Volume 35 — Vermont Reports

Ejectment for a tract of land in Williamstown. Plea the general issue, and trial by jury at the January term, 1861-, in Orange County. The plaintiff introduced the copy of a deed from Andros Reed to Andros A. Reed, dated December 10th, 1842, describing the land sued for, and also other land in Brookfield, and being what is called the Reed farm.

Book Account. The auditor reported that the plaintiff’s account was for a quantity of boxes sold and delivered by him to the defendant, in July and August, 1852, in the State of Maine, where .the parties then resided.

<p>Scire Facias on a recognizance iu a bastardy case taken before a justice of the peace, in which the defendant was bound as the surety of one Philbrook Batchelder, according to the provisions of the 3rd section of chapter 71 of the Compiled Statutes. Trial by the court at the March Term, 1861, in Washington county, Peck, J., presiding. .</p> <p>It appeared that the origina^ case iu the bastardy proceedings in which the recognizance was taken, was duly entered in the county court, and an appearance entered for the defendant by counsel, and a hearing had in court, and that the defendant was adjudged guilty, and an order made by which the defendant was ordered to pay the plaintiff for the support of the child certain sums by instalments. The defendant in that suit did not appear therein personally, and never gave any recognizance in the ease to abide or perform said order, nor any recognizance except the one taken before the justice. It appeared that no part of the order of court had been performed. The defendant’s counsel claimed there could be no recovery or execution for any thing beyond the amount that had already become due and payable by the terms of said order. The plaintiff claimed to recover the whole amount of said order, both that which had, and that which had not become due and payable.</p> <p>The court decided that the plaintiff should recover the sums that had already become due and payable, with interest thereon from the time the same fell due and payable, and the present worth of the remaining part of the sums so ordered to be paid,. and rendered judgment and awarded execution accordingly, to which the defendant excepted.</p>

Trustee Process. The facts in the ease appear sufficiently • in the opinion of the court. The county court, at the June Term, 1861, in Caledonia county, Poland, Ch. J., presiding, decided that the trustee was not chargeable, to which the plaintiffs excepted.

Trespass for taking a quantity of stone. The cause was referred and the referee made the following report : “ On the 4th of November, 1851, the plaintiffs being the owners of the ‘French Meeting House’ in Hardwick, and about three acres of land, on which the same was situated, conveyed the land by deed of that date, to Justus D. Goodrich, the son of the defendant, with the following reservations in the deed : 4 Ever reserving the said meeting-house and meeting-house sheds,…

<p>Debt upon a bond. The facts in the case sufficiently appeal® in the opinion of the court.</p> <p>The county court at the December Term, 1860, Aldis, J., presiding, rendered judgement for the defendant, to which the plaintiff excepted.</p>

Trover for a colt, one yearling and two two-years-old cattle, and one lamb.

<p> Statute of Limitations. Trustee Process. Principal and Agent. Booh Account. Costs. </p> <p>The fact that a debtor, who has been absent from the state more than six years, has had during that time, within the knowledge of the creditor, funds in the hands of a third person liable to be reached by the trustee process, will not bring the, case within the operation of the statute of limitations, if the debt does not exceed ten dollars.</p> <p>Quere, whether it would have that effect if the d(^)t did exceed ten dollars.</p> <p>Though in certain cases of long continued agency, notice of the revocation thereof is necessary to prevent the principal from being liable for the acts of the agent after his agency has been revoked, to those who contract with him in good faith upon the credit of his principal, yet this rule does not apply to cases where the agent had only a special authority to do a particular act or make a particular contract.</p> <p>In book account the county court has a discretionary power to deny full costs to the plaintiff if he fails to sustain his whole claim.</p>

<p> New Trial. Practice. Jury.. </p> <p>A jury having settled their minds as to the rights of the parties, but being in doubt as to the proper mode of mating a computation of what was due the successful party, called the county clerk into their room and inquired of, and were correctly informed by, him, how the computation should be made, and rendered a verdict accordingly. Held, that this course, though an irregularity, would not warrant the court in setting aside the verdict.</p>

Assumpsit on the common counts. Plea, the general issue. Trial by jury at the May Term, 1861, in Lamoille county, Aldis, J.., presiding. The account of the plaintiffs for which the suit was brought, consisted of about twenty items, and began in 1850. The plaintiffs were partners in managing and carrying on a farm and its stock, from 1849 to the time this suit was begun.

Bill in Chancery. The facts in the case are sufficiently-stated in the opinion of the court. The chancellor dismissed the orator’s bill, from which decree the orator appealed.

Bill in Chancery. The facts in this case appear sufficiently in the opinion of the court. The chancellor, at the January Term, 1861, in Orange county, pro forma, dismissed the hill, from which decree the oratrix appealed.

This was an action of trespass gu. cl. The defendants pleaded in justification a right of way of necessity from the close occupied by them, over the plaintiff’s close, to the public highway ; the plaintiff’s close lying between theirs and said highway ; averring that at none of the said several times when, &c., could the defendants have access to their said close from said highway, or egress from their said close to said highway, or to any other highway or public place,…

This was an action on the case against the defendant, as sheriff of Chittenden county, for the neglect of his deputy, Rolla Gleason, in the care of property attached by him on process against the plaintiff, and was tried by the jury on the general issue at the September Term, 1860, Kellogg, J., presiding.

Indebitatus Assumpsit for money paid. The facts of the case and the rulings of the court below are stated in the opinion of the court. The case was tried by jury at the April Term, 1861, Piebpoint, J., presiding. The defendant excepted to the charge of the court. The jury rendered a verdict for the plaintiff.

This was an action to recover the penalty given by the statute for being party to certain fraudulent suits and judgments in fayor of the defendant against one Merchant and one Fiske, who were partners in the business of peddling. Plea the general issue, and trial by jury at the April Term, 1861, Pierpoint, J., presiding.

Trustee Process. The cause was referred to a commissioner who reported, among other things rendered immaterial by the decision of the court, the following facts: íhe defendants were… Held: after applying a former dividend made by the assignee, the sum of $4,642.45. The assignee on that day paid on this paper from the assignment fnnds $3,272.49. The residue of said paper was paid to the bank on the same day by Crane, out of the $1,964 deposited there as above mentioned.

Richard Moore, being the owner of certain estate situate in this state, died intestate, leaving no issue nor widow nor father nor mother nor lineal heir. The appellants were his only surviving brothers. Sally Dunbar, wife of John B. Dunbar, of Swanton, was his only sister. She died before the intestate, April 12th, 1859, without issue born of her body. In 1849, the legislature passed the following enactment: “ Sec. 3.

No signature of any justice of the peace, or any other magistrate authorized by law to sign county court writs, appeared upon the face of the paper containing the writ, except at' the foot of the minute of the recognizance taken as security for the defendant’s costs, where a justice of the peace had signed his name. This minute of the recognizance was separated from the body of the writ by the blank space usually left for the signature of the authority issuing the writ.

Petition to foreclose a mortgage executed by the defendant Clark to the petitioner.

Case against the defendants, for fraudulently and illegally withholding from the plaintiffs certain money to which the plain-' tiffs were entitled- as their distributive share of the rents of lauds in the town of Fletcher granted to the use of the ministry, and which- it was the duty of the defendants, as selectmen of the town, to divide among the several religious societies therein in proportion to their several numbers, agreeably to section 5 of chapter 89 of the Compiled…

Trustee Process. The facts in the case and the judgment of the court below-are sufficiently stated in the opinion of the court.

Bill in Chancery. The bill’was brought to the June Term, 1861, and set forth that on the 25th of January, 1859, the defendants were the owners of three undivided fifths of a farm in Shoreham, of which the orator owned one-fifth, being the farm of Eeuben Doane, deceased, the father of the defendants ; that on that day the defendants, in consideration of $2200, sold and conveyed by deed to the orator their interest in such farm ; that on the same day the orator executed to the…

Trespass for taking a heifer. Plea, not guilty, and a tender of sufficient amends for the injury complained of, with the accrued costs, in accordance with the statute, act of 1856, No. 15, General Statutes, chapter 25, section 44, p. 200. The plaintiff replied, traversing the tender of sufficient amends. The cause' was tried by jury at the March Term, 1861, Kellogg, J., presiding.

This was an appeal from the decision of commissioners upon the estate of Deliverance Rogers, The case was referred, and the referee reported-the following facts : On the 16th of November, 1846, one Randall was, and had for several years previously been, in the occupancy of a farm in Derby, belonging to the testator, Rogers, upon shares.

.Appeal frpm au order of removal of Pebepca ^Villiapis and her five minor children from the town of Poultney to the town of Sandgate, which order of removal waa made December 24th, 1859. Plea that the last legal settlement of the paupers was not in Sandgate, on'which plea issue was joined. The cause was tried by.the court at the September Term, 1861, Kellogg, J., presiding.

<p>Case. The declaration set forth that the plaintiff was the owner of fifty shares of the capital stock of the Franklin Mining Company, of the true value and situation whereof she was ignorant, and had no means of accurate information, and that the defendant undertook, at her request, to ascertain and communicate to her the value of such stock; th%t said stock was worth thirteen hundred dollars, which the defendant ascertained, but that he, contriving and intending to defraud the plaintiff, and to obtain said stock from her at much less than its just value, did not communicate to the plaintiff or inform her of its true value or the facts in relation thereto, but fraudulently concealed and suppressed the same, and fraudulently induced the plaintiff to believe that the said stock was of much less value than it really was, and also falsely represented that the same was of much less value than it really was ; and also falsely represented that the same was about .to be subject to a large assessment, when in fact, and as the defendant well knew, Said assessment was only two dollars upon a share ; that by means thereof the defendant then and there induced the plaintiff to transfer to him (and for his benefit,) the said stock for the sum of'two hundred and seventy-five dollars paid her therefor by him, being much less than its real value as aforesaid ; that the plaintiff believed and relied upon said representations, and was wholly ignorant of the facts so concealed and suppressed by the defendant as aforesaid, and of the true value of said stock, and supposed that the ■defendant had fully communicated to her his knowledge on the subject; and that she therefore' did transfer said stock to the defendant, and for his benefit, for said last mentioned sum and no more ; and that the defendant received and converted the same to his own use, and immediately sold the same for the sum of thirteen hundred dollars ; and that thereby the plaintiff took the whole value of said stock over and above the sum of two hundred and seventy-five dollars, to wit: ten hundred and twenty-five dollars.</p> <p>The defendant pleaded the general issue, and the cause was tried by jury at the September Term, 1860, Pierpoint, J., presiding.</p> <p>On trial the plaintiff gave evidence tending to show that in December, 1857, the.defendant, who had in his hands two hundred and seventy-five dollars of the plaintiff’s money, told the. plaintiff that he owned about six hundred shares of the capital stock in the Franklin Mining Company, (a company incorporated in the state of Michigan,) which stock was guaranteed to him, and proposed to the plaintiff to appropriate the money then remaining in his hands, belonging to her, in the purchase of fifty shares of the capital stock of the company, for her benefit; that he said the'company or Messrs. Palmer would guarantee that the stock would pay twenty per cent, for two years, and at the end of that time they would take back the stock at the’price paid for it, and the twenty per cent, added if the purchaser preferred to take that rather than keep the stock, and that he would give her his individual guaranty to the same effect ; and that he also told her he wanted to do something to make her independent, and he thought this would do it; also, that he had no doubt but the stock would increase in value so as to make her independent; and that being himself interested in the stock, he would keep the plaintiff informed as to the situation and value of the stock ; and that he should go to the mines a year from next June ; that upon the representations of the defendant, and without any knowledge of her own on the subject, the plaintiff concluded to take the stock, and soon afterwards the defendant sent for fifty shares of the stock, and obtained a certificate of the same, with the guarantee of Messrs. Palmer, as recited below, and delivered the same to the plaintiff, and thereupon executed his own written guarantee, upon the back of said certificate, in the following terms:</p> <p>“ MEMORANDUM.</p> <p>New York, Dec. 22nd, 1857,</p> <p>Sold to B. N. Leach of Middletown, Vt., Certificate No.- 33 of ‘ Franklin Mining Company,’ of the state of Michigan, being certificate for fifty shares in said Franklin Mines, issued origin-: ally to Charles H. Palmer. I agree for myself and for my brother, Charles H. Palmer, to re-purchase on the first day of July, 1859, the above described shares at the rate of seven and 70-100 dollars per share (on sixty days’ time) if the said Leach Qr the bolder of this guaranty so desires.</p> <p>N. Gr. PALMER, for himself and brother, CHARLES H. PALMER.”</p> <p>“ Middletown, Dec. 29th, 1857.</p> <p>I have this day sold the within described fifty shares of the Franklin Mining Company to Mrs. Cynthia S. Mallory of Middletown, Vt., and' become surety to her for the faithful fulfillment of the guarantee of Charles H. & N. Gr. Palmer, so that in case they should fail to redeem their pledge to re-purchase, (if she so desires,) I hereby agree to take their place and to re-purchase said fifty shares of stock, at the rate therein specified, if Mrs. Mallory shall so desire.</p> <p>B. N. LEACH.”</p> <p>The plaintiff’s evidence further tended to show that the defen-, dant requested the plaintiff to keep the transaction secret from all except her father and mother; and that the defendant paid for said fifty shares of stock $275 and the interest thereon from July 1st, 1857, and that the plaintiff gave the defendant her note for $6 to cover such interest, at the time the above recited contract was made. ,</p> <p>The defendant’s counsel objected to the admission of any parol testimony as to what was said by the parties relating to the transaction. The court admitted the evidence of what was said by the parties previous to, and at the time of, the making of the writing, as showing the situation and relation of the parties and tending to explain or give character to the subsequent acts of the parties relating to the stock in which it is alleged the fraud was committed.</p> <p>It further appeared that in making the contract the plaintiff had the advice of her father, who was a man of intelligence and good business talent.</p> <p>The evidence introduced by the plaintiff also tended to show that on the 80th of June, 1859, the defendant and the plaintiff’s father met, and the defendant inquired of the plaintiff’s father if he knew whether the plaintiff had decided whether to keep the stock or re-convey it to him, according to the terms of the com tract, and in the course of the conversation the defendant said that he expected there was to be a large assessment on the stock that fall, and that he should have to pay about $1100 on his stock; that in this conversation the defendant did not tell the plaintiff’s father any thing about the real value of the stock, or. say any thing calculated to put them on inquiry ; that the plaintiff’s father said that he supposed that the plaintiff would elect to re-convey the stock ; that on the morning o' the 1st of July, 1859, the plaintiff sent word by her father to the defendant that she had concluded to have him take back the stock; that in the afternoon of the same day the defendant called upon the plaintiff, and the plaintiff then informed the defendant that she had concluded to have him take back the stock according to the contract ; that the plaintiff made no inquiries of the defendant about the value or condition of the stock, and knew nothing of its value except what the defendant had said about an assessment upon the stock; that the defendant then paid the plaintiff $94.50, in money, and gave her his note for $290.50, by consent of the plaintiff, payable in six months, which note has since been paid, making the sum of $7.70 per share on said stock, amounting in the aggregate to $385.00.</p> <p>The plaintiff also* gave evidence tending to prove that at the time of the re-transfei of the stock, and of the defendant’s conversation with the plaintiff’s father in relation to it, the stock was worth in market about $1300 ; that the defendant was aware of it, and intentionally concealed it from the plaintiff; that the plaintiff did not know any thing about its value, but relied on the previous undertaking of the defendant to inform her in relation to it.</p> <p>It further appeared that the defendant at the time he took the conveyance of the stock from the plaintiff, knew that it w,as quoted in the public newspapers at $22.00 per share, but had no other information than what he derived from the newspapers, that such quotation was correct, and the defendant supposed it to be so, and that he said nothing to the plaintiff about the value of the stock. It further appeared that the plaintiff learned of the true value of the stock about two weeks after she re-conveyed the same to the defendant, but that she did not thereafter-wards express any dissatisfaction to the defendant personally, nor offer to rescind her contract of re-conveyance ; and that when the defendant’s note of $290,50 matured, she received payment of the same without objection, but had no personal communication with him in relation to the matter.</p> <p>The defendant introduced testimony on his part tending to show that in the course of his conversation with the plaintiff previous to the making of the written contract above recited, he incidentally expressed his intention of going to the mines a year from the next June, and that if the stock did not turn Out as well as he had anticipated, he would inform her, and that he gave her no other or further assurance either as to going to the mines, or keeping her informed as to the situation and value of the stock; that soon after the contract was made, the plaintiff, by reason of improper influences from third persons, became alienated toward the defendant, and lost confidence in him ; that the plaintiff never afterwards enquired of the defendant about the value or condition of the stock, and did not, at the time she transferred the stock to the defendant, make any inquiries about its value; that the defendant had never been to the mines, and that in all the representations made by him before and at the time of the contract, and in the procuring of said stock for the plaintiff, the defendant acted in entire good faith, and that there were good and satisfactory reasons, as both parties understood at the time, for keeping the transaction secret; that he knew the value of the stock at the time of the re-conveyance; that he did not inform the plaintiff, and had no reason to suppose she knew it; that when he informed the plaintiff’s father about the proposed assessment, he had been informed and believed that there was to be an assessment upon the capital stock of the company, and that in point of fact an assessment of two dollars on the share was made soon after the re-conveyance of the stock by the plaintiff to the defendant, and that the assessment on the defendant’s original stock amounted to twelve hundred dollars; that he did not allude to the subject matter of an assessment upon the stock, until after the plaintiff’s father had informed him that the plaintiff would probably elect to re-convey the stock to the defendant; that he had no other information about the value of the stock at the time of the re-conveyance of the same to him by the plaintiff than the stock quotations contained in the public newspapers, and that about forty of these papers were taken and distributed in the town of Middletown, where the plaintiff resided; bit it did not appear that either the plaintiff or hep ' “ father took or even saw any of those papers. The plaintiff testified that she did not, and also that about/our months after the plaintiff purchased said stock of the defendant, he advised her to hold on to it, as he thought it would make her independent.</p> <p>After the close oi the evidence, the defendant’s counsel claimed, and requested the court to charge the jury:</p> <p>1. That the evidence in relation to the contract varied from the allegations in the declaration, and that therefore the plaintiff could not recover:</p> <p>2. That the contract in writing controlled the transaction, and that no obligation existed upon the part of the defendant beyond what was contained in the written contract, or imposed by it. And that if the plaintiff elected to re-convey the stock and receive the premium provided by the contract, no fraud could'be imputed to the defendant:</p> <p>3. That in order to create a liability on the part of the defendant, it was incumbent upon the plaintiff to make out that the defendant was guilty of some fraud by means of which the plaintiff was induced to re-convey to him the stock. And that as it was conceded that the defendant made no representations, either before or at the time of said transfer, that were not in point of fact true, no recovery could be had for false representations. And that a mere failure on his part to disclose any knowledge or belief that he might have had of the value of the stock, could not amount to a fraud for which a recovery could be had, if no inquiries were, made of him for information.</p> <p>4. That the defendant being under obligation to take the stock at the price specified in the contract, if the plaintiff so elected, and she having so elected without making any inquiries of the defendant as to its value, no fraud could be imputed to the defendant growing out of the voluntary performance on his part of a contract she has the right to enforce.</p> <p>5. That fraud can not bo predicated upon representations that were true ; and that if the defendant represented that an assessment was to bo made upon the stock, and the assessment was actually made as represented, no recovery could bo had by reason of such representation.</p> <p>C, That if the plaintiff, after having ascertained the real value of the stock, failed to repudiate the contract of re-conveyance, but retained the note that the defendant gave her, without offering to rescind, and finally received her pay upon said note without objection, at or about the time it matured, it would constitute a ratification of the contract of re-conveyance, and a waiver of any supposed claim she might have had, even if the transaction were in itself fraudulent.</p> <p>The court declined to charge as requested, but charged the jury in substance, and among other things not objected to, as follows:</p> <p>That the rule of law is not settled that the vendee of property is bound to communicate all the knowledge he possesses as to the character and condition or value of the property he purchases ; but that he is bound not to make any false representations as to the property, to induce the owner to sell it for leSs than he knows it to be worth ;</p> <p>That if there was nothing between the parties to this suit except that the defendant proposed to re-purchase the stock, he would not be under obligation to give the plaintiff .any information as to the value of the stock; and that if the defendant took back the stock on the original agreement between the parties, he at the time knowing what the market price was, still he was not bound to make that market price known to the plaintiff, but if the defendant said anything with a view to mislead the plaintiff as to the value of the stock, and induce her to sell the stock at a price less than its value, and she relied thereon and was deceived thereby, he would be liable in this action, unless he disclosed all his knowledge of its value ; that if he told her facts calculated to depreciate its value, he must also communicate all the facts within his knowledge tending to enhance its value : '</p> <p>That if the defendant, with a view to induce the plaintiff to sell him the stock, represented that a large assessment was to be made upon said stock, he at the same time knowing the stock to be worth much more than he was to pay for it, he was bound to communicate to the plaintiff such information as he possessed in relation to the value of the stock, although the representation he did make was in point of fact true ; that if the defendant said what was irqe? and at the same time knew that the mapket value of the stock was much more than he was to pay, he would be liable in this action if he did not tell the whole truth; that a man may commit a fraud in telling the truth, if in stating' the truth he intends to deceive another, and states it in'such a manner as to deceive that other ; and that this depended upon the intent with which the communication was made :</p> <p>That, as by the evidence in this case it was no part of the original agreement or contract that the defendant was to give the plaintiff any information in relation to the stock, no obligation existed by virtue of the written contract to impart such information; but that if, at the time the written contract was made, the defendant told the plaintiff that he would inform her of the situation and value of the stock from time to time, and the plaintiff relied’ upon such promises, and the defendant obtained information relating thereto, he would be bound to communicate that information to her before he purchased back the stock, especially when the circumstances were such that he supposed she was acting in ignorance of it, because he had placed himself in such a relation that it would be a fraud if he received back the stock without giving her the knowledge he possessed; that the defendant should not have suffered the plaintiff to mislead herself by so conveying the stock to him under such circumstances that the inference would be irresistible that she would not have sold the stock for three hundred and eighty-five dollars, when it was worth nearly twelve hundred dollars ; that if the defendant did agree to give her such information, and had reason to believe that the plaintiff did not know what the real value of the stock was, he was bound to communicate it; that in determining whether fraud was committed or not, the jury were to find whether the defendant did agree to give information as to the condition of the stock ; and if the defendant did so agree and had information and failed to communicate it, it was such a fraud, under the circumstances of the case, as would entitle the plaintiff to recover ; that an incidental remark that the defendant was going to the mines, and that if the stock did pot turn out well he would inform her, &c., as stated in the defendant’s testimony, would not be sufficient to make the defendant liable.</p> <p>Yo the admission of the evidence objected to, to the refusal of the court to charge as requested, and to the charge of the court as made, the defendant excepted.</p>

<p>Trustee Process . The commissioner reported that Aaron J. Ketcham, one of the defendants, and James M. Ketcham, one of the trustees, were the sons of Barnard Ketcham, deceased, and of Mary Ketcham, the other trustee; that Barnard Ketcham devised by will all his property to his wife, Mary Ketcham, adding in his will that he did this “ in the belief that the said Mary Ketcham will make such a distribution of my property among and between our children as will be just and equal (after keeping and using such parts thereof as she may want during her life time) according to the respective claims of our children, as she shall judge to be just and proper, and in accordance with what she knows to be my wish in the distribution of my property among my children ; and it is my wish that the said Mary shall at such times as she shall deem it advisable, and after using all the property she may wish for her own comfort and support, provide for the distribution of aü my property to our children, in a manner that shall be just and equal between them, having regard to such as may have received property from me, and other circumstances which should have an iufluence in the distribution of the property which I shall have at my decease.”</p> <p>The commissioner reported that Aaron J. Ketcham received from his father during his life lime an amount of property greater than he would have been entitled in an equal distribution of his father’s estate among his heirs, and was besides lai’gely indebted to the estate ; that Aaron J. Ketcham had failed previous to his father’s death ; that after his father’s death, his mother, Mary Ketcham, who had taken possession of all her husband’s estate as the sole owner thereof, made in 1859 a distribution of all the real estate, left by Barnard Ketcham, among the latter’s heirs, except Aaron J. Ketcham ; that about the time of this distribution she executed to James M. Ketcham a promissory note for about seven thousand dollars, conditioned that the avails should be applied by James M. Ketcham for the benefit of his brother Aaron, at his discretion ; that this note was delivered to Aaron and retained by him until February, 1860, when he surrendered it to his mother, and took in its stead, and retained up to the hearing before the commissioner, a bond from her to James M. Ketcham and Phineas P. Yail, in trust for him, for $8,500, to be paid to the obligees and to be held and invested by them for the use and benefit of Aaron J. Ketcham, and that this bond further provided that the obligees were to expend the annual income for the maintenance and support of the said Aaron, or at their discretion to pay the same, as it accrued, directly to him, and, if it could be done without risk, they were authorized at their discretion to pay over the whole sum to him in his lifetime, and upon his death to pay it to his legatees or heirs.</p> <p>■ The commissioner further reported that both this bond and the note for which it was substituted, were made with the intent of providing for the support of Aaron J. Ketcham, and of doing so in such a manner that the fund should be beyond the reach of his creditors, and that there was no other consideration for the execution of the note and bond by Mary Ketcham, other than parental affection, unless there was such a trust created in her by the will of her husband as would compel her to make some provision for Aaron out of the estate of her husband in her hands as legatee.</p> <p>The commissioner, upon these facts, decided that neither of the trustees were chargeable, and the county cóurt at the September Term, 1861, Kellogg, J., presiding, rendered pro forma the same decision, to which the plaintiff excepted.</p>

These actions were all in assumpsit, and were brought respectively upon three promissory notes, which, with the facts in the case, are set forth in the opinion of the court. The causes were referred to' a referee, upon whose report the county court, at the March Term, 1861, Kellogg,'J., presiding, rendered judgment pro forma in each of the cases for the plaintiff for the amount of each note respectively, to which the defendant excepted.

<p>Assumpsit. The facts in the case sufficiently appear in the opinion of the court. The cause was tried by the court at the September Term, 1861, Kellogg, J., presiding. The county court decided that the plaintiff was entitled to recover the amount of the note in suit, and rendered judgment accordingly, to which the defendant excepted.</p>

<p> Sale. Contract. Damages. Earnest Money. Demand. </p> <p>In an executory contract for the sale of property to be received and paid for at a specified time, the purchaser, in order to recover damages for non-performance of the contract by the seller, must offer to receive the property and pay the price, at the stipulated time, unless the seller has put it out of his own power to perform the contract, and this fact is known to the purchaser, and he for that reason omits to make such offer.</p> <p>¡But the purchaser may, in such case, recover back the earnest money paid by him, if the seller before the time of performance has repudiated the contract and contracted to dispose of the property to another person, even though this fact be not known to the purchaser, who is only prevented from making a seasonable offer to perform on his part by an unforeseen accident which delays his arrival at the place of delivery until after the appointed time.</p> <p>Held, in such a case, that the purchaser could recover back the earnest money paid by him, without any demand upon the seller before suit.</p>

Assumpsit upon a promissory note, signed by the defendant, and payable to John V. Lapham, or bearer. The declaration also contained the common money counts. Plea, the general issue, with notice under the statute (Acts of 1856, No. 8,) that the defendant would rely upon and show payment in defence. Trial by jury at the March Term, 1861, Kellogg, J., presiding.

Ejectment for a store, and the land upon which it stood, in Rupert. The case was referred, and the referee reported the following facts: David Sheldon, who owned the land in question previous to May 1st, 1852, on that day conveyed it, with .other land surrounding it, to the Rutland and Washington Railroad Company.

Trustee Process. This case was originally commenced before a justice of the peace, by whom judgment was rendered for the plaintiff for $92.82 damages and $4.09 costs against the principal debtor. The trustee made no appearance before the justice, and she was defaulted and adjudged chargeable for $96.91, the amount of the judgment against the principal debtor. The principal debtor appealed to the county court.

Trespass for taking a yoke of oxen. The case was referred, and the referee reported the following facts : “In April, 1859, Azro M. Wright, being the owner of a pair of oxen, sold them to Hiram Wooley for $118 on condition that they were to remain the property of Wright till.paid for, and Wooley to have till winter to pay for them, and Wooley took possession of the oxen.

Ejectment. The plaintiff claimed title under a warranty-deed from one Fortin Church to him, dated October 29th, 1855.

Plea, that the pauper was unduly removed, and trial by the court at the September Term, 1860, Redeield, Ch. J., presiding, upon the following agreed statement of facts : “ It is agreed between the parties that the pauper, Thankful Sawtell, was born in Brattleboro in 1792, and with her father, Richard Sawtell, removed to Somerset in 1795.* That Richard Sawtell,- the father, came to reside in Somerset on that part of the town annexed to Wilmington by the act of annexation…

Richardson, deceased. The cause was tried by jury at the September Term, 1860, Redpield, Ch. J., presiding. It appeared on trial that the instrument propounded was executed by the testator at Springfield, Vermont, on the 17th of September, 1857, in the presence of Henry Closson, Emily W. Closson, and Barna A. Cook, who subscribed their names thereunto as witnesses.

Book Account. The facts of this case sufficiently appear from the opinion of the court. The defendant excepted to the judgment of the county court.

Replevin for seven cattle belonging to the plaintiff, and ¡alleged to have been unlawfully taken and detained by the defendant. Plea, the general issue, and trial by jury at the September Term, 1861, Barrett, J., presiding.

The facts in these cases are stated in the opinion of the court. The causes were tried by the court on the report of the referee, at the September Term, 1861, Barrett, J., presiding. The county court rendered judgment for the defendant, to which the plaintiff excepted.

Bill in Chancery.- The bill charged that in March, 1856; the orator sold and conveyed to Amos A. Brown, a ten acre pasture in 'Whitingham, for $120, in which pasture was a spring, which supplied the house owned and occupied by the orator, and also several other houses owned and rented by him, with water; that in the bargain with Amos Brown and in the deed to him, the orator reserved the use of the spring and the right to bring water from it to supply his various houses, by…

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

Assumpsit upon a promissory note. Plea, non-assumpsit and plea in offset, and trial by jury at the December Term, 1861, Barret, J., presiding. The only controversy in the trial was under the plea in offset, and the questions at issue are sufficiently presented in the opinion of the court. Exceptions by the plaintiff.

Book Account. From the auditor’s report it appeared that the first item of the plaintiff’s account was for serving a writ, as sheriff, in favor of the defendant against one Low. The second item was for time spent at the defendant’s request, in trying to settle his suit against Low. No question was made in the supreme court in regard to the propriety of these two items.

Scire Facias upon an official recognizance entered into by the defendant, John E. Chamberlin, as sheriff of Orange county, and by the other defendants as his bail, for the faithful performance by John E. Chamberlin of his duties as such sheriff.

Assumpsit on a promissory note for six hundred dollars, dated August 15th, 1857, payable to the plaintiffs in ninety days after date, and signed by the defendants, and by one Wyman, who was also named as a defendant in the writ, but as to whom the officer serving the writ made a non est return. The defendant Webster pleaded the general issue, and the cause was tried at the January Term, 1861, Peck, J., presiding.

Petition by the widow and minor children of Matthew Chaplin, deceased, for relief, in respect to their homestead interest in certain real estate; in accordance with the provisions of the act of 1857, entitled “ an act relating to the homestead,” (Acts of 1857, No. 28, p. 39.) The facts of the case sufficiently appear from the opinion of the court.

Plea, that the pauper was unduly removed, and trial by jury at the January Term, 1861, Peck, J., presiding. The controversy in the suit was as to the time of the removal of Joel Billings, the father of the husband of the pauper, with his family, from Woodstock to Hartland. On the part of Woodstock the evidence tended to show that said Joel Billings thus removed to Hartland in the spring of 1816, and on the part of Randolph that he removed in the fall of the same year.

Book Account. The auditor reported that the first item of the plaintiff’s account was for labor from December 26th, 1859, to July 11th, 1860, at the rate of fifteen dollars per month; that shortly before the 26th of December, 1859, the plaintiff contracted with the defendant to work for the latter, at general farm work, for one year from that date, at fifteen dollars per month, with a stipulation that either party should have the right to terminate such contract at any time…

<p>[in chancery.]</p> <p> Mortgage. Foreclosu/re. Homestead. Practice. </p> <p>The proceeding by petition in accordance with the act of 1852, entitled "an act to diminish the expenses of foreclosing mortgages in equity,” (Acts of 1852, No. 12, p. 9,) is as proper in disputable as in undisputable cases of foreclosure.</p> <p>A. agreed with the orator to buy a farm for $1600, and gaye a mortgage of his homestead, signed by himself and wife, to secure the payment of five hundred dollars of the price. When this five hundred dollars should be paid, he was to have a deed of the farm, and was to mortgage it back for the balance of the price. He took possession of the farm, and at the end of the year, being unable to raise to $500, and the orator being unable to give a perfect title to the farm, it was mutually agreed between' them not to go on with the trade, but that the mortgage of the homestead should stand as security for the value of the use of the farm for the past year, which was fixed at two hundred dollars. Held, that this agreement was binding as against the'homestead.</p>

Assuaipsn upon a promissory note signed by the defendant Phaley, as principal, and by the defendant, Button, as surety, dated April 8th, 1857, tor one hundred and fifty-two dollars, payable to John Longee, or order, in thirty days from date, and interest annually. Plea, the general issue and trial by jury at the January term, 1860, Barrett, J., presiding.

Special Assumpsit to recover the amount paid by the plaintiff upon a judgment against him in favor of one Fifield, for dis-training certain property of the latter in payment of an invalid tax against him, laid by the defendant school district, of which the plaintiff was the collector. The facts in the case sufficiently appear in the opinion of the court. The cause was tried upon the plea of the general issue, at the January term, 1861, Peck, J., presiding.

Replevin for a quantity of leather which had been attached as the property of the plaintiff on a writ in a suit against him in favor of the defendant, Holden, returnable to the March Term, 1860, of the Washington County Court.

<p>Petition for the foreclosure of a mortgage. The facts in the case fully appear in the opinion of the court.</p>

Assumpsit. The facts sufficiently appear in the opinion of the court. The cause was tried by the court upon the plea of the general issue, at tho September Term, 1861, Peck, J., presiding. Tho county court rendered judgment for the plaintiff, to which tho defendants excepted.

Trespass on toe freehold for burning the plaintiff’s barn. Plea, the general issue, and trial by jury, at the September Term, 1861, Peck, J., presiding. The plaintiff introduced evidence, which was all of a circumstantial character, tending to prove the issue on his part, and the defendant introduced evidence tending to prove the contrary.

This was an notion for slander. Plea — tile general issue, and trial by jury, at the March Term, 1861, Peck, J., presiding. The plaintiff on trial introduced evidence tending to show tho speaking of the words set forth in the declaration, and that they were spoken in the sense and meaning attributed to them in the declaration, and tending to prove all the facts necessary to entitle the plaintiff to recover on these counts.

Scire Facias against the defendant as bail on mesne process for one Elbridge Wilbur, who was arrested on the 1st of April, 1861, upon a writ in the plaintiff’s favor against him, in an action on the case, returnable before a justice of the peace, upon which writ the defendants, on the day of Wilbur’s arrest, endorsed their names as his bail.

<p>Case to recover damages for the default of S. C. Kendall, constable and collector of taxes of the town of Victory, in his proceedings in selling lot No. 2 in the 1st range in said town of Victory, to the plaintiff. Plea, the general issue, and trial by the court, at the August Term, 1861. The following facts appeared at the trial.</p> <p>On the 3d of October 1835, Peter Burbank deeded to Timothy C. Skeele the lot in question. Skeele deeded to John Beckwith January 10, 1857; Beckwith deeded to Edgar Richardson Febary 27, 1855, and Richardson deeded to the plaintiff, February, 28, 1855.</p> <p>There was no evidence of any title to said lot in Peter Burbank, and the lot was wholly unoccupied and uncultivated. After this lot was thus deeded to the plaintiff, it was set to him in the list of Victory, but it did not appear whether he had ever paid any taxes upon it. In 1858 taxes were assessed upon this lot to the amount of $1.55, and the same not being paid, S. C. Kendall, the constable of Victory for that year, advertised and sold this lot, with other non-resident lands in town, for the taxes and costs.</p> <p>The plaintiff became the purchaser at such constable’s sale, and the whole lot was sold to him for the tax and costs, amounting in all to $1.86, which the plaintiff paid.</p> <p>The lot was not redeemed by any person, and on the 7th day of January, 1860, Kendall, as collector, deeded the lot to the plaintiff.</p> <p>The collector’s proceedings in advertising and selling said lands' were admitted in evidence, but the same were defective and irregular, and the court held the same illegal and void so' that no valid title was conveyed to the plaintiff by the collector’s deed,</p> <p>It was also proved that on the 20th of July, 1830, John W. Chandler, as administrator of James Whitelaw, conveyed said lot to Oliver P. Chandler, who deeded it to Charles Burpee on the 10th of Jannary, 1859. There was no evidence of any title to said lot in Whitelaw, or either of the Chandlers. In the winter of 1850, after the plaintiff received his deed from the collector, the plaintiff went upon the lot and there found Charles Burpee and others cutting timber thereon, and, being forbidden by the plaintiff to cut the timber, Burpee claimed to be the owner of the lot under his deed from Chandler, and declared that he should continue to get off the timber from the lot. There was no other evidence of title or possession of the lot in any person than is above stated.</p> <p>The plaintiff gave evidence tending to prove that the lot was worth from three to four hundred dollars, and claimed to recover the value of the lot. But the court held that the plaintiff was not eutitled to recover the value o.f the lot, but only so much as he paid the collector and the interest thereon, and rendered judgment for the plaintiff accordingly, to which the plaintiff excepted.</p>

Assumpsit. The writ was not served upon the defendant Fogg, and there was no appearance by him. Held: and so instructed the jury, that as it was conceded that the notes were lawfully in Shattuck’s possession, and that as he had them in his possession, with the plaintiff’s endorsement thereon, claiming to have the legal title to them and the right to control them, and as the defendant had no knowledge to the contrary, the defendant…

Trustee Process. The commissioner reported that the trustee was indebted to the defendant for the latter's interest in the settlement of a partnership, which had existed for a year previous, between the defendant and the trustee, and which ther trustee was closing up by collecting the assets and paying the debts; that while the trustee was engaged in closing up the affairs of such partnership, the defendant being indebted to the claimant, agreed with the claimant to transfer…

<p> Sentence of Nullity of Marriage. Jurisdiction. Supreme Court. Common Law. Alimony. </p> <p>The legal system administered by the ecclesiastical courts in England, is apart of the common law of that country.</p> <p>The power to grant divorces, and annul marriages for proper cause, has been an acknowledged head of jurisdiction in those courts from the earliest period.</p> <p>The settlement of this country by colonists from England, under the dominion and authority of that government, had the effect to make the general common law of that country the law of this also, so far as applicable to the new relation and condition of things.</p> <p>Jurisdiction of the subject of granting divorces, and annulling marriages,never having been exercised by the ordinary law courts in England, could not be exercised by the same courts in this country, until jurisdiction was given them by the legislature, and, until then, the jurisdiction was in abeyance, or rested in the legislature.</p> <p>But when jurisdiction of the subject is bestowed upon any tribunal, it is to be exercised and enforced according to the settled principles and practice of the English courts having the jurisdiction there, so far as applicable to the altered condition of things here, Tand npt repugnant to the spirit of our constitution and laws; and it is not a mere statutory jurisdiction, where the power of the court is limited wholly to what the statute in terms authorizes.</p> <p>The settled practice in the English ecclesiastical courts in divorce suits for" incurable impotence is, to require a medical examination to ascertain the truth of the allegation.</p> <p>Impotence being made by our statute a cause for nullifying a marriage, and the legislature having vested the supreme court with jurisdiction of the subject, the court have power to compel the defendant to submit to a medical examination, though the statute makes no provision for it. Whether in such case the court have power to compel the defendant to answer interrogatories on oath, — quaere: its exercise refused in this particular case.</p> <p>It seems, that an application of the above principles would authorize the court to order the payment of temporary alimony, though not provided for by statute.</p>

<p>]jtN CHANCERY.]</p> <p> Railroads. Chancery. Injunction. </p> <p>A railroad corporation, being obliged by tbeir charter to fence their road, for the purpose of constructing a permanent fence along their track through the orator’s meadow land, which was liable to be overflowed, commenced to plant willow trees on each side of their track upon the land used by them for railroad purposes, and within three feet of the orator’s line, with the expectation that they would grow and be Used to attach boards to, thus making a fence, which, in the judgment of the officers of the corporation, Would be more permanent, serviceable and economical, than one constructed in any other manner. It having been proved that such trees, by growing and spreading their roots into, and their branches over, the orator’s land, would be a serious injury thereto, and that there'was no controlling necessity for the construction of a fence in that particular manner, it was held, that the corporation might properly be enjoined, by a court of chancery, from planting such trees.</p>

<p>Indictment for the murder of Martha Wheeler. Plea, not guilty, and trial by jury, at the September Term, 1860, Poland, J., presiding.</p> <p>The respondent, Susan Center, was step-grandmother of Martha Wheeler, aud the other respondent was her son, and half* brother of the mother of Martha Wheeler.</p> <p>The respondents resided with Dearborn Center, husband of Susan Center, and fathet of the other respondent, in Cabot, Martha Wheeler was nearly fifteen years old, and a very large, healthy girl, and her parents lived in Albany, in Orleans county. In April, 1860, Martha Wheeler came to Cabot to live in the family of a Mr. Hoyt, as a hired girl, Hoyt being a farmer, and living near the respondents. From the time Martha Wheeler came to Hoyt’s she was very friendly with the respondents, often going there, and usually spending some portion of every sabbath at their house ; but this was not approved by her mistress, Mrs. Hoyt, and she requested Martha not to visit the respondents on Sundays. On Sunday, the 1st day of July, 1860, near evening, Martha Wheeler went to the house where the respondents lived, and did not return to Hoyt’s until late in the evening, the pre-' cise time did not appear. The next morning she assisted in the work, and then went to Cabot village to see a caravan, which was exhibited there that day, and returned to Hoyt’s at night, and assisted in milking.</p> <p>In going to the caravan she rode with Mr. Hoyt’s family as far as her grandmother’s, where she stopped and rested with them. There Was some evidence that on that day she exhibited appearances of approaching illness, that she complained of being tired, and did not appear to be interested in the exhibition, but there was no evidence that she made any complaint, of illness, oí pain, or injury.</p> <p>On Tuesday morning she arose, and went about her work, hut soon complained of head-ache and dizziness, when Mr's. Hoyt had her go to bed, and gave her medicine for a cold, which she supposed to be the difficulty with her. She continued to grow worse until Saturday of that week, when Dr. Goodwin, of Cabot, was called to visit her, who pronounced her disease to be Typhoid fever, and for which he treated her. She continued, however, to grow worse, and on the evening of the following Friday she died. It appeared that during her sickness, she had bloody discharges from her private parts, quite offensive in smell, that she appeared stiff in the region of her hips, and unable to move her limbs, and had great difficulty in voiding urine.</p> <p>The body of the girl after her decease was taken to Albany, and there buried, and on the 6th of August following, it was disinterred and examined, to ascertain the cause of her death. Dr. M. P. Wallace, of Cabot, one of the physicians present at the examination, was called as a witness, and testified that M the private parts of the girl wete swelled externally. On opening those parts we discovered what we called a wound, and examined it. The swelling was on the right side of the labia, the inner lip was swollen so that it protruded; the wound was about opposite the hymen, l-4th to 1-2 inch one side of vagina* or entrance of the womb, where it commenced. I probed the wound ; the probe passed half its length, .at least three inches in depth. Then I dissected the parts, removed the Pubic bone so we could see the womb. The wound kept on the outside of the passage to the womb, in an oblique direction. It was a simple flesh wound, hit no blood vessel. We came to the unanimous conclusion, that the wound must have been produced by violence, with some blunt instrument to us unknown. We examined the stomach, bowels, and liver, and all appeared healthy, and we found no other cause of her death, except this wound. The wound was below the urethra, and to the right. The opening of the wound was about the same size as that of the urethra. The bottom or base of the wound appeared to be larger than the entrance. It appeared as if the instrument had been worked up and down, or inserted twice, and not following the same track both times. The Hymen was lacerated, and broken ; the injury appeared to be recently done., as shreds of it remained very unyielding and tough. As we found the hymen* there was no obstruction to an entry, but before it was ruptured* we were satisfied no man could have entered in the natural way. All by which we could tell whether she had ever had connection, Was the rupture of the hymen. There was no appearance of pregnancy, or that there ever had been. We concluded it was a wound, and not an abscess, a puncture, made with an instrument, and that if left, wholly unattended, it would be likely to produce death.”</p> <p>It was claimed on the part of the prosecution that the respondent, Harrison Center, in the evening of that 1st of July, aided by his mother, attempted a forcible violation of the person of Martha Wheeler, but that her natural condition was such that he was unable to effect a penetration, and that for the purpose of enabling him to accomplish his purpose, he, with the aid of his mother, attempted to make a forcible penetration of the hymen wjtli some instrument, but that by reason of Martha’s resistance and struggles, the wound or incision found on her person was made, and that the same caused her death.</p> <p>No direct evidence was introduced tending to prove that the wound was given by the respondents, or either of them, or the purpose of it, but a great variety of circumstances, in the acts and declarations of each of the respondents, were proved, which were claimed to tend towards proving them guilty as claimed.</p> <p>The government in support of the prosecution’relied on certain declarations of Martha Wheeler made, during her sickness, to Ann Lyford, and Mrs. Wheeler, her mother. Ann Lyford testified, that she went to Mr. Hoyt’s, on Friday, July 6th, to nurse Martha, and took care of her till Monday following. That on Friday and Saturday Martha said she knew she should die, and on Sunday said she knew she was doonied to die ; that on Saturday she conversed with Martha about the cause of her sickness, and asked her why she was so sore and stiff, and Martha replied, that she supposed she bad taken cold, The prosecutor then proposed to prove by the same witness, that on the same Saturday, she pressed the same inquiry upon Martha, and that Martha said in reply, “ that if she had minded Mrs. Hoyt and staid at home, she should not have been sick as she was now.” This statement was objected to by the respondent’s counsel, as not admissible, because not made under such expectations of impending death by Martha, as to make her declarations admissible, and also because the declaration itself was of so general and vague a character. But the court overruled the objection and admitted the evidence, to which the respondents excepted. The witness then stated the declaration of Martha to her, according to the offer, and also added, that Martha said further, “that if she lived to get well she would never go there again.” It appeared from all the evidence in the case, that at the time of these declarations, Martha was not considered by her physicians and others to be dangerously sick.</p> <p>Mrs. Wheeler, the mother of Martha, testified as follows : eí I first saw Martha, after her sickness, on Thursday eveping, July 12th, and remained with her till she died, about twenty-nine hours. Martha understood she could not live, and gave me some directions about the distribution of some of her things to the other children. On Friday evening before she died, she appeared to be in great distress. I asked her where the pain was ? she could not talk very well; she put my hand and her hand on her private parts, and began to cry. I then examined, saw she was badly swelled, very bad. I saw she was badly injured, and examined to see, tried to examine, but it hurt her so I could not. I told her my stepmother was the cause of this. She looked up in my face and said, ‘ Harry — Harry.’ That was all she said that I could understand. Harrison Center goes by the name of Harry.” The above reply of Martha to her mother was also objected to for the same reasons, as her declarations to Ann Lyford, but the same was allowed to go to the jury, to which the respondents excepted.</p> <p>John H. Damon testified, “ I was the officer who arrested the respondents, and committed them after they were bound over for trial by a magistrate. After they were bound over, Mrs. Center wanted to go home to make some arrangements about her affairs, and I carried her to her house. I sat in the kitchen ; Mrs. Center and her husband were in another room, arranging about their things. There was a small entry between the rooms, but the doors were open. Mr, Center spoke, and said, ‘ It is too bad l too bad!’ Mrs. Center replied, ‘Who is to blame V Mr. Center said, ‘ I don’t know,’ Mrs. Center safd, ‘ Captain ! Captain ! if it had not been for you, this would never have been known !’ Mr. Center replied, that he knew he talked a great deal. There were no persons in the room except Mr. and Mrs. Center.” This evidence was objected to by the respondents, as being confidential conversation between husband and wife, but the same was admitted, to which the defendants excepted.</p> <p>The respondents’ counsel claimed that where dying declarations are admitted as evidence, (there being proof tending to show that the person making them is under the expectation of immediate death,) still it wras ultimately a question for the jury to pass upon, whether sucft expectation of death existed or not, and in relation to the declarations of Martha Wheeler, above recited, the court instructed the jury, that in ordér to make such declarations admissible as evidence, it must be satisfactorily established, that Martha Wheeler, at the time of making them, had no expectation that she should recover, but that she must very soon die, and that if the jury thought from the evidence that she did not so expect and believe, then those declarations should be laid out of the case, and not weighed at all. No exceptions were taken to the charge upon this evidence, but the respondent’s counsel claimed, that the court should have excluded it from the consideration of the jury.</p> <p>The respondents excepted to the following portion of the charge to the jury :</p> <p>The court told the jury that if they found, that Martha con- ■ sented to have sexual connection with the respondent, Harrison Center, but in consequence of her condition he was unable to effect a penetration, and she consented that the respondents might use artificial means to perforate the hymen, and they did so, and thereby gave her a wound that caused her death, though not intending it, still it would be manslaughter, if they were guilty of such carelessness and negligence, either in the manner of doing it, or the instrument used for that purpose, as endangered the life or personal safety of the girl.</p> <p>The jury found both defendants guilty of manslaughter.</p>

<p>Replevin for one hundred and thirty-five sheep, alleged in the writ to belong to the plaintiff, who resided in Montpelier, in Washington county, and to have been taken and attached by the defendant Page, a resident of Washington county, and by the defendant Fifield, a resident of Orange county. The writ was made returnable to the Washington County Court. From the officer’s return upon the writ, it appeared that he found and replevied the sheep in Orange county, at the residence of the defendant Fifield.</p> <p>The defendants filed a motion to dismiss the action, on the ground that, as it appeared from the writ and officer’s return, that the sheep were detained in Orange county when repleyied, and that therefore the writ should have been made returnable to. the Orange County Court.</p> <p>The county court sustained the motion, and dismissed the action.</p> <p>The defendants thereupon moved for a judgment for a return oí the property replevied, and also for damages, alleging that one Cutler was the owner of the sheep replevied, and that they had been attached by the defendant Page upon a writ in favor of the defendant Fifield against Cutler ; that Page, after attaching them, placed them in Fifield’s hands for safe keeping, where they remained until replevied by the plaintiff ; that Fifield had recovered judgment in his suit against Cutler, and had taken out execution thereon, and placed it in Page’s hands for collection, and that the execution had been returned unsatisfied and was yet unpaid.</p> <p>To this motion the plaintiff answered that Cutler never owned the sheep, but that they belonged to the plaintiff.</p> <p>On the hearing of the motion for return and for damages, the defendants claimed, and offered to show, that since the sheep were replevied in this action, the plaintiff had sheared the sheep, and sold the wool, and received the pay for the same, and claimed hat the value of the wool so sold should be included in the damages to be by them recovered, and that they were entitled to a judgment for a return of the property without introducing any evidence of ownership or right of possession in them.</p> <p>The plaintiff objected to the evidence offered by the defendants as to the shearing of the sheep and sale of the wool, and the court rejected it, to which the defendants excepted.</p> <p>The plaintiff claimed,</p> <p>1st. That there could be no judgment for return of the property or damages in a case like this, where the action is dismissed on the defendants’ motion.</p> <p>2nd. That if any judgment for return or damages could be rendered, it could only be rendered upon evidence introduced by the defendants, showing the right of property and possession in them, and that the burden of proof of such right was on the defendants.</p> <p>3rd, That if prima facie the defendants were entitled to such judgment, the plaintiff had a right to show by evidence that the right of property and possession at the time the property was replevied, was and still continued in the plaintiff, and not in the defendants, and thereby prevent such judgment; and the plaintiff offered evidence to prove this fact.</p> <p>To the introduction of this evidence the defendants objected, and the court excluded it, to which the plaintiff excepted. The ■court thereupon rendered judgment, awarding a return of the property, with costs against the plaintiff, and refused to render judgment for damages, to which both parties excepted.</p>

<p> Evidence. Experts. Insanity. Will. Guardian. Probate Court. </p> <p>It seems that physicians in general practice, and nurses accustomed to attend the sick, are experts, in respect to the mental capacity of sick persons. Alois, J.</p> <p>'Therefore, upon the trial of the question of the insanity of a testatrix, it seems it would be proper to describe to such a physician or nurse the symptoms and condition of the testatrix, when the will was executed, as disclosed by testimony, and to ask the witness what measure of mental capacity such a person would, in his opinion, possess, at so short an interval before death as that which elapsed between the execution of the will and the death of the testatrix. Alois, J. '</p> <p>But it seems that a physician who for more than thirty years has devoted his • attention almost exclusively to the treatment of insane persons, would not be an expert whose testimony in reply to such an inquiry would be competent, because the inquiry relates to the mental capacity of a person not previously insane, but in an enfeebled physical condition of long duration, and just about to die. Aldis, J.</p> <p>In a trial involving the question of the sanity of a person, a medical witness ' who has heard the testimony, may give his opinion as to such person’s sanity or insanity, as indicated by any given state of facts, so long as such facts are warranted by the evidence, and are not conflicting.</p> <p>But where facts on one side conflict with facts on the other, they ought not to be ineprporated in one question, but the attention of the witness should be called to their opposing tendencies, and if his skill or knowledge can furnish the explanation which harmonizes them, he is at liberty to state it.</p> <p>Therefore, in a trial involving the question of the sanity of a testatrix, the testimony on the opposite sides as to her sanity being very conflicting, the following question, put to an expert on the subject of insanity, was held to be improper, as involving so many facts that the witness would be obliged, in order to answer it, to settle in his own mind other disputed facts disclosed in the testimony; in other words, to assume the province of the jury. The question was as follows: “If the facts stated by the witnesses on the part of the defence touching the physical condition of the testatrix and her symptoms and conduct, are true, and the testimony of the 'witnesses on the part of the plaintiffs, relating to her conduct, is also true, what, in your opinion, was the mental condition of the testatrix in respect to sanity or insanity, at the time of the execution of the will ?”</p> <p>It is not proper to inquire of a medical expert whether the person in question question possessed sufficient mental capacity to transact business, or to make a will. The question should be so framed as to require the witness to state the degree of such person’s intelligence or incapacity, in the best way he can.</p> <p>A witness having been examined in respect to the sanity of the testatrix, it was held competent for the other side to show, as affecting the degree of credit to be given the witness, that a year previous to the trial, the witness had a severe disease of the brain, and that it had affected his mind.</p> <p>When a witness upon cross-examination is inquired of in respect to a new subject, not connected with any matter for which his evidence was offered by the party introducing him, the cross-examining party can not contradict the reply of the witness to such inquiry.</p> <p>Upon the question of the validity of a will, as relating to the sanity of the testatrix, or undue influence upon her, it is competent to show that she had brothers and sisters who were poor, for whom she cherished feelings of affection, and of whose poverty she was aware, and yet made no provision for them in her will; and also that the sole legatee, her brother, was known to her to be intemperate.</p> <p>Held, also, that it was competent to show that for four years before the execution of the will, during a great portion of every year, her conduct, habits, and conversation were strange, unnatural, and different from what they were during the previous years of her life.</p> <p>The false statements of the sole legatee, as to the execution and contents of the will, held admissible, as having some tendency to show undue influence by him upon the testatrix.</p> <p>The testatrix, shortly before her death, made application to have her guardian removed. The justices of the peace appointed to examine into the necessity of a guardian, made their examination, but did not make their report till after the death of the testatrix. Upon the filing of their report, the probate court decreed that the guardian be discharged. Seld, that such report and decree were void, and not admissible in evidence.</p>

<p> Process. Service. False Return. Officer. Return. </p> <p>The service of process by an officer of this state by leaving a copy thereof in another state, is invalid; and notice so given may he entirely disregarded.</p> <p>If an officer’s return of the service of process is headed with the name of the state and a particular county, the various acts of service which his return sets forth, unless specifically mentioned as performed elsewhere, will be construed as alleged to have been performed in the county named at the head of the return.</p> <p>Therefore, where a return, headed wiih the name of this state and one of its counties, stated that a copy of a petition of foreclosure was left with D., one of the defendants in the process, and no place was specified where such process was left with D., and in fact it was delivered to him'by the defendant, a Vermont sheriff, in the state of New Hampshire, and D. did not appear in the cause, and a decree of foreclosure was taken against him, without any continuance of the cause, and a short time fixed for redemption, upon the expiration of which without payment, the tenant of D., then in possession of the premises, was ousted by virtue of the decree; held, that D. could maintain an action against the sheriff for making a false return.</p>

Audita Querela to set aside the judgment of a justice of the peace in favor of the defendant against the’ plaintiff, on the ground that an appeal from such judgment was improperly denied the plaintiff. Plea, not guilty, and trial by the court, at the March T«rm, 1862, in Washington coímty, Kellogg, J., presiding. The actioh in which the judgment, sought to be vacated, was rendered, was trespass in favor of the defendant against the plaintiff, for taking a trunk and fiddle.

<p>Trover for “ one iron and steel splitting machine.” Plea, not guilty, with notice of special matter in defence, and trial by jury at the March Term, 1862, Kellogg, J., presiding.</p> <p>On trial, both parties claimed title to the property mentioned in the declaration under one V. R. Blush, — the plaintiff claiming under a sale thereof made by Blush to him for a valuable consideration, and the defendant claiming by a purchase of it at an auction sale of property sold on an execution in favor of one Cross against Blush. It was conceded that the machine, after the sale thereof by Blush to the plaintiff, remained in Blush’s possession, in his tannery at Waterbury, as it did before the sale, up to the time when it was taken and sold by the officer ns the property of Blush on the execution. The plaintiff claimed that the machine, when owned by Blush, was exempt from attachment as his property, and that, consequently, the sale of it by Blush to the plaintiff was valid as against the creditors of Blush without any change of possession.</p> <p>The testimony introduced in relation to this splitting machine, tended to show that it was used for shaving or splitting leather, and was operated by hand, steam or water, and had been used by Blush in his tannery in each of these three ways ; that it cost $250 when new, and weighed from six to nine hundred pounds; that it had two knives and two rollers, and was operated by turning a crank, and the leather passed between the knives and the rollers, and that when it was used or operated by hand, it took two men to work it; that it was not fastened permanently to the building, but could be moved about wherever it was wanted ; that it was usual to fasten it to the floor by boards or cleats when in use to prevent its sliding, but not to fasten it to the floor or building with bolts, or permanently; that such machines have taken the place of the old-fashioned way of shaving leather by hand, and have been in use for fifty years or more ; and that Blush, at the time when he sold this machine to the plaintiff, was a tanner and currier, and followed no other trade or business.</p> <p>The defendant admitted that he took the machine and held it before and at the time of the commencement of this suit, claiming title to it as aforesaid, and that he had refused to deliver it to the plaintiff, although the plaintiff had demanded the same of him while he thus held it.</p> <p>On these facts in relation to the machine, the court ruled, and So instructed the jury, that it was not exempt by law from attachment as the property of Blush at the time when it was sold by him to the plaintiff. To this ruling and instruction the plaintiff excepted.</p>

<p>Trustee Process. The cause was referred to a commissioner, as to the liability of the trustee, who reported the following facts :</p> <p>The defendant Lee, being largely in debt and insolvent, shortly previous to the attachment hereinafter mentioned, claimed that he had lost $2500 in bank hills, and publicly offered a reward for finding the same, but there was great reason to doubt whether any such loss occurred, and to believe that the claim and advertisement were merely a pretence to enable Lee to effect a compromise with his creditors. The trustee Bacon, who was a deputy sheriff, attached, upon a writ against Lee placed in his hands for service, six hundred dollars in hank hills, under the following circumstances :</p> <p>These bills and a bag of specie were in a bureau drawer in Lee’s house, which drawer was locked. This drawer was unlocked by Lee or his wife, at Bacon’s request, in the presence of the three. Lee and his wife both knew for what purpose Bacon was there. Each of these three persons scrambled for the contents of the drawer. Lee grasped the hag of specie. His wife first got possession of the roll of bank hills, hut Bacon seized and took them from her, and kept them until the suit was settled, as mentioned below. Shortly afterwards the suit on which this attachment was made was settled by Lee, whereupon Bacon refused to surrender to, Lee the bank bills which he had attached, until Lee signed a paper acknowledging that Bacon had found and paid to him six hundred dollars of the money which he had lost and advertised a reward for, and that he had paid Bacon the proper proportion of the reward he had offered for the discovery of all the money. Bacon retained fifty dollars of the money, which he claimed to, hold as a reasonable share of the reward for finding the six hundred dollars in bank bills ; but in fact he found no money of Lee’s, except in the manner above detailed. Lee was induced to sign the paper above described, not only by the fact that Bacon was an officer of the law, and held the six hundred dollars by attachment, but also by the fact that another officer with a writ against Lee had come into the house, and was clamoring at the door for admittance, while Bacon held the money and was refusing to surrender it until Lee should sign such paper. Lee was desirous to conceal from the public the fact that he had this money, and he and Bacon so understood when Lee executed the above mentioned paper to Bacon. Bacon claimed to have a right to retain, and did retain up to the hearing before the commissioner, the fifty dollars which he reserved out of the six hundred dollars he attached, by virtue of the paper executed to him by Lee as above mentioned. Lee, up to the hearing before the commissioner, never made any claim on Bacon for the fifty dollars retained by him, and had no interest in it, except that, if the plaintiff should not recover it of Bacon, Lee was to pay the plaintiff one-quarter of that amount in cash.</p> <p>Upon these facts the county court, at the March Term, 1862, in Washington county, Kellogg, J-, presiding, adjudged the trustee chargeable for fifty dollars and the interest thereon from the time of the execution of the paper above described from Lee to Bacon, to which the trustee excepted.</p>

<p>Case for fraud in cheating in.weighing a quantity of butter sold by the plaáptm to the defendant.</p> <p>The defendant pleaded the general issue, with notice of special matter in defence, and the case was tried by jury at the June Term, 1861, in Orleans county, Poland, Ch. J., presiding.</p> <p>The plaintiff’s evidence tended to prove that about the middle of October, 1858, he sold to the defendant eleven tubs of butter at the price of eighteen and one-half cents per pound, to be delivered by the plaintiff in Barton, the defendant paying the plaintiff $33 towards the same before the delivery ; that'about the 1st of November, the plaintiff being away from home, the defendant called for the butter, and the same was carried by the plaintiff’s father to the appointed place of delivery, where it was weighed by the defendant, and the weight marked by the defendant on the several tubs, and a list of the weights in figures on a slip of paper given-to the plaintiff’s father.</p> <p>The plaintiff gave evidence tending to prove that the defendant when he weighed the tubs full of butter placed his foot under the edge of the platform of the scales, so as tb make the weight less than the true weight, and, when the empty tubs were weighed, placed his foot upon the edge of the scale, so as to make the tub appear to weigh more than the true weight, and that by these means, the weight of the butter as marked oa the tubs, and given to the plaintiff’s father, Was less than the true weight of the butter, from two to three pounds upon each tub of the butter, — and that this was done designing to cheat and defraud the plaintiff; that immediately after the delivery of the plaintiff’s butter, the defendant went to Boston with that and butter purchased'by him of various other persons, and there sold the same, but did not return to Barton as was expected, and in the early part of December, information was' received by the plaintiff that the defendant was about to proceed to California, without returning to Barton, or paying for the butter he had purchased on credit of the plaintiff and others ; that the plaintiff thereupon, ;for himself and two other persons, of whom the defendant had purchased butter on credit, went in pursuit of the defendant, first to New York city, from there to Boston, arid finally to Lebanon, New Hampshire, where he found the defendant, and called on him for payment for the balance due him for his butter, and the two other men for whom he was acting; that the defendant replied that he had no money, and could not pay'.</p> <p>In relation to what took place between the plaintiff and the defendant on this occasion, the plaintiff testified as follows :</p> <p>“ The defendant felt bad because he could not pay me. I said if he could not pay me he must give me his note, as I had nothing t‘o show. He asked how much it was. I told him I did not know, but supposed he could tell. He said he could not, that his papers were in his valise or trunk. I said I supposed it was about sixty dollars j he thought it was fifty-five or sixty dollars. I said I had been at considerable trouble hunting after lxim, and would call it sixty dollars. He assented, and gave me his note for‘sixty dollars, and I came home. I had lost the paper that my father gave me, and did not know what the figures were. There was not a word said between ns about fraud in the weight, and no allusion to it whatever.”</p> <p>The defendant’s evidence tended to prove that the plaintiff’s butter was fairly and truly weighed by the defendant, and n® such cheat practised in weighing as the plaintiff claimed ; that the true weight was marked on the tubs, and that the just balance due to the plaintiff from the defendant for the butter, after payment of the $33, was $55.25.</p> <p>In relation to the transaction between the plaintiff and the defendant, at Lebanon, the defendant testified as follows:</p> <p>“Last of December, or 1st of January, the plaintiff came to Lebanon, New Hampshire, where I was stopping, said he wanted to settle this butter matter, — wanted the money for his butter. I told him I had not got it. Then he said he wanted my note. We had considerable talk, though the plaintiff was in a hurry. We talked about his following me round. I asked what his object was. He said he wanted to catch me. I asked what he expected to do when he did. He said he did not know, — had made a fool of himself, and was sorry. I asked the plaintiff how much there was. He said he had not got it. I showed him from a memorandum book how much it was. He seemed satisfied. I then brought up the matter of the cheat; said I had understood he had threatened to prosecute me, and I wanted to have it settled, so I could come back to Barton and not have him jumping on to me. I said I would give him my note for ©60 ta settle it all up. He said that would be satisfactory, and I gave him my note for $60, and he left for the cars. The plaintiff said he had been to a good deal of expense, and had been to New York and Boston. The plaintiff asked if my father or brother would not sign the note with me. I told him I should not ask them to do so, for I owed them borrowed money. He said he should go and ask them. I said he could do so, and they could do as they pleased about it.”</p> <p>The defendant also introduced the testimony of several witnesses of admissions by the plaintiff that the note was given to cover and settle not only for the balance due for the butter, but also for his claim for being cheated by the defendant in the weight.</p> <p>The- plaintiff in his rebutting evidence, gave evidence tending to prove that the defendant was present at the trial of this cause before the justice, and testified, that at the interview between him and the plaintiff at Lebanon, the plaintiff set up no claim that there h.ad been any fraud in the weight of the butter, and that nothing was there said about it, and that Mr. Cooper, the defendant’s counsel, in the presence of the defendant, put the defence wholly upon the ground that there was no fraud in the weight, and relied strongly upon the fact that when the plaintiff found the defendant at Lebanon, and took his note, he made no claim of the kind, as evidence that there was no fraud. The defendant’s counsel objected to this evidence, so far as it went to show the grounds of defence and argument of Mr. Cooper on behalf of the defendant, but the court admitted the same, to which the defendant excepted.</p> <p>On the defendant’s cross-examination, he was enquired of by the plaintiff’s counsel when, and to whom, and for how much he sold his butter in market, how much money he received, how he expended it, and as to his whereabouts from the time he went to Boston with the butter, till he was found by the plaintiff at Lebanon as above stated. The defendant’s counsel objected to these inquiries, but they were allowed to' be put, and answered by the defendant, to which the defendant excepted.</p> <p>It was conceded by the plaintiff that before he met the defendant at Lebanon, he had had an intimation that the defendant had cheated him in the weight of the butter, but that he did not know the extent of it, nor the manner in which it was done.</p> <p>The defendant’s evidence tended to prove that prior to the interview at Lebanon, he had received.from his family in Barton information that the plaintiff claimed he had cheated in the weight of the butter, and was threatening to prosecute him therefor.</p> <p>It was conceded, also, that the 'note the defendant gave the plaintiff had never been paid, and that it was large enough to cover the full value ef the butter at its true weight.</p> <p>The defendant’s counsel claimed and requested the court to instruct the jury, that if the defendant was thus guilty of cheating in the weight, still if the note he gave the plaintiff was large enough to cover the full amount of the butter received by the defendant from the plaintiff, at the price per pound agreed, it operated as full payment and satisfaction for all the butter, and that the plaintiff therefore was not defrauded, and could not maintain this suit, and that this would be so, whether the matter of the fraud was alluded to at the time of the settlement, or not, and that even if it was as stated by the plaintiff, it would preclude a recovery.</p> <p>The defendant also requested the court to charge the jury, “ that if they found that the reason the plaintiff asked so large a note, and the reason the defendant gave so large a note, was the alleged fraud, although both avoided any discussion of the disagreeable subject, then no right of action accrued.”</p> <p>The court declined so to charge, but did charge the jury that if the plaintiff satisfied them that the defendant purposely cheated in weighing the butter, still if the plaintiff’s claim for such fraud was mutually settled and adjusted by the parties, and included in said note, it would be a defence to the action, but that if the note was given merely in settlement of the balance due t’o the plaintiff for his butter, at its reported weight by the defendant, and with no reference whatever to the plaintiff’s having been cheated by the defendant in the weight, then the plaintiff’s right of action for such fraud was not thereby barred, even though the note given was large enough to cover the whole of the butter received by the defendant, at the contract price ; that if the facts in reference to the settlement and giving of the note were just as stated by the plaintiff, they would not amount to a settlement of the fraud in the weight, if such existed.</p> <p>The defendant excepted to tie refusal to charge as requested, and to the charge as given on this point.</p> <p>The defendant also claii led that, if there was a fraud in the weight and it was not settled, that the plaintiff could only recover for the deficiency in the weight of the butter caused by such cheat, at its value, or the contract price per pound. But the court charged that if the defendant purposely cheated in the weight, with design to defraud the plaintiff, the jury might give such exemplary damages as they should, under all the circumstances, consider just between the parties.</p> <p>The defendant excepted to this direction also.</p> <p>The jury gave a verdict for the plaintiff.</p>

<p>Case under the 22nd section of the act of 1852, entitled “ an act to prevent traffic in intoxicating liquors fur the purpose of drinking,” Acts of 1852, p. 28. The plaintiff claimed to recover for the amount expended for the support, in the jail in Chelsea, of one Lewis, who was committed to that jail by a justice of the peace, under the section above mentioned, as having been found intoxicated in the town of Vershire, and, under the warrant of the justice of the peace, confined there until he disclosed where and of whom he procured the liquor upon which he became intoxicate d.</p> <p>The declaration set forth the record of the proceedings before the justice of the peace in respect to the apprehension and commitment of Lewis for being found intoxicated in Yershire, and alleged that Lewis, refusing to disclose where he obtained the liquor, was confined in the jail in Chelsea from the 8th of April, 1858, till the 14th of July, 1858, and that op the day of the commitment of Lewis the keeper of the jail notified the overseer of the poor of Chelsea that Lewis was in that jail, and was in need of relief, whereupon the overseer provided for and supported him in such jail during the whole period of his confinement .</p> <p>To this declaration the defendant pleaded the general issue, and the cause was tried by the court at the June Term, 1860, in Orange county, Barrett, J., presiding.</p> <p>The county court rendered judgment for the plaintiff for the amount.expended by the oyerseer of the poor of Chelsea," for Lewis’ support in jail. After the trial and.before judgment the defendant interposed a motion in arrest of judgment, on the ground of the insufficiency of the declaration, but the court overruled the motion, to-which the defendant excepted.</p>

<p>[in chancery.]</p> <p> Appeal. Chancery. Costs. Practice. </p> <p>An appeal from the decree of a chancellor to the supreme court vacates the decree, both as to the merits of the case, and the costs.</p> <p>When a cause is remanded from the supreme court to the chancellor, it is the latter’s duty to conform his decree to the judgment of the supreme court, so far as they have adjudicated the cause; but if no direction has been given ^ as to an incident of the decree, like costs, it is his duty to determine it.</p> <p>And if in his judgment justice requires that some further proceeding should be allowed in the cause, it is within the chancellor’s power to allow it to be had.</p>

<p> Petition for New Trial. Practice. Judgment. State. State’s Attorney. Cumulative Evidence. </p> <p>A judgment is considered as rendered on the last day of the term of the court.</p> <p>Under the statute requiring a petition for a new trial to be brought within two years next afrer the. vendition of the original judgment, such time is to be computed from the last day of the tetm at which the judgment is rendered.</p> <p>In petitions for new trial where tito state is the petitionee, service of the petition should he made upon the state’s attorney of the county in which the petition is pending.</p> <p>It seems, that if the petition be served upon the attorney who was counsel for the state in the original action, the service will bo sufficient.</p> <p>In a petition for a new trial, it is sufficient if the petition be sworn to by the party really in interest as petitioner, though not the nominal petitioner.</p> <p>In a petition for a new trial on the ground of newly discovered evidence, it is not necessary that the petition be accompanied by a certified statement of the former trial given by the presiding judge, or by a recital of the evidence given at such trial.</p> <p>The petition snould sot forth the history of the former trial fully enough to show tlte applicability and "effect of the newly discovered evidence, ami a statement of the newly discovered evidence itself, to which must be attached the affidavit of the party that the evidence is newly discovered, and also the affidavits of the new witnesses, as to what they will testify to. .</p> <p>Cumulative evidence is additional evidence of the same kind to the same point.</p>

Case founded upon chapter 92, section 10, of the Compiled Statutes, (General Statutes sec. 10, p. 618,) relating to pounds, &c. The declaration contained two counts.

Trustee Process. The commissioner found the following facts: On the 28th of March, 1861, the trustee for a sufficient consideration executed and delivered to the defendant two promissory notes of that date, one for seventeen hunnred’dollars, payable on or before March 1st, 1862, and the other for eight hundred dollars, payable on or before September 1st, 1862, both payable to the principal debtor or bearer, which notes had not been paid.

Book Account. The auditor reported that the plaintiff claimed to recover one hundred dollars, and interest, which the auditor found he delivered to the defendant, in cash, to carry and deliver to one Sibley, and which the defendant received ior that purpose and agreed to deliver to Sibley, but which he neglected to do.

Bill in Chancery. The bill was dated and sworn to by the orator on the 22nd of September, 1858, and was filed October 4th, 1858, and sot forth in substance, that on the 23rd of June, 1856, Morton Cole, of Burlington, requested the orator, then a resident of New York city, but at that time transiently in Burlington, to sign with him, as his surety, a promissory note for $1500, of that date, and payable at the Farmers and Mechanics’ Bank, of Burlington, four months after date,…

Case against the town of Burlington for the neglect of its constable, Isaac Sherwood,' to have certain personal property attached by him on a writ in favor of the plaintiff against one Hawley, forthcoming to respond the judgment on said writ, and the execution issued thereon.

Assumpsit upon a guaranty. The cause was referred, and the referee reported the following facts : The plaintiff’s claim was for services and disbursements as attorney and counsellor, in the defence of a suit in favor of one Sheldon against Daniel B. Griswold, brother of the defendant.

• Petition for the foreclosure of a mortgage executed September 26th, 1854, by the defendant Converse to the petitioner-, to secure the payment of a promissory note for one thousand dollars, dated February 26th, 1851, signed by Charles P» Allen, James H. Allen and the defendant Converse, and payable to the petitioner or order, in one year from its date, with interest.

Assumpsit upon four promissory notes signed by the defend*ant, dated May 25th, 1851, and payable four, five, six and seven months after date, respectively, to the order of E. W. Howes & Co„ and by them endorsed to the plaintiff confessedly for the sole purpose of collection for the benefit ol the payees. The action was commenced September 8th, 1859.

Each of these cases was trover upon an officer’s receipt. In the case of Soule v. Austins, the facts were as follows: The plaintiff, as deputy sheriff, having in his hands for service a writ against the defendants, on the 22nd of April, 1861, went to their residence'in Milton, and informed them, that he had such a writ, and must attach personal property thereon.

Assumpsit for the breach by the defendants of their contract of employment, of the plaintiff to teach their school. The declaration contained no averment that the plaintiff had procured any certificate of qualification to teach, as required by section 12, chap. 20, Comp. Stat. The defendant demurred to the declaration. The county court at the April term, 1862, Aldis, J., presiding, overruled the demurrer, to which the defendant excepted,

Assumpsit upon a-joint and several |promissory note, dated January 27th, 1860, for two hundred dollars, signed by the defendants, and payable in six months after date at No. 40, Courtland street, New York, with interest. The declaration also contained the usual general counts in assumpsit. The defendants pleaded the general issue, and the cause was tried by jury at the April term, 1861, Poland, Ch. J., presiding.

Trespass guare clausum fregit. The defendant pleaded tbe general issue, with notice that the defendant’s son owned a right of way over the plaintiff’s close to and from certain land belonging to the defendant’s son, for the purpose of entering thereon to cut hay and to carry off the same, and that the defendant committed the alleged trespass in the legal and proper use of such right of way in the employment and business of his son in connection with such land.

Assumpsit to recover certain unpaid assessments upon the defendant’s subscription for twenty shares of the capital stock of the plaintiff’s corporation, then known by the name of the Champlain and Connecticut River Railroad Company.

Bill in Chancery. The facts in the ease sufficiently appear from the opinion of the court. The chancellor, Kellogg, J., dismissed the bill with costs to the defendant, from which decree the orator appealed.

<p>The facts in this case are stated in the opinion of the court.</p>

Prosecution for the unlawful selling, furnishing and giving •away of intoxicating liquor, originally brought before a justice of the peace, from whose judgment the respondent appealed to the county court. The facts in the case are sufficiently stated in the opinioa of the court, '

<p> Practice. Intoxicating Liquor. Supreme Court. </p> <p>Where, in a prosecution for the illegal saie of intoxicating liquor, exceptions are taken by the respondent to the ruling of the county court, if the prosecuting attorney desires to have the sentence more severe because of the fact that the respondent has been previously convicted of a similar offence, he must prove such fact in the eounty court before the cause passes to the supreme court. Such proof can not be received in the supreme court, even for the purpose of affecting the sentence which such court are about to render, after having overruled the exceptions.</p>

Debt on a recognizance, brought into the county court by appeal from the judgment of a justice of the peace. The facts are stated in the opinion of the court. Upon the entry of the appeal in the county court, the defendant demurred specially on the ground that the court had no appellate jurisdiction. The county court at the March Term, 1862, Peck, J., presiding, pro forma overruled the demurrer, and rendered judgment for the plaintiff, to which the defendant excepted.

Case for the breach of a warranty in the sale of a patent right for “ S. P. Francisco’s celebrated Atmospheric Butter Churn,” and also for false representations in making such sale.

Complaint for selling intoxicating liquor contrary to law. Trial by jury at the December Term, 1861, Pierpoint, J., presiding. It was admitted that the respondent, on or about the first day of April, 1860, was duly appointed agent to sell intoxicating liquor in the town of Ripton, and was acting as such agent at the time of the sales complained of and proved on this trial.

Trover for the alleged wrongful conversion by the defendant of a certain mortgage deed, the property of the plaintiff.' The conversion was laid on the 12th of February, 1862. Plea, not guilty, and tr'al by the court at the September Term, 1862, Kellogg, J., presiding.

Assumpsit. The facts in the -case, and the decision of the 'court below, to which exception was taken, are stated in the -opinion of the court.

Case against the defendants as common carriers over the railroad known as the Rutland and Burlington railroad, for the loss of a box, containing divers articles of personal property-belonging to the plaintiff, which, as the plaintiff alleged, was delivered to the defendants to carry, as his baggage, from Burlington to Rutland, on the lbth March, 1859. Plea, not guilty, and trial by jury at the June Term, 1860, Kellogg, J., presiding.

Assumpsit. Plea the general issue, and trial by the court, at the December Term, 1861, Kellogg, J., presiding. On the trial before the county court the parties agreed upon the following facts, viz : The plaintiff’s minor daughter, Alletha J. Crosby, taught school iu said district from the 3rd day of May, 1859, to the 22nd day of July, 1859, at the price of one dollar and fifty cents per week, under a contract made by the plaintiff with the defendant.

Trespass for taking a waggon, one neck yoke and two straps, one whiffletree, one evener and two clevies. The defendant justified the taking and disposing of the property by virtue of a tax bill and warrant issued to him as collector of school district No. 8, in Winhall. The following facts were agreed upon : There has been, for some eight or ten years, in Winhall, a legally organized school district, known and designated as district No. 8.

Assumpsit. The defendant pleaded in abatement, that the plaintiff’s claim had been by the parties referred to the arbitrament of a board of arbitrators of which one Mead, the justice of the peace before whom this action was originally tried, was one; that a tria) of the.matter so submitted was had by such board of arbitrators ; that Mead was present and acted as one of the board, and, after hearing the parties and their proofs, expressed his opinion that the plaintiff was…

Trespass for taking certain articles of personal property. Plea, the general issue with notice of special mal ter in defence. The following statement of facts was agreed upon by the parties: On the 2nd of September, 1861, one Moore made at Rupert, in this state, an assignment to the plaintiff of his property, consisting of real and personal estate, for the benefit of his creditors, in pursuance of the statute in relation to such assignments.

Trustee Proce.ss. Tlie case was referred to a commissioner who reported the following facts : The writ was served' on.ihe trustee on the 14th of August* 1861. On the 3d of August, 1860, a town order was drawn by two of the selectmen, of the town- of Woodford upon the treasurer of that town fo.r ninety-two dollars, in favor of the defendant, to whom it was delivered on the day of its date.

Assumpsit oa a promissory note for eleven hundred dollars, bearing date July 5th, 1860, signed by the defendant, and payable to the… Held: the same securities for his private claims against the defendant which he held when the $1100 note was executed. There was no other; undertaking or promise on the part of either party, at the time of the execution of the note for eleven huudred dollars, than as above stated, unless it be implied by law from the facts above stated.