Volume 30 — Vermont Reports

Book Account. The auditors allowed the plaintiff’s account as presented by him, which did not include any of the items connected with the Carty suits and notes hereinafter described. In regard to the defendant’s account, which was for the amount of the Carty notes, the auditors reported the following facts : One Weller, residing in the state of New York, commenced a suit in the Chittenden county court against one Carty, and employed the plaintiff as attorney therein.

General Assumpsit. Plea, general issue, and trial by jury, November Term, 1856, — Peck, J., presiding.

Trial by the court. The plaintiffs claimed to recover upon a bill of exchange for five thousand dollars, drawn by J. & J. II. Peck & Co. on H. W. Catlin, dated June 12,1854, and payable to the order of the intestate at the Union Bank, N. Y., forty-five days after date, indorsed by the intestate to Eoelofson, Hatch & Co., by whom it was also indorsed. The signatures of the parties to the bill were admitted.

This was an action of trespass for some rubber shoes. Plea the general issue, and trial by jury, November Term, 1855, and verdict for the plaintiffs. . The claim was for eight cases of rubbers out of fourteen cases received of the plaintiffs by R. Batchelder and B. Towsley, in June, 1851, at the store of the latter, in Burlington, Vfc, who then conducted a wholesale and retail business in boots and shoes, under the firm of Batchelder & Towsley.

Replevin for the schooner Waterwitch. The plaintiff was described in the writ as a resident in the state of New York.

Replevin for three hundred and sixty-eight barrels of flour. The cause, by consent of the parties, was referred to Hon. Hiland Hall, to be decided by him according to law; and by the terms of the reference, the referee was to make a special report to the court, and judgment to be rendered on the report by the court as on a special verdict.

Trustee Process. The writ in this case was dated March 24th, 1856, and described the principal defendant as a resident of Shelburn, in this state. The officer’s return, after stating a service upon each of the trustees in the usual manner, added, “ and on the 18th day of October, 1856,1 left at the last and usual place of abode of the principal debtor, Wm.

Assumpsit. Plea, the general issue, and tidal by jury, at the November Term, 1856.

Assumpsit for the breach of a contract to transport a quantity of peas from Yercheres, in Canada, to New York. The cause was referred to a referee, who reported the following facts: The plaintiff, on and after the 14th of November, 1855, was a dealer in produce, and resided in Montreal. The defendant, at the same time, was a forwarder and common carrier by means of a line of boats, from Montreal to New York.

<p> Process. Imprisonment for debt. Pleading. </p> <p>Where, in an action on contract, the proper affidavit has been duly filed, that the defendant is about to abscond, etc., and the writ has issued against and been served on his body, the execution follows the writ, and may issue against the body without filing a new affidavit.</p> <p>The affidavit which the statute requires to be filed previous to the issue of a writ in an action on contract, as a capias, need not aver in direct terms that ihe defendant is indebted to the plain tiff; nor is it necessary that it should state definitely the amount of property secreted by him. It is sufficient if it aver that he has property secreted, etc., sufficient to satisfy the demand on which the suit is brought.</p> <p>In scire facias against bail for a defendant arrested on mesne process in an action on contract, the declaration must allege that the execution issued against the body of sueli defendant. It will be insufficient if it merely allege that the writ was so issued and served.</p>

Indictment for burglary and tbeft, against Francis X. Brunelle, John Robert, Joseph Monac, Henry Robert, Joseph Parker and Samuel Thibeau. Plea, not guilty, by each of the respondents, and trial by jury, at the November Term, 1857, — Bennett, J., presiding.

Indictment for a nuisance in 'tbe obstruction of a public highway.

Assumpsit for money paid. Plea, the general issue, and trial by jury, at the November Term, 1857, — Bennett, J., presiding. This action was brought at the March Term, 1853, and on this trial it appeared that in 1851, the plaintiffs were severally sureties for the defendant upon two notes to the Bank of Montpelier, amounting to three hundred and seventy-five dollars, and one to the Farmers’ and Mechanics’ Bank, in Burlington, for five hundred dollars.

This was an action of trespass for breaking and entering the plaintiff’s close and conducting the water away from the plaintiff’s pump logs. The case was referred, and the report of the referee shows the following facts, which constituted the trespass complained of. The plaintiff owned and occupied about three acres of land upon the south side of a certain highway in the town of Sheldon. The plaintiff’s land was bounded on the north by the south line of the highway.

This was assumpsit upon a note for one hundred and ten dollars and forty-four cents. Plea, the general issue; trial by jury, at the December Term, 1856, — Peck, J., presiding. The plaintiffs proved the execution and delivery of the note at the time of its date, to A. Burr or order, payable at the St. Albans Bank, on the 1st of December, 1855; and that Burr indorsed and delivered the note to the plaintiffs in the usual course of business, and before the note became due.

Assumpsit upon a guaranty indorsed upon a note for three hundred dollars, signed by one Erastus Bliss, dated October 25, 1849, and payable to the defendant or bearer on demand, with interest.

Trespass for a horse. Plea not guilty, and trial by jury, at the December Term, 1856, — Peck, J., presiding.

Assumpsit upon a promissory note, dated January 8, 1847, for eleven hundred and nine dollars, signed by the defendant and payable to the plaintiff’s intestate. Trial by jury, at the December Term, Í856, — Peck, J., presiding. The defendant’s testimony tended to show that for two years previous to the 8th of January, 1847, he had been a partner with Gardner G. Smith and John Smith in the foundry business.

Replevin for a bull. The defendant avowed that on the 22d of September, 1852, he took the bull in question while damage feasant in his close, and impounded him. The plaintiff plead to the avowry that the fence inclosing the close in question, other than and besides the fence adjoining the highway, and the fence which the plaintiff was bound by law to make and repair, was not a legal and sufficient fence.

Assumpsit on a promissory note for four hundred dollars, dated November 13, 1848, signed by Gardner G. Smith and the defendant, and payable to the plaintiffs ten days from date. Plea, the general issue, and trial by jury, at the June Term, 1856, — Peck, J., presiding.

Book Account. The following facts were found by the auditor. The plaintiff’s account was for services rendered by him as attorney for the defendants, in a suit brought by One Mott against Reynolds, the collector of the defendants, to recover damages for the seizing and selling by said collector, of Mott’s property in the collection of a tax assessed by the defendants against said Mott.

This was an action on a replevin bond. Plea the general issue, and several special pleas and issue thereon taken. The plaintiffs gave in evidence certified copies from the town hook of records of the town of Rutland, by which it appeared that at their March meeting, held on the first Tuesday of March, 1854, Isaac Gibson was elected second constable of the town of Rutland for the year ensuing.

<p> Writ of error. Exceptions. </p> <p>Decisions of the county court upon questions of law not appearing upon the record in any other way than hy means of exceptions, not signed hy the presiding judge, nor filed within thirty days from the rising of the court, can not be revised hy the supreme court upon a writ of error.*</p> <p>The only mode of allowing exceptions and passing causes to the supreme court upon them, is that prescribed by section 44 of chapter 28 of the Compiled Statutes.</p> <p>But questions of law apparent upon the record by means of a report of auditors, or the pleadings, or placed there by the agreement of parties, may be revised in the supreme court by writ of error although no exceptions are filed in conformity with section 44 of chapter 28 of the Compiled Statutes. Reotieed, Ch. J.</p>

Replevin for a cow. The defendant filed the following avowry: And for a ftu-ther plea in this behalf, the said defendant by leave of the court here for this purpose first had and obtained according to the form of the statute in such ease made and provided, well avows the taking, detaining and impounding said light red cow, in said declaration mentioned, and justly, etc., because, he says, that at the time of said taking-, detaining and impounding, to wit, on the 25th day of…

Assumpsit. The plaintiff’s writ and declaration were brought in his own name, and with no allegation that he was under guardianship.

<p>[in chancery.]</p> <p> Oreditor’s lien. Trustee process. Attachment. Railroads. </p> <p>An attaching creditor, after an agreement with the debtor and other attaching creditors not to enter his suit in court, delivered the writ, the service of which had never been completed by leaving a copy with the debtor, to the clerk near the close of the term, and the name of the general attorney of the debtor was entered on the docket by the direction of the attorney for the plaintiff without any previous authority from him, though he had notice of it shortly afterwards. The suit was continued at the first term without the consent of the debtor or his attorney, and at the second term, the latter on learning the defect in the service, caused his name to be struck from the docket in that cause, after which the debtor was defaulted and an execution issued against him. Held, that under these circumstances the creditor had no lien upon the property attached by him.</p> <p>A railroad company whose personal property had been attached and receipted by C., executed a lease to C. of all its property for a rent reserved therein, with a stipulation that C. might also hold the property as security for his liability as receiptor, and C. went into possession of the property under this lease. The orators then brought a suit at law against the company, and summoned C. as trustee, and had at the time of bringing their bill recovered judgment against the company, but their suit was still pending as to the trustee. Subsequently to the commencement of the orators’ suit at law the officer who had made the original attachment of the property took it out of C.’s hands as receiptor, and at the same time attached it on the suit of other creditors of the company. Held, that whether the lease to C. was valid or not, the claim of the orators to tire property by virtue of their trustee process was superior to that of the subsequent attaching creditors, and the officer was decreed, after satisfying the attachments made previous to the orators’ trustee process, to deliver the surplus to C. who was also decreed to disclose its amount as effects to respond to the orators’ judgment.</p> <p>The right to build, own, manage and run a railroad and take the tolls thereon, is not of necessity of a corporate character or dependent upon corporate rights. It may belong to and be enjoyed by natural persons and there is nothing in its nature inconsistent with its being assignable. Bennett, J.</p>

<p> Conversion of the wife’s choses in action to possession by the husband. </p> <p>The mere delivery to the husband by the makers of a promissory note given for the purchase of the real estate of the wife, and payable to her or bearer, which the husband immediately afterwards delivers to the wife, who thereafter retains the same in her possession, does not constitute such a reduction of the note to possession, by tlie husband as divests the property of the wife therein.</p> <p>To constitute such a reduction to possession of the dioses in action of the wife, the husband must do some positive act to reduce them, to his own possession.</p> <p>Where an agreement was made by a married woman, with the assent of her husband, with the makers of a promissory note, given to the wife for her land, deeded to them by her and her husband, that they should furnish her family with goods and apply them upon the note; held, that such articles as were delivered to the family,-under this agreement, constituted a payment upon the note; but dliter as to goods delivered by the order of the husband to persons not members of the family.</p> <p>Held also, that the burden of proof was on the makers of the note, when defendants in action thereon, to show what goods were delivered to the family.</p>

Assumpsit upon the following order: “July 26, 1850 — Gentlemen: For value received pay Messrs. Jones & Dow the balance due in money on final estimate of Sec. 8 R. D. R. & B. R. R., also transfer to them all the stock due me on said work. Patrick Higgins.” The case was referred, and the referee reported that the order was assigned for a valuable consideration, and was accepted by the defendants.

<p>Debt upon a judgment of a justice of the peace. The pleadings and facts in the case sufficiently appear from the opinion of the court. The county court,— Pierroint, J., presiding,— at the September Term, 1856, rendered judgment for the plaintiff. Exceptions by the defendant.</p> <p>The property attached was so insignificant as to, preclude the idea of ownership in the defendant and lead to the suspicion of fraud. Beach v. Abbott, 6 Yt. 586.</p> <p>The replication does not aver that the defendant comes within the excepting clause of the statute of limitations. Such a replication is a discontinuance. 1 Chit. Plead. 618; 7 Cranch 156; Story’s Plead. 55; 1 Saunders 338.</p> <p>Cited Lapham v. Briggs, 27 Vt. 26 ; Graves v. Weeks, 19 Yt. 178; Comp. Stat. 379 sec. 14.</p>

Trover for twenty cords of wood; plea, the general issue, and trial by jury. It appeared from the evidence that the wood in question was cut by the defendant for his firewood, on a farm which he was occupying at the time, as the tenant of one Fairman.

Case against a sheriff, in two counts: the first for not keeping property attached by him to respond to the judgment, and the second for neglecting to make a minute upon the execution of the time when he received it for collection. Plea, the general issue, and trial by jury, at the September Term, 1857,— Kittredge, J., presiding.

<p>Appeal from the decision of commissioners on the estate of Sarah Stearns, deceased. The facts in the case sufficiently appear from the opinion of the court.</p> <p>1. The plaintiff’s plea to the declaration in offset is sufficient. The plea alleges that the notes became and were the property of the husband during the wife’s lifetime. This is admitted by the demurrer.</p> <p>A note payable to the wife does not belong to her administrator if the husband survives the wife, unless the consideration of it was the wife’s real estate. 12 Pick. 173 ; 8 Mass. 229 ; 1 East 432 ; 17 Vt. 626; 2 Conn. 566; 24 Vt. 121.</p> <p>2. A plea in offset is a matter of defense to another suit and not an independent proceeding. Hence, if the original suit be in any manner disposed of, either by a discontinuance, nonsuit, by a demurrer or anything whieh defeats it, the offset falls with it. 11 Mass 206; Allen v. Rice, 22 Vt. 333.</p> <p>1. The notes pleaded in offset were the property of the intestate and passed to her administrator. They are themselves, in the absence of other evidence, proof that her estate furnished the consideration for them. Phillislcirh v. Pluckwell, 2 M. & S. 395 ; Richardson v. Daggett, 4 Vt. 336; Driggs v. Abbott, 27 Vt. 580 ; Holmes v. Holmes, 28 Vt. 765.</p> <p>2. The amount due upon the notes should have been allowed in the present proceeding. Comp. Stat. 351 sec. 10 — 354 secs. 23, 24.</p> <p>The plaintiff having 'presented a claim it became the administrator’s duty to exhibit the notes in offset. This gave the commissioners and the appellate court jurisdiction of both claims, and section 10 of the Compiled Statutes required them to decide upon the entire indebtedness between the parties. Allen v. Rice, 22 Vt. 333, is a case of abandonment on the part of the claimant, and is not analogous to the case at bar.</p> <p>The fact that the plaintiff’s claim on book was adjusted by an auditor renders it no more difficult for the jury “ to find, generally, the sum in arrear from either parly,” than in other cases where the jury adjudicate upon both claims. In the one case the jury act upon the finding of the auditor as to the plaintiff’s claim, and in the other upon their own, and in either case “ the sum in arrear" is the basis of the verdict.</p>

<p>Assubipsit for money had and received. Plea, the general issue, and trial by jury.</p> <p>Alanson Allen, one of the plaintiffs of record, was introduced as a witness by the plaintiffs, and testified that in April, 1852, the plaintiffs were indebted to one John Dewey, and that the defendant brought Allen a note in the defendant’s favor against Dewey, dated December 19, 1851, which note the testimony introduced by the plaintiff tended to show had previously been paid by Dewey to the defendant, and told him that Dewey wished the plaintiffs to take up the note, and that, supposing it all right, he took it from the defendant and paid him the amount of it out of the plaintiffs’ company funds. Allen on cross-examination expressly denied that he ever told Judge Kittredge that he did not know how he came in possession of the note. The plaintiffs’ testimony also showed that about two years after this transaction and before the commencement of this suit, the plaintiffs dissolved their partnership, and Allen assigned to tlie co-plaintiffs all his interest in all the affairs of the firm, and took a bond of indemnity for his security against all claims against the company.</p> <p>The defendant testified that Dewey paid him the note in March, 1852, but denied that Allen either took the note from him or paid him anything thereon.</p> <p>The defendant called the plaintiff Adams as a witness, and asked him if he had not said to Marcus B. Dewey, a son of John Dewey, “ that Allen told him that he did not know how he came by the note in question,” to which Adams replied in the negative. This question and answer were objected to by the plaintiffs, but the objection was overruled by the court, to which the plaintiffs excepted.</p> <p>The defendant then called Marcus B. Dewey, who, against the plaintiffs’ objection, was allowed to testify and did testify, substantially contradicting Adams’ testimony. To the admission of Marcus B. Dewey’s testimony the plaintiffs excepted.</p> <p>It further appeared that after Allen had assigned his interest in the firm to the other plaintiffs, Judge Kittredge, in whose hands the plaintiffs’ claim against the defendant had been left as an attorney for collection, had a conversation with Allen in regard to how he obtained possession of the note, and the defendant offered Judge Kittredge as a witness to prove the statements then made to him by Allen on that subject. The plaintiffs objected to the testimony of Judge Kittredge on this subject on the ground that such statements were privileged. The court overruled this objection and admitted Judge Kittredge’s testimony as to Allen’s statements to him. Exceptions by the plaintiffs.</p>

Trespass for a wagon ; plea, the general issue, and trial by the court, at the September Term, 1857,— Kittredge, J., presiding.

Trover for a pianoforte. Plea, tlie general issue, and trial by the court, at the March Term, 1857,— Kittredge, J., presiding. Held: That the necessity of the statute was not an absolute but a qualified necessity. 2. That it was such a necessity as originally induced the owner in good faith to purchase it for domestic use. 3. That the law did not favor the invasion of the domestic board. 4.

Assumpsit upon a guaranty. Plea, the general issue, and trial by the court, at the September Term, 1857,— Kittredge, J., presiding. The guaranty was signed by the defendant, and was in the following words: “ I will see this made good to H. O. Perkins,” and was indorsed upon the following order : “ Give H. Adams forty dollars. “ To H. O. Perkins.

Assumpsit for the work and labor of Barney McCann, the minor son of the plaintiff. Plea, the general issue, and trial by jury, at the March Term, 1857,— Kittredg-e, J., presiding.

Assumpsit upon a promissory note for one hundred dollars, signed by the defendant, and payable to the plaintiff on demand. Plea, the general issue, and trial by jury, at the March Term, 1857,— Kittredge, J., presiding. The following facts appeared on trial: Samuel Taylor, the husband of the plaintiff, died a short time before the note was given, having notes and an account against the defendant, and the defendant had a note and an account also against Taylor.

Covenant. The following facts were agreed upon by the parties: The defendant executed a deed of certain land in Brandon, dated October 3, 1837, with a covenant of warranty, to Oliver E. Lawrence, and Lawrence, on the 11th of March, 1841, deeded the same land to the plaintiff with a similar covenant.

These were all actions of assumpsit, the first upon the guaranty hereafter described; the second upon the indorsement by the defendant Conant, of a promissory note or bond, so called, of the Rutland and Burlington Railroad Company for one thousand dollars, dated July 1st, 1850, and payable to the defendant or order at Boston in four years from date, with interest payable semiannually ; and the third upon an indorsement by the defendants, D. Warren & Co., of another bond of…

Ejectment. Plea, the general issue, and trial by the court, at the September Term, 1857,— Kittredge, J., presiding. On trial the plaintiff proved that the defendant was in possession of one acre of the land described in his declaration.

Debt on judgment. Trial by the court. The action was originally brought before a justice of the peace, and was appealed. The original declaration described a judgment rendered in favor of the plaintiff against the defendant, on the 29th of May, 1837, and one dollar for four executions, signed J. G. Newell, Justice Peace.

Book Account. The defendant plead in bar, that previous to the bringing of this suit, one William Gilman brought liis action before a justice of the peace against these plaintiffs as principal defendants, and against this defendant as trustee; that judgment was rendered against the defendants for the sum of sixty-four dollars and eighty-four damages, and the sum of three dollars and fifty-eight cents costs, from which no appeal was taken ; also, that judgment was rendered…

Trespass for two sleighs. Plea, the general issue, with a notice of special defense under tire statute. The case was referred, and the referee reported that the defendant took and sold the sleighs in question, as collector of school district No. 1, in Mount Tabor, by virtue of a warrant for the collection of a tax laid by that district against the defendant.

Assumpsit upon the common counts. The plaintiffs filed a specification setting forth two notes in favor of the plaintiffs against William Wheeler & Co., and payable at the office of the defendants, upon which judgments had been rendered against Wheeler & Co., and claimed to recover the amounts due thereon at the date of the transfer from Wheeler & Co. to the defendants of their real estate, etc., as set forth below.

<p>Book Account. The plaintiff’s account was entirely composed of charges for professional services as an attorney and solicitor, and advances of money in suits in which the defendant was a party.</p> <p>The following facts appeared from the auditor’s report:</p> <p>The plaintiff was elected by the town of Castleton, their agent to prosecute and defend suits in which that town was interested, and accepted the office for the years 1850-1-2 and 1854, and Chester Spencer was elected to and accepted the same office for 1858, 1855 and 1856.</p> <p>A large portion of the plaintiff’s account was for services and expenses in a suit in chancery in favor of the defendant against the Rutland and Washington Railroad Company. This company were, in the early part of February, 1850, engaged in the constuction of a railroad in the village of Castleton, and were about to turn the course of a certain stream running through that village.</p> <p>At a town meeting of the inhabitants of Castleton, duly held on the 20th of February, 1850, for the purpose of taking action in regard to this proposed alteration, two resolutions were adopted, by the first of which, the town of Castleton objected to the proposed turning of said stream, and, by the second, the selectmen and agent of the town were “instructed to take legal measures to gain redress or prevent such turning of the stream by the railroad company, and prosecute such measures, if by law there was any redress or prevention.”</p> <p>The plaintiff was present at this town meeting, and took an active part in procuring the adoption of these resolutions by the town, and made a speech in favor of them while they were under consideration; in the course of which he said, in reply to the objection that the proposed legal proceedings to prevent the turning of the channel of the stream would occasion large expenses to the town, that the town would be successful in them, and would not have any costs to pay, and would be put to no expense in the matter, and that he would indemnify or clear the town from all expenses which would be occasioned by those proceedings, for six cents. At the time of the adoption of these resolutions, there was a general expectation on the part of the inhabitants of Castleton, that the expenses incident to the proposed legal proceedings would be paid or refunded to the town by the Rutland and Whitehall Railroad Company. But it did not appear that this expectation was authorized by anything which was said or done by the plaintiff, who then was one of the directors of the Rutland and Whitehall Railroad Company. Almon Warner, the then town agent, and the selectmen of Castleton, acting under these resolutions, immediately after they were adopted, retained Messrs. Foot & Hodges, attorneys and solicitors at Rutland, as solicitors on the part of said town in the matter of the proposed legal proceedings, and caused a suit in chancery to be brought in the name of the defendant against the Rutland and Washington Railroad Company, for the purpose of procuring an injunction against the turning of the channel of the stream. This suit in chancery was commenced on the 25th of February, 1850, and was duly entered in the court of chancery in Rutland county, at the April Term next following.</p> <p>The plaintiff having been appointed at the annual March town meeting in 1850, as the agent of the town to prosecute and defend suits in which the town was interested, and, being an attorney and solicitor in chancery, appeared in the suit and took the principal charge and care of the same, on the part of the town, from the time it was entered in court until its termination. On the 30th of May, 1850, a supplemental bill was filed in the court of chancery, on the part of the town against the Rutland and Washington Railroad Company, with the approbation and at the instance of the proper authorities of the town, the object of which was to prevent the turning of the course or channel of a certain other stream near the village of Castleton, called Hubbard ton Bz-ook; the said railroad company being then about to turn the course or channel of the said bz’ook, for puz-poses connected with the construction of its railroad. The suit was continued and pending in court until the July Adjourned Term, in the year 1852, at which time, the railroad of the Rutland and Washington Railroad Company having been constructed without turning the course or channel of either of said streams, the suit was, by the mutual agreement of the parties interested, discontinued without costs to either party, and this disposition of the suit was made with the knowledge and approval of the selectmen of the town. It appeared that in May, 1851, the plaintiff presented an account to the selectmen of the town for cash paid out by him in the said chancery suit up to that time, amounting to twenty-eight dollars and forty-one cents, and that this account was audited and allowed by the selectmen, and an order was drawn by them on the town treasurer, in favor of the plaintiff for the same, which order was subsequently paid. It also appeared that in the spring of the year 1850, the selectmen of the town employed William B. Gilbert, an engineer, to make a professional examination in regard to the propriety and necessity of turning the channels of the said watez--courses, and to give his testimony in relation thereto, to be used in the chancery suit in favor of said town, and that one of the selectmen paid Gilbert ten dollars for his services, which was subsequently refunded to him by said town. It also appeared that the town had paid to Messrs. Foot & Hodges, who were solicitors on the part of the town in the chancery suit, from the commencement until the final disposition of the same, the amount of their account for services and expenses therein.</p> <p>It appeared that after Spencer was appointed the agent of the town to prosecute and defend suits in which the town was interested, in March, 1853, the plaintiff continued to take the charge and care of the suits or business of the town then pending in court, as attorney for the town, without any new employment by Spencer or any other officer of the town, but without objection on the part of Spencer or any other officer, and nothing was said by Spencer to the plaintiff in relation to the business which was then pending in court, or in reference to employing or continuing the plaintiff in, or dismissing him from, the care of the same.</p> <p>The items in the plaintiff’s account, charged in the years 1853, 1855 and 1856, were for services rendered during those years in suits in which the town was interested, and in which the plaintiff had taken part as attorney during the years that he had been town agent.</p> <p>The auditor allowed the whole of the plaintiff’s account, and, in computing the amount of the same, made annual rests therein, on the 1st of April in each year, and cast interest on the yearly balances up to the date of his report.</p> <p>The county court at the September Term, 1857, — Kittredge, J., presiding,— allowed all the plaintiff’s account as reported by the auditor, except the items of interest, which the court disallowed.</p> <p>Exceptions by both parties.</p> <p>cited on the question of interest Bates v. Starr, 2 Vt. 536; Gatlin v. Aiken, 5 Vt. 177; Raymond v. Johnson, 8 Vt. 261; Williams v. Finney, 16 Vt. 297; Porter v. Munger, 22 Vt. 191; Bradley v. Prait, 23 Vt. 378; 1 Swift’s Digest, 715.</p> <p>Cited, on the general question of the right of the plaintiff to recover, Boyden v. Brookline, 8 Vt. 284; Soule v. Dougherty, 24 Vt. 92; and on the question of interest, Ahhott v. Wilmot, 22 Vt. 437; Everts v. Nason, 11 Vt. 122; Hon (¡Mon v. Hazen, Bray ton 133; Newell v. Keith, 11 Vt. 214; 9 Pick. 3(!9 ; 1 Am. Lead. Cases, 499-510 ; Hoper v. Brinton, 8 Watts, 73 ; Haswell v. Farmer’s Mechanics’ Bank, 26 Vt. 100.</p>

<p> Pleading. Liability of railroad, companies for injuries caused by their neglect to fence their roads, or by their negligence in constructing them. </p> <p>In an action on the case against a railroad company, the declaration alleged that the defendants neglected to keep a suitable fence along their track, and that “ for want of such fence the plaintiff’s horse escaped from his pasture and went at large, and by means of going at large, as aforesaid, the horse was greatly injured, whereby an action, etc.” Held, that though this declaration might have been bad, on demurrer, it was sufficient on a motion in arrest of judgment after verdict for the plaintiff.</p> <p>It appeared that the plaintiff’s horse escaped in the night from his pasture on to the railroad track, on account of the want of a proper fence along the same, and was found in the morning a mile from the plaintiff’s land in a rocky pasture, seriously injured in the leg, and there was some evidence tending to show that this injury was received in the pasture where he was found. The court charged the jury that “ if they were satisfied from the evidence that there was a clear connection between the escape of the horse and the injury received, the plaintiff would bo entitled to recover.” Held,, that the charge was erroneous in not instructing the jury to distinguish between a direct and a remote connection between the want of a suitable fence and the injury, and that if they did not find a direct connection between the two, the plaintiff could not recover.</p> <p>The plaintiff’s cows passed from his field on to one H.’s land, which was occupied by H. and the plaintiff in common, and thence on to a piece of land belonging to the plaintiff, but which he had leased to the defendants as a wood yard, and from this wood yard, which was not properly fenced, on to the defendants’ track, where they were killed by the defendants’ cars. There was no express agreement between the plaintiff and defendants in regard to the exclusive occupancy by the latter of the wood yard nor in regard to who should maintain the fences around it. Held, in an action against the railroad company for killing the cows, that xtnder those circumstances the court should have left it to the jxxry to find whether the defendants were or were not to have the exclusive occupancy of the wood yard, and also whether the cows escaped from H.’s land into the wood yard through a defect in the fence which the defendants were bound to repair.</p> <p>As soon as railroad companies have opened the fields of an adjoining landholder for the purpose of constructing their road, they are bound to use all reasonable and prudent means to restrain the cattle of the land owner from straying on to the railroad track, and to prevent the irruption of other cattle into his lands from their line of road.</p> <p>Whether such prudent and reasonable means have been taken, whenever the question arises before the company commence running the road, depends upon the facts in each case, and is a question for the jury.</p> <p>The case of Clark v. Vermont and Canada Hailroad Company, 28 Vt. 103, on this point, explained and approved.</p>

<p>Appeal from the judgment of a justice of the peace. The action was trover for a heifer. The case was referred, and from the report of the referee the following facts appeared. On the first of May, 1849, the plaintiff let one Thomas Perkins have a cow, to be kept for one year, in good order, and then to be returned, either forward with calf, or with the calf by her side, and for the use of the cow, Perkins was to pay the plaintiff five dollars at the expiration of the year. In August, 1849, Perkins was released by the plaintiff from the contract, and Alvah Preston was substituted in his stead, who took the cow and paid the plaintinff the stipulated sum for the use of her.</p> <p>Before the expiration of the year, the cow had a calf, while in the possession of Preston, which was the heifer in controversy. The cow and calf remained in the possession of Preston until about the first of October, 1851, under an agreement that Preston was to keep the calf, for the use of the cow.</p> <p>The cow was then returned to the plaintiff, hut the calf remained in the possession of Preston until September, 1854, who claimed to own her. In the spring of 1853 Preston borrowed of the defendant ten dollars, and gave him a bill of sale of the heifer in dispute, and upon Preston’s failure to pay the loan, the defendant took possession of her and claimed to hold her under that title. The heifer was worth seventeen dollars when she was thus taken by the defendant, and she was kept by him until November, 1854, when he sold her for twenty-five dollars. It also appeared that in the spring of 1853, Preston borrowed of the plaintiff five dollars, and gave to him, also, a bill of sale of the same- heifer ; but the plaintiff did not know that the heifer was the one in controversy. The plaintiff did not take possession of the heifer, and she remained in the possession of Preston, until taken by the defendant, after which the plaintiff informed him that the heifer was his property. When inquired of by the defendant at that time, by what title he claimed the heifer, the plaintiff informed him that he claimed her by his bill of sale ; but the referees found that the heifer in question was the one which came from the plaintiff’s cow, that he was the owner of the calf when it was born, and that there was no evidence that he ever sold the calf to Preston. Before the defendant took the heifer into his possession, he was informed by Preston that the plaintiff had a bill of sale of her to secure five dollars, but that the five dollars had been paid, and that the plaintiff retained the bill of sale and would not give it up. The payment to the plaintiff of this loan of five dollars was proved on trial. It appeared, also, that the defendant acted upon such information received of Preston, at the time he took the heifer into his possession.</p> <p>The county court, at the September Term, 1857, — Kittredge, J., presiding, — rendered judgment for the plaintiff for twenty-five dollars and interest from the time the defendant sold the heifer.</p> <p>Exceptions by the defendant.</p> <p>The possesion and apparent ownership of the heifer in question, was never in the plaintiff. It was continued ia Preston from its birth to the time the defendant took possession. It was claimed and treated by Preston as his own. The plaintiff also treated it as Preston’s, by taking a bill of sale and claiming a title solely under that. Notice of this was given to the defendant, both by the plaintiff and by Preston, and on this fact he relied. Therefore, the plaintiff is estopped from asserting another and different right.</p> <p>The report does not show that the plaintiff knew that Preston had practiced any fraud upon him, until after his interview with the defendant. Up to that time lie supposed the heifer pledged to him was really the heifer of Preston.</p>

<p>Assumpsit upon a promissory note, The facts in the case sufficiently appear in the opinion of the court.</p>

Book Account. The following facts appeared from the auditor’s report: In the latter part of May, 1853, the defendant went to Shafts-bury to buy fence posts to be used on the Albany Northern Railroad. He met the plaintiff at the depot in Shaftsbury, and asked him if he had any chestnut fence posts to sell. The plaintiff replied that he had, and the parties thereupon went out upon the depot grounds where the plaintiff liad a quantity of posts which they then examined.

Ejectment for four acres of land in Manchester. Plea, not guilty, and trial by the court, at the June Term, 1857, — Kittred&e, J., presiding.

The bill set forth that the defendant had obtained a judgment against the Rutland and Burlington Railroad Company, and that he had taken out execution thereon and levied it upon the capital stock of the company, and caused the same to be sold, and that the orator purchased at the sheriff’s sale twenty-four thousand three hundred shares, and paid the money to the sheriff, who had duly returned the execution partially satisfied; that the defendant took from the office of the…

Trespass for a quantity of wood. The case was referred, and the referee reported the following facts: On the 17th of November, 1854, a written contract was made between Nelson Ingraham and Joseph P. Parkhurst, by which the former agreed to cut one hundred and fifty cords of wood for the latter, on a wood lot belonging to one Kidder, and to deliver a portion of it of a certain quality and size at Parkhurst’s shop, and the remainder at Joseph Ramsdell’s mill-yard, piled up in…

Assumpsit. Plea, the general issue, and trial by the court, at the September Term, 1855, — Underwood, J., presiding. The plaintiff read in evidence a note of three hundred and fifty dollars, signed by the defendant, dated July 1st, 1840, and payable to Wm. H. Williams on demand, and the following guaranty, dated Aug. 9th, 1841, and signed by the testator, who was the father of the defendant. “ Whereas my son-in-law, Bev. Wm. II. Williams, holds a note against my son, Wm.

<p>The only question in this case related to the liability of the trustee. The case was referred to a commissioner, who reported the following facts:</p> <p>The defendant, on the 2d of May, 1854, being insolvent, made an assignment of all his property, both real and personal, to the trustee, Chapin, in trust, for the benefit of his creditors. The trustee accepted the trust and took possession of the property desscribed in the assignment. The property assigned was subject to several attachments at the time of the assignment, but before the service of the writ in this case upon the trustee, he had paid all the debts upon which these attachments had been made, out of the avails of the property assigned to him. . At the date of the service of the writ upon the trustee he had converted nearly all the property into cash, and at that time and at the date of the commissioner’s report, the trustee had in his hands, from the avails of the assigned property, a sum large enough to pay the plaintiff’s claim against the defendant, which was subject to no other encumbrance or trust, except those created by the assignment.</p> <p>The commissioner found that the assignment was made and executed in compliance with the statute of 1852, relating to assignments.</p> <p>The plaintiff insisted that the assignment was a general assignment, and therefore null and void. But the county court, at the April Term, 1856, — Underwood, J., presiding, — discharged the trustee. Exceptions by the plaintiff.</p> <p>The act of 1843 is not repealed by that of 1852 by implication. There is no repugnancy between the two, and it is a well settled principle, that unless there be a repugnancy, plain and unavoidable, between the new provisions and the former statute, the new enactment does not repeal the former one. Foster’s Case, 11 Coke 56-63, a-, Stone v. Green, 3 Hill, 472; Isham v. Bennington Iron Company, 19 Vt. 372.</p> <p>The act of 1852, is merely cumulative. In such case the prior act is not repealed. Wood v. United States, 16 Pet. 341; Davies v. Fairbain, 3 How. 577.</p> <p>The assignment was general and made pursuant to the act of 1852. The suit is brought upon the ground that the statute of 1843, which prohibits all general assignments, is still in force, as the act of 1852 contains no repealing clause.</p> <p>The whole subject matter being revised by the latter statute, it will operate to repeal the former by implication. 8 U. S. Digest, page 337 ; 9 id. page 406; 10 id. 399 ; 11 id. 425; 14 id. 538 ; Leighton v. Walker, 9 N. II. 59 ; Isham v. Bennington Iron Company, 19 Yt. 230-249.</p> <p>The act of 1852- embraces all assignments by debtors for the benefit of creditors. See section 1. It embraces every assignment. See section 2. It provides for the inspection of the assignment by all creditors. See section 5. This act is treated as a general one by the act of 1855 upon the subject of assignments. Acts of 1855, page 15.</p>

Trover for a sum of money and two promissory notes, hereinafter described. The case was referred and the referee reported the following facts : In'February, 1851, the plaintiff and her sister Priscilla made an agreement with the defendant, their nephew, to give him all their property both real and personal, and he promised to maintain them though life and pay all their debts, including those of their brother Ross Lamb, which they had previously assumed.

Book Account. The auditor reported that the plaintiff’s account was for advertising in his newspaper a patent churn under the following circumstances: In April, 1853, Gardner C. Hall was the owner of a patent churn, and procured the plaintiff to advertise it in his newspaper from April 1, 1858 to October 1, 1854, in Hall’s name.

Assumpsit for tlie labor of the plaintiff’s minor son, in the service of the defendant. The case was referred, and the referee reported as follows: The plaintiff, who lived in Jacksonville, sent his minor son to one Martin, in Bennington, with directions to Martin to hire him out at his discretion.

Assumpsit for money paid. Plea, the general issue, and trial by the court, at the April Term, 1857, — Underwood, J., presiding. It appeared on trial, that a promissory note of one hundred dollars, was executed by both of the defendants and signed by the plaintiff as surety. The note was solely for the benefit of the defendant, Thayer. Wait was in fact merely a surety, and this fact was known to the plaintiff, though it did not appear upon the face of the note.

This was an action on the case for slander in six counts. The first and second counts set forth the words complained of as having been spoken by the defendant of and concerning the plaintiff and his profession of physician and surgeon as follows: “ I will bet you (meaning the said Abijah Mnzzey and other persons with whom the defendant was then and there conversing) anything that the doctor (meaning the plaintiff) sells liquor, (meaning spirituous and intoxicating liquor)…

Indictment in three counts for highway robbery, an assault with intent to rob, and an assault with intent to kill, respectively, upon the person of Michael Baldwin. Plea, not guilty, and trial by jury, at the April Term, 1857,— Underwood, J., presiding. The prosecution contended that the charge of highway robbery was substantiated against the respondent by the following circumstances, which were proved at the trial.

Assumpsit, originally brought before a justice of the peace and appealed by the trustee to the county court. The appeal was entered in the county court at the September Term, 1855, at which term, the judgment of the justice against the principal defendant was affirmed, and a disclosure was filed by the trustee denying his liability, and a commissioner was appointed.

<p>Book Account. This action was originally brought before a justice of the peace by the plaintiff and his wife, to recover for the services of the latter before her marriage. The wife testified at the trial before the justice, but died after the appeal and the entry of the case in the county court, and her death was suggested on the record prior to the hearing before the auditor. The defendant objected before the auditor that the plaintiff had no right to prosecute the suit after the death of his wife; but the auditor decided that this was not a proper question for his consideration, and proceeded to audit the accounts of the parties.</p> <p>The plaintiff offered himself as a witness, and the defendant objected; but the auditor admitted his testimony, to which the defendant excepted.</p> <p>The plaintiff then offered to prove by himself and other witnesses, what his deceased wife testified to at the former trial, to which the defendant objected, but the testimony was admitted and the defendant excepted.</p> <p>The plaintiff offered in evidence the deposition of Nancy Closson, taken to be used in this case before the justice, to the admission of which the defendant objected on the gronnd that the notice of the taking of the deposition appeared, by the officer’s return thereon, to have been served by reading only, and not by copy ; but, upon the plaintiff’s proving that the deposition was used before the justice without objection, the auditor admitted it, to which the defendant excepted.</p> <p>The county court, at the April Term, 1857, — Underwood, J., presiding,— overruled the exceptions to the auditor’s report, and rendered judgment thereon for the plaintiff.</p> <p>Exceptions by the defendant.</p>

General Assumpsit. Plea, the general issue, and trial by jury, at the April Term, 1857,— Underwood, J., presiding. The plaintiff read in evidence, on trial, a promissory note, dated April 20, 1852, for one hundred and twenty-five dollars, signed by the defendant, and payable to the plaintiff on demand with interest, with an indorsement thereon, under the date of May 25,1852.

Replevin for a cow. The defendants, afier the suit had been in court three ter,ms, moved to dismiss the action because the writ did not require the officer, who served the same, to take, and the officer did not take a bond with more than one surety, and because the bond was not conditioned for the return of the cow. The court overruled this motion to dismiss, to which the defendants excepted.

This was an action on the case brought to recover penalties for obstructing a highway in the town of Londonderry, and founded upon section 44, of chapter 23, of the compiled statutes. The defendant pleaded the general issue, and also á special plea in bar, to the latter of which the plaintiff demurred generally. The material portions of the declaration, and the special plea, are sufficiently set forth in the opinion of the court.

Ejectment for a piece of land in Putney. Plea, tlie general issue, and trial by jury, at tlie September Term, 1856, — Underwood, J., presiding. The plaintiff put in evidence a deed from David Leavitt to Mercy Steele, dated September 12, 1822, of a tract of land in Putney, containing forty acres, and also a deed of the same land from the administrator of Mercy Adams’ estate to the plaintiff, dated March 27 th, 1850.

The facts in the case sufficiently appear in the opinion of the court.

Audita Querela. The complainants alleged that the defendant brought an action returnable before one Hall, a justice of the peace, on the third Monday in May 1853, against Davis, principal debtor, and Johnson, trustee, that Davis being absent from the state and having had no notice of the suit, it was, on the return day, in the absence of justice Hall, continued by another justice to the 30lh of May, 1853,' when, it was continued by justice Hall to the fourth Monday in…

Assumpsit. This case was referred, and the referees reported the following facts: The defendant failed in 1846, at which time he was indebted to the plaintiff to an amount exceeding one thousand dollars, for which the defendant had executed to the plaintiff three notes.

Book Account. The auditor reported the following facts: The plaintiff’s account amounted to forty-six dollars and four cents, and was for three thousand eight hundred and thirty-seven feet of basswood hoards. The plaintiff had a quantity of basswood logs at a saw-mill in Putney, which he sold by parol to the defend'ants, at twelve dollars per M. feet, hoard measure.

Assumpsit. Plea, the general issue, and trial by jury, at the April Term, 1857, — Underwood, J., presiding. It appeared on trial that the plaintiff, the defendant, and their brother, Horton Holbrook, inherited certain real estate from their grandfather. At the time of the circumstances hereinafter detailed, Horton Holbrook had been long absent from Vermont and had not been heard of for ten or twelve years, and both the plaintiff and the defendant supposed him to he dead.

Trover, for a cask of gin. Plea, the general issue, and trial by the court, at the December Term, 1856, — Underwood, J., presiding.

Trustee Process. The following facts appeared from the trustee’s disclosure: In August, 1840, the defendant married Clarissa Bemis, then a widow with one child.

Trespass for breaking and entering the grist mill and shop of the plaintiffs in Reading, and taking therefrom certain machinery and other property, and for remaining there a long time, injuring the building and the personal property therein, and hindering the plaintiffs in their business, etc. Plea, the general issue, and a notice of special matter in defence, setting forth a justification under process as hereinafter mentioned.

The bill was brought to compel the defendant to pay out of certain trust funds in his hands, a just proportion of the expenses of the support of Azuba Simons, an insane pauper. It appeared that the town of Sharon had for several years been chargeable with the partial support of'Azuba Simons, an insane pauper, whose legal settlement was in that town. The annual expense of her support was from fifty-six to sixty dollars.

Assumpsit. The questions in this case related solely to the liability of the trustee. The case was referred to a commissioner who found and reported the following facts : From April, 1852 to February, 1854, the trustee carried on the tin-ware and stove business, at White River Village, in his own name, and ostensibly solely on his own account, hut in fact the defendant was equally interested with him in|the business.

Indebitatus Assumpsit for money paid. Plea, the general issue, and trial by jury, at the December Term, 1856, — Underwood, J., presiding.

Assumpsit to recover of the defendant three assessments upon ten shares of the plaintiffs’ capital stock, for which the defendant had subscribed.

Book Account, being an appeal from the decision of the commissioners upon the intestate’s estate.

This was an action on the case in two counts, for the alleged neglect of the defendant Aikens, as town clerk of the town of Barnard.

This was an appeal from an order of removal of one Mary Thomas, a pauper, with her three children, from the town of Reading to the town of Weathersfield, made by two justices in 1851. Plea, that the pauper was unduly removed, because her last legal settlement was not in Weathersfield, and trial by jury, at the May Term, 1857, — Underwood, J., presiding. It appeared that the pauper was the widow of one Anson F. Thomas, who was born April 15, 1806 and died in 1850.

Debt upon a judgment. The declaration set forth that one Britnell, at the June Term, 1851, of the supreme court in Windsor county, recovered a judgment against Amos Warren and Paul Howe, for three hundred and fifty-eight dollars and sixty cents debt, and one hundred and seventy-two dollars damages, and fifty-two dollars and eighty cents costs; and also recovered judgment in the same suit against the defendant Amos W. Warren, who was summoned therein as trustee of Amos…

The hill was dated December 17, 1847, and set forth that on the 1st day of December, 1843, the orators, together with George S. Coffin and Perley S. Coffin, were the owners of a certain woollen factory, with Water privilege and other appurtenances; that the defendant owned a piece of land adjoining their factory; that the defendant agreed with the orators and the other owners of the factory, to give them the privilege of digging and forever maintaining a ditch on the…

Book Account. The following facts appeared from the auditor’s report: In 1853, the defendant made a contract with Harvey Bruce, who, with the plaintiff' Winslow, owned the saw mill where the work charged in the plaintiff’s account was done. By this contract, Bruce, who had the entire management and control of the mill, agreed, for the period of two years, to saw hemlock and basswood lumber for the defendant, at certain stipulated prices.

The questions in this case have reference solely to the liability of the trustees, and the rights of the claimant. Ephraim Thayer was summoned as trustee, and also entered as claimant. The case, shortly after it was entered in court, was, in the ordinary mode, under the statute of 1853, on motion of the plaintiff’s counsel, referred to a commissioner to take disclosure of the trustees, and other proofs, according to the provisions of the statute.

Appeal by the orator from the decree of the court of chancery dismissing his bill. The facts of the case are sufficiently disclosed in the opinion of the court. -for the orator.

General Assumpsit. The defendant pleaded, first, the general issue; second, that the plaintiffs had already, at the March Term, 1846, of the court of Common Pleas, in the comity of Grafton, and state of New Hampshire, recovered judgment of the defendant upon the same cause of action as that upon which this suit was brought.

Trover for a quantity of goods. Plea, tlie general issue, and trial by jury, at the January Term, 1857, — Underwood, J., presiding.

Assumpsit. The case was referred, and the referees reported the following facts : In the fall of 1854, the plaintiff purchased a large quantity of corn, a part of which he intended to feed out to his poultry, and a part he designed to keep on hand for future sales, contemplating a rise in the market.

Indictment for peijury in an answer to a bill in chancery. The indictment set forth that Moses Buchanan, 2d., on the 15th of January, 1856, exhibited his certain bill of complaint, in writing, against the respondent and others, naming them, in the court of chancery within and for the county of Orange, then being in session at Chelsea, which bill was directed to the chancellor of the second judiial circuit of the State of Vermont; that the said Buchanan in said bill of…

Book Account. The auditors reported the following facts: On the 19th of June, 1852, the son of the plaintiff, then about sixteen years old, under a parol agreement made tliat day between the plaintiff and the defendant, and with the approbation of the son, went to live with the defendant until he should be twenty-one years old, the defendant agreeing to give him three months schooling each year, to clothe and support him in sickness and health, and at the expiration of his…

Assumpsit on a note dated March 5,1852, for sixty-five dollars, payable to the plaintiff in four months from date, with interest annually, and signed by the defendants. Plea, non assumpsit, and trial by the court, at the January Term, 1857, — Underwood, J., presiding. It appeared on trial, that before the maturity of the note in question, the defendants became insolvent, and that the plaintiff offered to sell the note for thirty-five dollars.

Book Account. The only question raised in this case, related to the validity of a tender which the defendant claimed to have made to the plaintiff, and in regard to which the auditors reported the following facts: Before the commencement of the suit, the plaintiff, on one occasion, was at a saw mill in Thetford, with his team, and was about starting from there for home, when the defendant, with one Dodge, •came near where the plaintiff and his team were, and said to him, as…

Case for the neglect of one Salisbury, the defendant’s constable, to serve a writ in favor of the plaintiff against one Hall. Plea, the general issue, and trial by jury.

Iu this case, a commissioner was appointed who reported the following facts : The defendant, Vose, taught school for the trustee, under a contract, in regard to the validity of which the only question was in relation to the obtaining, by Vose, of a certificate from the town superintendent of schools in Randolph.

<p> Husband and wife. Wife’s earnings. </p> <p>A wife who voluntarily and witliout good reason lias, for a considerable period, lived apart from her husband, and has supported herself without any assistance from him, may, if the husband does not previously claim her earnings, receive them herself, and after they have boon paid to her, the husband can not recover them of the person from whom they wore due.</p>

Book Account. The plaintiff’s account amounted to eighteen dollars, and was for the labor of Bobert Cahill, the plaintiff’s minor son, for the defendant, from the 1st of April, 1856, to the 19th of May, 1856. The auditor reported the following facts: In the spring of 1856, Bobert Cahill, then being eighteen years old, agreed with the defendant, without the plaintiff’s knowledge, to work for him upon his farm for six months, at fourteen dollars per month.

Case for the disturbance of the plaintiff, in the use and occupation of a pew in the Union Meeting House, in Randolph. Plea, the general issue, with a notice of special matter in defence, to the effect that the defendant Granger, as collector of the association to whom the meeting house belonged, sold the pew to the defendant Cheedle, for the collection of a tax against it, laid by said association. Trial by the court, at the June Term, 1857, — Underwood, J., presiding.

Trover for a horse. The case was referred, and the referee reported the following facts: The plaintiff, on the 1st of January, 1854, sold the horse in question, at Wells River, to one McLeran^ then residing at that place, for one hundred and ten dollars, with the condition that it was to remain the plaintiff’s property until paid for. In March, 1854, McLeran paid the plaintiff thirty dollars towards the horse, being the only payment made by him.

Assumpsit for money paid. It appeared on trial, that the plaintiff had paid a judgment rendered against himself, the defendant, and one Burnham, in favor of one Stevens, together with certain charges of the officer for the expenses of keeping the property attached in said suit.

Assujipsit for the breach of a contract by the defendant, to carry on the plaintiff’s saw mill. The defendant filed a plea in offset, but this plea was not filed so early as was required by the rules of the court where the cause was tried.

Case for obstructing a watercourse upon the plaintiff’s farm.

Assumpsit for the breach of a written contract to convey certain real estate. Pica, the general issue, and trial by the court, at the March Term, 1856, — Poland, J., presiding. On trial, the plaintiff read in evidence the following written contract, and proved its execution by the defendant.

Indictment for subornation of perjury. Plea, not guilty, and trial by jury, at the March Term, 1858, — Barrett, J., presiding.

This was a petition to foreclose a mortgage, executed by the defendant to the orator, to secure the payment of a note for four thousand dollars, given by the former to the latter. It appeared from the master’s report, that in the summer of 1851, the defendant applied to James T. Thurs-ton, to negotiate for him a loan of four thousand dollars, to be secured by mortgage on real estate.

Assumpsit upon a written contract, which, with the facts in the case, appears in the opinion of the court. The county court, at the March Term, 1857, — Poland, J., presiding, — rendered judgment for the defendant, to which the plaintiff excepted. I. The decision of the court below, that the legal effect of the contract required the plaintiff to call for the corn in a reas'onable time, is an error. 1.

Case. The first count of the declaration alleged that the plaintiff was the owner of a farm lying on the bank of Winooski river, the current of which had so run, that it was thrown away from his farm on to the other bank, until the defendants, in constructing their road, in order to build a bridge across the river, erected two piers in the stream, and thereby obstructed the natural and ancient channel, and turned the current directly against the plaintiff’s farm, the effect…

Assumpsit. Plea, the general issue, and trial by jury, at tlie September Term, 1856, — Poland, J. presiding.

Case for an injury to the wife of the plaintiff, David Barton, occasioned by an alleged defect in a highway, in the town of Montpelier.

This was an action of covenant broken. ' The declaration alleged that the defendant, on the 12th of May, 1853, conveyed to the plaintiffs a certain piece of land in Waterbury, and in his deed covenanted that the premises were free from all incumbrances ; that Oramel Howe was the owner of the land on the 1st of April, 1853, at which time it was set to him in the grand list of that town; that certain school and state taxes were assessed against Howe, on the land in question,…

<p> Insurance. Waiver of preliminary proof of loss. </p> <p>Notwithstanding the conditions of afire insurance policy require the insured to furnish the insurers with a notice and sworn proof of the loss within a specified time after its occurrence, still, if the insurers make no objection to the want of that particular form of proof, but proceed to reject the claim of the insured wholly upon other grounds, they will be regarded as thereby waiving a compliance with the requirements of the policy in that respect.</p>

<p>[in chancery.]</p> <p>Recognizance for writ of review.. Trustee process. Promissory notes. Costs.</p> <p>If judgment Re rendered against an absent defendant without personal notice, the fact that no recognizance for a writ of review was taken, does not affect the regularity of the judgment, hut merely maltes it irregular to issue an execution thereon.</p> <p>Therefore, if an action against an absent defendant be brought by way of the trustee process, the trustee, if adjudged chargeable, will be protected in whatever payments he may make to the plaintiff in accordance with such judgment, notwithstanding' no recognizance for a writ of review was taken.</p> <p>The statute requiring notice to the maker of a promissory note of its transfer, in order to protect it against trustee process, contemplates actual personal notiee, and not notice by mere legal implication, as, for instance, if the note is secured by mortgage, by the record in the town clerk’s office of the assignment of .the mortgage and the note.</p> <p>It appeared that two notes secured by mortgage were, together with the mortgage, assigned by the payee before their maturity. The maker of the notes, shortly after such assignment and before he received any actual notice thereof, was trusteed by a creditor of the payee, and adjudged chargeable for the amount of such creditor’s claim. In his disclosure he claimed that an account in his favor against the maker, which by agreement was to be applied upon the notes, but which had not been indorsed, should be treated as a payment thereon, and it was accordingly deducted, together with his costs, from the first note, and he was adjudged trastee for the balance, and also for a sufficient portion of the second note, then not due, to make up the balance of the creditor’s judgment. The trustee paid the amount of the judgment to the creditor. The orators, who derived their title to the notes from the assignee, brought a bill of foreclosure upon the mortgage after the maturity of the first note, but before the last one became due. Held, that the mortgagor, not having received actual notice of the assignment of the notes before he was trusteed, was properly adjudged chargeable, and that whatever he had paid on the judgment against him as trustee, as well as his costs, should be treated as a payment upon the notes; but that he could not set up his account against the payee as a payment upon the notes, as against the orators, whose title to the notes was that of bona fide holders for value before maturity.</p> <p>Held, also, that as the orators had failed in the main purpose of the bill which was to obtain a decree for the whole amount of the notes, and as the defendant, when the second note became due, tendered the orators a sum sufficient to pay all which was in fact then due from him upon the mortgage, which they refused to accept, therefore the orators should not be allowed any costs, and the defendant should be allowed all his costs after the date of the tender.</p>

Assumpsit upon a promissory note for two hundred dollars, signed by the defendants, and payable to Flotilla Campbell, or bearer, in one year from date, with interest annually after possession should be given of certain land that day deeded by the payee to the defendant Moulton. The declaration also contained the common counts. Plea, the general issue, and trial by the court, at the September Term, 1856, — Poland, J., presiding.

Case for diverting water from the plaintiffs’ mills in Montpelier.

<p>This case was referred to a commissioner who proceeded on the 28th of December, 1854, to take the disclosure of the trustee, and to hear the proofs offered by the plaintiff and the claimant,</p> <p>The claimant on that occasion protested that the commissioner had no authority in law to hear and pass upon his claim but that the same ought to be tried in the county court. The hearing of the cause before the commissioner was continued from time to time till March 10, 1856, when an additional commissioner having been appointed, the case was heard and the commissioners found and reported the following facts :</p> <p>In December, 1850, the defendant was in embarrassed circumstances, and in order to protect certain articles of his personal property from attachment, it was agreed between the defendant, the claimant, (to whom the defendant was then and still is indebted,) and the trustee, that a fictitious sale of this property should be made in the name of the claimant to the trustee. Accordingly the claimant executed to the trustee a bill of sale of said property, dated December 16, 1850, and the trustee executed his note to the claimant for one hundred and ninety dollars. The trustee took possession of the property and has ever since had it under his control, and the note went into the hands of the claimant, who has ever since retained it. The commissioners found that there was no other consideration for this note than as above stated, and accordingly reported that the trustee was indebted to the principal debtor in the sum of two hundred and six dollars, being the value of the property so received by the trustee.</p> <p>The claimant offered to prove before the commissioner that the plaintiff was not, at the time of the hearing before them, nor at the commencement of this suit, a bona fide creditor of the defendant, but that the suit was commenced and prosecuted” by the plaintiff for the sole benefit of the defendant, and at the latter’s request, to enable him to reach the funds, claimed to be in the trustee’s hands, by the trustee process. The plaintiff objected to the admission of this testimony, and it was rejected by the commissioners.</p> <p>The county court, at the March Term, 1856, — Poland, J. presiding, — upon a hearing on the report, adjudged the trustee chargeable for the amount reported by the commissioners, to which the claimant excepted.</p>

<p>Ejectment. The plaintiff, O. W. Davis, owned the land in question until the 5th d ly of January, 1857, when he and his wife, who was then, as well as at the commencement of this suit, a minor, joined in a deed thereof to the defendant. The plaintiffs occupied the premises in question up to October, 1856, when the husband leased them to one Putnam, for five years from the 1st of April following, and they removed to another dwelling, a mile and a half distant, and did not afterward personally occupy the premises so leased. The lease to Putnam contained a proviso, that if the lessor sold the premises within a year, he might terminate the lease at the end of the first year. From October, 1856, to April, 1857, Putnam occupied the premises, paying no rent or service, except that he was to take care of certain personal property left there by the plaintiff, consisting of a yoke of oxen, some hay, oats, some potatoes in the cellar of the house, and some poultry, which remained on the'premises at the date of the plaintiff’s deed to the defendant. The plaintiffs had removed their household furniture from the premises in question before they made the deed to the defendant. It appeared that the plaintiffs did not own the premises to which they removed in October, 1856, nor any other land which they occupied between that time and the commencement of this suit. When the plaintiffs sold to the defendant, it was agreed that the defendant should take the lease to Putnam, and be entitled to the first year’s rent, if he could not agree with Putnam to quit possession at once, and the defendant did pay Putnam twenty-five dollars to give up the lease and immediate possession of the premises.</p> <p>The county court, — Aldis, J., presiding, — rendered judgment for the defendant. Exceptions by the plaintiffs.</p> <p>1. The plaintiffs were the actual and legal occupants of the premises in January, 1857. Putnam was a mere servant or agent of Davis, until April, 1857, as the lease did not take effect until that time. . Davis had the entire beneficial interest in the premises, was wintering his stock there, and had hay, oats, potatoes, etc., there. The arrangement was for the benefit and interest of Davis, it being the most beneficial way that the plaintiffs could occupy their homestead during the winter.</p> <p>The homestead act should receive a liberal construction, and a continual, actual, bodily occupation of the premises should not be required to constitute them a homestead.</p> <p>The lease from Davis to Putnam was void, because it was not executed by the husband and wife jointly.</p> <p>2. The deed from the plaintiffs to the defendant is void, because the wife was a minor, and has chosen to revoke it. The statute gives but one mode of alienating the homestead, and that is by the joint deed by the husband and wife. This, of course, means a valid deed.</p> <p>1. The conveyance by Davis and wife to the defendant, vested the title to the land in question in the latter.</p> <p>2. The premises were not, at the time of said conveyance, the homestead of the plaintiffs, because they were not occupied by them at that time, but had been leased by them to Putnam for the term of five years, and the terms of the lease will not allow the inference of any animus revertendi. True et ais. v. Estate of Morrill, 28 Vt. 672.</p>

Replevin. The action was brought to recover the possession of certain personal property which the plaintiffs claimed belonged to them, and which the defendant, as a deputy sheriff; had attached, and was holding as the property of another person.

This case was referred to a commissioner, who reported the following facts: The trustee, on the 29th of January, .1856, bought of the plaintiff a farm worth seventeen hundred dollars, for which he paid him. twelve hundred dollars, and took a warranty deed thereof. He bought the farm at the request of the defendant, who was his relative, for the latter to reside upon.

This was an action of covenant broken. The defendant pleaded, first, non est factum; second, the statute of limitations; third, that he had not broken the covenants mentioned in the declaration; and fourth, that he had kept and performed the same. The plaintiff joined issue upon all these pleas, and the case was tried by jury, at the June Term, 1855, — Underwood, J., presiding. The facts in the case sufficiently appear in the opinion of the court.

Case against the defendant, as sheriff of Caledonia county, for the default of his deputy, Charles S.- Martin, in not collecting an execution in the plaintiff’s favoz;, against one David Eldridge. Plea, the general issue and trial by jury at the June Term, 1857,— Poland, J., presiding. The facts of the case are stated in the opinion of the court.

Trustee Process. The facts are stated in the opinion of the court. The county court at the June Term, 1858, — Poland, J., presiding, — adjudged the trustee liable for the amount of the note in question, to which decision the claimants excepted.

The action was assumpsit. The writ was served by arresting the bodies of the defendants.

Case for falsely and fraudulently inducing the plaintiffs to give credit to one David B. Davenport. Plea, the general issue, and trial by jury, at the December Term, 1857,— Poland, J., presiding. It appeared on trial that the plaintiffs were publishers and booksellers in Boston, Massachusetts, and that the defendant was the town clerk and postmaster in Lowell, Vermont.

Assumpsit upon a promissory note, dated February 28, 1853, for three hundred dollars, payable in ninety days from date, and signed by the defendants and one Little, who died previous to the commencement of this action. The defendants Pearsons & Burnabee, made no defence. Prentiss plead the general issue, and the case was tried by jury at the June Term, 1857, — Poland, J., presiding.

Plea, that the pauper was unduly removed, because her legal settlement was not in the town of Derby, and trial by jury, at the June term, 1857, —Poland, J., presiding. It appeared on trial that Jedediah Richardson, the grandfather of the pauper, removed in the year 1807 from the town of Derby, where he had resided since 1798, and had a legal settlement, into Canada, taking with him his son Elias Richardson, then about fifteen years old.

The defendants pleaded that said paupers were unduly removed, because their legal settlement was not in the town of Salem, and trial by jury, at the June Term, 1857, — ■ Poland, J., presiding. The town of Derby claimed that the paupers had a settlement in the town of Salem, by reason of their having been resident inhabitants in that town at the time it was organized on the 30th day of April, 1822.

<p> Notice by mail. </p> <p>It is only by virtue of the law merchant that notice of the dishonor of a commercial instrument is held to be sufficient, if deposited at the proper time in the proper post-office, with the proper direction; and in cases not governed by the law merchant, but by the common law, whenever notice is required to be proved, notwithstanding the mailing of a notice, with a proper direction is prima facie evidence that such notice was received, yet this evidence is not conclusive, aud may be rebutted; and whether it has been rebutted or not, is a question for the jury.</p>

<p> Principal and Surety. Effect of surrender of a note by mistalee. </p> <p>If a note be delivered up to be cancelled by mistake, and the payee before its maturity notify the makers of the mistake, and that he still looks to them for payment of the note, he may recove- upon it, as well against a surety upon the note as the principal himself, provided the surety has not, prior to such notice, relying upon the surrender of the note, relinquished securities held by him to protect his liability upon the note.</p>

Ejectment for lot number eighteen of the third division in the town of Brunswick, containing seventy-two acres. Plea, the general issue, and trial by the court, at the March Term, 1858, — ■ Poland, J., presiding. The facts in the case sufficiently appear from the opinion of the court.

Case to recover damages sustained by the plaintiff, by reason of the alleged insufficiency of a highway in tfie town of Maidstone Plea the general issue and trial by jury at the March Term, 1868,. . — Poland J. presiding.

The only question in this case related to the liability of the trustee. From the commissioner’s report the county court found the following facts : The defendant held a note againstthe trustees on which was due, May 25, 1857, fourteen hundred ninety-eight dollars and ninety-three cents. H. M. Nichols failed on the morning of the 23d of May, 1857.

In the order of removal, which was made under the fourth section of chap. xviii. of the Comp. Stat., page 130, the pauper was adjudged to have come to reside in the town of Ryegate, to have become charge able upon said town, and to have his legal settlement in the town of Wardsboro.

Trespass for entering the plaintiff’s close and removing a house. Plea, the general issue, with a notice that the defendants would rely upon the fact that the house belonged to the defendants and that they had a right to remove it, etc. The case was tried by jury, at the June Term, 1857, — Poland, J., presiding.

Assumpsit for use and occupation of a part of a house in St. Johnsbury. Plea, the general issue, and trial by the court at the December Term, 1857, — Poland, J. presiding. Dr. Calvin Jewett, of St. Jobnsbury, died in December, 1853, leaving a widow and eight children.

This cause was tried by the court, at the June Term, 1858, Poland, J., presiding, upon the question of the liability of the trustee, and of the right of the claimants to hold any part of the funds in the hands of the trustee. The facts in the case sufficiently appear in the opinion of the court.