Volume 45 — Vermont Reports

Assumpsit for a town bounty. Plea, the general issue, and trial by jury, March term, 1872, Peck, J., presiding.

<p>Trover for the running part of a stage-wagon. Plea, the general issue, and trial by the court, September term, 1871, Peck, J., presiding.</p> <p>Harrington purchased said wagon of Bridgman, upon condition that it should remain Bridgman’s property till paid for. After Harrington had had it awhile, he took it to the plaintiff’s shop for repairs, and the plaintiff repaired it by adding new wheels and new iron axles in place of the old ones, and attached the same thereto by means of the old clips and nuts. The old axle stocks were used on the new axles. Ex'cept as aforesaid, the wagon remained the same as when purchased by Harrington. After it was repaired, -Harrington took it from the plaintiff’s shop without the plaintiff’s knowledge or consent. A few days thereafter, the plaintiff saw Harrington, and took his note for the amount of said repairs, with an agreement thereunder written that the “ running part” of said wagon should be and remain the property of the plaintiff until said note was paid. The plaintiff had no knowledge of Bridgman’s claim, was unacquainted 'with Harrington, — who was in fact unworthy of credit, — knew nothing of his pecuniary ability, and would not have permitted him to take the wagon from his shop without paying for the repairs, had he known when he came for it; and the plaintiff never acquiesced in his taking it as he did, but always intended to enforce his lien thereon, or retain title to the wheels and axles furnished by him ; and the court found that the plaintiff never parted with his title thereto.</p> <p>After the wagon was repaired, Bridgman, never having been paid therefor, knowing it had been repaired, but not knowing by whom, and having no knowledge of the plaintiff’s claim, took it back from' Harrington, and sold it to the defendant, who had no knowledge of the plaintiff’s claim till long after his purchase. The iron axles put in by the plaintiff could easily be detached from the axle stocks without injury to any part of the wagon. The court rendered judgment for the plaintiff for the value of the wheels and axles furnished by him as aforesaid; to which the defendant excepted.</p> <p>This is not a case of confusion of goods. 1 Hilliard on Torts, 550; Maseltine v. Stoelcwell, 30 Me. 237; Bryant v. Ware, lb. 295. Nor a commixture of goods. But it is rather a case of repairs of the wagon, and of a substitution of some new parts for old parts which had been taken out and converted by the plaintiff without the knowledge or consent of the real owner. The question arises between the dona fide purchaser of the running part of the wagon and the plaintiff, who took away the old running part without the knowledge or consent of the true owner, and substituted the new, upon which he claims a lien by virtue of a pretended conditional sale by a third person. Mont. Liens, 86, and Appendix, 99. Harrington had no right to destroy the old wagon, or any part of it, nor could he give that right to another. Ib. 68; Misc.x v. Greenwood, 4 Esp. 174. Neither had he any ownership, as against Bridgman or the defendant, of any part of the wagon, whether old or new, for Bridgman’s lien run on the whole of it. It was the same wagGn after the repairs that it was before. Its identity was not thereby destroyed.</p> <p>Harrington wrongfully took the wagon from the plaintiff’s possession, and no right accrued to him thereby, or to any one else, except upon paying for the repairs. Silsbury y. M’Goon, 3 Comst. 379,390, and Hill’s notes, 381-2-3. The doctrine of confusion and accession applies only in cases of fraud of the one making the confusion. Ryder v. Hathaway, 21 Pick. 298; Pratt y. Bryant et al. 20 Yt. 333. But here there has been no confusion, and no accession. The property can be easily distinguished and separated. Hence no change of property has taken place. Story Bailm. §40; 2 Kent Com. 364-5. This was a conditional sale, and not a lien of a workman for work on the thing bailed. No question can therefore arise as to the lien. Story Bailm. §440.</p>

<p>Mandamus. Construction of Statutes. No. 61 of the Acts of 1867.</p> <p>The provisions of No. 61, of the acts of 1867, entitled “An act relating to State printing,” ■wliioli roíate to advertising for scaled proposals for said printing, are mandatory.</p> <p>But the requirements.of‘said act which relate to the time when said sealed proposals must be deposited in the office of the Secretary of State, wore not intended as a limitation of power upon the part of the officers therein named in examining and acting upon proposals.</p> <p>The writ of mandamus is subject to the legal and equitable discretion of the court, and ought not to be issued in cases of doubtful right.</p>

.Trover for a mare, with a count in case to recover, for the imprudent management of said mare, whereby she died. Trial by jury, September term, 1871, Peck, J., presiding. The plaintiff claimed title to said mare by virtue of a conditional sale thereof by him to one J. Y. Perley.

Trespass for two cows aud one heifer. Trial by the court, March term, 1872, Peck, J., presiding. ■ The property in question was taken by the defendant as constable of the town of Warren, on the 11th day of June, 1870, by virtue of an execution against one Justus L. Whitcomb, a brother of the plaintiff, in favor of a creditor of the said Justus. At the ti.me of said taking, the property was upon a farm in said Warren, occupied and carried on by the said Justus.

This was a complaint for bastardy, made by the said Yergina by the name of Vergina Yine, dated in January, 1871, wherein she represented herself as a single woman. The case was entered at the May term, 1871, and continued to the December term following, at which term it was tried by jury upon the general issue, Redfield, J., presiding. Before trial, John Mason, by leave of court, entered as a party plaintiff, as the husband of said Yergina.

This was an application to the supreme court under § 64, ch. 24, of the Gen. Stat., for laying out a highway through the towns of Barton and Westmore, in Orleans county, and Suttop in Caledonia county. The facts sufficiently appear in the opinTOn of the court.

Assumpsit for money had and received. The case was referred, and the referee reported substantially the following facts : In the fall of 1861, and the winter following, the plaintiff and one McDuffie were partners in buying and selling cattle and sheep. In January, 1862, they, as such partners, purchased a pair of oxen of the defendant for $170.

<p>Assumpsit in the common counts. Plea, the general issue. Trial by jury, February term, 1872, Redeield, J., presiding.</p> <p>The only item in .the plaintiff’s specification, filed by order of court, was for the price of a wagon sold by plaintiff to defendant. It appeared without dispute that the plaintiff left said wagon with the defendant for sale, and that'while in his possession the defendant used it and somewhat injured it. The plaintiff claimed that he left the wagon with the defendant upon such terms that the defendant might himself become the purchaser thereof, which the defendant denied. Some time after the wagon was injured as aforesaid, the parties had a negotiation about the same, and the plaintiff claimed, and his testimony tended to show, that the defendant then agreed to pay for the wagon ; but the defendant claimed, and his testimony tended to show, that he only promised to pay the damage he had done to it, and that the plaintiff declined to fix any sum for such damage, and said that he would defer that till the wa.gon was sold. -</p> <p>The plaintiff requested-the court to charge the jury, that he was entitled to recover in any event; that if they found the plaintiff’s version of the transaction true, he was entitled to recover the price of the wagon ; but if they found the defendant’s version true, he was entitled to recover for the damage to the wagon. The court refused to charge as requested, but charged that the plaintiff was concluded by his specification, and could recover for nothing not included therein; to which refusal and charge the plaintiff excepted. Upon intimation by the court of such ruling, and after the testimony was closed, the plaintiff asked leave to amend his specification so as to include an item to conform to the testimony of the defendant. But the court refused to allow the amendment; to which the plaintiff excepted. The plaintiff requested to be allowed to submit to the jury the question of whether,'upon the proof, he was not entitled to recover upon the defendant’s promise to pay-damage ; but the court refused the request, and charged the jury that unless they found that the defendant agreed to purchase the wagon, their verdict should be for the defendant; to which the plaintiff excepted- Verdict for the defendant.</p> <p>There is no such variance between the specification and proof as will bar the plaintiff’s right of recovery for damages as proved. Brown v. Dennis, 2 Wend. 593 ; MeNair v.'(Hilbert, 3 Wend. 346; Williams v. Allen, 7 Cow. 316 ; Hess v. Fox, Fxr. 10 Wend. 436; Stone v. Pulsipher et al. 16 Yt. 428 ; Porter et al. y. Munger, 22 Yt. 191; Martins. Fames et al. 26 Yt. 476; Gray v. Clary, 9 Cow. 44. If it appears from the defendant’s own showing that the plaintiff is entitled to recover for items not included in the specification, he may recover for them. Williams v. Allen, supra ; Colby’s Practice, 202. Plaintiff is not bound by his account as proferted. Reedy. Barlow, 1 Aik. 145; Loomis v. Barrett, 4 Yt. 450 ; Delaware v. Stanton, 8 Yt. 48.</p> <p>The practice has been uniform to tr$at the claim of the plaintiff as limited to his specification. -Lapham v. Briggs, 27 Yt. 26; Benedict v. Swain, 43 N. JEL ; Dean v. Mann, 28 C'onn. 352; Davis v. Freeman, 10 Mich. 188. The disallowance of the proposed amendment, was matter of discretion, and not revisable in this court.</p>

Trover for a horse of the value of $60. Plea, the general issue, and trial by jury, June term, 1868, Peck, J., presiding. The horse in question was attached by the defendant as constable of Westmore, on the 29th day of' October, 1867, on a writ in favor of one Ashley Bishop against one William Gilfillan.

<p> Partnership. </p> <p>When negotiable paper is rightly taken payable to a partnership, any member of the part nership has authority to bind the firm by indorsing it in the firm name to a bora fide purchaser for value, in due course of business, even though, as between the partners, such paper was the sole property of the partner indorsing it, and the partners had agreed that no member should indorse paper to make the others liable.</p>

Ejectment for land in Lyndon. Plea, the general issue, and trial by the court, June term, 1872, Ross, J., presiding. The plaintiff claimed title to the land in question through a deed from Amasa Knapp to Wm.

Ejectment for certain premises in Peacham. Plea, the general issue, and trial by the court, December term, 1871, Ross, J., presiding. Guy Chamberlin, husband of the plaintiff, who died about 1858, owned the demanded premises, and occupied them at the time of his decease as a homestead, at which time they were not worth over $500. He left no minor children, but left two daughters ; one, married and residing away from home ; the other, unmarried and residing at home.

Assumpsit to recover the amount of a draft. Plea, the general issue, and trial by jury, June term, 1872, Boss, J., presiding.

Book account, originally commenced before a justice of the peace. Judgment against the principal defendant and trustee, and appeal by the claimant only. The appeal was entered at the December term, 1871, and the cause continued to the next term, without an affirmance of the judgment against the principal defendant.

This was an action of trespass qua. clau. Plea, the general issue, and notice. Trial by jury, December term, 1867, Steele, J., presiding.

<p> Conversion. Offset. </p> <p>The defendant delivered his stage horses to the plaintiff to be Icept at an agreed price. There was no promise on the part of the plaintiff, express or implied, to re-deliver said horses to the defendant on demand, other than what might be implied from his agreement to keep them as aforesaid; but the defendant had a right to take them at any and all times, to use in his business, and had always done so until the plaintiff refused to permit him to do so, and detained them from him. Held, that such refusal and detention was a tort, and a conversion of the horses, and not the proper subject of a plea in offset.</p>

Action on a receipt given by the defendant to the plaintiff, an attaching officer, for property attached by him on a writ in favor of Noyes v. Bean, in which suit judgment was rendered against the defendant therein at the December term of Caledonia county court, 1870, and execution issued. Plea, the general issue, and trial by the court, June term, 1872, Eoss, J. presiding.

Case to recover for au injury to the wife of the plaintiff, William Lindsey, occasioned by the insufficiency of a highway in the town of Danville. Plea, the general issue, and trial by jury, December term, 1871, Ross, J., presiding. Verdict for the plaintiffs, and exceptions by the defendant. And now at this term the defendant preferred a petition to this coúrt for a new trial, upon the ground of newly discovered evidence, and the exceptions and petition were heard together.

Trespass qua. clau. Plea, the general issue, and trial by jury, August term, 1872, Ross, J., presiding.

Trover for- certain mortgage notes. Trial by jury, December term, 1871, Ross, J. presiding, and verdict for the plaintiff. In 1844, the defendant conveyed certain real estate which he owned in Groton, to the father of the intestate, who, on the same day, conveyed the same to the intestate, all without consideration.

The bill was taken pro eonfesso as to the defendant Kelsey, but was answered by the defendant Gay, and the answer was traversed, and testimony taken. The oratrix’s mortgage, by its terms, was made subject to Hiram Kelsey’s mortgage and to the defendant Gay’s mortgage, and the minute of the town clerk upon said first named mortgage, and the town records, show;ed that the same was received for record half an hour later than the said Gay’s mortgage.

Assumpsit upon a-promissory note, signed “L. D. Hill & Co. by F. C. Harrington,” and also by Francis Richardson. Plea, the general issue, and trial by the court, June term, 1872, Ross, J., presiding. There never existed any such firm as L. D. Hill & Co. None of the defendants were ever in company with each other in any kind of business.

General assumpsit. Plea, the general issue, and trial by-jury, December term, 1871, Ross, J., presiding. Held: and that he left to Mr. Stoddard the sole care and responsibility of the trial of the case, and he employed the plaintiff to assist him, the town would be liable.” The court substantially complied with the plaintiff’s first request, but declined to charge as secondly requested.

Case for injury caused by the insufficiency of a highway. Plea, not guilty, and trial by jury, April term, 1871, Windham County, Barrett, J., presiding. The injury occurred on the evening of the 5th of November, 1869, near Saxtons River village. A public highway and important thoroughfare has for many years existed between said village and Grafton, which the defendant was bound to maintain.

Trover for a wagon. Plea, the general issue, with notice of special matter. Trial by jury, April term, 1871, Chittenden county, Pierpoint, C. J., presiding. It appeared from the testimony, and was not disputed, that in August, 1869, the plaintiffs sold and delivered the wagon in question to one McCarty, for $120, to be paid-in monthly installments of $10, and that the wagon was to remain the property of the plaintiffs until fully paid for.

Book account. The facts reported by the auditor sufficiently appear in the opinion of the court. The court, at the March term,' 1871, Rutland county, Wheeler, J., presiding, rendered judgment on the report for the plaintiff for the price of the wood sued for. Exceptions byjbe defendant.

Assumpsit to recover a town bounty. Plea, the general issue, and trial by jury, December term, 1870, Lamoille county, Red-field, J.… Held: he had a conversation with Merriam, then one of the selectmen of the defendant town, in which Merriam said that a town meeting had been called, and that the town would undoubtedly vote a bounty of $300 to fill the quota; that experienced men were more serviceable to the government than raw recruits; that they wanted recruits ; that…

Assumpsit upon a subscription to the capital stock of the plaintiff corporation, of which the following is a copy : “MONTPELIER AND WELLS RIVER RAILROAD COMPANY. “The state of Vermont having incorporated the Montpelier and Wells River Railroad Company, we the subscribers do severally agree with said corporation to take the number of shares of the capital stock of said company, of one hundred dollars each, placed against our names respectively, upon the following condition :…

Trial by jury, at the April term, 1871, Chittenden county, Pierpoint, Ch. J., presiding. Held: and the rights of said Jonathan determined, and that the award of that arbitration had been complied with, and that the witness then had no interest whatever in the estate as to whether the will was established or not.

Debt on a judgment recovered by the testator in his lifetime, at the September term, 1865, of Chittenden county court, against the defendant and one William Keach — upon whom process was not served in this case, and who did not appear — for the sum of twelve hundred and ninety-two dollars and twelve cents, damages and costs, upon which said judgment execution had issued and been returned unsatisfied, except as to the sum of seven dollars.

The questions in this case arose on exceptions to the master’s report, and the facts are fully stated in the opinion. The court of chancery, at the December term, 1865, in Windsor county, Barrett, Chancellor, pro forma, overruled the exceptions, accepted the report, and dismissed the bill. Appeal by the -orator.

Trustee process. The facts reported by the commissioner sufficiently appear in the opinion of the court; except that, the trustee got possession of the corn in question without fault of the claimant, before the' commencement of this suit, without paying therefor.

Assumpsit to recover a town bounty. Plea, the general issue, and trial by jury, March term, 1871, Washington county, Peck, J., presiding. The president of the United States, on the 17th October, 1868, issued a call for 300,000 volunteers, under which call the quota of the defendant was fourteen men.

General assumpsit. Plea, the general issue, and trial by the court, September term, 1872, Pierpoint, Oh. J., presiding. Held: is given in the opinion. The plaintiff also introduced a city ordinance, entitled, 44 An ordinance in relation to warnings for elections,” the validity of which was conceded, if the same was authorized by the city charter, and the tenor of which is also given in the opinion.

Ejectment to recover certain premises in Burlington. Plea, the general issue, with notice of special matter of defense. Trial by jury, April term, 1871, Pierpoint, Oh. J., presiding. Held: and enjoyed, by my eldest daughter, Avis,— and the other moiety, by my youngest daughter, Nelly, during their natural lives ; also, that part above bequeathed to the said Peggy, in like proportions, after the decease of the said Peggy.

The bill alleged that, prior to the 10th day of November, 1860, the orators had severally become the sureties of one Mills upon divers promissory notes then outstanding ; that one Alson H. Post was also liable at the same time, as sole surety for Mills, on a note for $800, then over due and in the Commercial Bank, in Burlington; that Mills, before and at the date aforesaid, was, and over sinde has been, wholly insolvent, and that the orators never had any security for their…

Assumpsit for money had and received, brought to the city court of Burlington. Plea, the general issue.

This was a grand juror’s complaint for killing a deer contrary to the act of Nov. 8,1865, for the protection of deer,† appealed to the county court.

Book account. The auditor reported that the plaintiff presented an account of $114.66 against the defendant, which was allowed, with interest; that the defendant presented an account af $16.10 against the plaintiff, which was allowed ; that the defendant also presented an account of $85.97 against one G. B. Dow, and claimed that the same should be allowed against the plaintiff.

Audita querela to set aside the judgment of a justice of the peace. The original process was substantially in the statutory form of a writ of audita querela, except that the prayer was, that the court reverse and set aside said judgment, •“ and proceed to hear, try, and determine said action according to the statute in such case made and provided,” and that it was signed, “ Thomas Burns by Geo.

Assumpsit to recover a town bounty. Plea, tbe general issue, and trial by the court, April term, 1872, Rotce, J., presiding. The resolution set out in the opinion was passed by the town, December 17,1863.

Trespass for assault and battery on tbe plaintiff, Mrs. Earl. Plea, the general issue, and trial by jury, September term, 1871, Royce, J., presiding.

<p>Trespass for assault and battery.* Plea, the general issue, and trial by jury, April term, 1872, Royce, J., presiding.</p> <p>The defendant offered in evidence, for the purpose of mitigating damages, and upon tbe question of exemplary damages, the record of a judgment against himself in a criminal prosecution for the assault set forth in the declaration, and offered to show that the prosecution was instituted at the plaintiff’s request, and upon his complaint. The court excluded said record and the testimony offered in connection therewith, and the defendant excepted.</p> <p>The plaintiff offered no testimony to show what expense he had incurred by way of counsel fees, or otherwise, in the prosecution of this suit, which was not taxable costs. .</p> <p>The defendant requested the court to charge the jury as follows :</p> <p>1. “ If the jury finds that the defendant assaulted the plaintiff, the plaintiff is entitled to recover only individual or personal damages, and is not entitled to recover damages assessed as a punishment for the damage done to the public.</p> <p>2. “ That damages are given to the plaintiff as a compensation, recompense, or satisfaction to .him for an injury actually received by him from the defendant. They should be precisely commensurate with the injury — nothing more — nothing less.</p> <p>3. “ That the evidence tends to show that the personal injuries complained of, constituted acts for which the plaintiff was liable in a criminal action, and that, under this state of facts, the plaintiff is not entitled to recover exemplary damages.” .</p> <p>The court declined to charge as requested, but charged upon the question of exemplary damages as follows :</p> <p>“ If you find that the assault was wanton in its character, and unprovoked, you are at liberty to give what the law denominates exemplary, or punitive damages, and whether you will give them or not, is a matter entirely within your discretion. Where the act is not wanton in its character, and where it appears to be innocent in intent, the jury are not, as a general rule, to give exemplary damages. The object of exemplary damages is twofold in- its character. One object is to remunerate the party for the expense he is put to in the assertion of his right, which is not taxable costs. Another object is for the sake of example to others— as a sort of punishment to the party, and to act as a sort of restraint upon others from committing similar acts.”</p> <p>To the refusal to charge as requested, and to the charge as- detailed,.the defendant excepted.</p> <p>• If the charge was correct, the exclusion of the record was error. The charge states one object of exemplary damages to be “ for the sake of example to others — as a sort of punishment to the party, and to act as a sort of restraint upon others from committing similar acts.” This was the object of the criminal prosecution, and the record is conclusive that the defendant has been sufficiently punished, and sufficiently made an example of. That the liability to criminal prosecution is a bar to exemplary damages, see Jacks v.'Bell, 3 C. & P. 316 ; Tabor v. Huston, 5 Ind. 322 ; Southwick v. Ward, 7 Jones (N. 0.), 64;. Austin v. Wilson, 4' Cush. 273 ; Taylor v. Carpenter, 2 Woodb. & M. 122 ; Thorleyv. Kerry, 4 Taunt. 335; -v. Johnson, 1 B. Mon. 80 ; Cherry v. McCall, 23 G-a. 193. The contrary is held in New York, California, Connecticut, Ohio, and Michigan.</p> <p>The charge in relation to expenses beyond taxable costs, was erroneous. There is no allegation in the declaration, which warrants such damages, and no evidence that any such expenses had been incurred'. Besides, expenses beyond taxable costs cannot be considered by the jury in assessing exemplary damages. Barnard v. Poor, 21 Pick. 278 ; Sinclair v. Elder, 4 Taunt. 7; Hathaway v. Barrow et ais. 1 Camp. 151; Jenkins v. Biddulph, 4 Bing. 160 ; 1 Chit. PL 372, 442; Bean v. Bean’s Estate, 43 Yt. 337, 345 ; Haverstick v. Erie Gas Go. 29 Penn. 254 ; Hicks v. Foster, 13 Barb. 663 ; Willet v. H. E. B. B. 12 S. C. 290 ; Fairbanks v. Witters, 18 Wis. 287; 7 Blackf. 277 ; Arcamble v. Weisman, 8 Dali. S. C. 306 ; Bay v. Woodworth, 13 Howard, 363 ; Lese y. Huntington et at. 23 lb. 2.</p> <p>It was also error to charge that exemplary damages are for the sake of example and punishment.</p> <p>It was error to charge, “ that when the act is not wanton in its character, and when it appears to be innocent in intent, the jury are not, as a general rule, to give exemplary damages.” The charge should have been positive, that in such cases the jury were not to give these damages. Sedgw. Dam. 454 ; 22 Yt. 238.</p> <p>Prom the nature of the pleadings, the plaintiff was not entitled to recover exemplary damages, and the defendant was entitled to the requests made. The declaration is for a simple assault, and contains no averment of malice, wantonness, or matter of aggravation. Sedgw. Dam. 38 ; Hilliard Eem. for Torts, 404, 440 ; 2 Greenl. Ev. 254; 1 Chit. Pl. 271, 440, 441 ; Merrills v. Manf’g Go. 10 Conn. 384; Nivin v. Stevens, 5 Harring. (Del.) 272; 21 Howard, 221; 4 Gray, 333 ; 14 Wend. 159 ; 1 Saund. 242.</p> <p>The doctrine of exemplary damages is fully recognized in this state. Bevine v. Band, 38 Vt. 621; Ellsworth v. Potter et als. 41 Yt. 685. Its effect is sought to be avoided in the case at bar by showing that the defendant has been convicted for the same assault in a criminal proceeding. This evidence was properly excluded. Goolc v. Ellis, 6 Hill, 466 ; Sedgw. Dam. 462, 530 (n).</p> <p>There was no error in the charge as to the twofold object of exemplary damages. Goddard v. G. T. B. B. Go. 10 Am. Law Eeg. 17, and note; Welch v. Burand, lb. 566, and note; St. Peter’s Ghurch y. Beech, 26 Conn. 355 ; Bay y. Woodworth et al. 13 Howard, 363 ; Hopkins v. At. $ 'St. L. R. R. 36 N. H. 9; Taylor v. Q-. T. R. R. Co. 48 N. H. 304; Bartlett v. Wood $■ Tr. 32 Vt. 372.</p>

<p> Evidence. Books of Entry. Province of the Court in Charging the Jury. </p> <p>When on cross-examination, the reliableness of a witness’s testimony is forced to depend mainly on what appears upon books of entry kept by the witness in relation to a certain business transacted by him, and out of which the matter in controversy arose, and as to his mode of doing which he had testified in chief without objection, it is legitimate for the other party to show fully the manner in which such business was transacted, and how such books were kept, as corroborative of the testimony of the witness 5 and such books are evidence for the same purpose.</p> <p>It is the province of the court to instruct the jury as to the true light in which, under the law, the materials of evidence are to be considered and used; and, when some question arises on the subject, the court may lawfully state to the jury their impressions and understanding of how a witness meant to be understood, and indicate how such-impressions and understanding were derived; especially when the court tell the jury that it is all a matter of fact for them to determine upon the testimony.</p>

<p> Agency. </p> <p>The plaintiff’s son conducted the business of a small store belonging to the plaintiff, under an agreement that he should have a suppoi t for himself and family out of it, as a compensation for his services. Both took goods from the store as they wanted for for family use, and no account was made of them. While the son was thus in the store, the defendant doctored his wife, and took poods out of the store in payment for his services, which were necessary, by agreement with the son, who had no means of support except what he derived from the store as aforesaid. When he left his father’s employ, he credited the defendant’s services on the store-boo>s; but the plaintiff erased the credit, and brought this suit to recover for the goods thus delivered to the dofendant. 5 and it was h^ld, that he could not recover.</p>

<p>[In Chancery.]</p> <p> Jurisdiction of Chancery to Remove a Cloud to the Title of Land; </p> <p>The orator alleged in his bill that R„ his ward, was the owner of a farm in P., and had a homestead therein,» and that he was adjudged a bankrupt, and the defendant appointed his assignee, and that said homestead was decreed to R. by the court of bankruptcy; that R. absconded, and the orator was appointed his guardian; that the defendant thereafterwards obtained judgment by default against R., before a justice oí the peace, without the service of process, notice, or recognizance for review, and levied his execution upon, and set off, said homestead; that it was the duty of the orator, as such guardian, to sell said homestead for the support of R.’s family, but that said levy and set off hindered and impeded his selling the same, and constituted a cloud upon the title thereof; and prayed that said cloud be removed. The answer averred that the court of bankruptcy adjudged that R. had a homestead interest in said farm; that the defendant’s claim upon which said judgment was founded, was anterior to the acquisition of said homestead, and that said homestead was not exempt from said levy and set-off. The ease was heard on bill and answer. Held, that the oase was not one. for the interposition of a court of equity.</p>

Indictment for manslaughter. Plea, the general issue, and trial by jury, April term, 1872, Royce, J., presiding.

The court, at the April term, 1872, Royce, J., presiding, affirmed the decree of the probate court. The only question on trial was* whether at the time of her marriage to the said Joseph, the said Margaret’s former husband, George Edwards, was living. She was married £o said Edwards in 1842,. at Highgate, Vermont, and lived with him till May, 1854, and had six children by him.

'Assumpsit for a town bounty. Plea, the general issue, and trial by jury, Pierpoint, Oh. J., presiding. The call of the president for 300,000 men, made Oct. 17, 1863, was admitted. It appeared that the quota of Bristol under said call was nineteen men.

Assumpsit for the price of a yoke of oxen sold by the plaintiff to the defendants, originally brought before a justice of the peace, and appealed to the county court and referred.

<p> Will. Construction. </p> <p>The testator, after giving a legacy to his wife, gave the residue and remainder of his estate to his son, upon condition that, if “I should not return alive from the journey I contemplate making this summer with my wife, there is to he paid out from that part of my estate that is here given to my son, * * * to II., the mortgage I hold against Ii. H. * * * But should I return, and during my life make over said mortgage to H., my son’s share is to he relieved from the payment of said legacy” to E. The testator returned from said journey, hut did not make over said mortgage to H. The whole of the testator’s estate was not sufficient to pay his wife’s legacy. Held, that said mortgage belonged to his wife.</p>

Book account, in favor of tho plaintiffs as partners. The auditor made the following report: “ The plaintiffs were liquor merchants in Syracuse, in the state of New York, doing business there during the years 1860,1861, and 1862. The defendant was, during that period, a customer of the plaintiffs, and engaged in selling liquor contrary to law, at Rut-land, Vermont.

Trover for a quantity of slate mantels. Plea, the general issue, and trial by the court, March term, 1871, Wheeler, J., presiding. On the first day of September, 1870, and for some time previous thereto, the plaintiff, with one Patrick. Burke, was engaged in the manufacture and sale of slate mantels, and other slate goods, at Fair Haven, in the county of Rutland, as equal partners, under the firm name of Burke & Kellogg.

Assumpsit. The case was referred, and the referee reported the following facts: In December, 1857, the selectmen of the plaintiff town laid out a highway leading from the dwelling-house of the defendant, mainly across the defendant’s land, to a main highway then in use.

Assumpsit, in special and general counts. The case was re.fered to referees, who reported as follows : ■ “ The plaintiff and defendant, about the first day of Maxell, 1855, entered into a contract of copartnership to carry on a business of manufacturing cloth and woolen goods, at Salisbury, Vt., where the defendant resided, and had hired a factory and machinery. The plaintiff resided at Brandon.

Trespass for a wagon. The case was referred, and fhe referee reported the following facts: The defendant purchased the wagon of one Ballou, who bid it off at sheriff’s sale on an execution in favor of Taylor v. Bolster, December 9, 1869. About the first of April, 1868, one Ainsworth contracted to sell said Bolster a farm, and some personal ; property thereon, among which was the wagon in question, for all which Bolster gave his note.

General assumpsit. The ad damnum in the plaintiff’s writ? and the sum demanded by the declaration, was ten dollars. The debit side of the plaintiff’s specification on trial, was for wood and butter, $38.82 ; and the defendant was therein credited, “ By his ac’t, $32.16 ” ; leaving a balance of $6.66 ; for which sum, with eighty cents interest thereon, the plaintiff obtained judgment, and the defendant appealed.

Bates, from the town of Winhall to the town of Landgrove. The case was referred, and heard before the referee.

Case for an alleged injury to the plaintiff, Lucy M. Church, occasioned by reason of tbe insufficiency of a highway in the defendant town. Plea, the general issue, and trial by jury, September term, 1872, Barrett, J., presiding. The plaintiffs offered in evidence the following written notice : “Westminster, January 7th, 1871. To Henry C. Lane, Esq., one of the selectmen of the town of Westminster.

This was au action of trespass for false imprisonment. The trespass complained of was, that the defendants arrested the plaintiff in Windham county, wherein there was a legal jail, and imprisoned him in a jail in Bennington county.

Book account. The plaintiffs were wholesale liquor-dealers in the city of New York, and the defendant was a tavern-keeper in Whitingham, in this state.

This was a petition by tbe defendant, Lockey, to vacate as to him, a judgment rendered in this suit against the defendants, at the April term, 1868, and to bring the case forward upon the docket for trial as to him,. The facts were these : ■ In January, 1867, the defendants entered into articles of co-partnership under the name of H. E. Thurston & Co. Lockey did not give his personal attention to the business, but resided in Massachusetts.

: Tho bill set forth that John Arms, the defendant, on the 17th day of August, 1858, conveyed to Roswell G. Shurtliff, by warranty deed, tho land in question, situate… Held: after a thorough examination of all the authorities, that this condition was personal to George Simpson, and did not attach to the land in the hands of his heirs and assigns. Emerson v. Simpson, 43 N. H. 475 ; 1 Washb. Real Prop. 447. 4. Nor can this clause be treated as a covenant running with the land.

<p>Account. The auditor reported substantially the following facts:</p> <p>On the first day of April, 1870, the plaintiff was the owner of a patent-right known as “ Swazey’s Butter-Working Churn,” with the right to manufacture and sell the same, together with the territory included in the states of New York, Pennsylvania, and Ohio. On that day, both parties then residing in Cabot, Vermont, the plaintiff employed the defendant to work for him in the business of selling said patent-right and patent churn in the states aforesaid. The contract was reduced to writing, and duly executed by the parties on the same day, and a written power of attorney was then executed by the plaintiff to the defendant. At the time these writings were executed, it was agreed and understood that either party, upon becoming dissatisfied with the other, or with the manner in which the business was being conducted, or if it should turn out to be unprofitable, had the right at any time to put an end to the contract. In pursuance of said contract and power of attorney, the defendant commenced his service on the 4th of said April, and on that day the parties shipped from Montpelier, Vt., to Ogdensburgh, N. Y., one hundred and twenty churns, and to Mooers Junction, N. Y., forty-eight churns, and the next day the plaintiff went to Ogdensburgh, and the defendant to Mooer’s Junction. From the time of their arrival in the state of New York, to the 26th of said April, the parties frequently met, and they exerted themselves to their utmost to sell both territory and churns, but with very poor success. During this time, they disposed of only three or four. churns and the territory of Essex, Clinton, Franklin, St. Lawrence, and Washington counties, in New York, but it did not appear at what price they sold the territory, or how much the plaintiff realized out of said sale ; but it did appear that their efforts to sell both churns and territory during this time, were far from being satisfactory to either, and that the plaintiff became discouraged with the result of their efforts, and so informed the defendant, and also informed him that he could not afford to keep him longer at the rate he was paying him. The defendant, although unsatisfied with the result of their efforts, did not want to give up the business, but desired the plaintiff to permit him to make another trial, and to that end, suggested that the plaintiff' permit him to go into Tioga county, N. Y., and Bradford and Susquehannah counties, Penn., and there sell churns and territory for the plaintiff. The parties at this time were at Antwerp, N. Y., at which place they had forty-two churns in store, and one other which they had with them, and used for a sample, or model, for exhibition. At this timo they made a settlement, and the plaintiff paid the defendant the sum of seventy-six dollars, which was in full payment of all matters and dealings between them up to that date, and was so understood by the parties. Within a day or two after this settlement, the plaintiff left Antwerp, and returned home, and pursuant to some arrangement previously made between them, the defendant left Antwerp about the same time for Tioga county, N. Y., and Bradford and Susquehannah counties, Penn., for the purpose of disposing of churns and territory — the churns then at Antwerp having been shipped by the plaintiff to the defendant at Owego, Tioga county, the defendant taking the sample churn along with him. At the time of said settlement, the plaintiff was released from all further liability to defendant on account of said written contract, and they mutually put an end to the same, and the trip to Tioga county, and into the state of Pennsylvania, was made by defendant under a verbal arrangement entered into by the parties at that time, at the solicitation of the defendant, which was to the effect that the defendant should proceed to the places above named, and sell territory to the best advantage, under his said power of attorney, each party to receive one half of all the proceeds of such sales, and bear one half of defendant’s expenses while so employed. The defendant was to receive the churns then at Antwerp, to be shipped to such points as he should direct, the plaintiff to pay the freight on the same, which the defendant was to sell for the plaintiff according to his best discretion, accounting to the plaintiff on settlement for what they sold for, but if, in selling territory, the defendant found it necessary to throw in a churn, he was at liberty to do so, and was to account to the plaintiff on settlement for one half of the value thereof at ten dollars, the retail price. The plaintiff then advanced to the defendant the sum of thirty dollars towards paying his half of the defendant’s prospective expenses, for which the plaintiff was to have credit on a future settlement. The plaintiff delivered to defendant the forty-three churns then at Antwerp, and the same were subsequently shipped to Owego to the defendant’s order. The plaintiff thereupon left for Yermont, and the defendant left for Tioga and the adjoining counties in Pennsylvania, and remained in that vicinity until some time in the fore part of July, 1870, when he returned to Cabot, and in a few days informed the plaintiff that he had made no sales of territory, and had sold but two churns, for which he received ten dollars each, and had put the remainder into some man’s hands to sell, with a power of attorney to sell territory, that the man’s name was S. W. Breed, or W. S. Breed, but he refused to inform, the plaintiff where said Breed resided. A portion of the churns, he subsequently informed the plaintiff, were stored at Owego, but he refused to inform the plaintiff the name of the man in whose charge he left them, giving as a reason for thus refusing, and for not telling where the man Breed resided, that he was afraid the plaintiff would take possession of the churns, and revoke Breed’s power of attorney, which, he said, he could not permit, as he had money and time invested as capital in the business, and he should hold on to the property until he could realize enough out of sales to get his pay. Some little time after this interview, the plaintiff called on the defendant, and requested a statement of his account of expenses and property sold, &c., during the time he was in Tioga county a,nd Pennsylvania; which the defendant produced, and it was ascertained that the plaintiff was owing the defendant a balance of 137.49 on account of defendant’s expenses, after deducting freights which plaintiff was to pay, and the two churns at ten dollars each, which defendant had soid, and the thirty dollars which plaintiff advanced defendant as aforesaid. The plaintiff did not approve of the acts of the defendant, and expressed himself dissatisfied with the course the defendant had taken in placing this territory and the churns in the hands of Breed to sell. The plaintiff made frequent inquiries of defendant as to how Breed was getting along, and whether he had.succeeded in disposing of any churns or territory. The answer of the defendant always was, that he had done nothing yet, that it was a bad time to sell. Thus matters ran along until some time in the fall of that year, when the plaintiff again demanded that defendant should inform him where Breed resided, and where his churns were, so that he could send and get possession of them, and revoke the power of attorney held by Breed. The plaintiff was always ready and willing to pay the defendant the balance ascertained to be due him, when the defendant would give him information so he could regain possession of his churns and territory, and so informed the defendant. This proposition the defendant always refused to accede to, unless the plaintiff would pay him all his expenses, and at the rate of one hundred dollars per month for his time. The defendant never gave the plaintiff this information, but always refused so to do, and the plaintiff could never ascertain the whereabouts of Breed, or who had the churns in charge; and frequently demanded of defendant the churns, or an order for them, but the defendant always refused both. Some time before this suit was commenced, the plaintiff delivered to the defendant a paper-writing, revoking the defendant’s power of attorney. The defendant, while in Tioga county and in Pennsylvania, in addition to the two churns which he sold and received the money for, delivered five chums to one Sleeper, his brother-in-law, with authority to sell the same, and he sold-some, and received some money for the same, but how much, and ho w many he sold, did not appear. The defendant exhibited and delivered one churn to a Mr. Crane, president of an agricultural society, at said Crane’s request, but never received any thing therefor. He employed a man by the name of Stephens to assist him in exhibiting and selling said chums, and delivered him one in payment for his services. He also delivered one to a man named Smith, to pay for storage of churns at Owego.</p> <p>He also delivered seven to said Breed, with instructions to sell the same for him, but whether he ever sold or disposed of any of them, there was no evidence to show. The remaining twenty-six churns were left by the defendant, subject to his order, with one J. M. Smith, at Oweso. N. Y.</p> <p>The auditor, in stating the account between the parties, charged the defendant with the twenty dollars received for the two churns sold, and ten dollars each for the five churns left with Sleeper as aforesaid, and five dollars for one half the value of the churn delivered io Stevens for services, and the same amount for one half the value of the churn delivered to Smith for storage, and ten dollars for the churn delivered to said Crane as aforesaid, and also with the thirty dollars paid to the defendant for expenses as aforesaid ; but did not charge him with the seven churns left with said Breed, or the twenty-six left with the said Smith at Owego, or with any part thereof, but referred his liability therefor to the court as matter of law. The defendant made some objections before the auditor to the admission of testimony, which were overruled ; but, under the ruling of the court, it becomes unnecessary to state the particular point of the objections.</p> <p>The court, at the September term, 1872, Barrett, J., presiding, rendered judgment, pro forma, on the report for the defendant. Exceptions by the plaintiff. •</p> <p>1. There can be no question but the judgment of the county court should be reversed. The only possible doubt is, which of the sums found by the auditor the plaintiff is entitled to recover. Upon the facts found, the plaintiff should recover for the seven churns left with Breed, and the twenty-six left with Smith at Owego. The defendant’s relation to the plaintiff was that of agent; he had authority to sell the churns, and, under the contract, it was his duty to account to the plaintiff for the proceeds of such as ho sold, and to return to the plaintiff those unsold. He had no authority to create sub-agents. He refused to give the plaintiff any information as to where the churns were, or to return them to him, or give him an order therefor. He claimed the right to keep them until paid an unfounded claim for his services. He so conducted with the property that he is liable to account for its value.</p> <p>2. Account is an action to compel a defendant to account for the property or money of which he has had the charge and administration for the benefit of the plaintiff. It is founded either upon privity of estate, or privity of contract. Hence, the action will not lie to recover damages1 for a tort. 1 Swift Dig. 579, 581; Brinsmaid, Adm’r, v. Mayo, 9 Vt. 31. But if a person obtains possession of the goods of another through privity of contract,, to sell and account for the proceeds thereof, if he convert them to his own use, he is liable for their value in an action of account. Smith v. Woods, 3 Vt. 4-85 ; Allen v. Thrall, 10 Vt. 255 ; Kellogg v. Griswold, 12 Vt. 291; Scott v. Lance, 21 Vt. 507 ; LaPoint v. Scott, 36 Vt. 603. There is a class of cases .in this state, the principal of which fully sustain the plaintiff’s right to a judgment. Scott v. Lance, 21 Vt. 508, note; Flower Brook Mauf’g Co. v. Buck, 18 Vt. 238 ; Hickok et al. v. Stevens, lb. Ill; Stone v. Pulsipher et al. 16 Vt. 428 ; Catlin v. Smith, 24 Vt. 85 ; Waterman v. Stimpson, lb. 508 ; Woodward v. Harlow, 28 Vt. 338 ; Safford v. Kingsley, 40 Vt. 506 ; Thompson v. Babcock, Brayt. 24. At common law a bailiff is chargeable as well for what he might have received with reasonable care and diligence, as for what he has received. Adm’r of alley’s Estate v. Tenney, 31 Vt. 401 ; Hayden v. Merrill, 44 Vt. 336.</p> <p>1. The plaintiff claims to recover the largest sum stated in the report. This we insist he is not entitled to recover. As to his receipts for churns sold, and as to expenses, we concede that the defendant is bound to account to the plaintiff; but we insist that he is not bound to account for the thirty-three churns unsold. 2 B. & P. 438. The right of action of account against bailiffs and receivers, does not exist by our statute, but at common law only. At common law the action lies only in three cases, to wit, against guardians, bailiffs, and receivers; and it lies only to compel an account of profits or moneys received by the defendant. Co. .Lit. 172 ; 2 Greenl. Ev. §§35, 36; Anthon’s Prec. 8, n. (d) ,* 1 Swift Dig. 579. If the defendant is liable for the unsold churns in any form of action, which we deny, it is upon the ground of their conversion to his use. Account will not lie in case of a tort. 1 Swift Dig. 581.; Winchell v. Noyes, 23 Vt. 303.</p> <p>2. The defendant should 'not be charged with the churn left with Mr. Crane, nor with those left with Sleeper, because it does not appear that they had been sold.</p>

This was a petition under § 65, ch. 24, of the Gen. Stat. The allegations of the petition are fully stated in the opinion. The defendants moved to dismiss the petition, for reasons apparent upon the face thereof, and because the county court had no jurisdiction to appoint commissioners according to the prayer of the petition. The court, at the September term, 1871, Eoss, J., presiding, dismissed the petition; to which the petitioner excepted.

Covenant for rent. Pleas, non est factum, accord and satisfaction, and offset. That part of the declaration which was furnished to the reporter, recited, “that whereas, on &c., at cited Co. Lit. 229 a, 231 a ; Lit. §§370, 374, 666, 667; Shep. Touch. 177; Cro. Jac. 240, 399, 612; Brett v. Cumberland, 1 Roll. Rep. 359; 2 lb. 63, 159; 8 Bulst. 163, 164 ; 38 Edw. 3,8a; 45 lb. 11, 12; Finch’s Law, 109 ; Vin. Abr. Covenant, B. pi. 1, 1 a, 2 ; Cruise Dig. 447, §§3, 4; Bac. Abr.

Petition for a writ of certiorari. This petition alleged, among other things, that at the June term, 1868, of Bennington county court, D. L. Kent and others, preferred their petition against the town of Peru, in said county, praying for the laying out of a public highway in said town ; that the court at said term appointed commissioners to examine and report in the premises, and continued the case to the December term, 1868 ; that at the June term, 1871, said court ordered…

Case for injury to the plaintiff’s borsc. Plea, the general issue, and trial by jury, September term, 1872,-Barrett, J., presiding. In December, 1868, tho plaintiff loaned his horse to tho defendant to go from the defendant’s residence, in Rockingham, to Cavendish, a distance of sixteen miles, after a load of ashes. . Tho defendant put said horse beside another, and went with a wagon, there being but little if any snow.

This was an action of general assumpsit, commenced on the 2d day of August, 1871. Held: that if a contract under seal is not performed within tho time limited by tho contract, but that time is extended by a parol agreement, a recovery may be had in assumpsit for performance within tho extended time.

General assumpsit. Trial by the court, September term, 1872, Barrett, J., presiding. In the years 1869 and 1870, the plaintiff was highway surveyor in district No. 32 in the defendant town.

The bill alleged that on the 30th of September, 1862, a court of examination was held by William H. Jones and Laban Jones, justices of the peace, at Dover, in said county, upon a complaint of Elliott Harris, overseer of the poor of said town of Dover, against one Joseph Converse, charging that said Converse had come to reside in said Dover, and had not gained a legal settlement therein, and that he was likely to become chargeable to said Dover as a pauper ; that said…

The complaint was dated January 25th, 1872, and alleged that “Alonzo B. Cook, late of Grafton, a stranger, has come to reside in said town of Windham, and has not gained a legal settlement therein ; and, also, one Louisa Walker and children, strangers, late of Chester, in the county of Windsor, have come to reside in said town of Windham, and have not gained a legal settlement therein ; and that the said Cook, Walker and her children, are likely to become chargeable,” &c.…

Sawyer, disallowing the plaintiff’s claim against said estate. The plaintiff filed a declaration in'the probate court in two counts.

Trespass for a barber’s chair and foot-rest. Plea, the general issue, with notice of justification. Trial by the court, December term, 1872, Barrett, J., presiding. It was conceded that the plaintiff was entitled to recover, unless the articles sued for were subject to attachment and execution. It was aláo conceded that the justification was made out, unless the articles were exempt from attachment and execution under the statute.

Case for damage sustained by 'reason of the insufficiency of a highway. Pica, the general issue, and trial by jury, December. term, 1871, Barrett, J., presiding.

Assumpsit. Plea, the general issue, and trial by the court, May term, 1871, Barrett, J., presiding. The plaintiff claimed to recover for an alleged breach of contract to deliver saw-logs, and the court ruled that the plaintiff could not recover therefor; but no question was made in this court as to the correctness of that ruling.

Assumpsit upon a promissory note for fifty dollars, executed by the defendant, and payable to H. A. Bryant, or bearer., The defendant pleaded, first, the general issue ; secondly, actio non, “ Because he says that the note named in said first count, was given by this defendant to Hiram A. Bryant,.named in said count as H. A. Bryant, for a cow bought by the defendant of' said Hiram, which cow, at the time of said purchase and giving said note therefor, was sick, and of no…

Petition for a decree of nullity of a marriage between the' said Almira and one George W. Pierce, deceased, celebrated before Rufus A. Earl, a justice of the peace, on the 30th of August, 1866.

General assumpsit. Plea, the general issue, and trial by the court, December term, 1872, Barrett, J., presiding. The defendant contracted1 to finish off a church in Chester, in the season of 1870, for $4,500.

Ejectment for a messuage and premises in the village of Ludlow. The defendant disclaimed as to all the premises in the declaration mentioned, except as to an estate of homestead therein, set out to him on the 12th of August, 1868, on the levy of an execution against him and one Guernsey in favor of Poor & Co., upon a portion of the premises disclaimed, as to which, he pleaded not guilty. Trial by the court, December term, 1872, Barrett, J., presiding.

Petition for mandamus. The petitioners preferred their petition to the May term, 1872, of the county court, setting forth that Martin R. Lawrence and others, in October, 1871, made application -to the selectmen of the town of Chester to lay out and survey a public highway in said town, to connect at the line of said town with a proposed highway to be laid out by the town of Spring-field, which last named highway was to connect with a highway to be laid out by the town of…

<p>Trover for a pair of oxen. Plea, the general issue, and trial by jury, December term, 1872, Barrett, J.. presiding.</p> <p>The plaintiff testified, in substance, that in tbe year 1867, he sold a pair of young oxen, or steers, to one Ethan A. Hall, towards which he had received, in deal between them, some portion of the pay, but there was still an unpaid balance when, in the fall of 1868, said Hall applied to him for another pair of oxen, saying that he could not pay down for them, but wanted a credit, but that the oxen should remain .the property of the plaintiff until they were paid for ; that the plaintiff informed him he had not at that time such oxen, but was soon going to Plymouth, and thought he could get him a pair, and if he could, he would, and if they could agree about the price, ho would let said Hall have them on the condition named; that in a few days the plaintiff went to Plymouth, and purchased a pair of oxen and drove them to said Hall’s place, when the same were examined by said Hall, and the price agreed upon at $225 ; that there was at this time something said about Hall’s giving a note for them, but the plaintiff said it was towards night, and he was tired and hungry and wished to go directly home, some two miles distant, at North Chester, and he would make a note such as he was accustomed to take in such cases, containing the agreement for the lien, and when Hall came that w-ay, he might sign it; that no note or other writing was ever given ; that in the spring of 1869, Hall sold and delivered said oxen to the defendant; that the next June the defendant asked the plaintiff if he had a lien on the oxen, saying he had heard he had, and the plaintiff informed him he had — that they were his until paid for — that if Hall paid him for the same, well and good, otherwise, he should look to the defendant for the oxen, or the pay therefor ; _ that the next July, the defendant inquired of the plaintiff if Hall had paid him for the oxen, and the plaintiff informed him that he had not, and a conversation similar to the foregoing was repeated between them. There was no proof as to the trade between Hall and the defendant, or that the defendant had paid Hall any thing towards the oxen. The defendant sold the oxen in March, 1870, and they were driven to market. The plaintiff also- testified to the value of the oxen. Tbe defendant was not in court, nor did he testify in the case.</p> <p>Hall testified that he never made any contract with the plaintiff that the oxen should be his until paid for ; but made an absolute and unconditional purcliase -of the oxen, and was to pay for them just when he pleased, even at the end of twenty years ; that the only contract pertaining to the oxen, was when the plaintiff delivered them to Hall. The defendant introduced three witnesses who testified that they were present at the delivery, and there was nothing said about the plaintiff’s having any lien upon the oxen for his pay.</p> <p>Hall failed in February, 1870, and proved to be unable to pay his debts. Many suits were commenced, and attachments made of his property, which was known to the plaintiff. The plaintiff’s counsel inquired of the plaintiff why he did not bring a suit and attach property with other creditors, which question was objected to by the defendant’s counsel, but was admitted by the court; to which the defendant excepted. The plaintiff replied that Hall was owing him only for the balance due him for the first pair of oxen, or steers, except what was secured by his lien on the oxen in the hands of the defendant, and he and Hall had never settled, and he preferred to run his chance in getting his pay, to bringing a suit for it. Hall appeared on the trial, acting in the manner of the real defendant, and it was claimed by the plaintiff that he. was the real defendant, which was not denied by the other side.</p> <p>The defendant introduced a composition deed, with the signature of the plaintiff, one of the creditors, with others, thereon, which deed was never acted upon, on account of some misunderstanding among the parties with reference to it, and claimed that it had a tendency to show that the plaintiff had no lien on these oxen, or he would not have signed it. Said Hall testified that, aside from the oxen in question, there was a balance of aoout $20 due him from the plaintiff on their other matters of trade and deal. The plaintiff, in rebutting, then offered to show by one Spaulding, the trustee under the deed, who was instrumental in getting signatures of creditors thereto, that when the plaintiff signed the instrument, he said he had a lien on a pair of oxen for $225, and that Hall owed him only the balance that was due him —that he looked to Bates for the oxen — that his claim against Hall did not include the oxen. This the defendant objected to, but the court overruled the objection, and admitted the testimony; to which the defendant excepted. The only question of fact made to the jury, was whether the plaintiff did retain a lien on the oxen as he swore he did. There were no exceptions to the charge of' the court.</p> <p>The court below erred in admitting the testimony of Spaulding to declarations of Pollard. There is no rule of law that'will admit such testimony. • Worden v. Powers, 37 ■ Vt. 619; 1 Greenl. Ev. §108, and note. It was the sayings of the party to contradict and vary the terms of the composition deed, an instrument in writing, under seal.</p> <p>It was not admissible as a part of the res gestee. It in no way has relation to any act or declaration of Pollard at the time of the contract of sale of the oxen to Hall ; neither was it in the presence of the defendant, or of Hall, or of the witness. It is inadmissible, because it is the sayings of the party out of court, and cannot be given in his own favor, and is not contemporaneous with the main fact or transaction in issue. It is a well established rule of law, that sayings of a witness out of court, are not admissible to corroborate his testimony, but are admissible to impeach him. If a declaration has its force by itself, as an abstract statement depending for its effect on the person making it, it is not admissible — it is only hearsay. Worden v. Powers, 37 Vt. 619 ; State v. Davidson, 30 Vt. 377 ; 1 G-reenl. Ev. §108, and notes on pp. 148, 149, 150, 151 ; Munson v. Hastings, 12 Vt. 346; -2 Phill. Ev. 767 ; Ellis v. Howard et als. 17 Vt. 330; Ogden v. Peters et al. 15 Barb. 560 ; Ellieott v. Pearl, 10 Peters, 412; Conrad v. Q-riffey, 11 Howard, 480; Queen v. Hepburn, 2 Peters C. Rep. 496 ; Robe et al. v. Hockley, 12 Wend. 49 ; Elkins v. Hamilton, 20 Vt. 627 ; Upham $ Clay v. Wheeloek, 36 Vt. 27 ; Haines $ Kellogg v. Soule, 14 Vt. 99 ; Carpenter v. Hollister et al. 13 Vt. 552.</p> <p>It was error to admit the testimony of the plaintiff as to his reasons for not commencing suit against Hall. It is a narration of the witness’s own private thoughts, never expressed in the hearing of any one. Yet such testimony was given to the jury, to obtain a verdict. If a party’s own declarations are excluded, much more should a party’s thoughts and unexpressed reasons be excluded.</p> <p>There was no objection to the composition deed, and it was the duty of the court to give the jury its legal construction. Parol evidence was not admissible to explain, add to, or vary, its meaning. There is no ambiguity in it. If it was not admissible, on objection it should have been rejected ; but, when admitted, the defendant had a right to a legal construction of it by the court, and its effect as evidence before the jury. It was not subject to the testimony given by Spaulding, or Pollard, to show its terms, nor to what Pollard’s reasons were for signing, nor what amount he intended should be included of his and Hall’s dealings.</p> <p>To sustain the testimony of Hall, a composition deed was introduced by him, upon which the plaintiff’s name appeared. “ The. defendant claimed that this had a tendency to show that the plaintiff had no lien on those oxen, or he would not have signed the deed.” If such was the character of that paper, was it not proper for the plaintiff to rebut that presumption ? If so, could there be any thing more legitimate, direct, and proper, than the declarations of the plaintiff at the time he signed the paper ? Can there be any objection to proving those declarations by a disinterested third person, and especially by one who was to carry into effect the paper as a trustee, and who would be likely to notice carefully and remember correctly what the plaintiff said at the time ?</p> <p>Objection was made to the question propounded to the plaintiff, why he did not bring suit and secure his debt with other creditors, by attachment.' The attachments of many creditors, and that known to the plaintiff, and his neglect to sue, might be used as an argument in favor of Hall’s testimony, that the purchase was an absolute one, to be paid for “ just when he pleased, even at the end of tiventy years.” Can there be a doubt that such presumption may be rebutted by proper testimony ? If so, then clearly, the plaintiff was a competent witness for that purpose. No matter how, or by what means, the above facts got into the case ; testimony showing the conduct of the plaintiff, and the object and motive of such conduct with reference thereto, is proper. If the facts could not operate to the prejudice of the defendant, neither could the explanation, nor could both together.</p>

<p>Appeal from the court of chancery:</p> <p>The bill alleged that in- the year 1838, one Jay Wilson owned a farm in Bethel, known as the Burke farm, on which there was then a brick dwelling-house and other building; that during that year, he built a new dwelling-bouse, and other buildings ■ appurtenant, on the northern extremity of said farm, and caused an aqueduct to be constructed from a certain spring situate on said farm to said last named dwelling house, for the purpose of supplying the same with water; that thence, for the space of about thirty years, water flowed from said spring, through said aqueduct, to said last named dwelling-house, without molestation or hindrance; that the said Wilson, on the 30th of March, 1849, being the owner and occupant of said farm, mortgaged the same to one Chester Baxter, to secure the payment of the said Wilson’s promissory notes to the .said Baxter for the sum of $3,400 ; that said notes were not paid according to the tenor thereof, whereupon the said Baxter brought his petition to foreclose said mortgage, and obtained a decree of foreclosure against the said Wilson ; that before the expiration of the time of redemption therein fixed, the said Wilson agreed with the said Baxter for an extension of said time; that after the expiration of said time, the said Wilson, from time to time, paid different sums of money to the said Baxter, who received and applied the same upon said mortgage ; that afterwards, to wit, on the 28th of October, 1851, while the said Wilson was the equitable owner of said farm as aforesaid, and was in possession thereof, and the said Baxter was the legal owner thereof as aforesaid, the said Baxter, in pursuance of an agreement to that effect with tho said Wilson, released and conveyed to the said Wilson said new dwelling-house, and about one acre of land thereto adjoining, and the said Wilson, in consideration thereof, thereupon paid to the said Baxter a certain sum of money, which the said Baxter applied upon said mortgage ; that afterwards, to wit, on the 29th of November, 1852, the said Wilson mortgaged said new dwelling-house and the land thereto belonging, to one David Owen, to secure the payment of the said Wilson’s promissory note to the said Owen for the sum of $250 ; that on the 11th of February, 1853, while the said Wilson was the legal owner of said new dwelling-house, subject to said mortgage thereon, and the equitable owner of the residue of said farm, and said Baxter the legal owner thereof, the orator purchased said last named dwelling-house, and the laud thereto belonging, of said Wilson, and took a deed thereof, subject to the said mrrtgage thereon, and paid therefor about the sum of $400, and then went into the possession thereof, and has ever since remained in possession; that thoreafterwards, to wit, on the 17th of December, 1853, the said Wilson paid the balance of said mortgage to the said Baxter, and the said Baxter discharged the same.</p> <p>The bill further alleged that at the time the said Baxter conveyed said new dwelling-house and land to the said Wilson as aforesaid, water was running thereto from said spring, through said aqueduct, and continued to so run, and was so running at the time the orator purchased as aforesaid; that at that time, it was mutually agreed and understood between the orator and the said Wilson, that the orator had purchased the right to draw water from said spring, through said aqueduct, to the house so purchased by him, but that the orator and the said Wilson omitted to specify said right in the orator’s deed, because they supposed the same would be thereby conveyed without specifically naming the same therein ; that the said Wilson continued to own and occupy the residue of said farm for several years after the conveyance to the orator as aforesaid, during all which time, water continued to flow through said aqueduct as aforesaid, and the said Wilson never made any claim thereto ; that afterwards, the title and interest of the said Wilson in said farm, came to, and rested in the said Owen by virtue of a decree of foreclosure founded upon a mortgage of the residue of said farm, executed by the said Wilson to the said Owen, December 17, 1853 ; that the said Owen afterwards, to wit, on the 13th of March, 1861, conveyed said farm to one Cummings, who thereafterwards, to wit, on the 27th of February, 1867, conveyed the same to the defendant, who hath ever since owned and occupied the same; that said aqueduct, at the time of the respective purchases by the said Owen, Cummings, and the defendant, as aforesaid, was visible and apparent, and that each of said purchasers was aware- of the existence thereof at the time of their respective purchases ; that in January, 1868, and while water was running through said aqueduct as aforesaid, the defendant claimed and insisted to the orator that the orator had no right to said aqueduct, or to said spring of water, but that he himself was the owner of said spring, and had a right to stop the water from flowing in said aqueduct, and threatened so to do, unless the orator paid him rent therefor, and that the defendant procured a lease of said spring to be drawn from himself to the orator, for the orator to accept, but that the orator declined to accept the same, insisting that he was drawing water as aforesaid in his own right; that the orator was, on the 18th day of said January, informed by the agents and servants of the defendant that, unless the orator accepted said lease, they should destroy said aqueduct, and fill up said spring.</p> <p>The bill averred that there was no water that -the orator could obtain for the use of his family and cattle, without going off his land, and conveying the same to his house at great expense ; that the destruction of said aqueduct, or the filling up of said spring, would cause ' the orator great and irreparable damage, for which he had no aqequate remedy at law ; that the right to draw water from said spring as aforesaid, was worth more than one hundred dollars ; and that the orator had reason to believe, and did believe, that the defendant would destroy said aqueduct, and fill up said spring. The bill prayed for an injunction, and for general relief.</p> <p>The defendant, by leave of court, demurred to the bill for want of equity, and. because, if the orator was entitled to relief, the said Jay Wilson was not made a party. The defendant also pleaded the decree of foreclosure obtained .by the said Owen as stated in the bill, in bar of this suit, and averred that the orator was a party defendant thereto, duly served with process. The mortgage upon which said decree was founded, was in the usual form. The foreclosure was by petition under the statute, and the petition alleged that the orator claimed some interest in the premises. The petition was taken as confessed, and the decree was in the form prescribed by statute.</p> <p>The court, at the May term, 1872, Barrett, Chancellor, upon hearing on bill, plea, and demurrer, overruled th§ plea and demurrer, and rendered a decree for the orator according to the prayer of the bill- Appeal by the defendant.</p> <p>A conveyance of a house and lot, supplied with water by an aqueduct running through the land granted, from a spring belonging to, and situate on other land of the grantor, conveys the water as then running, with a-right to the spring and aqueduct sufficient for the continuance thereof. Vt. Central Railroad Co. V. Estate of Hills, 23 Yt.' 681; Harwood v. Benton et al. 32 Yt. 724 ; Coolidge v. Hager, 43 Vt. 9 ; Pyer v. Carter, 40 Eng. L. & Eq. 412 ; 4 Kent Com. 467 ; Nicholas v. Chamberlain, Cro. Jac. 121; 2 Washb. Real Prop. 32, 36, 38. The form of the deed from Wilson to the orator does not appear ; but even a quitclaim deed carries with it all the right and title which the grantor has. Smith, Adm’r, v. Pollard, 19 Yt. 272 ; Collamer v. Langdon et al. 29 Yt. 32. It stands admitted that Jay Wilson. intended to convey said spring and aqueduct, and that the aqueduct was visible and apparent, and that the defendant, and his grantors, Cummings and Owen, bought with full knowledge thereof.</p> <p>The demurrer and plea were properly overruled. Jay Wilson is not a necessary party. Dana v. Nelson et al. 1 Aik. 252 ; 1 Dan. Ch. Pr. 183, 192, notes. But this objection must be apparent on the face of the bill, or a demurrer will not lie. Ib. 289, 565, 611, 612, 613 ; 2 Swift Dig. 240. It does not appear from the bill that Jay Wilson has any interest in the matter ; nor whether the mortgage given by him to Owen, contained any covenant; nor does it appear but that there was an exception of the spring and aqueduct therein. A demurrer does not extend to inferences of law. 1 Dan. Ch. Pr. 566-7.</p> <p>But Wilson would not be a necessary party if his mortgage contained the usual covenants. Howard v. Benton et al. sufra. Owen acquired no right to the spring and aqueduct by his mortgage on the farm.</p> <p>The orator being compelled to resort to chancery for one purpose, the court will retain the case until finally dispesed of. Dana v. Nelson et al. supra ; Beardsly v. Knight et al. 10 Yt. 185 ; Sanborn v. Kittredge et al. 20 Yt. 632 ; Lyon v. McLaughlin, 32 Vt. 423 ; Holmes v. Holmes, Ad’mr, 36 Yfc. 525 ; Twitch-ell v. Bridge, 42 Yt. 68 ; 2 Johns. Ch. 162 ; 2 Swift Dig. 156-7 ; 1 Dan. Ch. Pr. 581, note ; 3 lb. 1741.</p> <p>The plea of a former decree must set up enough ?of such decree, and of the bill and answer, to show that the same point was in issue in the former suit. 2 Swift Dig. 260 ; 1 Dan. Oh. Pr. 684. But the decree pleaded was only a decree of foreclosure, and barred only the equity of redemption, and the point now in controversy was not raised in that case.</p> <p>The defendant, by his demurrer and by his plea, prayed judgment whether he should be compelled to answer further; the court, therefore, erred in passing a final decree. Mitf. Eq. Pl. [16] ; Adams Eq. [336],' [342] ; Story Eq. Pl. 784, § 866.</p> <p>The case of the orator as stated in his bill, does not entitle him to the relief prayed. The bill does not disclose the ground of the orator’s claim. The allegations thereof are not sufficient to found a claim upon that a right to take water from the spring was conveyed to the orator, even as an appurtenance.</p> <p>If it should be claimed that a right to the water passed to the orator as necessary to the enjoyment of the premises granted, we answer ; 1st, that the bill does not put the case. upon that ground ; and 2d, that it is not in fact a necessity. It is not like the case of a way of necessity. Wheat. Selwyn, 1366, pl. 5, and note B. It must be from strict necessity. Ib. note 2.</p> <p>A. deed of a house and land, omitting to name the appurtenances, will not carry a right to take water from, a spring on other lands of the grantor. In the cases in which it has been held that by a deed of a house and land the right to such spring would pass, the appurtenances were named in the deed. Nichols v. Chamberlain, Cro. Jac. 121; Qoolidge v. Hager, 43 Yt. 9. The word appurtenances in a deed has force. Smith et al. v. Martin, 3 Saund. 400, and n. (2) ; Buck et al. v. Newton, 1 B. & P. 53 ; Doe d. Clements, v. Collins, 2 T. R. 498 ; Swazey v. Brooks, 34 Yt. 451.</p> <p>If the orator had alleged that a right to the spring, or to the water thereof, passed by the conveyance of the house and land as an appurtenant thereto, it would not entitle him to relief, it not being alleged that the appurtenances were named in the deed. A way of necessity lies in grant. 2 Bl. Oom. 35, n. (28) ; 1 Saund. 323, n. 6.</p> <p>The allegations of the bill are too vague, indefinite, and uncertain, to warrant any decree thereon. Story Eq. PI. §§242, 244, 255 ; Mitf. Eq. PI. 41, 107.</p> <p>If the allegations of the bill are sufficient to entitle the orator to have the .deed reformed under the general prayer, Jay Wilson should be made a party defendant.</p> <p>The plea is sufficient, and is a bar to this suit.</p>

This was a complaint under the act for the relief of the families of insane persons, approved November 10, 1870, alleging that the plaintiff was the wife of William L. Stiles, whose legal settlement… Held: and ordered the defendant to maintain and support the said William at said asylum from and after the service of said complaint, and pay the costs of this proceeding ; to which the defendant excepted.

Replevin for goods attached by the defendant on mesne process. The writ was returnable at the May term, 1870, and the replevin bond was returned at the same term.

<p>Petition to foreclose a mortgage. The petitioner’s mortgage was executed by Cyrus Safford, on the first day of January, 1857, and was subject to three prior mortgages on the same premises, executed by the said Safford, as follows : one to the South Royal-ton Bank; one to Edwin S. Wood; and one to Nancy Safford. The said Cyrus Safford deceased, and his administrator sold and convey-ed said mortgage premises to Benjamin Flint and Lorenzo Mosier, on the 7th of October, 1858, in consideration that they should pay said bank mortgage and said Wood mortgage, and $800 on the Nancy Safford mortgage. Said bank mortgage was assigned to the state treasurer, who obtained a decree of foreclosure thereon at the May term, 1859, of Windsor county court of chancery, which said decree was, on the 20th of June, 1860, assigned to the defendant Elisha Flint, to whom the said Benjamin had conveyed his interest in said premises; and the said Elisha and the said Mosier, or his administrator, paid the full amount of said consideration, according to the agreement with the administrator of the said Safford. The petitioner was not a party to said decree. Soon after the purchase of said premises as aforesaid, the said Benjamin and the said Mosier went into the several possession thereof,-and they, and those claiming under them, of whom are the defendants, have ever since been in possession, claiming to own the same, and taking the rents and profits to themselves.</p> <p>This cause was remanded from the supreme court at the February term, 1872, with a mandate that the petitioner was entitled to a decree of foreclosure against the defendants, upon payment by him of the sum due upon said prior mortgages which had been paid off by the defendants, and not otherwise; and at the May term, 1872, of the court of chancery, on leave for that purpose granted pursuant to said mandate, the petitioner amended his petition to conform to the facts found by the master in his report theretofore made, and prayed to be permitted to redeem said prior mortgages; and the cause was referred to a master to find the sum due on said prior mortgages, and whether, and for what length of time, the said Benjamin and Mosier, and the defendants, had been in possession of said premises. The yearly rental of said premises was found in said report to be $400, aside from the buildings and taxes. At the December term, 1872, the master reported the amount of the decree on said bank mortgage at the date thereof, and computed both simple and annual interest thereon from said date, and stated the different amounts, and found that said mortgage was given to secure the said Salford’s bond to said bank in the penal sum of $4,400, conditioned for the payment of that sum on the first day of January, 1860, with interest semi-annually ; and, if said bond should be assigned to the state treasurer, and said bank should at any time neglect or refuse to redeem its circulating notes on demand, then to become due and payable immediately. The amount of said Wood mortgage was reported, with interest computed in a similar manner, and the different amounts stated, as was also the amount of the $800 paid on the Nancy Safford mortgage. The master found that the Wood mortgage was given to secure notes bearing annual interest, and that the debt secured by the Nancy Safford mortgage was much more than $800, and did not bear annual interest. .The master also found that at the time of the commencement of this suit, the defendants, King, Durkee, Curtis, Jonas K. Flint, Bosworth, and Wills, were each in possession of some portion of said premises, and that they together occupied the whole •thereof. The court, at the December term, 1872, Barrett, Chancellor, decreed that the sum due upon said prior mortgages, and to be paid by the petitioner, was that reported by the master, including the largest sum computed by him as interest thereon. Appeal by the petitioner as to the sum due and to be paid by him.</p> <p>This court held in this case at their February term, 1872, that the petitioner must redeem the mortgages prior to his own, which were paid by Flint and Mosier, and the only question remaining open is as to the interest on the sums thus paid by Flint and Mosier.</p> <p>It appears that the only consideration from Flint and Mosier for the premises deeded them by Safford’s administrator, was their agreement to pay said prior mortgages; that they paid said mortgages in pursuance thereof, and immediately upon the conveyance took possession of the premises, and, by themselves and their assigns, have ever since possessed the same, taking the rents and profits to themselves.</p> <p>Wo insist that the defendants, having had the possession of the premises, are not in equity entitled to claim interest on the purchase money. To compel the petitioner to pay interest, would allow the defendants to have and enjoy the premises since October, 1858, without any consideration whatever. It is a well settled-equitable rule, that in case of an estate for life, charged with an incumbrance, the tenant for life is bound to keep down the interest out of the rents and profits, but he is not bound to pay the incumbrance itself. • 4 Kent Com. 74; 1 G-reenl. Cruise, 110, 659. The same equitable rule applies in the case at bar. When a grant is subject to a mortgage, the land granted will be primarily liable for the debt, and must be applied to its payment in the first instance, in exoneration of the personal liability of the mortgagor. 2 Lead. Cas. Eq. 242; Marsh v. Pike, 10 Paige, 595; Ferris v. Oraivford, 2Denio, 595 ; Cornell v. Prescott, 2 Barb. 17; Interest is allowed as incident to the debt on the agreement of the parties, express or implied, or as damages for not paying money when the party ought to pay. Abbott v. Wilmot, 22 Yt. 437; Fvarts v. Nason’s Estate, 11 Yt. 122; Hubbard et al. v. Branch R. R. Co. 11 Pick. 124. The rule of subrogation is never enforced against the superior equities of third persons. 1 Lead. Cas, Eq. 161, and cases cited.</p> <p>If the petitioner should be held to pay interest, we insist it should be only simple interest on the state treasurer decree and the Nancy Safford mortgage. Said decree bore simple interest when it was paid, and the defendants cannot be subrogated to any greater or higher rate of interest than the decree bore. Whatever the original cause of action was, it became merged in the decree, the same as in case of a judgment at law. 1 Chit. PL 120; Sawyer et al. v. Vilas, 19 Vt. 43; Marshall v. Aiken et als. 25 Yt. 327; LeFargo v. Horton, 3 Denio, 157. The judgment is a new contract of a higher nature, and simple interest only can be cast upon it. The Nancy Safford mortgage bore simple interest, and cannot be changed by the defendants to a debt bearing annual interest.</p> <p>The highest cast of the master on the Wood mortgage, is correct. We claim the same on the $800 paid on the Nancy Safford mortgage. We also claim the same as to the state treasurer decree, and insist that, at least, the rate due by the contract on which said decree was based, should be allowed as against a subsequent incumbrancer.</p>

The original bill alleged that, in the year 1829, Peleg S. Marsh owned a grist-mill and a saw-mill, and the land whereon the same stood, situate on the east side of the third branch of White River, in Bethel village, and a dam across said branch, and a right to the use of the water of said branch for operating said mills, with which were connected two flumes ; that in that year, Daniel Weston, intending to erect a joiner and wheelwright shop a little below said mills, and on…

<p> ■Divorce. Bringing of Petition. Authentication and Bffect of the Records of the Courts of another State. Pleading. </p> <p>A petition for divorce was made and dated June 19, 1871, and the summons thereto attached, and the order of notice by publication, were signed by the clerk and issued October 18, 1871. Held, that the petition was brought when the summons and order were signed and issued.</p> <p>A copy of the record of a judgment of the supreme judicial court of New Hampshire, in and for the county of Gr,, was attested by the clerk of said court, with the seal thereof annexed, as “ a true copy of record upon a petition for divorce, B. against B.,” and certified by the chief justice, that the person by whom said copy was attested, was clerk of said court, and had the keeping of the files, records, and proceedings thereof, and was by law the proper person to make out and certify copies thereof, and that full faith and credit were, and of right ought to be, given to all his official aots and attestations done as aforesaid, and that his attestation of said copy was in due form. Held, that said record was properly authenticated.</p> <p>In divorce proceedings, a former adjudication need not be specially pleaded as a bar, or an estoppel, but may be given in evidence at tbe trial.</p> <p>A former adjudication by the courts of New Hampshire, dismissing a petition for di-, vorce for want of sufficient proof of the allegations thereof, is not a bar to granting a divorce in this state for acts of intolerable severity, which were alleged and attempted to be proved in the proceedings in which such adjudication was had, but. which occurred in New York, while the parties were domiciled there, when it is not made to appear that the courts of New Hampshire had jurisdiction of causes happening while the parties were residing in another state, and without its jurisdiction.</p>

Trustee process. A commissioner was appointed, who reported as follows: “ Early in September, 1871, Hyde & Brown, of Strafford, at the defendant’s request, bought a threshing-machine of the manufacturer, at St. Johnsbury, at the price of $290, and paid .$14 freight thereon to Strafford, and the defendant was to pay them therefor $45 out of his pension money then due, and the balance in weekly iustallments -to the amount of about $20 a month, to meet the notes which Hyde &…

General assumpsit. Plea, the general issue, and trial by the the court, December term, 1872, Peck, J., presiding. The plaintiff claimed to recover $39.29 which the defendant, as the plaintiff’s constable, demanded and received of the plaintiff as fees for collecting an execution in favor of one Smith against the plaintiff, for $3949.15.