Volume 29 — Vermont Reports

Account. The declaration alleged in the first count, that from the 16th of October 1849, to the 15th of January 1852, the plaintiff and defendant were partners in company and jointly interested and connected in carrying on the business of gold digging in California ; in the second count, that during the same time the defendant was bailiff to the plaintiff in the business of gold digging; in the third count, that they were partners in company, jointly interested and connected…

Appeal prom the Court of Chancery. The bill was brought by the town of Montpelier and its selectmen, in behalf of themselves and the other inhabitants of said town, against the town of East Montpelier and its selectmen, as properly representing the interests of all the inhabitants of that town.

Assumpsit upon a promissory note signed by the defendant, dated March 17th, 1851, numbered 229, and reading as follows: “ For value received in policy of the same number and date herewith, issued by the Farmers’Mutual Eire Insurance Company, I promise to pay the said company, or their treasurer for the time being, the sum of one hundred and eighty-nine dollars, in such portions and at such times as the directors of said company may, agreeably to their act of incorporation,…

Ejectment. The premises in dispute were a part of a lot of land in Montpelier, which was deeded on the 17th of May, 1831, by Jonathan Arms to… Held: and notified him that said mortgage was unpaid, and that he had purchased the same ; and claimed that said Denton should pay the balance due thereon ; that said Denton said he supposed he had paid all that belonged to him to pay, but referred him to Mr. Cottrill, his agent, and Mr. Upham, his attorney, who had charge of said…

Action on the case for diverting the water flowing in an aqueduct leading from a spring on the defendant’s land to the plaintiff’s house. Plea the general issue; trial by jury, March Term, 1856, — Poland, J., presiding. The plaintiff read in evidence copies of deeds, — James II.

Book Account. Before the auditor the plaintiff presented an account for gathering up data and writing memoir of the deceased, five hundred dollars ; and for cash paid out in expenses, forty dollars and eighty-eight cents ; together with the copy of a letter Written by him to one of the executors of the deceased, in which he gave a statement of the facts and circumstances in reference to his employment by the deceased to prepare a memoir of him, and of the progress made in it…

Indictment for Bigamy. The indictment charged that the respondent, on the 19th of November, 1830, at Sydney, in the state of New York, married one Lodema Spickerman, and that afterwards, on the 20 th of June, 1856, at Saratoga Springs, in the state of New York, he married one Eliza Guernsey, and that afterwards, on the 21st of June, 1856, at Moretown, in this state, he continued to cohabit with the said Eliza, his' second wife, his first wife, Lodema, being then alive, &e.…

Indictment for selling and giving away intoxicating liquor contrary to law.

<p>Appeal ergm the Court oe Chancery. The bill was brought to set aside an award of arbitrators, on account of their misconduct, and the fraud of the defendant in procuring improper allowances to be made by them in his favor.</p> <p>Certain matters in difference existed between the complainant and the defendant, which by their agreement were submitted in writing to the arbitrament of George. A. Page, George Sumner and Cornelius Smith, before whom a hearing was bad on the 28th of November, 1853, at which time they made an award in favor of the defendant for fifty-two dollars. Among the matters submitted was a claim by the complainant for four barrels of flour delivered to the defendant between the 18th and the 27th ol March, 1852. The orator had charged, and he proved by one Tracy a delivery to the defendant of seven barrels of flour between those dates, and previous to the arbitration the defendant had, as the complainant alleged, denied receiving but three of them ; but at the arbitration, upon the complainant proving the delivery of seven barrels, the defendant presented his account, drawn off on a sheet of paper, in which there appeared a credit to the complainant of four barrels of flour on the 19th of March, 1852, and of three barrels on the 25th. The four barrels credited under the date of the 19 th of March were, as the orator alleged, delivered and credited on the defendant’s hook at a date prior to the 10th of March, and had no connection with that claimed for by him as a part of the seven barrels, the delivery of which he proved by Tracy ; and he insisted that this he should be able to show upon inspection and examination of the defendant’s book, but that neither the defendan t or the arbitrtors would allow him such an examination, though the books were present and examined by the arbitrators; and that the arbitrators refused to continue or delay the hearing to enable the complainant to send for a witness, who resided eight miles distant, by whom he could have proved the delivery of the four barrels credited by the defendant, at a time long before the 19th of March. In the account presented before the arbitrators by the defendant, and allowed, were two charges for fifty dollars each, one under date of August 10, 1851, for “ cash for rent endorsed on lease,” and the other under date of December 8,1851, for “cash per Carter & Bliss on account.” During this time the defendant held a lease from the complainant of a certain store in Cabot aforesaid, upon which fifty dollars of rent became due August 10th, which was receipted on the lease as paid under that date, and the defendant testified and claimed before the arbitrators, that he had paid this rent twice; once in August at the date of said receipt, and again in December, as appeared by a .charge for the same on the books of Carter & Bliss, of which firm the defendant was a member. The complainant alleged that he was taken by surprise by this claim when made before the arbitrators, that he had never before heard it made, and the rent for that year had been treated as an adjusted matter, and that he was at the time unable to explain in reference to the existence of both his receipt and said charge on the books of Carter '& Bliss; that it was late at night, and he was sick and without counsel, and was denied the inspection of the defendant’s books and papers, and he again requested an adjournment, which was also denied him; that he did not at that time recollect that Harry Russ knew any thing about the matter; but that within thirty minutes after the arbitrators had retired, he recollected in reference to said rent, that it was actually paid in December at .the time it was entered on Carter & Bliss’ book, and was at the same time entered upon the lease by said Russ, and that he returned and informed the arbitrators that he. could explain respecting it, but that they refused to hear- him explain further respecting it unless the defendant would consent, and that the defendant would not consent. The bill alleged that the defendant had commenced an action upon the award, and prayed that the suit might be enjoined, and the award be vacated and annulled.</p> <p>The defendant in his answer stated, that the complainant justly owed him over two hundred dollars ; that he did not know what items in the account the arbitrators allowed or disallowed, but was confident that no mistake was made in his favor, and insisted that the award was conleusive. The defendant’s answer was traversed; and testimony taken, the nature and result of which are suflici-eiently stated in the opinion of the court. The court of chancery at their March Term, 1856, dismissed the complainant’s bill, from which dismissal he appealed.</p> <p>Courts of equity will set aside an award for gross mistake; Boston Water Power v. Gray, 6 Met. 168. Receipt afterwards discovered showing mistake; Ladd v. Barber, 2 I. R. Ch. 551. For partiality or mistake of the arbitrators ; 2 Story’s Eq. 676 ; 914 et soq, Thoughnot amounting to corruption; Lee v. PeteUer, 4 Leigh, 436. If arbitrators unreasonably refuse to adjourn to procure attendance of witnesses; Forbes v. Tracy, 2 Johns. Ca. 224. Passamore v. Pettit, 4 Dallas, 271; Cald. on Ar. 128, n. (1), 215, n. (1).</p> <p>Fraud of the party ; Emerson v. Udall, 13 Yt. 477 ; Herrick v. Vt. O. R. etals., 27 Yt.; Underhill v. Van Cortland, 2 J. C. 339. Chancellor Kent admits that “ partiality or misconduct of arbitrators or fraud of the party would avoid the award.” Lord Hard-wick says, (Cald. 162,) “if arbitrators acted ‘clandestinely’ without hearing each party, or the party by fraud mislead the arbitrators.” “ If undue means be taken to procure the award Lord Denman, Plems v. Middleton, (51 Com. L. 850.) “If injustice is brought upon a party by fraud or accident, or the act of opposite party f Ch. Kent Duncan v. Lyon, 3 J. C. 551; see Ld. Ch. Talbut, Cald. on Ar. 171; Alderson v. Dancy, 18 Vesey 444; Lankton v. Scott, Kirby 356; “ In clear mistake of law or fact,” 2 Story’s Eq. 679 ; Knoxv. Symonds, 1 Yes., jr. 368 ; Rogers v. Dellemede, 6 Term 111. “Willful concealment,” Cald. 169,170.</p> <p>As to the conclusiveness of awards and cases in which courts of equity decline to set them aside. Redeield J. in Emerson v. TJdall, 13 Yt. 477; Vandermaher et al. v. Vt. Central JS. Company, 27 Yt. 130; Herrick v. Belknap’s estate, 27 Yt. 673 ; Warner v. Conant, 24 Yt. 351; Leavit v. Cearnes, 5 Cush. 129 ; Vanderbilt V. Van Cortland, 2 Johns. Ch. 367; Burton v. Willy, 26 Yt. 430.</p>

<p> Use of property attached. 2'respasser ah initio. Replevin. </p> <p>If the bailee of an officer uses the property which the officer has attached and put into the bailee’s possession to keep, it will be regarded as the act of the officer, though it be without his knowledge, and will render him a trespasser ab initio.</p> <p>In such a case the officer is liable for the value of the property in trespass or trover, unless it has been applied towards the payment of the debt, in which case such an application will be considered in mitigation of damages; and, before such an application, the property may be taken and held by a writ of replevin.</p>

Appeal prom the Court op ChaNCSRT. The bill stated that the defendant, Luther G. Bingham, on the 25th of November, 1845, being justly indebted to the orator in the sum of one thousand four hundred and seventeen dollars and fifty cents, specified in three promissory notes bearing date October 1st, 1845, two of said notes for four hundred and seventy-two dollars each, the other for four hundred and seventy-three dollars and fifty cents, payable, the first, on or before October…

<p>Assumpsit for goods sold and delivered, and for work and labor performed, &c. The parties agreed upon the facts in the case, which were substantially as follows:</p> <p>The plaintiffs’ company was at the time of the sales hereafter mentioned, organized and acting under its charter and the various acts in amendment thereof, for the purposes and with the powers named in and conferred by said charter and acts. In the summer of 1852, the plaintiffs purchasedyof the Champlain Transportation Company the following named steamboats and property then used in navigating Lake Champlain, and in the carrying of passengers and freight to and from St. John’s to Whitehall and intermediate ports, to wit; the steamers Whitehall, Burlington, United States, Saranac, Francis Saltus and Winooski, with their furniture, rigging and apparel, a large quantity of wood lying at various points on Lake Champlain, to be used and which was used in running said boats, several acres of land lying on Shelburne Point, on which were standing sundry repair and machine shops with a large amount of tools and stock therein; which premises, shop, stock and tools, were used for the purpose of repairing said steamboats, the harbor for which was adjacent to said shops. The purchase of said boats and property was made for the purpose of enabling the plaintiffs to compete with other lines of travel and freight between Rouse’s Point and the cities of Boston and New York, and was not necessary for ány other purpose. ’</p> <p>• In August, 1853, the defendants bought of the plaintiffs one of said steamers, the Saranac, and after the purchase of the steamer they applied to the plaintiffs to buy, and did buy, so ar fas the plaintiffs could convey the title, various articles of furniture for said boat, at prices agreed upon, and for the recovery of which this suit was brought; all of which articles were purchased of said transportation company by the plaintiffs at the time of the other purchase above stated and were then paid for by the plaintiffs. The labor, for the recovery of which the action was also brought, was performed by the plaintiffs or their servants, by way of repairing said steamer Saranac at Shelburne Harbor after the sale of the boat to the defendants, and at their request.</p> <p>Upon the facts so agreed upon, the county court at the November Term, 1855, — Peck, J., presiding, — rendered judgment, pro forma, in favor of the plaintiffs for the amount of their claim. Exceptions by the defendants.</p> <p>The contract upon which a recovery is sought was one not authorized by the plaintiffs’ charter, and no recovery can be had upon it at law. The charter of the plaintiffs’ company does not authorize them to deal in the buying or selling of steamboats or their appurtenances.</p> <p>If the contract had not been executed on the part of the plaintiffs, its execution could not have been enforced by the defendants. This rule ought to be reciprocal. Angelí & Ames on Corp., secs. Ill, 232: Farmers’ Loan § Tr. Oo. y. Oarrott, 5 Barb. 613,640; Penobscot B. Oorp. y. Laivson, 4 Ship. 224; Betty v. Lessee of Knowles, 4 Pet. 152 ; Ooleman v. Eastern Oo. B. Go., 4 R. & C. Cas. 512; Hart, fy N. H. B. Go. v. Gaswell, 5 Hill 383; Graham y. Berhenhead Sf Go., 6 L. & Eq. 132; Union Loch Gandí Go. y. Town, 1 N. H. 44 ; Middlssex S. Oo. v. Loch, 8 Mass. 268; Munt y. Shrewsbury Ohester B. Go., 3 L. & Eq. 144; Atty. Gen. y. Gorp. of Norwich, 16 Sim. 225; Coll, on Part., secs. 198, 212 ; Livingston y. Lynch, 4 J. Ch. 473 ; Bavis y. Hawhins, 3 M. & S. 488; East Anglican B. v. E. Oo. B., 7 L. & Eq. 505; Frewin y. Lewis, 18 Eng. Ch. 253-4; Biver Dun. Nav. Go. y. N. M. B. Go., 1 R. & C. 155.</p>

Assumpsit on a promissory note; plea, the general issue; trial by the court, March Tex*m, 1856, —Pece, J., presiding. The plaintiffs introduced the note counted upon, which was dated February 21, 1850, signed by the defendant, and made payable to Thomas Fletcher or bearer, two years from date with interest. The defendant claimed that the action could not be maintained in the name of the plaintiffs, and introduced evidence from which the following facts appeared.

Trover against the defendants as receiptors of sundry articles of personal property, attached by tbe plaintiff as sheriff of the county of Chittenden, on the 3d day of February, 1851, on a writ of attachment in favor of Henry B. Hine against the defendant Nichols. Plea, the general issue; trial by the court, March Term, 1856, — Peck, J., presiding.

<p> Defective deed. Chancery. Evidence. </p> <p>A paper purporting to he a deed which is duly signed, witnessed and acknowledged, but which has no seal affixed to it, furnishes sufficient testimony on its face that the signer intended to seal it and omitted to do so by mistake; and a court of chancery will rectify such an omission; and if the original paper is lost its existence and contents may be shown by secondary evidence.</p>

<p>[in chancery.]</p> <p> Construction of deed. </p> <p>A description of the premises in a deed as “ water lots number one, two. three, four, five, six, seven, eight, nine, the westerly half of ten, eleven, twelve, thirteen and fourteen,” and in which there was a subsequent reference made to the buildings on lots number eleven, twelve, thirteen and fourteen, which were upon the easterly halves of them, construed, as conveying the whole of these lots.</p>

Action on the case against the defendant, as sheriff, for the default of his deputy in not attaching property. Plea, the general issue; trial by jury, November Term, 185G, — 'Peck, J., presiding.

Assumpsit. The action was brought to recover the amount of certain commissions alleged to have been earned by the plaintiff in the negotiation of a loan to the defendants.

Assumpsit. The declaration contained only the common money counts to which the defendant plead the general issue. Trial by jury, November Term, 1856,— Peck, J., presiding.

Libel eor a divorce on account of the alleged willful desertion of the libellee for three years. The facts in the case are sufficiently stated in the opinion of the court, which was delivered by

Appeal prom the Court op Chancery. The only paper connected with the case which came into the possession of the reporter was the opinion of the court, which was delivered at the Circuit Session in October, 1857, by

Book account. The first eleven items in the plaintiffs’ account were for several quantities of wood, delivered at different times, all of which had been paid for, so far as they were found to be correctly charged, and no question in reference to them was carried to the supreme court.

Trespass on ti-ie freehold ; general issue and a justification; trial by the court, December Term, 1855, — Rierpoint, J., presiding. The plaintiff proved, that in August, 1854, the defendant entered his (the plaintiff’s) enclosure by taking down the fence and driving, with a team, several times across a field of potatoes then growing.

Trespass. The injury complained of was that the defendants had caused the plaintiff to be wrongfully removed from and put out of the cars in which he was riding as a.passenger on the Vermont and Canada Railroad. The cause was tried by jury at the June Term, 1856, — Peck, J., presiding.

Book account. The facts, as reported by the auditor, were as follows : In May, 1854, the defendant was duly appointed by the commissioner for the county of Franklin the agent for the town of Swanton to sell intoxicating liquors for the purposes, and in the manner authorized by the act of 1852 to prevent the traffic in intoxicating liquors for the purpose of drinking; and he appointed one Daniel Platt his general agent to purchase and sell said liquors, and agreed to give…

Book account. The auditor reported the following facts : About the 25th day of March, 1854, George E. Solomons brought to the plaintiff’s shop in St. Albans a piece of broadcloth and requested the plaintiff to make a coat for him, and to furnish the trimmings. When the coat was finished Solomons called for it. The plaintiff handed it to him, when Solomons requested him to go with liim to the store, where he had been employed as clerk, for his pay.

Ejectsient for the recovery of certain lands in Fairfield. Plea, tlie general issue; trial by jury, December Term, 1856,— Pieepoint, J., presiding. The plaintiff showed the recovery of a judgment in an action of ejectment for the same premises, obtained by Aaron H. Payne, as executor of the last will and testament of Albert G. Payne, against these defendants, at the April Term of the Franklin county court, in the year 1846.

Scire Facias. The writ was as follows: “ Whereas, Aaron H. Payne, late executor of the last will and testament of Albert G. Páyne, late of Fairfield, said county, deceased, by consideration of the county court, holden at St. Albans, within and for the county of Franklin, on the 2d Tuesday of April, 1846, recovered a judgment against Lucy Payne and Mahala Payne, both of Fairfield aforesaid, in an action of ejectment for the quiet and peaceable possession of the premises…

EjectmeNT for certain lands in Granville, formerly Kingston, and to which the plaintiffs claimed title as the heirs of Aaron Jordan Bogue who, it was claimed, was one of the original proprietors of that town. The cause was tried upon the plea of the general issue at the June Term, 1856, — Piekpoint, J., presiding.

Assumpsit. The action was referred and the referee reported that the defendant did not assume and promise, &c., and he further reported the following facts: The plaintiff claimed to recover the amount of a promissory note for forty-five dollars, dated July 1, 1851, payable to A. Atwood or bearer in one year from date, with interest. The note was signed with the name of the defendant, by Lewis Durant, his son.

<p> Exceptions. </p> <p>Exceptions taken upon a trial in the county court must he signed by the presiding judge and filed with the clerk within thirty days from the rising of the court. If, in consequence of the absence of the presiding judge from the state, the exceptions so taken and filed are signed only by the two assistant judges3 they will, on motion, be dismissed.</p>

. TRESPASS for taking a pair of oxen and seven cows. The defendant plead the general issue, and three special pleas justify, ing the taking as collector of a school district.

Assumpsit. The action was originally brought against Edward D. Barber and the defendant Phelps as partners, as attorneys, under the name of Barber & Phelps, for their neglect as attorneys in the care and management of certain business in which the plaintiff had employed them.

Assumpsit to recover assessments upon the alleged subscription of the intestate for ten shares of the capital stock of the Rut-land and Burlington Railroad Company. The case came to the county court by appeal from the allowance of commissioners, and was tried by jury upon the general issue, with notice that said subscription was not made by the intestate nor by his authority} at the March Term, 1856, — Pierpoint, J., presiding.

■ Book account. The plaintiffs’ account was for their services, &e., as attorneys.

Debt upon a replevin bond taken of the defendants by Isaac Gibson, as constable of the town of Rutland, on the 16th day of May, 1854, upon the service by him of a writ of replevin in favor of the Rutland and Washington Railroad Company, to replevy property attached upon a writ against them in favor of the plaintiff.

Trustee process. It appeared from the disclosure and other testimony that the principal defendants were partners under the name of Jones & Dow, that they dissolved their partnership in 1850, at which time they were largely indebted to the trustee, who was the father of Lucius Dow, and also his individual creditor to a large amount Soon after the dissolution Lucius Dow, who had the general charge of closing the partnership business, transferred to his father, the supposed…

Book account. The plaintiff’s account was for teaching school for the defendants for one and a half months. The facts as found and reported by the auditor are sufficiently stated in the opinion of the court. The county court, March Term, 1856,— PieREOiNT, J., presiding, — “rendered judgment upon the auditor’s report in favor of the defendants, to which the plaintiff excepted.

Book account. The plaintiff claimed to recover of the defendant for two months’ work at twenty dollars per month, in reference to which the auditor found and reported the following facts: The plaintiff hired out to the defendant to. work bn his farm in Rupert for the term of five months at twenty dollars per month, provided they both liked, the plaintiff reserving to himself the right to quit at any time if dissatisfied, and giving the defendant the right to discharge him in…

Book account. The disputed items in the plaintiff’s account 'were as follows: “ To services as director and executive committee, four years, ten months, nineteen days,..............$4,896.00 “ To two and one-half per cent, commission on sale of bonds to the amount of twenty thousand dollars,. . 500.00 ” In reference to the first of the above items the auditors reported the following facts: The plaintiff was elected a director at the organization of the company, July 3, 1845,…

Book account. In offset to the plaintiff’s account, which was for the board and tuition of the defendant in the Troy Conference Academy, of which the plaintiff was the preceptor, the defendant presented an account as follows : “ To paid expenses to and from Rutland, áse., preparing for exhibition,...............................$16 00 “Paid the Whitehall Band,........................ 14 00 “ Time and services in preparing for the exhibition, procuring schemes printed,…

Appeal prom the Court op Chancery. The orator’s bill prayed for a foreclosure of the right of the defendants in equity to redeem the premises described in a mortgage deed, dated January 10th, 1828, executed by Timothy Reed to Alexander Barrett to secure the* payment of five promissory notes of that date for three hundred dollars each, which with the mortgage were sold and assigned to the orator by Barrett on the 7th of March, 1828.

. EjectmeNt for the premises described in the deed from Daniel Hulett to Diana Smith.

<p>Appeal from an order of removal of Austin Perham, a pauper from the town of Rupert to the town of Winhall. The following: were agreed upon as the facts in. reference to tire pauper’s ■ settlement :</p> <p>Paul Perham, the father of the pauper, never had any legal settlement in this state. He was married to the pauper’s mother, Rachel Vail, in Winhall, in 1837. She was the daughter of' Edward Vail who always had his settlement in Winhall. The pauper’s father and mother lived and cohabited together as husband and wife until the death of the mother, which occurred at Pawlet in 1849. At this time the pauper was a minor, and he afterwards went to reside and did reside in the town of Rupert, and became chargeable to that town, and after he became of age, but before he gained any legal settlement in Rupert, the order of removal in question was made.</p> <p>Upon the foregoing facts the county court, June Term, 1856,— PieepoiNT, J., presiding,— decided that the pauper was duly removed, to which decision the defendant town excepted.</p> <p>The mother of the pauper had no settlement in Winhall, or at most but a derivative, contingent one. The contingency depending upon the fact, whether she continued to live with her husband.</p> <p>While she lived with him she had no settlement to which she or any of her children could be removed; Hartiand v. Windsor, decided last March in Windsor county, April No. Law Reporter, 706.</p> <p>She continued to live with him till her death in 1849, the pauper then being a minor.</p> <p>It would seem a palpable absurdity to hold that the death of the mother gave the child a settlement to which it might be-removed, which right did not exist while the mother lived.</p>

Trespass. The defendant attached an iron shovel, spade, dungfork, three pitchforks, a scythe and snath, a potatoe hook, hog hook, common axe, broad axe, adz, hatchet and five augers belonging to the plaintiff, and all the articles of the kind which he owned, all which articles were worth ten dollars and thirty cents* It appeared that the plaintiff’s principal occupation or trade was shoemaking, but that he lived rather isolated and did his own mending or tinkering” of sleds,…

Boob: account. The auditor reported abalance of one dollar and fifty-two cents in favor of the plaintiff, subject to the opinion of the court upon the following-facts: In the spring of 1856 the defendant had an account against the plaintiff, and sent him a copy of it, in which he claimed a balance due him of eleven dollars and twenty-nine cents.

PetitioN poe a CERTIORARI. The defendants, in 1855, petitioned to the selectmen of Bennington to lay a highway between certain specified termini in the village of Bennington, and upon the neglect and refusal of the selectmen to do so, they petitioned the county court at the December Term, 1855, to appoint commissioners to lay it.

Account. The plaintiff declared, “that the said John Walker was. bailiff to the plaintiff of a certain messuage or farm with the appurtenances belonging to the plaintiff, situated, lying and being in Townshend, in the county of Windham aforesaid, it being the plaintiff’s old hill farm, so called, from the 22d day of March, 1852, to the 22d day of March, 1853, and during the term aforesaid, by consent and agreement with the paintiff, the defendant had held and enjoyed the…

Appeal prom the Court op Chancery. The- Ml charged that the defendants on the 1st of August, 1850, owned-, or claimed to own a canal leading from Connecticut River above the village of Bellows Falls to the same river below said village, and also* lands adjacent to said canal; that the orator on that day .wanted to hire water-power and land whereora to erect ai building for mechanical purposes with machinery to be run by water-power, and the defendants agreed to grant the…

Ejectment. The declaration contained two counts, one for the whole and the other for the undivided half of a certain farm in Halifax. The action was referred and the referee reported the following facts: On the 30th of November, 1850, Ross Lamb, who then owned the premises sued for conveyed them to his sisters, Naomi Lamb the plaintiff, and Priscilla Lamb.

<p> Notice of non-acceptance of articles inferior to those contracted for. Auditor’s report conclusive as to fact¡ </p> <p>Where articles are manufactured and delivered which are inférior in some respecte to those contracted for, the person for whom they are manufactured must, if he declines to accept them, give notice of such non-acceptanóe to the other party within a resonable time.</p> <p>The report of an auditor conclusive as to every fact found which the testimony before him had a tendency to prove.</p>

<p> Covenant for quiet enjoyment implied in lease ; hut not extended by parol beyond the premises described by hnown or certain bounds. </p> <p>A covenant for quiet enjoyment against the lawful interruption of any party will be implied from a lease wbicb contains no express covenants, but in which, after the description of the premises, the habendum is as follows: “ to have and to hold, use, occupy, possess and enjoy in all the branches of husbandry and building thereon, as he, the said R., shall choose or may see proper, without interruption, for so long as wood grows and water runs, and to his heirs, executors, administrators, overseers, or any other person or persons that may represent him the said J. R.</p> <p>In an action on the covenants in a lease for quiet possession, if the demised premises are described by known or certain bounds, (as in this case by a town line,) it cannot be shown by parol that the parties intended, designated or recognized a differ* ent boundary, and thus extend the operation of the covenant to premises other than those described.</p>

Trustee process. In June, 1851, the plaintiff sued the defendant and caused to be attached certain property which the defendant claimed was exempt from attachment, and for the taking and detention of which he brought a suit against the plaintiff and one Kemper who was the plaintiff’s attaching officer.

<p>Assumpsit for money paid, &c. Plea, that the defendant made his petition under the late United States bankrupt law, February 3d, 1843, was declared a bankrupt March 21st, 1843, and obtained his certificate January 16th, 1844, and that the plaintiff's cause of action accrued before the defendant so became a bankrupt, and was provable under said act of bankruptcy. Replication, that the money paid out by the plaintiff for the defendant was paid after said discharge and certificate in bankruptcy; without this that the cause of action accrued to the plaintiff before the defendant became a bankrupt, or was provable under said act of bankruptcy. Rejoinder, that the money was paid by the plaintiff in respect to a debt which accrued due from the defendant to the plaintiff before the discharge and certificate in bankruptcy, and that the causes of action did not accrue after said discharge and certificate. Trial by the court, April Term, 1856, — Underwood, J., presiding.</p> <p>The plaintiff proved that he and the defendant on the 26th of January, 1842, signed a note to N. & H. Hadley, as co-sureties for Anson Barber; that the plaintiff paid out on said note after the 15th of March, 1845, as such surety, the sum of two hundred and fifteen dollars. It appeared also in evidence that the defendant, on the 16th of January, 1844, pursuant to regular proceedings in bankruptcy, in the district court for the district of Vermont, was duly discharged and received his certificate. Upon this testimony the court decided that the proceedings in bankruptcy were a bar to the plaintiff’s action, and rendered judgment for the defendant. Exceptions by the plaintiff.</p> <p>The county court decided the bankruptcy a sufficient bar upon the decision in Mace V. Wells, 7 Howard 275. But that was a Case of surety v. principal. The surety was liable contingently upon the contract, which gave him a fight to prove bis contingent claim under the fifth section United States bankrupt act upon the implied assumpsit, arising out of the privity of contract, at the time their relation commenced.</p> <p>The present is an action by -one surety against his co-surety for contribution for money paid in which there was no privity of con» tract in an ordinary sense ; Bearing v. Earl of Winchelsea, 3 Bos. ■& P. 270; Batchelder v. Fish, 17 Mass. 468. No implied ass'umpsit; Garrol v. Edwards, 3 Bos. & P. 268.</p> <p>Until payment there was no claim, absolute or contingent. After payment his claim for contribution arose against his co-surety, not from any privity of contract, but from a “fixed principle of justice,” based upon the relation in which the two sureties stood to each other; 1 Story’s Eq. Juris., secs. 492 — 3; 4 John. Ch. •332.</p> <p>The liability of a co-surety to contribute is not a claim before payment, but merely a possibility and cannot be proved before the commissioners, and if not, the certificate in bankruptcy cannot be a discharge for an after payment; Birge on Surety 488 ; Chitty on Contracts 523 ; Wallis v. Swinbourne, 1 Exch. 203 ; Goss v. Gibson, 8 Hump. 197 ; S. C. 9 U. S. Dig. 66, sec. 20; Bennett v. Bartlett, 6 Cush. 225; S. C. 13 U. S. Dig. 81 *■ sec. 51; Dunn v. Sparks, 1 Carter 397 ; S. C. 13 U. S. Dig. 81, sec. 58 ; Bale v. Warren, 2 Red. 94; S. C. 12 U. S. Dig. 81, sec. 15 ; Clements v. Langley, 5 B. & Ad. 372; Thompson v. Thompson, 2 Bing. 168; Woodward v. Hubert, 24 Maine 358 ; Ellis v. Ham, 28 Maine 385.</p> <p>Swain was a surety within the fifth section of the United States bankrupt law, and might have proved his demand against Barber; not having done so he is barred ; Mace v. Wells, 7 How. U. S. 274; Crofts v. Mott, 4 Corns. 603; Wood v. Dodgson, 4 Maul. & Selw. 195.</p> <p>When Swain & Barber executed this note to N. &. H. Hadley, they became as between the Hadleys and themselves joint debtors, but as between themselves, Swain was surety for Barber for one-half the debt, the very thing he now claims to recover ; Orofts v. Mott, 4 Corns. 603.</p>

<p>Assumpsit upon a promissory note for thirty-three dollars and eighty-one cents signed by the defendant and payable to the plaintiff. Plea, the general issue; trial by jury, April Term, 1856, — Underwood, J., presiding.</p> <p>The plaintiff introduced the note declared on, which, it appeared from the defendant's testimony, was given for the amount of one Newell’s indebtedness to the plaintiff, and for which the said Newell gave to the defendant Ms note, at the same time the noite in suit was given to the plaintiff. The defendant offered to show by his own testimony that the plaintiff came to him a short time before the note was given and said he had an account against Newell, and that Newell was offended with him and did not calculate to pay it; and wanted to know if the. defendant could help him to collect it; that it was arranged that the defendant should go to Newell and make him think the plaintiff was going to sue him; and that he accordingly did so, and advised him to settle with the plaintiff and save cost, and told him if he would, he', the defendant; would assume the debt; that Newell agreed to do so, arid they met for that purpose, and that in order to make Newell think it was a bona fide transaction between the plaintiff and the defendant, he wrote the note in suit, and one for the same amount for Newell to sign to him, both of which were signed and delivered; that there was a perfect understanding between the defehdant and the plaintiff that the defendant was not to be called upon to pay his note* unless Newell paid his, and that Newell’s note to the defendant was to be the plaintiff’s, and that no part of the Newell Bote had ever been paid, and that Newell was dead.</p> <p>To this testimony the plaintiff objected and it was excluded by the court, to which the defendant excepted. No other testimony being introduced the jury returned a verdict for the plaintiff</p> <p>It is competent for the defendant to show, by parol, a want or failure of consideration to the note ; and any testimony tending to show that fact is admissible; 1 Greenl. Ev., secs. 284, 304 5 Chitty on Contracts, (6th Am. Ed.) 27-8.</p> <p>The evidence excluded by the court below tended to show a want of consideration.</p> <p>The transaction was a mere gratuity on the part of the defendant, and the note of Gillett was given, as the testimony tended to show, merely to blind Newell’s eyes, so that Gillett might stand the better chance of realizing something from Newell. To a note given under such circumstances, the want or failure of consideration is a full and complete defense; Mill v. Buckminster, 5 Pick. 391 ; Hawley v. Beeman, 2 Tyler 242 ; Sowles v. Sowles, 10 Vt. 181; Holley v. Adams, 16 Yt. 206.</p>

Boon accouNT. The plaintiff’s account was for one barrel of furniture varnish, in reference to which the auditor reported the following facts: In May, 1854, one Folsom, a traveling agent of the plaintiff, called upon the defendant at Brattleboro, for the purpose of selling varnish. The defendant was then using Tilden’s varnish, which cost him two dollars and seventy-five cents per gallon, which Folsom examined.

Action on the case. The first count in the declaration alleged that from March 1835, to March 1841, (during which period the present towns of Windsor and West Windsor constituted one town only by the name of Windsor,) the defendant, Edgerton, was town clerk of said Windsor; and that on the first day 'of May, 1835, the said Edgerton, being indebted to George Curtis and Edward Curtis in the sum of two thousand dollars, executed and delivered to them his promissory note for…

Trustee process. The county court, December Term, 1856,— Underwood, J., presiding, — upon the report of the commissioner, adjudged Azro White chargeable for a silver watch in bis possession belonging to the principal defendant, and for tbe sum of twelve dollars due from him to the principal defendant, to which the said Azro White excepted. The ground of his exception is sufficiently stated in the opinion of the court.

Debt on a judgment recovered at the term of the county court for the county of Windsor, held on the fourth Tuesday of May, 1854. The defendant, Wooster Downer, who alone defended, plead mil iiel record payment, and other pleas as hereafter stated, upon which issues of fact were joined. Trial by jury, May Term, 1856, — Undeiiwood, J., presiding. The plaintiff introduced the record of the judgment declared on and rested.

Debt on a judgment recovered in favor of the plaintiffs against the defendant at the May Term, 1854-, of the Windsor county court.

Trespass for that the defendant, with force and arms, seized, 'took and carried away foity-two and one-half gallons of alcohol and one cask, all of the value of seventy-five dollars, of the property, goods and chatties of the plaintiffs, and converted the same to his own use, &c. The defendant plead several pleas, the fourth of which alleged, after the actio non, as follows: “ That three persons, to wit, Harvey W. Ellis, Daniel E. Gay and John H. ’Kimball, legal voters in…

Petition foe a ceetioeaei. The supreme court having at their March Term, 1856, upon the petition of the town of Woodstock, made an order in the present case as reported in 28 Vt. 587, and which is sufficiently set forth in the opinion of the court at the present term, the cause was, in pursuance of said order, heard by the county court at their May Term, 1856, — Undee-wood, J., presiding,— when the following facts appeared in addition to those reported by the commissioners…

Bastardy PROSECUTION. This was a proceeding commenced by a complaint of the plaintiff to a justice of the peace, setting forth that Marcia Ann Lewis, a single woman, had been delivered of a bastard child, with the support of which the town of West Windsor was chargeable, and had neglected for more than thirty days after the child was born to charge any person with being the father, &c.; upon which complaint a warrant issued, upon which the said Marcia was apprehended, and,…

The town of Windsor pleaded that the said order of removal of said David Sanderson, his wife, Maryonette Sanderson, and his children, David Warren, Julia Alvira, and Henry Harrison San-derson, was unduly made, because they said that the said town of Windsor was not, at the time of making said order, the place of the legal settlement of the said David Sanderson and his said family.

Appeal prom the Court op Chancery. The bill alleged that on the 23d of November, 1829, Benjamin Tupper, then of Barnard, was the owner in fee of a certain farm of land in said town of Barnard, which he had before that time purchased of his father, Ellis Tupper, of said Barnard; and that on said 23d of November, 1829, the said Benjamin, for the expressed consideration of one thousand dollars, executed and delivered to the said Ellis his mortgage deed, or deed of defeasance of…

Debt on a bond for two hundred dollars dated May 29th, 1854.

Assumpsit upon a promissory note. Pleas, the general issue, a discharge in bankruptcy, and the statute of limitations. To the plea in bankruptcy the plaintiff replied a new promise; and to the plea of the statute of limitations the plaintiff replied, that the defendant was absent from, and resided without this state at the time the cause.of action accrued, and that he had not been within this state six years, nor had known attachable property within the state since that time.

Trover for certain hides and leather. Plea the general issue; trial by jury, December Term, 1856,— Underwood, J., presiding.

Collins from Sharon to Cabot, made December 23d, 1854. Plea, unduly removed, and that the pauper had not come to reside in Sharon, which pleas were traversed. Trial by court by agreement of parties, December Term, 1856,— Underwood, J., presiding.

Ejectment for lands in Chester. The defendant, Israel Brooks, did not appear; Clark Brooks plead the general issue, which was tried by the court at the December Term, 1856,— Underwood, J., presiding, — when the following facts appeared: The plaintiff, Leafy Ingals, formerly Leafy Brooks, held a note against the defendant, Israel Brooks, dated November 13, 1845, for ninety dollars, and interest.

Ejectment for pew No. 32 in the congregational meetinghouse in Springfield; plea, the general issue, trial by jury, December Term, 1856,— Underwood, J., presiding.

Assumpsit. The declaration counted upon two promissory notes.

Action on the case for so negligently setting fires upon the defendant’s land, for the purpose of clearing the same, that thereby the plaintiff’s coal upon his land, adjoining that of the defendant’s, was burned. Plea, the general issue; trial by jury, December Term, 1856,— Underwood, J., presiding.

Assumpsit on an agreement in writing, signed by the defendant, which was as follows: “ Whereas, Chester Baxter has this day given a receipt for three two-years-old colts, one tliree-years-old colt, one bay mare and colt, seven cows, one hundred and thirty-one sheep and forty-four this spring lambs, six oxen, one two-years-old stag, one dry cow, one three-years-old stud colt, three two-years-old cattle, which receipt runs to Daniel Emery, who attached said property on a suit…

<p> Liability of officer for personal property attached by leaving copy in town cleric's office. Validity of receipt for property attached given by the nominal plaintiff, when the suit is for another’s benefit. </p> <p>The liability of an attaching officer to have the property attached forthcoming, that it may be taken in execution, is the same where hay, grain, &c., is attached by leaving a copy of the writ, &c., in the town clerk’s office, as it would be had the officer taken the property into his actual possession.</p> <p>If he do not produce the property when demanded upon the execution, he will he liable for it, unless he show that his inability to produce it has happened without any fault on his part.</p> <p>A receipt for property attached given to the officer by the nominal plaintiff and another will not discharge or release the officer from his liability to have the property forthcoming when demanded on the execution, if the suit was commenced and prosecuted for the benefit of another party.</p>

Action on the case to recover damages for injuries received by the plaintiff as a railroad passenger of the defendants. The writ originally issued against Charles 0. Whitman and John E. Thayer, as co-defendants with Smith, but as to them there was a non est return.

Debt ON a íuscognizanoe. The plaintiffs declared that in a suit pending in the county court, for the county of Orange, in favor of J. & J. H. Peck & Co. against John Merrill as principal defendant, and the plaintiffs as his trustees, on the third Tuesday of January, 1853, the defendant in said court “ acknowledged himself to owe and bound unto each of the plaintiffs in a recognizance in the sum of one hundred dollars, being in all to the said plaintiffs the sum of four…

Book account. The plaintiff’s account was for teaching school for the defendants for twelve weeks, commencing in December, 1854, at one dollar and seventy-five cents per week. The auditor allowed the plaintiff’s account as charged, and ■ respecting her certificate of qualifications he reported that she produced before him a certificate, which read as follows: “ Warren, Vt., December 1, 1854.

Covenant. The declaration counted only upon a covenant of seizin in a deed from the defendant to the plaintiff.

Appear from Chancery. The orator’s bill was brought to foreclose the defendant’s interest in equity, under a contract between him. and one Jacob Davis, to redeem it. certain piece of land which the orator alleged had been conveyed to him by the said Jacob Davis.

Petition eor a mandamus. • The ground of the application and the facts proved in the case, sufficiently appear in the opinion of the court, which was delivered by

Trespass for taking a quantity of goods and a horse. Plea, the general issue, with notice that the defendant Smith, as deputy sheriff, attached the property as that of Samuel S. Kimball, by direction of the defendant Cooper, the attorney of the creditors of said Kimball, and that the property belonged to said Kimball, &c. Trial by jury, June Term, 1855,— Underwood, J., presiding.

Writ or review. The defendant plead that “ after judgment was recovered by him, the said Joslyn, against the the said Barnard and Watson, by default as set forth in the plaintiffs’ said writ of of review, and before the commencement of said writ of review, to wit, on the 28th day of February, 1852, at Barton, in the county of Orleans, the said Barnard and Watson paid to the said Joslyn the sum of fifty-eight dollars and seventy cents in full satisfaction and discharge of…

Assumpsit. The original declaration contained only the general money count. In the county court the plaintiff filed additional counts declaring upon a parol submission alleged to have been made by the plaintiff and the defendant of certain controversies between them respecting the moneys paid by each of them towards the purchase of certain lands owned by them in Brown-ington to the arbitrament of one Harry Bingham, and an award made by him thereon.

Trover for a quantity of hay, grain and potatoes. Plea, the general issue. Trial by jury, June Term, 1856,— Underwood, J., presiding.

Action on the case for deceit in exchange of horses. Plea, the general issue; trial by jury, June Term, 1856,— Underwood, J., presiding.

Assumpsit on a note dated May 1st, 1854, for one hundred dollars, signed hy the defendants, and payable to Daniel Mead or bearer, in one year from date, with interest annually. Plea, the general issue; trial by the court, December Term, 1856,— Pol- and, J., presiding.

The orator in his bill alleged that on the 4th day of May, 1850, %e, being the owner of the following described land, to wit: the northerly half of the southerly third, and the southerly half of the middle third of lot number sixty-five in the township of Newark, in the county of Caledonia, supposed to contain one hundred acres, be the same more or less, of the value of four hundred dollars, contracted with Horace F. Ross, then of East Haven, in the county of Essex, to sell…

Trespass guare clausum fregit Plea, the general issue and license. Trial by jury, June Term, 1855,— Poland, J., presiding.

Appeal erom the Court of Chancery. The oratrix in her bill alleged that on the loth of December, 1853, she intermarried with, and was then the wife of the defendant, Joseph Gould; that before her marriage, on the 20th of February, 1850, she bargained with one Marcus A. Taylor for a piece of land in Hardwick, containing about one and one-fourth acres, on which there was a dwelling house, barn, and the necessary out-buildings for a family, for the sum of seventy-five dollars ;…

Assumpsit. The declaration contained the general counts. Plea, the general issue ; trial by jury, June Term, 1856,— Pol- and, J., presiding.

Assumpsit for work and labor. The plaintiff being a minor prosecuted the action by his next friend. Plea, the general issue; trial by jury, June Term, 1856,— Poland, J., presiding.

Assumpsit on promissory note, dated April 25, 1853, payable in one year from date to Daniel N. Beckwith or order, and endorsed by him to the plaintiff. Plea, the general issue; trial by jury, June Term, 1856,— Poland, J., presiding. The plaintiff produced the note declared on and proved its execution and endorsement.

Book account. The plaintiff claimed to recover an account which accrued in his favor in the year 1852, and up to the 13th of July, 1853, which the auditor allowed with interest at fifty-four dollars and eleven cents, subject to the opinion of the court upon the following facts : On the 17th of July, 1854, the plaintiff commenced an action on book account against the defendant, returnable before Merrit Newhall, a justice of the peace, at Kirby, on the 25th of August…

Book: account. Among the items of the plaintiff’s account was a charge for “ cash on land trade,” in reference to which all that appeared in the auditor’s report was, that he was “.not satisfied that the minds of the parties ever met as to price, but from the testimony of other witnesses he learns that the land was well worth forty dollars at the time, and therefore allows that sum.” The auditor reported specially in reference to several other items in both the plaintiff’s…

It was conceded that the pauper was chargeable to the town of Waterford at the date of the order, and in reference to her settlement the following facts were agreed upon : The pauper was the daughter of Nathaniel Foster, who was the son of Joel Foster, who removed from the state of New Hampshire into Fayston with his family about the year 1811, and lived there three years.

In this case, a verdict was returned for the plaintiff, with damages assessed, on the issue joined upon a plea of not guilty, and for the defendant on the issue growing out of a plea of the statute of limitations. The verdict was taken, subject to the opinion of the court, on the law arising upon the facts proved, and was to stand, be altered or amended, and judgment rendered thereon, or set aside, and a new trial granted, according as that opinion might be.

<p>The facts in this case are sufficiently stated in the opinion of the court. The cause was argued at a previous term by</p>

<p>Bill in Chancery, the nature and object of ■which are sufficiently stated in the opinion which was delivered by</p>