Volume 6 — Vermont Reports

This was an action of trespass brought against the defendants to recover the value of a small quantity of cloth, which, on trial it appeared, was sold by Sanborn, one of the defendants, on a pretended execution issued by Cornelius Stilphin Jr. as Captain of a company of militia, on an amercement of the said Brainard, for delinquency of military duty.

This was an action of debt on judgement rendered in a suit on jail-bond, and brought in the name of the Sheriff. Plea, a set-off of a demand against one Jones, the original creditor, for whose debt the bond was taken. Replication, that the plaintiff’s demand was assigned to one Bellows, and notice given to defendant before the execution of the note pleaded in offset. The rejoinder traverses the notice.

This was a suit originally commenced before a Justice, appealed to the County Court, where an auditor was appointed, who reported that he found due the plaintiff .f 12, 40 cts., together with the following facts : “ That at the trial, the defendant exhibited no account, and the plaintiff exhibited an account consisting of two items amounting to ten dollars, which your auditor finds were delivered by the plaintiff to the defendant in February, 1828.

This was an action upon a note dated December 17th, 1814, and payable by the 17th of December, 1819, given by the defendant to the plaintiff and one Curtis and Edmund, as executors of the estate of Daniel Ryan: Both Curtis and Edmund deceased long previous to the commencement of this suit.

When the action was called for trial, and before the jury were empannelled, the defendant offered the plaintiff to permit him to take a judgment on the first count in his declaration, which the plaintiff declined. The cause proceeded to trial, and the jury found for the plaintiff on the first count, and for the defendant on all the other counts. The plaintiff claimed the costs of the jury trial, and the defendant claimed his cost on the counts on which he prevailed.

This was an action of assumpsit originally commenced before a justice of the peace, demanding in damages one hundred dollars. The declaration contained a special count on a written contract, alleging that the plaintiff agreed to work for the defendant, as a joiner, for a year, the defendant at the same time agreeing to furnish the plaintiff with work, &c., and at the expiration of the time to pay him one hundred and eighty dollars.

<p>The High Bailiff has power* when the Sheriff is committed to jail on execution, to take of him a jail bond for the liberties of the prison, and on breach thereof, to assign the same to the creditor.</p> <p>jin an action on a bond, the words ((writing obligatory1* imply signing and sealing, j and are sufficient.</p> <p>f A variance between the bond and declaration cannot be reached by demurrer, unless be first spread on the record by oyer.</p>

This was an action for taking and conveying away a stove. Plea, 1st, general issue — 2d, licence to Chapin and the other defendants, who were his servants, and traverse. On the trial, the defendant proved that the plaintiff procured Chapin to sign with and for the plaintiff a note, and to induce him so to do, turned out to him, among other property, this stove. Chapin did not then take away the stove, but it was then agreed Chapin was to take the same when he pleased.

This was an action of assumpsit for the breach of an agreement by the defendant to kiln-dry, grind and pack for the plaintiffs, at a stipulated price, a quantity of corn. Plea, non-assumpsit. On trial of the cause, it was proved that the defendant had kiln-dried, ground and packed for the plaintiffs, on a contract for the faithful performance of the work, on a stipulated compensation of thirty cents a barrel, 161 barrels of corn meal. .

These were two cases brought before this court, in different ways, for the same ground of objection. The original writs were against the town of Essex, directed to the sheriff of Chittenden county or his deputy, to serve and return, and returnable before a justice of the peace. They were served by the deputy of sheriff Butler, the said Butler being a rateable inhabitant of said town of Essex.

This was an appeal from the commissioners on the estate of J. C. Thompson, deceased, represented insolvent.

<p>A justice has power to adjourn his court to any part of the town in which its original place of sitting has been fixed.</p> <p>A justice has power to adjourn his court after a jury has been drawn, which the officer is proceeding to summon. And</p> <p>In this respect, the statute confines the power of the justice to no particular stage of the proceeding.</p>

<p>The return of a sheriff, on a writ, is evidence in his behalf of the official acts therein contained.</p> <p>The attachment of hay and grain, by leaving copies, agreeably to the statute of 1818, will enable the officer to maintain trespass against any one, who takes or uses-the same.</p> <p>In such case a deputy sheriff, making tho attachment, may maintain the action in his own name.</p>

<p>This was an action on book, referred to an auditor, from whose report the following facts appear:</p> <p>Jonathan Shaw, husband of the defendant, by his will devised his real estate to the defendant for life, arid after her decease, to be left for the support of his two daughters, Sarah and Susannah. He died leaving three sons, Benjamin, (husband of the plaintiff) Daniel and Peter, .and four daughters. After the decease of Jonathan, the defendant was for some time supported by the three sons.— After a few years, an agreement was made between the three sons that Benjamin should take the defendant and support her during life, taking the use of the land, and then to have the land forever. The defendant then went to live in Benjamin’s family, and was there supported by him during his life, he taking the use of the land ; of which land he sold five acres, of which the defendant gave a deed, and Benjamin received the pay. After the decease of Benjamin, his widow (the plaintiff) continued to support the defendant, taking the use of the land in the same way her husband had done, and whenever spoken to on the subject, said, she should try to fulfil the agreement of her husband. After two years and seven months, the plaintiff refused to proceed further, and commenced this action to re-coverfor the support of defendant during said 2 years and 7 months. The auditor adjusted the account, finding a balance for the plaintiff for said support, after deducting the use of the land. The county court, on this report, rendered judgment for the defendant, to which there was exception.</p> <p>— There was no contract between Benjamin Shaw and the defendant. It is true these are facts in the case from which the auditor might perhaps have inferred a contract if he thought himself justified in doing so; but as he has not found any, the court are not at liberty to weigh the evidence and make out a contract by inference which the auditor has not found, ar,d which the court are bound to suppose he did not feel justified in finding; for if he had, it was his duty so to report.— Wood vs. Barney, 2 Vt. R. 369.</p> <p>Admitting that Benjamin Shaw made a contract with defendant to support her, it does not appear by the report that the contract was assumed by the plaintiff without the defendant assented to it; and it does not appear that she even knew that any contract existed. — Skinner vs. Conant, 2 Vt. R. 453.</p> <p>The auditor might have presumed this assent from circumstances, but this is a presumption which he is to make, if it could be made, and not the court. But if the court are at liberty to presume facts, the presumption is that she did assent to it; for it is a fact to which the defendant is a competent witness, and might have proved by her own oath, if it existed. — Vide authorities above quoted.</p> <p>If such a contract was made, as contended for by the defendant, it was void, and the plaintiff is at liberty so to consider it, and recover back whatever has been paid upon it. — 14 John. Rep. 358. — 11 John. 584. — Chitty on Con. 207. — Rice vs. Peri, 15 John. 503.</p> <p>This contract must be binding on both, or neither: But in this instance, neither plaintiff or defendant could recover damages at law for the breach, or compel an execution by resorting to a court of equity, for two reasoes :</p> <p>1st, It is a parol contract for an interest in lands, and therefore void at law. — Swift’s Dig. 191.— 1 Caine’s Rep. 583. — Statute, 166.</p> <p>2d, The plaintiff had not, at the time of the contract, or at any subsequent period, a title to the estate which she was by contract to carry. If any contract can be presumed, from the facts in this case, it was a contract to give Benjamin Shaw, or the person who should execute the contract on his part, a title in fee simple to the real estate of Jonathan Shaw. Now this title was not in the power of the defendant to give.</p> <p>The fee simple of this estate was undisposed of by the will, and rested by descent in the heirs of the testator after the termination of the life estate charged with the support of Sarah and Susannah Shaw, during their lives.</p> <p>This charge upon the estate might not have exhausted the whole estate : If it did, then the right of the heirs at law was gone: If it did not, and any thing remained, they had the benefit. The defendant, therefore, had not the power of making a title to the estate, which, by the contract, she attempted to convey. She could dispose of nothing more than the use and occupation of the premises, during her life. If so, equity will not decree a special performance. — 1 Maddock’s Chan. 410, a.</p> <p>3d, If the defendant was to give the plaintiff a good title to the premises, and it afterwards appeared that she had it not in her power so to do, the plaintiff is at liberty to treat the contract rescinded, and recover back what she had paid upon it, and that too, without waiting to see whether the defendant might ultimately be able to establish a good title or not. Nor would she be bound to accept a doubtful title. — Judson vs. Wass, 11 John. 585.— 5 Taunton, 625.— Wilder vs. Ford, 4 Taunt. 334. — 6 Taunt. 258.— Chambers vs. Griffith, 1 Esp. 150. — Peters. Abr. 463. — Boyd vs. Stone, 11 Mass. 342.</p> <p>There was not such a part performance of the contract on the part of the plaintiff as would take the cause out of the operation of the statute. It probably will not be contended that a special action on the contract could be sustained : And we have already seen that the court of chancery will not decree a specific performance unless it is in the power of the defendant to comply with the decree; which it certainly was not in the present instance. But suppose the defendant had a good title to the premises in fee simple, would a court of chancery, upon the fact stated, decree a specific performance ? In the case of Meech vs. Stone & Perry, (1 Chip. Rep. 189,) the court say, “ When redress is given in the cases of part performance, the true ground on which it is given is that of fraud, which consists not merely in the non-performance of a- promise, but something more;” and afterwards add, “It is examined as a fraud, and the agreement is produced, not merely as an agreement, but as the instrument and means of fraud.” Does this case present, then, any thing more than-the non-fulfilment of a promise? — Meech vs. Stone, 1 Chip. Rep. 189. — Boyd vs. Stone, 11 Mass. 342.</p> <p>If it does, we have not been able to perceive it: So far as there is any performance, it is wholly on the part of the plaintiff: And the court, in Massachusetts, in the case of Kidder vs. Hunt, (1 Pick. 328,) have decided that part performance will not take a case out of the statute, so as to enable the party who has partly executed it, to enforce it against the other.</p> <p>— 1. Where a party agrees to perform one entire and indivisible contract, for a specific sum, the performance of the contract is a condition precedent to his right of recovery; and if, after a part performance, he voluntarily abandon his contract, without any impossibility on his part to perform it, and without any consent or default of the other party, he is not entitled to recover for such part performance'. — 17 John. R. 72. — 12 John. 165. — 19 do. 337. — 13 John. 94 & 359. — rl 4 do. 452. — 14.Mass. 282 & 266.-2 Pick. 207. — 7 do. 181.— 2 Mass. 147. — 4 Mass. 514. — 1 M..& Selw. 290. — 9 Bar. & Cress. 92. — 8 Cowan, 63. — 1 Wendell, 514.</p> <p>The only cases where the party has been entitled to recover, without a literal performance, are those cases where the contract has been waived, or has been substantially performed or accepted by the other party. — See the distinction drawn in 7 Pickering, above cited, and other cases.</p> <p>2. When services are performed under an expectation to receive a particular thing in remuneration, therefor, and not in expectation of a reward or in nature of a debt, if the party so performing the services fail to receive the particular thing, without any fault of the other party, he cannot recover without an expréss promise to pay either before or after the services were performed. So if he had done them under the expectation of a legacy — or left it entirely at the option of the party for whose benefit the services were performed, whether he would pay or not, and how much.</p> <p>This case comes within the operation of the last rule. The plaintiff expected to be remunerated in a particular way, by the estate left by J. Shaw’s will, and it was her own fault she did not receive it. She never expected to make the defendants personally liable, nor did they ever expect to be charged. In support of this last position, the following authorities are in point. — 2 Strange, 278, Osborne, vs. Gov'rs of Guy's Hospital. — 4 Dali. Ill & 130. I Esp. R. 188. — 4 Yeates, Snyder vs. Castor, 353-8.— Owen vs. Bowen, 4 Cam. & Payne, 93.</p> <p>3. But if the first proposition is not true in all cases which might come within its scope, it is true in all that class of cases where a specific thing other than money is to be given as a compensation for the whole and entire performance of the plaintiff’s contract, and the plaintiff, after a-partial performance, refuses to complete the whole.</p> <p>This is not a distinction without a difference, but is well warranted by the foregoing authorities, and stands upon a sound foundation in itself. A party, without fault upon his part, can never be precluded from performing his contract according as he made it. The thing to be rendered may be indivisible of itself, and as all judgments at law are payable in money, it would be a great hardship upon a party to pay money when he had never agreed to, or done no act which by the terms of the agreement would give the plaintiff the right of compelling him. If A agrees to .pay B a particular horse, or a particular lot of land, in consideration B would support him a yedr, it is believed if B, after supporting him six months, should refuse to perform the contract farther, and sue him, a court of law would be troubled to find one adjudged case or one sound principle to sustain the action.</p> <p>But the defendant insists that this contract was void; and the parties cannot be considered, therefore, as having acted under it. They say it is within the statute of frauds. To which we answer,</p> <p>1st, That the statute does not make the contract void, but only takes away the right of enforcing it.— Crosby vs. Wadsworth, 6 East. 602. — 1 Sw. Dig. 260.</p> <p>2d, The contract has been executed. Acts done by a party under a parol contract, are binding upon him the same as though the contract' had- been in writing; and if {je purchases by parol, and pays part of the purchase mon- ^ jg not entitled to rescind the contract and treat it as a *W*llity, and recover for his advances, unless the other Party has rei'used to Perform on his part.: — Dowdle vs. Camp, 12 John. 451. This was the'sole question in this case, and so ruled; and likewise Wells vs. Banister, 4 'Mass. 514. — 13 John. 359, Ketchumvs. Evertson. — 14 John. 452, Caswell vs. Black Biver Manufacturing Company.— Stephens vs. Cushing; Adams’ N. H. Rep. 17.</p> <p>The statute never did apply to executed agreements, but to executory agreements.</p>

This was an action oft assumpsit for labor and materials in repairing the school-house in the district aforesaid.— Plea, non- assumpsit; on which issue was joined to the jury. . The plaintiff offered in evidence the record of said school district No. 10, shewing a regular meeting of said district, and a vote appointing the plaintiff, and P. Benham, and A. G. Tower a committee to repair said school-house.

<p>One illegitimate child can inherit to another illegitimate child of the same mother.</p>

This was an action of assumpsit originally commenced before a justice of the peace, from whose decision an appeal was taken to the county court, where it came on to trial upon the declaration sent up from the justice, on the plea of the general issue, with pleas in offset.

This was. an action of trespass de bonis asportatis tried in the county court. The defendant justified as collector of taxes for the town of Richmond, having seized the goods by virtue of a regular rate-bill and warrant to collect a town tax which was laid in regular town meeting under the following circumstances: One Alger was poor, and had been committed to jail in Burlington, leaving his family in a destitute condition.

This was an action on a penal bond, purporting to have been executed in the state of New-Hampshire, by the defendant, as surety for one Tarleton, and conditioned for the due execution by Tarleton of the office of sheriff of the county of Grafton in that state.

This was an action on'a receipt executed by the intestate to the plaintiff as sheriff of Chittenden county, for certain goods attached by him as the property of one Burn-ham, at the suit of J. Peck.

This was an action on book. Exception was taken, to the auditor’s report, with respect to two items only of the plaintiff’s account. With respect to the first, the objection was, that the plaintiff had given a credit on the charge, which had not expired at the bringing of the suit, but had expired at the time of the audit. As to this, the defendant insisted, that it could not legally be allowed.

This was a trustee process, in which the town of Richmond was summoned as the trustee of an absconding or concealed debtor. The' town of Richmond objected that the process would not lie against a town or other political corporation, and moved to dismiss the proceedings. The court decided that the process could not be sustained, and dismissed the suit.

<p>This was an action upon a promissory note. Plea, general issue, and notice.</p> <p>On this issue and notice, the defendant offered evidence to show, that after he executed the note in question, which was payable on demand, he had a note in his own name against one Jonathan and Amos Rollins, for about one hundred and fifty dollars, which he turned out to the plaintiffs, at their request, as a pledge or collateral security for the note in question. — That the signers of the one hundred and fifty dollar note were abundantly responsible for its payment, and that the plaintiffs commenced this action upon their note, and attached his property without restoring or offering to restore the note pledged as aforesaid. But the court decided that such evidence was inadmissible to show a suspension of the right of action in the plaintiffs, and that the plaintiffs had a right,' by law, to commence this action upon the note of the defendant, without first restoring or offering to restore the pledge so by them taken.</p> <p>The jury having found a verdict for the plaintiffs, the defendant made his exceptions, which were allowed and certified.</p> <p>— The note of Jonathan and Amos Rollins was not delivered to the plaintiffs in payment of the note on which this suit is predicated. The case shows an express agreement to the contrary, and that it was delivered as a pledge or collateral security. Nor Was it a transfer in the common course of business, which may, under certain circumstances, operate as a payment su^ m°d°> or as a temporary suspension of the right of ac-ti°n on °»§inal contraet, but was delivered as. a pledge, and consequently only a special property passed to Chapman & Wilson, and the general property remained in Clough, and was redeemable by Clough, as a right of redemption is incident to the nature of a pledge. Nor had Chapman & Wilson a right to dispose of the pledge, even if there had. been a time limited for the redemption of it. Nor is it a mortgage or conditional sale, by which the legal property passes, subject to a condition of defeasance, or by which the general property is transferred, to become absolute on a certain contingency.— Cortelyou vs. Lansing, 2 Cain. Cas. 200. It is simply a pledge or a “ bailment of goods by a debtor to his creditor, to be kept till the debt be discharged (Jones on Bailment, 118,)'and the point is, whether the acceptance of a pledge by a creditor from his debtor, suspends the legal remedy for the collection of his debt. If this is the true definition of the contract arising from a pledge-, the defendant cannot be entitled to the pledge unless the commencement of the suit by attaching property is a discharge of the debt. . Besides, such a rule would defeat the general object of a pledge; for two securities can be no better than one, if, before an attempt to enforce the one, the other must be extinguished.</p> <p>The authorities fully support the position that the acceptance of a pledge by the creditor from his debtor does not suspend tire legal remedy against the person of his debt- or. — Anon 12 Mod. 564. — -Holt. R. 461, per Holt C. J., South Sea Company, vs. Duncomb, 2 Strange, 919. — Saw-ton vs. Newland, 2 Stark. R. 72. — Chit, on Con. 177.— Story on Bailmen ts, 211.</p> <p>The only case we have seen tending to contradict this doctrine, is that of Cleverly vs. Brackett, 8 Mass. 150; but by attention to the facts in the case, we think the decision does not contravene the grounds we take.</p> <p>— Defendant contends that so long as plaintiffs held on to their pledge, their right of action was suspended. It is an admitted principle in this state, that a creditor cannot proceed against property and body at the same time. Such is the direction given to the officer, in all processes known-to our statute. Nor can any distinction be stated, founded on reason or public policy, between the possession of property by the contract or consent of the creditor, and the attachment of property. It is sufficient for the creditor that he has it; and if he will enforce his debt against the body, the pledge must be given up. It will probably be found that the English law permits the creditor to retain the pledge and pursue the body; but an English court (certainly of chancery) would enjoin the creditor from proceeding, if it were made to appear that the pledgé was sufficient to pay the debt, and order the pledge to be sold and applied : And why should this court turn the party round ?</p> <p>But, the law on this subject, here, results from our peculiar modes of process. In Massachusetts, where process issues in the first instance against debtors’ property or- body, the rule is the same that we contend for. — 8 Mass. Rep. 150, Cleverly vs. Brackett. — 5 Pick. Rep. 178, Sweet vs. Brown. — Story on .Bail. 245. — 18 Mass. 105, Jarvis vs. Rogers. .</p> <p>And the reason why mortgagor’s notes are suable, is that he retains the possession of the property. — 4 Kent’s Com. 132.</p> <p>The retention of the pledge then, does (and in this case justice requires it should) operate as a temporary bar.</p>

This was an action on book, commenced to the county court by writ dated August 27th, 1832, and declaring against defendants as partners under the firm of Curtis & Chamberlin. It was referred to auditors, who reported as follows: The account exhibited by plaintiff, was, Messrs. Curtis & Chamberlin, to Amos Dunning Dr. 1817.. To services as clerk and hand on board your fishing vessel, in the Bay Chaliur, and west of Gaspee, from May 8, to Dec. 1, at $20 per month, 144,66 1818.

This was an action of trespass de bonis asportatis for taking a cow of the plaintiff. Plea, general issue, with notice of special justification.

This was a Bill in Chancery, which alleged in substance, that on the 28th day of March, 1827, the orator signed a note of $ 1000 to the Bank of Burlington as surety for Allen and Warren Murray, and that Harvey Murray was also a surety. — That when said note became due, $250 was paid by said Allen Murray, and a new note given for $750, which vras presented at the bank, and rejected, because it was not signed by Harvey Murray; and that the $1000 note was retained by the bank.…

This was an action on the case, brought against the defendants jointly.

This was an action on book. In the county court it had been referred to an auditor, from whose report it appeared, that by the plaintiff’s book, a number of balances had, at different times, been struck, and the balances carried forward to the defendant’s debit — the last of which, was struck by consent of parties, in April, 1822, and the balance carried forward on the plaintiff’s ledger, thus— “ To balance on reckoning, - - - ‡3,46” and then a new account commenced.

This was an action on note, dated 31st May* 1827, for $97, given to the selectmen of said towns.

This was an action of ejectment for Lot No. 27 in 3d division of lands in Addison, drawn to the original right of Sy-lvanus Tinker. Plea, general issue, joined to the country.

This was originally an action of ejectment, upon which a recovery was had in the county court by the present defendant against the present plaintiffs, who thereupon filed their bill of betterments, and obtained a judgment. Upon this judgment the couftty c®urt granted a review, which being deemed questionable by the present plaintiffs, they took their exceptions, upon which the case now comes here for further adjudication. — 1.

This was a bill of review, praying a reversal of the judgment and decree of the court, in the case of the defendant against the plaintiff, reported in the 5th Vol. of Vt. Reports, p. 279.

This was an action of ejectment to recover the posses^ sion of a lot of land in Starksborough. Plea, not guilty. The plaintiff claimed title by virtue of the levy of an execution, admitted to be valid, against one Isaac Merrill.

This was a declaration on book account, filed in offset to a suit of the defendant against the plaintiffs, agreeably to the statute.

This was an action on the case for damages occasioned by the defendants raising and continuing their dam across Otter creek, in Middlebury, from 1822 to the commencement of this suit, to a height above their right, whereby the water flowed back to the injury of the plaintiff’s land and privileges above the dam. The dam was erected on an irregularly inclined plane of rocks, descending with the stream.

This was an action of ejectment for a small tract of land in the village of Middlebury, upon which the defendant’s office stands. The plaintiff showed by several conveyances that the premises had been regularly conveyed from Gamaliel Painter, the owner, to Miller, and by him to the plaintiff.

This cause was submitted to the decision of the court upon the following statement of facts agreed upon by the parties. The action is brought on the eleventh section of the pauper law, by Middlebury vs. Waltham, to recover the amount paid by Middlebury for the support of A. P. Everts, wife of Samuel Everts, during her last sickness of which she died. Samuel Everts was born in said Waltham, in which was his legal settlement.

This was an action on book account sent to auditors at the June term of the county court, A. D. 1838, whose report of facts, as far as they are important to be here stated, was as follows : “ The plaintiff presented his account against the defendants and proved the services performed and the monies paid as there charged.

This was an action of trespass, quart clausum fregit, for cutting trees on a piece of land situated in Rutland and described as follows: “beginning at Jonathan Fenn’s south-west comer of his house lot in October, 1802, thence north on said Jonathan Fenn’s west line, until it strikes the south line of Capt. John Smith’s pitch of land, thence west on said Smith’s south line till it strikes the west line of the town of Rutland, thence south on the town line till it strikes John…

This was an information filed by the state’s attorney against the respondents, alleging a violation of the fifth section of the “ act for the punishment of certain inferior crimes and misdemeanors,” and also for an assault. On the trial of the cause it appeared tfiat one Lyman Felton was deputed to serve a justice’s writ, returnable before Ira Jennings, Esq. a justice of the peace, in favor of one Henry J. Horton against one Lorin Shat-tuck.

This was an action of assumpsit brought on the warranty of a mare. Plea, non-assumpsit. On trial the plaintiff offered evidence to prove the contract of sale and warranty.

This was an action on note, dated the 29th day of August, A. D. 1831, and signed by Thomas Hooker, Charles K. Williams and Reuben R. Thrall, for $1000, payable in three months from date. Plea, non-assumpsit — issue to the court. On the trial of the cause, the defendant offered evidence tending to prove that Thomas Hooker was the principal debtor, ancj Charles K. Williams and this defendant signed as surety . ° J for Hooker, which was known to the directors.

This was a petition to foreclose a mortgage, executed by Hooker to the plaintiff of certain premises situate in Rutland, and Thrall was made a party defendant, as having become interested in the right of redemption, by the levy of an ex ecution against Hooker upon the mortgaged premises.

<p>An audita querela will not lie to set aside a former judgment where the defence could have been made in the original suit, unless such defence has been prevented by the fraud of the opposite party.</p> <p>That a party makes profert of letters of administration, when in fact he has none, involves no inference of fraud.</p>

This was an action of trespass on the case brought to recover damages occasioned to the plaintiff, alleging the insufficiency and want of repair of a certain public road in the town of Pitts-ford, which it was the duty of said town to keep in repair, whereby the plaintiff in passing in a sleigh, drawn by two horses, for want of a sufficient railing to guard said road, was precipitated down a declivity, and one of his horses maimed and ruined.

This was an action on the following promissory note, to wit: “Danby, April 5, 1830. For value received, I promise to pay Israel B. Richardson, or bearer, thirty-three dollars, one year from date. Jeremy Bartlett.” On trial, at the September term of this court, the execution of the note was admitted by the defendant, and read to the jury. The plaintiff there rested his cause.

This was a petition in chancery, in which the orators set forth, that on the fourth of May, 1826, the respondent was indebted to them as partners in the sum of-dollars ; that the orators, in April, 1827, put their demands in suit, recovered a judgment in September following, took out execution, and committed the respondent to jail.

This was an action on a note against Elias Keyes & Co. Service was made on Elias Keyes only. Plea, non-assumpsit.

insisted, 1. That the plaintiff derived no title to any lands by the deed of Jesse Howe, that deed describing, by metes and bounds, a portion only of the fifty acres of which Obed, Jesse and David Howe were tenants in common.

This was a trustee process, prosecuted by the plaintiff as administrator of Sukey Stevens, late his wife, against the defendant as trustee of John Matthews, executor of Daniel Matthews, deceased, declaring against the principal in an action of debt upon a probate bond. A statement of the pleadings in the cause will be found by a reference to the opinion of the court.

This was an action of covenant broken, and in the county court came up for trial upon demurrer to the declaration, which was in substance, that the defendant, by deed dated October 12th, 1824, conveyed to the plaintiff, his heirs and assigns, a certain lot of land in Bennington, in which was contained, among others, a covenant in common form, against incumbrances.— The breach is assigned as follows: “ Yet the said Susannah did not keep her said covenant, but has broken the…

This was an action in common form, on a recognizance for an appearance, ordered by a justice of the peace, upon a complaint to him made by a town grand juror, against one Solomon Smith for an assault and battery, who was bound over for trial at the county court. An indictment was found by the grand jury. The bond became forfeit by the non-appearance of Smith, the respondent. This suit was commenced against the bail alone.

This was an action of debt upon a recognizance taken by a justice of the peace for the prosecution of an appeal from a judgment rendered by him in favor of the said Leonard Love, appellee-, against the said Truman Estes, appellant, on the 28th day of April, 1832, for a sum less than ten dollars. Estes never prosecuted his appeal to effect at the county court to which the appeal was taken, having wholly neglected to enter it.

This was an action of assumpsit. Plea, non-assumpsit. On trial before the court by agreement, it appeared in evidence that Thomas Jones was a citizen of, and had a legal residence in the town of Dorset, prior to January, 1818. — That in the month of January, 1818, the said Thomas Jones and his family removed to the town of Rupert, and resided there until he was committed to jail, as is hereinafter stated; and his family resided in Rupert until August last. — That on the…

This was an indictment for keeping a house of public entertainment without a license. Plea, not guilty.

This was an action of covenant broken, brought to the county court, where by an agreement of the parties it was referred to the determination of three referees. Held: by rule of this court. S. Swiet, attorney for plaintiff.

The opinion of the court furnishes a full statement of the case, save the bill of exceptions shows that the defendant offered in evidence the copy of an inventory of the estate in question, which was admitted by the court.

This was an action of trover, submitted to the decision of the court. Plea, not guilty.

Indictment for “that Ebenezer Way of Rupert, in the county of Bennington, heretofore, to wit, on the 30th day of August, A. D. 1833, at Rupert aforesaid, he, the said Ebenezer Way, then and there, being a married man, with force and arms did carnally know one Nancy Wilson, an unmarried woman, and with her, the said Nancy Wilson, did then and there commit an act and have a connexion, which would constitute the crime of adultery, provided the said Nancy Wilson had then and…

This suit was originally commenced before a single magistrate, and carried by appeal to the county court. It was an action of trespass on the case, for attempting by force to pass, and for breaking down and passing a turnpike gate belonging to said company. The defendant plead before the justice to the jurisdiction of the court, that said justice was related within the fourth degree of affinity to one of the corporators and stockholders.

This was an action of assumpsit for money bad and received. Plea, non-assumpsit.

<p>This was a bill in chancery, stating, in substance, that in 1828, David Leavitt purchased in Newfane, in the village of Fayetteville, a certain building lot, and paid for the same with his own money, and that Roger Leavitt received a deed of the s.ame in his name, and still holds the same in trust to the use of David, his brother. — That afterwards, David Leavitt, with his own funds, erected buildings to the value of about one thousand dollars on said lot. — That David was indebted to the orator in the sum of four hundred and ninety-seven dollars, and confessed judgment thereon, on which the orator took execution and levied on these premises, and the same not having been redeemed by the payment of the -debt, nor possession given, the orator prays for a discovery, as to which there was many charges and interrogatories, and that the defendants be decreed to pay tbe debt or convey and surrender the premises to the orator and for general relief.</p> <p>David Leavitt, in his several answer, denies fully the statements in the bill, except the orator’s debt, execution and levy,D which he confesses. He further discloses, that he was confined for debt to the liberties of the jail-yard, andjexpected there to remain some time, while arranging his affairs, and 'was in want of a house, and at first contemplated purchasing a lot and building thereon with his ownhneans, and proposed to Martin Field to buy of one Jones the Clark lot, and divide that lot equally with a lot between it and the road, belonging to said Field, and let said David have one half thereof; and he gave Jones two dollars to induce him to take what Field offered.— But finding that no course he could take with his own means would secure him a home, he entirely abandoned the project, and applied to Roger Leavitt, who purchased the lot with his own money, and appointed David his agent to build thereon, and fixed on a place; and that whateverjjhe, David, did in said building, was as agent for Roger, who, from time to time, furnished him money to pay therefor; and what he advanced of his own money, was subsequently settled for by Roger, who gave him in the close his note for three hundred and sixty-five dollars, which had been mostly since paid — partly in rent for the place which David had since occupied. — That he had, for his own convenience, made some Small additions and repairs to the buildings, which were not settled for.</p> <p>The several answer of Roger Leavitt is to the same effect, denying all trust, and disclosing he had made these purchases and erections by David, as his agent, and paid therefor with his own funds, to ameliorate the imprisonment of his brother, and to furnish him and his family with a house.</p> <p>The orator read testimony tending to show, that as early as January or February, 1828, David Leavitt contemplated building a house, and proposed to Martin Field to buy the Clark lot, and divide it as stated in his answer, and paid two dollars to effect that Jsale from Jones to Field. — That Field took the deed and paid Jones. — That David then proposed to Field to furnish him funds to build a house for said David, and keep the title in himself, while he, David, remained in the prison limits, and settle it when he wanted the house no longer, to go to his creditors on a final adjustment. — That Field however finally declined so doing, but agreed to deed'the one half of the said lot, on being paid therefor a certain price, to whoever said David should direct, as was agreed when he bought of Jones.— That afterwards he deeded to Roger Leavitt, by David’s direction, and that all was paid for by David and for his benefit, as said Martin Field supposed. And further testimony tending to show, that said David had proposed also to one William B. Ide to build for him, on being furnished with funds by said David, and hold the house in his own hands, which he also declined, but contracted to build, and did build for said David the house in question; he, David, only acting as agent for Roger, after the contract was settled upon.</p> <p>The defendants read testimony tending to meet and explain that on the part of the plaintiff, and to reconcile it to the defendants’ answers, and show that all the money paid Field was furnished by Roger, of his own funds, and also pay for building the house.</p> <p>argued—</p> <p>1st, That from the testimony, the court would be convinced, that the purchase was really with the money of David Leavitt, and Roger held in trust for him; and that this court would lend its aid to enforce a judgment at law, where all available means at law had failed. — Smith vs. Lewis, 3 Verm. 398. — Angel vs. Draper, do. 399. — 1 East. Ca. Abr. Sec. 14, 77. — Md. vs. Taylor, 6 Vez. 797. — 2 John. Cha. 296. —4 do. do. 455 — do. do. do. 676, 687. — 20 John. R. 554.</p> <p>2d, That it fully appeared, eyed.jby the answers, that David Leavitt had paid his own monéy, in part, to make the erections, and this creates a trust fdivhim. — 3 Atkins, 371. — Bridgman’s Digest, 639, 171.</p> <p>3d, If the property of David Leavitt has been so mixed with that of Roger Leavitt as that it is difficult to distinguish it, the inconvenience is thrown on him, and the greatest value will be given against him. — Hart vs. Ten Eyck, 2 John. Cha. R. 108.-vs. White, 15 Vese.y Jr. 439, 440.</p> <p>4th, As it appears David Leavitt advanced his money for the buildings to greater value than the land, and had an interest in the premises of which his creditors should be availed, the defendant must show otherwise than by his own oath a subsequent settlement or payment, or any facts on which he means to insist, by way of avoidance, which he has not done. — Hart vs. Ten Eyck, 2 John. Cha. R. 91, in note.</p> <p>5th, That this case is within the statute against fraudulent conveyances. RogerLeavitt, by taking a deed of land for David to lay out his funds in building upon, and remain in prison, is a fraud on his creditors. Chancery converts those guilty of fraud into trustees of those who have been injured. — Brown vs. Lynch, 1 Paige, 147.</p> <p>6th, If evidence of fraud is not sufficient to set aside wholly, and there are suspicious circumstances, it shall be holden for no more than is actually advanced. — Boyd vs. Dunlap, 1 John. Cha. R. 478.</p> <p>aagued—</p> <p>1st, The bill charges a purchase and payment of the land by David Leavitt, and a conveyance to Roger, and therefore raises a trust in Roger. The answers, responsive to the bill, set forth particularly a purchase and payment by Roger. These answers are not attempted to be met but by the uncorroborated testimony of one witness, which is insufficient. — Hart vs. Ten Eyck, 2 John. Cha. R. 92. — Nelson vs. Dickinson, 1 Desau R. 134. — Lee vs. Vaughan, 1 Bibb R. 235. — Hughs vs. Blake, 6 Wheaton, 468.— Walton vs. Hobbs, 2Atk. 19.</p> <p>2d, None but a resulting trust can be created by parol. All others are within the statute. A resulting trust can only arise from actual payment of money at the time, or a previous loan for that purpose. — 5 John. Cha. R. 1. — 2 Paige R. 217. And the proof must be on him who sets it up, and be very clear and conclusive. — 2 Bridgman, 621' — 6 Wheaton R. 481. — -1 Bibb, 609. — 1 Vernon, 366.</p> <p>3d, The bill charges that David Leavitt erected the buildings, &c. The answers, responsive to the bill, set fort that the house was built by Roger, and paid for by him — David acting as his agent. These answers are not, in this respect, contradicted by any but the uncorroborated testimony of one witness, and by him, but by inference. This is insufficient.</p> <p>4th, No trust can result from the payment of money generally, unless as a definite aliquot part of the purchase money; and after legal title in the land had vested in Roger Leavitt by a deed to him, and a payment with his money therefor, a re-su^n§ trust could not afterwards be raised by the application of David’s money in improvements so as to divest the estate fr°m Roger Leavitt;.— White vs. Carpenter, 2 Paige R. 24.— Botisford vs. Burr, 2 John. Cha. R. 415.— White vs. Carpenter, 2 Paige R. 238. — Rogers vs. Murray, 3 do. do. 390.</p> <p>5th, The bill is entirely destitute of any substantive charge of fraud, and all argument and authority on the ground of fraud is improper.</p>

This suit was commenced before a single magistrate and was appealed to the county court. The action was assumpsit for money laid out and expended. The defendant plead non-as-sumpsit, and by agreement of the parties the issue was joined to the court.

This was an action on book account, referred in the county-court to auditors, who, upon a hearing, made a special report of the facts, so far as they are important in the decision of the case, a's follows: “We find that in July¿ 1830, the defendant contracted with the plaintiffs for twenty thousand feet, or more, of round timber for y/harfing, to be delivered by the plaintiffs to the defendant, at or near the defendant’s hause-, in the village of Woodstock, in September of…

This was an action of ejectment, brought by the plaintiff to recover the premises which were mortgaged to him, against the defendants, who were in possession and claimed them as assignees of the mortgagor. A judgment by default was rendered for the plaintiff, November term, 1833, and the question of damages referred to the decision of the court. A motion to redeem was made by the defendants.

<p>J}ubitater, whether on the death of one joint administrator the other is not authorized to proceed in the administration without any decree from tho court of probate.</p> <p>No legal presumption arises from lapse of time, that a debt or claim has been abandoned.</p> <p>Lapse of time is a fact from which payment may be presumed.</p> <p>No presumption will be made by a court, that a claim which has not been asserted for thirteen years has been paid, when from other facts the delay can bo accounted fo»1, and when there was no one who would probably have made the payment.</p>

On the trial of this cause, the counsel for the state gave in evidence to the jury a copy of a deed from Jacob Hastings to Jonathan Stone, Benjamin Wait and Stephen Jacobs, of the following tenor, viz: “ Know all men by these presents, that I, Jacob Hastings, of Windsor, in the county of Windsor and state of Vermont-, husbandman, in consideration of the advantages that may thereby accrue to the said county of Windsor, and ihe town of Windsor in particular, and in the further…

This action was originally commenced before a justice of tfie peace, and brought to the county court by appeal, to recover damages of said town for a horse killed by running from a bridge in said Randolph.

The facts sufficiently appear from the opinion of the court. — 1. The commissioner’s report shows that the testatrix had her domicil in New Hampshire when she died, and that administration was taken there on her estate by the defendant; and also that the defendant took an ancillary administration on the same estate here.

This was an action on book account, referred to auditors In the county court, who found for the defendant, and made the following special report of the facts in the case : “The plaintiff produced the following account, to wit: ‘ William Belknap to Alfred Philbrook, Dr. 1831, Oct. 1. To labor 5 1-2 months, commencing' 11th April, 1831, and ending about the last day of September following, at $8,00 per month, $44.00.’ The defendant produced no account.

This case comes here to be considered upon the following bill of exceptions. “ This was an action of trespass for breaking and entering the plaintiff’s premises in Chelsea, and pulling down and carrying away a building thereon standing; with a second count for taking and carrying off certain personal property. Trial by jury on the general issue, with notice that special matter would be giyen in evidence ip justification of the trespass.

This was an action'of ejectment, to recover lot number 65, in the first division in Braintree. Plea, not guilty — issue to the court. The plaintiffs in support of the issue on their part proved that'there was a lot in Braintree called number 65, in the first division, and produced the record of a deed from Charles Brackett to the defendant of the said lot number 65.

This was an appeal from an order of removal of Phebe Hatch and three of her children from the town of Brookfield to Hartland, made on the 5th day of September, 1833, — and the removal actually made as appears by the officer’s return on the 27th day of the same September.

This was an action of assumpsit for money had and received. Plea, non-assumpsit. The plaintiff adduced evidence, tending to prove that Eb-enezer White, plaintiff’s father, previous to June, A. D. 1829, was indebted to the defendant, Comstock, by note in the sum of about $920, secured by mortgage. An action of ejectment was commenced by Comstock on said mortgage, and judgment recovered.

This was an action of ejectment for certain lands in Brain-tree. Tried by jury on the general issue. The plaintiffs, after proving the defendants in possession of the premises, and in order to prove title in themselves, offered in evidence a deed from William Ford to one of the plaintiffs, Clara Brackett, daughter of said Ford, dated the 19th of May, 1830, and recorded November, 8th, 1830, which deed was admitted without objection.

Action of assumpsit for work and labor. Plea general issue. The plaintiff in support of the issue adduced evidence tending to prove that she had labored for the defendant about three years, ending in May now last past; that she enjoyed good health during that time; that she worked with the defendant on his farm in the spring, summer and fall, in planting, haying and harvesting. The plaintiff is now about seventeen years of age.

This was an action of trover for a quantity of wool. Plea not guilty. The plaintiff produced evidence tending to prove that one Nathaniel Bosworth, for a period ending March, 1833, was tenant to the defendant, carrying on a farm stocked by him in Northfield. That among that stock were thirty-two sheep.

This was a bill in chancery, stating in substance, that in 1821, the orator and Watrous entered into a certain contract in writing, under seal of the terms following, to wit: “The “said Watrous does hereby agree and obligate himself, his “ heirs and assigns, to give a good warrantee deed to Campbell, # “ or to whom he shall direct, of the following tracts of land “ hereafter described on the said Campbell’s fulfilling on his part 4 “ the' condition hereto annexed, viz, the…

This was a controversy in relation to a report of referees appointed by a rule from a justice of the peace of the county of Washington, and made returnable to the county court. The defendant, Peck, objected to the acceptance of the report. 1. That it did not appear from the rule of reference, that there was any matter in dispute between said parties, nor was any claim set forth in said rule, on either side. 2.

The bill in this case set forth, that the orator had labored for the intestate, Richard Gookin, from 1804 to 1807, in tending .a carding machine — that in April, 1807, he entered into partnership with the said Richard in carrying on a carding machine at Bath in New Hampshire, and for other business, which continued to the death of Mr. Gookin in 1826 — 'and that a large balance was due to the orator; that after Mr. Gookin’s death a commissioner was appointed on the estate in…

This cause came from a justice up to the county court. It was a complaint against the respondent for firing on training day without being embodied under the command of a commissioned officer contrary to the statute.

This was an action brought in the court below for a libellous publication in the newspapers. After verdict of guilty against the defendant, he made a motion in arrest of judgment, on the ground of insufficiency of the declaration. This motion was overruled by the court. To which decision the defendant made bis exception, upon which tbe cause come here for revision. The publication declared on was as follows; “ Notice.

Action on the case for damages, occasioned for insufficiency of defendant’s bridge. Plea, general issue. The plaintiffs introduced evidence tending to prove that in the month of November, A. D. 1831, they were in the town of Royalton with a drove of fat cattle for the Brighton market, consisting of about one hundred head, principally oxen.

■ This was an action of debt on judgment. Pleas, 1st, Payment — 2d, That Leighton, who really owned the debt, sold it to one J. Weeks, who discharged the defendant therefrom. Issues joined. On trial, it was admitted, that Leighton was the owner of this judgment debt.

This was a habeas corpus to be relieved from imprisonment on an execution in favor of Wm. Buckminster, who, by order of court, was notified and appeared. It appeared that a writ of attachment was sued out from a justice of the peace in favor of said Buckminster against said Kellogg, on which the justice had made and signed a blank deputation, which was afterwards filled up with the name of a person, without consultation with the justice.

This was an action of assumpsit in two counts. Held: the town of Putney would have had notice of it in thirty days thereafter; and according to the settled law of the state, (Londonderry vs. Windham, 2 Vt.

This was an action of trespass for taking a two years old heifer.

This was trespass for a mare, to which the general issue was pleaded, with notice of an attachment and sale of the mare by the defendant, a deputy sheriff, as the property of one Silas Barker.

This was an appeal taken by Lyndon, to an order of removal of Robert Miles and family, paupers, from Wbeelocb to Lyndon. The plaintiff alleged the settlement of the pauper to be in Lyndon and derived through his father, William Miles, who removed from Wheelock to Lyndon, as early as the year 1806.

This was an action upon a promissory note, dated November 3d, 1831, payable in six months to Benjamin Bishop, Jr. or bearer, originally commenced before a justice, and brought by appeal to the county court, by whom it was, by consent of parties, referred to the determination of referees, who reported in favor of the plaintiff’s recovery of the amount of the note.

This was an action of ejectment for certain land in Waterford. On trial it was conceded the defendants were in possession, by virtue of a deed from Jesse Tyler to Josiah Gage, dated June 2d, 1828. The plaintiffs claimed title by virtue of a deed from Silas Hibbard, administrator of the estate of said Tyler, insisting that said deed to Gage was fraudulent and void as to the creditors of said Tyler.

This was an action of assumpsit on note. Plea, general issue to the court. On the trial, the following facts appeared: In September, 1831, one Joseph Gillman owned a certain lease-lot in Walden, of which James Bell held the lease to secure a debt of over one hundred dollars.

This was an action of debt on a judgment rendered by a justice of the peace, declared on with a “pro ut patet per recor-dum.” The defendant prayed oyer of said record, which was read. The record read showed a regular writ and declaration, in the usual form, and made returnable, and the court to be holden on the 9th of February.

This was an action on the case to recover damages, and also a penalty given by law for breaking down and forcibly passing the toll-gate on said turnpike, near the house of Robert Somers, in Barnet. Plea, the general issue. The plaintiff gave in evidence the act of incorporation, dated November 7th, 1805, and also read an act in addition thereto, passed November 9th, 1813.

This is an action of assumpsit. Plea, general issue, closed to the country. » The declaration contained several counts variously describing a single promissory note, agreeing in date and amount, but differing as to time of payment and whether to order or not, and also to being with interest; and all the counts conceding, that by mistake or casualty, the note was in the hands of the defendant; also a general count for money had and received.

This was a scire facias against the defendant as bail on mesne process in the plaintiff’s favor against one Abram Minor, originally brought before a justice, from whose judgment an appeal was taken by the defendant to the county court. The ad dam-num was set at twenty dollars.

This was a suit originally commenced before a justice of the peace, and came into the county court by appeal. The declaration contained counts for work and labor, money paid, laid out and expended, and a quantum meruit, and also a special count on an agreement, by the plaintiff, to carry the mail from Stanstead to Guildhall, for $300, to be paid by the defendant. The ad damnum in the first was stated at one hundred dollars.

<p>Tho manner in which attachment is served must appear in the return, and unless the return shows a legal service, it is cause of abatement.</p> <p>When goods or chattels are attached, the return must show a copy was left, according to tho statute, or it is cause of abatement.</p>

This was a plea in abatement, to which there was demurrer; and there was also a motion to dismiss, for the same cause. Judgment in the county court, that the writ abate and the court take no further jurisdiction of the cause. Exceptions by the plaintiff.

This .was an action of debt on judgment of a justice of the peace, rendered in Coos county, New-Hampshire. Plea, 1st, Nil debit and joinder. — 2d, That cause of .action in declaration did not accrue within six years, and joinder. — 3d, That the defendant appealed from the judgment of a justice in New-Hampshire; traversed. Plaintiff produced a copy of the record of the justice in New Hampshire, attested by the justice.

This was an action of debt on judgment recovered before a justice of the peace, June 18, 1829. Plea, nil debit. The plaintiff offered the copy of the record of the judgment. The defendant objected, but the same was admitted by the court, to which decision the defendant excepted.

This was an indictment upon the 31st section of the statute for the punishment of high crimes and misdemeanors, which relates to counterfeiting.

This was trespass for two horses, and came into this court on exceptions taken by the defendants to the charge of the judge who presided at the jury trial.

This was ejectment for the whole of Lot No. 16, Range 6, and the east half of Lot No. 16, in Range 7, in Lowell. Sei-sin and ouster, Oct. 29th, 1832. The plaintiff gave in evidence, without objection, his letter of administration, granted by the court of probate for the district of Orleans, October 27th, 1832.

This action was brought against the defendant as bailee and receiptor of a horse and saddle, attached by Stephen Cobb, a deputy sheriff, under the plaintiff, on a writ of attachment in favor of Baxter and Edmunds, against one Harry Carpenter. Plea, the general issue, and trial by jury.

The writ in this case described the trustee as “ of Stanstead in the province of Lower Canada,” and alleged Marcy and Morrison to be “ absent debtors.” The trustee stated in his disclosure, among… Held: that one residing without the state, is not liable to be summoned as trustee, though he may come within its jurisdiction for a temporary purpose. — Kidder vs. Packard & al. 13 Mass.

This was trespass for a horse — issue of fact closed to the court by consent. It was admitted by the parties, that tlie horse in question belonged to one William Clark. — That the plaintiff and defendant were both deputies under the sheriff of Orleans, and that each bad, in April last, a legal writ of attachment against Alexander Willson, the former owner, by which they had attempted to attach and hold said horse as his property.

■This was a plea of the case, declaring,' in substance, that the defendant engaged, that if the plaintiff would execute and deliver to the defendant a note of hand for fifty dollars and interest, payable to the defendant, or his order, in two years, he, the defendant, who resided in New Hampshire, would take and receive the payment of said note in current bank bills, at Hyde-park, on the day it should fall due; — that, relying on this, the-plaintiff executed and delivered…

This was ejectment for about twenty acres of the south part of the north 100 acres of a certain lot of land, in Morristown. Seizin and ouster was laid in 1827. The plaintiff read in evidence a deed of the north 100 acres of said lot, from one Lucy Bartlett, William G. Bartlett and defendant, to Alfred Boardman, father of the plaintiff, dated October 3, 1825.

This was ejectment for Lot No. 61, in the first division in Charleston, drawn to the right of the first settled minister in said town.

This cause came before .the court on exceptions taken to the decision of the county court, on the following case stated: In this case it is agreed, that at the time the note was executed, the defendant and the maker of the note resided in Lower Canada, and still do reside there, and the contract was there made; and that at the time the said note was given to the said plaintiff by Tilton, the maker of said note, the defendant was indebted to the plaintiff in a sum equal to…

This cause was brought up on exceptions to the judgment of the county court, in an action of debt on replevin bond. The bond was executed by the defendant with one Houghton, on the replevin of Houghton’s property, which had been attached at the suit of the plaintiff. The declaration was in.

This was assumpsit on a promissory note for $12,21, executed to the plaintiffs’ testator on the 7th day of February, A. D. 1824. Plea, non-assumpsit, and issue joined thereon.

This was trespass for a yoke of oxen, to which the defendant pleaded the general issue, accompanied with a notice, that the oxen were attached by him on legal process against one Bixby.

This was assumpsit in several special counts, alleging in substance, that on the 16th day of January, A. D. 1822, Samuel Rich, since deceased, was indebted to Dustin Willard, then resident in Ohio, but since deceased, in the sum of thirty dollars ; which debt the said Willard then sold and assigned to Thomas McCloud, at the same time drawing an order on said Rich in favor of McCloud for said sum; — that said debt was further assigned by McCloud to Allen, and by Allen to the…

The plaintiff declared on a covenant against incumbrances, contained in a conveyance of real estate, executed by the defendant to the plaintiff, on the 1st day of April, A. D. 1828. The defendant pleaded non esl factum and general performance, ,on which issue was joined to the court by agreement of parties. The deed containing the covenant declared on, together with all the other usual covenants, was read in evidence without objection.

This was debt on a jail bond, executed on the 22d day of October, A. D. 1817, to the plaintiff, then sheriff of the county of Washington, for the admission… Held: that if the plaintiff is not liable over to the creditors for the escape, he cannot recover of the defendants: then certainly, if they had joined issue on the discharge set up in the plea, and it had been found in their favor, judgment must have passed for them. This shows at once the materiality of the traverse.