Volume 39 — Vermont Reports

Assumpsit on a note dated December 16th, 1850, for $190.00 signed by the defendant, payable to the plaintiff on demand. Plea, the general issue and three pleas in bar. The pleas in bar were traversed by the plaintiff. Trial by jury, at the June Term, 1865, Peck, J., presiding. The plaintiff read said note to the jury and rested his case.

The case was tried by tbe court at the June Term, 1865, Pecs, J. presiding, on an agreed statement cf facts as follows : The pauper, George Lunt, is a minor of about the age of nineteen years, and is the legitimate son of John Lunt. The said John Lunt now resides in Eden and did reside there at the time of the removal of the pauper from Tunbridge to Eden, and had his legal settlement in Eden.

<p> Sheriff and Deputy. Subrogation. Chose in Action, Assignment. Notice. </p> <p>The rule that a bona fide purchase for value and without notice of prior equities is a good defence, is held to apply only to cases where the purchaser has obtained a legal title, or a legal superiority and advantage, in good faith and for value.</p> <p>The assignee of a chose in action takes it subject not only to all equities between the assignor and the debtor, but to equities residing in a third person against the assignor. The eases which seem to hold otherwise are peculiar and exceptional.</p> <p>The general rule with reference to equitable assignments and assignments of equities is laid down as follows : When the equity is binding on the assignor, those who buy from him subsequently will necessarily be bound in the same manner, and can acquire no greater or better right than he had to sell or part with. When therefore the assignment or transfer of a chose in action is in question, priority in point of time will give priority of right unless there are some special circumstances, other than good faith and the payment of value, to justify or require a different conclusion.</p> <p>Where a deputy recovered judgment against a bank for money deposited, which he had collected on an execution, the equitable title to the money and to the judgment was in the execution creditor until his claim against the sheriff for the la ches of his deputy was paid by the sheriff. Upon such payment the sheriff was entitled to be subrogated to the right of the execution creditor.</p> <p>A sale of the judgment by the deputy transferred no legal title; it conveyed at most but an equitable right.</p> <p>it is immaterial whether the purchaser had notice of the prior equity or not, but it is held in this case that he had notice.</p>

REPLEVIN for cattle impounded, tried on demurrer at the September Term, 1865, Peck, J., presiding.

Assumpsit. Plea, the general issue, and trial by the court at the March Term, 1866, Peck:, J. presiding'. It appeared that in 1860, the plaintiff sold and conveyed a small farm to one Farr for $750. received $50, of it down, and took notes on interest and a mortgage back on the premises for $700. none of which were ever paid.

Assumpsit. The case came before the court at the March Term, 1865, Peck, J. presiding, upon an agreed statement of the case in writing. The only question raised was whether United States legal tender notes, so called, were a valid tender in payment of the bills of the bank. The court rendered judgment for the defendant. Exceptions by the plaintiff.

Boon Account. It appeared by tbe auditor’s report that on the 9th of January, 1864, the defendants purchased of the plaintiff six hundred bushels of oats at fifty-nine cents per bushel, to be delivered when called for during the following spring and summer ; that the plaintiff delivered about three hundred and fifty-five bushels; that about the first of July, 1864, the plaintiff sent word to the defendants that he had no more oats for them ; that oats were then worth…

<p> Sale. Change of Possession. Attaching Creditor. Damages. </p> <p>It is well settled in this state that a sale or pledge of chattels., which from iheir nature or situation it is not impracticable to move, will, if not accompanied by a manifest and substantial change of possession, be voidable by attaching creditors.</p> <p>The ostensible nature and purpose of a change of possession as well as its duration should be considered in determining whether it was so manifest and substantial as to be unprejudiced by a return of the property to the control and possession of the original owner.</p> <p>In March R. delivered all his assets, including two wagons, to H., to enable H. to realize out of their avails the payment of certain debts. H. sells part of them and applies on his debts. In June thereafter he allows the wagons to return to R.’s possession, although the debts were not fully paid, H. believing that he could not lose any rights by so doing. Held, that the wagons after their return to R.’s hands, and while in his possession, are attachable as R.’s property.</p> <p>The attachment would not be less valid because H. had been previously summoned as R.’s trustee on account of these wagons at the suit of the creditor who makes the attachment, nor would its validity be altered by H.’s having become responsible for the debt, unless R. was also discharged.</p> <p>The extent of damages which the attaching officer who sues the real owner for a trespass in unlawfully removing property from his attachment, may recover, is the amount of debt, costs and interest due upon the execution, which the property was held to pay, and such trespasser not being a party to the execution cannot, because the officer’s fees on the execution were not seasonably endorsed by items, object to their allowance as part of the damages.</p>

<p> Heplevin. </p> <p>A justice of the peace has jurisdiction in replevin for goods and chattels unlawfully-taken or detained of value not exceeding twenty dollars.</p>

<p>Booh Account.» Offset. Payment.</p> <p>One item of the plaintiff’s account was for five days work at $8.25. The defendant indorsed that sum as for that five clays work, soon after the work was done, on a note for $10., which he held against the plaintiff at the time the work was done, hut without the knowledge or consent of the plaintiff, and the plaintiff charged said work on hook, supposing that it would be adjusted in their mutual accounts. Held, that the defendant had no right to appropriate and apply that item of work as payment on said note, and by such application and indorsement defeat the right of the plaintiff to have it constitute an item of charge in his running account with the defendant, and to have it reckoned and embraced by the auditor in this suit on book.</p> <p>The defendant borrowed of the plaintiff eleven pounds of nails with the understanding that the defendant was to pay for them in nails again, which he never did, and the plaintiff never made any demand for them, but charged them on book .at the time they were borrowed — which was about four years before this suit on book was brought, including said nails as one item. Meld, that the plaintiff could recover for the nails.</p>

<p>ACTION of assumpsit with special counts on a town order of $800, and general counts. Plea, general issue. Trial by court, March Term, 1866, Steele, J., presiding.</p> <p>The said order was given in payment of a town bounty to the plaintiff, who enlisted on Monday, September 19th, 1864, by the procurement of John W. Webb, one of the selectmen of the town of Maidstone upon the promise from Webb that he should receive the sum of $800. town bounty. He was mustered in about the 23d of September, 1864, to the credit of Maidstone, and was discharged June 1st, 1865. The contract which Webb made was known and approved by the other selectman, P. R. Follansbee. The town defended upon the ground that the selectmen had no authority to make this contract on behalf of the town. In addition to other orders from the office of the Adjutant'and Inspector General of Vermont, referred to in the opinion, there was an order or circular from the same office announcing that the Governor had procured the War Department to allow a credit to Vermont upon the quota of the state on account of errors brought to the notice of the Department, and distributing this credit to the several towns, by which distribution Maid-stone is credited one (1.) This order or circular was dated September 17th, 1864, and was received by the selectmen the morning after they enlisted the plaintiff and made their contract with him to pay him the bounty of $800., that is, on Tuesday, September 20th5 1864,</p> <p>The other facts are sufficiently stated in the opinion.</p> <p>The court rendered judgment for the plaintiff for the amount of the order and interest. Exceptions by the defendant.</p>

<p> Challenge of Jurors. Statute, ponfessions. Evidence. New Trial. </p> <p>A respondent is not obliged to exhaust his peremptory challenges before challenging for cause.</p> <p>Section 4, chapter 120, General Statutes, was designed to secure the right of challenge, as it had long existed, at common law, limiting the extent of it, but not varying the mode of using it.</p> <p>If any part of a confession of a respondent is proved, the whole must- be as made, though portions of it tend to implicate a confederate respondent, but it must be received under instructions to the j ury that it would be evidence only against him who made it.</p> <p>A variance between an indictment and the copy furnished the respondent, in that the former charged the respondent that he aided to conceal the goods stolen, and the latter that he received said goods, held not sufficient to sustain a motion for a new trial.</p>

<p> Agency. </p> <p>If A. deals with H., supposing H. to'be the agent of C., and C. knows H. is acting in that capacity and permits it, then H. is the agent of C. so far as A. is concerned and C. is bound by H.’s acts, and H. would not be personally liable to A.</p> <p>B. was an agent of an express company, which used as an office the defendant’s book store. B. arranged with the defendant that when B. was out delivering packages about town, as his duties required, the defendant should receive packages for the company and give the company’s receipts therefor, and he had done so for a long time prior and subsequently to the delivery of the package in question, with full knowledge and permission of the company. The plaintiff delivered, the package to the defendant believing him to be the agent of said company, and the defendant gave a receipt in the name of the company. Held, that the defendant was the agent of the company to receive the package, and his receipt was as binding on the company as B.’s would have been, therefore he was not personally liable to the plaintiff for the package which was lost.</p>

<p>General Assumpsit. Plea, general issue. Trial by jury June Term, 1866, Steele, J., presiding.</p> <p>The plaintiffs elaimed to recover of the defendant one-third of the sum of $1285.48 and interest, which they had paid to satisfy an obligation on which the defendant was a co-surety with them. The obligation was dated October'29th, 1860, in favor of Lyndon Bank, and was signed by Miller & Trull, who were principals, and by the following persons who were sureties : Truman Prescott and Charles Ingalls, (the plaintiffs,) Selim Newell, (the defendant,) Charles Plowe, Charles Hill and P. M. Wilmarth. It appeared that Howe, Hill and Wilmarth were insolvent and had been^Snce before the time the obligation was satisfied.</p> <p>The principals, Miller & Trull, failed^TThe plaintiff Prescott’s property was attached by the LynigSlPlsank. He called on his co-sureties to help him, and amoqggpRTrest upon the defendant. The testimony on the part of the pMfflHs tended to show that none were able to aid unless the defendjjg^His, and that he neglected to aid, and that Prescott and Ingai®BHo were both responsible, finally agreed with each other that thjsyjjlwsuld stand together and take the whole thing equally upon their shoulders and suffer alike.' Accordingly that on the 28th day of August, 1862, they took up the obligation and removed the attachment, on Preseott’s property ; that they paid or took up the obligation as follows : By cash, $621.37 ; by note $664.; that of the cash Prescott paid $821.87, and Ingalls $300. and that when they paid their note Ingalls paid more than Prescott, so as to equalize the payments as between Prescott and Ingalls. They, the plaintiffs, testified that they “ stood together ” on this-mat-' ter when they found the other sureties could not pay or would not, and that the whole matter was understood and agreed between them to be “joint and’ equal as far as they were concerned,” but it appeared that they paid their cash, each from his own individual resources, and that when they paid their note it was also paid from individual resources ; that in fact there was no joint fund between them, and no joint transaction except this. The note was signed by Prescott and by Ingalls, and also by one Pike and one Howe, the last of whom was a co-surety on the obligation.</p> <p>There was testimony tending to show that Howe and Pike signed at the request ofj and as an accommodation to Prescott and Ingalls, and were simply sureties for them ; that they did not expect to pay the note, and were not called on to do so ; and that the fact that Howe was a co-surety on the obligation was not the reason of his signing the note, but that Prescott and Ingalls took the whole thing on their shoulders; and that it was so understood between Prescott and Ingalls and Howe, but that Howe was willing to pay his share of the loss if he should ever be able, and was present and advised about the settling up of the obligation with the bank.</p> <p>The defendant was not present at the time of the settlement with the bank, but was invited to be present and neglected to come, and was therefore unaware of the manner of settlement. Some of the evidence tended to show that I-Iowe signed as principal and Pike only as surety, and the defendant claimed that all the testimony tended to show that such was the case and excepted to the court’s ruling on that point to the contrary.</p> <p>The defendant insisted, after the evidence on both sides was in and before argument, that the facts as the plaintiff claimed them, did not warrant a joint action, but the plaintiffs should have sued separately, but the court ruled otherwise for the purposes of this trial, to which the defendant excepted.</p> <p>The defendant also insisted that if Howe was, as the plaintiffs claimed, a mere surety on the note for the plaintiffs, it would operate as a discharge, or as giving time to Howe on the amount of the note, and thereby operate as a discharge of the whole claim, so far as the plaintiffs were concerned. The court ruled otherwise to which the defendant excepted.</p> <p>The jury rendered a verdict for the plaintiffs for $526.18, and of which they found specially that #271.84 arose from the payment by note, and $254.84 arose from the payment by cash. No exceptions were taken to the charge except that it conformed with the above rulings, which were excepted to.</p> <p>I. The plaintiffs cannot maintain a joint action under the circumstances. While the implied promise of a principal to indemnify his sureties is regarded as made to them jointly and severally or to each and to all, the implied promise of a co-surety to indemnify his co-sureties, is several or each to indemnify every other, and not to indemnify the others jointly.</p> <p>But even as against the principal, sureties can maintain a joint action only when they pay out of a joint fund or create a joint fund on their joint credit for the payment. Shelby v. Steele, 5 Esp. 194; Graham v. Robertson, 2 T. Rep. 282 ; Brand v. Boulcott, 3 B. & Bing. 235 ; Birkley v. Presgrave, 1 East, 220 ; Coihyn on Con. Yol. 1, 160 ; Osborne v. Harper, 5 East, 225 ; Pearson v. Parker, 3 N. H. 336 ; Fletcher v. Jackson, 23 Yt. 593 ; 1 Parsons on Con. 34; 1 Chitty’s Plead. 4.</p> <p>In this case the payment was made out of the plaintiffs’ private and separate funds. To make the fund joint the plaintiffs must he equally interested in the same, which was not true either in the cash paid or the note given in part in discharge of the obligation to the bank.</p> <p>II. If, as the jury have found, Howe was but a surety for Prescott and Ingalls on the note for $664., which was a note on time, they, Prescott and Ingalls, could not have sued Howe for his contributive share till said note became due ; and said transaction amounted to giving Howe time to pay his share. The giving of time to one co-surety operates the same as giving time to the principal at least so far as the contributive share of that co-surety is concerned, and so far at least discharges the other co-sureties, and we think wholly discharges them.</p> <p>maintained that the plaintiffs were properly joined in this action. Chitty’s PI. p. 11 and 42 ; Chitty on Con. p. 597 and note; Chandler y. Brainerd, 14 Pick. 285; Doolittle v. Dwight et al., 11 Met. 561; Graham v. Robertson, 2 Term, Rep. 285.</p>

Book Account. *Exceptions were filed to the auditor’s report. The ease was heard on the report and exceptions at the December Term, 1865, Steele, J. presiding, and judgment was rendered for the plaintiff, to which the defendant excepted.

Assumpsit in one speeial count, and in tlie general counts. The writ was put into tlie hands of one A. J. Albee to serve, who made service and signed his return as first constable.

Petition for Mandamus. The petition was dated December 22d, 1865, and was addressed to the Bennington county supreme court, January Term, 1866.

<p> Mortgagee in Possession: Bents and Profits. Waste. Covenant. Nominal Plaintiff. </p> <p>The right of the mortgagor on redemption to call the mortgagee in possession to account for rents and profits is an incident of the right to redeem, and must like it be enforced at equity.</p> <p>The right to hold the mortgagee responsible for -waste which occurred during the period of the mortgagee’s possession, after condition broken, stands on the same ground as the right to an account for rents and profits, and is only a right at equity.</p> <p>The law cannot imply that the mortgagor after redemption is entitled, in the mortgagee’s name against his will, to sue for a breach of a covenant previously made by a third party with the mortgagee in possession, relating to repairs; because at law, it is not the mortgagor but the mortgagee in possession who is interested in the estate and its repairs, and is entitled to damages for its mismanagement or waste. The entire legal interest is in the mortgagee in possession after condition broken.</p> <p>M. the mortgagee in possession after default, let D. occupy under a covenant with him by D. to keep the estate in repair. L. the mortgagor redeemed and sued D. at law in M.’s name and against his will, but with an 'offer of indemnity for a breach of this covenant which occurred before L. redeemed. Held, that the action could not be sustained.</p>

Assumpsit. — The ease was referred, and was tried upon the referee’s report at the January Term, Orange County, 1866, PbcK, J., presiding, when judgment was rendered for the defendant, — to which the plaintiff exeepted. The referee reported that “ to the first eight items of the plaintiff’s account, amounting to $15 75., the defendant insisted upon the statute of limitations.

<p> Soldier’s Will. Statute. Military Service. </p> <p>The exception of the statute, in respect to soldier’s wills, provided in $ 9, eh. 49, General Stamtes, is held to apply to the case of soldiers in the performance of military service in the enemy's country, or in the soldier’s own state or country in ease of insurrection or invasion. The words “actual military service” should be understood in this restricted sense.</p> <p>But it is not necessary in order to make a valid soldier’s will that the soldier should be in extremis, when he is in the enemy’s country, performing militaryservice, whether in camp, campaign or in battle, such service is actual military service, within the letter and spirit of the statute.</p> <p>In September. 1862, G. enlisted and joined his company and regiment in camp at Worcester, Mass., was there mustered in, and soon after, while still there, wrote and signed an instrument, which was defectively executed as a will, but intending the same to be his last will and testament, provided he died during his term of enlistment. Before the expiration of said term he died without having been discharged or mustered out. Held, that the instrument was invalid as a will.</p> <p>But while G. was in North Carolina with his regiment, the custodian of said instrument, who was named therein as one of the executors, wrote to G. making inquiries in respect to one of the bequests. G. wrote a letter in reply, in which he referred to said instrument, and pronounced it his will, and explained his meaning in respect to said bequest. Held, that the instrument and letter are to be taken, considered and treated as constituting one instrument; that the import of the letter is substantially the same as if G. had said I now a£opt said instrument as my last will and testament; and that as the letter was written while G. was in actual military service, within the meaning of the statute, it gave testamentary operation to said instrument. Barrett, J., dissenting.</p>

This case was an appeal from a decree of the probate court for the district of Fairhaven, approving and allowing a certain instrument in writing as and for the last will and testament of Stukely Thornton, late of Castleton, in said district, deceased.

Assumpsit. The defendants filed a motion to dismiss, and also a plea in abatement. The plaintiff demurred to the motion and plea. The court, at the Orange County, January Term, 1866, Peck, J., presiding, pro forma, decided the motion and plea sufficient, and that the writ abate, — to which the plaintiff excepted.

(cross bill.) [in chancery.] Bill in Chancery. *Tlie facts in this case are sufficiently-stated-in the opinion of the court.

This was an action on boob. At the March Term, 1866, Peck, J., presiding, the court rendered judgment on the auditor’s report for the plaintiff to recover against the defendant Evans, and in favor of the defendants Mead and Stratton to recover their costs. To the judgment in favor of Mead and Stratton, the plaintiff excepted. The plaintiff’s account was for five cases of boots and interest.

To mate his pleading concise, simple and accurate, the pleader should allege with clearness and certainty all that is material, and should omit to allege any thing else. This was an action on the case for malicious prosecution. The defendant demurred to the declaration, assigning twelve causes of demurrer. The case was heard at the September Term, 1866, Piekpoiht, Ch. J., presiding.

This was an action of special assumpsit. Plea, the general issue, and trial by jury, September Term, I860, Pieepoint, Ch. J., presiding.

This is an action of assumpsit commenced before a justice of tbe peace, and came to the county court by appeal, at its April Term, 1864. The court at that term adjourned April 15th. Before the justice the declaration was the general counts in assumpsit only.

<p>This was an action on book, commenced, originally, in the county court, and was referred to an auditor, who reported a balance of one hundred and two dollars due the plaintiff.</p> <p>The defendant insisted before the auditor that the court had no jurisdiction of the case, but no motion to dismiss it, upon that ground, was made in writing, nor was any entered upon the docket, in the county court. The court rendered judgment, September Term, 1866, Pieepoint, Ch. J., presiding, pro forma, upon the report for the defendant, — to which the plaintiffs excepted.</p> <p>The items of the plaintiffs’ account were for paint and labor. The facts found by the auditor are substantially set forth in the opinion of the court.</p> <p>maintained that the county court had original jurisdiction of the case, and cited Joyal y. Barney, 20 Vt. 154; Cooley v. Aiken, 15 Vt. 322 ; Hefflin v. Bell, 30 Vt. 134; Henry v. Tillson, 17, Vt. 479 ; Mason v. Potter, 26, Vt. 722 ; Nichols y. Packard, 16 Vt. 91.</p> <p>The test of jurisdiction in book account is the debit side of the actual booh of the plaintiffs, at the time of the commencement of the suit; not that of any account varying from his book, which he may present before the auditor. G-. S. p. 279, § 20 ; Stone v. Winslow, 7 Yt. 343 ; Scott & Go. v. Lampson, 9 Yt. 341; Paul v. Burton, 32 Vt. 155.</p> <p>The charges of paint which are carried out at thirty cents per pound can not stand, but must, as a test of jurisdiction, be reduced to twenty cents per pound, that being all that the plaintiffs claimed. Gatlin v. Aiken, 5 Yt. 179 ; Phelps y'. Wood, 9 Yt. 403 ; Scott & Go. v. Sampson, 9 Vt. 339 ; Hodges v. Fox, 36 Yt. 74 ; Brush v. Hurl-burt, 3 Vt. 46 ; Nichols v. Packard, 16 Yt. 91. The blank charges for paint cannot be legally carried out as a test of jurisdiction at mpre than twenty cents. Nor should the court fill the blank charges for work, prior to June 23d, 1865, at more than $2.25 per day.</p>

This was an appeal from the disallowance by the commissioners on Patrick Farrell’s estate, of a claim presented by the plaintiffs against said estate.

<p> Scire Facias. Fvidence. Impeachment. Statute. Sheriff. </p> <p>where the question before a jury in a scire jactas action was whether C., the plaintiff ’s attorney in the former suit, Hiñe v. Nichols, directed T., the officer, to whom he gave the writ for service, to take the receipt of M., and not remove the property, and the officer had testified that the attorney did give such direction, and the attorney had testified that he did not, and it was proposed to have him further testify “that his uniform habit and course of business as an attorney, before and at the time of issuing said writ, in the case of delivering writs of attachment to officers for service, was not to give instructions to such officers to take receiptors, or as to whom they should take as receiptors, but to abstain from giv-giving such instructions in respect thereto,” it was held that he should have been permitted to have testified as proposed.</p> <p>C. had testified that he did not give such directions to T. as the defendants claimed and gave evidence to prove. Nichols for the defendants testified that a short time after the service of the plaintiff's said writ, C. told him that the plaintiff had told him, C., to direct T. to take M. as receiptor. The court permitted this testimony to he considered by the jury as tending to impeach C. Held, that in this there was error.</p> <p>The court properly excluded the plaintiff from proving that the plaintiff never directed C. to direct or authorize T. to take id. as receiptor.</p> <p>The execution in favor of Nine againet Nichols containing an indorsement thereon in the handwriting of C. was properly excluded as evidence, the parties being agreed as to the amount the plaintiff was entitled to recover, if entitled to recover at all.</p> <p>Section 73, chapter 30, General Statutes, providing that in casé of the removal of sheriff or high bailiff from the state, etc., that the action of scire facias may be brought directly upon the recognizance of such officer and his sureties, held, to embrace all causes of action whether existing at the time it took effect or accruing thereafter, and so continued until the enactment of 1865, by which its operation was limited to causes of action arising subsequently to the second day of November, 1860. That act was virtually a repeal of said section 73, as to causes of action that accrued prior to the time named in it.</p> <p>Section 19, chapter 4, General Statutes, providing as to the effect of a repeal of a law on actions then pending, was not designed to be limited to eases of formal repeal in literal terms, but to save suits depending on statutory provisions, where, on the bringing of the suits, the provisions on which they depended had ceased to be operative by reason of other enactments; therefore where a cause of action had accrued upon an officer’s recognizance under the provisions of sec- . tion73, chapter 30, General Statutes, prior to November 2d, 1860, but the action was pending at the time of said enactment of 1865, it was held to be one of the class of suits embraced by said section 19.</p>

This was an indictment against Charles H. Potter and John Ward, alias Jerome La Yigne, for the murder of one Sally Griswold of Williston, and upon trial by jury, at the April Term, 1866, PieR-point, Cb. J., presiding, the jury returned a verdict of not guilty, as to Potter, and a verdict of guilty, as to Ward, alias La Yigne.

<p> Pleading. Abatement. </p> <p>It seems that if the facts, which constitute the cause of abatement, do not appear on the face of the record, but are brought forward by averment, to be proved by evidence aliunde the record, and so are the subject of an issue to be tried by jury, a motion to abate is not the proper mode of taking the objection.</p> <p>But if the matter may be presented for issue and trial by motion, still it should be so presented by averment that a traverse of the averment would form an issue, the finding of which either way would definitely settle the legal rights involved.</p> <p>The writ in question was made returnable to the Franklin county court. The motion to abate averred that the plaintiff resided in Buffalo, New York, and the defendant in Cambridge, Lamoille county, Vermont. Held, that the motion was defective in that the averments were not such that the issue made by a traverse of them found either way, would settle the question of the right to bring the suit in Franklin county.</p>

Assumpsit. Plea, the general issue, and trial by the court, September Term, 1886, 'Wilsou, J. presiding. It appeared that the plaintiff in March, 1861, owned seventy pelts. The defendant owned a quantity of pelts, and at the request of the plaintiff the defendant took the plaintiff’s pelts and sent theca to market with the defendant’s pelts.

Action on the case to recover damages for a personal injury which it was claimed that the plaintiff, Rebecca Walker, had sustained by reason of insufficiency of a highway in Westfield. Plea, the general issue, and trial by jury at the April Term, 1866, Steele, J., presiding. The plaintiffs’ evidence tended to show that on the 4th of November, 1863, they were passing over the “ notch road,” that John Walker led the horse down the steep places, his wife and two children riding.

Tins was an action on the case, for damages which the plaintiff alleges that he sustained by reason of the insufficiency of a highway in Fletcher. Plea, the general issue, and trial by jury, Steele, J., presiding.

This was an action of book account. The auditor reported the following facts: It appeared from the testimony offered that the plaintiffs, Roderick Baldwin, Henry R. Baldwin and Edwin D. Baldwin, by their own arrangements and agreement, were joint owners of a quantity of hay raised on land by them jointly carried on, and they had a joint interest in the same, both as to profit and loss, and that Henry R. Baldwin, one of the plaintiffs, sold and delivered to the defendant…

This was an appeal from the decision of the probate court, allowing the will of John Eobinson. The appellant pleaded: First, that the said John Eobinson, at the time of making his said will, was not of sound mind. Secondly, that the. said Lewis Williams, by undue influence, procured the said John Eobinson to make said will. Thirdly, that before the making of said will, the probate court for the district of Manchester, adjudged the said John Eobinson to be insane.

This was an action of indebitatus assumpsit, on the common counts for money, work, labor, and materials, and goods sold, etc. The writ was returned to, and entered in the county court at its June Term, 1866, and the plaintiff’s attorney then indorsed on the writ a statement that the sole claim of the plaintiff in this action was upon three promissory notes, dated the 12th day of July, 1861, and signed by the defendant — one for two hundred dollars, payable to the order of…

[in chancery.] Bill in ChanceRY. The bill set forth the incorporation of the Western Vermont Railroad Company, the construction of the road, the mortgage of the same to the complainants as trustees, and the foreclosure of said mortgage; that in the original construction of the road the company took, in pursuance of the provisions of their charter, certain lands of the defendant McAuley, in Arlington, Vermont, and located and built their road thereon ; that before taking said…

This was an action of debt on a judgment rendered by the superior court of Massachusetts. The defendant pleaded nul tiel record, and other matters as set forth in the opinion of the court. The plaintiff joined issue as to the plea of nul tiel record, and demurred as to the defendant’s other pleas.

This was an action of tori with counts in trespass and trover. The case was heard upon demurrer to the defendant’s second pipa to the first two counts of the plaintiff’s declaration.

Book Account. The case was heard upon the auditor’s report at the June Term, 1866, Steele, J., presiding, when judgment was rendered for the plaintiff; exceptions by defendant.

This is an action of Book Account, entered June Term, 1858, and continued from term to term to the December Term, 1864, of the county court, POLAND, Ch. J., presiding, Prior to the beginning of the suit, one Luther C. Porter commenced a suit against said Wheeler, and trusteed said Fuller, and at the commencement of this suit, the plaintiff well knew of the commencement and pendency of the trustee suit, and both suits were returned to the court at the same term.

Assumpsit, to recover on the instrument set forth in the syllabus above. The first count of the declaration set forth the instrument and averred that it had been duly assigned, and ordered to the plaintiff in words and figures as follows j “Pay to John Smilie or order,” signed “James Smilie,” dated September 1st, 1865.

This was an action of trover for several promissory notes. Plea, general issue and trial by jury at the December Term, 1864, Poland, Ch. J., presiding. The plaintiff’s evidence tended to prove the following facts: Sarah Cole, the plaintiff’s intestate, was the widow of Elijah Albee, of Morgan, who died several years since leaving a considerable estate, out of which-the said Sarah received, as his widow, the sum of three thousand 'dollars all in well secured notes.

Trespass for two oxen. The defendant pleaded three several pleas in bar, to all of which the plaintiff demurred specially. The court at the June Term, 1865, POLAND, Ch. J., presiding, pro forma, decided the pleas sufficient, — to which the plaintiff excepted.

This was an action of trespass for a mare. The .defendant pleaded the general issue, and gave notice that he would justify the taking as collector for the town of Lemington upon a tax against the plaintiff. Trial by jury at the September Term, 1865, Poland, Ch. J., presiding.- The defendant admitted the taking of the mare.

This was an action of assumpsit, which was referred. The court, Pierpoint, Ch. J., presiding, rendered judgment on the referees’ report for the defendant, — to which the plaintiff excepted. , The referees reported as follows : “On or about the 3 5th of September, 1860, the plaintiff hired the “ defendant, who had great experience and skill in the buying, man- “ agement and sale of horses, to go with him to Baltimore, Maryland, “ to assist him in selling a lot of horses,…

Scire Facias upon a recognizance. Trial by court at the April Term, 1866, Steele, J. presiding. The recognizance was entered into by the defendant, August 10th, 1864, as surety for John Du Yarnie, who was confined in jail upon a charge of horse stealing. The recognizance was returned to the clerk of the court and filed October 10th, 1864.

This canse was an act of trespass guare, clausum fregit, with counts in trespass on the case joined agreeably to the statute. The action, by the agreement of the parties, was referred, to be decided according to law, and the defendant filed exceptions to the report of the referees.

This was an action on booh account, originally commenced before a justice of the peace, and came to the county court on the appeal of the defendant. On the entry of the appeal in the county court, the defendant filed his petition or motion in writing, craving oyer of the plaintiff’s account against him, and also a plea of the statute of limitations, — both being filed on the 12th day of September, 1865, which was the first day of the term.

This was an indictment in four counts for violation of the statute regulating traffic in intoxicating liquors. Flea, not guilty, and trial by jury at the September Term, 1866, BabRett, J. presiding. All the counts except the fourth were abandoned by the prosecuting attorney, and the respondent was tried upon that count alone.

<p> Evidence. Guardian and Ward. </p> <p>S. Rad boarded and clothed the plaintiff's wards by agreement, and the plaintiff had charged the same, with other things furnished the wards by S., in his guardian account with the probate court. After the death of S. the plaintiff presented a claim against his estate, and the defendant filed an offset, and in support thereof, offered said account as taken from the probate record, with an offer of other proof that some of the items therein were still due fromjhe plaintiff. Held, that the account was evidence as an admission by the plaintiff that his wards had had of S. the amount of the bills therein charged, and that he, as guardian, was once liable for them.</p> <p>The plaintiff not being a competent witness, his agent who prepared said guardian account could not be allowed to testify as to the plaintiff's explanations of the charges when the account was being prepared; it was not part of the res gestae.</p>

This was an action of general assumpsit, to recover the sum of $325. received by the defendant to the use of Samuel W. Hudson. Plea, general issue, and special plea in offset.

This was an appeal from a decree of the probate court disallowing a claim presented by John E. Lytle, March 30th, 1860, as a contingent claim against the estate of Eichard Bond, deceased.

This was an action of assumpsit, which, was referred, and the referee reported the following facts: Edwin L. Bartholomew, trav-elling agent of the plaintiff, employed to procure persons to canvass territory for the purpose of selling wringing machines manufactured by the plaintiff, on the 5th day of November, 1863, at Brattleboro, concluded an agreement with the defendant, Morris, by the terms of which Morris was appointed to sell machines in the towns of Brat-tleboro,…

This was an audita querela brought to set aside a judgment of a justice of the peace for denying an appeal. Plea, the general issue, and trial by court, at the April Term, 1866, Wilson, J., presiding.

This was an action of hook account. The auditor reported ,-thar, in 1858 and 1859 the defendant was a manufacturer of safes in Troy, New York, and employed one Sadler as his traveling agent, and gave him authority as such to sell safes according to a schedule of prices for the various sizes, and allowed him twenty per cent, commission, hut gave him no authority to appoint sub, or local agents anywhere.

This was an action on book account, originally commenced before a justice of the peace, and came to this court by appeal by the defendant. The writ bears date September 19th, 1864 ; the ad damnum and sum demanded in the declaration are each one hundred dollars. The record did not show that a United States revenue stamp was affixed to the original writ issued by the justice.

INDICTMENT in two counts, for rape and assault with intent to commit rape. Plea, not guilty, and trial by jury at the December Term, 1866, Baeeett, J. presiding. The State’s Attorney called as a witness Amaretta Marcott, named in the indictment, whose testimony tended to prove the allegations in the indictment, and that the respondent had had sexual connection with her against her will.

Assumpsit upon an award. Plea, the general issue, and trial by the court by consent of parties at the December Term, 1866, Bae-eett, J., presiding.

Assumpsit to recover a town bounty. Plea, the general issue and trial by jury, at the December Term, 1866, Barrett, J., presiding. The plaintiff excepted to the charge of the court, as set forth in the opinion. Verdict for the defendants.

<p> Booh Account. Account. Pleading. Practice. </p> <p>Difference between action of hook account and action of account.</p> <p>In book account no plea in bar is good which puts in issue the merits of the plaintiff’s account, because it takes the trial from the auditor to the jury.</p> <p>The defendant’s first plea in this action on book, set forth a trial by jury of the very matter for which this suit was brought, and a verdict taken by the consent of the parties in the absence of the justice before whom the suit was tried, with the agreement that it should have the same effect that it would have if the justice were present, and a settlement of the matter between the parties according to the verdict, and a denial that there was any other account between the parties. The second plea was the same as the first, omitting the statement of the settlement. Held, that the pleas involved the merits of the plaintiff’s account, and were insufficient upon demurrer,</p> <p>A demurrer admits only such facts as are well pleaded, and the defendant had no right to plead these matters in bar of a judgment to account.</p>

<p>This was an action of special assumpsit with, two counts. Plea, the general issue, and trial by jury at the June Term, 18G6, Pece: J., presiding.</p> <p>It was in evidence for the plaintiff that during the years 1861-2-3, the plaintiff was duly elected commissioner of Orange county, for the appointment of agents in the different towns to sell liquors. It was also in evidence, on the plaintiff’s part, that early in the year 1862, to-wit, in March or April, the plaintiff, as such commissioner, appointed Austin L. Coburn, of West Fairlee, as agent of that town, to sell for and during the year ensuing. - And that at or about the time of said appointment, the said Coburn executed and delivered, together with the other defendants as sureties for said Coburn, an obligation, binding themselves to pay the plaintiff for all liquors furnished said Coburn, to be sold by him as agent for said town, under his appointment by the plaintiff. The plaintiff offered the obligation in evidence, and offered to show that the plaintiff, during said official year, furnished and supplied Coburn with spirituous liquors, from time to time, under and in accordance with said contract, for which the defendants had not paid him.</p> <p>The counsel for the defendants objected on the grounds that the instrument on which this action is brought, is one that the plaintiff had no'legal right to make, and that the same is void in law, and that no action would lie upon it for recovery of said liquors ; and the court so holding, ruled that the agreement and other proof offered, could not be given in evidence in the case, and directed a verdict for the defendants, — to which the plaintiff excepted. Other facts are stated in the opinion.</p> <p>I. The right of an agent to purchase liquors for the legitimate business of his agency, is settled by the decision of this court.</p> <p>II. It is urged that the county commissioner cannot sell to an agent, even for the business of the agency. It is not pretended that there is any statute prohibiting the commissioner to manufacture, or sell, for legal purposes ; but it is claimed that if he is permitted so to do, it might be a temptation for him to-encourage the agent to violate the law, which would be against the policy of the law. ¥e submit that this is a question for the legislature. Never did a court carry the policy doctrine so far. If the people choose to elect for commissioner a distiller, or liquor dealer, and do so, knowing the quality of his goods, out of considerations of policy, they can only be restrained by the legislature. 3 Stark. Ev. 1217; Hodgson v. Templo, 5 Taunt. 186, (1 E. C. L. 67 ;) 10 B. & C. 93, (11 E. C. L. 29 ;) Richardson v. Medish, 2 Bingh. 229, (9 E. C. L. 391;) Keip v. Seligman, 8 Barb {N. Y.) 439.</p> <p>I. The contract offered in evidence is directly in violation of the statute. The statute does not authorize the comnlissioner to sell or furnish intoxicating liquors, but expressly prohibits him. G. S. ch. 94, § 1. The prohibition in this section applies as well to the commissioner as to any other person.</p> <p>II. The sale by the commissioner or the agent on his own account would be as unauthorized and illegal as the sale by any other person, and the sale by the agent for any purpose except for what is contemplated by the law would be illegal, State v. Parks, 29 Yt. 70 ; State v. Fisher, 35 Yt. 584.</p> <p>III. Any contract for the sale of intoxicating liquor, contrary to the provisions of the statute, is void and no action can be maintained upon it. Converse v. Foster, 32 Vt. 828.</p> <p>IY. This contract is not only in violation of the express provision of the statute, but it is against the policy of the statute. It is the policy of the law to take all inducements away from the agent to sell more than the legitimate purposes of the sale require ; and he therefore is not allowed to take any of the profits of the sale. It is also the policy of the law that none but good liquor shall be sold. And it is the duty of the commissioner to see that this object and purpose of the law is carried out. By the contract it became the interest of the commissioner to have the agent sell all the liquor he could, whether good or bad, against the policy of the law.</p> <p>Y. That the agent was equally in fault does not make the condition of the plaintiff any better. uln pari delicto, potior est conditio defendentis.”</p>

This was an action on the case against the defendant for damages occasioned to the plaintiff by the want of skill of the defendant as a surgeon, in setting the plaintiff’s arm, and for negligence and inattention to the same after it was set. Plea, the general issue, and trial by jury, June Term, 1866. The plaintiff is the minor son of the next friend, Daniel C. Wilmot, and was, at the time of the injury complained of, about seven years of age, and resided with his father.

This was an action of trover for a quantity of hemlock bark; about thirty.seven or thirty-eight cords. Plea, the general issue, and trial by jury at the June Term, 1866, Peck, J., presiding.

Swift against the estate of Martha Kennison, and from the order and decree of said court in the division and distribution of said estate, after paying the debts and costs of administration.

This was an action of trover for a wagon and harness with counts in case. Plea, general issue, with a tender of amends. Trial by jury at the June Term, 1865, Poland, Cli. J., presiding. The wagon and harness sued for, together with a horse, were attached by the plaintiff, who ■ was then sheriff of Orleans- county, on the 8th day of June, 1858, on a writ in favor of George R. Holmes against William Hull, of Stanstead, Canada.

This was au action of trover for the conversion of twelve tons of hay valued at $>120. Plea, the general issue, and trial by jury at the December Term, 1865, Wilson, J., presiding.

Action of Ejectment for Lot No. 1, Kange 12, in Victory. Plea, general issue, and trial by jury at the March Term, 1866, Steele, J., presiding. Writ was dated 12th of August, 1865. The town of Victory was chartered September 6th, 1781.

This was an appeal from the decree of the probate- court, allowing the probate of the nuncupative will of Joseph .Pi Safford. Trial by court at the December Term, 1864, Aldis, J., presiding. The following facts were admitted in the case : — Joseph P. Safford,. the deceased, enlisted as a soldier in the third regiment of Vermont Volunteers, company E., from Elmore, Vermont.

This was an action on book account. On the hearing upon the auditor’s report, at the March Term, 1866, Kellogg, J., presiding, the court decided that the facts stated in said report constituted a defence to the whole of the balance reported as due from the defendant to the plaintiff on book account, and that the defendant was entitled to a judgment against the plaintiff on the report, and rendered judgment in favor of the defendant against the plaintiff on the report…

Assumpsit upon the common counts to recover for a quantity of iron. Plea, the general issue, and notice of special matter in defence. Trial by the court at the September Term, 1866, Kellogg-, J., presiding. The court found that the iron was paid for in full, and rendered a judgment for the defendants to recover their costs. To this decision and judgment the plaintiffs excepted. The facts found by the court are stated in the opinion.

This was an action of book account. On the hearing of the auditor’s report and exceptions thereto, at the June Term, 1866, Kellogg, J., presiding, the court, pro forma, decided that the plaintiff was entitled to recover of the defendant the balance reported by the auditor as due from the defendant to the plaintiff, to balance book accounts between them, and rendered judgment in favor of the plaintiff against the defendant accordingly, — to this decision and judgment the…

Ejectment for the recovery of a parcel of land in Dorset. The plaintiff’s seizen was laid April 1st, 1862 ; the ouster of the defendants April 2d, 1862. The damages demanded were $2060. The plaintiffs’ writ was dated May 23d, and served May 24th, 1865. Plea, the general issue, and trial by jury at the June Term, 1866, Kellogg, J., presiding.

Trover for a cow. The action was referred, and on the hearing, on the referee’s report at the December Term, 1866, Kellogg, J., presiding, the court decided that the plaintiff, who was the purchaser of said cow, was entitled to recover judgment against the defendant for the sum of forty dollars, as reported by the referee, and also for his costs; and judgment was thereupon rendered in favor of the plaintiff against the defendant accordingly.

[IN CHANCERY.} Bill in Chancery. The bill states that on the 16th day of August, 1853, the orator was well seized in fee of the following described land, situated in Winhall, to wit: the whole of lot No. 10, in the 9th range, and the west half of lot No. 6, in the 10th range, containing in all two hundred and fifty-five acres, and being then worth the sum of twelve hundred dollars; that previous to and on said 16th day of August, the orator was indebted to Ira Marks, of…

£ IN CHANCEET. ] Bill m ChANCErt. The oratrix sought to have a mistake in the certificate of a magistrate who took the acknowledgment of a mortgage deed, corrected by order and… Held: the acknowledgment of two grantors was sufficient. In Bradford v. Damson, 2 Ala., 203, it was held the body of a deed nfaybe referred to, to support a defective achnoioledgment. The mortgage is defective in not being acknowledged by the grantor agreeably to the statute. G. S. p. 448, § 4.

This was an appeal from a decree of the court of probate, distributing certain real estate in North Hero among the grand nephews of Abner… Held: that the words in the will, “my male heirs at law who may then” (at Mrs. Wads-worth’s decease,) “live in South Hero,” meant Clark S. Keeler, the nephew ; and that the grand nephews do not come within the terms of the will, therefore the decree of the probate court should be revised, and the land be all set to Clark S. Keeler.

* Action on the ease in two counts. The first count was for an obstruction of a private way; the second count, for an obstruction of a public highway ; both ways being the same piece, and situated in Burlington. Plea, the general issue, and trial by jury September Term, 1866 ; Pieiipoint, Ch. J., presiding.

Action on Ejectment. Plea, general issue, and trial by jury at the April Term, 1866, Steele, J., presiding. Verdict for the plaintiff for the premises demanded, and nominal damages. The question in dispute was with regard to the division line between the plaintiff’s and defendant’s land. They both own part of Marvin’s gore in Highgate, byJaileAlerived from one source. This goro is a triangle.

This was an action of trespass for false imprisonment and assault and battery, which was commenced by Cyrus Whitcomb in his life time ; he having died intestate after the entry of the action in this court, the case was prosecuted by his administrator. Plea, not guilty, with notice of special matter in defence. Trial by jury at the September Term, 1865, Kellogg, J», presiding.

This was an action of assumpsit on a promissory note executed by the defendant, for one thousand dollars, dated at Pittsford, Vermont, August 10th, 1863, and payable in thirty days after the date thereof to the order of C. M. Scofield at the Manufacturers’ Bank, Troy, and duly endorsed by the said C. M. Scofield. The plaintiff s declaration also contained the common money and other counts in indebitatus assump-sit.

This cause was an action of trespass de bonis asportatis, for taking and driving away a gray mare belonging to the plaintiff. Plea, not guilty, with notice of special matter in justification and defence; and trial by jury at the March Term, 1866, Kellogg, J., presiding.

This was au action of debt on a judgment. The action was heard and tried by the court, at the March Term, 1866, Kellogg, J. presiding, by agreement of the parties, on a§ u case stated.” On the said case stated, the court, pro forma, decided that the defendant was entitled to a judgment in the said action, and rendered a judgment in favor of the defendant and against the plaintiff accordingly. To this decision and judgment the plaintiff excepted.

Assumpsit to recover a town bounty. Plea, the general issue, and trial by tbe court, by consent of parties, at the Setember Term, 1864, Bakrett, J., presiding. It appeared on trial that when a man is mustered in, a copy of the enlistment contract is forwarded to the Adjutant General’s office, stating the name of the town in which he resides, and the quota upon which he is to be credited.

[ IN CHANCERY.] ' Bill in' Chancery. The case was heard upon bill, answer and testimony, at the April Term, 1866, when a pro forma decree was rendered dismissing the bill, and the orator appealed. The material facts in the case are sufficiently stated in the opinion of the court.

■ Assumpsit for money. The case was referred. At the May Term, 1866, Barrett, J. presiding, a pro forma judgment was rendered, on the report of the referee, for the plaintiff, for the sum found due and the costs, — to which the defendant excepted. The referee found that Susan W. Raymond was the daughter of Wilder Raymond.

Trespass with a count in trover for a quantity of hay. Plea, not guilty, and trial by court by agreement of parties at the May Term, I860, Barrett, J., presiding, when, pro forma, judgment was rendered for the plaintiff, — to which the defendant excepted.

Petition in Chancees-. The questions discussed and the fact» in the case appear in the course of the opinion.

<p> Equity. Injunction. Receivers. Conflict of Equity Jurisdiction. Mortgage. </p> <p>The ground on which courts of equity intervene, either by injunction or by the appointment of a receiver, is the preservation of the property and securities, either or both, which constitute the subject matter of- the litigation pending the controversy.</p> <p>Sut where the mortgagor or his assigns are in possession, and denying the right of the mortgagee to a foreclosure, the court will not, by preliminary injunction, predicated on the mortgagee’s asserted right at law, as mortgagee, transfer to him the possession pending the litigation; the most that can be done in such cases, is to appoint a receiver for the purpose only of preserving the property, and its rents and profits, from waste and diversion.</p> <p>And even wore the object of the hill to enforce a specific provision in a deed for the taking of possession on default and demand of payment, and an injunction were asked for to effect a transfer of the possession pending the litigation the sama rule and reason would apply as in case of a suit for the foreclosure of an ordiu-ary mortgage, while the question of the right of possession should be in litigation, and would be effectual against the granting of an injunction.</p> <p>Where a suit in chancery has been commenced in one county, and is still pending under an administrative or interlocutory decree, by the terms of which ther rights declared by it, as belonging to the respective parties, are to be exercised under the order and direction of the court in that county, the assertion of those rights must be addressed to the court that decreed them, and cannot be enforced by an independent bill returnable to the court of chancery for another county.</p> <p>While the court of chancery in each of the counties is the court of chancery of the State of Vermont, yet when sitting and acting in a given county, it is the court of chancery of the state of Vermont, in and for that particular county, and as such, i6 just as distinct from the court of chancery in and for any other county, as if it was a distinct and independent court.</p>