Volume 5 — Vermont Reports

This was an action of covenant broken, brought on the covenants contained in the defendant’s deed to the plain- ' tiff, of lands in Charleston, late Navy, in Orleans County. Issue to the country. The writ, pleadings, deeds, and all papers used on the trial, are made a part of the case.

This action came up from the County Court for a hearing on the following Bill of exceptions, to wit: This was an action of Assumpsit for work and labor, as… Held: that in such cases, the vendor was not liable for any defect in the article sold', Unless he used some artifice to conceal it, or made some misrepresentation with a désign to deceive. Hence the decision of the Court in the cases of Bagleholevs. Walters, 3 Camp.- flop* 154, and Pickering vs. Dawson, 4 Taunton, 779.

<p>That^tlio decision of the County Court upon a motion for a uew trial cannot bo earned up to the Supreme Court by exceptions to such decision.</p> <p>That, when on.e of the several pleas in offset is defective in substance, and thore is a general verdict for the defendant by reason of damages allowed on such pleas in offset, the judgment must be arrested.</p> <p>That, in such case, the action is not thrown out of Court, but a venire de novQ is awarded.</p> <p>That a count upon a warranty, made after a saléis complete, is bad after ,a verdict, for want of consideration</p>

This cause came up from the County Court to be examined upon the following Bill of exceptions, to wit: Trespass for a two year old Steer and a: yearling heifer. — Plea not guilty and trial by Jury. It appeared in evidence, that, in March 1829, one Samuel Moore went into possession of a farm in Barnet, belong--ing to one Gibson, under a verbal- lease for a year, Gibson' stocking the farm, and Moore to have part of the increase of said stock, at the end of the term.

<p>IN CHANCERY,</p> <p>That a Bill of foreclosure need not allege* that the mortgagor had any title to the premises mortgaged.</p> <p>That a demurrer to a hill in Chancery, 'Which is well taken as to some point or points, therein named, but not well taken hs to others, must be overruled i» toto.</p> <p>That a bill, which wholly omits the interrogating part, is, for that reasoh, defective.</p> <p>That a demurrer to a discovery of usury, charged in a bill, must be allowed, hnless 1he person demurring waives the forfeiture, and seeks only to he relieved against the usurious part.</p> <p>That the Court will not admit a plea of usury, presented, out of timé without a waiver of the forfeiture.</p>

This was an action depending in the County Court upon an appeal from a Justice of the Peace, and brought on certain notes endorsed by one William B. Eastman to the Plaintiff, amounting to ,$85,99, to which the defendeni-plead in offset his account against said Eastman, arising before notice of indorsement containing the following item : Febuary 4th 1829. — “ Going to Gilmantown for you, to get your brother to help you out of difficulty, $25'.

This was an action which was tried by the County Court,- and came into this Court upon the following- Bill of exceptions'. Ejectment for part of No. 5 in the 5th Range 1st Divi-sión in Burke. — Isaac Fiske original proprietor.

<p>This was a petition to set aside a judgment obtained by default, through some mistake, as the petitioner contends, and to lay the cause open for a trial. The judgment was rendered in the County Court, and this petition was presented to tho same Court, at a subsequent term, with a regular citation to, and service-upon, the' opposite party.The petitionee filed a motion to dismiss the petition on the ground, that the County Court has no jurisdiction- of such a petition ; but that the Supreme Court has exclusive jurisdiction, by virtue of the 17th Sec. of the Statute of 1825. The County Court overruled this motion to dismiss, and proceeded to examine the merits, and did set aside the judgment and open the cause for a new trial.— The petitionee filed his exception to this decision, upon which the cause came to this Court for a rehearing upon that question of jurisdiction-.</p> <p>The Counsel for the petitionee have now contended be-' fore this Court,</p> <p>1st. That County Courts have not original jurisdiction of petitions for a new trial; it being given exclusively to the' Supreme Court by a statute of 1825, page 6, sec. 17.</p> <p>2d. The facts set forth in tho petition do not disclose sufficient reasons for granting a new trial. County of Essex vs. Berry, 2 Vt. Rep. 161. The Court in that case' adopted the language of Gross, J'., Marriott vs-. Hampton, 7 D. & E. 265 and say, “ It would tend to encourage the greatest negligence, if we were to open the door to parties, to try their causes again, because they were not properly prepared the first time.” And in Bateman vs. Willoe, 1 Sch. & Lef. Lord' Redesdale said “ A bill for a new trial' was watched by equity with extreme jealousy; and it must see that injustice has been done, not merely through the inattention of parties.'’</p> <p>Argument for petitioner. — The only question In- this case is, had the County Court jurisdiction ? And tho defendant, to take away the jurisdiction of the County Court, relics on the 17th section of fie act of 1825; where it is enacted “ That all petitions for new trials, in causes tried before any County Court, shall be presented to, and determined by, the Supreme Court in the same County, where such cause shall have been tried.”</p> <p>This act was not intended to abridge generally the common law right of the County Courts, confirmed by statute, to grant new trials; but to extend the jurisdiction of the Supreme Court to causes tried in the County Court; leaving the general jurisdiction of the County Court to set aside their judgements, rendered through inadvertence, or when there was a want of proper notice, unimpaired. 2 Sellon 857, Compiled Stat. 88, 3 Black. Com. 387, 1 Sel-Ion 482, 374.</p> <p>The petition is not for relief from a judgement in a cause tried in the County Court; but from a judgement rendered on default, through mistake and surprise. Trial is the very thing sought for by the petitioner. His case is not therefore, on any construction, within the letter or spirit o£ the act of 1825-</p>

<p>That, whero fivo sureties of an insolvent principal confess a joiut judgment* and execution issues, and four are committed to prison, and give separate blonds to the keeper of the jail, and then procure the property of the fifth to he sold tQ satisfy the original execution. Ho has his action against each ono to recover a fifth part of the amount paid.</p> <p>That in the above case one of the four, thus committed and liberated on bonds, is a competent witness for the plaintiff against another, who is defendant.</p> <p>That the plaintiff need not give notice and make demand before tho com* mencement of his action, when tho defendant caused the measures, which .compelled the plaintiff to pay the money, which he now seeks to recover back.</p>

<p>The tUstincúon-betwoün the return of ft Sheriff on a writ, which he and the return of a. collector of taxes on his rate-bill or warrant: Tbe return of the Sheriff is an official act, done under the oath of his*'office, and deserves credit; but the return of the collector is not an official act, inasmuch as the law does not require him to make a return on his rate-bill, or warrant.</p> <p>The collector of taxes, who is sued as a trespasser for making distress, may plead specially, and give in evidence his rate-bill, and warrant, and adver* tisement of the distress for sale j and wbat these do not prove he may show. by parol evidence. ...</p> <p>.. But the Collector’s certificateM showing the seizure, and sale of the distress for taxes, are not legal evidence for the Collector.</p>

<p>This was an action on Book Account, .and judgement to account was rendered, and an Auditor was appointed, who reported generally that the plaintiff recover the sum of $3,38 cents to balance book accounts — and also reported specially concerning the case. Defendant filed exception^ to the report, which was accepted, and judgement rendered thereon by the County Court; to which judgement the defendant excepted, and the case is brought to this Court for a further hearing, and correction of errors, if any there be.</p>

<p>Tiiat tUe omission of vi et armU in an action of trespass» docs not vitiate this state, unless met by a special demurrer.</p> <p>That the refusal of the Court to receive a plea, after the last continuance, or the taxing of witnesses travel and attendance, cannot be assigned for error, 'unless the grounds of decision are placed upon the record by a bill of excep-iions.</p>

<p>, That a letter, written by-the plaintiff to A. G. making propositions- evident* ly relating to transactions of B. C. there being no such person known as-A; C. is admissible to the Jury as evidence against the plaintiff; offfacts therein recited.</p> <p>That a deed, convoying all the grantor’s rigbtto certain premises, acquired by the levy of certain executions, conveys no more, than the gvantoracquired by such’levy.</p> <p>That, if such levy be for an undivided half, possesson 'taken under suoh deed ‘ or levy will be considered, prima facie as possession of half only, and that for the benefit of-the other owners.</p> <p>That one tenant in common cannot maintain trespass quare clausum fregit against his co-tenant iu common, while such tenancy continues.</p> <p>That there may be a tenancy in common of an inchoate as well as of an absolute title</p>

This was an action of account, against the defendant as Bailiff and Receiver of the plaintiff in respect to the issues and profits of certain lands in St. Albans; to which the defendant pleaded that he was never bailiff and receiver— on which plea issue was joined.

This was an action on Book, in which the Auditors reported a small balance due the plaintiff.' The defendant .took exception to the report in the County Court, but that ■Court overruled the exception, and rendered judgment •on the report. Whereupon the defendant took exception to their decision, and brought the matter before this Court.

This was an action of assumpsit. The declaration was silent as to any act of incorporation. The defendant plead in abatement that there never was, a person in being called or known by the name of the Boston Type & Stereotype Foundry. To this plea there was a demurrer, upon which a judgement of respondeas ouster was rendered. To this judgement the defendant excepted.

This was an action of Trespass originally commenced at the County Court, and there tried on the general issue. Upon the trial ofthp case before the jury, the opinions and charge of the Court were made the subject of a Bill of exceptions, upon which the ease now comes up to this Court for further adjudication. Most of the facts set forth in the Bill of Exceptions are sufficiently stated in th opinion of the Court for a full apprehension of the case.

This was an action on Book account, and from the auditors report the following facts appeared.

This cause came up from the County Court upon the following Bill of exceptions, to wit: This was a special action on the case in form of assump-sit, brought by the plaintiff, against the defendant for immoderately driving the plaintiff’s horse. The plaintiff in support of his declaration introduced testimony, tending to prove, and insisting that he had proved, the following facts.

This was an action of assumpsit on a promisory note dated October 28, 1829, for the sum of $24,50, payable in neat cattle, delivered at the defendant’s dwelling bouse, in Alburgh, on the first day of October, A. D. 1830. Plea non assumpsit.

This was an action of debt on judgement pending in the County Court. The writ was issued against the defendant and one John Mott, but the officer returned a non est in-ventus as to the latter. The plaintiff counted in his declaration upon a judgement in his favor against defendant and said John Mott. Defendant appeared and plead 1st. Nul Tiel.

This was an action on Book which seems to have been pending in the County Court. The defendant plead in abatement, stating, that at the time of the delivery of the article charged, the plaintiff, and one Joseph Tilitson, were partners and joint owners of the same, and that the property was delivered to the defendant as their joint property, and not on the private account of the plaintiff. The plaintiff replied, traversing the facts stated in the defendant’s plea.

This cause came up from the County Court for a hearing’ upon- a Bill of exceptions, from which it appears that this was an-Audita Querela brought against the afore--said Freeman, and one-James Bougery, to set aside an Execution in-their- favor against the said Clark.

This was a suit originally commenced before a justice of the peace, and was carried up to the County Court by an appeal entered by defendant. It was an action against an officer for neglecting to serve and return an execution in favor of the plaintiff— Plea not guilty. The declaration set forth a judgment upon which the execution was issued of $5,30 damages and 25 cents costs, and concluded to the damage of the plaintiff $20,00.

This was ail action of debt upon the administration bond of the defendant, as administrator de bonis non of the estate of Alexander Gordon deceased,* Philo Berry and Polly Gordon having been the former administrators.

This was an action on the case for the neglect of the defendant, as Sheriif of Franklin County in the levy and return of an execution.

<p>This was an action originally commenced before a single magistrate, from whose judgement an appeal was taken to the County Court, and there ruled out to a referee, from whose report the following facts are drawn. The plaintiff exhibited an account, the first nine items of which the referee disallowed, on the ground that they were barred by the statute of limitation as insisted by the defendant.— Two other charges of the plaintiff’s account which seem to ]iaye been within six years, were allowed by the referee, to1 wit. Three dollars for the use of a horse, and fifty cents f°r keeping sheep. In relation to these last mentioned charges the referee reported as follows :</p> <p>“It Was proved that the plaintiff a short time previous to-the commencement of the suit, sent his son Thomas Chip-man, jr. to demand of def’t.fotir Dollars as payment for the use of the horse, that the defendant tendered to him ‡3,00 for the use of the horse, and fifty cents for keeping sheep., which he refused. The defendant brought the said $3,50 and pleaded it on trial before your referee, and he herewith delivers it into Court. It was further proved that at the' return day of the writ, the defendant appeared and procured a continuance of the cause for the purpose of procuring counsel; and that on the day to which the cause was continued he again appeared, and not having counsel submitted to a judgement without any trial, and without bringing into Court, the money tendered. That at the time-at which the appeal was entered the cause was referred, and the money tendered was not then produced in Court. The plaintiff contended that upon this proof the defendant waived his tender, and that he could not avail himself of it before the referee. But the referee was of a different-opinion and therefore reports that the defendant has legally tendered the sum in which he is in arrear to the plaintiff, and ought to recover his costs.”</p> <p>To this report, the plaintiff filed the following exceptions :</p> <p>1st. Because the said referee decided contrary to Law in rejecting the first nine items in the plaintiff’s account on the ground that the same were barred by the Statute-of limitations; the tenth item in said account having been delivered within six years after the delivery of the nine-items.</p> <p>2d. That the said referee decided contrary to law in deciding the tender to be legal; the said Thomas contending that the said defendant had waived the right of pleading the tender by having neglected so to do, before the Court below.</p> <p>There are two exceptions to the report of the referee.</p> <p>1. He mistook the law in deciding a portion of plaintiff’s account barred by the Statute of limitations. We contend that although a portion of the account may be of more than six years standing, yet if the account is running and the previous items aro followed by other items within six years, the whole account is taken out of Statute. Every new item of debt or credit is an acknowledgement of a previous unsettled account and a promise to pay the balance, 2 Mass. 217; 6 Ter. R. 189; 2 Vt. R. 146.</p> <p>2d. The tender ought not to have been allowed.</p> <p>1st. It was not made at the proper place or to the proper person. From the Report it appears to have been made to a mere agent who was authorized to receive a different sum, and not made at'the house of the creditor. The only cases where a tender to an agent has been held good are where the debtor to save himself was bound to make his tender at a particular place, and if the creditor was not there to receive, as it was his duty to have been, the tender maybe made to his servant.- The law in those cases presumes he has left his instructions with the servant. Dan. Vol. 5, 498.</p> <p>2d. If the tender was originally good he has forfeited all rights under it by his subsequent conduct. This will be fully evinced by applying the rules of law applicable in cases of this kind to the facts as they are stated in the report and record. Before the magistrate he made no defence of this kind, but we contend he ought there to have plead orally at least his tender and have brought the money into Court. It is laid down in all the books that in Indebitatus assumpsit, the party who pleads a tender must aver in his plea, 1st. That he has always been ready to pay. — 2d. That he is still ready. — -3d. That he must bring the money into Court; and 4thly. That this plea cannot be pleaded after a general imparlance; and if a tender be pleaded after an imparlance the plaintiff may sign judgement or apply to the Court to set under the plea, or demur, or allege the imparlance in his replication by way of estoppel. Tidds Prae. 418; Willson, 632 ; Ld. Raymond, 25 & 254; 2 Salkield, 622 & 623; 10 Mod. 81; 12 Mod. S> U8> 354’’ 5 Bas- Abg. ¡17; 5 Danes Dig:- 500, 48£ The authorities all go upon the ground: that the defendant by asking time to plead, contradicts the first material requisite in his plea, and^ shows that he has not always been ready to pay.</p> <p>1st. There is nothing; in the case to exempt the first nine articles of plaintiff’s, account from, the statute of limitations. They accrued-, more than six years before the commencement of the action. The accounts were not mutual, no credit beings given by plaintiff nor any account exhibited: by defendant. Cotes vs. Harris, Buller, N. P. 149. These items cannot be brought within the exception relating to merchant’s accounts ; nor is there any evidence of ap express promise* or of facts from- which a promise can be implied-</p> <p>2d. The only question properly arising;' under the third-exception is; whether the defendant has waived bis-tender by not pleading, it in the Court below. The strictness-with which the plea of tender was anciently received has-been of late years greatly relaxed*, it was looked upon-for no sufficient reason surely., as a- suspicious, not to s-ay a dishonest defence, and was required to be pleaded with-great formality, upon entering the appearance in the cause. It is now holden in- England as well as in this* country to be an honest defence,.and one equally entitled.to be favorably received with any other. Nor is it- now necessary to plead it before imparlance. If pleaded ira vacation and entiled of the preceding term it is enough. 1 Burrow 59; JYoono vs. Smith, 1 H. Blaeksione, 369.</p> <p>The practice in this state, with respect to- filing the* plea, is the same as in England, at least in- those counties? where causes are continued of course for pleading; and as-to paying tire money into Court, it is well understood- noft to be necessary until the cause is called up for trial.</p> <p>Unless it appears that the plaintiff has or might have sustained some damage in consequence of the neglect of the defendant to plead the tender in the Court below, the Court ought not now to reject the plea, upon technical grounds which certainly had not originally any solid foundation. The case shews that the question was not ■whether a tender was made in fact, but whether enough-was tendered, and the bringing of a suit, .without -a demand ■of the sum, previously tendered, shews .that the object of the suit was to recover, not what the defendant admitted to be due, but the excess of the plaintiff’s account over that sum. There was no trial before the magistrate, nor any issue joined, except for forms sake, and if the money had been paid into .the hands of the magistrate there is no ground to presume that plaintiff would have taken it out and abandoned his suit, but the contrary. Between the .appeal and the session of the County Court he could not have taken it out, because 'the authority of the justice in the cause ends with the appeal, and he could not have paid the money to plaintiff, even if it had remained in his ■hands. But it would not have remained in his hands. It is the business of the appellant to carry up to the County ¿Court 4he copy of the proceedings below and every thing ..else%that belongs to the case. If ¿hen the defendant had ¡.paid the money to the justice, it would have been the duty of the justice to pay it back again forthwith, upon the entering of the appeal, and demanding of the copy by defendant. 'This would be a very idle ceremony. Nor could ¡the ¡plain tiff have taken the money, after the cause was entered in the County Court, for the whole matter was taken -away from the -Court by .the reference, on the entering of the appearance. It does not appear then that the plaintiff has sustained any damage by the neglect of defendant and ¡the defence ought not therefore to be rejected,</p>

<p>t Where cue of the partners retires from a firm, to discharge him from subsequent transactions, actual knowledge of the dissolution raustbe carried homo to the creditor with whom there was a previous deal.</p> <p>Dictum. But a publication in the Gazette of the place where thebusiuess of the partnership was transacted, is a sufficient nolico of the dissolution to all persons who had no previous connexion.</p>

This was an action of assumpsit upon a promissory note dated April 23, 1828, for the sum of fifty-five dollars payable in cattlo or grain, two years after date, with interest — ■ Plea, General issue. — Upon the trial of this issue, the defendant contended that a mistake had been made or fraud practised upon him by the plaintiff, in writing the note, which was admitted to have been written by the plaintiff,, and that the contract as agreed upon by the parties at the-time of…

This was an action of Indebitatus Assumpsit commenced in the County Court. — Plea, Non Assumpsit — and Issue to the Jury. On trial, the plaintiff, claimed the sum of $200 and interest for that sum, which he alleged he had paid as surety for the defendant and one Solomon Morton to the Branch Bank at Burlington.

This wás ah action of ¿assumpsit upon a promissory note for tbe sura of twenty-four dolíais, dated December 14th ÍS29, payable to the plaintiff, in good neát cattle, by the first day of October, A. D. 1830, or in grain in the month iff January thereafter, and signed by the defendant Lane, and endorsed in blank by the defendant Benham.

This was an action .of ejectment of Lot No. 77, in the Village of Burlington, mortgaged to the plaintiff by Pate, one of the defendants. Plea, General Issue. It was tried March Term, 1832.

This was an Audita Querela, Brought to the County Court-, and comes up on exceptions. The only questions, presented in this'case, are, whether the present complainants, the original defendants, were-entitled to an appeal, and, if not, whether Audita Querela is the correct remedy.

This was an action of assumpsit founded upon a promise alleged by the plaintiff to have been made by the defendant to pay a certain debt due from the plaintiff’s wife to Isaac Foote, jr. & Co. as by the declaration ; to which .the defendant pleaded the General Issue.

Tliis was an action on book account, appealed from the judgement of a Justice of the Peace to the County Court, and there submitted to an auditor, whose report is here inserted, so far as relates to any question of law, now litigated. There was a motion in the County Court to dismiss the action, on the ground, that the Justice had no jurisdiction, which was overruled, until the report of the auditor should come in.

This was an action of trover for a quantity of hay and grain in the straw, which had been taken by the plaintiff, us Sheriff of Chittenden County, upon sundry writs of at-* tachment against one Elihu C. Barber in favor of several different creditors.

This was a trustee process brought against Bishop, under the statute, charging him- as trustee of one E. Spooner. The trustee (Bishop) having filed his disclosure, claimed a trial by jury.

This was a scire facias brought to obtain an execution, against the defendant, on the ground that the property which was seized and sold on the original execution belonged to another. The defendant interposed two pleas-in bar, the substance of which is sufficiently set forth in¡ the argument of counsel, and decision of the Court for a full understanding of the case. The plaintiff demurred generally.

Thig action has come from the County Court by a bill of exceptions, the particulars of which are sufficiently j\eGited in the argument of Counsel, and the opinion of the Court. The action was upon a note, to which the general issue and sundry pleas in offset were plead. Plaintiff de-; murred to these pleas in offset.

Trespass quara clausum fregit, — Plea, Not Guilty. On trial of this cause, the plaintiff showed no original proprietary title to the land described in bis declaration, r r .

This was an action on the case for the obstruction of a private way of the plaintiff. There was a jury trial in the County Court, and a verdict for the plaintiff. Several exceptions were taken to the instructions given to the jury. These, including some points not urged before this Court, appear in a long bill of exceptions, allowed by the Judges of the County Court.

This was an action on book account, which was submitted to auditors by the County Court, who made a special report of facts, and returned a balance in favor of the plaintiff By this report, it appears, that there was no objection to the items of the plaintiff; but objections were made to the plaintiff’s recovering at all, for reasons presented in the exceptions to the report, and again in exceptions to the decision of the County Court.

This was an action of trespass quart', clausum fregit. Plea 1st. General Issue, 2dly, As to the digging and quarrying, a licence. Action tried December Term, 1832.

This was Trespass on the case against an officer, for insufficient and illegal service and return of an execution. Plea not guilty within six years before the commencent of the action, on which issue was joined to the jury in the County Court.

This action came up from the County Court, on exceptions to the decision of said Court, upon a c^se agreed to by the parties. The case omits a statement of the defects in the officer’s return, by which he justified. This omission is, however, supplied in the argument of the counsel for the plaintiff.

<p>That the circumstances* admissible in evidence1 to i©but the presumption of payment, should be such as are in the way of recovering a judgement, and not merely such as render a collection of the debt improbable, like the poverty of the debtor.</p> <p>That twenty years- neglect of collection, Is a sufficient period to ground the presumption of. payment of a bond.</p>

This action was tried in the County Court, at the December Term, 1832, when the following bill of exceptions was allowed, to wit: This was an action of ejectment for a piece of land in 19th, to the Middlebury village. The suit commence 1831. — Plea, the general issue, witj defendant, Sargeant. The plaintiffs offered in evidence tachment of all the lands in Mi day of January, 1829, en a writ in| gainst the defend ant, Gibson.

This was an action of Assumpsit, tried at the County Court, December Term, A. D. 1833.

This action was brought against Wood, Seymour and others, who occupied a certain building situated on land to which the plaintiff claimed title by virtue of two several mortgage deeds, executed and delivered by one James W. Stephens, the former owner. — One of them to a man named Grimshaw, dated the 14th day of December, 1825, and assigned to the plaintiff the 5th day of October, 1827 — the other to a man named Boisgerard, dated the 18th day of February, 1S26, and assigned…

The case came up from the County Court upon the following bill of exceptions: This was ejectment for the land - on which the office of the defendant stands, in the.village of Middlebury. Plea, JYot guilty, and trial by jury. The plaintiff gave in evidence two deeds from Gamaliel Painter to Epaphras Miller; one bearing date December 6th, 1800, and the other August 9th, 1805; and proved,, that the spot of ground in question is contained in one or both of these deeds.

The plaintiff was a Sheriff’s deputy, and brought the action on a receipt of property taken by him of the defendants for a yoke of oxen attached in a suit in favor of Asa Chapman against one Ebenezer Scott, the defendants agreeing to redeliver said oxen on demand, &c., in the usual form. The property was seasonably demanded by the plaintiff of the receiptors on the execution in favour of said Chapman, but was not redelivered, and this'action was commenced against them.

<p>In the County Court the plaintiffs against whom a recovery was had in an action of ejectment brought by defendant against them, moved to file their declaration for betterments on lot No. 26, in the 3d division of lauds in the town ofBristol, drawn to the original right of Samuel Willis, in order to recover for betterments which they have made on said lot.</p> <p>On the trial, Ladd introduced evidence tending to show that he and those under whom he held, had been in possession of the premises for about 25 years until- the ouster by Gaige & Walker. It also appeared that Gaige & Walker went into possession in the Spring of 1831, claiming to hold the premises, not as lot No. 26, in the 3d division but as the Dean pitch in said Bristol. The jury found the premises in question to be lot No. 26, in the 3d division.</p> <p>On hearing, the Court overruled said motion, to which the plaintiff’s made exceptions. Exceptions were allowed, and the case now comes here for revision.</p> <p>insisted that there is error in this case; for that the Statue laws of this State authorizes and gives the defendant in any case where judgement is rendered against him in ejectment a right to filejhis deciar-ation for betterments. Rev. Sta.t. Law, 182; Pamphlet Laws, 1827,4; Bo. 1828, 5.</p> <p>The defendant contends that the plaintiffs by the act of the General Assembly of this State, passed November 15, 1820, were not entitled to file a Bill for betterments in this case — by that act the defendant in ejectment can file his bill of betterments where he had gone into possession by purchase or lease, and had taken possession of the land previous to the passing of the act aforesaid. See Rev. Stat. p, 182.</p> <p>This act -was extended by act of the Legislature passed October 29, 1828,. .See Pamphlet, p. S.</p> <p>ft appears by the exceptions in this case that the plaintiffs went into possession of the lands in question in the Spring of the year, A. D. 1831, and then not by or under a purchase lease or color of title, but claimed the premises as part of a lot called the Dean pitch in said Bristol.</p> <p>For the reasons aforesaid, the defendant contends that plaintiffs had no right to file a bill of betterments, as they did not take possession of the land by or under a supposed title or lease of the same, and did not take possession at aSll till 1831, or make any improvements till after that period, and the acts aforesaid had expired by their own limb tation, Oct. 29, 1828, so that .the respective rights of each party stood as at common Law.</p>

This action was commenced before the City Court of Vergennes, upon a note, executed by the defendant, and made payable to one James J. Winans or his order, in six months from the date ; and bearing date April 15th, 1830. Winans has since deceased, and his widow, Ida Winans, has been duly appointed administratrix of his estate; and she, as such administratrix, assigned this note to the plaintiff. The declaration presents these facts as a ground of recovery.

This was trespass for a pair of oxen and' one yoke, tried by jury in the County Court.

This was a bill to foreclose the defendant’s equity of redemption in certain premises in Vergennes and Walt-ham, mortgaged to secure the payment of the notes, described in the opinion of the Court.

<p>The length of notice to the adverse party of the taking of a deposition, not being fixed by statute, it becomes a matter of discretion with the Court m which the deposition is to be used, to judge of the reasonableness of such notice.</p> <p>Where any question has been made in a County Court, not resting upon, or to be decided according to the known principles or usages of law, but by the Court’s exercising a sound discretion, this Court never takes upon itself to revise such decision.</p> <p>It is the province of the magistrate, taking a deposition, to judge of the capability of the witness to narrate facts.</p> <p>The testimony of a magistrate taking a deposition, offered to show an apparent want of intelligence in the deponent, is inadmissible.</p>

This was am action of ejectment fot a tenement in Mid-dlebury, tried in the County Court. — Plea, General Issue. In support of his title, the plaintiff gave in evidence a deed of the premises in question, from Jacob Bartholomew, dated September 11, 1809, which was admitted.

This was an action of assumpsit, commenced in the County Courts on a promissory note, for $225, payable with interest, dated September 15th, 1821. The note was read in evidence, and it was admitted that the plaintiff’s intestate died in August, 1829 — that his estate had been represented insolvent, and Commissioners appointed thereon, who had made their return in due form of law.

This was an action of trover, tried by the Rutland County Court, April Term, 1832, to recover the value of thirty sheep. The plaintiff offered evidence tending to prove the taking, and also a demand and refusal. The plaintiff also showed a contract in writing, (a copy of which is made a part of this case,) between him and the defendant, made at the time said sheep were delivered.

On the trial of this case, which was on-an' appeal by the town of Westhaven from the order of removal of two^ justices, of Delia Turner, a pauper, from the town of Wells to said town of Westhaven, both in Rutland County, on issue, joined to the Court, of unduly removed, alleging that the place of the last legal settlement of the said Delia, was not in said town of Westhaven,” it appeared in evidence that the said Delia was the daughter of -Turner and Electa his wife, and was…

CASfr STATED'. This was an action of trespass, brought to recover the! value of a cooking, stove and pipe, which had been levied* upon and sold under an execution- in favor of Hyde against Hart. H-yde was'the purchaser of the stove at the Sheriff’s sale. The stove had previously been; Used; by Hart as a cooking stove, & was his only stove-.

This was an action of debt on judgement brought by Wm. Vaughn, Administrator upon the estate of John W„ Mott, deceased, late of the City, County and State of New York. The writ in this case was dated and served on the first of September, A. D. 1831.

This is a writ of Error, brought to correct proceedings had in an action on book, originally commenced before a single Magistrate, appealed to the County Court, who rendered a judgement to account, September Term, 1830, and appointed auditors, by whom the following special report of facts was made. “ That they find a balance due from the defendant to the plaintiff offifty-four dollars and eighteen cents, to balance book accounts between them.

This is an action of assumpsit for money had and receive ed. — Plea, Non Assumpsit. On the trial of the issue the plaintiffs claimed to recover of the defendant a certain sum of money which, was found due to them from Thomas Brownell by an. award of arbitrators made on the i 6th day of November 1830, which had been assigned to the defendant by one Daniel Church, and which had been paid to the defendant by said Thomas Brownell.

A suit was commenced upon a bond of .flOOO, conditioned for the payment of $ 100 annually during the life of said Abigail. The ten first payments were .punctually made and endorsed. Afterwards payments were refused, and a suit was commenced. The obligor died, and the suit was discontinued, and the claim carried before Commissioners. An appeal was taken from their decision to the County Court. There the cause was decided upon the following case, agreed to by the parties.

This cause came up from the County Court on exceptions to their decision on the reports of auditors. In their first report, the auditors find a balance in favor of the plaintiffs of $369,18.

This was an action on the case, tried at the County Court, September Term, 1832., on the general issue of not guilty.

This was an action of ejectment, brought to this Court by a bill of exceptions, allowed by the Judges of the County Court, which is as follows, to wit: The plaintiff in this case, claimed title to the premises in question, by virtue of the levy of an execution in his favor against John H. Perry and Hiram R. Perry; and read in evidence a deed from Jabez Perry to John Perry, the defendant, from John Perry to Abel Edgell, and from Abel Edged to John H. Perry, and the record of…

The complainant, in this case, came before the County Court, in Windham County, at the September Term of 1832, with a complaint, setting forth, that the said Oliver Doolittle 2d did, on the 30th day of August, A. D. 1832, pray out a writ of ejectment against the said Wright, and cause the same to be served upon the said Wright on the day and year aforesaid, by one Elijah Stebbins, Constable of the town of Vernon, in said County, — wherein the said Wright was directed to be…

It appears by the orator’s bill of complaint, that, in August, 1820, the defendant gave to one Benjamin Henry a quit-claim deed of a piece of land, acknowledging therein, that he had received,, as a… Held: and of the title of Jennet Bell; but this, it is presumed, cannot be considered as testimony.

This was an appeal taken by the town of Jamaica from an order of removal of a pauper, made by process before Justices, instituted by the town of Dummerston..

This was an action of- assumpsit on note dated October 18, 1820, for the sum of'fifty dollars, with interest, payable in six years from date, signed by the defendant, on which note was written the condition as stated in the opinion of the Court. Pica, non-assumpsit, and issue to the jury. The plaintiff read the note to the jury, and there rested his case. The defendant then read a deposition from Oliver Smith, which is made part of the case, and there rested his defence.

This was an action of trespass for taking 600 pounds of fresh beef, one raw cow’s hide, and 10Ó pounds of raw •beef’s tallow. The cause went to the jury on the general issue. The plaintiff proved, on the trial, that he was the owner of a fat cow, which he had killed and dressed, and that the defendant seized the carcase entire, before it was dissected, and also seized the hide and tallow, all in their raw' state.

This is an action of trespass de heñís asportatis. The defendant plead in bar a justification on the ground that the goods were taken by him as surveyor of highways, for the1 satisfaction of plaintiff’s road taxes.

This was an action of assumpsit, containing several counts, to which several pleas were filed, and among others the following : The said Gale says, that the said' Bryant, from having and maintaining his action thereof against him, ought ffi barred ; because he says, that by a certain covenant or agreement in writing, signed by the said Moses Bryant, and by the said Gale, and sealed with their seals, and duly delivered on the day of the date thereof, and dated the 17th day of…

This action cams up from the County Court on exceptions to the decision of said Court. The action was bro’t LW ’ho purpose of recovering a penalty for taking unlawful feer.,. The statute of 182), termed ‘.the fee bill,’provides specific ibes for the services of the various officers in the Cíate, and annexes a penalty of ten times the amount any officer snould receive above the sum so specified.

This was an action, of ejectment for a hundred acre lot of land, being No. 10 in the seventh range of lots in Norwich. There was a jury trial, and a verdict for the plaintiff; and' the defendant filed exceptions to several decisions of the County Court upon matters of law, which appear in a long bill of exceptions, allowed by the Judges of the County Court.

This action was brought up from the County Court by exceptions to their decisions. The following is a copy of the Bill of exceptions, allowed by the judges, so far as necessary to understand the points litigated.

This case came up from the County Court, upon the following bill of exceptions. “This was an action of assumpsit, brought by the plaintiff, to recover for meat, drink, washing lodging, doctoring, nursing and other necessaries, furnished and provided by the plaintiff, for one Jemima Jerald, a pauper of the said town of Londonderry.

This was an action of book account, commenced before a Justice, and appealed to the County Court; where judgement was rendered to account, and an auditor appointed to take the account; who made a special report, referring the case to the Court, in reference to all the items of the plaintiff’s account. The auditor attached a copy of the defendant’s account to his report.

This was an application to this Court for a certiorari •made by the town of Royalton, to be direeted to the Clerk of the late Board of Road Commissioners in the County, requiring him to certify the doings of said Board in the case therein stated.

This was a scire facias upon a recognizance of seventy-five dollars, entered into before a justice of the peace, and conditioned for the prosecution of an appeal from the judgement of said justice to the County Court.

A new trial was granted in this action a year ago. On a trial at the December Term of the County Court, in 1832, some of the questions, before decided, were urged anew, and some were varied by additional testimony.-On this trial, there was testimony, which show-. ed,- that- Major Morrill, on the third day of July, 1859, demanded of each of said two Captains, their respective filies for neglecting to make their returns during the preceding June, adding, that he would still…

This was an appeal by the Overseers of Lunenburgh from the order of removal made on the complainCof the Overseers of Bradford, against Harvey Webb, and others. The appellants plead, that said Harvey was unduly removed, because his last place of legal settlement was not in Lu-nenburgh. Issue joined to the Court.

This was an action of assumpsit, charging the defendant as a common carrier. The defendant pleaded the General Issue. Held: that the plaintiff’s waggoner was incompetent to prove the negligence of the defendant without a release from his master.

This was an action of Assumpsit, commenced before a Justice of the Peace, and came up to the County Court by appeal, at the May Term, 1832.

This was an action for money had and received, brought by the plaintiff, before Justice Fairchild, to recover $100. There were no pleadings before the Justice. — Judgement was rendered without trial, for defendant. Whereupon, plaintiff appealed to the County Court. At the first term in the County Court, the defendant plead the General Issue and the Statute of Limitations.

This was an action on the case, brought against the defendant as constable of Canaan, for making a false return on a writ of execution in favor of James Steele and against Russell Frizzle, on the 14th day of April, 1832. — “That said constable could not find the person or property of the said Russell Frizzle within his precinct, whereon to levy said executiontherefore he returned said execution in no part satisfied.

This was an action originally commenced in the County Court, on note, dated May 17th, 1825, for $120, payable by the 1st of .September, then next — half in neat stock, and half in cash, with interest. Plea, General Issue, closed to the jury. The signature of the note was admitted by the defendants.

. This was an action of Assumpsit brought on two promissory notes, purporting to be executed by the defendant, to said intestate, on the 24th day of July 1819, one for $20, and the other for $132, &c. Plea of payment of $500, to the plaintiff, as administrator, on the 12th July 1832, in full satisfaction of said notes.

This Was an action of trespass, for taking and driving, away a yoke of oxen, claimed by the plaintiff. Defendants plead the General Issue, and gave, notice that the oxen were taken on legal process as the property of John Fuller. Issue joined to the country, and tried June Term-1832.

This was an action of trover and conversion for certain household goods. Plea, not guilty. Issue joined to the country. Held: and presented defendant’s receipt for the goods and chattels at the time he demanded the same. This holding the receipt was prima facie evidence that he was agent of the plaintiff to make the demand, and take possession of the goods and chattels. Moreover, Parkhurst testifies that he was such agent.

This cause came up from the County Court upon the following bill of exceptions: Ejectment for 77 acres and 52 rods of land, taken from the east side of Lot ^0-*n township of Hydepark, drawn to the original right of Roger Enos, Jr., being in the first division of said town. Plea, not guilty. — Issue thereon. — Possession of defendants admitted.

This was an action on book, commenced in the County Court, where a judgement to account was rendered, and auditors appointed, who made a special report of a small sum in favor of the plaintiff. The report was accompanied by a statement of one of the auditors expressing a different opinion upon the facts, from that of the majority of the board.

This was an Audita Querela to set aside a judgement of the defendant against the plaintiff, rendered by a Justice of the Peace, on the 14th day of January, A. D. 1829, on the ground of fraud in obtaining said judgement.

This was an action of Assumpsit for work, labor and services, done and performed by the plaintiff, for and at the special instance and request of the defendant, in the year 1826 — plaintiff claiming forty dollars. The defendant plead the General Issue, non-assumpsit, and gave notice that when said labor was performed, he was partner with one Walker, in trade ; and that the plaintiff was a minor, under twenty-one years of age. Issue joined to the country.

This was a writ of review, brought to reverse a judgement of a Justice of the Peace, in favor of the defendant against the plaintiff. From the declaration- it appears, that the defendant commenced his process before Charles Kingsbury, Esq. returnable on the 23d day of August, 1828, when the cause was called, and the present plaintiff not appearing, was continued to the 26th of August, for notice to the defendant.

This was a complaint before a Justice of the Peace, for taking more fees in a suit upon a negotiable note, assigned for the purpose of collection merely, than would have been recoverable if the action had been commenced in the name of the payee; and was founded upon the 3d Section of the Statute of 1807, page 147.

This cause came up from the County Court on the exceptions, filed to the decisions of the County Court, on trial. The bill of exceptions, allowed by said County Court was as follows, to wit: This was an action of assumpsit for money paid in the support of one Stoddard, a pauper — as by the declaration, which is referred to. Plea, the General Issue — and trial 'by jury.

This was an action commenced to the County Court counting upon the neglect of the defendants in maintaining and keeping in repair a bridge upon their road, over White River, whereby, the plaintiffs in driving cattle to Boston were damnified ; said bridge having broke under the weight of said cattle, and two of them killed and others damaged by being precipitated into the stream.

This was an action of Trespass for Assault and Battery and False Imprisonment.

This case came up for trial upon the following statement of facts agreed upon by the parties : “The defendants admit due execution and assignment by the Sheriff of the bond declared on, and also the recovery of the judgement, issuing of execution, and commitment of Johnson, one of the defendants, to jail, as set forth in said declaration. “ And on the other hand, the plaintiff admits that a citation was duly taken out & served on him to appear before the Jail Commissioners,…

This case comes up here from the County Court upon exceptions taken to the acceptance of a report of Referees there made and objected to by the defendant. A further statement of the facts in the case, and the points relied on by counsel, will be found by a reference to the opinion of the Court.