendish and Ludlow, from the recognized south-west corner of Cavendish, was run by one Warren Skinner, and it was found to cross the land claimed by the plaintiff some sixteen rods easterly from what had, up to that time, been recognized as the line, and the defendant thereupon claimed that his land extended easterly to said line, called the Skinner line. That portion of the land claimed by the plaintiff, lying westerly of the Skinner line, and southerly of the defendant’s north line, was wood and timber land, and has been used by the plaintiff for the purpose of occasionally obtaining wood and timber, and for sugaring, from the year 1816, but no part of it had been cleared or fenced. In 1845, the defendant took possession to the Skinner line, cut off the timber from three or four acres, and fenced the lands.</p> <p>The north-east corner of Ludlow is some .three or four miles northerly of the land in dispute, and from said corner the line is supposed to run southerly two or three miles straight, and in the direction of the south-east corner of Ludlow; this line has always been acquiesced in by all concerned. The farm immediately north of the land in dispute, lies in both Cavendish and Ludlow, and no line across it, between the towns, has been kept up.</p> <p>The line between the lands of the plaintiff and defendant, to which the plaintiff claims, and the line extending southerly therefrom, is westerly of a straight line between the comers of Said towns, and has been acquiesced in as the line until 1845, by the claim and occupancy, as far as circumstances required, by those claiming to own the land on the Cavendish side, and by the absence of any claim or occupancy east of that line, by those on the Ludlow side of the line until 1845. This line is neither a straight line, or a curve line, but is irregular, in some places running in one direction, and in other pdaces running in variant directions.</p> <p>There was no other proof of the acquiescence of the defendant in this line, than that he did not exercise any act of ownership over it, or claim to the land east of it, until the Skinner line was run, and had recognized the line to which the pdaintiff claims, as the true line.</p> <p>The piarties regarded the town line as the line between their lands, and the plaintiff had no deed or other title recorded in Ludlow.</p> <p>The defendant objected that said report did not entitle the plaintiff to recover; but the County Court, March Term, 1852, — Col-lamer, J., presiding, — overruled the objection, and rendered judgment for the pdaintiff to recover the lands, with damage and costs, to which the defendants excepts.</p> <p>I. The plaintiff cannot sustain this action. He has no title to the land in controversy; he is only a joint owner with others, and in ejectment all must join. In trespass, his possession coupled with part ownership might do ; but in ejectment a different rule attaches. The plaintiff’s occupying the land “by consent of the parties ” does not give him title to the premises.</p> <p>II. The lands sued for are described as being in Cavendish; but the report of the referees shows the lands to be in Ludlow. Therefore the plaintiff cannot recover in this action. - Hooker v. Hicock, 2 Aiken, 172.</p> <p>III. The plaintiff has no title to the lands in controversy, and if he holds them, it must be by his possession. There is nothing in the report which shows any such possession as would give a title.</p> <p>When the corners are not in controversy, there must be unequivocal evidence of an acquiescence in a zig-zag line between them, to establish it as the true line. In this case, the defendant claims to a straight line between the corners. The acquiescence of the defendant and those under whom he claims, for a period of fifteen years, is necessary to establish the line. There is no pretence of acquiescence by those under whom the defendant claims, and his acquiescence does not vary the case, for he bought the lands in 1837, and took possession of the lands in controversy in 1845. Growell v. Bebee, 10 Vt. 33.</p> <p>The plaintiff taking and recording a deed in one town would not give him a constructive possession in another, even if he does take possession of a part of the lands in the town wihere the deed is placed on record. The plaintiff does not show a charter title to the lands which his deed covers ; he' must therefore rely upon his possession, and this we insist is wholly insufficient. The land was in a wild state, neither cleared nor fenced, and he occasionally got wood and timber from it from 1816 to 1845. This would not have estopped him from disclaiming title, had ejectment been brought against him.</p> <p>The equity of the case is manifestly with the defendant, and there can be no dispute but what the defendant honestly owns the land, and the plaintiff is attempting dishonestly to wrest it from him. Therefore the court should not “strain a point" or make a presumption in favor of the plaintiff, .</p> <p>That the land is described in the declaration, as situated in Cavendish, cannot affect the validity of the decision of the referees.</p> <p>1. It may well be doubted, whether even the towns, after an acquiescence for the length of time stated in the report, in the line as located, are not now estopped from denying that it is the true line.</p> <p>2. All that is required in the declaration is, that the sheriff, from the description there given, can determine its location, for the purpose of delivering seizin. In this case the land is described with precision, by metes and bounds; and the allegation, that it is within a certain town, may be treated as surplusage. The averment that it is within the county of Windsor, is sufficient to give the County Court jurisdiction. The gist of the issue is, whether the plaintiff owns the land within the metes and bounds named by him; and this is all that referees are bound to regard. And this point they determine, by deciding that he has been in adverse, exclusive and undisputed possession of the land, as described, for a period exceeding fifteen years.</p> <p>3. That the plaintiff’s deed never was recorded in Ludlow, does not affect his right of recovery. Possession, for the statute period, gives as perfect a title as a title of record can be, and, by its notoriety, supersedes the necessity of a record of the deed under which it is taken, since the only object of such record is notice.</p> <p>4. And this defendant cannot, in any event, object to the plaintiff’s deed for want of record; for he does not claim title under the plaintiff’s grantor.</p>

<p>[In Chancery.]</p> <p> Presumptions. Mortgagee’s right of entry upon land. Effect of acknowledgement of the title of mortgagee, by the owner of the equity of redemption. </p> <p>Presumptions must always rest upon acknowledged or well established facts, and not upon presumptions.</p> <p>The mortgagee’s right of entry upon land is not lost, either by presumption, or the statute of limitations, except by a continued interruption and ouster, for the term of fifteen years; and this interruption, or oustei', ceases upon the acknowledgement of the title of the mortgagee, by the owner of the equity of redemption. And if not the owner at the time of the whole equity, yet if the title subsequently come to him, his previous acknowledgement must bind him and bind the land in his hands.</p> <p>The creditor or mortgagee may abandon the personal obligation of the debtor, without affecting his security upon the land; that is, he does not lose his right to pursue the land, by allowing the security to become barred by the statute of limitations.</p>

<p> Debt on judgment. Pleading. Principcd and surety. </p> <p>A plea in bar, -which alleges the giving of time to the principal, without thelmowledge or consent of the surety, upon a good and valuable consideration, without setting out the consideration, is bad.</p> <p>A demurrer admits such facts only as are well pleaded.</p> <p>The judgment upon a note operates as a merger of the note, and at law it becomes so far conclusive upon the parties to it, as to exclude a defence growing out of the relation of principal and surety, existing between the defendants in the judgment prior to its recovery.</p> <p>Query. Whether, after judgment against a surety, his character as surety is not at an end, and as against the creditors, he can no longer claim the privileges of a surety.</p>

<p>Debt on judgment. Pleas, nul fiel record, and bankruptcy.— Replication that there is such a record, and to the plea in bankruptcy, replication that the bankrupt was guilty of fraud and fraudulent concealment of property, and fraudulent preference of creditors, in contemplation of bankruptcy. The defendant rejoined in estoppel, to which the plaintiff demurred.</p> <p>The County Court, December Term, 1832, — Collamer J., presiding, — adjudged that there is such a record, as averred, and held the rejoinder sufficient, and gave judgment for the defendant.</p> <p>Exceptions by plaintiff.</p> <p>I. The provisions of the bankrupt act create an exception to the ordinary rule, in respect to estoppels by prior adjudication; and in no case, where a certificate in bankruptcy is pleaded, can inquiry as to questions of fraud be precluded by a rejoinder in estoppel of the proceedings in the District Court. Bankrupt Act, § 4. Mabry v. Hendon, 9 Law Rep. 262. ■ Beekman v. Wilson, 9 Met. 434.</p> <p>II. A general allegation of fraud is insufficient. The facts, which constitute the fraud, must be alleged.</p> <p>III. The rejoinder is insufficient, in respect to the manner in which it is pleaded. 1 Chit. PI. 214,</p> <p>An estoppel can only be by record; and the record must be vouched in the plea. They?ies are but parol evidence. Gray v. Pingrey, 17 Vt. 419. Manning v. Harris, 2 Johns. 30. If the matter do not appear by the record, it should be brought forward by plea in bar, in the nature of a plea in estoppel.</p> <p>It is not sufficiently alleged, that the District Court adjudged that defendant was not guilty of fraud.</p> <p>IV. The plaintiff is not estopped by having proved a debt in the district court.</p> <p>1. Such estoppel operates only as to the particular debt proved; and the identity in this rejoinder is not alleged.</p> <p>2. But if this allegation were inserted as a distinct ground of estoppel, the rejoinder is bad for duplicity.</p> <p>1. Estoppel not odious, unless odiously used. 2 Smith’s leading cases, 430. Gray v. Pingrey, 17 Vt. 419, remarks of Redfield, J. The maxim that “estoppel is odious,” had its origin in its early use, when the subject matter was principally admissions, and rarely adjudicated by competent tribunals. -</p> <p>See Coke’s definition: — “ An estoppel is where a, man is concluded by his act or acceptance, to say the truth.” Coke’s Lit. 352, (a.)</p> <p>H. Defendant relies on former adjudication. 1. Has he set forth an adjudication in the rejoinder ? .</p> <p>By an examination of the law and course of proceeding prescribed, it will be seen that all the steps are set forth, leading to a final and valid judgment between the parties, on the question of fraud in obtaining defendant’s discharge.</p> <p>2. Does that adjudication cover the subject matter- of plaintiff’s replication ?</p> <p>The proceeding in the District Court was under § 4, of the Bankrupt Act. “ And if any such bankrupt shall be guilty of any fraud or willful concealment of his property, or rights of property, or shall have preferred any of his creditors,” &c. ■</p> <p>The replication in this ease is under a subsequent clause of the same section, providing that the discharge and certificate shall be deemed and pleaded as a full and complete bar, &e., “unless the same shall be impeached for some fraud or willful poncealment by him of his property or rights of property, as aforesaid.”</p> <p>In the District Court, defendant was proceeding for a discharge. Downer was defending on the ground of fraud. He then had and took his day in court, with all the means he saw fit to" use.</p> <p>He is concluded by the judgment as to all matters which he might have urged against the granting' of the discharge. Parlchurst v. Sumner, 23'Yt. 538. 1 D. Chip. 308.,</p> <p>. The objections in the District Court cover the charge in the replication. This being apparent on the face of the pleadings, there was no need of alleging identity of subject matter. That is necessary only where the identity does not appear except by averment, as in Outram v. Morewood, 3 East. 346.</p> <p>III. The vouching of the proof is proper and sufficient. See sec. 13, Bankrupt Act, as to record, in view of which this form was adopted. Again: The plea nul tiel record would have raised a material issue. Without a record showing the judgment, the rejoinder could not be sustained. The files show, in detail, the steps and means by which the judgment was obtained.</p> <p>Another view is — that the files constitute the record, and under this law they are convertible terms. They are alike proveable by the certificate and seal of the court, and alike conclusive as to the fact they evidence.</p>

Action or Account. The declaration was as follows: “ In a plea of account, for that the said defendant, on the first “ day of April, A. D. 1847, and from thenceforth until the first “day of July, 1848, was the bailiff of certain sums of money re- “ ceived by the defendant for the mutual benefit of the defendant “ and the plaintiffs, to render a reasonable account thereof to the “plaintiffs, when thereto required ; yet the said defendant, though “requested, hath not rendered…

<p>Trespass de bonis asportatis, in two counts. The defendants pleaded, 1st, the general issue — 2d, the general issue as to a part of the first count, and a justification by virtue of an attachment and judgment as to the residue of the said count — 3d, the general issue as to a part of the second count, and a justification by virtue of two writs of attachment, and judgments and executions, as to the residue.</p> <p>The plaintiffs, as to the justification of defendants set forth in their second plea, and also as to the justification of the defendants set forth in their third plea, replied, that neither of the said writs of attachment was ever duly served on thé said Hammond & Draper, or either of them, as the said Wilder & Locke have in their said pleas alleged; but that the said writs of attachment were, and each of theln was served in the county of Windsor, and were each of them returnable in the county of Windham, and that the said service in each of said cases was made less than twelve days, to wit, only six days before the time therein appointed for trial, which was the only service that was ever made of said writs, or either of them; and that said Hammond & Draper were not bound by the law of the land to appear or answer to the same, and did not appear or answer thereto.</p> <p>At the May Term, 1852, of the County Court, the defendants having demurred to plaintiffs’ replication, the court, — Collamek, J., presiding, — overruled the demurrer, and rendered judgment for the plaintiffs; to which the defendants excepted, and the case was continued to the December Term, 1852, of the County Court, for trial on the pleas of not guilty.</p> <p>On the trial, at said December Term, the defendants offered to prove in mitigation of damages, that the property sued for was sold and applied in satisfaction of the judgments and executions mentioned and set forth in said pleas of justification, which the court excluded, and found the defendants guilty, and rendered judgment for the plaintiffs for the full amount of their damages. To which the defendants excepted, and the cause came to this court upon this bill of exceptions, and the exceptions allowed at the May term, aforesaid.</p> <p>The judgment below is clearly erroneous, unless the judgment upon which the execution issued was absolutely void.</p> <p>The question then is, does the fact that the original writ was served less than twelve days before the return day, under the circumstances, render the judgment void ? Comp. Stat. 234, § 38.</p> <p>The statute does not say that the service shall be void, if less than twelve days, much less does it make the judgment void, if less than twelve. The statute declares writs, &c., served after sundown, Saturday night, “ null and void in every respectyet who would contend that a judgment following such service, would be void ? Comp. Stat. 243, § 15.</p> <p>The statute forbidding sheriffs making writs, Sec., and declaring tliem void, has been upheld, and the same officer justified under an execution issuing upon such judgment. Comp. Stat. 99, § 26. Sewall v. Harrington, 11 Vt. 146.</p> <p>So the statute requiring a certificate of the “ day, month and year,” &c., declaring the writ void without it, does not render the judgment upon said writ void. Allen v. Huntington, 2 Aik. 249.</p> <p>An officer making attachment of property more than sixty days before trial, obtained no lien as against the levy of an execution. Nelson v. Dennison, 17 Vt. 74. The same would be the consequence of an attachment less than six days, and for the same reason, viz: the requirement of the statute.</p> <p>Now if the judgment upon the writ served less than six days be void, so would it be void for the same resson, when served more than sixty days; yet it never was suggested, in the case above named, that the judgment was void, nor could such pretence be made with any plausibility.</p> <p>In case of Prigg v. Adams, 2 Salk. 674, where an English statute declared judgments void under circumstances, yet it was determined that a judgment rendered in violation of the statute, was not absolutely void, but good and valid till set aside. This case is cited with approbation by the court in Allen v. Huntington, and Sewall v. Harrington.</p> <p>What then is the distinction between a judgment void absolutely, and voidable ? Courts proceeding according to the course of the common law, having jurisdiction of the cause, their judgments are not void, though they may be erroneous or irregular. Statutes that declare original writs void, do not render judgments void. Bannister v. Higginson, 15 Maine, 73. Smith v. Hice, 11 Mass. 507. Gilman v. Thompson, 16 Vt. 643.</p> <p>If this judgment is absolutely void in this case, how could the court render any valid judgment, upon plea in abatement even ? The whole matter must.be treated as coram nonjudice. .</p> <p>Will it be said, that under the authority of the case of Nelson v: Dennison, the officer by the attachment acquired no lien on the property, and therefore plaintiffs could sustain their suit for it?</p> <p>We answer, it does not follow from that decision, that defendant could seize or sue for the property in hands of officers. In the case referred to, it was a creditor. But if the attachment in this case conferred no lien, as against the defendants, still the judgment below was erroneous, as the same property was sold on execution, which was valid* until judgment was set aside, or otherwise vacated. If then the execution did not furnish a complete justification, it had an important bearing upon the question of damages, and was therefore improperly rejected.</p> <p>The plaintiffs contend, that the said writs, or either of them, conferred no authority on the officer to serve the same; and that the said judgments, and each of them, and the executions which issued thereon, are wholly null and void, and that it cannot be taken into consideration, in mitigation of damages, that the property, or any part thereof, was applied on said executions. Comp. Stat. 234, §§ 38, 32. Parsons v. Loyd., 3 Wilson, 341. Paine v. Ely et al., 1 D. Chip. 37. Brace v. Squire et al., 2 D. Chip. 49. Bond v. Wilder, 16 Vt. 393. Skinner v. McDaniel, 4 Vt. 418. Nelson v. Dennison, 17 Vt. 73. Bank of Rutland v. Parsons, 21 Vt. 199, Kellogg exparte, 6 Vt. 509. Hayden v. Shedd, 11 Mass. 500.</p>

<p>Trustee Process. The County Court, May Term, 1851,— Pierpoint, J., presiding, — found the facts set forth in the disclosures of Collins & Holden and Slack & Marsh, to be true. (The principal defendant having made an. assignment to Collins & Holden, and he, with one Carlisle, having made an assignment of the effects of the firm of Hapgood & Carlisle to said Slack & Marsh. The defects for which the assignments were held void, sufficiently appear in the opinion of the court.) That the assignment to Collins & Holden, and to Slack & Marsh, set forth in the disclosures, were in fact executed and received in good faith, without any fraudulent intent. But the court, as matter of law, held that the said assignments are void, for defects apparent upon their face.</p> <p>The court also decided, that the executions, which were issued in Jhis suit, and in a suit in favor of one E. Robinson, against the principal debtor, and named in the disclosure of said Collins & Holden, (the suit in favor of said Robinson being still pending in the County Court, against said trustees, Collins & Holden,) upon which executions property was sold to the amount of 547,59, are void. The court also found in the hands of the said Collins, (said Holden having deceased,) the sum of $208,86, in addition to the said $547,59, taken upon said executions; and adjudged said Collins chargeable as trustee, in this suit, for said sum of $208,86, and for the said $547,69, and therefore held said Collins trustee for the sum of $756,45. To which decision the said Collins excepted.</p> <p>And the court decided that said Slack & Marsh are not chargeable as trustees. To which plaintiff excepted. To the decision that the assignment to said Slack & Mársh is void, the said Slack & Marsh excepted. ,</p> <p>(The disclosures and assignments being quite.lengthy, it is not thought advisable to report them, as the material part appears in the briefs and opinion.)</p> <p>I. The assignment to Collins & Holden conveyed certain real estate and personal property, all of which was particularly described.</p> <p>The trust was — 1st, to pay certain specified creditors of the assignor — 2d, to divide the surplus, if any, among all the creditors of the assignors — 3d, to pay the remaining surplus, if any, to the assignor.</p> <p>This assignment, having been executed previous to the enactment of the statute of 1843, rendering void all general assignments in trust for creditors, is to be held not only valid, but executed for a purpose highly meritorious, according to the decision of this court in Hall v. Dennison et al., 17 Yt, 310, unlesss impeached for fraud.</p> <p>The objection taken is, that the assignment reserves a resulting trust in favor of the assignor, without first providing for all of his creditors. And we admit, that if it requires and receives this construction, it must, under the decisions of this court in Dana Adnvr. v. Lull, 17 Yt. 390, and Britnell v. Warren and Trustee, Windsor Co., June T., 1851, be held void.</p> <p>The clause relied upon by the plaintiff, to sustain this view, is in these words, after specifying the preferred creditors — “ And af- “ ter paying and discharging the above demands in full, if there “ shall be any surplus, said surplus is to be applied to the payment “ of all the said B. Hapgood’s individual debts, by the said T. B. “ Gollins and Joel Holden, in proportion to their respective de- “ mands.”</p> <p>1. These trustees are not to be affected by anything contained in the disclosure of Slack & Marsh. If the plaintiff would rely upon any facts, for the purpose of charging Collins, which do not appear upon the face of the assignment, or of the disclosure of Collins & Holden, he should have called them out by interrogatories, or have filed allegations and had them found by a jury. Downer v. Topliff and Tr., 19 Yt. 399.</p> <p>It does.not appear from the assignment, nor is it stated in the disclosure of Collins & Holden, nor. found by the bill of exceptions, that Hapgood, at the time of executing this instrument, owed any debts, except those for which he was severally liable. Hence the word “ individual,” in the clause above recited, should be treated as surplusage. His “ individual” debts, in this situation of his liabilities, can only mean all his debts.,</p> <p>2. Neither will the court intend, from the use of this word, that Hapgood owed debts, which were not his “individual” debts. There is no fact stated, which will warrant such an intendment.</p> <p>All the debts, which a man owes, are his “individual” debts; and if the word will admit of two significations, one of which will defeat the deed and the other sustain it, the court, in the absence of all testimony, are bound to apply the latter. Thrall v. Newell, 19 Yt. 206. Co. Lit. 42. Chit, on Cont. 80, 81, n. (v.) Broom’s Leg. Max. 238, et. seq.</p> <p>If words are used, which, in their most general sense, would render a deed illegal, their operation will be restrained, to give effect to the deed. Harrington v. Kloprogge, 4 Doug. 7, (26 E. C. L. 190.) Archibald v. Thomas, 3 Cow. 284. And the converse of this rule is equally true; a more enlarged application should be given to the words, if illegality would attach to the instrument by giving them a more limited sense. Parhhurst v. Smith, Willes, 332. Hob. 277.</p> <p>If the court, from an examination of the whole instrument, and from a consideration of all the attending circumstances properly before them in the case, can determine, with reasonable certainty, what was the intention of the parties, all doubtful words and phrases are to be so construed, and all intendments made, as to effectuate that intent. Goodtitle v. Bailey, Cowp. 600. Pingrey v. Watkins, 15 Yt. 489. Beach v. Haynes, 12 Yt. 15.</p> <p>The instrument purports, upon its face, to be a transfer of the property of the assignor in trust for the payment of his debts.— This, in the case of Hall v. Dennison el al., has been held an act of duty, meritorious in its nature, and entitled to the favor of the court. The court below have found, that both assignor and assignees acted in this, in good faith, honestly intending to carry out the legal purpose of the instrument, and that the assignees have only been prevented from so doing by the act of this plaintiff in taking the property from their possession. They must therefore have intended to make a good assignment. And the construction claimed will support the deed, will give effect to their intentions, and protect property, while the other “ is a subtlely, to overturn property, and to defeat the intention of parties, without answering any one good end or purpose whatsoever.” Pugh v. Dulce of Leeds, Cowp. 714. State v. Trash, 6 Yt. 364.</p> <p>At common law, if there is held to be a defect in this part of the deed, it would only avoid this clause, leaving the deed good as to the preferred creditors. Hob. 14. 1 Mod. 35. Hyslop v. Clarice, 14 Johns, 465. The plaintiff, then, must rely upon the statute, which declares deeds void, which are executed with intent to avoid any debt, &c.; but to bring the case within the statute, the intent is material to be proved; and although this may be presumed, perhaps, where there is a direct reservation to the debtor, yet it cannot be sufficient to presume it, from presuming, from the use of a word of doubtful signification, that the assignor intended such reservation. This would be basing a presumption upon a presumption, which is not allowable. Admr. of Hammond v. Smith, 17 Yt. 231.</p> <p>3. But if the fact were held established, that Hapgood, at the time of executing this instrument, was a member of an insolvent co-partnership, owing debts, the legal construction of this instrument would be to create a trust in favor of all the co-partnership, as well as separate creditors, and so it would be valid in law.— Individual debts are those for which a party is individually liable, and which can be levied upon his individual property. They include, at law, all joint and several obligations. And in equity, where alone this instrument can be enforced, and in reference to the rules of which it is to be construed, they include all joint bonds, which are there held to be several, Each partner is responsible, in solido, for all the debts of the firm. Both at law and in equity the' partnership creditors may enforce payment of their debts from his separate property. Bardwell v. Perry et cd., 19 Yt. 292.— Heed et al. v. Shepardson, 2 Yt. 125. And it is not necessary that they should first exhaust the partnership property. Wilkinson v. Henderson, 1 Mylne & Keene, 582. [7 Cond. Ch. R. 173.] Devagnes v. Nolle, 2 Rus. & Mylne, 495. [13 Cond. Ch. R. 139.]</p> <p>4. Upon this instrument, a court of equity, upon a bill brought by the partnership creditors, would restrain the assignees from paying any portion of the surplus, after payment of the preferred debts, to Hapgood, until the partnership creditors were paid. The consideration expressed is sufficient to vest the legal title in the assignees, and the. trust is sufficiently declared, although the words “individual debts” are used, to justify .such decree. If so, the instrument cannot be declared void for defects upon its face.</p> <p>5. But if the assignment should be held' void in law, the trustees would be liable, as in any other case, for the balance of property intrusted to them by the principal debtor, and not disposed of or accounted for previous to the service of the trustee process, deducting offsets.</p> <p>They cannot be held liable for the real estate.</p> <p>The disclosure shows that they have received—</p> <p>Personal property, 8 $927,47</p> <p>Increase and advances, 365,50</p> <p>Increase of farm in 1843, 89,14</p> <p>Do. do. 1844, • 43,12$</p> <p>$1,425,23$</p> <p>And from this they may deduct, for Pasturing sheep, $30,00</p> <p>Repairs of carriages, &c., 6,25</p> <p>Taxes 19,13; washing and shearing sheep, 11,00, 30,13</p> <p>Paid towards preferred debts previous to service of trustee process 300,00</p> <p>Amount of Collins’ claim (and interest,) 302,40 668,78</p> <p>$756,45$</p> <p>Of which there has been levied upon and sold on execution by plaintiff, 547,59</p> <p>Balance in trustees’ hands, $208,86$</p> <p>The execution on which the property was sold by the plaintiff, was issued in the suit now at bar; and the court below held it void, and adjudged Collins chargeable for that amount, upon the ground that the plaintiff having summoned Collins as trustee, could not take the property out of his possession, and was liable for so doing, in an action of trespass, now pending in the County Court; whether the court below were right in this, is a question to be determined by this court. Jones v. Spear and Tr., 21 Yt. 430. Downer v. Dana et aL, 22 Vt. 22.</p> <p>II. Slack Sf Marsh are not chargeable, even if the assignment to them, of April 12, 1843, is held void. The situation of. the funds in their hands is shown to have been as follows:</p> <p>Personal property assigned, $1,321,30 (Schedule A.)</p> <p>Avails and rent of real estate, 961,99 ( “ B.)</p> <p>Property not included in assignment, 161,53 ( “ C.)</p> <p>Amount of property, $2,444,82</p> <p>Deduct amount of labor, &c., in carrying on the premises, (Schedule E.) 914,03</p> <p>Leaves amount of trust fund, $1,530,79 Deduct amount of claims held personally, by the trustees against the principal debtor, viz :</p> <p>I. & H. Marsh, (class 1 of assignment) 267,00</p> <p>Levi Slack, (class 2 of assignment) 175,00</p> <p>Levi Slack, of $1,800 note, amount shown by schedule, 1,175,66</p> <p>$1,617,66</p> <p>Leaves a balance against trust fund of $86,87, besides trustees’ charges for services, and deductions on the estimated value of property.</p> <p>But this assignment is valid. Murray v. Riggs, 15 Johns. 571.</p> <p>The assignments, under which each of the trustees claim to hold the property from this plaintiff, are alike in many particulars, and will be discussed together as far as they are so.</p> <p>They both provide for the re-payment of the residuum to the assignors, without providing for the payment of all their just debts.</p> <p>Hapgood’s assignment provides for the payment of his individual debts only.</p> <p>Hapgood & Carlisle’s provides for the payment of their company debts, due in the company name only.</p> <p>I. We insist that these provisions render both of these assignments absolutely void.</p> <p>1. Because there is a. resulting trust for the benefit, of the assignors, without paying all their joint debts.</p> <p>2. Individual creditors can receive nothing from the company property, even after the company debts are paid, nor can the company creditors receive any thing from the individual property of Hapgood, even though a residuum remain, but that by the terms of the assignment must go to Hapgood.</p> <p>3. This arrangement may lock up the property from those who have a right to take it for the payment of their debts, and by the current of all the authorities, renders the assignment void. Dana Admr. v. Lull, 17 Yt. 390. Crosby v. Hilyar, 24= Wendall, 280.</p> <p>There are objections to the assignment of Hapgood & Carlisle which do not attach to the other.</p> <p>1. The giving of the $1800 note on the day of the assignment, for the consideration disclosed, with the intention then to sue it and attach property to prevent others from doing so, and'then providing for its full payment in the assignment, is a palpable fraud.</p> <p>2. The assignees themselves are among the creditors preferred in the assignment.</p> <p>II. If the assignments are void, it has never been seriously contended that the assignees were not trustees; but the amount has been a matter of controversy.</p> <p>Slack & Marsh insist thattheyhave the right to have the amount of the $1,800 note deducted from the amount of personal property in their hands.</p> <p>We insist they have no such right. Their disclosure shows that the property was placed in their joint possession, and if they had a bona fide demand, jointly due to them from Hapgood & Carlisle, they might deduct it, but not their separate demands. Compiled Statutes, 263, § 51.</p> <p>If the note is void as against creditors, then creditors cannot be prejudiced by it.</p> <p>If the note be not void, still it affords no rule for any deduction; it was not given for the sum of $1,800, due from the assignors to Slack, hut for a liability then contingent, or which he was thereafter to incur by way of being surety for them; and if he would have a deduction on account of the note, he must show how far he became liable before the service of this process upon him, and how much he has actually paid thereon.</p> <p>A large amount of real estate, much more than enough to secure Slack for his liabilities, was deeded to him, and he should be referred to that for his security.</p> <p>Slack & Marsh disclose that they received personal property of the value of . $1,320,30</p> <p>Also, ■ $161,53</p> <p>$1,481,83</p> <p>Vide Schedules A. and C. Besides numerous small sums, and the use of , the real estate, consisting of farms, mills, &c., valued at $3,300.</p> <p>A large share of the personal property had been sold in 1845, and interest should be added.</p> <p>Company creditors may attach the individual property of any of the partners to secure their debts.</p> <p>Individual creditors may also attach the company property to secure their debts. Reed § Root v. Shepardson, 2 Vt. 120. Bard-well v. Perry et al, 19 Vt. 292.</p> <p>III. We do not contend that Collins & Holden are trustees for the property taken from them on the execution's, unless these executions are void.</p> <p>The executions are clearly not void. They were founded upon good and valid final judgments against the defendant, and rendered upon default.</p> <p>But suppose the executions issued prematurely; still they are not void, but are good until set aside, and this the trustees can never do. Stamford v. Barney, 1 Aik. 321. Fletcher v. Mott, 1 Aik. 339. Vandaltin v. Soper, 2 Aik. 245. Allen v. Carpenter, 7 Vt. 397. Spring v. Ayer and Tr., 22 Vt. 516.</p> <p>We insist that when a final judgment is rendered in the County Court against the defendant, and the trustees carry the question of their being trustees to the Supreme Court, it does not carry the judgment against the defendant with it. If so, this court should affirm the judgment of the County Court, which we do not find any statute authorizing this court to do.</p> <p>We think this court should remand the cause to the County Court for execution; but as this is a mere question of practice, and the plaintiff can have but one satisfaction, perhaps it is not a question of much importance.</p> <p>Collins & Holden admit that they had personal property to the amount of $927,47</p> <p>Received from sheep and advances, 365,50</p> <p>Avails of real estate in 1843, 89,14</p> <p>Do. do. 1844, half, 43,12</p> <p>$1,425,23</p> <p>Deduct property taken on execution, 547,59</p> <p>Leaves $877,64</p> <p>Interest to be added.</p>

<p>Trespass quare clausum fregit. Plea, the general issue, and; trial by the court.</p> <p>The plaintiff, on trial, offered evidence tending to prove that the* defendants, by one Sewall F. Belknap, who had contracted to-construct their railroad, commenced about the first day of March,,. 1846, blasting a rock in the line of the said road, and which if was necessary to blast out, in order to construct their road over it, and continued blasting said rock until it was sufficiently got out,\ which was about the first day of January, 1847; that in doing: said blasting, the stones were thrown by the blasts over the adtjoining lands of the plaintiff, lying east of said rock, and between! the line of said railroad and Connecticut river; that many of the stones so blasted out were embedded in the plaintiff’s land, and that the stones so embedded were not subsequently taken away by the defendants, and were a damage to said land. The evidence also tended to show that the defendants had subsequently taken away all of the said stones so blasted upon the plaintiff’s land, except those so embedded; that the last taking away was in the spring of 1850, except a certain part which lay in the immediate vicinity of the said road; that these are still upon the land, and above the surface, covering about one-half acre of the plaintiff’s land. That said Belknap, for the purpose of constructing said road, occupied, through the spring of 1846 and the season, the, land of the plaintiff, for a road on both sides of the said railroad, and the plaintiff claimed damage therefor.</p> <p>The defendants, in their defence, gave in evidence the following matter:</p> <p>1. Their act of incorporation.</p> <p>2. The location of their road.</p> <p>3. A deed, from the plaintiff to the defendants, of the land taken by the defendants for the purpose of building their road thereon.</p> <p>They also offered testimony, tending to prove that they let out the construction of their road, to the said Sewall F. Belknap, who by himself or agents blasted the said rock, and performed the work of constructing said railroad through and over the lands of the plaintiff; that the rock, in blasting which, the stones were thrown over and upon the land of the plaintiff, was situated on the land embraced in the award, in favor of the plaintiff, and against the defendants.</p> <p>That the rock was nearly perpendicular, the said railroad being laid bn the east side of the said rock, and over part of the same, that the stones thus blasted out were necessarily thrown over, and upon the land of the plaintiff, lying east of the said rock, which is the locus in quo.</p> <p>The defendants also offered testimony, tending to prove that the said Belknap had settled with the plaintiff for the injury done to the plaintiff’s crops, for the two seasons after the work was commenced upon plaintiff’s land.</p> <p>The foregoing evidence was introduced without objection, and under some agreement between the parties, that it should have the same effect, as if special pleas had been pleaded, or notice given to authorize the admission, and the court below so treated it.</p> <p>On this evidence, the defendants contended that the plaintiff could not recover, and made the following objections, to wit:</p> <p>1. That if any action would lie against the defendants, it should have been trespass on the case, and not this action.</p> <p>2. That the award and payment thereof necessarily covered all claim in law, for the damage proved by the plaintiff.</p> <p>3. That if it did not embrace all claim, it did for all injuries committed before the making of the award.</p> <p>4. That the defendants were not liable for the trespasses complained of, but that the parties who committed the acts Were alone liable.</p> <p>5. That the plaintiff was not entitled to recover for any damage done, except such as was done within the period of time laid in- his declaration, or else that he must be confined to a single act.</p> <p>The County Court, May Term, 1852, — Collamek, J., presiding, — overruled the defendants’ objections, and held that the defendants were liable, and rendered judgment for the- plaintiff to recover of the defendants one hundred dollars for permanent damage done the plaintiff’s land, by throwing the stones in blasting, which had not been taken off in 1850. Twenty dollars for injury to and loss of crops, by reason of permitting all of said stones to' remain on said land through the season of 1849. And twenty dollars for damage done said land, by using the same for the road, and $16,80 interest. Said sums amounting in all to $15-6,80.</p> <p>To all which decisions the defendants excepted.</p> <p>I. The act of incorporation, and the location of the road over plaintiff’s land, showed that the defendants were authorized by law to enter upon the plaintiff’s land, and to do the acts they did do by Belknap, and that they could not be made liable as trespassers for doing them.</p> <p>But it may be contended that the authority thus given by law to enter, See., will only protect the defendants when they strictly pursue the authority thus given; that in this instance they did not, before entry, take the necessary previous measures to protect themselves, for the reason that the case shows that they did not previously agree with the plaintiff, as to the amount of his land damages, nor have a previous license to enter.</p> <p>Granting all this to he true, still we contend that the exceptions disclose that a.sufficient defence was proved.</p> <p>The award was made on the first day of October 1846, and the payment of it on the 29th day of December of the same year. The acts complained of were committed, a part before and a part after making the award; the award and the payment of it is a justification of all acts proved after making the award, and a satisfaction of all acts proved to have been done previous thereto. All this inevitably follows, if the commissioners, in making the award, had the power to take into consideration these matters.</p> <p>It is clear that the commissioners did possess the power. See the act of incorporation, section 7. If they had the power, the legal presumption is that they exercised it; if they did not exercise it, as their jurisdiction was exclusive, the party is without remedy, unless by appeal, or revising their decision.</p> <p>So far, then, as damages were claimed and allowed in the court below, for any of the acts proved after the making of the award, the award and the receipt are a sufficient answer. The judgment thus far was clearly erroneous.</p> <p>II. It was a matter within the jurisdiction of the commissioners; it is not shown that they did not exert their full powers. Most of the acts complained of had been done at the time. They took a view of the premises and saw the extent of the damage, and as to the extent of the injury they were the judges; and whether they have allowed too much or too little damages, is not material.</p> <p>The damage allowed for the occupation of the road is susceptible of two answers. If it was necessary for the construction of the railroad, then it was damage likely to be sustained, and within the jurisdiction of the commissioners, and is settled for. It cannot be claimed, upon the ground that this must have been unforeseen at the time of making the award, for the road was in actual use then. We therefore conclude by saying, that if the acts of Mr. Belknap were wanton acts, and such as the company were not authorized under their charter to do, the company were not liable.</p> <p>Secondly, That if they were such as they were authorized to do, they were within the jurisdiction of the commissioners, and settled for by the award.</p> <p>The authorities below, decided upon analogous statutes, clearly show the plaintiff is not entitled to recover. Lebanon v. Olcott, 1 Foster (N. H.) 339. Woods v. Wash. Man. Go., 4 Foster, (N.H.) 527. Steele v. Western Inland Loch Wav. Go., 2 Johns. 283.</p> <p>The corporation, in doing this work, were in the exercise of a franchise granted them by the sovereign power; and the rule is well settled, that where they are doing no more than they were authorized by law to do, and exercise due care and skill in doing what they have a right to do, they cannot be made responsible for any damages resulting from their doing the act.</p> <p>1. The acts of the agent, Belknap, are to be treated as the acts of the defendants, and they are answerable therefor. The contract with Belknap was an authority to him to do all that by law, that they could have done.</p> <p>II. The defendants having made use of land of the plaintiff for a road, other than that surveyed by the company, and not having had it appraised by commissioners, they are liable for that injury in this action by force of the statute. Comp. Stat. 197, § 30. Baxter v. Vt. Gent. P. It. Go., 22 Yt. 365.</p> <p>III. The damages complained of, and for which judgment was rendered, were not embraced in the award. The commissioners are authorized by law, to appraise all damages the owner may have sustained, or shall be likely to sustain, by the occupation of the land taken for the purposes of the construction of the road. And any damage that would necessarily result by or from such occupation of the six rods only. Acts of 1843, p. 46. .Welford on Railways, 197-8. Babcock v. Western Railroad Go., 9 Metcalf, 555.</p> <p>It is clear, that in the absence of any showing to the contrary, the award only embraced such damages as would necessarily arise in such occupation of the land so taken.</p> <p>The statute ought to receive a liberal construction in regard to compensation to the land owner. Welford on Railways 64, § 67.</p> <p>If that be so, then the defendants having procured no appraisal, we are entitled to sue in this action.</p> <p>Even if the commissioners are supposed to have appraised such damage as the company would necessarily occasion in blasting, yet for suffering the stone to remain upon the land, no such appraisal was made, and the defendants are trespassers ab initio ; and for this, trespass is the proper remedy.</p>

<p>This was an indictment for impeding an officer, and was as follows, after the formal part: “that Alanson Burt, &c., of, &c., on “the second day of January, A. D. 1852, with force and arms, at “ Newbury aforesaid, in and upon one Andrew Renfrew, then and “ there being, constable and collector for the town of Newbury “ aforesaid, under the authority of this state, and in the execution “ of his said office, then and there also being, an assault did make, “ and him the said Andrew Renfrew, so being constable and collect- “ or as aforesaid, and in the execution of his said office, did impede “ and hinder in the execution of his said office, contrary to the “ form, force and effect of the statute, in such case made and provided, and against the peace and dignity of the state.”</p> <p>To this indictment the defendants demurred.</p> <p>The County Court, January Term, 1853, — Colxamek, J., presiding, — overruled the demurrer. Exceptions by defendants.</p> <p>It is insisted, in the present case, that the crime of hindering and impeding an officer in the discharge of Ms duty, by no means includes and implies an assault. There are a variety of ways in which an officer may be hindered and impeded, without an assault. An assault is not a constituent part, by any necessity, of impeding, as in the case of rape, robbery, false imprisonment and the like. Hence, in an indictment for hindering and impeding, an assault is not a necessary allegation. Although it may, it does not necessarily enter into, and make a constituent part of the offence. Hence it is insisted, if a prosecutor would have the advantage of a common assault, it must be by a special count for that purpose; as an assault, and hindering and impeding, are distinct and separate of-fences, the latter not necessarily including and involving the former.</p> <p>As well might the court hold an indictment good for common assault, charging the defendant for assaulting another and publishing a libel concerning him, or assaulting and selling him ardent spirits without a license, or assaulting another and passing to him counterfeit money, or assaulting and administering an oath to him unlawfully.</p> <p>It is hardly supposable, that because a prosecutor prefaces the crime intended by an assault, the indictment therefore is to be held good for the assault, when the principal crime is insufficiently set forth, unless such crime embraces, includes, or necessarily implies the assault.</p> <p>In the present case, the indictment was manifestly intended for hindering and impeding ; and though prefaced with an assaidt, it has not the merit of alleging that thereby, or by reason of the assaidt, the officer was hindered and impeded.</p> <p>The second count in State v. Downer et al., 8 Yt. 424, was a much better charge than the present, either for an assault or for impeding, but it was held bad by the court on motion, in arrest. That count contained all the elements of an assault and battery, yet it was predicated on the statute for hindering and impeding, and manifestly designed for that offence, it was held bad. In that case, there was a count in common form, for an aggravated assault, at common law, which saved the indictment. In this case there is none, and must therefore, for the foregoing reasons, and upon the principles settled in State v. Downer, fall before the demurrer.</p> <p>This indictment, containing but one count, is subject to the objection of being double, embracing an assault, and the crime of hindering and impeding, two distinct offences in one count, and the greater not necessarily embracing or implying the latter. Regina v. Reid et al., 1 E. L. & E. 595. Regina v. Baker, 47 E. C. L. 253. Regina v. Crampton, 41 E. C. L. 188. Regina v. Draper, 47 E. C. L. 174. State v. Nelson, 8 N. H. 163. ’Commonwealth v. Symonds, 2 Mass. 163. Rex v. Osmer, 5 East. 304. In the case, State v. Rowell et al., decided by this court in 1843, (not reported,) there was a far better indictment, for assaulting and impeding an officer, than in the present case, and judgment was arrested.</p> <p>It is submitted, that if the indictment in this case is good for an assault, though not good for the higher offence of impeding an officer, in that case the demurrer was rightly overruled.</p> <p>This indictment charges an offence at common law, and also by statute. Comp. Stat. Chap. 107, § 1.</p> <p>It is a transcript (except that the blanks are filled) of No. 218 of Aiken’s Forms.</p> <p>Suppose the pleader only intended to charge a common assault. Would a demurrer lie, because he did not charge an impeding under the statute? If so, by what rule of law? As well demur because the indictment did not charge arson or murder.</p> <p>This indictment is in substance and legal effect the same, and the same in form, as the first count in the case State v. Downer § Fuller, 8 Yt. 426, except that charged assault and battery, and this only an assault.</p>

<p> Action on the case. Liability of a party for injuries occasioned, by his neglect. Plea in bar. </p> <p>A town is not precluded, by one recovery against one, for damages sustained by his neglect, from all future recovery for damages sustained by reason of the same neglect, if the damage is several.</p> <p>And where A. and his wife were injured at the same time in consequonce of the insufficiency of a highway, which insufficiency was occasioned by the neglect of the defendants, and A. recovered in an action against the town, for the injury to himself and carnage, and the town recovered the same of defendants, and afterwards A. brought his action against the town for the injury to his -wife, and recovered, it was held, in an action by the town against the defendants, to recover the amount paid A. by reason of his recovery for the injury to his wife, that the first recovery of the town against the defendants, though for the same neglect, was no bar to the second suit.</p> <p>It was also held, that each successive recovery against the town constituted a perfect cause of action against the defendants, and that the injury was at the same tíme, in the same carriage, and of course under the same circumstances, could make no difference; and that it would be the same as if it occurred on different days, from the same specific neglect of the defendants; for eaoh injury constitutes, when the town are legally fixed with the burden, a distinct, complete and independent cause of action.</p>

<p>Book Account. Judgment to account was rendered in the County Court, and an auditor was appointed, who reported the following facts:</p> <p>That the plaintiffs, in September, 1851, wrote to the defendant for money, in payment of their account against him, and received from the defendant in reply, a proposition to pay seventy-five per cent, for a full discharge of the whole claim. That the plaintiffs then directed their agent, George W. Pratt, to go to the defendant’s residence in Fairlee, and collect or secure them debt. That Pratt arrived at defendant’s residence on the 10th day of September, 1851, and the defendant then claimed that he was unable to meet the claim; but proposed that he would pay four hundred dollars in money, and give his note for seventy-five per cent of the balance ; this Pratt declined to do, and told defendant that he was not authorized to compromise the debt.</p> <p>That on the 11th day of September, Pratt procured a writ upon said account, and put the same into the hands of an officer, who was unable to secure the whole debt, but attached property to an amount less than five hundred dollars ; that after the attachment, the defendant proposed to give Pratt five hundred dollars in full payment and discharge of the whole claim, and Pratt, after considerable debate, consented and agreed to do so; and accordingly, on the said 11th day of September, 1851, executed and delivered to the defendant the following receipt:</p> <p>“Received, West Fairlee, Sept. 11,1851, of M. M. Follett,five “ hundred dollars, in full of debts, dues, demands and costs to this “date. Nicholas Goodwin & Co.</p> <p> By George W. Pratt." </p> <p>And the defendant paid the said sum of five hundred dollars to said Pratt, and also paid the officer his fees, amounting to about two dollars. The auditor found the sum due plaintiffs to be $987,-47, if said receipt did not bar the same.</p> <p>The County Court, June Term, 1852, — Poland, J., presiding,— rendered judgment on the report for the sum reported by the auditor. To which the defendant excepted.</p> <p>I. When the plaintiffs wrote to the defendant, in Sept. 1851, for pay, the defendant’s answer was, that he could pay them seventy-five per cent for a full discharge of the whole claim. Now on this, as lord Coke says, note two things: 1. Notice to plaintiffs that defendant could pay but seventy-five cents on the dollar, and that for a full discharge. 2. That with this information from defendant, plaintiffs sent Pratt “ to collect or secure the debt: to get the money or security.” To secure this debt, plaintiffs, on the 11th of Sept., by their agent, Pratt, commenced a suit; the officer was unable to secure the debt — all the property of defendant, that could be reached by attachment, was less than five hundred dollars. Does anybody believe, then, Pratt had not a special authority to compromise ? If he had not, shall the plaintiffs, through his excess or abuse of authority, by a direct fraud on the defendant, take advantage of Pratt’s rascality, pocket the avails, and repudiate his other acts ? It should not be so.' Hatch v. Taylor, 10 N. H. 538. Fitzsimmons v. Joslyn, 21 Yt. 129.</p> <p>Now the attachment being made, the property removed, and in the custody of the officer, out of the power of the defendant, it is agreed that the writ shall be abandoned; the defendant takes his property where it was left by the officer — defendant to pay the service of the writ and five hundred dollars in cash in full discharge ; these things are done ; all the bills receipted — a general receipt executed by Pratt for plaintiff; this, we insist, is a new consideration — an adjustment of a disputed claim' — an accord and satisfaction executed. It can be nothing else.</p> <p>II. Was this such a disputable claim, as that the settlement of it' by defendant as he did, will bring the case within the principle, that the settlement of an unliquidated demand by the parties, at an agreed sum less than set up with payment, is an accord and satisfaction? We insist it is. 2 Greenleaf’s Evidence, sect. 28.</p> <p>Note to Cumber v. Wane, 1 Smith’s Leading Cases, 320. Babcock Sr Bussell v. Hawkins, 23 Vt. 561. Me Glynn v. Billings, 16 Vt. 329. McDaniels v. Lapham et al., 21 Vt. 222.</p> <p>III. Was the acceptance by the plaintiffs, through their agent, Pratt, of the sum so paid by the defendant to said Pratt, and when received, the retention of the same by them, after being informed by Pratt of what he had done, such a ratification of Pratt’s acts as binds the plaintiffs ? So we claim. Smith’s Mercantile Law 114, chap. 5, sect. 4. Story on Agency, sect. 250, etseq. 2 Green-leaf’s Evidence, sect. 66. 1 Am. Leading Cases 588, Culver v. Ashley, note 591, 592, 593. Bigelow et al. v. Denison, 23 Vt. 564. Johnson v. Jones, U. S. Law Mag. Feb’y, No. 1850, 127.</p> <p>I. The plaintiff’s agent was not authorized to discharge this debt on the payment of a less sum than the full amount.</p> <p>The auditor finds, that the plaintiffs directed him to go to defendant’s residence, collect or secure the debt, to get the money or security. Mr. Pratt told the defendant he was not authorized to compromise the debt.</p> <p>Pratt had no general authority to compromise the debts or claims of the plaintiffs, on the payment of a less sum than the full amount. •The plaintiffs disaffirmed and repudiated the acts of Mr. Pratt in compromising the debt, and immediately commenced an action to recover their claim.</p> <p>■ II. The payment of the officer’s fees, &c., was not such further consideration as would give the receipt any additional force.</p> <p>The auditor finds, that it was not .proved by the terms of the settlement between Pratt and the defendant, that defendant was to pay the officer’s fees; on the other hand, the receipt stipulated that plaintiffs were to pay the costs.</p> <p>The officer’s fees were a legal claim the plaintiffs held against the defendant. If defendant, by agreement or voluntarily, paid the fees, he was only paying a legal claim against himself, and it never could be a consideration to discharge any other claim.</p> <p>III. Payment of part of a debt is no legal satisfaction of the whole debt, though the creditor agrees to receive it in full satisfaction, and actually discharges the whole debt by a receipt in full.</p> <p>It has uniformly been holden that a payment of a part of a debt, by the debtor, when the whole is due, is not and cannot by possibility be a legal consideration for a contract on the part of the creditor, to receive it in full satisfaction of the whole debt. Wright v. Allen, 4 Yt. 572. Shaw v. Clark, 5 Yt. 507. Wheeler v. Wheeler, 11 Vt. 60. Seely et al. v. Spencer, 3 Vt. 334. Dederich v. Le-man, 9 Johns. 355. Mechanic’s Bank v. Hazard, 13 Johns. 353. Johnston v. Beaman, 5 Johns. 269. Seymore v. Minium, 17 Johns. 169. Howe v. Mackay, 5 Pick. 44. Colburn v. Gould, 1 N. II. 279. Chitty on Contracts, 277. 1 Stephens N. P. 291-2. 1 U. S. Digest, 44.</p>

Book Account. The action was originally commenced before a justice of the peace, and came to the County Court by appeal.

The orator alleged in his bill, that on the 24th day of January, 1838, one Amos M. Kimball executed four promissory notes, payable to the Peaslee heirs, so called, and dated the said notes January first, 1838 ; and that the orator endorsed the said notes upon their backs, as surety for said Kimball; that the notes were delivered to the guardian of the said heirs; and on the same 24th day of January, 1838, said notes were secured by mortgage, by said Kimball.

Trover for goods, &c. Plea, the general issue, and trial by jury. • On trial, the plaintiff offered in evidence, two writs of attachment… Held: either by himself, or some person employed by him, actual custody of the “tools and goods” before and up to the time of the attachment of the same by the defendant, he acquired no such interest in or lien upon the same as would enable him to maintain this action; 2d, that unless the plaintiff made a valid attachment of said “ tools…

The orator alleged in his bill, that at the time of the execution of his deed, and the making of the contract with the defendant for the sale of the land, it was made known to the defendant, that the railroad company-had laid out them road and track across the land deeded by the orator to the defendant, and that the damages for crossing said land had been appraised and paid to the orator by the said company.

Indictment for a conspiracy to hinder and impede one Henry Godfry, a deputy sheriff, in the execution of his official duty. The indictment contained three counts; the first and third counts charge a conspiracy to impede the officer; the second count charges a conspiracy to impede the officer, and also an actual impeding. Plea, not guilty, and trial by jury.

Trespass for assault and battery and false imprisonment. The defendants pleaded not guilty, as to the force and arms, or whatever is against the peace, and to the beating, bruising and ill-treatment, and to the residue justified under a warrant of distress for the collection of taxes. The plaintiff filed his replication, to which the defendants demurred.

The declaration filed, was in the common form. The defendant pleaded the general issue, and gave notice of special matter in defence. On the trial by jury, the plaintiff offered in evidence, the note and a mortgage from said Elizur Steele, to secure the payment of said note.

This is an information, filed by tbe State’s Attorney for tbe county of Orange, praying for a writ of quo warranto against the defendants, who are a… Held: that in legal effect, the information puts in issue the rights of the defendants to exercise corporate powers, and their existence as a corporation, within this State, then there is error in bringing it against the corporation by their corporate name. For this reason, leave to file the information should not be granted.

Plea, that the last place of legal settlement of said paupers was not in Richmond, and trial by jury.

Assumpsit, on a promissory note, dated the fifth day of November, A. D. 1840, payable the first day of December, 1847, without interest, for the sum of $200. Plea, the general issue, and trial by jury. On trial, the plaintiff introduced, as a witness, one Joseph Moody, who testified that he had so'me knowledge of Albert G. Green’s buying a farm of the plaintiff, at the price of $1,200 ; said Albert G. told him this, and that he gave notes, without interest.

Action on the case for a conspiracy. The declaration contained three counts; but a synopsis of the third count will sufficient-show the nature of the action.

Action on the case, for damages caused to certain premises in Waterbury. The declaration contained two counts; but the plaintiffs, before the introduction of any testimony, abandoned the first count in the declaration, which the court below permitted them to do, though the defendants objected thereto.

This was an appeal from an award of damages made by railroad commissioners, in favor of the plaintiff, against the Vermont Central Railroad Company. The defendants filed a plea in bar, io which the plaintiff demurred. The County Court, March term, 1852, — Poland, J., presiding, — adjudged that the plea in bar is sufficient. Exceptions by plaintiff.

Book Account, commenced before a justice of tlie peace, and came to the County Court by appeal. Judgment to account was rendered, and an auditor appointed, who reported substantially the following facts: That the plaintiff’s account was for labor of a minor son, Thomas Perlinau; that he performed the labor under a contract made between the minor and defendant.

Ejectment for about twenty acres of land, of lot No. 125, in the second division of the right of Sylvanus Fisk, in Newport. Plea, the general issue, and trial by jury. On trial, the plaintiff offered in evidence: 1. A certified copy of the charter of the town of Newport. 2. A copy of a deed from .Nathaniel P. Sawyer to Jarius Strong, dated October 13th, 1842, of part of said lot No. 125. 3.

Trustee Process, in assumpsit, upon a promissory note dated the first day of September, 1851, for the sum of $215,00 payable on demand, with interest, to the plaintiff, and signed by the defendant, Lorenzo H. Harding. After the service of the said writ upon the defendant and trustees, the said John A. Child commenced a suit against the defendant, and summoned the same trustees, and also attached other property, 'attached in this action.

<p>[In Chancery.]</p> <p> Partnership. Partnership Account. </p> <p>Where the bill, brought to procure a settlement of a partnership account, does not allege any settlement, and it is insisted in the answer, that there has been a full settlement and accounting — held—that this coming in, by way of defence, and the answer in this respect not being responsive to the bill, it cannot be regarded as evidence, but must be regarded in the nature of a plea.</p> <p>It was also held, that as the bill does not alledge any settlement, if the defendants would bar the right of the orators to have an account taken, they must prove the settlement aliunde the answers.</p>

Trespass for a yoke of oxen. Plea, the general issue, and notice that defendant, as duly authorized by two writs of attachment, against one John R. Morse, took said oxen as the property of said Morse, and that judgments were duly rendered in said suits and executions issued, and said oxen thereon legally sold.

<p>[In Chancery.]</p> <p> Bill to Redeem. Tender. Costs. </p> <p>In a bill to redeem, where, upon the hearing, the orator claimed that something should be deducted from the amount due defendant in equity, but made no alie gation in his bill that defendant had received any such rents, and only alledged that defendant threatened to do so, and had actually turned his cattle upon the land, and the bill contained no prayer for any account of such rents, and the orator did not claim to have any such account taken in the Court of Chancery; it was held, that in finding the amount due in equity, no deduction should be made on account of rents and profits received by defendant.</p> <p>And where the orator’s bill to redeem, puts the case upon the ground, that the amount due upon the mortgage has been tendered, and the case showed that the orator did not tender sufficient to pay the amount and the costs, including costs of defendant’s writ of possession and executing the same, it was held, that the tender was insufficient, and that defendant is entitled to his costs in the present proceeding.</p> <p>It was also held, that the costs of the writ of possession, and the executing of it, should be reckoned as much as the other costs.</p>

Book Account. Judgment to account was rendered in the County Court, and auditors were appointed, who reported suhstan tially the following facts: That they found a balance of $208 12 due to the plaintiff, if the plaintiff’s account was not barred by the statute.

This is a motion to discharge tbe rule of reference, and .send tbe case to tbe county court, for trial in court. Tbe case bad been referred and a report made, a portion of wbicb bad béep. set aside. Tbe report and papers in tbe case were not sent to tbe reporter; and are not, perhaps, nesessary to an understanding of tbe question passed upon by tbe court.

Book Account. Judgment to account was rendered in the County Court, and auditors were appointed, who reported substantially as follows: That plaintiff’s account is principally for work on a saw-mill, and amounts to the sum of $169 75; and on plaintiff’s account are two items of credit, to wit: “By cash and sundries, $14 46 ; “by judgment against Ezra Barker, paid, $65 05.” That the plaintiff commenced an action against the said Ezra, one of the defendants on this same…

<p>Appeal from commissioners, in the form of hook account. The County Court appointed an auditor, who reported substantially the following facts :</p> <p>That the plaintiff intermarried with the widow Malona Flint, in 1843, who had real and personal property in her own right; her real estate consisting of a dwelling-house at St. Johnsbury center village, and her personal property consisting of money, demands, and furniture, to the amount of three or four hundred dollars.</p> <p>That soon after their marriage, the plaintiff took up his residence in the house of the said Malona, where they continued to reside together, until her decease in 1850, a period of about seven years and one half. That during the early part of their cohabitation, the plaintiff made considerable improvement on said house and real estate, in finishing off the house, painting, papering, and in building a barn and shed.</p> <p>That the barn was erected on land purchased by the said Malona, after marriage, and paid for by her, out of her separate funds, and deeded directly to her, and towards the building of which she furnished thirty-eight dollars of her private money.</p> <p>That it did not appear that plaintiff claimed or asked for further advances towards the expense of the improvements made; that the plaintiff was in the habit of hiring money of his wife, from time to time, for which he invariably gave her his note, and in this respect, dealt with her as with a stranger.</p> <p>That the premises, after the improvements were made, were worth the yearly rent of seventy-five dollars; but no account was made between the parties, for rent during the said seven and one-half years; that the premises were sufficiently convenient for the said Malona, before the improvements were made, she having but little family and no stock, of any kind.</p> <p>That part of plaintiff’s account was for taxes paid upon the estate, it being set in the grand list to Thomas Pierce and wife.</p> <p>The auditor also reported, that if the court, from these facts, should be of the opinion that plaintiff was entitled to recover, then he found due to the plaintiff the sum of $129 44, being for improvements and taxes paid upon said estate.</p> <p>The County Court, December Term, 1852, — Poland J. presiding, — upon the foregoing facts, adjudged that the plaintiff could not recover, and rendered judgment in favor of the defendant.</p> <p>Exceptions by plaintiff.</p> <p>Let us see how far courts have regarded the consolidation of husband and wife.</p> <p>In Porter et al. v. Bank of Rutland et al., 19 Yt. 410, the court say, that in chancery, whenever the interest of the two conflict, the wife is allowed to bring a suit against the husband, and the husband against the wife, as if they were sole and unmarried. •</p> <p>In Stanwood v. Stanwoód et al., 17 Mass. 57, which was a suit at law, the court determined, that the executors of the plaintiff’s husband were liable to her for the dividends of profits on certain bank shares, which stood in her former name of Sarah Ela.</p> <p>In the 3 P. Williams, a case still more in point, is reported; there the wife, by leave of the husband, had sold, for her own benefit, butter, poultry and similar articles, to the amount of one hundred dollars, which she loaned to her husband; after his death, it was held, that the executor should pay it from the husband’s estate, there being no deficiency of assets.</p> <p>A married woman being administratrix, received a sum of money in that character, which she lent her husband, and took his note with two sureties; held, that after the death of her husband, she might recover against either of the other makers of the note, with interest from the date. Richards v. Richards, 22 E. C. L. 119.</p> <p>The counsel also cited 2 Story’s Equity, §1367,1372, 1373 and 1399.</p> <p>■ The plaintiff, by marriage, became seized of a freehold estate, in the lands of his wife, which must continue, at least, during their joint lives; and until his title was defeated, they were his own. When he made repairs upon the buildings, or additions to them, or erected new buildings, if they were proper for the freehold, and which were attached to it, and contributed to its value, they became a part of the freehold, and must pass with it. 2 Kent’s Com.T30 to 132. 2 Kent’s Com. 345. 1 Selwyn Nisi Pri. 1387. Preston v. Briggs, 16 Vt. 124. Leland Adm’r v. Gassett, 17 Vt. 403.</p> <p>It is well settled, that & femme covert cannot bind herself, by contract with any one; and that at law, no contract can be made, or inferred, between husband and wife, without the intervention of trustees, for they are regarded as one. Shaw v. Thompson, 16 Pick. 198. 1 Bl. Com. 442 — 3. Robinson v. Reynolds et ux.</p> <p>1 Aik. 174. 1 Wheaton’s Selwyn 281-2-3-4-5. 2 Kent Com. 129, 130. Ib. 168, 169. Chit, on Cont. 39, 40. Chit, on Bills, 25 to 27. Fourth Ecclesiastical Society in Middletown v. Mather, 15 Conn. 587.</p> <p>. There is no equity in the plaintiff’s claim. The use of the premises was worth more to the plaintiff than he claims to have expended, on account of them; and the expenses were all for his benefit, and without any expectation of ever receiving or asking anything for them, until since the death of his wife. Bailey v. Bailey, 16 Vt. 656.</p>

Assumpsit for money had and received. The action was brought to recover money, which the defendant had won from one William Decker, a clerk of the plaintiff. Plea, general issue, and trial by jury.

Plea, first, that the said paupers were unduly removed; secondly, that they were not chargeable to the town of Walden, at the date of said order. Trial by jury.

Assumpsit for goods sold and delivered. Plea, general issue, a discharge in bankruptcy, and also the statute of limitations. The defendant replied to the two last pleas. 1. A new promise since the discharge in bankruptcy. 2. A new promise within six years. : -The issues; by agreement of the parties, were tried by the court.

Trustee Process. The action against the principal debtor, was assumpsit, for money had and received.

Book Account. Judgment to account was rendered in the County Court, and an auditor was appointed, who reported the following facts: That account of plaintiff was for cattle, and that early in the spring of 1851, the defendants, Cobleigh, and Babcock, entered into a verbal agreement, for carrying on the butchering business together.

Assumpsit for money had and-received. The defendant plea-' ded the general issue, and also pleaded in offset a judgment recovered against the plaintiff, on the third day of June, 1843, before one Philip Smith, justice of the peace, for- $99 86 damages and $1 95 costs. The plea in-offset contained the general counts in assumpsit also,- The plaintiff replied to the general counts non assumpsit, and to the plea in offset mil tiel record. The case was tried by jury.

Audita Querela brought to set aside a judgment recovered by said Hadley, against the plaintiff, before a justice of the peace, on the 26th day of January, 1850. The plaintiff also filed an additional count, to which the defendant objected, and excepted. The defendant pleaded the general issue, and the case was tried by jury.

Petition brought to vacate a judgment rendered by a justice of the peace, by default, in favor of the petitionee, and against the petitioner.

Assumpsit for money had and received. Plea, general issue, and trial by jury. The plaintiff offered in evidence a note dated May 19, 1845, for the sum of $67 39, payable on demand, with interest, signed by the defendant, and payable to the defendant’s order, on the back of which was the defendant’s name endorsed in blank, and also an endorsement of five dollars, July 12, 1845.

<p>Trespass. Attachment of property, fyc.</p> <p>Where the plaintiff attached a quantity of starch, which was stored by the'debtor in the barn of a third person, under an agreement that said third person should have a lien upon the same for the security of a debt, as an officer by virtue of certain writs against the said debtor ; and at the time of said attachment the plaintiff did not move or take possession of the said starch, except by notifying said third person that he had attached it; it was held, that the plaintiff had not acquired any such property in the starch, as would enable him to maintain tres pass therefor, against one who subsequently attached and took possession of the same, on other writs of attachment.</p> <p>Property pawned, or mortgaged may be attached on trustee process, by payingthe amount for which said personal property is so held as security.</p>

<p>Ejectment for certain lands in Brunswick. Plea, the general issue, and trial by jury.</p> <p>On trial, the plaintiff offered in evidence,</p> <p>1. A copy of a deed from Annah Hawkins his intestate to John Cranmore of the premises described in the declaration, dated the 23d day of December, 1831, to which deed there were certain conditions, for the support of one Elizabeth Eyder, also to deliver to the said Annah Hawkins one-fourth of the crops raised on said farm during her life, and also to pay to Joseph Hawkins, son of the said Annah Hawkins, one hundred dollars at her, the said Annah’s decease, and if all said conditions were performed, then said deed was to be-in full force, otherwise to be void and of no effect.</p> <p>2. A copy of a deed from said John Cranmore to one Michael Flynn, dated the 9th day of August, 1839, of the same premises, to which deed were added, in substance, like conditions to those in the deed above named.</p> <p>3. A copy of a deed from Eeuben C. Benton, assignee in bankruptcy of the said Michael Flynn, to one Solomon Downer, dated the 25th day of October, 1843, of said Flynn’s interest in said premises.</p> <p>4. A deed from Solomon Downer to one John D. French, of the same premises and other lands, dated the 7 th day of August, 1847, conditioned to be good on the payment of a note for $1500.</p> <p>5. A deed from Joseph Hawkins to one Isaac Eichardson and William Heywood, Jr., dated the 11th day of October, 1839, of certain lands, and also of his right to the said one hundred dollars, reserved to him, in the said deed from Annah Hawkins to John Cranmore.</p> <p>6. A deed from Isaac Eichardson to William Heywood, Jr., of the same premises, dated the 26th day of April, 1843.</p> <p>7. A deed of the same premise's, from said William Heywood, Jr., to David S. Austin, the plaintiff, dated the 15th day of December, 1843.</p> <p>All the above deeds were received subject to all questions, as to their legal effect.</p> <p>The plaintiff’s testimony tended further to prove, that Mrs. An-nah Hawkins continued to live on the premises in question, up to the time of her death, which occurred in 1840; but no testimony was offered upon either side, as to whether she received the share of the crops &c., reserved in the condition of her deed to said Cranmore. It appeared that said Elizabeth Ryder had not been supported on said place; but the evidence tended to show, that she resided elsewhere from choice, and there was no evidence of any thing having been paid for her support by the plaintiff or his intestate, except that plaintiff once paid her two dollars, but under what circumstances did not appear. The plaintiff offered no evidence as to the $100, to be paid to Joseph Hawkins, whether the same had been paid or not. It appeared, that John D. French went into possession of the premises under his deed from Downer, and had since occupied the same; but there was no evidence of any actual possession by Downer since said deed ; and it also appeared that David B. French had only been upon the premises, as the tenant, or hired man of the said John D. French,</p> <p>The defendant, Downer, then offered in evidence a copy of an account in favor of said Michael Flynn against the said Joseph Hawkins, amounting to $98 55, and an assignment of the same by said R. C. Benton, assignee of said Flynn, to Solomon Downer August 2d, 1843; and also proved by said Benton, that this account was among the assetts of said Flynn, and was sold at the sale of Flynn’s effects to Mr. Downer, that the account was upon Flynn’s book of accounts, that there were credits on the account reducing the balance to about fifty-six dollars, which sum said Flynn claimed to be due on said account.</p> <p>The defendant also gave evidence tending to prove, that one item for pork, charged in said account, was correct, and that the same was delivered by said Flynn to said Joseph Hawkins, with the agreement that the same should apply towards payment of the said $100, reserved in Annah Hawkins’ deed to said Cranmore. There was no evidence in relation to the other items of said account. ' The defendant, Downer, also offered in evidence, a note signed'by said Joseph Hawkins, payable to said Michael Flynn, dated the fourth day of June, 1840, for the sum of fifty-five dollars, payable in five years from date with interest annually.</p> <p>It also appeared that said Hawkins in 1843 or 1844, left the country and has never since returned. The defendant also offered to prove, that said Hawkins, some time between 1841, and the time he so left the country, admitted that he had received the amount of the said $100, secured in his mother’s deed. The plaintiff objected to this evidence, and the court excluded the same; to which decision the defendant excepted.</p> <p>There was no evidence to show that said Joseph Hawkins had assigned his claim to said $100, except that at the assignee’s sale of said Flynn’s effects, August first, 1843, Mr. Downer and Mr. Heywood were both present, and Mr. Heywood informed Downer that he had a deed of it from said Hawkins, and claimed the $100, of Downer, and that they had some conversation about a settlement of it, but what, did not appear.</p> <p>The plaintiff did not claim to have shown David B. French in possession, and a verdict was rendered in his favor.</p> <p>The defendants, Downer, and John D. French insisted that plaintiff could not recover.</p> <p>1. Because he had not shown his appointment as administrator.</p> <p>2. Because he had not shown any breach of the condition, in the deed from Annah Hawkins to said Cranmore, and that the burden of proof was upon the plaintiff to show, that said $100, reserved to said Joseph Hawkins had not been paid.</p> <p>3. That if said condition had not. been performed the plaintiff had no such title, as would sustain this action. ,</p> <p>4. That there was so much evidence tending to prove that said $100 had been paid, as with the lapse of time authorized the defendants, to have the case submitted to the jury to say whether it had or had not been paid.</p> <p>5. That the evidence of possession in Downer was not such as to make him liable in this action.</p> <p>The court declined so to instruct the jury; but instructed them, that under the plea, in this case, the plaintiff was not bound to prove his appointment, as administrator; that the burden of proof was on the defendants, to show that the $100, named in the condition of said deed, had been paid; and that plaintiff had shown such a titlS, as would support this action; and that Downer claimed under his deed to J. D. French, was sufficient evidence of possession, to subject him to this action; that there was no sufficient evidence tending to prove that said $100, had been paid for them to consider.</p> <p>. The jury returned a verdict for the plaintiff against Downer and J. D. French.</p> <p>To the charge and refusal to charge, as requested, the defendants excepted.</p> <p>Claimed that there was evidence tending to show that the condition of the deed from Annah Hawkins to said John Cranmore was performed; and that the case, upon that evidence should have been submitted to the jury.</p> <p>That the $100, became due to Joseph Hawkins, at the decease of his mother, which occurred in 1840. The assignment of this claim to Richardson & Heywood was made in 1839, but no notice was given to Downer until 1843, and the evidence tended to show, that before notice of the assignment was given, the same had been paid to Joseph Hawkins.</p> <p>The admissions of said Hawkins should have been received and submitted to the jury, as tending to show, that a portion of the condition of said deed had been performed.</p> <p>1. One count in the declaration being founded on the seizin of the intestate, it was not necessary to prove the appointment of the plaintiff as administrator, the general issue being an admission of that fact. Aldis• v. Burdick, 8 Yt. 21. 2 Greenleaf’s Eve. 388.</p> <p>The second objection of the defendant is founded upon grounds, that would require the plaintiff to prove a negative.</p> <p>Upon the third objection, see case of Buckminster v. Needham,, 22 Vt. 617.</p> <p>There was no evidence tending to prove more than a very small part of the $100, ever paid.</p> <p>Downer was the landlord, and as such must be joined by our statute. Comp. Stat. chap. 38 § 1.</p>

Ejectment for certain land in Guildhall, which was described in the declaration. Plea, the general issue, and trial by jury. The plaintiffs claimed title to the said land, by virtue of a recovery of a judgment in their favor, for $475 37 against the defendant, James Long; upon which judgment the plaintiffs took out execution and levied the same upon said land, and set the same off to satisfy said execution, on the 16th day of Novembei’, 1846.

Petition -for a new-trial, on the ground of surprise, in the ruling of the (Court, and newly discovered evidence. The County .Court, — Poland, J. presiding, — dismissed the petition. To which decision fthe plaintiffs excepted. fl. Surprise has ever been considered-a good c-ause, for the granting The particular consideration in this case is, whether the matter of surprise is -of that extent and character, that will authorize the court to interpose ?

Assumpsit for money had and received and money paid. Held: that the evidence was proper to he submitted to the jury to show an original liability of the defendants to the plaintiff; and that as the proof of the original indebtedness, consisted wholly of declarations made by the defendants, within six years before the suit was brought, said declarations, if the jury were satisfied that they…

Trover for four carding engines. Plea, general issue, and trial by jury. i On the trial, the plaintiff offered in evidence a mortgage deed,, of said carding engines, executed hy Jeremiah Essex, Geo..

Trustee Process. Tbe declaration is upon a note made by tbe defendant, John C. Morrison, to tbe plaintiffs, dated at New York, tbe 16tb day of October, 1850, for $897 98, and payable to tbe plaintiff’s order six months from date. Sidney Moody, tbe trustee, disclosed that be was indebted to tbe defendant, in tbe sum of two hundred and seventy-four dollars and fifty-four cents, and that said sum is now due to said Morrison and payable in money.

The orator brought this bill to redeem certain premises in the village of Bellows Falls.

Trustee Process. The trustee disclosed'that he purchased an undivided half of a farm, of the said Israel G. Smith, in April, 1849, in Sharon, and all the stock and tools upon said farm, belonging to said Israel G. j that he was to pay for said farm $1,250, and for said stock and tools about the sum of $450, the exact amount cannot state.

Book Account, the action was originally commenced before a Justice of the Peace, and came to the County Court by appeal. The appeal was entered in the County Court, November Term, 1851, and the plaintiffs filed their motion to dismiss the appeal, for reasons appearing upon the face of the justice records.

<p>Indictment for a breach of the license law. There were sev«ral counts in the indictment, but they were similar in all respects, except as to the time of selling, and after the formal part, were in the form following: “that Harvey H. Woodward of Royalton, in “ said County of Windsor, on the first day of January, A. D. 1851, “ became a dealer in intoxicating liquors at said Royalton, without “ haying a license therefor in force, and did then and there sell and “furnish intoxicating liquors in a less quantity than twenty gallons, “ contrary to the form, force, and effect of the statute in such case “made and provided, and against the peace and dignity of the “ State.” Plea, not guilty, and trial by jury.</p> <p>The jury returned a verdict for the State. After verdict and before judgment, the respondent filed his motion in arrest of judgment, for the insufficiency of the indictment.</p> <p>The County Court, December Term, 1852, — Collamer, ' J., presiding, — overruled the motion in arrest.</p> <p>Exceptions by respondent.</p> <p>The indictment is predicated on sec. 7, of.chap. 87 of the Comp. Stat. Each count in the indictment is double. 1. Stating a violation of sec. 7 of the law, in the form and words prescribed by the act itself, in sec. 12. This part of the count comprises all the averments necessary to entitle the government to show either of the two offences designated in sec. 7, (but not both under a single count,) and there cannot exist a doubt, that such was the intent of the legislature.</p> <p>But the count goes on, and sets forth, as fully and descriptively as is necessary for an independent count, the offence last named in sec. 7, to wit, a sale of less than twenty gallons. Thus charging in each count two several offences, with different penalties. 1 Chit. Crim. Law 247, (note.) State v. Nelson, 8 N. H. 163. The legislature having prescribed the form of the indictment, it must be followed. The will of the legislature, constitutionally exercised, being supreme, supersedes legal rules at variance with it.</p> <p>No part of the count can be treated as surplusage, because either part equally describes fully a distinct offence created by the act, as before shown.</p> <p>This mode of allegation in indictments, in analogous cases has ■ been too often held good to be now questioned. If tbe allegation bad been in tbe disjunctive instead of tbe conjunctive, it might have been bad. Wheaton’s Ain. Crim. Law 501, 120, 135, 111, and cases cited.</p> <p>If the form given by statute is good, this indictment must be good, as the allegations may be entirely rejected as surplusage if necessary. Wheaton’s Am. C. L. 228.</p>

<p>Trespass on the Case, to recover damages, winch the plaintiff sustained, by the falling of a staging erected for his own use, in .consequence of the defendant having removed one of the staging poles.</p> <p>Plea, the general issue, and trial by jury.</p> <p>On the trial, the plaintiff offered evidence, tending to prove, that the staging named in the declaration, and which was affixed to the barn of a Mr. Wilder, was weakened and rendered insecure, by reason of the defendant removing, in the plaintiff’s absence, and without his knowledge, therefrom a wooden bar, which formed one of the supports of said staging.</p> <p>That the plaintiff had erected said staging for the temporary purpose of shingling said barn, or one side thereof, intending to remove said erection, when said temporary purpose was effected; and that in putting up said staging, had supported the same by upright staging-poles, having horizontal thwarts or sleepers running from the poles to the barn. That the bar in question, had been taken by tbe plaintiff without the defendant’s knowledge, and thrust into a hole accidentally existing in the barn near tbe eaves, and its other end rested on the ground, so that said bar was in a slanting position, crossing one of the thwarts and one of the poles in contact with them; and that the intersection of the bar and thwart was about two feet from tbe end of tbe bar, and that they were tacked together at that place by a simple nail.</p> <p>The plaintiff introduced further testimony, tending to prove, that bodily injury happened to him, by reason of the said weakening of said staging, and his going upon the same, without knowing of said change in its condition. That said staging was about twelve feet long.</p> <p>The defendant then offered evidence, tending to prove, that said bar was his property and belonged to a bar-way in an adjoining lot, and that it had been taken from his premises, and used as aforesaid, by the plaintiff, without the defendant’s permission.</p> <p>The evidence of the plaintiff, also tended to prove, that reasonable effort was not made by defendant, if such effort was required by law, to give notice to the plaintiff of the' removal of said bar from said staging, or of the unsafe condition of the same, by reason of said removal.</p> <p>The court instructed the jury, that if they found all the facts, which the plaintiff’s evidence tended to prove; still the defendant would be entitled to recover, in the event of their finding that the bar aforesaid was the defendant’s property, and that it was taken and used by the plaintiff as aforesaid, without the defendant’s permission, and that defendant did no more to the plaintiff’s staging, than was necessary to recaption of said bar.' The jury returned a verdict for defendant.</p> <p>To the above charge of the court, the plaintiff excepted.</p> <p>1. On the facts, which the evidence of the plaintiff tended to prove, the bar was his property, at the time it was táken from the staging, on the ground of “ accession.” Bac. Abr. 580. 2 Kent’s Com. 297. Stevens v. Briggs 5 Pick. 177. Gross v. Marston. 17 Yt 540. And it was error in the court to omit so to charge, for it was a point material to the decision of the case, and one upon which there was evidence.</p> <p>2. In recapturing the bar, the defendant was bound not only to do no unnecessary damage, in the act of retaking, but was farther bound to use all that care and dilligence, which considerate men of ordinary thoughtfulness and humanity, would not fail to use under similar circumstances, to prevent an injury, which the act of taking itself portended as the proximate and probable consequence of the act. Sic utere iuo ut alienum non laedas.</p> <p>White had a right to use the staging, though supported in part by the defendant’s bar, and therein to be secure in his life and limbs; still the defendant had the right of recapture; but conflict, in the legal exercise of these rights, could be avoided, by subjecting the exercise of both of them to the law of ordinary care throughout. One impounding cattle in a private pound, must feed them — if in special pound overt, must give notice. Blk. Com. 12. Clark v Adams, 18 Yt. 425. Davis v. Campbell, 23 Yt. 236. 9 E. C. L, 280.</p> <p>1. The defendant had the right to recapture the bar.</p> <p>1 Once his, it remains so until he either voluntarily parts with it, or it should he taken from him by operation of law. 2. If taken from him wrongfully, he was justified in peaceably retaking it. 3 Black. Com, 3. 1 Dane Abr. 132. Story on Bailments 36, and cases cited. 3. And this property of his in the article, whatever it was remained unchanged by the plaintiff’s wrongful act. If absolute, it remained absolutely his; and no mere wrong of the plaintiff could make it conditional. 4. But the plaintiff’s claim supposes what was absolutely the defendant’s, to become only conditionally his, and that he can only use it, on condition that he shall give notice or make certain efforts to do so.</p> <p>2, The plaintiff’s-view of this case, applies to the absolute owner, the obligations, which the law imposes on bailees.</p> <p>1. What more could he require of us, if the article were Ms, and he had given-a general license to use-it? 2. A horse was actually owned in this neighborhood, which afterwards killed in his stable, at the South, two negroes. Suppose a trespasser rode him off, how much effort does the law exact of the owner, to follow and give notice of the danger ? 3. Is this legal obligation any stronger on the owner than on any other person, who becomes aware of the peril of the wrong doér ? 4. Benevolence and Christian Charity would doubtless suggest in different men, different degrees of effort to save the wrong doer; but this is not a court of benevolence, it is a court of law.</p>

December Term, 1852, Chancellor Pierpoint decreed in substance, that the exception's to receivers reportbe overruled and report accepted and confirmed. That exceptions to the master’s report be overruled and master’s report accepted, and the accounts settled accordingly. That the orator’s bill, except so much as relates to the receiver and accounting, be dismissed with costs, and that the costs of accounting be equally divided between the partners.

The bill was brought by the orator to foreclose a mortgage, dated the 19th day of July, 1845, and to foreclose the equity of redemption, of Daniel Aikens and those claiming under him, of three pieces or parcels of land in Barnard, described in said bill and mortgage, as follows: one piece of about one hundred acres, called the “ Paul Ellis Farm.” One other piece of land containing about one hundred acres known as the “ Lease Lot.” And also a piece of land containing about…

The counsel for plaintiffs filed with his motion an affidavit, setting forth, that at the December term, 1852, of the Windsor County Court, there was pending a petition brought by the plaintiffs, praying for the appointment of commissioners to lay out, and also discontinue, a certain highway in said Hartland; that commissioners were appointed, who decided to lay out the said highway, and discontinue the other as prayed for; that they made report of their proceedings to the…

<p>Appeal from the Court of Chancery. The facts in this ease sufficiently appear in the opinion of the court.</p>

Assumpsit to recover for the building of a highway. Plea, the general issue, and trial hy jury. On trial, the plaintiffs offered in evidence, a bond executed, hy themselves and another, to the town of Rockingham, by the terms of which, they were to build said highway at $150 per rod. They also offered a vote, of said town, accepting the said bond.

Book Account. The writ was returnable before the County Court, December Term, 1852.

Trustee Process. The trustee disclosed in substance, that on or about the 16th day of November, 1850, and in the month of May or June previous, the said Curtis had contracted with the selectmen of… Held: that the note was payable upon a contingency, — that it was not a debt in praesenti, to be discharged in futuro.

Book Account. Judgment to account was rendered in the County Court, and the case was referred to auditors, who reported the following facts: That in December, 1849, John Wright, one of the defendants, who then resided in Boston, Mass., came to Burlington for the purpose of getting up a Railroad Celebration or Jubilee, at said Burlington ; that he stopped at the defendant Hart’s Hotel while there, and had conversation with said Hart, relating to such celebration; and that at…

Ejectment brought to recover the seizen and possession of the second division lot, drawn to the original right of Martin Elmore, in the town of Elmore and county of Lamoille. Plea, general issue, and trial by jury.

This was an action of trespass, to recover the value of plaintiff’s sloop, wrecked in a gale on Lake Champlain under the follow ing circumstances. As long ago as about 1838, there was an insurrection of the French and some other portions of the inhabitants of the Canadas.

<p>Petition for divorce, the facts sufficiently appear in the opinion of the court which was delivered by</p>

Habeas Corpus, on the petition of John B. Langdon, in which petition he set forth, that he was unlawfully imprisoned in the jail at Montpelier, by virtue of a warrant signed by J. Collamer, Chancellor, dated at Woodstock, on the 14th day of July, 1853 ; and that the relator has never been permitted and allowed an opportunity of defending himself, against the charge of disobedience of the injunction of said Chancellor, and that the hearing on said charge, was exparte, and…

Trespass for a quantity of scythes, scythe snaths, forks and hoes. Plea, the general issue, and trial by jury. Upon the trial, the following facts were proved. The plaintiffs are manufacturers, and wholesale dealers, in such articles, as they have sued for, and reside in Littleton, N. II. On the 25th day of November, 1850, the travelling agent of the plaintiffs, called on Messrs.

Ejectment for certain lands in Derby, granted for the support of a county grammar school. • The charter of the Orleans County Grammar School, and the several acts extending and enlarging the same, and the act of 1836, granting certain lands to Craftsbury Academy, were put into the case.

Assumpsit on a promissory note. Plea, the general issue, and trial by jury. On the trial, the plaintiff read in evidence the note described in the declaration; the execution of the note was admitted.

Assumpsit in two counts, tbe first count was as follows: “ For that whereas the defendants, to wit, on the first day of “ November, 1851, and for a long time before and ever since, had “been common carriers of goods, wares and merchandise and cat- “ tie and sheep for hire from Roxbury in the county of Washing- “ ton, to Porters in Cambridge in the Commonwealth of Massa- “ chusetts ; and being such carriers at said Roxbury, to wit, on the “tenth day of November, 1851, did…

<p>Practice. Trustees — when entitled to costs.</p> <p>If the trustee excepts, and fails in the Supreme Court, upon his exceptions, he cannot tax costs, but must pay costs to the plaintiff.</p> <p>But if the creditor excepts to a judgment rendered against the trustee, and by carrying the case into the Supreme Court, gets the judgment modified, the trustee is still entitled to tax costs, inasmuch as he still remained passive, and did not become the actor, in the removal of the case to a higher tribunal.</p> <p>But when the trustee takes proceedings, to remove the case into another court, by exceptions or appeal, he does it at his peril, as respects costs.</p>

<p> Practice. Petition for divorce. </p> <p>In a petition for divorce, for the cause of severity, no particularity of specification is necessary; but if it be for cause of adultery, the petition should set forth the pariiceps, and time and place of committing the offence, and if not particularly set forth in the petition or libel, the libellee will be entitled to specifications before the testimony is taken.</p> <p>But in a case where no such specification can be given, the party relying upon presumptive evidence of guilt -with some unknown person, the court will excuse the party from giving a specification, setting forth the pariiceps and time and place of committing the offence, and only require a statement of the evidence relied upon.</p>

These actions being actions at law, were originally instituted in the State Court, and were removed from that court to this court, on motion of the defendants, under the act of Congress of September 24th, 1789. The actions having been entered in this court, pursuant to the order of removal from the State Court, the plaintiff appeared, and filed their motions to dismiss the actions, and remand them to the State Court, for want of jurisdiction in this court.