Volume 47 — Vermont Reports

Case for the defendant’s dog biting the plaintiff Mrs. Bates, the dog being accustomed to bite, and that known to the defendant. Plea, the general issue, and trial by jury, September term, 1872, Peck, J., presiding.

<p>Book Account. The plaintiff claimed to recover $10 for labor for the defendant’s son, $10 for labor for the defendant, and $40 for a pair of harnesses sold the defendant. It appeared before the auditor that the defendant brought an action of general assumpsit against the plaintiff before one Perley, a justice of the peace, wherein he recovered judgment against the plaintiff for $12.30, from which no appeal was taken. The defendant claimed that the last two items of the plaintiff’s account were adjudicated in that suit, and proved said judgment as a bar thereto, and as an offset to the first item, against the plaintiff’s objection. The auditor found that both parties appeared in that suit, and that the defendant therein orally pleaded a settlement, but claimed no offset, and told the justice that he submitted no question for his determination except as to said settlement, that if he found a settlement, he claimed his costs, otherwise, he admitted that the plaintiff should have judgment, as he did not go for any thing due him; that the justice notwithstanding, allowed the plaintiff the last two items of his account presented before the auditor, at $50, by way of offset, because he found them credited to the plaintiff on the defendant’s book, and not because the plaintiff presented them for allowance; that the plaintiff in that suit was allowed $14 for moving the plaintiff in this suit to Plainfield, in regard to which the latter then testified on cross-examination, that the defendant was to move him to Plainfield and give him $40 in money for the harnesses, which the defendant denied, and claimed he was to give only the $40 for the harnesses. The plaintiff claimed the same before the auditor, and the auditor found the fact accordingly, and that the $14 was wrongly allowed by the justice, and he deducted that sum from $20 which the plaintiff had otherwise received towards the harnesses, and allowed the plaintiff’s account, less $6, at $60.57, unless said judgment was a bar, and could be offset as claimed, in which event he deducted the amount of said judgment from the $14, and allowed the balance, with interest, at $1.87; but if said judgment was a bar, but could not be offset, he allowed the first item of the plaintiff’s account and the $14 with interest, at $26.40. The defendant was allowed to show before the auditor by the testimony of the justice, against the plaintiff’s objection, how said judgment was made up, what items were allowed and what disallowed, and how the $50 came to bo allowed in offset.</p> <p>The defendant pleaded said judgment in offset during the term at which the auditor’s report was filed. The court, at the September term, 1873, Peck, J., presiding, allowed the first item of the plaintiff’s account at $11.10, and disallowed the other two items, and allowed said judgment in offset at $13.30, and rendered judgment on the report for the defendant for $2.10 damages, and costs; to which the plaintiff excepted.</p> <p>The plaintiff claimed to recover costs up to the term the plea in offset was filed, and the defendant claimed to recover costs during the pendency of the suit, and that the plaintiff be allowed no costs. It was agreed that no more costs were made in trying all the items of the plaintiff’s account than would have been made in trying the two which were disallowed; and that no more were made before the auditor than would have been made in trying the one which was allowed ; and that the final hearing was not delayed because the plea in offset was not sooner filed. The plaintiff filed no formal replication to the plea in offset, but the defendant introduced a. copy of the record of the judgment pleaded, without objection. The court adjudged as to costs as claimed by the defendant. The plaintiff excepted to the disallowance of costs to him, and to the allowance of costs to the defendant before the term at which the plea in offset was filed.</p> <p>The last two items of the plaintiff’s account are not barred by the justice’s judgment; they were not pleaded or presented in offset, and were not before the justice for adjudication. In order to be barred by that judgment, the burden of proof is upon the defendant to show that they were presented in offset. Seddan et al. v. Tutop, 6 T. R. 607 ; Squires v. Whipple, 2 Vt. Ill; Stearns v. Admr. of Stearns, 32 Vt. 678. The most the defendant can claim is, that the $50 allowed the plaintiff in offset should be treated as payment pro tanto on the plaintiff’s claim. If a justice or a party allow a defendant a claim in offset without the defendant’s knowledge, in order to be a bar, the whole claim should be allowed, otherwise it would be a fraud. The testimony of the justice was improperly admitted.</p> <p>The court below erred on the question of costs. Gen. Sts. ch. 33, §17 ; Philbrieh v. Philbrieh, 27 Vt. 786 ; Brainard v. Oasey et al. 37 Vt. 479.</p> <p>The last two.items of the plaintiff’s account were fully adjudicated in the suit before the justice. It was a matter fully within his jurisdiction to try and determine. The plaintiff is therefore estopped by the judgment of the justice from recovering these items ; for it is a well settled principle of law, that when a matter of fact has been once adjudicated and determined by a judicial tribunal having competent jurisdiction, all parties and privies thereto are forever concluded and estopped from further litigating the same fact anew. Squires v. Whipple, 2 Yt. Ill; Carpenter v. Pier, 30 Yt. 81; Atwood v. Robbins, 35 Yt. 530. The offset was properly allowed in that suit. Harrington v. Hall, 2 Aik. 175.</p> <p>The court was correct in allowing to the defendant full costs. This case does not come within § 17, ch. 33, of the Gen. Sts. The plaintiff made no replication to, and joined no issue on, the plea in offset, but admitted it; therefore the defendant is entitled to recover full costs. Ainsworth v. Drew, 14 Yt. 563 ; Bramará v. Casey, 37 Yt. 479. The defendant could not make his judgment an item of book account before the auditor, and could only take advantage of it by direct plea in offset; and a final balance having been found due the defendant, he is entitled to recover full costs. Ainsworth v. Brew, supra.</p>

Assumpsit upon a subscription of $200 to induce the location of the plaintiff university at Northfield. Plea, the general issue ; trial by jury, and verdict for the plaintiff, September term, 1872, Peck, J., presiding. Exceptions by the defendant. The facts sufficiently appear in the opinion of the court. Creo. M. Pish, for the plaintiff, cited Story Agency, 109, and cases cited ; Moulton v. Hall et als. 27 Yt. 233 ; Andrus v. Howard,, 36 Yt. 248.

Book account. The plaintiffs were attorneys and partners. In February, 1867, all the defendants came to the plaintiffs’ office, and said they wished to consult them about an action of replevin then pending in favor of Samuel Daniels against the defendant Nelson, and also about an action of trespass for false imprisonment, then pending or about to be commenced against the defendants Nelson & Burnham.

Indictment for larceny. The indictment described the property stolen as “ one feather bed.” Trial by jury and verdict of guilty, September term, 1873, Peck, J., presiding. The respondent moved in arrest of judgment for that the indictment did not describe the property alleged to have been stolen, with sufficient definiteness and particularity.

Petition to the county court for laying out a highway in the town of Westfield, terminating at the Troy line.

General assumpsit. Plea, the general issue and trial by jury, February term, 1874, Peck, J., presiding. Held: that the bank note was renewed from time to time, the defendant paying his share of the interest at each renewal, until the plaintiff finally paid it himself, and also paid the two hundred dollar note to Badger; and this suit was brought to compel the defendant to contribute.

Case for injury on a highway. Plea, the general issue and trial by jury, September term, 1873, Redfield, J., presiding. Previous to the alleged injury, the plaintiff had ordered some fish from Boston for himself and a neighbor, Barrows, and on Saturday before the Sunday of the accident, he took two kegs of the fish, one for himself and one for Barrows, from Barton Landing, and carried his keg home, and left Barrows’s in Brown’s, another neighbor’s, carriage-house.

Case for the false, fraudulent, and malicious arrest and imprisonment of the plaintiff upon an execution issued upon a judgment in favor of the defendant against the plaintiff, which said judgment and execution the plaintiff alleged to be void.

Petition to foreclose a mortgage. The case was heard on petition, answer, traverse, and an agreed statement of facts. The defendant executed the notes and mortgage described in the petition, to one Bowker, on January 25, 1867. The notes were payable on or before the first day of March 1870 and 1871, respectively. The Bank of Newbury discounted the note first duo, on September 16, 1869; the Bank of St. Johnsbury discounted the other on August 1, 1870.

<p>This was a motion to bring forward a case in favor of the plaintiff against the defendant Kimpton, wherein judgment was rendered for the plaintiff at the September term, 1871, and to have the entry of judgment stricken off, and judgment entered up for the plaintiff, embracing a brief statement of the contract upon which the same was founded, that the plaintiff might preserve his statutory lien on a saw-mill and lot attached on the original writ in said cause.</p> <p>On the 24th of February, 1871, the plaintiff filed a mechanics’ lien on said property.</p> <p>The original writ in said cause was dated February 28, 1871, and returnable to the then next term of Essex county court ; and at the next September term thereof, judgment was rendered thereon in favor of the plaintiff, and recorded in the town clerk’s office of Morgan, the town in which said property was situate, January 13, 1872. Kimpton purchased the land attached of one Cargill, February 16, 1870, and mortgaged the same to said Car-gill to secure the purchase money, and there was due on that mortgage at the time of this proceeding, some over $1000. Kimpton built a saw-mill, blacksmith shop, and t.wo or three houses on the lot; and also a small house on the lot adjoining. On the 9th of August, 1870, he deeded the land attached to George N. Dale by warranty deed ; but it was understood that Dale should re-deed on demand and payment of what might be due him.</p> <p>On the 21st of August, 1871, Kimpton deeded his interest to Hobson, ahd on the 13th of June, 1872, Hobson deeded the same to Pierce by quit-claim deed, Pierce paying about $12,000 therefor in money, and assuming certain encumbrances thereon, not including the plaintiff’s. Dale deeded to Pierce, January 3d, 1873, and at the same time took a mortgage for the amount due him, about $2500. On the 3d of January, 1873, Winslow & Coombs took a mortgage from Pierce, on which there is due about $11,000; also another on the 29th of November, 1873, on which there is due about $6,000.</p> <p>When Hobson received the conveyance from Kimpton, and when he conveyed to Pierce, they both understood that some proceedings had been had to secure about $400 in favor of the plaintiff, and that the plaintiff claimed a lien on the property, but they did not understand that he had a valid lien thereon, but supposed that whatever he had was not valid. They made no inquiries of the plaintiff in regard to the same. When Winslow & Coombs took their mortgages, it did not appear whether or not they had knowledge of the plaintiff’s lien.</p> <p>The iron work charged for by the plaintiff, was used principally about building the mill on the premises attached. The chains and sleds were used in drawing materials to build the mill, the blacksmith shop, and the houses, and to draw logs into the mill; and the horses and oxen, the shoeing of which was charged, were used for the same purpose The contract under which the work was done, was made about the 10th of April, 1870. Kimpton asked the plaintiff if he would do the iron work for his mill, and said he would furnish him' funds fast enough to pay for all the stock, and pay the balance when the work was completed, and wished the plaintiff to work according to the order of Jones, the mill-wright who had charge of building the mill. The plaintiff agreed to do so, and the goods were delivered on the orders of both Jones and Kimpton.</p> <p>The defendants objected to the motion being granted,—</p> <p>1. Because the charges were not of the nature of those contemplated by the statute.</p> <p>. 2. Because the work was not done under a contract provided for by the statute.</p> <p>3. Because when Hobson purchased, he acquired a right which the motion could not disturb.</p> <p>4. Because when Pierce purchased, the plaintiff’s claim was upon the town records, and Pierce had a right to regard that as the only claim he had, and the records showed that the plaintiff had no lien.</p> <p>5. Because Winslow & Coombs took their mortgage for what the property was worth, with no knowledge of any lien or claim by the plaintiff.</p> <p>The court, at the March term, 1874, Ross, J. presiding, overruled the objections, and ordered the original'suit brought forward and the entry of judgment therein stricken off, and rendered judgment for plaintiff for the amount agreed upon, embracing a statement of the contract set forth in plaintiff’s lien, with an order in regard to the costs.</p> <p>The court found that Hobson and Pierce at the time of taking their respective conveyances, had sufficient knowledge in relation to the plaintiff’s claim and proceedings, to put them on inquiry in regard thereto, and that therefore they stood no better than Kimpton. The court did not attempt to decide or settle the order in which the various mortgages and the plaintiff’s lien, when perfected, should be paid out of the property, but left that to be determined in some proper proceeding for that purpose. Exceptions by the defendants.</p> <p>If it is claimed that this is not a proper time or place to urge our objections to the plaintiff’s lien, we reply that we claim the right to meet the motion here, and resist it now. The benefit to the plaintiff of the orders granted by the court below, depends entirely upon how those objections are disposed of, and they are disposed of by rules of law, and not by discretionary powers; and rights have been acquired in the property, knowing that no lien existed, and there is no power in a court to make a record which would disturb those rights; for if the court has power to bring this lien to life, its age must be computed from its birth, and if this order is creative, the lien and order are contemporary, and if the lien is to take effect only from the order, then an attachment of the property would accomplish all the law ought to do for the plaintiff. Proceedings like those to create, a lien, are entirely dependant upon the statute for support, and no omission of any statute requirement can be supplied or excused by an order of court, especially if such lien is sought for the purpose of disturbing intervening rights.</p> <p>But it is said that this is a mere motion to bring the case forward, and that afterwards these objections can be urged. But we deny the right to have such order made, because we have the right to show here that such order is ineffectual to accomplish anything for the plaintiff. We are not to be compelled to risk its effect as an estoppel, nor ought we, as subsequent purchasers or as mortgagees, to be subjected to the expense of marshalling the claims to this property. But the plaintiff is designing more than this, for if he did not seek priority over these mortgages and claims, his motion would be ineffectual. It would" be unjust to revive this lien and give it priority over a mortgage taken subsequent to the commencement of the lien proceedings; and yet, while it is a creature of the statute which prescribes its effects as well as its requisites, how can the court restrict or control its effects ? It is either a lien from its beginning, in virtue of the statute, or it is lost; and, of course, as against subsequent conveyances without notice, it can have no effect.</p> <p>We submit that as matter of law the court below has no authority to make the order, and that it is subject to revision by this court; for if it shall be decided here that the plaintiff has no lien on the property, there would be no foundation or cause for the motion. And whether there is a lien or not, is a question of law for this court; therefore, this court is to determine on what foundation the order is made, for on that the correctness of the order depends. If to revive a lien the very existence of which is disputed, is mere discretion, this court could not revive an order creating a lien where none existed.</p> <p>A mechanics lien is created by statute, only in cases in which some agreement has been made to furnish materials for erecting or repairing some building, and docs not apply to this case, in which the work was furnished indiscriminately for various buildings as well as for other purposes. These services are not immediately connected with the erection of the mill. Phillips Mech. Liens; Johnson v. Pike, 35 Me. 291; Lombard v. Pike, 33 Me. 141; Stafford v. True, 33 Me. 281; Bicknell v. Trickey, 34 Me. 273; McOullis v. Wilson, 24 Me. 286; Pearsons .v. Tinker, 34 Me. 384; Robinson v. Runker, 38 Me. 130 ; Perkins v. Pike, 42 Me. 141.</p> <p>The remaining three objections to the motion are based upon the well-established doctrine, that the purchaser of real property takes his notice from the public records as to the title; and when Pierce pui'phased, ho relied upon the records as they were, showing the premises clear from this encumbrance, and now the plaintiff seeks to reform or rather raise a dead proceeding based upon a statute which is in derogation of the common law, in order to disturb vested rights.</p> <p>The authorities are very numerous that sustain our motion as against Kimpton, to have the former judgment stricken off, the action brought forward, and a new judgment rendered, setting out the lien, so that it shall be preserved upon the property. Prank v. Prank, 43 N. H. 608 ; Porter v. Vaughan et al. 22 Vt. 269 ; Mosseux v. Brigham, 19 Vt. 460 ; Tudor et al. v. Taylor, 26 Vt. 444-449; Hazen v. Snow, 14 Pick. 28; Johnson v. Bay, 17 Pick. 106.</p> <p>If the plaintiff is entitled to have the judgment amended as against the defendant Kimpton, he is against Hobson and Pierce, as they both took their title by quit claim deed, with full knowledge of the plaintiff’s claim. As the case stands, the question is, whether the plaintiff has a lien that he is entitled to enforce against Kimpton, on property that belonged to Kimpton. The questions of the priority of the mortgage incumbrances, or what may be due thereon, and to whom, are not raised by this proceeding.</p> <p>It is not necessary that the labor or materials should go directly into the construction of the building, to give a lien under the statute. But if the court think otherwise, and that the plaintiff has no lien for shoeing oxen used on the work, and other like charges that only went indirectly into the construction of the work, then we claim that the payments upon this account should be applied upon that part of the account for which the plaintiff has no security. Briggs v. Williams et als. 2 Vt. 283.</p> <p>We claim that there was such a contract or agreement as brings this case within the statute. Kenney v. Q-age, 33 Yt. 302 ; Parks v. Bill, 7 Gray 429 ; Dewing v. Cong. Soc. of Wilhraham, 13 Gray 144 ; Whitford v. Newell, 2 Allen, 424 ; Morse v. School Dist. 3 Allen 307.</p>

The answer was traversed and testimony taken ; and at the June term, 1874, Ross, Chancellor, the bill was dismissed, proforma, by agreement. Appeal by the orators. The case sufficiently appears from the opinion.

Magoon and family from the town of Danville to the town of Wheelock, made on the 20th of March, 1873, for that said Magoon was likely to become chargeable to said Danville. Pleas, that said Magoon was not likely to become so chargeable, and that his last legal settlement was not in the town of Wheelock. Trial by jury, December term, 1873, Ross, J., presiding, and verdict for the plaintiff.

Assumpsit, appealed from the judgment of a justice of the peace by the defendant, who failed to enter his' appeal in the county court within the time prescribed by the rules thereof, whereupon the plaintiff entered the same for affirmance. It was not claimed that it was necessary to have the judgment affirmed to protect any right or lien of the plaintiff.

The bill alleged that the defendant Batchelder conveyed a farm to the-orator on the 19th of August, 1867, by warranty deed, for the consideration of $900, for which the orator executed to him nine notes of $100 each, payable yearly, and secured by mortgage on said farm; that the orator had paid and taken up three of said notes, and that the others were outstanding and not due; that at the. time of the orator’s purchase, said farm was incumbered by mortgage from said…

Assumpsit. Trial by jury and verdict for the plaintiff, June term, 1873, Ross, J. presiding.

Case for injury received by the plaintiff while in the defendant’s employment, by reason of a defective engine used by the defendant. Pleas, the general issue and statute of limitations.

This was a complaint by the state’s attorney for assault and battery and impeding one Bailey, collector of school district No. 5 in Ryegate, appealed to the county court. The complaint set the respondent up as of Ryegate, and alleged the offence to have been committed there. The warrant was returnable at the state’s attorney’s office in St. Johnsbury.

Indictment for rape upon Lillian Gray, a female above the age of consent, on the 20th day of January, 1874. Plea, not guilty. Trial by jury and verdict of guilty, June term, 1874, Eoss, J., presiding.

Assumpsit upon two promissory notes. The writ was dated November 18, 1870.

Case for injury to the plaintiff Mrs. Durgin on a highway. Plea, tbe general issue, and trial by jury and verdict for tbe plaintiffs, September term, 1873, Washington county, Peck, J., presiding. It was claimed by the plaintiffs, and their evidence tended to show, that Mrs. Durgin was seriously injured, externally and internally, by being tipped over in a sleigh in going to a ball on the 19th of January, 1872, with her husband, to Danville Green.

Case for diverting water from the plaintiff’s machine shop in the village of Brandon. Plea, the general issue, and trial by jury, and verdict for the plaintiff for |500 damages, September term, 1871, Rutland county, Wheeler, J., presiding.

General assumpsit to recover back the consideration paid for an interest in an invention or right to procure a patent for an improved knitting-machine needle. Plea, the general issue; trial by jury and verdict for the plaintiff, February term, 1874, Orleans county, Peck, J., presiding. The writ was dated November 22, 1871.

Covenant. Pleas, non est factum, payment, and performance. Trial by the court, September term, 1873, Rutland county, Wheeler, J., presiding. The contract declared upon was dated December 1, 1869, and provided for the delivery of a certain quantity of marble by the plaintiffs to the defendants each year, for the full term of sis years from the date thereof, at the price of $1.75 per cubic foot.

Assumpsit upon a policy of insurance on a woolen factory, machinery, and contents. Plea, the general issue, and trial by the court, June term, 1874, Caledonia county, Ross, J., presiding.

The caso was this: The Rutland & Washington R. R. Co. was incorporated in this state, November 13, 1847, to construct and operate a road from Rutland to the New York state line, there to connect with the Troy & Rutland R. R. On June 24, 1850, it leased from the latter company the franchise and right to construct its road from the state line to Salem, N. Y.; and on June 17, 1852, it also leased from the latter company the residue of its road, extending to Eagle Bridge.

Trespass on the case for using water from the plaintiff’s aqueduct, without permission of the plaintiff’s water commissioners, brought upon §4, No. 76, of the Acts of 1858, entitled, “An act in addition to an act incorporating the village of Rutland.” * Plea, the general issue, and trial by the court, March term, 1873, Rutland county, Wheeler, J., presiding.

<p>Appeal from a pro forma decree of the court of chancery, Caledonia county, made at the June term, 1873, Ross, Chancellor, dismissing the bill, with costs.</p> <p>The case sufficiently appears from the opinion.</p>

Case for injury to the wife, occasioned by reason of the insufficiency and want of repair of the defendant’s toll-bridge across the Connecticut River, from Haverhill, in the state of New Hampshire, to Newbury, in this state. The writ was returnable to the June term, 1871, Orange county, when the suit was entered, the defendant appeared by attorney, and obtained a rule for bail, and the case was continued under the rules of court.

Ejectment for lot No. 70 in the third division in the town of Groton. The writ contained two counts ; one for the whole lot, and one for three acres of the south-east corner of the lot, on which stood the Lake House Hotel, so called. Plea, the general issue, and trial' by jury, June term, 1873, Caledonia county, Ross, J., presiding.

Trial by jury, September term, 1878, Chittenden county, Pierpoint, Ch J., presiding. The plaintiff’s claim was of a promissory note for $4800, purporting to be signed by the intestate, payable to the plaintiff or bearer, and dated April 80, 1869. The plaintiff’s testimony tended to show the making of a loan of the amount of the note, and the execution of the note by the intestate.

Trover for a sleigh. Trial by jury, September term, 187 3, Pierpoint, Oh. J., presiding.* In the fall of 1872, the plaintiff owned the sleigh in question, and left it in the possession of one Ring, of whom he bought it. One Brown, a boot-maker, living near Ring, moved it from Ring’s possession, and had it in his possession, and used it more or less till the last of sleighing, when he ran away.

Trover for a wagon. Plea, the general issue ; trial by jury, and verdict for defendant, April term, 1874. Pierpoint, Oh. J., presiding. • The case was, the plaintiff bought a lot of property of one Thompson, on December 17, 1872, which was in the defendant’s possession, and paid him therefor $150 in money, and his note for $75 on six months.

Petition for mandamus, to compel the respondent, court auditor for the county of Chittenden, to audit the relator’s account against the 'state, for keeping one Carrie Flanders, a citizen of New York, in the jail of said county, whereof the relator was keeper, the said Carrie having been committed to said jail by the city court of the city of Burlington, under the vagrant act, approved November 3, 1864.

Petition to foreclose a mortgage executed to the petitioner by png Henley, on April 20, 1865- The petition was answered, and testimony taken. The defence was payment. At the'September term, 1874, Pierpoint, Chancellor, the petition was dismissed, pro forma, with costs, without hearing. Appeal by the petitioner. The case is stated in the opinion.

General assumpsit. Plea, the general issue, and trial by jury, September term, 1878, Pierpoint, Ch. J., presiding. On June 17, 1871, the plaintiff quit-claimed to the defendants the timber on a certain lot, to be taken off within three years, for $282.50, payable by installments. A written contract was executed between the parties, fixing the time of payments, and giving the plaintiff a lien on said timber, and the lumber manufactured from it, to secure the purchase money.

Trustee Process. Foley owed Dixon $9.85, and gave him a claim of $10 against Nevins, to collect and give him credit for. Dixon made a writ on the claim, and sent it to Macomber, with instructions to serve it, unless Nevins paid him the $10, and $1 for the writ, and his fees; in which event Macomber was instructed to seúd the $10 to Dixon in a registered letter. Nevins paid Macomber the money; but before Macomber had time to send it to Dixon, he was trusteed in this suit.

<p> Meeting-House. Pew-Holders. Trespass. Damages. </p> <p>A meeting-house was built upon land with the permission oX the owner, who subsequently conveyed the land to trustees in trust, to be occupied Xor a meeting-house common, or green, and lor the continuation oX a meeting-house thereon; and when it ceased to be occupied lor that purpose, to revert to the grantor. I-Ield, that the failure to keep the house in such repair that it could be occupied for public worship, would not, of itself, terminate the right oí a pew-holder to his pew, nor leave him without right to maintain an action ior injury done thereto by a stranger; but would only make his right thereto less valuable, and therefore lessen the amount he could recover.</p> <p>A pew-holder cannot maintain trespass for the mere breaking and entry of the meeting-house in which his pew is situate; but he may for the destruction of his pew, and this, although he sue for the entry with it; for the destruction of the pew is the gist of the action.</p> <p>Although others may have so far obtained possession of a meeting-house as to oust the society, yet a pew-holder may maintain trespass for the first invasion of his individual right to his pew after such ouster.</p> <p>A pew-holder’s right is only a right to occupy 'his pew during public worship; and when the meeting-house is in such ruinous condition that it cannot be and is not occupied for public worship, he can recover only nominal damages for injury to his pew.</p>

Assumpsit on a note for $150, dated June 20,1867, payable to William H. Niles, or bearer, in two months from date. Plea, the general issue. Trial by jury and verdict for the defendant, September term, 1874, Pierpoint, Ch. J., presiding. The plaintiffs held the note merely for collection, one Coffin being the real owner thereof, who took it before maturity, in part payment of a pre-existing debt against Niles, and allowed the full face thereof.

<p> Soldier's Bounty. </p> <p>Previous to the plaintiff’s re-enlistment in the field, to the defendant’s credit, lie learned from a letter written by one of the defendant’s selectmen who had authority to procure enlistments, but it did not appear that it was written in his official capacity, to one of the members of the plaintiff’s company, that the town was paying a bounty of $300 to each man who would enlist to the credit of the town on its quota under the call of October 17, 18G3, for 300,000 men; and the plaintiff re-enlisted and was mustered to the credit of the town, relying upon the information contained in said letter, expecting the bounty. Immediately upon his re-enlistment, lie and others of his company who had re-enlisted, caused a letter to be written to the selectmen, giving them notice of their re-enlistment, and that they understood they should apply on said quota, and that they should claim the bounty. I-Ield, that said letters did not constitute a contract between the plaintiff and the town.</p>

<p>This was a complaint in the city court of Burlington, under § 13, ch. 94, of the Gen. Sts., for owning, keeping, and possessing intoxicating liquor, with intent to sell and furnish the same, contrary to the provisions of said chapter.</p> <p>The respondent pleaded not guilty, and demanded a trial by a jury of twelve men, under the provisions of the constitution of the state; but the court, Tyler, J., denied such trial; to which the respondent excepted. The respondent then demanded a trial by jury, under the provisions of § 36, ch. 94, of the Gen. Sts.; but the court ruled that he was not entitled to a jury under that section ; to which the respondent excepted. The respondent then demanded a trial by a jury of six men, under §§ 43, 44, ch. 31, of the Gen. Sts.; but the court denied such trial; to which the respondent excepted. The court then proceeded to try the respondent; and upon the evidence adduced, found him guilty, and sentenced him to pay a fine and costs. The respondent prayed for an appeal to the county court, whereupon the court required him to enter into a recognizance for appeal in the sum of $50, with surety, and to pay the court fifty cents for the appeal. The respondent claimed that he was unable,, by means of extreme poverty, to give such recognizance with surety, or to pay said sum of fifty cents ; and claimed, as matter of law, that he was entitled to an appeal without giving the recognizance required by § 16, ch. 94, of the Gen. Sts., or paying said fee to the court. But the court ruled that to entitle the respondent to an appeal, lie must pay the court fee of fifty cents, fixed by the city charter, and enter into the recognizance required ; and the respondent not complying with such ruling, the appeal was denied ; to which the respondent excepted. The respondent then offered his personal recognizance for an appeal, which the court refused, and the respondent excepted.</p> <p>Sec. 33, part 2, of the state constitution, declares that excessive bail shall not be exacted for bailable offences. The word bail, when applied to criminal cases, has a settled and well-known signification, and as such it is to be presumed was used in the constitution. Bail, in criminal cases, is defined to be a delivery or bailment of a person to sureties, upon their giving, together with himself, sufficient security for his appearance, he being suffered to remain in this friendly custody instead of going to prison. 1 Bouv. Law Diet., Tit. Bail. This is the bail authorized to be required by the constitution — bail for the personal appearance of the accused only. The provision of the constitution above cited, must be taken as a limitation upon the power of the legislative department in the enacting of laws relating to bail in criminal cases. It has therefore no constitutional authority to require of a person charged with a bailable offence, the giving of any other or different bail. Sec. 16, cli. 94, of the Gen. Sts., requires the accused to furnish bail of a different and more onerous and burdensome character from that required by the constitution, and is in conflict with that instrument, and therefore null and void. State v. Q-urney, 37 Me. 156.</p> <p>The respondent is charged with a criminal offence, and is entitled to a trial by a common law jury, as guaranteed by article X. of our Bill of Rights. In order to obtain that right, he must appeal to the county court, where provision is mac e by law for such trial. Therefore, in order that he may enjoy and obtain such rights fully and unimpaired, the right of appeal must be secured, untrammeled and unfettered. Slate v. Peterson, 41 Vt. 504, 522. The accused can only be required, on taking his appeal, to furnish security for his personal appearance before the appellate court, where such trial may be had, and there to prosecute his appeal to effect. Any other terms or conditions are excessive, oppressive, and unreasonable, and fetter and trammel the right of appeal, and thereby impair the right of trial by jury. In this respect; § 16, ch. 94, of the Gen. Sts., requiring the accused to enter into a recognizance with sureties, “to the state” — “to pay all costs, fines, and forfeitures, and undergo all penalties that may be awarded against him upon the final disposition of his case,” in order to obtain an appeal, imposes terms and conditions upon that right not warranted by the constitution, and impairs the right of trial by jury guaranteed thereby, and is therefore null and void. Green v. Briggs, 1 Curtis, C. C. 325; State v. Gurney, supra; State v. Peterson, supra; Jones v. Robbins, 8 Gray, 329.</p> <p>On the same ground, the exaction of a fee of fifty cents by the city court, as a condition precedent to the right of appeal, was unauthorized and illegal, as the staute authorizing it is null and void.</p> <p>Under the act of the legislature incorporating the city of Burlington and creating the city court, that court did not err in refusing to grant a trial by jury in any form. It is within the province of the legislature, to regulate the administration of justice, and make such provisions for the trial of causes as the public interest and welfare may seem to require ; and in so doing, the legislature does not exceed its powers in providing for the hearing and decision of causes of this nature in an inferior court, without the intervention of a jury, provided the right of trial, on appeal, by a constitutional jury in the appellate court, is not infringed. Sedgw. Cont. Law, 547 ; Bennett, J., in Lincoln v. Smith, 27 Yt. 361; State v. Peterson, 41 Yt. 515 ; Beers v. Beers, 4 Conn. 539.</p> <p>The ruling of the city court, that the respondent must enter into recognizance for the appeal according to the provisions of the statute, was correct. Gen. Sts., ch. 94, §16. The requirements of the statute conflict with no constitutional right. To pronounce a law unconstitutional, its invalidity and nullity must appear beyond a reeasonable doubt; and no court can so detide, upon the ground merely of some supposed injustice in its operation, provided it bo on a subject-matter within the scope of legislative enactment. Cooley Const. Lim. §§ 164, 168, 182. It is within the province of the legislature, not only to create new offences, but to provide new forums for the trial of offences between the arrest of the individual and the ultimate decision, on appeal, by a constitutional jury. Such legislation is not prohibited by the constitution, and hence does not conflict with the constitutional guaranty. Potter’s Dwarris, 456 ; Beers v. Beers, supra ; Van Sioartow v. Oommomvealth, 24 Penn. 131; Cooley Const. Lim. §168. The right of appeal is not unreasonably fettered by requiring such recognizances ; and even if the provision should occasionally be claimed to operate as a hardship, that would constitute no sufficient reason for declaring the law requiring the recognizance, unconstitutional. State v. Peterson, supra; Beers v. Beers, supra; Sullivan v. Adams, 3 Gray 476. Articles 10 and 12 of the Bill of Rights, are very nearly related to each other in their provisions, and are to be construed together in pari materia. The latter article in interpretation includes and embraces the former. State v. Peterson, supra. Sec. 66, ch. 31, Gen. Sts., requires that the appellant in civil cases, shall furnish surety by way of recognizance to pay all intervening damages and costs, &g. This requirement, dating back to the organization of the state government, has been held in Plimpton v. Somerset, 33 Yt. 293, to be no infringement of the constitutional guaranty. Sec. 16 of ch. 94, under which the case at bar arises, requires of the appellant, in effect, no more. Under both statutes the appellant is required as well to pay for the appeal as to furnish recognizance, and the results flowing from the recognizance is substantially the same in both cases. If, as decided, there is no infringement of the constitutional guaranty in one case, how can there be in the other ?</p>

This was a grand juror’s complaint preferred to the city court of the city of Burlington, alleging that the respondent, “ on the 21st day of September, 1874, at said Burlington, was found in such a state of intoxication by the use of intoxicating liquor, as to break and disturb the public peace,” contra formam statui. Plea, not guilty.

<p>This was a grand juror’s complaint for a breach of the peace, under §1, ch. 116, of the Gen. Sts., preferred to the city court of the city of Burlington. The complaint alleged that the respondent, on the 18th day of March, 1874, at, &c., “ did disturb and break the public peace by tumultuous and offensive carriage then and there to the public exhibited, by threatening, quarrelling with, challenging, assaulting, beating, and striking Joseph Langlois, of said city; which said offensive carriage of the said Martin, exhibited as aforesaid, did disturb and break the public peace,” contra formam statui. The respondent pleaded in abatement, for that a memorandum of the names of the witnesses in support of the prosecution, was not subjoined to said complaint; but the court, Tyler, J., overruled the plea, and allowed the grand juror to subjoin such memorandum; to which the respondent excepted.</p> <p>The respondent then demurred to the complaint, for that it was not alleged therein that the acts or offence charged, were committed vi et armis ; that the acts and offence were not alleged with sufficient certainty as to time; that the offence was not alleged with sufficient certainty and particularity; and that the means by which the offence was committed, was not set forth with sufficient particularity and certainty. The court overruled the demurrer, and adjudged the complaint sufficient; to which the respondent excepted. On trial, the respondent was found guilty, and sentenced to pay a fine and costs.</p> <p>The plea in abatement ought to have been sustained, and the complaint quashed. Gen. Sts. §87, ch. 16; State v. Norton, 45 Yt. 258. That this is so, will appear from an examination of analogous cases, arising from a non-compliance with statutory requirements. Gen. Sts. ch. 30, § 39; ch. 37, § 16 ; Qlarlc v. Stoughton et al. 18 Yt. 50; State v. Brown, 31 Vt. 602.</p> <p>The offence charged being a breach of the peace, it was necessary to allege that it was committed with force and arms. State v. Munger, 15 Yt. 290, 296; 1 Bishop Grim. Proced. §263.</p> <p>The offence is not charged with sufficient' certainty and particularly. The acts constituting the offence should have been set forth by direct and positive averment. The only direct and positive averment in the complaint is, that the respondent did disturb and break the public peace by tumultuous and offensive carriage, which is merely the opinion of the pleader. The clause, “ by threatening, quarrelling, challenging, assaulting, beating and striking,” &c., is also a mere statement of the pleader’s opinion; or, in other words, in the pleader’s opinion, such was the means by which the offensive and tumultuous carriage was exhibited to the public. State v. Matthews, 42 Yt. 542, 552.</p> <p>The object of the provision of § 87, ch. 15, of the Gen. Sts., was, to apprise the party of the names of the witnesses who would be used to prove the facts charged in the complaint, and thus to prevent surprise at the trial. The memorandum referred to in said section, is in the nature of a specification, which, when demanded at the proper time,'must be furnished. State v. Norton, 45 Yt. 258. It forms no fiart of the complaint. But if otherwise, the defect was aided by the motion to amend. State v. Batchelder, 6 Yt. 479, 488.</p> <p>The words vi et armis are matter of form only, and therefore not a necessary part of the complaint. When the words used are such as sufficiently imply force, the omission to declare vi et armis, docs not render the complaint obnoxious to a demurrer.' Rex v. Wynd et als. 2 Stra. [884] ; Lord Rayrn. 985; 1 Saund. 81; Bac. Ab.' Tit. Indictment, (G), 6; Brackett v. State, 2 Tyler, 166; State v. Munger, 15 Yt, 296; 1 Bishop Grim. Proced. §§ 263, 373, n. 8.</p>

<p>Meaning of the word Intoxicated, as used in § 10, ch. 94, of the Gen. Sts. Sufficiency of Record on Appeal, and Effect of Going to Trial thereon.</p> <p>The word intoxicated is used in § 10, ch. 94, of the Gen. Sts., in its common and ordinary signification, and means intoxicated on spirituous liquor; and a complaint under that section, charging that the respondent “became and was found intoxicated,” is sufficient, without alleging upon what he became intoxicated.</p> <p>The respondent, complained of irnder. said section, appealed, and filed a record in the county court, which recited that the grand juror complained that the respondent, at a time and place named, “ became and was found intoxicated, contrary,” &e. The respondent went to trial by jury on the plea of not guilty. Held, that the record sufficiently showed what' the complaint was; that the respondent, being the appealing party, and having entered .his appeal and taken a trial on the complaint shown by the record, must be held to have no wider scope under a motion in arrest, than he would have had upon a demurrer interposed before plea and trial.</p>

This was a grand juror’s complaint under § 13, ch. 94, of the Gen. Sts., preferred to the city court of the city of Burlington, and appealed to the county court.

<p> Municipal Corporations. Certiorari. City of Burlington. Street Commissioners. Assessments for Sewers. </p> <p>The legislature has constitutional power to confer upon municipal corporations the right to make assessments upon the property benefitted, for the purpose of defraying the expense of making local improvements.</p> <p>On petition for certiorari, an objection that the commissioners appointed by the county court on appeal from an assessment by the street commissioners of the city of Burlington erroneously decided as matter of law that the assessment appealed from was legal and valid, — is not available, as their decision is not final.</p> <p>Said street commissioners have no power to lay an assessment for the construction of sewers, without notice to the owners of adjoining lands, as required by § 2, No. 88, of the Acts of 1868; and an assessment so laid, is void, and said commissioners may proceed as if it were never laid, and lay another for the same purpose in lieu thereof.</p> <p>The statute does not require said street commissioners to give notice of the establishment of sewers.</p>

<p> Lease. Covenant for Quiet Enjoyment. Elder and Better Title. </p> <p>A covenant for quiet enjoyment relates to the lessor’stitle and right to grant the premises, and to the possession thereof during the term, and not to their possession and enjoyment in fact by the lessee, as against those having no right to disturb him. It is a covenant that the lessee shall not be rightfully disturbed in his possession and enjoyment during the term, not that he shall not be disturbed at all.</p> <p>The defendants, as trustees, leased trust property to the plaintiff which was in the possession of third parties under an agreement with the defendants’ predecessor in the trust. Said parties continued in possession of the property during the plaintiff’s term, and would not surrender to him. It did not appear that said parties were entitled under said agreement, to hold as against the plaintiff, nor that they had any other title by which they could rightfully keep him out. Held, that the plaintiff was not kept oirt by title elder and better than his own.</p>

<p> Contract. </p> <p>The plaintiff voluntarily, and without cause, abandoned a contract to build a house for the defendant, before the completion thereof, and sued to recover the contract price. The defendant presented in offset a claim for work done and expense incurred by himself on said job, and for work necessary to be done thereon to complete the same, and for damage for the non-completion thereof by the plaintiff, which was allowed by tlie referee. Held, that the defendant thereby received an equivalent for the performance of said contract, and that the plaintiff was, therefore, entitled to recover the contract price.</p>

<p>[In Chancery.]</p> <p> Corporation. Fraudulent Conveyance. Chancery. Statute of Limitations. </p> <p>H the officei's of an insolvent corporation should neglect to call in unpaid subscriptions due the company from solvent stockholders, it would be the duty of the court of chancery, if such stockholders were parties to the bill, to decree payment to a judgment creditor of the company, to at least the extent of such unpaid subscriptions that were collectable. Ross, J.</p> <p>A judgment creditor must levy bis execution upon tbe land, before be can resort to chancery to have tbe conveyance thereof by bis debtor decreed void as to him. Ross, J.</p> <p>When a statute makes the officers of a corporation personally liable in an action founded on ike statute, for all debts oí the corporation contracted during the period of any neglect or refusal of such officers to perform certain statutory duties, a creditor of such corporation cannot enforce such liability in chancery — his remedy is complete at law, upon tbe statute.</p> <p>Such liability accrues when the debt is thus contracted, and the statute of limitations is not arrested thereon by the recovery of a judgment on such debt against the corporation.</p>

Trespass de bonis, with a count in trover. Plea, the general issue, with notice of special matter, and trial by the court, April term, 1873, Royce, J., presiding. Judgment for the plaintiff, and exceptions by the defendant. The case appears from the opinion. contended that by the vote of the town, said districts were, disorganized, and a new district formed; and cited Gen. Sts. ch. 22, §§20, 21, 23; Conversen.

Petition for review of a decree of the court of chancery in favor of this defendant, made in a case between him as orator, and these petitioners as trustees and receivers operating the Yt. Central and the Yt. & Canada Railroads, as defendants. The case sufficiently appears in the opinion.

General assumpsit. The case was referred, and the referee reported the following facts. The plaintiffs were grocers at St. Albans. The defendants were railroad contractors, and contracted to build the Missisquoi Railroad from St. Albans to Richford, and had sublet the building of a portion thereof to one King.

<p>Assumpsit to recover one fifteenth of the sum of $4,071.14 expended in the construction of a public highway in the plaintiff town, as hereafter stated. Pleas, the general issue and statute of limitations. Trial by the court, September term, 1873. Royce, J., presiding.</p> <p>It was conceded that upon the petition of Moses McFarland and others against the towns of Fairfax, Georgia, and Cambridge, to the supreme court for Lamoille county, said court at its August term, 1860, established a public highway down the Lamoille River from a point in Cambridge to Georgia depot, in the town of Georgia; that about two miles of said highway was in the town of Fairfax, and that said court, among other things, ordered said town of Fairfax to build and open to public travel that portion of said road laid in said town, on or before the 1st day of October, 1861, and upon due notice and hearing for that purpose, assessed the town of Fletcher to contribute and pay one fifteenth of the expense of building said road in said Fairfax ; that afterwards, upon the petition of said town of Fairfax, the time for building said road was extended to October 1st, 1863.</p> <p>The plaintiff gave evidence tending to show, that in 1865, and more than six years prior to the commencement of this suit, the town of Fairfax expended under said order of court, the sum of $1,153, in building a bridge on said road and as part of it; that said town, neglecting and refusing to further build said road under said order, was indicted at the September term, 1865, of Franklin county court, for such neglect and refusal, and that a trial was had upon said indictment at the April term, 1866, of said court, and said town, upon the plea of guilty, sentenced to pay a fine of $4,100, and costs, to the treasurer of the state of Vermont, and that said court appointed one Samuel Randall a commissioner to superintend the expenditure of said fine in the building of the said road, and that said commissioner did expend the sum of $2,918.14 thereof.</p> <p>The defendant objected to this evidence on the ground of variance, and because the plaintiff under its declaration could not recover of the defendant any portion of the money expended by said commissioner. The court overruled the objections, and admitted the evidence; to which the defendant excepted. It is unnecessary to state this part of the case more fully, as this exception is not noticed in the opinion.</p> <p>It further appeared, that the supreme court for the county of Franklin, at the January term, 1870, upon the petition of G. A. Kimball and others, citizens of Fairfax and Georgia, against the towns of Georgia, Fairfax, Fletcher, Cambridge, and Waterville, by consent of parties, discontinued the unconstructed portion of said highway ; that when the same -was discontinued, about one half of the portion thereof laid in Fairfax, had been built, and that as built it was of no benefit to the town of Fletcher, but did accommodate a local neighborhood travel in Fairfax.</p> <p>It also appeared that no money was expended by the town of Fairfax in building said road, except the $1,153, expended in building the bridge as aforesaid, and the money expended by the' commissioner as aforesaid.</p> <p>The defendant insisted that the expense incurred in building the bridge, was barred by the statute of limitations, and that the plaintiff could recover no part of the expense incurred by the commissioner; that these expenses were not incurred in pursuance of the original order, and that the discontinuance of the road as aforesaid vacated all orders assessing the defendant town to contribute towards the building thereof.</p> <p>The court, pro forma, overruled all these claims of the defendant and rendered judgment for the plaintiff; to which the defendant excepted.</p> <p>The assessment of one fifteenth of the expense of building the road, was a proceeding in the nature of a tax upon the town of Fletcher. The primary duty of building the road was upon Fair-fax ; and in order to perfect a cause of action against a town not on the line of the road, to pay towards the expense of building it, every step pointed out by the statute must be strictly pursued. There is no privity of contract between plaintiff and defendant, only by force of the judgment of the supreme court in Lamoille county ; and hence, the defendant, being under no duty to build the road, and under no obligation to contribute until the road is built pursuant to the same judgment creating its liability, cannot be charged with the payment of money asssessed upon Fairfax by the judgment of any other court, or expended by Fairfax under any other authority, or in any other manner.</p> <p>The plaintiff is compelled to show its own wrongful and criminal' act in order to prove a liability on the defendant. Nemo allegans turpitudinem suam aüdiendus est. The defendant cannot be held to pay a portion of a fine Royce, J., in Slate v. Fletcher, 13 Vt.124, 128. It is claimed by the plaintiff that tho imposition of the fine was a mode of enforcing the order of court to build the road. If so, it is believed that this is the first instance in which the grand jury have ever exercised the right of granting a writ of mandamus. The fine is payable to the state treasurer, and under certain circumstances. may be expended on other roads. The whole legislation on the subject, shows that this criminal proceeding is instituted for the punishment of a criminal neglect; and being so, a court of law will not aid a party whose cause of action is grounded in the illegality of his own conduct.</p> <p>If the expense incurred by Fairfax in the building of this road can be disintegrated, the sum of $>1,1/53 expended in building the bridge is outlawed.</p> <p>The consideration of the assessment upon Fletcher, is the benefit to accrue from opening a thoroughfare to Georgia depot. This implies that the road be opened, before any liability to contribute becomes fixed. Indeed, the expense of the whole road must be ascertained before it can be determined what Fletcher’s one fifteenth will be. The building of the whole road, and its opening for public travel in the mode pointed out by statute, are conditions precedent to a recovery. As it now stands, Fletcher receives no benefit from this expenditure of money. The road is a benefit to Fairfax, accommodating a local neighborhood travel, but affords no facilities for Fletcher to reach Georgia depot.</p> <p>The discontinuance of the road gives Fairfax no rights as against the defendant, but vacates all orders assessing contiguous towns ; and if Fairfax had any equities growing out of her expenditures, either voluntary or compulsory, she should have looked after them when the question of discontinuance was pending. By consenting to the discontinuance, she waived all claim for contribution.</p> <p>The obligation resting upon a town in the vicinity of a town in which a road is laid, to contribute toward the expense of building such road, does not rest upon any express or implied promise, but is a legal obligation created by statute. The road having been established, and the town in which it is laid out having built it, the obligation resting upon the town ordered to contribute, became fixed.</p> <p>The discontinuance of the road, particularly after the plaintiff had expended the money for which it seeks to recover, in the execution of the original order establishing the road, cannot affect the plaintiff’s right of recovery. The order of the court establishing the road, is a judgment, has never been reversed or annulled, and the plaintiff is entitled to the full benefit of it, to the extent of the expenditure made by the plaintiff. The subsequent discontinuance of the road is a new, distinct, substantive proceeding, which does not disaffirm the former proceeding, but, on the contrary, assumes and acts upon it as a valid proceeding. Kent v. Wallingford, 42 Yt. 651; Harrington v. Comrs. of Berkshire, 22 Pick. 263 ; Halloek et als. v. Inhabitants of County of Franklin, 2 Met. 558 ; Harding v. Medway, 10 Met. 465 ; Londonderry v. Peru, 45 Yt. 424.</p> <p>The fact that the portion of the road built, was of no benefit to Fletcher, can not affect the plaintiff’s right of recovery. That question had been settled by the court establishing the road, and is conclusive upon the parties. Londonderry v. Peru, supra. Whatever consideration ex aequo et bono there might be; was all determined and fixed by the order of court ordering the defendant to contribute one fifteenth, and can not be revised by any court. This order was a part of the judgment establishing the road, and was, of course, made in the contemplation of the contingency of a discontinuance. And bringing the suit in assumpsit, does not let in any consideration ex aequo et bono. The right to maintain this or any other form of action, in this case, is not founded upon an express undertaking or promise of the defendant, nor upon a promise conclusively presumed by law from the existing relations proved between the parties, such as the case where the plaintiff waives a tort and brings assumpsit. But the obligation to contribute is created by statute, and fixed by the order of court, and the liability of the defendant does not arise from any promise, but is imposed upon the defendant without any promise, and in spite of its refusal. Brookline v. Westminster, 4 Yt. 224; Central Bridge Corp. v. Abbott, 4 Cush. 473.</p> <p>The plea of the statute of limitations can not avail. It was the duty of the plaintiff, as was decided in Brookline v. Westminster, supra, to build the road ; and the amount for which it could, under the order of court, call upon the defendant to contribute, could not be determined until the road was built, or until the amount expended before discontinuance, was determined. This duty upon the plaintiff was an entire duty; the bridge was a part of the road, and the expense of building it can not be separated from the expense incurred upon the rest of the road ; and the plaintiff’s claim is subject to the same rules that govern the application of the plea of the statute of limitations to an entire contract. Wells v. Gibson, 7 Barr, (Penn.) 154.</p>

Beplevin for a wagon. Trial by the court, September term, 1874. The defendant avowed the taking as highway surveyor of district No. 7 in Bakersfield, under a rate-bill and warrant for the collection of a highway tax assessed on the grand list of 1873, as made and returned by the listers, and not as altered by the equalizing committee of the legislature at the session of 1870, by adding 30 per cent.

Book account. The plaintiff’s account was for goods and merchandise sold and delivered on the 10th of April, 1871. The first item of the defendant’s account was for butter delivered on October 20, 1868. The auditor reported the following facts : “ In January, 1868, Henry L„ Samson, one of said bankrupts, was carrying on a confectionery or candy store in St. Albans, under the name of Henry L. Samson & Co., of which business he was the sole owner.

Trustee process. Philip Sheltus, still living, conveyed his farm and personal property thereon to the trustee, his son-in-law, who was living upon and carrying on the farm, “ reserving the occupancy of said granted premises, and the right of the control of the same, with the personal property thereon, during my natural life; to be governed as per a mortgage given me this day, of the same property, by the said Spear.” Said mortgage was conditioned for the support of the said…

Book Account. The court, at the September term, 1874, Royce, J., presiding, rendered judgment on the report for the plaintiff, for $2.59 damages; to which the defendant excepted. The case appears from the opinion. cited Chit. Cont.

Book Account. The auditor reported as follows : “ The plaintiffs are a firm located and doing business as wholesale dealers in dry goods in Albany, New York. The defendant was a merchant residing and doing business in North Hero.

Trespass qua. clau. Plea, tlie general issue, and trial by jury, December term, 1874, Pierpoint, Oh. J., presiding. It was conceded that the defendant Palmer had the legal title to lot No. 54, in the first division of lands in Lincoln, in the county of Addison, and that he and his grantors had been in possession of the same for more than forty years. The defendants claimed that the land in dispute was part of said lot.

Debt on Award. Plea, the general issue, and notice of special matter. Trial by the court, December term, 1874, Pierpoint, Ch. J., presiding.

Demurrer to the bill for want of equity. The court, at the September term, 1874, Wheeler, Chancellor, sustained the demurrer, pro forma, and dismissed the bill with costs. Appeal by the orators. The case is fully stated in the opinion. The orators are the family of Maranville — have no other homestead — and are entitled to a homestead in the premises in question. The conveyance from Maranville to Curtis was wholly inoperative to convey the homestead.

Assumpsit. The case was referred, and the referee reported the following facts: “ The plaintiff was hired by one Strange, the defendant’s prudential committee, to teach school in said district for three months, commencing November 27, 1871.

Case for damages occasioned by the insufficiency of a bridge. Trial by jury, September term, 1874, Wheeled, J., presiding.

Petition for laying out a highway in the defendant town. Commissioners were appointed, who decided that the highway ought to be laid out.

Howe. The plaintiff presented a claim against said estate on a probate bond signed by the intestate as surety for one John Howe, administrator de bonis non of the estate of Tilly Gilbert. 'The commissioners allowed the claim at $2,000, the full penalty of the bond, and their report was returned to the probate court for the district of Eairhaven, and approved and recorded. No other claim was presented against said estate.

Replevin for a quantity of liquors. Plea, not guilty, and notice of special matter in justification. Trial by the court, September Term, 1874, Wheeler, J. presiding. The writ was dated and served the 26th of February, 1874.

Trover for a wagon. Plea, the general issue, and notice of justification as collector of taxes of the town of Pittsford. Trial by jury, March term, 1874, Wheeler, J., presiding, and verdict for the defendant.

Trustee process. The commissioner found that the trustee Graham owed the principal defendant at the time of the service of the writ upon him, $56.18 for intoxicating liquors contracted for in the state of New York, where the sale of such liquors was lawful.

The bill alleged that the said Wyman Flint, J. G. Flint, W. H. Johnson, George H. Babbitt, John C. Barnes, acting as the agent of the said William F. Barnes, deceased, and S. O. Dearborn, W. L. Van Alstyne, and Lyman Bennett, in November, 1867, had agreed together to purchase a marble quarry in Rutland, and to organize themselves into a corporation for the purpose of working the same; that in said month, the orators, with the exception of the Eureka Marble Company, had…

This was a petition under § 65, ch. 24, of the Gen. Sts., to compel the defendant towns to contribute to the expense of putting a certain highway in the plaintiff town, laid out by the county court, in repair. The commissioners made the following report: “ We find that the highway in question was laid out and established as set forth in said petition, and is wholly in the town of Jamaica, and is about three miles in length.

Trover for a yoke of oxen. Plea, the general issue, and trial by jury, September term, 1873, Barrett, J., presiding. Held: to which the defendant objected as being in fraud of his other creditors; but upon further importunity by the plaintiff, finally did do so, and the plaintiff endorsed the amount thereof on the defendant’s obligation for the oxen; that on the next day, the plaintiff sued out a writ of attachment against the defendant, upon this and…

General Assumpsit to recover for a certain quantity of spruce and hemlock lumber. Trial by jury, September term, 1873, Barrett, J., presiding.

Trespass and trover for a horse. Plea, the general issue, with notice of justification under a writ of execution. Trial by jury, September term, 18T8, Barrett, J., presiding. The levy was made by leaving a copy in town clerk’s office, and the defendant proceeded legally in the levy and sale.

<p> Claims not Presented to Commissioners. </p> <p>The prosecutor presented a note against the estate oí which the defendant G. was administratrix, which was allowed. He had another claim against the estate which he did not present. G. presented a claim in favor oí the estate against the prosecutor, in offset to the note; but they then agreed to have a further accounting, and the claim G. presented was left to be equitably adjusted between them, in consequence oí which, the commissioners did not report it to the probate court. Held, in an action upon G’s administration bond, assigning the non-payment ol the sum allowed on said note as a breach, — G. not having deemed it necessary to commence an action upon the claim so presented by her, by attachment, or otherwise, — that such claim was barred, and could not be allowed in offset in the suit on said bond.</p> <p>Held, also, that the claim which the prosecutor did not present, was barred.</p>

<p>Trover for a wagon. The case was referred, and the referee made tbe following report:</p> <p>“ Asahel P. Squires, a brother-in-law of tbe plaintiff, had, previously to 1868, resided in Stanstead, Canada, where the defendants then resided and now reside, and while residing there, he was unfortunate in the loss of property by fire, and became financially involved. In the summer of 1868, he leased a hotel in Colebrcok, N. H., and as the hotel received most of its patronage from summer boarders from cities and elsewhere, it was indispensable to success that a livery should be kept with it. Not having means to purchase the necessary carriages for running a livery, he applied to the plaintiff, who let him have eight hundred dollars to lay out in carriages, and the carriages were to be the plaintiff’s property. Squires purchased carriages to the amount of the eight hundred dollars, or nearly that, and used them in his livery until snow fell in the fall of the year. In December, Squires having-disposed of his lease of the hotel in Colebrook, the plaintiff gave him a power of attorney to dispose of the property purchased with the money furnished by him. Squires sold all the carriages except the one in controversy, and accounted to the plaintiff for the proceeds. The wagon in controversy was taken by Squires to Canada, for the purpose of effecting a sale of it there. He took it to Ooaticook, and left it at the hotel of Stephen Davis in the care of one William Webster. On the 25th of June, 1869, the wagon was seized in the possession of said Webster, garnishee, by process duly issued in the circuit court in and for the county of Stanstead, in the District of St. Francis, and Province of Quebec, and such proceedings were had that judgment was rendered in said court in favor of the defendants in this case against the said Squires, and on the 11th day of February, 1871, a writ of venditioni exponas issued, upon which said wagon was sold on the 8th day of March, 1871, by George Eogers, bailiff, and the proceeds of the sale applied on said judgment. Copies of the proceedings of said circuit court were offered as evidence by the defendants, to the reception of which the plaintiff objected, but they were received. The 'plaintiff objected for the reason that the judgment and proceedings were not pleaded in bar of this suit, as well as for any and all cause of objection.</p> <p>“Joseph Lee Terrill, of Stanstead, an advocate and attorney practicing in Canada, testified that from his personal knowledge, and from the inspection of the copies of the record above referred to, the proceedings relating to seizure and sale of said wagon were correct, and in accordance with the laws of said province. I therefore find that the said seizure, judgment, and sale, were lawful and final as between the parties to that suit. The said' Terrill also testified with regard to the service of writs, that the law required that the writ be served personally upon the defendant, or at his domicil, if he has one, and if he has no domicil, and if he lives beyond the jurisdiction of the courts, in a foreign country, by advertisement of a rule granted by the clerk of the court in vacation or by the judgu in term time; that service under a rule calling in the party by advertisement, has the same effect after default as personal service has; that a default may be removed by special application to the court, supported by good grounds, at any time before judgment, but not after, if rendered by a judge in term; that the records show that the wagon was properly ordered to be turned over to the bailiff to be sold, properly seized by the court, and properly advertised by the bailiff, and by him properly sold. Q. by defendants’ counsel. ‘ Gould McDougall Brothers, after seizure and disclosure of the garnishee, have legally delivered the wagon to any third person claiming to own it ? A. They could not. Q. Why not ? A. I think the copy of the writ of saisie arret in this cause, is sufficiently explicit to answer this question; that the property being in the hands of the court, could not be disposed of in any way except by order of the court, and when disposed of by order of the court, as the papei’s in this case show, was conclusive upon all parties. The proceedings settle the title. All persons having any interest in property seized, are bound, by our laws, to appear by intervention, meaning a petition presented to the court by the party claiming ownership and seeking the setting aside of the seizure, at any time before issuing the writ for selling the property, or by an opposition in writing, sworn to by the claimant or his agent, and served upon the officer in charge of the writ, at any time prior to the sale, and in no other manner can the property seized be released or the sale thereof stayed. There is a provision in the law by which parties claiming to have an interest in the property, may claim their interest, or a portion thereof, saving the costs and expenses of the case, by delivering to the officer who effects the sale, an opposition sworn to by the claimant or his agent, at any time prior to the delivery of the money to the plaintiff. If the claimant does not interfere by intervention or opposition in the manner stated, the law of Canada leaves the title to the property where the court places it, and discharges the party in whose interest the sale is made, from liability to any person whatever.’ I find the law and practice of the courts in the Province of Quebec to be as testified to by said Terrill, and that the plaintiff is estopped from any remedy in Canada courts. I further find that the plaintiff was notified by Squires of the seizure of said wagon, and that he had time and opportunity to have asserted his claim under the laws and practice of said courts.</p> <p>“ While I find that said wagon was, in fact, the property of this plaintiff, the evidence disclosed that Squires was accustomed to call it and the other carriages of .the plaintiff, his property ; that on repeated occasions while trying to sell the wagon in Canada, he called it his, and that he so called it to the garnishee and others when at the hotel of said Davis in Coaticook, and he told Hollis McDougall on this occasion, while trying to sell said wagon, that the wagon was his, and offered to sell it him and deduct the sum he owed McDougall Bros, from the price of the wagon. The plaintiff, who then resided in Athol, Mass., paid very little attention to the property, never in fact having seen it. Having full confidence in Squires, he allowed him, under the authority of said power of attorney, and a previous one of more limited authority which was not produced, to do as he pleased with the property, not doubting but he would account to the plaintiff for the profits of the livery, which was run in the plaintiff’s name, and for the proceeds of the carriages sold, or pay him the eight hundred dollars, and T 3-10 per cent, interest thereon, which was all the plaintiff required. The plaintiff, by said Squires, made a demand of said wagon after seizure and before suit brought.</p> <p>“ If from the foregoing facts the plaintiff is entitled to recover, I find that the wagon was worth $125, and that the plaintiff is entitled to recover that sum, with interest from the 25th of June, 1869, the time of the seizure, amounting to $153.37.”</p> <p>The court, at the April term, 1873, Barrett, J., presiding, rendered judgment on the report for the defendants, pro forma ; to which the plaintiff excepted.</p> <p>The referee finds that the wagon was the property of the plaintiff at the time of the seizure and conversion by the defendants. Copies of the said proceedings in the Canadian court were offered and admitted by the referee, under the objection of the plaintiff that they were not pleaded in bar of this action. We claim that the referee should have excluded this evidence. Gen. Sts. ch. 30, § 32, ch. 33, § 15.</p> <p>Upon the facts found, that the property belonged to the plaintiff at the time of its seizure and conversion, and that he was not and never had been a resident citizen of Canada, it is insisted that the seizure and conversion, under the proceedings instituted, were in violation of a well-established principle of the common law. “ No sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit, is a mere nullity, and incapable of binding such persons or property in any other tribunal.” Picquet v. Swan, 5 Mason, 35 ; Story Confl. Laws, ch. 14, § 539. In Buchanan v. Bucher, 9 East, 192, Lord Ellenborough says: “ The Island of Tobago could not provide by law that nailing up a summons on the court house door, should be obligatory upon defendants who were subjects of other countries.” In Bissell v. Briggs, 9 Mass. 461, Parsons, Ch. J., decided, that in order to entitle a judgment rendered in any court in the United States, to full faith and credit, the court must have had jurisdiction not only of the cause, but also of the parties. We insist that, to entitle any foreign judgment to recognition in another country, it is indispensably necessary that the court pronouncing the judgment should have jurisdiction over the cause, over the thing, and over the parties. Story Confl. Laws, ch. 15, §§ 585, 586, 588. If the jurisdiction fails as to either, it is treated as a mere nullity, having no obligation and entitled to no respect beyond the domestic tribunals; and this is equally true, whether the proceedings are in rem or in personam, or both. Story Confl. Laws, supra; Buchanan v. Bucher, supra; Bissell v Briggs, supra; Shumway v. Stillman, 6 Wend. 447 ; Woodward v. Tremeré et al. 6 Pick. 354; Hall v. Williams, 6 Pick. 232; Ferguson v. Mahon, 11 A. & E. 179 ; Boston India Bubber Factory v. Hoit, 14 Yt. 92; Woodruff v. Taylor, 20 Yt. 65; 2 Parsons Oont. 120, and cases cited. In proceedings in rem, it must appear that the parties in interest had notice, and an opportunity to appear and defend their interests. Proceedings by creditors against the personal property of their debtor in the hands of third persons, or against debts due to him by such third persons (commonly called the process of foreign attachment, or garnishment, or trustee process), are also treated as in some sense proceedings in rem, and entitled to the same consideration. In this last class of cases, it is to be borne in mind that to make any judgment effectual, the court must possess and exercise a rightful jurisdiction over the res, and also over the person so far as the res is concerned, otherwise it will be disregarded. Story Confl. Laws, ch. 15, § 592.</p> <p>The fact that the plaintiff allowed Squires to do as he pleased with the property, that the latter called it his, and offered to sell it to the defendants and turn it on their debt against him, does not impair the title thereto which the power of attorney shows, and the referee finds, to be perfect in the plaintiff. Squires did not please and did not consent that the property should be taken by this process to pay his debt.</p> <p>Counsel for the plaintiff insist that exhibits numbered from 1 to 12 inclusive, offered in evidence on the trial, by the defendants, were improperly received by the referee, for the reason “ that the judgment and proceedings (evidence by said exhibits) were not pleaded in bar of this suit, as well as for any and all cause of objection.”</p> <p>We understand the rule of law to be well settled by repeated adjudications in this state, that the defendant may interpose any defence to the plaintiff’s right of action, before the referee, that he could interpose if the case were on trial in the county court, under any form of pleading that would be an appropriate answer to the alleged cause of action, and that the entire cause is to be tried upon its merits, and not upon any particular issue made by the pleadings. Eddy v. Sprague, 10 Yt. 216 : Clifford v. Richardson, 18 Yt. 620 ; Hicks v. Cottrill, 25 Yt. 80 ; Briggs v. Oakes et al. 26 Yt. 138 ; Fulton v. Wiley, 32 Yt. 762 ; Cook v. Carpenter et al. 34 Yt. 121; Carter v. Howard, 39 Yt. 106 ; Howard v. Black, 42 Yt. 258. Again, we contend that the question as to whether the referee erred in admitting said copies of record, is not properly before this court, inasmuch as no exceptions were filed by the plaintiff in the court below to the report, but only to the judgment upon the report.</p> <p>We understand the rule of law to be, that where the real objection is that the referee received improper testimony, the question should be raised by counsel in the county court, the attention of the court should be called to it by a special exception, or a motion to recommit, and the record should show affirmatively that it was insisted on in the county court, and was determined against the excepting party. Q-eorge v. School District, 20 Yt. 495 ; Amidown Co. v. Osgood et al. 24 Vt. 278 ; Perry v. Whitney, 30 Vt. 390 ; Johnson, admr. v. Dexter, 37 Yt. 64; Gfraham v. Stiles, 38 Yt. 578.</p> <p>Conceding the fact to be as found by the referee, that the plaintiff really owned the wagon in controversy: still, we insist that the plaintiff should be held bound by the acts and representations of Squires in the premises. The plaintiff permitted Squires to take this wagon into a foreign country, among Squires’s individual creditors, and to offer it in payment of his individual debts, to treat it as his own, to call it his property — in short to do with it as he pleased. If then the plaintiff through the agency of Squires, induced the defendants to do what they did in the way of collecting their debt of Squires, and in so doing this wagon was seized and disposed of in the manner detailed, then we say, as against the defendants, the plaintiff has no remedy, and ought not to have.</p> <p>The case shows that the plaintiff had timely notice of the proceedings then pending in the courts of Canada, and did not, either by himself or his agent Squires, interpose ; that in consequence of the false representations made by Squires as to his absolute ownership of the property, without disclosing that he was there in the capacity of an agent for any one, or for any purpose, these defendants have been put to great trouble and expense and have suffered serious injury. This being so, that under all the circumstances of this case as detailed in the bill of exceptions, the plaintiff should be held implicated to the fullest extent in whatever Squires said or did, and should be unconditionally bound by his declarations. Story Agency, §§ 91, 93,127, note 2 ; Fitzsimmons v. Joslin, 21 Yt. 129 ; Barber v. Britton Sg Hall, 26 Yt. 112; Burt v. Palmer, 13 Petersd. Abr. 513 ; Peto v. Hague, lb. 518; Pickard v. Sears et al. 6 A. & E. 469 ; Cady v. Owen, 34 Yt. 598.</p> <p>If plaintiff is estopped in Canada, by the proceedings of the court there, he has no remedy here. The trustee or garnishee process was wholly unknown at common law; it is a proceeding authorized and regulated by statute, and is in a certain sense a proceeding inrem. Huntingtons. Bishop ¿f* Tr. 5 Yt.l8o; Woodruffs. Taylor, 20 Yt. 65 ; Story Confl. Laws, § 592 a. “ A nation within whose territory any personal property is actually situate, has as entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there.” “ Whatever the court settles as to the right or title, or whatever disposition it makes of the property by sale, revendication, transfer, or other act, will be held valid in every other country where the same question comes directly or indirectly in judgment before any other foreign tribunal.” Story Confl. Laws, §§ 550, 591, 592, 592 a, 593 ; Bissell s. Briggs, 438, supra; Hull s. Blake, 13 Mass. 152 ; Woodruff s. Taylor, supra. The referee finds, that under the laws of Canada, Squires had such notice by virtue of the proceedings in their courts, as to make the judgment lawful and conclusive everywhere as to him. In law, the principal and agent are considered one and the same person, and therefore notice to the agent is notice to the principal. Caldwell v. Ball, 13 Petersd. Abr. 511; Fitzherbert v. Walker, lb. 514. This being so, the courts of this state will leave the title to the property in controversy where the court, within whose jurisdiction the property was situated, placed it.</p>

Trespass qua. clau. The case was referred, and the referee made the following report: “ The plaintiff owned the northerly portion of lot No. 9 in the third range of lots in the town of Stratton, having purchased said lot on August 14, 1869. C. O. Holden then owned lot 10 in the same range, lying northerly of and adjoining lot 9.

This was a grand juror’s complaint for being a manufacturer of intoxicating liquor contrary to § 18, ch. 94, of the Gen. Sts. The complaint was in the form prescribed by § 28 of said chapter. Plea, not guilty, and trial by jury, September term, 1878, Barrett, J., presiding.

Plea, that the last legal settlement of the said Joseph was not in the town of Wardsboro. Trial by the court, April term, 1873, Barrett, J., presiding.

Trespass de bonis. The case was referred, and the referee reported the following facts. The plaintiffs were married September 5th, 1868. The plaintiff Mary»A. White was a daughter of Charles B. Colman, who died in 1867. When married, the plaintiffs lived in Woodstock in this state. After the marriage, the said Mary received in money and articles of personal property from her father’s estate, $1,122.33, less the revenue tax.

Trover for a heifer. Pleas, the general issue, and justification under process. The case was referred, and the referee reported the following facts: “ The plaintiff resided in Gardiner, Mass., in 1868, and his parents, George T. and Abby Allen, then resided in Williamsville, in Newfane. In the spring of 1868, the plaintiff visited his parents, and at that time his father gave him a calf not more than a week old.

Case for injury to the wife on a highway. Plea, the general issue, and trial by jury, April term, 1874, Barrett, J. presiding. The plaintiffs offered in evidence the following written notice: “ Guilford, Dec. 30th, 1871. Sirs : — I am under the necessity of calling your attention to an accident that happened on the Green-River road on Friday, the 22d inst., in consequence of a defect in the highway.

General assumpsit. Plea, the general issue, and notice. Trial by jury, September term, 1874, Barrett, J., presiding. The plaintiff claimed to recover $13.60 paid by him to one Donaldson, the defendant’s tax collector, on a tax assessed against the plaintiff on his list of 1871, of personal property only. It was agreed that the tax was lawfully assessed and collected, if the plaintiff was a ratable inhabitant of the district on the 1st day of April, 1871.

<p> Action. Parties. </p> <p>In assumpsit on a policy oí life insurance in favor of the administrator of the insured, the declaration alleged a consideration moving from the insured, and a promise to" pay the wife and children of the insured, or their legal representatives. Held, that the action could not he maintained in the name of the administrator.</p>

Case against the defendant as a common carrier, for damage in transporting apples from Batavia, N. Y., a station on the line of what was formerly the New York Central Railroad, to Boston, Mass. Plea, the general issue, and trial by jury, April term, 1874, Barrett, J., presiding.

Trespass, founded on § 3, No. 4, of the Acts of 1869.* Plea, not guilty, and trial by jury, April term, 1874, Barrett, J., presiding.

Case in three counts, with a count in trover, for certain United States bonds. Plea, the general issue, and trial by jury, April term, 1874, Barrett, J., presiding.

Ejectment for lot No. 9, in the 9th range in Weston. Plea, the general issue, and trial by jury, May term, 1873, Barrett, J., presiding. The plaintiff introduced a quit-claim deed of said lot from Edward Simonds to the intestate, dated April 14, 1814, and recorded the 18th of said April, but gave no other record evidence of title either in Simonds or the intestate.

Book Account. The 5th item of the plaintiff’s account was for his son’s work for the defendant from April 9th to August 6th, 1872, at 117.50 per month, 168.58. As to this item, the auditor reported the following facts : “ George Bond, the plaintiff’s minor son, early in April, 1872, by the consent and approbation of his father, applied to the defendant to let himself to him to labor on the defendant’s farm the then coming season.

Replevin for divers wagons, sleighs, carts, harnesses, and farm implements, including a safe and platform scales. Plea, not guilty, and avowry of the taking by the defendant as deputy sheriff, on the 22d of May, 1872, by virtue of a writ of execution against the said Henry. Trial by the court, May term, 1874.

Assumpsit, commenced before a justice of the peace, where judgment was rendered against the defendant by default, and the trustees adjudged chargeable upon their disclosure for the amount of the judgment. The claimant appeared before the justice and appealed. The appeal was entered at the December term, 1872, judgment against the defendant affirmed, and a commissioner appointed, whose report was filed at the December term, 1873. The claimant filed no allegations.

Case for injury to the wife on a highway. Plea, the general issue, and trial by jury, December term, 1873, Barrett, J., presiding.

Ejectment for land in Ludlow. Writ dated November 15, 1871. Eviction laid April 1, 1871. Plea, the general issue, and disclaimer of the principal part of land described in the declaration. Trial by jury, May term, 1873, Barrett J., presiding.

<p> Pleading. Threatening Letters. </p> <p>Threats of bodily hurt which occasion such interruption or inconvenience as to produce pecuniary damage, are actionable. A mere vain fear is not sufficient; it must be founded upon an adequate threat.</p> <p>A count which only alleges that the defendant threatened the plaintiff with great injury, without any allegation of accompanying circumstances known to the defendant, which would render the plaintiff less able to withstand such threat than persons of ordinary firmness, is not sufficient.</p> <p>A count which alleges that the defendant, intending to frighten, terrify, and injure the plaintiff, threatened to imprison the plaintiff, or to cause the plaintiff to be imprisoned, and that by means thereof the plaintiff was frightened, terrified, and made sick, and rendered unable to attend to her usual business, and perform her usual work, and was thereby put to great expense, and made to suffer loss,^-is sufficient.</p> <p>In ease for threats made by letter, it is not necessary to set out the words in which the threats were made, but only the substance of the threat.</p>

Audita Querela to set aside a júdgment by default against the complainants in favor of the intestate, rendered at the May term, 1859, without personal notice to the complainants, or either of them, and without recognizance for review, upon which judgment the defendant had brought suit against said Godfrey, which was pending.

Trespass for assault and battery and getting plaintiff with child. With the service of the writ, notice was given to the defendant that no settlement or other adjustment of matters pertaining to the suit, would be valid unless made with the plaintiff’s sole agent and attorney whose name was endorsed on the writ and copy. Pleas, the general issue, and settlement with the plaintiff after suit commenced.

Trover for ten turkeys. Plea, not guilty, and trial by jury, December term, 187-3, Barrett, J., presiding.

Assumpsit. The declaration contained the general counts, and a special count on a contract for prosecuting defendant’s claim against the government for a pension as a disabled soldier in the Rebellion, alleging that the plaintiff was not at the time when, &c., a pension agent. Pleas, the general issue and offset.

Case. The writ was returnable before a justice on December 5th, 1871, when the case was continued to the 8th of January, 1872, without the knowledge or consent of the defendant, and without the justice being present with the writ at the place appointed for trial.

Debt on judgment. The defendant Gile pleaded specially, “ That the said pretended judgment in said declaration mentioned, is based upon a note which was executed by said defendants by merely signing the same, and by them retained in their possession, and was made payable to said plaintiff, but was never delivered, and was never to be delivered nor collected, unless the amount of said note should be realized from the sale of a certain patent, for or about which said note was…

Assumpsit on a receipt for fifty white bed blankets, returned as attached by the plaintiff as sheriff, on a writ against the said Ward. Plea, the general issue, and trial by the court, May term, 1873, Barrett, J., presiding.

General Assumpsit, with counts for board and lodging, and the hire of horses and carriages. Pleas, the general issue, accord and satisfaction of the board and lodging and hire of horses and carriages, and offset.

<p> Master and Servant. </p> <p>Defendant put a bag containing barley into his wagon under his shed. In two or three days thereafter, his hired servant took the bag from the wagon, supposing it to contain oats, and carried it to a place where he was drawing logs for his master, to feed his horses with its contents. Rinding his mistake, the servant fed some of the barley, and then put an iron bolt that he had been using as a device pin, into the bag, and carried the bag home and put it into the wagon where ho found it, with the barley and bolt in it, without informing his master of what he had done. Soon after, the defendant, not knowing what his servant had done, nor that the bolt was in the hag, filled the bag with ears of corn, and carried the corn to plaintiff’s mill, to be ground, and in grinding, the bolt got into the corn-cracker and injured it. Held, that defendant was liable for the carelessness of his servant.</p>

<p>Appeal from a decree of the probate court for the district of Windsor, charging the plaintiff, a son of the intestate, with an advancement of $2,000 towards his share of his father’s estate. Trial by jury, May term, 1873, Barrett, J., presiding, and verdict for the plaintiff.</p> <p>The issue raised and tried was, whether the intestate cancelled and annulled said advancement in his lifetime. The intestate died on April 10, 1870, leaving Mary Wheeler, his widow, and Peter P. and Daniel H., his sons, and Mary Louisa Merrill, wife of Bailey W. Merrill, his daughter. On the 12th of February, 1848, the intestate gave the plaintiff $2,000 as an advancement, and took the plaintiff’s receipt therefor of that date, whereby the plaintiff acknowledged the receipt thereof “ towards my portion.” The plaintiff introduced the deposition of the said Mary Wheeler, who testified that she knew her husband had a receipt against the plaintiff for $2,000, given for money as she supposed ; that her husband gave the receipt up to the plaintiff some fourteen or fifteen years before, at their house in Cavendish ; that the plaintiff read the receipt at the time, and she thought she did, and that plaintiff burned it by his father’s direction. The defendant objected to the introduction of this deposition, on the ground of its incompetency to annul said advancement; but the court overruled the objection, and admitted the deposition ; to which the defendant excepted. The plaintiff introduced one Chase as a witness, whose testimony tended to show that in 1859, the intestate told him that the plaintiff had been very kind to him ; that he depended on plaintiff to assist him ; that ho had given plaintiff something handsome, and should give him more if he did well for him. The plaintiff also introduced one Dutton as a witness, whoso testimony tended to show that when at work for the intestate in 1856, intestate told him he had advanced some money to his children and taken a writing for it, not a note ; that the plaintiff was a good-boy, and he depended on him for help ; that in 1868, intestate told witness he had made plaintiff a present of the writing he had against him, the one of which he spoke when witness was at work for him. The plaintiff also introduced one Bates and one Pratt as witnesses, whose testimony tended to show that the intestate told them in 1865 that he was going to do well by the plaintiff; that he supposed he had a right to give plaintiff his farm ; that he once had claims against plaintiff, .but had none then. The plaintiff introduced other witnesses whose testimony tended to show similar statements of the intestate. The defendant objected to all the testimony thus introduced, but the court overruled the objection, and admitted the testimony; to which defendant excepted. Mrs. Merrill was a witness’ for the defendant. The defendant offered her husband as a witness, to whom the plaintiff objected, and the'court excluded him ; to which the defendant excepted. For the purpose of impeaching the testimony of Mary Wheeler, the defendant offered to show by one Gilson, that the intestate told him in 1869, in presence and hearing of the said Mary, that he had given his two sons $2,000 each, towards their portion of his estate, and then held their receipts for the same, and that he intended his children should share equally in his property. The plaintiff objected to the testimony, and the court excluded it; to which the defendant excepted.</p> <p>It is claimed in behalf of the estate, that no evidence was admissible on the part of the appellant, unless it tended to prove an intent of the intestate to change the character of the $2,000 from an advancement to an absolute gift, if it be conceded that the intestate had the legal right to do so, which may be questioned. After he had once made the advancement, he could not recall or avoid it. 2 Red. Wills, 908 ; Gilbert v. Wilherel,. 2 Sim. & S. 254; Olark v. Warner, 6 Conn. 360. The testimony of Chase, Bates, and Pratt, - had no tendency to prove that the intestate intended to give up said receipt, and change the character of it from a qualified gift to an absolute one. The admission of such a class of testimony would be very apt to mislead a jury. 1 Greenl. Ev. § 448 ; Hatch v. Straight, 3 Conn. 34.</p> <p>The testimony of Gilson was clearly admissible for the purpose for which it was offered. 2 Phil. Ev. 262 ; Downer et. al. v. Dana et al. 19 Yt. 338 ; Robinson v. Hutchinson and wife, 31 Yt. 443 ; Lindsay and wife v. Danville, 45 Vt. 72.</p> <p>Was not Merrill a competent witness ? His wife is not, technically, a party to this suit, although interested. Lindsay v. Danville, supra; Railway Go. v. Lincoln’s Hst. 29 Yt. 206 ; Robinson v. Hutchinson, supra; Carpenter v. Moore et als. 43 Yt. 392 ; Acts of 1863, p. 20.</p> <p>The objection' made to the deposition of Mary Wheeler, is, that being the widow of the intestate, she is an incompetent witness. This objection is not well founded. Her interest in the estate, or in this suit, works in her no disqualification as a witness. Gen. Sts. ch. 36, § 24. The fact of coverture that once existed between the deponent and the intestate, does not render the deposition inadmissible, inasmuch as it does not involve the disclosure of matters of confidence between husband and wife, nor of transactions affecting the character of the husband. 1 Greenl. Ev. § 338 ; Williams v. Baldioin, 7 Vt. 503 ; Edgell v. Bennett, 7 Vt. 534; Smith v. Potter, 27 Vt. 304; Clements v. Marston, 52 N. H. 31. The testimony of Chase, Dutton, and Pratt, was as to declarations and statements of the intestate made against his interest, and tended to support the plaintiff’s claim. The whole current of authorities is in favor of the admission of this class of testimony, whether these declarations are to be regarded as those of a party to the suit, or of a third person. 1 Phil. Ev. 300, 402; Stark. Ev. 50, 64, 65 ; Higham wife v. Bidgway, 10 East, 109.</p> <p>The court properly excluded Merrill. Carr v. Cornell, 4 Vt. 116; Stark. Ev. 39, 138 ; 4 T. R. 678 ; Crane v. Crane, 33 Vt. 15,20 ; Carpenter, exr. v. Moore et als. 43 Vt. 392. The testimony of Gilson was properly excluded. It had no tendency to impeach Mrs. Wheeler. It was an offer to prove the declarations of the intestate made in his interest, and with reference to the subject-matter of this suit, and is therefore inadmissible.</p>

<p>This was an appeal from an order of removal of one Daniel Locke, a pauper, from Baltimore to Chester. The following facts were agreed upon : -</p> <p>“ The pauper, some twelve years ago, being then of full age, removed to Chester, and married a woman who owned real estate in Chester in her own right in fee simple ; and from the time of the marriage the pauper and his wife resided in Chester, on said estate, managing it themselves. The percentage of the value of said estate, besides the pauper’s poll, was set in the list of said town to said pauper, at the sum of upwards of three dollars for five years and more in succession, and he paid the taxes thereon. The pauper and his wife resided in Chester for more than ten years from their marriage, when the wife died. The pauper, after his wife’s death, removed to Baltimore, and became chargeable to Baltimore as a pauper. The only question in the case is, did the pauper hold said real estate in his own right, within the purview of ch. 19, § 1, division 4, of the Gen. Sts'. The pauper never had any settlement in this state, unless he acquired one in Chester as above stated. The pauper had no other interest in said estate except what he acquired by virtue of the marriage.”</p> <p>Upon the foregoing facts, the court, at the December term, 1874, Barrett, J., presiding, rendered judgment, pro forma, that the pauper was unduly removed ; to which the plaintiff excepted.</p> <p>By the marriage, Locke, the pauper, acquired an estate of freehold in his wife’s real estate, for the joint lives of himself and wife : which estate, during its existence, he held in his own right. Slade’s Sts. ch. 28, §3; Rev. Sts. ch. 42, §15; Mattocks v. Stearns and wife, 9 Yt. 326, 335 ; Hyde v. Barney, 17 Yt. 280.</p> <p>This case presents only one question, to wit, has the pauper gained a legal settlement in the town of Chester, by virtue of the 4th clause of § 1, ch. 19, of the Gen. Sts ? The defendant claims that the pauper has not gained a settlement under that clause. First. Because he does not come within its terms. Second. Because the case is not within the meaning, spirit, and intent of the act. It has long since been settled in this state, that when one town undertakes to relieve itself from the support of a pauper, and to cast the burden upon some other town, it must show the case within .the exact terms of the statute — to bring it within its spirit and meaning is not sufficient. Manchester v. Dorset, 14 Yt. 224. Similar language has been used from time to time, in these pauper cases, by many other of our eminent judges. Middletovm v. Poultney, 2 Yt. 437 ; Wheeloehv. Lyndon, 6 Vt. 524 ; Gastleton v. Miner et al. 8 Yt. 209; Pawleb v. Sandgate, 17 Yt. 619 ; Sutton v. Burke, 15 Yt. 720 ; Albany v. Derby, 30 Yt. 718: Wilmington v. Somerset, 35 Vt. 232; Jaffrey v. Cornish, 10 N. H. 505.</p> <p>The statute says the pauper must hold the estate set in- the list, “in his own right.” This case finds that the pauper held the estate set in the list, in right of his icife. Dummerston v. Newfane, 37 Yt. 9 ; Newfane v. Dummerston, 34 Vt. 184.</p> <p>The case does not come within the spirit and meaning of the act. The plain meaning of the act is, that the person shall own the estate set in the list, absolutely, and a qualified ownership does not meet the requirement of the statute.</p>

Audita querela. The declaration alleged the recovery of a judgment by the intestate against the plaintiffs, by default, at the May term, 1859, of Windsor county court; that the writ in said cause was never served upon the plaintiffs, or either of them, and that neither of them ever had any knowledge of the commencement or pendency of said suit, and did not appear therein, and that no recognizance for a review was ever given therein; that said Godfrey was in the state of…

<p> Slander. </p> <p>The words alleged were the calling of plaintiffs’ children bastards. Imuendo, “meaning to insinuate and be understood that said children were illegitimate, and not born in lawful wedlock, and that the said Elizabeth [the plaintiff wife] had been unfaithful to her husband, and had not observed and kept her marriage covenants, but had been guilty of lewd and unchaste conduct, and had committed a crime under the statutes of this state.” There was no prefatory averment of any intent to charge any partieular crime. Held, that the averments did not impute crime with sufficient certainty, and that the words alleged were not, therefore, actionable per se.</p> <p>Words charging one with being a bastard are not actionable per se.</p> <p>Where the declaration contains allegations of different slanders at different times, a general allegation of special damage, “by means of the committing of which said several grievances,” is not sufficient. It must be averred from what particular wrongful act the special damage is claimed to have resulted.</p>

<p> Validity of Foreign Decree for Alimony. Divorce. </p> <p>Parties married in New York in 1831, and lived together till 1863, when the hnshand left the wife, at which time, and for at least six months prior thereto, they had resided in S. in this state. The wife subsequently preferred her complaint for divorce to the supreme court of New York, where she was then domiciled, alleging for .cause the adultery of the husband in this state while they were living here and subsequently, and setting the husband up as having had his last known residence in S., but as then being of parts unknown. Notice of said suit was given by publication in New York, and by mailing a copy of the summons and complaint to the husband at S., whence he had removed to another town in this state. The husband did not appear in said suit. Held, that said court acquired no jurisdiction of the person of the husband, and that the decree for alimony rendered by it upon granting a divorce, was not binding upon him in this state.</p> <p>Semble, that the decree of divorce was not.</p>

<p>Book account. The plaiatiff sought to recover $25 for pasturing the defendant’s sheep, and $9.69 for salt, grain, tending, &e., together with interest thereon. As the sheep had passed through a defective fence from the plaintiff’s to an adjoining pasture, and there caught the scab by mingling with diseased sheep, the defendant sought to make a charge of $80.50 for the resulting damage, as a defence pro tanto to the plaintiff’s demand. The defendant claimed, also, to have made and maintained a valid tender of $25.</p> <p>The auditor reported that on February 26,1872, the defendant bought a flock of sheep and a quantity of hay of the plaintiff and paid him therefor, and that the plaintiff agreed to take care of the sheep, or to feed them with forage and salt to be furnished by the defendant; that the plaintiff and the defendant entered into a second contract, a few days afterwards, by which the plaintiff was to pasture the sheep the ensuing season, for $25, the defendant furnishing salt; that in the spring the defendant turned said sheep with others that he had bought of one Burton, into the plaintiff’s pasture; that said pasture adjoined one owned by one Simonds in which one Edward Sargent kept during the fall a flock of sheep infected with the scab or itch ; that it did not appear whether the plaintiff knew of such infection or not; that the defendant’s sheep got into the Simonds pasture, and mingled with the sheep of said Sargent; that Sargent’s passed into the plaintiff’s pasture and mingled with the defendant’s, and that in consequence of such intermingling of the two flocks, which continued during the fall, the defendant’s sheep became infected with the scab, and depreciated $80.50 ; that the fence along the entire line between the plaintiff’s and Simonds’s pasture, was not such as the law required, but was so insufficient that the sheep might have passed it almost anywhere, over the plaintiff’s as well as over Simonds’s portion, but that he was unable to find whose portion the sheep actually passed over in their various wanderings from one pasture to the other, although on one occasion when Sargent’s sheep were in the plaintiff’s pasture, sheep tracks were seen on that part of the fence which belonged, as the plaintiff insisted, to Simonds to maintain. He also reported that when the defendant took up his sheep in the fall, two of the flock were missing, and that it did not appear what had become of them, but that there was no evidence tending to show that they were lost through any fault of the plaintiff. In regard to the alleged tender, the auditor reported that two or three days before this suit was brought, the defendant’s brother, Prosper Slack, offered to the plaintiff $25 in U. S. legal tender notes, at the defendant’s request, opening his wallet as he did so, so that the plaintiff could see the money which the defendant had furnished, and saying, “ There is $25 which Loren [the defendant] wanted me to tender to you” ; that the said Prosper soon after paid out said money, and that no money was produced at the hearing before the auditor, but that the said Prosper had at all times since the tender, had $25 to pay to the plaintiff whenever he should call for it, but whether or not U. S. legal tender notes, did not appear.</p> <p>The case was heard at the May term, 1873, and the defendant requested the court to hold that he was entitled to recover for- the loss sustained by reason of the infection of the sheep, and for the loss of the two not returned nor accounted for ; but the court, Barrett, J., presiding, declined so to hold, and rendered judgment on the report for the plaintiff; to which the defendant excepted.</p> <p>cited Jones Bailm. 128, 133 ; 1 Rol. Abr. 4 ; 1 Bl. Com. 461, n.; Colye’s case, 8 Co. 32 a; Broadwater v. Blot, 1 Holt, 547.</p> <p>cited Edw. Bailm. 45 ; Gen. Sts. ch. 104, § 7; Hall v. Adams, 1 Aik. 166 ; Town v. Lamphire, 36 Yt. 101; Phelps v. Paris, 39 Yt. 511.</p>

<p>Trespass for a yoke of oxen. The defendant pleaded the general issue, and a special plea in justification as tax collector of the town of Corinth, under rate-bills and warrants for the collection of a state, a ^tate school, and a town tax, assessed against the plaintiff on the list of 1869. Said special plea contained the requisite allegations of the liability of the plaintiff to pay taxes in said town, and of the raising and assessment of said taxes, and of the making and issuing of said rate-bills and warrants, and alleged that said rate-bills and warrants were duly placed in the hands of Joseph H. Gilman, the constable and-collector of said town, for collection'; that said Gilman did not collect said taxes of the plaintiff, but that said rate-bills remained in his hands uncollected a long time, to wit, until the 26th of March, 1870, at which time there were certain sums due from the plaintiff on said taxes ; that on that day the said Gilman became “ disabled from discharging his duties as collector, and at his request, the selectmen of said town of Corinth certified the same on the back of said warrants, and there being no other constable in said town, the said selectmen appointed this defendant to collect and pay over to the proper authorities, all unpaid taxes thereon, and put into the hands of the defendant said rate-bills and warrants,” whereupon the defendant, &c.</p> <p>The plaintiff filed two replications to said spcial plea. The first admitted all the allegations of the plea except the disability of Gilman, which it traversed, and alleged that he “ did not become disabled frcm discharging his duties as such collector, by reason of sickness or otherwise, as the statute in such cases has provided,” and concluded to the country, whereon issue was joined. The second admitted the raising and assessment of said taxes, and the making and issuing of said rate-bills and warrants, but alleged that on the first day of April, 1869, one of the listers of said town called upon the plaintiff for his list of personal property; that thereupon the plaintiff gave said lister a true list of his taxable property, together with the amount of debts he was then owing; that the property of the plaintiff thus subject to being listed, amounted to the sum of $8,648; that he owned bank stock in the Orange County National Bank at Chelsea, to the amount of $2,000, and that he was then owing debts to the amount of $6,000 ; that the said lister accepted said list so given him by the plaintiff, as and for a true list of all the plaintiff’s taxable property, together with the amount that the plaintiff was so owing; that the plaintiff was in fact owing on the first day of said April, more than the amount of all his personal property including his bank stock; and that neither of the listers in said town in any way notified the plaintiff that he was assessed over and above what he was owing, either for money on hand, debts due, bank stock, or other property ; that in making up the list in the year 1869, the listers entered upon said list to the plaintiff, without his knowledge, under the head of personal property, as follows : “ Full value of all taxable property after deducting the just debts owed, $2,000,” as and for the list of the plaintiff’s personal property for the year 1869, without specifying what said $2,000 .was made up of; that the amount of real estate of the plaintiff for said year 1869, as it stood in the list, was $2,478, which, together with the said $2,000, made the sum of $4,478, being the sum in the grand list of the plaintiff upon which said taxes, as specified and set forth in said plea, were made out and assessed, when in fact the plaintiff had no personal property upon which he ought to have been assessed or taxed, over and above what he was owing ; and concluded with a verification, and treated as traversed. Trial by the court, December term, 1873, Peck, J., presiding. The taking was admitted. No question was raised in relation to anything except the legality of the appointment of the defendant as collector, and the legality of the list of the plaintiff upon which said taxes were assessed. It was admitted that said Gil-man was duly elected constable and collector of the town of Corinth, at the annual March meeting in 1869, and that the taxes were made out and put into his hands for collection, and remained in his hands without being collected until the 26th day of March, 1870, when he permanently removed from said town, at which time there was no other constable or collector therein ; that thereupon the selectmen of said town appointed the defendant to collect the taxes so remaining uncollected, and pursuant to such appointment, the defendant took the rate-bills, with warrants attached, and proceeded to collect said taxes, and took the oxen in question, and regularly disposed of them by virtue thereof, to satisfy said taxes against the plaintiff.</p> <p>It appeared that on the first day of April, 1869, Hale Davis, one of the listers of said town for that year, called upon the plaintiff for his list of personal property; that the plaintiff then gave him his list of personal property, amounting to $3,648, not including bank stock, which said lister, in the plaintiff’s presence, wrote down in a book that he carried for that purpose. The plaintiff at the same time informed said lister that he was owing the sum of $6,000, and claimed that his personal property should be deducted from his list, on account of said indebtedness. And the said lister then made a minute upon his book under said list of personal property, in these words: “ Sixty hundred offset.” It appeared from the list of said town for the year 1869, and from other evidence, that the listers did deduct from the plaintiff’s list, by reason of debts owing, all the plaintiff’s personal property except his bank stock, which stood in the list at $2,000, but was not designated as bank stock in the list, and the list did not show what it was made up of, but the said Davis testified that it was for the bank stock, and the plaintiff’s counsel so claimed, and the court so found. It appeared from the list of the previous year, that the plaintiff was assessed that year for $2,000 bank stock, and for money on hand and debts due, the sum of $1,500. It did not appear that in 1869 the listers, or any of them, notified the plaintiff that he was assessed for money on hand, debts due, stock in trade, or of the amount of his assessment, or the time and place when and where they would hear him if he felt aggrieved by his assessment, except as hereafter stated.</p> <p>It appeared that at the time said Davis took the list of the plaintiff’s personal property as aforesaid, they had some conversation about bank stock. The plaintiff inquired of Davis, at what price they were going to put it in the list, saying he had $2,000 bank stock in Chelsea bank, which he would find at the town clerk’s office, and claimed it was put in too high before, and said he thought it ought not to go in at more than two thirds thspar value, saying that some towns put it in at two thirds par value. Davis did not call on plaintiff for a list of his bank stock, expecting to get a list of that at the town clerk’s office, as he knew he had the bank stock, and knew that it was set in the list the year before, and not deducted from the plaintiff’s list that year on account of any indebtedness.</p> <p>It was conceded by the counsel that this same stock was set in the list to the plaintiff the year before, at the same sum as in 1869 — $2,000. Davis took no minute or list of the bank stock on that occasion. The plaintiff and Davis had some conversation about the plaintiff’s alleged indebtedness of $6,000. Davis asked him who he owed the debts to, and the plaintiff refused to tell, saying lie was not obliged to tell. In reply to what the plain" tiff said about having his stock go in at two thirds, or less than par value, Davis told him he did not know about that. Before they separated on that occasion, Davis indicated to the plaintiff that he was satisfied to have the plaintiff’s indebtedness offset to the extent of the articles of personal property, aside from the bank stock, but did not assent to anything beyond that, and told the plaintiff that the listers had appointed a day (then to come) when they were to meet at the town clerk’s office in that town, to look over the list, and told him what day it was, and asked him to come down there at that time.</p> <p>It appeared that the listers had fixed on a day to meet, as Davis stated to the plaintiff, and that they did meet at the time and place named, on that business, and the plaintiff did not appear, although he came near, and was at a store across the street at that time, a few rods from the town clerk’s office, when the listers met. This meeting of the listers was for the purpose of making up the list. The plaintiff did not know of the decision of the listers in relation to his list, till soon after the list was made out.</p> <p>The court found that the plaintiff was owing debts to the amount of $6,000, and more than enough to cover all his personal property, including bank stock ; that the said $2,000 standing in the plaintiff’s list, was for his bank stock, and that the lister who took his list, did not, from what transpired between them, understand that the plaintiff claimed to him to have his bank stock exempted from his list as personal property, in consequence of his said indebtedness, but the plaintiff understood it otherwise.</p> <p>The plaintiff claimed that the reason why the bank stock was not taken out of his list was, because the listers understood that bank stock could not be taken out for debts; but the court did not find it proved that such was the reason. It was not claimed by the plaintiff’s counsel that there was any fraud on the part of the listers, or any of them ; but, on the contrary, it was conceded that they intended nothing wrong, but mistook the law.</p> <p>The plaintiff’s list for 1869, was made up of real estate valued at $2,468, and the said bank stock, $2,000, and one poll, making in all $4,678.</p> <p>The court rendered judgment for the defendant to recover his costs ; to which the plaintiff excepted.</p> <p>The selectmen had no power to make the appointment. The constable had femoved out of town, and that left the office vacant, and a new election should have been had. Gen. Sts. 536, §§ 53, 54, 55. There is nothing equivocal or doubtful about the phraseology or meaning of the statute. Taking the three sections together, there can be no doubt about the true construction of the statute. Moving out of town creates a vacancy. A vacancy can only be filled by calling a special meeting of the voters of the town. In case a special meeting is not called, then the office remains vacant till the annual meeting.</p> <p>It is claimed that the selectmen had power to make this appointment, by virtue of the 58th section of the same statute. ' This section applies to a case of disability, and not to a case where there is a vacancy. The selectmen in this case have no power, only on request of the collector, which cannot be in case of a vacancy, as in that case there is no collector. In case of disability by sickness or otherwise, there is no vacancy ; and in that case he is as much the collector as he was before he was disabled.</p> <p>It has been, and may again be, claimed, that the expression “ disabled by sickness or otherwise,’'’ includes a case of vacancy. The first objection to that would be, a contradiction in terms. But a greater difficulty is, that the statute has specifically provided for a case of vacancy; and the two cases are entirely separate and distinct, and have no connection with each other., “Disabled by sickness or otherwise,” means otherwise disabled ; and otherwise disabled means, disabled in a manner already enumerated, or of a like character. Cummings v. Clark et als. 15 Yt. 653. The selectmen had no judicial discretion in determining when they might make an appointment, except to decide who was a competent person. Cummings v. Clark et als, supra.</p> <p>The facts detailed in the exceptions, show that the plaintiff’s list was illegal.</p> <p>The list is erroneous .on the face of it. The lister accepted an offset by way of debts of $6,000. The whole of his personal property, including the bank stock, is $5,648, and still the list shows the amount of taxable property, after deducting the just debts owed, to be $2,000.</p> <p>The only question reserved on the first part of the case is, whether a removal from town by the collector, can be treated as a disability under the statute, so that authority would be vested in the selectmen to appoint a collector to collect and pay over the arrearage, or balance of unpaid taxes. Gen. Sts. ch. 84, § 58.</p> <p>All the necessary facts to constitute a perfect and legal appointment, under the act in question, are fully stated in the plea, and are admitted by the replication. The only fact questioned or put in issue by the replication is, that Gilman was not disabled within the meaning of the statute. Said § 58 authorises the selectmen to appoint a collector under the circumstances of this case. The word otherwise, made use of in this section, taken in its general sense, comprehends, and was intended to comprehend, all possible ways in which a collector may become disabled and rendered incapable of collecting the taxes. The statute is to be construed the same as though it read from sickness, or by other causes. The word is so defined by lexicographers, and the words, other causes, made use of in the definition, express the idea most commonly intended and conveyed by it. The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import. 4 Kent. Com. 511. The evident intention of the statute, disclosed by this section and the context, is, that at all times there shall be in existence in a town, authority properly equipped to enforce the collection of taxes.</p> <p>The 54th section of chapter 84, provides for an election of a collector in case of the removal, death, guardianship, <fcc., of the collector in office ; but it is not necessary to hold, under the whole chapter taken together, that an election under the provisions of that section, is the only means by which an immediate want can be supplied in such cases.</p> <p>As to the validity of the tax, the facts found do not sustain the plaintiff’s objections.</p>

<p> Highway. </p> <p>The fact that a highway surveyor does not immediately proceed in the attempt to render a highway passable and safe for travel, when it has suddenly become impassable and unsafe, is not conclusive upon the question of his negligence. The question</p> <p>' is, whether such attempt would be successful if made; and in this respect the statute must receive a reasonable construction; and where it is evident that such attempt would be fruitless, it would be unreasonable to require it to be made. Thus, as bearing upon this question, where the highway upon which the injury was received, and others in the town, were suddenly rendered impassable and unsafe by reason of the thawing of the snow, which commenced on Saturday and continued during the Sabbath, the town up to the time of the thaw being in no fault in not having kept the snow cleared from the roads, it was held admissible for the town to show the condition of the roads at the time, and the number of miles of road the town was bound to maintain and keep in repair, and the number of the inhabitants in the town.</p> <p>Held, also, there being no such conflict in the testimony as to entitle the plaintiff to go to the jury upon the question, that it was not error for the court to rule as matter of law, that neither the officers nor the inhabitants of the town, were bound to bestow labor upon the highway in question on the Sabbath.</p>

<p> Promissory Note given for Intoxicating Liquor. </p> <p>Sec. 32, ch. 94, oí the Gen. Sts., which provides that “no action oí any kind shall be had or maintained in any court in this state, ior the recovery or possession of intoxicating liquor, or the value thereof, except such as is sold or purchased in accordance with the provisions oí this chapter,” renders a promissory note given for intoxicating liquor not thus sold or purchased, absolutely void, so that a bona fide holder thereof for value and without notice, who takes it in the due course of business while current, can not recover thereon.</p>

<p>[ In Chancery. ]</p> <p> Equitable Estoppel. Asquiescence. Jurisdiction of Court of Equity and, of Law. </p> <p>It is altogether outside of the province and functions of a court of equity, to enforce a forfeiture.</p> <p>In all cases where the facts relied upon amount to an equitable estoppel to effect a legal title, they are as available for that purpose in a court of law as in equity, and resort to a court of equity in such cases is unwarranted.</p>

<p> Costs. Practice. </p> <p>Costs of witnesses on the hearing before commissioners appointed on a petition for the establishment of a railroad depot, were allowed the defendant, the prevailing party; distinguishing the case from cases for the laying out of highways.</p> <p>The same rules and considerations govern in such cases, as to the allowance of witnesses who are summoned and attend, but who are not called to testify, as obtain in cases tried in court. It must he shown affirmatively that such witnesses were summoned in good faith, and for such cause and occasion as would justify their attendance at the expense of the other party, or they will not be taxed. Babeett, J.</p> <p>Costs should be taxed by the commissioners in such cases, the same as by auditors and referees; and if question is to he made to the court as to such taxation, the commissioners should report the facts relative thereto. Babeett, J. .</p>

Trespass for wool. Plea, the general issue, and justification under a tax-bill and warrant. Replication, de injuria, and joinder. Trial by jury, June term, 1874, Peck, J., presiding. The plea alleged, among other things, that on the 24th of May, 1869, the intestate had a list in the town of Chelsea, to the amount of $78.78. At the trial, the plaintiff gave evidence tending to prove the taking and carrying away of the wool as alleged.

<p>[ In Chancery. ]</p> <p> Tenants in Common. Partition. Waiver of Pquitable Rights. Chancery. </p> <p>Where parties are tenants in common by deed, no form of issue under a petition for partition, can result in changing the operation of the deed; nor can the relation evinced thereby, be altered as the result of such proceeding, without impeaching the deed for fraud.</p> <p>By consenting to the appointment of commissioners under such petition, a party does not thereby waive his equitable rights in the premises, and yield to the claim of his adversary adverse thereto, if he consents, supposing such equitable rights to be available to him before the commissioners.</p> <p>Defendant sold the orator, P., the south half of a piece of land in severalty. P., by defendant’s permission, placed a house thereon, and paid defendant the full purchase money thereof. Defendant thereupon executed a deed to P. of an undivided’ half of the whole land, which P. accepted, asserting his right to a deed of the south half in severalty, but relying upon defendant’s assurance that the result would be the same under such deed as under one conveying the south half in severalty. Defendant never paid, nor agreed to pay, anything for said house. Held, that defendant was not equitably entitled to any interest in said house, and that his claim to an undivided half thereof in his proceedings by petition for partition, was a wrong which could not be righted without resort to a court of equity.</p>

General assumpsit. Plea, the general issue, and Statute of Limitations. Trial by jury, June term, 1872, Peck, J., presiding, and verdict for the plaintiff. No replication to the plea'of the statute was filed ; but by agreement of counsel, the facts stated in the charge, were shown, and to have the same effect as if formally replied. Upon this point the charge was as follows: This action was commenced April 14, 1871; that would carry it back to April 15, 1865.