Volume 27 — Vermont Reports

Contract. Resort to parol, testimony in construction of written, contracts. Assumpsit for work and labor. Plea, general issue, trial by jury, September Term, 1852,— Poland, J. presiding.

Negotiable paper, by what law governed, and how far subject to the operation of the trustee process. Trustee Process.

Contract. Assumpsit, upon a contract in writing, made by the defendant at Jericho, May 11, 1850, in the following words: “ Know all men by these presents, that I, Nehemiah Prouty of “ Jericho, County of Chittenden and State of Vermont, for, and in “ consideration of the sum of five hundred dollars, paid to me by “ Orley Thompson of said Jericho, the receipt whereof I do hereby “ acknowledge, have agreed and solemnly promised, and do agree “ and solemnly promise, to make an…

<p> Wife’s personal property. Joinder of wife as plaintiff. </p> <p>Trespass. By the writ and declaration, the defendants were summoned “ to answer to Jonathan Rawlins and Lucy Rawlins, “ wife of the said Jonathan, — in a plea of trespass for that the said “ defendants, at Huntington, on the 14th day of August, A. D. “ 1851, with force and arms, one bay mare of the value of fifty “ dollars, and one sucking colt of the value of twenty dollars, the “ proper goods and chattels of the said Lucy Rawlins, seized, took “and carried away”, &c. To this declaration the defendants demurred, and assigned several special causes of demurrer, which become immaterial under the decision of the supreme court.</p> <p>The county court, May Term, 1854,— Peck, J., presiding,— adjudged the declaration sufficient, and rendered judgment for the plaintiffs.</p> <p>It is not alleged that the tresspass was committed prior to the marriage; it will, therefore, be taken that it was subsequent. The cause of action, then, had its inception, as well as its completion, after the marriage, and the husband should have sued alone. The misjoinder of the wife can be taken advantage of by demurrer. 1 Chit. PI. 73-4; 2 Saund. (47, g.) ; Little v. Keyes, 24 Vt. 118. Hill et ux v. Royce, 17 Vt. 190. 5 U.' S. Digest 132. ■</p> <p>If the property of the wife is the meritorious cause of action she may join. Gay et ux v. Estate of Rogers, 18 Vt. 345. The declaration expressly alleges that the horses were the wife’s property.</p>

Jurisdiction. Sufficiency of declaration for recovery of interest. Application of payments on judgments to extinguish interest. Variance. Debt.

Pleadings. Statute of limitations. Promissory notes, when not recoverable under the money counts and when attested so as to be sueable for fourteen years. Records and judgments of other states. Debt.

Assignments, when void under the act of 1843, and when considered as partial only. Extent of trustee’s right to offset claims in his favor. Trustee Process.

Haik’oad company. Change in location of their road. When entitled to occupy, and when obliged to pay for land taken for their rail road. Debt upon an award by commissioners, of the damages sustained by the plaintiff on account of his land being taken by the defendants for the use of their railroad. Plea, the general issue and trial by jury, May Term, 1854,' — Poland, J., presiding. Upon the trial, the following facts appeared.

Obligation of railroad companies to fence their road. Negligence in the running of their trains. Trespass on the case, to recover the value of two cows killed upon the defendant’s railroad by one of their engines. Plea, the general issue, and trial by jury, May Term, 1854,— Pbok, J., presiding. Upon the trial the following facts appeared.

<p>The assignee of a lease wbo agrees, with the lessee to pay to the lessor the rent for the remaining portion of the term which the lessee is bound to pay, will not be liable as the trustee of the lessee for the rent which becomes due from him, under this arrangement.</p>

[IN CHANCERY. ] Appeal. Oontempf. Appeal from an order of the court of chancery.

Variance. Liability of towns for insufficiency of highways. Burden of proof. Negligence. Travelling in the night. Trespass on ti-ie Case, to recover for injuries alleged to have been occasioned by the insufficiency and want of repair of a public highway.

[IN CHANCERY.] Authority of towns in the appropriation of money. Their right to make appropriations for the benefit of engine and hook and ladder companies. Appeal from the court of chancery.

Written contracts, when and how far explainable by parol testimony. Assumpsit upon a contract in writing by tbe defendant to transport tbe plaintiff's freight, during tbe navigable season of 1852. The cause was referred and tbe referees reported the following facts.

Action upon.a hill of exchange or promissory note in the name of a mere agent. General counts. Assumpsit. The declaration contained only the general money counts, under which the plaintiff claimed to recover the amount due on a bill of exchange, drawn at Toledo, Ohio, April 21st, 1854, by W. S. Johnson & Co., upon the defendant, payable “to the order of M. Johnson, Cashier,” and accepted by the defendant.

Boole account. Tender. Book Account. Tlie auditor reported that the charges of the plaintiffs were admitted to be correct, as were also those of the defendant, except a charge for an order drawn by one Win.

Sale of an entire chattel hy one of its cotenants. Trover for the one fiftieth part of the steamboat “ Francis Saltus”, her tackel and furniture. Plea, the general issue; trial by jury, November Term, 1854,— Peck, J., presiding.

Sale of intoxicating liquors. Assumpsit for goods sold and delivered. Plea, general issue, trial by the court, November Term, 1854,— Peck, J., presiding. The plaintiffs claimed to recover for a bill of liquors sold to the defendant, February 28, 1851, amounting to $233,31, and for several other bills of liquors sold to him after that time amounting to about $350,00, after deducting payments therefor to the amount of about $173,00.

Insurance. Contract to sue within a limited time. Assumpsit on a policy of insurance, issued by the defendants to the plaintiff on the 1st day of February, 1849, insuring against fire for the term of one year thereafter certain property of the plaintiff which was destroyed by fire, on the 6th day of May, 1849.

Liability of railroad corporations for nuisances. Their rights in crossing highways. Indictment.

Railroad companies. Common carriers. Inability of corporations. Assumpsit. In October, 1852, the defendants contracted with the plaintiffs to transport for them to the city of Troy, N. Y. from Burlington, Mallett’s Bay, Georgia, St. Albans Bay and Highgate, certain quantities of hay, which the plaintiffs had at those places, at certain specified rates per ton, varying with the localities at which the hay was to he received.

New trial. Surprise. New discovered evidence. Petition for a new trial on the ground of surprise, and of new discovered evidence. In October, 1845, the petitioner commenced a suit in his favor, returnable to the Chittenden county court, against one Alexis Chandler, in which the petitionees werq summoned as the trustees of the said Chandler.

<p> Sufficicency of certificate of subscribing authority to entitle d debtor to be discharged from arrest. </p> <p>Habeas Corpus.</p>

<p>Conveyances of land, by idhat law governed. Sufficiency of their acknowledgment or proof and record prior to 1797. Co-grantor, his competency to prove execution of deed by the other's, and his presumed interest.</p> <p>Ejectment for lot No. 50, in that part of Williston which was formerly a part of Burlington. Plea, the general issue and trial by jury, September Term, 1852,— Poland, J., presiding.</p> <p>The plaintiff’s testimony tended to show that Thomas Youngs was one of the original grantees of the town of Burlington, which was chartered in 1763, and that said lot No. 50 was drawn to his right; that by his will made in 1792, and proved in 1797, he devised to the plaintiff, then the wife of Joseph Townsend, who died in 1843, “ a certain right of land which I purchased, lying on “ the main, supposed to be in the state of Vermont.” The possession by the defendant of said lot was admitted. The defendant read in evidence, a deed of said lot No. 50, from George Stevens, collector, to Thaddeus Tuttle, dated April 4,1818, and a succession of conveyances from said Tuttle down to the defendant, and it was admitted that the possession had been held and claimed by the successive grantees of Tuttle since 1820. The defendant offered in evidence a copy of a deed from Thomas Youngs, Thomas Aslop, John Wright, Edmond Weeks, and John Wright, Jr. to Heman Allen, dated April 10,1773, conveying all their right, titles, or shares of land in Burlington, which were granted to them in the charter of said town, which was recorded in Burlington in February, 1795, together with evidence respecting the colonial statutes of New York in relation to the acknowledgment and proof of deeds. To this deed, the names of Job Wecleted, Obadiah Wright and John Wright appeared to be signed as attesting witnesses, and the only certificate of the acknowledgment or proof of said deed was in these words, “Mem“orand. — That fourteenth day of April, 1773, personally appeared “ before me, Henry Cruger, one of his Majestic’s counsel for the “province of New York, John Wright, and did acknowledge that “ he signed, sealed and delivered this as his own free will, and did “ also upon his solemn affirmation declare, that he saw all the per- “ sons whose names are subscribed sign, seal and deliver this as “ their free and voluntary act and deed; and and also see the sub- “ scribing witnesses sign as witnesses.” “Hen. Cruger.”</p> <p>The plaintiff objected to the introduction of said copy in evidence for the reason that said certificate was not sufficient proof of the execution of the deed to permit it to be legally recorded, or make a copy of the record evidence. This objection was overruled and the copy admitted in evidence, and upon the testimony introduced, the court decided that the said acknowledgment and proof was legal and valid, and that the copy was legal evidence of said deed, and directed a verdict for the defendant, to which the plaintiff excepted.</p> <p>The copy of the deed from Thomas Youngs and others to Heman Allen was improperly received.</p> <p>The defendant does not claim or show any possession under this deed, and therefore no presumption in its favor can arise from lapse of time. Williams v. Bass, 22 Yt. 352.</p> <p>When this deed was recorded, no law existed authorizing deeds, acknowledged or proved in another state prior to 1787, to be recorded. The act of March 8, 1787, is simply prospective, and did not authorize this record. The next act, passed March 6,1797, after this record was made, gave the record no new virtue. If it could help the original deed, it could not make good a record, which, at the time it was made, was of no effect. The act of recording was an act the officer was not authorized or required by law to perform, as to tins deed. For that reason neither his record, nor a certified copy thereof, can be admitted in evidence. Hart v. Gage, 6 Yt. 170. Carter v. Champion, 8 Conn. 549. Bushy. Van Ness, 12 Yt. 92. Ishamy Benn. Iron Co., 19 Yt. 230.</p> <p>The lex fori furnishes in all cases, prima facie, the rule of decision ; if either party wishes the benefit of a different rule or law, e. g. the lex domicilii, lex loci contractus, or lex loci rei sitce, he must aver and prove it. Monroe v. Douglas, 1 Sel. 452. By the the laws of Yennont, the proof oí the execution by the grantor has never been received, where Ms acknowledgment could be procured; and Thomas Youngs was living and resident where-the certificate was made, until 1797.</p> <p>John Wright was a party to the deed and therefore incompetent to prove it. Interest in an instrument 'disqualifies a subscribing witness. Siuire v. Bell, 5 T. E. 371. No matter if the amount of interest be small. Burton v. Ilinde, 5 T. E. 174. The wife of a grantor is incompetent. Smith v. Chapman, 4 Conn. 344. Carter v. Champion, 8 Conn., 549. Nor can the grantee identify the grantor before the certifying officer. Goodhue v. Berrien, 2 Sandf. Ch. E. 630.</p> <p>If the deed from Thomas Youngs and others to Heman Allen, in 1793, was a good and valid deed, the plaintiff acquired no title under the will. If possession had been taken under the deed, and continued for thirty years, the deed would have proved itself. Jackson v. Moore, 13 John. 513. 3 Johns. Cases, 117-123. But posses-ion alone is not the only confirmation of an ancient deed, 2 Cow. & H.’s notes, 1313. If all the circumstances show satisfactorily that a deed was given by Thomas Youngs of which this is a copy, it is enough. Jackson v. Laraway, 3 Johns. Cases 283 and note 292. The certificate is one fact which goes to show it. The court, after the lapse of eighty years, will not presume a fraud when nothing is shown on which to base such a presumption. Stevens v. Griffith, 3 Yt. 448. The record of the deed in 1795, is another fact to show its existence, which the court will take into consideration after the lapse of more than fifty years. 2 Cow. & H.’s notes 1315. If it is necessary that there should have been a law in force in 1795, authorizing the deed to have then been recorded, the court should presume it. Brotan v. JEdson et al, 23 Yt. 435. It is not to be presumed that a recording officer makes records of p>ap>ers that are not to be recorded. Booge v. Parsons, 2 Yt. 456. We think the statute of 1787 authorized the recording of the deed. If not, the constitution adopted in 1792, authorized it.' But if there was no law before 1795 authorizing it, the act of 1797 gives force and validity to the record actually made.</p> <p>The record of the deed is full proof of the deed itself from Youngs to Allen. 2 Aik. 239. 2 Yt. 456. The deed being one of which the defendant is not entitled to the custody, the copy coming from the place where the deed should be recorded is all that'it is necessary for the defendant to show. 35 C. L. R. 353, 55 Do. 156. 13 M, &W. 519. 23 Yt. 325. 2 Yt. 456. 2 Aik. 377.</p>

Contract. Book Account. The first item in the plaintiff’s account was a charge under date of September, 1847, for “ extra work for bridge abutment, Sec. 4, on Burlington point, rock excavation, $139.50,” in reference to which, the auditor reported the following facts :— Two contracts in writing were entered into between the defendants and Sewell F. Belknap for the construction of the defendant’s road, one dated in November, 1845, and the other in November, 1846, copies of…

Arbitratin'1 s award, for what causes invalidated. Construction of various provisions in contract for building railroad. Conclusiveness of engineer's estimate. Extra worh. Authority of assistant engineer to bind the company. Defect in worh, when a bar to a recovery for the performance of it. Costs. Book Account. The only items in the plaintiffs’ account which were considered in the supreme court were, Item 4 Excavating for turn-table at Winooski depot, $49.42 “ 5.

Power of the legislature to alter or repeal charters of private corporations ; their police powers.

Sale of growing trees. Statute of frauds. Contracts executed and executory. Trespass for cutting down growing trees of the plaintiff, &c. plea the general issue; trial by the court, December Term¿ 1852,— Peck, J., presiding.

Duty of attaching officer. Trespass on the case for neglect of duty by the defendant in not preserving property attached. — -Plea, the general issue; trial by the court, June Term, 1854, — -Peck, J., presiding.

Jurisdiction. Costs. Bill of sale and parol testimony respecting it. Trover for 5,000 pounds of wool and 25 wool-sacks. Plea, the general issue ; trial by jury, June Term, 1854, — Poland, J., presiding.

Repair of county buildings. Assumpsit on certain county orders with the general counts. Plea, the general issue; trial by the court, September Adjourned Term, 1854,— Peck, J., presiding.

Oounty orders not negotiable. Assumesit for the recovery of the amount due on three orders drawn by the judges of the county court of the county of Franklin upon the treasurer of said county. One of these orders was given to and made payable directly to the plaintiffs; one of the others was given to and made payable to the order of Lewis II.

Agency. Illegal sale. Appropriation of payments. Book Account. The plaintiff’s account was for four bills of liquors sold to the defendant. The plaintiff was a wholesale dealer in liquors in the city of New York, and employed one William. W. Drew, by the year, for a salary, to solicit orders, in this state, upon him for liquors.

Illegal contract. Assumpsit for money liad and received, money paid, goods sold, &c. Plea the general issue; trial by jury, December Term, 1854, — Peck, J., presiding.

Act of 1852, to prevent traffic in intoxicating liquors. This was a proceeding under the twelfth section of the act entitled “ an act to prevent traffic in intoxicating liquors for the purpose of drinking,” approved November 23, 1852, (Laws of 1852, p. 23,*) which was brought into the county coux-t by appeal in the manner provided by said act.

Probate and guardian’s bond. Debt upon the following bond, “ Know all men by these pres- “ ents, that I, David Webster, of Constable, in the county of Frank- “ lin, in the state of New- York, as principal, and David Strong, of “ North Hero, in the county of Grand Isle, and state of Yermont, “ as surety, are liolden and firmly bound and obliged unto Joel “Allen, Esq., judge of the court of probate for the district of “ Grand Isle, in the penal sum of one thousand dollars,…

<p> Amendment of town and school district records. </p> <p>Trespass for taking a cow. The defendant justified as the collector of a tax voted at a school district meeting; to which the plaintiff replied that there was no legal school meeting held at the time and place named. Trial by jury, August Term, 1853,— Peck, J., presiding.</p> <p>Upon the trial, the defendant offered in evidence the book of records of the school district, from which it did not appear that the warning, for the meeting in question, had ever been signed by the clerk of the district, further than that the attestation immediately under the warning was signed by the clerk. This was objected to and the defendant then offered parol testimony to prove that the original was signed by the clerk; this testimony was objected to, but was admitted, and the clerk of the district testified that such was the fact, and from his testimony it appeared that he was the clerk at the time of said warning and also at the time of the trial, but that another person had been the clerk during a portion of the time between those periods.</p> <p>The defendant then moved the court to allow the clerk, who was then on the stand as a witness, to amend his record by adding on the record, his signature as clerk, to the record of the warning, to which the plaintiff objected; the court decided that they had no power over the clerk and could give him no directions, but said that in the opinion of the court, the clerk had a right, if he chose to do so, to amend the record in that particular, if such amendment would be according to the truth, but that the clerk must judge for himself, whether he would or should make such amendment, and the court added, that if such amendment was made, the record, in the opinion of the court, would be admissible. Thereupon the clerk amended the record by adding his signature as clerk to the record of the warning, above his signature to the attestation to the warning, and above said attestation, in the book of records.</p> <p>The record was then admitted in evidence and the question submitted to the jury whether the original warning was or was not signed.</p> <p>The court should not have permitted the amendment, Hadley v. Ohamberlin, 11 Yt. 618.</p> <p>The clerk, after having been out of office could not, on again coming in, amend or alter the record of meetings held while he was first in office. Certainly, if he was out of office he could not amend his records, Hartivell v. Littleton 13 Pick. 229. School D. in Stoughton v. Atherton, 12 Mete. 112.</p> <p>The statement of the court as to the right of the clerk to amend the record, was not judicially made and is not the subject of error. Durfey v. Hoag et al, 1 Aik. 286.</p> <p>The clerk had a right to amend his record according to the truth, and it was his duty to do so. Durfey v. Hoag, ub. sup. Tufts v. Aiken, 13 Yt. 490.</p>

Collusion between the original parties, a defence to the bail. Duplicity. •Debt on a recognizance for an appeal, by one Hamilton Babcock, from the judgment of a justice of the peace against him, in favor of the plaintiff, on the 12th day of November, 1845. The declaration contained the usual and necessary averments, in reference to which no question was made.

Audita Querela. Practice. Audita Querela. The complaint set forth the issuing and service of a writ in favor of the complainants against the defendant, returnable before Albert C. Butler, justice of the peace, and that at the time and place set in said writ for trial “the said “ eleventh school district, by the prudential committee and cleric “ of said district, came to and before said justice Butler at the time “ and place set for trial as aforesaid, and jirojiosed, claimed…

Contract. Exchange of work. Book Account. In April, 1849, the plaintiff, who was a blacksmith, and the defendant, who was a wagon-maker, mutually agreed that they would exchange work, the defendant to take the work of the plaintiff, and the plaintiff the work of the defendant; and at the same time the plaintiff agreed to receive payment of the balance of $1.11 then due him in the same way that his subsequent account was to be paid.

<p>If a iiersoiij at one and tlie same time, executes and delivers separate deeds to two different persons, by each, of which the same piece of laud is conveyed, and neither is aware that the piece in. question is conveyed in the deed of the other, and both deeds are left for record at the same time; each of the grantees will become entitled as against the other, to a moiety of the land; and the claim of either against the grantor, upon, the covenants in his deed, will be only for the value of the other moiety.</p> <p>In an action of covenant, payments made by the covenantor to the covenantee on account of the breach of his covenant may be given in evidence, in mitigation of damages, under the plea that he has kept and performed his covenant.</p> <p>But if such payments are relied upon as a bar to the action they should be specially plead. Bennett, J.</p>

School district tax. Its assessment on real estate. Pleading. Trespass for taking two oxen.

Sale of articles to he thereafter manufactured. Purchaser’s acceptance of them toith latent defects. Construction. Book Account. The following facts were found and reported by the auditor. In February, 1848 the defendant sold to the plaintiff a horse, for which the plaintiff agreed to pay a one-horse buggy wagon, worth sixty dollars, to be delivered by the 15th of Junefollowing, and ten dollars in money, payable on demand.

Depositions. Upon tbe trial of this case, June Term, 1854, — Collamer, J., presiding, — the deposition of Ephraim Moulton, Jr., was offered by the plaintiff, and objected to on account of its being in the hand writing of the son of the plaintiff’s attorney, and written by order of the said attorney.

<p> Partnership account. </p> <p>Book account. The auditors reported that the plaintiffs who were partners in the lumber business sold a quantity of lumber to the defendant Chapman, to he used, and which was used in building a steamboat for an association of individuals styling themselves the “ Champlain Steamboat Company,” of which the said" Chapman was agent, and of which the plaintiff Green was one of the members, together with the other defendants in this suit.</p> <p>Other facts in reference to the organization and proceedings of this association, which was, as it appeared, a mere partnership, and in reference to the agency of the said Chapman, were found and reported by the auditor, which, under the disposition which .was made of the case, it becomes unnecessary to mention.</p> <p>The report being returned, the defendants moved to dismiss the suit for the reasons, 1. That it appeared that Green, one of the plaintiffs was also one of the defendants. 2. That the plaintiffs’ remedy was in equity alone.</p> <p>The county court, June Term, 1854, — Collamer, J., presiding, — dismissed the suit, to which the plaintiffs excepted.</p> <p>relied upon the acts of 1852 relating to actions between copartners, and actions of account, (Laws of 1852, p. 8, 9.) and the act of 1851, relating to defendants in actions on joint contracts, (Laws of 1851, p. 6.)</p> <p>The motion to dismiss was well taken. The plaintiff Green being a defendant, the case is within the principle that at law, a party cannot sue himself. Mainwaring et als. v. Newman, 2 B. & P. 120. Bosanquet v. Wray, 6 Taun. 597. Holmes y. Higgins 1 B. & C. 74. Jones et als. v. Yates et al, 9 B. & C. 532. Burly Sf Harris v. Harris, 8 N. H. 233.</p> <p>This objection is not obviated by No. 7 of the acts of 1851, (p. 6,) which simply cures defects of misjoinder and nonjoinder.</p> <p>If the plaintiffs have a remedy it is in equity alone.</p>

Parol award. Amendment of written award. Debt upon an award. A justice suit, commenced in favor of the plaintiff against the defendant, was, by the written agreement of their respective attorneys, submitted to a referee. The submission was in writing but contained no provision respecting the award.

Nonresidents. Arrest. Privilege. Assumpsit upon bills of exchange drawn in September, 1853. The writ by which the suit was commenced, issued as a capias and was served by arresting the body of the defendant.

Proceedings in actions on joint contracts. Discharge of an indemnity. Book Account.

<p>The plaintiff contracted to do the carpenter and joiner ■work of the defendant’s house, for ■which ho was to receive $300.00 j $100.00 of which was to be paid by the 1st of July and the remainder not until after the completion of the job, which was to be by the 15th of August. The defendant’s neglect to pay the $100.00 on demand after the 1st of July was held to be a good cause for the plaintiff’s abandoning the contract.</p> <p>In such a case the plaintiff would be entitled to recover for the work done by him, a pro rata compensation according to the contract price.</p>

<p>The commissioners to set out the dower of the widow of E. W. returned that they had set out to her u two stalls at the southwest corner of the horse barn, and twelve feet square {{over said stalls for hay; also threo west rows of apple-trees on the west side of the or- “ chard, running north and south iu tho centre between the third and fourth rows.” In reference to the stalls, &c., it was held, that that the proceedings of the commissioners were not void for uncertainty; and that an action of ejectment would lie to recover the possession of the premises described.</p> <p>In reference to the three rows of apple-trees, it was held, that the territory upon which they stood and all west of a line running north and south between tho third and fourth rows was set out, and not simply a right to take and use the fruit from the trees.</p> <p>If the grantor in an absolute deed is permitted by the grantee to remain in possession of tho granted premises, he becomes his quasi tenant, and both may be joined as defendants in an action of ejectment brought by a third person claiming to own the premises.</p>

<p> Partnership. Authority of Agent. Ratification. </p> <p>Book Account. The action was originally commenced in the comity court in favor of the intestate Orr N. Town, then living, against Blanchard Rand and German F. Hendee, as partners under the name of Rand & Hendee, and came into this court by exceptions, which were sustained, whereby it became necessary to recommit the cause to an auditor. This was done at a previous term and at the present term the auditor made his report. During the pendency of the suit both the said Town and Rand deceased. The administrator of Town entered and prosecuted the suit, which proceeded, after the death of Rand, againt Hendee alone.</p> <p>The facts in the case, as reported by the auditor were substantially as follows. The original defendants Rand & Hendee were holden as sureties to the Bank of Rutland, upon promissory notes of Strong & Buck, merchants in Pittsford, against whom suits were commenced on said notes, judgments obtained, and the goods in their store levied upon and advertised for sale. It was so arranged by all the parties interested, that the goods, in July, 1843, were sold by the sheriff, and purchased at the sheriff’s sale by the defendants who gave their own note to the Bank of Rutland, and a store was opened under the name of Rand & Hendee, in which Buck was to sell the above goods, together with about $1400. worth of other goods which the said Strong & Buck then had coming from market, and apply the proceeds of said sales, together with his collections on Strong & Buck’s demands, to the payment of said bank claim and some other liabilities which the defendants were under for said Strong & Buck. It did not appear that tliey were to have any further interest in the business, except for the extinguishment of their liabilities. Under this arrangement Buck took charge of the goods in the store, and sold for cash, produce or credit; the business being transacted under the name of Eand & Hendee, but they taking no active part whatever in it. The business proceeded in this way until June, 1845, during which time additions were occasionally made to the goods in the store, which were sometimes obtained, on written orders to the merchants in the cities, for the defendants, and sometimes for Buck on his own credit or with means obtained from the store; all of which were commingled with the old, and sold with them, without any distinction. Some goods were occasionally obtained from one Lillie, who was then teaming to and from Boston and had an account at the store from which he obtained his family supplies. The transactions with Lillie were all in the name of Eand & Hendee, but were attended to entirely by Buck, and it did not ap>pear that the defendants had any knowledge respecting them, except that upon one occasion Lillie and Eand had a conversation about his letting some goods go into the store, when Eand told him that he had no objection to his letting his goods go into the store, whenever they were wanted, but he must get his pay for them. In the fall of 1843, it was agreed between the defendants and Buck that it was expedient to purchase some new goods, such as would help sell off those on hand; and Hendee went with Buck to Boston for that purpose and purchased, among others, a small bill of goods of the plaintiff. These purchases were made by Hendee in the name of Eand & Hendee, in whose name they were marked and directed, though they were selected by Buck; and Hendee explained to all of whom he purchased, the connection he and Eand had with the store, and informed them that they were not going into the mercantile business, but were only buying to help sell off those on hand. It was the expectation of Buck, and of Eand & Hendee, that these goods would be paid for by Buck from the avails of the sales. In the fall of 1844, Buck solicited of the defendants, permission to go to Boston and purchase goods on their account, sufficient to fill up the store; but they refused and told him they would neither buy any more goods themselves, or give him authority to get any on their account; but on Buck’s representation, that he could obtain goods on his own credit, if they would give him a writing that he might himself sell and have the avails of all the goods he might thus obtain, they gave him a writing of the following tenor:</p> <p>“Pittsford, Yt., 5th October, 1844 Gents. Whatever amount “ of goods you may sell or consign to Addison Buck, to be sold in “ our store with our goods, he is at liberty to draw out the avails of “ all said goods sold or said goods, and oblige yours.”</p> <p>“Blanchard Rand.</p> <p>“ G. F. Hendee.”</p> <p>With this writing Buck went to Boston and bought of the plaintiff the bill of goods now in controversy, representing that he was the agent of the defendants; and they were charged by the plaintiff directly to the defendants at the time of their sale and delivery. Said Buck made jJurchases of other merchants at this time, all of which amounted to thirty-three hundred dollars. It ajípeared that Buck showed the above writing to some of the merchants of whom he made purchases, but whether it was shown to the plaintiff or not, did not appear; all of the goods so purchased were marked and directed to Rand & Hendee, and were received and sold by Buck in connection with the old goods then remaining on hand, without malting any distinction between them winch would enable him or any other person to account for the avails of the new goods separate from those of the old. Buck continued selling goods in this way until March, 1845, when the store of goods was again attached, at the suit of the Bank of Rutland against Rand & Hendee upon the debt incurred by them in bidding off the goods in July, 1848, and the goods were subsequently sold on executions obtained in said suits and others. The defendants requested the sheriff who sold the goods not to sell any on the execution against them except those they had themselves purchased, and it did not appear that any others were. The sheriff had, at this time, attachments against Strong & Buck. The auditor reported that, if upon the foregoing facts the plaintiff was entitled to recover the bill of goods sold by him in October, 1844, the balance was $199.55 — otherwise that there was nothing due from either party.</p> <p>The defendants were partners as to the public if not between each other. Peacock v. Peacock, 2 Camp. 45. Gow. on Part. 13-15.</p> <p>The defendants were bound by the contract of their agent, though made without authority and contrary to instructions, if they acquiesced in the purchase, and the goods came to them use. Walsh v. Pierce, 12 Vt. 130. 12 Stark Ev. 32 and note. 2 Kent, 478, 484, 615. Dunlaps Paleys Agency, 165-6-7-8. Amorysr. Hamilton, 11 Mass. 103. Qairnes v. Bleecker, 12 Johns. 300. The law raises the presumption that they do acquiesce if they fail to give notice of their dissent within a reasonable time after notice of the fact. Totole v. Stevenson, 1 Johns. Cases, 110. 2 Kent, 480. Dun-laps Paleys Agency, 31, 113,171.</p> <p>In any view that can be taken of the case, no authority in Buck to purchase on the credit of the defendants can be implied. He was not acting within the scope of his authority, and the plaintiff was bound before he gave the credit to ascertain the extent of that authority. Story on Agency, 116-17, §126-7 and note.</p> <p>The action on book is not the plaintiff’s proper remedy in this case, Pratt v. Bryant et al., 20 Vt. 333. Bundy v. Ayer, 18 Vt. 497. Brown v. Billings, 22 Vt. 9.</p>

Biversion of water course. Action, on the case for obstructing a water course. Plea, tbe general issue, trial by jury, March Term, 1854,— Pierpoint, J., presiding. The plaintiffs owned a piece of land tM-ough wMch the stream of water in question passed, and upon wliicli stood a saw-mill.

Infancy. Trover for a harness and a five dollar bill. Plea, the general issue; trial by the court, March Term, 1854,— Pierpoust, J., presiding.

Sunday contract. Assumpsit upon a promissory note, dated September 30th, 1849, payable to Franklin B. Goss or bearer. Plea, the general issue; trial by jury, March Term, 1854, — Pierpoint, J., presiding.

Trustee process. Negotiable paper discounted by a bank. Trustee Process. The writ was served December 13th, 1852. The trustee disclosed that on the 3.d day of December, 1852, he gave to the principal defendant his promissory- note for $41.48, payable to the said defendant, or his order,- hi thirty days from date; that on the 20th of December, he received' a notice from the bank of Rutland, that they had discounted said note.

Recognizance. Supersedeas. Debt on a recognizance. The declaration set forth the granting of a tax by the legislature, the issuing of a warrant, for the collection of a portion thereof, to the constable of' Poultney, his delinquency, the issue and return unsatisfied of an extent against him, and the issuing thereupon of an extent against the inhabitants of Poultney, the receipt of said extent by the sheriff of Eütland county and a levy of it upon personal property, the…

Parol testimony. School teacher's certificate. Book Account. The plaintiff’s account was for 'teaching school for tlie defendants for one month, which the defendants admitted was done under their employment, at the price charged.

Ad damnum, in the justice ejectment writ. This was a proceeding under the twenty-fourth section of the •44th chapter of the compiled statutes, commonly termed the justice ejectment act, commenced before a justice of the peace.

<p>In an action of book account, if the debtor side of the plaintiff’s account is more than one hundred dollars, the county court has original and exclusive jurisdiction j and this jurisdiction is nob affected by the sum. that is ultimately found duo.</p>

<p>The claim of a tenant in common upon his cotenant, for having received more than his share of the property in which they have a common interest, may under the act relating to the action of account (Laws of 1852, p. 9.*) he tried and adjusted in the action of book account.</p> <p>To enable the tenant in common to recover of his cotenant in such a case, a demand must be shown. But where the claim constitutes but one of several items in the account, and the whole action does not depend upon it, a demand after the commencement of the suit, but before the time of auditing, will be sufficient.</p>

Tenants in common. Trespass upon the freehold. Plea, the general issue. The action was referred, and the referees reported the following facts. On the 9th of December, 1828, one Leonard Bennett, who then owned and occupied the premises described in the plaintiff’s declaration, conveyed said premises by deed, to Lyman Johnson, Hiram Johnson and Dyer Babbitt.

Liability of non-residents to arrest. ■ Plea in abatement. Assumpsit upon a bill of exchange drawn in December, 1853. The writ by which the suit was commenced, issued as a capias and was served by arresting the body of the defendant. The defendant plead in abatement substantially the same facts as those plead by him to the suit in favor of the Bank of Vergennes against him, (ante page 243.) To this plea the plaintiffs demurred.

<p>Tlie proceedings for setting out the homestead of a deceased housekeeper, for the benefit of his widow and children, fall within the general jurisdiction of the probate court; andan appeal lies from any order or decree of that court respecting it.</p>

Justice’s record. Mandamus. Practice. Petition eor a Mandamus. The facts and ground of the application are sufficiently stated in the opinion of the court.

<p>The defendant and one C. were jointly interested in a contract to build an arch culvert on the R. & B. railroad, and were to receive twenty per cent of their compensation in railroad stock at par. It was agreed between O. and the defendant and also between the plaintiff and defendant that the said O. should be released and the plaintiff substituted in his place, in the contract, on the same terms; and it was at the same time agreed between the plaintiff and defendant, that the latter should receive the payments, and on the completion of the work settle with the'plaintiff and pay him in cash the amount of his share Held that by this arrangement the defendant was obliged to retain the twenty per cent of railroad stock towards his own share of the profits and pay the defendant’s share in cash.</p> <p>If ah individual, without any mention of his partnership relations, is summoned as a trustee, a debt due from as a member of a firm is not thereby attached.</p> <p>Such a debt cannot be reached by amending the writ, after its entry in court, so as to describe the trustee as a member of the firm. Bennett, J.</p> <p>Whether or not a judgment shall be rendered against the trustee for Ms refusal to answer a question put to him by the plaintiff, rests in the discretion of the county court, and is not a matter for revision in the supreme court.</p>

Witness. Proof of statutes of other states'. Depositions. Award. Assumpsit, upon an award; and for the use and occupation of a house, out-buildings, and lot of land by the defendant and one Simeon Dunson, since deceased ; goods sold, money paid, &c. Plea, the general issue ; trial by jury, September Term, 1854, — Pierpoint, J., presiding.

<p> Forgery. Indictment. Evidence. </p> <p>Indictment eor eor&ery The first count in the indictment alleged “that James Morton, otherwise called Matthew Matthews, “ late of the city of Philadelphia, in the county of Philadelphia, in “ the state of Pennsylvania, on a certain paper writing purporting “ to he a bank check, which said paper writing is as follows, that is “ to say:</p> <p>“No.— •' Vergennes, June, 29th, 1854.</p> <p>“Bank of Vergennes, pay to self or bearer, twenty-nine hun- “ dred dollars.</p> <p>“ $2,900. John Gill.</p> <p>“ on the 6th day of July, in the year of our Lord, one thousand eight “ hundred and fifty four, with force and arms at Rutland afore- “ said, did wittingly, falsely, deceitfully and feloniously make, forgo “ and counterfeit; and wittingly, falsely, deceitfully and feloniously “ did cause to be falsely made, forged and counterfeited ; and wit- “ tingly, falsely, deceitfully and feloniously did aid and assist in the “ false, deceitful and felonious making, forging and counterfeiting “ an accountable receipt for money, which said false, forged and “ counterfeited accountable receipt for money, is as follows, that is “ to say: ‘ Good for twenty-nine hundred dollars. H. C. Horton, “c teller,’ with intent to defraud, 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.” And “that Samuel Bee- “ croft, otherwise called John Gill, late of the city of Philadelphia, “ Charles Saxton, late of the city of Philadelphia, and William L. “ Mentzer, late of the city of Philadelphia aforesaid, before the “ said felony was committed in manner and form as aforesaid, on “ the same 6th day of July, in the year of our Lord, one thousand “ eight hundred and fifty-four, with force and arms, at Rutland “ aforesaid, did unlawfully and feloniously counsel, aid, abet and “ procure the said James Morton, otherwise called Matthew Mat- “ thews, to do and commit the said felony in manner and form as “ aforesaid, with intent to defraud, 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>The second count was similar in form to the first, but described the check as a bill of exchange, and the endorsement or certificate of the teller as an acceptance. The third count described the check and endorsement as a “ paper writing, purporting to be an “ evidence of debt, issued by the President, Directors and Com“pany of the Bank of Vergennes.” The fifth count described the endorsement asa “ certificate and evidence of debt.” The sixth count described both the check and the endorsement as a “ writing obligatory.” The fourth count alleged that “ the said James Mor“ton, otherwise called Matthew Matthews, on the 6th day of July, “ in the year of our Lord, one thousand eight hundred and fifty-four, “ with force and arms at Rutland aforesaid, did wittingly, falsely, “ deceitfully and feloniously make, forge, and counterfeit; and wittingly, falsely and deceitfully did cause to be made, forged and “ counterfeited; and did wittingly aid and assist in the false mak- “ ing, forging and counterfeiting, a certain other paper writing, pur- “ porting to be an order for money, together with a certain false and “forged acceptance written thereon, drawn upon the President, “Directors and Company of the Bank of Yergennes, a banking “corporation duly organized and established by and under the “ authority and laws of this state; which said false, forged and “ counterfeited order and acceptance are and were as follows, that “is to say,</p> <p>“No.— Yergennes, June 29th, 1854.</p> <p>“ Bank of Yergennes, pay to self or bearer, twenty-nine hun“dred dollars.</p> <p>“ $2,900. John Gill.</p> <p>“ Endorsed: ‘ Good for twenty-nine hundred dollars, H. C. Hor- “ ‘ ton, teller.’</p> <p>“ with intent to defraud: 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.” And “ that the said Samuel Beecroft, '“ otherwise called John Gill, the said Charles Saxton, and the said “ William L. Mentzer, before the said last mentioned felony was “ committed, in manner and form aforesaid, on the same sixth day “ of July, in the year of our Lord one thousand eight hundred and “ fifty-four, at Rutland aforesaid, did unlawfully, wittingly and fel- “ oniously aid, counsel, abet and procure the said James Morton “ otherwise called Matthew Matthews to do and commit the afore- “ said felony, in manner and form aforesaid, with intent to defraud; “ 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>A nolle prosequi was entered as to Mentzer. The other respondents severally demurred. The county court, September Term, ■1854,— Piereoint, J., presiding, — overruled the demurrer, and adjudged the indictment sufficient — to which the respondents excepted, and being again arraigned, severally plead not guilty.</p> <p>On the trial, the state’s attorney offered evidence to show that a banking corporation, whose corporate name was “ The President, Directors, and Company of the Bank of Yergennes,” were, at the time of the said supposed forgery, doing business at Yergennes, in this state ; and that it was usual for them to act upon and pay checks of the form recited in the indictment.</p> <p>Said attorney also offered in evidence the paper recited in the indictment, with other evidence tending to show that H. C. Horton was the teller of said banking corporation; and that the endorsement on said paper, purporting to be signed by “ H. C. Horton, teller,” was not signed by the said Horton, who was the teller of said banking corporation. Said attorney also offered evidence tending to prove, that previous to presenting the check named in the indictment, there was an agreement between the respondents to procure the money from banks by forged paper, without reference to any particular bank, to all which offers the respondents objected, but their objections were overruled and the testimony admitted, to which the respondents also excepted.</p>

Indictment. Indictment por subornation op perjury which set forth that a certain issue was joined in a suit pending in the Rutland county court, between Jeremiah C. Powers and Artemas C. Powers, plaintiffs, and the respondent as defendant; that the respondent solicited, suborned, instigated and endeavored to persuade one Charles Lee to be and appear as a witness at the trial of said issue and falsely swear and give in evidence that at a certain time and place mentioned, he…

<p>The tenth article of the bill of rights has reference to that class of criminal offences usually denominated “high crimes,” the punishment of which affects life, liberty and reputation, and exposes the offender to infamous corporal suffering; and has no application to those minor offences which clearly concern the regulation of the internal police of the state.</p> <p>3?he legislature may constitutionally provide that the minor offences punishable by fine only, or imprisonment in the county jail for a brief limited period, and having reference to the internal police of the state, may be tried, upon informal or merely oral complaints.</p> <p>The subject matter of the law of this state, relating to the traffic in intoxicating liquor comes within the regulation of the internal police of the state which is given, by .the constitution, to the legislature.</p> <p>Validity of certain proceedings under the 22d section of the act to prevent the traffic in intoxicating liquors for the purpose of drinking, considered and affirmed.</p> <p>In a prosecution for selling intoxicating liquor contrary to law, to a plea in bar of a former conviction, it is a sufficient replication that neither of the offences, embraced in said conviction, is the offence for which the respondent is complained of in the present prosecution.</p> <p>In such a prosecution a former conviction need not be specially plead; but it may be shown in evidence under the general issue.</p>

Bill of rights. Proceedings under the act of 1852, to prevent traffic in intoxicating liquor. Habeas corpus. “Same offence.” Habeas Corpus. The writ was granted upon the application of Joseph Dougherty, in behalf of his wife Ellen Dougherty, -and was directed to the sheriff of the county of Rutland, who was also the keeper of the county jail.

Prohibition of sale of intoxicating liquor. Twelfth section of the law of 1852 to prevent traffic in intoxicating liquor for the purpose of drinldng. Trespass for breaking and entering tbe plaintiff’s dwelling house, taking and carrying away certain liquors therefrom; assault and battery and false imprisonment.

Contract. Book Account. Both actions were referred to the same auditor, who reported, in each case, substantially the same facts, which were as follows: On the 28th day of February, 1848, the plaintiff, Henry C. Gleason and one William B. Brown, then in life, but since deceased, were partners in the business of conducting a country retail store, at Cuttingsville, under the name of Brown & Gleason, and had been from before the 29th of October, 1846; and the same Brown and…

Variance. Obligations and liabilities of railroad companies. Action on the case.

Levy of execution on an undivided portion of the debtor’s real estate. Ejectment for parts of a certain piece of land in Pawlet, Plea, the general issue; trial by jury, September Term, 1854, — . Pierpoint, J., presiding.

Fraud in law. Purchase by agent without disclosure of agency. Trespass for taking a cow; plea, the general issue; trial by jury, June Term, 1854, — Pierpoint, J., presiding.

Agent. Demand and notice when the paper is not negotiable. Assumpsit against the defendant as the drawer of an order, of which the following is a copy: “Arlington, January 28, 1858. Mr. J. Surdam, — Please- pay “ David Hawkins one hundred dollars in cabinet ware, and oblige “ N. H. Barney. “ N. H. Batchelder, Agent.” It appeared that, previous to the drawing of said order, the defendant was engaged in manufacturing chairs,, and- employed N. II.

<p>A claim for money paid as usury survives against the estate of the person to tvhom it was paid.</p> <p>A claim against the estate of a deceased person, which is presented for allowance upon an appeal from the decision and report of the commissioners, is not barred on account of its not having been presented to the commissioners, if it is not shown that they appointed convenient times and places of meeting to examine and allow claims, and gave due notice thereof, as the statute prescribes.</p>

Liability of corporations for the acts of their agents within the apparent scope of their authority. Waiver.

Purchase of property by an agent without disclosing his agency. Trover for a quantity of lumber, which the defendant attached as the property of one Walter W. Fish and which was regularly disposed of upon process against said Fish. The cause was refered and the referee reported the following facts.

Practice. Contract for service of minor. Book Account. The following facts were reported by the auditor. The plaintiff, when a child four or five years of age, was given by his parents to the defendant, to bo by him well treated and taken care of until he should arrive at the age of twenty-one.

Booh account. Power of auditor. Proper charges. Bmidence. Book Account. The only items in dispute were two charges, in the defendants’ account, for cash, one for $17.39, under date of October 31, 1851, and the other for $138.00, under date of November 2, 1851, in reference to which the auditor reported the following facts. The defendants were owners of a livery stable and of sundry lines of stages, and also agents for Thompson & Co.’s Express.

Fraud. Representation respecting one’s credit. Action on the Case.

<p>5>To privifcy exists between a «creditor and the trust fund of his debtor, to which the debtor might perhaps have resorted for the same means which he procured of the -creditor, if, at the time of furnishing those means, the creditor had either actual or constructive notice of the trust, and gave credit to the trustee and not to the trust fund»</p>

Construction and performance of contract to transfer rail road stock. Wagering contract. New trial. Debt on a bond executed and delivered by the defendant to the plaintiff, the obligatory part of which was in the common form, in the penal sum of three thousand dollars, dated August 21, 1848.

Contract. Sale. Assumpsit, counting upon a promissory note given by the defendant to the plaintiff. A referee to whom the cause was referred, reported that the plaintiff was a tea merchant in the city of IVew York, and the defendant a merchant at Saxtons River Tillage, keeping teas, among other things, for a retail trade in that vicinity.

Qonstruction of vote. Book Account. The disputed items in the plaintiff’s account were charges for 574 days services at $5.00 per day. The auditor reported that the plaintiff performed the services, and that they were reasonably worth the sum charged; and he also reported the following facts.

Practice. Entry of appealed action in the county court. Audita Querela to set aside the affirmance, in the county court, of a judgment -which the defendant obtained against the complainants, before a justice of the peace, from which the complainants took an appeal, It appeared that after the appeal, the complainants employed E. Kirkland, Esq., to take charge of, and enter the appeal in the county court, who, on going to court, made arrangements to have the copies of the…

Scire facias. Original jurisdiction of the supreme court. Recognizances, where of record. Scire facias upon a recognizance.

Insufficiency of highways. Liability of towns. Want of ordinary care.. Dedication. Action on the case to recover for damages occasioned by tbe insufficiency and want of repair of a highway and bridge which it was the duty of the defendants to keep in repair, and by the neglect, by the defendants, of that duty.

[IN CHANCERY.] Interference of chancery in proceedings respecting highways.

Construction of deed. Use of the word heirs in deeds. Heir taking by purchase. Petition for partition of tlie real estate which was conveyed by Benjamin Burt to Leonard Burt, by his deed, dated November 25, 1830.

[IN CHANCERY.] Preference of partnership creditors. Appropriation of payments. Appeal from the court of chancery. It appeared from the hill, answer and evidence that the orators were creditors of the firm of Hammond & Draper, formerly iron founders, consisting of the defendants, Lycurgus C. Hammond and Francis Draper.

Promise to cashier or agent. Variance. Assumpsit upon a guaranty.

Contract. Waiver. Book account. The disputed items in the plaintiff’s account, were charges for labor upon a dwelling house of the defendants, performed by the plaintiff, in the years 1847 and 1848, in reference to which the auditor reported the following facts.

Trespass upon the freehold. Jurisdiction. Trespass upon the freehold.

[IN CHANCERY.] Payment of mortgage treated as a purchase. Levying creditor a proper party to a bill of foreclosure. Bill to foreclose the defendant’s equity of redemption in certain premises in Stockbridge, mortgaged by Calvin W. Greenleaf to the Mutual Manufacturing Company, on the 16th of January, 1846, to secure the payment of four promissory notes, of that date, of $100.00 each, payable on the first days of April, of the years 1846-7-8 and 9.

Evidence. Partnership. Statute of limitations. Assumpsit upon a promissory note. The writ, which was dated December 7th, 1851, and served February 17th, 1852, described the defendants as partners under the name of “ The Ludlow Woolen Mill.” Plea the general issue, and the statute of limitations; trial by the court, December Term, 1853, — Collamer, J., presiding. The plaintiffs presented a note of which the following is a copy. $385.78. Ludlow, March 12, 1845.

<p> Appraisal of land damages by railroad commissioners. Action. </p> <p>Action on the case. The plaintiff declared that he was possessed of a certain piece of land, in Windsor, upon and across which the defendants surveyed and located then- railroad; that commissioners were duly appointed, and met to determine the plaintiff’s damages, and when met for that purpose, the defendants, by then- agents and engineers, represented to the commissioners and gave them to understand, that said railroad was to be constructed so as to cross the plaintiff’s premises upon a five feet fill or embankment, that the highway adjoining said premises was to he filled up and raised so as to pass over and on a level with the said railroad; that upon said representations and understanding, and with reference to the same, and not otherwise, the said commissioners did determine the said damages at the sum of one hundred and sixty dollars, from which determination of said commissioners the plaintiff did not appeal; that after the lapse of the time allowed for the plaintiff to appeal, the defendants, not regarding or fulfilling the representations or understanding so made and given to said commissioners, did not so construct said railroad across the plaintiff’s premises; but on the contrary, instead of a five feet fill or embankment, said railroad was constructed upon a ten feet fill or embankment; and instead of constructing said railroad and filling up and raising the road or highway so that the same should pass over and on a level with said railroad, the defendants so constructed said railroad and dug out and excavated the said highway, that the same passes under said railroad, and extended said excavation along in front of, and past the dwelling house and premises of the plaintiff, so as to render it exceedingly inconvenient and difficult, with carriages, teams or on foot to pass to and from the plaintiff’s premises, to the highway aforesaid; that, by reason of the alteration in constructing the fill or embankment of said railroad, and in digging out and excavating the highway, as aforesaid, he had sustained much greater damage than was awarded him by said commissioners, to wit., in the sum of five hundred dollars; that, after the making of said alteration, the defendants, having neglected to cause said commissioners to examine said premises, and re-appraise the damages so caused to the plaintiff by said alteration, the plaintiff himself applied to said commissioners to assess said damages, but said commissioners declined to assess the same, and had never done it, — nor had the defendants ever paid to, or satisfied the plaintiff for the damages sustained by him, as aforesaid.</p> <p>Plea, the general issue; trial by jury, December Term, 1853,— Collamer, J., presiding.</p> <p>On the trial, the plaintiff gave evidence tending to prove the allegations in his declaration; but no evidence was given, nor was it claimed by the plaintiff, that the defendants were guilty of any fraud, or acted in bad faith. The defendants insisted, and requested the court to charge the jury, that if they found all the allegations of the declaration proved, the plaintiff could not recover. But the court refused so to charge, and instructed the jury that if they found the allegations in the plaintiff’s declaration true, they should find a verdict for him for such damages as they should think he was entitled to, according to the terms of the declaration. The jury returned a verdict for the plaintiff. After verdict, the defendants filed a motion in arrest, which was overruled, to which, and to the refusal of the court to charge as requested, the defendants excepted.</p>

<p>An act lawful and right in and„of itself is not actionable on account of its being performed] from an^improper or bad motive. ^</p> <p>The plaintiffs, a banldng corporation, declared that the defendants maliciously, corruptly and wickedly intending to injure, break down and destroy the plaintiffs, and bring their bills into discredit and prevent their circulation, had bought up, taken and kept out of circulation a large amount of their bills and’ notes, and refused to exchange them for other funds, but demanded and compelled the plaintiffs to pay tho specie upon them, whereby the plaintiffs were injured, and deprived of great profits, &c. Held, on demurerr to the declaration, that it did not disclose any legal cause of action.</p> <p>An action for a vexatious suit cannot be sustained upon proof of malice alone; a want of probable cause must also be shown. Benxf/et, .T.</p>

<p> Presentment of note or bill for payment. Averment thereof in declaration against the maker or acceptor. </p> <p>Assumpsit. The declaration counted on an acceptance by the defendant, at Woodstock, Vt., of a bill of exchange, dated April 13th, 1853, drawn by one Daniel Tarbell, Jr., at the city of New York, payable, six months from date at the Metropolitan Bank, in said city of New York, to the order of the said Tarbell, and by him endorsed to the plaintiffs; and contained an averment, that on the 15th of October, 1853, the plaintiffs presented the same for payment at the said Metropolitan Bank, but that payment was refused, &c. Plea, the general issue; trial by jury, May Term, 1854, — Pierpoint, J., presiding.</p> <p>The plaintiffs gave in evidence the bill declared upon, and proved the defendant’s signature to the acceptance; that the bill was regularly negotiated to them, and that they were the legal holders thereof.</p> <p>To prove presentment' of the bill for payment, at the place named in said bill, the plaintiffs offered in evidence the notarial certificate attached to said bill. To the admission of this instrument for the purpose named, the 'defendant objected. But the court admitted the same, and also decided that it was not necessary for the plaintiffs to prove such presentment; to both which decisions the defendant excepted.</p>

<p> Construction of auditor’s report. Evidence. Partnership. </p> <p>Account. The plaintiff claimed to recover of the defendant, $841.15, being two-thirds of the sum of $1261.72, paid to Solomon Downer, as the balance due him on a note, signed by the plaintiff, the defendant, and one Edward H. Spaulding, who was joined as a defendant, in the plaintiff’s writ; and in reference to this claim, the auditor reported the following facts.</p> <p>The parties named in the declaration, were partners, from March 17th, 1849, to November 10th, 1849, under the firm of D. Tarbell & Co. No service of the process was made upon the said Spaulding, he being out of the jurisdiction of the court, and it was understood that his interest in the partnership matters had been assigned to the defendant, who represented two-thirds of the concern, and the plaintiff represented the other third.</p> <p>The payment made to Solomon Downer, two-thirds of which the plaintiff claimed of the defendant, was to take up a note for $1500, given on the 2d day of June, 1849, to said Downer, and signed by Rufus Kendrick, Daniel Tarbell, jr., and Edward H. Spaulding. The note was given for money, which was shown to have gone into the concern of D. Tarbell & Co., and used in their business; and it was not shown that that concern was insolvent.</p> <p>The controversy between the parties, in relation to the note, was, whether it was given by the plaintiff, as principal, and the said Tarbell and Spaulding, as sureties, (as between themselves,) or whether it was given for the joint debt of all the signers, and was, as between themselves, a partnership concern.</p> <p>The plaintiff proved that, after the signers had negotiated with Downer, for the loan of the said fifteen hundred dollars, a note for that sum, signed “ D. Tarbell & Co.,” was taken, by Tarbell, to Downer, who refused to take the note so signed, by the name of the firm, but required a note signed with the individual names of the partners, and such a note was substituted for the first. The note so signed, by the individuals, is the note on which the plaintiff paid, on the 25th day of May, 1853, $1261.72, — and this appeared by the endorsement on the note, as well as by the testimony in the . case.</p> <p>The plaintiff offered, in evidence, a bond of submission between the parties, and an award of arbitrators, to show that he had made a previous payment, of $567.10, on said note, two-thirds of which was awarded to him against the defendant. He also offered an award, to show that matters of account, arising and subsisting between the parties, relating to said partnership, prior to said award, had been adjusted by said award. To the admission of said bond and awards, the defendant objepted, The objection was overruled, and they were received in evidence.</p> <p>The auditor found that said note of $1500, to Solomon Downer, was the note of the partnership, and that the plaintiff had a right to recover, of the defendant, two-thirds of the amount paid by him, on said note.</p> <p>The county court, May Term, 1854, — Colla-mer, J., pre-sidding, — accepted the report, and rendered judgment 1hereo^l for the plaintiff.</p>

Party to contract. Book Account. The principal item in dispute between the paifies was a charge in the plaintiff’s account against the defendant for “horse boot,, $50,” which the defendant objected to as being a claim in favor of' the plaintiff and one Gilman Henry, jointly, and not in favor of the plaintiff alone; and in reference thereto-the auditor reported the following facts.

<p>A court of chancery will not interfere, to stay proceedings in an action of ejectment, brought by a mortgagee or his assignee, to obtain possession of the mortgaged premises, upon a bill brought by the mortgagor, or his assignee, not for the purpose of discovery, and in which the orator claims and insists that there has been no breach of the condition.</p> <p>In such a case the orator has a plain and adequate remedy at law; anda court of law having obtained jurisdiction of the matter, it cannot be withdrawn therefrom and adjust- ' ed in a court of equity.</p>

<p>Act of 1852 to prevent traffic in intoxicating liquors.</p> <p>Information in forty-two counts for illegally selling and furnishing intoxicating liquors, at different times, between the 1st of January and the 16th of June, 1854. The information was filed at the May Term, 1854 Neither count in it charged the respondent, in terms, with having given away intoxicating liquors. Plea, not guilty; trial by jury, December Term, 1854, — Underwood, J., presiding.</p> <p>The testimony on the part of the prosecution, tended to prove that the respondent had, on several occasions, during the period covered by the information, illegally sold, and at other times given away, intoxicating liquors, at his grocery. The respondent’s counsel requested the court to instruct the jury that they should not find the respondent guilty of any offence for giving away, as there was no count for that offence in the information, — that evidence of giving away would not support a count for selling or furnishing. The court declined so to instruct the jury, but did instruct them, that evidence of selling or giving away would support a count for furnishing, and directed the jury to return their verdict of guilty, against the respondent, for as many offences as they were satisfied, from the proof, the respondent had been guilty of acts of selling, furnishing or giving away intoxicating liquors. To these instructions, the respondent excepted; the exceptions were allowed, and the sentence respited.</p> <p>This case was tried, by the consent of the government and the respondent, at the same time, and before the same jury, with an indictment found by the grand jury, for similar offences, committed subsequent to the filing of the information. The jury returned a verdict of guilty of thirty offences, said verdict being taken prior to, and distinct from the taking of the verdict on said indictment.</p> <p>Other questions, similar to those raised respecting the indictment, and the trial under it, were raised and decided in the same way, in reference to which, see post p. 528.</p>

<p>Act of 1852 to prevent traffic in intoxicating liquors.</p> <p>Indictment for offences against the act of 1852, to prevent traffic in intoxicating liquor for the purpose of drinking. The indictment was found at the December Term, 1854, and contained one hundred and fifteen counts, all of which were substantially in the form prescribed for complaints in the eighteenth section of said act, (Laws of 1852, p. 26.) alleging the offences in the several counts at different times between the 25th of June and the 21st of December, 1854. Seventy-eight of the counts were for illegally selling intoxicating liquor, twenty for furnishing, sixteen for giving away, and one for selling and furnishing. Plea, not guilty ; trial by jury, December Term, 1854, — Underwood, J., presiding.</p> <p>The evidence on the part of the prosecution tended to show that the respondent had been guilty of several acts of selling, and of giving away intoxicating liquors, without license, contrary to law, within the period embraced in said indictment. (The respondent by his consent, and by the consent of the state’s attorney, was tried at the same time and before the same jury, on an information for similar offences filed at a former term,) (ante p. 520.) The respondent’s counsel requested the court to instruct the jury that the respondent was liable for no more acts of giving away than there were counts for giving away in the indictment; that proof of giving away would not support a count for selling or furnishing. The court declined so to instruct the jury, hut instructed them that evidence of selling or giving away would support a count for furnishing ; and directed them to return a verdict of guilty against the respondent for as many breaches of law, as they found acts of selling or giving away, irrespective of the number of counts for giving away in the indictment. There was no evidence of furnishing unless selling or giving away was furnishing within the meaning of the'act. To the instructions of the court the respondent excepted. The jury returned a verdict of guilty of seventy-six offences, which verdict was rendered after, and distinct from, the verdict on said information. After verdict, the state’s attorney offered to prove, by the records, two former convictions of this respondent for breach of the same law, one of which was upon said information, and moved for sentence upon the respondent for such penalties as the statute provides for the third conviction. These records were objected to by the respondent, but were admitted by the court, to which the respondent also excepted. The exceptions were allowed and the sentence respited.</p>

<p> Lease. Covenant for good husbandry, maintaining buildings, fyc. </p> <p>Covenant. On the 23d day of February, 1852, the plaintiff, by an indenture, duly executed by both parties, leased to the defendant, his heirs and assigns, a farm, containing about one hundred and eighty acres, from the first day of April, A. D. 1852, so long as the defendant should well and truly pay to the plaintiff the rents, and do and perform all the agreements mentioned in the indenture. The defendant, by said indenture, agreed “to build “ thirty rods of good wall, where it is most needed on said land, “ within one year from date, and after that, thirty rods, each and “ every year, so long as there is wall wanted on said land, and to “pay fifty-one dollars in one year_from the first day of April, “A. D. 1852, and after that, to pay for each'and every year, the “ same sum, and also to pay all the rates or taxes or duties which “ shall arise on said farm, and also to carry on said farm in a good “ husband-like way and manner, and never to cut off the wood so as “ to injure said farm, nor carry off the hay, straw, stone or manure, “ so as to injure said farm, — and also to maintain the buildings, “and everything thereto belonging, at the expense of the said “ Pike; and, on failure, to make good all damages to said Simeon “ Buck,” &c.</p> <p>The declaration counted upon and alleged a nonperformance, by the defendant, of each of the above mentioned agreements in the lease, up to the 1st of April, 1853, shortly after which the suit was commenced. Plea, the general issue, and a special plea, averring a performance of all of said agreements, upon which issue was' joined to the country; — trial by jury, December Term, 1854,— Underwood, J., presiding.</p> <p>The testimony tended to prove that, the defendant took, and still retained, possession of the premises, under the indenture, and that he did not, either on or before the 1st of April, 1853, pay any part of the annual rent, or build any of the stone wall, or make any repairs on the buildings, which were very much out of repair, and remained so at the time of the trial, — and that since the commencement of the suit, the plaintiff had incurred an expense of fourteen dollars, in causing necessary repairs to be made to the buildings.</p> <p>The evidence also tended to prove that, the defendant, since the commencement of the suit, had paid to the plaintiff’s attorney, fifty-one dollars, for the first year’s rent, and the cost of the writ and service, and that the defendant had, also, since the commencement of the suit, and principally duiing the year 1854, erected, upon the premises, eighty rods of stone wall, where most needed. The testimony also tended to prove that the defendant did not, during the first year, manage and carry on the premises in a good husband-like manner, and that he suffered the fences to decay and become prostrate, — and that the damage to the premises, by reason of the defendant’s neglect to maintain the buildings, the first year, and to erect and keep up suitable fences, and failure of good husbandry in other respects, was fifty dollars.</p> <p>There w'as no testimony in the case, except that which was given by the plaintiff’s witnesses.</p> <p>The county court directed the jury to return a verdict for the plaintiff, for nominal damages only, and his costs.</p> <p>The defendant’s covenant, to maintain the buildings, &c., required him to keep them, at all times, in repair; Monk v. Noyes, 1 C. & P. 265; (11 C. L. R. 386.) This covenant has been violated, and the plaintiff has sustained actual damages, which should have been assessed by the jury, Smith v. Peat, 24 L. & E. R., 471. Defendant’s failure to repair diminished the plaintiff’s security, and the value of his reversion, to the extent of the amount which the repairs would cost, and that sum should have been the measure of damages, Shortridge v. Lamplugh, 2 Ld. Raym., 798 ; Vivian v. Campion, Salk. 141.</p> <p>The plaintiff’s right to recover that amount, is not affected by the commencement of his suit previous to the expiration of the term, and without a re-entry. Luxmore v. Robson, 1 B. & Aid. 584. Sehieffelin v. Carpenter, 15 Wend. 400 ;■ Platt on Covenants, 288 ; Sedgw. on Dam. 388.</p>

<p>Replevin is maintainable, in this state, only as provided by statute.</p> <p>A justice of the peace has u o jurisdiction in a replevin suit, which is foot brought to recover a beast distrained or impounded, even though the value of the property, for which it is brought, is less than seven dollars.</p> <p>A judgment rendered by a justice in favor of a plaintiff in an action of replevin, which was not brought to recover a beast distrained or impounded, and upon which the defendant is liable to, and threatened with an execution, will be set aside on audita querela.</p>

<p> Trespass on the case. Trustee process. Practice. </p> <p>Trespass on the case for maliciously praying out a writ of attachment with an ad damnum of twelve thousand dollars, a command to attach and an actual attachment of the plaintiff’s property to that amount, for the purpose of securing and collecting a note for only about two thousand dollars, with an intent to break up the plaintiff’s business, destroy his credit, &c. By the plaintiff’s writ which was served on the 3d of January, 1853, and made returnable at the May Term, following, certain persons were summoned as the trustees of the defendant. At the May Term, 1854, the persons summoned as trustees were discharged on motion of the defendant. At the December Term, 1854, — Underwood, J., presiding, — the defendant moved to dismiss the suit on account of its having been commenced by the trustee process. The court sustained the motion, and dismissed the suit, to which the plaintiff excepted.</p> <p>insisted that the motion was too late, &c.</p> <p>cited Hill v. Whitney ei al., 16 Yt. 461. Austin v. Grout, 2 Yt. 489. Boardman v. Bickford, 2 Aik. 345, Stanly v. Ogden, 2 Root 259. Bradley v. Tr. of Cooper 6 Yt. 121. Ferris v. Ferris § Tr., 25 Vt. 100.</p>

Indemnifying contract. Debt on a bond given by the defendant to the plaintiffs, in the ■penal sum of one thousand dollars, dated October 30, 1847.

Guaranty, construction and extent of notice of its acceptance, §c. Assumpsit. The declaration counted, with proper averments, upon a written guaranty, of which the following is a copy. “ Me. Johnson, Sie. “ I wish you to discount a note dated Royalton, April 3, 1847, “ for the sum of four hundred dollars, signed by John II.

Highway districts and surveyors. Powers of the selectmen respecting them. Book Account. From the auditor’s report, it appeared that the account of the plaintiff was for services performed and expenditures made by him, under an appointment, as a surveyor of highways for a new highway district, which the selectmen of Windsor made, soon after the annual town meeting for that town, in March, 1852.

Contract. Assumpsit. The declaration contained only the general counts for money paid, work and labor, &c. Plea, the general issue, and trial by the court, May Term, 1854, — Collamer, J., presiding. On trial, the following facts appeared.

Grand jurors complaint. Prosecution for violations of the act of 1850 regulating the traffic in intoxicating drinlcs (Oomp. Stat. Oh. 87, p. 504.; Prosecution for a violation of the law of 1850, (Comp. Stat. Ch. 87, p. 504) regulating the traffic in intoxicating drinks.

Removal of an executor by the probate or county court. Practice. .Appeal from the decree of the probate court. From the pleadings in the county court which terminated in a demurrer, it appeared that the appellant was.duly appointed and qualified as the executor of the last will and testament of his brother, Samuel X).

Petition for partition- Recognizance. Petition eor partition of a piece of land owned, as alleged in the petition, by the plaintiff and defendant, as tenants in common. No security, by way of recognizance, was given to the defendant, that the petitioner would prosecute his writ or petition to effect, &c., and for this cause the defendant moved to dismiss.

<p>'Tools borrowed for temporary use, and not returned, which have not been damaged, or demanded and refused, cannot be charged, and recovered for in an action on book account.</p> <p>The expense of repairing an article broken by the opposite party, is not a proper charge on book against him, if he never authorised or assented to it.</p> <p>Bebts due to a debtor which accrued from the sale of property which was exempt from •attachment, may be attached and holden by the trustee process.</p>

Wife’s incapacity to contract. Heirs to her personal estate. Appeal from the decision and. report of the commissioners upon the estate of Caty Burnham, allowing a claim of $218.56, in favor of the appellee, against said estate. The appeal was taken by Ambrose H. Thayer and Hannah Waterman, who described themselves as children and heirs at law of the said Caty Burnham.

Promissory note recoverable under the money counts. Practice. Statute of limitations. Book account in which a balance was reported and recovered in favor of the plaintiff.

Declaration on promissory note. Assumpsit. The declaration was as follows. “ In a plea of the case for that the defendant, at Royalton, in “ the county of Windsor, on the 15th day of June, A. D. 1854, “ by his promissory note of that date, under his hand, for value “ received, promised to pay Luther Perigo or bearer two hundred “ and fifty dollars with interest.

<p> Replevin. </p> <p>Replevin. The writ was drawn in accordance with a form for a writ of replevin (Form 39,) on page 623 of the Compiled Statutes. The condition of the bond, taken by the officer, upon the service of the writ, was in accordance with the form (Form 41) on page 624 of the Compiled Statutes. The writ was made returnable at the January Term, 1855, at which term, the defendant moved that it be dismissed on account of the insufficiency of said bond. The county court, — Underwood, J., presiding,— sustained the motion, and dismissed the writ, to which the plaintiff excepted.</p>

Recognizance for revievj. Debt. The first count in the declaration alleged the recovery by the plaintiff, at the June Term, 1852, of the Orange county court, of a judgment in his favor against Daniel Taibell, Jr., Azro D. Hutchins and Isaac P. Morgan, “ for the sum of-dollars damages, and for the sum of-- dollars costs;” the review of that judgment by the said Tarbell, Hutchins and Morgan; that the defendant became recognized for said review, &c. The further proceedings in…

Embezzlement. This was an action brought by the plaintiff as admimistrator upon the estate of Zachariah R. Cilley, against the defendant, in pursuance of section 11 of chapter 50 of the Compiled Statutes, which provides that “ if any person, before granting letters testaí* mentary or of administration on the estate of a deceased person, “ shall embezzle or alienate any of the goods chattels or effects of “ such deceased person, such person shall stand chargeable and be…

Jurisdiction of prolate court. Husland and wife; wife’s closes in action. Assumpsit.

Evidence. Attachment. Effect of discharge of execution upon suit for not leeeping property attached, to he levied on. The nature of the action, and the questions presented and decided, ■sufficiently appear in the opinion of the court, which is the only paper, in the case, in the possession of the reporter; the others having been either mislaid or lost.

Belief at law. Parties to a writ of audita querela. Audita Querela.

Pauper. Appeal from an order of removal of Lydia Gould from the town of Chelsea to the town of Brookfield.

<p>Where, in an action at law, the county court find that the defendant has the interest of a mortgagor in certain premises, the legal title of which is in the plaintiff, and the bill of exceptions does not detail all the evidence or state all the facts in the case, that finding cannot be revised by the supreme court.</p> <p>The defendant, having the interest of a mortgagor in certain premises, which was evidenced by a written contract between him and the person who had the legal title, assigned his contract and interest in the premises, with a provision that the assignment should be void upon the failure of the assignee to perform certain conditions,* the assignee did fail to perform, and abandoned the possession of the premises, which the defendant retook, without auy reconveyance of them to him; thereupon the mortgagee executed to the defendant another and similar contract, and afterwards conveyed the premises to the plaintiff, who had knowledge of the defendant’s interest: Held that the defendant held the same interest under the second as under the original contract, and that the plaintiff could not set up any possible interest in said assignees to defeat it.</p> <p>If a person had an equitable interest in a piece of land, and a contract for a deed of it upon the payment of a given sum by a certain time, which has expired; an acceptance of the interest accruing upon that sum after that time, will be an acknowledgment of his equity as still subsisting and a renewal of the contract for a deed.</p> <p>If a mortgagor or purchaser agree to pay a certain sum as rent, that will not constitute him a lessee, if that sum is really only the interest on the debt or purchase money.</p> <p>Neither section, 15, 23 or 30 of Chap. 4á of the Compiled Statutes respecting forcible entry and detainer has any application to the case of an equitable mortgagor or purchaser in possession. They apply only to technical lessees whose terms have expired, and whose • entire right, both legal and equitable, has ceased.</p>

Practice. Exceptions in criminal prosecutions. The respondents were indicted for larceny, and for receiving stolen goods, knowing them to have been stolen, and were put upon trial in the county court, upon their pleas of not guilty, at the January Term, 1855, — Underwood, J., presiding.

Contract, whether joint or several^ Variance. Assumpsit. The declaration contained the general indebitatus assumpsit counts, and a special count, as follows. “ For that, the defendants, on the 1st day of February, A. D. “ 1853, at Corinth aforesaid, in consideration that the plaintiff did “then and there undertake and promise to become bail for one “ Moses Thurston, then imprisoned, in the common jail in Chelsea, “ in said county of Orange, by due process of law, then and…

<p>If the commissioners, appointed upon a petition for a highway, report adverse to the petition, upon the general ground that the public good does not require the highway petitioned for, their report should be regarded as final, and the petition be dismissed, unless there was some improper practice upon or by them, amounting to fraud or gross partiality.</p> <p>The provision in § 40 of ch. 22 of the Comp. Stat., that the court may reject or accept the report, in whole or in part, &c., was intended to apply exclusively to cases where the committee report in favor of the petition.</p>

Liability of plank, road companies for the want of repair of their roads. Action on the case to recover for injuries occasioned by the insufficiency and want of repair of the defendants’ plank road in the town of Stowe. Plea, the general issue, trial by-1854, —Peck, J., presiding.

Construction of the third section of the act annexing Mansfield to Stowe. Debt on a bond dated the 29th of March, 1848, executed by the defendants to the late town of Mansfield. The object and conditions of the bond are sufficiently set forth in the opinion of the court. Their decision having reference only to the right of the plaintiffs to maintain any action on the bond declared on, a statement of the particular averments in the declaration is unnecessary.

Vendue sale. Matters concluded h/ the allowance of the account of the committee. Trespass on the ereehold. The plaintiff claimed title in his testatrix to the premises, upon which the trespass was alleged to have been committed, under a vendue deed from Theophilus W. Fitch, the collector of a five cent land tax, on the lands in Hyde-park, granted by the legislature in 1839.

Sufficiency and construction of a plea of payment and satisfaction. Writ of Reyiew.

Action on receipt maintainable in name of deputy sheriff. Trover for certain property attached by the defendant, as a deputy sheriff, upon a writ of attachment against the defendant Thompson for which both defendants gave their receipt. The attachment, receipt and a demand and refusal to redeliver were proved in the county court.

Liability of owner of property. General authority of a clerk. Book account. The plaintiff contracted to build, and did build, for the defendant, a log house, for which he charged, and was allowed by the auditor, the price specified in the contract. He further charged the defendant, “ for finishing off a room up-stairs, $15.00,” in reference to which the auditor reported the following facts.

Gontinuance of justice suit for notice to an absent defendant. Release by one of two plaintiffs. Interest of trustee in the judgment between the principal parties. ■ Audita Querela.

<p>An indictment for selling an obscene book or printed paper should ordinarily set forth the book oc paper in haec verba as in indictments for libel or forgery; but this may be dispensed with, and the obscene character of the publication be described in more general terms, if it be of so gross a character that spreadingit upon the record would be an offence against decency.</p>

Authentication and sufficiency of record. Ejectment. The plaintiff claimed title to the premises, by virtue of the levy of an execution issued upon a judgment recovered in his favor against the defendant, in the county court, for the county of Orange.

Right of possession. Trespass. Trespass for a quantity of merchandise, which the defendants had attached as the property of one S. S. Kimball. Plea, the general issue, with notice of the attachment, &c. Trial by jury, June Term, 1854, — Peck, J. presiding.

Liability of a son for the services of his father who is living with and supported by him. Trustee Process.

Construction of auditor’s report. Implied promise. Book Account.

Construction of proviso to witness act of 1858. Statute of limitatations. Report of referees- Appeal proji Commissioners. The defendant’s intestate died in March, 1852; the claims of the plaintiff against his estate were presented to the commissioners previous to November, 1852. An appeal was taken from their decision and report, and entered in the county court at the December Term, 1852, and, at that term, referred by the agreement of the parties.

General assumpsit. Offset. Assumpsit. The declaration contained.only the general counts, to which the defendant plead the general issue, and a plea in offset, containing also the general counts. Trial by the court, May Term, 1858, — Poland, J., presiding. In reference to the plaintiff’s claim, the court found the following facts.

Action by administrator. Ejectment for certain lands in Brunswick. Plea, the general issue; trial by jury, January Term, 1854, Poland, J., presiding.

[IN CHANCERY.] Bill of Review. Appeal from a decree of the court of chancery, dismissing a bill of review, brought by the present orator, for an alteration in a decree of the court of chancery, made upon a bill instituted in favor of the present defendant against the complainant.

Return of execution levied upon real estate. Ejectment. Ejectment for lot No. 76, in the 3d division of lands in Canaan. Plea, the general issue; trial by jury, January Term, 1855, — Poland, J., presiding.

Negligence. Action on the case. The plaintiff in his declaration averred that, by reason of the neglect of the defendants to erect and keep in repair a sufficient fence by the sides of their railroad, through the ¡olaintiff’s laud, two of the plaintiff’s oxen, which were permitted to stray on said railroad, were struck by the defendant’s engine and killed. Plea, the general issue. The case was submitted on the following statement of facts agreed upon by the parties.

Contract for service for an entire term. Book Account. On the hearing before the auditor, the following facts appeared. The plaintiff contracted to work for the defendant six months at $12-| per month, and did work for him four months and five days, when he received an injury in his back, which rendered him incapable of labor for a about one week.

Ratification of contract for service, by a minor, for an entire period. Sufficient excuse for a breach of such contract. Book Account. The plaintiff contracted to labor for the defendant for a year from the 7th of April, 1852, for $13, per month, and did labor for him until the 3d of August, following, when he left under the circumstances hereafter mentioned.

Duties and liabilities of listers. Rights of. school districts against them.

<p>The defendant employed the plaintiff at a price per day agreed upon to labor upon a house he was building eleven miles from the-plaintiff ’s residence, to which the plaintiff would frequently return and spend his nighis and not reach the defendant’s house until after the usual time of commencing work upon the mornings following. The plaintiff informed the defendant soon after commencing work that he charged for full time, to which the defendant made no objection at the time or until after the completion of the work, when he claimed a deduction for the time spent by the plaintiff in travelling. Held, that his making no objection at the time of being informed and suffering the plaintiff to continue his work in the expectation of being paid for full time, should be regarded as an acquiescence in, and assent to the plaintiff’s claim.</p> <p>Upon the completion of his work, the plaintiff received the balance offered him by the defendant, who deducted for the time spent in travelling to and from his residence, the plaintiff saying that it was not enough, but that there would be no trouble about it. Held that this did not amount to an acceptance of the sum offered in full satisfaction of his claim.</p>

<p>The defendant and one W. jointly purchased a lot of land under an agreement by which the defendant was to have the land and W. the cedar timber upon it. The lot adjoined one owned by the plaintiffs, and there was a controversy respecting the true division line between them, of which controversy the defendant had knowledge, and he supposed and claimed that the judgment in an action of trespass in favor of a former proprietor of the lot purchased by them had determined the question of title in his favor, andhe so informed W., who went oh and cut the timber on the land between the two lines, whieh was ultimately decided to belong to the plaintiffs. The defendant took no part and did not advise or assist the cutting of timber, except that he let one of his hired men assist W. for whose services he charged him. Held that there was not such a participation, by the defendant, in the taking of the timber as to render him liable to the plaintiffs therefor.</p>

Arbitration. Award to be coextensive with submission. Assumpsit on an award. Plea, the general issue; trial by jury, December Term, 1854. — Poland, J., presiding.

Promissory notes, Assumpsit upon a promissory note payable, two years from date, to Amos Beckwith or bearer. Plea, the general issue; trial by jury, December Term, 1854, — Poland, J. presiding. The plaintiff produced the note, and proved its execution.

Booh Account. Partnership. Offset. Book Account. The plaintiffs’ account, which was for work done by them as painters and glaziers, was allowed, by the auditor at $106.41.

Principal and swrety. Assumpsit. The declaration contained the general money-counts, under which the plaintiff claimed to recover for money paid upon a jail bond, on which he was surety for the defendants, and for money paid for counsel fees in defending a suit on said jail bond. Plea, the general issue; trial by the court, September Term, 1853, — Poland, J., presiding.

Diversion of water course. Action on the case for a disturbance of a water course.

[IN CHANCERY.] Provision in contract for railroad construction, that the engineer’s estimate shall he conclusive. Held: that “ where the inability of the plaintiff in “ equity to obtain adequate relief at law, has arisen from the acts “ of the defendant or his agent, whether such acts arose originally “ from a fraudulent motive or not, this court will not permit such “ acts to defeat the rights of the plaintiff.” 2.

[IN CHANCERY.] Railroad construction contract; estimates of engineer. Interference of chancery. Practice. Appeal from the court of chancery. *The orators in the present case had a contract with Sewall F. Belknap for the construction of one or more sections of the railroad of the Vermont Central Bail-road Company, for the construction of whose entire road said Belknap, had contracted.

Legal title to lands reserved for public uses. Division of the town of Montpelier. Assumpsit.

Pent roads, liability of towns for their insufficiency. Action on ti-ie case, to recover damages for an injury to a colt, sustained by reason of the want of repairs on a pent road. Plea, the general issue; trial by jury, September Term, 1853 —Poland, J., presiding.

Action for services of a child or other member, of the family. Book account. The plaintiffs’ principal claim was for the services of Caroline M. Davis, wife of Leander Davis, before her marriage, in reference to which the auditor reported the following facts.

Declaration on promissory note. Asstoipsit. By the writ and declaration the defendants were notified to appear, &c., “ then and there, in said court, to answer to “ the Bank of Montpelier, at Montpelier, in the county of Washington, in a plea of the case for that the defendants, by their “ promissory note, dated at Richmond, May 12th, 1853, for value “ received, jointly and severally promised the President, Directors “ and Company of the Bank of Montpelier, to pay them the…

Declaration. Action on the case. After a trial by jury which resulted in a verdict for the plaintiff, in the course of which exceptions were taken, which do not appear to have been relied upon in the supreme court, the defendant filed a motion in arrest, on account of the insufficiency of the declaration. The county court, March Term, 1854, — Poland, J., presiding, — overruled the motion in arrest to which the defendant also excepted.

Indictment for obstructing railroad engines. Indictment charging that the respondent “ on the 17th day of « August, A. D. 1853, with force and arms, at Middlesex aforesaid, “willfully did obstruct, hinder, impede and stop the machines, “ engines, and cars, of the Vermont Central Railroad Company, “ running over the track of the said company through the town of «Middlesex aforesaid, by placing logs upon and over, and across “ said track, contrary to the form, force and effect…

<p> Evidence. New trial. Surprise. </p> <p>Indictment for forgery. The instruments alleged to be forged were two receipts purporting to be signed by Philinda French, one for thirty-five dollars “ to apply on note ” and the other for five dollars “ in full payment on note dated some time in the month of April, 1849, given for the sum of thirty-nine dollars.” Upon the trial of the respondent at the March Term, 1854,— Poland, J., presiding, — it was proved that the receipts described in the indictment were used upon the trial of a suit brought for the collection of the note referred to. Direct evidence was introduced tending to prove that said receipts were false and forged, and also, for the purpose of showing that said receipts were false and forged, the government offered in evidence a deposition purporting to have been made by one John T. Richardson, together with evidence tending to show that there was no such man as John T. Richardson, but that the respondent, on the 3d day of July, A. D. 1852, appeared before one James Dinsmoor, Esq., a justice of the peace, at Lowell, in the county of Middlesex and state of Massachusetts, in the assumed name of John T. Richardson, and made and sigued and swore to said deposition ; and that said deposition was used on the trial of an action on the note. To the admission of this evidence the respondent objected, but the county court overruled the objection and admitted the evidence; to which decision the respondent excepted. Evidence was also given on the part of the state’tending to show that the statements contained in said desposition were false.</p> <p>The purport of the deposition was that the deponent was present at the time the five dollar receipt was given, &c.</p> <p>The respondent also petitioned for a new trial, representing that he had no knowledge or belief that any attempt would be made, on the part of the government, to show that the deposition of one John T. Richardson was made and signed by the petitioner in the name of said Richardson, until the evening before the said trial was to be had, when he learned that James Dinsmoor was in attendance for that purpose, but that he was confident that said Dinsmoor would not testify to any such fact; that the petitioner was advised by his counsel, and verily believed that said deposition and the testimony of said Dinsmoor would not be admissible in evidence to prove the fact that said receipts were false and forged; that the witnesses by whom he could prove that he was not in Lowell, at the time said deposition was taken, were all absent except James S. Moore; that he never did make, sign or swear to the said deposition; that he was not in Lowell at the time said deposition was given; that he verily believed that said deposition was genuine ; that he relied upon the advice of his counsel, and was greatly surprised by the testimony of said James Dinsmoor; that in case a new trial should be granted him, he could prove by the testimony of Hill Hyde, James S. Moore, Jasper F. Clayton, Joseph Morrill and William Eobbins that he was not in Lowell at the time said deposition was given.</p> <p>The testimony of the Avitnesses named in the petition was to the effect that the respondent and petitioner was in Strafford, in this state, at the time the deposition of said Richardson was given in LoAvell, Mass.</p>

Straightening and discontinuing of highways. Trespass for breaking and entering the plaintiff’s close. Plea, the general issue, and notice; trial by jury, March Term, 1854, — ■ Poland, J., presiding.

Contribution of towns for support of highways. Jurisdiction. Indictment for neglect to open a public highway laid out, and ordered to be built by the respondent town. Plea, not guilty; trial by the court, March Term, 1854, — Poland, J., presiding.

Partition of real estate. Jurisdiction. Petition eor partition in pursuance of cliapt. 43 of the Compiled Statutes.

Application of payments. Assumpsit. The declaration contained the general counts; plea, the general issue, and statute of limitations; trial by jury, March Term, 1854, — Poland, J., presiding.

Costs. Trespass. The defendants jointly plead not guilty; and at the-March Term, 1854, the cause was tried, upon said issue, by jury. The plaintiff’s evidence upon the trial tended to prove a joint trespass against both defendants. The same counsel appeared for both defendants, and both defendants testified in the case, and their evidence tended to disprove the commission of the trespass by both or either of them. The jury returned a verdict for both defendants.

Deed of the north half of a lot; its construction. Highway, an incumbrance upon the land it crosses. Admissibility of parol evidence. Relief at law. Covenant Broken.

Wills, their publication, attestation and proof. Appeal from the decree of the probate court for the district of Washington, disallowing the probate of an instrument, purporting to be the last will and testament of Ezra Dean. The case was tried by jury, September Term, 1854, — Poland, J., presiding.

Possession of land, actual and constructive. Trespass quare clausum fregit alleged to have been committed on lot No. 35 in Goshen Gore. Plea, the general issue; trial by jury, September Term, 1854, — Poland, J., presiding. The plaintiff read in evidence a certified copy of the charter of Goshen, and a deed, from Silas J. Holbrook to himself, of said lot No. 35, dated February 24, 1853.

Evidence of organization, tyc., of school district. Right of teacher to remove scholar. Indictment for an assault and battery on Peter Bean. Plea, not guilty; trial by jury, September Term, 1854, — Poland, J., presiding.

Oontractfor service. Book Account. In April, 1854, the plaintiff contracted to labor for the defendant, in taking charge of and tending his circular saw, for the term of one year, at the rate of $14 per month, with the understanding that if he had good reason to be dissatisfied with the defendant, or with the treatment which he should receive from him, he might leave.

Privilege from arrest. Action on the case. The defendant, Nathaniel Curtis, plead in abatement that the writ was served upon him by arresting his body and holding him to bail, at a time when he was attending a justice court, as party respondent to a stale prosecution, on the complaint of the state’s attorney of Washington county against him, which was then on trial before the justice, &c., — that by the laws of the state he was privileged from arrest while going to,…

Assignment law of 1852. Trustee process. Trustee Process. The trustees severely disclosed that they were indebted to the principal defendants upon choses in action; but that, after the service of the writ, summoning them as trustees in the present action, they were notified by the claimants that the demands against the said trustees had been assigned to said claimants.

Contract, performance and construction of. Damages. Stock payments, amount recoverable on refusal of. Reference. Costs. Assumpsit. General counts. By the agreement of the parties, the cause was referred, and the referees reported the following facts in reference to those items of the account which were considered and passed upon by the supreme court.

Practice. Supreme court. In this case, pending in the county of Addison, the verdict and judgment being for the defendants, and the plaintiff having taken exceptions, the defendants, at the January Term, 1856, moved to dismiss-them, on the ground that they were not filed within thirty days after the adjournment of the county court, according to the statute requirement.

Abandoning exceptions. Costs. In this case the county court decided the case, upon demurrer, for the defendants. The plaintiff had exceptions allowed which were filed during the term. Some weeks, before the commencement of this term, the counsel for plaintiff gave notice to the opposite counsel, that he should abandon his exceptions. The execution was stayed by the county court.

Practice. Right to open in the supreme court. In this case, heard at the March Term of the supreme court, for the county of Orange, A. D. 1856, the plaintiff had two distinct claims which he was prosecuting against the estate of defendant. In the county court one was decided in his favor, and the other in favor of the estate. Both parties excepted to the decision, and the exceptions on both sides were prosecuted before this court.

Costs. Offset. A question in regard to taxation of costs, in this suit in which the judgment was affirmed, at the last term, was brought before the court this term. The action was book account, in which judgment to account was given the first term, a trial was had before the auditor and a report for the plaintiff and exceptions to the report, and judgment upon the report, in favor of the plaintiff.

<p>A libel for a divorce which is not signed by the libellant, and the citation attached to which is signed only by a justice of the peace is fatally defective. And the irregularity is not waived by the libellees attending the taking of the testimony; and cannot be cured by a subsequent signing and the issuing of a new citation.</p>