Volume 36 — Vermont Reports

<p> New Covmts. Practice. Covenant.. </p> <p>The plaintiff in his original declaration, averred that the defendant, in.his deed, covenanted that there was no incumbrance upon the premises, when in fact there was an existing incumbrance by mortgage to the defendant’s wife. The court granted leave to amend by adding a new count. In this the plaintiff averred that the defendant covenanted to warrant and defend the premises against all lawful claims and demands, and that the defendant’s wife had a mortgage upon the premises, upon which the plaintiff had been sued in chancery and finally adjudged, by the supreme court, to pay it or forfeit the land. Held, that the cause of action in the two counts was the same, and that the amendment was properly allowed-</p> <p>The fact that the plaintiff could not recover on the first count, for the reason that the covenant against incumbrances is not assignable, and that the rule of damages is different under the covenant of warranty, will not be decisive that the amendment was improperly allowed.</p> <p>The supreme court having decided, on an appeal from chancery, that there is a valid incumbrance by mortgage upon an estate, older and paramount to the plaintiff’s title to the same, under his deed from the defendant, this decision is equivalent to a final judgment at law against the plaintiff’s title, as constituting a breach of the covenant to warrant and defend, upon which an action may be maintained without an actual eviction under the decree.</p> <p>In such an action the fact that it does not appear from the declaration that the amount due on the mortgage had been definitely ascertained in the chancery suit, is not fatal to the declaration.</p>

Assumpsit for the amount of assessments on a premium note of an insurance company. The note was'for $147. The assesments that had accrued at the ’ timé the suit was brought, amounted to less than $100. The case is stated in the opinion of the court. cited Farmer's Mutual Fire Inswrdnce Co. v. Marshall, 29 Vt. 23 ; Shepherd v. Beede, 24 Vt. 40.

Assumpsit for the services of the treasurer of the- Wind-ham County Mining Company, and for the balance due on .his account of receipts and disbursements. Plea the general issue and a plea in offset. Trial by jury, April Term, 1862.

<p>Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the following facts:</p> <p>In May, 1860, the plaintiffs sold qnd delivered to the defendant a water wheel, on a credit of four moúths. The defendant, before the term of credit expired, became dissatisfied with the wheel, and so notified the plaintiffs. But such dissatisfaction arose from no fault, or breach of contract on the part of the plaintiffs.</p> <p>■ In June, 1861, the wheel not having been paid for and the defendant complaining of its operation and declining to pay, an agreement was made between the two parties that the plaintiffs should send a wheel of a different size to the defendant, with a man to set and gear it properly, and if it carried the defendant’s machinery satisfactorily, he agreed to pay for it, and all expenses of sending and setting it, and the plaintiffs should take back the first wheel. In case the second wheel failed to perform satisfactorily the plaintiffs were to take back both wheels.</p> <p>In the same month of June the plaintiffs sent to the defendant the new wheel and a competent mill-wright by the name ofProuty to set it. Prouty did not set the wheel, and by his direction it was sent back to the plaintiffs.</p> <p>Prouty went the first time by the plaintiffs’ direction to the defendant’s mill, had conversation with him, went back to the plaintiffs the next day and was sent by them the third day with further instructions to the defendant.</p> <p>The defendant’s testimony tended to show that Prouty on his first visit flatly refused to put in the new wheel, although urged to do so by the defendant — for the alleged reason that in his judgment it would not answer the purpose, and insisted upon returning to consult his employers.</p> <p>The plaintiffs’ testimony tended to show that Prouty on his first visit was ready and willing to set the new wheel, and that the defendant refused to pay any part of the expense, on which account alone he returned, without putting in the wheel, for further instructions.</p> <p>The plaintiffs offered to prove what reason Prouty gave to the plaintiffs on his return the first time for not having set the wheel. To this the defendant objected, and it was admitted — -and Mr, TJpham, one of the plaintiffs, testified as follows;</p> <p>“ The reason Prouty gave me, when he came back the first time, for not putting in the 30-inch wheel, was that Mr. "Wheel* ock refused to pay a dollar of the expenses, or for any thing except the wheel itself.”</p> <p>The auditor allowed the plaintiffs’ account at $269.57.</p> <p>The county court, at the September Term, 1862, Newton, Ass’t J., presiding, accepted the report, and rendered judgment thereon for the plaintiffs. Exceptions by the defendant.</p> <p>The declaration of Prouty made to his employer, the plaintiff Upham, was mere hearsay. It was no part of the res gestee. 2 Phil. Ev. Cowen & Hill’s notes, pp. 186 and 187 ; Holbrook et al. v. Murray et al., 20 Vt. 525 ; Hayward Rubber Go. v. Dvmhlee, 30 Vt. 29 ; State v. Davidson, ib. 377.</p>

Assumpsit, upon the common counts, for money had and received. The defendants were sued as partners negotiating in business under the name and firm of the New England Protective Union, Division 172. At the April Term, 1862, Windham County Court, Barrett, L, presiding-, eight defendants were defaulted. The remaining defendants went to trial by jury upon the general issue.

<p>Book Account. Judgment to account was rendered and an auditor was appointed, who reported the fact's as follows :</p> <p>The plaintiffs were dry goods dealers in Brattleboro, and at the request of the defendant’s wife, then living with the defendant, sold to her the articles charged on their book, which were appropriate to the reasonable wants of the defendant’s family, and were actually applied by the defendant’s wife to the supply of such wants. But when she purchased these articles, she requested the plaintiffs not to call on the defendant, her husband, for the pay, and expressed the wish to pay for the articles herself ; and in pursuance of this intimation she did from time to time render and make the services and payments constituting the ■items of credit in the plaintiffs’ exhibit. While this account was thus accruing the defendant was unaware of its existence, and then believed that lie himself was furnishing all the necessaries for his wife and children. But the defendant’s wife finally became sick of an illness, (which ultimately proved fatal,) and the plaintiffs called on the defendant to pay the account, and the defendant’s first answer was that he knew nothing about it, but would settle it, and after being called on again several days later to pay it, he said that he would.</p> <p>But the auditor further found that when the defendant so promised to pay the account, the plaintiffs had not informed him that his wife had asked the privilege, or that the plaintiffs had given it, of paying for the articles herself. This' information was first given at the justice trial of this cause, when the defend-. an.t asked the plaintiffs why they had not sooner asked for the pay, and Day, one of the plaintiffs, answered, “ because your wife asked the privilege of paying herself in her work and I consented.”'</p> <p>Neither party offered any proof as to the nature of the motive of the defendant’s wife, whether it was to conceal from her husband the amount of expenplitures in the family, or whether it was to relieve him from the vexation of the debt.</p> <p>The auditor found that the articles so delivered by the plaintiffs' to the defendant’s wife were sold at a fair price.</p> <p>The court at the April Term, 1862, Barrett, J., presiding, rendered judgment'on the report for the plaintiffs, to which the defendant excepted,</p> <p>Up to the time of the defendant’s promise to settle the debt which his wife had contracted in her own name, no -liability whatever rested upon him. Metcalf v. Shaw', 3 Camp. 22 ; 11 •E. C. L. 301, note ; Bentley v. Griffin, 1E. C. L. 131; Montague v. Benedict, 2 Smith’s D. C-, 277; Seaton v. Benedict, 2 Smith’s L. C. 302 ; Bingham on Infancy 187-8 ; Stammers v. Macomb, 2 Wend. 452.</p> <p>The promise-made by the defendant to the plaintiffs was a-promise to pay a debt which, at the time, no rule of law required him to pay; a promise made in utter ignorance of material facts, in ignorance of the rule of law touching his liability, and without any consideration whatever. Warder et al. v, Tucker, 7 Mass. 451; Freeman et al. v. Boynton, 7 Mass. 488 ; May v. Coffin, 4 Mass. 347.</p> <p>cited 2 Smith’s L. C. 434; Reeves Dóm. Rel. 79 ; Gilman v. Andrus, 28 Vt. 241 ; Wait-ham v. Wakefield, 1 Camp. 121.</p>

Trustee Process. The principal defendant was defaulted, and Abishai Stoddard, Esq., was appointed commissioner to take the disclosure of the trustee. It appeared from the report of the commissioner that the principal defendant, Burrington, carried on the farm of • the supposed trustee, Lewis Collins, at the halves. The letting was in accordance with the usual custom of letting farms at the halves.

Assumpsit for goods sold and delivered. Common counts. Plea, the general issue, and plea in offset. The cause was referred, and the referee reported the facts as follows : The plaintiff, a merchant doing business in Whitingham, claimed to have kept the credit as well as the debit side of the account, and presented a specification of his credits, transcribed from his books.

This case went to the supreme court once before on an appeal from a decree of the chancellor, and was sent back with a mandate hereinafter stated.

<p>[in chancery.]</p> <p> Town Clerk. Levy. Record. Lien. </p> <p>Where a town clerk’s certificate and an officer's return disagree as to the time when a levy of execution was recorded in the town clerk’s office, the certificate of the clerk will prevail.</p> <p>Tf an execution is actually levied on the land attached on mesne process, and the appraisal made within five calendar- months after the rendition of final judgment, but the levy is not recorded in the town clerk’s office until after the five months have expired, the levy will not be in season to connect it with the attachment Hen.</p> <p>There is no analogy between an unrecorded conveyance and a defective levy. A deed passes tbe title between the parties, and recording is only necessary to give notice of it to the world; while a levy so long as it lacks any of the statute requisites, is wholly insufficient to affect the title, even as between the parties.</p>

Ejectment for land in Chester. Plea the general issue, and notice. Trial by jury, December Term, 1862.

Book Account. The auditor reported that all- the items of the plaintiff’s account amounted, without interest, to $107.25;' that for the first three items a note was given ; that when it was given there was no other account between them, and this note was paid before the commencement of this suit; that as to item 12, the plaintiff agreed with the defendant to make him a sleigh, and afterwards agreed with him to make one more expensive by the sum of eight or ten dollars, the…

Trespass in two counts, — quare clausum and cutting trees, and de bonis asportatis for the same property. Plea not guilty, and trial by jury, December Term, 1861, Barrett,'J., presiding. Upon trial tlie matter in controversy was as to the dividing line between lands owned by the plaintiffs and lands owned by James N. Willard, one of the defendants. The plaintiffs claimed title to the land in dispute by virtue of a deed from David H. Sumner to them, dated April 24, I860.

Appear from the court of chancery. The bill was brought to. dissolve a partnership, and praying not only for its dissolution,, but for the'closing up of its affairs, and for contribution by the members, or a portion of them, for the payment of certain liabilities. The orators and defendants were members of an association, called the New England Protective Union, Division No. 236, organized March 28th, 1851, and composed of about eighty members.

Case, to recover the penalty imposed by the statute for not restraining rams. Plea, not guilty, with notice of special matter in defense. Trial by jury at the MayTerm, 1862, Barrett, J., presiding.

'Assumpsit on a promissory note. Plea in abatement, to •which the plaintiff demurred. The plea is given in the opinion of the court. At the December Term, 1862, Barrett, J., presiding, the court adjudged the plea insufficient, to which the defendant excepted.. V. S. Fullam, for the plaintiff, cited Gould’s Pleadings, pages 85 and 293 ; Saund. Pleadings and Ev. 1, p. 525 (429 ;) Chitty’s Pleadings 1, '457 ; Landon v. Boberts, 20 Vt. 286 ; Durand v. Griswold, 26 Vt. 48 ; Hilly.

<p>[in chan cert.]</p> <p>Deposition. Motion to Suppress Testimony. Husband and Wife, Assignment.</p> <p>A deposition ought not to be suppressed for a failure to comply with the rules in a mere matter of form, unless such failure proceeds from bad faith rather than mere accident and mistake.</p> <p>Where a party files a motion to suppress testimony, and the adverse party-gives notice to bring it on before the hearing in chief, held, that it should be so brought on, or that it should not be entertained on the hearing in chief.</p> <p>H. suffered his wife to set up the millinery business in her own name, and to manage it at her own discretion, he having nothing to do with making the purchases, keeping the accounts, or paying the debts of the business, and having furnished no capital for which he had not been repaid, and having had no communication with those of vvhom his wife made her purchases. Beld, that’ on equity principles the stock and property in the millinery shop must be treated as the separate property of the wife, and be held liable for her debts and subject to the demands affecting it.</p> <p>Beld also, thatH. has no equity to the goods of his wife on the ground that he had supported her and assisted her occasionally in the millinery business, which will stand against the rights of her creditors.</p> <p>Held further, that H. cannot by assignment of the goods and -other property in the millinery shop create a lien on the same in the assignee, who had notice of the manner in which the stock and property had been acquired and in which the business of the shop had been conducted, which Will be effectual against her creditors who supplied goods to the shop.</p>

A petition for foreclosure was brought against the defendant Hubbard, who was a subsequent mortgagee, and the other defendants who claimed under him. The bill wap .taken as confessed with right to be heard upon the subject of damages. The facts stated in the bill are fully given in the opinion of the court.

The case is fully stated in the opinion. The court of chancery, May Term, 1861, Pier-point, Ch., dismissed the hill pro /oma, with costs. Appeal by the orator. This case was argued at the February Term, 1862, and reserved for consideration. At the present term, the opinion of the court was delivered by

Assumpsit. General counts. Plea the general issue and statute of limitations. Trial by jury, May Term, 1862, Barrett, J., presiding. The claim was for board and maintenance of a minor son. It appeared that in 1855 the plaintiff commenced an action on book account against Calvin Sargeant for the same cause as that presented in this action, and the case was referred to an auditor.

This is an appeal from the judgment of a justice on a complaint against the respondent .for selling spirituous liquors in violation of the statute. Plea,.not guilty. Trial by the court by request of parties, December Term, 1861, Barrett, J., presiding.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows: Previous to 1848, a company, formed for the purpose of manufacturing- woolens, and doing business under the name of the “Ludlow Woolen Mill,” consisted of Abraham Adams, Albert Day and Shepherd Adams. On the 11th day of January, 1848, Day conveyed his interest in the company to Shepherd Adams by deed.

Assumpsit on a promissory note. Plea, the general issue and notice. Trial by court, by consent of parties, December Term, 1862, Barrett, J., presiding. The plaintiff read the note declared on without objection, signed by Isaac Green as principal, and Geo. B. Green, Jo. D. Hatch and Chester Baxter as sureties, and indorsed to the plaintiff by the payee Albert Brown, guardian, without recourse; and rested.

This was an appeal from the decision of the probate court of the district of Hartford, upon a claim presented to that court, consisting of a guardian bond given to said court by one John Wright, and executed by him upon his appointment as guardian of Enoch Hovey, an insane person, and a receipt also executed by said Wright, acknowledging the receipt of the ward’s property.

Covenant. Plea, non est factum, and notice. Trial by jury, June Term, 1862, Peck, J., presiding-. The facts in the case are sufficiently stated in the opinion of the court. Verdict for the plaintiffs, — exceptions by the defendant. cited Alcott v. DionMee, 16 Vt., 478 ; Sherwm & Salpaugh, v. B. & B. B. B. Go., 24 Vt. 347 ; Lawrence v. Davey, 28 Vt-. 264 ; Kettle y. Harvey et al., 21 Vt. 301.

<p> Parol Evidence. Deposition. </p> <p>Where á copy of a lost deposition is offered on the trial, after the death of the witness, parol evidence is admissible which tends to prove that the original was taken with all the necessary legal formalities.</p> <p>The fact that a deposition was taken with all the necessary formalities being established, and the proof that it was lost and that the copy was correct being satisfactory, the copy was admissible, after the death of the witness, to prove what tho witness had testified to.</p>

<p> Notice. Highway. Practice. </p> <p>Where commissioners have decided that a highway ought to be laid out, it would be error for them to proceed to ascertain what damages should be awarded to the owners of the land through which the road passed, without giving notice to the town as well as to the owners of the land, so that it might appear and be heard upon that subject.</p> <p>Under our practice it would not be necessary to quash the whole proceedings in such a case, but only to remand it to the county court to be sent out to the commissioners to appraise the damages anew with notice to the town and the persons interested.</p>

<p> Contract. Usury. Assignments. </p> <p>Where a party agreed to raise for the plaintiff twenty thousand dollars for two years, on conditions that the plaintiff would purchase of him a factory for twenty-five hundred dollars, and would give him a note for twenty-five thousand dollars, which was to stand as an indemnity note, secured hy a mortgage of the plaintiff’s real estate, it was held, that this was an agreement to loan twenty thousand dollars, and not merely to guarantee the plaintiff’s notes and drafts to that amount.</p> <p>And if the factory was worth but one thousand dollars, and this was so understood by both parties at the time of the purchase, but nothing was said as to its value, it was held, that this purchase was a mere cover for usury.</p> <p>And when, in consequence of this agreement, the said party7 was obliged to pay seventeen hundred and twenty dollars to raise money to carry On his own business, but charged it to the plaintiff, under the pretense that he had to pay it to raise the money for the plaintiff, and the same was paid by the assignees of the plaintiff, and by his direction, (he having failed, and made an assignment of his property for the benefit of certain creditors), it was held, that this sum was obtained by fraud and could be recovered back.</p> <p>Held also, that the assignees having failed to claim a restitution of this sum until their right to claim'it is barred, the plaintiff may recover it back.</p> <p>Where a debtor mortgages his real estate, and afterwards makes an assignment of a portion of his property, including that mortgaged, to certain creditors to pay certain debts, and the assignees pay the mortgage debt, a part of which was usury, by the special request and direction of the debtor, it is held, that the right to recover back the usury7 is personal to the debtor as the party who furnished the funds, and appropriated them to this particular use.</p> <p>• Where a debtor makes an assignment of a part of his proporty to certain creditors to pay the debts he owed them, and also puts into their hands a fund to be applied on his debts, but not subject to or included in the assignment; and the assignees object to paying a certain claim, believing it to be usurious, but do pay it pursuant to the directions of the debtor, the law will presume, from the conduct of the parties and in the absence of all proof to show any different application of this fund, that the claim was paid out of this fund, and the debtor may recover it back.</p>

<p>Referee's Report. Landlord and Tenant. Partnership. False Representations. Tort. Damages. Practice. Depositions»</p> <p>A report of a referee will not be set aside for any defects which might be cured by amendment.</p> <p>Where a landlord puts a yoke of oxen on his farm for his tenant’s use, and he and his tenant appraise them, and agree that they will share in the profit or loss upon their appraised value,and afterwards agree that the tenant shall sell them at a certain price, which he does, and makes a false representation as-to their soundness, but the landlord affirms the trade and receives the fruit of it; it is held, that both parties are liable'for the wrongful act of the tenant, whether the relation between them be that of partners, joint owners or principal and agent, though the landlord did not know of the unsoundness, or that the tenant made any false representations in respect to them.</p> <p>Where a yoke of oxen were purchased for work and were represented to be sound, but proved to be unsound, and by reason of their unsoundness were worth $25 less for work and $10 less for beef, it is held, that damages, for the larger sum may be recovered.</p> <p>Depositions taken to be used in a case which is referred, need not be filed with the clerk before being opened by the referee or auditor, but the latter should file them as opened.by him.</p>

<p>Forcible Entry and Detainer. Plea, the general issue. Trial by jury, January Term, 1860, Kellogg, J., presiding.*</p> <p>The complaint alleged both a forcible entry and a forcible detainer.</p> <p>The premises in question were in the possession of the plaintiff at the time of the entry by the defendant, but the house was unoccupied. Daniel Kelsey’s wife, assisted by Cleveland, as a servant or agent, took possession of the house in the night time, in January, 1858, without using any force or violence, she claiming a right, as the wife of said Kelsey, to a homestead in the house and farm ; and in about two weeks her husband moved in, and has continued to occupy the house since. In the month of March following, Cleveland moved his family in, and he and Kelsey occupied the farm together- that season. The next morning after Mrs. K. and Cleveland took possession, one John Sawyer, who acted as agent of the plaintiff, went to the house for the purpose of getting some tools he had left there the day before, and -found the doors, fastened, and admittance was refused' by Mrs. Kelsey, until he informed her what he wanted ; then he was admitted to get his tools, but was forbidden to 'return them to the house.</p> <p>In the latter part of March, said Sawyer had occasion to water the -cattle of the plaintiff in a field belonging to the •premises, when Cleveland’and Kelsey interfered and forcibly prevented him from doing so ; and ho was under the necessity of talcing the cattle away and has never since had any possession of the premises. • ' .</p> <p>The question of title was entered into on the trial, but it .is not necessary that the facts in relation to that point should be stated.</p> <p>The court charged in. substance, that it was the duty of the jury to determine, upon the evidence in the case,, what was the character of the first entry made by the defendants, whether it was with or without force ; that a mere unlawful entry, but without force, although it might be a trespass, would not be sufficient to support this complaint; that the entry complained of should have been not merely an unlawful, but a forcible entry, or an entry which was attended with actual or real force, or some apparent violence, in word or deed ; and that the premises were then detained by the defendants, without the consent and against the will of the plaintiff, and with the like force.</p> <p>Verdict for the defendants, — exceptions by the plaintiff.</p> <p>cited 4 John. 198 ; 8 Cowan 226 ; 4 Bac. Abr. 325 n.; 9 Yerg. 93 and 317, cited in Russ., on Cr., 309 n.; (2 Blackf., 133 ; 4 Bibb. 388 ; Court Rep. 489) ; 2 U. S. Dig. 435 ; Benedict v. Hart', 1 Cushing 487; Vaughan v. Porter, 16 Vt. 266 ; Whitney v. Lynde, ib. 579.</p> <p>On the point as to what the court-should have charged the jury, Briggs v. Taylor, 28 Vt. 180 ; Fletcher v. Cole, 26 Vt. 170 ; PerUnau v. Phelps, 25 Vt. 478 ; Trow v. Vt. G. R. R." Go., 24 Vt. 487 ; Sessions v. Town of Newport, 23 Vt. 9. If either the forcible entry or forcible detainer are made out, it is sufficient to support this complaint. 1 Russ, on Cr. 304, n.; 8 Cowan, 226 ; 4 Bac. Abr. 325,' n. and cases cited ; 2 Serg. and Rawle, 124; 1 Russ, on Cr. 312, n. and cases cited.</p> <p>The- question is : What constitutes a forcible entry within the meaning of the statute ? If the entry is unlawful and forcible, with strong hand, then this action will lie. If the entry is wrongful, unlawful, but without force, then a demand in writing must be made for’ possession before this action will lie. C. S. 306, sec. 13..</p> <p>The charge of the Court, that an entry made without actual or real force or violence, although a trespass, would not be a forcible entry within the statute, was correct. Bex v. Wilson, 8 T. R. 356 ; Commonwealth v. Dudley, 10 Mass. 409 ; Gray v. Finch, 23 Conn. 515 ; People v. Smith, 24 Barb. 19 ; Commonwealth v. Shattuclc, 4 Cush. 141; Dustin v. Cowdry el al., 23 Vt. 631; Mussey v. Scott, 32 Vt. 82 ; 19 U. S. Dig. p. 328, pi. 7, 8, cites Dickenson v. Maguire, 9 Cal. 46.</p>

<p> Appeal from Commissioners. Bonds. Administrator. </p> <p>In an appeal by a creditor, devisee, legatee or heir from tbe decision of commissioners under sec. 27, chap. 52, C. 8., (sec. 27, chap. 53, Gen. St.) the giving of the bond to secure the estate from damages and costs is indispensible, as well as to secure the intervening damages and costs to the adverse party. It is a peremptory requirement of the statute.</p> <p>Where the omission to file such bond appears from the face of the record, it can be taken advantage of by motion to dismiss the appeal.</p> <p>Under the provisions of the statute (sec. 37, chap. 53 Gen. St.) the administrator of an heir has the same right of appeal as the heir would have had if living.</p>

<p>Covenant. This action was brought on the breach of the covenant of seizin. Plea, non est factum, and special pleas on which issue of fact was joined. No question was made under the plea of non est factum. Trial by Court, June Term, 1862, Peck, J., presiding.</p> <p>The several deeds by which the premises in question passed from Joseph Bigelow to the plaintiff, are sufficiently referred to in the opinion of the court; and also a statement of the breach alleged. It appeared that the premises were pm-chased of said Bigelow for the purpose of furnishing a home for Sarah Thayer and her son, Henry G. Thayer, and the money was furnished by Ephraim Thayer, son of said Sarah, and with the understanding that the title should be put beyond the power of Henry G. to dispose of it; that said Ephraim was never repaid, nor was any repayment expected; that Henry G. and his mother went into immediate possession of the premises, and occupied them until they were sold to the defendant. The defendant, when he purchased, went into possession and occupied until he deeded to the plaintiff; and the plaintiff in taking his deed, entered into possession and has enjoyed the premises ever since, and was still in possession. The Court decided that the plaintiff, On executing a quit claim deed to the defendant with covenants against all claims under him, might have judgment for $250, that being the sum he paid the defendant for the premises ; but allowed the plaintiff no interest on the sum paid, he having had the use of the premises since'he took his deed. The plaintiff having executed such deed and lodged it with the clerk for the defendant, the Court rendered judgment as above stated, — to which the defendant excepted.</p> <p>The deed from Joseph Bigelow to Sarah Thayer must be construed to be to the said Sarah in trust for the heirs of Henry G. Thayer, as is expressed in the granting part and habendum of the deed. The covenant to the children of the said Henry cannot control the former expressions. If there are repugnant words or clauses in a contract or deed the first shall be received and the last rejected, unless there is some special reason to the contrary. 1 Swift’s Digest 227 ; 2 Hill’s Beal Prop. 338 and cases cited. In determining this question of construction we may call in aid the subsequent conduct of the parties. Wheeloch v. Moulton et al., 15'Vt. 519 ; and this we do by the deed of Sarah Thayer and her husband to “ the heirs of Henry G. and Sally Thayer, which shows how Sarah Thayer understood the deed. If we are correct in this proposition then we insist that the trust part of the deed is void, and the would-be trustee took both the legal and equitable estate. Nemo est haeres viventis. A conveyance to the heirs of one living is void. A use requires a cestui in esse, and can not, therefore, take effect if limited to a person not in esse. A trust in relation to real estate is a use not executed by the statute of uses, and requires a cestui qui trust in esse at the time of its creation or it will be void. 2 Hilliard’s1 Beal Prop. 351; Lib. 295.</p> <p>A purchaser without notice from one with notice is not charged With the trust. So a purchaser with notice from one without notice. 1 Hilliard’s Beal Prop. 341 and cases cited.</p> <p>We insist that tlie registry of the trust deed was not a sufficient notice of the trust; and that the doctrine of constructive notice does not apply. 2 N. Y. Digest 922, referring to Murray v. Ballon, 1 John’s Ch. 566 ; OhamqMn v. Laytin, 6 Paige 189, affirmed in 18 Wend. 407 ; Harlow v. Green, decided by this court at the last General Term not yet reported. _</p> <p>Again, when the cestui is not sui juris the trustee may convey the trust estate so as to vest a good title in the purchaser without the consent of the cestui. Pownal v. Myers et al., 16 Vt. 415, and cases there cited. If the cestui que trusts were sui juris the case should have shown it, or the presumption is that they were not. The assent of the cestui may be either express or implied. This implication may result either from circumstances or lapse of time, or both. Pownal v. Myers et al., 16 Vt. 415. The cestui que trusts, if there be any, have only an equitable interest and may or may not assert it, and should the plaintiff recover full damages when he has never been disturbed in the least and no prospect of his ever being • disturbed ? 7 Johns. 358; 12 Mass. 304; 13 Johns. 50; 2 Mass. 433 ; 4 Mass. 628 and 441; 4 Johns. 1; 14 Mass. 144 ; 16 Johns. 254.</p> <p>“ That the grantor is the lawful owner, that he is seized in fee, that he has good right to sell and convey,” are synonymous terms. Marston v. Hobbs, 2 Mass. 433 ; Willard v. Twitchell, 1 N. H. 177. The covenant guarantees against the existing right of any third person, which might defeat the estate granted. Fitch v. Baldwin, 17 John. 161.</p> <p>Proof of the deed to Sarah Thayer in trust for the children, or heirs of Henry G. Thayer, was sufficient to show that the defendant did not have any title to the premises, and was not the owner of them. This deed should be construed according to the intention of the parties to the same, which evidently was to invest the title of the premises in the children of Henry G. Thayer. Blake and Wife v. Stone et al., 27 Vt. 575 ; Smith et al. v. Hastings, 29 Vt. 240.</p> <p>The covenants of ownership and seizin, and that the land is free from incumbrances, are personal covenants not running with the land, and are broken at the execution of the deed. 4 Kent’s Com. 471 (555) ; also Richardson v. Dorr, 5 Vt, 9 ; Mills v. Gatlin, 22 Vt. 98.</p> <p>It has been held in some of the states that the covenant of seizin was satisfied if the granter was seized in fact claiming a fee. But other decisions hold that there must be a legal seizin in fee to answer the covenant. This last is the rule of the common law, and seems now to be the settled law in Vermont. Richardson v. Dorr; Mills v. Gatlin, cases above cited.</p> <p>The rule of damages is the consideration paid for the land, and the interest of the money. In this -case if the plaintiff is liable over to the children of Henry G. Thayer for the rents and use of the premises, for this reason he is entitled to the interest of his money paid, if nothing more, — cases above- cited, also Marston v. Hobbs, 2 Mass, 433 ; Bickford v. Page, 2 Mass. 455-</p>

<p> Replevin. Lien. Parol Evidence. </p> <p>Where one executes a contract of sale of an article of personal property, but retains the article in big possession in pursuance of the provisions of the contract, he muy maintain replevin for the unlawful taking and detention of the same by any other person.</p> <p>Where a written contract of sale of personal property purports to be an absolute sale, but the transaction is in fact a conveyance by way of security for a debt, with a verbal agreement of defeasance upon paying the debt,, this agreement may be shown, and will be effectual to characterize and show the true interest and legal effect of the transfer.</p> <p>A person has no lien on a cow for her keeping without a special agreement to that effect.</p>

<p>Appeal from Chancery. The oratrix, Jerusha Tracy, alleged in substance, that she was the daughter of Elijah Tracy, who, when old and infirm, being desirous of providing support and a home for himself and wife and daughter, and also of being relieved from the labor and trouble of carrying on his farm, entered into an agreement with one Ebenezer Colburn, by the terms of which he was to convey to Colburn one-half of his farm, and permit him to carry on the bther half, and in consideration thereof, Colburn was to maintain and support him and his wife during their natural lives ; and op the 6th of May, 1819, by deed duly executed and acknowledged, he conveyed one-half of his farm to Colburn, and in order to secure the performance of the agreement on the part of Colburn, Mr.’ Tracy took a life lease of the same from Colburn ; that on the 16th of July,1820, the parties having become dissatisfied with their agreement, mutually agreed to give up and cancel their contract, and from that time the same was abandoned and so treated by both parties ; that Tracy then entered into an agreement with one Hezekiah Colby of Tunbridge, on the same 16th of July, as follows:</p> <p>“ Tunbridge, July 16th, 1820.</p> <p>“ An agreement between Elijah Tracy and I-Iezekiah Colby :— Said Tracy agrees to give to said Colby a deed of one-half of his real property, according to quantity and quality, on demand, and the said Colby agrees to give said Tracy at the same time a life lease of the same property, and further, the said Colby agrees to take the farm to the halves, or otherwise to provide a decent and comfortable living for said Tracy and his wife during their natural lives, and for their daughter Jerusha till she has a home of her own, and said Tracy agrees to let said Colby have the farm so long as he fulfills the above agreement, — and the said Tracy agrees to put on a yoke of oxen, &c. And if said Colby shall make any betterments on said farm, either by clearing or building, or any other way that he has not got his pay for in the use of the betterments so made, at the expiration, of the above agreements, it shall be left to indifferent men to judge between him and-said Tracy’s heirs according to justice and equity. And said Colby further agrees to return the above mentioned stock and farming tools to said Tracy’s heirs, at the expiration of the above agreement.</p> <p>Signed by the parties.”</p> <p>That on the 17th of July, 1820, in further execution of this agreement at the request of Tracy, Colburn conveyed by deed to Colby, the undivided half of this farm, which had been ’conveyed to him, Colburn, by Tracy on the 6th of May, 1819, and on the same day, Tracy discharged Colburn from all liability on the life lease which he, Colburn, had given to Tracy on the same 6th- of May — by giving to Colburn a quit-claim deed of a certain piece of land, “ in Tunbridge aforesaid described as follows, viz : By virtue of a lease made and executed by the said Colburn to me on the 6th day of May, A. D. 1819, this, deed being given for the express purpose of discharging said Colburn from any liability on the account of said lease” ; that under the agreement between Tracy and Colby, Colby took possession of the whole of Tracy’s farm, and on the 11th of March, 1825, executed to Tracy a life lease of that portion of the farm which was deeded to him by Colburn ; that in this lease was the following admission, “ And for the rent of said land, said Colby acknowledges the receipt of a deed of the same land as full payment for the rent during the above term” ; that the only consideration for the conveyance of the undivided half of the Tracy farm to Colby, was the agreement above set forth,- by which Tracy hoped to be supported according to the terms thereof; that the life lease was executed to secure the performance of the agreement on the part of Colby, but it was not properly drawn so as to be adapted to that end ; that for a long time prior to January, 1830,’ Colby failed to perform his agreement, neglected to carry on the farm in a proper manner, and neglected to furnish the support provided in the agreement of July 16th, 1820 ; that on the 21st of January, 1830, Tracy sued Colby as bailiff and receiver of the profits.of his farm since July 16th, 1820, and of the personal property thereon, and recovered judgment againt him for the same ; that on the 12th of November, 1831, Tracy sued out his writ of ejectment against Colby to recover the seisin and possession of ;his ■ whole farm, and at the December Term, Orange County Court, 1831, recovered a final judgment for the same, and that this recovery was based upon the* fact that Colby had failed to perform his contract with Tracy ; that on the 18th day of January, 1830, Colby conveyed by quit-claim deed, to the defendant Sally Hutchins, the whole of his interest in Tracy’s farm ; that from the time judgment was rendered against Colby in the ejectment suit, he neglected and refused to fulfill his agreement, and to _ provide any support for Tracy, and entirely abandoned his contract with him ; that the said Sally Hutchins has also neglected and refused to afford any support for Tracy or to fulfill the agreement of July 16th, 1820, in any particularthat she had full knowledge of the circumstances under which the conveyance was made to Colby, and when she took said conveyance she knew that Tracy claimed that Colby had forfeited all right to hold said farm by reason of his non-performance of said contract; that in 1836, Tracy died, and in his last will and testament devised to his daughter, Jerusha Tracy, the oratrix, the undivided half of his’real estate that had been conveyed by him through Colburn to Colby; that in 1860, Sally Hutchins brought an action of ejectment against the oratrix to recover the seisin and possession of the said undivided, half of the Tracy farm. And during the pendency of said action the oratrix brought this bill in chancery, praying that the said Sally Hutchins might be enjoined from further prosecution of her suit of ejectment against the oratrix, and from asserting any claim to the premises in controversy, and that she should release all claim to the same, and for general relief. The defendant in her answer denied all the material facts alleged in the bill,' except the fact of the several conveyances referred to therein, and averred that Colby paid Col-burn $200, in consideration of the conveyance to him; that the life lease of 1825, expressed the only agreement in force between Tracy and Colby as to the support of Tracy, .and merged all that had theretofore been agreed between the parties ; that Colby made many permanent improvements on the farm ; that in doing this, he got embarrassed by debts, .and that she advanced him money to pay his debts and took a deed of his real estate ; that she was the sister-in-law of Colby and the daughter of Tracy and the half-sister of the oratrix, and took this deed of Colby and paid up his debts for the benefit of all parties generally; that the ground upon which Tracy recovered the seisin and possession of the farm against Colby, was the fact that he 'had a freehold estate by the lease of 1825 ; that since the recovery in that suit, neither she nor Colby had been permitted or allowed to furnish a supportto the Tracys. The answer was traversed and testimony was taken, the result of which is sufficiently stated in the opinion of the court. The cause was heard at the January Term, 1863, Orange Couuty, by Peck, Ch., who decreed in substance, that the defendant be perpetually enjoined from prosecuting her suit of ejectment and from bringing any' other action for the recovery of the seisin and possession of the premises in question, based on her title and claim under her deed from Colby, and that she release to the oratrix all her right, title and interest in the premises, derived by, through or under said deed, — from which decree the defendant appealed.</p> <p>cited Olcott v. DunJdee, 16 Vt. 478, upon the point as to what was the interest of Colby in the estate after the execution of the life lease, and what was his legal right. By the conveyance to Mrs. Hutchins, she acquired the rights of Colby, as shown by the record. The ejects ment of Colby could not affect Mrs. Hutchins’s rights, for she was not-made party to the suit. Marvin, v. Denison, 20 Vt. 664.</p> <p>For the non-performance on the part of Colby, the freehold was lost but not the inheritance. Able v. Goodwin, 7 Conn. 377. Mrs. Hutchins is entitled to stand upon the record, and is not affected by any estoppel or equities, as between Tracy and Colby. Bigelow v. Toplijf, 25 Vt. 288. But she has equitable as well legal rights, which she is entitled to have protected. The deed and life lease were .recorded, and showed the fee in Colby and only a life estate in Tracy. Had any further right or interest been intended, this agreement would also have been incorporated and spread upon the record. A court of equity will not lend its aid to enforce a condition subsequent. 4 Kent 129.</p> <p>The contract- between Colby and Tracy is embraced in the written contract of July 16th. The only consideration paid Tracy for the conveyance was the agreement to support the old people. The defendant knew, or was bound to know, on what terms Colby occupied the premises. She was Tracy’s daughter, lived in the same town and visited home often. There was a breach of the contract on the part of Colby prior to the time that the defendant took her deed, January 18th, 1830. Mrs. Hutchins having taken her deed with notice of the terms upon which Colby occupied the farm, succeeds to all his rights, no less, no more. She cannot recover then.</p>

<p>Assumpsit, for money had and received. Trial by jury, ■ •January Term, 1863, Peck, J. presiding. The plaintiff hired of the defendant $1000, for which he gave five two hundred dollar notes and one sixty dollar note, and claimed on the trial that the sixty dollar note was given as a bonus and as usurious interest on the loan.</p> <p>The defendant introduced evidence tending to prove that he refused several times when applied to by the plaintiff to loan him the thousand dollars, and that he had to spend some time in raising the money, and had to borrow a part of it, and also had to take money in his hands in trust as administrator on the estate of a Mr. Lougee, and that the sixty dollar note was given to pay him for his time and trouble in raising the money, and for the risk in taking the trust money for this purpose; that they afterwards had deal together, and the’ plaintiff gave him a new note for about $87, which included the sixty dollar note and the balance due him on their deal; that the plaintiff afterwards paid a part of this, and gave another note of $37 for the balance due 'on this eighty-seven dollar note ; that he finally sued'the plaintiff for the thirty-seven dollar note, and attached his property, but before the return day of the writ, the plaintiff settled the suit by paying the amount of the note and costs.</p> <p>The defendant requested the court to charge the jury 1. that if they should find that this sixty dollars was paid to Mr. Waldo by Mr. Wheatley to compensate him for his trouble and liability in loaning one thousand dollars to Mr. Wheatley, which Mr. Waldo happened to have on hand, but which did' not belong to him, that such payment could not constitute usury.</p> <p>2. That the payment of a bonus to Mr. Waldo by Mr. Wheatley to induce him to go and borrow or hire money to loan to Mr. Wheatley, would not constitute usury.</p> <p>3. That if defendant received the sixty dollars of plaintiff as a bonus to compensate him for trouble of borrowing a part of tbe money, and to compensate bim for the trouble of raising tbe money for tbe.estate of Mr. Lougee, when be should be called on to settle bis administrative accounts, it would not be usury. ,</p> <p>4. That if tbe plaintiff paid this sixty dollars to the defendant after‘suit commenced and bis property bad been attached, it was not a voluntary payment, and cannot be recovered back.</p> <p>5. That if a part of tbe sixty dollars bad been previously paid voluntarily, still if be afterwards paid tbe balance upon compulsory process, he cannot maintain this action to recover any part as the original contract and assumpsit on which tbe sixty dollars was agreed to be paid, was an entire contract and not capable of being divided, and when sued tbe whole matter of said contract should have been litigated in that suit.</p> <p>6. That being in the nature of a penal action, it required full proof, as in criminal cases, to entitle tbe plaintiff to recover.</p> <p>No exception was taken by tbe defendant’s counsel to the charge nor to a refusal or neglect to charge as requested, except as to tbe 4th, 5th and 6th requests, but as to tbe 4th and 5th requests, tbe court decided, that if tbe $37 note was sued and tbe defendant’s' property attached, and tbe suit settled, and tbe debt and costs paid before judgment or return day of tbe writ, as defendant’s evidence tended to prove, tbe effect was the same as. to plaintiff’s right to recover as if it had been paid without suit, and- so instructed tbe >ry-</p> <p>- As to tbe 6th request, tbe court charged tbe jury that tbe rule of evidence in criminal cases did not apply to this case, that tbe rule applicable to this case, was tbe same as in other civil actions.</p> <p>Tbe defendant excepted to tbe charge as to tbe 4th, 5th and 6th requests.</p> <p>Tbe jury returned a verdict for tbe plaintiff for tbe full amount of tbe $60, and tbe interest on tbe same from.the date of thé transaction to tbe term of tbe trial.</p> <p>Tbe defendant moved tbe court to set aside the verdict and award a venire de novo for tbe reason that tbe verdict was against tbe evidence, and for tbe reason that the jury mistook tbe charge of tbe court, understanding tbe court, that if they found for tbe plaintiff, they must give him the whole sixty dollars and interest from the date of the transaction, and read the affidavits of two of the jurors who tried the case, which tended to substantiate the facts set forth in the motion.</p> <p>The court found the facts sworn to in said affidavits, so far as the affidavits state the understanding of the witnesses, to be true, but refused to set aside the verdict, — to which the defendant also excepted.</p> <p>A judgment or a decree in chancery merges the cause of action on which the same is founded, and purges usury as well as other defences which might have been pleaded therein. Steward v. Downer, 8 Vt. 320 ; Flint v. Shelden, 13 Mass. 443 ; Adams v. Barnes, 17 Mass. 365 ; Thatcher v. G'ammond, 12 Mass. 268.</p> <p>A payment after suit brought, wherein the defendant has a full opportunity to ple'ad and defend, has' the same effect in law as a judgment, and the money paid cannot be recovered back in assumpsit. Marriott v. Hampton, 7 T. Rep. 265 ; Brown v. McKinally, 1 Esp. 279 ; Harris v. Lloyd, 5 Mees. & Welsh. 432 ; Kent v. Athvnson, 6 Camp. 63 ; Gower v. Pophin, 2 Starkie 8 ; Knibls v. Hall, 1 Esp. 84 ; Fisher v. Samuda, 1 Camp. 190 ; Sheate v. Beale, 11 A. & E. 294 ; Bentley v. Mcrrse, 14 Johns. 468 ; Forbes v. Appleton, 5 Cush. 115 ; Benson v. Monroe, 7 Cush. 125 ; 4 Adol. & Ellis 858 ; 6 Nev. & Man. 324 ; McDowell v„ McDowell, 1 Baileys Eq. Rep. 224 ; also Thomphims v. Bcurrett, 1 Salkeld 22, which was for money paid upon an usurious contract.</p> <p>Suppose this to be treated as a voluntary payment, then it cannot be recovered back, and for this see Boston cmd Sandwich Glass Company v. Boston, 4 Met. pp. 182 and 183, and Brisbane v. Ducres, 5 Taunt. 152.</p> <p>The distinction between contracts mala in se and mala prohihita is now denied. Farmer v. Bussell, 1 Bos. & Pul. 296 ; Aubert v. Maze, 2 Bos. & Pul. 371; Clarh v. Shee, Cowper 197 ; Mitchell v. Cochbwrn, 2 H. Black. 379.</p> <p>cited Houghton v. Slack, 10 Vt. 520 ; and Minkler v. Estate of same, 16 Vt. 193, upon the point that the decision of the county court upon the motion for a new trial is not subject to revision in the supreme court upon a bill of exceptions.</p>

<p> Deed.' Construction. Estoppel. </p> <p>The description of a lot, in a deed, by reference to its number, is a description in its legal effect, according to the lines, of such lot, as surveyed and established in the original division of the town, and is just as definite, although not so particular, as it would be if the lines were given.</p> <p>Whore the defendant knew that the plaintiff proposed purchasing a piece of land adjoining the defendant’s land, and explained to the plaintiff where his, (the defendant’s,) line was, and the plaintiff made the purchase relying upon the defendant’s representations, it was held, that the defendant was estopped from disputing the title up to that line.</p>

Trespass on the freehold for breaking and entering the plaintiff’s close, and taking and driving away two heifers of the plaintiff. At the September Term, 1862, the plaintiff asked leave to file new counts for the same taking and driving away the heifers mentioned in the original counts, omitting the allegation as to breaking and entering the plaintiff’s close.

<p>[in- CHANCERY,]</p> <p> Homestead in. Lands owned in Gotmnon. </p> <p>The provisions of the statute relating to homesteads. (Acts of 3855, No. 34,) are sufficiently broad and comprehensive to include and establish a homestead right in lands in which the housekeeper or head of the family is the owner of an undivided share as a tenant in common with others.</p> <p>And the provisions of the statute are adequate to ascertain and set out the homestead right in cases where the title is thus special and limited.</p> <p>The incumbrance of the homestead right is attached not to the land, but to the husband’s estate in the land; and his widow and minor children are entitled-to a full homestead right in his moiety or share in the common property, The right does not attach to the whole of the real estate owned in common,</p>

This was art action of trover, commenced in February, 1856, and also an action on the case commenced in August, 1861. On motion the two actions were, by order of the court, consolidated and both tried together at the September Term, 18G2, by jury, under the plea of the general issue, Peck, J., presiding.

' AppfAl prom Probate.' The probate court accepted the report of commissioners, setting out .the dower and homestead» The County Court, Sept. Term, 1862, Peck, J., presiding, pro forma affirmed the decree of the probate court, — exceptions by the appellant. The facts are sufficiently stated in the opinion of the court.

Ejectment for lot No. 23, drawn to the right of the first, settled minister in Goshen Gore; plea, the general issue, and trial by jury, September Term, 1861, Peck, j. presiding. The plaintiff is administrator de bonis non on the estate of the intestate Lovina Wilson. The intestate died in 1851, and in March, 1852, a letter of administration on her estate was granted to David Holbrook.

Book Account. Tlte ease was referred to an auditor, who reported the facts as they appear substantially in the course of the opinion of the court. Upon the facts stated in the report, the court, at the September Term, 1862, Peck, J., presiding, rendered judgment for the plaintiff to recover the balance due for the seven thousand poles, — to which the defendant excepted. The plaintiff had released the defendant from the contract by failing to fulfill on his part.

This was a proceeding instituted in the county court on a recognizance in a bastardy case against the surety alone, to enforce the payment of a former judgment rendered against him by the supreme court. Trial by the court, March Term, 1863, Peck, J. presiding. The declaration set forth at length all the proceedings by which the plaintiff obtained such judgment; and these are .in substance stated in the opinion of the court.

Assumpsit on common counts. Plea, non-assumpsit and statute of limitations, on which issue was joined. Trial by jury, March Term, 1863, Peck, J., presiding. The plaintiff claimed to recover on the following order, to wit: “ M. J. Harrington, Esq., 72 Wall street, New York: Please pay Erastus Hubbard 'or his order one hundred dollars left with you by S. H. Mattison for me, and much oblige, “Yours, &e., A. A. Sweet.

The appeal was thken on the decision of the probate court in'refusing to revise the acconnt of a guardian on the application of a surety on the guardian bond.

Assumpsit on a promisory note. Plea, the general issue, with notice of special matter in defence. Trial by jury at the December Term, 1862, Aldis, J., presiding. The defendant signed the note as surety, and this was known to the plaintiffs. The note was dated July 22d, 1859, payable for the sum of $500. in one year to M. A. Frisbee, who married Levi S. Smith before the note became due.

Trespass to recover for ten tons of hay. Plea, the general issue. Trial by court, June Term, 1861, Peck, J., presiding. The facts in the case are fully stated in the opinion of the court. Judgment for the defendant, — exceptions by the plaintiff. The premises on which the hay in question grew, were conveyed to the plaintiff after the condition or law day in defendant’s mortgage had passed.

<p>[in chancery.]</p> <p> Parol Evidence. Mortgage. Homestead. </p> <p>B. owned a small farm which was mortgaged for three hundred dollars of the purchase money.' After his death the commissioners in setting off the homestead, did not set off the whole farm as a homestead subject to the mortgage, but set off a piece for a homestead without regard to the mortgage, and left a piece, upon the theory that that would pay the mortgage debt and leave the homestead clear. This last piece was more than sufficient to pay the mortgage. The widow, as administratrix, obtained license to sell this part to pay debts, and advertised it for sale, “ subject to the mortgage,” sold it as advertised and used the same phrase in the deed. Held, that the words “ subject to the mortgage," as used in the advertisement and deed, were of doubtful meaning, and susceptable of two interpretations, and parol evidence was admissible to show the sense in which they were used.</p> <p>Sense in which the words “ subject to the mortgage,” were used in this case,</p>

Audita Querela brought to set aside a levy on real estate upon an execution in favor of the defendant against the plaintiff. Plea, the general issue, and trial by jury, March Term, 1862, Poland, Ch. J., presiding. The only question which arose on the trial upon which any exception was reserved was as follows: It was proved that two of the appraisers appraised the equity of redemption, a portion of which was set off, at the sum of I18Í5.

This was an appeal from an order of removal on one Mary C. Jones. At the June Term, 1862, the defendant moved to quash said order.on the ground that the complaint to the justices alleged that said Mary C. Jones was chargeable to the said town of Hardwick, while the order of removal says she was likely to become chargeable. The court overruled the motion, — to which the defendant excepted.

<p>Assumpsit on a promissory note. This was an action against the bondsmen of one P. M. Willmarth,- collector of the town of Lyndon, for his neglect to pay over to the plaintiff certain money collected on tax bills committed to him. It appears that the parties in five suits upon separate notes, ponding in the county court, involving the same questions and facts, agreed to have them all referred to the Hon. Luke P. Poland, as referee, and that one report should apply in all the said actions. The facts reported by the referee are distinctly stated in substance in the opinion of the court. The cause was heard upon the report of the referee, and the county court, June Term, 1862, Poland, Ch. J., presiding, rendered judgment for the plaintiff according to the finding in the report. Exceptions by the defendants.</p> <p>cited Aiken v. Richardson, 15 Vt. 500 ; Foxcraft v. Nevens, 4 Me. 72 ; East. Dig. p. 617 ; 8 Mass. 275 ; 3 Md. 216 ; Rogers v. Hough, 4 Vt. 172 ; 2 Am. Lead. Cases 401 and 2.</p> <p>The constable need not be sworn to make his acts conclusive and binding. 15 Mass. 180 ; 6 N. H. 88 and 182 ; 3 N. H. 408. Also see, 2 Gray 298 ; 2 Pick. 223 ; 9 Met. 499.</p>

<p> Motion in Arrest. Misjoinder. Pleading. Defective Count. </p> <p>A motion in arrest of judgment will prevail on the ground that counts in case sounding in tort were joined with counts sounding in contract.</p> <p>When one of the counts in a declaration is defective, and the verdict general, judgment will be arrested. Barrett, J.</p>

Replevin,'for a tbree-year-old mare. Tlie defendant plead avowry, which was traversed by the plaintiff. The substance of the defendant’s plea of avowry is given in the opinion of the court. Trial by jury, June Term, 1863, Poland, Ch. Justice, presiding.

Replevin for four cows. The defendant 'filed an avowry justifying the taking and detaining of the said cows on the ground that they were taken doing damage in his enclosure ; also alleging in substance that there was no pound in the town of Orange, therefore, he caused them to he impounded in Ms own barn-yard, and that the plaintiff was notified thereof within twenty-four hours, and was notified to appear at the dwelling-house of the defendant within twenty-four hours to…

<p> Selectmen. Town Agent. Muniripál Corporations. </p> <p>The selectmen of a town bave tbe power to settle and stop a suit against a party, brought to recover a penalty for not removing an obstruction»out of the highway under an order of the selectmen.</p> <p>A vote of a town " to direct the town agent to manage the lawsuits as he thinks best,” would not limit the general authority of the selectmen over the subject.</p> <p>In general the record of a public meeting of a municipal corporation cannot be enlarged or altered by parol evidence.</p>

<p>Trespass on the Case to recover for an injury, wbicb the plaintiff alleged lie bad sustained by reason of the insufficiency o£ a highway, which it was the duty of the defendants to maintain.</p> <p>The case was referred to Wm. Hebard, who reported in substance, that the plaintiff resided in North Haverhill, N. H., and on the 7th day of November, 1860, had occasion to go to Wells River, a village in the town of Newbury, Vt., for a physician to attend upon his son; that he drove down near the bridge that spans the Connecticut river at the village of Wells River, and left his horse and walked across the bridge ; that after seeing the physician when he started to return, it was pitchy dark ; that there was a wall, from the end of the bridge extending along the side of the road and supporting the road; that the top of the wall was about-on a level with the road, and that it was several feet down to the water and rocks below; that there was a stick of timber laying on the top of the wall, about fifteen inches high; that there was no other railing on the wall — that the plaintiff in the darkness stepped off of this wall and received the injury complained of.</p> <p>The referee found as a fact that the town was in fault in not having a railing or other muniment where the timber was placed on the wall — and that the plaintiff exercised due care and dill" gence ; and is entitled to recover for his damages sustained.</p> <p>The further findings of the referee sufficiently appear in the opinion of the court.</p> <p>.Judgment was rendered for the plaintiff at the June Term, 1862, Orange County Court. Excptions by the defendant.</p> <p>The case was first argued at the Orange county, March Term, 1863, supreme court, and re-argued at the General Term, Montpelier, Nov. 1863.</p> <p>The question of care and diligence on the part of the plaintiff, is one of law for the court to find upon the facts reported by the referee. Nash v. Harrington, 2 Aik. 9 ; Barber v. Essex, 27 Vt. 62 ; Spencer v. R. R., 5 Barb. 337 ; Horing v. R. R., 13 ib. 9 ; Eascomb v. R. R., 27 ib. 221.</p> <p>As the darkness was one efficient and proximate cause of the injury, the town is not liable though the highway was insufficient. Moulton v. Sanford, Maine, July No. Law Reporter, 1863 ; 4 Gray 395.</p> <p>It is not for the court to say that, as a matter of law, the highway where the accident occurred, was sufficient. Willard v. Newbury,'22 Vt. 458 ; Gassidy v. Stoclcbridge, 21 Vt. 391.</p> <p>Will the court say that the plaintiff was not exercising ordinary care in traveling on foot without a lantern ?</p> <p>This is not a question of law, but of fact, proper for a jury.</p> <p>If a question of law it must be decided in favor of the plaintiff. Barber v. Essex, 27 Vt. 61; Bigelow v. Rutland, 4 Cush. 247; also see, Goggswell v. Lexington, 4 Cush. 307; Palmer v. Andover, 2 Cush, 600.</p>

<p>This was an action on a replevin bond. Judgment was rendered for tbe plaintiff at the January Term, Orange County Court, 1859, and the suit continued for the assessment of damages, and at the June Term, 1859, Aldis, J., presiding, there was a trial by jury on the assessment of damages.</p> <p>The jury returned a verdict for the plaintiff for the sum of $804.00, damages and costs, — exceptions by the defendants.</p> <p>The case is sufficiently stated in the opinion of the court.</p> <p>It is well settled that the payment of a debt by a person liable to its payment, discharges the debt against all the debtors. Hammatt v. Wyman et al., 9 Mass. 138 ; Brachett v. Winslow et al., 17 ib. 153; Sherman v. Boyce, 15 John. 443. An officer has no legal right or authority to maintain an action for property attached, unless he is liable therefor to the creditor or the debtor. Collins v. Smith, 16 Vt, 9 ; Goodrich v. Church, 20 Vt. 187. When a debt has been kept on foot for the benefit of the surety after the creditor has been satisfied, the debt has invariably been assigned, usually to a third person for the benefit of the surety, and not discharged. HEtna Ins. Co. v Wires et al., 28 Vt. 93 ; Low v. Blodgett et al., 1 Foster 121; McIntyre v. Miller, 13 M, & Welsby 724.</p> <p>A surety, who pays the debt to the creditor is entitled ,to be subrogated to all securities held by the creditor, and a lien by attachment is such a security, Edgerly v. Emerson, 3 Foster 555. It has been held in this state, in a case where the payment was made by the hand of another, that the surety became subrogated to the right created by the attachment, and might pursue those rights to satisfaction, in that suit, in the name of the creditor ; and that for that purpose the judgment was not^ extinguished. JEtna Ins. Go. v. Wires et al., 28 Vt. 93 ; Bradley v French, Sup. Ct. Windsor Co. never reported. And if the payment be made directly by the surety there can be no reason unless merely formal, for giving it any greater effect. The substantial object to be obtained is the protection of the surety. For this purpose the court will keep the judgment on foot, after it has been legally extinguished.</p> <p>The whole is an exercise of equitable power by the court of law, and the same power exists and should be exercised whether the judgment be paid directly by the surety or by the hand of another, when the object to be obtained is the same. 5 U. S. Dig. p. 815 pi. 52, 55; 15 ib. p. 513 pi. 10, 11, 12; 2 Am. Lead. Cases 272, 275.</p> <p>But the right of the' surety, in this case, to the avails of the property attached, became a vested and absolute right, independant of the creditor, by the judgment for the return of the property in the writ of replevin, and the return of the writ of return unsatisfied.</p>

Replevin for A Horse. Plea, the general issue, and trial by jury at the Caledonia County Court, December Term, 1861, Poland, Ch. J., presiding. The following facts appeared which were not controverted.

<p>Scire Facias upon S. 'W. Taylor’s recognizance as sheriff of the county of Chittenden for the year ensuing from December 1st, 1850. The defendants demurred to the plaintiff’s declaration, and the court at the April Term, 1862, rendered judgment pro forma for the defendant, — to which the plaintiff excepted.</p> <p>The declaration alleged in substance that S. W. Taylor formerly of Burlington in the county of Chittenden, now of parts unknown, was duly elected sheriff of said county on the first Tuesday of September, 1850, and that on the 4th of December, 1850, he as principal and John N. Pomeroy, William H. Wilkins, Jr., Albert L. Catlin and Rolla Gleason, as sureties, “personally appeared before the Hon. Israel P. Richardson, then first assistant judge, and first judge of Chittenden county court,” and entered into a recognizance before him as first assistant judge in the usual form for the said Taylor as sheriff, — which recognizance was duly executed and recorded ; that Rolla Gleason was appointed a deputy sheriff of said county and so remained while Taylor was sheriff; that he had put into his hands two writs, among others, against William P. Briggs, returnable to the Washington County Court at its November Term, 1851, one in favor of the National Life Insurance Company, demanding $1500., and one in favor of George W. Reed, demanding $3000. ; that on the 22d day of September, 1851, he served these writs by attaching the property of Briggs, consisting of hay, grain, &c., of which he neglected to take reasonable care, whereby the same suffered damage and loss; that thereupon Briggs brought an action against the sheriff Taylor for the misconduct, neglect and default, oh the part of his deputy, and recovered judgment there.on at the September Term, 1860, and the case having passed to the supreme court judgment was affirmed at the January Term, 1862, in the name of Joseph A. Wing of Montpelier, in the county of Washington, executor of the last will and testament of said Briggs, who had before then died, and the said Wing had been duly appointed his executor. The damages recovered were $11.88, and the costs were taxed at $219.71, and thereof execution was awarded to said Wing as such executor, which was duly placed in the hands of a proper officer to serve, who made return that he could find no goods, chattels, lands, or the body of the said Taylor, whereon to make service of said execution. And the sureties upon said recognizance were summoned to appear before the county court next, &c., to show cause wliy said Wing, executor, &c., should not have judgment against them for the amount of the judgment against Taylor. The judge signed the recognizance as follows: “Israel P. Richardson, first assistan judge of Chittenden County Court.”</p>

<p> Sheriffs. Surety. Privity. Judgment. </p> <p>The defendants were jointly and severally bound in a penal bond, conditioned to indemnify and save harmless the plaintiff, as sheriff of the County of Orange, from all actions, suits, troubles, costs, charges,-damages and expenses, on account of any malfeasance, misfeasance or nonfeasance of the defendant Godfrey, as deputy,sheriff. Judgment-was recovered in a suit against the sheriff for the neglect of his deputy in not paying over moneys collected on an execution. Held, that this judgment was conclusive as to the fact of the deputy’s neglect, not only against the deputy, who defended the suit, but also against the sureties, who had no notice.</p> <p>Where the sureties, by the express terms of their agreement, or by reasonable implication from the very nature and intent of their obligation, have stipulated to pay the damages and costs which may be recovered against their principal, or otherwise' to abide the decree or judgment of a court against the principal, then they are bound by the judgment, though "they have no notice of the suit.</p>

<p>Debt upon a bond. Two actions of debt were commenced and prosecuted against Henry M. Bates and his sureties upon the official bonds of said Bates as treasurer of the state. One action was in the name of the state of Vermont upon a bond executed by said Bates as principal and the other defendants as his sureties, and bearing date on the 14th day of October, A. D. 1859. The defendants filed a demurrer to the declaration. At the hearing on the demurrer, March Term, Washington County Court, Kellogg, J., presiding, the court pro forma, sustained the demurrer and adjudged the declaration to be insufficient. To this decision and judgment the plaintiff excepted.</p> <p>The second action was commenced and prosecuted by Benjamin W. Dean as secretary of state, in behalf of the state, upon a bond executed by said Bates as principal and the other defendants as his sureties, and bearing date on the 8th day of October, A. D. 1856. Each of the defendants filed pleas to the action, but by agreement the second and third pleas of the defendant, Henry Belknap, were treated as the several pleas of each of the defendants. To these pleas the plaintiff filed general demurrers. At the March Term, "Washindton County Court, Kellogg, J., presiding, the court pro forma overruled the demurrers and adjudged the pleas to be sufficient, and rendered judgment in favor of the defendants upon the pleas and demurrers. To this decision and judgment the plaintiff excepted.</p> <p>Both cases involved the same questions and were argued at the General Term at Montpelier, in November, 1862. The substance of the bonds, and the pleadings are stated in the opinion of the court, which was delivered at the August Term, Washington County Supreme Court, 1863.</p> <p>claimed that the action was properly brought in the name of the state and cited, State Treasurer v. Gross, 9 Vt. 289 ; Whitelaw v. Gohoon, i D. Chip. 295; Town of Arlington v. Hinds, ib. 431; Fairfax v. Soule, 10 Vt. 154; Hopldns v. Plainfield, 7 Conn. 286 ; Sumners v. Heai% 2 N. H. 39, (Gil. Dig. 82.)</p> <p>in the' action brought by the secretary of state.</p> <p>It will not be denied that Bates was treasurer de facto. People v. Collins, 7 Johns. 549 ; Adams v. Jackson, 2 Aik. 145 ; Brown v. Hunt, 37 Me. 423 and cases cited. Where a person has acted in an official capacity he cannot deny the validity of his own appointment. Bradford v. McIntosh, 3 T. R. 632 p. 635 n. a; Berryrrdn v. Wise, 4 T. R. 366 ; Gross v. Kaye, 6 T. R. 663 ; Johnston v. Wilson et al., 2 N. H., Woodbury, Ch. J., p. 206. An officer de facto may be punished criminally for official misconduct. 2 Bish. Crim. Law, 328 ; State v. McIntyre, 3 Ire-dell 171-4 ; State v. Sellars, 7 Richardson 368, 372 ; People v. Cook, 4 Selden 67 ; The King v. Holland, 5 T. R. 607 p. 623 ; State v. Maybwry, 3 Strobart 146. Bates’ receipt of money was binding on the state, and his every official act valid. Gavis v. Bobertson, 9 N. H. 579 ; People v. White, 24 Wend. 520. ' The parties acting under Ms authority and using his process would be protected by it. Weeks v Filis, 2 Barb. 321.</p> <p>It is the result of all the cases that the acts of officers de facto are always held valid, where the rights of third persons of the public are concerned. Apd for every purpose and incident except to protect himself, where the officer is a party and claims or justifies by virtue of his office, the proceedings of an officer de facto receive the same consideration as those of an officer de jure. Courser v. Powers, 34 Vt. 517 ; (Am. Law Reg. March, 1862, p. 268.) The People v Cook, 14 Barb. 259, et passim.</p> <p>And it has been directly decided that the bonds of an officer de facto are valid as to himself and his sureties. Green v. Ward-well, 17*'111.'278; United States v. Maurice et al., 2 Brockenbrougli C. C. R. p. 96 ; The Auditor v. Woodruff, 2 Pike’s 73 ; Nichols v. Taylor, 29 Vt. 104.</p> <p>It was not the fault, neglect,' or omission of duty, of any officer of the state, except Bates himself, that the oath was not taken and subscribed on the bond.</p> <p>The bond was conditioned that Bates should well and faithfully perform all the duties and requirements of the office of treasurer according to law, and is any requirement more imperative than that of the oath ? The signers of the bond then are estopped from taking any advantage by way of defence from a neglect they have themselves guaranteed the state against.</p> <p>Belknap’s third plea. Good faith is required towards sureties and here there is no omission of it. The plea does not assert that any fact material and known, was withheld from the sureties by any officer of the state. This was necessary to discharge them from liability on the bond. Barge on Suretyship, 219 ; 2 Story on Contracts, § 868, a. and notes (4th Ed.) ; Smith v. Bank of Scotland, 1 Dow Pari. Cases 272 ; Bailton v. Mathews, 10 Clark & Fin. 935; North British Ins. Co. v. Lloyd, 28 Eng. C. L. and Eq. R. 456. For these last cases cited, see Story’s Com. supra. Bryant v Crosby 36 Me. 562 p. 571; Franklin Bank v. Stevens, 89 Me. 532 p. 539 ; Franklin Bank v. Cooper, 36 Me. 179 ; Graves v. Tucker, 10 Smedes & Marshall 9 ; People v. Bussell, 4 Wend. 570; Taylor v. Bank of Kentucky, 2 J. J. Marshall 564; Pidcoch v. Bishop, 3 B. & C, 605. But this bond was prospective, and concealment as to a past defalcation would not have rendered this bond void as to future transactions. United States v. Boyd et al., 5 Howard 29 ; Franklin Bank v. Stevens, 39 Me. p. 532.</p> <p>As a demurrer reaches the declaration, we insist that the action is brought in the name of the proper party ; and that the declaration is good according to all the precedents and cases. Jansen v. OsVrander, 1 Cow. 676 ; Armine v. Spencer, 4 Wend. 406 ; Scott v. Bucher, 2 Md. 284; Pickering v. Pierson, 6 N. H. 559.</p> <p>in the action, State of Vermont v. Bates et ah, cited upon the point that no action <*ould be maintained, upon the bond declared on, in the name of the State, Anderson v. MaHindale, 1 East 498 ; Millard v. Baldwin, 3 Gray 484; Parker v. Oolcord, 2 N. H. 36-39 ; Watson v. Cambridge, 15 Mass. 287; Arlington v. Kinds, 1 D. Chip. 431; Fairfax v. Sowles, 10 Vt. 154 ; Northampton r.'Ftwell, 4 Gray 81.</p>

Assumpsit -upon, the common money counts. Plea, the general issue, and-trial by jury, April Term, 1862, Pieepoint, J., presiding. The plaintiff’s claim, was for contribution from the defendants, as co-sureties with him and Ovette Boynton for one Ed. Mills, upon the following promissory note : Hinesburgh, December 21, 1860. One month from date we jointly and severally promise to pay the Commercial Bank at their Bank in Burlington, three hundred dollars, value received.

The court of chancery decreed that the defendant Henry M. Winsor should pay to the clerk of court for the orator, Calvin French, on or before the first day of April, 1863, $150, with the interest thereon from the 8th day of August, 1855, together with the orator’s costs, and in default of such payment execution to be issued therefor.

Trespass for taking certain personal property. Plea, the general issue, with notice of the justification.* It appeared from the testimony detailed in the bill of exceptions, that the property taken was the stock and farming tools on the farm occupied by the plaintiff as tenant; and that the defendant’s justification was that he was deputy sheriff of the county of Orange, and took the property by virtue of a writ of execution.

Bill in Chancery. In January 1857, the trustees of the Western Vermont Railroad, who acquired an absolute title under decree of foreclosure expired, made a lease of the road to the Troy an'd Boston Railroad Company, for the term of ten years. A majority of the bond holders under that mortgage were dissatisfied with the lease, and desired to have it set aside, as they were advised it Was illegal.

Petition for the foreclosure of a mortgage. The Rutland and Washington Railroad Company, chartered in 1847, surveyed and located a railroad pursuant to its charter, and put it under contract for its entire completion, including land damages. The contractors were to receive in payment shares of the capital stock at par, for all but $100,000., which sum was to be paid in money.

Trespass on the Freehold. Plea, the general issue and a special plea justifying the trespass under an alleged private right of way, and also a highway. Trial by jury, April Term, 1862, Pierpoint, J., presiding.

Indictment for nuisance. Trial by jury, April Term, 1863, Pierpoint, J., presiding. The substance of the indictment is given in the opinion of the conrt. The court pro forma instructed the jury that if the testimony was believed by them they should return a verdict of guilty. The jury accordingly found the respondent guilty. The court also overruled a motion by the respondent in arrest of judgment for the insufficiency of the indictment.

Appeal erom Chancery. The bill alleged in substance, that the orator on or about the 13th day of June, 1843, borrowed of Gilbert Holmes, residing in the state of New York, the sum of $3,100., for which he gave his promissory note, dated May 1st, 1843, payable in two years, with interest annually; and also to secure the payment of this note the orator conveyed to said Gilbert by deed of warranty, dated the 13th day of June, 1843, Ms farm in Charlotte, of which he was then…

Assumpsit upon the following promissory note: $150. For value received we promise to pay the Farmers & Mechanics’ Bank one hundred and fifty dollars, ninety days from date, with use. Isaac C. Osgood, F. B. Hathaway. Burlington, August 1st, 1860. Plea, general issue and special notice. Trial by jury, April Term, 1863, Pierpoint, J., presiding. The plaintiff gave in evidence the note declared on.

Assumpsit, upon, a written order accepted by the defendant and payable to the plaintiffs.

Assumpsit on a promissory note, dated June 13th, 1859, for $200., signed by the defendants, and payable to the plaintiff twenty days afterdate. Trial by the court, April Term, 1861, Pierpoint, J., presiding. From the evidence adduced on trial, the court found the following facts: That Allen was surety for Humphrey on the note, and never had any benefit from, nor security in respect thereto.

This was an information in one count for a violation of the statute relating to the sale of intoxicating liquor. The information alleged that the respondent “ did at divers times sell, furnish and give away intoxicating liquor without authority, &c. The respondent demurred to the information. The court, September Term, 1863, Piereoint, J., presiding, overruled the demurrer, and adjudged the information sufficient, — to which the respondent excepted.

Complaint for a violation of the law prohibiting the sale of intoxicating liquor. The complaint alleged that the respondent “on the 30th day of August and at divers other times,-did'sell,” &e., and also alleged a former conviction in 1863, but omitted to state the month and day.

Bill for the foreclosure of mechanics’ lien. The bill set forth the facts creating the lien, and the steps taken by the orators, in compliance with the statutory requirements, to perfect their lien.

Trover. The parties in. this case mutually agreed to and admitted the following facts : The plaintiff, sheriff of Chittenden county, on the 9th of May, 1861, regularly attached the horses in question on a writ in favor of Wm. Scott against D. A. Danforth and E. M. Smalley, (the horses being Danforth’s property,) returnable to the September Term, 1861, of Chittenden county court.

This was a motion to set aside an execution issued upon a judgment from the Chittenden County Court, dated February 4th, 1863, on the ground that the judgment had been suffered to lie dormant for more than a year and a day.

This was an action to recover damages for an injury occasioned to the plaintiff through, the insufficiency of a bridge in Underhill. Plea, the general issue, and trial by jury at the September Term, 1863, Pierpoint, J., presiding.

Assumpsit in two special counts and the common counts. Pleas, the statute of limitations and the statute of frauds. To both of these the plaintiff replied, and to these replications the defendant Ladd demurred. The county court, September Term, 1863, — Aldis, J., presiding, — fro forma, sustained the demurrer, and held the declaration and replications insufficient. Exceptions by the plaintiff. The substance of the pleadings is given in the opinion of the court.

Trover for a quantity of hay, straw, corn and oats. Plea, the general issue and trial by jury, September Term, 1863. Aldis, J., presiding.

Assumpsit. This action was brought by the lessee upon shares pf the defendants’ farm, to recover for various articles furnished by the lessee, and for damages arising from alleged breaches of the contract between the parties. The declaration contained the 'common counts and three special counts Plea, the general issue and pleas in offset. Trial by jury, April Term, 1862.

<p> Gonti'act for Service. Time of Payment. </p> <p>Where a party contracts to work for another and fails to complete the stipulated term, but without the fault of the other, no time being agreed on for payment, the law implies that it is to be made at the end ®f the term, and the party has no right to demand or sue for it until that time.</p>

Assumpsit upon a guaranty for the payment of two notes. Plea, the general issue. Trial by jury, September Term, 1863, Peck, J., presiding. The notes were exeputed by W. C. & H. W. Wait, payable to the defendants. The pther material facts are stated in the opinion. •The court held upon the facts not in dispute that the defendants were entitled to a verdict and directed a verdict accordingly, —to which the plaintiffs excepted.

Assumpsit upon the following contract: “ IIydepark, July 17,1855. For value received we jointly and severally promise to pay C. B. Maynard, or order, any sum of money that James Morse may be indebted to said Maynard up to the 1st day of November next, said sum not to exceed five hundred dollars at any one time and interest. James Morse. Aaron Morse.” Plea, the general issue. Trial by jury, at the September Term, 1863, Aims, J., presiding.

<p> Contract: Administrator’s Fees. </p> <p>Iu consideration of a promise by tbe defendant to pay tbe plaintiff, who was a lawyer, extra for his services, tbe plaintiff undertook tbe administration of the estate of the defendant’s father, which involved matters of complication and difficulty. Held, that this was a promise to make compensation beyond the statutory fees, for services beyond the ordinary services of an administrator, and such agreement was a valid contract.</p> <p>The statutory prohibition and penalty for taking fees larger than is prescribed is applicable only to cases of officers such as sheriffs, or other persons serving process, where the statute provides the measure of fees to be taken, and prescribes by whom, they are to be paid? but does not apply to the case pf administrators.</p>

Trespass, for an assault and battery. The case was referred and the referees reported substantially as follows : That early in the Spring of 1860, a controversy had arisen between the plaintiff and Pliny Fassett, the defendant’s father, respecting a division-fence between the pasture of the plaintiff and that of the said Pliny, the latter claiming that he had for several years built about fifteen rods of fence that belonged to the plaintiff to build ; that this year the said…

Action of Account, commenced before a justice of the peace and brought to the county court by appeal. In the county court the defendant made a motion to dismiss the suit on the ground that the justice before whom the suit was originally brought had no jurisdiction, there being three parties to the suit. The county court at the September Term, 1862, — Aldis, J., presiding,— sustained the motion, and dismissed the suit, to which the plaintiff excepted.

Ejectment for a parcel of land in Highgate. Plea, the general issue, and trial by jury at the April Term, 1863, — Aldis, J., presiding. On the trial it appeared that the land in controversy was originally owned by one Wood, and that Mitchell Russell deceased, (of whose estate the plaintiff was administrator), and the defendant both claimed title to their farms, which adjoined, under said Wood.

Action on the -Case against the town of Fairfield for the neglect of its constable in not attaching certain property of one Patrick Rogers upon a writ in favor of James Rogers against the said Patrick, as directed by the plaintiff. Plea, the general issue and several pleas in bar.

Replevin for two horses and one .double-harness. Plea, the general issue, and trial by jury, at the April Term, A. D. 1862, Aldis, J., presiding. The property originally belonged to Albon M. Austin. The plaintiff, to establish her right to the same, showed a writ in her favor against the said Albon M., an attachment of the property by an officer, the sale of it upon the writ and the purchase of it by the plaintiff.

Account. The case was referred by consent of parties and tbe referees reported substantially as follows, to wit: That on the 23d day of October, 1855, the plaintiffs were and had been for about a month previous thereto, partners in the business of buying and sailing butter, cheese, beans and wool and other kinds op country produce, under the firm name of Soules '& Sherman, at St. Albans, Vt.; that on said 23d day of October, the defendant proposed, to the plaintiffs to enter…

Assumpsit. Plea the general issue and special plea, to which the plaintiff replied. To the plaintiff’s replication the defendant rejoined, to which the plaintiff demurred. Upon a hearing upon this demurrer, it was adjudged.that the rejoinder was insufficient. To which decision the defendant excepted. The facts of this case as shown by the pleadings are stated, in the opinion of the court.

Prosecutions for selling, furnishing and giving away intoxicating liquor contrary to law on a grand juror’s complaint.

Trespass, with a count in trover joined under the statute. The subject of the alledged trespass and conversion was a one horse lumber wagon of the property of the plaintiff.

Troyer for a pair of oxen. Pleas, — 1st, the general issue, 2d, statute of limitations, — .replication to the plea of the statute of limitations, — to which replication the defendants demurred. Upon the hearing of the case upon the demurrer, March Term* 1862, Kellogg, J., presiding, the court adjudged the replication insufficient, — to which decision the plaintiff excepted. The questions at issue are sufficiently presented in the opinion of the court.

Book Account. The auditor reported that some time prior to the last of August, 1860, the defendant’s bull was impounded ■ by one Matthew Fox in Chittenden; that said bull by some means escaped from the pound and got into the plaintiff’s pasture in Pittsford, about the 1st of September, 1860, and was kept by the plaintiff from that time until about the 20th of May following, when the defendant took him away.

Action on the case. The plaintiff’s writ in said action was returnable to, and entered at the September Term, 1863, Kellogg, J., presiding. The defendant, at said term, filed a motion in writing to dismiss the suit. On the hearing on said motion, it appeared that the adhesive revenue stamp affixed to the writ, had not been cancelled, and the court thereupon decided that the suit should be dismissed. To this decision the plaintiff excepted.

Assumpsit on a promisory note, originally commenced before a justice of the peace, but brought into the county court by an appeal taken by the defendant from the judgment of said justice. Pleas, (1), the general issue, and (2), that the cause of action did not accrue within six years, &c. Replication to the plea of the statute of limitations; and rejoinder, concluding to the country.

Trover for 180 cords of wood. Plea, not guilty; and trial by the court by the consent of the parties, September Term, 1863, — Kellogg, J., presiding. The court rendered a judgment in favor of the plaintiff, for •$104.50, damages, under a rule that execution should not issue on the judgment until the lien of the attachment on said wood, in the suit against the plaintiff should be satisfied or otherwise determined. Exceptions by the defendant.

Replevin for a cow belonging to the plaintiff taken by the defendant, February 18th, 1862.

<p>Book Account. An auditor was appointed wbo reporte4 substantially as follows:</p> <p>The plaintiff’s claim consisted of a single item amounting to $670.44. Some time in the year 1860, and previous to the month of May of that year, the defendant entered into a contract with the agents of the United States government to construct a marble sidewalk in the village of Rutland; the work to be done according to specifications, and to the acceptance of Ammi Young, the architect and agent designated by the government for that purpose, and payment to be made upon the acceptance thereof by Young; but whether said work was to be completed within a specified time, did not appear.</p> <p>In the latter part of May or early in June, 1860, the defendant entered into a contract with the Vermont Marble Com. pany, by which it was verbally agreed that said Company should furnish to the defendant the marble necessary to construct said sidewalk, on or before the 10th day of July, 1860.</p> <p>On the 6th day of August, 1860, the work had been completed by the defendant, and the Vermont Marble Company by their president, Parker, made their draft upon the defendant for the amount claimed by them upon said contract with the defendant, payable at sight, to the order of John B. Page, and delivered the same to Page, who thereupon, on the same day. presented it to the defendant for acceptance, to which request to accept, the defendant replied in the following words :</p> <p>“ I will pay when I get my pay from Uncle Sam,” meaning, in fact, when he got his pay from the United States government upon his contract to construct said sidewalk, and the same was so understood by Page.</p> <p>At the time the draft was given to Page, who was then cashier of the Bank of Rutland, the plaintiff was indebted to said bank to an amount exceeding the amount of said draft, which indebtedness had never been paid by the plaintiff, nor by any one in their behalf. The draft was received by Page -for the bank, as collateral security for the payment of said indebtedness. No credit had been given to the plaintiff for the amount of the draft or any portion of the same, but the draft had remained in possession of the Bank of Rutland from the 6th day of August, J860. Page made no express agreement with the defendant that he would await the payment of said draft until the defendant should receive his pay from the government, nor did he agree to apply the amount of said draft on the indebtedness of the plaintiff to the bank, unless the same should be actually paid. Page, soon after the 6th day of August, 1860, informed Parker in what terms and upon what condition the defendant accepted the draft. The draft has never been paid by the defendant, nor any part thereof.</p> <p>At the time the plaintiff and defendant made their contract, it was understood and agreed that the defendant should pay the plaintiff for the marble when the defendant should receive his pay from the United States Government, upon his contract with the latter to construct said walk. The defendant, at the same time, informed the plaintiff that he would be entitled to and should expect to receive his pay for constructing said walk, immediately upon the completion thereof, and it was in the contemplation of both the plaintiff and defendant that the job would be completed in the summer of 1860, that the work would be accepted by Young, and that the defendant would thereupon and without protracted delay receive his pay.</p> <p>Some time in the month of September, 1860, said walk was inspected by the agent of the government. The work was done according to the specifications furnished by the government to the defendant, and to the approval and acceptance of said agent, and thereupon the defendant was entitled to his pay from the government upon his contract. The government agent, however, desired certain alterations to be made in the curbing of said walk and in other respects, and a new and additional contract was entered into between the agent and the defendant, by which the defendant, for additional compensation, agreed to make alterations, and the work was performed and completed by the defendant sometime in the fall of 1860.</p> <p>Soon after the walk was laid, but the precise time did not appear, the water began to pere.olate and run under, and so injured the saíne that in the course of a few months it became apparent that it would be necessary to relay it, and accordingly the defendant, for additional compensation, was employed by the government to relay said walk. It did not appear when this agreement was entered into, but the work of relaying the walk was performed by the defendant in the summer of 1861, and it was accepted by the government.</p> <p>The defendant was paid by the government upon his three several contracts aforesaid, in one gross sum, amounting to over twenty-nine hundred dollars, on the 19th day of December, 1861. This suit was commenced on the 26th of August, 1861.</p> <p>On the auditor’s report the county court, September Term, 1862, — Kellogg, J., presiding, — rendered a judgment in favor of the plaintiff for the sum of $665.94, with interest théreon, as damages. Upon the question as to the effect of the facts reported in respect to the draft, on the plaintiff’s right of recovery in this action, the decision of the court was pro forma.</p> <p>To the decision of the court in rendering the said judgment the defendant excepted.</p> <p>1. The draft operated as an assignment of the funds in the hands of the defendant, and his promise to pay on time, has the effect of rendering him liable to the bank for the amount, according to the terms of his promise. Their cause of action against him was complete, the instant he received his pay from the government. Harringtony. Rich, 6 Vt. 666 ; Blin y. Pierce, 20 Vt. 25 ; Stiles v. Farrar, 18 Vt. 444; Dickinson v. King, 28 Vt. 380 ; Morton v. Naylor, 1 Hill 583 ; Bellows v. Bingham, 28 Vt. 243. The debt of the defendant due the plaintiff, was transferred upon a consideration, as the case shows.</p> <p>2. The draft drawn and acceptance of it, extinguished the original claim of the plaintiff, and bound the defendant to pay according to the terms of his acceptance.- Wageslow v. Keene, 1 Strange, 214 ; Masony. Hunt, 1 Douglass, 297 ; Julian v. Sherbrook, 2 "Wilson, 9 ; Smith y. Abbott, 2 Strange, 1152 ; Miln v. Prest, 4 Camp. 393 ; Byles on Bills, 257, 258, 252, note 1; Walker y. Sherman, 11 Met. 170 ; Fisher v. Beckwith, 19 Vt. 31; Fairlee v. Herring et al., 13 C. L. 78 ; Ward y. Allen, 2 Met. 53 ; Parkhwrst y. Dickerson, 21 Pick. 307. A promise to accept an existing bill is an acceptance, and binds tbe acceptor. Wynne v. Baihs, 5 East, 514; Bank v. Archer, 11 M. & W. 389.</p> <p>Tbe fact tbat the draft was taken as collateral to tbe debt of the bank against tbe plaintiff, cannot effect tbe result of tbe case.</p> <p>Tbe debt bad become due when tbe suit was commenced. Tbe defendant’s contract with tbe government was performed to their acceptance as early as September, 1860 ; and it is evident tbat tbe defendant could and would have received payment of tbe government at that time but for tbe delay voluntarily given by tbe defendant in consequence of bis two subsequent contracts for an alteration of tbe work. Tbe original cause of action on tbe book account, did not become merged in tbe draft. Hutchins et al. v. Olcutt, 4 Vt. 549 ; Follett & Bradley v. Steele, 16 Vt. 30.</p> <p>The offer of tbe defendant has never been acted upon by any of tbe parties, as an acceptance. The bank immediately gave notice to tbe plaintiff and thereby continued their indebtedness to the bank in force. Tbe defendant has never paid or offered to pay; and tbe plaintiff has sued on tbe original account, Bayley on Bills, 183 ; Sprout v. Matthews, 1 Term, 182.</p>

Book Account. On the auditor’s report at the September Term, 1862, Kellogg, J., presiding, the court rendered a judgment fro forma in favor of the defendant. To the decision of the court in rendering the judgment the plaintiff excepted. The facts as found by the auditor sufficiently appear in the opinion of the court. I. The action is an equitable one, and raises the question upon the special circumstances reported,— to whom does the money belong?

Assumpsit, commenced by tbe plaintiff against Philander Salmon and Reuben R. Thrall. As to the defendant Salmon, the return of service on the writ in said action was non est inventus, et nulla Iona; and the suit thereupon proceeded against the defendant Thrall alone.

Appeal erom Chancery. The history of this case so far as material, will be found in the report of the case between the same parties, ante, p. 489. After the decision of that cause in the supreme court, determining the amount of injunction damages to be recovered, and the basis of apportionment of them between the respective defendants, the case was remanded to the court of chancery and a final decree perfected.

Action on the Case for deceit and false warranty on the sale of certain real estate by the defendant to the plaintiff. The defendant demurred generally to the whole declaration. Upon the hearing on the demurrer, June Term, 1862,— Kellogg, J., presiding, — the court adjudged the declaration to be insufficient, and rendered a judgment in favor of the defendant. To the said decision and judgment the- plaintiff excepted.

Book Account. At the February Term, 1863, — Kellogg, J., presiding, — judgment was rendered upon the report of the auditor, for the plaintiff. Exceptions by the defendant^ The facts found by the auditor are sufficiently stated in the opinion.

Prosecution for bastardy. Plea not guilty, and issue joined thereon. Trial by the court at the June Term, 1862, Kellogg, J., presiding, and judgment rendered for the defendant, — to which exceptions were taken. The facts of the case sufficiently appear in the opinion of the court. When the marriage took place the complaint was dead. It was in the wife’s name; there was no longer any complainant to prosecute, — no Nancy Gordon in being, — no bastardy, and no bastard child.

Action on the case for certain alleged libelous matter contained in a letter written by the defendant, and addressed and sent to Austin P. Graham. Plea, the general issue, and trial by jury, at the June Term, 1862, Kellogg, J., presiding.

Bill in Chancery. The bill alleged that the orator had a debt against the Rutland & Burlington Railroad Company, and that he prayed out a writ of attachment thereon, returnable to the September Term of Windham County Court, 1855, and caused the same to be secured by attaching said real estate as the property of said Rutland & Burlington Railroad Company, and that he subsequently recovered judgment in said suit for the sum of $2,812.90. damages and his costs, and that…

Bill in Chancery.* The substance of the allegations and the proof is sufficiently set forth in the opinion. The bill was dismissed, and the orator appealed.

<p>Trustee Process. The disclosures of the several trustees and the other material facts are set forth in the opinion.</p> <p>At the April Term, 1862, Barrett, J., presiding, judgment was rendered against each trustee in favor of the plaintiff, — to which the claimant excepted.</p>