Volume 38 — Vermont Reports

By an agreement of parties the cause stood for trial at the December Term, 1863, Kellogg, Chancellor, on the bill and answers, and such deeds and other papers as are referred to in the bill arid answers, all of which are sufficiently set forth in the opinion of the court, and a pro forma decree was rendered dismissing the bill with costs, — from which the orator appealed. maintained that the mortgage deed executed by Marshall to Millard and Cook, was a mortgage of “ one…

Debt for rent on a demise of a farm in Winhall, by the plaintiff to one Horace B. Stevens, — the plaintiff alleging that the estate and interest of the said Stevens therein subsequently came to, and became vested in, the defendant by assignment. The plaintiffs declaration also contained a count in debt for use and occupation by the defendant. Plea, the general issue, nil debit; and trial by jury at the June Term, 1862, Kellogg, J., presiding.

Action on the case for slander, to recover damages for words spoken against Sarah W. Nott, wife of Asahel W. Nott, charging her with stealing wood. Plea, not guilty, with notice of justification. Trial by jury, September Term, 1863, Barrett, J., presiding.

Action to recover for a sow. Plea, not guilty, and special justification. The case was referred, and upon the report the court at the September Term, 1864, Barrett, J., presiding, rendered judgment for the plaintiff, -for the sum of $30.66, being the value and interest found by the referee, — to which the defendants excepted. The facts found by the referee are fully set forth in the opinion of the court.

Indictment for incest. Plea, not guilty, and trial by jury, September Term, 1863, Barrett, J., presiding. The jury returned a verdict of guilty, after which the respondent moved that judgment be arrested for insufficiency of the indictment. The motion was overruled and the respondent excepted. The indictment is sufficiently set forth in the opinion of the court.

Action on the case to recover damages for an alleged injury to the plaintiff by tbe insufficiency of an highway in Woodstock. Plea, the general issue, and trial by jury, May Term, 1864, Poland, Ch. J., presiding.

Action on the case for injury occasioned by the insufficiency of an highway. Plea, the general issue, and trial by jury, May Term, 1864, Bakkett, J., presiding. The obligation of the town to maintain the highway in question and the giving of the statute notice of the injury were conceded.

Book Account. The only item in dispute was for the board of a pauper. The case was submitted upon an agreed statement of facts, which sufficiently appear in the syllabus, and in the opinion of the court. Upon the agreed facts the court at the May Term, 1864, Barrett, J., presiding, rendered judgment for the plaintiff to recover $1.25 per week for the two years claimed, with interest on the amount for each year from the end thereof, — to which the defendant excepted.

Assumpsit in a special declaration on a contract by parol entered into by the plaintiffs and defendant, by which the defendant agreed to cut down all the butternut trees fit for logs on a certain described portion of the defendant’s farm, cut the same into the logs, and also cut into logs all the butternut trees fit for logs then cut down on said land, and draw and deliver all of said logs to the plaintiffs at “Burnett’s” sawmill during the then existing period of sledding ;…

Assumpsit upon a written promise to pay $130. interest on a note. Plea, the general issue, and special pleas upon which issue was joined. Trial by court by consent of parties at the May Term, 1864, Barrett, J., presiding.

Petition to strike off a default. The petition represented that the petitioner now resides and always has resided in Massachusetts ; that in March, 1859, a writ declaring in trespass' for a quantity of lumber was served upon him in favor of the petitionee, Sewall Fullam ; that the petitioner employed Hon. Reuben Washburn, then of Ludlow, Vt., now deceased, to defend said suit; that he informed said Washburn that he had a perfect defence, and thought the case would never be…

Trover for a wagon. Plea, the general issue, with notice of release. Trial by jury, December Term, 1864, Barrett, J., presiding.

Assumpsit. The case was referred to an auditor and upon his report, which is sufficiently set forth in the opinion, the court at the December Term, 1864, Barrett, J., presiding, rendered judgment for the-plaintiff for $2852.96., which was ten per cent, of the amount for which the Island House was sold as named in the contract, with the interest, after deducting the value of the deficiency in quantity of one parcel of land received in part payment, — to which the defendant…

Assumpsit in the general counts to recover $200. bonus paid for a United States mail route contract. Plea, the general issue, and trial by court at the May Term, 1863, Barrett, J., presiding. The facts are fully set forth in the opinion of the court. Judgment was rendered for the plaintiffs, — to which the defendant excepted. I. This suit was commenced on the same day with the making of the contract and the payment of the money.

The orator alleged in ¿is bill that in April, 1860, he purchased of the defendant the easterly portion of certain described premises in Woodstock, together with a pass way round the west end of the building on said premises, and along in rear thereof to the premises purchased by the orator ; that he converted his portion of the building into a dwelling house and moved in with his family; that the defendant knew this was the orator’s design when he made the purchase ; that…

Trustee Process, which was referred to a commissioner to take the disclosure of the trustee and other evidence and report the facts as provided by law. The commissioner made his report, to which exceptions were filed by the plaintiff.

Trespass guare clausum fregit and a count for assault and battery, to which several pleas were pleaded, followed by replications, rejoinders and issues of fact. Trial by jury, April Term, 1864, Barrett, J., presiding.

Trespass qu. cl. fr., with a count in trover. Plea, the general issue, and trial by jury, September Term, 1863, Barrett, J., presiding. Held: pro forma, that if these facts were proved the plaintiff would not be entitled to recover, and directed a verdict for the defendant, — to which the plaintiff excepted.

Trustee Process. The commissioner found the following facts! March 20th, 1861, Norris L. Stetson owed the defendant, Ruel L. Winn, the sum of $119.31 for which he gave him a negotiable promissory note, payable on demand with interest; Winn then told Stetson that he should not want the money for a year and perhaps not then — and whenever he did want the money, he would give seasonable notice.

Bill in Chancery. Tbe substance of tbe bill, answer and proofs, sufficiently appears in tbe opinion of the court. At tbe April Term, 1864, Barrett, Chancellor, tbe bill was pro forma dismissed, and tbe orator appealed.

Action on the Case. The only question discussed, and decided in this case is as to the admissibility of certain depositions offered by the defendant. The plaintiff objected to them for want of sufficient certificates and captions, insisting that the same were defective in the statement of the cause of taking the depositions, and also for not sufficiently describing the suit, and the parties therein.

Bill in Chancery. The orator sought to have a conveyance of a certain farm set aside and annulled. The ground of the claim and the material facts in the case are sufficiently set forth in the syllabus and opinion of the court.

<p> Assignment. Contract. Attorneys. </p> <p>O. being sued on a contract as principal, defended on tbe ground of having been an agent of M. and employed tbe plaintiffs, who were law partners, as attorneys, but was defeated. He then brought an action against M. to recover what he had been compelled to pay and his expenses in that suit, and pending the suit assigned his entire claim against M. to F. upon sufficient consideration, and subsequently settled with the plaintiffs by giving his note for the amount of their claim for services, at the same time informing them of his intention to include the same as a part of his claim against M., and agreed that if he recovered they should have so much of the judgment against M. The whole claim was allowed, and the assignee, F., collected the whole amount of the judgment and now holds the money. Held, that his right thereto is superior to that of the plaintiffs; that the plaintiffs’ claim exists against C. only. .</p> <p>As HI. was not liable to the plaintiffs with C., the claim of the latter upon M. was the same before the settlement with the plaintiffs as after, and the effect of the assignment was to vest in F. the equitable title to the whole claim, unaffected by any agreement between C. and the plaintiffs, or by the fact that the amount of .the plaintiffs’ debt was embraced in the judgment against HI.</p>

Book 'Nccount. The case was referred to an auditor — and the court at the June Term, 1864, Peck, J., presiding, rendered judgment for the plaintiff on the report, which is sufficiently set forth in the opinion. Exceptions by the defendant.

<p> Contract Exchange. Assumpsit. Pleading. </p> <p>The plaintiffs sold certain cattle to the defendant for a specified price; they were delivered to the defendant and the title vested in him upon his promise to make “payment in the future by the delivery of a certain number of boots of a particular quality, at a specified price, which was no more than-their.cash value. Having failed to make the payment according to the terms of his contract, it is held the defendant was bound to pay the agreed price in money, and by the whole course of decisions in this state the plaintiffs might well sue and recover the balance of the price in an action of general assumpsit for goods sold.</p>

<p> Trover. Sale. Deposition. County Court. </p> <p>As between the parties to a sale of a chattel the title may pass without delivery, if all the other elements of a valid sale exist. It is only when the rights of other persons are affected that delivery becomes essential.</p> <p>In the sale of a heifer by the defendant to the plaintiff, it was agreed that the defendant should keep her for a specified time. Held, that this agreement could not affect the title between the parties, the sale being complete; and that trover could be maintained for the heifer by the plaintiff against the defendant uponhis refusal to deliver her.</p> <p>A deposition taken, without consent, to be used in two cases, though between the same parties, is not admissible.</p> <p>Where by the custom of the court, parties in court and attorneys, may not be required to attend to the taking of depositions in term time, it is a matter strictly within the discretion of the county court to determine whether the depositions so taken shall be admitted.</p>

<p> Contract. Gift. Husband and Wife. </p> <p>The plaintiff, an old man of feeble mind, worked for the defendant from the last of February to the first of August, under a contract to work for his board and clothes, nothing being said as to how long he should work. The auditor found that the defendant’s work was worth $40. during this time. Held, that the defendant having furnished no clothes to the plaintiff, though the latter was poorly clad, he could recover of the defendant his earnings in the summer; the same being necessary for his support through the fall and winter.</p> <p>When the plaintiff went to the defendant’s house and requested a settlement, the latter drove him away and threatened him with bodily injury. Held,, that this was equivalent to a denial of all liability to the plaintiff, and he had a right to so regard it and bring his suit.</p> <p>The defendant’s wife was a sister of the plaintiff and gave him a frock of small value which he much needed, without the permission of her husband. Held, that the defendant could not annul the gift, it being regarded but a reasonable act of charity which the wife had a legal right to give.</p>

<p> Statute of Limitations. </p> <p>Where it appeared in a hook action that the defendant, a few days before the commencement of the suit, told the plaintiif that he would come up to his office and settle his account and pay him what he owed him, it was held, that the statute bar, as to that part of the account which had run for more than six years and was barred by the statute of limitations, was removed by this acknowledgement or promise.</p> <p>In the absence of any proof or suggestion even that there were any other dealings between the parties to which the promise could have referred, than the account in question, it will be presumed that it applied to that account.</p>

<p>Complaint for bastardy. Plea not guilty, and trial by jury, Mareli Term, 1865, Peck, J., presiding. The plaintiff testified, and her testimony tended to show among other things, that on the 15th of September, 1863, the defendant had intercourse with her, and that the child was then begotten by the defendant; that she was then fourteen years of age, and that the child was born March 26th, 1864 ; that she was a single woman, never married. She had no recollection of having seen the defendant for a year or more next before the 15th of September, 1863, but that the defendant had intercourse with her once before, which was when she was but eleven years of age. To this last testimony the defendant objected, but the objection was overruled, and the testimony admitted, — to which the defendant excepted.</p> <p>The complainant’s evidence in the opening of the case tended to show that the birth of the child was premature ; the defendant’s in reply that it was full grown. The plaintiff then introduced further testimony tending to sustain her evidence introduced in the opening. The counsel of the defendant then offered Dr. Bradford, who has practised medicine a good many years, and also midwifery, and who it appeared had not heard all the testimony of the complainant, and offered to read to him their minutes of the testimony of Mrs. Ainsworth and Dr. Nichols, who were witnesses for the complainant, and ask his opinion upon the facts testified to by them, as shown by their minutes, that is, as to whether the child was prematurely born. To this the plaintiff objected, objection sustained, — to which the defendant excepted. The defendant then offered to suppose a case, the same as the minutes of the defendant’s counsel would show had been testified to by Mrs. Ainsworth and Dr. Nichols, and ask his opinion as to whether the child was prematurely born. To this the plaintiff objected, objection sustained, — to which the defendant excepted. Verdict for the plaintiff.</p>

<p> Slander. Pleading. </p> <p>A wilful and malicious «Jestruction of another’s fruit trees to an amount exceeding seven dollars, is under our law, (G. S. p. 673, § 39,) a crime that subjects the per. petrator to corporal punishment; and it is held to involve moral turpitude. And to charge one with a commission of this offence, with malicious intent of injuring him, &c., would be actionable slander.</p> <p>It need not be alleged in the declaration that the destruction of the defendant’s trees was wilful and malicious.</p> <p>The declaration in this case held sufficient upon demurrer.</p>

<p> Statute. Witness. Evidence. Construction. Commissioners. Appeal, </p> <p>The words “suit, or proceeding at law,” in § 24, eh. 36, G. S., the word “actions” in the proviso to said section, and the word “suit” in § 1, No. 31, Acts of 1864, were used in these sections in reference to the same subject matter and substantially as synonymous terms.</p> <p>The proceedings by commissioners upon a claim presented against an estate is held to be a suit within the meaning of the act of 1864; therefore if pending the first day of August, 1863, the day the General Statutes went into operation, the plaintiff was a competent witness.</p> <p>An appeal from the judgment of commissioners whether taken within twenty days, or on application to the supreme or county court after twenty days have expired, is but a continuance of the same proceeding, a transfer from one tribunal to another.</p>

Petition for a writ of mandamus to compel the prudential committee of school district No. 11 in Glover to make application to the selectmen of the town to locate a school house. It appeared that the district by a majority vote, on the 28th of January, 1863, located the school house.

<p>Audita Querela. The complaint alleged that in an action pending in the Orleans County Court in favor of the plaintiffs against the defendant, the latter recovered judgement for his costs ; and after-wards fraudulently procured the defendant Brown’s cost in said suit to be taxed by the clerk of said county court ex parte at a much larger sum than Brow.n was by the statute and the rules of court entitled to recover, by procuring false and fraudulent vouchers of certain persons that they had attended said court as witnesses in said' suit for Brown, and also included in said voucher the name of the defendant Brown as a witness when in fact he was only a party in the cause, and procured the same to be taxed against the complainants by the clerk, and without notice to the complainants or their attorney, and also procured the clerk to issue an execution in favor of Brown against said Clough & Eobinson, for said illegal bill of costs.</p> <p>The declaration neither asked for nor indicated any relief either specific or general for the act complained of. The defendant demurred to the declaration. At the June Term, 1865, Poland, Ch. J., presiding, the court adjudged the declaration or complaint to be insufficient and rendered judgment for the defendant, — to which the plaintiff excepted.</p> <p>maintained that there is a distinction between the case of Harriman v. Smith, 31 Yt. 385, and the case at bar in this, that this case shows not amere error in taxation of costs, which was the former case, nor an erroneous judgment, or act of the court or clerk, but a fraudulent taxation, procured upon false vouchers by the defendant, and known to be false at the time by him, and that audita querela is the proper remedy in this case. An execution which misdescribes the judgment in matter of costs, though an innocent mistake, is set aside upon audita. Wilson v. Fleming, 16 Vt. 649 ; Stone v. Ohamlerlm, 7 Gray, 206. Also, see Lovejoy v. Weller, 10 Mass. 103. Nor is it any answer to the declaration that the law has provided other remedies. Audita has been held to be a concurrent remedy with motions, petitions and in many instances with writs of error when the statute has not expressly forbidden this remedy. A party has a common law right to it if applicable. 17 Mass. 159 ; 1 D. Chip. 391; 33 Vt. 224 ; 34 Vt. 474; 17 Vt. 253.</p> <p>I. Audita is an equitable remedy and is applicable rather to a case for relief against a judgment improperly obtained than to an execution irregularly issued. U. S. v. Jenkins, 18 Johns. 305. The taxation of costs is a matter of discretion with the court, and audita querela cannot be sustained for any error in taxing costs in this case. The more frequent and proper remedy is by motion to the court to tax anew, but the plaintiff has his remedy by writ of error, and no law is better settled than, that when the matter of complaint is a proper subject for a writ of error, audita will not lie. Weeks v. Lawrence, 1 Vt. 433 ; Dodge v. Hulbell, ib. 491; Tuttle v. Burlington, Brayton, 27 ; Spear v. Flint, 17 Vt. 497; Field v. Turnpike Co., 5 Mass. 388. And cases where it will lie must be determined by the rules of common law. 1 Aiken 321; 17 Mass. 153 ; 10 ib. 101. The taxation of costs is the proper business of the clerk ; it is therefore of no consequence that it was done out of term time. A party cannot be relieved by this remedy when the injury is attributable to his own neglect.</p> <p>II. If audita is the proper remedy in this case, the demurrer is still well taken. The writ does not ask for any relief whatever.</p>

<p> Bounty Money. Contract. Pleading. </p> <p>The plaintiff’s evidence tended to prove that the defendants promised to pay him $300. in consideration that he would become a substitute for a drafted man. The defendants’ evidence tended to prove that they were to pay the plaintiff $100. themselves, and, in addition, the bounties that might be paid by the state and by the United States, which were understood by both parties to be $100 each. Held, that the fact that the United States paid no bounties to substitutes was no ground for the plaintiff to recover of the defendants in an action of general assumpsit for the $100. expected from the United States,</p> <p>If the plaintiff had any cause of complaint on account of the manner of his enlistment, so that he was deprived of any bounty from the United States, his remedy would be in a different form of action.</p>

Trespass for oats, grass seed, hay and stubble, with a count in trover for the same property. Plea, the general issue, with notice that the property was taken by Parker as deputy sheriff on process in favor of Cole, as the property of Selden Gray. Trial by jury, June Term, 1863, Poland, Ch. J., presiding.

Trespass quare clausum fregit. Plea the general issue and notice. Trial by court December Term, 1863, Aldis, J., presiding. Held: that if a lessee for years grant the lands to another for the whole term he has therein, it will be construed to be an assignment, and not a lease, for there is no reversion in the party so granting. Poultney v. Holmes, Stran. 405 ; Palmer v. Edwards, Doug. 187, in notis; Adams on Ejectment, 202.

Trespass for taking and carrying away a quantity of hay. Plea, the general issue, and notice of special matter. Trial by jury, De„ cember Term, 1863, Aldis, J., presiding.

Trespass for two oxen. The defendant plead the general issue, and two special pleas. The defendant in his first special plea justified the taking under three rate-bills, one a town tax, another a state tax, and the third a state school tax, the two first with warrants annexed, and the last without a warrant; and in his second plea he justified under the said two rate-bills with warrants annexed.

Assumpsit to recover $300. bounty from the town of Guildhall for the plaintiff’s enlistment into the military service of the United States to the credit of said town. The case was submitted to the court at the June Term, 1865, Poland, Ch. J., presiding, upon a statement of facts agreed to by the parties, which is sufficiently set forth in the opinion of the court.

Trustee Process. Judgment was rendered for the plaintiff on the auditor’s report by the consent of parties — and the cause was heard at the June Term, 1865, Poland, Ch. J., presiding, upon the commissioner’s report, as to the trustee’s liability' — the court deciding that the trustee was not chargeable, and that the claimant was entitled to hold the funds in the trustee’s hands, — to which the plaintiff excepted.

Trespass giiare clausum. The case was referred and the referee reported substantially that Elisha Davis at the time of his decease in 1812, was the owner of lot No. 8 in the 2d range in Hardwick; that his estate was insolvent as appears by the records of the probate court; and that Peter Page was appointed administrator.

General Assumpsit. Plea, the general issue, and trial by jury, June Term, 1865, Poland, Ch. J., presiding. The facts in the case fully appear in the opinion. The court having admitted certain testimony objected to, the defendant excepted.

Book Account, to recover for services as attorneys. The case was heard upon the auditor’s report, which is sufficiently set forth in the opinion, and the court at the December Term, 1864, Poland, Ch. J., presiding, rendered judgment for the defendant, — to which the plaintiffs excepted. maintained that the plaintiff's had knowledge of the dissolution of the partnership. Prentiss v. Sinclair, 5 Yt. 149 ; Mclveret al, v. Humble etal,, 16 East. 169.

Petition for alimony and support of minor children and to have the husband make good the former, decree, which had been defeated by the wrong of the husband. The substance of the petition and evidence sufficiently appear in the opinion of the court.

The defendant moved to quash the proceedings for reasons set forth in the opinion. The court at the September Term, 1864, Poland, Ch. J., presiding, sustained, the motion and ordered that the order of removal be quashed, — to which the plaintiff excepted.

Bill in Chancert. The orators, George Spencer, administrator of the estate of Gideon Spencer, Marshall S. Spencer, Louisa S. Russell, wife of Spencer Russell, and George Field allege that on the 15th of July, 1830, Gideon Spencer then in life, and Stephen Spencer, being seized and the owners in fee of certain real estate and property situated in Vergennes, by deed of indenture demised, leased and let to John D. Ward, so long as wood should grow and water run, said property;…

Action on the case to recover damages for a personal injury to the plaintiff caused by the alleged defect of a highway in Essex, which that town was by law bound to keep in repair. Plea, the general issue, and trial by jury, Chittenden County, September Term, 1864, Pierpoint, J., presiding.

Tnxs was an appeal from an order of removal. The defendant filed a motion to quash the order. The plaintiff moved for leave to have tlie officer amend his return on the order, but the court refused to grant leave on the ground that the same could not be legally amended, — to which refusal tlie plaintiff excepted. The court, at the Orleans county, June Term, 1865, Poland, Ch. J , presiding,' pro forma, sustained the motion to quash.

Ejectment for lot No. 49 in Newark. Plea, the general issue, and trial by court, Caledonia county, December Term, 1864, Poland, Ch. J., presiding. The plaintiff claimed title by virtue of an attachment and levy of an execution in his favor against Daniel Whipple. The main facts in the case sufficiently appear in the opinion of the court.

Assumpsit upon a guaranty. Plea, the general issue. Trial by court at the Washington County September Term, 1864, Peck, J., presiding. The plaintiff introduced a paper, signed by the defendants severally, which is in the following words : “ Messrs. Keith, Peck & Co.: — Mr. Lyman Wilson wishes to buy stock for his shop, and pay in six months or before. We will be surety for him for a sum not to exceed one hundred dollars. Signed, J. S. Dwinnell, Z. G. Pierce.

Action on the Case. The plaintiff alleged in her declaration that on the 14th of July, 1864, the defendants were a corporation duly established by the laws of Vermont; that at that time there was a railroad extending from Portland, Maine, to Island Pond, Vermont, which the defendants used, maintained and controlled for usual railroad purposes, and which they were bound to keep in repair ; that on said day the intestate, Amos H. Needham, was in the employment of the…

This is an action ou the case for deceit, or fraudulent concealment of unsoundness in the sale of a horse.

This was an action of trespass, for taking and carrying away two stacks of marsh hay. Plea, not guilty, with a notice annexed to the said plea that the defendant would on trial, prove that the hay in question was cut and stacked on the land of the defendant. Trial by the court by the consent of the parties, at the Rutland County Court, September Term, 1864, Kellogg, J., presiding.

Ejectment for a parcel of land in Clarendon. Plea, the general issue, and trial by jury, September Term, 1864, Rutland County, Kellogg, J., presiding. The plaintiff and defendant were adjoining land owners. The territory comprising their farms formerly belonged to Dr. Silas Hodges.

Action on the case, to recover damages alleged to have been caused to the plaintiff’s land and buildings by the stoppage of a natural stream of water. Plea, the general issue, and trial by jury, at the September Term, 1864, Chittenden county, Pierpoint, J., presiding.

'The main facts in the case are set forth in the opinion of the court.

Assumpsit upon a promissory note, and also the common counts for work and labor, money had and received, &c. The defendant pleaded the general issue, and gave notice of special matter in defence, and also several special pleas in off-set, and also pleaded the statute of limitations. To which plea of the statute of limitations the plaintiff replied, that the note was a witnessed note, and had not run fourteen years, to which replication the defendant demurred specially.

<p>Action OR Tort, to recover the value of a horse and a halter. The declaration contained counts in trespass and trover. Plea, the general issue, with notice of special matter of defence. Trial by jury, April Term, 1865, PieRpoint, J., presiding.</p> <p>The plaintiff’s title, and the taking of the property by the defendant, were admitted.</p> <p>The defendant claimed in justification that he took the property as constable of the town of Hinesburgh for the purpose of satisfying a lawful town .tax, &c., and introduced in evidence the records of the warnings and proceedings of the annual town meetings of said town, holden on the 28th of August, 1862, and on the 3d of March, 1863. Under the 2d article in the warning of the meeting of August 28th, 1862, it was “ Resolved, by the legal voters of the town of Hines-burgh in town meeting assembled, that our selectmen be directed to levy and collect a tax of ninety per cent, on the grand list of 1862 for the purpose of paying the quota of fifty men, due from this town under the recent order from the governor, (which are due at this date.) Those that have enlisted or may hereafter enlist to fill up our quota for three years, the sum of $50., and those that enlist for nine months the sum of $40., when they are mustered into service. The balance of this tax to be collected and paid in by the first day of June, 1863, for the purpose of paying the balance due said volunteers, viz : $50. each to the nine months men, to be paid $10. monthly after the expiration of four months, making in all to the nine months men $90., and $40. to the three years men when they are discharged from service ; making in all to the three years men $90.”</p> <p>The 10th and 11th articles of the warning of the meeting of March 3d, 1863, read as follows: “ 10th. To see if the town will vote to ratify and confirm the action of the town taken August 28th, 1862, assessing a tax of ninety per cent, on the grand list of that year for soldiers’ bounty, agreeable to an act of the legislature approved October 29th, 1862.</p> <p>11th. To see if the town will vote a tax to pay any indebtedness the selectmen may have contracted in payment of soldiers’ bounty.”</p> <p>Under article 10 it was resolved, “ That the town will confirm the vote of the town made in town meeting on the 28th day of August, 1862, so far as to make binding so much of the ninety per cent, tax voted at that time as will pay the three years men the full sum of $100. for their term of service, and the nine months men $40. each for their term of service.” Under article 11 it was voted to direct the selectmen to assess a tax of forty-two per cent, on the grand list of 1862, to pay the indebtedness contracted by the selectmen to pay soldiers’ bounties, $500. of said tax tó be collected and paid into the hands of F. W. Baldwin by the 1st day of June next, to be by him invested and paid to the three years’ recruits on their return, * * * or, in other words, such per cent, on the grand list of said year as may be necessary to cancel said indebtedness not otherwise provided for by the vote of the town, adopting said resolution, under article No. 10.</p> <p>It was conceded that the plaintiff was not entitled to recover for the horse if the vote of the meeting of March 3d, and the proceedings under that vote, and previous and subsequent proceedings, as hereinafter stated, were legal.</p> <p>Against the objection of the defendant, the plaintiff was permitted to introduce testimony tending to show that at the time of the passage of the vote of August 28th, 1862, there were in the United States service a sufficient number of soldiers, some under an enlistment for three years, and some for nine months, who had been credited to the quotas of said town of Hinesburgh under the previo.us calls by the president for volunteers, to exhaust the amount directed by that vote to be raised, if paid the amount and in the manner specified in said vote ; that after the passage of said vote, and after some of the money authorized by it to be raised had been collected by the constable, — “ it was determined by the town authorities that as the legislature had voted the $7. per month additional pay allowed other troops, to the nine months men, the town would not pay to them the last instalment of $50. provided for in the resolution of August 28th, 1862.”</p> <p>It appeared that at the time of the meeting of March 3d, 1863, all bounties then due, aud all money that had been borrowed to pay bounties, had been paid out of the proceeds of the ninety per cent, tax voted August 28th, 1862, leaving a trifling balance in the hands of the town ; and nothing more to be paid in the way of bounties except the instalment due the three years men at the expiration of their term of service, which would fall due in about three years from August, 1862. It further appeared that the defendant, in the collection of the tax of March, 1863, under direction of the town authorities, proceeded to collect of those persons named in the rate bill Who had not paid as much as forty-two per cent, of the ninety per cent, tax of August, 1862, enough to make up (hat amount, and to repay out of the money so collected to those who had paid more than that amount the surplus as shown by the figures on said rate bill.</p> <p>In respect to the halter, it appeared that it was on the horse when distrained, and the defendant led-the horse away with it, and returned it after the horse was sold, hut the plaintiff refused to receive it back.</p> <p>The defendant requested the court to charge the jury that upon the facts which the testimony tended to prove, and which were conceded as above stated, the plaintiff was not entitled io recover ■either for the horse or the halter ; but the court refused so to charge, and directed a verdict for the plaintiff for the sum realized by the defendant on sale of the horse — the plaintiff having procured him to be bought for his benefit — and for the value of the halter, to be rendered for each article separately ; whereupon the jury rendered a verdict in favor of the plaintiff, on the count for the horse for the sum of $73., and on the count for the halter, 98 cents.</p> <p>The defendant moved in arrest of judgment for the insufficiency of the declaration, in that it contained counts in trespass and trover, without an averment that they were for the same cause of action, which motion was overruled. T.o all which rulings, decisions, and refusals of the court, the defendant excepted.</p>

This was a proceeding under § 22 of ch. 94 of the General Statutes of Vermont providing for seizure of liquor under certain circumstances. The complaint and warrant follow the forms prescribed-by statute.

Action on the case to recover for cattle killed on the defendants’ railroad by being run over at farm crossings. The defendants demurred to the declaration.

This was an action of assumpsit in three special counts, two charging the defendants as common carriers and one as warehouse-men, and the general counts. Plea, the general issue, and trial by jury, April Term, 1864, Piekpoint, J., presiding.

Trover for one “barber’s chair.” Plea, the general issue and trial by jury, April Term, 1865, Pierpoint, J., presiding.

Petition for foreclosure of a mortgage. The bill states that Jacob K. Drury, on the 29th day of May, A. D. 1861, duly executed to the petitioners a mortgage deed of certain described land situated in the town of Essex, in the county of Chittenden, conditioned for the payment of the sum of all and every sum Drury then owed the petitioners, whether as acceptor or drawer, as well as all amounts that Drury then owed them for loans, discounts, or otherwise, whether overdue then…

Assumpsit declaring in four counts. The first count declared on a contract for the purchase of sixty boxes of cheese with warranty of soundness in the quality, and also a warranty of the amount of tare of the boxes, and alleged breach of warranty. The second count declared on a contract for the purchase of thirty cheeses, and a subsequent delivery of eighteen cheeses upon said contract, and alleged neglect and refusal to deliver the remaining twelve.

Indictment for violation of the statute (§ 29, ch. 119, G. S.,) in relation to the enlistment of men within this state for military service without the state.

Action on the case, for an injury sustained by the wife of Henry Carlisle by reason of the insufficiency and want of repair of a highway in the town of Sheldon, being an action for an injury that would survive to the wife. Trial by jury, April Term, 1865, Aldis, J., presiding.

Trover for two barrels of flour, three tubs of butter, two half barrels of salt fish, one barrel of crackers, one box of tea and three barrels of salt beef. Plea, th,e general issue, and trial by jury at the April Term, 1864, Aldis, J., presiding. The property was taken by the defendant as constable on a writ of attachment in favor of Marshall H. Burgess against one Anson Thompson, and sold upon said original writ.

The defence insisted on under appropriate pleas, was: First, Want of testamentary capacity. Second, Weakness of intellect and undue influence. The instrument in question was executed on the 8th April, 1861.

This was an action of covenant. The declaration is sufficiently-referred to in the opinion. The case was tried in the county court, upon the following agreed case, December Term, 1865, Pierpoint, Ch. J., presiding. John Wood, (who had good title to the premises,) conveyed the: same to George N. Farewell by deed, dated, acknowledged, and recorded iu the land records of Ripton, on the day of . A. D. 18 .

Appear from the decision of commissioners on the estate of Jacob W. Conroe deceased. Declaration filed by the plaintiff in covenant. The plaintiff set forth in his declaration that Jacob W. Conroe, as administrator of the estate of John G. Eels, of Middlebury, on the 1st day of March, A. D. 1860, conveyed to the plaintiff for a valid consideration certain described premises by deed of warranty.

This was an action for false imprisonment with counts for assault and battery. Plea, the general issue and notice. Trial by jury, September Term, 1863, Kellogg, J., presiding. The plaintiff gave evidence showing an arrest of Cyrus Whitcomb upon a writ in favor of the defendant on the 1st of November, 1860, and the commitment of said Whitcomb to jail for want of bail.

Book Account. The auditor finds that in the month of April, 1863, the plaintiffs agreed to furnish what timber and lumber might be wanted to build the defendant’s house at the prices charged in the plaintiffs’ bill.

<p> Booh Account. Interest. </p> <p>The plaintiff worked for the defendants át a fixed monthly salary for over three years, but did not present his bill for payment to them until-a short time previous to bringing this suit, although he at different times called for money which was not paid; nor did the defendants ever ask for a bill or make any effort to pay the debt, though aware of its existence. Held, that as the parties should settle as often at least as once each year, interest should properly be allowed upon the annual balances.</p> <p>It is not necessary that the presentation of a bill or a demand of payment should be made in order to give a right to recover interest upon a balance of book accounts.</p>

<p>Indebitatus Assumpsit iu the common counts for money paid and for work and labor. Plea, the general issue, and trial by the court, September Term, 1864, Kellogg, J., presiding. The facts are sufficiently stated in the opinion.</p> <p>Judgement for the defendant. Exceptions by the plaintiff.</p> <p>cited 1 Chit. PL 511 ; Gould PL ch. G, § 47, p. 329 ; Kimball v.Lamson, 2 Vt. 138 ; Beniv. Manning, 10 Vt. 225 ; Phelps v. Wooster, 11 N. H. 51; Dig. 315 (10 )</p>

<p>This was an appeal from a certain order and decree of the probate court for the district of Rutland, made on a petition, presented to said probate court by the appellant, praying the said probate court to revoke and annul a certain order of the probate court referring to a referee an alleged claim existing between Carlos A. Hitchcock as administrator of the estate of Jeffrey Barnes, deceased, of the one part, and Violet Barnes, the widow, and Emily F. Barnes and Josephine Barnes, the daughters of Jeffrey Barnes, of the other part,— the said petitioner alleging that William Penn Barnes was a son of Jeffrey Barnes, and that the minor children of William Penn Barnes are interested in the matter of the said claim ; that the appellant as administrator of William Penn Barnes, and guardian of the minor children and heirs of said Penn, never consented to said reference; and that he is informed and believes that said reference was collusive as between the claimants and administrator. By the said order and decree appealed from the prayer of the petition was denied and the petition was dismissed. On the entry of the appeal in the county court the petitionees and appellees moved to dismiss the petition and appeal for want of jurisdiction in the matter of the petition. On the hearing of said motions, judgment was rendered by the county court at the September Term, 1864, Kellogg, J., presiding, pro forma, dismissing the petition on the ground that the probate court had no jurisdiction of the subject matter of the petition. To this judgment the appellant excepted.</p>

Book Account. The main question pertains to the effect of a certain New York statute, which is sufficiently referred to in the opinion of the court. e ■ On the hearing on the report of the auditors and exceptions thereto, at the September Term, 1864, Kellogg, J., presiding, judgment was rendered for the defendant, — to which the plaintiff excepted.

Replevin for one two-horse stage coach. The plaintiff’s writ was dated the 6th of July, 1864. Plea, non cepit, with a notice of special matter. Trial by the court at the September Term, 1865, Kellogg, J., presiding, by the consent of the parties.

This was an action of trespass de bonis, for certain articles of household furniture, and goods, and other personal property, with a count in trover, joined under the statute, for the same articles. The plaintiff’s writ was dated on the 12th of August, 1863. Plea, the general issue, with notice of special .matter in defence. Trial hy jury at the March Term, 1865, Kellogg, J. presiding.

Assumpsit for use and occupation of real estate, with other common cminls. Plea in offset, payment, etc. Trial by jury, September Term. 1805, Kellogg, J. presiding.

Assumpsit for services by the plaintiff as teacher of the district school in the defendant district in the winter of 1863-’64. The plaintiff's declaration contained the common counts in indebitatus assumpsit for work and labor, and also for money, and also a special count on the contract for teaching the school. Plea, the general issue, with notice of a tender and other special matters in defence.

In January, 1857, the trustees of the Western Yerra on t Railroad; who had acquired an absolute title under decree of foreclosure expired^ made a lease of the road to the Troy and Boston Railroad Company., for the term of ten years. A majority of the bondholders under that mortgage were dissatisfied with the lease, and desired to have it set aside, as they were advised that it was illegal.

This was an action of ejectment for the recovery of the possession of a tract or parcel of land in Bennington, and was, by the agreement of the parties and a rule of court, referred to the determination of a referee, whose report was, agreeably to the said rule of reference, returned to the county court at the June Term, 1865. It appeared from the referee’s report that Lafayette Lyon and Nancy Booth, the wife of Roger Booth, were tenants in common of a piece of land.

This was an appeal by James Boardman, of Bennington, from an order and decree of the probate court for the district of Bennington,, allowing a certain account presented and rendered to the said prohíbate court by Perez Harwood, of Bennington, of his guardianship, •for the said James Boardman, — he, Boardman, having been by the-probate court adjudged and decreed to be insane and incapable of taking care of himself, and Harwood having been by the same court duly appointed as…

In this case the plaintiff presented to the commissioners of claims against the estate of Nehemiah Chandler, certain claims in his favor against the estate which were disallowed by the commissioners ; from which decision and report the plaintiff took an appeal to the county court, which was duly entered at the December Term, 1864.

Trover for certain articles of household furniture, a cow. a lamb, a hog, and other property. Plea, the general issue, and trial byjury at the December Term, 1865, Kellogg, J. presiding.

This was an action of debt on a bond, executed by Benajah Stanley, the defendant, as principal, and by Asahel Matteson, as surety, to the probate court for the district of Bennington, with a condition annexed thereto, to secure the faithful discharge by the defendant of his duties as a trustee for one Nancy Corey, daughter of Benjamin Corey, deceased, to which trust the defendant had been appointed by the said probate court, to supply the place of certain trustees of a trust…

This was an action on book account. The paper marked A., referred to in the opinion, was as follows : “ We, the undersigned, creditors of Holly, Fields & Kent to the amounts set opposite our names respectively, (the said amounts being figured up principal and interest to January 1st, 1863,) for value received by us respectively of I. N. Sykes, the receipt of which is hereby acknowledged, do hereby, severally and respectively, for ourselves respectively, but not jointly nor…

Action on the case for a false warranty by the defendants of the soundness of a horse by them exchanged with the plaintiff. The ■action was, by the agreement of the parties, referred to a referee, and the report of the referee is sufficiently set forth in the opinion of the court.

This was an action of trover for two certain promissory notes signed by one Michael Sanford, and was, by the agreement of the parties, referred. At the December Term, 1865, the referee made and filed his report in the said action, and the defendant filed certain exceptions to the report. The facts found by the referee are stated in the opinion of the court.

Debt upon a judgment rendered in Massachusetts. Pleas, nul iiel record and a discharge under the insolvent laws of Massachusetts.

Action of replevin, in which a bond was. filed and returned with the writ. The defendant filed a motion to dismiss the action, at the September Term, 1864, Barrett, J. presiding, on the ground that it did not appear that the writ had been served as required by law. The motion was overruled, and the cause continued for pleadings and further proceedings in due course. The defendant excepted to the judgment of the court in overruling said motion.

This was an aetiou of general indebitatus assumpsit. Plea, general issue and trial by jury, April Term, 1865, Barrett, J. presiding. The plaintiff gave evidence tending to show that about the 28th day of April, 1863, he and the defendant made an agreement to exchange oxen, by the terms of which the defendant agreed to pay the plaintiff six dollars per hundred pounds for the difference between the live weight of the plaintiff’s and the defendant’s oxen.

This is an action brought; by Harriet A. Kimball, while sole; but after the entry of the case in court she married Swarts Richardson, who appeai’ed, and the action was prosecuted by them jointly. The ease was referred and the referee found aS follows: From March, 1862, to March, 1863, Charles C. Peck was the sole prudential committee of school district No. 10, in Westminster.

This was an action to recover tbe contract price of a mowing machine which was referred, and upon the referee’s report at the April Term, 1865, Barrett, J., presiding, the court rendered judgment for the plaintiff. The facts found by the referee are substantially stated in the opinion of the court. The defendant excepted to the said judgment. The judgment of the county court was erroneous.

Bill in Chancery. The case was heard ou the bill, answer of Pierce, replication and proof (all of which is sufficiently stated iu the opinion of the court) at the September Term, 1864, Barrett, Chancellor, when a decree was ordered substantially as claimed in the bill — from which defendant Pierce appealed — the bill being taken as confessed as to the defendant Adams.

Book account, to recover for services as pastor of the defendant society. The facts found by the auditor are set forth in the opinion of the court. At the September Term, 1865, Dean, J., presiding, the court rendered judgment on the auditor’s report, pro forma, for the plaintiff, for the sum of $750, to which the defendant excepted.

Trespass in five counts. The plaintiff charged the defendant with beating, kicking and in other ways abusing her. To some of the charges the defendant pled the general issue, and others he justified as having been done by way of moderate correction for misbehavior in her as a servant, she being a child about eleven years old that the defendant had taken to bring up.

Trustee Process. The court rendered judgment at the September Term, 1865, on the disclosure of the trustee, that he was chargeable as trustee for the sum of $17.73, and costs, to which the trustee excepted. The disclosure of the trustee and the facts in the case are stated in the opinion of the court.

Trustee Process. The question was as to the liability of the trustee. The trustee’s disclosure and the facts in the case are sufficiently stated in the opinion of the court. At the April Term, 1864, the court, Barrett J. presiding, rendered judgment, pro forma, that the trustee be discharged with costs, — to which the defendant excepted. We claim that the attachment of Tute Brackett & Co., was invalid and void. 1st. As to the goods.

Action on the Case. The case was referred, and upon the referee’s report, at the April Term, 1864, Barrett, J. presiding, the court, pro forma, rendered judgment for the defendant, to which the plaintiff excepted. The facts found by the referee' are sufficiently stated in the opinion of the court.

This was an action of trover, wherein the plaintiff claimed to recover of the defendants Beals and William Thomas, for an alleged conversion of six cows and one pair of stags. Defendant Thomas was defaulted. Beals plead the general issue. Trial by jury at the April Term, 1865, Barrett, J. presiding.

Action on the case, to recover for an injury alleged to have been occasioned by the insufficiency of a bridge in the town of Wolcott. Plea, the general issue. Trial by jury at the December Term, 1864, Barret, J. presiding. The facts are fully stated in the opinion of the court.

Writ oe Review commenced before a magistrate. The original judgment, which is sought to be .reviewed, was affirmed on the hearing before the justice, and judgment was rendered for the plaintiff in this suit and the defendant appealed. The facts set forth in the writ are stated in the opinion of the court.

This is an action of trespass, quare clausum fregit; plea, the general issue, and was submitted to the court upon an agreed statement of facts, which is substantially set forth in the opinion of the court. Upon said statement the court., at the'December Term, 1864, Barrett, J., presiding, rendered judgment for the plaintiff, — to which the defendant excepted.

Trover for a quantity of wood. Plea, the general issue, and trial by jury, May Term, 1865, Barrett, J. presiding. The facts are fully, stated in the opinion. The court having instructed jbe jury that if'they should find that the contract of the plaintiff with .

<p>[ In Chancery.]</p> <p> Chancery. Injunction. Nuisance. </p> <p>'The court of chancery has authority to grant injunctions to restrain parties from the use of their own land and buildings for trade and purposes in themselves lawful, but necessarily so noxious, unhealthy, dangerous or unwholesome to the occupants of neighboring buildings as to destroy, or seriously and substantially to impair, their value for the purposes for which they were designed.</p> <p>In this case the facts are held not to warrant an injunction.</p> <p>Where a party buys land of another and builds a house thereon with notice of the intention of the latter to erect a barn near by on land adjoining, he cannot at equity abridge the latter in the exercise of his lawful right to erect the barn, on the ground of its being a nuisance.</p>

Trespass for the taking and conversion of a cow. The case was referred, and the facts found and points raised are stated in the opinion of the court. At the December Term, 1865, the court, Maucy, J., presiding, rendered judgment, on the referee’s report, for the defendant to recover his costs, — to which the plaintiff excepted.

The case was referred, and the facts found, the substance of the petition and the questions raised are fully set forth in the opinion.

Trover for a hog. Plea, not guilty. Trial by jury, May Term, 1865, Barrett, J. presiding.