Volume 51 — Vermont Reports

Case for slander brought to the September Term, 1873. The words alleged were, “ You committed perjury,” and were alleged to have been spoken on August 11, 1873.

Assumpsit on a policy of insurance. Plea, the general issue, and trial by jury, September Term, 1877, Redfield, J., presiding.

Trespass for a colt. Plea, the general issue, and trial by-jury, September Term, 1877, Redfield, J., presiding. The declaration was as follows : For that heretofore, to wit, on &c., at It appeared that on May 15, 1872, W. A. Boutelle sold a mare and harness to J. M. Elkins on condition that they were to remain his until a note for $250 then given therefor had been paid, with interest.

The bill alleged that on and before January 1,1867, and from that time to the bringing of the bill, the defendant Mary A. Robinson was the wife of the defendant Isaac D. Robinson, and lived with him as such ; that during all that time she was the owner of certain property in Moretown, consisting of certain lands, dwelling houses, mills and mill-yards, together with the machinery, tools, lumber, and other personalty in said mills and yards, all of which was her sole and…

Assumpsit for money alleged to have been collected by the defendants as attorneys for E. 0. Hammond, the plaintiff’s intestate, and never paid over. The specification was “ for cash collected of D. B. & W. S. Sherman about 1871, and interest on the same, about $100,” and “ cash collected on note against H. A. & W. S. Little about April, 1871, $154.34.” To the first item of the specification the defendants pleaded the general issue.

Petition for a partition of certain land in Berlin. The petition alleged that on March 13, 1847, William Woodbury and Mary his wife conveyed the land of which partition was sought, —which was that part of the hill farm of Jonathan Ayers, deceased,' that was set off as dower to his widow, Elizabeth, and which descended to said Mary as the sole heir of said Jonathan, —to George Worthington to hold in trust for the use of said William for life, after the death of said…

Trustee Process. The commissioner reported in substance as follows : The trustee offered in' evidence a statement of his account with the defendant, from which I find that there is due from the defendant to the trustee the sum of $7.99, unless the court should be of opinion that the balance is varied by the findings relative to certain items of the account as hereinafter stated.

<p> Trustee Process Summoning Administrator. </p> <p>An administrator holding money, proceeds of a settled estate, is chargeable as trustee of one entitled thereto in distribution of such proceeds, on trustee process summoning him in his personal and not in his representative capacity.</p>

General Assumpsit, brought by the plaintiff as administrator of the estate of C. V. Bancroft, to recover for services rendered by the intestate to the defendant. Pleas, the general issue and plea in offset. Trial by the court, March Term, 1878, Redfield, J., presiding.

Assumpsit on promissory notes. Trial by the court, March Term, 1878, Redfieed, J., presiding.

This was a grand juror’s complaint. It was agreed that H. W. Lyford, the justice who signed the warrant and tried the case, wrote the complaint and warrant at the request and in the presence of the grand juror for the town of Warren; that the justice then was, and for a long time before and ever since had been, “ a legal deputy sheriff within said town, and as such, was in the exercise of all the functions, and discharging all the duties, of said officethat the complaint was…

Trover for certain millinery. Pleas, the general issue, and a special plea in bar, that on October 11, 1876, plaintiff sold the property in question, with other property, to Abbott, reserving a lien thereon to secure payment of the purchase money, and that the lien was recorded the same day; that on the same day Boutelle prayed out a writ of attachment against Abbott, and delivered it to defendant, a constable, to serve and return; that defendant then attached as the…

General Assumpsit, appealed from the judgment of a justice of the peace. Trial by the court, March Term, 1878, Redfield, J., presiding. The writ was issued and served on the trustee on February 13, 1877.

Assumpsit to recover the purchase-money of a farm to which the plaintiff claimed to have lost title through fault of the defendant, the vendor, and to recover money laid out and expended thereon. Plea, the general issue, and trial by jury, April Term, 1878, Powers, J., presiding.

Trespass qua. clau. Plea, the general issue, and trial by jury, April Term, 1878, Powers, J., presiding. The plaintiff introduced in evidence a deed from R. A. Dickinson to himself, dated October 10, 1871, conveying eleven and one third acres of land, more or less, called “ the ten acre pitch,” and testified that he owned said land, and was in possession thereof.

General Assumpsit. Plea, the general issue, and trial by the court, April Term, 1878, Powers, J., presiding. The plaintiff sought to recover the sum of $87 with interest thereon, paid for usurious interest. The facts appear from the opinion of the court. The court rendered judgment for the full amount claimed; to which the defendant excepted. A trust was created by the arrangement between the defendant and Parker. Porter v. Bank of Bulland, 19 Yt. 410.

<p> Contract. Infancy. Eraud. </p> <p>Plaintiff, falsely representing himself to be of full'age, bought a wagon of defendant, paying part of the purchase-money, and giving his promissory note secured by a lien on the wagon for the remainder. After plaintiff had used the wagon until the use he had had of it was worth more than what he had paid, and until it had depreciated by more than a like sum, he made default in payment, whereupon defendant took the wagon under his lien, and sold it at auction. Plaintiff thereupon brought assumpsit for the money he had paid. Held, that as defendant retook the . wagon, plaintiff was relieved of the duty of returning it or rescinding the contract, and might recover, notwithstanding the depreciation and the value of the use of the wagon ; and that it made no difference that plaintiff falsely represented himself of age, as such a representation could add nothing to the obligation of the contract.</p>

Debt on a probate bond in the sum of $800, executed to the Probate Court for the District of Orleans by defendant Child as principal, and defendant Sumner as surety, on July 12,1844, and conditioned for the faithful performance by Child of his duties as guardian of the prosecutor, Charles B. Child. Defendants pleaded jointly non est factum, and non aecrevit within four, six, and eight years.

Trespass for a quantity of hops. Plea, general issue with notice of special matter. Trial by the court, September Term, 1877, Powers, J., presiding.

Trover with counts in case for two car-loads of corn. Plea, the general issue. The case was referred. The facts reported were in substance as follows : At some time in the summer or fall of 1874, the plaintiff entered into an arrangement with one J. C. Page, of Charleston, who was engaged in the manufacture of starch, whereby the plaintiff was to furnish Page money to buy potatoes, and take the starch from the factory as fast as it was manufactured, for his security.

General Assumpsit. The plaintiff’s specification was for cash paid to the defendant to the amount of $200, cash paid for labor and building material $268.25, and wood, hay, grain and sugar of the value of $74.10. The defendant specified in offset charges for board of the plaintiff and his wife $350, and for labor and cash paid for labor, building material, &c., to the amount of $366.82.

This was an indictment for forgery in two counts. The first count alleged that the respondent had in his possession a certain acquittance for money of the following tenor : $54.¿4. Newport, Sept. 13,1871. Received of Philip Shelters fifty-four q^dollars on account, to apply on payment on the farm I now live on. Dudley Holbrook.

Debt on a judgment rendered by the Court of Common Pleas of Coos County, New Hampshire, at its May Term, 1857.

Trustee Process. A commissioner was appointed who reported the following facts: In the spring of 1875 the defendant, who held the trustee’s promissory note of January 1, 1873, for $200, payable to himself, or order, on demand, took the note to the claimant, who was an attorney, for collection, and indorsed it payable to the claimant’s order.

General Assumpsit. Plea, general issue, and trial by the court, December Term, 1877, Windsor County, Barrett, J., presiding.

<p>Landlord and Tenant. Gen. Sts. e. 46, ss. 25, 27. Evidence.</p> <p>In an action on ss. 22, 23, c. 46, Gen. Sts. by a lessee of the premises in question, to recover possession thereof of one who went into possession under a prior lease from plaintiff’s lessor, and held over into plaintiff’s term after the expiration of his own, together with damages for their detention, plaintiff, having testified in regard to the nature and extent of his business and its profits as bearing on the question of the value to him of the use of the premises, and after having testified on cross-examination that he usually made an inventory of his stock in October of each year, and that in October, 1874, his stock “ was over $5,000,” — was asked what the amount of his stock was in October, 1875, on the 19th of which month defendant went out of possession, and whether he was not a bankrupt, and had not been endeavoring to settle with his creditors for a small percentage of his indebtedness. Those questions were objected to and the answers thereto excluded. Held, that the questions were not relevant to an issue upon the rental value of the premises, and not admissible.</p> <p>The rent reserved in defendant’s lease was $37.50 per month. The rent reserved in plaintiff’s was $40 per month. Plaintiff, after testifying in regard to the nature and extent of his business, testified that the premises “ were worth $100 a month to him,” and, on cross-examination, that he based his estimate “ on what his profits would have been if he had been permitted to occupy.” The County Court, by which the case was tried, rendered judgment for the plaintiff for a sum computed at the rate of $60 per month for the time during which defendant retained possession after the expiration of his lease. Held, that the plaintiff was not restricted by ss. 25, 27, to a recovery computed at the rate of the rent reserved in defendant’s lease, but might recover a fair and reasonable compensation for the use of the premises during the time of their detention; and that as the evidence relating to what plaintiff would have realized from the use of the premises was in some degree relevant upon the question of rental value, it was not error for the court to consider it in determining the question as to that value.</p>

Assumpsit in three counts against the defendant as indorser, as guarantor, and as surety on a promissory note for $650.65, dated January 1, 1873, signed by O. P. & G. W. Russell, payable to the order of the defendant at Lyndon National Bank, April 21, 1873. Plea, general issue, and trial by jury, June Term, 1878, Caledonia County, Ross, J., presiding.

Case for injury on a highway. Plea, general issue, and trial by jury, September Term, 1875, Essex County, Barrett, J., presiding. It appeared that the injury was received on Saturday, March 29, 1873, on a winter road in defendant town, and there was evidence tending to show that it was occasioned by a drift and a cradle-hole extending diagonally across the travelled track, so that as the plaintiff drove over them he was thrown in front of his sled and injured.

Trespass and Trover for a quantity of hay, straw, and oats. The facts in the case, which were agreed on, are stated in the opinion. On trial the plaintiff claimed to recover only for the hay.

This was a petitiou to the County Court for an allowance of an appeal from a judgment of a justice of the peace. The action in which the judgment in question was rendered was brought by the petitionee against the petitioner, on January 1, 1877, on a coupon taken from a bond issued by .the petitioner in aid of the Essex County Railroad.

Petition for Foreclosure. The petition, which was filed at the June Term, 1876, Caledonia County, by Darling alone, alleged that on June 8, 1871, defendant Osborne executed to the Montpelier & Wells River Railroad Company a mortgage of certain land in Groton, described therein as “ lots number twenty-five, seventy-six, seventy-three, and sixty-two, supposed to contain one hundred acres each, more or less,” and further described by reference to a deed of the same date of the…

Case on s. 32, c. 20, Gen. Sts., for bringing Susan A. Phelps, a pauper, from Massachusetts into plaintiff town, with intent to charge plaintiff with her support. An amended declaration in two counts was filed. The first count was for money by plaintiff laid out and expended for the support of the pauper; the second, for the fine to which the defendant was alleged to be liable under the statute.

It appeared that on December 9, 1867, the orators ordered of the defendants “ one of their Lamson’s Patent Stone Channelling Machines ” at the price of $6,000, the defendants then, and again more particularly in the following spring, agreeing “ to defend the patent right” and save the orators “harmless from loss” on account of any suits that might be brought for the infringement of other patents in the use thereof.

It appeared that by his last will, which was duly proved on November 28, 1857, Ethan Austin devised to his sons Albert N., Edgar D., and Alban M., a certain farm in Westford, of which he died seised, upon the following condition : Provided that if the said Albert N., Edgar D., and Alban M., or either of them, or the executors, administrators, or assigns of them or either of them, shall fail to pay unto my beloved daughter Lucia C. Evans during the term of her natural life,…

Case with counts in trespass and trover to recover the value of certain property sold by one Burgess, as constable, on an execution issued on a judgment in favor of the defendant, administrator of Alvin Hyde’s estate, against the plaintiff and one J. T. Evarts. Plea, the general issue, and notice of special matter. Trial by the court at the April Term, 1877, Franklin County, Royce, J., presiding.

Trover for certain horses, cattle, &c. Plea, the general issue, and trial by the court, at the September Term, 1876, Rutland County, 'Wheeler, J., presiding. It appeared that in February, 1862, the plaintiff placed in the hands of one George Pond, an authorized person, two executions against Daniel Fitzpatrick, for collection. One was for the sum of $92.30, and the other for the sum of $542.22.

It appeared that on January 9, 1873, John and John H. Balis and Henry S. Howard, who were partners under the name of John Balis & Sons, and were indebted to the orator about $2,200 on certain promissory notes then long overdue, executed to the orator a mortgage of certain lands in Benson for. $10,000, as security for the sum of those notes and a further loan for the balance, which they afterwards drew from the orator in installments from time to time and used in their…

The bill alleged that on January 1, 1856, the defendant Calvin and his wife Susan, who afterwards died, executed to the orator a mortgage of certain land in Moretown, to secure, among other things, the payment of certain notes that said Calvin had before then executed to the orator, on which the sum of $686.16 was then due ; that, on March 15, 1862, to further secure said debt, to secure additional then existing indebtedness, and also to secure future advances, said Calvin…

Assumpsit on a warranty of a horse. The declaration alleged an exchange of a colt and a certain note of the plaintiffs’ for the horse in question, and a promise by the defendant that the horse was safe, kind, and free from faults, and “ would work well in a team in drawing heavy loads,” when the horse was not safe, etc., but vicious, ungovernable, and dangerous, and of no value to the plaintiffs.

This was an appeal from probate. The case was referred, and the referee reported in substance as follows: In 1815, Benjamin Giddings, of Poultney, died, leaving a widow and several children, among whom were Damon, the defendant’s intestate Benjamin, and Joseph, who had become of age in 1809, taken an advancement from his father, and gone to reside in Ellisburg, Jefferson County, N. Y. Dower was assigned to the widow, and the remainder of the estate was divided among the…

It appeared from the bill, answer, and testimony that on February 16, 1874, the orator conveyed a pertain piece of land to the defendant, covenanting that it contained at least eighty acres, and took from the defendant a mortgage thereon to secure payment of the defendant’s promissory notes of that date for $1,500 given for part of the purchase-money ; that the land so conveyed in fact fell short a few acres of the covenanted quantity ; that on November 29, 1875, having paid…

The bill, which was brought to enforce a mechanic’s lien, alleged that in March and April, 1874, the orator entered into certain contracts with defendant James, who then resided in Boston and owned a steam saw-mill in Norton, whereby it was agreed that the orator should put a new steam engine and a gang of saws, with shafts, belts, pulleys, &c., into said mill, enlarge the boilers therein, and furnish all material and perform all- labor necessary therefor, and that the…

Trespass for nine cows, one yoke of oxen, one horse, seven young cattle, twenty-one sheep, two shotes, and two hundred bushels of oats. Plea, general issue and notice of special matter. Trial by jury, June Term, 1878, Caledonia County, Ross, J., presiding.

Assumpsit. The case was referred, and the referee reported the following facts: On November 26, 1856, the plaintiff, as surety for his brother the defendant, and at his request, signed a promissory note of that date for $1,000, payable to Horace H. Dyer, or order, in one year from date, with interest annually, it being then agreed among all the makers and the payee that ten per cent, annual interest should be paid on the note.

Petition for Mandamus to compel the petitionees to make and issue to the petitioner bonds of the town of Fairfield to the amount of $40,000, in payment for stock to that amount in the petitionee’s railroad, subscribed for by the commissioners of said town, in pursuance of an act of the Legislature, approved November 12, 1867, to enable said town, among others, to make such subscription in aid of the construction of said road.

General Assumpsit. Plea, the general issue, and trial by the court, December Term, 1877, Caledonia County, Ross, J., presiding. On June 26, 1876, the defendant made his promissory note for $290, payable to the order of J. D. Abbott at the Merchants’ National Bank of St. Johnsbury, of which Abbott was a director. Abbott and the plaintiff indorsed the note as sureties, and the bank discounted it.

<p>. General Assumpsit. Plea, the general issue, and trial by the court at the September Term, 1877, Franklin County, Royce, J., presiding.</p> <p>It appeared that on September 18, 1876, the plaintiff apprenticed himself by indenture to the defendant for the term of three years, “ to learn the art and trade of finishing marble, but to do such other chores and labor when required,” as might be necessary to the defendant, covenanting that during said term “ he would serve his master faithfully, keep his secrets and obey his lawful commands,” and that “ in all things he would behave himself as a faithful apprentice ought to do during said term.” The defendant covenanted to pay the plaintiff “ at the rate of one dollar per day (Sundays excepted) ” during the term.</p> <p>Before the plaintiff began work under that agreement he made a written assignment of his pay thereunder to his brother, John McPeck, which the defendant accepted, promising to pay to the' assignee whatever might become due to the plaintiff. But nothing was ever paid to the assignee. The plaintiff worked under the agreement sixty days, when the defendant requested the plaintiff to go into the cellar under the work-shop and open and repair a drain, that the water might run off, which he refused to do, whereupon the defendant refused to furnish the plaintiff further work until he had done as requested, although the plaintiff was ready and willing and offered to continue. Thereupon the plaintiff brought this action.</p> <p>The court held that the defendant could not reasonably demand such service of the plaintiff, and that the plaintiff was justified in refusing to obey the defendant’s command, and, on the' defendant’s refusal to furnish further work, was justified in leaving the defendant’s employment; that the plaintiff could recover, notwithstanding the assignment and promise to his brother ; and that he could recover at the rate of $1 per day for sixty days. Exceptions by defendant.</p> <p>The court found that the plaintiff’s services were actually worth to the defendant fifty cents a day while he worked.</p> <p>The right of action is in the plaintiff’s brother, and not in the plaintiff. 2 Chit. Con. 1372-1380 and notes. AUis v. Jewell, 36 Vt. 547, and cases there cited.</p> <p>The contract was entire, and was broken by the plaintiff without cause. The work that he was required to do came within the terms of the contract. Ripley v. Ohipman, 13 Vt. 268; Brandon Manufacturing Go. v. Morse, 48 Vt. 322.</p> <p>If the plaintiff is entitled to recover, it is upon the quantum meruit.</p> <p>The contract was not entire. It should be construed with reference to its general purpose. Lowry v. Adams, 22 Vt. 160.</p> <p>The defendant wrongfully dismissed the plaintiff. “ Other chores and labor ” cannot mean general labor. Such a construction would defeat the purpose of the indenture.</p> <p>The assignment did not take from the plaintiff the right of action in his own name.</p>

<p> Amendment. </p> <p>Defendants were summoned to answer to “ Lawrence Myers and Emily Myers.” The declaration contained the common counts for money had and received, money lent and accommodated, &e. Plaintiffs moved to amend by inserting after the words, Emily Myers, the words, wife of said Lawrence Myers, and by striking out the entire declaration, and substituting therefor counts on a loan by the wife while covert, of money that was her sole and separate property, and the amendment was allowed. Held, that as no different form of action and no new parties were thus brought in— both declarations showing a cause of action in favor of both plaintiffs against both defendants for the loan of money — the amendment was properly allowed.</p>

Case for injury upon a highway. The case was referred, and the referee found and reported that on the evening of December 5, 1876, while travelling over a highway that the defendant was bound to keep in repair — a highway in the defendant town, leading across what was known as “ The Bog ” — the plaintiff drove against a log by which the highway was obstructed, and thereby broke his wagon and was thrown out and injured in and about his right knee ; and that the plaintiff…

<p>Assumpsit on a policy of insurance. The plaintiffs were described in the wi'it as residents of Now Hampshire, and the defendant was described as a corporation organized under the laws of Massachusetts. The declaration alleged, in effect, that on April 18, 1877, at Lyndon, the defendant, at the instance of the Groton Lumber Company, issued its policy of insurance upon a certain saw-mill and the machinery therein, in Groton, and thereby insured the same against fire in the sum of $1,666.67, to be paid, in the event of loss, to the plaintiffs, who owned the land where the mill stood, and were interested with said company in the property so insured ; and that afterwards, during the life of the policy, said property was wholly destroyed by fire.</p> <p>The cause was entered at the June Term, 1878, Caledonia County, and on the eighth day of the term the defendant, its attorneys having appeared generally, but in fact only for the purpose of making the motion that was then made, moved to dismiss for want of jurisdiction, for that it appeared by the writ that the plaintiffs were residents of New Hampshire, and that the defendant was a corporation organized under the laws of Massachusetts, and for that it appeared by the officer’s return that no attachment was made of the defendant’s property in Vermont. But the court, Ross, j., presiding, overruled the motion both because it was out of time, and because the writ and declaration disclosed a cause of action within the jurisdiction of the court. Exceptions bv the defendant.</p> <p>The motion was proper. 4 Vt. 119. And seasonably made. Simonds v. Parker, 1 Met. 508, and cases cited. Hall v. Williams, 6 Pick. 232 ; Woodward v. Tremeré, 6 Pick. 354; Ewer v. Coffin, 1 Cush. 28.</p> <p>. The court had no jurisdiction. The contract was personal and executory. May Ins. 5, 6. The cause of action accrued in New Hampshire. Sawyer v. N. A. Life Ins. Co. 46 Vt. 697. The action was transitory and not local. 1 Chit. PI. 270, 273; Broom Leg. Max. 414, n b ; Bliss v. Houghton, 13 N. H. 126. Therefore jurisdiction depends on the residence of the parties'. At common law a corporation cannot be sued out of the state under whose laws it is incorporated. McQueen v. Middletown Manuf. Co. 16 Johns. 5. For that reason many states have passed laws requiring foreign insurance companies to designate some person upon whom process may be served.' But in all those states, when the question has been raised, the courts have held that such service added nothing to the facts necessary to give jurisdiction, but merely facilitated service where jurisdiction attached without service. Gen. Sts. Mass. c. 58, s. 68 ; Morton v. Mut. Life Ins. Co. 105 Mass. 141; Smith v. Mut. Life Ins. Co. 14 Allen, 336 ; Rev. Sts. Me. c. 49, s. 39 ; Hobbs v. Ins. Co. 56 Me. 417; Camden Bolling Mill Co. v. Swede Iron Co. 3 Vroom, 15 ; Gen. Sts. Vt. c. 87, s. 5 et seq.; Sawyer v. N. A. Life Ins. Co. supra; No. 1, Sts. 1874, expressly limits and restricts service to causes of action accruing to residents of Vermont. The pretended service should receive no consideration in determining the question of jurisdiction.</p> <p>This is not one of those cases that the court will dismiss at any stage for want of jurisdiction — cases where the court has no jurisdiction over the subject-matter. Here the question is one of process. The objection might, therefore, be waived by appearance. Bow v. School Bistrict, 46 Vt. 108, and cases passim. Here the appearance was general. It was a voluntary submission to the jnrisdiction of the court. Redfield, J., in Stanton v. Haverhill Bridge, 47 Vt. 172, 177,</p> <p>But the service was proper and the cause of action within the jurisdiction of the court. No. 1, Sts. 1874; Thwing v. Grreat Western Ins. Co. Ill Mass. 93, 109; Sawyer v. N. A. Life Ins. Co.' 46 Vt. 697, 704 ; Smith v. Mut. Life Ins. Co. 14 Allen, 336 ; Camden Bolling Mill Co. v. Swede Iron Co. 3 Vroom, 15 ; Lafayette Ins. Co. v. French, 18 How. 404.</p>

This was a petition to vacate a levy of execution on real estate, brought to the Supreme Court in Essex County, at the August Term,1876.

<p>Criminal Law. Burglary. Q-en. Sts. a. 113, s. 7. Pleadings.</p> <p>A railroad depot is a warehouse within the meaning of s. 7, c. 113, Gen. Sts. ; and the breaking and entering thereof in the night-time, with intent, &c., is burglary.</p> <p>On trial on indictment charging the respondents with breaking and entering “ the store-house and depot” of a railroad company in the night-time, with intent to steal, and with then and there stealing, &c., the jury found a general verdict of guilty, and respondents moved in arrest, for that to break and enter a railroad depot as charged was not burglary; but the motion was overruled and respondents sentenced. Held, that as the indictment was sufficient for the crime of larceny, and the sentence such as is prescribed by statute for that offense, the motion was properly overruled.</p> <p>The court charged that unexplained possession of the stolen goods would warrant a verdict of guilty. Held, that as such a charge would be sound on a trial for larceny, there was no error.</p>

Indictment for adultery alleged to have been committed on December 21, 1874, with Anna Ada Smith. Flea, not guilty, and trial by jury, December Term, 1877, Caledonia County, Ross, J., presiding.

<p> Evidence. Opinion. Expert Testimony. Disqualification of Juror. </p> <p>On trial on indictment for murder, the defence was that the respondent was subject to insanity when intoxicated or greatly excited, and that be was insane when he committed the act wherewith he was charged. The State introduced non-expert witnesses, who testified that they knew the respondent, and had seen him frequently on different occasions and under various circumstances — on occasions when he was excited, when he was intoxicated, and when he was sober. They were then permitted to testify to their opinions as to whether the respondent was insane on any of those occasions. Held, no error.</p> <p>A medical expert who heard all the evidence relating to the conduct that was claimed to indicate insanity, was allowed to give his opinion as to the respondent’s sanity in answer to the question, “ Supposing all these facts yon have heard testified to . . . are true, what is your opinion,” &e. Held, that the question need not embrace a statement of the facts developed in evidence, and that there was no error.</p> <p>A medical expert testified that he had heard all or nearly all the evidence relating to the question of sanity, but not all the evidence in the case. There was certain testimony that the respondent claimed to rely on as bearing on that question that he did not hear, but whether any of that testimony would have tended to prove insanity did not appear. He was asked whether, assuming what he had heard to be true, the respondent was, in his opinion, sane or insane, and the question was permitted to be answered. Held, that it was no objection to the witness’ testifying to his opinion that he had not heard all the evidence.</p> <p>To show insanity, the respondent introduced evidence tending to prove that he was sick and greatly prostrated and acted strangely while in jail. The State, in rebuttal, asked the physician who attended him at that time whether he thought his condition was feigned. It was objected that the witness was not present when the respondent was taken sick, but tlie witness said tlie respondent detailed to him his feelings and symptoms, whereupon he was permitted to testify. Held, no error.</p> <p>On hearing of petition for a new trial for that one of the jurors had formed and expressed an opinion previous to the trial that the petitioner was guilty, and ought to be summarily hung, which was unknown to the petitioner at the time the jury was impanneled, affidavits were read tending to show that on two different occasions soon after the alleged murder, the jnror, 'on being told of the reports in regard to the murder and hearing opinions adverse to the petitioner, said that the petitioner ought to be hung without judge or jury. The affidavit of the juror, which was also read, was, in effect, that at the time the jury was impanneled he was unaware of any prejudice against the petitioner, that he did not then know that he had ever formed or expressed an opinion as to his guilt, and that he was confident that he never had. It did not appear that the question of the petitioner’s sanity was alluded to on either of those occasions. Held, that the opinion, to be such as by its formation and expression to disqualify the juror, should be unqualified, and based on something more substantial than mere rumor, and that the evidence did not show the formation and expression of such an opinion.</p>

General Assumpsit. Plea, general issue, and trial by jury, June Term, 1878, Caledonia County, Ross, J., presiding.

Assumpsit on s. 6, c. 20, Gen. Sts., to recover for expenses incurred in the support and burial of Zur Grout, an alleged pauper.

The bill, which was filed at the September Term, 1877, in Franklin County, was brought to redeem certain premises in St. Albans.

Trustee Process. A commissioner was appointed who reported the following facts: On February 2, 1877, the defendant, who was and long had been in ill health and destitute circumstances, sold and conveyed to his sister, the trustee, his interest as heir in their mother’s estate, for the sum of $250, the sum of $75 being paid down, and the trustee giving her two promissory notes secured by mortgage on the land so sold for the balance.

General Assumpsit. Plea, the general issue, and trial by-jury, September Term, 1877, Pierpoint, 0. J., presiding. The plaintiff sought to recover the sum of $1,000 that he claimed to have overpaid the defendant by mistake in a trade for a farm in Jericho.

Case brought March 16, 1875, against an indifferent person for neglecting to serve a writ. Pleas, general issue, and Statute of Limitations. Trial by jury, April Term, 1877, Pierpoint, C. J., presiding.

<p>Power of National Banks to take Mortgages of Beal Estate. Bev. Sts. U. S. s. 5137.</p> <p>A national bank may take a mortgage of real estate executed in good faith, to secure pre-existing indebtedness; and it makes no difference that when the mortgage is executed the note evidencing the indebtedness is taken up and a new one given for its amount, and an agreement made for periodical renewals. The debt is the same though it be evidenced from time to time by different notes.</p> <p>Semble that neither the mortgagor nor those claiming under him can avoid a mortgage given to a national bank to secure a loan, on the ground of want of power in the bank to take it.</p>

General Assumpsit. Pleas, general issue, and that there was no such person or corporation as the Methodist Episcopal Society of Shelburne. Trial by jury, April Term, 1877, Pier-point, 0. J., presiding.

<p> Authority of Referee to Allow Amendment. Qonclusiveness of Report as to Matters of Law. Recommittal of Report. Discretion. </p> <p>A referee allowed plaintiff to amend the declaration, but found for plaintiff to recover on the original count only. Held, that although he had no authority to allow the amendment, yet, as no amendment was necessary to enable plaintiff to make any proof that he would have been entitled to make under any amendment the court could have allowed, and as plaintiff was found entitled to recover only on the original count, and was for those reasons not prejudiced, there was no revisable error.</p> <p>The rule of reference ordered that the cause “ be referred to the determination ” of the referee, and that his report should “be final and conclusive between the parties.” Held, that although the referee might submit the questions of law to the court, he might decide them as well as questions of fact; and that if he assumed to decide them, his decision would be conclusive.</p> <p>Defendant moved that the referee’s report be recommitted, but the motion was overruled. Held, matter of discretion, and not revisable.</p>

<p>Jury. Peremptory Challenges. Gen. Sts. c. 120, s. 4.</p> <p>Every respondent, whether indicted and tried alone or with others, is entitled to the statutory number of peremptory challenges ; and, if indicted with others, he waives not that right by consenting to he tried with them.</p>

<p>General Assumpsit. Pleas, tbe general issue, and Statute of Limitations. Trial by the court, September Term, 1878, Royce, J., presiding.</p> <p>The plaintiff, as administrator of the estate of William Clapp, sought to recover the sum due on the following note:</p> <p>1226.94. Richford, December 30,1862.</p> <p>For value received we jointly and severally promise to pay .William Clapp, or bearer, two hundred and twenty six dollars and ninety four cents in one year from date, with interest annually.</p> <p>George W. Corliss,</p> <p>F. W. Corliss,</p> <p>L. D. Corliss.</p> <p>The note bore two indorsements, one of which was as follows:</p> <p>Received of L. D. Corliss fifty dollars to apply on this note, Aug. 24, 1871.</p> <p>It appeared that ón March 8, 1871, the plaintiff called on the defendant and one .of the other signers of the note, and demanded payment; that they wanted the note to run a longer time, but said it should be paid soon ; that on the day of that indorsement the defendant gave the plaintiff a bill of exchange for $50 that E. W. Corliss had sent to him with a request that he pay it to the holder of the note; and that when he gave it to him he informed him as to whom it was from, and of the request with which he received it. That transaction was the payment so indorsed, and was relied on to prevent the running of the statute as to the defendant.</p> <p>The court rendered judgment, pro forma, for the defendant; to which the plaintiff excepted.</p> <p>There were other points of exception, but as they are rendered immaterial by the decision, they are not stated.</p> <p>The promise of March 8th is important to the determination of the character of the payment. If the defendant did not intend to have the payment affect his liability, he should have so stated.</p> <p>Section 28, c. 63, Gen. Sts., contemplates the protection of a joint contractor against the effect of payment only when payment is made in his absence or without his knowledge. In a case like this a promise should be implied. Hunter v. Kittredge’s Fstate, 41 Yt. 359 ; Goodwin v. Buzzell, 35 Yt. 9 ; Ayer v. Hawkins, 19 Yt. 26 ; I¡,yegate v. Wardsboro, 30'Yt. 746.</p> <p>cited Faulkner v. Bailey,' 123 Mass. 588 ; Balconi v. Richards, 6 Cush. 360.</p>

<p> Contract. Performance. Covenant. . Assumpsit. Evidence. Waiver. </p> <p>On December 3, 1869, plaintiffs entered into a contract under seal with defendant, whereby they agreed to “construct and finish . . . all the graduation, masonry,” &c., on a portion of defendant’s railroad, on or before September 1, 1871, and defendant agreed to pay therefor eighty-five per cent, of the stipulated price as the work progressed, and the balance when the work was finished and accepted by defendant’s engineer. It was also thereby agreed that plaintiffs should “from, time to time on three month’s notice in writing” by defendant, “retard or lessen the work for such time and to such extent ” as defendant should thereby require, and that if the work should be thereby delayed or retarded, the time in which the work was to be completed should be extended such length of time as the engineer might determine. Plaintiffs immediately began work with a force insufficient to complete it within the contract period, but intending to increase it sufficiently for that purpose, and continued therein till May 28, 1870, when defendant’s engineer notified them “ to stop any increase of work.” It was then agreed that plaintiffs should do á limited amount of work, to prepare a part of the road for early use, and should be allowed a reasonable time after expiration of the contract period, for completion of the residue. Plaintiffs thereafter prosecuted the work in accordance with that agreement until November, 1872, when defendant directed them to stop work, which' they did within three months. Defendant paid all of the contract price except the part that was earned after the giving of notice in November, and a part of the final payment of fifteen per cent., for which plaintiffs brought covenant. Held, that the original contract was, in effect, that the work should be done on or before September 1, 1871, or such later date as might be fixed on a contingency therein provided for, that the work was therefore done in performance of the original contract, and that for the breach by defendant covenant would lie ; that the provision for three months’ notice of the retarding or lessening of work was for plaintiffs’ benefit and might be waived by them, that as it was defendant’s fault that no definite extended time was fixed, plaintiffs were not to be prejudiced thereby; that the direction given to the plaintiffs by the engineer was for retarding or lessening the work within the meaning of the contract; that evidence proving the agreement for an extension of time for performance, and performance according to that agreement, was admissible; and that plaintiffs were entitled to pay for work done within three months after the notice of November, 1872.</p>

<p>Payment Pendente Lite. Offset. Usury. Specifications in Offset. Costs.</p> <p>Plaintiff, who held promissory notes belonging to defendant, as collateral security for the payment of notes against defendant, received part payment of the notes so held, and afterwards brought assumpsit on the notes witnessing the principal debt. After suit was brought he sold the only one of the notes so held that remained unpaid, and received therefor a sum more than sufficient to finish paying the principal debt. Held, that the receipt of that sum was equivalent to payment pendente lite, and discharged the cause of action, but that the excess could not be recovered in offset.</p> <p>In assumpsit on a promissory note, defendant may treat money paid thereon as usurious interest, either as payment on the note, or as money held by plaintiff to his use, and recover it in offset.</p> <p>Specifications are not legally necessary under pleas in offset, especially in trials by referees.</p> <p>Semble that where plaintiff receives payment in full of his claim pendente lite, defendant may recover costs incurred after payment.</p>

Assumpsit. The declaration alleged that on October 4, 1871, plaintiff agreed “ to construct all the culvert masonry, cattle-passes, paving, and excavating foundation pits ” on certain sections of the… Held: pro forma, that .the judgment was not a bar, and rendered judgment for the plaintiff for the agreed sum ; to which the defendants excepted. The damages for the non-performance of a special contract are entire.

<p> Evidence. Variance. Amendment. </p> <p>In case against a constable for neglecting and refusing to serve a writ placed in his hands for service, the proof was that plaintiff’s attorney went to defendant and “ handed out” the writ, saying he wanted it served immediately, but that defendant did not take it, but said he had other business to attend to, and could not serve it then. Held, that the gravamen of the declaration was defendant’s refusal to ' perform his duty by serving the writ, and that there was therefore no variance.</p> <p>Plaintiff moved for leave to amend so that the declaration might accord with the proof, but leave was refused, for that so to amend would be to declare on a new cause of action. Held, that the cause of action was the same, and that the amendment, if necessary, should have been allowed.</p>

It appeared from the bill, answer, and evidence, that on May 31, 1871, defendant Hodge executed to the orators a mortgage of certain premises in Bristol, consisting of a lot of land with a store building thereon, to secure payment of his two promissory notes of that date for $568.75 each, payable one to the orator Harmon M. Allen, and the other to his wife, the oratrix Angeline E., the latter of which notes was given for money belonging to the wife in her own right.

<p> Attachment'. Description of Property. Authorization ■ of Indifferent Person. </p> <p>In trover fora cow, it appeared that defendant,' as constable, attached five cows as the property of R. by leaving a copy of the writ with his return thereon in the town clerk’s office, describing the property attached in his return, merely as five cows on the premises of R. R. then had seven cows, but defendant supposed he had but six. Plaintiff, as an authorized person, afterwards' in like manner attached at suit of other parties as the property of R., one of the cows that defendant described or intended to describe in his return — a cow that defendant knew and saw on the premises on the day he attached — describing it more particularly as “a small, light-red cow.” Afterwards, and within twenty days of his attachment, defendant took the five cows into his possession and sold them regularly on the writ. Held, that defendant was not bound to give a description of each cow so particular that a subsequent attaching creditor could not err in determining which he had attached ; that if plaintiff, when he ascertained that there was one cow in excess of defendant’s attachment, wished to attach it, he should have made his attachment subject to defendant’s, and, at the proper time, have called on defendant to select; and that plaintiff gained nothing by his attachment as against defendant.</p> <p>When authority is to be given to a person sub modo, it is usually necessary that the conditions of the giving should be strictly observed. Thus, •semble that a writ directed “to any sheriff or constable in the State or to George Brooks,” without the additional words, an indifferent person, would confer no authority upon the person named to make service thereof.</p>

<p>These cases were petitions for foreclosure, and were heard together as one case.</p> <p>The petition in the first-named case alleged that on September 27, 1870, Edmund D. Munger executed to defendant Rockwell a mortgage of certain land in Middlebury, conditioned for the payment of his promissory note of that date for $8,937, payable to said Rockwell or bearer, on or before April 24, 1871, with interest.annually ; that on June 28,1872, Rockwell assigned the mortgage and delivered the note to the petitioner ; “ that said note and mortgage ever since have been and now are the property of the petitioner,” that they were still unpaid and undischarged, “ and that he is the holder, owner and bearer of said note that on January 8 and 14, 1873, Rockwell became the owner in fee of said land by conveyances thereof by Munger and wife and Munger’s assignee in bankruptcy ; that on January 23, 1874, Rockwell executed another mortgage of the same land to Norman W. and Hannah M. Boardman, to secure payment of $950, that on March 27, 1874, he executed still another mortgage thereon to Columbus Smith, and that both of those mortgages were still in force ; and that after Rockwell became the owner in fee of the premises as aforesaid, George B. Benner and his wife Elizabeth Benner and others attached said land in suits that were still pending, and thereby obtained liens thereon that still existed.</p> <p>The petition in the other case alleged that on December 20,1870, Munger executed to Rockwell a. mortgage of certain other land in Middlebury, conditioned for the payment of his promissory note of .that date for $5,000, payable to Hiram Walker, and indorsed by Rockwell; that Munger did not pay said note, but that Rockwell did; that after wards on June 28, 1872, Rockwell applied to the petitioner for a loan of money, a part of which he desired to meet indebtedness resulting from his payment of the note, to Walker, and by writing, sealed and acknowledged, assigned, and then and there delivered, said mortgage to the petitioner, as partial security for $8,286 then loaned him by the petitioner and witnessed by his promissory note of that date payable in two years with interest annually, no part of which had ever been paid ; that Rockwell afterwards became “ sole owner of the fee in and to said piece of land ” by conveyance on January 8, 1873, from the assignee in bankruptcy of said Munger and by conveyance on the 14th from Munger and his wife, conveying to him any right, title or interest therein then remaining in them. The further allegations of the petition were as to the execution of the mortgage to the Boardmans, and were in that respect like those of the other petition.</p> <p>The petitionees George B. and Elizabeth Benner answered,- admitting their attachment and alleging a lien thereby for $3,220.80 ; denying Rockwell’s indebtedness to the petitioner as alleged ; denying that Rockwell ever mortgaged the *land in question to the petitioner, or assigned to him the mortgage described in the petition ; alleging that if he did, the petitioner never perfected his lien under said mortgage by causing the same to be recorded; alleging that those defendants had no knowledge of the execution or assignment of such mortgage ; that by the deeds from Munger and wife and Munger’s assignee a perfect title to said land was conveyed to Rockwell, and his mortgage note paid and mortgage discharged; that those deeds were duly recorded, so that Rockwell had perfect title of record; that these defendants made their attachment while the title of record remained in Rockwell and while Rockwell was in possession; and that they thereby obtained a lien that was valid as against the’petitioner.</p> <p>The answer was traversed and testimony taken. There was testimony tending to prove Rockwell’s indebtedness and also the alleged assignment to the petitioner.</p> <p>The first-named case was heat'd by Pierpoint, Chancellor, at the January Term, 1878, on bill, answer and testimony, and decree rendered for the orator against all the defendants. Appeal by the defendants.</p> <p>The petitionees’ mortgages were paid and discharged by the conveyances of Munger and wife and the assignee to Rockwell. Pomroy v. Stevens, 11 Met. 244. The record showed title in Rockwell at the time of the attachment. Thomas v. Warner, 15 Vt. 110.</p> <p>Munger is not liable to the petitioner. The petitioner is estopped from claiming any lien prior to that of an attaching creditor who attached without notice of his claim. McCabe v. Farnsworth, 27 Mich. 52 ; Hides v. Cram, 17 Yt. 449.</p> <p>The mortgages were not assigned to the petitioner.</p> <p>The bill alleges that the defendants have title by attachment, and that the lien by attachment still exists. No proof of that is necessary. White v. Yaw, 7 Yt. 357.</p> <p>This is a question between two creditors, one of whom kept his security concealed, and the other of whom has attached on the faith of apparent title in the debtor. Carter v. Champion, 8 Conn. 548 ; Stanley v. Perley, 5 Greenl. 369. See also Bigelow v. Topliff, 25 Yt. 273.</p> <p>On the facts stated in the petition, the petitioner is not entitled to relief as against these defendants. The petitioner’s title must be stated with clearness, and every right must be taken most strongly against him, and no unnatural intendments are to be made in his favor. Story Bq. PL ss. 452 a, 508 a. He must prevail, if at all, on the case stated in the petition; and if this is deficient, he is not aided the testimony, nor would he be aided even by an admission in the answer. Thomas v. Warner, 15 Yt. 110; Sanborn v. Kütredge, 20 Vt. 632. To entitle Rockwell to the benefit of the doctrine of subrogation, he should have paid the note pursuant to a legal obligation. A voluntary payment would give him no equitable interest in the mortgage; and so he could assign none to the petitioner. The petition does not aver that Rockwell was in any way liable on or connected with the note, as indorser, surety, guarantor, or otherwise. The averment of the condition of the mortgage is not an averment of the facts as set forth in the condition. But treating the recital of the condition as an averment, the petition fails to allege any perfected legal duty on Rockwell’s part to pay the note. That the note was indorsed by him as surety does not imply an absolute, unconditional undertaking on his part to pay the note. Center Turnpike Co. v. Smith, 12 Yt. 212; Sanford v. Norton, 14 Yt. 228.</p> <p>The petition alleges liens by the defendants by way of attachments, and nothing is alleged that goes to qualify or impair the apparent equity of the defendants.</p> <p>The conveyances to Rockwell did not operate to merge or extinguish the mortgage title. There can be no merger unless the two estates unite in the same person in the same right. The conveyances gave Rockwell only the equity of redemption. Myers v. Brownell, 1 D. Chip. 448 ; Marshall v. Wood, 5 Vt. 250 ; Pratt v. Bank of Bennington, 10 Yt. 293.</p> <p>The recording of the assignments was not necessary to their validity, and the defendants Benner and wife were bound to take notice thereof. They were not justified in assuming from the absence of an assignment of record that none had been made. Phelps, J., in Pratt v. Bank of Bennington. Such is the rule as between an assignee of a prior mortgage and a subsequent mortgagee without notice.' A fortiori a subsequent attaching creditor should not be permitted to claim priority over an outstanding mortgage in like circumstances.</p> <p>It cannot be claimed that the equities of a creditor are greater than those of a purchaser. Fitzsimmons v. Joslin, 21 Yt, 129; Poor v. Woodburn, 25 Vt. 234; Hackett v, Callender, 32 Yt. 97.</p>

Ejectment for land in Starksboro. The case was tried on an agreed statement of the following facts.

Case for deceit in the sale of an account. Judgment was rendered against defendant Avery by default. Fitts alone defended under the general issue. Trial by jury at the December Term, 1878, Piekpoint, 0. J., presiding. The facts, and the ground of the exception, taken by the plaintiff, are stated in the opinion of the court.

Replevin for two sheep and two lambs, brought before a justice of the peace, and appealed to the September Term, 1878. The ad damnum in the writ was $20, and the return of the officer showed that the property was appraised at $6 at the time it was replevied. The plaintiff moved to dismiss, for that the County Court had no appellate jurisdiction; and the court, Dunton, J., presiding, sustained the motion, pro forma, and dismissed the appeal; to which the defendant excepted.

<p>Trespass for assault and battery. Pleas, general issue and son assault demesne. Replication, de injuria, and joinder. Trial by jury, September Term, 1878, Dunton, J., presiding.</p> <p>The plaintiff’s testimony tendedlo show that at the time of the commission of the wrong complained of, he was plastering at the house of one Fitzgerald, in Rutland, when the defendant, who was the plaintiff’s nephew, came in to inquire about getting sand to plaster his house, whereupon conversation ensued wherein the plaintiff accused the defendant of taking his letters from the post-office, which the defendant denied, saying that he had a post-office box of his own, and had a middle name; that the plaintiff replied that the middle name was for his mother’s people, and that they were a bastardly breed ; and that the defendant thereupon seized him and beat him severely, striking him on the head and leg with a piece of board, and otherwise injuring him. The plaintiff admitted that he had been drinking, but denied that he had drank to excess.</p> <p>The defendant’s testimony tended to show that after the conversation had gone on as detailed by the plaintiff, the defendant replying with some spirit, the plaintiff became angry and began to throw mortar at the defendant; that the defendant thereupon seized him and held him awhile ; that afterwards when they had become separated and when the plaintiff was throwing mortar at him, he threw a piece of inch board a foot square at the plaintiff, hitting him on the leg. The defendant further testified that the plaintiff had been drinking freely and was much excited; denied assaulting the plaintiff, saying that whatever beating he gave the plaintiff he gave, in reasonable self-defence, and after the assault made by the plaintiff as already stated.</p> <p>The court charged as to the burden of proof that under the general issue the burden was on the plaintiff to show that he was assaulted by the defendant, and further as follows:</p> <p>The defendant admits that he assaulted the plaintiff, but, under his plea, hs says the plaintiff actually committed the first assault, and that what was thereupon done by him was in the necessary defence of his person. The burden of proof is upon the defendant, under this plea, to show that the plaintiff committed the first assault, and that what was done by him (defendant) was done in the necessary defence of his person.</p> <p>To that portion of the charge the defendant excepted.</p> <p>The charge was erroneous. The defendant did not admit an assault. The acts to which he testified did not constitute an assault. Bouv. Law Diet., title, Assault; 3 Bl. Com. 120 ; 2 Hawk. P.. C. s. 62.</p> <p>The error may have misled the jury. At any rate, if the ruling was wrong it cannot be assumed that there was anything in the case to correct it. Johnson v. Burden, 40 Yt. 667 ; Brothers v. Morris, 49 Yt. 460.</p> <p>Under the plea of son assault the burden was on the defendant. 2 Greenl. Ev. s. 95; 1 Chit. PI. 501, 508, 509, 592; 3 Chit. PI. 1067, note ; 2 Phil. Ev. Cowen & Hill’s notes, 810, note 220 ; 812, 818, note 223; Blood v. Adams, 33 Yt. 52 ; Boring v. Aborn, 4 Cush. 608 ; Burnham v. Allen, 1 Gray, 496.</p> <p>Under the old English practice the defendant would have had a right to go ahead at the trial. Bedell v. Russell, Ryan & Moody, N. P. 293 ; Fish v. Travers, 3 C. & P. 698.</p>

This was a case brought to recover for the support of. alleged transient paupers. The case was referred, and the referees reported the following facts: On March 19, 1877, the wife of Rodolphus Briggs, who was also a niece of the plaintiff’s wife, was taken sick at the plaintiff’s house in the defendant town.

Case for injury upon a highway. Plea, the general issue, and trial by jury, March Term, 1877, Wheeleb, J., presiding. It appeared that the alleged injury, which was an injury to the plaintiff wife, was received on Sunday, May 24,1874; and that a written notice thereof was delivered to one of the defendant’s selectmen on June 5, following.

Trespass qua. elau. Plea, general issue, and trial by the court, September Term, 1876, Wheeler, J., presiding.

Leach, ordering the defendant, executor of the last will of her husband, Ebenezer Leach, to pay her certain sums and allow her the use of certain property for the support of herself and her family during the settlement of the estate. There were two petitions and two orders, and an appeal from each order; and the appeals were to be heard together as one case.

. Assumpsit. The declaration contained the common couuts, and also a special count alleging that on November 21, 1870, the Sutherland Falls Marble Company, a corporation existing under the laws of Vermont, was doing business at Sutherland Falls, in Rutland ; that John B. Page, Redfield Proctor, and defendant were stockholders in said company, and owned a controlling interest therein ; that the plaintiff was also a stockholder therein ; that said company had prior to that…

Assumpsit on a promissory note. Pleas, general issue, payment, plea of a special agreement operating payment, and offset.Trial by court, September Term, 1878, Dunton, J., presiding. The note was for $728, payable to the plaintiff’s intestate, or bearer, on demand, with interest annually.

This was an action to recover the rent due under an indenture bearing date September 5, 1868, whereby the plaintiff demised to the defendant certain premises in Rutland for the term of seven and one half years from October 1st then next.

<p>General Assumpsit, with an amended declaration containing counts for goods sold and delivered by plaintiff and his former partner. The defendant did not appear nor plead, but subsequent attaching creditors appeared and pleaded the general issue. Trial by the court, September Term, 1878, Dunton, J., presiding.</p> <p>It appeared that prior to September 19, 1877, plaintiff and one Osgood were partners in trade in Brandon, under the name of Simonds & Osgood, and that defendant had bought goods of them to a considerable amount, for which he then owe^ them ; that on that day plaintiff, bought out his partner, who duly conveyed to plaintiff all his interest in the partnership property, including “ all and any choses in action, notes, demands, and accounts and debts due to or to become due to said firm,” and went out of the business, and had nothing more to do with it; and that the plaintiff went on with the business in his own name without other change, and continued to furnish the defendant with goods as before, charging them on a new page of the ledger, until he had furnished goods to the amount of $42.85 in addition to what had been sold at the time of the 'dissolution of the copartnership. It appeared also Jhat some time after the dissolution the plaintiff told the defendant that he had bought out his partner and owned the copartnership accounts, including that of the defendant, and asked the defendant to pay, to which the defendant replied that he understood the plaintiff had bought out his partner and owned the accounts, that the account was larger than he supposed, but that he -would come in and settle it with the plaintiff; that the plaintiff again asked the defendant to pay, and he promised to pay the plaintiff on a day that was then agreed on ; that the defendant did not pay the account as agreed, nor any part of it, and that after the day on which he agreed to pay had passed, the plaintiff brought this action. It did not appear that the account for goods sold before the dissolution had ever been charged over to any one, or balanced, or carried to the plaintiff’s account.</p> <p>The subsequent attaching creditors claimed that the plaintiff could recover only for goods sold subsequent to the dissolution of the copartnership, but the court rendered judgment, proforma, for the plaintiff for the whole amount, including goods sold before the dissolution ; to which the subsequent attaching creditors excepted.</p> <p>A defense by a subsequent attaching creditor is in all cases as extensive as a defence by the debtor himself, and sometimes more extensive. Harding v. Harding, 25 Vt. 487 ; Ohaffee v. Malarhee, 26 Vt. 242.</p> <p>The language of the defendant when asked by the plaintiff to pay, imports merely a purpose to pay — not a promise on which an action may lie. Fish v. Brachett, 32 Vt. 788.</p> <p>But, to enable the plaintiff to recover, there should have been not only an absolute promise but new consideration therefor. 1 Chit. PI. 10. See Stiles v. Farrar, 18 Vt. 444.</p> <p>It appears that the partnership had been dissolved, and the plaintiff had bought out his partner and owned the whole of the debt due from the defendant. On those facts he may maintain this action in his individual name. Evans v, Silverlooh, 1 Peake, 31; Oollyer Part. ss. 644, 658. It further appeal’s that the defendant was notified by the plaintiff that he owned the debt, and promised to pay it. There is a special declaration declaring upon that promise to the plaintiff, and an action may be maintained upon that promise, in the plaintiff’s individual name. Austin v. Walsh, 2 Mass. 401; Moar v. Wright, 1 Vt. 57 ; Eaton v. Whitcomb, 17 Vt. 641. The fact that the plaintiff had bought and owned the debt, is a good consideration for the promise to pay. Moar v. Wright, supra.</p> <p>Subsequent attaching creditors cannot make the technical defence of the non-joinder of Osgood. They are confined to the merits. Gen. Sts. c. 30, s. 44 ; Farr v. Ladd, 37 Vt. 156 ; Fletcher v. Bennett, 36 Vt. 659.</p>

Assumpsit. The case was referred, and the referee reported the following facts. - On August 10, 1868, the defendant, for the accommodation of the Field Marble Co., executed a promissory note of that date for $600, payable to said company, or order, in three months, and the company procured it to be discounted by the plaintiff. It was not paid at maturity, and was renewed from time to time until June 18, 1869.

Case for digging a channel from a spring on the plaintiff’s land to and under a wall marking the boundary of said land, and ■ thereby diverting the water so that the plaintiff was compelled to use it after it had run three rods in the sun. The action was brought to the December Term, 1877.

This was an action brought to recover for plaintiff’s services as an attorney in the prosecution of Solon S. W'ooley for the murder of his brother, Franklin A. Wooley, in the defendant town, on October 28, 1876.

These cases were in general assumpsit. Pleas, general issue, with notice of special matter, in each case, and trial in each by the court, at the September Term, 1877, Ross, J., presiding. The plaintiffs, who were manufacturers of gas-meters in Philadelphia, sought to recover of the defendant, who resided in Brattleboro, for two lots of meters that they had sent to the Brattleboro Gas Company.

<p> Contract. Conditional Sale. </p> <p>In case and trover for driving away and selling a stag, attached by plaintiff as the property of E., there was evidence that about two months before attachment, defendant sold "and delivered the stag to'E. for $45, it being agreed that E. should pay $10 down and the residue in thirty days, or the stag should be returned and the $10 forfeited ; that defendant then told E. the agreement must be in that way, or it woirld have to “be on record;” and thattlie $10only was paid as agreed. The court directed a verdict for plaintiff. .Held, that there was evidence tending to prove that all E’s right under the contract came to an end within thirty days, and that thereafter defendant had no lien on the stag, as sold conditionally ; and that the case should have been submitted to the jury with instructions.</p>

<p>General Assumpsit. The case was referred, and the referee reported the following facts.</p> <p>In March, 1878, the plaintiff, who resided in Westminster, agreed with the defendant, who resided in Hatfield, Massachusetts, to sell him certain tobacco in three lots, at twelve, twenty, and twenty-five cents per pound ; and the defendant came to the plaintiff’s, where the tobacco was, and he and the plaintiff packed the tobacco of the twenty cent and the twenty-five cent lots in boxes, and weighed it. The defendant then instructed the plaintiff to pack that of the twelve cent lot, of which there were 8,050 pounds, and went home, first telling the plaintiff that he should probably return in a few days to see about it. The tobacco so packed, which, at the agreed prices amounted to $2,850 in value, was forwarded to the defendant by railroad, and duly received. The defendant' immediately paid $2,523 towards the same, leaving $327 due thereon to the plaintiff. After the delivery of the tobacco of the first two lots, as aforesaid, that of the other lot was packed according to direction, and made ready for delivery on receipt of payment therefor. Correspondence was then had .between the parties, wherein the plaintiff urged the defendant to pay for the remainder, and the defendant refused to pay until the remainder was forwarded. The defendant claimed that by the contract all of the tobacco was to be delivered at the railroad depot at Westminster, and there paid for when delivered, that that was the reason why he did not pay, and that he could have made more on what was not delivered than he did on what was delivered ; and claimed damage by way of recoupment for the nondelivery of the remainder as aforesaid. The plaintiff contended that the tobacco was to be delivered where it was when sold. The defendant did not again come to the plaintiff’s, nor give notice of any time when he would receive the rest of the tobacco at the depot, nor provide means for paying for it there when delivered. The referee found that by the contract the tobacco was to be delivered on the premises where it was packed, but that it was understood that after delivery the plaintiff was to make no charge for taking it to the depot, which was near the plaintiff’s. The plaintiff was permitted to testify subject to objection that he received $697.18 from Edward Stebbins, for twenty-two cases of the third lot, of which there were in all twenty-three cases, that he did not know what he reeeived for the other case, that that was the best offer he could get, that tobacco had been falling ever since, and that at the time he testified he could' not get for the tobacco half what he sold it for. He also testified that he kept the third lot about a year before he sold it. From that testimony the referee found that the plaintiff lost on the third lot, after allowing for the case that he kept, the sum of $217.82, which with interest thereon and $40 for interest lost before the sale, amounted to $310.07. He also found that the plaintiff used reasonable diligence in disposing of the third lot, and received its fair value by the sale to Stebbins. The referee found for the plaintiff to recover the $327, with $78.48 interest thereon, and the further sum of $310.07, if, on the pleadings and the facts reported, the court should be of opinion that he was entitled thereto.</p> <p>At the March Term, 1877, the court, Barrett, J., presiding, rendered judgment for the plaintiff for the larger sum, deducting the $40 for interest lost before sale; to which the defendant excepted.</p> <p>In no event should the court have rendered judgment for more than the smaller sum — $405.48 including interest. But the contract was entire, and the failure of complete fulfillment was due to the unwarrantable act of the plaintiff. The plaintiff, therefore, should not recover for the tobacco delivered and reeeived. It is fairly deducible from the report, that the defendant was to deliver the tobacco at the depot, and that the defendant was under no obligation to pay until it was so delivered. But if it was to be delivered on the premises, and the plaintiff was to haul it to the depot free of charge, the defendant was under no obligation to pay anything until it was all delivered. Thus, the plaintiff not having performed, can maintain no action. The delivery of all the tobacco and the payment of the purchase money were concurrent, and performance or a tender of performance by the plaintiff was a condition precedent to his right of recovery. 1 Chit. PI. 321, 322; Stark v. Parker, 2 Pick. 267 ; Kelehum v. Evertson, 13 Johns. 359 ; Bank of Columbian. Hagner, 1 Pet. 455 ; Jones v. Marsh, 22 Yt. 144.</p> <p>The amount allowed the plaintiff for what he lost on the subsequent sale is for damages sustained on account of a breach of a special contract, and is not recoverable under the common counts. ■1 Chit. PI. 340 ; Stephen PI. 318; Cutter v. Poioell, 2 Sm. Lead. Cas. note 35; Chesapeake f Ohio Canal Co. v. Knapp, 9 Pet. 541; Way v. Wakefield, 7 Yt. 223 ; Steamboat Co. v. Wilkins, 8 Yt. 54; Ketchum v. Evertson, supra; Mattocks v. Lyman, 16 Yt. 113; Jones v. Marsh, supra; Hemenway v. Smith, 28 Yt. 701; Allen v. Thrall, 36 Vt. 711; Curtis v. Smith, 48 Vt. 116.</p> <p>It makes no difference in this case that the cause was referred. The plaintiff would not have been allowed to file a new declaration counting on the special contract and demanding damages for loss sustained on the re-sale of the third lot of tobacco. Such a declaration would be a demand for other and more damages. It would be for a new cause. Bowman v. Stowell, 21 Vt. 309; Baña v. McClure, 39 Vt. 197 ; Lewis v. Locke, 41 Vt. 11; Dewey v. Nicholas, 44 Yt. 24.</p> <p>No question can be made as to plaintiff’s right to recover the unpaid balance for the tobacco delivered and received. The plaintiff fully performed. Defendant neglected and refused to perform without reasonable excuse. The plaintiff has suffered damage thereby to the amount of $270.07, which the County Court held recoverable. There was such a delivery and acceptance as took the case out of the Statute of Frauds. The title vested. Plaintiff had the right to re-sell after defendant’s refusal to perform, and may hold the defendant responsible for the loss. Chit. Cont. 431; 2 Parsons Cont. 484; Jones v. Marsh, 22 Yt. 144.</p> <p>A special declaration was not necessary to recover for the loss on the third lot. When a cause is referred, the controversy and all that pertains to it — all that by any proper amendment could be brought into it — is referred. The cause is to be tried on its merits, without regard to the form of the declaration or the precise issues raised on the pleadings. Laport v. Bacon, 48 Vt. 176.</p> <p>The referee did not err in permitting the plaintiff to testify to what pertained to the re-sale of the tobacco. But whether he did or not, there is nothing in the exceptions to bring the objection here'for revision. Johnson v. Dexter, 37 Yt. 641; Q-raham v. Stiles, 38 Yt. 578.</p>

<p> Fnfor cement of a Married Womqn’s Beits against Her Separate Property. </p> <p>Contracts entered into by a married woman for necessaries for herself and family, or for thebenefitof her separate estate, on the credit of such estate, may be enforced against it in equity to the extent of her interest.</p> <p>In such case the husband cannot interpose against the wife’s creditor his marital right to the use of his wife’s real estate ; for it is his duty, as husband, to supply his family with necessaries, and, as tenant by the curtesy, to supply all things necessary to the enjoyment and conservation of the estate.</p>

<p> Libel. Privileged Communication. Evidence. Burden of Proof as to Actual Malice. Pleading. Damages. ■ </p> <p>When a defamatory communication is fairly made in the discharge of some public duty, moral or social, the occasion prevents the inference of malice that the law ordinarily draws from such a communication, and affords a qualified defence, depending on the absence of actual malice. Thus: In case for libel it appeared that the Windham County Association, of which plaintiff and defendant were members, was an association of Congregational ministers, organized in accordance with Congregational usage, and having an association covenant and by-laws, to which any Congregational minister residing in the county and of good standing, might, by vote of the association, be admitted, and from which, on removal from the county, he might be dismissed by a letter commending him to other like associations in other counties; and that such associations were recognized by Congregational churches, and membership thereof was considered among the churches as evidence of good ministerial standing. At one of its regular meetings the association, being actively incited thereto by the defendant, adopted by a unanimous vote the following preamble and resolutions: “Whereas, charges of untruthfulness, deception, and creating disturbance among the churches, have been made against Rev. David Shurtleff [the plaintiff] , a member of this body, therefore: Resolved, that we hereby withdraw fellowship from him till the 7th day of August next, at which time he is invited to appear before our body, at Wilmington, and show reason why he should not be finally dismissed without papers. Resolved, that the scribe be instructed to send a copy of this minute to the brother, and also to The Congregationalist and The Vermont Chronicle.” Agreeably to the vote and resolutions the scribe sent copies thereof, showing the votes, including the defendant’s, to the newspapers referred to, and they were therein published. It appeared that the former of those newspapers was a denominational paper published at Boston, Mass., and circulated among Congregationalists throughout New England; that the latter was a like paper published at Montpelier, Yt., and circulated among Congregationalists in Vermont; and that both were at the time of the publication, organs of Congregational churches, and of organizations and institutions connected therewith. Eor several years prior to the publication complained of, reports of difficulties between plaintiff and his parishioners were in circulation, and defendant had received letters in relation thereto from time to time from ministers and parish committees in various places where plaintiff was preaching, giving unfavorable accounts of his career, and some of them speaking of him as unfit for the office and work of the ministry, and asking defendant to do what he could to restrain him. Held, that defendant’s action before, and as a member of, the association, and the publication of the preamble and resolutions which were the result of that action, were privileged.</p> <p>Held, also, that the burden of proof as to whether defendant was actuated by actual malice was on plaintiff.</p> <p>Plaintiff was permitted to show that in consequence of the publication complained of, he lost the privilege of half-fare tickets on the railroads. The declaration contained no allegation of such damage. Held, that in the absence of such allegation, such evidence should not have been received, as such damage was not the natural probable result of such publications.</p> <p>Plaintiff was permitted to put in evidence a paper signed by one hundred and forty-two persons living in a town where he had preached, attesting his good character at a time about six years prior to the time of publication. Held, that the paper was not evidence, and that its admission was erroneous.</p>

General Assumpsit. Plea, general issue, and trial by the court, September Term, 1878, Ross, J., presiding. The plaintiffs sought to recover for medicine furnished to the defendant’s wife.

Case for negligence in discharging a Roman candle. Plea, general issue, and trial by jury, May Term, 1878, Barrett, J., presiding. ' It appeared that on the evening of Saturday, July 3, 1875, the defendant, a lad thirteen or fourteen years old, was discharging fireworks in the street in the village of Woodstock, in presence of a large crowd, when, some of the smaller boys in the crowd having gathered so close to the defendant as to obstruct the view of other's who were…

<p>Case for negligence in tbe discharge of a Roman candle. Plea, general issue, and trial by jury, May Term, 1877, Barrett, J., presiding.</p> <p>It appeared that on the evening of Saturday, July 8, 1875, the defendant, a lad thirteen or fourteen years old, was discharging fireworks in the street in front of the Eagle Hotel, in the village of Woodstock, in presence of a large company of people, old and young, when, some of the crowd having gathered so close to the defendant as to obstruct the view of others who were further away, some one called out for them to stand back and for the defendant to direct his discharges down street, whereupon the defendant, who was in the act of discharging a Roman candle and had discharged two balls up street at a high elevation, turned the candle down street and lowered it so that a third ball went, just above the heads of the crowd, and a fourth went still lower and struck the plaintiff’s son, a lad of about the same age, who stood at a little distance, by the street side, and not in that part of the crowd that was nearest to the defendant, nor exposing himself to injury except by being where he was, thereby lacerating and badly burning him and causing a troublesome sore that required medical treatment for about four weeks, and care in the way of dressing, &c., for a still longer time.</p> <p>The defendant requested the court to charge as follows :</p> <p>1. The plaintiff cannot recover unless the jury find that the defendant was guilty of gross negligence and carelessness in the management of the fireworks.</p> <p>2. In determining whether the defendant was guilty of negligence, the jury must find, in order to entitle the plaintiff to recover, that the defendant did not exercise such ordinary care as a person of his age should ; that they could not hold him to the same degree of care that they would a person of full age.and strength of mind.</p> <p>3. That if the injury arose from the plaintiff’s son’s own neglect and folly, or if that contributed to the accident, he cannot recover.</p> <p>The court declined so to charge, but on that subject charged that if the injury in question was the result of negligence or recklessness on the part of the defendant, the cause of action was made out, and, in effect, that negligence should be determined with reference to the dangerousness of the material that was being used.</p> <p>To the refusal of the court to charge as requested, and to the charge as given upon the point stated, the defendant excepted. ..</p> <p>Yerdict for the plaintiff.</p> <p>The defendant was doing what he had a right to do, and is not liable unless he was guilty of gross negligence therein. And neglect must be proved, it cannot be inferred. Reynolds v. Railroad Go. 58 N. Y. 248 ; Holly v. Boston Gas Light Go. 8 Gray, 123.</p> <p>. One is held to the exercise of such care only as may be reasonably expected, having reference to age, &c. Shearm. & Redf. Negl. 57; 13 Am. Law Reg. 459; 14 Am. Law Reg. 124, and cases passim.</p> <p>If there was any contributory negligence on the part of plaintiff’s son, then plaintiff cannot recover. The plaintiff must show that his son was not in fault. Shearm. & Redf. Negl. 42, 45 ; Trow v. Vt. Central Railroad Co. 24 Vt. 487 ; Pierce v. Whit-comb, 48 Vt. 127, and cases passim.</p> <p>The charge was favorable to the defendant. Shearm. & Redf. Negl. s. 24 ; Castle v. Buryea, 32 Barb. 480 ; Clark v. Eighth Av. Railroad Co. 32 Barb. 657.</p> <p>The court was right in refusing to charge in accordance with the first and second requests. Shearm. & Redf. Negl. ss. 50, 57 ; McMahon v. Mayor of New York, 33 N. Y. 642; Robinson v. Cone, 22 Vt. 213.</p> <p>The same as to the third request. There was nothing to show negligence on the part of the plaintiff’s son. The court need charge on no point not raised by the evidence. Wetherby v; Foster, 5 Vt. 136 ; Holbrook v. Hyde, 1 Vt. 286 ; Campbell v. Bay, 16 Vt. 558 ; Manwell v. Briggs; 17 Vt. 176. Besides, that request was not in accordance with the law. Vaughan v. Porter, 16 Vt. 266.</p>

This was an appeal from an order of removal of Ruel L. Rugg, a pauper, with his family and effects, from the plaintiff to the defendant town.

The bill, the material allegations of which appear from the opinion of the court, was brought to compel the defendant, as administrator de bonis non of the estate of David H. Sumner, deceased, to pay the sum due on a note given by Benjamin H. Steele, deceased, executor of said Sumner’s will, in settlement of a claim against the estate of said Sumner, or to procure said claim to be placed on the list of claims allowed by the commissioners for the allowance of claims against…

This was an action brought before a justice of the peace under s. 7, c. 24 of the Gen. Sts., for a penalty for removing a gate from across a pent road.

The bill alleged that the orators, Laura Gilkey, Louisa Buck-man, and Harriet Gibbs, wives respectively of the orators Charles Gilkey, William Buckman, and Ethan R. Gibbs, and the orators Rebecca Shepard, and Roland M. Shepard, with the defendant John W. Shepard, and Lucy Emeline Jones, wife of Sylvester Jones, were all the children of Lucy Shepard, late of Windsor, deceased; that on November 15, 1833, Asa Aikens, then a resident of Windsor, by deed of that date in due…

Petition fob Foreclosure. The petition was answered. The facts are stated in the opinion of the court. The case stood on petition and answer, and at the December Term, 1878, the court, Barrett, Chancellor, dismissed the petition, pro forma, without hearing, with costs. Appeal'by the petitioner. The receipt of the insurance money opened the decree as to the petitioner. 1 Washb.

This was a petition by Sylvester Merrill for the foreclosure of a mortgage from the defendant Byron to Justus W. French, and assigned to the petitioner. The petition alleged that defendants Allen L. Pease, Leonard Macia, Jere Richards, and George B, Macomber, claimed an interest in said premises, and prayed for foreclosure against all of them. The defendant Pease answered, and filed a cross-petition, the allegations of which are stated in the opinion of the court.

Petition por Foreclosure. The petition alleged execution of a mortgage to Nelson L. Boyden, conditioned for payment of a promissory note for $4,215.40, signed by J. R. & A. B. Crapo, R. B. Goss, and the defendant; assignment thereof by Boyden to the petitioner Downer; assignment by Downer to Mariot G. Howe ; assignment by Howe to the petitioner Pierce; and ownership of an interest therein by Downer and the petitioner Kenney.

Assumpsit on a policy of insurance, insuring a saw-mill and machinery therein in Hinesburgh against fire. Plea, general issue, and notice of special matter. Trial by jury, May Term, 1878, Barrett, J., presiding. The plaintiffs proved title to the property insured, and introduced the policy in evidence ; and the application, which was in writing, signed by the plaintiffs, went into the case as part of the policy.

This was an indictment charging the respondent with burning his own cider-mill in Pomfret, with intent to defraud the Windsor County Mutual Fire Insurance Company, in which said buildings were insured. Plea, not guilty, and trial by jnry, December Term, 1878, Barrett, J., presiding.

Indictment for poisoning hogs. Plea, not guilty, and trial by jury, May Term, 1877, Barrett, J., presiding. On cross-examination of Rose Glynn, a witness introduced on the part of the State, she was asked, referring to the respondent, and answered, as follows: Q. Have you ever told Samuel Stewart or his wife that you would get the old man into State prison, if you could ? A. No, sir, I never did.

Case on a receipt given to the plaintiff, a deputy sheriff, for property attached.

Case for slander. The defendant was attached “ to answer,” in the words of the writ, “ to Nancy Gustin, of” &c., “ a married woman, and whose husband, whose name is Walter Gustin, is an insane… Held: pro forma, that the action was well brought in the name of the plaintiff alone ; to which the defendant excepted. The rule of the common law is, that a feme covert cannot sue without joining her husband.

Trover for a wagon. Plea general issue, and trial by the court, June Term, 1878, Powers, J., presiding. It appeared that Randall Hall, plaintiff’s brother, originally owned the wagon and had possession of it until his death, when his administrator sold and delivered it to the defendant, of whom the plaintiff afterwards demanded it.

Trespass and case for debauching the plaintiff’s daughter, per quod servitium amisit. At the June Term, 1878, the defendant set the case not for the jury; but the court, finding no sufficient cause for continuance, rendered judgment for the plaintiff, and continued the case for the assessment of damages. At the December Term the question of damages came on to be tried by a jury, Redfield, J., presiding.

Trustee Process. It appeared from the disclosures of the trustees that on September 30, 1876, the trustee Pierce gave to the defendant his promissory note of that date for $500, payable to the… Held: that the note must be discounted, to come within that provision, and that the taking of it as collateral would not protect it.

Case against a sheriff for the default of his deputy. Plea, the general issue, and trial by the court at the December Term, 1878, Redfield, J., presiding. The facts are stated in the opinion of the court. Judgment for defendant, and exceptions by plaintiff. Judgment should have been for the plaintiff. An attachment on claims, some of which are not due or are fraudulent, is void as to subsequent attaching creditors. Foster’s attachment was therefore void.

Debt on a jail bond taken from John M. Little as principal, and the defendant as surety, by the sheriff of Caledonia County, and by him assigned to the plaintiff. The declaration alleged that by a clerical error the bond set forth that the execution on which Little was committed, issued on a judgment recovered before Henry W. Adams, a justice of the peace; and was signed by said J. D. Abbott, Justice of the Peace. The defendant craved oyer of the bond, and demurred.

Covenant on a policy of insurance on the life of the plaintiff’s intestate. Plea, general issue, and several special pleas in bar. Trial by jury, September Term, 1878, Pierpoint, C. J., presiding.

<p>Habeas Corpus. Probate Court. Imprisonment for Contempt. Imprisonment for Debt.</p> <p>On October 14, 1876, the Probate Court ordered tlie executor of the will of L. to pay L’s widow $12 per month during the settlement of the estate. On January 14, 1877, it ordered him to pay her the further sum of $18 per month, to begin February 10, 1878. On February 24, 1878, .the widow brought a petition to said court alleging non-compliance with those orders, and praying that the executor be cited to show cause why he should not be committed for contempt. The executor appeared on the 25th, and a hearing was had. The case was continued to March 3, 1879, when the court adjudged that the executor was in contempt,'and ordered him to be committed to jail, to remain till he should “obey and perform said orders,” or “otherwise be delivered by due course of law,” and, on warrant reciting those orders and non-compliance therewith, the executor was committed to jail. He thereupon brought habeas corpus. Held, that if the order of commitment was for imprisonment as punishment for contempt, it was irregular, as being without limit; and that if the order was for imprisonment until the executor purged himself by paying the stipends, he was held in contempt in matters which had not occurred at the time of the hearing, and in which he had had no hearing and no opportunity to be heard.</p> <p>Held, also, that the orders for payment created a mere judgment debt, and that the Probate Court had no power, any more than courts of general jurisdiction, to imprison for debt, and that the executor should be discharged.</p>