Volume 7 — Vermont Reports

This was an action of covenant broken, wherein the plaintiff declares, that in April, 1827, Collard executed a deed to the plaintiff of certain land in Burlington, and therein covenanted that he was well seized of the same in fee, whereas he was not seized thereof in fee, and that the same was then owned and possessed by one Proctor. To this the defendant pleaded, first, that said Collard was seized in fee of said land; on which issue was taken.

This was an action of ejectment for a lot of land in Colchester, known as the Hollister lot. On the trial, the plaintiff read in evidence a deed, dated May 24,1814, from Bartholomew and Speedy Belden, of all the right they had to said lot, in the right of said Speedy, as sister and heir of Eunice Hollister.

This was an action of trespass, de honis asportatis, brought against the defendant, who was collector of taxes for the town of Richmond. It came before the court upon a special demurrer to the defendant’s plea in bar. The substance of this plea will be found incorporated into the opinion of the court. The following causes were assigned. 1.

The declaration in this case consisted of five counts. 1. Upon a recognizance taken and acknowledged before two notaries. 2. Upon an agreement to pay £31 4s 0d; equal to $124 SO. 3. Upon a note, dated May 11,1818, for £31 4s Oii; equal to $ 124 80. 4. lnsimul computasset. 5. Money had and received — goods sold.

This was an action of debt, on a bond under seal. The declaration included the common count for money had and received. A full statement of the pleadings and facts in the case is incorporated into the opinion of the court. — 1, The payment of the money and the execution of the notes was a condition precedent to the execution and delivery of the notes.

This was an action brought in the county court upon a bond executed by the defendants to the selectmen of the town of Charlotte, naming them, conditioned as follows: “ The condition of the above obligation is such, that whereas the above named Aaron B. Webb has this day, by the inhabitants of said town of Charlotte, in legal meeting, been duly chosen first constable and collector of town taxes in said town for the year ensuing now in case the said Aaron B. shall well and…

This was a scire facias against the defendant,-as the bail of Shiverie Holmes, sheriff of the county of Franklin in the year 1821. The declaration, after setting out the appointment of said Holmes in 1820, and the entering into the bond of recognizance by the defendant, in common form, proceeded to allege the recovery of a judgment in favor of the plaintiff, the issue of execution thereon, the delivery thereof to said Holmes, and his neglect thereon, in 1821.

This was an action of assumpsit on three notes of hand, dated June, 1817. Plea, the statute of limitation. Replication, a promise within six years, and issue joined to the country. On trial, the plaintiff proved, that one S. H. Barlow, as his agent, called on the defendant with the notes, February 28, 1828, at Shelburne, and there showed him the notes, and talked' with the defendant about them.

This was an action of trespass, vi et armis, to recover the value of five tons of hay.

This cause came from the court below upon the following bill of . exceptions: This was an action of trespass for defendant’s driving against and over the plaintiff with his horse and sulkey. Plea, not guilty — and trial by jury.

This was an action of trespass on the case, alleging that the defendant, by falsely and fraudulently affirming that one Elijah Baker was good and responsible, and that said Baker’s real estate was unencumbered, had induced the plaintiff to receive of the defendant a note of sixty-five dollars, signed by Baker, in part payment for a horse sold by the plaintiff to the defendant. The note was dated, March 27th, 1831, and payable four years from date, with interest.

This was an action on jail bond. The defendant plead a release from the plaintiff, Weeks. The plaintiff replied that the bond was the property of Hezekiah Niles, of which notice was given to the defendant before the date of the release, and that said Weeks never had any equitable interest in the bond. But there was no allegation that the bond was either assigned or delivered to Niles, nor was it stated hów it became his property.

This cause came here upon exceptions to the decision of auditors, who reported the facts to be as follows: That in 1815, or 1816, the defendant received into his family one Caroline Hubbard, then about eight years of age, to keep, educate and maintain, till she should arrive to the age of eighteen years; — that said Caroline served out her minority, and afterwards .continued to work in the defendant’s family nearly .all the time till her death, which happened soon after she…

This was an action on the case, and the plaintiff declares, that on “ the 14th day of February, A. D. 1832, at Berkshire, á discourse was had between the plaintiff and one Samuel Calhoun, jr. and the defendant, of and concerning the plaintiff’s selling to the said Samuel Calhoun, Jr. a certain stud horse, of which the plaintiff was then possessed, of the value of two hundred dollars, and of and concerning the said Samuel’s purchasing the said horse, and giving his promissory…

This was an action of assumpsit, in two counts, to which the defendant plead the general issue. It came here from the county court upon a bill of exceptions taken upon the trial before the jury, by the defendants, to the admission of depositions taken in Canada, by commissioners, under a dedimus potestatem, granted on application of the plaintiff, to which it did not appear that the defendant had ever given his assent.

This writ was brought to reverse the judgment of the county court, in the suit Elias Patterson vs. Thomas II. Campbell, at their September term, A. D. 1833. It appeared upon inspection of the record, that the original suit was upon a promissory note, dated February 26, 1816, alleged to have been made at Cambridge in this state, for the sum of $739 87, and made payable in thirty days with interest.

This was an action of trespass, for taking as the property of Henry N. Janes one double waggon, one single sleigh, one double harness and one single harness. Plea, not guilty.

This was an action of book account, brought by appeal to the county court, and referred to an auditor, who made the following report, viz: “The auditor reports a balance in favor of the plaintiff of $5 47. “ Your auditor further reports, that the agreement between the parties was, that the defendant was to let the plaintiff have towards his services charged in his account, during, their performance, grain and goods, such as the plaintiff might want and call for, and if any…

This cause came from the court below upon the following bill of exceptions. This was an action on the case for flowing certain lands in Enos-burgh, alleged to be the property of the plaintiff, to wit, part of lot No. 216, by means of a dam of the defendant, erected on his own premises. Plea, not guilty. On trial, the plaintiff-offered in support of the issue on his part, ].

This was an action of debt on a probate bond, commenced in the county court, and came here upon exceptions taken by the defendant to the decision of the court below, sustaining the plaintiff’s demurrer to the defendants’ plea of the statute of limitations. A further statement of the case is incorporated into the opinion of the court. —The defendant contends, that this is virtually an action of covenant.

This was an action of assumpsit on a promissory note, to which a plea in abatement was made, as to the sufficiency of the officer’s return, which stated that, at sundry times, from the 7th day of Nov. 1833, to the 17th day of April, 1834, said officer attached divers articles of property, and at the latter date alone had left a copy, including in the return a list of all the property attached, for the defendant, with William L. Sowles, at his dwelling-house in Al-burgh; and…

This was an indictment in two counts: 1. For burglary in the shop of one Brown, and stealing leather and cloth from-the same. 2. For stealing leather. The respondent, on being arraigned, interposed a motion to be dismissed, on the ground that he was forcibly, and against his will, brought from Caldwell’s Manor in Canada, the place of his residence, by citizens of this state, for the purpose of being prosecuted for the offences aforesaid.

This was an action on book, to which the defendant pleaded in abatement, the pendency of a former suit for the same cause of action. To this the plaintiff replied, that the other suit referred to was a trustee or factorizing process, summoning certain persons as the trustees of the defendant, which writ was sued out on the same' day with the' writ in this suit, but not served until after the' service of the writ in this suit. To this replication the defendant demurred.

This was an action against defendant, as sheriff, for not paying-over money collected on an execution. Trial by the court. The facts were, that a note of hand was given by one Case to the selectmen of the towns of Middlebury, New Haven and Bristol, which was prosecuted to final judgment in the name of the plaintiffs, by the direction of a special agent of the town of Bristol. No special agent was appointed by either of the other towns.

This was a bill in chancery, praying for an injunction. .The substance of the bill and answer is sufficiently presented in the opinion of the court. cited Treatise of Equity, 10 — 15. Fonblanque, 23. 1 Maddock’s Chancery, 126, 159-60. Pope vs. Carl, 2 Atk. 342. Smith vs. Cook, 3 Atk. 381. Pomeroy vs. Mills, 3 Vt. Rep. 413. Bac. Abr. 651. 2 Brown’s Chan. Rep. 125. 2 Harrison’s Chancery, 182. Hardress, 96.

This was an action of debt on a jail bond, alleging in substance, in common form, that the plaintiff recovered a judgment against Joseph Tucker and another, of the city of Vergennes, by the consideration of Addison county court, and took out execution in common form, directed to the sheriff of Addison county, his deputy, or either constable of said Vergennes, and delivered the same to the sheriff of Addison county, who for want of property, fee. committed said debtors to the…

<p>This was an action of. trespass for two thousand bushels of charcoal, taken by the defendant. On the trial it appeared, that the plaintiff, as constable, on the 9th day of January, L834, had for service two writs of attachment against Hyman Holcomb and one against O. Holcomb, by virtue of which the plaintiff attached a quantity of coal. It was in a log pit, about half burned, owned and in the possession of said Holcombs. The plaintiff left attested copies of said attachments in the town clerk’s office, according to law. It appeared that the plaintiff directed said Holcombs to take charge of said burning coal-pit through that night, and he never took any further charge or care of it. It was conceded, that the whole would have been consumed and lost, but that the said Hol-combs afterwards continued their care, completed the work, keeled out the coal and sold a part, and the defendant assisted in procuring part of said coal to be drawn away and sold; though he had notice of the plaintiff’s claim. Said writs of attachment were duly returned, and proceeded to judgment.</p> <p>The court decided, that inasmuch as said coal-pit was but half burned down, and as the plaintiff left the care of said coal to said Holcombs, and they remained in possession and did sell and dispose of the same, and did permit the defendant to carry away the same, this suit could not'be sustained, and therefore charged the jury to return a verdict for the defendant. To which decision the plaintiff excepted, and the cause passed to this court for revision.</p> <p>— By a statute law of this state, passed November 2, 1826, (laws of 1826, p. 3,) it is enacted, that when charcoal is attached, the officer serving the process shall or may leave a copy of said process in the town clerk’s office in the town where said coal is situated, and it shall hold the property as effectually as if the same had been taken into the possession of said officer, which said copy was so left in this case by Wilds, the officer, and plaintiff in this case.</p> <p>But it is contended by the defendant in this case, that the coal or pit was left in the care of the defendants in said suit, and they were there attending to the pit in the progress of burning, and that they consented to the said Blanchard’s taking said coal; and therefore the plaintiff was guilty of a fraud in law, by which he lost his lien and the pit.'</p> <p>To this the plaintiff says in answer, that - it could not have this effect in this case, as the defendant had knowledge of the existence of the plaintiff’s attachments and lien on said coal, and it was necessary that some person of skill in coaling should constantly attend to said coal and pit, or it would shortly have been consumed and lost; and as every man is not a coaler, it might be difficult, as it was in this case, to procure a proper person to seasonably attend and prevent the ruin of the said property.</p> <p>— The property attached by the officer was not subject to attachment, because it could not be re-delivered to the debtor in the same state it was in when attached. It was undergoing the process of conversion from wood to coal, and required that a large amount of labor should be expended before the process could be completed.</p> <p>If the officer had left it, in the situation it was when attached, it would have been wholly destroyed: and he was not authorized to convert the article attached into a different thing by a manufacturing process.</p> <p>The officer has only power to take the thing attached, to be kept in the same state it was in when taken, to await the termination of the suit. This is the extent of his authority. He cannot set up as a manufacturer of the property. He can neither tan hides, burn bricks, or make coal.</p> <p>He can do nothing with the property, except to keep it, without the consent of the debtor; and if he obtained his consent, ho would be acting under an authority derived from the debtor, and not by. virtue of his process.</p> <p>As the statute is silent on the subject under consideration, we must resort to the common law for our guide; and it is a fundamental principle in relation to distraining, that nothing can be dis-tra;ne(j except what may be returned in the same plight to the debtor. — Leavitt vs. Holcomb, 5 Vt. Rep. 405. Bond vs. Wood, 7 Mass. Rep. 128-9. Cro. Eliz. 783.</p> <p>2. The officer’s leaving the coal pit in the possession of the Holcombs was a waiver of any lien he might have acquired by the attachment.</p> <p>It is true the statute protects the lien in certain cases, when a copy is left with the town clerk. But all such attachments apply to cases where no actual and visible possession of the property is necessary for its preservation.</p> <p>But surely the officer cannot put the debtor in actual possession and have him use the property under him, and then bring trespass against any one, who, finding the original owner in possession of the property deals with him as the true owner.</p> <p>If it be a fraud in law for a bona fide purchaser of property to leave it in the possession of the original owner, it must be equally so for an officer who attaches property to leave it in the hands of the debtor. — Tainter vs. Williams, 7 Cow. 271.</p>

Upon the trial of this cause the respondent introduced several-: witnesses to impeach the character of Harriet Quackenbush and-Rosetta Van Wait as to truth and veracity, whose testimony tended to prove that said witnesses were common prostitutes. This was objected to, and the court decided that the evidence was inadmissible; to which decision the respondents excepted, and the-cause passed to this court for revision. — 1.

This was an action in usual form on a note for $125, commenced in the county court. After asking oyer of the note, the defendants plead to the jurisdiction, on the ground that the note was reduced at the commencement of the suit, by successive payments, to within $100, and therefore within the jurisdiction of a justice of the peace. To this plea plaintiffs demurred and joinder.

This was an action on jail bond, taken on the commitment of Scott, the defendant, on an execution in favor of Gibson. When the judgment upon which the execution issued was rendered, it was agreed by the parties, and made a rule of court, and entered on the docket, that execution was not to be issued until Gibson should execute a deed agreeably to a certain award which had been made between the parties, and lodge the same with the clerk of the court.

<p>When a deposition contains matter improper to be given in evidence, it should not be delivered to the jury, but the party should be permitted to read only such parts as are admissible.</p> <p>Where in a written contract, a party was under obligation not to sell a factory, .&c. without giving ninety days notice, and likewise allowing him a prefer, ence. It was held that such notice might be proved by circumstances, as ~ the acts of the partios, &c.</p> <p>The party for whose benefit such notice is to be given, may, by his conduct, waive the same.</p>

This was an action of trespass for taking certain articles of personal property.

This was an action on the case for the insufficiency of one of the public roads in the,town of Pittsford, to recover damage for the loss of ahorse belonging to the plaintiff, through the alleged insufficiency or want of repair of said road.

This cause came up for decision upon the following case stated: This is an action on jail bond, taken by the plaintiff,Jas sheriff, on an execution in favor of Moses M. Strong against George Patterson.

<p>In anaction of debt on a recognizance, taken for the appearance of a person ar. rested on a criminal process, it is no defence that the jury who tried the caso were taken from the town to which the fine, on conviction, would be payable.</p> <p>A party may not in a plea contradict the record of a court or magistrate, or impute to them fraud.</p>

This cause comes here for adjudication upon an appeal taken from the decision of the commissioners on the estate of Richard Gookin, disallowing the plaintiff’s claim. A statement of the case will be found incorporated into the opinion of the court.

<p>This was an action of ejectment for lands in Clarendon.</p> <p>The plaintiff offered evidence tending to show a title in the plain-” tiff, and that the defendant was in possession.</p> <p>The defendant then offered a deed from plaintiff to him, of certain land in Clarendon, dated 1st May, 1807, accompanied with evidence tending to show a possession in himself of the north half of the Kenny farm and the land east of the same, together with the second piece of land described in said declaration, lying north-east of the north half of said Kenny farm, accompanied with evidence tending to prove that the plaintiff said he meant to include said second piece, and would deed the same.</p> <p>The court decided that any acceptance under these circumstances would not entitle the defendant to claim said second piece, and that the same was not included in the deed from the plaintiff to defendant.</p> <p>The defendant also contended that the deed should be so construed as to include the land lying directly east of the north half of that part of - said Kenny farm lying west of the highway, and also the second described piece, having been occupied by said defendant, and lying adjoining the land admitted to be in the defendant;— that the court should have left it to the jury to determine whether the plaintiff meant to convey by said deed said second piece.</p> <p>The court also left it to the jury whether the land lying directly east of the west part of the said Kenny farm was intended by the parties to be included in said deed.</p> <p>The defendant, after judgment on the verdict in this cause, moved the court in arrest of judgment for the uncertainty and insufficiency of the plaintiff’s declaration. The court refused to set aside the judgment.</p> <p>The following is the description of land in the plaintiff’s declaration :</p> <p>“ Bounded on the south by the farm formerly owned and occu- “ pied by Elisha Clark, now the property of B. R. Clark; east by “ Silas Green’s farm; north and west by the same land on which the said Harry resides. Also, one' other tract or parcel of land, “ bounded east and north by Silas Green’s home farm; south by the “ land which Elisha Clark deeded to Harry Clark; west by Asa “ Chaffee’s home farm.”</p> <p>— The court erred in refusing to arrest the judgment.</p> <p>1. Because the verdict, if it gives the plaintiff any land, gives him one acre, which appears by the deed, and was admitted on the trial to be the land of the defendant. This appears from an inspection of the deed and plan.</p> <p>2. The declaration, in attempting to describe the first piece of land, does not describe any land as appears from an inspection of the declaration and plan.</p> <p>3. If the declaration, in attempting to describe the first piece of land, does describe any land, the description is so vague that judgment ought to be arrested.</p> <p>There aró a variety of authorities from the 30th of Eliz. (A. D. 1589) to the 47th Geo. (A. D. 1807) going to establish the principle that the description ought to be so definite that the sheriff can, without any guide, give possession of the land. — Austin et ai. Cro. Eliz. 116. Wood vs. Payne, Cro. Eliz. 186. Good-title vs. Wallace, 2 Strange, 834. MaTcefar „vs. Hapwood, 1 Barnes’ Notes on C. P. 117. 3 Wils. 23. Bradshaw vs.</p> <p>Plowman, 1 East. 441. Wright vs. Otway, 8 East. 357.</p> <p>The following Gases are referred to, as bearing upon the same point. — 3 Mod. 238. 11 Co. 55, a. 1 San. 188. Owen, 93. 1 Sid. 295,340. 2 Roll. Abr. 448. — See also Jackson dem. Moore vs.. Bergen, 1 John. Cases, 161. Talbot vs. Wheeler, kiddy, 448.</p> <p>In the case - vs. Whitney & Bysr, decided in Rutland County, January Term, A. D. 1819, (not reported) judgment was arrested for the uncertainty of the description in the declaration, which was in these words: “ Fifty acres of the south side of the said Cleves’ home farm in Clarendon, it being the same farm on which the said Cleves now lives.”</p> <p>contended,</p> <p>I. The declaration is sufficient.</p> <p>1st. The premises are described in the common and usual manner, and the sheriff might even find the land without resorting to the parties.</p> <p>2d. The jury returned a special verdict. The defendant submitted to it, and the plaintiff is entitled to his writ of possession for ■the land specified in the verdict. If the declaration is too loose, it is cured by the verdict.</p> <p>3d. In a praecipe in a real action, which is a formal writ, precision was requisite, bécause.it was necessary to follow the form prescribed in the register, though the same strictness was carried into the action of ejectment when first introduced. Yet the more modern rule is, the plaintiff shows the sheriff, and takes possession at his peril; and if he takes more or other land, he is a trespasser, and would be liable to an action; or the court, in a summary way, will set it right. — 1 Swift. Dig. 650. 1 Whea. Sel. 590. Adams’ Eject. 20, 21, 24, 25. ^Remington’s Eject. 123, 128, 129. Col-lingham vs. King, 1 Burr. 628. Conner vs. West, 5 do. 2672. Porter vs. Morgan, Cro. Eliz. 465. 4 Day. 448.</p> <p>II. The decision of the court, on the construction of the defendant’s deed, is correct.</p> <p>1st. There is no pretence for saying the deed included the piece of land lying north-east of the Kenny farm.</p> <p>2d. The parties having divided the. western and wider section of the Kinney lot in the centre, the east and narrow section must also be divided in the centre ; and the defendant can only claim the land lying east of one half of the narrow section.</p> <p>3d. Whether the parties did or did not intend to inélüde-in the deed the land claiméd by the defendant, and lying south of the narrow section of the Kinney lot, was submitted to the jury, and the jury have found the fact against' the defendant.</p>

This was an action oí assumpsit upon a note, commenced before a justice of the peace, and came into the county court by appeal.

<p>To the statement of the case incorporated into the opinion of the court, it may be necessary to add, that from the pleadings it seems, that the defendant, who was administrator on the estate of Barker at the time this claim of Jarvis was allowed by commissioners, entered an appeal, but afterwards caused the minutes thereof to be erased ; that Jaazaniah Barrett, Jr. and his wife, who were heirs of the estate, supposing such appeal would be prosecuted, omitted to enter one in their own names; that the supreme court, upon petition of the said Jaazaniah and wife, on the ground of fraud, accident or mistake, permitted them to enter an appeal and prosecute the same in the name of the administrator, and that the appeal was accordingly entered by them.</p> <p>— The plaintiff insists, that the proceedings in the county court were extra judicial and not binding on him.</p> <p>1. Because the record set forth in the plea in bar does not show that the defendant ever took his appeal from the probate court.</p> <p>2. The court will take notice of the records of the under court. It appears that the cause was entered by its title, in the usual way, by the clerk, whereupon the creditor filed his declaration, but finding no record in the probate court, he might well suppose the claimant had abandoned his claim, and would pursue his claim no further in a court where the defendants had leave to enter their appeal, but had not done so.</p> <p>The second plea in bar does not aver, that under the issue the merits of the claim were adjudicated upon, and as this was regarded as not being the main question .to be tried before the court, and "it does not appear that the debt has been satisfied, the court will permit the plaintiff to reply to that plea, and not defeat a large claim.</p> <p>contended — 1. That there having been an appeal taken in point of fact by the administrator from the allowance of such claim, and the administrator having omitted to prosecute the same, and the said Jaazaniah and wife having been permitted to prosecute the same in the name of the administrator, it was unnecessary to enter such appeal anew in the probate court, that it was sufficient to enter the same in the county court, and that the judgment on such appeal, so certified to the probate court, must be final and conclusive.</p> <p>2. That after leave so given by the supreme court as aforesaid to pursue such appeal and enter the same, if the claimant goes forward, files his declaration, prosecutes his claim, and takes repeated trials, without objecting to the manner in which said cause is brought before the court, the court will intend that every thing has been done to properly bring the parties before the court, or that, at all events, if such be not the case, all objections are waived by the parties so appearing.</p>

<p>A legacy to three sisters of the plate, musical instruments, pictures, &c. which belonged to their father, gives thorn a joint tenancy in the goods bequeathed.</p> <p>Where two of the legatees died in the life of the testatrix, held that the legacy survived to the remaining legatee, and did not pass to the residuary legatee, under a bequest of the residuum and of all lapsed legacies.</p>

<p>'J'his was an action of assumpsit. The declaration consisted of two special counts and a general .count. 'The evidence offered in support of the general count was the same as the facts detailed in the two special counts. The court decided that the evidence offered was insufficient to enable the plaintiff to support his action ; whereupon the plaintiff entered non-suit, under a rule that the plaintiff have leave to move in the next supreme court for leave to set aside said non-suit, and for a new trial.</p> <p>The declaration was as follows:</p> <p>“ In a plea of the case for this, that the said Obadiah, at Mid-dletown, aforesaid, to wit, on the 15th day of October, A. D. 1831, being indebted to the said David in divers large sums of money, specified in certain promissory notes, one dated April 1,1821, for sixty dollars; one dated April l, 1821, for one hundred and twelve dollars ; one dated May 5, 1825, for thirty dollars and fifty-three cents; and one dated January 11, 1828, for ten dollars and twenty-four cents; which said notes had been changed for others, to wit, for one note dated September 1, 1831, for three hundred dollars, for one note dated September 1, 1828, for fifty-three dollars and seventy-nine cents ; also for one note dated September 1, 1828, for thirty dollars, and two others of the same date for thirty dollars; the said Obadiah, in consideration that the said David would give up all of said notes not before given up to the defendant, and would discharge him, the said Obadiah, from all liability thereon, and would expunge and deduct from said last mentioned notes all illegal interest and all interest in any way reserved more than six per cent on said notes and on the said sums of money so originally loaned by the said David to the said Obadiah, agreed to give the said David a new note for the said sum that should so be found due after all illegal interest had been so deducted as aforesaid, as soon as the computation necessary to ascertain the amount of unlawful interest could be made, and the sum expunged ascertained, said computation to be made by Orson Clark; and said computation having been made by said Orson, and the amount due after deducting all illegal interest having been ascertained to be, errors excepted, two hundred and fifty eight dollars and eighty-three cents, on the said 15th day of October, A. D. 1831. The said David, at various times, and particularly on or about the first day of March, A. D. 1832, offered said notes to said Obadiah and offered to discharge said Obadiah from all liability on said notes, if he would execute a note to him, the said David, for the last mentioned sum aforesaid, or such sum as should be proved due by the said Orson Clark, after expunging all unlawful interest as aforesaid, as by his said agreement the said Obadiah was bound to do. And the said Obadiah refused and neglected to execute said note for the said sum of two hundred and fifty-eight dollars and eighty-three cents, or for any sum, whereby the said Obadiah become, was and is liable to pay the said David the said sum so found due on said first mentioned notes, deducting all illegal interest therefrom, and being so liable, then and there promised to pay the same, yet refuses. Also for this, that the said Obadiah, at Middletown aforesaid, to wit, on the 15th day of October, A. D. 1831, being indebted to the said David in divers large sums of money, specified in certain promissory notes, in which illegal interest had been reserved. In consideration that the said David would agree to deduct and abate all the illegal interest from said notes and discharge the said Obadiah therefrom, and would deduct and abate all illegal interest from said notes and would discharge the said Obadiah therefrom, agreed to and with the said David to pay him the said sum that should remain and be found due on said notes, after deducting all illegal interest reserved on the same, and to pay the same in one year therefrom, and to execute a note to the plaintiff to that effect; and the said David then and there agreed to deduct and abate all illegal interest from said notes and discharge the said Obadiah therefrom, and the said David has offered to deduct and abate all illegal interest from said notes, and to discharge said Obadiah from said notes, and ever since said agreement, has been ready and is now ready so to do; by reason whereof the said Obadiah became, was and is liable to pay the said David the said sum remaining due, after deducting said illegal interest, and being so liable,'to wit, on the 15th day of October, promised’to pay the same.”</p>

<p>This was an application to the county court for an execution against the town of Sunderland. The road commissioners, on proper application, had, in 3828, laid out a certain road in Sun-derland, and ordered the same made in 1829. The town having neglected to make it, the commissioners, on proper application and notice, in 1831, made an order and decree that said town pay to the clerk of the road commissioners three hundred and twenty-five dollars for the purpose of making said road, and that an extent issue to collect the same with costs then taxed. This decree lay unexecuted until March, 1834, when this application was made in writing to the county court that an execution might issue to collect said amount and costs. This application was signed by a majority of the former petitioners to the road commissioners, but not by all. It was also signed by some other persons. In the county court application was made to erase the names of those other persons, which, though objected to, was allowed by the court; and said court also allowed this petition to be amended by inserting an averment that certain of the former petitioners were dead, and others removed from the state. The county court ordered execution to issue against Sunderland, though some of the former petitioners, who are still living in the county, did not join in this application. To which proceedings in the county court the town excepted, and thereupon the cause passed to this court for revision.</p> <p>— The case shows a petition of certain persons for an execution against the defendant town.</p> <p>' The petitioners claim to be the persons aggrieved by the nonpayment of the amount of an extent formerly issued by the road commissioners and not executed.</p> <p>The petition is doubtless intended to come under the statute of 1833.</p> <p>It becomes important, then, to inquire who the petitioners are, and what claims they have, beyond any other class of citizens, to call for the defendant’s money.</p> <p>They are not the road commissioners, to whose clerk the money was ordered to be paid by the extent.</p> <p>They are not the committee, who were to take and expend the money in building the road.</p> <p>They are not exclusively the persons who originally petitioned the road commissioners for the extent.</p> <p>Should Jonas Elliott and Joseph Burton, who were two of the petitioners for the extent, come to the court with their petition, associating such others as should see fit to join them, they would come with the same claims, and upon the principle with the present petitioners. • When they get into court, so many as dislike litigation could ask leave to withdraw, and to be consistent, the county court must grant the request.</p> <p>This would be a convenient mode of getting out of a lawsuit, when it begins to look desperate.</p> <p>When persons have assumed the character of plaintiff in a judicial process, and thereby brought the defendant into court, we submit whether the court can exercise the power of permitting them to withdraw at pleasure. Are they not bound to stay in court and await the event, and abide the effect of such judgment as shall be rendered ? Are they not responsible to the defendant for costs, in case it shall be found they have no right to prosecute ?</p> <p>If the court can permit any number of plaintiffs to withdraw from court, upon the same principle they may let out the whole.</p> <p>Again: we insist that the government, if any one, is entitled to the execution, for it is for the benefit of the citizens of the state at large that the money was appropriated.</p> <p>A set of irresponsible citizens are claiming an execution to enforce a large amount of money from the citizens of Sunderland.</p> <p>What is to be done with the money when collected ? Certainly the sheriff must pay it to any one of the petitioners who shall demand it, however dishonest or insolvent he might be; and who shall guarantee that the money will not be squandered ? Who shall appropriate it to build the l’oad ? The committee expired with the road commissioners.</p> <p>The case is doubtless one for which the legislature can provide an adequate remedy •, and until that is done, it is believed the proceeding cannot be sustained.</p> <p>— 1. The petition was properly amended. ■</p> <p>2. It is not necessary that all should have joined in the petition.</p> <p>8. The petitioners are entitled to execution.'</p>

This was an indictment as follows : The grand jurors within and for the body of the county of Bennington, now here in court' duly empannelled and sworn, upon their oath present, that Giles Bacon, of Sunderland, in the county of Bennington aforesaid, being an evil disposed person, and contriving and intending by fraudulent, swindling and deceitful practices to obtain and procure the money, goods and chattels of Fowler W. Hoyt and Isaac N. Janes of Manchester aforesaid, and to…

<p>íhe rules of court, as to the time of pleading, are matters to be regarded in that ‘ court only. Their enforcement or dispensation cannot be assigned for error.</p> <p>A variance between the declaration before the justice and the new declaratipn filed in the county court, is no cause of abatement.</p> <p>Every case passing to the supreme court on exceptions, is to be considered as a proceeding in error, and decided on inspection of the reeord, not in the nature of a motion or petition for new trial. Hence the questions of fadt cannot be re-examined, whether found by tho jury or the cou'rt on an issue of fact.</p> <p>When a count in general aisumpsit may be used.</p> <p>When goods are purchased, and the purchaser reserves to himself the right to pay in certain property, lumber, produce, &c., lie may pay within the time without demand or designation, and if not paid, the creditor may sustain an action on book or assumpsit without demand.</p>

<p>This was an action on a promissory note, made by the defendant, and endorsed by Charter 8¿ Webb to the plaintiff, and came up upon the following bill of exceptions:</p> <p>This cause was tried before the jury upon the special count in the declaration. — Plea, general issue. The plaintiff waived the common count.</p> <p>The plaintiff produced and read to the jury the note described in his declaration, endorsed by Charter &t Webb to him. The execution of said note by the defendants was admitted.</p> <p>Humphrey Richardson, jr. testified, that the names, Charter & Webb, written on the back of said note, was the hand-writing of Charter, one of said firm of Charter & Webb, to whom said note was payable.</p> <p>Albert R. Raymond testified, that in the fall of 1829, the plaintiff (who then resided at Bennington, being at Manchester, where said Albert resided,) left the note with him, with directions to call on the defendants for a confession on said note, and soon after the witness called on the defendants, computed the interest on the note, and requested them to give a judgment on it. The defendants replied, they would see the plaintiff, as they were going to Benning-ton, and would confess judgment on the note, or’settle it in some other way.</p> <p>The defendants, to support the issue on their part, called Mosley Hall, who testified, that in the fall of 1829, at the request of defendants, he went to Bennington to see plaintiff in reference to the note; — that he stated to the plaintiff the defendants claimed he was requested by them to procure the said note of Charter & Webb, under an agreement that he was to have the money’advanced with interest, and a reasonable sum for his trouble; — and that the plaintiff denied this, and replies he was to have fifty cents on the dollar for all notes taken up for the defendants in New-York; and that it was so understood and agreed between himself and the defendants, before he took said note of Charter & Webb; and that said note of Charter & Webb was purchased under an express agreement that he was to have fifty cents on the dollar. Hall further testified, that in the fall of 1830, he was present at a conversation between the plaintiff and the said Hosea; — the said Hosea claimed and stated to said plaintiff, that said note was taken up for his benefit, and under an agreement that the said plaintiff was to be repaid the money advanced and interest, with a reasonable sum for his trouble; — that the plaintiff said it was not so, and replied he was to have fifty cents on the dollar; — that said Hosea offered to pay the plaintiff the amount advanced by him for the note and interest, and a reasonable compensation for his trouble ; and to this the plaintiff replied, he should not give up said note unless the said Hosea paid fifty cents on the dollar. The witness further testified, that the defendant, H. Williams, had told him, that he requested Judge Hodges to buy the note for him. I did not know, when Hodges went to New-York, that Raymond had purchased the note.</p> <p>Plyn A. Williams testified, that in 1831, he stated to the plaintiff, the defendants claimed he was to recover for getting said note of Charter &£ Webb the money by him advanced, with interest, and pay for his trouble; and that the plaintiff replied, it was agreed between the plaintiff and the said Hosea, previous to the time when he took up said note, he was to have fifty cents on the dollar for all notes purchased by him for the defendants in New-York; and that he was entitled to that amount on the Charter & Webb note. And further, that the said Hosea Williams failed in the fall of 1825, and that his father has denied the agreement to pay fifty cents on the dollar, and has refused to pay the same. Further, that Charter & Webb failed in the fall of 1825; — that in the following win-Webb left New-York; and that in February, 1826, the witness received a letter from Webb, stating he and the said Charter had dissolved their connexion in business.</p> <p>Norris Dodge testified, that he was acquainted with the firm of Charter & Webb — had transacted business with them. Charter & Webb both are relatives of the witness. The said Charter &i Webb failed in the fall of 1825, and have not been in business since; and said Charter inquired of witness as to the probability of defendants’ paying said note; and the witness informed him, the defendants had failed; and the said Charter replied, he knew it, and did not consider said note of much value.</p> <p>Henry Hodges testified-, that he was acquainted with' the firm of Charter & Webb, while in business — was in New-York in the spring of 1826, and said Charter & Webb were not then doing business ; and that he saw Charter there at the counting-room of Charter & Webb; — that in January, 1826, received a letter from Charter & Webb, proposing to take fifty cents on the dollar on the note, if it would be done soon.</p> <p>Whereupon, the court decided, that as none of the facts testified to were denied by either party, on this testimony the plaintiff was entitled by law to a verdict, and they should so charge the jury ;— that there was no evidence tending to prove that the plaintiff purchased the note on the consideration that the defendants were to pay him a reasonable, compensation for his trouble, and what he paid ; as the only evidence to this effect was the declaration of the defendants, which was denied by the plaintiff; — that if the jury should believe, from the testimony, that the plaintiff agreed to purchase the note for the defendants, and was to have fifty cents on the dollar, yet as the defendants had refused to comply with that agreement and pay the fifty cents, denying that there was such an agreement, and claiming a different one, the plaintiff, as endorsee, was entitled to recover the amount of the note and interest.</p> <p>The court further decided, that there was no evidence of the dissolution of the partnership between Charter &s Webb, before the-.note was endorsed to the plaintiff, by which the jury could infer that Charter had no right to endorse the note.</p> <p>A verdict was taken for the plaintiff.</p> <p>Exceptions taken by defendants.</p> <p>— I. The evidence shows that Raymond bought the note in question under an express agreement, previously made with the defendants, that they should pay him one moiety of the same, or fifty cents on the dollar.</p> <p>II. The court charged the jury, that though they should find this agreement proved, yet the plaintiff could maintain an action as endorsee of the note; and inasmuch as defendants had denied this agreement, and claimed a different one to have been made, the plaintiff was entitled to recover of the defendants the full amount of the note, and interest.</p> <p>This charge, we think, ought not to be sustained, for the following reasons :</p> <p>1. A note once, discharged and paid, is functus oficio, and cannot, after that, be negotiated. — 3 Mass. R. 557, Blalce vs. Sewell. 5 Mass. R. 512, Balcer vs. Wheaton. 8 Mass. R. 466, Boylston vs. Green. '</p> <p>2. Under this agreement, Raymond was purchasing this note for the benefit of the defendants, at least for one moiety of the note, and as their agent.</p> <p>3. The agreement, as disclosed by Raymond, was a valid one in the law, and had the action been predicated on it, it would have given a just verdict of damages.</p> <p>4. It is difficult for me to perceive how the defendants’ denying the special agreement claimed by the plaintiff, and insisting upon a different one, and declining to pay according to the special agreement, as insisted upon by the plaintiff, can have a retroactive operation, and resuscitate paper that was before that functus officio, and give effect to an endorsement which before that time was a nullity.</p> <p>5. If Raymond and Williams did not think alike as to the terms of the special agreement, (both claiming one to have been made,) Raymond should have brought his action so as to have tried the right of the parties under the special agreement.</p> <p>6. Raymond is guilty of fraud in procuring the note to be endorsed by Charter & Webb, and thus attempting to enforce the collection of the whole note of the defendants.</p> <p>Though Williams & Son may have received of Charter & Webb the full consideration of the note, yet this is no reason why Raymond should receive a compensation to twice the amount of his agreement, and in direct contravention of the same.</p> <p>It seems -from the case, that Williams & Son failed in the fall of 1825, and that Charter & Webb considered the note of little value.</p> <p>7. The charge of the court violates the rule of damages as claimed by the special agreement, does injustice to my client, and introduces the cheering doctrine of giving two for one, whereby the plaintiff obtains twice as much as he pretends to have a right to claim.</p> <p>III. The court also decided that there was no evidence of the dissolution of the .partnership of Charter & Webb, before the endorsement of the note to the plaintiff.</p> <p>1. There was evidence to show that Charter & Webb failed in the fall of 1825, and have not been in business since that time that in the winter following, Webb left New-York; and in February, 1826, wrote to one of the witnesses, stating among other things, that he and Charter had dissolved, &c.</p> <p>The failure of a firm, and a consequent discontinuance of business, is ipso facto a dissolution. — 3 Kent’s Com. 27, last ed.</p> <p>The acts and declarations of Charter & Webb, or either of them, while the note was in their hands, and before it was endorsed, are evidence against the endorsee.</p> <p>The plaintiff offered no evidence to show at what time the note was endorsed, and it was incumbent upon him to show that it was previous to the dissolution.</p> <p>Again, it seems that in January, 1826, Charter & Webb had the note in their possession, and were then proposing to negotiate a sale; and this was subsequent to the failure of Charter & Webb.</p> <p>— The charge of the court was correct, “ that there was no evidence tending to prove that the plaintiff purchased this note, on the consideration that the defendants were to pay a reasonable compensation for his trouble. and what he paid.” Neither was there any evidence tending to prove a contract, that the plaintiff was to receive fifty cents on the dollar: In each case, there was the declarations of one of the parties; but in every instance, they were denied by the other.</p> <p>The facts disclosed by the testimony of A. R. Raymond, are inconsistent with such an arrangement; — that in the fall of 1829, this note was presented to the defendants, interest computed, and a promise on their part “ to give a judgment on the note, or settle it in some other way.” This is a recognition of the right of the plaintiff, as endorsee, to recover the amount of the note.</p> <p>If there was such an agreement that he was to receive 50 cents on the dollar, the defendants^are estopped to claim the benefit of it, as they have refused to comply with it, denying its existence, and claiming a different one. — 2 Maul and Selwin, 120, Cranley VS. Hillary.</p> <p>Such an agreement to purchase and compound with the defendants, is ^without consideration and void. — 2 H. Blac. 317, Lynn vs. Bruce. 3 Vt. R. 334, Seele vs. Spencer.</p> <p>There wasMo evidence to show that this note was endorsed to the plaintiff after the dissolution of the firm of Charter Webb, or to show any of those facts necessary to constitute such defence, to wit, dissolution ©f the firm, notice of such dissolution, personally to the former correspondents, and publication to those who were not their correspondents, and the endorsement subsequent to such dissolution and notice. — 1 Wheat. Sel. 230. 3 Day Rep. 353, Mow-all vs. Howland. 1 Esp. N. P. C. 371, Godfrey vs. Trumbull.</p> <p>In Wheat. Sel. p. 266, it is said that if a bill is drawn payable to A and B,'who are not partners, if the bill be endorsed by A, in the name of himself and B, and this bill be afterwards accepted by the drawee, it is not competent for him to object to the regularity of this endorsement. So in this case; the promise, as testified to by Raymond, would amount to an acceptance of a bill; and being made after the endorsement, will equally preclude the defendants from objecting to the regularity of this endorsement. — 1 Camp. Rep. 83, Jones et al vs. Radford, (note.) — lb. 82, Porthouse vs. Parker et al. — lb. 485, Cotes vs. Davis.</p>

This is an action of assumpsit upon an arbitration submission. The plaintiff and defendant had submitted all matters in controversy to Myron Clark, Esq., and that defendant had revoked the same. The submission was in writing — the revocation was by parol. On trial, it appeared that at the time of the submission, an action was pending between the plaintiff and defendant, in which the plaintiff’s costs then amounted to two dollars and sixty cents.

This was a bill in chancery, exhibited by the executors oí the will of Joseph Burr, late of Manchester, in the county of Benning-ton, and state of Vermont, who died leaving no issue, against Moses… Held: in the overseers of the poor of the respective counties.

The declaration in this cause was as follows: In a plea of the case, for that heretofore, to wit, on the 23d day of October, A. D. 1830, at Landgrove, in the county of Benning-ton, the defendant combined and conspired with one Jabez Temple, Jr. to cheat and defraud such persons as they might be able to deceive, by the false and deceitful arts and practices of them, the said Marsh and Temple, as herein after set forth — the said Temple being then and there wholly bankrupt,…

On the trial of this cause, which was appealed from an order of removal, the counsel for Plymouth gave evidence to the jury tending to prove, that Sally Winn, the pauper in question, was the bastard child of one Hannah Goodlip, a single woman, who, for about three years before the birth of said bastard, and to within about one month of her delivery of said child, lived in Windsor; — that the said Hannah had previously lived with her mother in the town of Bridgewater, in the…

This was an action of trespass, for taking and carrying away a certain quantity of boards and timber. It was admitted by the defendant that, he took the property, as charged in the plaintiff’s declaration. The defendant then offered in evidence two certain writs of attachment, which were read to the jury, without objection ; by virtue of which, as deputy sheriff, he took said lumber as the property of one Dan Shipley, which writs are here referred to.

This was an action on boot, originally commenced before a justice of the peace, and which came by appeal to the county court.

This was an action of book account, brought originally before a justice of the peace, and carried up to the county court by appeal, and now comes before this court on exceptions taken by the plaintiff to £he judgment of the county court upon the report of auditors'.The report disclosed, among other things not necessary fó be Sta'-' ted,- that thé defendant had plead a tender to thé'plaintiff of $2, 50, which he charges' on book, and attempted to s'ustain by his own oath,…

This was an action on an endorsed note made payable by the defendant to one R. Daman, or order, and by said Daman endorsed.

A statement of the case will be found incorporated into the opinion of the court, and the argument of counsel. — The bill states that the plaintiff made a contract with one John p Noyes, to purchase of him a tract of land; — that be was to pay $210 for the same; — that he paid Noyes in hand $34; — that the plaintiff applied to Yaw to borrow $176, part of the $210; — that Yaw executed his note to Noyes for the same, and the plaintiff thereupon gave two notes to Yaw of $88…

This was an action of trover for nine sheep, appealed from the judgment of a justice. The taking was admitted by the defendant. The defendant then adduced testimony tending to prove that the sheep in question were taken by the defendant’s hired man, on the last day of April, 1834, about noon of the day, from the defendant’s mowing lot, and shut up in defendant’s barn ; the defendant being out at work on his farm, half a mile from home.

This was' a bill in chancery, stating that the defendants were' trustees, by the deed of the oratrix by her made while sole,-of certain demands and property which they were'to hold and invest, and' pay the interest thereof annually to her during life, and on her de-' cease to pay the interest of one half to her husband, should she leave one, during his life, and the interest of the other half to her children, should she leave any,-during their minority, and the prin-' cipal…

, This was an action of account, and the declaration and pleading were as follws: Susannah Torrey is attached to answer to Roswell M. Field, and Mary Almira, his wife,bn a plea that said Susannah render to said R. her reasonable account of the time in which said S. was the bailiff and receiver of said M. A. whilst she was sole and of the said R. and M. A. after their intermarriage. 1st Count. — For that whereas said S., on the 3d day of May, 1819, at Windsor, in the county…

Indictment for not building a bridge ordered by the road com--míssioners. The indictmet read as follows :• “ That on the 29th day of April,.

This was an application to the county court to supersede an execution as impropely and .irregularly issued from that court. At December Term, 1824, Carpenter recovered a judgment against Allen, on which execution issued, and Allen was committed to jail, and on the 10th day of March, 1825, was admitted to the poor debtor’s oath, and released from confinement.

This was an action of trespass for a wagon. Plea — general issue. The plaintiff, in support of the issue on his part, proved that he was, in the year 1832, sheriff of Orange county, and that Josiah White was his deputy, In farther support of said issue, the plaintiff offered in evidence an original writ from the files of the court, and the officer’s return thereon.

This was an order of removal of Sarah Cunningham, a pauper, from the town of Newbury to the town of Topsham in said county, made by two justices of the peace. Held: that when a person went into a town while the Prov. Stat. (12 & 13 Will. 3) was in force, which is much like the act of 1801, and actually resided in such town several years, but secretly, he did not gain a settlement, though he was not warned to leave the town.

This was an action of trover for a coat, commenced before a justice of the peace, appealed by the defendant to the county court, and tried before a jury, June Term, 1834, upon which trial the plaintiff obtained a verdict in his favor.

This was a complaint for bastardy, and read as follows, except the words in italics, which were inserted on permission to amend: “ To William Spencer, one of the justices of the peace within and for the county of Orange, comes Sarah Robie of Corinth, in said Orange county, single woman, in her proper person, and on oath complaint makes, that on or about the first day of November, A. D. 1833, at said Corinth, in said county of Orange, one Hugh McNiece of Corinth aforesaid did…

This was an action on a judgment rendered by the county court of this county holden on the last Monday of March 1826, for eighty-nine dollars. Pleas, 1. Nultiel record. 2. Statute of limitations. The plaintiff in support of the issue on his part, produced his writ dated April 3d, 1834, and served June 30th, 1834.

This was an action of debt on judgment, to which,’among other things, the defendant pleaded in bar two pleas; that the plaintiffs had caused the defendant’s real estate to be set off in full discharge of said execution, and in one of which pleas said return is set out, and in the other, the plaintiff prayed oyer of the officer’s return on the execution and set out the same, and then demurred to both pleas. The defendant joined in demurrer.

This was an action of a trover for a horse. Plea, not guilty; which issue by agreement of parties, was joined to the court.

This was an action of slander. The declaration was in three counts. Held: that where the penalty for an offence by a statute was of a pecuniary nature, an imputation of such an offence would not be actionable, even though in default of payment the statute should direct the offender to be set in the pillory, since the sitting in the pillory was only for the want of money, and not the direct penalty given by…

This was an action of trespass on the case, for enticing away from the plaintiff’s service one Butler E. Shipman. The declaration contained two counts; the first describing the said Butler E. as the apprentice of the plaintiff, and the second as his servant. A verdict and judgment having passed for the plaintiff in the county court, the cause was brought here on exceptions taken by the defendants.

Debt on recognizance. One Jefferson Leavitt being brought before a justice of the peace, to answer a complaint of the plaintiff for bastardy, these defendants became recognized for his appearance before the county court in that prosecution. The recognizance was conditioned in due form, as directed by statute. Leavitt Xvas ultimately adjudged chargeable, and ordered to pay ,a certain sum by'instalments, with the costs of prosecution.

This was an action on a note dated 4th November, 1830, executed by the defendant to the plaintiff for forty-one sheep, payable in two years, which carne by appeal to the county court and was there submitted to the court on the following statement of facts, agreed to by the parties, to wit: On the 4th day of November, A. D. 1828, the defendant received of the plaintiff 18 sheep, for which he gave a note of the following tenor, to wit : “ November 4,1828.

This was an action of trespass for taking and driving away a two year old heifer, and which came by appeal to the county court. Plea, the general issue, with a notice that the same was taken by the defendant as deputy sheriff and sold on an execution against the plaintiff. The plaintiff on the trial, proved the defendant took his two year old heifer, which was forward with calf.

This was an action to recover the penalty of ten dollars given by statute for resisting the plaintiff in driving the defendant’s cow to pound, and rescuing her. The cause came by appeal to the county court, and was tried on the general issue joined to the court.

This was a petition addressed to the county court, representing that the petitionee bad, before a justice of the peace, recovered against the petitioner a judgment by default unjustly; the petitioner having by accident and mistake, attended said court on a wrong day, and that manifest injustice had therein been done the petitioner, especially in the assessment of damages; and praying for a new trial.

This was an action of debt on a recognizance for the sum of one thousand dollars, taken by a judge of the county court. By the declaration it appeared in substance that Charles Seaver was indicted, and on trial was found guilty at the August term of Orleans county court, 1830; exceptions were filed to the charge of the court which were allowed, and the cause was passed to the supreme court to be holden in March following.

<p>Tho action of ejectment for tho non paymont of rent against a lessee may be sustained under any statute without a demand of the rent, though tho lease was executed before tho statute.</p> <p>The loase, in terms, giving tho right of entry only after the rent in arrear “shall have boen lawfully demanded,” does not alter the case.</p> <p>Receiving of rent, subsequently, does not waivo the right to sustain this action, unh ss it be shown that the rcceivor know of the arrear rent at the time; and the rent received, to havo this effect, should have accrued after tho forfeiture existed or the action commenced.</p>

<p>This was ejectment for a tract of land in the town of Plymouth. On the 5th day of November 1829, one Timothy Wetherbee conveyed the land in question to the defendant Binney, by a deed of mortgage duly acknowledged and recorded, conditioned as follows:</p> <p>“ Providing nevertheless, and the above deed is given on this condition, that whereas the said Timothy Wetherbee has this day made, executed and delivered unto the said Moses Binney four notes of hand, bearing even date with these presents, for the sum of three hundred and fifty dollars, to be paid at different times— the first note for one hundred bushels of wheat, on interest, payable in the month of January 1831, if I raise it, and if not, what I do raise and the rest in cash: — the second note for eighty-four dollars and interest, to be paid on the 5th day of November 1832:— the third note for eighty-three dollars, and interest to be paid the 5th day of November 1833 : — the fourth note for eighty-three dollars and interest, to be paid on the 5th day of November 1834. Now in case the said Timothy Wetherbee, his heirs, executors, or administrators shall pay or cause to be paid each of said notes to the said Binney, his heirs, executors, or administrators, when the same becomes due, and in all things agreeable to the tenor of said notes, upon that condition the foregoing deed shall be void, otherwise be and remain in full force and virtue.”</p> <p>It appeared that previous to the 4th day of January 1831, sundry payments were made on the notes aforesaid, which reduced the amount then due to about the sum of $313; — that on that day-said Wetherbee executed to Binney three new notes of that date for the balance aforesaid, all payable in wheat at one dollar per bushel, if he (Wetherbee) should raise it, and otherwise what he should raise, and the rest in cash-. These notes were also on interest, and made payable in the month of Jnnuary 1832, 1833 and 1834. On the receipt of these notes those described in the mortgage deed were given up to Wetherbee and cancelled. No payment of the new notes was. shown. Soon after this exchange of the notes Wetherbee expressed bis opinion ° iiiri . . , , to others, that the mortgage was thereby deíeated; said he under-S(j00ft ¡t S0 at ftme 0f doing the business, but did not suppose Binney had any such expectation.</p> <p>The plaintiffs claimed by levy of an execution in their favor against Wetherbee, made after the execution of said new notes to Binney.</p> <p>The county court received evidence showing the renewal or exchange of notes in the manner above stated, and the defendants obtained a verdict. To this the plaintiffs filed exceptions, and brought the cause into this court.</p> <p>— There can be. no cfoubt of plaintiffs’ right to recover, unless done away by the evidence put in by defendants, which was objected to on trial, but admitted by the court.</p> <p>The defendants then gave in evidence the mortgage deed, above referred to, and certain notes, every one of them varying in date, amount, and mode, and time of payment, from those described in the condition of the mortgage, accompanied with parol proof, by .which they offered to- show that the said Wetherbee fraudulently ■.procured the mortgage notes given up in exchange for the notes offered, with a view to defeat the mortgage, but without offering to prove any knowledge in the plaintiffs of the fraud, if any there was. Defendants then introduced, as witnesses, one Slack and Sawyer, who testified to the admissions of Wetherbee, made before plaintiffs’ boy, that “ he lenew at the time, it would clear, or kill, the •mortgage, hut did not suppose Binney did.” Whereupon the court instructed the jury, if they believed the said Slack or Sawyer, to return a verdict for defendants — which they did in their seats.</p> <p>Plaintiffs now contend, that the court erred in permitting said mortgage deed to go to the jury, without the production also of the notes, or at least one of them, upon which the mortgage is predicated ; — that parol evidence was inadmissible to reconcile the variance so apparent upon the face of them, between the notes described in the mortgage and those given in evidence; and, also, that the court erred in their decision as to the effect of that evidence, when heard, upon the cause.</p> <p>It is difficult imagining upon what possible principle of law that testimony was admitted, There is a total variance between the notes admitted and those described in the mortgage, so that without mare they would be ■pronounced inadmissible -by every one, upon the ground.</p> <p>In the case of Edgell vs. Stanford, 3 Vt. Re>p. 202, which' is a case between mortgagor and .mortgagee, it is decided that in case of a variance between the note described in -the mortgage and the one given in evidence, parol proof is inadmissible at law, to reconcile that variance by showing it to be in. reality the same debt intended by the parties to be secured by the mortgage, but written differently by mistalce, and that the party’s only remedy is in chancery. That case is cited by the court in the case of Marshall vs.. Wood et al, 5 Vt. Rep. 250, as fully settling the law upon that subject. It is also there decided, that no recovery can be had at Jaw on a.mortgage, without the production of the mortgage note on trial, as without its production the law presumes it cancelled and given up, and consequently the debt itself being extinguished, that the lien created upon the land for the security of that debt is gone with it; and that without regard to the title as it stands upon record : — unless, indeed, the absence of the note -can be accounted for, as in other cases of loss properly substantiated, consistently with the idea of its being still due, when, perhaps, the rules of law, applicable to lost instruments, might apply. But when, as in the case of Edgell vs. Stanford, abovecited, the instrument whatever may be its character or effect on the cause, is in.-existence .and in the .possession of the party relying upon it; — or, as in the present case, can-celled and given up under a new contract, the case cannotbe brought within the principle of lost instruments, so as to admit parol proof of the contents.</p> <p>The -same rule is established in ehancery. — 2 Aik. Rep. 33, King vs. -Harrington et al. — .2 Vt. Rep. 353, Newell vs. Hurl-bur t et aL</p> <p>Bat defendants, on the ^trialhelow, relied upon 'the fraud, which they say was practiced by Wetherbee upon Binney in the contract by which the mortgaged notes were procured to be -cancelled and given up to him in exchange for the new, as taking -.this -case out of the principles above referred to. Suppose it to have been a baud, and such an one as would vitiate a contract at law in a case where an adequate remedy exists at law. Binney then would have his election,.as against Wetherbee, either to affirm or disaffirm the contract. If he affirm it, the old notes are dead, and the new, constituting the consideration paid for cancelling the old, are valid and their payment may be enforced at law. But the new notes-do not support the mortgage, on the ground of variance.</p> <p>If he disaffirm it and would set up the old contract, treating the A ° .new notes as 'wholly void, and therefore no payment for the old, pe js |eft w¡tp ids mortgage, but no legal notes in .existence to supPort ^ ’ anc^ Presents ral:her an anomaly in judicial proceedings, that he should be permitted to give those void notes in evidence, as a substantive ground of recovery in his favor. I know of no relief which a court of law can give in such a case, but simply to pronounce the contract, sought to be enforced, void, as against the party defrauded thereby, if required. If from the circumstances of the case, merely pronouncing the contract void, does not furnish an adequate remedy to the party aggrieved, there is a power, and but one, which can set the matter right: that is a court of chancery. So that no difference in principle can be perceived, whether the variance is in consequence of mistake or fraud, as to the proper mode of relief. Both subjects are peculiarly within .the province of courts of equity, and -seldom can be remedied at law.</p> <p>But let us carry the principle out a little further, and see the effects in point of practice of sustaining the'admission of this evidence at law. There is a recovery in favor of mortgagee. Mortgagor or those holding under him, file a motion to redeem. How can a court of law ascertain the sums due in equity ? And when will the time of redemption be -out ? It is perceptible in this case, that some new consideration in amount must have been included in the new notes. Slack testifies that 70 or 80 bushels of wheat were paid on the old notes while in his custody. By supposing that payment delayed until the very day of exchange of notes, and casting the interest to that time, the new notes contain, at least, nine or ten dollars more than the balance of the old, calling the payment the lowest sum testified to. There is also this difference in amount —the three last mortgage notes were for cash, and the new notes are for as many bushels of wheat (if he raised it) as there were dollars in in the old, (together with the addition above named) when wheat was fetching (as the case shows) from $1,25 to $1,50 per bushel. Again, these new notes were all .made payable at different times from the old : the last new note falling due in January 1834, and the last of the mortgage notes not until November of the same year. Would the court go by the old notes, as described in the mortgage, or the new notes adduced in evidence ? If by the new notes, the record reciting the condition of the mortgage and the order of court thereon, would present rather a novel aspect, to say the least of it, with the times and amounts of payments, (with the accruing interest) differing every one of them from any talked about. in the mortgage. If the description in the condition of the mortgage is to govern, deducting the payments proved, what business have the new notes in the case ?</p> <p>But we deny that there was, in law, any fraud in the case. The proof tends to show that Wetherbee knew that giving up the notes “ would kill the mortgage, but supposed Binney did not.” The case, however, finds that Binney was informed by Slack before he had given up the mortgage notes, but after the agreement to make the exchange, “ that he had missed it.” Still he gives up the notes. Sawyer’s testimony also shows, that Binney asked Wetherbee at the time of exchange to give a new mortgage, which Wetherbee offered to do if he would make up to him a small sum mentioned for a previous cheat in a horse trade ; but Binney^de-dined doing it. From which circumstance it is by no means certain that Binney did not in fact understand what he was about as well as Wetherbee, notwithstanding Wetherbee thought to the contrary. But suppose he did not. Suppose that Wetherbee understood the law better than Binney and did not see fit to disclose it to him. Does that constitute in law a fraud? Every man is bound and presumed to know the law. The plea of ignorance will not save a man’s life — why should it his property ?</p> <p>But suppose again, that instead of the pretended fraud resting wholly upon a concealment of the law, there had been a direct and false misrepresentation of some matter of fact, by reason of which Binney was induced to give up his notes and'destroy the mortgage : as, for instcnce, that Wetherbee had represented that a certain individual named stood ready and would, upon seeing the mortgage notes in his (Wetherbee’s) possession cancelled, advance money upon a new mortgage of the same premises, more than sufficient to pay all that was due to Binney, and promised he would, immediately upon the reception of the money, come and take up the new notes; when in point of fact, the story was altogether a fabrication. It is fully settled in the case of Williams vs. Hicks, 2 Vt. Rep. :36, that in case the distance was no greater than fiom Bennington to Burlington, itjvould not be what the law can declare a fraud— that it is “ but the bare assertion of the party,” — “ that the other might easily have applied to the individual referred to and ascertained the truth ; and if he did not, it was Ms oivn, folly to dispense with that which common prudence required^he should have done.”</p> <p>It is also fully settled that, in a sale, the concea'ment of any ma-ferial fad under other circumstances is a fraud, yet, if equally within the reach of either party upon due diligence and enquiry, constitutes no fraud. And even that an express warranty does not extend to visible defects. So that, were this to be treated as a matter yac¡;¡ anc| not pure[y 0f iaw¡ Binney, upon application to any lawyer in the county, might have been informed of the decision above quoted, “that he could not recover on his mortgage without his notes.”</p> <p>If the innovation upon established principles, here asked for by defendants, shall be sanctioned and adopted by declaring a superi- or knowledge of the law in one party and a concealment of it from the other, such a fraud as to vitiate a contract, where would be the stopping place ? Courts must then go on, making innovation upon innovation, until it cornea to be decided that any superior skill in judging of the value of property contracted for in the one party, and a concealment of that skill from the other, is in law a fraud and defeats the purchase.</p> <p>The law permits one who has been defrauded in the purchase of property to rescind the contract in toto, and recover back the purchase money in an action for money had and received. And it is the same where the party makes anotherwise voluntary payment of money, under a mistake of the facts; yet, the authorities are full, that ignorance or mistake of the law, lays no foundation for a recovery. — 2 Saun. Plead, and Ev. 215, 216 and 217. — 2 East. Rep. AQ9,.Bilbie vs. Lumley et al. — Doug. Rep. 468, Low-ry vs. Bourdieu. — 2 John. Rep. 164, Biting et al vs. Scott and Seaman. — 12 East. Rep. 38, Stevens vs. Lynch, (the case from which the doctrine in Wi liams vs. Micks was taken.) — 2 Stark. Ev. 111 and 112.</p> <p>The remarks and the authorities cited, thus far, are applicable to the question as between mortgagor and mortgagee. But there is a still further objection to the evidence admitted and the decision thereon in this case, growing out of the consideration that the question here arises between the mortgagee and an attaching creditor without notice of (he. fraud, if any fraud there was, as between the original parties. VVe had supposed the rule settled, as well in equity as at law, that when both parties claim under the same person, (as one by deed, the other by levy,) that neither party’s title can be affected by proof of fraud in the judgment debtor, without also showing the party, against whom it is urged, to have been privy to that fraud. 4 Vt. Rep. 412, Edgell vs. Lowell et al. — 14 Mass. Rep. 250, Bridge vs. Eggleston. — 2 Vt. Rep. 544, Bu-blee vs. Mead.</p> <p>— The defendant Binney, under whom the defendant Morrison holds, shows a mortgage deed of the premises, executed and recorded before the plaintiffs’ levy from said Wetherbee to himself, dated November 5, 1829, conditioned for the payment of four notes therein described.</p> <p>On the 4th of January 1831, the notes mentioned in the mortgage deed were partially paid and given up, and three other notes given for the balance, amounting to three hundred and thirteen dollars.</p> <p>The mortgage at the time of the levy and subsequently to the present time remained in full force.</p> <p>The first question is, whether this exchange of notes operates as a payment of those described in the deed and a defeasance of the mortgage, even theugh the transaction were a fair and bona fide one.</p> <p>And secondly, whether, as the jury have found, under the charge of the court that the notes described in the mortgage were obtained by Wetherbee surreptitiously and fraudulently from Binney, the transaction still operates as a defeasance of the mortgage security.</p> <p>It is contended that as the condition of the deed is that it shall be void on the payment of the notes therein described, nothing but actual payment can avoid the deed, and that partial payment and the renewal of the notes for the balance is not payment.</p> <p>It is true the mortgagee, at any time, when the validity of the mortgage comes in question must either produce the notes described therein or account for their non-production ; but if accounted for otherwise than by actual payment the mortgage security is not impaired. But in the case of Edgell vs. Sanfords, 3 Vt. Rep. 202, Royce, J. thought, and certainly for very satisfactory reasons, that the burden of showing payment of the note described in the mortgage lay on the mortgagor; and the decision in that case is certainly one of very doubtful authority, and one which it is believed will be overruled when the same question arises. And it is in that case admitted by the court the plaintiff may account for the non-production of the note, by showing that the debt has not been paid, and why producing the note intended by the parties to be secured by the mortgage, though differing a few dollars from the one described was not accounting for not producing the one described in the deed, is riot readily perceived.</p> <p>In Dunham vs. Dey, it is decided that “the repeated renewal of the notes which were evidence of the debt is to be regarded as an extenson of the credit, from time to time, but ought not to b( deemed an extinguishment or a satisfaction of the original debt, for whiqh the conveyance was given as security.” — 15 John. Rep. 555, 56^'.</p> <p>In Davis vs. Maynard, it is decided that taking a recognizance ^ the nQte ¡n tf)e mortgage and giving up the note, is not a discharge of the mortgage. The court say, not as in Edgell vs. Stanford that the mortgage and note are to be considered as one instrument, “ the mortgage and note are two distinct securities, and nothing but payment of the debt will discharge the mortgage. This position is grounded oh the words or condition of the mortgage, which always are that if the money be paid, then the note or bond as well as the deed shall be void, otherwise both remain in full force. By the terms of the contract nothing but payment is to avoid it.” — 9 Mass. 242, 247;</p> <p>In Shirras et al vs. Craig et al, Marshall, Ch. J. in delivering the opinion of the court, remarks :</p> <p>“It is true the real transaction does not appear on the face of the mortgage ; the deed purports to secure a debt of £30,000 sterling, to all the mortgagees. It was intended to secure different sums, due at the time to particular mortgagees, advances afterwards to be made, and liabilities to be incurred to an uncertain amount. It is always advisable fairly and plainly to state the truth. But if on investigation the real transaction shall appear to be fair though somewhat variant from that which is described, it would bé unjust .and unprecedented to deprive the person claiming under the deed of his real., equitable right, unless it be in favor of a person, who has’been in fact injured and deceived by the misrepresentation.”— 7 Cranch, 34, 50. — Peter’s Cond. Rep. 407, 410.</p> <p>But in the case at bar, it was shown at the trial and found by the jury, that the mortgagee obtained the notes described in the mortgage and substituted those which remain unpaid for the balance due surreptitiously and fradulently, with a view to defeat the mortgage security, taking advantage of the ignorance, simplicity and credulity of Binney, the mortgagee.</p> <p>It will scarcely be contended that Wetherbee, or those claiming under him, can avail themselves of such’ an unfair transaction and triumph in bis iniquity.</p> <p>But it is said that the plaintiffs had no notice, or rather there was no proof that they had notice of the fraud of Wetberbee.</p> <p>They had all the notice that the record of the deed could afford, and this is legal notice. Nothing appeared from the record but tfyat the notes were all due, and that was sufficient to put them on the inquiry. If they had inquired or did inquire they could scarcely have failed ascertaining the true situation of the business.</p> <p>If there was a subsisting title in Binney, as between him Wetherbee, they could only attach or levy on the equity of redemption.</p> <p>If any creditor attach or levy execution on property, when there is of record a title apparently good in any other person than the debtor, he proceeds entirely at his own risk, he connot be deceived by the record.</p> <p>If he go on the ground that the conveyance is fraudulent he must afterwards show it to be fraudulent.</p> <p>If it be a mortgage, and he assumes that the personal security has been paid, he must abide the result of the actual state of things, and the rights of the parties, depending on such state of things.</p> <p>But the presumption is that they had actual notice of the transaction, as it now appears. If they went to the record that surely furnished them no inducement to attach. There is no pretence that Wetherbee showed them the old notes, and thus induced them to levy. How, then, came they to levy their exeeution? Why, they bad heard that the notes were taken up, and learning, as they must have learned, how they were obtained, (for the thing was not done in a corner) they then stepped in to avail themselves of the fraudulent conduct of Wetherbee, and may properly be regarded as standing in his place.</p>

This was assumpsit on a promissory note, executed to the plaintiff by the defendant and one Russell, as joint and several promis-sors. It was conceded on trial, that the sole consideration.of the note was money lent by the plaintiff to the defendant. The de-fence was, payment by the defendant to Russell, acting as agent of the plaintiff.

Betsey 'Wells, as executrix of the said Horace Wells, recovered judgment in the county court against said Lyman as administrator of Brooks, and caused execution to issue against the assets in his bands; and he having failed to satisfy the execution, she afterwards brought her writ of scire facias, suggesting a devastavit, and claiming to charge bifiT.iie bonis propiciis.

Trespass quare clausum fre.gif. The trespass was alleged to bare been committed on Right No. 64 in Sherburne, between the 15th clay of July, A. D. 1830, and the commencement of the suit. The defendant pleaded not guilty, accompanied with notice, that he should justify the trespass, by showing title in himself, and also by showing title in Jesse Williams and Josiah Wood, and that he entered, and did the acts complained of, as their servant.

This was ejectment for land in Manchester. The case was before this court at the last term, when the judgment of the court, awarding a new trial, was pronounced by the late Justice Thompson. Hutchinson Chief Justice at that time expressed a dissenting opinion. The evidence at each trial below was the same, with this difference, that the matters shown in defence on the first trial were offered and rejected on the last.

This was an action of ejectment. Plea, not guilty. On the-trial the plaintiff proved that Samuel Calhoun, Jr. was the owner of the premises in- question on- the 28th day of February,- A. J>. 1832. The plaintiff then gave in evidence two writs of attachment, judgments, executions, with the officer’s return thereon, levying and extending the same on the premises in question in the plaintiff’s favor against said Samuel Calhoun, Jr., which were admitted without objection.

<p>A recognizance taken by a justice of the peace, whore no form is given by the statute, is legal and valid in the terms which shall accomplish the object 14 view.</p> <p>A clause in a recognizance for the appearance of a witness as follows, — “and-not depart without leave of court,” is legal.</p>

<p>This was an action of ejectment for certain lands in Lyndon. Plea, the general issue.</p> <p>The plaintiff claimed title by virtue of the levy of an execution which was conceded to be regular. The judgment was, as appears from the case, predicated upon certain notes executed to the plaintiff by one Micajah M. Lowell previous to March, 1825. The defendants claimed title by vittue of a deed from said Micajah M. Lowell, dated March 22, 1825, prior to the levy of the execution, conveying said Lowell’s whole farm for a consideration expressed of $400. The plaintiff, who was a creditor of Lowell, contended that this deed was fraudulent and void as against creditors, and gave evidence to prove this fact, and that said Gideon Lowell was privy thereto.</p> <p>The defendants introduced evidence to establish the deed as executed bona fide and for a valuable consideration.</p> <p>Upon a former trial, (Vide 4 Vt. Rep. 405, the said M. M. Lowell, now deceased, was sworn as a witness, and the testimony which he then gave is now stated on oath by Judge Sias from his minutes. The plaintiff further offered Lois Lowell, widow of said M. M. Lowell, to testify to facts tending to show the sale to Gideon to be fraudulent, and also to testify to acknowledgments of her late husband to that effect. To this testimony the defepdant objected, on the ground that she was interested on the part of the plaintiff, and not legally admissible to testify to the sayings and doings of her late husband in relation to the farm. But said Louis was permitted tr> too+w-</p> <p>After stating the evidence in the case, the court charged the jury as follows:</p> <p>If you find from the evidence that M. M. Lowell was in embarrassed circumstances; that he had little orno property in this state besides his farm in Lyndon ; that he sold this farm for the express purpose of putting himself or his property beyond the reach of legal process, and thereby to delay or defeat his creditors in the collection of their debts, it was a fraudulent conveyance on his part, although he sold the farm for its full value. If Gideon, at the time of sale, knew of the fraudulent intent of M. M. in selling his farm as aforesaid, then Gideon, as purchaser, was privy to said fraudulent intent, and it is void in his hands as to the creditors of M. M.</p> <p>The court further observed, that if M. M.’s object was simply to pay his honest debts, and it was so understood by Gideon, then it was not a fraudulent sale. A debtor may pay one creditor and leave another unpaid; or he may show preference to one creditor before another; and this is not fraudulent.</p> <p>The jury returned a verdict for the plaintiff to recover the seizin and possession of the land, and damages and costs.</p> <p>The defendants made their exceptions, which were allowed and certified.</p> <p>In this case there was also a motion for a new trial, because the jury, who rendered the verdict, before agreeing on the same, separated themselves from each other and from the custody of the officer having them in charge, and retired to their several lodgings md about the village wherever they pleased,and socontinued separate from about 7 o’clock, A. M. on the 9th of December, 1832, until ibout 8 o’clock, A. M. to the 10th of December, 1832. Also >ecause the jury, after having agreed on a verdict, separated with->ut sealing up their verdict, and returned the same into court open, ind without being sealed up. Also because, in ascertaining the lamages in said action, each juror marked or set down his opinion >f the sum proper to be found for the plaintiff as the annual rent ff said land or farm sued for, and then the jury or foreman added ■ ogether the several sums ¡so found by each joror, and divided the amount by the number 12 and made the result, multiplied by 3, (the supposed niifnüer of years the premises were occupied by the defendants since the plaintiff’s levy,) the damages in the action.</p>