Volume 43 — Vermont Reports

Case for disturbing an aqueduct. Plea, not guilty. Trial by jury, December term, 1869, Barrett, J., presiding.

Petition, to foreclose a mortgage. The cause was referred to a master in chancery to find what was equitably due on the mortgage. At the December term, 1869, Barrett, Chancellor, the master reported in substance as follows: That the sum claimed as due by the orator from Comings the defendant, on his mortgage, October 19th, 1869, is $590.70. This is the correct sum called for by the notes and mortgage.

<p> Criminal Law. Bigamy. Evidence. Handwriting. </p> <p>A paper purporting to be a marriage certificate of a marriage in another State, signed by a person as justice of the peace, is not alone competent evidence of the marriage, and should be excluded in a trial for bigamy. To make it proof of a former marriage, there should be additional evidence that there was such person who was a justice, and that by the laws of that State a justice has authority to solemnize marriages, and that the signature to the certificate is genuine. Knowledge of the presiding judge of the statute of such State, in rospect to the authority of justicos, is not proof. The statute must be produced.</p> <p>Proof that a letter, in reply to one sent .to the address in the certificate, had the same signature as the signature of the certificate, does not prove the genuineness of the latter, the signature to the letter not being admitted or proved to be genuine.</p> <p>In a trial for bigamy in which the respondent admitted a previous marriage ceremony but claimed it was a mock ceremony, a letter from the respondent to the woman claiming the previous marriage, which tended to show how he regarded the ceremony and that it was not a mock ceremony, held admissible.</p>

<p> Principal and Agent. Ratification. </p> <p>The defendant authorized F. to dispose of the defendant’s horse, and have all he could get for it over $175? at the same time telling F. he would take a white-faced mare owned by the plaintiffs at $15. Subsequently F., in pursuance of that authority, disposed of the horse to the plaintiffs for said maro and the plaintiffs’ note of $137.50, provided the defendant would take the note; and F. and the plaintiffs thereupon informed the defendant of the terms of the contract, and the defendant consented thereto and took said note payable to himself. The plaintiffs claimed that F., in the sale, warranted the horse sound. The defendant denied that F. acted as agent in the transaction. Held that F. in his contract with the plaintiffs acted as agent of the defendant, and the county court erred in submitting it to the jury to find whether F. was said agent, or whether the defendant ratified his act.</p> <p>If one acts for and in behalf of another, it is immaterial to the question of agency, so far as third persons are concerned, whother he acts by his direction and request, or by his permission meroly; he is equally his agent in both cases.</p>

<p> Trover. Conversion. Innkeeper. Railment. </p> <p>There is no general rule of universal application as to the right of a bailee to use property while in his keeping, but generally cases must be governed by thoir own partioular oircumsfcancos in the absence of any contract for the use.</p> <p>Where, soon after a horse and wagon and other articles were left with an inn-keepor to he kept for a few days, he had good reason to believe that the person leaving the horse, &c., did not own it and had abandoned it and was acting in had faith towards the owner, and the inn-keoper did not know who, or where the owner was, and the owner, as the inn-keeper had reason to believe, did not know where the property was, it was held that the inn-keeper had the right to use the property moderately and prudently to the extent of compensating him for his charges for keeping; and such use, being lawful, was not a conversion.</p> <p>But having used the property sufficiently for this purpose, a demand by the owner and refusal by the inn-keeper, was a conversion which sustains the action of trover; and the question of the inn-keeper’s lion upon the proporty, for charges incurred in respect to it, may be tried in defonso of this action.</p>

<p>Trespass and case. Plea, not guilty and notice. Trial by the Court, December term, 1869, Barrett, J., presiding.</p> <p>It appeared that early in August, 1868, the plaintiff tracked and found a swarm of bees in a tree growing on the land of Ira Burton in Norwich; and in a few days informed said Ira of the fact, and that he intended to cut down the tree and get the honey, —to which said Ira made no objection,—he supposing that the finder of a bee tree, on the land of another, had a right to take the bees and the honey ; and he so said to the plaintiff. It did not appear whether he would have made objection if he had not so supposed. He made no claim in respect to the bees or the honey that might be in the tree ; and though he was given by plaintiff to understand in what region on his land the supposed bee tree was, he did not know in what tree the plaintiff supposed the bees were.</p> <p>A day or two after this, and early in the morning of tho 3d of August, 1868, the plaintiff, with Pineo to help him, went to the tree, and they were in the process of chopping it down, for tho purpose of getting the honey, claiming the right to do it, when the defendant, Henry Burton, with the defendant Thompson, acting for and under him, having heard that the plaintiff had found a bee tree in that vicinity, were out trying to find it, for the purpose of cutting it down and getting the honey. They saw the plaintiff and Pineo at work chopping the tree; whereupon they went to the tree, knowing the claim of right, on the part of the plaintiff, and the defendant Burton interposed himself in such a way as to prevent the plaintiff from chopping more upon the tree, and to cause him and Pineo to give up the attempt further to cut it down. And said Burton proceeded at once—with Thompson, helping him—to finish the work that the plaintiff and Pineo had begun, of chopping it down. And they found the supposed swarm of bees in it, and 150 lbs. of honey ; which honey they took and carried away, and the said defendant Burton used it for his own purposes.</p> <p>The defendant Burton, after hearing that the plaintiff had found a bee tree in that vicinity, and desiring and intending to cut it down and get the honey, if he could find it, told his brother, the said Ira, of his desire and intention, "just before he went out as aforesaid to try to find the tree,'—-and said Ira expressed consent that he might do so, said Ira not interesting himself in any way in the matter, by claim or otherwise in his own behalf, or as between the plaintiff and the defendant Burton, and knowing that the plaintiff supposed that he, the plaintiff, had a right to get the honey, by reason of having tracked the bees and found the tree.</p> <p>The court rendered judgment for the plaintiff for $32.40 and his costs. To this the defendants excepted.</p>

Book account, brought by appeal from the judgment of a .justice of the peace, and referred to an auditor, who reported for the plaintiff to recover a balance of the defendant. The defendant filed exceptions, which the county court overruled and rendered judgment on the report for the plaintiffs,-—to which the defendant excepted.

Action of replevin, entered in the county court, May term, 1869, Barrett, J., presiding, in which the defendant filed a motion to dismiss, and a plea in abatement. The plaintiff demurred to said plea, but made no point in respect to it, except that the writ, return, and bond were.not defective, and were sufficient in law. The court, on said motion and plea, dismissed the suit.

Bill in Chancery. This suit was brought to recover certain real estate which the orator’s intestate conveyed to the defendants in 1841. Held: under said deed, the sole and exclusive possession and occupancy of the farm, claiming title thereto, adversely to all the world, for twenty-five years, and this action is barred by the statute of limitations.

Book account. The auditors, to whom the case was referred, reported that the plaintiff’s account was for shingle sold to the defendant in 1853, by the firm of Hutchins, Buchanan & Co.; that James Buchanan is the only surviving partner, the other members of the firm having died in 1858 and 1859 ; that at the time of the sale of the shingle, John E. Chamberlin, Robert and Horace Morse, as partners, were in process of building the White Mountain Railroad, under a contract, and…

Trustee process. This case was heard on report of commissioner as to liability of trustee at the June term 1869, Peck, J., presiding. The court rendered judgment that the trustee is chargeable for the funds in his hands, to which the claimant excepted. The facts found by the commissioner ere sufficiently stated in the opinion.

Assumpsit, to recover the sum of three hundred dollars, pursu- . ant to a vote of the town of Chelsea on the 24th day of July, 1863. Plea, the general issue, and trial by the court, December term, 1869, Peck, J., presiding. The plaintiff was drafted from the town of Chelsea in August, 1863. The following- votes of said town were introduced : Town Meeting, July 25, 1863.

<p> Statute of Limitations. Payment. Promissory Note. </p> <p>An agreement to talco certain articles of property in existence towards the payment of a note operates as payment for the purposes of the statute of limitations, from the time of the agreement, and not from a subsequent time when the holder of the note actually obtains the property and endorses it on the note, the other party not haying agreed to carry it to the holder of the note, and having done nothing to prevent his getting it at any time, and the value being less than forty dollars.</p>

<p>Assumpsit as per declaration, which is set out in the opinion of the court. Trial on general demurrer to the declaration,- at the March term, 1870, Peck, J., presiding. The court, pro forma, adjudged the declaration insufficient, and rendered judgment for the defendant to recover his costs. Exceptions by the plaintiff.</p> <p>cited Fletcher v. Harcut, Hutton Rep., 65 ; Chitty on Contracts, 503-504; Betts et al. v. Gfibbons, 29 Eng. Com. Law, 57; Adamson v. Jarvis, 13 lb., 403; Wooley v. Batte, 12 lb., 417; Stone v. Hooker, 9 Cowen, 154; Ives v. Jones, 3 Iredell, 538 ; Avery v. Halsey, 14 Pick., 174. And to the point that a party may indemnify himself against the consequences of an unlawful act already done, Eneeland v. Rogers, 2 Hall, 579 ; Haskett v. Tilly, 11 Mod., 93 ; Smith et al. v. Barstw, 2 Doug. Mich., 155; Armstrong v. Toler, 6 Curtis U. S., 587; Hall v. Huntoon, 17 Vt., 244; Griven v. Briggs, 1 Caines, 450.; Boty'y. Wilson, 14 John., 377 ; Williamson v. Henly, 19 Eng. Com. Law, 299.</p> <p>cited Spaulding v. Oakes, 42 Vt. ; 2 Smith L. Cases, 393 [337] and notes ; Colburn v. Putnam, 11 Compt., Mees. & Ros., 73, and cases there cited ; Merryweailer v. Nixan, 8 T. R., 186 ; Shackell v. Rosier, 2 Bing. N. C., 634; also in 29 Eng. Com. L., 695; Fivaz v. Nicholls, 52 Eng. Com. L., 501, and cases there cited; Achison v. Miller, 18 Ohio.(0. S.), 2 Ohio, (N. S.), 1; Cumstony. Lambert, 18 Ohio, 81; Moore v. Appleton, 26 Ala., 633 ; Bavis v. Burnett, 4 Jones’ Law (N. C.), 71; Railey v. Bussing, 28 Conn., 455; Hilliard on Torts, 179,185, 195, note a, and cases there cited ; Or egg v. Wyman, 4 Cush., 326 ; Toler v. Armstrong, 4 Wash. C. C., 297, and 11 Wheaton, 258.</p>

Action of assumpsit, commenced January 1st, 1866, in which the plaintiff claimed to recover the amount of two promissory notes given in evidence. (See same case, 42 Vt.) Pleas, the general issue and statute of limitations. Trial by court, March term, 1870, Peck, J., presiding.

Indictment against the respondents for neglecting and refusing to furnish liquor to the agent of the town of Plainfield. The case was tried on general demurrer to the indictment, at the September term, 1869, Peck, J., presiding. The court decided the indictment sufficient, to which decision the respondents excepted.

<p> Petition for Partition. Power of Commissioners. Jurisdiction. </p> <p>Commissioners appointed to mate partition of land are not empowered to determine any question of right, title, or interest as between the parties among whom they are to mate the proposed partition. That is to be done in the county court, preliminary to the judgment for partition.</p> <p>The commissioners in this ease properly refused to hear evidence that certain buildings on the land to be divided were the property of the defendant as against the other parties entitled, and were not part of the realty; and, having reported that they had disposed of the property, under their commission, according to the right of each of the owners as it had been adjudged, the county court properly made the same refusal.</p>

Scire pacías against a surety on a recognizance in a criminal proceeding, (a liquor prosecution). The case was tried on general demurrer to the declaration, at the September term, 1869, Peck, J., presiding. The court decided the declaration sufficient, and chancered the bonds to the amount of the sentence and costs, to which the defendant excepted. The substance of the declaration and facts is stated in the opinion of the court.

Trover, for seventy-five loads of manure, alleged to have been converted by the defendant, on the 15th day of March, 1868, of the value of $100. The action was commenced before a justice of the peace, and came to the county court by appeal. The writ is dated March 28, 1868. Plea, the general issue. Trial by jury, September term, 1869, Steele, J., presiding.

This was an action of trover for a joint and several promissory note, given for $35.00, dated November 7, 1856, signed by the plaintiffs, and payable to the defendant. Plea, the general issue, and trial by jury, March term, 1867, Prout, J., presiding.

<p>This was an action of replevin for one horse, taken by the defendant on the 13th of July, 1868. The defendant justified the taking under an avowry that he was collector of School District No. 8, in the town of Concord, for the years 1866, 1867, and 1868, and that said horse was taken by him to satisfy taxes assessed in said school district for said years. The plaintiff’s replication was, that said taxes were improperly assessed against him. Said issue was tried by the court at the March term, 1870, Steele, J., presiding. Said taxes were assessed upon the poll of the plaintiff in District No. 8, and the only question made by the plaintiff against the legality of said taxes was, that he was not an inhabitant of District No. 8, and that he was not liable to taxation in that district, but that he was an inhabitant of, or had his residence in, District No. 7, in Concord, and that he was liable to taxation for school district purposes in District No. 7.</p> <p>Upon the facts found on the trial, which are fully stated in the opinion, except that it also appeared that tho defendant all the while claimed Ms residence to be in No. 7, the court rendered judgment for the plaintiff for one cent damages and Ms costs, to which the defendant excepted.</p>

Action, assumpsit. Plea, the general issue. Trial by jury, March term, 1870, Steele, J., presiding. On trial the plaintiff proved in evidence a note, of which the following is a copy : “ $300—Montpelier, Vermont, Oct. 28, 1867. One year after date I promise to pay Stephen Van Dresar, or bearer, three hundred dollars, payable at the first National Bank of Montpelier, Vt., for value received with interest. N. S. Stevens.” [U. S. Infc. Rov.

Scire facias against the defendant as the bail' of one Moody. Trial by the court, March term, 1870, Steele, J., presiding. Plea, mil tiel record ; which issue on inspection was found for the plaintiff. The defendant also gave notice of special matters: 1st. That there was no affidavit, as required by law, filed with the authority issuing the execution. 2d. That the defendant delivered up the said Moody to the court in discharge of himself as bail.

Assumpsit, for goods sold and delivered, and other general counts. The trial was by jury, at the May term, 1870, Steele, J., presiding. Verdict for plaintiff.

Action of ejectment, to recover the possession of 55 square rods of land, being part of lot No. 63 in the second division in Brunswick. Plea, the general issue. The plaintiff put in evidence the following record title : 1st. A judgment recovered before the Essex County Court, September term, 1865, in favor of said W. R. Danforth v. A. W. ‡ J. T. Moore, for $301.01 damages, and $18.50 costs.

Bill in chancery. At the session of the Legislature of the State of Vermont in October, 1866, a charter was granted to certain persons, therein named, to construct a railroad from the village of St. Johnsbury to the village of Montpelier in this State.

<p> Appeal from Justice of the Peace. Security. Recognizance. </p> <p>The security roguired by way of recognizance, from the appellant ior an appeal from the judgment of a justice of the peace must be furnished by some person other than the party appealing. A recognizance as follows : “John McLellan” (who was the appellant) “ as principal and $50 cash deposited with the court to respond as surety, recognized to plaintiff in the sum of $50,” &c., held insufficient under our statute. Wheeler, J., dissenting.</p>

<p>Assumpsit. Plea, the general issue. Trial by jury, June term, 1870, Steele, J., presiding. Verdict for plaintiff.</p> <p>Some three weeks before January 28, 1869, the defendant exchanged cows with one Sleeper. This led to litigation br'ween them. On the 28th January, 1869, while that litigation vas pending, the plaintiff, who was working at Sleeper’s, met defendant and entered into conversation about the cow transaction, and remarked that both cows were not worth $35. The plaintiff’s evidence tended to prove that defendant insisted the cow he let Sleeper have was worth $10, and told plaintiff he would give him that for her if he would deliver her to him in as good condition as she was in when Sleeper bought her ; that witness was called to the offer, and plaintiff went away expressing his intention to get the cow and drive her to the defendant the next day. Plaintiff then proceeded to Sleeper’s, bought the cow for $15, and the next morning, January 29, 1869, drove her to defendant’s and put her in defendant’s barn-yard, and notified defendant’s wife what he had done, the defendant himself being absent. The defendant, on his return home that day, learned what was done, and, after eating his dinner, drove over to the house where the failer of the plaintiff lived. Defendant did not find plaintiff there, but did find plaintiff’s failer, and notified him he should not accept the cow, and that he wanted plaintiff to take her away, and requested him to inform plaintiff when he should see him. Defendant was informed by plaintiff’s failer that he didn’t expect to see plaintiff for a week. Plaintiff usually lived with his failer, but was then working for Sleeper. Plaintiff’s evidence tended to prove that plaintiff’s failer told defendant his son was at Mr. Sleeper’s, who lived in the vicinity. Defendant’s evidence tended to show that no such information was given him, and that he did not know where to look for plaintiff. Defendant did not see plaintiff till he met him at the justice court between him and Sleeper, February 8, 1869. Defendant then notified plaintiff he should not take the cow. Plaintiff’s evidence tended to prove that the cow was in as good condition when driven to plaintiff’s as when Sleeper bought her. Defendant’s evidence tended to prove the contrary. The defendant insisted that the contract was within the statute of frauds. The court ruled, and told the jury, that.plaintiff could not recover unless defendant accepted the cow; that it was defendant’s duty to do all that was reasonable and practicable to notify plaintiff that he declined to accept her, and if he had waited till February 3d before endeavoring to notify him, the delay would have amounted to an acceptance. But as he did not wait, but proceeded to plaintiff’s failer’s, to see plaintiff and notify him, the question was, what information he received there. If such as he claimed, then he was guilty of no laches, as he would not know where to look for the plaintiff for a week, and he saw plaintiff and notified him within that time. On the- other hand, if defendant there learned he could find plaintiff at Sleeper’s, (where he actually was,) and instead of going or sending to Sleeper’s, waited till February 3d before notifying plaintiff of his non-acceptance, the delay would amount to an acceptance of the property, and defendant would be liable. To all which ruling and instructions the defendant excepted.</p> <p>There was no claim that the defendant learned anything about the condition of the cow, more than what appeared-when plaintiff brought, and defendant first saw her. The plaintiff sued defendant February 3d, 1869. The defendant since then has fattened and killed the cow, and sold and used the beef. The defendant requested the court to instruct the jury that if the offer of the defendant to plaintiff was intended and understood to be merely jocose and not in earnest,, then plaintiff could not recover. The court declined to comply with this request, on the ground tfiat there was no evidence ip warrant it, to which the defendant excepted.</p>

Trover for a quantity of lumber. Plea, the general issue, and trial by the court, June term, 1870, Steele, J., presiding.

Action of covenant. Upon the facts in the case, which are sufficiently stated in the opinion, the county court, at the June term, 1870, Steele, J., presiding, pro forma, ruled that judgment should be rendered for the plaintiff for the amount of his. counsel’s bill of fees, and such judgment was entered, to which the defendant excepted.

Action, trespass. Plea, the general issue and notice. Trial by jury, June term, 1870, Steele, J., presiding. Verdict for the defendant. On the 8th of January, 1867, plaintiff went into occupation of a part of the “ Allen Block,” in St. Johnsbury, under a parol agreement of lease made with defendant’s agent, Sias Randall, to pay as rent $100 if he occupied a year; if less than a year, then $10 per month.

<p>This case was heard on defendant’s motion to dismiss the suit from the docket, to which the plaintiff demurred. The court at the June term, 1870, Steele, J., presiding, overruled the demurrer and ordered said cause to be dismissed from the docket. To which plaintiff excepted.</p> <p>dependant’s motion.</p> <p>And the said defendant Horace Emery, by his attorneys, W. A. Pierce and O. S. & 0. C. Burke, comes and moves the court to dismiss the above entitled suit and have the same stricken from the docket because he says the clerk who signed the writ did not at the time of signing the same make a true minute or endorsement thereon of the day, month and year when the same was signed.</p> <p>The motion to dismiss does not relate to the merits of the action or the jurisdiction of the court, but is in- the nature of a dilatory plea, and is governed by the same rules and regulations which govern pleas in abatement. Montpelier v. Andrews, 16 Vt., 604 ; Pollard v. Wilder, 17 Vt., 48 ; Wheelocle v. Sears, 19 Vt., 669. The motion should contain the substance of a good plea in abatement. Being in the nature of a plea in abatement, the court will not favor the motion and- will not look at the writ, declaration or officer’s returns unless referred to specially. The county court erred in'looking beyond the motion and in referring to-the declaration.— Hill v. Powers, 16 Vt., 516^ Bowman v. Stowell et al., 21 Vt., 309. The statute allowing the suit to be dismissed on motion does away with the technical form but not with the substance of a good plea in abatement. Whittaker v. Perry et al., 37 Vt., 631; Barrows y. McGowan, 39 Vt., 238.</p>

<p> Assumpsit. Contract. Compensation for Labor. </p> <p>Where one goes to work for another under an agreement to be compensated in a particular way, he is entitled to compensation in money upon the refusal of the other to compensate him as was agreed upon.</p> <p>The plaintiff and defendant entered into a parol agreement, by which the plaintiff was to go to work for the defendant on his farm and. help him pay off some incumbrances thereon, and the defendant was to deed the plaintiff one half the farm, no definite time for making the deed being agreed upon. The plaintiff worked from May 1st to November under the agreement, the defendant neglecting upon repeated-demands to make the deed, and in November the plaintiff left upon giving notice th&t he should leave unless the defendant gave him the deed, which ho still neglected to do. Held, that the plaintiff could recover in assumpsit for his labor.</p>

Action on the case. Plea, general issue. Trial by jury. Verdict for plaintiff, June term, 1870, Steele, J., presiding. The plaintiff read in evidence two deeds, showing the title of the five owners of the aqueduct in question. The evidence on the part of the plaintiff and of the defendant respectively tended to establish the facts according to their respective claims, as they are stated in the charge of the court.

Action on the case for damages to the plaintiff’s horse and gig alleged to have arisen from an insufficiency in a public highway in Barnet. Plea, the general issue. Trial by jury, June term, 1870, Steele, J., presiding. Verdict for plaintiff. It appeared that the injury arose by plaintiff’s gig breaking down in passing over a depression, or a water-bar, in the road near the village of Barnet.

Action of assumpsit. The defendant demurred generally to the first count. Demurrer sustained, and the first count adjudged insufficient, pro forma, Oct. term, 1869, Prout, J., presiding, to which ruling the plaintiffs excepted. EXTRACT PROM DECLARATION.

Action on the case, joined with counts in trespass as per declaration,- commenced before a justice of the peace, and brought into the county court by appeal. The case was tried before a referee, upon whose special report the court, at the September term, Chittenden county, 1869, Pier-point, C. J., presiding, rendered judgment for the plaintiff, pro forma, to which the defendant excepted.

Replevin, for four bales of flannel. Plea, the general issue. Trial by jury, May term, 1869, Windsor county, Barrett, J., presiding.’ The plaintiff proved the taking and value of the property.

This was an action upon a promissory note dated March 11, 1861, payable to the plaintiff or his order, on demand. The only question in dispute was whether the defendant was at liberty to pay the balance due on the note in United States legal tender notes at par. The plaintiff claimed that his judgment or execution for said balance should entitle him to insist' on payment thereof in the specie currency of the United States, or to its equivalent in legal tender notes.

<p> Husband and Wife. Ante Nuptial Contracts. Statute of Frauds. Trover. </p> <p>In soveral Vermont eases the legal title of the wife is recognized in a court of law, as existing against the effect of coverture, by reason of an understanding between the husband and wife after marriage, railer implied than expressed, that certain property, which would otherwise belong to the husband, should remain and be the sole and separate property of the wife.</p> <p>A parol agreement by the husband made before marriage, that property belonging to his wife while sole should remain hers, would operate to prevent the title being divested from her by the operation of law on the taking place of the marriage; and she being divorced may maintain trover for it against a purchaser from the husband.</p> <p>The statute of frauds is no shield for the defendant, because the action is based on a title that was always in the plaintiff, not on an executory ante-nuptial contract. The agreement became executed and its effect realized at once upon the fact of marriage, in that the right of property was not transferred to the husband by such marriage.</p>

Action of ejectment, which was referred and the referee reported as follows : This action, is ejectment for the recovery of a tract of land lying in the city of Burlington, as per declaration. Held: it was without liny intention of ever using it for the purpose of a public railroad. . There was a “ borrowing pit ” on the line of this road, but there was no evidence of its having been resorted to after the new route was completed.

<p>Audita querela as per declaration. Plea, the general issue, and that the suit has been discharged by the plaintiff’s attorney, T. P. Redfield. . Trial by the court, August term, 1869, Caledonia county, Steele, J., presiding.</p> <p>The said T. P. Redfield produced an exemplified copy of the record of a regular adjudication of bankruptcy against the plaintiff, and of the appointment of one Sedgwick as the plaintiff’s assignee, and also offered in evidence the record of his appointment as attorney of the plaintiff corporation, and as attorney of the assignee in bankruptcy of said corporation, and asked to enter a nonsuit in this case, and filed a written motion to that effect. The defendant insisted that the plaintiff be allowed to enter a non-suit, but L. P. Poland, the attorney of record for the plaintiff, resisted said motion. The question in the case was whether Poland represented parties who had a right to institute and control the suit. Upon the trial of this question by the court, the following facts appeared:</p> <p>The Essex Mining Company owned lands in Essex county, Vermont, and no other property of any great amount. The said company owed the defendant, E. P. Bullard, and also owed one Batchelder and one Tilton. Bullard, Batchelder and Tilton were all stockholders in the company, and Bullard and Tilton were directors, and all agreed to sue the company, and Bullard was to bring the suits and attach the property of the company. Bullard brought suits in favor of all three parties, and took judgment in them all by default. Batchelder and Tilton knew nothing of the character of the service. The property was attached first on Bullard’s suits, and then on the others, subject to this attachment. Bullard took judgment for a large sum, took out execution and levied upon the whole of the company property, and exhausted it all in satisfying his execution. This suit of audita querela was then instituted in the name of said Essex Mining Company without their consent, by and for the benefit of Tilton and Batchelder, for the purpose of enabling them to vacate Bullard’s judgment and levy.</p> <p>The Essex Mining Company, which is substantially under the control of Bullard, have never adopted or approved this suit, but as a company have disapproved of it, and now attempt to discontinue it, and have taken proceedings to be adjudged bankrupt for the purpose of protecting Bullard’s interest in the matter. Tilton and Batchelder, who have thus far controlled this suit, offered evidence tending to prove all the material facts alleged in the declaration, and also that Bullard agreed, before he made his attachment, that the attachment on his writ, and on Tilton’s, and on Batchelder's, should all stand on equal footing, the property to respond to their several debts, pro rata, and that upon this understanding he was employed to procure said attachments to be made, and that in fact he has taken the whole upon his own debt, and refused to divide pro rata.</p> <p>But the court held that Tilton and Batchelder did not stand in such a relation as to authorize them to institute and control this suit in the name of the Essex Mining Company, without the consent and against the will of said company.</p> <p>The court accordingly rendered judgment that the plaintiff become nonsuit. The plaintiff in interest claimed that the non-suit should be without.cost, and the court was of- opinion that the judgment should be without costs, provided the matter was within the discretion or control of the court, but allowed the defendant to recover costs, deciding that the disallowance of costs was not in the power of the court, to which the plaintiff excepted.</p> <p>The plaintiff in the declaration alleges that on the 27th of October, 1866, the defendant, Bullard, commenced two suits against said company, returnable to the December term of Caledonia county court, 1866, with declarations in assumpsit; that said writs were served by attaching certain real and personal estate belonging to said company in Concord, Vt. ; that said Essex Mining-Company is a corporation chartered by the state of New York, and organized in that state, under the laws thereof, and was not within this state, and had no notice whatever of the commencement or pendency of said suits, and therefore did not appear to defend the same; that at the December term, 1866, of said county court, the said Bullard caused judgment to be entered in said suits against said company by default, and had Ms damages assessed for the sum of $28,928.37, and the costs of both said suits taxed at the sum of $33.40, and by some process judgment was rendered in one of said suits for the full costs and damages assessed in both. The complaint also alleges that at the time of the service of said writs the complainant was without this state, and was not within the state at any time prior to said December term, 1866, and had not any notice of the pendency of said suits, and no evidence was shown to the court that the complainant had any notice of said suits, nor did the court find or adjudge that any such notice had been- given ; that said Bullard, notwithstanding this, neglected to have said suits continued to the next term of said court, and have notice published as the statute provides, but took said judgment by default at said December term; that said Bullard, without entering into any bond or recognizance to secure the complainant a writ of review as the statute requires, on the 7th of January, 1867, took out Ms writ of execution upon said judgment, and levied the same upon the said real estate of the complainant, and caused the same to be appraised and set off on said execution at the sum of $27,000. The complaint also alleges that the said Bullard’s debt, for which he took said judgment, was fictitious and fraudulent, and that the notes described in his declaration were the result of a fraudulent and collusive conspiracy between said Bullard and one Curtis and one King, to injure and defraud the complainant or the honest and bona fide owners of stock in said company, by obtaining a fraudulent and fictitious judgment, and sweeping the entire property of said company upon the execution. The complaint also alleges that certain notes described in the declarations in said suits as payable to said Curtis, and othqrs payable to said King, were never endorsed to said Bullard.</p> <p>The facts set forth in the complaint are sufficient to sustain it, and to set aside both the judgment and the execution issued thereon. Marvin y. Wilhins, 1 Aiken, 107 ; Whitney y. Silver, 22 Vt., 634; Alexander y. Abbott, 21 Vt., 476 ; Eastman v. Waterman, 26 Vt., 494-; Dingman v. Myers, 13 Gray, 1.</p> <p>Have Tilton and Batchelder the right to use the name of the Essex Mining Co., to institute and prosecute this suit to set aside this illegal and fraudulent judgment and execution ? They are not mere volunteers and interlopers having no interest in the matter ; they have subsequent attachments on the same property, which is the only means out of which they can ever get any payment of their debts. No principle is better settled than this, that the person equitably entitled may always use the name of one holding the legal interest to prosecute his right, even against the will of such nominal legal owner. The practice of allowing a subsequent attaching creditor to come in and defend the first suit stands on the same principle. In this state we have regulated that by statute, but our statute confers no new authority upon the courts. In New Hampshire, and several other states, the courts have given equal privtheges to subsequent attaching creditors without the aid of any statute whatever. Dunbar v. Starhie, 19 N. H., 160; Buehman v. Buehman, 4 do., 319; Blaisdell et al. v. Ladd et al., 14 do., 129; Boscawen v. Canterbury, 23 do., 191.</p> <p>But if the court should be of opinion that merely as subsequent attaching creditors they could not use the name of the Essex Mining Co. to prosecute this suit, we claim that upon the facts appearing in this case they have the right. The old books all speak of a writ of audita querela as substantially the same as a bill in equity. In this case, a direct fraud was practised by Bullard on Tilton and Batchelder. As against him we have the right to use the debtor’s name to correct and overturn this fraud.</p> <p>Tilton was a director of the company, and had the right to use the company’s name for an honest purpose, even against Bullard and his co-conspirators.</p> <p>The decree in bankruptcy was a mere sham. The defendant’s own evidence shows the discharge pleaded to have been unauthorized and fraudulent; all right- had before passed to the assignee. It was without consideration and really done by Bullard himself. The proper course was to move to strike off the files of the coui't. Webb v. Steele et al., 13 N. H., 230, and cases cited.</p> <p>But if the county court correctly held that Bullard had the right to come in and take the case out of our hands and control the suit himself, it was clearly within the power of the court to say that he should not submit to a judgment of non-suit, and then hold our recognizance for costs to put in his own pocket.</p> <p>If the defendant’s judgment is void, then Tilton does not need the proceeding to set it aside. If it is merely voidable at the election of this plaintiff, then it is the plaintiff and not another that makes the election. There is no privity between .Bullard and the other creditors of the plaintiff; the rights of each are the rights of several creditors of a common debtor.</p> <p>The subsequent attaching creditor would have no right to defend the suit in which the first attachment was had, except by force of our statute, and it has been often held that the right is confined to an inquiry into the justice and extent of the claim, but gives no right to interpose dilatory or technical pleas. . But Tilton and Batchelder do not stand as “ subsequent attaching creditors.” •</p> <p>Tilton and Batchelder not being parties, defendants, to the original suits, cannot make use of this writ to set aside the defendant’s judgment and levy of execution. At common law audita querela was used only to relieve the party on the ground of some matter happening after the judgment and which he had no opportunity to plead. Turner v. Davis, 2 Saund. R., 148, n (1) ; Scott v. Larkin, 13 Vt., 112. The defect in the service of the writs defendant v. plaintiffs, of which Tilton and Batchelder seek to take advantage in this suit, at common law would be remedied by writ of error and not by audita querela. 1 Swift Digest, 790. But audita querela or writ of error is not a weapon which every man can take up and wield at his pleasure, They are given only to the party aggrieved, by the irregular proceeding in the original actions, to the defendants in those actions. Turner v. Davis, 2 Saund., supra; BlachstoneY. Martyn, Sir W. Jones, 90, cited in the above note, p. 148; Shirley y. Bunenburgh, 11 Mass., 379; Hammond on Parties to Action, 267.</p> <p>A defect in the service of the writ can always be waived by the party. His appearance by self or attorney waives all such' defects. Bennett et al. v. Stichney, 17 Vt., 531; Perry v. Whipple, 38 Vt., 284; Knox v. Sumners, 1 Curtis’ Decís., U. S. Sup. Ct., 649 ; Pollard v. Dwight, 2 do., 158 ; Taylor v. Longworth, 13 do., 414.</p> <p>If the party can waive defects in .the service of the writ, before judgment, by acts not at the time intended by him to have that effect, he certainly can waive such defects after judgment, intentionally and voluntarily. This has been effectually done by the plaintiffs in this case, whether the power to do so is still vested in the plaintiffs or their assignee.</p>

<p>This was an action of general assumpsit, to recover back money-paid in excess of annual interest. Plea, the general issue, and trial by jury, September term, 1868, Pierpoint, C. J., presiding.</p> <p>The plaintiff introduced in evidence three promissory notes, for $2500, $1100, and $1800, dated December 14th, 1838, February 6th, 1846, and March 6th, 1847, respectively, signed by Samuel Nutt, and payable to Hugh Henry or order, on demand, with iuterest annually, on which were divers endorsements ; also three mortgages of certain lands in Hartford, given by Samuel Nutt to Hugh Henry, at the dates of said notes respectively, to secure the payment of the same, together with certain assignments of said mortgages.</p> <p>The evidence on the part of the plaintiff tended to prove that he was bound to pay said notes and remove said mortgages ; that on the 24th of January, 1860, these notes and mortgages belonged to the defendant; that at that date they were in the possession of Hugh H. Henry, of Chester, who held them for the defendant; that in January, 1860, having been frequently pressed to make payment upon them by Hugh H. Henry, and not having sufficient money to pay them, the plaintiff, Culver, employed one Safford to assist him to procure what money he required in addition to what he had of his own to make up the amount of the notes, upon the securities of said Culver, which Safford succeeded in accomplishing ; that accordingly, on the 20th day of January, 1860, the plaintiff and Safford went to Hugh H. Henry’s, at Chester, and there proposed to him to pay said notes, and have an assignment of them and the mortgages made to Safford; that Henry presented a cast of the amount then due on said notes, which Culver thought was too large, but that Henry told him if there was anything wrong in the cast it should be made right; that at the interview Henry stated that it would be necessary to send or to go to Burlington, where the defendant lived, to have the assignments of the notes and mortgages made, and that it was thereupon agreed that Henry and Safford should go to Burlington and have the transaction closed, and that Culver, on the faith of Henry’s assurance that any errors in the computation would be made right, authorized Safford to go to Burlington, and, on receiving the assignment, to pay the amount claimed by Henry ; that accordingly Safford, having received of the plaintiff the amount claimed by Henry, went to Burlington with Henry, where, on the 24th of January, 1860, fltov tv.»* ' ff-udant, and Safford paid him the amount which ! ’ • . b imed, and took an assignment of said notes and monga.. objection was made at any time by Henry or 1:1 '. riant, to . 0 said assignment, and no claim was made by them for any more than was actually due on the notes; that Safford, when he made this payment, knew that this sum was arrived at by computing compound interest on the notes at 6 per cent., under a claim by Henry for the defendant, that under the circumstances it was right and proper to so compute it, and that Safford paid that sum without objection; that Safford was employed and paid by Culver for doing all this, including his time and expenses to Burlington; and that Culver’s purpose in having the assign-, ment taken to Safford was, because, as Culver resided in New Jersey, it was more convenient to have Safford hold them in his name. But there was no evidence that the relations of Safford and Culver to each other, or Culver’s purpose in having the assignment made to Safford, were communicated to Henry or to the defendant. The plaintiff claimed to recover the difference between the sum actually due on the notes January 24th, 1860, according to their tenor, and the amount paid by Safford to the defendant, with interest on this difference from the 24th of January, 1860, to the day of trial.</p> <p>The evidence on the part of the defendant tended to prove that it was agreed and understood on said occasion at Che'ster that compound interest should be computed and paid on the notes, but that if there was any mistake in the mere figuring, on that principle, such errors of figuring should be corrected; that, pursuant to this understanding, had at Chester, Safford and Henry met at Burlington on the 24th of that month; that Safford then told Henry that he had concluded to take an assignment instead of a discharge of said notes and mortgages, as he desired to control them; that accordingly, in Safford’s presence, Henry told the defendant that Safford desired to purchase the notes and mortgages of the defendant, and the defendant said he would assign them to Safford for such sum as Henry thought they were worth; that Henry said he thought Safford should pay for them the amount due on them, computing compound interest, at six per cent. ; that Safford agreed to pay that amount for an assignment of them ; that Safford and Henry thereupon so computed the notes; that the result of this computation was 17,909.67, and that Safford without objection, and fully knowing by what computation that amount was obtained, paid that sum to the, defendant, and received the assignments of the notes and mortgages as shown upon them ; that nothing was said to the defendant by any person about any previous interview between Culver and Safford and Henry, or that Culver had anything to do with this transaction, but that the defendant and Henry both supposed that Safford was transacting the business solely on his own account, and that it was nothing but what the papers showed it to be, viz: an assignment of the notes and mortgages to Safford.</p> <p>The defendant among other things requested the court to charge the jury as follows:</p> <p>I. That the transaction at Burlington, whether connected with the interview at Chester, or not, was simply a sale and assignment of the notes and mortgages either to Culver or Safford, and that none of the money paid at Burlington could be recovered back ; and that at least it was a question for the jury, whether the parties mutually understood it to be merely a payment of the notes or an assignment, and if the latter, that the plaintiff could not recover.</p> <p>II. That if compound interest, at 6 per cent., was voluntarily and knowingly paid to the defendant by Culver, or Safford, as his agent, it was not usury, and the excess over annual interest could not be recovered back. i</p> <p>The court refused to charge the jury as requested, but did charge that the only question for them to consider was whether, in the transaction of paying the $7,909.67 and taking the assignment of the notes and mortgages, Safford acted as agent of Culver, and in Culver’s behalf, or in his own interest and behalf; that if he acted in the latter capacity, the payment by Safford to the defendant of the notes computed at compound interest would not be the. payment of usurious interest, and if he paid more than was intended to be paid, the action to recover such excess must have been brought in his name, and the plaintiff could not recover ; but that on the other hand, if Safford in the transaction at Burlington, acted as Culver’s agent and in Culver’s behalf, then it was precisely the same as if Culver had' paid the money and taken a discharge instead of an assignment of the notes and mortgages, and that all excess over annual interest on the notes would, under the circumstances, be usury, and that the plaintiff would be entitled to recover that excess, with interest thereon from January 24th, 1860, when it was paid.</p> <p>To the refusal of the court to charge as requested, and to the charge given, as above detailed, the defendant excepted.</p> <p>cited to the point that compound interest at six per cent., understanding^ paid, is not usury, 3 Parsons on Contracts, 150-153 ; 1 Am. Lead. Cases, 522-3 ; Ossulton v. Yarmouth, 2 Salkeld, 448 ; Baton y. Bell, 5 B. & Aid., 34 ; Be Grange v. Bamilton, 4 D. & E., 613 ; Kellogg v. Bichóle, 1 Wend., 521; Mowry v. Bishop, 5 Paige, 98 ; Wilcox v. Bowland, 23 Pick., 167 ; Camp v. Bates, 11 Conn., 487 ; Von Bamert v. Porter, 11 Mete., 210 ; Connecticut y. Jackson, 1 John. Ch., 16; Stoughton v. Lynch, 2 John. Ch., 215-16 ; Bow v. Brew, 3 N. H., 40 ; Pierce v. Bjowe, 1 N. EL, 179 ; Birchard v. Bst. of Knapp, 81 Vt., 679.</p> <p>cited to the point that the money received by the defendant from the plaintiff, beyond the amount legally due on the notés, could be recovered back in this action, Bank of U. S. v. Owens, 2 Peters, 535 ; State of Connecticut v. Jackson, 1 John. Ch., 16 ; Gatlin v. Lyman, 16 Vt., 44 ; Stephens v. Bisher, 23 Vt., 272.</p>

Bill in Chancery. The object of the bill and the facts in the case as set forth in the bill are sufficiently stated in the opinion of the court. The defendants demurred to the bill, and at the May term, Lamoille county, 1866, Wilson, Chancellor, the bill was, pro forma, dismissed, and the orator appealed. In this case the common law rule that in case of fire insurance, alienation of property avoids the insurance, unless the policy is assigned, is not denied.

This was a prosecution for violation of the provisions of section -nine of chapter ninety-four of the General Statutes, relating to the sale, &c., of intoxicating liquor. The prosecution was commenced in the city court of the city of Burlington, and came to the county court by appeal. Trial by jury, September term, 1869, Chittenden county, Pierpoint, 0. J., presiding. In the county court the respondent filed a general demurrer to the complaint, which was overruled.

Bill in chancery. The bill alleges that on or about the 9th day of May, 1864, one William T. Putnam bargained with Aaron Smith of Danville, to purchase of him a certain farm in Danville, known as the Chandler farm, for the sum of eighteen hundred dollars, Smith to give title to Putnam on such payment; and on said 9th day of May Putnam paid Smith eight hundred dollars toward said farm, which Smith received in part payment; and it was then agreed that Smith and his wife should…

Action on the case to recover damages from defendant for obstructing a public pent road. The ad damnum in plaintiff’s writ was two hundred dollars, and plaintiff’s declaration set forth the damage suffered by him at two hundred dollars. The defendant filed a motion to dismiss for want of jurisdiction in the county court. The court overruled this motion, and trial was had by jury, .at the February term, 1870, Orleans county, Steele, J., presiding.

Bill in chancery. The substance of the bill essential to be stated was as follows : The orators, George P. Howe, ¥m. H. H. Wood, Rufus Bishop, Albert Gilley, Lucius Barney, Horatio B. Barney, Mary P. Howe, Lucretia Cilley, and Milton Eord, all of Jericho, county of Chittenden, who bring this bill of complaint in their own behalf and in behalf of all others in the like interest in the church or meetinghouse property and land, in said Jericho, hereinafter described, who may…

Petition to foreclose a mortgage. It appeared that the mortgage sought to be foreclosed was a mortgage of certain land in Westford in the county of Chittenden, which the petitioner and one H. M. Pierce conveyed by a warranty deed dated June 21, 1864, to the defendant Brew. The mortgage was executed by said Brew and dated June 25, 1864, and was given to secure.a note of $400, executed and delivered by said Brew to the petitioner.

Complaint and warrant for the seizure of intoxicating liquor under sec. 22 of chap. 94 of the General Statutes. Ralph E. Ray and John EL Brooks appeared as claimants • of the liquor in question, and demanded a trial by jury under the provisions of chapter 94 of the General Statutes, and also under the law of 1868, (Acts of 1868, No. 88, sec. 3,) constituting the city court of the city of Burlington.

General assumpsit. Plea, the general issue, and payment. Trial by jury, April term, 1870, Pierpoint, C. J., presiding. Verdict for the plaintiff. It appeared on trial that the plaintiff exchanged his horse for a certain mare of the defendant, and by that trade the defendant agreed to pay the plaintiff |70 as “ boot” or difference between the horse and the mare, and that the suit was brought to recover that sum, no part of which had been paid.

Assumpsit, to recover a town bounty. Plea, the general issue and payment. Trial by jury, April term, 1870, Pierpoint, C. J., presiding. Verdict for the plaintiff.

Trespass for breaking and entering lot numbered 140, in Bolton, and cutting and taking away timber, &c. Pleas, the general issue, accord and satisfaction, and license. Trial by jury, and verdict for defendant; April term, 1870, Pierpoint, C. J., presiding.

Assumpsit on a promissory note for $400, made jointly and' severally by Asa Sanderson and the defendant, dated January 4, 1868,. payable one year from date. Plea, the general issue, with notice of special matter of defense. Trial by jury, and verdict for the plaintiff, April term, 1870, Pierpoint, ,O. J., presiding.

Assumpsit to recover a town bounty. Plea, the general issue. Trial by jury, Sept, term, 1869, Wilson, J., presiding. Upon the facts proved, which are fully stated in the opinion of the court, the county court decided pro forma that the plaintiff was not entitled to recover either of the sums declared for in his declaration, and pro forma ordered a verdict for the defendant, to which decision and ruling the plaintiff excepted.

This was an information filed by the state’s attorney by request of the respondent, charging that the respondent assaulted one Isabel Shalon, with intent carnally to know and ravish her. Plea, not guilty. Trial by jury, April term, 1869, Wilson, J., pre-' siding.

Assumpsit to recover for certain goods. Plea, general issue, and trial by the court, Sept, term, 1870, Wilson, J., presiding. It appeared that at the date of plaintiffs’ claim, defendant’s wife called at plaintiffs’ store and said to plaintiff Rublee she wanted to purchase the bill of goods in question upon the credit of her husband the defendant. The said Rublee was not acquainted with defendant’s wife.

<p>Assumpsit in the common counts. Plea, the general issue, and trial by jury, April term, 1870, Wilson, J., presiding.</p> <p>Before the trial commenced, the defendant obtained leave of court to pay and did pay into court $65 for the item of crockery mentioned in the plaintiff’s specification, and for costs which had accrued in the suit up to the time of paying the money into court. The item of five dollars cash, charged in said specification, it appeared was money lent to defendant’s wife previous to a former settlement, and accidentally omitted in that settlement; but it being conceded by the plaintiffs that they did not call the defendant’s attention to that item at the time of the former settlement, or at any time before bringing this suit, the court ruled that it could not be made a ground of recovery in this action unless by consent of defendant, to which no exception was taken. It appeared that all of the other items in the plaintiff’s specification, except some shingles, were delivered to defendant’s wife or children. It was conceded by the plaintiffs that the defendant had paid for all the goods in said specification which were delivered to him in person.</p> <p>After all the account accrued, the plaintiffs called on'defendant for payment for the articles delivered to his wife and children, and the defendant refused to pay for the same, except the bill of crockery, in relation to which the defendant told the plaintiffs that ’he told his daughter he would get some crockery for her ; that he understood she had purchased some crockery of plaintiffs, and the defendant agreed to pay for it. The defendant’s daughter purchased said bill of crockery for herself, and not for the use of the defendant’s family, which fact was known to the plaintiffs.</p> <p>The dispute on trial was in regard to the other articles delivered to defendant’s wife and children. The plaintiffs claimed that the articles so. delivered were necessaries, and needed by the defendant’s family, and on this ground they claimed the defendant was liable notwithstanding they had previously had notice and promised the defendant that they would not deliver any more goods to his wife or children.</p> <p>The plaintiff (John A. Perkins) testified as follows : “ The defendant traded with us before this account commenced. Most of the articles in the former account were delivered to the defendant’s wife and children and the defendant paid the same. At the timé of the settlement of the former account the defendant told us not to let his wife or children have any more goods on his account, that he was not going to have any more goods charged to him. He said at the time he settled the former account that considerable part of it he did not know about, that he did not know his family had made the former account, but he settled it and then told us not to trust his wife or children any more. I think we promised the defendant at that time that we would not deliver any more goods to his wife or children on his account on credit. The defendant was at our store frequently during the time this account was accruing, but I did not tell him we were delivering any goods to his wife or children, or that his wife or children had purchased any of said articles, or that they were trading with us, and he said nothing in relation to the matter. I knew that defendant’s family went from store to store and got goods. I never knew them to get anything they did not need, never saw any costly clothing on them. I saw them at church, they were plainly clothed. The defendant was worth at least 17000. I don’t know where the defendant purchased his goods for family use. He usually paid money for goods. I have seen his family at other stores buying goods, but don’t know whether they paid for them or not.”</p> <p>The plaintiffs introduced some other evidence tending to show in what manner the defendant supported his family, and tending somewhat to show that he did not provide for them as well as some families were provided for.</p> <p>The plaintiffs then rested, and no testimony was introduced by the defendant.</p> <p>It appeared that the defendant lived with and provided for his family during the whole period within which said account accrued. There was no evidence in the case tending to show that any of said articles delivered to defendant’s wife or children was carried to defendant’s house or used in or by defendant’s family to the knowledge of the defendant. There was no evidence in the case tending to show that the defendant knew, until after said account accrued, that the plaintiffs had delivered any of said goods to defendant’s wife or children.</p> <p>It was not claimed by the plaintiffs that the defendant had given his wife or children any express authority to make said purchases, but they claimed that such authority was implied from the circumstances.</p> <p>The defendant claimed among other things that he had the right to trade where he could buy goods to the best advantage and to buy them himself; that he had supplied from time to time his family with such goods as they needed, and that the plaintiff had no right under the circumstances to dictate in relation to the support of his family, or to recover for goods delivered to his wife or children in violation of his express prohibition.</p> <p>The plaintiffs insisted that upon the facts the defendant was liable for all the goods'so delivered to defendant’s wife and children, deducting credits, but the court ruled otherwise and decided that the testimony did not tend to show any such neglect on the part of the defendant to provide for his family as would give the plaintiffs the right to recover for goods delivered to defendant’s wife or children after defendant had notified the plaintiffs not to deliver any goods to them and the plaintiffs had promised they would deliver no goods to defendant’s family on credit. And the court decided that the plaintiffs were entitled to a verdict for said crockery bill and interest, and so ordered a verdict. To which the plaintiffs excepted.</p> <p>The plaintiffs’ counsel then claimed a right to enter a non-suit, but the court decided they could not as matter of right enter a non-suit under the circumstances. To which plaintiffs excepted.</p> <p>The plaintiffs’ counsel then claimed a right to go to the jury on the question whether the defendant, by offering to pay for the crockery bill, had ratified that part of the account which accrued subsequent to the date of the crockery bill; but the court decided that there was no evidence tending to show a ratification of any of said account except said bill of crockery. To which the plaintiffs excepted.</p> <p>Verdict for plaintiffs for amount of said crockery bill and interest and costs.</p>

<p>Appeal from the probate court, in which the plaintiff seeks to recover a sum of money in the hands of the administrator of Lestina L. Dean, who was formerly the wife of the plaintiff. Plea, the general issue, and trial by jury, April term, 1870, Wilson, J., presiding.</p> <p>The money in question came to Mrs. Dean by inheritance, and was deposited by her in her own name, in the Windham Provident Institution for Savings, at Brattleboro, in 1863, and a certificate of deposit, or pass-book, was delivered to her at the time of the deposit, by the officers óf the bank, and in accordance with the rules and regulations of the bank. This money remained in the bank until after her decease, (with the exception of $25 drawn out by Mrs. Dean herself in June, 1867,) and was paid to her administrator by the bank. During her life-time the plaintiff exercised no control over this money, and no question was made but that it was the separate property of Mrs. Dean.</p> <p>The plaintiff claimed to recover the money of Mrs. Dean’s administrator on the ground of a parol gift from Mrs. Dean to her husband, the plaintiff.</p> <p>The plaintiff introduced Truman Dean as a witness, who testified, under objection, that during her last sickness Mrs. Dean said to him, that “ what she had she had given to her husband, Henry Dean that “ she expected he would have everything she had gotto which the defendant excepted.</p> <p>The plaintiff also introduced M. R. Tyler as a witness, who testified, under objection, that a short time before her deail, Mrs. Dean stated to him that “ all of her personal property she had given to Mr. Dean that “ that money south, or the money in the bank, she had given to him to which the defendant excepted.</p> <p>The plaintiff also intz-oduced a letter written by Mrs. Dean to her husband, under date of June 4, 1867, the following extracts from which were, under objection from the defendant, admitted and l'ead to the jury :</p> <p>“ You can have that money and interest after the second Tuesday in July next.”</p> <p>“ You write, and tell me what you will have done with the money.” “ Write to Newark, N. J., 195 Walnut Street.”</p> <p>To the admission of this testimony the defendant excepted.</p> <p>It appeared on trial, that at the hearing before the probate court for a decree of distribution, the plaintiff, under objection from defendant’s counsel, was permitted to and did testify generally in relation to the alleged gift, and that the judge of probate took minutes of his testimony on that occasion.</p> <p>The plaintiff offez'ed himself as a witness on this trial, to prove his title to the money in question, and to prove the alleged gift, but the court excluded the testimony, but permitted the witness to be inquired of, and the witness testified, under objection- from the defendant, that after the appointment of administrator upon Mrs. Dean’s estate he delivered the certificates of deposit, or passbooks, to the administrator, and that he claimed to the administz’ator on that occasion that the money in question was his, the witness’s, property. To the admission of this testimony the defendant excepted.</p> <p>The defendant introduced the judge of probate to prove that, at the hearing before the probate court, the plaintiff testified on cross-examination that he did not get possession of the certificates of deposit or pass-books in question until after Mrs. Dean’s decease, and that he (the plaintiff) did not give notice to the bank that he claimed the money as. his own until after Mrs. Dean’s decease.</p> <p>The witness so testified, and on cross-examination he was inquired of if he did not take minutes of the plaintiff’s testimony-before the probate court, and the witness having said he did, he was inquired of if his minutes contained any such statement as that he had testified to, and the witness having stated that he could not tell without looking over his minutes, he was permitted, under objection, to read from his minutes, as follows: “ The arrangement was made in May, 1867, and we had a talk about it when she returned, and I did not take possession of the pass-books-until after her deail. She did not keep them excluded from me. I let her have them.”</p> <p>The witness was then proceeding to read aloud to the court and jury his minutes of the plaintiff’s entire testimony before the probate court, when the defendant’s counsel interposed and objected.</p> <p>The plaintiff then offered to show by this witness all that the plaintiff testified to before the probate court, either from the recollection of the witness, or by the aid of his minutes.</p> <p>The defendant objected to proof of what the plaintiff testified to before the probate court, except upon the points drawn out on the examination in chief, to wit: 1st, as to the time the plaintiff “got possession of the certificates of deposit, or pass-books; and 2d, as to whether he notified the bank before Mrs. Dean’s deail that he claimed the money as his own. (It was conceded by plaintiff that he gave the bank no notice till after Mrs. Dean’s deail.)</p> <p>But the court overruled the objection, and admitted the testimony, and the witness read aloud to the court and jury his minutes of the plaintiff’s entire testimony before the probate court.</p> <p>To the admission of this testimony, except upon the points drawn out upon the examination in chief, and to the reading of the minutes taken by the witness, the defendant excepted.</p> <p>It appeared that Mrs. Dean left heirs at law, a brother and a sister.</p> <p>The plaintiff introduced no other testimony in the case.</p> <p>The defendant introduced a witness, who testified that he was present at the hearing before the probate court, and heard the plaintiff testify on this occasion, under objection from the defendant. The witness was asked whether the plaintiff was inquired of, on cross-examination, as to what time he got possession of the pass-books, and the witness testified that the plaintiff’s answer was that the books were in Mrs. Dean’s trunk in a little casket where she kept valuable papers ; and that he (the plaintiff) took them out after her decease. On cross-examination, the witness was inquired of if the plaintiff did not state, at the hearing before the probate court, that Mrs Dean gave him this money. The defendant objected, but the court overruled the objection, and the witness testified that the plaintiff claimed that Mrs. Dean intended to give him the money, to which the defendant excepted.</p> <p>The defendant requested the court to charge the jury:</p> <p>1st. That the plaintiff, on the conceded’ facts in the case, is not entitled to recover; that a married woman cannot at law make a valid gift to her husband.</p> <p>2d. That even if a married woman can make a valid gift, actual delivery is necessary ; that the delivery necessary in this case is an actual delivery of this money by the bank to Mr. Dean, on the order and by the direction and with the knowledge and consent of Mrs. Dean in her life-time ; that unless the jury find these facts from the testimony they cannot render a verdict for the plaintiff.</p> <p>3d. That if this is not necessary to constitute a valid delivery so as to vest the title to this money in Dean, still the jury must find from the testimony that Mrs. Dean, in her life-time, ordered and directed the’ bank to pay this money to Mr. Dean, and that such order was presented to and accepted by the bank, and that unless the plaintiff establishes all these facts by a fair balance of testimony, he is not entitled to recover.</p> <p>4th. That the pass-books coming into the hands of Dean after the decease of Mrs. Dean is not evidence of delivery.</p> <p>5th. That if the jury find from the testimony the most unequivocal intention on the part of Mrs. Dean to give this money to Mr. Dean, still, if this intention was not followed by an actual delivery, the gift is inoperative and void, both at law and in equity, and that proof of such intention does not tend alone to prove a delivery.</p> <p>6th. That the testimony of Mr. Tyler and Truman Dean that Mrs. Dean, during her last sickness, said she had given all her property to her husband, is insufficient to prove a gift.</p> <p>But the court refused so to charge, and did charge the jury that if they found that the' gift was made, and found that the plaintiff kept his papers, or some of them, in the same trunk in which the pass-books were kept, and kept them there after the gift and before her deail, and had access to the trunk and possession of it and of the pass-books, it will tend to show a delivery of the passbooks in pursuance of the gift, and tend to show- a delivery of the gift in the life-time of the said Lestina; and that if upon the whole evidence the jury found that the plaintiff, after the gift (if the jury found one was made) and before and at the time of her deail, kept his papers in the same trunk in which the pass-books were kept during the time, and that he had during that time access to the trunk, and possession and control of the trunk, and exclusive possession and control of the pass-books in pursuance of the gift, it will constitute a sufficient delivery of the gift; or if the jury found that she made the gift, and found that the trunk in which the pass-books were kept was in the joint possession of the plaintiff and the said Lestina after the gift, and before and at the time of her deail, and that the plaintiff and the said Lestina, during that time and at the time of her deail, used said trunk, and that each of them kept his or her papers there during that time, and find that the plaintiff, during that time and at the time of her deail, had possession and control of the trunk for the purpose of keeping his papers there, and that he ha,d exclusive possession and control of the pass-books in pursuance of the gift, and kept the pass-books in that trunk during the time, because he used the trunk for the purpose of keeping his papers there, this would constitute a sufficient delivery of the gift; that if the jury found that she made the gift, and that the gift was accompanied by a delivery of possession of it to the plaintiff in the life-time of the said Lestina, the gift would not be defeated by letting the pass-books go back into her custody for the purpose of carrying them to Brattleboro in 1867, or for any other purpose, unless the gift was revoked by her.</p> <p>To the refusal of the court to charge as requested, and to the charge of the court upon the subject ;of the gift, and upon® the question of the delivery, the defendant excepted.</p>

Assumpsit in special and general counts. Pleas, the general issue, statute of limitations and set-off. Trial' by jury, and verdict for the plaintiff, at the September term, 1868, Wilson, J., presiding.

<p>General assumpsit. The case was referred, and the referee reported as follows : x</p> <p>At the June terra, 1865, of Addison county court of chancery, a petition for the foreclosure of a tract of land in Starksboro was filed by the plaintiff in this suit against the above named defendant. At the same term, said defendant appeared and filed his answer, setting forth in substance that he was then the owner of a prior outstanding mortgage upon said premises, and claiming that the petitioner was not entitled to foreclosure against him without first paying said prior mortgage. To this answer the defendant’s solicitor filed a replication which was withdrawn with leave of the court at the December term, 1865, at which term the chancery docket shows the following entry in said cause, to wit:</p> <p>“ In the above entitled cause, and at said term of said court, it was ordered by the chancellor that orator has leave to withdraw his replication, and to ,pay in to the clerk the amount due on the prior mortgage, with the costs of defendant’s answer, and then to have a decree.”</p> <p>That in pursuance of said order, Mr. Spaulding, at said last 'named term, deposited with D. Stewart, the clerk, the amount then due on said mortgage, eighty-three dollars, and the cost of the answer, two dollars, telling him that there was so much money for the prior mortgage and the costs of the answer, and that he deposited it to be paid to said Tucker, the defendant, when the latter should leave his said prior mortgage and note with him, the clerk, for the petitioner.</p> <p>At the same term the petitioner took a decree of foreclosure, but the same was never enrolled and signed, and of consequence was not recorded. Subsequently and before the expiration of the time of redemption, Tucker paid to the clerk the amount due upon said decree, and at the same time received from the clerk the sum of eighty-five dollars and ninety-three cents, that being, as appears by the docket entry, the amount due on the prior mortgage. It further appeared that before the petition to foreclose was served upon the defendant, the plaintiff tendered to him the amount due on the prior mortgage, and the defendant declined to receive it.</p> <p>It further appeared that the defendant took the mortgaged premises from one Haskins, in exchange for land which he owned, and that possession thereof was exchanged before the deeds were executed, and that when possession was so exchanged, said defendant agreed with Haskins to pay both of said mortgages, and the referee finds that he took the premises subject to said mortgages.</p> <p>The plaintiff’s right of recovery seems to hinge upon the construction given to the order of court above quoted.</p> <p>The proper interpretation of the order is referred to the-court.</p> <p>Judgment of county court for the plaintiff for the amount found by the referee, $101.69. Defendant excepted.</p>

Assumpsit upon special and general counts. Plea, general issue, trial by jury, Pierpoint, J., presiding, and verdict for defen' dant. The plaintiffs gave evidence tending to show, that in the spring and summer of 1867, they were engaged in buying hay in Vermont, on joint account.

Replevin of a cow, heifer and calf. The defendant filed an avowry that said property was taken by defendant as collector of school district No. 2, Clarendon. Trial by jury, March term, 1870, Wheeler, J., presiding. It was admitted that the defendant was an inhabitant of the district, and bad a list, as stated in the rate-bill. The existence of the school district also conceded. The defendant’s evidence tended to prove the facts set forth in the avowry.

<p> Promissory Note. Principal and Surety. Praud. </p> <p>L. procured H. to sign a note to the plaintiff as surety for him, by representing that he could use the money to be obtained thereon profitably in a business operation. L. delivered the note to the plaintiff in payment of a pre-existing debt, and made the note and obtained H. to sign it with this intention. L. was insolvent and wholly destitute of means, and has been ever since. H. relied upon L.’s representations and supposed he would realize from the operation and pay the note at maturity, and would not have signed it had he known the use L. intended to make of it. Held that H. was liable thereon to the plaintiff, it not appearing that the plaintiff knew of the fraud.</p>

<p>General assumpsit. The case was referred, and that portion of the report essential to be stated is in substance as follows :</p> <p>On the 12th day of August, 1867, Alonzo C. Blaisdell of the one part, and Patrick Cummings and Francis Pecor of the other part, entered into a written agreement, duly executed, by which Cummings and Pecor agreed to lay the stone work and certain brick work fully specified, in a block which Blaisdell was about to erect, Blaisdell to furnish the material, and to pay them two dollars and fifty cents per yard for the stone work and five dollars and fifty cents per thousand for the bi’ick work. Five hundred dollars to be paid in goods out of the said Blaisdell’s store, such as the said Cummings and Pecor should want, and the balance to be paid in money at the rate of sixty dollars per week, if the said Cummings and Pecor should require so much. The contract also provided when the work was to begin and when to be completed.</p> <p>We find from the testimony that, under this contract, the said Cummings and Pecor commenced work upon said building and continued together upon it until the job was about two-thirds completed, when, by an agreement between Cummings and Pecor, Pecor left the work for Cummings to complete. This was done with the knowledge and without any objection from Blaisdell. After the withdrawal of Pecor from the job, all payments made for the same were made to Cummings by Blaisdell, and all negotiations pertaining thereto were had with him, the said Cummings; and so far «.o ouch a state of facts would show, Blaisdell acquiesced in the leaving of the work by Pecor, and its being completed by Cummings. We find that Cummings completed the job, and that whatever may be due from Blaisdell for work uppn said building is due Cummings, and that Pecor has no interest or right in or to it, as he had been paid in full by Cummings when he left the job.</p> <p>The balance found unpaid for said work was $335.63, which with interest the referees found due the plaintiff, provided the court should find, as a question of law, that the plaintiff was entitled to recover in his own name.</p> <p>The court at the March term, 1869, Prout, J., presiding, rendered judgment pro forma on the report for the plaintiff, to which the defendant excepted.</p>

Assumpsit—demanding three hundred dollars. The case was tried upon an agreed statement as follows : The plaintiff was, on the 30th April, 1869, and has been ever since, the keeper of the jail located at Rutland ; and it was and is the business of the plaintiff to board.and provide for prisoners committed to said jail. He brought his action against the said town on the 13th day of August, 1870.

<p>Appeal from decree of the probate court of the district of Rutland, approving the will of Artemas Carpenter deceased. Plea that the instrument produced is not the will of the deceased, and issue joined to the court. The wife of defendant Andrew Moore, and defendant Jeremiah C. Powers, are heirs at law of said testator.</p> <p>The proponent of the will gave evidence tending to show its due execution, and the capacity of the testator to make it.</p> <p>The contestants gave evidence tending to show mental incapacity of the testator to make a will, and, among other witnesses to show that fact, offered the wife of said Powers, to the admission of whose testimony the proponent objected, and the same was excluded by the court, to which the contestants excepted.</p> <p>Artemas C. Powers is an heir at law of the testator, and testified for the contestants, and his wife was also offered as a witness on the part of the contestants, to show incapacity in the testator, and her testimony was also excluded, to which the contestants excepted. The said executor was offered and admitted as a witness in behalf of the proponent of the will, against the objection of the contestants, and gave evidence tending to show the testator’s capacity, to which the contestants excepted.</p> <p>Judgment at the March term, 1870, Wheeler, J., presiding, that said instrument is the will of said Artemas, etc. No costs allowed either party. Exceptions by the contestants.</p> <p>The disability of the wife as a witness is removed by statute — except as to admissions and conversations of her husband, and in criminal proceedings. Gen. Sts., ch. 36, §24 and §27, p. 327. Sts. of 1863, No. 14, p. 20. R. $ B. Railroad v. Lincoln, 29 Vt., 206 ; Oram v. Oram, 33 Vt., 15.</p> <p>The exceptions do not show any interest in the husband, and the testimony offered had no relation to his “ admissions or conversations.”</p>

This was an action of assumpsit, originally brought before a justice of the peace, and came to the county court by appeal. The declaration contained the common indebitatus counts only, and the plaintiff’s claim to recover was based upon a promissory note. The defendant pleaded non-assumpsit, with notice of payment, and a special plea of set-off, consisting of only the common indebitatus counts in assumpsit.

Assumpsit on a promissory note given by defendant to plaintiff’s testator. Pleas, the general issue, payment, and set-off for money had and received both by the testator and the plaintiff. Trial by the court, at the September term, 1867, Wheeler, J., presiding.

Bill in chancery. The object of the bill was to reach certain trust funds which had been wrongfully perverted. The defendants filed answers which were traversed and testimony was taken tending to support the allegations of the bill and answers. At the September term, 1870, Wheeler, chancellor, the bill was proforma dismissed, from which the orator appealed.

Assumpsit upon an agreement by defendant to make and deliver a hearse to plaintiffs. Plea the general issue with notice. Trial by jury at the September term, 1870, Wheeler, J., presiding. The plaintiffs’ evidence tended to show that in April, 1865, they contracted with the defendant to make, at St. Albans, and send a hearse to the plaintiffs at Rutland, of a specified style of make and quality of material and finish, for two hundred and ten dollars.

Trespass for an assault and battery. Plea, the general issue and notice of defence: 1st, son assault demesne ; 2d, that assault was made in self-defense, and in the defense of his failer’s close and an acqueduct therein, by his failer’s command. Trial by jury, March term, 1870, Wheeler, J., presiding.

Action on an award. It was agreed that the cause be submitted to the court upon the following statement of facts: The plaintiff, in the winter of 1865, while traveling with a span of horses and sleigh on one of the public roads in the town of Pawlet, injured one of his horses, as he claimed, through the insufficiency of said highway.

Action on the case brought to recover of the town of Wells damages for the default of its constable in not making service of two writs of attachment.

Assumpsit. The case was referred and the referee reported as follows: That on the 19th day of December, 1864, the President of the United States issued his proclamation calling for 300,000 volunteers, to be furnished by the 15th day of February, 1865. On the 5th day of January, 1865, the selectmen of the town of Win-hall called a town-meeting, to be held on the 18th day of said January, which meeting was held in pursuance of the warning.

<p>General assumpsit. The case was referred and the referee reported as follows:</p> <p>On the 5th day of February, 1863, the plaintiff held the promissory note of tho defendant, which was dated May 4th, 1857, and given for the sum of sixty dollars and interest, and which was given on a good consideration and delivered the plaintiff on tho day of its date. On the said 5th day of February, the plaintiff applied to the defendant to pay said note, but the defendant being-unable to pay it, proposed to the plaintiff to give him a new note for forty dollars, payable in two years with interest, and in satisfaction of the note first above referred to. The plaintiff accepted said proposition, and thereupon the defendant executed and delivered the note hereto attached, when the plaintiff gave up to the defendant the said note of sixty dollars.</p> <p>On the day of the commencement of this suit, and after the writ in this cause had been served, the said defendant offered and tendered to the plaintiff, but subject to the condition that if the plaintiff took the amount so offered, it was to be in full payment of all claims of the said plaintiff, the ¿mount of the note attached with the accrued interest thereon up to that date, together with costs for writ and service, which the plaintiff refused to receive, claiming that his demand was more than the amount so offered him. The money thus offered the plaintiff was returned into court by the defendant, and is now in the hands of the clerk. Before me, the plaintiff claimed on the facts aforesaid, that he was entitled to recover the amount of the note first above referred to and given up by him as aforesaid ; but I held otherwise, and decided and so find, on the aforesaid facts, that the plaintiff is entitled to recover the amouut of the note attached with interest thereon, computed up to this 5th day of February, 1867, and amounting to forty-nine dollars and sixty cents.</p> <p>But if the court, upon the facts above reported, should hold and decide that the plaintiff is entitled to recover the amount of the note herein first above referred to, and given up to the defendant, then I find that the plaintiff recover of the defendant the amount of said note with interest, computed up to said 5th day of February, 1867, and amounting to ninety-five dollars and ten cents.</p> <p>On the report of the referee, filed in said cause, the court, at the September term, 1867, Ainsworth, Assistant J., presiding, rendered judgment, proforma, for the sum of ninety-five dollars and ten cents damages, and his costs, to which judgment the defendant excepted.</p>

<p> Soldier’s Bounty. </p> <p>Where a soldier, by re-enlisting and applying on the quota of a town, complied with all the terms and conditions of a rote of the town constituting a general offer of bounty to all applying on that quota and the town has the benefit of the service performed, he is entitled to recover, notwithstanding he did not enlist in reliance upon the offer.</p>

Action ou the case to recover damages for the loss of a horse and injury to a wagon and harness, occasioned by an alleged insufficiency of a highway. The case was referred, and tho referee reported in substance as follows : The accident happened in the village of Pawlet, September 11, 1867.

Case to recover for damage sustained by the plaintiff to Ms horse, wagon and harness, through the alleged insufficiency of a highway in the town of Bennington. Plea, the general issue. Trial by jury, at the December term, 1870, Wheeler, J., presiding, and verdict for the plaintiff, embracing the entire damage. Exceptions by the defendant.

<p>This is a bill of foreclosure brought by the orator to foreclose the equity of redemption in a mortgage executed by the defendant on the 25th day of March, 1861.</p> <p>The mortgage is not in the ordinary form, but is what is usually termed a sweeping mortgage.</p> <p>The mortgage at the time of its execution was to secure the payment of a five hundred dollar note, the consideration of which is the principal matter in.controversy.</p> <p>On the one hand, the orator claims that the consideration of the five hundred dollar note was $200 paid down to the defendant, and money paid to the Stark Bank by taking up a $373.15 note.</p> <p>The defendant claims that the consideration of the five hundred dollar note was to provide for the payment of a $448 note, called the Godfrey note, about to fall due at the Bank of Troy, upon which one Samuel L. Godfrey was an endorser, which note has been since paid by the defendant, Harbour.</p> <p>The case was referred to a special master, to take the account of the amount due on the mortgage. The master made a special report setting forth the facts found by him, and all the evidence, pro and con, from which he found the facts. The master stated his finding upon the main question as follows:</p> <p>From the whole evidence in the case before the master, both upon the first and second hearing and examination, the master fails to find 'that the said five hundred dollar mortgage note was given for and to cover the said note of four hundred and forty-eight dollars above described, or that the said five hundred dollar mortgage note was satisfied by the payment of the said four hundred and forty-eight dollar note.</p> <p>The master submits the question to the honorable court of chancery, upon the evidence reported.</p> <p>Now if the chancellor shall find from the testimony and evidence reported in the case that the claim of the orator upon the five hundred dollar mortgage note is not sufficiently made out and sustained, or that the evidence and proofs upon both sides establish the claim on the part of the defendant, that the said five hundred dollar mortgage note was given for and to cover the said note of four hundred and forty-eight dollars, then the master reports that the item in the orator’s claim for the said five hundred dollar mortgage note, and the interest thereon, should be disallowed, and the amount thereof struck out of the orator’s claim, as allowed by the master in his previous report.</p> <p>No exceptions were filed to the master’s report.</p> <p>Upon the hearing on the pleadings and report at the June term, 1869, Prout, Chancellor, it was ordered that the report be accepted and in all things confirmed, including the largest sum reported in favor of the petitioner, and an order was made as to payments, and in default thereof that defendant be foreclosed, &c., from which the defendant appealed.</p>

<p>Trespass guare clausum for entering on lands in Sunderland and cutting timber. Plea, the general issue. Trial by jury at the June term, 1870, Wheeler, J., presiding.</p> <p>On the trial it appeared that Sunderland was granted July 30, 1761, by Benning Wentworth, then Governor of the Province of New Hampshire, to sixty-eight proprietors, and that the Society for the Propagation of the Gospel in Foreign Parts was one of the proprietors, and John Searls and John Quackenbush two others. That upwards of nine thousand acres of land in Sunderland is yet undivided and common.</p> <p>That on the 26th day of September, 1831, 'the Society for the Propagation of the Gospel, by power of attorney under its corporate seal, authorized Alexander Y. Griswold and others, and the survivors or survivor of them, to take possession of all the lands belonging to the society in this state, with full power for them, the survivors or survivor, or a majority of them, to appoint under-agents to lease the society’s lands and collect the rents ; that on the 6th day of February, 1833, these agents appointed Major Hawley agent for that society for- the county of Bennington, by a power of attorney executed to him for that' purpose, which gave him control of the lands of the society in that county. He has ever since continued to be such agent, but his said power of attorney has been lost for several years.</p> <p>That in 1841 Major Hawley caused this power of attorney to be recorded in the land records of Shaftsbury. Neither of said powers of attorney have ever been recorded in the land records of Sunderland, but a copy of the record of said power of attorney to Hawley in Shaftsbury, was, on the 7th day of May 1870 recorded in Sunderland.</p> <p>All the other material facts in the case are stated in the opinion of the court. The court directed a verdict for the defendant. Exceptions by the plaintiffs.</p>

Trespass, qú. cl. fr. Plea, the general issue. Trial by jury, June term, 1870, Wheeler, J., presiding. Upon the trial the plaintiff claimed to recover for entering upon a part of lot No. 28, in Arlington, by the defendant, and cutting and carrying away trees.

This was an action of assumpsit in the common counts, and was referred to a referee, from whose report it appeared that in 1865 the plaintiff conveyed certain lands to the defendant, and took a mortgage back, conditioned that the defendant should support the plaintiff and wife during their lives, &c. The defendant moved on to said lands in pursuance of this arrangement, but soon after his property was attached by Harris & Son, to whom he was indebted, and he finally left the…

<p> Contract. </p> <p>A party having agreed to draw logs to a mill for another, a distance of about three mthes, at a speoifiod price, the latter to furnish for the purpose a pair of four year old steers handy and every way suitable for such work, is not obliged to accept a pair of old oxen, suitable for the work, but which could not travel as fast as ordinary four year old steers, and is not liable for not performing the job with such oxen.</p>

Trustee process. The commissioner appointed to take the disclosure of the trustee reported substantially as follows : This case came to the county court by appeal taken by the claimant from the judgment of a justice of the peace, charging the said Vorce as trustee. In the winter and spring of 1867, John G. Shants & Co., the principal defendants in this case, carried on a saw-mill in Searsburg.

Assumpsit to recover a town bounty. Plea, the general issue. The case was tried upon an agreed statement of facts which are fully stated in the opinion of the court. The county court, at the September term, 1869, Barrett, J., presiding, rendered judgment, pro forma, for the defendants, under a rule that the plaintiff’s damages should be assessed at $108, and interest from July 1st, 1867, with leave to plaintiff to except.

Assumpsit, for a town bounty. Plea, the general issue. Trial by court, September term, 1869, Barrett, J„, presiding, upon the following agreed statement of facts: In July, 1863, the plaintiff being enrolled with other citizens of said town of Putney, in said town, as a soldier, or person liable to do military duty for the United States Government in the work of suppressing the then existing rebellion, was, in said month of July, 1863, under the conscription act then in…

Bill in chancery. The prayer of the bill was that the defendant Fire Insurance Company may be restrained from paying certain insurance money to the defendant Mundell, and be decreed to pay the same to the orator. The bill alleged facts tending to show, among other things, that the premises in question were not exempt as a homestead from being levied upon on the orator’s execution. Mundell’s answer denied these allegations and set up averments to the contrary.

* This action was referred and the referee reported substantially as follows: The suit in this case was brought for the money which was paid by the plaintiff to the Jamaica Leailer Company, as the consideration for executing and delivering a promissory note to the plaintiff of four thousand dollars, purporting to be signed by said company and certain sureties.

This.was an. action of trover, wherein the plaintiff claimed to recover for the alleged conversion of an instrument in writing. Plea, the general issue. Trial' by jury, September term, 1870, Barrett, J., presiding. Upon the facts, which are fully stated in the opinion of the court, the county court ruled pro forma that the plaintiff was entitled .to recover, and directed a verdict for the plaintiff, to which the defendant excepted.

Trespass on the freehold with counts in case. Plea, the general issue, and trial by jury, April term, 1870, Barrett, J., presiding. Held: pro forma, that the defendant was a trespasser in digging his ditch outside the three rod reservation, and that for this act the plaintiffs would be entitled to recover at least nominal damages, to which ruling the defendant excepted.

Action on-the case. Plea, the general issue and trial by jury, September term, 1870, Barrett, J., presiding. The plaintiff claimed to recover of the defendant for diverting a stream of water running over and upon lauds of the defendant, and causing the same to run over and upon lands of plaintiff.

General assumpsit, to recover the price of a patent sugar évaporator. Plea, general issue, and trial by jury, September term, 1870, Barrett, J., presiding.

Assumpsit. The case was referred and the referee reported as follows: In January, 1857, and for some years previous to that time, the plaintiffs, whose firm consisted of A. B. Childs and J. M. Childs, and the defendants, whose firm then consisted of Warren Boyd, Philander Parmalee and Wm. B. Haskell, were merchants doing business in Wilmington.

This was an action on the case for damages sustained by the plaintiff by reason of an insufficiency of a highway of the defendant. Trial September term, 1869, Barrett, J., presiding. Upon the trial, the contest was wholly with reference to the amount of damages the plaintiff was entitled to recover.

This was an action to recover for a quantity of intoxicating liquor, and was referred to a referee, who reported substantially as follows: In September, 1866, the plaintiffs formed a copartnership by the name of “ Tuttle &.Reed ” and carried on the business of selling intoxicating liquors at New Haven, in the State of Connecticut, and Reed, one of the plaintiffs, for years prior to that time had acted as traveling agent for Tyler & Frost, who were grocers and dealers in…

<p>[In Chancery.]</p> <p> Conditional Sale. Mortgage. Machinery. Fixture. </p> <p>Where a person sells machinery under a condition that it shall remain the property of the vendor until the price is paid, but it is of such character that when it is put in its place in a mill it would pass under a mortgage of the real estate, and the vendor had reason to suppose it would be, and it was, so placed, before it was paid for: held .that the equity of a subsequent mortgagee, without notice of the vendor’s claim and in reliance upon the vendee’s title being absolute, is paramount to that of the conditional vendor.</p> <p>But for machinery so sold and delivered, and being in the yard of the mill but not actually placed in the mill at the time of the execution of the mortgage, but put in afterwards, the right of the conditional vendor is paramount to that of the mortgagee. But the mortgagee would hold it as against the mortgagor.</p> <p>Machinery consisting of a circular saw-mill and saw, belts to drive the saw, water-wheel-gears, shaft and box to the same, and drum flanges, all put in its place in a saw-mill, pass under a mortgage of the real estate, as between the mortgagor and mortgagee.</p>

Action oh the case for false warranty and fraud in exchange of horses. Trial by jury, on the general issue, at the September term, 1869, Barrett, J., presiding. The plaintiff’s evidence tended to prove all the material averments of the declaration. The defendant’s evidence tended to prove the contrary so far as the alleged fraud is concerned.

<p>[In Chancery.]</p> <p> Will. Limitations. Charity. Parties. </p> <p>Under a provision in a will in respect to the property in dispute, as follows: “I give, devise and bequeail the-same to my son Frederick Zelotes Dickinson, to have and to hold the same to him the said Frederick Zelotes, his lineal heirs and assignees forever; provided, however, if the said Frederick Zelotes shall die without lineal heirs, or upon the failure of his and my lineal heirs,” that it be appropriated for the establishment and support of an industrial school in the village of Brattleboro, &o. \ it was held that the limitation over for the establishment of the school is too remote, and is void both as to the personal property and real estate.</p> <p>Whether the state’s attorney would have been a proper party complainant or not, the orators, being the said village of Brattleboro and two parents (of vagrant children in that vicinity, sufficiently represented the charity to warrant a decision of the ease on the merits.</p>

Action on the case as per declaration, which was as follows: That on the 8th day of May, A. D. 1850, at Brattleboro aforesaid, the said plaintiff was, and for a long time before had, and ever since has been possessed of a large and valuable tract or parcel of land, covered with a large growth of pine and other timber, containing a large quantity to wit: Two hundred acres.

<p> Bankruptcy. Discharge. Judgment in rem. Trustee Process. </p> <p>A discliargo in bankruptcy will not prevent a creditor of the bankrupt, who obtained a lien upon a fund by trustee attachment more than four months prior to the commencement of proceedings in bankruptcy, from taking a decree in rem against the said fund.</p>

<p>The case was referred to a referee, who reported in substance as follows:</p> <p>The plaintiff was the owner of certain premises used as a store and bakery, which he, on the 22d day of June, 1864, leased to Henry R. Horton and Peter Munkel for the term of five years. When the building was thus leased, certain machinery used therein in connection with the bakery, was run by a small steam engine, and the water used for generating steam was conducted to the building by an aqueduct. On the first day of April, 1865, the defendant Smith and said Horton purchased the interest of Munkel, and carried on the baking business until about the first of September, 1866. During the summer of 1865, the aqueduct which conducted the water to the building failed, and Smith & Horton were obliged to obtain a supply by other means ; and concluded that it would be more economical for them to dispense with the engine and put in a horse power. And in the spring of 1866, they obtained the plaintiff’s consent to make some alterations in the basement of the building and to put in a horse power. In August or September, 1866, Horton quit the business, and the defendant Robbins then became interested as the partner of Smith, and on the 22d day of December, 1866, Horton, with the consent of the plaintiff, assigned his interest to the defendants. The engine and bother remained in the building. On the 27th day of December, 1866, the written agreement between the plaintiff and the defendants of that date and hereto annexed was executed, and the defendants occupied the premises with the engine and bother therein, till the 10th day of April, 1867. They were, however, anxious to have them taken out of the building to give them more store room, and they wanted a door cut on the north side of the basement leading out of the work-room to the back yard of Herrick & Wyman, for the purpose of ventilation, and to accommodate them in getting to a cellar they had leased of said Herriclc & Wyman, and which they then occupied, and on several occasions spoke to the plaintiff about it.</p> <p>On the 10th of April, 1867, the parties made a verbal agreement that the defendants might remove said engine and bother from the building at their expense, on condition that they were to plaster overhead and lay a floor underneail where the bother was, and if the plaintiff ever wanted it back he was to put it back at his own expense. Under this agreement nothing was said about who was thereafter to take charge of the engine, or of its then condition ; but from the facts ¡Jroved and circumstances, I find that the parties then regarded the engine and bother as delivered to and accepted by the plaintiff, and wholly subject to his control, although the principal parts of it remained in the building and upon the premises occupied by the defendants after it was removed.</p> <p>The verbal contract was made in the morning, and the parties went immediately to work and removed the engine and bother from the building. The plaintiff was present a part of the time- and advised and assisted in. their removal, took charge of some of the'pipe connected with the engine and assisted to block up the bother in the yard, where it remained afterwards. After the engine was removed, the principal portions were stored in the basement of a building occupied by the defendants, and some parts lay out in the back yard, all of it where the plaintiff, who was frequently at the bakery, could see it and understand its condition.</p> <p>The defendants did replace the parts of the building and the windows and doors that were removed for the purpose of putting in the horse power, according to the agreement entered into on the 27th of December, 1866. They did the plastering over head and laid the floor according to the verbal agreement made on said 10th day of April, and they fulfilled their part of the agreement made on that occasion. The engine was a good deal injured by neglect. It would have cost $300 to put it in repair, replace it and the bother in the building, and put it in good running order, but it then would have been worth $100 more than when it was taken out.. -If the defendants were bound to replace the engine and bother in the building, the plaintiff was damaged by their neglect two hundred dollars, and he ought to recover that sum with lawful interest thereon from the termination of said lease. According to said written agreement of Dec. 27, 1866, it was the duty of the defendants to take down said engine, and clean and properly oil it. Machines of this kind injure by standing unused unless properly attended to. The plaintiff, on several occasions previous to the 10th day of April, 1867, requested the defendant Robbins to take the engine to pieces and clean it, but the defendants neglected to do so, and never cleaned it. To what extent the engine suffered from this neglect previous to said 10th day of April, the evidence does not very satisfactorily disclose, but from the evidence I find that it was injured by such neglect previous to the said 10th day of April ten dollars, and if from the facts reported, the plaintiff is not entitled to recover said $200, but is entitled to recover for this neglect, I find that he should recover the sum of ten dollars, and interest thereon from April 10th, 1867. If from the facts reported the court consider the verbal contract made April 10th, 1867, after the breach of the contract to clean the engine, is in law an answer and defense to such breach of contract, I find that the parties then understood that the agreement then made covered all claim on the part of the plaintiff, under the contract in writing executed December 27, 1866, relative to the condition of said engine at that time, and that the plaintiff is not entitled to recover for said injury incurred previous to said 10th day of April.</p> <p>The agreement of December 27th, 1866, between Jonas Cutler and said Smith & Robbins, was as follows:</p> <p>In consideration that the said Cutler has heretofore leased unto the said Smith & Robbins, his the said Cutler’s tenement in Cutler’s block, situated in said Brattleboro, for the purposes of a store and bakery, and in consideration that the said Cutler has consented that the 'said Smith & Robbins may use horse power instead of the steam engine now in said building, the said Smith & Robbins hereby agree to take to pieces said engine, and clean the same, and at the expiration of said lease to put said engine together again and leave it in good running order, ordinary wear and tear excepted: And also the said Smith & Robbins, having removed sundry doors and windows and made some alterations in said building, for the purpose of using to advantage said horse power, hereby agree to and with said Cutler, that at the expiration of the lease aforesaid, they will replace those portions of said building so removed as aforesaid, and will leave the same in the condition it was before said alterations were made, ordinary wear and tear excepted, and loss by fire excepted.</p> <p>The county court having accepted the report of the referee and rendered judgment thereon for the plaintiff to recover the sum of ten dollars, as found by said referee, both parties excepted.</p> <p>arguedthat parties to a simple agreement in writing, by a subsequent verbal agreement, founded upon a new consideration, may, in the language adopted by Prout, J., in Flanders v. Fay, 40 Vt., 316, “ enlarge the time of performance—may vary the terms of the contract, or may waive and discharge it altogether.” Porter et al. v. Stewart, 2 Aik., 417 ; Lawrence v. Dole, 11 Vt., 549 ; Sherwin et al. v. Rut. Bur. R. R. Go., 24 Vt., 347; Field, Adm’r, v. Mann, 42 Vt., 61; Goss v. Lord Nugent, 27 E. C. L., 33.</p> <p>maintained that it is a well established principle of the common law, that a contract in writing cannot, after breach, be discharged by words. Langdon v. Stokes, Croke’s Charles, 380 ; Railer's Nisi Prius, 152 ; Milward v. Ingram, 2 Mod., 43 ; 1 Mod., 36 ; Edwards v. Weeks, 2 Mod., 59 ; Swift’s Digest, 300 ; Hotchkiss et al. v. Downs, 2 Conn., 138 ; Lawrence v. Dole, 11 Vt., 555 ; Bender et al. v. Sampson et al., 11 Mass., 44 ; Buell v. Miller, 4 N. H., 196 ; King v. Gillette, 7 M. & W., 56 ; Rhodes v. Thomas, 2 Carter, (Ind.,) 638 ; Flanders v. Fay, 40 Vt., 316.</p>

Assumpsit to recover a town bounty. Plea, the general issue.

The case was submitted to the court, upon the following agreed statement of facts. This is an action on the case against the sheriff of Windham county, for the default of his deputy, Chandler Pratt. Plea, the general issue. Trial by the court, September term, 1869, Barrett, J., presiding. The defendant was sheriff of Windham county, and Chandler Pratt his deputy. George H. Wilbur owed Willard Shepard $241.12.

Trespass on the case to recover the forfeiture provided in the act of 1865. Session Laws of 1865, No. 6, p. 17.

Ejectment for Lot No. 9 in the 9th. range of lots in Weston. Plea, general issue, and trial by jury at the December term, A. D., 1868, Barrett, J., presiding. On trial, the plaintiff gave in evidence letters of administration upon the estate of his intestate, duly issued by the probate court for the district of Windsor, and dated February 10, 1853.

<p>Assumpsit. This action was brought before J. D. Cushing, a justice of the peace. The plaintiff appealed from the decision of the justice discharging the trustee. The record shows that the suit was continued from time to time while pending before the justice, from the 15th of May, the return day thereof, to the 25th of August, 1869 ; that one of the continuances was by L. D. Horton, a justice other than the one before whom the suit was pending, and was from the 22d-of May to the 10th of July, 1869, a period exceeding thirty days; that it was also continued from the 10th of August to the 25th of August, by the justice who signed the writ, but the record does not show whether the defendant or trustee appeared; that on the 25th day of August, 1869, the defendant and trustee both appeared, and filed two pleas or motions in abatement, the substance of which is stated in the opinion of the court; but the record fails to show that any action was taken by the court in reference to them, or that they were insisted upon by the defendant or trustee. The record further shows that, after the filing of the pleas in abatement, the defendant pleaded that “ he did not owe the plaintiff,” a jury trial was had upou the merits, a verdict was returned for the plaintiff, judgment was rendered thereon against the defendant, and the trustee was discharged. From the judgment of the justice discharging the trustee, the plaintiff appealed, and the appeal was entered in the county court at the December term, 1869, at wbicli term the defendant and trustee each filed a motion to dismiss, alleging therein as causes for dismissal :</p> <p>1. That the suit had been continued while pending before the justice from time to time from the 15th of May to the 25th of August, a period in the aggregate exceeding three months.</p> <p>2. That a justice other than the one before whom the suit was pending had continued the cause from the 22d of May to the 10th of August, a period exceeding thirty days.</p> <p>A copy of the justice record was made a part of the motion, and at the December term, A. D. 1870, the county court, Barrett, J., presiding, sustained the motion to dismiss, and ordered the suit dismissed. Exceptions by the plaintiff.</p> <p>The pleas in abatement before the justice were waived; the defendant came into court, pleaded in abatement, and without waiting for a judgment thereon, voluntarily pleaded to the merits, and had a trial. 3 Vt., 265 ; Burnham v. Webster, 5 Mass., 266. The case, so far as the defendant is concerned, came into the county court only for affirmance. Gen. Stat., 317, § 81. •</p> <p>The irregularity of the continuance by justice Horton was matter in .abatement, and should have been taken advantage of at the earliest opportunity, but was not insisted on till after a trial on the merits and entry in the county court. Stone v. Proctor, 2 D. Ohipman, 108 ; Howe v. Thompson, 8 Vt., 220 ; Austin v. Smith, 23 Vt., 704 ; Whedoch v. Sears, 19 Vt., 563 ; Hammond cf Draper v. Wilder, 25 Vt., 348 ; Wilder v. Stafford, 30 Vt., 399 ; Bennett v. Allen, lb., 684 ; lb., 262 ; 35 Vt., 565 ; 37 Vt., 168 ; Gould’s Pleadings, ch. 5, § 153.</p> <p>The appeal brought up the whole case. Gen. Sts., 317. The statute does not provide what shall be done with the principal defendant, in a case like this, and it is for the court to render such judgment as the law will warrant.</p> <p>The continuance by Horton for more than thirty days discontinued the suit. Gen. Sts., 282, § 42. Whitcomb v. Hood, 20 Vt., 49 ; Brown v. Stacy, 9 Vt., 118. The subsequent proceedings did not cure the defect. Crawford v. Cheney, 12 Vt., 567 ; Hinman v. Swift, 18 lb., 315; Phelps v. Birge, 11 lb., 161 ; BabcocJc v. School District, 35 lb., 250 ; StoJces v. Annesby, 1 Oro. Miz., 367.</p> <p>The continuances for a time “ exceeding three months ” discontinued the suit. Gen. Sts., 282, § 41.</p>

<p>General assumpsit by the plaintiff as administrator of J. P. Brown. Plea, the general issue, and trial by the court at the May term, A. D. 1870, Barrett, J., presiding. Judgment for the defendant and exceptions by the plaintiff. All tho material facts in the case are stated in the opinion of the court.</p>

<p> Booh Account. Warranty. Cribbing Horse. </p> <p>In an action of book account for the agreed price of a horse, the defendant may show a breach of warranty by tho plaintiff in the sale in reduction of the damages for nonpayment of the price. The warranty being a part of the contract of sale, this case is distinguishable from those where the claim is for damages for breach of independent undertakings, which claim can be adjusted only in an action on the undertakings.</p> <p>Not decided whether a horse that is called a “eribber” is physically sound; but a warranty that a horse is “sound and right,” means that the horse is right in conduct and behavior as to all matters materially affecting its value as well as in physical condition.</p>

Assumpsit for money had and received. Plea, non assumpsit. Trial by jury, May term, 1870, Barrett, J., presiding. The plaintiff gave in evidence a certificate of the mustcr-in of the intestate, a power of attorney by him to the defendant to receive payment of the town bounty of $500, from the town of Rockingham, and a receipt signed by the defendant, showing the payment to him of said $500 town bounty, December 11, 1863.

Assumpsit to recover town bounty; Plea, non assumpsit, and statute of limitations, and notice of special matter of defense. Replication and rejoinder. Trial by the court, December term, 1870, Barrett, J., presiding. The parties gave in evidence an agreed statement of facts, and the record of several warnings and votes of the town of Springfield.

Assumpsit, to recover a town bounty under the vote and upon the facts stated in the opinion of the court. Plea, the general issue, and notice. Trial by the court, Barrett, J., presiding, May term, 1870. Judgment for the defendant. Exceptions by the plaintiff. The only question made was on the construction of the vote, whether it was an undertaking on the part of the town with any persons, who should count on the quota under the call, to pay them a bounty of 1500.

Removal of pauper, tried upon a case stated as follows : It is agreed by and between the towns above named, to try tho case between them as above named, which is a question concerning the legal settlement of one Lydia Cailerine Buck, a pauper now supported by said town of Reading at the Insane Asylum at Brattleboro, Vt., in all its stages to final judgment thereon, upon the following statement of facts, to wit: The said Lydia is the legitimate daughter of one Richard Warren,…

General assumpsit, with specification. Plea non assumpsit and offset. Trial by jury,'May term, 1870, Barrett, J., presiding.

Bill in Chancery. The facts material to be stated were as follows: The orators, on the 11th day of January, 1849, became the owners in severalty of twenty-five acres of land in Ludlow, which, with other lands, was subject to a mortgage executed by Alfred Warner to Oliver Tarbell, to secure a debt of about $895 due from Warner to Tarbell.

<p>* Assumpsit upon appeal from commissioners, as per declaration. To which defendant pleaded non assumpsit and five special pleas in bar. To the 8d, 4th, 5th and 6th of said pleas the plaintiff demurred.</p> <p>The court, at the December term, 1870, Barrett, J., presiding, •proforma adjudged said pleas named in said demurrer sufficient, and rendered judgment for the defendant. To which the plaintiff excepted.</p> <p>The first count of the declaration is upon a promissory note alleged to have been given by Chester Baxter to the University of Vermont, August 4, 1854, for $500 ; and sets forth in substance the provision of § 12 of the act of the legislature incorporating the University of Vermont and State Agricultural College, and alleges that, on the 15th day of November, 1865, at Burlington, the said corporation of the University of Vermont and State Agricultural College, in pursuance to a legal warning, was duly organized, and the said University of Vermont did then and there vote to accept the act of the legislature of the state of Vermont, passed at its October session, 1865, entitled an act to incorporate the University of Vermont and State Agricultural College. And did further at said place and time vote that, pursuant to the provisions of said act, said University of Vermont would, and did thereby, surrender and relinquish to the corporation created by said act all the property belonging to said University, both real and personal, and all the rents, profits and income arising therefrom, including the proceeds from the sale of land scrip named in said act, for the purpose and subject to all the rights, trusts and conditions in said act provided.</p> <p>And the said corporation of the University of Vermont did at said Burlington, on said 15th day of November, 1865, vote to accept the act or charter of the united corporations, and elected nine persons of their number, who, in pursuance of said act of incorporation, should constitute the board of trustees provided for in section two of said act.</p> <p>And the records, votes and doings of said meeting of said corporation were duly certified by the secretaries of their respective corporations, and left for record and duly recorded in the office of the Secretary of State at Montpelier, &c.</p> <p>The second count is upon a promissory note alleged to have been given by said Baxter to the University of Vermont, August 4,1855, for $500.</p> <p>The third count is general, for money had and received by said Chester Baxter of the University of Vermont.</p> <p>The fourth count is general, for money due and owing by said Chester Baxter to the University of Vermont “ by virtue of a certain subscription paper. ”</p> <p>And to each count, after the description of the cause of action, the same allegations are made as in the first count.</p> <p>Pleas. 1st, non assumpsit; 2d, the statute of limitations; 3d, that the said subscription paper referred to in said fourth count was a proposed gift or gratuity on the part of said Chester Baxter to said University of Vermont, and was so understood by and between them at the time said Chester Baxter signed the same. And that at the time said Baxter signed said subscription paper he was largely indebted to various persons in an amount much beyond his ability to pay, and was then and there insolvent and unable to pay his just debts into a large sum, to wit, the sum of ten thousand dollars, and so remained insolvent from that time to the time of his deail ; and many of the said debts existing against the said Baxter at the time he signed said subscription paper, as aforesaid, have never been paid or satisfied, and still remain against his estate, and have been duly proved and allowed against his estate by the commissioners on the same, to wit, (naming the creditors and their respective claims.)</p> <p>And said estate has not assets sufficient to pay the same into a large amount, to wit, the amount of ten thousand dollars, and is wholly insolvent.</p> <p>4th. The same as 3d plea, and alleges that at the time said Baxter signed said subscription paper, he, said Baxter, was largely indebted to various citizens of this state, to wit, in the amount of fifty thousand dollars, and had not then property within this state sufficient to pay his said indebtedness to citizens of this state, and was then and there in insolvent circumstances, and so remained ever thereafter, and at the time of his deail was wholly insolvent, and unable to pay his just debts due to the citizens of this state, as aforesaid, in a large sum, to wit, the sum of ten thous- and dollars ; and many of the said debts so existing against said Baxter at the time of his signing said subscription paper as aforesaid, have never been paid or satisfied and still remain against his estate, and have been duly proved and allowed by the commissioners on his estate ; and said estate has not assets sufficient to pay the same into a large amount, to wit, the amount of ten thousand dollars, and is wholly insolvent.</p> <p>5th. The same as the 3d plea, and alleges that at the time said Baxter signed said subscription paper, he, Baxter, was largely indebted to various persons in a large amount, to wit, fifty thousand dollars, which have never been paid and his estate is wholly insolvent and has not assets sufficient to pay the said just debts against the same, so proved and allowed as aforesaid.</p> <p>6th plea alleges that the said promissory notes, said subscription paper, and all the causes of action described and set forth in said declaration, were ju’oposed gifts or gratuities on the part of the said Baxter to the said University of Vermont, and were so understood between the said parties at the several times when the same were signed. And at the several times when said Baxter signed said notes and said subscription paper, said Baxter was largely indebted to various persons in a large amount, and so remained indebted ever thereafterwards until his deail, and a large amount of his said just debts so existing against him at the several times of signing said papers have never been paid or satisfied, and have been duly proved and allowed against his estate by the commissioners on the same ; and said estate is wholly insolvent, and has not assets sufficient to pay the said debts, so proved and allowed against the same, into a large sum, to wit, the sum of ten thousand dollars.</p> <p>Replication. Issue joined on first and second pleas.</p> <p>Special demurrer to 3d, 4th, 5th, and 6th pleas, alleging the following causes:</p> <p>First.—That the said several pleas, and each one of them, in manner and form, as the same are. above pleaded, amount to the general issue and tend to great and unnecessary prolixity of pleading ; and the matters therein contained, if issuable, are issuable under the plea of the general issue.</p> <p>Second.—Because the matters set forth in said several pleas cannot be made use of by the executor of said Chester Baxter, as a defense to this action.</p> <p>Third.—For the reason that none of said several pleas set forth any knowledge of insolvency on the part of the testator at the time of signing said subscription paper or giving said note, or that said Baxter thereby intended to defraud or did defraud his creditors.</p> <p>Fourth.—For that there is no allegation in either or any of said pleas, that the creditors of said Baxter have ever been hin-( dered, delayed or prevented in the collection of their said debts, or have ever been in any manner defrauded or injured thereby.</p> <p>Fifil.—Because said third, fourth, fifil and sixth pleas are in other respects uncertain, informal and insufficient.</p> <p>Joinder in demurrer.</p> <p>The two promissory notes declared upon acknowledge upon their face a consideration, and the subscription counted upon, having been accepted and acted upon, also became a contract based upon a sufficient consideration. Patchen v. Swift et al., 21 Vt., 292; Vt. Central R. R. Co. v. Clayes, 21 Vt., 34; University of Vt. v. Buell, 2 Vt., 48; State Treasurer v. Cross et al., 9 Vt., 289; Troy Academy v. Nelson, 24 Vt., 189 ; Amherst Academy v. Cowles, 6 Pick., 427'; Dartmouth College v. Woodivard, 4 U. S. Cond. R., 547.</p> <p>A contract made upon a sufficient consideration to enable the promisee to sustain an action upon it at law, cannot be held to be a “ gratuity ” or “ proposed gratuity.”</p> <p>If indebtedness at the times of making a contract, and insolvency at the time of deail, are sufficient to entitle an administrator to contest successfully the validity of the contract, very few contracts could be enforced against such an estate.</p> <p>The executor of Baxter cannot defend this suit unless the testator could have done so. The testator only could have done so for the reason that both the subscription and the notes are’ entirely without consideration. Whether such is the case can only appear upon the facts as found by a jury, or the court, upon trial.</p> <p>The demurrer admits that the notes and subscription were proposed “gifts er gratuities’’’’ to the University of Vermont. The plaintiff can stand in no better situation than if the proposed gift had become a perfected gift by payment. A perfected gift is not good as against existing creditors. 2 Black. Com., 441; 2 Kent’s Com., 440 ; Read v. Livingston, 3 John. Ch., 481, 500 ; Sexton v. Wheaton, 8 Wheat., 229 ; Jackson v. Seward, 5 Cowen, 67.</p> <p>The executor represents the creditors so far as their rights are concerned; they are to be first considered, and have the first right to the property. Gen. Stat., 380, §§ 29 & 32.</p> <p>The declaration is defective in not alleging an acceptance of the new corporation by the State Agricultural College and a surrender of their property, &c., expressly required by the act before the new charter can take effect. Acts, 1865,102, § 12.</p> <p>The general demurrer strikes back to this defect in substance in plaintiff’s declaration.</p>

General assumpsit to recover the price of a mowing machine bid off by the defendant, at an auction sale, at $50. Plea-, the general issue, and trial by jury at the December term, A. D. 1869,. of the Orange county court, Peck, J., presiding. Verdict for the plaintiff and exceptions by the defendant.

This was an action of assumpsit, the plaintiff declaring in special and general counts claiming to recover a town bounty. Plea, the general issue, and trial by jury at the December term, 1870, Ross, J., presiding. There being no conflict in the evidence, and the facts appearing therefrom as stated in the opinion of the court, the county court directed a verdict for the defendant. Exceptions by the plaintiff.

This was an action on the case for slander. Plea, general issue, and trial by jury, at the June term, 1870, Peck, J., presiding. After verdict for the plaintiff for five dollars damages, the plaintiff moved to set aside the verdict, and for a new trial, and filed affidavits in support of the same. The reasons for the motion are stated in the affidavits hereafter set forth.

Assumpsit, declaring specially upon a promissory note signed by the defendant and payable to Betsey Ayer or order on demand. Held: and ordered a verdict for the defendant, to which the plaintiff excepted.

Replevin of a colt. The defendant filed a plea in abatement, also a motion to dismiss the suit on account of defective and insufficient service. Plea and motion demurred to by plaintiff.

Case to recover for an injury to the plaintiff and his team caused by the alleged insufficiency of a highway. Plea, the general issue, and trial by jury at the June term, 1870, Peck, J., presiding. Yerdict for the plaintiff, and exceptions by the defendant.

Assumpsit to recover a bounty offered by the defendant for apprehending two criminals or persons that escaped from jail. Plea, the general issue. Trial by jury, March term, 1870, Peck, J., presiding. The facts are stated in the opinion of the court. The defendant’s counsel claimed and requested the court to chai’ge that the plaintiff could not recover the reward for the reason that he was an officer, a deputy sheriff, at the time.

Assumpsit for a soldier’s bounty. Plea, general issue. Trial by jury, March term, 1870, Peck, J., presiding. It was conceded the plaintiff enlisted in August, 1863, from the town of Middlesex, where he resided, and to the credit of the town of Middlesex, in the 3d battery of Vermont volunteers, without the request or knowledge of said town, and without any expectation of bounty for so doing. On the VHh October, 1863, the President called for 300,000 volunteers.

Bill in chancery. The said Orange S. Clark, who brought this bill in chancery in his life-time, alleged in bis bill that about the year 1886 be resided on a piece of real estate situated iu Groton village ; that prior thereto he had made negotiations for its purchase, and erected buildings thereon, with a view of making it a homestead for himself and family ; that he at that time was a vigorous man to labor at bis trade, which was that of a carpenter and joiner; that in the…

The following statement of the case is by a member of the court. In 1832 and 1833 the New Hampshire and Vermont Conference of the Methodist Episcopal Church entered upon, and prosecuted to a successful result, the establishment of a seminary of learning, to be finder the charge and patronage of said Conference.

General and special assumpsit to recover a town bounty. Plea, the general issue, and trial by jury at the March term, 1870, of the Rutland county court, Wheeler, J., presiding.

This was an action of trespass upon lot No. 125, in Bolton. Plea, the general issue, and trial by jury, September term, 1869, Chittenden county, Pierpoint, 0. J., presiding. It was conceded that the lot in question was left undivided in the original division of the town, and that neither party had derived any title from the original proprietors.