Volume 37 — Vermont Reports

<p>Appeal from an order of removal of H. N. Aldrich and family from Dummerston to Newfane. It was alleged in the order that said Aldrich was likely to become chargeable to Dummerston as a pauper. All that appeared in a statement of facts agreed upon by the parties in respect to said allegation was that the grand-mother and father of said Henry N. and some others of his blood relations, had • been insane ; and the said Henry N. was insane at the time of said order of removal, and had shortly before been a patient at the Vermont Asylum, but is now, and has been for some months, sane. The other facts agreed to are set forth in the opinion.</p> <p>At the September Term, 1861, Barrett, J., presiding, the court rendered judgment for the defendant, — to which the plaintiff excepted.</p> <p>I. It is admitted by the case that the legal settlement of Aldrich at the time of the making of the order, was in Newfane. The wife, taking the settlement of her husband, was also settled in Newfane. The facts furnish “ a present fair probability that he would soon become a charge upon the town.” Londonderry v. Acton, 8 Vt. 122.</p> <p>II. But the defendant town contends that Aldrich was at the time the owner of a freehold estate, from which he could not be removed ; and stands upon the case of Londonderry v. Acton.</p> <p>(a.) The decision in that case was not well considered, and ought to be revised ; or at least ought, not to be extended.</p> <p>That decision was based upon Magna Charta and the English decision construing that charter. By that charter, as construed, no freeholder can be disseized of his freehold, except for crime, and then by verdict of jury, in due course of law. The English courts considered an order of removal from the homestead, to be a disseizin, — a conclusion founded more upon the peculiar state of the times, than upon any legal principle,</p> <p>(6.) By our constitution and laws, every pauper likely to become chargeable is liable to be removed, and freeholders are not excepted, and our laws must prevail when they clash with foreign laws. When we made our constitution we engrafted into the declaration-of rights, a part of the 29th chapter of Magna Charta, but carefully left out the words “ Nullus liber Homo disseisiatw de libero tenemento,” &c. Dec. Rights, 24. By using a part and omitting a part, the part omitted is excluded.</p> <p>III. It would seem, from the reading of the Charta, that the pauper must be seized of such a freehold, that the order of removal will operate a disseizin thereof. To remove him from his dwelling house would be ejecting him from his freehold and a disseizin under the Charter. But removing a pauper from one parish to another works no diseizin of his out lands, on which he does not reside, for it is no eviction therefrom. Hence the pauper must reside on Ms frank tenement in order to be irremovable therefrom. We think the decisions in England establish this doctrine. Stanlock v. Bampton, 19 Vin. 371; Granby v. Musley, 3 Burns, 414 ; Ashbrittle v. Wiley, 19 Yin. 372 ; Bwrclear v. Woodbury, 19 Yin. 373 ; Aythrop Booding v. White Booding, 3 Burns 424 ; Leeds v. Blaekfordby, 3 Burns 425 ; Bex v. Martly, Smith R. 345 ; Sandwich v. Heler, Burr. Set. Cas. 7 ; Bex v. Dunchurch, do. 553 ; Harrows v. Edgworih, 19 Vin. 371.</p> <p>The same doctrine is held by the decisions in this State. Londonderry v. Acton, 3 Yt. 122 ; Middletown v. Pawlet, 4 Vt. 202 ; Broolcfield v. Hartland, 6 Vt. 401; Walden v. Gabot, 25 Yt. 522.</p> <p>The cases of settlement have no application to the present case, for here the settlement in Newfane is admitted.</p> <p>IY. The paupers were not seized of a freehold in the town of Dummerston. For the dower of Mrs. Aldrich has not been assigned. 1 Cruise Dig. 159 ; Windham v. Portland, 4 Mass. 384.</p> <p>By Magna Charta she might remain on her deceased husband’s estate during quarantine of forty days ; so by statute of Mass. So by our statute, during settlement of the estate, or one year, the time allowed to settle the estate. But the privilege of residence gives no estate to the widow. It is merely a provision to save the widow and children from want.</p> <p>Her right of dower is a mere chose in action and does not become an estate until dower assigned.</p> <p>Y. The widow before dower assigned has no estate to communicate to her second husband to enable him to gain a settlement or become irremovable. Bex v. Pamswick, Burr. Set. Cas. 783 and Mansfield’s note ; Bex v. Horthweald Basset, 2 B. &C. 724; Bex v. Worth Gurry, Doug. 770 n.; 2 Bott. 477 ; Bex v. Oanford Magna, 2 Har. Dig. 5343 ; Bex v. Axbridge, 2 Har. Dig. 5343 ; Bex v. Oheford Fit'/jpcáne, do. do. ; Bex v. Barnard Oastle, 2 Ad. & E. 108 ; Wind-ham v. Portland, 4 Mass. 384.</p>

<p>Action on a bond given by the defendants to the probate court on one of the defendants taking an appeal from an order of the probate court appointing commissioners to make partition of certain real estate. The bond was given for the prosecution of the appeal and to pay intervening damages. The case was referred, and the facts found by the referee are set forth in the opinion.</p> <p>The county court at the September Term, 1863, Barrett, J., presiding, rendered judgment, pro forma, on the referee’s report, for the plaintiff to recover nominal damages. Exceptions by the plaintiff.</p> <p>insisted that the commissioners could lawfully proceed, on the 3d of May, 1859, to make partition of the lands in question. Fletcher et al. v. Fletcher, 29 Vt. 98 ; Curtis v. Beardsly, 15 Conn. 522. This action is properly brought in the name of Benjamin F. Stockwell, the husband of Sallie Stockwell. 1 Chitty on Pleadings 19, and cases there cited; 1 Bright’s Husband and Wife 64, and cases there cited ; Holton v. Whitney, 28 Vt. 448. The damages proved are intervening damages within the meaning of the bond, and as such are recoverable in this suit. Sargeant et al v.. Sargeant et al., 20 Vt. 297. The plaintiff’s mode of proceeding is the one especially provided by statute, is the only remedy known to the law, and a fair construction of the statute provision entitles the plaintiff to recover. G. S- pp. 426-7, and 360, § 27.</p>

<p>The court, upon the statement of facts agreed to by the parties, at the April Term, 1863, Barrett, J,, presiding, rendered judgment, pro forma, for the defendant. Exceptions by the plaintiff. .</p>

<p> Pleading. Taxes. Town. Jurisdiction. Appeal. </p> <p>A plea by tbe town that the money which the plaintiff is seeking to recover, was collected of him by the constable, named, upon a rate bill and warrant duly issued, &c., would not give the county court appellate jurisdiction, where it did not exist upon other ground.</p>

Book Account. The auditor allowed the plaintiff’s account as presented. The defendant presented an account against the plaintiff, consisting of seven items, the two last of which were disallowed. The other five the auditor found were for trees and timber which the defendant claimed the plaintiff cut on the defendant’s land in the winter and spring of 1855.

<p> Administrators. Fraud. </p> <p>If an administrator neglects to seek redress from persons wrongfully withholding the property of the estate which he represents, being deterred therefrom by the wrongdoers’ giving him a bond of indemnity against all acts or omissions to act as administrator, he is guilty of collusion with them, and liable for the amount lost to the estate by his bad faith.</p> <p>If an administrator, after a thorough investigation of the matter, honestly though erroneously believed that certain notes of the intestate were given away by him before his death, and for this reason did not attempt to obtain them or their proceeds, he would not be liable for the amount so lost to the estate. A.liter, if he is wanting in due diligence in his investigations.</p>

<p>Assumpsit. The declaration contained a special count covering the whole cause of action, and the common counts. Plea, the general issue. Trial by jury, December Term, 1862, Barrett, J., presiding.</p> <p>The special count and the plaintiff’s evidence, together with a claim of the defendant’s counsel' upon the trial, and the charge in respect thereto, are substantially set forth in the opinion of the court.</p> <p>Verdict for the plaintiff. Exceptions by the defendant.</p> <p>maintained that the plaintiff could have successfully resisted payment of the note to the defendant on the ground of the want of consideration, and having voluntarily paid the same, he cannot recover back the same money in this suit; and that the court should have charged as requested, and that the charge as given was erroneous ; and cited upon the point that there was no consideration, Mills v. Wyman, 3 Pick. 207; 1 Pars, on Cont. 356-7-8-9, and note h; Burnet v. Bisco, 4 Johnson 235; Geer v. Archer, 2 Barb. 420 ; and upon the point that the money paid voluntarily cannot be recovered back in this action, Stevens v. Head, 9 Vt. 174.</p> <p>maintained that there was no error in the charge of the court 'of which the defendant has reason to complain ; that there was no infirmity in the note for want or failure of consideration ; that the plaintiff could not have defended against the note on the ground that the defendant had promised not to call on him for payment until after his son had paid the plaintiff, because the note was conclusive as to the time when it fell due ; that the plaintiff was not obliged to defend on the ground of avoiding circuity of action, because if he had succeded on the first note, he would still have 'had a cause of action for the price of the colt, and on the second, for the price of the colt and the amount paid on the first note ; and that if the court should hold that there was no consideration for the note, then the plaintiff can recover on the common counts.</p>

<p>. This was an action on the case, brought to recover the penalty under the statute, § 6, ch. 104, Gr. S., providing for the restraint of rams. Plea, the general issue, with special notice of settlement of the matters embraced in the suit.</p> <p>The plaintiff proved that in August, 1857, he had twelve sheep which were in his pasture, and that on the 27th day of the same August, he found the defendant’s ram with his sheep in said pasture, and out of the enclosure where said ram belonged, and that he took up this, ram, and also two other rams belonging to one Pitkin, which had got out of the enclosure with the ram of the defendant, and which wei’e also with his sheep.</p> <p>The defendant proved that in the spring of 1857, he and one Pit-kin, the owner of two rams, hired one Paschal P. Shattuck to pasture their rams after the first of August, on the account of the respective owners, and not on joint account.</p> <p>The defendant also offered evidence, under the general issue, to prove that the fence between the plaintiff, Town, and Shattuck had been divided for many years, and each had kept up his own part; that in the spring of 1857, they also agreed to keep up their respective portions ; that in the season of 1857, Shattuck told Town he was going to put rains into the pasture, and wanted he should see that his part of the fence was properly up and all right, and that he had fixed his part; that Town told him he would do so ; that he had fixed it and it was all right, and that he would risk the rams getting out so far as his part of the fence was concerned; that he need not trouble himself about his part of the fence ; that Shattuck afterwards spoke to him a second time, telling him he had put rams in there, and Town repeated the same assurance ; that Shattuck went through and examined the fence and saw nothing but that it was safe and all right; that the rams in fact got out through Town’s part of the fence, in consequence of his neglecting to put up and keep the fence as he had agreed ; that Shattuck relied on Town’s assurance in this respect.</p> <p>The court ruled that the evidence, if admissible at all, was properly admissible under the general issue, but excluded it pro forma on the ground that it was incompetent as evidence in the case, and not proper evidence to be considered by the jury, — to which the defendant excepted.</p> <p>There was also evidence in the case on the part of the defendant tending to prove that Pitkin, after the three rams had been taken up by the plaintiff, went to the plaintiff and settled for the penalty, and for the damage of all three of the rams, and paid therefor the sum of $5.50.</p> <p>To contradict this testimony the plaintiff proposed to call his wife, Martha Town, as a witness, and as preliminary to doing so, he testified that a few days after Mr. Pitkin had taken away his rams, as already stated, he, the plaintiff, was going from home to be gone a week;-that on the morning of his leaving he told his wife that if Lamphire should come for his ram during his absence not to let him have it, unless he brought a writing from him (the plaintiff) that he had settled for it.</p> <p>The plaintiff then offered his wife as a witness. The defendant • objected to her being admitted. The objection was overruled, and she was admitted, to which the defendant excepted. She testified that the defendant came for the ram during said week of her husband’s absence and took it away ; that he broke open the stable where it was confined, without permission, and against her orders and efforts to prevent him from taking it away ; also that she told him that her husband directed her not to let him have the ram till it was settled for.</p> <p>It was proved that all three of the rams were taken up by the plaintiff at the same time, and from the same enclosure.</p> <p>The defendant insisted, and requested the court to charge the jury :</p> <p>That there can be but one penalty of $5. for any number of rams, escaping at the same time from the enclosure of the keeper to the enclosure of the owner of sheep.</p> <p>That if one be the keeper of any number of rams, belonging to different owners, the person, into whose enclosure the rams escape, cannot sue each owner for a separate penalty for each ram. That he may recover one penalty, for the whole, from the keeper, or he may sue any one of the owners, and recover one penalty, and that will be a satisfaction for the whole.</p> <p>That if the jury find in this case, that Pitkin settled for the pen alty and paid $5., or more, the plaintiff cannot recover. That he can only recover in this case, by satisfying the jury that the settlement was not for the penalty, but was for the forfeiture, and only for Pit-kin’s two rams.</p> <p>That if Mr. Shattuck was hired to keep or pasture Mr. Lamphire’s ram, and the ram escaped from Shattuck’s pasture into the enclosure of the plaintiff, without any fault on the part of,Mr. Lamphire, the defendant, then this action cannot be maintained.</p> <p>The court held, and charged the jury conformably to said requests, except in the following respect: The court charged, that if Shattuck was procured to pasture said rams for and on account qf the respective owners thereof, and had them in his custody only in so pasturing them, he was not so the keeper as to preclude the plaintiff from recovering the penalty of the defendant as the owner ; that if they found that said rams were so in the custody of said Shattuck when they escaped into the enclosure with the sheep of the plaintiff, the fact that Pitkin settled with the plaintiff in respect to his own rams would not constitute a defence in this suit unless the jury should find that, in point of fact, that settlement by Pitkin with the plaintiff embraced the defendant’s ram as well as Pitkin’s.</p> <p>To the refusal of the court to charge as requested, and to the part of the charge above stated, the defendant excepted. Yerdict for the plaintiff.</p> <p>cited upon the point that the defendant’s evidence, which was excluded, should have been received, Hides et al. v. Gram et al., 17 Yt. 455 ; Strong v. Ellsworth, 26 Yt. 378 ; Cummings v. Webster, 43 Maine, 194.</p> <p>cited upon the negative of the same point, Brinsmaid, Adm’r, v. Mayo, 9 Vt. 31; Isaacs v. Clark, 12 Vt. 692; Howard v. Mitchell, 14 Mass. 241.</p>

<p>This was a prosecution by indictment for selling and furnishing intoxicating liquors contrary to law. Plea, not guilty. Trial by jury, May Term, 1863, Barrett, J., presiding.</p> <p>The government gave evidence tending to show, that the respondent is the keeper of a public house at White River Junction, in Hartford, in said county, called the “ Junction House,” and that in said house there is a room, adjoining the bar room, called by the witnesses the cloak room, and that in a cupboard in this room bottles containing spirituous liquors were kept, with glasses, &c.</p> <p>The government introduced several witnesses who testified in substance, that they had drank liquor in said room in company with and upon the invitation of others, but they did not know who paid for the liquor, or whether it was paid for, and did not know who waited upon them. Some of the government witnesses also testified that they had been asked to drink by gentlemen in their rooms in the respondent’s house, and had drank liquor in their rooms, but did not know who provided the liquor. None testified to any instance of sale or furnishing of liquor to the persons who drank, by the respondent in person. One witness testified that he had drank ale in said house.</p> <p>The respondent offered on cross examination of witnesses introduced by the government, to ask if it was not the habit of gentlemen in traveling about the country, to carry spirituous liquors in bottles with them. This was obj ected to by the prosecution, and excluded by the court, to which the respondent excepted.</p> <p>The government called Jasper Hazen, the officer who served the subpoena on the government witnesses in this case, and stated that they expected to prove by him that two of the respondent’s clerks, Andrews and Tinkham, whose names were in said subpoena, to be summoned by him, had been got out of the way so that he could not summon them. To this the respondent objected, but the court overruled the objection and permitted the witness to testify, to which the respondent excepted. The witness testified that he heard that Andrews and Tinkham were not at the Junction, and he did not look for them ; that he understood that they had gone to Boston — did not learn how long they had been gone — understood a short time. To this testimony as given the respondent excepted.</p> <p>The respondent requested the court to charge the jury, 1st — That the respondent could not be found guilty under this indictment unless the jury found that he either sold or furnished the intoxicating liquors himself, or that the same was sold or furnished by some clerk, servant, or agent of his. 2d — That the respondent could not be found guilty undér this indictment for selling or furnishing ale, as the same is not “ intoxicating liquor ” within the meaning and intention of the law. 3d — That in the cases where two or more persons drank together, one of them calling for the'liquor and asking the others to drink with him, that this constituted but one act of selling or furnishing, and but one offence.</p> <p>The court declined to charge the jury as requested in the second and third requests.</p> <p>As to the second request, the eourt told the jury that the jury in criminal cases are judges of the law as well as of the facts, and would leave it for them to say, whether ale is intoxicating liquor or not, within the prohibition of the statute.</p> <p>The jury on returning their verdict stated that they found four of-fences for furnishing ale.</p> <p>The charge of the court as to the third request, is fully stated in the opinion.</p> <p>To the charge on the subject of the second and third requests the respondent excepted.</p> <p>The jury returned a verdict of guilty of thirty-six offences.</p> <p>maintained in respect to the third request, that the charge of the court was entirely erroneous as to the number of offences for which the respondent could be convicted.</p> <p>The law imposes a penalty against any person who 11 shall sell, furnish, or giveaway any intoxicating liguor in violation of this act.” Sec. 5. By Sec. 18, “ every distinct act of selling, furnishing or giving away may he proved, and the court shall impose a fine for each offence.” Acts of 1852, p. 19.</p> <p>What is a “ distinct act of selling, ScJ” What is “ each offence ?” Does not the dealer sell it to the person who calls for it f Is not the offence spoken of in the statute in furnishing it to each person ? The person calling for the liquor pays for it, and the transaction is wholly between him and the dealer. The person calling for the liquor may do what he pleases with it; he can treat a friend with it, and it is he who furnishes it to the third, person; not the dealer.</p> <p>maintained as to the third request, that: If Barron was the owner of the liquor when it was poured from the bottles, then most certainly each distinct act of pouring into a separate vessel or glass for sale or furnishing, was a distinct offence against the law.</p> <p>Who is guilty of the several furnishings or sales when ten men come up to his counter or cup-board and drink, if not the respondent? Who else furnishes the liquor. Who else receives the pay? And does it make any difference in the eye of the law or in Barron’s profits whether one man calls for ten glasses of rum for ten different people and pays for the ten, or whether each of the ten calls for the liquor at the same time, and each man pays' for his glass? Barron or his cleric malees the delivery in each and all of the cases ; and on Barron’s premises.</p>

<p> Parimership. </p> <p>P. was one of the originators, and had for several years been an active member, and one of the directors, of a mercantile association, called the N. E. Protective Union, Div. 172. Finally he moved away and ceased to do any business with the association, and supposed he had ceased to be a member of it, but notified no one of his purpose to withdraw. Held, that as between himself and the other members he had not ceased to be a member of the division.</p> <p>But if ho had, still if he was a member when the dealings between the plaintiffs and the division began, and the plaintiffs knew it, they were entitled to treat him as a member until they were notified thathe had withdrawn.</p> <p>The death of a member would not work a dissolution of the association, as it was designed in its organization to have perpetuity.</p>

<p> Statute of Limitations. Construction. </p> <p>Under the second clause of § 15, ch. 63, 6. S., the time of the debtors residence out of the State, is deducted in computing the period of the statute of limitations, although he was absent from and resided out of the State when the cause of action accrued.</p> <p>Construction given to 4 15, ch. 63, 6. S.</p>

<p>This was an appeal from an order of removal of a pauper from Sharon to Strafford. The latter town filed a plea in abatement on the ground that the copy of the order given to the officer to serve on the overseer of the latter town, had no certificate of the justices upon it, other than their signature to the order, that is, to the copy of the order, and that the copy left with the overseer of Strafford contained no copy of any such certificate. Whereupon the town of Sharon filed a motion for leave to amend.</p> <p>The court at the December Term, 1863, Barrett, J., presiding, pro forma overruled the motion, and rendered judgment on the plea that the order of removal be quashed, — to which the town of Sharon excepted.</p> <p>We insist that when the justices made out a copy of their order of removal and signed the same at the bottom it was a certifying within the meaning and intention of the law. It is a certificate by them signed that they have made the order of removal as therein stated. What object can there be for them to sign it twice? The case is entirely different from that of an officer serving process; then he signs the name at the bottom of the copy, and‘then “ attests” that it is a true copy. Statutes are to be construed according to the intention of the legislature. It could not have been the intention that there should be a separate certifying. Byegate v. Wardsboro, 30 Vt. 746 ; Gatlin v. Hull, 21 ib. 152 ; Dutton v. Vt. Mut. F. Ins. Co., 17 ib. 369; Henry v. Tilson, 17 ib. 479. The statute is but directory, and the omission of it cannot vitiate the proceedings.</p> <p>II. The court erred in deciding that they had no power to allow the amendment. This is a general power incident to all courts in any proceedings which may be pending in court. The fact that it strikes back to the order of removal by the justices does not change it, as was held in Barnet v. Concord, 4 Vt. 564, 571.</p> <p>The amendment asked for should not be granted. The amendment of writs and other process furnishes no analogy. This is a statutory proceeding and a strict compliance with the provisions of the statute has always been required. Barnet v. Concord, 4 Vt. 564 ; Georgia v. St. Albans, 3 Vt. 42 ; Wheelockv. Lyndon, 6 Vt. 524.</p>

<p> Husband and Wife. Mortgage. Chancery. </p> <p>A married woman contracting a debt for her own benefit, may make it an express charge on her separate estate, anther mortgage for that purpose will be supported in equity.</p> <p>A husband may by his acts, as well as by express agreement, divest himself of his marital rights in his wife’s property so as to make it her separate estate.</p> <p>A wife left her husband in 1847. In 181.2, property was devised to her, which she occupied and controlled without any interference of her husband until the present time. In 1857 she made a mortgage upon her estate to secure payment of a debt for necessaries for the support of herself and children, and in 1858 she obtained a divorce and made a second mortgage on the same property. Held, that though as between her and her husband the devise to her lacked the affirmative words necessary to constitute a separate estate in the strict meaning of the terms, yet under the circumstances it was to be considered her separate estate as between her and the first mortgagee.</p> <p>Such first mortgage may also be supported in equity on the principle that where a married woman trades as a ferns sole, or obtains credit on her separate estate, a court of equity will hold the proceeds of the business or the estate subject to the claims of her creditors.</p> <p>Or on the principle that the estate of a married woman living apart from her husband is liable for her maintenance.</p> <p>The second mortgage having been made with notice of the circumstances, has no equity to come in before the first.</p> <p>The statutes of Vermont, in regard to the conveyance of married women’s estates, do not affect the jurisdiction of the courts of equity over the subject of separate estates.</p>

<p>Debt on judgment alleged to have been obtained by Joseph Hubbard in his lifetime, against the defendants and one Edward Hobart, since deceased, as joint contractors, at the June Term of Addison County Court, A. D. 1855, to which the defendant Dubois pleaded, first, that there was no record of said judgment remaining in said court; second, that the alleged judgment was rendered without any service of the writ upon him or upon his property, or without trustee process and without any notice whatever to him, either by publication or otherwise, of the pendency of any suit, &c.; to which the plaintiff replied, first, that there was a record of, &c., and second, that the said Dubois appeared by attorney, &c. And the defendant, Dubois, made rejoinder, upon which issue was joined. Trial by the court by agreement of parties, June Term, 1863, Peck, J., presiding.</p> <p>On trial the plaintiff introduced in evidence a duly certified copy of the record of said judgment, which after setting forth the writ and return — the return showing a service upon Harvey Lamson and E. Hobart only — proceeded as follows ; “And at the same term come the said defendants by their attorney, J. P. Kidder, and by consent of parties it is ordered by the court that the defendants do account with the plaintiff, and that John Pierpoint be appointed auditor, to bear, examine and adjust the accounts of the parties, and make report thereof to this court at their next term, &C. ■***'* And now, to wit., at the term last aforesaid, come the said parties by their said attorney, and also comes the said auditor and makes report as follows: The undersigned auditor reports that he notified the parties before him at, &c., * * *' * to audit their accounts as per rule and notice annexed; at which time and place he attended, and the said parties before him, in person and by counsel, — and the auditor finds that there is due from the defendants to the plaintiff, to balance accounts, the sum of $458.51.” J. Pier-point, auditor.</p> <p>No question was made but that J. P. Kidder was a duly enrolled attorney and counsellor. The defendant, Dubois, offered in evidence a certified copy of docket entries in the cause in which said judgment was obtained, made at the December Term of said Addison County Court, A. D. 1854, and at the June Term thereof, 1855 ; also of the report of the auditor, rule, citation and officer’s return thereon, which was objected to by the plaintiff, but was received and read, subject to objection, — to the admission of which the plaintiff excepted.</p> <p>The defendant Lamson was defaulted, and judgment rendered against him in this case. No service of the writ in this case was made on the defendant Newell, neither was there any appearance for him. The court decided that upon the face of the record introduced by the plaintiff, it did not appear that Kidder appeared for and in behalf of said Dubois, nor that any judgment was rendered against said Dubois. The court did not treat the copy of docket minutes as any part of this case. Thereupon the court rendered judgment iü favor of the defendant Dubois, — to all which decisions the plaintiff excepted.</p> <p>maintained that the record showed an appearance for Dubois by attorney. Blood v. Crandall, 28 Vt* 396. An appearance must be taken to be general unless the contrary appears. Again; the defendants in the original action were sued as “joint contractors,” and it must be presumed they were such, as the case shows nothing different. Then if jointly liable the judgment must have been against all or none. The defendants upon whom process was served must have understood that Kidder appeared for the other parties defendants in the suit, as well as for themselves, else they would never have submitted to a judgment against them j neither would the court have rendered the judgment they did, had they not had the same understanding.</p> <p>maintained that the copies of papers offered by the defendant were admissible in evidence, because they were a part of the record. 3 Co. Lit. 322 ; 3 and 4 Black. Com. Appendix; 1 Green. Ev. § 521; 28 Vt. 397. Moreover the court in deciding the case treated those copies as out of the case ; and so regarding it, there was no error in the judgment. The return is copied into the record and shows no service on Dubois. So he was out of the case — was not a defendant. Society, Sc., v. Ballard, 4 Vt. 119 ; Olarh v. Freeman, 5 Vt. 122. The court had no jurisdiction over him. Shinner v. McDaniels, 4 Vt. 418. And he would not subsequently be made a party but by some act shown by a positive and unequivocal statement in the record. The word defendants in the sentence, “At the same term come the said defendants,” in the record meant those only named in the return as having been served with process. In cases where parties have been bound by the appearance of an attorney there was some kind of service as to them, or the record would admit of no other construction.</p>

<p>Action on the case for damages alleged to have been caused to tbe plaintiff by an excavation made by tbe defendant upon bis land, lying adjacent to that of tbe plaintiff, and for other damages. Plea, tbe general issue. Trial by jury, January Term, 1863, Peck, J., presiding.</p> <p>Tbe plaintiff and defendant were adjoining land owners. A few years previous to tbo grievance complained of tbe plaintiff or bis grantors erected some buildings on his lot, tbe underpinning wall of which, on one side, was built on tbe division line, sunk some two or three fee.t below tbe surface, and built about as far above tbe surface.</p> <p>In tbe years 1858-9 the defendant erected a building on bis lot opposite tbe plaintiff’s buildings, and excavated for a cellar and underpinning wall close up to tbe said wall of tbe plaintiff.</p> <p>Tbe plaintiff’s evidence tended to show that tbe defendant dug his trench about three feet below tbe bottom of tbe plaintiff’s wall, and that without giving any notice to the plaintiff, and thereby caused bis said wall to settle, and his barn to sag and reach over a little ; that be notified tbe defendant of the effect of bis digging, and they agreed to build a joint wall together, sufficient for both buildings to rest upon, and proceeded under said agreement.</p> <p>The defendant’s evidence tended to show that be gave notice to tbe plaintiff before be began to dig, and that tbe sagging of tbe plaintiff’s buildings was caused by digging tbe trench for their joint wall, under their said agreement. The plaintiff’s evidence also tended to show that when his kitchen was built it was necessary to fill in dirt on the inside of the underpinning wall to the kitchen, and the effect of the defendant’s said digging was to cause the wall to this kitchen to settle so that this dirt ran over the wall on to the defendant’s land.</p> <p>It further appeared that the land descended from the plaintiff’s kitchen door towards the defendant’s lot, so that the surface water flowed on to the defendant’s land. Not far from the division line between the lots the defendant had a well which supplied Ms house with water. The plaintiff and his tenants were in the habit of throwing filthy water from their kitchen under the line fence and on to the defendant’s land, and the same flowed on the defendant’s land to his said well and rendered the water in it unfit for use. To prevent this injury the defendant put up a board and filled in with clay, so as to turn off such filthy water from his well, and in doing so caused the surface water that naturally flowed on to his land from the plaintiff’s land, to turn off into a well of the plaintiff, to its injury. The defendant’s evidence tended to show that he notified the plaintiff and his tenants of the effect of their slops upon his well, and requested them to desist, but they still continued the practice.</p> <p>The plaintiff’s counsel requested the court to charge the jury that if they found that the defendant’s digging was done without notice to the plaintiff, and caused injury to the plaintiff, the defendant was liable for the injury; that if the plaintiff’s land slid off on to the defendant’s land, either under or over the plaintiff’s underpinning wall, in consequence of the defendant’s excavation, and that this was made without notice to the plaintiff, then the plaintiff is entitled to recover.</p> <p>The *court told the jury that if the defendant supposed, or had any reasonable ground to suppose that his digging would cause any damage or injury to the plaintiff’s wall or building, or if a prudent and skilful man in such matters would have supposed, or had any reason to suppose such digging would be likely to have that effect, then the defendant was bound to give such previous notice to the plaintiff that he was about to dig there in the manner he did dig, and that in such case a neglect to give such notice would make the defendant liable for all the injury done by the digging he did before such notice to the plaintiff. That otherwise the defendant would not be liable from the mere fact alone of not giving notice.</p> <p>To the neglect to charge agreeably to such request, and to the part of the charge above detailed, the plaintiff excepted.</p> <p>The substance of the charge in respect to the defendant’s turning the surface water on to the plaintiff’s land so as to injure his well is given in the opinion of the court. To this also the plaintiff excepted. Verdict for the defendant — exceptions by the plaintiff.</p> <p>maintained that there are two classes of cases in the books. (1.) Where an adjoining proprietor digs upon his ground so near his neighbor’s land as to disturb his walls and buildings. (2.) Where by such digging he removes the support of his neighbor’s soil so that it slides off.</p> <p>In the first case he is bound to exercise skill, care, and prudence in the manner of his digging, and if a prudent and skilful man would have reason to apprehend danger, he would be bound to give his neighbor reasonable notice of his intention to dig, that he may protect his property from injury.</p> <p>But the latter case does not involve a question of negligence at all. The right of the plaintiff to his soil is absolute, and so his right to support for it against his neighbor’s soil, and the defendant had no right to disturb it in any way. It is not a question of reasonable suppoi’t. Jones v. Bird, 5 B. & Ad. 837, (7 E. C. L. 455) ; Wyatt v. Harrison, 3 B. & Ad. 870, (23 E. C. L. 380) ; Dodd v. Holme, 1 Ad. & El. 493, (28 E. C. L. 240) ; Massey v. Goyder, 4 C. & P. 161, (19 E. C. L. 456), are cases of the first class.</p> <p>Richardson v. Vt. C. R. R. Co., 25 Vt. 465 ; Thurston v. Hancock, 12 Mass. 220 ; Humphries v. Brogden, 12 Ad. & El. 739, (64 E. C. L. 739) ; 2 Hill, on Torts 9 and 10 ; Sutton v. Clarke, 6 Taunt. 44.</p> <p>The defendant had no right to obstruct the waste water so as to turn the surface water back on to the plaintiff’s land to his injury.</p>

Ejectment for lands in Bradford. Plea, the general issue. Trial by jury, January Term, 1863, Peck, J., presiding. The defendant’s title depended upon the validity of the levy of an execution issued upon said lands .upon a judgment rendered in favor of the defendant against G. and E. Prichard, June 25th, 1860, for $2065.08, damages, and $5.44, costs.

<p> Statute of Frauds. Agency. </p> <p>D. sold to H. a quantity of apples, and sent several barrels more than H. agreed to take, with notice that what H. could not sell, D. would take back. H. afterwards concluded to take all that D. had sent. They then agreed upon the price of the whole, before unsettled, at $75., and that this sum should remain in the hands of H. as part payment for a lot of poultry which D. was then negotiating to purchase, and finally did purchase of H. Held, that the contract for the poultry was binding within the statute of frauds.</p> <p>Where an agent becomes personally responsible for goods purchased for his principal, the latter cannot claim that their relations as principal and agent are changed thereby.</p>

Book Account. The auditor reported that the plaintiff’s account consisted of one item of $26. for a marble scroll. It appeared that the defendant and his wife called at the plaintiff’s shop to purchase a grave stone or monument for their daughter, a girl of about seven years of age, who had recently died.

<p>Book Account to recover for pasturing one hundred sheep through the season of 1856. It appeared from the auditor’s report that the plaintiffs Corliss and Clark, being owners in common of a farm in Bradford, leased the same to the plaintiff Fuller in the spring of 1856, at the halves, and that the said Fuller made the agreement with the defendant to pasture said sheep. The other material facts found by the auditor are set forth in the opinion. The defendant insisted before the auditor that the action could not be sustained by these plaintiffs jointly, and the auditor so decided. Upon the facts found by the auditor in his report, the court at the June Term, 1863, Peck, J., presiding, rendered judgment for the plaintiffs, — to which the defendant excepted.</p> <p>maintained that upon the facts found by the auditor the defendant is entitled to recoupe or offset his damage to the amount of the plaintiffs’ claim, and cited Dyer v. Jones, 8 Vt. 205 ; Goslin v. Hodson, 24 Vt. 140 ; Merrow v. Huntoon, 25 Vt. 9; Hurlbut v. Chittenden, 26 Vt. 52; Patrick v. Putnam, 27 Vt. 759 ; Hubbard, v. Belden, 27 Vt. 645 ; Bellows v. Bingham, 28 Vt. 243.</p> <p>This suit should have been in the name of Fuller alone. Hurd v. Darling, 16 Vt. 377.</p> <p>The defendant was right in taking the sheep away when he found the pasturage insufficient.</p> <p>maintained that the judgment of the county court is conclusive in respect to the question of joinder of the plaintiffs, and cited Birchard & Moulton v. Palmer, 18 Vt. 203 ; Wills et al. v. Judd, 26 Vt. 617 ; Harrington v. Edson, 24 Vt. 555 ; Abbott v. Camp, 23 Vt. 650. If the pasture failed in consequence of a drought, it was an act of God that the plaintiffs were not bound to anticipate in making the contract.</p>

<p>Indictment for perjury in two cases, involving tbe same questions, and heard together. The respondents filed general demurrers to the indictments.</p> <p>The indictments arc sufficiently set forth in the opinion of the court.</p> <p>At the January Term, 1863, the court. Peck, J., presiding, overruled the demurrers, and adjudged the indictments sufficient, — to which decision the respondents excepted.</p> <p>I. It does not appear by these indictments that the evidence given by the respondents, and upon which perjury is assigned, was given or taken to bo used in any judicial proceeding then pending. This is matter of substance, and should distinctly appear, stated with the highest degree of certainty. State v. Chamberlin, 30 Vt. 559; 1 Chitty’s Crim. Law, 172; 3 Arch. Crim. Prac. and PI. 591-2-3; Queen v. Overton, 4 Ad. & El. N. S. 83, (45 E. C. L. 83) ; Regina v. Bishop, 1 C. & M. 302., (41 E. C. L. 169).; Regina v. Pearson, 8 C. & P. 119, (34 E. C. L. 643).</p> <p>In the case of Sleeper, the indictment alleges that uEliza E. Carpenter, of, Sc., brought a petition of divorce, addressed to the supreme court, Sc.” The phraseology made use of in the case of Magoon is that “Eliza E. Carpenter, of, Sc., petitioned the supreme court next, Sc., setting forth, Sc.”</p> <p>These words are not sufficient to constitute a distinct and positive averment, that at the time of the taking of the depositions of these respondents, there was' duly and legally pending in the supreme court a libel for divorce, in which Eliza E. Carpenter was libellant and Lorenzo D. Cai’penter was libellee.</p> <p>“An indictment must be good without the help of argument or inference.”</p> <p>The want of a distinct averment that the libelee had been summoned in due form to answer to the libel, and that the same was then pending, renders nugatory the statement which follows, that “ it became necessary to take the testimony of witnesses in the premises.”</p> <p>II. It does not appear by either of these indictments in what cause, proceeding or trial, or whether in any, it became material to show ltiohether said Sleeper ivas at the house of said Carpenter on the 2d day of November, 1859, and whether he there had. any conversation with said Carpenter in the presence of certain other persons.” The indictments only say that “ it became and was material to show whether,” &c. They should aver that it was material to the trial of said libel for divorce. All the precedents are so. 2 Chitty’s Crim. Law. 350, etsey,)A Arch, Crim. Prac..&. PI. 598; Commonwealth v. Knight, 12 Mass. 274 ; Bex v. Goodfellow, 1 C. & M. 569, (41 E. C. L. 311) ; Bex v. Bartholomew, 1 C. & K. 366, (47 E. C.L. 367) ; Bex v. Semins, 9 C. & P. 786, (38 E. C. L. 455).</p> <p>What is intended here as an averment of materiality is of no avail for that purpose, because it does not connect the evidence with any judicial proceeding; but it must control the question as to what part of the evidence stated perjury is attempted to be assigned.</p> <p>Perjury may be committed in giving evidence material to a collateral issue, but in that case the indictment must show how that issue became material, as well as how the evidence became material to that. Commonwealth v. Knight, 12 Mass. 274.</p> <p>cited C. S. 554, § 6 ; 2 Chitty’s Grim. Law, 385, precedent, and 306-7; Wharton's Crim Law, § 2263, and cases cited; Wharton’s Precedents, (577,) note “e.”</p>

<p> Trustee Process. Judgment. Promissory Note. Fraud. ConiracU Pleading. </p> <p>A judgment in a trustee suit in favor of a claimant 'docs not determine what, if anything, is due the claimant from the trustee; but when the judgment is rendered the trustee is discharged, and the claimant is left to pursue his remedy against him the same as though no trustee suit had ever been brought, and tho trustee lias tho same right to defend.</p> <p>The plaintiff had possession of certain goods and chattels belonging to C. as a more cover to defraud the creditors of C. by keeping said property beyond their reach by attachment; and for further protection conveyed tho same to the defendant and took his note therefor under an agreement between them and C. that the defendant should dispose of this property and pay the avails thereof over to C. and that tiiis should operate as a payment and discharge of the note. IMd, that a performance of tho contract bv tho defendant would constitute a defence to an action on the note by the plaintiff.</p> <p>Such a contract need not be in writing to mako it valid, consequently it need not be so alleged in a pica.</p> <p>In this state it is not only necessary to demur specially to the defect of duplicity, but the particular in which the duplicity is claimed to exist, must be set out.</p>

Debt upon an award. The court rendered judgment For the plaintiff upon the award, on an agreed statement of facts. The award and submission were given in evidence, in connection with the agreed statement of facts.

Assumpsit upon the common counts for goods sold and delivered. Plea, the general issue. Trial by jury, September Term, 1862, Peck, J., presiding.

Book Account. There was no question in respect to any item of the plaintiff’s account, except the third. The auditor reported as to this item in substance that in the fall of 1860, the defendants, as trustees of the Vermont Central Railroad, by their agent, E. F. Perkins, contracted with the plaintiff to take of him the hemlock, spruce, ash and basswood lumber that was on some twelve acres of land the plaintiff was to clear the next winter.

Action on the case to recover damages for an injury to the plaintiff, his horse, wagon and harness,, and for an expenditure of time and money for the care, nursing and doctoring of the plaintiff’s wife for an injury and sickness, occasioned by the insufficiency and want of repair of a highway in the town of Barre, and also for the loss of her services and society. Plea, the general issue. Trial by jury at the September Term, 1863, Kellogg, J., presiding.

Assumpsit. The facts pertaining to the point decided are set forth in the opinion. The case was discontinued upon motion by the claimant, at the March Term, 1864, Peck, J., presiding. Exceptions by the plaintiff.

Action on the Case for a breach of warranty and for false representations in the exchange of horses. Plea, the general issue. Trial by jury, March Term, 1864, Peck, J., presiding. The plaintiff’s declaration alleged a warranty of soundness in the horse except a bunch on one hind leg, and that the horse was unsound in other particulars.

Debt upon a Judgment. There was no plea filed in the ease, and no question was made, but that the record of the justice of the peace, before whom the declaration alleges the recovery to have been had, shows such judgment as is alleged. It was a conceded fact in the case that the record’showed such judgment by confession.

Trover, with a count in trespass for a package of money. On the trial tlie plaintiff filed the following new count by leave of the court: “ Now comes the plaintiff in the above entitled cause, and in a plea of the case declares and says that heretofore, to wit: on the 7th day of December, A. D. 1861, the defendant, who was a jobman in Montpelier, in said county, undertook safely, securely and promptly to deliver a certain package of money, the property of the plaintiff, from…

Assumpsit on a promissory note. Trial by court at the March Term, 1864, Peck, J., presiding. The writ was dated August 22d, 1862, on which service was accepted the same day. The suit was entered at the September Term, 1862, the death of the plaintiff suggested, an appearance entered for the defendants by counsel, and the case continued to March term, 1863, when E, W. Huntley, executor of the plaintiff, entered to prosecute at the March Term, 1863.

The facts are sufficiently stated in the opinion of the court. At the March Term, 1860, Aldis, Ch., the court of chancery decreed that the bill be dismissed with costs. This decree was upon a full hearing of the case, but was strictly pro forma and made to enable the parties to have a decision in the supreme court, before incurring the delay and expense of an accounting. Appeal by the orator. 1. Did the deed and bond of the 8th or 9th of January, 1853, constitute a mortgage ?

Action on the Case. Plea, the general issue. Trial by the court, September Term, 1863, Peck, J., presiding. The facts are fully set forth in the opinion of the court. Judgment for the plaintiff.

Indictment for the murder of Mary E. Loomis at Worcester-. Plea, the general issue. Held: issued a precept for the arrest of the respondent Carr, and the same was delivered to O. L. Watson, the constable of Worcester, who took with him one A. C. Crain, and arrested Carr, and brought him with them to Worcester.

Trespass for taking certain cattle belonging to the plaintiff. Plea, the general issue and special pleas in bar, justifying the taking as collector of school district No. 1, in Jay. Trial by jury June Term, 1863, Poland, Ch. J., presiding. The facts are fully set forth in the opinion. Verdict for the plaintiff under a pro forma direction of the court. Exceptions by the defendant.

Trustee Process. The commissioner appointed to take the disclosures and proofs in this case reported that it was proved that the plaintiff then residing at St. Albans, on the 1st day of November, 1858, sold to the defendant’s son and one Graves, then doing business as merchants at South Troy under the style of Kifk & Graves, a quantity of goods, and received in payment the notes of Kirk & Graves to the amount of $2500., signed by Reuben JGrk as surety of that date.

The plaintiffs’ declaration .contained counts in trespass and trover for the taking and conversion of a quantity of brandy and rum. Plea, the general issue with notice that the defendant, as deputy sheriff, attached said liquors as the property of Augustus Osgood, on a writ in favor of Lyman Lumbard and sold the. same on an execution.

Assumpsit in the general counts. Plea, the general issue. Trial by jury, September Term, 1863, Poland, Ch. J., presiding. The plaintiffs’ evidence tended to prove that the defendant was duly appointed agent of the town of Lemington for the sale of spirituous liquors, from the first Monday in May, 1861, to the first Monday in May, 1862.

<p> Ejectment. Administrators Lien. Adverse Possession. </p> <p>The grantee of an heir holds the land, as the heir did, subject to the administrator’s lien; hut, even in a case where it is shown that administration was granted upon the estate, it will he presumed, after the lapse of nine years without any interference of the administrator, that his lien has been satisfied, especially when the party denying the right of the heir’s grantee is a stranger to the title.</p> <p>The plaintiff was in possession of the land in controversy claiming to have bid it off at a tax sale. W. subsequently entered into possession, claiming to have paid the tax and to have a receipt therefor. They then agreed that W. should remain in possession the rest of the season, and if he did not produce said receipt he should quit, which he did in the fall without producing the receipt. Held, that W.’s possession was not in subjection to the plaintiff’s title, therefore it broke the continuity of the plaintiff’s possession.</p> <p>A legal estate obtained by fifteen years’ adverse'possession cannot pass by mere verbal surrender.</p> <p>Where the rights of both parties stand upon mere possession not yet ripened into a perfect title, he who has the prior possession has the best right; but if he abandon and surrender it to the adverse party he cannot afterwards set it up.</p>

<p> Trustee Process. Assignment. Mortgage. Fraud. </p> <p>The alleged trustees had taken bills of sale of certain property from the principal debtors, to secure them for debts which the principal debtors owed the trustees, and for liabilities the trustees had incurred in their behalf; but in lieu of these bills of sale, and for better security, the trustees took a deed of the principal debtors’ real and personal property, conditioned to be void if the said indebtedness should be paid and the trustees indemnified for their liabitities. The trustees were to take full possession and control of the property, collect back accounts and demands, all of which were sold to the trustees and included in the Conveyance, convert the personal property into money and pay off said indebtedness and liquidate said liabilities, and wore to have the use and occupancy of all the real estate and fixtures for the purpose of completing jobs on hand, &c. Held, that this was not an assignment within the meaning of the statute, and therefore not rendered void by reason of non-compliance with its requirements.</p> <p>There may be a transfer to a party to secure a liability incurred by him for the assignor or grantor, as well as to secure a debt due from the latter to the former.</p> <p>The instrument in this case is a mortgage, and the power of sale contained therein does not essentially change its character.</p> <p>Nor does the provision that the mortgagees are to have possession have that effect.</p> <p>Nor would a subsequent change in the management of the property from what was designed, for the purpose of realizing more from it, render the deed void under the statute relating to assignments.</p> <p>The deed was valid as to the creditors of the principal debtors, and the mortgagees could not be held as trustees either for moneys in their hands or that came to them, or for the property in their hands under the assignment, until their debts against the principal debtors were paid.</p> <p>In order for the Creditors to get the surplus, if any, in the hands of the trustees, they must redeem the property by' paying the lien of the trustees.</p> <p>If one of the trustees owed the principal debtors on book account at the time the deed was made, the same having been transferred to the trustees in the deed, they will hold it like other accounts until their lien is discharged.</p>

<p> Pleadings. Account. Partnership. Arbitration. </p> <p>Where the parties to an action of account had, previous to the suit, adjusted any portion of their account, the defendant is not bound to plead specially as to that portion, that he has accounted. The whole account may go before the auditor, and the defendant has the benefit of the evidence so far as it shows he has accounted.</p> <p>If there was a single item left unadjusted, the defendant cannot plead in bar of a judgment to account, that he does not owe the plaintiff.</p> <p>A general settlement of a partnership account is a sufficient consideration for a withdrawal of a disputed item by one qf the parties, to render the final adjust Blent binding. ,</p> <p>The transaction in this case at the meeting of the parties and arbitrators, tras a settlement and payment by the parties, and not an award of arbitrators.</p>

<p>Assumpsit for breach of contract in not taking a quantity of pot atoes agreeably to the contract between the plaintiffs and defendant. Plea, the general issue, and trial by jury, June Term, 1864, Aldis, J., presiding.</p> <p>A question raised on trial in respect to certain evidence was abandoned in the supreme court.</p> <p>It appeared on trial that about the 18th day of January, 1859, the defendant ^ made a verbal contract with the plaintiffs to purchase of them five car loads of potatoes, being fifteen hundred bushels, to be delivered on the cars at Stratford depot, N. H., as soon as the defendant should call for them, and as soon as he could get them away, sometime during the winter. Five or six hundred bushels were then in the store cellar of the plaintiffs and were examined and approved by the defendant when he made the contract. The rest the plaintiffs were to buy and have ready for the defendant as soon as he should call for them. The defendant was to take them as soon as he could. No memorandum of the contract in writing was made or signed by either party. It appeared that soon after the contract was made, or after the first car load was taken, potatoes fell in the market. On the 27th day of January, 1859, the defendant wrote to the plaintiffs directing them not to purchase any more potatoes till they should hear from him.</p> <p>It also appeared that at the time the letter was received the plaintiffs had some seven hundred or eight hundred bushels of potatoes on hand, and had made contracts for the delivery of other potatoes. About the 16th of February following the defendant took four hundred bushels, and afterwards in May sent a check on Boston to pay for them at the contract price ; which were all the potatoes that were ever taken; but at that time when the defendant took the four hun■dred bushels on the 16th or 17th of February, 1859, he took them upon the contract, and then and afterwards treated the contract as b eing in force as originally made, and at no time objected that potatoes 'had been bought after the letter of January 27th was received, and in March wrote to the plaintiffs to sell the potatoes for him.</p> <p>The defendant never gave to the plaintiffs any order or authority to purchase any more potatoes upon the contract after the letter of January 27th, nor did the plaintiffs agree to vary the contract and comply with the request in that letter.</p> <p>The plaintiffs had not purchased enough potatoes to fill the contract when they received the letter of January 27th. The terms of the contract did not appear in the correspondence between the parties, subsequent to the making of the contract. The request of the defendant to the court and the charge in respect thereto are fully set forth in the opinion of the court. Verdict for the plaintiffs. To the refusal to charge as requested, and to the charge as given, the defendant excepted.</p> <p>claimed that the defendant was entitled to have the charge as requested for the reason that when the letter was written there was no contract that the law recognized or upon which he was liable, and if the plaintiffs after that purchased any potatoes he Was not bound to take them, unless by subsequent agreement, or unless he became bound by subsequent acts. Ide & Smith v. Stanton, 15 Vt. 685; Brown on Frauds, pp. 353 and 355,</p> <p>maintained that the contract was rendered binding in law upon both parties by the acceptance of a part of the potatoes by the defendant. G. S. p. 453, § 2; Green v. Merriam, 28 Vt. 801; Spencer v. Hale, 30 Vt. 314 ; Gorham v. Fisher é Boberts, 30 Vt. 428 ; Packer v. Steward, 34 Vt. 127 ; and that the charge of the court was correct. Blish et al. v. Granger, 6 Vt. 340 ; Hammond v. Buchnaster, 22 Vt. 375 ; Fletcher v. Cole, 23 Vt. 114'; Paige v, Fullerton Woolen Go., 27 Vt. 485.</p>

<p>[in chancery.]</p> <p> Chancery, Practice. Adverse Possession. </p> <p>Where the answer is not responsive to the biil, or sets up affirmative allegations in opposition to, or in avoidance of, the plaintiif's demand, and is replied to, the answer is of no avail in respect to such allegations, and the defendant is as much bound to establish the allegations so made, by independent testimony, as the plaintiff is to sustain his bill.</p> <p>The oratrix claimed title by adverse possession. The defendant, to avoid this title, set up the right of the town to the proprietary right of the first settled minister, and that he entered upon the premises under direction of the town as one of the selectmen. Held, that this was not responsive to the bill, and not being sustained by proof, the defendant failed to connect himself with the title of the town, therefore he could not stand upon that title.</p>

<p>Assumpsit in the general counts for property sold the defendant, a part of which belonged to the estate of Samuel Aiken. Plea, the general issue and a declaration in general assumpsit in offset. Trial by jury, June Term, 1864, Poland, Ch. J., presiding.</p> <p>It appeared that the plaintiff and his brother, Solomon Aiken, were joint administrators of the estate of Samuel Aiken at the time said property was sold to the defendant, but that most of the business in selling said estate was done by the plaintiff. These items were'of such amount that if disallowed the balance would be with the defendant.</p> <p>It appeared that the plaintiff alone sold the property belonging to Samuel Aiken’s estate to the defendant.</p> <p>The defendant claimed that the plaintiff could not recover in his own name for property sold the defendant belonging to said estate, and insisted that recovery for the same could only be by joint action in favor of both administrators ; but the court overruled the objection and charged the jury that if the plaintiff made the sale of such property himself, doing the business alone, and the co-administrator, Solomon, had nothing to do with such sale, the plaintiff might recover in his own name in this action for the property so sold the de-, fendant by the plaintiff, though it belonged to the estate of Samuel Aiken, — to which the defendant excepted.</p> <p>The evidence tended to prove a valid claim in favor of the defend-, ant against the estate of Samuel Aiken, but the defendant never presented this claim to the commissioners on said estate.</p> <p>The defendant insisted that as a claim in offset to items of account in favor of said estate it was properly allq-yyable in this suit, although not presented to the commissioners, bat the court excluded the defendant’s claim from the consideration of the jury, — to which the-defendant excepted.</p> <p>O. S. & C. O. Burke, for the defendant, insisted that the two administrators of Samuel Aiken’s estate should have been joined, and cited 2 Black. Com. 182, 396; Brinckerhoof v. Wernple, 1 Wend. 470 ; Holliday v. Doggett, 6 Pick. 359 ; Story on Part. § 271; Wright v. Williamson, 978 ; Mason v. Lord, 20 Pick. 447; that the defendant could plead in offset his claim against said estate, and cited Leavenworth v. Lapham, 5 Yt. 207 ; McDonald v. Webster, 2 Mass. 498 ; Bordman v. Smith, 4 Pick. 212 ; Knapp v. Lee, 3 Pick. 452 ; Jarvis v. Rogers, 15 Mass. 407; Way v. Wakefield, 7 Yt. 228 ; 1 D. Chip. 157.</p>

Debt upon a lease under seal, and common counts in debt added. Plea, nil debit, and also a special plea setting up a submission to arbitrators and an award thereupon. The plaintiff joined issue upon the first plea, and replied to the second plea, that tbe arbitrators in making their award did not follow the submission. The defendant rejoined that the award was made according to the submission. Trial by the court, June Term, 1864, Poland, Ch. J., presiding.

The plaintiff declared in special assumpsit. Plea, the general issue. Trial by the court, June Term, 1864, Poland, Ch. J., presiding. Upon the facts as set forth in the opinion of the court, the county court rendered judgment for the defendant, — to which the plaintiff excepted.

<p> Evidence. Husband and Wife. </p> <p>'The plaintiff, being an infant, commenced and proscuted his action by his father as his natural guardian, who was not a party to the subject matter of the litigation. Meld, that the guardian’s wife was a competent witness.</p>

Trustee Process. The facts found by the commissioner are fully set forth in the opinion of the court. Upon the commissioner’s report, the court, December Term, 1863, Poland, Ch. J., presiding, decided that the trustee was not chargeable, and rendered judgment that he be discharged with costs, — to which the plaintiff excepted. cited Law. Eeg.

Trustee Process. The auditor reported that Amasa W. Newell, the plaintiff’s intestate, and the defendant, in June, 1862, entered into a joint enterprise of buying sheep and lambs and cattle on commission for one Wm. F. Buggies, of Sutton, which was to continue during the season of that business.

This was an appeal from a decree of the probate court for the district of Caledonia, distributing the “residue” of Mrs: Lydia C. Shedd’s estate, under her will, to certain legatees.

Action op Account. An auditor was appointed wbo reported substantially as follows: The defendant, prior to 1855, had employed the plaintiff in the business of selling and delivering fruit trees in different parts of the country, and, among other places, ip the province of New Brunswick5 and the defendant having taken or sent to that place a large number of fruit trees, it was agreed between the plaintiff and defendant, in writing, that they should deliver the New Brunswick…

Assumpsit upon a receipt given by the defendant to the plaintiff for a quantity of goods attached by the plaintiff as sheriff, on writs in favor of S. S. Thompson and Chamberlin & Fletcher, against Fife &Wadleigh. Plea, the general issue. Trial by the court, December Term, 1863, Poland, Ch. J., presiding.

Action on the case. Plea, the general issue, with a notice. Trial by Jury at the June Term, 1864, Poland, Ch. J., presiding. It appeared that on the 24th day of November, 1859, the defendant, then constable of the town of Lyndon, served a writ in favor of one Whipple, by attaching and taking into his possession the plaintiff’s horses and other personal property.

Trover for a sled. Plea, the general issue. Trial by jury, June Term, 1864, Aldis, J., presiding.

Two suits, — one an action of ejectment, the other an action of book account, — in favor of the same plaintiff against the same defendant. The ejectment suit was tried by the court under the plea of the general issue, at the June Term, Caledonia County, 1862, and judgment was rendered for the defendant.

Trespass for removing a dam and flume. Plea, the general issue, and trial by the court, June Term, 1862, Caledonia County, Poland, Ch. J., presiding.. The following facts appeared from the evidence. There is a small natural pond in the west part of Wheelock, from which runs a small stream emptying into Lamoille River.

This is an action of covenant broken. Plea, that the defendant has kept and performed his covenant. Trial by jury and verdict for the plaintiffs, Washington county, March Term, 1864, Peck, J., presiding. This case has been twice before the supreme court on former occa* sions, and the cases are reported in the 30 Vt. 655, and 34 Vt. 433, where the facts are fully stated.

<p> Evidence. Deposition. </p> <p>The defendant, an officer, attached a quantity of bark as the property of one Blush, it being in his tan-yard. The plaintiff claimed the bark, and his evidence tended to show that he purchased it of A. and had it delivered at Blush’s bark mill to be ground, and that Blush had no title or interest in it. The defendant claimed that Blush purchased the bark of A., and showed, under objection, by the brother of A., that the day A. finished drawing the bark, he, the witness, was at a store near the tannery and A. came from the direction of the tannery to the store and showed him a note for about $75. signed by said Blush and no one else. It appeared from other evidence that the price of said bark was about $75. and that the last of it was drawn about the time tiie witness testified to seeing the note. Held, that the testimony objected to was admissible.</p> <p>Where the name of a magistrate by whom a deposition is to be taken is inserted in the citation, the party taking the deposition cannot have it taken by another magistrate.</p>

It was agreed that the facts upon which the plaintiff relied in support of his case were as follows r John II. Kimball was appointed administrator of the estate of Stephen Sargent, and gave a bond in due form. Assets came into his hands belonging to said estate, and on settlement of his account in the probate court there was found in his hands the sum of $192.21, which said court ordered Kimball, as such administrator, to pay over pro rata among the creditors of said estate.

<p>[in chancery.]</p> <p> Associations. Free Masons. </p> <p>“ The Mount Lebanon Koyal Arch Chapter” of Tree Masons, in 1836, disposed of all their real and personal property, consisting of their hall, furniture and equipment, pursuant to a vote of the Chapter, and for twenty-three years held no meetings, elected no officers, performed no acts required by its laws and rules, and ceased to have any visible sign of existence. Held, that the legal existence of the Chapter was gone, and that it was beyond the power of the State Chapter to restore it to life so as to preserve for it a continued existence from 1836.</p> <p>A rule of the association that officers elected should hold their offices till dthers were elected, could not operate in a case of this kind to preserve its legal existence.</p>

Action on the case. Plea, the general issue, and trial by jury, Caledonia county, June Term, 1861, Poland, Ch. J., presiding. The plaintiff’s evidence tended to prove that on the 16th day of August, 1860, he started from his home in Lyndon with four horses, intending to drive them to Boston for market. His horses were harnessed two abreast to a spring-board wagon.

Trespass for two horses, two team harnesses, and one two horse wagon. Plea, the general issue, with notice. Trial hy jury, June' Term, 1864, Orleans County, Poland, Ch. J., presiding. The plaintiff read in evidence three mortgage deeds from Jefferson Wooster to himself, and produced the notes described therein, and proved that the same were unpaid, and that the property sued for was a part of the property described in the mortgage deeds.

Bill in Chancery. The allegations and prayer of .the bill are sufficiently set forth in the opinion of the court. The case was heard upon demurrer to the bill, at the December Term, 1862, Wind' sor county, Barrett, Chancellor, and the bill was dismissed, — from which decree the orator appealed. The defendant held a mortgage of certain premises, dated March 3d, 1857, for $478. The plaintiff attached the equity of redemption March 26th, 1857.

This was an appeal from a decree of the probate court disallowing the will of Isaac Warner deceased, and was tried by the jury at the Chittenden County Court, April Term, 1863, Pierpoint, J., presiding, upon the plea, that the paper propounded was not the last will and testament of the said deceased.

Assumpsit in a special count and the common counts. The case was referred and the referee reported the facts substantially as follows: On and previous to March 31st, 1862, Augustus Graves, the father of the defendant, was the owner of a farm in Salisbury, situate partly on the east and partly on the west side of the Rutland and Burlington railroad, and bounded on the west by Otter Creek.

Trespass or the freehold. Plea, the general issue, and trial by jury, Windsor County Court, December Term, 1863, Barrett, J., presiding. The controversy between the parties was in relation to the dividing line between lands owned by the plaintiffs and lands owned by James N. Willard.

Assumpsit. Plea, the general issue, and trial by jury, Windsor County, May Term, 1863, Barrett, J., presiding. The plaintiff offered to prove by parol that the defendant applied to him, in February, 1851, and proposed to employ him as a lawyer to assist the defendant in all the suits which might grow out of the defendant’s purchase of a farm and some personal property of his brother, John Adams, who had^failed in business.

Trustee Process. The commissioner reported that, September 1st, 1856, N. W. Fairchild, trustee in this case, executed and delivered to W. F. Colton and R. M. Lampson his promissory note for $325. payable to said Colton & Lampson or order.

<p> Statute of Limitations. Promissory Note. </p> <p>The plaintiff’s note in which he promised to pay S. “four hundred dollars in produce or wood from the farm on demand as he may want to use the same,” had run for over twelve years without any demand having been made. Held, that it was not barred by the statute of limitations.</p> <p>Where the instrument itself indicates that the calls for payment are to be indefinitely prospective, and to be made as may suit the wants and convenience of the payee, there is no ground furnished upon which the law can assume any fixed point, as a limit to reasonable time for making a demand, and therefrom give operation to the statute of limitations.</p>

This was an appeal from the judgment of the probate court setting,out a homestead to the appellee. When the appeal was entered the appellee moved that it be dismissed because no notice was ever given to her that an appeal had been prayed for or allowed. Nor was any citation ever served upon her to appear in court to attend to the same agreeably to the statute in such case made and provided. The court overruled the motion, to which the appellee excepted.

Assumpsit, brought to recover the payment of a note given by the defendant to one S. S. Stone for one hundred dollars, dated 2d February, 1859, payable to said Stone or bearer, in twelve months from date, at the Farmers & Mechanics’ Bank in Burlington.

<p>[in chancery.]</p> <p> Evidence. Union Store Association. Agency. </p> <p>Evidence of the custom of doing business in a union store association, whose constitution andjall rights and duties under it stand wholly upon agreement and consent, and not at all upon law or acts of incorporation, is admissible to show consent to or acquiescence in a practical and actual modification or change of their by-laws.</p> <p>Tbe directors of sucb an association should not be held to a strict performance of all the duties prescribed for them in the by-laws, as in case of trustees or directors of a private corporation, when it appears that those duties were mainly transferred by the association to an agent, and the members thereof knew how the business was being managed, and of the deviations from the by-laws, and acquiesced in the same.</p> <p>The directors could not be held responsible for bad debts occasioned by allowing the agent to sell on credit; nor for depreciation of stock; nor for error in estimates of current expenses; nor for fixing the prices of goods too low to pay current expenses, this subject having been discussed in the meetings of the di-. vision, and all members having shared in proportion to their purchases in the advantage of buying cheap.</p> <p>In assessing the losses upon members, those who left the state before the business of the division was closed, and are now beyond the reach of process, should be left out of the computation.</p>

Assumpsit upon a guaranty in a special count and in the general counts. The case was tried by the court upon an agreed statement of facts. The court, at the September Term, 1864, Pierpoint, J., presiding, rendered judgment pro forma for the defendant to recover his costs,— to which judgment the plaintiffs excepted.

General Assumpsit to recover money alleged to have been paid as usury. Plea, the general issue, and trial by jury, April Term, 1864, Pierpoint, J., presiding.

Bill in Chancery. The case was heard at the September Term, 1863, Pierpoint, J., presiding, upon the bill 'and answer of the defendant Hickok, and a statement of facts agreed upon by the parties, (all of which are sufficiently set forth in the opinion of the court,) and the court pro forma ordered and decreed that as to the defendant Hickok, the bill be dismissed, and that he recover his costs. From this decree the orator appealed.

General Assumpsit. Pleas, the general issue, payment and set-off. The defendant moved to dismiss the action on the ground that the county court had not jurisdiction. The court at the April Term, 1864, Aldis, J., presiding, pro forma, overruled the motion, — to which the defendant excepted.

Indictment for murder. Upon the trial no exception was taken by the respondent to the rulings of the court, except in the particulars hereinafter stated.

Trustee Process. The commissioner reported that the principal debtor, William A. Jewett, being entitled to a bounty of $100. from the town of Berkshire on account of his enlistment into the military service of the United States to the credit of that town, requested the alleged trustee “ to draw his town bounty for him to let it out or keep it where it would be safe for him,” and gave the trustee an order on the treasurer of the town for the same.

Trover for a tub of butter. Plea, the general issue. Trial bv jury September Term, 1864, Axdis, J., presiding. The facts are fully stated in the opinion of the court. insisted that this suit was sustainable only against the sheriff, and cited G-. S. p. ■‘88, § 24 ; Abbott v. Kimball et al., 19 Vt. 551; Hutchinson v. Barkhurst, 1 Aik. 258. insisted that trover could be sustained against the deputy.

Trespass guare clausum fregit. Plea, the general issue, and trial by jury, September Term, 1864, Aldis, J., presiding. The only question is as to the rule for the taxation of costs.

Wells, deceased, to his adopted son George Carpenter. The facts in this case are fully set forth in the opinion of the court.

Appeal prom: Chancery. It appeared from the bill and answer that the orator leased his farm in Swanton for one year from the 1st of March, 1860, lo the defendant upon shares ; and the orator complained that the defendant had not fulfilled certain stipulations of the lease, which the defendant denied.

Trover for a bedstead, washstand, bureau and two chairs. Plea; not guilty. Trial by the court; September Term, 1864, Aldis, J.-, presiding.

Trespass for atL assault and battery. The Case was heard on demurrer to the replication. The facts Set forth by the plea and Replication are fully stated in the opinion of the court. At the FebRuary Term, 1864, Aldis, J., pResiding, the court pro forma held the replication insufficient, and rendered judgment for the defendant, —to which the plaintiff exceptedi

.Action on the case, to recover damages for the death of the plaintiff’s intestate alleged to have been caused by the insufficiency of a certain highway in the town of New Haven. Plea, the general issue, and trial by jury, June Term, 1864, Pierpoint, J., presiding. On trial the plaintiff asked leave to enter a non-suit on the second count in his declaration, to which the defendant objected, but the court granted the request, and a non-suit in that count was entered.

Petition to the supreme court for a new trial. The plaintiff was non-suited in the county court, and prayed for a new trial on the ground of having been deprived of his day in court by unavoidable accident.

This was a claim for services of a minor son rendered to Coles R. Cook during his lifetime. The case was referred, and the referee reported that the first witness iutroduced by the plaintiff was Almira Orcutt, the wife of the plaintiff. She was objected to on the part of the defendant, on the ground that she was not such an agent of her husband as was contemplated by the act of 1858, and therefore could not be admitted as a witness.

<p>School District, Prudential Committee. Custom.</p> <p>It had been the custom of a school district to apportion the wood for the school to the scholars, and to sell-thp right of furnishing the deficiency, if any, to the low-, est bidder. Held, that this custom was not binding upon the prudential committee, and that he might furnish the deficiency himself and charge the price to the district.</p> <p>But haying furnished the wood, he would have no right to assess the amopnt upon the scholars^ or the district, without a y;ote of the district authorizing him tty do so.</p> <p>Held, that the prudential committee might compromise and pay a claim for a couple of blackboards which the plaintiff had allowed the district to use until’ one of them was worn out.</p>

<p>Book Account. The auditor reported and found that there was nothing due from either party to the other to balance book accounts between them, and found for the defendant to recover his cost.</p> <p>The auditor further reported that on the trial of this case the plaintiff was sworn as a witness and testified to the correctness of the accounts upon his books produced and claimed to be his original books.</p> <p>The defendant offered evidence to impeach the general character of the plaintiff as a book-keeper, and proposed to ask of witnesses the following question, viz : “What is the character of the plaintiff in the community where you reside, for fairness and correctness as a book-keeper?” To this question the plaintiff objected, but the objection was overruled and the defendant was allowed to ask the question. In reply to the question several witnesses gave evidence tending to show that the general character of the plaintiff for correctness as a book-keeper “was not upon a par.”</p> <p>The auditor further reported that the defendant in this case commenced a suit at Granville in the State of New York, before a justice of the peace, in which he declared upon a noto for twenty-five dollars, payable to Geo. Osborn, and also upon “an account for goods, wares and merchandise sold-and delivered, and for labor and services, board and lodging, money paid out and expended, money lent, and for commission in buying property.” That the defendant (Hitt) appeared and put in his answer in writing containing a general denial and notice of set-off, work and labor, goods, wares and merchandise delivered, cash lent and advanced, account against a hired girl which it was alleged that the plaintiff (in that suit) had agreed to pay, and for damages done to a certain grey horse by using him unkindly and unskilfully. And that each party claimed that there was a balance due to him from the other party, on their general account and dealings.</p> <p>When the parties met for trial negotiations for a settlement were set on foot, which resulted in an agreement that all the matters in controversy between the parties should be settled except the claim of Hitt for damages to the. horse, and that Slocum should stipulate in writing to take no advantage of the statute of limitations upon said claim; the Osborn note to be given up, and each party to pay his own costs.</p> <p>Slocum thereupon gave up the Osborn note, and signed an agreement in writing not to take advantage of the statute of limitations upon said claim for damages to the horse, which agreement was delivered to Hitt. And Hitt gave to Slocum a receipt for the Osborn note, to apply on account. No other papers were passed between the parties, or were delivered by either party to the other at the time, and no entries were made at the time by either of the parties upon their books, but Hitt subsequently credited Slocum with the amount of the Osborn note given up.</p> <p>The plaintiff (in this case) insisted that as matter of law the receipt above described was conclusive evidence that the accounts of the parties were not settled or intended to be settled, and that the auditor could not legally find a settlement upon oral testimony in opposition to the receipt, but the auditor decided otherwise, and found the fact of a settlement upon the testimony of persons who were present and heard or took part in the negotiations for the same. The plaintiff excepted to the report.</p> <p>On the hearing upon the auditor’s report, at the September Term, 1864, Kellogg, J., presiding, the court decided that the plaintiff’s exceptions should he overruled, and that the defendant was entitled to a judgment in his favor on the report, and rendered judgment accordingly. To this decision and judgment the plaintiff excepted.</p>

<p>This was an appeal in behalf of the town of Hartland from an order for the removal of one Ezekiel West, and Louisa, his wife, as paupers, from the town of Sherburne to the said town of Hartland. The cause was referred to a referee, and on the hearing on his report at the September Term, 1864, Kellogg, J., presiding, the court, pro forma, decided that the said Ezekiel West and Louisa, his wife, were unduly removed, and rendered judgment in favor of the town of Hartland, the appellant, on said report. To this decision and judgment the town of Sherburne, the appellee, excepted.</p> <p>The facts found by the referee are stated in the opinion.</p>

<p>Book Account. The auditor reported that the items in the1 plaintiff’s account were admitted to be correct by the defendant, with the exception of items numbered 29, 30, 31, 32, 33 and 34, in relation to which he found that Dr. H. D. Allen brought a suit in his favor and made returnable before a justice of the peace against the defendant, and that the defendant retained the plaintiff to defend it; that a trial was had and a judgment recovered for the plaintiff therein ; that thereupon the defendant appealed, the plaintiff entering as bail for said appeal, and that said suit, at the March Term,A. D. I860, of the Rutland County Court was duly entered and became pending therein; that the plaintiff (Allen) recovered a judg-' meat in his favor, but for what amount did not appear ; that after-* wards the said Allen commenced a suit in his favor, against the plaintiff and defendant in this action, counting and declaring upon their recognizance entered into before the justice on said appeal, which action is still pending in the county court. All the items from No. 29 to 34 inclusive, were for fees charged at reasonable rates by the plaintiff in said suit against the parties in this suit, and which was instituted by Allen as above stated upon said appeal recognizance. Soon after the commencement of said suit the plaintiff tendered Allen on account of his claim the sum of $18*84. Said tender was not accepted by Allen, but for what reason did not appear, nor did it appear whether it was sufficient in amount or not; nor did it appear that said tender was made at the express request of the defendant though he knew the plaintiff appeared therein, nor that the plaintiff was expressly requested or employed by the defendant to defend said suit, but the plaintiff acting under his employment by the defendant to defend the first mentioned suit, and entering bail therein for the appeal referred to, at the request of the defendant, appeared in said cause, and made the tender and charged therefor as above stated. Said tender has been kept good, and the question as to whether it was sufficient or not, is the question in dispute in the pending suit against the plaintiff and defendant.</p> <p>The cause was heard upon the auditor’s report at the September Term, 1864, Kellogg, J., presiding, and the court decided that the plaintiff was entitled to recover for all the items of his account as> reported by the auditor, and rendered judgment accordingly, — to which the defendant excepted.</p> <p>The plaintiff is not entitled to recover of the defendant the amount charged in these items, because there is no express or implied prom-ise from Dougherty to pay him.</p> <p>Smith’s employment in the former suit conferred on him no au-thority to appear for Dougherty in the second suit. His- authority continued only until final judgment was perfected in the first suit and no longer. Walradt v. Maynard, 3 Barb. 584, cited, in 1 Abbott’s N, Y. Digest, 336, § 132.</p> <p>Neither had Smith as co-defendant any authority to employ himself for Dougherty. Paddock v. Colby et al., 18 Vt. 485 ; Smith v. Lyford, 24 Maine, 147; Weston v. Davis, 374, cited in Eastman’s Digest, 86 ; Cook v. Riter, 4 E. D. Smith, 253, cited in Abbott’s N. Y. Digest, p. 335, § 119.</p> <p>maintained that the plaintiff’s items Nos. 29 to 34 should be allowed.</p> <p>1. Because the plaintiff was expressly employed by the defendant in his litigation with Allen. The scire facias was but a branch of the original litigation, and the plaintiff might well continue his defence in that.</p> <p>2. Because the defendant knew he was sued in the scire facias, knew that the plaintiff was defending him in that action.</p> <p>3. It was the defendant’s duty to defend Ms hail. And bail may reasonably defend himself and hold his principal liable for expenses, upon an implied agreement of principal to indemnify and defend his ■surety and bail.</p>

Assumpsit for money had and* received, money lent and advanced, money paid, and on an account stated. Pleas, the general issue, and the statute of limitations. Replication, traversing the latter plea. Trial by the court, by the consent of the parties, March Term, 1864, Kellogg, J., presiding.

Appeal prom Chancery. The facts set forth in the petition, answer and replication, and the decree of the court, made at the March Term, 1864, Kellogg, Chancellor, are sufficiently stated in the opinion of the court.

Trespass, for breaking and entering the plaintiff’s close, in Fair-haven, on the 15th December, 1857, and cutting and carrying away certain trees therefrom. The plaintiff’s writ was dated the 23d of January, 1858. Plea, not guilty, with notice, setting forth certain special matter relied on in defence. Trial by jury at the September Term, 1864, Kellogg, J., presiding.

Assumpsit for goods sold and delivered. The case was referred to a referee who reported that Peter McDonal, Norman B. Squires and John Sherry were partners in business under the firm name of McDonal, Squires & Sherry, at the time of the purchase of the bill of goods in question; that since that time and before the bringing of this suit, Peter McDonal had deceased, and Norman B. Squires and John Sherry are the surviving partners of said firm; that the defendant sometime in…

Ejectment for a tract of land in Rutland. The case was tried by the court, Kellogg, J., presiding, at the September Term, 1864, under the plea of the general issue. Judgment was rendered for the plaintiff to recover the seizin and peaceable possession of the land. A hearing was then had to determine what sum was equitably due the plaintiff for the breaches of the bond and mortgage in question.

This was an appeal from the decision and report of the commissioners of claims against the estate of Eliza Abell, by which certain claims in favor of the town of Benson, the appellant, against the estate of the intestate were disallowed; and, on the taking of tli§ appeal, tlie appellant filed in the probate court a declaration on book account against tbe intestate.

The case was referred to John Prout, Esq., as auditor, who reported as follows : “I find that prior to the accruing of the plaintiffs’ account, the plaintiff Thrall and A. Pond, Esq., were partners in the practice of law, at Rutland, and that during the existence of said partnership, they, the said Thrall & Pond, were employed by the deceased, Ira Seward, to defend the several suits referred to in the charges numbered from 1 to 18, inclusive, of the plaintiffs’ account; that…

Indebitatus assumpsit in five counts. Pleas, tbe general issue, the statute of limitations, and that the defendant and Silas J. Hulett, the plaintiff’s intestate, when the said supposed causes of action ao* crued, were residents of and had their respective domicils in Hampton, in the state of New York, and not elsewhere, and continued to reside there until the decease of the intestate, and that the defendant, ever since the decease of the intestate, has resided and had his…

Book Account. The auditors reported as follows : On the 19th of May, 1859, the plaintiff submitted to the defendant the following proposition in writing: “Hydeville, May 19th, 1859. W. F. Barnes, Esq., — Dear Sir: — We have concluded to lease you the working of our Pratt quarry for a term of years, say three or five, as we have talked.

Trover for a promissory note. The case was referred and the referee reported that on the 29th day of January, 1852, the plaintiff executed to the defendant a promissory note for the sum of $2000., payable to the order of the defendant, at the Adams Bank, three months after date. The note was given for the sole accommodation of the defendant, and to be paid and taken care of by the defendant.

The declaration contained only the common counts in indebitatus assumpsit demanding $2000. Pleas, the general issue, and the statute of limitations. The pleadings resulted in a demurrer to the rejoinder.

General Assumpsit. The case was referred to referees who found and reported the following facts : The defendants are a corporation chartered by the legislature of this state in 1856. The company was organized at Brattleboro on the 6th day of May, 1857, by the choice of directors, and S. M. Waite, the plaintiff, secretary. At a meeting of the directors held on the same day David Heaton, 2d, was chosen president and treasurer.

Assumpsit, in the common counts, to recover back money alleged to have been paid as usury. Pleas, the general issue, and statute of limitations. The ease was referred, and the referee reported that sometime in the fall of 1851, the plaintiff informed the defendant that he wanted to borrow some money, and told him the amount.

Trespass for breaking into and crossing tbe plaintiff’s prpmiseSj and trampling down and destroying his herbage, &c. The case was¡ referred to a referee who reported the- facts substantially as set forth in the opinion of the court. At the September Term, 1863, Barrett, J., presiding, the court pro forma rendered judgment for the plaintiff, on the referee’s report, — to which the defendant excepted. I. The referee- erred in excluding the evidence offered.

Assumpsit to recover for money collected for taxes in Rocking-ham in 1860. Trial by the court by the consent of the parties, September Term, 1864, Barrett, J., presiding. The plaintiffs claimed to recover on the ground that the list of the plaintiffs’ property included within the bracket below was improperly made, and is invalid.

Assumpsit on a promissory note. Pleas, the general issue, and the statute of limitations.

Forcible Entry and Detainer. The complaint was signed by Marshall Newton, assistant judge of Windham County Court, and by W. E. Osgood, justice of the peace.

The plaintiff introduced an agreed statement of facts, which were admitted, subject to the objection by the defendants that the facts were not pertinent, and to the admission of which the defendants excepted. The facts agreed upon were as follows : “ 1. That the testator deceased on or about the-day of....... A. D, 1850, 2. That testator’s will was drawn, by one Abel Patten, a clergyman, not skilled in the use of technical terms, and little accustomed to drafting wills. 3.

-^.SSUMPSIT, The case was referred and the facts found by the referee sufficiently appear in the above note and in the opinion of the court. At the April Term, 1864, the court, Barrett, J., presiding, rendered judgment, pro forma, for the plaintiff on the report, —to which the defendant excepted.

Book Account. The auditor reported that the plaintiff presented an account, and presented and proved the account book of his intestate, and also introduced other testimony tending to sustain a part of the items of said account and rested.

Trover for several articles of personal chattels. Plea, not guilty. Trial by jury, April Term, 1864.

Trespass on the Case. After the declaration the writ proceeded in the usual form of a summons to Joseph Smith, trustee, &c. It was served upon the principal defendant as an attachment, but no service was made, or attempted to be made, on the trustee.

Trespass quare clausum and for a quantity of hay. Plea, the general issue. Trial by the court, December Term, 1864, Barrett, J., presiding. The farm or close named in the declaration, on which the grass or hay sued for grew, was deeded to Lemira Gilson, the wife of the defendant Luther Gilson, by W. S. A. Morse, by deed dated April 6th, 1850. At the time of this conveyance there was a mortgage upon the farm of about $600., and the said Lemira took the deed subject thereto.

Indictment for violations of the statute prohibiting .traffic in intoxicating drinks. Plea, not guilty. Trial by jury, May Term, 1864, Barrett, J., presiding.

Complaint for costs. It was proved that a writ in the name of said Ives, as plaintiff, against said Fullam, returnable to the May Term, 1864, of Windsor County Court, was duly served on said Fullam ; that said suit was not entered in court; that Fullam in the course of the week next preceding said May Term was verbally notified that the suit would not be entered, and that it was dropped; that Fullam is an attorney and accustomed to attend regularly the terms of the county…