Volume 28 — Vermont Reports

Trespass for taking a quantity of hay and straw. Plea, the general issue; trial by jury, March Term, 1855, — Poland, J., presiding. The plaintiff’s evidence tended to prove that in April, 1852, he leased his farm to the defendant Stevens until the first day of April, 1858, for which Stevens was to pay $140, rent.

Audita Querela to set aside a judgment recovered before a justice of the peace, in favor of the defendant against the complainants, on the ground that the complainant Charles Wrisley was a minor, and appeared only by attorney, and had no guardian ad litem appointed to appear and defend for him. Plea, the general issue; trial by the court, March Term, 1855, — Poland, J., presiding.

Book Account. The plaintiff’s account was for labor and expenditures in building a school house for the defendants, in reference to which the auditor reported the following facts.

The nature of the action originally brought, does not appear in any of the papers furnished to the reporter. The case was referred, and the referees reported the following facts. The plaintiff became of age March 14, 1824, and soon thereafter agreed to go to work for his father, the defendant, and take his pay in land. No time was specified and no price was agreed upon.

Trover for a quantity of corn which the plaintiff’s testimony tended to show was sold to him by William P. Briggs, on the 7th of December, 1852, at which time the plaintiff took a lease of the said Briggs’ real estate in Richmond.

Trustee Process. The plaintiff’s writ was served on the 28th of September, 1854. The persons summoned as trustees were the trustees of the holders of the first mortgage bonds of the Vermont Central Railroad Company, and the principal defendant had for two years previous to that time labored for them at a given price per day, but without any agreement as to time, they having the right to discharge him, and he the right to leave at any time.

Book Account. The auditor reported that on the 30th day of January, 1854, at Concord, N. H., the plaintiff contracted with the defendant to sell him one thousand bushels, or more, of potatoes, delivered in Boston, in good order and well sorted, at seventy cents per bushel, to be delivered on or before the first day of April then next, to be paid for by the defendant as fast as delivered; that on the 28th day of February following, the plaintiff delivered, on said contract,…

Declaration in assumpsit against the testator as endorser of a promissory note given by S. F. Belknap. Plea, the general issue; trial by the court, September Term, 1855, — Poland, J., presiding. The plaintiff read in evidence the note declared on; and the signatures of all the parties thereto, the due presentment, protest for non-payment, and notice were admitted; and the following facts were also admitted.

Appeal by tte heirs of the estate of Ebenezer Dodge from a decree of the probate court, allowing the administration account of the appellee.

Assumpsit on a promissory note. Plea, the general issue ; and pleas in offset in assumpsit, and for covenant broken. Replication, non-assumpsit to the plea in offset of assumpsit; and two special replications to the plea in offset of covenant broken,-r,tq which the defendant demurred.

Assumpsit. The allegations in the declaration do not appear in any papers in the possession of the reporter, except so far as they are stated in the opinion of the court. Plea, the general issue; trial by jury, September Term, 1855, — Poland, J., presiding.

Petition eor a decree oe nullity of a marriage contract between the petitioner and petitionee. The facts upon which the petition was based, so far as they were sustained by the testimony, sufficiently appear in the opinion of the court, which, after argument by

<p>Trustee process. The trustee disclosed as follows:</p> <p>“ Sometime in the year 1852, 1 said to Mr. R. F. Abbott that I “ wanted some stone for a front walk. He replied that he could “probably procure or furnish them.- In the month of August “ 1853, Mr. Bradish served a trustee writ upon me as indebted “ to said Abbott. I had not then received the stone of any one. “ On the afternoon of the same’ day, or the forenoon of the next, “ (I am not certain which,) Mr. Moses Peck said to me that he “ had some granite stone for a walk to deliver me as the property “ of Mr. Drury, who had employed him to bring them; and that he “ should deliver them only as the property of Mr. Drury. I said “ to him he might so deliver them, and he did so. Mr. Abbott “ laid the stone for me, and received his pay therefor by an order “ on E. P. Walton & Son.”</p> <p>Commissioners were- appointed, who reported that the trustee was indebted to the principal defendant in the sum of sixty dollars, and chargeable for that sum; subject to the opinion of the court upon the following facts.</p> <p>The debt of the trustee is for 114 feet of hewed granite stone, delivered to him by Abbott, on the 3d day of August, 1853, for a walk from his front door to the street, with curb stones at the sides, which were immediately laid down, and have been ever since, and are now used for that purpose. These stone were taken from a granite quarry owned by Erastus S. Camp, and mostly after March 10, 1853. Some time previous to that time, Abbott made an arrangement with Alvan Drury to take a lease of this granite quarry from Camp ; Abbott paying or securing the rent, so that Drury was not to pay or be holden for it, in any way, at any time. Abbott then applied to Camp for a lease to Drury; and Camp subsequently executed one in duplicate, but it was never accepted or executed by Drury. The rent, as stipulated in the lease, was $ 35, per year, but it has never been paid. Drury declined to pay it, and |he commissioners found that he was not liable for it, and they did not find that either Drury or Abbott had any right to take stone from the quarry till the rent was provided for in some way, which had never been done. The stone were worth in the quarry one cent per foot. In laying them down for a walk at the trustee’s house, the space to be occupied by the walk was first dug out and a foundation of rough stones laid, upon which the flat granite stones, three in number, were placed. The face of the flat stones, was upon the same level as the earth surrounding. The curb stones were set in the earth by the side of these flat stones, arising above them four or five inches. For some two feet in width at the side of the curb stones, the soil was raised nearly to the height of the curb stones, which were set in the earth about six or eight inches below the upper surface of the flat stones. The walk was cut and fitted for the place it occupies, but can be removed without doing any damage to the dwelling house of the trustee.</p> <p>At the time of the service of the writ in this suit Abbott was indebted to Drury. The stone were attached on the plaintiff’s writ in this suit, as the property of Abbott, and were then in the charge of the teamster, Moses Peck. Thereupon Abbott requested said Peck to deliver the stone to the trustee as the property of Drury, which the said Peck then did as is narrated in the trustee’s disclosure, all the facts stated in which the commissioners found to be true. After this, the attachment of the stones was abandoned and the trustee process relied upon to secure the debt. Drury knew nothing of Abbott’s contract with the trustee, and nothing of these stone until the present suit was commenced.</p> <p>During the hearing before the commissioners, and near its close, Camp notified the trustee, that he claimed said stone as his property. He did this upon learning that Drury denied all liability for the rent of the quarry, Abbott being wholly irresponsible.</p> <p>Upon the facts so disclosed and reported, the county court, March. Term, 1855, — Poland, J. presiding, — adjudged the trustee chargeable for the sum reported. Exceptions by the trustee.</p> <p>The ownership of a thing, whether real or personal, carries with it the right to all that the thing produces, and to all that becomes united, attached or interwoven with it, provided only, that its identity be not destroyed. This principal was recognized by the civil law; Wood’s Inst. Civ. Law, 92; and in the 5th Henry VII. “ after solemn argument on demurrer” was held to be law in England ; and has never ceased to be so considered, and is recognized in Betts et. al. v. Lee, 5 Johns. 348; Curtis v. Groat, 6 Johns. 169; Silsbury Galkins v. Mo Goon fy Sherman, 6 Hill 425 ; Baker v. Wheeler fy Martin, 8 Wend. 505; Chandler v. JEdson, 9 Johns. 362 ; Babeook v. Gill, 10 Johns. 287; Brown v. Sax Kimble, 7 Cowen 95; Miller v. Humphrey, 2 Marshall 449 ; Bitrnes v. Johnson, 1 J. J. Marshall 197; 2 Johns Ch. R. 62 ; Barron v. Oobleigh et al 11 N. II. 558; JRyder v. Hathaway, 21 Pick. 298; 2 Black. Com. 404 ; 2 Kent’s Com. 296 ; 1 Bouv. Inst. 197,199 ; Bac. Abr. Trespass, E. 2; 2 Rolle 393, 566.</p> <p>Walton cannot be adjudged the trustee of Abbott, even if the stone have been attached to the freehold, which we deny, for Camp may maintain trover for their conversion. Abbott could convey no title to Walton as he himself had none. The property still remained in Camp and no tortious act of Abbott or Walton could divest him of it. Buckmaster v. Mower et al. 21 Vt. 204. See also Martin v. Porter, 5 M. & W. 351; Wingate v. Smith, 20 Maine 237.</p> <p>The stones became a part of the trustee’s realty; and after property has been taken from the owner and converted into real estate, the owner cannot reclaim it. Silsbury Sf Galkins v. Me Goon £; Sherman, 6 Hill 425; S. C. 4 Denio 332; Brown v. Sax, 7 Cow. 95 ; Bro. Ab. tit. Property, pi. 23. By the civil law a similar rule is prescribed. 2 Kent’s Com. 364; Bacon’s Ab. Trespass, 580.</p> <p>Thé stone in the quarry were worth $ 1.14, and were, by the labor and skill of Abbott, increased in value so as to be worth $ 60. This is to be likened to the case of the fine painting on canvass, where the owner of the canvass is not held to be the owner of the painting. The principal part was furnished by Abbott. Camp’s part was trivial. 2 Kent’s Com. 362.</p>

<p>Action on the case for the disturbance of a water course. The declaration contained three counts, the first and second charging the defendant with having lowered and changed the channel of a brook, which divided the farms of the plaintiff and defendant, and diverting the water therein; and the third complained of an interference by the defendant, with the natural flow or passage, Éy percolation, of the water through the defendant’s land, to the plaintiff’s, by means of which a reservoir or tub on the plaintiff’s land was supplied with water. Plea, the general issue; trial by jury, March Term, 1855, — Poland, J., presiding.</p> <p>The plaintiff’s evidence tended to prove that the defendant’s farm lay north and east of the plaintiff’s ; and that the plaintiff’s farm and the defendant’s land lying north of it were divided by a small brook, which came from a spring further east on the defendant’s land, and run westerly, and that sometimes, in the summer, the brook would become wholly dried up. At the north-east corner of the plaintiff’s farm, and on the south side of the brook, there was a small piece of level ground, some ten or fifteen feet wide, and extending up and down the brook about two rods, which was partly on the plaintiff’s land, and partly on the defendant’s land lying east; that this piece of flat ground was wet, porous and spongy, so that by digging into it the cavity would fill with water; that, prior to the act of the plaintiff in laying his aqueduct as hereinafter stated, there was no water apparent on the surface of this piece of flat ground, and no appearance of a spring of water there, hut that the water in the soil came from the brook above by percolation through the soft soil and upon the surface of the flat rock under the soil; that some four or five years (previous to the spring of 1852, the plaintiff, by leave of the defendant, dug a hole in this piece of flat ground, a few feet over the line on the defendant’s land, and in this hole placed a tub which filled with water, and laid an aqueduct of lead pipe from the tub to his buildings, and from that time up to the spring of 1852, procured in this manner an ample supply of water for his buildings, for which he paid the defendant annually the sum of one dollar and fifty cents; that in the spring of 1852, there was some difficulty between the plaintiff and the defendant, and the defendant notified the plaintiff to remove his tub and pipe from the defendant’s land, and the plaintiff, accordingly, took up his tub, and placed it in a hole in the Hat ground on his own side of the line, but within a short distance of it, and also very near the bank of the brook; that his lead pipe was placed in this tub, and that he continued to be well supplied with water until about the first of July, 1852; that the tub, when placed on the plaintiff’s own land, was sunk to the depth of a foot or more below the channel of the brook, and that the tub and aqueduct were supplied with water by the filtration of the water from the brook directly, and also through the soil and under the soil, on the defendant’s, side of the line. The plaintiff’s evidence also tended to prove that about the 1st of July, 1852, the defendant dug away and lowered the channel of said brook, beginning some two or three feet above, and east of the plaintiff’s corner, and extending twelve or fifteen feet below, so that the water of the brook was thereby made to run in the new channel, two or three feet further north, and about a foot lower than before ; that the defendant also dug a channel from the hole where the plaintiff's tub had formerly stood in his land, out into the channel of the brook, so as to carry all the water which collected there into the now channel he had made for the brook, above the plaintiff’s corner ; and that the defendant filled up the side of this channel, from the hole or spring to the brook on the side next to the plaintiff’s tub with drjr hard earth, so as to prevent any filtration of water, through or under the soil on his land, to the plaintiff’s tub, and that these acts of the defendant, prevented the water from accumulating in the plaintiff's tub, either from the brooh directly or through or under the soil of the defendants land, and that the plaintiff thereby toas wholly deprived of water by his said aqueduct; and that these acts of the defen^ daiit were not necessary, and were not done by the defendant with any purpose of supplying himself with water, for any purpose, but solely with the design of thereby depriving the plaintiff of water by his aqueduct. The defendant claimed, and his evidence tended to prove that, previous to the plaintiff’s putting his tub and pipe into the defendant’s land, as above stated, there was an open visible spring of water, where the tub was placed, the water from which flowed north into the brook on the defendant’s land, in a natural channel, and that there was never any such flow of the water of the brook through or under the soil on the defendant’s land, as the plaintiff claimed. The defendant also claimed that the plaintiff’s tub, after the same was placed on his own land, was not supplied with water by the natural percolation of the water through the soil, either from the brook, or from the water of this land or spring, but that it was supplied with water from the defendant’s spring, through a blind or underground ditch, which the plaintiff had made without his license or permission, and that the only effect of his acts, of which the' plaintiff complained, was to restore the flow of the water to its natural condition, as it was before anything had been done by the plaintiff. The defendant. also claimed that what was done by him, was done for the purpose of providing water for his pasture, and not to injure the plaintiff; and he also denied making a^y change of the channel of the brook, as claimed by the plaintiff, j. The charge of the court relative to the turning of the channel of the brook was not excepted to.' In relation to the other part of the case, the court charged (among other things not excepted to,) that the defendant had a right to prevent the flow or escape of water from his own land to the plaintiff’s tub by any artificial means that the plaintiff had used to obtain it, and that he might lawfully do all that was necessary to restore the water to its natural flow, and that it was not material what his purpose or motive was; and that the defendant would not be liable for any act of his, upon his own land, in preventing the natural flow or escape of water, in or under the soil from his land to the plaintiff’s, provided such act was done for the purpose of reasonably providing himself, or his farm or cattle, with a supply of water; but if they found that the acts of the defendant did prevent the usual and natural flow of the water, in or under the ground from the defendant’s soil to the plaintiff’s, and that these acts were done by the defendant solely with the purpose of injuring the plaintiff, and depriving him of water, and not with any purpose of usefulness to himself, then he would be liable to the plaintiff'for such damages as he thereby sustained. The jury returned a verdict for the plaintiff on all the counts in his declaration. To so much of the charge as is above detailed, the defendant excepted.</p> <p>There was error in the charge that, if the defendant prevented the percolation in order to deprive the plaintiff of the water, without any purpose of usefulness to himself, he would be liable, &c.</p> <p>In the well-considered case of Acton v. Blundell, 12 M. & W. 824, no such distinction is made, and the doctrine of the absolute right of the owner of the soil, to the entire control, at will, of this species of water, on his own land, is fully established. See also Greenleaf v. Brands, 18 Pick. 117.</p> <p>If underground water in its percolations and filtrations, from its peculiar nature, and from our ignorance of its course, and the laws that control it, is not subject to the law as it applies to running water, then that of it which is on any man’s land, like any other thing which makes the soil, or is contained in it, is absolutely the owner’s.</p> <p>The entire dominion of the owner over Ms own soil is settled beyond question. Thurston v. Hancock, 12 Mass. 220; Panton v. Holland, 17 Johns. 92.</p> <p>If a man does an illegal act with a good motive, he is nevertheless liable to an action; so, if he does a legal act with a lad motive, no action will lie against him. Ifathaway v. AUen, Brayton, ■ 152. Buffer’s N. Prius 14. Runnels v. Bullen, 2 N. II. 532. Greenleaf v. Brands, 18 Pick. 117. In this last case the court say, “ every one has the liberty of doing in his own ground whatsoever he pleases, even though it should occasion to his neighbor some other sort of inconvenience.”</p> <p>The flowing of the water in its natural course to the plaintiff’s land was an incident thereto, as much as the right to haye the soil itself, in its natural state, unaltered by the acts of the defendant; who could not lawfully dig, so as to deprive it of the support of his land. Tyler et al. v. Wilkinson et al. 4 Mason 401.</p> <p>The defendant had a right to use the water of the spring, and the water of the brook in common with the plaintiff, but he was bound to exercise that right in a reasonable manner; and if he diverted the water maliciously or wantonly, to the injury of the plaintiff, he would be liable in damages. Twiss v. Baldwin, 9 Conn. 291. Bay v. Stennell, 2 Watts 327. Greenleafy. Francis, 18 Pick, 117. Gale and Whatley on Easements, 243-4 n. Platt v. Johnson § Root, 15 Johns. 213. Panton v. Holland, 17 Johns. 92.</p>

Action on the oa se. The declaration was as follows. “ In a plea of the case, whereupon the plaintiff declares and says, that heretofore, to wit, on. the 11th day of November, 1853, and for a long time before that time, the defendants were in the possession of the-Vermont Central Railroad Company’s track, and of all engines, locomotives, cars, and other furniture, which had previously belonged to the Vermont Central Railroad Company, a corporation chartered and organized by…

Assumpsit for money paid. Plea, the general issue; trial by jury, September Term, 1853, — Peck, J., presiding. The plaintiffs were severally sureties for the defendant upon two notes for $500 each, ope payable to the Bank of Montpelier and the other to the Farmers and Mechanics’ Bank in Burlington.

<p>Trustee process. It appeared from the disclosure of the trustees, and their answers to the interrogatories filed by the plaintiffs, that the principal defendants had made an assignment of their property to the trustees who were their creditors and holden for them as sureties and endorsers. The assignment was for the benefit of, and preferred other creditors as well as the trustees. The assignees took possession of the property assigned and had converted a part of it into money. It was claimed by the plaintiffs that the assignment was void and that the trustees were chargeable for the property and money which they had received under it. The county court, May Term, 1854, — Poland, J., presiding, — decided that the assignment was invalid and that the trustees were chargeable for the property received by them under it to the amount of the plaintiffs’ judgment against the principal defendants. Exceptions by the trustees. The nature of the assignment and of the claims of the trustees under it, and the other facts stated in the disclosure and answers, sufficiently appear in the opinion of the court, which after argument by</p>

<p>Assumpsit to recover the amount claimed to be due to the plaintiff from the defendants, as partners, and for which amount the plaintiff had, on the 16th of November, 1850, taken the note of the defendant Franklin alone. The defendant Thompson plead the general issue, the defendant Franklin not appearing, or making any defense. The declaration, as originally drawn, counted specially upon the note. Upon a trial at the November Term, 1854, the county court, — Peck, J., presiding, — decided that, upon the testimony introduced which consisted of the note and evidence of its consideration, the plaintiff could not recover against Thompson, upon his declaration, as it then was, but allowed the plaintiff to file a new count, counting upon an account stated. To the decision of the court allowing said amendment, the defendant Thompson excepted.</p> <p>Upon a trial by jury at the November Term, 1855, — Peck, J., presiding, — the plaintiff read in evidence a promissory note for $74.95, dated November 16th, 1850, payable to the plaintiff, and signed by the defendant Franklin, accompanied with testimony tending to prove that the note was given for the amount due to the plaintiff upon an account which accrued, wholly or in part, in his favor against both defendants as partners. The plaintiff testified that, in the summer of 1850, Franklin told him to present his bill and he would settle it; and that afterwards, at the date of the note, he and Franklin looked over the account and they agreed on the balance at $74.95; that Franklin, after they had so agreed, wrote the note and signed it, and wrote a l-eceipt, and presented him the note, and asked him to sign the receipt; that he told Franklin he would take the amount they had agreed on, but wanted his pay; that lie did not like that note; and that Franklin said it would make no difference, and would be just as well, he would have his pay in a few days, or words to that effect; that he signed the receipt and took the note ; the receipt being as follows, “ received of George Franklin his note to balance account up to this date.”</p> <p>Thompson offered in evidence the deposition of one David Greeley, to the admission of which the plaintiff objected. It appeared that it was taken during the term, on Saturday evening, at about five o’clock, the trial being on Monday after; and was taken after notice by the justice, (who took it,) to the plaintiff to attend at the taking, which notice was given verbally at 4-J- o’clock the same evening. The plaintiff attended at the taking, but had not sufficient or reasonable notice to ¡procure the attendance of his counsel, and he objected to its being taken on that account. The court excluded the deposition, and to their excluding it Thompson excepted.</p> <p>Thompson requested the court to instruct the jury, that if the note was taken by the plaintiff in payment of the balance found at the time of giving it, the plaintiff was not entitled to recover against Thompson ; that the receipt was prima facie evidence that the note was so taken in payment, and the burden of proof was upon the plaintiff to show that it was not so taken. The court declined so to charge; but did charge that the taking of the note, and giving the receipt; were so ma,ny circumstances to be weighed by the jury, in connection with the rest of the evidence, in determining whether the note was to be taken in payment or not; that if they should, from all the evidence, find that it was the understandiiig of the parties that tlie execution and delivery of the note and receipt, should be in payment, satisfaction or discharge of the account, or that Stevens should look to Franklin alone for payment, the plaintiff was not entitled to recover against Thompson. To the refusal of the court to charge as requested, and the charge on this point, Thompson excepted.</p> <p>Verdict for the plaintiff.</p> <p>The only claim set forth in the original declaration, not only on its face appeared to be, but, in fact,.was against Franklin alone. It was therefore error to permit the filing of a count upon a claim against Thompson and Franklin, because the new count was for a different cause of action.</p> <p>The receipt of the note “ to balance account,” was prima facie evidence that the note was accepted in payment and discharge of the account. Hutchins v. Olcutt, 4 Vt. 549 ; 1 hatcher v. Hinsmore, 5 Mass. 302; Chapman v. Durant, 10 Mass. 47; Follett v. Steele, 16 Vt. 30 : Torrey v. Baxter, 13 Vt. 452.</p> <p>The deposition of Greeley was improperly rejected. If the party in fact attends, the question of the reasonableness of the notice is thereby settled. The statute only requiring that the notice “ shall be given or served so that the party may have a reasonable time to appear and be present.” Acts of 1854, p. 4.</p> <p>Whether a note was given and received in payment of a subsisting claim, is a question of fact which, in this case, has been found in the plaintiff’s favor. FoMett et al v. Steele, 16 Vt. 30, and cases cited. Way dell et al. v. Law, 5 Hill 448.</p> <p>The plaintiff was only present at the taking of Greeley’s deposition under protest, and is not thereby deprived of any of his legal rights respecting it.</p>

<p> Award. </p> <p>Neither mistake or irregularity of conduct on the part of arbitrators, which does not affect the whole award, is a ground of defense to it, in an action at law.</p> <p>An award, which is operative as a final and conclusive adjustment of all matters between the parties, is not vitiated by an order requiring them to execute mutual releases.</p>

<p>[IN CHANCERY.]</p> <p> Vacating a decree. Appeal. </p> <p>The court of chancery may vacate a decree made and enrolled upon, and in consequence of a bill being taken as confessed, so as to permit a defense to the suit upon its merits.</p> <p>An application for this purpose is addressed to the discretion of the court of chancery, and should not be considered and determined by the supreme court.</p> <p>If the application is granted, it is only an interlocutory, and not a final order or decree, and no appeal can be taken from it.</p>

<p>Appeal from the court of chancery. One Rockwood was the owner of the equity of redemption of a piece of land, in Burlington, mortgaged by Charles Adams, the grantor of Rockwood, tQ one Gates, which he (Rockwood) bargained and sold to the defendant Lester S. Warner, but, in Ms deed, the description, instead of commencing at the north-east corner, by mistake commenced at the south-east comer, and described, by giving courses and distances which would have been correct with the north-east corner as the starting point, a piece of land lying wholly south of that owned by him. Neither party knew of the mistake, and the grantee, Lester S. Warner, entered upon the land purchased, and which he supposed was described in his deed, and erected a house thereon, and remained thereafter in the possession and occupancy of it. While so in possession, the oratrix, being a creditor of Lester S. Warner, commenced a suit, and attached all his real estate in the town of Burlington, and subsequently obtained a judgment against him, and took out an execution thereon, which she seasonably caused to be levied on an undivided interest in the equity of redemption of the premises so occupied by the debtor, and which was the only real estate which he owned, or was interested in at the time of the attachment. Between the time of the attachment and levy, the defendant Amasa Warner obtained from Bockwood a quit-claim deed to himself of the premises intended to have been described in the deed to Lester S. Warner. The bill alleged that this quitclaim deed was obtained without the payment of any consideration, and for the purpose of depriving the oratrix of the means of enforcing the payment of her claim, &c.; and prayed that the defendants might be decreed to make assurance and legal conveyance to the oratrix of that part of the equity of redemption which had been so set off to her, and for general relief.</p> <p>The defendants, in their answer, averred that, at the time of the purchase from Bockwood, the premises were encumbered by a mortgage from him to Charles Adams, securing notes, then outstanding and unpaid, to the amount of $250, and were sold subject to that encumbrance; that, for the purpose of aiding the defendant Lester S. Warner to make said purchase, Abijah Warner agreed to give, and did give, his note to the person who then held the notes from Bockwood to Adams, under an agreement between him and both the defendants that, if Lester should go on and pay said notes, and save Abijah harmless, the premises were to become and be his property; but that he should not alienate or charge them with any incumbrance until said notes were paid, and in case either Abijah or the defendant Amasa should pay said notes, or any part of them, Lester should convey to them the premises for their security; that $195 of the $250 was paid, when it became due, by the defendant Amasa, and the remainder by Lester ; that, at the time of erecting the house on said premises, the said Lester, being unable himself to raise the necessary money, applied to Amasa and promised, if he would advance money and other articles required in said building, that he would execute to him a deed of the premises to secure him for such advancements as well as for those he had previously made ; and that, under this agreement, gnd for the purpose of aiding Lester in building the house, he (Amasa) did make advancements to him to the amount of $451.52, and that no part of either of said sums of $195.00, or $451.52 had ever been repaid; that Amasa called upon' Lester for a deed of the premises, to secure said advances, and upon their examining Eockwood’s deed, it was first discovered that it did not describe, and that Lester had no title to the premises in question, and that thereupon, for the purpose of furnishing to Amasa the security promised to him, and for no improper or fraudulent purpose, it was agreed that, if the said Amasa could, he should obtain a quit-claim deed of said premises from the said Eockwood to himself, and hold the same for his security, and that thereupon the quit-claim deed was obtained; and the defendant Amasa Warner insisted that he was entitled to hold said premises as security for all of his said advances, &c.</p> <p>The answers were traversed and testimony taken, and the court of chancery, March Term, 1855, — Peck, Chancellor, — being of the opinion that the original mortgage for $250, might be regarded in equity as still subsisting in favor of Amasa Warner, to the amount paid by him thereon, and, aided by the deed from Eockwood to him, constitute a lien on the premises, having priority over the oratrix’s attachment and levy; yet, as it appeared that the value of that portion of the premises not covered by the levy was sufficient to pay the sums paid by Amasa upon the mortgage, and, being of the opinion that the attachment and levy of the oratrix had priority over the other claims setup by Amasa Warner, decreed that the defendants severally convey by deed to the oratrix that undivided portion of the premises, which were embraced in and covered by her levy, &c.</p> <p>Appeal by the defendants.</p> <p>An attachment is a lien upon land, of which the debtor is the equitable owner, to the same extent as upon land of which he has the legal title. Comp. Stat. 312, § 19.</p> <p>The lien of the oratrix was prior to that of Amasa, for the lien of the latter never attached to the land, so as to become operative at all — it was a contract that a lien should be created in futuro, and not a present incumbrance.</p> <p>But if a lien did exist in favor of Amasa as against Lester, it could have no effect as against the oratrix, who had no notice of it. She stands in the position of a bona fide purchaser, from the equitable owner in possession. Bigelow v. Topliff, 25 Vt. 273. Garter v. Champion, 8 Conn. 549.</p> <p>The statutes of registry apply as well to the creation of liens upon equitable as upon legal estates. Comp. Stat. 384, § 7-24. Parhist v. Alexander, 1 J. C. B. 394. And the superior diligence of the oratrix in attaching, before any act on the part of Amasa, gives her the best right, inasmuch as the estate of Bockwood in the land was a dry trust. Story Eq. 421-6.</p> <p>I. Lester Warner, at the time the attachment was made, had a mere equitable interest in the premises. That interest only was reached by the attachment. .His interest was subject to the claims of Amasa. It nowhere appeared of record and was evidenced only by his possession. The oratrix was not misled in making her attachment, by the record, for there was none, nor by the possession, for that was notice of title, according to the terms of that possession. Pope v. Henry 24 Vt. 560.</p> <p>II. Amasa having paid the purchase money on the mortgage, and thereby extinguished that incumbrance, his right to hold the premises as security, to the extent of'such payment, was not denied by the court below. This right rests upon a familiar principle of equity. At the time of the purchase Amasa became liable to pay this incumbrance, and, under the agreement then made, afterwards paid it; and the oratrix, in her levy, takes the benefit of such payment. Equity will, in such a case keep the mortgage on foot, for the benefit of the person who has paid the money. Bowner v. Fox, 20 Vt. 388. Paine v. Hathaway, 3 Vt. 212. Irish v. Clayes, 10 Vt. 81.</p> <p>HI. The right of Amasa Warner to hold the premises as a security for the labor and material furnished to build the house, rests upon equally strong grounds. ” These advances went to enhance the value of the property. They were placed there by the legal, at the request of the equitable owner. The oratrix seeks the aid of a court of equity to put her in possession of property which those advances have created. Before the court will lend that aid, she must repay them. Pope v. Henry, above cited. Story’s Eq. Juris., vol. 2, 1236, 1237, 1238, 1239, 799 and notes— note p. 691. Woods v. Scott,14: Yt. 518, Bright v. Boyd, 1 Story 478.</p>

<p>Assumpsit for insurance premiums received by the defendants as agents of the plaintiffs. The defendant Wires made no defense; the defendant Peck plead the .general issue, upon which a trial was had by the court, March Term, 1855, — Peck, J., presiding, — 1 when the following facts appeared.</p> <p>The defendants, in June, 1853, were partners and as such were the agents of the plaintiffs, and received in that capacity premiums for the plaintiffs to the amount of $ 442.22, which was subject to a deduction of $ 22.35 for the defendants’ charges as agents, leaving a balance of $419.22, due to the plaintiffs on the 1st of July, 1853. On the 8th of July, 1853, the defendants dissolved their copartnership, and Peck promised Wires that he would pay the plaintiffs their claim. He paid towards it only the sum of $ 87.20, which he remitted September 24, 1853, and in November following, Wires, being desirous to avoid the payment of the claim himself and to have its collection enforced from Peck, applied to his brother, Martin Wires, and requested him to purchase the claim by advancing to the plaintiffs the amount due upon it, and taking an instrument of transfer of it to himself. This the said Martin, knowing the facts already stated and the motive of Ms brother, con* sented to do, it being understood that the defendant Wires was to make the negotiation with the plaintiffs. A correspondence was commenced for this purpose which resulted in the execution by the secretary of the plaintiffs, on the 30th of November, 1853, of a written assignment of the claim to the said Martin Wires, at his own risk and cost, for which he gave to the plaintiffs his note, payable to the order of, and endorsed by the defendant Wires for the amount then remaining due to the plaintiffs, and this note was paid at its maturity with the funds of Martin Wires, which were transmitted through the hands of the defendant, Wires. The claim thus assigned was, in pursuance of a previous arrangement with Martin Wires, placed by the defendant Wires in an attorney’s hand for col. lection, and soon thereafter the present suit was brought; but the plaintiffs had no knowledge of it until in March, 1855 ; and they had never authorized it to be brought unless it was by giving the assignment.</p> <p>The defendant Peck insisted that there was no legal assignment of the debt; — that plaintiffs had received their pay; — that the payment by Martin Wires, and the assignment, though an assignment in form, was, in fact and in law, a payment; that the defendant Wires could not procure an assignment for the purpose of having the debt collected for his benefit, and thus keep the debt subsisting; that the secretary of the plaintiffs' had no power to assign the debt, and that there was no proof of the existence of the plaintiffs as a corporation, and for these reasons insisted that the plaintiff could not recover: hut the court, upon the facts above detailed, rendered judgment for the plaintiffs for the amount claimed. Exceptions by the defendant Peck.</p> <p>1st. That' there was no proof of the corporate existence of the plaintiffs. 2d. That, if a corporation, the power of assignment was not incident to their corporate existence; — and, if they could assign,the secretary, as such, could not execute the transfer; and that therefore the suit, having been brought without authority, could not prevail. 3d. That, the promise from Peck to Wires not appearing to have been on consideration, the defendants stood jointly liable to the plaintiffs as between themselves, and that any agreement that the debt should be collected of one alone was a fraud upon him and could not be enforced.</p>

Assumpsit. The writ was a summons to the defendant “to answer unto Samuel M. Pope, of Burlington aforesaid, administrator upon the estate of Ebenezer T. Englesby, late of Burlington aforesaid deceased, as by said letters of administration ready in court to be produced will more fully appear; in a plea of the case, for that whereas, the defendant at Burlington, on the 10th day of February, in the year of our Lord one thousand eight hundred and forty-ninej did make, execute…

Action on the case to recover for damages to the plaintiff’s land, in consequence of the Bturning .of Winooski River by the defendants. The cause was referred, and before the referee it was shown that the plaintiff conveyed to the defendants, on the 19th of June, 1849, a piece of land, described in his deed of that date.

<p> Railroad company. Renees. Damages arising from negligence in the construction of their road. Liability for acts of the servants of their contractor. </p> <p>The provision in the charter of the Vt. & Canada R. Co., requiring them to huild and maintain fences on each side of their road, requires them to have such fences at least as soon as they commence running their road.</p> <p>In the construction of their road, the company were bound to exercise the rights conferred upon them with a prudent regard to the rights of others} and if they were guilty of negligence in this respect, whereby a land owner was injured, it is not tobe presumed, in the absence of proof, that the damages thus occasioned were taken into consideration by the commissioners in their subsequent appraisal of his land damages. The damages which they were to appraise, were those arising from a construction of the road properly and in a. prudent manner»</p> <p>A person is not liable for injuries occasioned by the acts or neglect of the servante of one who has contracted to do a piece of work for him by the job.</p>

Assumpsit for goods and money with a specification. Plea, tlie general issue ; trial by jury, March Term, 1855, — Pierpoint, J., presiding. No defense was made by Paul, and a verdict was rendered against him for the amount of the plaintiffs’ claim and costs. Hopkinson defended.

Trover for thirty-one bales of wool. Plea, the general issue ; trial by jury, March Term, 1855, — Pierpoint, J.,’ presiding.

Assumpsit against the defendants as endorsers of a promissory note signed by II. W. Catlin. Plea, the general issue; trial by the court, March Term, 1855, — Pierpoint, J., presiding. The plaintiff introduced in evidence, and proved the execution by H. W. Catlin, and the endorsement by the defendants of the note described in his declaration.

Bill of foreclosure of mortgage. The master, to whom it was referred to ascertain and report the amount due, reported the following facts. On the 5th of March, 1847, the oratrix loaned to the defendant the sum of $ 7,000.00, for which the defendant gave his note, payable to the oratrix, and 'secured by mortgage.

Book Account. The disputed items in the plaintiff’s account, which were passed upon in the supreme court, were as follows. Newell Lyons account, $33.60 Bal. on execution, S. Churchil v. you, 4.07 Fees on same, 2.38 Bal. on execution, Shepherd v. jo% 1.27 Fees on execution, Blodgett v. you and Jones, 2.66 Setting off land at your request, in the case of .

Action on the case to récover damages sustained by the plaintiff in consequence of the construction by the defendants of their railroad. Plea, the general issue; trial by jury, November Term, 1855,- — Pierpoint, J., presiding.

<p>Action on the case against the defendant for having, as sheriff, taken insufficient bail on mesne process. Plea, the general issue; trial by -, November Term, 1855, — Pier-point, J., presiding.</p> <p>The plaintiff having made out a prima facie case, the defendant introduced testimony to show that the bail was sufficient at the time it was taken. A witness stated that the bail, at the time of the service of the writ which the bail endorsed, owned certain real estate and personal property, which he described, and his means of knowing the then situation and circumstances of the bail. The counsel for the defendant then asked the witness what, in his opinion, from his knowledge of the said Ahira, (the hail,) and his affairs, was the value of said Ahira’s property over and above what he owed, at the time the defendant served the writ ? To the question so put by the defendant’s counsel, the counsel for the plaintiff objected. The objection was overruled by the court, and the witness answered the question, to which decision the plaintiff excepted.</p>

<p>Trustee process. The following facts are stated in the disclosure of tlie trustee, or appear from the papers attached to it.</p> <p>On the 8th day of December, 3851, the principal defendant executed and delivered to the trustee an assignment of all his goods, chatties, moneys, debts, accounts and demands, and all the real estate he owned, or was interested in, in the tottn of Burlington, in trust for the benefit of certain enumerated creditors, who were divided into four classes, and a distinction by way of preferences made between the different classes. On the 9lh of the same December, he executed and delivered to the trustee another assignment of the same property, and in all respects like the first, except that it contained a provision, after the payment of the creditors enumerated and divided into said four classes, for the payment of all Of the assignor’s other creditors. On the 10th of the same December, he executed and delivered, for the same purposes with those expressed in his assignment of the 9th, an assignment, to the trustee, of certain debts due, notes and demands, and articles of personal property specified in schedules annexed to the assignment. And on the 18th of the same month he executed and delivered to the trustee a conveyance of all of his real estate in the town of Burlington upon the same trusts and for the same purposes expressed in the last two proceeding assignments. These assignments were marked and referred to in the order of their dates as assignments A, B, C and D. Th'e trustee took possession of most of the property upon the execution of 'the first assignment, and there was no formal surrender of that, or of the second assignment, upon receiving either of the subsequent on'es. There was a horse, sleigh, and two wagons and sundry accounts, most of which were for less than ten dollars, which were not included in the third assignment, b,ut tiie trustee received a general 'bill of sále of the horse, sleigh and wagons, dated December 18tli, 1851, under which he took possession and disposed of them, and their proceeds -went into, and were distributed with the proceeds of the property sold under the assignment. Previous to the service of the trustee process, the trustee had paid some of the creditors specified in the first three classes, and had notified those specified in the fourth class that he was prepared to pay them nine per cent upon their claims against ITawley, and some of them had accepted of that dividend. The third class of creditors under the assignments were sundry persons who were to be indemnified and saved harmless from all liabilities they had incurred as sureties and endorsers for the assignor, among whom were Asahel Peck and the other persons who appeared as claimants in this suit; and the trustee disclosed that he was notified by the said Peck, in January, 1'852, not to surrender to Hawley the property received under the assignments.</p> <p>At the March Term, 1855, Asahel Peck, Horace Wheeler, James Morse, Seth Morse and.Myron Morse appeared as claimants and filed allegations, averring that, at the time of the malringof said assignments, they were respectively liable as sureties for the principal defendant to a large amount, — that the assignment was; made to secure them for said liabilities, and that, before the service of the trustee process in this suit, they accepted of the assignment and adopted the assignee as their trustee, and thereby acquired a lien upon the property in his hands, and, relying upon the same, had paid most of the demands, whereon they were liable, &c. An objection was made to the said Peck being allowed to appear as claimant, for the reason, (as alledged,) that he had not such an interest in the matter as entitled him to so appear; but the county court, May Term, 1854, — Poland, J., presiding, — overruled the objection, to which the plaintiffs excepted.</p> <p>The allegations of the claimants were then traversed, and upon the trial of the issue thus formed, at the November Term, 1855,— Pierdoint, J., presiding, — it appeared that the said Peck was, at the time the several assignments were made, surety for the defendant Hawley, to an amount sufficient to absorb the funds in the trustee’s hands, and that he had since paid such liabilities as surety for the defendant; it also appeared that said Peck, before the first assignment, requested the defendant to furnish him security, which the defendant promised to do by leaving with his (Peck’s) clerk, that day, good notes sufficient for that purpose, which promise was made the 8th day of December, 1851, as Peck was about leaving for Hydepark: and that upon his return the defendant informed him that he had put into the hands of Englesby property sufficient to secure him (Peck) and the defendant’s other endorsers.</p> <p>Peck immediately called on Englesby and requested him to hold on to the property for his (Peck’s) security, and Englesby agreed so to do; but said Peck did not, at the time, nor did Englesby suppose that Peck would be entitled to any more than his proportion with the other sureties of the defendant; and after that Englesby applied' to Peck and received from him advice and direction in reference to the management and disposition of the property.</p> <p>Thereupon the court adjudged that the trustee was not liable, and that he recover his costs; to which decision the plaintiffs also excepted.</p> <p>The first assignment, under which the property passed into the hands of the trustee, was void not only as a general assignment but 3-s containing a resulting trust; and all the subsequent assignments were void, without reference to the first, on account of their generality.</p> <p>As the paper “ A” conveyed all the property of Hawley, and was hot attempted to be cancelled or revoked, the subsequent instruments conveyed nothing, and were of no effect as against the suit of the plaintiffs; 10 Paige 210, Brownell v. Curtis; or, at most, they merely amounted to new declarations of trust. Neither'Hawley nor Englesby could revoke it; the creditors provided for, had acquired an interest in it. It was completely binding until it should be judicially condemned, at the suit of a creditor; 17 Vt. 297.</p> <p>The two last instruments, (had there been no others,) were clearly a general assignment. They do not purport to be partial and Hawley had no other property, save that mentioned in the disclosure; 17 Vt. 390, Dana v. Bull.</p> <p>The claimants were improperly cited in, and had no right to appear. The statute, (Comp. Statutes 263, § 53,) neither in letter or spirit applies to such a case.</p> <p>The proof, under theallegation, merely amounted to an acceptance of the assignment; — Hawley has given no other order or direction as to the property, than the assignments; and all the promise of Englesby to Peck amounted to, was merely, (as both understood it,) that he would hold the property under the assignments for the benefit of Peck and the other creditors in his class.</p> <p>Neither party supposed they were entering into any new contract or obligation, and the promise was verbal. See Haaeltine v. JPage, 4 Vt. 54; 19 Vt. 98, Barney v. Douglass; id. 644, Strong v. Mitchell.</p> <p>Such being the facts, the application of Englesby to eminent counsel for advice and direction in the matter, created no new right; Goodell v. Williams, 21 Conn. 419.</p> <p>The trustee, admitting the receipt of the property, must be held, unless sufficient matter in discharge appears on the record; 2 Met. 376; 17 Pick. 435 ; 21 Pick. 160.</p> <p>The papers marked A, B, C and D, are not to be construed together ; as it is obvious that the papers C and D were made to supersede A and B; and hence A and B are no part of the contract contained in C or D.</p> <p>The assignment C, upon its face, purports to be a specific or partial assignment; and the claims to be secured, by it are Iona fide. It is the duty of the plaintiffs, who seek to overthrow the assignment upon the ground that it is, in fact, a general assignment, to prove this ; Mussey et als v. Noyes et al., 26 Vt. 474-5.</p> <p>The trustee’s disclosure and the papers A and B, do not, ex vi termini, prove the assignment, as a matter of law, to be general within the statute. The court were authorized to give them such weight as they thought proper, and upon this matter this court cannot revise the finding of the county court, any more than they could the verdict of a jury ; Cahoon v. Ellis and Tr. 18 Vt. 500 ; Emerson v. Bradley and Tr. 18 Vt. 586 ; Fish v. Field and Tr. 19 Vt 141.</p> <p>The agreement on the part of Hawley to secure Peck in his absence, and his subsequent communication that he had done so , and the fact that Peck thereupon went to Englesby and requested him to retain and dispose of the property for his benefit, and Englesby’s agreeing to do so, and then disposing of the property under Peck’s advice and directions, is sufficient to show that Peck was the principal, and Englesby his agent; and that Peck had a clear vested interest, which he could enforce at law or in equity. This was the same in effect, as if the whole property had been put into Peck’s hands to secure him; and establishes Peck’s claim independent of (he assignment.</p> <p>If the assignment is void under the statute, certainly the creditors would have a right to make any other arrangement to secure themselves; and the facts clearly tend to show, and the court are authorized to find, that Peck was proceeding independent of the assignment; and this court will so treat it, if that is necessary to sustain the decision of the court below ; Wheeler et al v. Fhans and Tr., 26 Maine 133 ; Leyro v. Staples, 21 Maine 252 ; Fletcher v. Glarlc, 29 Maine 485.</p>

Assumpsit upon two guaranties. The cause was, by the agreement of the parties, referred; and the referee reported a balance in favor of the plaintiffs of $1,005.77, including interest, together with the following facts found and decisions made by him.

The question of negligence may, in some cases, he withdrawn from the consideration of the jury, as where there is no testimony tending to show it 5 or where a given course of conduct is admitted which results in detriment, and no excuse is given. In the latter case the liability follows, as matter of law, and there is nothing for the jury but a question of damages.

Assumpsit to recover money paid by tbe plaintiff for taxes, assessed against Orissa B: Keeler, his wife. Plea, the general issue; trial by the court, November Term, 1855, — Pierpoint, J., presiding.

Assumpsit for money had and received, money paid, &c., and trial by tbe court, November Term, 1855, upon tbe following agreed statement of facts. On tbe 15th of June, 1854, S. W. Taylor, who was then the constable of Burlington, bad in bis bands rate bills and warrants for tbe collection of several state, state school, county, town and highway taxes assessed against tbe plaintiffs in tbe town of Burlington.

Assumpsit. The facts in the case were agreed upon as follows. The plaintiffs hold three notes against the defendants for $3,000 each, dated August 15, 1854, due in thirty, forty and fifty days, respectively, after said date, for amount due upon which the plaintiffs are entitled to judgment.

The facts in the case were agreed upon, and were as follows. A paper of which the following is a copy “ Burlington, Vt., 24th December, 1853. “ To the President and Directors of the Michigan State Bank. “ Gents: — We authorize Messrs.

Ejectment to recover a'piece of land claimed as a part of lot No. 2, on Hog Island. Plea, the general issue; trial by jury, April Term, 1851, — Pierpoint, J., presiding. It was admitted, on trial, that the plaintiff was the owner of lot No. 2, and the defendant of lot No. 3, on Hog Island, in the town of Swanton.

Petition ^or partition of a certain farm in Fletcher. Plea, that the petitioners were not the owners of the undivided half of said farm claimed by them, hut that the same belonged to Dewey Nichols; trial by jury, June Term, 1854, — Poland. J., presiding.

Book Account. The plaintiff’s account was for his services in a suit brought by Theodora Allen, the mother of the defendant, against Dolplius Paul, to recover for property attached by him, as the property of Henry Allen, a brother of the defendant. The auditor reported the following facts.

Trover for a horse. . Plea, the general issue; trial by jury, June Term, 1855, — Peck, J., presiding.

<p>Book Account. The facts in the case are sufficiently stated in the opinion of the court, which, after argument by</p>

Assumpsit on an order drawn by Moses Cart on tbe defendant, in favor of the plaintiff, and accepted by the defendant, said order and acceptance being as follows: “Mr. R. T. Bingham: Sir, — Please to pay Hiram Bellows “ seventy-five dollars in cash and one hundred and twenty-five dol- “ lars in good saleable young cattle, by the first day of October “next.

Sawyer. It appeared that the deceased died intestate in June, 1852, leaving the appellee, his widow, and leaving no children; and that he was, at the time of his decease, a purser in the United States navy, in which capacity he had served for fifteen or twenty years previous to his death.

Sawyer, deceased, intestate. The intestate, George F. Sawyer, at the time of his decease, and for a period of about twenty years previous thereto, an officer, in active service, as purser in the United States navy, left a sword and sword-belt, and epaulets, which he wore during his life, in compliance with the laws of the United States and the regulations of the navy department, also a watch and watch-key, gold watch-chain, seals, with a black cord watch-chain to which was…

<p> Lands bounded on lakes and creeks. </p> <p>Lands bounded on Lake Champlain extend to the edge of the water at low water mark. The same rule applied, in this case, to lands near the lake bounded on a creek emptying into, and the waters of which ordinarily maintain the same level, and rise and fall with those of the lake; there being no claim made that the boundary should extend to the centre of the cr$ek.</p>

<p> Dependent covenant. Assumpsit. </p> <p>The plaintiff covenanted to deliver to the defendant certain quantities of coal before certain specified dates, and the defendant covenamed to pay the plaintiff “for the above named coal” a specified price, “to be paid the first of each month, for all delivered.” Held, that the defendant's covenant was dependent, and only bound him to pay, at any particular time, for the amount of coal delivered, if all had been then delivered which was required by the plaintiff’s covenant.</p> <p>The plaintiff’s testimony tended to prove that after a delivery of a less quantity <^f coal than the contract required, he informed the defendant that he could not fulfill, and if the defendant intended to take advantage of it he should not deliver any more, and that he should deliver no more unless the plaintiff js3>&* for it irrespective of the contract; and that thereupon the defendant said that he wanted the plaintiff to deliver the coal, and that lie would not take any advantage, hut would pay for the coal delivered. Heldt that this testimony, if believed, would entitle the plaintiff to recover in assumpsit for the coal then and thereafter delivered, without any reference to the quantity stipulated for.</p>

Action on the case. The declaration alleged that the defendants were engaged in the business of towing boats on Lake Champlain; and the plaintiffs in running canal boats to and from Vergennes and Troy, for the purpose of forwarding, transporting, and freighting goods, &c.; and that by a contract between them, the defendants became obligated, carefully, skillfully and prudently, to tow the plaintiffs’ boats, with their contents, on Lake Champlain, between Whitehall and Fort…

Trespass for taking certain articles of household furniture which belonged to the estate of John S. Larrabee, deceased.

Trespass, for taking a pair of oxen and seven cows. The defendant justified the taking as collector of a school district.

It was admitted that the legal settlement of the pauper was in the town of Middlebury unless his father, under whom such a settlement was claimed, was warned to depart that town in the year 1813. To prove such a warning, the town of Middlebury introduced an original book of records of said town, wherein was recorded the warning relied on.

Assumpsit. The declaration contained a special count upon the town order, hereafter described, and the general counts for money, work and labor, materials, &c. Plea, the general issue; trial by jury, March Term, 1855, — Pieepoint, J., presiding.

TrovRr for the conversion of a quantity of logs. Plea, the general issue; trial by jury, March Term, 1855, — Pierpoint, J., presiding. The taking of the property was admitted; and it was admitted that the defendant, as sheriff of Rutland county, took them upon writs of attachment against George and Gardner Griffith, as their property, and that the same were regularly disposed of upon executions subsequently obtained against ,said Griffiths.

Action on the case to recover the amonnt tlie plaintiffs had, been compelled to pay on a 'judgment recovered against them by one Willis Phelps, for an injury sustained by him in consequence of the insufficiency of a highway in the town of Pawlet, and the expenses incurred by the plaintiffs in defending said Phelps’ suit; ■which insufficiency of the highway tlie plaintiffs alleged was occasioned by the defendants placing and piling in said highway, divers rocks and stones to…

Action on the case. The declaration set forth the construction, by the Rutland & Washington Railroad Company, of their railroad, and a lease of the same to the defendant; his acceptance of the lease, taking possession of the road, and running cars and engines regularly over the same, and that he thereby became and was liable for all damages which should be done by him, his agents, or the engines running upon said road, through want of cattle guards at the farm crossings of…

Debt on a-jail bond. The defendant demurred to the plaintiffs’ declaration. The county court, March Term, 1855, — Pierpoint, J., presiding, — overruled the demurrer, and held the declaration sufficient, to which the defendant excepted. The alleged defect in the demurrer sufficiently appears in the opinion of the court.

Assumpsit. The defendants plead the general issue, with notice that they should give in evidence the following special matter, viz : that after the commencement of the suit, and before its entry in the county court, a judgment was rendered by a justice of the peace, in favor of the plaintiff, with his consent, by the confession of the defendants, for the amount of the plaintiff’s claim, and the costs then accrued.

Assumpsit upon a promissory note. Plea, the general issue; trial by jury, March Term, 1855, — Peck, J., presiding. The plaintiffs produced and gave in evidence the note declared upon, the execution of which was admitted. It appeared that Buck was principal in the note, and Warren, the other defendant, a surety only.

Assumpsit against the defendant as an endorser of a bill of exchange, drawn by the Rutland & Washington Railroad Company, by George W. Strong, president, upon, and accepted by the treasurer of that company, dated at the office of the R. & W. R. Co., West Poultney, and made payable to the order of Eastman & Page, at the American Exchange Bank, New York, endorsed by Eastman & Page, John Bradley, George W. Strong, J. W. Baldwin, and M. Clark.

<p>Assumpsit upon a hill of exchange against the defendant as endorser. Plea, the general issue; trial by the court, September Term, 1855, — Pierpoint, J., presiding.</p> <p>The plaintiff introduced the hill of exchange counted upon, with the notarial certificate of protest, together with a writing signed by "the defendant, of which the following is -a copy, viz:</p> <p>“ Commercial Bank OE Albany v. M. Clark. Rutland “ County Court, Sept. Term. June 6, 1855. I, Merritt Clark, de- “ fendaiit in the above entitled cause, acknowledge and say that I “ had legal and due notice by mail of the protest of non-payment “ of the bill of exchange or draft described in the above entitled “ cause, and on which I am an endorser, with other endorsers on “ same bill.”</p> <p>It appeared that the foregoing admission of the defendant was drawn up by the attorney for the plaintiff, and enclosed io the defendant in a letter, of which the following is a copy,</p> <p>“M. Clark, Esq.: Dear Sir: — If the enclosed admission is “ signed by you, it will save cost and trouble of taking testimony “ in N. Y., to prove notice. If declined, I am going to N. Y. last “ of next week, and shall issue notice of the time and place, &c., “ of taking the deposition, to prove notice to you 'as endorser. * * “ Respectfully yours.”</p> <p>and that, in answer to said letter, the admission was returned, signed by the defendant.</p> <p>The defendant offered testimony to show that said writing was signed by him under a misapprehension of the facts, and that, at the time he signed it, he had in his mind a different draft from that described in the writ, and that no notice of the protest or non-payment was ever sent to or received by him; and offered to accompany this with proof that immediately upon discovering his mistake, he informed the plaintiff’s attorney thereof, both by letter and verbally, and that he should not abide by the concession or admission, and that he withdrew it.</p> <p>To this testimony the plaintiff objected, on the ground that, whether true or not, the defendant was concluded by his wfitten concession, and could not thereafter show the fact to be different. This objection was sustained by the court, and the testimony excluded. Judgment for the plaintiffs. Exceptions by the defendant.</p>

Assumpsit brought into the county court by an appeal from the judgment of a justice of the peace. The declaration contained only the common counts, and demanded in damages the sum of one hundred dollars. Plea, the general issue; trial by the court, September Term, 1855, — Pierpoint, J., presiding.

Ejectment. The plaintiffs claimed title to the premises in question, as owners of the reversion of that portion of the dower set out to Mary Wood, the widow of Elijah Wood, which were described in the report of the commissioners as follows, “ also three rows of apple trees on the west side of the orchard, running north and south in the centre between the third and fourth rows,” the said Mary Wood having deceased.

<p>Book Account. The plaintiff claimed to recover, among other things, the amount of the notes specified in a receipt executed by the defendant, of which the following is a copy.</p> <p>“ Eeceived of Beuben Marks, five notes against the following “ persons, — two against Ira Marks, $ 25.40 and $ 4.75 ; one against “Wesley Nelson, $ G4.G6, also one againgt Thraderr Stevens, of “ $ 22.00, also one against Ira Gibbs, not payable to the bearer, “ of $ 20.00, dated March 2, 1853, the same to hold or collect as “security, for John J. Woodward’s account, due to J. R. Harlow, “ the same above notes have the interest reckoned up to Sept. 12th, “ 1853. The said J. E. Harlow is to hold the above botes or mon- “ ey until the said J. J. Woodward’s account is settled, and then he “is to account io said Woodward for them after cost of suit now “ ¡lending is paid.” And in reference to which the auditor reported the following facts.</p> <p>In September, 1853, the plaintiff, Woodward, was dangerously sick and bereft of reason, and while in that situation the defendant, Harlow, instituted a suit for the collection of what Woodward might be indebted to him, and on that suit Woodward’s property was attached, and Reuben Marks, who was then a partner in business with Woodward, judging it best for Woodward to have his property released from the attachment, without any authority or right so to do,, let said Harlow have the notes which were the exclusive property of Woodward, and the same were taken by said Harlow,precisely as said receipt imports. At the time of the delivery of of the notes, Woodward was not, in point of fact, in any way indebted to Harlow. Harlow supposed Woodward was indebted to him, and commenced said suit in entire good faitb, and tbe attachment was released in faitb of said notes as security.</p> <p>In tbe fall of 1853, Woodward having regained a measure of health, and bis mental faculties being restored, learned what bad been done respecting said notes, and disapproving thereof, demanded of Harlow to deliver back said notes and to settle on account of them. Harlow declined to deliver back tbe notes, or to -settle except according to the terms of the receipt. Woodward never waived any wrong or tort respecting said note transaction, unless ■the demand, or tbe claiming an account before the auditor amounted to such waiver.</p> <p>Harlow bad received payment on tbe note against Nelson, and on tbe one against Stevens. Tbe other three notes were not paid, but it was conceded by both parties that they were good and collectable.</p> <p>The auditor reported tbe amount collected or due on each note's and tbe county court, September Term, 1855, — Pierfoint, J., presiding,- — rendered judgment upon the report in favor of tbe plaintiff, allowing tbe amount collected on tbe two notes, but disallowing the three notes not collected. To this disallowance the plaintiff excepted.</p> <p>Tbe action of book account has been much extended by tbe supreme court of this state; Stone v. Pulsipher, 16 Yt. 429.</p> <p>These notes should be made to apply in payment of tbe defendant’s side of tbe account. They were received by the defendant for that purpose, and be refused to deliver them up, or settle for them in any other way.</p> <p>Defendant by his conduct and contract, made these notes a matter of account between him and plaintiff. Notes are recoverable on account.; Smith v. Woods, 3 Yt. 485 ; 4 Yt. 400; and therefore in book account; statute 1852, page 9.</p> <p>The claiming these notes on trial before tbe auditor, is a waiver <©f tbe tort, if any tort existed, and was a ratification of tbe proceedings between Marks and the defendant, as set forth in the receipt.</p> <p>1. The plaintiff can only hold the defendant to an accounting for the notes, by adopting the contract with Marks. This he has always repudiated. His bringing the present action is no affirmance. It is founded on other claims; and is, at most, a mere waiver of the tort; Hunter v. Prinsep, 10 East. 378.</p> <p>2. If he adopts the contract, he must adopt the whole; and is not entitled to call the defendant to an account under it, until he has paid the costs of the former suit; Dunlaps’ Raley on Agency, 172; Benedict v. Smith, 10 Paige. 127; Smith v. Hodson, 4 TR. 21L</p> <p>3. In an action on book, the plaintiff cannot recover for the notes themselves, which were tortiously taken. He can only have what the defendant has collected upon them; Peach v. Mills, 14' Vt. 37l; McCrillisY. Banks, 19 Vt. 442; Centre Turnpike Co. v. Smith, 12 Vt. 212; Scott v. Lance, 21 Vt. 507; Winchell v. Hoges, 23 Vt. 303.</p> <p>4. The county court have, in effect, decided that the defendant has not received the money on thenotes, and their decision is not open to revision.</p>

Debt on an award. Plea, nil debet; trial by the court, September Term, 1855, — Pierpoint, J., presiding.

Debt on a decree of the court of chancery. The declaration counted only upon the ordering or adjudging part of the decree. The defendant plead that the plaintiff ought not to have or maintain his said action, “because the said decree in the plaintiffs’ declaration mentioned was as follows,” and then proceeded to set forth the entire decree, including the stating or introductory part of it. To this plea the plaintiffs demurred.

<p> Statute of frauds. Consideration of deed. Evidence. </p> <p>A parol promise to pay the debt of another in consideration of property placed b^ the debtor in the promisor’s hands, is not within the statute of frauds. It is an original promise, and binding upon the promisor; and, in this respect, it is immaterial whether the liability of the original debtor continues or is discharged.</p> <p>jChe testator in consideration of the conveyance of a farm to him, upon which the plaintiff, at the request of the testator’s grantor, had erected a barn, promised to pay the plaintiff the cost of said barn, Held that this promise, being made upon a new consideration, was binding, though it was not in writing, and though the original liability of the grantor remained undischarged.</p> <p>(phe grantor’s deed to the testator was for the expressed consideration of $ 3.000$ and the testator gave to the grantor a bond and mortgage, providing for his support, and the payment of specified sums to his daughters. Held that though thfe bond might be the only evidence as to the extent of any personal claim in favor of the grantor, yet that it would not prevent the plaintiff from showing the existence of an additional and suppletory agreement by parol, in his own favor, as entering into and constituting a part of the consideration expressed in the deed.</p>

Trial by the court, September Term, 1855, — Pierpoint, J., presiding. The appellants were creditors of the estate of the said Powers. The debt of Henry Simonds, one of the appellants, was contracted prior to the first of December, 1850. The claim of S. D. Winslow consisted of a book account, a part of which was contracted prior to the first of December, 1850, and a part subsequent to that date.

<p>Petition eor a new trial, the ground of the application being that one of the jurors had formed and expressed an opinion respecting the case previous to the trial. The suit in which the trial was had was an action of assumpsit in favor of the petitionee,, against the petitioner, counting upon a promissory note. At the time of empanelling the jury, the juror in question was inquired of whether he had formed and exjiressed an opinion, respecting the cause, and replied that he had not. Upon the trial, after the plaintiff had introduced his note, the defendant, (the present petitioner,) introduced a receipt of a subsequent date apparently cutting off the note. Testimony was then introduced by the plaintiff, tending to prove that the receipt and note were executed at the same time, and the note given upon a settlement, and was justly due ; and by the de-, fendant tending to show that the note was not justly due, and that the receipt was expressly designed to cut off the note. The jury re-, turned a verdict for the plaintiff.</p> <p>A witness, whose affidavit accompanied the petition, testified that he had several conversations with the juror, prior to the trial, respecting the merits of the suit, in which the juror expressed his opinion freely in the case, which was that the plaintiff therein ought to recover, &c. After the service of the petition the deposition of the same witness was taken in behalf of the petitionee, in which he stated that both the juror and himself, at the time of the conversation, were under the impression that the receipt and note both bore the same date ,• and that he could not swear that the jur- or stated to him any opinion in relation to the case, except that a receipt bearing the same date would not cut off a note, and if that was Lincoln’s case he ought to recover; and that if any other-opinion was expressed, it had escaped his recollection.</p>

Assumpsit for the price of a pew. Plea, the general issue ; trial by the court, March Term, 1855, — Pierpoint, J., presiding. In August, 1852, the plaintiff Julia Hodges, was the owner of a slip in the Baptist meeting-house in Rutland. The Baptist society, about that time, resolved to repair and remodel their meetinghouse, and appointed the defendant to purchase the slips of such persons as were not members of said society.

Ejectment, tried by jury, upon the general issue, September Term, 1855, — Pierpoint, J., presiding.

Assumpsit. The cause was referred. The principal claim of the plaintiff was for $ 465.84, in reference to which the referees reported the following facts. About sixteen years prior to 1858, the plaintiff and defendant entered into an agreement, by which the plaintiff was to take the charge of the defendant’s grist-mill, as the miller, and receive one-half of the proceeds or tolls, and the defendant the other half.

Action on the case, tried at the June Term, 1855, — Pier-point, J., presiding.

Book Account. The auditor reported a balance in favor of the plaintiff, dependent, as to its amount, upon the opinion of the court upon the following facts.

Appeal prom the court op chancery. A statement of tbe facts, the object of the bill, and the decree of the court of chancery, will be found in the opinion of the supreme court, which after argument by

Assumpsit for $4,000, being two hundred double eagles, left with the defendant, as an inn-keeper.

Book Account. The auditor reported the following facts. The plaintiff failed, and on the 6th of April, 1852, assigned, for a valuable consideration, all his book accounts, among which was an account against the defendant, to Joel Volentine. At the time of said assignment there was due from the defendant to the plaintiff the sum of ninety-seven dollars and eighty-two cents, to balance book accounts between them.

Trespass On the ereehoed, for cutting wood on lot No. 17* 6th division, in Pownal. Plea, the general issue; trial by jury, December Term, 1855, — Pierpoint, J., presiding. The question litigated was in reference to the ownership of lot No. 17, both parties claiming it, and neither showing a sufficient paper title to it.

Scibe eacias against the defendant, as hail for Michael Fallon, The declaration averred that the plaintiff, on the 16th of June, 1851, took out his writ of attachment against Michael Healey and Michael Fallon, both of the state of New York, in an action of book account, and delivered the same to John J. Crandall to. serve, &c.,- — and that he served said writ, by arresting the body qf said Fallon, and that the defendant became bail and surety for the said Fallon, &c., — that…

Book account. 'The nature of the disputed items in the plaintiff’s account, sufficiently appear in the auditor’s report, which was as follows. “ I find and report, that there is due from the defendants to the plaintiff, to balance book accounts between them, the sum of $ 893.55, — subject to the opinion of the court upon the following statement of facts.” “ The defendants are a corporation, chartered by the legislature of Massachusetts on the 15th day of March, 1844.

<p>Assumpsit for the,use and occupation by tlie defendant of a dwelling-house of the plaintiff’s. The action was referred, ánd the referee reported, after setting forth a specification of the plaintiff’s Claims, and of the payments made to him, as follows:</p> <p>“November 27th, 1849, the defendant went into occupation, of the plaintiff’s dwelling-house, situated in Brattlehoro village, under an agreement to pay an annual rent therefor of $150, and continued such occupation till November 10th, 1852; a week or two before quitting, he sent word to the plaintiff that he was about doing so, who then replied to the messenger that he must pay rent till April, 1,1853. I do not find that anything was agreed between the parties as to the length of the tenancy, or in what manner it might terminate.</p> <p>“ The plaintiff offered testimony tending to prove that the custom in Brattlehoro is for yearly tenancies of dwelling-houses, to commence on the first of April. This testimony was objected to by the defendant, and was admitted, and I find the fact in accordance with it; and also that it is very unusual to let houses in the fall, and very difficult to do so. After the defendant left the house the plaintiff was unable to let it again, though effort was made until April, 1853. The said custom was known to the defendant as well as to the plaintiff. ********</p> <p>“At the time of the service of the writ in this case, the amount due to the plaintiff, provided everything were allowed him which he claimed, was $92.90,' — that is, that was the largest sum which the plaintiff could hope to recover, were every point of fact and law made by him, decided jn his favor; and thus it appeared from his own books.</p> <p>“ If the plaintiff be entitled to recover rent for the time "only, wherein the defendant actually occupied the premises, I find due the plaintiff, April 1, 1853, $26.66. If he be entitled to recover rent up to the 27th November, 1852, the time when the even years reckoning from the commencement of the occupation would be out, I find due to him, April 1, 1853, $34.15. If he be entitled to recover rent until April 1, 1853, I find due to him $87.90 ; interest to be added to whichever of the above sums shall be taken by the court as the damages in this case, from April 1, 1853, to April 1, 1855.”</p> <p>In the connty court, April Term, 1855, — Underwood, J, presiding, — the defendant moved to dismiss the action for want of jnrisdiction. The court overruled the motion, and rendered judgment, on the report, for the largest sum reported in favor, of the plaintiff. Exceptions by the defendant.</p>

Trespass, for taking certain oxen, farming utensils and crops. Plea, the general issue; and also that the defendant, as deputy sheriff, took the property by virtue of a writ of attachment in favor of Townsley & Son against the plaintiff, and sold the same on the attachment, under the statute. Replication, that the property attached was held by the plaintiff in trust for his wife Nancy Barber, and his children ffm.

Hathorn, from the town of Londonderry to the town of Andover. Held: that a man’s family residing with him, whether of age or not, had his settlement. 12 Eichard H., chap. 7, enacted that the poor were to repair, in order to be maintained, to the place where they were born. By 11 Henry VH, chap. 2, they were to repair to the place where they last dwelled, or were best known, or were born.

Trover for a quantity of iron. Plea, tbe general issue; trial by jury, April Term, 1855, — Underwood, J., presiding.

<p>Audita Querela. The complaint alleged that the defendant sued out his writ of attachment against the complainant, returnable before a justice, which was duly served ; that the complainant was taken sick, and was unable to attend the trial before the justice on the return day of said writ; that he appeared by his wife before said justice at the time when said writ was made returnable, and notified the defendant and the justice of the sickness of the complainant, and requested that said trial might be adjourned to a then future time, to enable him to appear and make his defense ; blit that the defendant, with fraudulent intent, and designing to impose upon said justice, then and there represented that the complainant was not sick, but was well and in the enjoyment of. good health; whereupon the justice refused to hear affidavits offered as to his sickness, and rendered judgment for the said Aiken. Plea, the general issue; trial by jury, April Term, 1855, — Underwood, J., presiding.</p> <p>It was admitted that the' complainant was sick, and unable to attend before the justice at the time of the trial, and that his wife then appeared, and that she notified the defendant and justice of the sickness of the complainant, and offered to make oath to the same ; that the defendant and his counsel insisted before the justice that the complainant was not sick, and that the representations of his sickness were made for the purpose of procuring a continuance. It was further admitted that the complainant’s wife offered to pay the costs incurred on the return day of the writ, and the costs of a continuance.</p> <p>The complainant offered no other evidence, whereupon the court decided that the evidence was not sufficient to maintain this action, and directed a verdict to be returned for the defendant. Excep* tions by the complainant.</p>

Account. The declaration charged the defendant as bailiff of a certain farm of the plaintiff, and of nineteen cows, and nine and a half tons of hay upon the same.

Debt on an award. The bond of submission, in pursuance of which the award was made, required the defendants to observe and perform the award which the arbitrators named should “ make and publish of or in the premises, in writing, under their hands and seals, on or before the first day of September, 1853.” The defendants plead a revocation on the 30th August, 1853. The plaintiffs •replied an award and publication of the same on the 26th August, 1853, which was traversed.

Ejectment to recover the seizin and possession of a small tract of land, about an acre, situate in Putney. Plea, the general issue; trial by jury, September Term, 1855, — Underwood, J., presiding.

Assumpsit, the declaration being as follows, with the addition of the common counts. “ In a plea of the case, for that the defendant, at said Halifax, on the 5th day of January, A. D. 1850, in consideration that the plaintiff would furnish him, the defendant, palmleaf, to wit, seven hundred and fifty-six pounds, at said Halifax, he, the defendant, undertook and promised the plaintiff to get 'the said palmleaf worked into hats as soon as he, the defendant, should have worked…

Action on t^:e casé for the obstruction of the plaintiff’s water-wheel by the tan-bark discharged at the defendants’ tannery on the stream above, and suffered to float down to the plaintiff’s mill. The action was referred, and the referee reported the following facts.

The bill charged that the defendant Bennett, having been in trade at Rockingham, and being in failing circumstances, made an assignment to the defendants Olcott and Davis, February 28, 1842, of all his property, consisting of a lot of land with a house, store and barn upon it, a store of goods and other articles of personal property, and all his choses in action, to pay, firstly, Francis Bennett, Lewis M. Olcott, Aramitta Wright, Elvira Henry, Thomas Dixon, Elias Olcott,…

The defendants, with the exception of the Rutland and Burlington Railroad Company, were set up as residents of Massachusetts, and service was made upon Henshaw and Thatcher, by leaving a copy with Dugald Stewart, as their appointed and authorized agent, at Rutland in this states and upon Lee, by leaving a copy with him at Roxbury, Mass.

Action on the case. The declaration set forth the commencement, on or about the 6th of September, 1853, of a suit by the defendants against the plaintiff, returnable before Prescott Heald, Esq., a justice of the peace, on the 12th of said September; a trial by jury before said justice on the 12th, and subsequently by adjournment on the 26th of September; upon both which trials the jurors failed to agree and were discharged; a further continuance of said suit to the 28th of…

Assumpsit for mciney liad and received. The action was originally commenced before a justice of the peace, and came to the county court by appeal.

Book account. The auditor reported the following facts. Previous to the 26th of March, 1852, the firm of Morgan, McCaine & Co. consisted of the plaintiffs Morgan and the two McCaines. At that date the plaintiff Brown became a member of the firm by purchasing one-fourth of their property, debts and dues, (the name of the firm remaining unchanged,) and continued a member till the 23d of February, 1853.

Assumpsit upon a promissory note, dated Marcli 12, 1845, for $ 385.78, payable on demand, signed, “ For the Ludlow Woolen Mill, George S. Coffin, agent.” The defendants were described in the writ as “ formerly co-partners in the manufacturing business at Ludlow, under the firm and style oí the Ludlow Woolen Milll.” Plea, the general issue, and the statute of limitations; trial by the court, by agreemnt of the parties, May Term, 1855, — Underwood, J., presiding.

Indictbient for a violation of tbe statute of 1852, entitled “an act to prevent traffic in intoxicating liquors for the purpose of drinking.” Plea, not guilty; tried at the May Term, 1855, — ■ Underwood, J., presiding. Evidence was introduced on the part of the prosecution tending to prove that the respondent, in September, 1854, sold a cask of brandy to one John P. Williams, at White River Junction.

Indictment, in three counts, for rape and incest. Elea, not guilty; trial by jury, May Term, 1855, — Underwood, J., presiding. The state’s attorney called, as a witness, Sarah E. Johnson, named in the indictment, and alleged to be the daughter of the respondent, whose testimony tended to prove the allegations in the indictment, and that the respondent had had sexual connection with her at three several times, and that she had been delivered of a child in consequence thereof.

Action on the case for deceit in the exchange of a horse. The action was referred, and the referee reported as follows. “ The defendant, in the fall of 1850, purchased of one Parker Bryant, a gelding horse which was diseased, and the said Bryant, at the time the defendant purchased the horse, told him, upon his inquiring what ailed the horse, that some said he had got the horse-distemper, and some said it was the glanders, hut that he, Bryant, did not know what ailed him. “…

Trover for fifty sheep, originally commenced before a justice and brought into the county court by appeal. Plea, the general issue; trial by jury, May Term, 1855, — Underwood, J., presiding.

Assumpsit, upon a submission and award; and upon the general counts. Plea, the general issue, and the.statute of limitations; trial by jury, May Term, 1855, — Underwood, J., presiding, The plaintiff offered in evidence a submission, signed by the plaintiff and the defendant, which was as follows, viz. “ Solomon Downer v. John L. Bowman and Philander C. Brown. Windsor County Court, March Term, 1846. Action of ejectment.

Ejectment to recover the possession of certain lands in Andover. Plea, the general issue; trial by jury, May Term, 1855,— Underwood, J., presiding. The premises in question were owned by John Adams, who was indebted to the plaintiff upon a promissory note given previous to the 1st of December, 1850. They cpnstituted his homestead, and consisted of the house which he and his wife occupied in February, 1851, and of the land adjoining.

Ejectment for a piece of land in Barnard. Plea,' the general issue; trial by jury, May Term, 1855, — Underwood, J., presiding. Held: “ that they would not suffer a recording officer to impeach his record in a particular instance.” The evidence as to the time at which the copy of the attachment was actually left with the town clerk, and from which he made a record, and the time at which said record was actually made, was properly received.

Willey, Ob-era, his wife, and five children, from the town of Chester to ,the town of Wheelock, which was made on the 8th of February, 1853. Plea, that the paupers were unduly removed, because their last legal settlement was not in Wheelock; trial by jury, May Term, 1855, — Underwood, J., presiding.

The nature of the action, the question presented, and the facts in reference thereto, sufficiently appear in the opinion of the court. The cause was tried by the county court, at the May Term, 1855, — Underwood, J., presiding, — and judgment rendered in favor of the plaintiff. Exceptions by the defendant.

Trustee Process. The trustee, among other things, disclosed that on the 18th of April, 1853, he purchased a farm of the principal defendant, towards the consideration of which he executed and delivered to the principal defendant his note for $215.

Book Account. The disputed item in the plaintiff’s account was for “ casli to repair buildings as per H. S. Wheaton’s (president,) accountable receipt, April 3d, 1848, — $ 50,” in reference to which the auditor reported as follows. “ In the year 1848, Henry S. Wheaton was president of the Norwich University. After his election an effort was made to raise money by subscription to repair the college buildings.

Book Account. The plaintiff’s account was for services as a physician, which the auditor allowed as charged.

<p>Scire eacias. The declaration, which is set forth below, did not contain, when originally drawn and entered in the county court, that part of it which is enclosed in brackets. The plaintiff obtained leave to amend, and did amend the declaration by inserting that part of it, and when so amended, the defendant moved to dismiss it for the reason that it then described a new cause of action. This motion was overruled, and the defendant then demurred to the declaration, as amended. The county court, December Term, 1855, — Underwood, J., presiding, — overruled the demurrer, and rendered judgment for the plaintiff. To the decision of the court overruling both the motion to dismiss and the demurrer, the defendant excepted.</p> <p>The declaration, as amended, was as follows, that part added by the amendment being enclosed in brackets.</p> <p>“ Whereas Chester Baxter, of Sharon, in the county of Windsor and state of Vermont, by the consideration of the county court, held at Woodstock, in and for the county of Windsor, on the fourth Tuesday in September, in the year of our Lord one thousand eight hundred and thirty-eight, recovered judgment against Abiathar Shaw, then of Westmoreland, in the state of New Hampshire, for the sum of thirteen hundred and fifty-nine dollars and sixty-two cents damages, and twenty-five dollars and fifty-eight cents costs of said suit, as appears of record; and although judgment thereof be rendered, as aforesaid, [and the said Baxter within thirty days after the rendition of the aforesaid judgment, to wit, on the 29th day of September, 1838, took out his execution thereon, and placed it in the hands of F. Page, constable of the town of Sharon, in said Windsor county, who, on the 26th day of October, 1838, levied and extended said execution on the following named machinery in a factory, to wit, 3 casmer looms, 1 satinet loom, 1 dresser loom, 1 condenser, 3 spools, 2 carding machines, 1 shaving machine, 1 brushing machine, 1 roller, 38 press plates, 2 jacks, 1 lot of bobbins, 6 joints stove-pipe, 32 shuttles, all the leather belts for factory, 1 iron mortar, 2 oil canisters, 1 netty, 1 loom, amounting in the whole to the sum of eleven hundred and forty dollars and seven cents, which the said Page, constable as aforesaid, applied upon said execution, in part satisfaction of the same, supposing the same to be tire property of said Shaw, but it afterwards proved to be the property of one Elisha L. Sabin, and in the year 1837 was attached by A. F. Bean, on a writ in his favor against said Sabin. After said attachment, said Sabin sold said machinery to said Shaw, and after said Bean’s attachment, and said sale to Shaw, the plaintiff levied upon, and caused said property to be sold, as the property of said Shaw, upon his aforesaid execution, without knowing of said Bean’s attachment. Said Bean’s suit, upon which said property was attached, as aforesaid, was pending in court, at the date of the plaintiff’s sale of said property, but subsequent to said last named sale, on the plaintiff’s aforesaid execution. Said Bean recovered judgment in his aforesaid suit, against said Sabin, and caused all of the aforesaid property to be sold in' due form of law, in satisfaction of an execution issued upon said last named judgment, in favor of said Bean against said Sabin, and the said' Bean took all of said property out of the plaintiff’s possession, and the plaintiff entirely lost said property, and the proceeds thereof.] Yet the execution of the said debt and costs yet remains to be made, whereof the said Baxter has made application for a remedy to be provided in that behalf. How to the end that justice be done,” &c.</p> <p>The count is bad under the order to amend, as not following the original declaration, but being, in fact, for a new cause of action, not embraced within,' nor contemplated by the original declaration. It is a departure.</p> <p>The original writ was scire facias, at common law, to obtain a new execution. The writ, as amended, is scire facias, under the statute, to vacate the levy of an execution.</p> <p>Scire facias would not lie at common law, to obtain this remedy; and the writ of scire facias, which is given by statute for this purpose, is a new and independent proceeding. Baxter v. Tucker, 1 D. Ch. 355. Boyce v. Strong, 11 Yt. 249. Hyde v. Taylor, 19 Yt. 601. Pratt v. Tones, 22 Yt. 345. Tudor v. Taylor, 26 Yt. 448.</p> <p>The writ in the form in which it is presented cannot be sustained.</p> <p>It is scire facias to vacate the levy of an execution, which has been satisfied by being extended upon property, which was subject to a prior attachment.</p> <p>At common law, scire facias would not lie in this case. See the cases cited above.</p> <p>By the levy and sale of the personal property, the judgment is satisfied pro tanto, even though the title be afterwards divested. 1 Salk. 322. 2 Ld. Raym. 1072. 1 Cow. 47, n. 4 Cow. 417. 7 Johns. 428. 12 Johns. 207. People v. Hopson, 1 Denio 574. Freeman v. Galdwell, 10 Watts 9. Ladd v. Blunt, 4 Mass. 402. Bayley v. French, 2 Pick. 590. Lea v. Bdioards, 1 B. & Aid. 157. Chandler v. Forbush, 8 Maine 4.08.</p> <p>The statute of 1797, (Slade’s Stat. 213, § 9,) extended only to a case, where it appeared, after levy upon real or personal estate, that the property “ did not belong” to the debtor.</p> <p>Under that statute this suit could not have been maintained; for here the declaration concedes, that Sabin owned the property, and sold it to the defendant.</p> <p>The statute of 1850 (Comp. Stat. 315, § 46,) re-enacted the statute of 1797, and extended it to cases where the property levied upon was, at the time, subject to mortgage, which was disregarded in making the levy.</p> <p>But that is not this case. An attachment is not a mortgage, and “ expressio unius exclusio alterius est.” A mortgage passes the title ; an attachment does not. A subsequent mortgagee must be made a defendant in a bill to foreclose a prior mortgage ; but an attaching creditor, who has not obtained a judgment, need not and ought not to' be made a defendant. Downer v. Fox, 20 Yt.' 388. The law stands, in respect to property levied upon while subject to attachment, precisely as it stood in respect to mortgaged property, previous to the statute of 1850, and, in respect to property which did not belong to the debtor, previous to the statute of 1797. It is casus omissus, beyond the reach of the court, and subject only to legislative correction.</p> <p>The declaration is fatally defective in omitting to allege that Bean kept good his title, created by the attachment, by causing the property to be charged in execution, within thirty days after his judgment.</p> <p>The creditor who seeks a new execution, upon the ground of defect of title in the debtor to the estate levied upon, must show, by positive evidence, that such defect existed; Pratt v. Jones, 22 Yt. 345 ; and what he is thus bound to prove, he must allege in his writ; Baxters. Tucker, 1 D. Ch. 356.</p> <p>The first question is, should the motion to dismiss have prevailed ?</p> <p>This depends altogether upon the question whether the county-court had power to allow the amendment. If they had, its exercise is not a matter of error. Waterman v. Hall, 17 Yt. 128.</p> <p>The original declaration was scire facias. The amended one is scire facias.</p> <p>This question must be conclusively settled by the case of Briggs v. Oaks, 26 Yt. 138, and the case of Briggs v. Bennett et al. 26 Yt. 146..</p> <p>The demurrer was properly overruled.</p> <p>The matter set up in the declaration, is sufficient to bring the the case within the statute, (Comp. Stat. 315, § 46.) Clearly “ the property was not the property of the debtor.”</p> <p>The whole was taken, sold and applied upon Bean’s execution by virtue of the attachment.</p> <p>It comes, if not within the letter, certainly within the spirit, and clear intent of the statute.</p>

<p>Assumpsit to recover for services rendered in. teaching school for the defendants, and damages for not being permitted to teach for the time contracted for. Plea, the general issue; trial by jury, December Term, 1855,- — -Underwood, J., presiding.</p> <p>The plaintiff, to support the issue on his part, gave evidence tending to show that, in the fall of 1853, Erastus Woodward, prudential committee of the defendant district, made a contract with the plaintiff to teach the defendants’ school three and a half months, the then ensuing winter, at $18 per month; that the plaintiff commenced the school the 21st day of November, 1853, and continued the same about seven weeks, when, without fault on his part, and without cause, said Woodward dismissed him.</p> <p>The defendant, for the purpose of showing good cause for the dismissal, offered to prove, among other things, that the plaintiff’s scholars were disaffected with the plaintiff’s school, and threatened to leave it; that on the day the plaintiff was dismissed, there was an informal meeting of the inhabitants and most of the legal voters of the district, said Woodward being present, and that said meeting unanimously voted that the plaintiff should be dismissed from the school; to which the plaintiff objected, and the court excluded the same.</p> <p>The defendants called one Alexander as a witness, whose son attended the plaintiff’s school two or three days, when witness permitted his son to leave the school, on his son’s complaining about it, and witness refused to Woodward to have his son go back; and the defendants proposed to show, by the witness, the reasons why he would not let his son go back to the plaintiff’s school; to this the plaintiff objected, the defendants not proposing to show that the plaintiff was present, or that the witness’ reasons were derived from any knowledge of the plaintiff’s conduct, and the court excluded it.</p> <p>The defendants further offered to prove, by said "Woodward, that theretofore, in previous years, the school in said district had been good, and that the scolars behaved well. To this the plaintiff objected, and the court excluded it.</p> <p>The defendants’ testimony tended 'to show that the plaintiff, in managing his school, was cross, crusty and severe in his manner, that he punished the scholars excessively, and neglected the recitations of some of his pupils; that the plaintiff was ill-natured, morose and coarse in his language and manners. The plaintiff put in evidence tending to contradict this.</p> <p>It appeared that on the morning of the 21st of November, before the plaintiff commenced his school, the plaintiff and his brother went to the superintendent to be examined, that the superintendent examined the plaintiff’s brother, and told the plaintiff to call in the evening and he would then examine him, and that it would be just as well for him; that the plaintiff did so, and was not examined till evening, when, on examination, the superintendent gave him the usual certificate.</p> <p>The plaintiff’s testimony tended to show that Woodward treated and recognized the plaintiff as the teacher of the school, after the plaintiff had obtained his certificate, but it did not appear that Woodward ever knew anything about the plaintiff’s having or not having a certificate at any time, or of his attempting to obtain one; and there was no evidence of any express new bargain between the plaintiff and said Woodward after the plaintiff obtained his certificate.</p> <p>The defendant requested the court to charge the jury that, as the plaintiff did not obtain his certificate until after he commenced his school, he could not recover. The plaintiff contended that the certificate obtained, under the circumstances, would relate back to the time of the contract, and entitle the plaintiff to recover from the beginning, and so requested the court to charge. The court refused so to'charge, but told the jury, among other things not excepted to, that the plaintiff could recover nothing for the first day’s teaching, but if they found that, after the plaintiff obtained his certificate, Woodward recognized the plaintiff as the teacher, and treated him as such, and as going on under the original contract, and that nothing else was said or done, and no new express- contract made, and no objection made to the plaintiff’s continuing the school, it might be regarded as a confirmation of the original contract, and the plaintiff regarded as having commenced his term, under the contract, on the 22d of November, and he be entitled to recover from that time, provided the jury found the plaintiff was dismissed without sufficient cause; and, to the instruction given to the jury on this point, no exception was taken. To the refusal of the court to charge as requested, both the plaintiff and defendants excepted, and to the exclusion of the testimony offered by them and rejected, the defendants excepted. Verdict for the plaintiff.</p>

<p> Information against a railroad company for neglect to ring bell fyc. </p> <p>In an Information against a railroad coinpany, a description of the respondent by name, and as “ a corporation existing under and by virtue of tlie laws of this state, duly organized and doing business,” is a sufficient allegation that it is a corporation in esse.</p> <p>The time and place, when and where their existence commenced, need not be averred.</p> <p>'The information (<7. v.) in the present case, against the respondents, (a railroad corporation) for unreasonably neglecting to ring a bell, or blow a steam whistle when crossing a public road with their engines, &c.; held sufficient.</p>

Petition eor a certiorari. From the petition and proceedings in the county court, referred to, it appeared that the selectmen of the town of Woodstock laid out a highway through a house lot, and certain buildings of the petitionee, adjacent to the court house and town hall in said Woodstock, from which he appealed to the comity court.

Information for a writ of quo warranto, charging the defendants with having usurped 'the office of directors of the Bank of White River, at Bethel, without any legal election, &c. A question was made,-(after the reading of the information, and rule nisi requiring the defendants to show cause why such a writ should not issue, and the defendants’ answer, upon oath, to the several charges in the information,) which party was entitled to the open and close, in the proof and the…

Indictment for a breach of the license law of 1852. Plea, not guilty; tripl by jury, May Term, 1855, — Underwood, J., presiding.

Ejectment for lands in Sharon. In the writ which was dated January 30th, 1852, the plaintiffs were described as “the society for the propagation of the Gospel in foreign parts, a corporation duly established in England, within the dominions of the Queen of the United Kingdom of Great Britain and Ireland, the members of which society are aliens, and subjects of said Queen.” Plea, not guilty; trial by jury, May Term, 1855, — Underwood J., presiding.

Book Account. The auditor reported substantially as follows. At the annual March meeting of the town of Windsor, in the year 1848, the defendant was chosen first selectman of said town, and took upon himself the duties of said office; and at said meeting, Joel S. Houghton was appointed highway surveyor for district No. 5, in said town. - In the latter part of May, 1848, the defendant went to Houghton with the tax bill and told him he was appointed surveyor for said district.

<p> Contingent claim. Appeal. Bond. </p> <p>Ho appeal lies from the report of the commissioners upon a deceased person’s estate that a contingent claim was presented. An appeal only lies from its allowance or disallowance.</p> <p>A creditor of an estate has the right of appealing from the allowance of a claim in fayor of another creditor when the administrator declines to do so. And sucji declinature would probably be inferred, if no claim of tbe administrator to prosecute the appeal in his own behalf should be interposed.</p> <p>Sufficiency and requirements of the bond to be given by the appealing creditor in such a case.</p>

Trover for five tons of hay. Plea, the general issue; trial by jury, June Term, 1855,-^Poland, J., presiding. Upon the trial the following facts were proved.

Ejectment for certain lands in the possession of the defendant Blanchard, as tenant of the defendant Downer. Held: and were still held. Subsequent to the giting of said mortgage to the plaintiffs, the said Tarbell gave to the defendant Downer a mortgage of the same premises, to secure the payment of certain notes which had become due and were unpaid; and after the breach of the condition of his mortgage, by the non-payment of said notes, and…

The orator alleged that in March, 1835, he bargained for a piece of land, for which he was to pay $900; $100 of which he paid down, and gave his notes for the remainder, payable at different times, which he paid as they became due; that when the bargain was completed, and the deed about to be drawn, his wife Lydia Wallace said to him, in a playful manner, that he had better have the land deeded to her; and that, upon the representation of the person of whom he purchased, and…

Debt upon an allowance of commissioners, in favor of the estate of Josiah W. Rogers, against the defendant, of which estate the plaintiff was administrator, made September 8th, 1843 for $186.12. The defendant plead the statute of limitations, to which the plaintiff replied a new promise, which was traversed by the defendant. Trial by the court, June Terry, 1855, — Poland, J., presiding.

<p>Appeal from the decision and report of the commissioners "upon the intestate’s estate. The plaintiff filed a declaration on book, and also upon certain notes. An auditor was appointed and, by agreement, all the claims upon either side were referred to his decision, and he reported the following facts in reference to the claims which were disputed.</p> <p>Under his declaration on book, the plaintiff claimed to recover the amount of several taxes assessed against the intestate.</p> <p>The plaintiff was constable and collector of taxes in the town of Tunbridge, (where both parties resided,) from 1828 to 1838, excepting the year 1832; and the taxes charged, Were legally assessed to the intestate, and he was liable to pay them'. They were never charged to him upon any account book by the plaintiff, and no other account of them was kept by the plaintiff than retaining them upon the tax-bills, without crossing or cancelling them as he did in case of payment. The plaintiff produced the original tax-bills, showing all the taxes charged for in his account, except items No, 1 to 4, inclusive. The deceased had an accruing account with the plaintiff during all the time covered by the plaintiff’s account, and it was understood by the parties that these taxes should be adjusted and settled with their other accounts, as matters of mutual deal and account, and they remained uncollected with the- mutual expectation that they would be settled in that way; and the plaintiff, as collector, settled with the town and treasurer from year to year, and paid over the amount of all these taxes.</p> <p>The plaintiff claimed to recover the amount of two notes, (not negotiable,) given by the intestate to the plaintiff, January 20, 1843, for $209.19 and interest, after April 1, 1843, to which there was no objection interposed except the statute of limitations, which was urged against this and all the items of the plaintiff’s account.</p> <p>On the 20th day of March, 1843, the parties were together at G. Rolfe’s office in Tunbridge, to settle their accounts; they looked over the intestate’s accounts to that date, and agreed upon its amount at $212.21, and not having time to complete the settlement, and adjust the plaintiff’s account also, they postponed it to some future time, but wrote upon the defendant’s book as follows.</p> <p>“ March 20, this day settled this book by due-bill to Hall, and made the same even up to this date, $212.21.</p> <p>Benj. Hall,</p> <p>Amos Notes;”</p> <p>And thereupon a due-bill was written and signed as follows.</p> <p>“ $212.21, March 20, 1843. Due Benjamin Hall, on demand, two hundred and twelve dollars and thirty-one cents to apply on settlement.</p> <p>Witness, G. Rolfe. Amos Notes.”</p> <p>And they then called Mr. Rolfe to witness that they had proceed-eel so far In their settlement; and as they could not finish it, the parties both agreed, and desired Rolfe to recollect that as some of their deal was outlawed, or becoming so, neither of them would take any advantage of the statute of limitations having run upon the others claims, but that they would thereafter settle without objection oil that account. ,</p> <p>The parties then seperated, and each party occasionally, for some three years or more after this, asked Rolfe if he recollected, and wished him to remember their agreement in relation to waiving the statute of limitations.</p> <p>The plaintiff afterwards called upon the intestate, a short time previous to the expiration of six years from the giving of the two notes of $209, for the purpose of renewing them, and adjusting their accounts, when the intestate told him he could not then settle with him, but would when he was able, but that he should not be owing him on settlement; and tbé plaintiff about this time, and before the statute had run on these notes, employed Mr. Sturtevant to go and talk with the intestate about them and their accounts, and he did so; and then the -intestate told Sturtevant that it would not do for Noyes to sell those notes, as he (Hall) had offsets to them, but expressed a willingness to settle, and wished Sturtevant to assist them to settle, but said he did not owe Noyes anything. This conversation was in 1848 or 1849. Some time in the spring of 1851, Andom B. Noyes, a son of the plaintiff, asked the intestate why he did not settle with his father, to which the intestate replied that he had once commenced a settlement with him, but there were some things outlawed on both sides,' and they agreed not to take any advantage of the outlawing, and that he was ready to settle any time when his father was.</p> <p>The principal claim in favor of the intestate, was for the amount of the above mentioned due-bill, to the allowance of which the plaintiff did not object, but claimed a deduction from, or offset to it of $15.48, which was charged in the intestate’s account for the work of one Wheeler, and included in the amount for which the due-bill was given; and in reference thereto, the following facts appeared.</p> <p>The defendant owned a carding and cloth-dressing establishment, which Wheeler carried on, but on what terms or conditions, did not appear. Said "Wheeler had the charge of the establishment, and did such custom work as was brought in; and among other things, did work for the plaintiff to the amount of $15.43, and the plaintiff let Wheeler have such articles of provisions and produce as he wanted to some over two dollars more than Wheeler charged for the work, expecting the same to go in payment therefor, and charged the same to Wheeler on liis book. Finding the work charged by the defendant, at the time of the giving of said due-bill, he objected to it, and informed the defendant that he had paid Wheeler for the sum; and thereupon the parties stopped for the plaintiff to ascertain about the charges by sending to Wheeler. The plaintiff sent a copy of his account to Wheeler, and Wheeler returned to him a receipt for the same, amounting to about two dollars more than the $15.43, charged for Wheeler’s work.</p> <p>The defendant objected to the testimony in relation to the amount of the Wheeler receipt, and the agreement to deduct that amount from the $212.21, on the ground that parol evidence was inadmissible to alter, vary, or explain the writing of the parties upon the defendants book, but the objection was overruled and the testimony admitted,</p> <p>All of the foregoing items; viz, the charges for the taxes, the notes and the $15.43, were allowed in favor of the plaintiff by the auditor and referee, and also by the county court. Exceptions by the defendant.</p> <p>The taxes charged in the plaintiff’s account were not proper subjects of book account, and cannot be recovered in that form of action. There was no money or other thing delivered, for which the right to charge subsisted ; Slasson v. Davis et al, 1 Aiken 73; Nason v. Crocher, 11 Vt. 463 ; Carpenter v. Dole, 13 Yt. 578.</p> <p>The distinction between what may and what may not be charged on book, is to be drawn from the character, and not from the amount of the deal; Leach et al v. Shepard, 5 Yt. 363.-</p> <p>These taxes were never charged to Hall; and if Mr. Hall was ever liable to him on account of these taxes, it must be established in some common law action.</p> <p>The whole account, on both sides, is outlawed. A promise to waive the statute would only amount to a new promise, and would run but six years ; Munson v. Rice, 18 Yt. 58.</p> <p>To take the debt out of the statute by an acknowledgment, there must be no expressed unwillingness to remain liable for the debt; Phelps v. Steioart et al, 12 Yt. 256.</p> <p>Hall on every occasion protested that the was not owing Noyes. When the defendant denies his indebtedness, it is virtually denying the justice of the claim ; and in such case, an agreement not to take advantage of the statute is not a sufficient acknowledgement to avoid the operation of the statute; Oarruth v. Paige, 22 Yt. 179.</p> <p>But whether the acknowledgement was sufficient to remove the statute bar in relation to the account or not, it could have no such effect upon the notes.</p> <p>The only evidence of a new promise in relation to the notes, came from Mr. Sturtevant. Hall said to Slurtevant that “ it would not do for Noyes to sell those notes, as he had an offset against them;” equivalent to saying “ they are paid.” This is. the same doctrine contained in Oarruth v. Paige, above cited.</p> <p>^he item of $15.43 was improperly allowed.</p> <p>The facts found by the auditor and referee bring this case within the rule established by numerous authorities in this state? that an admission of a present indebtedness, or an acknowledgement of subsisting demands, or the expression of a willingness to settle and adjust existing accounts and demands, is equivalent to a promise to pay, and thus takes the case out of the operation of the statute of limitations; Olcott v. Scales, 3 Yt. 173 ; Barlow v. Bellamy, 7 Yt. 54; Phelps v. Stewart, 12 Yt. 256 ; Blake v. Parleman, 13 Yt. 574; Ohapin v. Warden, 15 Yt. 560; Minkler v. Bst. of Minkler, 16 Vt. 194; Oarruth v. Paige, 22 Yt. 179; and in such case, the opinion, belief, or protestation even, of the party promising, that he does not owe, will not alter his liability in this respect; Williams v. Finney, 16 Yt. 297; Paddock v. Oolby, 18 Yt. 485 ; Burton v. Stevens, 24 Yt. 131; Cooper v. Parker, 25,Yt. 502.</p> <p>The plaintiff’s claim for the amount of the Wheeler receipt was properly allowed. From the facts, as detailed, the auditor must have found that the defendant had no right to claim this of the plaintiff, and that the defendant agreed to deduct it from the amount minuted on the defendant’s book, on the production of a receipt from Wheeler; and the county court in accepting the report, must have found the same facts directly, or must have inferred such facts from matters stated by the auditor and referee in his report, and their judgment therein will not be disturbed in this court; Stone et ais v. Foster, 16 Vt. 546; Birchard et al v. Palmer, 18 Vt. 203; Barber v. Britton et al, 26 Vt. 112.</p> <p>The tendency of the testimony was not “ to alter, vary or explain the writing of the parties,” but to prove an independent fact; that is, an agreement to refund the amount on producing Wheeler’s receipt, which amount the defendant was not entitled to retain ; 1 Greenleaf’s Ev. Sec. 284.</p>

<p> Constructive possession. </p> <p>A constructive possession limited to the bounds given in the deed under which the party claimed, and not extended to an old line beyond, to which, for a part of the distance, there had been more than fifteen years actual occupancy.</p>

The appellant filed a declaration in assumpsit upon the general counts. The nature of his claim, the facts' and testimony in reference thereto, the questions involved, and the proceedings of the county court thereon, sufficiently appear in the opinion, which, after argument by

Petition for partition, to which the defendant plead several pleas in bar, the first of which was that the defendant was seized and possessed of the premises referred to in his own right, “ without that, that the said petitioner was, and is seized of any part thereof as tenant in common, as in his petition he hath alleged.” Upon the trial, it appeared that the defendant, on the 30th of December, 1850, was the owner of a piece of land, including the premises of which a…

Assumpsit. The suit was commenced by the plaintiff as the bearer of a promissory note, in reference to which it appeared, that John Griswold, the father of the plaintiff, deceased in December, 1851, owning a note against the defendant, which he had placed in the plaintiff’s hands for collection and that by bis will be appointed the plaintiff, Loren Griswold and John Griswold the executors thereof, which trust they accepted; and that they were the residuary legatees ; and…

Assumpsit. The parties agreed upon the following statement of facts. The intestate, Lester Abbott, about the year 1845, removed from Brookfield, in this state, to Lowell, Mass., and there resided till December, 1848, when he went to California, leaving his wife and child in Lowell.

In the county court, January T].erm, 1856, — Underwood, J., presiding, — .the appellee moved to dismiss the appeal, on the ground that the county court had no appellate jurisdiction of the subject matter. The motion was overruled, and the appellees excepted. The parties then agreed upon a statement of the facts in the case, upon which the county court reversed the decree of the probate court setting out the homestead, to which the appellees also excepted.

The following facts were found and reported, by a commissioner to whom it was referred by the county court.

<p>Trespass for false imprisonment. Plea, the general issue, and notice of a justification under a warrant for the collection of a highway tax against the plaintiff. Trial by the court, January Term, 1856, — TJnderwood, J., presiding.</p> <p>The defendant was one of the highway surveyors in the town of Brookfield for the year 1852; and on the 24th of May of that year the selectmen of that town placed in his hands a tax-bill and warrant, of which the following is a copy.</p> <p>“State or Vermont, Orange Gounty, ss. To William Whit- “ ney, one of the surveyors of highways in Brookfield, in said “ county, Greeting,</p> <p>“ By the authority of the state of Vermont, you are hereby com“manded to collect of the several persons named in the within “ tax-bill, inhabitants who are liable to pay highway taxes in said “ Brookfield, the sums annexed to their names, in money or labor, “ and cause the same to be laid out in making and repairing the “ roads and bridges within the limits hereinafter described, viz., the “ same as last year.”</p> <p>(Here follow the names of the persons assessed, with the amount of their respective grand lists and taxes, among.'which is Jhat of the plaintiff.)</p> <p>“ Three-fourths of the tax to be collected and laid out as afore- “ said, between the first day of May and the first day of July next; “ and the remainder between the first day of September and the “ first day of November next. For labor, you are to allow, for a “ good hand, ten cents per hour; for a yoke of oxen, per day, $1.00; “ for a pair of good horses, per day, $1.25; for a cart, plough and “ scraper, in proportion, and, if damaged, to be made good. And, “ if any person or persons shall neglect to pay said sum or sums “ in labor as aforesaid, you are to proceed with him or them as the “ law directs. Hereof fail not,” &c., &e.</p> <p>The defendant called upon the plaintiff several times for the payment of his said tax, and, at the time in question, met him away from his home and inquired of him what he was going to do about the tax. The plaintiff said he did not know, but as the defendant should say, he supposed. The defendant then read his warrant to the plaintiff, and told him he had a right to take his body or property. The plaintiff asked him if he would not take the property. The defendant said no, and that he wanted his body then, and thereupon the plaintiff surrendered himself, and the defendant committed him to jail in Chelsea. It appeared that the plaintiff then had a horse, sleigh and buffalo robes with him, and three or four hundred dollars in money in his pocket, but he did not turn out or designate any property for the defendant to take to satisfy the tax, and he refused to pay it.</p> <p>Upon the trial, the defendant, to justify the arrest and commitment of the plaintiff, offered in evidence his rate-bill and warrant, together with his return annexed thereto in which the defendant’s proceedings in collecting said tax of the plaintiff were set forth, and in which he stated that, upon the commitment of the plaintiff, he left with the jailor a true and attested copy of the rate-bill and warrant, with his doings thereon endorsed. This evidence, though objected to by the plaintiff, was admitted by the court, subject to all legal objections. The plaintiff offered in evidence a copy of said rate-bill and warrant without any return whatever accompanying it, and proposed to inquire of the defendant, who was a witness in the case, if this was not the copy, and the only copy, he left with the jailor at the time he committed the plaintiff to jail, and whether the return introduced by the defendant was not made at a subsequent time. To this evidence the defendant objected, insisting that the return on the original warrant was conclusive, and not subject to be inquired into. The court overruled the objection and admitted the testimony, from which it appeared that the only copy left with the jailor, at the commitment, was the paper offered by the plaintiff, and that the return on the original warrant was not made by him until a month or more afterwards. Upon this state of facts, the court rendered judgment for the plaintiff.</p> <p>Exceptions by the defendant.</p> <p>When the plaintiff refused to pay his tax, the defendant had the right to arrest him, unless he requested him to take property. This he did not do. It does not even appear that the defendant knew that the plaintiff had property,</p> <p>The rate-bill and warrant are in the usual form.</p> <p>The return on the warrant is conclusive between these parties in this action. Had the defendant been sued for a false return, it would then have been competent for the plaintiff to show the ,falsity of the return. But the question now arises collaterally, and, in such case, parol evidence is not admissible to contradict the return. Hawks v. Baldwin, Brayt. 85; Garney v. Dennison, 15 Yt. 400.</p> <p>The warrant is not sufficient. The defendant is not therein commanded to take either the goods or chattels or the body of the delinquent. It is not in the form prescribed; Comp. Stat. p. 616, form 23. It is bad for want of substance.</p> <p>The same powers are given to highway surveyors that are to constables; Comp. Stat. p. 178, § 21. “ For want of goods and</p> <p>chattels whereon to make distress, the constable may take the body of such delinquent.” Comp. Stat. p. 464, § 14.</p> <p>The case shows that the plaintiff, at the time of the arrest, “ had a horse, sleigh and buffalo robes with him,” and the defendant refused to take property, but “ wanted his body then.”</p> <p>He should have left with the keeper of the jail an attested copy of his warrant, and have certified his doings thereon; Comp. Stat. p. 464, § 15; Henry v. Tilson, 19 Yt. 447.</p> <p>A regular tax-bill and warrant, of themselves, are not a sufficient justification; Oollamef v. Drury, 16 Yt. 574; Downing v. Roberts, 21 Vt. 441. The original warrant is not a returnable precept; nor is the return thereon evidence, the officer not being required by law to certify his doings, except upon the jail copies; Hathaway v¡ Goodrich, 5 Yt. 65 ; Spear v. Tilson, 24 Yt. 420.</p>

<p> Trespass. Damages. Deed of husband and wife. Statute of limitations. </p> <p>Tbe plaintiff claimed title to a piece of land upon which a quantity of wood had "been cut by a person claiming adversely to her, by whose employment the defendant removed the wood about one hundred rods from the place where it was cut, but left it on the same lot. that if the wood belonged to the plaintiff, so that she could maintain an action of trespass against the defendant for the removal, she could recover only nominal damage, or such actual damages as were occasioned by the removal.</p> <p>In a deed from a husband and wife, executed while our statute required the acknowledgment by the wife to be made by her separately from her husband, it should appear in the certificate of acknowledgment that it was so acknowledged by her. If it does not, the deed will be inoperative and void as against the wife.</p> <p>The possession of land taken under a deed from a husband and wife, without a certificate of such an acknowledgment by the wife, will not be adverse to her rights while she remains under coverture. The statute of limitations will commence running against her only from the death of her husband.</p>

Debt on recognizances, in reference to which the parties agreed upon the following statement of facts. “ This was an action of debt on two recognizances for reviews in two actions, heretofore pending in Orange county court, in favor of the present plaintiff, against Daniel Tarbell, Jr., and others.

Before the justice, the trustee disclosed that he was indebted to the principal defendant upon a note for less than $20. The claimant appeared before the justice, and claimed the note against the trustee, as belonging to him, hut the justice rendered judgment in favor of the plaintiff against the trustee, for the amount due on the note, which was less than the judgment recovered against, the principal defendant. The claimant appealed.

Action on tiie case for the negligence of a constable of the defendant town.

Appeal frota the decision of the commissioners on the estate of Adam Hobart, disallowing the plaintiff’s claim. The plaintiff filed a declaration in assumpsit. Plea, the general issue ; trial by the court, by agreement of parties, January Term, 1856, — Under-Wood, J., presiding.

Assumpsit. The declaration contained three counts, the first being for money had and received by the defendants to the plaintiff’s use ; the second for the rent, use, and occupation of the plaintiff’s farm, called the Gould farm; and the third for money lent to, and paid for the defendants. Plea, the general issue; trial by jury, January Term, 1856, — Underwood, J., presiding.

Trespass for a quantity of hay. Plea, the general .issue; trial by jury, January Term, 1856, — Underwood, J., presiding. The plaintiff) as deputy sheriff, attached the hay in question as the property of William Woodman upon a writ against him in fa-favor of George Sleeper.

Action on the case. The declaration set forth the issuing of a writ in the plaintiff’s favor against one Levi Gilman; and the attachment by the defendant, as a constable, of certain specified property thereon; the recovery of a judgment in the county court in the plaintiff’s favor, in the suit commenced by said writ, and then proceeded as follows, “ and from the decision of the county court last aforesaid, said Gilman, by his exceptions, carried and removed said suit to the…

Information, by the state’s attorney of the county, setting forth that the respondent was holding and exercising the office of postmaster in the town of Orange, being an office of profit and trust by and'ünder the authority of the congress of the United States, and that he had been elected to, and was holding and exercising the office of justice of the peace for the county of Orange, being a judiciary office, under the authority of this state, for the year commencing…

The. cause was referred, and, from the report of the referee, the following facts appeared. By the will of Daniel Peasley, sen., the father of the intestate, which was probated Januáry 18, 1828, three-fourths of his property, after providing for his widow, was given to his son, the intestate ; and the other fourth was to be equally divided between his daughters, Lucy Ann Peasley and Laura Ann Peasley.

Assumpsit. The declaration alleged that the plaintiffs offered for sale at public auction a piece of real estate in Bradford, the conditions of the sale being that one-third of the purchase money… Held: a promise to pay the purchase money is implied by law from the execution and acceptance of the conveyance, on which implied promise an action of general assumpsit will lie; Parsons on Contracts, vol. 2, p. 315-319.

Trustee suit, commenced before a justice of the peace and appealed.

Audita Querela to set aside a judgment rendered by a justice of the peace in favor of the defendant, against the complainant, by default.

Book account. The plaintiffs’ account was for work of themselves and others upon, and for materials furnished for a starch factory-built by the defendant in the summer of 1853. The auditor reported that the charges were correct and reasonable, as to amount, and that the plaintiffs were entitled to recover therefor, subject to the opinion of the court, as to the right of the plaintiffs to recover in their joint names, upon the facts following.

Ejectment fora lot of land in Lowell. A trial was had in the county court at the June Term, 1850, when a verdict was returned for the defendant Philbrook, and against the defendant Woodbury. The plaintiff thereupon reviewed as to Philbrook, and Woodbury reviewed as to himself. A second trial was had at the June Term, 1855, to which time the cause had, from term to term, been continued, when a verdict was returned in favor of both of the defendants.

Book account. On the 8th of May, 1851, the defendant entered into a written contract by which he agreed to peddle for his brother L. A. Braynard, who was to furnish a cart, horse and harness, and pay the defendant $20 per month and his expenses; and on the 1st of May, 1852, a new contract in writing was made by which the defendant was to peddle for his brother during the following year, and receive, as his pay, one-half of the profits.

<p> Partnership. </p> <p>An order upon a firm for the credits which the drawer has in the hands of the film or of any of its members, and an acceptance of it by one of the partners who has the special management and liquidation of the business and debts subsisting between, the drawer and the firm, held to bind such partner individually.</p>

Trover for two thousand bushels of potatoes. Flea, the general issue; trial by jury, December Term, 1855, — Poland, J., presiding.

<p> Attorney and client, Confidential communications, JEvidence, </p> <p>A conversation with a lawyer, in reference to matters about which it was probable there would be litigation, but in which there was no retainer of the lawyer, nor anything showing that his advice was sought to regulate the future conduct of the other party in relation thereto, is not privileged from disclosure as a confidential communication between client and counsel.</p> <p>The prevailing practice of the legal profession in this state, in giving opinions and advice upon legal subjects, without particular study and examination in reference thereto and corresponding pay or a distinct retainer, commented on and condemned.</p> <p>Where to a declaration for the breach of a contract in not furnishing a proper and suitable kiln and dry-house, in which to secure certain hops, the defendant plead that he did prepare a suitable kiln and dry-house, ready for use when it was required, and according to the true intent and meaning of the contract, and to the full satisfaction of the plaintiff; evidence that the plaintiff consented that a new. kiln and dry-house need not be built, but that one of his own might be, and that it accordingly was used, and the plaintiff paid for the use of it, is admissible, and has a tendency to support the issue presented by the defendant’s plea.</p>

Scire eacias upon a recognizance for an appeal, by one Jacob Stebbins, from a judgment recovered before a justice in favor of the plaintiff. The defendant pleaded a tender of the additional costs, and that there were no intervening damages beyond; trial-by jury, December Term, 1855, — Poland, J., presiding.

Debt on an arbitration bond, executed by the defendants to the plaintiffs, the condition of which recited the submission of a suit pending in favor of the defendant Hill, against the plaintiffs, to certain referees named, and concluded as follows: “ Now, if the said Reuben W.’ Hill, his executors and administrators, on his and their part, shall and do, in and by all things, well and truly observe, perform and keep the award and determination which the said arbitrators shall…

Holmes, a former administrator; and decreeing the residue of the estate, remaining after the allowance of said account, to the said George R. Holmes. Upon trial in the county court, December Term, 1855,— Poland, J., presiding, — the following facts appeared. The appellants were a brother and brother-in-law, and the said George R. Holmes was the husband of the intestate, Harriet N. Holmes, whose maiden name was Harriet N. Wilson.

Book Account. The plaintiff’s account consisted of several charges for Ms services and expenditures as an attorney. The auditor reported that the services were performed as charged for in the first item of the account, and that they had never been paid for; but that the statute of limitations had run upon the charge, subject to the opinion of the court upon the following facts.

Assumpsit. The first count in the plaintiff’s declaration was for money had and received, and the remaining counts were upon an award of arbitrators, but, during the trial, tlie plaintiff waived the counts upon the award. The defendant plead the general issue, and the case was tried by jury, at the January Term, 1856, — Poland, J., presiding. Upon the trial, the following facts appeared which were not controverted by either party.

<p> Revocation. Book account. </p> <p>The bringing of an action on book account is not, per se} a revocation of an authority previously given by the plaintiff to tlie defendant to pay to a third person certain items in the plaintiff’s account. If the defendant, after the commencement of the suit but before the audit, pay such items to a third person in pursuance of an authority previously given, and not revoked, he should be allowed for such payment, although he thereby obtains a balance of the account in his favor.</p>

This was an action appealed from the judgment of a justice. The defendant filed a plea in abatement, as follows. “ And now the said defendant, by Ossian Ray his attorney, comes and defends, No copy of either the original writ, or of the replication to the above plea, came into the hands of the reporter. The county court, May Term, 1855, — adjudged that the writ abate, to which the plaintiff excepted.

The orator in his bill alleged that on the fifth of May, 1845, he owned certain lands in Canaan, of the value of fifteen hundred dollars; and to secure to himself and his wife Mary, who were old and infirm, their support for life, he conveyed the same to his son Amasa Frizzle, together with certain personal property; and his said son Amasa thereupon gave to the orator an obligation or promise in writing to pay him and his wife annually, during their lives, eight bushels of…

Assumpsit. The date of the writ does not appear in any of the papers in the hands of the reporter.

<p>Assumpsit upon a lease of a certain piece of land, from the defendant and Franklin Lamed,1 (as to whom a non est inventus return was made on the plaintiff’s writ,) to the plaintiff, upon which to erect a bowling alley. Plea, the general issue; trial by jury, June Term, 1855, — Poland, J., presiding, — when a verdict was returned for the plaintiff. Upon the trial, exceptions were taken by the defendant, the nature of which, and the facts upon which they were founded, being sufficiently stated in the opinion of the court.</p>

Book Account. The plaintiff’s account contained but one charge, which was for taking care of eighteen head of the defendant’s cattle for ten and a half weeks in the spring of 1854, which the auditor allowed at $ 12.96, subject to the opinion of the court upon the following facts. In the fall of 1858, the plaintiff sold to the defendant his farm in Barre.

Trustee Process. Some years previous to 1836, the principal debtor Orange S. Clark, the father of the trustee, purchased a small piece of land in Groton village, for $75. He made improvements, by building a dwelling house, and other necessary buildings for a family, so that it answered for a homestead, and was occupied by him as such.

<p>Book account. The plaintiff’s account was as follows.</p> <p>“ Feb. 23,1854,</p> <p>“ To one ox-yoke, . $1 50</p> <p>“ 16 sheep at $5 each, 80 00</p> <p>“ Keeping sheep 2 days by agreement, 50</p> <p>“ Feb. 25, 1855, By cash, $1 50</p> <p>which the auditor allowed as charged, subject to the opinion of the court upon the following fact's.</p> <p>Sometime prior to the 23d of February, 1854, the plaintiff advertised that on that day he would sell at auction, at his residence in Sheffield, a large amount of personal property enumerated in his advertisement, and on that day he employed one James Roberts, as his auctioneer, to sell said property; and the plaintiff and said Roberts procured one Laban M. M. Gray, as a clerk, to keep an account and record of the sale.</p> <p>The defendant bid off the ox-yoke and the sheep at the prices charged in the plaintiff’s account, he being the highest bidder on each of the above named articles, and they were struck off to him. by the auctioneer, and entered to him by the clerk, at the time, in a book in which lie kept the sales, and this the defendant knew, and he made no objection to the same at the time. Awhile after the sheep were so struck off, the defendant inquired if the plaintiff had another yard where the sheep could be put away from the horned cattle, so as not to be injured by them; the plaintiff told him there was one, and they, with others, drove the sheep into another yard.</p> <p>Near night, as the defendant was about starting for home, he told the plaintiff that the roads were so drifted, and the distance to his residence so great, that he should be unable to get the sheep home that night, and that if the plaintiff would keep' the sheep until Saturday night he would come then, and get them, and pay all bills. The plaintiff replied that the sheep would have to stay with some colts, if they were left; to which the defendant said ‘‘ I will risk the sheep if you will the colts.”</p> <p>The defendant came the next Saturday night and said that he was not obliged to take the sheep, that they were not what he supposed they were, and refused to take them, though requested to do so by the plaintiff; and he then took the ox-yoke and paid for it.</p> <p>The plaintiff claimed that the changing the sheep into the other yard, as well as employing the plaintiff to keep them, amounted to such a delivery by the plaintiff and acceptance by the defendant as the statute contemplates, and the defendant claimed that it did not. The plaintiff further claimed that the memorandum made by the clerk of the auction was a compliance with the statute, and the defendant claimed that it was not.</p> <p>The county court, December Term, 1856, — Poland, J., presiding, — rendered judgment for the plaintiff to which the .defendant excepted.</p> <p>The defendant cannot be made chargeable for the sheep. He is relieved by the statute to prevent frauds and perjuries. Comp, Stat. chap. 64.</p> <p>The facts reported by the auditor do not show a delivery.</p> <p>To have amounted to a delivery, they must have been intended by the vendor as vesting the right of possession in the vendee, and there must have been an actual acceptance by the vendee with an intention of taking the possession as owner. See Chit, on Cont. 890.</p> <p>The acceptance must be proved by some clear and unequivocal act of the party to be charged. Snow v. Warren, 10 Met. 132.</p> <p>The plaintiff had not relinquished his lien upon the property for the price, -and while the plaintiff retains his lien there can be no acceptance by the defendant that will avoid the statute. Chitty on Cont. 394, 395.</p> <p>This sale was not an auction sale recognized by the laws of this state. We have no sales recognized as auction sales in this state except sheriff’s sales.</p> <p>The plaintiff did everything required of him to give the defendant full possession and control of the property, and the defendant not only took control of the sheep, but said to the plaintiff that he would risk the sheep, &c. The time of payment or credit was extended to Saturday when the defendant promised to pay all bills.</p> <p>The acceptance of property, as a general rule, implies a delivery. Redington § Go. v. Roberts, 25 Vt. 686. In the case ofGliamberlain et als. v. Farr, 28 Vt. 270, the court say in reference to a sale of straw, left in the vendor’s barn, to be taken as the vendee desired, at an agreed price for the mass, that “ in matters of such bulk, all that is necessary to constitute a delivery is that the contract of sale should be complete, the particular portion set apart by itself, nothing more remains to be done on the part of the vendor, and the vendee agrees to take the goods as they are and where they are.” And Story on Sales, § 27 6, says, that “ if a final and unequivocal appropriaton of the property be implied from the acts of the parties, the statute is sufficiently complied with.”</p> <p>"With reference to the statute of frauds, it would seem that a sufficient memorandum was made to perfect the contract, and make it binding, independent of delivery. This is so unless a distinction can be drawn between an ^auction and a voluntary public sale, where the same forms are adopted, and for such a distinction I can find no good reason. See opinion of Lord Mansfield, Emerson v. Heelis, 2 Taunton 46.</p>

Trustee Process. It ’appeaíéd, from the disclosure of the trustees that, at the time of the service of the writ upon them, they owed the principal defendant $1.45; that the principal defendant and his minor son had subsequently worked for them, and that their work amounted to over $50.00; that a day Or two after being summoned as trustees, they advanced to the principal defendant $24.21 in cash, and had sold him goods from their store, at difdifferent times, to the amount of…

<p>Appeal from an order of removal of Israel Chamberlin, a pauper, from the town of Lyndon to the town of Danville. Plea, that the town of Danville was not the place of the pauper’s legal settlement. Trial by the court, June Term, 1854, — Poland, J., presiding, — upon the following case stated.</p> <p>Ralph Chamberlin, the father of the pauper, was bora in Dan-ville, February 27, 1800, and, with his father Caleb Chamberlin, had a legal settlement in that town.</p> <p>He married Lydia Beebee, at Danville, about the year 1822, and some two years subsequently, removed to 'Stanstead, in the province of Canada East, where the pauper was born, in the year 1826. When five or six years of age, the pauper was brought by his mother to Lyndon, Vt., and left with the family of a Mr. Berniss. The mother did not return to Canada, but remained mostly in Danville; and, about the year 1850, married her present husband, Mr. Nortlirup. The pauper’s father continued to reside in Stan-stead until his death, which occurred about the year 1844. The pauper had no legal settlement in Lyndon. He continued to reside there until 1851, when he removed to Burke, remained there one year, then returned to Lyndon and continued to reside there until his removal in September, 1853.</p> <p>Upon the foregoing facts, the county court decided that the pauper had a legal settlement in the town of Danville, and was therefore duly removed, to which the said town of Danville excepted.</p> <p>The father and grand-father of the pauper had a legal settlement in Danville. If the father had continued to reside in Danville and the pauper born there, or perhaps if born in Canada, he would have had a settlement by derivation from his father. The father, Ralph Chamberlin, having removed from Danville to Stanstead in Canada, about the year 1824, the pauper was born there in 1826. The event shows that the father removed to Canada with the intent to remain, as he continued to reside in Stanstead until his death some 20 years after. He therefore expatriated himself so far as it was possible for him to do so.</p> <p>"We deny that the son Israel took, at his birth, the settlement his father formerly had in Danville. Such a doctrine involves the proposition that our pauper laws have an extra-territorial operation, not only beyond the state, but beyond the United States; and this, too, when all the parties are without our jurisdiction, the father an alien by expatriation, and the son by birth; such a proposition is opposed to all analogy and all sound principle.</p> <p>But it is urged that the father having once had a settlement in Danville, that settlement continued until displaced by a settlement gained in some other town in Vermont, and that our courts take no notice of a settlement acquired abroad, as decided in Georgia v. Gi'and Isle, 1 Yt. 464. We do not controvert the doctrine of that case, and perhaps it may be reasonably extented to a settlement in Stanstead or Cuba. A legitimate consequence would be that if Ralph Chamberlin had returned after any length of time into Vermont, he would have been rehabitated to his former settlement in Danville, and might have been removed thither from any other town. This was precisely the point in the case alluded to. It does not appear, however, that the pauper, in that case, had any family; so nothing is determined in respect to the effect upon his wife or children. There is no doubt the same consequence Would result to any child born in Danville before they removed to Stanstead, for the doctrine of continuando, is equally applicable to original and derivative settlements. But the case at bar differs very materially from the one referred to. Ralph Chamberlin was fully and completely an alien before and at the time of the birth of the pauper ; and if this was not so, the very fact that the pauper was born in a foreign government renders him an alien. If, then, this pauper was an alien, could he, and did he succeed to a settlement in Dan-ville, which his father derived from his grand-father ? — to a settlement which his father had removed from, and abandoned long before the pauper was born ? We insist the father had no such right or benefit to impart to his son; and if he had the right in himself, he certainly had not the power, and neither had our laws the power to impart such right upon one born an alien.</p> <p>The supreme court of Virginia has decided “ that persons bom in a foreign country, of parents also born in foreign countries, are not citizens of Virginia, and consequently cannot inherit lands there,, although their grand-mother was a native of Virginia, and removed to England before the revolution, married there, and resided in that country until after the peace, when she returned to Virginia and resided until she died.” This is carrying the principle one step further than is asked in this case. United States Digest, Vol. 1, p 134.</p> <p>An alien cannot, by residence, gain a settlement in this state. Our laws regulating the settlement of paupers, are statutory regulations. They apply to our own state and her paupers, and have no such extraordinary energy and power that they can, and do transmit a settlement, derived from a grand-father, through an alien father, upon an alien son.</p> <p>Was the pauper, Israel Chamberlin, lawfully removed from Lyndon to Danville ?</p> <p>The pauper had no legal settlement in Lyndon or elsewhere, in his own right; hence he must derive one first from his father, if the father had one in this state. Had his father, Ralph Chamberlin, a settlement in this state ? The facts stated, show he had. Therefore the pauper, by the plain and express terms of the statute, was rightfully removed, no matter what may have been the place or circumstances of the pauper's birth, so long as he was legitimate ; or where may have been the residence of his father, so long as he gained no other settlement in the state, excepting the one in Danville.</p> <p>But it is claimed that the pauper, haviug^been born in a foreign jurisdiction, is not a citizen, and therefore can have no settlement in Vermont. Our statute distinctly repudiates such a doctrine. There is no exception where birth occurs in another state or government. Would this be urged against the pauper, had he been born in New Hampshire ? Certainly not; and yet it might be done with the same reason as when born in Canada. The laws of pauperism are one thing, and the laws of citizenship or naturalization quite another; they have no connection. The former belong exclusively to the states, and are purely matters of internal police, while the latter are made and regulated by the Federal Government for the union. There are various modes by which persons may acquire legal settlements without reference to citizenship, as by vote of towns admitting one to be an inhabitant; holding for two years certain town offices; having a certain amount of grand list, &c.</p> <p>But it is not true that the pauper was not a citizen of the United States. He was a citizen. By the 4th section of act of congress, passed April 14th, 1802, it is declared, “ the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States, provided the right of citizenship shall not descend to persons whose fathers have never resided within the. United States2 Kent p. 52.</p> <p>The pauper’s father, being two 'years of age at the time of the passage of the above act, was of course then a citizen of the United States ; for children, or minors, like women, are citizens, both by common law and by acts of congress, though they are not voters. His child, therefore, though born in Canada, was also a citizen of the United States by virtue of the foregoing act of congress.</p> <p>Even had his father expatriated himself and sworn allegiance to a foreign power, (and it is yet doubtful if he can do this without the consent of this government, which does not appear,) it would not vary the case in the least. The act makes no exceptions for such contingency.</p>

Ejectment for lands in Lyndon which were set out to the widow of Jesse Doolittle, as her dower in his estate, on the 11th of October, 1809. It appeared that the widow, Eunice Doolittle, died in 1848, and the plaintiffs claimed the reversion as heirs of the said Jesse Doolittle.

Trespass on the freehold. Plea, the general issue; trial by jury, June Term, 1855, — Poland, J., presiding.