Volume 32 — Vermont Reports

Assumpsit upon a promissory note, signed by the defendant and one Safford, dated May 8, 1856, for two thousand dollars, payable to Warren C. French, or bearer, in sixteen months from date, with interest annually. Plea, the general issue, and trial by jury at the December Term, 1858, — Redeield, Ch. J. presiding.

Case for the alleged false warranty that a hundred sheep sold to the plaintiff by the defendant were sound. The declaration alleged that the sheep so sold became of no value by reason of being infected with disease at the time of sale, and also that in consequence of being so diseased they communicated the infection to other sheep of the plaintiff, which became of no value for that reason.

Book Account. The plaintiff’s account was for his labor from October 4,1852, to January 17, 1853,- and for a few bushels of oats furnished in November and December 1852. The auditor reported that the account was correct as to amount, and that the defendant Page hired the plaintiff to do the work charged, and that the oats were delivered by the plaintiff to him. The plaintiff claimed that the defendants were partners when the account accrued, and were j'ointly liable therefor.

Trustee Process. The facts in the case are sufficiently stated in the opinion of the court. The county court at the May term, 1858, Redfield Ch. J. presiding, adjudged the trustee liable for the amount of the note in question, after deducting the sum due from Tarbell to Keith, Hyde & Co., to which the claimant excepted.

Merrill’s estate. The appeal was taken by the heirs of the intestate. The cause was referred to a commissioner to take the account of the administrator, who reported the following facts :— Nancy Merrill, the widow of the intestate, was married to him in 1836. In 1837 her father gave her four cows, fourteen sheep, and a horse,, and told her to keep them as her own and for her own benefit.

Trover for a quantity of hemlock bark. Plea, the general issue and trial by jury, at the June Term, 1858, — Barrett, J. presiding.

Case for slander. The first count in the declaration alleged that the defendant falsely and slanderously said that the plaintiff was a whore, and set forth as damages that by reason of such slander the plaintiff had “been injured in credit, suffered loss of character, loss of hospitality among friends, loss of peace of mind and health, and had been subjected to great distress in feeling, loss of time, and had been otherwise greatly injured.” The second, count alleged the…

Trespass quare clausum fregit. The case was referred and the referee reported the following facts: At the time the plaintiffs’ railroad was constructed, a portion of their road bed and the land adjoining on each side was taken by them from the defendant, and the damages for such taking were duly appraised and paid according to the provisions of the plaintiffs’ charter.

This was a motion by the State’s attorney for Orange County, for leave to file an information, praying for a writ of quo warranto against the defendants, the corporation of the village of Bradford, and sundry individuals who claimed to act as officers of such corporation.

Slander; The declaration charged the defendant with hav* ing used-, at the house of one Mary Webster, and concerning a pretended sexual intercourse between the plaintiff and said Mary, the following words, viz: “ I saw Dickey (meaning the plaintiff) here (meaning where the defendant then was) on Friday night, (meaning Friday, the 80th of May, 1856.) I saw him and heard him and can swear t'o it, and can prove it.

Trover for a lot of hardware goods. Plea the general issue and trial by jury, at the June term, 1858, Barrett, J.¿ presiding. On trial the following facts appeared : Barnes & Brothers were manufacturers of shoe thread, &c. in Corinth, Vt.

It appeared that one of the three attesting witnesses to the will, though present in the same room when the testator and the other witnesses signed their names to the same, did not actually see one of the other witnesses make his signature, being engaged in looking in another direction at that time.

Ejectment. The only question considered by the supreme ■court in this case concerned the construction of a certain mortgage made December 30, 1850, by Samuel Eastman to Samuel A. and Thomas L, Tucker, of a piece of land in Newbury, and the buildings thereon, then and for several years thereafter occupied by Eastman, who was a married man, as a homestead.

<p> Railroads. Ejectment. Execution. </p> <p>The Western Vermont Railroad Company, before their road was laid oat or surveyed, procured a bond from B. to sell them such lands owned by him as should be required for their road. Their charter provided that the directors plight cause such surveys of the rqad to be made as they deemed necessary, and fix the line of the same, and that the company might enter upon and take possession of such lands as were necessary for the construction of their road and requisite accommodations. The survey of the road, made hy order of the directors, designated certain land belonging to B., as depot grounds, and the company paid him for and took the same, but never received any conveyance thereof from him, The plaintiff, having recovered a judgment against the company, levied his execution upon a portion of this land, and brought ejectment against the company to recover possession thereof. The referee, to whom the case was referred, found that a part of the land embraced in the levy was never necessary to the company for railroad puN poses, and would not become so prospectively; Held, that by B.’s contract with the company he was not bound to convey to them any greater quantity of, or estate in, his land than they required for depot accommodations: that under their charter the company could not acquire any more land, or any greater estate therein, for the purposes of a road bed or stations than was really requisite for such uses: that the estate so requisite was not one in fee simple, but merely an easement, and was therefore not subject to be levied upon by the creditors of the company: that when taken for such purposes the rule was the same whether the land was taken compulsorily by condemnation and the award of commissioners, as to its extent and price, or under the agreement of the parties as to one or both of these particulars: that under their charter the directors had power to lay out their road and stations as they saw fit, and that so long as they acted in good faith, and not recklessly, their decision as to the quantity of land required for depot accommodations would be regarded as conclusive,</p>

<p>Bill in Chancery to foreclose a mortgage. The facts in the case are sufficiently stated in the opinion of the court.</p>

Trespass qu. cl. Plea the general issue and trial by the court at the March Term of the Rutland county court, 1858, Pierpoint, J., presiding.

<p>Joinder of trespass and trover.</p> <p>A count in trespass for cutting down and carrying away a tree from the plain1 tiff’s land, which commences like a countin trespass qu. cl.fr., but concludes with an allegation that the trespass is “ contrary to the statute in such casé made and provided, whereby the plaintiff is entitled to recover of the defendant treble the aforesaid value of said tree, &c.,” will be construed to be d count for the penalt3r prescribed by the statute, (Comp. Stat., sec. 32, p. 550,) and not a count in trespass at common law.</p> <p>It is not competent for the county court to allow an additional count in trover for the tree to be filed to such a count upon the statute, either at common law, or by virtue of the statute (Acts of 1856, p. 13,) which allows the joinder of counts in trespass and trover, if for the same cause of action.</p> <p>Quere, whether if the original count were simply for trespass qu. cl.fr,, the new count in trover could be-added? Bbnnett, J.</p>

Assumpsit upon a promissory note. Plea, the general issue, and trial by jury, at the September Term, 1858, in Chittenden county,- — Bennett, J., presiding. The note declared upon was a joint and several promissory note, signed by one Ayres as principal, and by one Ward and the defendant as sureties.

Petition for the foreclosure of a mortgage of certain lands in Burlington, executed June 9th, 1843, by the defendant Cole to the oratrix, Lucy Churchill, to secure the pajnnent of a promissory note for fifteen hundred dollars, dated at “Burlington, June 9th, 1843,” and payable to the oratrix or order, in one year from date, with interest annually. The petition was brought at the September Term, 1858.

The bill set forth that on the 2d of January, 1849, the orator purchased of the administrator of the estate of one I. W. Cushman certain lands in Middlehury, and paid for the same ; that the orator’s father, John Hackett, senior, and Royal Flint assisted the orator in raising a portion of the money to pay for such purchase, by signing with him, as his sureties, a note payable to one Darling, and another note payable to the Bank of Middlehury; that for the purpose of securing…

Assumpsit for the price of a quantity of liquor sold by th& plaintiff to the defendant. Plea, the general issue and trial by jury at the September Term, 1858, in Chittenden county, Bennett, J. presiding.

Trespass for assault and battery. Plea the general issue and two special pleas in bar. The first special plea alleged that the defendant was a schoolmaster, and the plaintiff was one of his pupils, and was guilty of misbehavior as such pupil, for the purpose of punishing which the defendant did, in his school, a little beat and bruise the plaintiff, doing him no unnecessary injury, which was alleged to be the same trespass complained of in the declaration.

Assumpsit. The action was prosecuted only against Isaac Nye, one of the defendants, a non est return having been made as to tli.e others, Colvin and Allen.

<p>Replevin for a quantity of personal property consisting of stock, tools, &c., suitable for use in an iron foundry. Plea the general issue with notice of special matter in defence, a.nd trial by jury at the March Term, 1858, in Chittenden county, Bennett, J., presiding.</p> <p>It was admitted that the plaintiff had a perfect title to one ■ undivided half of the property in question, and the sole question at issue was in regard to the validity of his title to the other half.</p> <p>The plaintiff’s testimony tended to show that being a tenant in common with one Emerson of the whole property described in the declaration, he purchased the undivided half thereof in question from Emerson, that he paid him an ample consideration therefor, that his purpose in buying this moiety was to prevent a ruinous competition in business, as he owned another foundry within a short distance from the one owned by himself and Emerson, that u'pon the purchase he took actual possession of the property, and that it was subsequently taken from him by the defendant.</p> <p>The defendant’s testimony tended to show that he attached the undivided half in question, as a deputy sheriff, upon a writ in favor of one Brickett against Emerson, and took and held the property by virtue of such attachment, that Brickett was a creditor of Emerson, that Emerson at the time of the sale of the undivided half of the property to the plaintiff, was insolvent, that the object of both Emerson and the plaintiff in making such sale to the latter was to defraud the creditors of the former by withdrawing the property from their reach, and retaining it for Emerson’s use, that Emerson informed Root before the sale that such was his purpose, but not until after the terms of the bargain had been agreed upon, and the bill of sale drawn up but not executed.</p> <p>The plaintiff’s testimony tended to prove, not only that he paid a full consideration for the undivided half of the property, but also that he acted in good faith in the purchase of it, and bought it because he thought it essential for his own benefit that he should buy it so as to maintain the foundry business in the neighborhood, and that he did not make the purchase for the purpose of injuring or delaying the creditors of Emerson in their rights.</p> <p>The defendant requested the court to instruct the jury that if they should find that, at the time of the sale to the plaintiff, Emerson was insolvent, and that his object in making the sale was to defraud his creditors, and that these facts were known to the plaintiff at the time of the purchase, the sale would be fraudulent and void as to Emerson’s creditors, and that their verdict should be for the defendant.</p> <p>But the court, among other things not objected to, charged the jury that if Emerson’s object in making the conveyance of the moiety of the property in dispute to the plaintiff, was to withdraw it from the reach of his creditors and to delay them in their rights to collect their debts, and that Root, «knowing his object, bought the property of him to aid him in defrauding his creditors and to enable him to withdraw it from their reach, the sale would be fraudulent and void as against the creditors of Emerson, notwithstanding the plaintiff had given a full and ample consideration for the property.</p> <p>But if, on the other hand, they were satisfied that Root had paid a full consideration for the property and that he acted in good faith, and purchased the property, not for the purpose of lending himself to Emerson to aid him in withdrawing the property from the reach of his creditors, but for his own individual use and only because he thought it necessary that he should do so for the preservation and promotion of his own business interests, his title to the property would be paramount to that of the subsequent attaching creditors of Emerson, though Emerson was insolvent and designed to prevent by the sale the attachment of this specific property by his creditors, and though the plaintiff was aware of this when he bought and paid for the property.</p> <p>Under the instructions of the court the jury rendered a verdict for the plaintiff, and the defendant excepted to the omission of the court to charge as requested, and to the charge as given.</p> <p>We insist that if Root, with a knowledge of Emerson’s fraudulent intent in the sale, purchased the property, even for his own benefit, and paid a full consideration for it, he thereby nevertheless knowingly assisted Emerson in the perpetration of a fraud upon his creditors. In the eye of the law he participated in the fraud. His intentions of a pecuniary benefit to hirpself cannot be separated from the intention of Emerson to defraud his creditors. Root must, therefore, come within the provisions of the statute against fraudulent conveyances, which makes the conveyance null and void as against Emerson’s creditors ; Brooks v. Glayes, 10 Vt. 60, Williams, Ch. J.</p> <p>The property of an insolvent legally belongs to him for only one purpose, viz : to pay his creditors. He holds it as a trustee for that purpose alone. Any disposition of it by him for any other purpose is fraudulent, and one which he has no right to jnake. He, therefore, who purchases property of an insolvent, knowing his insolvency, and that he makes the sale for the purpose of defrauding his creditors, knowingly receives property from one who has no right to dispose of it in that wa.y and for that purpose. The fact that he pays a full consideration for it, and buys it because he expects to derive a personal benefit from it makes no difference. The voluntary assumption of the risk of paying the full price is made by him entirely in his own wrong, and will not avail him. The knowledge by the purchaser of the fraudulent intent of the vendor is the test of his title. The fraud.dulent design of the vendor would be of no effect unless he found a purchaser. One, therefore, who purchases, knowing the evil designs of the seller, notwithstanding he may have purposes of his own in making the purchase, still assists the other in his fraud by voluntarily becoming an element in the transaction, without the existence of which the fraud could not be consummated. Lowell v. Edgell, 4 Vt. 405 ; Bridges v. Eggleston, 14 Mass. 250 ; Dean v. Gonnelly, 6 Barr. 249-250 ; Ashmead v. Hean, 13-Penn, St. (1 Harris) 584 ; Zerbe v. Miller, 16 Penn. St. (4 Harris) 493-497; Johnston v. Harvey, 2 Penn. (Penn. & Watts) 82, 86, 93 ; Mateer -v. Hissim, 3 Id. 160 ; Lightfoot v. Tenant, 1 Bos. & Pul. 554.*</p> <p>.There was no taint nor invalidity in the title of Emerson to-■the property, and hence the case is quite different from those in which it is held that a purchaser with notice of a defect of title is affected by it.</p> <p>The plaintiff cannot be punished for bad motives in another, touching an act right in itself, when his own motives were horn? est, merely because he knows of the ill motives of the other. A mortgage or assignment made to prefer an existing creditor, and with a view on the part of the grantor to delay his creditors, is perfectly good by all the authorities, although the grantee knew the motive of the debtor. The reason is that the consideration being adequate, a proper legal motive is found in the grantee in the protection of his own interests. The transaction is real, not fictitious, and he receives the conveyance not to aid his debtor, but to aid himself in the proper protection of his own interests.</p> <p>This the jury have found was the case with the plaintiff. He purchased in order to save his own business from ruin.</p> <p>The statute against li fraudulent and deceitful ” conveyances does not apply to such a case. “Fraudulent” and “■ deceitful” mean the same thing, that is deceptive and colorable. A sale, there-, fore, which is made upon a good and adequate consideration, and which is a real transaction between the parties, is not prohibited. Holbird v. Anderson, 5 Term 235; Richer v. Evans, 28 E. C. L. 267 ; Wheaton v. Sexton, 4 Wheaton 503 ; 17 Vesey 262 ; 3 M. & S. 371 ; Ward v. Dixie, 53 E. C. L. 892 ; Beals v. Guernsey, 8 Johns. 348 ; Bridge v. Eggleston, 14 Mass. 247 ; Wickham v. Miller, 12 Johns. 320 ; Hall v. Foster, 12 Pick. 89 ; Harrison v. Phillips Academy, 12 Mass. 456 ; Lyon v. Rood, 12 Vt. 233; Colgate et al. v. Hill, 20 Vt. 56 ; Kittredge v. Sumner, 11 Pick. 51 ; Brooks v. Clayes, 10 Vt. 37 ; 4 Cushing 441; 40 Maine 284 ; Bush v. Sherman, 2 Doug. 176.</p>

<p> .Booh Account, Judgment. County Cowrt. Execution. Attach- , ment. Beceifptor. </p> <p>The omission in a County Court writ on book account, in which the ad damnum. is stated at one hundred dollars, to aver that the debit side of the plaintiff's account exceeds that sum will not invalidate a judgment for the plaintiff rendered without any objection from the defendant on that ground, if it appear from the whole record that the debit side of the plaintiff's account exceeded one hundred dollars.</p> <p>The case of Bates v. Downer, 4 Vt. 178, considered and explained.</p> <p>The Chittenden County Court at the November Term, 1857, on the 7th of December took a recess or adjourned, for the purpose of completing the business of its session, until the 21st of December, when it reassembled and continued its session until the 24th of the same month, when it finally adjourned. On the 7th of December an order was made by the Court that executions on judgments in trials completed might issue as of date of December 8th. Meld, that in order to preserve the lien of attachment on personal property, it was sufficient to put the executions into the hands of the officer making the attachments at any time within thirty days after the 25th of December, and that it was immaterial in this respect whether the judgments were completed before the 7th of December or not.</p> <p>An attachment of coal merelj by leaving a copy in the town clerk’s office, in the return of which the only description of the property attached is “ all the coal in the town of B.,” is invalid.</p> <p>But still one who has receipted to the officer a definite quantity of coal which the latter has actually taken possession of under such an attachment, will he bound to return it to respond to the judgment.</p>

Indictment under the fourth section of chapter 104, Comp. Stat., for setting fire to a barn with intent to burn the same. Plea, not guilty, and trial by jury, at the March Term, 1858, in Rutland county, — Aldis, J., presiding.

<p>Assumpsit; The plaintifi’s second count declared in the common form on a note executed by John Bradley and indorsed by the defendant, the payee, to the plaintiff.</p> <p>The defendant’s fourth plea was as follows :</p> <p>“ And for a further plea in this behalf as to the second count in said declaration, the said defendant says that the said plaintiff ought not to have or maintain her aforesaid action thereof against him, because he says that after the making of the promise in the said second count mentioned, to wit, on the first day of May, 1854, at said Burlington, in consideration that the said John Bradley would and did then and there give and deliver to the said plaintiff a certain other promissory note made by said John Bradley, and payable to the order of, and then and there endorsed by one Harry Bradley, for a certain sum of money therein mentioned, larger than the amount of said note in said second count mentioned, with the interest then accrued thereon, to wit, for the sum of lour thousand seven hundred eighty-six 15-100 dollars, arid payable at a certain time thereafter in said note specified, to wit, in four months thereafter, said note to be collateral to said note in said second count mentioned, (among other things) the said plaintiff theiffand there promised the said makers of said note in said second count mentioned to forbear the prosecution arid collection of said note in said second count mentioned, until the said note of the said John Bradley, so indorsed as aforesaid, should fall due and become payable according to the tenor of the same as aforesaid.</p> <p>And the said defendant further avers, that the said plaintiff did thereupon so forbear as aforesaid promised, to wit, at said Burlington..</p> <p>And the said defendant further avers that he, at the time of the making of said note, in said second count mentioned, and of the indorsement thereof, and the delivery thereof to the said plaintiff, was and ever since has been a mere surety of and accommodation indorser for said maker of said notes in said second Count mentioned, and that he never received nor had any consideration for his said indorsement thereof. Of all which the said plaintiff at the time of said delivery of said note to her, and before and at the time of making the said promise to forbear thereon as aforesaid, had notice, to wit, on the day and year aforesaid, at said Burlington. And this, the said defendant is ready to verify, wherefore he prays judgment, if the' said plaintiff ought to have or maintain her aforesaid action thereof against him.”</p> <p>To this plea the plaintiff replied as follows :</p> <p>“ And the said plaintiff, as to the said plea of the said defendant, by him fourthly above pleaded, says that by reason of anything in that plea alleged, she ought not to be barred from having and maintaining her aforesaid action thereof against him, the said defendaut, because (according to the form of the statute in such case provided,) she says that she, the said plaintiff, did not in consideration that said John Bradley would and did deliver and give to her the note of said John, Bradley, dated the first of May, 1854, for 4786 15-100 dollars, payable in four months after date to the order of Harry Bradley, and by him indorsed, (or any other note,) promise the makers of said note in said second count mentioned, to forbear the prosecution of said note in said se'cond count mentioned, until such note of said John Bradley should fall due and become payable according to the tenor thereof, nor did the said plaintiff so forbear. Nor was said defendant a surety of and accommodation indorser for' the makers of said note, nor did -the said plaintiff have notice that the defendant was surety and accommodation indorser for said makers, in manner and form as the said defendant hath in his said plea alleged, and this she prays may be inquired of by the country/’</p> <p>To this replication the defendant demurred specially. The causes of demurrer sufficiently appear from the opinion of the court. <</p> <p>The county court, at the September Term, 1858, in Chittenden eounty, — Bennett, J. presiding, — adjudged the replication insufficient, to which the plaintiff excepted.</p>

The first count in the complaint was for selling, the second for furnishing, and the third for giving away intoxicating liquor contrary to 1 aw.

It appeared that the plaintiff’s claim, which consisted of notes and a book account, accrued and became due in 1843; that the intestate died on the 3d of July, 1847; that immediately thereafter administrators were appointed on his estate, and also commissioners to receive, examine and adjust all claims against him, and that the 11th of February, 1848, was fixed by the probate court as the limit of the time for the presentation of such claims; that the plaintiff’s claim was…

Book Account. The auditor reported the following facts: On the 30th of September, 1857, the plaintiff contracted to sell the defendant a quantity of mess pork at twenty-three dollars per barrel, which the plaintiff was to prepare and deliver at the defendant’s store in St. Albans.

Ejectment for lot No. fifty of the eighth division in that part of Burlington now annexed to Williston, containing twenty-three acres. Plea not guilty and trial by the court at the November Term, 1857, Bennett, J., presiding.

Assumpsit for money had and received. Plea, the general issue, and trial by the court, at the September Term, 1858, in Chittenden county, — Bennett, J,, presiding.

Case. Plea not guilty and trial by the court, at the March Terra, 1859, Barrett, J., presiding. The following facts appeared on trial: The defendant, during the winter of 1857-8, was the prudential committee of a school district, in which the plaintiff, who was then eighteen years of age, resided with his father.

Assumpsit. Plea the general issue and trial by jury at the September Term, 1858, Barrettj J., presiding.

Trover for a quantity of dress silk goods. Plea not guilty and trial by jury at the March Term, 1859, — Barrett, J., presiding.

Book Account. The auditor reported the following facts: The writ was served on the 24th of November, 1857, and the plaintiffs claimed to recover the amount of three bills of goods purchased of them in Boston by the defendant’s agent, one Dodge, on the 3d of September, the 11th of September, and the 8th of October, 1857, respectively.

Information in three counts; two for horse stealing, and one for stealing a harness.

Writ of Error; The writ set forth a copy of the record of a judgment in favor of the defendants in error against the plaintiffs in error, by which it appeared that at the March Term, 1857, the former commenced an action of assumpsit against the latter and one Jacob Kent of the State of Illinois, with the following declaration t “In a plea of the case, for that by an act of the legislature of the State of Vermont, approved November 18th, A. D. 1849, a corporation by the name…

<p> Habeas corpus. Exceptions. Contempt of court. Justices of the peace. </p> <p>Issues and questions of law arising upon the trial of a writ of habeas corpus before the county court, may be passed to the supreme court upon exceptions.</p> <p>A court, which has power to punish for contempt, is the exclusive judge whether misbehavior in court amounts to contempt or not; and the exercise of such power in such cases cannot be revised by any other tribunal.*</p> <p>Justices of the peate while holding courts have power to punish for contempt.</p>

Habeas Corpus. The petition of the relator Was as follows: “ To the Hon. the supreme court next to be holden at Irasburgh, in and for the county of Orleans, on the first Thursday next after the third Tuesday in August, 1859.

Trustee Process. The facts in the case are sufficiently set forth in the opinion of the court. Thp county court, at the December Term, 1858, — Bennett, J., presiding, — adjudged the trustee liable, to which the trustee excepted.

Covenant. The plaintiff declared upon the following agreement : “ articles or agreement indented, made and agreed upon this 17th day of July, in the year of our Uord one thousand eight hundred and fifty-six, between Kelley & Roberts, of Derby, in the county of' Orleans and State of Vermont, on the one part, andS.

Case. Ploa, the general issue, and trial by jury, at the December Term, 1858,— Alms, J., presiding. The plaintiff being indebted to the defendants upon a note for one thousand dollars, procured a discount at the Caledonia County Bank in Danville, and requested the cashier of the latter bank to send the proceeds, amounting to four hundred and eighty-four dollars and seventy-five cents, by express to St. Albans, where the defendants’ banking house was located.

Complaint tor bastardy. Tlie complaint was entered in. the county court at the May Term, 1857.

AssumpsiIt upon a joint and several promissory note for one hundred and seventy-five dollars, executed by one Pennock, the defendant and one Stewart, and payable to the plaintiff or bearer Plea, the general issue, and trial by jury, at the December Term; 1858, — Aldis, J., presiding!

Replevin for two cows. The defendant filed an avowry set* ting forth that he took the cows in question as collector of school district No. 13 in Concord, by virtue of a warrant issued to him for the collection of a school tax laid by that district.

Debt upon a bond executed to the plaintiff by the defendants, and conditioned that the defendant, Walter Buchanan, should abide the submission made by him and the plaintiff to certain arbitrators of all matters in difference between them, and should keep the award of such arbitrators, The submission contained an agreement by the parties to the arbitration “ to abide the award of said arbitrators and cost to be awarded to the parties who may succeed in said action, meaning to…

The plaintiff's declaration contained six counts. The fifst was as follows: “In a plea for that the said defendants, heretofore, to wit, on the first day of December', 1849, executed their bond of that date,- No. 114, signed by their President, Erastus Fairbanks, and their Treasurer, Nathaniel P. Lovering, acknowledging that they were indebted to Joseph Tilden, or hearer, in the sum of two hundred dollars, and promising to pay said sum to the holder of said bond at the…

Case for libel, The cause was tried by jury, at the December Term, 1858, — Poland, Ji, presiding, On trial the plaintiff offered the deposition of one Marstin, to the admission of which the defendant objected on the ground of the insufficiency of the service upon him of the citation to appear at its taking. The defendant was a resident of Groton, in Caledonia county, where the citation was served upon him.

Case for slander. The declaration was as follows : “In a plea of the case for that the plaintiff says that he now is an honest and faithful citizen of the State, and as such has always behaved and conducted himself, and until the committing of the several grievances by the defendant hereinafter mentioned, was always esteemed, reputed and accepted by and amongst all his neighbors and other good citizens of the State to whom he was in any wise known, to a be person of good…

Case against the defendant as sheriff of Essex county for the default of'his deputy, one Root, in not levying and returning an execution in favor of the plaintiffs against the Island Pond Lumber Company.

Book Account. The auditor reported that shortly previous to the 1st of April, 1855, the plaintiff and defendant had a conversation relative to some hay which the former proposed to sell to the latter, which conversation, however, did not then result in any contract; that a few days afterwards one Brooks called on the plaintiff and represented to him that the defendant had directed him to purchase the hay of the plaintiff on the defendant’s account; that the plaintiff then…

Complaint eor bastardy. Plea not guilty, with notioe that the defendant would rely on a settlement and discharge from the plaintiff. The cause was tried by the court at the December Term, 1858, — Poland, J., presiding. The defendant admitted that he was the father of the plaintiff’s bastard child, but he offered in evidence the following receipt: “ Danville, January 26th, 1858.

The declaration in this case was as follows : “In a plea of the case for that said town of Walden have for a long time, to wit: for the space of twenty years now last past before the bringing of this suit, been in the constant practice of electing each year at their annual March meeting, a constable and collector of taxes, and of paying to the collector two per cent, on all moneys collected on the town and town school taxes in said town, and of permitting the said collector…

Habeas Corpus addressed to the sheriff of Addison county, who made return that he held the relator in custody in the common jail of that county, by virtue of a warrant signed by Hon.' Calvin Tilden, judge of probate for the district of Addison.This warrant set forth that previous to the 1st df January, 1857, the relator and Alonzo L. Bingham wore appointed by the probate court for the district of Addison, administrators of the' estate of Reuben P. Bingham, deceased ; that on…

Bill in chancery. From the bill, answers and testimony, it appeared that in August, 1856, Daniei Tarbell, Jr., then a director in the South Royalton Bank, a corporation organized under the general hanking law of 1851, requested the orator, Spencer Smith, to execute to such bank a bond and mortgage of his home farm in Tunbridge to enable the bank, by an assignment of such bond and mortgage to the treasurer of the State, uüder the provisions of that law, to obtain an increased…

Assumpsit. The first count was as follows: “ In a plea of the case for that the said defendant heretofore to wit, at Hartford aforesaid, on the first day of March, 1856, in consideration that the plaintiff would sell to the defendant, at his request, a certain farm situated in Lebanon, in the county of Grafton, and State of New Hampshire, which the said plaintiff had bid off at public auction, at and for the sum of seven hundred and forty-seven dollars and fifty cents, then…

Assumpsit against the defendant as indorser of a promissory note, dated Lebanon, N. Hi, January 1st, 1856, for one hundred and fifty dollars, signed by one Wood and payable to the defend* ant, or bearer, in six months from date. Plea, the general issue, ahcl trial by jury, at the December Term, 1858, in Windsor county,— Redeield, Ch. J., presiding.

Trespass qu. cl. Plea not guilty, with notice of special matter in justification, to the effect that the defendant was one of the trustees of the village of St. Johnsbury, elected under the provisions' of the act incorporating that village, approved November 23, 1852 ; that by that act the village were authorized to construct and maintain such aqueducts and reservoirs as they should judge best, and to lay out, alter, maintain, clean, improve and repair the streets therein ;…

Trustee Process. The case was referred to a commissioner who reported the following facts : The principal debtor, Wood, had for some time previous to-October 5th, 1858, been engaged in the business of blacksmithing and carriage making at Derby, and the trustees had each been individually .employed by him as workmen, and he was indebted to each .of them in different amounts.

Indictment in six counts. The first three counts charged the'respondent with attempting to procure the miscarriage of Olive Ashe by means of instruments, in consequence of which she died. The fourth and fifth counts charged the same attempt by means of poisons and noxious things, with a similar result, and the sixth count charged the crime of manslaughter by causing the death of the said Olive by wounding her with instruments in the womb.

Trespass for assault and battery. The declaration, in addition to the usual charge of an assault and battery, charged that the defendants struck the plaintiff a violent blow upon the left side of his… Held: kicked him in the side and breast and with great violence placed his. knees upon the plaintiff’s breast and choked him, and in other respects so injured him as to endanger his life.

Assumpsit to recover expenses incurred for the support of one Joseph Burrows, a pauper. Plea the general issue and trial by the court in Orleans county, at the June Term, 1858,— Poland, J., presiding. The following facts were found by the court: The legal settlement of the pauper was in Charleston, and that town had aided him occasionally prior to November, 1855, for a year previous to which time he had been residing with his son^ Iiiram Burrows, in Charleston.

Assumpsit. The declaration contained two counts, which were as follows: “ In a plea of the case for that, heretofore, to wit, on or about the first day of October, 1853, one Stephen Blaisdell, a transient person, was suddenly taken sick and disabled, and confined at the house of the plaintiff’, in said Royalton, and was in need of relief, and so continued to be sick and disabled and in need of relief at said house for a long space of time, to wit, for the space of five…

Assumpsit. The declaration set forth that in consideration that the plaintiff promised the defendant to extend its railroad from St. Jolmsbury to the north line of' (his State, in the town of Derby, the defendant made the following written promise to the plaintiff, viz : “ Connecticut & Passumpsic Rivers Railroad Company.

<p>The facts in this case sufficiently appear in the opinion of the court.</p>

Indictment for breaking jail. The indictment charged that the respondent, “ on the 10th of November, 1858, was a prisoner confined in the common jail at Irasburgh, in Orleans county, by and under the authority of the State of Vermont, and then and there, well knowing the premises, with force and arms, unlawfully did break open and counsel aid and assist divers other ill disposed persons (to the jurors aforesaid as yet unknown) in breaking open the jail aforesaid, while the…

Scire eacias upon a recognizance by the defendant to tbe plaintiff for costs in a suit in favor of the plaintiff against William and Willard Leland, which was appealed from before a justice by said Belauds. The facts in the case are sufficiently set forth in the opinion of the court.

Assumpsit. The declaration, the facts in the case, and the charge of the county court, so far as they are material to the questions decided, are sufficiently stated in the opinion of the court. In addition to the special count mentioned in the opinion of the court, the declaration also contained the common counts. To the charge of the court as detailed in the following opinion, the defendants excepted.

Petition fob the foreclosure of a mortgage. The facts in the case and the decree of the chancellor appear in the opinion of the court. . The defendants appealed from the decree of the chancellor.

Trustee process. The cause was referred to a commissioner) who reported that on the 18th of December, 1854, the defendant Paine, a resident of the State of New York, being insolvent, made in that State an assignment of all his property, both real and personal, to A. Fellows and Ilenry H. Hathorn, also residents of New York, in trust for the benefit of his creditors.

Trespass for a quantity of dry goods, and a horse, sleigh and harness. Plea, the general issue, and trial by jury, at the' March Term, 1859, — Bennett, J., presiding.

<p> Practice. </p> <p>A party who has set a canse down “not for the jury,” dnd has failed to show to the court a good cause of continuance, is not entitled to have the damages assessed by the jury.</p>

Case to recover damages for the death of the plairiliff’s intestate, occasioned, as the declaration alleged, by the explosion of a locomotive which the intestate was running as engineer upon the road and in the employment of the defendants, such explosion being alleged to have occurred in consequence of the defendants’ neglect. The action was brought by the plaintiff for the benefit of the widow and children of the intestate.

Book account. — The account presented by the plaintiffs was for a quantity of brandy, amounting to sixty-four dollars and fifty cents, and a quantity of gin amounting to forty-two dollars, together with interest from April 6th, 1853, and in regard to these items the auditor reported the following facts : From 1851 until the time of trial, the plaintiffs resided and did business in the city of New York, as importers of and dealers in intoxicating liquors.

Indictment against Peter McDonnell, John Bain, and John Kelly, for the murder of John T. McKeen. Plea, not guilty, and trial by jury, at the September Term, 1859, — Bennett, J., presiding. The jury rendered a verdict of guilty as to McDonnell, and not guilty as to Bain and Kelly.

Book account. The auditor found that the account presented by the plaintiff against the defendant, amounting to one hundred and sixty-five dollars and forty-seven cents, was correct, and that the plaintiff was entitled to recover that sum unless his claim was in law satisfied by the following facts : In 1854 the plaintiff was a candidate for the office of town representative in Westford, where both the parties resided.

Debt upon an award by commissioner of the damages sustained by the plaintiff on account of his land being taken by the defendants for the use of their railroad. The declaration also contained a general count for the use and occupation of the plaintiff ’s premises by the defendants. Plea the general issue and trial by jury, at the September Term, 1858, Bennett, J., presiding.

Trover for a quantity of cord wood. Plea the general issue and trial by the court at the March Term, 1859, — Bennett, J., presiding.

Assumpsit for money paid. Plea, the general issue. The ease was referred and the referee reported the following facts : The defendants, during the year 1856, and previous to that time, were manufacturers of lime at Willsborough, on Lake Champlain, in the State of New York, and were in the habit of transporting it to the city of New York for sale, and for that purpose owned and used two canal boats, whioh carried their lime from Lake Champlain through the canal to the Hudson…

Information for stealing a horse. Plea not guilty, and trial by jury at the April Term, 1859, Aldis, J., presiding.

Trespass in three counts, the two first quare clausum fregit, and the third de bonis asportatis. Plea the general issue, with notice of a license from the plaintiff to the defendant, to do the acts complained of. Trial by jury at the September Term, 1859, — ■ Aldis, J., presiding. The plaintiff introduced in evidence a deed from Alexis White to Elijah Hungerford and Hollis Hastings, of the locus in quo, dated March 23, 1838.

The facts in this case are sufficiently stated in the opinion of the court. The county court, at the April Term, 1859, — Altos, J., presiding, — rendered judgment for the plaintiff for the amount reported by the referee as due him, to which the defendant excepted.

Ejectment for a tract of land in South Hero. Plea the gen-> eral issue, and trial by the court at the August Term, 1859, — i Addis, J., presiding.

Case. The only question in this cause related to the admissibility of a deposition offered by the plaintiff, to the admission of which the defendant objected, on the ground that he had not been legally notified of its taking. It appeared that the only notice which the defendant received of the taking of the deposition in question was by a citation, which was served on him by an officer merely by reading.

Case for an injury to the plaintiff, occasioned by the insufficiency of a highway which the defendant was bound to keep in repair. Plea, the general issue, and trial by jury, at the June Term, 1859, — Bennett, J., presiding. No question was made but that the plaintiff, on or about the 3d day of May, 1858, received a personal injury by being thrown from his wagon while crossing a water bar upon a highway, which it was the duty'of the defendant to keep in repair.

Trespass for cutting down and removing a fence built by the plaintiff. Plea, the general issue, and notice; trial by jury at the December Term, 1859, — Pierpoint, J., presiding.

Information in two counts, the first charging rape, and the second an assault with intent to commit a rape. Plea not guilty, and trial by jury at the December Term, 1859, — Pierfoint, J., presiding. The prosecution called Orilla Yincent, the person upon whom the offence was alleged to have been committed, as a witness, who testified in substance as follows: “ On Sunday morning, Mr. and Mrs. Rockwell went to meeting. I was their hired girl. No one else there.

<p>Case. Plea, the general issue and trial by jury, at the December Term, 1859, — Pierpoint, J., presiding.</p> <p>The plaintiff’s evidence tended to show that in January, 1859, the defendant, who was a pedler, had stopped his horse, attached to a traverse sleigh, with a pedler’s box upon it, in front of a house in Granville, a little out of the traveled path, and while standing at the rear of his sleigh, taking out some goods and holding a box of goods in his hands, the plaintiff drove up in his cutter, passed between the defendant’s sleigh and the house, halted a moment and passed on ; that about the same moment a brother of the plaintiff drove up in another cutter and passed outside of the defendant’s sleigh, so that both cutters passed the defendant’s sleigh nearly at the same time, the plaintiff’s brother first and the plaintiff immediately following ; that the defendant’s horse thereupon started, and gradually increasing his pace to a run, overtook the plaintiff, and the plaintiff’s sleigh, in consequence thereof, was injured and the plaintiff’s horse was killed.</p> <p>The defendant’s evidence tended to show that he was in the pursuit of his business, as a licensed pedler, at the time of the accident; that he had owned the horse about one month, and’ was accustomed to leave him to stand without being tied, as the occasion of his. business required, and had never known liim to run or start before or after this occasion, and that he was a fit horse to be so left that a.t the time of the accident he did all he could to stop, his horse, but was unable to do so. He also gave evidence tending to show that his horse was started by the plaintiff and his brother giving signals to their horses to start when opposite the defendant’s horse.</p> <p>The defendant asked the court to charge, the. jury that the question of negligence, the facts being found of conceded, was one for the court, and that upon the evidence, the defendant was not chargeable with negligence, and the action could not be maintained. That if the jury found that at the time of the accident the defendant was standing at his sleigh in the manner that the evidence showed, and in the pursuit of his lawful business ; that his horse was one fit to be left and never known to start or run ; that he was started by the passing of the other horses in the manner they did pass, and the defendant did all in his power to stop him, he was not guilty of negligence and was not liable in this action.</p> <p>The court charged the jury that if they found that the defendant left his horse standing without being tied or fastened in any manner, and went to the hind end of his sleigh to transact business there, leaving the lines beyond his reach, and having no means of immediately controlling his’horse in ease he should start, as all the evidence tended to show, and that he knew that the other teams were about to pass his team, under the circumstances detailed by the defendant himself, and that men of ordinary care and prudence would not have so left a horse under the same circumstances, then the defendant was guilty of negligence, and liable for all the injury claimed that they found the plaintiff had sustained solely in consequence thereof; and that in determining the question as to what men of ordinary prudence would have done, they would take into consideration the evidence of the length of time the defendant had owned the horse he was then using; the propensity or disposition of the horse to stand without fastening, and the knowledge the defendant had thereof, together with all the other evidence bearing upon this point. To this charge and the refusal to charge as requested, the defendant excepted.</p> <p>The jury rendered a verdict for the plaintiff, and the defendant moved for a new trial on the ground that the verdict was against the weight of evidence. The motion was overruled, and the defendant excepted.</p>

Book Account. The auditors reported the following facts: The two defendants were the accredited agents, in Boston, for the New England Protective Union, Devereux for making purchases of goods, and Noyes for selling produce. They entered upon the duties of their respective agencies about the beginning of the year 1853, and continued until 1857, during which period, and after the beginning of 1856, the plaintiff’s account accrued.

This cause purported to be an appeal by the defendant from a judgment rendered by Charles L. Williams, Esq., a justice of the peace for Rutland county, on the first of November, 1858.

Book Account. The auditor reported that the plaintiffs were attorneys, and that their account was for professional services and attendant expenses rendered and incurred under the following circumstances: In 1849, shortly after the defendants organized as a corporation, they entered into a contract with R. & Gr.

Trover for the conversion of ten of the mortgage bonds issued by the plaintiffs for one thousand dollars each, dated October 1st, 1852, and payable to one Eastman, or bearer, October 1st, 1867, with interest payable semi-annually, at seven per cent, per annum. The writ was returnable at the March Term, 1855, and the declaration consisted of three counts, the first of which claimed merely a general damage of twelve thousand dollars.

Book account. The account presented by the plaintiff was for money lent the defendant and for the plaintiff’s services and expenses while in the employment of the defendant.

Cash: against the defendants for negligence as common carriers.

Appear by the plaintiff from tlie decision of commissioners of the probate court, allowing a claim in offset against him in favor of tlie defendant. Declaration by the plaintiff on book account. Declaration by tbe-defendent in offset upon two promissory notes made by tlie plaintiff to Sarah. Stearns, in her life time.

Case for obstructing and disturbing the plaintiff in the use and enjoyment of a water privilege for bis saw mill. Plea tbe general issue and trial by jury at the March Term, 1859, of the Rutland county court, — Pierpoint, J., presiding.

Book Account. — The only item in the plaintiff’s account disputed by the defendant was a charge of seven dollars and thirty cents for a harrow sold by the former to the latter.

Case for slander. The substance of the several counts of the declaration was, that at the time of the committing of the grievances therein mentioned, the plaintiffs were merchants, doing business in Pawlet, under the name of the “ New England Protective Union, Division No. 280,” and that the defendant, on the 27th day of August, 1855, and on divers days between that time and the commencement of this suit, to injure them in their business and credit, falsely and maliciously…

Bill in Chancery. The bill set forth, in substance, that for sóme months previous to the 1st of September, 1857, John Robertson, Edwin R. Robertson, and 3.0.

Assumpsit upon a promissory note signed by the defendant and payable to one Burnham, or bearer. Plea, the general issue and trial by jury at the June Term, 1859, — Pieepoint, J., presiding.

Case for obstructing a stream, and thereby causing water to flow upon the garden and into the cellar of the plaintiff. Plea, not guilty, and trial by jury at the December Term, 1857,— Aldis, J., presiding. Samuel Safford was originally the owner of the defendants’ water privilege, of the lands covered by and surrounding their mill-pond, and of the plaintiff’s land described in his declaration.

The facts in tbe case are sufficiently stated in the opinion of the court. The appellee moved in the county court that the appeal be dismissed, and the court at the December Term, 1859, — Kellogg, J., presiding, — dismissed the appeal, to which the appellants excepted.

Bepleyin for a horse and harness. The case was referred to a referee who reported certain facts showing that the property replevied belonged to the plaintiff and, while in his possession, was attached and taken in a suit in favor of the defendant Love against one Mallory.

Trustee Process, The commissioner reported that in February, 1856, Hiram Phelps left with the trustee a quantity of dry goods for sale on commission, which Phelps then informed him belonged to himself alone, but that he afterwards told him that they belonged to himself and the defendant, Leach, as partners ; that before the service of this trustee process the trustee had paid to Phelps from the avails of the sale of a part of such goods three hundred and twenty-five dollars,…

Assumpsit. The opinion of the court sufficiently sets forth all the material facts in the case. The county court, at the April Term, 1859, — Redeield, Ch. J. presiding, — rendered judgment for the defendant for the excess of the note, offered by him in offset, over the amount of the plaintiffs’ claim, as found due by the referee, to which the plaintiff excepted.

Trustee Process. From the commissioner’s report it appeared that on the 22d of March, 1856, the trustee, Johnson, was indebted to the defendant in cash thirty-one dollars and forty-six cents, and in slate of second quality to the amount of one hundred and eighty dollars, payable on demand, at the trustee’s quarry, and that on that day one Jacobs, one Gregory, and the plaintiff brought their several actions against the defendant, and in the order above named, and each…

Trespass for taking two wagons. Plea, the general issue, with notice of justification that the defendant took the property as collector of school district No. 5, in Dover.

Debt upon a bond given to the probate court by the defendant Niles, as administrator of the estate of Ezra Gleason, and executed by the defendant Steen as surety. The writ was made returnable at the April Term, 1859, but at the time of the return of the writ no copy of the bond given by the defendants was filed, nor any certificate from the probate court that permission had been granted by that court to prosecute the same.

Book Account. The action was originally brought before a justice of the peace, from whose judgment it was appealed. The plaintiff’s account, was for the labor of his minor son, Albert., and the use of his horse and harness in the defendant’s service, and the debit side of his account as presented before the auditor, was less than one hundred dollars.

Petition, under sec. 8, chap. XXXVI, Comp. Stat. p. 281, to set aside the judgment of a justice of the peace against the complainants in favor of the defendant.

Assumpsit. 'Plea, the general, issue and trial by jury at the April Term, 1859, — Redeield, Ch. J., presiding.

Assumpsit for goods sold and delivered. The plaintiffs were the assignees, under the insolvent laws of Massachusetts, of Arthur Stowell, who was a citizen of that State, and who, prior to his insolvency, sold the goods in question, in Massachusetts, to the defendant, who then, and at the time of the appointment of the plaintiffs as Stowell’s assignees, was also resident there.

Assumpsit upon tlie defendant’s subscription for twenty shares of the capital stock of the plaintiffs’ company. Plea, the general issue and trial by jury, at the May Term, 1859, — Redeield, Ch. J., presiding.

<p> Statute of limitations. Record. Evidence. Taxes. </p> <p>The plaintiff sued the town of Norwich to recover back certain taxes paid by him, in the years 1848 to 1854- inclusive, on a school lot leased to and occupied by him, which was by statute exempt from taxation. The defendant pleaded the general issue and the statute of limitations. To the latter plea the plaintiff replied a new promise, and, to prove it, introduced in evidence a copy, from the town records, of a vote of the town, passed at an adjourned March meeting-in 1855, as follows: “On motion, voted that the matter of Lorenzo Slack, relative to his having been taxed on more land than he actually possessed, be referred to the selectmen.” The plaintiff then offered to prove by parol that at the same meeting a motion was made and carried in the affirmative by vote of the town, as follows: “that the matter of Lorenzo Slack against the town of Norwich, be referred to the selectmen to go to the records and find what ivas due Mr. Slack, and draw an order in his favor on the treasury for that amount;” Held, that the testimony offered was inadmissible for the reasons, first, that parol evidence of the vote offered to be proved could not be received until it was shown, either that the vote had not been recorded or that the record of it was lost or destroyed; and, second, that record evidence of a vote of a similar character, passed at the same meeting, had already been introduced, by the plaintiff, which, in the absence of proof to tlie contrary, would be presumed to he the same vote as that of which the parol proof was offered, and the record of the vote could not thus be varied or added to by parol.</p> <p>In an action against a town to recover back the taxes paid upon land which was by statute exempt from taxation, recovery can be had only for what have been paid as town taxes and have gone into the town treasury.</p> <p>When it is apparent that certain evidence, introduced under objection, had no effect upon the verdict, the propriety of admitting the evidence will not be ■ considered by the supreme court.</p> <p>A proposition by a debtor to his creditor to pay a specific sum in compromise of a disputed claim, fixing a definite time for its acceptance, and providing that, if not accepted within that time, it shall go for nothing, is not sufficient to prevent the operation of the statute of limitations upon the claim.</p> <p>So also of a proposition, not accepted bv the creditor, to pay a definite sum in settlement of a disputed claim.</p>

<p>Assumpsit upon a promissory note, dated December 15,1854, for one hundred dollars, payable to the intestate or order, February 1, 1858, with interest annually after January 15th, 1855. ■-Plea the general issue, and trial by the court, at the May Term, 1859, — Redeield, Ch. J., presiding.</p> <p>The note was read in evidence, and the plaintiff’s authority as administratrix was admitted.-</p> <p>In defence it was shown to the satisfaction of the court, that the defendant signed the note with one Levi Rix, and as his surety. This note was given with two others, one of fifty dollars and one of one hundred dollars,, and the three were payable respectively on the first days of February, 1856, 1857 and 1858. After two of the notes became due the intestate called upon Levi Rix for payment, and Levi told him he must trustee such persons as were owing him, naming them, which was done, and before the return day of the writs these persons came in to settle, and it was mutually agreed that the intestate should take such of their notes as he considered good, and it was agreed between him and Levi Rix that he should take such notes, at his own risk, in payment of the three notes in question. The parties had a reckoning as to the amount, and ascertained that t e notes were in this mode overpaid some twelve or fifteen ■ dollars. It remained in this way till near the death of the intestate, when he sent back to Levi Rix one of the notes taken in payment, which was not then due, but was secured by mortgage on real estate. Levi, supposing that the intestate did not wish to retain it, because of its not being then due, took it and has since retained it. He then had no knowledge that the intestate had parted with,-or intended to part with, either of the three notes.</p> <p>But it afterwards appeared that about three weeks before he died, which was on the 25th of March, 1858, the intestate sold and delivered the note in suit to one William W. Gibson, as payment upon notes he owed him, and about the first of May, 1858, the latter sold and delivered it to another person for a valuable consideration for whose benefit this suit is brought- by consent of the plaintiff.</p> <p>Levi Rix had notice from William Gibson of the transfer of the note to him a few days after the death of the intestate. When the commissioners on the estate of the intestate met, Levi Rix, supposing that to be the course to save his rights, presented his claim and it was allowed against the estate in full, including all the payments on these notes, amounting to two hundred and forty-five dollars and thirty-seven cents, and two of the three notes (the one in suit being excluded,) with a small balance of account, were allowed as an offset, being one hundred and eighty dollars, leaving a balance of sixty-five dollars and thirty-seven cents in favor of Levi Rix, which had been made as a payment upon the note in suit.</p> <p>Levi Rix paid into court the amount due upon the note in suit, except the balance of sixty-five dollars and thirty-seven cents, and all the costs up to and including the term at which the case was tried, which was accepted and taken out of court by the party for whose benefit this suit is prosecuted.</p> <p>The court decided that the plaintiff was entitled to recover the balance remaining unpaid upon this noté, but that the judgment should be certified to the probate court to enable that court to offset the same against the amount allowed to Levi Rix for what was in fact a payment of the very sum for which this judgment is recovered, if the probate court should deem the same equitable and just.</p> <p>To this decision both parties excepted.</p>

Action upon a promissory note for one hundred and seven dollars and fifty-two cents, dated Boston, Nov. 14,1849, payable to Loton, Gassett & Co., or order, six months after date, and indorsed to the plaintiff. Plea, the general issue, and trial by the court at the May Term, 1859, — Redeield, Ch. J., presiding.

Debt on bond. Declaration for that the defendants, Harvey H. Woodard, Daniel Tarbell, Jr., Edward B. Stanley, Horatio K. Blake and Solomon Downer, “respectively, on the 27th day of December, 1852, by their writing obligatory of that date, sealed with their seals, and which the said Richmond produces here in court, jointly and severally bound and acknowledged themselves to be indebted to the said Richmond, then, as now, sheriff of Windsor county aforesaid, in the sum of ten…