Volume 31 — Vermont Reports

The bill was brought on the 4th of April, 1857, and set forth that the Western Vermont Railroad Company, owning a railroad extending… Held: and informed them that they were unwilling that the road should be leased to the Troy and Boston Railroad Company ; that they understood that company to be irresponsible, and in any event an improper company to have the road, and that they wished the trustees to convene a meeting of the bondholders to ascertain their views in regard…

General Assumpsit, in which the plaintiff sought to recover upon a promissory note for two hundred dollars, dated June 13, 1853, signed by John Bradley, payable to the order of John Smith in three months after date, and indorsed by Smith and the defendants.

Trespass for assault and battery. The defendant Parmalee pleaded specially, in substance, that at the time of the alleged trespass the Vermont and Canada Railroad Company was lawfully possessed of a certain close in Essex, called “ Essex Junction Station,” and that he was their agent, having the custody and control thereof; that the plaintiff entered said close, and there remained against the will of the company and its agent aforesaid, whereupon Parmalee requested him to…

<p>Appeal from -the decree of probate court. The case was tried upon, the following agreed statement of facts:</p> <p>Cornelius P. Van Ness died in Philadelphia on or about the 15th day of December, 1852, having his domicil, however, in Washington, in the District of Columbia.- He left a will which was duly proved iu the proper court in Washington, in January, 1853, and administration, with the will annexed, was taken out there. On the 31st of January, 1855, an ancillary administration was granted on his estate by the probate court for the District of Chittenden in this State, and commissioners were appointed to adjust and allow claims against his estate, who made their report to the probate court on the 20th of January, 1857.</p> <p>The only claims allowed by the commissioners in addition to those of the plaintiffs, and one other resident of this State who did not appeal, were those of H. E. Berry, Francis A. Dickens and J. B. Monnot. Both at the time of the presentation of their claims before the commissioners, and at the date of the testator’s death, the residence of the several claimants was as follows : the plaintiffs all resided in Vermont, while Berry and Dickens were residents of Washington, D. C., and Monnot of New York city.</p> <p>The plaintiffs and the administrator objected before the commissioners to the allowance of the claims of the non-resident creditors, but the same were allowed, and the probate court decreed a distribution of the assets in the administrator’s hands pro rata among all the creditors whose claims were allowed by the commissioners, and from this allowance by the commissioners, and such decree of the probate court, the plaintiffs appealed.</p> <p>The testator’s estate was insolvent, both in Vermont and in the District of Columbia. The assets in this State to be distributed among creditors, amounted to twenty-two hundred dollars, and consisted of the proceeds of the sale of an equity of redemption in certain real estate in Burlington, in this State, made under the order of the probate court in Chittenden county. The debts allowed to creditors residing in Vermont amounted to about fourteen hundred dollars, while the amount of the allowances to nonresident creditors was three thousand five hundred and twenty-nine dollars and seventy-seven cents.</p> <p>The following statute of Maryland was in force in the District of Columbia at the time of the testator’s decease, and has ever since been the law there :</p> <p>“ In paying the debts of the deceased, an executor or administrator shaE observe the following rules: judgments and decrees against the deceased shaE be wholly discharged before any part of other claims ; after such judgments and decrees shall be satisfied, all other just claims shall be admitted to a distribution on an equal footing without priority or preference ; if there be not sufficient to discharge all such judgments and decrees, a proportionate division or dividend shall be made between the judgment and decree creditors, but no executor or administrator shall be bound to discover what judgments or decrees have been passed against the deceased, unless in the high court of chancery, or the general court of shore, or the court of the county, where the deceased last resided.”</p> <p>The general statute of the State of New York in regard to the distribution of estates among creditors, in force at the time of the testator’s death, and when the decree of the probate court was made in this case, was like the general statute of Vermont on that subject, as contained in the Compiled Statutes, before any alteration in the law was made by the statute of 1851. (Laws of 1851, No. 20, p. 12). But neither in the State of New York, nor in the District of Columbia, is there any statute on the subject of distribution in cases of ancillary administration.</p> <p>Upon these facts, the county court, at the November Term, 1857, — Bennett, J., presiding, — rendered judgment pro forma, affirming the decree of distribution of the probate court, to which the plaintiffs excepted.</p> <p>1. Previous to the passage of the act of 1851, page 13, laws of 1851, the law was well settled in Vermont that in ancillary administrations the commissioners had-no jurisdiction of any other claims than those of resident creditors, and that foreign creditors could not receive any dividend under such administration. Churchill v. Boyden, 17 Vt. 319; Hunt v. Fay, 7 Vt, 170; Eames v. Creditors of Eames, 4 Vt. 263; Vaughan v. Barrett, 5 Vt. 333; Porter’s Heirs v. Hey dock, 6 Vt, 874,</p> <p>2. The statute of 1851 is a proposition on the part of Vermont to alter the exclusiveness of the settled law in cases of ancillary administration, and to extend the benefit of an equal distribution of the property, found here, to the citizens of any other State, which in similar circumstances will do the same by our citizens.</p> <p>In other words, it is a proposition for a reciprocity treaty on the subject of the distribution of the property of certain deceased persons among creditors ; and it must be accepted by New York, and the District of Columbia, before the act will take effect upon the claims of creditors residing within those jurisdictions. The act only applies to creditors, citizens of a State, by whose laws. it appears that, in the case of an ancillary administration in such State, foreign creditors are permitted to share equally with domestic creditors in the assets undei; such ancillary administration, according to the amount of their respective claims ; that is, where it appears, that had the principal administration been 7¡.ere, and the ancillary administration there, creditors in this State would have shared equally with creditors there, under such ancillary administration according to the amount of their respective debts.</p> <p>In the case at bar it is plain that such is not the case either in New York or the District of Columbia, because neither of those jurisdictions have any other than a general'statute regulating the payment of debts of deceased persons. We have a similar statute in Vermont, providing in general terms for equal payment of all debts fro rata; but our courts have expressly held that this general act did not apply to ancillary administrations.</p> <p>If a special statute is necessary in Vermont to reach the case of ancillary administrations, is not a similar one equally requisite in New York and the District of Columbia?</p> <p>3. But if another and more narrow construction of the meaning of the proviso to the act of 1851 is adopted, viz : that it only requires that the property of the ¶articular deceased f arson in question in other jurisdictions shall there be applied to the payment of all his debts equally, even then the claims of the foreign creditors in this case can not be allowed or paid through our probate court.</p> <p>Not the New York claim; because the property of Mr. Van Ness in New York, if distributed among creditors at all by the courts of that State, must be distributed through an ancillary administration, and we have already shown that the common law has not been so altered in New York by any special statute, as to allow an equal distribution of property, found there, among all creditors under an ancillary administration.</p> <p>Not the claims from the District of Columbia ; because the law of Maryland, in force there, recognizes a “ fanciful preference” of judgment over simple contract debts, which is unknown to our laws, and which entirely prevents such an appropriation of the deceased’s property there, as under Vermont interpretation ^nd Vermont law can be called an “ equal distribution so that all liis creditors, here and elsewhere, may receive each an equal share in proportion to their respective debts.” The words “ in proportion to their respective debts ” mean in proportion to the amount of their respective debts, without regard to any “ fanciful preferences” founded on the character of the debt or the proof by which it is to be established.</p> <p>1. The statute of 1851 has abolished all right or claim of preference in behalf of resident creditors, and insists only upon equality with the foreign creditor.</p> <p>The proviso is designed merely for self-protection, in case this equal right may have been invaded in the other State. This proviso makes no reference, in terms, to the law of the foreign State, as furnishing a rule for administration in this State, but rather to the facts attending the foreign administration. The question under the proviso is, has the foreign creditor in fact secured a preference under the foreign administration over our own citizens; or, is the foreign law such that he must in fact secure such preference, in the particular case ? If equality has been secured under the foreign law in the particular case, why need we speculate as to what might have occurred under the law in some other case ?</p> <p>Thus the statute has framed into a law those obligations of natural equity, which are set forth by Redfield, Ch. J., in Churchill et al. v. Boyden; Mattocks, J., in Hunt v. Fay, Adm., 7 Vt. 189-90.</p> <p>2. In this case, the equality demanded by the statute has been in fact, secured. 1st, it does not appear that the testator left any estate whatever in the State of his domicil. The case states that it was insolvent there. It does not appear that there are any creditors of the estate, except those whose claims were allowed here. It is not claimed against the New York creditor, that there was any administration taken in that State or any estate there to be administered upon. If there be no estate except within this iurisdiction, then full and final equality has been attained by the distribution made in this case, and could not have been secured otherwise. 2d, if, by supposition, there was or is any estate in the District of Columbia to be administered upon, then these Vermont creditors are “ entitled to have their, claims allowed there, and to share ratably in the assets” with the creditors in that jurisdiction. (Glvurrehill et al. v. Boyden ;) and this again secures an equality; and in either case, the condition of the proviso is answered.</p> <p>3. But if by the proviso is intended, that we are to regard the provisions of the foreign law, rather than the fact of equality of. creditors in the particular case, (a forced and insensible construction,) then the case is with us, for the law of the District of Columbia makes no distinction between the domestic and foreign creditor.</p> <p>4. Aside from the statute of 1851, the decree in this case was in accordance with the rules laid down in Ghwchill et al. v. Boy-den, and within the discretion of the probate court to make, and was equitably and wisely made.</p>

Api’ear from the decree of the court of chancery. The bill set forth that the complainants were a duly organized corporation engaged in the business of banking in the city of New York; that the defendant A. Sidney Baxter was previous to and on the 31st of March, 1855, a broker in New York, and had for some time previous to that date kept a bank account with the complainants; that they, relying on frequent representations of his solvency, made to them by A. S. Baxter previous…

This was a petition for the foreclosure of a mortgage. The following'facts appeared in the case: On the 27th of August, 1850, Merritt S. Darrow and Jay F. Darrow executed and delivered to the petitioner the following written instrument: “Value received, I promise to pay to the order of Henry E. Seymour one thousand dollars, on demand and use, and this note is collateral and to secure said Seymour any note, demand, agreement or liability he has of, against, by, or on account…

Petition to foreclose a mortgage. It appeared in evidence that on the 21st of September, 1850, the defendant, Cnrtis B. Albee, held a note for five hundred dollars against Albert G. Soule ; that on that day a suit was commenced against Albee in favor of Anson Buck, in which Albert G. Soule was summoned as trustee.

Debt on an award of arbitrators, dated October 18th, 1855. Plea, the general issue, and trial by the court, at the November Term, 1856, of the Chittenden County Court, ^Poland, J., presiding. The defendant admitted the submission to the arbitrators as stated in the declaration, and proved by parol evidence that the arbitrators and parties met and commenced the arbitration on Friday, the 12th of October, 1855, and that the hearing was continued through that day and the next.

Indictment for not building a bridge according to an order of the county court for Chittenden County. The facts in the case are sufficiently set forth in the opinion of the court. Numerous questions arose at the trial in the county court, but under the decision of the court only one is material, and that is fully stated in the opinion.

Assumpsit. The first count of the declaration, and the only one upon which the questions considered by the court arise, declared upon a special contract, to the effect, that in consideration that the plaintiff would allow the defendants to use two machines known as “ Sickles3 patent cut-off,” which belonged to the plaintiff and of which he owned the patent right, one upon the defendants3 steamer “ Burlington,” and the other upon their steamer “ Saranac,” and would also…

The facts in the case, the' decree of the court below and the nature of the appeal are sufficiently set forth in the opinion of the court.

Case for a malicious prosecution against the plaintiff for obtaining money under false pretences from Roswell Hunt, for the alleged infringement by him of a patent for a water wheel, known as Parker’s water wheel. Plea, the general issue, and trial by jury, at the May Term, 1857, of the Windsor County Court, Underwood, J., presiding.

Assumpsit upon a promissory note dated April 18,1858, signed by the defendant, and payable to “ Levi H. Marsh, or bearer, on demand, for value received, after a lease shall be given up from Levi H. Marsh to Olive Ann Marsh, dated July 28, 1851.” The case was tried by the court, at the December Term, 1857, of the Windsor County Court, — Redeield, Ch. J., presiding.

Book Account. The only question in this case related to an item in the plaintiff’s account for building a quantity of fence for the defendants. It appeared from the auditor’s report that on the 5th of February, 1849, the plaintiff made a contract under seal with the defendants, to erect all the fence they required to be built in the County of Chittenden, within two years from that time, at a stipulated price per rod.

Assumpsit. The first count of the declaration was as follows : “ And now the said James Branin declares against the defendants in a plea of the case, for that at Burke, in said county, on the 10th day of October, 1856, John D. Fife and Erastus A. Wadleigh, partners under the firm of Fife & Wadleigh at said Burke, contractors on the extension of the defendants’ railroad from St. Johnsbury to Barton, being indebted to the plaintiff in the sum of one hundred dollars for…

Assumpsit for goods sold and delivered. Plea, the general issue, and trial by the Orange County Court, — Poland, J., presiding. The plaintiffs’ claim was for liquors sold by them in Boston, in the years 1853 and 1854, all of the account having accrued in 1853, except one item of seventy dollars and seventy-one cents, for three barrels of Medford rum, which were sold Jan. 18, 1854.

The bill was brought April 4, 1853, and set forth that on the 10th of August, 1844, the orators executed with one Daniel Aikens, and as sureties for him, a joint and several promissory note for five hundred and fifty dollars, payable to John Marshall, or order, in one year from date, with interest annually; that the fact of their being merely sureties upon the note was fully shown to Marshall at the time of its execution; that Marshall commenced a suit against Daniel Aikens…

Assumpsit upon a promissory note of the following tenor: “ $300. Montpelier, September 3, 1850. Two years from date we jointly and severally promise to pay the Vermont Bank, or order, three hundred dollars, with interest (Signed) annually, for value received. Gilman B. Dodge, V. B. Burris, Major L. Goodwin, Benjamin F. Burris, Wm. Dodge, Wm. H. Parker, Benjamin Burris, upon which note was the following guaranty: “For value received we guaranty the payment of the above note.

Habeas Corpus, directed to Isaac B. Crane, upon the petition of Benjamin F. Greenough.

<p>Case for slander. The substance of the first count of the declaration was, that the defendant falsely said of the plaintiff, “ Alonzo Redway will steal. I-Ie has stolen hay from Dennis Gray’s barn.”</p> <p>The second count was substantially as follows i</p> <p>“Also in a further plea of the case, whereupon the plaintiff declares and says, that from his childhood he has been a person of good fame and credit, and of integrity in his business, and for more than ten years last past has been an extensive dealer in produce, whereby he has made great gain and profit; that heretofore, to wit, on the 19th day of April, 1854, at Calais, he resided in a certain dwelling-house, and occupied certain outbuildings connected therewith; that said buildings, on that day, were insured to the plaintiff against loss or damage by fire, by the Vermont Mutual Fire Insurance Company for the sum of one thousand seven hundred dollars: that said buildings were on that day consumed by fire, without any agency of the plaintiff ;* nevertheless the defendant, not ignorant of the premises, but maliciously contriving and intending to injure the plaintiff’s good name and reputation, and deprive him of his said business, and profit and gain to be made thereby, and to prevent him from recovering-payment from said i_surance company of the amount of his said insurance, and to induce one Ephraim Pierce, who had signed a promissory note with, and as surety for the plaintiff to the Vermont Bank, for the sum of five hundred dollars, and other creditors of the plaintiff, to cause and procure the plaintiff to be sued and his property to bo attached, and thereby to subject the plaintiff to the payment of a large amount of cost, and to a great sacrifice of his property by a sale thereof at .auction, did on or about the first of May, 1854, at said Calais, in the presence and hearing of the said Ephraim Pierce and divers other persons, utter and publish the following false, malicious, scandalous and defamatory words, of and concerning the plaintiff, and of and concerning the said destruction by fire of said buildings, and of and concerning said insurance aforesaid, to wit: I, (meaning the said Joseph G-. Gray) believe that Alonzo Eedway (meaning the plaintiff,) burnt his buildings, (meaning the said buildings consumed by fire, as aforesaid,) to make money, (meaning that the plaintiff burnt said buildings, and that he did so for the purpose of obtaining the amount of money for which said buildings were insured, as aforesaid,) and everything goes to show it, (meaning that every circumstance tended to show that the plaintiff burnt said buildings, and that he did so for the purpose of obtaining the amount of money for which said buildings were insured, as aforesaid.) And the defendant, continuing his malice, did' then and there, in the hearing of said Ephraim Pierce and divers other persons, utter and speak the following false and scandalous words of and concerning the plaintiff, to wit: Alonzo Redway (meaning the plaintiff,) will fail. He (meaning the plaintiff,) can not pay fifty cents on a dollar, (meaning that the plaintiff was insolvent and would fail, and that he could not pay fifty cents on the dollar of the debts he was then owing). By reason of the speaking of which false and scandalous words in manner aforesaid, the plaintiff has greatly suffered in his good name and reputation, and the said Ephraim Pierce was thereby induced, and did, afterwards, to wit, on the 5th day of May, A. D. 1854, at Montpelier, in said county of Washington, cause and procure a writ to be made out on said note to the Vermont Bank, before mentioned, against the plaintiff in this suit, when otherwise the said bank would not have sued said note, and when otherwise said Pierce would not have procured said note to be sued ; and afterwards, on the same day, at said Calais, said Pierce caused said writ to be served by attaching all the plaintiff’s real estate in said Calais, and the plaintiff was thereby subjected to the payment of a large amount of cost, to wit, the sum of five dollars, and is otherwise greatly injured.”</p> <p>The third count' set forth in substance that the plaintiff had always sustained a good character among his neighbors, and had never been guilty or suspected of the crime of arson; that on the 19th day of April, 1854, he resided in and occupied a certain dwelling-house and outbuildings, the property of Rhoda Redway, wife of the plaintiff, which said dwelling-house and outbuildings were, on that day, consumed by fire, either by accident or by some evil disposed person, nor did the plaintiff in any manner cause the same; that the defendant, maliciously intending to injure the plaintiff in his good name and character, etc. etc., on the 1st of June, 1854, at Calais aforesaid, falsely, wickedly and maliciously did utter and publish in the presence and hearing of sundry persons, the following false, scandalous and defamatory words, of and concerning the plaintiff, and of and concerning the aforesaid buildings and the burning thereof, to wit: “there is no doubt that Alonzo Redway (meaning the plaintiff) burnt his buildings (meaning'the same buildings which were occupied by the plaintiff, and which were owned by the said Rhoda Redway, and which were burnt on the 19th day of April; 1854),</p> <p>The fourth count was substantially the same as the first count, and the fifth count was. substantially like the third, with the addition of the following words to the last innuendo: (“and that the plaintiff burnt the same buildings by design and intentionally”).</p> <p>To this declaration the defendant pleaded the general issue, with notice of special matter in defence, and two special pleas in bar, which, under the decision of the court, it is not material to recite, and to these pleas the plaintiff demurred.</p> <p>The county court for Washington County, at the March Term, 1857, — Poland, J., presiding, — adjudged the special pleas insufficient, to which the defendant excepted.</p> <p>The case was tried by jury, at the September Term, 1857, — - Peck, J., presiding.</p> <p>The evidence tended to show that the property referred to by the defendant, in the words charged in the first and fourth counts to have been spoken by him of the plaintiff, was of less value than seven dollars, and that the persons, in whose presence the words were spoken, must have so understood it at the time.</p> <p>The defendant insisted and requested the court to charge the jury that it was not actionable to accuse one of stealing property of less value than seven dollars. The court refused so to charge, but charged the jury to the contrary, to which the defendant excepted. The jury rendered a verdict for the plaintiff.</p> <p>After verdict and before judgment, the defendant moved in arrest of judgment for the insufficiency of the declaration, but the court overruled the motion, and rendered judgment on the verdict for the plaintiff, to which the defendant excepted.</p> <p>1. The second count of the declaration is bad, and should have been so held upon the demurrer to the pleas, and for the same reason the motion in arrest of judgment should have been allowed, as the verdict was general upon all the counts.</p> <p>The words charged in this count are not actionable, per se, because the offence of burning one’s own buildings for the purpose of defrauding an insurance company, does not, by the common law nor under the statutes of this State, subject a man to an infamous or corporal punishment. By the common law it is merely a misdemeanor; 2 Russ, on Crimes 486. By the statute of 7 & 8 Geo. IY., it was indeed made a felony, but we have no such statute.</p> <p>These words therefore are not actionable, unless special damage is alleged. The only special damage pretended is that one Pierce procured the bank to sue the plaintiff, and his real estate was attached, and “ he was subjected to the payment of a large bill of costs.” The words “ subjected to the payment of a large bill of costs,” are not equivalent to an averment that he did pay a large bill of costs. Such payment, if made, was a material fact, and should have been set forth under a positive and direct averment, with time and place.</p> <p>2. The words charged in the first and fourth counts are not actionable in themselves, because the offence of stealing less than seven dollars is not punished by an infamous punishment, nor does it involve moral turpitude; Billings v. Wing, 7 Yt. 439.</p> <p>To involve moral turpitude the offence charged must be a felony ; Ogden v. Riley, 2 Green. 186; Wall v. Hashms, 5 IredeE (N. C.) 177; Haven v. Smith, 4 B. Munroe 385; Tm-ner v. Ogden, 2 Salk. 696; Bay v. Robinson, 29 E. C. L. 422; Jaclcson v. Adams, 2 Bing. N. C. 402; Findley v. Bean, 8 Ser. & Rawle 571.</p> <p>In law, infamous punishment and moral turpitude mean the same thing in relation to crimes, and the latter words do not extend the meaning of the former; Bailey v. Roberts, 3 Bing. N. C. 835 ; Hall v. Welden, 8 Dow. & Ry. 140; Prindler v. Vaughan, 12 Barton 212; Boyd v. Brant, 3 Brevard 241; Byer v. Morris-, 4 Miss. 214; 2 Term 473.</p> <p>1. We insist that the words charged in the first and fourth counts are actionable; Billings v. Wing, 7 Vt. 439. (The only difference between the imprisonment, where the property is of less value than seven dollars and where it exceeds that sum, is, that in the one case it is in the county jail not exceeding three months, and in the other it is in the state’s prison not exceeding ten years. In both cases it is a punishment for the offence, and not in consequence of a default or inability to pay.</p> <p>2. We insist that the words charged in the second, third and fifth counts are actionable, and that the allegations in those counts are sufficient. The second count alleges that the plaintiff sustained special damage.</p> <p>Though the words alleged in the third and fifth counts may not amount to a charge of arson, technically, yet they do amount to a charge of misdemeanor of great magnitude, and punishable at common law by fine and imprisonment; 2 Russ. on Crimes, 489; Holmes case, Croke Charles, 376; 2 Swift’s Dig. 305.</p> <p>The burning of the house, though occupied by the plaintiff, was accompanied by an injury to his wife, and would therefore be criminal; Bloss v. Toby, 2 Pick. 32.</p> <p>In an indictment it would not be necessary to allege an intent to injure, as it would be inferred; Archb. Cr. Pl. 300.</p>

<p>Declaration eor Betterments upon lands in Westminster, recovered by tlie defendants of the plaintiff in an action of ejectment, at the April Term, 1856, of the Windham County Court. Plea, the general issue, and trial by jury, at the April Term, 1857, of the Windham County Court — Unrerwoor, J., presiding.</p> <p>The plaintiff' introduced in evidence a deed of the premises in question, from James Richardson to Lyman Richardson, and to the heirs male of his body, and to their heirs of the first generation. This deed was dated April 14, 1807, and was duly recorded in the town clerk’s office in Westminster, April 29, 1819. The plaintiff also put in evidence certified copies of the record of the following deeds of the same premises, viz: —from Lyman Richardson to Riley Whitney, dated December 10th, 1831 ; from Riley Wliitney to Leonard Cragin, dated October 21, 1836 ; from Leonard Cragin to John C. Richardson, dated January 6, 1841, and from John C. Richardson to the plaintiff, dated August 18, 1845. All these deeds except the one from James Richardson to Lyman Richardson, purported to convey the premises in fee simple, and they all contained the usual covenants of seizin and warranty.</p> <p>The plaintiff also introduced evidence tending to show that all the grantees in the above mentioned deeds, subsequent to Lyman Richardson, purchased the premises' supposing that they were purchasing a title in fee simple, and that all of them, including the plaintiff, made improvements on the premises, and made them better from time to time.</p> <p>The evidence introduced by the defendants tended to show that while Cragin was in possession of the demanded premises, after his purchase, he was told that his title was defective, at which he appeared surprised ; also that John C. Richardson, before his purchase of the premises, knew the state of the title, and was aware that there was some question whether Lyman Richardson’s deed conveyed a title in fee simple to the premises.</p> <p>It appeared that Lyman Richardson died in New York in 1852, and that the defendants were his only male heirs.</p> <p>The defendants insisted and requested the court to charge the jury, first, that the plaintiff could not recover for any betterments made in the premises before Lyman Richardson’s decease; because up to that time the possession of the plaintiff, and those under -whom he claimed, was not adverse, and no person had any right to oust them, as they had an estate for Lyman Richardson’s life ; second, that there was no law authorizing a claim for betterments when the defendant’s right of entry into the land in question accrued, nor when the declaration for betterments was filed ; third, that if the occupants had notice of the character of their title they could not recover for betterments, and that the record of the deed from James Richardson to Lyman Richardson was conclusive notice of the state of title to all in the same chain of title ; and fourth, that no betterments could be recovered which were made anterior to the possession of an occupant having actual notice of the real state of his title.</p> <p>But the court refused so to charge the jury, and did charge them that if they found that, in point of fact, the plaintiff, or those under whom he claimed, had good reason to suppose, and did suppose, that at the time of their purchases, respectively, they acquired a perfect title in fee simple, the plaintiff would be entitled to recover for betterments, made by such of them as bought under that supposition ; but that if any one of them in the chain of title did not at the time of his purchase suppose, or did not have good reason to suppose, that he acquired such a title, the plaintiff could not recover for betterments made by such party.</p> <p>The jury were further told that though a grantee might, after his purchase, be informed that his title in fee was doubtful, yet it would not prevent the plaintiff from recovering for betterments made by such grantee, provided the latter, at the time of his purchase, supposed his title was perfect.</p> <p>To the refusal of the court to charge as requested, and the charge as given, the defendants excepted.</p> <p>l.'The betterment law applies 'only to cases of possession adverse to the legal title. It was never intended to encumber estates in remainder, reversion, or entail with the value of improvements made by the tenant for life, or party in possession of an estate held by legal title. If the effect contended for by the plaintiff be given to the statute, the remainderman or reversioner would often find their estates rendered valueless by the incumbrance, or, it may be, set off under the provision of the statute to pay the value of the improvements, and the title transferred to another. Lincoln v. Root, 8 Pick. 376; Mason v. Richards, 15 Pick. 141; Larcom v. Cheever, 16 Pick. 260; 15 Mass. 291; 13 Mass. 241; Varney v. Stevens, 9 Shepl. 331; 1 Greenl. 91; Ib. 315; Treat v. Strickland, 10 Shepl. 234; Schroll v. Klinker, 15 Ohio 152; Waldron v. Woodcock, 1 Indiana 13.</p> <p>2. The record of the deed from James Richardson to Lyman Richardson was conclusive notice of its contents and legal effect to the plaintiff, and all in the same chain of title, and of the character of their estate, for all purposes whether in law or equity. 1 Story’s Eq. Jur. sec. 403; 4 Greenl. Cruise 555, note; 4 Kent 177; Bates v. Norcross, 14 Pick. 244; Tilton v. Hunton, 11 Shepl. 29; Bigelow v. Topliff, 25 Vt. 273; Barnes v. Baylies, 18 Vt. 430.</p> <p>3. A grantee can not occupy a better position in regard to improvements made by the grantor than the latter himself occupied. Hence, if any one of the several purchasers and occupants knew of the defect in his title at the time of his purchase and entry, he could not recover for his own improvements nor for those made by those under whom he claimed. Winslow v. Newell, 19 Vt. 164.</p> <p>The plaintiff therefore, can not recover the value of improvements made by a party prior to the entry of a purchaser with notice of the defective state of the title. As the testimony tended to show such notice to Cragin and John C. Richardson, the jury were not properly instructed in this respect.</p> <p>4. The jury were told that though any one grantee might after his purchase be informed that his title in fee was doubtful, yet it would not prevent the plaintiff from recovering for betterments made by him, provided at the time of his purchase he supposed his title was perfect.</p> <p>If this instruction be correct, notice by the reversioner or remainderman would be of no avail after the occupant had gained possession. The tenant might go on improving the estate for his own enjoyment, according to his peculiar tastes, and subject an after tenant, remainderman or reversioner to the payment of the expenses of such improvements, or to a forfeiture of the property.</p> <p>This doctrine would be inequitable and intolerable, and would be clearly an infraction of the rule of law that no person shall be allowed to make another his debtor without his consent.</p> <p>1. It is objected to the plaintiff’s recovery, that the possession of those, under whom he claims, was not adverse, that they were tenants for life and that no person had the right to oust them during Lyman Richardson’s life time.</p> <p>Whatever might be the case with Lyman Richardson, it is found that Riley Whitney made a purchase of a fee simple, and entered under it. This was of course adverse to any claim of the defendants. Here the statute steps in and declares that if he made this purchase, supposing his title to be good (as the jury have found), he was entitled to his betterments.</p> <p>2. But it is said that the deed to Lyman Richardson from his father was on record, and that this was conclusive notice to Riley Whitney. This is carrying the doctrine too far. The statute was made expressly to save purchasers from the responsibility of deciding upon the legal validity of titles. If the fact had been brought to the purchaser’s -actual knowledge, it would be only an ingredient of evidence from which the jury might have inferred, that at the time of purchase he could not have supposed that he was purchasing a good title. No such knowledge is pretended, and the jury have found that he did entertain the supposition required by the statute. The statute was made for the benefit of laymen, and at the time when Riley Whitney purchased it was generally understood that entails did not exist in this State. It would at that time have required a very astute person to discover, if inquiry had been made, that Lyman Richardson being in possession, did not own the farm he claimed in fee simple.</p> <p>3. Nor is it of any importance whether the defendants claiming in tail could or could not have entered, for the statute does not put the matter on the nature or kind of their title, but upon the plaintiff’s supposing that he purchased the title ostensibly conveyed to him. In the view of the legislature, whenever the defendants obtain their land, they take it, made by the plaintiff’s expenditure so much better than the land originally conveyed to them, as the amount of the judgment against them. This expenditure the plaintiff equitably ought not to lose, or the defendants to gain, and as it is, they are gainers at any rate, for they recovered for the rent of the plaintiff’s betterments in estimating their damages in the ejectment.</p> <p>4. As to the right of the plaintiff to file his declaration for, and recover his betterments, it is to be observed that the act is always in force, but limited in its operation to those who shall have entered before a time prescribed. The entry of the present plaintitF accrued August 18, 1845, and the periodical limitation has been twice taken off since, viz: November 9, 1848, and October 1, 1856, and moreover the respective grantees purchased the betterments of those under whom they claimed, so that the plaintiff was entitled to these as well as to his own improvements. It would be a question therefore, not as to the filing his declaration, but as to the amount to be recovered.</p> <p>The case of Winslow v. Newell, 19 Vt. 169, was that of one who entered after the limitation had expired, and went to trial before it was again extended, and he could not claim for improvements made by his grantor, because they were made in bad faith,</p>

Case against the defendant, the sheriff of Orange County, for the neglect of his deputy, Nelson B. Stevens, in not serving and returning an execution in favor of the plaintiffs against one Witherspoon, and also in not levying the same upon Witherspoon’s real estate. The case was tried at the June Term, 1856, of the Orange County Court, — Poland, J., presiding, — upon an agreed statement of facts, which are sufficiently set forth in the opinion of the court.

Assumpsit. The first count of the declaration was as follows: “ In a plea of the case for that the said defendants, at said St. Johnsbury, heretofore, to wit, on the 18th day of March, A. D.„ 1857, by their promissory note, under their hands, of that date, for value received, jointly and severally promised the plaintiffs to pay them one hundred dollars in three from the date of said note ; and the plaintiffs aver that the said three months from the date of said note have…

Case against the defendant as sheriff of Washington County, for the default of his deputy, one Page, in permitting the escape of John Babcock from arrest on mesne process. Plea, not guilty, and trial by the court, in Washington County, at the March Term, 1858, — Barrett, J., presiding.

Case against the defendant, as sheriff of Orange County, for the neglect of Abel Lyman, his deputy, in not paying over to the plaintiffs the amount of an execution in favor of the plaintiff Caroline Coburn, which he had collected.

<p>Adultery. Insanity. Divorce.</p> <p>Adultery by an insane person is not cause for divorce.</p>

Case against the defendants as listers of the town of Berlin, for unlawfully assessing the plaintiff, when he was not an inhabitant of that town, and had no property there. Plea, the general issue and trial by jury at the March Term, 1857, of the Washington County Court, — Poland, J., presiding.

Trespass for taking four boxes of window-glass. The defendant plead the general issue, and a special plea in justification, setting forth in substance, that at a legal meeting of the legal voters of school district number seventeen, in Royalton, on the 25th of October, 1856, Phineas D. Pierce, Jireh Tucker and the defendant were duly elected prudential committee of the district, and the defendant was duly elected collector of taxes; that at a legal meeting of the district,…

This was an action for the false warranty of a mare. Plea, the general issue and trial by jury at the January Term, 1858, of the Orange County Court, — Barrett, J., presiding.

Plea, the general issue and offset, and trial by the court, at the June Term, 1857, — Poland, J., presiding. The plaintiff claimed to recover the sum of forty-three dollars.and eighteen cents, and interest thereon, which the intestate had received from the executor of Prudence Currier, who had devised that sum to the plaintiff, and for which the intestate gave his receipt, as overseer of the poor of the town of Washington, to said executor.

Case for the disturbance of a water-course. Tke declaration contained three counts, the first and second charging the defendant with having lowered and changed the channel of a brook, which divided the farms of the plaintiff and the defendant, and diverting the water therein; and the third complained of an interference by the defendant, with the natural flow or passage, by percolation, of the water through the defendant’s land to the plaintiff’s, by means of which a…

Assumpsit for money paid and money had and received. The writ was served on the 10th of October, 1855, and was returnable at the December Term, 1855, of the Caledonia County Court, and was continued at that term. Prior to the next term held in June, 1856, the plaintiffs’ attorney sent a written notice to the defendant’s attorney to the effect that the suit was discontinued, and that he should so enter it at the call of the docket.

Debt upon a bond given by the defendants for the faithful performance by the defendants Chapin and Townsley, of their duties as administrators of the estate of Thomas C. Lord, deceased. The breaches assigned in the declaration and the facts in the case sufficiently appear from the opinion of the court.

Assumpsit,. The case was referred, and the referees reported as follows: “ The plaintiiff presented an account amounting to seven hundred eighty-six dollars and sixty cents, ($786.60), and the defendant presented an account in offset amounting to six hundred and twenty dollars and ninety-two cents, ($620.92).

Audita Querela to vacate a judgment, and supersede an execution issued thereon, rendered by a justice of the peace in favor of the defendant against the plaintiff. The grounds of relief alleged in the declaration are sufficiently set forth in the opinion of the court.

Assumpsit upon a promissory note for two hundred and eighty dollars, dated August 21, 1854, signed hy the defendant, and payable to Cornelius Russell, or hearer, in six months from date, with interest annually.

Book Account. Tlie auditor reported that on the 20th of August, 1854, the defendant, the plaintiffs and Isaac B.- Lewis, made an agreement in the city of New York, where both the plaintiffs and Lewis resided, and were engaged in the purchase and sale of potatoes, that the defendant, who resided in Wells River, in this State, should purchase potatoes during that season in Vermont and New Hampshire, taking the advice of the plaintiffs and Lewis, from time to time, in regard to…

<p> Evidence. Auditors. Account. Book Account. </p> <p>The auditors in this case reported that on a certain day the parties made a written contract, the terms of which they set forth in their report. They farther reported that subsequently, and on the same day of the execution of the written contract, and before they separated, the parties made a verbal contract, varying the terms of the written contract in certain respects which were reported by the auditors. The auditors made no further report of the-circumstances attending the making of this verbal contract, but allowed certain items of account accruing thereunder; and the county court allowed these items and rendered judgment therefor upon the report; Held, that though the auditors erred iu not specially reporting the facts relied on to show that the parol agreement was subsequent to the written one, yet the supreme court could not hold, as matter of law, that it was not in fact subsequent, and the judgment of the county court was therefore affirmed.</p> <p>In an action of account between the owner of a farm and one to whom he had let it on shares, the defendant, the landlord, among other things, sought to recover for damages sustained by him in consequence of the other party's neglecting to keep up the fences, and hoe the corn, in a good husbandiike manner, as by the lease he had contracted to do: Held, that these damages were a proper subject for adjustment in such action.</p> <p>In an action of account items of book account can not be adjusted.</p>

<p> Evidence. </p> <p>In an action upon a promissory note brought for the benefit of the payee, but 'in tliciname of a mere nominal plaintiff, the maker introduced in evidence a written contract between him and the payee in regard to a note, of which the one in suit was only a renewal, which contract was made at the time of the execution of the original note, by which it was agreed that the maker should not be obliged to pay the note, and sufficient was conceded in the case to show that the note in suit stood upon the same footing, in regard to the maker’s liability upon it, as the original note; Held, that the plaintiff coiild not introduce parol evidence to show that the agreement between the parties, at the time of the execution of the original note, was such that it was the duty of the maker to pay it.</p>

This was a petition by the state’s attorney of Orange County to order the change of venue in this case, which is an indictment for manslaughter and procuring abortion, pending in said county, on the ground of the impracticability of obtaining a fair trial in the county of Orange, by reason of the excitement and disordered state of public opinion in regard to the case.

This was a petition for a new trial in a cause tried in the county court and brought into this court upon exceptions, which are still pending. The petition was made returnable to the General Term, at Woodstock, for the eastern counties. The cause is one pending in the county of Windsor.

<p> Promissory note. Guaranty, </p> <p>If the holder of a negotiable promissory note write and sign upon the hack of it a guaranty that it shall be collectible when due, such indorsement, though 0 sufficient to transfer the legal title to the note, does not create the same liability upon him, as an unconditional indorsement, but merely makes him liable as a guarantor that the note is collectible.</p> <p>When one receives a note with a guaranty that it shall be collectible when due, he is bound, before he can maintain an action against the guarantor, to pursue with reasonable diligence all legal means of collecting the note out of all the prior parties to it, whether makers or indorsers, unless they are entirely insolvent.</p> <p>And if any such prior party die before the maturity of the note, it is the duty of the holder to exhaust all legal means afforded by the probate court, and by the county court on appeal, for collecting the note out of such deceased party’s estate, before he can proceed against the guarantor.</p> <p>In this case the defendant transferred to the plaintiff two promissory notes, executing- at the same time upon them a guaranty that they should be collectible when due. One of the prior indorsers died before the matur ty of the notes, but his estate was solvent, and the plaintiff presented the notes before the commissioners on his estate, and they were allowed at their full amount. Afterwards the plaintiff petitioned the probate court to order the legal representatives of the deceased indorser to pay the debts of the estate, but the probate court, although full three years had expired since the issue of letters testamentary on his estate, refused to makj such an order, from which refusal the plaintiff appealed to the county court^and during the pendency of this appeal in the county court the plaintiff sued the defendant upon his guaranty; Held, that this action was prematurely brought, and that the appeal in the county court ought to have first been prosecuted to an issue, and resulted in a failure to collect the note.</p> <p>Qumre, whether if the plaintiff had procured a decree from the probate court ordering the payment of the debts, which had not been obeyed, he could have sued upon the defendant’s guaranty until after he had exhausted the remedy of a suit upon the executor’s bond.</p>

<p> Officer. Trespass. Pleading. Attachment. </p> <p>If property be attached and receipted, and pass from the receiptor’s hands into the possession of another person, who knows of the attachment and the receipt, and gives the receiptor a bond to indemnify him against the receipt, the officer has the right to take the property out of such person’s hands at any time during the pendency of the attachment.</p> <p>In trespass the defendant can not, in a trial upon the general issue, rely upon any matter of justification, even though the evidence of such matter be furnished by the plaintiff in the proof of his case.</p> <p>It is no objection on general demurrer to a special plea in trespass, which justifies the taking by virtue of a writ, signed by the clerk of the county court and directed to the defendant as an officer, that such writ is described in the plea as signed by the clerk of the county, naming him, instead of the clerk of the county court.</p> <p>Where a defendant in an action of trespass justified the taking by virtue of a writ directed to him as an officer, and the action was brought against him previous to the term of court at which such writ was returnable, a special plea setting up such writ and taking thereunder, was held good, on general demurrer, notwithstanding it did not allege that the writ was returned at tl¡e term of the court to which it was made returnable.</p> <p>When an officer attaches an article but misdescribes it in his return, and its appearance and use are such that it may have been naturally and in good faith so misdescribed, such error will not avoid the attachment, and a plea in an action of trespass for taking the article, which sets up the fact of the attachment and its misdescription, will be a justification of the taking.</p> <p>A mere clerical error in a plea, which is corrected hy papers which by reference axe made a part of the plea, will not render the plea defective. Such an error may at any time be amended on motion.</p> <p>In an action of trespass for taking certain goods; the defendant pleaded in justification that he took them by virtue of a writ directed to Mm as an officer. The plaintiff replied, that the defendant did not attach said goods by virtue of said writ. Upon special demurrer to this replication it was held to be a negative pregnant, and therefore bad.</p>

<p> Evidence. Deposition. Witness. </p> <p>In an appeal from the probate of a will, the defendants, who sought to sot aside the will on the ground of the mental incapacity of the testatrix, introduced evidence of certain declarations, made some four years before the execution of the Will, by the plaintiff, who was the executor named in the will as well as a legatee, and who was seeking to establish it, to the effect that she was unsound mind; Held, that such declarations wore admissible in evidence on the ground that they were made against interest, and by one who was both a party of record and a party in interest.</p> <p>Held, also, that it made no difference as to the competency of such declarations as evidence, whether the plaintiff’s interest was greater to have thewill established, than defeated, or not: but (hat such consideration might be of importance in regard to the weight and credibility of such evidence.</p> <p>A deposition after the close of the deponent’s examination in chief, contained these words: “the above is a copy of a deposition which I gave in July, 1849 (except the dates having' been altered), when the facts were fresh in my recollection'.” Then followed the cross-examination of the deponent, at the close of which the deposition was duly signed, sworn to and certified: Held, that the deposition was admissible.</p> <p>It is admissible for the purpose of impeaching the testimony of a'deponent to introduce evidence of statements made by him conflicting with those con-, tained in his deposition. And it is not necessary, in order to lay the foundation of such impeaching testimony, that the deponent should be inquired of in relation to such conflicting statements.</p> <p>In an appeal from a decree of the probate court admitting a will to probate, the appellants, who contested the will, were husband and wife, the latter being one of the heirs-at-law of the testatrix, but the husband was neither an heir-at-law nor a legatee; Held, that the wife was a competent witness for the appellants.</p>

<p>Assumpsit upon a joint and several promissory note, signed by the defendants, and payable to the plaintiff or bearer in one year from date, with interest. None of the defendants made any defence except Adams, who pleaded the general issue and a special plea in bar, setting forth that he signed the note in question as surety for and at the request of the other defendants, upon the express condition and promise between them, that before the note should be delivered to the plaintiff, Jed P. Clark or Daniel H, Onion should be procured by the other defendants to sign it as co-surety with him ; that relying on such condition and promise, he delivered the note to the other defendants for the purpose of having Clark’s or Onion’s signature obtained thereto as co-surety, before it should be delivered to the plaintiff; but that they delivered it to the plaintiff without obtaining either Clark’s or Onion’s signature, and without his, Adams’, knowledge or consent; and also that at the time the plaintiff received the note she had knowledge that Adams was merely a surety thereon for the other defendants.</p> <p>To this plea the plaintiff demurred generally, and the county court adjudged it insufficient, to which the defendant Adams excepted.</p> <p>The cause was tried by the jury upon the general issue, at the March Térra, 1858, — Bennett, J.‘, presiding, — when it appeared on trial, that at the time of the execution of the note in question, the plaintiff held a note for the same amount, over due, against all the defendants except Adams; that Adams signed the note in suit merely as surety, and without receiving any consideration for so signing; and that this fact was known to the plaintiff, and that Adams did not know when he signed it that it was to be used as a substitute for any other note. The plaintiff gave evidence tending to prove that the note was signed by Adams as surety, at the request of the defendants Mosher and Dixon, without any agreement or condition whatever, and that it was delivered to her by Mosher, in payment of the note she then held, upon the same day or the day after it was signed by Adams, and that the old note was then given up by her to Mosher.</p> <p>The defendant Adams gave evidence tending to show that he signed the note at the request of the defendants Dixon and Mosher, and upon the express condition and agreement that, before it should be used, the name of another surety should be procured to it, viz: either that of Dan. II. Onion or J ed P. Clark; that he left the note in the possession of Dixon and Mosher for that purpose, and that they, without procuring any other surety, and without his consent, delivered it to the plaintiff, who took it with notice of the above mentioned condition and agreement between him and the other defendants in regard to procuring another surety. He also introduced evidence tending to show that the old note was not, in fact, given up at the time of the delivery of the new one, but was left in the possession of the plaintiff for several weeks thereafter, and also that before she did give it up she was informed that the defendant claimed the existence of such a condition and agreement between him and the other defendants.</p> <p>The plaintiff also introduced evidence tending to show that she took the note in question without any knowledge on her part, of any such agreement or condition, if any in fact existed.</p> <p>Upon this evidence the defendant Adams insisted, and requested the court to charge the jury, first, that the plaintiff had proved no consideration for his promise, and therefore could not recover against him; second, that if the jury found that Adams signed the note with such a condition and agreement as to its use as his evidence tended to show, and that the note was delivered to the plaintiff without a compliance with such condition and agreement, and without Adams’ consent, the plaintiff could not recover against him, although she had no notice of such condition and agreement; and third, that if the plaintiff had such notice before she gave up the old note, she could not recover against him, although she had no such notice when she took the new one.</p> <p>But the court refused so to charge the jury, but did instruct them that the evidence tended to show a sufficient consideration for the note to bind the defendant Adams, and that in order to make a defence for him the jury must not only find that Adams signed the note as surety for the other defendants, under such a condition and agreement as his evidence tended to show existed, and that this condition and agreement were not complied with ; hut also that the plaintiff had notice of such condition and agreement at the time she received the note in suit, in the place of, and in satisfaction of her former note; and that if she received the note in suit in payment of her former note, it was of no particular consequence when she, in fact, surrendered up that note.</p> <p>To the refusal of the court to charge as requested, and to the charge as given, the defendant Adams excepted. The jury returned a verdict for the plaintiff, for the amount of the note.</p> <p>The note never became binding as to Adams. He signed and delivered it to the other defendants, as his special agents, with a limited authority in regard to its use. It had no force as a note against any of the parties until it was delivered. But it was delivered by the other defendants in express disobedience of their instructions from Adams. They had no title to the note, so far as Adams’ signature was concerned, in their own right, but held it merely as his special agents. It is well settled that if a special agent transcends his authority, he does not bind his principal.</p> <p>The plaintiff knew that Adams was a mere surety, and she knew also, from the form of the note itself, that it was yet inoperative in the hands of the other defendants, and that they had no other authority to give it a vital existence than such as Adams might have conferred on them- Was she not therefore bound to inquire into the extent of that authority ?</p> <p>But if it be claimed that possession of the note imports an authority to deliver it, we reply that with much greater force can it be claimed that possession of an escrow imports authority to deliver it; or that possession of a deed by the conveyancer, who has prepared it, imports an authority to deliver it; or that possession by an agent of the chattels of his principal, imports a right to deal with them as with his own. These propositions have but to be mentioned to suggest their unsoundness.</p> <p>The present case is not at all analogous to the one where the maker of a note, though merely an accommodation signer, intrusts it to the payee to make a particular use of it. In the latter case, a bona fide holder of the note would, recover against the maker, though the payee had disobeyed the instructions of the maker as to the disposition and use of the note.</p> <p>The great distinction between the two cases is, that in the case at bar the other defendants exercised, in the- name of Adams, a naked power and authority which they did not possess, made use of a note to which they had no title; while in the other, the payee wrongfully transfers a title which he does possess. In the one case, the act is necessarily nugatory without regard to the good faith of the transferee, in the other, the title passes to the transferee if he acts in good faith, and pays value for the note.</p> <p>These views are supported by the following authorities: Chamberlin v. Hopps, 8 Vt. 94; Churchill v. Gardner, 5 Vt. 500; Bromager v. Floyd, 1 Exch. 32; Hall v. Willson, 16 Barb. 548; Marvin v. McCullom, 20 John. 288; Goss v. Whitney, 24 Vt. 187; Jarvis v. Barker, 3 Vt. 336; Lansing v. Gaines, 2 Johns. 300; Nichols v. Nichols, 28 Vt. 237; Vallette v. Parker, 6 Wend. 615; Artcher v. Whalen, 1 Wend. 179; Cutter v. Whittemore, 10 Mass. 445; Pawling v. United States, 4 Crunch 219; Leaf v. Gibbs, 4 Car. &P. 466; Johnson v. Baker, 4 B. &A. 440; Thrall v. Benedict, 13 Vt. 248; Batty v. Caswell, 2 Johns. 48; Keyes v. Seely, 9 Barb. 214; Marston v. Allen, 8 M. & W. 494; 1 Smith’s Lead. Cases, 250 et seq.; Story’s Prom. Notes, Secs. 5-117; Byles on Bills, 2.</p> <p>cited Chicopee Bank v. Chapin, 8 Met, 40; Blanchard v. Stevens, 3 Cush. 162; Atkinson v. Brooks, 26 Vt. 569; Chitty on Bills, 80; Claremont Bank v. Wood, 10 Vt. 582; Nash v. Skinner, 12 Vt. 219; Stoddard v. Kimball, 6 Cush. 469; Bank of Missouri v. Phillips, 17 Missouri; S. C., 14 U. S. Dig. 491; Farmer’s & Mechanic’s Bank v. Bathbun, 26 Vt. 19; 1 Am. Lead. Cases 332; 2 id. 303.</p>

<p>Book Account. The only question in this case arose upon exceptions by the plaintiff to the auditor’s report, and concerned the admissibility of a deposition offered before the auditor by the defendant. The facts in regard to the deposition are sufficiently embodied in the opinion of the court. The county court, at the March Term, 1858, — Bennett, J., presiding, — overruled, pro forma, the plaintiff’s exceptions to the report, and rendered judgment thereon for the defendant, to which the plaintiff excepted.</p>

<p> Exceptions. Pauper. </p> <p>A bill of exceptions is not governed by the strict rule applicable to pleadings, that no intendment is made in favor of the party who thus sets up his rights, but it is to be understood, in the usual and ordinary sense of language, as a plain statement of the facts for both parties, to which the court is to apply the law.</p> <p>If one, having a legal settlement in Vermont, remove to another of the United States, and never return-here, his children, born there, take the settlement of their father upon coming into this State.</p>

Account. Judgment to account was rendered at the November Term, 1855, and an auditor appointed.

<p>Case against the defendant, as sheriff of Orange Comity, for the neglect of his deputy, Henry Godfrey, to pay over to the the plaintiff the amount of an execution in favor of the latter against Daniel Tarbell, Jr., which Godfrey had collected.</p> <p>The declaration described particularly the. judgment in favor of the plaintiff against Tarbell, and alleged the issue of an execution thereon, the fact that the defendant was the sheriff of Orange County, and that Godfrey was his deputy, the delivery of the execution to Godfrey for collection, its collection by him* and his neglect to pay the money so collected to the plaintiff according to law.</p> <p>It appeared that at the November Term, 1855, the case was set for trial by jury by the plaintiff, and that the defendant set it “not for the jury,” and applied for a continuance, but that the court refused to grant a continuance, and entered judgment for the plaintiff, without the introduction of any evidence, and that the case was continued for the assessment of damages until the November Term, 1856, when it was tried by the court, — Peck, J., presiding.</p> <p>The plaintiff proved that the judgment described in the decíalation was the property of Mixer & Pitman at the time it was rendered; that the execution issued on this judgment also belonged to Mixer & Pitman; that it was delivered to Godfrey for collection ; that Godfrey had collected the execution of Tarbell, but refused to pay it to the plaintiff on account of his having been summoned as the latter’s trustee in a suit against the plaintiff, and also that when the plaintiff’s attorney demanded payment of Godfrey of the amount he had collected on the execution, on being informed of this objection to his paying it, he notified Godfrey that the execution belonged to Mixer & Pitman.</p> <p>The plaintiff also proved that the execution in question had not been returned, and that no part of the judgment had been paid, except to Godfrey upon the execution. No other evidence was offered by the plaintiff, except that it was proved that the suit against the plaintiff, in which Godfrey was summoned as'trustee, had terminated, emd that the trustee had been discharged.</p> <p>The defendant insisted that upon this evidence the plaintiff could recover only nominal damages, because he was not the owner of the judgment against Tarbell, and also because there was no proof of the rendition of the judgment, or that the defendant was sheriff, or Godfrey deputy sheriff.</p> <p>But the court rendered judgment that the plaintiff recover the amount of the execution and interest, and decided that the judgment, which had been entered for the plaintiff in this case at the previous term, concluded the defendant from raising any objection to the right of the plaintiff to recover, or to the regularity of the original judgment, or from questioning the allegation in the declaration that the defendant was sheriff and Godfrey his deputy, to which the defendant excepted.</p> <p>1. The judgment ordered for the plaintiff only entitled him to nominal damages.</p> <p>In all actions where the damages are unliquidated, the plaintiff, after judgment in his favor, must go forward and show the nature and extent of his injury, or rest content with nominal damages. If the plaintiff here claimed more than nominal damages, he was bound to show what his damages were, and to do this it was necessary for him to prove the judgment -against Tarbell, and that the defendant was sheriff and Godfrey was his deputy ; Hyde v. Moffatt, 16 Vt. 284; Bates v. Loomis, 5 Wend. 134; Center v. Jones, 25 E. C. L. 283; Lewis v. Wells, 32 E. C. L. 497.</p> <p>2; At most the judgment, having been rendered without trial, only established the right of the plaintiff, prima facie, to recover the damages claimed; and any matter, which might have been given in evidence under the general issue to defeat the action, should be allowed in mitigation of damages; Collins v. Smith, 16 Vt. 10; Webb v. Webb, id. 636.</p> <p>The case finds that Mixer & Pitman were the assignees of the judgment against Tarbell, and that the default of the defendant’s deputy accrued while they were the owners of the judgment. The action, therefore, should have been brought by Mixer & Pitman, their rights alone being affected by the default, and no action can be maintained in favor of Bradley.</p> <p>The action is case, sounding in tort, and can be maintained only by the parties whose rights have been affected. Had the action been brought before the judgment, or in its present form before the assignment, it must have been in the name of Bradley. But Mixer & Pitman being the assignees of the judgment, and the injury having been sustained after they became such, an action on the case for that injury can be maintained only by them; McGregor v. Walden, 14 Vt. 450; Phillips v. Robinson, 4 Bing. 106; Clowes v. Hawley, 12 Johns. 484; Taylor v. Bates, 5 Cow. 376; 1 Chitty’s Pl. 66, 123.</p> <p>1. The fact that it was proved on the assessment of damages, that although the legal interest in the judgment was in the plaintiff, yet the beneficial interest and ownership of it was in another party, for whose benefit this action was brought, constitutes no bar to the recovery of the full amount of the execution, because an action of tort may always be brought in the name of the party having the legal interest in the subject matter, although another party may be equitably entitled to the damages -when recovered; Lord v. Bishop, 18 Vt. 141; Chase v. Plymouth, 20 Vt. 469.</p> <p>2. The defendant is concluded from setting up this defence, if it ever existed, by the judgment against him on the declaration. This judgment establishes every material averment in the declation, and is conclusive upon the right of the plaintiff to recover according to those allegations. The assessment of damages then becomes a mere matter of computation, and it is not claimed there is any error in computing the amount due upon the execution.</p>

<p> Attachment. Officer. Bond. </p> <p>The plaintiff, as an authorized person, served four writs by attaching personal property, which was afterwards, during the pendency of those suits, appraised and delivered up to the defendant therein, upon the execution by W. and R. of a bond to the plaintiff, conditioned that if they should pay the plaintiff, or any officer having executions issued in said suits, the appraised value of the property, or should indemnify him from all damages and costs which might accrue to him if such payment should not be made to meet such executions. Previous to the surrender of the property, the plaintiff had incurred certain expenses in keeping and apprasing it. Only one of the suits resulted in a judgment against the defendant therein, and the execution was placed in the plaintiff's hands, as an authorized person, for collection, but it was paid during its life by W. and R. to the judgment creditor; Held, in an action in favor of the plaintiff against W. andR. upon thebond; that they had sufficiently fulfilled it on their part, and that the plaintiff could not recover of them his expenses in keeping and appraising the property.</p>

<p> Execution. Receiptor. </p> <p>If personal property be attached and receipted, and the suit pass into judgment, and the receiptor turns out to the officer holding the execution other property of the execution debtor to an amount sufficient to satisfy the execution, and in regard to his title to which there is no dispute, and the officer levy the execution thereon, he can not voluntarily abandon the levy and collect the execution of the receiptor.</p> <p>But áliter, if after the levy and before the sale of the property upon the execution, it be claimed by another person under such circumstances as to create a reasonable doubt as to the right of the officer to sell it as the property of the execution debtor, and the receiptor refuse to furnish the officer \yith indemnity against the cousequences of such sale.</p>

<p>Book Account. The only dispute in this case was in regard to one item in the plaintiff’s account for the services of his son, Thomas, in the employment of the defendant, and one in that of the defendant for money paid to Thomas by the defendant. In regard to these items, it appeared from the auditor’s report that in March, 1855, the defendant hired of the plaintiff the latter’s minor son Thomas, to labor for the defendant upon his farm for eight months and a half, at eleven dollars per month; that in pursuance of this contract Thomas worked for the defendant from the 19th of March, 1855, till the 15th of October, following, when, by the defendant’s consent, but without the knowledge or consent of the plaintiff, and against his will, he left the defendant’s service. At the time the. plaintiff and the defendant made the contract, in March, 1855, the former notified the latter not to pay Tholnas any money on account of his wages, without the plaintiff’s consent, but the defendant claimed that Thomas was authorized by the plaintiff to receive the money paid to Thomas by him, and which constitutes the disputed item in the defendant’s account.</p> <p>To show that Thomas had such authority, the defendant offered in evidence before the auditor, the deposition of Thomas himself. The plaintiff offered parol evidence to show the falsity of the magistrate’s certificate upon this deposition that the plaintiff was .notified of and did attend at its taking, and from such evidence the auditor found that the plaintiff was duly notified to appear at the taking of the deposition before Joseph French, a justice of the peace, at his dwelling house in Amsterdam, in the State of New York, on the 27th day of October, 1857, at one o’clock, P. M.; that on the appointed day the plaintiff saw the justice at his house in Amsterdam, at one o’clock, P. M., and also at three o’clock, P. M., and was ready to proceed to take the deposition, but no one appeared for the defendant, and at three o’clock that afternoon the magistrate gave the plaintiff a written certificate that the time for taking the deposition had expired.</p> <p>On the same day, the defendant’s counsel, Jeremiah French, Esq., was on his way to attend the taking of said deposition, but finding'himself delayed by reason of an unusual storm, on his arrival at Schenectady, and some time before three o’clock of that afternoon, he telegraphed the magistrate to continue the time of taking the deposition till five o’clock of the same day. The defendant’s counsel arrived at Amsterdam about half past three o’clock that afternoon, and there saw the plaintiff and informed him that the taking of the deposition was continued till five o’clock, and requested him to be present at the magistrate’s office at that time, which the plaintiff declined to do. After the arrival of the defendant’s counsel the magistrate entered upon the back of the notice to take the deposition, a minute that at the request of the defendant’s attorney he continued the taking of the deposition .at one o’clock P. M., to five o’clock P. M. of that day, at the same place as before appointed. Previous to one o’clock P. M. of that day, the plaintiff had employed an attorney at Amsterdam to act as his counsel at the taking of the deposition, hut at three o’clock he settled with his attorney and discharged him. At five o’clock of that afternoon the magistrate proceeded to take the deposition. The attorney who had been employed by the plaintiff was present during part of the taking of the deposition, and participated in the examination of the witness, adversely to the defendant, but the auditor found that he was not authorized by the plaintiff to appear for him on that occasion, and that he himself disclaimed to act as the plaintiff’s counsel. The plaintiff objected to the admission of this deposition as evidence, but the auditor admitted it, and from the evidence contained in it, found that Thomas was authorized by the plaintiff to receive of the defendant the money paid him by the latter, amounting to twenty-three dollars.</p> <p>The auditor allowed the plaintiff for the actual time that his son labored for the defendant, being six months and eleven days, at the stipulated price of eleven dollars per month, amounting to #70.66</p> <p>Also for labor by the plaintiff for the defendant (about which there was no dispute), j 2.50</p> <p>$73.16.</p> <p>The auditor also allowed the defendant’s account (including the #23 paid to Thomas), at | $70.63,</p> <p>leaving a balance due the plaintiff of two dollars and fifty-three cents and interest.</p> <p>In case the court should be of the opinion that the plaintiff was entitled to recover the stipulated price for his son’s labor for the whole term of eight months and a half, for which the contract was made, deducting lost time, the auditor found that there should be allowed to the plaintiff, in addition to the above named balance, the further sum of eighteen dollars and forty-one cents.</p> <p>The plaintiff excepted to the auditor’s report because it did not allow the plaintiff the contract price for his son’s labor for the whole time contracted for, and also because the deposition of Thomas Ilennesy, from which alone the auditor found the plaintiff’s consent to the payment of the twenty-three dollars by the defendant to Thomas, was inadmissible, and therefore that item of the defendant’s account should have been disallowed. But the county court, at the March Term, 1858, — Bennett, J., presiding, — rendered judgment for the plaintiff upon the report, for two dollars and fifty-three cents and interest, to which the plaintiff excepted.</p>

<p>Assumpsit upon a promissory note for two thousand dollars, dated August 11, 1852, executed by the defendants by their president, William Swetland, and payable to William J. Odell, or order, on or before August 11, 1854, with interest, and indorsed by Odell to the Rutland and Burlington Railroad Company, and by that company to the plaintiffs. Pleas, the general issue, and nul tiel corporation, and trial by the court at the November Term, 1857, — Bennett, J., presiding.</p> <p>The plaintiffs gave in evidence the note described in the declaration, and also introduced testimony proving, as the court found, that Swetland was the president of the Plattsburgh and Montreal Railroad Company, at the date of the note, and executed it in that capacity; that the defendants were a corporation owning a railroad from Plattsburgh to the Canada Line ; that the directors of that company, deeming it advisable in order to secure the successful operation of their road, that a connection should "be formed by a ferry boat under their own control, between Plattsburgh, the southern terminus of their road, and Burlington, Vermont, by vote authorized Samuel F. Vilas and Moss K. Platt to purchase the steamer Francis Saltus for that purpose ; that that steamer was accordingly purchased of Odell and one Proctor for twenty-four thousand dollars, and the note in question, with others, given for her ; that the title of the vessel was taken to Vilas and Platt, and that they mortgaged her to the vendors to secure the payment of the promissory notes given for her; that the steamer was taken into the use of the defendants and was run upon the ferry between Plattsburgh and Burlington to transport passengers and freight in connection with their road; that their directors kept the accounts of her earnings, paid out of the company’s funds one of the notes given for her purchase, and expected that the defendants would have the profits of the boat, if there should be any ; that the note in question was transferred by Odell and Proctor to the Rutland and Burlington Railroad Company, and by them to B. T. Reed, who procured it to be discounted by the plaintiffs (whose existence as a corporation in Massachusetts was also proved), upon his guaranteeing its payment; and that after the commencement of this suit, Reed, upon the requirement of the plaintiffs, paid the amount of the note to them upon his guaranty, and that the suit was thereafter prosecuted for his benefit.</p> <p>The defendants gave in evidence the articles of association subscribed by their stockholders, which set forth that they organized as a corporation for the purpose of constructing, owning and maintaining a railroad from Plattsburgh to the Canada line, in pursuance of the provisions of the general act of the New York legislature to authorize the formation of railroad companies, passed in 1848; see N. Y. Revised Statutes, vol. 3, p. 583 ; and a special act of the same legislature, passed April 7, 1849, entitled, “ an act to declare the public use of a railroad from Plattsburgh to Canada line.” These acts were introduced in evidence, and the second section of the latter statute was as follows :</p> <p>“ Said corporation, when duly formed, may connect its road at the Canada line with any road in Canada, and have power as a corporation to contract for the transportation and delivery of, and to transport and deliver persons and property conveyed over its road, at any place beyond the termini of the road, -within or without this State, so far as the power to be exercised out of this State may be granted by this legislature.”</p> <p>It was admitted that the plaintiffs had commenced a proceeding in chancery against Vilas and Platt, and the defendants, to foreclose the mortgage of the steamer given to secure her purchase money, and that such proceeding was pending at the trial of this case. It was also admitted that the plaintiffs had sued the defendants upon another of the notes given for the purchase of the vessel, in one of the courts of the State of New York, and had recovered a judgment thereon against the defendants by default.</p> <p>The defendants also put into the case, subject to all questions as to its admissibility and legal effect, the written opinion of Judge James, of the New York Supreme Court, delivered in the case of Yilas & Platt v. Henry R. Campbell, which was an action for a trespass to the steamer Francis Saltus during the time she was held by Vilas and Platt for the defendants as above mentioned. In this opinion Judge James held, that by the purchase of the steamer from Odell and Proctor, the Plattsburgh and Montreal Railroad Company acquired no title to her, because the purchase was unauthorized by the statutes and articles of association under which that company was organized, and was entirely ultra vires, and that therefore the notes given for such purchase were entirely void as against the company.</p> <p>The defendants insisted that the plaintiff was not entitled to recover upon this evidence, and that Swetland had no legal authority to' give the note in question so as to bind them, but the court held otherwise, and rendered judgment for the plaintiffs for the amount of the note and interest, to which the defendants excepted.</p> <p>1. The powers of the Plattsburgh and Montreal Railroad Company are to be found in the articles of association which are its fundamental-law. The directors can not bind the company to pay for schemes beyond the objects of the incorporation.</p> <p>It is clear that the purchase of the steamboat to run upon Lake. Champlain, is not within the scope of the articles of association, and is not binding unless made so by the act of 1849 ; Ang. & Ames on Corp. § 256, 276; Coleman v. E. C. R. R. Co., 10 Beav. 1; H. & N. H. R. R. Co. v. Croswell, 5 Hill, 385; Penn. Co. v. Danbridge, 8 Gill & J. 248; Vilas & Platt v. Campbell, James’ opinion; McCullough v. Moss, 5 Denio, 564; 1 N. Y. Rev. Stat., p. 599, § 3.</p> <p>The act of 1849 does not confer any authority ipso facto. It authorizes the company to exercise such powers, but does nothing more, and as the articles of association do not embrace it, it is not to be inferred that the company intended to take such power.</p> <p>If that act is to receive the construction given to it by the court below, then it should be proved that the corporation accepted it.</p> <p>But that act was not intended to give anything further than power to make anything more than business connections with other carriers.</p> <p>Such acts are to be construed strictly; 21 Conn. 294:</p> <p>2. The plaintiffs took the note of Reed, who has paid it, thus extinguishing it as a cause of action in their behalf.</p>

<p>Appeal from the decree of the court of chancery. The bill set forth that about June 1st, 1844, the defendant, George Bicknell, purchased and received a deed of a certain piece of land in Underhill, from the defendant Bowen; that George Bicknell was then owing the ojrator seventy-five dollars; that after the execution and delivery of this deed from Bowen to George Bicknell, the orator commenced a suit against the latter to recover this debt, and therein attached the land so conveyed, and finally recovered a judgment against Bicknell; that in payment of this judgment, and before the lien created by this attachment had expired, George Bicknell, on the 14th of April, 1846, executed and delivered to the orator a quit claim deed of the premises, and the orator thereupon discharged the judgment; that soon afterwards the orator learned that the deed from Bowen to George Bicknell was not recorded in the town clerk’s office in Underhill; that as soon as he discovered the fact he requested George Bicknell either to place this deed upon record, or to allow the orator to do so, and that he refused, giving as a reason that he had deposited the deed with the defendant Hale, as security for an indebtedness from him to Hale, and that Hale would not surrender the deed to him until this indebtedness was paid; and that the orator thereupon requested Hale to place the deed upon record, or allow the orator to do so, but that Hale, though he admitted having the deed in his possession, refused to do as the orator requested. The bill prayed for a decree that the defendants, George Bicknell and Hale, should cause the deed in question to be recorded in the town clerk’s office in Underhill, and also that they should be perpetually enjoined from setting up any claim, either at law or in equity, to the premises in question, and ’that Bowen should execute to the orator a quit claim deed of the same land.</p> <p>The defendant, George Bicknell, answered that before the conveyance of the land in question from him to the orator, he deposited the deed from Bowen to him with the defendant Hale, so that the latter might draw up therefrom a mortgage of the same land to him, to secure a debt then due to him from George Bicknell, amounting to about seventy-five dollars, but that Hale had never drawn up such mortgage, or returned the original deed, though often requested so to do; and that at the time of the execution of the deed from George Bicknell to the orator, the latter was fully informed that the deed from Bowen was not in George Bicknell’s possession, but had been left with Hale for the purpose above mentioned.</p> <p>The defendant Hale answered that in 1844, previous to the conveyance from Bowen to George Bicknell, the latter applied to Hale to furnish him with sufficient money to buy the land in question, which he was then intending to purchase, and materials for the erection of a shop thereon, and promised to execute to Hale a mortgage of the land and shop, if he would do so ; that he assented to this request, and that thereupon the following written contract was executed by George Bicknell and delivered to him, viz:</p> <p>“Underhill, June 1, 1844.</p> <p>This instrument is to show that I have agreed with Stephen Hale for boards, shingles, nails and glass, for building use, and also work and sojne articles of provisions, on the following com ditions, viz: fbr the property said Hale shall turn in I am to give him my note payable in three years from this date, with interest annually, and give to said Hale a mortgage on the shop to secure said note. And the-materials are not to become my property, nor be at my disposal till secured by mortgage, as above described, and the work and all the materials that I shall put into the shop, are and shall be a pledge to said Hale that I will perform the conditions of this instrument.</p> <p>(Signed) George Bicknell;</p> <p>that under this contract he furnished George Bicknell with materials, etc., to to the value of ninety dollars; that on the 14th of October, 1844, he paid Bowen a portion of the purchase money of the land, George Bicknell paying the balance; that Bowen then executed a deed of the land to George Bicknell, which was immediately delivered by the latter to Hale, to be held as security for the advances made and to be made to him under the contract; that a mortgage was not then made because the shop was not then completed, nor the amount of the necessary advances known; that the shop has never been finished; that Hale still, held the deed, and that it had never been recorded; that Hale was unwilling, after the orator had attached the land on his debt against George Bicknell, to surrender the deed to be recorded, or to take a mortgage, for fear that he might thereby prejudice his own lien upon the premises; and that before the orator attached the premises he was fully informed of all the facts relating to Hale’s contract with George Bicknell, and his advances thereunder, and his equitable claim to the property as security therefor.</p> <p>These answers were both traversed by the orator, who also took George Bicknell’s testimony to sustain the allegations of the bill. Under the decision of the court, however, it is unnecessary to recite this testimony, No testimony was taken by the defendants. Bennett, Chancellor decreed that, as to the defendant Bowen, the bill should be dismissed with costs, and that the defendants, Bicknell and Hale, should cause the deed from Bowen to George Bicknell, mentioned in the bill, to be put on record in the town clerk’s office in Underhill, within sixty days from the date of the decree. From this decree the defendant Hale appealed-</p> <p>1. Admitting (which we do not) that Hale has an equitable lien upon the premises, which would be enforced in equity as against the orator, still, he is not thereby justified in utterly-defeating the rights of the orator in the land, by refusing to have the deed recorded,</p> <p>For'by the conveyance to the orator he became invested with a legal and equitable interest, at least an equity of redemption in the land, and the right to have his interest, whatever it may be, appear on the record. Hale has no right, even if he has a prior lien to the land, to impair or jeopardize the orator’s rights by withholding the deed, especially as the recording of the deed can not in equity affect any pre-existing rights between Hale and the orator.</p> <p>2. If Hale’s answer concerning the contract can be treated as responsive to the bill, and as evidence of the facts therein stated (which we deny), it appears from the answer itself that the con» tract is in writing, and consequently parol proof is not admissible to show its terms; but the original writing should itself be produced. This Hale has neglected to do,</p> <p>The prayer of the bill ought not to be granted, because it seeks to impair the lien or pledge which Hale has upon the land in question, by the deposit of the title deed with him as security for his advances, and which amounts to an equitable mortgage; 4 Kent’s Com. (4 Ed.) 150; 5 U. S. Cond. Rep. 233.</p> <p>This lien will be enforced in a court of equity against the mortgagor and all who claim under him with notice, either actual or constructive, of such deposit; 4 Kent’s Com. 150-151; Russell v. Russell, 1 Lead. Cases in Equity 499 (440) et seq.; 3 Powell on Mortgages 1058, a.; Fitzjames v. Fitzjames, Rep. Temp. Finch; Jackson v. Dubois, 4 Johns. 216; Head v. Egerton, 3 P. Wins. 280.</p>

Habeas Corpus. The facts which appeared on trial, and which are important to the decision of the casé are, that the relator resided in the State of New York, and while he was going through this State upon business, as he had been long accustomed to do, was arrested on the 17th of January, 1859, upon mesne process in a civil action founded on a note ekecüted since 1839, by virtue of an affidavit of the creditor’s agent, that he was about to abscond or remove from the State,…

<p>Book Account, The auditor reported that the account presented by the plaintiff was for forty-five dollars for building a barn for the defendant, and he found in relation thereto that the parties contracted for the building of a barn, in a good workmanlike manner, for the defendant by the plaintiff for that price ; that the barn was built in accordance with the contract, except that some portion of the work was not done in a good workmanlike manner, but that the defendant was present from time to time during the progress of the work, and upon its completion accepted the barn upon the contract, and the auditor therefore allowed the plaintiff’s account at forty-five dollars.</p> <p>The defendant presented an account of fifty-seven dollars and eighty-seven cents, but the auditor disallowed all of it except two items amounting to thirty-one dollars and ninety-six cents. The facts relating to only two of these disallowed items, become material under the exceptions to the judgment of the court below, and these were as follows:</p> <p>“ To one bag lent, .34</p> <p>To cash paid C. & Z. K. Drury, $13.04.”</p> <p>In relation to the first of these items, it appeared before the auditor that the plaintiff borrowed a bag of the defendant’s wife, and that he soon after returned it, and by her direction placed it in the defendant’s corn barn. The defendant offered his wife as a witness to prove that the plaintiff did not return the bag to her, nor place it in the corn barn, but the auditor refused to receive her testimony, and disallowed the item.</p> <p>In relation to the other item, the auditor found that the plaintiff, after the completion of the barn and after he had received payments amounting to thirty-one dollars and ninety-six cents, requested the defendant to pay the balance then due to him to C. & Z. K. Drury, to be applied upon a note held by them against the plaintiff, and that the defendant verbally promised to do so; that shortly afterwards the plaintiff informed C. & Z. K. Drury of this promise of the defendant, and requested them to call upon him for the balance of thirteen dollars and four cents then due, and when received to indorse that sum upon his note; that they accordingly did call upon the defendant for that sum, and that he declined to pay to them more than nine dollars, which he claimed to be the balance due from him to the plaintiff; that the plaintiff Was not present at this conversation, and the offer of the defend-. ant to pay nine dollars was not accepted by tbe Drurys ; that as soon as the plaintiff learned that his verbal order upon the defendant in favor of the Drurys had not been accepted by the former, he commenced this action to recover the balance due him; and that after the commencement of this suit and the service of the writ therein upon the defendant, the latter procured the Drurys to charge him in account with the sum of thirteen dollars and four cents, and to indorse that amount upon the plaintiff’s note held by them, but this was done by them without the plaintiff’s knowledge, and after they had been informed of the commencement of this suit. The plaintiff, upon being informed by the Drurys of what they had done in this respect, refused to ratify such action on their part.</p> <p>Upon these facts the county court disallowed the item for the bag, and also that for the money paid the Drurys, in the defendant’s account, and rendered judgment for the plaintiff for thirteen dollars and four cents and interest, to which the defendant excepted.</p>

<p> Trustee process. Household furniture. Attachment. </p> <p>If one have in his possession articles of household furniture, belonging to another, and he be sought to be made chargeable therefor as the trustee of the owner by the trustee process, it is a good ground for his discharge as trustee that the property in his hands is exempt from attachment, even though the principal debtor make no such claim.</p> <p>The principal debtor, who had been a hotel keeper, and who owned and had used in that business five carpets, five dozen knives and forks, seven large fluid lamps, twenty small fluid lamps, two fluid cans, five pails, twelve tumblers, eighteen goblets, and a few other articles of household furniture, allowed his successor in the hotel to use them in the same business. In an action against the principal debtor the person in possession of these articles was summoned as trustee, and sought to he made chargeable therefor; Held, that the property was exempt from attachment, and that the trustee should be discharged.</p>

Assumpsit. The action was originally brought against William Brewster and Cyrus Brewster, as partners under the firm of W. & C. Brewster, hut no service was made on William Brewster, the writ being returned non est as to him.

1. The deposition was inadmissible because the adjournment of the time of taking it, in the absence of both parties and without the request of or any notice to both of them, was without authority and illegal. Such a practice, if tolerated, would open the door to all sorts of fraud and deceit; 1. Aik. 264; 4 Vt. 405. 2. As against the plaintiff who is the payee of the note, the illegality or invalidity of the consideration may be insisted upon by the defendant.

Ejectment for certain premises in Alburgin Plea, the general issue, and trial by jury, at the February Term, 1857, — Peck, J., presiding.

Case to recover damages alleged to have been occasioned by the defendant’s bull in goring and wounding one of the plaintiff^s horses, and goring and killing another.

Book Account. The auditor reported the following facts: The plaintiff was, when his account accrued, a liquor dealer doing business in the city of New York, and the defendant, during the same time, was a tavern keeper in Middlebury in this State. The plaintiff’s account was for spirituous and intoxicating liquors furnished the defendant, and sold by him at his tavern in violation of the statute of 1852, and the subsequent acts on that subject.

Assumpsit upon a policy of fire insurance. The declaration set forth in substance that the plaintiff and one Johnson being-partners in trade, on the 13th of August, 1851, procured from the defendants a policy of insurance against loss or damage by fire to the amount of twenty-five hundred dollars on goods in their store, and five hundred dollars on produce in their store and mill adjoining, for six years from that date, and gave the defendants their premium note for three…

Trover for eight promissory notes, seven signed by one Prosser, and one by the defendant, and all payable to the plaintiff. Plea, the general issue, and trial by jury, at the June Term, 1858, —Bennett, J., presiding.

Assumpsit upon a promissory note for eleven hundred dollars, dated January 1st, 1850, signed by the defendants and payable to the order of B. G-. Bingham, in one year from date, and by him indorsed to the plaintiff. Plea, the general issue, and trial by jury, at the June Term, 1858.

. Debt upon an award. The case was tried by tbe court, at the December Term, 1858, — Bennett, J., presiding,; — upon the following facts, which were agreed upon by the parties.

Assumpsit upon three promissory notes, dated Detroit, Michigan, January 6th, 1855, signed by the defendant and others, and payable to the plaintiff or order in one day after date. Plea, the general issue, and trial by jury, at the June Term, 1858,— Bennett, J., presiding.

Case against the defendant, as constable of the town of Middlebury, for neglect in not returning an execution in favor of the plaintiff against one Church. Plea, the general issue, and trial by jury, at the December Term, 1858, — Bennett, J., presiding; , On trial the defendant admitted the recovery of a judgment by the plaintiff against Church; the issue of an execution thereon, and its receipt and non-return by the defendant as constable; as set forth in the declaration.

Indictment. The respondent moved to quash the indictment against him upon the ground that the word “foreman” was not annexed to the name of Ira Allen, whose name was indorsed by him on the bill under the words “a true bill.” It was admitted by the defendant, subject to its legal effect, that Ira Allen acted as foreman of the grand jury at the term of the court at which the indictment was found.

Account. The declaration set forth that the plaintiff and the defendants were jointly interested in certain lands to the amount of twenty thousand acres lying in McKeon county, Pennsylvania, the legal title of which was in the defendant Irving, but who held it in trust for the joint benefit of the plaintiff and the defendants, and that the plaintiff and the defendants were jointly interested in the profits arising from the sale of such lands ; that on or about the 1st of…

Ejectment for lot number six in the seventh range of the first division of lands in the town of Mount Tabor, drawn to the orig-? inal right of Daniel Harris. Plea, the general issue, and trial by the court, at the September Term, 1858,—Aldis, J., presiding.

Trespass for taking and carrying away eighty gallons of gin .and eight kegs.

Trespass for taking one mare, one horse, and one.double wagon. Plea, the general issue, and trial by jury, at the March Term, 1858, — Pierpoint, J., presiding.

Prosecution for bastardy. The warrant for the arrest of thé respondent was signed by a justice of the peace, and was served by William B. Thrall, as an authorized person.

<p> Audita Querela. Process. </p> <p>If a writ be served by leaving a true and attested copy with the defendaut, the fact, that the name of the authority signing it is omitted in the copy, will not necessarily defeat the effect of the service as a notice of the pendency of the suit and the trial day, nor constitute matter of abatement.</p>

Trespass for taking a sled, ox yoke, ring, staple, two chains, and a pair of oxen. Flea, the general issue, and trial by the court, at the September Term, 1858, — Aldis, J., presiding. Held: as to the notice and continuance of the suit, that the notice was sufficient, and that the continuance was taken with the consent of Collins.

Book Account. The auditor reported tbe following facts: The plaintiff’s account was for boarding one Jason F. Walker, and keeping his horse from June 17, 1854, till July 2, 1855.

Trespass. The action was originally brought before a justice of the peace, who rendered judgment for the plaintiff, and at the same time adjudged that the cause of action arose from the wilful and malicious act of the defendant, and that the defendant ought to be confined in close jail, etc. The defendant then appealed the case to the county court, but neglected to eater his appeal in that court, whereupon the plaintiff entered the case for affirmance, and the judgment of…

Book Account, The auditor reported that in 1845, when the plaintiff was seven years old, her father made a verbal arrangement with one Randall that the latter should take the plaintiff as his own child, clothe her decently, give her a common school education, .and find a suitable place for her, if at any time he could not keep her.

Assumpsit upon a bill of exchange drawn by the defendant on Ira Cochrane, payable to the defendant’s order, indorsed by him and accepted by Cochrane. Plea, the general issue, and trial by jury, at the June Term, 1858, — Aldis, J. presiding. The plaintiff proved the execution and delivery of the bill of exchange, its transfer to the plaintiff on the 4th of September, 1857, before maturity, and a presentment, protest and notice in due form, and rested his case.

Assumpsit. The case was referred, and the following is the substance of the referees’ report: “ The plaintiffs, who are commission merchants in the city of New York, offered in evidence before the referees the written agreement upon which this action was brought, which was executed in New York city, and was as follows : “This agreement, made the 3d day of May, 1853, between Joseph W. Corlies & Co. of the city of New York, parties of the first part; Davis & Rider of Manlius,…

Covenant. The case was referred, and the referee reported that the plaintiff claimed to recover for the non-payment of the rent of a saw mill and adjacent premises, according to the provisions of a lease thereof from the testator to the defendant, signed by both parties, for three years from March 16th, 1856, the annual rent being payable quarterly.

The plaintiff claimed to recover upon a promissory note for one hundred and fifty-nine dollars and eighty-six cents, dated June 27, 1857, signed by the intestate and payable to the plaintiff or bearer, on demand, with interest annually.

This was an action of covenant, declaring for the breach of an alleged covenant for quiet enjoyment in a perpetual lease from the town of Marlboro to Jonathan Rising, his heirs and assigns, of “ two hundred acres on the north side of right numbered fifty-seven, bounded north on the north line of said right, east on the east line of said right, and west on the west line of said right, and to extend so far south as to contain two hundred acres with a line parallel with the…

Knapp, deceased. The case was referred in the county court, and the following facts were reported by the referee: The plaintiff presented eight bills of account against the intestate which he claimed had, from time to time, according to their respective dates, been rendered to the intestate during his life time.

Replevin for a pair of steers. The case was tried by referees, from whose report it appeared that the defendant claimed title to the steers by purchase from one Callender, and the main question in the case related to Callender’s title to them.

Petition to set aside a judgment of a justice of the peace in favor of the defendant against the plaintiff, upon the ground that the plaintiff was unjustly deprived of his day in court.

Replevin for four yearlings, impounded by tbe defendant. The defendant filed an avowry alleging that the cattle were damage feasant on his premises on the 25th of August, 1854, that they-were therefore then impounded by him, and that he gave the plaintiff notice within twenty-four hours after the impounding to appear at a place named, within twenty-four hours after such notice, to choose appraisers of the damage done by the cattle.

Audita Querela to set aside a judgment rendered in favor of the defendant Wilder against the plaintiffs, as trustees of one Osgood, by a justice of the peace.

Assumpsit upon a guaranty executed to the plaintiffs by. the defendants, in the following words : “ Springfield, Vt. October 25, 1852. Messrs. Pierce, Clark & Co., Gents: I will become reponsible to you for eight hundred dollars on account of Leveret M. Snell. - Very Respectfully Yours, E. A. Knight.” The defendant pleaded the general issue, and the cause was tried by the court, at the May Term, 1858, — Redfield, Ch. J., presiding.

Trespass for one barrel of gin, one barrel of brandy and one barrel of cherry brandy. Plea, the general issue, and trial by' jury, at the December Term, 1858, — Redeield, Ch> J., presiding.

Trespass for a cow. Plea, the general issue, with notice of special matter in defence, and trial by the court, at the December-Term, 1858, — Redeield, Ch. J., presiding.