Volume 33 — Vermont Reports

<p>Biel in Chancery. The bill set forth in substance that the defendant, Jay Wilson, being indebted to the orator in a promissory note for fifty dollars, dated April 19th, 1858, on that day executed to the orator, for the purpose of securing such note, a mortgage deed of certain land, which Wilson had previously mortgaged to one Flinn, upon which last mentioned mortgage Flinn had in 1855 obtained a decree of foreclosure against Wilson and others, requiring the defendants in such decree to pay Flinn a certain sum in ten annual installments, becoming due respectively on the 20th of April in each successive year, or be foreclosed ; that Jay Wilson paid the two first installments due on such decree, and that the orator, on the 20th of April, 1858, paid, in order to protect and save his mortgage interest in the premises, the third installment, being two hundred and ninety-six dollars ; and that the other defendants in this bill claimed to have acquired interests in the premises in question subsequent to the execution of the Flinn mortgage. The bill prayed that the defendants be decreed to repay to the orator the money which he had been obliged to pay on the Flinn decree to protect his mortgage interest, and also to repay to him all sums which he might thereafter be compelled to pay upon the same decree for the same purpose ; and that the orator be subrogated to the rights of Flinn in his decree so far as he had paid, or should thereafter be compelled to pay, upon it, and that the defendants, in default of paying to the orator such sums by the respective times to be fixed by the chancellor, might be foreclosed of all equity of redemption in the premises.</p> <p>The bill was taken as confessed against all the defendants except Hial Hatch and Solomon Downer, whose answers stated that the orator made the payment on the Flinn decree set forth in his bill, under the following circumstances: That on the 19th of April, 1858, the defendant Jay Wilson applied to the orator to borrow money of him to make the payment on the Flinn decree, which fell due on the next day ; that it was then agreed between the orator and Jay Wilson that the former should make such payment for the latter, and that Wilson should repay to him the amount thereof with interest; that Wilson turned out to the orator certain notes against one Rogers, exceeding the amount of such payment, as collateral security for the sum the orator should so pay ; that, as extra interest and to induce the orator to advance the. money and make such payment on the decree, it was further agreed that Wilson should give to the orator the fifty dollar note described in the bill, and secure the same by a mortgage of the land in question; that the orator’s note and mortgage were given in pursuance of this agreement and for no other consideration, and that the claims of the defendants Hial Hatch and Solomon Downer to the mortgaged premises were valid and Iona fide claims based upon conveyances given by Wilson to them respectively, and that they were both prior to the orator’s mortgage.</p> <p>These answers were traversed and testimony taken, which, as appears by the opinion of the court, tended to support the answers.</p> <p>It further appeared at the time of the hearing before] the chancellor, that after the bill was brought, the orator had" paid to Flinn the fourth installment under his decree of foreclosure, which fell due on the 20th of April, 1859.</p> <p>The chancellor, Redfield, Ch. J., at the December Term, 1859, dismissed the bill, and the orator appealed.</p>

<p>Book Account. It appeared from the auditor’s report that on the 2.8th day of May, 1850, the defendant, who was the owner of a patent right in a bedstead, agreed with the plaintiff that the latter might sell the right in this State, have one-half of what he could get for it, and bear his own expenses, and that the defendant gave him a writing, as follows : “ This certifies that Silas Perry, of Woodstock, Vt., is duly authorized to act as agent for the sale of rights to my patent bedstead for the State of Vermont. South Woodstock, May 28, 1850 : ” that the plaintiff sold to one Lamson the right for Bridgewater and Plymouth for forty or forty-five dollars, and took his note ; that Lamson was not responsible ; that the plaintiff gave up the note to the defendant at his request, about the latter part of February, 1852 ; that the plaintiff made no more sales in this State, though he made considerable effort; that in February, 1852, the defendant made an arrangement at Montpelier, with one Abbott, of that place, to manufacture bedsteads under his patent, on commission, to be sold throughout this State, of which he soon after informed the plaintiff, and the plaintiff and defendant thereupon agreed that the former should give up his agency and the defendant should pay him his expenses incurred therein ; that the plaintiff had but one item of charge for expenses, which bore date February 20, 1852, and was for seventy-five dollars; that his expenses amounted to as much as the charge; that the charge with interest amounted to eighty-four dollars, and after deducting an account presented by the defendant against the plaintiff, which was allowed, a balance of seventy-seven dollars and seventy-five cents was found due the plaintiff, if he was entitled to recover on the foregoing facts.</p> <p>The county court, at the May Term, 1859, Redbibld, Ch. J., presiding, rendered judgment upon the report for the plaintiff, for the balance above stated, to which the defendant excepted.</p>

<p> Execution. </p> <p>If an execution be levied upon an undivided portion of tbe debtor’s land, owned wholly by Mm, without any statement in the return of the existence of a mortgage, or other reason for not setting off the estate in severalty, such levy will be invalid, notwithstanding theveawas in fact an outstanding mortgage upon the premises.</p>

Trover for two [promissory notes. Plea, the general issue, and trial by jury at-the December Term, 1859, — Redeield, Ch. J., presiding.

<p>Assumpsit to recover tlie price of real estate sold by the plaintiff to the defendant. Plea the general issue, and trial by jury at the June Term, 1859, — Barrett, J., presiding.</p> <p>The evidence on the part of the plaintiff tended to prove that he resided in the State of Connecticut; that he owned a certain house and lot in Farwell Village, in the town of Randolph, in this State, and a small wood lot situated about half a mile from the house ; that one York, who resided near the premises, was the plaintiff’s agent in reference to this property, and as such agent, about the 6th of November, 1858, made a verbal contract with the defendant to sell him the house and lot and wood lot for the sum of four hundred and sixty-five dollars, fifteen dol» lars to be paid down, and the balance wheu the deeds should be obtained, the deeds to be procured as soon as convenient, and to be good warranty deeds executed by the plaintiff and his wife ; that the defendant paid the fifteen dollars down at the time of the contract, and within three or four days moved into the house ; that York wrote to the plaintiff at once for the deeds, and about the 19th of November received a deed of the house and lot, executed by the plaintiff and his wife, and a deed of the wood lot executed by the plaintiff but not by his wife ; that he offered the deeds to the defendant, who declined to receive them, for the reason that one of them was not executed by the wife of the plaintiff ; that thereupon York said he would send for another deed as quick as possible that would be satisfactory, and proposed to the defendant that to settle and close up the trade he would give him his bond, with a good surety, to procure the defendant a good deed, if that would satisfy him; that the defendant did not incline to settle it in that way, but said that his own (York’s) bond was good enough without a surety; that thereupon the parties separated and nothing more was then said or done between them ; that York immediately sent to the plaintiff for another deed of the wood lot, and on the 6th of December received it, executed by the plaintiff and his wife, and on the same day offered it, together with the deed of the house and lot above mentioned, to the defendant who declined receiving them, assigning as a reason that so long a time had elasped that he had made other arrangements and bought another place; that the defendant had not accepted the deeds and had not paid the plaintiff for the premises ; that the defendant continued to occupy the house until sometime in March, 1859, when he vacated it and on the 17th. of March gave York verbal notice thereof, and that the plaintiff has had nothing to do with the premises since the defendant took possession of the house as above stated.</p> <p>The two deeds, last tendered, were introduced in evidence. <</p> <p>■The defendant insisted to the court, among other things, that he was released from his obligation to pay for the land and house on account of the failure of the plaintiff’s agent to procure such deed or deeds as the contract required.</p> <p>The court declined to rule as above claimed, ánd intimated to the counsel that they should charge the jury substantially as follows : That if, when ’the first set of deeds were offered to the defendant and declined by him because one of them was not executed by the wife of the plaintiff, it was understood between York and the defendant that York was to send for and procure a deed of the wood lot, executed by the plaintiff and his wife, in performance of the contract of the sale and purchase of the property in question; or if the defendant did not then make an end of the contract by declining thereafter to accept deeds duly executed by the plaintiff and his wife, but by what he said and did gave York reasonably to understand that he would accept such deeds- when procured and offered in performance of the contract, and in pursuance thereof York did procure such deeds as soon as he conveniently could, and tendered them to the defendant, as the evidence tended to show, that would constitute a tender of performance on the part of the plaintiff such as would render the defendant liable to perform on his part:</p> <p>That it was the duty of the defendant in some way reasonably to give York to understand, when the first set of deeds were tendered to and declined by him, and York was proposing to send for another sufficient and satisfactory deed of the wood lot for the defendant in performance of the contract, that he, the defendant, would not thereafter receive them; and unless he did so, if York did send for and procure such deed of the wood lot, executed by the plaintiff and his wife, as soon as he conveniently could, and then tendered the two deeds thus executed, as the evidence tended to show, the defendant would he liable in this action : That ii from what passed between York and the defendant in relation to the bond, it was understood by the parties that the. defendant declined thereafter to receive the. deeds when both should be procured, duly executed, unless such bond was given ; then, as such bond was not given, the subsequent procuring and tender of the deeds would not affect the defendant, and the plaintiff could not recover.</p> <p>Upon this intimation the counsel for the defendant submitted to a verdict for the plaintiff, with leave to except to the foregoing as the charge of the court.</p>

Assumpsit upon a. promissory note dated Feb. 1, 1855, for four thousand dollars, signed hy the defendant and payable to Chester Baxter, or order, and by him endorsed to the plaintiff. Plea, the general issue, and trial by jury at the June Term, 1859, —Alius, J. presiding. On trial, the plaintiff gave in evidence the note declared upon.

Book Account. The auditors reported that the plaintiff’s claim amounted to one thousand four hundred and seventy-two dollars, and was for constructing a road and bridge for the defendants under a written contract between the parties which specified in detail the length, width and mode of construction, both of the road and bridge, and also required that the whole work should be done in a thorough, workmanlike manner, and be completed to the satisfaction and acceptance of the…

Trustee Process. The cause was tried by the court upon the disclosure of the trustee and the claimant’s declaration, at the June term, 1859, — Barrett, J., presiding.

Book Account, It appeared from the auditor’s report that in August, 1857, one Martin was about to build two stone mill dams in Plainfield, and the defendant had taken the job of building one of them for him, the other to be built by Martin himself; that both Martin and the defendant were desirous of procuring a derrick to be used in the constructiop of the dams, and in the latter part of August, the defendant made an agreement with the plaintiff at Bradford for the use of a…

Trespass for forcibly ejecting tbe plaintiff from a railroad car. Tbe defendant pleaded tbe general issue, and four special pleas in justification. To tbe four latter pleas tbe plaintiff demurred specially, on the ground that tbe defendant did not in either of them admit any trespass or assault which required justification, and that tbe pleas therefore amounted only to tbe general issue.

Trespass for taking a horse. Plea the general issue, with notice of special matter in justification, to the effect that the ■defendant took the horse as collector of Braintree by virtue of a warránt against the plaintiff for the collection of certain taxes, assessed against him upon the grand list of Braintree for the year 1855. The cause was tried by jury at the June Term, 1857,— Underwood, J., presiding.

Ejectment. The facts sufficiently appear in the opinion, of the court. The cause was tried by jury, upon the plea of the general issue, at the June Term, 1859, — Barrett, J., presiding. The county court directed a verdict for the defendants, to which the plaintiff excepted.

This was an action brought before a justice of the peace on the statute of 1853, relating to the building and repairing of fences, to recover the defendants’ share of the expenses of building a division fence on the line between the lands, of the plaintiff and the defendants in Tunbridge.

Indictment for larceny. The respondent was tried at the January Term, 1860, — Kellogg, J., presiding, — and the jury rendered a verdict of guilty as to the second count of the indictment only; the evidence upon which this conviction was had tending to show that the offence charged in that count, was committed about the first day of November, 1857.

Assumpsit on a promissory note for two hundred and fifty dollars, made by the defendant, dated March 25, 1857, and payable to John Longee, or bearer, in one year from the 1st day of April next after its date, with interest annually. Plea the general issue and trial by jury, at the June Term, 1859, — Barrett, J. presiding. The plaintiff read the note declared upon in evidence, and rested his case.

<p> Promissory Note. Partial failure of consideration. Supreme Court. Evidence. </p> <p>Partial failure of the consideration of a promissory note, the amount of such failure being unliquidated and subject to the estimation of the jury, cannot be shown for the purpose of reducing the amount of the recovery in an action upon the note.</p> <p>'The Supreme Court will not examine evidence offered in the court below and rejected, with a view to determine its admissibility for any purpose other than that insisted upon in that court.</p>

Trustee Process. This case came before the County Court upon the report of the commissioner appointed to take the disclosure of the trustee.

Assumpsit. The declaration contained a general count for work and labor, and also a special count upon the contract mentioned below, but claimed no damages beyond payment for the work performed under the contract. The defendant pleaded the general issue and the case was tried by jury at the June term, 1859, Barrett, J., presiding.

order of the Probate Court setting out a homestead to the defendants, without making the same subject to any debts whatever of the intestate. The cause was tried by the court, at the June Term, 1859, Barrett, J., presiding. The plaintiff gave in evidence, subject to all legal objection thereto, a copy of the report of the commissioners upon claims against the intestate’s estate, which did not describe the time when any of the debts therein allowed were incurred.

Assumpsit for the use and occupation of a store. The case was referred, and it appeared from the referee’s report that one Foster built the store in question in the summer and fall of 1849, and that by the advice of the then President of the Vermont Central railroad company, he located it on land owiied by that company, near their depot in Waterbury; that about the 10th of November, 1849, he was indebted to the railroad company in a large sum for freight, and to settle this…

Assumpsit. The declaration set forth a written contract whereby the defendants promised to deliver to the plaintiffs at New Haven, Connecticut, five hundred tons of copper ore, mined from the defendants’ mines in the state of Vermont, to be delivered in good merchantable order, by the 1st day of September, 1855 ; and for which the plaintiffs agreed to pay the defendants certain specified prices per ton, according to the quality of the ore, to be ascertained by assay thereof,…

Case for the disturbance of the plaintiff as administrator of Lebbeus Edgerton, in the use and enjoyment of himself and family of a pew in the Union Meeting House in Randolph, belonging to the estate of his intestate.

Assumpsit on a promissory note, endorsed by the defendant. Plea, the general issue, and trial by the court, at the September Term, 1859, — Barrett, J., presiding.

Annis, a pauper, from the town of Northfield to the town of Vershire. Plea, that the pauper was unduly removed, because his last legal settlement was not in Vershire. The cause was tried by the court at the September Term, 1859, — Barrett, J., presiding.

Assumpsit upon two promissory notes, signed by the defendant and one James Crossett, and payable to the plaintiff or bearer. Plea the- general issue, and trial by the court at the September Term, 1859, — Barrett, J., presiding. The plaintiff introduced in evidence,, and proved the- execution of, the notes declared on.

Book Account. The faets ih the case' are sufficiently stated in the opinion of the court. The county court, at the September Term, 1859, — Barrett,* J., presiding, — rendered judgment for the plaintiff, to which the' defendant excepted.

TRoyer for an undivided half of a piano forte. Plea the general issue and trial by jury at the September Term, 1859,— Barrett, J., presiding.

Case for injury to the plaintiff, Mrs. Crane, received through Want of repairs upon a bridge in the town of Northfield. Plea, the general issue, and trial by jury at the September Term, 1859,— Barrett, J., presiding. It appeared that the bridge in question, which was over a small water-course, had been built some six years; that it was Well planked at the time it was built, and was covered with dirt» to the depth 'of some five or six inches, and was kept so covered.

Trustee Process. Trial by the court at the March Term, 1860, — Barrett, J., presiding. The claimant, Carpenter, was cited in by the plaintiff and appeared as such. Held: used and appropriated the same to his own purposes. The debts to Blodgett and Bailey were paid by the principal debtor out of the avails of the property that had been assigned by him as above stated.

Assumpsit. Declaration, for that one Elias Bascom, father ■of the defendant, was on the 1st day of May, 1854, indebted to the plaintiffs in the sum of fourteen dollars and fifty cents ; that on the 10th day of June, 1854, the said Alias died, leaving property of large value, to wit, five hundred dollars ; that the ■defendant was sole heir-at-law of said Elias, and entitled to all his estate, except what was necessary to pay his debts ; and that the defendant in consideration…

Case for slander. The declaration (by its new count) charged the defendant with speaking, in Canada, in a conversation concerning the plaintiff, and Emily E. Langdon, his daughter, who was then sick, these false and defamatory words, in the hearing of other persons, to and concerning the plaintiff: “ Ton,” (meaning the plaintiff,) “ have drugged the child,” (meaning the said Emily E. Langdon, daughter of the plaintiff;) thereby meaning that the plaintiff was guilty of giving…

Trespass for false imprisonment. The defendants jointly pleaded two special pleas in justification-The first plea set forth that the plaintiff had been duly elected and qualified constable and collector of Chelsea for the year 1854; that a tax was legally voted on the list of that year, and with a legal warrant was put into his hands for collection ; that he proceeded to collect the same, and was delinquent in paying over to the proper authorities; and further set out the…

Case. The material facts in the case, the questions arising thereon, and the judgment of the county court, are sufficiently stated in the opinion of the court. Exceptions by the plaintiff.

Trover for a quantity of goods. Plea not guilty, and trial by the court at the March Term, 1858, — Barrett, J., presiding.

Audita Querela to set aside an execution issued upon a judgment rendered by a justice oi the peace in favor of the defendant against the plaintiff, for the reason that the justice did not at the time stated in the execution, render any such judgment as was therein set forth. Plea the general issue, and trial by the court at the December Term, 1859, — Aldis, J., presiding.

Plea, that the pauper was unduly removed, and trial by jury at the June Term, 1860, — Poland, J., presiding. It was conceded by the defendants that the pauper’s settlement was in Irasburgh, unless he had lost it by gaining one in Barton, by a residence of seven consecutive years-in-Barton between 1850 and 1859.

Trustee Process. The facts sufficiently appear in the opinion of the court. The county court, at the December Term, 1859, — Poland, J., presiding, — adjudged the trustee chargeable, to which the trustee and claimant excepted.

The only question in this case related to the taxation of costs. The plaintiff claimed to tax for a subpoena and the service of the same on one Bennett. The defendant objected on the ground that the subpoena was directed simply to any indifferent person, and not to the person serving it by name. It appeared that the plaintiff took out the subpoena and had it served on Bennett in good faith, believing his testimony to be material.

Book Account. The auditor reported that the account presented by the plaintiff was for eight tubs of butter claimed by him to have been sold to the defendants, in quantities of two tubs at a time, at different periods during the spring and summer of 1858, and in regard to such claim the auditor found the following facts : From 1856 to 1859 the defendants, who resided in Washington county, had a store at Ctaftsbury, which was carried on by one Con C. Richardson, a son of the…

Book Account. The facts are sufficiently stated in tbe opinion of the court. The county court, at the December Term, 1859, — Poland, J., presiding, — rendered judgment for the plaintiff, to which the defendant excepted.

Assumpsit on three promissory notes, made by the defendants and payable to Harry Baxter or order. The defendants E. B. and James Simonds suffered judgment by- default. The defendant Conant pleaded the general issue, with a special notice, and the case was tried by jury at the June Term, 1857, — Poland, J., presiding.

Case for slander. The first count of the declaration set forth that the defendant on the 3d day of March, 1857, at Glover, in the county of Orleans, maliciously spoke the following false and defamatory words of and concerning the plaintiff and “ his testimony given as a witness at' Glover, before Amos P. Bean, Hezelriah S. Bickford and Samuel S. Blanchard, arbitrators who had before that time arbitrated and awarded between the plaintiff, David Cass and one Francis R.…

Trespass qu. cl. fr. The facts in the case are sufficiently stated in the opinion of the court. The county court, at the September Term, 1859, — Roland, J., presiding, — held that the action could not be maintained, and rendered judgment for the defendants, to which the plaintiff excepted.

Bill in Chancery. The facts are sufficiently stated in the opinion of the court. The Chancellor, — Poland, J., — at the March Terri, 1859, dismissed the bill, pro forma, from which decree the orator appealed.

Audita querela to set aside the judgment of a justice of the peace in favor of the defendant against the plaintiff.

<p> Pauper. Evidence. Statute. </p> <p>The first clause of Sec. 29, chap. XVIII., p. 134, Comp, Stat., in relation to bringing poor persons from one town to another with intent to charge the latter with their support, is penal, ancl in order to warrant a verdict for the plaintiff for the forfeiture therein described, the guilt of the defendant must be established beyond a reasonable doubt.</p> <p>But the second clause of the same section, which provides that the person so removing the pauper shall be liable to pay all damages for his support, accruing to the town into which the removal is made, is merely remedial, and no such strictness of proof is requisite for a recovery by the plaintiff thereunder.</p> <p>Therefore, where, in a declaration upon such section, one count declared for the forfeiture, and another for the damages merely, and a third for both the damages and the forfeiture; Held, that it was error to instruct the jury that in order to find for the plaintiff they must be satisfied of the defendant's guilt beyond a reasonable doubt; but that such instruction should have been confined to the first and third counts.</p> <p>A pauper being chargeable upon the town of B. as a transient person therein, the overseer of the poor of that town hired the defendant to support him in the town of P. for a specified time, after the expiration of which the pauper remained in P. for some months, with the intention of residing there, and supported himself there. Held, that the subsequent removal of the pauper by the defendant to B. for the purpose of charging that town with his sup. port, was actionable under sec. 29, Chap. XVIII. p. 134, Comp. Stat.</p>

Trover for five promissory notes, one for one hundred and fifty dollars, signed by Archibald Caldwell; one for fifty dollars signed by James Caldwell; one for forty-five dollars, signed by Robert Gray ; one for fifty dollars against John Doe, and one for fifty dollars signed by Orrin Heath. The notes signed by Archibald Caldwell, and James Caldwell were payable to Jane Renfrew, or bearer, and the other notes were payable to Jane Renfrew.

Replevin for a mare. The defendant avowed taking the mare as collector of school district No. .4, in Ryegate, by virtue of a warrant directing him to collect a tax against the plaintiff laid by that district. The cause was tried by the court at the December Term, 1859, — Poland, J., presiding. The facts in the case and the questions raised therein are stated in the opinion of the court.

<p> Audita Querela. Practice. Appeal. Penal Statutes. </p> <p>The rule that the denial of an appeal by a justice of the peace, from a judgment rendered in his court in a case which by la-wis appealable, is sufficient ground for setting aside the judgment on audita querela brought for that purpose, was not changed by the statute introducing the new remedy of a petition to the county court in such case.</p> <p>The provision of the statute (sec. 10, ch. 92, p. 518, Comp. Stat.) by which a pound keeper may recover of the owner of any beast impounded the sum of seventeen cents a day for the time the owner suffer it to remain in pound beyond forty-eight hours after notice, is penal in its character; and an action brought by the pound keeper before a justice of the peace to recover this sum or penalty is therefore appealable to the county court under the statute (sec. 7b, ch. 29, p. 239, Comp, Stat.)</p>

<p>Case. The declaration alleged that the plaintiff, on the 1st day of July, 1855, delivered to the defendants, who were manufacturers of woolen goods, twelve hundred pounds of wool to be by them properly sorted and manufactured into cloth, for which the plaintiff was to pay them the sum of thirty cents a yard for every yard of cloth manufactured from his wool; that the defendants accepted and received the wool for the purpose of properly sorting and manufacturing it into cloth for the plaintiff, and then to deliver all the cloth which the wool would properly make to the plaintiff by the 15th day of July, 1855, for said sum of thirty cents a yard. Yet that the defendants, on the 15th day of July, 1855, wrongfully converted and-disposed of a large amount of the plaintiff’s wool, to wit, six hundred pounds, to their own use, and mixed with the residue thereof a large quantity of cotton, and manufactured the, wool and cotton, so mixed, into cloth, of which one-half was cotton ; and on the 15th day of October, delivered the cloth to the plaintiff, as and for cloth made wholly from the plaintiff’s wool, at the rate of one yard of cloth for each pound and a quarter of wool so delivered and received to be manufactured into cloth; whereby the plaintiff was not only deprived of the wool which the defendants converted and disposed of to their own use, but also the residue of the wool so manufactured into cloth was greatly lessened in value and rendered of little use and value to the plaintiff by reason of the great proportion of cotton in the cloth.</p> <p>The defendants pleaded the general issue, and the case was tried by jury at the June Term, 1860, — Aldis, J., presiding.</p> <p>The testimony of both the plaintiff and the defendants on the trial tended to show that the defendants were not expected to keep the plaintiff’s wool separate, and manufacture it by itself alone, but that they were to mingle it with the wools of other customers, of like grade and quality, and give the plaintiff his fair share of cloth and of his fair and average quality from all the wools so mingled in the process of manufacture.</p> <p>Upon this showing the defendants claimed that upon the averments in the plaintiff’s declaration the plaintiff could not recover ; that in order to recover, the plaintiff must show that the contract between the parties was that the identical cloth made from thg plaintiff’s wool alone, and not from the wool of the plaintiff mixed with the’ wool of others, was to he returned to the plaintiff. It appeared that it was the custom in woolen manufactories to mingle the wools of customers together and sort it into different grades, and give to each customer his fair share in amount and quality of cloth so made.</p> <p>The court ruled that the plaintiff could recover even though the jury should find that the contract was that the plaintiff was to have his wool mingled with that of others in the usual way and have cloth returned to him though made of his wool mingled with others, and not from his wool alone. To this decision the defendants excepted.</p>

Scire nacías against the defendants as bail for Phineas Stevens, a resident of the State of Illinois, arrested upon a process against him in favor of the plaintiff'. The defendants pleaded nul iiel record with notice of special matter in defence, to the effect that the plaintiff did not file a proper affidavit as the basis of the issue of a-capias against Stevens. The cause was tried by the court at the June Term, 1860, — Poland, J., presiding.

Assumpsit on the general counts. Plea the general issue, and trial by jury at the December Term, 1858, — Poland, J., presiding. This was an action to recover the same sum of one hundred dollars for which a former suit was brought by the same plaintiff against the same defendant.

Trustee Process. The Commissioner reported that on the 9th of October, 1857, the trustee Samuel Harrington purchased of the defendant Lewis Harrington, a store and the land on which it stood, in Walden, together with the stock of goods therein, for the price of eighteen hundred dollars ; that in payment of this price the trustee released the defendant from an indebtedness to him of five hundred dollars, and also executed and delivered to the defendant four notes of that…

Ejectment for a lot of land in Newark. Plea, the general issue, and trial by jury at the December Term, 1859, — Poland, J., presiding.

<p> Promissory Note. Consideration. Fraud. </p> <p>To entitle the maker of a promissory note in a suit againsS him by the payee to an abatement from its amount in assessing damages, on the ground of misrepresentation by the payee in relation to the property for which the note was given, and a consequent want of consideration as to part of the note, three things must concur, viz: fraud upon him in procuring the note for the sum named in it, an offer by him to rescind the contract under which the note was given, and an ability by computation to fix the amount to be deducted.</p> <p>If the maker of the note insists upon holding the property for the purchase of which the note was given, this operates as an affirmance of the contract of purchase in all its particulars and disentitles him to question either the validity or amount of the note.</p>

Bill in chancery. From the bill, answers and testimony it appeared that in 1836, Jonathan F. Scribner was agent under a del credere commission to sell glass for Cook, Lane & Corning of Troy, N. Y; that as such agent, in that year he sold to Benjamin Rathbone. of Buffalo, N. Y., a quantity of glass on credit; that in August, 1836, Rathbone, being still indebted for this purchase, became insolvent, and that it being ascertained that he owned certain real estate in Burlington,…

It appeared that the selectmen of Newfane, on the 14th of August, 1858, at the request of the defendant’s prudential committee, under the law of 1857, entitled “ an act in relation to the location of school-houses,” (see acts of 1857, No. 58, p. 71,) located the defendant’s school-house upon certain land belonging to the plaintiff, and caused the land so designated for such location, containing half an acre, to be surveyed and described by metes and bounds ; that the…

Case to recover damages for injuries sustained by reason of the insufficiency of a highway in the town of Somerset. At the April Term, 1857, the plaintiff moved that the cause be referred to commissioners in conformity with the law of 1856, entitled “ an act providing for the reference of actions in the county court.” (Acts of 1856, No. 6, p. 10)*.

Case for obstructing the light from certain windows in the plaintiff’s premises on State street in Montpelier. Plea, not guilty, and trial by jury, at the March Term, 1860, — Barrett, J., presiding.

Bill in Chancery. The following opinioá of Poland, Chancellor, before whom the cause was originally tried at the June Term, 1859, of the Orleans county court of chancery, states with sufficient fullness the facts in the ease. “ This is a bill brought by the orator to foreclose a mortgage lien acquired by perfecting a mechanic’s lien under the statute, not only against the defendant Gage, for whom the orator performed the labor as a mechanic, but also against the defendants,…

Book Account. The facts in the case sufficiently appear in the opinion of the court. The county court, at the June Term, 1860, in Orleans county, rendered judgment for the defendant, to which the plaintiff excepted.

Ejectment. Plea, the general issue, and trial by jury at the December Term, 1859, — Kellogg, J., presiding.

Bill ok foreclosure. The facts in the case are stated with sufficient particularity in the opinion of the court.

Trespass for two cows and five yearlings. Plea, the general issue, and trial by the court at the September Term, 1859, in Chittenden county, — Bennett, J., presiding.

Assumpsit. The declaration contained special counts on a note and two drafts for ten thousand dollars each, dated at Detroit, Michigan, respectively July 6th, 1853, August 26th, 1853, and September 18th, 1858, signed by Smith, Dwight & Co., payable to the order of Howard and Toms, endorsed by them, by the defendant and other endorsers, and payable with exchange on New York, the note on demand and the drafts at sight, with interest at five per cent, per annum.

Scire facias against the defendants upon their recognizance as sureties for the faithful discharge of the duties of sheriff of Orleans county, by one Strong. The cause of action set forth in the declaration was the recovery by the plaintiff of a judgment against Strong for official neglect as sheriff during the year for which the defendants had become recognized as his sureties, which judgment was still unsatisfied.

Assumpsit upon a guaranty. Plea, the general issue, and trial by the court, at the December Term, 1859, in.Lamoille county, — Aldis, J. presiding. The facts in the case are sufficiently stated in the opinion of the court. The county court decided that there was sufficient consideration for the guaranty, and rendered judgment for the plaintiffs for the amount of the debt guarantied with interest.

Petition for a maudamus, or some other proper process, to the county court, to bring up the record of their proceedings in reference to a certain petition by the plaintiff for the alteration of a highway in the town of Chester.

Case, for the alleged neglect or default of the second constable of the defendant town for taking an insufficient replevin bond. Plea, the general issue, and trial by jury, at the June Term, 1859, in Addison county, — Bennett, J., presiding.

Trustee Process. It appeared that previous to January, 1857, the defendant Brown was indebted to Somerby & Terrell, Somerby, Camp & Co., and to.J. C. Barrett & Co., and that these claims had all been placed in the hands of the claimant, Gleed, who was an attorney, for collection. At the same time Brown was also indebted to the claimant.

Indictment. The offence was charged in the indictment that the respondent “ on the 2d day of December, 1857, with force and arms at Hydepark, aforesaid, willfully and maliciously did cut, injure and destroy certain leaden pipe, used as an aqueduct for the conveyance of water, being the property of one Harvey Jewett then and there being found, contrary to the form, force and effect of the statute, etc., etc.” The respondent demurred to the indictment, but the county court, at…

Case for the neglect of the defendant, as sheriff of Orange county, for not collecting an execution in the plaintiff’s favor against one Low, which the plaintiff placed in his hands for collection. It appeared that the execution was levied by the defendant upon a piano forte, as the property of Low, but that previous to the time appointed for its sale on execution, the piano was replevied and taken out of his hands, upon a writ against him in favor of one Prichard.

Assumpsit on the Common Counts. The defendants pleaded the general issue and a plea in offset. The plaintiff also pleaded in offset to the offset of the defendants. The plaintiff and defendants both filed specifications. The cause was tried by jury, at the December Term, 1859, in Lamoille county — Aldis, J., presiding.

Bill in Chancery. The material factó of the case are stated in the opinion of the court. Poland, chancellor, dismissed the bill, from which decree the orator appealed.

<p> Evidence. Contract. </p> <p>In assumpsit to recover for services under a special contract, and for damages to the plaintiff by reason of being discharged from service by the defendant without cause, the defendant introduced testimony tending to show that he had good cause for discharging the plaintiff, and that by the original contract of service, the plaintiff agreed to act as overseer for the defendant in his absence, and keep his men industriously employed; Held that it was competent for the defendant to also prove that the plaintiff had violated his agreement in the latter respect, and had suffered the defendant’s men to be idle.</p>

Debt, brought to recover of the defendant, a Justice of the Peace, the forfeiture prescribed by sec. 16, chap. 66, Comp. Stat. p. 394, for marrying the plaintiff’s daughter, while a minor, to one Best, and without her parents’ consent.

<p> Fences. Assumpsit. </p> <p>The defendant agreed with the plaintiffs that if the latter would build one-half of the division fence between them, he would build the other half, or pay the plaintiff for one half of the fence, which they should build. The plaintiffs built one-half of the fence, but the defendant neglected to build any portion of the other half; Held, that the plaintiffs could recover half the expense of the fence built by them, under the general counts in assumpsit for work, labor and materials furnished.</p>

The facts in the case are stated sufficiently in the opinion of the court. The county court at the May Term, 1859, in Lamoille county,— Poland, J., presiding,— decided that the paupers were duly removed, to which the defendant excepted.

Debt. The pleadings upon which the case was decided, and the decision of the county court are sufficiently set forth in the opinion of the court.

Trespass for taking the plaintiff’s wagon. The defendant pleaded the general issue, with notice of special matter of defence to the effect that he attached and took the wagon, as deputy sheriff, by virtue of a writ in favor of Hiram Earl against one H. C. Mclntire. Trial by the court, at the May Term, 1860, in Lamoille county, — Poland, J., presiding.

Assumpsit upon a promissory note dated April 18, 1854, for two hundred dollars, signed by the defendants, and payable to the plaintiffs or bearer three months after date. Plea the general issue and trial by the court at the September Term, 1857, in Washington county, — Peck, J., presiding. The execution of the note by the defendants, and the fact that Gleason and Whipple were mere sureties thereon, were admitted.

The bill was brought oü the 4th of April, 1857, for the purpose of setting aside,a certain lease of the Western Vermont Railroad, made on the 16th of January, 185.7, to the Troy & Boston Railroad Company by the defendants, Knapp and Briggs, who were then in possession of' the former road, as trustees of the first mortgage bondholders, under a decree of foreclosure, which expired without redemption on the 1st of January, 1857.

<p>(In Chancert.)</p> <p>Chancery. Fraud. Notice. Promissory Note. Vendor and Purchaser. Evidence.</p> <p>After a court of chancery has referred certain issues to a court of law for trial by jury, and the jury have decided some of them and been unable to agree upon others, the cause may then be decided by the court of chancery upon the whole record, including the report of the trial at law, provided such court finds itself able to dispose of the cause satisfactorily upon all the evidence before it.</p> <p>The orator’s testimony on the trial at law may be considered by the court of chancery in determining the case, notwithstanding he did not testify before the case was referred to the jury.</p> <p>Tf the owner of a lease employs another to greatly exaggerate its value to the landlord, and to agree to purchase the whole property of him at more than its value, if he would buy the lease from the owner, for the purpose of defrauding the landlord into a purchase of the lease, such exaggerated statements of its value cannot be excused as mere “ puffing,” such as a vendor is allowed to make use of. Neither does the readiness at which the landlord caught at the bait, though he knew the price, at which the other party proposed to purchase, was too high, excuse the fraud on the part of the confederates</p> <p>A. owned property subject tó a lease to S. S. secretly confederated with and employed R. to represent to A.„that the property was of great value, and that he would purchase it at much more than its real worth, if A. would buy up the lease of S. Influenced by this fraud, A. purchased of S. the lease at an exorbitant price, immediately after which R, absconded without purchasing the property. A. paid S. for the lease in two notes, one of which S. sold to P., who bought it in good faith and without any knowledge of any defence to it, and paid therefor partly in money and partly in his own note to S., which he subsequently paid. Before P. paid this note, however, A. notified him that his note held by P. was obtained from him by fraud, and that he should not pay it.</p> <p>Held, that this information was not sufficient to throw upon P. the risk of paying to S. the balance due upon the purchase of the note, because, under the circumstances of the case, P. could not have obtained satisfactory information whether S. had defrauded A. or not, by an investigation conducted in the usual course of business; it having required, in order to settle that question, a long litigation, in the course of which a jury failed to agree upon it.</p> <p>Held, therefore that A. was liable to pay to P. the note transferred to him by S.; but not to pay to S. the other note retained by him, the prosecution of which was accordingly enjoined.</p> <p>When the bona fide purchaser of a negotiable note gives his own note for thd price of the purchase, he is to be regarded as a holder for value, in the commercial sense.</p>

Assumpsit against the defendant as endorser of a promissory-note signed by Bradley & Canfield. The defendant pleaded payment and also an extension of the time of payment by a binding-agreement between the plaintiff and the makers of the note, without the defendant’s knowledge. The cause was tried by the jury at the March Term, 1860, ■ — Kellogg, J., presiding.

The facts sufficiently appear in the opinion of the court. The defendant moved in the county court to dismiss the appeal, for reasons apparent on the record. The county court, at the September Term, 1860, Kellogg, J., presiding, pro forma dismissed the appeal, to which the plaintiff excepted.

Bill in Chancery. The facts in the case are sufficiently stated in the opinion of the court. The chancellor rendered a •decree for the oratrix according to the prayer of the hill, from which the defendants, the legatees of Ezra Meech, appealed.

Petition to vacate tbe levy of an execution in favor of tbe defendant upon tbe plaintiff’s real estate. Tbe facts in tbe case appear in tbe opinion of tbe court.

Case. The first count in the declaration was as follows : “In a plea of the case for that whereas heretofore, to wit i on the 4th day of November, A. D. 1834, and before the committing of the grievances by the defendants, hereinafter complained of, the General Assembly of the State of Vermont, by “an act entitled an act to incorporate the President, Directors and Company of the Farmers’ and Mechanics’ Bank,” passed November 4, 1834, constituted the subscribers to the capital…

Trustee Process. The trustees disclosed that the trustee, Wait, as principal, and the other trustees as his sureties, executed and delivered to the claimant a promissory note in payment for a span of horses, sold by the claimant to Wait; that the defendant, previous to the service of the trustee process upon the trustees, notified Wait that the claimant had transferred the note to him; and that no notice of any other transfer of the note was given to any of the trustees…

Trespass qu. cl. er., with a count in case, for the destruction by the defendants of a pew in the Roman Catholic Church in Highgate. Held: should be in writing, nor that there should have been the consent of the bishop of Boston to the division and severance of the pews among the subscribers, provided there was such an original verbal agreement as above stated, and provided that there was an actual and practical division of the pews among the subscribers, in pursuance…

Petition to the county court. The subject matter of the petition and the facts of the case are stated in the opinion of the court. To the judgment of the county court, dismissing the petition, the petitioner excepted.

Assumpsit upon a promissory note. Plea the general issue with notice of special matter in defence, and trial by jury at the September Term, 1860, — Aldís, J., presiding. The material facts in the case, as well as that portion of the charge of the county court to which the plaintiff excepted, are sufficiently stated in the opinion of the court.

Assumpsit upon two promissory notes for two thousand five hundred dollars each, signed by the defendants, dated Dec. 7th, 1853, and payable to the plaintiffs in three months from date. Plea, the general issue, and trial by jury at the December Term, 1859, — Pierpoint, J., presiding. . The plaintiffs introduced the notes declared on in evidence, and rested their case.

The plaintiff filed in the county court a declaration .containing the general and money counts only. Plea, the general issue, and trial by jury at the December Term, 1861, — Pierpoint, J., presiding.

The parties agreed upon the following statement of facts : Martha Doane was the widow of Reuben Doane, who died in May, 1856, leaving real estate of which he was seized in fee at the time of his death. Administration was duly granted upon his estate. On the 2d of June, 1857, dower was duly decreed and set out according to law in such real estate to the widow. The report of commissioners setting out such dower was returned and accepted September 8th, 1857.

<p> Highways. </p> <p>The neglect of the authority establishing a road to prescribe its width, excuses the town from liability for not opening and working the same.</p>

Book Account. The question in this case was whether the plaintiff, who was a druggist, was entitled to recover of the defendant for a quantity of an article called “ Doctor Ham’s Aromatic Invigorating Spirit,” which the plaintiff had sold and delivered to the defendant.