Volume 34 — Vermont Reports

25 p. 65) and that the Vermont Central Railroad Company was incorporated by the same legislature by an act approved October 31,1848.

Trespass for assault and battery and false imprisonment. The facts sufficiently appear in the opinion of the court. The court at the January Term, 1861, Pierpoint, J., presiding, directed a verdict for the defendant, to which the plaintiff excepted.

<p> Evidence. Auditor. Boole Account. </p> <p>The entries of a deceased Cierk made upon, the books of the master in the usual course of business, are evidence in favor of the master against a third person.</p> <p>Nor does it make any difference that neither of the parties have any present recollection as to the subject matter of such entries.</p> <p>The weight, that should be given to such evidence, is exclusively a matter for the consideration of the Auditor.</p> <p>When the Auditor reported that certain items of account presented before him by each party were not charged by either of them at the time they accrued, but that they were considered and made even by them at the time, it was held that the finding of the Auditor must be treated as conclusive.</p>

<p> Officer, Process. Pleading. </p> <p>An officer is not liable for the penalty imposed by the Statute for neglecting or refusing to give a person a copy of the process by virtue of which he is arrested, unless he have process for such arrest in his hands at the time.</p> <p>When an officer arrested a person on a warrant returnable forthwith before a Justice of the Peace, and the Justice was absent at the time, and the officer placed the respondent in jail for safe keeping until the return of the Justice, and for no other purpose; and did not leave with the jail keeper any warrant or copy, and thereupon the respondent demanded a copy of the process, on which he was detained, of the jail keeper, who was also sheriff of the county, and tendered the fees therefor, and the jail keeper neglected for more than six hours to give him a copy, it was held the jail keeper' did not thereby become liable for the penalty imposed by the statute for neglecting or refusing for more than six hours after demand, to give the prisoner a copy of the process by virtue of which he was detained,</p> <p>When the declaration omitted to aver that the defendant had process or a warrant for detaining the prisoner in his hands at the time of the demand for a - copy, and no demurrer was interposed; it was held, nevertheless, that plaintiff was bound to show that fact on trial, as constituting an essential element in the offence charged.</p>

<p>This was an action of assumpsit; plea, general issue, with special notice and set off, tried at January term, 1861, Pier-point, J , presiding.</p> <p>The plaintiff gijye in evidence a written contract, accompanied with evidence tending to show that he entered upon the premises described in the contract, and occupied for one year, (when the term was ended, pursuant to notice given, three months previously, by the defendants ;) that he performed, during said year, the stipulations of said contract on his part, and that the defendants failed to supply the derrick, and “to put the pumps in order, and to have the drain in repair,” as expressed in said contract, and that he suffered pecuniary loss and damage thereby.</p> <p>Under the general issue and notice, the defendants offered evidence to prove that the plaintiff, in the execution of said contract on his part, as far as he performed it at all, worked the quarry therein mentioned unskillfully, carelessly, and in an unworkmanlike manner, so as greatly to lessen its value to the defendants, and that the same was surrendered and delivered up by the plaintiff at the end of the term, not in as good condition as when received by him at the commencement of said term, and that the damages resulting to the plaintiff therefrom, amounted to a large sum. This evidence was offered with a view to a recoupment of the plaintiff’s damages, if he should recover any. It was objected to by the plaintiff, and excluded, by the court.</p> <p>The plea and notice and plea in offset were filed on the trial by the consent of the counsel of the plaintiff, with tlie agreement that evidence might be given to support them, the same as if they had been filed within the time required by the rule. Under said plea in offset, the defendant offered evidence to show the failure of the plaintiff to perform said contract as stated in said plea, and to show unliquidated damages resulting to the defendants therefrom. This evidence was objected to by the plaintiff, and excluded by the court.</p> <p>The defendants gave evidence to show that they repaired said drain after the commencement of said term, at a cost of about sixty dollars ; but the plaintiff gave evidence tending to show that early in February he called on the defendauts to make such repairs, and that said repairs were neglected by the defendants for some two months after they reasonably ought to have been made, and. that in consequence he was unable, to work said quarry, and thereby his principal damages accrued.</p> <p>The court were requested by the defendants to instruct the jury that the measure of damages to the plaintiff for this neglect was the cost of the repairs, and not the detriment which he might have suffered from the drain remaining out of repair during all that time. The court refused so to charge the jury, but did charge them that if they found that the drain was out of repair when the contract was entered into, the defendants were bound by the contract to repair it within a reasonable time, r.t least after the fact was brought to their knowledge ; if, after the plaintiff gave the defendants notice that the drain wa.s out of repair, (as it was conceded he did,) the defendants recognizing their obligations to repair, agreed from time to time to repair it, and commenced doing so, and finally did repair it, as the evidence tended to show, (and about which there was no controversy ;) but failed and neglected to repair it within a reasonable time after such notice ; then the defendants were liable to the plaintiff for such damage as he sustained, as the immediate and necessary result of his not being able to work the quarry, as he had the right by his contract to do. and as he wanted to do, during the-period of such unreasonable delay.</p> <p>To which said several decisions and charge, and refusal to charge, the defendants excepted.</p>

Trustee Process. It appeared that on the 7th day of January, 1858, the defendants, L. Potter & Co.; made an assignment of their property ; that said assignment was duly executed by said Potter & Co., and recorded, and the said claimants accepted of the assignment, and 'claimed to hold the property of said Potter & Co., under and by virtue of said assignment.

<p>Assumpsit on two bills-of exchange, and on all the common counts. Plea, the general issue, and trial by the court at the September Term, I860, — Pierpoint, J., presiding.</p> <p>The plaintiff introduced in evidence the bills of exchange declared on, with certificates of protest for non-payment attached, and also gave evidence from which the court found the following facts : The defendants were copartners in the produce trade, purchasing in the country, with their house of business in New York. The bills were made at Pawlet, in this state, (where they hear date) Nov. 8th, 1859, by one John J. Woodard as drawer, addressed to the defendants, at 18 Front Street, New York, as drawees, and endorsed, one by John Stearns and the other by James Mendon and David Woodard. The bills were so made and endorsed at the request of the defendant, Marsden, and for the sole accommodation of .the defendants, as the drawer and indorsees were all informed at the time the bills were made. On the day of their date the defendant-, Marsden, and one Carvet, a clerk of the drawees, went with the hills to a Mr. Smith, in Granville, in the State of New York, who re Smith .resided, with a view to negotiate the bills and obtain money on them for the use of the defendants. Smith was at the time an agent of the plaintiff to exchange the money of the bank and purchase checks on other banks,'and had also authority to receive, and had been in the habit of receiving, paper lor discount and forwarding it to the plaintiff to be discounted ; and this and the plaintiff’s course of dealing with Smith were known to the defendants. In relation to such paper the plaintiff was accustomed to rely much on Smith’s judgment and knowledge of the parties and circumstances under which it was made. The bills in question were left with Smith at this interview, with the understanding between him and Marsden that Smith would get the money on them from the plaintiff the next day, (Nov. 9th,) and send it to Marsden at Whitehall, Marsden at the time assuring Smith that the bills' should be paid, and stating also that the drawer was doing business and paying out considerable money for the defendants. Smith was at the Bank on the 9th of November with the bills, and communicated to the cashier what had transpired between himself and Marsden in relation to sending the money to Whitehall, but not what had been said as to the bills being paid. The bills were thereupon discounted by the plaintiff', and the cashier immediately forwarded the money for their amount to Maisden at Whitehall, according to Marsden’s directions to Smith. The money was duly received there by Marsden, and by him immediately appropriated to the use of the defendants.</p> <p>The defendants introduced in evidence a statute law of the state of New York, providing among other things that no person within that state should be charged as an acceptor on a bill of exchange, unless his acceptance should be in writing, signed by himself or his lawful agent.</p> <p>The court decided that the plaintiffs could not recover on the counts against the defendants as acceptors, but were entitled to recover on the common counts, and rendered judgment for the amount expressed in the two bills of exchange, with interest, to which the defendants excepted.</p>

construed. Trespass for taking the plaintiff’s heifer, of the value of twenty-five dollars, on the 25th day of February, 1S59. The taking of the heifer, and the value at twenty-five dollars, were conceded, and the case was submitted to the court on the following facts : The plaintiff was a resident of school district No. 6, in Shrewsbury, and liable to be taxed therein in the years 1858 and 1859.

Trustee Process. The case was referred to a commissioner who reported as follows ; that the defendant, Todd, was a laborer in the employment of the trustees, Thacher and Henshaw ; and at the time of service of the process in this cause, (11th of August, 1857,) the trustees were indebted, on account of the services of the defendant, in the sum of forty-one dollars and eighteen cents ; that previous to the service of the process the defendant gave to Melzer Edson an assignment…

Trustee Process. The case was referred to a commissioner who reported the following facts : At the time of the service of the process upon the agent of the trustees, there was due from the trustees to the defendant the sum of eight dollars and five cents. If the labor performed on the same day of the service of the process is reckoned, then the trustees were indebted to the defendant in the sum of nine dollars and twenty cents.

<p>Assumpsit for a portion of the price of certain real estate sold by the plaintiffs to the defendant.</p> <p>The case was referred and the referee reported the following fact? : In the spring of 1856 the defendant was desirous of purchasing the farm of the plaintiff, Mrs, Jordon. She and her husband were willing to sell the same for twelve hundred dollars, and for no less sum, but would not sell unless they could first find where they could procure another farm that would suit them. Alanson Dyer, the father of the defendant, in his behalf, participated in the negotiation for the bargain. The defendant informed the plaintiffs that Rufus Goss, of Brandon, had a farm that he thought would suit the plaintiffs, and that Goss’ price for the farm was twelve hundred dollars. The plaintiffs agreed to go and see Goss’ farm, and Mr. Jordon went to Brandon for that purpose. The defendant or his father went with him and informed Jordon on the way that he could make a more advantageous trade with Goss for the -plaintiffs, than he, Jordon, could, and requested him to leave that part to him, Dyer. After viewing the Goss farm and consultation with each other, the plaintiffs agreed to sell their farm to the defendant at twelve hundred dollars, and take the Goss farm at the same sum, if the defendant could not induce Goss to take less for his place. The defendant traded with Goss and bought his farm for ten hundred and fifty dollars, and took a deed to Mrs. Jordon, to be returned to Goss if the trade should not be consummated with her and her husband. The defendant went to the plaintiffs with the Goss deed, and proposed to complete the trade. Mrs. Jordan, who was principal speaker in the negotiations, said she was willing to take the Goss place at twelve hundred dollars, if that was his lowest price, and asked the defendant if lie could not beat down Goss any in the price. The defendant then assured her that he could not; that twelve hundred dollars was the least Goss would take. The parties then went to the town clerk’s office, and there executed the deed from the plaintiffs to the defendant, and the deed from Goss was delivered by the defendant to the plaintiffs, Mrs. Jordon declaring at the time that she was not swapping farms, but buying and selling. The referee found that the plaintiffs were deceived by the defendant, and that if it had not been for the false representations of the defendant relative to. the amount paid Goss for his farm, the plaintiffs would not have traded Without the payment of one hundred and fifty dollars more. There was no agreement or promise to pay the plaintiffs anything more than Goss’ land for the plaintiffs’ farm.</p> <p>It was agreed by the parties that if the court should be of opinion that the plaintiffs were entitled to recover, upon the foregoing facts, the judgment in their favor should be for one hundred and ninety dollars and their costs; otherwise, that the defendant should recover his costs.</p> <p>The county court, at the September term, 1860, — Pjerpoint, J., presiding, — rendered judgment, upon the foregoing report, for the plaintiffs, to which the defendant excepted.</p>

Assumpsit for the price of two oxen. Declaration on the common counts ; plea, the general issue, and trial by the court at the March term, 1860, Pierpoint, J., presiding.

Debt. The plaintiff declared upon two judgments recovered against the defendant in the county court of Rutland county, one, in 1854, for one hundred and thirty dollars and twenty-five cents damages, and one hundred and eighty dollars and forty-four cents costs, the other, in 1856, for five hundred and seventy-three dollars and forty-seven cents damages, and one hundred and forty-two dollars and one cent costs.

Book Account. The auditor reported the following facts : The plaintiffs exhibited an account marked “A” for one hundred thirty-seven dollars and.ninety cents. The defendants were partners from January, 1857, to the last of March of the same year, when their partnership was dissolved.

General Assumpsit. The declaration contained the common counts. The ease was referred under a rule of court by agreement of parties, and was tried by the court on the report of the referees, at the September term, 1861, Pierpoint, J., presiding.

Assumpsit. Plea the general issue, and trial by jury at the. Mareh Term, A. D. 1860.

Trespass. The declaration alleged that the defendant, on the 15th day of July 1859, at Pawlet, in this state, assaulted, imprisoned, and detained the plaintiff, without any reasonable cause, and thereby compelled the plaintiff to pay the defendant the sum of' one hundred dollars, etc. The defendant, besides pleading the general issue, also filed a special plea, in which he set forth, that at a meeting of the inhabitants ‘ of the town of Pawlet, duly warned and held on the…

Trotee for certain property specified in a certain receipt, dated June 1, 1857, executed to the plaintiff by B. F. Fay and the defendant. Plea the'general issue, and trial by the court at the December term, 1859, — Kellogg, J., presiding.

Assumpsit on three promissory notes, one for five thousand dollars, one for six hundred and eleven dollars and twenty-eight cents, and one for two thousand two hundred and forty dollars and thirty-eight cents. Plea, the general issue. No defence was made to the. two first notes.

Assumpsit. The case was referred and the referee reported as follows : “It appears that on the 10th day of November 1858, tbe plaintiff called on tbe defendant for the purpose of buying the defendant’s cheese. The cheese was examined and about seventy in number of them, estimated by the parties to weigh four thousand pounds, were regarded by them fit for market.

The case was referred and the referee reported the following tacts : School district No. l,in the town of Sunderland, and the persons owning or residing upon certain farms in the town of Manchester and one farm in the town of Sandgate, have ali acted together and supported a school as one district, since about the year 1783. No records were kept in the district until the year 1805 ; since that time the district officers have been chosen in part from Manchester and Sandgate.

Ejectment for a certain tract of land situate in the town oí Winhall. Plea, not guilty, and trial by the court at the June term, 1860, Kellogg, J., presiding. The plaintiff read in evidence on the trial a deed executed by the defendant and his wife to him, the plaintiff, dated June 4th, 1857, and conveying in consideration of the sum of eight hundred and fifty dollars, the premises described in the plaintiff’s declaration in this action.

Trespass for taking and driving away seventy sheep. Plea, not guilty, trial by jury.

This was a bill to compel contribution towards a mortgage covering - lands owned both by the orator and the defendant. The facts sufficiently appear in the opinion of the court. The .chancellor dismissed the bill, from which decree the orator appealed. „

Book Account. The auditor reported that the plaintiffs were partners in business, residing at Londonderry, in this State, and that the defendants were partners under the name of Smith Waite, doing business at Lowell, Mass., as produce and commission merchcants ; that the account exhibited by the plaintiffs was correct, and that on the 23d day of March, 1855, there was a balance due from the defendants to the plaintiffs of $44.71.

Book Account. Among other things the auditor reported as follows: “ I find that the plaintiffs were partners under the firm ofL.

Assum:psit to recover for money expended in support of George Bemis, a pauper, confined in the county jail at Newfane. Plea, the general issue and trial by jury. It appeared. that Bemis was confined in clore jail, at the time the support was afforded, by virtue of a mittimus, which was read without objection, except as to the legality of the commitment, as therein described, and consequent detention.

Case against the defendant, as sheriff of the county of Wind-ham, for not safely keeping and delivering to the officer having an execution, five hundred barrels of flour attached by him on mesne pz’oeess. The plaintiff, proved the attachment, the recovery of judgment, and the issue of execution in the action, in the manner set forth in the declaration, together with the demand of the property and the refusal of the defendant to deliver the same.

<p> Attachment Election. Waiver. Referee. Amendment. </p> <p>If one, who has two cowb at the time one of them is taken under a writ of attachment, sues the attaching officer in trespass, on the ground that the cow taken was his only cow and therefore exempt from attachment under the statute, supposing at the time that the other cow in his possession belonged to his deceased wife’s estate, he cannot, on failing to establish the latter fact, change the ground of his action by claiming the right to elect which of the two cows should be treated as exempt. Such right of election if it existed at all, must, under the circumstances, be. regarded as having been waived, as he did not attempt to exercise it at the time of attachment.</p> <p>If a referee hears and determines other matters than those embraced in the issue formed in the case referred to him, it is not error, provided the other matters are such as might be brought into the case under any amendment which the county court could legally have allowed the party to make to his pleadings.</p> <p>Such amendments to the pleadings aré liberally allowed by the courts as tend ing to promote trial ancl determination on the subject matter in controversy upon which the action was originally really based ; but no amendment can be allowed which introduces into the case a new substantive cause of action different from that declared upon and different from that which the party intended to declare upon when he brought his action.</p> <p>Therefore, where the plaintiff,, who had only two cows, and had sued the •defendant, who was deputy sheriff, in trespass for attaching one of the cows, on the ground that the cow was exempt from attachment by law offered on the trial before a referee to prove that on the next day after the cow in suit was attached, the defendant came and took away the other cow also, and converted her to his own use ; Held that such proof could not have been properly admitted by the referee.</p>

<p> Contract. Sale. </p> <p>The plaintiff bought from G. a mare, supposed by the parties to be with foal, agreeing to give for her the colt (which the mare was expected to have,) when it should become four months old. The mare was in faet not with foal at the time, and had no colt while the plaintiff possessed her, and the plaintiff never paid to G. any colt, or anything else, for the mare. The plaintiff kept possession of the mare nearly three years when she was attached by the defendant, as deputy sheriff, at the suit of a third party as the property of G., and taken from the plaintiff's possession. Held that the title to the mare passed to the plaintiff on the completion, of the contract with G., and the fact that it was impossible for the plaintiff to pay for her in the manner agreed upon, did not render the sale void, but only rendered the plaintiff liable to pay for the mare in another way.</p> <p>Held, also, that even if the contract was of such a character that G. might have rescinded it and insisted upon a return of the mare, yeí, as he had not done so, a third person could not interfere and set aside a contract with which the parties appeared satisfied, and which was not made in violation of such third person's rights or interests.</p>

<p>Assumpsit upon a promissory note, dated October 23, 1857, for seventy-eight dollars, made by the defendant, and payable on demand to D. E. Dennison or bearer with interest.</p> <p>■ The referee, to whom the case was referred, reported the following facts: On the note in question were these indorsements, “ Oct. 27, 1857, received forty-five dollars. Received Feb. 20, 1858, on the within three and ten one-hundredths dollars,” The defendant’s evidence tended to show that the note was executed for the balance of the purchase money of a carriage and harness which the defendant bought of the payee, and that the harness included in the purchase, and valued at thirty dollars, was returned October 27, 1857, and by an agreement between them ' should have been endorsed on the note at that sum. This was contradicted by the testimony of the plaintiff. In the fall of 1857, Dennison, the payee, became insolvent and turned out this note to the plaintiff to secure another note upon which Dennison and a brother of the plaintiff were liable to a bank in Brattleboro, and afterwards tl}e note in suit was placed in the hands of one Stone to collect the balance due thereon, and pay it to the bank upon the note for which the note in controversy was held as collateral security. While the note in question was in the hands of Stone for this purpose, the defendant was called on for payment and a controversy arose between Stone, the plaintiff, and the defendant as to the amount due thereon, the defendant insisting that the sum of thirty dollars, being the value of the harness above mentioned, should have been endorsed upon the note under date of Oct. 27, 1857.</p> <p>The referee reported that he was satisfied from the testimony that it was not understood between Dennison and the defendant that the thirty dollars should be endorsed upon the note and that the defendant did not so consider or intend until after the failure of Dennison. And being satisfied that the plaintiff became the owner of the note before the commencement of this suit, the referee found for the plaintiff to recover of the defendant the sum of thirty-four dollars and twenty-three cents, for principal and interest, subject, however, to the following legal question: The referee found from the evidence that on the 20th of February, 1858, while the note was in the hands of Stone for collection, and after the interview above mentioned between Stone, the plaintiff and the defendant, the defendant tendered to Stone the sum of three dollars and ten cents, saying that “he tendered said sum as the balance due upon said note;” that Stone received the same saying “ he would take it to the bank, and they might do as they were a mind to,” and that he afterwards endorsed the same upon the note, being the endorsement of Feb. 20, 1858, above given. The referee further reported that he was of opinion that this conduct and action of-Stone amounted in law to an accord and satisfaction, and was a bar to the plaintiff’s recovery ; and he therefore found for the defendant to recover his costs But if the court should decide that the referee erred in this opinion, then he found for the plaintiff to recover thirty-four dollars and twenty-three cents, and his costs.</p> <p>The county court, at the September term, 1860, RedfieRd, Ch. J., presiding, rendered judgment on the foregoing report for' the defendant, to which the plaintiff excepted.</p>

Assumpsit. This case, and another in favor of the same plaintiff against the defendant Stockwell alone, in which the plaintiff’s claim was sixty-nine dollars and eighty-seven cents on account, were originally brought before a justice of the peace, and were carried to the county court by appeal.

Replevin for seven cattle. Plea not guilty and trial by jury at the April Term, 1860, — Redfield, Cb. J , presiding. Held: during the whole trial, with the acquiescence ol the counsel on both sides, that the^mere declarations of Wright in regard to the partnership, or to the title of the property in dispute, were not evidence, unless made in the presence of the plaintiff, or brought to his knowledge, and as part of some transaction which was evidence.

Assumpsit on a promissory note for $82.00, made by the -defendant March 30th, 1854, payable to one Vm. S. Bennett or bearer on the 15th day of July, 1854, and endorsed by the payee. The case was referred and the referee reported the following facts ; — This action was brought in the name of J. D. Bradley for the sole purpose of collection, Wm S. Beuuett, the pa'ee, being the owner of the note in suit and the only person in interest.

This is an action of trespass, guare clausum frecjit, for breaking and entering a certain carriage shop, and breaking, taking down, and carrying away certain articles of property, a list of which is given in the report of the referee hereinafter printed.

This was an action on a promissory note. The cause was referred, and the referee reported as follows: “ The plaintiff gave in evidence a promissory note signed by the defendant, bearing date December 8, 1855, for the sum of forty-nine dollars and eighty-nine cents, payable on demand with interest, and there rested the case.

This was an action of covenant broken. Plea, the general issue and general pleas in bar — trial by jury. The plaintiff gave in evidence 'the charter of the town of Marlboro, dated April 27, 1751, showing one right reserved to the use of schools; also, a plan of the town, showing th^at said right was allotted as right No. 57, and that said right was and is situated in the northwest corner of said town.

This was an action of trespass brought by the plaintiffs against the defendants for forcibly breaking open and entering their meeting house, situate in Halifax, breaking the doors and locks attached to the same, and carrying away and converting to their own use a stove and pipe belonging to the plaintiffs, situate therein. To this, the defendants pleaded, first, not guilty — issue to the country. Second. That there was no such corporation — verification. Third.

This was a petition to foreclose three mortgages on the same property. Answer and traverse. The case was referred, and the facts presented for the consideration of the court sufficiently appear m the referee’s report.

This was an action of book account brought by the plaintiffs against Cotton M. Houghton, in his life-time, and was pending in Windham county court at his decease, and the claim being laid before the commissioners on said Houghton’s estate was disallowed by them. An appeal was taken, and the plaintiffs filed their declaration in the Probate court under the statute in assumpsit for goods sold.

This was an action to recover wages for teaching school in the defendant’s district.

Book Account. The auditor reported that the defendant agreed to pay the plaintiff five hundred dollars, in consideration that the plaintiff agreed to labor faithfully before the legislature of 1853 for a charter of a bank at Royalton.

Tresspass Qua. Clau. — Plea, the general issue, with notice of special matter, that the close in which &c., was the soil and freehold of the defendant. The facts of the case sufficiently appear in the opinion of the court.

<p>Book Account. — The facts sufficiently appear in the opinion of the court.</p>

This was an indictment for burning the- factory of Thomas Greenbank, tried at December term, i860, Barrett J., presiding.

Ejectment for land in Plymouth. Plea general issue. Trial by jury, May Term, 1860, — Redfield, Ch. J., presiding. The facts necessary for a proper understanding of the point decided sufficiently appear in the opinion of the court. Exceptions by the plaintiff.

This was a bill of interpleader, answer and traverse. The parties defendants at this stage of the suit agreed upon a settlement, and submitted to the court the following statement of facts upon which to base a decree. This bill was brought by Nahum Horton as the executor of the last will and testament of Abraham Sawyer, late of said Chester, deceased, against the heirs of said Abraham, and also against the First Baptist Church and Society, in said Chester.

<p> Mortgage. Bents and Profits. Gosls. </p> <p>When the mortgagee, took possession of the mortgaged premises, after breach of the condition of the mortgage, and held the same for a number o f years, and the case was referred to a master to ascertain the rents and profits, who reported a great loss on the same in proportion to the value and condition of the premises, although he found the mortgagee exercised a most faithful stewardship in the management of the piemises, Held, that although a mortgagee in possession is only bound to account for what he receives or might reccive-from the mortgaged premises, by the use of fair, reasonable diligence and prudence, and if the premises are rented, and rents lost by the failure of a tenant without fault of the mortgagee he is not liable to account, still when the mortgagee himself occupies, and especially when the premises is a farm under cultivation, upon which labor -and expenditures are to be bestowed to produce annual crops and profits, the mortgagee will be charged with such sum as will be a fair rent for the premises, without regard to what he may in fact have realized as profits from the use of them.</p> <p>Ordinarily the supreme court will not disturb the decree of the chancellor in respect to costs.</p> <p>Under the circumstances of this case held the decree of the chancellor, deny ing the orator costs, was equitable and just.</p>

<p>Prosecution for violation of the act of 1852. to prevent traffic in intoxicating liquors for the purpose of drinking, which was brought into the county court by appeal. Plea not guilty, and trial by jury at the December term, 1860. The jury returned a verdict of guilty of three offences.</p> <p>The facts in the ease, and all questions arising on the trial, sufficiently appear in the opinion of the court,</p>

<p>Assumpsit upon a promissory note. Plea (he general issue, and trial by jury at the December term, I860, Barrett J., presiding.</p> <p>The material facts in the case are sufficiently stated in the opinion of the court.</p>

This was an action of trover for a cow ; plea, the general issue, and trial by jury, at the December Term, 1860, — Barrett, J., presiding.

Case. The declaration alleged that the defendant carelessly and negligently suffered his horse to be at large in the highway, whereby the horse of the plaintiff, which was traveling along the same highway, harnessed to a wagon, was, by the misconduct of the defendant’s horse, rendered so restive, frightened, and unmanageable, that he ran out of said highway, and was greatly damaged. Plea, the general issue, and trial by jury, May term, 1860, Redeield, Ch. J., presiding.

Book Account. The facts reported by the auditor, so far as they are necessary to illustrate the decision, are sufficiently stated in the opinion. Trial by the court, at the December Term, 1860, — Redfield, Ch. J., presiding.

Case. — The declaration set forth that the defendants were listers of the town of Bethel for the year 1857, and that as such listers they illegally set certain parcels of land to the plaintiff as the owner or possessor, and thereby compelled him to pay taxes thereon. Plea, not guilty, and trial by jury, at the December term, 1860, Barrltt J., presiding.

<p>This was an action founded upon the act of the legislature, entitled “ an act in alteration of chapter ninety-six of the Compiled Statutes, relating to the preservation of sheep,” approved November 12, 1856, and was brought to recover the penalty therein provided for suffering rams to be at large off the enclosure of the owner, and came into the county court by appeal from the judgment of a justice. Plea, the general issue, and notice of special matter.</p> <p>Trial by the court, at the May term, A. D. 1861, Redpield, Ch. J., presiding.</p> <p>From the statement of facts agreed upon by the parties, it appeared that the plaintiff, on the 21st day of September, 1857, commenced this action against the defendant before a justice of the peace, counting on the first section of “ an act in alteration of chapter ninety-six of the Compiled Statutes,” approved Vovember 12, 1856, in which action the plaintiff recovered judgment for the penalty provided in said section, and for his costs, from which judgment the defendant took an appeal to this court at the December term, 1857; that previous to the commencement thereof, the defendant therein had taken away from the possession of the plaintiff the ram, which, it is alleged in this action “ was found with the sheep of the plaintiff and off the enclosure of the defendant,” and for which alleged finding of the ram this action was brought; that the ram, at the time it was so found was marked with the defendant’s initials, and was at the time of going astray in the keeping of Paschal P. Shattuck; that on the first day of September, 1859, the plaintiff commenced an action of trover before a justice of the peace, against the defendant for taking the ram as aforesaid, claiming that the ram became his property by forfeiture under the provisions of the statute, and that on the 24th day of September, 1859, he recovered judgment therein for the value of the ram, and for his costs, which the defendant paid.and satisfied, the action not being appealable; that that action and this were predicated upon one and the same transaction. It further appeared, thal the ram in question, was kept with two other rams belonging to Thomas W. Pitkin, in the pasture of said Paschal P. Shattuck ; that the three rams escaped from the pasture together, and were found and taken up together, by the plaintiff; that afterwards, and before the commencement of this action, to wit: on the 5th day of September, 1857, Pitkin settled with the plaintiff for and on account of the three rams being found at large, and paid him five dollars and fifty cents in full satisfaction of all claims for so finding and taking them up. But it also appeared that the above accord and satisfaction were given in evidence by the defendant on the trial of the action of trover, in defence of the same. Upon these facts the county court rendered judgment pro forma for the defendant. Exceptions by the plaintiff.</p>

Debt upon the official bond of the defendant Samuel B. Mann as one of the directors of the Orange County Bank. The facts in the case sufficiently appear in the opinion of the court. The cause was tried, by the court at the June term, 1859r Barrett, J., presiding, and judgment was rendered for the plaintiff, to which the defendants excepted.

Action on the case for false warranty in sale of land. The first count of the declaration was as follows : “ For that ■whereas, the said plaintiff, on the 3d day of October, A. D., 1857, at Randolph aforesaid, bargained with the said defendant to buy of him a certain farm of the said defendant, whereon the said defendant, then lived, situate and being in said Randolph; and the said defendant then and there, to wit at said Randolph— well knowing that the north line of the…

Trespass for taking certain personal property. Plea, not guilty, with notice that the property in question was taken by the defendant as collector of school district No. 8 in Chelsea, and No. 15 in Brookfield, by virtue of a regular tax bill and warrant, &e. The case was tried upon an agreed statement of facts.

Trespass for an assault and battery. Plea, the general issue, with notice of special matter of-defence, and trial by jury at the June term, 1860, — Barrett, J-, presiding. On trial the plaintiff gave evidence tending to prove, that on the 17th of April, 1858, the defendants, together with Merrill Bowen and James Bowen, not parties to this suit, jointly committed upon the plaintiff an assault and battery.

Trespass for a quantity of wood. Plea, the general issue, and trial by jury, at the January term, 1860, Barrett J., presiding. The plaintiff gave evidence tending to prove that the defendant took a large quantity of wood from lots 47 and 48, in Brain-tree. To make title to the wood and lots she gave in evidence a record copy of a deed from Jacob Spear to herself and others, dated July 1, 1802, by which said lots were conveyed to her.

This was an action of assumpsit upon the following order: Mr. Edward Sprague: — Sir:—“Pay Sprague Arnold, Jr. ten dollars and ninety-six cents'and charge the same to me. Randolph, December 15, 1856. (Signed) . G. H. Burt.” Plea, non assumpsit and trial by the court by agreement of the parties.

Debt on judgment rendered by a justice of the peace in 1848, and brought into the county court by appeal. Plea, mil tiel record, payment, and notice of satisfaction by sale of property on the execution. Trial by jury, at the January term, 1860, Barrett, J.,presiding.

Trespass qu. cl. fr., and for carrying away a quantity of tools and implements, the property of the State of Vermont. Plea not guilty, with notiee of justification of the alleged trespass.

Assumpsit. The facts in the case and the charge of the county court to the jury, so far as it was excepted to by the defendant, are sufficiently set forth in the opinion of the court.

The plaintiff’s claim was for services rendered to the testator, Jabez Town, by his daughter, Laura Putnam, the plaintiff’s intestate, after she became of age, and while she remained a member of her father’s family.

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

This was an action of assumpsit, tried at the June term, 1861, Poland, Ch. J., presiding, the declaration containing special and general counts. Plea, the general issue and trial by jury. The plaintiff gave evidence tending to prove that-in 1855 certain inhabitants of Derby were anxious to have an alteration made in a public highway for the distance of about one mile, by laying a new road for that distance, and discontinuing the old road between the same points.

Covenant. The facts in the case are sufficiently stated in the opinion of the court. The case was tried by jury at the Decern-, ber term, 1858, Bennett, J., presiding. Upon the facts in the case, including those which the plaintiff claimed he could prove, the county court directed a verdict for the defendant, to which the plaintiff excepted.

This was an action on note, tried at the. June term, 1860, Poland, J., presiding. The defendant pleaded the general issue, and two pleas in bar. The case was tried by jury. It appeared on the trial that the plaintiff the year previous to the date of said note, carried on the business of butchering, and the defendant was employed by him to peddle meat, and in the course of said business received considerable sums of money belonging to the plaintiff.

Ejectment' for the easterly half of lot No. 2G, in Wheelock. The defendants. pleaded the general issue, and the case was tried by jury at the December term, 1859, Poland, J., presiding.

The plaintiff’s declaration contained counts in trespass and trover for taking and converting four tons of starch. Plea not guilty, and trial by jury at the December term, 1859, Poland, J., presiding. The plaintiff gave evidence tending to prove the following facts : In March, 1859, Daniel Whipple owned a starch factory in Lyndon, and that the defendant owned a quantity .of potatoes in said factory.

Audita Querela. The declaration is sufficiently set forth in the opinion of the court. The defendant demurred to the declaration, and the county court at the September term, 1860, Aldis, J., presiding, adjudged the declaration insufficient, to which the plaintiff excepted.

This was an action of trespass guare clausum and de bonis apostatis. The defendant pleaded the general issue and it was agreed by the plaintiffs that the defendant might under said plea give evidence of any legal defence. The cause was tried by jury at the March term, 1861, Poland, Ch. J., presiding.

The bill set forth, that at the December Term, 1855 , of the Windsor County Court, the orator recovered a judgment against the Vermont Central Railroad Company for $59,085.70, damages and cost; that he took out an execution thereon, and on the 14th of May, 1856, caused the same to be duly levied on certain lands belonging to that corporation, situated in Burlington, Northfield, Bolton, Waterbury, Essex, Middlesex, Windsor, and Richmond, which were severally described in the…

Bill in Chancery. The question in this case concerned the owners of certain machinery for the purpose of llburnet-king ” timber and ties, contained in a building at Northfield in the possession of the orators who were the trustees of the bondholders under the first mortgage of the Vermont Central Railroad, and at the time of bringing the bill in the possession and management of that road, as such trustees.

Indictment for forgery. The material portion of the indictment is sufficiently set forth in the opinion of the Court. The respondent demurred to the indictment, but the County Court for Chittenden County, at the September Term, 1859, Bennett, J., presiding, adjudged the indictment sufficient, to which the respondent excepted.

. Case to recover of the defendant, for the default of one Taylor constable of the defendant town, in not keeping,' so as to have forthcoming upon execution, certain flour attached by him, as constable, upon a writ in favor of the Bank of Malone against J. & J. H. Peck & Co., the demand upon which said writ was issued being the property of the plaintiff.

This was an action of trespass for false imprisonment, and was tried by the Orange County Court, at the June term, 1860. The defendant pleaded not guilty, and gave notice of a special justification.

Petition eor Partition. The petition set forth that the plaintiff and defendant were tenants in common of certain real estate in Bradford, which was described in the petition ; that they owned each one equal undivided half thereof; and that the parties could not agree on the division of the same, and the petitioner prayed the court to appoint commissioners so examine and order partition of the same, or in case the premises should be deemed indivisible, to award accordingly…

This was an action of slander for charging the plaintiff, an unmarried man, with having had illicit intercourse with a married woman, and thereby committed the crime of adultery.

Assumpsit. There had been a recovery in this case upon a former trial of the cause in the county court, and the judgment was reversed by the supreme court, on the defendants’ exceptions. The case having been remanded to the county court, the plaintiff, by leave of court, filed new Counts. The defendants moved the court to dismiss the new counts, as being for a different cause of action from that contained in the original declaration.

Trespass on the Freehold for a quantity of manure. Plea the general issue, and trial by Jury, December Term, Caledonia County, 1861, Poland, Ch. J., presiding. The plaintiff produced in evidence a deed from one Charles Varney of the premises, dated April 24, 1858, and recorded May 1, 1858. The manure in question was made on the premises while Varney was in possession of them, and was so situated as to pass by deed.

Action on the Case for the false warranty of a horse. Plea, the general issue and trial by the court, March Term, 1861. Peck, J., presiding. The plaintiff bought the horse of the defendant on the 23d day of July, 1859, at the price of one hundred and twenty-five dollars, for which the plaintiff gave his notes, and took the horse into his possession.

Assumpsit upon the common money counts. Plea, the general issue, and trial by jury at the December term, 1859, for Bennington county, Kellogg, J., presiding.

Assumpsit upon a contract that, in consideration of fifty dollars paid by the plaintiff io the defendant at the time of making the contract, the plaintiff delivered to the defendant, who was the managing trustee of the Rutland & Washington Railroad, and as such a common carrier, at Poultney, a certain number of sheep, on the 11th of May, 1857, which the defendant agreed to transport and deliver to the plaintiff at Troy, New York, .the next day, by fifty minutes past four…

Trustee Process. — The facts in the case sufficiently appear in the opinion of the court. The cause was tried by the court upon the commissioner’s report, at the June Term, 1861, in Caledonia County, Poland, Ch. J., presiding, and the court adjudged that the trustee was not chargeable, and that the claimants were entitled to the funds in the trustee’s hands to the extent of the executions in their favor held by the trustee. To this decision the plaintiffs excepted.

Book Account. The cause was entered in tire county court at the June term, 1857, in Franklin County. At that term the attorneys for the parties consented to the appointment of B. H. Smalley as auditor, knowing at the time that Mr. Smalley’s wife was first cousin of the defendant’s wife, but the fact of such relationship did not at that time occur to the plaintiff’s attorney, Mr. Smalley was accordingly appointed auditor.

Case to recover for an injury to the plaintiff, Maria E. Hadley, alleged to have happened in consequence of the letting by the defendant to the plaintiff, Cyrus Hadley, of a horse, wagon, and harness, to go on a journey, which wagon was unsafe and insufficient for that purpose. Pica, the general issue, and trial by jury at the March term, 1861, in Washington County, Peck, J., presiding. It appeared that the plaintiff,.

Case. The declaration alleged that prior to December, 1856, the defendant had been for a long time, to wit, seven years, a resident practicing physician at Mclndoe’s Falls ; that the plaintiff was then a physician and surgeon residing at Peacham ; that in consideration of seven hundred dollars paid by the plaintiff to the defendant, the defendant sold and delivered to the plaintiff one buggy wagon, one gig, one harness, two sleighs, and all the medicines, surgical…

Book Account. It appeared from the auditor’s report, that the plaintiff and Ferrand F. Merrill formed a law partnership in March, 1854, and that the 'plaintiff’s account accrued during that time.

Trover for certain property known as “ Kane’s Arctic Expedition,” consisting of three sections of paintings, on canvass. Plea the general issue and trial by jury, Windsor County, December Term, 1860, Barrett, J., presiding.

Action on the case for the breach of a written warranty in the sale of a horse. Plea, the general issue and trial by jury, June term, 1860, Addison County, Pierpoint, J., presiding. On trial the plaintiff gave in evidence a written instrument, signed by the defendant, of which the following is a copy: “ Bridport, Vermont, May 21, 1857.