Volume 9 — Vermont Reports

Trespass for assault and battery, and false Imprisonment. Held: first, that a Justice of the Peaee within the District of Columbia, was not liable to do military duty; secondly, that, a Court Martial had. no jurisdiction over him; and, thirdly, that the Court and the officer who arrested him, were all trespassers.

This was an action of assumpsit upon a'note of hand, dated November 10th,. 1834, signed by said Sumner, as principal, and said Loveland, as surety, payable to the town Treasurer of Hinesburgh. The defendants pleaded the general issue and two pleas in bar, one of duress ®£ imprisonment, and the other, that the defendants were induced to give the note to stifle a criminal prosecution.

'This wa's an action of ejectment, for land in Burlington. On trial, it appeared that in 1833, the defendant, as administrator of the estate of John Collard, recovered this land inejectment. The plaintiff, in 1835, as the creditor of said Collard, deceased, recovered a judgment against the defendant, as administrator, and took out execution against the goods, chattels and lands of said deceased, and caused the same to be levied on the land in question.

This was an action of account, wherein the plaintiff declares in two counts. First, Claiming an account of the defendant of certain lands, which he occupied during the life time of the intestate, as tenant in common w'ith him ; ant?,. Second, For having occupied the same lands since the decease of Collard.

This was an action of ejectment for lands, tried on the general issue, before a jury. The land was described as lot No. 4, in the township of Colchester. The plaintiff claimed to recover fifty two and a half acres off of the east end of the lot.

The bill in this case states, that on the 29th day of June, 1814, William C. Harrington, of Burlington, made and published his last will and testament, by which be bequeathed to the “ children of Pirineas Lyman,” one thousand dollars, and appointed Lyman King, Qzias Buell, Pirineas Lyman, and Isaac R. Harrington, the executors of his will; that the testator deceased, and the executors above named, on the 18th July, 1814, duly proved the will and jointly assumed the trust…

This was an action on the case, in which the plaintiff declared, that whereas at Richmond, on the 22d. Aug. 1822, a conversation was had and moved between plaintiff and defendant, of and concerning the purchase of the exclusive right of making, constructing, using, selling and conveying, Ballou’s patent improrved threshing and winnowing machine, in the counties of Chittenden, Franklin, and Grand Isle, which said right was, then and there owned by one Moses Dennett, of the…

Audita Querela, to set aside a judgment of a justice of the peace. The recognizance was in the form prescribed by the 11th section of the judiciary act, Revised Stat. 61. The defendant pleaded in abatement, that there was no sufficient security to the defendant, by way of recognizance, for costs. Plea overruled by the County Court.

This was an action on a receipt-, executed to plaintiff, in his official character of sheriff’of Chittenden County,/or goods and merchandise, taken on a writ of attachment, in favor of Emerson & Harvey, against A. W. Butler and H. L. Peaslee, two of the defendants. The receipt was also signed by L. G. Butler, who was joined in the suit, and pleaded bis infancy, specially. The four first defendants pleaded the general issue, with notice.

This was a prosecution for bastardy. The complaint was as follows: “ To Joel Barber, jun., one of the justices of the peace, with- “ in and for the county of Franklin, comes Mary Sisco, now “wife of Erin Sisco of Fairfield, in said county, late Mary “Bickford, and, on oath, and in writing, complains, informs,and “ gives said justice to understand, that on or about the first day “of September, 1834, at Fairfield aforesaid, one Lathrop Har- “ mon, then of Sheldon, in the…

This was an action on book, which, after judgment to account, was referred to an auditor, by the County Court. By the auditor’s report, it appeared that the defendant contracted with one Lamb, to erect a certain building, at a certain price. After-wards, Lamb engaged the plaintiff, as his partner, of which the defendant had no notice. Lamb and the plaintiff worked on the building, for a time, when Lamb was taken sick, and the work ceased.

This was ejectment for lands in Highgate. The plaintiff’s title was derived by virtue of the levy of .an execution in his favor against Abijah Benson, on the interest of said Abijah, in the land in controversy, as tenant in common with the defendant.

The bill, in this case, alleges in substance, that Jesse Williams, in his life time, was indebted to the orator in a considerable sum, for which he executed his promissory note, and procured his son, Lyman Williams, to sign with him, as surety. Jesse Williams deceased, his estate was represented insolvent, commissioners were appointed, and the orator,residing in the Province of Lower Canada, had no notice, in fact, of the proceedings, and did not present his claim.

This was an action upon a promissory note for a sum exceeding twenty dollars, but so indorsed, as to leave less than ten dollars due. The ad damnum in the plaintiff’s writ was ten dollars, The declaration stated the indorsements on the note, and that less than ten dollars remained due. The justice of the peace, before whom the suit was brought, rendered judgment for the plaintiff. There was no plea in offset, in the justice’s court.

This was a trustee action. Judgment was rendered by the county court that Smith was trustee of Hoyt. The facts in the case sufficiently appear in the opinion of the court.

This was an action of debt on a bond, conditioned for the payment, by the defendant to the plaintiff, of the sum of six bunded dollars.

This was an action commenced to Rutland' County Court, The writ of attachment was signed by Jonas Clark, justice ol the peace for the county of Rutland. At the first term, the defendant filed a plea in abatement, alleging that said Clark was the real owner of the debt declared on, and so, interested in the event of the suit, at the time of signing said writ. To this there was a dermurrer. The County Court overruled said plea, and awarded a respondeas ouster.

This was an action against the town of Benson, for the neglect of its constable, in his official duty. The declaration alleged, that the plaintiff recovered a judgment, before a justice, on the 13th day of June, 1834, and on the 14th took out execution thereon, of that date, and delivered it to the constable, to levy, collect, and return, but that he wholly neglected either to levy, collect, or return the same, and it remains wholly unpaid to the plaintiff.

•This was an action of assumpsit for goods sold and delivered,, and money had and received,in which the plaintiff sought tore-cover the amount of certain promissory notes, given by him to the defendant, and subsequently paid, the consideration of which notes was the conveyance, by deed, from defendant to plaintiff, of the exclusive right to make, use and sell, within certain parts of the states of Vermont and New York,” an improvement in the machine for grinding apples for…

<p>A person in possession of land, by conveying his interest to another, be- ’ comes tenant to that other, so long as he retains possession, and the grantee, as landlord, is liable to ejectment by a third person.</p>

This was an action of trover. On the trial in the County Court,it appeared in evidence, that, before the commencement of this suit, Isaac Wheedon, the justice of the péaee, before whom this action was brought, and by whom it was tried, made a complaint, as grand juror for the town of Pittsford, against the defendant, for stealing the articles in question.

• This action was commencedbefore a justice of the peace,, and,1 went, by appeal, to the county court. The plaintiff declared against the defendant, for breaking and entering plaintiffs close’ and barn, and taking away his horse, of the value of ninety-nine-dollars, and a rope halter, of the value of one dollar, and concluded to the damage of the- plaintiff, one hundred dollars.

This was an action of assumpsit. One count was for use and occupation of certain premises, being, principally, part of a woolen factory, and certain tools, machines and privileges. This action was, by consent of the parties, submitted by rule of court to referees, who made report to the County court in substance, as follows ; that the plaintiff’s claim before them consisted of but two items, to wit, fifteen dollars and fifty cents paid for defendant for insurance.

• This was an action of covenant broken, in which the plaintiff declared upon a lease executed by him to defendant, on the 8th day of January 1814, of certain premises in Manchester, at an annual rent of twenty-five dollars, to be paid by defendant to one James Borland. The breach alleged was the non-payment of the several- rents,_from the execution of the lease to the date of plaintiff’s writ.

This was an audita querela, on the following complaint. ££ John P. Warren is attached to answer unto the grievous complaint of Samuel Allen, jr. who complains and says, that, heretofore, on the 4th day of March, 1836, the said John P. Warren, by the consideration ofPearley Fairbank, justice of the peace for Windham county, recovered judgment, in an action on judgment, demanding sixty dollars damages, against the complainant, for the sum of fifty dollars and ten cents,…

<p>This was an appeal from a decree of the Probate Court, approving the will of John Blandin, deceased.</p>

On the 20th December, 1834, the orator’s intestate convoyed his farm, in Vernon, to the defendant, for the consideration, as stated in the deed, of $1700.

This was an action of trover for the conversion of a note, which, the plaintiff alleged that he executed to the defendant, and subsequently paid, and left in the hands of the defendant, who refused to deliver it to the plaintiff, on request.

This was an action oiTnote, dated, March 17, 1834, for three hundred dollars, payable in one year, to William Lewis or bearer, and indorsed to plaintiff. Plea — non assumpsit, with notice of special matter.

<p>A testator made a bequest to a trustee, to be applied to the benefit of tlie cestui qua trust, as should be found necessary, in the judgment and discretion of the judge of probate for the district of H. — Held, that the trustee was accountable for the property, received as trustee, in a court of Chancery, and not in the court of probate; that, in the exercise of the discretion and judgment, confided to him, the judge of probate acted personally, and not officially, and no appeal lay, to the Supreme Court, from his proceedings and doings.</p>

This case came before this court on exceptions to the decision of the county court, against the sufficiency of the first count in plaintiff’s declaration, on demurrer and joinder.

This was an appeal from the probate court, on the petition of the heirs of Jacob Smith, late of Royalton deceased, against the administrator, praying that certain errors in a decree of the probate court, on a partial accounting of the administrator and his former colleague, in the month of January, 1820, should be corrected.

The bill, in this case, sets forth, that Mower, one of the orators, on the 3d day of June, 1819, was the owner of an oil mill, on the South branch of Queeche river, in Woodstock, and, as appurtenant thereto, pf a right of flowing a portion of the easterly part of a farm, called the Briggs farm, through which said branch ran, and that the defendant bad knowledge of such ownership ; that, on that day, Mower and defendant agreed to purchase the Briggs farm, upon an…

This was an action of assumpsit, in three counts, against the defendants, as joint partners with one Levi Blood, under the firm of Levi Blood Sr Co. The first count was upon a note, alleged to have been signed by said Levi Blood, “ for the interest, profit, and benefit of the said firm of Levi Blood Si Co.” The second and third counts were for a horse sold by plaintiff to defendants. The defendants pleaded non assumpsit. Issue joined to the court.

This was a trustee' process. The County court adjudged Preston to be trustee of Langley, to which Preston excepted. The facts of the case sufficiently appear in the opinion of the-court. That the transfer of the notes in question from Langley to Moore was bona fider and for a good consideration, has not heretofore, and it is presumed, will not now be questioned.

This was an appeal from an order of removal, wbeyehy Nathan Watson, a pauper, was ordered to be removed from Fairlee to Corinth; from which order Corinth appealed… Held: that when service of a warning is made, by leaving a copy with some person, other than the pauper, at the usual abode of such pauper, it is essential that the officer certify in his return, that the person, with whom he left the copy,, was then resident therein. In the case between Barnet v. Concord, 4 Vt.

This was an action on the act “ directing the proceedings against the trustees of absconding or concealed debtors.” The defendant filed a plea in abatement, alleging that the plaintiff, at the time of suing out this writ, also sued out another writ, on the same cause of action, against said George Petrie, (being a writ of attachment,) and that the same was duly served and entered with this writ, in this court, and was still pending. To this there was a demurrer.

This was an action of assumpsit upon a promissary note, submitted to the county court upon the following case stated : “ In this case, it is agreed by the parties, that the defendant “executed to the plaintiff the note declared on, at the time it “ bears date, and that, at the same time, upon a conference be- “ tween them, in relation to their concerns, both parties then be- “ ing in Lower Canada, this, with two smaller notes, then due “ to plaintiff from defendant, was…

<p>A Collector’s advertisements of particular land'taxes- must be signed- by him, as collector.</p>

This was an action of assumpsit on a note, made by the defendant, payable to Samuel Train & Co. or order, and by them indorsed to the plaintiff. _ The defendant pleaded in offset a claim for damages, against the said Train & Co., upon a warranty of a portion of the hides, the sale of which formed a part of the consideration of the note in suit.

This was an action of assumpsit upon a subscription paper, for the purpose of building a new State-house in the town of Montpelier. The general issue was pleaded and joined to the court. The plaintiff, to support the issue on= his- part, introduced testimony to show that the State-house, heretofore occupied in the-, town of Montpelier, was in a dilapidated condition.

The plaintiffs were creditors of the Greenoughs, and, as such, brought this suit. On the trial in the County Court, it appeared that Hawley had made his note to the Greenoughs, and that, before the commencement of this suit, they had, for a valuable consideration, assigned it to Peck, and with a full knowledge on the part of the latter, that they intended to abscond and leave their debts unpaid, and that they made the assignment to obtain money, for that purpose.

This was a bill in Chancery stating, in substance, that the orators, as administrators of Eleazer Scofield, held a certain mortgage against one Mead, which was given to secure certain notes therein named ; that afterwards, and in pursuance of a decree in Chancery, they assigned to Jos.

This was an action of trover for one pair of horses. On the trial, the plaintiff proved that on the 10th day of Nov. 1835, a writ was sued out'by McLean & Wallace against Sidney Patterson, signed by a justice of the peace, directed to the sheriff of Washington county, his deputy, &c. This writ the plaintiff was, by said justice, duly authorized to serve, by an indorsement thereon, agreeably to the statute.

This was an action of trover for a horse. The facts in the case were, in short, that the defendant procured one Blodget to come from New-Hampshire, into the town of Barnet, in this State, after having procured a warrant to arrest the plaintiff in that State, on a charge of forgery, and here procured the warrant of two justices of the peace, for the arrest and surrender of plaintiff, to answer to the charge of forgery in the State of New-Hampshire.

This was an action upon the statute, relating to absconding or concealed debtors, &c. The goods came to the hands of the alleged trustee, as administratrix of one Sole Cushman, who was the brother of the wife of Stephen Hadley, the principal debtor. Among the goods were certain articles of household furniture and other property, exempted from attachment and levy by statute.

Tins was an action of ejectment Tor about seven eighths of an acre of land in the village of Danville. Plea, severally, not guilty, and issue to the jury. On trial ¡the plaintiffs introduced a deed from -Josiah Bellows to Caleb Wheaton, dated, 10th May., 1828, containing the land in question. He also introduced, a'le-vy of execution upon the same land in his favor, .against -John -Stearns., one of the defendants, dated, August 5th, 1834.

This was an action of book account, sued before a j ustice of the peace, and brought into the county court by appeal, where judgment to account was rendered by consent of parties, and the case was referred to an auditor, who reported a balance due the plaintiff, and also stated certain facts, as the foundation of the report, upon which the defendants moved to dismiss the action, for want of original jurisdiction in the court where the suit was brought.

This was a scire facias against defendant, as- bail, on mesne process, of Aaron Bellamy. The defendant, after oyer of the original execution against Bellamy, demurred to plaintiff’s declaration. Joinder in demurrer. The execution and previous proceedings in the original suit were regular on the face of them.

This was an action of assumpsit for money paid, laid out and expended. Plea, the general issue. The plaintiff proved that he, together with one other, signed a promissory note for $200, payable to the Bank of Montpelier, as sureties for George W. Paige, who also signed the note. Paige gave the note to defendant, he being one of the directors of the Bank, with a request to him to get it discounted at the Bank, but with no request to sign it, as surety.

This was a suit brought before a justice of the pelee, and came into this court by appeal.

This was an action of trespass on the freehold. Plea, the general issue and trial by jury. The principal question was one of boundary. The lot of land in controversy was called lot No. four, in the second division of lots in Canaan, in said county. It was admitted that plaintiffhad title to the southerly half of said lot, and those, under whom defendants claimed, had title to the northerly half. The whole lot was in a triangular form, nearly equilateral.

<p>Where IV. sold personal property to J, and took notes, anda mortgage, to secure the payment of the sums, but the property was immediately put into the possession of J., who continued in the use and possession thereof: Held, that the mortgage was void as against the creditors of J. '</p> <p>Where such mortgage was executed in New Hampshire, the mortgago. residing in this State : Held, that the law of New Hampshire did nc. make valid such mortgage in this State; as the mortgage was not, an could not be recorded in this State, in pursuance of the laws of Ne\ Hampshire.</p>

<p>The lieu, created by attachment of personal property, is preserved by giving the execution, within thirty days, to the officer attaching, j</p> <p>When the attachment is made by one officer, and the execution is deliver- ■ ed to another, with directions to levy on the property attached, it is the duty of the officer, who has the execution, to demand the property of the one making the attachment.</p> <p>An attachment, made by the sheriff’s deputy, is the same as if made by him, and the lien is preserved by delivering the execution to the sheriff.</p>

This was an action of assumpsit on note, dated January 22d, 1828. Plea general issue, and trial by jury.

<p>In all actions ex contractu, tlie plaintiff, under the statute of 1835, may recover against one or more defendants, and the other defendants recover their costs, whether the suit be upon a contract in writing or not.</p> <p>If a promissory note be altered in a material point, by consent of one signer, without the consent of the other signer, it is the note of the first, but not of the other, and, if declared upon as the joint note of both, the plaintiff may recover against one, and the other recover his costs.</p> <p>Difference, stated as to the materiality of time, in declaring upon written contracts, between “ the date” and the time of execution.</p>

<p>If one sell the betterments on a lot of land to another, and it is agreed by both parties, that the title is in a third pensó», and the vendee is to run the hazard of procuring that title, he may take a deed of such third person at any time, and hold the land against the vendor of the betterments, even although he have not paid the vendor the price of such betterments.</p> <p>If the vendor, in such case, is, employed to negocíate with the owner of the land for procuring the title, if he is bound to convey immediately to the vendee, his power is revocable and the vendee may take a conveyance .of the owner of the land, without the vendor’s consent, and hold the land against him, even before he has paid the price of the betterments.</p> <p>In the case of vendor and vendee of real estate, no. right of recovery in ejectment for the lands exists in favor of the former against the latter, unless the vendee fails to perform the contract on his part, and, especially, where the vendor is the occasion of the contract not being carried into full effect, or where he has put it out of his power to perform the stipulations on his part.</p>

<p>An entry upon land, under a deed, claiming title to tlie same, and cutting and selling timber from time to time, and exercising acts of ownership, is a sufficient possession to maintain an action of trespass quare clausum fregit against a stranger-</p> <p>An imperfect division, evidenced by a plan, or by parol', acquiesced in by the proprietors, is good against a stranger.</p> <p>A license to enter must be pleaded, or, if given in evidence under the general issue with notice, the plaintiff may recover for all the trespass not justified by the license.</p>

<p>, , . A receipt, which contains no contract, although executed at the same time, and in reference to the same subject matter of the contract, need not he produced in evidence of the contract.</p> <p>And if such writing or receipt contain the contract, and is notin the power of the party, it need not bo produced.</p> <p>If an attorney receive a demand for collection, and the debtor leave demands with the same attorney for collection, the avails tobe applied on the first demand when realized, this creates no lien on the demands left by the second creditor, in favor of the first creditor or of the attorney, for the security of the first debt.</p> <p>In such case, the attorney, in making the collection for the second creditor, acts solely as his attorney, and such creditor has the right to control such demands, without consulting the attorney.</p> <p>In order to create a lien for the security of the first debt, a contract to that effect is necessary, which should be distinctly notified to the officers and debtors, in the secondary collections, o'r they will be allowed to take the directions, ahd make payment to the nominal creditor in the execution.'</p> <p>How the officer may make the execution his own, by acts, showing his intention, underslandingly made, ti> adopt them as such.</p>

This was an action of book account, sued before a justice of the peace, and carried, by appeal, to the county court, and referred to auditors. By the report of the auditors, it appeared that the plaintiffs’ account, as presented before them, contained one item of interest of $$J0, and that the sum of t-he debit side of such account was $$100,58, upon which the defendant contended, that the county court had not appellate jurisdiction of the cause.

<p>The party in interest in a contract, resting in parol, may sue upon it.</p> <p>In contracts, made by agents, without disclosing the principal, the suit, to enforce them, may bo in the name of the principal or agent,</p> <p>A dormant partner may join in a suit, or not, at the election of the plaintiffs. In such-cases, when the suit was not brought in the natpe of the party contracting ostensibly, the defendant will be entitled to make any defence, which he could have made, had the suit been in the name of the person* with whom the contract was made.</p>

<p>This was an action on the case for an injury sustained by Mrs. Hunt, one of the plaintiffs, through the insuffjeieqey of a highway in said town. On the trial, the defendants objected to a • recovery by the plaintiffs, on the ground, that the injury, complained of, occurred, if at all, upon a highway in the county of Bennington ; — that the action was local, and should have been brought and prosecuted in the county of Bennington; but the court overruled the objection, and decided that the action might be. brought and sustained in the county of Rutland.</p> <p>The plaintiffs offered testimony, tending to shew, that Mrs. Hunt, in company with sonje friends, at the time mentioned in the declaration, was travelling in a wagoq, drawn by two horses and containing six persons and their baggage, on her way from Connecticut to West Haven., in Vermont; — -.that the road, on which the injury complained of occurred, wqs, at the time and place where and when the injury was. sustained, about eleven feet wide, that it rqn along at the base of a high, rocky and precipitous mountain qn oqe side, and having a rapid stream, called Hoosack river, which was. conqidepably swollen by rains at ■ the time, on the other side, that {he declivity from the edge of the road to the water was quite steep, and of the distance of eight or ten feet, and, to the bed of the river, about fourteen feet;— that the road at that place had been long known as the dug-way, and that the only muniment on the river-side of the road was a small rotten poplar pole, of about four inches in diameter, with one end resting on the ground and the other a little elevated that, under this pole, 'and imbedded in the earth, was another P°ie rather longer than the former, but which presented no obstacle to a wagon ; running off the bank; — that as the driver was proceeding carefully along the road at this place, the nut, which had been screwed on the inner end of the bolt, which passed through-and connected the left arm of the tongue to the forward axletree, came off, — that the forward wheels thereupon instantly turned nearly at right angles with the road toward the river, struck and broke the poplar pole aforesaid, and the wagon, with all its contents, was instantly precipitated down the bank into the river; that Mrs. Hunt, thereby sustained a most serious and permanent injury ; — that the road jp question was very much travelled — that the wagon was obtained of a Mr. Cooley of Wiiliamstown, was carefully examined and in good and safe condition, when it left Cooley’s house, and that, after leaving Cooley’s house, they proceeded directly on their way, until they come to the dug-way aforesaid, which is about two miles north of said Cooley’s house.</p> <p>The defendants offered testimony, tending to shew, that the road in question was about sixteen feet wide, smooth and well wrought, that the surface of the road was a liffle declining from the e dge of the river-bank towards the mountain ; — that the wagon was hired of Cooley by Andrus, as agent of plaintiffs, and that it was unsuitable and insufficient to carry and safely sustain the load, with which it was laden at the time the injury occurred; — ■ that the nut and bolt were insufficient, and that the nut was insufficiently and improperly screwed to said bolt, at the time the wagon was hired of Cooley.</p> <p>The counsel for the defendants requested the court to charge the jury, that, ii they found that the accident would not have happened, and the injury, complained of, would not have been sustained, if the nut in question had not come off, they must find for the defendants. They further requested the court to charge the jury, that, if they found that the accident happend, aqd the injury occurred from the nut and bolt being insufficient, in themselves, or from the nut being insufficiently screwed to thd bolt, they must find for the defendants ; and that it was immaterial whether the insufficiency of the nut and bolt was or was not known to the plaintiffs’ agent, when he hired the wagon, and that, if the nut was insufficiently screwed on, it was immaterial whether this arose from the negligence of the plaintiffs’ agent, or of the driver, or of Cooley, the owner of the wagon.</p> <p>But the court refused to charge the jury as requested, and did charge that, if they found fpom the testimony, that that part of the road in question, upon which the accident happened and the injury occurred, was insufficient, and in want of repair, by reason of there not being a proper and necessary railing or muniment on the river-side of the road, and that the injury, complained of, occurred in consequnence of such insufficiency and want of repair, and that the plaintiffs’ agent, in hiring the wagon, used ordinary care and prudence in examining and ascertaining its soundness and sufficiency, and that plaintiffs’ agent and driver, at the time the nut came off, was driving with ordinary care, and, after the nut came off, used ordinary care and prudenee ■ in arresting the consequences of the accident, the plaintiffs were entitled to recover. The court, also, charged the jury, that, if they found that the nut came off on account of the insufficiency of the nut and bolt, qp by reason of the nut being improperly screwed on, provided that was done by the negligence or want of care in Cooley, of whom the wagon was hired, or of his servants, and not by the neglecf or want of ordinary care in plaintiffs’ agent or driver, the fact, s.q fopnd by them, constituted no objection to the plaintiffs’ recovery. To all which the defendants’ excepted, and the cqsp capnp here for revision of this court.</p> <p>It is a material averment in ¡the declaration, that the place, where this injury was sustained, was a publjc highway. This averment was traversed by the general issue, and, on trial, it became necessary lor the plaintiffs to proy.e this such an highway, as the town were under qbligation to keep in repair. The existence of this highway wqs then, pot collaterally, but directly in issue, for, if this was not a highway, thpre could be no liability on the town.</p> <p>I. It is claimed on the part of the defendants, that this action, at common law, and by statute, is local, and can be sustained only in the county where the injury was sustained.</p> <p>1. At common law, all actions for the disturbance of a right of way, either public or private, are local, and must be brought in the county where the injury arose. 1 Chit. PI, 271. Gould’s PI. 116. 7 Co. 2, b. A disturbance of this right consists in prevention of that full and perfect enjoyment of the same, as secured by law, and may be effected, either by the erection of obstacles, or by su Bering it to be so out of repair that it cannot be thus used and enjoyed. 10 Petersdoff’s Ab. 340, margin. Such is tjie nature 0f thjs action. The plaintiffs complain that they have been hindered apd prevented from the full, safe, and perfect enjoyment of this right of way, as secured by law, by the neglect of the town to keep it in repair, and that, in consequence of this neglect, they have sustained the injury of which they complain. So also, actions for a nuisance are local — and, in all cases, it is immaterial, whether the injury arose by misfeasance or nonfeasance. Thus actions on the case for the continuance of a nuisance are local. So are actions for permissive waste. 1 Taunt. Rep. 379. 6 id. 29. 4 M. & S. 101. 2 Bing. 263. Saund. PI. & Ev. 918, 686.</p> <p>2. All actions are local, in which are put in issue, to be tried, the right and title of public ox private easements. Such are actions for obstructing and diverting water courses. The right to the use of a stream of water is an easement, and may be either public or private. On this principle was decided the case of Mersey fylrwell Navigation Co.v. Douglas, 2 East’s Rep, 497, in which case the plaintiffs declared that they were disturbed in the navigation of the river Irwell, by the erection of a dam across said fiver, by the defendants, to which was pleaded the general issue, thus putting in issue the existence of this public right, and the action ‘teas ht¡d local- This principle must apply to the right of way, for this is also an easement, either public or private, and was so applied in thp cqse of Spear v. Bicknell, 5 Mass. Rep. 125. In that case, the plaintiff declared in trespass for breaking and taking away plaintiff’s gate, standing on his land. The defendant replied that the locus in quo was a public highway, and that it obstructed the use pf the same, and that he removed it as he had a right to do, thus putting in issue the existence of this public easement. And the question was, whether a justic could try the same. And it was held that the justice had not jurisdiction oyer the case, for trying the existence of this right of easement was trying the title to a í‘ real franchise,” qnd would oust the jurisdiction of a court, that had not jurisdiction over titles to real estate. The same principle was also de cided ip the following cases : Strout v. Berry, 7 Mass. Rep. 385. 7 Conq. Rep. 419. The same principle has also been applied to an action on the case; for the diversion of a private stream of water, and a judgment rendered by a justice, in such an action, has been decided void on audita querela.</p> <p>_ _ _ It cannot be urged that this question arises collaterally ih the case, for it will be perceived that it arises in the same wayj aS in the cases cited from East’s and Mass. Rep. Each of those cases was pending between two individuals for damages^ and the existence of a public easement was the foundation of the plaintiffs’ action in one case; and of the defendant’s defence in the other. So, this is a suit pending for damages, and the existence oí this public easement is alleged-, traversed, and is the foundation of the plaintiffs’ action. If, therefore^ in those ca'Ses, the existence of the easement arose sufficiently direct to render thosd actions local, it must* necessarily, have the same effect in the case at bar.</p> <p>3. It is a general rule$ that all action^ are local when the cause of action could only have arisen in a particular place or county, and that, where an action is brought in a different county^ it is a defect, of which advantage can be taken under the general issue. 1 Chitty on PI. 284, 271. Saund. Ph and Ev. 412> 414. The cause of action, in this case, is th'e neglect of the town to repair this road. The damages, sustained by the plaintiffs, are a consequence of this neglect. The cause of action could arise in no other place or county, and, necessarily, is as local as the highway itself.</p> <p>These principles of the common law are not altered by our statute, p. 72. Indeed, so far as local actions are concerned, our statute is in affirmance of the common law. The intention of the legislature, in the enacting clause, was manifestly to regulate and limit the venue in transitory actions, requiring them tó be brought in' the county where one of the parties reside — if so, they certainly did not intend to extend the venue in local actions. The proviso of the act, also, manifestly, (from its phraseology,)was intended to except actions local at common law.</p> <p>All statutes are to be so construed that the whole may stand or have an effect according to the maxim, ut res magis vahai quam pereat. The expression’, “ trespass committed on the freehold,” must refer to other cases than those referred to in the former part of the proviso^ under the expression, “ actions oí trespass.” Else it is mere repetition-. The true construction of ipjg proviso is that all actions of trespass and ejectment, and all actions for trespasses or injuries on or to real estate, shall be brought in the county where the lands lie. This action, there-f°re, being founded on an injury to this “ real franchise,” by t]ie neg]ect of the town to keep it in repair, is rendered local by the construction and express provision of the act. Indeed, if the case in 5 Mass. Rep. is correct, it cannot be contended, that any case that tries the right and title of a public easement, or to real estate, can be tried out of the county where that right exists, either at common law, or by our statute.</p> <p>II. The statute creates a liability on the town, only “ where special damage has arisen by means of the insufficiency or want of repair of said road” — and, in the construction of the statute, it has been uniformly held that the damage must solely arise from that cause, and that an action cannot be sustained where the injury arose, partly from the neglect of the town, and partly from the neglect of the party. 1 Vt, Rep. 353. 5 Vt. Rep. 587. II East’s Rep. 60. 2 N. H. Rep. 392. On this principle, it is insisted that the jury should have been charged, that this action could not be sustained, if they believed, from the testimony, that the accident would not have happened, if the nut had not come off, for. in such case, the injury is chargeable to that event, rather than to the insufficiency of the road.</p> <p>There was testimony intro luced, tending to shew, that the nut was insufficiently screwed on, and was, also, insufficient in itself. Either of those facts, if believed by the jury, would entitle the defendants to a verdict; for, if the injury arose from those causes, or if they partly contributed to the injury, it cannot be said that it arose, solely, from the insufficiency or want of repairof said road. The court charged the jury, that the town was liable if the nut was insufficiently screwed on, if done by Cooley’s servants. In this respect, Cooley or his servants were the servan ts of the plaintiffs, and this negligence was the plaintiffs’ negligence. But whether they were or not, it the injury was caused by the nut coming off, and it came off, in consequence of its being negligently put on, by any one, the injury then wholly arose from that cause, and, in no way, can it be said, that it arose solely from the insufficiency of the road. To sustain this action on our statute, the plaintiffs must shew the insufficiency of the road, the exercise of proper care, on their part, and that the injury arose exclusively from the insufficiency of the road. In this case, the injury arose from the nut coming off, and being insufficient in itself, and being insufficiently put on.</p>

<p> (In Chancery.) </p> <p>A receipt in full of all demands is no evidence of the discharge of a mortgage given to secure the party’s future support.</p> <p>A mortgage, conditioned for the support of the mortgagee, admits of compensation ; and where the mortgagor has conveyed his interest, the purchaser will be permitted to redeem, by making compensation for part support, to be settled by the master, and paying a specific allowance for the future.</p>