Volume 8 — Vermont Reports

<p>The plaintiff in ejectment on mortgage, when defendant obtains a .decree of foreclosure and time to redeem, is entitled to tako his writ of possession and execution for costs on tho expiration of the time set for redemption and the terms of the decree not complied with.</p> <p>The day of the expiration of the time set for redemption, is the day of final judgment; and the day following, being the first day on which plaintiff is entitled to execution, is the first of the sixty days within which plaintiff must aver a non estinventus return on the same in order to change bail on mesne process.</p> <p>The bail in such case are not discharged by the operation of the decree either on the ground that it extends the time more than sixty-days from the rendition of final judgment, or that tho costs are merged in the decree.</p>

This was an action of trover for a horse. Plea, general issue.

This case came into this court upon exceptions taken in the county court. The action was ejectment for lands in Burlington. The plaintiff declared upon his own seizin as executor, and the defendant pleaded the general issue. On trial the plaintiff gave no evidence of his appointment as executor, and the court held it unnecessary. Both parties claimed title from one Tliaddeus Tut-tle.

This was a writ of scire facias, sued by the plaintiff against the defendant as administrator de bonis worcofRoswell Butler deceased, requiring him to show cause why he should not be compelled to enter and prosecute to final judgment a suit commenced by his intestate against the present plaintiff, and which was pending at the time of his decease, in the county court for this county, the cause of action being one which by, law survives in favor of the personal representative.

This being an action of trover for numerous articles of personal property, the only questions decided are upon the charge of the court below in relation -to the evidence necessary to warrant the jury in finding a conversion in the case.

<p>This was an action of debt upon jail bond, executed by the defendant and one Robert Beach, who was committed on an execution in favor of Horace Lovely. Several pleas were interposed by thé- defendant. But the only question which arose on the trial of the case, was upon the plea of discharge from imprisonment under the poor debtor acts, which depended upon the validity of the following certificate:</p> <p>“STATE OF VERMONT, ) Chittenden County, ss. )</p> <p>“ To George A. Allen, keeper of the jail in Burlington, in the County of Chittenden and State of Vermont,</p> <p>“ Greeting :</p> <p>“ Whereas, Robert Beach of Hinesburgh, in the county of “ Chittenden and state of Vermont, a prisoner in your custody, on “ an execution, at the suit of Horace Lovely of Burlington, in the “ county of Chittenden and state of Vermont, for the sum of 115 “dollars and 19 cents damages and for the sum of 15 dollars and “ 94 cents, costs of suit, whereof execution remains to be done “ for $31 43, signed by Nathan B. Haswell, clerk, and dated the “ 9th day of May, A. D. 1834, has this day taken the oath pre- “ scribed in an act entitled ‘An act relating to levying executions “ and to poor debtors.’ The said Lovely was notified by a copy “having been left with William'Weston of said Burlington, the “ attorney of record of said Lovely, twelve days before the time “ of hearing set in the citation, who showed to the commissioners “ the following facts, which were proved to the satisfaction of said “ commissioners, viz: that the said Lovely had resided in the “ town of Burlington, in the count of Chittenden, for some two “ years with his family — that in the spring of 1.834, said Lovely “ went with his family to Hinesburgh, and stayed in his father- “ in-law’s family, (Mr. Smedley) and remained there until two “ days previous to the service of the citation, when the said Love- “ ly left Hinesburgh and went out of the state to seek a residence “ for himself and family, leaving his wife and children in Hines- “ burgh, in said Smedley’s family where they continued to remain “ and still remain.</p> <p>“ The attorney pleaded the above facts in abatement of the pe- “ tition, contending that the copy should have been left at the last “and usual place of abode of the said Lovely, and not with the “ attorney.</p> <p>“ The commissioners decided that the said notice to the said “ Lovely was legal aud sufficient and overruled the plea, and in “ our opinion the said Robert Beach ought to be discharged.</p> <p>“ Witness our hands, at Burlington, this 10th day of July, A.D. 1834.</p> <p>GEORGE P. MARSH,) (Signed) I. P. RICHARDSON, > Commissioners HENRY WHITNEY, )</p> <p>The court having decided that the decision of the jail commissioners, in relation to the sufficiency of service as appears from the above certificate, was conclusive, directed a verdict for the defendant. Whereupon the plaintiff excepted, &e.</p> <p>— Although the defendant has pleaded seven pleas in bar to this action, the only question that ought to have been presented for the decision of the court, is the validity of - the jail commissioners’ certificate.</p> <p>1. The certificate shows what the notice was and that Lovely was a resident of the county — that he was absent from the state at the time of the service of the citation, and that his family, (wife and children) at that time, resided in Hinesburgh, in Chit-tenden county ; and we insist that the service of the citation upon the creditor’s attornéy of record, under such circumstances, is no. notice to the creditor. — Stat. p. 221 — S. 12 p. 237, no. 22 — p. 241, no. 30.</p> <p>2. The jail commissioners derive their whole authority from the statute, and if upon the face of their proceedings it appears that the creditor was not notified, the certificate must be void if notice was necessary. — Dimick vs. Hubbett, 1 Vt. Rep. 253 — rI)can vs. Howry, 4 Vt. Rep. 481 — ñaymond vs. Southerland. — 3 Vt. R. 505. And can the case be varied where they certify that no notice was given, or where they set forth a notice not authorized by statute ? We think not.</p>

<p>This was an action for money had and received for plaintiff’s use. The defendant plead in abatement to which the plaintiff replied. The defendant demurred to the replication, which the court decided to be sufficient, and ordered the defendant to answer over. The defendant then plead non assumpsit with notice. Upon trial it appeared that the money received by the defendant for which this action was brought was pension money due the plaintiff as an invalid pensioner of the United States.</p> <p>The defendant offered in evidence a copy of a record of the proceedings of the select men and civil authority of Chelsea and the doings thereon, showing that the defendant was appointed guardian of the plaintiff in 1827. To this evidence and to the admission of any evidence under the notice of the defendant, the plaintiff objected upon the ground that the same identical facts which the defendant liad set forth in his said notice, had been pleaded in abatement and decided against him upon that plea.— The court overruled the objection and admitted the evidence.</p> <p>The defendant also offered in evidence ,two accounts, purporting to be the accounts of said Hale as guardian of said Cushing, approved by the select men of Chelsea, and also parol evidence tending to prove, that the select men who signed the complaint against said Cushing and who approved the accounts of said guardian, acted, at the time when they signed the same, in that capacity, and were select men of said town of Chelsea. To this evidence the plaintiff objected, on the ground that the record of their appointment was the only proper evidence. The court oveiruled this objection and admitted the evidence.</p> <p>The plaintiff also objected to the receipt of the copy of the proceedings whereby the defendant was appointed guardian of said Cushing, upon the ground that the defendant must prove otherwise than from the recital in said copy, that said appointment of said Hale guardian, was made at the instance of a majority of the select men and civil authority of the town of Chelsea. This objection the court also overruled.</p> <p>The plaintiff then offered in evidence, a copy of an execution in favor of Daño and Stearns against said Cushing and the officer’s return thereon, and also the depositions of D. Azro A. Buck, L. Bacon, Annaniah Bohomon and Benjamin Grout, which tended to prove that Cushing, at the time of being put under guardianship, had no residence in Chelsea otherwise than as a prisoner in the jail limits — that for two years previous to his commitment to prison, and at the time of his commitment he was a resident of Norwich, in the county of Windsor.</p> <p>It was admitted that Cushing had no legal settlement in the state of Vermont.</p> <p>From all which evidence the plaintiff insisted that the town of Chelsea had no jurisdiction over said Cushing and that the proceedings of the select men and civil authority of Chelsea, and the appointment of said Hale guardian of said Cushing, were wholly void; thus the money received by said Hale as guardian, being a pension given by the government of the United States to the plaintiff, is not by the law of the United States subject to the control of such guardian or any person but the pensioner himself.</p> <p>The court decided against the plaintiff upon the point above raised, and rendered judgment for the defendant to recover his cost; to which several decisions and judgment of said court the plaintiff excepted. Exceptions allowed and certified.</p> <p>— The select and civil authority of Chelsea had no right, under the statute, to procure the plaintiff to be put under guardianship, and if the authority under which the defendant seized Cushing’s pension money was void, then he is unquestionably responsible for it in this action.</p> <p>It is too clear to admit of illustration, that if Cushing did not “belong” to Chelsea, then, its select men and civil authority could make no complaint on which the two justices could legally issue a citation, or appoint guardians over him, and the whole proceedings were absolutely void. In determining the true construction of the statute, let it be remembered, that it is most .harsh if not oppressive in its character; that it vests a summary and fearful power over the whole fortunes, comforts and reputation of a citizen, not in our high courts, but in a set of inferior magistrates, and that it ought to receive a strict construction.</p> <p>1. We contend that the term “belongs,’-’ in the statute, means legally settled. It is used in exactly that sense, in section 5 of the poor act, p. 371.</p> <p>2. The case states that Cushing had no other residence in Chelsea, than as a prisoner in jail; and in Danville vs. Putney, 6 Vt. Rep. 512, the court expressly decided, that prisoners, so situated, are transient persons within the meaning of the 11th section of the poor act. If Cushing was a transient person in Chelsea, did he “belong” there, in the sense of the statute or in any sense ? It' can make no difference that he had' no legal settlement in the state, because, his support and maintenance devolved on the state and not upon Chelsea — (see no. 5, Sup. Act, Rev. Stat. p. 384) — - and because, were it otherwise, the town only to which' he “belonged,” could interfere to place him under guardianship.</p> <p>3. The whole tenor and spirit of the statute show, it appears to us, that the right of a town to place the spendthrift under guardianship, flows from the fact of his being legally settled there. It is intended simply as an indemnity against their ultimate liability to support him in sickness and poverty. There is not an expression intimating that moral restraint, the benefit of himself and family, &c. were any part of its object, except so far as those consequences resulted incidentally. It is town action, town custody, town security, from beginning to end. Nor will it do to say that, although the state was ultimately liable to support plaintiff, yet Chelsea might be subjected to some loss or trouble beyond the proportionate amount provided by the. treasury. De minimis non curat lex. It would be a new idea, that every transient person might be seized, because he abode- in a town for a week,, and his property sequestrated, on the ground of a mere possibility of a trifling loss; much more so when his stay was owing to legal coercion. Cushing “belonged” to Chelsea, not as coming to reside there — not as subject- to military duty or taxation there — not as a voter there — not as a corporator for whose support and maintenance Chelsea was responsible. He “belonged” there in no sense literal or-technical, that gave Chelsea a right to sequestrate his property. ■</p> <p>4: The provision that the two justices might appoint a guardian, “if upon examination it shall appear that the person complained of, comes within the true description, intent and meaning of this act,” (sec. 14) makes their acts conclusive only as to the improvidence and debauchery &c. of the person complained of. Obviously their adjudication cannot bind an individual not subject to the operation of the act. — 3 Cranch 331, Wire and Withers — 13 Johnson, Suydam. and Wyckoft vs. Keyes. But the act is void for the reason given above.</p> <p>■ 5. It is said that inasmuch as the ward could complain, he is bound by the guardianship while it subsists. The answer is: 1. That the statute gives no appeal from the determination of the justices. 2. That he may complain of the doings of the guardian, (Prov. Sec. 15 — -p. 375, Rev. Stat.) or 3d: He may sue humbly for a certificate of reformation from the guardian interested to withhold it — or, 4th: He may apply to the county court for a restoration of the fragments of his property left. Now all these modes of relief presuppose the right to put him under guardianship, and could not be applied till the injury was inflicted; and hence a direct action against the defendant acting under a void authority, is Cushing’s only remedy.</p> <p>We contend that the pension of the plaintiff was exempted from the operation of the act under which the defendant was appointed guardian ; and there was no other property of Cushing taken. By the act of Congress, passed April 10, 1806, no sale, transfer or mortgage, of the whole or any part of any pension to non-commissioned officers, &c. before the same becomes due, shall be valid, and whoever claiming the same under power of attorney, must make oath that such power of attorney, is not given by reason of any transfer of the same. By the act of April 28, 1808, the operation of that act is extended to commissioned officers, disabled since the revolutionary war. — See Ing. Dig. p. 522 & 523.</p> <p>— The defendant resists the plaintiff’s'claim upon the ground that he was on the 26th of May, A. D. 1827, by two justices of the peace, within and for the county of Orange, appointed guardian to the said Cushing, according to the provisions of the 14th section of an act, entitled “An act defining what shall be deemed and' adjudged a legal settlement, and for the support of the poor; for designating the duties and powers of overseers of the poor, and for the punishment of idle and disorderly persons,” and that, what money he received, belonging the plaintiff, he received as such guardian, and has paid it out for the support of the said Cushing and his family and for the payment of his just debts, and has settled his account as guardian to the said Cushing, with the select men of Chelsea. — Vide stat. 374 sec. 14, and 385 sec. 4.</p> <p>The counsel for the plaintiff insists, that the defendant’s appointment as guardian to Cushing, was void, because Cushing had no legal settlement in the town of Chelsea, but resided there as a poor debtor on the jail liberties. Cushing had no legal settlement in the state, as appears from the bill of exceptions. He resided in Chesea and so did his children ; and if he or his children, while residing there, became a public charge, Chelsea must bear it.</p> <p>The justices, therefore, had jurisdiction of the case, their proceedings are regular on the face of them and were properly admitted in evidence in the court below.</p> <p>Again, if Cushing was aggrieved at the doings of his guardian, he had a right to complain to the county court for relief in the premises,' — Vide stat. 375 prov. to 15th sect.</p> <p>If he thought himself entitled to a restoration of his property,.- or that his pension was not under the control of his guardian, he should have applied to the court under the proviso to the 16th section of the statute for relief. — Vide stat. 376.</p> <p>This pension money was liable to the control of his guardian and was so decided to be by the supreme court in Orange county, in the case of Kendrick vs. Dana.</p> <p>We further insist that the proceedings of the justices appointing the defendant guardian to the plaintiff, being regular on the face of them, should afford protection to the defendant until set aside by a court of competent jurisdiction. If the proceedings had been set aside upon the ground that the justices had no jurisdiction of the case, a court of chancery would enjoin this action, inasmuch as the defendant has paid out all the money he has received for the support of the said Cushing and his family and for the payment of his just debts. This action being in the nature of a bill in equity, ought not to be sustained against the defendant.</p> <p>It is further insisted by the plaintiff, that having pleaded this matter in abatement, we were not at liberty to set it up as a de-fence under the general issue. This position cannot, we think, be sustained. The general rule is this: the court will not permit a defendant to plead at the same time in abatement and in bar, to the same matter.' — 1 Chit. Plea. 492.</p> <p>If matter is improperly pleaded in abatement and overruled it may afterwards be pleaded in bar or set up as a defence under the general issue. It is true, that at the first term of the court after this action was commenced, the defendant pleaded in abatement that he was the legal guardian of.Cushing, and as such guardian received the money, &tc. Cushing replied to the plea and the defendant demurred specially to the replication. The court adjudged the replication to be sufficient, and the defendant filed his exceptions which were allowed and the propriety of the decision is before this court for revision.</p> <p>All that the defendant asks in this case is a decision in his favor, and it is of no consequence to him upon what ground it is made.</p> <p>We think, however, that the judgment of the county court, upon the trial of the merits of the cause, should be affirmed.</p>

This was an action of book account, commenced at the March term of the county court, 1833. ' The defendant prayed oyer of the plaintiff’s account and plead, in bar, the following pleas. 1.

This was an action of assumpsit for money bad and received, commenced in the county court. Plea, non-assumpsit and trial by jury. It appeared in evidence, that on the 2d day of March, 1830, the defendant was appointed by the plaintiffs captain of their steam-boat McDonough, and they sought to recover monies received by him as captain under said appointment.

There were two informations against the same respondent, charging nearly the same offence, filed in the court below by the states attorney of this county.

<p>A deputy sheriff cannot serve a writ in favor of a town of which he is a rated inhabitant.</p>

<p>A Marriedwoman cannot sustain a prosecution under the statute relating to “bastards and bastardy,” for the purpose of compelling the father of a child, begotten and born during the coverture, to contribute to its support, even by'showing total want of access of the husband of such woman.</p> <p>Such case is one not provided for by the statute.</p>

This was an action on book account, commenced before a magistrate and carried by appeal to the county court, by whom it was referred to an auditor. At the trial before the auditor, the defendant exhibited a charge on book against the plaintiff, of $‘10 04, being the balance due on a note signed by the plaintiff and one Carr.

<p>Petition for partition — and Plea denying the alledged tenancy in .common. The property in question was real estate, devised in the year 1815, by Jeremiah Morrell, deceased, in the first place to his wife Peggy, one of the petitioners, so long as she should remain his widow and unmarried; and whenever the interest of said Peggy should be terminated, to his two sons, Joseph and Jeremiah. Joseph died a minor and unmarried in 1824. A short time previous to said Joseph’s decease, said Peggy intermarried with John Gilman, one of the petitioners. The clause in the will bequeathing to the sons the property in question, read as follows : “I give and bequeath to my two sons, Joseph and Jeremiah, all roy real . estate, of whatever name .or nature, after the interest of my wife shall have terminated.”</p> <p>The defendant contended, that the whole share and estate of said Joseph had become vested in himself. But the court decided, and instructed the jury, that said Peggy inherited the share and estate of said Joseph equally with the defendant, and that the plaintiffs, in right of said Peggy, were tenants in oommon with the defendant in proportion of one fourth and three fourths. The jury thereupon returned a verdict for the plaintiffs. To which decisions and charge of the court, petitionees excepted. Exceptions allowed, and the cause passed to the supreme court for revision.</p> <p>— The will was executed February 17th, A. D. 1815, and must be so construed as to carry into effect the intentions of the testator, whether the testamentary disposition be such as the court will favor or not. — Thel-luson vs. Woodford, 4 Vesey’s Rep. 311 — 3 Burrows’ Rep. 1634.</p> <p>From the plain and express words which limit the duration of the widow’s estate, we think the court can have no doubt that the intention of the testator was to have the land in question descend only to the heirs of his own body.</p> <p>Every doubt upon this subject will be removed by a reference to the laws in force when the will was published.</p> <p>' The statutes then in force, so far as regards the present question, were the act of March 10th, A. D. 1797, and the act of November 4th, 1799.</p> <p>By the first mentioned act, real estate descends to the children, if any ; if none, to the next of kin. — See section 27th.</p> <p>In that act there are but two cases in which a mother is allowed to inherit land from her child. The first is by the 29th section by which it is enacted, that if the child of an intestate dies after arriving at full age, unmarried and intestate, she shall inherit a sister’s share. The other case (see section 30th) is where the child has left a widow without issue. His father being dead, the mother then takes the same share as a sister.</p> <p>The statute of November 4th, 1799, enacts that the widow of any testator may appear before the judge of probate within sixty days after the will shall have been approved, and waive the provision made for her by will and have her dower assigned.</p> <p>The provision made for the widow by the will, was in lieu and not in addition to dower; she had her election and has made it. She took as a purchaser, that is by contract; and as that contract was understood at the time, so must it be carried into effect. And to us it appears the height of absurdity to contend ithat the testator intended, in case of the death of either of his minor children, that his widow should inherit.</p> <p>But the plaintiffs contend that they are entitled to the land in question,by virtue of the act passed Nov. 15, 1821.</p> <p>This claim the defendant resists on two grounds :</p> <p>1. That it was not the intention of the legislature to have that act apply to cases like the present.</p> <p>,2. That had t.hey so intended, they had not the constitutional power to carry their intentions into effect.</p> <p>That such was not the intention of the legislature, is apparent from the proviso contained in the 110th section of that act, (Revised Statutes, p. 358) which expressly declares that the former probate acts shall be and remain in full force as to all matters and things done or transacted during their existence to all intents and purposes, and that this act of 1821 shall not be construed to affect any right or rights accruing or incurred under any of the repealed acts.</p> <p>The will having been made published and probate thereof granted, during the existence of said former laws, must of necessity be one of those matters and things which the legislature have exempted from the operation of the law of 1821, and as such is not liable to be construed or affected by it.</p> <p>The’ two sons of Jeremiah Morrill took by the will a vested and contingent remainder, for by the will he conveyed to his widow at most only a life estate in the premises, with remainder to his sons. The remainder was contingent so far as it depended on the widow’s marrying; for it was uncertain whether the event would ever take place, but the remainder was a vested remainder, as depending on the death of the widow, for that is an event certain, the time when only being doubtful.</p> <p>The children of the testator had not only an interest as tenants in common of this remainder, but also a reciprocal interest in each other’s estate ; for if either died within age, unmarried and without issue, the survivor inherited the whole. This was a valuable interest, as the event has proved.</p> <p>This interest commenced upon the decease of the testator, and whether the right to this interest was created by virtue of the will or by force of the statute, is immaterial; for by the before-mentioned proviso it is enacted,, that the act of 1821 shall not be so construed as to affect any right or rights, accruing or incurred under any of said repealed acts or sections of acts.</p> <p>— It is contended by the petitioners:</p> <p>1st. That by the will of the testator, Joseph aud Jeremiah on the intermarriage of the said Peggy with the said John Gilman, took an estate in fee simple. A devise of all the testator's real estate, is a devise in fee simple1 — See 17 SÉESs. Rép. 68 — 6 John. Rep. 188 — 13 dó. 389 — 15 do. 169. ™ '</p> <p>2d. By the 75tH section of an act constituting probate courts, Szc., passed Nov. 15, 1821, (Revised Laws, page 334} the said-Peggy took, as heir, to the said Joseph, an undivided half of his interest and estate in said^ premises, and thereby became tenant: in common with the said Jeremiah S. Morrill, the other and' only heir to the said Joseph.</p>

This case comes here on exceptions taken to the decision of the court below, in accepting the report of referees. The action was trespass, brought originally at the county court, demanding in damages more than one hundred dollars. The referees report, that there was no testimony on the part of the plaintiff tending to show the oxen (which is all plaintiff claimed) of greater value than $53 50. The defendant moved the county court to dismiss the action.

This was a declaration in assumpsit upon three promissory notes and containing genera! counts. Plea, non assumpsit. Held: that if one person pays money, even through mistake to another, the former may maintain assumpsit for money had and received against the latter to recover it. back, Brown vs. Williams, 4, Wend. 360, Waite vs. Legget, 2 Cowen 195, Marvalt vs. Wright, 1. Wend. 355.

This was an action brought upon a judgment rendered by Franklin county court at their September term A. D. 1824. Plea statute of limitations. Replication that the defendant was committed to jail on the execution issued upon the judgment and on the 1st day of September 1826 took the poor debtors oath and departed from the.dimits of the prison.

This was art action of assumpsit upon two promissory notes described in the declaration. — Plea, general issue. The plaintiff in support of his daclaration offered to prove that the notes in question were executed by the defendant for a certain piece of land. That the defendant, William Hopps Jr. called on the plaintiff who resides in Burlington and concluded a trade with him^for the land.

This was a special action on the case for deceit, commenced against the defendant Foster and one John Taylor against whom a non est inventus return was made by the Sheriff. — Plea, general issue.

This cause being referred at a previous term of the county court By a written agreement of reference and the referees having failed to make report at the present term, the defendant now moved that the cause stand for trial in court, contending that the failure of the referees to make report at the present term operated in law to terminate their powers.

This was an action of trover for an anchor. — Plea, the general issue. On the trial in the county court the plaintiff proved that in the fall of 1832, one Ephraim Blodget, was 'sailing a boat of the plaintiff’s, on board of which the anchor in question was used, being at that time at the Isle La Mott.

This was ejectment for land in Berkshire. The plaintiff having proved his possession and actual improvement of the land sued for, commencing about thirty years ago and continued by him, till within two or three years past, and having also proved the defendants, Chaffee and Goff, in possession at and previous to the commencement of the suit, and having given evidence tending to show that they then held as tenants under the defendant Childs, Chaffee being the immediate tenant…

This was an action of debt on recognizance. — Pleas, nvl tiel record, and pleas in bar that -the court before whom said recognizance was-entered into had not jurisdiction of the subject matter of the suit. The plaintiff traversed the pleas of nul tiel record, and demurred the pleas in bar. The court decided on inspection of the record that there was such a record, and the defendant’s pleas in bar were! insufficient. Whereupon judgment was rendered for plaintiff.

This was an action on book account commenced before a magistrate and carried by appeal to the county court by whom it was referred to an auditor. At the trial before the auditor the defen-dent exhibited a charge on book against the plaintiff of $ 10,04 cents, being the balance due on a note signed by the plaintiff and one Carr.

'The facts set .forth in the bill were, substantially, these. In February 1.91.0, Daniel Ryan died, possessed of a large real and personal estate, and leaving a widow, and two children, viz : William N. Ryan and Harriet Ryan.

This was a prosecution for bastardy. The complaint was as follows: “To Calvin Fletcher one of the justices of the peace in and for the county of Grand Isle comes Jane Graves, a single woman, and on oath complains, informs and gives said justice to understand that on or about the last days of May or the first of June 1834, at South Hero aforesaid did beget a child on the body of one Jane Graves of South Hero aforesaid which said child when born will, unless prevented by a…

This was an action of assault and false imprisonment. — Plea, general issue, with a justification of the assault and imprisonment. Replication — That at the time of the assault and imprisonment, the plaintiff was a soldier or artificer in the United States service, and that his body could not be arrested or imprisoned, on any debt or contract for a less sum than twenty dollars.

In this case defendant was sued upon a note of hand,- purporting-to be payable to plaintiff for twenty-six dollars, dated August IS, 1884 and to be due and payable on or before the 1st day of Jan*' uary A. D. 1835. The case was tried before a -justice of the' peace ; there was a judgment for defendant and it was appealed to this court.

The action in this case was assumpsit founded on a promissory •note written in the French language, and of which the following is an accurate translation: “■St. Antoine, April 8, 1819. £22,5,0. In the course of next summer, 1, Joseph Page* residing in Vermont, Addison County, town of Monkton, I promise to pay to the order of Mr. Joseph Cartier Jr. of St. Antoine, Chambly River, twenty-two pounds, five shillings currency, for value receive Jed in merchandise.

This was an action of trover for a pair of horses. It appeared that on the 10th day of September 1834, one George Gray purchased a pair of horses of the plaintiff, to be paid for in drawing lumber within two years from the purchase, and that if the horses were not paid for at the end of two years, then the said Bigelow was to have a right to the horses. It further appeared that the horses were exchanged in October 1834 for the horses for which this suit was brought.

The object sought in the bill and cross bill is to compel the offset of claims existing between the parties. The questions here decided arise upon the claims set up in the cross bill.

This was an ejectment for lands [in Bridport. The plaintiff in support of the issue, gave in evidence a mortgage deed from one Farmery Hemmingway to himself, dated Dec. 2, 1829, to secure payment on a note for $562,00 together with the terms described in the condition.

This was an action of ejectment commenced at the county court .against Cyrus Adams and .James Adams. Cyrus Adams suffered a default. But James set up a title under a deed from Cyrus. The cause was passed to this court by exceptions taken by the plaintiff to the charge of the court to the jury on trial below. The facts in the case are stated by the chief justice in delivering his ^opinion.

This was an action on note, made payable to Margaret Hall or bearer, and sued in the name of Sweat the bearer.

This was a factorizing or trustee process, brought against Clark as trustee of Newell. Held: that the pension money, thus situated, was not liable to attachment by this process, and adjudged that Clark was not trustee. To this decision the plaintiff (incepted. After argumenj by the

This was an action on note, dated Jan. 4, 1834, at Danby, and made payable to the order of the plaintiffs in nine 'months from date, at the Bank of Manchester. The declaration is in common form describing the note as payable at the Bank of Manchester, without averring, that it-was presented for payment at the time and place. To this, declaration there was a demurrer, and the court overruled the demurrer and gave judgment for the plaintiff.

<p>The sheriff of another state cannot pursue and ¡retake in this state a prisoner who has escaped from his custody, on civil process.</p>

<p>Where an order of removal of a pauper had been made and the pauper remov. ' ed, but the time for taking an appeal had not transpired; it_is competent for the overseers of the poor of the two towns, by mutual consent, to abandon the said proceeding, take back said pauper, and thus place all things as if said order had not been made.</p>

This was an action against the defendant as sheriff of Rutland county for the neglect of his deputy, Pond, in not collecting and paying over the amount of a certain execution in favor of the plaintiff against Quinton and Church, On the trial before the county court it appeared that said execution had been collected by said deputy who had offered to pay the amount to the plaintiff, who directed him to pay the same to William Spooner, to whom said debt in fact belonged, and…

<p>In the case of labor performed on land, under a special contract, but not strictly according to the tenns of the contract, if it be of some benefit to defendant, the plaintiff may recover on a quantum meruit, as much only as the labor is worth to defendant.</p>

This was an action of debt on a jail bond, given to the plaintiff as sheriff of Rutland county on admitting Philo D. Hart to the liberties of the prison, when committed on an execution in favor of Lowell W. Guernsey.

<p>In the case of a warranty against all claims of a certain character, in case suit brought against the covenantee, he must notify the covenantor or the ’ judgment will be considered strictly res inter alio s acta.</p> <p>The warrantor may in such case contest the judgment on its original merits, and by showing it without just foundation, compel the covenantee to bear the loss of a payment made under it, as a voluntary payment.</p> <p>But the eovernantee may submit to pay the claim even without suit, and in that case will recover of the warrantor by showing it to have been a claim which he could not have resisted.</p> <p>No obligation rests upon towns, aside from the provisions of the statute to sustain their poor, nor can they be compelled to pay for the necessary support of an acknowledged pauper, unless by express contract with them in their corporate capacity, or witli the overseers in the mode pointed out by statute.</p>

This was an action of book account, in which plaintiff claimed to recover for certain cart and wagon hubs, sold and delivered to defendant. The auditor reported for the plaintiff, and stated the following facts as the basis of his report. The contract between the parties was as follows.

This was a suit which came up from a justice of the peace by appeal. The record showed that the cause was adjourned in the absence of the justice before whom the writ was returnable, by Z. Howe, Esq. who was bail for the prosecution. The defendant moved to dismiss the suit, contending that Howe had no jurisdiction in the case, and to the decision of the court, dismissing the suit, the defendant excepted.

This was an indictment for not opening and making a certain road, laid by the road commissioners, described in said indictment. On the trial the defendant offered in evidence a copy of the record, showing a discontinuance of said road, by the select men of Shrewsbury ; to which evidence the attorney for the government objected, and the same was rejected by the court. To which decision of the court, the defendant excepted. Exceptions allowed and ordered to supreme court.

<p>This was an action of assumpsit brought by the plaintiff to recover for board, washing, lodging, doctoring and other necessaries furnished and provided for one Patty Preston belonging to and resident in said town of Wallingford. It appeared on the trial that said Patty, on the 24th day May, A. D. 1834, she being then about twenty four years of age, became suddenly sick and remained so until her death, in the month of December following, and during all that time required constant nursing, doctoring and other necessaries ,• and that the plaintiff furnished the same to the said Patty from the said 24th day of May, A. D. 1834, to the day of following. It further appeared on said trial, that two of the select men of the town of Wallingford requested the plaintiff to take charge of the said Patty and furnish her with every thing necessary, and that the town of Wallingford would compensate and pay him for the same. It appeared further, on said tria] that said Patty, in October, A. D. 1833, was taken sick, and for a_ short tithe was.furnished and assisted with medical advice and attendance by one of the select men of the town of Wallingford, when she partially recovered and was able to be about; the expense of which medical advice and attendance was paid by orders on the town treasurer, drawn by the select men in the usual .way. It also appeared that said Patty, as early as the year 1825, com-mencéd going out to work for herself, and'continued thus.to. work at different places till she became sick and deranged; and she did not appear to have become chargeable to the town, except as has been before - stated ; and that in the year 1833 and 1834, when the said Patty was relieved, as aforesaid, there were three select men in said town of Wallingford and they were the overseers of the poor. The court decided the said town of Wallingford was liable for such supplies and necessaries as the plaintiff had furnished said Patty, and the jury returned a verdict accordingly; to which opinion the defendant excepted.</p> <p>'The contract made with the plaintiff by the overseers, is not binding on the town.</p> <p>Where a poor person, belonging to a town, applies to the overseers for relief, the statute has pointed out the way in which relief may be afforded, and this must be pursued. — Statute Ch. 47 No. 1 — See 20, Lovell vs. Pownall, Bennington county supreme court, Feb. term, 1833 — Middlebury vs. Hubberton, 1 Chip. R. 205 — Jamaica vs. Guilford, 2 do. 103 — Aldridge vs. London-derry, 5 Vt. R. 448 — Londonderry vs. Windham, 2 do, 149— Essex vs. Mil-ton,- 3 do. 17 — 12 Mass. R. 333, 452 — 14 do. 396, 448 — 4 Con. R. 553 — 8 John. R. 249, .323 — 16 do. 281 — 18 do. 382.</p> <p>It appearing from, the case, that the. town of Wallingford was liable to support the pauper, the only question is, whether the supplies were furnished under, such authority as will bind the town ?</p> <p>I. A majority of the select men, as overseers of the poor, are competent to make a valid contract that will bind the town. — Statute 370, 2d sec. — Middlebury vs. Rood, 7 Vt. R. 125.</p> <p>II.. The only remaining question is, can the select men, as overseers, make a valid contract for the support of the pooi, without an order from a justice of the peace ?</p> <p>1. The statute having required the towns, peremptorily, to supPor£ ^)e poor, it would seem to follow, that those officers elected for the purpose of performing this duty, roust have power to fulfil the obligation resting upon the town. If the select men, as overseers 0f the poor have not full power to support the poor, then the town cannot do it, for they act only by their agents. To hold that overseers can only furnish such support as a justice may order, is interposing a check upon thip action of the town, entirely inconsistent with the obligation resting upon them. The justice being no officer of the town, cannot be, in any manner, controlled by them. The language of the 2d section, requiring the overseers to provide houses, nurses, physicians and surgeons, in such case as they or a majority of them shall judge necessary, &c., is entirely incompatible with the idea that their action is to be controlled by a justice of the peace.</p> <p>2. The 20th section of the statute is only applicable to those cases where the pauper has never been relieved by the town. ■ The pauper in this case having been before relieved by one of the select men, and his acts adopted by the payment of the bills, no judicial enquiry was necessary to charge the town,</p> <p>3. The 20th section of the statute is only applicable to those cases where a person has not been supported by the town, but requires some assistance in aid of his own exertions. The 2d section enacts, that every town shall relieve, support and maintain, &c. Relief and support are very different things. The 20th section says, that if any poor person shall apply for relief, manifestly contemplates something different from support. The 5th section, imposing a penalty on the overseers in certain cases, omits the word ‘relieve,’ because the case to which the section is applicable, obviously contemplates an entire support.</p> <p>4. If it should be considered that the overseers of the poorcan only draw money from the treasury in the manner pointed out under the 20th section, yet it by no means follows that they cannot make a valid contract for the support of the poor.</p> <p>5. The select men have powers far more extensive than overseers, and are competent to charge the town by their contract.</p> <p>6. The construction contended for would make the statute wholly inapplicable to numerous cases. A pauper in sickness requires, it may be, a daily charge in its support. What would be an ample provision to-day might be wholly insufficient to-morrow.</p> <p>7. The construction which the statute has received through the state from its passage to the present time, should be decisive upon this point; for if it is considered that the meaning of the 20th section is doubtful, yet a construction has been adopted by general consent, which ought not to be disturbed.</p> <p>8. The 20th section is merely directory to the overseers, and cannot affect a third person who contracts with them in their official capacities; for they have no means of knowing whether the overseers have obtained the requisite order.</p>

This was an action, on the the case.. The plaintiff states in his declaration that the defendant sued out a writ against him, which was signed by R. Gibson Esq. justice of the peace, and delivered to Fitch a sheriff’s deputy, who arrested the body of the plaintiff, took bail, made his return thereon, and delivered it to Solomon Foot Esq. the attorney of the defendant, whose name was indorsed as attorney on the said writ, and that the defendant did not, nor did any one for…

<p>A full statement of this case is comprised in the opinion of the court.</p> <p>It is said in Starkie’s Evidence, vol. 1, p. 252,93d sec. “a judgment, decree or sentence may be impeached by proof that such judgment never existed, or was void ab initio; secondly, that it was fraudulent and covinous; and thirdly, that it has been revoked.</p> <p>The plaintiff in this case offered to prove by parol evidence, that the settlement of his account was fraudulent and covinous ; and it is a well settled rule of law and equity, that fraud is an extrinsic, collateral act, which vitiates all transactions, even the most solemn proceedings of courts of justice. — Starkie vol. 2 pages 586-7.</p> <p>The settlement with the probate court comprehends all the proceedings of the executor in the performance of the conditions of his bond, and it cannot justly be said that we go back to proceedings anterior to the allowance to make out the fraud, when we offer to show that the account allowed by the probate-court was false and fraudulent any more than when we offer to show that there was trick and artifice practiced at the time of its allowance, because it is one continued act of fraud. We cannot go back of a judgment to show an usurious contract upon which it was founded.</p> <p>The bond is an independent security for the faithful administration of the estate. In this case it is alleged in the declaration that the executor fraudulently sold the estate for less than its value and procured it purchased in for his own benefit, and in rendering his account has charged himself with what he gave, but not with the value over and above what he gave. He pleads his administration settlement in bar of the plaintifPs claim for this balance. The plaintiff denies that he has rendered a true account, and offers to prove that he has fraudulently kept back a part of the estate.— See Gordon vs. Clapp, 5 Vt. R. 129 — Warren vs. Powers, 5 Con. R. 373. Let it be granted that decisions of courts of competent jurisdiction are binding for and against the parties and privies thereto, this rule does not extend to matters that clearly were not directly in issue and were not adjudicated upon. — Darling vs. Hull, 5 Vt. R. 91 — Whiling vs. Corwin, 5 Vt. R. 451 — 1 Starkie 202 — 6 Vt. R. 20.</p> <p>It is not contended that the same matters decided by the probate court, may be redecided, but it is contended, that, although he rendered an account, he did not render a true account, and the plaintiff seeks a recovery here for what he can prove was fraudulently kept back by the executor and of which .no account has been rendered.</p> <p>Neither can the allowance of the account by the probate court, unappealed from, be construed into a release of the principal or surety in the bond. In the case of a jail bond, a discharge of the principal by a court of jail delivery does not cure a breach of the bond committed before the discharge. — Story’s Conflict of Laws, p. 499 — Starkie on Evidence, part 2d, sec. 77, 79 to 83 — So, in case of a discharge fraudulently procured-^-6 Vt. R. p. 251, Richards and Truesdall vs. Hunt.</p> <p>The court of probate is made, by statute, a court of record, and has an exclusive jurisdiction, although limited to the cases provided for by statute.</p> <p>The subject matter of the accounting in this case, was proper to be enquired into by the probate court. Before allowing an administrator’s or executor’s .account, notice issues to all interested, to appear and object to the .allowance of such account, and if any one thinks himself aggrieved by .the decision of the probate court, an appeal is given.</p> <p>In this case, then, the probate court had exclusive jurisdiction, and the correctness of their decision cannot be collaterally impeached, orín any way enquired into, except pn an appeal taken. —1 D. Chip. 423, Probate Court vs. Fillmore — 2 Vt. R. 440, Barlcer vs. Rogers- — 2 Vt. R. 338, Hendriclc and Wife vs. Cleveland.</p> <p>The evidence offered was parol, and was offered to impeach that which had once been examined before a court of competent jurisdiction and made matter of record. In short, the offer was to impeach the record by paroL</p>

<p>A presumption against the titlo of the mortgagee, arises from mere lapse of time, in favor of a stranger.</p> <p>Where the possession has Been vacant, courts will not presume any thing against the legal estate.</p> <p>Where an administrator held a mortgage for the benefit of the heirs, he may make a valid conveyance to the heirs, notwithstanding an adverse possession in a stranger.</p>

. This was an action on the following promissory note executed by the defendant to the plaintiff. “ $22 50. Sunderland, Dec. 23d, 1833. One year from date I promise to pay G. Bradley or bearer, twenty-two dollars and fifty cents for value received, with interest.

Davis commenced two actions against Barton at the same time • one on book, returnable to the county court, and one on two notes of hand, before a justice of the Peace. This last action was by-Barton appealed to the county court, and there he filed thereto his plea in set off on book, which is the last entitled case above mentioned.

This was an action on the case, and the plaintiff declared as follows: — ■ “ Fflf that the plaintiff, at the city of New-Yoik aforesaid, on, &c., at the special instance and request of the defendants, deli veiled to the said defendants a certain cask of cheese, and the defendants did then and there undertake, promise and agree with the plaintiff that they would sell the said cask of cheese for cash — that they would pay the plaintiff for the same when sold, after deducting 2…

<p>This was an action of covenant broken. The declaration in substance alleged that on the 18th of January, 1825, by a certain deed of indenture of apprenticeship, made by Thomas Sheldon and Seth Moore, overseers of the poor of Rupert, on the-one part, and the plaintiff of the other, signed, sealed, Sic. — the said overseers did apprentice to the plaintiff, one A- L-, a poor boy, then chargeable to said town, of nine years of age, to serve and dwell with the plaintiff until he should attain the age of twenty-one years ; during all which time it was covenanted and agreed, on behalf of said town, that said A- L- should faithfully serve the plaintiff; to which covenant the said overseers, by the authority in them vested, did bind said town. — That said A-L-entered upon said service, but afterwards, in January, 1833, without cause, departed the plaintiff’s service, and has ever since remained absent, to the plaintiff’s damage, Sic.</p> <p>To this the defendant pleaded, first, Non est factum — second, after oyer of said indenture, performance on the part of the defendant. Issue.</p> <p>On the trial in the county court, the plaintiff showed that the overseers executed said indenture, and said A- L- entered on said service, and left the same as alleged, but showed no other authority in the overseers than such as the statute created.</p> <p>The court decided that the plaintiff was not entitled to recover, and rendered judgment for the defendant; to which the plaintiff excepted, and the cause passed to this court.</p> <p>The question in this case is, whether the town of Rupert are bound by the covenants in the indenture executed by the overseers of the poor. We contend they are.</p> <p>1. By the 2d section of the act relating to a legal settlement and support of the poor, (page 370,) every town is bound to support and maintain their own poor: And by the same section it is made the duty of the overseers of the poor to relieve, support and maintain them. But on whose account and at whose charge?— Most certainly the town. The overseers in this, act as the agents-of the town.</p> <p>2. By the 18th section, (page 377,)- the overseers of the poor are empowered to set at work all such children as are chargeable to such town, in the work-house or elsewhere, or bind them apprentices, as they shall think best. But on whose account are they to be set at work ? and at whose expense ? and on whose account are the overseers to bind them out ? Most clearly the overseers act in behalf of the town, and as their agents in this business.</p> <p>The overseers of the poor in this business, do not act as the agents af the law, as is said by JudgeSwift in his Digest, (page 62.) The fact is simply this: — the agency is created by the law ; and when the overseers act, they act as the agents of the corporation, and in their behalf. As well might you say, the overseers, in supporting and relieving the poor, and in setting them at work in the town’s work-house, act as the agents of the law, and not of the town.</p> <p>3.We think the overseers are empowered by the act itself to bind out such children as are chargeable to the town, for and in behalf of the town, and as the legally constituted agents thereof, and if so, it would follow that the town is responsible on its covenants. The act itself declares, “ such binding shall be good- and effectual in law to all intents and purposes.</p> <p>It is very apparent the town is not liable to the plaintiff for the desertion of the apprentice. In binding out poor children, the overseers are the agents, not of the town, but of the laws. They are empowered by the statute to bind the’ apprentice and not the town, and of course can insert no covenant on the part of the town. — Stat. Ch. 47, No. 1, Sec. 18 — 1 Swift. Dig. 62. I'n this case there is no covenant to be found in the indenture, making either the overseers or the town responsible for any act of the apprentice-</p>

This cause came to the county court upon an appeal from commissioners, and tried upon facts agreed upon, to wit: 'That the account on the books of said Raymond, deducting the credit, amounts to $467 90 And the account on the books of E. Isham, deducting the credit, amounts to 150 97 ^Leaving a balance as principal, ($316 93 We find the accounts of the parties commenced in 1816, and ■continued in mutual deal until the year 1830.

<p>This was an action on the case for special damage to the plaintiff from the insufficiency of a certain public highway and bridge in Guilford. Plea, general issue, and trial by jury.</p> <p>The plaintiff introduced testimony tending to show that he was travelling with a horse and chaise on the stage-road through Guil-ford, on the 24th of June, 1834. When he arrived at Broad Brook in said town, he found the bridge across said brook gone, which bridge it was admitted Guilford was bound to maintain; that therefore he turned into a way on the adjoining land leading down the bank and across said stream around said bridge — that this way was opened by the owner of the land, on the occasion and under the circumstances hereinafter mentioned — that the same, immediately after leaving the highway, necessarily descended a steep bank into a level plain — that the way down this bank was about nine rods long, and of an elevation of from 12 to 14 degrees. — It was a dug-way into a side-hill, and the only guard on the lower side consisted of logs and timbers from 12 to 15 inches diameter, placed and secured by stakes on the lower side of said road. — The down-hill’ end of each timber was laid upon the upper end of the timber below, and so continued the whole length of said hill', with some' sticks or' stones laid occasionally under''said timbers. In descending this hill with his chaise,- both the horse and chaise of the defendant went off over said muniment, and were precipitated down into the plain, 12 or 14 feet, and the chaise thereby much broken- and damaged. — —The plaintiff introduced testimony further fending to show that the dug-way might have been made longer, and the. elevation thereby reduced, at a' few dollars’ expense but on this point, the testimony was contradictory.</p> <p>The defendant introduced testimony tending to show, that oaf the 25th day of May, 1834, an unusual and extraordinary freshet took place on this stream, occasioned' by a sudden and violent rain. On the next day in the morning, being Monday, the selectmen of Guilford were out: one of them, on the way, came to.this bridge* and finding the same gone, applied to a Mr. Gale,- the owner of the adjoining land, to open his fences and proceed to arrange this by-way in such manner as that people might get along while the bridge was rebuilding: This had been dbne, whenever the bridge was repairing, for forty years past. — That- thereupon Gale opened bis fences, and men and teams were procured, and this dug-way was completed and used. — That said selectman then, after leaving said request with Gale, proceeded to meet the other selectmen, who proceeded to examine the damages occasioned fey the freshet* They found the damage extensive nine bridges across said stream were carried off in that town — the highways greatly injured, and in one place 60 or70 rods of road entirely gone. — They there laid, out a new highway — put some of the minor bridges in immediate’ contract, and gof some people af wórk, and near night returned to' the bridge in question, and endeavored to contract for the same, feut did not succeed. They inserted in the next Brattleboro’ pa-per, which was published on Saturday, that all the bridges not previously let by private contract', would be let at public vendue on Wednesday of the next week; and on Wednesday, June 5th, this' bridge, with all the others not previously contracted, Were let out to be erected. This bridge had never before been carried away by freshet; but now, though the same had been rebuilt but two years before, one of its stone abutments was swept off,- and the soil near six feet below. Gale, who contracted to rebuild said abutment afc commenced drawing the stone the next day after he took the contract; and as soon as the water had subsided sufficiently, he employed hands and kept three or four men constantly laying the stone, which was as great a number as could be conveniently so at work; and he drew the stone from thirty rods to a mile, and kept the stone-layers constantly supplied until the abutment, which was twenty-one feet high and contained forty cords of stone, was completed, which was on the 3d day of July ; and the wood-woik, being prepared, was immediately put on, and the bridge rendered passable on the 4th day of July. — The whole expense of this bridge being about four hundred dollars, and the whole damage to the roads and bridges in that town,, near three thousand dollars.</p> <p>The defendant also introduced testimony tending to show, that the plaintiff was informed of the condition of this road and' bridge before he arrived there, and conducted with imprudence in his mode of descending said hill..</p> <p>The'plaintiff requested the court to charge the jury, that if the bridge was carried away by a freshet, the town were by law required to rebuild the same as soon as might be. — That if they delayed for the mere purpose of consulting their own convenience or profit, they were negligent and liable for damage occasioned by want of the bridge." — That if they used all proper diligence in building the bridge, but in the mean time made a road across the stream elsewhere for the public travel, and used it themselves, such road was a highway within the statute; and they were bound, while it was kept open, to see that it was sufficiently safe. — That if they allowed it to be of greater elevation than was necessary, or in case the elevation could not be avoided — did not provide a sufficient railing to prevent accident,, they were liable. — That if the injury happened in some-measure by the conduct or management of. the horse, when it could not be rationally expected to have happened, if the road had been properly made and guarded, the town were liable.</p> <p>But the court declined so to charge the jury, but did charge them as follows : — It is the duty of towns to make and keep their highways and bridges in good and sufficient repair — safe for the traveller — using ordinary care and prudence; and if special dam»age arise from insufficiency or want of repair, the town is liable. It seems that the bridge was providentially destroyed on the 25th day of May. This bridge, it was .the duty of the town immediately to rebuild with as much dispatch as the magnitude of the work, under the existing circumstances, would reasonably permit. The town was not bound to rebuild it with a dispatch which was entirely inconsistent with, or utterly regardless of economy and their own interests; nor were they to consult their own convenience only ; but were bound to rebuild it immediately — using all that diligence which the importance of the road, the magnitude of the work, the difficulty of procuring materials and other circumstances necessarily connected with such a work would reasonably permit. If the town were guilty of neglect in the performance of this duty, and thereby the plaintiff was compelled to seek his way around the bridge, and in so doing, using ordinary prudence, he was injured, the plaintiff is entitled to recover.</p> <p>It may perhaps be questionable, whether, if the town use imme--díate and reasonable diligence in the repair of sudden and providential injuries to roads and bridges, they are bound to make any temporary by-ways to be used in the mean time, or thereby to assume new and additional duties or liabilities by such act of gratuity.</p> <p>This town did, however, open and repair a by-way- around this bridge, on which by-way this injury happened. In .inquiring whether this way was sufficient, or out of .repair, -the jury will consider, the occasion for which that way was opened — the length of time and nature of travel for which it was expected to be used. If the way was as sufficient and in as good repair as was reasonably demanded -for such purpose and occasion, then the town are not liable. But if that way was not even sufficient for the occasion for which it was made and used, the jury will inquire whether from such insufficiency the plaintiff has been injured. If the injury is in whole or in part owing to the plaintiff’s want of using ordinary care or prudence, then be is not entitled to recover : but if this way is found insufficient and out of repair, as before explained, and the damage accrued to the plaintiff .thereby, then the town is liable to pay the same.</p> <p>The jury returned a verdict for the defendant, -and the plaintiff filed exceptions, whereon the case passed to this court.</p> <p>There being no question made in the case as to the general liability of the town to repair the bridge, and in the mean time -the road, the questions raised relate to the extent of the liability in regard to each.</p> <p>1. Ns to the Bridge — The plaintiff contends that the obligation was to repair immediately if practicable, and that if the town delayed in so doing, it was at their own risk; and for damages happening during that delay, by reason of the insufficiency of the bridge, ■the town was liable. — That the practicability of rebuilding the _ bridge was settled by the ultimate repair, which in that respect ¿nade it a question of time only. — That the town having delayed providing in the actual repair for the space of at least 11 days, it was o.f itself such negligence as made them liable, especially if the public travel was suspended, or during that time turned down a declivity. — That this delay was no,t excused by waiting to advertise -for ibuilding-jobs in .a newspaper to be printed six days afterwards, because such jobbing was wholly unnecessary, and if permitted in such cases by law, not to be indulged to the extent of the delay.</p> <p>2. As to the Road. — The plaintiff contends that the town, be^ ■ing obliged to keep it in repair, it was (while the obligation existed) placed on ¡the footing of all other legal roads, viz., sufficiently safe for all the travel, which usually passed on the stage-road thro’ ,the town. — That from 12 to 14 degrees of declivity was of itself .unsafe; and only to be excused by the impracticability of making it lower, and single timbers of 12 to 15 inches diameter each, with one extremity on the ground and the other on the timber below throughout the declivity, was not a sufficient safeguard on the low--,er side; and that after the request to the court, the attention of the jury ought to have been called to both these circumstances.</p> <p>3. As to both Bridge and Road, — That if the injury happened under such circumstances that there was good ground to find that it would not (without wilfulness on the part of the plaintiff) have happened if .the road had .beep in repair, the plaintiff was entitled to recover.</p> <p>The question in this case arises upon the charge to the jury. Of this we think the plaintiff has no right to complain. The charge restricted the jury to find, if they found for the defendant, 1st, That the town proceeded to rebuild with all proper and reasonable dispatch, governed only by an economy pot inconsistent with, or utterly regardless of their own interests. — 2d, That the temporary way was as sufficient as was reasonably demanded for the occasion. Or if they found otherwise qpon .either of these .points, they must find, 3d, That the injury was in whole or in part owing to the plaintiff’s want of using ordinary care and prudence.</p> <p>Any thing short of the .doctrine laid .down on .the first point, would compel the town to erect' a bridge of unsuitable materials, and of too frail a structure. — Any thing short of that on the second, might, and in the very instance in question would, haye been an impossibility. For how are the rocky and precipitous banks of our rivers to be safely passed without bridges ? But while a bridge is in building, a temporary way is all that can be bad : and the character of this must be regulated entirely by the character of the precipice to be surmounted, and not at all by the common standard for ordinary highways ; and of this every traveller is bound to take notice, and govern himself accordingly, at his peril. The charge ■then was correct on both points, and there was sufficient evidence given to warrant the jury in finding according to the charge. But -if there was not, they then found, agreeably with the charge, that the party injured was himself in fault.</p> <p>It must be borne in mind, that the way in question was through a private enclosed domain. — That it must be made under license of, and when the owner chose to direct, if made at all; or else by such outlet used for the occasion, time out of mind, if there be one.— Com. Dig. Tit. Highway, 1 Rol. Ab. 390. — That the town had no way to compel the owner to give a license, either to have his soil dug down, or the way extended contrary to his pleasure.— That the traveller on such an emergency must be content with such accommodation as the owner chooses to give, or, or go back and take some other more safe road round the obstruction, at his election. If.be chooses to encounter the obstruction, he must know the discipline and .ability of his beast at his peril ; and is bound to direct and govern both his beast and himself — not with imprudence, .certainly,; but with all the ordinary care, skill and prudence pf a careful and prudent man. And the measure of care and prudence in such case is not to be governed by that which would be neces■sary and proper upon' an open, unobstructed, finished highway ; but by that which would be required in getting over, or around an obstruction upon a road .or bridge then actually under the process of repair. Upon an open road left as finished, it might be deemed prudent management and ordinary care not to bold up a horse under full trot; or even on a proper occasion, greater speed. But when a bridge is swept away, and a large gulf opened, and work, .men all about employed in rebuilding, and the traveller otherwise specially notified of the perils of the occasion, he must not persist to continue his unbroken speed, nor to ride over the dangerous gulf, if to ride would increase the hazard-; nor to direct his restive beast with his own imprudent or unskilful hand ; nor refuse aid when tendered to him.</p> <p>Such, among other facts, were given in evidence; and we may suppose even stronger ones, when the plaintiff, in drawing up fife case, states, that he conducted with imprudence in his mode of descending the hill. Can it be said then, in this case, that the parly injured is in no fault 1 But the jury peradveniure found that he was. The court charged, if the evidence would warrant it, they might so find ; and that such would be a defence to the action.— And so is the settled doctrine of the law.— 1 Vt. R. 357' — 4 Mass. R. 483.</p>

Adams, through whose land a highway had been laid by the selectmen of Newfane, applied to a justice of the peace, according to the statute, to appoint men to appraise the damages occasioned him. The appraisal was made, and it exceeding forty dollars, the proceedings were returned to the county-court, where objections were made and heard on behalf of the town. The county court overruled the objections and established the return, and made order for the payment of the money.

A statement of the case, so far as necessary to apprehend the' points decided, is included in the opini'on of the court. The statute 1821,-(Comp. Laws 139) enacts that, with certain exceptions which are therein enumerated, “any justice of the peace within his sphere is authorised to hear, try and determine all actions of a civil nature, when the debt or matter in demand does not exceed; one hundred dollars. — See to jurisdiction of county court, C. L. 119.

^This action being originally sued before a justice of the peace, OB the return day of the writ the subscribing magistrate being absent, another magistrate continued the cause, under the statute of 1832. The continuance was entered upon the files in these words : ■“ Townshend, January 29th, 1835. The signing magistrate being .absent, I continue this cause till the 2Sth day of February next,” &c., signed W. R. Shafter, Justice Peace.

This was a case of exceptions to the report of auditors; that two of the auditors, at the time and place notified by the chairman, met for the purpose of a hearing, and neither the defendant nor any other person for him, attended at the place appointed, either then or at any subsequent time, and one of the auditors not being able to attend, on account of ill health, the two auditors adjourned to the residence of the third, where the hearing was had.

<p>town officer cannot recover pay for his services unless by express vote of the town, or what is equivalent.</p> <p>Pubitatur, whether a constant usage in relation to that particular office, from year to year, will impose any obligation upon the town to pay such officer, where no express vote has been had to that effect.</p> <p>'J.’he .contemporaneous construction of a statute and long established practice under it, give an exposition of' its spirit and intention, which courts are not at liberty to depart from.</p>

This was an action of assault and false imprisonment, alleging that the defendants took the plaintiff at Windsor, and transported him to Woodstock, in Windsor county, and there kept him confined and imprisoned for the space of 120 days.

<p>A statement of the case will be found comprised in the opinion of the court.</p>

This was assumpsit in two counts: the first on a promissory note, dated July 5tb, A. D. 1830, for $ 1150, payable on demand; the other on the same note in connection with a written condition or contract entered upon the back of the note.

Assumpsit upon a promissory note, executed by the defendant and one Thomas Conant, made payable to Gilbert Allen or order, and by him endorsed to tbe plaintiff. Tbe writ issued against both signers of sai$} note, but a return of non est inventus was made as to Thomas Conant, and tbe action was entered and prosecuted against the defendant only.

This was an action of trespass on the case. The declaration charged, in substance — That the defendant conspired with one Temple, (a person of little or no responsibility,) to procure property on the credit of Temple, for the common benefit of both.— That for that purpose the defendant furnished Temple with the means of appearing among strangers as a man of substance and fit to be trusted. — That Temple thus prepared applied to the plaintiff, who was ignorant of his true…

Debt on jail bond. The only ground of defence brought to the notice of this court is stated in the following plea in bar : And for further plea, by like leave of the court, defendants say, that they ought not to be charged with the said supposed debt, because they say that the skid Crooker was never legally committed to jail as in plaintiff’s declaration is alleged, in this, that the said alleged commitment Was made by one Jairus Josselyn, as deputy sheriff, who atibe time…

This was an action of assumpsit on promissory note, dated April 22d, 1819, for $120, or four .cows and calves, four years from the month of May following the date.

This is an action brought by a common informer to recover the penalty under the statute prohibiting usury. The summary of the case was this: — One Benjamin Clapp obtained a' loan of money of this defendant Downer upon usurious interest and mortgaged his farm in Barnard to secure the payment. On failure of payment Downer brought his action of ejectment for the farm, recovered judgment, and Clapp filed his motion to redeem-.

This was an action on a note of hand of the following tenor: “$1456 67. Cambridge, Jan. 2d, 1834. “ For value received, we promise to pay Sylvanus Bryant, or’ order, fourteen hundred fifty-six dollars and 67 cents, in fifteen days from date. (Signed) REUBEN DAMAN) SYLVESTER EDSON.” The writ was prayed out against both signers, and bore date January 20th, 1834, and was served on Edson the morning of that day, and a non est inventus returned as to Daman.

This was an action of trespass, for taking a certain heifer, brought by appeal to the county court. — Plea, the general issue, to the court. On the trial the following facts appeared. Artemas M. Pierce was the owner of this heifer. On tho fiist of January 1835, he put her to one Aldrich, to be kept and fed out the winter and until grass.

This was an action of debí on penal bond for $4000, with the following condition annexed : “ The condition of this obligation is such, that whereas it is agreed between the parties that the said Lewis F. Gallup shall take all the goods, wares and merchandize and store-furniture belonging to the late firm of Gallup & Taylor, being such property, and at such price as the same shall be ascertained and appraised by Lyman Mower and John Bement, and after deducting the capital…

This was an action of trover, for a mare, to which the defendant pleaded not guilty, with notice in writing that defendant attached the same as the property of one Abel Willson.

This was an action of debt on judgment. Plea, Nul Tiel Record, and also a plea in offset, stating, that at the term of the county court, when the judgment declared on was rendered, June term, 1829, the defendant had considerable claims for payments, and demands to set off against the claims of the plaintiff in that action: that it was then agreed that the defendant should suffer judgment to go by default in that action, and he make no defence, but suffer judgment to pass for…

<p>After argument by</p>

Ejectment for ten acres of land in Bradford, claimed by the plaintiff as dower in the estate of Jacob Corliss, her late husband. — ■ Plea, the general issue. The cause was submitted to the jury on the following testimony: It was conceded that both parties derived title and claimed under Emerson Corliss.

This was an action of assumpsit in five counts. The first count declared in substance that the defendant together with the plaintiff, David Warden, Andrew Warden and William Warden-had been co-partners in trade and that they had dissolved partnership, and the defendant had assigned all the debts and claims to the three said Wardens; that among these claims was one against Eliza Doe in account; that the defendant in consideration that said David would discount and deduct from…

<p>In actions of book account, coming into this court by exceptions, no questions can bo revised except questions of law arising either upon the facts reported by the auditor, or else found by the court, and placed upon the record.</p> <p>It need not appear of record that the auditor was sworn. That wil} bo presumed, unless the contrary appear.</p> <p>If the auditor proceeds without evidence to nnd facts, or if upon incompetent evidence or against all evidence he find facts, this should be shown by the report or by evidence addressed to the county court, if the auditor refuse to report, and in that case the report cannot be accepted.</p>

This was an action of book account, sued before a justice of the peace. The writ issued against this defendant and another, and no service is made, nor any excuse for want of service upon the other defendant. This defendant entered a general appearance before the justice and' went to trial on the general issue. The case' came by appeal into the county court and this defendant then pleaded in abatement the want of service on the other defendant.

This was an action of trespass on the case, to recover of defendant, as prudential committee of district No. 14, in the town of Calais, on- the alleged ground that the plaintiff not being an inhabitant of the district, and having no property liable to be taxed there, was aggrieved by being taxed by defendant.

This was an action of trespass for burning tbe plaintiff’s bridge .over Onion River at Waterbury. In the .county court, tbe defendant, in support of the issue on his part, offered the deposition of Dan Corss, taken at Waterbury on the 24th day of March, 1835, before Wm. W. Wells, Esq., justice of the peace within and for said county of Washington.

It was agreed by the parties in the above suit, which was brought to the county court by appeal, that the following facts shall be received by the court as the evidence in the .case.

This was an action of the case brought against the defendant, as sheriff of Caledonia county, for the neglect of Benjamin Perry, a deputy sheriff of the defendant, in .making an insufficient return of the levy of an execution in favor of said Ira Day & Co., against John Bolls. Plea — General Issve.

Ejectment for lot No. 3, in the 6th range and 2d division of lots in the town of Roxbury, drawn to the original right of Asa Taylor. — Plea, not guilty.

This was an indictment against the respondents for resisting an officer in the execution of his office. Plea — -not guilty.

This was an action of trover for a horse. — Plea, the general issue and trial by jury. On the trial the defendant produced the following contract:— “ Barre, February 25, 1834. “ Sold to Emerson, Dudley and Torrey, one bay mare for eleven dollars and forty-five cents, for which I have received my pay in cash, and deliver said mare to said Emerson, Dudley and Tor-rey as their own property.

This cause came up from the county court on the following hill of exceptions; This was an action of assumpsit for monies, expenses and services, rendered in taking care of one Laura Hackett, and Richard Clifford. Plea — general issue, and plea in offset for money had and received. — Mutual issues to the court.

, , This was an action of trespass, to recover the the value of a wooden-boot, which the plaintiffs had hanging at the door of their shop, as a sign, with the name of T. P. Wallace on a piece of tin tacked on the said boot. Plea, the general issue, and closed to the court, with special notice, that he should show an attach-mentof said property/by him, the defendant, as deputy sheriff,at the suit of a creditor of the plaintiffs.

<p>A plaintiff, who sues as a corporation, is bound to shew his corporate character, if required.</p> <p>An act of the legislature, reciting a formor^statute, is evidence of the former statute.</p> <p>A grant from the legislature, either to individuals or to a foreign corporation, gives them a capacity to take and hold the thing granted.</p> <p>A tenant is estopped from denying the title of his landlord, in an action of ejectment brought by the landlord.</p> <p>Such estoppel may be given in evidence on trial of the general issue, plead by the tenant.</p>

This was an action on a jail bond, executed in 1808,- to the sheriff of the city of Vergennes, for Jabez Fitch, for the liberties of the city prison on an execution in favor of the plaintiff, and assigned to the plaintiff. The defendant pleaded non est factum, as to the bond and assignment, and several pleas in bar, among which were pleas of payment and of an act of suspension in favor of said Fitch ; On all which issue was joined except the last which was demurred to.

<p>This was a prosecution for bastardy, under the statute of this state, passed November 9th, 1822.</p> <p>In the county court, non-suit was entered by the plaintiff. Respondent claimed his costs. The counsel for the plaintiff contended that costs were not taxable for respondent. Judgment that respondent recover bis costs.</p> <p>To this decision of the court the plaintiff excepted.</p>

<p>This was an action of debt on an award made by Daniel Smith and George W. Byram, in pursuance of a submission made as hereinafter stated.</p> <p>Plea — the general issue, and trial by jury.</p> <p>The plaintiff offered the records of the town of Bloomfield of the proceedings of the town at their annual March meeting, in the year 1833, by which it appeared that at the adjourned term of said meeting, Joseph Stevens was appointed agent of the town for the purpose of compromising the difficulties then existing between the town and this plaintiff in relation to a road laid by the selectmen of the town across plaintiff’s land.</p> <p>The defendants objected to the admission of the testimony, for the reason, that in the warning of said meeting,"no notice was given of the subject matter of this vote, and that the vote gave no authority to the agent to compromise this difficulty by arbitration , which objections were overruled, and the testimony admitted.</p> <p>The plaintiff having proved a submission of their difficulties (which were a claim of damages on the part of plaintifi for the'said _ road being laid as aforesaid across his land,) by said agent and the plaintiff, to the persons above named, and their award in the premises duly made and published, for the sum of $55 50, and that after the award, both the said agent and plaintiff expressed themselves satisfied with the award, and that the selectmen proceeded' to assess a tax for the amount of the award upon the inhabitants of the town, in pursuance of a vote of said town, directing $30 and as much more as their agent should- agree to pay plaintiff in the' premises to be so-assessed. — The plaintiff here rested his case.</p> <p>This vote was at the same time with the vote appointing an agent ‘ for this purpose,</p> <p>" 1. The defendant offered to prove that the land over which the road was laid belonged to the defendant by prescription.</p> <p>2.That the selectmen had no authority to lay out a road over the land of the plaintiff; and,</p> <p>3.- That the plaintiff had kept the road-fenced up since the award.</p> <p>The testimony was objected to by the plaintiff, and rejected by the court.</p> <p>The jury were instructed, that if they credited all the'testimony given oh the part of the plaintiff, he would be entitled to recover. Verdict for the plaintiff.</p> <p>To the foregoing decisions of the court, the defendant- excepted.</p> <p>The points to be decided in this case are,</p> <p>1. Has a town power to appoint an agent at an adjourned term of its March meeting, for the purpose of seitling difficulties between such town and an individual, without any notice for that purpose in the warning of said meeting?</p> <p>2. Has an agent, appointed for the purpose of “compromising” difficulties subsisting between a town and a third person, power to submit such difficulties to the arbitration of individuals mutually chosen by him and such third person ?</p> <p>3. Did the evidence offered by the plaintiff for that purpose show a sufficient recognizance of the acts of the agent by the town, to bind them ?</p> <p>4. Did the court below err in rejecting the testimony (the award being made to settle a difficulty in relation to laying out a road over plaintiff’s land) offered by the defendant? — 1st, That the land over which the road was laid belonged to the defendant by prescription. — 2d, That the selectmen had no authority to lay out a road over the land of plaintiff — and, 3d, That the plaintiff had kept the road fenced up since the award.</p> <p>First — Towns, like'all other incorporations, are confined strictly to the exercise of the powers granted ibem by the legislature. (1 Swift’s Dig. 69.) The “act regulating town meetings, and the choice of town officers,” (Stat. 408-9,) authorizes the several towns in this state to make choice of certain officers at their annual March meeting, and to transact such other business as is therein named. Can they travel beyond their charter, and do business without authority ?</p> <p>The act is a public one, which every body is bound to notice; and the powers conferred by it, are supposed to be well known. It gives no authority to appoint an agent; and the freemen of a town might well say they were taken by surprise, if at a March meeting, an agent for any purpose was appointed, without notice in the warning. They cannot know that such business is to be transacted ; and, believing that the meeting will confine itself to the exercise of the power granted in the 3d and 14th sections of the act, they may remain at home; while, had they known that other business was to be transacted, they would have been present at the meeting.— Such a doctrine is absurd. Ten men might bind the whole town, composed of two hundred voters, without their knowledge, and contrary to their will. With, or without notice, an annval March meeting have no power to do any business other than what is named in the 3d and 14th sections, unless they first comply with the 15th and 16th sections of the act regulating town meetings.</p> <p>Second — Stevens was a special agent. A special agent, to bind his principal, must pursue his authority strictly (Paley on Agency, 164 — Cox Dig. U. S. Rep. 48) in form as well as substance. — 5 Mass. R. 37, -vs. Hovey.S T. R. 757 — 5 John. R. 58, Nixon vs.-et al. — 1 Sw. Dig. 327.</p> <p>The agent had no authority to arbitrate. The words of his appointment are, “ to compromise.” He could not delegate his authority and authorize others to settle the difficulty. — Hovenden on Frauds, 1 vol. 177 — 1 Sw. Dig. 332.</p> <p>One partner cannot submit a partnership difficulty with another so as to bind the firm. — Kyd on Awards, 42.</p> <p>An attorney cannot submit any matter to arbitration for his client without express authority for that purpose. — 4 Hayw. (Tennessee) Rep. 65, Haynes vs. Wright — 2 McCord’s Chan. Rep. 406, Smith vs. Boxzard, cited in Hovenden on Frauds, 262, 2d vol. — . 1 Sw. Dig. 466 — 1 Ld. Ray. 246, Bacon vs. Duberry, misreci-ted in 1 Swift, 466.</p> <p>Third — The selectmen could not recognize the acts of the agent so as to bind the town. They were mere agents themselves.</p> <p>JTuiirth — The court below did err in rejecting the testimony offered by the defendant; and,</p> <p>1. The submission was a claim of damages for laying out a road over the plaintiff’s land. If the land belonged to the defendant, the arbitrators passed upon a subject not submitted, and the award is void. The defendant offered to show that such was the fact.</p> <p>2. The statute (p. 427) authorizes the selectmen to lay out roads upon petition of three freeholders, ¡kc. If the selectmen had not authority, they were trespassers Now' what was submitted to the arbitrators? A claim for damages for the tortious acts of the selectmen of Bloomfield! And the award was that the town should pay $55 50, but no release or discharge was awarded.— The plaintiff may sue the selectmen at any time, and recover of them for the trespass. If the selectmen were trespassers, the town had nothing to submit. The plaintiff could still claim his damages for the road, when it was certified tobe open, according to the statute. — 1 Saund. R. 327, Veale vs. Warner.</p> <p>3. The defendant should have been permitted to show that the plaintiff had kept the road fenced up since the award. What was the consideration for the $55 50 awarded ? Was it that the town should enjoy the right of using the road, undisturbed by the plaintiff? If so, then the plaintiff was bound to comply with the award ; and in fencing up the road, he has deprived himself of any right to recover. On any other ground, the award is void for want of mutuality. — 1 Saund. R. Beale vs. Warner 327.</p> <p>Nothing is awarded to the defendant as a consideration for the $55 50 given to the plaintiff, and nothing but the right to use the road can be implied as a consideration: so that if the plaintiff interrupts the defendant in the enjoyment of that privilege,^the only possible consideration that can be imagined has failed. No release was awarded, no right of way, — no deed; and, in short, no consideration ever passed, upon which to base the award.</p> <p>The plaintiff still has his land — keeps the road fenced up — has his right of action against the selectmen ; and if the town attempts, without further authority, to open the road, he may sue them as trespassers; or, if the selectmen obtain authority, andk proceed legally to open the road, he still has a claim for his damages.</p> <p> The award is void. </p> <p>1. The first question in this case is, whether it was necessary in order to the appointment of Mr. Stevens as agent, that the warning of the March meeting should contain the subject matter of the vote.</p> <p>The appointment of Mr. Stevens was at a meeting in April, .adjourned frqm the annual March meeting.</p> <p>It is provided by statute, (p. 411, sec. 8,) that all matters and things required to be done at the annual meeting in the month of March, may be done at any adjournment of said meeting in the month of April succeeding.</p> <p>The statute does not require that the subject matter of anything .to be transacted shall be specified in the warning of the annual meeting, — (p. 408, sec. 1.) This would be a very inconvenient practice, as it would be impossible for the selectmen to foreknow all of the many affairs necessary to be acted on by the town at that meeting. Every inhabitant knows that various affairs of interest to the town will be transacted at that meeting; and if he chooses, he can be present. But when a special meeting is warned, it is provided by the statute that the subject matter to.be transacted shall be inserted in the warning (p. 414, sec. 15 &s 16); and unless the subject matter is so specified, the business transacted at the meeting is not valid. It is evident from the provisions in the 15th and 16th sections, examined in connexion with the 1st section of the same act, that the legislature did not intend that the subject matter ,to be transacted, should be inserted in the warning of the annnal March meeting of the town.</p> <p>3. The second objection is, that the vote passed, gave no authority to the agent to compromise this difficulty by arbitration.— The vote was, “that Joseph Stevens be an agent for the town, to compromise with Orlando Scboff about the road going through his land.”</p> <p>This vote constituted Mr. Stevens an agent, with general and in,definite powers, to compromise the difficulty. It is a rule of law, that powers shall be construed liberally and beneficially. Mr. Stevens was made an agent for the purpose of having the business settled, and if he could not settle with the plaintiff by agreeing upon the damages, the appointment would be a nullity, unless he could arbitrate the difficulty. It was for the interest ,of the town :to have the matter settled without litigation; and to compromise disputes by arbitration, is a method recognized and highly favored by law.</p> <p>After the award was brought in, the agent expressed himself satisfied with it, which may be equivalent to an agreement by the agent to pay that sum to settle the matter in dispute, without the aid of arbitrators, which would be clearly within bis authority.</p> <p>The vote of the town, raising §30, and as much more as necessary to pay the plaintiff, shows that there was a debt of §30 or more due the plaintiff from the town, and that the verdict in this case is just.</p> <p>An agent of a town, appointed to prosecute a suit, has authority to refer the suit pending. — Inhabitants of BucklancL vs. Inhabitants of Coventry, 14 Mass. R. 396. — Pailey on Agency, 425, referred to. — 1 Caine’s R. 324, Lyle vs. Closon.</p> <p>3. The defendants say that this verdict .should be set aside because the court rejected evidence offered to prove that the land over which the road was laid, belonged-to the town ; and also evidence to show, that the selectmen had no authority to lay out a road over the land of the plaintiff.</p> <p>This proposition was to go into the merits of the question .decided by the arbitrators, and of course could not be admitted.</p> <p>It is evident that there was a matter in dispute, which was sufficient, though the ownership of the land might be doubtful. And it was of no consequence how illegally the road was laid, inasmuch as it was laid, and there arose a difficulty about the damages to be paid to the plaintiff, sufficient to become the subject matter of arbitration. The award must be conclusive, and cannot be overhauled by showing that the arbitrators misjudged,.</p> <p>4. If the plaintiff fenced up or obstructed the highway, it was an offence for which he was liable to be proceeded against under the statute (see p. 433, see. 16) ; but it can be no defence to this action that he so obstructed the road.</p> <p>The highway act, (p. 427, sec. 1,) provides that the selectmen may lay out highways, so that no damage-be done to any person through whose lands such road shall be laid, without due recompense from such town, as the selectmen and parties interested shall agree. And if they do not agree, the selectmen are directed to assess and tender the damages before they open the road. From this statute, it appears that the damage is complete, and should be paid before the road is opened. In this case,- it appears that the road was laid, and the damage to be paid was fixed by this arbitration ; but it does not appear that the road was ever legally opened, and therefore nothing appears why the plaintiff might not legally obstruct the road.</p>

<p>. In a declaration for slanderous words, the words constituting the slanderous charge must be set forth; and an omission to state them is not cured by •verdict.</p> <p>If one of several counts in a declaration is fatally defective, and a general verdict on all the counts is returned and entered in favor of the plaintiff, judgment will be arrested.</p>

<p>In an action on the case against a sheriff for neglecting to serve and return an execution, the rule of damages is the amount of the execution, and the de. fendant cannot be permitted to give in evidence the pecuniary circumstances of the debtor to reduce the damages. '</p>

<p>In this case several objections of a formal nature were presented, and passed upon by the court. But as the 'points decided can very rarely have any application to other proceedings, they are not deemed of sufficient importance to be reported. A trial was then had before .the court upon the merits ; and after argument,</p>

This was an action of covenant. The declaration counted on the covenant of seisin, and the covenant against incumbrances, contained in the defendant’s deed to the plaintiff of a tract of land in Concord. Plea, that the defendant was well seized according to the terms of his covenent, and that the premises were free from incumbrance. The plea was traversed and issue joined.

This was an action of assumpsit, in three counts, — the first of which was as follows : “•To answer to John Harding, in a plea of the case, for that heretofore, to wit, on the 27th day of June, 1833, in consideration that the plaintiff had before that time, on the 4th day of May, 1833, made, executed and delivered to one Luther B. Hunt, jointly and severally with one Silas Lamb and Philander Reed, a certain promissory note, dated the day and year last aforesaid, for the sum…

This was an action of trespass for false imprisonment alleged against the defendants. In the county court, defendants pleaded not guilty, with notice.