Volume 26 — Vermont Reports

<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 in September, 1848, the defendant made a contract with his minor son, Lewis Tyler, who was then about nineteen years of age, upon the consideration of twenty dollars, by which he relinquished to said son all the future earnings of said son up to his majority, and said son promised to take care of himself, and call upon his father for no- further aid.</p> <p>That in October, 1848, the defendant published in the Burlington Sentinel, a newspaper, which then circulated to some extent, in the town of Essex, where the parties resided, a notice, stating said contract, and stating that the defendant would not pay any debts of the son’s contracting thereafter.</p> <p>That Lewis, the son, in pursuance of said contract, left his father’s house in Essex, and worked about on his own account in various places, until just before the time of the first visit of the plaintiff, in October, 1849, when the said Lewis was taken ill, and went to his father’s, the defendant’s house, and continuing ill, on the 17th day of October, 1849, in the absence, and without the knowledge of the defendant, sent one of his brothers, (another son of the defendant,) for the plaintiff, who was a physician. The brother thereupon went to the plaintiff’s house, and the plaintiff being absent, left a general request for the plaintiff to come, professionally, to the house of the defendant, without stating who was sick. The plaintiff on his return soon after, received the message and went to the defendant’s house and found the said Lewis ill, (the defend ant being still absent at said first visit,) and administered to him as his necessities required, upon that occasion and the occasions stated in the account, in good faith, and upon the credit of the defendant, making said charges to the defendant from time to time.</p> <p>That nothing, was said between said Lewis and the plaintiff as to paying for said attendance, nor between the plaintiff and defendant, although the defendant was sometimes at home when the plaintiff came on said visits, nor did the defendant know that the plaintiff was making the said visits on his credit, and that he did not assent to the same; and the said Lewis had no authority in fact, to employ the plaintiff on the credit of the defendant.</p> <p>That the plaintiff had no knowledge of .the said agreement between said defendant and said Lewis, or of said notice published by the said defendant. That at the time the plaintiff made said visits, the said Lewis was a minor, about twenty years old.</p> <p>The County Court accepted the report of the auditor, and rendered judgment thereon for the plaintiff.</p> <p>Exceptions by defendant.</p> <p>Insisted, that the relation existing between the defendant and his minor son, is not alone sufficient to make the former ehargea-. ble for the debts of the latter, even for necessaries. I</p> <p>To render the father liable on the contracts of the son, the same*; facts must be shown as would be required to charge any other persons, viz: that the son had authority, either express or implied, to pledge the credit of the father, or that the father afterwards assented to or adopted the contract; and whether such authority or adoption was shown, was a question of fact exclusively within the province of the auditor. Gordon v. Potter, 17 Yt. 348.. Mortimore v. Wright, 6 M. & W. 482. Bing, on Infancy, 87. (Note.)</p> <p>Insisted, that to the performing of the services, for which a recovery is sought, the assent of the defendant most clearly appears; and the court have but to sustain the doctrine laid down in the 17th Yt.</p> <p>From the report, circumstances appear which fully justified the plaintiff in presuming that he was in the employment of the defendant, and these circumstances Were within the knowledge of the defendant, and it was incumbent upon the defendant to have rebutted the presumption of his assent in some manner, either by word or deed, if he desired to throw off his liability.</p> <p>The case shows, that the credit was given exclusively to the defendant, in good faith-</p>

Ejectment for certain premises in Burlington. Plea, the general issue, and trial by the court. Held: except in Vermont, that even the first mortgagee is not entitled to rents or mesne profits, until entry or judgment of foreclosure. 15 Mass. 268. 1 Pick. 87. 19 Pick. 525. 25 Pick. 341. 6 Barbour, 133. 8 Pick. 459. 5 Carr. 556. 1 Eng. Law & Equity, 460. 2 Eng. Law & Equity, 342.

Assumpsit on two bills of exchange for $600. each. ■ The ■ declaration contained two counts, the first count was as follows: “ The defendant is attached to answer to the plaintiffs in a plea “ of the case for that one Caleb E. Barton heretofore, to wit, on “the fifth day of October, A. D. 1844, at Charlotte,in said county “ of Chittenden, according to the custom and usage of merchants “ from time immemorial, used and approved of within this State, “ made his certain bill of…

This was an appeal from a decree of the court of probate, for the district of Chittenden, admitting to probate the alleged last will and testament of Mrs. Nancy Robinson, deceased. At the September Term of the County Court — Poland, J., presiding — the case was tried by jury, and a verdict returned in favor of the will.

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

Book Account. Judgment to account was rendered in the County Court, and an auditor was appointed, who returned his report to the County Court.

Trover on an officer’s receipt for property attached on a writ. Plea, the general issue, and trial by jury. On trial, the plaintiff among other things, claimed that he attached the property in question, as sheriff, on a writ in favor of Abbey & Freeman, against said Rhodes and Kennedy, two of the defendants; and that.said property was receipted by the said defendants, and by Bishop, the other defendant, in the usual way in such cases; all which was denied by the defendants.

Assumpsit. In this case the plaintiff relied upon a new promise to avoid the defendant’s plea in bankruptcy.

Debt on bond. Plea non est factum, and special pleas. The facts in the case, are as follows: The plaintiff purchased of one Josephs, water lots, Nos. 55, 56 and apart of lot No. 57, in Burlington,, and agreed to pay for them by building a certain house on lot No. 33.

Action on the case. There weretwo suits, both involving nearly the same question, and both suits were referred to the same referees, under rules of court,… Held: that the change in the plaintiffs’ machinery, as it required no more water, did not effect their rights. They owned the water privilege, except the subordinate right granted defendant for a particular purpose, and could of course apply it to any use not injurious to defendant’s right. Bigelow v. Battle, above cited.

Pbtiíion for a writ ef mandamus, requiring tire defendant, as 'constable and collector of the town of Bolton, to deed certain lands in Bolton sold by him as constable and collector of said town, to the plaintiff, for 'delinquent taxes, &o. The facts sufficiently appear in the opinion of the court.

Assumpsit on the following note, “ For value received in pol- “ icy No. 41650, dated the 8th day of January, 1849, issued by “ the Washington County Mutual Insurance Company, I promise “ to pay said Company the sum of twenty-one dollars in such por- “ tions and at such time or times as the directors of said company “ may, agreeably to their act of incorporation, require. Dated “ the 3d day of January, 1849.

This was a bill of foreclosure predicated upon a mortgage, executed by the defendant, of land the fee of which was in the .wife of defendant, she not having joined with her husband in the deed. The defendant executed the mortgage since the statute of November, 1847. I. The act of 1847, (Comp. Stat. 403 § 15,) is void, as impairing the obligation of the marriage contract.

Book Account. The auditor reported, that in the month of June, 1851, the plaintiff was the owner of a large quantity of wood, then cut and lying on Valcours Island in Lake Champlain. That part of said wood was piled on the east shore of the isl- and on Sloop Bay, so called, and part on the west shore, and a part in the wood and pasture of said island.

<p> Pook Account. Parties. Attornies. Negligence. </p> <p>Where M. was retained, as counsel in certain suits, by the defendant, before M. formed a partnership with E., and the services were performed by M. & E. after the partnership, and this was all known to the defendant, it'was held that M. & E. could recover for the services thus rendered, in a joint action against the defendant.</p> <p>Suits may always be brought, either in the name of the parties with whom the contract is made, or in the name of those legally interested, at the election of the plaintiff, when the defendant will not be embarrassed or in any way injured by such election of the plaintiff.</p> <p>Where the defendant complained of negligence on the part of the plaintiffs, who were attornies, in the management of a suit, in which he had employed them, it was held, that negligence should have been distinctly found by the auditor, to deprive the plaintiffs of all recovery for services in the suit.</p>

Trustee Process. This was an action of assumpsit, the writ was returnable to the March term, 1852, of Chittenden County court, and set up the plaintiffs residing in Burlington in said county, and the principal defendant as residing in Ferrisburgh, in the county of Addison. The officer’s return on the said writ was as follows: “ Washington County ss.

Assumpsit, for interest. Plea, general issue, and trial by the court. On the trial, the plaintiff offered in evidence a petition, dated July 9th, 1850, in favor of the plaintiff, addressed to M. L. Bennett, chancellor, and an order made by said chancellor, on the 20th day of July, 1850, on the defendants, directing them to pay the plaintiff the sum of $-, being the sum awarded by the commissioners of the Vt.

Book Account. The action was originally brought before a justice of the peace, and came to the county court by appeal. The case was sent to an auditor, and from his report returned to the county court, March term, 1853 ; it appeared that the debit side of the plaintiff’s book was under one hundred dollars. But that defendants account exceeded one hundred dollars, and his credits to the plaintiff also exceeded that sum.

Book Account. Judgment to account was rendered in tbe county court, and an auditor was appointed.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported substantially Hie following facts: That in November, 1852, the plaintiff contracted with the defendants, to lay the floors in two sections of the Mechanics’ Shop in Burlington, at the price of eighty and three-fourth cents per one hundred superficial feet; the floors to be double, and laid with lumber, as it came from the mill; the under flooring to be of green…

Book Account. The suit originally was brought before a justice of the peace, and came to the county court by appeal, and an auditor was appointed, who reported in substance: That defendants were partners in the construction of a portion of the Vermont Central Railroad in Burlington, that they had in their employ, on their job, a boy, who had been to work for them for wages; and that on or about the second day of May, 1850, while in their service, the boy received a severe…

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

<p>Trustee Process. The only question in this case, arose upon the disclosure of Ira D. Bixby, who disclosed in snbsiance, that on the 16th day of September, 1S50, he purchased of James Orr, the principal defendant, a house and lot in Burlington, for which he agreed to pay said Orr the sum of $2900.</p> <p>That at the time of the trade, and as part of said contract, he assumed and paid debts of said Orr to the amount of $2555,13, consisting in the most part of incumbrances on said house and lot; and that of said $2900, so agreed to be paid, by said supposed trustee, for said house and lot, the sum of $844,87 remains unpaid, and is still due to said Orr. That except as above stated, this supposed trustee had not in his hands or possession at the time of the service of this writ on him, nor has he since had, nor has he now any money, goods, chattels, rights or credits of the said Orr.</p> <p>And the said Bixby further disclosed, that before the service of this writ on him, to wit on the 17th day of September, 1850, he was summoned as trustee of the said James Orr, in and by a writ in favor of one Carlos Baxter of said Burlington, dated the 16th day of September, last aforesaid, signed by D. B. Buckley, Clerk, demanding in damages $1000, and returnable to Chittenden county court, March term, 1851, and that said writ has been duly returned and is now pending in said court.</p> <p>And thereupon submits himself &c.</p> <p>At the September term, 1853, of the county court, the plaintiffs claimed that said Bixby was chargeable for said $344,87 and interest thereon from the March term of said court, 1851, when skid disclosure was filed, to the above September term, 1853.</p> <p>The County Court, — Pierpoint, J., presiding, — adjudged the trustee chargeable for said sum of $344,87 and the interest thereon as claimed by the plaintiffs.</p> <p>To this decision adjudging the trustee chargeable with said interest, the trustee excepted.</p> <p>The trustee was not chargeable with interest. A party is liable for interest only in one of three ways; by way of contract, when he stipulates to pay interest, — by way of damages — and by way of accounting for profits realized from trust property. This trustee is not within the rule.</p> <p>Again, To subject him to interest would be a perversion of the trustee process. Its purpose is to give the creditor security without prejudice to the trustee, by substituting him in the place of the debtor to recover what otherwise would be recovered by the latter.</p> <p>The effect of the judgment would be to subject the trustee to an additional liability, without the power of avoiding it. Foxcraft v. Knight, 2 Dallas 132. House v. Allen, 2 Dallas 102. Fitzgerald v. Oaldwell, 2 Dallas 215. Sichman v, Lapsley, 13 Serg. & Rawle 224. Prescott v. Parker, 4 Mass. 170. Adams et al. v. Cordis et al., 8 Pick. 260. Oriental Bank v. Tremont Ins. Co., 4 Met. 1. Williams v. Consequa, Peters C. C. Rep. cited in 4 Met. 6 Johns. 445.</p> <p>The debt due from Bixby to the principal debtor, set out in the disclosure, was one which bore interest by its terms.</p> <p>It is therefore subject to interest in favor of the creditor, who stands in the same relation as the principal debtor towards the trustee. Adams et al. v. Cordis et al., 8 Pick. 260. Seymour v. Cooper fy Trustee, 25 Vt. 141.</p> <p>The rule is no hardship to the trustee, and is only simple justice to the creditor.</p> <p>If the trustee had not continued in the use of the money, or had been deprived of the interest by the process, or had even made a deposit of the funds, or had taken any step to protect himself from liability for the interest, a different question would have been presented. He does not even object to the payment of interest in his disclosure.</p>

Assumpsit for goods sold and delivered. Plea, the general issue, and trial by jury. The plaintiff claimed to recover of the defendant the amount of two bills of goods, sold by him to the defendant on the second and fourth day of May, 1848, and the other on the seventh day of June following, both bills amounting to over eight hundred dollars. That plaintiff was a silk and fancy goods merchant in the city of New York, and the defendant a merchant in Burlington.

Replevin for 24 yearlings. The cases were referred under a rule of court, by agreement of the parties, “ to be decided according to law,” to referees, who reported substantially the following facts: That the plaintiff owned a farm in Richmond, with the stock and tools thereon, which he leased to one Jonathan and John G. Taggart for the term of two years from April first, 1849.

. Trespass for taking and driving away twenty-five yearlings. The case was referred under a rule of court to referees, who reported in substance: That the plaintiff leased to one Jonathan and John G. Taggart, a farm in Richmond, with the tools and stock thereon, for two yeai'S, from April first, 1849, and referred to a certain written lease between plaintiff and one Stearns.

This was an action on the case, brought by the plaintiff to recover of the defendant one-fourth part of the amount for which he sold a quantity of cheese, raised on the farm leased by defendant to one Jonathan and John G. Taggart.

Action of covenant. Plea, non esi factum, and trial by jury.

The orators set forth in their bill; that in September, 1841, the said Thomas Mills, one of the orators, purchased a certain patent right, or the exclusive right under a certain patent, to make, use and vend a certain stump machine, within the town of Colchester.

Trespass for a lot -of pine hoards. Plea, the general issue, and trial by jury. On trial the plaintiff -offered in evidence a copy of an 'attachment, and judgment, and-execution thereon, issued by the Chittenden County Court, September Term, 1848, in fkvor -of Edwards & White, against one Myers.

This was an action of trespass founded on the statute entitled, “An act more effectually to prevent trespass in certain cases,” passed in 1849. Plea not guilty, and trial by jury.

Assumpsit. The declaration contained four counts. 1. For •worh and labor. 2. Goods sold and delivered. • 3. Money lent fyc. 4. Money Jiad and received. Plea, the general issue, and trial by jury.

This was an action-under the statute, brought in October, 1852, before a justice of the peace, to recover possession of lot No. 32, first division, in Berkshire, drawn to the right of the college, and came to the county court by appeal.

Assumpsit for goods, wares, and merchandize sold the defendant by the plaintiffs, who were partners in trade, in Georgia in. this State. Plea, the general issue, and trial by jury. On the trial the plaintiffs offered evidence tending to prove the delivery of the goods in question. The defendant then offered in evidence the declarations of Lewis A. Loomis one of the plaintiffs of record.

Habeas Corpus. The relator in his petition set forth in substance, that he was confined in the common jail in Middlebury, in the County of Addison, as a prisoner in said jail, and that he was in the custody and keeping of David S. Church, Sheriff of said County, and keeper of said jail; and that he was confined and so kept, by virtue of a pretended process, issued and signed by Norman Tupper, a justice of the peace, within and for said County of Addison, upon an allegation…

Trespass quare clausum fregit. Plea, the general issue, and trial by jury. On the trial the plaintiff introduced evidence tending to show, that he had a possessory title to the locus in quo, and that the defendants had committed the alleged trespass.

Ejectment for certain lands in Addison. PleaJ general issue, and disclaimer by Rector Gage, one of the defendants, and trial by jury.

<p>Assumpsit on a promissory note, executed August 14, 1840, by one Samuel.B. Williamson as principal, and by tbe defendant as surety.</p> <p>Plea, tbe general issue and tbe statute of limitations, issue joined, and trial by tbe court June Term, 1853, Pierpoint, J., presiding.</p> <p>On tbe trial tbe plaintiff offered in evidence tbe note declared on, with tbe endorsements tbereon. Tbe plaintiff also offered, as a witness, one Wrigbt, wbo testified in substance, that some four years previous, tbe defendant, in speaking of bis liabilities, spoke of tbe note in suit, witb other notes, and said that “be bad signed with bis son, and in tbe end be thought be should have this to pay,” and added, “ that there bad been enough paid to pay tbe debt, if it bad been paid when it should have been,” or “ in tbe first place.”</p> <p>Tbe witness testified, that be gathered from what defendant said, that tbe payments had been made by Samuel B. Williamson, and not by the defendant.</p> <p>The sum for which the note was originally given, considerably exceeded tbe amount of tbe endorsements.</p> <p>Tbe defendant claimed that the evidence was not sufficient to take tbe case out of tbe statute of limitations; and that if sufficient, not to the extent of tbe amount apparently due on tbe note, deducting tbe endorsements.</p> <p>Tbe court decided that tbe evidence was sufficient to take tbe case out of the statute of limitations, and rendered judgment for the plaintiff to recover the full amount of the note, deducting the endorsements.</p> <p>Exceptions by defendant.</p> <p>1. To remove the statute bar, there must be an acknowledgment of the debt as still due, with an apparent willingness to remain liable for it, or at least, no avowed intention to the contrary.</p> <p>Neither of these conditions occur in this case. The admission is, “ that he had signed with his son, and in the end he thought he should have this to pay.” This does not admit a valid subsisting debt then due, and the most which can be made from it, is, that at some time he had contracted an obligation which ultimately might be enforced against him.</p> <p>The expression “that in the end he thought he should have it to pay,” so far from conveying an idea of a “ willingness,” directly suggests an apprehension or fear that he might be compelled to pay it.</p> <p>2. At all events, it cannot be claimed seriously, that the defendant should be held to an extent greater than his admission. Suppose he had said “ half the debt is still due, and I am willing to pay half,” would such an admission remove the bar as to the whole debt ? So here the declaration of the defendant was coupled with a statement that “ enough had been paid to pay the debt, if paid when it should have been.” Can he .be held beyond the face of the debt ?</p> <p>3. Payments made by the co-contractor are of course under our laws no evidence to charge the defendant in this case. Comp. Stat. 381 § 26.</p> <p>1. It is a settled principle in the jurisprudence of this state, that an unqualified acknowledgment that a debt is due, takes it out of the statute of limitations. '</p> <p>The admission by the defendant, that he jointly with his son, executed the note; his regarding and acknowledging it as one among his then subsisting liabilities,, and his avowed expectancy that in the end he would have it to pay, amounts to a sufficient acknowledgment, to remove the statute bar and revive the note. Gailer v. Grinnell, 2 Aik. 349. Olcott v. Scales, 3 Yt. 173. Barlow v. Bellamy, 7 Yt. 54. Phelps v. Stewart et al., 12 Yt. 256. Joslyn v. Smith, 13 Yt. 353.</p> <p>2. A payment made by one of several joint contractors, when recognized and treated as such by the others, is the same in legal effect, as though made by all, and would operate to take the demand out of the statute as to all; such recognition is a virtual adoption ly all, of a payment made by one.</p>

Action of Account, in whicli the plaintiff claims to recover an undivided interest in some cattle and sheep, whicli interest had been attached and sold at a sheriff’s sale upon an attachment against one Edward A. Barney, who was a tenant on defendant’s farm. The defendant pleaded 1st. That he never was nor is bailiff or receiver of the property in question. 2d. That the plaintiff never did require or request him to render an account &c. Issue joined and trial by jury.

<p>Trespass for certain goods of the plaintiff.</p> <p>The cause came to the county court by appeal from the judgment of a justice of the peace.</p> <p>Plea, the general issue, and trial by the court.</p> <p>It appeared on trial, that the goods described in the declaration were taken by the defendant from the possession of one Jacob H. Lampson by virtue of a writ of attachment, in favor of one Ebenezer Porter, against said Lampson, regularly issued and put into the hands of the defendant, (who was constable of Poultney,) for service, upon which judgment was rendered and execution duly issued, and put into the defendant’s hands, so as to charge the property.</p> <p>It also appeared that said Lampson was, previous to the receipt of the goods as hereinafter stated,.poor and in debt, and that he wanted to procure the goods in question, of the plaintiff, to peddle on commission, and it was agreed between the plaintiff and said Lampson, that the plaintiff should deliver to Lampson goods on the following terms : — Lampson was to take the goods for the purpose of peddling, but the goods were to remain the property of the plaintiff until sold, and the plaintiff had a right to retake them whenever he pleased, and the said Lampson, had a right to return them, or any part thereof, at his pleasure, and the goods sold by Lampson were to be accounted for to the plaintiff at the prices specified in a certain list of the articles so taken, which list was made and furnished to Lampson by direction of the plaintiff, and for the purpose only of enabling Lampson to know what he had received, and the prices for which he was to account for them. It was, as it appeared, agreed between said Lampson and the plaintiff, that Lampson should, and he accordingly did deposit with the plaintiff a sum of money, ($50) equal in amount to the value of the goods taken, as specified in the list of articles taken, the first time, which was to remain as collateral security for the faithful performance of the contract on the part of Lamp-son. That after having disposed of a portion of the goods received the first time, the said Lampson came to the store of the plaintiff and procured more goods of the plaintiff, upon the same terms, and then took a similar list of the articles and prices, and then paid the plaintiff-the sum of thirty-nine dollars, ($39,) and took away the articles specified in the second list, and retained the articles unsold which he received the first time, which constituted all the goods taken by the said Lampson, he leaving the money deposited the first time in the hands of the plaintiff', as security, as aforesaid.</p> <p>The two bills of articles delivered to Lampson were put into the case, by which it appeared that the $39 was equal into $4,12, to the value of the second bill of goods.</p> <p>The plaintiff offered said Lampson as a witness, who testified to the terms on which he received the goods of the plaintiff.</p> <p>The attachment, record of judgment, and execution, in the suit of Porter v. Lampson were put into the case.</p> <p>Upon the foregoing facts, the court rendered judgment for the plaintiff to recover the value of the goods taken by the defendant.</p> <p>Exceptions by defendant.</p> <p>I. The right of property in the goods passed to Lampson by their delivery, whether the contract was a sale or mutuum. Story on Bailments § 439, 283. Ohase et al. v. Washburn, Am. Law Reg. 487. 8 U. S. Digest 381.</p> <p>II. The plaintiff had neither actual or constructive possession of the goods, and cannot sustain trespass. Swift v. Solace, 23 Vt. 279. Greenleaf’s Ev. § 616. Fairbanks v. Phelps, 22 Pick. 535.</p> <p>Lampson had a right to possession, to sell and make Ms profits, he had a lien for the prices paid. Story on Agency § 335, 350. Story on Bailments 121. 15 East 607.</p> <p>Lampson was the bailee of the plaintiff, and was not the owner of the goods, at the time they were attached.</p>

<p> Subsequent attaching creditors, their right of appeal. Auditors to adjust the accounts of the parties to the time of the audit. Plaintiff’s lien on property attached. </p> <p>When subsequent attaching creditors are permitted to enter and defend, in a suit, before a justice of the peace, under the statute, they so far become parties to the suit, that they have the right of appeal, and can prosecute the same in the appellate court.</p> <p>Auditors by statute, (Comp. Stat. 290 \ 9,) are required in taking the account of the parties on book, to examine and adjust the same to the time of the audit; and the plaintiff is also entitled to hold any lien or security that he may have obtained by attachment, for the payment of the balance which he mayrecover.</p> <p>And whenever any creditor makes a subsequent attachment of the same property, it is made subject to this duty imposed by statute on the auditor, and also to this right given to the plaintiff to hold the lien or security on the property attached.</p> <p>The rule would probably be otherwise, if there was actual fraud practised between the plaintiff and defendant, for the purpose of defeating the lien of the subsequent attaching creditors.</p>

<p> Garners by Railway. Limitation of Liability. Notice. Special Gontract, its effect. Declaration. </p> <p>A Railway Company that transport cattle and live stock for hire, for such persons as choose to employ them, thereby assume and take upon themselves the relation of common carriers,and with the relation,the duties and obligations which grow out of it; and they are none the less common carriers from the fact, that the transportation of cattle is not their principal business or employment.</p> <p>A common earner may, by special contract with the owner of the property to be transported, so change his relation, as to become a private carrier, and when the relation is so changed, his liability is measured by the specific provisions of his contract; but a general notice to the public, limiting his obligations as a common carrier, will afford no evidence of such contract, even if the existence and contents of such notice is brought home to the party.</p> <p>And where a Railway Company, (the defendants,) for a given reward or hire, proffered to become, and to assume the relation of common carriers; and for a less reward or hire proffered, in the exercise of reasonable care, to furnish the necessary means of transportation, such as cars, motive power, &e., that the owner might be his own carrier; thus graduating the rate of compensation to the degree of risk assumed, and leaving either mode of transportation to to be adopted at the option of the owner of the stock; and the plaintiff, who had cattle to be transported, elected to pay the lower rate — held—that he was bound by his election, and that he could not hold the company as common carriers, for damage to his cattle.</p> <p>In the present ease, a special contract was found, under which the defendants, in the exercise of reasonable care, were to furnish the plaintiff with a suitable car, and other necessary means of transportation, and the plaintiff was to assume the risk, and general responsibility of the transportation of his cattle— fteW — under this contract, that the defendants were not common carriers, but were pro hoc vice private carriers merely.</p> <p>And the plaintiff having declared against the defendants as common carriers, the' question whether such a special contract was made, is purely one of law.</p> <p>And when the relation is changed from common to private earners by special contract, the company not being liable as common carriers, cannot be declared against as such, but the action must be on the contract, or for a breach of duty arising out of the contract.</p>

<p>Wills. The construction of Wills.</p> <p>Where the testator, in his will, in devising a portion of his estate to his wife, made the bequest in the following words; “ I give to my beloved wife one third of all “my personal and real estate, and in addition to that, X give her one cow, ten “ sheep, and one hundred dollars in money, to have at her disposal during her “ natural life, or so long as she shall remain my widow;” it was held,</p> <p>I. That the two parts in this item in the testator’s will, are distinct and each complete in itself.</p> <p>H. That the first clause in'this item gives to the wife of the testator an estate in fee.</p> <p>IH. That the second clause does not influence or control the first, but the second clause being independent and distinct, it gives to the wife a life estate in the articles specified, in way;of addition to the first clause in the bequest, withpower of sale.</p> <p>The word estate, used in a will in its application to real property, may be used to express either the quantity of interest devised, orto designate the thing devised, or both; and the sense in which it is used must be determined from the will itself.</p>

Trespass quare clausum fregit, for breaking and entering divers barns, and other buildings connected therewith, of the plaintiffs in Pittsford, and setting fire to and burning the same together with the contents. Plea the general issue and trial by jury.

The plaintiff filed in the county court, the following amended declaration: “ In a plea of the case for covenant broken, for that on the 12th “day of January, 1803, the said Issachar Reed, by his certain “ deed of that date, duly executed, signed with his hand and sealed “ with his seal and acknowledged and recorded, all in due form of “ law, for the consideration of eleven hundred dollars, paid to him, “ the said Issachar Reed, by one Zerah Mead, then of said Rut- “ land,…

Assumpsit for money lent and paid out for the defendant’s use. Plea, the general issue, and trial by the court.

Book Account. This action came to the county court by appeal from the decision of a justice of the peace.

Assumpsit, on a promissory note payable in installments, to recover the first payment specified in said note. At the September Term, 1851, of tlie county court, tlie defendant pleaded the general issue, and also an independent jilea of puis darrein continuance, in bar to the suit. The court overruled the last mentioned plea, and tbe defendant reviewed.

Assumpsit on a promissory note. Plea, the general issue, and trial by the court, April Term, 1853, — Pierpoint, J., presiding. On the trial, the plaintiff introduced in evidence, the note declared on, which was signed by one E. F. Clark, Orson G. Hulett, the defendant, and one Rich Weeks. The defendant then offered testimony for the purpose of showing that this note was the proper debt of the said E. F. Clark to pay, the defendant and said Weeks being sureties only.

Petition under the statute, (Comp. Stat. 174, Chap. 22 § 68 and 69,) for taking the franchise of a certain Turnpike company lying partly in Rutland aud several other towns. The facts and the questions raised and passed upon, sufficiently appear in the ’ opinion of the court, which was delivered by Chiee Justice Redeield.

Assumpsit for $4,000, it being two hundred twenty dollar gold pieces, left with the defendant, who was an innkeeper, for safe keeping. Plea the general isstie and trial by jury.

Assumpsit in which the plaintiff declared specially on a submission to and award of arbitrators. The declaration also contained the common counts. Plea, the general issue, and trial by jury.

This was an Information in one count, filed by the State’s attorney under the license or liquor law passed at the October session of the legislature in 1852, and approved November 23, 1852. Plea, not guilty and trial by jury. The evidence tended to prove four distinct offences. The counsel for the respondent, requested the court to charge the jury that under the information they could not find the respondent guilty of more than one offence.

Trover for two two year old heifers and a calf. Plea the general issue and trial by jury.

Trover for four tons of hay. Plea, not guilty, and trial by jury. On the trial it was conceded, that the plaintiff bought at a constable’s sale on execution, a mow of hay, in the barn of one Gil-son, in Reading, and that afterwards the defendants took and carried away one third thereof; and testimony was introduced as to its value.

Trespass for a wagon, which the defendant, Archer took as collector of school district, No. 13, in Plymouth, the defendant, Wilder assisting the said collector, at his request, in drawing the wagon away.

Assumpsit on two promissory notes, for $80, each, the first note dated at “ Royalton, September 27, 1851the second note dated “ Royalton, October 31, 1851and both notes were made payable to “ Elisha Rix, Admr. of Geo.

Assumpsit on two promissory notes. The defendant pleaded the general issue, and two special pleas in bar; the defendant in the special pleas set forth a submission in writing under the seals of the parties to arbitration, of all matters in dispute between the parties, including the notes in question, and an award made in pursuance of said submission.

Debt on judgment. The defendant pleaded a discharge in bankruptcy, under the act of Congress of 1841; to which the plaintiff replied setting forth various and distinct acts of fraud, in avoidance of the discharge in bankruptcy. . To the replication the defendant demurred specially. The County Court, December Term, 1853, — Collamer, J. presiding, — adjudged the replication insufficient, and rendered judgment for the defendant. Exceptions by plaintiff.

This was a petition to set aside an execution. The petition set forth in substance, that on or about the twenty first day of April, 1843, one Aaron Goddard of Reading, commenced a suit against the petitioner by the trustee process, summoning Timothy P. Collins, Joel Holden, Nathan Weston, and others, as trustees.

Assumpsit in four counts; in the first count, the plaintiff set forth, in substance, that at Barnard on the first day of April, 1846, Daniel and Hiram Aikens, by their promissory note of that date, for value, promised the defendant to pay him or order the sum of $200, on demand and interest annually, and afterwards, to wit, at Barnard, on the first day of January, 1847, the defendant indorsed said note to the plaintiff, and that plaintiff on the day last aforesaid, presented…

Debt on bond: the bond was an arbitration bond, conditioned that defendant should pay to the plaintiff' the award of the arbitrators. The defendant pleaded that it was not his deed; and also on oyer set out the condition of the bond, and pleaded no award. The plaintiff in his replication set out several or a succession of awards; to which the defendant rejoined no legal award. Trial by the jury.

Trover for a quantity of cheese, and certain other personal property. Plea, the statute of limitations as to all the property but the cheese and not guilty as to that. Trial by the court. On the trial, the plaintiff abandoned the right to recover as to all the property mentioned in the declaration, except said cheese.

The bill was brought to obtain a new trial at law, in an action which had been determined at law. The defendant demurred to the bill in the court of chancery. Chancellor Collamer dismissed the bill, and the plaintiff appealed to this court. The substantial grounds for relief, alleged in the hill, sufficiently appear in the opinion of the court. Insisted — I. That the court of chancery has power to decree a new trial, and cited 1 Story’s Eq. Juris. 179. 2 Story’s Eq.

This was an action on the ease, for flowing the plaintiff’s land by means of a dam. Tbe plaintiff declares that on the 18th day of October, 1835, he was seized of the premises, and from thence hitherto hath been seized and lawfully possessed of them.

<p>This was a petition brought to vacate a levy of an execution, which was issued on a judgment rendered by the Supreme Court, at the June Term, 1823. The levy was made in December, 1823, on land where the debtor had no title or interest. The facts in the case sufficiently appear in the opinion of the court.</p> <p>The judgment was rendered by this court in 1823, and execution was issued and levied upon land in possession of Horace .Hunter, and actually the property of Jabez Hunter. Possession was never taken by the creditors, under the levy, and it has always been held and retained by Hunter, and those claiming under him. The officer’s return of the levy shows an apparent satisfaction of record ; but there having been no satisfaction in fact, the record, in this respect, is false, and the error may be corrected upon petition.</p> <p>The power incident to all courts of general jurisdiction, to inquire into the correctness of their own proceedings, to correct their records according to the truth, if erroneously made, or to relieve a party against the unjust operation of a record, on ascertaining, by a direct inquiry into the matter, that the record ought not to have been so made, — and to do this on motion, founded on affidavits and notice, was distinctly asserted in Mosseaux v. Bingham, 19 Vt. 460, and the case of Scott v. Stewart, 5 Vt. 57, was cited as an illustration of its exercise. That the court will, on motion, exercise this power, by setting aside an irregular levy of execution, was asserted by Williams, J., in Hurlbut v. Mayo, 1 D. Chip. 390, 391, and in Pettes v. Montague, decided by this court.in this county, June Term, 1851, — which was a petition to vacate the levy of an execution, for irregularity, which rendered the levy a nullity, — this power was exercised, and the levy was vacated. That case must be decisive of the case at bar.</p> <p>If the creditors have not a remedy in this form, they are without remedy; for the statute, which has been in force for many years in this state,, allowing the creditor to bring scire facias, where an execution has been levied upon property not belonging to the debtor, has been repealed. Acts of 1852, p. 7. Comp. Stat. c. 45 § 46.</p> <p>No objection can be based, by the debtor, upon the lapse of time, since it has been held, in Baxter v. Tucker, 1 D. Chip. 853, that the statute of limitations does not apply to any case, “ where by the return of the execution, the judgment appears on record to be satisfied,” — and if this were not so, the non-residence within this state, of either the creditors or debtor, since the rendition of the judgment, is a sufficient answer to the objection.</p> <p>The dictum in Co. Lit. 290 b, “that it appeareth by the preamble of the statute, 32 Hen. 8, c. 5, and by divers books, that after a full and perfect execution had by extent returned and of record, there shall never be any re-extent upon any eviction,” is not applicable to this case. For that refers to an extent upon the rents and profits of land, (which is all that the common law, or the statutes giving remedy by elegit, by statute merchant or statute staple, allowed,) and not to a levy under the statute of this state, upon the fee. The creditor, under such a levy, is put in possession, and acquires the right to take the rents and profits, while he remains in possession, and does take them. It may, with some show of justice, be said, that having taken an appearance of satisfaction, and some value, he shall not have another extent, and this for the reason given in Bac. Abr. Ex’on D. 1717, where it is said that though the creditor “ take but an acre of land in execution, yet it is held a satisfaction of the debt, be it never so great, because in time it may come out of it;” as well as for the reason assigned in Grawley v. Lidgeat, Cro. Jac. 338, that “ the taking of land in extent for the debt is, in judgment of law, as if he had taken a lease for years in satisfaction of the debt.” But how can that be held a “ full and perfect execution had by extent,” which passes no title of the debtor to any land, and under which the creditor does not acquire even the present possession of land?</p> <p>This whole question was examined with great care by Ch. J. Parker, in Burnham, v. Oojfin, 8 N. H. 114, and he arrived at the conclusion, both upon reason and authority, “ that it is by no means dear, that by the common law, the creditor who had extended lands, which did not belong to his debtor, might not have a new extent, before the statute of 32 Hen. 8.” And in that case the same remedy was afforded by action of debt, against a void levy, which this court refused, in that form of action, in Pratt v. Jones, 22 Vt. 341, — but afforded, upon petition in Pettes v. Montague, above cited.</p> <p>1. "VVe say that the court have no jurisdiction. Both parties reside out of this state, and no service was made on defendant within the state.</p> <p>II. After thirty years, the court will presume the debt satisfied, either by levy or otherwise.</p> <p>If the court have jurisdiction now, the petitioners might at any time have resorted to the same remedy; but if they had not this remedy, they might have proceeded by scire jadas, in which case the service might have been sufficient, as the court already have jurisdiction of the parties. Barnes v. Belknap, 22 Vt. 419.</p> <p>The statute, relating to scire facias, furnishes a cumulative remedy. The present proceeding might have been taken at any time, if it can now be had. Pratt v. Jones, 22 Vt. 345. Pettes v. Raymond et al., (not reported.)</p>

<p> .Contract; Consideration. </p> <p>A contract, for the sale of property, which is merely what is termed a refusal of the property by one of the parties', leaving it" optional with' the other party, whether he will take the: property, within a certain, time or not, unless upon some other consideration, or under seal, would' not be valid inlaw, for want of consideration.</p> <p>But where F. and H. entered into a written contract, by the terms of which H., in consideration of a certain number of shares of stock in the Vermont Central Railroad Co., “ to be delivered,' to me, (H.) by F. on or before the first day of July, 1850,” agreed to sell and coiivey certain' property to F.r, and this contract was signed by both parties — Alcld—that the' contract was upon sufficient consideration; and that both parties are bound to do. what is specified in the contract to be done on his part; and that if F. had declined to deliver the stock according to the terms Of the contract, an action would lie upon the contract, for the refusal. - ■'</p> <p>And in such a contract, the delivery of the stock, and the conveyance of the prop- - erty are concurrent acts; and ' as the one promise is the entire consideration of the other, neither party would be bound,- to absolutely convey his property; except upon the conveyance by the other.</p> <p>But either party, claiming damages for non-fulfillment of the contract, must either show a readiness, and offer to perform on his part, orthat he was excused therefrom by the consent or the conduct of the other party.</p> <p>The directors of the Railroad Company, by letting in those -who paid but $30, to an equal participation in the profits of the company, with those who paid $100, lessened the market value of the stock which F. by the contract sold to H.; • it was held, that if this act of the directors was a legal one, then it was one which H. was bound to know they might do, and would therefore form one of the contingencies of H’s. purchase; and whether the act of the directors was before or after the actual time of sale, would no more affect the validity of the sale, than any other legal act of theirs; but if the act was an unlawful exercise of authority,by the directors, then H. when he became a stockholder might resist it in any legal way; and therefore will form no defense for H. in a suit for a nonperformance of the contract. ' ■</p>

Trespass for taking and carrying away certain articles of personal property. Plea, not guilty and trial by jury.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported substantially the following facts: That plaintiff presented the following account: “ 1851 & 1852.) To drawing out and chopping 70 cords Dec. & Jany. j of wood at $1,25, $87,50 “ two days work making road, 3,00 “ two bags, at 28 cts., 56 “ three bushels-meal at 50 cts., 1,50 $92,56 ” That the defendants presented their account amounting to $2,93 concerning which…

<p>Trespass for false imprisonment. The defendants filed a special plea, justifying under a tax-bill and warrant. The plaintiff replied and set forth in his replication, that at the time he was arrested in August, 1851, lie handed to the defendant, Gerry, the sum of $13,25, which was the amount of-the tax and costs charged by said defendant, and asked to be discharged ; but, that said defendant refused to discharge the plaintiff from arrest, and for a long time kept the plaintiff under arrest and imprisoned; the said defendant refusing to set the plaintiff at liberty until he paid the sum of $3,44, claimed by said defendant to be due as interest on the said taxes. The defendants rejoined and set forth, in substance, that the defendant, Gerry, having the' tax-bills and warrants, on the first day of June, 1846, demanded the said several sums in said tax-bills due against said Shaw, of him, the said Shaw ; that he refused, and ever since has refused and neglected to pay, until the 7th day of August, 1851, when said Shaw having come within the state of Vermont, and having no goods or chat tels whereon to make distress, he took the body of the said. Shaw, calling to his aid the said Peckett, and held said Shaw about ten hours, until he paid said taxes, costs, and said sum of $3,44, interest, accruing from the time of said demand to the time of said payment, all of which was lawful, &c.</p> <p>To the rejoinder of the defendants, the plaintiff demurred.</p> <p>The County Court, January Term, 1854, — Coxxamee, J., presiding — rendered judgment that the rejoinder is sufficient, and that defendants recover their costs.</p> <p>Exceptions by plaintiff.</p> <p>The plaintiff’s replication alleges, an imprisonment for interest, after paying the tax and costs.</p> <p>If interest be not chargeable on taxes, then this arrest was a trespass, rendering the arrest a trespass cib initio. Six Carpenter’s Case.</p> <p>The defendants’ rejoinder alleges a demand in 1846, which is in conflict with the allegation in the defendants’ pleas, that plaintiff was out of the state ; the rejoinder does not confess the allegation of plaintiff in his replication, that plaintiff paid the tax and cost, and was imprisoned on the interest; nor does it traverse that allegation.</p> <p>The rejoinder is inconsistent with, and supersedes the plea of the defendants.</p> <p>I. By law the state tax is payable into the treasury, on the first day of June, in each year; so is the command in the warrant to the collector. The town tax was also payable on the first day of June, into the town treasury, and so is the warrant. It is the custom, uniformly, and has been practised so long in this state, that the court will recognize the practice, as common law, that if the money is not paid by the time limited, interest is to be charged against the collector by the treasurer. "We believe this custom is as old as the government, and should be recognised and sanctioned by the court.</p> <p>II. In the 3 Blackstone’s Com. 158, it is said, “ Every person “is bound and hath virtually agreed to pay such particular sums “ of money as are chargeable on, him by the sentence, or assessed “ by the interpretation of the law. For it is a part of the origin- “ al contract, entered into by all mankind who partake of the ben- “ efit of society, to submit, in all points, to the municipal constitu- “ tion and local ordinances of that state of which each individual “ is a member. Whatever, therefore, the law orders any one to “ to pay, that becomes instantly a debt which he beforehand con- “ tracted to discharge.”</p> <p>If any man undertakes, and is bound to pay the principal, equally so is he bound to pay the interest, on default after notice and demand. The government and tax-payer may well be considered as the principals in the transaction, and the collector as the agent of both; of the tax-payer to give him notice that he is taxed; of the state, to demand it, and in case of default in the payment, on notice, to collect and pay over the debt, both principal and interest.</p> <p>III. The collector was compelled to pay over the taxes to the several treasurers, on the first day of June, 1846. The law presumes a public officer has done his duty. Then on principle, money advanced by one man for another’s benefit, draws interest from the time of payment, or at all, events, from the demand for repayment.</p> <p>Interest is allowed on two grounds.</p> <p>1. Because it is promised. 2. Because the creditor is kept out of his money after it is due. The taxes were payable on a day certain; a note payable on a day certain always draws interest after the day has passed — Where is the difference ? 2 Davis’ Abridg. 212 § 2, 3. 1 Amer. Dead. Cases 525, note 4. Walker v. Bradley, 3 Pick. 291. Bodge v. Perkins, 9 Pick. 368. Bernard v. Bartholomew, 22 Pick. 291.</p> <p>IY. As to the demurrer — The rejoinder-must conform to the replication. This is so here, and this is enough. The rejoinder is an answer to the replication; if that is bad, the rejoinder is sufficient for a bad replication, and if they are both bad, the plea is sufficient. Scott v. Bixon, 2 Wilson 3.</p> <p>The plaintiff should have new assigned. Oakley v. Davis, 16 East. 82.</p>

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported substantially the following facts: That plaintiff presented his account of which the following is a copy : “ 1849, Nov. 1, To building four charcoal kilns, in Orford, N. H. as per agreement, $238,70” The defendant also, presented an account against the plaintiff, amounting to the sum of $180,41, which was found correct, and allowed as charged.

This was an action of account, in which the plaintiff declared against the defendant, as “ tenant in common of Lot No. 8, in the first division in Braintree, or a part thereof, with the plaintiff from, &c., and during this time received more than his share of the wood, timber, rents and profits of the same,” &c. The action was originally commenced before a justice of the peace, and the defendant moved to dismiss for want of jurisdiction, which motion was overruled; and the…

<p>Audita Querela, to vacate the judgment of a justice of the peace.</p> <p>It appeared on the trial, that on the 26th day of April, A. D. 1851, the defendant sued out a writ, before George W. Prichard Esq., a justice of the peace, for the county of Orange, returnable on the 10 th day of May, 1851; that said writ bore date, as appears by the writ, April 28th; but was served, as appears by the officer’s return, April 26,1851.</p> <p>That said Eastman & Paige were residents of Massachusetts, and that some five years ago they had a job upon the Passumpsic Eailroad, and had been absent some two years when the said writ was served.</p> <p>It appeared, that said writ was served by attaching old iron and other articles, along the line of their work, and a copy left where the property was found. On the 10th day of May, 1851, an affidavit was made showing notice on Eastman, one of the partners of the firm of Eastman & Paige, but the justice, not considering it sufficient notice, continued the cause to the 27th day of May, 1851, as appears by the record and the te stimony of the justice ■; on the 27th day, no further notice having been given, the said justice again continued the cause to the 24th day of June then 'next. On the said 24th day of June, the said justice being absent from the state, the said cause was again continued to the 24th day of July, then next, by another justice. On the said 24th day of July, the justice adjudged that the defendants had had notice proved upon them.</p> <p>The justice, however, in his statement, which was put into the case, says, “ I find the fact to be, that no further notice than the original or first named notice in the affidavit, had been given or made; but being informed by the plaintiff’s attorney, that in the county court, in the case -E. A. Gilley v. Eastman S>• Paige commenced at the same time of Waterman’s, a notice the same as proved in this case, had been adjudged sufficient,” the said justice so decided, and adjudged that the defendants had been notified and defaulted the defendants.</p> <p>The fact that the county court had so decided, in the case of Gilley, was conceded.</p> <p>That early in July, 1851, Mr. Eastman came to Bradford, and procured the property attached in this and other suits, to be receipted ; but that it was afterwards sold on execution and was not taken away on the receipt. It also appeared that the plaintiffs, in October, sent one Henry Fox to look after their effects in Bradford; that he inquired of Judge Parker, who had been formerly counsel for the plaintiffs, Eastman & Paige, in other causes; and that Parker in company with Fox, went to the office of B. McK. Ormsby, and found the writ in the case of Waterman v. Eastman § Paige, with the judgment thereon rendered. That the property sold on ex_ ecution was worth more than was realized for it on the officer’s sale; and the officer sold the iron in heaps or lots, by the pound; that thei-e was much more than was expected on weighing it out, leaving a surplus in the hands of the officer, which surplus, after paying the amoxxnt in the execution, was received by the plaintiffs, of the officer early in 1852.</p> <p>The defendant claimed, that the justice having on the 24th day of July, adjudged the defendants notified, it was not an act to be revised in this action ; that notice to one partner was in law notice to both, and offered an affidavit of facts expected to be proved by one Sawyer-, in relation to notice to said Eastman, which was admitted.</p> <p>It also appeared, that the continuances in the case were entered in the hand xvriting of Waterman’s attorney, and that the justice had no action in these entries, except to sign his name as justice to the same.</p> <p>The court, — Collamer J., presiding, — found that the judgment of the justice against Eastman & Paige was rendered without any notice to said Paige, who resided in Massachusetts ; that the execution issued without any bond being given, and that the property sold on execution exceeded in value besides the amount of money returned to the plaintiffs more than $-, and thereupon rendex-ed jxxdgment for the plaintiffs, setting aside said judgment and execution and giving damages, $-</p> <p>Exceptions by defendant.</p> <p>The case shoxvs Eastman & Paige were general partners, and that the writ was served by attaching partnership property; continued from May 10th to May 27th; then to June 24th for notice ; then by another justice to July 24th, and on the last named day, the justice decided “ defendants notified,” and judgment.</p> <p>Wex’e this but a statute or judgment inrem, i. e., entex’ed up without notice, it woixld be good. Marvin v. Willcins, 1 Aik. 1,07, was not like this — there, there had been no continuance; see Comp. Stat. Chap. 29 § 57, 58. Where property is attached and the statute pursued, a judgment without notice is regular. It may be irregular to issue execution on such judgment without bond. Comp. Stat. Chap. 29 § 59. But the defendant’s right of review does not depend on the bond. See Comp. Stat. Chap. 29 § 60, 61, 62, 63, 64. The bond indemnifies against the execution, but is not a condition subsequent with, power to effect the judgment. If execution issue prematurely, it may be arrested by audita querela. Johnson v. Harvey, 4 Mass. 483.</p> <p>On the 24th day of July the justice adjudged notice on the defendants proved. No imposition on the justice is pretended. It was strictly a judicial act. The justice may have erred in judgment ; but audita querela does not lie to correct error or mistake of court. To sustain this action some improper conduct of the other party must be shown.</p> <p>The decision of the justice upon interlocutory questions is not open to examination in this action. Sutton v. Tyrrell, 10 Yt. 87. Griswold v. Rutland, 23 Vt. 325. Olcutt v. Peckett, 4 Yt. 17.</p> <p>The case in 22 Yt. 634, is not decisive of this cause, for many reasons, viz: In Whitney Titus v. Silver, 22 Vt. 634, the judgment against Titus was void as to him, for want of jurisdiction; neither his individual property, nor the property in which he had a partnership, or any kind of interest was attached. He had no notice of the action, and his business relationship with Whitney would not justify the idea of his being bound by Whitney’s acts, without, as the court expressed it, opening a door to frauds. In that case there was no interlocutory decision of the justice as to notice to Titus, nor did the record show that his associate defendant assumed to appear for him.</p> <p>In this case, the property of the plaintiffs gave the justice jurisdiction. Every step was regularly taken. The judgment is in every respect strictly in compliance with the statute in such cases. Was there any necessity for a bond before issue of the execution ? Not if notice was proved.</p> <p>That notice to one partner is notice to all, see Colyer on Part. 238. In an action against partners notice to one of taking depositions, is sufficient. Gilly v. Singleton; 3 Littell 250. One partner may appear for the rest. Colyer on Part. 238. Scott v. Larkin, 13 Yt. 112. This may not strictly be a judgment, in persona. The court had jurisdiction of the cause, but it may be said that it had none of the defendants below. The notice directed by our statute is not in the nature of a process to compel appearance, and submission to the jurisdiction of a court; but for the purpose of enabling the non resident defendant to protect his property from a proceeding in rem. If notified to the satisfaction of the court, execution may issue. If not notified, a bond shall be filed to indemnify against the execution. Where partnership property is attached on partnership debt, in equity, notice on one partner should be sufficient to render indemnity unnecessary. Bissell v. Briggs, 9 Mass. 462.</p> <p>But the decision of the court cannot be examined into in this action, nor can any matter, proper for the court to pass upon, be questioned. If the sheriff return a writ served on the defendant, an audita querela will not lie on the ground of a false return. If the record shows that there was an appearance for the defendant, this action will not lie for any wrong of the party. Dodge v. Haskell, 1 Vt. 491. Stone v. Seaver, 5 Vt. 549. Titlemore v. Wainright, 16 Vt. 173. Spaulding v. Swift, 18 Vt. 214.</p> <p>The statute, Comp. Stat. 244 § 17, it seems to us settles this question in all respects. But the repeated decisions of this court, at all events, set it at rest. Marvin v. Wilkins, 1 Aik. 107, establishes the doctrine that the copy must be left with the defendant actually, at his last abode, if absent, with a person of sufficient discretion ; if out of the state, then where the property was found when attached, or it will not be evidence of legal service; and not even prima facie evidence of notice; so that an actual appearance or independent proof of actual notice is necessary to cure the defect.</p> <p>In the case at bar, the plaintiffs, then defendants, were both out of the state, and were partners — so a copy should have been left for each of them, which it is not pretended was done ; no notice to Paige in any way was ever had or shown; nor copy left for him. Eastman is shown to have had notice of some sort, on the 8th day of May, in Boston, to appear at Bradford, May 10th. If this was notice, then the judgment should have been rendered on the 10th of May; a continuance after and from that day was a discontinuance of the suit as to him. Smilie v. Runnels et al., 1 Vt. 148.</p> <p>No recognizance was given, as required, when the judgment was finally entered, and execution issued, and the case finds all these doings were the acts of Waterman’s attorney.</p> <p>Statutes, (Comp.) 286 § 57, 58, 59. There was not any notice or pretence of any notice to Paige. Spaulding et al. v. Swift, 18 Yt. 214. Alexander v. Abbott, 21 Yt. 476. Paddle-ford v. Bancroft et al., 22 Yt. 529. Whitney v. Silver, 22 Vt. 634.</p>

<p> School Districts. Officers. Taxes. </p> <p>It is not necessary that the moderator chosen at the annual school district meeting should preside at all subsequent meetings of the district during the year; the proceedings will be valid if the district should at a subsequent meeting elect a moderator to preside over that meeting.</p> <p>The prudential committee of a school district refusing to do a particular act, in his official duty, in good faith, not believing it to be a duty, will not create a vacancy in the office; but if a new district should be erected, and the prudential committee of the old district is included within the limite of such new district, it will create a vacancy in the office.</p> <p>The fact that a school district mistook their rights, and the location of their school house proved to be illegal, and upon indictment was adjudged a nuisance, will not effect the validity of the tax raised to build the school house.</p> <p>A public officer is entitled to reasonable intendments in his favor, the same as are applied to the proceedings of courts.</p>

<p> Promissory note. Indorsement, its effect. Indorsee § maker. Evidence. </p> <p>If the payee of a promissory note indorses and delivers the same to the indorsee, as collateral security for money advanced, the indorsement is irrevocable, and it vests the title to the note in the indorsee, and also the right to recover the whole amount due on the note against the maker.</p> <p>And in such case, the indorsee would hold the surplus, after payment of his claim,f' as trustee of the payee of the note,, or of his assignee. :</p> <p>In a suit brought by the indorsee of the note against the maker, testimony tending to prove, that the payee of the note has assigned his interest in the note, and that the indorsee holds the note as collateral security, and that the assignee has tendered to the indorsee the amount due to him from the payee, is inadmissible, and constitutes no defense for the maker of the note, as he must pay to the person legally entitled to receive'it, and to the one the payee has ordered the contents of the note to be paid to.</p> <p>In a suit by the indorsee against the maker of a promissory note, controverted matters, between the indorsee and payee, or one having his interest, cannotbe properly determined, if the maker is a stranger to the transaction, and it in no way effects his liability on the note.</p>

<p> Promissory Notes. Condition. Evidence. </p> <p>A condition to a promissory note, that if the amount of the note is not legally due, upon certain other notes, which are named in the condition, upon which payments had been made, this note is not to be paid, otherwise it is to be paid, is in the nature of a defeasance or condition subsequent, and is for the benefit of the makers, and the burden of proof will lie upon those, ,for whose benefit the condition was annexed.</p> <p>It is not admissible to show hjparol evidence that the notes named in the condition, were by mistake originally made too large; nor is it competent to show by parol evidence, that the contract was different from that expressed in the note.</p> <p>But if the mistake is apparent on the face of the contract, when taken in connec tion with the note, it will be a defense to that extent.</p> <p>In cases where nothing appears to show upon which count a verdict is taken, and some of the counts are gopd, and some bad, the presumption is, that the verdict was upon the good count-. Whitcomb v. Wolcott, 21Yt. 368.</p>

This was an appeal from an order of removal of one Barney Smalley, with his wife and family from said Stowe, to said Brook-field, made hy two justices of Stowe, on the 11th day of March, A. D. 1853. Plea, that the paupers were unduly removed, because their last settlement was not in said Brookfield, and trial by the court.

Assumpsit for money had and received. Plea, the general issue, and trial by the court. On the trial, the plaintiff read in evidence the statement of one Joseph Woolley, from which it appeared that the defendant, Geo. R. Holmes, of Stanstead, in Canada, came to said Woolley’s house, at Derby Line, and enquired of said Woolley, if he got what he, Woolley had told him he did, for three horses that said Woolley had sold in Boston; that.

Holmes, tbe plaintiff, administrator of tbe estate of Harriet N. Holmes. On tbe trial tbe following facts were conceded, viz : That the said George R. Holmes was tbe husband of tbe said Harriet N. Holmes; and that they were married at Derby, in tbe county of Orleans, in September, A. D. 1845, and resided in Derby till tbe death of Mrs. Holmes, in June, 1846, that she died without issue.

Audita Querela brought to set aside an execution, issued by-Charles M. Seabury, a justice of the peace, in favor of the defendant against the plaintiff. Plea, the general issue, and trial by the court.

Assumpsit for money had and received. Plea, non assumpsit, and trial by the court. The plaintiff offered in evidence the deposition of one William F. Mott, Jr., to the admission of which the defendant objected, for alleged insufficiency of the caption and certificate.

This was a prosecution for bastardy. Tbe defendant filed a motion to dismiss the complaint, because he says, “ That said child was bom and begotten in Stanstead, Canada East, and that said complainant, at the time said child was begotten and bom, had no residence in this state; and that the defendant never was a resident of this state.” The County Court, — Poland, J., presiding, — overruled the motion. To which decision the defendant excepted.

Trespass for an ox. The action was originally brought before a justice of the peace, and came to the county court by appeal.

Action op Account. Judgment to account was rendered in the county court, and auditors were appointed, who reported in substance as follows: That plaintiff’s action was founded upon a written contract, of which the following is a copy: “ Otis Thompson will set out one acre of hops, in the rear of N. West’s, for Portus Baxter, he will take all necessary care of them, and prepare them for market.

This is a bill of foreclosure, claiming three notes, specified in a certain mortgage, to be due to plaintiff’s testator, but in the hands of defendant, Sartle.

Assumpsit upon a bill of exchange. Plea, non assumpsit, and trial by jury. On the trial, the plaintiff read in evidence the bill declared on, of which the following is a copy, viz: “ Dolls. $1574,97.

Writ of Error. The assignment of errors in the writ were as follows: “ And now the said Jacob Sulham, by his Guardian, Calvin Sulham, and the said Moses Somers, in fact say, that in proceeding to, and rendering judgment on said verdict, manifest error hath intervened, in this, to wit, that the said Jacob Sulham at the time of the trial of said issue, before said court, was under the age of twenty-one years, and incapable of appearing by himself or attorney in the defense of…

Ejectment for certain lands in Lyndon. Plea, the general issue, and trial by jury. On the trial the plaintiffs offered in evidence: 1. A copy of a deed from Calvin Doolittle to Jesse Doolittle, dated February 12, 1797, of certain lands in Lyndon, including the land in controversy. 2.

Assumpsit ; the action was commenced before a justice of the peace, and came to the county court by appeal. Held: and take their notes and a new mortgage. Denison declined to do this, unless they would pay him $50, on the mortgage debt.

This was a declaration for betterments, filed in an action of ejectment. Plea, the general issue, and trial by jury.

Trespass for thirty-two pine trees, and some other timber, taken from lot No. 4, in the 9 th Eange of lots in Victory. The declaration contained two counts. The plaintiffs claimed under one Samuel A. Chandler. The writ was originally against one Isaac E. Houston and the present defendants, and it appeared that said Houston cut the thirty-two pine trees and drew them to Moose Eiver, and there sold them to the defendants who took them down the river.

Ejectment for lots No. 8, 3d division, right of Oliver Eobinson, and lot No. 3, 4th division, right of Joel Grant, in Lunenburg. Plea, the general issue, and trial by jury.. On the trial, the plaintiffs, to support the issue on their part, read in evidence: 1. A deed from Phinehas Dodge to Daniel Cheney, dated January 4, 1796, of sixty acres of the easterly part of lot No. 8, 3d division in Lunenburg, the same being described by metes and bounds. 2.

. Ejectment for lot No. 48, in the Fifth Division, in the town of Lunenburgh. Plea, tbe general issue, and trial by the court. On the trial, the plaintiff read in evidence, a copy of a deed from Erastus Olcott to Benjamin Dow, dated February 5, 1839, of the west half of said lot No 48. Also a copy of a deed from Randall L. Olcott to Benjamin Dow, of the same date of the east half of said lot No. 48.

Assumpsit. The declaration contained the common counts, for work and labor ; for goods, wares, and merchandize ; for money lent, advanced, paid, &c; and for money had and received, &c. Plea, the general issue and notice.

The facts, upon which the principal questions arising in this case were decided, sufficiently appear in the opinion of the court.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported a balance due the plaintiff of $51,20, subject to the opinion of the court, upon the following facts specially reported: That all the accounts and dealings of the parties were closed on the 26th 'day of June, 1852 ; that both parties understood at this time, that the defendant was indebted to a considerable amount to the plaintiff; but there was a disagreement…

Trespass for killing the plaintiff’s dog. The declaration is in common form.

Trespass for certain articles of personal property, described in the plaintiff’s declaration. Plea, not guilty and notice of special matter, and trial by jury. Held: that where goods of A. were intermixed with goods of B., and were taken by an officer upon a writ against B., that the officer could not be made a trespasser, and that he was not liable in any form, until A. had identified and demanded his goods.

Trespass for 40 stoves and certain other articles of personal property. The case was referred under rule of court, and the referee reported in substance, the following facts: That the plaintiff, who was a deputy sheriff for the county of Windham, on the second day of January, 1851, received sundry writs of attachment against one Robert W. Wiley; and that by virtue thereof the plaintiff attached the 40 stoves named in the declaration as the property of said Wiley.

This was an action brought by the town of Rockingham to recover for expenses incurred by said town, in providing physician, nursing and necessaries for one Sarah J. Sweetland, who was at the… Held: that a settlement acquired by the mother by a second marriage was not communicated to her children, by a former husband ; the court say, the second husband has no control over the children of the first husband, and he is not bound to support them nor entitled to their services.

Trover for a quantity of cord wood. Plea, not guilty, and trial by jury. On the trial, tbe evidence tended to show that on the 31st day of March, 1851, the plaintiff purchased of Benjamin H. Peeler, a farm in Yernon, on which said Peeler then resided, and took a deed of the same, and at the same time purchased of him certain personal property and took a bill of sale of the same.

On the trial, the administrator produced a book, in which were certain entries made by the intestate in his life time, at the back part of said book, which the administrator contended, tended to show that such entries were evidence of advancements to the appellants, and were so intended by the intestate.

Petition for a writ of certiorari. The facts in the case are substantially as follows: In 1841, the selectmen of Townshend, laid out the highway in question, and made the usual orders ; that said highway remained unbuilt till the spring of 1851, when the town chose an agent to superintend the building of the road; that in the meantime the lands had changed owners several times, with the exception of one farm belonging to J. Franklin, Jr. That in August, 1851, the petition…

Trover for four horses, four harnesses, four whiffietrees, two neck-yokes, and one wagon.

The bill charges, that January 19, 1850, the defendant and Gaius R. Goodenough, her then husband, owned as tenants in common a farm situated partly in Brattleboro and partly in Guilford, of which the defendant owned five undivided eighths for life, and Gaius R. the other three-eighths, and the remainder of the five-eighths at defendant’s decease.

Book Account, in which, the said Page, Lovewell, Sawyer, and Taplin, were summoned as the trustees of said Merrill, the principal debtor. The book account between the plaintiffs and defendant, Merrill, was referred to an auditor, who returned a report in favor of the plaintiffs, and judgment was rendered thereon, according to the report, for the plaintiffs.

Assumpsit upon a promissory note. The defendant pleaded several pleas in bar, to one of which the plaintiff replied specially; to which replication the defendant demurred. The facts in the case sufficiently appear in the opinion of the court. The County Court, September Term, 1852, — Poland, J., presiding, — proforma adjudged the replication insufficient, and rendered judgment for the defendant. Exceptions by the plaintiff.

Assumpsit on certain promissory notes. The defendant among other things, pleaded an offset founded on the breaches of covenant, in a certain deed from the plaintiffs to the defendant. The case was referred under a rule of court to a referee. The question raised and decided in this case, sufficiently appears, without any further statement of the facts, from the opinion of the court.

E. Harrington. Plea the general issue, and trial by the court, at the March Term, 1852, Pierpoint, presiding Judge.

Trespass on the case, for running upon - and killing plaintiff’s cow, alleged to have happened by the neglect and refusal of the defendants to erect a fence upon the side of their road, as by their act of incorporation they were bound to do, and to build upon the land of said plaintiff sufficient cattle-guards. Plea, not guilty, and trial by jury. The facts, pertaining to the questions passed upon and decided, sufficiently appear in the opinion of the court.

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

Qui Tam action, founded upon Chap. 104, § 23 and 24 of the Comp. Stat. of this state, being Chap. 95 § 19 and 20 of the Revised Stat. Plea, not guilty, and trial by jury. The plaintiff, to support the issue on his part, produced in evidence a certified copy of a deed, dated June 14, 1848, from Jedediah Boynton, to the defendant of several pieces of land situated in Hinesburgh, with the mill and machinery thereon, being the same described in plaintiff’s declaration.

These were actions on the statute; one brought to recover the penalties for selling flour without having been inspected; the other brought to recover the penalty for inspecting flour, without having been duly appointed to that office. Both cases were tried on demurrer; and the County Court, — ■ Pierpoint, J., presiding, — rendered judgment in both cases that the declaration was insufficient, and for the defendants to recover their costs.

Trespass for taking and carrying away of the separate property of the said Martha, wife Of said Kendall, four tons of hay, one cow, and twenty bushels of oats. Plea, not guilty, and trial by the court. The parties agreed upon the following facts.

Audita Querela, brought to set aside the judgment of a justice of the peace, on the ground that the complainant had no notice of the suit, except such as was conveyed to him by a copy, in which he was notified to appear at L. Henry’s office in Waterbury, on the 19th day of February, 1853, at one o’clock, P. M.; and that the complainant, on said 19th day of February, 1853, repaired to said Waterbury, to make defense withhis counsel and witnesses, and about two o’clock, P. M.,…

This was an action on the case against the defendants. Plea, the general issue and trial by the court. It appeared on trial, that one Joel Battey had recovered against the plaintiffs for damages sustained upon a new road, built by the defendants, in lieu of an old road taken by the defendants for the track of their railroad. The defendants were notified of the-suit of Battey, but declined interfering.

Assumpsit for a quantity of-starch, and freight of the same. Plea, the general issue, and trial by the court. Held: that this agreement constituted a partnership, inter se. Green v. Busby, 2 Bingham N. C. 108. This is not a case where money was paid to launch a partnership as was the case in Yenning v. Leclcer, 13 East 7. Williams v. Benshaw, 11 Pick. 79. Belmer v. Smith, 20 C. L. R. 302. Dab Dab v. Bosley, 16 Johnson 33.

Scire Facias on a recognizance entered into before a justice of the peace, in a prosecution for bastardy against one Johnson, •conditioned that said Johnson should appear at the county court and perform the order of said court, &e. The defendant pleaded three several pleas in bar; in the first and second he set forth that the principal was sick and wholly unable to appear, or be surrendered in discharge of his bail, at said court, and so continued during all said term of…

Indictment for bigamy. The first count set forth, “ that Rob- “ ert LaBore, of Potton, Canada East, on the — day of-, “ A. D. 18 — , at --, in ■-, did marry one Catherine “ Pratt, and her, the said Catherine, then and there had for his “ wife, and that the said Robert LaBore afterwards, to wit, on the “ 24th day of April, A. D. 1853, at Marshfield, in said county of “ Washington, with force and arms, at said Marshfield, feloniously “ did marry, and to wife did take, one Mary…

Assumpsit on a promissory note. Plea, general issue, and statute of limitations, and referred under rule of court.