Volume 40 — Vermont Reports

This was an action of assumpsit to recover three hundred dollars-town bounty. Plea, the general issue, and trial by court by consent of parties, April Term, 1866, Wilson, J. presiding. The quota of the town of Newfane, under the call of October 17th, 1863, by the President for three hundred thousand men, was eleven men, and its deficiency under former calls was eight men.

Ejectment to recover certain lands in Halifax. Plea, the general issue. The case was submitted to the court upon a statement of facts agreed to by the parties.

<p>Debt on judgment.</p> <p>The defendants’ second plea was as follows, viz:</p> <p>“ And for further plea in this behalf, by leave of court first had and obtained, the said defendants say that said plaintiff ought not to have or maintain his aforesaid action thereof against them, because they say that after the rendition of the judgment upon which this suit is brought, to wit, at the May Term of Windsor county court,</p> <p>A. D. 1859, said Solomon Downer was the plaintiff in interest in a certain suit then pending in said court, in which suit the South Royalton Bank were plaintiffs, and Chester Baxter and James S. Moore, •were defendants. And the said Downer, at the term of said court two years previous to the one last above mentioned, had taken out execution upon the judgment on which this action is based, and had levied said execution upon certain horses and colts, as the property of said Cowdery, and said horses and colts had been sold upon said execution as the property of said Cowdery. That one Rufus H. Hyde, of Chelsea, owned, or claimed to own,' a part of said horses and colts, and one Edward Sprague, of Randolph, owned, or claimed to own, the residue of said horses and colts, except one ; and the said Hyde and Sprague had before forbidden, and at the time of said sale did forbid, the sale thereof. And the said Hyde and Sprague were, at the time above named, to wit, in May, A. D. 1859, threatening and intending to bring a suit, or suits, against said Downer for said horses and colts.</p> <p>“ That after the sale of said horses and colts, as aforesaid, to wit, at the December Term of "Windsor county court, A. D. 1857, said Downer brought a suit in trover against one Wallace Foster, of Tun-bridge, for said horses and colts, — claiming and alleging that said horses and colts had been by said Foster'kept from-his, said Downer’s, possession, which suit was pending in Windsor county court, at the May Term thereof, in 1859.</p> <p>“ That in the above named suit, — South Royalton Bank against Baxter and Moore, — it became necessary for said Downer to have the testimony of men who were acquainted and conversant with the affairs and business of said Bank. And the said Downer then and there agreed with this defendant, David W. Cowdery, that if said Cowdery would give him, said Downer, information as to who said witnesses were, and as to what could be shown by them, in said suit, so that said Downer could summon them to testify thereon, and would also arrange and settle matters with said Hyde and Sprague in such a way as to prevent any suit being commenced by said Hyde and Sprague, or either of them, in reference to said horses and colts, and save him, said Downer, harmless from all costs, trouble or expense, on account of the sale of said horses and colts, he, said Downer, would deliver up to said Cowdery, to be satisfied, the judgment and execution upon which said horses and colts were sold as aforesaid, — which is the same judgment upon which the present suit is brought, — and would also discontinue and withdraw said suit against Wallace Foster, before named.</p> <p>“ Now the said defendants aver, that in pursuance of said agreement between said Downer and Cowdery, the said Cowdery did assist said Downer in procuring the testimony of the witnesses in ' said suit, and did ascertain who said witnesses were and what could be proved by them, and informed said Downer of the same. And said witnesses were summoned and testified in said suit on the trial thereof.</p> <p>“ And the said Cowdery made said arrangement with said Hyde and Sprague, whereby they forebore to prosecute any suit or suits against said Downer by reason of the sale of said horses and colts as aforesaid.</p> <p>“ And neither said Downer in his lifetime, nor his administrators since his decease, have ever been called upon by said Hyde and ■Sprague, or either of them, by reason of their said claim.</p> <p>“ And the said Downer, in pursuance of his said agreement with said Cowdery, did thereupon discontinue and withdraw said, suit against Wallace Foster, before named, but neglected and failed to deliver up said judgment and execution, as thus agreed upon between them, as aforesaid. And this the said defendants are ready to verify. Wherefore they pray judgment,” &c. .</p> <p>Issue was joined on said plea, and the case was tried'by court by agreement of parties. The defence was made wholly upon said plea, and evidence was given upon both sides, from which the court found the averments of said plea to be proved, and rendered judgment for the defendant Cowdery, — to which the plaintiff excepted. The case was tried at the May Term, 1865, Barrett, J., presiding.</p>

This was an action of trespass and trover. Pleas, tbe general issue, and justification by Crowell as collector of a school district. The case was submitted on the school district records and an agreed statement of facts, which are sufficiently stated in the opinion of the court.

Assumpsit for money had and received. Plea, the general issue. Trial by court, May Term, 1866, Barrett, J., presiding.

<p> Pent Roads. Highways. </p> <p>All pent roads are public highways, though called in the early statutes “ private roads,” — that is to say, they may be used by all, — but they are not open highways.</p> <p>In the absence of any prescribed regulations by the proper authority, in respect to gates and bars across a pent road, the owner of the land through which the road is laid may erect gates and bars for the protection of his field and crops, if they do not interfere with the reasonable use of the road as a pent road.</p>

This was an action on breaeli of covenant in a deed from the defendant to the plaintiff. The case was referred, and the referee reported as follows, viz : That the defendant conveyed the premises named in the declaration to the plaintiff, and with the covenants as set forth in the declaration ; that the premises were incumbered as therein set forth ; that the plaintiff took possession of the premises in the spring of 1859.

This was an action of assumpsit on two promissory notes, and sued by the plaintiff as bearer and endorsee. Pleas, the general issue, statute of limitations, payment and release, and discharge. The pleas were all traversed, except the second, and to that a new promise was pleaded, and issue of fact joined thereon to the jury. The case was tried at the June Term, 1866, Peck, J., presiding.

Trover for certain property consisting of cattle, horses and hogs. Fleas, the general issue, and a special plea of estoppel. The latter pleg, set up a disclaimer of ownership of the property, and other facts as hereinafter stated. To this the plaintiff demurred specially, and the court, Peck, J., presiding, sustained the demurrer, and decided that the plea was sufficient, — to which the defendant excepted. The case was tried by jury at the June Term, 1806.

This was an action of debt on judgment. Pleas, 1st. Nultiel record. 2d. That tbe cause of action did not accrue within eight years, etc. 3d. That the action was not brought within eight years after the rendition of the judgment declared upon. Upon the first plea no question arises. To the second and third pleas the plaintiff replied, and to the replication the defendant put in a general demurrer, and the question is as to the sufficiency of the replication.

<p>[In Chancery.]</p> <p> Costs. Practice. Chancery. </p> <p>Kemarks upon the practice and habits of the bar, in the aggregate, in the matter of taking testimony in Chancery. The needless diffuseness and prolixity — sometimes impertinence and scandal, that characterize the proceedings, condemned.</p> <p>In this case the bill was dismissed with costs to the defendant, except costs of testimony taken before the master, for which the defendant was not allowed to tax costs against the orator on account of the improprieties in the testimony.</p>

Book account to recover for a bill of goods furnished the defendant’s wife. Judgment to account was rendered, and an auditor appointed, who made a report, the substance of which is stated in the opinion of the court. Upon the report, the county court, Pier-point, Ch. J., presiding, at the September Term, 1867, rendered judgment, pro forma, for the plaintiffs to recover the amount found by the auditor, $76 84, with interest, — to which the defendant excepted.

Bill in Chancery. The bill set forth that on the 2d day of October, 1862, Harvey Groot and Hannah Maria Groot, his wife, executed and delivered to Caroline C. Van Namee, a mortgage of certain lands in Burlington conditioned for the performance of the obligation of a certain bond, the condition of which is as follows: The condition of this obligation is such, that whereag the said Caroline C. and Daniel A. Van Namee, her husband, have this day ■sold and conveyed to the said…

This was an action of ejectment. The case was referred and was heard on the report at the September Term, 1867, Pierpoint, Ch. J., presiding, and judgment was rendered pro forma for the plaintiff, — . to which the defendant excepted. The substance of the report, so far as it is material to-the question decided, is stated in the -opinion of the court.

“ This was an action of assumpsit for the breach of a contract to “ carry the plaintiff as a passenger. The case came into the county “ court on an appeal from the judgment of the recorder of the city of “ Burlington, rendered on the 13th day of August, A. D. 18C6.

<p>[In Chancery.]</p> <p> Chancery. Jurisdiction. </p> <p>A suit in Chancery was brought in Chittenden county to compel the defendant to convey to the orators, as trustees, under the second mortgage, of the Butland & Burlington R. R. Co., some real estate situated in Chittenden county received and held by the defendant for the benefit of the trust represented by the orators. One of the orators and the defendant lived in Boston, Mass'.; the other orator lived in Rutland county. Held, that under the statute, sec. 17, ch. 29, Gen. Stat., the bill was properly dismissed by the Chancellor for want of jurisdiction.</p>

This was a complaint for bastardy, prosecuted by the overseers of the poor of Underhill, for the benefit of that town, under the statute provisions for that purpose. Trial by jury, and verdict for the defendant, at the April Term, 1867, Pierpoint, Ch. J., presiding.

Scire facias on the defendant’s recognizance as sureties for the faithful performance of the duties of sheriff of Chittenden county, by S. W. Taylor, late sheriff, alleging, as a breach of official duty on the part of Taylor, his neglect to keep certain goods, attached by him on the 3d February, 1851, on a writ of attachment in favor of the present plaintiff against one James Nichols.

This was an action of assumpsit, on a promissory note, and on the general counts. The defendant filed, among others, a plea of the statute of limitations, to which the plaintiff rejoined, and the defendant demurred to the rejoinder, which demurrer was sustained by the Supreme Court, at its January Term, 1866, and the plaintiff had leave to amend upon the usual terms.

Indictment for a conspiracy in five counts, to which the respondents filed general demurrer, on which the court, at the April Term, 1866, Pibkpoint, Ch. J., presiding, pro forma, adjudged the indictment sufficient and the respondents guilty, — to which decision the respondents excepted.

Indictment for not making a highway pursuant to the order of the court.

This was a petition to foreclose a mortgage executed by the defendant, Bowers, to one George B. Conger, on tbe 3d day of January, 1848.

Book Account. It appeared from the auditor’s report that the plaintiff was a drover and had been in the business of buying and selling cattle and sheep for several years ; that about the 1st day of October, 1865, the plaintiff had a conversation with the defendant and one Page about purchasing sheep to put upon their farm to feed for market, the plaintiff informing them that he was going to purchase some for himself.

This was an action on the ease in two counts. The first was trover, alleging the conversion of certain personal property. Plea, the general issue, and trial by jury at the April Term, 1867, Wilson, J., presiding.

This was au action of replevin heard upon llie following agreed facts : “ The goods in question were spirituous liquor?, not in the original packages in which they were imported into the United… Held: of the plaintiffs’ claim on the goods to stop them in transitu.

<p> Trespass. Fence. Charge to Jury. </p> <p>In trespass quare clausum, for the entering of cattle, if the defendant does not defend on the ground of defect in the plaintiff’s fence, it is not incumbent on the plaintiff to show that his fence was legal in order to make out his right of recovery; therefore, the charge of the court “'that there being no evidence tending to show that the plaintiff’s fence was not a legal fence, or satisfactory to the defendant, or that the defendant’s cattle ever went on to the plaintiff’s land by reason of the plaintiff not having a legal fence, the presumption is that the plaintiff’s fence was legal,” could work no detriment to the defendant, and was not subject to exception.</p>

This was an action of ejectment. Plea, the general issue, and trial by the court at the September Term, 1806, Wilson, J., presiding. The only question raised in the bill of exceptions relates to a decision of the county court excluding the defendant as a witness,— to which the defendant excepted. The facts are substantially stated in the opinion of the court.

This was an action against a sheriff for releasing an absconding debtor, duly arrested, in pursuance of a certificate of an assistant judge of the county court discharging the debtor. The case was referred, and the referee embraced in his report the capias and certificate by virtue of which the debtor was arrested, the entries by the magistrate upon the writ, the docket entries in the county and supreme courts, &c. The title of the case was Brown v. McGowan.

This is au action of trespass, guare clausum fregit, to which the defendant pleaded specially, and the plaintiff demurred. The court, at the September Term, 1867, Barrett, J., presiding, overruled the demurrer, adjudged the plea sufficient, and rendered judgment for the defendant, — to which the plaintiff excepted.

This is an action of trespass on tlie case for commencing suit against the plaintiff before a justice of the peace, and suffering the same to be discontinued by the non-attcndance of the justice. Plea, the general issue and notice of payment of $17.27. taxable costs. Trial by jury, April Term, 1867, Barrett, J., presiding.

This was an action of assumpsit — general and special counts — to recover $300. bounty. Plea, general issue and special plea. Trial by jury, September Term, 1867, Barrett, J., presiding. It was conceded that the President of the United States issued his proclamation on the 17th day of October, 1863, calling for 300,000 men to serve as volunteers in the. army of the United States.

<p>Action, general assumpsit. Case referred, and referee reported that the plaintiff presented a note, dated February 16th, 1863.</p> <p>To the admission of this note in evidence the defendant objected, on the ground that it was never legally stamped.</p> <p>The note was given on the day of its date by the defendant to the plaintiff for property then sold and delivered to the defendant by the plaintiff. No revenue stamp was then affixed to the note, and it remained unstamped in the plaintiff's possession until a few days before the trial, when the plaintiff himself affixed a five cent revenue stamp to it.</p> <p>Nothing was said by either party about a stamp at the time the note was given, nor any permission given by the defendant to the plaintiff to affix a stamp at any subsequent time.</p> <p>The referee found that the omission of the stamp was accidental, and with no design by either party to evade the stamp act, and admitted the note as evidence, and found for the plaintiff to recover the amount of said note, deducting endorsements. At the September Term-, 1867, Barrett, J., presiding, the court rendered a judgment, on the above report, for the plaintiff, for the amount found due by. the referee. Exceptions by the defendant.</p> <p>The note was improperly admitted in evidence.</p> <p>The fa.ct that there was no design on the part of either of the parties to evade the provisions of the stamp act did not render the note admissible in evidence. Neither does the fact that it was subsequently stamped, as detailed in the report, make it admissible.</p> <p>The cases of HUchcoak v. Sawyer, 39 Yt. 412 ; Beebe v. Hutton, 47 Barb. 187; Denny v. Baker et al., 36 Mo. (Law Beg. May 1866, p. 447) ; Garland v. Lane et ux., Sup. Ct. N. H. (Law Beg. Feb. 1867, p. 255) ; Tobey v. Chipman, 13 Allen, (Law Beg. Nov, 1867, p. 64,) which may be cited by the plaintiff’s counsel, are by no means authorities for the plaintiff.</p> <p>All these cases arose under different statutes, and, some of them, upon different instruments, attempted to be used in a different manner and for a different purpose than the one now in controversy. See cases above cited ; also, Act of 1863, § 16 ; U. S. Stats. 1864, §§ 158, 163, pp. 293-5; U. S. Stats. 1865, ch. 78, 481.</p> <p>The note in the case at bar was executed while the law of 1862 was in force, and was stamped and offered in evidence by the plaintiff, and admitted by the court under the act of July 13th, 1S66. This act prescribes a new and altogether different mode of affixing stamps to instruments originally issued without being stamped, than that prescribed in the act of 1864. See act of 1866, p. 148.</p> <p>Section 163 of the act of 1864, was expressly repealed by the act of 1866. And the act of 1866 not having been altered or amended by the act of March 2d, 1867, so far as relates to stamp duties, this question must be governed by the act of 1806. Under the act of 1866, the duty of stamping instruments theretofore issued, is expressly confided to the collector, and that power cannot be by him delegated to his deputy. Beebe v. Hutton, 47 Barb. 187.</p> <p>And if that duty cannot, under the law, be delegated by the collector to his deputy, then, in the absence of the law authorizing it, how can a person legally stamp his own instruments issued prior to the time the law of 1866 went into operation?</p> <p>I. The referee finding the fact that the omission to stamp the note in question “ was accidental, and with no design by either party to evade the stamp act,” correctly'admitted it in evidence. Bebee v. Huilón, 47 Barb., reported in Am. L. R., July No., 1867, p. 574.</p> <p>The provisions made by the law of the United States, of June 30th, 1864, § 163, for stamping, in the presence of the court where it is used, any instrument before that law signed or issued without being stamped, are not repealed or affected by the law of March 3d, 1865, which applies to instruments requiring stamps under the law of June 30th, 1865. Garland v. Lane et ux., Sup. Ct. N. H., reported in Feb. No. Am. L. R., 1867, p. 255. See, also, Beebe v. Hutton-, Tobey v. Ghipnian, 13 Allen’s R., reported in Am. L. R., Nov. No., 1867, p. 64.</p> <p>II. In this case the note was not the only evidence of the defendant’s indebtedness to the plaintiff, for the exceptions show that a full hearing was had by the parties, as td the consideration of the note, and its rejection could not have varied the result.</p>

Prosecution for bastardy, the overseer of the poor of Jamaica prosecuting. Trial by jury, at the April Term, 1867, Barrett, J., presiding. Upon the trial the prosecutrix testified that she was a single woman and bad never been married ; that she had a child which was begotten at her father’s house in Jamaica, on the 14th day of May, 1864, and was borh on the 17th day of February, 1865, and that the defendant was the father of said child.

Trespass guare clausum fregit. The defendant filed several pleas as set forth with other facts in the opinion of the court. The question discussed in the opinion, and decided by the court, arose upon demurrer to the fourth and fifth pleas — which were alike, except in the beginning and conclusion.

Book Account for pasturing one hundred and one sheep through the summer of 1866, at fifty cents per head. In relation to said account the auditor finds, that in the early part of May, 1866, the plaintiff called on the defendant for the purpose of renting his pasture, and that the defendant refused to hire it for the reason that he had never seen it.

This was an action of trover to recover as damages the value of a note of one hundred dollars payable to Joseph Benior or bearer, which the plaintiff claims as the property of the estate he represents,- and which the defendant has converted to his own use. Plea, the general issue, and trial by jury at the December Term, 1866, Steele, J., presiding.

This was an action of assumpsit to recover a town bounty conceded to be unpaid. Plea, the general issue. Trial by jury, December Term, 1866, Steele, J., presiding. The defendants promised the plaintiff to pay him seven hundred dollars, town bounty, if he would enlist to their credit, payable when he should be mustered into the United States service.

Assumpsit to recover a balance of a bounty. Plea, the genera^ issue and notice, and trial by jury at the June Term, 1867, Steele, J., presiding. The plaintiff enlisted September 29th, 1863, in a new organization called the third Vermont battery, light artillery. He enlisted to the credit of the town of Walden ; was mustered in January 1st, 1864, and served regularly until honorably discharged. He was mustered in under the President’s call of October 17th, 1863.

This was an action of trespass guare clausum fregit. Plea, the general issue and notice. Trial by court at tbe June Term, 1867, Steele, J., presiding. The following facts appeared on trial: The plaintiff, at the time of the entry complained of, was in possession of the land in question, and claimed to own it. The •defendant claimed to own the premises also, and removed some windows, of the value of five dollars, from a mill on the premises. The' issue was as to the title.

<p>This was an action on the case. The letter referred to in the opinion of the court, which the declaration alleged was written by the defendant, Laura Taft, and sent to the plaintiff with the unlawful, wicked and malicious intent to frighten the plaintiff and his family, and to cause them to fear and believe that the soldiers in the army would burn his buildings and murder him or some of his family, and to compel him to avoid the burning of his building and the murder of himself, or some of his' family, to remove from the town of Barre, where he lived and owned a farm, to some distant place, was as follows:</p> <p>“ Montpelier Hostiple, Dec. 24th.</p> <p>“ Mr. Dudley Taft I surpos you can remember when your son “ George was arested and put in jail. Thare was two more boys “ taken at the same time, and put in jail with your son. You son “ roate to you that those boys were a goin to git away at such a “ time, and through your means it was reported to the jailor, and tha “ were all put in irons. Those boys roate to their friends soldiers “ to have revenge on him and tha have. He was wounded in the “ battle of the Wilderness by one of his own compney, and now tha “ say thay will have revenge on you. You felt bad to have your son “ reported, but you are vary willint to report others. You strike one “ soldier, you tuch them all. I should a’dvis you and you family not “ to be out after dark. Tha say tha will have revenge on you and “family, if it is not this ten years. I tremble for you and family. “ One sayes he will lay your bilding in ashes. Perhaps you had “ beter leave thease parts. Your son said he felt bad to think he “ broat sutch a disgrace upon his parents and brothers, and wish he “ had live beter so as to meet his friends in heven. I knelt twise at “ his diim bed and prayde that he mite be for given. I with hold “ my name for if my friend soldiers knew that I had inform you of “ you dangar, they would put me under the sods less than no time. “ Tha hav cause you son be put under the sods, and tha will you or “ some of you family. Be vary causious how you keep travlers “ over night, and say tha are after worke. This war will cause “ grate meny harts to bleede.” “ A Soldier Friend.”</p> <p>And the plaintiff further averred that all the pretended facts set forth in said letter are wholly false, and were known to be false by the said Laura Taft at the time she* wrote said letter and deposited the same in the post office, etc. *****</p> <p>And that he received said letter, etc., read the same and showed it to his family ; “ and by reason thereof the plaintiff and his family became and were greatly frightened by the contents of said letter, and were led to believe and did believe that their son had been killed by his own company out of revenge, and that there was a conspiracy among the soldiers at the hospital at Montpelier, and others, to burn the plaintiff’s buildings and murder the plaintiff or some of his family. And the plaintiff and his family suffered great pain of mind in consequence thereof, and the plaintiff for a long time could not sleep nights on account of fear of the soldiers burning his buildings and murdering him and his family, and was put to great trouble and expense in trying to ascertain whether such conspiracy existed among the soldiers, and in finding the author of said letter, to wit: twenty dollars in expenses and two months time of the plaintiff, of the value of one hundred dollars.”</p> <p>The defendants filed a general and special demurrer to the declaration, and the case was heard on the demurrer at the September Term, 1866, Kellogg, J., presiding, and the court decided that the declaration was insufficient, and that the defendants were entitled to judgment in their favor on the demurrer, and accordingly rendered judgment in favor of the defendants, — to which decision and judgment the plaintiff excepted.</p> <p>maintained that the facts set forth in the writ constitute a good cause of action, and cited Griffin v. Farewell, 20 Yt. 151; Shelden v. Fairfax, 21 Yt. 102 ; Perley v-Framer, 3 Term, 44; Ljongrage v. Lary, 2 Mason & Wellesby, 519.</p> <p>Menace alone, without a consequential inconvenience, makes not the injury. But to complete the wrong there must be both of them together.</p> <p>The remedy for this is in pecuniary damages to be recovered by action of trespass met armis. 3 Black. Com. 120 ; State v. Benedict, 11 Vt. 236, pp. 237 and 239 ; 1 Swift’s Dig. 477 ; Referring to Black. Com. 120; 2 Bouvier’s Law Dictionary, 155, Title, menace; 1 Chitty’s PI. 197, citing Blackstone.</p> <p>If the facts set forth in the writ and 'letter were calculated to frighten people of ordinary firmness, then the plaintiff is entitled to recover such damages as a jury shall award.</p> <p>maintained that the action is unknown to the common law, and our statute makes no provision for such a proceeding, and cited Gen. Stat., ch. 112, § 27 ; Russell on Crimes, p. 717.</p> <p>But if the writing of the letter was unlawful, the plaintiff’s declaration is insufficient to warrant a judgment in his favor. Stephen on PI, p. 302. j</p>

The plaintiff’s declaration contained two counts in trespass de bonis, with a count in trover. Plea, the general issue. The action was originally commenced before a justice of the peace, and came to this court by appeal and was referred. The referee reported that the action was brought to recover for four windows, commonly called double windows, and two side light window blinds, alleged to be the property of the plaintiff and taken by the defendant, found to be worth $18.50.

Trustee Process. The commissioner appointed to take the disclosure reported as follows, viz : “ That in the fall of 1868 the principal debtor was required to furnish bail in the sum of $150. for his appearance to the Washing-, ton county court to answer to the crime of procuring enlistments of soldiers in Vermont for the United States army contrary to the statutes of Vermont, and that he applied to the trustee and requested him to become his bail, and that said principal…

This was an action of trespass and trover for a sheep and a fleece ,of wool. Plea, the general issue. Trial by jury, at the March Term, 18G7, Peck, J., presiding. It appeared that the parties both lived in Cabot, on adjoining farms ; that in the spring, when the defendant was washing his sheep, three of the plaintiff’s sheep, with his marls on them, were discovered by the parties among the defendant’s sheep.

Tins was an action upon the statute for transporting a poor and indigent person from the town of Walden into the town of Marsh-field, with an intent to make the town of Marshfield liable and chargeable for her support. The action was not for the penalty, but for the recovery of some $40. or $50. expenses the plaintiff town was compelled to pay in supporting the pauper. The plaintiff introduced evidence tending to prove all the facts necessary to make a prima facie case.

This was an action of general assumpsit originally commenced before a justice of the peace, and brought to this court by petition for new trial. Plea, tender and general issue, and plea of tender traversed. Trial by jury at the December Term, 1866, Steele, J., presiding. The plaintiff kept a lumber yard and wood shop in the village of St. Johnsbury. The defendant was a house joiner in said village.

<p>This is an action of assumpsit. Plea, general issue and notice. Trial by jury, June Term, 1866, Steele, J., presiding.</p> <p>The plaintiffs’ evidence tended to show that on the 19th of January, 1859, they sold, by verbal contract, 1,900 bushels of potatoes to the defendant, 1,500 of which were to be “ fancies,” at forty-five cents, and 400 to be “ commons,” at two shillings per bushel. The defendant’s testimony tended to show that the contract was for a different amount and price.</p> <p>On the 19 th of February, the defendant received a car load of potatoes. There was no evidence to show that they w’ere not received on the contract, and the plaintiffs’ testimony tended to show that they were, and that the defendant then said that he would come for the rest soon.</p> <p>In January, potatoes fell in market, and the defendant wrote the plaintiffs a letter, dated January 27th, 1859, in which he said, “ do not buy any more” (potatoes) “ of any kind until you hear from me.”</p> <p>The plaintiffs’ testimony tended to show that they had bargained for all or nearly all the potatoes which the defendant had contracted before they received this letter. The evidence on both sides tended to show that the defendant was to take the potatoes as soon as he could run another lot to Boston, and get the sacks-to run these.</p> <p>In May after, the defendant sent the plaintiffs a check of $180., which was within one or two dollars of the amount, at the contract price, due for the potatoes, which had been received by the defendant. The balance of the potatoes, some ten to fifteen hundred bushels, the defendant neglected to call for. The plaintiffs kept them till some of them were destroyed by rot and freezing, and as soon as they could learn that the defendant was not going to come for them, sold them as well as they could, and partly by direction of the defendant himself.</p> <p>The defendant requested the court to charge the jury that the contract was within the statute of frauds, and the taking of one load, and paying for them, was not part performance, but the court instructed the jury that if the load was-taken under this contract, and so understood by the parties at the time, it would be part performance, although subsequently they were separately paid for.</p> <p>The court charged in accordance with the defendant’s request, that after the reception of the letter of January 27th, the plaintiffs could buy no potatoes to rot or freeze at the defendant’s expense, but could recover only the net profit above expense and trouble which they would make by buying potatoes to fill any then existing deficiency in the contract quantity; and against the defendant’s request and exception told the jury that any loss by freezing or rot, which occurred without plaintiffs’ fault, by delay which the defendant induced, would be a proper subject of damages on all the potatoes purchased before January 27th.</p> <p>The defendant requested the court to charge the jury, that “ if the jury find that there was no time agreed on for the delivery of the potatoes, and that the potatoes were to be delivered by the plaintiffs in good condition, the defendant would have the entire season for running the potatoes, and would not be liable for any damage by freezing or rot, or in taking care of the potatoes.”</p> <p>The court declined so to instruct the jury.</p> <p>The court instructed the jury that the only damage the plaintiffs could recover on account of any of the potatoes of either kind, which lie had not purchased before January 27th, was the net profit above all expense and trouble which he would have made by filling the deficiency.</p> <p>It being agreed by counsel, that the delivery of this car load was not under the contract, the court left it for the jury to say whether or not the parties understood the car load was delivered under the contract, and in pursuance of it, and told them that if so understood it was part performance.</p> <p>t To the refusal of the court to charge in accordance with the several requests, the defendant excepted.</p> <p>The jury returned a verdict for the plaintiffs for 850 dollars.</p>

<p> Pauper. Removal. Settlement. </p> <p>The marriage of a woman to a man having no settlement in this state, does not destroy her settlement which she had at the time of marriage, nor so far suspend it as to prevent her children, born of that marriage, from taking her former settlement. It only suspends, during coverture, one of the ordinary incidents of a settlement, the right of removal.</p> <p>The mother of the pauper had a settlement in S. when she married the father of the pauper, who neither then had, nor afterwards acquired a settlement in thif state. The parents moved to N., the plaintiff town, when the pauper was twelve years old, and resided there until the father died, at which time the pauper was thirty years old, and the mother still resides there. When the order of removal was issued, which was soon after the death of the father, the pauper had never resided in any other town long enough to gain a settlement in his own right. Held, that he took the settlement of his mother in S.</p>

<p> Pauper. Removal. Evidence. Grand List. Town Clerh. </p> <p>Under section 11, chapter 20, General Statutes, a copy of the order of removal of a pauper must be delivered to, or served on, the overseer within thirty days after' making the order, and sooner if the warrant of removal is sooner executed. But the act of 1864, No. 18, so altered the law as to dispense with the delivery of the copy of the order if the warrant of removal is executed and served within thirty days after the order is made.</p> <p>A town clerk is not a certifying officer of a grand list or other documents required by law to be deposited in the. town clerk’s office but not to be recorded therein. Therefore his certificate is not sufficient authentication to make copies of such documents legal evidence.</p> <p>The plaintiff introduced the following-paper, signed by the town clerk of Wood-bury, as tending to prove the settlement of Geo. W. Fisher:</p> <p>“ Dear Sir : I find the grand list of Geo. W. Fisher, for the following years to be as follows: for the year 1829, Geo. W. Fisher, or.e poll, S10,” and'so on for the other years. At the close he certifies that “ the above list of Geo. W. Fisher is a true copy taken from the grand list books of Woodbury.” Held, that this was inadmissible, even if the town clerk was the certifying officer of the grand list, as the paper is not a copy pf that which, by law, constitutes a grand list.</p>

<p>Trustee Process. The commissioner reported that one Luke Potter, principal debtor, on the 20th day of September, 1861, was carrying on Isaac Merrick’s farm under a written contract, and that said Potter was indebted to Moses McFarland, claimant, in the sum of thirty-eight dollars and fifty cents, as specified in the note attached to the assignment, and in order to secure the same, made the assignment to said McFarland.</p> <p>Said assignment was made on the 20th day of September. The notice to said Merrick was made on the 28th day of September, and given to said Merrick, by said Potter, on the 30th day of September, 1861. The writ in this suit was prayed out and served on the 2d day of October, 1861, and the court holden on the 28th day of October, 1861.</p> <p>That the amount due for board on the 80th day of September, after deducting the list of credits, depends upon the construction of the assignment and farm contract. If the court should be of the opinion that the assignment is invalid, then I find the sum of sixteen dollars due from said Merrick to said Potter, at the time of the service of the writ, after deducting the credits of forty dollars and sixty cents, and the sum of twenty-two dollars at the time of the justice court, and the sum of sixty-one dollars and eighty-five tsents as allowed before the commissioners on said Merrick’s estate, which sum embraces the two previous, all related to and grew out of the farm contract.</p> <p>If the court should be of the opinion that the assignment is valid, then I find nothing due from said Merrick for which he could be held as trustee of said Potter at the date of the justice trial.</p> <p>The farm contract has mainly been kept at the town clerk’s office in Waterville, where it was put by the parties to it. It has been used at the justice court, before the commissioners, and on the present trial. But it does not appear that the said McFarland hits ever had possession of it, or ever given the town clerk notice of the assignment of it. Said claimant never took possession of the farm or stock.</p> <p>Note.</p> <p>$88.50.</p> <p>For value received, I promise to pay Moses McFarland, or bearer, thirty-eiglit dollars and “0, on demand, with interest annually.</p> <p>Morristown, September 20th, 1861.</p> <p>Assignment.</p> <p>Sold and transferred as security for the above note to said M. McFarland, or bearer, all my right, title, interest and claim to the stock on the place now occupied by me, and in the spring of 1862, when the same is to be appraised; also my claim against Isaac Merrick, relative to his board, to commence four weeks from this date, meaning that the said Merrick shall pay to said McFarland what Is coming to me, except what is necessary to pay for hired house help, until the above note is paid. Luke Rotter.</p> <p>Morristown, September 20th, 1861.</p> <p>Notice.</p> <p>Waterville, September 28th, 1861.</p> <p>Mr. J. H. Merrick,</p> <p>Sir, — I hereby notify you that Luke Potter has made an assignment to me of all his interest that he has, or may have at the end of the year, in the stock on your place, and any other interest he may have; also what may be due from you for board.</p> <p>Yours truly,</p> <p>Moses McFarland.</p> <p>f Upon the hearing on the commissioner’s report, at the May Term, 1866, Wilson, J., presiding, the court held thál the goods, effects or credits in the hands of the said trustee belonged to McFarland, the claimant, and that the trustee should be discharged with costs, — to which the plaintiff excepted.</p>

<p>Action on tiie case to recover damages for fraud in the sale of an interest in a machine called perpetual motion. Plea, the general issue, and trial by jury, June Term, 1866, Wilson, J., presiding. The declaration and written contract herein referred to, were as follows, viz : Declaration. “ In a plea of the case whereupon the plaintiff declares and says, that heretofore, to wit, on the 18th day of March; A. D. 1864, the defendant pretended and represented to the plaintiff that he, the defendant, had invented and owned a certain machine, being a wheel connected with an axis, and supported by two posts or pillars, to which wheel were attached sundry balls and screws, called a perpetual motion, which said wheel, with said balls and screws, was made or constructed on a principle of self-creating, or self-renovating power, or of perpetual motion by which said wheel or machine would run or move forever, or until said wheel or machine was worn out, without any winding up or renewing of the power of said machine, or application of any power or extraneous means whatever. And the plaintiff says, that believing and confiding in this representation to him made by the defendant, and at the • special instance and request of the defendant, he purchased of him, to wit, at Troy, aforesaid, to wit, on the day and year aforesaid, an interest in said wheel machine or invention, and paid the defendant a large sum of money, to wit, the sum of $300., by which contract with the defendant, said machine or. invention was to he exhibited at different places to the public for money, and the said plaintiff was to have one-third of the gross proceeds arising from said exhibition pntil he should receive the sum of $300., and one-sixth of the gros§ proceeds of said exhibition afterwards. And the plaintiff says, that at the time of said sale by the defendant to the plaintiff, and the payment of the said sum of money by the plaintiff to the defendant, the said machine or invention had no such principle or power of perpetual motion, or of any independent power of self-creating, or self-renovating motion as represented by the defendant to the plaintiff, and this was well known by the defendant, and wholly unknown to the plaintiff, and concealed from the plaintiff, but that said wheel or machine was moved by a certain piece of machinery or clock work, which required to be periodically wound up or renewed secretly and artfully concealed in the platform or bottom of said machine, and by a line, thread or wire extending from said platform through a hole or hollow in one of the posts that supported said axis of said wheel, and so turning or moving said wheel, and was without any such principle of perpetual motion or new discovery in machines as represented by the defendant to the plaintiff. And the plaintiff says, that said machine became and is of no value to him or any honest man ; that the same contains and has no new principle or discovery in machines, and is simply a contrivance of fraud and imposition designed to cheat the ignorant and simple, whereby the plaintiff says he has wholly lost the said sum of money so paid by him to the defendant, as aforesaid, and also time, labor and expense, to the value of $200., incurred and expended by him on account of said machine or wheel, all of which is to the damage of the plaintiff $500.”</p> <p>Agreement.</p> <p>“This agreement, made and concluded at Troy, in the county of Orleans, and state of Vermont, on this 18th day of March, A. D. 1864, by and between W. L. Leach, of said Troy, of the one part, and Abraham Gotleib, of the city, county, and state of New York, of the other part: Witnesseth, that the said Leach does, in consideration of the covenants and agreements of the said Gotleib, hereinafter written, assign and transfer to the said Gotleib, his, the said Leach’s interest in a certain contract made between the said Leach and John Young and Charles Haskins on the 7th day of March, A. D. 1864, in and by which contract the said Leach agreed to, and with the said Graves and Haskins to furnish them, for the purposes of exhibition, one of his, the said Leach’s machines, called “ perpetual motion,” and in which contract the said Young and Haskins covenanted and agreed with the said Leach that they would exhibit such machine to the public as they deemed most for their interest, and would pay over to the said Leach one-third of all the gross proceeds arising from the exhibiting of said machine to the public, ór from any and all sources after they shall receive the sum of one hundred and fifty dollars.</p> <p>And the said Gotleib covenants and agrees with the said Leach that he will take the assignment of his, the said Leach’s, interest in said contract, and will pay the said Leach for his said interest in said contract the sum of three hundred dollars upon the execution of this instrument; and the said Gotleib further covenants and agrees with the said Leach that he will pay to the said Leach one-half of the gross receipts arising from the exhibition of said machine, and which may belong to the said Gotleib by virtue of this agreement, after he, the said Gotleib, shall have received the gross sum of three hundred dollars from said exhibitions, and by virtue of the aforesaid contract of the said Leach with the said Young and Haskins.</p> <p>It is understood that the said Gotleib is to receive from the said Young and Haskins the said Leach’s share of the gross receipts arising from the exhibition of said machine until the said Gotleib receives the sum of three hundred dollars, after which time the said Leach is to receive from the said Young and Haskins one-half of the gross receipts of said exhibitions reserved to the said Leach in his contract'with the said Young and Haskins, and the said Gotleib is to receive the other half of said gross receipts. It is further understood that the said Leach by this contract assigns nothing but his interest in the profits of said exhibitions, and no interest in the ownership of the* machine.</p> <p>In witness whereof we have hereunto set our hands and seals the day and year first above written.</p> <p>[Signed,] W. L. Leach, l. a. }■</p> <p>[Signed,] Abraham Gotleib, ■{ l. s. ^</p> <p>In presence of E. C. Bow.</p> <p>Other facts, and the points of exception, are sufficiently- set forth in the opinion of the court.</p> <p>Verdict for the plaintiff; exceptions by the defendant.</p> <p>cited upon the question of variance, Sldnner v. Grant, 12 Vt. 462 ; Hutchinson v. Granger, IB Vt. 893 ; Mallory v. Leach, 35 Vt. 156 ; Hastings v. Lovering, 2 Pick. 222 ; Pass. Banhv. Goss et ai.,31 Vt. 321; Bruce v. Greenbanhs, 33 Vt. 226 ; West v. Emery, 17 Vt. 586 ; Wheeler v. Wheeloch, 33 Vt. 146 ; Ounningham v. Kimball, 7 Mass. 65 ; Vail v. Strong, 10 Vt, 462 ; Gross v. Richardson, 30 Vt. 641.</p>

This was an action to recover damages for injuries sustained by the plaintiff by reason of the insufficiency of a public highway in. tbe town of Barton.

Book Account. The auditor reported as follows, viz: “ That in 1858 and 1859 John L. Drury made a parol contract with the defendants whereby Drury was to ‘jigger’ out for the defendants a quantity of chair stock, and that soon after the agreement was made the plaintiff became associated with Drury in said contract.

This was an action of trespass for taking, one mowing machine and a pair of two year old steers, with a count in trover for the conversion of the same. Plea, the general issue, and trial by jury at the May Term, 1867, Barrett, J., presiding. The testimony in the case was as follows : The plaintiff was called as witness and testified as follows : I made a trade with Isaac Nelson Taggart for his farm, that he was upon, for the price of $1,225.

Assumpsit in a special count, and a count for money had and received. Plea, the general issue, and trial hy the court by consent of the parties, at the May Term, 1866, Barrett, J., presiding.

Assumpsit, in common count, for work, labor and materials — for money, and account stated. Plea, the general issue, and trial by court, by consent of parties, at the May Term, 1867, Barrett, J. presiding.

<p>This was an action for a breach of covenant. The declaration counted upon the covenants in a deed from the defendant to one Ephraim Littlefield, dated March 3d, 1851, and alleges subsequent conveyances of the premises by Littlefield to Baxter, February 8th, 1856; by Baxter to the plaintiff, March 13th, 1856; and by the plaintiff to Lucius Tyler, November 11th, 1856 ; that at the time of making each of said deeds, said premises were encumbered by a way, and right of way, in one William Steele ; that said Tyler, in attempting to assert and defend his rights to a full, quiet and peaceable enjoyment to said lands, was sued by said William Steele, and judgment was rendered against him in said suit, which he was compelled to pay ; that afterwards, said Tyler commenced an action at law for covenant broken against the plaintiff on his deed aforesaid, to recover his costs, trouble p,nd expense in defending said .suit, and for the money he was compelled to pay in satisfaction of the aforesaid judgment ; that the plaintiff caused the defendant to be vouched in to defend the said suit; that he disregarded said notice, and that the plaintiff defended the same at great expense, &c.</p> <p>To the declaration the defendant filed a general demurrer. At the December Term, 1867, Barrett, J., presiding, the court adjudged the declaration insufficient, and rendered judgment for the defendant, —to which the plaintiff excepted.</p> <p>'The covenant of warranty runs with the land, and vests in the assignees of the original covenantor’s grantee, and in the last purchaser in the chain of title.</p> <p>The breach first accrued in the time' of the last purchaser. Williams v. Wetherbee, 1 Aik. 233 ; Boyd v. Bartlett, 36 Vt. 9 ; Clark v. Gonroe’s Estate, 38 Vt. 469 ; 2 Green!. Ev. § 240 ; Sprague v. Baker, 17 Mass. 581; Norman v. Wells, 17 Wend. 136.</p> <p>The plaintiff can call upon any and all the grantors, prior to himself in the chain of title, and who stand in privity of estate with the defendant, the defendant inclusive, for indemnity, till he has obtained natisfaction for the breach of this covenant. 1 Aik. 233, supra; 1 Swift’s Dig. 367.</p> <p>The claim of William Steele having existed at the time of the defendant’s conveyance to Littlefield, and continuing to the date of Tyler’s deed, the breach may be regarded as continuing through the successive conveyances, resulting in the suits, Sjeele v. Tyler and Tyler v. Buss. 17 Mass. 586, supra; Boyd v. Bartlett, 36 Vt. 9 ; 2 Am. Law Reg. 268.</p> <p>The existence of Steele’s right of way, and the assertion of that right, and the judgments obtained by him against Tyler, are equivalent to eviction, or are in fact such. Rawle on Cov. 225, et seq.; Swasey v. Brooks, 34 Vt. 451 ; Norman v. Wells, 17 Wend. 159 ; 36 Vt. 9, supra; 38 Vt. 469, supra,</p> <p>This covenant to warrant and defend, applies as well to .easements as to any other species of estate. Rawle on Cov. 259, et seg. ; 30 Vt. 692 ; 34 Vt. 451.</p> <p>The demurrer to the declaration was properly sustained by the court.</p> <p>I. The declaration sets up the covenants that the defendant was sole owner against incumbrances, and to warrant and defend as contained in defendant’s deed, and concludes by alleging that the defendant “ hath not kept his covenants.”</p> <p>It is well settled that the covenants of seizin of right to convey, and against incumbrances, ar& personal covenants, and do not run with the land, or pass to the assignee.</p> <p>If not true, there is a breach of them as soon as the deed is made, and they become dioses in action not assignable. 4 Kent’s Com. 471, and cases cited ; Williams v. Wetherbee, 1 Aik. 233 ; Garfield v. Williams, 2 Vt. 327 ; Potter v. Taylor, 6 Vt. 676 ; Judevine v. Pennodc, 14 Vt. 438 ; Mitchell v. Warner, 5 Conn. 479, and cases cited in notes ; Swasey v. Brooks, 30 Vt. 692. .</p> <p>If the defendant was not “ sole' owner of the premises,” when sold, there was a breach of this covenant when the deed was executed. Slater v. Bawson, 1 Met. 450.</p> <p>The existence of a way, either public or private, over the lands of another, is nothing more than an incumbrance, and can be only a breach of the covenant against incumbrances, in case of sale and deed with usual covenants. Butler v. Gale, 27 Vt. 739 ; Kellogg v. Ingersol, 2 Mass. 97 ; Harlow v. Thomas, 13 Pick. 66 ; Pritchard v. Atkinson, 3 N. H. 335 ; Haynes v. Stevens, 11 N. H. 28 ; Hubbard v. Norton, 10 Conn. .421, 431 ; 4 Kent’s Com. 479 ; 2 Gree'nl. Ev. § 242. The plaintiff, in his declaration, only claims that the right of way in William Steele is an incumbrance. A public highway or a private right of way over lands, is but an easement on the land, and the soil and freehold remain in the owner for all purposes not inconsistent with the easement. Pomeroy v. Mills et al., 8 Vt. 279 ; Perley v. <7handler, 6 Mass. 454 ; Jackson v. Hathaway, 15 Johns. 447 ; Peck v. Smith, 1 Conn. 103, 135 ; also cases cited above.</p> <p>II. There is no covenant in the defendant’s deed, which runs with the land, except the general covenant of warranty. Can this action be maintained on this covenant? The covenant of warranty is-exclusively a covenant real, and takes the place of the ancient writ .of warrantia charta, under which, if the feoffee lost the Iqnd by title paramount, he had judgment against the warranter for other lands of equal value. 2 Bouvier Law Die. 642. ’</p> <p>It is a covenant which effects the title to the lands merely, and any claim or disturbance which does not effect the freehold, and which leaves the freehold in the grantee and his assigns, is not covered by this covenant. In order to a recovery under this covenant, there must be an actual eviction or ouster from the land, or what is tantamount to an eviction by title paramount existing at the time of the deed. 4 Kent’s Com. 471; 2 Greenl. Ev. § 244; Smith’s Law Cases, .128 ; Garfield v. Williams, 2 Yt. 327 ; Parks v. Bates, 12 Yt. 381 ; Pitkin v. Leavitt, 18 Vt. 379 ; Brown v. Taylor, 13 Vt. 631; Turner et al. v. Goodrich, 26 Yt. 707 ; Knapp v. Marlboro, 34 Yt. 235 ; Boyd v. Bartlett, 36 Yt. 9 ; Loomis v. Bedel, 11 N. H. 74; Mitchell v. Warner, 5 Conn. 497 ; Thayer v. Clemence, 22 Pick. 490.</p> <p>The very question involved in this suit has been decided in favor of our views, by the supreme court of Connecticut, in an elaborate and exhaustive opinion by Hosmer, Ch. J., in which the whole doctrine of covenants in deeds is reviewed and considered in the light of all the authorities upon the subject, both ancient and modern. Mitchell v. Warner, 5 Conn. 497, 515 ; vide also Peck v. Smith, 1 Conn. 103, 135.</p> <p>The same doctrine has been directly held in New York. Whit-heck v. Cook, 15 Johns. 482, 490 ; 4 Kent’s Com. 479 ; vide also Wheelock v. Thayer, 16 Pick. 68 ; Rawle on Cov. p. 63, 115.</p> <p>Our Statute of Limitation recognizes the same doctrine, and requires the action to be brought within eight years next after afinad decision against the title of the covenantor. Gen. Stat. p. 443, § 13,</p> <p>A right of way being a mere easement, ejectment could not be maintained for any interference or prevention of its use, and this being so, how can a man be ousted or ejected, as required in case of the breach of the covenant of general warranty ? 1 Chit. PI. 217 ; 3 Black. Com. 206.</p> <p>*• Neither Tyler nor the plaintiff were ever ousted or disturbed in their possession. Tyler shut up and deprived William Steele of his right of way, for which Steele brought suit, and recovered judgment.</p>

Assumpsit. Elea, the general issue, and trial by jury at the May Term, 1867, Barrett, J., presiding. The plaintiff gave in evidence to the jury a written contract of lease, not sealed, made the 26th day of February, 1862, and also gave evidence tending to show that the market value of sheep-increased during the year covered by the lease.

Bill in Chancery. The bill charges, that the orator, now of Rockingham, lived in Somerset in 1855, when his wife ran away with one Oliver Pike to Wisconsin, taking with her the orator’s infant son, Francis, aged about seven years.

Assumpsit to recover damages of the defendants as common carriers for neglecting to transport -certain property of the plaintiffs to its place of destination within a reasonable time.. Plea, the general issue, and trial by jury at the December Term, Addison county, 1866, Pierpoint, Ch. J., presiding.

This was an appeal from the judgment of the probate court, upon the report of the commissioners, upon the estate of James McDaniels. The case was, by consent of parties, referred, and was, at the September Term, Rutland county, 1866, Steele, J., presiding, heard upon general exceptions to the report of the referees. The court rendered judgment for the plaintiff upon the report. Exceptions by defendant.

Action on the case to recover for an injury done by. a ram. No defence was made by the defendant, Oakes — Spaulding, alone, defended. Trial by jury on the general issue, at the September Term, Chittenden County, Pierpoint, Ch. J., presiding.

Strong, which was tried in the county court upon an agreed case which is stated in full in the opinion of the court. The county court, at the December Term, 1865, Addison county, Everts, Asst. J., presiding, rendered judgment, pro forma, affirming said decree with costs. Exceptions by the appellants.

The case was tried by jury, at the September Term of the Rutland County Court, A. D. 1866, upon the issue joined upon the plea, tRat the instrument is not the last will and testament of the… Held: or even claimed, that jurors’ deposi- * tions may not be received to prove the misconduct of the parties or of persons acting in their behalf. Bitchie v. Holbrooke, 7 S. & R-. 458. III. 1. It is not essential that the tampering be done by the party himself, nor by his procurement.

Assumpsit, to recover on the instrument set forth in the syllabus above, in general and special counts. The special counts set forth the instrument and averred that it had been duly assigned and ordered to be paid to the plaintiffs ; there was no averment that demand had ever been made by the presentation of the instrument with a request for payment.

Ejectment for lands in Braintree. Plea, the general issue, and trial by jury at the January Term of the Orange county court, 1866, Steele, J., presiding. Held: such as in the relation of landlord and tenant, morgagor and mortgagee, &c., but does not apply to the relation of grantor and grantee. 2 Wash. Real.

' Appeal from a pro forma decree of the court, of chancery, ordered at the Rutland county court, March Term, 1867, Kellogg, Chancellor. The bill in this case was originally brought for a foreclosure of the first mortgage on the Rutland. & Washington Railroad. Answers and a cross-bill were filed, and voluminous testimony taken; and an appeal having been taken to the supreme court, a final decree for foreclosure, &c., in favor of the orators, was then ordered.

This was an action on the case for certain alleged fraudulent representations in regard to certain stock of the Vermiont Marble Company, sold by the defendant to the plaintiff, wherein the plaintiff sought to recover not only what he had paid for the stock, but also all the assessments thereon paid by him, and interest on all said sums. Plea, the general issue, and trial by jury at the March Term, 1364, Rutland county court, Kellogg, J., presiding.

* Appeal from a decree of the Court of Chancery, Addison county, June Term, 1866, Pierpoint, Chancellor, accepting the report of the masters to whom the case was referred, — from which both parties appealed. The bill and answer, the report of the masters, and the evidence in the case, are sufficiently set forth in the opinion of the court.

This was an action of trespass. It was tried on demurrer to the defendant’s plea, at the April Term, 1867, Pierpoint, Ch. J., presiding, and the court overruled the demurrer, and adjudged the plea sufficient and rendered judgment, pro forma, for defendant, — To which decision the plaintiff duly excepted.

This was a complaint against tlie respondent for a violation of one of the city ordinances. The respondent filed a motion to dismiss or quash. The court overruled the motion, — to which the defendant excepted. The defendant then demurred generally to the complaint, the court overruled the demurrer,' and adjudged the complaint sufficient, — to which the defendant excepted.

This case was a prosecution in the police court, before the recorder of the city of Burlington, against the respondent, as per complaint, August 2d, 1867. The respondent filed a motion to dismiss, which the court overruled. The respondent also filed a demurrer, which was likewise overruled. The respondent then plead not guilty, and the case was heard on an agreed statement of facts.

<p> Partnership. Arbitrament and Award. Contract. Evidence. </p> <p>The presenceof ore partner, who was a Frenchman, and understood English imperfectly, at, and participation to some extent in, a conversation between his co-partner and the defendant, concerning a matter in dispute between the plaintiff partnership and the defendant, which resulted in a submission by the co-partner and the defendant of the matter to arbitration, held not to be' conclusive of the Erenehman’s assent to the award, he not having understood that his co-partner agreed to submit, and having never assented thereto.</p> <p>A partner has po authority, by virtue of his relation as partner, to bind his co-partner by a submission of a copartnership matter to arbitration, so as to make the award in .pursuance of such, agreement binding on the firm.</p> <p>'The plaintiffs and the defendant having entered into a written contract, by which the plaintiffs were to cut and fit the stone for walls of a tunnel, at a specified price per foot, “ the face of the work that shows to be measured, and none else,” and there being a dispute as to the meaning of the words, “ face of the work,” ®ie plaintiffs claiming and giving evidence tending to prove they included ail the cut and dressed surface exposed-, both horizontal and perpendicular, the defendant giving evidence of the opposite character, and tending to show the words only meant the perpendicular fronts of the wails, it was held, that evidence was properly excluded as to what was said in the oral negotiations between the parties prior to the execution of the written contract as to how the measurement should be made, or wh^t face measurement meant.</p> <p>The plaintiffs having agreed to furnish tools, but having used the defendant’s tools, and given credit therefor, in their account, expecting to pay for their use, should be held to the credit they gave, though the defendant had not, until the commencement -of the suit, intended to claim it.</p>

Action on the ease against the defendant, for the neglect of his duty, as sheriff, in preserving and taking care of property which he had attached, so that it was not forthcoming at the proper time… Held: prima facie, liable if ho does not produce, upon execution, the property attached, yet the facts above stated excuses him, and this is not in conflict with the law in this state. Hubbéll v. Boot, 2 Allen, 185 ; Bridges v. Perry, 14 Vt. 262.

<p> Promissory Note. Pleading. Agreement to extend time of payment. </p> <p>In an action on a promissory note, payable on demand, tbe defendant set np, in bis plea, an agreement by a former owner to extend tire time of payment, and notice to the plaintiff. Held, that the replication, de injuria, is a sufficient general form of denial under the statute, (Gen. Stat. ch. 33, § 16,) upon general demurrer thereto. And would be sufficient on special demurrer.</p> <p>Although it did not appear in the plea, that the defendant was a party to the agreement, nor that the consideration moved from him, nor that the agreement was entered into for his benefit, yet the plea was held sufficient in this respect on general demurrer, as the law would imply that the agreement was made between the parties to the note at that time.</p> <p>The plea alleged, that the agreement was made " in consideration of certain valuable securities then placed in their,” (the owners’,) “ hands as collateral security for the payment of said note.” Held, that this was a sufficient consideration for the alleged agreement on general demurrer.</p>

<p>Deed. Beal Property. Reservation. Lease. Landlord and Tenant„</p> <p>Reservation of tlie use and occupancy for a stated period in a deed by the grantor, will not be determined either in whole or in part, if the grantor leases a portion of that which he has reserved, if the reservation is not explicitly personal in its terms.</p> <p>In construing reservations in deeds, the intent of the parties to be gathered from the nature of the subject matter, and the language used, must control.</p> <p>The words, " the right to use and occupy,” are equivalent to the right to the use and occupancy, and import a general right in the grantors to use and occupy, either by themselves or others, limited only by the implied legal duty to occupy in a prudent manner.</p> <p>A tenant has a right to occupy by himself, his agent, or assignee, unless restrained by express stipulations in the lease. It is not necessary that the word “ assigns” should be used to give this right.</p> <p>The language in a deed, “Reserving to ourselves the right to use and occupy the said granted premises for five years, if we choose to do so for that length of time from the date of this deed; but if we leave the possession and occupancy of said % premises before the expiration of said five years, then this reservation shall be at an end and determine, and the grantee, above named, shall have full possession thereof,” is not a limitation personal in its nature, but general, andjmports the right to occupy personally, or by tenants.</p>

This was an action upon covenants in a deed, commenced before a justice of the peace. The defendant moved the county court,‘that the action be dismissed, and for his costs, because said action was commenced before a justice óf the peace, and came to the county court on appeal, and was, at the time it was so commenced, and is now, without the jurisdiction of a justice of the peace to determine.

This was an action of assumpsit to recover against the defendant as second indorser to the plaintiff of three promissory notes, dated at Rockford, (Illinois,) July 19th, 1858, one for $2000., and two for $500. each, and all payable at Rockford three years from date, with interest at ten per cent, payable annually, executed by Paris Woolworth to the order of C. A. Huntington, and indorsed by C. A. Huntington, and then by the defendant.

Book Account. Judgment was rendered, pro forma, at the August Term, 1867, Steele, J., presiding, by request of the parties, for the plaintiff, for the Jarger sum reported by the auditor. Exceptions by the defendant.

Assumpsit to recover for money put into the hands of the defendant for buying butter for the plaintiff. The defendant pleaded the general issue, and an off-set, and gave notice of special matter of defense. Trial by jury, September Term, 1867, Wilson, J., presiding.

This was an action on Book, in which the auditor made and filed his report, to which report the defendant filed exceptions. The county court, at the April Adjourned Term, 1867, Wilson, J., presiding, rendered judgment, pro forma, for the. plaintiff to recover the amount reported by the auditor, to which judgment the defendant excepted. A motion to recommit was also filed on the part of the defendant.

Assumpsit in the common counts. Plea, thé general issue, and trial by the court, at the April Adjourned Term, 1867, Wilson, J., presiding. The plaintiff introduced as evidence in support of his declaration, a note, of which the following is a true copy: “ $40.00.

Writ op Error to reverse a judgment rendered in the county court, in favor of the defendant in error against the plaintiffs in error. The writ was made returnable to the supreme court, Rutland county, at the February Term, 1868.

' This was an action of debt on judgment, in favor of the plaintiff against the principal defendant, and was originally commenced before a justice of the peace, and, in* the same action, Daniel Francis was summoned as the trustee of the principal defendant.

This was an appeal from the commissioners’ disallowance of a claim in favor of Reuben R. Thrall against the estate of Abner Mead, who deceased in 1859. Declaration indebitatus assumpsit, common counts, special counts on .notes. ■ Action commenced prior to August 1st, 1863. ’ ' Plea, the general issue and statute of limitations, and joinder. Trial by jury, September Term, 1866, Steele, J., presiding.

This was an action of trover for a quantity of lumber, and was originally commenced before a justice of the peace, and it came to the county court on the appeal of the defendant. Plea, the general issue, and trial by the court at the March Term, I860, Kellogg, J., presiding, by the consent of the parties.

Petition to the supreme court to correct docket entries. The petition sets forth, among other things, that on the 19th day of December, 1855, the petitionee commenced, in the Rutland county court, an action of debt on judgment against the petitioner, and that the petitioner filed a declaration on book in offset in said suit; that an auditor was appointed to audit the accounts, who reported against him, and judgment was rendered by said county court against the petitioner,…

Indictment in one count alleging that the respondent, on the 9ih day of September, 1866, one horse of the value of three hundred dollars, one buggy wagon of the value of one hundred and fifty dollars, and one harness of the value of fifty dollars, of the goods and chattels of Daniel Whitcomb, feloniously did steal, take and carry axvay. Trial by jury, at the September Term, 1867, Ainsworth, Ast. J., presiding.

Ejectment t.o recover possession of a piece of land in Glastenbury. Plea, the general issue, and trial by jury, December Term, 1867, Próut, J., presiding. The plaintiff to show title in himself, introduced in evidence several deeds, certified copies of deeds, and other evidence, tracing his title from Benjamin Whipple, an original proprietor, down through successive grantees, to one Eliab Stone.

Book Account. The case was-commenced-before a justice of the peace, and came ito the county court on appeal of the defendant. Am auditor was appointed, who found for the plaintiff a balance of nine dollars and nineteen cents due him to balance books. The report then proceeds as follows: “I find in reference to account maiked (B.) that the item of debt and credit therein was an account properly belonging to the firm of Brown & Scott, and therefore disallow the same.

Tins ivas, an action of trespass, wherein the plaintiff claimed to recover for one pair of ox-bows, three chains, one ox-sled, two plows, one ox-wagon, one ox yoke, one shot gun. The defendant pleaded the general issue, and gave notice of a justification under a writ of execution in favor of one Stephen Boyd against the plaintiff. The case was tried by the court, by consent of parties, at the December Term, 1867, Prout, J., presiding.

Tms was an action of assumpsit, on a promissory note. Held: that the note declared upon was given upon a sufficient consideration; that the defendant was not induced to’ give it in consequence of any fraud or misrepresentation on the part of the plaintiff,.and that if said Stickles had the right to direct an application of the avails of said checks to the payment of said notes, that Stickles…

Action on the case to recover on a breach of warranty in the pur* chase of a quantity of blitter.

This was an action of assumpsit, containing the common counts, and a special count. Plea, general - issue. Trial by jury, April Term, 1867, Barrett, J., presiding. Upon the facts set forth in the opinion, the court directed the jury to return a verdict for the defendants, — to which the plaintiff excepted.

This was a Irial upon an indictment for an assault, being armed with a dangerous weapon, to wit, a loaded pistol, upon one Noyes Streeter, with intent to kill and murder. Plea, not guilty, and trial by jury, April Term, 1866, Barrett, J., presiding.

This was an action of trover for a watch. Plea, the general issue, and trial by jury, April Terra, 1867, Barrett, J., presiding. Upon the trial, the plaintiff’s evidence tended to show, that on the 18th day of December, 1861, he lost his watch at the store of Benj.

Tins was an action of general assumpsit. The plaintiff filed a specification, to which the defendant pleaded the general issue. Trial by court, April Term, 1867, Barrett, J., presiding. The plaintiff offered in evidence, a note dated January 1st, 1865, for $171.19, indorsed $80., March 26th, 1866. This note was conceded to be genuine, and it was also conceded that its amount, less the indorsement, was due at the commencement of this suit.

This was an appeal from tlie decree of tbe probate court accepting the report of commissioners disallowing a claim in behalf of the plaintiff. . The plaintiff claimed to recover the amount of a promissory note for four hundred dollars, which he claimed to have paid as an accommodation indorser for the intestate. Plea, the general issue, and trial by jury, April Term, 1867, Barrett, J., presiding.

This case was an appeal from the decision of the probate court for tbe district of Marlboro, refusing to assign the whole of the estate of Harlow Frost, deceased, to Eliza W. Frost, his widow, after paying the funeral charges and expenses of administration, the inventory of said estate amounting to less than three hundred dollars.

This is an action upon the common counts in assumpsit. Plea, the general issue and trial by jury, at the April Term, 1867, Barrett, J.', presiding.

Action on the case. Plea, general issue, and trial by jury at the September Term, 1867, Barrett, J., presiding. The plaintiff’s declaration contained two counts; the first count alleges the bailment of the mare in question, and a colt, for the purpose of being kept through the winter, and that the defendant drove and rode said mare, and so carelessly and immoderately used her, that said mare miscarried her foal, and became of little value to the plaintiff.

This is an action in trespass, with a count in trover, for three tons of hay. Held: and decided as matter of law, that the hay removed by the defendant was liable to Plimpton’s attachment, inasmuch as the case showed that the plaintiff had no yoke of oxen or steers, other than said pair of steer calves, on the day the attachment was made, and thereupon granted the motion of the defendant, and ordered said execution…

Assumpsit, in special and general counts, to recover a town bounty. Plea, general issue. Trial by court, by consent of parties, April Term, 1867, Barrett, J. presiding. The plaintiff gave in evidence a duly certified copy of the warning and record of a town meeting held on the 28th of November, 1868, adjourned to December 5th, 1863. Also, of a request and warning for, and record of, a town meeting held on the 2d day of January, A. D. 1864.

This was a petition to tlie Court of Chancery setting forth that a writ of injunction was duly issued restraining one Iienry A. Willard, and ail persons acting under him from removing from the possession of the petitioner a certain law library belonging to the late Hon. Wm.

Action op Assumpsit, to recover a town bounty, with general and special counts. Plea, general issue, and trial by j’ury, at the December Term, 1866, SiEELE, J., presiding. On the 18th day of July, 1864, the President called for 500,000 men; the quota assessed on the town of Albany, Vermont, was sixteen men, but as the town had furnished a surplus of five men there were but eleven men .actually due.

Petition eor Foreclosure, brought by Asa George against Samuel P. Woodward and Leander Foster. Held: and claimed that the effect of an assignment of the notes and mortgage first to become due, operated to give him a priority over the balance of the last mortgage, and prayed for a decree of foreclosure against Woodward, George and Bugbee, and that the court should reform the written contracts so as to make them conform to the intent…