Volume 42 — Vermont Reports

Action on the case for speaking slanderous 'words. Plea, the general issue. Trial by jury, April term, 1868, Barrett, J., presiding.

Assumpsit for use and occupation, brought before a justice of the peace. Held: used, occupied, possessed and enjoyed, in consideration whereof, and being so indebted, the defendant then and there promised the plaintiff to pay him said sum on demand, but yet, though requested, the defendant has never paid the same, nor any part thereof.” To this declaration the common counts of indebitatus assumpsit were added.

Trover for cattle. Plea, not guilty. Trial by jury, September term, 1868, Barrett, J., presiding. It appeared that said cattle, early in September, 1866, were stolen from a pasture in Dover, by three thieves, and driven to Hoosac, in the state of New York, to the defendant’s tavern, and that the same were taken the nest day from said tavern by Risley, a butcher, and slaughtered for beef.

Action on the case for an injury on the highway to the plaintiffs’ wagon. Plea, the general issue. Trial by jury, September term, 1868, Barrett, J., presiding. The plaintiffs introduced testimony to prove the injury to the wagon and other proper items of claim — and then offered to testify that they were deprived of the use of the wagon twelve days, while it was being repaired, and that it was a loss to them in their business of five dollars a day.

Assumpsit. The writ was issued as a capias upop the affidavit that the defendant was about to leave the state, etc., and the defendant was arrested and held to bail. Plea, the general issue. Trial by jury, September term, 1867, Barrett, J., presiding.

Scire Facias against the defendant as bail on mesne process. The original writ on which the defendant became bail was made on the 21st day of March, about nine o’clock A. M., and ran against the body of the debtor, Henry Howard, and was served immediately by an arrest. The affidavit required in case of an arrest reached the justice the same day about eleven or twelve o’clock.

. Ejectment. Plea, the general issue. Trial by the court, September term, 1868, Barrett, J., presiding. On the 20th day of June, 1855, the defendant purchased the premises in question, and took a deed of the same. These premises consisted of a small parcel of land; with a house and barn upon it, upon one side of a highway, and of a blacksmith’s shop and water privilege on the opposite side of the highway. The whole worth less than five hundred dollars.

Action on the Case against the town of Somerset to recover for injuries received by the deceased plaintiff, occasioned by the insufficiency of a highway in the defendant town. Plea, the general issue'. Trial by jury at the September term, 1867, Barrett, J., presiding. • An act of the legislature, passed in 1856, authorized the county court in its discretion to refer to' one or more commissioners any civil action pending therein.

Trover for a pair of oxen, with an allegation of special damage. Plea, the general issue. Trial by jury, September term, 1868, Barrett, J., presiding.

On the 30th day of October, 1866, the plaintiffs severally presented petitions to the probate court for the district of Westminster, setting forth in their respective petitions that they each had claims against the estate of Foskett Farr, late of Jamaica, deceased, which they desired to present to the commissioners on said estate, and the reasons why they could not present them before, and praying that the commission to the commissioners on said estate be renewed and some…

Trespass in four counts, to which the defendant pleaded the general issue, and four special pleas in bar, to which the plaintiff replied. Tidal by jury, September term, 186T, Barrett, J., presiding. Held: and remain as long as was reasonably necessary to make a proper attachment of goods on said writs, (explaining to the jury fully what would be reasonally necessary for that purpose).

<p> Medical 'Services. Contract. Statute of Frauds. </p> <p>The plaintiff, a physician, attended the defendant’s daughter, twenty-two years old, being sent for by her while sick at defendant’s house, and on the occasion of the first visit, after examining her and prescribing for her, tho defendant said to him that he wished him to attend her and do all he oould for hor, but be as reasonable in his charges as he could for he supposed he should have to pay the biUs, and on a subsequent visit repeated the same in substance, and on other occasions made other expressions while the account was accruing recognizing his liability and acknowledging that he employed the plaintiff. The plaintiff made all his charges to_ the defendant, and it was understood by both plaintiff and defendant, whUe the account was accruing, that the defendant was to pay it. Held, that these facts were sufficient to create a direct original indebtedness from the defendant to the plaintiff.</p> <p>It being a direct original indebtedness, not collateral, it is not within the statute of frauds, though the services were solely for the benefit of a third person, and that known to the plaintiff.</p> <p>The fact that the daughter expected to pay the plaintiff by the aid of her brothers and sisters, which was not oommunicated to the plaintiff, would not affect tho defendant’s liability.</p> <p>The defendant’s promise cannot be brought within tho statute by showing that the facts create a liability on the part of- tho daughter to the plaintiff, as it would only show a direot joint indebtedness of the defendant imd his daughter, to which the statute does not apply.</p>

Assumpsit for money had and received. Plea, tbe general issue. Trial by jury, April term, 1868, Barrett, J., presiding.

Petition for foreclosure in common form in chancery, setting ■forth a mortgage by the defendant to the plaintiff, of a farm in 'Townshend, December 9, 1864, to secure a note of $8000 of same date on demand with interest after the nest April, given for part of the purchase money of the farm.

<p>Action of ejectment for pew No. 45 (formerly No. 37,) in the meeting-house of said society in Brattleboro. Plea, the general issue. Trial by the court, April term, 1867, Barrett, J., presiding. Judgment for the defendant.</p> <p>It appeared that the defendant held the pew under a deed from E. P. Sawyer, dated March 4,1850, in usual form to the habendum, which was, “ To have and to hold the same to him the said James M. Reed, his heirs and assigns forever, provided, however, if the said James M. Reed, his heirs or assigns shall neglect or refuse for the space of six months after personal notice to pay such assessments as shall be made by the Brattleboro East Society, agreeably to their by-laws, for the sole purpose of repairs of said house and appurtenances, then this deed shall be void and said pew shall revest in said society.” In other respects the deed was in usual form. Sawyer’s title was by a deed from Charles C. Erost, dated June 16,1846, who had a deed from said society, dated January 11, 1843. These two last named deeds each contained a like proviso.</p> <p>On the 21st of January, 1865, three of the five trustees of the society, acting under a vote of the pewholders, made an assessment* upon certain pews, twenty-one in number, among which was the one in question, and made, approved and signed the following notice or rate-bill, for the defendant, and like ones for the other owners of said pews :</p> <p>Brattleboro, January 21,1865.</p> <p>Sir: — At a meeting of the pewholders of Brattleboro East Society, an assessment of $147.25, was voted upon your pews to pay for the repairs made upon the meeting-house of said society. This amount is payable in thirty days from date. Should you deem it best to transfer your property to the society and become a member of the association, you can do so, and the assessment will be assumed by the society. Your decision is respectfully requested on or before Thursday nest.</p> <p>The articles of association of the society provided (among other officers) a collector, but since 1862 the society had chosen no collector, (the collector then chosen. being Nelson Crosby, wlm still resides in Brattleboro,) all collectiofis since that time having been made by the trustees. At this time the trustees constituted their chairman, S. M. Waite, collector to collect the assessments upon the twenty-one pews, and directed him to notify the owners, of these pews of the assessments. These notices were directed to said pew owners, and deposited in the post office, the notice to the defendant with the others. The defendant made no response to his notice till July 25, 1865, when he called on the chairman and said he had received notice of the assessment upon his pews ; that he had notj attended to it as he ought to have done, but would pay it that day. The chairman told him he had no authority to receive it then, as the defendant had failed to comply with the rules and regulations of the society, and he did not receive it.</p> <p>Since the repairs made just before the date of the assessment, the defendant has asserted his claim to the pew, and whenever the society has made their annual rentals, the defendant has been present and claimed his pew, and notified parties that he should claim rent of them for the other pew he did not occupy. He has occupied the pew in question, No. 45, but has paid nothing to. the society.</p> <p>Various questions were made in the county court as to the validity of the assessment and other proceedings of the society and the pewholders, and insisted on in argument in this court; and in connection with these questions, the records of the society have been referred to, and many of the votes and proceedings are set out in the exceptions. And as bearing on these questions, other facts are stated, but all this is immaterial to any question decided by this court, and therefore omitted. Judgment for the defendant, to which the plaintiff excepted.</p>

Action of trespass under the statute, as per declaration. Plea, not guilty. Trial by jury, September term, 1868, Barrett, J., presiding. Tbe declaration is as follows: “ In a plea of trespass given and had under and by force of the ninth section of chapter 104 of tbe General Statutes of said State-of Vermont, for that tbe defendant,” &c., and then proceeds in common form, alleging that tbe defendant’s dog worried and killed tbe plaintiff’s sheep.

<p> Deposition. Execution. Special Verdict. Practice. </p> <p>The caption of a deposition taken out of the state desoribod the court as to be hold at "Woodstock within and for the said county of Windsor,” and omitted to name the state. The party is named in the caption as resident in Ludlow, in the county of Windsor, in the state of Vermont. Held, that the caption was sufficient. 31 Vt., 709.</p> <p>By the Rev. Sts., § 44, p. 174, a justice execution, for moro than fifty-three dollars damages, should be made returnable in one hundred and twenty days, even though upon a judgment rendered upon oonfession.</p> <p>It is always competent for the court to require a special verdict upon any or each distinct issue of fact made by the evidence, and in such cases a new trial will not be ordered unless in the judgment of the supreme courb there has been error in the rulings of the county court on some branch of the case with respect to which a different vordiob would alter the general result.</p>

Trespass quan-e clausum fregit. Plea, not guilty. Trial by jury, May term, 1868, Barrett, J., presiding.

Assumpsit, in four counts. Pleas, the general issue, the statute of limitations, ancl four other special pleas in bar. • To the third, fourth, fifth and sixth pleas in bar the plaintiffs demurred specially. The court at the May term, 1868, Barrett, J., presiding, pro forma, adjudged the pleas sufficient, and rendered judgment for the defendant, to which the plaintiffs excepted.

Replevin. Plea, the general issue. Trial by jury, December term, 1868, Barrett, J., presiding.

Assumpsit. Plea in abatement, to which the plaintiffs demurred generally. At the May term, 1868, Barrett, J., presiding, the court sustained the demurrer and' gave judgment for the plaintiffs, to which the defendant excepted. Judgment was rendered against the trustee according to his disclosure.

Assumpsit for money had and received. Plea, the general issue and notice. Trial by jury, 'December term, 1868, Barrett, J., presiding. The plaintiff’s evidence tended to prove that April 1st, 1862, he enlisted into the United States service, and was entitled to $7 per month state pay.

Case for false warranty in the sale of a farm. Plea, not guilty. Trial by jury, May term, 1868, Barrett, J., presiding. .

Book Account. The auditor reported substantially as follows: The plaintiff’s account was as follows : Bank op Royalton, To George W. Bradstreet, Dr. To services rendered, 10 months.............. $50 00 1860. 1 year................. 75 00 “ 75 00 1861. 1862.

<p>Certiorari. Bridges.' Towns. Statute. (^Gren. Sts., oh. 24,§65.)</p> <p>Tho issuing of tho writ of certiorari is a matter of discretion with tho supreme court; honco it will first look into the record of tho proceedings complained of to see if there is any substantial error therein, such as requires the interposition of tho supreme court to prevent a legal injustice, as it is not every error in the proceedings below that will induce this court to exercise its discretion and issue the writ.</p> <p>The statute, (Gen. Sts.,‘ ch. 24, § 65,) which confers upon the county court power to compel other towns than the one, in which a particular bridge or road is located, to contribute to the expense of building or- repairing the same, is prospective, and refers only to oxponses that are to be incurred subsequent to the order. An order therofore by the county court upon a town in such,case, to contribute towards past expenses, would be error that requires the interposition of the supreme court by certiorari.</p> <p>Tho county court might have accepted the report as to future expenses and rejected it as to past, and by consent of counsel this case was disposed oí on the record being certified up, by vacating the-order requiring contribution as to the sum ex~ pended in the building of the bridge in question, and allowing it to stand as. to future repairs.</p>

Plea, that the town of Landgrove was not at the time of making the order the legal settlement of the pauper, Reuhama Martin. Trial by the court, by consent of the parties, December term, 1868, Barrett, J., presiding. It was agreed that the pauper’s legal settlement was in Land-grove at the time of said order — provided she had sufficient mental capacity to enable her to gain a legal settlement in her own right by more than seven years’ residence.

Bill op Interpleader, setting forth that in March, 1864, at Chester, the orator borrowed $300 of Mrs. Juliette P. Howe, wife of Foster Y. Howe, of Chester, and gave her therefor his promissory note as follows: “ Chester, Ft., February 18, 1864. “ For value received I promise to pay Juliette P. Howe, or bearer, three hundred dollars on demand, at five per cent, interest annually.

Trover for a stone. Pleas, the general issue and two special pleas. Replication joining the issue tendered and traversing the special pleas. Trial by jury, May term, 1868, Barrett, J., presiding.

Indictment for perjury. Plea, not guilty. Trial by jury, December term, 1868, Barrett, J., presiding.

<p> Arbitration. Revocation. </p> <p>The counsel of one of the parties to a submission to arbitration, after the case had been heard by the arbitrator, and before his decision, writes to the arbitrator the following letter:</p> <p>“Felchvillo, September 11, 1866.</p> <p>“Hon. Sewall Fullam, Ludlow, Vb. — Shortly after meeting you at the probate court at Cavendish, I wrote to C. P. Marsh, Esq., stating what you informed me, and asking a copy of his brief. I find mjr letter was dated August 28. He replies under date of September 1st, but gave no intimations whatever as to what he claimed in the case. I have a copy made of the argument, I enclose to you, and am ready to furnish it to Mr. Marsh if he will only agree to furnish me with a copy of his brief according to the agreement made on the day of the hearing before you. As matters now stand, I cannot determine whether 1 have answered all his points or not, and* Mr. Keyes thinks that Mr. Marsh has not dealt fairly in the case, and objects to any decision of the case until we can be informed as to the claims made by the opposite party, and have an opportunity to reply to them.</p> <p>“Respectfully, Gilbert A. Davis.”</p> <p>Held that it did not operate as a revocation of the submission. Held, also, that it would noc amount to a revocation if the jury should find an agreement between the counsel to exchange briefs as claimed in the letter, the writer of the letter knowing at' the time of writing it that the counsel of the other party had sent his brief to the arbitrator, without furnishing a copy, according to the agreement, to him or to his client Keyes.</p>

Action of trespass for taking a quantity of hard wood boards, the property of the plaintiff, in Templeton, Massachusetts. Plea, the general issue. Trial by jury, December term, 1868, Barrett, J., presiding: The plaintiff and one Frederick Parmenter and one David Goddard gave evidence as to the ownership of said boards, as shown by the judge’s minutes, which were referred to. There was no other testimony given bearing .upon that subject on either side.

Audita Querela. Trial by court, May term, 1868, Barrett, J., presiding. The audita querela was brought to set aside a judgment against the plaintiffs in this suit, as trustees of Frederick R. Mattison, rendered in a suit before a justice of the. peace, in which this defendant was plaintiff, and said Mattison principal defendant, and the plaintiffs in this suit summoned as trustees.. .

Assumpsit in the common counts for money paid. Pleas, the general issue, offset, settlement, accord and satisfaction, and former recovery. Trial by jury, December term, 1868, Barrett, J., presiding. The plaintiff offered in evidence an award between the parties, dated December 5,1865, signed by John Porter and Samuel E. Pingree, arbitrators, which is referred to; basing his claim to recover for payments made by him, falling within the second section of said award.

Book Account. The auditor reported as follows : “ The plaintiffs were physicians at the time of rendering the services charged, and were partners at Chelsea. In December, 1863, Mrs. Mary Ann Watson, a married daughter of the'defendant, was sick in Yershire,' at the house of Mr. Ezekiel Flanders, who had married a sister of the defendant.

Action of account.' It appeared from the auditors’ report in this case, that.at the annual town meeting of the town of T.opsham, in 1865, R. W. Bill, W. T. George, and . the defendant, were duly elected selectmen of said town for the ensuing year; that the defendant was duly appointed, by the commissioner of Orange county, agent for selling intoxicating liquor in said town for said year ; that the said’ selectmen, Bill and George, acting for said town, entered into a written…

Trespass quare clausum fregit. Plea, the general issue. Trial by jury, December term, 1867, Peck, J., presiding. The plaintiff, to maintain the issue on his part, among other testimony offered the deposition of one Henry McDuffee, which was objected to by the defendant for the reasons stated in the opinion of the court, but the same was admitted by the court and read to the jury, to which the defendant excepted. -, for the plaintiff.

<p> Authorization. Motion to Dismiss. Pleading. Abatement. </p> <p>An authorization inserted in the direction of a county court writ in these words: “To O. II. Harding, an indifferent person, to serve and return,” is sufficient. 23 Vt.; 618.</p> <p>Alleged grounds of dismissal, which involved matters not shown by the record, and such as may be the subject of an issue and controversy as ,to the existence of the facts, are improper in a motion to dismiss, a plea being the proper mode of bringing the subject before the court.</p> <p>A prayer of a,plea in abatement that a Writ in ejectment be quashed and abate as to all the three defendants, where the plea alleges ground for abatement applicable only to two, is too largo; and the jilea in suOh case was adjudged insufficient,</p>

This was an action against the defendant town for an injury to the plaintiff’s wife, by reason of the insufficiency of a highway in Waterbury, by Avliich the plaintiff lost the services of Ms wife, and incurred expense for doctoring and taking care of her, etc. There was another action in favor of the wife of the plaintiff, in which the plaintiff joined, for the same accident, to recover for her personal injury.

This case, being an action of assumpsit on a note, was heard by the court, March term, 1869, Peck, J., presiding, on special report of referees, upon which report the court pro forma rendered judgment for the plaintiff in accordance with the report; to which decision the defendants excepted..

General a-nd Special Assumpsit. Plea, the general- issue. Trial' by jury, and-verdict for the-plaintiff,.September term; 1867, Peck, J., presiding-.

Action on tlie case for malicious prosecution of a civil suit. Plea, the general issue. Trial by jury, and verdict for the plaintiff, March term, 1868, Peck, J., presiding.

Assumpsit to recover a soldier’s bounty, three hundred dollars. Plea, the general issue. Trial by jury, March term, 1869, Peck, J., presiding.

Assumpsit, to recover the amount of two promissory notes. Plea, the general issue and the statute of limitations. Replication, absence of the defendant from the state as a soldier in the United States army, to which the defendant filed a rejoinder, to which the plaintiff orally demurred.

Action on tho case for an alleged libel on the plaintiff, published in a newspaper called the Argus and Patriot, printed and published at Montpelier. The defendant pleaded the general issue, and gave notice under the statute of special matter in defense. Trial by jury, and verdict for the plaintiff, March term, 1869, Peck, J., presiding.

Indictment charging the respondent with having on the 10th day of Aiigust, 1865, published of and concerning one Nathaniel Eaton, a libel, as stated and set forth in said indictment. To this indictment the respondent demurred generally. Demurrer overruled, and judgment that the indictment is sufficient, and exceptions by respondent. Heard at the March term, 186$, Pecic, J., presiding.

Trespass Quare Clausum Rregit. The case was referred by the court, by agreement of parties, to referees, “ to establish the lines between the parties, stake the same, and report the facts to the court,” and was heard by the county court on the special report of the referees, on which report the court rendered judgment for the defendant, and made a special order as to the division of costs (as appears by the docket minutes,) between this suit and case of Black against Howard,…

<p>This was an action for seducing the plaintiff’s minor daughter and getting her with child, whereby the plaintiff lost her services, etc. Plea, the general issue, and as to entering into the house, a license, and trial by jury. Verdict for the plaintiff, September term, 1868, Peck, J., presiding.</p> <p>The plaintiff introduced evidence tending to prove all the facts necessary to entitle the plaintiff to recover, and rested the case.</p> <p>The defendant, for the purpose of reducing the damages, offered evidence tending to show that the character of the plaintiff’s said daughter, before the act of the defendant claimed of, was not good ■as to chastity, which was admitted against the objection of the plaintiff’s counsel.</p> <p>The plaintiff introduced witnesses whose testimony tended to show that up to the time of her connection with the defendant her reputation for chastity was good, and that there were no imputations against it.</p> <p>The plaintiff moved for a certificate that the cause of action arose from the wilful and malicious act of the defendant, and that he ought to be confined in close jail. The evidence on the jury trial tended to show that on the evening the child was begotten the defendant was in plaintiff’s house visiting his said daughter, and that the plaintiff had reason to suppose the purpose and intentions of the defendant were honorable, and the plaintiff knew when the defendant came, and that after sitting a short time in the room with the plaintiff and the rest of the family, the defendant and the plaintiff’s daughter left the room and went into the parlor at the invitation of the daughter, the defendant having previously that evening solicited her company. The court told the jury that so far as the trespass for entering into the house was concerned, the fair inference was that it was by license of the .plaintiff, and the court so regarded it in passing upon this motion.</p> <p>The defendant insisted that for the act of reduction and debauching the plaintiff’s daughter, the action or cause of action was not such as to legally warrant a certificate, and that the facts in this case did not warrant it. There was nothing in the evidence to show that the cause of action was wilful and malicious, other than the fact of the defendant debauching the plaintiff’s daughter and getting her with child, and the consequential damages.</p> <p>The court adjudged that the cause of action arose from the wilful and malicious act of the defendant, and granted a full certificate in the usual form; to which the defendant excepted.</p> <p>The court improperly granted the certificate in this case, as the case does not come within the meaning of the statute. (Gen. Sts., p. 706, § 36.) We have no statute directing the issuing of the certificate, or defining in what cases a certificate may be granted, except to enhance costs. Since this act has been on the statute books, the courts have not favored it, but have avoided it whenever they could. Barber v. Qhase, 3 Yt., 340 ; Robinson v. Wilson, 22 Yt., 35; Soule v. Austin, 35 Yt., 515. '-We claim that in the action at bar no certificate can be granted, as the recovery was not on the count for trespass guare clausum, fregit. There was certainly no malice in the act in this case on the part of the defendant. The connection, in this case, was with the mutual consent of the defendant and the plaintiff’s daughter, without any malice towards the father or any other person. There was no legal malice, as the act of having connection with the daughter was not intended by the defendant to work a- legal injury to. the plaintiff, and if it had not been for a result not intended no action for the connection could have been sustained by the father.</p>

Trespass on the freehold. The plaintiffs’ declaration described the close in which the alleged trespasses were committed as being “ a certain lot of land of the plaintiffs, situated and being in Pownal, in this county, and being a strip of land over which the Southern Yermont Railroad was formerly laid, and that part of said piece of land which is adjoining to a piece of land occupied by the defendant.” The trespasses complained of were alleged in the declaration to have…

Assumpsit. Plea, the general issue. Trial by jury, January term, 1867, Orange county, Steele, J., presiding. The plaintiff, Henry Leet, enlisted and was mustered and credited to Newbury, and was paid by that town two hundred dollars, which was all the town had voted to pay recruits when he enlisted.

Assumpsit for a town bounty. Plea, the general issue, and uotice of payment of $500 in full of plaintiff’s claim. Trial by •jury, August term, Caledonia county, 1869, Steele, J., presiding. Verdict for the plaintiff, for $200 and interest. The plaintiff’s enlistment, service and credit to the town of Danville under the call of July, 18, 1864, were regular.

Assumpsit to recover a town bounty of three hundred dollars. Plea, the general issue. Trial by jury, June term, 1867, Caledonia county, Steele, J., presiding. It was proved that the defendant town had voted a bounty for drafted men who passed to its credit; that the plaintiff was drafted in the town of Peacham and passed to its credit, and was entitled to the bounty claimed, unless he had forfeited his claim by desertion.

Bill in Chancery. The orators brought a suit against George W. Strong in 1864, and recovered judgment therein in 1858, and caused execution to be levied on certain real estate in Rut-land, -which had been attached when said suit was instituted. Previous to this suit and attachment, said George W. had conveyed by deed of trust said real estate to the defendant, Moses M. Strong- and said Moses M. subsequently sold and conveyed the same to the defendant Ellsworth.

Bill in Chancery. The case arose in Caledonia county and was heard upon bill, answer and testimony, by Steele, Chancellor, but it did not appear, from any papers furnished, what the decree was except as indicated at the close of the opinion of the court, in which is a sufficient statement of facts and claims of the parties.

Trespass for breaking and entering the plaintiff’s close in Sharon, and cutting and taking away a quantity of hemlock trees. Plea, the general issue, and trial by jury, May term, 1868, Windsor county, Barrett, J., presiding.

<p> New Trial. Newly Discovered Evidence. </p> <p>In a petition for a now trial, the apparent justice or injustice of the verdict is always proper to be considered; also in determining the question whether the party was in the exercise of reasonable diligence, and failed to find and use the newly discovered evidence without any lack in this respect, it is the duty of the court to have regard to the state of the case as it stood upon the evidence on the trial.</p> <p>Where a party has produced evidence sufficient in the judgment of the court fairly to entitle him to a verdict, and yet fails of getting such verdict, the fact that he did not inquire further for more evidence, even though such inquiry would have resulted in finding the very evidence newly discovered, would not be conclusive against him on the score of the lack of diligence.</p> <p>It is now understood that evidence to the same facts that other witnesses have testified about, if those facts are material and would be controlling in the case if established, is not excluded by the rule as to cumulative evidence, provided such evidence, in addition to that already given, would with reasonable certainty produce a verdict the other way.</p> <p>A new trial was granted in this case on the ground of newly discovered evidence.</p>

Trespass and Trover joined to recover the value of a horse. Plea, the general issue. Trial by jury, June term, 1869, Caledonia county, Steele, J., presiding. This cause was remanded from the supreme court for a new-trial, and a new trial was had, upon substantially the same evidence as before. The facts are fully and correctly stated in the report of the case in the 41st of Vt. Reports, page 470.

Debt on executor’s bond. Plea, the general issue. Trial by the court upon a case stated, December term, 1867, Caledonia county. Steele, J., presiding. The view taken of the case by the supreme court renders an extended statement of the facts and questions raised in the court below and argued in this court unnecessary, and the facts set forth in the course of the opinion seem to be sufficient for an understanding of the point decided.

<p> Sheriff and Deputy. Interest. Sheriff’s Sale on Credit. </p> <p>In an action against a sheriff for default of a deputy in not paying over to the party entitled the proceeds of a sale of property attached hy the deputy, evidence that the action, in which the attachment and sale was made, was instituted by the parties to it for the purpose of enabling the defendant therein to defraud his creditors, is not admissible, as the sheriff is accountable for the default in» such case. A sheriff is also liable for default of a deputy when the deputy sells goods attached that are liable to perish, etc., on application of the parties, on credit, by direction • of the defendant therein, but subsequently receives pay therefor, which he refuses . to pay to the party entitled 5 but it must appear affirmatively that he received the money during the pendency of the suit, or before the attachment lien was discharged.</p> <p>Demand for the money was made soon after the attachment, lien was discharged by a judgment for the defendant in said suit, and the court ruled that the officer was not liable for interest prior to the demand. Held that in this there was no error. The deputy having taken a note for a portion of the goods sold by him on credit, and passed it over to the sheriff, and the latter having taken a bond of indemnity from the maker against any loss on account of it, and not having thereafter tried to collect the note, the sheriff thereby made it his own, and became accountable for it.</p>

Action on the case for the default of one Amory Parker, the defendant’s deputy. Plea, the general issue. Trial by jury, June term, Orleans county, 1869, Steele, J., presiding.

<p>Action on the Case, to recover that portion of a judgment recovered at a former term of the court, by Henry Oakes and wife against the plaintiff and the defendant jointly, for an injury done by a ram to the wife of said Henry Oakes, and for the costs and expenses of said suit, which the plaintiff has paid, as stated below. Plea, the general issue. Trial by jury, September term, 1868, Chittenden county, Pierpoint, C. J., presiding.</p> <p>The facts in this case are the same that appeared in the said former suit, as reported in the 40 Vt., 347. It further appeared that when the defendant took the ram, as stated in said report, he had sold his flock of sheep, except said ram, to be delivered after they were sheared; and the plaintiff,'on being asked, by the defendant’s counsel, where he, at the time of the washing, understood or expected the ram would be kept afterwards, replied that he did not know that lie had any expectation or understanding on the subject. It also appeared that the plaintiff, on one occasion, before the injury to Mrs. Oakes, saw the defendant driving the ram with his sheep in the road, and at another timé was told, by the defendant’s son, that the ram had got out of the lot and he was going after him, and on neither occasion did the plaintiff make any objection, or say anything. The defendant did not appear to or defend said action, in favor of Henry Oakes and wife, but the plaintiff did, and defended the same for himself, but on trial judgment was rendered thereon for the plaintiff for the damages occasioned to Mrs. Oakes by said injury. The plaintiff was compelled to pay, and did pay, upon said judgment, one half of the damages recovered in said action, and the whole costs less six dollars. The whole sum so paid by the plaintiff, on said judgment, including interest to ■ the time of payment, December 2d, 1867, was $880.19. On the 20th day of December,. 1867, the plaintiff paid Henry Oakes, the husband of the injured woman, $350, for one half of the claim of Henry Oakes, personally against the plaintiff and defendant, and at the same time the defendant also paid Henry Oakes $350, for the same purpose, being $700 in the whole, which sum the plaintiff and the defendant were legally bound to pay to Henry Oakes, as between him and them, on account of said injury. In attempting to defend said action the plaintiff necessarily expended $20 for personal expenses about the same,- and for necessary counsel fees $200.50. The plaintiff defended said action and incurred said expenses and costs in good faith, under the advice of counsel that he was not liable for said injury. While the ram. was so in the custody and possession of the defendant, and when the injury aforesaid occurred, the plaintiff had no knowledge on the subject of the arrangement between the defendant and said Henry Oakes as to said cause, or of any of the facts connected with it, or with Mrs. Oakes. Upon the evidence, the court, pro forma, directed a verdict and judgment for the defendant, to which the plaintiff excepted.</p> <p>In this cause the defendant having died since the trial in the county court, it was stipulated that if the administrator of the defendant should enter and defend the suit, by so doing they should not lose, or be taken as waiving the right to move to dismiss upon the ground that it does not survive.</p> <p>The common law rule that one joint tort fedsor shall not maintain an action against another, for indemnity or contribution, is limited to those cases where the tort, for which the party claiming redress has been compelled to pay damages, is a known meditated wrong, committed by him intentionally, and with a knowledge (or such information as amounts to knowledge) that the act was unlawful. This rule has never been extended to cases where, without personal participation in any improper motive, and without any unlawful intent on his part, a party has been subjected to liability merely on account of his relation to the perpetrator of the wrong. Merryweather v. Nixon, 8 T., 186 ; Betts v. Gfibbons, 2 Ad. & El., 57: Adamson v. Jervis, 4 Bing., 72; Wooley v. Batté, 2 C. &. P., 417 ; Jacobs v. Pollard, 10 Cush., 287 ; Bailey v. Bus-sing, 28 Conn., 455 ; Chit, on Con., 440, 441,521; 1 Smith Lead. Cas., 200, 202, (top paging); Story on Part., § 220; 1 Pars, on Con., 37, note.</p> <p>The plaintiff’s right to recover is not affected by the vicious character of the ram. Ownership of a vicious animal, known to be such by the owner, is not per se tortious; for it is lawful to own and keep such an animal. Jackson and Wife v. Smithson, 15 M. & W., 561; Oakes and Wife v. Spaulding, 40 Vt., 347.</p> <p>The doctrine of contribution applies only between parties whose guilt is equal; and not to cases where the actual guilt rests wholly with one or more, and the others are made responsible to the person suffering therefrom merely by reason of their relation to the party doing the wrong. In the present case, the plaintiff is entitled, not to contribution merely, but to indemnity.</p> <p>If the common property is destroyed or injured through the misfeasance or negligence of one joint owner, he is responsible to the other for the damage he sustains thereby. Martin v. Showily s, 8 T. R., 145 ; Daniels v. Daniels, 7 Mass., 135 ; Ohelsey v. Thompson, 3 N. H., 11; Gruillot v. Donat, 4 Martin, La., 203. The law plainly imposes on the one joint owner in possession and control of the common property, the duty of exercising reasonable care and prudence in the management and restraint of the common property. The failure to fulfil this duty has caused the plaintiff to expend the sums claimed.</p> <p>The plaintiff is entitled to recover what he reasonably expended in resisting, in good faith, a recovery in the suit brought against him by Henry Oakes and wife, as well as what he paid upon the execution in that case. Hamden v. N. H ‡ N. B. JR. Oo. et al., 27 Oonn., 158.</p> <p>The relation between the plaintiff and the defendant, as joint owners of the animal, for common use, made them, as to that, partners, or quasi partners. The defendant assumed no special obligation or undertaking with the plaintiff, in regard to the custody of the ram, but merely had him in possession for the time being, as part owner, with the plaintiff’s assent. Between such parties the law affords no remedy for the negligence of either in the management of partnership business, or the care of partnership property. Moody v. Bucle, 1 Sandf., 304; Hawlcins v. Ap-. plebee, 2 Sandf., 421; Twolong v. Bartlett, 21 Pick., 401; Lyles v. Styles, 3 Wash. C. O. Rep., 224; Oollyer on Part., § 183: Franklin v. JRobinson, 1 Johns., oh. 165. Especially must this be true where, as iri'the present case, the negligence of both parties contributed to the common loss sustained.</p> <p>But the plaintiff and defendant were not only jointly in fault as between themselves, but as to the injured party, they were both wrong doers.- The recovery against the plaintiff was not upon the ground that he was responsible for the defendant’s conduct, but that he was liable for his own. Meryweather v. Nixon, 8 Term, 186 ; Galhoun v. Patmere, 4 Term, 677; 1 Smith’s Lead. Cas., 201. Irrespective of the relation of these parties as partners or joint owners, it is a rule without exception, that no action.can be maintained for damages sustained by the negligence of another, when the plaintiff’s own negligence contributed to the injury.</p>

This was an appeal from an order of the probate court appointing Helen- H. Anderson administratrix of Charles D. Anderson, her late husband, deceased. Trial by the court, March term, 1869, Washington county, Peck, J., presiding.

Bill in Chancery. The orator alleged Ms ownership of the land in question on the 2d day of April, 1853, located in Barre ; that on said 2d day of April the orator and one John A. Smith gave to. one George W. Harrington a note for the sum of $300, payable as follows: $100 on the first day of April, 1854; $100 the first day of April, 1855 ; and the balance the first day of April, 1856, with interest annually, and secured the same by mortgage on said premises; that on the 2d…

Action on the case. To the plaintiffs’ declaration tbe defendants filed a general demurrer. Joinder on demurrer and trial by the court, June term, 1869, Orleans county, Steele, J., presiding. Judgment that tbe declaration was insufficient, and for tbe defendants for their costs. Exceptions by the plaintiffs. Tbe substance of tbe declaration, is stated in tbe opinion of the court.

Action on tjie case, for killing or injuring the plaintiff’s bull by the defendants’ engine. Plea, the general issue. Trial by jury, June term, 1867, Caledonia county, Steele, J., presiding. Held: and broke over the fence into the enclosure of the defendants’ road. •> There was no pretense that the animal was rightfully in Morgan’s field.

Action on the case, to recover damage for the fraud of the defendants. General demurrer to the declaration.

Tfiis was a petition for partition of real estate. At the March term, 1869, Peck, J., presiding, the action was entered, and the question as to the right and title of the respective parties in the premises was tried, on an agreed statement of facts in writing. The petitioner claimed to be the owner of one undivided fifth part of the premises, and the petitionees insisted that the petitioner had no right, title or interest in the premises.

<p>Indictment, for voting for town representative in two towns on the same day. Plea, not guilty. The case was tried by the court, Peck, J., presiding, at the September term, 1868, upon an agreed statement of facts. The court found the respondent guilty, to which the respondent excepted.</p> <p>The following is the agreed statement:</p> <p>“ The respondent became twenty-one years of age during the winter of 1867, and had always before that time resided with his father at Plainfield, Washington County, Vermont; that in March, 1867, he went to Montpelier to work at his trade, which was that of a joiner, and took his tools and clothing with him ; that he continued to work at Montpelier till the last of May, at which time he quit work there and went to work at Barre, taking his tools and clothing with him, and continued to work at Barre till the September election in 1867 ; that the respondent never has resided at Plainfield since that time ; that the respondent’s father resided at Plainfield aforesaid, till after the September election in 1867, and before the day of election sent for the respondent to come home on the day of election to vote; that accordingly, on the ■ first Tuesday of September 1867, the respondent voted at Plain-field aforesaid, for a person for town representative, and no objection was made by any person there or voter, that he was not legally entitled to vote ; that after the election of the representative at Plainfield, the respondent returned to Barre the same day, and at the time of his return no person had been elected at Barre for town representative; that the respondent upon his return was asked if he was not a legal voter and entitled to vote for some person to represent the town of Barre; that the respondent told them that he supposed he was not a voter at Barre, but he did not pretend to know himself whether he was or not, as he never had voted at any preceding election, and had made no inquiry about the place where he had a right to vote, of any person who was well informed upon that subject; that he told them the truth in relation to all questions that were asked him about his place of residence and length of time he had stopped in different towns, and also told the persons and voters there, whom he was talking with, that he had that same day voted for a person for town representative at Plainfield, one Levi Bartlett; that some of the voters at Barre insisted that the respondent had made a mistake as to the town in which he was entitled to vote — that he was entitled to vote for that officer at Barre instead of Plainfield, and urged him to vote for some person, for town representative at Barre, and told him that no one could hurt him; that the respondent presented a vote for a person for town representative to the proper officer to receive the same at Barre, and his vote was challenged, and thereupon the respondent went before the town authority of Barre, who are by law to decide the right of persons to vote at such elections, and told such town authority the truth in relation to all questions asked of him about his residence, and the length of time he had stopped in different towns the year before, and also told such town authority that he had voted for a person for town representative to represent the town of Plainfield, that same day, and did not wish to vote at Barre for that officer unless he had a right to do so; that the town authority, after considering the same, decided that the respondent was entitled to vote for some person for town representative for the town of Barre, and that thereupon the respondent voted for a person for town representative at Barre the same day, one Prank Stafford, supposing at the time that he had made a mistake as to the town where he had a right to vote for that officer when he voted at Plainfield, and that he had a lawful right to vote at Barre.</p> <p>“ All of the foregoing, which would not be legal evidence on the trial of the case, is excluded by this agreement.</p> <p>t£ It is further agreed, that when the respondent left Plainfield in March aforesaid, he went with the intention of stopping where he could get work, and when he had finished his job, of going to any other town where he could find employment.”</p> <p>By, the agreed statement of facts th’e respondent should not have been found guilty — because : 1. That the respondent acted in' good faith, and in no way attempted to conceal the truth about his residence, and also acted upon his best information at the time. 2. That he was a legal voter at Barre, and committed no crime in voting there; the decision of the town authority of Barre was correct. Putnam v. Johnson, 10 Mass., 487. 3. That if the respondent committed any crime at all, it was when he voted at Plainfield, and he should have been indicted under section 66 of chapter 1 of the General Statutes.</p>

Ejectment for lot No. 4 in the 9th range in the town 'of Marshfield. Plea, the general issue and notice. Trial by jury, September term, 1868, Peck, J., presiding. Verdict for the defendant.

Assumpsit, in five counts, to recover $200 town bounty. Plea, tbe general issue. Trial by the court, May term, 1869, Wilson, J., presiding. The- plaintiff offered the record of a vote of the defendant town, passed at a town meeting held on the 30th of November, 1863, together with the warning in pursuance of which the meeting was held.

<p>Assumpsit, brought before a justice and made returnable before him in the town of Morristown. On the return day of the writ in this suit before the justice, the defendant pleaded in abatement, that, at the time the plaintiff prayed out his writ in said suit and at the time the suit was commenced, the plaintiff resided in Fall River, in the county of Bristol, and state of Massachusetts; that the defendant then resided in Elmore, in the county of Lamoille ; that neither party resided in Morristown, and that the suit should have been brought and made returnable in said town of Elmore where the defendant resided. It was not claimed by the plaintiff’s counsel nor did it appear that the cause of action in said suit gave the plaintiff any right to bring said suit and make it returnable before a justice in said town of Morristown. The justice rendered judgment that said suit abate ; from which judgment the plaintiff appealed. The suit was entered in this court at the May term, 1868, and at that term and after the time provided by a rule of said court for filing pleas in abatement had expired, the defendant’s counsel suggested that the defendant was a minor under the age of twenty-one years, and that a guardian, ad litem, should be appointed to defend this suit — of which the plaintiff’s counsel had notice and did not object to such appointment. The court appointed Lewis Doty guardian as aforesaid, and within two days after the appointment of said guardian, and during said term, the defendant, by his said guardian and counsel, renewed said plea by filing a new plea in abatement for the same cause of abatement pleaded before said justice, claiming that the rule of court as to the time of filing pleas in abatement was not applicable to this case, and that the time within which such plea should be filed in this case commenced at the time said guardian was appointed. The action was continued, subject to said plea in abatement, to the December term, 1868, when the plaintiff’s counsel filed a motion to dismiss said plea in abatement, on the ground that it was not filed within the rule of said court. The action was continued to the May term of said court, 1869, subject to said plea in abatement and motion. The court, Wilson, J., presiding, at said last mentioned term, proforma overruled said motion and rendered judgment that the suit abate ; to which the plaintiff excepted.</p> <p>Rule eight of the Lamoille county court is as follows : “ All dilatory pleas shall be filed on or before the third day of the term at which the action is entered.”</p>

<p> Parties. Nonjoinder. Variance. Partners. Evidence. Motion to Pismiss. Plea in Abatement. </p> <p>The nonjoinder of a co-contractor as defendant, though he be a co-partner, is no ground of objection for variance, on trial of tho merits. Tire defendant can avail himself of such objection only by plea in abatement. If it turns out that th^gpurchase in question was made by the defendant on his own account alone, there would be no foundation for the motion to dismiss for such variance in fact or law. It makes no difference that the plaintiff understood that the defendant made the purchase in behalf of himself and others? or whether he so represented to the plaintiff at the time of the trade.</p> <p>Where two or more are sued together as partners, the declaration of one is not evidence against the others to prove the copartnership. But when the copartnership is proved by competent evidenco, if the contract in question is within the scope of the copartnership, what is said by one partner in negotiating the trade may be received to show whether the contract was made by him in behalf of the copartnership or on his own account.</p> <p>The question litigated before the jury was whether the goods were sold by the plaintiff to the defendant on thirty or sixty days’ credit. They were sold by the traveling agent of the plaintiff, who testified that he sold to the defendant on a credit of thirty days only? that he told the defendant that his employer never sold on a longer credit than thirty days, and that he had no authority to give him more than that, and testified that he did not agree to give him more than thirty days’ credit. The defendant had testified that the agreement between him and the agent was for a credit of sixty days. Held, that it was competent for the plaintiff to testify that it was the agent’s uniform habit and course of business to sell for cash, or on a credit not exceeding thirty days, and he was then and always had been under peremptory instructions not to give a credit exceeding thirty days*</p>

Assumpsit. Declaration, common count. Plea, the general issue. Trial by jury, May term, 1869, Wilson, J., presiding. The plaintiff by leave of the court filed an additional count for the same cause of action, it being for an enlistment by the plaintiff to the credit of the defendant town under a vote of said town, to which the defendant excepted.

<p>Criminal Law. Intoxicating Liquor. Statute, ( Gfen. Sts., ch. 31, § 63.) Appeal'.</p> <p>The provision of tho statute, (Gen. Sts., oh. 31, § 63,) that either party may appeal from tho judgment of a justice, applies in the case of a judgment upon a plea of guilty in a criminal prosecution.</p>

Assumpsit on a promissory note, dated Mareh 4,1867, executed by James H. Collins, as treasurer of the Boston Lumber Company, in behalf of said company, payable to the defendant Eassett or order at the Suffolk Bank three months from date, and purported to be endorsed by the defendant. In some of the counts the note was declared on as having been executed by the Boston Lumber Company, and in other counts as executed by James H. Collins.

Replevin, for unlawfully detaining fifty barrels of flour and fifty barrels of corn belonging to the plaintiff. Plea, the general issue. Trial by jury, September term, 1866. Wilson, J., presiding. Upon the facts set forth in the opinion of the court, and the note thereto, the county court ordered a verdict for the defendants, upon motion of the defendant’s counsel, to which the plaintiff excepted.

Indictment for perjury. To the indictment the respondent demurred, and the court at the March term, 1869, Prout, J., presiding, pro forma, overruled demurrer, to which decision the respondent excepted.

Action on the case, to recover for loss sustained by a destruction of tbe plaintiffs’ property by fire, alleged to have been communicated by fire from an engine of the defendants. Plea, tbe general issue and trial by jury, Marcli Term, 1869, Prout, J., presiding. The writ was dated February 12, 1867.

. Bill in chancery. The case was heard upon the bill, answer and testimony, at the March term, 1869, Steele, chancellor, and the bill was dismissed, from which the orators appealed. The substance of the bill and answer, and the facts established by the testimony, are stated in the opinion.

Trespass, q. c.f. Plea, the general issue. Trial by jury, September term, 1868, Steele, J., presiding. Special verdict for the defendant. Exceptions by the plaintiff. This suit was commenced January 38, 1866. The land in question is lot 64, 2d div., Brunswick, except the north twenty acres. .

<p>Audita querela. Plea, the general issue. Trial by jury, December term, 1867, Steele, J., presiding.</p> <p>It appeared that on the 5th day of January, 1860, this plaintiff brought a suit against this defendant, returnable before a justice of the peace at the plaintiff’s hotel on the 18th day of January, 1860. After the writ was served, the defendant tendered the plaintiff $10.50. The plaintiff took it. The -plaintiff’s evidence tended to show.that this money toas offered and received in full settlement of the suit. The defendant’s evidence tended to show that it was offered and received as a technical tender. The next day after the tender, the plaintiff learned that the defendant was summoning witnesses in the case, and notified him in writing that the suit was discontinued. On receiving this notice, the defendant called on the plaintiff for the costs he had made since the tender, and the plaintiff’s evidence tended to show that the defendant demanded a bonus above costs. The plaintiff refused to pay, and insisted that the suit was settled by the acceptance of the tender. The plaintiff notified the justice not to be present on the court day. The defendant notified the justice to be present. The justice was present at the hour and place on Vhich the writ was returnable, with the original writ, aDd called the case, and told the plaintiff he came at the defendant’s request, and that the defendant claimed costs. The justice had been paid his fees for signing the writ. The plaintiff told the justice the case was settled, and that he would have no court in his bar-room that day. The justice then went with others to the office of Mr. Judevine, who represented the defendant, and there entered up judgment on the original writ for the defendant to recover his costs, taxed at $25.12. The plaintiff testified that he saw the justice, Judevine, and some of the defendant’s witnesses, leave the hotel and go into Judevine’s office, but supposed they went there to disperse, and knew nothing of any judgment being rendered against him for more than six ■years. The defendent’s evidence tended to show that on the plaintiff’s refusing to have a court at his hotel, the court openly and publicly, on the suggestion of the defendant, adjourned to Mr. Judevine’s office. The plaintiff claimed that he was entitled to prevail in this action, because the judgment was entered up on the original writ; because the record of it did not mention the adjournment; because the suit had been discontinued. The court ruled all these points against the plaintiff. The plaintiff claimed that he should prevail if the jury should find that the case was in fact settled, but the court ruled this point also against the plaintiff. The plaintiff also claimed that if the plaintiff was not, in the opinion of the jury, in fact aware of the adjournment to Judevine’s office, he should prevail, even though the justice publicly and openly adjourned to that place, fhe court also ruled this point against the plaintiff, and among other things, told the jury that the only question in the case was whether the justice openly adjourned his court to Judevine’s office, and announced it so that the plaintiff, if he had been giving attention, could have known, it, and that if such was the case, the defendant would be entitled to recover, even though the plaintiff did not in fact know of the adjournment. To all which rulings and instructions the plaintiff excepted. Yer-dict and judgment for the defendant.</p> <p>maintained that the suit was discontinued, and the justice had no right to proceed further, and having rendered judgment after the discontinuance it will be set aside by audita querela. Paddleford v. Bancroft, 22 Yt., 529 ; Phelps v. Birge, 11 Yt., 161; Brown v. Stacy, 9 Yt., 118; Pike v. Sill, 15 Yt., 183 ; Crawford v. Cheney, 12 Yt., 567.</p>

Action in favor of the collector ‘of the town of Burke to collect a tax by trustee process. Plea, the general issue. Trial by jury, August term, 1869, Steele, J., presiding. Yerdict for the defendant. The question was whether, on the 1st of April, 1865, the defendant was so a resident of said Burke as to be liable to be listed there.

Bill in Chancery. The legal questions in the case arose upon the construction of the will of Isaac Decamp, late of Barre, who died on the 14th day of February, 1864. The portion of the will material to be stated, was as follows : “ Fourth, I also give and bequeath to my son John Decamp the use of $475, and the cow now on his farm, during his natural life, after the decease of my wife.

This was an action of replevin, for a logging chain. Plea, the general issue. Trial by jury, December term, 1867, Steele, J., presiding. The plaintiff himself testified that he saw the defendant take the chain in question off a sled on the premises where the plaintiff lived, and hand it to Charles W. Smith, a deputy sheriff; that the chain was worth five dollars, and was his property.

This was an indictment against tlie respondents jointly, for having in their possession certain implements and tools, to wit: one chisel and six skeleton keys, in violation of the provisions of section 8 of chapter 118 of the General Statutes. Flea, not guilty. Trial by jury, September term, 1868, Chittenden county, Pierpoint, C. J., presiding. The respondents, at the time of the commission of the alleged offense, and at the time of the trial, were husband and wife.

Assumpsit. The plaintiff’s claim was for boarding a schoolteacher, Miss Ann Shaw, fifteen weeks at $2 per week, during the summer term of 1866. Plea, the general issue. Trial by the court, August term, 1868, Grand Isle county, Steele, J., presiding.

This was an action of covenant broken. Plea that the defendant had not broken his covenants, or either of them, but has kept the same. ' Trial by court, December term, 1865, Orleans county, Wilson, J. presiding. The plaintiff presented, in evidence, a deed from the defendant, as administrator on the estate of Amos T. Norris, to the plaintiff, dated March 13, 1862. Also a quit-claim deed from Amos T. Norris and Amos T. Norris, Jr., to Phineas Page, dated January' 20, 1858.

Book account. Heard on the report of the auditor, at the June term, 1869, Orleans county, Steele, J., presiding. Judgment for the defendants Bisbee and Squires, to recover their costs, and for the plaintiff to recover of the defendant Black the sum of $479.39 and interest and costs. Exceptions by defendant Black. The facts found by the auditor are sufficiently set forth in the opinion.

Case, to recover for personal injuries sustained by the plaintiff, by reason of an alleged defect 'and want of repair of the highway in Essex,leading easterly from “Butler’s corner,” so called, through Essex Centre. Plea, the general issue, and trial by jury, April term, 1869, Pierpoint, C. J., presiding. The plaintiff testified: I am forty years old, I have lived in Essex since I was two years old.

This was an action of trespass for removing and appropriating a building claimed to belong to the plaintiff. Plea, the general issue. Trial by jury, September term, 1869, Pierpoint, C. J., presiding. Verdict for the defendants.

<p> Promissory Note. Trustee Process. Notice. Costs. </p> <p>' Where A hold a promissory note directly from the makers, and procured B to indorse it solely as an accommodation, and then sold it to O, and 0 notified B of his purchase, it was held to be such notice to the other parties to the note as would protect it in the hands of 0 and his assigns bona fide from attachment by trustee process by the creditors of A. (Gen. Sts., eh. 34, § 47.) The case is within the principle and reason of Ayott y. Smith and Tr. and Cl., 40 Vt., 532.</p> <p>Held that in the taxation of costs the trustees and claimants be allowed respectively only their actual travel, not for travel at those terms of court when they appeared only by attorney.</p>

This was an indictment for the larceny of a coat, one bracelet, two ear-rings and a breast-pin.

Case to recover for injuries to the plaintiff’s wife, and to his horse, wagon and harness, alleged to have been sustained in consequence of the insufficiency and want of repair of a highway in Richmond, which it was the duty of the town to keep in repair. Plea, the general issue. Trial by jury, at the April term, 1869, PierPoint, C. J., presiding.

Prosecution for a breach of the peace, before the city court of Burlington, on complaint of the state’s attorney, which chaTgedy. that O. Dwight Matthews of Burlington, in the county of Chittem den, on the 24th day of January, A. D. 1869, at said Burlington, with force and arms in and upon one Albert Wing did make an assault, and him, the said Albert Wing, did then and there with fists, clubs, sticks and iron instruments, strike, beat, bruise and wound, to the great injury…

.Assumpsit* to recover a town bounty of $600. Plea, tbe general issue. Trial by jury, September term, 1869, Pierpoint, C. J., presiding.

Assumpsit. Plea in abatement the pendency of a former suit, and replication that the former suit was discontinued before tbe commencement of this suit. Trial by jury, September term, 1869, PieRpoint, O. J., presiding. It appeared on the trial that on the 19th day of March, 1869, the plaintiff commenced a suit against the defendant, returnable to the April term of the county court, for the same cause of action embraced in the present suit.

Book Account. The court- at the April term, 1869, Pierpont, C. J., presiding, pro forma, gave judgment for the plaintiffs on the auditor’s report, to which the defendant excepted. The following is the auditor’s report: “ The plaintiffs are liquor dealers in New York City. Eor several years before they had any dealings with the defendant, they had agents in this state, who were in the habit of soliciting orders on the plaintiffs for liquors for town liquor agents.

Bill in Chancery. The bill alleges that the orators, James H. Hills, and his wife, M. D. Hills, of Burlington, on the 19th day of March, 1863, executed and delivered to Edward C. Loomis, a deed of a certain piece of land in Burlington, therein described, which deed, though in terms absolute, was executed for the purpose, and with the understanding on the orators’ part, of securing said Loomis for such sum or sums of money as ho had paid, or might thereafter pay, to satisfy a…

This was an action of assumpsit before tbe recorder’s court of tbe city of Burlington, and came into tbe county court by appeal. Plea, tbe general issue. Trial by jury, April term, 1869, Pier-point, C. J., presiding.

Troyer. This action was brought before a justice of the peace, by whom judgment was rendered for the plaintiff, from which judgment the defendant appealed to the county court. The defendant neglected to enter his said appeal in the county court, and the plaintiff, at the next term after said appeal, filed in the said court a copy of said justice’s judgment, and a complaint in writing, praying that said judgment be affirmed.

<p> Impounding Cattle. Replevin. </p> <p>The plaintiff’s cow having broken into the defendant’s pasture through a defective fence that the plaintiff was bound to repair, the defendant had a right to impound her, and by proper proceedings could have perfected a lien upon her for the damage done on that occasion; but ho had no right to drive the cow to his own premises, and keep her there until the damage done by her on that and previous occasions should be paid, and replevin may be brought and maintained for such taking and detention.</p>

<p> Slander. Damages. Evidence. </p> <p>Charges other than those stated in the declaration, hut of a similar character, may he proved in an action for slander, not as a substantive ground of recovery, hut as tending to show malice.</p> <p>In an action of slander, it is competent for the jury, on the question of damages, to ' take into consideration the fact that the defendant, in his ploadings in the case, has reiterated the statements, and attempted to justify them on the ground that they are true.</p>

General assumpsit for money had and received, money paid, etc., and trial by the court, September term, 1868, upon the following agreed statement of facts: That the said city of Burlington had duly accepted the act of incorporation, and the acts in amendment thereof, and had organized under the same, prior to the year 1866 ; that on the first day of April, 1866, the plaintiff was a resident of said city, that in the same year he was set in the grand list of said city, by the…

Assumpsit to recover a town bounty. Plea, the general issue, and trial by jury, September, term, 1869, Wilson, J., presiding. The declaration contained a special count upon a vote of the defendant town, passed December 2, 1863, and also the general , counts.

Assumpsit to recover a town bounty of four hundred dollars. Plea, the general issue. Trial by jury,-term, 1869, Pier-point, C. J., presiding. The facts are fully stated in the opinion of the court, except in respect to the knowledge of the selectmen as to re-enlisted men being applied on the quota under the call of October 17, 1863.

<p>Assumpsit to recover a town bounty. Plea, the general issue. Trial by jury, December term, 1869, Pierpoint, C. J., presiding.</p> <p>The plaintiff introduced in evidence a certified copy of “ General Order No. 2,” dated November 2, 1863 ; a certified copy of warning and proceedings of a town meeting in Starksboro, held on the 19th day of December, 1863, by which it appeared that the defendant town, under a proper article in the warning, adopted the resolution set forth in the syllabus above ; also a certified copy of warning and proceedings of a town meeting in Starksboro, held on the 4th day of December, 1863, the warning being dated.November 23, 1863; also a certified copy of the town credit-books in the adjutant general’s office, by which it appeared that the plaintiff and four others re-enlisted to the credit of the defendant town, on the 16th day of December, 1863, and were the first five men to enlist and be mustered in to the credit of said town, after October 17, 1863. This paper was objected to by the defendants, but admitted, subject to its legal effect, etc.</p> <p>The plaintiff also gave evidence tending to prove his former enlistment and service, etc., and that on the 15th day of December, 1863, he re-enlisted at Brandy Station, and caused himself to be credited to Starksboro; that he was mustered in on the 22d or 23d, and the muster was dated back to the 16th of December ; that before he enlisted he had a letter from one Eddy, who lived in Starksboro, and was the agent of the plaintiff to draw his state pay, informing him that the town of Starksboro was paying $300 each for recruits ; that afterwards, and the night before he was mustered in, he was told that one Cook, who was a captain in the same regiment, had written to Mr. Hawkins, one of the selectmen of Starksboro, to enquire what bounty that town was paying, and had received a reply stating that they were paying $400. And said Ooolc testified that he did write such a letter, at the instance of some one other than the plaintiff, and did receive such a reply, which was lost. That he, the plaintiff, then received a furlough, and went to Starksboro, where he saw Hawkins on the 1st of January, 1864, and told him that he had re-enlisted to the credit of Starksboro, and claimed the town bounty; that Hawkins said the quota was not full, lacking one or two men, and he would see if re-enlis.ted men would be allowed to count on tbe quota, — that he did not know whether they could; that on the 4th of January he saw Hawkins again, who then said the quota was full, but perhaps some one would be rejected, so the plaintiff could have a chance; that when the men so. enlisted came to be mustered, one or two were thrown out, but the quota was immediately filled by other men, and on again applying to Hawkins, he said that he had been to Capt. Dunshee, the superintendent of recruiting for that district, and had learned that re-enlisted men would not be allowed to count on the quota, and so they had filled it up ; that plaintiff subsequently demanded his bounty, which the town refused to pay. It was not claimed that Eddy was an officer of the town, or authorized to act for the town, or that any intercourse took place between the plaintiff, or any one in his behalf, and the authorities of the town, previous to his enlistment.</p> <p>Upon this evidence, and without going into the evidence on the part of the defendants,'the court directed a verdict for the defendants, to which decision the plaintiff excepted.</p>

<p>• Assumpsit to recover a town bounty of six hundred dollars. Plea, the general issue. Trial by jury, June term, 1867, Steele, J., presiding.</p> <p>The plaintiff testified as follows :</p> <p>“ I enlisted in the United States navy, May 1, 1861. Lived in Lyndon. Enlisted at Portland for three years, on the Minnesota. Had no government bounty. Served under that enlistment until November, 1861. Was then discharged and re-enlisted. I was then transferred to the Lockwood. In August, 1864, was on the Lockwood in Albemai’le Sound, North Carolina. I learned that Lyndon was giving bounties to volunteers. My wife lived in Lyndon, and I kept up a correspondence with her. My wife principally had charge of my business. I sent word to her that I had never been credited to any state or town, and that I wanted to be credited to my own town. This was soon after this call. I held no commission. I was at liberty to put my name on any quota I pleased. I sent word to be credited to Lyndon on this call. Other men in the navy with me were credited under this call by writing home to their wives, and-got return that they were credited and got their town bounties. Was discharged in March, 1865. I saw Mr. S. S, Thompson, one of the selectmen of Lyndon, but not until some time after I came home. He said he went to Boston, and went on board ship and got my name. Said he could have had $800 for it before he got off the ship, but it was no object; that I counted that much to the town of Lyndon. Don’t know what became of the letter I wrote my wife. I don’t know who the town officers of Lyndon were. They never made any agreement with me to pay me. When I Went out in 1861, nothing was said about credit.</p> <p>Mrs. Abram Hicks testified. — I am wife of the plaintiff. In July, 1864, my husband wrote me about getting him a bounty. 1 carried the letter to George Weeks, to have him credited to Lyndon. Don’t know what became of the letter; can’t find it. Don’t recollect ever taking it from Mr. Weeks.</p> <p>George H. Weeks testified. — I heard Mrs. Hicks testimony. Remember the letter. Remember her bringing me one of his letters, in which he said he desired to be- credited to the town under the call. I may not have returned it; my impression is I did return it. Think this was in the year 1864. Know we were paying-large bounties then, but don’t know the date.</p> <p>Mr. Mattocks, of Lyndon, testified. — Mr. Thompson said he went on board the vessel in Boston, and got the plaintiff’s name, and had him credited to Lyndon. I understood from somebody he was offered $800 for the name. Not certain but it was Hicks that said so. Think I heard from Thompson that it saved the town $800, or something like that.</p> <p>. S. S. Thompson testified. — I was one of the selectmen in 1864, chairman of the board. Our quota (in Lyndon) under the call of July, 1864, was twenty-four, and we were so behind on previous calls as to make in all forty men. I helped fill the quota. Quota was to be filled, I think, in September. We no more than filled our quota; no excess of men. Got some credit from the state afterwards. Government did not credit sailors until 1868, or 1864. Two sailors had gone from Lyndon. Found the plaintiff’s name on the Ohio. Passed his name to Ide, (another of the selectmen of Lyndon,) and he was credited to the town on the quota.</p> <p>Cross examined. — The clerk of the ship told me I ought to pay him liberally for his trouble in giving me a certificate of the plaintiff’s service, for the certificate was worth $800. I never offered to pay Hicks anything, or agreed with any one that we would. None of the selectmen did as I know of. Didn’t see Hicks when lie was home on leave.</p> <p>Re-examined. — We paid bouties under the call of July, 1864, as we could trade with men. Generally paid $600 for one year men. Average bounty we paid during the war was $600 or $700 a man.</p> <p>The plaintiff introduced a record of the warning and proceedings of a town meeting of August 6, 1864 ; and the certificate of the adjutant general, showing that the plaintiff applied on the quota of Lyndon, under the call of July, 1864. The vote passed at said meeting was the one upon which the plaintiff claimed a bounty, and is stated in the opinion of the court.</p> <p>The foregoing, with the papers mentioned, was the entire testimony on behalf of the plaintiff, upon the introduction of which the plaintiff rested his case. The court thereupon without further hearing directed the jury to render a verdict for the defendants to recover their costs, to which the plaintiff excepted.</p>

<p>This was an action of trespass and was heard upon general demurrer to the defendant’s plea in bar, June term, 1868, Steele, J., presiding. The plea was adjudged sufficient, and judgment rendered for the defendant- to recover his costs. Exceptions by the plaintiff.</p> <p>The declaration averred in substance that the defendant on the 9th day of February, 18,66, without legal cause imprisoned the plaintiff in the jail at-St. Johnsbury. The defendant claimed that he arrested and imprisoned the plaintiff upon due process of law, and in his plea in bar set out not only the execution upon which the arrest was made, but also the judgment on which it issued, together with the writ, declaration and proceedings in the suit in which the judgment was rendered, he being the plaintiff therein. The writ and declaration in said suit, as set out in said plea, was as follows:</p> <p>• “ By the authority of the State of Yermont, you are hereby commanded to attach the goods, chattels or estate of George W. Hunt, of Danville, in the county of Caledonia, to the value of ten dollars, and him notify thereof according to law; and Mm notify to appear before me at the dwelling-house of John Gould, in Dan-ville, in the county of Caledonia, on the eighth day of February, A. D. 1866, at ten o’clock in the forenoon ; then and there to answer unto J. B. Burdick, of. Danville aforesaid, in a plea of the case for that the said plaintiff being the owner and having in his possession a certain lumber-wagon, and that the defendant having entered the plaintiff^ close, December 26, 1866, and without any right or permission from the said owner, took the same and converted it to Ms own use;. thereby breaking, bruising and defacing said wagon so as to render it to the plaintiff useless, and the plaintiff avers that in the repairing of said wagon and for theloss of the use of the same great expense was incurred to him, to wit, the sum of eight dollars; yet, though requested, the said defendant .has not paid the sum but neglects and refuses so to do, to the damage of the plaintiff ten dollars, for the recovery of which,” etc.</p> <p>From the return of the officer as set out in said plea,'it appeared that the writ was served February 1, 1866, by attaching a stick of wood as the property of the defendant, and delivering him a copy of the writ; it also appeared that the execution, issued on the judgment rendered in said suit, was directed against the body of the defendant, and by authority of this execution the defendant therein, the plaintiff in this suit, was arrested and imprisoned, which is the assault and imprisonment complained of.</p> <p>Thomas Bartlett, for the plaintiff, maintained that the execution should have followed the writ and been issued against the property only. Wright v. Hazen, 24 Yt., 143.</p> <p>Bliss N. Davis, for the defendant, maintained that under section 4 of page 364 of the General Statutes, Burdick had a right to an execution against the body of Hunt, and the same was a justification for the arrest. Previous to 1839 the debtor was liable to be committed on contract as well as tort. By the act of 1839 the law was altered as to contracts, and the debtor’s body was free from arrest, but so far as torts were concerned the law remains as before. The debtor has no reason to complain that the plaintiff does not take advantage of the utmost rigor of the law in the outset. 6 Fisher, (N. H.,) 117.</p>

Bill in Chancery. The orator alleges in the bill that he, on the first day of April, 1866, was the owner of about twenty acres of land in St. Johnsbury, situated on Caledonia street, on which land was a dwelling-house in which he then resided ; and also on said land was a valuable spring of water on the east side of said street, and about twenty rods from the dwelling-house, situated on the west side of said street, which spring of water was carried by an aqueduct to said…

Assumpsit to recover town bounty. Tried by the court, upon a case stated, at the June term, 1869, Steele, J., presiding. Judgment pro forma that the plaintiff recover the sum of f 495 damages and his costs ; to which the defendants excepted.

Indictment for burglary alleged to have been committed by Aaron Clark, tbe respondent, upon the premises known as the Central House, a hotel in the village of Rutland, owned and kept by John W. Oramton and John A. Salisbury, the family of said Salisbury living within said hotel.

Bill in Chancery. The bill set forth that the orator was the owner -of a valuable slate quarry, situated in Eairhaven, in the county of Rutland; that on the 24th day of February, 1859, he leased a certain portion'thereof to the defendant Jones,- by lease in writing, thereby giving said Jones the right to quarry and manufacture slate therefrom at a certain price per square, the orator agreeing to haul said slate to the railroad depot and reserving a lien thereon to secure the…

Audita Querela. Plea, the general issue. Trial by jury, March term, 1869, Prout, J., presiding. The plaintiff was a soldier in the 7th Vermont regiment, and was out of the State from the fall of 1861 untii the spring of 1866, except that he was at home once on a furlough, as hereinafter stated.

Scire Facias, to recover the sum of one hundred and eighty dollars and interest, awarded the plaintiff as land damages in a proceeding laying out a highway across the plaintiff’s land. Plea, nil debit, and notice of special matter in defense. Trial by court, March term, 1869, Prout, J., presiding.

This was an appeal from the decree of tbe probate court, for the district of Manchester, allowing and establishing an instrument presented for that purpose, as the last will and testament of png John Robinson, late of Winhall, in said district, deceased.

Trespass quare clausum fregit, whereby the plaintiff claimed to recover for the cutting of a certain elm tree, and for damages occasioned by the eating and destroying by cattle of the grass and herbage growing on a close of the plaintiff, in Bennington, on the 5th day of September, 1865, “and on divers other days and times between that day and the commencement of this suit,” — the said acts of trespass being alleged to’ have been committed by the defendant. Plea, not guilty.

Trespass q. a. f. for damage upon lands in Rupert. Plea, the general issue, and trial by jury, December term, 1867, Prout, J., presiding.

Book account. The auditor reported as follows : “ Upon hearing and examining the same, (referring to the accounts presented by the respective parties,) I allow the plaintiff’s account at the sum of forty-one dollars and ninety-one cents, and the defendant’s account at the sum of fourteen dollars. I find a balance of twenty-seven dollars and ninety-one cents due from tbe defendant to the plaintiff to balance book accounts between them.

This is an action of ejectment for certain lands in Jamaica, and was submitted to the court' upon the following agreed statement of facts: “ The plaintiffs are husband and wife. The defendant was the husband of Almena Bourn, formerly Almena Ingram, daughter of Samuel Ingram. The wife plaintiff is the daughter of the defendant and said Almena, who were the parents of five other children all now living.

This is an order of removal of one Mary Emily Davidson from Wilmington to Jamaica. Held: that the order of removal made by the justices is the first step in the pleadings, and stands in the place of the declaration, but that order is the judgment of the justices, and the appeal vacates it. Dorset v. Manchester, 3 Yt., 370 ; Rupert v. Sandgate, 10 Yt., 278 ; Dorset v. Rutland, 16 Yt., 419.

General Assumpsit. The case was referred and the referee reported as follows: “ Upon the trial the plaintiff exhibited a specification of his claims, introduced evidence tending to support them, and rested ; the defendant then exhibited a specification of his claims in offset, introduced evidence tending to support them and rested; the plaintiff then offered evidence to prove claims, not in his specification, in offset to the defendant’s offset; the defendant objected; the…

Assumpsit against the defendants as common carriers, heard on the following agreed statement of facts : “ On the 28d day of February, 1867, the plaintiffs were engaged in the rag and paper stock business at Brattleboro, Vermont, and one John Collins then was, and for some time previous thereto, had been in their employment in that business.

Action for tbe breaclr of a covenant to pay rent, contained in a lease, under seal, of a cbair-factory, saw-mill, tools, etc., from tbe plaintiffs to tbe defendant, dated August 20, 1862, for two years from date, at a rent of $150 for tbe first year and $200 for the second year, tbe defendant therein covenanting to pay $30 of the first year’s rent to one Livermore, and to endorse the balance thereof, $120, on certain notes he held against said Elon &., called the Shumway…

Trespass on the case, for obstructing a way to the plaintiff’s grist mill. Plea, the general .issue. Trial by jury, September term, 1868, Barrett, J., presiding.

Wiser, one of the appellants, and the wife of the other appellant, her claim to a distributive share in the estate of Sumner Lockwood deceased, as the widow of said Lockwood, under section 1 chapter 56 of the General Statutes. The case was referred by the county court by agreement of parties.

Assumpsit to recover a town bounty. Plea, the general issue. Trial by the court, December term, 1869, Barrett, J., presiding. The plaintiff declared upon, and claimed to recover under a vote passed at a town meeting, held March 11,1865 ; and he subsequently filed an additional count in which he claimed to be entitled to recover upon a vote passed at a town meeting, held December 31, 1863.

Case for passing over land of tbc plaintiff to avoid paying toll, etc. Plea, tke general issue. Trial by jury, December term, 1869, Barrett, J., presiding. The existence and organization of tbe plaintiffs as a corporation was conceded. Their charter and by-laws and book of records were produced and given in evidence.

This was an action on a promissory note, dated March 10, 1868, payable to Martin & Perry, with interest annually, on demand, for $76.98. Plea the general issue. Trial by jury, and verdict for the defendant, December term, 1869, Peck, J., presiding. The plaintiff introduced the note, and proved the execution of it, and rested.

Trespass on the case. Plea, the general issue. Trial by-jury, June term, 1869, Peck, J., presiding.