Volume 4 — Vermont Reports

This was an action of trespass for seizing and carrying away a horse and saddle belonging to the plaintiff. Plea, not guilty. At the trial in the county court, the defendant justified the taking of the property in question by virtue of a ■ writ of attachment against the plaintiff in favor of one Joña. B. Morion.

Action of assumpsit by the endorsee of a promissory note against the maker. At'the trial it appeared that the note in question was made payable to Joel Houghton or order, and by him endorsed to the plaintiff.

This was an action on booh account, and the questions in the case arose on objections filed to the report of the auditors. It appears that two auditors had been appointed to examine and adjust the accounts of the parties, and make report thereon at June term, 1830. These auditors met and examined the accounts pursuant to the rule and order of court, and made their report at said term in favor of the plaintiffs.

This was a writ of error brought to reverse a judgement ren-déred by the county court in favor of Hutchins and Pickett, against Mills Olcott. It appeared on inspecting the record that Olcott resided in Hanover,in the state of New-Hampshire, and that the writ against him had been served by attaching his real estate in the counties of Orange and Caledonia.

This was an action on the case, in which the plaintiñ declared against the defendant, that he, the defendant, undertook to take two boxes of lumber from the foot of the upper locks at White river… Held: that placing goods on the wharf is not a delivery to the consignee so as to discharge the carrier, even though there be an inability or refusal of the consignee to receive them.

This was an action on hoolc account, and was brought before the Court on objections filed to the following report of the auditors-made in the cause : “ Upon hearing the testimony introdticed'ih support of the parties’ claims, the auditors allowed the whole of the plaintiff’s account, excepting one item of $2,50 for making a coat, which appeared to have been twice charged by mistake.

<p>A party cannot complain of surprise, as a ground for a new trial, because a witness was introduced by the adverse party to prove what was directly put in issue by the pleadings.</p> <p>When a witness, who had become recognised for the prosecution of the suit, is introduced by the plaintiff, and is admitted without objection, the defendant will not af-terwards be entitled to a new trial on the ground of the incompetency of the witness. The objection should be taken at the trial, when the witness can be rendered competent by substituting other bail, or be rejected.</p> <p>A new trial will not be granted for new discovered evidence, unless such evidence make a clear case, and not be merely cumulative, leaving the question still doubtful, and only giving the party a chance before another jury.</p> <p>The Court must be satisfied that injustice has been done between the parties before a new trial will be granted.</p> <p>Neither will the Court grant a new trial when it is apparent it will not avail the-petitioner.</p>

<p>H having contracted to purchase a lot of land of S, executed his notes to S for the amount of the purchase money, and S obligated himself by bond to convey the land to H on payment of the notes. H entered and took possession of the land, but did not pay thenotes ; and consequently S did not execute a deed of the premises to H. After H had remained in possessien of the land several years he sold his interest therein to D, who, two or three years after, sold and conveyed his interest in the land to B. S having afterwards recovered a judgement against B in an action of ejectment for the seizin and possession of the premises, B filed a declaration for betterments-under the statute ; and it was held, that B might recover for all the betterments made by himself, and for those made by D, his grantor, provided D, at the time he purchased of H, supposed he purchased a title in fee, and did not pur, chase H’s right, merely, under the contract made with S ; and that B could notre-cover for any improvements made by H, there being no failure on the part of S to fulfil the contract.</p> <p>No recovery canbe had in a declaration for betterments founded on an alleged want of title in the defendant, {the recovering party in ejectment.)</p> <p>The statute which authorizes the defendant in ejectment to file a declaration for better-ments, is not unconstitutional.</p>

<p>This was an action of assumpsit, and the declaration contained three counts. ' The first was a special one founded on an alleged promise by defendant to deliver to the plaintiff a certain promissory note which the defendant had received under the circumstances hereinafter mentioned. The second count was for money had and received, and the third for goods, wares and merchandise, sold and delivered. The cause had been referred to a referee, who afterwards made the following report:</p> <p>“ It appeared in evidence,that in December, 1827, it was agreed betweeu the parties,that the plaintiff should buy of defendant a certain horse atthe priceof$55,and deliverto himanote against a third person, amounting to about $13, in part payment therefor, and that if plaintiff' did not within a certain number of days procure good security for the balance, he was to return the horse to defendant, and the note was to be forfeited and become the property of the defendant. In pursuance of this agreement the plaintiff received the horse of defendant, and delivered him the note in question. The plaintiff failed to procure the security required by the contract, and within a few days after the expiration of the time limited by the agreement, he sent back the horse to the defendant, and demanded that the note should be redelivered to him. It did not appear that defendant made any objection to receiving back the horse, but told the agent, whom plaintiff had sent with the horse, that he should not give up the note, unless plaintiff would pay him five dollars, which he said was as much as the note was w'orth. After some altercation between plaintiff’s agent and defendant, the defendant told him plaintiff might have the note if he would come after it, butthat he should sue him for damages. Defendant received the horse. This took place at some distance from defendant’s house, and he said he had not the note with him. On the next day in the forenoon the plaintiff called on the defendant, and demanded said note. The defendant said he had not the note with him, but said if plaintiff would stay till night and would go to bis house with him, he would give him the note ; but threatened to sue plaintiff for damages. The defendant at the time was at work at some distance from his house. The plaintiff refused to wait and go to defendant’s house, but insisted on having the note immediately. Several months after-wards, and previous to the commencement of the action, the plaintiff called at defendant’s house, and demanded the note of the defendant, who refused to deliver it to him. It appeared that previous to this time the defendant had disposed of the note, and had sot gotten it in bis possession. The note in question was not negotiable, and was not payable in money.</p> <p>If the court should be of opinion from the foregoing statement of facts, that the plaintiff ought to recover, then the reieree reports, that the plaintiff recover of the defendant the sum of thirteen dollars and fifty cents damages and his costs; and if from the foregoing facts, the court should be of opinion that the plaintiff ought not to ■recover, then the referee reports that the defendant recover his «SOStS.”</p> <p>The county court rendered judgement for the defendant, and the case was reserved for the opinion of this Court.</p> <p>contended, that there was good consideration for defendant’s promise to redeliver the note, and that he was bound to perform it — That if the defendant withhold the note, he does it without any consideration. He has not sustained any injury in consequence of the plaintiff’s keeping the horse a few days : the horse was not injured — That the agreement, that the note should be forfeited and become the property of the defendant, on failure of the plaintiff to procure the security for the balance of the value of the'horse, was unreasonable, un-concionable, and a gambling transaction.</p> <p>contended, that the facts contained in the report made a contract essentially different from the one set forth in the declaration, and did not at all support the declaration — That the general count for money had and received was not supported by the report,because the note sued for was not payable in money ; nor did it appear from the report the money had at any time been paid upon it — That the count for goods wares and merchandise was not supported,beca use promissory notes were not considered as goods, wares and merchandise, and did not come within the legitimate technical meaning of those terms— That by the terms of the contract, as found by the referee the note was forfeited, and had become the property of the defendant ; and it did not appear from the report that the promise made by the defendant to the plaintiff’s agent, to redeliver the note in. question, was founded upon any sufficient consideration.</p>

<p>This Court cannot reverse the decision of the county court in trustee actions, upon matters arising between the creditor and trustee, unless the facts are all placed upon'íhe recór'd in the county court, by a bill of exceptions, or otherwise.</p> <p>it makes no difference in this respect, whether the action comes up by appeal, or by exceptions to the decision of the county court.</p> <p>'Éxceptions should be drawn and signed by the judges, stating, that they found the facts as stated in the disclosure, or found such to be the facts, stating them, and, upon such facts, decide in favor of such a party.</p> <p>The Supreme Court are no more judges of the weight of evidence in such actions than they are'upon any writ of error.</p> <p>A trustee of an absconding debtor will not be protected by a previous judgement against him in that capacity, when said judgementis to be satisfied in specific property, and cannot be enforced till a future time, and the monies or credits in the trustee’s hands are due immediately.</p> <p>'Neither will a trustee be protected by having promised'to p'dy'the amount of his iri-debtedness to the creditors of the absconded debtor, if such promise be void by the statute of frauds.</p>

This was a scire facias brought on a recognisance entered into by Dodge, the defendant, before one of the assistant judges of the county court, conditioned for the prosecution of a writ of audita ■querela, in favor of one Mark Dodge against the plaintiff, and for the redelivery of the body of said Mark to the custody of the jailer, (if the same should be awarded,) in whose custody he was :at the time of entering into the recognisance, and also for the payment of intervening…

<p>A Circuit Court of the United States is not a foreign court, nor a court of inferior jurisdiction, ancf nil debet is nota good plea toa judgement renderedby such court.</p> <p>Where an attorney, without any license or authority, instituted a suit against A in favor of B, and judgement was rendered therein for the defendant to recover his costs, —it was held, in an action broughtbyA againstB on said judgement, that B was bound thereby, and could not plead the want of authority in the attorney.</p>

Action of trespass for taking and carrying away 800 pieces of pine boards and five hogs. Plea, not guilty, and notice that defendant would give in evidence a former recovery by him in a suit brought by the plaintiff for the same trespass.

<p>Parol evidence is admissible in ¿rower against a third person, to show that an execution was delivered to the officer who served the attachment, within thirty days from the rendition of the judgement.</p> <p>Such third person cannotbe permitted to question the regularity of the judgementof a justice of the peace, through want of continuances, or the giving of bonds as the law requires, while the execution is not set aside by regular process.</p> <p>When an officer attaches personal property, such as hay, and leaves copies with the town clerk as the statute provides, the attachment gives him sufficient tide and possession to maintain trover against one who has converted the same property.</p> <p>The defendant, in such case, is only liable for the property he has actually converted, oi; over which he had some control, when he forbade the officer’s selling i4t.</p>

The orator, in his bill of complaint, claimed an account of the defendant’s agency, undertaken, as the orator averred,for the joint benefit of the orator, the defendant, and one John Fay, now deceased, in relation to certain lands, to which they had a joint claim, but of which their title needed confirmation j and alleging that Tuttle was to take care of these lands, and procure vendue titles, or other titles, in confirmation of theirs, as by a stipulation in writing signed…

<p>This was an action of assumpsit brought by the sheriff upon a receipt for property, attached by George A. Alien, a deputy of the plaintiff. The execution was delivered to Amos W. Butler, another deputy of the plaintiff, who made demand of the property of the receiptors in the life of the execution, but after the expiration of the thirty days from the rendition of the judgement. The case came up from the county court, upon a long bill of exceptions, taken by the defendants, against whom a recovery was had. The only questions now agitated were, whether the loss of the execu tion was sufficiently proved, and whether the property was seasonably demanded. The facts sufficiently appear in the arguments and opinion.</p> <p>There are two questions in this case; First, Whether there was a taking of the property in execution, within the meaning of the statute, within the thirty days; Second, Whether there was sufficient evidence of the loss of the execution, to justify the court in dispensing with the production of it.</p> <p>I. A taking in execution was doubtless necessary, for the language of the statute, (Compiled Laws, p. 68,) is very strong : “ And, unless the plaintiff in said suit shall within the term of thirty days, &sc., take the property in execution, the same shall be discharged from said process, and be no further liable to answer said judgement than though the same had not been attached.” The testimony of Mr. Porter was probably sufficient to show the execution into the hands of A. W. Butler, within the thirty days; but there was no evidence of a demand upon either of the receipt-ors, or upon Allen, the attaching officer, within that time. In examining whether a demand was necessary, we are to consider, that the property attached went immediately back into the hands of the original debtor, (he being one of the receiptors,) and that, therefore, there is no liability on the part of the sheriff to him ; and if-the attachment has been dissolved for want of a demand, the sheriff cannot recover on the ground of such liability, as he might have done, had the property gone into the hands of a third person, who refused to deliver it on demand. — Knapp vs. Sprague, 9 Mass. Rep. 258. The necessity of a demand upon the receipt-ors to constitute a taking in execution, in this case, appears from the consideration, that the property went back into the hands of the original debtor; and that of notice to,or a demand upon, the attaching officer, or of a demand upon the receiptors by his authority, from the fact that the execution was not delivered to the same deputy, who attached the property,but to another deputy of the same sheriff.</p> <p>1. Taking in execution, in the ordinary use of the words, imports an actual seizure. But it is said there may be a constructive taking. In England, the chattels of the debtor are bound from the delivery of the execution; and it may well be doubted, whether the bare delivery of the execution here, has, under any circumstances, any greater effect on the property than in England. It certainly gives the officer no new right, no additional power over property, already in his possession by virtue of the attachment, except a power of sale. It does not create a constructive possession, unless there was an actual possession before. The right, which the sheriff has in England over the debtor’s goods after delivery of the execution, and before seizure, is a mere naked lien, not coupled with any idea of a constructive possession ; a power to seize the property wherever he can find it; but he cannot maintain trover or trespass for it unless he has first actually seized it. The English law, then, furnishes no analogies, whereon to found the notion of a constructive taking in execution ; aud the only cases where it has ever been holden in this state, or other states where the practice of attachment is known, that the delivery of the execution to the sheriff was a taking in execution, are cases, where the property had been attached, and remained in the actual custody of the sheriff, or his servant. It is not necessary for us, nor are we at all disposed, to combat the doctrine, as applicable to such cases ; because here the property did not remain in the actual, or constructive, possession of the sheriff; but wentback into the hands of the general owner. The right, which the sheriff acquires to chattels by attachment here,and by delivery of the execution in England, is a special property in the nature of a lien, and the general property remains in the debtor, who may lawfully Sell the goods,subject to the lien. — 2 Bac. Ab. 721,723; Hotchkiss vs. McViclcer, 12 Johns. Rep.403; Bliss vs. Ball, 9 Johns. Rep. 132 ; Payne vs. Drew, 4 East, 523; Johnson vs. Edson, 2 Ai/cens’ Rep. 299. But this lien, in the case of attachment, must be accompanied with possession, either personal or through a servant; and, whenever the possession is given up, the lien is gone. The special property, which the sheriff acquired by the attachment, is determined by the redelivery to the general owner; and a sale or subsequent attachment is good ; attachments having always been holden to be governed by the principles laid down as to sales in Edward vs. Barben, 2 T. R. 587 ; and it is the general rule, with respect to pledges and liens, of all sorts, that a voluntary delivery of the property to th.e generalowner defeats the lien. — Fletcher vs. Howard, 2 Ailcens> Rep. 115. There is, then, no pretence for saying, in the present case, that the property was constructively in the hands of the sheriff, and, of course, there is no room for the application of the principle of a constructive taking in execution.</p> <p>2. But if it be admitted, that a bare delivery of the execution to the same deputy who attached the property, would be good to bind it, yet, it by no- means follows, that a delivery to another deputy of the same sheriff would be so. The statute provides that the doings of the deputies shall be taken as the acts of the sheriff; that is, that the sherifl shall be liable for the acts an.d neglects of his deputies, in the same manner as for his own ; and though he may generally adopt the acts of his deputies, and bring actions on receipts, taken to themj yet, whenever he does so, he is but the trustee of the deputy, (unless he has been damnified byhisneg-lect in the same case,) and therefore, can have no greater than the deputy would have, were the suit in his name. If the attachment was dissolved, and the receipt defeated, so that Allen could not maintain an action upon it in his own name, it cannot be • r ' set up again, by bringing the suit in the name of Bhss. Could Allen then maintain the action ? He was not liable to the debtor, because the property had gone back into the debtor’s hands; and he could not maintain an action, unless it was on the ground of his liability to the creditor through the sheriff: for it has always been holden, that the sheriff’s right to recover upon receipts, or for a violation of his right to the property attached, is founded upon his liability over to either debtor or creditor. But is Allen liable to the creditor ? The case does not show, that the property had been demanded of him ; or that he had notice, that execution had been issued, and put into the hands of his brother deputy ; and he could not be bound to take notice of the delivery to A. W. Butler, because Butler was not his agent or servant. Without such notice, he not only was not bound to keep the property more than thirty days, but it would have been his duty, at the expiration of that time, to have redelivered it to the debtor, if he had retained it in his own hands. A formal surrender of the property to the debtor was impracticable, in the present case, because he had already redelivered it to him, taking his receipt for it; and, at the expiration of thirty days, the law did what the officer would have done, had he kept the property in his own hands, by discharging the attachment. In Scott vs. Crane, 1 Conn. Rep. 255, it was holden, that, under circumstances like those of this case, there must be a demand of the attaching officer, in order to make him liable, and the universal practice in Vermont is, for the officer, who holds the execution, to notify the attaching officer, and take of him the receipt, without which he can have no authority to make a demand.</p> <p>II. There was no evidence, from which the destruction or total loss of the execution could legally be presumed. The supposition of the witness, that he had returned it to the clerk was sufficiently negatived by the testimony of the clerk; and the witness could not know, that the execution was not among his own papers, without a search for that purpose. — 2 Stark. Ev. 350.</p> <p>A delivery of execution in thirty days to the same officer who attached, is charging in execution.— Enos vs. Brown, l Chip. Rep. 280. A deputy sheriff is a mere servant of the sheriff, and his acts are the acts of the sheriff.— Smith vs. Joiner and Wood, 1 Chip. Rep. 62. The statute is full to the same purport. Therefore, a demand on the receiptor ,n SIXty days is sufficient. Where an attachment was made by a deputy-sheriff, and property was demanded by a constable, holding the execution, it was held sufficient. — Davis vs. Miller, 1 Vt. Rep. 9.</p> <p>It is not necessary for the officer to show the execution or receipt, when he demands property, unless requested. Nor is it necessary for him to return the execution, as his return is not evidence of a demand.</p>

<p>A declaration on a jail bondisbad, if it shows that the judgement, upon which execution issued, was not correctly described in the bond.</p> <p>If defendants plead performance, and conclude with a verification, the plaintiff ought either to demur or reply over. Merely adding the similiter is not regular.</p> <p>It is erroneous for the county court to decide on a matter of fact, without an issue properly joined, showing an agreement of parties to have the issue tried by the court.</p>

<p>This was an action of ejectment for 49 acres of land in Colches-ter, in the county of Chittenden. The defendant interposed the following plea in bar, to wit :</p> <p>“ And now the defendant in court, by his attornies, defends the wrong and injury when, &cc., and says, that the plaintiffs from having and maintaining their said action thereof against him, at the time said action was commenced, ought tobe precluded, because he says, that the plaintiffs’ claim to the premises, described in their said declaration, is founded upon a mortgage deed, executed by the defendant to the plaintiffs, to secure the payment of a certain promissory note, given by the defendant to the plaintiffs, dated June 2d, 1828, and payable one day after date ; which is described in the conditions of said mortgage for the sum of $ 120,88. And afterwards to wit, on the first day of October, 1829, it was agreed between the plaintiffs and defendant, that, if the defendant should then pay to the plaintiffs upon said note, the sum of twenty-five dollars, they, the plaintiffs, would postpone the time for the payment of the remainder of said note one year from said first day of October, 1829. And the defendant avers, that' he did then and there pay to the plaintiffs said sum of twenty-five dollars, and the plaintiffs did thereupon, and in consideration of said payment, promise not to call on the defendant for the balance of said note, but would postpone the time of payment of the remainder, for said term of one year, and would not prosecute the defendant for the possession of said mortgaged premises previous to that time; and this he is ready to verify : wherefore the defendant prays judgement if the plaintiffs ought, prior to the first day of October, A. D. 1830, to have or maintain their aforesaid action, against him the defendant.”</p> <p>To this plea there was a general demurrer and joinder in demurrer»</p> <p>We have two objections to this plea :</p> <p>1. Because no sufficient consideration is stated for the promise to postpone the collection of the debt, even if the action were upon the note. This note being originally payable in money, and due long before the payment was made, and before the promise-js Said to have been made, the payment could not constitute a # 1 . good consideration for the promise to wait for the remainder* With respect to the consideration, there is no difference between a contract to extend the time of payment, or alter the manner of payment, and an agreement to discharge the remainder ol a debt upon payment of a part only. Both are equally contracts varying the original agreement in'important points, and alike prejudicial to the creditor ; and, upon principle, something new should intervene, by which the plaintiff gains some advantage, or the defendant suffers some loss or injury, as a reason or motive for postponing the payment of a just debt due in money long before.— Chit, on contracts, 286 — 7; Heathcote vs. CrooJc-shanks, 2 T. R. 24 ; Fitch vs. Sutton, 5 East, 230-1 ; Pin-neVs case, 5 Co.. 1Í7, (abridg. 182 -,) Adams vs. Tapling,4 .Mod. 88; Co. Lit. 212. The reason of these cases applies to •the case under consideration, where the defendant seeks to enforce a contract to extend the time of payment of a debt, payable immediately in cash, founded upon a consideration every part of which is prejudicial to the plaintiffs.</p> <p>It is evident this payment cannot be called injurious to the defendant, or extra beneficial to the plaintiffs. It ought to have been made shortly after the date of the note ; but the plaintiffs, glad to get any thing, received cattle and endorsed the full value of them on the note, instead of cash. I am at a loss to divine what extraordinary meritorious considerations can enter into the part payment of a just cash debt, when that payment is made in cattle, instead of cash, as the parties orignally contracted. If there is any thing between these parties, which entitles this attempt to defeat the plaintiff’s of their remedy to special favor, it is not disclosed in this plea. — Bates vs. Starr, 2 Ft. Rep. 536.</p> <p>2. As this action is founded upon a technical deed of lands, this plea is no bar to a recovery of the possession. Where a statute or peremptory rule of law has made an instrument the exclusive criterion of truth, a contemporaneous, or subsequent, parol agreement cannot be admitted to enlarge, alter, extend, or contradict the terms of such instrument. — 3 Stark. Ev. 997. The same principle applies, where private parties have, by mutual compact, constituted a written document the witness of their admissions and intentions. — lb. 998. If the contract is by deed, which imports a sealed instrument, no evidence, whether oral or written, which is not under seal, can be admitted to contradict or vary it. — lb. ¡1002; also, note s. and t., Leslie vs. I)e La Torre, cited in 12 East, 583. Where a ship was chartered by deed in wait for convoy at Portsmouth, it was holden, that evidence could not be admitted of a subsequent parol agreement to substitute Corrunna for Portsmouth. See the same principle illustrated in Mildmaye’s case, 1 Co. 176, (abridg. 12 ;) Bedel’s case, 7 Co. 39, {.abridg. 225 ;) Colman vs. Packard, 16 Mass. 39, where parol evidence to prove a contract, that the mortgagor should remain in possession, was excluded.</p> <p>We are willing to rest the cause here; but might add, if necessary, that this plea amounts merely to the general issue.</p> <p>1. The defendant contends, this matter in bar ought to be pleaded and not given in evidence ; because it is in the nature of a plea in abatement; and, in all pleas in abatement, the matter in abatement ought to be specially stated. It is in the discretion of the court to allow a special plea, amounting to the general issue, if it involve such matter as might be proper for the decision of a jury. — Stephens on pleading, p. 463; 4 Bac. ab. 60, (Pleas, G. 3;) 3 Mod. Rep. 166; Carr vs. Hinckliff, 4 Barn. & Ores. 547; (10 C. L. R; 408;) also, 5 Com. Big. 76. Though a man plead a thing which may be given in evidence, yet in some cases this shall not amount to the general issue. — 4 Bac. ab. 64, (Pleas, G. 3'}) Skin. 362, per Ed. Holt; (2 Saund. on plead. 272.) Where a special plea amounts to the general issue, it is a defect in form merely, and can be taken advantage of upon special demurrer only.-~-Archbold’s pleadings, p. 196/5 Com. Big. 76 ; lb. 77„-</p> <p>2. Defendant contends, that the agreement to extend the time of payment is, in a moral and legal point of view, binding. “ A promise in forbearance of a suit is good.” — 1 Com. Dig. 138; Chitty on contracts, 9. A subsequent parol agreement, not contradicting the terms of the original contract, but merely in continuance thereof, and in dispensation of the performance of its terms? is good.— Chit, on con. 27 ; (1 Maulé & Selwin, 21.) “ There may be cases of a secondary contract, executed on the part of the debtor binding. — Bates vs. Starr, 2 Pt. Rep. 539. Where the debt was ascertained, and a fund provided for its payment, it is a good plea. — Heaihcote vs. Crookshanks, 2 T. Rep. 27.</p>

<p>This was ejectment for the undivided half of lot no. 167, in Highgate. Plea, not guilty. On the trial in the county court, the plaintiff read in evidence a mortgage deed from the defendant, James Austin, to himself, conveying the undivided half of said lot, dated Nov. 26, 1828, and given to secure the payment of anote of that date for $100. The plaintiff, also, read in evidence the copy of a deed, duly certified, from the defendant, Austin, to the defendant, Blake, of the same undivided half of said lot,dated June, 1829, and describing said premises as subject to said mortgage to the plaintiff. And, it being admitted, that the defendants were in possession at the commencement of the suit, the plaintiff rested Ins case. The defendants gave in evidence the record of a foreclosure in favor of the plaintiff against the defendants,upon the mortgage aforesaid, showing adecree obtained by the plaintiff at the January term,1830, the time of redemption to expire in January, 1831,. The defendants then proved, that, within,the -time limited by said decree, to wit, on the 12th day of December, 1830, but.after the commencement of this action, they .paid the amount decreed, with the interest thereon, m full satisfaction of «the decree,. The defendants contended, that, on proof of these facts, the action was defeated,, and they were entitled to .a .verdict. But the couit decided, that the ejectment was not defeated by said .payment, but the plaintiff was entitled to proceed for his costs in the ejectment, until the same were paid, and, accordingly directed a verdict -for the plaintiff to recover nominal damages and .his cost. To which decision the defendants excepted, and the case was thereupon reserved for the opinion of this Court.</p>

This was a writ of scire facias, calling upon the defendant to show cause, if any he had, why the plaintiff should not have execution upon a judgement, which the plaintiff, several years before, had recovered against the defendant, and which the plaintiff, in his writ of scire facias, affirmed to be in full force, whereof execution remained to be done.

This was an action on hook account, in which the wife of the defendant was offered a witness for her husband, and excluded by the auditor. The county court affirmed this decision. On exceptions to that decision, the cause was brought up to this Court, and here argued. The facts will be fully understood from the arguments, and the opinion of tbé Court.

This was an action of ejectment. The writ was duly served on William Ballard, and a regular non est inventus was made as to the person and property of Arden Ti. Ballard. The action was entered on the docket of the county court, as against both defendants.

This was an action on the case, brought on the statute to prevent fraudulent and deceitful conveyances, (chap. 32, s. 7,).

This was an action of assumpsit on a promissory note, signed by the defendant and one Stockwell, which by the agreement of the parties was submitted to referees, and the same was made a rule 'of court. The referees reported generally, that the plaintiff having maintained his action against the defendant, ought to recover the 'sum of thirty four dollars, and twenty-five cents, and his costs. They also made a special report disclosing the following facts : 1.

This was an action of account, wherein the plaintiff sought to recover of the defendant a portion of the rents and profits of certain lands in St. Albans, from March, 1818, to October, 1827. The defendant pleaded, that he never was bailiff and receiver '; on which plea issue was joined to the country.

. This was an action of assumpsit. The declaration contained three counts.

<p>Where an officer was commanded in a writfo attach the goods and chattels of a deferí" dant to the vaftie of twenty dollars, and afterwards made his retarn on the writi that he had, by the directions of the plaintiff, attached all the hay, grain, oats and peas in the defendant’s barn, — it was held that he was estopped from saying there was no such property there, and that the command in the writ and return thereon were prima facie evidence that the property attached was worth twenty dollars.</p> <p>A creditor having caused certain personal property to be attached by virtue of a writ of attachment against his debtor, afterwards took out an execution on the judgement rendered in said suit, and in due season delivered it to the sheriff who made the attachment, with directions to levy it on the property attached, and the sheriff without the consent of the creditor, delivered the execution to a constable, who made a return thereon, that he had repaired to the dwelling house of the debtor, demanded the property, and couldnoiftnd any whereon to levy the execution, — it was held than the sheriff was liable.</p>

.This was an action of assumpsit, on an order for ten dollars, with a second count for work and labor. Plea, non assumpsit, and issue to the court.

This was an action oí ejectment, for lands in Sheldon, in the county of Franklin ; and the parties having agreed on three persons as referees, the county court by their rule referred the ae-t 3 J J tion to them to report thereon.

Ejectment for the second division lots -drawn to Ebenezer Morse, Stephen Pearl, Joseph Fay and Stephen-, in the .town of South-Hero. Plea, not guilty, and issue joined to the country. On the trial of this case, it appeared in evidence that one Ebenezer Stark, without any title, took possession of that part of the land in question, which-was,in .dispute, in the year, A. D. 1802 ; that in the year 1805, he mortgaged the same to one Oar-lisle D. Tylee for $100.

This was an action of trover.-, in tvVo counts. The first was fois-five oxen and one ox-yoke, describing them by their color &c., and alleging- them to be of the price of one hundred and twenty dollars. The second count was for-a note signed1 by the defendant, and made payable to one Eli Denio, in neat cattle,.at a place named, on the 15th day of October, 1829-.

This action draws in question the same lottery, Brought to view in the suit, Mills May & Co. vs. Chauncey Brownell, (see 3 Vi. Rep. 463.) That was a suit to recover the value of the tickets sold. This is to recover the amount of a note, given for the right of raising money by this lottery. The present plaintiff was the grantee ol the lottery. The grant was made in 1792,, and was to enable him to raise money to remunerate his loss of' a brewery by fire.

Tbis was an action of ejectment íor lands in Salisbury, in the county of Addison. It was tried by jury in the county court, and brought up to this Court upon exceptions to decisions of the court upon the trial. The plaintiff made a good prima facie title' to the premises by the levy of an execution upon the same, as the property of the Glass Factory Company. The papers showing this •levy appeared regular, and were read to the jury without objection.

This was an action on boolt account, and a motion in writing was filed in the county court to dismiss the suit on the ground that the court bad no jurisdiction. Evidence that the debit side of the plaintiff’s book exceeded one hundred dollars was offered, and rejected. And the question was, whether it was necessary, to sustain the jurisdiction of the court, that the sum demanded in the writ should exceed one hundred dollars.

This was an action of trover, which came up from the county court, on the following bill of exceptions : “ This action was brought by the plaintiff, as sheriff of the county of Windsor against defendants, for converting to their own use a quantity of bricks, which had been attached on a writ in favor of Job Richmond against James and Josiah Praii. The defendants pleaded the general issue.

<p>A defendant, in a suit upon a prison bond, is not, by the recital in such bond of the ^rendition of a judgement, and the issuing of execution, &c., estopped from pleading mil tiel recovd of such judgement.</p>

<p>The necessary intendment, in an officer’s return on an execution of an appraisal of land at its true mlue'in money, is the true value at the time of such appraisal.</p> <p>The officer making demand of payment at the house of the debtor, when he is absent from the state,is sufficient to authorize a levy of an execution on land.</p> <p>The attorney, whose name is certified on an execution, as attorney of the party, is such for the purpose’of piosecuting or defending’ the suit and receiving pay, but not for the purpose of appointing appraisers, unless he has a special appointment for that purpose.</p> <p>Tiie officer, in returning that the appraisers were appointed by a justice of the peace, must state that he was one, who by law might judge between the parties in civil causes, unless he adopts the generality of an ancient approved form.</p>

<p>Where one sues before a justice of the peace, in an action on book account, and sets, his ad damnum at ten dollars only, and yet exhibits an account against the defendant of 010,67, and recovers the ten dollars demanded, the action is appealable.</p> <p>The plaintiff cannot take away a jurisdiction, given in his writ, nor take away ¡the right of appeal, by exhibiting a less account, than his writ would authorize, nor by •setting his ad damnum lower, than the dehit side of his account.</p>

This action was tried at the county court, in Franklin county, at September term, 1830, Chief Justice Prentiss presiding.

This case came up from the county court on exceptions to the decision there made, and was submitted to this Court without ar-gumentandthe facts,, presented in the pleadings, sufficiently appear in the following opinion of the Court, pronounced by.

This was an action of assumpsit, in several counts. The first count was special, setting forth a promise of the defendant to pay to one William Rockwell, the plaintiff’s part, to wit, one equal half of two notes, made payable at times then future, and signed by the plaintiff and one Luther Park, when the same should become due and payable, and to indemnify and save harmles the plaintiff from any loss or damage for, or by reason of, the non-payment of the same.

This was a writ of audita querela, in which the complainant alleged, that said Blanchard brought an action of trespass against him, the said Hayes, for taking away a horse, which Hayes had taken upon a writ as the property of one Cephas Blanchard ; that said action was brought before a justice of the peace, and tried; and Blanchard recovered judgement against Mayes for the value of the horse.

This was an action on the case, brought against the defendant as sheriff of the county of Franklin, to recover damages for his suffering one Sbiveric Holmes, a former sheriff, to escape, when in prison on an extent for taxes, issued by said treasurer. The declaration set forth two taxes, assessed in two different years, alleging them to have been assessed by the legislature.

This action was brought up from the county court upon the following bill of exceptions : “ This was an action of assumpsit, brought by the town of Brookline, to recover of the defendant town the expense of erecting a certain bridge across West river, on the road from Newfane Court house to the former residence of one Ormsbee,in Brookline. The defendants pleaded the general issue, and the declaration and pleadings are referred to as'part of the case.

The petitioner presented his petition to the county court, at December term, 1831, pursuant to the provisions of the statute of 1831. The county court decided againsthim, and he excepted to their decision, and brought his case up to this Court under the provisions of said statute.

This was an aciion of assumpsit upon a promissory note. The defendant pleaded non assumpsit. .He, also, pleaded a plea in-offset of covenant broken, upon a covenant of seizin contained in a deed of conveyance of land. The covenant, as declared upon, was, that the “plaintiff, at the ensealing of said deed, was weW seized, of said land in fee simple, and that he had good right and lawful authoiity to sell the same in manner and form as above-written.

‘The said John L. Woods rendered his account of his admin-Ís'íration before the court of probate for the district of Bradford, and the same was allowed. Messrs. Skinner and Dewey, two of the creditors oí the estate, were dissatisfied with the allowance of several items of the atreount, and appealed from the decision of such allowance to this Court. The appeal was entered at the last term, and a commissioner was appointed to take the'accoun't, and report to this Court.

This case came up from the county court, for a hearing upon the following bill of exceptions, allowed by said county court: “ Assumpsit for work and labor. Plea, non assumpsit.

This was an action, brought before a justice of the peace, in which the defendant recovered judgement, without filing any plea in offset. The action was brought upon a note of about seventy-seven dollars, made payable to one John Beckwith or order, and by him indorsed to the plaintiff.

Johnson commenced his action against Sommers for slanderous words, and obtained a verdict and judgement against him, together with a certificate of the court that the cause of action accrued from the wilful and malicious act of Sommers. Execution was issued, and Sommers was committed to prison by virtue thereof, and was in prison on the tenth of November, 1830, and long af-terwards.

This .was a prosecution under the statute of this state, to obtain an order for the support of a bastard child.

The facte in this case appear in the following bill of exceptions, allowed by the judges of the county court, to wit: “ This was an appeal from an order of removal of one Giles Merritt, from the town of Marshfield to the town of Montpelier. Plea, that the pauper was unduly removed, because his last legal settlement was not in the town of Montpelier. On which plea issue was joined to the court.

This was an action of assumpsit for four oxen and various articles of other personal property, which the plaintiff alleged he delivered to the defendants at their request, and which they promised to return, Sic.; and set forth his title to the property to be his, haring attached it in the year 1824, as the property of Oliver Ing-ham, one of these defendants} and alleged the defendants’ promise to be, to deliver said oxen, &c., to said Cooper, or to any other officer, legally…

This was an action of ejectment for lot no. four, in the eleventh range of lots in Concord, being the second division, laid to the right of-Gideon Tiffany, an original proprietor. The plaintiff produced a warranty deed of the premises, executed to his intestate by Azarias Williams.

This was an action of ejectment, which came up from the county court upon the following bill of exceptions, to wit : “ The was ejectment for the south east quarter of lot no. 138, in Coventry,… Held: under the town ; the occupants having continued to pay rents for the same as a public lot, belonging to one of the public rights in said town. It did not distinctly appear, whether the part sued for bad been leased or not ; but rents were paid upon it.

This was an action of account render, and came on to be heard on the report of auditors and exceptions following : “The plaintiff produced evidence to show that in the month of June or July, 1828, he was tenant in common with the defendant in a raft of square timber alleged to amount to 19617 cubic feet, which timber was transported by the plaintiff and defendant to Whitehall, in the state of New-York, and was entrusted by them to the care of one Melancton Wheeler, of said…

These two actions depended on the same principles, and were argued and submitted together on the following bill of exceptions : “ This was an action on the case for verbal slander. Plea, the general issue, and trial by jury.

Ejectment for land in Manchester. The plaintiff derived title under the will of Job Glddings, his father, who died legally seized and possessed of the premises in question, as part of his home farm, in June, A. D. 1816.

This was an action on the case endorsee against endorser of a note payable in grain in January, 1830, executed by Peleg Eddy to Abraham Potter, and by Potter endorsed to plaintiff.

This was an action of ejectment to recover the possession of lands in Tinmoutb, and was brought up to this Court on the following bill of exceptions i “ Upon the trial of the cause before the county court, A. T. 1830, the plaintiff claimed title to the premises in question by virtue of an attachement, judgement, and levy of an execution, in bis favor against one John Collins, jun. Said execution, dated 20th November, 1827, and levied by I. Dike, jr. Esq., sheriff, on the 4th…

This action came up from the county court upon the following bill of exceptions, to wit: “ This was an action of trover for spruce mill logs, cedar logs and rails, and cooper-stuff. PJea, the generalissue, and trial by jury.

This was an action of debt on a jail bond/Hn common form, counting upon a judgement in favor of the plaintiffs against the defendant, rendered by Chittenden county court, at their March term, 1826, for ‡ 136 damages, and $26,24 costs; and setting forth the issuing of execution on the same on the 12th of April, 1826, the commitment of the defendant to jail, the execution of the bond on the 9th of June, 1826, and a subsequent escape.

This was an action- on a promissory note, executed by the defendant, and made payable to Ellick Powell, since deceased, and Mary D. Powell, his wife, and endorsed or transferred to the plaintiff by the said Mary, since the death of her husband. Plea, non assumpsit, and issue joined thereon to the court by the agreement of the parties.

This was an action of debt on a bond with the following condition, viz: “The condition of the above obligation is such, that if the said Joseph, Anson and Charles D. or either of them, shall well and truly pay, satisfy and discharge, a certain mortgage deed by the said William executed to Jireh Durkee, on the 27th day of December, A. D. 1824, conditioned for the payment of sundry promissory notes, executed by the said William to the said Jireh Dur-kee, among which the…

This was-an. action, of debt in common- form, counting upon a judgement of Chittenden county court, rendered at their March, term, 1826, for the sum of $181,58.

This was trespass on the case for a malicious prosecution. By the report of the trial, which was had before the Supreme Court, at their June term for this county, in A. D. 1825, the case, so far as there is occasion to state it, appeared to be in substance as follows : — In A. D. 1816, the defendant, James Smith, jr., taught a school in the neighborhood of the plaintiff’s father., at which the plaintiff attended as a scholar.

This was an action on book account, and came before this Court, on the report of an auditor which had been made to the county court.

This was scire facias in favor of the treasurer of the state Against the defendants as bail of JVathan Fuller, late sheriffof the ‘county uf Caledonia.

This was an action of ejectment for certain lands in Braintree. Plea, the general issue. At the trial in the county court it appeared in evidence, that on the 18th day of May, 1830, the premises in question were owned by one William Ford, who on the same 'day, voluntarily conveyed them to his daughter, Clara Brackett, one of the plaintiffs.

This was an action of account against the defendant as bailiff and receiver of certain notes signed by Andy L. Smith, and another person, as bis bail; and of certain monies received by the defendant upon said notes. Plea, that the defendant was not bailiff and receiver to the plaintiff.

This was an action of ejectment for certain land in Lyndon. Plea, the general issue. The plaintiff claimed title to the premises demanded by virtue of a levy of an execution in his favor against one Micajah M. Lowell, which was admitted to be regular, and sufficient to entitle the plaintiff to recover, unless he was defeated by a deed, executed some time previous to the levy, by the said Micajah M. Lowell to the defendant, Gideon Lowell.

This was an action of covenant, which came up from the eourlty court on the following case agreed lob}' the parties : “ In this cause, it is agreed by the parties, that, on the 16th day of April, 1824, James Lillie, the defendant, was the owner in fee simple of the land in question, and was in possession of said premises; and, on the said (Gth clay of April, IS24, con* Veyed said premises to Thomas Waterman, of Johnson, by deed of quitclaim, or warrauly and seizin ; that, on…

This was a writ of review, brought in pursuance of the stature1, c7t. 7,55, to review an action of ejectment which had been brought by McDaniel against Skinner, and John and William Hurd,and others. The officer who served the writ returned that he had served it on three of the defendants, who resided in the county of Orleans, but made no mention of Skinner and the two HurdSf who- resided in Massachusetts, nor of Hadley, another defendant, who resided in the state of New-York.

This was an action of ejectment for one fourth of an acre of land being a part of lot no. 13 in the town of Hydepark, and drawn to the original right of Roger Enos jr. being the first division of lots in said town. Plea not guilty.

This was an action of trespass for taking and conveying away certain articles of personal property, described in the declaration. Plea, not guilty.

Action of debt on judgement. The declaration was as follows : “ Now the plaintiff here in court comes and declares against the defendant in a plea of debt, for that the said Adams and one Peter Sawyer, late of South-Hero, in the county of Grand-Isle, since deceased, as administrator of all and singular the goods, chattels, estate, debts, dues, and credits, of John Stark, late of South-Hero, aforesaid, by the consideration of Alpheus Hall, one of the justices of the peace,…

This was an action on book debt brought before Franklin county Court. Judgement having been rendered upon nil ditit, that defendant account, the case came before the auditor for hearing, who, having audited and adjusted the account, made the following report, viz. “ Your auditor further reports the following facts, in relation to the plaintiff *s account hereto annexed.

Assumpsit on two promisory notes dated April 2d, 1827, one of them for $100,. payable on or before the 1st day of April, 1828, in neat cattle, or in'gram the winter previous, with interest; the other for $60, payable by the 1st day of April, 1828, with interest. Plea, non assumpsit.

This was an action of assumpsit on a promissory note dated June 4, 1816, payable “when demanded.” Plea, that the cause of action did not accrue within six years before the commencement of the suit.

This was an action of trespass for taking and carrying away cer-lain pot-ash kettles and a hogshead. Plea, not guilty. The plaintiff claimed title to the potash kettles by virtue of a sale from one Alvin House. The defendant justified the taking by virtue of a writ of attachment in favor of Southwick, Cannon and Warren, against said House.

This was an action of assumpsit on a promissory note, for two dollars and seventy-five cents. It was commenced before a justice of the peace, and on the trial by the justice, the defendant pleaded in offset twenty dollars, for goods sold and delivered to the plaintiff, and also a judgement recovered by defendant against the plaintiff, for two dollars and ninety-six cents.

This was an action of covenant, and the declaration contained two counts.

This was an action for an escape against the sheriff of Chittenden county for permitting one LeGrange to escape from prison.

This was an aelion of ejectment, in which the plaintiff claimed title to the premises demanded by virtue of the levy of an execution in favor of lite plaintiff against Joseph Phelps, jr., issued on a judgement rendered in Grand Isle county court, April term, A. D. 1828, for the sum of fifteen hundred dollars damages, and costs taxed at twenty nine dollars and fifty-five cents. It appeared that the judgement was rendered on default, the defendant being gone to parts unknown.

The bill alleged, that on the 19th day of November, 1806, and for some time before, the orator, B. Boardman and A. Welch, (both of whom were dead,) owned three lots in Westford, no. 40 in 1st division, containing 50 acres, no. 49 in 3d division, containing 100 acres, no. 20 in 4th division, containing 75 acres, ail belonging to the right of David Dickson ; that at a vendue known as Hazeltine’s vendue, on the 25th Nov., 1805, for the non payment of a tax of two cents per acre…

This was ejectment for a bouse and lot, in the village of Hinesburgh. Plea, not guilty, and trial by jury. To support the issue on his part, the plaintiff oflered in evidence a letter of administration issued from the office of the probate court in the district of Addison. The defendants objected to the admission of the same, because it was signed by the register only, and not by the judge of probate; and also because it did not appear to have been recorded.

This was an action of assumpsit, to recover the value of certain personal property which had been attached by the plaintiff, by virtue of a writ of attachment in favor of one SafFord Stevens against Thaddeus Tuttle, and, as was alleged, delivered to the defendant upon his receipt in writing for safe keeping. Plea, non assump-sit, and issue to the court.

This action was brought against the defendant to recover the amount of a promissory note which had been sold and transferred by him to the plaintifis. The note was as follows : “Burlington, July 18,, 1827. “ For value received I promise to pay to William McGary, or “ order, the sum oi fifty dollars, on the first day of April next, “ with interest.

Action on tbe case against the defendant as sheriff of the county of Chittenden, founded on a receipt executed by his deputy for an,execution in favor of the plaintiff against Joseph Sinclear, which the deputy had received to serve, levy and return. The first count was for not paying over the money collected on said execution on demand made. The second count was for not returning the execution.

This was a petition under the act of October 20, 1797, relating to the “ partition of real estate in certain cases.” The petitioner stated in his petition that he was seized in fee of an undivided fourth part of certain real estate, consisting of a small piece of land and a grist-mill standing thereon, in common with the petitionees ; and that said estate could not be -divided without great inconvenience to the parties ; and praying that the Court would order the interest of…

This was ejectment for 17 acres of land in Salisbury. Plea, not guilty.* The plaintiff claimed title by a deed from Jacob Bartholomew to himself, dated August 7, 1820, conveying a house and lot in Salisbury village, and another tract of 41 acres, which included the 17 acres demanded. The defendants claimed title under the levy of two executions upon the said 41 acres, in favor of the defendant, Seymour, against Bartholomew,made June 23,1823.

This was a special action on the case, setting forth the sale by the defendant to the plaintiff, of a note executed by one Calvin Bruce to one Silas Bruce, and transferred by said Silas to the defendant, and by him to the plaintiff ; and alleging a fraudulent and deceitful representation on the part of the defendant, that said Calvin, the maker, had no account or claim in offset to defeat a recovery thereon ; and seeking to recover, as special damages, the costs of a suit,…

This was an action on promissory note executed by the defendant jointly and severally with one Virgil Long, and made payable to James Green, or order, and by said Green endorsed to the plaintiff. Plea, general issue.

This was an action on the case brought by the plaintiff against the defendant for refusing to receive a printed vote, on which there was a judgement for the plaintiff by consent in the county court; and it was agreed that the case should pass to the Supreme Court, for, final judgement on the following case stated :— “ The plaintiff, a freeman and legal voter in the town of Rut-land, and slate of Vermont, at a Freeman’s meeting duly warned and holden at Rutland, on the first…

This was a writ of error, brought to reverse a judgement rendered by the county court in favor of the present defendant, '■Stevens, against the present plaintiff, Bates. It appeared by the •record that the suit in which the judgement complained of was ■rendered was an action of ejectment on mortgage, commenced on the 16th day of April; 1829, and was entered at April term.

This was an aelion of trover for two boxes of pine boards. Plea, the general issue.

This was an-action oí assumpsit, brought to recover a sum found due against the defendants by the commissioners appointed'to-receive, examine and adjust, the claims against the estate of William Eames, and the claims exhibited in offset thereto.

This was an action of trespass for taking out of the plaintiff’s possession a certain cow, which was alleged to be his property. Plea, the general issue, and notice that defendant would give in evidence that the cow, at the time of the taking, was the property of John Bolton, and that the defendant as the servant of said John, and by his directions, took and drove away the cow, as he lawfully might.

This was an appeal taken by the overseers of Concord from an Order of removal oí Abigail Emerson, Sally Emerson, Eludiera Emerson, and Darius Emerson, town paupers, made by two justices of the peace in and for said county of Caledonia.

This was an action on note, dated August 20, 1823, for ‡34 payable in cows in four years from date, signed by defendant and Ira Allen. Plea, general issue.

This was an appeal from an order of two justices of the ty of Washington for the removal of Thomas Brigham, Sally Brigham, his wife, and Lucy L. Brigham, their daughter, from Barre to Morristown. Held: that notice from •-one town to another, to obtain'the removal of a pauper, or the reimbursement of the expenses of a pauper’s support, must be in writing, and the town is not concluded if parol notice is given to its agent, and he makes no objection on this account.

This was an action of assumpsit on a promissory note for $4000, payable to the Bank oj Montpelier, in ninety days from date, with the names of Gideon O'. Dixon, Luther Dixon, Geo. Held: that the defendant is discharged ? He did not become surety on the faith of this attachment, nor request it to be made ; and the whole case shows that the plaintiffs acted in perfect good faith, and in a manner they believed for their interest, and that of the sureties.

This was an action of trespass for seizing and carrying away certain sheep, the property of the plaintiff.

This was an action of assumpsit upon a promise of the defendants to redeliver to the plaintiff certain goods and chattels on demand. A yerdict was returned in favor of the defendants, subject to the opinion of this Court on the following case.

Action of trespass for seizing and carrying away the plaintiffs cow. It appeared that the cow in question, was the only one the plaintiff had, and that the defendant had taken her in the capacity of an officer, by virtue of a writ of attachment at the suit of a creditor.

<p>Assumpsit on a promissory note, dated May 2d. A. D. 1828, for $49,90 and interest. Plea, the general issue, with notice of payment in a waggon and sundry other articles, herein after mentioned. The plaintiff having proved, and read in evidence, the note declared on^the defendant called John H. Kimball, Esq. attorney of the plaintiff, as a witness to prove, that the plaintiff held a bill of sale of a quantity of sap buckets, one or more cauldron kettles, and a sap holder, executed by the defendant to him on the 3d day of May, A. D. 1828 ; which property the plaintiff was to dispose of, and apply the proceeds on the note in question. The witness objected, that if he bad seen or knew of such a paper, bis information on the subject was communicated by the plaintiff to the witness as counsel in this cause,and in professional confidence. But the court decided that he was not privileged from disclosing the fact, if within his knowledge, that such a paper existed, and what had become of it, though he was not at liberty to disclose to the prejudice of his client, any declarations of his, made to the witness as counsel. He then testified, that the plaintifl lodged such a paper with him when he left the note to be sued, and that he had the paper in court. The defendant called for the production of it, to be used as eyidence on the trial; to which the counsel for the plaintifl objected ; but the court ordered it produced, and it was read in evidence, and was as follows:</p> <p>“ Barton, May 3d, 1828.</p> <p>This day sold and delivered to Charles Durkee, 250 sap buckets, one cauldron kettle, and one sap holder ; said articles are now in the sugar lot belonging to Albert Leland. Said Durkee shall have a right to take possession of said property when he shall see proper, and account to me for the same at what said articles will bring at auction. Leander Leland.”</p> <p>It was admitted that a waggon, worth about $25,00, had been received as part payment of the note, and that the plaintiff had sold the cauldron kettle, mentioned in the bill of sale, for $4,00, which was also to be applied. Evidence was given tending to show, that the note in question was given on a settlement between the plaintiff and defendant, and constituted the only demand which the plaintiff afterwards held against the defendant, and that the object of the bill of sale was, to provide means for the payment and satisfaction of said note. The evidence also tended to show, that at the time of giving said bill of sale, the property specified was in the different places therein mentioned; — that the plaintiff af-terwards made some attempts to sell the same at private sale ; and that an agent of his let out fifty of the buckets for use one season ; but it did not appear that the plaintiff had in fact sold any of the buckets or the sap holder, but the same still remained scattered in the neighbouring sugar places, and had been suffered to go to waste and decay. The plaintiff contended, and requested the court to charge, that he was under no obligation to take possession or make any disposition of the property mentioned in the bill of sale, and had at all times a right to sue the note and collect any balance not paid by the actual proceeds of said property. The court instructed the jury, that the bill of sale, taken in connexion with the evidence of the purpose for which it was executed, was to be construed as a pledge, or rather a mortgage, of the property to the plaintiff to secure the payment of the note in question, with a power to sell, the better to carry the object into effect ; — that it did not operate at once as payment or part payment of the note, but passed the legal interest in the property to the plaintiff, whose duty it was to execute the object of the transfer, or else to re • nounce the benefit of it, and give notice thereof to the defendant; —that the provision for selling at auction was introduced for the benefit of the plaintiff, who might waive it, and make any other disposition of the property, if equally beneficial to the defendant;— that the plaintiff would, therefore, be bound to account, by way of payment on the note, for any of the property which he should sell, appropriate to his own use, destroy, or suffer to become useless and of no value, for want of reasonable and proper care on his part; and that, if they found from the evidence that property mentioned in the bill of sale, sufficient at a fair cash value, to pay the balance of the note, after_deducting the wagon and cauldron kettle, had thus become useless and of no value, through the want of such care on the part of the plaintiff) they would find the note paid, and returna verdict for the defendant; and if to an amount less than the balance of the note, then the plaintiffwould be entitled to their verdict for the difference. Verdict and judgement for the defendant.</p> <p>The plaintiff filed exceptions to the opinion and charge of the court; whereupon the case was brought up to this Court, where, after argument by Kimball for the plaintiff, and Cushman for the defendant,</p>

<p>This was an action of ejectment for land in St. Albans. Plea, not guilty^and issue to the court. It was admitted on trial,that the title to ¡the land demanded was in the plaintiff,and that he had a right to recover, unless he had'been divested of his title by virtue ofthe levyof an execution in favor of Robert Peaslee, administrator of Zacheus Peaslee, against Silas Hathaway, Erastus Hathaway, Levi Hathaway, James Brown, and the plaintiff, under which the defendant •claimed the right of possession. The defendant produced in-evidence the record of the judgement on which the execution issued, from which it appeared, that the original action was on a jail bond ; and that the defendants pleaded a plea of set off thereto ; —that Peaslee, the plaintiff, replied, arid pleaded the general issue to the plea of offset; and gave notice, under the statute, that he should prove that said Zacheus Peaslee did not at any time within six years before the commencement of said action, nor within ■six years before filing said plea, nor within six years before the said Zacheus’ death, undertake and promise, as alleged in said plea of offset; to which 'replication the defendants demurred that the court thereupon decided that the defendants 'rejoinder be held for nought, and directed that they should close the issue instanter, which plaintiff had tendered in his replication, and in default thereof, that judgement be rendered against them for the amount claimed by the plaintiff ; and that thedefendan'ts neglecting to comply with the order of the court,judgement was rendered accordingly. The present defendant objected to the admis•'sion of this record, because it appeared that judgement had been rendered by way of amercement or penalty ; and contended, that the court had no power to rc-nder a judgement under áírch circumstances. But the objection was overruled. The officer’s return on the execution tvas as follows :</p> <p>State of Vermont, I Know all men by these present's, that I, Franklin, ss. > Joseph Weeks, sheriff’s deputy of the' ■November 9th, 1818.) county of Franklin, by virtue of the within execution to mo directed, and by direction of Sanford Gad-•comb, attorney for the creditors within named, did, at St. Albans. in said county, the 9th-day of November, A. D. 1818, leyy thc said writ of execution on a certain tract or parcel of land, shown to me by the said Sanford Gadcomb, attorney, as aforesaid, as the property of one ALbner Eastman, one of the within named debtors, situate, lying and being,, in St. Albans aforesaid, and bounded as follows ; to wit: beginning at the south-east corner of lot no. 17 ; thence running west, on the south line of lot no. 17, one hundred and twenty four rods and thirteen links, to the stage road ; thence running northerly,on the east line of the stage road,thirty four rods ; thence running easterly, a parallel line with the south line of said lot, one hundred and twenty one rods ; thence south, thirty six degrees west, thitiy four rods, to the first mentioned bound ; containing twenty six acres and twelve rods of land. And after-wards, to wit,, at St. Albans aforesaid, on the day and year last aforesaid, I caused the same land, with the appurtenances thereof, to be appraised by Abijah Stone, Orange Ferris, and Nehemiah W. Kingman, good and judicious disintered freeholders of the vicinity, being in the town of St. Albans, aforesaid, who were mutually appointed by the said Sanford Gadcomb, attorney, as aforesaid, and the said Abner Eastman", and I have sworn them respectively as the law directs, who, on their oaths, have appraised the same at the sum of seven hundred and twenty nine dollars and five cents; and I have caused the within execution, with this my return hereon endorsed, and the hill of fees hereunto annexed, to be recorded in the town clerk’s office in St. Albans.</p> <p> Joseph Weeks, deputy shenff. </p> <p>Several objections were taken to this return :</p> <p>1st. That it did not appear therefrom that the officer repaired to the debtors’ place of abode, and demanded payment of said execution ; nor that said debtors, their agents or attornies, had refused to expose and tender personal estate, sufficient to satisfy the execution.</p> <p>2d. That it did not appear the statute had been-complied with in the appointment of the appraisers ; that the parties could not agree on all three of them ; but each party should' appoint one,, and those two mutually agree on a third.</p> <p>3d. That it did not appear the appraisers were “judicious and disinterested” freeholders ; — that the word disintered, used in the return, could not mean, “ disinterested.”</p> <p>4th. That it did not appear the land was shown to the appraisers, nor that they saw it, nor in what manner they ascertained its value.</p> <p>5th. That it did not appear in what manner the appraisers were sworn ; — that the form of the oath required by law should have been inserted in the return.</p> <p>6th. That it did not appear the execution had been extended by an officer known in law.</p> <p>'7th. That the return ought to have been authenticated by a Beal.</p> <p>■ 8th. That the officer had charged more Tees than by law he was entitled to.</p> <p>9th. That it did not appear the value of the land had been applied on the execution.</p> <p>10th. That it did not appear whether the land had been setofi to the administrator, or to the heirs.</p> <p>11th. That a certificate of the appraisal, signed by the appraisers,ought to accompany the return, and that it should appear they appraised the premises at the true and just value in money.</p> <p>These objections were all overruled by the court, and the record of the levy admitted. The plaintiff then offered evidence to show, that Eastman, at the time said execution was extended on the premises, was sick, and had no voice in the appointment of the .appraisers. This evidence was rejected by the court. A judgement having been rendered for the defendant, exceptions were taken by the plaintiff; whereupon the cause was ordered to pass to the Supreme Court for a final hearing on the several questions of law raised in the case.</p>

<p>This was an action of trover for sixty tons of free-stone,alleged to have been taken and carried away by the defendant,and converted to his own use. It appeared that on the 9th day of August, 1814, the plaintiff conveyed to one Minard sixty acres of the south part of lot no. 5, in the town of Grafton, and the deed contained the following reservation ; viz : “ with the reservation of all “ the free-stones on said land to myself, my heirs, or assigns, with “ a privilege of carrying off said stones in the most convenient « place to the highway.” The defendant claimed a right to the stones in question by virtue of a subsequent deed to him from said Minard, conveying, without any reservation, the land above mentioned, and from which the stones were taken. The plaintiff claimed the right to maintain the action by virtue of the said reservation contained in his deed to Minard. At the trial in the county court the plaintiff introduced evidence showing, that the defendant had taken and converted to his own use about sixty tons of the stone ledge, on said land, of the kind which in that vicinity is calledjfree-stone, taking the same from the ledge front six to twelve feet under the surface of the ground ; and that tne ledge extended southward, and was above the surface and visible from two to four rods south of the place where the defendant dug the stone in question, and a little ofl of lot no. 5. The defendant produced a deed from the plaintiff to said Minard, dated August 30, 1814, conveying to him two acres of land adjoining the said sixty acres, on the south side, being the same land on which said ledge was above the surface of the earth, as before mentioned : also a deed from Minard to the defendant conveying the said two acres,, •dated March 20,1823. The plaintiff objected to the admission of these deeds as evidence ; but the court overruled the objection. The defendant then introduced testimony — that was objected to by the plaintiff,but was admitted by the court — which tended to show, that when the plaintiff conveyed the said sixty acres to Minard, there were from thirty to one hundred tons of free-stones lying upon the land, disconnected from any fixed ledge, which were of different sizes, from very small to two or three tons in weight;— that these were somewhat imbedded in the earth, the upper'parts being above ground, and the most elevated points weatherbeaten and of no value ; but lower down they were solid, and were useful for fire-places, jambs, manteltrees and inkstands — That at that time no ledges were worked or opened in the vicinity of the ledge in question j and that it was not then known, that said ledge extended under the surface as far north as the place where the defendant severed the stones in question.</p> <p>The plaintiff requested the court to instruct the jury, that said reservation included all the free-stone and free-stones upon the said sixty acres, as well the fixed ledges as the loose stones. But the court charged the jury, that if they believed the testimony above mentioned, with regard to the situation and quantity of stones upon the surface, and the situation of the ledge, as then unknown to the parties, they would consider the reservation satisfied without extending to said ledge. The plaintiff excepted to the decision and charge of the court ; whereupon the cause was ordered to pass to this Court.</p> <p>1st. That his deed to Minard extended to all free stone on or under the surface of the land. — Leonard vs. Judd, Bray. Rep. That the stone is a part of the soil — and on is super — not the surface, but the bottom.</p> <p>2d. That the deeds offered by defendant were not admissible to affect the construction of the exception in plaintiff’s deed. The deeds of Minard to defendant are inter alios. The deed, plaintiff to Minard, confirms plaintiff’s construction of said exception* He then owned both lots, and sells the stone on the one — having as he supposed reserved the stone on the other lot. All the deeds to defendant are of a long subsequent date.</p> <p>3d. The evidence of there being other stones, was inadmissible. It is inadmissible to vary the construction of the deed. It had no tendency to show the actual intention of the parties.</p> <p>4th. The same may be remarked., in relation to the testimony, that no ledges had been opened in the vicinity.</p> <p>5th. And the same that the extent of the ledge was not known. It was equally unknown to both parties, and it might well be said it could not have passed had there been no exception. But though the fact was not then known, that is, ascertained, yet ■it was from the nature of the case a probable fact. It is objected 'that there is no reservation of digging the soil. When a thing is granted,all the means to obtain it are granted also. — Shep. Touchstone, 85. The defendant’s construction would exclude all the stone embedded in the soil. The verdict was found on all the facts : if any were improperly admitted, the plaintiff is entitled to a new trial.</p> <p>contended, That the exception did not entitle the plaintiff to any rocks or ledges, or to any stones wholly buried in the land ; but only to such stones as were on oi upon the land.</p> <p>I. Because such is the fair and grammatical construction of the words-. They are called free stones, and not freestone, which is the usual and proper mode of expression, when speaking of the kind and not the individuals. Thus, we say all the freestone, if we mean all of the kind ; but, speaking of particular individual ones, we say the “free stones, those free stones besides, the words are not even compounded into one; as is always the case when speaking of the kind, as all the freestone ; but, as if meant to preclude such a meaning, it is not only put in the. plural, but is decompounded, and the two words used, free stones. As if still more to prevent dispute, when they are subsequently spoken of in the deed, they are called “stones” simply, viz. “carrying off said stones;” from which it is evident that the parties were speaking of something which in the state it then was, might be carried off; but whoever heard a ledge called a stone, or of carrying off an entire ledge, calling it a stone ? In this view the difference between ihe description here, and that in the lease in Brayton’s Reports, is quite manifest; for there it was rocks and stones; and a ledge may be a rock, or composed of rocks. They are not only said to be stones, but stones on the land, which, in fair grammatical construction, can only apply to such things as are in some part superior to, or forming the surface 5 the preposition on not being used in common acceptation in reference to any thing which wholly encloses it. It is apprehended that the only difficulty of construction, in regard to this word, arises from the difficulty of drawing the limit where the thing spoken of is partially enclosed ; but that when the thing is wholly enclosed, or wholly superior, the difficulty vanishes. The language used in the sense, for which the plaintiff contends, is not conformable to legal language, orto the words used in conveyancing. In all cases in the books where mines, quarries, coal, stone,&c., in the bowels of the earth, and on the surface, are both conveyed, or excepted, the words “in and on the land or premises” are used. See Cruise, Wood, Bridge-man, passim. And if there is any departure from this usual language, it has been made by the plaintiff himself. The intention is still more apparent from the circumstance, that while the plaintiff has been careful enough to reserve the right of way to carry off the stones on the land, he has reserved no right of digging or subverting the soil for the purpose of obtaining stone under the soil. If it be said, this right is incident to the exception, so is the right of way, and the plaintiff having omitted the one, while he expressly mentioned the other, shows that the former was not intended. If it be said, that this construction would deprive the plaintiff of the power of raising the stones,which are confessedly reserved, by preventing him from inserting underneath them the proper levers, &e., the answer is, that there is a wide difference between using the means necessary to carry off'stones lying upon the land, although somewhat bedded, (as the case finds these to be,) and digging to discover, and raise from the bowels ol the earth, any quantity which may be situated between the surface and the centre. Besides, would not such an exception, as is contended for, be void, as enabling the plaintiff to wholly subvert the defendant’s soil,and deprive him of the profits of his land ? Shep. Touch. 79; Moore, 870; Co. Lilt. 150. Nay, more, he would be entitled to all the stones of that quality, whether great or small, and in a soil so filled with them it would be a complete defeat of the grant. Furthermore, the construction contended for by the plaintiff, is the most favorable which could possibly be made for the grantor, and the most unfavorable for the grantee; which is directly contrary to the rules of law.</p> <p>II. For it is a primary rule of law,that a deed shall be taken most strongly against the grantor, and that if it can be construed different ways, it shall be taken most favorably for the grantee. Plotvden, 1G1, Throckmorton vs. Tracy; Sheppard’s Touchstone, 87; Co. Litt. 183; 1 H. Blackstone, 27, Davis vs. Williams', 4 Mass. 205, Worthington vs. Hilyer; 16 John. 172, Jackson vs. Blodget. And the same rule applies to an exception or reservation, viz. that it shall be taken most strictly against the exceptor or reservor. — Dyer, 37.7 a, Pasmer vs, Prowse; Plow. 171; Hill vs. Orange, Moore 113, pi. 254; lb. 870, pi. 1208; 10 Co. 106-8, ELumph. Lofield’s case; 1 Brownlow, 61, Young vs. Milton; lb. 108, Smith vs. JYewsom ; Yelverton, 159, same case; 8hep. Touch. 100; Batch. 44, Seely vs. Aole ; Hardres. 89, Caiher vs. Merrick ; 2 Mad. R. 93, Ingram Vs. Tothill; 3 Mad. 230, Osborn vs. Stewart ; 2 Saund. 165, U®**** vs. Carue; 4 Taun'tonSlO, Windham vs. Way; 3 Johnson, 382, Jackson vs. Hudson ; 8 Johnson, 406, Jackson vs. Gardner. Nor does the case in Brayton, 230, Leonard vs. Judd, militate against defendant,being perfectly conformable to the doctrine laid down ; for there it was construed most strongly against the lessor, and the lessee permitted to dig for the purpose mentioned to any extent. Besides, it was a lease of rocks as well as stones, and from the nature of the country, probably all these was for the grant to operate upon. If it be asked how the court can know the nature of the country ? it is answered quite as well as the court of C. P. could know that Dev-onshire was an apple country, in 4 Taunton 316, Windham vs. Way, which brings us to consider</p> <p>III. The admission of parol testimony. Defendant contends,that it was properly admissible to show the situation of the premises, and extent of the grants, and to rebut plaintiff’s parol testimony of the usage of the words. — 4 Taunton ut sup. supposes such inquiry. In 1 H. Bl. 27, Davis vs. Williams, iris said by Lord Loborovgh, that a devise of all the lands will not carry leasehold lands il there are freehold to which the words will apply ; and this can only be known by parol testimony.— 1 Taunton, 500, Roberts vs. Carr; 1 D. & E. 701, Doe vs. Burt, 10 Mass. 459 ; Leland vs. Stone ; 1 Mason, 19 ; **** vs. Dickson,¡ 6 Mass. 116, Foster vs. Woods. Sée also 16 Johns. 14, Livingston vs. Ten Bro.eclc; 3 Mass. 361 ¡Adams vs. Frothingham ; 9. East, 1 o, Doe vs. Dixon. By this testimony it appears, that there were sufficient stones to satisfy the exception without resorting to the ledge ; that the ledge could not then have been meant by the parties to be excepted, since it Was utterly useless ; that it was no't even known to exist in or on the premises; that if plaintiff’s parol testimony showed that, in that neighborhood, the stones were called jree stones, the second deed shows that, when speaking of the kind, it was then called freestone, viz. “ a quantity of freestone.”</p>

<p>!Trespass for an assault and battery. Plea, not guilty as to all the trespass, except the assault and battery, and a justification of that in defence of the defendant’s possession. Replication, that the trespass was committed of the defendants own wrong, and without the cause assigned ; on which issue was joined.</p> <p>' On the part of the plaintiff, Daniel Bates testified, that in March, 1827, the plaintiff went into the book store of Geo. W.</p> <p>Hill &. Co. and sat down, and soon fell asleep; — that the defendant spoke to him, hut the plaintiff did not hear; — that the defendant spoke to him again, and told him he had found an article in a newspaper which suited his and Lewis’s case ; — that the plaintiff, after hearing the article read, asked the defendant if he thought ii applied to his case ; and the defendant said he did ; — that the plaintiff asked him if he knew the facts, and the defendant said he did; that he had heard them from Lewis, and would believe him sooner than the plaintiff, for Lewis had never falsified his word to him as the plaintiff had ; — that the plaintiff told the defendant he had never falsified his word to him, and if he reported such a story, it was false; — that the defendant told the plaintiff he should leave the store, and the plaintiff said he should not for him ; ■ — that the defendant told the plaintiff he lied, and the plaintiff said the defendant lied ; — that the defendant said, if he repeated the words, he should leave the store ; and the plaintiff told the defendant not to lay his hands on him again, for he should.not leave the store for him ; and that the witness heard a noise an4 scuffle, and. on turning round, saw that the plaintiff had been forced nearer the door than before. The plaintiff also produced and read the deposition of Geo. W. Hill, which was as follows:</p> <p>“ I, Geo. W. Hill, of Montpelier, in the county of Washington, State of Vermont, of lawful age, do testifiy and say, that on or about the 30th day of March, 1827, as I came into the office, Mr. Steel inquired of me if I had seen Esqr. Watrous. I told him I not- sa>d be was looking for me. I inquired if be knew what be, Watrous, wanted. Steel said be had had some difficul-with him. Immediately Watrous came in. He appeared Considerably excited ; inquired of me if I calculated to have peo-pie insulted and abused in the store ; and claimed protection. I told him I wished to have people treated civilly there, and that he was in no danger. I then inquired into the affair, and they, Wat-rous and Steel, went on to relate the circumstances which led to the difficulty, the particulars of which I do not now fully recob lect, but, as near as I can, are as follow : — Steel was looking over the papers of the day, found an article to which he called the attention of Watrous, and said, it was an article for him, which 'was read on the request of Watrous by Steel. Watrous then in* quired why for him. Steel replied, it was analogous to his case with Lewis. Watrous then said he had understood that Steel had censured him for suing Lewis, and asked him where he had his information respecting it, and said you had it from Lewis,I suppose. Steel answered, he had, and from others. Watrous then said, you believe all that Lewis says, I suppose. Steel answered he did, as he had had considerable acquaintance with' him, and he, Lewis, had never falsified his word to him, and that he, Wat-rous, had concerning the brick house. Watrous then charged Steel with falsehood. Steel then told him not to repeat it again in the store. He, Watrous, then repeated it, and Steel told him to go out: Watrous refused ; and Steel took hold of Watrous’ cloak which was over him.”</p> <p>It appeared further from the deposition, that Mr.TIill, on being further interrogated and cross-examined, said he had, sometime before the affray, given Watrous liberty to call at the store, and read the news-papers; that a circulating library was kept there, and Watrous was a subscriber to it ; that he, the witness, and Steel were partners in the printing and book-selling business; that Steel had the charge of the book-store generally, and it was his duty to keep order there, and transact the business of the company. Edward Lamb testified that at the time of the alleged trespass the plaintiff was sick and declining with a consumption.</p> <p>On the part of the defendant, Francis Clark testified, that the plaintiffcame into the book-store and sat down, while the defendant was reading newspapers ; — that the defendant spoke to the plaintiff, and said he had'found a piece (hat applied to his and Lewis’s case ; — that the plaintiff, being asleep, did not hear him, and the defendant spoke again, and the plaintiff’ said he should like to hear the piece read ; and, after hearing it, asked the defendant if he thought it applied to his case; — that the defendant said he did ; that he had heard Lewis’s story, and would believe him,for he had never falsified his word to bint as the plaintiff had;— that the plaintiff asked wherein he had falsified his word, and the'' defendant said as to the brick house; on which the plaintiff said it was false ; — that they theu contradicted each other, and the defendant told the plaintiff he should leave the store.</p> <p>The court directed the jury, amongst other things, that if the plaintiff was in the hook-store making a noise or disturbance, the defendant, after requesting him to depart, might lawfully use all necessary force, short of actual striking, to put him out; but although the defendant had such right, yet as the plaintiff entered the store by license, if the jury found that he was conducting himself peaceably and making no disturbance there, and that the defendant was the aggressor, and used insulting language to the plaintiff to irritate and provoke him, they would inquire — although the defendant requested him to leave the store, and he refused — whether the assault was made upon the plaintiff to remove him from the store and in defence of his possession, or whether it was done without such intent, and the occasion was sought by the defendant to lay hands upon the plaintiff for the purpose of injuring and abusing him. If they found that the assault was committed for the former cause, they would return a verdict for the defendant; if for the latter purpose, the defendant’s plea of justification was not supported ; and they would find 'such damages for the plaintiff as they thought he deserved to have. The jury returned a verdict for the plaintiff.</p> <p>The defendant having filed exceptions, the cause was ordered to pass to the Supreme Court.</p>