Volume 41 — Vermont Reports

Trover for two oxen. Plea, tbe general issue. Trial by jury, April term, 1867, Barrett, J., presiding. The plaintiff proved the taking and value of the oxen, and .rested his case. The defendant was collector of taxes for the town of Westminster, and defended on the ground that said oxen were dis-trained and sold for taxes.

Replevin for one pair three years old steers, one pair brown, oxen, one pair yellow oxen, one pair red stags, one pair red oxen, one pair red and white bulls, one red and white cow, two red cows, one bay mare, one gray three years old colt, and one bay three years old colt. Plea, the general issue. Trial by jury, April term, 1867, Barrett, J., presiding. The plaintiffs were duly appointed administrators August 8, 1865. Bond died August 5,1865.

The case Marshall A. Lewis 8? Qo. v. James L. Loelte was an action of assumpsit commenced before a justice of the peace, and came to tbe county court by appeal, and was entered September term, 1885. 'Tbe plaintiffs were not named in tbeir writ except as Marshall A. Lewis & Go.

Action on the case against the defendant as an innkeeper. Plea, not guilty. Trial by jury, April term, 1867, Barrett, J., presiding. Before the trial the defendant conceded that he was an innkeeper. The plaintiff called as a witness Charles D. Read, who testified as follows: “The plaintiff is my son, and went with me to the defendant’s in November, 1865, for the purpose of attending a suit that the defendant had brought against me.

Trustee prooéss. The commissioner to whom the case was referred, reported as follows: “ From the disclosure of the trustee and the other evidence, I find the following facts: J. Edward Wiley, the principal defendant, is a son of John Wiley, and son-in-law of Solomon Wilson. Previous to 1858, J. Edward Wiley had been somewhat extensively engaged in farming and speculating in real estate, in the state of Illinois.

Assumpsit to recover on a promissory note. Plea, non assump-sit. The plaintiff gave in evidence a note dated July 13,1865, executed by the defendant to J. D. & H. Smith on that day, for §500, payable to them .or bearer on demand with interest. The -defendant testified that said note was given for liquor bought by 'him of the payees, which was used at the hotel kept by him at IFayetteville in said county, and that he had no authority to sell liquor.

Assumpsit to recover a town bounty. Plea, non assumpsit. Trial by tbe court by consent of tbe parties, May term, 1867, Barrett, J., presiding. Tbe case was submitted upon tbe following statement of facts agreed upon by tbe parties.

<p> Soldier’s Bounty. Desertion. Town Order. </p> <p>Deserting the service by a soldier before the end of the term of his enlistment, is not suck* failure of consideration as forfeits or defeats his right of action upon a town order for bounty, payable on demand, given him by the selectmen of tho town to the credit of which he enlisted, at the timo of enlistment, in pursuance of a vote of tho town.</p> <p>Tho consideration of the contract between the soldior and the town, was not that tho plaint- «* iff should porform three years’ service as a soldier in the United States army, but that he should enter into acontract with the United States to perform that servico, and be mustered in under that contract to the credit of the town.</p> <p>If tho town could on equitable grounds set up the defense of desertion at all, as the deser- - tion is not a breach of tho contract with the town, the town could avail itself of it only to the extent of the failure to perform the service; so that the plea in this case, which was to the whole declaration, was, in any view, bad.</p> <p>The statute of 1864 (p. 26, §3) does not aid the defendant town, as that can not be construed as intending to cut off a right of action already perfect when the act was passed, even if the legislature had power to do so.</p> <p>The replication in setting out the votes in pursuance of which the order was drawn, which wore not set out in the declaration, held to be no departure from the declaration on this; account.</p> <p>The replication held not obnoxious to the objection of duplicity on account of its setting forth, the votes entitling the plaintiff to tho bounty, and also alleging an assignment of the order for a valuable consideration, and that the suit is prosecuted for tho benefit of the as- - signee.</p>

Assumpsit upon the following promissory noto : “ Bochester, March 12, 1859. For valuó received. I promise to pay Minerva M. Cox or bearer six hundred dollars in four years or before, with interest annually. I. P. Matthews.” Plea, non assumpsit and notice of payment. Trial by the court by consent of the parties, May term, 1867, Barrett, J., presiding. Said note was given in evidence; also letters of administration, with a copy of the will of Minerva M. Cox annexed.

PetitioN for annulling the marriage of Jedediah N. Tilden, deceased, to Olive Goodrich, made by the administrator of the deceased, and entered in the supreme court for Windsor county, at the February term, 1868.

Trustee process. The action was general assumpsit. The return on the writ was as follows: “ STATE OF VERMONT, 1 At Bridgewater in said county,. Windsor county, ss. j on tbe 5th day of April, A. D. 1867,. by virtue of this writ I attached, as the property of the within named defendants, all the real estate in the town of Bridgewater, bounded north by Barnard, east by Woodstock, south by Plymouth,, and west by 'Sherburne.

Assumpsit. Tbe declaration, was in common form of counts in assumpsit. Pleas,- tbe general issue and pleas in offset. Trial by jury, May term, 1867, BARRETT, J., presiding.

S. Ward-mer, deceased. Tbe appellant pleaded several pleas in bar, to the second and -.third of which the appellees filed a general demurrer. At the .May term, 1867, Barrett, J., presiding, the court pro forma held the said second and third pleas sufficient and rendered judg-ement for the appellant, to which the appellees excepted. The said -pleas are set forth in the opinion of the court.

<p> Contract. Consideration. Fraud. Arbitrators. </p> <p>A court of law will not set aside a contract for inadequacy of consideration alone. The inadequacy of consideration may be such as to furnish evidence of fraud.</p> <p>But in this case there was no fraud either on the part of the plaintiff, or the arbitrators to* whom it was referred to decide upon what terms the parties should trade horses.</p>

Book account. The auditor to whom the case was referred. reported as follows, viz.: “ The plaintiff presented an account in which he charged to the defendant $78, for 39 days’ work at $2 per day. “The plaintiff on or about the 19th day of June, 1866, made a' contract to labor for the defendant for four months at $25 per month, then following, at the ordinary work performed upon the farm.

Judgment was rendered in this case at tbe May term, 1867, of the county court, and an execution issued July 15, 1867, against the goods, chattels and lands of the defendant, but not against bis body. It was returned nulla bona.

Complaint for bastardy; sworn to November 28,1865. Plea, not guilty. Trial by jury, May term, 1867, Barrett, J., presiding.

Booe account. At the hearing before the auditor, the plaintiff presented the following account against the defendant: “ Mr. Granville P. Spaulding, To Charles D. Brink, Dr. 1866. .To 72 cords of tan bark, at $8, $576 1866. Or. March 10. By cash, $550 $ 26.” The plaintiff claimed a balance of $26. The only controversy was as to the quantity of the bark delivered.

Thomas, and Ellen, their daughter, as paupers, from the town of Cavendish to the town of Troy. Plea, that the paupers were unduly removed, for that their last legal settlement-was not in the town of Troy. Trial by jury, May term, 1867, Baebett, J., presiding. On trial it appeared that the paupers and said Henry C. Thomas had not any settlement in this state, except as derived from Eras-tus Thomas, the father of said Henry 0.

Trespass for assault and battery on tlie person of Mary B.. Chamberlin, wife of Mansel Chamberlin, who at the time of said assault was the wife of Charles E. Gray, and was so at the time this suit was commenced. On the 14th day of August, 1865, the defendants filed the general issue and five special pleas in bar. On the 27th of January, 1866, the plaintiffs filed their replication thereto. At the December term, 1866, the case was set for trial, on calling the docket.

ACTION on book, originally brought before a justice of the peace. Tried on appeal in the county court at the May term, 1867, Barrett, J., presiding, upon an agreed statement of facts, and judgment rendered pro forma that the writ should abate, to which the plaintiff excepted. The facts are sufficiently stated in the opinion of the court.

.Trustee prooess, which was referred to a commissioner to take the disclosure of the trustee and other evidence and report, as provided by law. The commissioner found the following facts : “ Hiram D. Morey was elected first constable of the town of Thetford at the annual March meeting in 1865. He gave bonds and received and receipted for the rate-bill (and warrant) assessed on the list of 1865, and the town has ever since held and now holds that receipt.

Bill in chancery. Tbe facts set up in this bill, sufficiently appear in tbe opinion of tbe court. Tbe defendant filed a general demurrer, which, was pro forma sustained by Pbcic, Chancellor, at the December term, 1867, of the court of chancery, and the bill dismissed with costs, from which the orator appealed.

Trover for a mowing-machine. Plea, the general issue. Trial by the court, December term, 1867, Peok, J., presiding. The plaintiff claimed title to the machine by virtue of a written instrument, read in evidence, of which the following is a copy: • uTo ALL PERSONS WHOM IT MAY CONCERN.

Book acoount. Tbe plaintiff’s account consisted of a single item for furnishing wood to the defendants for the year 1868, at the price charged, $35. The defendants presented no account. In relation to the plaintiff’s account, the auditor found the following facts: “ The two years previous to 1863 the plaintiff had been engaged in the business of getting out last-blocks, and bad furnished wood to the defendants from the waste of said blocks.

Indictment for violation of sections 2 and 3 of chapter 81 of' the General Statutes, relating to peddlers.

Bill in chancery. The bill set forth that on or about the 10th day of September, 1841, the1 oratrix, Louisa Clark, married Tully A. Clark, her present husband, and ever since said marriage said Louisa and Tully A. have lived, and still do live, together as husband and wife, and have, now living, three lawful minor children; which was admitted in the answers of the defendants.

Ejectment for lot No. 8 of range 8 in Marshfield. Plea, tbe general issue. Trial by jury, March term, 1868, Peck, J., presiding. Yerdic't for the defendant. The writ was dated February 23,1867, and served February 28,1867. The plaintiff introduced a letter of administration on the estate of Henry H. Barrows, of the city of New York, dated February 22, 1867.

Beplevin for one bay marc.- Plea, the general issue', and notice of justification by the defendant, under -a rate-bill and warrant, as collector of school district No. 6 in'Woodbury, and the taking the property as the property of• Luke Daniels,-on tax against him. Trial by the court, March term, 1868, Peck, J., presiding. Judgment for the defendant for damages and costs and for return of the property.

Rutter and his family, paupers',1 made on the 22d óf February, 1866, ordering, them to remove from Cabot to Washington; Trial by the court,. September term, 1867, Peck, J.', presiding. An agreed statement of facts was read on trial, and a copy of record of the county court of Orange county; also a record of the warning out of John T. Rutter, and a record of the warning out of Mehitablc Rutter, his wife, in 1816.

Book account. Tried, on special report of tbe auditor, at tbe September term, 1867, Peck, J., presiding. Judgment for tbe plaintiff, according to tbe report. Exceptions by tbe defendants. Tbe auditor found a balance due tbe plaintiff, including interest, of $22.30, subject to tbe opinion of tbe court upon tbe facts reported, which are fully set forth in tbe opinion.

Assumpsit for work and labor. Plea, the general issue, and'; notice of payment, and offset of money had and received. Trial, by the court, September term, 1867, Peck, S., presiding.

Tried by tbe court, upon a declaration in debt filed in the probate court for tbe district of Washington, at tbe March term, 1868, Peck, J., presiding. Tbe case was tried without any plea being filed, and the facts were agreed to, and are as follows. Tbe plaintiff brought her petition for divorce against her husband, Edward Nary, at the August term, 1866, of the supreme court for the county of Washington, held August 14.

Book acoount. Referred to an auditor, and heard by the court, upon his report, at the March term, 1868, Peck, J., presiding.

Assumpsit. Plea, tbe general issue. Trial by tbe court, March term, 1868, Peck, J., presiding. Tbe plaintiff claimed to recover a bounty for enlisting and being mustered into the United States volunteer service to tbe credit of Eden, and serving under that enlistment in tbe late rebellion.

<p> Contract. Bounty. Enlistment. Reward. Assumpsit. Toionk. </p> <p>ITpon a vote to pay $300 to “ the first six men who shall enlist into the service of the United States to save the draft,” the first six to perfect their enlistments hy a muster into the service, are the six entitled to the benefit of the offer, even though others signed enlistment contracts before them.</p> <p>The words in the vote, “ to save the draft," have no foroe, no draft being at the time impending, and all enlistments to the credit of the town being equally calculated to save a draft.</p> <p>If the town erroneously supposed the draft was still pending, and decided it necessary to raise six men, and voted to pay them a bounty, they can not escape paying the men upon the ground that it turned out to be unnecessary.</p> <p>The Vote to pay the first six to enlist, was a general promise., and not limited to men at home or to men procured by the selectmen.</p> <p>The town authorities were not justified in deciding that men enlisted at home were the “first six,” until they had had time and had used proper effort to learn of enlistments in the field, and, there being soldiers from the town in the Gulf department, they should wait to hear from there.</p> <p>The plaintiff, being one of the first six to enlist, is entitled to recover, no fault being chargeable upon him by which the town was misled. The mere failure of the plaintiff to inform the town of his enlistment, is not such a fault, it not appearing but the town might have learned of it on inquiry at the office of the adjutant general, to whom, it is to be presumed, the enlistment was officially reported.</p> <p>Semble that the plaintiff, to avail himself of a general and public offer of a reward or bounty to the first six to do a particular act, need not prove that he became one of the six in reliance upon the offer. Probably he is not bound to show anything beyond the fact that he lias done all that the offer itself stipulates as the condition of the reward. However this may be, it is, in any view, enough if the act is done in expectation of the reward, although the party doing the act, has no precise knowledge of the terms of the offer, or even is ignorant of that offer or vote, upon which he is entitled to the reward.</p>

Assumpsit. Declaration in tbe common counts only. Pleas, tbe general issue, and pleas in offset. Trial by jury, December •term, 1867, Wilson, J., presiding. Tbe plaintiffs’ specification filed in tbe case, is as follows: “ Oct., 1865.

Ejectment. To the plaintiff’s writ the defendants pleaded in abatement. To the defendants’ plea the plaintiff demurred. Join-der on demurrer, and trial by the court, June term, 1868, Peck, J., presiding. Judgment pro forma, that the plea in abatement. is sufficient, that tbe writ abate and that the- defendants recover their costs. Exceptions by the plaintiff.

Trover. Plea, tbe general issue. Trial by jury, December term, 1865, WiLSON, J., presiding.

Assumpsit. Plea, the general issue. Trial by jury, December term, 1867, Steele, J., presiding. This action was brought to recover pay for twenty-two sheep which the plaintiff sold to one John S. Smith, whom the jury found by their verdict to have been the agent of the defendant in making the purchase.

-The county court, at the June term, 1867, Peor, J., presiding, affirmed the decree of the probate court, to which the plaintiffs excepted. The facts are fully stated in the opinion of the court. The selectmen have no power by drawing, nor the treasurer by acceptance of, an order payable otherwise than on demand, to bind the town. Gen. Sts., ch. 15, § 51, § 71. Neither can the town by vote do so. Gen. Sts., ch. 15, § 95.

Petition in chanoery. The petition, set forth that A. W.. Putnam and 0.

<p>Ejectment, in which the plaintiff claims to recover about five acres of lot No. 18 in the 8th range, being in the second division of the original right of James Matthews, Jr., in the town of Guildhall. Trial by jury, September term, 1867, Steele, J., presiding.</p> <p>The plaintiff claims title by virtue of a tax-sale made by Timothy Fairchild, collector of a special road-tax, which sale was made on the 17th day of March, 1840. To the validity -of tills sale the defendant objected, 1st, that it does not appear by the record, when the warrant to the collector, nor when the .certificate of the oath to the collector, was returned to the office -of the town clerk, and that the first certificate of the town clerk, ¡following the record of said warrant and oath, relates to the receipt and recording of the advertisement of the sale, and does not refer to the warrant nor the oath; 2d, that the list of unredeemed lands was never recorded, but some sheets of paper that purport to contain such a list, are inserted into said book, between pages 70 and 71 of said book. The title under said sale was acquired by Dr. John Dewey, and, he having deceased, the plaintiff acquired his title by a deed from Mary 0. Dewey, the executrix under his will. The deed, which is made a part of the case, purports to convey the land by virtue of a license from the probate court; but no license was shown, but the will of Dr. •John Dewey was read.</p> <p>The court decided that the tax-sale and said conveyance made ;a good title in the plaintiff, for the purposes of this trial, and, the jury having found a verdict for the plaintiff, the defendant excepted.</p> <p>The counsel for the plaintiff claiming that the verdict of the jury under the charge of the court, was decisive of the case, even if the plaintiff had no title to the land, the following was added to the bill of exceptions, by way of amendment, to show what questions were submitted.</p> <p>The defendant proved that he had been in possession of the land in dispute more than fifteen years, and no question was made but his possession had been open, exclusive and continuous for that period. Question was made whether the defendant’s possession had been adverse and under claim of title. The possession of the defendant was of the same character when the plaintiff took his deed, that it had been for more than fifteen years before ; so that if the jury found it was adverse then, it had been for the statutory period. The evidence as to prior possession on the part of the plaintiff’s grantor, was not such as to warrant the court in assuming that the plaintiff or his grantor either had, or had' not, possession before the defendant went into possession, and no • question as to prior possession was submitted to the jury. The • plaintiff’s testimony tended to show that the defendant admitted to him, after the death of Dr. Dewey, that “ he held the land urn- ■ der Dr. Dewey.” This the defendant’s testimony contradicted.. The plaintiff also relied on the testimony of one Emerson, a.- witr • ness introduced by the defendant, who stated, on cross-examine*-tion, as follows : “ Lot No. 18 was called the Dewey lot. I. worked on Hopkins’s lot (24) which joined 18, reaping for Hop- • kins. Dr. Dewey wanted I should inquire of Hopkins if some-of his clearing did not extend over upon No-; 18. I made the inquiry. Hopkins said the clearing was on 24. I said, isn’t some of it on 18 ? He said, ‘ No; not a particle of it. If it is, I do n’t claim it.’ I told Dewey what Hopkins told me; that he did n’t claim 18.” This conversation occurred before the defendant had. occupied the land fifteen years. It appeared that the defendant had cleared over his true line upon lot No. 18, though the plaintiff’s evidence tended to show that he supposed the whole clearing was on 24. That portion of the clearing .which is on 18, is the land in controversy in this case. The plaintiff claimed that the jury might infer from what was said, and the circumstances under-vwMch it was said, that Hopkins understood that Emerson, in mak:ing tbis inquiry, was acting for Dr. Dewey, and that what he (Hopkins) replied was in substance a message to Dewey. There was no evidence of anything further being afterward said between Dewey and Hopkins about this clearing.</p> <p>The court told the jury that they .should render their verdict for rthe plaintiff, if they found that'Hopkins admitted that he held the .land under Dewey, and were satisfied from the admission, that he really did. The court also told the jury that, even if they did .not find for the plaintiff on that point, still, if they found that what .Hopkins said to Emerson was intended by Hopkins as a message to Dewey, and it was so communicated to Dewey, Hopkins, without revoking it or saying anything further to Dewey, would not be at .liberty to claim title to the land, and, the court having already ruled that the title to the land was in the plaintiff, Dewey’s grantee, ;unless it was in the defendant, the jury should render their verdict .for the plaintiff, if they found that Hopkins understood that Emerson .was acting for Dewey, in making the inquiry, and that his reply was to be communicated to Dewey as a message, and that it was subsequently so communicated, and never revoked. Unless .the jury found for the plaintiff on one of these two grounds, they .were told that their verdict should be for the defendant, for there '.were no other grounds upon which the defendant’s claim of title by possession was questioned.</p> <p>The jury rendered a general verdict for the plaintiff, as before . stated.</p> <p>The following is an abstract of the town clerk’s records in ¿respect to said vendue sale.</p> <p>“ Collection of a three-cent per acre road-tax granted in 1837, :and the sale of lands made in 1840.”</p> <p>* * * * * Here follow the notice of the com.mittee, dated March 17,1838, to which no objection was made, • and the certificate of the town clerk, that the papers containing .said advertisement were presented at his office, and a description of said papers as required by the statute, dated April 10, 1840, :to which no objection was made.</p> <p>***** Here follows a receipt of the road committee to. the collector for Ms bond, dated October 80,1838,* to which no objection was made.</p> <p>* * * * * Then follow the warrant and certificate of the oath.</p> <p>* * * * * Then follow the collector’s notice of the sale, dated December 30, 1839, and a certificate of the town clerk, that the papers containing the advertisement, were presented to him, with a description of said papers dated April 9, 1840, to which there was no objection made.</p> <p>* * * * * Then follows the record of the sale,. to which no objection was made.</p> <p>“ Received for record and recorded and examined April 7, 1840. Attest, John Dodge, Town Clerk.”</p> <p>By said will Dr. Dewey gave, substantially, all his estate, in- • eluding the premises in controversy, to Mrs. Dewey, and she was appointed executrix. The will was duly probated August 1, 1862. Mrs. Dewey’s deed to the plaintiff is sufficiently referred to and set forth in the opinion of the court.</p> <p>There were two questions submitted to the jury by the court: 1st,, whether the defendant admitted he held, and in fact did hold, the land under Dr. Dewey; 2d, whether the defendant intended the evidence detailed, that “ if any of his clearing on lot 24 extended on to lot 18, he did not claim it,” as a message to Dr. Dewey. And the verdict was general, and therefore does not show that it was rendered upon the ground that the defendant was a tenant to Dewey, or in possession under his title. The evidence upon which the second question arises, tended to show a mere notice to Dr. Dewey that the defendant laid no claim to lot 18, and has no tendency whatever to show a tenancy of the defendant to Dewey, or that his possession was under his title, but. distinctly shows that he was not in possession as a tenant to Dr. Dewey, or under his title. And if the verdict of the jury was upon this question, then the defendant is not estopped to question the plaintiff’s title. And, upon this point, the affirmative is upon the plaintiff to support the estoppel he sets up. The cases in this state, where a party has been estopped from disputing the title of an adverse party, are all cases' in which the possession was under a tenancy, or in subjection to that title. Brayt., 150 ; 1 Aik., 306; 1 Vt., 80 ; 7 Vt., 12 ; 8 Vt., 445; 9 Vt., 37; 10 Vt., 220, 593; 11 Vt., 323, 632; 16 Vt., 616 ; 17 Vt., 297; 18 Vt., 600 ; 19 Vt., 156. The plaintiff has not the title of Ur. Dewey, as the executrix of Dewey, who made the conveyance to the plaintiff, had no license from the probate court to sell the real estate of the deceased, which is required by our statute in order to pass that title. Gen. Sts., ch. 52, § 39. And, therefore, the defendant is not estopped to question the title of the plaintiff. The tax upon which the sale was made, under which the plaintiff claims to derive title, was assessed by the legislature in 1837. Acts of 1837, p. 80, No. 34. And the sale was made under the provisions of an act passed November 11,1807. Slade’s Sts., p. 665.</p> <p>The first objection made to the sale, -is that this provision of the statute has not been complied with. The only certificate of the town clerk which can have any reference to the receipt and record of the collector’s warrant and the certificate of the oath, is that at the end of the record, on page 71, made April 7,1840. This certificate, we claim, is not sufficient to show a compliance with the statute. It should distinctly appear by the certificate, that the original warrant and certificate of the oath from which the record is made, were presented at his office. Carpenter v. Sawyer, 17 Vt., 121. The words of both certificates in the record, directly exclude the idea.thatthey have any reference to the warrant or certificate of the oath.</p> <p>The second objection to the sale is that the same section requires that the list of lands not redeemed shall be recorded within thirty days after the expiration of the time for redemptions. In this sale, the list of lands not redeemed is tied into the record-book with a string. That, certainly, is not making a record. As to what constitutes a récord, see Ferguson v. Harwood, 7 Cranch, 408; Strimpfler v. Roberts, 18 Pa., 283 ; Meserve v. Hides, 4 Foster, 295; Stone v. Sprague, lb., 309; Pawlet v. Sandgate, 17 Vt., 619; Ellsworth v. Learned, 21 Vt., 585; Sawyer et al. v. Adams, 8 Vt., 172.</p> <p>The third exception taken by the defendant, is that there was no license shown from the probate court to Mrs. Dewey, executrix of Dr. Dewey, to sell real estate, as required by the statute before cited, and the provisions of that statute show that the granting of such a license is a judicial proceeding that must be had before the probate court, in order to give an executor or administrator the authority to dispose of the real estate of the deceased. Adams v. Morrison, 4 N. H., 166 ; Qlapp, admr., v. Beardsley, 1 Aik., 168.</p> <p>The will of Dr. Dewey gives all his estate to Mrs. Dewey, and her deed to the plaintiff recites a license, and covenants to warrant and defend against all persons; and the plaintiff may claim that she would be estopped by her deed from questioning the title of the plaintiff. The defendant does not question that position, so far as it extends to Mrs. Dewey, but says that he can not be es-topped by her acts. Weidmdn et al. v. Kohr, 4 S. & R., 178 ; Braintree v. Eingham, 17 Mass., 431; Worcester v. Green, 2 Pick., 425 ; Langer v. Felton, 1 Rawle, 141; Griggs v. Smith, 7 .Halst., 22.</p> <p>The plaintiff’s title was good as against a person having no .title, and that was as far as the court below held in respect to the title.</p> <p>The court instructed the jury that, in order to find for the plaintiff,.they must either find that Hopkins admitted that he held the land under Dewey, in such a way as to satisfy the jury that he really did so hold it, or that Hopkins understood Emerson was acting for Dewey, in making the inquiry, and that his reply was to be, and actually was communicated to Dewey, and was never revoked.</p> <p>Those were the only questions left to the finding of the jury, and to the instructions submitting them no exceptions were taken, and the finding of the jury in favor of the plaintiff upon either, was conclusive of the whole case.</p> <p>If the jury found for the plaintiff on the first question, the defendant could not set up Ms title against Ms landlord, for Ms relation to Dewey would be only that of tenant. Tuttle v. Reynolds, 1 Yt., 80 ; Gtreeno v. Munson- et al., 9 Yt.,' 87 ‘,- Rvpley y. Tale, 18 Yt., 220, are in a long line of cases announcing tbis doctrine.</p> <p>If the jury found for the plaintiff on the second question, the defendant -would be estopped from setting up a title in himself. After a possession has ripened into a title, we concede, the possessor could not reconvey it by parol, but, before that occurs, Ms declarations and messages to the true owner fix the character of his possession, and put the true owner at rest. But the verdict being general, the inference is that all the issues were found in favor of the party for whom the verdict was rendered. White, admr., v. Simonds, Oonant § Oo., 33 Yt., 178.</p> <p>The objections to the validity of the vendue sale are not well founded.</p>

Trespass for cutting timber and wood on lot No. 53 of division 2 in the town of Brunswick. Plea, not guilty. Trial by jury, September term, 1865, Poland, C. J., presiding. Held: had occupied said lot adversely for a continuous period of more than fifteen years before the survey and entry by Johnson for the plaintiff in 1854.

ACTION on the case for damages sustained by the plaintiff on a. highway in the town of Concord. Plea, the general issue. Trial by jury, September term, 1867, Steele, J., presiding. The following are the facts which the plaintiff’s evidence tended, to establish.

Aotion on tbe case for the recovery of damages for personal injuries received by the plaintiff while being carried on the defendants’ passenger train, at a place a few miles west of Bromp-ton in Canada. Trial by jury, September term, 1867, Steele,,. J., presiding. .

Assumpsit for money bad and received. Plea, tbe general issue, and notice of payment and satisfaction. Trial by jury, September term, 1867, Steele, J., presiding. On tbe lltb day of August, 1864, tbe plaintiff lent tbe defendant one hundred dollars in cash, to be paid in one week. Tbe plaintiff testified that something was said by tbe defendant at tbe time about Preston May’s paying him.

TroveR. Plea, the general issue. Trial by jury, March term, 1868, Steele, J., presiding. The factsare fully stated, in the opinion of the court.

Ejectment to recover a parcel of land, in Lunenburgh. Plea, the general issue. The case was tried at the March term, 1868, Steele, J., presiding. All the facts are stated in the opinion of the court.

Action of covenant. Tried by the court, upon an agreed statement of facts, at the September term, 1867, Steele, J., presiding; The court rendered judgment for the defendant to recover his costs, to which the plaintiff excepted. The facts agreed upon are as follows: “ On the third day of June, 1859, John Dewey gave to Albion J. Dunn a writing, of which a copy is annexed.

Trespass, in. which one O. S. Burke was the prochein ami, and also recognized for costs in the writ. The defendant filed a plea. in abatement on the ground that the writ was sued out in the name of 0. S. Burke, as the next friend of said James Duffy, and at the time of suing out said writ the same 0. S. Burke recognized as surety for costs of prosecution in said suit. The defendant also filed a motion to dismiss, for the same cause.

Assumpsit. Plea, the general issue. Trial by jury, December term, 1867, Steele, J., presiding.

<p>Ejeotment to recover possession of certain premises in Peacham. The plaintiff alleged in her declaration, that on the 15th day of May, 1864, she was well seized of the premises described, in her own right in fee, and so continued thereof possessed until the 17th day of May, 1864, when the defendant, without law or right, and contrary to the will of the plaintiff, entered, and expelled the plaintiff, and that he ever since had képt out, and still did keep out, the plaintiff, etc. Plea, the general issue. Trial by the court, December term, 1867, Steele, J., presiding.</p> <p>The plaintiff was the widow of Guy Chamberlin deceased, intestate, who was in possession of the premises at his decease. No probate proceedings were had on the estate. Said premises constituted the homestead of the plaintiff’s husband.</p> <p>The plaintiff remained on the place some months after the decease of her husband, her daughter living with her. The plaintiff then went to Bradford, on a visit to her other daughter, who lived there, leaving her household furniture, and the daughter who had lived with her, who was over twenty-one years of age and unmarried, in the care of her house. After staying in Bradford about two years, the plaintiff returned to said homestead, and found that the daughter she had left had married the defendant, and they (the daughter and her husband) were living on said premises; and they have resided there ever since. The plaintiff went and lived with them for some time, and then, without having any difficulty, went away. •</p> <p>The plaintiff never made any lease of said premises to the defendant, and never gave to him, nor. any one for him, permission in terms to take and keep possession thereof, nor had any talk about it in any way, nor objected to his occupying the place.</p> <p>There was evidence showing that the plaintiff’s brother, at the request of the plaintiff, made an effort to make some arrangement with the defendant, by which he should pay the plaintiff for the use of said premises or leave them. This brother made no demand of the premises, and did not notify the defendant to leave. As soon as the conversation opened, the defendant declined any conversation, and told him he had better send a lawyer.. No demand was made of the premises, unless this constituted one.</p> <p>The defendant never claimed to own the premises, nor refused to give them up, nor had any dispute or trouble with the plaintiff* but expected and was willing the plaintiff should live with him.,</p> <p>Upon these facts, the court rendered judgment for the defendant, to which the plaintiff excepted.</p>

Assumpsit to recover for non-delivery of lumber. Plea, the general issue. Trial by jury, June term, 1868, Steele, J., presiding. Verdict for the defendant. Exceptions by the plaintiff to the instructions of the court to the jury. The action was founded upon a contract in writing, which, with all the other facts stated in the bill of exceptions, is set forth in full in the opinion of the court.

Book: acoount. Heard on the report of the auditor, at tbe June term, 1867, Steele, J., presiding. The court decided that items 1, 2 and 3 of the defendant’s account should be disallowed, and rendered judgment for the plaintiff, on the report, for the sum of $40.56 and interest from January 1,1864; to which the defendant excepted. Item 1 was a silk dress ; item 2, a sack ; item 3, a shawl.

Trespass for taking certain personal property. Plea, tbe general issue, and notice that the defendant would justify as having distrained and sold the property upon a legal tax in school district No. 23 in Danville, by virtue of a rate-bill and warrant to him directed as collector of said district. Trial by the court, December term, 1867, Steele, J., presiding. Judgment for the defendant. Exceptions by the plaintiff.

Assumpsit. Heard on. demurrer to the declaration, at the December term, 1867, Steele, J., .presiding. Demurrer overruled. Declaration adjudged sufficient, and judgment rendered for the plaintiff. Exceptions by the defendant to the ruling of the court.

ActioN on the case. Heard on demurrer to the defendant’s plea in bar, at the June term, 1868, Steele, J., presiding. Plea held insufficient, and judgment rendered for the plaintiff. Exceptions by tbo defendant.

Motion to quash an order of removal. Tried at the June term, 1868, Steele, J., presiding. Judgment, that the proceedings be quashed. Held: because the defendants say the said order of removal is double, and embraces in the same and one order of removal two persons, to wit, the said Wealthy Goodall and Ivory H. Goodall, Jr.; which was irregular and unlawful. “ Wherefore, inasmuch as the said order of removal embraces two persons, and not of the same family, but standing…

Aotion for a bounty. Plea, tbe general issue. Trial by jury, June term, 1868, Steele, J., presiding. Verdict, by order of tbe court, for the defendants for their costs. Exceptions by the plaintiff. The plaintiff enlisted November 20, 1863, in company B of the 11th Vermont regiment, and served until he was honorably discharged. He applied upon the defendants’ quota under the president’s call of October 17,1863.

Teespass for assault and battery. Plea, tbe general issue, and notice of justification. Trial by jury, June term, 1868, Steele, J., presiding. The testimony of the plaintiff tended to show that C. H. Eaton put a writ into the plaintiff’s hands against S. C. Eatom and the defendants, and directed him to attach a certain black stallion then in the possession of the defendant Eairman in the town of Wolcott in Lamoille county, as the property of the defendants in such suit.

Assumpsit to collect an account ol sixty-three dollars. Plea, the general issue, and notice of settlement and release. Trial by the court, at the December term, 186T, Steele, J., presiding. The original indebtedness was conceded.

Covenant. Tbe defendant filed a motion to dismiss. Judgment pro forma that the action be dismissed, June term, 1868, Steele, J., presiding. Exceptions by tbe plaintiff.

Assumpsit, to recover wages for teaching school. Pléá, the general issue and notice. Trial by jury, June term, 1868, Steele, J., presiding. . At the close of a religious meeting in Granby, on the evening of November 13, 1866, the defendants’ prudential committee engaged the plaintiff to teach the defendants’ winter school for twelve weeks at four dollars per week and board. The plaintiff resided in Burke and was intending to go home in a few days.

BOOK account. Ah appeal having been taken from the decision of the commissioners upon the' plaintiff’s claim against the estate of Ira Kittredge, the plaintiff filed in the county court a declaration on book. Judgment to account was rendered and the case referred to an auditor, who reported a balance due the plaintiff to balance book accounts between the parties, subject to questions of law raised by the parties.

Trespass. Plea, the general issue and notice. Trial by jury, December term, 1867, Steele, J., presiding. Verdict for the . plaintiff. Exceptions by the defendant. On trial the defendants offered in evidence the deposition of Sylvina Annis, to which the plaintiff objected because it did not appear that the deponent swore to it, and because the cause of its being taken was insufficient.

<p>Action on the case for waste alleged to have been committed by the defendant on premises occupied by her as tenant in dower, as the widow of Stewart Harvey first, deceased. Plea, the general issue. Trial by jury, June term, 1868, Steele, J.,. presiding. The plaintiff is an heir of said Stewart Harvey, and owner of one-seventh of the remainder or reversion of said dower.</p> <p>On trial it was claimed by the plaintiff, and his testimony tended to show, that the buildings were greatly depreciated in value for want of necessary repairs; that the defendant had permitted a valuable muck-bed to be dug up and carried away; and the defendant had from year to year, for the space of seven or eight years, allowed one D. Harvey to cut and draw away the forage growing-on said premises, and for want of proper manuring and cultivation they had become unproductive and comparatively valueless. The-plaintiff claimed that these facts constituted waste under th& statute.</p> <p>The defendant’s evidence tended to prove that the premises had been kept in such repair and condition that, if the house should be repainted, the premises as a whole would be in a better condition than when they were assigned to the defendant.</p> <p>The court found as a matter of fact that the buildings and fences were, except in the matter of paint, in as good repair as it would be profitable or reasonable to keep buildings and fences upon such a place, and of such age, and that the defendant had from time to time made repairs and improvements, and rebuilt portions of the fence, but that owing to high prices of nails, lumber, paints and oils, and labor, she had deferred making some repairs until these things should be cheaper; and the court found that the delay was reasonable, and that the defendant has, in relation to the buildings, fences, and lands, conducted as a prudent man would with respect to the same, if it had been his own absolutely, and that in fact no waste had been permitted or committed. The land is not in as high a state of cultivation as it was eight years ago, and the buildings have unavoidably decayed. Some hay has been drawn from the land, and some manure drawn back, by her son Duncan Harvey, but more has been drawn away than back. The property was valued and appraised, when assigned to the widow, at from $600 to $700, and consists of an old story and one-half house, out-buildings, and three acres of land. The court decided as a matter of law that it was not .necessarily waste, that the land was not kept by the widow in as high a state of cultivation as when assigned to her; or that she sold the hay from the land; or that she allowed her son, a brother of the plaintiff, to drive and draw loads across it; and that an action would not lie for a want of repair, until the tenant in possession had had a reasonable opportunity to remedy it; and that if the want of repair was causing no immediate injury, the tenant in possession might pay a reasonable regard to the very high price of materials, and labor, and wait a reasonable time for prices to become re: duced to the ordinary level. The court was satisfied that the muck bed was of some value, but that it was not of sufficient value so that its removal has been of any material damage to the place. It was not entirely removed, and is so situated that it will soon fill again.</p> <p>The court rendered judgment for the defendant to recover her costs. Exceptions by the plaintiff.</p>

'Trespass for a horse, wagon and harness. Plea, the general issue. Trial by jury, June term, 1868, Steele, J., presiding. Verdict for the defendant.

Assumpsit. Pica, tbe general issue. Trial by jury, June term, 1867, Steele, J., presiding. On trial it appeared that the plaintiff’s claim was for one half the profits which accrued from the purchase and sale of a farm, stock and produce.

Assumpsit. The declaration contained only the general counts. Plea, the general issue. Trial by jury, June term, 1868, Orleans county, Steele, J., presiding. Held: and the plaintiff excepted. The plaintiff under this ruling of the court became nonsuit.

Bill in Chanoery. The orator alleged in his bill tliat Benj.

Astumpsit, beard upon report of referee and commissioner, June term, 1868, Caledonia county, Steele, J.,. presiding. The court rendered judgment, pro forma, that the principal defendant, Stearns, is liable for the $414.22, mentioned in the report of referee, and interest. Judgment that G. H. and J. M. Weeks, trustees, be discharged with their cost, and that the claimant, Jacob Evans, hold the funds in his hands.

General Assumpsit in tbe common counts, for work and labor, money bad and received, money lent, money paid, etc. Plea, tbe general issue, and trial by jury, April term, 1867, Chittenden county, Pierpoint, C. J., presiding.

Assumpsit, to recover town bounty. Plea, the general issue. Trial by the court, May term; 1867, Windsor county, BARRETT, J., presiding.

Case, for injury received by reason of alleged insufficiency of a highway. Plea, the general issue. Trial by jury, May term, 1867, Windsor County, Barrett, J., presiding.

Trespass on tbe case for injuries alleged to have been sustained, by tbe plaintiff’s wife, by reason of defects and insufficiencies in. a certain highway in said town of Richmond, which tbe defendants were bound to repair. Plea, tbe general issue. Trial by jury, in Chittenden county, Pierpoint, C. J., presiding.

ACTION on the case, for an injury sustained by tbe plaintiff by reason of the insufficiency of a highway in the town of Corinth. Plea, the general issue. Trial by jury, December term, 1867, Orange county, Peck, J., presiding. Verdict for the plaintiff.

It appeared that said Jesse died intestate, March 17,1865, and his widow, Ruth, died on the 26th of the same month, and before any proceedings had been taken in the probate court for the settlement of the estate of Jesse. Jesse diecj/Aezed of a parcel of real estate in Middlesex, in said county, on which was a dwelling-house and out-buildings, and the same were kept and used by himself and family as a homestead at the time of his decease, and were of the value of about 11000.

General Assumpsit. The defendant pleaded the general issue and statute of limitations. The plaintiff replied to the special plea that the cause of action did accrue within six years. The writ is dated September 29, 1866, and was served October 21, 1866. Trial by the court, August term, Caledonia county, 1868, Steele, J., presiding. .

Trover for a one liorse wagon. Plea, the general issue. Trial by jury, December term, Orleans county, 1866, Peck, J., presiding. Held: or the means by which the possession was acquired. Humphries v. McCraw, 4 Eng. (Ark)., 91, is a case every feature of which resembles this case. And in Smith's admr. v. Betty, 11 Grattan (Va.), 752, the court exclud edthe sayings of the vendor to impeach the good faith of the sale. Alexander v. Mahon, 11 Johns.

Ejeotment. Plea, the general issue. Trial by jury, September term, 1866, Rutland county, Steele, J., presiding. Verdict for the plaintiff. The controversy was about the division line between the plaintiff’s farm and the farm north of it owned by the defendant. Both farms have been occupied since before 1819. Both parties derive title from the same source.

Trespass and Trover to recover the value of a horse. Trial by jury, June term, 1868, Caledonia county, Steele, J., presiding. Verdict for the defendant. Exceptions by the plaintiff. The defendant admitted the taking and conversion of said' horse, but claimed to be justified because he distrained it by vir-' tue of tax-bills and warrants put into his hands as collector of school district No. 10, in the town of Waterford, and as collector of highway taxes of said town.

Bill in Chancery. The bill alleged that David W. Cowdery on the 26th of April, 1856, was indebted to Lyman Benson in the sum of $780, specified in three promissory notes, each dated April 26, 1856, payable one in six, one in twelve and one in eighteen months from date, with interest annually ; that in order to secure the payment of the same said Cowdery and his wife, Clarissa Cowdery, on said 26th of April, mortgaged certain lands in Roy-alton to said Benson ; that said…

Complaint by the grand juror of the city of Burlington against the respondent for being a manufacturer of intoxicating liquor in said city. Plea, not guilty. Trial by the court. The evidence on both sides showed that the respondent carried on a brewery in said city of Burlington, and that therein he was engaged in the manufacture of beer.

Complaint against the respondent for the third offense under section 9 of chapter 94 of the General Statutes relative to the traffic in intoxicating drinks. Plea, not guilty. Trial by the court, October 1867, David Heed, Becorder.

General assumpsit. Under a standing rule of court, and on-motion of tbe defendant, made at a previous term, the plaintiff filed a specification of his claims, relied upon in this action, containing the following items only: “1864. T.o cash, two hundred and ninety-five dollars. . .$295.0® May 28. To interest on same to April-10, 1866. 40.41 1335.41” Trial by jury, on the general issue, under that specification, aft the September term, 1867, Pierpoint, C. J., presiding.

On the 19th of March, 1864, the parties made a verbal contract by which the defendant agreed to furnish the plaintiff, on the 1st day of April next following, or within a short time thereafter, a cow for the use of the plaintiff, or forty dollars in money with which to purchase a cow, and that the plaintiff was to have the use of said cow for the period of one year from said 1st day of April, and that the plaintiff, at the end of the year, was to have the privilege of…

This was originally an action on the case in two counts brought by Morse against Brainerd and others, Trustees of the Vermont Central and Vermont & Canada Railroads, as common carriers, for damages sustained by said Morse on a car-load of cattle shipped, as will appear from the opinion of the court.

Trustee Prooess. The commissioner, appointed to take the-disclosure of tbe trustee and report the facts, reported “ that said Stephen Hurst duly enlisted as a volunteer, in and for the town of St. Albans, and to make up the required quota of said town, in tho early part of the rebellion, was regularly mustered into the service and army of the United States, in which he remained doing duty during the time for which he enlisted, and at the end of said time he was duly and…

<p> Wagering Contract. Penal Statute. Conflict of Laws. </p> <p>If by the law of the place where a wagering contract is made and executed the losing party may maintain an action for the money paid, the action is transitory and may be sustained in any forum which obtains jurisdiction of the parties. On the other hand, a right of action for a penalty is local in its nature.</p>

This was a trial upon an indictment containing three counts: tho first, charging an assault upon one John Moss, with intent to Mil; the second, a common assault and battery ; and the third, charging a breach of the peace.

Action on the case. Declaration in two counts. Plea, the general issue. Trial by jury, September term, 1868, Wilson, J.., presiding. .

Action for false imprisonment. The defendant pleaded the general issue, and several special pleas, justifying the imprisonment by virtue of a writ. Trial by jury, September term, 1868, Wilson, J., presiding.

Petition to the supreme court for a writ' of certiorari. The petition set forth the' proceedings in detail which resulted in widening a certain street in the village of St. Albans, pursuant to section 41 of chapter 24 of the General Statutes, et seq., by which sit portion of land belonging to the estate of Henry Seymour was appropriated for that purpose; that the trustees of said village, to whom the petition to widen said street was addressed, notified Martin A. Seymour,…

<p>This was a trial upon an information containing four counts, charging the respondent with burglary and larceny. Plea, not guilty. Trial by jury, at-tlie September term, 1868, Wilson, J., presiding.</p> <p>The evidence showed the breaking and entering to have been in fact done by a boy about sixteen years old and a girl about thirteen years old. children of the respondent; that the respondent furnished them with false keys and other implements, and compelled them by threats of the most terrifying character to commit the act; he remaining at home, some over a mile distant from the store that was broken open. The boy was prosecuted at the April term, 1868, of the county court, and on his plea of guilty was sentenced to the reform school.</p> <p>For the respondent only one witness testified, and his testimony was, “ I am acquainted with the respondent’s girl; she worked for me; I thought she earned one dollar per week; she appeared to have intelligence; think she could distinguish between right and wrong. Don’t think she ever attended sabbath school; don’t think her morals very good ; she had lived at home.”</p> <p>The respondent’s counsel requested the court to charge the jury as follows:</p> <p>1. “ That if the crimes charged were committed by two or more parties, one a girl of tender years, not of sufficient age to be responsible, and the other or others of sufficient age to be responsible, the presence of such a girl, even by direction of respondent, at the commission of a-crime at the distance of a mile or more from where the respondent was, can not be referred - to the -duress of the respondent, nor make him a principal in the offense, but is to be referred to the influence of the responsible person ■actually present committing the crime.</p> <p>2d. “ That a girl thirteen or fourteen years old, of good size, and ordinarily intelligent, who was capable of working away from home for wages, and who had done so, is of sufficient discretion to be responsible for what crimes she commits.”</p> <p>Of a charge, very minute in respect to all the evidence and all aspects of the case, it is necessary to present only the following parts :</p> <p>“ If the jury should find beyond a reasonable doubt that the respondent’s daughter entered the store of Ohellis & Hunt, with intent to take and steal the goods, or was present and did aid and assist in taking and stealing the goods of Ohellis & Hunt, and that she was at the time of entering the store, and taking or assisting in taking the goods, under the age of discretion, and that she had not sufficient discretion, to be responsible for the offense; and find that she, by the direction of the respondent, entered the store of Ohellis & Hunt and took the goods, or was present aiding and abetting the taking of the goods by the direction of the respondent, and that the respondent provided the keys and lantern, for his said children to gó .and enter the store and steal the goods, and that the respondent compelled his said daughter to commit the act, or to go to the store and assist in entering the store and taking the goods, by telling her she must steal or starve, or by threatening to shoot her if she did not go and steal the goods, and find that in all she did, as to entering the store and taking the goods, she acted without discretion and without responsibility, and by the direction of the respondent, and that k she acted through fear of loss of her life, if she did not obey her Í .father, the respondent, then the respondent will be guilty as prin-Tjeipal in the offense, even if he was at his own house when the I j store was broken into and the goods taken.”</p> <p>The court also told the jury that:</p> <p>“ If they should find the facts which the court told them would make the respondent a principal in either of the offenses charged, they would be prepared, when they came to render their verdict, to state tbe ground on wbicb they found Mm the principal in the offense, if they should so find.” The jury returned a verdict of -guilty, and then stated that “ they did not find that the respondent himself entered the store, or that he 'was personally present, aiding and abetting the commission of the offense, but that they did find that the respondent’s said daughter entered the store of Ohellis & Hunt and took their goods, that she was under the age of discretion and had not sufficient discretion tojbejesponsible for the act, tharsBS^enfei^'fEAsM^eTlSdrldoERlie goods, by~<fireetion oUthe'TWpNMentNthaitBN'respondent by said threats compelled^ his daughter to enter the store and take the goods, and ThSTshe committed the act through fear of loss of her life, occasioned by said threats, and the jury stated that they found all the facts, which the court told them as above would be necessary to make him principal in the offense, on this ground, and upon the facts so found they pronounced him guilty as principal in the offense.”</p> <p>Wherein the court omitted to charge as requested, the respondent excepted.</p> <p>The respondent was entitled to a charge in accordance with his second request. The evidence tended to show that the respondent’s daughter was thirteen years old, worked away from home, earned a dollar a week, had intelligence, and could distinguish right from wrong. These facts, as matters of law, show a sufficient degree of discretion to render the girl capable of crime. 1 Rus. on Crs. 2 and 8 ; 4 Bla. Com., 22, 23 ; Wh. C. L., 63.</p> <p>But if this is a mixed question of law and fact, the court should have instructed the jury as to what constitutes capacity for crime. But if any of the persons sent by the respondent to commit the crime were of discretion, then the respondent would be an accessory and not a principal. To hold otherwise would make the respondent both principal and accessory in the same crime. There can be no accessory without a principal, hence the necessity of the rule that one procuring an irresponsible agent to commit a crime should be held guilty as principal, to prevent a failure of justice. 1 Rus. on Or., 28; 1 Chit. C. L., 256 ; Nazzard v. Smith, 21 Yt., 123. In this case there was a responsible agent present.. Hence, Oessante ratione legis, cessat ipsa, lex. Tbe law will refer tbe duress to tbe present, instead of tbe absent, responsible party.</p> <p>There was no error in tbe charge of tbe .court. 1 Rus. on Or., 4 Am. ed., 14, 22. It does not affect tbe liability of the respondent, that either one or more persons, of sufficient discretion, cooperated with bis daughter in tbe commission of tbe crime, whether such persons were also incited by tbe respondent or not.</p>

Trespass in two counts, and two counts in trespass oil the case, for taking and selling filty shares of the capital stock of the First National Bank of St. Albans, the property of the plaintiff. Plea, the general issue, and notice that the defendant would justify the taking and sale at public auction, as collector of taxes for the town of St. Albans, in the year 1865. Trial by jury, September term, 1866, Steele, J., presiding.

Debt on bond. Plea, the general issue. Trial by jury, April term, 1867, Wilson, J., presiding. The plaintiff offered the bond declared on. Its execution was admitted by tlie defendant, and the bond was read to the jury without objection. The plaintiff introduced testimony tending to show several breaches of the bond between the date of it and the commencement of this suit. The defendant’s testimony tended to show the contrary.

This was a petition brought to set aside the judgment of a justice of the peace, in which petition it is alleged, among other things, that the petitioners were unjustly deprived of their day in court by accident and mistake. The petitioners introduced a certified copy of the record of the judgment, King v. Town of Fair-field, with the officer’s return on the original writ.

Trespass on tbe freehold. Plea, the general issue and notice. Trial by the court, September term, 1867, Wilson, J., presiding. It was conceded by the defendant that he entered upon the land and cut the grass thereon, in the year 1866, and converted it to his own use, which is the supposed trespass complained of.

The two cases by the above title upon the docket of the county court were heard together. This bill of exceptions applies to both. The actions were both instituted March 12, 1866, each to collect a promissory note. To each the defendant pleaded the general issue and the statute of limitations, and the plaintiff to the special plea replied a new promise. Trial by the court, at the August term, 1867, Steele, J., presiding.

Debt upon the judgment of the probate court, accepting and approving the report of the commissioners upon the plaintiff estate, by which report a balance of $81.16 was found due said estate from the defendant, December 11th, 1858.

Action for false warranty of certain sheep. Plea, the general issue. Trial by jury, at the June term, 1867, Piebpoint, C. J., presiding. Verdict for the plaintiff, $1,500.

Teespass, quare clausum fregit. The case was referred to a referee, who reported as follows: “ The plaintiffs and defendant are adjoining proprietors of land in the town of Leicester, and were on the 1st day of June, 1867,. the plaintiffs’ land lying south of the defendant’s. “ The plaintiffs (¿aim title to the locus in quo, by deed from E. H. Weeks, administrator of the estate of Gilbert Noyes deceased,, deed dated March 27,1860.

Assumpsit on three promissory notes, each signed by the defendant. Plea, the general issue. Trial by jury, at the March term, 1867, Kellogg, J., presiding.

Both actions were actions of trespass for an assault and battery, and were originally commenced before a justice of the peace and came to tbe county court on the appeal of the defendants in each case. At the September term, 1865, both cases were referred to the determination of a referee.

Assumpsit, which was referred, to a referee, who reported : “ That on 'the 80th day of June, 1864, the parties made an agreement by parol, by which the defendant agreed to sell to the plaintiff what new milk cheese he then had on hand, and unsold, amounting to 975 lbs., and the new milk cheese he should make thereafter during the season, and the plaintiff agreed to pay the defendant therefor at the rate of fifteen and a half cents per pound, and every twenty days thereafter…

This was a petition for the appointment of commissioners to lay out a highway within the boundaries of the incorporated village of Rutland, in the town of Rutland, the petitioners alleging that application had been made to the trustees of said village agreeably to the provisions of the act of incorporation of the village, as amended by the act approved November 9,1865, (Acts of 1865, No. 141, page 212, section 9,) to lay out and survey the said highway and that said trustees…

This was an action of trespass, quare clausum fregit. Plea, the general issue. Trial by jury, at the December term, 1867, Prout, J., presiding.

<p> Lndiciment. Criminal Pleading. Liquor Law. </p> <p>Certainty as to time and place is not always essential in descriptive averments whose office is merely to so qualify the object acted upon as to make it a proper subject of complaint. State v. Cook, 38 Vt., 431.</p> <p>But the substantive acts complained of must always be alleged with certainty as to time and place.</p> <p>A complaint for selling liquor, whioh avers that the sales wero made “ on or about the second day of January, A. D. 1867,” is bad on motion in arrest of judgment.</p>

Assumpsit, to recover town bounty, referred to a referee, who reported as follows: “ On tbe 5th of July, 1864, the town of Winhall, at a meeting called for that purpose, as set forth in a copy of the record of the proceedings thereof, hereunto annexed, authorized Richard Bond to enlist soldiers under the then recent call of the government, to fill the quota of Winhall, whenever the selectmen of that town, or a majority of them, should become satisfied that men sufficient to…

The referee to whom this case * was referred reported as follows: “ The plaintiff, J. C. Haskins, owned and occupied a steam saw-mill, situated on the mountain in Stamford, and had been running the same for some time previous to the 6th day of December, 1866 ; said Haskins was embarrassed, and since the 6th day of December, 1866, has been insolvent. “ The defendant, Bennett, had a debt against said Haskins, amounting to about the sum of $130, and called on Haskins for pay on…