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Full text of "A digest of all the reported decisions of the Supreme Court of the State of Vermont [1789-1876], contained in the reports of N. Chipman, Tyler, Brayton, D. Chipman, Aikens, and in forty-eight volumes of Vermont reports; also, of all the decisions of the courts of the United States for the district of Vermont, which are found in the Vermont reports"

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HARVARD LAW LIBRARY 



Received • - - * .' iJu/ 



1 



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a^ 



DIGEST 



OF ALL THE REPORTED DECISIOls'S OF 



THE SUPEEME COITET 



OF THE 



STATE OF VERMONT, 



CONTAINED IN THE REPORTS OF N. C'HIPAfAN, TYLER, BRAYTON, 

D. (^HIPMAN. AIKENS, AND IN FORTY EIGHT VOLUMES 

OF VERMONT REPORTS; ALSO, OF ALL 

THE DECISIONS OF THE 



COURTS OF THE UNITED STATES FOR THE DISTRICT 

OF VERMONT 

WHICH ARE FOUND IN THE VERMONT REPORTS. 



BY 

DANIEL ROBERTS. 



BURLINGTON, VT. 

1878. 



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Entered according to Act of Congrese, in the year 1878, by 

IDANIEL ROBERTS, 
In the office of the Li!>rarian of Congress, at Washington. 

SEP 1 7 1907 



Free Press aud Times Book Print, Burlington, Vt. 



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P KEF ACE. 



This Digest has been prepared in compliance with a contract made with 
the Judges of the Supreme Court and the State Librarian, some years ago, under 
a joint resolution of the Legislature. I regret that I have been obliged to keep 
my professional brethren so long waiting its appearance ; — a delay more annoy- 
ing to myself, I may say, than harmful to them, since each year's delay has added 
to the work the substance of a new volume of Reports. It has cost me much 
labor, and, whether it be the better or the worse on this account, it is my 
own without assistance, except in the making up of the Table of Cases and in the 
proof-readings. The work has involved the careful reading of every case reported 
in fifty-six volumes of Reports, and the attempt to extract from each case what is 
in it, omitting nothing important to the decision, and to arrange in orderly form 
the principles of the decisions, with such illustrations as the fects of each partic- 
ular case afibrd. It would have been much easier, by use of scissors and paste- 
brush, to make up this Digest of clippings of the head notes of the cases, as 
reported, but this would have made the work too voluminous, and, besides, these 
head notes are not in all cases trustworthy. I have sought to bring together, or 
in connection, the cases which confirm, qualify, distinguish, or in some way illus- 
trate each other, and, by reference to future citations of the same case, have 
sought to give its judicial histoi-y and show its worth as an authority, and in 
this way to exhibit the present "form and pressure'' of Vermont decisions. 
Still, this is meant to be a digest, not a treatise, which last it could not be to 
much extent of completeness, though aimed in that direction. Another advan- 
tage of this reference to later citations of a case will be appreciated by the 
student of his cases, since, he will be apt to find associated with the case, as later 
cited, other authorities bearing upon the question of his study. A reference to 
the following cases, as cited in the Digest, among many others, may be taken as 
illustrations: Arlington v. Hinds, p. 106; OlcoU v. Duncklee, p. 144 ; Kettle v. 
Harvey, p. 162 ; Tyson v. Doe, p. 16Y ; Barnard v. Flanders, p. 296 ; Adams 
V. Adams, p. 323 ; Buck v. Fickwell, p. 338 ; Wheeler v. Lewis, p. 354 ; Slocum 
V. CatHn, p. 469 ; Allen v. Ogden, p. 527 ; Hunt v. Fay, p. 569; Yale v. Seely, 
p. 612. 

Great pains have been taken to secure accuracy in citation and in the 
Table of Cases. The discovered errors of the print are so few and unimpor- 
tant, being, for the most part, such as suggest their own correction, that I 
have not deemed author or printer deserving the discredit of a table of errata. 



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IV 



PREFACE. 



To save space, I have cited the cases by single names of the parties. I have 
omitted to digest or^cite a very^^few decisions, principally in the earlier reports, 
being such as by change of statutes,^ orjotherwise, have become obsolete, or 
seemed wholly unimportant •, but the names of these may be found in the Table 
of Cases, for the benefit of the antiquary, or the curious. 

1 could wish this were a better book, but, as it is, I commend it to the 
favorable consideration of my professional brethren, to whom I am sure it will 
prove, if not an authority, a convenience and a help, pointing them to the author- 
itative oracles of Vermont law, and serving as a concordance of its scriptures. 

DANIEL ROBERTS. 

Burlington, Vt., April, 18Y8. 



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LIST OF JUDGES 



SUPREME COURT OF VERMONT 

FROM THE YEAR 1778 TO THE YEAR 1878. 
The Damee of those who have been Chief Justices are indicated by the use of small capitals. 



FBOM 




1778, > 
1785,)' 


MOSEP R0BIN8ON, 


1778, 


John Shepardson, 


1778, 


John Faesett, 


1778, 


Thomas Chandler, 


1778, 


John Throop, 


1779, 


Pail Spoonkr, 


1780, 


Increase Moseley, 


1781, 


EuHHA Payne, 


1781, 


Simeon Olcott, 


1781, 


Jonas Fay, 


1782, 


Peter Olcott, 


1783, 


Thomas Porter, 


1784, 


Nathaniel Niles, 


1786, '^ 
1789, 
1796, j 




Nathaniel Chipman, 


1818, J 




1786, 


Luke Knoulton, 


1788, 


Stephen R. Bradley, 


1789,) 
1798,) 


Noah Smith, 


1789, 


Samuel Knioht, 


1791, 


Elijah Paine, 


1791, 


Isaac Tichbnor, 


1794, 


Lott Hall, 


1794, 


Enoch Woodbridoe, 


1797, 


Irrael Smith, 


1801, 


Jonathan Robinson, 


1801, 


Royal Tyler, 


1801, 


Stephen Jacob, 


1808, 


Theophilus Harrington, 


1807, 


Jonas Galusha, 


1809, 


David Fay, 



T(» 


DIED. 


<1784, 
il789, 


May 26, 1818. 


1780, 


1798. 


1786, 


Not ascertained. 


1779, 


<* 


1782, 


ti 


1789, 


*• 


1781, 


May 2, 1785. 


1782, 


Not ascertained. 


1782, 


March, 1815. 


1788, 


March 6, 1818. 


1786, 


Sept., 1808. 


1786, 


Aug., 1888. 


1788, 


Oct. 31, 1828. 


1787, 




1791, 
1797, 


Feb. 15, 1843. 


.1815, 




1787, 


Dec. 12, 1810. 


1789, 


Dec. 16, 1880. 


<1791, 

asoi, 


Dec. 25, 1812. 


1794, 


Not ascertained. 


1794, 


April 28, 1842. 


1796, 


Dec. 11, 1888. 


1801, 


May 17, 1809. 


1801, 


July 14, 1808. 


1798, 


Dec. 2, 1810. 


1807, 


Nov. 8, 1819. 


1818, 


Aug. 16, 1826. 


1808, 


Jan. 27, 1817. 


1818, 


Nov. 17, 1818. 


1809, 


Sept. 24, 1884. 


1818, 


June 5, 1827. 



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VI 



LIST OF JUDGES. 



FROM 
1818, 

1818, 

1815, 

1815,) 

1823, f 

1815, 

1816, 

1817, 

1817, 

1817, 

1821, 

1822,) 

1829,) 

1828, 

1825, 

1825, 

1825,) 

1829,) 

1827, 

1828, 

1830, 

1881, 

1881, 

1884, 

1884, 

1885, 

1888,) 

1852, i 

1842,1 

1844,) 

1848,) 

1845,) 

1846, 

1846, 

1848,) 

1857,/ 

ia51, 

1857, 

1857, 

1867, 

1859, 

1860, 

1865, 

1865, 

1867, 

1869, 

1870, 

1870, 

1870, 

1874, 

1877, 



Daniel Farrand, 

Jonathan H. Hubbard, 

Asa Aldi8, - - - 

Richard Skinner, 

James Fisk, - 
William A. Palmer, 
Dudley Chase, 
Joel Doolittle, 
William Brayton, 
Cornelius P. Van Ness, 

Charles K. Wiu^iams, 

Asa Aikens, 
Samuel Prentish, 
Titus Hutchinson, 

Stephen Royce, 

Bates Turner, 
Ephraim Paddock, 
John C. Thompson, 
Nicholas Baylies, 
Samuel S. Phelps, 
Jacob Col lamer, 
John Matt(x;ks, 
Isaac F. Redkield, - 

Milo L. Bennett, 
William Hebard, 

Daniel Kellogg, - 

Hiland Hall, 
Charles Davis, 

Luke P. Poland, 

Pierpoint Isham, - 
Asa O. Aldis, 
John Pierpoint, - 
James Barrett, 
Loyal C. Kellogg, 
Asahel Peck, 
William C. Wilson, 
Benjamin H. Steele, 
John Prout, 
Hoyt H. Wheeler, 
Homer E. Royce, 
Timothy P. Redfield, 
Jonathan Ross, 
H. Henry Powers, 
Walter C. Dunton, appointed 
'VVheeler, resigned. 



TO 


DIED. 


1815, 


Not ascertained 


1815, 


Sept. 20, 1849. 


1816, 


Oct. 16, 1847. 


(1817, 
( 1829, 


May 28, 1888. 


1817, 


Dec. 1, 1844. 


1817, 


Dec. 8, 1860. 


1821, 


Feb. 28, 1846. 


1828, 


March 9, 1841. 


1822, 


Not ascertained 


1828, 


Dec. 15, 1852. 


<1824, 
<1846, 


March 9, 1858. 


1825, 


July 12, 1868. 


1830, 


Jan. 15, 1857. 


1834, 


Aug. 24, 1857. 


(1827, 
U852, 


Nov. 11, 1868. 


1829, 


April 80, 1847. 


1881, 


July 27, 1859. 


1881, 


June 27, 1881. 


1884, 


Aug. 17, 1847. 


1888, 


March 25, 1855. 


1842, 


Nov. 9, 1865. 


1885, 


Aug. 14. 1847. 


1860, 


March 28, 1876. 


d850, 
\ 1859, 


July 7, 1868. 


(1848, 
a845. 


Oct. 22, 1875. 


<1844. 
U851, 


May 10, 1875. 


1850, 




1848, 


Nov. 21, 1868. 


<1850, 




<1865, 




1857, 


May 8, 1872. 


1865, 




1867, 


Nov. 26, 1872. 


1874, 




1870, 




1870, 


July 18, 1878. 



Resigne<l March 81, 1877, 



in place of Hoyt H. 



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REPORTS COMPRISED IN THIS DIGEST. 



Nathaniel Cbipman'8 Reports, 1 Vol., cited N. Cliip. 

Tyler's Reports, 2 Vols., ♦* 1-3 Tyl. 

Brayton's Reports, 1 Vol., *' Brayt. 

Darnel Chipman's Reports, 2 Vols., ** 1-2 D. Chip. 

Aikens* Reports, 2 Vols., " 1-2 Aik. 

Vermont Reports, 48 Vols., ** 1-48 Vt. 

The citation Slad^s 8UU. denotes a reference to the compilation of the Statutes of 
1824; R, a. to the "Revised Statutes" of 1889; C. S. to the ** Compiled Statutes" of 1850; 
and O. 8, to the ** General Statutes" of 1862. 



Decisions of the Oircuit and District Courts of the United States for the 
District of Vermont, as reported hy Hon. Samubl Prentiss, District Judge, con- 
tained in Vols. 20 to 25, inclusive, of Vermont Reports : — 



IN THE CIRCUIT COURT. 



IN THE DISTRICT (?OURT. 



Bank of United Slates v. Lyman Hal., 20 Vt. Chase, in re, 22 Vt. 64». 

666. I Comstock, in re, 22 Vt. 642. 

Boody et al. v. Rutland & Burlington R. Co., ' Downer et al. v. Brackett etal,, 21 Vt. 599. 



34 Vt. 660. 
Bradley et al. v. Richardson et al, 23 Vt. 

720. 
Byam et al. v. Eddy, 24 Vt. 666. 
Hatfield v. Bushnell, 22 Vt. 659. 
Hubbard et al t. Northern Railroad Co., 25 

Vt. 715. 
Marvin «. Dennison etal., 20 Vt. 662. 



Gassett et al. v. Morse et al., 21 Vt. 627, 
! Moore t>. Jones etal.,2S Vt. 789. 
I Pearee, in re, 21 Vt. 611. 

Reed, in re, 21 Vt. 635. 

RoweU, in re, 21 Vt. 620. 

United States v. One Sorrel Horse, 22 Vt. 655. 

United States v. The Margaret Yates, 22 Vt. 668. 

Wehnan, in re, 20 Vt. 658. 



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TABLE OF CONTENTS. 



A. 



PAGK. 

Abandontnent \ 

Of charter of association, 61 ; of survey | 
of highway as affecting right to land i 
damages, 861 ; the same as to railroad, | 
584 ; of possession, 542 ; of wife by 
husband, 510. 
Abatement of suit. 
By pendency of former suit, 5. No such 
person as the plaintiff, 6. Non-joinder of 
defendants, 8, 5Q, 255 ; of plaintiffs. 7. 
675. Plaintiff under guardianship, 396. 
Pleading in abatement, 582. 
Absence from State. 
As affecting judgment, 76 ; jurisdiction, 
428 ; the statute of limitations, 444. 
Acceptance. 
Of biHs, 96; of deed, 229; of guaranty. 
359 ; of goods by purchaser. 840, 6t2. 
Accident unavoidable. 

No action lies for, 9. 
ACCORD AND SATISFACTION ... 1 
Account stated. 
No bar to action on original account. 2. 

ACCRETION 142 

By change of stream, 742. 
Aequieseence. 
In performance of contract, 180. As to 
boundary, 548; laying tax, 681. 

ACTION 8 

I. When Maintainable .... 8 
II. Commencement 4 

III. Venue. 4 

IV. Discontinuance 4 

V. Abatement by Pendency of 

Former Suit 5 

VI. Survival 5 

VII. Parties 6 

1. Plaintiffs 6 

2. Defendants 7, 



VIII. When not Maintainable . 

Action of account, 10 ; on the case, 18 
on statute, 15 ; of assumpsit, 52 
audita querela, 75 ; bastardy, 89 



9 



PAOE. 

lM)ok account, 110: covenant, 197; 
divorce, 249 ; ejectment, 253, 456, 472 : 
freehold action, 255; forcible entry, 
328 : partition, 495 ; replevin, 603, 407 ; 
trespass, 686, 456 ; trover, 707 : scire 
facias, 685. Action for injuries by 
animals, 80 ; for harboring apprentice, 
89; on arbitration agreements and 
awards, 43; for wrongful arrest, 45; for 
money received, &c., 54, 556 ; use and 
occupation, 56; excessive attachment. 
64 : not keeping property attached, 66 : 
on receipt for property attached, 69 : 
for taking no, or insufficient, bail, 81 : 
on bills and notes, 104: on bond, 
109 : for commissions, 142, 326 ; con- 
spiracy, 146, 175 : on simple contracts, 
174 ; for contribution, 177, 562 ; assess- 
ments on stock subscriptions, 183, 580 : 
betterments, 258; defective fences, 827; 
fraud, 834; fraudulent conveyance, 
846 ; money lost at gaming, 847 ; on 
guaranty, 854 ; for insufficiency of 
highway, 867 ; disturbance of easement, 
876, 456, 668 ; loss of goods at inn, 894 ; 
on insurance policy, 898 ; for intoxicat- 
ing liquors, 409 ; on jail-bond, 415 ; 
judgment, 422; for rent, 436; injury 
to reversion, 439, 692. 708; malicious 
prosecution, 450 ; breach of marriage 
promise, 454 : for negligence generally, 
479 ; nuisance, 487 ; on probate bonds, 
572 ; warranty in sale, 615 ; for seduc- 
tion, 636; slander, 642; libel, 646; 
soldier's bounty, 647 ; on subscription, 
658 ; for wrongful taxation, 666 ; 
threats, 679. By assignee, 48 : mem- 
ber of association, 52 ; carrier, 128 ; 
consignor, 128 ; As respects husband 
and wife, 886 ; infant, 891 ; guardian, 
10, 856, 891 ; insane person, 895 ; mas- 
ter and servant, 454 ; partners, 11, 608 ; 
corporation, 189 ; principal and surety, 



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TABLE OF CONTENTS. 



PAGE. 

560; railroad, 589 ; school district, 632; 
tenants in common, 11, 672 ; executors, 
11, 828 ; turnpike company, 728 ; poet- 
master, 545 ; pound-keeper, 546 ; offi- 
cers of town, 688 ; Against officer serv- 
ing process, 491 ; against sheriff, gen- 
erally, 689 ; for an escape, 415 ; against 
justice peace, 488; against town for 
support of pauper, 519 ; for default of 
its officers, 684. 
ACTION OF ACCOUNT 10 

I. In What Cases the Action Lieh. 10 

II. Procedure 11 

ACTION ON THE CASE 18 

ACTION ON STATUTE 15 

Administrator. See Execi'Turh and 

Administratorh. 
Admimon, 
As evidence, 277; of agent, 28, 278: 
wife, 882 ; partner, 502 : conspirator, 
146, 282. 
Admaneement. 
To cliild, 570 ; evidence of, 278. 

AGENT' 16 

I. Proof of Agency 16 

II. Authority of Agent ; Ratifica- 

tion and Revocation ; Par- 
ticular Agents ; Notice of 

TERMINATION OF AgRNCY ; MoDE 

OF Contracting 17 

III. Duties, Liabiutes and Righth of 

Agent 22 

1. As to his principal ... 22 

2. As to thirdpersons ... 22 

IV. Acts AND Declarationh of Agent 23 

1. As binding his principal . 28 

2. As inuring to the benefit of 
his principal ..... 24 

Wife's agency for husband, 881. 
Aggravation, 
Matter of, in pleading, 694; as affecting 
damages, 228. 
Agistment 
Contract for, 171 ; lien for, 441 ; action 
for, 56. 

ALIEN 25 

ALTERaI'ION of INSTRUMENT . 25 
Ambiguity of writing. 
How far explainable by parol, 800, 804. 

AMENDMENT 26 

Of bill in chancery, 188; of trustee pro- 
cess, 720. 
Amicus Curiae, 
Suggestion by, 251. 

ANCIENT LIGHTS 80 

ANIMALS 80 

APPEAL 82 

I. Effect in General 82 

n. Appeal From (-ounty Court . 32 
III. Appeal From Jistue of the 

Peace 82 



page. 
APPEAL— ConUnued, 

1. Taking an appeal ; . . 82 

2. From xchat judgment . . 88 
8. In what eases .... 88 
4. Proc-eedings after appeal . 34 

IV. Appeal From Probate Court . 85 

1. What order or decree may 

be appealed from ... 85 

2. Who may appeal ... 35 

3. Mode of appeal^ and proce- 

dure thereafter .... 86 

4. Appellate court as a court of 

probate 38 

Appeal in criminal prosecution, 216: from 
order of removal of pauper, 516 ; from 
appraisal of damages for land taken by 
railroad company, 585. 
Appearance, 
Generally, 547 ; by attorney, 72, 78 ; in 
criminal prosecution, 218, 296. 

APPRENTICE .88 

Appurtennnce, 
What is, 238, 746. See Private Way, 
563 ; Grants, § 28. 

ARBITRATION 39 

I. General Powers OF Arbitrai'ors, 

AND their Proceedings . . 39 
II. Revoc^ation . 89 

III. Award, — Publication ; Validity ; 

Construction ; Effect ; Setting 
Aitide^ &c 40 

IV. Action on the Award ... 43 

ARREST 44 

Assault. 

What is, 689 ; murderous assault, 205 : 
to commit rape, 206. 
Assent. 

Effe(;t as to contract, 149. 
Assessment. 
By municipal corporation for sewers, 
&c. , 141 : Assessment of damages, gen- 
erally, 225, 707 ; on recognizance, 598 ; 
on laying out highway, 863 ,- railroad, 
584. 

ASSIGNMENT 46 

I. Ordinary Assignments .... 46 

II. ASSIGNMEN'I'S FOR BENEFIT OF CrBD- 

1TOR8 48 

1. Atcomm4>nlaw .... 48 

2. Under statutes .... 49 
How affected by bankruptcy, 87 ; by 

trustee process, 716. Assignment of 
bill of lading, 91 ; of bills and notes, 
99 ; of lease, 203 ; of mortgage, 467. 

ASSOCIATIONS 50 

ASSUMPSIT 52 

ATTACHMENT 58 

I. Of personal property .... 58 

1. What is attachable ... 58 

2. What is 7iot attachable . . 58 



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TABLE OF CONTENTS. 



XI 



PAGE. 

ATTACHMENT— CV>n^*nw«#. 

8. Reqvitite9 and validity of 
attachment 61 

4. Rights and UabiUUft of 

attaching officer ... 68 

5. Rights and UabiUties of 

eredit&r as to debtor . . 66 

6. Requisites for preserving 

Hen 66 

7. Discharge of attachment 

lien 67 

8. Bailment to receiptor . . 68 

9. JSale on attachment ... 70 
II. Of beal estate 70 

III. Defense by subsequent attach- 

ing CREDITOB 71 

IV. Attachment aided in (^hancery, 71 



page. 

ATTORNEY (AT LAW) 71 

I. His authority 72 

II. Duties and Liabilities .... 72 

IIL Rights • . 78 

IV. Privileged oommunicatiods . . 74 
Denial of authority on audita querela, 78. 
Auctioneer. 
Agent of l>oth parties under statute of 
frauds, 842. 

AUDITA QUERELA 75 

I. When maintainable 75 

II. When not maintainable ... 76 
III. Nature of writ ; Parties, &c . 78 

AUTHORITY 79 

Of one defendant to act for another, 8. 
Ateard. 
Of arbitrators, 40. 



B. 



BAIL ON MESNE PROCESS .... 80 
BaiUff. 

To account, 10. 
BAILMENT 82, 

I. In generai 82 

II. Particular bailments, and negli- 
gence therein 83 

To receiptor. 68. Article lent, 113, 115. 
BANK 84 

As affected by trustee process, 718. 
Bank bills attachable. 58. 

BANKRUPTCY 86 

L U. S. Bankrupt Act of 1841 . . 86 

H. U. 8. Bankrupt Act of 1867 . . 89 

BASTARDY 89 

Betterments 

Declaration for, 258. 

BILL OF LADING 91' 

BiUofsak. 

How far conclusive. 801, 808. 

BILLS AND NOTES 91 

L Form, operation and validity . 92 

II. Presentment and a(X'eptance of 

bills 96 

III. Effect where note is given for 

subsisting claim 97 

IV. Transfer 99 | 

1. Mode 99 

2. Time of transfer; holder 

bona flde— for value . . 99 

3. Effect as to cutting off defenses 

and equities 101 

4. Demand and notice to charge 

indorser 102 

V. Action 104 

1. Note payable in specif c chat- 

tels 104 

2. Lost noU 104 



BILLS AND NOTES— C<m<iVi»i^. 

8. Parties 105 

4. Pleadings 106 

5. Defenses 107 

BONDS 108 

Railroad bonds and coupons negotiable, 
594. 

BOOK ACCOUNT 110 

I. Charges ; — Form of charge 

AND RIGHT TO CHARGE . . . 110 
II. For WHAT THE ACTION LIES . . Ill 

1. In General HI 

2. As affected by agreement and 

courtte of dealing . . . .118 

III. When the Action does not lie 114 

IV. Jurisdiction 115 

V. Judgment to account . . .117 

VI. Auditor AND Audit .... 117 
VII. Effect of judgment as a bar . 121 

VIII. Tender 121 

IX. Statute of Limitations . . . 122 

See Limitation of action, 449. 
Boundaries. 

Description in deeds, 285; in levy of 
execution, 316. Stream as a boundary, 
289 : comer in a stream, 742 ;^Lake 
Champlain, 484; highway, 289; rail- 
road, 240 ; fence, 828. Boundary of 
highway, 861 ; of school district, 626 ; 
of village, 739. 
Burden of proof 

See Evidence, III. As to time of Tm- 
dorsement of note, 99,^ and considera- 
tion thereof, 102; questions of negli- 
gence, 874, 590; establishing will, 750. 
BURIAL GROUNDS 122 

Disturbing remains of the dead, 214. 



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c. 



PAOR. 

CARRIERS 122 

CASES CRITICISED 128 

Canm morth. 

Gift, 348. 
CatUe 

See Animalh: PorNOt*. Wounding of, 
208 ; on railroad track, 592. 

CERTIORARI 127 

CHANCERY 127 

1. .TrKIHDICTlON 127 

1. Ordinary jurutdieUon . . .127 

2. Limitation by legal retnfdy . 180 

3. Auxiliary Jurisdiction . . 181 

4. Retaining jurindiction. onc-e 

attaehed 181 

II. SriT,WHERETOBEBROrGHT: — SkR- 

vi( E, &c 182 

III. Pi.EADIXUH 132 

1. The bill 182 

2. Demurrer 188 

8. Plea ; answer ; erosttMll . .184 

IV. PKOrEEDINGS AKIEK IHHVK . . .186 

1. The teHimony 185 

2. Report of manttr . . . .186 

V. PR(K'EEDINfl8 AFTER DBt'RKE . . 187 

1. Appeal 187 

2. Hearing on appeal . . . .188 
8. MandaU 189 

VI. REVlHiiRV l»RO«'EEDINOs . . . .189 

Cheeks. 

Certifying 85. 
CHIPMAN, (NATHANIEL) .... 140 
Chureh lair. 

Force of, 51. 

CITY OF BURLINGTON 140 

CLOUD ON TITLE 141 

Commencement of suit. 

At law, 4; in chancery, 182. 
COMMISSIONS 142 

Action for, 175. 
COMMIXTURE, -ACCRETION ... 142 

Alluvion, 742. 

COMMON LAW 142 

Complaint. 

For criminal offense, before justice, 214, 
405. 

COMPOSITION 142 

CONDITION 148 

In conveyance, 144 ; in simple contract, 

2, 161 ; to note, 94 : to tender, 2, 676. 
Conditional sale^ 628. 

Confessioji. 

Of prisoner 219. 
Confidential cotnmunications. 



PAGE. 

Between client and attorney, 74 ; hus- 
band and wife, 117. 
CoTmderation. 

Of note, 90, 94, 98 ; of indorsement, 101 ; 
of guaranty, 855: of contracts gener- 
ally, 160 ; of deed, 227, 844, 846. Ille- 
gality of, 162, 409, 620 ; failure of, 108 ; 
inadequacy of, 128, 844. Proof of, by 
parol, 808, 842. Fraudi*, Statitte of, 
§§. 16, 18. Averment of, in pleading, 
57, 585. 

CONSPIRACY 146 

Indictment for, 208, 212. 
CONSTITUTIONAL LAW 146 

I. Powers of LsoiSLATrRE .... 146 

II. CoNSTRl'tTION 147 

Setting over old road, 868. Changing rail- 
road trustees, 688. Taking recogniz- 
ance of sheriff, 689. liCgalizing grand 
list, 668. Laying turnpike on highway, 
728. Soldier's bounty, 647: voting,655. 

CONTEMPT 148 

CONTRACTS. (SimpU) 148 

I. Nature, REgriniTEs and Validity 148 

1. Capacity of party : Contract 

implied by law; Delivery; 
■ Assent 148 

2. Consideration 150 

3. Illegality ; Against public 

policy ; Restraint of trade ; 
Duress 152 

II. Interpretation. Rules; Instan- 

ces ; Particular terms ; Usage: 
Law of place ; Condition prece- 
den t : Dependent and independent 
stipulations ; PenaUyy or liqui- 
dated damages; Whether joint, 
or several 155 

III. MoDiFiOATi<»N ; Rescission; 

Power to Stop Performance 164 

IV. Certain Particular Contracts . 168 

1. For service 168 

2. Of indemnity 170 

8. Agistment 171 

4. Contracts in the alternative . 171 
V. Actions on Simple Contracts . 172 

1. Parties 172 

2. Acti/)n and defense as depend- 

ent on demand; expiration 
of credit; performance . .174 
8. Action, general or special . 176 
VI. Damages,— Recoupment . . .176 
See Wager. Contract to manufacture, 
840, 614. 



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Contribution 
Between sureties, 177, 562 : incumbran- 
ces, 471 ; by dowress towards incum- 
brance, 352. 
Convermon, 
Generally, 708 : by bailee, 82 : tenant in 
common, 675. Damages for, 223, 



CORPORATION 

1. CoBPOBATE Existence, and 

Pboof Thbbbof . . . 
II. Stock and Stockholdekb 

III. Meetlngs and Recobdh 

IV. Ofticebs and Agents . . 

V. COBPOBATE POWEBS . . . 

VL CoBPOBATE Liabilities 
VII. Remedies fob and againht 

VIII. FoBFEITrBE ANT> DI8HOLUTION 

C&rpus deUetL 
Proof of, 219. 

0O8T8 

I. At 'law 

\. In the county court, and in- 
ferior tribunal .... 
2. In the supreme court . . . 

II. bf Chanoebt 

C^nterfnting. 
Prosecution for, 208 : instruments for, 
210: materials, 10: base coin, &c.. 
521. 
Counts, 
Common money counts, 54, 106 ; special 
counts, 56. 
COUNTY COURT 

I. ObIGINAL jrBISDICTION .... 

II. ApPEIXATE JUBI8DICTION .... 

County order, 95. 
Coupons. 

Of railroad bonds, 588, 594. 

COVENANTS 

I. Action in genebai 

II. Covenants fob title .... 

1. Of seisin 

2. For quiet enjoyment . . . 

3. Against incumbrances . . 

4. To tcarrant and defe-nd . 

III. Covenants in i^ases .... 



181 

181' 
182 
1851 
185 S 
186 
188| 
189| 
190 



190 

190 
193; 
194 



195 
195 
197 



197 
197 
198, 
198 1 
199| 
199' 
200| 
208' 



PAGE. 

Credit 
Fraudulent recommendation for, 882. 

CRIMES 204 

I. In genebal 204 

II. Offenses against life and peb- 

soN, (G. S. Ch. 113) ... 205 

1. Homicide and murderous 

assaults 205 

2. Bape and assault mth 

intent 206 

III. Offenses against pbopebty, 

(G. S. Ch. 113) 206 

1. Arson 206 

2. Burglary 206 

3. Larceny 207 

4. False pretences ... 208 

5. Wounding, <&c,, of cattle . 208 

6. Wilful mischief ... 208 

IV. FoRGEBY AND CoUNTEBFEITING, 

(G. 8. Ch. 114) 208 

V. Offenses against public jrs- 

TicE, (G. S. Ch. 115) ... 210 

1. Perjury 210 

2. Suppressing evidence . 211 
8. Impeding an officer . .212 

VI. Offenses against the public 

peace. (G. S. Ch. 116) . . 212 

VII. Offenses against Chastity, 
Mofaltty and Decency, 
(G. 8. Ch. 117.) Adultery: 
Bigamy ; Incest ; Keeping 
house of ill fame, dr . . .213 
VIII. Offenses against piblic policy 

(G. 8. Ch. 119) 214 

IX. Criminal pbocedube .... 214 

1. Proceedings before justice 214 

2. Indictments and informa 

tions 216 

3. Proceedings after indict- 

ment 218 

Crini. con. 
Proof of marriagt% 213; mitigation of 
damages, 225. 

CUSTOM 221 

Usage of business, 160. 
Customs. 
Revenue laws, 780. 



D. 



DAMAGES 221 

Action on award, 44 : indebitatus assump- 
sit, 58 ; officer's receipt, 69 ; bond, HO ; 
contracts, 176 ; for railroad construc- 
tion, 588; covenant of seisin, 198: 
against incumbrances, 200: of warranty, 
202 : in ejectment, 257 : for contribu- 



tion, 177, 562: deceit in sale, 385: 
warranty, 618; injuries on highway, 
873: takingland for high way,368; for 
railroad, 584 ; on injunction, 393 : jail- 
bond, 415 ; for escape, 415, 640 ; fault 
in execution of process, 491 : malic- 
ious prosecution, 452 : support of pau- 



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PAOE. 

per, 618 : seduction, 686 : slander, 644 : 
trespass, 688 : tenants in common, 676: 
assessment of, 707. 

Damnum absque injuria. 
No action therefor, 9. 

Date of writing. 
Force and effect of. 148, 229, 786. 

Death. 
As revoking authority, 20, 80: apprentice- 
ship, 88 : as affecting suit, 4, 5, 79, 547, 
550, 721 ; statute of limitations, 444. 

DeclaraU<m%. 
Of party, 277; agent, 28, 278: former 
owner, 28\ : particeps, 146, 282: de- 
ceased persons, 288 : wife, 882 : part- 
ner, 602. Dying declarations, 285. Jieit 
gestae, 285. 

Decree, SeeCHANCEKY,IV. 8. Ji'dgmentV. 

DEDICATION 226 

DEED OF LANDS 227 

I. The INHTKrMKNT AND IT8 REgriH" 

1TE8 227 

1. Consideration 227 

2. StatuU system • ... 228 
8. Signing 228 

4. Sealing 228 

5. Witnessing 228 

6. Delivery and ticeeptanee . 228 

7. Acknmcledgment and proof 22^ 

8. Recording and notice. . . 230 

II. What habses. Quit claim deed ; 

warranty ; freehold infuturo ; 

appurtenances 232 

III. Constriction 233 

1. Office of habendum ... 233 

2. Hules of interpretation . 234 

3. Instances, - a« to description , 

boundaries, d'c . , , . 285 



PAGE. 

Deed of corporation, 187. 
DEFINITIONB. (Vfords-^ Phrases) . . 240 
Delivery. 
Of note, 92 ; bond, 109 ; deed, 228 ; other 
writen contract, 148 ; of goods on pur- 
chase, 841, 610: of gift. 874. 
Demand. 
Before suit, 11, 68, 104, 174; by agent, 
24; to charge indorser, 102 ; on execu- 
tion, 818. 
Deposit. 
As a bailment, 88 ; special in National 
Bank, 86 ; certificate of, 95. 

DEPOSITIONS 248 

Desertion. 

Of Soldier, 650. 
Discontinuance. 
Of suit, 4, 481 ; costs on, 190 ; after ex- 
ceptions, 807. Agreement to discon- 
tinue, 76. Discontinuance of highway, 
365. 

DIVORCE 249 

I. Certain causes 249 

II. Powers of Court 250 

III. Process, proceedings and evi- 

dence 260 

IV. Decree and its EFFEtn- .... 251 
Insanity a full defence, 396. 

Dog. See Animals. 
Domicile. 
As affecting legal settlement, 506; tax- 
ation, 661 ; trustee process, 710 ; of in- 
sane person, 396. 

DOWER 252 

Dtiress. 
As affecting contracts, 155, 614. 



E. 



EoMmtnts, 
As acquired and defined by possession, 
80, 548, 568 ; in lands taken for high- 
way, 876 ; for railroad, 685. 

EJECTMENT 263 

I. Ejectment 263 

1. For what the action lies. . . 253 

2. The plainU'ffand his title . . 253 

3. The defendant — his posses- 

sion—ouster 256 

4. Joinder of defendants . . . 266 
6. Declaration 256 

6. Defence 256 

7. Ejttent of recovery .... 266 

8. Effect of judgment .... 267 

II. Declaration for Beiterments . 258 



Election. 
Voting at, 10, 655, 789. Election in con- 
tracts of sale, 618; under will, 755; as 
to jurisdiction, 424. 
Emancipation. 
Of infant, 889, 510, 651. 

ERROR 269 

I. Writ of Error 259 

II. What is revisable on W^rit of 

Error or Exceptions . . . 260 
Escape. 
What is, and liability for, 413, 640. 

ESTATES 268 

Conveyance to husband and wife, 886; 
land adjoining, or covered by, highway. 



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PAGE. 

376; created by will, 758; merger of 
estates, 468 ; injury to reversion, 489. 

ESTOPPEL 264 

I. In Gekbral 264 

11. By deed 265 

III. By REOOBD 266 

IV. Equitable estoppel 267 

V. Pleading and oivino in etidbni^e 270 

Conclusiveness of judgment, 417. Prin- 
cipal bound by act of agent, 23. Tenant 
cannot deny landlord's title, 484, 
Etietion. \ 

Aa a breach of covenant, 201, 208; in i 
ejectment, 255. ' 

EVIDENCE 2711 

I. Nature, kinds and effect, in i 

6ENEBAL 271 i 

II. Circumstantial and (?okbobor. i 
ATIVE 272, 

III. Presumption— burden of proof . 275 

IV. Admissions and declarations . 277 

V. Hearsay 288 



EVIDENCE- 
1. 
2. 



11. 



299 



III. 



IV. 



283 



8. 
4, 



VI. 
VII. 

vin. 

IX. 
X. 

XI. 



XII. 
XIII. 



In general .... 
Beclaratioiu of deceased per- 

sons 288 

Redtal in deed. .... 284 

Reputation 284 

Dying declarations .... 284 
Testimony of former witness . 285 

Res Gest.« 285 

Opinion— purpose, intent, &c. 287 
Handwriting — attesting wit- ' 

NE88 289' 

Ordinances; private statutes; 
foreign laws ; judicial pro- 



PAOX. 

Continued, 

Tn general 299 

To vary a writing; to give 
it application . . 
Suppressing evidence, 211, 279. 

EXCEPTIONS .805 

I. Taking, signing, and filing . . 305 
Requisites of bill as to refer- 
ence AND STATEMENT . . . 806 

Entry in Supreme Court ; ef- 
fect ; DISCONTINUANCE . . . 807 

(Construction of bill of ex(^ep- 

TIONS 308 

V. Case stands as upon writ of 

RRKOR 309 

Negativing exception, in pleading, '21 7. 
Exchange. 
Diflfers from sale, 610; Of lauds under 
statute of frauds, 388. Rate of ex- 
change, 161. 

EXECUTION 309 

I. Issuing of execution .... 809 
Form and requisites .... 810 

Effect 312 

Relief against erroneous exk(^u- 

TION 818 

Proceedings under bxf.c^ution . 818 

1. Jn general 318 

2. Lety upon personal property Z\^ 
8. I^ery on real entale . . .314 

Va<5ATING informal LEVI eh . .818 

See Sales, V. 
EXECUTORS AND ADMINISTRA- 
TORS 819 



II. 
III. 
IV. 



VI. 



XIV. 



CEEDINGS 


. 291 


I. Appointment and revocation 


. 819 


Best and secondary . . . 


. 292 


II. Rights, authority and duty 


. 819 


Documentary 


298! III. Liability 


. 822 


1 . Toum, Clerk's rec^ords and cer 


i IV. Accounting 


. 828 


Ufieates 


298 V. Actions by 


. 825 


2. Court records and files , . 


294 


Account between executors, 11. 




8. Officer's returns . . . . 


296 


Expenses of suit. 




4. Other official entries . . . 


297 


Whether recoverable as damages, 222. 




5. Private documents . . . 


297 


Experts. 




Parol evidence 


299 


As witnesses, 288, 290. 





E. 



FACTOR— COMMISSION MERCHANT 826 
Famify. 

Who are of, 514. Services and support in, 
494. 
Fellou) servant. 

Negligence of, 591. 
Felony. i 

What is, 204. Adultery is not, 218. I 

FENCES 827! 

Along railroads, 587. 



Fetice viewers. 

Cannot settle disputed title, or bound- 
aries, 828. 
Fixtures. 

What are, 595. Tenant's right, 487. 
FORCIBLE ENTRY AND DETAINER 828 
FOREIGN LAW 829 

Proof of, 291. Pleading, 528. 
ForfeUure. 



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PAGE. 

FORFEITURE— ConUnued, 
Of charter, or grant, 680,729. Relief 
from, 128, 145. 

FORMS 880 

Prescribed by statute, eflfect of, 657. 

FRAUD 880 

I. What oonstitittes FKArn or 

DE(«IT 880 

II. Effect of fraud 338 

III. Right of ACTION the|BFor; Plead- 
ings ; Evidence 884 

FRAUDS, STATUTE OF 885 

1. Promise of administrator . 8 
II. Promise to answer for the 

debt, &c., of another . . 885 

III. Contract for the sale of lands 888 

IV. Agreement not to be performed 

within one year .... 840 



page. 
FRAUDS, STATUTE OF,— ConUnn^, 

V. Contract FOB the SALE of goods 840 

VI. The memorandum 842 

VII. Force of contract without 

memorandum 848 

VIII. Pleading and evidence , . . 848 
FRAUDULENT CONVEYANCE ... 848 
I. What is, and what is not; 

Effect; Evidence .... 848 

II. Avoidance by administrator . 845 

III. The penalty 845 

1. When it is incurred, and 

when not 345 

2. Action to reeofMrpendU^ . 846 
Freight. 

How interpreted, 27 Vt. 77. Carrier's 
right to, 128. 
FUGITIVE 847 



G. 



GAMING 847 

GIFT -847 

GOVERNOR'S RIGHT 848 

(h*and list. 

Requisites of, 662. 

GRANTS 848 

OrcUuit-ous undertaking. 

Liability for neglect in performance of, 4. 

GUARANTY 850 

I. Construction and effect. . . 850 



GIT A RANT V CmiUnued, 

W. Conditions of guarantor's 

liability 858 

IIL Satisfaction and release . . . 854 

IV. Action 854 

Implied guaranty of geuuiness, 94. 

GUARDIAN 855 

Gvrest. 
At an inn, 894. 



H. 



HABEAS CORPUS 857, 

Handwriting. 

Proof of, 259. 
Harboring. 

Apprentice, 89. 

HARRIS' GORE 857 

HIGHWAYS AND BRIDGES .... 858 

I. ESTABLISHMENl' 858 

1. By dedication and adoption 

and by adverse use . . . 858 

2. By statutory proceedings . 359 
II. Pent roads 864 

III. Discontinuance 865 

IV. Repairs ; Highway surveyor . 365 
V. Indictment for not building, or 

REPAIRING, OR FOR OBSTRUCTING 866 

• VI. Civil liability of town for 

INSUFFK lENCY 867 

VII. Rights of land owner, and of 

THE PUBLIC 876 

Highway as boundary, in deed, 289 ; in 
levy of execution, 817. 



HOMESTEAD 877 

Setting out by probate court, 85. 

HOUSE (CASTLE) 878 

Hunting, fowling and fishing. 
Constitutionality of laws regulating, 147. 

HUSBAND AND WIFE 879 

I. Rights and powers of husband 879 
l.Asto wife's property . . . 879 

2. Toaetforher 880 

II. Duties and liabilities of hus- 
band 880 

III. Rights and Powers op Wife . . 881 

1. As agent of her husband . . 881 

2. As to her own property . . 882 

3. DisabiUUes 884 

IV. Dealings between husband and 

WIFE 384, 

V. Conveyance by or to them . . 385 
VI. Suits by, against, or between 

THEM 886 

VII. Witnesses and evidence . . . 887 
Wife's right in homestead, 877. 



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I. 



PAGE. 

Ineumbranee, 
What is, 99. 
Indemnity. 
Contract of, 170; damages for breach, 
322,420. 
Indictment. 
Crimbs, 204, 216; NriHANrE, 487; High- 
ways, 866. 
Indoraement. 
Of bill of lading, 91 ; of bills and notes, 
99 ; of pa3rment, 302. 

mPAJ^T 389 

I. AoK; Disabilities IN OBNERAi. . 389 

II. His oontbacts . 389 

ni. Bistorts 391 

IV. Actions by and against . . . 391 
See Parent and Child, 498. Relief 
on audita querela, 76. 

INJUNCTION 392 

To restrain proceedings at law, 129. 

INNKEEPER 394 

Burglary in inn, 206. 

INHANE PERSON 395 

Relief on audita querela, 76. 

INSOLVENCY 397 

Inepeetion ofpaperif. 
Order for, refused, 136. 

INSURANCE 397 

I. Fire Insurance 397 

U. Life Insurance 399 



, PAOB. 

INTEREST 399 

Restriction of, as to banks, 85 ; On pen- 
alty of bond, 110 ; on execution against 
debtor, in jail, 414 ; on legacy, 765 ; 
against town, 681 ; as damages in tort, 
223 ; as affeeted by law of place, 161 ; 
trustee process, 715. 

INTERPLEADER 401 

INTOXICATING LIQUORS .... 402 
I. Constitutional questions . . 402 

1. Act dependent on popular 

vote 402 

2. General poteers of legislature. 402 

3. Instances 402 

II. Definitions 408 

III. License acts 404 

IV. Prohibitory Acts 404 

1. Particular offenses .... 404 

2. Complaint and prosecution . 405 

3. Search and seizure .... 406 
• 4. Replevin of liquors seized . . 407 

5. Trial, evidence, t^e . . . . 408 
V. Effect on contracts .... 409 

1. As to town officers .... 409 

2. As to other persons .... 409 
May be attached and sold on execution. 



INTOXICATION 



410 



J. 



JAIL. (^Prisoner; jail bond) 411 

I. Jail ; Commitment 411 

11. Discharge of poor debtors . . 412 

III. Jail bond 413 

1. Validity ; brexich .... 413 

2. Release 414 

8. Assignment 414 

4. Action on jail bond . . .415 

5. Action against sheriff . . . 416 
JUDGMENT 416 

I. In GENERAL; DIFFERENT KINDS .416 

II. Validity 416 

in. Conclusiveness and effect . .417 

IV. Judgment of another state . . 420 
V. Decrees in chancery .... 422 

VI. Action on Judgment .... 422 
In account, 18, 117 ; assumpsit, 58 ; on 
bond, 110. Against absent party, 76 ; 
infant, 76 ; insane person, 76. Effect 
as a bar, 16, 121, 417. How affected 
by appeal, 32. Date of, 416, 482; 



arrest of, 645. No action for procur- 
ing wrong judgment, 10. 

JURISDICTION 428 

As to bridges and highways, 361 ; as de- 
pending on form of process, 719 ; of 
foreign court, 421 ; of U. S. courts, 730 

JURY 425 

I. Grand Jury 425 

II. Town grand juror 425 

III. Petit Jury 425 

Setting aside verdict, 482. Statutes affect- 
ing right of jury trial, 147, 655. Rela- 
tive functions of court and jury, 701. 

JUSTICE OF THE PEACE 427 

I. Appointment and qualification. 427 
II. His .jurisdiction as a court . . 428 

III. Procedure 430 

IV. Records 438 

V. Action against justice .... 488 

Appeal from, 32. 



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L. 



PAOR. 

LAKE CHAMPLAIN 484 

LANDLORD AND TENANT .... 434 

L Character of tenancy . . . 434 

IL Disputing landlord's title . . 434 

in. Terminating tenancy . . . .435 

IV. Rent 486 

V. Tenant's right 487 

VI. Letting on shares 437 

VII. Injury to reversion .... 439 
Lapge of Ume. 

Ab affecting relief from mistake, 461 ; 
mortgagor's rights, 465 ; as basis of pre- 
sumption of payment, 528 ; of corpor- 
ate existence, 182, 627 ; of other pre- 
sumptions, 276, 552. 
Late of Place, 
As to contracts generally, 160 ; interest, 
161, 401 ; partnership, 161 ; assign- 
ments, 50 ; mortgage, 477 ; wager, • 
740; bills, 95; trustee process, 716; 
administration of estate, 568; judg- 
ments, 420. See Foreign Law. 
Lease. 
To commence in future, 338. Covenants 
in lease, 203. Assignment of, 203. Rail- 
road lease, 582. See Landlord and 
Tenant, 434. 
Legacy. 
Of equity jurisdiction, 128. Interest on, 
822. See WiLiji. 



LEGAL TENDER ACT 489 

JjetUng land on shares, 10, 437. 

LICENSE 440 

Deed constnied as a license, 746. 

LIEN 440 

LIMITATION OF ACTION 441 

I. Cases to which the htatute of 

limitations applies .... 441 

\. At law 441 

2. In chancery 442 

When the statute begins to run. 443 
Suspension of the statute . . 444 

1. By supervening dtsability . 444 

2. Ineffectual suit 444 

3. Absence from the state , . . 444 
Avoidance of statute .... 446 

1. Hy nckrwwledgemeut ; iietD 
promise; part payment . . 446 

2. Mutual aeco^mts .... 449 
Pleading 450 

Statute as applicable to trusts, 727; at- 
torney's bill, 73; insurance policy, 399. 
Limitation in deed, 145. 
Liquidated dama^en. 
What is, 164, 226. 
Livery stable keeper. 

Liability of, 84. 
Lost Instrument. 
Effect of, 104. Proof of, 292. 



IL 
IIL 



IV. 



V. 



M. 



MaU. 
Remittance by, 107,522. Presumption of 
receipt of letter mailed, 275. 

MAINTENANCE 450 

Majority. 

Right of control, 51. 
MALICIOUS PROSECUTION .... 450 

MANDAMUS 452 

Manure. 
When real estate passing by deed, 233, 
594. As between landlord and tenant, 
437. 
Marginal entry. 
On bill or note, 92 ; on contract, 149. 

MARRIAGE 453 

Proof of in criminal cases, 213, 214, 297, 
463; in divorce cases, 251. Annulling, 



128, 250. Extinguishes woman's 
powers as guardian, 355 ; as adminis- 
tratrix, 453. Effect on suit, 458. 
Marriage of insane persons, 396. 

MARRIAGE PROMISE 454 

Damages, 181. 
MARSHALING SECURITIES .... 454 

MASTER AND SERVANT 454 

See Railroad, III. 
Measure of proof. 
In penal, criminal, and civil actions, dis- 
tinguished, 16, 271, 706. 

MEETING HOUSE 466 

Memorandum. 

As evidence, 278, 281, 298, 696; under 
the statute of frauds, 342. 
MEMORIiVLS 467 



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XIX 



PAGE. 

MERGER 457 

I. A8 TO t'ONTKAt'TH 457 

n. Aft TO ESTATES 458 

See Private Way, 563. Original con- 
sideration not merged in lost note, 104. 
Judgment as a merger of the rebuions 
of principal ami surety, 558, 

MILITIA 459 

MinUter, 

First settled minister's right, 349. 
Minute. 
Of time of exhibition of process, 16, 89 ; 
of complaint, 215: indictment, 216. 
MUjoinder. 
Of defendants, 9. 

MISTAKE 459 

In contract of sale, 608. 
Money counts. 
Use of in assumpsit, 54. 



page. 

MORTGAGE 461 

I. What is a moktoage .... 461 

1. Characteristics in general . 461 

2, Form; Future advanc-es; 

Equitable mortgage . . . 463 
11. Relative rights of mortgagor 

and mortgagee 465 

III. AhSIGNMENT ; SrBROGATION ; Cox- 

TRIBl'TION 467 

IV. Remedy at law 472 

V. Remedy in chancery .... 478 

1. Bill to foreclose ; to redeem . 478 

2. Parties 474 

3. 7"he (u^mint 474 

4. Decree 475 

VI. Mortgage of chattei^ .... 476 
Railroad mortgages, 582. 

Motive. 
Does not alter character of lawful act, 9, 
664. 



N. 



NAMES 478 

Name in bequest, 751 ; of lot by reputa- 
tion, 739. I 
Necessaries. \ 

Furnished to wife, 380 : to infant, 390, ' 
498. 
}feB^teat. 

Writ of, 576. 
Negatif>e pregnant. 

Instance, 692. 
NEGLIGENCE 479 

See Bailment, II. Mutual negligence, 593. 
Negotiable instruments. 

What are, 95, 583, 594. 

NEW TRIAL 481 

L Upon what grounds granted . . 481 

1. In general 481 

2. FauU of, or in respect to, jury 482 

3. Error of court 483 

4. Surprise on triol .... 484 

5. Newly discovered evidence . 484 

6. Statute provisions .... 485 
II. Proceedings and practice . . . 486 



Nolle prosequi. 

When permitted, 218. 
Nonjoinder. 

Of parties at law, 7, 8, 58, 118, 675. 
Non suit. 

When allowed, 548. 
No such person. 
As plaintiff, 6. 

NOTICE 486 

To agent, 24 ; bank, 84 ; guarantor, 358 ; 
partner, 501 ; railroad trustees, 582. 
To charge indorser. 102 ; to quit, 485. 
Of assignment, 47, 717; termination 
of agency, 21 ; dissolution of partner- 
ship, 502 ; sale of goods, 622 ; land, 282, 
626 ; of fraud, 334 ; impounding, 546 ; 
defect of highway, 378; injury on 
highway, 375. By carrier, limiting 
liability, 123, 589. Possession as 
notice, 542. 
NUISANCE 487 



O. 



OFFICER 487 

I. Appointment; Title; Liability . 487 
II. Officers connected with service 

OF PROCESS 489 

1. Powers, duties and liabilities 489 

2. Fees 492 

Powers and duties as to arrests, 44 ; 



attachments, 63. Justification by, 575 ; 
impeding, 212. Damages in actions 
against, 224. Return as evidence, 78, 
296, 300 ; as an estoppel, 267. Pro- 
tection to officer of court of chancery, 
394. Official bond, 109. 



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TABLE OF CONTENTS. 



Opinimi. 
Kb evidence, 387, 874, 750. Expression 
of, how far a fraud, or warranty, 330, 
156, 333 ; as affecting qualification of 
juror, 426; justice of tlie peace, 
428. 

Orders. 



PAOE. 

To produce books and papers, 118; to 
inspect papers, 136. 
Ordinances, 

Of city, 140. 
Ouster. 
Wtiat is, 255 ; betw^een tenants in com- 
mon, 673. 



P. 



PARENT AND CHILD ...... 493 1 

I. Parent's RIO HTH 493; 

II. Parent's liabiutikp .... 498 
III. Skrvices and hupport in the j 

FAMILY 494 

Particeps. 

As a witness, 213. His testimony, 220. i 

Parties. 

To actions at law, plaintiffs, 6 ; defend- 
ants, 7. In assumpsit, 58; audita 
querela, and all judicial writs, 78 ; 
error, 259 ; action on note, 105 ; simple 
contract, 172 ; replevin, 604 ; consignor 
or consignee, 123. To bill to foreclose 
or redeem, 474. 

PARTITION 495 

I. At law, on petition .... 495 

II. The petition and proceedings . 496 

III. Partition by agreement, or deed 496 

In probate court, 564. Between husband 

and wife, 387. 

PARTNERSHIP 497 

I. What constitutes a partnership 497 

1. As between the parties . . . 497 

2. As to third persons . . . 498 
II. Proof of partnership .... 498 

III. Rights and liabilities .... 499 

1. In general 499 

2. In respect to partnership 

property and partnership 
dehU 499 

3. Act of one partner as bindijig 

the others 500 

IV. Dissolution and change of mem- 

bership 502 

1. Partner's authority after dis- 

solution 502 

2. Continuing liability , . . 502 
V. Rights and remedies .... 503 

1. Between the partners . . . 503 

2. As to third persons .... 505 
Partners summoned as trustees, 711. Ac- 
tion of account between, 11. 

PATENT 505 

PAUPER 505 

I. Overseers of the poor . . . 505 

II. Settlement 506 

1. In one's own right .... 506 



FAVPl^n— Continued. 

2. By derivati4}n 509 

3. Act O/1801 511 

III. Removal of pauper .... 518 

1. Who are subject to removal . 518 

2. Order of removal .... 515 

3. Appeal 616 

4. Pleadings 517 

5. Validity and effect of order 517 

IV. Expenses for relief of pauper . 518 
V. Proceedings against and 

BETWEEN KINDRED 520 

VI. Wrongful transportation of 

PAUPER 520 

VII. Certain contracts 520 

PAYMENT 521 

I. What i;onstitute8 payment . . 621 
II. Part payment as a full satis- 
faction 528 

III. Application of payments . . 524 

IV. Payment as affording a right 

OF ACTION 525 

V. Payment as affecting the 

securities 527 

VI. Pleading 527 

VII. Evidence; Presumition . . . 528 
Note as payment, 97. Payment of note, 
107. Place of payment, 98, 95, 96; 
payment pending suit, as affecting 
costs, 191. Paying into court, 549. 
Under protest, 155, 666. 
Penalty. 

Of bond, 110; contract, 164. 
Pew. 
Sale of, 52. Title in, 456 ; Stat. Frauds, 
389. 
Physicians. 
As experts, 288. Negligence of, 481. 

PLEADING 528 

I. Rules of general application . 528 
II. The declaration | 580 

1. In general. 580 

2. How aided by plea, or verdict 680 
III. Pleas 682 

1. Dilatory pleas and motions to 

dismiss 632 

2. Speeinl pleas in bar . . . 684 

3. General issue with notice . . 686 



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PAUS. 

PLEADING— ConUHu^. 

IV. Rkplication 586 

V. DBMrRBER 536 

PUdff€, 
Id general, and as distinguished from 
mortgage, 88, 476. 

POSSESSION 587 

Taking and retaining on process, 61. Use 
as evidence of right, 748. 

POSTMASTER 546. 

POUNDS AND IMPOUNDING ... 545 
Pawerg. 
Of agent, 17 ; clerk in store, 20 ; steam- 
boat captain, 20 ; officers of bank, 9, 
84; corporation, 185, 186, 579: admin- 
istrator, 819 ; guardian, 855 ; husband, 
879: wife, 881 ; partner, 500; school 
teacher, 634: sheriff, 44, 639; collector 
of taxes, 664 ; towns, 680. Power, of 
attorney to convey, 281, 886. 
PRACTICE (at law) 547 

I. GbNESALT ; AND IN COINTT COUKT 547 
II. In 8UPRKMB CX)ITRT 549 

PRESCRIPTION-PRESUMPTIVE 

GRANTS 552 

Pretumption, 
Generally, and instances. 275. Ah to law 
of other state, 276: regularity and 
scope of judicial proceedings, 808, 
417; of officer's proceedings on execu- 
tion, 814. Of continuance of life, 454 ; 
of corporate existence, 182, 627, 680 ; 
of time of alteration of instrument, 26 : 
of time of transfer of note, 99 : of 
divorce, 251. From lapse of .time, 276, 
442, 552 ; from possession, 548. 

PRINCIPAL AND SURETY .... 554 
I. Thb relation— How conktiti'tkd 

AND BVIDBNOKD 554 

II. Rights and liabilities of spretieh 555 

1. A$ respects the creditor . 555 

2. As respects the principal . 560 
8. As between iM sureties . . 562 

PRIVATE WAY 568 

PrixtieB, 
Who are, and how bound,' 81, 419. 
Privity of contract, 522. 
PrieiUge, 
From arrest, 44, 81. Of professional 
communications to attorney, 74. In 



PAOB. 

judicial proceedings, 642; legislative, 
646. Communications, between hus- 
band and wife, 887, 761. Privilege of 
juror, 426 ; of witness, 408. 
PROBATE COURT 568 

I. JURISDIOIUON AND AUTHORITY . . 564 

1. Generally — special cases . 564 

2. To correct its decrees . . 565 
8. Oonclusif>eness of decrees . 565 

II. Settlement of estates .... 566 

1. By the heirs 566 

2. By regular administration 567 
(a.) Commissioners of claims- 
Proceedings arid effect . 567 

{b.) Ancillary administration 568 
Ic) Sale of real estate . . . 569 
(d.) AssignmcTit to widow . . 569 
(e.) Division and distribution 570 
^ III. Probate Bonds ; Embezzlement 572 

PRO( E8S 672 

I. Form 572 

1. Signing of writ .... 572 

2. Minute of recognizance . 572 

8. Direction 578 

4. AuthoriMoHon .... 578 

TI. Service 574 

1. Extent and limitations of 

authority to make service 574 

2. Mode ofsercice .... 574 
8. Betum 575 

III. JlIHTIKICATION rNDEB PROCESS . . 575 

IV. Procehh against the body, ui»on 

AFFIDAVIT 576 

Propagation society. 
Grant to, 849. Statute of limitations 
against, 448. 
PROPRIETARY DIVISION .... 577 

PROPRIETORS 578 

Protection, 

Writ of, 44. 
Public policy. 
As affecting contracts, 168, 409, 412,519, 
520, 658. Wager. 
PulfHc square, or common. 

Distinguished from highway, 227. 
Public use. 
Taking for, 147, 188, 579, 588, 626. 
Sequestered to, 850, 441. Compensa- 
tion, 122, 868, 584. 
Puffing. 
On sales, 382. 



Q. 



Questions of law and fact. 
As between court and jury, generally, 
701,284; in criminal prosecutions, 427. 
As to directness of damage, 228 : suf- 
ficiency of highway, 871 ; negligence, 



479, 594, 668 ; probable cause, 451 ; 
nuisance, 487 ; possession, 545; aban- 
donment of possession, 542; use of 
rawhide by schoolmaster, 684. 
QUO WARRANTO 578 



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TABLE OF CONTENTS. 



R. 



PAGE. 

RAILROAD COMPANY 579 

1. General PowERHFNDER CHARTER. 579 
II. Stock AND 8rB8CRiPTioN8 . . . 580 , 

III. OFPIOEBrt, AGENTS AND 8ERVANTB. 581 

IV. Mortgages and leases . . . 582 
V. Taking lands and materials, { 

AND RIGHT IN LANDS TAKEN . . 583 

VI. Construction of road . . . . 586 
VII. Rights, duties and liabilities 

IN management of road . . 589 

1. A» carriers 589 

2. For negligence 591 

VIII. Suits by and against .... 594 

Ram, See Animals. 
Ratification. 
Of act of agent, 19 ; insurance agent, 898. 
Of an appeal, 36 ; of an assignment, 
50 ; note, 95 ; payment, 523 ; mortgage, 
582 ; Sunday contract, 659. By cor- 
poration, 188 ; town, 682. 

REAL PROPERTY 594 

Sale of real estate, 625. 
Receipts, 
Effect of, 301 : for property attached, 68. 

RECOGNIZANCE 596 

I. In GENERAL 596 

II. On APPEAL from A JUSTICE . . . 597 

III. On petition : review ; error . . 598 

Recognizance in audita querela, 79 ; bas- 
tardy prosecution, 91. Of sheriff, 639. 
Recommendation. 

For credit, 332. 
RECORD 5991 

Of deed as notice, 230 ; of levy of execu- | 

tion, 317. ' 

Recoupment. \ 

Of damages, 179, 618. I 



PAGE. 

REFERENCE 600 

I. Under rule from the county 

COURT 600 

II. Under rule from a justice . . 602 
III. Under rule from probate court. 602 

RELATION 603 

RELATIONSHIP 603 

RELEASE 603 

REPLEVIN 603 

I. To TRY THE RIGHT OF PROPERTY . 603 
II. Of GOODS ATTACHED 604 

III. Of beasts impounded .... 606 

IV. Pro<'edure 605 

Of intoxicating liquors, 407. 

Resdsmon, 
Of contract, 165 : of sale, 334, 613, 677 ; 
of vote by town, 648. 
Reservation, 

In deed, or grant, 145, 850, 748. 
Retraxit. 
Effect as a judgment, 416. 

REVIEW 606 

Of judgments, &c., on appeal, 32; of 
awards, 43 ; findings of fact, 120, 261 ; 
matters of discretion, 28, 38, 77, 127, 
139, 262, 263, 548, 602. Ont writ of 
error and exceptions, 260, 809. By 
certiorari, 127 : chancer^', 139. 
RetocaUon. 
Of authority, 20, 80; submission, 89; in- 
denture of apprenticeship, 88 ; license, 
440. 
Reward offered. 
Action, for, 175 ; by sheriff, 640. 

RULES OF COURT 607 

Delivery of specific things under rule, 
678. 



S, 



SALES 608 

A. SALE OF PERSONAL CHATTELS. 608 
I.. The contract 608 

1. Generally 608 

2. Executory ; future delivery . 609 

3. Sale executed so a* to pass 

title; delivery ; acceptance , 610 

4. Rescission; acceptance as a 

waiver of objections , . . 613 

5. Stoppage in transitu , , .615 
II. Warranties 615 

1. What constitutes a warranty 
— implied; express ; particu- 
lar warranties .615 



^KlX^^—ConUnw^. 

2. Effect of breach, and remedy 617 

III. Validity of sale as against 

CREDITORS 618 

IV. Conditional SALE 628 

V. Official sales 625 

B. Sale of real estate 625 

SCHOOLS 626 

I. Constitutional law 626 

II. School Districts 626 

1. Organigation 626 

2. Evidence of organimtion , , 627 
8. Po^t^ers of district .... 628 
4. Officers ; powers and duties , 629 



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PAO«. 

SCHOOLS— ConUnued. 

5. Meetings 629 

III. Taxation 680 

IV. ACTIONB AGAINST SCHOOL DISTRICT. 682 

V. Teachers 632 

1. Certificate and school register. 682 

2. Powers^ duties^ wages, dtc . 634 
SCraE FACIAS 685 

To vacate charter, 190, 729. 
SEAL 686 

Sealing of deed, 228; by corporation, 
187. 
Search i^arrant. 

Under liquor act, 406. For stolen goods, 
698, 695. 
Services. 

Of laborers, 168. 
SET-OFF 686 

I. At law 686 

1. Mutuality of the respective de- 

mands 686 

2. Nature of the demands plead- 

able 687 

3. Declaration on book account 

inset-off 637 

4. Pleadings and practice . . 638 

II. In chancery 688 

Shelley's ease. 

Rule in, 264. 

SHERIFF 639 

I. In general ... ^ ... . 639 
II. Relations of sheriff and deputy 

SHERIFF 640 

Signing, 
Of note, 92 ; by writing name on back of, 
93 ; of contract, 148 ; of will, 748 ; of 
memorandum under Stat. Frauds, 342 : 
of deed by corporation, 187. Mode of, 
as evidence of relations of signers, 554. 
Averment in pleading, 736. 
Situs of property. 



PAGE. 

As affecting action, 10 ; administration, 
321 ; taxation, 660. 
SLANDER 642 

I. Oral 642 

II. Written, or libel 646 

SLAVE 647 

SMALL-POX 647 

SOLDIER'S BOUNTY 647 

Specification, 

In liquor prosecutions, 405; in civil suit, 

548. 
SPECIFIC PERFORMANCE .... 653 
STATUTE 653 

I. Enactment 653 

II. CoNfiTITUTIONALITY AND VALIDITY. 654 

III. ('ONSTRirCTION, OPERATION AND EF- 

FECT 655 

IV. Repeal, and effect thereof . . 657 
See Action on Statute. 

Stock in corporation. 
In general, 182, 580. Sale of, 340. Stock- 
jobbing, 740. 
Stoppage in transitu. 

When authorized, 615. 
Subrogation. 
As to incumbrancers, 468 ; sureties, 562. 
officer in respect to process, 489, 
640. 

SUBSCRIPTION 658 

Sui4^'de, 
As affecting life insurance, 396, 399. 

SUNDAY 659 

Notice given on, 717. 
Supersedeas. 

On audita querela, 79 ; writ of error, 360. 
Surety. 
See Principal and Surety. Relief of 
surety in equity, 128, 558, 561. Subro- 
gation, 562. 
Suivoival, 
Of right of action, 5, 16. 



T. 



TAXES 

I. Power to tax ; Nature of tax . 
Taxable persons and property. 
Voting and assessing taxes . . 
Collecting 

1. The rate bill and warrant 

2. Powers and duties of collector. 

3. Justification by collector , . 

4. Collector's liability . . . . 
Remedies for wrongful taxa- 
tion 

1. Against the town .... 

2. Against selectmen^ and listers. 



n. 

III. 
IV. 



V. 



6601 

660 

661 

662 

663 

663 

664 

665 

665 



66'; 



T A X P:S— Continued, 
VI. Sale of lands for taxes; 
titles 



1. 



668 
668 
668 



670 



General rules . . 

Bate bill and warrant 

Advertisement ; 
record; cerUficaU . . . 

Sale ; return ; record . . . 

Other requirements ; — ho7idj 
oath, dr. 671 

The purchaser— right acquir- 
ed, iS^c 672 

See City of Burlington. 



3. 

4. 
5. 

7. 



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PAGE. 

TelsgrofM, 
As evidence, 292. 

TENANCY IN COMMON 672 

I In lands 672 

1. CreaUan by deed ... 672 

2. Rights and remedies of ten- 

ants <u to third persons . . 672 
8. Rights and remedies betieeen 

themselves 678 

II. In chattku* 675 

Jurisdiction in equity, 128. 

TENDER 676 

Of perfonnance of condition, 110, 148; 
of sum due on mortgage, 472. 

TERMS OF COURT . 679 

THREATS 679 

TIME 679 

Statement of, in pleading, 214, 217, 786. 

TOWNS 680 

I. Obganization 680 

II. Powers and limitations ; Liabili- 
ties 680 

III. Town meetings 682 

IV. Town officers 688 

V. Dividing and annexing towns . 685 

Town order, 95, 717. 
Transit, 
End of,as to carrier, 128,590; as to stop, 
page in transitu, 615. 

TREES 686 

Right in Ijee-tree, 691. 

TRESPASS 686 

I. In general 686 

1. Trespass ab initio .... 687 

2. Pleadings and evidence . . 688 

II. To the person fl 

1. Action anddefense .... 6 

2. Pleadings and evidence . . 690 



PAGE. 

TRESPASS— C'onfowti^jrf. 

III. To PERSONAL PROPERTY . . . .691 

1. Action and defense . . . 691 

2. Pleadings and evidence . . 692 

IV. To REAL PROPERTY 692 

1. For what acU 692 

2. Plaintiffs title and posses. 

sion 698 

8. Ple4Mdings and evidence . . 694 
TRIAL OF CIVIL ACTIONS .... 695 

I. General rfles 696 

II. The issue ; Evidenoe as related 

thereix> 697 

III. Reception of evidence . . . 698 

IV. What questions are for the 

COURT, AND WHAT FOR THE JURY 701 

V. Requests and charge . . . 708 

VI. The verdict 706 

VII. Assessment of damages . . . 707 

TROVER 707 

I. For WHAT the action lies . . 707 
II. The plaintiff's title .... 708 

III. What is a ovinaersion .... 708 

IV. Defense 710 

TRUSTEE PROCESS 710 

I. In what cases the process lies, 

AND WHAT MAY BE REACHED BY IT 710 

II. Procedure 719 

TRUSTS 728 

I. How CREATED, EVIDENCED, AND 

LIMITED 724 

II. The trustee 725 

1. His rights at law , . . .725 

2. Effect of his conveyance . 726 

III. Liability of trust funds to 

CREDITORS 726 

IV. Accountability of trustee . . 727 
TURNPIKE AND PLANK ROADS . . 728 



U. 



UNITED STATES 780 

I. Courts 780 

II. Customs laws 780 

III. Military matters 731 

IV. Internal revenue laws. . . .781 



UNIVERSITY OF VERMONT ... 782 
Use and occupatioti. 

Action for, 56. 
USURY 782 



V. 



Value. 
Wlio is bona fide liolder of note, Ac., for, 
100-102; purchaser, 622. 

VARIANCE 786 

I. What is, and instances . . .786 
II. How TAKEN advantage OF . . . 789 
Vendor^s lien. 
For unpaid purcliase money, 626. In- 
fant, 26. 



Venue. 
Of suit, 4; bastardy prosecution, 90; 
trustee process, 719. Change of, 204 ; 
waiver of, 215. 
Verdict. 
In civil cases, 706 ; criminal, 220. Amend- 
ment of, 29. 

VILLAGE 789 

VOTES AND VOTING ...... 789 



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w. 



Waiter, 
Of irregularity of process, 434; venue, 
215 ; continuance, 4 ; matter in abate- 
ment, 532 ; erroneous amendment, 29 ; 
of rules of evidence, 801, 848, 698, 700 ; 
error in execution, 818 ; form of action 
by reference, 600 ; of demand in ac- 
count, 12; of statute of limitations before 
auditor, 122; of demand and notice, 
104, 107 ; of defect of parties, <&c. , in 
chancery, 188, 188; of tort, 89, 52, 
116 ; of performance of condition, 148, 
140, 180; of forfeiture, 169, 486; of 
defect of goods by acceptance, 614; 
of jointure, 262; of irregularity by 
appeal, 86. 
WAGER 740 

Warnings and meetings. 
Of city, 140; corporation, 185; school 
district, 627, 629, 630; of town, 682. 



PAQB. 

Warranty, 
On transfer of note, 94, 850; sale of 
goods, 615, 181. Covenants of, in con- 
veyances, 198. 

WASTE 740 

Waste from mills, 742. 
WATER COURSE, AND WATER 

RIGHTS 740 

Stream as a boundary, 289, 742. Duty 
of town in respect to, 866 ; of railroad 
company, 586. 
WiUful and mcUimotcs. 
Certificate of, 84, 262, 811. 

WILLS 747 

I. Power to make a will .... 747 
II. Execution; revocation . . . 748 

III. Probate of wills— proof ; im- 

peachment 749 

IV. Validity; CONSTRUCTION; effect 751 



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VERMONT DIGEST. 



A. 



ACCORD AND SATISFACTION. 



1. Accord. After a simple contract is bro- 
ken and damafi^e thereby has accrued, it cannot ' 
be discharged l)y parol without satisfaction or 
some consideration, though it may be before. 
But if there be a new a^eement upon good con- 
sideration, which covers all claim imder the first, 
and such new agreement be performed, it is a 
satisfaction and a defense, though the first was 
written and the last verbal. Cutler v. Smith, 43! 
Vt. 577. 

2. An admission, with or without writing, ; 
given voluntarily and without consideration, 
that the party is perfectly satisfied and shall 
make no claim, does not amount to an accord 
and satisfaction. French v. Jiapmand, 39 Vt. 
623. 

3. C purchased the defendant's goods and, 
in par{ consideration thereof, agreed to pay the 
defendant's debt to the plaintiff. C thereupon 
wrote the plaintiff that her husband proposed to 
give his note at six ntionths for said debt, and 
the plaintiff replied, ac4:epting the proposition. 
The note was never given, but C made remit- 
tances to the plaintiff from time to time to ap- 
ply on the debt. Held^ a mere accord, and that 
the defendant was not thereby discharged from 
the balance of the debt. • Rising v. CwnvmngSy 
47 Vt. 345. 

4. It is no defense to an action against a 
sheriff for neglect to levy and return an execu- 
tion, that, after the sheriff had become liable, it 
was agreed between the plaintiff and the execu- 
tion debtor that the balance due on the execu 
tion should be charged to the debtor on the 
plaintiffs books, and be adjusted with their 
other deal, and that this should be in discharge 
of all other liabilities and remedies, without 
proof that such balance had been actually paid 
or so adjusted — this being but an executory 
agreement, and without consideration. Nye v. 
KeOara, 19 Vt. 548. 



5. The defendants, A and S, contracted with 
the plaintiff and several others jointly interested 
with him in building certain masonry, to quarry 
and furnish for them the necessary stone ; and 
at the same time the plaintiff and B, his then 
partner in th^ selling of goods, since deceased, 
and an associate in the masonrj' job, agreed 
with the defendants that the account which 
had l)efore accrued against A, and whatever 
account should thereafter accrue against A, or 
against both defendants, for goods from the 
store, should apply on the stone contract, and 
be paid for in stone to l>e furnished under it. 
The defendants entered upon the performance 
of the stone contract, but failed to complete 
it, without fault on their part, but in con- 
sequence of a breach of it by the other par- 
ties. Held, that the plaintiff could not recover 
the account for goods had by A, or by both 
defendants, upon the faith of said contract, after 
the making of it -, but that he might recover for 
the account which had accrued before— that, as 
to this, the agreement was only an accord with- 
out satisfaction. Qkason v. Allen, 27 Vt. 364. 

6. — and satisfactioii. Where the plain- 
tiff had a small valid claim against the defend- 
ant, but told the defendant he would *'give it 
in," to satisfy a claim which the defendant 
made on him, and neither party made any 
charge or claim against the other for some years, 
nor until after a controversy had arisen be- 
tween them, this was held to be an accord and 
satisfaction of the plaintiff's claim, although he 
was under no legal or moral obligation in fact 
to pay the defendant's claim. Abbott v. Wil- 
mot, 22 Vt. 437. 

7. —by new agreement performed. 
Where the agreement was, that if the defendant 
would do a certain service and other things, the 
plaintiff would deliver up to the defendant, to 
be satisfied, a ceftain judgment and execution 
thereon which the plaintiff had against the de- 
fendant and another, and the defendant fully 



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ACCORD AND SATISFACTION. 



performed the agreement on his part, — Held, 
that the agreement performed became an accord 
executed and accepted in satisfaction of the 
judgment, and a bar to an action thereon. 
Cobb V. Cmpdery, 40 Vt. 35. 

8. —by substituted security. An agree- 
ment upon sufficient consideration, fully execu- 
ted, and understood as a full satisfaction and 
settlement of a pre-existing contract or account, 
is a good accord and satisfaction and settlement, 
whether the new contract be ever paid, or not. 
Babcock v. HawkiTM, 23 Vt. 561. Flagg v. 
Mann, 30 Vt. 573. C^M v. Cowd^ery. 

9. There is no want of considerati^jn, in any 
such case, where one contract is su1>stituted for 
another. lb. 

10. The accord is sufficiently executed, 
when all is done which the party agrees to 
accept in satisfaction, in the present tense, of 
the pre-existing obligation. lb. 

11. In every case of an acconi and salisfac- 
f action by the substitution of one seciu-ity, or 
contract, for another, whether of the same or a 
higher grade, the action, in case of failure to 
perform, must be upon the substituted contract. 
Bahcotk V. Hmtkins. Bryant v. GaU, 5 Vt. 
416. 

12. Account stated. An account stated is 
no bar to a recovery upon the original account, 
whether for money, or lalnir, or other thing, and 
whether payable in specific articles, or not. 
Croiui V. Moore, 23 Vt. 482. 

13. Statute of frauds. Held, tliat an agree 
ment by parol between the plaintiff, the defend- 
ant and C, that will make and the plaintiff 
will receive payment of the defendant's debt to 
the plaintiff in certain bonds, docs not, of itself, 
amount to a substitution of one obligation for 
the other, nor to an accord and satisfaction ; and 
although C may remain willing to pay the bonds, 
yet, not being paid, the defendant remains liable 
upon his original indebtedness. BucJianan v. 
Paddlefard, 43 Vt. 64. 

14. Waiver of a mere naked promise to pay 
the debt of another, which promise is also with- 
in the statute of frauds, does not discharge the 
original debtor, — there being no executed sub- 
stitution. Rmng v. CumnUngs, 47 Vt. 346, 

15. Oonditional agreement. The plaintiff 
agreed to take a certain sum in compromise of 
a claim for breach of contract, if the defendant 
would pay it without suit or further trouble, 
and the defendant agreed to pay it. The de- 
fendant afterwards denied the agreement and 
refused to pay. Held, that here was no such 
settlement as prevented an action upon the 
original contract. Piper v. Kingsbury, 48 Vt. 
480. 

16. Agreement revoked. An agreement 
to take back in satisfaction^of the trespass, 
property wrongfully taken, may be revoked be 
fore delivery, and in such case the delivery 



wQuld only go in mitigation of damages. Smith 
V. McCall, 48 Vt. 422. 

17. Tender with condition. To consti- 
tute an accord and satisfaction, where money is 
offered and received upon a claim, it is neces- 
sary that the money should be offered in satis- 
faction of the claim, and the offer be accom- 
panied with such acts and declarations as 
amoimt to a condition, that if the money is 
accepted it is accepted in satisfaction ; and 
such that the party to whom it is offered is 
bound to understand therefrom, that if he takes 
it, he takes it subject to that condition. Pier- 
point, J., in Preston v. Grant, 34 Vt. 203; 
Brigliam v. Dana, 29 Vt. 1. 

18. If money is tendered *'for all that is 
due," or "for what the defendant owes the 
plaintiff," and it is taken, it must always be a 
Huestion of fact, whether it was, by way of 
compromise, received in full satisfaction, though 
the plaintiff on trial should establish his claim 
for a greater sum. Bennett, J., in Miller v. 
Hold^n, 18 Vt. 340. 

19. The defendant offered the plaintiff 
money, saying he tendere<i it for what he owed 
the plaintiff. The plaintiff offered to receive it 
in part payment. The defendant said he would 
not have it so. The witness to the tender then 
suggested, that it would make no difference if 
the damages and costs on trial should prove to 
-Ihj more than the sum tendered, and thereupon 
the plaintiff received the money. The autfitor 
reported that there was a larger sum due the 
plaintiff. Held, that the plaintiff could recover 
the sum due above the tender— that the minds 
of the parties did not meet in an agreement that 
the sum tendered should be received in full. 
lb. 337. 

20 After suit commenced, th6 defendant 
tendered the plaintiff a sum of money "in full 
of all his legal claims and for costs of suit." 
The plaintiff said the tender was not enough, 
but that he would take it and give credit for it, 
and did so. Nothing more was said. Held, 
not a bar to the plaintiff's recovery of the bal- 
ance due. (^>wa!r«— Is it not to be inferred, 
that. the defendant assented that the plaintiff 
might receive the money, giving credit for it. 
KeUogg, J.) Gassett v. Andaver, 21 Vt. 842. 

21. Wliere the defendant, upon an account 
presented to the plaintiff, claimed a certain sum 
as the balance of book accounts between them, 
and the plaintiff, after suit brought against him 
therefor, tendered to the defendant that sum 
"for his debt," and a certain sum for costs, 
which the defendant accepted; — Held, that this 
was conclusive upon the parties as the true bal- 
ance, so that the plaintiff could not thereafter 
recover for an item of his account not embraced 
in such balance, which, before such tender was 
made, was understood to be and was matter of 
dispute between the parties, and was not re- 



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ACCORD >ND SATISFACTION.— ACTION, I. 



served by the plaintiff when he made such 
tender. I>raper v. Pierce, 29 Vt. 250. 

22. Where a party makes an offer of a cer- 
tain sum to settle a claim, where the sum in 
controversy is open and unliquidated, and 
attaches to his offer a condition that the same, 
if taken at all, must be received in full, or in 
satisfaction of the claim in dispute, if the other 
party receive the money, he takes it clogged 
with the condition which the party offering has 
attached to his offer, and is bound to its fulfill- 
ment This will operate as a full accord and 
satisfaction, though the party receiving the 
money declares at the time, that he will not 
receive the money in that way, but only to 
account for upon the claim on which it is offered, 
— the party offering the money not waiving the 
condition. AfeDaniels v. Lapham^ 21 Vt. 222. 
MeGltrnn v. BilUngs, 16 Vt. 329. Cole v. 
Chumplain Trarutp. Co., 26 Vt. 87. See Ponter 
V. Ihrett, 39 Vt. 51. Tmpsles v. Healy, lb. 522. 

23. During a term of court in which this 
suit was then pending, the defendant tendered 
to the plaintiff ^56, saying—*'! tender fifty-five 
dollars in full for the debt and costs of suit, 
and asked the plaintiff if he would receive the 
money. The plaintiff replied— "Yes, and 
twenty dollars more." He took a Ad used the 
money so tendered, claiming more to be due 
him. Held, that the plaintiff's claim was there 
by cancelled, notwithstanding his declaration 
that he wanted or claimed more. Towslee v. 
Bealy. 

24. When a tender or offer is thus made, 
the party to whom it is made has no alternative 
but to refuse it, or accept it on such condition. 
If he takes it, his claim is cancelled, and no 
protest, declaration or denial of his, so long as 
the condition is insisted on, can vary the 
result. Pierpoint, J., in Pretion v. Grant, 34 
Vt. 208. 

25. This rule is the same in equity, as at 
law. MeDanieU v. Bank of Rutland, 29 Vt. 
280. 

26. The law is well settled in this State, 
that if there is a claim in jdispute between par- 
ties, whether in suit or not, and one offers to 
the other a specific sum in full settlement or 
satisfaction of such claim, and the other receives 
the sum, though he protest never so stoutly 
that he receives it only in part satisfaction, such 
receipt of the money is an accord and satisfac- 
tion of the claim. Bromley v. School District, 
47 Vt. 881. 



V. 


Abatement by Pendency of For- 




MER Suit. 


VI. 


Survival. 


VII. 


Parties. 




1. PlainUffs. 




2. Defendants. 


vin. 


When not Maintainable. 



ACTION. 

I. When Maintainable. 

II. Commencement. 

lU. Venue. 

rV. Discontinuanob. 



I. When Maintainable. 

1. Instances. Where the guardian of a 
minor paid to the purchaser of the minor's land, 
at a tax sale under an act of Congress, a sum 
of money exceeding the tax and interest for a 
conveyance to the minor, in consequence of 
the guardian's mistake or ignorance of the 
provision in the law which allowed the minor 
to redeem within two years after arriving at 
age; — Held, that the guardian could recover 
the sum so paid, as money paid by mistake, 
notwithstanding the maxim: Ignorantia juris 
non eateusat. Brown v. Ba/wyer, 1 Ajk. 130. 

2. In consideration that the plaintiff, a cred- 
itor of C, would release an attachment made, 
the defendant, also a creditor of C, promised 
the plaintiff not to sue C for one year. Held, 
that for a breach of this agreement the plain- 
tiff could recover such damages as he had sus- 
tained thereby. Boardman v. Wood, 3 Vt. 670. 

3. The general owner of property, attached 
by his creditors, can maintain a suit against the 
attaching oflScer for damage done to it through 
his negligence, although that suit is still pend- 
ing and the attachment is still in force. The 
rights of the officer and of the creditor can be 
protected by proper orders as to the execution, 
&c. Briggsv. Taylor, 35 Vt. 67. 

4. Ooncnrrent actions. The plaintiff 
received of the defendant a good note against a 
third person, as a pledge or collateral security 
for a debt due the plaintiff, and of larger amount 
than such debt, and sued the note and attached 
personal property. Held, that this was no bar 
or suspension of the plaintiff's right of action 
upon the original demand, although he did not 
offer to return the note pledged. Chapman v. 
CUmgh, fi Vt. 128, and see Bank of Rutland v. 
Woodruff, 34 Vt. 89. 

5. Snecessiye. The defendant promised the 
plaintiff to pay and save him harmless from 
three several notes of the plaintiff outstanding, 
and to fall due in three successive years. After 
all the notes had become due, the plaintiff was 
sued upon the first and compelled to pay it, 
whereupon he sued the defendant for indemnity 
as to that. The same thing afterwards occurred 
as to the second note, whereupon the plaintiff 
brought a second suit for indemnity as to that. 
Held, that successive actions lay upon the con- 
tract, and that the judgment in the first was 
not a bar to the second. Hotford v. Foote^ 8 
Vt. 891. 



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ACTION, II, III, IV. 



6. When part of the whole sum due upon a 
sealed agreement was made payable in cash at 
stated times, and the balance, a fifth part of 
the whole, in goods on demand: — Ueld^ that 
covenant would lie for the cash instalments be- 
fore demand of the goods. Stevens v. Cham- 
herUn, 1 Vt. 25. 

7. (^ratoitoiis imdertaking. A consider- 
ation is necessary in order to make a mere re- 
fusal to execute a trust a ground of action ; but 
if one enter upon a mere gratuitous undertak- 
ing, and then neglect it, he is liable as for a 
fraud, or gross neglect. Hyde v. Moffat ^ 16 
Vt. 271. 

n. Commencement. 

8. It is no objection to a suit that the plain- 
tiflTs right of action was not perfected before 
the issuing of the writ, if it became so before 
service. In such case, the service is regarded 
as the commencement of the suit. Hall v. 
Peek, 10 Vt. 474. 22 Vt. 254. McDanieU v. 
Reed, 17 Vt. 674. Hawley v. Soper, 18 Vt. 
320. 

9. To save the statute of limitations the 
teking out of the writ, if duly prosecuted,* is 
regarded as the commencement of the action. 
Allen V. Mann, 1 D. Chip. 94. Day v. Lamb, 
7 Vt. 426. 

10. The presentation of a claim against a 
deceased person's estate to the commissioners 
for adjudication is the commencement of a 
suit, or action, and all future proceedings, on 
regular appeal, or on appeal allowed on peti- 
tion to the supreme court, are only a continua- 
tion of the original proceeding, and it remains 
the same suit or action pending. Caidenpood 
V. Caidencood, 38 Vt. 171. KimhaU v. Haxter, 
27 Vt. 628. Pierce v. Paine, 32 Vt. 229, Ora- 
ham V. Chandler, 88 Vt. 559. 

III. Venue. 



11. The common law, as te certain actions 
being loeai, has been superseded by our statute 
regulating the places in which actions shall be 
brought ; and none are local unless made so by 
statute. Umveratty of Vt v. Joelyn, 21 Vt. 
62. Hunt V. Pownal, 9 Vt. 411. June v. 
Canant, 17 Vt. 666. 

12. Under the statute requiring scire facias 
against sheriffs bail to be brought in the county 
where the default, or neglect sued for, happens; 
—Held, that the action was well brought in 
Windsor county by the State Treasurer, resid- 
ing and having his office there, for the default 
of the sheriff of Caledonia county in not serving 
and returning certain extents for State taxes. 
State Treasurer v. Kelsey, 4 Vt. 871. 

13. An action of trespass on the freehold 
before a justice must, like other actions, be 



brought in the town in which one of the parties 
resides. June v. Conant, 17 Vt. 656. 

14. The act of Oct. 29, 1811 (C. S. c. 29, 
s. 36 ; G. 8. c. 31, s. 33), does not apply to a 
single act of selling on a particular occasion, by 
one who did not use or follow the trade of 
vending goods, &c., or, if he did, was only 
transiently in the town in which the sale was 
made, and had no established business or place 
of business there. Wainwri^ht v. Berry, 3 Vt. 
423. SUnu v. Hazeh, 25 Vt. 178. 

16. But it does apply to sales made by a 
peddler in the usual course of his business, 
while peddling in a town other than his own 
or the purchaser's residence. Richardson v. 
Stecens, 41 Vt. 120. 

IV. DiSCONTlNlTANCK. 

16. Causes. Thenon-attendance of the jus- 
tice within the two hours given by statute for 
appearance after the hour set for trial, operates 
as a discontinuance. Rraipn v. Staey^ 9 Vt. 
118. Phelps v. Birge, 11 Vt. 161. Crattford 
V. Cheney, 12 Vt. 567. 

17. Bo also the absence of the parties. 
Pike V. Hill, 15 Vt. 183. 

18. So ttlso an unauthorized continuance 
with appearance of the defendant. Paddle ford 
V. Bancroft, 22 Vt. 529. See Aldrich v. lionett, 
33 Vt. 202. 

19. It is not the death of a party, but the 
appointment of commissioners for the adjust- 
ment of claims, which works a discontinuance 
of a pending suit under G. S.. c. 53, s. 16. 
MiUer V. WiWams, 30 Vt. 886. 

20. The non-entry of an appeal operates as 
a discontinuance of the action. Bates v. Kim- 
ball, 2 D. Chip. 83. TArce v. Estes, 6 Vt. 286. Pro- 
bale CouH v. Gleed. 35 Vt. 24. (Changed by 
statute, as to justice's judgments.) 

21. After entry. After the entry of a suit 
upon the docket, it is under the control of the 
court until the actual entry of discontinuance 
by direction of the plaintiff. Conn. <ft Pass. 
R. R. Co. V. Newell, 31 Vt. 364. 

I. Waiver of irregularity. A subse- 
quent assent to an irregular continuance of a 
suit is sufficient to prevent a discontinuance. 
CoUins V. MerHam, 31 Vt. 622. 

23. In a suit returnable before a justice, the 
plaintiff died before the return day. The case 
was twice continued because of the inability of 
the justice to attend, and three times on the 
request of the defendant, when the administra- 
tor entered to prosecute— it not appearing but 
that this was on the next court day after his 
appointment. LTp to this time the plaintiffs 
death had not been suggested upon the record. 
Held, that the action was not discontinued. 
Babcoek v. Cuker, 46 Vt. 715. 

24. Where a justice suit is discontinued by 



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ACTION, V, VI. 



the non-attendance of the justice with the writ 
at the time set for trial, the lost jurisdiction can 
be regained only by some voluntary, positive, 
affirmative act of the defendant, evincing a will- 
ingness or consent that the court proceed to hear 
and determine the case notwithstanding the 
irregularity. Where such objection was duly 
raised and insisted upon, but overruled by the 
justice, and terms were imposed upon the plain- 
tiff, which the defendant took, and two trials 
were had : — Held, nevertheless, that the objec- 
tion was not waived. Pinney v. Petty, 47 Vt. 
616. 

25. Notice of discontiimaiice. After an 
action has been entered in court, and costs have 
been incurred by the defendant, a notice of dis- 
continuance given out of court cannot have the 
effect, without the consent of the other party, 
of at once discontinuing the suit;— not even 
where, also, a tender of the defendant's costs 
has been made, but not accepted. Jenney v. 
Qiynn, 12 Vt. 480. 81 Vt. 370. 

26. A suit commenced by defective process 
may be discontinued by a verbal notice, so as 
to allow the bringing of a new suit immediately 
for the same cause of action, without abatement ; 
and, in the absence of proof to the contrary, the 
discontinuance will be presumed to have been 
made on account of such defect. IliU v. Dun- 
lap, 15 Vt. 645. 

27. Notice of discontinuance need not be in 
writing to avoid the effect of a plea in abate- 
ment ; but must be in writing to deprive the 
defendant of his claim for costs. lb. BaUou v. 
BalUm, 26 Vt. 673. But see FuUam v. /«?<», 
37 Vt. 659, as to last point. 

V. Abatement by Pexdknoy of Former Suit. 

28. Both pending at the same time. 

The plaintiff had caused his writ to be served 
upon the defendant, but before the return day 
sued out another writ for the same cause of 
action, and gave it to an officer for service, who 
lodged a copy of it with a return of the< attach- 
ment of property thereon in the town clerk's 
office. The officer then delivered to the defend- 
ant a written notice from the plaintiff of the 
discontinuance of the first suit, and afterwards 
delivered him a copy of the second writ and 
attachment. — Ileldf^ that the second suit was 
not abated by the first, for that both were not 
pending at the same time— the first having been 
discontinued before any such service of the sec- 
ond writ as called upon the defendant to answer 
thereto. Whether th© plaintiff had good cause, 
or any cause, for discontinuing the first suit is 
not a material inquiry. Kirby v. Jackson, 42 
Vt. 552. 

29. A defective suit had been entered in 
court and the defect pleaded in abatement. The 



plaintiff thereupon gave the defendant a written 
notice of discontinuance, and immediately 
brought a second suit for the same cause of 
action and had his writ served, and afterwards, 
at the same term, had an entry of discontinu- 
ance of the first suit made upon the docket. 
—Held, that the second suit was not vexatious, 
and was not abated by the pendency of the first. 
Dmpner v. Garland, 21 Vt. 362. 

30. If two writs be sued out at the same 
time, the one first served abates the other ; but 
not e converso, Morton v. Webb, 7 Vt. 123. 

31. Identity of parties and cause of ac- 
tion. In order that the pendency of a former 
suit should abate a later one, it is essential, not 
only that the cause of action be the same in 
both suits, but that they be in favor of the same 
plaintiff. Held, that a pending suit in favor of 
the payee of a promissory note, brought before 
indorsement, did not abate a suit afterwards 
brought in favor of an indorsee of the same 
note. Thomas v. Freelo^e, 17 Vt. 138. 

32. The pendency of a former suit, for part 
only of the matters embraced in a second suit, 
will not abate the second suit, either in whole 
or in part. BalUm v. Ballou, 26 Vt. 673. 

33. Suit in another State. A suit will 
not abate by reason of the pendency of a pre- 
vious suit, l)etween the same parties for the same 
cause of action, in another State of the United 
States. McGilvra^ v. Anery, 80 Vt. 638. See 
SUmghUm v. Mott, 13 Vt. 176. 

34. —in e(inity. Tlie pendency of a prior 
suit in equity for the same matter cannot be 
pleaded in abatement of a suit at law ; the rem- 
edy is by injunction in chancery. Blanehard 
V. Stone, 16 Vt. 234. 

VI. Survival. 

35. Action for penalty. A prosecution 
gut tarn for usury abates by the death of the 
defendant ; and if he dies after verdict and dur- 
ing the pendency of a motion in arrest, the court 
will not thereafter render judgment nuTic pro 
tunc. Benmn v. Edgerton, Brayt. 21. 

36. Two joint creditors commence an action 
qui tarn to recover the penalty against fraudu- 
lent conveyances, and one dies. Held, that the 
action survives to the other. Wright v. Eldred, 
2 D. Chip. 87. 

37. Statute provision. Under C S., c. 
52, ss. 10-12, providing for the survival of 
actions **for damages done to real or personal 
estate," the action does not survive when the 
tortious act affects the estate only indirectly, — 
as in Barrett v. Copeland, 20 Vt. 244. Win^ 
hall V. Sawyer, 46 Vt. 466 ; but when it affects 
the estate directly, though it be not done to any 
specific property, the action survives ;— as in 
Dana v. Lull, 21 Vt. 383. Bellows v. Allen, 
22 Vt. 108. 



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ACTION, vn. 



38. An action in favor of a town to recover 
damages under G. S., c. 20, s. 81, for bringing 
a pauper into such town, does not survive 
against the defendant's estate. WinhaU v. Saw^ 
yer, 

39. At common law, an action in the name 
of husband and wife, for injuries to the wife, 
does not survive to the husband, nor to her 
administrator ; but by our statute such action 
survives to her administrator. Earl v. Tupper^ 
45 Vt. 275. 

40. An action to recover damages for an un- 
lawful arrest and imprisonment survives to the 
administrator of the party injured, as for a 
"bodily hurt or injury," under G. S. c. 52, s. 11. 
Whitcomb V. Cook, 38 Vt. 477. 

41. This statute makes all actions survive, 
when the cause of action was for a physical in- 
jury to the person caused in any unlawful 
manner. Poland, C. J., lb. 482. 

42. Under G. 8. c. 52, a wrongful act, 
neglect or default, causing death to another, 
affords two distinct causes of action ; one, by 
survivorship, in favor of the estate of the de- 
cedent to recover such damages as he sustained 
in his lifetime, which recovery becomes general 
assets (Sees. 10, 11, 12 and 13); the other for 
the pecimiary injury resulting from such death 
to the widow and next of kin, to be prosecuted 
in form by the administrator, but only as trustee 
for, their use. Needham v. Grand Trunk R. 
Co., 88 Vt. 294. 

VII. Parties. 



1. PlafnUfs. 

43. No snch person. That there is no such 
person in existence as the plaintiff, may be 
pleaded in abatement, or in bar, whether the 
action be professedly in the name of a corpora- 
tion, or of a natural person. Boston Type Foun- 
dry V. Spooner, 5 Vt. 98. 

44. A suit was brought in the name of 
"Gray, Drew & Co." The defendant pleaded 
in abatement that there was no such person in 
existence. Replication, that Gray, Drew & Co. 
were the plaintiffs, Dan Gray, John Drew and 
John Boardman. — Held, on demurrer, that Dan 
Gray, &c., were not and could not become par 
ties to the record, and the plea was held suffi 
cient ; — but hsld, also, that the defendant could 
take no judgment for costs against Dan Gray, 
&c. Gray v. Parker, 16 Vt. 652. 

45. Proprietors. The statute authorizing 
suits in the name of the "Proprietors" of towns, 
does not authorize a suit in the name of * 'Pro- 
prietors of the undivided land " of a certain 
tract in a particular town. Proprietors, dx., 
V. Bishop, 8 Vt. 92. 

46. The State. In the absence of legal 



common principles, be brought in the name of 
the State, when the legal interest is in the State, 
— as trespass qua. clau. for eqtry upon the 
State-house grounds and taking away the State's 
chattels. StaU v. Bradish, 34 Vt. 419. 

47. State treasurer. In an action of debt 
commenced before the passage of G. 8. c. 86, 
s. 16, upon the official bond of the State treas- 
urer executed to '^Benjamin W. Dean, Secretary 
of the State of Vermont, and to his successors 
in office in behalf of the State of Vermont ;"— 
Held, that such action could not be brought in 
the name of the State.— J^^^W, also, that such 
action must be brought in the name of the 
obligee named, or, if he was out of office, then 
in the name of his successor in that office, the 
power to sue being treated as incident to the 
office, on the principle that, pro tanto, the Sec- 
retary of State is indued with a corporate 
capacity. State v. Bates, 36 Vt. 387. 

48. Same person both plaintiff and de- 
fendant. An action at law cannot be sustain- 
ed, either upon common law principles, or under 
any statute of this State, when the same person 
is one of the plaintiffs and also one of the de- 
fendants. Green v. Chapman, 27 Vt. 236. 
Estes V. Whipple, 12 Vt. 373. 

49. Legal interest. The right of action to 
recover for property sold is in him who has the 
legal interest in the property, not in him who 
has the equitable interest only. HeaM v. War- 
ren, 22 Vt. 409. 

50. Instances. A purchased goods pro- 
fessedly for B, and took a bill of sale in the 
name of B, but in reality for himself, and paid 
for them himself. A afterwards sold the goods 
conditionally to C and procured C to give a 
receipt acknowledging that he had received the 
goods of B, and to remain B*s until paid for. 
This receipt A afterwards assigned to D. C 
sold the goods to F and F to the defendant. 
The goods not having been paid for— Held, 
that after demand and refusal to deliver them, 
trover lay in the name of B therefor. Xorrf v. 
Bishop, 18 Vt. 141. 

51. In a suit of A against B, the court im- 
posed terms upon A as a condition for a con- 
tinuance. A's solicitor thereupon promised B*s 
solicitor to pay the amercement, if he would in- 
form the court that the terms were complied 
with. He did so inform the court, and the 
entry was made on the docket, "terms com- 
plied with," and the cause was continued. In 
an action by B against the solicitor of A on 
such promise, — Held,(\),i\i9X the promise was on 
good consideration ; (2), Ihat it was not within 
the statute of frauds, for that the amercement 
created no debt against A ; (3), that the suit 
was well brought in the name of B, the party 
for whose benefit the promise wae made, Ijamp^ 



regulations .to thg contrary, a suit may, \xi^n\son v. Swift, 11 Vt. ?16, 



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ACTION, VII. 



52. The plaintiifs partner, H, purchased a 
horse of one K, with an agreement to let the 
plaintiff have the horse at the same price, if the 
plaintiff wished. The horse was put, kept and 
fed with other horses of the firm and used in 
the partnership business for eight or ten days, 
when the plaintiff, without ever having ex- 
pressed his intent to take the horse, exchanged 
him with the defendant for another horse and 
#50, boot money, to be paid. By a subsequent 
arrangement between the plaintiff and H, the 
second horse was senl to market and sold on 
joint account. Held^ that the property in the 
first horse became vested in the plaintiff, in- 
dividually, and that he could recover the boot 
money in his own name, in an action on l)ook. 
H€itcJi V. Foster, 27 Vt. 515. 

53. The plaintiff made a parol contract with 
the defendant, by which she agreed to give the 
defendant all her property, real and personal, 
and he agreed to support her through life and 
pay all her debts. At the time the contract 
was made, she stated that she had some money 
and notes which she wished to keep, so as not 
to be obliged to call upon him every time she 
needed small necessaries, but that she consider- 
ed the money and notes to be his just the same. 
To this he assented, and immediately took pos- 
session of all the property, except said money 
and notes which were rt^tained by her, and ful- 
filled his part of the contract by paying her 
debts and supporting her for nearly three years, 
when she left his house, refusing to live with 
him longer, leaving the money and notes in 
question locked up in her trunk in the room she 
had occupied in his house. The defendant 
shortly after broke open the room and trunk 
and took possession of the money and notes. 
In an action of trover therefor— i/eW, that even 
if the defendant should be regarded as the gen- 
eral owner of such money and notes, and not 
merely as having inchoate rights under a con- 
tract executory, the plaintiff had, under the con- 
tract, such powers, coupled with an interest, vjz., 
a right of possession and to expend the proper- 
ty for her necessities, as that she could main- 
tain the action. Lamb v. Clark, 80 Vt. 847. 

54. Joint interests. By contract between 
the plaintiffs, one furnished a boat and the other 
ran it for transportation of merchandise, they 
sharing equally the profit and loss of the busi- 
ness. Held^ that for a loss of the boat by the 
negligence of the defendant in towing it, a joint 
action lay for the value of the boat, it being in 
the joint use of the plaintiffs. White v. Bos- 
com, 28 Vt. 268. 

55. Held, that where two have a joint inter- 
est in the damages caused by the destruction 
of buildings by fire, they may maintain a joint 
action to recover therefor against the person 
by whose fault such destruction was caused, 
although the legal title to ^he buildings was in 



but one of the plaintiffs. Clea/celand v. Grand 
Trunk R, Co., 42 Vt. 449. 

56. Non-joinder. The non-joinder of one 
who ought to have been made a plaintiff may 
be pleaded in abatement, or may be taken ad- 
vantage of on trial. Hilliker v. Loop, 5 Vt. 
116. 

2. Defendants. 

57. Not ^participating. B hired a sloop 
on his own account and took on board others, 
some as working hands and others as passen- 
gers. Held, that none except B were answer- 
able for the act or neglect of B whereby the 
vessel was damaged. King v. Bevins, 1 D. 
Chip. 178. 

58. The defendant purchased land, then in 
the possession of a third person, who retained 
the exclusive possession, no rent being claimed 
or paid, and built a dam on the land which set 
back the water upon the plaintiff's land. This 
was done without the knowledge or consent of 
the defendant. Held, that the defendant was 
not liable therefor, not l)eing a privy to the 
wrong either in fact or in law. Pettibone v. 
BurUm, 20 Vt. 302. 

59. The defendant and one W jointly pur- 
chased a lot of land, with an arrangement 
between them that the defendant should have 
the land and W the cedar timber upon it. 
There was a dispute as to the true division line 
between this lot and the plaintiffs lot adjoining, 
and the defendant, having knowledge of it, sup- 
posed and claimed that a former lawsuit had 
settled the line against the plaintiff's claim, and 
so told W, who went on and cut the timber on 
the land between the two lines, which turned 
out to belong to the plaintiff. The defendant 
took no part, nor advised, aided or assisted W 
in cutting the timber, except that he let his 
hired man assist W and charged W theVefor. 
Held, that the defendant was not liable as a 
participator in the trespass of W. Langdon v. 
Bruce, 27 Vt. 667. 

60. The defendant, by invitation of A, rode 
with him' from Barton to Newport with the 
plaintiffs team, which A had hired to go 
only to Barton, and this was known to the de- 
fendant, but he exercised no control over the 
team. In an action of trespass, — Held, that 
the defendant was not liable. Hubbard v. 
Hunt, 41 Vt. 876. 

61. The assignor of a note not negotiable is 
not liable for the misuse of process in a suit on 
such note in his name, where he has no interest 
or participation in the suit, or the wrong com- 
plained of. Rosa V. Fuller 12 Vt. 265. 17 Vt. 
165. 

62. Otherwise where he does so participate. 
Tiehout V. CilUy, 3 Vt. 415. 

63. For the irregularity of an officer in exe- 



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ACTION, VII. 



cuting a valid process, or for any acts of his 
beyond the authority which the process con- 
fers, the party suing it out is not responsible, 
unless the ojflcer acts under his orders or direc- 
tion. Barnard v. Stevens, 2 Aik. 429. 

64. As a general rule, when an officer in the 
performance of an official service (as serving 
an attachment or execution) commits a tres- 
pass through a mistake of fact, and the party 
for whom he acts, knowing all the facts, takes 
the avails of the act of the officer, or counsels 
the very act which creates the liability of the 
officer, he is implicated to the same extent as 
the officer. But where he does not direct nor 
control the course of the officer, but requires 
him to proceed at his peril, and the officer makes 
a mistake of law in judging of his official duty, 
whereby he becomes a trespasser, even by rela- 
tion, the party is not affected by it, even when 
he receives the money which is the result of 
such irregularity, and although he was aware 
of the course pursued by the officer. This does 
not amount to a consent to nor adoption of the 
officer's course, and, without this, the party is 
not liable. Hyds v. Cooper, 26 Vt. 552. Abbott 
V. Kimball, 19 Vt. 551. 21 Vt. 152. 

65. The mere expression of an opinion by 
the creditor to an officer employed by him, 
that the course taken by the officer was legal, 
does not make him liable for such act of the 
officer, if it turn out to be illegal, although he 
take the benefit of the act. Hyde v. Cooper. 

66. A party who sues out a search warrant 
is not liable in trespass for the act of the officer 
who serves it, by entering the open door of the 
plaintiff's dwelling house and making search, 
doing no unnecessary damage, although the 
goods are not found ; and whether the party 
would, in like case, be liable if the officer, admit- 
tance being denied, had forcibly broken open 
the outer ^oov—qu/Bre. Clearly the officer 
would not, although the goods were not found. 
Chipman v. Bates, 15 Vt. 51. 

67. Not contracting. Where one requests 
a physician to render professional services for 
another for whom he is not legally bound to 
provide,— as, for his servant, or for his in 
sane brother, — and there is no express promise 
to pay, his liability to pay depends upon 
whether it may fairly be inferred from the 
evidence, that it was the intention of both 
parties that he would pay for the services. 
Clark V. Waterman, 7 Vt. 76. Smith v. Wat 
son, 14 Vt. 332. 28 Vt. 236. 

68. A engaged B to do certain freighting 
for him, and B engaged C to do it. A paid B 
therefor without knowing that it was done by 
C. It did not appear tliat C did the work on 
the credit of A. Held, tl\at A was not liable to 
C therefor. Tobias v. BUn, 21 Vt. 544. 

69. Joinder of defendants. A river was 
divided by an island, and different parties, hav- 



ing distinct interests, at different times built 
dams across the several channels. The plain- 
tiff brought a joint action against the two for 
setting back the water upon his land by means 
of the two dams, and verdict passed against 
one and in favor of the other. Held, no cause 
for setting aside the verdict. Wright v. Cooper, 
1 Tyl. 425. 

70. To warrant a judgment against two or 
more defendants, the liability must be joint ; 
and the recovery must be limited to the extent 
that the liability is joint as to all. Smith v. 
Kelhgg, 46 Vt. 560. 

71. In ^n action on the case against two, 
setting forth a joint contract to manufacture 
and adjust the machinery of a mill properly, 
but that they had spoiled the work in their 
attempt ;—//<'W, (1), that such action would 
lie; but (2), that as the liability grew out of a 
contract it must be proved as laid, viz., as a 
joint contract, —and, verdict being for one 
defendant, that the plaintiff could not take 
judgment against the other. Wright v. Ge^, 
6 Vt. 151. (Changed by G, 8. c. 30, s. 78.) 

72. In an action against two or more upon 
a joint contract, there can be but one judgment. 
If one suffer default, and the other stand trial, 
the judgment as to the first is suspended until 
the result of the trial is ascertained. If an 
appeal be taken, the judgment as to all the 
defendants is vacated, and the entire case is 
removed into the county court, with all the 
parties. B'letcher v. Blair, 20 Vt. 124. (Bince 
modified by statutes.) 

73. Authority of one defendant to act 
for another. In actions ^ contractu, one co- 
defendant may, in the absence of instructions 
to the contrary, employ counsel, enter appear- 
ance, agree to a continuance, plead and defend 
fully for all. ScMt v. Larkin, 13 Vt. 112. 18 
Vt. 218. This limited to a case where the 
other defendant has been duly served with pro- 
cess and is before the court. Whitney v. Silver, 
22 Vt: 634. 44 Vt. 551. 

74. Effect of non-joinder. The non-join- 
der of a joint promissor is only matter of abate- 
ment. Nash V. Skinner, 12 Vt. 219. Ives v. 
Hulet, lb, 314. 

75. In an action upon any written contract, 
whether of record or not, the non-joinder of a 
joint contractor as defendant can be taken 
advantage of only by plea in abatement, unless 
such omission appears upon the record,— that is, 
the very record of the very suit upon trial. 
McGreg&r v. Balch, 17 Vt. 562. 

76. Thus, in an action against two, declar- 
ing upon a joint recognizance of the two, an 
issue joined upon the plea of nul tiel rec&rd, the 
record produced showed that two others, the 
principals, were co-recognizors. Held, that the 
record supported the declaration ; that the non- 
joinder could be taken advantage of only by 



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ACTION, VIII. 



plea in abatement, inasmuch ae this did not 
appear in the declaration ; or, the defendant 
might have brought it into the record by crav- 
ing oyer of the recognizance and setting it out, 
and could then have taken advantage of the 
non-joinder by demurrer. lb. 

77. In actions upon joint recognizances, 
joint judgments and other matters of record, if 
it appears from the declaration, or other plead- 
ings of the plaintiff, that there is anotiier joint 
debtor who is not sued, the non-joinder may be 
taken advantage of by demurrer, or motion in 
arrest. The same is true of actions upon joint 
bonds, protidM it appears from the declara- 
tion or other pleadings of the plaintiff that the 
obligor, not joined, is hUU liting. But unless 
this does so appear, the non-joinder can be 
taken advantage of only by plea in abatement. 
Needham v. Henth, 17 Vt. 223. ('This, lappre- 
hend, is to be presumed, for at least seven 
years, unless the contrary appear." RedfieM, 
J., in McOrefffn- v. Balc^, 17 Vt. 567.) ^ 

78. Misjoinder. Scire facias against one 
of two joint recognizors and the administrators 
of the other. On demurrer, —held a misjoinder. 
State Treas. v. Friott, 24 Vt. 134. 

VIII. When not Maintainable. 

79. Oppression. The defendant made a 
settlement with the plaintiff, and received in 
satisfaction of a judgment against him a deed 
of ceVtain land, upon the plaintiff's paying in 
addition certain costs not taxable. Held, that 
the money so paid could not be recovered back 
as oppressively taken. Chiwe v. May, Brayt. 
25. 

80. Unavoidable accident. No action 
lies for an injury which is the result of unavoid- 
able accident, where there is no want of pru- 
dence or care on the part of the defendant- 
(applied to a case where the defendant with 
his sulky ran over the plaintiff in the highway). 
Vincent v. SUnehmir, 7 Vt. 62. 

81. Motive in the exercise of a legal 
right. One's motive can never alter the char- 
acter of his lawful act. Whatever a man has 
a legal right to do, he may do with impunity, 
regardless of his motive. Humphrey v. Dovg- 
loMs, 11 Vt. 22. 

82. The defendant finding the plaintiff's 
horses wrongfully trespassing upon the defend- 
ant's land [as where they escaped through a 
defect of a division fence which it was equally 
the duty of each party to repair] turned them 
into the highway, without notice to the plain- 
tiff, whereby the horses were lost : — Held,, that 
the defendant was not liable therefor ; that the 
act was lawful, and was not rendered unlawful 
because of any improper motives,— as malice. 
Humphrey v. ^Dotiglass, 10 Vt. 71. S. C. 11 Vt. 
22, and see Woodcock v. Bolster, 36 Vt. 632. 



83. An act legal in itself, violating no right, 
cannot be made actionable by reason of the 
motive which induced it. S. Hoyalton Bank 
V. Suffolk Bank, 27 Vt. 505. Chatfield v. Wil- 
son, 28 Vt. 49. 41 Vt. 845. 

84. The plaintiffs, a banking corporation, 
brought suit declaring that the defendants, 
maliciously, corruptly and wickedly intending 
to injure, break down and destroy the plain- 
tiffs, and bring their bills into discredit and 
prevent their circulation, had bought up, taken 
and kept out of circulation a large amount of 
such bills and notes, and refused to exchange 
them for other funds, but demanded and com- 
pelled the plaintiffs to pay the specie thereon, 
whereby the plaintiffs were injured, and de- 
prived of great profits, &c. Held, on demur- 
rer, that the declaration did not disclose any 
legal cause of action. S. RoyaiUm Bank v. 
Suffolk Bank. 

85. So where the defendant, by digging 
down near the margin of his own land, cut off 
an underground water supply to the plaintiff 
upon his land ; — Held, that this was not action- 
able, though done " solely with the purpose of 
injuring the plaintiff and not with any pur- 
pose of usefulness to himself." Chatfield v. 
WiUon, 28 Vt. 49. 41 Vt. 345. 

86. A party is not precluded from standing 
upon and exercising a legal right, because he is 
prompted to do so by an improper or unworthy 
motive. Tn re Foster, 44 Vt. 670. 

87. No legal duty owing to the plaintiff. 
The plaintiff took from the defendant's prem- 
ises without his knowledge or permission a bar, 
or pole, belonging to the defendant, and used 
the same in supporting a staging set up for the 
purpose of shingling the plaintiff's barn. The 
defendant, in the plaintiff's absence and with- 
out his knowledge, retook and removed the 
bar, doing no more damage to the staging than 
was necessary to repossess himself of the bar. 
The plaintiff, without knowing that the bar 
had been removed, went upon the staging, and, 
by reason of its being weakened by the removal 
of the bar, it fell, and the plaintiff was injured 
thereby. In an action therefor ; —Held, that the 
defendant was justified in retaking his property, 
and that no legal duty was imposed upon him 
to give notice of the removal, or to have used 
diligence to give notice, and that the plaintiff 
could not recover for his misfortune. White v. 
TiritcheU, 25 Vt. 620. 

88. The plaintiff owed the defendant bank, 
and his agent, by his direction, sent to the 
bank a certain sum of money to be applied on 
such debt. The money was received and so 
applied. The plaintiff afterwards inquired at 
the bank, and was told by the teller, but by 
mistake and in good faith, that the sum so re- 
ceived was less than the true sum, whereupon 
the plaintiff set about looking up and securing. 



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ACTION, Vm.— ACTION OF ACCOUNT, I. 



the supposed deficiency, and therein incurred 
expenses. In an action to recover therefor— 
Held, that as there was neither fraud nor an 
implied warranty, this was a case of damnum 
absque injuria, and the plaintiff could not re- 
cover. Herrin v. FrankUn Co. Bank, 32 Vt. 
274. 

89. Procuring a wrong judgment. An 
action was held not to lie, charging that the de- 
fendant by false testimony as a witness had 
procured a wrongful judgment against the 
plaintiff ; nor for procuring, by commissioners 
of an estate, the allowance of a note which the 
defendant had forged. Cunningham v. Braim, 
18 Vt. 123. 

90. Incidental damage in guarding 
against plaintiff's wrong. The surface water 
flowed naturally from the plaintiff*s land upon 
the land of the defendant. The plaintiff was 
in the habit of throwing out filthy water from 
his kitchen, when it would run down on the 
defendant's land, and so injured the defend- 
ant's well. To prevent this the defendant put 
up an obstruction, which not only kept back 
the filthy water but caused tlie surface water to 
turn off into the plaintiff's well to its injury. 
The court charged the jury, that if such an ob- 
struction was actually necessary in order to 
prevent injury to the defendant from the filthy 
water, he would not be liable, although it did 
have the effect to stop some of the surface 
water from running off the plaintiff's land upon 
the defendant's. Held correct, and that if the 
means employed did produce some incidental 
hurt or damage to the plaintiff he has no right 
to complain. Beard v. Murphy, 37 Vt. 99. 

91. Counterfeiting materials. Where a 
large number of pieces of German silver, of the 
precise size and thickness of Mexican dollars, 
and made in that form for the purpose of being 
stamped and milled into counterfeit coin of 
that description, were taken by the sheriff from 
a person who was at the time carrying them to 
a place of manufacture for the purpose of hav- 
ing them finished, so that he could put them in 
circulation as genuine coin, and they were de- 
tained by the sheriff under the direction of the 
State's Attorney, to be used as evidence on the 
trial of such person who was then under indict- 
ment, and also to prevent their being put in 
circulation : — Held, that the owner of the pieces, 
in the absence of evidence that they were put 
in their present form without his knowledge, 
or against his consent, could not sustain trover 
against the sheriff therefor. SpaMing v. Pres- 
ton, 21 Vt. 9. 

92. Voluntary service and pasrment. W 
requested F to hand a certain note to H in pay- 
ment of an execution which H held against W, 
but gave no further authority. H refused to 
receive the note, whereupon S at the request of 
of F signed with him a note to H which he re- 



ceived in satisfaction of the execution, and S 
afterwards paid this note. HM, that S could 
not maintain an action against W for money 
paici, for want of privity between them arising 
from any request of W. Huntington v. Wilder, 
6 Vt. 334. 

93. Election— Befosing a vote. Whether 
the presiding officer at an election who, by mere 
error in judgment, refuses to receive a legal 
vote, is .liable therefor in an action — qucere. 
Temple v. Mead, 4 Vt. 535. 

For particular actions, sefe the several titles, 
as Account, Ejectment, etc. 



I. 
II. 



ACTION OF ACCOUNT. 

In What Cases the Acth>n Lies. 

PBOOEOrRE. 



^ I. In What Cases the Action Lies. 

1. Defendant baiUff-LiabiUty. A bail- 
iff is not liable, in the action of account, to 
account for the property he received, but which 
he has not turned into profits, unless he has so 
disposed of it, or appropriated it to his own 
use, that he has consumed or wasted it as if it 
were his own. That he has converted it to his 
own use so as to be liable for it in an action of 
trover, may not be a sufficient appropriation of 
it to make him liable in account. Oibbs v. 
Sleeper, 45 Vt. 409. 

2. Locus of estate. An action of account 
was /teld to lie in this State, although both par- 
ties resided in New Hampshire, and the locks 
and canals, of the profits of which an account 
was claimed, were there situate. Whitmore v. 
Orcutt, Brayt. 32. 

3. Promissory notes. An action for ac- 
count was held to lie against the defendant, as 
bailiff, for certain promissory notes (with their 
proceeds), which the defendant had taken pay- 
able to himself, but for the benefit of the plain- 
tiff, then a married woman, but discovert be- 
fore demand and suit. Smith v. Woods, 3 Vt. 
485 . ^. (7. 4 Vt. 400. 

4. Guardian. So in behalf of a ward 
against his former guardian, who continued the 
management of the estate after the termination 
of the guardianship, and he may recover not 
only for the time the defendant held the estate 
as bailiff, but also while he held it as guardian. 
Harriet v. Harris, 44 Vt. 320. Field v. Torrey, 
7 Vt. 372. 

5. Letting land on shares. The action of 
account (not book account) is the appropriate 
action for the settlement of accounts growing 
out of the letting of a farm *' upon shares, or at 
the halves." Albee v. Fairbanks, 10 Vt. 314. 
Oanaway v. Miller, 16 Vt. 152. Stedman v. 



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ACTION OF ACCOUNT, 11. 



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0(uaeU, 18 Vl. 346. Aiken v. 8mith, 21 Vt. 
172. CiUey v. Tenny, 31 Vt. 401. 

6. Under a contract for joint occupancy of 
land for one year, and division of profits, an 
action of account will not lie l)efore the ex- 
piration of the year. (In this case, the plain- 
tiff quit without license, before the expiration 

.of the term.) Oanattay v. Miller. 

7. Although the action of account is the 
prqper remedy for the adjustment of controver- 
sies growing out of the letting of land upon 
shares, yet breaches of contract on either part, 
whereby the making of profits has been pre- 
vented merely, though they may be brought in- 
to the account, need not necessarily be, but 
may be sued for independently, and damages 
recovered. Iai Point v. ScoU, 36 Vt. 603. 

8. Equitable title. The action of account 
will not lie upon a merely equitable title of ten- 
ancy in common, or joint tenancy, to recover 
for rents and profits, or the avails of land by 
sale. The remedy is in equity. Cearnen v. /r- 
ting, 31 Vt. 604. 

9. Tenancy in common. The plaintiff let 
the defendant have a quantity of cucumWrs, to 
be pickled by the defendant at the halves. The 
defendant pickled them, but did not return one- 
half the pickles to the plaintiff. Held^ that an 
action of account, as between tenants in com- 
mon, would lie therefor, and that, under G. 8., 
c. 41, 8. 18, the claim might be adjusted with 
other items in the book account action. Gates 
V. Loekwood, 27 Vt. 286. 

10. A sum found du6 to one tenant in com- 
mon, on settlement of accounts Iwtween them, 
may be charged as an item in a new account, 
and be so adjusted in a subsequent action of 
account. Kidder v. Rixf(rrd, 16 Vt. 169. 

11. The interest of a tenant in common of 
growing crops is assignable. The assignee 
takes the place of the assignor, and may main- 
tain the action of account against his co-tenant, 
after severance, for his just share of the crops. 
Aiken v. Smith, 21 Vt. 172. 

12. Co-partners. The action of account 
lies between partners to recover the balance 
due upon the settlement of the partnership; 
and not to recover a specific sum of money, re 
ceived by one of the partners for the use and 
benefit of the concern. Wood v. Merraw, 25 
Vt. 340. 

13. Held^ that an action of account did not 
lie in favor of one who was the active partner 
and received the whole property and avails of 
the co-partnership against the other, who had 
received nothing, to recover the balance of 
losses. Spear v. Newell, 13 Vt. 288. 

14. The action of account between partners 
exists at common law, and survives to the ad- 
ministrator, without the aid of the statute of 
1852. (G. S. c. 41, s. 13.) Our statutes on the 
subject of the action of account were not passed 



for the purpose of limiting the action to the 
cases enumerated, but to extend the action in 
certain cases wlujre it did not lie at common 
law. NeweU v. Humphrey, 37 Vt. 265. 

15. A and D were co-partners in trade. 
They dissolved, and D assigned to A all the 
property and debts to collect, pay partnership 
debts and account for the surplus. D being 
indebted to T afterwards assigned to him his 
interest in the property, to pay such debt and 
account for the balance ; and afterwards A as- 
signed all his interest to T, to pay his and the 
partnership indebtedness to T, and to account 
for the balance. Held, that T was not the 
bailiff of A and D jointly, but of each sever- 
ally. Allen V. Thrall, 10 Vt. 234. 

16. Co-executors. The action of account 
between co-executors, or co-administrators, does 
not lie at common law. An administrator de 
bonis non cannot maintain such action against a 
former executor, to recover a balance in his 
hands. It is not within the statute. (G. S. 
c. 41, s. 1.) The remedy is by proceedings in 
the probate court. Curtis v. Curtis, 13 Vt. 
517. 26 Vt. 568. 

17. Limited to two parties. Account 
does not lie between more than two parties, 
having several rights. May v. Williams, 3 Vt. 
239. 

18. When there are more than three parties, 
an action of account at common law cannot be 
maintained to settle the partnership. Wood v. 
Merrow, 25 Vt. 340. 

19. Aside from G. 8. c. 41, ss. 13-14, an 
action of account cannot be maintained which 
involves an accounting between more than two 
parties, with each a several interest. LaPoint 
V. Scott, 36 Vt. 633. WisiceU v. Witkins, 4 Vt. 
137. 9 Vt. 36. Smith v. Woods, 3 Vt. 486. 

20. Nor under that statute has a justice 
jurisdiction in such case. La Point v. ScA>tt. 

21. But in the case of a joint interest repre- 
sented by several defendants and constituting 
them one party (and the same as to plaintiffs), 
account will lie, without the aid of that statute. 
lb. Wistr^U V. Wimns, 4 Vt.vl37. 

22. Book account matters. Counts in 
account and book account cannot be joined. 
May V. WilUams, 3 Vt. 239. 

23. In an action of account, items of book 
account cannot be adjusted. CiUey v. Tenny, 
31 Vt. 401. 

24. But if such items are brought in and 
submitted without objection and are adjusted, 
the auditor will be regarded as acting by con- 
sent of the parties, as arbitrator or referee, and 
the court will not disturb the adjustment. Aiken 
V. Smith, 21 Vt. 172. 

XL Procedure. 

25. Demand requisite. A demand to ac. 



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ACTION OF ACCOUNT, U. 



count, or something tantamount to it, is neces- 
sary to perfect the cause of action in this action. 
But as to a particular itenf of the account, 
where the whole action does not depend upon 
that, a demand after suit brought, but before 
the audit, is sufficient. Oate^ v. Ixx'.ktpood, 27 
Vt. 286. {Chadmek v. Divol, 12 Vt. 499.) 

26. What sufficient. Where a division of 
crops l)etween lessor and lessee is the mode of 
accounting provided for, a demand for such 
division after the crops are gathered and stored, 
although before the expiration of the lease, is a 
sufficient demand on which to base an action 
of account. The lessor, in such case, is not 
bound to wait until the crops are consumed or 
disposed of, and then renew his demand for a 
different accounting. Strdman v. Gassett^ 18 
Vt. 346. 

27. In an action of account by one tenant in 
common against his co-tenant, as bailiff and 
receiver of the common property, the <lefend- 
ant pleaded that the plaintiff did not heiora 
suit brought demand the rendering of an ac- 
count. Held, that a demand by the plaintiff 
that the defendant return the property or pay 
for it, or the plaintiff would sue him, accom- 
panied by a denial by the defendant that the 
plaintiff had any right in the property, was a 
sufficient demand. Aiken v. Smith, 21 Vt. 172. 

28. Demand superseded. Where an issue 
is joined upon the defendant's plea that he was 
never bailiff, the plaintiff is not required to 
prove a demand, before suit, that the defend- 
ant render an account. Chadwick v. IMvol^ 12 
Vt. 499. 

29. Declaration. In an action of account 
to recover money received by the defendant for 
which he ought to account, he should be charged 
as receiver, not as a bailiff, simply. Wood v. 
Merrmc, 25 Vt. 340. 

30. A count against one as receiver merely, 
must allege what money was received and from 
whom ; — a count nearly obsolete, since assump- 
sit for money had and received as well lies. 
May V. Williams, 3 Vt. 239. 

31. In the action of account at common law, 
charging the defendant as receiver, where the 
privity between the parties is created by the re- 
ceipt of the money, the declaration must state 
by whose hands it was received ; but where the 
privity arises from the relation of the parties, 
as in case of partners, this is not necessary, but 
the relation must be stated. Moore v. Wilmn, 
2 D. Chip. 91. Robirmonv. Wriffhty Brayt. 22. 
Squire v. Allen, Brayt. 190. 

32. Where the privity which exists between 
the parties arises from their connection as part- 
ners, this connection should be stated in the 
the declaration. Wood v. Merrow, 26 Vt. 340. 

33. The declaration in this action need not 
specify all the items, nor the subject matter of 
each item, but only the transaction, the con- 



tract or relation out of which the account is 
claimed ; and before the auditor, all items which 
are connected and consistent with that contract 
or relation, may be adjusted. Joy v. Walker, 
29 Vt. 257. (Dictum eontra in Qanavay v; 
Miller, 15 Vt. 154, denied. lb. 262.) 

34. In an action of account tocompn?! an ad- 
justment of the rights of the parties to the rents, 
use and occupation, or products of land, or the 
avails of a sale, as between joint owners or ten- 
ants in common, the declaration must set forth 
and define the interest and proportionate share 
of each party, and that the defendant has re- 
ceived more than his just share. Brinsmaid v. 
Mayo, 9 Vt. 31. Ganaway v. Miller, 15 Vt. 
152. 19 Vt. 197. Cearnes v. Irving, 31 Vt.604. 

35. A declaration, imperfect in these re- 
spi^cts, was held good after verdict. Strong v. 
Richardson, 19 Vt. 194. 

36. The action of account between tenants 
in common, or joint tenants, under G. 8. c. 
41, depends upon privity of estate, and not of 
contract. In order to entitle the plaintiff to the 
l>enefit of the statute, he must allege specifically 
in his declaration the facts necessary to bring, 
the case within it, viz : The joint tenancy, or 
tenancy in common, of the parties, the propor- 
tions in which they hold, and that the defend- 
ant has received more than his just share or 
proportion. Difference between account at 
common law between tenants in common, and 
under the statute, noted. Hayden v. Merrill, 
44 Vt. 336. 

37. Flea and issue. In an action of ac- 
count between partners, demanding an account 
of money received by the defendant arising 
from the profits of the business more than his 
just share, the defendant pleaded that he had 
fully accounted. Held, that an agreement 
signed by the plaintiff, reciting that the defend- 
ant had relinquished to him all claims to the 
demands due the firm and to the stock of the 
compan}^ and that the plaintiff promised to 
pay all debts due from the firm, and to indem- 
nify the defendant against them, did not tend 
to support the plea. Woodward v. Francis, 19 
Vt. 434. 

38. Action of account, charging the defend- 
ant as bailiff and receiver. Plea that the 
defendant was never bailiff and receiver— and 
issue joined. Held, that it was not error to 
receive evidenct; which proved the averments 
of the declaration, and to determine the issue 
upon it, irrespective of the sufficiency of the 
declaration ; and (by Williams, C. J.) the 
County Court would not have been justified in 
testing the sufficiency of the declaration, on 
the trial of the issue formed. Onion v. Fuller- 
ton, 17 Vt. 359 ; and see Wheelock v. Wheeloek, 
5 Vt. 433. 

39. Rules of pleading. Kules of pleading 
in actions of account, given by Redfeld, J., 



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ACTION OF ACCOUNT, 11.— ACTION ON THE CASE. 13 



in BUliop V. Baldwin, 14 Vt. 145 ; as in God- 
frey V. Saunders J 3 Wilson 94. 

40. In an action of account between part- 
ners, the defendant cannot plead in Imr of the 
judgment to account, that he has accounted as 
to part of the account, but must show this in 
evidence liefore the auditor ; nor can he plead 
that he does not owe the plaintiff. Morgan v. 
Adamg, 37 Vt. 233. 

41. Effect of judgment to account. The 
judgment to account conclusively settles the 
contract or relation upon which the plaintiff, 
in his declaration, claims the account. Redfield, 
J., in Alhe4f v. FairbanUcs, 10 Vt. 317. 

42. What may be pleaded in bar of the 
action must be so pleaded; and all defenses 
which might he pleaded in bar, if not so pleaded, 
are considered as waived. Pickett v. Pearmtnn, 
17 Vt. 470. Baxter v. Thompson, 26 Vt. 559. 

43. There can be no revision of the merits 
of the judgment to account on the hearing 
before the auditor, nor on the hearing upon his 
report. Porter v. Wheeler, 37 Vt. 281. Newetl 
V. Humphrey, 37 Vt. 269. 48 Vt. 309. 

44. The judgment to account conclusively 
fixes the relation upon which the account is 
claimed [as that the defendant was a partner], 
and determines all thie facts stated in the declar- 
ation, except that the defendant is in arrear. 
BifAop V. Baldwin, 14 Vt. 145. 

45. Proceedings before auditors— Ex- 
tent of recovery. In an action of account be- 
tween partners, declaring in common form, 
the plaintiff can recover only for the balance 
due him on the adjustment of all their partner 
ship dealings. Warren v. Wheelock, 21. Vt. 
323. 

46. In an action of account between part- 
ners, under G. S. c. 41, s. 13, where the defen 
dant had purchased the interest of a third part- 
ner and represented two-thirds of the concern, 
aid the plaintiff one-third -.—Held, 'that the 
plaintiff could recover of the defendant two- 
thirds of the sum which the plaintiff had paid 
upon a partnership debt. Kendriek v. Tarbell. 
27 Vt. 512. 

47. In an action of account between land- 
lord and a tenant on shares, a neglect of the 
tenant to keep up the fences and to hoe the com, 
as provided in the lease, whereby the joint pro- 
fits were reduced, is proper matter for allow- 
ance and adjustment. CiUey v. Tenny, 31 Vt. 
401. 36 Vt. 609. 

48. So the expense of keeping a team and of 
providing tools and seed may be recovered. 
Gnnaway v. MiUer, 15 Vt. 152. 

49. And so of all items that are connected 
with the carrying on of the farm for the joint 
benefit of the parties, and which are necessary 
to l)e taken into account in determining the 
profits, and whether the defendant has given an 
account of what he received **more than his 



just share." Joy v. Walker, 29 Vt. 257. 31 
Vt. 406. 

50. Accounts to be adjusted to time of 
audit. Appeal from the Probate C/Ourt on the 
allowance of a guardian's account. — Referred to 
a commissioner who adjusted the accounts to the 
time of the hearing, embracing charges for ser- 
vices, &c., of the guardian during his guardian- 
ship, but accruing after the appeal. Held cor- 
rect. Hancood v. Boardman, 38 Vt. 554. 

51. On an appeal from the disallowance by 
commissioners of a claim against an estate, 
where the case was referred by consent, the 
referee allowed against the administrator 
claims for money paid for the benefit of the 
estate, which accrued after the death of the 
intestate ,—Held, not erroneous. [There was 
a stip«lation to this effect entered into before the 
referee.] McDaniels v. McDanieU, 40 Vt. 340. 

52. Amendment. The declaration in an ac- 
tion of account cannot be amended so as to intro- 
duce a new and distinct claim, after the coming 
in of the auditor's report, unless the report is 
first set aside. If amended, the defendant 
^would be entitled to plead anew to the amended 
count. Joy v. Walker, 28 Vt. 442. 



ACTION ON THE OASE. 

1. When the action lies— In general. 
An action of trespass on the case lies, in general, 
where one sustains an injury by the misconduct 
of another, for which the law has provided no 
other adequate remedy. Griffin v. Farwell, 20 
Vt. 151. 

2. An action on the case does not lie, charg- 
ing the defendant with being a party to a fraud- 
ulent purchase or judgment for the purpose of 
defrauding the plaintiff of his debt ; nor for a 
fraudulent combination and conspiracy of the 
defendant wiUi the plaintiff's debtor to secrete 
the debtor's property and prevent the plaintiff 
from obtaining security or payment of his debt. 
The law has provided other remedies. Hall v. 
Eaton, 25 Vt. 458. 

3. The selectmen of a town executed certain 
promissory' notes, in their official capacity, in 
behalf of the town, which the defendant, one 
of the selectmen, took to get discounted. He 
afterwards pretended that he had destroyed one 
of them, but in fact fraudulently negotiated it 
to a third person, and got the money on it, which 
he appropriated to his own use. The town 
paid and took up the note. Held, that the de- 
fendant was liable to the town in an action on 
the caSe, and could not urge in defense tliat the 
town was not lifl)le upon the note and that such 
payment was voluntary ; that the money receiv- 
ed upon the note belonged to his principal, the 
town. Troy v. Aiken, 46 Vt. 55. 



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ACTION ON THE CASE. 



4. Distinction between trespass and 
case. In regard to injuries to the person or to 
personal property, where the injury is directly 
inflicted by a forcible act, as where a blow is 
given to a person, or an act of violence com- 
mitted upon his beast, or other property, caus- 
ing injury, the party aggrieved has generally no 
choice of actions and trespass is his only re- 
medy ; but the necessity of suing in trespass 
extends no further, though the injury may have 
followed the forcible act without the interven- 
tioli of any voluntary and responsible agency — 
as where the party has sustained a forcible in- 
jury, effected by means flowing from the act of 
the defendant, but not operating by the very 
force and impulse of that act. In this latter 
case he may sue in trespass, constructively 
treating those means as attached to and fofming 
a part of the defendant's act, and thus bringing 
that act into immediate connection with the in- 
jury ; or, waiving all artificial views of the 
matter, he may adopt the other form of action, 
and treat the in j ury as consequent ial . R</yc^, J . , 
in Waterman v. Hall, 17 Vt. 128. 

5. "Wliere the defendants *'8et upon the plain-« 
tiff's mare with stones and clubs, and chased 
and frightened said mare, and drove her upon 
a certain log fence, whereby she was injured"— 
Held, that the plaintiff might, at his election 
bring case, or trespass ; and an action on the 
case was sustained. lb. 

6. If the injury be mlful, and be committed 
by the defendant himself, and the injury imme 
diate, th« action must be trespass. So, too, if 
the injury is immediate, and the defendant pogi 
tiioely does any act prodncing or increasing the 
injury, trespass is the appropriate remedy. But 
where the only fault of the defendant consists in 
negUgen^ie, is a mere non-feamnc^, although the 
injury is immediate, the appropriate remedy is 
case. ClajUn v. Wikox, 18 Vt. 605. 

7. Case was sustained for a collision with 
the pliintiff's team upon a highway, where the 
defendant's team was driven by himself; the 
declaration averring that "the defendant so care- 
lessly drove, governed and directed his horse 
and sleigh that by and through the carelessness, 
negligence and improper conduct of the defend- 
ant, the defendant's sleigh struck with great 
force and violence against the plaintiff's horse 
and thereby wounded and killed him," — the 
proof corresponding. lb. 

8. Where the injury to the plaintiff results 
from the immediate force of the defendant, and 
is caused by his carelessness and negligence, 
and is not wilful, the plaintiff can maintain 
either trespass or case. Trespass was sustained 
in such case. Howard v. Tyler, 46 Vt. 683. 

9. Where the plaintiffs, by permission of a 
school district, occupied the school house for 
the purpose of a private school for the time be- 
ing merely, and not inconsistent with the rights 



of the district, and the defendant, the pruden- 
tial committee of the district, wrongfully dis- 
turbed them in the occupation of the house ; — 
Held, that the defendant was liable therefor in 
an action on the case, and not in trespass. 
Chaplin V. Hill, 24 Vt. 528, and see BakertifUld 
Society v. Barker, 15 Vt. 119. Kellogg v. JMckin- 
mn, 18 Vt. 266. Perrin v. Granger, 33 Vt. 101. 

10. Abuse of process. Case, and not tres- 
pass, is the appropriate action to recover for a 
mere abuse of regular process. Piermn v. QaU, 
8Vt. 509. 28 Vt. 17; also for a mere 7W»- 
feamnce—tis for the refusal of the ofl[icer to take 
bail. Churchill v. Churchill, 12 Vt. 661 ; or for 
neglect to take proper care of property attached. 
AbboU V. Kimball, 19 Vt. 551. Ha4e v. Hunt- 
ley, 21 Vt. 147. 

1 1 . Joinder. Trespass and case for the same 
cause of action may be joined, by G. S. c. 33. 
s. 16. 

12. Matter groyring out of contract. 
Count in *Www" against a carrier for neglect to 
deliver goods, and a loss. It was claimed that 
the count was in assumpsit, because, after set- 
ting up the business of th^ defendant, the count 
did not expressly aver the defendant's duty re- 
sulting therefrom to carry and deliver. Held, 
that this was not necessary, it being a legal in- 
ference ; that, in such cases, what especially 
distinguishes cnse from assumpsit, is the omis- 
sion in the former of the consideration, and the 
averment of negligence. Wright v. McKee, 37 
Vt. 161. 

13. The defendant contracted for the privi- 
lige of floating logs through the plaintiff's mill- 
dam and bulkhead at a stipulated price, agree- 
ing to repair and pay all damages in conse- 
quence. Held, that an action on the case, ex 
delicto, lay for damages occasioned to the dam 
and bulkhead, by the faulty negligence of the 
defendant in doing what he was entitled to do 
under his contract. Dean v. Mcl^ean, 48 Vt. 412. 

14. Declaration. In an action on the case 
for negligence, the most general statement of 
the cause of action, if sufficient to put the de- 
fendant on his defense, seems sufllcient after 
verdict. Taylm- v. Day, 16 Vt. 566, and see 
Cutler V. Adams, 15 Vt. 237. 

15. The form of declaration for false war- 
ranty in sale of personal property (warranti- 
zamio vendidit) is adapted to case for deceit in 
the sale of real estate. Harlow v. Oreen, 34 
Vt. 379. . 

16. Plea and evidence. In case, any- 
thing is admissible in evidence, without special 
plea or notice, which shows the defendant not 
guilty of anything actionable in respect to the 
matters charged in the declaration. Jerome v. 
Smith, 48 Vt. 230. 

17. Or, which destroys the right of action, 
— as, a former recovery for the same cause of 
action. Whitney v. Clarendon, 18 Vt. 362. 



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ACTION ON THE CASE— ACTION ON STATUTE. 



15 



18. In such action for an injury to the 
plaintifiTs reversionary interest in land : — 
Held, that, under the general issue, the defend- 
ants niijcht justify hy evidence that what they 
did was done by them in their official capacity 
as selectmen in building a highway, which had 
been laid out hy their predecessors in office. 
Kidder v. Jennrnm, 21 Vt. 108. 40 Vt. 289. 

19. In actions of tort, the plaintiff is not 
bound to prove his whole declaration, but only 
enough to make a good cause of action. He must 
prove the very injur}*^ of which he complains, 
but need not to the full extent. Hutchinmn v. 
Granger, 13 Vt. 386. 

20. In an action on the case for deceit, it is 
not necessary for the plaintiff to prove all that 
he has alleged in his declaration as to the means 
and arts practised by the defendant, provided 
less than all is sufficient to give a cause of action, 
and so much is proved. Somers v. Rt'charfU, 46 
Vt. 170. 

For the mbfect matter of this abtion see the 
several titles, as Neglioknoe, Fraud, etc. 



ACTION ON STATUTE. 

1. New right created. Where a statute 
creates a new liability and provides a remedy, 
that is tlie sole remedy ; but where a new lia- 
bility is created and no remedy provided, a re- 
sort may be had to a common law remedy. 
WindJiam Prov. Inst. v. Sprague, 48 Vt. 502 ; 
DaurJiy v. Dnnim, 24 Vt. 197. See Netcmany. 
WaiU, 43 Vt. 687. BratOeboro v. Wait, 44 Vt. 
459. 

2. Where a statute creates a right and pre- 
scribes the mode of enforcing it, that mode 
alone can be resorted to. Thayer v. Partnridge, 
47 Vt. 423. 

3. Declaration. In prosecutions or actions 
upon statutes, every circumstance in the des 
cription of the offense, contained in the body of 
the clause which creates it and gives the penalty 
or forfeiture, mpst l)e set forth, so as to bring 
the defendant within the statute. EIU% v. Hull, 
2Aik. 41. 

4. In a penal action nothing can be taken 
by implication, or be aided by intendment, but 
the plaintiff must show clearly that the penalty 
has accrued, and how it accrued. Everts v. 
Allen, 1 D. Chip. 116. 

5. A count in trespass for cutting a tree on 
the plaintiff's land, in common form for tres- 
pass, qua. c-lau. but concluding by counting up- 
on a statute and claiming treble damages under 
it, was held (by a majority) to be a penal 
action, and not trespass at common law. Keyes 
V. Pre^eatt, 82 Vt. 86. 45 Vt. 81. 

6. A declaration in trespass for the worry- 
ing, &c., of the plaintiff's sheep by the defend- 



ant's dog, concluding to his damage and con- 
trary to the form, &c., of s. 9. of c. 104 of G. 
8., was Jield to be a declaration on the statute 
to the extent of recovering single damages. 
Rawe V. Bird, 48 Vt.- 678. 

7. In an action of debt against a justice of 
the peace to recover the penalty prescribed by 
C'. S. c. 66, 8. 16, for solemnizing the marriage 
of the plaintiff's minor daughter without his 
consent, the declaration failed to charge the 
offense as aQmimt the form of the Htatute, d'c. 
Held, sufficient on motion in arrest, following 
the precedent in Ellt's v. Hull, 2 Aik. 41 ; but 
limiting the decision to actions on this particular 
statute. Burtiell v. Dodge, 83 Vt. 462. 

8. Bemedial statute. When a statute gives 
the aggrieved party a right to recover cumula- 
tive damages (as double damages and costs), 
it is treated as a remedial and not a penal 
statute :— 8o held, in an action of trespass under 
G. S. c. 104, s. 9, for the worrying. &c., of the 
plaintiff's sheep by the defendant's dog. Bur- 
nett V. Ward, 42 Vt. 80. (See Newman v. 
Waite,^\t. 687.) 

9. In such case, the rule of evidence applic- 
able to criminal prosecutions and strictly penal 
actions (as that the jury must be satisfied be- 
yond reasonable doubt) does not apply. lb. 

10. In an action to recover the forfeiture 
given by a penal statute to the party aggrieved, 
or to such party and the State, no minute of 
the true day, &c., of the exhibition of the writ 
is necessary. Benton v. Crook, Brayt. 188. 
HaU V. Ada?nif, 1 Aik. 68 (1826). 

11. Penal— Minute. An action to recover 
treble damages given by sec. 1 of the statute to 
prevent trespass, &c.(Slade'8 Stat. 280), requires 
a minute on the process of the time of exhibit- 
ing it. B(yifien v. Fuller, 2 Tyl. S!>. 

12. The statute which requires a true min- 
ute of the day. month and year to be entered 
upon a writ ** when the same was signed*' (G. 
S. c. 62, 8. 9), is not satisfied by such minute 
of the day, &c., when the writ w&s exhibited. 
Such minute cannot be afterwards made, nor 
can be amended. Pollard v. Wilder, 17 Vt. 
48 MontpeUer v. Andrews, 16 Vt. 604. Whee- 
lock V. Sears, 19 Vt. 559. School District v. 
Austin, 46 Vt. 90. 

13. The statute subjecting an officer receiv- 
ing illegal fees to the payment to the party ag- 
grieved of ten dollars for each dollar of excess 
of fees so received (G. S. c. 125, s. 17) is a 
penal statute ; and a true minute of the day, 
month and year when the writ is signed, in an 
action to recover such penalty, is required, 

Wheelock v. Sears. 

14. A qui ta/m suit to recover of a highway 
surveyor the penalty provided in section 8 of 
the act of March 3, 1797 (C. S., p. 480), for 
not clearing a highway of obstructions, where 
one moiety goes to the town treasurer and the 



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ACTION ON STATUTE— AGENT, I. 



Other to any person who shall prosecute, re- 
quires a minute of the day, month and year 
when the writ issues. Dassanee v. GatfSy 13 
Vt. 255. 

15. Measure of proof. In actions upon 
penal statutes full proof, as in criminal cases, 
is required to warrant a recovery. Bant^t v. 
Ray. 33 Vt. 205. Brooke v. Clayea, 10 Vt. 37. 

16. In an action upon the statute authoriz- 
ing the recovery of double the value of the 
effects of a deceased person embezzled or 
alienated before administration granted (G. 
8., c. 51, s. lO.l— Held, (1), that, in order to 
subject the defendant to the penalty, he must 
have acted from a wrong motive, and mala 
fide,, (2), that the plaintiff must make out 
what is called full proof, and cannot recover 
on merely a preponderance of testimony. Royi* 
v. Roys, 13 Vt. 543. 

17. Qm tarn— Civil action. A q^U tam 
action is a civil action. WaterH v. Day, 10 Vt. 
487. 

18. Bo is an action of debt by a town to 
recover certain penalties under the listing act. 
Pviney v. RelUyws, 8 Vt. 272. 

19. Survivorship. A prosecution qvi tam 
for usury abates by death of the defendant. 
Nor if he dies after verdict and before the law 
term, where judgment is respited by motion in 
arrest, will judgment be rendered 7iunc pro 
tunc. Benmn v. Egerton, Brayt. 21. 

20. Two joint creditors bring their action 
qui tam to recover the |)enalty given by statute 
for a fraudulent conveyance, and one of them 
dies '.—Held, that the action survive* to the 
other. Wright v. Eldred, 2 D. (Iiip. 37. 

21. Judgment, &c., as a bar. Where the 
amount of a penalty was fixed by statute, the 
record of a conviction before a justice on vol- 
untary confession, and payment of the full pen- 
alty, were held a bar to a subsequent action qvi 
tam ; — decision limited to the special case. 
Hamilton v. Williams, 1 Tyl. 15. 

22. Trespass Act. In the act to prevent 
certain trespasses (Slade*s stat. 281, s. 5) the 
word "wilfully" is not synonymous with volun- 
tarily, but implies a tort, or wrong. Savage v. 
Tullar, Brayt. 223. 

23. Inspection Act. Under stat. 1850, No. 
28, giving to **the person injured" an action to 
recover a penalty tor the selling of flour not in- 
specied'.—Held, that the public at large, the 
dealers in flour, and not flour inspectors, were 
intended to be protected by the statute ; that 
the injury to the inspector was but indirect and 
remote, and that he could not maintain an ac- 
tion for the penalty. Hatch v. Robinwn, 26 Vt. 
787. 

See Fraudulent Gonvkyance. 



AGENT. 

I. Proof of Aq«noy. 
II. Authority of Agent ; Ratification ♦ 
AND Revocation ; Particular 
Agents ; Notice of Termination 
OF Agency ; Mode of Contract- 
ing. 

III. Duties, Liabilities and Rights of 

Agent. 

1. As to his principal. 

2. As to tliird person. 

IV. Acts and Declarations of Agent. 

1. As binding his principal. 

2. As enuring to the benefit of his 

principal. 

I. Proof of Agency. 

1. In a case where an agency could be cre- 
ated without writing, the question was whether . 
the plaintiff's wife was his agent to w^tle a cer- 
tain demand. Held, that the defendant could 
prove this by the plaintiff's admission that he 
had given his wife "'a power of attorney" to 
settle the demand, without notice to produce a 
wTitten power. Curtis v. Ingham, 2 Vt. 287. 

2. When one has conveyed land with war- 
ranty, and afterwards puts a third person In 
possession which may enure to the benefit of 
his grantee, this affords ground for the pre- 
sumption that he acted therein as agent for his 
grantee. Warner v. Page, 4 Vt. 291. 

3. Where a writing is necessary to the ere. 
ation of an agency, the writing should be pro- 
duced in order to prove the agency. In other 
cases, the agency may be proved either by 
direct evidence, or by the habit and course of 
dealings of the parties, or by recognition. 
Walsh V. PiercA>, 12 Vt. 130. 

4. Certain facts stated as constituting an 
agency. Alcxand/^r v. Bank of Rutland, 24 
Vt. 222. 

5. In a suit against a sheriff for not collect- 
ing and returning an execution in favor of tiie 
plaintiff town, the defense wa« that the town, 
by its town agent, contn)lled the execution : — 
Held., (1), that evidence tliat the town agent 
agreed at different times to control the execu- 
tion and look to the debtor for payment, had . 
no tendency to prove the issue; (2), that 
evidence that the town agent had admitted, at 
different times and to different i>erson8, that he 
had controlled the execution, was not admissi . 
ble. Barnard v. Henry, 25 Vt. 289. 

6. One is, at common law, competent as a 
witness, either for or against his principal, to 
prove his agency and his acts done and con - 
tracts made, as agent, whether verbal or writ- 
ten—as, in this case, to prove his authority to 
execute a note in the name of his *principal. 
Lytle V. Bond, 40 Vt. 618. 



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AGENT, It 



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II. ArTHORITY OF AORNT. 

7. General agency. . A discharge of certain 
parties to a subscription paper, though without 
payment, by an agent clothed with ** full powers 
to close the subscription in such manner as he 
should deem for the best interests of the col- 
lege" was held valid. MiddUbury College v. 
Loomu, 1 Vt. 189. . 

8. A power of attorney under seal author- 
ized the attorney to sell lands at the best prices, 
either by public auction or private contract, as 
he might think most advantageous, and upon 
sale thereof ** to sign, seal and execute all or 
any such contracts, agreements, conveyances 
and assurances, and to do and perform all such 
acts and things for perfecting such sale or sales 
• • as shall be requisite and necessary in that 
behalf." Held^ that the power authorized the 
attorney, on sale, to convey by deed containing 
the usual covenants of warranty, and that his 
principal was bound by such covenants. Petern 
V. FarT^ftitorth, 15 Vt. 165. 

9. A, the plaintifTs head millwright, on be 
half of the plaintifiF, made a contract with the 
defendant to fit up his mill upon terms differing 
from the plaintiff's established price lists. A 
had been directed by the plaintiff not to vary 
from these lists. Held, nevertheless, in the 
special circumstances of this case, that the plain- 
tiff was bound by the contract of A. WiUiaTtM 
V. Oolbjf, 44 Vt. 40. 

10. The defendants carried on a country 
store, which was managed by R as their general 
agent in that business. He was instructed not 
to pay cash for butter, but to take in so much, 
on debts and in exchange for goods, as might 
be necessary to supply customers according to 
such custom of country merchants. He was at 
the same time agent for another person for the 
purchase of butter for cash, and contracted 
with the plaintiff for all the butter he should 
make until June following, to be delivered at 
the defendants' store, and to pay the cash there- 
for. The plaintiff supposed that the butter was 
for the defendants and had no notice to the con- 
trary, nor of any instructions to R not to pay 
cash. It did not appear that the defendants 
knew that the plaintiff supposed he was 
selling the butter to them. The plaintiff deliv- 
ered on the contract eight tubs of butter, but 
the defendants derived no benefit therefrom. 
Ifeld^ that the defendants were not liable there- 
for. Cochran v. Jiiehardson, 33 Vt. 169. 

11. A general agent for the leasing of the 
principal's farm and managing his business, but 
not his universal agent, cannot lease the princi- 
pal's farm jointly with his own, so as to make 
the principal Jointly liable with himself upon 
the stipulations in the lease in reference to his 
own property, as well as the principal's. La 
Point V. 8coU, 36 Vt. 603. 



12. Limited. The defendant, by a contract 
with S, delivered him wool to card and cloth to 
dress. S was then or soon after employed by 
the plaintiff by the month in the plaintiff's card- 
ing and clothing works, which was generally 
known, and the defendant's wool was there 
carded and his cloth dressed. Before the servi- 
ces were performed, and before the defendant 
had paid S therefor, he knew that S was in the 
employ of the plaintiff and that the work was 
done at his shop. Held, that any payments 
thereafter made to S should not apply on the 
plaintiff's account. TuUle v. Green, 10 Vt. 62. 

13. The authority of an agent to sell goods 
does not ordinarily extend to the collection of 
the notes taken on such sales by the prosecution 
of suits upon them, and imposing upon his prin- 
cipal a liability for the costs and expenses of 
such suits. And this will not be implied on the 
ground of necessity, where no pressure of cir- 
cumstances appears. Soule v. Douglierty, 24 
Vt. 92. 

14. A hired man upon a farm who has had 
authority to lend the farming tools, does not re- 
tain that authority, even so far as relates to his 
employer, after the attachment of the property 
and while it is in tlie custody of the officer. 
Briggs v. Taylor, 35 Vt. 57. 

15. Special. The plaintiff sent his son to 
the defendant to demand a specific sum as pay- 
ment for the use of a horse. The defendant 
tendered the son a less sum, which was refused. 
Held, that this was not a tender to the plaintiff. 
Chipman v. Batett, 5 Vt. 148. 

16. The defendant authorized his agent to 
purchase onehalf the plaintiff's hay on the de- 
fendant's account, and no more. The agent 
represented to the plaintiff that he was author- 
ized to purchase the whole on the defendant's 
account, and the plaintiff, relying upon this re- 
presentation as true, sold the whole, of which 
onehalf only came to the defendant's use, and 
the agent took to himself the other half. Held, 
that the defendant was liable for only onehalf. 
It is a case of want of authority in the agent, 
and not of a departure from his instructions as 
to a matter within the scope of his authority. 
HurUmrt v. Kneeland, 32 Vt. 316. 

17. The defendant offered to sell the plain- 
tiff« at a price named, certain cheese, to be taken 
and paid for by the plaintiff on the week follow- 
ing, or as soon thereafter as the plaintiff could 
attend to it, provided the plaintiff should notify 
him the next day of his acceptance of the offer. 
On the next day the plaintiff sent L to the de- 
fendant for the purpose, and no other, of notify- 
ing the defendant that he would take the cheese 
on the terms proposed and to pay the defendant 
$10 as part of the price. L gave the notice and 
offered the money, which the defendant refused 
to take unless it was understood that the plain- 
tiff should take and pay for the cheese by thQ 



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middle of the week following. L said the 
plaintiff would do so, and, if not, that the $10 
paid would be forfeited and belong to the de- 
fendant, whereupon the defendant took the 
money. The plaintiff, as soon as he could at- 
tend to it, but later than the middle of the fol- 
lowing week, called for and offered to take and 
pay for the cheese. The defendant refused to 
deliver the cheese because not called for by the 
middle of the week, and refused to pay back 
the $10. In an action for refusal to deliver, 
and on the money counts; — Held, that the 
plaintiff could not recover for the refusal to 
deliver, but could recover the $10 retained — L 
having no authority to make a new bargain, 
nor to pay the $10, except upon the terms of 
the plaintiff's acceptance of the defendant's 
original offer, which the defendant had legally 
repudiated. Sprague v. TVoiw, 34 Vt. 150. 

18. In a case where a special demand is 
necessary in order to lay the foundation for an 
action upon a contract, a demand different from 
what the contract calls for is nugatory. In such 
case, where a demand was made by an agent dif- 
ferent from what the contract called for, and 
his authority was limited to the making of a 
demand in that form ;— /7«W, that a refusal to 
comply with such demand, or to do anything 
about the matter, was not a waiver of the agent's 
want of authority, nor a waiver of a legd de- 
mand. Oroot V. Story, 41 Vt. 538. 

19. The plaintiff authorized L to sell a 
building for him at a price named. L sold it 
to the defendants at that price, with the mu- 
tual understanding that they might immediately 
take possession and remove it, and should pay 
for it at their convenience after such removal. 
While the defendants were removing the build- 
ing, the plaintiff forbade them from meddling 
with it. The defendants persisted and the 
plaintiff brought trespass therefor. The court 
charged the jury, that the authority given to L to 
sell, authorized him to surrender the possession of 
the building without payment, upon the defend- 
ants' promise to pay after its removal at their 
convenience. Held erroneous : — that, as a spe- 
cial agent, L had no authority to sell on a cre- 
dit; that this was a sale upon a credit; nor 
could he waive the plaintiff's lien for the price. 
RUey V. Wheeler, 44 Vt. 189. 

20. A special agent to sell a horse has au- 
thority to warrant, unless directed otherwise by 
his principal. Deming v. Chcuie, 48 Vt. 882. 

21. A writing directed to the plaintiff, author- 
izing a special agent of the defendants to sell in 
their store with their goods whatever goods the 
plaintiff might sell or consign to such agent, and 
that he might draw out the avails of all said 
goods sold, was heldnoi to authorize such agent 
to purchase goods of the plaintiff in the name 
of the defendants; and where he did so, the 
fact alone that the goods so purchased were re- 



ceived into the defendants' store and sold with 
their gcxxls, was not a ratification of the pur- 
chase in their name, and that the plaintiff could 
not recover of them as for goods sold, but must 
look to the proceeds, as provided in the writ- 
ing. Taum V. Hmdee, 27 Vt 258. 

22. An i^nt was appointed at a meeting of 
a Are district ** to purchase whatever of fire ap- 
paratus the district may vote to buy." The dis- 
trict then voted, (1), ** that $500 be appropriated 
to defray the expenses and preparation of suit- 
able fire apparatus for the use of the district ;" 
and (2), "that the agent be instructed to expend 
a sum not to exceed $1,000, which shall include 
fire apparatus and reservoirs, and all things 
necessary for the protection of the district from 
fire." The agent purchased of the plaintiff, 
who had a copy of these votes, a fire engine, 
&c., at the price of $738. Held {Peck, J, dis- 
senting), that the agent did not exceed his au- 
thority under these votes. Hunneman v. Fvre 
DUtrict, 87 Vt. 40. 

23. The defendant was employed by the 
plaintiff to assist him in selling some horses, 
taken from Vermont to Baltimore, Maryland ; 
was there directed to take them to Richmond, 
Va., and if not there sold to take them for sale 
to Petersburgh, Va. The defendant did so, but 
not succeeding in selling the horses at either 
place, he, without communicating with the 
plaintiff, took the horses into North Car- 
olina, South Carolina and Georgia, and 
finally succeeded, by swapping off the horses, 
in converting them into money. The defend- 
ant acted throughout in good faith, for what he 
supposed was for the best interests of the plain- 
tiff. Held, that he had no authority to go be- 
yond Petersburgh, and that he was not entitled 
to be allowed, as against the proceeds of the 
sale, his expenses and charges after leaving 
Petersburgh. Fuller v. ElUs, 39 Vt. 345. 

24. Baldwin, the agent of an express com- 
pany, employed the defendant to receive ex- 
press packages in Baldwin's absence, giving the 
company's receipts therefor, and to deliver 
packages. The general agent of the company 
knew of this arrangement, made no objection, 
and permitted the business to be so done. The 
plaintiff delivered a package of money to the 
defendant to be forwarded by express, believ- 
ing him to be the agent of the company. The 
defendant received the package, and gave a 
receipt therefor in the usual form of the com- 
pany's receipts, signed *' J. B. Baldwin, agent, 
by S. W. Proctor," (defendant). The package 
was not entered on the books of the company 
and never reached the consignee. The plain- 
tiff, after demand of the money of the defend- 
ant, brought this action of assumpsit in the 
common counts therefor. Held, that in this 
transaction the defendant was the agent of the 
express company and that his acts bound the 



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AGENT, n. 



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company ; and therefore he was not liable in 
this action. Landon v. Proctor, 39 Vt. 78. 

25. Construction of a writing creating a 
limited agency. Spooner v. Thompson, 48 Vt. 
259. 

26. BiBk of dealing with agent. Who. 
ever deals with an agent, having only a special 
or limited authority, is bound at his peril to 
know the extent of the authority. WhiU v. 
Langdon, 30 Vt. 699. Sprague v. Train, 34 
Vt. 150. Qoodrieh v. Tracy, 43 Vt. 314. 

27. A contract cannot be implied against a 
principal which his agent had no authority to 
make, and when such want of authority was 
known to the other party. (Applied to a trans- 
action with an overseer of the poor where the 
town was sought to be charged.) Aldrich v. 
Londonderry, 5 Vt. 441. 

28. Wliere the plaintiff sold goods to B to 
be used in a business carried on by him in the 
name of the defendant, but where B had no 
authority to buy goods on the defendant's 
credit, and the plaintiff charged the goods to 
the defendant,— it was held, in an action on 
book for the price, that it was not enough to 
charge the defendant in the action that the 
plaintiff might be justified from the circum- 
stances In regarding the defendant as the prin- 
cipal, unless he also had sufficient grounds for 
believing that B was authorized to make the 
purchase on the defendant's credit. Brown v. 
Bimngn, 22 Vt. 9. 27 Vt. 265. 

29. Where a note was given by one as an 
agent, but without authority, and this was 
known to the payee ;—Held, that, in an action 
thereon by a bona fide holder, the principal was 
not liable. Holden v. Durant, 29 Vt. 184. 

30. Batificationofactofagent. The ac- 
ceptance of a contract negotiated in one's be- 
half by a volunteer agent perfects it, as if made 
by precedent authority. Middlebury College v. 

Wmamsan, 1 Vt. 212. 

31. Though where an agent exceeds his au- 
thority, his principal may repudiate the transac- 
tion entirely, yet he cannot adopt one part of it 
and reject another, but his adoption of it in part 
is an adoption of it as a whole. Newell ^v, 
HurUmH, 2 Vt. 351. 

32. That a contract made by an agent, 
though without authority, cannot be rescinded 
by the principal while he retains the considera- 
tions—see Qray v. Otis, 11 Vt. 628. 

33. If an agent exceeds his authority by bor- 
rowing money on the credit of his principal, and 
the money goes into the business of the princi- 
pal, and to his benefit, yet all without his know- 
ledge, he is not liable therefor to the lender, 
without a subsequent promise to pay. Spooner 
v. Thompson, 48 Vt. 259. 

34. The plaintiff, at the request of T, the 
defendant's clerk, finished off a room which the 
derk wished to occupy and afterwards did 



occupy in a house which the plaintiff was 
building for the defendant, under a contract 
which did not include the finishing off of that 
room. Held, that from the defendant's owner- 
ship of the house and the fact that T was his 
clerk, it could not be inferred, as matter of law, 
that the room was finished off by the express 
or implied consent of the defendant, and that he 
was not liable to pay therefor. Emery v. 
Thompson, 27 Vt. 614. 

35. Where one, without any authority prov- 
ed, signs his name to a promissory note as attor- 
ney for A, a letter afterwards written to the 
payee by A, in which he speaks of the note as 
my note and promises to pay it if the payee 
will wait a certain time for payment, is in law 
an adoption of the act of the attorney, and is 
equivalent to an antecedent authority to execute 
the note. So held in an action brought Upon the 
note before the expiration of the time for pay- 
ment named in the letter. Bigelow v. Denison, 
23 Vt. 564. 

36. The defendant in March received money 
from his wife, which at the time he understood 
was received by her in payment of a debt due 
him, but which in fact was the proceeds of a 
note taken by her for such debt, and by her, 
without authority, indorsed in the defendant's 
name to the plaintiff bank, which paid her the 
money thereon. The defendant, on the 22nd 
May following, learned the true facts in the 
case, and knowing that the maker of the note 
was in failing circumstances, withheld from the 
bank the fact of#the unauthorized use of his 
name in the indorsement, until after the protest 
of the note, June 8, and retained the money. 
Held, that this was in law a ratification of the 
indorsement, and that it was error not so to 
instruct the jury. Bank of Orleans v. Fassett, 
42 Vt. 432. 

37. The plaintiff authorized her agent to 
settle a civil prosecution in her behalf for 
bastardy against one P, a married man, and the 
agent settled it by taking the note of the defen- 
dant to her therefor, and upon the additional 
consideration, as expressed in an agreement 
executed by her, that she would not institute or 
testify in any criminal prosecution against P. 
In an action upon the note, — Jield, that the note 
was illegal and void, notwithstanding the agent 
exceeded his authority in making such agree- 
ment not to prosecute, and although the plain- 
tiff signed the agreement without knowing its 
contents, supposing it to be merely a settlement 
of the civil prosecution ; for that, by receiving 
the note and putting it in suit, she in law ratifi- 
ed the acts of her agent, ihnith v. Finney, 32 
Vt. 282. 

38. The appropriation by a corporation of 
money obtained on a promissory note, executed 
as the note of the corporation by one, as agent, 
but without authority, is a ratification of his act 



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AGENT, II. 



and makes it the note of the corporation. Wind- 
ham Prao, InU. v. Sprague, 48 Vt. 502. 

39. Where A acted for and in behalf of B, 
as in the sale of B's horse, though A was in- 
terested in the sale to the extent of having all 
he could get above a named price, and B being 
informed of the terms of the contract consented 
thereto and received the proceeds of the sale, 
the warranty of A binds B as his agent, whether 
A acted by the direction and request of B, or by 
his permission merely in making the sale. Held 
erroneous, upon these facts, to leave to the jury 
the question of A's agency, or whether B adopt- 
ed and ratified the contract *^asmade an hi$ own 
aecounV Fay v. Richmond, 48 Vt. 25. 

40. Where A was agent for B in negotiating 
the piut;ha0e of a horse, and he negotiated the 
trade so far as to agree upon the price and the 
terms of payment, and paid part of the price, 
but the completion of the trade was left open 
until B should see the horse, and B afterwards, 
on seeing the horse, took it and adjusted the 
balance of the price upon the terms first agreed 
upon by A, and took a bill of sale of the horse ; 
Held, that A was so far agent of B that B was 
bound by the previous notice to A of an un 
soundness of the horse, although B had no such 
notice or information in fact. Hill v. North, 
84 Vt. 604. 

41. A put upon his farm for the use of B, his 
tenant, a yoke of oxen at an appraised value, 
the profits or loss to be divided. By mutual 
consent B sold the oxen at a price fixed upon, 
which A received. In an aittion against both 
for a false representation as to soundness, made 
by B in the aale, — Held, that both were liable, 
whether the relation between them be regarded 
as that ot partners, joint owners, or principal 
and agent, although A did not know of the un- 
soundness, or of the false representation of B, 
Ladd V. Lard, 36 Vt. 194. 

42* The defendants' agent pledged their 
credit to the plaintiffs, for goods to be supplied 
to K, their sub-contractor. The defendants 
agreed to pay therefor, if they had sufilcient 
funds in their hands belonging to K,— which they 
had. At the defendants' request, K examined 
his accounts with the plaintiffs and ' the defen- 
dants delivered a statement thereof to the agent 
who proceeded to pay part. Held, that although 
the agent might have exceeded his authority in 
the outset, the defendants by their subsequent 
acts had adopted and ratified his promise. 
Burgees y. Harris, 47 Vt. 322. 

43. An expressed disapprobation of the acts 
or authority of one who assumed to act as agent 
of another, will not prevent a subsequent ratifi- 
cation and adoption of them. Woodward v. 
Harlow, 28 Vt. 338. 

44. One B, without authority, signed the 
name of the Intestate as a subscriber for ten 
shares of the capital stock of a corporation. In 



an action upon the sul)scription,— -^<pW, that the 
subsequent declarations of the intestate to 
strangers that he had taken that amount of stock 
in the corporation, did not amount in law to a 
ratification of the subscription. They were 
only evidence. Rutland <fc Bw. R. Co., v. 
Lincoln, 29 Vt. 206. 

45. It is not the duty of a principal, upon 
learning that his special agent, or other person, 
has sold his property without authority, to seek 
the purchaser and give notice of his claim ; and 
his omission to do so, and his mere silence, are 
not ordinarily to be construed as a ratification 
of the sale. White v. Langdon, 30 Vt. 599, and 
see Strang v. EWncarth, 26 Vt. 366. 

46. Revocation by death of principal. 
The death of the principal instantly terminates 
the authority of the agent ; and alV dealings 
with the agent thereafter, although by parties 
ignorant of the principal's death, are void and 
of no effect. Datm v. Windsor Savings Bank, 
46 Vt. 728; and see Mich. State Bank v. Leaven, 
tporth, 28 Vt. 209. Mich. Ins. Oo.^ v. Leaven^ 
worth, 30 Vt. 11. Seargent v. Seward, 31 Vt. 
509. 

47. Particular agents— Steamboat cap- 
tain. The captain of a steamer on Lake 
Champlaln Is to be regarded as the general 
agent of the owners ; and prima facie the owners 
are llabl^ for all contracts for carrying made 
by the captain or other general agent for that 
purpose, within the powers of the owners them- 
selves. The ontis of proving that such contract 
was personal with the captain Is upon the 
owners; and held, that the mere fact that the 
owners permitted the captain to take the per- 
quisites for carrying parcels [as bank bills], 
was not sufl[iclent to exonerate the owners (a 
corporation) from liability as common carriers; 
— that this was an arrangement among them- 
selves. Farm. & Mechs. Bank v. Champlain 
Tr. Co., 23 Vt. 186. 

48. Clerk in Store. The clerk in a store 
was held to be the general agent of his princi- 
pal for the sale of goods, and that his sale of 
goods upon a credit bound the principal, 
although he exceeded his authority In so doing, 
where the purchaser had no notice of the limita- 
tion of the authority. Linsley v. Ixfvely, 26 Vt. 
123. 

49. Clerks In our country stores, with whom 
are left the goods and demands of our mer- 
chants, have charge of both, and, In the absence 
of their principals, have authority to receive pay 
on the demands, and to Institute suits for their 
security, when an emergency arises, and to em- 
ploy an attorney therein, and, as Incident, to 
defeat a previous fraudulent attachment, and 
thus bind their principals. Da/vis v. WcUerman, 
10 Vt. 526. 24 Vt. 96. 

50. Agent with power of sale. Where 
the plaintiff put Into the hands of a general 



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AGENT, n. 



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trader, who was also a factor employed in sell- 
ing goods for others, a lot of goods for sale, and 
also sent him other goods of like kind by mis- 
take, and not intended or received for sale, and 
the trader sold all the goods ,—Held, that the 
plaintiff could not avoid the sale as to any of 
the goods. Oiblm v. Linsley, 18 Vt. 208. 

51. K, the plaintifTs agent, holding the 
plaintifTs pn^rty with power of sale, sold it 
to S by sale which was fraudulent as to K's 
creditors, who attached it. Held, that the 
plaintifTs title passed to 8 ; that the sale was 
good as to the plaintiff, and that he had no 
remedy against K's creditors. Ih. 

52. A power of sale conferred upon a bailee 
is a personal trust, which the bailee cannot 
delegate to another. Hunt v. Douglass, 22 Vt. 
128. 

53. Sub-agent. A sub-agent employed to 
sell stoves, &c., in a given section of country, 
for cash, or other pay, or on credit, in his dis- 
cretion, is not, as such, authorized to give the 
note of his principal payable in such wares at a 
future day, and thereby bind his principal by 
the acknowledgment of '* value received." DenC- 
mm V. Tyson, 17 Vt. 549. 

54. Agent from necessity. The defendant 
bad contracted to float certain lumber of the 
plaintiff down a river and deposit it in a cer- 
tain cove, but being prevented by the owner of 
the cove from there depositing it, he left it 
fastened in an eddy below, from which it was 
swept away by a freshet. In an action for 
negligence ;—irpW, that from a contingency 
not contemplated by the parties the defendant 
became the plaintifTs agent from necessity, and 
was bound to take prudent care of the lumber 
until be had. given such notice to the plaintiff 
as to afford him an opportunity to take charge 
of it, and that until such notice it remained in 
the defendant's custody. PicluU v. Downer, 4 
Vt. 21, and see Beekteith v. Frislne, 32 Vt. 569. 

55. Notice of termination of agency. 
There are cases of a long continued agency 
where notice of a revocation of the agency is 
necessary, and where, without such notice, 
there remains such an apparent agency after 
the revocation, as will bind the principal by 
the subsequent acts of the agent as to one who 
bona fide contracts with him on the faith of his 
agency. But this principle does not apply 
where the supposed agent had originally only a 
special authority to do a particular act, or 
make a particular contract. Watts v. Ka;C' 
anagh, 85 Vt. 34. 

56. The implied authority arising from a 
general employment continues even after the 
agency has in reality ceased, as regards parties 
who have before given and continue to give 
credit to it, and who have not actuaUy received, 
and cannot be presumed to have had, notice of 
the change. Tier v, Lqmpson, 95 Vt, 179, 



57. B had been the defendant's agent in the 
peddling of stoves, but his agency had in fact 
ended. He continued the same business, hold- 
ing himself out to the world as such agent and 
dealt with the plaintiff, the plaintiff believing 
him to be still agent. B's general course of 
dealing was known to the defendant, and the 
defendant had given no notice of the termina- 
tion of B's agency. Held, that he was bound 
by B's contract with the plaintiff. Bradish v. 
Belknap, 41 Vt. 172. 

58. Mode of contracting. One having 
authority to sign the name of another to a 
paper— as, a subscription paper— may do it by 
the hand of a third person. Norwich University 
V. Denny, 47 Vt. 13. 

59. If one executes a contract under seal, 
on Ihe part and behalf of another, he must exe- 
cute it in the name and affix the seal of the 
principal. Roberts v. Button, 14Vt.204. Whee- 
look V. MouUon, 15 Vt. 519. Istiam v. Ben- 
nington Iron Co., 19 Vt. 259. MiUer v. But- 
land d Washington R, Co.^36 Vt. 452. 

60. The conveyance of a patent right by the 
deed of A, by the written consent of B, the 
owner, was held to be equally effective with a 
conveyance directly from B. Sherman v. 
Champlain Transportation Co., 31 Vt. 162. 

61. The agent of a corporation, for a debt 
of the corporation, gave a note of the character 
following : **I, A B, as agent of the G. M. T. 
corporation, promise, &c." Signed, '*A B, 
agent of the G. M T. corporation." Held, that 
this was the note of the corporation, and that 
no action lay against A B thereon. Proctor v. 

Webber, X D, Chip. 371. 20 Vt. 49. 

62. The defendants, agents of an unincorpor- 
ated company, of which the plaintiff was a 
member, in consideration of land conveyed to 
them in trust for the company, executed to 
him a note therefor, as follows: **For value 
received, we, the agents of the Wallingford 
Manufacturing Company, promise to pay C G 
R ten hundred dollars and interest till paid ; 
and this note is to be subject to such assess- 
ments as shall be made on the capital stock of 
said company, subscribed for by said R, and 
if such assessments shall not cover the full 
amount of this note, the balance to be paid in 
two years from date, but the assessments made 
are to be indorsed when they become due." — 
Dated, and signed by the defendants, adding 
the words, **Agents of the Wallingford Manu- 
facturing Company." The assessments on the 
plaintiffs subscription amounted to but part 
of the note. Held (by a majority), upon the 
facts appearing, (1), that the defendants did 
not intend to contract personally ; (2), that 
they did not exceed their authority, — and 
hence that they were not personally holden 
upon the note, Roberts v, Button^ 14 Vt, 
196. 



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AGENT, III. 



63. Joint agency. In a matter of private 
concern, or of private appointment, confided to 
more than one agent, not public officers having 
authority as such, all must Join in the execu 
tion of the power — as, conomissioners appointed 
by a town to subscribe for stock in a railroad. 
Danville v. MontpeUer, Ae., R. Co., 43 Vt. 
144. See Hodgesy. Thmher, 23 Vt. 455. New- 
eU V. Keith, 11 Vt. 214. 

III. Duties, Liabilities and Rights of 
Agent. 

1. As to his principal, 

64. The primary obligation of an agent, 
whose authority is limited by instructions, is 
to adhere faithfully to those instructions ; tor, 
if he unnecessarily exceed his commission, he 
renders himself responsible to his principal for 
the consequences of his act. Fuller v. ElUsy 
39 Vt. 345. 

65. An agent is bound by the instructions 
of his principal, only as he understood them, 
unless there was fraud, or some fault on his 
part in not comprehending them. Pickett v. 
Pearsons, 17 Vt. 470. 

66. When the character and nature of the 
business in which an agent is employed require 
^t, he should keep full, accurate and regular 
accounts of all his transactions— of his pay- 
ments and disbursements— and should render, 
at all proper times, an account thereof to his 
principal, without suppression, concealment or 
overcharge. Ordinarily, if he omits his duty 
in this particular, in a court of justice a pre- 
sumption arises against him. Prout, J., in 
Gallup V. MerriU, 40 Vt. 137. 

67. But, for a fault in these respects ;— 
Held, that he does not thereby forfeit a bal- 
ance due him, or compensation for his services. 
lb. 133. Walker v. Norton, 29 Vt. 226. 

68. An agent, authorized to sell only for 
money, is liable as for money had and received 
upon a sale, although he sells for something 
else than money. Thompson v. Babcock, Brayt. 
24. 

69. Where the defendant received the plain- 
tiff's money as agent, but afterwards denied 
the agency and claimed the money as his 
own ;—ffeld, that he could not urge in defense 
that the suit was brought without a demand 
first made. One cannot claim the privileges of 
a relation which he has repudiated. TiUotson 
V. McOrillis, 11 Vt. 477. 

70. In order that an agent to collect a debt 
should be held chargeable, in an action of ac- 
count, as having made the debt or its proceeds 
his own by reason of his negligence, the case 
must be one of gross and palpable negligence. 
PickeU V. Pearsone, 17 Vt. 470. 

71 Where an agent, on the purchase of 



goods for his principal, assumed a personal lia- 
bility for the payment, the vendor being unwill- 
ing to trust the principal ;—-fl>W, that the prin- 
cipal could not claim that their relations were 
thereby changed, so long as the agent made no 
claim as purchaser, but recognized bis agency. 
Dmc V. Warthen, 37 Vt. 108. 

72. An agent is not excused from account- 
ing to his principal for money received on sales 
of goods for his principal, although such sales, 
as between the principal and the purchaser, 
were illegal. Baldwin v. Potter, 46 Vt. 402, 
and see Thayer v. Partridge, 47 Vt. 423. 

73. Where one employs an agent, knowing 
his incompetency, if the agent does his best he 
is entitled to compensation. The defendants, 
a school district, employed the plaintiff to sup- 
erintend the repairs of the school house. He 
did this in good faith and with as much dili- 
gence and skill as he did his own business. The 
defendants knew the plaintiff's habits and abil- 
ity in this respect when fhey employed him. 
Jleld, that the plaintiff was entitled to recover 
what it was worth to him to do the work, al- 
though ^'an ordinarily skilful and shrewd 
man *' could have made the repairs for a less 
sum. Felt V. School District, 24 Vt. 297. 

74. A was agent of B for selling a patent 
right, under a contract that he was to have half 
he could get, and pay his own expenses. A hav- 
ing sold some rights and incurred expenses, the 
parties agreed that A should give up his agency 
and B would pay such expenses. A gave up 
the agency and charged B such expenses. Held, 
that the agreement was upon sufficient consid- 
eration, although B might have had a right to 
terminate the agency at will, without payment 
of expenses ; and that such expenses were re- 
coverable in an action of book account. Perry 
V. Buckman, 33 Vt. 7. 

2. As to third person. 

75. A person assuming to act as the agent of 
another without authority may be made liable 
on the contract as principal ; or, if the nature 
of the case do not admit of such remedy, 
he may be made liable for all damages by action 
on the case as for a deceit. Thus assuming to 
act is prima faci^ fraudulent. Clark v. Foster, 
8 Vt. 98. 

76. In regard to contracts under seal, this 
last may be the most appropriate, perhaps the 
only remedy. Redfield, J., in Roberts v. But- 
ton, 14 Vt. 202. 

77. In simple contracts, if an agent does 
not disclose his agency and name his principal, 
he binds himself, although he may not have in- 
tended to assume a personal liability. Royee v. 
Allen, 28 Vt. 234. 

78. An agent who undertakes to bind a 
principal by simple contract, but without au- 



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thoiity or in excess of his authority, binds him- 
self, lb, Roberts v. Button, 14 Vt. 195. Clark 
V. Fw^fr, 8 Vt. 98. 

79. An agent, whose agency is not known 
by or disclosed to the party with whom he con- 
tracts, becomes personally bound. Baldwin v. 
Leonard, 39 Vt. 260. 

80. The defendant, an agent for a school 
district, employed the plaintiff, an attorney, 
upon the credit of the district, to defend a suit 
againt the defendant, upon the mutual mistake 
that the district had authorized this and had 
assumed the defense. The defense was suc- 
cess fuL The plaintiff had made his charges to 
the district, and in a suit against the district to 
recoTer therefor had failed, on the ground that 
the defendant had no authority in fact to bind 
the district. In an action of assumpsit to re- 
cover for the plaintiff's services and expenses 
in both suits; — Held, that the services in 
the first suit, having been rendered by 
request of the defendant and for his 
benefit and under such mutual mistake, stood 
like money paid by mistake, and could be re- 
covered for, although rendered upon the credit 
of the district, and although both parties had 
the same means of knowledge as to the extent 
of the defendant's authority, as agent ; but that 
the plaintiff could not recover for his services 
and expenses in his suit against the district, 
since both parties had the same means of know- 
ing the extent of the defendant's authority, and 
these were not for the defendant's benefit. 
Paddock v. KiUredge, 81 Vt. 878. 

81. Where a contract is made which, in some 
sense, ultimately concerns others than the con- 
tracting parties, whether the one contracting is 
personally bound by certain stipulations is 
mainly a question of intention. In this case, 
held, that the defendant was personally bound. 
EintdaU v. Partridge, 14 Vt. 547. 

82. Where one requests another to render 
services for a third person, he is not necessarily 
liable for the services rendered, although such 
third person is not thereby made liable. Stone 
V. Huggintt, 28 Vt. 617. 

83. The plaintiff had a suit pending against 
a town of which the defendant was the (official) 
town agent, and, during negotiation with the 
defendant, had offered to take $60 in settle- 
ment. The defendant afterwards wrote the 
plaintiff a letter, saying : **I have concluded I 
would accept your offer and pay you the $60, 
rather than have any more trouble in the mat- 
ter ; • * please withdraw the suit and let it 
go : • * I sltall be at home Saturday and I 
will see that you have the money. Of course 
this pledge will be sufficient guarantee that I 
will pay it, &c." In faith of this, the plaintiff 
abandoned his suit. Held, that this was a per- 
sonal undertaking of the defendant, and bound 
him as such— It being conceded thut th^ defen- 



dant, as such town agent, had no authority to 
bind the town by such promise. Clay v. 
Wnght, 44 Vt. 588. 

84. Where a recovery and satisfaction had 
been had against a turnpike corporation for 
erecting a toll-house and gate on the plaintiffs 
land, which work had been done by the present 
defendants as servants and agents of the cor- 
poration ; — Held, that the defendants were not 
liable for a continuance of the nuisance,— that 
being regarded as the act of the principal, and 
they having done no act affirming the continu- 
ance. Lyman v. Dorr, 1 Aik. 217. 

85. Though there be a right of recovering 
back money paid to an agent, yet if paid over 
to his principal before notice to retain it, or 
suit brought, he ceases to be liable. Cray v. 
Otis, 11 Vt. 628. 

86. An agent who makes a promise, not 
concealing his agency nor exceeding his au- 
thority, is not liable to an action thereon. HaU 
V. Huntoon, 17 Vt. 244. 

rv. Acts and Dbglabations of Agent. 

1. As binding his principal, 

87. The defendaats sent their servant with 
a message to the plaintiff, a physician, to come 
and see a boy who had got hurt in their employ, 
and they would pay him for that visit. The 
servant delivered the message in this form — 
that the defendants told him to tell the plaintiff 
to go and see the boy and attend upon him care- 
fully and see him through it, and they would 
pay the bill. The plaintiff, upon the faith of 
this, and relying solely upon the credit of the 
defendants, attended upon the boy until his re- 
covery, the defendants knowing that the plain- 
tiff was so attending from time to time. Upon 
report of these facts by an auditor, the county 
court rendered judgment for the plaintiff for 
his entire bill ; and this judgment was affirmed 
by the supreme court. Barber v. Britton, 26 
Vt. 112. (Doubted in PraU v. Page, 82 Vt. 
19.) 

88. The plaintiff, residing in Vermont, hav- 
ing a note against the defendant residing in 
California, left it with J, his brother in Cali- 
fornia, for him to receive the payment of it. 
The defendant afterwards forwarded to the 
plaintiff a draft, as payment of the note, where- 
upon J surrendered to him the note. The draft 
was protested for non-acceptance. In a sub- 
sequent action upon the note, the question was 
whether the sending of the draft was a pay- 
ment of the note, — the plaintiff testifying that 
the note was agreed to be paid by sending 
money instead of a draft, and the defendant 
testifying the contrary. It appearing that J, 
the plaintiff's agent to receive the payment, 
was cognizant of the agreement and of the 



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AGENT, IV. 



whole transaction ;—i/eW, that the fact that 
he surrendered the note upon the forwarding 
of the draft was itself evidence tending to show 
that this was according to the agreement as to 
the mode of payment. Moore v. Quinty 44 Vt. 
97. 

89. An agent to sell goods and take notes 
therefor and transmit to his principal wrongfully 
altered such a note. In an action by the prin- 
cipal declaring upon such note as altered, add- 
ing the general counts, — Held^ in the absence 
of eyidence that the plaintiff knew or assented 
to such alteration, that the alteration should be 
treated as the act of a stranger, he clearly not 
being the plaintiff's agent to alter the note ; that 
the note was not thereby rendered inoperative, 
and a recovery could be had under the common 
counts. Bigelow v. Stephen, 35 Vt. 621. 

90. Where the defendants employed one to 
cut timber upon a certain lot, whom they 
trusted as knowing the lines, and he by mis- 
take cut some trees beyond the line on the 
plaintiff's land^ which went to the defendants' 
use '.—Held, that the defendants were liable for 
his trespass. Small v. BaU, 47 Vt. 486, and 
see HiU v. Morey, 26 Vt. 178. 

91. Demand by agent. Where a demand 
was made on the defendant by the agent in 
fact of the plaintiff, and the defendant, express- 
ing no doubt as to the agent's authority, prom- 
ised to pay ;—Held^ that he could not thereafter 
object to the sufficiency of the demand, upon 
the ground that he had no assurance of the 
agent's authority. Barron v. PeUeSy 18 Vt. 
385. 

92. Notice to agent. Notice to an agent, 
in order to bind his principal, must be in the 
same transaction. Blumenthal v. Brainerd, 
88 Vt. 402. 

93. Notice of a trust to an attorney, or 
agent, is in law notice to the client or principal, 
although such knowledge comes to the attor- 
ney or agent while acting in another and dif- 
ferent transaction— ^MZ v. Hoire, 48 Vt. 403— 
and although such attorney or agent acquired 
such knowledge, before he became attorney or 
agent of the party to be affected by such notice 
Hart v. Farm, d' Mech. Bank, 33 Vt. 262. 

94. Declarations. Where the acts of the 
agent will bind the principal, there his repre- 
sentations, declarations and admissions respect 
ing the subject matter will also bind him, if 
made at the same time and constituting part of 
the re* gest'Cf ; but the admission or declaration 
of the agent binds the principal only when it is 
made during the continuance of the agency, in 
regard to a transaction then depending,— tft 
dum fervet opus; and it is because it is a ver- 
bal act and part of the res gesUx, that it is ad- 
missible at all. Kellogg, J., in Mason v. Oray, 
36 Vt. 313. Curtis v. Ingham, 2 Vt. 287. 28 Vt. 
180. TiUotson v. McCnlUs, 11 Vt. 477. Un- 



dertPood v. Hart, 23 Vt. 120. Barnard v. 
Henry, 25 Vt. 289. Hayward Rubber Co. v. 
Duncklee, 30 Vt. 29. Austin v. Chittmden, 38 
Vt. 558. Upham v. Wh4seloek, 86 Vt. 27. Earle 
V. Grout. 46 Vt. 118. 

95. A declaration by an agent of what he is 
about to do, or has done, or a subsequent con- 
cession of what he said or did in the perform- 
ance of his agency, or any account given as of 
a past transaction, is not evidence against his 
principaL lb. 

96. On the trial of an cnidita querela to set 
aside a justice judgment rendered by default, 
for the alleged reason that the justice was not 
present within the statute two hours \—Held, 
that the declarations of the attorney of the 
plaintiff in that suit made at the time, and sub- 
sequently, that the justice was not present, 
that he had not seen him, etc., were not admis- 
sible to prove the fact of the justice's absence. 
Underwood v. Hart. 

97. Declarations of an agent, made after his 
agency has ceased, as to the terms of a contract 
made by him, are not evidence against other 
parties ; and none the more so because he has 
since deceased. Stiles v. Danville, 42 Vt. 
282. 

2. As enuring to the benefit of his principal. 

98. tlie person for whom and with whose 
funds property is bought becomes at once the 
owner of it, although the purchase is made by 
an agent in his own name, and without disclos- 
ing his agency. Bidout v. Burton, 27 Vt. 383. 
Paris V. Vail, 18 Vt. 277. HaU v. Williams, 
27 Vt. 405. 

99* An agent, authorized to sell lands and 
receive payment therefor in his discretion, 
upon sale of the lands took a note and mort- 
gage therefor in his own name, and received a 
horse in part payment. Held, that the horse 
became the property of his principal, and was 
not subject to attachment for the agent's debts. 
Waldo V. Peck, 7 Vt. 434. 

100. The plaintiff's agent purchased a cow 
for him of the defendant, avowedly as agent. 
The defendant declined taking the plaintiff's 
note therefor, but consented to the agent's tak- 
ing the cow and giving his own note therefor, 
which was done, and the note was afterwards 
paid with the plaintiff's money. Held, that the 
contract was with the plaintiff, so as to entitle 
him to maintain an action upon a warranty in 
the sale. WhiU v. Owen, 12 Vt. 861. 

101. Principal not disclosed. A receipt 
was executed by a common carrier, acknowl- 
edging to have received of A and B certain 
goods for transportation ;—Held, that there was 
nothing in the terms of the receipt to preclude 
proof that the goods were owned jointly by A, 
B and C ; and that qn suph proof m action lay 



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AGENT, IV.-^ ALTERATION ON INSTRUMENT. 



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in the names of A, B and C against tlie carrier 
for a loss of the goods, although he had no 
knowledge that C had any interest in then>. 
Day V. Ridley, 16 Vt. 48. 

102. A father and son were both named D. 
F. The father purchased land, taking the deed 
to '*D. F., Jr.," describing the grantee as of 
the town where both resided, and executed 
notes and a mortgage for part payment of the 
purchase money in the name of *'D. F., Jr.," 
saying nothing of his acting as agent for his 
son, and the granU>r supposed the father to be 
in fact the purchaser, that his name was D. F., 
Jr., and that he (the grantor) was deeding the 
land to the father. In an action of ejectment, 
the plaintiff claimed title to the lands by a levy 
and set-off on execution against the father, and 
the defendant by deed from the son. There 
being some evidence that the son had author- 
ized the father to buy the land for him and fur- 
nished the money to pay for the place, and that 
the father was in fact agent for the son in the 
transaction ; — Held, that it was properly left to 
the jury to decide which was the real principal ; 
that this did not depend upon the intention of 
the grantor ; and that the title vested in the real 
principal. PnnUss v. Blake, 84 Vt. 460. 

103. If an agent for the sale of goods sell 
them in his own name, without disclosing his 
principal, an action for the price may be main- 
tained in the name of the principal. Lapham 
v. Green, 9 Vt. 407. Squire* v. Barber, 87 Vt. 
568. 

104. Nor is the principal estopped in such 
case by the fact that he made a bill of sale of 
the property in the name of the agent, who 
was to have as a commission all above a certain 
price. Edwards v. GoldtJiff, 20 Vt. 80. 

106. An officer sold property on execution, 
which was bid in by A, and the officer made 
return that he had sold it to A. A was in fact 
the agent of B in making the purchase, but did 
not disclose this fact to the officer. Held, that 
the officer could recover the price in an action 
against B for goods sold. Carney v. Denniaon, 
16 Vt. 400. 

106. Dictum. — In contracts made by an 
agent without disclosing his principal, the suit 
to enforce them may be in the name either of 
the principal or of the agent. But, in such 
case, if the suit be not brought in the name of 
the person ostensibly contracting, it is subject 
to every defense which would obtain if it had 
been so brought. Lapham v. Green, 9 Vt. 407. 

107. One dealing by simple contract with 
an agent not disclosing his principal, may be 
made liable in a suit in the name of the princi- 
pal, to the same extent as if the agent had been 
principal and the suit had been brought in his 
name. Culver v, Btgelow, 43 Vt. 249. 

108. Where property is intrusted to an agent 
for sale, any person buying and paying in good 



faith will be protected, though the agent ap- 
propriate the avails to his own use without au- 
thority,— especially where the purchaser knows 
nothing of the agency. Cross v. HasJdns, 18 Vt. 
686. 

109. One who purchases goods of an agent 
C4innot, in an action by the principal for the 
price, set off a claim against the agent, though 
agreed to by the agent, if the purchaser had 
knowledge of the agency, or there were circum- 
stances sufficient to excite suspicion, or to put 
him upon inquiry as to the right of the agent 
to deal with the goods as his own. Squires v. 
Barber, 87 Vt. 558. 

110. And Held, in this case, that there were 
such circumstances of suspicion, viz., that Ihe 
agent was insolvent and owed the defendant 
^20, and agreed to pay this debt out of the 
price of the goods in consideration that the de- 
fendant would assist him in compromising his 
other debts, and then told the defendant that 
he did not carry on business in his own name ; 
the character of the goods sold, [a chest of tea 
and a barrel of molasses] also implying the ex- 
istence of a mercantile establishment for the 
sale of heavy groceries carried on, not in the 
name of the agent. lb. 



ALIEN. 

1. There, is no provision in the constitution 
or laws of this State for declaring the forfeiture, 
or taking the escheat of lands in this State 
owned by an alien, and no such attempt has 
ever been made. It would seem, that the right 
to interfere with aliens holding real estate in 
this country, strictly and appropriately, belongs 
to the national, and not to the State sovereignty. 
StaU V. Boston, Ac. B, Co,, 25 Vt. 483. 

2. It is not an essential qualification of a 
voter in a town or school district meeting, or of 
an office-holder of a town or school district, that 
he should be a freeman; a person of foreign 
birth not naturalized may be such voter or office- 
holder, if he have all other qualifications. 
Wooden ck v. BoUUr, 85 Vt. 682 (1868). Chang- 
ed by Stat. 1869, No. 50. 



ALTERATION OF INSTEUMENT. 

1. Material Alteration. A joint and sev- 
eral bond of three was altered with consent of 
two of them in the absence of the third, and 
afterwards, without the consent of the two, the 
obligee removed the seal and erased the signa- 
ture of the third. Held (by a majority) that 
the bond was made void as to all. Dewey v. 
Bradbury, 1 Tyl. 186. 



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ALTERATION OF INSTRUMENT.-^AMEND MENT. 



' 2. That the bond eued upon was surrepti- 
tiously ante-dated, was allowed to be pleaded in 
bar. Dams v. Cole, 1 Tyl. 262. 

3. If a promissory note be altered in a 
material point by consent of one signer, and not 
of another, it is the note of the first, and not of 
the other. Broughton v. FuUer, 9 Vt. 878. 44 
Vt. 416. 

4. If a lessee fraudulently alter his lease in 
a material part, he destroys all his future rights 
under that lease, by destroying his evidence of 
title ; and the lessor may re-enter. BUm v. Mc- 
Intyrt, 18 Vt. 466. 

5. — by a stranger. If a written instrument 
be altered in a material point by the owner or 
holder of it, without the knowledge or consent of 
the signer, the instrument is avoided, and, sem- 
ble, such alteration works a forfeiture of the 
debt represented by it. But if the alteration 
be made by a stranger without authority, the 
instrument is not thereby avoided ; — and, 
heldj that an unauthorized alteration of a note, 
made by the owner's agent to take the note, 
should be treated as the act of a stranger. Bige- 
Imc V. StUphen, 85 Vt. 621. 41 Vt. 602. 

6. Immaterial alteration. The plaintiff 
offered in evidence a sealed instrument in which 
the defendant acknowledged that he had * 'sign- 
ed" certain promissory notes. The words ''and 
executed," appeared interlined, following the 
word "signed" The paper was admitted 
against objection, and without explanation of 
the interlineation. Held correct ; and that the 
words interlined were altogether immaterial, 
not altering the legal effect. Langdon v. Paul, 
20 Vt. 217. 

7. Wherever, by the alterat ion of a promissory 
note, neither the rights nor interests, duties nor 
obligations of either of the parties are in any 
manner changed, the alteration is immaterial, 
though made by the payee. Derby v. Thrall, 
44 Vt. 418. 

8. The defendant as surety for W signed a 
note to the plaintiff, erroneously naming him 
Franklin Derby. Upon Ws delivering the note 
the plaintiff, by his consent, changed the 
name "Franklin" to the true name, Frande E. 
Held, that the alteration did not vitiate the 
note. Ih. 

9. Presumption— Evidence. The altera- 
tion of a written instrument, if nothing appear 
to the contrary, should be presumed to have 
been made at the time of its execution. On the 
usual proof of execution, the instrument should, 
without reference to the character of any altera- 
tion upon it, be admitted in evidence, leaving 
all testimony in relation to such alteration to 
be given to the jury ; and, generally, the whole 
inquiry whether there has been an alteration, 
and, if so, whether in fraud of the defending 
party, or otherwise, to be determined by the ap- 
pearance of the instrument itself, or from that 



and other evidence in the case, is for the jury. 
The whole is matter of fact, and they must 
determine it from all the testimony before them. 
Beaman v. RusmU, 20 Vt. 205. Langdon v. 
Paul, 20 Vt. 217. KimbaU v. Lamwn, 2 Vt. 
188. 



AMENDMENT. 

1. Power of Conrt to allow amendment. 
The county court has power to allow any 
amendment which does not change the parties, 
or the nature, or cause of action, unless it be 
of some statute requisite in relation to the pro- 
cess itself. BmtnMn v. fitotrell, 21 Vt. 814. 
Stevens v. HefeiU, 80 Vt. 265. 

2. —of return of process. On motion to 
dismiss a suit for defective service of the writ, 
the court decided that the suit be dismissed. 
After the decision, the plaintiff moved that the 
officer be permitted to amend his return accord- 
ing to the fact. The court, as matter of law 
and not of discretion, denied the motion. Held 
erroneous, and that it was within the discre- 
tion of the court to allow the amendment. 
Bent V. Bent, 48 Vt. 42. . 

3. An officer after return of process may, 
on application to the court, but not otherwise, 
be permitted to amend his return, provided t he 
rights of third persons will not be affected by 
it, and there is something on the record by 
which the amendment or correction can be 
made. Ther court will allow the amendment, 
or not ; and if allowed, it will be on such terms 
as the court think proper to impose. An amend- 
ment so made without leave of court was held 
of no validity. Barnard v. Stevens, 2 Aik. 
420. 

4. In trespass tried on appeal in the county 
court the defendant justified by process, but 
the return was imperfect. The county court 
refused to allow the officer to amend his return. 
Held correct; but, semble, such amendment 
might have been permitted by the justice, if it 
would not affect the interests of third persons 
and would not be false. Bratnard v. Bvrtofi, 
6 Vt. 97. 

5. The court properly refused to permit an 
officer to amend his return after the return day, 
to affect proceedings in another suit. Fletcher 
V. PraU, 4 Vt. 182. Orvt's v. Isle La MoU, 
12 Vt. 106. 

6. —of writ and declaration. A writ and 
declaration wanting in nothing but an ad dam- 
num is amendable in that particular. Lam- 
phere v. Cowen, 42 Vt. 176. 

7. In a case appealed from a justice the 
plaintiff, by leave of the county court, raised 
\i\B ad damnum from $100 to $1,000. At a 
subsequent term the defendant moved to dis- 



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miss the suit for want of jurisdiction, when 
the plaintiff, by leave of court, and before trial, 
reduced the ad damnum to the original sum. 
Held, that the writ was not **amended out of 
court," but the jurisdiction remained. WMt- 
ney v. S^am, 16 Vt. 587. 

8. The clerk of the county court by mistake 
signed a writ as *'Dep. Clerk." After plea in 
abatement that he was not deputy clerk, the 
court allowed him to amend by annexing to his 
signature the word *'C'lerk." HeH correct ;— 
for that such amendment was merely a correc- 
tion of the misdescription of the capacity in 
which he exercised the powers of clerk, with- 
out supplying any authority not already appar- 
ent upon the writ. Johnrnn v. Nmh^ 30 Vt. 
40. 

9. The defendant was sued by the name of 
"The UaTerhill Bridge Company." Its true 
corporate name was **The Proprietors of Haver- 
hill Bridge." The county court allowed the 
plaintiff to amend his writ and declaration by 
changing the designation to the true name. 
Held^ that the court had power so to do. Stan- 
ton V. Proprietors of HacerhiU Bridge^ 47 Vt. 
172. 

10. A writ and declaration against the de- 
fendant corporation sued as the *'New York 
Central Kailroad C'ompany," were allowed to 
be amended by changing this to the present 
troe corporate name, viz: The New York 
Central and Hudson River Railroad Company. 
Held proper. Ho^fordf. N. Y, Central, etc,, 
R, Co,, 47 Vt. 533. 

11. General mle. The rule established by 
the court in repeated cases, as to the power of 
the court to allow amendments, only limits it 
to the same cause of action, and form of action, 
and the same parties to the suit ; defects of any 
other character, to any extent, may be cured 
by amendment. Poland, J., in Waterman v 
Conn, & Paw. B. R. Co,, 30 Vt. 614. 

12. An amendment to a declaration may be 
made which does not change the form or nature 
of the action, or introduce a new subject mat- 
ter ; and it is no objection to an amendment 
that it may enable the plaintiff to recover, 
where he otherwise could not. Every neces- 
sary amendment does this. Skinner v. Orant, 
12 Vt. 456. (Boyd v. BctrtleU, 36 Vt. 14. Dana 
y. MeClure, 39 Vt. 197.) 

13. Instances. In an action of slander an 
amendment was allowed, by adding an aver- 
ment that the words were spoken of the plain- 
tiff as a preacher and minister of the gospel. 
Th. 

14. So, in an action brought by B on a prom- 
issory note payable to A, or bearer, an amend- 
ment was allowed averring that the plaintiff 
was the bearer. Bowman v. Stowell, 21 Vt. 
309. 

15. So, on the coming in of the report of an 



auditor, the name of one of the defendants was 
allowed, on plaintiff's motion, to be stricken 
out, such person not being in life when the 
cause of action accrued. Winn v. AveriU, 24 
Vt. 283. 

16. So, a declaration upon a promissory note 
may be amended by adding a count upon a 
count stated. Stephens v. I'hampson, 28 Vt. 
77. 

17. So, in an action of ejectment— by adding 
to the statute form an allegation of special dam- 
age done to the premises. Lippett v. KeUey, 
46 Vt. 516. 

18. A declaration containing only the gen- 
eral counts in assumpsit may be amended by 
adding a count upon a parol submission and 
award. Trescott v. Baker, 29 Vt. 459. 

19. Where the declaration in an action 
upon a judgment misdescribed it in some par- 
ticulara, but not so as to wholly destroy its 
identity,— -^<pW, that the misdescription could 
be corrected by an amendment. Stevens v. 
HewiU, 30 Vt. 262. 

20. In assumpsit against husband and wife 
to recover for the indebtedness of the wife ac- 
crued before marriage, the declaration may be 
amended so as to aver that the debt accrued be- 
fore coverture. Montgomery v. Mayna/rd, 33 
Vt. 450. 

21. New counts may be added to a declara- 
tion by amendment, which allege an enlarge- 
ment of the time of performance of a contract. 
HiU V. Smith, 34 Vt. 535. 

;. And in trover, a new count may be add- 
ed for additional property taken at the same 
time with the other. Haskins v. Ferris, 23 Vt. 
673. 

23. So, a declaration in covenant, counting 
for a breach of the covenant that the premises 
were free of incumbrance, whereas they were at 
the date of the deed subject to a certain mort- 
gage, after demurrer sustained on the ground 
that the covenant did not pass to the pUiintiff 
as a subsequent grantee, was allowed to be 
amended by a new count declaring upon a 
covenant in the same deed to warrant and 
defend the premises against all lawful claims 
and demands, and setting up the establishment 
by decree of court of the same mortgage as a 
paramount, title ; and this, although the rule of 
damages in the two cases was different. Boyd 
V. BartleU, 86 Vt. 9. 

24. It is no objection to an amendment, 
that it sets up the cause of action in such man- 
ner as to take the case out of a statute of limi- 
tations applicable to the original declaration. 
As where the declaration was the common 
counts in assumpsit only, and a specification of 
the claim described a promissory note, to which 
the defendant pleaded the statute of limitations 
of six years, the plaintiff was allowed to aban- 
don his original declaration, and to file a new 



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AMENDMENT. 



count declariDg upon the note as a witnessed 
note. Dana v. McClure, 89 Vt. 197. 

25. On the question of amendment, in de- 
termining whether the amendment introduces a 
new cause of action, the court is not confined 
to the question of legal identity upon the 
pleadings, hut may go into extraneous evi- 
dence to show that it is the same cause of ac- 
tion in fact. Hill v. Smith, 84 Vt. 585. It is 
to a great extent a question of fact, depending 
on the purpose and intent of the plaintiff in 
bringing the suit and framing his original de- 
claration. Boyd V . BartlfUy 86 Vt. 12. The 
party may always amend by more correctly 
describing the cause of action *' intended to be 
declared on." ffoMns v. Ferris^ 28 Vi. 678. 
Tr€90oU V. Baker, 29 Vt 468. 

26. Where the plaintiffs are named only by 
their firm name, as '* Marshall A. Lewis & 
Co.,'' or "Homer, Bishop & Co.," the indivi- 
dual and full names of the partners may be 
supplied by amendment. Lewis v. Locke, 41 
Vt. 11. 

27. Amendment allowed in a declaration 
counting upon a several promise, by adding a 
count upon a joint promise, and therein sug- 
gesting that the other joint promissor resides 
out of the State. (G. 8. c. 80, s. 74.) Carter 
V. Hosford, 48 Vt. 483. 

28. After the filing of a referee's report, 
bi;t before judgment, the plaintiff was allowed 
to raise the ad damnum of his writ. Held, 
within the power of the county court. Harris 
V. BeVden, 48 Vt. 478. 

29. Discretion limited. Where a proceed 
ing depends on the discretion of the court be- 
low, guided by the particular circumstances of 
the case, and not on any certain and known 
rule of law, it is not subject to revision in the 
supreme court on exceptions. But if the power 
be exercised (as in granting a new trial or an 
amendment), in a case where the court by law 
has no power to grant it, it is error. Carpenter 
V. Oookin, 2 Vt. 495. (Boumany. Stowell, 
21 Vt. 818.) 

30. Instances. Thus, to allow the amend- 
ment of a declaration which changes the form 
of action, or introduces a new count for a new 
cause of action not contained in the original 
declaration, is error. lb, 

31. So, to permit an amendment which 
changes the parties, and, at the same time, the 
cause of action. Emermm v. Wilson, 11 Vt. 
357. 

32. In a case appealed from a justice, 
where, upon the papers,Hhe justice has no juris- 
diction, no amendment can be made in the 
county court so as to give a jurisdiction. 
Thompson v. Colony, 6 Vt. 91. 

33. Where either the name of the surety, or 
the sum in which he is bound, is omitted in 
the minute of the recognizance upon the writ, 



the court, by force of the statute, has no power 
to amend the defect. Peek v. Smith, 8 Vt. 
265. 

34. A certificate, defective in stating the 
day, month and year when a qui tarn writ was 
signed by the magistrate [stated as erhibited] 
cannot be amended so as to comply with the 
statute. Pollard v. Wilder, 17 Vt. 48. 

36. The direction in a writ cannot be amend- 
ed, after the entry of a suit in court, by insert- 
ing the statute reasons for authorizing a person 
to serve it. Bolbear v. Haneoek, 19 Vt. 888. 

36. The county court has no power, on a 
trial, to permit a sheriff to amend his return 
updta an execution which has been returned by 
him to the clerk's office, so as to render such 
execution, as amended, evidence in the caae. 
Paul V. Slason, 22 Vt. 281. 

37. Gases appealed. The whole power 
of the county court to- allow new declarations 
to be filed in appealed cases rests upon its 
general power and authority to allow amend- 
ments of the process and proceedings pending 
in court. 8t^>ens v. Hemtt, 30 Vt. 262. 

38. The court on appeal may allow new 
counts to be added for the same cause of action, 
but not for what is, in fact, a new or distinct 
cause. Keyes v. Throop, 2 Aik. 276. 

39. A declaration before a justice described 
a note as payable to A B, or bearer. On appeal, 
the plaintiff was properly allowed to file a new 
declaration omitting the words *'or bearer," 
to make it correspon<Mo the truth and prevent 
a variance. Bucklin v. Ward, 7 Vt. 196. 

40. The form of action is not changed 
merely by changing its name ;— as from ** tres- 
pass'' before the justice to *' trespass on the 
ease'* in the county court. The cause of action 
stated at length is deemed the true one, and not 
the name by which it is called. CoggsweU v. 
Baldwin, 15 Vt. 404. 

41. The filing of a new declaration on 
appeal is mere matter in amendment. If vari- 
ant from the former and containing new mat- 
ter, the defendant should object to its being re- 
ceived : it is not matter for abatement. Way 
V. Wakefield, 7 Vt. 228. 

42. The objection that a new declaration 
filed in the county court, on an appeal, seU up 
a new or other cause of action, or varies the 
cause or form of action from that before the 
justice, must be taken advantage of by a mo- 
tion to dismiss the new declaration, or by an 
objection to receiving it, —otherwise the objec- 
tion is waived. Held, that the objection was 
not reached by a special demurrer for that 
cause. Blodget v. Skinner, 15 Vt. 716. 

43. In a suit before a justice, the declara- 
tion was only for goods sold and delivered. 
Held, that on appeal the plaintiff could not re- 
cover for work and labor, under a new declara- 
tion containing the common counts in assump- 



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AMENDMENT. 



2d. 



sit, although the account for work and labor 
was mixed in with the account for goods sold, 
and the plaintiff intended that his writ should 
be for the whole account. Dettey v. Nicholas^ 
44 Vt. 34. 

44. Acquiescence in an amendment. An 
amendment whicli the court has no power to 
make may be acquiesced in ; — as, by afterwards 
pleading to the merits without reserving excep- 
tions to the amendment. Peck v. Smith, 8 Vt. 
366. 32 Vt. 639. 

45. Effect of amendment. The necessary 
effect of overruling an amendment to a declara- 
tion, once allowed, is to restore the proceeding 
to its original state. Barber v. Ripley, 1 Aik. 
80. 7 Vt. 327. 11 Vt. 858. 

46. —by relation. A new count, in the 
nature of an amendment to a declaration, re- 
lates back to the commencement of the suit ; 
so that a plea to such new count, that the cause 
of action did not accrue within 14 years before 
**the filing of the new declaration," was held 
bad on demurrer. Dana v. MeClure, 39 Vt. 
197. 

47. — as to time. Independently of any 
showing of the day on which an amendment of 
process was procured to be made in the county 
court, it will be taken to have been made on 
the last day of the term. Bums v. N. Bank of 
8L AB)an8, 46 Vt. 369. 

48. Where the plaintiff procured an amend- 
ment of his writ on the last day of the second 
term, and the defendant within thirty days 
thereafter filed his motion' to dismiss the action 
for causes arising from the amendment ;—Held, 
that it was not error for the court, at the suc- 
ceeding term, to entertain the motion and dis- 
miss the action. lb. 

49. --as to bail. Where an amendment 
does not make the bail liable to a greater sum, 
nor subject him to any new or additional re- 
sponsibility, he is not thereby discharged, 
though the amendment be by a new count, and 
the recovery be upon that. Wri{fht v. BrowneU, 
3 Vt. 435. 

50. Amendment'to conform to verdict. 
The declaration counted for an injury to the 
plaintifTs grist-mill, saw-mill and lath-mill 
and machinery and premises by the stopping 
of the flow of water thereto. The jury found 
specially that the plaintiff's right of water 
claimed was limited to the grist-mill. The 
court then before judgment allowed the declar- 
ation to be amended to correspond with the 
verdict. Held correct. Kimball v. Ladd, 43 
Vt. 747. ** Any court, &c., may at any tme 
permit either of the parties to amend," &c. 
O. a, c 30, s. 41. Dana v. MeClure, 39 Vt. 
201. 

51. In an action by husband and wife for 
an injury to the wife, the plaintiffs were per- 
mitted, after verdict and motion in arrest and 



hearing thereon, but before judgment, to amend 
their declaration by striking out an allegation 
of expense and loss of service to the husband,— 
the trial having proceeded solely for damage to 
the y^'ife i—Jfeld, no error. Bates v. Cilley, 
47 Vt. 1. 

52. Amendment of verdict. Tlie court 
has power to correct an informality in a ver- 
dict, even after the jury are discharged— as, 
where in an action of assumpsit the jury ren- 
dered a verdict of *' guilty," audit wasdmnged 
by the county court to " did assume and prom- 
ise," &c. Foster v. Caldwell, 18 Vt. 176. So, 
where in an action of book account before a 
justice, the jury returned a verdict that the 
defendant did assume and pTomiae— ruled, that 
the justice might have corrected the verdict 
and recorded it in proper form. Mason v. Law- 
rence, 3 Vt. 560. 

53. A genera] verdict for the plaintiff in an 
action of ejectment was corrected by the su- 
preme court to conform to the truth— it appear- 
ing by the bill of exceptions that the defendant 
had an Interest in the premises. Warren v. 
Henshmt, 2 Aik, 141. 18 Vt. 180. 

54. No7i-assumpsit and the statute of limita- 
tions pleaded, and issues joined ; — no evidence 
given on second issue ;— verdict for plaintiff on 
first issue, without noticing the second. The 
court, at a subsequent day in the term, on 
motion, ordered the verdict amended so as to 
embrace both issues. Held correct. Dims v. 
Hoy, 3 Aik. 303. 

55. —of judgment. Record of judgment in 
the supreme court amended upon motion, under 
a rule. Lottry v. Oatb'n, 3 Vt. 865. , 

56. Where a husband and wife were joined 
as defendants in ejectment, where the wife's 
title was not involved, and judgment passed 
against both, the supreme court aUowed the 
plaintiff to amend, on terms, by striking out 
the name of the wife, and affirmed the judg- 
ment against the husband. Mattocks v. Stearns, 
9Vt. 826. • 

57. —after judgment. After the affirmance 
of a judgment for tie defendant In an action of 
assumpsit upon the judgment of another State, 
the court refused to allow an amendment, 
changing the action to debt— the court being 
divided as to whether such amendment . was 
allowable, upon any terms. Boston India Rub- 
ber Co, V. Hoit, 14 Vt. 9%—qucere suggested. 

58. An amendment after judgment, upon 
the facts as they stood before the amendment, 
cannot render the judgment erroneous. An 
amendment may cure error, but cannot create 
it. }¥hite River Bank v. Downer, 39 Vt. 383- 

59. Power of court to revise and correct 
its records. It is a power incident to a court 
of general jurisdiction, independent of any 
statute, to exercise a revisory power over its 
own records, and, by a direct inquiry into the 



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AMENDMENT.— ANIMALS. 



matter, to correct the record according to the 
truth, and prevent the unjust operation of an 
erroneous or imperfect record. This is usually 
done on motion founded on affidavits and no- 
tice, in a summary way, in the sound discretion 
of the court, where the furtherance of justice 
requires it. Moaseaux v. Brigham^ 19 Yt. 457. 
Pettes V. Montagvs, cited 36 Vt. 449. SoaU v. 
Stewart, 5 Vt. 57. 

60. This power exists to set aside a default, 
Scott V. StetDoH ; or the levy of an execution, 
Ac. TVdor V. Taylor, 26 Vt. 444. 

61. The county court, within certain limits, 
has such power over its records and judgpients 
as to warrant the court in ordering them cor- 
rected, and, if necessary, for sufficient reasons, 
to order a case after final judgment to be 
brought forward, and to vacate that judgment 
and open the case for further proceedings. 
This is ordinarily so far a matter of discretion, 
that the supreme court will not revise the pro- 
ceedings on exceptions. Peck, J., in Stmth v. 
Howard, 41 Vt. 74. 

62. The plaintiff had obtained final judg- 
ment in the county court in an action of assump- 
sit, on which he was entitled to an execution 
against the body. By inadvertence, the execu- 
tion was issued against the goods, chattels and 
lands only, and -was returned nulla bona. At 
the next term, on the plaintiff's petition, the 
county court vacated the judgment and ren- 
dered a judgment for the same damages, adding 
interest. The avowed purpose of the proceed- 
ings was to enable the plaintiff to procure a 
new execution against the body, so as to charge 
the \^\ on the original writ. Held erroneouB ; 
and that the motion should have been denied 
on the very ground on which the plaintiff 
prayed to have it granted, that is, the charging 
of the bail. lb. 

63. The original phiintiff died pending his 
suit and the same was prosecuted to judgment 
by his administrator, and execution issued in 
the name of the-deceased plaintrff, and was 
delivered to an officer and returned in such way 
as, upon a proper execution, to charge the 
property attached. The county court after- 
wards, on the motion of the administrator, 
allowed tlie execution to be amended by the 
clerk. Held, that this was error ; and, on the 
ground mainly, that such amendment miglU 
charge the officer or his bailees, who were 
already discharged by reason of the defect in 
the execution. AUeji v. Thrall, 41 Vt. 79. 

64. It is not competent for the county court, 
after judgment, to order the case brought for- 
ward and to hear evidence and adjudicate a 
fact and engraft into the record material state- 
ments, for the mere purpose of reviving a lien 
[as a mechanic's lien] that has lapsed and be- 
come extinct as against purchasers and owners 
of the estate who acquired title after such lien 



had lapsed and terminated. Haynes v. Kimp- 
Urn, 47 Vt. 46. 

66. Amendment in criminal cases. The 
complaint of a town grand juror may be amend- 
ed by leave of court — like an information or 
indictment by those who presented them, with 
leave of court. StaU v. Baidielder, 6 Vt. 479. 
(Enlarged by stat. 1870, No. 5.) 

66. —on appeal from probate court. On 
an appeal from the probate to the supreme 
court, the court refused to allow the referee, 
appointed by rule of the probate court, to 
amend his report. Wolcott v. Wokott, 11 Vt. 
207. 

67. In what court motion to be made. 
On the remanding of a case to the county court 
for a new trial, an application for leave to 
amend pleadings should be made to the county 
court. AUen v. Parkhurst, 10 Vt. 557. 

68. Record of town clerk. The refusal 
of the court to allow a town clerk to amend a 
town record was held not a judicial act, and so 
not tlie subject of error,— for the right of the 
clerk to correct his record did not depend upon 
the opinion of the court. Hoag v. Jhtrfey, 1 
Aik. 286. 



ANCIENT LIGHTS. 

Long continued use of light for the windows 
of one's dwelling, standing on or near the line 
of his land, raises no presumption of a grant, 
nor creates the right to a continued use against 
the owner of the adjoining land. The English 
doctrine of ancient lights discussed, and denied. 
Hubbard v. Toiiyn, 33 Vt. 295. 



ANIMALS. 

1. Duty to restrain vicious animals. It 

is the duty of the owner of a vicious ram, who 
knows of the propensity of the animal to butt 
persons, so to restrain him as to prevent him 
from doing injury. Oakes v. Spaulding, 40 Vt. 
347. The same law as to a dog accustomed to 
bite mankind. Brown v. Carpenter, 26 Vt. 
638. 

2. The defendant, the owner of a cow accus- 
tomed to hook horses, and that known to him, 
was made liable for the hooking of the plain- 
tiff's colt while the cow was in the highway, 
but upon the plaintiff's land on her way to 
water, and the co\t had been turned loose in 
the highway by the plaintiff. Ooggswell v. 
Balditin, 15 Vt. 404. 

3. The fact that a mare, in general kind and 
orderly, but which, when in heat, had on sev- 
eral occasions kicked at other horses, imposes 



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ANIMALS. 



31 



no duty on the owner to restrain her when not 
in heat. Tnpper v. Clark, 48 Vt. 200. 

4. Dog. A dog may be used in driving off 
cattle tresi>a88ing upon one's lands, and, if so 
done in a prudent and careful manner, the 
owner is not responsible for an injury done by 
the dog to the cattle. Clark v. Adanis, 18 Vt. 
425. Davis v. CampbeU, 23 Vt. 236. 

5. Held, that it is lawful for any person, 
though not in^lf. defense, to kill a dog accus- 
tomed to bite mankind, as communis hostis or a 
common nuisance, when such dog is at large— 
that is, not confined or physically restrained. 
Brown v. Carpenter, 26 Vt. 638. 

6. Bam. O and S were the owners in com- 
mon of a vicious ram, known by each to have 
the habit of butting persons. The ram was 
kept for the separate use of both, each having 
the immediate charge of him from time to 
time as occasion required. The ram had been 
with the flock of S until the sheep- washing, 
when, both flocks being washed together, O, of 
his own accord and in the absence of S„ took 
the ram and put him in his own pasture, 8 not 
thereafter interfering, or inquiring to know 
where or in what manner O was keeping the 
ram. While so in the pasture of O, running at 
large, the ram butted the plaintiff and injured 
her. Held, in an action against O and S for 
the injury, that S was lUble equally with O. 
Oakes v. Spaulding <Sb Oakes, 40 Vt. 347. 

7. Barrett, J. No distinction can be made, 
as to the duty of restraining a vicious animal, 
between sole and joint owners ; and what is the 
duty of one is equally the duty of the other, as 
to third persons ; and, unless under peculiar 
circumstances, the duty rests solely upon own 
ership. Jb, 352. 

8. Statutes. The forfeitures under sec- 
tions 4 and 6 of G. S.. c. 104, "for the restraint 
of rams," are distinct and independent and may 
both be enforced ; and by the same person, if 
he be both the owner or keeper of the sheep and 
the person taking up the ram. Town v. Lam 
phire, 34 Vt. 365. HaU v. Adams, 2 Aik. 130. 

9. In case of distinct and several owners of 
sheep running in the same flock, either owner, 
without joining the others, may sue for the 
penalty given by statute against the owner or 
keeper of a ram found with them. HaU v. 
Adams. 

10. Where several rams, having escaped to- 
gether and belonging to separate owners, are 
found off the inclosure of the common keeper 
of them and with the sheep of another, each 
owner is liable to the penalty of $5 for the 
escape of his own ram under G. S., c. 104, s. 
6. Whether the keeper would be liable for 
more than one penalty, — qumre. Totbn v. Lam- 
phire, 87 Vt. 62. 

11. The penalty imposed by G. S. c. 104, 
t. 6, is incurred, if the ram is found off its 



owner's or keeper's premises and with the sheep 
of another, unless it is made to appear that this 
was caused by some positive wrongful act of 
the prosecutor himself, or could not have been 
prevented by the utmost care and diligence of 
the owner or keeper. Town v. Ijamphire, 36 
Vt. 101. 8, C. 37 Vt. 52. Hall v. Adams, 1 
Aik. 166. Phelps v. Parish, 39 Vt. 516. 

12. The neglect of the prosecutor to main- 
tain and keep in repair his portion of the divi- 
sion fence through which the ram escaped, does 
not affect or qu^ify this liability (36 Vt. 101) ; 
although the prosecutor had said he would see 
that his part of the fence was properly up and^ 
would risk the ram's getting out over it— it not 
appearing that the defendant had acted upon 
this assurance so as to create an estoppel. 37 
Vt. 52. 

13. Suffer to run at large. Under the 
statute which provided that if any person 
should «ujr<?r his swine to run at large, &c., 
they might be impounded ;—/r^W, that an 
avowry was insufficient which alleged only 
that the swine " were running at large," «&c., 
'^contrar}"^ to the form," &c., **of the statute 
entitled," &c.— the word suffer, or its equiva- 
lent, being omitted,— that word meaning to 
aUow, or permit Adams v. Nichols, 1 Aik. 
31& 

14. The defendant on several occasions rode 
his horse from his house along the highway, 
mostly off his own premises, through a village 
and over two railroad crossings at grade, to a 
distance of more than a mile and a half, and 
then fastened the reins to the surcingle so that 
the horse could not get its head down to feed, 
and left it to go back home alone, and went on 
himself about half a mile further, and out of 
sight of the horse, to his work. The horse was 
kind, and would when thus left go directly 
home, and did on these several occasions and 
on the occasion in question, when it was met 
by the defendant's son who was waiting to 
meet and care for it. In an action for the pen- 
alty under G. S. c. 100, s. 29, for suffering 
cattle, &c., to run at large in the highway ;— 
Held, that if the horse, owing to his training, 
habits and instincts, would not wander abou^ 
the highway when thus left, but would and did 
on such occasions go directlv home, and was so 
under the supervision, care and control of the 
defendant and his son, this was not a *' running 
at large," which subjected the defendant to the 
penalty. Russell v. Cone, 46 Vt. 600. 

15. Joint action. A joint action upon the 
statute to prevent injury to sheep by dogs, 
does not lie against two separate owners of 
dogs for the damage done by them together. 
Adams v. Hall, 2 Vt. 9. 

16. G. S. c. 104, s. 9, allows the several 
owners of dogs concerned jointly in the worry- 
ing, &c., of sheep to be joined as defendants, 



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32 



ANIMALS.— APPEAL, I, H, III. 



but does not require it. Rowe v.' Bird, 48 Vt. 
678. 
As to impounding animals, see Pounds ; Rb- 

PLKVIN. 



APPEAL. 

I. Effect in Gbnkral. 
II. Appeal from County Court. 

III. Appeal from Justice of the Peace. 

1. Taking an appeal, 
2 From what judgment. 
8. Tn what coMtt. 
4. Proeeeding$ after appeal. 

IV. Appeal from Probate Court. 

1. What order or decree may he 

appealed from. 

2. Who may appeal. 

8. Mode of appeal, and procedure 

thereafter. 
4. Appellate court as a court of 

probate. 

I. Effect in General. 

1. Vacates the Judgment. An appeal 
vacates tlie judgment appealed from. Bate^y. 
Kimball, 2 D. Chip. 83. Loi>e v. Este^, « Vt. 
286. Probate CouH v. Rogers, 7 Vt. 198. Allen 
V. Fletcher, 14 Vt. 274. FleUher v. Blair, 20 
Vt. 124. Allen v. Rice, 22 Vt. 883. Small v. 
Haskins, 26 Vt. 209. Steams v. Steams, 30 
Vt. 213. Probate Court v. Gleed, 35 Vt. 24. 
State V. Remelee, 35 Vt. 562. Woodbury v. 
Woodbury, 48 Vt. 94. 

2. If the appeal is carried up by neither 
party, this operates as a discontinuance. Bates 
V. Kimball. Love v. Fstes. Allen v. Fletcher. 
Probate Court v. Oleed. 

Note.— By Stat. 1865, No. 10, as to criminal 
cases, and by stat. 1866, No. 87, as to civil 
cases, an appeal from a justice only suspends 
the judgment unless the appeal is entered ; and 
by Stat. 1864, No. 65, the party appealing from 
a decree or denial of the probate court, or from 
the allowance or disallowance of commission- 
ers, may withdraw his appeal before entrj', 
the effect of not entering the appeal, in the first 
case, and of withdrawing it, in the last, being 
to affirm the original judgment or decree. 

3. Brings up whole case. An appeal 
vacating the judgment appealed from, brings up 
the whole case and opens it for new proof to the 
extent of the jurisdiction of the court below, 
upon the original complaint or declaration. 
State V. Remelee, 35 Vt. 562. 

4. Judgment of respondeat ouster on a plea in 
abatement, and. trial thereafter on the merits,— 
on appeal, the question in abatement will be 
beard. Lacy v. Roberts, Brayt. 20. 



5. Affirmance. A judgment is affirmed on 
appeal where it passes for the appellee, though 
for a less sum than below. Page v. Johnson, 
1 D. Chip. 338. S. C. Brayt. 124. 

6. Dismissal of appeal. The dismissal of 
an appeal annuls the appeal ah initio, and leaves 
the judgment appealed from in force as though 
never appealed from. Loveland v. Benton, 2 
Vt. 621. 

II. Appeal from County Court. 

7. Practice. An appeal, on cause shown, 
may be allowed to be entered after the day 
fixed by the rules of court, and even after a 
complaint for aflSrmance. Bennet v. Whitney, 
1 Tyl. 59. Miller v. Ooold, 2 Tyl. 405. 

8. An appeal from the county court to the 
supreme court and an entry of such appeal was 
allowed to each party. Hastings v. Hodges, 1 
D. Chip. 124. 

9. The entering of a review by one party did 
not prevent an appeal by the other. Hubbard 
V. Leonard, 1 D. Chip. 216. 

10. Where one of several joint defendants 
appeals from a judgment in ^ prosecution under 
the forcible entry and detainer act, he is con- 
sidered as appealing for all, and all may appear 
and plead. Hurlbutt v. Meachum, 2 Tyl. 397. 

11. A parol submission to arbitration, pend- 
ing an appeal, without an award wholly settling 
the controversy, nor carrying the hearing beyond^ 
the time for entering the appeal, was held not 
to deprive the party of the right to enter the 
appeal. Hayes v. Blanchard, 4 Vt. 210. 

12. On an appeal from the county to the 
supreme court ;— Ruled, that the defendant 
might change the issue from the court below to 
the jury m the supreme court, without notice 
to the other party. Stanton v. Loyd, 1 Aik. 
35. 

13. Subjects of appeal. Under former 
statutes, a judgment discharging trustees be- 
cause the principal was not an absconding, &c., 
debtor, wtis. held subject to an appeal to the 
supreme court. Page v. Hurd, 1 Aik. 105. 
Also a judgment by nil didt. Smith v. LaTig- 
worthy, 1 Aik. 106— and judgment on demurrer, 
that a plea in bar is sufficient. Durkee v. Mayo, 
1 Aik. 129. 

NoU.—By Stat. 1824 (Slade's Stat. 118), the 
right of appeal to the supreme court for the 
trial of issues of fact was taken away. Ques- 
tions of law now pass to the supreme court only 
on exceptions, or by writ of error. 

III. Appeal from Justice of the Peace. 

1. Taking an Appeal. 

14. The entering of bail is a part of the tak- 
ing of an appeal from the judgment of a justice, 



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and this muat be done within the two hours, or 
the appeal is irregular. Wehb v. HopkinMn, 10 
Vt. 544; and see Finney v. HiU, 11 Vt. 288. 
Arnold v. Brooke, 86 Vt. 204. 

15. Where a party had notice of a suit be- 
fore a justice, and sent his son to appear for 
him and take an appeal, and the son appeared 
and consented to a judgment, but through mis- 
apprehension, neglected to enter bail in sea- 
son for an appeal, and execution issued upon 
the judgment;— ITif/^f, that he was not entitled 
to relief by petition under the Act of 1829, for 
haying been * 'illegally refused'* an appeal; 
and judgment c<yntra below was reversed. Fi7i- 
nqf V. JKK. 

2. From whctt judgment. 

16. "Where a justice upon a hearing and 
trial rendered a judgment that the plaintiff be- 
come non mdt ;—Heldy this being a trial upon 
the merits, that an appeal lay from the judg- 
ment ; that its character was not changed by 
misnaming it. Smith v. Crane, 12 Vt. 487. 

17. A judgment by a justice in favor of the 
plaintiff for costs alone, although clearly irreg- 
ular, is such a judgment as either party can ap- 
peal from. MeDanieU v. Johnson, 36 Vt. 687. 

3. In what ease^, 

18. A prosecution founded on the Act of 
1807, 8. 8, entitled **an act to punish undue 
speculations,'* &c., was held appealable. Pen- 
niman v. Robingon, 5 Vt. 569. 

19. An appeal does not lie from the decision 
of a justice, under the statute, that an extent 
issue against a collector of taxes for delin- 
quency. Oriswold v. RuUand, 28 Vt. 324. 

20. As depending on amount in contro- 
versy. Where the ad damnum in a justice 
writ is over ten dollars, the suit is appealable 
by either party, irrespective of the real amount 
of the claim presented. Fuller v. Howard, 6 
Vt. 561. 

21. In actions of tort— as trover — where the 
damages are open and uncertain, the right of 
appeal from a Justice Is to be determined by the 
ad damnum in the writ ; and where this is set at 
ten dollars, the case is not appealable, though 
the value of the property named in the declara- 
tion is set at more than ten dollars, and the 
plaintiff's evidence may be that it was worth 
more. (G. S. c. 81, s. 70.) Cole v. Ooodall, 
89 Vt. 400. See Church v. Vandueee, 4 Vt. 
195. 

22. Fictitiotl8 ofliBet. A suit is not made 
appealable by the pleading of a fictitious offset, 
—as where the defendant introduces no evi- 
dence to sustain it, nor excuse therefor. Bnish 
Y. Hurlbwrt, 8 Vt. 46. 

23. Where the ad damnum in a justice writ 



was ten dollars, although the declaration was 
in two counts each claiming ten dollars, but 
presumed to be for the same subject matter, 
and where there was nothing in the plaintiff's 
written exhibit or specification, or by the 
declaration itself, showing that the demand was 
above ten dollars ,—Held, that the action was 
not appealable, and could not be made so by a 
fictitious plea in set-off. Weston v. Marsh, 12 
Vt. 420. 

24. Exhibits. Whenever the plaintiff's spec- 
ification or exhibit, in an action before a jus- 
tice, exceeds $10, so that the defendant has 
the right to litigate matters described in it to an 
amount exceeding $10, the action is appealable ; 
and this right of appeal the plaintiff cannot 
limit by demanding not more than $10 in his 
writ and declaration. WUUnms v. Mason, 45 
Vt. 372. Church v. Vanduzee, 4 Vt. 195. Conn. 
A Pass. M. R. Co. v. Bates, 82 Vt. 420. 

25. The defendant subscribed for one share 
of the plaintiffs' stock, and thereby contracted 
to pay the plaintiffs $100 in ten equal instal- 
ments, no part payable till the performance of 
a condition precedent. In an action before a 
justice, the declaration set forth this contract, 
averred performance of the condition, and 
claimed to recover the first instalment under an 
ad damnum of ten dollars. Held, that the ac- 
tion was appealable. Conn. <fe Pass. R. R. Co. 
V. Ba^^s. 

26. In general assumpsit before a justice, 
the ad damnum in the plaintiff's writ and the 
sum demanded in the declaration was ten dol- 
lars. The debit side of the plaintiff's specifi- 
cation on trial was $88.82, and the credit side 
$82.16, leaving a balance of $6.66— for which 
balance, with 80 cents interest, the plaintiff ob- 
tained judgment. Held, that by reason of the 
specification, or exhibit, the action was ap- 
pealable. Williams v. Mason, A^ Vt. 872. 

27. In an action of book account before a 
justice, there was nothing in the writ, nor in 
the specification or exhibits produced by the 
plaintiff on trial, which made the case appeal- 
able. The defendant, on cross-examination, 
called out the plalntiff^s book, on which ap- 
peared charges, in all, exceeding ten dollars. 
Held, that the book, drawn out in this way, 
could not be regarded as the plaintiff's exhibit, 
and that the case was not thereby made appeal- 
able, — the judgment, in such case, being a bar 
to a recovery for the items not presented. War- 
ren V. Newfane, 25 Vt. 250. 

28. Burden on appellant. A party ap- 
pealing from a justice judgment must show 
afllrmatively that the county court has appel- 
late jurisdiction. Where the declaration con- 
tained three counts, each concluding with an 
ad damnum of ten dollars, but all descriptive 
of a single transaction and apparently for one 
cause of action;— -HifW, that the case was not 



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APPEAL, HL 



appealable. Persons v. Center T, Co,, 20 Vt. 
170. 

29. Action on note. Under the statute 
disallowing an appeal from a justice in any 
action upon a note» &c., of less than $30 ;— 
Held, that an appeal lay, nevertheless, where 
an offset was pleaded and tried, the subject 
matter of which would have entitled the parties 
to an appeal, if the action had been brought 
upon it. Baker v. Blodget, 1 Aik. 342. 

30. A justice suit upon a note exceeding 
twenty dollars, but indorsed below ten dollars, 
the ad damnum in the writ being ten dollars, 
where no plea in offset is filed, is not appeal- 
able under the act of 1821. Boardman v. Har- 
HngUm, 9 Vt. 151. G. S. c. 31, s. 70, has the 
same construction. Sumner v. Jones, 24 Vt. 
320. 

31. An appeal lies from a justice in an ac- 
tion upon a promissory note for less than $20, 
made payable with interest, when the amount, 
by adding interest, exceeds $30. Smith v. 
Smith, 15 Vt. 620. 

32. An action before a justice upon a prom- 
issory note given for more tlian $20, although 
indorsed below $20, but not below $10, where 
the ad damnum in the writ exceeds $10, is ap- 
pealable. Sumner v. Jones, 24 Vt. 317. Tyler 
V. lAUkrop, 5 Vt. 170. 9 Vt. 152. 15 Vt. 622. 

33. In a justice suit the declaration counted 
upon two promissory notes, both amounting to 
less than $20, and had a count for $20 money 
had and received ^[od damnum $20]. On 
trial, the plaintiff offered in evidence only the 
two notes, and waived the money count. Held, 
that the case was not appealable. Cooper v. 
MUes, 16Vt. 642. 

4. Proceedings after a^ppecU. 

34. Tender of judgment. After an appeal 
from a justice judgment, the tender of a con- 
fession of judgment before the same person, 
but who was not then in office as a justice, is 
nugatory, and will not avail to prevent an 
affirmance- Smith v. Fisher, 17 Vt. 117. 

35. Payment. Where the plaintiff ap- 
pealed from the judgment of a justice against 
him, and more than twelve days before the 
term of court to which the appeal was taken 
paid to the defendant (or to the justice), accord- 
ing to the statute, the costs allowed to the de- 
fendant, and the appeal was not entered in the 
county court ; — Held, that this operated as a 
retraxit, or an open and voluntary renunciation 
of the suit and cause of action, and was a bar 
to a further action or claim for the same cause 
or duty ; and that, to this extent, the effect was 
the same as if the judgment had been affirmed 
in the county court. CcUMn v. Taylor, 18 Vt. 
106. Small v. Haskins, 26 Vt. 209. 

36. In such c&aey—Held, that the judgment 



of the justice in an action of trespass qua. elau, 
where the title to land came in question, was 
not conclusive of the title, inasmuch as the 
judgment was vacated by the appeal, and such 
payment did not, in this respect, operate as an 
affirmance. Small v. H($sklns, 

37. Entry of appeal. An appeal from a 
justice takes the case to the county court as it 
stood before the magistrate, and it stands upon 
the same pleadings [as, a plea in abatement], 
unless new pleadings are filed. WhiUaker v. 
Perry, 37 Vt. 631. 

38. The Act of 1866, No. 37, relating to 
appeals from judgments of justices, does not 
abridge the right of the appellee under G. S. c. 
31, s. 64, to enter the appeal for affirmance. Ide 
V. Story, 47 Vt. 62. 

39. Certificate of " wilAil and maUd- 
ous." Where the party appealing from a jus- 
tice judgment does not enter his appeal in the 
county court and the judgment is there affirmed 
on the complaint of the appellee, it is affirmed 
with all its incidents, among which is the adju- 
dication that the cause of action arose from the 
wilful and malicious act of the defendant, &c. 
Reynolds v. Promn, 31 Vt. 637. 

40. Held, that where a justice judgment, 
appealed from by the defendant, is brought into 
the county court by the plaintiff on complaint 
for affirmance, the court can only uflirm the 
judgment as rendered, and cannot grant a cer- 
tificate for a close jail execution where none 
was granted by the justice. SpaukUng v. 
Woodworth, 42 Vt. 570. Barrett, J., dissent- 
ing. 

41. Copies of appeal papers. An appeal 
from a justice, entered in the county court upon 
appeal papers not properly certified (as, by the 
county clerk instead of the justice), gives the 
court jurisdiction, so that, notwithstanding a 
motion to dismiss, the cause may be continued 
and amended copies filed, and the court may 
proceed to trial and judgment. Carruth v. 
Tighe, 32 Vt. 626. lb. 778. See Ooodenow v. 
Stafford, 27 Vt. 487. Orange v. Bill, 29 Vt. 
442. 

42. An appeal from a justice will not neces- 
sarily be dismissed on motion, where the appeal 
copies do not disclose the right of appeal, since 
such right may grow out of the character of the 
defense, which may not appear in the copies ; 
and the presumption is in favor of the regularity 
of the appeal, until the contrary is shown. 
Johnson v. Williams, 48 Vt. 565. 

43. New copies of appeal from the judg- 
ment of a justice cannot be filed in the county 
court in vacation, after final judgment on the 
copies originally filed, so as to make them part 
of the record, — not even by the allowance of 
the county judges. Wood v. Davis, 48 Vt. 
319. 



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85 



rv.' Appeal fbom Peobate Cofbt. 
1. What order or decree may be appeaied from, 

44. Final order and effect. The order, 
sentence, decree or denial of the probate court 
from which an appeal lies must be a final one— 
that is, it must be a final disposition of the 
subject matter before the court. An appeal 
from the main question takes with it all inci- 
dental orders, and makes the whole, in effect, 
the subject of revision. Adams v, Adams, 21 
Vt. 162. 

45. Interlocutory. From a proceeding in 
the probate court, under G. S. c. 52, s. 7, for 
the examination of a party charged with em- 
bezzling the goods, &c., of an estate, no appeal 
lies until the case is finished in that court. An 
appeal from an order that the party answer 
certain interrogatories is premature, and will be 
dismissed. KimbaU v. KimbaU, 19 Vt. 579. 

46. A decree of the probate court, that an 
administrator ought to render his account, is 
not a final decree from which an appeal lies in 
the first instance, but is rather interlocutory ; 
thou^ it affords a sufficient basis for a sui^ 
upon the bond conditioned to perform the 
orden of the court. French v. Winsor, 24 Vt. 
402. 

47. An order of the probate court, refusing 
to accept and record the report of the commis- 
sioners of claims, being matter of discretion, is 
but interlocutory, and is not such a final decree 
as is the subject of an appeal. Hodges v. 
Thaeher, 28 Vt. 465. 

48. An appeal does not lie from the pre- 
sentation of a contingent claim to conmiission- 
ers of an estate, but only from the subsequent 
allowance, or disallowance. Hobart v. Herriek, 
28 Vt. e27. 

49. An order of the probate court renewing 
a commission of claims on an estate is strictly 
interlocutory, and no appeal lies until the com- 
ing in and acceptance of the commissioners' re- 
port Timothy V. Farr, 42 Vt. 48. 

50. Special case. The refusal of the pro- 
bate court, on petition, to reopen and revise a 
former decree allowing an administrator's ac- 
count, which petition was preferred after the 
thne for an appeal from such decree and a de- 
cree for distribution had passed, was held, 
under the circumstances, to be the subject of 
an appeal. Adams v. Adams, 21 Vt. 162. 
Vt. 720. 

51. PersoniJ discretion. A bequest was 
made to a trustee to be applied to the benefit of 
the eesttti que trusty as ^ould be found neces- 
sary in the judgment and discretion of the judge 
of probate for the district of H ;—Held, that 
Uie judge of probate in the exercise of his judg- 
ment and discretion acted personally, and not 
ofDdaUy, — that no new- jurisdiction was con- 



ferred upon him, and that no appeal lay from 
his proceedings. Doumer v. Dovmer, 9 Vt. 231. 

52. Gkiardian. By the probate act of 1821 
(Slade's stat. 883, s. 7) an appeal lies from an 
appointment by the probate court of a guardian 
to an idiot, non compos, &c. Shumway y. 8kum- 
way, 2 Vt. 889. 8 Vt. 390. 

53. An appeal does not lie from the decree of 
the probate court refusing to appoint a guardian 
of a person alleged to be insane, nor from a de- 
cree discharging such guardian, on the ground 
that the ward is no longer a proper subject of 
guardianship. Nimblei v. Chaffee, 24 Vt. 628. 

54. Homestead. Proceedings for setting 
out the homestead of a deceased housekeeper, 
for the benefit of his widow and children, fall 
within the general jurisdiction of the probate 
court in the settlement of estates ; and a right 
of appeal is given, under the general provisions 
of G. 8. c. 48, 8. 30, from an order or decree 
confirming the report of the commissioners in 
setting out the homestead. Byram v. Byram, 
27 Vt. 296. True v. MorrUl, 28 Vt. 672. 

2. Who may appeal. 

55. Party "interested." Under the statute 
authorizing any person "Interested in any order, 
&c." of the probate court to appeal therefrom, 
such person must have some legal interest 
which may, by such order, &c., be either en- 
larged or diminished,— as, heir, creditor, lega- 
tee, widow, administrator, &c. Woodward v. 
Spear, 10 Vt. 420. Hemmenwayy, Corey, 16 Vt. 
225. 

56. A person who has no interest in an 
estate cannot appeal from the decree of the 
probate court, assigning dower in the land which 
he claims adversely. Hemmemcay v. Corey. 

57. The administrator of an heir to an estate 
has the same right of appeal from commission- 
ers, as the heir would have had if living. Ar- 
nold V. Waldo, 36 Vt. 204. 

58. Under G. 8. c. 53, s. 27, an appeal from 
conunissioners, other than by the executor or 
administrator, can be taken only by a creditor, 
devisee, legatee or heir ; and by such only in 
case the executor or administrator declines to 
appeal. Such interest of the appellant, as 
found by the probate court, must appear upon 
the record sent up ; but such finding is not con- 
clusive and may be inquired into on appeal. 
Gilbert V. Hotoe, 47 Vt. 402. 

59. The intestate's widow, being administra- 
trix of his estate, married, whereby her authori- 
ty was extinguished. Thereupon the intestate's 
children applied to the probate court for the 
appointment of P as administrator de bonis non, 
and the widow applied for the appointment of 
her then husband. The court appointed P. — 
Held, that an appeal lay by the widow. HH- 
Uard V. McDanieU, 48 Vt. 122. 



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APPEAL, nr. 



8. Mode of appeal^ and procedure thereafter. 

60. The application. Where an appeal 
from a decree of the probate court is prayed for 
and the bond given within the 20 days, the ap- 
peal is not lost by the court's neglect beyond the 
20 days to allow the appeal. Cummings v. 
Hugh, 3 Vt. 578. 

61. An application for an appeal frotai com- 
missioners, under G. S. c. 58, s. 19, is ''filed in 
the register's office," if duly left with the judge 
of probate. Robinmn v. RoMnnon, 82 Vt. 788. 

62. An appeal from the probate court was 
left at the residence of the judge between 11 
and 12 o'clock at night of the last day for tak- 
ing an appeal, and the appeal was filed and 
lodged in the register's office on the morning 
following. It not appearing that the appeal 
came to the possession and knowledge of the 
judge until such following morning, it was 
dismissed, as not taken in time. Robineon v. 
Robinson. 

63. After the appeal bond is taken, approv- 
ed and filed, and the appeal has been allowed, 
the probate court has no power to permit the 
cancelling of such bond by substituting another. 
Blake v. Kimball, 22 Vt. 682. 

64. Stating objections. On an appeal 
from the decree, &c., of the probate court the 
appellant should state, in writing, his objections 
thereto, and this lays the foundation for all 
further pleadings and proceedings. Howe v. 
PraU, 11 Vt. 256. Baker v. Goodrich, 1 Aik. 
895. (See G. 8. c. 48, s. 80, and aeq.) 

65. No precise form of excepting to the 
order or decree appealed from has been estab 
lished. It is necessary that every substantial 
averment upon which the appellant relies should 
be made, and such as are not denied are of 
course considered as admitted. Kendrick v. 
Harris, 1 Aik. 273. 

66. Appellant from an entire decree of the 
probate court, which embraced distinct matters, 
was held confined, on his appeal, to the matters 
complained of in his objections filed. Banfill 
V. BanfiU, 27 Vt 557. 

67. Witlidrawing an appeal. Where an 
appeal was taken from the appointment of an 
administrator and a paper was afterwards filed 
in the probate court by the appellant withdraw- 
ing the appeal, which was not entered in the 
county court;— Held, that the appeal operated 
as a mere suspension of the decree of appoint- 
ment, and that, upon such discontinuance of 
the appeal, the power of the administrator re- 
vived and took e£fect from the date of his ap- 
pointment. Fleteher, v. Fletcher, 29 Vt. 98. 

68. Probate of will— Inteirening dam- 
ages. Where an appeal from a decree of the 
probate court allowing a will was taken subse- 
quent to the issuing of letters to the executors;— 
Held, that the powers of the executors ceased 



at once, and that the appointment of a special 
administrator, pendente lite, became necessary ; 
and where, in such case, the decree was afllrm- 
ed on appeal ; — Held, that the expenses of the 
special administration, beyond what would have 
been necessary if the estate had been settled by 
the executors without an appeal, are * 'interven- 
ing damages" within the meaning of the appeal 
bond. Sargeant v. Sargeant, 20 Vt. 297. 

69. But that the words, * intervening dama- 
ges and costs occasioned by the appeal," did not 
cover the expenses of the appellee in following 
the appeal, beyond his taxable costs. lb, 

70. Quardian. A claim in behalf of a non 
eompon, having no guardian, was presented to 
commissioners, which they disallowed for want 
of authority in the person presenting it. That 
person was afterwards appointed guardian and 
took an appeal. Held, that such appeal was an 
adoption and ratification of the act of present- 
ment and, on motion to dismiss, the appeal was 
held regular. Thurston v. HoJJbrook, 81 Vt. 
354. 

71. Notice of appeal. Where an appeal 
from the probate court is entered in the appel- 
•late court without giving the appellee the re- 
quired statute notice, the practice is not to dis- 
miss the appeal, but to continue the case, order- 
ing notice to be given. Woodward v. Spear, 
10 Vt. 420. Meexih v. Meech, 37 Vt. 414. 

72. But this is matter of discretion, not 
revisable on exceptions. Treamrer v. Ra/g- 
fmmd, 16 Vt. 864. Rutland dt Bur, R, Co, v. 
Wales, 24 Vt. 299. 

73. Objection waived. An objection to 
the competency of commissioners appointed by 
the probate court to set out dower, cannot be 
urged on an appeal from a decree accepting 
their report. Kendrick v. Harris, 1 Aik. 278. 

74. An objection that an appellant from a 
decree of the probate court had not sufficient 
interest to entitle him to an appeal the county 
court is not bound to consider, when first taken 
after issue joined and the trial begun. Stevens 
V. Jopal, 48 Vt. 291. 

75. Appeal from commisifioners. An 
appeal does not lie from the disallowance by 
commissioners, to an amount exceeding $20 in 
the aggregate, upon two or more several and 
distinct claims, required to be presented in the 
names of several parties, although both claims 
are owned by the same party, where the dis- 
allowance on each is less than $20 ; as where 
one claim was in favor of A and B, and the other 
in favor of A and C, and A owned and present- 
ed both. Barlmo v. T/traU, 11 Vt. 247. 

J76. In taking an appeal from the allowance 
by commissioners of a claim against an estate, 
minuteness and precision are not required in 
stating the objections ; and if, instead of being 
manifestly frivolous and impertinent, they tend 
to show that the claim ought further to be liti- 



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gated, it must belong to the court of probate 
to determine whether they are stated in terms 
sufficiently positive and definite. Where the 
objection stated was that the claim was unjust, 
and the probate court allowed the appeal, — 
Heldy that the county court erred in dismissing 
the appeal on motion, for want of a written 
statement of objections. Barnard v. Barnard, 
16 Vt. 223. 

77. The prayer for an appeal **frora the 
decision and report of commissioners of claims" 
(G. 8. c. 53, s. 19), was Jield sufficient, where ex- 
pressed to be ** from the order and decree of the 
probate court " — the court having made a decree 
accepting the report and ordering it to be re- 
corded. Robinson v. Robinson, 32 Vt. 788. 

78. An appeal from conuniswoners under 
G. S. c. 58, 8. 27, is not perfected without the 
giving of a bond as well to secure the estate as 
the adverse party, and if the bond be only to 
secure the adverse party, the appeal will be 
dismissed,— and this upon moUony if the defect 
appear upon the record ; nor can the defect be 
supplied by the filing of a new bond in the 
county court. Arnold v. Waldo, 36 Vt. 204. 

79. A report of commissioners was returned 
to the probate court and endorsed, ** Filed, ac- 
cepted and ordered to be recorded this 3l8t 
May, 1860." Afterwards, this entry was made 
thereon, **On re-examination of this report, it 
is rejected for errors therein found and sent 

1)^k to the commissioners for correction this 
15th day of August, 1860." The plaintiff after- 
wards presented his claim to the commission- 
ers, and, within twenty days from the final re- 
turn and acceptance of the report, took an 
appeal. HM, that the appeal was taken in 
due time ; that the probate court had power of 
its own motion, and summarily, to annul the 
order of record, and to recommit the report, on 
account of errors apparent on its face, so long 
as it was not actually recorded. Adarene v. 
Marloft, 33 Vt. 558, and see Hodges v. Tkacher, 
2S Vt. 456. 82 Vt. 739. 

80. Appeal not entered. On the allowance 
of mutual claims by commissioners of an estate, 
the administrator appealed from the allowance 
against the estate and duly filed his objections. 
The appeal was not entered at the next stated 
session of the county court. Held, that the ad- 
ministrator could not at a later term enter a 
complaint for an affirmance of the allowance in 
favor of the estate, or for his costs;— that by the 
neglect of both parties to enter the appeal at the 
first term, the whole proceedings were discon- 
tinued; and that the claim against the estate 
was forever barred ; — as to the effect of such 
proceedings upon the claim allowed in favor of 
the estate, qwBre. AUen v. Fletcher, 14 Vt. 274. 

81. Where an appeal was taken from an 
allowance of commissioners, but was entered 
by neither party;— -ffeW, that no action lay 



upon the appeal bond— the appeal vacating the 
judgment, and the non-entry of the appeal oper- 
ating as a discontinuance of the suit and carry- 
ing the bond with it — and this, although the 
appellee had no notice of the appeal and no 
order of notice was made by the probate court. 
Probate Court v. Gked, 35 Vt. 24. 

82. Declaration. On appeal from com- 
missioners, the court allowed the claimant, 
upon terms, to file a declaration, where he had 
omitted to do so in the probate court, as re- 
quired by statute. Franms v. Latkrope, 2 Tyl. 
372. 

83. On an appeal from commissioners, the 
claimant must declare according to the nature 
of the several classes of his demands, in the 
several forms of action and counts appropri- 
ate to each, though resulting in different forms 
of trial ; and these must be met by various 
pleas suited to their nature. Adams v. Corbin, 
3 Vt. 372. AbboU v. Keith, 11 Vt. 526. 

84. Brings up whole claim. Where all 
the items of the plaintiffs claim before com- 
missioners were recoverable in one suit and one 
form of action and he appealed, but the appeal 
taken was general ; — Held, that the appeal 
brought his whole claim before the county 
court — as well the items allowed, as those dis- 
allowed. Morse v. Low, 44 Vt. 561. 

85. — and set-off. An appeal by a claim- 
ant from the allowance by commissioners of an 
offset to his claim, vacates the decision and 
opens the case, both as to the offset and the 
principal claim. Steams v. Steams, 30 Vt. 
213. Woodlmrt/ v. Woodbury, 48 Vt. 94. 

86. The effect is the same where the admin- 
istrator appeals from the allowance of the claim 
presented— or filed objections under the Stat. 
1821. (Slade's Stat. 354.) AUen v. Rice, 22 
Vt. 333. 

87. Bvidence. Where the commissioners' 
report does not show what claims were ex- 
hibited, this may be shown on appeal by evi- 
dence aliunde. Woodbury v. Woodbury, 48 Vt. 
94. 

88. Bail in appellate court. On the grant- 
ing of an appeal from conmiissioners on petiti- 
tion to the supreme court, bail for the appeal was 
entered in that court. Wing v. Bates, 16 Vt. 
148. 

89. Creditor appealing. Where a credi- 
tor of an estate took appeals, under the statute, 
from the allowance by the commissioners of 
claims against the estate presented by the ad- 
ministrator and others, and prosecuted such 
appeals at his own expense and succeeded, and 
costs were awarded ; — Held, that such creditor 
was entitled to the costs; and the administrator 
having received the costs and executed releases 
therefor, chancery decreed that he pay the 
same to such creditor. Sutton v. Svtton, 21 
Vt. 74. 



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APPEAL, IV.— APPRENTICE. 



4. Appelate Court as a Court of ProbcUe. 

90. In appeals from the probate court, the 
proceedings will conform to the practice of that 
court. Wadmoorth v. Ffusett, 2 Tyl. 127. 

91. An appeal from the probata court to the 
supreme court brings the whole case before that 
court, to be determined upon its merits, as the 
supreme court of probate. SnUth v. Rix, 9 Vt. 
240. (Since changed by statute— appeals lying 
only to the county court, and exceptions as to 
■ *all questions of law" arising in the county 
court *Mn probate matters" passing to the su- 
preme court. G. 8. c. 48, ss. 28. 29. Hutch- 
inson v. Hutchinson, 88 Vt. 708. ' Clark v. 
Clark, 21 Vt. 490.) - 

92. The jurisdiction of the county court, as 
an appellate court in probate matters, is meas- 
ured only by the extent of the jurisdiction of 
the probate court, and extends over all nuitters 
within the jurisdiction of the probate court, for 
the rehearing and re-examination of aU subjects 
which have been acted upon in that court. 
Adams v. Adams, 21 Vt. 162. Boyden v. Ward, 
88 Vt. 628. 

93. On appeal from the probate court, the 
county court acts as a higher court of probate, 
and may revise all questions resting in discre- 
tion, as well as others ; as, the removal of an 
administrator. Holmes v. Holmes, 26 Vt. 586. 
Adams v. Adams. Hilliard v. McDaniels, 48 
Vt. 122. 

94. Supreme court. Although matters 
resting in the discretion of the probate court 
pass to the county court upon appeal, they can- 
not be revised in the supreme court, not being 
questions of law. Phelps v. Phelps, 16 Vt. 78. 
Adams v. Adams, 21 Vt. 162. Frost v. Frost, 
40 Vt. 626 ;— as, for the refusal to reconsider, 
revise and alter a decree of distribution after 
the time for an appeal had passed. Hutchinson 
V. Hutchinson, 88 Vt. 700. 

95. Administrator's accomit. An appeal 
from the allowance of an administrator's ac- 
count opens every item of the accounts for ex- 
amination, whether or not presented or objected 
to in the probate court ; and the commissioners 
should report each item, and whether allowed 
or disallowed, and the facts found as the reason 
of their decision. Barker v. Rogers, 2 Vt. 440. 

96. On such appeal, either party may pre- 
sent any proper claim, whether presented in the 
probate court, or not. Clark v. Clark, 21 Vt. 490. 

97. Oertiiicate of decision. The certifi- 
cate to iht probate court of the final decision 
uppn an appeal, as required by the statute, is 
designed to furnish notice to that court of the 
general result of the appeal, so that its subse- 
quent action may be in conformity to such de- 
^cision,' rather than to restore jurisdiction to it. 
The want of such certificate, therefore, is not a 
legal bar to further proceedings in the pro- 



bate court, though upon subjects affected by the 
decision of the appellate court ; and the probate 
court can nevertheless act with effect, if its ac- 
tion is warranted by the law and the fact as 
they really exist at the time. Chreen v. Clark, 
24 Vt. 186. 

For Appeals in other cases, see the appropri- 
ate titles, as Pauper ; Hiohwats ; Chanoebt, 
Ac. 



AFPBENTIOE. 

1. Relation created by deed. The rehu 
tion of master and apprentice can be created 
only by deed. Squire v. Whipple, 1 Vt. 69. 7 
Vt. 450. Holgate v. Cheney, Brayt. 158. 

2. A agreed by parol to bind his son to ap- 
prenticeship to B by written indentures, and 
put the son to service with B before executing 
the indentures. The boy left service, after 
having received necessary articles and instruc- 
tion, and A then refused to execute the inden- 
tures. Held, that B could recover of A, on the 
general counts in assumpsit, for the articles and 
services so furnished the son. Squires v. Whip- 
ple, 2 Vt. 111. 

3. Death of master. An indenture of ap- 
prenticeship becomes not void, but merely void- 
able by the death of the master. Phelps v. 
Culver, 6 Vt. 480. ^ 

4. An apprentice bound out by the over- 
seers of the poor is assignable without his con- 
sent, and may be retained in the service of an 
administrator after the death of the master, 
with the assent of the overseer. Hf. 

5. Revocation. Where an indenture of 
apprenticeship becomes voidable on election, 
the apprentice cannot recover for services imder 
the indenture rendered before revocation, over 
and above benefits received. lb, 

6. Nor can the master recover for excess of 
expenses incurred above services rendered, be- 
fore revocation. Hudson v. Warden, 89 Vt. 882. 

7. The plaintiff, at ten years of age, was 
bound out by his father as an apprentice to the 
defendant until the plaintiff should become 
twenty-one. He served under the indenture 
until he was sixteen, when he went into the 
State of New York and there enlisted as a sol- 
dier in the U. S. army and went into military 
service, as a substitute for one 0, from whom 
he received therefor $825, which he forwarded 
to the defendant. In an action to recover this 
money ; — Held, that, as the indenture, on the 
defendant's arriving at the age of fourteen, be- 
came, at least, voidable at his election, the 
leaving and enlisting and going into the military 
service was an abandonment of the indenture, 
and in law a revocation of it, and that the plain- 
tiff could recover. /^. 



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8. Harboring. One may lawfully harbor 
and employ an apprentice who has left his mas- 
ter's senrice, though without cause, even after 
notice from the master not to harbor or employ 
him, if the master for any cause refuses to take 
back the apprentice. Conant v. Raymondy 2 
Aik. 243. 

9. In ease for harboring the plaintiff's ap- 
prentice, knowledge by the defendant of the 
apprenticeship must be proved, and the measure 
of damages is the injury sustained by the plain- 
tiff ; while in asgumpm't for the services of the 
apprentice, such knowledge is not material, and 
the measure of damages is the value of the ser- 
vices to the defendant. Such action is a waiver 
of the tort. lb. 

As to binding out pauper children, see Pau- 
PKR I. 



ABBITBATION. 

Gbnsral Powbbs of Arbitkators and 

THSiR Proceedings. 
Revocation. 

Award,— Pttft&«i<fi>n; Validity; Con- 
struction; Effect; Setting cmde, dtc. 
rV. Action on the Award. 



II. 
III. 



I. General Powers of Arbitrators and 
Tn EiR Proceedings. 

1. Their meetingB. A declaration upon 
an award was ?ietd ill, where it set forth a sub- 
mission to five, the award to be made by a 
majority, and an award made by three, but did 
not aver that the other two were notified, nor 
that they attended. BUn v. Hay, 2 Tyl. 804. 

2. Where a submission required that the 
award should be made by the arbitrators, or a 
majority of them ; — HeJd, that all must be pres- 
ent at the hearing, but that this fact need not 
appear upon the face of the award ; if denied, it 
might be proved otherwise. Eixford v. j^ye, 
20 Vt. 132. 

3. In case of a written submission to three 
persons named, and if either one of them could 
not be obtained, to accept another person nam- 
ed ; — Held, that an award made by the four, 
acting by the mutual consent of the parties 
given on the day of hearing, was good . Blan- 
chard v. Murray, 16 Vt. 648. 

4. Umpire. It is no objection to an award, 
that the umpire was appointed before the arbi- 
trators entered upon the business, nor that .the 
umpire joined with the arbitrators in making 
the award. Woodrow v. a Conner, 28 Vt 
776. 

5. Pottponemeilt. The power of arbitrators 
18 not determined by their neglect to attend at 
the time and place appointed for heading the 



arbitration ; but they may appoint another ses- 
sion within any reasonable time, unless prevent- 
ed by a revocation, or by the terms of the sub- 
mission. Hwrrington v. Rich, Vt. 666. 

6. Oorrecting mistake. An arbitrator 
may, after publishing his award, correct a cleri- 
cal mistake in it — as, by inserting the word 
'^dollars," manifestly omitted by mistake, &c. 
Goodell V. Raymond, 27 Vt. 241. 

7. Awarding costa. By early and general 
practice adopted in this State, the rule must be 
considered settled, that it is incident to the au- 
thority given to arbitrators, in a general sub- 
mission, where no mention is made of costs, to 
awafd concerning the costs of arbitration. 
Bowman v. DowTier, 28 Vt. 582. Ha/wley v. 
Hodge, 7 Vt. 240. But see contra, especially as 
to fees of the arbitrators, Morrison v. Buchan- 
an, 32 Vt. 289. 

8. Proceedings. It is not necessary that 
arbitrators should follow the rules of law in 
taking evidence, or in other matters, to make 
tlieir award good. While governed by their 
own judgment, without corruption or partiality 
in their proceedings and decisions, the parties 
being present^ or having a fair opportunity to 
be present at all hearings, the award should 
stand. Sainn v. Angell, 44 Vt. 528. 

9. It is no objection to an award, that neith- 
er the arbitrators nor witnesses were sworn, 
where the parties agree that they need not be, 
or where the law of the place does not require 
it. Woodrow v. CConner, 28 Vt. 776. 

10. Sunday. Although a judgment ren- 
dered on Sunday is void at common law, an 
award of arbitrators is not a judgment, and an 
award published on Sunday is not for that rea- 
son void, where the submission did not require 
this to be done, and the parties had no agency 
therein and did not act in violation of the 
statute. Blood v. BaUs, 81 Vt. 147. Sargeant 
V. Butts, 21 Vt. 99. 

11. Revocation. 

11. Every submission to arbitration, though 
by deed and declared irrevocable, may be revok- 
ed before award and publication, and such re- 
vocation annuls all contracts relative to the sub- 
mission, and leaves the other party solely to 
his redress upon the bond or agreement of sub- 
mission. Aspimrall v. Tousey, 2 Tyl. 828. 

12. Where a party to a written submission 
niade a parol revocation, and thereupon the ar- 
bitrator declined proceeding ; — Held, in an action 
upon the submission, that the defendant could 
not dispute the revocation because not in writ- 
ing. Hawley v. Hodge, 7 Vt. 287. 

13. An express revocation of a submission 
must follow the form of the submission. If the 
submission be by deed, the revocation must be / 
under seal ; if by writing, thep so must be tb? 



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ARBITRATION, III. 



revocation ; and if simply by parol, then it may 
be 80 revoked. Sutton v. Tj/rrell, 10 Vt. 91. 

14. The entry and continuance of a cause 
in court, before an award made under a sub- 
mission which provided that all pending suits 
should be discontinued, without B&y\ng when, 
was held not to work a revocation of the sub- 
mission. — What is an implied revocation, or 
revocation in law, see 7*, 

15. A letter sent to the arbitrator by one of 
the parties "objecting to any decision of the 
case," until furnished with a copy of the brief 
of the counsel of the other party according to 
an agreement of counsel, is not a revocation, 
but only a request for delay ; and the arbitrator 
may proceed to make a binding award, although 
such copy was not furnished, the counsel of 
each party having furnished the arbitrator his 
brief. Kft/es v. Fvlton, 42 Vt. 169. 

16. The revocation of a submission is a 
breach of the condition of an arbitration bond 
to observe, perform and keep the award. 
CrafUbury v. Hill 28 Vt. 768. 

17. One party to a submission by bond legally 
revoked it by deed, but the other party got an 
award made in his favor not withstanding, which 
the revoking party paid, but releases were not 
executed as the award provided. Held, that 
such payment was not per se a waiver of the re- 
vocation. Hathaitay v. Strong, 2 Tyl. 106. 

18. A parol agreement to alter the terms of 
an arbitration bond so as to include in it an ad- 
ditional subject of dispute, although omitted 
by mistake, was held not to merge or supersede 
the bond; and that a revocation of the agree- 
ment, which had not been so acted upon by the 
dther party as that such revocation would oper- 
ate as a fraud upon him, did not excuse him 
from not performing the bond. Patrick v. 
Adams, 29 Vt. 370. 

III. Ky^kKD—puhUcaUon ; validity; comtruc- 
Uon ; effect ; setting aside, &c, 

1^. What is an award. An award on a 
parol submission was held binding, although the 
parties supposed, and were so advised by the 
arbitrator, that the award would not be legally 
binding, as the submission was not in writing ; 
—the court finding that the parties did in fact 
agree to abide the award. Ennos v. Pratt, 26 
Vt. 630, citing Howard v. Puffer, 23 Vt. 865.* 

20. Wliat is not. Parties left out a matter 
of difference to others, introducing no testi- 
mony, but one of the parties made a statement. 
The referees, after retiring to consult, reported 
that they had agreed, but that neither party 
was to be bound by their determination and 
would be under no obligation to abide by it. 
The plaintiff said he would hear what they had 
to say and then determine ; and the referees 
thereupon ajinouQced their conclusion. Hel4, 



that the action of the referees was intended to 
be, and was, in fact, merely advisory, and had 
no binding force as an award. Sartwell v. 
Horton, 28 Vt. 370. 

21. Publication. An award is made and 
published when the terms of the submission, in 
these respects, are complied with. The delivery 
of an award to the party entitled to it, or notice 
to him that it is ready to be delivered, and of 
its contents,, is a publication ; and is sufficient, 
unless the submission requires something more. 
Morse v. Stoddard, 28 Vt. 446. Biitford v. 
Nye, 20 Vt. 182. 

22. A bond of submission provided that the 
arbitrators should ''make and publish their 
award in writing under their hands and seals." 
The arbitrators so made their award, and in- 
formed the attorney of the recovering party of 
its contents. Held, that this was a sufficient 
publication under the submission, and that the 
submission could not be thereafter revoked by 
the other party, although he had not been in- 
formed of the award. Morse v. Stoddard. 

23. Award as to real estate. A pending 
action of ejectment, and controversy as to the 
seizin and possession of land, may be the sub- 
ject of arbitration, and may be awarded. 
Blanchard v. Murray, 15 Vt. 648. 

24. An award of arbitrators in writing and 
under seal, concerning the title of lands, made 
in pursuance of a submission under seal, be- 
comes part of the contract, and a court of equity 
will decree a specific performance as of any 
other contract under seal ; and the award re- 
quires no subsequent ratification by the parties. 
Akely v. Akely, 16 Vt. 460. Jb. 694. 

25. An award as-to a division line between 
adjoining proprietors, made upon an oral sub- 
mission, if of any validity, has no greater effect 
than a parol agreement of the parties. To be 
conclusive, it must be acquiesced in for 15 
years. Smith v. Bullock, 16 Vt. 692. 

26. The owners of contiguous pieces of 
land, each acknowledging the sufficiency and 
validity of the title by which the other holds 
his land, may bind themselves by their written 
submission and an award, though not sealed, 
as to the location of the dividing line ; and each 
will be estopped from afterwards denying that 
as being the true line. Stewart v. Cass, 16 Vt. 
668. 

27. Parol award. A parol award is good 
though the submission be in writing, unless the 
submission provide to the contrary. Marsh v. 
Packer, 20 Vt. 198. GoodeU v. Raymond, 27 
Vt. 241. 

28. U. 8. revenue stamp. No U. 8. rev- 
enue stamp was required upon an award of ar- 
bitrators. CeUey v. Gray, 87 Vt. 186. 

29. Award mnst follow submission. The 
parties agreed to exchange farms, the differ- 
ence in price to be paid to either according to 



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ARBITRATION, HI. 



41 



the award of appraisers agreed upon, calling 
the orator's farm $5,000 ; but if, in the opinion 
of the appraisers, that was overvalued or under- 
valued, the defendant's farm should be valued 
in the same proportion. The appraisers ap- 
praised the farms at their real value and award 
ed to the orator the difference, which was much 
less than the difference by the other mode of 
estimate — the orator's farm being actually 
wOTth only about $3,000. Held, that the award 
waa void, as not following the submission— 
and for this and other causes it was set aside in 
chancery. H&ttard v. Edgell, 17 Vt. 9. 

30. If two entire subject matters are sub- 
mitted to arbitration and only one of them is 
awarded upon, the award is not binding ; and 
heidy that this applies with peculiar force 
where the claims are upon aifferent sides, and 
especially in case of mutual law suits. Mor»e 
V. Hale, 27 Vt. 660. 

31. Agreement to extend. If parties to 
a written submission to arbitration do, upon 
the trial before the arbitrators, submit by mu- 
tual consent to the arbitrators matters not m- 
cluded in the written submission, and the arbi- 
trators, acting under such mutual consent of 
Uie parties, try the matters so verbally submit- 
ted and make their award, neither party can, 
after publication, object that the award exceed- 
ed the submission ; so held, where the submis- 
sioD was by a bond reciting the agreement to 
submit. Wood* v. Page, 87 Vt. 262. 

32. Oertainty of award. The degree of 
uncertainty to avoid an award should be such 
as would avoid any other contract ;— such as 
would leave the meaning of the arbitrators 
wholly in doubt. Akely vMke^fy 16 Vt. 450. 

33. The fact that the arbitrators have stated 
reaulta, without the processes which led to 
them, does not make an award uncertain. The 
amounts claimed, the respective accounts of 
the parties, and the findings upon them need 
not. be stated. To make an award invalid for 
this cause, it must be the decision which is left 
uncertain, not the reasoning which led to the 
decision. Lamphire v. Cacan, 39 Vt. 420. 

34. Where the claims on both sides in an 
arbitration are pecuniary, or for damages capa- 
ble of being reduced to a certain sum, if the 
arbitrators, professing to decide on the whole 
subject, find a balance due from one to the 
other, such an award is conclusive, although 
the particulars from which that balance resulted 
are not stated ; — unless the submission requires 
something more than the ascertainment of a 
sum due, as, e. g,, ti direction for the perform- 
ance of some specific act. Bowman v. Doumer, 
28Vt.532. 

35. An award that the plaintiff shall execute 
and deliver to the defendant '* a good authentic 
deed of conveyance of all the land which the 
plaintiff holds by deed of conveyance from one 



Samuel Martin, teing a pari of the old Cox 
farm,"— was held sufficiently certain. Whit- 
oomb V. Preston, 13 Vt. 58. 

36. In an action on an award that the de- 
fendant should pay the ** taxable costs" of a 
certain suit ',—Held, (1) that the award was not 
objectionable for uncertainty ; (2) that no ac- 
tion lay upon it without averment and proof 
that the defendant iiad notice of the amount 
before suit brought. Wright v. Smith, 19 Vt. 
110. 

37. An award undertaking to define a bound- 
ary is void for uncertainty, which refers for 
description to monuments which do not in fact 
exist, 'and fixes upon a line which cannot be 
ascertained. Giddings v. Hadatcay, 28 Vt. 
342. 

38. Mutuality and finality. An award 
is not binding, which is not mutual and 
final ;— as where no protection or benefit what- 
ever could result to one of the parties from the 
submission or award, but the original claim is 
left in force. Onion v. Robintton, 15 Vt. 510. 

). Where the award of an arbitrator was 
not full and final upon all the matters submitted, 
it was held fatally defective. Smith v. Potter, 
27 Vt. 304. 

40. An award was hdd to be final, which 
settled a partnership, and divided the assets and 
liabilities as between the parties, and established 
their rights and duties towards each other, al- 
though it did not provide a remedy or method 
of enforcement. It could do no more; and 
such award is mutual and final. Lamphire v. 
Cowan, 39 Vt. 420. 

41. An award that one party shall pay a 
stranger a debt for which both parties are 
bound, is valid as between the parties to the 
award. Ih. 

42. Diyisibility. Where one article of an 
award is in itself so complete and independent 
of the rest, that its separate enforcement will 
work no injustice, it may be recovered upon, 
although other portions of the award are void. 
Ih. Giddings v. Hadaway, 28 Vt. 342. 

43. An item improperly allowed in an award 
does not avoid the award, where it is so stated 
as to be separable. In such case it is to be 
severed and deducted. Hartland v. Henry, 44 
Vt. 593. 

44. In assumpsit upon a parol award of ar- 
bitrators declaring for the aggregate amount of 
the award, where the award was in fact made up 
of distinct and separate items, with their values, 
and it was so announced, some of which items 
were within the legal scope of the decision, and 
some not ;— Held, ihsx a recovery could be had, 
under such declaration, for the sum of the items 
which were properly awarded. Dalrymple y 
WhiUngham, 26 Vt. 345. 

45. Where a submisoion was of all demands, 
and the arbitrators added to their award that 



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ARBITRATION, III. 



the parties should execute mutual general re- 
leases; HM^ that this was well enough, and 
did not aflfect the main award, which was 
itself a bar to all claims. Shepherd v. Briggs, 
28 Vt. 81. 

46. Under a parol submission to arbitrators 
of all matters of dlflference between the parties, 
the arbitrators awarded a certain sum to the 
plaintiff, and a further suTn of it^ for further 
breach of contract, unless the defendant should 
within six days after notice pay the sum first 
stated. Hfld^ that the plaintiff could not re- 
cover the $50, it being, as stated, a penalty for 
not performing the rest of- the award, and not 
within the submission ; but that this was sever- 
able, and did not vitiate the rest. Sabin v. 
AngeU, 44 Vt. 523. 

47. In an award one provision was, that 
the costs should *' be made up by the parties." 
Held, that this did not vitiate other parts of the 
award. Rixford v. Nye, 20 Vt. 132. 39 Vt. 
420. 

48. Arbitrators, in adjusting sundry claims 
between the parties, made^ seven successive 
awards, five in favor of the plaintiff and two 
in favor of the defendant, each complete in it- 
self, and struck no final balance of the awards; 
but this was mere matter of computation. In 
an action on the arbitration bond to pay *'the 
award " ; — Held, that these were but details of 
one award, and that the plaintiff was entitled 
to recover the final balance. Semhle, that if 
the defendant had withheld his portion of the 
award, the plaintiff might have had judgment 
for that part which was in his favor. Kendrick 
V. TwrheU, 26 Vt. 416. 

49. Oonstractioil. Awards are to be lib- 
erally construed according to the intent of the 
parties. If, by manifest implication, that ap- 
pears which, if positively expressed, would 
render the award good, that is sufficient to sup- 
port the award. Ri^fard v. Nye, 20 Vt. 132. 
Lamphire v. Cowan, 39 Vt. 426. Toung v. Kin- 
ney, 48 Vt. 22. 

50. A submission and award very inartifi- 
cially drawn, were sustained, the judge saying, 
that courts, very justly, ever strive to support 
and enforce the adjudications of these domestic 
tribimals created by the parties, as in the inter- 
est of peace and, generally, of substantial jus- 
tice. Soper V. Frank, 47 Vt. 368. 

51. The submission to arbitration of a causes 
pending in the county court provided, that 
^' the costs in the county court shall fbllow the 
decision of the arbitrators, and shall follow the 
judgment of said arbitrators to be made as in a 
court of teff." Held, that this provision re- 
ferred to the costs only, and not to a rule of 
decision upon the merits. Edwardt v. Har- 
nnjfton, 45 Vt. 63. 

52. Arbitrators may award that payment be 
^inade at* a future day, and by installnients, and 



may require the performance of conditions by 
the other party before pa3rment ; and where the 
subject matter was a continuing contract for sup- 
port during life, which was wholly broken ; — 
Held, that they might award the payment of an 
annual sum during the life of the party entitled 
to such support, under a submission of *'all 
questions of damages growing out of an alleged 
violation " of such contract. Hemelee v. HeUl, 
31 Vt. 582. 

53. A submission recited that "Whereas a 
controversy is now existing between us con- 
cerning the settlement of book accounts and all 
other deal and disputes between us," and then 
agreed '*to submit all of said controversies 
which we cannot settle ourselves, if any there 
should be, (&c." Held, that the submission 
did not include matters of deal not in con- 
troversy [as certain promissory notes not at 
that time disputed], and, therefore, such claims, 
not presented to the arbitrators, were not barred 
by the award. Robinson v. Morse, 29 Vt. 404. 
7*. 464. 

54. Where a submission in writing was of 
''all differences and accounts," — Heid, that an 
award thereon was not a bar to a claim not 
presented, about which there was no dispute, 
and which stood adjusted by a previous award 
under a parol submission. Treseott v. Baker, 
29 Vt. 459. 

55. Effect. An award, acquiesced in by 
the parties to it, cannot be impeached by a 
a third person who has got possession of the 
money awarded. Penniman v. Patchin, 6 Vt. 
325. 

56. An award will ordinarily have no greater 
effect than a judgment. It will only bar what 
is adjudged, unless perhaps, &c. Redfield, J., 
in Briggn v. Bretrster, 23 Vt. 100. 29 Vt. 408. 
29 Vt. 464. See Robinsm v. Morse, 26 Vt. 892. 
Buck V. Bwik, 2 Vt. 417. 

57. Under a general submission to arbitra- 
tion, not in writing ;—Held, 4hat matters with- 
in the submission, but not brought before the 
arbitrators, are not barred by the award ; but 
the decision was limited to such submissions. 
Buck V. Buck. 

58. In case of a written submission of all 
matters in difference, where only a part was 
embraced in the award ',—Held, that in order 
to impeach the award on this ground, the 
party must distinctly show that the matters not 
awarded upon were so brought to the notice of 
the arbitrator that it became his duty to hear 
and determine them. Young v. Kinney, 48 
Vt. 22. 

59. Whether matters falling withm the 
terms of the submission, but, through mistake, 
forgetfulness or accident, not presented to the 
arbitrators, are barred by the award — qwfre, 
Robinson v. Morse, 26 Vt. 392- It so seems: 
—see Barker v, Belknap, 39 Vt. 180. 



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ARBITRATION, IV. 



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60. Where a submission to arbitration is by 
deed, an award, made in pursuance of it, is a 
bar to an action for the recovery of any matters 
included in tbe submission, though not in fact 

' brought before the arbitrators. Robinson v. 
MoTM, 26 Vt. 892. 

61. So, where the submission is in writing, 
and under a rule of the probate court autboriz 
ed by statute. Barker y. Belknap, 39 Y t. 168. 

62. The submission of the subject matter of 
a pending suit to arbitration and an award ac 
coinding to the submission, operate in law to dis- 
continue and put an end to the suit. Bixford 
T. JVye, 20 Vt. 132. Babeock v. School Dutrict, 
85 Vt. 260. 

63. The plaintiff had a claim against the 
defendant, an officer, for the wrongful attach- 
ment of ills last cow upon a writ in favor of G. 
The plaintiff and G afterwards submitted cer- 
tain specified matters, and ''all matters existing 
between them*' to arbitration, and an award 
was made, this claim not being presented or 
adjudicated. In an action of trespass against 
theofllcer, — i7<rM,that the award was no defense, 
for tliat the plaintiff was not bound to resort to 
6 instead of the officer for remedy, even al- 
though he might have done so, and the officer 
was not a party to the submission. Robinwn 
V. Hatrkins, 38 Vt. 693. 

64. The defendant had leased premises to 
tbe plaintiff for five years, and during the first 
year they agreed to * 'dissolve," and left to ar- 
bitrators to determine what sum the defendant 
should pay the plaintiff in consideration that 
the plaintiff would, at the end of the first year, 
surrender the term and premises. The arbitra- 
tors awarded a certain sum. Before the ex- 
piration of the year the plaintiff assigned the 
lease and remainder of the terra to his son, and 
informed the defendant thereof and that he did 
not consider himself bound by the award, as 
the defendant had not paid ; that he had nothing 
further to do ¥rtth it, and the defendant must 
go to the son about it. The defendant did go 
to the son and paid him $100, to surrender the 
premises. In an action on the award ;—Beldy 
(1) that the award was payable only when the 
surrender was to be made; (2) that having 
refused to surrender and having assigned the 
estate, the plaintiff could not recover; (3) 
that as the defendant acted upon the notice 
given him in making the purchase of the son, 
this operated as an estoppel in pais to any claim 
of the plaintiff. Soper v. Frank, 47 Vt. 868. 

65. Impeacfaaieiit of award at law. 
Neither mistake, nor irregularity of conduct of 
artritrators, nor both, not going to the whole 
award, is a defeiise in an action at law upon the 
award. Shepherd v. Brigffs, 28 Vt. 81. 

66. In an action upon ah award, or an arbi- 
tration note, the award, Hke a judgment, can- 
not be collaterally impeached by evidence that 



it was procured by the plaintiff by false testi- 
mony. Woodrow V. 0' Conner, 28 Vt. 776. 

67. —in equity. Partiality or corruption in 
the arbitrators, or fraud of the party in obtain- 
ing an award, are grounds of defense exclusive- 
ly of equitable cognizance. Emerson v. Udall 
13 Vt. 477. 

68. An award is in itself conclusive of the 
legality and justice of the claim submitted and 
allowed, and of all inferences to be drawn there- 
from. To avoid an award upon the score of 
fraud, it is necessary to prove facts not within 
the scope of the inquiry before the arbitrators, 
and from their nature not concluded by the 
award ; simply to show that the claim allowed 
was unfounded, and that the party presenting 
it knew it, is not sufficient. Emerson v. Udall, 
8 Vt. 357. 

69. In order to warrant the setting^ aside of 
an award for fraud of a party, such party must, 
either by suggestion of falsehood or the suppres- 
sion of truth, have presented to the arbitrators a 
state of facts in regard to the merits of his claim 
which were factitious, and which he at the time 
believed to be such. Bedfleld, J., inEmerson v. 
Udall, 13 Vt. 484. Howard v. Puffer, 28 Vt. 
365. 

70. An award wiU not be set aside by a 
court of equity on the ground that one of the 
parties, without any mistake as to the facts, 
misapprehended one of the legal consequences 
of the award— as, the settling of title to land. 
Howard v. Puffer, 26 Vt. 687. 

71. No mistake in matter of fact, depend- 
ing upon the misjudgment of an arbitrator, 
whether in weighing evidence, or the construc- 
tion of contracts or written admissions, will 
avoid an award. The mistake must be one 
which shows that the arbitrator was misled, de- 
luded, and so far misapprehended the case, that 
he failed to exercise his real judgment upon it— 
e. g. a mistake in computation. Bedfleld, C. J., 
in Vandertrerker v. Vt. Central B. Co., 27 
Vt. 130, 137. 

72. The court refused, on bill in equity, to 
set aside an award for misconduct of the ar- 
bitrators, where they were not satisfied that the 
misconduct was intentional, or sufficiently gross, 
although the court characterized it^is "discred- 
itable." CuUing v. Carter, 29 Vt. 72. 

73. But where a party to an arbitration pro- 
cured a false allowance in his favor by with- 
holding from the inspection of the other party 
his books and papers, from which he was con- 
scious the incorrectness of his claim would ap- 
pear ',—Held, that this was such a fraud as de- 
manded setting aside the award, id. 

IV. Action on AwARn. 

74. Under ageneral submission arbitrators 
may award money, and releases ; and assump- 



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ARBITRATION, IV.— ARREST. 



sit lies upon an award, though the submission 
contains no express promise to abide the award. 
BellmcB V. Barnard^ Brayt. 29. 

75. If parties agree to submit, and actually 
do submit, and an award is made in the prem- 
ises, an agreement to abide the award is implied, 
though not expressed in th^ submission. Steic 
art V. C(u$, 16 Vt. 668. 

76. Where an award orders acts to be done 
by both parties within a certain time, the party 
who refuses to perform within the time set can- 
not afterwards compel the other party to per- 
form. Afum, Brayt. 29. 

77. Certain property in the custody of the 
defendant was awarded by arbitrators to the 
plaintiff. At a later date, the parties executed 
mutual releases. Afterwards the defendant re- 
fused to surrender the property and converted 
it. ffeldj that an action therefor did not lie 
upon the covenant to perform the award, but 
trover. Bridgeman v. Eaton, 8 Vt. 166. 

78. Arbitration notes. An arbitration 
note — that is, a promissory note executed by one 
party to the other, subject to indorsement to 
correspond with the award, and deposited with 
the arbitrator to be delivered to the recovering 
party— takes effect as a valid obligation upon 
its delivery to the party in whose favor a valid 
award is made; and a recovery may be had 
upon it, on the money counts. Woodrotc v. 
0' Conner, 28 Vt. 776. BagUiy v. WimtaU, 
Brayt. 28. 

79. Declaration. In declaring upon an 
award, it is sufficient to set forth that part on 
which the plaintiff relies, and to say that among 
other things the arbitrators awarded, &c. 
Blaneha/rd v. Murray, 16 Vt. 548. 

80. Damages. Where, a» a consideration 
for submission to arbitration, the plaintiff re- 
leased his original cause of action, and the de- 
fendant refused to proceed according to the 
submission ;—i/i0^ (hat the rule of damages 
was the plaintiff's cost and expenses, an^ the 
value of the claim or cause of action released. 
Doiy V. Es$ex Co, Bank, 18 Vt. 97. 

81. Where parties agreed in the submission, 
each to perform the award, or, on failure, to 
pay to the other $500 in lieu of all other dam- 
ages, and the award was for the payment of a 
sum of money less than f 500 ',—Held, in an ac- 
tion on the award, that the plaintiff could re- 
cover only the amount of the award with inter- 
est. WkUeomb v. Preston, 18 Vt. 58. 



ABBE8T. 

1. Bight to arrest. For the purpose of 
preventing the commission of crime, or breach 
of the peace, public officers may, upon common 
principles, without any statut!^ authorizing it, 



make arrests, and take and detain the instru- 
ments of crime. In many instances, a private 
person may do the same. Spalding y. Preston, 
21 Vt. 9. In re Powers, 26 Vt. 261. 

2. —to demand assistance. In the mak- 
ing of arrests for any criminal matter or cause, 
a sheriff, or other like officer, may command 
suitable aid and assistance (G. 8. c. 12, s. 11) ; 
and any person so assisting may justify by the 
order of a known public officer, although the 
officer be not justified by his process. Mc- 
Mohan v. Qrem, 84 Vt. 70. 

3. If there be a misnomer of the defendant 
in a criminal process, whether the arrest of the 
person intended cannot be justified by the of- 
ficer under the warrant— ^t/arf ; The oi'der of 
the officer will justify the person assisting him 
in such case. Ih, 

4. Duty to arrest. An officer having an 
execution against the body of a party whom he 
holds in arrest upon criminal process, or who is 
present while the party is so under arrest, is 
bound to wait the opportunity to make an ar- 
rest upon the execution, unless necessarily pre- 
vented ; and for neglect so to do the officer was 
held liable. Warner v. Ijwry, 1 Aik. 56. 

6. Writ of protection. A writ of protec- 
tion ad testificandum suspends all civil process 
against the subject of it, while coming to and 
attending upon court, and for a reasonable time 
for returning home after the rising of the court. 
HaU ex parte, 1 Tyl. 274. 

6. Privilege from arrest. Parties, wit- 
nesses and bail are privileged from arrest, in a 
civil suit, during their attendance upon court, 
or before any tribunal sitting in the nature of a 
court in the administration of justice, and in 
going to and returning from it, whether com- 
pelled to attend or not. Fletcher v. Baxter, 2 
Aik. 224. 

7. The arrest of one having special privilege 
or exemption from arrest is not void, but merely 
voidable. The privilege may* be waived. It 
cannot be pleaded and put in issue to the jury, 
but is ground for a motion to the court for a 
discharge, or for release on habeas corpus. lb, 

8. Where the principal was arrested while 
attending court as a witness, and gave bail and 
suffered judgment to pass against him without 
claiming his privilege ; — Held, that he had 
waived his privilege, and that it was no de- 
fense to an action against the bail. lb, (See 
G. 8. c 88, s. 84.) 

9. One who is personally privileged from 
arrest must take the earliest opportunity to 
assert his privilege to prevent or defeat an ar- 
rest, or he will be held to have waived his priv- 
ilege ; and it cannot be afterwards asserted, so 
as to render his imprisonment unlawful, in an 
action for false imprisonment. So held, where 
the plaintiff was again imprisoned upon an ex- 
ecution regular on its face, i^ter having been 



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ARREST. 



45 



discharged on taking the poor debtor's oath. 
Wood V. KintfMtn, 5 Vt. 588. Brayt. 118. 

10. An officer, holding a writ of attachment 
against a person attending a justice court as a 
suitor, arrested him, but recognizing his privil- 
^e dischfirged bim from arrest, and so made 
return, making no other service. Held, that 
this was no service of the writ. Wheeler v. 
Bony, 6 Vt. 579. 

11. That the defendant was attending court 
as a witness when he was arrested upon the 
writ, is no cause for abating the writ. Booraem 
Y.Wheeier, 12 Vt. 811. Changed by G. 8. c. 
33, s. 84 (1849). 

12. The giving of bail is not a presumed 
waiver of privilege from arrest. Washburn v. 
PhelpM, 24 Vt. 606 (1852). 

13. G. 8. c. 83, 8. 84, giving persons ** priv- 
ileged from arrest '* the right to plead such 
privilege in abatement, is intended for those 
only who are exempt from arrest on peculiar 
grounds, as parties and witnesses, attorneys, 
members of the legislature, &<;., and does not 
include a person not so *' privileged," who is 
arrested upon the filing of an affidavit that he 
is about to abscond, &c. Bank of Vergennen 
V. Barker, 27 Vt. 243. 

14. The statute (Q. S. c. 86, s. 20) exempt- 
ing a party ** in any cause " from arrest while 
going to, attending or returning from the 
trial of such case, does not extend to the re- 
spondent in a criminal prosecution. SeoU v. 
CurU'gy 27 Vt. 762. 

15. Arrest on capias for debt. If one 
assume to justify by special process of eapiaa, 
he should state such facts as justify that form 
of process. Wright v. HoMn, 24 Vt. 143. 

16. An officer arresting one on a captas as 
an absconding debtor cannot be required to 
take the debtor for examination before the jus- 
tice signing the writ, while the justice is out of 
his proper county, since the justice has no power 
to perform judicial acts there. Whiteomb v. 
Cook, 38 Vt. 477. 

17. When at the time a debtor is arrested 
upon a writ procured against his body by affi- 
davit, the magistrate signing the writ is tempor 
arily absent from the county, and the debtor 
notifies the officer that he wishes to be taken 
before the magistrate for an examination, we 
think the officer ought not, and has no legal 
right to commit him forthwith to jail, so that 
be can have no opportunity to go before the 
justice and have an examination ; that it is the 
duty of the officer to detain the debtor in custody 
for a reasonable time, at least, to afford oppor- 
tunity for such examination, and that if he did 
not, in this case, but committed him, the im- 
prisonment would be unlawful. But during the 
period of such delay, the officer may place the 
debtor in any safe and secure place for safe 
keeping that is reasonable and proper, and may 



use the common jail for such pu]^>06e. Po- 
land, C. J. lb. 

18. An officer having arrested one as an ab- 
sconding debtor, may lodge him temporarily in 
the county jail for safe keeping, in view of the 
debtor's right to procure bail or to submit him- 
self to examination in discharge of the arrest. 
But such custody remains in the officer until 
transferred to the jailer by a full commitment 
upon the writ, by leaving with him a copy, &c., 
as provided in G. 8. c. 33, s. 61. Kenerson v. 
Baoon, 41 Vt. 678. 

19. Until such full commitment, the debtor's 
right to be taken before the authority signing 
the writ for examination in discharge of his 
arrest continues; and if, after such request 
made at any time before such full commitment, 
the officer neglects or refuses to comply there- 
with and so commits the debtor, he becomes a 
trespasser ad initio^ and liable for false impri- 
sonment, lb. 

20. Under the Act of Nov. 6, 1846 (see G. 
8. c. 33, s. 78) —Held, (1), that where a debtor 
was arrested on an execution issued from the 
county court, the county clerk was the proper 
authority to examine him for a discharge ; (2), 
that he was entitled to such examination in a 
case where the execution issued without other 
affidavit than the one upon which the original 
writ issued ; and (3), that he was so entitled 
after he had been committed to jail and had 
given a jail bond, where he was not chargeable 
with neglect in seasonably claiming his privi- 
lege and had not waived it. Da/cis ex p^vrte, 18 
Vt. 401. 

21. Discharge by jndge. The written 
order of a county judge discharging a debtor 
from arrest, made in due form under G. 8. c. 
33, 8. 79, not only justifies but requires the re- 
lease of the prisoner ; and where he has passed 
upon the question of reasonable notice to the 
creditor, and the order states that the proceed- 
ings were had ** after proof of due notice" to the 
creditor, the question of due notice cannot be 
raised in an action against the sheriff for an 
escape. Brown v. Manon, 40 Vt. 167, and see 
Raymond v. Southerland, 3 Vt. 494. 

22. —by creditor on execution. As a 
general rule, if the creditor discharge hisdebtcMr 
from arrest on execution, it is equivalent to a 
discharge from imprisonment, and virtually 
discbarges the debt ; but if so discharged by 
request of the debtor, or by mutual assent, it 
does not so operate. Foster v. CoUamer, 10 
Vt. 466. 20 Vt. 377. 

23. Action for wrongful arrest. Trespass 
for false imprisonment does not lie for an im- 
prisonment upon an ali<M execution, because of 
an arrest upon a former one and a discharge 
from custody by the creditor. Jiason v. Sew- 
aU, Brayt. 119. 

24. An action does not lie against the party 



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46 



ARREST.— ASSIGNMENT, I. 



procuring an arrest and imprisonment upon an 
execution issued upon a judgment not void, but 
voidable merely. Kimball v. Newport, 47 Vt. 88. 

25. Where several, by combination and con- 
spiracy, enticed a citizen of this State to go in- 
to another State that he might be there arrested 
on civil process, and he was so arrested \—Held, 
they wereliable to him in an action on the case, 
although the debt for which he was so arrested 
was Justly due. Phelp» v. Ooddard, 1 Tyl. 60. 

Pramim not to arreBt;—Bee Steele v, Batee, 
2 Aik. 888. 



A88IGNMENT. 

I. Ordinary Assionmknts. 

II. AsSieNMBNTS FOR BbNBPIT OF CrRDITOBS. 

1. At eommon law, 

2. Under etatutee, 

I. Ordinary Assignments. 

1. Mode of anigning. If a draft, or order, 
is drawn on a debtor for funds of the drawer in 
his hands, in favor of a third person for good 
consideration, this operates as an equitable as- 
signment which the assignor will not be allowed 
to defeat, although the drawee, having notice, 
neither pays nor accepts the order. Blin v. 
Fierce, 20 Vt. 25. 

2. A promissory note, given and made pay- 
able to A, or bearer, was delivered by A to 6, 
with an authority ** to use the avails of it for 
the support and comfort of B, as she might 
need, or find occasion." Held, that this did not 
create an agency for the benefit of A, nor con- 
fer a mere power of attorney which was revoked 
by the death of A, but was an assignment, au 
thorizing B to demand payment, and the maker 
of the note to pay to B, after the death of A ; 
and, the maker having so paid, held, that he 
was not liable to the executor of A. Lamb v. 
MaUh^s, 41 Vt 42. 

3. A lease of lands, sheep, &c., from A to 
B, with conditions of purchase, had indorsed 
thereon the words, ** Assigned the within in- 
strument to C,** signed by A, and it appeared 
that C had thereafter received the rents due 
upon the lease. Held, that these facts alone 
did not prove such a transfer to C of all inter- 
est in the lease, as to defeat an action by A 
to recover for a conversion of the property 
specified in it. Bradley v ArTiold, 16 Vt. 382. 

4. Oral assignment. An assignment of a 
chose in action by words without writing oper- 
ates as an equitable transfer of it, and, when 
fc^owed by noHce thereof from the assignee to 
the debtor, will be protected and enforced by 
courts of law against a subsequent attachment 
by trustee process. No symbolical delivery 



is essential to the assignment. Noyee v. Brown, 
83 Vt. 431. Hutchim v. WaUe, 85 Vt. 860. 
Spafford v. Page, 15 Vt. 490. 

5. Dictum. An oral agreement assigning 
a chose in action requires a symbolical delivery. 
WfUUle V. 8kinner,2^ Vt. 531. Held contra to 
Noyes v. Brown, 

6. Snliject of assignment. A person in 
the actual employment of another and receiving 
wages under a subsisting engagement, may 
make a valid assignment of his future earnings 
for the security and payment of either present 
or future indebtedness— although such engage- 
ment is not for any set time and either party 
may terminate it at pleasiu^. Thayer v. KeU^, 
28 Vt. 19. 

7. An unliquidated balance of account is 
assignable, and may be held by the assignee, 
after notice to the debtor, against a trustee pro- 
cess. {Dictum contra of Redjield, J., in Whittle 
V. Skinner, 28 Vt. 581, denied), TreseoU v. 
Potter, 40 Vt. 271. 

8. A written instrument, as follows : " Due 
Harvey Groot $295, in part payment for a piano 
forte, said piano to be selected by Mr. Groot," 
is assignable, and the assignee or his agent 
takes the assignor's right of selection. Groot 
V. Story, 41 Vt. 538. 

9. Protection of assignee. A note not 
negotiable is assignable in equity, so that, after 
notice, the maker can pay to the assignee only, 
and cannot be held as trustee of the payee. 
NeweU v. Adams, 1 D. Chip. 846. 

1(K The equitable interest of the assignee of 
a chose in action will be protected at law ; and 
in an action by the assignee, brought in the name 
of the assignor, the debtor can set up no defense 
which accrued after notice to him of the as- 
signment, — as, payment, release, set-off, &c. 
lb. Strong v. Strong, 2 Aik. 878. Lampeon 
V. Fletcher, 1 Vt. 168. Haoen v. Hobbe, lb. 
288. WeekH v. Hunt, 6 Vt. 15. Cummings v. 
Fullam, 18 Vt. 484. Day v. AbboU, 15 Vt. 
682. CampbeU v. Day, 16 Vt. 558. Stiles v. 
Farrar, 18 Vt. 444. Blake v. Buchanan, 22 
Vt. 548. Upton v. Moore, 44 Vt. 552. 

11. To avoid the effect of a release, pleaded 
or proved, it is not sufllcient to reply or prove 
that the suit is brought for the benefit of an- 
other than the plaintiff of record, and that the 
defendant knew this before the release was 
given. To avoid the effect of the release, there 
must have been an assignment of the claim. 
Beech V. Canaan, 14 Vt. 485. Weeks v. Stevens, 
7 Vt. 72. 

12. was sued upon a contract, and de- 
fended upon the ground that he was agent of M. 
He employed the plaintiffs as his attorneys, and 
was cast in the suit, on the ground that he did 
not disclose his agency when he nuule the con- 
tract. He then brought suit against M, to re- 
cover what he had been compelled to pay and 



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ASSIGNMENT, I. 



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his expenses, and, pending the suit, assigned 
his entire claim, upon sufllcient consideration, 
to the defendant, and afterwards settled with 
the pUtintiffs their bill for services in the first 
suit by giving them his note therefor, telling 
them that if such part of his claim against M 
should be allowed in the suit, they should 
have the benefit of it, and have sdvmuch of the 
judgment against M. A judgment was ob- 
tained against M in the suit, and the amount of 
the plaintiffs' claim against C was embraced in 
it. The defendant collected the whole amount 
of the judgment, and held the money. In an 
action to recover the amount of the plaintiffs' 
bill, as their money in the hands of the defend- 
ant ;—Held, that the liability of C to the plain- 
tiffs, equally as if paid, passed by his assign- 
ment to the defendant, as part of his claim 
against M. and that the giving of the note gave 
him no additional right against M ; that C 
gained nothing and the plaintiffs lost nothing 
by that arrangement ; that the equitable title 
to the whole claim, which became vested in 
the defendant by the assignment, could not be 
divested by any subsequent agreement between 
C and the plaintiffs ; that the plaintiffs had no 
lien upon the judgment, and'bould not recover. 
Otmtiby V. Fifield, 38 Vt. 143. 

13. Where assigned as collateral secnr- 
ity. The equitable interest of the assignee of 
a note not negotiable, which is assigned as col- 
lateral security merely foi a debt owing, ex- 
tends only to tlie amount of the debt, and does 
not cover costs accrued in a suit to recover the 
debt. As to the excess above such debt, the 
maker of the note may avail himself of a re- 
lease by the payee, though executed after the 
assignment. Blake v. Buchanan, 22 Yt. 548. 

14. Tlie assignee of a promissory note for 
collateral security is entitled to recover the full 
amount of the maker, and to hold the excess , 
if any, above the claim secured in trust for the 
assignor. Sawyer v. Cutting, 23 Vt. 486. See 
Bank of Rutland v. Woodruff, 34 Vt. 89. 

15. Assignee takes snbject to equities. 
The assignee of a chose in action takes it sub- 
ject to all the equity, existing at the time, in the 
original obligor or debtor. Foot v. Ketchum, 
15 Vt. 258. 

16. Where a deputy sheriff recovered judg- 
ment against a bank for money deposited, 
which he had collected on an execution, and 
the sheriff had been obliged to pay the creditor 
for the laches of the deputy in failing to pay 
over the money so collect^; — Held, that the 
equitable title to the money deposited and the 
judgment was in the creditor, until he was paid 
by the sheriff, and that on such payment the 
sheriff became entitled to be subrogated to the 
rights of the creditor in the judgment ; and 
that this equity would prevail over the equita- 
ble rights of Qne who had taken from the dep- 



uty an assignment of the judgment, though 
taken upon good consideration and without no- 
tice of the pre-existing equity of the sheriff. 
Dmcner v. 8, RoyaUon Bank, 89 Vt. 25. 

17. The rule that a bona fide purchase, for 
value and without notice, is a good defense 
against prior equitable claims, applies only 
where the purchaser has acquired a lega^ title or 
a legal superiority in good faith and for value. 
But the purchaser of a chose in action, which 
is assignable only in equity, takes it subject to 
all equities attached to it, although without no- 
tice of them,— not only such as exist between 
the debtor and the assignor, but such as exist 
in favor of a third person as against the assign- 
or. As between mere equities, priority in time 
gives priority of right. Wilwn, J. lb. 

18. An assignment of a demand not nego> 
tiable, since it does not transfer the legal right 
of action, does not preclude the defendant from 
offsetting mutual demands against the plaintiff 
of record, which were mature and actionable 
previous to the assignment. Walker v. Sa/r- 
geant, 14 Vt. 247. 

19. The defendant was indebted to the 
plaintiff on book account, and was, at the same 
time, surety of the plaintiff for a larger sum. 
The plaintiff assigned his account, of which the 
defendant was notified, and the defendant after- 
wards paid the debt for which he was surety. 
In an action of book account by the assignee in 
the name of the plaintiff ;—H€ld, that the sum 
so paid should be allowed to the defendent, 
notwithstanding the assignment, the defendant 
having an earlier equity than the assignee, and 
dating from his undertaking of suretyship. 
Barney v. Qrover, 28 Vt. 891. 

20. A party taking a railroad mortgage 
bond pendente lite, or after a foreclosure, as 
collateral security for tlie debt of tlie assignor, 
takes it subject to such equities as existed 
against it in the hands of the assignor, and with 
no greater rights under it. Knapp v. Sturgie, 
36 Vt. 721. 

21. Notice of assignment. The debtor 
will be protected as to all bona fide defenses — 
as payment to the assignor, &c.,— arising before 
he had knowledge of the assignment. Camp- 
beU v. Day, 16 Vt. 558. 

22. To perfect an assignment of a chose in 
action as against bona fide creditors of the 
assignor, notice of the assignment must be 
given to the debtor before attachment; and 
this is so, whether it be an assignment of a 
single chose in action, or a general assignment 
for the benefit of creditors. Notice comes in 
lieu of possession taken, as in case of chattels. 
Ward V. Morrison, 25 Vt. 593. Barney v. 
Douglass, 19 Vt. 98. 

23. Until notice of the assignment of a 
chose in action has been given, the same evi- 
dence that would be admissible between the 



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ASSIGNMENT, tt 



original parties is admissible against the as- 
signee ; — as, an admission by the assignor that 
the debt had been paid,— for, until such notice, 
the rights and interests of the debtor are in no 
way affected by the assignment. Ijoonds v. 
LoanUs, 26 Vt. 198. 

24. The defendant had contracted with one 
8 for a daily supply of milk for one vear from 
April 1st, at a stipulated price per quart pay- 
able monthly. S so furnished the milk until 
Sept. 1st, when, without the knowledge of the 
defendant, he sold out his business to the plain- 
tiff, who supplied the defendant through the 
month of September, the defendant all the 
while supposing that he was supplied by S 
under the special contract. Upon then being 
informed of the facts, and upon the plaintiff's 
refusing to carry out the contract of 8 for the 
rest of the year, the defendant refused to pay 
the plaintiff for the milk furnished by him 
during the month of September. In an action 
of book :u3count brought therefor .—Held, that 
the plaintiff was entitled to recover, but only 
to the same extent as if the action had been by 
8 after a like refusal on his part to carry out 
the special contract, and subject to a like de- 
duction from the contract price, of the defend- 
ant's damages on account of such refusal. 
Smith V. Foster, 86 Vt. 706. 

25. Form of notice. No particular cere- 
mony or form of words is prescribed, or neces- 
sary, to constitute sufficient notice of the 
assignment of a demand, so as ii protect it 
from trustee process against the assignor ; but 
it must be such knowledge or information, 
communicated by the assignee or by his pro- 
curement, to the alleged trustee, as gives him 
fully to understand that he, the assignee, is the 
owner of the demand. A notice of this char- 
acter may be sufficient, though the communica- 
tion be merely casual and be made for no defi- 
nite purpose. Daie v. Kimptan, 46 Vt. 76. 

26. A, the assignee of an unsettled claim of 
M against B, said to B : ''If there is anything 
due from you to M, I want you to pay it to me.' 
B replied that he had been requested to do the 
same thing by two others that day. A an- 
swered : ''I claim it." Held, that this did not 
fairly and reasonably give B to understand that 
A had an assignment of the debt, but was 
rather a request, and was not a sufficient notice 
of the assignment to protect the fund from a 
trustee process for the debt of M. Cahoon v. 
Morgan, 88 Vt. 284. 

27. Action by assignee. The transfer of 
a chose in action not negotiable, whereby the 
assignee becomes the absolute owner, whether 
it be by purchase or gift, is a sufficient consid- 
eration to sustain a specid promise by the 
debtor to pay to such assignee, and an action 
may be sustained upon such promise in the 
name of the assignee. Smilie v. Stevens, 41 Vt 



m. Moar V. WrigM, 1 Vt. 57. BuekKn v. 
Ward, 7 Vt. 195. Hodges v. Eastman, 12 Vt. 
358. Qoodnow v. Parsom, 86 Vt. 46. A UU v. 
Je^ceU, lb. 547. 81 Vt. 565. SUles v. Fcmrar, 
18 Vt. 444. Oos» V. Bwrker, 22 Vt. 520. 

28. Where a note, not negotiable, had been 
assigned for a valuable consideration, and upon 
notice thereof given by the assignee the maker 
promised to pay it to the assignee ; — Held, in 
an action thereon in the name of the payee, for 
the benefit of the assignee, that such promise 
amounted to an acquiescence in the assignment 
and a waiver of all right, or claim, to interpose 
an offset to the note, although then existing 
against the payee. SUles v. Farrar. 

29. The assignee of a judgment may main- 
tain an action in his own name for neglect of 
an officer, after such assignment, to collect the 
execution. McGregor v. Walden, 14 Vt. 460. 
31 Vt. 473. 

30. So, for such neglect, or to pay over the 
money collected, the assignee may maintain an 
action in the name of the party recovering the 
judgment ; and the rule of damages is the same 
in both cases. Chase v. Plpnumth, 20 Vt. 469. 
Bradley v. Chamberlain, 31 Vt. 468. 

31. — against assignee. An action for the 
breach of a mere personal contract cannot be 
brought against one to whom the obligor has 
assigned his interest, unless the assignee has en- 
tered into some new contract with the plaintiff 
to perform it. Smith v. Kellogg, 4» Vt. 560. 

II. A88IGNMBNT8 FOR BENEFIT OF OREDITORS. 

1. At common law. 

32. It was agreed between the owner of 
certain personal property and certain of his 
creditors, that the plaintiff, a third person who 
then had possession of the property, should 
keep it till a certain day and then sell it at auc- 
tion and apply the proceeds among such credi- 
tors m a certain specified order. To this the 
plaintiff agreed, and employed one of such 
creditors to keep the property until the day of 
sale; but before that day the defendant, another 
creditor, attached and took away the property. 
Heid, that the contract operated as a direct 
assignment to the plaintiff for the benefit of the 
particular creditors, and that the defendant was 
liable to him in trespass for the attachment. 
Mason v. Hidden, 6 Vt. 600. 

33. A general assignment by a debtor of all 
his property, for the benefit of all his creditors, 
is valid. Hall v. Denison, 17 Vt. 810. (Sub- 
sequently prohibited by Act of 1848.) 

34. A general assignment for the benefit of 
creditors imports a consideration,— especially 
where a nominal consideration is expressed, and 
the assignee executes a covenant for the faith- 
ful performance of the trust. 7^. 



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35. It is no objection to such an a88ignment»i goods under a valid assignment from his debtor. 



that there is in it a reservation of the surplus to 
the assignor, after all his debts are paid. Ih. 

36. The assent of creditors to an assignment 
in trust for their benefit, without conditions, 
will be presumed; and where the condition 
only affected the question of a preference — as, 
that creditors shall be preferred who shall within 
90 days become parties to the assignment and 
release their claims, and after that the estate 
shall be distributed pro rata among all other 
creditors— and no such preference bad been 
claimed ; — Held, that the assent of creditors to 
such final distribution would be presumed, and 
the assignment was not invalidated by such 
condition of preference. Ih. 

37. By a valid assignment in trust for the 
benefit of creditors the relation of trustee and 
ceHm qus trust is at once created between the 
assignee and the creditors, so that the assignee 
cannot revoke the instrument ; and the assignee 
cannot be held as trustee, under the trustee pro- 
cess of attachment, where there is no surplus in 
his hands after paying the debts embraced in 
the assignment. lb. 

38. A reservation to the assignor of the re- 
siduum, in an assignment in trust for creditors, 
without providing for all the creditors, renders 
the assignment void at common law. Dana v. 
LuU, 17 Vt. 890. Goddard v. Hapgood, 35 Vt. 
851. TherasMn v. Hickok, 87 Vt. 464. 

39. Where a voluntary assignment of all 
one's property to a trustee for the benefit of a 
part of the creditors of the debtor is objected to, 
because it leaves, expressly or by implication, a 
resulting trust to the debtor as to the surplus, 
it is no answer, that, in the end, it turned out 
that the property assigned was not sufficient to 
pay such preferred creditors. Dana v. Lull. 

40. Meld, that a person not in debt may 
make a voluntary conveyance of his property 
or a contract for his future support, which will 
be valid as to subsequent creditors. Buchanan 
V. Clark, 28 Vt. 799. 

41. Fraud does not consist in transferring 
property with a view to prefer one creditor to 
another, but in transferring prc^rty with the 
intent to prefer one's self to all his creditors. 
He may lawfully pay or secure one creditor to 
the exclusion of another. Qregary v. Ha/rring- 
Urn, 88 Vt. 241. 

42. An assignment in trust for the benefit of 
creditors, if made with intent to prevent a par- 
ticular creditor from getting his pay from the 
property assigned, or otherwise, except at the 
assignor's pleasure, was held to be void as to 
such creditor, although the assignee was ig- 
norant of such purpose, and although the as- 
signment, in other respects and in its results, 
adde from such intent, was valid. StUskney v. 
Orane, 85 Vt. 88. 

43. A party took and held possession of 



He afterwards, for his better protection, attach- 
ed the goods and irregularly sold them on ex- 
ecution. Seld, as against other creditors of the 
assignor, that he had not thereby lost his right 
under the assignment. Tilton v. Hfiller, 34 
Vt. 576. 

44. Where a creditor accepted in writing the 
provisions of an assignment by his debtor for 
the benefit of creditors, by which he agreed to 
accept the dividends which might accrue after a 
faithful accounting by the assignee, and await 
the same ; — Held, that the agreement was on 
sufficient consideration, and operated as a tem- 
porary bar to his right of action on his claim. 
Kingsbury v. Deming, 17 Vt. 867. 

45. But the acceptance of a dividend under 
such an assignment, wb^re there is nothing in 
the terms of the assignment binding the credi- 
tors to delay, does not preclude the creditor 
from suing at any time. Bank of BeUows 
Falls V. Deming, 17 Vt. 866. 

46. So, too, if, under such an assignment, 
there has been an unreasonable delay in settling 
the estate and perfecting the accounting, a 
creditor who assented to the assignment, and 
joined in the agreement to delay, may bring his 
suit. Foster v. Dtming, 19 Vt. 818. 

2. Under statutes. 

47. Stat. 1843— General assignment. Un- 
der the Statute of 1848 (C. S. c. 64, s. 6) 
enacting that ^*a]l general assignments made 
by debtors for the benefit of creditors shall be 
null and void as against the creditors of said 
debtors;"— ^i^W, that to come within the statute 
the assignment nmst be of substantially all the 
debtor* s property and in trust for the ben^ of 
his creditors. If so, it is within the statute. 
Noyes v. Hiekok, 27 Vt. 86. Mussey v. Noyes^ 
26 Vt. 462. Bishop v. CaiUn, 28 Vt. 71. 
Therasson v. Hiekok, 87 Vt. 464. 

48. Unless the assignment be made to 
trustees in trust for creditors, it is not a **gen- 
eral assignment" under the act, although it be 
of all the debtor's property. Feck v. MerriU^ 
26 Vt. 686. 

49. Where an assignment of an insolvent 
debtor conveyed to a trustee, by general des- 
cription, all the property he owned or possessed 
in two towns named, and there was no allusion 
in the assignment to his ownership of any other 
property, the assignment being made, as ex- 
pressed, *'to save a great sacrifice and waste of 
property";— -ff^fW, that the court would not 
intend that there was other property, and that 
this should be understood as a general asdgn- 
ment of all the debtor's estate. DaTia v. Lull, 
17 Vt. 890; and see BUhop v. CatUn, 28 Vt. 71. 

50. A deed of assignment by a debtor to as- 
signees provided as follows: The 



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ASSIGNMENT, U.— ASSOCIATIONS. 



* 'shall forthwith take possession, and faithfully, 
and as soon as practicable, and in the most , 
beneficial manner, dispose of and convert into 
money the said real and personal estate, and 
collect the said choses in action, and apply the 
money therefrom arising (after paying expen- 
ses) in payment and discharge of the debts due 
the assignees, and for which they are holden as 
sureties, and pay the surplus to the assignor, or 
to such person as he shall appoint ;" — i/leW, (1), 
that this did not give the assignees power to 
sell on credit; (2), nor power to compound 
with creditors; (3), nor was the preference 
given unlawful, or a violation of the statute 
against fraudulent conveyances; and (4), this 
purporting on the face of it to be but a partial 
assignment, must be so regarded until the con- 
trary be shown, and therefore not a violation of 
the statute of 1843 against general assignments. 
MuMejf V. Noyes, 36 Vt. 462. 

51. Stat. 1852. This Statute of 1843 was 
repealed by implication by Stat. 1852, No. 18, 
relating to assignments. Farr v. Brackett, 80 
Vt. 344. 

52. Held, by a majority, that the Act of 1852, 
No. 18, embraced other than general assign, 
ments, and that an assignment of a portion of the 
debtor's property for the benefit of a part only of 
his creditors, not executed according to the pro- 
visions of that act, was inoperative as against an 
attaching creditor. Pastumpsie Bank v. Strong^ 
42 Vt. 295. 

53. In order that a conveyance should come 
within the statute regulating assignments (Stats. 
1852 and 1855), there must be a trust created for 
the benefit of some person other than the as- 
signee, or grantee. If made directly to a credi- 
tor to secure a debt of the grantor, or a liability 
incurred for him, it does not come within the 
statute. McGregor v. Chane, 37 Vt. 225. Noyen 
V. Brmm, 33 Vt. 442. 

54. Under the Assignment Act of 1862, No. 
18, and the like Act of 1857, No. 11, the filing 
of a copy of the assignment, &c., in the clerk's 
office is a sufilcient taking of possession by the as- 
signee, to prevent an attachment of the assigned 
property. Vail v. Peck, 27 Vt. 764. Mixn-e v. 
Smith, 35 Vt. 644. 

55. A father leased his farm, farming tools 
and stock to his son for three years, at a stipu- 
lated yearly rent to be paid to the lessor's bro- 
ther, to be applied on the lessor's indebtedness to 
such brother, and the lessee to keep one cow for 
the lessor on the farm. The lessor owed debts 
to others than his brother and was insolvent, 
and the lease was all of his attachable property, 
except an old horse worth perhaps $40. A 
creditor of the lessor attached the leased per- 
sonal property. In an action therefor by the 
lessee ; — Held, that the lease was not an assign- 
ment in such sense as to subject it to the special 
re(}uirement8 necessary to the validity of assign- 



ments either at common law or under the stat- 
utes, and that it was upon its face valid as against 
the general creditors of the lessor. Stariky v. 
Bobbins, 36 Vt. 422. 

56. Law of place. A voluntary assign- 
ment for the benefit of creditors, made accord- 
ing to the laws of the domicile of the assignor, 
will pass the personal property assigned where- 
ever situate, unless its operation is limited or 
restrained by some local law or policy of the 
State where the property is situate. Hanford 
V. Paine, 32 Vt. 442. 

57. A resident of New York made in that 
State an assignment of all his property for the 
benefit of his creditors. Among his property 
was an interest as partner in a stock of goods 
in a store in Vermont, which his partner, a resi- 
dent of Vermont, carried on. The assignment 
was valid by the laws of New York, but was 
not according to the Vermont Statute of 1852 
(G. S. c. 67), relating to assignments. Held, 
that this statute did not apply to foreign assign- 
ments, and that the assignee, having taken pos- 
session of the stock of goods under the assign- 
ment, could hold them against the attaching 
and trusteeing creditors of the assignor. lb. 

58. Batification. An assignment void (f. 
e. voidable) under the statute, may be remedied 
by a new assignment conforming to the statute, 
or by further declarations of trust, &c.. Mer- 
rill V. EngU^by, 28 Vt. 150. 

59. And it may be affirmed by the creditors 
assenting to it, so as to be binding not only up- 
on themselves, but as against other creditors, if 
it be such a disposition of the effects as the 
debtor has a right to make. lb. 

60. A general assignment in trust for the 
benefit of creditors, which was void as to the 
plaintiff not assenting thereto, was held good as 
to every thing done under it down to the time 
that the plaintiff expressed his dissent by attach- 
ing a part of the estate assigned. Therassan v. 
Hiekok, 37 Vt. 454. 

61. Where a creditor, in such case, brought 
a trustee process against the trustee named in 
the assignment, this was held a ratification both 
of the assignment itself and of any disposition 
of the property which the trustee had made 
under it. Bishop v. CatUn, 28 Vt. 71. 



ASSOCIATIONS. 

1. Written articles. Persons associating 
under written articles for the purpose of build- 
ing a meeting house, substantially, but not 
wholly, in accordance with the Act of Nov. 10, 
1814, in addition to that of Oct. 26, 1797, were 
held to have become a corporation, although the 
acts were not referred to in the articles, nor 
did the articles allude to the creation of a cor- 



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ASSOCIATIONS. 



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poraticm. Rogen v. Danby UniversaUstAss^n., 
19 Vt. 187. 

2. Right of control. The right to coDtrol 
and manage the affairs of a voluntary associa- 
tion rests with the majority of the individual 
members. Though they may make constitu- 
tions and pass by-laws which they declare shall 
not be altered except in a certain way, as by 
the concurrence of two-thirds, &c., yet these 
may be altered or abrogated by the same power 
which created them: viz, a majority. Smith 
V. JV^Zftwi, 18 Vt. 511. 

3. The right to the control of the property 
ci an association for religious worship, and of 
electing and employing a minister, is vested in 
the corporate body, or in the majority of the 
individual members. The relation of the min- 
ister chosen and ordained over such voluntary 
society, agreeably to the usages of the denomi- 
nation or church to which they profess to belong, 
cannot be dissolved against his will and that of 
a majority of the association, by the proceedings 
of any 'ecclesiastical tribunal whatever. lb. 

4. A majority vote of a church and society, 
acting as an existing organized association in a 
collective quctsi corporate character, binds the 
minority — ^as to compromise a suit. HorUm v, 
Baptist. Church, de., 84 Vt. 309. 

5. Where by the constitution of a religious 
society, a vote \&y\ng a tax was required to be 
l>as8ed by two- thirds the members present ;— 
Heid, that where the record simply stated that 
it '^ was voted'' to lay the tax, the court could 
not assume that it was by a two-thirds vote. 
Perrin v. Qranger, 90 Vt. 696. 

6. Ohnrcli Law. The canon law of the 
Roman Catholic Church has no force or au- 
thority in this State, as such, and is not to be 
considered in determining the legal rights of par 
ties except so far as recognized in or made part 
of some agreement under which those rights 
are derived. O'Hear v. De Goeshriand, 88 Vt, 
598. 

7. We liave no religious establishment, no 
ecclesiastical law, or courts, established by any 
authority. All their laws are wanting in this 
essential requisite to give them any authority, 
that they are not prescribed by the supreme 
poteer in the State, And though they may form 
constitutions, enact canons, laws or ordinances, 
establish courts, or make any decisions, decrees 
or judgments, yet they can have only a volun- 
tary obedience, and cannot affect any civil 
rights, immunities or contracts, or alter or dis- 
solve any relations, or obligations, arising from 
contracto. When their proceedings are to be 
examined by ordinary tribunals of justice, their 
power is a phantom, and they can receive no 
other consideration than the regulations of any 
other voluntary associations, formed for trifling, 
or for grave and important purposes. WHUams, 
C. J., In Smith v. Nelson, 18 Vt. 549. 



8. By-laws. In 1862 F became a member 
of a voluntary charitable society, by the by-laws 
of which the members, by paying their regular 
assessments, were entitled to 26 cents per day 
during their sickness, and the widow of each 
member dying should be paid 25 cents per day, 
so long as she remained a widow, &c. ; but so 
long as there should be $20 in the treasury the 
society should not reduce its aid to the sick. 
The constitution provided for changes in the 
by-laws, and how such changes might be made. 
In 1868 the society became incorporated, the 
charter providing that the society might alter 
or change its by-laws. The by-laws remained 
unchanged until August, 1869, when the cor- 
poration adopted new by-laws providing that 
such widow should receive 25 cents per day, 
until she should get $200, in full of her right. 
F died in January, 1869. The plaintiff ^fas his 
widow, and had received the $200. In a suit 
to recover the 25 cents per day from the death 
of F, less the $200 received -y—Held, that the 
society had the right so to amend its by-laws, 
and thus limit the claim,— this being by a gen- 
eral law applicable to all, and there being no 
suggestion of fraud, or that the regulation was 
not wise and salutary ; that such change in the 
by-laws was assented to by F in becoming a 
member of the society, with such right of 
change expressed in the constitution. Fugure 
V. Mutual Society of St Joseph, 46 Vt. 862. 

9. Abandonment. The ^' Mount Lebanon 
Royal Arch Chapter" of Free Masons, an in- 
corporated association, in 1836 voted to and 
did dispose of all their real and personal prop- 
erty, being their hall, furniture and equipment, 
and of their funds to the trustees of an academy, 
to use the interest, '*and the principal to be re- 
turned when called for by this institution." 
For 28 years the Chapter held no meetings, 
elected no oflBcers, and did no act required by 
their laws and rules, and was without visible 
sign of existence. They then procured a new 
charter from the ** State Royal Arch Chapter," 
certified as a renewal of their ori^nal charter. 
On a bill in equity by the members (embracing 
some new ones) of the present Chapter, claim- 
ing as an association or society, and not in their 
individual and personal rights, to recover of 
said trustees the principal of said fund -^—Held, 
that the original association had become dis- 
solved and ceased to exist, by abandonment 
and non ttser, and that the new association had 
not legally succeeded to their rights or prop- 
erty, and the bill was dismissed. Strickland y, 
Prichard, 87 Vt. 824. 

10. Contracts. Under a valid contract to 
pay an annual sum to a reli^ous society for the 
support of the gospel ; — Held, that the party 
could not release himself by giving notice of a 
change in his religious sentiments, and with- 
drawing himself from the church and society 



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ASSOCIATIONS.— ASSUMPSIT. 



and joining another, although by the articles of 
compact a member ceasing to pay ceased to be 
longer a member of the society. Cong. Society 
V. &wan, 2 Vt. 222. 

11. The meml)ers of a joint stock company 
are liable, in soUdo, for the debts of the com- 
pany. Cutler V. Thmnas, 25 Vt. 73. 

12. Suit. The treasurer of a voluntary as- 
sociation for charitable purposes, after its dis- 
solution, was, on bill brought by the remaining 
members, decreed to account for funds of the 
association in his hands, to be disposed of ac- 
cording to the original intention of tha associa- 
tion. Penfleld v. Skinner, 11 Vt. 296. 

13. The treasurer of an unincorporated re- 
ligious association was allowed to maintain a 
bill to recover, for the association, a legacy 
given to it, he suing in behalf of the whole. 
Any«iembers of the association might main- 
tain such suit in behalf of the whole, 'if recog- 
nized by them. Smith v. Nelmn, 18 Vt. 511. 

14. Proceedings of the presbytery and synod 
of the Associate [Scotch] Church, in relation to 
the Associate congregation of Ryegate, consid- 
ered and overhauled. lb, 

15. Committee. The building committee, 
or agents, of a voluntary association for the 
building of a meeting house, of which they 
and the plaintiff are meml)ers, are not liable 
to an action for services rendered or mater- 
iai furnished by the plaintiff in the building 
of the house, he knowing the facts, although 
done at the request of the defendants, where 
it does not appear that the defendants made 
an express promise to pay, or pledged their 
individual credit, or tliat funds of the asso- 
ciation were in their hands with which to 
make the payment. Abbott v. Cobb, 17 Vt. 
698. Cheeny v. Clark, 8 Vt. 481. 12 Vt. 
825. 

16. The fixing of the amount of the capital 
stock in the articles of association for the build- 
ing of a meeting house, was held, under the cir 
cumstances, not to limit the building committee 
as to cost of building. Rogers v. Danby Univ. 
Society, 19 Vt. 187. The same, also, where the 
expense was to be based on an estimate of the 
number of pews, and the average price at which 
they should be sold. Sa/wyer v. Meth. Ep, Socy. 
inBoyalton, 18 Vt. 405. 

17. Sale of pews. In order to justify the 
sale of a pew for non-payment of a tax or as- 
sessment, it is necessary, (1), that ihe shares be 
defined ; (2), that the assessments be upon the 
shares ; (8), that the forfeiture or sale, as. well 
as the assessment, be in conformity with the 
constitution and by-laws of the society. Perrin 
V. Granger, 88 Vt. 101. S. C. 30 Vt. 595. 

See MxKTiNQ House. 



ASSUMPSIT. 

1. When malntaJTiable, and when not. 

The allowance of a claim by oommissicmers is 
matter of record ; — ^assumpsit does not lie there- 
on. Woods V. PeWH, 4 Vt. 556. 

2. Where the time for the performance by 
the plaintiff of a contract under seal is enlarged 
by parol agreement of the parties, the plaintiff's 
remedy for a breach is assumpsit, and not cov- 
enant, or other action counting upon the con- 
tract as under seal. Sndth v. Smith, 45 Vt. 
488. 

3. Assumpsit will not lie against a sheriff, 
or other officer, for a misfeasance, or non-feas- 
ance, in the execution of his official duties. 
WaUmdge v. GHmrold, 1 D. Chip. 162;— nor 
against the sheriff upon the promise of his dep- 
uty, expressed in his receipt given for an exe- 
cution, that he will execute it and return it 
according to law. Tomlinson v. Wheeler, 1 Aik. 
194 ;— nor against a tax collector for neglect to 
levy, collect and pay over taxes. Charleston v. 
Stacy, 10 Vt. 562. 

4. Where the defendant, without fraud, 
claimed to pass a turnpike gate, toll free, on the 
groimd of exemption or privilege, and on such 
claim was permitted to pass; — Held,, ih&i an 
action of assumpsit did not lie to recover the 
tolls, although his claim of exemption, or priv- 
ilege, was not well founded. Center Turnpike 
Co. V. Smith, 12 Vt. 212. 

5. A postmaster, who receives a letter con- 
taining money which is lost through his lack 
of proper care, though liable for his neglect in 
a proper action, is not liable in an action for 
money had and received, unless he has put the 
money to his own use. Dan/orth v. Chant, 
14 Vt. 283. 28 Vt. 668. 

' 6. Where the plaintiff purchased wool for 
the defendants and was to have a share of the 
profits on the defendants' sales, the court say : 
Wliether the plaintiff's remedy may be assump- 
sit, or must be account, depends upon whether 
he had any property in the wool, and so in the 
specific money for which it was sold; — or 
whether the form of the contract was only a 
mode of determining his compensation for ser- 
vices. MaUocJcs v. Lyman, 16 Vt. 118. 

7. Matters of tort. Assumpsit for goods 
sold does not lie where the goods were taken 
tortiously, there being no sale in form or fact. 
WincheU v. :N^oyes, 23 Vt. 808. 

8. Where the defendant wrongfully sold a 
note belonging to the plainti£[ •,—Held, tliat al- 
though the plaintiff could maintain trover, he 
might waive the tort and recover in assumpsit 
for money had and received. Wier v. Church, 
N. Chip. 95. 

9. Where the plaintiff's property has been 
wrongfully taken or appropriated and convert- 
ed into money, he may waive the tort and re- 



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cover of the wrong doer in assumpsit, in a 
count for money had and received. Bumap 
V. Partridge, 8 Vt. 144. 8coU v. Lance, 21 
Vt. 513. Stectrru v. DilUngham, 22 Vt. 624. 
Phelps V. Chmant, 30 Vt. 277. Elwell v. Mar- 
tin, 33 Vt. 220. Kidney/ v. Persons, 41 Vt. 
386. Turnpike Co. v. Smith, 12 Vt. 217. 

10. But it must appear that the defendant 
has actually received money to the use of the 
plaintiff, or that he has received that which he 
considered as equivalent thereto and accounted 
for it as such. WiUiams, J., in Bumap v. 
Partridge, 3 Vt. 146. 

11. As, a promissory note or negotiable 
paper, or the satisfaction of a money demand. 
Praut, J., in Kidney/ v. Persons, 41 Vt. 392. 

12. The conversion into money may some- 
times be presumed as matter of fact, as where 
other property has been received which is sal- 
able and time has elapsed without accounting 
for it ; and perhaps where the property was 
disposed of at a fixed price, or was purchased 
for the purpose of selling again, and sufficient 
time has elapsed for that purpose and it is not 
otherwise accounted for. WiUiams and Prout, 
J. J., supra. Flower Brook Mfg. Co. v. Buck, 
18 Vt. 238. 

13. But where the defendant has received 
no money, as where he wrongfully sold the 
plaintiff's property and took his pay in a har- 
ness, such action will not lie. Kidney v. Per- 
sons, 41 Vt. 887. 

14. Under a count for money had and re- 
ceived from the sale of timber wrongfully cut 
and converted, where the plaintilTs claim was 
only to recover the net proceeds, or the value 
of the '*8tumpage"; — Held, that there could be 

« no recovery w4iere the defendant had not re- 
ceived enough to pay the expense of cutting 
and marketing the timber. Lemington v. 
8ter>ms, 48 Vt. 38. 

15. One cannot of his own mere motion 
waive a tort and sue therefor in assumpsit, or 
on book account. Thus, he cannot convert a 
trespass upon his lands by the defendant's sheep, 
into a charge for pasturing the sheep. Steams 
V. Dillingham, 22 Vt. 624. 

16. Nor recover in this action or in book 
account for a quantity of manure taken and 
appropriated under a claim of right, beyond the 
amount which the defendant had a license to 
take. Seott v. Lance, 21 Vt. 507. 

17. Nor, in an action on book, for money 
delivered to the defendant only to be carried 
by him to a third person, which the defendant 
received for that purpose, and agreed but 
neglected to deliver. Brurj/ v. Douglas, 85 
Vt 474. 

18. Otherwise, where the money is received 
to be used for the benefit of the plaintiff, and 
to be accounted for. WMUng v. Corwin, 5 Vt. 
451. 



19. Instances given where a person is vir- 
tually made liable in assimipsit for a tort. 
Center Tumpike Co. v. Smith, 12 Vt. 212. 

20. Other cases. C, an apparent agent 
of the defendant, used the plaintiff's railroad 
ties, without license from the plaintiff, in the 
repair of the defendant's railroad ; and after- 
wards agreed with the plaintiff that the defend- 
ant should pay for them ; to which the plaintiff 
assented, supposing C to have authority to pur- 
chase ties for the defendant. C in fact had not 
such authority. Held, that the plaintiff could 
recover in assumpsit. BeecJier v. Grand Trunk 
R. Co., 48 Vt. 188. 

21. Where the plaintiff paid the defendant 
money upon a note, and the defendant failed to 
indorse the payment, and afterwards denied 
having received the money and claimed the 
whole note;— ZT^-W, that the defendant was 
liable for the money paid in indebitatus assump- 
sit. Eastman y. Hodges, 1 D. Chip., 101 (1797). 

22. Assumpsit lies against a bank, after 
notice and demand, upon a bill of the bank des- 
troyed, but not upon a bill lost. Ross v. Bank 
of BurUngton, 1 Aik. 48. 

23. If one decoy another from a foreign 
government, under promise not to sue or arrest 
him, and in violation of his faith he does sue, 
or arrest him, the process may be avoided for 
the fraud ; or assumpsit will lie for such breach 
of promise to recover just damages. But if, 
instead of avoiding the process for the fraud, 
he pleads to the action and judgment passes 
against him, he cannot in such action of assump- 
sit include as damages the amount of such judg- 
ment. Steele v. Bates, 2 Aik. 388. 

24. The defendant received of the plaintiff 
an absolute deed of land, but with the parol un- 
derstanding that it should be sold, if necessary, 
and the avails applied towards the discharge of 
a liability assumed for the plaintiff. The de- 
fendant went into possession of the land, treat- 
ed and used it as his own absolutely, neglected 
a favorable opj)ortunity to sell it, and compell- 
ed the plaintiff to discharge out of other proper- 
ty such assumed liability. The plaintiff brought 
this action of assumpsit for land sold, and on 
the trial the defendant tlaimed that the transac- 
tion was an absolute sale, and that he had paid 
for the land. Held, that the defendant, this 
claim failing, could not also set up the trust 
character of the transaction as a defense, but 
that the plaintiff was entitled to recover the 
value of the lands, with interest from the time 
of the discharge of the liability assumed by the 
defendant for the plaintiff. Crane v. Thayer, 
18 Vt. 162. 

25. Trusts. Matters of trust are of original 
and special equity jurisdiction, and assumpsit 
does not lie to recover money held in trust, 
where parties not on the record are interested In 
the distribution, Congdon v. Cdhoon, 48 Vt. 49. 



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26. Oommon money counts. The plain- 
tiff, under a parol contract with the defendant 
for the purchase of lands subject to a mortgage 
but to be of no effect if the defendant did not 
obtain full title thereto, paid a part towards the 
purchase. The defendant suffered the land to 
pass on a foreclosure of the mortgage. Held, 
that the plaintiff could thereafter recover the 
sum so paid, in an action of general indebitatus 
assumpdtj without demand. Way v. Raymondy 
16 Vt. 871. 

27. Where a judgment, after being paid by 
the defendant therein, was reversed on writ of 
error ; — Held^ that an action for money had and 
received did not lie against the plaintiff in that 
suit where he was, to the knowledge of the de- 
fendant therein, a mere nominal party — the suit 
being prosecuted wholly for the benefit of a 
third person, and where the judgment was paid 
to such third person, and not to the plaintiff. 
CaUin v. Allen, 17 Vt. 158. 

28. Under the statute (G. 8. c. 30, s. 6) 
providing that a town may (imder certain cir- 
cumstances), "by an action," without specif y- 
iDg what form of action, recover of the town 
where a pauper was last legally settled, the 
expenses of maintaining such pauper; — Heldy 
that general indebitatus assumpsit was a proper 
action. Pawlet v. Sandgate, 19 Vt. 621. 

29. The plaintiff's clerk, having authority 
to borrow money on the credit of the plaintiff 
to be used in the plaintiff's business, borrowed 
a sum on the plaintiff's credit with the intent, 
unknown to the lender, to use the same in gam- 
bling, and lost the same, together with other 
money wrongfully taken from the plaintiff's 
store, in gaming with the defendant. Held, 
that all this was the plaintiff's money illegally 
obtained and held by the defendant, and that 
he was liable therefor to the plaintiff in assump- 
sit, as for money had and received. Bwmham 
V. Fisher, 25 Vt. 514. 

• 30. Assumpsit for money had and received 
lies to recover back money paid upon a false 
claim, not made in good faith, nor supposed to 
be right, if there is duress, or any undue advan- 
tage taken of the payer's situation, or if paid 
under the terror of inceptive legal proceedings, 
fraudulently instituted. SaHwell v. HorUm, 
28 Vt. 370. 

31. General indebitatus assumpsit on the 
common money counts: — the plaintiff's evi- 
dence was, that the defendants agreed to pay 
him $800, in consideration that he would be- 
come a substitute for a drafted man. The de- 
fendants' evidence was that they would pay 
him $100, and that he should have in additian 
the bounties which might be paid by the State 
of Maine and the United States, understood by 
both parties to be flOO each. Held, that if the 
contract was as claimed by the defendants, the 
plaintiff could not recover in this action the 



$100 expected to be received from the U. S., 
but which was not paid, nor payable under the 
U. S. regulations, to such substitute. Qlaf>er 
V. Greenlaw, 88 Vt. 182. 

32. The defendant having bargained with 
N for the purchase of his farm, stock and pro- 
duce, but taking no deed, agreed with the plain- 
tiff by paroli that they together would carry 
out the contract with N, sell the property in a 
short time, and divide the profits. The plain- 
tiff advanced money to the defendant to be 
paid to N towards the property, and assisted in 
the transaction. The property was all sold in 
the name of N, but under the direction of the 
defendant, the purchasers taking their deeds 
direct from N. The proceeds were received by 
the defendant, and there was a balance of 
profits in his hands. In an action of assumpsit 
to recover the one-half of such profits I—Held, 
Ist, that such action would lie ; 2d, that the 
contract was upon suflldent consideration ; 8d, 
that it was not within the statute of frauds. 
Bruce v. HasUngs, 41 Vt. 880. 

33. Under a parol agreement, that if the 
plaintiff would work upon the defendant's farm 
and aid in paying off incumbrances the defend- 
ant would deed to the plaintiff the farm (or 
a part of it), where the plaintiff performs on 
his part and the defendant refuses to convey, 
or if there is a mutual abandonment ef the 
contract, the plaintiff may recover for his ser- 
vices and money paid, on the common counts m 
assumpsit. Stone v. Stone, 48 Vt. 180. Qrdkam 
V. Chandler, 38 Vt. 569. 

34. Where money was deposited with the 
clerk for a defendant in a petition of forecloa- 
ure, as a condition imi)osed by order of the 
chancellor for the passing of a decree, and the ^ 
decree was taken and the money paid over to the 
defendant, it was held^ that the plaintiff's obvious 
misadventure in the foreclosure suit could not 
be corrected in an action of assumpsit to recover 
back the money. Sweet v. Tucker, 43 Vt. 856. 

35. General assumpsit lies to recover the 
consideration paid for the purchase of property, 
where the sale is avoided for fraud, or where 
the consideration entirely fails. James v. Hod^- 
den. 47 Vt. 127. 

36. Indebitatus assumpsit for money lent 
was held to lie upon a due bill of the following 
tenor : * * Due F. H. eighty dollars on demand. " 
Hay V. Hide, 1 D. Chip. 214. 

37. Where the plaintiff, being surety for a 
third person, paid the debt upon the guaranty 
of the defendant that he would see the debt 
paid and save the plaintiff harmless therefrom ; 
—Held, that a recovery could be had under the 
common count in assumpsit for money paid at 
the defendant's request. Lapham v. Barrett, 
1 Vt. 247. 

33. {Money's worth). The plaintiff, being 
surety for the defendant, gave his own not€ for 



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the amount which the creditor received as pay- 
m^it. Heldy that this waa equivalent to the 
payment of so much money, and sustained a 
count for money paid. Lapham v. Barnes, 2 
Vt. 213. 

39. Where, on the dissolution of a partner- 
ship between the plaintiff and the defendant, 
the defendant retained a portion of the partner- 
ship assets suflicient to pay a particular partner- 
ship debt, and agreed with the plaintiff to pay 
it, and the plaintiff was afterwards obliged to 
pay that debt ;—IIeld, that the plaintiff could 
recover for the amount so paid upon the com- 
mon money counts in assumpsit-— such assets 
being treated as money's worth, and fairly pre- 
sumed to have produced money. Hicks v. Cot- 
triU, 26 Vt. 80. 

40. The defendant authorized the plaintiff 
to settle a suit pending against him by a third 
person, and pay $12 therefor ; and he settled 
the same by giving his own note for $13, and 
the claim was discharged. Held, that the de- 
fendant had received money's worth, and that 
the plaintiff could recover in assumpsit, on 
the count for money paid, $12, without prooi 
of payment of the note. Houston v. Fellows, 
27 Vt. 634. 

41 . Indebitatus astumpsU for money had and 
received was held not to lie to recover interest 
accrued on the plaintiff's execution against the 
defendant, which the plaintiff had forborne to 
collect at the defendant's request, and on his 
promise to pay such interest. Beedle v. Grant, 
lTyL483. (1802.) 

42. An order drawn by the plaintiff on a 
third person in favor of the defendant, is com- 
petent evidence under a count for money had 
and received. Phelps v. MoU, Brayt. 76. 

43. Assumpsit for money had and received 
does not lie to recover back money voluntarily 
paid upon a note given in consideration of a 
contract to build a house, which has not been 
performed. HolUns v. Walker, Brayt. 222. 

44. G drew an order on B, in whose hands 
he had property for sale, in favor of 8 for a cer- 
tain sum. B declined to accept the order, but 
promised S, If the order was left with him, to 
pay on account of it any balance, not exceeding 
that amount, which might remain in his hands 
after his own claims should be satisfied. S ac- 
cepted the promise and left the order with B. 
Held, that after the subject matter of the ac 
counts between G and B was closed so that the 
balance could be ascertained, and after demand, 
B was liable to 8 on a count for money had and 
received. StUton v. Burnett, 1 Aik. 197. 

45. The defendant by deed, without cove- 
nants, and for '^a valuable consideration," as 
expressed, conveyed to the plaintiff all the 
right, title, interest and claim which he, as heir, 
had in the estate of his ancestor deceased. He 
afterwards received certain moneys distributed 



to him as heir. Held, that he was liable to the 
plaintiff therefor in assumpsit for money had 
and received; — that no action lay upon the 
deed, but it was evidence in this action to show 
the plaintiff's right to the money. Colgrove v. 
Fillmore, 1 Aik. 847. 

46. The plaintiff conveyed land to the de- 
fendant in trust to sell, and, out of the avails, 
to indemnify himself against certain liabilities, 
and account. He sold the land in part upon 
credit, by consent of the plaintiff, taking a note 
therefor payable to his own order, the cash pay- 
ment not being sufiicient for his indemnity. 
Held, that until the money was received upon 
the note, or at least until expiration of the 
time of credit, the defendant was not liable on 
a count for money had and received. Beach v. 
Dorwin, 12 Vt. 139. 

47. The county of W being about to build 
a court house, the plaintiff, being interested in 
the question of location, signed a subscription 
paper, promising to pay a certain sum to the 
defendant ^* for land sufficient to set a court 
house upon," provided the court house should 
be located in the particular place specified. The 
defendant thereupon conveyed to the county 
the land specified, by a deed satisfactory to \he 
locating committee, containing a clause that 
the land should revert to him whenever the 
county should voluntarily cease to occupy it as 
a site for a court house. After this d^ was 
recorded the plaintiff paid his subscription. 
The court house was erected on the spot, and 
in about two years was consumed by fire. The 
county then determined t6 abandon that site 
and not rebuild upon it, unless the entire lot 
could be procured without expense to the 
county ; and another subscription was raised 
and the whole lot purchased, the defendant get- 
ting on this second purchase a price equal to 
the value of the entire lot at the time of the 
first purchase. In an action of assumpsit for 
money had and received to recover back the 
amount of his subscription ; — Held, that here 
was no fraud, mistake, or failiu'e of considera- 
tion which entitled the plaintiff to recover. 
Barnes v. BayUes, 18 Vt. 430. 

48. A writing in these words : ** For value 
received of Cummings & Manning, or order, 
thirty dollars and eighty-three cents on demand 
and interest annually," signed by the defend- 
ant, was held to express with proper certainty, 
that the defendant had received money of the 
plaintiffs to the amount of $30.83, and was 
sufficient to sustain a count for money had and 
received ; and it seems, the omission in the note 
might be supplied by intendment. Cummings 
V. Qassett, 19 Vt. 308. 

49. Assumpsit for money had and received 
is "an appropriate action" to recover back 
money paid for liquors sold in violation of law. 
(G. 8. c. 94, s. 82).. Laport v. Baeon, 48 Vt. 176. 



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50. The plaintiff tought to recoyer a balance 
due him on settlement, and also an additional 
sum paid to defendant as usurious interest and 
allowed in the settlement. Held, that this could 
not be done on the basis of an account stated, 
for the defendant had never agreed to the larger 
sum, and it could not be assumed that he would 
have done so if the plaintiff had refused to 
make the allowance he did. EatteU v. Marqf, 
47 Vt. 627. 

51. The plaintiff contracted by parol with 
the defendant for the lease of the defendant's 
tavern house for one year from a futiu-e day 
ni^ed, and delivered to the defendant a watch 
in part payment of the agreed rent. The de- 
fendant aiterwards refused to carry out the 
agreement, and tendered the watch back to the 
plaintiff, which the plaintiff refused to receive, 
and brought his action of assumpsit to recover 
for the watch. Held, that the title to the watch 
vested in the defendant bv the contract, and 
that it did not become re- vested in the plain- 
tiff by the tender ; and that the defendant was 
liable therefor as for goods sold. HoMley v. 
Moody, 24 Vt. 608. 

52. No recovery can be had upon the money 
cotmts in assumpsit, against one who acted as 
known agent of the owner in the sale of lands, 
where the money was paid by the plaintiff 
directly to such owner. Dyer v. Ora/oes, 87 
Vt. 869. 

53. — for use and occupation. Assump 
sit for use and occupation will lie upon a con- 
tract expressed or implied, where a tenant 
enters and enjoys the premises by the consent 
or permission of the owner. Hotcard v. Ran- 
9om, 2 Aik. 252. 

54. Where the holding is by the permission 
of the owner, an implied undertaking to pay 
rent may be inferred from slight circumstances, 

Watson V. Brainard, 88 Vt. 88. 

56. Dictum, The mere fact of occupancy, 
might create a presumption of tenancy, prima 
faoie, but subject to be rebutted. Keyes v. 
HiU, 80 Vt. 759. 

56. Assumpsit for use and occupation will 
not lie» unless there is a contract, express or 
implied, in regard to the occupancy of the 
premises, by which the relation of landlord and 
tenant (subsUntially) is created between the 
parties. Hough v. Birge, 11 Vt. 190. Keyes v. 
HiU, 80 Vt. 759. 8taoy v. Vt Central R. Co, 
82 Vt. 551. Watson v. Brainard, 88 Vt. 88. 
44 Vt. 59. 

57. It will not lie where the defendant's pos. 
session was under a contract of purchase, which 
failed without his fault. Hough v. Birge, Way 
V. Raymond, 16 Vt. 871. 44 Vt. 59. 

58. Nor where it was under a claim, or 
agreement to procure the title by proceeding? 
in intitum under a statute. 8ta^ v. Vt. Cen 
PralR, Ci>., 82 Vt. 551. 



59. The plaintiff and her daughter occupied 
a homestead left by the plaintifTs husband at 
his decease, but not set out by the probate 
court. In the plaintiff's absence from home, 
the defendant married the daughter and moved 
upon the phice and. continued to occupy it, re- 
fusing, on demand, either to buy it, leave it, or 
to pay rent, but offering to let the plaintiff oc- 
cupy with him, which she declined to do. The 
plaintiff then brought ejectment, which failed 
for want of proof of proper notice to quit. In 
assumpsit for use and occupation, the court 
directed a verdict for the plaintiff. Held, 
erroneous, — and that the case should have been 
submitted to the jury, to find whether or not 
an implied contract of tenancy existed. Cham- 
berlin v. Donahue, 44 Vt. 57. 

60. Indebitatus assumpsit for use and occu- 
pation does not lie upon a contract for agist- 
ment, where the plaintiff retains possession of 
the land. Hoteard v. Ransom^ 2 Aik. 252. 

61. To recover for use and occupation, the 
declaration must be appropriate for such claim, 
— as, a count for use and occupation. It cannot 
be recovered under a count for money had and 
received. Bea^ v. Dorwin, 12 Vt. 189. 

62. Under the common money counts, the 
indorsee of a negotiable promissory note may 
recover against the maker. Chase v. Bumham, 
13 Vt. 447. Brigham v. Hutehins, 27 Vt.'569 :- 
although the indorsee be one of the payees 
and the note is indorsed by the payees in blank. 
Malley v. Weinman, 48 Vt. 180. 

63. An action cannot be sustained upon the 
money counts by the introduction of a promis- 
sory note not due at the commencement of the 
suit. This would be absurd. Hofrington v. 
Rathbun, 11 Vt. 58. 

64. Special counts. Where there is a 
special contract, so long as the parties profess 
to proceed under it there can be no recovery in 
general assimipsit, nor in the action of book ac- 
count, for any labor performed under it, but 
the remedy must be upon the contract. Camp 
V. Baa-ker, 21 Vt. 469. MyHck v. Slason, 19 
Vt. 121. 

65. Damages sustained by the non-perform- 
ance of an executory contract for the purchase 
of property, cannot be recovered under the 
general money counts in assumpsit. Hempen- 
imy V. 8mith, 28 Vt. 701. 

66. Where a contract is for the manufacture 
and delivery of an article at a future day, and 
the party is prevented from completing his 
contract by the fault of the other party, he can- 
not recover as for goods sold and delivered, op 
for work and labor and materials furnished, 
under the general counts in assumpsit, but is 
out to a special count to recover his damages 
:or breach of the special contract. Allen v, 
ThraU, ?6 Vt. 711. Curtis v. Smith, 48 Vt, 
116. 



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67. A declaration in assumpsit need be spe- 
dal, only when the plaintiff claims damages for 
the breach of a special contract. Whatever 
stipulations may have been made about the 
price, mode or time of payment, if the terms 
have transpired so that money has become due, 
and nothing remains to be done under a special 
omtract but to pay money, the general counts 
are sufficient. Way v. Wakefield, 7 Vt. 228. 
Mattoek9 v. Lifman, 16 Vt. 118. 8. C. 18 Vt. 
98. Perry v. Smith, 22 Vt. 301. Oroot v. 
Story, 41 Vt. 588. Wainwright v. SPraw, 16 
Vt. 215. Kent v. Bincker, 38 Vt. 148. Wil- 
kin V. Stevens, 8 Vt. 214. 

88. In this State it has been repeatedly and 
uniformly held, that where goods are sold, or 
services performed under a special contract for 
payment in other goods, or in services, and the 
time of payment has elapsed, and payment has 
not been made accordmg to the contract, such 
special agreement is no obstacle to a recovery 
in general assumpsit or by an action of book 
account. Poland, C. J.— and so held in Kent 
V, Bowker. Way v. Wakefield, Steams v. Haven, 
16 Vt 87. Mattocks v. Ijyman. Porter v. Mwn- 
ger, 22 Vt. 191. 

89. Issue and evidence. In assumpsit, 
declaring in one count upon a special contract 
and adding the general coimts, a demurrer was 
sustained to the special count. On trial under 
the common counts ;^ffeld, that the special 
contract could not be read in evidence, for that 
it did not support the general counts. Culver 
V. Bamet, 1 Tyl. 182. 

70. MThere the declaration contained a spe- 
cial count upon a contract and also the common 
money counts, and the special count and the 
proof only tended to show that the plaintifiF had 
advanced his money at the defendant's request 
and for his benefit, upon a promise of being re- 
imbursed in a particular manner at a day cer- 
tain, and that time bad expired ;~Held, that a 
recovery could be had on the common counts, 
althou^ the contract set up in the special 
count might not be proved as laid. Stevens v. 
Taleott, 11 Vt. 25. 

71. In assumpsit for services performed 
under a special contract and for damages for 
improperly discharging the plaintiff; — Held, 
that under the general issue evidence was ad- 
missible for the defendant, both as tending to 
show a good cause for such discharge and to 
reduce the value of the plaintiff's services, that 
it was part of the contract of hiring that the 
plaintiff should act as foreman of the defendant 
in his absence and keep his men industriously 
at work, whereas the plaintiff had induced the 
men to neglect their work and to lose time. 
Stoddard v. HiU, 38 Vt. 459. 

72. In assumpsit part pa3rment need not be 
•pedaUy pleaded. Britton v. Bishop, 11 Vt. 
70. (Changed by G. 8. c. 38, s. 15.) 



73. Pleading. In an action on simple con- 
tract, a plea denying any consideration is bad 
on special demurrer, as amounting to the gen- 
eral issue. University of Vt, Ac., v. Boater, 42 
Vt. 99. 

74. Declaration held bad on demurrer for 
not setting forth a valid consideration for the 
defendant's promise ; also for stating that the 
defendant verbally promised, in a case required 
by the statute of frauds to be in writing. Peo- 
plt^s Bank v. Adams, 48 Vt. 195. 

75. A declaration in assumpsit upon a war- 
ranty alleging a breach, but concluding in the 
common form of a count in indebitatus assump- 
sit for money bad and received, was held suf- 
ficient on motion in arrest, by rejecting such 
conclusion as surplusage. ParUn v. Bundy, 
18 Vt. 582. 

76. Where a judgment is set aside on xmdita 
querela, the money collected on the execution is 
embraced and recoverable under the general ad 
damnum of the writ. Aleaeander v Abbott, 21 
Vt. 476. 

77. In declaring upon a contract payable in 
such goods as the plaintiff should want, it is 
not sufficient to aver a general demand ; but it 
should be averred that the plaintiff designated 
the goods he wanted, or else that he waived his 
right to select and authorized the defendant to 
deliver such as suited his convenience. Stevens 
v. ChamberUn, 1 Vt. 25. 

78. In an action declaring specially upon a 
certificate of deposit made payable **on the 
presentation of this certificate," there was no 
averment of a demand by presentation of the 
certificate. The declaration was held ill on 
general demurrer. Bellows Falls Bank v. Rut- 
land Co. Bank, 40 Vt. 377. 

79. The plaintiff declared upon a special 
contract of the defendants, that ** for a certain 
reasonable hire and reward to be thereupon 
paid by the plaintiff to tlie defendants in that 
behalf," they would furnish a railroad car for 
the carriage of certain sheep of the plaintiff and 
would carry them therein, Ac, and alleged, as 
a breach, the refusal to furnish the car. On 
motion in arrest ; — Held, that the contract was 
susceptible of the interpretation, that the plain- 
tiff's promise was to pay for the car and freight 
at the end of the carriage, and that therefore 
the declaration was sufficient without averring 
a readiness to pay the freight at the time of de- 
manding the car. Waterman v. Vt. Central 
B. Co.,25Yi.7(yr. 

80. Where the time of payment mentioned 
in any written contract, not under seal, is en- 
larged by agreement, it is sufficient, in declar- 
ing upon such contract, to allege the non-pay- 
ment according to the contract, without noticing 
the agreement to enlarge the time ; and if pay 
ment was in fact made according to the enlarged 
time, the defendant is left to show the agree- 



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ASSUMPSIT.— ATTACHMENT, I. 



ment to enlarge the time of payment, and pay- 
ment accordingly. Pike v. MoU, 5 Vt. 108. 

81. An averment that on, &c., in consider- 
ation that the plaintiff "had then and there" 
delivered to the defendant a certain horse of 
the plaintiff in exchange for a certain horse of 
the defendant, he, the defendant, ''then and 
there " promised that the latter horse was sound, 
&c., was field to be an averment that the war- 
ranty was given at the time of the exchange, 
and not afterwards, and so there was a suffi- 
cient consideration for the promise. Wightman 
V. Carlisle, 14 Vt. 296, contradicting Blosa v. 
KiUridge, 5 Vt. 28. 

82. Paxties. Tli,e ultimate grantee of land 
incumbered by a mortgage and an intermediate 
grantor with warranty, while a bill of foreclos- 
ure was pending against them, called upon the 
mortgagor, whose debt it was, to pay the mort- 
gage debt, and he promised to do so ; but he 
failing, they jointly paid the debt. Held, that 
they could maintain a joint action of indebitattu 
(ummpsit AgeAusi him for money paid to his 
use. Mclntyre v. Ward, 18 Vt. 434. See Whip- 
ple V. Brigg», 28 Vt. 65. 

83. A bank, by mistake, surrendered to the 
defendant a note before that time discounted 
for him, and which others had signed with him 
as his sureties. Held, that indebitatus cusump- 
sit lay against him alone for the amount due 
upon the note. Vt. State Bank v. Stoddard, 1 
D. Chip. 167. 

84. Non-joinder. In an action of assump- 
sit upon the common counts, the non-joinder 
of a proper defendant must be pleaded in abate- 
ment, or the objection is waived, although no 
specification was filed or furnished. The rule in 
book account actions does not apply here. 
MeUendy v. N, E, ProtectM>e Union, 36 Vt. 81. 
Harc^ V. Clieney, 42 Vt. 417. 

85. Damages. Indebitatus assumpsit is an 
equitable action, in which the plaintiff should 
recover no more than the defendant ought in 
equity to pay. Wheeler v. Shed, 1 D. Chip. 208. 

86. The orator and the defendant were two 
of four joint executors who had given a joint 
bond for faithful administration. The other 
two ultimately became insolvent. The orator, 
by decree in chancery, had- been compelled to 
pay for the default of one of the insolvent ex 
ecutors before his insolvency, without fault of 
the orator. Held, that the defendant was liable 
to him for one-half of the sum so paid and for 
one-half of all the expenses incurred in defend- 
ing the suit in chancery — such defense having 
been reasonable, hopeful and prudent. Marah 
V. Harrington, 18 Vt. 160. 23 Vt. 593. 37 Vt. 
641. 

87. In general assumpsit to recover the con- 
sideration paid on the fraudulent sale of a pat- 
ent right, the plaintiff was allowed to recover 
what he had paid in good faith, by way of 



compromise, to the indorsee of the note he gave 
on the purchase, although the note bore a po- 
lice that it was given for a patent right ;— that, 
assuming that he might have successfully de- 
fended a suit by the indorsee, he was under no 
legal obligation to attempt it. James v. Hods- 
den, 47 Vt. 127. 

88. If the plaintiff has performed lallor on 
his own material under a contract to furnish 
a specific article or a perfected work, in esti- 
mating his damages for a breach, the value 
of the material not gone to the use of the de- 
fendant must be taken into account.- Allen v. 
Thrall, 36 Vt. 711. Curtis v. Smith, 48 Vt. 116. 

89. Jndgment. In assumpsit, the statute 
(G. S. c. 30, s. 78) does not warrant separate 
judgments against several defendants. Machine 
Co. v. Morris, 39 Vt. 393. 



ATTACHMENT. 

I. Of Personal Pkopkbty. 

1. What is attachable. 

2. What is not attachable. 

3. Bequisites and vaUdity of attaeh- 

m£nt. 

4. Bights and liabilities of attaching 

officer. 

5. Bights and liabilities of creditor as 

to debtor. 

6. Bequisites for preserving lien. 

7. Discharge ofaUachment Hen. 

8. Bailment to receiptor. 

9. Sa^ on attachment. 
II. Of Rbal Estatk. 

III. Dbfbnsb bt' Subsbqijbnt Attaghing Ore- 

DITOB. 

IV. Attachment Aided in Chanoert. 

I. Of Personal Property. 
1. What is attachable. 

1. (Generally. * 'Goods, chattels and estate.'* 
— (Statute form of process.) 

2. Bank bills, or money, can be attached or 
taken in execution, under the general provision 
in relation to goods and 'chattels, if they can be 
so taken without committing an assault and 
violating the personal security of the debtor. 
Lovejoy v. Lee, 36 Vt. 430. Prentiss v. Bliss, 
4 Vt. 513. 

3. Intoxicating liquor is subject to attach- 
ment, and may be sold on execution for a law- 
ful purpose. NuU V. Wheeltr, 30 Vt. 436. 

2. What is not attachable. 

4. (HneraUy— periBhable property. The 

law impliedly forbids the attachment of properly 



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which is peculiarly perishable in its nature, 
whenever it is manifest that the purposes of the 
attachment cannot be effected before it will 
decay and become worthless— as, fresh meat 
during a portion of the year, fresh fish, green 
fruits and the Uke. Rajfue, J., in WaUews v. 
Barker, % Yt. 443 ; but luld, that fresh beef in 
December was subject to be taken on execu- 
tion. Leamtt v. HoWrook, 6 Vt. 405. 

5. Where a log coal pit about half burned 
and incapable of being removed, requiring care 
and skill to save the property and render it of 
any value, was attached by an officer who suf- 
fered it to remain in the debtor's hands, and he 
disposed of the coal made 'y—Held^ that the 
officer could not claim the coal by his attach- 
ment. Wilds V. Blanehard, 7 Vt. 138. 

6. Where part of a charcoal pit was burned 
and the work completed, and the residue had 
80 far progressed as to have been entirely 
burned to coal, though some labor and skill 
were still necessary in order to separate and 
preserve it properly -y—Held (consistent with 
wads V. Blanehard), that if the sheriff saw fit 
to attach and take possession of the coal and 
run the risk of being able to keep it safely, he 
had a right to do so. HcUe v. HunUey, 21 V t. 
147. 

7. Money collected. Money collected by 
an officer on an execution cannot be attached 
while in his hands, as the property of the credi- 
tor in the execution. The officer stands as 
debtor to such creditor, not for the identical 
pieces of money, but for the sum. Conant v. 
BiekiuU, N. Chip. 66. 1 D. Chip. 50. Prentiss 
V. ^toij, 4Vt. 513. 

8. Where an officer had attached personal 
property and sold it on the attachment, and 
such attachment had been dissolved ;—^«M, 
that the proceeds of such sale could not be 
taken upon an another writ returning as at- 
tached **the amount of the money made" 
upon such sale, which then stood to the general 
credit of such officer in bank; but that the 
officer stood as debtor of the defendant for such 
proceeds, and the same could be attached only 
by trustee process. Adams v. Lane, 38 Vt. 
640. 

9. SembUy it might be oljherwise, if the first 
attachment had not been dissolved so that the 
money had remained in the official possession 
and custody of the officer, and potentially under 
bis control. Jb. 

10« Property leased. Property held by a 
tenant under a subsisting lease cannot be spe- 
cifically attached as the property of the lessor ; 
and a sale of it on execution will convey no 
title to the purchaser, although sold with a re- 
servation of the right of the lessee to retain 
poneasion during his term. Smith v. IfiUs, 
80 Vt. 815. 26 Vt. 286. 36 Vt. 483. 

11, Personal property in possession of a 



lessee cannot be attached as the property of the 
lessor, except in the manner provided by the 
statute (G. S. c 33, ss. 31, 32). It cannot be 
taken from the lessee's possesion. Brigham v. 
Avery, 48 Vt. 602. 

12. Trust property. Trust property is 
not subject to be taken on attachment, or exe- 
cution, for the debt of the trustee ; and this 
rule applies to property in the hands of an exe- 
cutor, both real and personal, whether coming 
directly from the testator, or from the collec- 
tion of debts, or other assets of the estate. 
WilUams v. Fullerton, 20 Vt. 346. 88 Vt. 
639. 

13. Statutory exemptions. Oonstroc- 
tion. It is established by the whole current of 
decisions in this State on the subject, that the 
statutes exempting certain property from at- 
tachment are remedial in their character, and 
ought to receive a liberal construction in favor 
of the debtor. Feck, J., in MundeU v. Ham- 
mond, 40 Vt. 644. The exemption is charit- 
able and in the cause of humanity, and ought 
to receive a liberal practical construction. Cot- 
lamer, J., in Dow V. Smith, 7 Vt. 470. Has- 
kins V. Burnett, 41 Vt. 702. Webster v. Ome, 
45 Vt. 40. 

14. Instances. Thus, a cooldng stove is 
exempt from attachment, as an article of house- 
hold furniture ** necessary for upholding life." 
Crocker v. Spencer, 2 D. Chip. 68. HaH v. 
Hyde, 5 Vt. 828. 

15. So is a brass time piece, or clock — 
the word ** necessary" extending to things of 
convenience and comfort which are suitable to 
the situation. LeaidU v. Metea^f, 2 Vt. 342. 

16. So, one cow being exempt, the butter 
made from the cow is exempt. lb, 

17. And the only cow is exempt, though 
the debtor reside in Canada, the cow having 
strayed into this State and been here attached. 
HaskiU V. Andros, 4 Vt. 609. 

18. A two-year-old heifer, forward with 
calf, the owner having no other cow, is a cow 
within the intent and scope of the statute. Doto 
V. Smith, 7 Vt. 465. So, though the heifer be 
not with calf. Freeman v. Carpenter, 10 Vt 
488. 

19. Under the statute exempting ' ' one yoke 
of oxen or steers, as the debtor may select ;" — 
Held, that a pair of steer calves, less than a 
year old, were exempt. MundeU v. Hammond, 
40 Vt. 641. 

20. The statute exempting from attachment 
two horses [or one horse], '* kept and used for 
team work," does not require that they be kept 
and used exclusively for team work. Webst^ 
V. Ome, 45 Vt. 40. 

21. Articles appropriate for use as household 
furniture cannot be legally presumed to be 
household furniture, and so exempt from at- 
tachment, from the mere fact that the owner 



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had boxed them up and was about to move 
away. The fact that they were so used, or in- 
tended to be used, is matter of afl9rmative 
proof. Bourne v. Merritt, 22 Vt. 429. 

22. A person who had been a hotel keeper 
owned, and had used in the hotel, 5 carpets, 5 
dozen knives, 5 dozen forks, 7 large fluid lamps, 
20 small fluid lamps, 2 fluid cans, 5 pails, 12 
tumblers, 18 goblets, and certain other articles 
of household furniture, the whole valued at 
$100 and being all the property that he owned. 
Although he was the head of a family, these 
articles were not in actual use by him for house- 
keeping, but they Were used by his permission 
by his successor in the hotel where he boarded, 
and he was negotiating for the sale of them. 
Held^ that they could not be held by trustee 
process, being exempt from attachment. Clark 
V. Af>eHll, 31 Vt. 612. 

23. A piano forte, though in use in the fam 
ily, is not exempt from attachment and execu- 
tion as an ** article of household furniture neces- 
sary for upholding life." Dunlap v. Edgerton, 
80 Vt. 224. 

24. A horse and saddle, belonging to a 
member of a cavalry company, were held not 
exempt from attachment under the statute ex 
empting the *' uniform, arms, ammunition and 
accoutrements" of a militiaman. Fry v. Can- 
field, 4 Vt. 9. 

25. The exemption from attachment and 
execution of such military arms and accoutre- 
ments as the debtor "is required by law to fur- 
nish," is of a temporary character, and continues 
only so long as the debtor remains under this 
obligation, (hoen v. Gh-ay, 19 Vt. 648. 

26. Such farming tools as are used by hand 
and are convenient or useful, and are procured 
by one for his personal use, unless extravagant, 
and such mechanical tools of like character and 
use which are indispensable for the repairing of 
farming implements, are such ** suitable" tools 
** necessary for upholding life" as are by stat- 
ute exempt from attachment and execution. 
GarreU v. Patchin, 29 Vt. 248. 

27. A shovel, spade, dungfork, three pitch- 
forks, a sc3rthe and snath, a potato hook, hog 
hook, common axe, broad axe, adz, hatchet and 
five augers, all worth $10.80, and belonging to 
one whose principal occupation or trade was 
shoemaking, but who carried, on farming to 
some extent, and lived rather isolated and did 
his own mending or ^Hinkering" of sleds, ox- 
yokes, &c., were field to be so exempt. lb. 

28. The word tools, as used in the statute 
of exemptions from attachment, is construed 
as applying to simple instruments, ordinarily 
used in manual labor, and not as embracing 
machinery, or an article usually denominated a 
machine. Kilbum v. BemnUng, 2 Vt. 404. 
Spooner v. Fletcher, 8 Vt. 187. Henry v. 8hsl- 
don, 35 Vt. 427. 



29. Moulds used in the manufacture of 
paper, also a portable machine called a billy 
and jenny used for spinning and manufactur- 
ing cloth, capable of being worked by hand, or 
by water power, costing about ^100;— Held, 
not to be tools, Kilburn v. Demnuiig, 2 Vt. 
404. 

30. Same, as to a printing press and types. 
Spooner v. Fletcher, 3 Vt. 133. 

31. Same, as to a machine for shaving and 
splitting leather, operated by hand, steam, or 
water power, costing $250 and weighing six to 
nine hundred pounds. Henry v. Sheldon, 35 
Vt. 427. 

32. A wooden boot, hung up at the door of 
a boot and shoemaker's shop as a sign of the 
owner's trade, is not exempt from attachment 
for his debts. Wallace v. Barker, 8 Vt. 440. 

33. A barber's chair and foot-rest, used by 
a barber in his business, are exempt from at- 
tachment, as being '* such suitable t<wfa" * * 
as are ** necessary for upholding life." Allen 
V. Thompson, 45 Vt. 472. 

34. Where property exempt from attach- 
ment has been voluntarily sold by the debtor, 
the debt due therefor or the proceeds of such 
sale are subject to trustee process and attach- 
ment. Edson V. Trask, 22 Vt. 18. ScoU v. 
Brfgham, 27 Vt. 561. Keyes v. Bines, 37 Vt. 
263. (Altered by Stat. 1865, No. 14.) 

35. But where property not subject to at- 
tachment is converted into a mere right of ac- 
tion by a proceeding wholly in inmtum, such 
right of action and the money collected are also 
exempt from attachment, the same as the prop- 
erty itself. Stehbins v. Peeler, 29 Vt. 289. 
Keyes v. Bines, 37 Vt. 260. 

I. Where the plaintiff sued for the taking 
of his only cow upon an attachment ; — Heid, 
that this was none the less his only cow, and so 
exempt from attachment, because he had be- 
fore disposed of all his other cows by a sale 
which was fraudulent as to his creditors, pro- 
viding such sale was not merely colorable but 
operated as an actual transfer of the property. 
The creditors might attach the other cows, in 
case of such fraudulent sale. Sanborn v. Hamr- 
ilton, 18 Vt. 690. Dote v. Smith, 7 Vt. 465. 

37. The plaintiff owned two cows, one of 
which the defendant attached. The plaintiff 
claimed that the cow^ attached was his only 
cow, claiming and supposing that the other be- 
longed to his deceased wife's estate. In tres- 
pass for the cow attached, it appeared on trial 
that the other belonged also to the plaintiff. 
Held, that if the plaintiff had, at the time of 
the attachment, an election which cow he would 
retain as the **one cow" exenipt from attach- 
ment under the statute, he had waived the right 
to elect, and could not recover. Sumner v. 
BroiPn, 34 Vt. 194. 

38. Debtor's selection. Under G. S. c. 



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47, 8. 18, exempting from attachment **one 
yoke of oxen or steers, as the debtor may 
select," where either one or both yoke are at- 
tached in his absence, he may make his selec- 
tion upon his return. Haskins v. Bennett, 41 
Vt. 698. 

39. The plaintiff sold and delivered to L a 
yoke of oxen upon credit, the oxen to remain 
the plaintiff's property imtil paid for. He also 
owned and had in his possession another yoke. 
Under the statute exempting from attachment 
**oneyokeof oxen";— -ffifW, that it was the 
latter yoke that was exempt, notwithstanding 
the plaintiff's interest, as conditional vendor, 
in the other yoke, and although L had paid 
nothing towards the purchase. Wilkinson v. 
Wait, 44 Vt. 508. 

40. Where the defendant levied on the 
plaintifTs three horses, the plaintiff claimed 
that he owned one (the *'Bemis" horse), and 
that the title to the other two was in A, and 
whether he had any interest in them or not 
could not be ascertained until he and A had 
settled ; but the Bemis horse he claimed as his 
team and as exempt from execution, and de- 
clined to make any selection as between the 
three horses for the reason above stated. On 
the day of sale, the plaintiff forbade the sale of 
the Bemis horse, claiming it as his team. It 
tamed out on the trial that the plaintiff did 
own the three horses; but it did not appear but 
that he told the truth as to his interest in the 
two depending on his settlement with A, nor 
that there was any attempt at concealment, or 
to mislead Uie defendant. Held, that this was 
a sufficient ** selection" of tlie Bemis horse to 
exempt it from the levy. PUmpt&n v. Sprague, 
47 Vt. 467. 

41. Team. Under the exemption of horses 
used for team work, neither a wagon nor har- 
ness, though used and needed with the team, is 
exempt. CaHy v. Ih-ew, 46 Vt. 346. 

3. Hegumtes and vab'diip of aUachment. 

42. Taking possession. To constitute a 
legal attachment of personal property, the offi- 
cer must have the custody or control of it, 
either by himself or his servants, in such way 
as either to exclude all others from taking the 
custody of the property, or, at least, to give 
timely and unequivocal notice of his own cus- 
tody. l4fon V. Hood, 12 Vt. 288. BurroughM 
v. Wriffht, 16 Vt. 619. S. C. 19 Vt. 610. 
Adams v. Jjone, 38 Vt. 646. See Newton v. 
Adams. 4 Vt. 446. Fitch v. Mogers, 7 Vt. 403. 
18 Vt. 467. 

43. The plaintiff, an officer, in the course of 
service of a writ of attachment, went within 
five or ten rods and in full view of a wagon of 
the debtor then in the road or field, when the 
creditor's attorney directed him to attach the 



wagon and the plaintiff declared it attached, 
but did nothing more, and went in pursuit of 
other property about the premises, and in an 
hour or so returned and found the defendant in 
possession of the wagon, who had in the mean 
time purchased it of the debtor on a bona fide 
debt, not knowing of the doings of the plaintiff. 
Held, that here was no such attachment as en- 
titled the plaintiff to hold the wagon against 
the defendant. Fitch v. Rogers, 7 Vt. 403. 

44. Property of a debtor was in the pos- 
session of a third person who held it as a secur- 
ity for a debt due him, and notice was given 
him by an officer having a writ in his hands 
against the debtor for service that he attached 
the same, and he returned it as attached upon 
the writ, but took no possession. Held, that 
this was not such an attachment as entitled the 
officer to maintain an action for a subsequent 
attachment and removal of the property. Blake 
V. Hatch, 25 Vt. 565. 

45. Where an officer attached goods in a 
building, locked up the building and took the 
key, this was held a sufficient taking of posses- 
sion as against later attachments ; and any fur- 
ther securing of the building against entry by 
the attorney of the creditor was treated as done 
for the officer. Newt/m v. Adams, 4 Vt. 437. 

46. An officer, who had the exclusive posses- 
sion of a room, had permitted W to store cer- 
tain property therein. He afterwards attached 
that property without removing it. but locked 
all the outer doors of the room so as to cut off all 
public access to it, leaving unfastened an inner 
door which led into a room occupied by another 
party. The officer marked the property as 
"attached," and gave notice of his attachment. 
Held, that the attachment was valid as against 
a subsequent attachment against W. Slate v. 
Barker, 26 Vt. 647. 

47. Joint property. Upon an attachment 
or execution, the officer may seize and retain 
an entire chattel or the whole property which 
the debtor owns in common, or as joint tenant 
or partner, with others. There is no other 
mode in which the attachment can be made; 
but the officer can sell only the debtor's interest 
therem. Reed v. Shepardson, 2 Vt. 120. Whit- 
ney v. iMdd, 10 Vt. 165. 26 Vt. 428. 

48. Attachment of body and property. 
A writ, issued §s an attachment of the estate, 
or body of the defendant, with trustee process, 
was served by summoning the trustee and at- 
taching the body of the defendant. Held to 
be an illegal and unauthorized writ and service, 
both in the plaintiff and officer, and the writ 
was quashed. A man may be attached by his 
body or property, but not by both on the same 
process. Cleft v. Hosford, 12 Vt. 296. 

49. Mode of service and return. Where 
an officer takes possession of personal property 
attached by valid process, the attachment is 



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valid, notwithstanding the process, or the ser- 
vice, may be so informal as to be abatable. 
NmUm V. AdatM, 4 Vt. 487. 22 Vt. 881. 
Judd V. Langdon, 6 Vt. 281. 

60. Where property is attached from time 
to time upon a writ, one copy with full return 
of service is sufficient. XJ. 8. Bcmk v. Taylor^ 
7 Vt. 116. 

51. The return of the officer upon a writ of 
attachment, where personal property was at- 
tached, concluded— ** and delivered him a copy 
of this attachment and a list of the articles 
so attached by me," — in the precise words of 
the statute. Held, on plea in abatement, to 
be suflcient. Strickland v. Baldmn, 28 Vt. 
484. 

52. Description of property. All .that is 
necessary in the way of description of property 
attached by copy, in order to create a valid lien, 
is, that the officer's return should have so 
much precision as may be necessary to identify 
the property attached. Fullam v. SUama, 80 
Vt. 448. 

53. Reasonable certainty in the description 
of property attached is all that can be required 
in an officer's return, and its sufficiency, in 
this respect, can only be determined by apply- 
ing it to the actual state of the debtor's prop 
erty at the time, as shown by extrinsic evi- 
dence. Btieklin V. Crampton, 20 Vt. 261. 
FUUher v. Cole, 26 Vt. 170. Jewett v. Quyer, 
88 Vt. 209. 

54. Where property attached was described 
in the officer's return as ** thirty tons of hay on 
the premises -''—Held, that it would be intended 
as premises in the oecfupatimi of the debtor ; and 
that such return was sufficient in an action of 
trover by the officer against a purchaser from 
the debtor, there being no evidence of other 
hay of the debtor to which the description 
could apply. BuckUn v. Crampton. 

55. Where an officer attaches an article but 
misdescribes it in his return, and the appear- 
ance and use of the article are such that it may 
have been naturally and in good faith so mis- 
described, such error should not avoid the at- 
tachment ; and a plea stating such facts was 
held to be a justification. Briggs v. Mown, 81 
Vt. 483. 

56. Betom of writ. In trespass de bonis, 
the defendant justified the ta-espass under a 
writ of attachment served by him as an officer, 
and averred that this suit was brought before 
the return day of that. Held, on general de- 
murrer, that the plea was good without aver- 
ring his retiurn of that writ. Brigg% v. McuMn, 
— citing Andrews v. Chase, 6 Vt. 409. 

57. niegal claim. Where the same 
property or debt is attached by different credi 
tors, and the whole or part of the consideration 
of a single demand of the first attaching credi- 
tor is illegal, his attachment is wholly void as 



against the subsequent attachment. Harding 
V. Harding, 26 Vt. 487. 

58. Frandnlent. Where an attaching credi- 
tor agreed with the debtor and other attaching 
creditors not to enter his suit in court, and took 
his writ from the officer without completion of 
service by copy to the debtor, but afterwards 
caused the writ, with such imperfect service, to 
be entered in court and took judgment by de- 
fault and issued execution ; — Held, that the 
proceedings were so far irregular and fraudu- 
lent, that he acquired no lien upon the property 
attached which he could enforce against other 
creditors. Bank of Middlebury v. EdgerUm, 
80 Vt. 182. 

59. Property left with debtor. Where 
an officer attaches a chattel and leaves it in the 
custody of the debtor, he so far loses his lien 
that a second attachment, or purchase of the 
property, bona fide, and not as subject to the 
attachment, will always prevail against him. 
Pmnroy v. Kingsley, 1 Tyl. 294. It has ever 
since been so held. Sriggs v. Mason, 31 Vt. 
488. 

60. The defendant, a deputy sheriff,. formal- 
ly attached property in the possession of the 
legal owner, as the property of another, but 
left it with the owner, who insisted on his right 
but agreed not to dispose of the property nor 
put it out of the way. While in this situation, 
the plaintiff, another deputy sheriff, attached 
the same property as that of the same debtor, 
and removed it, and while in the plaintiff's pos- 
session the defendant seized it and sold it on 
the execution following his attachment. Held, 
in trespass, that the plaintiff was entitled to re- 
cover the value of the property. Fisher v. 
Cobb, 6 Vt. 622. Bogee, J., dissenting. 

61. Several attachmentB by different 
officers. Where personal property has been at- 
tached by one officer and is in his legal posses- 
sion and custody, it cannot be afterwards at- 
tached by another so as to create a U^n upon it, 
but to this end the second writ must be served 
by the first officer having possession. Bur- 
roughs V. Wright, 16 Vt. 619. Nor will an 
agreement between the two officers for the cre- 
ation of such lien, without an actual taking, 
make it an attachment. 8. C, 19 Vt. 510. See 
Adams v. Lane, 88 Vt. 646. 

62. Where personal property has been at- 
tached by an officer, either by taking it into his 
actual possession, or by leaving a copy in the 
town clerk's office, no subsequent legal or valid 
attachment can be made of the same prc^rty, 
except by the same officer, while the first at- 
tachment remains in force; and this rule ap- 
plies the same betw^n the sheriff and his depu- 
ties as between othe^ officers. West River Bank 
V. Oorham, 88 Vt. 649 ; and see Rogers v. 
Fairfield, 86 Vt. 641. 

63. Copy in town clerk's office. Where per- 



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soDal property has been attached by one officer by 
copy left in the town clerk's office, a second of- 
ficer would be a trespasser by attaching and 
taking possession of all such property except 
sufficient to pay the first debt ; and would QOt 
be bound to do so, without express directions 
and indemnity from the plaintiff in the writ. 
WeH River Bank v. Garham. 

64. An attempt to attach personal property 
by leaving a copy of the writ in the town clerk's 
office, where the return thereon describes the 
property as being all of its kind *in the town," 
and nothing more, is wholly inoperative as an 
attachment, and creates no lien. Paul v. 
Burton, 82 Vt. 148. Bogers v. Fairfield, 86 
Vt 641. West Bmer Bank v. Gorham. 

65. But where, in such case, the officer takes 
actual possession of the property, the taking, 
notwithstanding such return, constitutes a valid 
attachment. Paul v. Burton, Fletcher v. (7ofc, 
26 Vt. 170. 

66. In attaching property by copy left in 
the town clerk's office, it is not necessary that 
the officer should see the property or go near it 
(FuOam v. Steams, 80 Vt. 448);— nor is it es- 
sential to the attachment that a copy should be 
delivered to the defendant at the time. It is 
enough that a copy be delivered to him at any 
time before the time for legal service of the 
writ has expired. Putnam v. Clark, 17 Vt. 
82. 

67. The leaving of the copy in the town 
clerk's office, in such case, is the act of attach- 
ing and taking possession and giving notice to 
all concerned, and the officer's possession is 
from that time legal against all others. lb. 

68. Property sold conditionally. Where 
property, held by a conditional purchase, 
is attached under Stat. 1854, No. 12, the attach, 
ing creditor will be liable in trespass to the 
conditional vendor, unless he shall have paid or 
tendered to the vendor a definite sum, being 
the amount due upon the vendor's claim, within 
ten days after the attachmtnt, and shall have 
brought the money into court. Hefflin v. Bell, 
30 Vt. 134. (Changed by G. 8. c. 88, s. !^.) 

69. In order to hold, under an attachment 
or execution, a chattel sold conditionally, as 
against the vendor, the piu'chase money being 
unpaid, the tender of the unpaid purchase mon- 
ey must be made by the attaching creditor 
"within ten days after notice of the amount 
thereof remaining unpaid," although by the 
terms of the conditional sale the price has not 
yet fallen due, and although the sum due is in 
dispute. Fates v. RoberU, 88 Vt. 508. (G. 8. 
c 33, 8. 28.) 

70. The plaintiffs sold and delivered to M a 
wagon for f 120, to remain the plaintiffs' proper. 
ty until paid for. The defendant, as constable, 
attached the wagon as M's property on a writ 
in favor of P. The wagon was stolen from the 



defendant, without his fault, within three days 
after the attachment, and was never after found. 
At the time of the attachment, $60 of the pur- 
chase price remained unpaid. Soon after the 
attachment, the plaintiffs gave the defendant 
and P notice of their claim and forbade the de- 
fendant taking the wagon. No tender or offer 
of the amount unpaid was within ten days after 
notice, or ever, made to the plaintiffs, as requir- 
ed by G. 8. c. 88, s. 28. Judgment was render- 
ed again M, and execution was issued and de- 
livered in time to charge the property. The 
value of the wagon at the time of the attach- 
ment was $95. Held, by a majority, that the 
defendant was liable in trover for the full value 
of the wagon ; that by his default for ten days 
in making the tender, he had lost the right to 
stand in the place of M as to payment, and 
stood as a mere stranger as to the plaintiffs. 
Duncans v. Stone, 45 Vt. 118. 

71. Property held in common. 
See Tenancy in Common. 

4. Rights and liabilities of attaching officer, 

72. —in making service. An officer who 
receives an attachment for service is not there- 
by constituted the agent of the creditor for 
receiving payment of the demand. If paid to 
him, he holds the money as agent of the debt- 
or, till paid over to the creditor. Wainttright 
V. Webster, 11 Vt. 576. 

73. Where boxes were left at a railroad 
depot for transportation, containing attachable 
articles, and some exempt from attachment ; — 
Held, that the attaching officer had the right to 
take possession of the boxes, and open them, 
and take the attachable articles ; but that he 
was not authorized to remove the boxes from 
the depot without showing a necessity therefor; 
and, if he did so, he was liable in trespass for 
the excess. Peeler v. Stebbins, 26 Vt. 644 

74. An officer having legal process against 
the goods of one may enter the store of another 
where the goods are, for the purpose of execut- 
ing the process. He may even break open the 
door, if refused admittance on request, and 
may remain there long enough and do whatever 
is necessary, to. take, secure and remove the 
goods ; but he cannot take entire possession of 
the store and expel the owner therefrom. For 
so doing, or for remaining longer than neces- 
sary, he would be liable as a trespasser. Ful- 
lerton v. Mack, 2 Aik. 415. 

75. A sheriff, or other proper officer, may, 
either by night or day,^ break open the outer 
door of a store or warehouse for the purpose of 
taking upon legal process the goods of any per- 
son therein, after refusal of admittance upon 
proper demand— as of the person having the 
custody and care of the key. Burton v. Wilkin- 
son, 18 Vt. 186.— using so much force as is 



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necessary, and no more. Fullam v. Steams^ 
80 Vt. 448. 

76. — according to the precept. Where 
an officer receives for service a writ of attach- 
ment, without special instructions as to service, 
he is bound to serve it according to its precept, 
by attaching the property of the debtor to the 
amount and value specified, if such can be 
found in the exercise of reasonable diligence, 
and it is not of doubtful ownership. Hilly. 
PraU, 29 Vt. 119. 

77. An agreement with an officer to serve a 
writ for less than his legal fees, was h^ld not 
to vary his duty to serve the writ according to 
its precept. lb. 

78. In order to sustain an action against an 
officer for neglecting to attach property upon a 
writ, according to the precept of it ; — Held, that 
it is not necessary that the plaintiff should have 
taken out his execution and placed it in an 
officer's hands within 80 days after judgment. 
lb. 

79. Directions of creditor. A sheriff is 
not liable for refusing to attach property which 
is pointed out to him by the creditor and 
directed to be attached, if in fact it belongs to 
some person other than the debtor, although the 
creditor may tender the officer a sufficient bond 
of indemnity. Hutchinson v. Lull, 17 Vt. 133. 
24 Vt. 260. Deming v. Zwtt, 17 Vt. 398. 

80. Where a party gave an officer a writ to 
serve and directed him to attach certain hem- 
lock bark; — Held, that it was not the legal duty 
of the officer, without instructions, to examine 
the town records to ascertain whether the bark 
had not already been attached, and, if so, to 
place the writ in the hands of the first attach- 
ing officer. West River Bank v. Gorham, 
Vt. 649. 

81. Where a sheriff had attached certain 
hemlock bark by copy left in the town clerk'F 
office, and was afterwards informed by hit 
deputy that he had attached the same property ; 
— Held, that the sheriff was not under legal 
obligation to inform his deputy that the bark 
had previously been attached by himself, and, 
without any directions from the creditor, tf 
take the writ from the deputy and himself 
serve it by attaching the bark. lb. 

82. A direction to an officer by the creditor, 
to attach particular property and not to attacl: 
other property, does not operate to release the 
officer from his liability for the safe keeping oi 
such as he did attach. Au$Un v. Burlington, 
84 Vt. 506. Howes v. 8pic4fr, 28 Vt. 508.- 

83. Property exempt. Trespass lies 
against an officer for the taking upon attach 
ment, or execution, property which by law if 
exempt from such process. Dow v. Smith, 7 
Vt. 466 ; — or trover. Sanborn v. Hamilton, 
18 Vt. 590. 

84. Excessive attachment. In order to 



sustain an action for making an excessive at* 
tachment, the plaintiff must allege and prove 
much the same that he would in a suit for a 
malicious action, —that is, want of probable 
cause and malice express. Abbott v. Kimball, 
19 Vt. 551. 

85. Taking receipt. Where an officer took 
a receipt for attachable personal property in 
the possession of a debtor; — Held, that this was 
a sufficient attachment to oblige him to make 
return thereof upon the process, and for neglect 
to do so he was held liable to the creditor. 
Howes V. Spic^, 28 Vt. 508. 

86. Special property of officer. The 
general property in chattels attached remains 
in the defendant ; but the attaeliing officer ac- 
quires a special property therein, defeasible by 
the plaintiff*s failing in his action, or f)y not 
duly charging the same in execution. Johnson 
V. Edson, 2 Aik. 299. Mvssey v. Perkins, 36 
Vt. 690-1. 

87. An officer can maintain an action for 
property attached by him, only upon the ground 
and in case of his liability for it, either to the 
attaching creditor or the owner. Where the 
debtor in the attachment consumed the pro- 
perty before the judgment against him, but the 
creditor failed to charge the property in execu- 
tion ,—Held, that the attachment was thereby 
dissolved, and that the attaching officer could 
not maintain an action against the debtor for 
the property. Collins v. Smith, 16 Vt. 9 ; and 
see Weeks v. Martin, 16 Vt. 287. 

88. In an action by an attaching officer 
against the general owner of chattels for taking 
them from the possession of the officer, he can 
recover only to the extent of his lien, though 
less than the value of the property. Houston 
V. Howard, 89 Vt. 54. 

89. Tlie plaintiff, as an officer, attached 
certain property. The defendant, as an officer, 
on another writ against the same debtor, after- 
wards attached and removed the same property. 
Judgment was first obtained in the second suit, 
and the defendant sold the property on execu- 
tion on that judgment. The plaintiff brought 
trespass, and, pending his suit, judgment was 
recovered in the first attachment, but no execu- 
lion issued thereon. Held, that the plaintiff 
could recover nominal damages only with tax- 
able costs ; for that he was not liable to the 
debtor, the property having gone to his benefit; 
nor to the first attaching creditor, as he had not 
charged the property in execution. Goodrich 
V. Church, 20 Vt. 187. 

90. If one of two joint owners of personal 
property forcibly take it from the possession of 
the officer who has taken it on legal process 
against the other joint owner, the officer may 
maintain trespass therefor. Whitney v. Ladd^ 
10 Vt. 165. {Phelps, J., dissenting.) 12 Vt. 
686. 26Vt. 428. 



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91. Copy in town clerk's office. Tlie 
attachment of hay, &c., by copy left in the 
town clerk's office, according to the statute, 
gives to the officer a sufficient possession to 
enable him to support trespass or trover for any 
wrongful taking or conversion of the property. 
Lowrjf V. Walker, 4 Vt. 76. 8, C. 6 Vt. 181. 
Stanton v. Hodges, 6 Vt. 64. Putnam y. Clark, 
17 Vt. 82 ;— and such action can as well be 
sustained against the defendant in the attach- 
ment as against a stranger. Bhdgett v. Adams, 
24 Vt. 23. 

92. Trespass, trover, or replevin will lie 
against an officer attaching personal property 
by copy in the town clerk's office, when 
brought by some person, other than the debtor, 
having title. AngeU v. Keith, 24 Vt. 371. 

93. Care of i»roperty attached. An at- 
tachment of hay, &c., by leaving a copy in the 
town clerk's office, gives the officer a special 
property in the hay, <&c., attached, and the 
legal custody and possession of it ; .and the de- 
gree of care required of him, as to its custody, 
is the same as if he had taken it into his per- 
sonal possession. If the property is not f orth- 
ccaning to answer upon the execution, he is 
bound to show that it is out of his power to 
restore it, and that this has happened without 
any fault on his part. Fay v. Munson, 40 Vt. 
468. SmithT. Church, 27 Vt. 168. MeOrmsby 
v.Jr<»TM, 29 Vt. 417. 

94. Where an officer attaches grain in the 
straw, it is his duty to thresh it, when that is 
necessary to preserve it. Brigge v. Taylor, 35 
Vt.57. 

95. An officer attaching property is liable 
only for the same degree of care in the keeping 
of it, as other bailees for pay. Bridges v. Perry, 
14 Vt. 262. Smith v. Church, 27 Vt. 168. 
WaUcer v. WUmarth, 37 Vt. 294. 

96. Prima faeie, he is liable to produce the 
property on execution, but may excuse him- 
self by showing that it is not in his power, and 
that he has been guilty of no fault. Bridges v. 
Perry. MeOrmsby v. Mi/rris, 29 Vt. 417. Fay 
v. Munmm, 40 Vt. 468. 

97. Neither the attaching officer, nor the 
receiptor, is liable for the property attached 
where it has been injured, or has perished, or 
been destroyed, without his fault. Ide v. Fas^ 
eeU, 45 Vt. 68. Bridges v. Perry. Walker v. 
irttoi«rtA,37Vt.289. 

98. In an action an the ease against an of- 
ficer for a neglect to return property attached 
after the termination of the suit on which it 
was attached, where it was lawfully attached 
and holden down to the time of a sale upon the 
attachment, and at tliat time it had deteriorated 
in value by being injured without his fault ; — 
Held, that he was liable in such action only for 
the value of the property at the time of the 
sale, although such sale, for want of conformity 



to the statute, was illegal Walker v. M^U- 
manrtfi. 

99. If a constable, or a town, be sued for 
neglect of such constable in not keeping the 
property attached by hjm so as to be taken 
on the execution, he is not entitled to have de- 
ducted from the claim what he expended in 
prosecuting to effect his suit against another 
officer for taking the property from him, unless 
so taken by irresistible force. It was his priv- 
ilege and duty to resist, even with force. Saw- 
yer v. Hiddletown, 10 Vt. 237. 

101. Directions of creditors. Instructions 
were given by an attaching creditor to the of- 
ficer in writing, which the court construed to 
be equivalent to the following, viz:— "You 
need not attach real estate, and for the personal 
property you attach you may take receiptors, 
and before you remove it you may go to the 
debtor and see if he will furnish receiptors." 
The officer attached personal property and, 
without removing it, took receiptors. In an 
action by the creditor for not safely keeping 
the attached property, the receiptors having 
failed ; — Heid, that the officer was not by such 
directions released from any official responsi- 
bility, and was liable for the loss. Austin v. 
Burlington, 84 Vt. 506. See Strong v. Brad' 
ley, 14 Vt. 55. Hotces v. Spicer, 23 Vt. 608. 
Mason v. Ide, 30 Vt. 697. 

102. CJiarges of keeping, ftc. Where an 
officer attached a horse, and used it without in- 
jury to it, sufficiently to pay for the keeping, 
and the horse died pending the suit; — Held, 
that the officer could not recover of the attach- 
ing creditor for the keeping of the horse, since 
it was already paid for by the debtor in tlie use 
of the horse. Bean v. BaiU^, 12 Vt. 142. 

103. Where property is attached and the 
defendant recovers in the suit, he is entitled to 
have his property back without paying any 
costs or charges for keeping. The attaching 
officer must look for his charges to the person 
who employed him. Aldis, J., in McNeil v. 
Bean, 32 Vt. 481. Johnson v. Fdson, 2 Aik. 
299. 

104. Bo too if the suit is settled before judg- 
ment, and the attachment is dissolved. Felker 
V. Emerson, 17 Vt. 101. 

105. But if the defisbdant settle the suit 
[after judgment] so tliat no execution comes 
into the officer's hands, he may recover such 
charges of the defendant. Jaekeon v. Seribner, 
12 Vt. 145. 16 Vt. 665. (See 17 Vt. 102.) 

106. Where an officer attaches and makes 
an official sale of the property, he may retain 
from the proceeds the expenses of keeping the 
property, although the debtor has discharged 
the attachment lien by paying the debt Olect- 
son V. Briggs, 28 Vt. 135. 

107. The charges of an officer for keephig 
attached property during the pendency of the 



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acticm'are a lien upon the property, and where 
the property is sold upon execution, the avails 
must, in the first instance, after paying the 
costs of levy and sale, be applied in payment 
of such charges, and the balance be applied on 
the execution ; and it is not necessary that such 
charges should be taxed and included in the 
judgment. MeNeU v. Bean, 82 Vt. 429. 

108. Action against officer for not keep- 
ing property attached. In an action against 
an officer for not having the property attached 
by him forthcoming to be taken in execution ; 
— Heldy that he could show in defense an offer 
of other property to be levied upon, sufficient 
to satisfy the judgment. Hoit v. Bmron, Brayt. 
117. 

109. Where a sheriff's deputy attached 
property and his receiptor converted it ; — Held, 
that the defendant in that action, after judg- 
ment in his favor, could maintain trover against 
the sheriff without demand. Johnmm v. Edaon, 
2 Aik. 299. 

110. Several creditors of the same debtor 
attached the same property in succession, and 
all, except the last, agreed with each other 
(the debtor assenting) upon an immediate sale 
of the property by one of their number, and an 
application of the proceeds to the satisfaction 
of all the clauns in the order of the attachments. 
The sale was so made, was fairly conducted, 
and was for a sum probably greater than would 
have been obtained by sale on execution. Judg- 
ments were obtained in each case and execu- 
tions issued seasonably to charge the property 
attached, and the officer applied the whole pro- 
ceeds of the sale in part satisfaction of the exe- 
cution of the first attaching creditor. In an 
action by the last attaching creditor against the 
officer for neglect to keep the property at 
tached ; — Held, that he could not recover, the 
property having been exhausted in satisfying 
the prior lien. Munger v. Fletcher, 2 Vt. 524. 
24Vt. 286. 82Vt. 767. 

111. An officer attached the same property 
cm two writs in favor of the same plaintiff 
against the same defendant, at the same time. 
In an action against the officer for not keeping 
the property to respond upon one of the execu- 
tions ; — Beld, that the damages were the value 
of the property, less the sum which he had been 
obliged to pay the plaintiff for a like default aa 
to the other writ and execution, although the 
return upon neither of the writs stated that the 
same property was attached on the other. 
Sauthwick V. Weeks, 8 Vt. 49. ffutchinson, J., 
dissenting. 

112. Evidence. In an action against a 
town for the failure of its constable to make a 
valid attachment, whereby the same property 
was held upon a later valid attachment by other 
parties; — Held, that it could not be shown in 
defense, that judgment was confessed in the 



first case after the attempted attachment, with- 
out the assent of the subsequent attaching cred- 
itor ; nor that the judgment confessed was for 
more than the sum due, and so taken with in- 
tent to defraud creditors— it cannot be im- 
peached in this collateral manner. Rogers v. 
Fairfield, 36 Vt. 641. 

113. The fact that an execution was oom- 
mitted to a particular officer is no evidence that 
he made the original attachment. AngeU v. 
Keith, 24 Vt. 871. 

5. Rights and liabilities of creditor as to debtor, 

114. Bight. A party who has a lien upon 
property for advances, where it is afterwards 
attached by creditors of the general 9wner, 
may purchase in the judgments at a dis- 
count and bid in the property on the execution 
without having to account to the general owner 
beyond the amount of his bid, where this is not 
done by request of the general owner, nor un- 
dertaken for his benefit ; audit is immaterial that 
this was done for the purpose of protecting his 
lien. Gordon v. Chase, 47 Vt. 267. 

115. Liability. An attaching creditor is 
not liable in trover to the debtor, after non-suit 
in his action, for neglect to return on demand 
property attached upon the writ, although he 
turned out the property to be attached by the 
officer, but never had personal possession. In 
such case, the officer only is liable for a return 
of the property. Adams v. Abbott, 2 Vt. 888. 

116. Where a suit is brought in good faith, 
and property attached, though the suit be aban- 
doned, and the property lost or destroyed in the 
hands of the attaching officer, the party attach- 
ing, being in no fault, is not liable for the loss. 
Jones V. Wood, 80 Vt. 268. 

6. Requisites for preserving Hen, 

117. Where an attachment of chattels is 
made by one officer and the execution is deliv- 
ered to another, it is necessary, in order to a 
preservation of the lien by a ** taking of the 
property in execution," that the second officer 
should, within thirty days from the rendering 
of the judgment, either actually levy upon the 
attached property, or else demand it of the first 
officer. BlodgeU v. Adams, 24 Vt. 28. Enos 
V. Brown, 1 D. Chip. 286. Clark v. Washburn, 
9 Vt. 802. Ayer v. Jameson, 9 Vt. 868. Col- 
lins V. Smith, 16 Vt. 9. 

118. But where the execution is delivered 
within thirty days from the judgment to the 
same officer who made the attachment, the at- 
tached property is thereby charged and the lien 
of the attachment preserved, although the exe- 
cution be not actually levied upon the attached 
property, nor demand be made upon the receipt- 
ors, within the thirty days ; but this must be 



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done within the life of the execution. Strong 
▼. Hofft, 2 Tyl. 208. Eno» v. Brmn, 1 D. 
Chip. 280. BUM v. 8tet>eM, 4 Vt. 88. Clark 
V. WaMum. Ayer v. Jameton. Dewey v. Fa/yy 
84 Vt. 188. 

119. An attachment made by the sheriff's 
deputy is the same as if made by the sheriff, 
and the lien is preserved by delivering the exe- 
cution, within thirty days from the judgment, 
either to another deputy of the same sheriff or 
to the sheriff himself. BUu v. Stetens. Ayer 
V. Jame$on. See Flanoffan v. Bayt, 86 Vt. 

laO. The delivery of process to a deputy 
sheriff is a delivery to the ^eriff ; but a deliv- 
eiy to the sheriff is not a delivery to the deputy. 
Thu8« where property is attached by a deputy, 
a seasonable delivery of the execution to the 
sheriff does not charge the property without 
due demand. Jametton v. Mason, 12 Vt. 6( 

121. A deputy sheriff attached property on 
a writ and suffered it to remain in the possession 
of the debtor, who absconded with it out of the 
county. The execution was delivered to the 
sheriff seasonably to charge the property, but 
he made no demand of it of the deputy. Held, 
that the deputy was not liable for not safely 
keeping the property and having it forthcom- 
ing, lb. 

122. The defendant, an officer, attached 
personal property upon three writs, and at the 
same time levied an execution upon it subject 
to the three attachments, and took the property 
into his possession. The executions obtained 
upon the three writs first served were placed for 
service in the hands of the plaintiff, another of- 
ficer, leaving the first execution still in the 
hands of the defendant. Held, that the plain- 
tiff acquired and had no right in the property 
as against the defendant to take it from him, or 
to retain it after having got it from him by a 
revocable consent, which was revoked. Bur- 
ToughM V.Wright, 19 Vt. 610. 8. C. 16 Vt. 
619. 

123. A judgment and a charging of the at- 
tached property in execution are essential to a 
perfecting of the lien created by the attachment. 
If the attaching officer suffers the property to 
pass to an earlier attaching creditor in satisfac- 
tion of his debt, and that lien is not so perfect- 
ed, he is liable to a kiter attaching creditor who 
so perfects his lien. Brandon Iron Co. v. 
Oleaton, 24 Vt. 228 ; and see Wilder v. Weath- 
erhead, 82 Vt. 765. 

124. Sniftciency of the demand. In an 
action against a town for the default of its con- 
stable in not keeping property attached so as to 
be forthcoming on execution, where the consta- 
ble had removed from the State, and the officer 
bokfingthe execution had within the 80 days 
made demand of the property of the debtors, 
sod of one of the receiptors, of the selectmen 



and of the town agent ;—Held, that the demand 
was sufficient to charge the property in execu- 
tion, and to fix the liability upon the town. 
Atutin V. Burlington, 84 Vt. 606. 

7. IHseharge of attachment Hen. 

125. An officer who takes property on pro- 
cess and delivers it to a third person to keep, 
taking his receipt and agreement to redeliver, 
does not thereby part with his lien, but that 
still continues, and he may retake the property 
into his possession at any time. Pierson v. 
Hof>ey, 1 D. Chip. 61. N. Chip. 77. 6 Vt. 
265. 

126. If a chattel be attached and receipted, 
and pass from the receiptor to a third person, 
though by purchase, who knows of the attach- 
ment and receipt, and gives the receiptor a bond 
to indemnify him against his receipt, the attach- 
ing officer may retake the property at any time 
during the pendency of the attachment. Brigg$ 
V. Mamm, 31 Vt. 488. 

127. Property attached in New York was 
delivered by the officer there to the creditor for 
safe keeping, who brought it into this State 
where it was attached by the defendant in a 
suit against the same debtor. In trespass by 
such creditor,— Held, that the defendant was 
liable, — for that the attachment lien was not 
discharged and the officer's liability continued. 
Utley V. Smith, 7 Vt. 154. 

128. A sale upon mesne process, under the 
statute, of a part only of the property attached, 
although for a sum exceeding the plaintiff's 
claim and exceeding the command in the writ, 
does not dissolve the attachment as to the re- 
mainder, nor impair the creditor's lien. Afar' 
khaU V. Town, 28 Vt. 14. 

129. If a plaintiff obtain final judgment 
against his debtor, his lien by attachment, or 
by trustee process, is preserved, though the 
debtor die before the taking out or levy of the 
execution upon the property attached, or before 
the proceedings have ended as to the trustee. 
MiUer V. WiUiame, 80 Vt. 886. 

130. A lien created by attachment is dissolv- 
ed by a confession of judgment, out of course 

as before a justice, in a suit returnable to the 
county court ; or, in a justice suit, before the 
same justice, on some other than the return day 
— and a subsequent attachment thereby becomes 
first in right. HaU v. Walbridge, 2 Aik. 216. 
Murray v. Eldridge, 2 Vt. 888. (Altered by 
R. 8. c. 106, s. 6, and again by G. S. c. 126, s. 
6.) 

131. Where a suit is commenced by attach- 
ment, a confession of judgment. does not of its 
mere force operate to discontinue the suit and 
dissolve the attachment, although it may furnish 
matter of defense by a merger of the cause of 
action ; and if, before any steps are taken or 



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any prejudice sufferecf by otlier creditors, the 
parties enter into a binding agreement to waive 
the confession and proceed with the original 
suit, this equally concludes the subsequent at- 
taching creditors and the debtor found the use 
of such technical defense to the action. 
FUUher v. Bennett, 36 Vt. 059. 

132. A suit is not necessarily discontinued 
and an attachment dissolved, because a defense 
has arisen to it— as by a confession of judgment 
merging the cause of action, or by a judgment 
in a cross-action embracing the same matter. 
lb,, citing WhippU v. Walker. lb. 665. 

133. One is not in a position to assert the 
peculiar rights of a creditor as to property of 
nis debtor sold without change of possession, 
who, after attaching it, abandoned his attach 
ment and suffered his debtor to sell the property 
and to pay him from the proceeds. Wooley v. 
Ed»an, 85 Vt. 214. 

8. Bailment to receiptor. 

134. An attaching officer may, if he choose, 
deliver the property to the creditor for safe- 
keeping, and may t^e security for its redeliv- 
ery. Gaimtt V. Sargeant, 26 Vt. 424. 

136. Where an officer, on the attachment of 
property, took the receipt therefor of the nomi- 
nal plaintiff in that suit, and of another person ; 
^Held, that this was no defense in a suit 
against him by the same party for not keeping 
the property attached, so as to have it forthcom- 
ing on the execution, where the suit was prose- 
cuted for the benefit of a third party who was 
the real owner of the claim. MeOnmby v 
J/brm, 29 Vt, 417. 

136. A creditor is not bound to take at his 
own risk the receipt taken by the officer for 
property attached. Howes ¥. Spicer, 23 Vt. 
508, , 

137. In an action against an officer for not 
•afely keeping property attached, it is no de- 
fense that the receiptor of the property, who 
was selected without the procurement or con- 
currence of the pUintiff, was amply responsible 
when the receipt was given, and likely to re- 
main so, but had become insolvent, whereby 
the property could not be restored. Gilbert v. 
€frandaUj 34 Vt. 188. AusUn v. Burlington, 
84 Vt. 606. See Bank of MiddMmry v. RuU 
land, 38 Vt. 414. 

138. Scope of contract. The receiptor of 
property attached undertakes to redeliver the 
property, or to show what will excuse the of- 
ficer from all liability to any one on account of 
the property not being surrendered. HedJUld, 
J., in Adams v. Fox, 17 Vt. 365. 

139. A receipt given to an officer for prop- 
erty attached is a eontra^t, which is binding 
according to its terms, and is not subject to 
contradiction or explanation like an ordinary 



simple receipt ; and this whether the action be 
assumpsit upon the receipt, or trover. Brotcn 
V. Gleed, 38 Vt. 147. Soule v. Austins, 36 Vt. 
519. 

140. Thus, it is conclusive as to the value 
stated, within the liability of the officer. Par- 
sons V. Strong, 13 Vt. 235. 

141. Also, that the property was in fact at- 
tached, and in the possession of the officer, and 
was delivered to the receiptor, as stated. 8peiu 
fier V. Williams, 2 Vt. 209. Lowry v. Cae^, 4 
Vt. 504. Allen v. Butler, 9 Vt. 122. BeUes y. 
MarsJi, 15 Vt. 454. 

142. A receipt to an officer for property at- 
tached promising to return it on demand, ** or 
pay the debt and cost*," &c., **or indemnify 
him against all damages, &c.,"— is an absolute 
undertaking to return the property on demand ; 
the alternative only limiting the extent of the 
recovery. CatUn v. Lottfry, 1 D. Chip. 896. 
Sibley V. Story, 8 Vt. 15. Page v. TkraU, 11 
Vt. 230. Broum. v. Oleed, 38 Vt. 151. 

143. Trover upon aq officer's receipt in or* 
dinary form.— Held, that it was not admiseible 
in defense, that the receipt was given under an 
arrangement that the receiptors might sell the 
property attached, and that they had sold it 
under that arrangement. Brown v. Oleed, 88 
Vt. 147. 

144. The plamtiff, an officer, attached ten 
''simrms" of bees, and the defendant receipted 
them by that designation. The bees having 
died without fault of the receiptor ; — Held, that 
the defendant was not liable on his receipt for 
the hives. Ide v. FasseU, 45 Vt. 68. 

146. The plaintiff, an officer, attached a 
railroad passenger car which was, in fact, car 
No. 3, but which in his return he described 
simply as "one passenger car," and by the 
same designation the defendant receipted it. In 
an action upon the receipt ; — Held, that the de- 
fendant was bound by his receipt to redeliver the 
very car attached, and that the plaintiff was 
not bound to receive any other— the defendant 
having taken no pains or care to inform him- 
self what particular car had been attached. 
Bomnsm v. Conant, 31 Vt. 479. 

146. Where an officer, holding an execution^ 
was induced by the receiptor of the property 
attached to levy upon other property thas that 
receipted, and it was afterwards claimed by 
other persons and under such circumstances as 
to create fair and reasonable doubt as to the of- 
ficer's right to sell it upon the execution, and 
the receiptor declined to give satisfactory in- 
demnity against such claim ; — Held, that the of- 
ficer was justified in abandoning his levy, and 
that the receiptor was liable on his receipt. Jb. 

147. Demand of the property. By a re- 
ceipt for property attached promising to return 
it to the officer on demand, both by the terms 
of the contract and the very nature of the bail* 



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ment, there is no duty cast upon the receiptor 
to return the property, and no cause of action 
arises against Jiim' on his receipt, until a de- 
mand is made for the property. Ccbrpenter v. 
SneU, 87 Vt. 355. Page v. ThrdU, 11 Vt. 280. 
BUM v. Stetem, 4 Vt. 88. 

148. The statute of limitations begins to run 
only from the demand. Page v. Thrall. 

149. Any officer holding the execution suf- 
ficiently represents the attaching officer to make 
demand of the property attached, so as to en- 
title the attaching officer, upon neglect to deliver, 
to maintain an action against his receipt-man. 
DaH9 V. MiOer, 1 Vt. 9. 

150. Where an attachment is made by one 
officer and the execution is delivered to another, 
it is sufficient to charge the receiptor, that pro- 
per demand of the property attached be made 
within the thirty days, by the second officer 
upon the first, and so as to charge him. The 
demand need not be made on the receiptor 
within the thirty days. Allen v. Ca/rty, 19 Vt. 
85. 24 Vt. 28. 

151. Where property is attached and a re- 
ceipt given therefor, a neglect to demand the 
property of the receiptor within the life of the 
execution will release him from his receipt, 
where the property is in the hands of the re- 
ceiptor or the debtor, although the property 
was duly '' taken in execution " (G. 8. c. 88, s. 
94) by demand made of the attaching officer 
within thirty days from the rendering of the 
judgment. Dettey y. Fay, 84 Vt. 188. 

162. Where the receiptor of property at- 
tached died before judgment and an adminis- 
trator was appointed, and no demand was made 
of either befSre the expiration of the execution, 
and it did not appear that the property had 
been used or disposed of, or the receiptor or his 
administrator disabled from returning the pro- 
perty if demand had been made \—lJeld, that 
the estate of the deceased was not liable on the 
receipt : that in order to perfect a right of ac- 
tion, demand should have been made of the ad- 
ministrator for a return of the property, within 
the life of the execution ; that such demand 
could not be dispensed with, unless in a case 
where there was no personal representative at 
the time when the demand ought to have been 
made. Carpenter v. Snell, 37 Vt. 255. 

153. An attaching officer demanded of the 
receiptor the attached property, when it was 
agreed between them that it should be delivered 
at a time and place of sale to be thereafter ap- 
pointed by the officer. The officer did not 
make the appointment, but without further 
demand sued the receipt. Heldy that here was 
no refusal to deliver, and that the officer could 
not recover. Ide v. Fassett, 45 Vt. 68. 

151 Declaration upon the receipt. In 
an action upon a receipt for property attached, 
where the breach alleged is the non-<Jelivery of 



the property on demand of an officer holding 
the execution other than the attaching officer, 
it is material to aver notice to the receiptor 
that the officer making the demand held the * 
execution issued on the judgment rendered in 
the cause in which the attachment was made. 
WaUrndge v. Smith, Brayt. 178. 

155. A declaration in assumpsit upon an 
officer's receipt for property attached, which 
set forth the plaintiff's title as derived from the 
attachment, was held ill on demurrer, for lack 
of averring a return of the writ, or any sub- 
sequent proceedings. Cooper v. Cree, 4 Vt. 
289. 

156. Party to sne. A sheriff may main- 
tain an action in his own name upon a receipt 
taken to his deputy, for property attached by 
the deputy. Dams v. Miller, 1 Vt. 9. 2 Vt. 
212. 86 Vt. 568. 

157. Where a deputy sheriff takes a receipt 
to himself for property attached, he may sue 
thereon in his own name. Spencer v. WiUiams, 
2 Vt. 209. 6 Vt. 67. 

158. A person specially authorized to serve 
a writ, may maintain an action upon the receipt 
given him for the property attached. Maxfleld 
V. ScoU, 17 Vt. 684. 

159. Evidence. An officer's return upon 
the execution, that he demanded the property 
attached, is not evidence of such demand. 
Green v. Holmes, 1 Vt. 12. 

160. In an action between an attaching 
officer and his bailees or receiptors, the attach- 
ing of the property may be proved otherwise 
than by the writ and return ; the receipt itself, 
if one be taken, is the appropriate evidence, 
and, in a suit upon it, is conclusive upon the 
party executing it. Loury v. Cody, 4 Vt. 504. 

161. Where an officer brings suit upon a 
receipt for property attached by him, he need 
not show an actual attachment of the property 
and delivery thereof to the receiptor by other 
evidence than his return and the receipt. Stim- 
sm V. Ward, 47 Vt. 624. 

162. In an action of trover founded upon an 
officer's receipt ;— Held, that the words **we 
being the receiptors thereof," used in a written 
acknowledgment of den^and of the property, 
was not sufficient evidence of the tenor of the 
receipt, to warrant a judgment ; that this was 
only evidence that a receipt had been given. 
Taylor v. Bhodes, 26 Vt. 57. 

163. Damages. The receiptor of horses 
attached, being duly charged by a demand, 
delivered other horses of the debtor for which 
the first had been exchanged, and these last 
were sold upon the execution. In an action 
upon the receipt ; — Held, that the rule of 
damages was the value of the property at- 
tached, deducting the price at which the substi- 
tuted property sold. Setoell v, SotcleSj 18 Vt, 
171. 



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164. Where the value of all the property 
attached was expressed in the officer's receipt 
at one entire sum, and a portion of the property 
had been withdrawn from the receiptor in sudi 
way as to release him therefor .—Held, that the 
damages to be recovered of the receiptor were 
the whole assumed value named in the receipt, 
less, not the actual, but the proportionate, 
value of the receipted articles for which he was 
not liable. Allen v. Carty, 19 Vt. 65. 

165. Defense. Where an officer attaches 
property and takes the ordinary receipt there- 
for, and afterwards the same officer takes the 
same property from the possession of the re- 
ceiptor or of the debtor by another process, the 
receiptor is thereby released on his receipt. 
Beach V. AbboU, 4 Vt. 605. Rood v. 8coU, 5 
363. 

166. But where property was so attached 
by and receipted to a sheriff, and it was after- 
wards taken from the possession of the debtor 
upon another process against him by a deputy 
of the same sheriff, but without the consent of 
the sheriff; — Held^ that the receiptor was not 
thereby released Flanagan v. Hojft, 86 Vt. 
565. 

167. The receiptors of property attached by 
copy left in the town clerk's office which after- 
wards went to the debtor's use, were AWtf not 
discharged by the fact that the plaintiff in the 
first suit had, after that attachment and before 
the giving of the receipt, attached the same 
property as a deputy sheriff by a like copy, 
upon a writ in favor of another party against 
the same debtor. Mason v. Whipple, 82 Vt. 
654. 

168. Where property was attached and re- 
ceipted to the officer, and, before demand made 
of the receiptors, was sold by the officer at pub- 
lic auction, with consent of all the parties in in- 
terest .—Held, that this operated to rescind the 
contract of the receiptors, and that no action 
would lie thereon, although the avails of the 
sale were paid into the hands of the receiptors, 
and the sale was for their benefit and under 
their directions,— they thereby inciuring a 
new and different liability. KeUy v. Deleter, 
15 Vt. 310. 

169. In an action upon an officer's receipt 
given for property attached, it is a defense to 
the receiptor, that the property belonged to 
himself and that he so informed the plaintiff at 
the time of the attachment. Adams v. Fox, 17 
Vt. 861. 24 Vt. 260. 

170. A judgment against the receiptor of 
property attached in favor of the sheriff is 
merely collateral to the debt, and for the benefit 
and security of the sheriff merely. The pay- 
ment of the debt discharges the obligation of 
the sheriff to the creditor, and his right to en- 
force the judgment for the creditor's ben ::fit. 
If, after payment ol the debt, the creditor seeks ' 



to enforce such judgment, chancery will enjoin 
him. Paddock v. Palmer, 19 Vt. 581. 

9. Sale on attachment. 

171. Property attached may be sold upon 
mesne process under G. 8. c. 83, before the de- 
livery of a copy of the writ to the defendant. 
Marshall v. Town, 28 Vt. 14. 

172. Where application is made foi the sale 
of property attached on mesne process, and the 
officer has given the proper notice to the debtor 
of the time and place when and where he will 
proceed to have appraisal made, it is not neces- 
sary to his justification in selling the property, 
that he should notify the debtor that the ap- 
praisal has been had, and the amount of it, al- 
though the debtor was not present at the ap- 
praisal or sale. AbboU v. Kimball, 28 Vt. 542. 

173. On a sale of property attached, made 
on application of the creditor, the officer gave 
the debtor verbal, but not written notice of the 
application, as required by G. S. c. 38, s. 41 ; — 
Held, that the sale was illegal ; and held, that 
the want of due notice was not, as matter of 
law, waived by the debtor's presence at the ap- 
praisal and sale without objecting to the pro- 
ceedings. Walker v. Wilmarth, 87 Vt. 289. 

174. Where attached property beoomes, by 
process of law, converted into money in the of- 
ficer's hands, and is invested by him so as to 
produce interest, such interest wiU belong to 
the party who may be ultimately entitled to the 
money, and not to the officer. Richmond v. 
CoUamer, 38 Vt. 68. 

175. The plaintiff, an officer, sold property 
on an attachment which was bid in by the de- 
fendant as the friend and agent of the debtor, 
and the defendant gave the plaintiff his note 
for the purchase upon interest, and suffered 
the property to go back into the hands of the 
debtor. The suit was settled, and the creditor 
directed the plaintiff to surrender to the debtor 
all the property and securities derived from the 
attachment. The plaintiff then gave up to the 
defendant his note, but claimed the accrued in- 
terest upon it as legally belonging to him, to 
which the defendant acceded, and gave the 
plaintiff liis written promise to pay the same. 
In an action on such promise •,—Held, that the 
plaintiff was not entitled to the interest upon 
the note ; that the written promise to pay the 
same was without consideration, and that the 
plaintiff could not recover. lb, 

II. Attaohmbnt of Real Estatk. 

176. An attachment of a whole town as the 
property of a defendant will hold all the lands 
which the defendant owns, as appears of re- 
cord, in that town. Young v. Judd, Brayt. 
151 ; but such attachment will not hold is 



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ATTACHMENT, IH, FV.— ATTORNEY, I. 



n 



against an apparent owner by the record, other 
than the defendant. Hoy v. Wright, lb. 208. 

177. Under the act of 1828, it was a suf- 
ficient attachment of real estate for the officer 
to leave a properly certified copy of the writ 
and return with the town clerk, with a request 
that he record the substantial part of it, and to 
pay him the fees therefor. Huntington v. Cob- 
fei^A,5Vt. 49. 28Vt. 650. 

178. An attachment of real estate by a copy 
left in the town clerk's office, though not re- 
corded as required by the act of 1828, was held 
to prevail against a subsequent purchaser who 
saw the copy on file before his purchase. lb. 

179. If the copy of an attachment left in 
the town clerk's office is 'so wholly defective 
that the original, if like it, would be altogether 
Yoid and could not be made good by amend- 
ment, this is no notice of a valid attachments- 
otherwise, if the variance is but triffing. lb. 
citing Herring v. Harmon, 5 Vt. 56. 22 Vt. 381. 

180. Ever since the Revised Statutes of 1889 
the law has been as it was before the act of 
Nov. 6, 1828 (Blade's Stat. 108), that an at- 
tachment of real estate is effected by the of- 
ficer's leaving in the town clerk's office a true 
and attested copy of the attachment with his 
return thereon. The entry and record required 
to be made by the town clerk is not essential 
for the creating of the lien, and it will not be 
defeated by his omission to make such entry 
and record. (G. S. c 88, s. 87.) BrcUey v. 
French, 28 Vt. 546. 

181. The plaintiff's writ against W was 
served by lodging a copy of it in the town 
clerk's office with a return properly made and 
certified to attach W's real estate. The town 
clerk did not keep it safely, nor make any re- 
cord of the attachment, and through this failure 
the copy was soon lost, or taken from the office, 
and no trace of the attachment was left there. 
Afterwards, and before final judgment in the 
suit, W conveyed the premises, for adequate 
consideration advanced, to other parties, who 
had no notice of the attachment and believed 
the title to be as shown of record, and they pro- 
cured their deed to be recorded. Held, that no 
lien was create by the attachment as against 
such purchasers, and that the town was liable to 
the plaintiff for such default of their town clerk. 
Burehard v. Fairha/oen, 48 Vt. 827. 

182. Where the return of service of an at- 
tachment of lands was complete as to the de- 
fendant therein, but showed only a copy of tha 
writ left in the town clerk's office ;^Held, that 
no lien upon the land was created thereby. Cox 
V. Johns, 12 Vt. 65. 22 Vt. 381. 

183. An officer attaching real estate acquires 
no special property therein, and no act or decla- 
ration of his can defeat the lien thereby creat- 
ed—as by withdrawing the copy left with the 
town clerk. Such lien is m the creditor, and he 



only can release or discharge it. Braley v. 
Freneh, 28 Vt. 546. 

184. An attaching creditor of real estate 
with notice, either actual or constructive, of the 
true state of the debtor's title, stands in no bet- 
ter position than a purchaser with the same 
notice. Perrin v. Reed, 85 Vt. 2. Hackett v. 
CaOender, 32 Vt. 97. HaH v. Farm, db Mech, 
Bank, 33 Vt. 252. 

III. Defense by SunsEQrENT Attaching 
Cbbditob. 

185. The statute which gives subsequent 
attaching creditors the right to appear and de- 
fend the earlier suit makes them so far parties, 
that their right to an appeal follows, as an inci- 
dent. Chaffee v. Malarkee, 26 Vt. 242. 

186. A subsequent attaching creditor, com- 
ing in to defend against a prior attachment, 
may set up some defenses which the debtor 
could not ;— as by showing that the first was 
fraudulent as to other creditors. Harding v. 
Harding, 25 Vt. 487. 36 Vt. 662. 

187. G. S. c. 30, s. 44, allowing a subse- 
quent attaching creditor *^ wishing to contest 
the validity of the debt or claim on which the 
previous attachment is founded " to appear and 
** defend the suit," allows only a defense to the 
merits, such as die debtor might make, and, in 
addition, in his right as creditor, that the prior 
claim is collusive or fraudulent ; and he cannot 
plead in abatement, or make other dilatory ob- 
jection to the action, or urge any mere techni- 
cal irregularity. Farr v. Ladd, 87 Vt. 166. 
Fletcher v. BenneU, 36 Vt. 659. 

IV. Attachment Aided in Chancbbt. 

188. If one acquire a lien upon property by 
attachment, he may claim the aid of a court of 
equity to make it available, if he has taken the 
proper measures to preserve and enforce it. 
Bowan v. Union Arms Co., 36 Vt. 124. 8. C, 
45 Vt. 160. 

189. Such aid granted, where there was a 
claim upon the property by a conditional ven- 
dor, and an accounting was necessary to ascer- 
tain the sum to be tendered upon it, within the 
ten days limited in G. 8. c. 33, s. 28, and the 
bill was brought within such ten days, and the 
lien of the attachment was preserved by a judg- 
ment afterwards obtained, with stay of execu- 
tion, n. See Fates v. Boberts, 38 Vt. 503. 



ATTORNEY (AT LAW). 

I. His Authobity. 

II. Duties and Liabilities. 

III. Rights. 

IV. Pbiyxleged Communications. 



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ATTORNEY, I, IL 



Jiules for the admissian of aUomeys, a/nd regu- 
laUng their pracUce : 

1 Tyl. 2 (1800)— Rule 15 and Mq, Brayt 14 
(1817).— 1 D. Chip. 608 (1824)— 1 Aik. 408 
(1827).— 14 Vt. 666 (1848)— 24 Vt. 678 (1863). 

I. His AUTHOKITY. 

1. There is, in this State, combined in the 
character of attorney that of agent to a certain 
extent; and, Jield, that an attorney, who re- 
ceives a demand for collection from a creditor 
who resides at such a distance that he cannot 
be consulted, and is without express instruc- 
tions as to the course to be pursued, has a dis- 
cretion not to have the debtor committed to 
jail, or to release him from jail after commit- 
ment, and is not liable for so doing, provided 
he believes such course best for the interests of 
the creditor, and he acts with common pru- 
dence ; and, in so doing, he may be guided by 
the apparent circumstances of the debtor, after 
reasonable examination. JTopkiiM v. Willard, 

14 Vt. 474. 

2. The attorney of an execution creditor has 
full authority to direct an officer as to the time 
and manner of enforcing the execution, short 
of discharging it withput satisfaction — as to 
proceed, or to suspend procffedings, &c. WU- 
lard V. Ooodrieh, 81 Vt. 597. Kimball v. Perry, 

15 Vt. 414. 

3. The fact that the plaintifTs attorney in 
the original suit acts also as the attorney of the 
defendant in making a replevin writ to regain 
possession of the property attached, and draws 
up and consents to the replevin bond, does not 
necessarily free the officer serving the replevin 
writ from liability for ^the insufficiency of the 
bond. To have this effect, the officer must be 
aware that such attorney was the attorney of 
the plaintiff in the original suit, and the attor- 
ney must either act in behalf of such plaintiff 
in consenting to the bond, or give the officer 
good reason to believe that he consents to it in 
such plaintiff's behalf. Bank of MiddUbury v. 
BuOand, 88 Vt. 414. 

4. The authority of va attorney does not 
appertain to the station of an attorney's clerk, 
as such. Carter v. TakoU, 10 Vt. 471. 

5. Whether an attorney can in any sup- 
posable case, without express authority, bor- 
row money to prosecute an action, and bind 
his client thereby — gtuBre, Meld, in this case, 
that the credit was in fact given to the 
attorney. Bell v. Mason, 10 Vt. 609. 16 Vt. 
821. 

6. An attorney who only prosecutes or de- 
fends a suit, has no power, as such attorney, to 
bind his client by ihe employment of assistant 
counsel. Whether such authority, was given 
him by his client in the particular case^ is a 



question of fact. Paddock v. Colby, 18 Vt. 485. 
Briffgs v. Georgia, 10 Vt. 68. 

7. Under peculiar circumstances, as in ui 
unexpected emergency, when the principal is 
at a distance and cannot be consulted for in- 
structions, such authority might be implied. 
Willard v. Danville, 46 Vt. 98. 

8. An attorney, as such, and without special 
authority, has no power to bind his client by a 
compromise and settlement of the cause of ac- 
tion, without receiving the full amount of the 
claim. Vail v. Conant, 16 Vt. 814. (Cimtro, 
Butler V. Knight, 2 Law Rep. Ex. 109, in 
1867) ; nor to assign the demand. Penniman 
V. Patehin, 5 Vt. 846. Carter v. TakoU, 10 
Vt. 471. 

9. The appearance for a suitor in court, 
whether a natural person or a corporation, by 
an attorney of the court, is evidence. of his 
authority which cannot be questioned by the 
adverse party ;— as by showing the irregularity 
of the corporate meeting at which he was ap- 
pointed. Proprietors, dc, v. Bishop, 2 Vt. 
281. 

10. Whether a suit is authorized by the 
plaintiff is a matter resting between attorney, 
or solicitor, and client, with which the court 
never interferes at the suggestion of the re- 
spondent. Boolittle V. Oooldn, 10 Vt. 266. 

11. Where the record shows the appearance 
of a party by attorney, it cannot be controvert- 
ed. If the attorney entered without authority, 
the party's remedy is against him. CoU v. Shel- 
don, 1 Tyi- 300. AbboU V. Button, 44 Vt. 646. 
8t. Albans v. Bush, 4 Vt. 68.* Newcomb v. Peek, 
17 Vt. 802. Spauldi'ng v. Swift, 18 Vt. 214. 

II. Duties and Liabilities. 

12. It is the duty of an attorney who under- 
takes the collection of a debt, without special 
instructions, to pursue it through all the stages, 
as well against the sheriff and bail as against 
the principal, till the object is effected ; but he 
is justified in not prosecuting, unless specially 
directed, in cases where he is influenced by a 
prudent regard to the interests of the creditor. 
Crooker v. Hutchinson, 2 D. Chip. 117. S, C, 
1 Vt. 78. 15 Vt. 421. 

13. Thus, he is bound to pursue the bail in 
due course, though insolvent, where there is a 
probable cause of action against the sheriff for 
taking insufficient bail, and that course is neces- 
sary to lay the foundation for proceedings 
against him. Crooker v. Hutchinson, 1 Vt. 78. 

14. In ordinary cases, where an attorney is 
employed to take the care and management of 
a suit, he has a right to consider his employ- 
ment as continuing to the end of the litgation, 
unless dismissed by his client, and, indeed, he 
would have no right to abandon it, without 
giving the client seasonable notice. Langdon 



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ATTORNEY, HI. 



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and skill, whereby the value of his services are 
enhanced. Vilas v. Doumer, 21 Vt. 419. 

23. For the purpose of aiding in determin- 
ing such reasonable compensation, it is proper 
to receive evidence as to the prices usually 
charged and received for similar services by 
others of the same profession, in the same 
vicinity, and in the same courts. Ih. 28 Vt. 
66a. 

24. Where a lawyer is employed by one who 
has a full knowledge of his rate of charges, 
without stipulating at all as to price, it might 
fairly be inferred, perhaps, that the client ex- 
pected to pay at such rates, and might be 
equivalent to an express contract to pay them; 
but where a knowledge of the rate of charges, 
(as by a presentation of a copy of the account; 
only comes to the client during the employment, 
as in prosecuting a suit, his mere silence upon 
the subject, or suffering the lawyer to complete 
his then engagements, cannot fairly be constru- 
ed into such an acquiescence in the amount of 
the charges, as to estop him from afterwards 
disputing them. lb. 

25. An attorney cannot recover for services, 
which, through his omission or mistake, be- 
come of no avail to his client,— as where he 
neglected to take out an execution in the case 
and commit it to an officer in season to charge 
property attached, or so as to afford his client 
an opportunity to test his claim to u lien. Nix- 
on V. Phelps, 29 Vt. 198. 

26. —when demandable. Where an attor- 
ney puts a demand in suit for his client, the 
law does not imply an agreement that he is, in 
the first instance, to look to the demand as a 
means of satisfying his costs ; nor that he is to 
wait for his pay until it shall be determined 
whether the demand is collectable or not ; and 
there is no such general or settled usage upon 
the subject as will furnish evidence of an im- 
plied contract to that effect. Nichols v. Seott, 
12 Vt. 47. 

27. His retainer being but one employment, 
continuous and entire, the statute of limitations 
does not begin to run upon his charges In the 
suit until the suit is ended, unless sooner dis- 
charged. Dwms V. 8mUh, 48 Vt. 52. 

28. Legality of contract. An agreement 
between attorney and client, that the attorney 
should be paid a fair compensation for his ser- 
vices and money expended about a suit, and 
the one-half of what might be recovered, was 
held void as to such excess. Mott v. Harring- 
Um, 12 Vt. 199. 

29. A guaranty given by an attorney to the 
creditor of a third person, that he will pay the 
debt, in consideration that the demand be com- 
mitted to him and be under his control as attor- 
ney f Of the creditor, does not savor of mainten- 

to the nature of the business performed, and lance or champerty, and is upon sufficient con- 
Ids own standing in the profession for learning I sideration. Gregory v. Oleedy 83 Vt. 405. 



V. Castletan, 80 Vt. 285. Dofds v. Smith, 48 
Vt. 53. 

15. A suit upon a recognizance given for an 
appeal is not a branch of the first suit, in such 
sense that the retainer of an attorney to defend 
the first suit extends to an employment to de- 
fend the second. Smith v. Dougherty, 87 Vt. 
590. 

16. An attorney is not liable, without spe- 
dal undertaking, to pay the fees of his client's 
witnesses. Sargeant v. Petttbone, 1 Aik. 855. 

17. From the indorsement by an attorney of 
his name, as attorney, upon a writ given put 
for service, the law does not imply a promise 
on his part to pay the officer his fees for ser- 
vice. Wires v. BHggs, 5 Vt. 101. 

18. In an action against an attorney for 
n^igence (as for failure to collect a debt), 
the damages are to be measured by the amount 
of loes sustained, and not by the amount of the 
debt ; and any fact which may tend to reduce 
the value of the debt below the nominal amount 
ie proper to be considered. Grooker v. Hutoh- 
inson, 2 D. Chip. 117. 

19. In an action against an attorney for 
neglect to issue a scire facias against insol- 
vent bail, whereby the right of pursuing the 
officer for taking insufficient bail was lost ;— 
Held, that the damages recoverable were the 
same as if the bail was solvent.— taking into 
account the right of such bail to surrender the 
principal in his own discharge. Crooker v 
Hutchinson, 1 Vt. 78. 

20. 8, an attorney in a suit, employed H, 
another attorney, to assist him in its manage- 
ment. H assisted him, and was employed by 
no one else ; nor did it appear that 8 had any 
authority from his client to employ H, nor did 
he profess to employ H in behalf of his client. 
Meld, that 8 was liable to H, without proof of 
an express promise to pay ; that his request was 
equivalent. Scott v. Hoxsie, 18 Vt. 60. 

21. An attorney having a demand to col- 
lect, by fraudulently representing its condition 
and value, purchased it of his client at a discount, 
and afterwards collected it in full. Held, that 
he was not liable to the debtor for the differ- 
ence—his liability was to his client. Marshall 
V. Joy, 17 Vt. 546. 

III. Rights. 

22. Oompensation. There is no reason nor 
authority to distinguish the rule of compensa- 
tion for the services of lawyers, from that which 
obtains in every other employment for service ; 
—that is, in the absence of any stipulation as 
to price, that he should be paid such sum as his 
services are reasonably worth, or as he reason- 
ably deserves to have, having a proper reference 



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ATTORNEY, IV. 



30. An attorney or solicitor employed in a 
cause does not acquire, by the purchase of the 
interest of the adversary party, the right, as 
agunst his client, of such adversary party, and 
the client may, at his election, treat the pur- 
chase as made for himself. D<Mm v. tinUtK, 43 
Vt. 269. 

31. Lien f6r fees, te. An attorney has a 
lien upon the judgment recovered by him, to 
the amount of such fees as are allowed to the 
party for his term, travel and attorney fee, 
and for all moneys expended in prosecuting the 
suit ; but not the extra fees of counsel for argu- 
ment, Ac. Heartt v. GUpman, 2 Aik. 162. 
WaXker v. Sargeant, 14 Vt. 247. 

32. Such lien for costs, applies to an award 
of arbitrators. Hutehituon v. Howard^ 15 Vt. 
544. 

33. As between the creditor and his attor- 
ney, the money to the amount of the lien of 
the latter is his, and cannot be assigned by the 
former. ' If received by the assignee, the attor- 
ney may recover it out of his hands by an ac- 
tion for money had and received. Heartt v. 
Chipman, 2 Aik. 162; and may hold it as 
against a trustee process. Hutchinson v. How- 
ard, (See Patrick v. Haeen, 10 Vt. 188.) Hoot 
v. Bom, 29 Vt. 488. 

34. An attorney has no such lien as will 
prevent the parties settling and abandoning a 
litigated suit, though notified of the lien. Foot 

V. Tiwkiburyy 2 Vt. 97. 

35. Nor, any such lien previous to final judg- 
ment, as to prevent or affect a bona fide settle- 
ment of the parties. Hutchinson v. PetUs, 18 
Vt. 614; though a default has been entered 
and the cause stands continued. Hooper v. 
Welch, 48 Vt. 169. 

36. Where an attorney is sued for money 
upon which he has a lien, he need not plead 
the lien in set-off, but may urge it in defense 
under the general issue. Patrick v. Hcaen, 10 
Vt. 188. 

37. Where an attorney had in his hands for 
collection a demand against B, and B gave the 
attorney a demand against C to collect and ap- 
ply the avails upon the first demand -.—Held, 
that this alone, and without a distinct contract 
to that effect, did not create a lien upon the 
last demand in favor of the first ; and that an 
ofiicer was justified in taking the direction of 
B in the management of his execution against 
C. Goodrich v. MoU, 9 Vt. 895. 

38. If an attorney, having a lien for his 
costs, sue his client therefor and obtain judg- 
ment, and assign the judgment, the lien is lost 
and does not attach to the claim in the hands 
of the assignee. Beech v. Canaan, 14 Vt. 485. 

39. A solicitor in chancery acquires no 
specific lien, for his services and disbursements, 
upon lands recovered in a suit in chancery. 
Smalley v. Cla/rk, 22 Vt. 598. 



40. An attorney's lien will not be protected 
against pre-existing rights of others, — as, 
against a set-off. talker v. Sargeant, 14 
Vt. 247. 

41. If there is any collusion or design in 
the settlement or payment of the judgment to 
cheat the attorney of his lien, the debtor is not 
protected by payment to the creditor, although 
there is no notice given of the lien by the attor- 
ney to the debtor. Heartt v. Chipman, 2 Aik. 
162. 

42. Notice of such lien need not be given in 
person to the judgment debtor ; but knowledge 
of the intention of the attorney to insist upon 
his lien, derived from other evidence of such a 
character as would and ought to obtain credit 
under ordinary circumstances, is sufi^cient and 
binding upon the debtor. Lake v. Ingham, 8 
Vt. 158. 

43. But notice of such lien will not prevent 
the conclusiveness of a settlement of a contested 
action sounding in tort, especially where the 
damages claimed were unliquidated. Hutch- 
inson V. Pettes, 18 Vt. 614. Foot v. Tewksbury, 
2 Vt. 97. 

44. An attorney has a general lien upon all 
papers of his client in his hands, and upon the 
balances equitably due thereon, not only for 
the expenses incurred in the particular suit, but 
for any general balance due him. Hedfieid, J., 
in Hutchinson v. Howard, 15 Vt. 546. 

IV. PrIVILBOED COMMITNIGATIONS. 

45. The general rule is, that all communi- 
cations which the client makes to his attorney, 
for the purpose of professional advice upon the 
subject of his rights or liabilities, are privileged. 

Wetherbee v. Etekiel, 25 Vt. 47. 

46. An attorney's privilege from testifying 
to communications of his client is the privilege 
of his client, and not of the attorney, and is 
limited to such disclosures as are made in con- 
fidence by the client to his attorney in the course 
of his employment. Dixon v. Parmelee, 2 Vt. 
185. 

47. An attorney will not be compelled to 
produce to a grand jury a paper intrusted to 
him, in professional confidence, by his client. 
State V. Squires, 1 Tyl. 147 ; nor to produce it 
on trial of a cause. Durkee v. Leland, 4 Vt. 
612. 

48. The privilege of refusing to disclose in 
court confidential conmiunications, does not ex- 
tend to one who is not an attorney, or attorney's 
clerk, or counsellor^ although he may be study- 
ing law and have an ofllce and do business as a 
lawyer, and may be acting as counsel and at- 
torney for the party when, and in the business 
about which, the communications are made. 
Holman v. Kimball, 22 Vt. 555. 

49. Where a party had a conversation with 



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an attorney in reference to his 'matters about 
which litigation was probable, but where there 
was no retainer, and nothing to show that the 
party sought the advice with any view to regu- 
late his futtu*e conduct in regard to a pending, 
or expected, litigation ; — ffeldy that his commu- 
nications were not privileged. The loose prac 
tice of the profession of giving gratuitous street 
opinions, commented upon and condemned. 
Thompson v. Kilbome, 28 Vt. 750. 

50. In order that a communication to an at- 
torney be privileged, the relation of attorney 
and client must exist, and the attorney must 
for the time being be acting in the character of 
l^al advisor of the party making the communi 
cation, or, at least, the party should have good 
reason to suppose he is so acting, and the com. 
munication must be of a confidential and pro- 
fessional character. Coon v. Stoan^ 30 Vt. 6. 

51. Where an attorney acted simply as a 
nei^ibor in the business of another, but by his 
request, not charging nor expecting compensa- 
tion, and this was so understood ; — Held^ that 
a communication to him by the party employ- 
ing him was not privileged. lb. 

52. Communications made to an attorney 
in a suit by one who is a mere nominal party 
having no interest, are not privileged from dis- 
closure in evidence by the attorney. AUen v, 
Harrison, 30 Vt. 219. 

53. Communications to an attorney, to be 
privileged, must be made to him confidentially, 
as counsel ; the relation of attorney and client 
must exist at the time, and the communication 
be made for the purpose of obtaining counsel, 
advice, or direction in r^ard to the client's legal 
rights. A general retainer in the matter is not 
necessary, but the attorney must be counsel 
upon the subject upon which the conference is 
had, and the communication must be made to 
him as such counsel. The burden is upon the 
party who seeks to have his statements sup- 
pressed as evidence, to prove the facts which 
make them privileged. Barle v. Grout, 46 Vt. 
118. 

54. It was offered to be proved by the at- 
torney who assisted a party in confessing a 
judgment and having an execution issued there- 
on and sale of property, that such party told 
him be wanted the property sold so it could 
not be attached by his creditors. Heid, that 
the communication was privileged, and not ad- 
missible. Maxham v. PUice, 46 Vt. 434. 

55. The plaintiff's agent, who, as such, had 
sold the goods in question, went to an attorney 
to have him *ring a suit for the price. The 
attorney, after hearing the agent's story, de- 
clined to bring the suit on the sole ground that 
he thought a suit could not be maintained, and 
■0 advised. Held, that the communication of 
the agent wa« privileged. Strong v. Dodds, 47 
Vt. 348. 



AUDITA QXTEBELA. 

I. When Maintainable. 
II. When not Maintainable. 
III. Natuke of Wbit, Parties, &o. 

I. When Maintainable. 

1. Generally. Audita querela lies to va- 
cate a judgment sought to be enforced, where 
a defense has arisen since the judgment ; also 
where defense to the claim existed before the 
judgment, but the party had no opportunity to 
make it for want of notice ; or, having notice, 
was deprived of his opportunity by the fraud 
of the other party. Stamford v. Barry, 1 Aik. 
321. 

2. it bears solely upon the acts of the oppo- 
site party, and not at all upon the judgment of 
the court. The complaint sounds in tort ; the 
proper plea is not guilty, and damages are re- 
coverable. Little V. Cook, 1 Aik. 363. 

3. An audita querela to vacate a judgment, 
alleging that the complainant was deprived of 
his day in court by the fraud of the defendant, 
was held good, without an averment that the 
complainant had a good defense to the action. 
Eddy V. Cochran, 1 Aik. 369. 

4. A writ of error fastens upon errors com- 
mitted by the court, does them away, and pro- 
ceeds to do that justice between the parties 
which the court below ought to have done. An 
audita querela aeiues upon the misconduct of the 
recovering party, as a reason for setting aside 
an execution for a cause arising after judgment, 
or for setting aside the judgment, on the ground 
that the complainant has had no day in <;ourt. 
Hutchinson, J., in Weeks v. Lawrence, 1 Vt. 
437. 

5. It is not the ofllce of an audita querela to 
correct errors in a judgment rendered in a case 
where the court had jurisdiction. Lamson v. 
Bradley, 42 Vt. 166. 

6. It lies to set aside the judgment of a jus- 
tice of the peace in a cause where he had not 
jurisdiction of the subject matter— as, in an ac- 
tion of covenant for breach of covenant of title, 
HasUngs v. Webber, 2 Vt. 407 ;— action of slan- 
der. B(Ul V. Sleeper, 23 Vt. 673 ;— replevin of 
one kind, QUyfoer v. Chase, 27 Vt. 533. 

7. Execation. If an execution has been 
irregularly issued, although by mistake, and 
has been delivered to an officer for service, the 
debtor may proceed by a/udita querela to super- 
sede it, and may pursue his remedy until he 
knows that he is in no danger from the execu- 
tion. Phelps V. Slade, 18 Vt. 195 ; and see 
Hovey v. Niles, 26 Vt. 641. 

8. It is not necessary that the complainant 
should be actually in execution, or that an exe- 
cution should have actually issued. It is sufll- 
cient if he is exposed to and is threatened with 



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AUDITA QUERELA, H. 



an irregular and invalid execution. OUmer v. 
ChMe, 27 Vt. 688. 

9. Fraud as to notice. An audita qvtrela 
was held good, which complained that the res- 
pondent procured a deputized person to make 
return of service upon the complainant and 
took judgment against him, well knowing that 
such service had not been made, and that the 
complainant had no notice of the suit. Stone 
V. SewoeTy 5 Vt. 549. 

10. Agreement to discontinae. A judg- 
ment of a justice, taken by default, was set 
aside on audita querela^ where the complainant 
failed to appear because he understood that the 
suit was agreed to be discontinued, and the 
other party knew that he so understood it. 
Perkins v. Cooper, 29 Vt. 729. 

11. Out of State. Where the judgment of 
a justice has been rendered against a defendant 
who was out of the State at the commencement 
of the suit, to whom no notice was given and 
where no recognizance was given for a writ of 
review, the judgment may be set aside upon 
audita querela. Martin v. Wilkins, 1 Aik. 107. 
Alexander v. Abbott, 21 Vt. 476. Whitn^ v. 
Silver, 22 Vt. 684. Kidder v. HadUy, 26 Vt 
644. Eastman v. Waterman, 26 Vt. 494. 

12. The record in such case must show no- 
tice, or else a compliance with the statute re- 
qtiirements in lack of notice, and the giving of 
a recognizance for a review. Upon the trial of 
the audita querela, notice in fact cannot be 
proved by parol. Kidder v. Hadley. 

13. Where there were three trustees of 
railroad, one resident and two non-resident, 
and a trustee process was issued against the 
three, but was served only by a copy left 
with the agent for the non-resident trustees 
appointed under Q. 8. c. 28, s. 118, and judg- 
ment passed by default against those two 
only, as tnistees ;— ^<jW, that the irregularity 
was not such as that the judgment could be. set 
aside on audita querela. Hamilton v. Wilder , 
81 Vt. 695. 

14. Executioli against body. An audita 
querela lies to set aside an execution wrongfully 
issued against the body, instead of against the 
property only, of the complainant. Saieyer v. 
VUas, 19 Vt. 48. StoughUm v. BarreU, 20 Vt. 
885. 

15. Void execution. It lies to set aside a 
void execution in the hands of an officer ; — as 
where a justice execution was made returnable 
in 60 days, which should have been 120 days. 
Hovey v. Nilee, 26 Vt. 541;— so, where it mis- 
described the judgment as to the amount. Wil- 
9on V. Fleming, 16 Vt. 649. 

16. WrongftQ levy. It is an appropriate 
remedy to vacate the levy of an execution on 
land, where the levy is good upon its face, but 
the officer set off a different piece of land and of 
greater value than the one appntised; or where, 



by direction of the creditor, more of the debtor's 
property was set off, on the basis of the ap- 
praisal, than was sufficient to satisfy the execu- 
tion. Hurlbut V. Mayo, 1 D. Chip. 887. Hop^ 
kinn V. Ilajfward, 84 Vt. 474. Stanley v. Mo- 
Clure, 17 Vt. 255. 

17. So in any case, where, the execution is 
used in a manner not lawful, and such use is 
oppressive and burdensome, and where the use 
of it can be set aside, this is an appropriate 
remedy. Fairbanks v. Betferaux, 48 Vt. 550. 

18. Insane person. A judgment of a jus- 
tice of the peace against an insane person under 
guardianship, where his guardian was not noti- 
fied of the suit and no guardian was appointed 
for him by the justice, was vacated on audita 
querela, Williams, C. J., dissenting. Lincoln 
V. Flint, 18 Vt. 247. 

19. InfjEtnt. An audita querela lies to set 
aside a judgment rendered by a justice of the 
peace against an infant, who had no guardian 
notified, or appointed by the court. Judd v. 
Downing, Brayt. 27. Uneoln v. FUnt, 18 Vt. 
247. SPirbird v. Mo(yre, 21 Vt. 529. See Black- 
mer v. Dow, 18 Vt. 293. 

20. But not, where his father and natural 
guardian was sued jointly with him, and ap- 
peared and defended the suit. Wrisley v. Ken- 
yon, 28 Vt. 5. Pnest v. Hamilton, 2 Tyl. 50. 

21. Nor, in favor of an officer who suffered 
judgment by default for neglect to collect an 
execution against the infant, while the judg- 
ment against the infant remained in force. So- 
lace V. Downing, Brayt. 27. 

22. A judgment in the county court against 
an infant, without the appointment or appear- 
ance of a guardian, cannot be vacated by audita 
querela, but only by writ of error. Chase v. 
SooU, 14 Vt. 77. 

23. Bankrupt. Audita querela lies to re- 
lease a certificated bankrupt from close jail. 
Comtitoek v. Grant, 17 Vt. 512. AUUr, where 
he is in the jail liberties on jail-bond. Qould v. 
Mathewson, 18 Vt. 65. 21 Vt. 566. 

24. Beftisal of appeal. By long usage in 
this state, an audita querela isheld to be a 
proper remedy for the party aggrieved by the 
wrongful refusal of a justice of the peace to 
allow an appeal. Tyler v. Lathrop, 5 Vt. 170. 

25. Tlie above case has been followed in 
cases precisely identical, yet we are not disposed 
to extend it, by a supposed analogy of reason- 
ings, so as to make it an authority for other 
cases. Bennet, J., in Spear v. FUnt, 17 Vt. 
498. And see Harriman v. Swift, 81 Vt. 885. 



II. When not Maintainable. 

26. In order to warrant the setting aside of 
a justice judgment on audita querela for re- 
fusing an appeal, the complainant must in fact 
have done everything which the law requires 



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in order eflfectually to take an appeal— as, the 
actual offer of bail, so as to enable or entitle the 
justice to take the recognizance. It is not 
enough that he intended to do this, and sup. 
poeed he had done it, and .had actually paid the 
fees for the appeal. Hanrriman v. Sw^ft^ 31 Vt. 
385. 

27. The complainant had notice of a jus- 
tice suit against him and sent an agent to ap- 
pear for him> and to take an appeal. After 
judgment, the agent paid the fees for an appeal, 
but, not understanding the law, neglected to en- 
ter bail, and thereupon execution issued on tlie 
judgment. Held, that an ofudita qtterela could 
not be sustained. Finney v. HiU, 18 Vt. 265. 

28. An audita qtterela will not lie to set 
aside a justice judgment, on the ground that 
an appeal was improperly denied, where the 
case was not on the face of the writ nor by the 
plaintifTs claim appealable, bu t was made such 
by the character of the defense set up. The 
remedy in such case is by petition. (G. 8. c. 
38, 8, 7). Bradish v. Redteay, 85 Vt. 424. 

29. Chancery. An audita querela does 
not lie to set aside an execution issued on a 
decree in chancery. Oar field v. University of 
Vt.y 10 Vt. 536 ;- or issued in violation of an 
injunction of chancery. The remedy is only 
by application to the court of chancery. Porter 
▼. Vaughn, 24 Vt. 211. 

30. Other remedy. It is no objection to 
an audita qtterela that there is another remedy, 
— SB habeM corpus. Cometoek v. Gr<mU 17 Vt. 
512 ; or petition, under the statute, to set aside 
a justice judgment rendered without due 
notice. Alexander v. Abbott, 21 Vt. 4T6 ; or 
for refusing an appeal. Eduards v. Osgood, 88 
Vt.224. 

31 Limitations. An audita querela is not 
within the statute of limitations applicable to a 
writ of error, or certiorari. Stone v. Seaver, 5 
Vt. 549. 

32. Error of court. It does not lie where 
the matter of complaint is a proper subject for 
a writ of error, though the statute has prohibit- 
ed a writ of error in such case. TutUe y.Bur- 
Unfftcn, Brayt. 27. Weeks v. Laurence, 1 Vt. 
438. Dodge v. HubbeU, 1 Vt. 491. Potter v. 
Hodges, 18 Vt. 289. TitUemore v. WainwHght, 
16 Vt. 178. BeUy v. Brown, 16 Vt. 669. Spear 
▼. FUnt, 17 Vt. 497. CUmgh v. Broun, 88 Vt. 
181. 

33. Nor for any error of the justice in the 
judgment rendered ;— as for assessing damages 
or excessive damages, on default, upon insuf- 
ficient evidence, or without' evidence. Dodge 
V. HubbeU, 1 Vt. 491. Foster v. SUams, 8 Vt. 
822. BeUy v. Brotcn, 16 Vt. 669 ;— or for re- 
fusing a trial by jury. Spear v. Flint, 17 Vt. 
497;— or for an error in the taxation of costs, 
tbou^ aUeged to have been induced by the 
fraudulent practices of the other party. Har- 



Hman v. Swift, 81 Vt. 886 (G. y. c. 81, s. 28), 
overruling Weed v. Nutting, Brayt. 28. 

34. Nor, where the cause allegpd is the fraud 
or misconduct of the justice. TitUemore v. 
WainwHg?U, 16 Vt. 178. 

35. An audita querela to set aside an execu- 
tion alleged an error in the judgment, render- 
ed by nil dicitn-ihaX the complainant had made 
payments on the note sued, which the defendant 
had not indorsed, and that he caused the 
damages to be made up without deducting such 
payments ; also that the clerk in computing the 
interest had made an error, making the judg- 
ment and execution larger than was due. On 
demurrer, held insufficient,— that it presented 
no ground of complaint whatever, and was 
brought obviously for delay. Perry v. Ward, 
18 Vt. 120. 

36. A verdict in an action of book account 
before a justice, that the defendant did not Us- 
mme and promise, was accepted by the court, 
and judgment thereon. Held, not a ground 
for an a/udita querela. Mason v. Laurence, 2 
Vt. 660. 

37. An audita querela does not lie to set aside 
a judgment rendered in favor of one as ad- 
ministrator, on the ground that he was not in 
fact administrator but pleaded profert of letters 
as such. Barrett v. T aughan, 6 Vt. 248. 

38. Discretion. It is discretionary with 
a justice whether to recall and vacate a judg- 
ment rendered by default, and to revive the ac- 
tion, when applied for within two hours from 
the rendition of the judgment ; and an audita 
querela does not lie for his refusal so to do, al- 
though he based his decision upon his want of 
power. Potter v. Hodgett, 18 Vt. 289. 

39. Where a question, whether of law or 
fact, is properly within the cognizance of a jus- 
tice of the peace, his decision cannot be revised 
by audita querela^as, for refusing to allow an 
appearance for the defendant by one professing 
to have authority. Sutton v. Tyrrell, 10 Vt. 
87. School District v. Hood, 27 Vt. 214. Or 
for refusing to continue a cause. Amidon v. 
Aiken, 28 Vt. 440. 

40. Informality. For mere matters of 
error and informality, audita querela will not 
ordinarily be sustained, unless the complainant 
bas thereby been subjected to some injustice 
or wrong. Aldrich v. Bonett, 88 Vt. 204. 

41. Extent. Where a justice, under the 
statute, issued an extent against a collector of 
taxes for delinquency, after due notice, appear- 
ance and hearing, the matter being within his 
jurisdiction ;—//<>/(?, that the decision of the 
justice could not be reversed on audita querela, 
QHmold V. Rutland, 23 Vt. 824. 

42. Audita querela does not lie to set aside 
an extent for the collection of taxes— as an ex- 
tent for State taxes from the Treasurer of the 
State — the same not being a judgment or re- 



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AUDITA QUERELA, IIL 



cord of a court. PouUney v. Trfwurer, 25 
Vt. 168. 

43. Oomplainaat in fkult. Where a par- 
ty has had a legal opportunity of defense, or 
the injury of which he complains is to be at- 
tributed to his own neglect, he cannot be re- 
lieved by an audita qu/rela. Staniford v. 
Bofrry, 1 Alk. 821. 8 Vt. 828. 

44. On a justice writ dated in December 
1840, and made returnable, by mistake, Jan'y. 
9, 1840, the justice rendered judgment by de- 
fault Jan'y. 9, 1841. Held, that such judgment 
was not void, and could not be set aside on 
audita quereki;— the complainant not having 
been misled by the obvious error in the writ. 
Betty V. Brotrn, 16 Vt. 669. 

45. No wrong done. A sued B before a 
justice and B gave liim to understand that he 
should appear and defend. On the return day 
A appeared, but was unable to remain for a 
trial, and, supposing B would appear, in good 
faith applied for and procured a continuance, 
and on the continuance day took judgment by 
default. B did not appear on either day, and 
afterwards brought an andita querela to set 
aside the judgment, claiming that the proceed- 
ings on the return day worked a discontinuance. 
Held, that as no wrong was intended and no in- 
jury occasioned, the complaint should be dismiss- 
ed. Aldrieh v. Banett, 88 Vt. 202,— qualifying 
and limiting Paddleford v. Baner^ft, 22 Vt. 
529. 

46. Although in the copy left with the de- 
fendant by the officer serving a writ, the signa- 
ture of the authority issuing it be omitted, this 
may have effect as notice of the suit; and 
where the defendant had actual notice of the 
time and place of trial, and judgment was ren- 
dered against him without appearance;— -ffifW, 
that it could not be set aside on audita querela. 
CoUitM V. Merriam, 81 Vt. 622. 

47. Officer's retnm. Audita querela can- 
not be sustained to set aside a judgment for 
want of notice, where the return of the officer 
serving the writ shows notice. The return is 
conclusive. Hawkn v. Baldwin, Brayt. 85. 
Witlterell v. Oom, 26 Vt. 748. 

48. Attorney. It does not lie to set aside 
a judgment on the ground that it was com- 
menced by an attorney in the name of the com- 
plainant and pursued to judgment, without 
the complainant^s knowledge. Sheldon v. Kel- 
aeys, Brayt. 26. 

49. Nor, upon the allegation of want of due 
service of the writ and want of notice, where 
there was an appearance entered for the party 
by an attorney of the court. This appearing 
on the record, the fact of the appearance can- 
not be traversed in this action. Spaulding v. 
Suift, 18 Vt. 214. AbbaU v. Duttan, 44 Vt. 
546. 

50. By Redfield, J. Doubtless, in some 



way, the party affected by a judgment col- 
lusively obtained by the fraudulent instrumen- 
tality of an attorney, whether the attorney act. 
ed willingly, or as a dupe, may obtain relief. 
But we think it should be by application to the 
court upon petition, or motion, and possibly by 
writ of error for error in fact, rather than by 
audita querela. Tb. 

III. Natubi op Writ, Parties, Ac. 

51. A JndicUl writ. A writ of audita 
querela is a judicial writ to the court liavingthe 
record. It must issue from the supreme cour t, 
if the record is there. Skumicay v. SargeatU, 27 
Vt. 442. {Phelpn V. Slade, 18 Vt. 195. Oom- 
ntoek V. Grout, 17 Vt. 512.) 

52. The. county court has no jiuisdiction to 
issue such writ to vacate a judgment of the 
supreme court. Warner v. Orane, 16 Vt. 79. 

53. Parties. Like 9cire faeia», error, cer- 
tiorari, and all other judicial writs, it must be 
between all the parties to the former proceed- 
ing, and no others. Oleanon v. Peek, 12 Vt. 56. 

54. AH the parties to a judgment or execu- 
tion sought to be set aside by audita querela, 
must be made parties to the writ. Herriek v. 
Orange Co. Bank, 27 Vt. 584. Titlemore v. 
Wainright, 16 Vt. 178. Btarbird v. Moore, 21 
Vt. 529. 

55. Judgment by default against two, with- 
out notice to either ;— this judgment sued, and 
served upon one, and a new judgment against 
him ; afterwards the other was sued upon the 
original judgment. On audita querela to set 
aside the original judgment ;—Held, that it was 
properly brought in the name of lK>th. God- 
frey V. Dotcner, 47 Vt. 599. 

56. An audita querela to set aside an execu- 
tion issued upon a judgment in favor of two, 
may be abated if served upon only one of the 
two ; but a judgment rendered against the one 
on whom service was made, setting aside the 
execution but leaving the original judgment in 
full force, was held correct. Clark v. Freeman, 
5Vt. 122. 

57. Oase of a tnistee. An audita querela 
will not lie in favor of the principal debtor and 
the trustee jointly, to vacate the several judg- 
ments rendered against them respectively in a 
trustee action. Johnson v. Plimpton, 80 Vt. 
420. 

58. Where an audita quereia was brought 
to set aside a judgment against the complain- 
ant, and a trustee ;—Held, that the trustee had 
no such interest in the judgment, as that he 
could object to a discharge and discontinuance 
of the audita by the complainant. Braynardt 
V. Burpee, 27 Vt. 616. 

59. —of snlweqaent attaching creditora. 
Subsequent attaching creditors cannot use the 
name of the debtor, against his will, in bringing 



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AUDITA [QUERELA, HI.— AUTHORITY. 



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and sustaining an audita querela to vacate a 
Judgment and execution against him in favor 
of the first attaching creditor, either on the 
ground that such judgment was rendered upon 
default and without notice, and such execution 
was issued without giving the recognizance re- 
quired by the statute ; nor on the ground that 
such judgment was fraudulent as to creditors ; 
nor on the ground that the first attaching cred- 
itor agreed with the others to share with them 
in the proceeds of his execution, and has vio- 
lated such agreement. The debtor in such case 
was allowed to control the audita querela 
brought in his name, and to enter a non-suit 
against the protest of such subsequent attach- 
ing creditors. Estex Mining Co, v. BuUard, 
43 Vt. 238. 

60. Service. A writ of audita querela 
against a corporation must be served like any 
other writ against a corporation. Olark v. Na- 
tional HydrauUc Co., 12 Vt. 486. 

61. Deatliof defendant. Where the ob- 
ject of an audita querela is to recover damages, 
and the defendant dies pending the suit and 
oommiasioners are appointed, tlie suit should 
be discontinued, and the claim be presented to 
the c<»nmi88ioner8. Warner v. Crane, 16 Vt. 
79. 

62. — of complainant. An audita querela, 
whose basis is altogether personal, not going to 
the foundation of the judgment, dies with the 
complainant, and the recognizance falls with 
it. In such case, the administrator cannot be 
cited in to prosecute it. Conn. <fc Pom. R. R, 
Co. V. BUee, 24 Vt. 411. 

63. Recognizance. An action was held to 
lie on a recognizance taken by a judge on issu- 
ing an audita querela, though the recognizance 
had not been returned into court. Anon, Brayt. 
214. 

64. Where two judges of the county court 
were authorized to allow a writ of audita querela, 
taking surety ',—ffeld, that such writ allowed 
by the two, but the recognizance taken by only 
one, should abate. Hieeock v. Hieeock, 1 D. 
Chip. 138. 

65. No other recognizance for costs was re 
quired by the statute of 1822, than was required 
by sec. 11 of the judiciary act. Brown v. Staey, 
9Vt."ll8. 

66. Under the judiciary act of 1797, a min- 
ute of a recognizance upon a writ of audita 
querela, "to insure costs of prosecution in due 
form of law," was held sufficient as h minute; 
and quefre, whether the want of a minute is any 
ground of abatement. Fottter v. Carpenter, 11 
Vt. 589. But see 8iseo v. HurUmrt, 17 Vt. 
118. 

67. The minute of recognizance signed by a 
judge allowing the writ, is matter of record, and 
cannot be contradicted by parol. Hinman v. 
Smft, 18 Vt. 815. 



68. An (mdita querela will not be dismissed, 
because of the neglect of the judge signing the 
writ and granting the mpergedeae, to take 
a copy of the writ and recognizance and to 
file the same in the oflSce of the county clerk, 
(G. S. c. 42, s. 8.) Kidder v. Hadle^f, 2flr Vt. 
544. 

69. Affidavit. It is not necessary that the 
aflldavit to the truth of an audita querela shonld 
be annexed to, or become part of, the process. 
The certificate of the judge allowing the writ, 
that the facts set forth in it were sworn to, and 
the production of the affidavit on trial of a mo- 
tion to dismiss, were held sufficient. Hinman 
V. Swift, 18 Vt. 315. 

70. Supersedeas. A writ of audita qu^erela, 
with the certificate of the judge signing it, that 
it ought to operate as a superwdeas, will not' so 
operate, if, in the recognizance taken by the 
judge, a material condition required by the 
statute be omitted. Perrp v. Ward, 20 Vt. 92. 
State Treamrer v. Welle, 27 Vt. 276. 

71. Where an execution is superseded on 
a/udita querela by the judge of the county court 
allowing the writ, the supersedeas, without 
some order professing to dissolve it, continues 
in force, though the suit should be removed 
into the supreme court on exceptions and dur- 
ing its pendency there. Perry v. Ward. 

72. In an audita querela, operating bb ti su- 
persedeas, in behalf of a party standing com- 
mitted to jail, where the recognizance was con- 
ditioned for the redelivery of thfe execution 
debtor to the custody of the officer,, and the 
payment of all intervening damages, and, in 
default thereof, the payment of the debt, dam- 
ages and costs ',—Held, that on f allium to rede- 
liver the debtor the recognizor was liable for 
the whole debt, as well as for intervening dam- 
ages and costs; — that the recommitment in 
such case would be upon the original execution, 
and it was no excuse to the recognizor that an 
aUas execution had not been issued to commit 
anew. HuM)eU v. Dodge, 4 Vt. 56. 



AUTHORITY. 

1. Joint — The rule. Where several are 
associated in a public trust, a majority may act 
and bind their principals ; but. in the case of a 
private trust or agency, the concurrence of all 
is necessary. IjOW v. Perkins, 10 Vt. 532. 

2. Where an act granting a lottery required 
three managers and provided a mode of filling 
all vacancies ; — Held, that one alone had no 
power as manager. May v. Brownell, 3 Vt. 
463. Rogers v. Hough, 4 Vt. 172. 

3. Where lands were conveyed by will to 
three persons in fee, and to the survivors or 
survivor of them, in trust to sell and convey 



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AUTHORITY.— BAIL ON MESNE PROCESS. 



and pay debts and legacies, and the same par- 
ties were named executors ;—Held, ihfti in order 
to pass the title, all living, although some had 
not accepted the executorship, must join in the 
conveyance, and that the deed of one alone 
conveyed no title. Williams v. Mattoekn^ 3 Vt. 
189. 10 Vt. 571. 

4. If an authority, in a matter of mere 
private concern, be confided to more than one 
agent, it is requisite that all should join in the 
execution of the power, and they are jointly 
responsible for each other; but in matters of 
public trust, or of power conferred for public 
purposes, if all meet, the act of the majority 
will bind. Hodges v. Thatcher;^ Vt. 456. 

5. The case of commissioners appointed by 
the probate court falls under the last branch. 
76^— also auditors. NeiteU v. Keith, 11 Vt. 
214. Thomps&n v. Arms, 5 Vt. 546. 

6. The case of commissioners appointed by 
a town to make a sul)scription for stock in a 
railroad under an act of the legislature, falls 
under the first branch, as a matter of private 
appointment. DanmUe v. M&ntpelier d St. J, 
n, Co., 43 Vt. 144. 

7. Revocation of authority. The plain- 
tiff verbally requested the defendant, his debt- 
or, to pay a certain sum to D, the plaintiff's 
creditor, which the defendant verbally promised 
to do, and the plaintiff afterwards requested D 
to call upon the defendant for the money. D did 
so, when the defendant declined to pay. The 
plaintiff then brought this suit on the original 
indebtedness, after which the defendant paid 
D the sum ordered. Held, that the bringing of 
the suit was an implied revocation of the parol 
direction, or order, and the payment was without 
authority of the plaintiff and could not be allowed 



to the defendant. Sargent v. Seward, 81 Vt. 609. 

8. — by deatli of principal. The death of 
the principal instantly terminates the power of 
the agent, so that all subsequent dealings with 
the agent are void and of no effect, though the 
parties were ignorant of such death. Dams v. 
WiTidsor Satfngs Bank, 46 Vt. 788. 

9. Where a person had given a letter of 
credit authorizing another to ** value " on him 
to a certain amount within a limited time, 
agreeing to accept the drafts drawn and to pay 
them if not paid by the drawee at maturity, 
the death of such person was held to operate, 
per se, as a revocation of the authority thereafter 
to draw upon him, although the time specified 
in the letter hiul not then expired, and altliough 
the person for whose security the letter was 
given had no notice of such death. Michigan 
State Bank v. Ijeavenworthj 28 Vt. 209. 

10. A bill of exchange, with date and time 
of payment blank, was indorsed by L to R. 
Afterwards, and after L's death, R presented it 
to the plaintiff for discount, who, having no 
suspicion of L's death, and relying upon the 
indorsement, at the request of R filled the 
blanks in the bill, dating it as of that date, and 
discounted it in the ordinary course of business, 
paying the avails to R. In an action against 
L*8 estate to recover the amount of the bill ; — 
Held, that upon the face of the bill L was an* 
accommodation indorser ; that, as such, the au- 
thority given to fill up the bill and pass it was 
not coupled with an interest and was revocable, 
and that the death of L operated per se to re- 
voke the agency and authority of R, and that 
the estate of L was not liable upon the bill. 
Mich. Ins. Co. v. Leavenworth, 30 Vt. 11. 

See AoBNT. 



B. 



BAIL ON MESNE PROCESS. 



1 . How to charge bail. In order to charge 
bail upon a writ, the execution must be return- 
ed into the office from which it issued, with a 
non est inventus return thereon, within the life 
of the execution. Turner v. Lowry, 2 Aik. 72, 
overruling Stevens v. Adams, Brayt. 29. 

2. A return of non est made upon ah execu- 
tion after it has expired, but dated back vnthin 
the life of the execution, is a false return, for 
which the officer is liable to the bail who may 
have suffered damage thereby. Cooper v. In- 
galls, 5 Vt. 508. 

3. A return of an execution, non est, made 
at any time within the sixty days, is prima 
facie sufficient to charge bail upon the writ; 



but if made prematurely, and to the injury of 
the bail, the effect of the return may be avoid- 
ed by plea. Howe v. Hansom, 1 Vt. 276. 12 
Vt. 197. 

4. To hold bail on mesne process, where the 
debtor is arrested in a county other than that of 
his residence, the return of non est upon the 
execution must be made by an officer of the 
county where the debtor resides. Fuller v. 
Howard, 6 Vt. 561. (Collamer, J., dissenting.) 

5. The requirement of G. 8. c. 33, s. 63, 
that a writ of sdre /ados against bail on mesne 
process be brought within one year after the 
judgment against the principal, is in the nature 
of a condition, in order to c reate and establish a 
claim against the bail, rather than a statute of 
limitation upon the creditor's remedy to enforce 



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a rightf or duty, already due and fixed upon the 
baU. Strong v. EdgerUm, 22 Vt. 249. 

6. Where such writ was taken out within 
the year, but was made returnable before a jus- 
tice more than sixty days after the expiration 
of the year, so that it could not be legally 
served within the year; — Held, that this was 
not a bringing of the ttrit within the year, and 
that the bail was discharged. lb. 

7. Pleading. A declaration in scire facitu 
against bail, upon a writ in an action upon 
contract, must aver that the execution issued 
against the body of the principal. Blood v. 
OrandaU, 28 Vt. 896. Dams v. Dorr, 80 Vt. 
97. 

8. Officer may become bail. An ofHjcer 
serving mesne process may himself become bail 
for the debtor, by indorsing the writ as such ; 
and, in an action against him as such bail, he is 
estopped from averring that no bail was in legal 
effect taken by him. Merriam v. Armstrong, 
22 Vt. 26. 

9. Action for neglect to take bail. In 
an action for the neglect of an officer to take 
bail upon a writ, it seems not necessary that 
there should be a formal return, if any, of Tum 
est inventus upon the execution. Orois v. Isle 
La MoU, 12 Vt. 195. 18 Vt. 456. 

10. —for taking insufficient bail. In an 
'action against a sheriff for taking insufficient 
bail on mesne process, it is no defense that the 
bail was apparently good when taken. He must 
make it appear that the bail was ** amply suffl- 
cient," — that he possessed a substantial respons- 
ibility in point of property, and such as would 
probably continue. Hazard v. Blade, 1 D. Chip. 
199. Harrington v. Bogue, 15 Vt. 179. Bank 
ofMiddlebury v. Rutland, 88 Vt. 427. 

11. Privity of bail. Persons standing as 
bail are so far privies to a judgment against 
their principal, that they cannot avoid it for any 
irregularity in the proceedings upon which it 
was obtained. Stedman v. Ingraham, 22 Vt. 
846. 27 Vt. 218. Parkkurst v. Sumner, 28 
Vt. 588. Chamberlain v. Godfrey, 86. Vt. 
880. 

12. Belease. Before the Statute of 1818 ; 
—Held, that the death of the principal after a 
/etum of nan est in^)entus did not release the 
bail on the back of the writ. Boardman v. 
Steams, Brayt. 85. 

13. Held, that the bail was excused from 
surrendering his principal where the principal 
was confined in the State's prison of another 
State, before the bail ha^ become fixed by a 
non est return upon the execution. Hall v. 
Steams, 18 Vt. 85. 

14. Surrender of principal. After judg- 
ment rendered by a justice, the application by 
the defendant to be admitted to the poor debt- 
or's oath was continued to a future day. Held, 
that the surrender of the principal by his bail 



on such adjourned day was seasonably made. 
Chase V. HoUon, 11 Vt. 847. 

15. Bail can only surrender his principal 
into court, i. e. while the court is in session. 
It cannot be done after the adjournment of a 
justice court, although within the two hours of 
the time set for trial. Converse v. Washburn, 
48 Vt. 129. 

16. The surrender of the principal by his 
bail should be pleaded as matter of discharge, 
and not of performance ; but if pleaded as per- 
formance, this is but a defect of form, and, upon 
general demurrer, the court will give the facts 
pleaded their legal operation as a diiy^harge of 
the recognizance. Cray v. Fulsome, 7 Vt. 
452. 

17. Belease on motion. Where one privi- 
leged from arrest is arrested and gives bail, it is 
within the general discretion of the court where 
the suit against either the principal or the bail 
is pending, to enter an exoneretur on the bail 
bond, on motion of either the principal or the 
bail. Where this is done, it is conclusive upon 
the parties and all interested. WasJibum v. 
Phelps, 24 Vt. 506. 

18. Defense to scire fiu^ias. Under Ver- 
mont practice, wherever bail are entitled to be 
discharged in the original action, the same facts 
may be pleaded as a bar to a soire facias. Van- 
Ness V. FmrchM, 1 D. Chip. 158. Mattocks v. 
Juds(m, 9 Vt. 848. Aikm v. Biehardson, 15 
Vt. 500. 17 Vt. 865. 20 Vt. 610. Belknap v. 
Davis, 21 Vt. 409. McFarland v. Wilbur, 85 
Vt. 842. 

19. Where the surrender of the principal 
could not be legally followed by further pro- 
ceedings against his body, his bail may be re- 
leased, and are not liable upon a sdre facias — 
as, where no execution could legally issue 
against the body by reason of a defect in the 
original affidavit. Aiken v. Biehardson, 15 Vt. 
500. 

20. So, where the principal after the origl- 
nal arrest has been discharged in bankruptcy. 
Belknap v. Davis, 21 Vt. 409. See Comstoek 
V. Grout, 17 Vt. 512. 

21. So, where the principal by enlisting as 
a soldier had, by act of the legislature, (1861 
No. 8), become privileged from arrest. Me- 
Farland v. Wilbur, 85 Vt. 842. 

22. In scire faoias against bail on mesne 
process, a plea averred, that in consideration 
that the defendants would cause their principal 
to attend at the trial, the plaintiff promised that 
he would release them as bail, and that they 
did cause him so to attend;— Plea held good 
on general demurrer. H>, 



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BAILMENT, I. 



BAILMEKT. 

I. In Gknebal. 

II. Paktiouij^k Bailments, and Nkglioknce 
Thbkbin. 

I. Ik Genbbal. 

1. Am diBtingniBlied from a sale. Where 
property, as cattle, sheep &c., are left to anoth- 
er under a contract that he should return the 
same or others of eqwU value y or shall return 
the same or pay a certain sum in lieu thereof, 
such alternative is not inconsistent with the 
continued ownership of the bailor, nor neces- 
sarily converts the bailment into a contract of 
sale, or bailment with a power of sale. Downer 
V. Rawell, 22 Vt. 847. Smith v. Niles, 20 Vt. 
815. Grant v. King, 14 Vt. 367. 

2. The plaintiff delivered certain sheep to 
the defendant for which he executed his receipt 
agreeing to keep the sheep, or cause them to be 
kept, for *'the full term of three years, and re- 
turn the same, or others in their place as good 
as they are, at the expiration of the three years." 
Held, that this was not a sale, nor bailment 
with power of sale ; and that on the defendant's 
neglect on demand at the end of the term to re- 
turn the sheep, he was liable in trover. Downer 
V. HotteU. 

3. The plaintiff delivered to the defendant 
a quantity of palm leaf, for which the defen- 
dant gave a written receipt and agreement to 
get it worked into hat«, or return it when called 
for, and, if used, to account for it at specified 
prices. Jfeld, as to the leaf not worked into 
hats, that this was not a sale, but a bailment, 
and that the defendant was liable for lack of 
ordinary care in the preservation of the leaf. 
Brown v. Hitchcock, 28 Vt. 452. 

4. Power of sale. A bailment of property 
with a power of sale, is a personal trust which 
the bailee cannot delegate. Hnnt v. Douglas, 
22 Vt. 128. 

5. Where one bails property to another to 
sell, or to use with a power of sale, this does 
not authorize an exchange ; but if the bailee in 
such case makes an exchange, the property pro- 
cured by the exchange does not, as matter of 
law, become the bailee's. This depends upon 
whether the bailor, within a reasonable time, 
adopts or repudiates the exchange, as to which 
he has an option. The bringing of an action for 
the original property would be a repudiation ; 
while a suit for the property got by the ex- 
change would be a ratification — ordinarily. 
Strong v. Adams, 30 Vt. 221. -Hunt v. Doug- 
lass. 

6. Misappropriation— Oonversion. If 
the bailee of an article for use sells it without 
authority, the owner may recapture it from the 
possession of the purchaser,— not committing 



a breach of the peace. Heacock v. Walker, 1 
Tyl. 888. 

7. Any misuse or abuse of the thing bailed 
or leased, in the particular use for which the 
bailment was made, will not enable the general 
owner to maintain trespass or trover against 
the bailee. But if the thing be misappropriated 
or put to a different use from that for which it 
was bailed, by consent of the bailee or lessee — 
as where it is sold — such act determines tp«o 
facto his right of possession, and revives the 
right of the bailor to immediate possession, 
and he may maintain trespass, trover or reple- 
vin. Swift V. Moseley, 10 Vt. 208. Briggs 
V. Oaks, 26 Vt. 188. BHggs v. BenneU, 26 
Vt. 146. Oray v. Stextens, 28 Vt. 1. 

8. In case of a conditional sale, without 
power of sale given, the very act of sale by the 
conditional vendee terminates the bailment and 
gives the conditional vendor the right of im- 
mediate possession — although part of the pur^ 
chase price has been paid — and the right to re- 
tain the property until the balance is paid. 
Dunham v. /><?, 24 Vt. 482. 

9. The plaintiff let to the defendant a car- 
riage suitable to be drawn by two horses, to be 
used in the village of B, and not to be run out 
of that town. The defendant, without the 
plaintiff's knowledge, sent the carriage, with 
two pairs of horses attached and heavily laden, 
twelve miles out of the town, and the carriage 
was injured in such use. Heldy that the defend- 
ant was liable in trover for the value of the car- 
riage ; and that the offer of the defendant, even 
after he had got the carriage repaired, to return 
it to the plaintiff, did not go in mitigation of 
damages; — that the defendant could not compel 
him to take it back. Hart v. Skinner, 16 Vt. 
138. 

10. Use as a conversion. As to the right 
of a bailee to use the property bailed, no general 
rule of universal application can be laid down, 
but, generally, cases must be governed by their 
own particular circumstances, in the absence of 
any contract on the subject of the use. Peek, 
J., in Alvord v. Daijenport, 48 Vt. 30. 

11. A horse and wagon were left by P with 
the defendant, to be kept at P's charges for 
eight or ten days, when he would call for them* 
P left and never returned, nor was heard of after- 
wards. The defendant became satisfied, after 
a time, that P did not own the property, but 
had abandoned it and was acting in bad faith 
towards the owner. The defendant did not 
know who or where the owner was. He con- 
tinued to keep the property for about five years, 
and after a time used it in his business. Held, 
that, under the circumstances, the defendant 
had a right to use the property moderately and 
prudently, to the extent of compensating him 
for his charges; and that he was not answerable 
to the owner therefor as for a conversion. Hf, 



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BAILMENT, 11. 



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12. In an action on the case, the declara- 
tion alleged the bailment of the plaintifTs mare 
to the defendant to be kept through the winter, 
and that the defendant, without consent of the 
plaintiff, rode, drove and used the mare, and 
bj such use the mare was greatly injured and 
miscarried her foal; but did not set up any 
contract or breach of contract as to the use of 
the mare ;—Held, that the plaintiff had by his 
declaration tied himself up to a recovery upon 
the ground of an injury to the mare by the use 
of her, and that, without proof of such injury, 
be could not recover. Oraoea v. 8ef>erens^ 40 
Vt.686. 

13. Joint conversipn. The wrongful sale 
of property by a bailee is a conversion in both 
the seller and the purchaser— a joint conversion 
— ^for which the bailor may maintain trover 
against both jointly. Buekmcuter v. Mower^ 
21 Vt. 204 Grant v. King, 14 Vt. 367. 

14. The owner of cattle leased them, with a 
a farm, for four years, under an agreement that 
at the expiration of the four years the lessee 
might return the cattle, or pay a stipulated 
price [an under price] for them. Before the 
expiration of the term the lessee sold the cattle 
from the farm, and the lessor, within the term, 
brought trover therefor against both the lessee 
and the purchaser. At the end of the term, the 
lessee tendered the stipulated price. Held, that 
by such sale the right of possession was restored 
to the plaintiff, and that the lessee forfeited his 
own accruing rights under the contract ; and 
tiiat the plaintiff was entitled to recover, as 
against both defendants, the value of the cattle 
at the time of the sale, and interest thereon. 
Orant v. King, 

n. Pahticulab Bailments, and Neoliobnoe 
Thbbein. 

15. ICeasnre of diligence— In general. 
The true measure of liability in all cases of 
bailment [as, of an officer in case of property 
attached] is, that the bailee is bound to that 
degree of diligence which the manner and the 
nature of his employment make it reasonable to 
expect of him, as a prudent and careful man. 
Bedfield, C. J., in Briggs v. Taylor, 28 Vt. 180 ; 
and see FoUam v. Underhill, 36 Vt. 591. 

16. Mntnal benefit. Where the defendant 
injured the plaintiff's sulky while driving it 
for the mutual gratification and pleasure of 
both parties, as a means of recreation and 
amusement; — Held, that the defendant's lia- 
bility was to be measured by the rule of com- 
mon or ordinary care — common prudence— and 
he was liable for ordinary neglects Carpenter 
V. Branoh, 18 Vt. 161. 

17. Deposit. Money deposited with an- 
other for safe keeping, and for the sole benefit 
of the bailor, without any special imdertaking 



on the part of the bailee, and without compen- 
sation offered, asked or expected for keeping 
the money, constitutes a simple deporitum or 
naked deposit. In a bailment of this nature, 
the bailee is bound to exercise only slight dili- 
gence, and is responsible only for gross neglect. 
Spooner v. Mattoon, 40 Vt. 800. 

18. In such case, the county court, on a 
trial by the court, found that the defendant, the 
bailee, ** was not only lacking in the exercise of 
ordinary care, but was chargeable with actual 
negligence," but without finding it to have been 
gro98 negligence ; and having, on such finding, 
rendered judgment against the defendant ; — 
Held erroneous, and the judgment was revers- 
ed. (Different degrees of care and of negli- 
gence, as legal rules, recognized.) lb. 

19. On a review of facts and evidence re- 
ported ; — Held, that the loss of money held by 
a bailee as a naked deposit, and lost through a 
brief forgetfulness in the keeping of the money 
on his way to return it, is not necessarily gross 
negligence, since this is consistent ¥rith an hon- 
est intention and effort to return the money. Ih, 

20. A mere depositary of money is not lia- 
ble to an action for the money, unless his rela- 
tion has been changed to that of a debtor, by a 
refusal to pay over the money upon proper re- 
quest, or by a wrongful appropriation of it. 
Jackman v. Partridge, 21 Vt. 558. 

21. Pledge. The general property in a 
chattel pledged remains in the pledgeor, and 
only a special property passes to the pledgee. 
It is essential to the validity of a pledge, that 
it be accompanied by delivery of possession ; 
and if allowed to go back into the possession of 
the pledgeor, the special property created by the 
bailment is determined and gone. Fletcher v. 
Howard, 2 Aik. 115. 

22. By the mortgage of a chattel the general 
property passes, whereas by a pledge only a 
special property passes. Possession by the 
pledgee is essential to a pledge, whereas, in 
case of a mortgage, the mortgagor may, as be- 
tween the parties, retain possession. The same 
terms which create a pledge, if possession 
passes, will generally be held to create a mort- 
gage, if possession is retained. Connor v. Car- 
penter, 28 Vt. 237, and see Wood v. Dudley, 8 
Vt. 430. Atwater v. Moioer, 10 Vt. 75. Coty 
V. Bamee, 20 Vt. 78. BlodgeU v. BlodgeU, 48 
Vt. 32. 

23. A pledgee may convey such title as he 
has in the pledge. Bullard v. Billings, 2 Vt. 
309. 

24. A pledgeor has the right of redeeming 
the pledge at any time before a foreclosure or 
sale ; and he is not a trespasser by peaceably 
taking possession of the pledge after a tender 
of the amount due, although after the day fixed 
for payment. Taggart v. Packard, 39 Vt. 628. 

25. The holder of a promissory note, rights 



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fully holding the same as collateral security, is 
entitled to retain the note until payment of, or 
offer to pay, the full amount for which it is 
held as security. Benoir v. Paquin^ 40 Vt. 199. 

26. A, the owner of a mowing-machine, by 
his writing certified that he ** pledged, pawned 
and delivered " the same to B as security for 
the payment of his note to B. The writing 
contained a stipulation, that A ' ^ has the right 
to sell said machine at any time, by paying B 
the said note and interest." A, without pay- 
ing the note, and against the prohibition of B, 
sold the machine. Held, that A had the right 
of selling the machine only by paying the debt 
secured by the pledge, and that he was liable 
to B in trover for such sale. PrescoU v. Pres- 
ooU, 41 Vt. 181. 

27. Where W turned out or pledged goods 
to B, with the understanding that they should 
be sold through a named factor, and that B 
should credit W the proceeds of the sale de- 
ducting the factor's commissions, and B com- 
mitted the goods to the factor to be sold, taking 
a receipt therefor to himself; — Held^ in a suit 
by B against W, that it was not a sufficient ac- 
counting for B to credit W the proceeds of the 
sale as reported by the factor, where the 
amount so reported was much less than the 
market price of the goods ; that, the factor be- 
ing liable to that extent, B was the proper' 
party to call him to a just accounting, in case 
W should not assume to do so himself, and 
where B had not, on reasonable notice to W, 
abandoned in his behalf any further claim on 
the factor. Bigehw v. Walker, 24 Vt. 149. 

28. Where one is liable to account for prop- 
erty rightfully taken and disposed of, he is lia- 
ble only for the amount actually realized, where 
he has acted with good faith and common pru- 
dence and due diligence; and where he re- 
ceives, as collateral security, the property in 
such an unfinished state that chancery would 
have ordered it finished by a receiver, and he 
finishes it with his own means, he is entitled in 
equity to have such expenses allowed him in 
accounting for the property ; and the right of 
an attaching creditor of the general owner is 
subordinate to such equity. Rowan v. Btoite 
Bank, 46 Vt. 160. 

29. Livery stable keeper. Livery stable 
keepers, and others who let horses and carriages 
for hire, are answerable to the hirer for an in- 
jury which happens by reason of a defect in 
the carriage, which might have been discovered 
by the most careful and thorough examination ; 
but not for an injury which happens by reason 
of a hidden defect, which could not, upon such 
an examination, have been discovered. Hadley 
V. Crou, 84 Vt. 686. 

30. Warehouseman. Although a wharf- 
inger or warehouseman receiving goods to keep, 
cannot, ordinarily, in a suit against him, dis- 



pute the title of his bailor, yet if the bailor 
claims the goods by an illegal title, and they 
are taken out of the custody and care of such 
bailee by authority of law, the latter may show 
this in excuse for not delivering them. Bur- 
Urn V. WiVdnwn, 18 Vt. 186. 

31. Wharfinger. A delivery of goods on 
a wharf is not necessarily a delivery to the 
wharfinger. BUn v. Mayo, 10 Vt. 56. 



BANK. 

1. Directors. If a particular line of pro- 
cedure has been resolved upon, or is necessarily 
incident to the business of a bank, it is not es- 
sential that every expenditure of money, or en- 
gagement of service, or other item within the 
line so marked out, should receive the consider- 
ation of all the directors outside a meeting, or 
that a meeting of the board should act upon it ; 
nor does all the executive business pertaining 
to a bank come solely within the provhice of 
the cashier. So held, where the contract for 
service to a bank having five directors was con- 
cluded by two directors and subsequently ap- 
proved by a third, but without formal vote or 
conference with the other two directors, and 
without their knowledge or that of the cashier, 
but not designedly concealed. Bradstreet v. 
BankofRoyalton, 42 Vt. 128. 

2. Cashier. Held, that a bank was bound 
by the representations of its cashier, made in 
the ordinary course of busmess, as to the pay- 
ment of a note in the bank, upon the faith of 
which the maker of the note acted. Manufae- 
tnrers' Bank v. Scofield, 39 Vt. 690. 

3. The defendant signed a writing addressed 
to the person, by name only, who was cashier 
of the plaintiff bank, saying: *'I wish you 
to discount a note," &c., and guaranteeing its 
goodness and payment. The bank, on the 
credit of the guaranty, discounted the note. 
Held, that an action on the guaranty lay in the 
name of the bank, counting upon a promise to 
the bank. Woodstock Bank v. Dotoner, 27 Vt. 
482. 

4. Notice to the attorney of a bank, or to 
the cashier, while acting in the matter of at- 
taching land for the l)enefit of the bank, of an 
equitable right in a third person — as, by a de- 
fective deed on record, — is notice to the bank. 
Vt Mining Co. v. Windham Co, Bunk, 44 Vt. 
489. 

5. The forfeiture of f600, imposed by Stat. 
1866, No. 6, 8. 6, upon cashiers of banks for 
failing to tfansmit to town clerks a list of share- 
holders, seems to be a fixed compensation to 
the town for the wrone dcme, and an exclusive 
remedy. Newman y.Waite, 48 Vt. 687. So 
held~Brattleboro v. Wait, 44 Vt. 469. 



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6. An action by the town to recover such 
forfeiture is remedial, not penal, and is not 
barred by the two years* limitation of G. 8. c. 
62, 8. 5. /&. Bee BumeU v. Wofrd, 42 Vt. 80. 

7. Oertifyiiig clieckB. The business of 
advancing eerUfied or (Msommodation checks by 
banks to brokers beyond their deposits, to be 
made good during the day, is one in which the 
strictest and utmost confidence and good faith 
are understood and expected, and scrupulous 
fidelity and punctuality are required ; and it is 
a fraud in the drawer to procure his check to 
be certified after he has become to his knowl- 
edge insolvent, and unable to make his check 
good, as agreed. Bank of Republic v. Bctxter^ 
81 Vt. 101. 

8. S, being insolvent, fraudulently procured 
the certification of his check on Bank A, which 
he deposited in Bank B to the credit of Bank 
C for the use of H, to whom he was indebted 
in the same sum. H had previously directed 
S to deposit that sum for him in bank, but had 
had no conmiunication with Bank B on the 
subject. On receiving the deposit. Bank B ad. 
dressed a letter to Bank C, informing them of 
such deposit and credit, but, before receipt of 
the letter, notified them by telegraph, by pro- 
curement of Bank A, not to make payment 

. upon this credit as there was something wrong. 
H was also informed by telegraph from -6 tliaf 
payment of the check had been stopped, and 
these telegrams were received as early, at least, 
as H received notice of the deposit, and before 
he had in any way acted upon it. Bank A, be- 
fore becoming fully informed of the fraud, had 
paid the money on the check to Bank B. On a 
bill in chancery brought by Bank A; — Held 
{Bennett, J., dissenting), that Bank B was not 
the agent of H, so that the reception of the 
money by that Bank was in law a payment to 
him, and that Bank A was entitled to reclaim 
the money. lb, 

9. Baiik stock. The return of payments 
made on subscriptions for bank stock, such re> 
turn being made in the form of loans to the sub- 
scribers upon private security, was held a viola- 
tion of a bank charter ; but, on information for 
this cause, the court in their discretion refused 
to vacate the charter. State v. Essex Bank, 8 
Vt. 489. 

10. Where the banking law prohibited the 
votes, either personally or by proxy, of stock- 
holders residing out of this State ;—Held, that 
such stock could not be voted upon by residents 
of this State to whom it had been regularly 
transferred upon the books of the bank, but 
only for the purpose of enabling them to vote 
upon it, and who held it only in trust for the 
non-resident real owner. State v. Hunton, 28 
Vt. 594. 

11. There was a provision in a bank charter, 
tliat no transfer of stock should be valid unless 



recorded in a book to be kept by the bank for 
that purpose, and unless the person making the 
transfer should have previously discharged all 
his debtd to the bank. A, a stockholder, with- 
out consideration and for the purpose of in- 
creasing the vote upon his stock at elections, 
transferred upon the book certain shares to B, 
but A afterwards, for years, wholly controlled 
the shares and took the dividends, and then B 
purchased the shares of A. Before such pur- 
chase, A became indebted to the bank, upon 
the faith that he was the owner of the shares, 
and after such purchase, but without knowledge 
thereof by the bank, the bank attached and 
sold the shares upon the debt of A. Held, that 
B, under the circumstances, was bound to make 
inquiries as to the state of the title before he 
purchased, and that as between him and the 
bank his title did not accrue until he had given 
notice of his purchase, whereby he had become 
the beneficial owner ; and that the title of the 
bank must prevail. Sabin v. Bank of Woodstock 
21 Vt. 868. 

12. The bona fide purchaser of bank stock 
of one in whose name the shares stand on the 
books of the bank acquires good title against 
the world. The mode of transfer pointed out 
in the charter is the only mode which the pub- 
lic are bound to regard as conveying the title ; 
and all persons, unaffected with notice to the 
contrary, are at liberty to act upon the faith of 
the title being where it appears on the books of 
the corporation to be. Beheld, J. lb. 

13. Law regulating interest. A bank 
incorporated in this State cannot recover more 
than six per cent, interest for its loans, nor 
upon securities taken therefor, though the loans 
may be made and the securities executed in 
another State where a higher rate of interest is 
allowed by law. Farmer's Bank v. Burehard, 
83 Vt. 846. 

14. In this State, since the statute of 1886, 
the contracting by an incorporated bank for 
interest upon loans or discounts exceeding 
the rate prescribed by the laws of the State, 
whether this be treated as aviolation of its 
charter and the laws governing its existence 
and acts, or. as uUra vires, as the term is 
technically used, has no other effect upon 
the contract than to render it void as to such 
excess. lb. Bank ofMiddlebury v. Bingham, 
88 Vt. 621. 

15. Law restricting loans. Where the 
statute prohibited banks from loaning more 
than ten per cent, of their capital to one person 
and subjected the directors consenting thereto 
to a penalty, and to an action for damages 
therefor; — Held, that neither the party who 
had obtained such loan, nor his surety, could 
set up in defense such violation of the statute. 
FiMrmeri Bank v. Burohard. 

16. " Bank Amd." Under the safety txuxd 



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BANK.— BANKRUPTCY, I. 



bank act of 1831 (C. 8. c. 84),— J7<jW, that 
such part of the safety fund as had been con- 
tributed by a particular bank could not be with- 
held from appropriation for payment of the 
debts of an insolvent bank, although such bank 
became insolvent before the other came into 
existence. Elwood v. State. Trmmrer, 23 Vt. 
701. 

17. To a bill by the receiver of an insolvent 
bank brought to charge tlie *'bank fund/' the 
State Treasurer is a proper party defendant. 
Danby Bank v. State Treamrer, 37 Vt. 641. 

18. The Banby Bank was in business several 
years without contributing to the *'bank fund, 
the directors giving bonds instead. In 1856 no 
bonds were given, and for 1866 and 1867 the 
bank contributed to the ''bank fund," and be- 
came insolvent. Held, that the liability of the 
*'bank fund'' for payment to the bill holders 
attached at once upon the failure to give the 
bonds. lb. 

19. Under the Bank Act (C. S. c. 84);— 
Held, that the giving of bonds for redemption, 
according to s. 87, did not authorize a bank to 
withdraw, or the State treasurer to pay to it, 
any part of the fund previously deposited, ex- 
cept upon the expiration of its charter. Held, 
also, that the ''bank fund" waf» the property of 
the banks contributing to it, and was not 
absorbed by the State as part of its general as.-' 
sets, but was to be kept separate and be man- 
aged by the treasurer ; and hence, though re 
duced by the wrongful act of the treasurer in 
pa3ring it back to other banks not entitled to it, 
the order by mandanme should not require him, 
as treasurer, to pay to the receiver of an insolv- 
ent bank, which had contributed to the fund, 
any money of the State as distinguished from 
the "bank fund." Miner v. State Treamrer, 
Vt. 92. 

20. Payment in bills of tlie bank. In 
an action to recover a debt to aA insolvent bank 
brought in the name of the bank by an equita- 
ble assignee, where the defendant had notice of 
such interest before suit brought ; — Held, that, 
under the charter, the debt could be paid in the 
bills of the bank, but not the costs of the suit. 
Bank of Bennington v. Booth, 16 Vt. 860. 

21. Negotiable paper, not made payable 
upon its face or by direct indorsement to a bank, 
was held not subject to C. S. c. 84, s. 82, after 
the bank had ceased to be the owner of it ;— 
the act providing, that the bills of a bank shall 
be received by the bank in payment of all de- 
mands "made payable to, or the property of, the 
bank." Bruce v. Hawley, 31 Vt. 648. 

22. National banks. Held, that the pro- 
viso to Sec. 41 of the national banking act of 
June 3, 1864, allowing the assessment and taxa- 
tion of shares in a national bank against the 
owner "imposed by or under State authority 
at the place where such bank is located, and 



not elsewhere," is not in conflict with the 
statute requiring such shares to be set in the 
list of the town where the owner resides, being 
other than that where the bank is located ; — 
that this proviso merely requires that the tax, 
to be valid, shall be imposed under the State 
authority existing at the place where the bank 
is thus located, and does not limit the place of 
assessment. Cla^ v. BurUngton, 42 Vt. 679. 

23. The cashier of a National Bank is sub- 
ject to the penalty imposed by act of 1866, No. 
6, for neglect to return to town clerks the 
names of the stockholders residing in such 
town. Newman v. Wait, 46 Vt. 689. 

24. The taking of special deposits to keep, 
merely for the accommodation of the depositor, 
is not within the authorized business of banks 
organized under the National Banking Act of 
1864 ; and their cashiers have no power to bind 
them to any liability on any express contract 
accompanying, or any implied contract arising 
out of, such taking. Wiley v. National Bank 
of BrattMxyro, 47 Vt. 646. 

25. Savings bank. A deposit in a sav- 
ings bank stated in the depositor's "deposit 
book," not made payable to order or bearer, 
cannot be assigned so as to enable the assignee 
to maintain an action therefor against the bank. 
Howard v. Saxiinge Bank, 40 Vt. 697. 



I. 
II. 



BANKBUPTOT. 

U. S. Bankrupt Act of 1841. 
U. S. Bankrupt Act of 1867. 

I. Act of 1841. 



1. Act of bankruptcy. A conveyance or 
assignment by a trader in embarrassed circum- 
stances, of all his property to a particular credit- 
or, whether made voluntarily or under pressure 
of legal process, or whether made with the in- 
tention of taking the benefit of the bankrupt 
act or not, is an act of bankruptcy under the 
Act of 1841. QaeeeU v. Motm (U. S. D. C), 
21 Vt. 627. 

2. Preference. To constitute a prefer- 
ence, the prevailing doctrine seems to be, 
that a pa3rment, where it consists of an appro- 
priation of a part only of the debtor's property, 
must be made in contemplation of bankruptcy, 
and must be voluntary. Both must con- 
cur. Something more must appear than mere 
insolvency : and to be voluntary, the payment 
must originate with the debtor, the first step 
being taken by him and not by the creditor. 
In re RoweU {U. S. D. (7.), 21 Vt. 620. lb, 
681. 

3. A man may be insolvent, and yet go on 
with his business and with the bona fide inten- 



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tion and expectation of saving himself from 
breaking or failing, and of being able to pay 
his debts: and a payment or transfer under 
such circumstances, though voluntary, would 
not be a preference within the meaning of the 
Bankrupt Act. In re Pmrce (U. 8. D, V.\ 
21 Vt. 611. 

4. Lien. Held, that where property was 
attached before the alleged act of bankruptcy 
was committed, and judgment was obtained 
and the property seized in execution before the 
filing of the petition, though after the act of 
bankruptcy, this created a Uen^ in the absence 
of fraud or collusion, which was protected by 
the Act ; yet where the creditor had notice of 
the act of bankruptcy before his attachment, or 
of the debtor's intention to take the benefit of 
the act, the attachment was a fraud upon the 
act and did not create a lien ; and that the pen- 
dency of the petition was itself notice such as 
to deifeat the attachment. Drntner v. Brackett 
(U. 8. D, a\ 21 Vt. 599. Htmes v. Spaulding 
(U. 8. a C.\ 21 Vt. 610. 

5. Under the Bankrupt Act, where a cred- 
itor has acquired a lien by an attachment which 
is protected, he is entitled to have judgment in 
his suit, and to take execution against the pro- 
perty attached. In re Howell {U. 8. D, G,\ 
21 Vt. 620. 

6. The t«rm Utn^ in common acceptation, is 
understood and used to denote a legal claim or 
charge on property, either real or personal, for 
the payment of any debt or duty, although the 
property be not in the possession of him to 
whom the debt or duty is due. Tlius an at- 
tachment is denominated a Uen in the statutes 
of this State, and the term is used in this sense 
in the U. S. Bankrupt Act of 1841. Downer v. 
BrackeU (U. 8. D. C.\ 21 Vt. 699. 

7. Such Uen by attachment is protected 
under that Act. lb. In re RmoeU, 21 Vt. 620. 
In re Reed, 21 Vt. 635. 

8. Claim assigned. Where one, prior to 
his petition in bankruptcy, absolutely assigns a 
chose in action, an action thereon may, after 
such petition, and after his discharge, be main- 
tained either in his own name for the benefit of 
the assignee of the demand, or in the name of the 
assignee in bankruptcy. Stedman y, Gassetty 
18 Vt. 346, Hat/den v. i^iVv?, 18 Vt. 553, and 
note. 

9. The plaintiff before his bankruptcy made, 
for good consideration, an equitable assignment 
of a chose in action [a book account]. Held, 
that this claim did not pass to his assignee under 
the Bankrupt Act ; and that having purchased 
it back after his certificate of discharge, he 
could sustain an action in his own name to 
recover it. Blin v. Pierce, 20 Vt. 25. 

10. Bemedy under State laws, ffeld, 
that a creditor who had not proved his debt 
might, before the bankrupt had procured hi9 



discharge, pursue such remedies against the 
Imnkrupt as were afforded by the State laws ; 
and the U. 8. District Court in bankruptcy 
refused, before such discharge, and in such case, 
to discharge the bankrupt from imprisonment 
under State process. In re Camstoek (U. 8. 
2>. C), 22 Vt. 642. 

11. Injunction. Jleld, that the District 
Court could grant an injunction in behalf of the 
assignee of a bankrupt, where the proceedings 
in bankruptcy were instituted and the estate 
was being administered in another District. 
Moore V. Jones (U, 8. B. C.% 23 Vt. 739. 

12. Debts provable. A judgment in an 
action of tort is a debt provable against the 
estate of the bankrupt, and, although not prov- 
ed, is barred by the final discharge, although 
the cause of action arose from the wilful and 
malicious act of the defendant, and was so ad- 
judged and certified. Comatock v. Orout, 17 
Vt. -512. In re Comstock (U. 8. D. C.\ 22 Vt. 
642. 

13. Held, that debts of the bankrupt, orig- 
inating between the filing of the petition and 
the decree of bankruptcy, were provable under 
the commission, and, although not proved, 
were barred by the certificate of discharge. 
8palding v. Bixon, 21 Vt. 45. 

14. Discharge. Held, that a judgment 
obtained pending the bankruptcy proceedings, 
for a provable debt, was barred by such certifi- 
cate, not only as to the debt, but the costs also. 
Harnngtan v. McNaughUm, 20 Vt. 293. Dow- 
ner V. RoweU, 26 Vt. 897. 

15. Discharge refused, by reason of a frau- 
dulent preference, upon the facts stated. In 
re Chase (U. 8. D, C), 22 Vt. 649. 

16. The objection to a bankrupt's discharge, 
on the ground of concealment of his property, 
involves not only a charge of gross fraud, but 
also the crime of false swearing, and therefore 
ought to be substantiated, either by direct tes- 
timony, or by such facts as afford unequivocal 
circumstantial evidence of it. In re Pea/rce 
(U. 8. D. C), 21 Vt. 611. 

17. Where all the property of a bankrupt 
was under an attachment when he filed his pe- 
tition ',—Held, that it was no objection to his 
discharge, that he had consented to the sale of 
his personal property on the attachment under 
the statute of this State, nor that he had con- 
fessed judgment in the suit— it appearing that 
the debt was bona fide and due — nor that he 
had executed to the creditor a quitclaim deed 
of all his interest in the real estate — it being 
previously incumbered by mortgage to nearly 
its full value. In re Heed (U, 8, D, (7.), 21 
Vt. 635. 

18. Impeaclunent of discliarge. A dis- 
charge in bankruptcy cannot be impeached for 
any instances of fraud which were urged in the 
U. S. District Court in objection to the di9- 



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charge ; but may be, for further aad other in- 
stancea of fraud. Downer v. RoweH, 25 Vt. 
886. 

19. In answer to a plea of discharge in 
bankruptcy under the Act of 1841, the plaintiff 
may, under the 4th section, give written notice 
specifying the several fraudulent acts or con- 
cealments relied upon to avoid the plea ; but if, 
instead of so doing, the plaintiff adopts the 
form of a special replication, thereby calling 
for a rejoinder and special traverse, his replica- 
tion must be single ; and where it set up more 
than one distinct transaction, it was held ill on 
special demurrer. Downer v. R&well, 26 Vt. 
397. 

20. The effect of a dischai^ in bankruptcy, 
as to a particular debt, is not avoided by the 
omission of the bankrupt to state such debt in 
his schedule, unless such omission involved a 
fraudulent concealment. Downer v. Dana, 
Vt. 887. 

21. Effect of discharge. A discharge in 
bankruptcy is not a bar to an action against the 
sureties of the bankrupt upon a jail bond, for 
an escape committed between the decree in 
bankruptcy and the final discharge. Dyer v. 
Cleavfland, 18 Vt. 241. 

22. A note discharged by a certificate in 
bankruptcy is functus officio and ceases to be 
negotiable. The indorsee cannot recover there- 
on by force of a new promise made to the payee. 
It is the new promise alone which gives the ac- 
tion, and this is not negotiable. The action 
must be in the name of the person to whom the 
promise is made. Waldridge v. Harroon, 18 
Vt. 448. 

23. A discharge in bankruptcy was held to 
be no bar to an action for contribution by a co- 
surety on account of a payment made after the 
discharge, upon a liability for the principal 
which existed before the bankruptcy. Swain 
V. Barber, 29 Vt. 292. 

24. An audita querela lies in behalf of a 
debtor confined in close jail, against the cred 
itor who refuses to release him after he has re- 
ceived his discharge in bankruptcy. Cometock 
V. Grout, 17 Vt. 512. 21 Vt. 566. 

25. Aliter, where the debtor is admitted to 
the jail liberties upon jail bond. In such case 
lie must judge for himself, and the creditor is 
not bound to do any act to ratify the discharge. 
Oauld V. Mathetc9<m, 18 Vt. 65. 21 Vt. 566. 

26. Pleading. A plea alleging the decree 
in bankruptcy, and the subsequent discharge 
of the defendant and certificate thereof without 
setting forth the previous proceedings, and con- 
cluding with a verification, was held sufficient. 
Doicner v. GhamherUn, 21 Vt. 414. 

27. In an action on a promissory note 
against several, with a joint plea of the general 
issue, the plaintiff put in evidence the discharge 
in bankruptcy of one of the defendants, with 



his consent but against the objection of the 
other defendants, and verdict and judgment 
were rendered in favor of that defendant but 
against the others. Held not erroneous. Miner 
V. DowTwr, 20 Vt. 461. 

28. A joint contractor who has obtained his 
discharge in bankruptcy must, nevertheless, 
be joined as defendant in an action upon the 
contract. For non-joinder in such case, the 
writ was abated. Roberts v. McLean, 16 Vt. 
608. 

29. A surety, after the discharge of his 
principal in bankruptcy, not having proved his 
contingent claim in bankruptcy, paid the debt. 
Held, that he could recover of the principal 
therefor in an action of indebitatus assumpsit 
upon an implied promise. WeUs v. Mace, 17 
Vt. 508. {ReversedXvk U, 8. Sup. Ct., 7 Howard, 
272.) 26 Vt. 785. 

30. The plaintiff went into bankruptcy hav- 
ing an account against the defendant ; but this 
account was not included in his schedule, nor 
acted on by his assignee, and was not before 
the court in bankruptcy. Ileld, that such facts 
did not toll the plaintiff's right to maintain an 
action therefor. SUele v. Towne, 28 Vt. 771. 

31. New promise. The moral obligation 
and duty of a discharged bankrupt to pay his 
debt contracted before his bankruptcy, afford a 
sufficient consideration to sustain a new prom- 
ise to pay it ; and such promise need not be in 
writing. Farmen? <fc Mech^. Bank v. Flint, 
17 Vt. 508. 

32. A promise to the creditor, or to his 
agent, to pay the debt, with an intent to con- 
firm the original demand, is sufficient to re- 
move the bar of a discharge in bankruptcy. 
HiU V. KendaU, 25 Vt. 528. 

33. The defendant promised to pay a debt, 
discharged in bankruptcy, when he should be- 
come of sufficient ability. Held, that the prom- 
ise was conditional, depending upon a condition 
precedent, viz., his ability to pay. Sherman v. 
Hobart, 26 Vt. 60. 

34. The defendant, after his discharge in 
bankruptcy, stated an account with the plain- 
tiff and agreed upon a balance due, which ac- 
count was of items which accrued before the 
Imnkruptcy. Held, that from the naked fact 
of so stating the account the law did not imply 
an obligation to pay it, but that such obligation 
must rest upon an express promise ; and where 
the promise was to pay this balance by his share 
in the avails of certain demands in the hands 
of the plaintiff ',—Held, that the plaintiff must 
be content with that and could not recover such 
balance in an action, since the tlebt had been 
legally discharged in bankruptcy. Warren v. 
Bishop, 22 Vt. 607. 

35. The discontinuance by a debtor of his 
petition and proceedings in bankruptcy, under 
the Bankrupt Act of 1841, is a sufficient con- 



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BANKRUPTCY, II.— BASTARDY. 



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aideration to suBtain a written contract by his 
creditors to give further time of payment. 
IiOomU V. Wainright, 21 Vt. 520. 

n. U. 8. Bankrupt Act op 1867. 

96. Exemptions. Property exempt from 
attachment by the. State law does not pass to 
an assignee in bankruptcy^ nor is the title of 
the bankrupt thereto impaired or affected by 
the bankrupt act. TFt^'TUKm v. TKotY, 44 Vt. 508. 

37. The defendant, as constable, attached a 
yoke of oxen of the plaintiff which were ex- 
empt from attachment. While so held, the 
plaintiff was adjudged a bankrupt, and the de- 
fendant was enjoined by the bankrupt court 
(dmply) from selling the oxen. The assignee 
in bankruptcy afterwards demanded the oxen 
of the defendant, and he delivered them, under 
protest, to the assignee, who sold them and held 
the proceeds. In trover for the oxen ; — Held, 
that the plaintiff was entitled to recover their 
full value; that the proposition that the as- 
signee, of his own motion, without any order of 
court, had a right to take the property, and 
compel the plaintiff to abandon his remedy 
against the defendant and follow him, the as- 
signee, into the U. 8. District Court, is unten- 
able, lb. 

38. Discharge. A judgment rendered in 
an action declaring upon a contract is not **a 
debt created by fraud," within the meaning of 
the U. S. Bankrupt Act, although in fact the 
contract declared upon was induced by fraud. 
The action in that form and judgment therein 
are a waiver of the fraud ; and the court will 
not go behind the record. Hence, the debtor's 
discharge in bankruptcy is a bar to an action 
on such judgment. Palmer v. Preston^ 45 Vt, 
154. 

39. A discharge in bankruptcy will not de- 
feat a lien created by trustee process more than 
four months before the commencement of the 
proceedings in bankruptcy, but such lien may 
be enforced in chancery by a special decree in 
rem, Stoddard v. Loeke, 48 Vt. 574. 

40. A discharge in voluntary bankruptcy is 
not a bar to an action to recover a provable 
claim, where the debtor fraudulently deprived 
the creditor of notice of any proceedings in 
bankruptcy. BaUhslder v. Ixnc, 48 Vt. 662. 

41. A promise to pay a debt discharged in 
bankruptcy is valid though made by parol, and 
may be proved by parol, and by the plaintiff 
himself, where he is made a general witness by 
stotute. Barron v. Benfdi4!t, 44 Vt. 518. 

42. The claim of a conditional vendor for 
an illegal sale by the vendee is not barred by 
the vendee's discharge in bankruptcy, although 
the vendor has proved his claim in bankruptcy 
for the contract price;— his lien is preserved. 
Johns<m V. Wi^rden, 47 Vt. 457. 



43. Plea in bar, that since the commence- 
ment of the suit the defendant had been ad. 
judged a bankrupt, that the plaintiff had proved 
his debt in bankruptcy and that the bankrupt 
proceedings were still pending, was held ill on 
general demurrer,— the debt not being extin- 
guished without a discharge, and the proceed- 
ings only operating to suspend final judgment. 
Brandon Mfg. Co. v. Fraeer, 47 Vt. 88. 

44. A bankrupt who purchases of his as- 
signee a claim originally due himself can sue 
thereon in bis own name. UdaU v. School IHs- 
trict, 48 Vt. 588. 



BASTABDY. 

1. Bastard— Bight of inheritance. Under 
the statute of 1821 (Slade's Stat. c. 44, s. 77), 
a bastard can inherit from another bastard of 
the same mother. Burlington v. Fosby, 6 Vt. 
88 ; but not from a legitimate child of the same 
mother. Bacon v. McBride, 32 Vt. 585 

2. The adoption of an illegitimate child by 
the putative father, under G. 8. c. 56, s. 6, 
legitimates the child only *'<w respects moh 
faiher,'' and does not render the child capable 
of inheriting through the father as his repre- 
sentative. Safford v. Hwight(m, 48 Vt. 286. 

3. Bastardy prosecution— A civil suit. 
A prosecution for bastardy is in effect but a 
civil suit, though conducted under some of the 
forms of a criminal proceeding. Rohie v. Mo- 
Niece, 7 Vt. 419. Gray v. FuUome, 7 Vt. 452. 
Oaffery v. Ati9tin, 8 Vt. 70. Hokomb v. SUmp- 
Hon, 8 Vt. 141. AUa/rd v. Bingham, 8 Vt. 470. 
Coome% V. Knapp, 11 Vt. 548. Spears v. For- 
rent, 15 Vt. 485. 

4. It requires no minute of the true day, 
&c., when the complaint was exhibited. Spean 
V. Forrest. 

5. Defects of form in a bastardy prosecu- 
tion are cured by verdict, this being a civil pro- 
ceeding. Bobie V. McNiece, 7 Vt. 419 ; as, that 
the complaint was not signed by the complain- 
ant ; and that the justice returned to the county 
court copies instead of the original papers. 
Bamo V. Wilson, 24 Vt. 517. 

6. In a bastardy prosecution, costs are to 
be taxed in favor of the defendant, where he is 
discharged, whether the judgment be rendered 
on a verdict, or on demurrer, or on quashing the 
proceedings, or on non-suit, — as in other civil 
suits. Allard v. Bingham, 8 Vt. 470. 

7. A prosecution for bastardy is not such a 
civil cause " as is reviewable under the stat- 
ute. Bobinson v. Dana, 16 Vt. 474. Street v. 
Sherman, 21 Vt. 28. 

8. When maintainable. A bastardy pros- 
ecution may be maintained in the name of a 
married woman, where the child was born be. 



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BASTARDY. 



fore her marriage,— her husband in such ca«e 
joining in the request and prayer for a warrant. 
8i9co V. Harmon, 9 Vt. 129. But not where 
the child was conceived and born during her 
coverture, even by proof of non-access of the 
husband. Oaffery v. AvsUn, 8 Vt. 70. 9 Vt. 
138. 

9. A bastard child bom out of this State, its 
mother having at the time no domicil within 
this State, caonot be affiliated, or its mainten- 
ance charged upon the father, under our stat- 
ute. Graham v. Monnergh, 22 Vt. 543. Egle- 
9on v. Battles, 26 Vt. 548. 

10. But if the mother at the time of the 
birth is bona fide an inhabitant of this 
State, the birth of the child out of the State, 
by accident or during a temporary absence 
from this State, will not deprive her of the 
statute remedy against the father. Egleson v. 
Battles, 

11. Where brought. A bastardy prosecu- 
tion may be brought where the mother resides, 
irrespective of the place where the child was 
begotten. Allen v. Ford, 11 Vt. 867. 

. 12. Oomplaint. A bastardy complaint 
must be in writing, and this implies signing by 
the complainant, by herself, or by some person 
for her. by her authority. Graves v. Adams, 
8 Vt. 130. 

13. It is not necessary that the complainant 
should swear Rhe is a single woman. It is suf- 
cient that she appears before the justice as 
such, and in that character makes her com- 
plaint. Bobie V. McNUee, 7 Vt. 419. 

14. A bastardy complaint by J G, alleging 
that the defendant did beget a child on one J G, 
&c., was held insufficient—** (W<! J G" imply 
ing a third person. Graves v. Adam*, 8 Vt. 
130. 

15. The complaint alleged the proceedings 
to be under a statute which was in fact repeal- 
ed, but it was good under other statutes. Held, 
that this was of no importance ; no reference to 
any statute was necessary, since the court takes 
notice of the general statutes of the State. 
Blood V. MiyrnU, 17 Vt. 598. 

16. Warrant. An objection for defect in 
the service of the warrant in a bastardy case, 
if not made before the justice, is waived and 
cannot be taken in the county court. Qnuno v. 
ConUn, 31 Vt. 620. 

17. Oopies. Under the practical construc- 
tion of the Bastardy Act, copies of the pro- 
ceedings before the magistrate, instead of the 
original papers, have been sent up and used in 
the county court, which is, perhaps, the proper 
course. 8i»oo v. Ha/rmon, 9 Vt. 129. 

18. Although in bastardy proceedings the 
statute in terms requires the justice to return 
the original papers to the county court, yet 
where he returned copies instead ',—Held, after 
verdict, that no objection for this cause lay ; 



that it was the same as if copies had been sub- 
stituted by order of the court. Bamo v. Wilson, 
24 Vt. 517. 32 Vt. 629. 

19. G. S. c*33, s. 11, authorizing the filing 
of a new declaration in case of the loss, Ac, of 
**the writ and declaration," does not apply to 
a prosecution for bastardy, where the original 
complaint, justice's record and warrant are lost. 
Bingham v. Marcy, 32 Vt. 278. 

20. Interposition by oyerseer of the 
poor. By the Bastardy Act of 1822 (Slade's 
Stat. 366, s. 5), where the overseer of the poor 
neglected for three months to take the control 
of a bastardy prosecution commenced ; — Held, 
that it might be settled and released by the com- 
plainant. Hurd V. Seeker, 12 Vt. 864. (The 
law is since changed.) 

21. A bastardy proceeding cannot be com- 
menced in the name of the overseer of the 
poor, under G. 8. c 74, s. 17, where the wo- 
man had, before her delivery, conmienced a 
prosecution in her own name, and during its 
progress had compromised it and given a 
discharge. NorwicJi v. Ta/rrington, 20 Vt. 
473. 

22. Where the overseer of the poor had 
taken charge of a bastardy prosecution accord- 
ing to the statute, and the mother had after- 
wards released the respondent, and the town 
was afterwards secured or indemnified against 
the support of the child ; — Held, that such re- 
lease was a good defence to the further prose- 
cution of the complaint. Humphrey v. Kas- 
son, 26 Vt. 760. 

23. In a prosecution against the mother of 
a bastard, under G. 8. c. 74, s. 17, no certifi- 
cate of the overseer of the poor of his intent to 
prosecute, as under s. 13, is necessary. Hale 
V. Turner, 29 Vt. 360. 

24. The mother's right. In settlement of 
a bastardy prosecution commenced by the 
mother, the father of the child gave her his 
promissory note, but was afterwards prosecut- 
ed by the overseer of the poor and was com- 
pelled to give a bond to indemnify the town 
against the support of the child. The mother 
always supported the child. Held, that the note 
was on good consideration, and a recovery 
by her was had thereon. Knight v. Priest, 2 
Vt. 507. 

25. Money received by the overseer of the 
poor in settlement of a bastardy prosecution 
controlled by him and paid into the town trea- 
sury, may be recovered of the town by the 
mother of the bastard, who supported him until 
he became old enough to support himself. It 
was the duty of the overseer, under the statute, 
to apply the money ** solely for the support of 
the child." Brake v. Sharon, 40 Vt. 35. 

26. Settlement. The discharge or com- 
promise of a bastardy prosecution is a sufficient 
consideration for a note to the complainant. 



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Hmen v. Holfb$, 1 Vt. 288. Knight v. Priegt, 
2 Vt. 607. Holcamb v. SUmpsan, 8 Vt. 141. 

27. A settlement made with the mother of 
a bastard by the putative father, or her release 
executed to him, operates only as a satisfaction 
or release of her own claim, and does not, unless 
made with the consent of the overseer of the 
poor, defeat his right to commence or control 
a prosecution in the name of the mother, or to 
commence one in her own name. Sherman v. 
Johnson, 20 Vt. 567. 26 Vt. 764. 29 Vt. 853. 

28. Nor will the consent to such settlement 
by the overseer of the town where the mother 
resides, avail against a prosecution by the over- 
seer of the town where she has her legal settle- 
ment, and to which she becomes chargeable. 
Hale V. Turner, 29 Vt. 850. 

29. SatisfiBtction by intermarriage. The 
intermarriage of the parties to a bastardy pro- 
secution, although after the birth of the child, 
and although control of the prosecution has 
been assumed by the overseer of the poor, 
abates and terminates the prosecution. Gordon 
V. AnUdan, 36 Vt. 735. 

30. Evidence. The declarations of the 
plaintiff in a bastardy prosecution are evidence 
against her in chief, though made after the 
overseer of the poor has taken control of the 
prosecution. Sterling v. Sterling, 41 Vt. 80. 

31. In a bastardy prosecution, evidence 
tending to show sexual intercourse between the 
plaintiff and others than the defendant, and acts 
of indecent familiarity with them, outside of 
the time within which according to the course 
of nature the child could have been begotten, 
was hM inadmissible, either as independent 
evidence, or as contradicting what the plaintiff 
had, as a witness, denied on cross-examination. 
lb, 

32. So, also, evidence that the plaintiff en- 
deavored to procure an abortion. lb. See 
Suteet V. Sherman, 21 Vt. 23. 

33. Defknlt. An order of afSliation, and 
other orders, in a bastardy prosecution, may be 
made upon default of the defendant to appear. 
Blood V. MornU, 17 Vt. 598. 

34. Becognizance. The original recogniz- 
ance entered into before the justice in a bastardy 
prosecution, conditioned that the defendant 
shall appear in the county court to answer the 
complaint and abide the order of the court (G. 
S. c 74, 8. 8), stands as a security for the per- 
formance of the orders of the court, unless 
there be a surrender of the principal, or a new 
recognizance be entered into. Simmons v. 
Ad'ims, 15 Vt. 677. Freeman v. Batchelder, 
85 Vt. 13. 

35. The liability of bail on such recogniz- 
ance taken before the Justice may be discharged 
by a surrender of the principal, at the term of 
the county court when he is required to ap- 
pear. Mather v. CUvrk, 2 Ailc. 209. Gray v. 



Fulsome, 7 Vt. 462. Simmons v. Adams, Su- 
pra. 35Vt.l5. Humphrey Y. Kasson, 26 Yi.ieO. 

36. In order to the discharge sf a surety on 
such recognizance, it is not enough that the 
principal appear in the county court and de- 
fend the suit, but there must be a formal sur- 
render of the principal into the custody of the 
court, and an exoneretur entered upon the re- 
cord. Blood V. Morrill, 17 Vt. 598. Hum- 
phrey V. Kasson, 

37. It is no defense to an action against the 
surety upon such recognizance, that by reason 
of the sickness of the principal he could not be 
surrendered in court. Humphrey v. Kasson, 

38. A.recognizance under the bastardy act 
to perform the order of the court, which order 
included an installment over-due at the time 
the recognizance was taken, was held valid as 
to the whole. Harid v. Allen, 25 Vt. 103. 

39. Enforcement of order. The mode of 
enforcing the orders of the court in a bastardy 
case, upon the recognizance taken by the jus- 
tice, is the same as is prescribed as to a substi- 
tuted recognizance in the county court (G. 8. 
c. 74) ; and a judgment in scire facias upon 
such original recognizance, for the present worth 
of the sums by the order made payable in 
future, was held erroneous. Freeman v. 
Batchelder, 35 Vt. 13. 

40. A judgment in the Supreme court 
against a surety on the recognizance given in a 
bastardy case falls within G. 8. c. 80, ss. 65-7, 
and, by s. 68, a sdre fudas thereon may be 
brought in the county court. Freeman v. 
Batchelder, 86 Vt. 292. 

As to legal settlement of bastard, see Paupbr, 
II. 2. 



BILL OF LADING. 

The indorsement and transfer of a bill of lad- 
ing as collateral security for the payment of a 
draft drawn upon the faith of it, was held to 
transfer the title to the cargo. (This applied to 
goods transported by railroad.) Tilden v. 
Mimyr, 45 Vt. 196, and see Davis v. Bradley, 
24 Vt. 55. 28 Vt. 118. 



BILLS AND NOTES. 

I. Form, Operation and Validity. 
II. Prkskntmknt and Aookptanok op Bills. 
III. Effkot whbrb Note is Given for a 

Subsisting Claim. 
IV. Transfer. 

1. Mode. 

2. Time of transfer; Holder bona 

fide— for value. 



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8. Effect as to CfuUing off defenses 

and equities, 
4. Demand and notice to charge in- 

dorser, 
V. Action. 

1. Hote payable in specific ehatteh. 

2. Lost note, 

3. Parties, 

4. Pleadings. 
6. Defenses, 

I. Form, Operation and Validity. 

1. Signing. The payor of a note is bound 
by his signature affixed thereto by the nominal 
payee by the payor's request. The person so 
affixing the signature is regarded not so much 
an agent, as an instrument used by the payor 
to perform the act by which he binds himself. 
Ha/ten v. Holbs, 1 Vt. 238. BeUom v. Weeks, 
41 Vt. 603. 

2. Deliyery. The maker of a promissory 
note took it from the payee for the purpose of 
obtaining the signature of a surety, but, after 
obtaining such signature, refused to redeliver 
the note. Held, that for want of delivery the 
surety was not bound by the note. Chamber- 
lain V. JIopps, 8 Vt. 94. 80 Vt. 26. 

3. A note given under an agreement not to be 
used unless signed also by certain others, is not 
effective in the hands of any person who takes 
it with knowledge of such agreement* unless 
fully signed as agreed. Harrington v. Wright, 
48 Vt. 425 ;— and see Farm, & Mechs. Bank v. 
Hathaway, 38 Vt. 639. Holmes v. Orossett, 33 
Vt. 116. 

4. Void for uncertainty. A note promis- 
ing to pay J B ^ ^sixteen the first day of March 
next with interest," was held void for uncer 
tainty, and that parol evidence was not admis- 
sible to explain it ; and that a recovery could be 
had, counting on the original consideration. 
Brmcn v. Bebee, 1 D. Chip. 227. 

5. The same was held, where the note was 
to pay *' J. & Wain Wright" (a sum named) **in 
one. from the first of Oct. next, in cattle or 
merch*ble grain by the firs of January follow 
ing, with use.", WcUnwright v. Straw, 15 Vt. 
215. 

6. Marginal memorandum, A memoran 
dum made at the bottom or in the margin of a 
written contract at the time of signing it — and 
this will be presumed unless the contrary ap- 
pears—which forms an important qualification 
of the contract, and especially when this is for 
the ease of the maker, has the same effect as if 
inserted in the body of the contract. Whether 
such memorandum of the place of payment 
merely is to be considered a part of the contract 
—qucere, Fletcher v. BlodgeU, 16 Vt. 26. 

7. A promissory note payable in cash one 
day after date, had a memorandum in the mar. 



gin **, Payable in merchantable fulled cloth in 
one year, &c." Held, that the note was pay- 
able according to the memorandum. Fletcher 
V. BlodgeU, 

8. A memorandum on the margin of a note 
specifying certain items of property at certain 
sums— as ** Stove $26," &c.— the sum total of 
which, as added, equalled the sum expressed in 
the note, was held, in an action for money had 
and received, to be too uncertain to be relied 
upon to determine that the consideration of the 
note was other than money. Cummings v. 
Gassett, 19 Vt. 308. 

9. A condition written on the back of a 
not^ was treated as if incorporated in the note. 
Henry v. Colman, 6 Vt. 402. 16 Vt. 29. 

10. In an action on a note, upon which an 
indorsement of part payment appeared erased ; 
— Held, that the note might be read in evidence 
without first explaining the erasure, such in- 
dorsement being no part of the note. Kimball 
V. Lamson, 2 Vt. 138. 

11. Canadian instrument. A writing, 
signed by the defendant, acknowledging before 
two notaries in Canada an indebtedness to the 
plaintiff for value received, and promising to 
pay that sum to him or order with interest, 
was held to be a promissory note which could 
be declared upon as such in this State. Hitch- 
cocky. Cloutier, 7 Vt. 22. 

12. Negotiability not essential. An open 
letter of request from one to another to pay a 
third person a certain sum of money — as, in 
this case, an order— is a bill of exchange ; and 
it is not essential to the validity of a bill of ex- 
change, or promissory note, that it should be 
negotiable. Arnold v. Sprague, 34 Vt. 402. 

13. Payable in specific articles. A con- 
tract in the form of a promissory note, payable 
in specific articles, is treated in this State as a 
promissory note, as to the form of declaring 
upon it, and the necessity of proof of consider- 
ation. Denison v. Tyson, 17 Vt. 549. Brooks 
V. Page, 1 D. Chip. 340. Dewey v. Washburn, 
12 Vt. 580. 

14. It is so treated with reference to the 
statute of limitations as to promissory notes 
witnessed. Meed v. Mlis, Brayt. 208;— al- 
though no consideration be expressed in it. 
Ijeonard v. Walker. lb, Bragg v. Fletcher, 
20 Vt. 351. 

15. A recovery can be had on such note in 
assumpsit, under the common counts for money 
had and received. Perry v. Smith, 22 Vt. 301. 
Reed v. Sturtetant, 40 Vt. 521. 

16. The indorsee of such a note, though 
not negotiable, must, in order to charge the 
indorser, follow the rules of the law merchant 
with respect to negotiable paper in the matter 
of due demand and notice. Aldis v. Johnson, 
1 Vt. 136. 

17. Where a note is payable in collateral 



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articles at a time and place fixed, the maker 
must, at the time and place fixed, designate the 
articles he oflFers in payment. If payable on 
demand and a demand is made, he must de- 
liver the articles so as to place them at the dis- 
posal of the payee. Wood v. Beeman^ Brayt. 
227. 

18. Writmg name on the back. One who 
writes his name on the back of a promissory 
note, not before being a party to it, assumes, 
prima facte, the obligation of maker, and may 
be sued as snch, the same ap if he had signed 
the note on its face. But, the indorsement 
being in blank, parol evidence may be given of 
the real obligation intended to be assumed — 
as, of guarantor, indorser, &c. Banrrows v. 
Lane, 6 Vt. 161. Knapp v. Parker, 6 Vt. 642. 
FUnt V. Day, 9 Vt. 345. Nath v. SJdnner, 
12 Vt. 219. Hanf&rd v. N<yrt<m, 14 Vt. 228. 
S, G. 17 Vt. 285. Strong v. Biker, 16 Vt. 
554. Sylvester v. Downer, 20 Vt. 855. 28 Vt. 
163. 

19. Where the defendant, not a party to a 
promissory note, wrote his name on the back 
of it in blank long after it was made, and After 
it had passed from the payee without his in- 
dorsement :-^ffeld, that the defendant could be 
sued as maker, in the name of the payee, for 
the benefit of the holder. Strong v. Biker, 

20. Where the defendant, iit the State of 
New York, put his name upon the back of a 
promissory note signed by A and made payable 
to the plaintiff in New York, for the purpose 
of enabling A to purchase therewith property 
of the plaintiff, and the note was so used ; — 
Held, that the defendant was liable thereon as 
an original promissor; and that this liability 
was not limited by a declaration of the defend- 
ant, at the time he put his name upon the note, 
that he would stand by such signature only as 
a second indorser, where this declaration was 
not brought to the knowledge of the plaintiff. 
JiasA V. Skinner, 12 Vt. 219. 17 Vt. 292. 81 
Vt. 820. 

21. Other forms. Where in the body of a 
promissory note the language was*. **We the 
subscribers, jointly and severally, each one for 
himself, as principal," &c., but one of the sign- 
ers attached to his signature the word surety/ ; — 
Held, that he must be treated as surety. PeopU^s 
Bank v. Peirsons, 30 Vt. 711. Otherwise, in 
like case— except that the word surety was not 
added to the signature. Claremont Bank v. 
Wood, 10 Vt. 582. 

22. A promissory note in the terms follow- 
ing: **We, in behalf of the First Methodist 
Episcopal Society in Middlebury, promise," 
&c., and signed by the defendants in the usual 
form without any additions, was held to be, at 
least prima fade, the note of the defendants 
and their personal obligation. Pomeroy v. 
Blade, 16 Vt. 220. 



23. The purchaser of the plaintiff's goods 
of the plaintiff's factor gave his note therefor 
payable to his own order, and simultaneously 
indorsed it in blank. Held, that this was in 
effect a note to the plaintiff, and not to the 
factor. Blackman v. Green, 24 Vt. 17. 

24. The validity of a negotiable promissory 
note, or the payee's title thereto, is not im- 
peached by the fact that it appears to have 
been indorsed in full to a third person, but 
with such indorsement erased. Tappan v. ITut- 
tin^, Brayt. 137. 

25. In cases of promissory notes and bills 
of exchange, a promise to the agent, naming 
him and not his principal, although the word 
agent, or cashier, be added to his name, is 
a promise to the agent as an individual, and 
the addition is simply descriptive of the person. 
Johnson v. CatUn, 27 Vt. 87. 

26. A negotiable promissory note given for 
a patent right, without the words, "Given for 
a patent right" inserted, as required by Stat. 
1870, No. 68, is good in the hands of a bona fide 
holder for value, who takes it before maturity 
without notice of what it was given for. Pendar 
V. Kelley, 48 Vt. 27. 

27. So, it is good without these words in 
the hands of an assignee, though with notice of 
the consideration, if the patent right was good 
and formed an adequate consideration for the 
note,— the statute not declaring such note void, 
but being designed only to prevent the transfer 
to innocent and bona ^<2e purchasers. Streit ▼. 
Waugh, 48 Vt. 298. 

28. Oondition. Where a note was given, 
subject to the condition that it should not be 
enforced unless there should be a failure of title 
in C to certain lands by him mortgaged ; — 
Held, that the question of title could be deter- 
mined in an action on the note, so far as re- 
spected the obligation of the note. Beed v. 
Field, 15 Vt. 672. 

29. On demand. There is no difference 
between a note payable "when demanded," 
and on demand. In either case, the note is due 
immediately, and may be sued without demand, 
and the statute of limitations begins to run 
from its date. Kingsbury v. Butler, 4 Vt. 458. 

30. A note given by one who is a constable, 
to an attorney, made payable "in oflacer's fees, 
as constable," without more, is by legal con- 
struction payable on demand or on request. 
ThraU V. Mead, 40 Vt. 540. 

31. Grace. A note dated Aug. 25 and pay- 
able, with grace, four years from date, falls 
due Aug. 28. Bipley v. Greenleaf 2 Vt. 
129. 

32. Place of payment. Where a prom- 
issory note is made payable generally, no par- 
ticular place of payment being named therein, 
the place where it was made is the place of pay- 
ment, without regard to the residence of the 



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parties or the place of date. Blodgett v. Durgin, 
82 Vt. 861, and see Bryant v. Edttm, 8 Vt. 825. 

33. Where a note is made payable at a par. 
ticular place— as at a bank— the holder may re- 
cover against the maker for non-payment, with- 
out averring or proving a presentment and de- 
mand. A depoirit of the money there, when 
due, would be a payment of the note. Hart v. 
Oreen, 8 Vt. 191. 

34. A note made payable to (not at) a bank, 
like a note payable to an individual person, is, 
whether negotiable or not, payable wherever it 
may be in lawful custody. Bank of Newbury 
V. Richards, 85 Vt. 281. 

35. Oonsideration. The compromise with- 
out fraud of a doubtful claim, or contingent 
liability— as the settlement of a bastardy prose- 
cution — is a sufficient consideration to support 
a promissory note, and it cannot be avoided by 
proof that the maker was not in fact or law 
originally liable. Holconib v. 8timp$on, 8 Vt. 
141. 

36. Chancery will not relieve the maker of 
a promissory note given to compromise a pend- 
ing action for slander, where it does not appear 
that the action was maliciously brought, or 
that there was such overreaching and fraud on 
the part of the payee as makes it unconscion- 
able for him to retain the note. Parin v. Dex- 
ter, 15 Vt. 879. 

37. Information given in good faith to a 
party litigant, and disclosing the names of im- 
portant witnesses in his suit, may be a good 
consideration for a note. Chandler v. Mason, 
2Vt. 198. 

38. Tlie consideration of a note was a quit- 
claim deed of land of which the grantor had no 
title, but of which he fraudulently pretended 
to hav^ title. Held, a good defense to the note. 
Hawley v. Beeman, 2 Tyl. 288. 

39. A note given for a patent right may be 
defended against, on the ground that the patent 
was void by reason of its not being for a new 
invention, although the patent remains unre- 
pealed« and although the pretended patent was 
conveyed by deed with covenant. Parrot v. 
Famsworth, Brayt. 174. 

40. The right of raising money by a lottery, 
once granted by the State, but' dormant for 
about thirty years and without regularly ap- 
pointed managers, was held not to furnish a 
good consideration for a note given for a pur- 
chase of the right. Rogers v. Hough, 4 Vt. 172. 

41. A promissory note, the only considera- 
tion of which, however expressed, is love and 
affection, cannot be enforced at law or in equity 
against the maker or his estate. HoUey v. 
Adams, 16 Vt. 206. 8mith v. Kittridge, 21 Vt. 
288. 

42. A and B executed, each to the other, a 
note of $2,000, and placed the notes in the 
hands of a third person under a condition, that 



if A did not drink more than three glasses [of 
liquor] a day during his natural life, B's note 
was to be obligatory ; but if A drank more than 
that number, then his note was to be in force. 
A forfeited the condition [of course] and his 
note was delivered to B by the holder. Held, 
that the note could not be enforced. Conant v. 
Jackson, 16 Vt. 386. 

43. L, being indebted to the plaintiff, pro- 
cured U to sign a note with him, as his surety, 
running to the plaintiff, payable in 60 days, 
which the plaintiff, received in payment of L*s 
debt. In procuring the signature of H to the 
note, L represented to him that he wished to 
use the money in an operation that he could 
make immediately profitable, and he had found 
a friend who would let him have the money on 
the note. L was wholly destitute of property, 
insolvent, and so remained. U signed the note, 
relying upon these representations and that L 
would realize from his operation and pay the 
note. In an action against L ; — Held, that he 
was liable on the note. Qmnn v. Hard^ 48 Vt. 
875. 

44. Held, also, there being nothing in the 
facts to create a suspicion of notice to the plain- 
tiff of any fraud, or any suspicion, of bad faith 
on his part, that it was for the defendant, if he 
imputed any such thing, to prove it. lb, 380. 

45. The legal intendment is, that the payee 
of a note takes it upon the faith of the persons 
whose names appear upon it as makers. Smith 
V. HiU, 45 Vt. 90. 

46. Illegal. A note given in whole or in 
part for the compounding of penalties or sup- 
pressing of a criminal prosecution is void, the 
consideration being illegal. Hinesburgh v. ifum- 
ner, 9 Vt. 28. Woodruff v. Hinman, 11 Vt. 
592. Boteen v. Buck, 28 Vt. 308. 

47. A note given for the suppression of a 
criminal prosecution for obtaining goods by 
false pretences, is upon an illegal consideration 
and void ; and this, although the representation 
that such prosecution had been commenced was 
false, but was acted upon as true, and although 
the note given is only for the amount of the 
debt justly due. Botten v. Buck, 

Further as to consideration, see Contbacjt, I. 

48. Ghiaranty of genuinene^^. A person 
giving a security in pajrment, or procuring it to 
be discounted, vouches for its genuineness ; but 
this rule has not been extended to the case 
where the party, when receiving or discount- 
ing the paper, is presumed* from his relation to 
it to bave the means of correct knowledge as to 
its genuineness, or where it has been kept an 
unreasonable time without notice to the other 
party of its spurious character. Bank of 8t. 
Albans v. Farm. A Mech. Bank, 10 Vt. 141. 
11 Vt. 520. 19 Vt. 206. 

49. On the sale of a promissory note, though 
indorsed ** without recourse," a warranty of its 



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validity is implied. Hannum y. Biehardsan^ 
48 Vt. 508. 

50. Becognition. The indorsement of part 
payment upon a note by the holder, without 
proof of actual payment, has no tendency to 
prove the maker's recognition of the validity of 
the note. Brown v. Munger^ 16 Vt. 12. 

51. Where the purchaser of property, for 
which he has given his promissory note, insists 
upon holding the property under his purchase, 
this operates as an affirmance of the contract in 
all its particulars, and he cannot question either 
the validity or the amount of the note. Hoflr- 
ringUm v. Les, 83 Vt. 249. 

52. Negotiability of notes. An action 
does not lie in favor of an assignee of an instru- 
ment, in form a negotiable promisssory note, 
but sealed — it being a specialty. Read v. Yowng, 
1 D. Chip. 244. 

53. A note payable to order, or bearer, in 
current bills, cannot be sued in the name of an 
indorsee — the same not being payable *' in 
money." Collins v. Lincoln, 11 Vt. 268. 

54. A note was made payable to **M, or 
bearer, on demand, after a lease shall be given 
up from M to O, dated," &c. In the absence 
of any proof as to the length of time the lease 
was to run ; — Held, that the note was payable 
upon a contingency, and therefore not negoti- 
able, and could be sued only in the name of M. 
Dwtner v. Tucker, 81 Vt. 204. 

55. The negotiability of a note or bill, or 
certificate of deposit, is not destroyed by a con- 
tingency wliich depends on an event which 
necessarily must happen, so that the only con- 
tingency, or uncertainty, is as to time ; nor, if 
the contingency, as to time of payment, de- 
pends on an act to be done by the holder in 
reference to the instrument itself, to hasten or 
fix the time of payment ; as if made payable a 
given numl)er of days after presentment and 
demand. Jn such case, the instrument imports 
an abmlute indebtedness. Pfck, J., in JSmilie 
V. SUnms, 39 Vt. 315. Bfllotrs Falls Bank v. 
Rutland Co. Bank, 40 Vt. 877. 

56. But where the contingency is collateral 
to the instrument, and depends on an act to be 
done, on the performance of which the liability of 
the party sought to be charged depends, it is not 
negotiable ; — and so held, where a certificate of 
deposit, in form negotiable, was made payable 
on the return of a certain outstanding guaranty, 
given by the signer of the certificate, of a cer- 
tain note of the payee of the certificate. SmiUe 
V. St^crns. 

56. The plaintiff, as bearer, brought suit 
upon the following note: ** Brandon, March 
14, 1868. For value received I promise to pay 
Barzillai Davenport, or bearer, seventy-five dol- 
lars, one year from date with interest annually ; 
and if there is not enough ];ealized by good 
management in one year, to have more time to 



pay in the manufacture of the plaster bed on 
Steam's land. S. A. Capron." Held, that the 
note was payable in money, and not upon a 
contingency but at all events, and was negoti- 
able ; the uncertainty as to time of payment 
being made certain by the law, viz : reasonable 
time after the expiration of the year, ** if there 
was not enough realized." Capron v. Capron, 
44 Vt. 410. 

57. Deposit certificate. A certificate of 
deposit made payable to the order of the depo- 
sitor, *'on the return of this certificate,** or "on 
the presentation of this certificate properly in- 
dorsed," is negotiable. Smilie v. Stevens, 89 Vt. 
316. Bellows Falls Bank v. Rutland Co. Bank, 
40 Vt. 377. 

58. Oomity order. An order drawn by 
the judges of the county court upon the county 
treasurer, payable to A B, or order, is not nego- 
tiable so as that an action will lie upon it in the 
name of an indorsee. Hyde v. Franklin County, 
27 Vt. 185. 

59. Town order. A town order, negoti- 
able in form, was held negotiable in Balrymple 
V. Whitingham, 26 Vt. 845. Cook v. WinhaU, 
48 Vt. 484. Contra, Taft v. Pittsford, 28 Vt. 
288. 

60. Time of negotiating, &c. A note 
originally negotiable ceases to be so by the 
death of the maker and an adjudication there- 
on by the commissioners. Ja/rvis v. Barker, 
8 Vt. 445. 

61. As it relates to the negotiability of notes 
payable on demand, and in questions between 
the indorsee and indorser, and between the in- 
dorsee and the maker, they are to be considered 
as payable in a reasonable time ; and what is a 
reasonable time is a question of law to be decid- 
ed by the court, on the facts which may lie found 
by the jury. Dennett v. Wyman, 13 Vt. 4a5. 

62. The defendants were partners, and K, 
one of them, furnished money to be used in the 
partnership business and took a note therefor, 
payable to himself or order, signed by himself 
and the other defendants individually. K*s 
wife became owner of the note and sent it to 
the plaintiff by K for collection, and K indors- 
ed it to the plaintiff for collection merely. K 
made no defense. Held, that the plaintiff could 
recover against all the defendants. Ormshee v. 
Kidder, 48 Vt. 361. 

63. Place of payment— Lex lod. A pro- 
missoiy note payable generally, that is, where 
no particular place of payment is mentioned, 
is to be treated as a note of the place or coun- 
try where made, and to be payable there; and 
the rights, duties and obligations growing out 
of it, and matters in discharge of it, are to 
be determined by the laws of that place, or 
country. Peek v. Hihbard, 26 Vt. 698. 

64. The liability of the maker of a promis- 
sory note and to what person liable, whether the 



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payee, indorsee, or a creditor under an attach- 
ment by the trustee process, is to be determined 
by the laws of the State which determine the 
obligation of the contract. Emer&on v. P<U- 
ridge, 27 Vt. 8. CJiaw v. Hought^on, 16 Vt. 
694. W(n'den v. N<mr9e, 86 Vt. 766. Wheeler 
V. Winn, 38 Vt. 122. 

65. If the tdtus of the debt is here, the sub- 
ject matter being within this jurisdiction, the 
validity and effect of a judgment, wherever 
pleaded in defense, would be determined by 
our law, and not by the law of the foreign 
forum. So held as to an attachment by trustee 
process. lb. See Baylies v. Houghton, 16. Vt. 
626. 

66. The maker, resident in this State, of a 
negotiable promissory note drawn and made 
payable in this State, though to a resident citi- 
zen of another State, may be held as trustee of 
the payee under the trustee process. Chase v. 
Houghton, 16 Vt. 694. 

67. This is so, although, by the laws of the 
State where the payee resides, such paper is 
not subject to the trustee process, and although 
the payee may have transferred the note before 
Its maturity to another resident citizen of that 
state, if the indorsee fail to give notice of such 
transfer to the maker before service of the trus- 
tee process. Emerson v. Fatridge, 27 Vt. 8. 
Worden v. Nmirse, 86 Vt. 766. Wheeler v. 
Winn, 88 Vt. 128. 

68. So, under like circumstances, where no 
place of payment was specified in the note, but 
the note was executed and delivered in this 
State, for a debt contracted in this State, and 
in part settlement of a business which continu- 
ed down to the service of the writ ; — Held, that 
the note must be taken to be payable in this 
State ; that the situs of the debt was here, and 
the law of this State controls ; and the maker of 
the note was held chargeable as trustee of the 
payee. Worden v. Nourse, 

69. A negotiable promissory note, executed 
by a citizen of this State in the State of Massa- 
chusetts, and payable and delivered to a citizen 
of that State, but without place of payment 
specified, was held, by intendment, as payable 
in Massachusetts, and not subject in this State 
to attachment by trustee process for the debt of 
the payee, it being exempt from such process by 
the law of Massachusetts. Baylies v. Houghton, 
16 Vt. 626. Approved, Worden v. N(mrse, 86 
Vt. 760 ; but the place of execution ought not 
to be decisive. Peck, J, lb. 

70. Where a promissory note was executed 
in the State of New York between parties resi- 
dent there, and was there negotiated while cur- 
rent, but was paid by the maker before maturi- 
ty, and suit was afterwards brought thereon in 
this State in the name of the bona fide holder 
for value y—Held, that the law of New York 
furnished the rule of decision: and that the 



maker could not set up such payment in de- 
fense, although by the law of this State, as it 
then was, such pajrment would have been a de- 
fense if this had been a Vermont contract 
Harrison v. Edtcards, 12 Vt. 648. 

71. Where a promissory note was executed 
and dated in the State of New York and made 
payable generally with interest, and from the 
circumstances attending the transaction it ap- 
peared reasonably certain that tbe parties con- 
templated and understood that it was to be paid 
in Vermont ; — Held, in an action by an assignee 
who took the note overdue, that interest should 
be cast at the Vermont rate, six per cent. 
Austin V. Imus, 28 Vt. 286. [The circumstan- 
ces were these : The payee, residing on his 
farm in Addison, Vt., sold the farm to the 
maker, then residing at Moriah, N. Y. The 
deed of the farm and this mortgage note with 
others given therefor, were executed and dated 
at Moriah, the payee, by the deed, reserving 
the use of part of the dwelling house on the 
farm, and part of the fruit, for himself and fami- 
ly, for a time extending beyond the maturity of 
the notes ;— the note read: " For value received 
in Moriah," &c.] 

72. The law of the place of payment of a 
promissory note determines as to days of grace. 
Blodgett v. Durgin, 82 Vt. 861. Bryant v, 
Edson, 8 Vt. 826. 

73. The plaintiff residing in New Hamp- 
shire, sold to D in Massachusetts where he re- 
sided, cattle, and took D's note therefor dated 
in Massachusetts, payable generally in 16 days 
from date. The plaintiff brought the note to 
Vermont where the defendant resided, and the 
defendant there signed it. Held, that the note 
was payable in Massachusetts, and the defend- 
ant was entitled to grace under the law of Mas- 
sachusetts. Bryant v. Edson. 

74. Upon notes and drafts drawn in this 
State and payable in New York the current 
rate of exchange, as customary and legal in 
that State, was allowed in making up the judg- 
ment. Farmers' Bank v. Burchard, 88 Vt. 
846. 

Further as to the kno of place, see Con- 
tracts, II. Intkbest, 27 and seg, 

II. Pbbsentmknt and Acokptanck of Bills. 

75. The holder of a bill of exchange made 
payable in any specified time after sight, or 
aJXer demand made, must present it for accept- 
ance within a reasonable time ; but where the 
bill is made payable at a given time from the 
date, he is not bound to present it for accept- 
ance until the day named for payment. Bank 
of Bennington v. Raymond, 12 Vt. 401. 

76. There is no rule requiring that a bill of 
exchange must be actually shown to the drawee, 
in order to a valid and binding acceptance. It 



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is enough, if, when applied to for acceptance, 
he is enabled by seeing the bill, or otherwise, 
to give an intelligent answer. Fisher v. Beck- 
wUh, 19 Vt. 31. 

77. A contract to pay an order to be drawn 
upon a party, binds him to pay it according to 
the contract, and he cannot change it by a 
qualified acceptance of the order when present- 
ed. Hauns v. Ortffln. N. Chip. 42. 

78. A parol acceptance of a bill of exchange 
is binding. Fuher v. Beekwithy 19 Vt. 31. 
Bank of Butkmd v. Woodruff, 34 Vt. 93. Ar- 
noid V. Sproffue, 34 Vt. 402. 

79. At common law a parol or oral accep- 
tance of a bill is binding. It is not within the 
statute of frauds, nor is it void for want of con- 
sideration ;— for the common presumption is, 
that the bill was drawn on account of some in- 
debtedness from the drawee to the drawer, 
and so the acceptance is an undertaking by 
the drawee to pay his own debt. Fisher v. 
Beekwith, Arnold y. Sprague, 

80. A parol acceptance of a draft is binding ; 
and such acceptance, varying the time of pay- 
ment from the time specified in the bill, is as 
binding as if absolute according to the terms of 
the bill, if the holder receives this as an accep- 
tance. Vt. Marble Co. v. Mann, 86 Vt. 697. 

81. The defendants, residing in New York, 
were drawees of two bills of exchange to which 
the drawer and indorser were parties only for 
the accommodation of the drawees. The de- 
fendants presented the bills to the plaintiffs 
agent resident in New York to be forwarded by 
him to the plaintifTs bank in Vermont for dis 
count for their use, assuring such agent that the 
bills should be paid, but they did not accept the 
bills in writing, as required by the statute of 
New York. The agent presented the bills at 
the bank in Vermont, and upon his report of 
what had taken place between him and the de- 
fendants in New York, the bank discounted 
the bills, and the proceeds were sent to the de- 
fendants in New York and were used by them. 
Held, that the plaintiff was entitled to recover 
upon the common counts as for money loaned, 
treating the bills as collateral security ; — also, 
temUe, this might be treated as a valid parol ac- 
ceptance in Vermont, and a recovery be had on 
the special count for an acceptance. Bank of 
Sutland v. Woodruff, 84 Vt. 89. 

82. The acceptance of a bill by the drawee 
is prima facte evidence of his having in his 
hands effects of the drawer to the amount of 
the bill. Hence, such acceptance and payment 
will not, of themselves, sustain a colint in as- 
sumpsit against the drawer for money paid to 
bis use. Chittenden v. HurUmrt, 2 Aik. 183. 
19 Vt 84. 

83. A debt due from the drawer of a bill of 
exchange to the payee is a good consideration 
for he acceptance of the bill by the drawee ; 



and the acceptor cannot set up, as against the 
payee, that, as between himself and the drawer, 
there was no consideration. Arnold v. Spra^gue, 
34 Vt. 402. 

84. Where a bill of exchange is drawn upon 
the party personally, and he accepts it in his 
own name, he is bound personally although he 
is in fact agent of another, and this known to 
the payee. lb, 

85. Where a bill for value is accepted, the 
acceptor is the party primarily liable, and the 
drawer is but his surety, or guarantor. The 
release of the drawer, in such case, by the 
holder, is a .relinquishment merely of so much 
of his security, and does not affect the liability 
of the acceptor. Farm, & Meeh. Bank v. 
Bat/ibone, 26 Vt. 19. 

86. Where a bill of exchange was drawn 
and accepted at the time when the drawer had 
an open account with the acceptor for goods 
which the drawer was in course of sending to 
the acceptor for sale, with the apparent under- 
standing that the bill was to be paid by the ac- 
ceptor and charged in the general account ; — 
Held, that the bill should be treated as drawn 
for value, and not as an accommodation bill, 
and imposed upon the acceptor the primary 
obligation to pay it ; and that its legal charac- 
ter, in this respect, was not affected by any sub- 
sequent alteration in the balance of the account, 
nor by the fact, afterwards ascertained, that 
the drawer was indebted to the acceptor at the 
time of the acceptance. lb. 



III. Effect where Note is Given 
Subsisting Claim. 



FOR A 



87. Prima £Ekcie payment. A promissory 
note, either of the debtor or of a third person, 
given in settlement of an account or for a pre- 
vious debt, is prima facie payment, so that a 
suit cannot be maintained upon the original in- 
debtedness, whether the note be paid or not. 
Hutchins V. Olcutt, 4 Vt. 549. Ttyrrey v. Baspter, 
13 Vt. 452. Farr v. Stevens, 26 Vt. 299. Col- 
lamer V. Langdon, 29 Vt. 82. Wait v. Brewster, 
81 Vt. 516. 46 Vt. 460. 

88. Such presumption may be rebutted by 
evidence that the note was cot received as pay- 
ment, and whether so received is a question of 
fact dependent upon the contract or understand- 
ing of the parties. Follett v. Steele, 16 Vt. 30. 
Fare v. Stevens. OoUamer v. Ijangd n. Wait 
V. Brewster. Dickinson v. Kin^, 28 Vt. 378. 

89. Where the creditor accepts either the 
promissory note of his debtor, or of a third per- 
son, in settlement of a previously unsettled mat- 
ter of account or dealing, this, prima fa^le, is 
payment. But if the debtor's note be by mis- 
take defective, so that no recovery can be had 
upon it, or if such note, or bill, of a third per- 
son prove unavailable, without the creditor's 



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fault, he may resort to his original demand. 
T<yrrey v. boater, 13 Vt. 452. 29 Vt. 42 3. 

90. Otherwise in case of fraud, ^. 
Though a promissory note be received in pay- 
ment of an account or debt, yet if so received 
by fraud or misrepresentation, or misapprehen- 
sion as to facts, the creditor supposing other 
parties to be bound by it who are not, or there 
be any infirmity in the note by reason of whicli 
it cannot be enforced, the intention to receive 
it as payment is rebutted, and the creditor may 
sue upon the original debt. Hutchi'M v. OlcuUy 
4Vt. 649. Torrey v. Boater, Farr v. SteveTis, 
26 Vt. 299. Wait v. Brewster, 31 Vt. 516. 
Wemet v. MUsiaqvm lAme Co.^ 46 Vt. 458. 

91. Partnership debt. The taking of the 
note of one member of a firm on account of a 
copartnersliip debt, and receipting the account, 
\% prima facie a satisfaction of the debt against 
the firm. Stephens v. Thompson, 28 Vt. 77. 

92. But this presumption ' may be rebutted 
by proof that the note was not received as in 
satisfaction. Spo/ulding v. ZakjUow Woolen Mill, 
86 Vt. 150. 

93. Payment only in qualified sense. 
Where a promissory note is given for an exist- 
ing debt, the debt still exists although evidenced 
by the note. In an action for the collection of 
the debt the creditor, in form, is confined to his 
remedy on the note ; and in this sense, and for 
this purpose, it is often said in this State that the 
giving of a promissory note for an existing debt is 
prima fade payment. But it is not a payment 
in the sense of extinguishing the debt so as to 
discharge the creditor's claim upon collateral se- 
curities for the original debt, unless so agreed. 
Pinney v. Kimpton, 46 Vt. 80. 

94. Taken as a security. Where a note 
is taken for an account, but not as payment, a 
recovery can be had upon the account without 
a surrender of the note, provided the note re- 
mains in the custody or power of the party. 
But if negotiable, and it has been negotiated, it 
must be surrendered before the plaintiff can 
have execution upon his judgment. Street v. 
Mall, 29 Vt. 166. 

95. A promissory note taken in payment of 
a pre-existing debt, as a former note, is taken 
upon a valuable and valid consideration ; and 
it is not essential to payment, that the former 
note should be surrendered. Diaon v. Dixon, 
31 Vt. 450. 

96. New York law. By the law of New 
York the taking of a note, either of the debtor 
or of a third person, for a pre-existing debt, is 
no payment, unless so expressly agreed. Ros- 
seau V. CuU, 14 Vt. 83. Street v. HaU, 29 Vt. 
165. 

97. The defendant's account with the plain- 
tiffs was settled by giving therefor the note of 
a third person, and the plaintiffs receipted the 
bill as follows: *' Received payment by D. 



Piatt's note at three months, payable at Missis- 
quoi Bank." The whole was a New York trans- 
action. Held, that the receipt, by the law of 
New York, imported nothing more than that 
the plaintiffs had received the note, which, if 
paid, would be payment of the accoimt. Street 
v. Hall, 

98. The plaintiff had an account against the 
defendants, H & M, as partners, also one 
against H individually, and another against H 
& Bro., partners, and settled them all with H, 
by taking his individual note therefor, payable 
in four months. M objected to the settlement 
of H. & M's account in that way, preferring 
that it should be kept separate, and to pay their 
own debts ; but tlie plaintiff insisted, for the 
reason that it stood on the ledger to M's ac- 
count and that he was acquainted with H and 
was not afraid to trust him. The plaintiff cred- 
ited the note received and balanced all the ac- 
counts so settled, and H charged H & M the 
amount of their account so included in the note. 
Two months afterwards, M requested the plain- 
tiff to send him a statement of his account 
against the then late firm of H & M, and the 
plaintiff sent one embracing only those items 
which had accrued since the said settlement. 
The note was not paid. In an action of book 
account against H <& M to recover the items in- 
cluded in the note, the auditor reported the 
special facts, and that he ''did not find that the 
plaintiff did expressly agree to accept the note 
in payment of the account." The court as- 
sumed this to be a New York transaction and 
to be governed by the law of New York, viz., 
that the taking of a note for a pre-existing debt 
does not, prima facte, discharge such debt, but 
that to have such effect, it must appear affirm- 
atively to have been taken with an express 
agreement that it should be in payment, or dis- 
charge, of the debt ; and— Held, that there was 
here such express agreement — that is, an agree- 
ment as matter of fact, the result of the mutual 
understanding and meeting of minds of the par- 
ties as distinguished from an agreement which 
the law implies ; and that the account was paid 
by the note. Robinson v. Hurlburt, 84 Vt. 115. 

99. The giving of a note on settlement otji 
claim does not preclude the party from im- 
peaching the consideration by proof of facts 
then supposed to exist, but of which he then 
knew no evidence. MiddUbury College v. WU- 
Uainson, 1 Vt. 212. 

100. Statute. After judgment upon a pro- 
missory note given for a pre-existing account, 
for the purpose of determining whether the de- 
fendant could be admitted to the poor debtor's 
oath, the contract was held to have been ''made 
and entered into" at the date of the note. Beok- 
with V. Houghton, 11 Vt. 602. 

101. Consideration. Where a bill or note 
is taken as a collateral security for a debt, the 



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antecedent debt is a sufficient consideration for 
the transfer, and the party giving it cannot 
withdraw it at will ; but whether, in such case, 
the consideration is sufficient to cut off all equi- 
ties between the original parties to the collater- 
al, where there is no agreement to give time 
upon the original dehi—qtuBre. Austin v. Cur- 
tis, 31 Vt. 64. See Atkinson v. Brooks, 26 Vt. 
569. 

rV. Transfer. 

1. Mode. 

102. By indorsement. The administrator of 
the payee of a negotiable promissory note may 
indorse the same, and his indorsee may sustain 
an action thereon in his own name, as indorsee. 
Oriswold v. Bttmumj 6 Vt. 269. Ccthoon v. 
Motyre, 11 Vt. 604. 

103. An indorsement of a promissory note 
made and signed with a lead pencil was held 
good. Cflosson v. Stea/ms, 4 Vt. 11. 

104. The words value received are not essen- 
tial to the validity of an indorsement, in order 
to pass the legal property and right of action to 
the indorsee of a note, so long as no terms are 
employed which tend to negate or restrict his 
right—as, by directing payment to be made to 
the indorser's use, or to the use of a third per- 
son ; nor can the maker defend in an action by 
the indorsee on the ground of a mere want of 
valuable consideration for the indorsement, in 
the absence of illegality and fraud. Snow v. 
Conant, 8 Vt. 801. 

106. Where a promissory note payable to A 
B, or order, was indorsed, *' pay to C D " ;— 
Heldy that such indorsement was not restrictive, 
but was in legal effect the same as if indorsed 
to C D, <w order, in terms ; and that the indor- 
see of C D could maintain an action against A 
B as indorser. Hodges v. Adams, 19 Vt. 74. 

106. A promissory note, payable to the or- 
der of the payee, was negotiated and indorsed 
in these words: **Mr. Keyes [the maker], Sir, 
— please pay the bearer the within without re- 
course to the indorser," and this signed by the 
payee. Held, that this was a sufficient in- 
dorsement to enable the assignee to maintain an 
action upon the note in his own name, as indor- 
see. Keyes v. Waters, 18 Vt. 479. 

107. The firm of A, B «& Co., a partnership 
consisting of A, B and C, was dissolved by the 
death of C. The defendant afterwards execut- 
ed a promissory note made payable to "the late 
firm of A, B & Co." B sold his interest in the 
note to A, and then A indorsed the note, with- 
out recourse, in the name of A, B & Co., to the 
plaintiff. Held, (1), that the note was legally 
payable to the surviving partners, A and B ; 
(2), that it could be legally indorsed by use of 
the same names to whom it was in terms made 



payable, " A, B & Co." ; (3), that A being sole 
owner of the note, could sell and indorse it, 
and by such indorsement had transferred the 
legal interest to the plaintiff as indorsee. Doug- 
lass V. Hall, 22 Vt. 451. 

108. An indorsement of a negotiable pro 
missory note in this form: "I warrant this 
note collectable when due," is sufficient to 
transfer the legal title to the note and enables 
the assignee to sue as indorsee by adding to it 
an order to pay to himself ; but this does not 
create the same liability as a general or blank 
indorsement, but is limited and restricted ac- 
cording to the terms used. Benton v. Fletcher, 
31 Vt. 418. Hammond v. ChamberUn, 26 Vt. 
406. See PaHridge v. Davis, 20 Vt. 499. 

109. A blank indorsement of a promissory 
note may be filled up according to the real obli- 
gation created by it. But this is mere form and 
may be made at any time, and, if made wrong, 
may be corrected at any time ; and it is just as 
well if not made at all. Sylvester v. Downer, 
20 Vt. 366. 

110. An indorsement of a blank note, or bill 
of exchange, without sum ,i date or time of pay- 
ment, will bind the indorser to pay any sum, 
payable at any time, which the person to whom 
the indorser intrusts it may choose to insert. 
Mich. Ins, Co, V. Leaventporth, 30 Vt. 11. 

111. By delivery. By force of the com- 
mon law without the aid of any statute, a pro- 
missory note payable to A B, or bearer, may be 
sued in the name of a bona fide bearer, as such, 
without indorsement. Matthews v. Hall, 1 Vt. 
91Q, Skinner, G. J., dissenting. 3Vt. 642. 6 
Vt. 249. lOVt. 162. 

112. The actual possession of a promissory 
note payable to A B, or bearer, is evidence of 
title in the holder, and of such legal interest as 
to entitle him to maintain a suit upon it in his 
own name — the note being transferable by de- 
livery, which is equivalent to an indorsement 
and passes the legal interest. Fletclier v. Fletch- 
er, 29 Vt. 98. Boardman v. Boger, 17 Vt. 689. 

113. Deposit. The case of depositing a 
note with a third person, upon the terms that 
he have one-half he can collect upon it, is not 
understood to vest any interest in the note in 
such depositary, or as precluding the owner 
from collecting it himself, if he have an op- 
portunity. Manwell v. Briggs, 17 Vt. 176. 

114. Be-transfer. Where a party to a pro- 
missory note has, after negotiating it, paid and 
taken it up, he has, as to ail parties prior to tiim 
to whom he has the right to look for payment, 
the same right, and to again transfer it, that he 
had originally. Norton v. Dmener, 33 Vt. 26. 

2. Time of transfer; holder bona fide, for value. 

115. Presumption. In the absence of proof 
as to the time' when a note was indorsed, the 



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BILLS AND NOTES, IV. 



legal presumption is that it was indorsed before 
due and while current. Wcuthbum v. Ramsdelly 
17 Vt. 299. Leland v. Famham, 25 Vt. 558. 

116. So, a note payable to bearer, passing by 
delivery, is presumed to have come to the party 
claiming as bearer, before its maturity. Harri- 
son V. Edwa/rd$, 12 Vt. 648. 

117. Where a note payable on demand ap- 
peared to be indorsed, and there was no proof 
of the time of the indorsement \—Heldy that it 
should be presumed to have been indorsed at a 
time earlier than five months after its date, and 
while current. Leland v. FamJiam^ 25 Vt. 
553. 

118. Note payable on demand. A ne- 
gotiable promissory note, payable on demand 
with interest, indorsed ten months after its 
date, was held past due when indorsed, and 
subject to all defenses that would be available, 
if the suit had been brought by the original 
payee. M<yrey v. Wakefield, 41 Vt. 24. 



119. Such a note indorsed two months after 
date, was held to have been past due when in- 
dorsed. Camp V. Cla/rk, 14 Vt. 887. 

120. Otherwise, where a note payable on de- 
mand was indorsed two days after date. Den- 
neU V. Wyman, 18 Vt.-485. 

121. As relates to the negotiability of 
notes payable on demand, and in questions be- 
tween the indorsee and indorser and between 
the indorsee and maker, they are to be consid- 
ered as payable in a reasonable time, and what 
is a reasonable time is a question of law, to be 
decided by the court on the facts which may be 
found by the jury. lb. 

122. Holder for yalue. Recognized, as 
the law of New York, that a negotiable promis- 
sory note passed in payment or as security of a 
precedent debt, is not received "in due course 
of trade," so as to cut oflf defenses as against 
the payee. RimeU v. Bv4ik, 14 Vt. 147. 

123. Where a negotiable bill or note is as- 
signed and delivered before its maturity, as col- 
lateral security for a debt which is created at 
the time of the assignment, the assignee be- 
comes a holder for value. Grmcold v. Da^is, 
81 Vt. 890. 

124. The purchaser of a negotiable note, 
who gives his own note for the purchase price, 
is a holder for value in the commercial sense. 
A^ms V. 8(mle, 88 Vt. 588. 

125. One who takes a bill or note indorsed 
while current, in payment and extinguishment 
of a pre-existing debt, is regarded as a holder 
for value. Atkinmm v. Brooks, 26 Vt. 574. 
Dinton V. Dixon, 81 Vt. 450. Q:uxnn v. Hard, 
48 Vt. 375. RusseU v. Splater, 47 Vt. 278. 

126. The plaintiff, a tenant in common 
with W, in land, requested W to sell it. W 
sold and conveyed it as his own to the defend- 
ant, and took the defendant's notes therefor 
payable to W*b wife or bearer, and was guilty 



of a fraud in the sale in respect to the boun- 
daries. The plaintiff afterwards conveyed his 
half of the land to W, and received from W 
therefor one of said notes while current, and 
without notice of the fraud of W. Held, that 
the plaintiff was not a holder for value in the 
sense of the commercial rule ; that this was not 
a purchase of the note for value, but a division 
of the avails of the sale of the land, and that 
the note was subject to the defense existing 
against it in the hands of W. Kelly v. Pember, 
85 Vt. 183. 

127. —bona fide. The purchaser of nego- 
tiable paper must exercise reasonable prudence 
and caution in taking it. If the circumstances 
are such as ought to excite the suspicion of a 
prudent and careful man, as to the validity of 
the paper as between the parties to it or the pro- 
priety of the transfer, and the purchaser takes 
it without inquiry, he does not stand in the 
position of a bona fide holder, but in the posi- 



tion of the party from whom he takes it, though 
he may have paid value for it. Roth v. Colmn, 
82 Vt. 125. Gould v. Stevens, 48 Vt. 125. See 
Sandford v. Norton, 14 Vt. 284. 

128. A, one of a partnership doing business 
as wharfingers at Port Kent, N. Y., there made 
three promissory notes in the name of his firm, 
but beyond the scope of the partnership, 
amounting to $2,500, payable to the order of C, 
and delivered them to C without consideration 
and for the accommodation of C in his business. 
C indorsed these notes while current to the 
plaintiff in Troy, N. Y., who discounted them, 
supposing them to be business notes; but C 
was then largely indebted to him, and he knew 
C to be insolvent. In purchasing the notes he 
relied almost entirely upon N, who, as he was 
informed and the fact was, was one of the firm 
and owned considerable property and lived at 
Burlington, Vt., and the plaintiff did not know 
the responsibility of the other members of the 
firm. He made no inquiry as to N*s knowl- 
edge of the making of the notes, nor whether 
they were business or accommodation notes. 
In an action upon the notes the referee reported 
the above facts, and added: **The referee is of 
opinion from the facts here found and submit- 
ted, that the plaintiff ought, in good faith 
towards N, to have inquired before taking these 
notes of C, whether N had authorized the mak- 
ing of them, and was wanting in due and rea- 
sonable diligence in not making any inquiry 
of N, or C, whether the same were accommoda- 
tion notes merely, and, if so, whether they were 
authorized by the defendant." Held, that this 
statement of the opinion of the referee was to 
be treated as a finding of the fact of a want of 
due care and diligence on the part of the plain- 
tiff in the purchase of the notes, and as such 
was conclusive ; that the special facts detailed 
legally tend to support such finding of the re- 



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101 



feree, and that the plaintiff could not recover 
against N. Moth v. Golmn. 

129. The plaintiff purchased, before due, a 
n^otiable promissory note, at a discount of 
#50, of a stranger who professing to be the 
payee's agent. He refused to guaranty pay 
ment of the note, but the plaintiff knew the 
maker, and that he was apparently good. 
He did not know the payee, and had no com- 
munication with him, nor with the maker, 
nor inquired as to the consideration of the note, 
but supposed there was no defense to it. The 
note was in fact without consideration. In an 
acti<»i upon the note, the court directed a ver- 
dict for the plaintiff. Held erroneous; that 
these facts were sufBcient to put the plain 
tiff upon inquiry, and that the case should 
have been submitted to the jury, to determine 
whether the plaintiff, on reasonable inquiry, 
could have ascertained that the note was with- 
out consideration. Omild v. SttoeTis, 48 Vt. 
125. 

130. Consideration of indorsement. The 
indorsement of a negotiable promissory note, al- 
though as collateral security for a smaller sum 
due, is irrevocable, and vests the title in the indor- 
see, and he may recover against the maker the 
whole amount of the note, holding the surplus, 
after payment of his claim, in trust for the in- 
dorser ; and, in such suit, the maker cannot set 
up in defense any claims of the indorser against 
the indorsee in respect to the note, the maker 
being a stranger thereto. Ta/rhell y.Sturt&canty 
26 Vt. 518. 

131. The maker of a note cannot defend an 
action upon it by an assignee, on the ground 
that the assignee took it of the payee in pay- 
ment for liquors sold him in violation of law. 
StreU V. Waugh, 48 Vt. 298. 

8. Sffeet 08 to miUing off defen$e» and equities. 

132. Statute of 1798. Where the maker 
(rf a promissory note, payable to A B, or bear- 
er, is sued by one as bearer^ no demand can be 
pleaded in set-off except a demand against the 
I^ntiff in the action ;— distinguished from the 
case of an action by^ an indoriiee under the Stat. 
of 1798. Parker v. KendaU, 8 Vt. 540. 

133. The statute of 1798, allowing indorsees 
of notes to maintain actions thereon in their 
own names, had a proviso securing to defend- 
ants such rights of set-off as they had against 
the original payee before notice of the indorse- 
ment The Stat. Nov. 17, 1886,' repealed this 
proviso, but provided that the act should not 
impair anff right whieh had acorued under the 
former act. Heldy that the right of set-off as 
against the original payee, for a breach qf the 
covenant against incumbrances before the pass- 
age of the act of 1886 and before notice of the 
assignment, waa saved by that act, and that 



this right extended to payments in extinguish, 
ment of the inciunbrance made after the pass- 
age of that act, and after notice of the assign- 
ment. Alden v. Pa/rkMll, 18 Vt. 206. 

134. While the statute of 1798 was in force, 
allowing the maker of a note to make the same 
defense against an indorseeas against the payee, 
the defendant gave his negotiable note, payable 
in one year, to J, and received therefor from J 
a deed, and a written agreement to deliver up 
the note to the defendant whenever the defend- 
ant should re-deed or deliver said deed to him, 
which should be in full payment of the note, 
and the note be void. J indorsed the note to 
the plaintiff before due and absconded. Upon 
notice thereof, the defendant exhibited the con- 
tract to the plaintiff and offered to rescind the 
trade, and to re-deed, and insisted on his right 
to do so. The plaintiff declined to take a con- 
veyance, and the defendant procured the deed 
to him to be recorded. Held^ that this was a 
defense to the action by the indorsee. OoodaU 
V. Rich, 18 Vt. 602. 

135. Notice given by the payee of a note to 
the maker, that he had indorsed it, is sufficient 
notice under the statute of 1798 to protect the 
indorsee against any after payment or credit to 
the payee. Stewart v. Ba/mum, Brayt. 178. 

Vt. 704. 

136. At common law— Transfer before 
due. In an action by the holder against the 
maker of a promissory note made payable to 
bearer, and presumably transferred before due ; 

Held, that a payment made before the note 
fell due, but not indorsed, could not be shown 
in defense. Potter v. BartUtt, 6 Vt. 248. 

137. By WilUams, C. J. It is not necessary 
for the holder to show that he paid any consid- 
eration for the note, unless the maker can in 
some way impute force or fraud to him, and 
the note is not subject to any offset or equitable 
considerations between the original parties 
thereto. If the maker shows that the note was 
put in circulation by fraud or force and throws 
suspicion upon the title of the holder, or shows 
that he took it after it became due, he may 
compel the holder to prove that he paid a con- 
sideration for it, or took it in the regular course 
of business. lb, 

138. Where a negotiable promissory note 
has been assigned before due, the payment of it 
to the payee, though made in good faith and 
without notice of the assignment, will not avail 
against the holder. In such case, if the maker 
does not find his note in the hands of the payee 
when it falls due, he should presume, as the 
law presumes, that it has been transferred, and 
should pay it when and where he finds it. No- 
tice of such assignment is required for no pur- 
pose, except, under the statute, to protect the 
note from attachment by trustee process for the 
debt of the payee. Oritmld v. i><ww, 81 Vt. 890, 



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139. Tlie maker of a negotiable promissory 
note became surety for the payee upon another 
note, and promised to pay the latter before no- 
tice of the transfer of the first, but paid the 
second after such notice. Held, that such pay 
ment could not be applied in set-o£f as against 
the first in the hands of the indorsee. Shertoood 
V. FraneU, 11 Vt. 204. 

140. The indorsement of a negotiable prom 
issory note, for a valuable consideration while 
current, by the payee thereof who holds the 
same in trust, will pass a good title, as against 
the cestui que trust, to an indorsee who has no 
notice of the trust. Kepes v. Wood, 21 Vt. 881. 

141. Illegality, fraud, duress, want or fail- 
ure of consideration, is no defense to a negotia- 
ble promissory note negotiated before due, and 
in the hands of a bona fide holder for value. 
Pmrers v. BaU, 27 Vt. 662. 

142. Knowledge of defense. A promis- 
sory note assigned to a party with knowledge 
of its consideration, though taken before due, 
is subject to any defense, as respects the con- 
sideration, which might be made to it if taken 
when overdue. Thrall v. HorUm, 44 Vt. 386. 

143. The consideration of a promissory note 
was land sold, and the note was assigned by 
the payee, while current, to the plaintiff hav- 
ing knowledge of the consideration. Held, 
that a suit then pending against the payee, 
which affected the title of the land, was not con- 
structive notice to the plaintiff, that the consid- 
eration of the note had failed. Sattyer v. PJia- 
ley, 38 Vt. 69. 

144. Burden and order of proof. Where 
the plaintiff sues as indorsee of a note or bill, 
the indorsement in common form imports, 
prima faci£, a bona fide transfer for value, and 
he is not bound to show, in opening his case, how 
he came by the note or bill, even where notice 
to that effect has been served upon him before 
trial. But where the defendant, either by call- 
ing witnesses or cross-examining the plaintiffs 
witnesses, makes out a case upon which none 
but a bona fide holder for value is entitled to 
recover against him, it then becomes incum- 
bent upon the plaintiff to show that he is en- 
titled to the advantage of suing in such a char- 
acter;— as, that he paid value, and that he was 
guilty of no want of ordinary care in taking it. 
Sanford v. Norton, 14 Vt. 228. See Roth v. 
Colvin, 32 Vt. 125. Potter v. BaHUtt, 6 Vt. 
250. 

145. Held, that where a bill has been in- 
dorsed for value before due and without knowl- 
edge that it was an accommodation bill, the 
holder may treat all parties to it as liable to 
him according to their relative positions on the 
bill, and this right is unaffected by any subse- 
(juent knowledge that the bill was given for 
accommodation. Hence, in such case, the re- 
lease of the drawer will not discharge nor' 



affect the primary liability of the acceptor; 
and, by Isham, J., the rule is the same in 
equity; — and, quaere, whether the rule is 
not the same, where the indorsee had knowl- 
edge, at the time he received the bill, that it 
was given for the accommodation of the drawer. 
Farmeri^ & Mechanicff Bank v. Bathbone, 26 
Vt. 19. 

146. Transfer after due. A negotiable 
note not indorsed, but assigned by parol after 
due, is subject to all the equity existing at the 
time in the maker. Foot v. Ketchum, 15 Vt. 
258. 

147. A promissory note indorsed or assigned 
when overdue is subject in the hands of the 
assignee to all equities between the original 
parties arising out of the note transaction itself, 
and to the application of all payments thereon, 
and of any demands due the maker from the 
payee where there was an agreement to that 
effect before the transfer ; — as, an agreement to 
apply another note which the maker held 
against the payee. Britton v. Bishop, 11 Vt 
70 ;— an account found due the maker on set- 
tlement after the note was given. WalMdge 
V. Kibbee, 20 Vt. 548. 28 Vt. 884;— a like 
agreement, made at the time the note was given, 
to apply an existing account, the balance to 
be thereafter ascertained. Pecker v. Sawyer, 24 
Vt. 459. 

148. In an action by the holder of a pro- 
missory note assigned after it fell due by its 
terms, a contract made with a former holder 
to extend the time of payment beyond its 
terms, and beyond the time of the commence- 
ment of the suit, of which the plaintiff before 
he became owner of the note had notice, was 
used as a defense. Paddock v. Jones, 40 Vt. 
474. 

4. Demand and notice to charge iTidorser. 

149. Law merchant. The law merchant, 
2A applied to negotiable promissory notes, was 
held not applicable to the general circumstances 
and situation of this State. Rhodes v. Risley, 
N. Chip. 84. 1 D. Chip. 52. (1791.) 

150. In an action by the indorsee against 
the indorser of a note not negotiable, and in- 
dorsed after due;-— Held, that the defendant 
might prove that it was agreed by parol, at the 
time of the transfer, that he should be liable 
only in the event that the holder should be un- 
able to collect the note by suit against the 
maker. Miner v. Robinson, 1 D. Chip. 392. 

151. The hiw merchant, as applicable to 
demand and notice to charge the indorser of a 
promissory note, was first adopted in Nash v. 
Har\ington, 2 Aik. 9. lb, 265. (1826.) 

152. In general. There roust be due de- 
mand and notice back, to charge an indorser, 
although the maker be insolvent, lb. 



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153. What is reasonable notice to an indor- 
ser of a note in order to charge him, is purely a 
question of law, where the facts are found. Ih. 

154. To charge the indorser of a note, the 
holder must present it for payment on the day 
it falls due and give notice to the indorser of 
non-payment within a reasonable time ; which, 
according to the general rule, if he resides in 
the same place, must be on the same, or, at far- 
thest, by the next day, or, if in a different 
place, by the next post. If the holder gives 
time to the maker, the indorser is discharged. 

WhittUsey v. Dean, 2 Aik. 268. 

155. The indorsement of a note waiving 
nfftiee is not a waiver of demand upon the 
maker ; and if demand be not duly made, the 
indorser will be discharged. Buchanan v. Mar- 
shall, 22 Vt, 561. 

156. Place of demand. A note was dated 
Bennington, Vt., Dec. 29, 1888, payable April 
1, 1840. At the time the note was executed, 
the maker resided at Wrentham, Mass. At the 
time it was indorsed, viz., the spring of 1869, 
he came to Bennington with a son and daugh- 
ter, leaving his wife in Wrentham, and began 
to keep house with his son and daughter, his 
housekeeper, and was engaged in business there, 
and remained there personally until July follow- 
ing, when he returned to Wrentham and con- 
tinued to reside there ever after, but left his 
son and daughter living in the same house, the 
son being his agent and a partner in his business 
at Bennington. Held, that demand of payment 
made at the matiuity of the note, of the daughter 
at the house, in the absence of the son, was suf- 
ficient to charge the indorser, it not appearing 
that the maker had abandoned his residence in 
Bennington, or given up the idea of returning 
to his house there. Sanfard v. Norton, 17 Vt. 
285. 

157. Where a promiwory note, executed in 
the State of New York between parties resident 
there, but made payable at ** Orwell, Vt.," was 
indorsed to the plaintiff who, as the maker 
knew, resided at Orwell ; — qucere, whether 
any formal demand of payment was neces- 
sary to charge the indorser, as the maker had 
no domicile or place of business at or near the 
place of payment; but, if so; — Held, that pre- 
sentation and demand at the Bank of Orwell, 
the most public banking-house, which was 
also the plaintiff's principal place of business, 
were sufficient. AutfUn v. Wilwn, 24 Vt. 630. 

158. A note payable at a bank may be pre- 
sented there for payment at any time during 
banking hours on the day of its maturity, and if 
not paid when so presented, the holder is at 
liberty to treat it as dishonored; and notice 
thereof, given on the same day, will charge the 
indorser. Thorpe v. Peek, 28 Vt. 127. 

159. Where a promissory note was made 
payable **at any bank in Boston;"— ZTfW, that 



demand made at any bank which the holder 
might elect, was sufficient to charge the indors- 
er— the maker having made no election. Brick- 
ett V. Spalding, 88 Vt. 107. 

160. Notice, how giyen. Notice of the 
dishonor of a bill or note, in order to charge a 
party, must be addressed to him at the place of 
his residence, unless he is shown to have a pri- 
vate business place elsewhere. Commercial Bank 
V. Strong, 28 Vt. 816. 

161. Where the defendant resided at Rut- 
land, but was president of a corporation having 
its office at Poultney, and it was not shown 
that he had any place of private business at 
Poultney ;^Held, that notice addressed to him 
at Poultney of the dishonor of a bill of which 
he was indorser, was not sufficient. lb, 

162. The law does not require that the fact, 
that notice to an indorser was seasonably de- 
posited in the postofflce, should be proved by 
a single witness who can swear positively to 
the fact; but all, who had anything to do about 
the matter of depositing the notice, should be 
called. There is no such rule of proof, as that 
the fact must be established by positive evi- 
dence and cannot be left to inference or pre- 
sumption, although the law requires very great 
certainty of proof. lb. 

163. Notice of the dishonor of a bill or note 
addressed to the indorser and directed by mail 
to the town postoffice in the town where he re- 
sides, is sufficient to charge him, notwithstand- 
ing there is another postoffice in the town, 
nearer his residence, and at which he does his 
postoffice business. Bank of Manchester v. 
Slason, 18 Vt. 884. 

164. If the holder of a note does not know, 
and cannot by diligent inquiry ascertain the 
residence of the indorser, it is sufficient to 
charge him if the holder give notice of present- 
ment and non-payment at the first opportunity. 
BlodgeU v. Dwrgin, 82 Vt. 861. 

165. Oase of transfer after due. A note 
indorsed after due is to be treated, as to de- 
mand and notice to charge the indorser, as if it 
fell due on the day when indorsed. Nash v. 
Harrington, 2 Aik. 9. 

166. Where a note was indorsed after some 
months due, the indorser and indorsee living in 
the same village and the maker about two miles 
distant ; — Held, that in order to charge the in- 
dorser, demand should have been made in a 
day or two at the farthest, and notice given to 
the indorser on the same day of the demand. lb. 

167. Indorsement of paper not nego- 
tiable. The assignee of a note not negotiable, 
who takes upon himself to pursue the n.aker in 
the first instance, or the holder of a note in 
trust, must, in order to charge the assignor, de- 
mand payment as in case of a note indorsed, 
and, if not paid, must forthwith attach the es- 
tate of the debtor if to be found, and if not, to 



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attach his body,— unless the maker should ab- 
scond leaving no effects, or become bankrupt. 
Whittlesey v. Dmh, 2 Aik. 263. (1B37.) 

168. The assignee by indorsement of a note 
payable in speciflc property demanded pa3rment 
of the maker at the time and place fixed, but 
without having the note present, and the maker 
refused to pay it. Held, that the indorser was 
therel^' discharged. Eastman v. Potter, 4 Vt. 
313. 

169. As to paper not negotiable and not 
designed for commercial purposes, as an order 
for payment in speciflc articles, a demand of 
payment and notice of non-payment is sufficient 
to charge the drawer, if he has sustained no 
damage in consequence of the demand and no- 
tice not having been sooner made and given. 
Hawktns v. Barney, 27 Vt. 392. 

170. Void note. The indorsee of a note 
void in its creation, as for want of considera- 
tion, may, upon a proper declaration, recover 
of the indorser without proof of demand 
Chandler v. Mason, 2 Vt. 193. (1829.) 

171. Waiver of demand and notice. If 
the indorser with knowledge of the existence of 
facts which discharge him, as want of proper 
demand and notice, promise the holder to pay 
the note, this operates as a waiver of demand 
and notice, and is binding. Blodgett v. Durgin, 
32 Vt. 361. 

172. Such promise is prima fame binding, 
and if the indorser would exonerate himself 
therefrom the burden is on him to prove his 
ignorance of the facts. Nash v. Harrington, 
1 Aik. 39. 

173. Part payment by the indorser, a prom- 
ise to pay, or an acknowledgment of liability, 
after the note becomes due, is prima facie evi- 
dence, not only of notice, but of presentment. 
Bank of U, S. v. Lyman (U. S. C. C), 20 Vt. 
666. 

174. The indorser of a note had notice of 
non-payment, before the expiration of the day 
on which the note fell due, and thereupon 
promised to pay it. Held, that this was a waiv- 
er of further notice. Seeley v. Bisbet, 2 Vt. 
105. 

175. The drawer of a bill, five days before 
its maturity, gave the holder a mortgage to se- 
cure the payment of it four months afterwards. 
Held, that this was a waiver of demand on the 
acceptor, and satisfied the usual averment of de- 
mand and notice in a declaration on the bill 
against the drawer. Fa/rtn, A Mech. Bank v. 
CatUn, 13 Vt. 39. 

176. A written admission by the indorser of 
a bill, made out of court, that he received due 
notice of dishonor, is evidence of the fact, but 
not conclusive. lie may show that the writing 
was signed by mistake, or under a misappre- 
hension of facts. Commercial Bank v. Clark, 
28 Vt. 325. 



V. Action. 
1. Note payable in specific cluUtels. 

177. Demand. The payee of a note, paya. 
ble in cattle at the house of the maker on a day 
certain, called for the cattle at the time and 
place named, but, at the request of the maker, 
he agreed to defer the payment and call 
another day and take the cattle. In a few days 
after, he did call at the maker's house to take 
the cattle on the note and made known his 
business, but the maker was not at home to 
turn out the cattle. The payee afterwards saw 
the maker and told him he had called for the 
cattle as he had agreed. Held, that it was the 
duty of the maker, after such information, to 
pay the cattle forthwith on the note ; and that 
having neglected so to do for three months, he 
was subject to an action and recovery upon the 
note. Pike v. Mott, 5 Vt. 108. 

178. The payee of a note for so many dol- 
lars payable in hemlock bark on demand and 
dated in February, during the summer follow- 
ing,— the summer being the proper time for 
peeling such bark,— demanded payment of the 
note, of the maker, requesting him to have the 
bark peeled that summer and delivered the next 
winter,— winter being the most convenient time 
for delivering the bark ; all which the maker 
agreed should be done. HeM, that this demand 
was the most appropriate for such a note, and, 
that the maker by failing to answer it as he 
promised, had become liable to pay the note in 
money, and under the common counts in as- 
sumpsit. Bead v. Sturtevant, 40 Vt. 621. 

2. Last note, 

179. Lost or destroyed. A promissory 
note lost or destroyed will not be treated as a 
fnerger of the original consideration, so as to 
prevent a recovery counting upon the original 
indebtedness. Laeell v. Laeell, 12 Vt. 443. 

180. Where a note not negotiable, or, if ne- 
gotiable by being payable to order, not negoti- 
ated, is lost, an action at law may be maintained 
on the note, on proof of its loss, to recover its 
contents. To defeat such action, it should ap- 
pear affirmatively that such lost note was nego- 
tiable and had been in fact negotiated, or else 
was payable to bearer, so as to pass by delivery. 
But if the note is shown to have been negotiable 
and actually negotiated, and so (probably), if 
made payable to bearer, and the evidence shows 
merely the loss of the note and not its destruc- 
tion, the remedy is in chancery, and the court 
will require an indemnity to be given before 
granting relief. lb. Hough v. Barton, 20 
Vt. 455; and see Miller v. But, db Wash. B. 
Co., 40 Vt. 899. 

181. On It bill in equity to enforce th^ 



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payment of a lost promissory note not negotia- 
ble, or, if negotiable, not negotiated, an afflda- 
yit of the loss is essential to the jurisdiction ; 
but not so an offer of indemnity ;— this may be 
left for the defendant to move. If the note 
has been negotiated, indemnity should be re- 
quired. The court, in this case, decreed pay- 
ment of a lost note without an indemnity, and 
where the orator had refused to give one— the 
claim being barred by the statute of limitations 
at the date of the decree. Hopkins v. Adams^ 
20 Vt. 407. 

182. In an action of indeUt4U/uH assumpsit 
brought to recover for a lost promissory note, 
in the name of the original payee, b}"^ a party 
to whom he had transferred his interest ;—Ileld, 
that the fact that the nftmc of the payee was 
written across the back of the note, at the time 
he transferred it, did not prove that the note 
was made payable to order, or bearer, and was 
therefore negotiable. Hough v. Barton, 20 Vt. 
455. 

183. Surrendered. A party may, under 
certain circumstances, recover upon a promis- 
sory note, counting upon the note which he has 
voluntarily given up to be cancelled. EdgeU v. 
Stanford, 6 Vt 551. 

184. If a debtor, by false and fraudulent 
representations as to his solvency, induce his 
creditor to give up his note upon part payment, 
he may still be sued upon it and compelled to 
pay the balance. Monoids v. French, 8 Vt. 
85. 29Vt. 415. 

185. Mode of declaring. It is not 
necessary t/> declare specially on a lost prom- 
issory note, as lost. Viks v. Motdton, 11 Vt. 
470. 

186. Venue. A negotiable note may be 
sued in the town where the indorsee resides, 
although the consideration was for goods sold 
in some other town. (Blade's Stat. c. 12, No. 
4.) JSlUs V. XeUp, Brviyt, 202. 

8. Parties. 

187. FlaintUTs title. In an action upon 
a note, not negotiable, no measure of interest 
in a third person can affect the right of action 
in the name of the payee — he not dissenting. 
Sanford v. Huitley,-\% Vt. 170. 

188. In an action upon a promissory note, 
by one having apparent right to sue, the de- 
fendant is allowed to raise the question as to 
the plaintiff's title only for the purpose of pro- 
tecting himself from a subsequent suit in the 
name of some one having a better title, and 
who has not acquiesced in the present suit. 
HackeU v. KendaU, 23 Vt. 275. 

189. In an action upon a promissory note, 
the defendant cannot contest the plaintifTs ap- 
parent legal title and right to sue upon it, pro- 
vided that the payment, or recover}*^ upon it, 



will bar any further claim on the note by others. 
Fletcher v. Fletcher, 29 Vt. 98. 

190. Where the plaintiff of record is by the 
terms of a promissory note a proper party to 
sue upon it, and assents to the use of his name 
by the real owner for the purpose of the suit, 
the action cannot be defeated by den3ring the 
plaintiff's title, although in fact the note had 
never been delivered to the plaintiff, and his 
name was used in the note without his consent. 
Boardman v. Boger, 17 Vt. 689. Smith v. Bur- 
ton, 8 Vt. 288. Hackett v. Kendall, 23 Vt. 275. 
Bank of Burlington v. Beach, 1 Aik. 62. Keith 
V. Goodwin, 31 Vt. 268. Bank of Montpelier 
V. Joyner, 83 Vt. 481. Bank of Newbury v. 
Richards, 35 Vt. 281. Bank of Middkbury v. 
Binghani, 88 Vt. 633. 

191. And where the real owner has a right 
to use the name of such plaintiff for the pur- 
poses of a suit, the suit cannot be defeated by 
refusing assent to the prosecution ; but an in- 
demnity against costs may be required. Farm- 
ers* d Mechanics* Bank v. Humphrey, 36 Vt. 
554. 

192. The owner and holder of a negotiable 
promissory note may maintain a sujl thereon 
in the name of another who, at the time the 
suit was brought, was neither owner nor holder, 
nor had possession of or any interest in the 
note, but consents that his name be used as 
plaintiff, and produces the note on trial. Aus- 
tin V. Birchard, 81 Vt. 589. 

193. Where a joint and several negotiable 
promissory note had been indorsed in blank, 
and judgment thereon had been recovered 
against one of the signers in the name of a cer- 
tain indorsee ;—Held, that an action lay against 
the other signer in favor of another indorsee 
upon the same indorsement— both suits being 
for the benefit of the payee who made the in- 
dorsement. Sawyer v. White, 19 Vt. 40. 

194. PlaintiiTs interest— legal or ben- 
eficial. No person, although in fact a princi- 
pal or partner, can sue or be sued upon a bill 
or negotiable note, unless he appears upon its 
face to be a party to it. Where a note was 
made payable to ** Samuel Javdon, Esq., cash- 
ier, or order" ;—Held, that an action upon it 
did not lie in the name of the Bank of the U. 
S., of which he was cashier. Bank of U. S, 
V. Lyman {U. S. C. C), 20 Vt. 666. 23 Vt. 
782. 

195. It is the settled law of this State Ccon- 
trary to general commercial law and as held in 
Bank of U. S. v. Lyman, in U, S. C. C, 
supra), that an action upon a promissory note 
may be maintained in the name of the party 
beneficially interested, where the note is in 
terms made payable to his agent — as, treasurer, 
cashier, &c. Rutland dh Burlington R, Co. 
V. Cole, 24 Vt. 33. Arlington v. Hinds, 1 D. 
Chip. 481. Farms, cfc Mechs.* Bank v. Bay, 



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18 Vt. 86. Bank of Manchester v. Bla»on, 18 
Vt. 884. Vt, Central R. Co, v. Claye*, 21 
Vt. 80, and see Perkins v. Bradley, 24 Vt. 66. 

196. The action may also be maintained in 
the name of the person to whom the note is in 
terms and by name made payable. Binney v. 
Plumley, 5 Vt. 600. 24 Vt. 89. Johnson v. 
CatUn, 27 Vt. 87. 

197. Upon a note payable to A, ** guardian 
of B/' the action must be in the name of A. 
W hemlock V. Wheelock, 6 Vt. 488. 

198. An action upon a promissory note pay- 
able to A and B, **Trastee8 of the Newmarket 
and Kingston Wesleyan Academy," was held 
well brought m the name of A and B. Binney 
Y. Plumley, 6 \i, fm, 24 Vt. 89. 

199. An action cannot be sustained by a 
town treasurer, cu such, upon a note given to 
him as *'town treasurer." Hinds v. Stone, 
Brayt. 280. See 1 D. Chip. 481. 

200. The defendant executed his note of 
the following tenor: ** Arlington, Sept. 27, 
1808. For value received I promise to pay 
Luther Stone, Town Treasurer, or his succes- 
sors in office, eighty-four dollars." It was 
proved that Stone was Town Treasurer of Ar- 
lington, and that the consideration of the note 
moved from the town. Held, that an action 
upon the note lay in the name of the town. 
ArUnffton v. Hinds, 1 D. Chip. 481. 5 Vt. 
488. 8 Vt. 395. 21 Vt. 87. 24 Vt. 89. 27 Vt. 89. 

201. A note was allowed against the estate 
of the maker of a promissory note in favor of 
** Andrew T. Hall, President of the Tremont 
Bank." Held, that this was no defense to an 
action against the indorser brought by the Tre- 
mont Bank. Tremont Bank v. Paine, 28 Vt. 
24. 

202. Where one named agent, or cashier, is 
the payer of a bill or note which is accepted or 
given for value, he may, in an action in his 
own name against the acceptor or maker, re- 
cover the sum due upon the common money 
counts.' Johnson v. CatWn, 27 Vt. 87. 

4. Pleadings. 

203. Declaration— suit by payee. In de- 
claring upon a note payable in specific articles 
at a given time and place, it is not necessary to 
aver that the plaintiff was ready at the time and 
place to receive pay, since the maker may dis- 
charge his contract by a tender at the time and 
place, and is bound to do so, whether the payee 
attends or not. Deitey v. Washburn, 12 Vt. 580. 
Barney v. BUss, 1 D. Chip. 399. {Brooks v. 
Page, 1 D. Chip. 840, overruled on this point.) 

204. Where a promissory note, or bill of ex 
change, is made payable at a specified time and 
place, it is not necessary that it should be there 
and then presented, in order to charge the 
maker, or acceptor. If presentment be aver 



red in the declaration, this is surplusage and 
need not be proved. It is matter of defense, 
that the party was ready there and then to pay 
the debt, and on proof of this fact and bringing 
the money into court, he will be discharged of 
the damages and costs, as in case of a tender. 
TerheU v. Downer, 27 Vt. 509. Hart v. Green, 
8 Vt. 191. 16 Vt. 29. 

205. In declaring upon a promissory note, 
it is sufficient to declare simply upon the pro- 
mise to pay contained in the note, without rais- 
ing thereupon a liability to pay and a further 
promise based upon such liability. Binney v. 
Plumley, 5 Vt. 500. 12 Vt. 580. 

206. The defendants were ^immoned '' to 
answer to the Bank of Montpelier, at," &c., "in 
a plea of the case for that the defendants by 
their promissory note dated at Richmond, May 
12, 1858, for value received, jointly and sever- 
ally promised the President, Directors and Com- 
pany of the Bank of Montpelier to pay them 
the sum of five hundred and seventy dollars in 
three months from date, which is unpaid, 
though demanded." This declaration was held 
good on general demmrer. Bank of Montpe- 
lier V. BusseU, 27 Vt. 719. 

207. A declaration upon a promissory note 
payable to A B, or bearer, in which the only 
averment of the transfer and of the plaintiff's 
title was, that the plaintiff 'Ms the bona fide 
owner and bearer of said note," was held suffi- 
cient on general demurrer. White v. Tarbell, 
27 Vt. 573. 

208. Such declaration, not alleging any time 
of pajrment, was held good on general demur- 
rer ; — the presumption being, that the note was 
declared upon according to its terms, and there- 
fore, according to its legal effect, as payable im- 
mediately, or on demand. lb, 

209. In an action upon a joint and several 
promissory note signed by four persons, the 
original declaration counted against the four. 
The writ having been served only on three, 
with a non est return as to the other, the plain- 
tiff filed addditional counts against only the 
three on whom service had been made. On de- 
murrer, the declaration was held ill for misjoin- 
der of counts. Claremont Bank v. Wood, 12 Vt. 
252. 

210. —by indorsee. 'The indorsee of a 
negotiable promissory note may recover against 
the maker under the general money counts. 
Brigham v. Hutehins, 27 Vt. 569 ; and this, 
although he holds the note only in trust for the 
purposes of collection. Chase v. Bumham, 18 
Vt. 447. 

211. Whether an indorsee can recover on 
the money counts in assumpsit against a mere 
accommodation indorser, known to be such 
when the note was negotiated, — gutsre, Anst^ 
V. Burlington, 84 Vt. 506. 

212. In an action by the indorsee, a concise 



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Statement of the indorsement is sufficient ; — as 
that the payee did indorse and deliver the note 
to the plaintiff — this being a technical word 
having in law a distinct meaning. Brooks v. 
£d9on, 7 Vt. 851. 

213. In a declaration as indorsee of a pro- 
missory note indorsed by an administrator, it is 
not necessary to make profert of the letters of 
administration, nor to aver by whom they were 
granted. An averment that the appointment 
was duly made is sufficient. Cahoon v. Moore, 
11 Vt 804. OHmoid v. Bamum, 5 Vt. 289. 

214. In an action by the indorsee of a pro- 
missory note against the maker, the declaration 
averred that the defendant made his note in 
writing payable ** to the order of the Treasurer 
of the Burlington Mill Company, and that said 
Treasurer indorsed said note before payment to 
the plaintiff," &c., not/»therwise describing said 
Treasurer or Mill Company. Upon special 
demurrer, *Hhat said declaration does not set 
forth to whom the said note was made payable, 
nor by whom indorsed," — Held, that it was suf- 
ficient. Perkins v. Bradley, 24 Vt. ^ 

215. Evidence. In an action by indorsee 
against indorser, the declaration averred de- 
mand of payment and notice of non-payment. 
Held, that the declaration was sustained by 
proof of waiver of demand and notice. Farm, 
4b Meeh, Bank v. Day, 13 Vt. 86. 

216. —under general issne. In an action 
upon a promissory note given for the purchase 
of land, the defendant cannot, under the general 
issue, give in evidence the breach of a covenant 
contained in the deed against incumbrances. 
Alden v. ParkhiU, 18 Vt. 205. 

217. Witnessed note. In a declaration 
counting upon a promissory note in common 
form, and adding the common money count, 
the defendant pleaded to the whole action the 
statute of limitations of six years. The repli- 
cation, professing to answer the whole plea as 
to both counts, averred that the action was 
brought to recover only the note mentioned in 
the special count, and that that was a witnessed 
note. On demurrer;— /f^W, that the replica- 
tion was ill, as being no answer to the plea as to 
to the common count. Carpenter v. McClure, 
88 Vt. 375. The plaintiff then entered a nolle 
prosequi as to the common count, and amended 
his replication by averring that the note was 
a witnessed note ;~JIeld, that the defendant's 
plea, as applicable to the common count, fell 
with it, and that the amended replication an- 
swered the plea. 8. C, 40 Vt. 108. 

218. To bring a case within the privilege of 
the statute of limitations of fourteen years, in a 
suit *' brought on a promissory note signed in 
the presence of an attesting witness," the de- 
claration must count specially upon the note. 
If the declaration be in the common counts, a 
plea of the conunon limitation of six years is a 



sufficient bar, though the witnessed note be filed 
as a specification. Lapham v. Briggs, 27 Vt. 
28. Carpenter v. MeChire, 88 Vt. 375. 8. C, 
40 Vt. 108. Bana v. McClure, 89 Vt. 197. 

219. A witnessed note may be counted up- 
on in common form, and, upon a plea of the 
statute of limitations of six years, the plaintiff 
may reply, that it was a witnessed note, and this 
is a good answer to the plea and is no depart- 
ure. Carpenter v. McClure. Bragg v. Fletcher, 
20 Vt. 851. ' 

5. Defenses, 

220. Payment. In an action by the payee 
against the maker of a promissory note made 
payable at a certain day at a certain bank, and 
in a form to be negotiated at such bank, the de- 
fendant offered to prove that the plaintiff told 
him at the time of the execution of the note 
that he might mail the money to the plaintiff 
and he would take up the note for him ; and 
that on the day after the note fell due, he de- 
posited in the mail a letter, containing the mon- 
ey, properly addressed to the plaintiff. The 
county court excluded the evidence offered. 
Held, (1), that the defense was not objectiona- 
ble as tending to vary the terms of the note ; 
that the proposition was a separate and distinct 
matter from the contract described in the note ; 
that being without consideration it was revo- 
cable at will before performance, but that if 
performed, the notJe would have been discharg. 
ed ; that if the money had been mailed in due 
season, its reception woujd have been at the 
risk of the plaintiff. But, (2), not having been 
mailed in season for taking up the note on the 
day it fell due, the risk was the defendant's, 
and that, without showing the arrival and re- 
ception of the money, the note would not be dis- 
charged. Judgment for plaintiff affirmed. 
FolleU V. Eastman, 18 Vt. 19. 

221. It was agreed between the parties to a 
promissory note that the note might be paid by 
paying certain debts of the payee. Held, that 
such payments were a defense to an action 
upon the note by the administrator of the payee. 
Oilson V. Oilson, 18 Vt. 484. 

222. The maker of a negotiable promissory 
note will be protected in paying or settling it 
with a holder who has the apparent legal title, 
where the maker acts in good faith and there is 
nothing to awaken suspicion of the holder's 
title. Bllsfporth v. Fogg, 35 Vt. 855. 

223. It is no defense to an action against 
the indorser of a promissory note, that it has 
been allowed against the estate of the maker, 
nor that the probate court has ordered a divi- 
dend to be paid upon it. Tremont Bank v. 
Paine, 28 Vt. 24. 

224. The defendant gave the plaintiff a 
promissory note, taking back a writing that he 



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was only surety, and that the note was for the 
plaintiff to pay. The parties afterwards 
settled, and the defendant on good consideration 
agreed by parol to pay the note. In an action 
on the note, the defendant set up the writing 
in defense. Heidy that evidence of the subse- 
quent parol agreement was admissible and was 
effective against the writing, to reinstate the 
note according to its terms. Norton v. Downer ^ 
88 Vt. 26. 

225. Statute. The fact that a note was 
purchased for the purpose of putting the same 
in suit and thereby harassing the defendant, is 
not a defense to an action thereon brought in 
the name of the original payee. McOrmsby v. 
Oilman, 24 Vt. 487. (G. S. c. 125, s. 13.) 

226. Note to wife. Where the vendor of 
property takes a note therefor to his wife, from 
whom no consideration moves, it is subject to 
the same defenses as if made payable to himself. 
KeUy V. Pember, 35 Vt. 188. 

227. Failure of conBideration. It is a 
good defense to a note given as pajrment of a 
judgment, that the judgment was afterwards 
set aside on MiMJ/to 9t<«r^to. Dennison y.Brototit 
SVt. 170. 

228. Where the sale of a patent right for a 
mowing machine constituted the sole conmdera- 
tion of a promissory note given therefor; — ffeldj 
that it was a good defense to the note, as a 
total failure of consideration, that the patent 
right was of no value because of a defect in the 
principle of construction, so that the machine 
could not be made to work as a mowing mach- 
ine, although the letters patent were authentic 
and not vacated. Clough v. Patrick, 37 Vt. 421. 

229. WiUiams v. Hicks, 2 Vt. 86, which is 
seemingly contra, criticized and limited. lb, 

230. Where a promissory note was given 
for the patent right of a broad cast seed-sower 
to be used by horse power, and the machine 
was entirely worthless as such; — Held, that 
the failure of consideration was total, although 
it was afterwards discovered that the machine 
was capable of being cut down and varied in 
its construction, so as to be operated by hand, 

, —a substantially different thing, and not that 
for which the purchaser bargained. Craigin v. 
Fowler, 34 Vt. 826. 

231. Partial fsiiliire. A partial failure of 
consideration cannot be set up as a defense pro 
tanto to an action upon a promissory note, 
where the sum to be deducted cannot be ascer- 
tained by computation, but is unliquidated and 
subject to the estimation of a jury. Briggs v. 
Bogd, 87 Vt. 534. WiUiams v. Hicks, 2 Vt. 89. 

Walker v. Smith, 2 Vt. 539. Stone v. Peake, 
16 Vt. 218. Burton v. Schermerhom, 21 Vt. 
289. 27 Vt. 485. Haisams v. Dompier, 28 Vt. 
32. Richardson v. Sanborn, 83 Vt. 75. Har- 
rington V. Lee, 33 Vt. 249. Foster v. Phaleg, 
35 Vt. 309. Farrar v. Freeman, 44 Vt. ( 



232. Where there is a partial failure of the 
consideration of a promissory note — as by fraud 
or misrepresentation — three things must concur 
to have an abatement in the assessment of 
damages, viz : fraud in procuring the note for 
the sum named : an offer to rescind ; and ability 
by oomputettion to fix the amount to be deduct- 
ed. Barrett, J., in Harrington v. Lee. Walker 
V. Smith. Stone v. Peake. 

233. '* If there is such a rule, there ought 
not to be ; it is sustained by no principle of 
policy, convenience or justice." Peck, J., in 
KeUg V. Pember, 35 Vt. 186. Note— This rule 
is now changed by Stat. 1867, No. 51, when the 
suit is between the original parties to the note 
or bill, but not otherwise. Farrar v. Freeman, 
44 Vt. 63. Thrall v. Horton, 44 Vt. 886. 

234. It is not a defense to an action upon a 
promissory note, that it^ consideration, in part, 
and not liquidated, was a piece of land con- 
veyed with warranty, on which was an outstand- . 
ing mortgage whicl» the grantee has since paid. 
Hassams v. Dompier, 28 Vt. 82. 

235. The defendant purchased of the plain- 
tiff a pew in a meeting house, and gave the 
plaintiff his promissory note therefor, and the 
plaintiff agreed to deed the pew to the defend- 
ant in a few days. In an action on the note,— 
Held, that thepUuntiff*s neglect to deed the pew 
was no defense to the note,— for, (1), the pro- 
mises were independent ; (2), the consideration 
had not failed, it being promise for promise, 
and the plaintiff's promise remained; (8), the 
plaintiff's promise was not void by the statute 
of frauds, but good until avoided by him. 
Chapman v. Eddy, 18 Vt. 205. 

236. The defendant gave his note towards 
the purchase of a sawmill conveyed with war- 
ranty, and, after occupying for two years, his 
titled failed but not so as to make him account- 
able for the past use. In an action on the note, 
defense was made that the consideration had 
wholly failed ; but it appeared that the use of 
the premises was of greater value than the note ; 
against which the defendant urged that he had 
made improvements upon the premises to more 
than the value of such use. Held, that the ex- 
pense of only such improvements could be 
reckoned against the value of the use, as were 
necessary to render the use of value."^ Foster v. 
PhaUy, 35 Vt. 303. 



BOND. 



1. What is. The word ** bond '* does not 
necessarily import an instrument under seal. A 
railway bond may be negotiable, and may be 
declared upon in assumpsit as an instrument 
importing a consideration, like a biU or promis- 
sory note, though cfUled in the declaration a 



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10& 



"bond." Ide v. Conn, dk Pass. E. R, Go,, 83 
Vt. 297. 

2. A lost bond of this character was allowed* 
in chancery upon furnishing an indemnity. 
MOUt v. Rut. & Wash. R. Co., 40 Vt. 899. 

3. A bond in these words: **WeABand 
C D are jointly and severally bound, "Ac, 
where signed and sealed by A B, C D, and E 
F, is good against E F. CampheU v. Campbell, 
Brayt. 38. 

4. Delivery. Where a bond contains, in 
the obligatory part, the names of several per- 
sons as sureties, if only a part sign the bond 
and with an understanding and on condition 
that it is not to be delivered until signed by the 
others, it does not become effectual as to those 
who do sign, until the condition is complied 
with, although handed to the obligee by the 
principal signer. Such bond carries notice on 
its face to the obligee of its incompleteness. 
FleUJuT V. AusUn, 11 Vt. 447. 81 Vt. 
818. 

5. Two parties signed a deputy sheriff's 
bond and lianded it to him with directions not 
to deliver it to the sheriff, the obligee, until and 
unless signed by certain other persons, who 
were named also as sureties in the obligatory 
part of the bond. Tlie deputy delivered it to 
the obligee without such additional signatures, 
and after the expiration of the deputy's office 
and after he had become liable for official de- 
fault, the other named sureties signed the bond. 
Held, that the two who first signed were not 
liable thereon, without proof of their consent 
to such subsequent signing and delivery. lb. 

6. Where the probate court, upon the ap- 
pointment of an administrator, determined the 
form and amount of the bond and who should 
sign it, and directed that when so signed it 
might be delivered to one 8, and should be the 
same as if returned to the judge, and the bond 
on the same day was so signefl and delivered to 
8 ; — Held, that it took effect on that day, al- 
though it was not returned to the judge and 
filed in the probate court until 18 days after- 
wards. Clark V. Tab(yr, 22 Vt. 695. 

7. Official bond. A bond taken by color 
of one's office is void, if it contain provisions 
not authorized by law ;— as a jail bond to a 
sheriff, conditioned to behave as a good orderly 
prisoner, pay board, jailor's fees, &c. Lyon v. 
Ide, 1 D. Chip. 46. S. C, N. Chip. 49. 

8. A condition not provided nor authorized 
by law inserted in an official bond is void,— as 
in an administration bond. Probate Court v, 
Matthews, 6 Vt. 269. 

9. A guardian's bond to the probate court 
was field obligatory and effective, although the 
condition was not in its details strictly accord-- 
ing to the provisions of the statute, but pro- 
vided, in general terms, for the faithful execu- 
tion of the ofiSce *'in all parts thereof, accord- 



ing to the rules and directions of the law," &c. 
Probate CouH v. Strong, 27 Vt. 202. 

10. Where a guardian's bond, filed in the 
probate court, was to A B, Esq., ** judge of the 
court of probate," &c., **to be paid unto the 
said judge, or his successor in said office," &c. ; 

Held, that this was an official bond, and was 
in legal effect a bond to the probate court. 
lb. 

11. A like bond to *'the judge of probate" 
of a county in New Hampsliire was held to be 
an official bond to the probate court, and not 
enforcible in this State. Jttdge of Probate v. 
Hibbard, 44 Vt. 697. 

12. AT'w^ftl office. A bank charter re- 
quired an annual election of directors, who 
should hold their offices for one year and until 
their successors should be appointed and quali- 
fied ; and that no director should enter upon or 
discharge any of the duties of his office, until 
his bond had been executed and approved, as 
provided in the charter. M was elected director 
in 1849 &nd gave his bond, with sureties, con- 
ditioned for the due performance of his duties 
as director, ** while he shall be a director of 
said bank." M was annually re-elected and 
acted as a director for several years thereafter, 
but never executed any other bond. In an ac- 
tion upon the bond ; — Held^ that it did not 
cover official defaults occurring after the ex- 
piration of the term of office under the first 
election, viz., one year. State Trca^turer v. 
Mann, 34 Vt. 871. 

13. Action— Pleadings. Where the action 
is founded on a deed, the deed must be de- 
clared upon ; and in such case the plea of nil 
debet is ill on general demurrer. So field in an 
action of debt on a jail l)ond. Dyer v. Cleave- 
land, 18 Vt. 241. 

14. In assigning breaches of the condition 
of an indemnifying bond, it is not necessary to 
aver that the defendant had notice of those 
facts which constitute a breach of the bond. 
Topliffy. Hayes, 20 Vt. 362. 

15. Declaration on a bond of indemnity, as- 
signing breaches : — After oyer, there was a gen- 
eral plea of Tum damnifieatus concluding with a 
verification. Held, well enough on demurrer. 
WiWams v. Willson, 1 Vt. 266. 

16. In debt upon bond, the condition set 
out upon oyer appeared to be. that the defend- 
ant should make his appearance before certain 
arbitrators and pay such sum as they should 
award; and thereupon the defendant pleaded 
no aimrd. Held ill on demurrer, because not 
answering the first of said conditions. North 
V. Johnson, 1 D. Chip. 131. 

17. In actions of a certain class— as covenant, 
or debt on bond with condition— every part of 
the declaration not answered is admitted. Free- 
man V. Henry, 48 Vt. 558. Carpenter v. Briggs, 
16 Vt. 34. 



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BOND.— BOOK ACCOUNT, I. 



18. Pasrments amounting to penalty. 

In an action upon a bond in the penal sum of 
$1,000, conditioned to pay tlie obligee during 
his life the annual sum of $100 ;~Held, that 
the punctual payment of the first ten yearly 
sums was no satisfaction of the bond, so as to 
bar an action thereon to recover for further ac- 
cruing yearly sums during the life of the obligee. 
Blackmer v. Blaekmer^ 5 Vt. 355. 

19. Tender of performance. Where a 
bond is conditioned to become absolute upon 
the performance of a collateral thing by the 
obligee, a tender of performance, wrongfully 
refused, has the effect of actual performance so 
far as to give a right of action on the bond, but 
has not the effect of performance as to damages. 
Boardman v. Keller, 21 Vt. 77. 86 Vt. 720. 

20. Form of judgment. The stipulation 
in the condition of a bond, that if the obligor 
shall not carry on a particular business, &c.. 
then the bond shall become void, is, under G. 
8. c. 30, B. 66, in legal effect a "covenant " or 
"agreement" that he will not carry on such 
business. And in an ^tion on such bond, 
where the breaches and the injury may be con- 
tinuous, or from time to time, judgment is to 
be rendered for the penalty, and execution to 
issue only for the damages assessed for past 
breaches. Marvin v. Bell, 41 Vt. 607. 

21. Distinction taken between such case 
under s. 65, and a case under s. 63, where there 
can be but one breach and assessment— as on 
jail bonds ; bonds conditioned for the payment 
of a single sum of money ; or the performance 
of a single service or duty. lb. Williams v. 
WilUon, 1 Vt. 266. 

22. Damages— Interest. In an action on 
a bond conditioned to indemnify against a cer- 
tain payment, interest on the sum paid, though 
exceeding the penalty, may be recovered as 
damages. Williams v. WiUson, 

23. In an action against the surety on a jail 
bond, interest in excess of the penalty was re- 
fused. Mattocks V. Bellamy, 8 Vt. 463. 

24. Oonstruction— Instances. Tlie plain- 
tiff had covenanted to support his mother. A, 
one of the defendants, as principal, and the 
others, as sureties, gave a bond to the plaintiff 
that A should support the mother, and save the 
plaintiff harmless from such expense by virtue 
of his said covenant. In an action on the bond ; 
— Held, that the defendants were liable for 
such support as the plaintiff had furnished for 
the mother upon the neglect of A to furnish it ; 
and that the plaintiff was not bound to wait for 
a suit to be brought against him on his cov- 
enant, before furnishing the support and cliarg- 
ing the defendants ; and that the sureties were 
equally bound with the principal. Seaver v. 
Young, 16 Vt. 658. 

25. A bond to indemnify the plaintiff "from 
all costs and exix'uses" in consequence of the 



plaintiff's making [having made] certain attach- 
ments, was held to cover costs and expenses in- 
curred by the plaintiff in defending a suit brought 
against him for having made such attachments, 
in which suit the attachments were sustained ; — 
the words used being construed with reference 
to the subject matter, and the contemporaneous 
circumstances. Chilsons v. Downer, 27 Vt. 
586. 

26. The plaintiff, an authorized person, had 
attached on four writs certain property which 
was appraised under the statute at $213, and 
was delivered up to the debtor upon the giving 
by W to the plaintiff a bond, conditioned to pay 
the plaintiff, or any officer having executions 
which might be obtained in said suits, $218, or 
to indemnify the plaintiff " from all damages 
and costs which may accrue to him if such pay- 
ment is not made to him to meet such execu- 
tions. '' Before the taking of the bond and the 
delivery of the property, the plaintiff had been 
at expense in keeping and appraising it. In one 
of the suits only was judgment recovered against 
the defendant therein, and the execution on that 
judgment was paid by W. In an action against 
W on the bond ',—IIeld, that he had performed 
the second alternative of the condition, and that 
the plaintiff could not recover such expenses. 
Mason v. Whipple, 31 Vt. 473. 

27. Where a bond was given conditioned to 
become absolute if the obligee should make and 
deliver a certain number of pairs of boots by 
certain times named, the obligor to furnish the 
leather; — Held, that the refusal to furnish the 
leather was a direct breach of the bond and 
worked a forfeiture. Boardman v. Keeler^ 21 
Vt. 77. 



BOOK ACCOUNT. 

« 
I. Charges ;- -FoKM of Charge and 
Right to Charge. 
II. For What the Action Lies. 

1. In general. 

2. As effected by affreement and course 

of dealing, 

III. When the Action does not Lie. 

IV. Jurisdiction. 

V. Judgment to Account. 
VI. Auditor and Audit. 
VII. Effect of Judgment as a Bar. 
VIIL Tender. 
IX. Statute of Limitations. 

I. Charges ;~Form of Charge and Right 
TO Charge. 

1. Form. Erasures and alterations in a book 
account do not destroy its character as an orlg- 
iual. These only go to its credit, and the book 



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BOOK ACCOUNT, II. 



Ill 



18 evidence notwithstanding. Ba/rgeant v. Pet- 
tOxnu, 1 Aik. 365. 

2. The form in which a charge on a book is 
made does not effect the right of recovery in an 
action of book account. Stone v. Puhdplier^ 16 
Vt. 428. QoMeU v. Andmer^ 21 Vt. 842. To- 
hioA V. BUnn^ 21 Vt. 544 ; as where it is made 
in gross. Newell v. Keith, 11 Vt. 214. 

3. That the charge was made against a cer- 
tain party, and the account in form kept with 
Mm, is not conclusive evidence tliat the credit 
was given to him. Scott v. Shipherd, 8 Vt. 104. 

4. A charge on book against a wrong party 
does not preclude a recovery against the right 
party. Goodrich v. Drew, 10 Vt. 187. 

5. The charge of a party's note on his book 
is proper and may be adjusted in the book ac 
tion, where there is a credit ent<?red to which 
the note was intended to be applicable. Barlow 
V. BuUer, 1 Vt. 146. 

6. Bigllt. The general usage and practice of 
the country is important in determining what is 
a proper subject of charge on book. Hall v. 
Peck, 10 Vt. 474. 

7. It is no objection to maintaining the ac- 
tion on book, that the charge was not made 
at the time the right to charge accrued. Kings- 
land V. Adams, 10 Vt. 201. Nor does the right 
depend upon the plaintiff's having kept books 
of account, or accounts in any form, but he may 
make up his account ia court. BeU v. McLer - 
an, 3 Vt. 185. 

8. The right to make a charge on book must 
exist at the time of delivering the article, or 
performing the service, and cannot depend upon 
the happening of subsequent events. Slasson v. 
Davis, 1 Aik. 73. 

9. The right to make a charge on book does 
not require that there should be an immediate 
and present right of action upon it. It is suffi- 
cient, in any case, if an obligation to account 
for the money or property received results di- 
rectly from the transaction between the parties. 
On this obligation, or liability, the right to 
charge is founded ; and it does not depend on 
the time or mode of accounting, nor on the 
question whether the obligation is already abso- 
lute and perfect, or is subject to be modified by 
some act or condition to be performed by the 
other party. That a demand is necessary to 
perfect the right, is no objection to maintaining 
the action of book account. Jackman v. Part- 
ridge, 21 Vt. 558. HaU v. Peek, 10 Vt. 474. 
Rogers v. Miller, 15 Vt. 431. 

1^ In order to entitle the plaintiff to main - 
tain an action of book account, it is not neces- 
sary that be should have contemplated making 
a charge, or even that he should have supposed 
that he waa entitled to make it, provided the 
facts then existing, but of which he was not ap- 
prised, gave him the right to make it. Loomis 
V. Wainwright, 21 Vt. 520. 



11. Property may have been delivered under 
a contract which gave no right to charge on 
book; but when a new contract supervenes 
which changes the ownersliip, the right to 
charge and to recover in an action of book 
account may arise. So, too, of contracts for 
services. Perry v. Buoknian, 33 Vt. 7. 

II. FoK What tiik Action Lies. 

1. In general, 

12. Concurrent with general assumpsit. 
In every case, where a recovery could be had 
under the general counts in assumpsit for goods 
sold and delivered, labor, &c. , and these are^the 
ordinary subjects of book charge, a recovery 
therefor can l)e had in the action of book ac- 
count. Wilkins v. Stevens, 8 Vt. 214. 

13. The action of book account, with some 
few exceptions, is concurrrent with the action 
of general assumpsit. Gassett v. Andoi>er, 21 
Vt. 342. 

14. Instances. The action of book account 
lies for a hogshead of gin, Field v. Sawyer, 
Brayt. 89 ;— for 2,088 lbs. wool sold and deliv- 
ered. Leach v. Shepard, 5 Vt. 368;— for lot- 
tery tickets lawfully isi^ed and sold, MiUs v. 
BrowneU, 8 Vt. 463 ; — for postages charged by 
one while postmaster, Sargeant v. PetUbone, 
1 Aik. 855 ; — for fees charged for services as a 
justice of the peace, Ih.-, — on a charge for 
money. Warden v. Johnson, 11 Vt. 455. ChsU 
Us V. Woods, 11 Vt. 466;— as for money loaned, 
or money paid at the defendant's request, Sa/r- 
geant v. PetUbone, 1 Aik. 855 ; — or money of 
the plaintiff received by the defendant from a 
third person on the plaintiff's order, Stone v. 
Foster, 16 Vt. 546. 

15. Also, for money advanced to be paid for 
in transportation thereafter to be done, to be 
adjusted upon the defendant's rendering an ac- 
count, — where the defendant fails to perform 
the service. Hiekok v. Bidley, 15 Vt. 42 ;— 
also, for money paid for the defendant at his 
request, under an agreement that the defendant 
would secure the payment by mortgage, which 
he failed to do. WeOer v. McCarty, 16 Vt. 
98. 

16. Where an application was made to the 
probate court, by an overseer of the poor, for a 
commission for inquisition and the appointment 
of a guardian for an insane person ; — Held, that 
the probate judge could recover of the town, 
in an action of book account, his fees as judge 
for issuing such commission, altliough the ap- 
plication was 80 defective as not to warrant any 
proceedings under it. Sargeant v. Sunderland, 
21 Vt. 284. 

17. It is no objection to a recovery in the 
action of book account for money, that the de- 
fendant gave a receipt for the money, as ex- 



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BOOK ACCOUNT, IL 



pressed, '*to be accounted for." Bo^UweU v. 
Tyler, 11 Vt. 487. 

18. All attempts to establish any general rule, 
as to what may or may not be charged on book, 
have failed. It is no objection to such action, 

•that the account consists of a single item,— as 
a horse sold. The case of Amet v. Fisher, 
Brayt. 89, for ** the domestic spinning Jenny," 
has often been overruled. KingsUmd v. Adams^ 
10 Vt. 201. 21 Vt. 528. 

19. The action of book account was sus- 
tained for trees growing upon the plaintiflTs 
land, which were cut and carried away by the 
defendant by the plaintifTs permission. Mc- 
Leran v. Stevens, 16 Vt. 616. 

20. In this action a recovery may be had 
for charges arising from a former settlement of 
partnership deal between the parties, where the 
suit does not involve the closing of unsettled 
partnership deal and recovering a balance. 
&twyer v. Proctor, 2 Vt. 680. 

21. Sale. For the purpose of recovering the 
price or value of property, the action on book 
should be limited to cases of actual sale, or to 
cases where the party has admitted his indebt- 
edness and liability as upon a sale; in other 
words, where he has consented that his previous 
appropriation of the property should be treated 
as a purchase of it. Royee, J. in Tystm v. Doe, 
16 Vt. 571, citing 11 Vt. 79. 12 Vt. 13. 

22. Where property has been sold condi- 
tionally and payments have afterwards been 
made towards it by way of services, the services 
may l)e charged on book to await a subsequent 
application ; and, in a proper case, as if the ven- 
dor disaffirm the contract by taking back the 
property before such application has been made, 
the vendee may recover for his services in an 
action on book, deducting, in a proper case, for 
the use of the property. Stone v. Pulsipher, 
16 VI. 428, MarUn v. Rames, 26 Vt. 476. 

23. An agent to sell, having sold a part, 
purchased the remainder of the goods. Held, 
that the whole amount was pro|>erly chargeable 
on book and recoverable in the l>ook action. 
Starr v. llunUey. 12 Vt. 13. 15 Vt. 575. 

24. Special contract. It is no objection 
to the maintaining of an action of book account 
to recover for items otherwise properly charge- 
able on book, that they accrued under a con- 
tract special as to the time and manner of per- 
formance, or the time and manner of payment. 
AusUny, Wheeler, 16 Vt. 95. Steams v. Ba- 
f>en, 16 Vt. 87. Eddy v. Stafford, 18 Vt. 285. 
Porter v. Hunger, 22 Vt. 191. Waterman v. 
Sttmpson, 24 Vt. 508. 38 Vt. 152. Boardman 
V. Keeler, 2 Vt. 66. Nernton v. Higgins, 2 Vt. 
866. Fry v. Slyfield, 8 Vt. 246. Welter v. 
MeCarty, 16 Vt. 98. 

25. Where a party sues to recover the 
stipulated price for services actually rendered 
under a special contract fully performed on his 



part, it is no objection to the action on book 
that the services were performed under a spec- 
ial contract still unrescinded. Myers v. Bap- 
tut Sodety, 38 Vt. 614. 

26. Beceived to account for. Where 
promissory notes of the plaintiff went into the 
hands of the defendant to be held or collected 
as a security for the defendant's account 
against him, and to be held until such account 
should be settled, and the plaintiff in fact owed 
the defendant nothing ; — Held, that the plain- 
tiff could, after demand, recover therefor in 
an action of book account. Woodward v. Har- 
Um, 28 Vt. 338. 

27. Money received by an agent to be ac- 
counted for, when he becomes a debtor by 
receipt of the money, may be recovered of him 
by his principal in the action of book account. 
Vt. Mutual Ins. Co. v. Cumrm'ngs, 11 Vt. 503. 

28. Where articles have been left with an 
agent for sale, they may be charged on book, 
and, when sold, a recovery therefor may be had 
in the action of book account. Hall v. Pe^ik, 
10 Vt. 474. Gallup v. Merrill, 40 Vt. 137. 
44 Vt. 308. 

29. In an action of book account, one 
charge was for property of the plaintiff received 
by the defendant to be sold and accounted for. 
On the hearing the defendant resisted this item 
solely on the ground that he had purchased 
and owned the property. Held, that this justi- 
fied the inference of a refusal to deliver or ac- 
count for it, and that the plaintiff could recover 
therefor. Hiekok v. Stevens, 18 Vt. 111. 

30. Where the plaintiff took his goods to the 
defendant to answer on a previous contract be- 
tween them, and the defendant while receiving 
the goods wrongfully insisted on applying them 
to the account of another person, whereupon 
the plaintiff claimed the goods as his and de- 
manded them or pay for them, which the de- 
fendant refused and applied the goods to such 
other person's credit, and afterwards sold the 
goods ;— Held, that the plaintiff might charge 
and recover for the goods in an action of book 
account. Waterman v. Stimpson, 24 Vt. 508. 

31. Article manufactured. Where one 
orders an article manufactured at a mechanic's 
shop, and it is made according to the order, it 
may be charged and recovered for in the action 
of book account, whether it is ever delivered or 
not. When the order is executed, so that noth- 
ing more remains to be done, the title to the 
thing passes to the vendee, and thereafter it re- 
mains at his risk, and he becomes debtor W the 
vendor for the price, and that is the proper 
time to make the charge on lK)ok. The law is 
the same where one employs another to pro- 
cure an article to be manufactured for him else- 
where, or to purchase it for him ; and when so 
procured or purchased, it may be charged on 
book. Paddock v. Ames, 14 Vt. 516. 



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SOOK ACCOUNT, II. 



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32. The plaintiff made for L an organ case, 
and delivered it before being fully finished, and 
charged it to L on book. L sold it to the de- 
fendant, who agreed with L to pay the plaintiff 



therefor, and the defendant informed the plain-^ accounts between parties, and there is an agree 



tiff of the transaction, and the plaintiff there- 
upon erased the name of L from the charge and 
inserted that of the defendant. Afterwards the 
plaintiff delivered to the defendant the pillars, 
trimmings, «&c., to finish the case. Heldy that 
the price of the case was recoverable of the de- 
fendant in the action of book account. Pang- 
bam V. 8a:rton, 11 Vt. 79. 15 Vt. 575. 

33. Price conditioiial. The plaintiff sold 
the defendant a mare for a specified sum, but 
if she should prove to be with foal the defend- 
ant agreed to pay four dollars additional to a 
third person to whom the plaintiff had agreed 
to pay that amount. The mare having proved 
with foal, and the defendant having refused to 
pay the f4.00 .—Held, that tlie plaintiff could 
recover that sum in an action of book account. 
Ihpyer v. HaU, 22 Vt. 142. 

34. Article lent. Where an article is lent 
and there is a right at the time to charge for 
the use of it, its value may be recovered in an 
action of book account where it is worn out in 
t*he use — as a wagon wheel lent— and the form 
of the charge, whether for the use of the arti- 
cle, or for the article itself, is not material. 
SUrnt V. Pulmpher^ 16 Vt. 428: or for damage 
to the article. Oa^otett v. AmJover, 21 Vt. 342. 

35. The defendant hired of the plaintiff, for 
a stipulated price, a derrick to use and to be 
returned in as good condition as it then was, 
except the ordinary and natural wear. It was 
broken in the use, and the plaintiff got it re- 
paired. In an action of book account ; — Held^ 
that the damage to the machine was caused by 
the use, and that a depreciation of its value in 
consequence of the use, to the extent of the re- 
pairs made, was properly adjusted in the ac- 
count for the use. Woodward v. Vtitler^ 33 Vt. 
49. 

36. Some nails were l)orrowed of the plain- 
tiff to be paid for in nails again. Jfeld^ that 
this was rather a purchase to be paid in kind, 
than a borrowing for use ; that the nails were 
properly chargeable on book, and that the item 
was recoverable in this form of action. Cass v. 
MeDonald, 39 Vt. 65. 

2. As affected by agreement and emirse of dealing. 

37. Matters not in themselves strictly charge- 
able on book may, not only by express agree- 
ment, but even by agreement implie<l merely 
from the parties' course of dealing, be adjusted 
in the action of book account. Scott v. Ijance, 
21 Vt. 507. Case v. Berry, 8 Vt. 832. Hall v. 
EaUm, 12 Vt. 510. 

38. Executions and notes may, by agreement, 



be charged on book, and may, m such case, be 
recovered for in this action. Glea^son v. Briggs, 
28 Vt. 136. 
39. Where there are running and mutual 



ment or common understanding that items not 
properly chargeable on book— as taxes paid by 
one for the other— shall be adjusted and set- 
tled with their other accounts, they may be in- 
cluded in the account and be recovered for in 
this action. Noyes v. Uall, 28 Vt. 645. 

40. Breaches of contract, and matters of 
unliquidated damages of various kinds and de- 
grees, may Ik; brought into the adjustment of 
mutual book accounts in the action of book ac- 
count, if such was the previous express agree- 
ment, or the mutual expectation of the parties. 
Chamberlain v. Farr, 23 Vt. 265. 

41. A claim of damages for a trespass or 
tort may become a matter of contract by the 
mutual agreement of the parties, and be recov- 
erable in book account ; but not without such 
agreement. Stoic v. Black, 37 Vt. 25. Uassam 
V. Ilassam, 22 Vt. 516. Steams v. J>ilUngham, 
22 Vt. 024. Winn v. 35 Spragne, Vt. 243. 

42. Where an item not properly chargeable 
on book was presented l)efore the auditor, and 
the only objection made to it was that it had 
been paid, and the auditor found that it had 
not b<*en paid ; — Held, that objection could not 
be thereafter taken that the item was not a 
proi>er one to ho adjusted in the action on book 
—consent to the adjustment being implied. 
Peek V. Soragan, 27 Vt. 92. 

43. The defendant held, as his security for 
his obligation assumed for the plaintiff, a mare 
and colt of the plaintiff. He sold the mare for 
enough to satisfy such obligation and retained 
the colt, admitting his liability to account for 
them and expressing a willingness to do so 
when the plaintiff would settle with him all 
matters between them. In an action of book 
account ;—Held, that the proceeds of the sale 
of the mare, and the value of the colt, were 
proper matters of charge and adjustment in 
the action. Cobleigh v. SUyne, 29 Vt. 525. 

44. The defendant's cattle having trespassed 
upon the plaintiff's land and damaged his crop 
of oats, through the defect of a division fence 
which both parties were under an equal obliga- 
tion to keep in repair, the defendant, on l>eing 
reminded by the plaintiff of the damage done, 
told the plaintiff that he would allow him what 
was right for the oats when they came to settle. 
neld, that this did not amount to a consent to 
a change in the form of the liability, and warrant 
a recovery in an action of book account. Winn 
V. Sprague, 35 Vt. 243. 

45. Rent, or the use of land, or other mat- 
ter not properly chargeable on book, may be ad- 
justed in the action of book account by appli- 
cation as against charges on book agreed or un- 



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dcrstood to be so adjusted, and claimed on 
trial. Farrand v. Oage, 8 Vt. 826. 12 Vt. 
512. Case v. Berrp, 3 Vt. 332. Gunms(m v. 
Bancroft, 11 Vt. 490. 25 Vt. 40. Chamber- 
lain V. Farr, 28 Vt. 265. 

46. If a party charges any matter upon 
book, and claims to recover for it in the action 
of book account, he cannot object to the other 
party's bringing into the account any other 
matter, though not properly chargeable and re- 
coverable on book, upon which it was agreed 
that such charge should apply. Ounniwn v. 
Bancroft, Fanrrand v. Oa>ge, Fcusett v. Vin- 
cent, 8 Vt. 78. 

III. When thb Action Does Not Lie. 

47. The action of book account does not lie 
for a wagon, delivered on a written order con- 
taining a special contract as to the time and 
manner of payment. Whelpley v. Uigly, 
Brayt. 89 (Overruled). 

48. Nor where there was a single charge, 
for a **spinning jenny." Ames v. Fishery Brayt. 
39. (Overruled, 10 Vt. 201.) 

49. Sale without delivery. An action 
of lK)o^^ account for goods sold will not lie, 
where the sale is not completed by actual de- 
livery. Read v. Barlatc, 1 Aik. 145. 8. C, 1 
Vt. 97. 8 Vt. 218. 18 Vt. 499. 36 Vt. 79. 

50. Book account will not lie, in such case, 
except where asumpsit will, for goods sold and 
delivered, or bargained and sold. There must 
be such a completed and perfected contract as 
that the property has passed to the defendant. 
Hodges v. Fox, 86 Vt. 74. Bundj/ v. Ayer, 
IB Vt. 497. 18 Vt. 580. 

51. Special assignment. Goods assigned 
to be disposed of and converted into money and 
the proceeds applied in a particular manner, 
cannot be recovered for in the action of book 
account. Allen v. ThraU, 10 Vt. 255. 

52. Special damages. This action does 
not lie to recover damages for the breach of a 
special contract. Blaneha/rd v. ButterfieU, 
12 Vt. 451. Smith v. 8mith,U Vt. 440. Pierce 
v. Smithy 16 Vt. 166. Bailei/ v. Bailei/y 16 Vt. 
656. Scott V. Lance, 21 Vt. 507. 

53. Nor can unliquidated damages, claimed 
by either party, be adjusted in this action, 
whether arising from a tort, or the breach of a 
contract, special or implied. Smallep v. Sora- 
geuy 80 Vt. 2. 

54. A claim resting in damages for the 
breach of a special guaranty— as that goods 
should pass the custom house under a certain 
tariff — cannot be recovered in the action of 
book account. Pierce v. Smith, 16 Vt. 166. 

55. Nor does it lie upon a collateral agree- 
ment. Smith V. Jlydey 19 Vt. 54. 

56. The plaintiff was employed to make 
shoes for the defendant by the pair, the defen- 



dant preparing the work. Jleldy (1), that the 
plaintiff could not charge and recover, in this 
action, for lost time on account of not being 
kept constantly supplied with work;— this is 
but damages for the defendant's neglect ;— (2), 
that he could not, for this reason, and without 
notice to the defendant, charge his services by 
the month. Blanchard v. BuUerfield, 12 Vt. 
451. 

57. By contract between the parties, the 
plaintiff was to furnish plough irons, the defen- 
dant to wood them and return half the ploughs. 
The defendant set aside, as the plaintiff^s prop- 
erty, twelve ploughs thus wooded for him 
under the contract, six of which were after- 
wards attached and sold on execution as the 
property of the defendant. Ileldy that the 
plaintiff could not maintain an action of book 
account for the value of the six ploughs so sold. 
Tysmi V. Doe, 15 Vt. 571. 

58. In an action on book to recover for ser- 
vices of the plaintiff's minor son whom he had 
hired out to the defendant for a specified term, 
at a specified price per month ; — Ileldy that the 
plaintiff could recover only for the time of 
actual service, whether or not the defendant 
wrongfully suffered the minor to leave service, 
or turned him off. Hennessy v. Stewarty 31 
Vt. 486. 

59. Intermiztore. This action does not 
lie to recover the value of goods which the 
plaintiff negligently intermixed with those of 
the defendant, and which were used by the de- 
fendant. Pratt V. Brya/nt, 20 Vt. 333. 

60. Usury. Goods delivered in payment 
of usurious interest cannot be charged and re- 
covered for in this action. A recovery in such 
case can be had only in the mode pointed out 
by the statute. Allen v. ThraUy 10 Vt. 255. 

61. Money lost. A claim for money lost 
by the negligence of an employe cannot be re- 
covered of him in an action of book account, 
where he denies his liability and does not con- 
sent to its being so adjusted. Chase v. Spene^y 
27 Vt. 412 ; and see Drury v. Douglas, 35 Vt. 
474. 

62. —due on note. A sum due upon a 
promissory note cannot be charged and recover- 
ed for on book. Stevens v. Damon, 29 Vt. 521. 

63. —collected by attorney. Without 
an agreement express or implied to that eff(K;t, 
money collected by an attorney cannot be 
charged and adjusted in the action of l)ook ac- 
count. Scott V. Lance, 21 Vt. 507. Farrand 
V. Oage, 3 Vt. 326. 

64. Bent. So, as to the use and occupm- 
tion of land, — or rent. Ih. Hitchcock v. SmWi, 
Brayt. 39. Case v. Berry, 3 Vt. 332. Nidtols 
V. Packard, 16 Vt. 91. 

65. Costs of arbitration. Tlic cosu and 
expenses of an arbitration, revoked before 
award made, cannot be recovered in an action 



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BOOK ACCOUNT, IV. 



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of book account, against the party revoking. 
Bryant v. C&yi>rd, 27 Vt. 664. 

66. Articles lent. Tools lent not to be 
worn oat by use and not damaged, nor a return 
demanded, cannot be recovered for in this ac- 
tion, though not returned. 8eoU v. Brigham, 
27 Vt. 661. 

67. The plaintiff borrowed the defendant's 
chain and broke it. Held, that the plaintiff 
could not, in an action of book account, recover 
the expense paid for mending the chain. lb. 

68. —balled for sale. A party cannot re- 
cover in this action for items which he could 
not recover under the common counts in gen- 
eral assumpsit ;— as, for articles bailed for sale 
which are not sold, but which the defendant 
merely refused to deliver on demand. Kidder 
▼. 8au?le», 44 Vt. 303. 

69. Tenants in common, ftc. One of two 
tenants in common of personal property cannot 
recover of the other, in an action of book account, 
for having used more than his share of the com- 
mon property. Albe4! v. Fairbanks^ 10 Vt. 
314. MeCHms v. Banks, 19 Vt. 442. 21 Vt. 
560. 

70. Where one joint owner or tenant in com- 
mon appropriates more than his share, the ex- 
cess cannot be recovered in this action, although 
so done by consent and under an agreement to 
account on final settlement. BHggs v. Breirn- 
ter, 23 Vt. 100. SeoU v. Lance, 21 Vt. 507. 
(('hanged by Stat. 1862.) 

71. Joint action. In a joint action of book 
account, the defendant cannot be allowed for 
items due from the plaintiffs severally. Glea- 
mm V. Vermont Central B. Co,, 26 Vt. 37. 

' 72. Waiving tort. In a matter of trespass, 
or tort, the plaintiff cannot waive the tort and 
recover therefor in book account, nor in assump- 
sit. Peaeh v. MiUg, 14 Vt. 371. MeCrillis v. 
Banks, 19 Vt. 442. Hasmm v. Hassam, 22 
Vt. 516. Stetms v. DUUnglMm, 22 Vt. 624. 
5<»tt V. Lanee, 21 Vt. 507. Drury v. Douglas, 
85 Vt. 474. 

73. No part of aceonnt due at com- 
mencement of snit. This action cannot be 
sustained if no part of the plaintiff's account 
had become due at the commencement of the 
suit, although it had all become due before the 
audit. Wetherell v. Ef>arts, 17 Vt. 219. 24 Vt. 
42. 

74. Items of account proper. The Statute 
of 1862 (G. 8. c. 41, s. 18) does not extend to 
cases where the entire account is a partnership 
dealing, and there arc no items properly charge- 
able on book and recoverable in the action of 
book account. Qreen v. Chapman, 27 Vt. 286. 
Dwryea v. WMteonO), 81 Vt. 896. 

75. It is foreign from the letter and spirit 
of G. 8. c. 41, s. 18, to allow a party whose 
principal matter of controversy properly belongs 
to the action of account, but who has few items 



of book account disconnected with, or rising in- 
cidentally out of, the principal subject matter, 
to bring in and settle in the action of book ac- 
count the principal subject in controversy. 
Huxley v. Carman, 46 Vt. 462. HydeviUe Co, 
V. Barnes, 37 Vt. 588. 

IV. Jurisdiction. 

76. Apparent debtor side of book. The 

debtor side of the plaintiff's book, to be deter- 
mined by inspection, affords the only rule for 
determining the jurisdiction of a justice, in the 
action of book account. It is not affected by 
an omission to charge what might have been 
charged, nor by any entries of credit on the de- 
fendant's book. Stone v. Winslmc, 7 Vt. 338. 
Beach V. Boynton, 26 Vt. 105. 

77. The converse of the proposition must 
follow, and the county court alone has jurisdic- 
tion where the debtor side of the plaintiff's book 
exceeds $100 [now $200] ;— certainly where 
the charges are not either fictitious or made in 
bad faith. JVfehols v. Packard. 16 Vt. 91. 

78. The debit side of the plaintiff's claim, as 
presented, is regarded as his book for the pur- 
pose of determining the jurisdiction of the 
court; and the fact that such claim was not 
upon his book, or was not fully proved, unless 
it was merely fictitious, does not defeat the ju- 
risdiction. Mastm V. Potter, 26 Vt. 722. 

79. If the debtor side of the plaintiff's book 
exceeds f 100 [G. S. $200], the county court 
has original and exclusive jurisdiction, which 
is not affected by the sum ultimately found due 
the plaintiff, ^ddy v. Ilin-Um, 27 Vt. 285 ;— 
nor by the fact that part of the items have been 
paid and credited, leaving a balance of a less 
sum. Reed v. Tnlfcn-d, 10 Vt. 568. WillardY, 
Collamer, 34 Vt. 594. 

80. —as presented and claimed. A jus- 
tice has jurisdiction in an action of book ac- 
countk where neither the ad damnum, nor the 
plaintifTs accomit, as presented and claimed, ex- 
ceeds $100 [G. S. $200], although the debtor 
side of the plaintiff's book, in all, may exceed 
that sum. Fargo v. Remington, 6 Vt. 131. 
Stevens v. Damon, 29 Vt. 521. 

81. — erroneous statement of. Where 
a party's account is made to exceed the limit of 
a justice's jurisdiction by an erroneous mode of 
stating the account, the jurisdiction is not lost. 
Temple v. Bradley, 14 Vt. 254. 

82. In an action on book appealed from a 
justice, the debtor side of the plaintiff's book, 
as presented to the auditor, showed a case with- 
in the justice's jurisdiction. Held, that the ju- 
risdiction was not defeated by the fact that the 
auditor adopted such a mode of stating the ac- 
count as to swell the debtor side of the account 
beyond the jurisdiction. Mason v. Hutehins^ 
32 Vt. 780. 



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83. An article sold witli the privilege of re- 
turn, and returned, and both charged and cred- 
ited on the plaintifTs book, should not be taken 
into account to bar a justice of his jurisdiction, 
the suit being brought in good faith. Page v. 
Min-gan, 28 Vt. 665. . 

84. Fictitious entries. The plaintiff in an 
action of book account cannot bring his case 
within the jurisdiction of the county court by 
entering in his account a bill of goods paid for 
and receipted on delivery, and which was not 
charged in account at the time. Nelson v. Em- 
ery, 17 Vt. 579. 

85. A party cannot give a court jurisdic- 
tion by making figures on paper that he con- 
cede9 do not represent the amount of the claim 
he holds, or designs to make ; nor by changing 
the figures of charges on an original book, cor- 
rectly made, to larger figures upon a draft of 
account, without right. Scott v. McDonough, 
39 Vt. 203. 

86. Stating balances. Book account, 
brought to the county court.— The plaintiff's 
whole account was over $100 ; but he and the 
defendant had, from week to week, looked over 
their respective accounts, found balances and 
carried over the balances to the account of the 
next week, until they had a final settlement, 
and the balance then found due was less than 
$100. Held, that although assumpsit might lie 
upon an implied promise to pay the balance 
found due, yet this settlement was not a mer 
ger of all previous dealings, though it might 
be used as evidence to regulate the sum to be 
recovered ; and that the county court had ju- 
risdiction. Gla^k V. Edgell, 26 Vt. 108. 

87. A balance of book accounts found due 
on mutual settlement may be charged over as 
an item in the new account, and may be re- 
covered in the action of book account. In such 
case, the previous state of the accounts does not 
affect the question of jurisdiction. The parties 
are witnesses to such settlement. Oihwn v. 
Sumner, 6 Vt. 163. Spear v. Peck, 15 Vt. 566. 
Warren v. Bishop, 22 Vt. 607. 

88. Disputed award. Where the plain- 
tiff's whole account exceeded $100, but it had 
all been awarded upon by an arbitrator, except 
an item of $8.20 omitted, and the validity of 
the award was disputed by the plaintiff ',—ffeld, 
m an action on book, that the county court had 
jurisdiction, although the award was held valid 
and a bar to all the account except such item. 
Ennos v. PraU, 26 Vt. 630. 

89. Increase of the account. In an ac- 
tion on book brought in the county court, where 
the debtor side of the plaintiff's book at the 
time of commencing the suit was less than suf- 
ficient to give original jurisdiction ;—JIeld, that 
jurisdiction was not conferred by a sul)sequent 
increase of the account and that the suit must 
be dismissed at any stage of the proceedings 



whenever the want of jurisdiction is discovered. 
Shepherd v. Beede, 24 Vt. 40. 

90. Ad damnum. An action on book, re- 
turnable to the county court, was dismissed on 
motion, where the Imlance declared for and the 
ad damnum were both within the jurisdiction 
of a justice. Bates v. Downer, 4 Vt. 178. 

91. A judgment of the county court in an 
original action of book account, where the 
declaration was in common form without any 
averment as to the amount of the debtor side 
of the plaintiff's book and the ad damnum was 
laid at $100, and where no objection was taken 
to the action, was field not void for want of ju- 
risdiction, where it appeared from the account 
made. part of the auditor's report, that the debit 
side of the plaintiff's account exceeded $100. 
Paulv. Burton, 32 Vt. 148. 

92. Apparent debtor side of the account 
not a conclusive test. In an action of book 
account, the apparent ** debtor side of the 
plaintiff's book " is not the conclusive test of 
jurisdiction. Thus, where it is made appar- 
ently to exceed a justice's jurisdiction by items 
charged, or posted, by mistake and not claimed, 
(CatUn V. Aiken, 5 Vt. 177. Phelps v. Wood, 
9 Vt. 399) ; or so made by the entry of items 
not properly chargeable on book, or in that 
account, and not insisted upon, (Scott v. 
Sampson, 28 Vt. 569. Sheldon v. Flynn, 17 
Vt. 2S8.)—neld, that the justice properly took 
jurisdiction. 

93. Where the *' debtor side of the plain- 
tiff's book " was made apparently to exceed a 
justice's jurisdiction, by including certain items 
which had been settled by the giving of a 
note therefor which had been paid, and about* 
this there was no dispute, nor misunderstand- 
ing; — Held, that the county court had not 
original jurisdiction. Hodges v. Fox, 36 Vt. 
74. 

94. Plaintiff's good faith. An action of 
book account brought in good faith in the 
county court, the jurisdiction being fairly 
doubtful, was sustained. Stanley v. Barker, 
26Vt.^07. 

95. In this action the jurisdiction is not left 
to the choice of the plaintiff, but depends upon 
the debtor side of his account as an open, sub- 
sisting, unliquidated account, irrespective of 
credits, payments, or offsets. Hodges v. Fox, 
36 Vt. 74. 

96. Where the statute arbitrarily prescribes 
the criterion of jurisdiction, as in the action of 
book account or upon a promissory note, the 
plaintiff's good faith in bringing his suit in the 
particular court has little application to the 
question. H>, Barrett, J, in Miller v. lAmng- 
stone, 37 Vt. 468-9. See Reed v. Stockwell, 34 
Vt. 206. 

97. Interest on the account. To the sum 
demanded in an action of book account, and 



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found due, the court added interest so as to 
exceed the sum demanded, and rendered judg- 
ment therefor. Held correct. Dickenson v. 
Ootdd, 2 Tyl. 32. 

98. In an action of book account before a 
justice, the addition of interest to the plain- 
tiffs account by consent of the parties in ad- 
justing the balances, was held not to affect the 
jurisdiction, although if the claim for interest 
had been presented as part of the debit side of 
the plaintiffs book, the jurisdiction would have 
been exceeded. Stone v. Winslow, 7 Vt. 888. 

99. It is optional with the plaintiff whether 
to claim interest upon his account or not ; and 
a justice suit will not be dismissed because, by 
adding interest, the account would exceed the 
justice's jurisdiction. Paige v. Morgan, 28 Vt. 
565. Catlin v. Aiken, 5 Vt. 177. Stone v. 
WimUmc, 

100. The county court has original juris- 
diction of an action of book account, although 
the debit side of the plaintiffs account, as 
charged, is less than 5|100, if the interest which 
was demandable, though not actually charged 
when the suit was commenced, would raise the 
claim above that sum— [now $200]. BUn v. 
Pierce, 20 Vt. 25. 

V. Judgment to Account. 

101. After judgment to account and a re- 
port of auditors, the courl refused a motion to 
arrest judgment, for the reason that the decla- 
ration was not according to the statute form, — 
the judgment to account being an admission of 
unsettled accounts between the parties. Mc- 
Kay V. Brotm, 13 Vt. 598. 

102. The plaintiff has not the right to be- 
come non tvit, after judgment to account and 
the case has gone before the auditor. Lyon v. 
Adamt, 24 Vt. 268. 30 Vt. 218. 28 Vt. 444. 

103. In the action of book account, the pre- 
liminary judgment to account is always ren- 
dered without reference to the actual dealings 
between the parties, or whether any have ex- 
isted or not. Da/t>i4i, J, in Hagar v. Stone, 20 
Vt. 109. It is little more in point of conclu- 
sivenera than an ordinary order of reference. 
Stede, J, in Smith v. Bradley, 39 Vt. 869. Reed 
v. Barlm, 1 Aik. 145. Matthews v. Tower, 39 
Vt. 438. 

104. After a judgment to account, though 
by default, final judgment in chief may be ren- 
dered for the defendant on the report of the 
auditor. Oordan v. Potter, 17 Vt. 348. 

VI. Auditor and Audit. 

105. Competency and powers. Report 
by two auditors of the three appointed. Upon 
proof to the court, that the hearing was had by 
the two only by consent of the parties, the re« 



port was accepted. Booth y. Tousey, 1 Tyl. 
407. 

106. Under sec. 64 of the judiciary act of 
1797 (Slade's 8tat. 73), the court could by 
themselves audit the accounts and ascertain 
the sum due in an action of book coming into 
court by appeal, where the defendant suffered 
a default. Dickenson v. Go^ild, 2 Tyl. 32. 

107. A judge acting as a constituent part of 
the court cannot appoint himself auditor in a 
suit ; nor can he act both as judge and auditor 
in the same cause. Campbell v. Wilson, 2 Aik. 
118. 

108. A person whose wife is first cousin to 
the wife of one of the parties to a suit is dis- 
qualified to act as auditor therein. Clapp v. 
Fost^, 34 Vt. 580. 

109. The expression of an opinion by an 
auditor, before his appointment, upon the facts 
or the merits of the case, unfavorable to one 
of the parties, and that unknown to him, may 
be sufficient cause for setting aside the report, 
on his motion ; but not if such opinion be upon 
a mere point of law, since the court reviews 
and determines the law. Fay v. Green, 2 Aik. 
386. 

110. An auditor allowed a claim in a case 
where he was interested to disallow it. Held, 
that the party against whom the allowance was 
made could not object to the report for this 
cause. Lovell v. Field, 5 Vt. 218. 

111. Special defenses before auditor. 
The court early settled the practice, that in the 
action of book account the defendant might 
omit to plead special matter, and might present 
it before the auditors as a defense, in whole or 
in part. May v. Brownell, 3 Vt. 463. 18 Vt. 
335. 

112. Where a declaration on book was filed 
in set-off to an action upon a note ; — ffeld, that 
a plea to such declaration, that the items of 
such account were received under an agreement 
that their amount was to be allowed on the 
note, was insufficient. Blaekmore v. Page, 2 
Tyl. 110. 

113. There is no use in craving oyer, since 
the party before the auditor is not confined to 
the oyer. Bead v. Barlow, 1 Aik. 145. 

114. In the action of book account, the right 
to plead in bar is as limited, as the right to de- 
fend before the auditor is extended. Steele, J., 
in Smith v. Bradley, 39 Vt. 369. 

115. No defense can be specially pleaded, 
which depends for its effect upon the plaintiffs 
account, or puts in issue the plaintiffs account. 
All such defenses must go before the auditors. 
Porter v. Smith, 20 Vt. 344. Matthews v. 
Tower, 39 Vt. 433. 

116. A plea which puts in issue facts to 
which the parties may testify before the audit- 
ors, is bad. Delaware v. Staunton, 8 Vt. 48. 
Hall V. Downs, Brayt. 166 ; and the law is the 



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same since the statute allowing parties to be 
witnesses in general. Matthews v. Tmt^r. 

117. The non-joinder of a party defendant 
is matter of defense before the auditors and 
cannot be pleaded in abatement. Ijoomui v. Bar- 
rett, 4 Vt. 450. Smith v. WaUaii, 14 Vt. 332. 
Hagar v. SUyne, 20 Vt. 106. {Goddard v. 
Br&tm, 11 Vt. 278. Smith v. Bradley, 39 Vt. 
369.) 

118. The law is the same though the omit- 
ted co-contractor resides without the State — 
since process might have i^tvued against him. 
Bailey v. Hodges, 19 Vt. 618. 

119. A payment, accord and satisfaction, 
settlement or release, unless it be a release of 
the a<;ftVn. cannot be pleaded. in bar, but may 
be used in defense l)efore the auditors. DelO' 
ware v. St/iunU/n, 8 Vt. 48. Matthews v. Tower, 
89 Vt. 433. 

120. Nor can it be pleaded that the defend- 
ants declared against as partners were never 
partners. Ptn-ter v. SmitJi, 20 Vt. 344. 

121. Nor can the statute of limitations be 
pleaded in bar. Smith v. Bradley, 39 Vt. 366. 

122. But in an action of book account by 
husband and wife, the death of the wife pend- 
ing the suit cannot be objected to before the 
auditor. The question is one for the court 
upon proper motion. Perry v. Whitfiey, 30 Vt. 
390. 

123. Distinction in matter of pleading noted, 
between the action of account and book account. 
MaUhetcs v. T(rwer, 39 Vt. 433. 

Note.— By 8tat. 1872, No. 54, special de- 
fenses, proper for a plea in bar, may be made 
before the auditor in the common law action of 
account. 

124. Set-off. A mere independent set-off, 
not a matter of account, cannot be brought in 
before the auditor, but must be pleaded in the 
county court. HoMom v. Hassam, 22 Vt. 516. 

125. Proceedings. It need not appear of 
record that an auditor was sworn. This will 
be presumed unless the contrary appear. Put- 
nam V. DvUon, 8 Vt. 396. Reed v. Talford, 10 
Vt. 568. 11 Vt. 201. 

126. In the case of three auditors, two may 
make report, provided the other sit at the hear- 
ing, though he may dissent from the majority. 
Thompson v. Arms,^yx. 546. Neipell v. Keith, 
11 Vt. 214. 23 Vt. 465. 

127. It is not necessary Uiat auditors should 
convene and organize before giving notice of 
the time and place of hearing, but such notice 
may be given by one of the number, usually 
the one first named, without the presence of the 
others ; nor need they all convene for the pur- 
pose of an adjournment ; and where the party 
is once duly notified, he must take notice of the 
adjournment. Swinton v. Ertnn, 8 Vt. 282. 

128. An auditor has power, after a cause 
has been heard and submitted, especially before 



making up and publishing his report, to open 
the cause for further testimony. This discre- 
tion might be revised in the county court, but 
error cannot he predicated of it. Cha»e v. 
Spenoer, 27 Vt. 412. 

129. If one of two partners, defendants in 
an action on book, die after the accounts are 
submitted to an auditor, he may proceed to 
audit the accounts notwithstanding. Netcton 
V. Biggins, 2 Vt. 366. 

130. Accounts to be a4)nsted down to 
time of hearing. The auditor must adjust all 
the items of account due and payable at the 
time of taking the account, though not due nor 
accrued at the commencement of the suit, pro- 
vided any part was due and payable before suit 
brought. Ambler v. Bradley, 6 Vt. 119 ;— and 
this, although the result be to change the bal- 
ance and turn the case to the other side. Pratt 
v. G(Ulup, 7 Vt. 344. 

131. It is the duty of a justice of the peace, 
in an action of book account, to adjust the ac- 
counts up to the time of trial ; and of the audi- 
tor, in case of an appeal, to the time of the 
audit. Martin v. Fairbanks, 7 Vt. 97 ; provi- 
ded, that any part of the plaintiff's account had 
l)ecome due at the commencement of the suit. 

Wetherell v. Evnrts, 17 Vt. 219. 

132. This right of the plaintiff to have the 
accounts adjusted down to the time of the audit 
and to have his attachment stand as a security 
for the balance so fohnd due him, is not de- 
feated by an attacliment subsequent to his own. 
Chaffee v. Mularkee, 26 Vt. 242. 

133. The plaintiff drew an order on the de- 
fendant requesting him to pay C a certain sum 
to be accounted for to the defendant on settle- 
ment. The defendant wrote upon the order an 
agreement to pay C what might be due the 
plaintiff after settlement. An attempted settle- 
ment having failed, the plaintiff brought this 
action of book account before a justice and ob- 
tained a judgment from which the defendant 
appealed, and after the appeal paid C the full 
amount of the order, which exceeded the sum 
due the plaintiff. Held, that the defendant was 
entitled to a judgment for the excess. Nor- 
throp V. Sanborn, 22 Vt. 433. 

134. The bringing of an action of book ac- 
count is not per se a revocation of a previous 
authority given the defendant to pay, to a third 
person, certain items of the plaintiffs account. 
Unless otherwise revoked, the defendant will 
be allowed such payments made after suit com- 
menced, though the effect be to change the bal- 
ance to his side. H>, Walker v. Barrington^ 

Vt. 781. 

135. Production of books. In this ac 
tion a party is not bound to produce his original 
book of entries, unless required so to do by the 
auditor, or the court ; and this is matter of dis- 
cretion, first of the auditor, and then of the 



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county court. /7«W, that It was not error in 
this case, to allow a disputed account without 
requiring the production of the original book, 
although this was insisted upon by the other 
party. (G. 8. c. 41, s. 8.) Ward v. Baker, 16 
Vt.287. 

136. Held, that it was not error for an au- 
ditor to receive, on the plaintiflTs side, a letter 
written by the plaintiff to the defendant, which 
he claimed to be a specification of his claim and 
to contain all the facts upon which it was 
based, as a sort of original entry — there being 
no other original entry, and the plaintiff being 
himself a witness. Houghton v. Paine, 29 Vt. 
57. 

137. Parties as witnesses. In the action 
of book account both parties, being made wit- 
nesses by statute, may testify to every material 
fact in relation to the respective accounts prop- 
er to be considered in deciding upon the merits 
of the several claims. Stevens v. Richards, 2 
Aik. 81. Burton v. Ferns, Brayt. 78. Fay 
v. Oreen, 2 Aik. 386. May v. CorletP, 4 Vt. 
12. HOUker v. Loop, 6 Vt. 116. Whiting v. 
Conmn, 5 Vt. 451. McLaughlin v. Hill, 6 Vt. 
20. Blish V. Granger, 6 Vt. 340. Delaware 
v. Staunton, 8 Vt. 48. Fassett v. Viricent, 8 
Vt. 73. Beed v. Talford, 10 Vt. 568. War- 
den ▼. Johnson, 11 Vt. 455. Clark v. Marsh, 
20 Vt. 338. 22 Vt. 611. Carter v. Wright, 25 
Vt. 656. 

138. It is otherwise as to matters which oc- 
cur subsequent to and are independent of the 
account, as su4s?i ; as, for example, a tender, a 
new promise to take the case out of the statute 
of limitations, and possibly some others. Bed- 
field, C. J., in Clark v. Marsh, 20 Vt. 341. 

139. So held, as to a new promise, Paul v. 
TreseoU, 6 Vt. 26. WhiU v. Dow, 23 Vt. 300 ; 
—as to a tender, Pratt v. Gallup, 7 Vt. 344 ;— 
as to a new promise after a discharge in bank 
ruptcy, Spaulding v. Vincent, 24 Vt. 501. 

140. But the party may testify to a credit 
on account, or payment, although the effect of 
establishing it may be to save the account from 
the operation of the statute of limitations, 
Sargeant v. Sunderland, 21 Vt. 284. Hapgood 
V. Southgate, 21 Vt. 584. Noyes v. Cushman, 
25 Vt. 390. 

141. A note, given up to the maker to ap- 
ply on his account against the payee, may as 
well be testified to by the party in the book ac- 
count action, as any other payment. Fassett v. 
Vincent, 8 Vt. 117. 

142. In an action of book account against 
two ; — Held, that the plaintiff might prove by 
one of the defendants that the other was holden 
with him. Keeler v. Mathews, 17 Vt. 125. 

143. Report— copies of accounts to be 
annexed. It is not a matter of discretion, but 
the duty of an auditor, although not requested, 
to return with his report copies of the accounts 



of the parties, and a statement of the items of 
each that he allows, or disallows. Croker v. 
Goodnoic, 42 Vt. 682. Macks v. Brush, 5 Vt. 
70. FTower Brbok Mfg. Co. v. Buck, 16 Vt. 290. 
Bead v. Barlott, 1 Aik. 145. 

144. And if requested, but not otherwise, 
he must also report the facts or grounds of al- 
lowing or disallowing items. Croker v. Good- 
note. Macks V. Brush. Hoyt v. Clark, 89 Vt. 
87. 

145. An exception to the report of an audi- 
tor, that he has not appended to the report the 
account of the excepting party, will not be al- 
lowed, unless it appear afllrmatively, that such 
an account w^as presented at the hearing before 
him. HiU v. Hogaboom, 13 Vt. 141. 

146. Special findings. When requested, 
auditors should report the facts found with the 
particularity of a special verdict ;— upon afi^da- 
vits showing their refusal so to do, their report 
will be set aside. McConneU v. Pike, 8 Vt. 
595. 

147. The report of an auditor stated simply 
that the account presented was disallowed. 
Held sufficient,— it not appearing that he had 
been requested to state the facts or groimds 
upon which he disallowed the account. Wait 
V. Johnson, 24 Vt. 112. 

148. Report in tlie alternative. Audi- 
tors may submit any question of law to the 
court, and for that purpose they may report in 
the alternative. May v. Corlew, 4 Vt. 12. 

149. To report flEtcts,— not evidence. 
An auditor must report facts, — not evidence 
merely. Stoddard v. Chopin, 15 Vt. 443. 45 
Vt. 346. 

150. An auditor must report facts, not the 
evidence of those facts; but the court may 
make all the presumptions which necessarily 
follow from the facts reported. Shaw v. Shaw, 
6 Vt. 69. 

151. How fiEtr conclusive. An auditor 
should report facts, not evidence. His finding 
of facts IS conclusive, and cannot be revised 
by the Supreme Court. Smith v. Woodworth, 
48 Vt. 89. 

152. An error in computation made by an 
auditor is an error of fact, and, when not pass- 
ed upon in the county court, cannot be revised 
or corrected by the Supreme Court. Cobleigh v. 
Stone, 29 Vt. 525. 

153. Where an auditor reports the evidence 
upon which he found a fact, and such evidence 
tended to prove it, his finding is conclusive; 
but if the evidence had no such tendency, his 
finding is erroneous and may be corrected. 
Hodges v. Hosford, 17 Vt. 615. 

154. The finding of a fact by an auditor is 
usually conclusive upon the court; but if the 
matter found by him, as a fact, is merely bis 
inference from other facts specially found and 
stilted, and the proper resulting fact is one 



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which the law would infer from the special 
facts stated, and the auditor makes a mistake in 
law in his inference, the court may disregard 
his ultimate finding, and render judgment ac- 
cording to the legal inference. Briffga v. Briygs^ 
46 Vt. 571. 

155. Upon a report of auditors finding that 
a son had hired with and worked for his father 
some 33 years after becoming of age, and that 
he reascmably deserved to liave a certain sum 
therefor ; that the father had acknowledged an 
indebtedness to the son, but *'did not find, 
otherwise Uian by infercne^^ that the services 
were performed at the request of the father"; — 
Held, that the report sufticiently showed that 
the services were iK»rformed at the request of 
the father, under the mutual expectation of a 
reasonable compensation therefor; and that 
this was sufficient to entitle the son to recover, 
without proof of an express promise to pay. 
The law implies the promise under the circum- 
stances. Way V. Way, 27 Vt. 635. 

156. Where the evidence before an auditor 
has a legal tendency to prove the fact in contro- 
versy, his decision upon the weight and suffici- 
ency of the evidence is conclusive. Biigley v. 
MaulUm, 42 Vt. 184. Wood v. Barney, 2 Vt. 
369. Phelpn v. Wood, 9 Vt. 399. Cottrill v. 
Vandiizen, 22 Vt. 511. 

157. Inference. Whether an auditor comes 
to his result upon direct and positive testi- 
mony, or by inferring facts which might be 
legitimately inferred from the evidence, is im- 
material. His finding is conclusive in either 
case. Bacon v. Vaughn, 34 Vt. 73. Keiit v. 
Hancock, 13 Vt. 519. 

158. All reasonable intendments are to be 
made in support of the conclusions and judg- 
ment of an auditor, and the county court. (See 
case, as to inferences drawn.) Bradatreet v. 
Bank of RoyaUon, 42 Vt. 128. 

159. The report of an auditor should not be 
set aside because the auditor states his conclu- 
sion generally, where, upon either of tlie two 
grounds stated, it was justifiable upon the evi- 
dence. Cahill v. Pat.termn, 30 Vt. 592. 

160. Finding by county court. If an au- 
ditor reports the testimony, instead of finding 
the facts, and a party, without exception or 
motion to recommit, proceeds to a hearing up- 
on the report, he thereby submits the issue of 
fact to the court, and such finding cannot be 
revised by the Supreme Court. Bond v. Clark, 
47 Vt. 565. 

161. Where the county court, instead of 
recommitting the report of an auditor, under- 
takes to decide any question of fact, or to draw 
any inference of fact arising on the report, such 
decision is final. Birchard v. Palmer, 18 Vt. 
208. Barber v. Britton, 26 Vt. 112. 

162. The Supreme Court will only presume 
in aid of the judgment below, that the county 



court inferred such facts from the report, as on 
an examination it can be seen ought to have 
been inferred. Pratt y. Page, 32 Vt. 13. Stone 
V. Foster, 16 Vt 546. 

163. In regard to such inferences as may be 
fairly deduced from the facts stated in an audi- 
tor's report, the Supreme ('ourt considers that, 
in doubtful cases, the construction of the county 
court is to be regarded as conclusive. Per- 
Unau v. Phelps, 25 Vt. 478. 

164. Matters of evidence. If testimony 
before an auditor could be held admissible in 
any view, or in connection with any other evi- 
dence, it cannot be held, upon exceptions, to 
have been inadmissible where the report is, that 
it was offered and admitted *' among other 
things not objected to." Paige v. Morgan, 28 
Vt. 565. 

165. The admission of evidence for the pur- 
pose of proving facts altogether ununportant, 
which could not have prejudiced the objecting 
party and which was admissible for another 
purpose, is not sufficient reason for setting aside 
an auditor's report. Kendrick v. Tarbell, 27 
Vt. 512. 

166. An objection to the admission of testi- 
mony by an auditor must l)e taken by excep- 
tions to his report, and a motion to recommit. 
It is not reached by exceptions to the judgment 
of the county court. Kidder v. Smith, 34 Vt. 
394. 

167. Where a witness, interested as bail for 
the party calling him, testified before auditors 
against the objection of the opposite |)arty, wlio, 
from absence of the record, could not prove 
such interest;— //<'W, that the report in favor 
of the party using tlie witness should be set 
aside. McGonnell v. Pike, 3 Vt. 595. 

168. Affidavits, &c. The Supreme Court 
will not examine reports of auditors upon afli- 
davits, counter statements, questions of fact, or 
matters of discretion for the county court, but 
only upon errors of law. TJiompson v. Arms, 
5 Vt. 546. 

169. Becommitment. A motion to recom- 
mit the report of an auditor will not be enter- 
tained by the Supreme Court, where the case 
stands upon exceptions. Any cause for a new 
trial should be brought forward by petition. 
Hutchinson v. Onion, 24 Vt. 654. 

170. In actions of lK)ok account, where it is 
apparent that all the facts are not stated in the 
auditor's report, the Supreme Coiut has, in some 
cases, been induced to reverse the judgment 
and recommit the report to the auditor to re- 
port more fully, —as in Woodbridge v. Proprie^ 
tors of Addison, 6 Vt. 204. But the practice 
has been otherwise, of late, and the settled 
practice has been for the Supreme Court to deny 
an application to recommit. Clirk v. Whipple^ 
12 Vt. 488. 

171. Where an auditor disallows a charge, 



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the party is entitled to have the pounds of such 
disallowance stated in the report, and if not so 
stated, when requested, the report should be re- 
eomuiitted for amendment ; but where the ob- 
jection is first raised in the Supreme ('ourt, it 
will not be entertained. Goodrich v. Drew^ 10 
Vt. 187. 

172. Where an auditor had reported evi- 
dence, but not facts sufficient to warrant tlie 
jud^nout below, the court, after reversing the 
judj^ent, remanded the case, on recjuest, for 
a further finding and report. WaUh v. Pierce, 
11 Vt. 32. Uunt V. Haynes, 45 Vt. 346. 

173. Where an auditor finds a fact and al- 
lows a charge upon improper testimony, the 
court does not on this account reject the charge, 
but again refers the subject to the same or an- 
other auditor. Warden, v. Johnstyn, 11 Vt. 
455. 

174. Where exceptions were filed to an au- 
ditor's report, and exceptions to the judgment 
thereon, the Supreme Court reversed the judg- 
ment and again referred the cause to the audit- 
or, to make report to the Supreme Court, be- 
cause the facts were not sufticicntly stated to 
raise the questions of law litigated. Eddy v. 
Hitie, 3 Vt. 389. 10 Vt. 140. 

175. Where a report of auditi>r8 is wholly re- 
ject4*d, the whole case* is again submitted to the 
same or another board of auditors, who are to 
hear the whole (»se anew ; or it may be re(H)m- 
mitted simply for amendment, or correction, in 
which case no further hearing will he. had ; or 
It ma^' l)e rec<jmmitted to hear testimony as to 
a particular fact, but this must be by consent of 
parties. May v. Ct/rletr, 4 Vt. 12. 

176. An auditor's report was recommitted 
to attach copies of the accounts. • This the au- 
ditor did, stating the items allowed and disal- 
lowed, and corrected an error in computation in 
his first report, but refused a new hearing upon 
the whole case ; — Held correct, but, dictum, if 
important new testimony had been presented, 
not in the power of the party at the first hear- 
ing, it should have been received. Leach v. 
Shepard, 5 Vt. 363. 

177. On a case being recommitted to an au- 
ditor he has a discretion, whether to require 
the parties to go over anew the whole trial, or 
not, subject to the direction of the county 
court. Mason v. Potter, 26 Vt. 722. 

178. Mistake suggested. Where parties 
adjusted their book accounts and agreed upon 
a baUince due, although no settlement was made 
upon the books, and the accounts were continu- 
ed as before ;—Held, that the auditor in adjust- 
uig the subsequent accounts properly refused to 
go back of the settlement, upon the supposition 
that there was some mistake in it. The error 
most be first discovered, and then it may be 
corrected ; but this would not open the whole 
settled accotint for examination. Hodges v. 



Hosford, 17 Vt. 615. 
Vt. 451. 



Whiting v. Corwin, 5 



VII. Effect of Judgment as a Bar. 

179. In the action of book account, either 
party may sue and insist on an adjustment of 
the account. If the defendant refuses to pre- 
sent his account, although he may have an ac- 
count exceeding the plaintiff's, this is no bar to 
the plaintiff's recovery, unleas the defendant 
shows an agreement, or understanding-* on both 
parts, to have the plaintlirs account apply in 
payment of some claim of the defendant. Scott 
V. Nichols, 12 Vt. 76. 

180. In an action of book account lx?fore a 
justice, the plaintiff omitted to present part of 
the account on his book, claiming and suppos- 
ing that it had been settled. The defendant 
denied the settlement, and presented and claim- 
ed an account in his favor which the plaintiff 
claimed was included in the supposed st^ttle- 
mcnt. The justice found that there had lieen 
no settlement, and allowed the defendant's ac- 
count, giving judgment for the balance between 
that and such of the plaintiff's account as he 
presented. Held, that such judgment was no 
bar, in a subsequent action on b(X)k, to a recov- 
ery for the iti»ms so omitted -the reason for 
failure to present them on the first trial Iwing 
sufficient. Htecens v. Datnon, 29 Vt. 521. 

181. The plaintiff in an action of l)ook account 
cannot divide his account, and make it the sub- 
ject of 8<!veral actions. A judgment in such 
action Is a prima facie bar to all previous exist- 
ing accounts ; but it does not bar items of ac- 
count not embraced in the judgment because 
not then due {McTjUughlin v. Hill, 6 Vt. 20) ; 
— or because omitted by mistake, or other gcMxi 
cause. Warren v. Newfane, 25 Vt. 250. Ste- 
vens V. Damon. 

VIII. Tender. 

182. In an action of book account brought 
originally to the county court, a tender made 
before the commencement of the suit need not 
be pleaded, but may be proved before the audit- 
or ; and if the money tendered be paid to the 
auditor and be by him sent to the court with 
his report, It is sufficient. Woodcock v. Clark, 
18 Vt. 883. 

183. In this action before a justice, a failure 
to produce the tender in court before the jus- 
tice is a waiver of it ; and to keep the tender 
good on appeal, it must be produced at the 
hearing before the auditor, and be returned into 
court with his report. Sargent v. Slack, 47 Vt. 
674. 

184. A tender under the statute, after suit 
brought, can be made in the book action. Peek 
V. Saragan, 27 Vt. 92. 



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BOOK ACCOUNT, IX.— CARRIERS. 



185. A tender in this action first made be- 
fore the auditor, thougli the money is left in 
his hands, is not effective. Wing v. Uurlburt, 
15 Vt. 607. 18 Vt. 886. 

186. In an action of book account, the ac- 
counts between the parties are considered as 
entire, and neither can single out a particular 
item and malcc a valid lender upon it, and 
thereby change the balance ; and this is so 
even as to items accruing after the commence- 
ment of the suit and before the audit. PraU 
V. Gallup, 7 Vt. 844. Wing v. HurtbuH, 15 
Vt. 607. 22 Vt. 519. 

187. Where an independent claim is pleaded 
in set-off in an action of book account, a repli- 
cation of a tender made l)ef ore the plea pleaded, 
though after the conuneneement of the suit, is 
sufficient. Hasmm v. Hasnamy 21^ Vt. 516. 

IX. Statute of Limitations. 

188. The statute of limitations, if not in- 
sisted upon before the auditors in book account, 
cannot be urged as an objection to the accept- 
ance of their report. Newell y. Keith, 11 Vt. 214. 



BURIAL GROUNDS. 

1. Where land was set out and sequestered 
for the enlargement of public biu'ial grounds, 
under G. 8. c. 18, s. 9 ;—JIeld, that it was not 
essential to the ' validity of the proceedings. 



that the damages awarded to the land owner 
should be paid or tendered within the ten day9 
named in tlie statute. Edgecumbe v. Burlington^ 
46 Vt. 218. 

2. Tlie Act of 1868, No. 91, incorporating the 
Green Mount Cemetery Association, authorized 
the city of Burlington to transfer and convey 
to said association the public cemetery in that 
city known as Green Mount Cemetery, in trust, 
to support, embellish and manage the same, 
and to l)e thereafter under the control and man- 
agement of said association for the purposes 
aforesaid. Subsequently, the city set out and 
sequestered certain of the orator's land by way 
of enlargement of the cemetery, under G. S. c. 
18, s. 9, with the view of transferring the cem- 
etery, thus enlarged, to said association in pur- 
suance of the act. The transfer was afterwards 
so made, and upon the express trust and con- 
fidence that the association should, at their own 
expense, support and manage said cemetery for 
purposes of a public burial ground only, con- 
formably to all the laws of the State applicable 
thereto, and to the provisions of the act of 
1868, with a provision for surrender and re- 
verter to the city upon breach of the trust in 
any respect. Held, that such enlargement did 
not destroy the identity of the cemetery, and 
that said act authorized the conveyance thereof, 
as so enlarged, to the association in the manner 
above stated ; and that the needful enlargement 
was not rendered unlawful, or ineffective, be- 
cause of the purpose to transfer the cemetery, 
after thus enlarged, to the association, lb. 



c. 



OARREBRS. 



1. Ck>mmon carrier— His liability. The 
master of a canal boat on Lake Cliamplain, car- 
rying goods for hire, is a common carrier, and 
liable as such for all losses not occasioned by 
the act of God. Spencer v. DaggeU, 2 Vt. 92. 

2. The charter of the Champlain Transpor- 
tation Co. extended to the carrying of all goods, 
wares and merchandise, **and all other articles 
and things usually transported by water,*' on 
Lake Champlain. It appearing that, at the 
time the company took the charter and went 
into operation, bank bills were usually carried 
by water craft upon the lake ;—Heldy that their 
powers as a corporation extended to the carry- 
ing of bank bills, but did not necessarily con- 
stitute the company common carriers of bank 
bills so as to compel them to assume the risk of 
such carriage, if they should confine their busi- 
ness to carrying other dissimilar commodities; 



but if they assumed the business of carrying 
bank bills, they assumed the liability of com- 
mon carriers in respect thereto. Farmer^ iS; 
Jfeeh^. Bank v. Champ. Tr. Co., 23 Vt. 186. 

3. Common carriers by water are not an- 
swerable for damage to goods which is occa- 
sioned by the act of Providence ; but are bound 
to provide safe and seaworthy vessels, suitable 
to the season and the difficulties of the naviga- 
tion. Day V. Bidley, 16 Vt. 48. 

4. In an action against a common carrier 
for loss of goods, evidence of a departure from 
the usual course of events, as the non-arrival of 
the goods at their place of destination (Brint- 
naU V. Bar, <fc W. R. Co., 82 Vt. 665) ; an un- 
usual delay in the delivery {Mann v. Birehard^ 
40 Vt. 826) ; or the landing of the goods out of 
course (Daj/ v. Bidlejf, 16 Vt. 48), is sufficient 
to throw upon the carrier the burden of account- 
ing for the loss. lb, 

5. All common carriers are responsible for 



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the loss of goods by a delivery to the wrong 
person ; and it is no excuse, in such case, that 
they delivered them in the customary manner 
and in the usual course of business. Winslow 
V. Vt, & Mass, R. Co., 42 Vt 700. 

6. One Collins, whom the plaintiffs well 
knew as Collins, fraudulently induced them to 
send certain goo<lfl by the defendants' railway 
to the address of J. F. liol)erts, Boston, Mass., 
C^ollins representing that there was such a 
man who had ordered the goods. There was 
no such person as J. F. HolHTts. Upon the 
arrival of the goods in l^)8ton, Collins applied 
to one (lough, who was in the employ of a 
truckman and accustomed to take freight from 
the defendants' depot, and, informing C'lough 
that his name was J. F. Roljerts, requested 
Clough to get the goods. Clough went to the 
de'^t and, upon informing the defendants' 
freight agents there that Kolierts had directed 
him to get the goods, they delivered the goods 
to C'lough, who receipted for them in his own 
name and took away the goods, and delivered 
them according to C^ollins's order to parties who 
had purchased them of Collins, representing 
himself to l)e J. F. Roberta. C7ollins got pay 
for the goods and absconded. //fW, that the 
defendants were liable for the goods as common 
carriers ; that here was a misdelivery, and, 
there being no such man as lioberts, the goods 
should have Ix^n held for the consignors ; that 
the error in the direction of the goods did not 
mislead the defendants, and they were guilty of 
actual negligence in the delivery, and would be 
liable even on that ground. Ih. 

7. Notice. A common carrier may, by 
general notice brought home to the owner of 
the things delivered for carriage, limit his res- 
ponsibility for carrying certain commodities 
beyond the line of his general business, or he 
may make his responsibility dependent upon 
certain conditions,— as having notice of the 
kind and quantity of the things, and a certain 
reasonable rate of premium for insurance paid 
beyond the mere expense of carriage. lUdfield, 
J., in Farm, iSb Mech. Bank v. Champkun Tr. 
Co., 23 Vt. 186. 

8. End of transit. The responsibility of a 
common carrier, as such, continues after the 
goods have reached their destination, until the 
party entitled to them has had a reasonable time 
to call for, examine and take them. Winshw v. 
VL & Mas». R. Co,, 42 Vt. 700. Blumenthal 
V. Brainerd, 88 Vt. 402. 

9. A wharfinger is as much a public person 
as the carrier himself ; and where the carrier 
by steamboat or other vessel, in the due and 
common course of his business, delivers his 
goods or parcels into the custody of the whar- 
finger upon the wharf, the transit is ended, and 
his responsibility as carrier ceases, unless he 
has, either expressly or by fair implication, un- 



dertaken to do something more, Sfivper v. Jos- 
Un, 20 Vt. 172; — and the question as to the 
time and place at which the duty of the carrier 
ends, is one of contract to be determined by the 
jury from a consideration of all that was said 
by either party at the time of the delivery and 
acceptance of the goods for carriage, the course 
of the business, the practice of the carrier, and 
all other attending circumstances, the same as 
in case of any other contract, in order to deter- 
mine the intention of the parties. Farm, db 
Mech. Bank v. ChampUun Tr. Co., 28 Vt. 186. 
85 Vt. 619. 38 Vt. 413. 

10. Detention for freight. i/^W, that re- 
plevin can Ik* maintained against a common car- 
rier for grxxls detained by him under a claim of 
lien for freight and charges, after demand of the 
goods by the owner and a n^fusal, in case the 
damages to the gootis, for which the carrier is 
liable, exceeds the claim for freight and charges. 
Dyer v. Grand Trunk R. Co., 42 Vt. 441. 

11. Private carrier— Agent of necessity. 
The defendant, a private carrier, contracted late 
in the fall to trans|)ort by canal boat a cargo of 
oats for the plaintiff from Burlington to New 
York. Both parties expected that the boat 
would reach New York that fall, but the boat, 
without the fault of the defendant, got frozen 
in on the route, and was obliged to lie by all 
winter. The safety of the cargo and of the boat 
required that the oats should be removed and 
safely stored, and this was done by the defend- 
ant. On the opening of navigation, the next 
spring, the oats were reloacled and delivered in 
New York. Held, that the defendant could re- 
cover of the plaintiff the expense of handling 
and storing the oats. Beckunth v. Frisbie, 32 
Vt. 559. 

12. Party to sue. The plaintiffs were 
common carriers by a boat which, with the 
merchandise on board, was lost by the default 
of the defendant in towing it. Held, that as 
they had a possession coupled with an interest, 
they could recover the value of the merchandise 
lost, although they had not paid the owners, 
nor had been paid for freigiit of the goods. 
WhiU V. Bascom, 28 Vt. 268. 

13. The consignor who owns the goods and 
sustains the injury from the damage or loss, is 
the proper party to bring an action against the 
carrier. Blumenthal v. Brainerd, 38 Vt. 402. 

See Railkoad. 



OASES OBinOISED- 

Approved, Doubted, or Overrflbd. 

Adams v. Johnson, Brayt. 56, as to protec- 
tion of equitable assignee, overruled by Strong 
v. Strong, 2 Aik. 378. 



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124 



CASES CRITICISED. 



Aldrich V. Londonderry^ 5 Vt. 441, criticised 
in Worcester v. BtiUard, 88 Vt. 60. 

Ames V. FisJier, Brayt. 39, overruled by 
Kingsland v. Adams, 10 Vt. 201. 

Atkinson v. Brooks, 26 Vt. 569, overruled 
by AusUn v. CurUs, 31 Vt. 64. 

AusUn v. AusUn, 9 Vt. 420, commented 
on and explained in DunkUe v. Adams, 20 Vt. 
415. 

Barber v. Britton, 26 Vt. 112, as to what 
presumptions may be made in favor of the 
judgment below, questioned in Pratt v. Page, 
32 Vt. 19. 

Barlow v. Burr, 1 Vt. 488, as to costs on ex- 
ceptions, disproved in Downing v. Roberts, 22 
Vt. 457. 

Bamet v. Concord, 4 Vt. 564, substantially 
overruled on one point, in Plymouth v. Mendon, 
23 Vt. 451. 

Barrett v. Copeland, 20 Vt. 244, reasons 
and argument overruled in Dana v. Lull, 21 
Vt. 383. BelUnim v. AUen, 22 Vt. 108. 

7/a^ V. Doioner, 4 Vt. 178, wrongly de- 
cided. See Paul v. Burton, 32 Vt. 148. 

Beckmth v. Hayward, Brayt. 55, as to pro- 
tection of equitable assignee, overruled by 
Strong v. Strong, 2 Aik. 373. 

Bigelow v. TopUff, 25 Vt. 289. Dictum of 
Isham, J., as to equality of attaching creditors 
and purchasers, overruled in Ilackett v. CaHen- 
der, 32 Vt. 108. 33 Vt. 252. 35 Vt. 2. 43 Vt. 
409. 

Blaekmer v. Blacktner, 5 Vt. 355. Decision 
inapplicable by change of statute. Lytle v. 
Bond, 39 Vt. 388. 

Bloss V. Kittridge, 5 Vt. 28, on point of 
pleading, is opposed to Wighiman v. Carlisle, 14 
Vt. 296. 

Boardman v. KeeUr, 2 Vt. 65. Dictum as to 
dormant partner being plaintiff, overruled by 
IlilUker v. Loop, 5 Vt. 116. Lapham v. Qreen, 
9 Vt. 407. 

Brainerd v. Burton, 5 Vt. 97, overruled on 
one point by Pam v. Vail, 18 Vt. 277. ^mt«A 
V. Atkins, 18 Vt. 461. Boater v. J5t«A, 29. Vt 
469. 

Brooks V. Pay«, 1 D. Chip. 340, overruled on 
one point in Dewey v. Washburn, 12 Vt. 580. 

Brown v. Turner, 1 Aik. 350. Dictum as to 
partition disapproved in Baldwin v. ^WrfcA, 34 
Vt. 529. 

Brundridge v. Whitcomb, 1 D. Chip. 180, as to 
offset, overruled in I^eavenworth v. Lapham, 5 
Vt. 208. ^dflww V. BUss, 16 Vt. 42. 

Pt«jA; V. Pickwell, 27 Vt. 157. '* The opinion 
has not the force of authority beyond the point 
of judgment." Sterling v. Baldwin, 42 Vt. 309 
Approved *'to the extent of the matter decid 
ed." Fitch v. Burk, 38 Vt. 687. 

Bu4ik V. Sguiers, 28 Vt. 498, limited and ex 
plained m Hodges v. Eddy, 38 Vt. 327. 

BurUtigton v. Calais, 1 Vt. 885. On the 



question of evidence, **the case is rather an over- 
strained one." Underwood v. Hart, 23 Vt. 130. 

Burton v. Austin, 4 Vt. 105, questioned in 
Beach v. Beach, 20 Vt. 83. 

ChapUn v. HiU, 24 Vt. 528, qualified in- 
Russell V. Dodds, 37 Vt. 497. 

CMpman v. iSatry^, 1 Tyl. 83. 2 Tyl. 61, 
that an execution issued after a year and a day 
is void, overruled by Fletcfter v. Mott, 1 Aik. 
339 ; as to ejectment by an executor, overrul- 
ed by Aldis V. Burdick, 8 Vt. 21. 

Chittenden v. Barney, 1 Vt. 28, goes too far. 
Gates V. Adims, 24 Vt. 74. 

Claflin V. Hubbard, Brayt. 38, overruled, as 
to costs, by AUard v. Bingham, 8 Vt. 470. 

Clapp V. Beardsley, 1 Vt. 151, limited in 
Aldis V. Burdick, 8 Vt. 21. 

Conner v. Chase, 15 Vt. 764, qualified in 
HaU V. lA)omis, 42 Vt. 565. 

i><MJW V. Goodnow, 27 Vt. 715, explained 
in Putnam v. TWn, 34 Vt. 429. 

Davis V. White., 21 Vt. 751, overruled in 
Hodges v. J^defy, 38 Vt. 346. 

Dean v. 7>6aw, 27 Vt. 746. Dictum as to 
presumed capacity of testator overruled by 
Williams v. Robinson, 42 Vt. 658. 

In re Dougherty, 27 Vt. 326. See State v. 
ConUn, infra. 

Downer v. Fox, 20 Vt. 392. Di/itum, that 
an attaching creditor should not be made de- 
fendant in a bill of foreclosure, disapproved 
m Chandler v. Dyer, 37 Vt. 345. 

Drake v. CoUins, 1 Tyl. 79, 2 Tyl. 63, 
overruled by Bagley v. Wiswall, Brayt. 23. 
Woodrotc V. 0' Conner, 28 Vt. 776. 

Edgell v. Ixywell, 4 Vt. 405, explained in 
iJewt V. Reynolds, 32 Vt. 139. 

Famham v. Ingham, 5 Vt. 514, overruled 
in /#oa« V. J^fifctrw, 11 Vt. 679. 

Famsworth v. r««<m, 1 D. Cliip. 297. 
Question of pleading — Dictum disapproved in 
Kinsman v. Page, 22 Vt. 631. 

Farr v. Braekett, 30 Vt. 344, — dictum as to 
assignments disapproved in Passumpsic Bank 
V. Strong, 42 Vt. 301. 

Fiizsimmons v. Joslin, 21 Vt. 129, approved 
in i^J^W V. SUams, 42 Vt. 111. 

ii^&nt V. Day, 9 Vt. 345, doubted m Pitkin 
V. Flanagan, 23 Vt. 164, and JfetiA v. Goodwin 
31 Vt. 276: Overruled by Adams v. Flanagan, 
36 Vt. 400. 

Gaffield v. i?7io«, Brayt. 234, overruled by 
jltf«^» V. Palmer, 2 Vt. 489. 

Gibson v. i>flw?w, 22 Vt. 374. Qacere raised 
—settled in Chandler v. ITarr^w, 30 Vt. 510. 

Goodenow v. Stafford, 27 Vt. 437, limited in 
Carruth v. Ti^A^?, 32 Vt. 626. 

Greensboro v. UnderhiU, 12 Vt. 604, ques- 
tioned in Northfield v. Plymouth, 20 Vt. 582. 

HackeU v. Callender, 32 Vt. 97, approved in 
Pemw V. ^<s«i, 35 Vt. 2. i?VeW v. Steams, 
42 Vt. 112. 



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CASES CRITICISED. 



125 



HcUe V. MiOer, 15 Vt. 211. Dicta as to form 
of action overruled by HaU v. Ray^ 40 Vt. 
579. 

narrU v. BuUoek, Brayt. 141, overruled by 
Putney V. Bellatm, 8 Vt. 272. 10 Vt. 489. 

Harris v. Holmes, 30 Vt. 362. Dieta as to 
receiving evidence provisionally, overruled by 
Conn, & Pass. R. R. Co, v. Baacter, 82 Vt. 805. 

36 Vt. 88. Sterling v. SterUng, 41 Vt. 80. 
HoftHngton v. Harrington, 10 Vt. 505, over- 
ruled in Le Barron v. Le Barron, 85 Vt. 870. 

Hartland v. WHUamstown, 1 Aik. 241. 
Dietum overruled in Landgrof>e v. Pawlet, 
20 Vt. 809. 

Hathaway v. Allen, Brayt. 152, limited in 
Clossan v. Staples, 42 Vt. 223. 

Hasen v. Haxen, 19 Vt. 608, overniled in Xe- 
Barron v, /^ Barron, 35 Vt. 370. 

i7i« V. Kendall, 25 Vt. 528, questioned in 
ir<wf V. SUttns, 83 Vt. 308. 

//i^ V. Pratt, 29 Vt. 126. Opinion criticised 
in Fenno v. Weston, 31 Vt. 352. 

Hines v. iSfewfe, 14 Vt. 99, overruled by Hay- 
ward Rubber Co. v. Dunklee, 30 Vt. 29; 
Dotens v. Belden, 46 Vt. 674 ; Alger Y.Andrews 
47 Vt. 238. 

Hodges v. (?r<^m, 28 Vt. 368, limited and ex- 
plained in Ballard v. Bond, 82 Vt. 359 ; King 
V. Smith, 38 Vt. 25. 

HoUey v. WVn<>o»ib* Turnpike Co., 1 Aik. 74, 
explained as a decision of fact on a case stated, 
in Ijeicester v. Piltsfard, 6 Vt. 247. Sec Ses- 
sions V. Neicport, 23 Vt. 12. 

Hubbard v. De^rey, 2 Aik. 312. The reason- 
ing and dicta of Hutchinson, J., criticised in 
Benedict v. Heineberg, 43 Vt. 281. 

Hutchins v. Hawley, 9 Vt. 295, is not now 
the law. Wheeler v. H^tnn, 38 Vt. 122. 

IngersoU v. r«w Gilder, 1 D. Chip. 59, over- 
ruled in Starktpeather v. Loomis, 2 Vt. 573 ; 
Brottn V. i?<foon, 23 Vt. 447. 

Jaekman v. -Y«r Haven, 42 Vt. 591, over- 
ruled in Bueklin v. Sudbury, 43 Vt. 700. 

ifiriy V. i/i^o, 13 Vt. 103. Dictum limited 
in Wait v. Richardson, 33 Vt. 192. 

Knapp V. Ijevanway, 27 Vt. 298, qualified 
in Lamstm v. Bradley, 42 Vt. 173. 

Londonderry v. ^c<<m, 8 Vt. 122, reconsid- 
ered and approved in Dummerston v. Neiofane, 

37 Vt. 9. 

Ijyman v. }ri«d*?r, 29 Vt. 805. Expressions 
in the opinion criticised in Jarvis v. Barnard, 
30Vt. 503. 

Martin v. Bigelotc, 2 Aik. 184, overruled 
by JoAfM V. Stevens, 3 Vt. 308; i>a«« v. Fuller, 
12Vt. 178. 25Vt. 231. 

MiK^n V. Blodget, 1 Aik. 376. Dictum as to 
demurrer overruled in ParUn v. Bundy, 18 
Vt. 582; >r^?»fpr V. FA^^oc*, 83 Vt. 144. 

Martin y, Fairbanks, 7 Vt. 97, questioned 
or overruled in WethereU v. BDorts, 17 Vt. 
219. 



MatUson v. IT^^^tt, 13 Vt. 258, overruled, 
oi\,the main point, by Ijatham v. Ijeiois, cited in 
Hodges v. i^Vw, 36 Vt. 81. 

McOray v. Wheeler, 18 Vt. 502, criticised in 
Joyal V. Barney, 20 Vt. 154. 

Micfiigan State Bank v. Leavenworth, 28 Vt. 
209, overruled by ^t^m v. Cwr^, 31 Vt. 64. 

Middlebury v. Hubbardton, 1 D. Chip. 205, 
overruled, as to fonn of action, in Danville v. 
Putney, 6 Vt. 512 ; Pawlet v. SandgaU, 19 Vt. 
680 ; Castleton v. JftVi^, 8 Vt. 209 : Criticised 
and in part overruled in Worcester v. Ballard, 
38 Vt. 60. 

Moore v. Jiw^, 28 Vt. 789, disregarded in 
NichoU V. BeUmts, 22 Vt. 681. 

Mott V. ifptt, 5 Vt. Ill, and SnJow v. Conant, 
8 Vt. 801 , as to offsets, seem opposed to each 
other, and questioned in Adams v. BUss, 16 Vt. 
42. 

Mussey v. Noyes, 2Q Vt. 472, that an assign- 
ment contrary to statute is wholly void, de- 
nied in Merrill v. Englesby, 28 Vt. 160, 168. 

Mwnson v. Hastings, 12 Vt. 346, explained 
in Whitcomb v. Wokott, 21 Vt. 368. 

Nelson v. Denison, 17 Vt. 77, questioned in 
McKenzie v. Ransom, 22 Vt. 831. Hammond 
V. H^fW^, 25 Vt. 347. 

Newbury v. Brunswick, 2 Vt. 151, overruled 
on one point in Landgrove v. Pawlet, 20 Vt. 
309. 

Nichols V. Holgate, 2 Aik. 140. Dictum that 
an attaching creditor should not Ik? made de- 
fendant in a bill of foreclosure, disapproved in 
Cha?idler v. Dyer, 87 Vt. 845. 

Northfield v. Plymouth, 20 Vt. 682, on the 
point of admitting irrelevant testimony and 
then cliarging it out, denied and overniled. 
Conn, d Pass. R. R. Co. v. Ba^eter, 32 Vt. 805. 
Wood V. Willard, 86 Vt. 88. Stirling v. SUr- 
ling, 41 Vt. 91. 

Ouimit V. Henshaw, 35 Vt. 605, criticised in 
Blumenth^d v. Brainerd, 38 Vt. 416. 

Paddleford v. Bancroft, 22 Vt. 529, limited 
in AldHch v. ^cm^tt, 38 Vt. 202. 

Paddock v. CWfty, 18 Vt. 486, questioned, as 
to statute of limitations, in Carruth v. Paige, 
22 Vt. 179 ; cited in Burton v. Stevens, S4 Vt. 
188, and Hill v. Kendall, 25 Vt. 581 ; impugned 
in Moore v. Stevens, 38 Vt. 808. 

Paddock v. St/rowbridge, 29 Vt. 470. The 
author states, on the authority of Judge Ben- 
nett, that this opinion of the Chief Justice was 
prepared as a dissenting opinion, and got pub- 
lished, erroneously, as the opinion of the court. 

Page v. Johnson, 1 D. Chip. 388, overruled 
on one point by Way v. Swift, 12 Vt. 890. 

Parker v. Bixby, 2 Tyl. 466, overruled in 
Brown v. Wnght, 17 Vt. 97. 

Phelps V. Parks, 4 Vt. 488, commented upon 
and distinguished from Perry v. Whipple, 38 
Vt. 278. 

Pi/n-ee v. GiUon, 9 Vt. 216. IHcti, of Wil- 



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126 



OASES CRITICISED. 



liams, C. J., dieapproved in Qleamm v. Ot/vw, 
35 Vt. 595. 8pene&r v. Dearth, 48 Vt. 103. 

Pike V. HiU, 15 Vt. 183, qualified in PaddU^ 
ford V. BaTusroft, 22 Vt. 536 ; but sanctioned in 
Eastrnftn v. WatermaUy 26 Vt. 500. Farr v. 
Liidd, 37 Vt. 160. 

Pinney v. FellowSy 15 Vt. 525, criticised for 
its reasons on one point in Dewey v. Dewey, 35 
Vt. 560. 

Poor V. WowJ^m, 25 Vt. 284, approved in 
Field V. SteanM, 42 Vt. 111. 

Powell V. Bratcn, 1 Tyl. 285, overruled in 
7?rm/>n V. Wriffht, 17 Vt. 97. 

Pr«6fo V. Bottom, 27 Vt. 249, commented 
upon in 07iamberlin v. ScoU, 33 Vt. 84. 

Provoftt V. Hantood, 29 Vt. 219. Rule of 
damages explained in Whitamnb v. Oilman, 35 
Vt. 299. 

Putney v. DummerHton, 13 Vt. 370, ques- 
tioned in ShekUm v. Fairfax:, 21 Vt. 102, and 
contradicted by Worcester v. Ballard, 38 Vt. 60. 

/?i(V? V. Mtmtpelier, 19 Vt. 470, limited in 
CaHnedy v. StocMridge, 21 Vt. 391. 

/i??V V. Tttlmndge, 20 Vt. 378. 7>/Vt^i ovcr- 
rided in Ohandler v. HWj-m, 30 Vt. 512. 

Hiford V. Montgomery, 7 Vt. 411. Reason- 
ableness of rule in that and kindred cases ques- 
tioned in Deering v. Aiuttin, 34 Vt. 334. 

HoberUi v. Grin^Nyld, 35 Vt. 496, affirmed in 
/?«i7^fl/ v. MmtUon, 42 Vt. 188. 

RobiTmon v. Hutchinm7i, 20 Vt. 45. Dictmn 
that capacity of testator is presumed, overruled 
by WilUamn v. Robi^mm, 42 Vt. 658. 

Sanford v. Ntrrtoii, 17 Vt. 285. Opinion 
criticised in Sylvester v. Dmtner, 20 Vt. 359-60. 

Haund^TH v. //rw/v, I D. ( -hip. 363, overruled 
by Bradley v. Bentley, 8 Vt. 243. 11 Vt. 079. 

SfJtftianM V. Gilbert, Hrayt. 75. Not followed. 
Giddiftgs v. Mnnnim, 4 Vt. 312. 

/<A:/:if V. *Sf;/rt<v, 23 Vt. 279, overruled by ray- 
/«>r V. Boardman, 25 Vt. 581 . f/<w^/< v. Taylor, 
30 Vt. 42. (7<;^»A V. Bvjefrell, 37 Vt. 337. 

Smith V. Shnmimy, 2 Tyl. 74, overruled in 
part by Boirdinh v. Peckh^tm, 1 I). C'liip. 145. 
i?w^^ V. ///i^/, 20 Vt. 282. 

Snow V. ConanU 8 Vt. 301, and Mott v. Jfott, 
5 Vt. Ill, as to offsc^ts, seem opposed to each 
other, and questioned in Adams v. Bliss, 16 Vt. 
42. 

St. Albans v. Georgia, Brayt. 177, overruled 
by Londonderry v. Wiiulham, 2 Vt. 149. 3 Vt 
24. 

Stanley v. Bobbins, 36 Vt. 422. Dicta as to 
assignments overruled in Paseumpsic Bank v 
Strong, 42 Vt. 301. 

Stanton v. Stanton, 37 Vt. 411, commented 
upon and distinguished from Thrall v. i/zvi^f, 
40 Vt. 540. 

State v. Boston, &e., R. Co,, 25 Vt. 445, as 
to cost, qualified in State v. Bradford, 32 Vt. 54. 

StaU V. ConUn, 27 Vt. 318. Inre Dmtgherty, 
27 Vt. 326. /Stof^ V. Freeman, 27 Vt. 623. 



-O.'Vito, that certain minor offenses do not come 
within Art. 10 of bill of rights, condemned in 
StaU V. Peterson, 41 Vt. 524. 

StaU V. Freeman, 27 Vt. 528. See State v. 
Conlin, supra. 

StaU V. Johnson, 28 Vt. 512, affirmed in 
StaU V. Reed, 39 Vt. 417. 

StaU V. /. N. B., 1 Tyl. 36, overruled by 
StaU V. PAf(p«, 2 Tyl. '374. 

StaU V. i?oorf, 12 Vt. 396, overruled, on the 
point of a court's taking knowledge of the law 
of another State, in StaU v. Horn, 48 Vt. 20. 

SiaU V. Towne, 28 Vt. 771, questioned in 
Motyre v. Stevens, 33 Vt. 308. 

Stevens v. Adams, Brayt. 29, overruled by 
Turner v. Ixntry, 2 Aik. 72. 

Stevens v. Wilkins, 8 Vt. 231, overruled by 
Jdann v. Holbrt^ok, 20 Vt. 523. 

SUphenson v. Clark, 20 Vt. 624, limited and 
explained, in BvrrottH v. SUbbins, 26 Vt. 659. 

Stoddard v. Allen, N. Chip. 44, overruled by 
many cases since. 

Strong v. Allen, Brayt. 232, overruk*d by 
Auittin V. Palmer, 2 Vt. 489. 

Strang v. Garfield, 10 Vt. 504. Dietum of 
Phelps, J., <loubted in Ha/v«r>7t v. Brainard, 33 
Vt. 90. 

Strong v. Strong, 2 Aik. 373, overruled on 
one i>oint by /yOf^W v. L^land, 3 Vt. 581. i*/irMr 
V. J/uHt, 26 Vt. 308. 

7'aft V. /*i^, 14 Vt. 405. Dictum as to in- 
terest against infants, overruled in Bradley v. 
Pratt, 23 Vt. 378. 

TayUyr v. Nichols, 29 Vt. 104. Dictum as to 
official oaths denied in Courser v. Poicers, 34 
Vt. 517. 

Thayer v. i>fl?5/V», 38 Vt. 163, is imperfectly 
n^ported. See Sterling v. SUrling, 41 Vt. 93. 

Thrall v. Seitard, 37 Vt. 573, explained and 
affirmed in Hunter v. Kittredge, 41 Vt. a59. 

rw/^ V. IfV^py, 23 \ t. 355. Approval of FitU 
V. //«« (9 N. II. 441), qualified in Gilson v. 
Spear, 38 Vt. 314. 

Trask V. Donoghue, 1 Aik. 370, overruled 
on one point by Roberts v. !/«//, 35 Vt. 28. 

Tyler v. lAiVirop, 5 Vt. 170, has l)een fol- 
lowed in cases precisely identical— not to be ex- 
tended, &c. Spear v. FUnt, 17 Vt. 498. Har- 
riman v. Swift, 31 Vt. 385. Bradish v. Redwa^f, 
35 Vt. 426. 

F«V5Avry V. ra/e, 1 D. Cliip. 241, "has been 
regarded as a sound case only upon its peculiar 
facts." OaUs v. Ixfcktcood, 27 Vt. 287. 

Vermont Central R. Co. v. Hills, 23 Vt. 685. 
Ih'ctum questioned in Swazey v. Brooks, 34 Vt. 
455. 

Ward V. Sharp, 15 Vt. 115, limited in Davis 
v. Converse, 35 Vt. 508. 

Weed V. NutUng, Brayt. 28, overruled by 
Clough V. Brown, 38 Vt. 179. 

Wells V. ifiw^, 17 Vt. 508, reversed in U. S, 
Sup. Ct, 7 Howard 272. 



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CASES CRITICISED.— CHANCERY, I. 



127 



Wetfnare v. Blusk^ Brayt. 55, as to protection 
of equitable assignee, overruled by Strong v. 
Strtmg, 2 Aik. 873. 

Wheeler v. Lems, 11 Vt. 265, limited in Bull 
V. BUSS, 30 Vt. 131*. 

Wheeler v. Wheeler^ 11 Vt. 60, commented on 
in EUswarth v. Fogg, 36 Vt. 358. 

W/tite V. Comstoek, 6 Vt. 405, affirmed in 
Burnett v. Wordy 42 Vt. 89. 

Whitman v. Potonal, 19 Vt. 229. Bietum of 
BaciSj J., disapproved in Jakeway y.Barrett^ 
38 Vt. 825. 

TTAiWfe V. Skinner, 28 Vt. 581, overruled as 
to oral assignment, &c., by Noyes v. Broken, 88 
Vt. 431, and Wescott v. Potter, 40 Vt. 271. 

Wikox V. Sherwin, 1 D. Chip. 72, over- 
ruled by Blood v. i»«yr<f, 17 Vt. 618. 

Williams v. Hieks, 2 Vt. 36, criticised and 
limited in Clough v. Patrick, 87 Vt. 421. 

IFriMfnor v. Jacob, 1 Tyl. 241, overruled by 
FairfUld v. ^a«, 8 Vt. 68. 

Wright v. BooUtOe, 5 Vt. 390, overruled by 
FuUam v. /w«, 37 Vt. 659. 

Young v. e7t«W, Brayt. 151, overruled, on 
one point, by. SPinton v. Banninter, 2 Vt. 464. 



CERTIOBAEI. 

1. Form of writ of certiorari and return, 
in case of error. Bracket v. *Stote, 2 Tyl. 152, 

2. In cases where the county court exercises 
its jurisdiction otherwise than according to the 
course of the common law, as in road cases, &c. , 
the remedy is by certiorari, mandamus, or other 
proper writ, and not by writ of error, or excep- 
tions. Beckwith v. Houghton, 11 Vt. 603. 
Courser v. Vt. Central R. Co., 25 Vt. 476. 
sales V. Windsor, 45 Vt. 520. 

3. In regard to all prerogative writs, whereby 
the Supreme C'ourt assumes a supervisory juris- 
diction over subordinate tribunals, it exercises 
a discretion in withholding the remedy, even 
where it is obvious that some formal error has 
intervened ;— as on petition for a certiorari, 
where the pecuniary interest involved is very 
small. Paine v. Leicester, 22 Vt. 44; and 
where no injustice has been done. Lyman v. 
BurUngton, 22 Vt. 131. 

4. The writ of certiorari is not demandable 
as a matter of strict legal right, but it rests in 
the discretion of the court to grant, or refuse 
it. The petitioner must show that substantial 
injustice has been done, and that this may be 
remedied if the writ is awarded. It is not 
every error in the proceedings below that will 
induce the court to issue the writ. Jjondonderry 
V. Peru, 45 Vt. 424. Paine v. Leicester, 
Lyman v. BurUngton. Woodstock v. Oallup, 
28 Vt. 587. 

5. Where the error is not one affecting the 



substantial justice of the case, the writ has been 
uniformly denied. But if the writ be granted, 
and error appears, the court must quash the 
proceedings. West River Bridge Co, v. Dix, 
16 Vt. 446. RoyaUon v. Fox, 5 Vt. 458. 
Myers v. Pownal, 16 Vt. 415. Rockingham v. 
Westminster, 24 Vt. 288. Pomfret v. Hartford, 
42 Vt. 184. Chase v. Rutland, 47 Vt. 393. 

6. Questions of discretion of the county 
court, in highway cases, cannot be revised on 
certiorari, — as, whether the public good requir- 
ed a free road, the assessment of damages for 
the franchise of a bridge corporation, &c. West 
River Bridge Co. v. Bix. 

7. Upon certiorari, the Supreme Court does 
not retain the case for further proceedings, nor 
render such judgment as the county court 
should have rendered, as on a writ of error, 
but eithpr quashes the proceedings altogether, 
or, after reversing some erroneous judgment, 
remands them for further proceedings. Sum- 
tier V. Hartland, 25 Vt. 641. 

8. As the issuing of a writ of cerUoraH is, 
to a great extent, matter of discretion, the prac- 
tice is to hear the merits of the case upon the 
petition for the writ, and practically to decide 
the whole case upon the granting or refusing of 
the writ. Walhridge v. Walbri^ge, 46 Vt. 617. 



CHANCERT. 

I. JUHISDICTION. 

1. Ordinary jurisdiction. 

2. limitation by legal remedy. 

3. Auxiliary jurisdiction. 

4. Retaining juHsdietion once attacJied. 
II. Suit Where To Be Brought, - Service, 

Etc. 
III. Pleadings. 

1. TfieBill. 

2. Demurrer. 

3. Plea; Answer; Cross- BiU. 
IV. PRo<mEDiNG8 After Issue. 

1. The testimony. 

2. Report of Master. 

3. The decree. 

V. Proceedings After Decree. 

1. Appeal. 

2. Hearing on appeal. 

3. Mandate. 

VI. Revisory Proceedings. 

I. Jurisdiction. 

1. Ordinary jurisdiction. 

1. Amonnt in controversy. Under a 
bill in (*quity to account, the ** matter in dis- 
pute," as determining the jurisdiction of the 
court (G. S. c. 29, s. 3), is the difference he- 



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tween the respective claims of the parties. But 
if brought bona fide, the Jurisdiction does not 
lapse because the master reports a balance less 
than f50. Wanhbum v. Washburn, 28 Vt. 
576. 

2. A motion to dismiss a suit in chancery 
on the ground that the matter in controversy 
does not exceed fifty dollars, if not made in the 
court of chancery, will not be considered in the 
Supreme Court. Waahbum v. Dewey, 17 Vt. 
92. 

3. Marriage contract. A court of chan- 
cery, under its common equity jurisdiction, 
may rescind or relieve against a marriage con- 
tract, or annul a contract solemnized l)efore a 
magistrate or a minister of the gospel, if ob- 
tained by force, fraud or imposition, or under 
a mistake as to the legal effect of such solem - 
nization by one party, if the other knew the 
legal effect and also knew that th(^ party was 
umier such mistake, where such ceremony lias 
not been followed by consummation, or cohabi- 
tation; — so decreed, Clark v. Field, 13 Vt. 
4«0. 

4. Sureties. The subjtK^t of equitable re- 
lief in behalf of sureties is one of original juris- 
diction in a court of chancery, and, although 
the liability of sureties has come to be governed 
by the same principles at law as in equity, the 
jurisdiction of the court of chancery is not af- 
fected thereby ; and it is not in the power of a 
creditor, by first commencing proceedings at 
law, to deprive the surety from seeking his re- 
lief in chancery, controlling the proceedings at 
law. Viele v. Iloag, 24 Vt. 46. 

5. Tenants in common. In matters of ac- 
count iM^tween tenants in common, courts of 
chancery have an original jurisdiction, not de- 
pending on the need of discrovery; and, since 
the statutes giving a jurisdiction to courts of 
law. the jurisdiction by bill is concurrent with 
the jurisdiction by action of account. Ijeach v. 
BenttieH, 33 Vt. 105. 

6. It is a proper exercise of equity jurisdic- 
tion to apportion among parties having a com- 
mon use of a water-power, and a common duty 
to keep up the dam by which the power is crea- 
ted, the burden of maintaining it. Sanborn v. 
Braley, 47 Vt. 170. 

7. Trustees. All accounting Iwtween trus- 
tees and their c^nVuh is a proper head of original 
equity jurisdiction, and comes within ordinary 
chancery jurisdiction, except where jurisdiction 
of certain particular species of trust is given by 
statute to the probate court ; and in such cases, 
if, by reason of the limited power of the probate 
court or its peculiar mode of proceeding, it can- 
not give relief, resort may be had to a court of 
equity. French v. Winsor, 86 Vt. 412. 

8. Legacy. Courts of equity have always 
been regartled as the appropriate tribunals to 
enforce pajTnent of legacies, on the ground 



that the executor was a mere trustee for the 
legatee ; and this has been extended to almost 
every variety of case where the validity of a 
legacy or devise, or its effect, was brought in 
question. Holmes v. Holmes, 36 Vt. 538. 

9. Forfeiture. Whenever a forfeiture is 
taken advantage of which works a hardship, and 
full compensation can be made, equity gener- 
ally relieves against the forfeiture upon making 
such compensation. 8o done in this case. Ha- 
gar v. Buck, 44 Vt. 285. 

10. It is altogether outside the province and 
fimctions of a court of equity to set up ai;d en- 
force a forf«nture. Vt. (Utpper Mining Co. v. 
Onmby, 47 Vt. 709. 

11. In all ciises of bills for relief against for- 
feitures, the question is upon the restoration of 
the old contract ; not, whether the court will 
substitute a new one for it— as by substituting 
the periodical payment of a specified sum of 
money in lieu of services and support covenant- 
ed to Ih' suppruid. The legitimate power of a 
court thus to interfere with men's contracts 
may well l^e doubted. JhinkUe v. Ailams, 20 
Vt. 415. 

12. Contracts of the weak-minded. Chan- 
cery will not sta aside a conveyance which is 
[KTfectly fair, and where no undu(! advantage 
lias been taken, provided the grantor had sufti- 
cient understiinding to know the nature and 
consequences of his act at the time. Day v. 
i^eely, 17 Vt. 542. 

13 . That tl le i n tcl lect ual capaci t y « >f a party 
is l)elow that of the average of mankind does 
not alone furnish sufficient ground for setting 
aside his contract. Mnnn v. Betterly , 21 Vt. 
326. 

14. Inadequacy of consideration. Mere 
inade(iuacy of consideration furnishes no suffi- 
cient ground for the interference of a court of 
equity to s(*t aside a deed, or contract ; but in- 
adequacy of consideration, coupled with such a 
degree of weakness and inil>ecility of intellect 
as would justify the inference that such weak- 
ness had been tjiken advantage of, would afford 
sufficient ground for such interference, lb. 

15. An exchange of lands was set aside in 
equity in iK'half of the heirs of a very weak- 
minded man, though not non compos, where 
there was gre^it inequality of consideration, of 
capacity in the contracting parties, and of know- 
ledge of the properties. JJolden v. Crawfoni, 
1 Aik. 390. 

16. It is not uncommon for a court of chan- 
cery to refuse to lend its aid to enforce a con- 
tract by reason of inadequacy in the considera- 
tion; but it is well settled that mere inadeipiacy, 
independent of and unconnected with other cir- 
cumstances, is not sufficient per se to rescind a 
contract, unless its grossness amount to fraud ; 
but where such inatlequacy is connected with 
other circumstances of suspicion, this may fur- 



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nish satififactory ground for relief. Howard v. 
JSdgeU, 17 Vt. 9. 

17. To restrain proceedings at law. It 
Is a general principle of equity jurisprudence, 
that a court of chancery will not entertain a bill 
to impeach a judgment at law for mere irregu- 
larity in the proceedings, but will leave such 
questions, arising in legal proceedings, to tlie 
exclusive jurisdiction of courts of law. It will 
not, upon the testimony of witnesses, try the 
truth of the return of a sworn officer made in a 
proceeding at law, and grant relief upon falsify- 
ing the record. Wardahoro v. WMUngham, 45 
Vt. 450. 

18. Equity will not postpone an earlier to a 
later attachment, because of a formal and tech- 
nical defect in the first proceedings— as, because 
the first writ was made returnable to a wrong 
term; or because the judgment in that case, was 
entered and an execution issued agamst all the 
members of a firm, upon a confession of judg- 
ment by one of them ; but will leave the parties 
to courts of laws for the assertion of mere tech- 
nical rights, Shedd v. Bank of BraUUboro, 32 
Vt. 709. 

19. Where a purchaser of land had knowl- 
edge of an incumbrance upon it, and the mat- 
ter was mutually settled between him and the 
vendor, and the vendor gave a deed containing 
a covenant against incumbrances, but with the 
understanding that no claim should be made 
on such covenant, and the grantee afterwards 
brought an action at law on such covenant ;— 
Hdd^ that this was a fraudulent use of tie cov- 
anant, and that equity would enjoin him from 
such use of it. Suit enjoined. Tayhyr v. Gil- 
man, 25 Vt. 411. 

20. The plaintiff in a suit at law was res- 
trained by injunction from the prosecution of 
that or any other suit for the same matter, al- 
though the defendant therein had a good de- 
fense at law to the suit brought, but where, if 
he succeeded, he would still be subject to other 
vexatious suits. Morne v. Morne, 44 Vt. 84. 

21. M brought a suit at law against the town 
of G, upon a town order payable to him, or 
bearer, which he had obtained by fraud. On 
a bill in equity by the town to enjoin the suit 
at law, and that the order be delivered up to l)e 
cancelled \—HM, that in the exercise of a sound 
discretion, the special circumstances of the case 
warranted the granting of the relief sought; 
—these were, that the evidence left the fact of 
fraud in no doubt ; that the negotiable charac- 
ter of the instrument, although overdue, might 
lead to embarrassment of the town, as would, 
also, a payment of it by the town treasurer, in 
case the bill was dismissed ; also, that the ques- 
tion of jurisdiction was not raised by demurrer, 
but by the answer, and only brought to the atten- 
tion of the court on final hearing after all the 
testimony had been taken and all this expense 



incurred. Olaatenlni/ry v. McDonald, 44 Vt. 
450. 

22. Instance of restraining a partition of 
lands at law according to the legal import of 
the deeds, and ordering partition in chancer^', 
so as to protect the orator's equitable rights. 
Biper v. Farr, 47 Vt. 721. 

23. Where the relief sought is exclusively 
of an equitable character, such relief is not con- 
cluded by a judgment at law ; since one may 
have a claim against an estate which could not 
be resisted at law, but upon which, neverthe- 
less, he is not in equity entitled to a dividend. . 
Went V. Bank of BuUand, 19 Vt. 403. 

24. The equitable assignee of a chose in ac- 
tion, with notice to the debtor, brought his ac- 
tion at law thereon in the name of the assignor, 
when the defendant procured a release from 
the assignor, and set it up in defense and ob- 
tained judgment, — the course of decisions at 
that time being that, at law, that was a defense, 
and that the plaintiff's claim was only of equity 
jurisdiction. Afterwards the plaintiff brought 
his bill in equity to enjoin that judgment, and 
to enforce his original claim. Held, that the 
judgment at law was not conclusive as a de- 
fense, although, according to the course of later 
decisions, the orator's equitable right would be 
protected at law,— the matter being of original 
equity jurisdiction, and the rule at law being 
different then, and now. Dana v. Nelson, 1 
Aik. 252. 8.C.,2 Aik. 381. 

25. A qlttained judgment against B, under 
a rule *'that certain sums of money specified 
in receipts signed by A should be deducted 
from said damages." B neglected or refused 
to produce the receipts to the clerk, and A took 
his execution for the full judgment, but collect- 
ed only a part. About seven years afterwards, 
and after such receipts were lost, A brought a 
new suit on said judgment, refusing to apply 
the amount of such receipts, and obtained a 
second judgment for the apparent balance. On 
bill brought by B, an application of the amount 
of said receipts was decreed, and an injunction 
against enforcing the judgment to that amount ; 
but no costs were allowed to either party, 
/vyrwfe V. Wright, 1 Aik. 383. 

26. If a judgment be rendered in pursuance 
of an agreement of the parties which directs a 
particular mode of satisfying it, equity regards 
this as the act of the parties, and not of the 
court, and will not permit it to be enforced in 
any way inconsistent with the agreement. 
Naaon v. Smalley, 8 Vt. 118. 

27. Arbitrators awarded that the orator 
should pay the defendant a certain sum, in ad- 
dition to what he had already paid, and that 
the defendant should, at the same time, execute 
to the orator a deed of certain lands. The de- 
fendant duly tendered the deed which the or- 
ator refused to accept. The defendant after- 



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wards, in an action on the award, recovered of 
tlie orator judgment for the sum so awarded to 
be piid, and costs. Afterwards the defendant 
sold and conveyed the lands to a third person 
for their value ; and afterwards, on his claim- 
ing to enforce the judgment, the orator brought 
his bill for relief. The court, by decree, en- 
joined the defendant from enforcing the judg- 
ment, and ordered him to repay the sum paid 
by the orator towards the land before the arbi- 
tration, with the orator's costs after deducting 
the defendant's costs in the suit at law. Pres- 
ton V. WhUoamb, 17 Vt. 188. 

28. Chancery will not relieve against a judg- 
ment at law, for matters which constituted a 
defense to the action at law, where the orator 
was fully apprised of the facts necessary to his 
defense, or could have ascertained them. Briggs 
V. 8h€m, 15 Vt. 78. 

29. Resort to chancery must be seasonably 
made, when the ground and occasion for it are 
seasonably known, or relief will be refused. 
Thus, where a suit at law was suffered to go to 
final judgment, where the facts showing the 
necessity of a resort to chancery were season- 
ably known, the judgment at law was held a 
bar to equitable relief. 8t, Johnshury v. Bagley, 
48 Vt. 75. 

2. Limitation by legal remedy, 

30. It is not optional with a party whether 
he will proceed at law or in chancery. He can- 
not resort to chancery where his remedy at law 
is adequate. Currier v. liosebrooks, 48 Vt. 
84. 

31. An injunction against the erecting and 
use of a church upon lands claimed by the or- 
ator was refused, where his title was not clear 
and certain, and where he had ag adequate 
remedy at law, and the defendants were respon- 
sible, &c. White v. Booth, 7 Vt. 181. 

32. A mere breach of contract is never re- 
strained in advance, nor redressed subsequently, 
in a court of equity, where the remedy at law 
is adequate to the injury. Smith v. Pettingill, 
15 Vt. 82. Washtmm v. Titm, 9 Vt. 211. 

33. Chancery will never interfere to prevent 
by injunction a mere ordinary trespass, where 
the injury is in no sense irreparable, and where 
an adequate remedy may be found in the re- 
covery of damages at law. Injunctions against 
trespasses to timber, - ore, monuments, orna- 
mental trees, coals and quarries, have been 
granted, being cases where the recovery of 
damages merely would be an inadequate rem- 
edy. . Smitti V. PettingiU. 

34. Bill brought to enjoin the prosecution 
of an action of ejectment : — Bill dismissed for 
the reason that the orator had a clear defense 
at law to the action. Barrett v. Sargeant, 18 
Vt. 865. 



35. Where a statute made the ofl^cers of a 
corporation personally liable, in an action found- 
ed on the statute, for certain debts; — Held, 
that the remedy being complete at law upon 
the statute, the liability could not be enforced 
in cliancery. Bassett v. 8t. Albaris Hotel Co., 
47 Vt. 313. 

36. A cross-bill was dismissed with costs of 
defense to it, although the original bill was dis- 
missed with costs, where the matter of the 
cross-bill was equally available as a defense to 
the original bill, and where, as to the further 
relief sought by the cross-bill, there was an ade- 
quate remedv at law. Sprague v. Waldo, 88 
Vt. 189. 

37. The bill set forth a good cause of action 
at law for a past diversion of water from the 
orator's mill ; also that the parties were in con- 
troversy about their respective rights to the 
water, and asked to have these rights ascer- 
tained and established. Held, on demurrer, 
that these facts did not furnish sufl^cient ground 
for equitable interference. The bill also prayed 
for an injunction to restrain the defendant's use 
of the water except in a certain way, and al- 
leged that the defendant claimed some of the 
water belonging to the orator and was using it 
according to such claim, and threatened to in- 
crease the use ; but did not allege that such use 
as then made, or increased as threatened, could 
not be fully compensated for in damages at 
law ; nor that any application had been made 
to the defendant to desist ; nor that repeated 
and vexatious suits at law would be or were be- 
lieved to be necessary. In order to maintain the 
rights infringed upon. Held, that the court of 
chancery had no jurisdiction of the case, as 
made by the bill. Fairhaven Marble Co. v. 
Adams, 46 Vt. 496 ; and see Prentiss v. Ijamard, 
11 Vt. ia5. Smith V. PettingiU, 15 Vt. 82. 

38. Where a party is unjustly deprived of 
his day in court before a justice by fraud, acci- 
dent or mistake, the remedy at law under G. S. 
c. 38 is ample, and there is no necessity nor 
warrant for resorting to chancery. Sleeper v. 
Croker, 48 Vt. 9. 

39. The statute authorizing the probate 
court to license an executor, &c., to sell real 
estate fraudulently conveyed by the testator, 
&c. (G. S. c. 52, 8. 43 and seq. ), does not pro- 
vide a remedy exclusive of chancery. Theras- 
son V. Hickok, 37 Vt. 454. 

40. The orator's claims, although several, 
l)eing in the nature of claims upon a particular 
fund upon which others had an equal claim, 
and to which another class of claimants might 
have a paramount right, and where an account- 
ing might be involved, the case was held a 
proper one for chancery jurisdiction ;— the 
remedy at law not appearing to be clear, com- 
plete and adequate. Bichardson v. Vt. dt Mass. 
B. Co., 44 Vt. 613. 



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3. Auxiliary juri^etian, 

41. In aid of creditor to reach equitable 
estate. Wliere a legal claim is established by 
judgment, and courts of law, from defect in 
their process or powers, are unable to afford 
adequate relief, the court of chancery may 
assist the creditor to reach property of the debt- 
or which cannot be taken on an execution. 
Bigelauf v. Congregatumal So(^y^ 11 Vt. 288. 
8. C, 15 Vt. 870. 

42. Equity will aid a judgment creditor to 
reach the equitable interest of his debtor in 
lands, where payment of the debt cannot be 
obtained at law. Woods v. Scott, 14 Vt. 518. 

43. It will not ordinarily do this unless the 
creditor has perfected his claim, so far as he 
can at law, by judgment and levy upon the es- 
tate. i?jVv V. Barnard, 20 Vt. 479. 

44. IHctum. A judgment creditor must 
levy his execution upon a specific portion of the 
land, where it exceeds in value the amount of 
the execution, before he can resort to chancery 
for aid on the ground that the conveyance 
of his debtor was, as to him, void. Ba^sett v. 
8t. Albans Hotel Co., 47 Vt. 313. 

45. B gave G a bond for the conveyance of 
certain land upon Imng paid a certain price 
therefor. This purchase was really for the 
benefit of S, but this was unknown to B. S 
went into possession and made valuable im- 
provements, when the orator attached the land 
and set off on execution against S, his interest 
therein being more than $400. B had actual 
knowledge of the attachment. Afterwards G 
and 8 sold the premises to D, surrendering to B 
his bond, and B gave D a new bond for a convey- 
ance, and, as the result of the arrangement and 
after deducting from the sale price to D the 
amount of S's indebtedness to himself, B gave 
G his note for #400. Held, that B, with such 
knowledge of the attachment, could not convey 
to any one else than €K so as to defeat the ora- 
tor's claim against S and G; and the court 
decreed that B should pay the $400 to the orator. 
Woods V. ScoU, 14 Vt. 518. 

46. In aid of probate court. Tlie princi- 
pal jurisdiction of the settlement of the accounts 
of administrators, executors and of trustees ap- 
pointed by the probate court, is in the probate 
court ; and, in such cases, the jurisdiction of the 
court of chancery is only in aid of the probate 
court. Merriam v. Hemmenway, 26 Vt. 565. 

47. The executrix of a will, who was also 
named as trustee and had been formally ap- 
pointed trustee by the probate court, died 
Held, that it belonged to her administrator to 
settle her account as trustee, and that the trust 
fund could not, in chancery, be called out of the 
bands of her administrator by the administrator 
he bonis non of the testator, before the settle- 
ment in the probate court ;— and that the juris- 



diction belonged in the first instance to the pro- 
bate court. lb, 

48. The interference of a court of chancery 
in the settlement of estates in Vermont has been 
confined within the narrowest limits, and has 
gone upon the ground merely of aiding the ju- 
risdiction of the probate court in those points 
only wherein its functions and powers are in- 
adequate to the purposes of perfect justice ; — 
retaining its ancillary jurisdiction to the same 
extent over matters in the probate courts, which 
it has over those in the conunon law courts. 
Adams v. Adams, 22 Vt. 50. Boyden v. Ward, 
38 Vt. 628. 

49. It is no ground of equity jurisdiction 
for the settling of estates, that there has been 
unreasonable delay of proceedings in the pro- 
bate court ; nor that an administrator on ren- 
dering his account refused to produce the books 
and papers of his intestate ; nor that some of 
the parties affected by the decree of the probate 
court were infants and had no proper guardians 
appointed. Adams v. Adams. 

50. Where a creditor had become barred of 
his claim against an estate by neglect to present 
it for allowance by the commissioners ; — Held, 
that chancery would not give him a decree 
against the estate, on the assumed ground of 
the continued liability of the surety and the ul- 
timate liability of the estate. McOollum v. 
Hinckley, 9 Vt. 143. 

51. Where the creditors of an estate have 
an interest adverse to that claimed by the ad- 
ministrator, they may come into a court of 
chancery for redress while the estate is in pro- 
cess of settlement in the probate court. This 
proceeding is merely ancillary to that in the 
probate court, and after the rights of the parties 
are determined the case is remitted to the pro- 
bate court for final adjustment and distribution. 
Morse v. Slastm, 13 Vt. 296. 

4. Retaining jttrisdicti&n once attached. 

52. Where a party is obliged to resort to 
chancery for one purpose, his case will be re- 
tained until the whole matter is finally disposed 
of. Dana'y. Nelson, 1 Aik. 252. Beardsley v. 
Knight, 10 Vt. 185. 20 Vt. 278;— though it may 
be necessary to bring in new parties. 10 Vt. 185. 

53. The general rule is, that when a bill is 
brought seeking both discovery and relief, and 
material discovery is elicited, the court will 
proceed to grant the proper relief, even if the 
relief were such as a court of law might grant. 
Holmes V. Holmes, 36 Vt. 525. 

As to other subjects of equity jurisdiction, 
see particular titles : as Clofd on Title ; Con- 
dition ; Fraud ; Husband and Wife ; Injunc- 
tion ; Interpleader ; Mistake ; Mortgage ; 
Partnership; Specific Performance; Trusts, 
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IT. Suit, Wjikrb to be Bkought ; Servkje, 
Etc. 

54. In what county. Bill in chancery, 
brought in Chittenden county to compel the 
conveyance of land situate in that county, was 
dismissed on plea that neither of the parties re- 
sided in that county. (G. S. c. 29, s. 17.) Bir- 
chard v. CheeTier, 40 Vt. 94. 

55. A supplemental bill, bill of revivor, bill 
of review, or bill to carry into effect a former 
decree must be brought in the same county 
where the original suit was brought and the 
proceedings are of record. Ferris v. Child, 1 
D. Chip. 836. Cheever v. Rut. dk Bur. R. Co., 
39 Vt. 653. 

56. Where a suit in chancery has been com- 
menced in one county, and has proceeded to an 
interlocutory or administrative decree deter- 
mining the rights and duties of the parties in 
respect to the property in question, to be exer- 
cised under the order and direction of that 
court, the assertion of those rights should be 
addressed to the court decreeing them and 
under whose order and direction they are to be 
exercised; and a bill to enforce such rights, 
brought to the court of chancery for another 
county, will not lie. Clveeter v. Rut. & Bur. R. 
Co. 

57. Service. The delivery to a defendant, 
without the State, of a copy of a bill in chan- 
cery and subpoena by an indifferent person not 
specially deputed, and where there was no order 
of court directing the mode of notice, was held 
insufficient, and that the defendant was not af- 
fected by it. Bank of BurUtigton v. CatUn, 11 
Vt. 106. 

58. Filing bill. G. S. c. 29, s. 56, enact 
ing that '*the issuing of a subpoena attached 
to a bill shall be deemed the filing of a bill," 
does not exclude other modes of filing existing 
independently of the statute, but rather pro- 
vides a substitute for actually filing it in court. 
A bill may be so filed without issuing a sub- 
poena—as, for the purposes of procimng an in- 
junction, or where the defendant is out of the 
State so that a subpoena cannot be served upon 
him. The statute does not make the bill and 
subpoena (m^iw<?(jtfM. Howe v. Wt^rrf,40Vt.654. 

III. Pleadings. 

1. The mi. 



59. Form and substance. A bill may 
well be drawn with a double aspect, so that if 
the orator fail of establishing one ground of re- 
covery, he may rely upon another, although 
wholly or in part inconsistent with the former. 
McConneU v. McConnell, 11 Vt. 290. 

60. The orator must stand or fall upon his 
case as made by his bill ; nor can the answer 



aid him to recover upon a case not made by the 
bill ; nor can a special prayer for the specific 
relief to which he might be entitled upon the 
facts of the answer, be granted, where the stat- 
ing part of the bill is not adapted to it. Thomas 
V. Wwmer, 15 Vt. 110. 

61. The orator must stand on the allegations 
in his bill, and cannot make a different case by 
his evidence, and base upon it a claim for relief. 
Barrett v. Sargeant, 18 Vt. 866. 

62. Prayer. A general prayer for relief is 
sufficient to obtain all relief consistent with the 
general frame of the bill, Danforth v. Smitfi, 
23 Vt. 247 ,— all the relief which is adapted to 
the case, though variant from that sought by 
the special prayer. Eureka Manrhle Co. v. 
Windsor Mfg. Co., 47 Vt. 430. 

63. Interrogatories. A bill was held ill 
on demurrer, because it contained no interroga- 
tories. Shed V. OarfUld, 5 Vt. 39. 

64. Orator's interest. A creditor of the 
estate of a deceased person cannot sustain a bill 
in chancery against a debtor of such estate, to 
secure payment to himself. There is no privi- 
ty between them. 'Hie administrator is the 
only person^who can pursue the debtors of an 
estate. Isaacs v. Cla/rk, 13 Vt. 657. 

65. A party in chancery taking lands upon 
a writ of sequestration stands as an attaching 
creditor at law, and, before decree and levy, 
has no such interest in the land as authorizes 
him to litigate by his bill the title against a 
levying creditor ; and his remedy after levy is 
at law. French v. Winscyr, 36 Vt. 412. 

66. Parties— Assignment. A nominal 
party to a contract, who has assigned all his 
interest, is required to be joined in any proceed- 
ing in equity in regard to the contract only for 
the purpose of having the decree conclude his 
rights, and thus conclude all future litigation. 
So that, in all cases where the court can see, in 
the particular case, that there is no necessity 
for such joinder on that account, it will not 1x5 
required — especially after the case has gone to 
a hearing. He may be a proper, but not a 
necessary party. Day v. Cummings, 19 Vt. 
496 ; and see Payne v. HatJuiway, 3 Vt. 212. 

67. Where the assignment of a contract 
passes only the equitable interest therein, the 
assignor is properly joined as a party in a bill 
to enforce it. Eureka Marble Co. v. Windsor 
Mfg. Co., 47 Vt. 430. 

68. In a bill by a general creditor in an as- 
signment against the assignee for an account, 
the preferred creditors need not be made parties 
where the orator claims only the balance after 
paying them. Bage v. Okott, 28 Vt. 465. 

69. Where a bill was brought against the 
assignee under an assignment in trust for the 
benefit of certain attaching creditors of the as- 
signor, of whom the orator was one, but he not 
assenting to the assignment, and against the 



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administrators of the assignor, praying to have 
the assignment declared void, and that the 
property assigned be brought into administra- 
tion for the pajrment of the orator's debt; — 
Held, that the other creditors provided for in 
the assignment were not necessary parties. 
Thenumn v. Uiohok, 37 Vt. 454. 

70. Contribution. On a bill for contribu- 
tion and to settle the affairs of a "union store," 
certain associates, who left the State before the 
business of the * 'division" was closed and were 
beyond the reach of process, were properly left 
out of the account for contribution. Henry v. 
Jackson, 37 Vt. 431. 

71. Parties nnmerons. A bill will not be 
dismissed because all the parties in interest are 
not made defendants, where their number is so 
great as to make it impracticable to bring them 
all in, or where this would be attended with 
great inconvenience and expense. But it must 
appear in all such cases, that a full and com- 
plete decree can be made as between the parties 
before the court, and without substantial injury 
to third persons. Stimson v. Lewis, 86 Vt. 91. 

72. Joint sureties. Where some of the 
joint sureties pay the debt jointly, they may 
join in a bill against the other sureties for con- 
tribution ; and there is no objection to a decree 
against the defendants severally for so much as 
each is liable for. Fletcher v, Jackson, 28 Vt. 581. 

73. Questions of mis-joinder and non- 
joinder. On a petition by husband and wife 
to foreclose two mortgages upon the same land, 
one to the husband and the other to the wife, 
an objection for mis-joinder was disallowed on 
the hearing, it not having been noticed in the 
pleadings. BarUeU v. Boyd, 34 Vt. 256. 

74. There are many cases where defendants 
have not a co-extensive common interest or re- 
lation, and yet are properly joined. as defend- 
ants ;— and so Jield in this case. Eureka Marble 
Co, V. Windsor Mfg, Co., 47 Vt. 430. 

75. Where the defendant had wrongfully 
filled in a common private passage way, in 
which the orator had a right of passage as well 
as the defendant, and also one A ',—HeJd, that a 
decree might be made that the defendant re- 
move or grade down the fiUing-in, without 
making A a party to the bill.— That was but 
to make him undo what, to the orator's preju- 
dice, he had improperly done. Walker v. Pierce, 
38 Vt. 94. 

76. On general demurrer a bill is sufficient 
in regard to parties, if the facts stated disclose 
one ground on which the orator is entitled to 
relief without additional parties. SJiaw v 
ChamberUn, 45 Vt. 512. 

77. Wl^er. As a general rule, if the want 
of parties to a bill is not insisted upon in the 
answer, it cannot be at the hearing. Page v. 
OkoU, 28 Vt. 465. \ 

78. If UO objection be taken to a bill for 



want of proper parties until the final hearing, 
the objection will not be regarded if a decree 
can be made without them ; if not, the case 
will only stand over to bring in the necessary 
parties. Cannon v. Norton, 14 Vt. 178. 18 
Vt. 420. Day v. Cummings, 19 Vt. 496. Page 
V. Olcott. Rowan v. Union Arms Co. , 86 Vt. 1 24. 

79. Where certain heirs, apparently inter* 
ested in the subject matter of the orator's claim, 
were not made parlies to the bill, but gave their 
depositions in which they disclaimed all inter- 
est ; — Held, that such disclaimer would bar any 
future claim on their part, and therefore super- 
seded the necessity of their being made parties. 
McConnell v. McConnell, 11 Vt. 290. 19 Vt. 499. 

80. If there be a mis-joinder of a defend- 
ant, and this is apparent in the bill, and the ob- 
jection is not made by demurrer, nor in the 
answer, it should be considered as waived, and 
as coming too late when raised at the hearing. 
Wing V. Cooper, 37 Vt. 169. 

81. Where a decree can be made which will 
do entire justice to all parties, notwithstanding 
the non-joinder or mis- joinder of a party, and 
the objection, though known before, is not in- 
sisted upon by plea, demurrer or answer, it 
cannot be raised upon the hearing. Smith v. 
Bartholomew, 42 Vt. 856. 

82. Parties misplaced. A court of chan- 
cery will not ordinarily dismiss a suit on ac- 
count of any mere informality in the position 
of the parties, as orators or defendants, if all 
the parties interested are before the court. West 
V. Bank of Rutland, 19 Vt. 403. 

83. All the parties being before the court 
and heard, the court rendered a decree settling 
their rights, though one of the defendants 
should have been orator, and the orator a de- 
fendant. Isham V. Uighee, 2 Vt. 354. Nason 
V. SmaUey, 8 Vt. 118. 

84. Amendment. Where a bill was brought 
in behalf of a corporation, as claimed, and it 
turned out on hearing that the complainant had 
no legal existence as a corporation ; — Held, that 
it was within the power of the court of chan- 
cery, in its discretion, to allow an amendment 
by bringing in, as complainants, the stockhold- 
ers in the company, to prosecute the same right 
in their own names. Wliether the evidence 
filed before such amendment could be read on 
the hearing, after the amendment, would de- 
pend upon the circumstances of the case, and 
the issues involved. Vt. Mining Co. v. Wind- 
ham Co. Bank, 44 Vt. 489. 

85. Instance of amendment by bringing in 
new parties, after hearing on appeal. Barrett 
V. Sargeant, 18 Vt. 865. 

2. Demurrer. 

86. Demurring to a bill for want of equity 
is submitting to the jurisdiction pf the cQurt, 



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An objection to jurisdiction over the defend- 
ants should be presented by plea. Bank of B. 
FalU V. Rvt, & Bur. R. Co., 28 Vt. 470. 

87. A demurrer to a bill upon its merits ad- 
mits the facts regulariy pleaded, and an order 
overruling the demurrer is made upon the sup- 
position of the truth of the matters stated ; and 
it is well enough that the record should state 
them as being taken as true, and so the orator 
is entitled to relief. Hall v. Dana, 2 Aik. 381. 

88. Unless the demurrer is to that part of 
the bill which claims a discovery, objection 
cannot be taken, under it, to interrogatories 
whose answer might subject the defendant to a 
penalty. Payne v. Ilatfiaway, 3 Vt. 212. 

89. The question of a presumptive bar from 
lapse of time cannot be raised by demurrer to 
a bill. Ih. 

90. A demurrer to the whole bill will be 
overruled, if it is ill as to part. Shed v. Gar- 
field, 5 Vt. 39. 

3. Plea; Answer ; Crossbill. 

91. Form and substance of answer. 

Where a defendant makes his defense by way 
of answer, he must set up in it all the various 
grounds of defense upon which he intends to 
rely ; otherwise, they are not in the case. War- 
ren V. Warren, 30 Vt. 530. 

92. A defendant may answer in part, and 
refuse to answer further by stating sufficient 
ground why he should not lie compelled to an 
swer further. Hunt v. Gookin, 6 Vt. 462. 

93. In order to excuse the defendant from 
either admitting or denying in his answer the 
truth of any material allegation of the bill, it 
is necessary that he deny all knowledge and in- 
formation upon the point. If he has any in- 
formation upon a material matter alleged, aside 
from the bill itself, he is bound to state his be- 
lief of the truth or falsity of the allegation ; 
otherwise, the answer is subject to exception. 
Devereaux v. Cooper, 11 Vt. 103. 

94. Exceptions to answer. Any defects 
in an answer must be supplied by taking ex- 
ceptions and obtaining a further answer. If 
the defendant omits to answer, or answers 
evasively, this is not to be taken as an implied 
admission against his interest, or of the facts 
alleged in the bill, but he should be pushed to 
a distinct and explicit declaration as to how the 
facts are, the same as any other witness. BUus- 
deU V. Stevens, 16 Vt. 179. Bigehw v. Toplt'f, 
25 Vt. 273, 288. 

95. Hearing on bill and answer. Where 
a cause is heard upon bill and answer, the an- 
swer must be taken to be true, and the orator 
can take a decree only according to the allega- 
tions and qualifications of the answer. DooliUle 
v. Gookin, 10 Vt. 265. 

96. An answer not traversed, though not 



responsive to the bill, must be taken as true ; 
and .where the facts so stated constitute a full 
defense, the bill must be dismissed. Slason v. 
WHijht, 14 Vt. 208. 

97. Where a case stands upon bill and an- 
swer not traversed, the allegations of the de- 
fendant made by way of belief come within the 
general rule that the answer is to be taken as 
true. Gates v. Adams, 24 Vt. 70. 

98. Answer as evidence. But where the 
answer to a bill is upon information and belief 
only, and the defendant is not supposed to have, 
and does not profess to have, personal knowl- 
edge of the facts stated in the bill, such answer, 
being traversed, is not evidence of the truth of 
its denials which requires to be overcome by 
something more than the testimony of one wit- 
ness. IxxmiM V. Fay, 24 Vt. 240. Woolty v. 
Chamberlain, lb. 270. 

99. The general rule is, that the answer of 
one defendant is not evidence for, or against, 
his co-defendant. Blodgett v. Hobart, 18 Vt. 
414. Cannon v. Norton, 14 Vt. 178. 

100. When responsive. An answer re- 
sponsive to the allegations of a bill, or petition, 
is evidence for the defendant ; and his right to 
have the answer taken as evidence is co-exten- 
sive with his obligation to answer. BUiisdell v. 
Bmters, 40 Vt. 126. Rich v. Austin, 40 Vt. 
416. Gnifton Bank v. Doe, 19 Vt. 463 ; and 
see Ad/ims v. Adams, 22 Vt. 50. 

101. What is responsive will be determined 
by the bill, and not by the interrogatories. 
These can neither limit nor extend the defen- 
dant's obligation to answer. Redfield, J., in 
McDonald v. McDonald, 16 Vt. 630. 

102. The answer is to he considered as a 
plea, and so far as any fact is admitted it is 
evidence against the defendant ; but when any 
new fact is alleged by way of avoidance of the 
matter charged in the bill and admitted in the 
answer, and the answer is traversed, it stands 
like any other plea, and must be proved. Red- 
field, J. lb. 

103. If the answer assert matter affirma- 
tively in opposition to the right claimed by the 
orator, though it be responsive to the bill, 
qumre, whether, upon a traverse, the answer 
shall be received as proof, or as mere pleading. 
Bennett, J., in Allen v. Matter, 17 Vt. 67. But 
see Grafton Bank v. Doe, 19 Vt. 463. BUUs- 
dell V. Bowers, 40 Vt. 126. Rich v. AusUn, 
lb. 416. 

104. Where the answer is not responsive to 
the bill, or sets up affirmative allegations in op- 
position to or in avoidance of the orator's de- 
mand, and is replied to, the answer is of no 
avail, as evidence, in respect to such allegations, 
and the defendant is as much bound to estab- 
lish the allegations so made by independent 
testimony, as the plaintiff is to sustain his bill. 
Wells V. Houston, 37 Vt. 245. MoU v. Har- 



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ringUm, 12 Vt. 199. Cannon v. Norton, 14 
Vt. 178. Lane v. MarshaU, 15 Vt. 85. Pier- 
mm V. ClayeSy lb. 98. McDonald v. McDonald, 
16 Vt. 680. Allen v. Mower, 17 Vt. 61. San- 
bam V. KiUredge, 20 Vt. 682. 

106. Where a bill was brought to procure a 
seitlemcnt of a partnership account, and the 
answer, admitting the partnership, averred a 
settlement of the partnership accounts ; — Held, 
that such averment was by way of defense and 
in the nature of a plea, and was not responsive, 
and so was not evidence, but must be proved 
by evidence aliunde, Spaulding v. Holmes, 
25 Vt, 491. 

106. The answer to a bill of foreclosure, 
even that of the original mortgagor, is never 
regarded as evidence to impeach the considera 
lion of the mortgage security, where the answer 
is traversed. Woolejf v. Chamberlain, 24 Vt. 
270. 

107. Where the plaintiflfs claim as set forth 
in the bill rests upon a written contract, and 
the right of action is not barred by lapse of 
time, the admission of the contract in the an- 
swer and the allegation of payment, or of any 
other matter merely in discharge, are to be 
treated as distinct, and the answer is not evi- 
dence of the latter, but it must be proved other- 
wise ; but, if the plaintiff *8 claim rests wholly 
in otbX proof, and the answer of the defen- 
dant is invoked to make out the plaintiff's case, 
the defendant may admit such contract and al- 
lege that it was in its inception inoperative, or 
that it has been paid, or released, and the whole 
answer upon both points is to be regarded as 
evidence ; nor need the matter of avoidance. In 
order to be evidence, be contained in the same 
sentence with the admission ; — but the chancel- 
lor is not bound equally to believe all parts of 
such answer. Adams v. Adams, 22 Vt. 50. 

108. Where a bill alleged that the release of 
a bond conditioned for the support of the orator 
was obtained by the defendant for a grossly 
inadequate consideration, and the answer de 
Died the inadequacy, and set forth the previous 
arrangement which led to the execution of the 
bond, the maintenance of the orator from that 
time to the cancelling of the bond, and the 
amount paid for the release, the court was in 
clined to think that the answer was responsive 
and was evidence. Mann v. Betterly, 21 Vt 
326. 

109. And in considering the question of the 
sufficiency of the consideration for the discharge 
of the bond ; — Held, that it was proper to take 
into consideration the amount of property con 
veyed to the defendant on the occasion of giv 
ing the bond, and the amount expended by the 
defendant in the support of the orator. lb. 

110. Whatever in an answer is fairly a re 
ply to the general scope of the ^claim set up in 
the bill, whether in the stating or charging part, 



and whether by way of denial, excuse or avoid- 
ance, is evidence for the defendant. Wilson, 
J. in Rich v. Austin, 40 Vt. 420. 

111. Where the bill or petition lor foreclosure 
of a mortgage charged that the mortgage note 
''is justly due and owing and has not been 
paid," and the answer set forth sundry pay- 
ments and the circumstances under which such 
payments were made, and an understanding for 
their application upon the mortgage; — Held, 
that the answer was responsive 'and was evi- 
dence for the defendant. Blaisdell v. Bowers, 
40 Vt. 126. Grafton Bank v. Doe, 19 Vt. 
463. 

112. Oross-bill. A cross-bill must be based 
upon an equity growing out of the claim set up 
in the original bill, and, in our practice, is con^ 
sidered a dependency merely upon the principal 
bill. It is usually brought, either to obtain a 
necessary discovery of facts in aid of the de- 
fense of the original bill, or to obtain full relief 
to aU parties touching the matters of the origin- 
al bilL Rutland v. Paige, 24 Vt. 181. Slastm 
V. Wright, 14 Vt. 208. 

113. Active relief was refused to a defen- 
dant in a foreclosure suit, for want of a cross- 
bill, although, in his defense, he established a 
priority and superior right. Simonds v. Brown, 
18 Vt. 281. 

IV. Pbockedings Aftbb Issue. 

(See Rules of Chancery PracUce, 11 Vt. 689.) 

1. The testimony. 

114. Matters in the record. A letter, not 
before proved, was admitted to be proved and 
read in evidence at the hearing,— such having 
been the former practice. Dana v. Nelson, 1 
Aik. 252. 

115. A docunwnt— as a decree in chancery 
— which is stated in the bill and admitted in the 
answer, is to be considered as proved and in 
evidence so far as it is stated and admitted, al- 
though not filed as an exhibit. Lyman v. Litr 
He, 15 Vt. 576. 

116. A court of chancery having referred 
certain issues to a coiu-t of law for trial by jury, 
the jiu-y found certain of the issues and failed 
to agree as to others. Held, that the case stood 
before the court on final hearing upon the whole 
record, and that not only what appeared upon 
the record in the court of chancery, but the in- 
formation collected before the jury and the tes- 
timony there given, as shown by the judge's 
report, were to be regarded. Adams v. SouUy 
38 Vt. 538. 

117. Mode of taking testimony. The 
true construction of the 16th Rule in Chancery 
is, that each party, before he commences taking 
testimony on Ms side, shall furnish to the other 



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the names of his witnesses, &c. Chase v. 7>Kr, 
46 Vt. 642. 

118. The practice of having questions shown 
to a witness i^ a chancery cause, and his an- 
swers prepared beforehand, and reduced to writ- 
ing, and examined by counsel before coming 
before the master to testify, is not allowable, 
and receives the censure of the court. Ilickok 
V. Farm, <3& Mech. Dank, 35 Vt. 476 ; and see 
McDant>U v. Bamum, 5 Vt. 896-8. 

119. Criticism and condemnation of the 
sometime practices of the bar in taking testi- 
mony in chancery — the needless diffusenefts 
and prolixity, and sometimes impertinence and 
scandal. Costs refused in such case. Vermont 
Copper^ ttc, Co. v. Barnard, 40 Vt. 65. 

120. Testimony of surviving party- G- 
8. c. 86, s. 24, excluding the surviving party as 
a witness in his own behalf, does not apply to 
the answer of a defendant in chancery to a bill 
or petition, so far as it is responsive. BlamieU 
V. Boicers, 40 Vt. 126. 

121. — of a single witness against the 
answer. The testimony of one witness, against 
the direct and positive averment of the answer, 
is not sufficient ground for a decree. But the 
testimony of the one witness may be so corrob- 
orated by circumstances as to l>e sufficient, and 
the answer itself may contain such circumstan- 
ces. Pierson v. Catlin, 3 Vt. 273. 

122. Motion to suppress. Motions to 
suppress testimony for any defect which is 
curable should be made at the earliest oppor- 
tunity, in order to enable the party relying up 
on the testimony to obviate the objection by 
obtaining an order to re-examine the witness. 
Where the testimony had been on file more 
than one term, the court refused a motion to 
suppress for an informality in taking it. Marcy 
V. RoM, 12 Vt. 484. 

123. A deposition in chancery ought not to 
be suppressed for a failure to comply with the 
rules in a mere matter of form, unless such fail 
ure proceed from bad faith, rather than from 
accident and mistake. Partridge v. Stocker, 3( 
Vt. 108. 

124. Where a motion has been made to sup 
press testimony, and the adverse party has 
given notice to bring it on before the hearing 
in chief, it should be so brought on, or should 
not be entertained on the hearing in chief. 
Ih, 

125. A motion to suppress testimony must 
be disposed of in chancery ; otherwise, the 
question cannot be raised in the supreme court 
on appeal. Van Namee v. Qroot, 40 Vt. 74. 

126. —to inspect papers. A motion in 
chancerj'' for the ins|>ection of certain letters. 
Ac, in the possession of the adverse party, 
which had been proved as exhibits, was denied, 
as not authorized. Clark v. Field, 10 Vt. 321. 
16 Vt. 112. 



2. Report of Master. 

127. Form. In taking accounts in chancery, 
the master, and not the court, is to settle the 
facts, and his finding is conclusive, unless the 
report for good cause be set aside. Merriam v. 
Barton, 14 Vt. 501. 

128. Exceptions to a master's report, which 
are addressed to the discretion of a chancellor, . 
cannot be revised in the supreme court; — as 
where the accounts before a master were not 
verified by the oath of the party, as required 
by Rule 41, and the report was not recommit- 
ted, lb. 

129. A master appointed to take an account 
is not obliged to make a special report, unless 
by direction of the court. Nor should he re- 
port evidence, but the facts found. Mott v. 
Harrington, 16 Vt. 185. 

130. A master in chancery before whom an 
accounting is had must report all the testimony 
given, as well as state the accounts at length, 
and all the facts found. Ilerriek v. Belknap, 
27 Vt. 673. (Changed by G. S. c. 29, s. 11 ;— 
not his duty to report the testimony, unless 
specially required so to do by the chancellor.) 

131. On a reference to a master upon an ac- 
counting ordered, the statements of the answer 
as to number, quantity and value, were field to 
be evidence merely, but not conclusive against 
the defendant, and yet of the strongest charac- 
ter. Morse v. Slason, 16 Vt. 819. 

132. Effect. The court of chancery, or the 
supreme court, will not overrule or disregard 
the findings of a master to whom it has been re- 
ferred to take the accounts upon a mortgage, 
unless for evident mistake on his part, or evi- 
dent corruption. McDanieU v. Harh&ur, 48 
Vt. 460. See ThraU v. Chittenden, 31 Vt. 186. 

133. Unless the result at which the master 
arrives in taking an account is clearly shown to 
be wrong, the court will not disturb such result. 
Barren, J., in Vt. <fe Can. R, Co. v. Vt. Cen- 
tral R. Co., 34 Vt. 65. 

134. Where an account has been taken and 
returned by a master, exceptions should be filed 
to the report as to any items objected to. It is 
not the duty of the chancellor to examine items 
not so excepted to, nor will such items be ex- 
amined on appeal. Smaller v. CorU*s, 87 Vt. 486. 

136. Although the report of the master is 
not final as to the facts, yet it is firmly settled 
in this State that it will be regarded as settling 
the facts which fall within his province to find, 
and which he reports as found, unless it appears 
affirmatively that he has found facts without 
evidence, or against evidence. Rowan v. State 
Bank, 45 Vt. 160, 191, 195. 

3. The decree. 

136, Must b^ of a tenUf The chapcellor 



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can make necessary orders in vacation for fur- 
thering the cause, but cannot render a final de- 
cree in the cause. According to the recent 
practice, the court of chancery does not ad- 
journ, but unless when in session at the regular 
term, the court is not in practice regarded as 
opken except for the purposes of such acts as a 
chancellor may legally do in vacation,— al- 
though, by consent of parties, a hearing may be 
had and final decree rendered, entitled as of 
the term. Sturges v. Knapp, 38 Vt. 540. (G. 
8. c. 29, s. 14.) 

137. For want of appearance. Under 
the 4th and 25th Chancery Rules (1 D. Chip. 
498), the orator was allowed to take a decree 
for want of an appearance entered by the de- 
fendant on the first day of the term, although 
an appearance was entered on the 4th day, and 
immediately on notice being proved. Miller v. 
Moore, 1 Aik. 216. 

138. A decree dismissing a bill for want of 
an appearance, or prosecution, is like a non 
suit at law, and is not a bar to a subsequent 
bill for the same matter. PorUr v. Vaughn, 
26 Vt. 624. 

139. Mnst he upon the fkcts stated in 
the hill and in issue. Facts occurring after 
a cause is at issue in chancery cannot be con 
sidered in deciding the case, unless brought 
into the issue by subsequent proceedings,— as, 
by the orator's withdrawing his traverse, on 
leave, and amending his bill, or by filing a sup- 
plemental bill ; or by the defendant's filing a 
cross-bill, &c., so that testimony may be taken 
on both sides, if desired. Blaisdell v. titetens, 
16 Vt. 179. 

140. A decree cannot be made upon mat- 
ters happening since the bringing of the bill, 
unless brought into the case by some proper 
supplemental proceeding. Daumer v. Wt'lson, 
83 Vt. 1. 

141. Where a material fact — as notice — was 
not alleged in the bill, but was denied in the an 
swer which was traversed, and testiniony was 
taken, on which the supreme court on appeal 
found the fact proved, yet it was held that the 
fact was not properly in issue : but the court, 
pro forma, reversed the decree of the chancel- 
lor, and remanded the cause for amendment, 
and further proceedings. Porter v. Bank of 
Rutland, 19 Vt. 410. 

142. If the orator claim an account on cer- 
tain obligations set forth in his bill, which are 
denied in the answer, but other and different 
obligations are admitted in the answer suffi- 
cient to entitle the orator to an account upon 
the basis of the answer, and the orator desires 
to have an account taken even upon the basis 
of the answer, in the event of failing to compel 
the account which he claims in his bill, he 
should obtain leave to file a supplemental bill, 
ailing in the alternative the facts admitted in 



the answer. But if, instead, the answer be 
traversed, and on trial he fails to support the 
facts relied upon in his bill, he cannot fall back 
and claim an account on the basis of the an- 
swer. McOrmnby v. IjOw, 24 Vt. 436. 

143. Exceptional cases. In an inter- 
pleader suit, the defendants compromised and 
reduced their settlement to writing after an- 
swers, and filed the writing in the cause with a 
statement of facts agreed. The court treated 
this, though irregular, as tantamount to an 
amended answer and as evidence of the facts 
stated, and rendered a decree thereon. HwUm 
V. Baptist Church, dc, 34 Vt. 309. 

144. Where the orator sets up in his bill a 
claim of right against the defendant, not de- 
pending entirely upon contract, the bill will 
not be dismissed for a variance, when he proves 
a right of the same nature, though of less ex- 
tent, and yet broad enough to render unjusti- 
fiable the defendant's acts complained of ; and 
he may have a decree establishing and defining 
his true right, in answer to a prayer therefor. 
Weston V. Cushing, 45 Vt. 681. 

V. Prooeeoings after Decree. 

1. Appeal. 

145. The term. An appeal from chancery, 
actually taken at a term subsequent to the ren- 
dering of the final decree, but entered as of the 
former term, was held irregular, and was dis- 
missed. Oow V. Dyke, 14 Vt. 561. 

146. Mode. A party appealing from a de- 
cree in chancery is not obliged by G. S. c. 29, s. 
85, to make a formal assignment of errors. 
Bishop V. Bay, 13 Vt. 116. 19 Vt. 174. 

147. Entry. An appeal from chancery can- 
not be entered in the supreme court upon af- 
fidavits that the appeal was duly taken, but the 
clerk had neglected to make the proper entries. 
Gove V. Dyke, 13 Vt. 308. 

148. Form of decree. The supreme court 
refused to hear an appeal from chancery, be- 
cause no decree had been drawn up in form and 
signed by the chancellor. Brov^ v. Mead, 16 
Vt. 148. 

149. Pro forma decree. The practice of 
allowing appeals in chancery upon merely for- 
mal decrees, mthovt hearing, disapproved by 
liedfield, C. J., Stafford y. Ballou, 17 Vt. 329. 
Hyndman v. Hyndman, 19 Vt. 9. 24 Vt. 
240. 

150. A pro forma decree entered by agree- 
ment, and made for the sole purpose of being 
appealed from in order that the case may be 
brought to a speedy hearing, is not such a de- 
parture from the regular proceedings in a cause, 
as to affect the rights or liabilities of any person 
connected with the suit, either as principals or 
sureties. It does not, in such case, stay the 



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recovering of in junction damages. SturgU v. 
Knapp, 38 Vt. 486. 

161. Final order or decree. Where the 
defendant made an appearance, but neglected 
to make answer to the bill agreeably to the 
rules of court, and the bill was taken as con- 
fessed for want of an answer, and the cause 
was then referred to a master to take an ac- 
count, and a decree was made upon the accept- 
ance of the master's report; — Held^ that no 
appeal lay from the decree. Hart v. Strong, 
15 Vt. 877. (G. S. c. 29, s. 83.) 

152. From the order of the chancellor 
amending a recorded decree, upon petition, by 
changing it from a dismissal of the bill *'upon 
the merits" to a simple dismissal, an appeal 
was allowed and sustained. Porter v. VmigJuin, 
22 Vt. 269. 

153. An injunction bill was taken as con- 
fessed for want of an answer and a decree en- 
tered up. The chancellor, on application of 
the defendant, ordered that the decree be va- 
cated and he have leave to answer. The orator 
appealed. Heldy (1), that the chancellor had 
power to make such order; (2), that the appli- 
cation was to the discretion of the chancellor 
and not revisable in the supreme court; (3), 
that not being a final decree, no appeal lay. 
Hall V. Lamb, 28 Vt. 86. 

154. Upon hearing on bill, demurrer there- 
to, and plea, the chancellor overruled the de- 
murrer and plea and rendered a decree for the 
orator according to the prayer of the bUl. The 
defendant, without asking leave to withdraw 
his demurrer and to answer, appealed. Held, 
that he had thereby elected to treat the decree 
as not interlocutory, but final, and that he could 
not claim that the decree was erroneous because 
made final ;— but the cause, after affirmance, 
was remanded, with leave to apply to the chan- 
cellor to withdraw the demurrer, and to an- 
swer the bill on its merits. Shaw v. Chamber- 
lin, 46 Vt. 612. 

2. Hearing on appeal, 

155. Practice. On an appeal, the appel- 
ant must furnish the copies ; but such copies 
as are required by the rules of the court of 
chancery to be furnished in that court belong to 
the case, and should come up with it. Hilton 
V. Fullerton, 19 Vt. 488. 

156. Where a bill is demurred to, and the 
cause is appealed, the case will proceed in the 
supreme court as if it were in the court of 
chancery to be heard for the first time, which 
ever party appeals. In such case, the party 
demurring will open the argument. Bishop v, 
Day, 13 Vt. 116. 

157. On an appeal, the parties must be con- 
fined to the evidence used before the chancel- 
lor. Tarbel v. White Biver Bank, 24 Vt. 666. 



158. Chancery appeals must be heard in the 
supreme court upon the same evidence pre- 
cisely as was before the chancellor. The cer- 
tificate of an oath attached, after the appeal, to 
a paper used before the chancellor, is not regu- 
larly in the case in tlie supreme court. Elli- 
son V. Wilson, 36 Vt. 60. 

159. Chancery appeals are invariably heard 
entire. The supreme court will not hear a 
motion, made in the court of chancery, argued 
as a preliminary question. Morrill v. Kit- 
tredge, 19 Vt. 628,— as, a motion to suppress 
testimony. Smith v. Onion, 19 Vt. 482. 

160. In appeals from chancery, it is the 
practice to hear read all the testimony which 
was read in the court of chancery, although 
excepted to, and then to hear the parties on all 
questions arising on the merits, and on all for- 
mal exceptions properly taken in the court of 
chancery, which appear on the papers. And 
exceptions minuted by the master will be re- 
garded as following the case to final hearing, 
unless expressly or impliedly waived below. 
AiTimcorth v. Prentiss, 24 Vt. 646. 

161. On appeals to the supreme court, the 
whole decree is appealed from, and all the 
pleadings and testimony in the case are sent 
up, — not, however, for the purpose of bringing 
it up as an original case, but to enable the su- 
preme court to see if the chancellor committed 
any error in making the decree. (G. S. c. 29, 
s. 86.) It seems a necessary rule in such case, 
that an objection which a party, by his silence 
in the court below, may be deemed to have 
waived, and which, when waived, would leave 
the cause to rest with the merits of the decree, 
shall not be taken in the appellate court ; and 
that no point or question, which, had it been 
raised in the court below, might have been ob- 
viated by amendment, or proof, can be raised 
in the court above. But the rule does not apply 
to objections which neither amendment nor 
proof could have obviated. Dunshee v. Par- 
melee, 19 Vt. 172. MoU V. Harrington, 16 Vt. 
194. Slason v. Cannon, 19 Vt. 219. 

162. Waiver of certain defects. In a 
foreclosure case the facts, as reported by a 
master, made a different case from that stated 
in thQ petition, which had been taken as con- 
fessed. Both parties proceeded to hearing up- 
on the case made by the report, without objec- 
tion, and without any motion to amend the 
petition. Held, that all objections for variance 
were thereby waived, and that the case on 
appeal stood upon the report. Walker v. King, 
44 Vt. 601. 

163. In a bill of foreclosure the mortg;ige 
was described and was admitted in the answer, 
and, on the hearing before the chancellor, was 
treated as in the case, though not produced. 
Held, that the defendant could not, on appeal, 
object to the absence of the mortgage as a 



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ground for reversing the decree. DunsJiee v. 
Parmelee, 19 Vt. 173. 

164. The decision of the court of chancery 
in regard to matters depending upon the rules 
of tiiat court, or in regard to the time or form 
of taking any particular proceeding, will be 
held final on appeal ; and objections of that 
character, if not taken in that court, will be 
considered as waived. MorriU v. Kittredge^ 
19 Vt. 528. 

165. Where the defendant answers the bill 
fully in the aspect in which it was intended to 
be brought, and testimony is taken on both 
sides with reference to the issues made upon 
the answer in that aspect, and a final decree 
has been made in the court of chancery with- 
out question raised as to the sufficiency of the 
bill, that question cannot be raised in the su- 
preme coiut. HilU V. LootfWiy 42 Vt. 562. 

166. Matters of discretion in practice. 
There are many incidental questions, as of 
practice, resting in the discretion of the chan- 
cellor, which are not ordinarily revisable on 
appeal — as, a refusal to recommit a master's re- 
port, on the ground of surprise, or newly dis- 
covered evidence ; overruling formal exceptions 
as to the mode of taking testimony. Ixycejoy v. 
ChftrehiU^ 29 Vt. 151 ; overruling a motion to 
suppress testimony for a formal defect. Part- 
ridge V. Stocker, 86 Vt. 108. 

167. Sending issue to jury. On an ap- 
peal from chancery, the supreme court will 
not send an issue of fact to the county court to 
be tried by a jury. Such an order is matter 
resting in the discretion of the chancellor, and 
has not been practised in this State. Briggs v. 
Shaw, 15 Vt. 78. lb., 7m. 

Note. — In Adams v. Soule, the supreme court 
remanded a cause with direction to the chan- 
cellor to frame issues to be tried by a jury in 
the county court— which was done. 88 Vt. 638. 

168. AfEbmative decree for defendant. 
The orator's bill was dismissed in the court of 
chancery. He appealed, and that decree was 
reversed, and a decree ordered for the defend- 
ant giving the defendant affirmative relief, and 
costs in both courts. Davis v. Smithy 43 Vt. 269. 

3. Mandate. 

169. How fBix the cliancellor is bound 
thereby. After the decision by the supreme 
court of a chancery appeal and the remanding 
of the cause, one defendant, at a subsequent 
t«rm, asked to have the mandate so modified as 
to allow the filing of a cross-bill against another 
defendant, as to whom the bill was ordered dis- 
missed. The court refused ; but Redfield, C. J. 
entertained no doubt tliat the chancellor had 
authority to allow such motion, without its be- 
ing a contempt of the mandate. Ba/rker v. 
Belknap, 27 Vt. 700. 



Note. — Such motion was afterwards allowed 
by Poland, Ch., and was approved on appeal. 
See 35 Vt. 451. 

170. Where a chancery cause is remanded, 
it is the duty of the chancellor to conform his 
decree to the judgment of the supreme court, 
so far as they have adjudged ; but if no direc- 
tion has been given as to an incident of the de- 
cree, like the costs, it is his duty to determine 
it. OaU V. Butler, 35 Vt. 449. 

171. The power and duty of a chancellor in 
a cause remanded are more than merely minis- 
terial, to register the mandate of the supreme 
court. It is within his power to allow further 
proceedings to be had, if in his judgment jus- 
tice requires ; or to lax and apportion costs not 
determined by the mandate. lb. Barker v. 
Vt. Central B. Co., 35 Vt. 451. 

172. When it reaches the court of 
chancery. On an appeal from chancery, the 
mandate of the supreme court directed that 
interest be cast upon a certain injunction bond 
"from the time the case should reach the court 
of chancerj'." Held, that by this was intended 
the first day of the regular term of the court of 
chancery following the reception of the man- 
date by the clerk. Sturgett v. Kna/pp, 38 Vt. 
540. (Distinction taken between the cJuincellor 
and the court of cliancery. ) 

VI. Revisoby Proceedings. 

173. Bill of review. A bill of review 
may be brought of right ; but it can only be for 
errors of law apparent on the decree, or for 
some new matters of fact discovered since the 
decree, as a release, &c., — and herein it differs 
from a petition for a rehearing. Barnum v. 
McDanieU, 6 Vt. 177. 

174. To entitle a party to a review of a 
decree on the ground of newly discovered evi- 
dence, he must show not only tliat it would be 
material and would probably change the result, 
substantially, but also that it was not and could 
not have been discovered by the use of reason- 
able diligence before the former trial. Brainard 
V. Morse, 47 Vt. 320. 

175. After the hearing and decision of an 
appeal, the supreme court has no power to sus- 
tain or allow a bill of review, but that must be 
exercised by the court of chancery. Slason v. 
Cannon, 19 Vt. 219. 

176. The discovery of new matter after de- 
cree, or after publication passed, is not a ground 
for a petition for rehearing, but relief must be 
sought by bill of review, in the first case, or by 
supplemental bill in the nature of a bill of re- 
view, in the other. Mead v. Arms, 3 Vt. 148. 

177. Petition for rehearing. An applica- 
tion for a rehearing in chancer}^ must be made, 
and notice served on the adverse party, within 
twenty days from the rising of the court which 



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CHANCERY, VI.— CITY OF BURLINGTON. 



rendered the decree— according to Rule 17 of 
Supreme Court rules. (1 Aik. 404.) French 
V. Chittenden, 10 Vt. 127. See Rule 24 in 
Chancery, 11 Vt. 696. 

178. In this State, on a petition for a re- 
hearing in chancery, the whole cause is consid- 
ered open to both parties. Sparha/wk v. Buelly 
9 Vt. 41. See Ch. Rule 24. 

179. No rehearing is allowed of a question 
raised by a cross-bill and answer filed after 
hearing upon the original cause, which was 
raised and controverted in the original bill, and 
which was thus adjudicated, and fell within 
the decree made. Barker v. Belknap, 39 Vt. 
168. 

180. —for correcting record of decree. 
The court of chancery may, upon petition, in- 
quire into the accuracy of a decree recorded, 
and hear proofs, and amend it according to the 
truth. Porter v. Vaughan, 22 Vt. 269. 

181. —for modiiying decree. A petition 
to modify a decree and for further directions, 
though not embracing all the parties to the de- 
cree, nor filed in the original cause, but recit- 
ing the proceedings in the original cause, was 
Jield to be so identified with it, as to be treated 
as a petition in that cause. Bewail v. Brainerd, 
88 Vt. 364. 

182. On a petition to modify a decree, or 
for further directions under it, if all are made 
parties whose interests may be affected by 
granting the prayer of the petition, it is suflic- 
ient in this respect, though not embracing all 
the parties to the decree. lb. 



OHIPMAN (NATHANIEL.) 

Dissertations. 1. On statute adopting the 
common law of England. N. Chip. 117. 
2. On statute of conveyances. lb. 141. 
8. On statute of offsete. lb. 167. 
4. Negotiability of notes. lb, 181. 
Forms. lb- 231 and teq. 



CITY OF BURLmaTON. 

1. Ordinances. Under the charter of the 
city of Burlington giving the city council power 
to make **any by-laws or ordinances which 
they may deem necessary for the well being of 
the city, not repugnant to the constitution or 
laws of the State," they may pass a valid ordi- 
nance against the unnecessary occupation, ob- 
struction or encumbering of sidewalks so as to 
interfere with the convenient use of the same 
by passengers. 8ta^ v. Bacon, 40 Vt. 456. 

2. A complaint for a violation of an ordi- 
nance of the city of Burlington should be en- 



titled in the name of the State, and should con- 
clude, like other criminal prosecutions, contrary 
to the statute, &c., and against the peace and 
dignity of the State. lb, State v. Soragan, 40 
Vt.450. 

3. In a prosecution for the violation of an 
ordinance of the city of Burlington by neglect- 
ing to comply with an order of the health of- 
ficer, the complaint alleged that the respondent 
** did disobey a lawful order of the health officer 
of said city after the same had been duly served 
upon Mm, which order was substanUally as 
follows," reciting it. On demurrer. Held, (1), 
tliat this general allegation of disobedience was 
too loose— that the particular act or neglect 
constituting a violation of the order should be 
stated ; (2), that the service of the order is as- 
sumed, and not averred, as it should be ; and 
for each of these causes the complaint was ill ; 
(3), that the complaint was not ill by use of the 
word ** substantially"; but that the pleader 
would be held to as strict proof, as if the order 
had been set forth in the usual form, according 
to its legal effect. State v. Soragan, 

4. Warnings and meetings. The charter 
of the city of Burlington provides that all warn- 
ings for city meetings *'^all be issued by the 
mayor and published in the manner designated 
in the by-laws of the city." Held, that a stand- 
ing by-law providing for a newspaper publica- 
tion of such warnings and the times and extent 
of such publication, was not controlled by G. 
S. c. 15, s. 12, as to the posting of warnings of 
town meetings, and the time of posting. AUen 
V. Burlington, 46 Vt. 202. 

5. The only business article in the warning 
of a city meeting was : "To vote whether the 
city will authorize the city council to pledge 
the credit of the city to an amount not exceed- 
ing $150,000, payable in not less than 20 years, 
with interest at six per cent per annum, to pro- 
vide a supply of water for the use of the city." 
The meeting having passed the vote affirma- 
tively in the language above, then voted to 
authorize the city council to assess annually 
upon the grand list a tax of ten per cent, to be 
invested as a sinking fund for the extinguish- 
ment of such bonded debt. Held, that by the 
passage of the first vote the business named in 
the warning had been finished and the author- 
ity, under the warning, was exhausted; and 
that the second vote was void. lb, 

6. In city meeting a vote was passed author- 
izing the city council of Burlington to assess 
ann^iaUy, upon the grand list of the city, a tax 
of ten per cent, to be invested as a sinking 
fund, and to be applied in extinguishment of a 
certain city bonded debt. Held, that such tax, 
assessed upon any other than the list of that 
year, was illegal. H>, 

7. Under the warning of a meeting of the 
voters of the city of Burlington, **To vote upon 



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CITY OF BURLINGTON.— CLOUD ON TITLE. 



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the question of raising nioney, by tax or other- 
wise, to meet tlie accruing expenses of the city 
government, and for school purposes^ for the 
ensuing year" ; — ffeld^ that the meeting could 
not legally vote a tax, or authorize the mayor 
to Ijorrow money on the credit of the city, for 
the purpose of erecting a high-school building. 
lb. 

8. Assessments. A municipal corporation 
may be authorized by the legislature to make 
local or special taxes or assessments, for the 
builduigof sewers, sidewalks, drains, aqueducts, 
&€., and to apportion the expense in the ratio 
of the benefits received. The power of taxation 
implies apportionment. Tlie lev5ring of such 
assessments is not taking private property for 
public use under the right eminent domain, 
but is the exercise of the right of taxation in- 
herent in the State, ^on dubitatur that a local 
assessment may so transcend the limit of equal- 
ity and reason that its exaction would cease to 
be a tea?, or contribution to a common burden, 
and become extortion and confiscation. In that 
case, it would be the duty of the court to pro- 
tect the citizens from robbery under color of a 
better name. AUen v. Drew, 44 Vt. 174. 

9, Under an act authorizing the city council 
of Burlington to establish rates of annual rents, 
Ac, for the supply of water by means of the 
city water works, or for the benefits resulting 
therefrom, to be called water rents, and to be 
apportioned to the different classes of buildings, 
&c., in reference to their dimensions and uses 
for dwellings, hotels, factories, «&c., and to 
vacant lots, as near as may be practicable, the 
rents were established and apportioned by 
an ordinance, **for buildings of one story, 
twelve cents per front foot ; for buildings of 
two stories, sixteen cents per front foot ; for 
vacant lots, eight cents per front foot." Ileld, 
that such apportionment in the ratio of front- 
age, as applied to the several kinds of property 
specified, was not so manifestly unequal and 
unjust, or without an equivalent, as that the 
court could declare it illegal. lb. 

10. Where an act for the assessment of 
water rents in the city of Burlington, and an 
act for an amendment of the city charter were 
both pending as bills in the legislature at the 
same time, and the first provided that such as- 
sessments should be collected as provided "by 
the amended charter of said city," and this last 
act was not approved until seven days after the 
first ; — Heldy that the refen»nce in the first act 
was to the bill then pending as an amendment 
of the charter, and that the act was valid. lb. 

11. A city assessment on adjoining property 
for the building of a sewer without notice to 
the owners, under Act of 1868, No. 88, s. 2, is 
void ; and the commissioners may proceed and 
lay another assessment, as if none had ever 
been laid. No notice of the laying of a sewer 



is required. Woodhouse v. City of Burlington, 
47 Vt. 300. 

12. City court. The city court of Bur- 
lington has no power, under the statute creat- 
ing it, to grant a jury trial in criminal cases ; 
nor to grant an appeal, except upon entering 
into such a recogrnzance as the statute pro- 
vides ; nor would an exception lie to the judg- 
ment in such case, though the appeal should be 
improperly denied. State v. Cloran, 47 Vt. 
281. 



CLOUD ON TITLE. 

1. Where there is a cloud upon the title 
of one in possession of lands, by reason of an 
outstanding claim of title, a bill in equity lies 
to remove such claim and relieve the title from 
the cloud. Eldridge v. Smith, 84 Vt. 484. 
Hodges v. Origgs, 21 Vt. 280. 

2. Where the purchaser of a farm, upon 
which there was an attachment in favor of a 
creditor of a former owner, gave his note for 
part of the purchase money, but not to be paid 
until the land should be freed from the attach- 
ment, and the attaching creditor obtained judg- 
ment and levied his execution upon the land at- 
tached, but for some years thereafter had 
omitted to bring suit against the purchaser, who 
had remained in undisturbed possession ; — 
Held, that the holder of the note could sustain 
a bill against the maker and the attaching cred- 
itor to compel an adjustment of their respective 
rights to the land, by a suit between tliem. 
Hodges v. Origgs. 

3. Relief, under a bill quia timet to remove 
a cloud from the orator's title to land, is not a 
matter of right, but of judicial discretion with 
the chancellor, to be exercised only in excep- 
tional cases, where the remedy at law is inade- 
quate, and delay dangerous, or to prevent fraud 
and injustice. Wing v. Hall, 44 Vt. 118. 
Jiooney v. S<mle, 45 Vt. 303. 

4. Where a title asserted is all of record so 
that it can l)e determined at law, and there is 
no special equity in the case, a bill to remove a 
cloud from the orator's title will not be enter- 
tained. Rooney v. Sonle. 

5. The orator was in possession of a portion 
of a certain lot, claiming the whole under a 
void tax deed. The defendants were in pos- 
session of the other part of the lot under a 
license from the orator's grantor, and while so 
in possession procured a deed of the whole lot 
from one M, who claimed to own it by an in- 
dependent title. This bill was to compel the 
defendants to convey to the orator all the right 
and title they acquired by the deed from M, 
and to remove the cloud from the orator's title. 
Held, that the case, under its circumstances, 



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COMMISSIONS— COMPOSITION. 



was not a proper one for 8uch relief, but that 
the title should be tried at law. Bill dismissed 
without prejudice to the orator's rights in any 
proceedings at law. Wing v. //aW, 44 Vt. 
118. 



COMMISSIONS. 

1. There is no such usage in regard to brok- 
erage in this country, as that the court can de- 
clare it, as a rule of law, that no compensation 
is due a broker for negotiating a loan upon an 
agreed commission, where the principal recedes 
from the negotiation before its completion. 
IMirkee v. Vt. Central R. Co., 29 Vt. 127. 

2. Commissions partly earned before one's 
death were allowed to l)e collected by his ad- 
ministrator, deducting the expense of complete 
ing the transactions. Newell v. Humphrey, 37 
Vt. 265. 

See Factor. 



COMMIXTURE.-ACORETION. 

1. Properly in articles distinguishable, as 
cattle, is not lost by commixture. Hotbrook v. 
Hyde, 1 Vt. 286. 

2. Although the owner of goods intentional- 
ly intermixes them with those of another so 
that they cannot be distinguished, but does not 
do it fraudulently but by some mistake of the 
facts, the property is not lost. Pratt \. Bryant, 
20 Vt. 333. 

3. Accretion. Ordinary repairs upon a 
personal chattel, such as making new bolts, nuts, 
thills, and the like, to a wagon, become accre- 
tions to and merge in the principal thing, and 
become the property of the general owner. But 
in a case where new wheels, and an axle added, 
constituted the nmning part of the wagon, and 
they could be followed, identified, severed 
without detriment to the wagon, and appropri- 
ated to other use without loss ;—Held^ that the 
mechanic making such repairs could maintain 
a property in them, as against the general 
owner. Clark v. Wdh, 45 Vt. 4. 

4. The ownership of property carries with 
it the ownership of its natural increase— as the 
future offspring of .animals. Bvckmaster y. 
/Smith, 22 Vt. 203. 



COMMON LAW. 

1. It was urged in favor of an indictment, 
bad at coumion law, that this form of an indict- 
ment had been in use in this State for more 



than thirty years, that is, almost from the com- 
mencement of the government ; that there had 
been no decision against it ; and that it ought 
now to be considered as the common law of 
Vermont by usage. The indictment was held 
insufficient; and by Chtpman, C. J.,— '*That 
laws affecting essential rights should, by cus- 
tom, originate in our courts, independent of the 
constitution and laws enacted by statute and in 
opposition to the principles and maxims of the 
common law, is a thing I cannot understand. 
It is a doctrine which ought not to be counte- 
nanced by this court." State v. Parker, 1 D. 
Chip. 298. 

2. The law merchant, as part of the com- 
mon law, is adopted by our statute, and our 
courts are bound to recognize it. Nash v. Har- 
rington, 2 Aik. 9. 

3. The adoption of the common law of 
England by the legislature of this State was an 
adoption of the whole body of the law of that 
country (aside from their parliamentary legis- 
lation), and included those principles of law 
administered by the courts of chancery, and 
admiralty, and the ecclesiastical courts (so far 
as the same were applicable to our local situa- 
tion and circumstances, and not repugnant to 
our constitution and laws), as well as that por- 
tion of their laws administered by the ordinary 
and common tribunals. Le Barron v. Le Bar- 
ron, 35 Vt. 365. 



COMPOSITION. 

1 . A contract in writing between a debtor and 
certain of his creditors, made upon sufficient 
consideration, agreeing to extend time of pay- 
ment, and which does not profess to include all 
the creditors, will operate as a temporary bar to 
suits by such creditors as become parties by 
signing it. Ijoomin v. Waimcright, 21 Vt. 520. 

2. If a debtor in embarrassed circumstances 
fraudulently conveys his property to others, 
and, by falsely representing his situation to his 
creditors, induces them to accept a composition 
and discharge their debts, such discharge will 
be set aside in equity as fraudulent, and the 
payment of the debts decreed. Richards v. 
Hunt, 6 Vt. 251. 8 Vt. 89. 29 Vt. 415. 

3. Where, in a general composition agree- 
ment, there is a secret arrangement between 
the debtor and one of his creditors, by which 
such creditor, as a condition of his signing, 
secures an advantage over the others, this is 
such a fraud as to release the others from their 
agreement to discharge the debtor. Cobleigh v. 
Pierce, 32 Vt. 788. 

4. Where a composition agreement between 
a debtor and his creditors contains a provision 
for the discharge of the debtor, provided all his 



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creditors shall sign the agreement, and that the 
debtor shall make the stipulated payment, or 
give certain security within a time named, the 
creditor signing is not bound thereby, if either 
of the conditions is not complied with. lb, 
Jkntehy V. Goodrich, 20 Vt. 127. 

5. But such a condition may be waived, and 
is waived if the creditor, after non-compliance 
with the condition and with knowledge thereof, 
or without fraud on the part of the debtor, ac- 
cepts the offered terms and releases his debt. 
Jb. 

6. The. defendants made a general assign- 
ment for the benefit of their creditors, the plain- 
tiff being one. Afterwards they undertook a 
compromise by paying 25 cents on the dollar, 
a:nd drew up a paper to be signed by their cred- 
itors, certifying that for value received of S, 
they agreed with S that, on payment to them 
respectively on or before February 1, 1868, of 
a sum equal to 25 per cent of their respective 
claims against the defendants, they would sell 
and convey to S all their respective claims 
against the defendants. The plaintiff signed 
the paper February 15, 1863, adding to his sig- 
nature **paid February 15, #222.87," this being 
the full amount of his claim, and so delivered 
the paper. In a day or two afterwards, one of 
the defendants, with money furnished by S, 
offered to pay the plaintiff the 25 per cent, 
which he declined to take, on the ground that 
the time of payment by the terms of the paper 
had expired. 8, in making tlie compromise, 
acted as agent for the defendants, and for their 
exclusive benefit. Hekiy that the instrument 
operated as a release of the original debt, and 
not as an assignment to S;— and held, that 
the Figning of the instrument was an adoption 
of it in every particular, except as to tlic time 
when the 25 per cent should be paid ; that this 
became payable on demand, and that the plain- 
tiff could recover the 26 per cent only. Bowen 
V. UoUi/, 38 Vt. 574. 

7. A compromise agreement l>etween a 
debtor and his creditors, fully executed, dis- 
charging him from his debts by payment of a 
percentage, is valid ; and such release need not 
be under seal. Paddleford v. Thacher, 48 Vt. 
574. 



CONDITION. 

What is a condition precedent, and what not 
— Contract, II. 

1. EffSect of non-performance. Where a 
note was executed and put into the hands of a 
third person, but not to be delivered to the 
payee until certain conditions were performed ; 
—Ileldf that no recovery could l>e had upon it un- 



til such conditions were performed, nor could it 
be urged that such conditions had become im- 
material. Jarvis v. Rogers, 3 Vt. 386. 

2, The condition upon which a note was 
executed was, that a certain suit should be 
brought in the name of the payee for the benefit 
of the maker. The suit was brought, but the 
payee discontinued it. Held, that the condition 
was not duly performed. lb, 

3. Tender of performance. After one 
has tendered performance of a condition pre- 
cedent, as the payment of money, and it has 
been refused, it is not necessary to his remedy 
that he bring the money into court. Washburn 
V. Dev^ey, 17 Vt. 92. 

3. Performance prevented. It will al- 
ways excuse the performance of a condition 
precedent, that the performance was hindered 
by the other party. Camp v. Barker, 21 Vt. 
469. 

4. A contracted with B to draw for him a 
quantity of saw-logs, B to furnish a certain 
yoke of four-year-old steers handy for the pur- 
pose. B offered a pair of old oxen in place of 
the steers, and not so good for the work. Held, 
that A was not bound to accept the oxen, and 
was not liable for not doing the work. Bvgbee 
V. Haynes, 43 Vt. 476. 

5. Waiver ot performance. The accept- 
ance of performance of a condition precedent 
after the day set in the contract, and unex- 
plained, may furnish prt'ma fade evidence that 
the parties intended to revive the contract in 
its original terras; but this is not conclusive, 
and a different intent may be proved. Porter 
V. SUuart, 1 Vt. 44. 28 Vt. 267. 

6. A mere mental determination to rest; 
** satisfied" with the non-performance of a con- 
dition precedent, not notified to the party who 
was to perform it, cannot be treated as a waiver 
and as equivalent to performance. Mamrelly. 
Brt'ggs, 17 Vt. 176. 

7. The plaintiff made a verbal contract with 
the defendants," to do all the wood work for the 
building of a house for a specified price ; and 
it was further stipulated that the contract 
should l)e reduced to writing, although not re- 
quired by law to be in writing ; and the plaintiff 
informed the defendant that unh^ this was 
done he should not do the work by the job. 
The contract never was written out, but the 
plaintiff went on and completed a large part of 
the work in accordance with the verbal contract, 
as if, and in the expectation that it would be 
reduced to writing, the plaintiff sub-letting 
part of the work. Held, that his conduct oper- 
ated as a waiver of his right to have the con- 
tract reduced to writing, and that he could not 
now repudiate the verbal contract, and charge 
his work by the day. Faige v. Fnllerton Wool- 
en Co., 27 Vt. 485. 

8. In book account the plaintiff had charged 



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CONDITION. 



the contract price for building a barn, which, 
by the contract, was to be done in a good, work- 
manlike manner. The auditor reported that 
some portion of the work was not so done, but 
that upon its completion the defendant **ac- 
C(?pted tlie bam upon the contract." Jleld to 
mean that the contract was fulfilled to the satis- 
faction of the defendant, and that this was a 
conclusive waiver of any claim for deduction 
from the contract price. Sea/rgent v. Seward, 
81 Vt. 609. 

9. Oliange of writing by parol. It is 
competent to sliow by oral evidence, as matter 
of defense, a parol waiver of performance of the 
conditions of a contract before breach, though 
in writing and under seal, or within the statute 
of frauds ; nor is it necessary that such altera- 
tion sliould be upon any new consideration, if 
acted upon. Laitrince v. Dole, 11 Vt. 549. 80 
Vt. 620. Sherwin v. Rut. & Bur. i?. Co., 24 
Vt. 847 ; and see Flanders v. Fap, 40 Vt. 816. 

10. Effect as to action on the contract. 
The time of performance of a condition preced- 
ent in a deed cannot be enlarged by parol agree- 
ment so that an action can he maintained upon 
the deed. Porter v. Steumrt, 2 Aik. 417. 27 
Vt. 774. Shtrwin v. Rut. <fc Bur. R. Co. Jos- 
lyn V. Taylor, 33 Vt. 470. 44 Vt. 895. 

11. In case of such enlargement or change 
by parol, if the party sues upon the contract 
specially, he must declare in assumpsit, treat- 
ing the enlargement as having incorporated into 
itself the terms of the ori:^nal contract, and so 
all as resting in parol. Shenrin v. Rut. 4& Bur. 
R. Co. Barker v. Troy & Rut. R. Co., 27 Vt. 
766. 

12. To maintain an action upon a sealed in- 
strument, the performance of any condition 
precedent must be averred according to the 
stipulation of the deed, and must be proved" as 
laid ; and no parol agreement to enlarge the 
time or change the mode of performance, and 
performance according to such parol agreement, 
can be averred or proved in such action. But 
where there; is a covenant to perform a certain 
thing at a certain time, if performance of an- 
other thing, or at a different time, be accepted 
in lieu of the other, it is an answer to an action 
for the non-performance of the thing stipulated. 
The distinction is between pleading the matter 
as a defense, and making it the ground of an 
action. Porter v. Stetrart, 2 Aik. 417. Taylor 
V. Gallup, 8 Vt. 349. 

13. Condition in conveyance. Where a 
deed from father to son of one-third the farm 
on which they resided was upon the ex pressed 
condition, that if the grantee should pay the 
grantor, or his wife, .^80 yearly so long as either 
should live, "if they or either of them shall re- 
quest the same, then this deed is good and 
valid— otherwise void ;" — Ileld, that it was re- 
quired that each sum sliould be demanded by 



itself, and at or about the close of the year for 
which it was claimed; and that any sum not 
so demanded was waived, or relinquished; 
that the condition should not be so construed 
as to permit the sums to be consolidated and 
demanded together and after the lapse of sev- 
eral years ; and that, without such yearly de- 
mand and non-payment, no valid cause of for- 
feiture had arisen. Buektnaster v. Needhamy 
22 Vt. 617. 

14. Where a deed is made upon condition 
to become void upon failure to support the 
grantor and pay his debts, ejectment will lie 
by the grantor, upon breach of either condition. 
I^mh V. Clark, 29 Vt. 278. 

15. Where a deed was made upon condition 
to become void, unless the grantee should sup- 
port the grantor and pay his debts ; — Held^ that 
if the grantee was obliged to furnish such sup- 
port elsewhere than at his own house — a point 
not decided— there was no wrongful neglect 
so to do, working a forfeiture of the estate, 
where no request had been made to furnish 
such support elsewhere, and no notice given 
that the grantor was in need of it ; and that the 
non-payment of one of the grantor's debts did 
not work such forfeiture, where the grantee 
had never lieen called on for payment, and the 
grantor had not paid it, nor been in any way 
damnified by it. lb, 

16. The plaintiff and defendant made an 
indenture, by which the defendant conveyed to 
the plaintiff a certain farm for the joint lives of 
the plaintiff and his wife, and the survivor of 
them, and the defendant covenanted that he 
would occupy and carry on the farm without 
sale or transfer, and from the avails and income 
would deliver to the plaintiff certain articles 
yearly, and would perform other specified ser- 
vices, &c., for the maintenance of the plaintiff 
and his wife, &c. Held, that the plaintiff 
acquired by the indenture an estate for life ; 
and that the defendant, as incident to his cove- 
nants and to enable him to perform the same, 
had a right to the occupancy of the farm ; but 
that on failure to perform such covenant for 
maintenance, the plaintiff could maintain eject- 
ment without giving any notice to quit. Oloott 
V. Duncklee, 16 Vt. 478. 19 Vt. 882. 20 Vt. 
415. 36 Vt. 234, 

17. Where A and B entered into a written 
contract that A should deed to B an undivided 
half of his farm, and B should give back a life 
lease, and should '*take the farm to the halves, 
or otherwise provide a decent and comfortable 
living for A and his wife during their lives, 
&c.," and that B should have the farm **8o 
long as he fulfils the above agreement," and the 
deed and the lease were afterwards given in 
accordance with the agreement and'to effectu- 
ate its provisions, but absolute in form, and 
without naming any of the terms of the written 



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contract, or referring to it, and there was no 
other consideration given by B; — Held, in 
chancery; (1), that the written contract deter- 
mined what were the rights and liabilities of 
the parties under the deed and lease, and the 
title which B acquired by the deed — viz., as 
conditional upon his fulfilling the stipulations 
on his part, contained in the written agreement ; 
(2), on neglect of which, A had the right to re- 
enter upon the whole farm, and hold the same 
free of any right of B therein. Tracy v. Iluteh- 
insy 86 Vt. 225 ;— distinguished (p. 234) from 
Duneklee v. Adams, 20 Vt. 416. 

18. The plaintiff conveyed his farm to the 
defendant, and took back a mortgage condi- 
tioned for the support and maintenance of the 
plaintiff during his natural life, &c. The con- 
dition of defeasance contained this provision : 
**or if J shall have an opportunity to sell said 
farm and shall wish to do so, I shall have 
the right to do so by paying or securing to 
said W [plaintiff] such sum and in such man- 
ner as the Judge of probate for the district of 
Caledonia, for the time l)eing, shall consider 
will be right and Just, &c.*^ In an action of 
ejectment for breach of the condition to sup- 
port, the defense set up was a substituted se- 
curity by the award of the probate Judge. Held, 
that the contract required a concurrence of both 
conditions, viz : an opportunity and a desire to 
sell, before the Judge of probate was authorized 
to act ; and that for want of proof of the exist- 
ence of these conditions, or of the former only, 
the award of the Judge was wholly inoperative. 
Weeks V. BaynUm, 37 Vt. 297. 

19. The Judge's award provided that the de- 
fendant should execute and deliver to the plain- 
tiff, within a time named, a bond, with one or 
more sureties, to the accept^ince and approval 
of tht cfMhier of the Bank of Caledonia, condi- 
tioned, &c. Semble, that this conferred upon 
the cashier a trust or discretion which, by the 
condition of the defeasance, was vested in the 
judge alone, and could not be shifted or dele- 
gated to any other person. lb, 

20. The plaintiff's counsel, at the time when 
the award was made, s^d in his presence that 
**they were satisfied, and had come out better 
than they had expected.'* Held, that the plain- 
tiff's silence when this remark was made could 
not, as matter of law, be treated as equivalent 
to such an acceptance of the award as would 
change his rights under the mortgage. Tb. 

21. Limitation. In case of a deed con- 
ditioned to become void unless a certain sum 
be paid by a day certain, the burden is on the 
promissor to prove such payment by the day ; 
— otherwise a breach of the condition occurs, 
which operates by way of limitation of the es- 
tate ; and in such case the law revests the estate 
at once without formal entry. Attstin v. Down- 
er, 25 Vt. 558. 



22. Reservation. A, by deed of warranty, 
conveyed certain lands to 8, and in the prem- 
ises of the deed, immediately following the de- 
scription, was this clause: ^'Conditioned, that no 
building or erection is ever to be made on said 
land except a dwelling house and out-buildings 
for the same, or such other buildings and erec- 
tions as would not affect the rights, privileges 
and interests of said A, or his heirs or assigns, 
to a greater degree than a dwelling house and 
out-buildings as aforesaid would affect his and 
their rights, interests and privileges ; the said 
A l)eing now the owner of a house and land 
westerly of and near said premises; and con- 
ditioned, also, that no building is to be erected 
on said land, which shall extend more than 
twenty feet southerly of the main body of the 
dwelling house now owned and occupied by the 
said A." In all other respects said deed was 
in the usual form of a deed without condition. 
Held, that said clause did not constitute a con- 
dition, either precedent or subsequent; nor yet 
a covenant, merely, that the grantor would 
abide by the terms of the condition ; but that 
it showed, with the rest of the description, 
what rights in the land passed to the grantee, 
and what were left remaining to the grantor; 
that the land, with the use thus restricted, pass- 
ed to the grantee, and the right to such restric- 
tion of the use remained to the grantor ; and 
that neither the grantee nor his assigns could 
make erections on the land in violation of such 
restrictions. Fuller v. Arms, 45 Vt. 400. 

23. A deed of land with a reservation of 
certain stone upon it, part of the realty, and the 
privilege of removing the same by a day named 
and of leaving what stone the grantor should 
choose at that time, was construed to mean 
that, if removed by that time, the stone belong- 
ed to the grantor ; but, if not removed by that 
time, his right to the stone was gone. Holton 
V. Goodrich, 35 Vt. 19. 

24. Relief in equity. Where a party 
wholly fails to perform the condition of his con- 
tract by the time stipulated, and gives no reas- 
onable excuse therefor, he will not be relieved 
in equity, nor be entitled to a specific perfor- 
mance by a subsequent offer to perform. White 
V. Yaw, 7 Vt. a57. 

25. Chancery will not relieve a party from 
the consequences of not complying with a con- 
dition precedent, where the non-compliance 
arose from his own inattention or negligence. 
Bamet v. JPassumpsie Turnpike Co., 15 Vt. 
757. 

26. A court of equity may grant relief from 
the forfeiture of an estate conditioned for the 
maintenance and support of the grantee. — this 
not as a matter of course and under all circum- 
stances, but it rests in the sound discretion of 
the court, according to the ^circumstances. If 
the breach of the condition is unintentional or 



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purely technical, and admits of compensation, 
relief will be granted— as in Henry v. Tupper, 
29 Vt. 358. ( Weeks v. Boynton, 37 Vt. 302. 
A'MUn V. AusUn, 9 Vt. 420.) 

27. AUter, where the breach is wilful and 
wanton, or attended with suffering or serious 
inconvenience to the grantee, or where there is 
good ground to apprehend a failure in future — 
as in Dunkiee v. Adams, 20 Vt. 415. 

28. Where a mortgage was given condi- 
tioned for the support of the mortgagee, the 
mortgagor made a second mortgage and then 
abandoned the premises and the further sup- 
port of the mortgagee. On a bill of foreclosure 
by the first mortgagee ;—IIeld, that the breach 
admitted of compensation, and the second 
mortgagee was let in to redeem, on the terms of 
making compensation for the past and provid- 
ing for the future support of the mortgagee. 
Aidstin V. Austin, 9 Vt. 420. 

29. The orator executed, as surety for anoth- 
er, a promissory note to the defendant, with the 
understanding that it was not to be delivered, 
or to be understood as taking effect, until the 
defendant complied with certain conditions. 
But the defendant, having got possession of the 
note, refused to comply with the conditions. 
On bill, the defendant was p(?rpetually enjoined 
from negotiating the note and from enforcing 
it against the orator. Chase v. Tvrrey, 20 Vt. 
395. 



GONSPIRAOT. 

1. In an action on the case against two or 
more in the nature of conspiracy, the conspiracy 
charged is important only as it serves to give 
character to the individual acts of those who 
were parties to it. The gist of the action is the 
damage sustained by the plaintiff, by reason of 
the fraud of the defendants. Sheple v. Page, 
12 Vt. 519. 

2. Where two or more combine together for 
the same illegal purposes, each is to be con 
sidered as the agent of the others, and the act 
of one, in pursuance of the object, is, in legal 
contemplation, the act of all. lb. State v. 
Thibea/u, 30 Vt. 100. Windof>er v. Bobbins, 
2 Tyl. 4. 

3. Their declarations stand upon the same 
ground. State v. Thibean, Jenne v. Joslyn, 
41 Vt. 478. 43 Vt. 52. 



I. 
II. 



CONSTITUTIONAL LAW. 

Powers of Legislatuke. 
Construction. 



I. Powers of Legislature. 

1. Generally. American legislatures have 
the same unlimited power in legislation which 
resides in the British parliament, except where 
they are restrained by written constitutions. 
Thorpe V. But. dt Bur, B, Co., 27 Vt. 140. 

2. Boles of descent. It is competent for 
the legislature to provide rules of descent of 
real estate, and to change them from time to 
time, provided the law is not retrospective. 
No one has a vested right of inheritance, before 
a descent cast. Oilman v. Morrill, 8 Vt. 74. 

3. Mode of conveying estates. It is 
competent for the legislature to prescribe the 
mode of conveying existing estates in property, 
especially real property ;— as, tliat a wife must 
join in the deed of her husband in conveying 
his interest in her lands, in order to the validity 
of the conveyance. Feck v. Walton, 26 Vt. 
82. 

4. Police power. Tlie police power of the 
State extends to the protection of the lives, 
limbs, health, comfort and quiet of all persons, 
and the protection of all property within the 
State, and applies as well to chartered corpora- 
tions as to natural persons, though such con- 
trol might materially aflfect the profits of the 
corporation. Thorpe v. But. <fe Bur. B. Co., 27 
Vt. 140. Under it, the legislature has power to 
require existing railroad corporations to main- 
tain cattle guards at all crossings, although not 
provided for in the charter ; and may, by general 
laws, impose upon railroads new conditions of 
like character, which are conducive to the pub- 
lic interest, to the extent of not destroying, or 
essentially modifying, the essential franchise of 
the corporation. lb. kelson v. Vt. <fe Canada 
B. Co., 26 Vt. 717. 

5. —over private corporations. The 
legislature may control the action, prescril)e 
the functions and duties of corporations, and 
impose restraints upon them to the same extent 
as upon natural persons, Uiat is, in all matters 
coming within the range of legislative author- 
ity, subject to the limitation of not impairing 
the obligation of contracts, provided the essen- 
tial franchise is not taken without compensa- 
tion. Thorpe v. But. d Bur. B. Co. State v. 
Bosworth, 18 Vt. 402. 

6. Power over municipal corporations. 
Tlie legislature may exercise over municipal 
corporations [as towns], exclusive control, and 
may constitutionally enlarge, restrain, and even 
destroy their municipal existence, as the public 
interests may require ; and may control the 
disposition of their property held for municipal 
and corporate purposes— as by dividing it be- 
tween the towns into which the old town may 
l)e divided. Montpelier v. East MotitpeUer, 29 
Vt. 12. S. a, 27 Vt. 704. 

7. This right over towns is not defeated nor 



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affected by the fact that the town ia, by its 
charter, made the trustee of property for other 
purposes than corporate and municipal use. 
Ih. 

8. But such grants in trust for other pur- 
poses than corporate and municipal use, are no 
more the subject of legislative control, than are 
the private and vested rights of individuals. 
lb. 31 Vt. 238. Poultney v. Wells, 1 Aik. 
180. 

9. The legislature has constitutional power 
to confer upon municipal corporations the right 
to make assessments upon the property bene- 
fitted, for the purpose of defraying the expenses 
of making local improvements. Woodhmme v. 
CUy of BurUngUm, An Vt. 300. 

10. Hnntingi &c. Laws regulating hunt- 
ing, fowling and fishing, are not in violation of 
the constitution of the State (section 40), unless 
clearly shown to be so prohibitory as to virtually 
deprive the inhabitants of the right secured. 
Stale V. NorUm, 45 Vt. 258. 

11. Betrospective legislation. Statutes, 
retrospective in their operation, are valid, with 
this qualification, that they do not impair the 
obligation— that is, the legal obligation — of con- 
tracts, or disturb absolute vested rights ; or, in 
other words, the legislature may change and 
modify remedies, forms of proceedings, or the 
tribunal itself, as it may choose, but it shall 
not directly, nor indirectly, destroy or abolish 
all remedy whatever, by which the perfonuance 
of an}' class of valid, legal contracts may be 
enforced. Poland, C. J. , in Richardwn v. Cook, 
37 Vt. 603. 

12. Taking for public nse. "Where the 
use is a public one, it rests wholly with the 
legislature to determine whether sufficient 
necessity exists to justify granting the power 
to take private property therefor, and courts 
will not interfere with the discretion of the 
legislature— at least, not unless the entire ab- 
sence of any necessity be shown. Poland, J., 
in WiWams v. School LHatHct, 33 Vt. 280. 

13. But the legislature has not the power to 
80 determine that a use is a public . use as to 
make that determination conclusive, but the 
existence of the right in the legislature, in any 
class of cases, is left to l>e determined under 
the constitution by the courts. The attempt 
of the legislature to exercise the right of emi- 
nent domain does not, therefore, settle that 
it has the right. Tyler v. Beacher, 44 Vt. 
648. 

14. Under the statutes of Vermont, the 
owners and occupiers of grist-mills are required 
to grind well and sufficiently all grain received 
by them for that purpose, at certain fixed rates 
of toll, but they are not compellable to receive 
grain for grinding against their will. Their 
mills are their own private property, subject to 
their own control, except as to that regulation, 



and the public has no rights whatever in them, 
or to the use of them. Held, therefore, that 
the flowage acts of 1866-7-8, professing to 
authorize the flowing of the lands of others for 
the benefit of such mills, upon compensation 
ascertained and paid, were not justified by the 
constitution authorizing the taking of private 
property for public use. (The fiowage acts of 
Massachusetts and the decisions of the courts 
of that and other States on this subject consid- 
ered.) lb. 

15. Law affecting former grant. It is 
well settled, that where there has been a Icgis- 
tive grant to a private corporation to erect a 
bridge, turnpike, or other public convenience, 
which is not in its terms exclusive, there is no 
constitutional obligation on the legislature not 
to grant to a second corporation the right to 
erect another bridge, or turnpike, for a similar 
purpose, to be constructed so near the former 
as greatly to impair, or even to destroy its 
value ; and this, without making compensation 
to the first corporation for the consequential 
injury. White River T. Co. v. Vt. Central R. 
(7o., 21 Vt. 690. 27Vt. 152. 

16. Taking franchise for public use. 
The essential franchise of a privato*corporation 
is private property, and cannot be taken with- 
out compensation, even for public use ; but 
may be taken for public use by making com- 
pensation—as the franchise of a turnpike cor- 
poration, or of a bridge corporation, for the use 
of a public highway, under G. S. c. 24, s. 7J). 
Armington v. Barnet, 15 Vt. 745. Wed Rher 
Bridge Co. v. I>ix, 16 Vt. 446. 27 Vt. 151 ;— or 
for the use of a railroad,— which is an improved 
highway,— when authorized by the charter of 
the railroad company. White River T. Co. v. 
Vt. Central R. Co,, 21 Vt. 590. 

II. Construction. 

17. Oonstruction. Questions arising un- 
der the constitution, settled by a long practice, 
and sanctioned by a judicial decision, should 
be considered as at rest. State v. Bomcorth, 13 
Vt. 402. 

18. Art. V. of the Amendments to the U. 
8. Constitution, which provides that '*no per- 
son shall be held to answer for a capital, or 
otherwise infamous crime, unless on a present- 
ment or indictment of a gnmd jury," htxs refer- 
ence solely to proceedings in the courts of the 
United States. SUite v. Keyes, 8 Vt. 57. 

19. The same is true as to Art. VII. of the 
amendments providing for trial by jury in suits 
at coumion law. Huntington v. BisJiop, 6 Vt. 
186, 193. 8 Vt. 64. 

See Statute, II. ; Intoxicating Liquor, I. ; 
Jury, III. ; Taxes, I. ; City of Burlington. ; 
Grants. 



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CONTEMPT. 

1. The power to punish for contempt is in- 
herent in the nature and constitution of a court. 
A justice of the peace, sitting as a court, has 
such power. In re Cooper, 32 Vt. 258. 

2. It is a contempt of court to assail its de- 
cisions, in presence of the court, with sneers, 
sarcasm or irony. lb, 

3. Where a court or magistrate, having the 
power to punish for contempt, has jurisdiction 
of the subject matter and the parties, the exer 
cise of such power is not revisable in any other 
court. lb. Vilas v. Burton, 27 Vt. 56. 



II. 



III. 
IV. 



VI. 



GONTBAOTS. 

(Simple.) 

Nature, REQrisiTES and Validity. 

1. Capacity of party; Contract implied 

bylaw; JDeUvery; Assent. 

2. Consideration. 
8. Illegality; Against public policy ; Be- 

straint of trade ; Duress. 

Interpretation. — Rules ; Instances ; 
Particular terms ; Usage ; Imw of 
place; Conditions prec-edent; De- 
pendent and independent stipula- 
tions; Penalty, or liquidated dam- 
ages ; Whether joint or several. 

Modification. — Rescission.— Power to 
Stop Performance. 

Certain Particular Contracts. 

1. For service. 

2. Of indemnity. 
8. Agistment. 
4. Contracts in the alternative. 

Action on Simple Contract. 

1. Parties, 

2. Action and defense as dependent on 

demand,— expiration of credit,— per 
formance, 
8. Action, general or special. 
Damages. —Recoupment. 

I. Nature, Requisites and Validity. 



1. Capacity of party ; Contract implied by law ; 
Delivery ; Assent. 



1. Oompetency. One may bind himself 
by his contract, though his intellectual capacity 
is below that of the average of mankind, pro- 
vided he has sufficient understanding to know 
the nature and consexjuences of his act at the 
time. Day v. Seely, 17 Vt. 542. Mann v. Bet- 
terly, 31 Vt. 826. 

2. Intoxication, to avoid a contract, must 
be of that degree which prevents the party from 



knowing the consequences of his agreement. 
Foot V. Ttwkslmry, 2 Vt. 97. Although such 
intoxication be voluntary, such contract may 
be avoided. Barrett v. Buxton, 2 Aik. 167. 
16 Vt. 886. 24 Vt. 425. 

3. Implied by law. There are numerous 
cases, where from the circumstances the law 
implies a legal obligation and a promise, though 
there was no express promise, and no intent 
l)etween the parties to enter into a contract. 
Paddock V. Kittredge, 31 Vt. 378, 884. Ives v. 
nulet, 12 Vt. 814, 827, 

4. Delivery. The delivery of a written 
contract is no part of the contract, and is not 
proved by it. The delivery is an act done in 
reference to it and indispensal)le to give it effi- 
cacy, intervening between the execution of the 
contract and the time when it becomes opera- 
tive ; and the proof of the delivery rests essen- 
tially in parol, and is a question of mutual in- 
tent and purpose, both parties intending there- 
by to make the contract operative and binding. 
King v. Woodbridge, 34 Vt. 565. Holmes v. 
Crossett, 33 Vt. 116. 

5. Where a written agreement not to sue 
was set up in defense of an action ; — Held, 
that the defense could be met by parol evidence 
that the writing was handed to the defendant 
to procure other signatures, and was not to l>e- 
come operative unless signed by all the defend- 
ant's creditors, and that it was not so signed ; 
that it was not delivered as an existing con- 
tract. Holmes v. Crossett ; and see Harrington 
V. WHght, 48 Vt. 427. 

6. —implies acceptance. A paper passed 
as a receipt and contract, but accepted as a re- 
ceipt only, does not take effect as a contract. 
A legal delivery implies an acceptance. King 
V. Woodbridge, 84 Vt. 565. 

7. Date. A written contract takes effect 
from its delivery, or time of actual execution. 
Its validity is not effected by its having no date, 
or a false date. In declaring upon it, if dated, 
it need not be described by its date, if suffi- 
ciently described otherwise ; and where averred 
to have been executed on a certain day, it is no 
variance that it bears date of a different day ; 
but if the date be averred, this becomes descrip- 
tive and must be proved as laid. Broughton v. 
FuUer, 9 Vt. 878. Clark v. Kidd^, 12 Vt. 689. 
Woodford V. Dontin, 8 Vt. 82. 

8. Signed at different times. A written 
contract was signed by pert of the defendants 
at its date, and by the others some months after- 
wards, but had been adopted and acted under 
by the other party, with the knowledge of all 
the defendants, from its date. Held, that the 
defendants last signing should be considered as 
having adopted the contract as of its date, and 
it is evidence that the contract was, in point of 
fact, made by all the defendants at that time. 
Steams Y. Haven, 16 Vt. 87. 



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9. Adoption without signing. The ac- 
ceptiDg and adopting of a written contract, by 
a party to it who has not signed it, binds him 
equally as if he had signed it. Patchin v. 
Sw^t, 21 Vt. 292. Troy Academy v. Nelson, 
24 Vt. 189, 194. Smith v. Kellogg, 46 Vt. 660. 
Phelps V. Stetnart, 12 Vt. 250. Brandon Mfg. 
Co. V. Morse, 48 Vt. 322. 

10. In an action on a contract to pay inter- 
est on certain stocks of the plaintiff, &c., the 
declaration averred, as the consideration of the 
defendants' promise, a promise by the plaintiff 
that the defendants should have all the profits 
on such stocks. The contract was in writing, 
signed by the defendants only, and set forth 
their promise to pay such interest, '' by having 
all the profits," «&c. Held, that the writing did 
not necessarily import that the plaintiff retained 
the right of withholding those profits, and that 
the consideration, as alleged, viz : the plaintiff's 
promise, might be inferred from circumstances 
and the conduct of the parties under the con- 
tract. Phelps V. Stewart. 

11. Marginal entries. Entries made upon 
the margin of an instrument before signing are 
regarded as a part of it. Patch v. Phcmiic Ins. 
Co., 44 Vt. 481. Fletcher v. Blodgett, 16 Vt. 
26. 

12. Agreement to put in writing. Where 
parties entered into a parol agreement, but it 
was also agreed that their contract should be 
reduced to vmt'mg ;—Held, that either party 
could refuse to enter upon the performance of 
the contract until so reduced to writing. Cong- 
don V. Darcy, 46 Vt. 478. Patge v. Fullerton 
Woolen Co., 27 Yt. 487. 

13. Assent requisite. The plaintiff brought 
to the defendant a quantity of salts, to be ap- 
plied as payment on a contract not yet due. 
After the salts had been weighed and left at 
the defendant's ashery, the contract was brought 
forward, when the plaintiff finding it read for 
gross weight refused to have the salts applied 
upon it, but the defendant so applied them and 
refused to account for them in any other way. 
Held, that the defendant could not be made 
debtor for the salts against his will, and was 
not liable in an action for goods sold and deliv- 
ered. Durrill v. Lawrence, 10 Vt. 517. 28 
Vt. 657. 

14. Where one for whom work is being done 
— asjthe building of a barn— sees the work going 
no from day to day before his eyes without ob- 
jection, and finally accepts the thing by silent 
acquiescence, he must be bound by it. Austin 
V. Wheeler, 16 Vt. 95. 27 Vt. 232. 

16. The defendant, guardian of a n^n com 
pos, agreed with the plaintiff to keep the ward 
at $1.50 per week, but without agreement as to 
time. At the end of some 14 months, the 
plaintiff gave the defendant notice to take the 
ward away, and that he would not keep him 



longer for less than $2 per week. The defend- 
ant went' to remove his ward, but the ward 
was unwilling to go, and the defendant left 
him, the plaintiff repeating his notice. The de- 
fendant made no express promise to pay more 
than $1.50; hut,— Held, that the defendant 
sho^^Id be treated as having acquiecsed in the 
plaintiff's claim for the additional price and 
that he was liable therefor, but was not liable 
for extra charges beyond that sum. Hutchinson 
V. Hutchinson, 19 Vt. 487. 

16. The defendant was under contract to 
support the town's poor for several years, at a 
price agreed, and engaged the plaintiff to board 
one of such paupers for $1.25 per week. At 
the end of the year, the defendant sent word to 
the plaintiff that if he could not keep the pauper 
another year at $1.00 per week, he [defendant] 
would come and take her away. The plaintiff 
returned word that he could not keep her for 
$1.00 a week, and to come and take her away. 
The defendant did not go and take away the 
pauper, but suffered her to remain during the 
whole year, and at the end of that year sub- 
stantially the same thing took place between 
the parties, and the pauper remained another 
year. Held, that a request was implied that the 
plaintiff should keep the pauper until the de- 
fendant should come for her, and his failure to 
come and take her away might be l^garded as 
an assent to the plaintiff's proposal to keep her 
at the proposed price of $1.25 per week, and 
that tlie plaintiff might recover that sum. Wor- 
cester V. Ballard, 38 Vt. 60 — criticising Aldrich 
V. Ixmdonderry, 5 Vt. 441. 

17. The plaintiff, who had been keeping her 
child as a pauper of the defendant town under 
a contract as to compensation, notified the de- 
fendant's overseer of the poor, at the close of 
that contract, that if the child should grow 
worse she must have an extra compensation. 
The overseer allowed the child to remain in her 
care. Held, that the overseer's assent to this 
proposition should be presumed. At the end of 
the next year the overseer offered the plaintiff 
a certain price per week for keeping the child, 
which the plaintiff refused. The overseer then 
attempted to remove the child to other quarters, 
when the plaintiff resisted him. The overseer 
then told the plaintiff that if she refused to al- 
low the child to be removed, he should pay 
only that price for future keeping. The plain- 
tiff kept the child. Held, that this was an 
assent to the offer of the overseer. Buck v. 

Worcester, 46 Vt. 2. 

18. The defendant consigned to the plain- 
tiffs, commission merchants in Boston, certain 
cheese to be sold **to the best advantage." The 
plaintiffs sold and delivered the cheese on what 
was called "a sale for cash" on the 12th of Sep- 
tember, and on the 20th of September sent the 
defendant an account Qf sales, stating tlie 



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balance due, and that he could draw for it at 
si^ht. The defendant drew a part of that bal- 
ance. In point of fact, the purchaser did not 
pay the plaintiflfs for the cheese, but put them 
off from time to time, and finally l)ecame bank- 
rupt. In an action of b(X)k account ; — Held, 
that the plaintiff had assumed that debt as cash 
in hand, and could not recover what he had 
paid on account of it. Jackmn v. Bi^mnetU^ 
24 Vt.6n. 

2. Cansideration. 

19. Moral obligation. Dictum — a moral 
^obligation is a sufficient consideration for an ex- 
press promise. Barlow v. ST/uthy 4 Vt. 144. 
OUnts V. BforJi, 5 Vt. 172. 

20. But such obligation must be strict and 
undoubted. Indeed, it seems that a promise 
to do that which the law did not render com- 
pulsory will not give a right of action, except 
where there was an original consideration bene- 
ficial tolhc party promising, and which might 
have been enforced through the medium of an 
implied promise, had it not been for some 
statute provision, or some positive rule of law, 
which exempted the party from legal. liability 
in the particular instance. Hawley v. Farrar^ 
1 Vt. 420. 

21. Tlie defendant, for Ids own purposes and 
without leave of the plaintiff, brought a suit 
in the plaintiff's name which proceeded to judg- 
ment for costs against the plaintiff, and execu- 
tion issued. Thereupon the defendant express- 
ly promised the plaintiff, in consideration of 
the premises, to save the plaintiff harmless 
from all liability on said execution. Held, that 
such promise was upon sufficient consideration 
to sustain an action of assumpsit thereon. 
Blodget v. Skinner, 15 Vt. 716. 

22. Past consideration. It is not tme, 
as a general proposition, that a moral obligation 
is not sufficient to give a legally binding force to 
an express promise, except in cases where there 
had once existed a legal obligation. If the con- 
sideration, even without request, moves directly 
from the plaintiff to the defendant and enures 
directly to the defendant's benefit, the promise 
is binding, though made on a past consideration 
— the subseciuent promise being equivalent \o a 
previous request. Boothe v. FiUpatricJc^ 36 
Vt. 681. 

23. The plaintiff took up and kept an estray 
animal, but did not proceed under the statute 
in such way as to hold the animal or make the 
owner legally chargeable with the keeping. The 
owner afterwards took away the animal and 
then promised to pay for the past keeping. 
Held, that the promise was on good considera- 
tion and legidly binding. H). 

24. Legal obligation. A promise by a 
party to do what he is bound in law to do, is not a 



I sufficient consideration to sustain a contract ; — 
' otherwise, as to a promise to do what the party 
is only morally bound to do. Cobb v. Cowdery, 
40 Vt. 25. 

25. Value received. The words "for value 
received" in a written contract furnish sufficient 
evidence, prima facie, at least, of a considera- 
tion. Brooks V. Page, 1 D. Chip. 845. Lap- 
ham V. Barren, 1 Vt. 247. 19 Vt. 206. 

26. Other sufficient considerations. A 
promise in writing to pay the amomitof an exe- 
cution to the attoniey of the creditor, in consid- 
eration of an assignment of the execution to the 
promissor, was held valid, where the debtor was 
at once discharged from custody on the execu- 
tion, at the request of the promissor, although 
the assignment was not in fact made until pay- 
ment was afterwards demanded. Page v. 
Thrall, 2 Vt. 448. 

27. The defendant requested the plaintiff to 
purchase a note which the defendant had given, 
and after the purchase promised to pay the con- 
tents to the plaintiff. In an action on the note ; 
— Held, that the defendant could not set up 
want of consideration. BUmNMqlUnn, 6 Vt. 529. 

28. The plaintiff and another fontracted 
with the defendant and others to build a meet- 
ing house, for a certain price, and afterwards 
abandoned the work, when the defendant alone 
contracted with the plaintiff alone, that the 
plaintiff should resume the work and finish the 
house at the same price, and promised to pay 
what it cost more. Held, that this new obliga- 
tion and duty was a good consideration for the 
defendant's promise. Morriwn v. Heatft, 11 
Vt. 610. 

29. The release of a doubtful right is a suf- 
ficient consideration to support a promise. 
Blake v. Peck, 11 Vt. 483. 

30. The giving up and making over of a 
mail contract, though it has gone no further 
than the acceptance by the Post Office Depart- 
ment of a bid, is a sufficient consideration for 
any contract. Carlton v. Jackson, 21 Vt. 481. 

31. Mutual and concurrent promises afford 
a sufficient legal consideration for the support 
of each other. Mi^sisquoi Bank v. Saiin, 48 
Vt. 239. 

32. The orator transferred to his son certain 
property, in consideration that the son had 
bound himself to support the orator and his 
wife during their lives. The son died soon 
after. Held, that the sale was upon an executed 
consideration, and that chancery would not en- 
join the administrator of the son from prosecut-* 
ing an action at law to recover the property. 
Deveratix v. Cooper, 15 Vt. 88. 

33. An agreement to forl)ear, or not to sue, 
may be a sufficient consideration to sustain an 
agreement to pay, &c., although no certain 
time of forbearance \m stated or agreed upon. 
Hakes v. Hotchkiss, 23 Vt. 281. 



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34. The declaration in assumpsit averred 
that a certain suit was pending against this 
plaintiff in favor of one C, in which this de- 
fendant was bail for the prosecution, and that 
this defendant, before the return day, promised 
this plaintiff that if he would make no expense 
or preparation for the trial, and would not at- 
tend the court, he (the defendant) -would pro- 
cure C to discharge his action and not further 
prosecute it— and assigned a breach. JTeldy on 
motion in arrest, that the declaration set up a 
sufficient consideration for the promise. Ham- 
tnand v. Cook, 26 Vt. 295. 

35. The abandonment of a suit, or the dis- 
charge of a trustee, is a sufficient consideration 
to support a promise, although there may not 
have been good ground for recovery. Cross v. 
Riehardaan, 30 Vt. 641. 

36. A mutual agreement to extend the time 
of performance of a special contract, requires no 
new extraneous consideration to support it. €t 
is promise for promise, and such new or further 
agreement may be declared upon and a recovery 
bad for such damages as the breach of it has occa- 
sioned, though in excess of what would have 
arisen under the original contract. HiU v. 
8mUh, 34 Vt. 585. 

37. A mere indebtedness to three jointly, is 
not a sufficient consideration to support a prom- 
ise, express or implied, to one separately to pay 
him his portion of the debt. Vadakin v. Sojper^ 
1 Aik. 287. 

38. But if the other two creditors, or the 
firm, had given a written order on the debtor 
to pay to one of them his share of the joint 
debt, and this had been accepted and agreed to 
by the debtor, such mutual agreement of the 
parties would have sustained the action in favor 
of such one of the creditors. See AlUs v. Jewell, 
36 Vt. 551. 

39. A general settlement, made on the 
faith of the withdrawal and abandonment of 
a disputed item, is a sufficient consideration 
to render such adjustment binding, and sat- 
isfies the claim. Morgan v. Adams, 37 Vt. 
283. 

40. Where a contract is payable in specific 
articles or property, the time or mode of pay- 
ment may be varied by a new agreement made 
before the original contract has become pay- 
able ; and if relied upon, the original contract 
is not converted into a money demand by non- 
payment at the time therein set, though there 
was no consideration for such new agreement. 
But in case of a debt already due and payable 
in money, an agreement to extend the time of 
payment requires a new consideration. Thrall 
V. Mead, 40 Vt. 540. 

41. Insiiiftcient consideration. A prom- 
ise to a sheriff who had suffered an execution 
to run out in his hands, in consideration that he 
would Dot take out an alku execution, is void for 



want of consideration. Flagg v. Walker^ Brayt. 
24. 

42. H, at the special request of F, purchased 
for him a quantity of tin in boxes, and deliv- 
ered it to him in the same condition, unopened, 
and without knowledge of any defect. After- 
wards, on opening the boxes, F discovered that 
the tin was materially damaged ; on notice 
whereof, H promised F to make him an equi- 
table allowance upon his note given for the tin. 
Held, that such promise was void for want of 
consideration, there being neither fraud nor 
warranty. JIattley v. Farrar, 1 Vt. 420. 

43. A stipulation between creditor and 
debtor, founded upon no new consideration, 
that the former will receive payment, in ser- 
vices, of a debt then due him in money, is bind- 
ing no longer than the parties continue to act 
under it, and the creditor may at any time put 
an end to it, and sue for payment. Bates v. 
Starr, 2 Vt. 536. 

44. Parties to a controversy having submit- 
ted the same in writing to arbitrators, the de- 
fendants, not interested, promised in writing 
that 'Mn consideration of the within submis- 
^^,'* they would pay to one of the parties the 
sum to be awarded him. Held, that there was 
no sufficient consideration to sustain the prom- 
ise. BarUnt) v. SmUh, 4 Vt. 139. 

45. The plaintiff, being siu*ety for A, be- 
came uneasy and unwilling to remain longer in 
that position, whereupon A, in order "to keep 
the plaintiff easy and contented without the 
immediate payment of the debt, and to ren- 
der the plaintiff secure," &c., procured T to 
sign with him a written agreement to indemni- 
fy the plaintiff. The plaintiff was afterward^ 
obliged to pay the debt. In an action against 
A and T upon the agreement ; — Held, that it 
was void for want of consideration. Rix v. 
Adams, 9 Vt. 288. See 28 Vt. 231. 

46. Where a declaration in assumpsit counts 
upon a promise made upon a past consideration, 
it is necessary both to allege and prove that this 
was at the request of the defendant, or that the 
defendant derived benefit from the considera- 
tion. A promise to indemnify the plaintiff for 
having become surety for a third person, not 
at the request of the defendant, and without a 
new consideration, is void for want of consid- 
eration. Harding v. Cragie, 8 Vt. 501. Bix v. 
Adams. 

47. A, being administrator of B and guar- 
dian of C, presented claims in their favor re- 
spectively to commissioners on the estate of D, 
and had them allowed. A died, and the plain- 
tiff, his administrator, claimed payment of 
these debts from the defendant, the executor of 
D, and the defendant gave the plaintiff his note 
therefor. Held, that the plaintiff acqmred no 
interest in these debts as administrator of A, 
and that the note was without con9ideration. 



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Sowles V. Sotclett, 10 Vt. 181. 8, C, 11 Vt. 
146. 

48. The simple promise of the debtor of A 
to pay that debt to B, is nudum pactum as to 
B, so long as the debtor remains liable to A. 
PlMlan V. SU'les, 11 Vt. 82. 

49. The promise of one already legally liable 
to pay a debt, that he will pay it if delay be 
given him, creates no new duty or legal lia- 
bility. A promise to pay, or a part payment of 
a debt already due, is not a sufficient considera- 
tion to support an agreement to delay, but such 
agreement is nudum pactum. Wheeler v.* WatJi- 
bum, 24 Vt. 293. Mamn v. Peters, 4 Vt. 101. 
Itu99eU V. Buck, 11 Vt. 166. lb. 66. Pameroy 
V. Slad£, 16 Vt. 220. Cole v. Shurtleff, 41 Vt. 
811. 

60. A, holding two promissory notes against 
B, and both due, promised B that if he would 
pay one, the time for payment of the other 
should be extended one year. B thereupon 
Iwrrowed the money and paid the first note. 
Ifeldy that such promise was without consid- 
eration, and was no bar to an action upon the 
other note, commenced within the year. Ponte- 
roy V. Slade, mpra, 24 Vt. 296. 41 Vt. dj^ 

51. The plaintiff, the defendant, and B, 
agreed that the defendant should employ B to 
build a mill, and that the defendant should pay 
B's earnings to the plaintiff to apply on B's 
then indebtedness to the plaintiff. The defend 
ant's contract with B was, that unless the mill 
should be so constructed as to be of a certain 
power and do good business, he should have 
nothing. B so built the mill that it was good 
for nothing, but was a damage to the defendant. 
Heldj that the defendant was not liable to the 
plaintiff upon the agreement to pay him B's 
wages, although the plaintiff was ignorant of 
this special stipulation with B, since the defend- 
ant received no value for his promise, and the 
plaintiff parted with nothing. Burlbut v. Chtt- 
tenden, 26 Vt. 52. 

52. Slight consideration. If the thing be 
understandingly done, mere inadequacy of price 
will never excuse the performance* of a contract. 
Harnngt4>n v. W>^, 12 Vt. 505. 

53. P agreed with It, that if U would re- 
main for the purpose of closing certain con- 
tracts for the sale of land, he would pay R one 
dollar an hour for every hour he should delay 
R after a certain hour. R was thus delayed 
ten hours beyond the hour named, and charged 
P therefor, on bt>ok, jHO. Held, that this was a 
valid contract, and that the price agreed was 
recoverable of P in an action of book account. 
Paige v. Ripley, 12 Vt. 289. 

3. Illegality. 

54. Violation of law. If part of the con- 
sideration of a contract be merely void, the 



contract may be supported by the residue of 
the consideration, if good per »e ; but if any 
part of the consideration be illegal, it vitiates 
the whole. Cobb v. Coicdery, 40 Vt. 25. Wood- 
ruff V. Hinrmtn, 11 Vt. 692. Hineaburgh v. 
Sumtier, 9 Vt. 23. Diavn v. Olrnstead, 9 Vt. 
310. BoiPen v. Buck, 28 Vt. 308. 

55. A contract in contravention of the pro- 
visions of a statute is void, although the statute 
only inflicts a penalty— because the penalty im- 
plies a prohibition. Elkins v. ParkiiurH, 17 - 
Vt. 105. 

66. The law of Congress having prescribed 
the fee of agents and attorneys for services in 
procuring a pension, and punishment for taking 
more ;—Jleld, that no larger sum could be re- 
covered, either upon an express contract, or up- 
on a quantum meruit. Morgan v. Bams, 47 Vt. 
610. 

57. If the suppression of evidence in a crim- 
ioal prosecution constitutes any part of the con- 
sideration of a contract, the contract is wholly 
void. Badger v. Williams, 1 D. CUiip. 137. 

58. A promissory note given in whole or in 
part for the compounding of penalties, or the 
suppressing of a criminal prosecution, is void, 
the consideration being illegal. Hinesburgh v. 
iSMz/ifwr, 9 Vt. 23. Woodr^tff v. Hinman, 11 
Vt. 592. B<nten v. Buck, 28 Vt. 308. 

59. A receipt in full of all demands, given 
upon consideration of stifling a criminal prose- 
cmion, is void, and leaves the claim in force. 
Bailey v. Budc, 11 Vt. 252. 

60. The defendant induced the plaintiff to 
come from New Hampshire into this State, after 
having procured a warrant for his arrest and 
surrender to the authorities of New Hampshire 
to answer to the charge of forgery there com- 
mitted, and, on being threatened with service 
of the warrant, the plaintiff let the defendant 
have a horse by way of compromise, the de- 
fendant agreeing not to prosecute the matter 
further. Held, that whether the plaintiff was 
innocent or guilty of tlie charge, the contract 
was illegal ; but that the parties were in pari 
delicto, and the law would not aid the plaintiff 
in recovering back what he had paid. Duron v. 
Olmstead, 9 Vt. 310. 28 Vt. 313, 316. 

61. Outlawed property. Courts of justice 
will not sustain actions in regard to contracts, 
or property, which have for their object the 
violation of law. Huch property is, so to speak, 
tmtlaired, and is common plunder. If, instead 
of putting his property to honest uses, the owner 
convert* it into an engine to injure the life, lib- 
erty, health, morals, pt»ace or property of others, 
he thereby forfeits all right to the protection of 
the bona fide interest he had in such property 
before it was put to that use. And he can, I 
apprehend, sustain no action against any one 
who withholds or destroys the property, with 
the bma fide iotentjoR of preventing injury tq 



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himself or others. Redjield, J., in Spalding v. 
Preston, 81 Vt. 9. 

62. Held, that an action will not lie in favor 
of the publisher of a newspaper upon an agree- 
ment to indemnify him for the publication of a 
libel, and to indemnify him for refusing to give 
the name of the author. AUam v. Johnmn, 43 
Vt. 78. 

63, No action will lie to recover back money 
or property advanced upon an illegal contract. 
Barnard v. Crane, 1 Tyl. 457. For distinction. 
see UinMUU v. White, 34 Vt. 558. 

64« Against public policy .—Legislature. 
An agreement of a corporation, upon considera- 
tion tliat a party would withdraw opposition to 
the passing of an act of the Legislature touch- 
ing its interests, was held to be against public 
policy and void. Pingry v. Waahbiim, 1 Aik. 
264. 14 Vt. 387. 

65. —sale of office. The sale of an office, or 
of any agency or influence in the procuring of 
one, is illegal, and any contract, made upon any 
such consideration, is void. FerrU v. Adamn, 
23 Vt. 130. Meacham y.Dmr, 32 Vt. 731. 

66. —hired electioneering. The plaintiff 
was a candidate for the office of town represen- 
tative. The defendant owed him. They agreed 
that the defendant should use his influence and 
do what he could for the plaintiff's election, and 
if elected, that should be a satisfaction of the 
plaintlflTs claim. Nothing was said specially 
about the defendant's vote, but he did vote for 
the plaintiff, and would not have done so, nor 
have favored the plaintiff's election, but for the 
agreement. The plaintiff was elected, but gave 
no discharge of the debt. In an action to re- 
cover the debt;— J/<f?W, that the agreement set 
up in defense, although not agreed to be kept 
secret, was immoral and void — (1), As a Iwr- 
gain of the defendant to sell his own vote ; (2), 
to use his influence and exertions in the elec- 
tion against his convictions and opinions. Nichols 
V. Mudgett, 32 Vt. 646. 

67. —lobbying. An agreement in respect to 
services as a lobby agent, or for the sale by an 
individual of his personal influence and solicita- 
tions to procure the passage of a public or pri- 
vate law by the Ijegislature, is void as being 
prejudicial to sound legislation, manifestly 
injurious to the interests of the State, and 
in express and unquestionable contravention 
of public poUcy. Potcers v. Skinner, 34 Vt. 
274. 

68. Distinction taken between this, and an 
employment to conduct properly an application 
to the Legislature. lb. 

69. —affecting duty of public officers. An 
agreement with a deputy sheriff, about to arrest 
a debtor on execution, that, if he will forbear, 
the promissor will have the debtor forthcoming 
at a future time to be taken on the execution in 
its life, is not illegal ; and the deputy may sus- 



tain an action thereon in his own name. Miller 
V. Ooold, 2 Tyl. 439. See 6 Vt. 67. 

70. The defendant promised the plaintiff, an 
officer, who had arrested a debtor on execut ion, 
that if the plaintiff would suffer the debtor to 
remain with the defendant and in his keeping, 
he would have the debtor /forthcoming to be 
committed in the life of the execution. Held, 
that the promise was upon an illegal considera- 
tion, and was void in law. Stevens v. Webb, 2 
Vt. 344. 18 Vt. 22. 

71. The defendant being legally imprisoned 
for a military fine gave his note to the adjutant 
of the regiment, instead of money, in SiUisfac- 
tion of the execution, and was discharged. Held, 
that the note was upon sufficient consideration. 
Kingsiniry v. Whitney, 5 Vt. 470. 

72. The plaintiff, a deputy sheriff, held 
against the defendant an execution for collec- 
tion, when the defendant promised him that if 
he would levy the execution upon real estate, 
the defendant would pay him for doing it, and 
would indemnify him. The plaintiff made such 
levy, instead of taking personal property, for 
which the • execution creditor sued the sheriff 
and recovered judgment, which the defendant 
paid. Held, that it did not appear that the con- 
tract was understood to be for mere ease and fa- 
vor, or to hire the plaintiff to violate a known 
official duty, and that the plaintiff was entitled 
to recover the fees for the levy. GUason v. 
J^riggs, 28 Vt. 135. 

73. A contract to indemnify a sheriff for 
past neglect is not illegal. Hall v. Huntoon, 17 
Vt.244. 

74. —interest of towns. The consideration 
of a promissory note was, that the plaintiff 
would forbear to bid against the defendant for 
the support of the town paupers at a public auc- 
tion. Held, that such contract tended to work 
injustice to the town, was against public policy, 
and was void. Noyes v. Pay,\4 Vt. 384. 

75. The plaintiff, a physician, contracted 
with the overseers of the poor of P, to attend 
upon a pauper then chargeable toP, and that if 
P should, by a contemplated order of removal, 
succeed in establishing the legal settlement of 
the paui)er to l>e in 8, then P should pay him 
a reasonable compensation for his services— oth- 
erwise, nothing. P did succeed in establishing 
such settlement to be in S. In a subsequent ac- 
tion by P against 8 to recover such expenses, 
it was adjudged that, as between the towns, 
such contract was so far against public policy 
that P could not recover. In this action against 
P, held, nevertheless, that the contract was 
valid, as between these parties, and that 'the 
plaintiff could recover. Edson v. Pawlet, 22 
Vt. 291. See Pawlet v. Sandgate, 19 Vt. 621. 

76. —private interests. The plaintiff was 
in the employ of O, temporarily, as clerk in his 
store. O sold out the goods to the defendant, 



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to be appraised by one P. The plaintiff did not 
intend to remain during the invoicing and ap- 
praisal, but consented to do so upon the defend- 
ant's promise to pay him ^25, for assisting 
therein. At the same time he expected to re- 
ceive from O, and did receive from him, the 
same pay as before'the sale. This the defend- 
ant understood. Held, that the promise was up- 
on good consideration, and the contract was 
not void as against public policy. S/uiUurJc 
V. ^eWs, 44 Vt. 262. 

77. Where one creditor, who had an indi- 
vidual claim against an embarrassed debtor, and 
was also member of a firm to which such debtor 
was indebted, consented to make his firm, with 
other creditors, parties to a contract with the 
debtor to extend the time of payment of their 
claims for a specified period, if he could receive 
security for his individual claim, and the debtor 
gave such security ; — Held, that thisfact merely, 
in the absence of any evidence that the exist- 
ence of this claim was denied to the other sign- 
ers of the contract, or that they were encour- 
aged to expect that it would be treated as em- 
braced in the contract, did not invalidate the 
contract. Jjoomis v. WainwHght, 21 Vt. 520. 

78. A contract between two trustees, by 
which one was allowed to speculate for his ad- 
vantage upon trust funds for a consideration to 
be paid to the other, was held illegal and void. 
FooU V. Emerson, 10 Vt. 338. 

79. Whether an agreement to abstain from 
bidding at a sheriff's sale is a legal considera- 
tion to support the promise of another success- 
ful bidder, to share the benefit of the purchase— 
quo^e, Paige v. Hammond, 26 Vt. 375. But 
see Noyes v. Day, 14 Vt. 384, and as cited, 47 
Vt. 71. 48 Vt. 246. 

80. A contract to forbear purchasing cer- 
tain land at private sale, and to assist the plain- 
tiff in the purchase thereof, is not void as against 
public policy. Morrison v. Darling, 47 Vt. 67. 

81. Where two mortgagees of land, about to 
be sold in bankruptcy, agreed that one or the 
other should bid at the sale, and that the one to 
whom the land should be ** struck off" should 
hold it in trust, sell it, and apply the avails in 
certain agreed proportions upon the mortgages; 
—Held, that such contract was on good consid- 
eration, and was not void as against pul)lic pol- 
icy. Mimsquoi. Bank v. Sabin, 48 Vt. 239. 

82. The defendant, one of several heirs of 
an estate, appeared before the probate court, 
but solely on his own account, to oppose the al- 
lowance of the plaintiff's account as administra- 
tor of said estate. In consideration that the 
defendant would withdraw his opposition, the 
plaintiff executed to the defendant a release of 
a debt due from him to the estate. Held, that 
such release was upon sufl9cient consideration, 
and was a bar to a recovery for such debt. Hol- 
lyrook V. Blodget, 5 Vt. 520. 



J3. In consideration of a promise by the de- 
fendant to pay the plaintiff, a lawyer, extra for 
his services beyond the fees allowed by law to 
administrators, the plaintiff undertook the ad- 
ministration of the estate of the defendant's 
father, which involved matters of complication 
and difllculty, requiring the services of a law- 
yer. Held, that this was a promise for com- 
pensation, beyond statutory fees, for services 
beyond the ordinary services of an administra- 
tor, and was a valid contract, not prohibited by 
statute, nor against public policy. HubbeU v. 
Olmstead, 36 Vt. 619. 

84. Services performed in giving informa- 
tion to the defendant as to who were witnesses 
in a suit in which the defendant was interested 
and what could be proved by them, in pursu- 
ance of an agreement to that effect, were held to 
be a good consideration for a contract. Cobb v. 
Cmrdery, 40 Vt. 25. Chandlery. Mown, 2 Vt. 
193. 

85. —Maintenance. The plaintiff and de- 
fendant having a similar interest, dependent up- 
on a settlement of the same question, orally 
agreed that the plaintiff should commence and 
pro.<*ecute a suit in his name, by which that ques- 
tion would be decided, and which, as they be- 
lieved, would practically enure to the benefit of 
both ; — that the plaintiff should make all the 
disbursements, and when finally ascertained and 
adjusted, that the defendant should pay the 
plaintiff the one-half. The plaintiff accordingly 
brought and prosecuted his suit to judgment, 
and, having paid all the expenses thereof, 
brought this action of general assumpsit for 
money paid, to recover the one-half. Held, that 
the defendant's promise was upon good consid- 
eration ; that the agreement was not within the 
statute of frauds ; that it was not against pub- 
lic policy, as for maintenance; and that the 
plaintiff could recover against a plea of the stat- 
ute of limitations, the one-half of such expenses 
which the plaintiff paid within six years before 
the suit. Dorwin v. Smith, 35 Vt. 69. 

86. —Restraint of trade. In a contract of 
copartnership for two years between A and B, 
physicians, it was agreed that if A sold out to 
B at the expiration of the term, he was not to 
" settle himself in practice" within 20 miles of 
B, and if B did not purchase of A his real es- 
\Me &c., B was not to ** settle in the practice of 
medicine and surgery " within 10 miles of A. 
Held, that this was a contract not forbidden by 
any principle of policy or law, and that an in- 
jimction lay to prevent a breach of it. Butler 
v. Burleson, 16 Vt. 176. 

87. A contract for a limited and partial re- 
straint of trade, if reasonable, and made on 
good consideration, is valid— as where the de- 
fendant, in consideration that the plaintiff, a 
dentist, would purchase of him a quantity of 
mineral teeth, agreed that he would not sell 



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such teeth to any other person in Montpelier, 
the place of the plaint ifTs residence and busi- 
nefe, so long as the plaintiff should keep him- 
self supplied therewith by purchases of the de- 
fendant. Clark V. CroHby, 37 Vt. 188. 

88. Duress. An officer having attached 
liank bills upon a suit which was afterwards 
settled, refused to surrender them to the debtor 
except upon the debtor agreeing that he might 
retain a part of them, as a pretended rewanl 
for finding them. Held, that such agreement 
was compulsory and not binding; that the 
debtor could recover for the amount so re- 
taineti ; or, upon his electing to avoid the agree- 
ment, that the officer was liable as his trustee. 
LoTfjay V. Lee, 36 Vt. 480. 

89. A person employed by another whom 
he has illegally imprisoned, to render services 
in freeing him from such imprisonment, cannot 
recover therefor. Mattocks v. Owen, 5 Vt. 
42. 

90. Where one falsely claimed that he had 
purchased certain property, knowing that he 
had not, and maliciously and without cause 
8ue<l out a writ in trover for it, for the purpose 
of frightening and causing the owner to sell it 
to him, and the owner, through fear of arrest 
and imprisonment, such as to lead a man of or- 
dinary firmness to be moved and controlled by 
it, yielded to the claim and made the sale ; — 
Held, that the sale was voW for duress. Broitn- 
eU V. TalcoU, 47 Vt. 248. 

91. The defendant gave the plaintiff a note 
for the one-half of a debt which he was not 
legally holden to pay, but which the plaintiff 
claimed and had given value for, upon the 
threat of the plaint iff that, unless this was done, 
he would collect the whole of an execution 
which he held against the defendant, as a surety 

■with others, out of the defendant's property. 
Judgment for plaintiff on the note. Held, 
that from these facts there was no legal infer- 
ence of fraud, duress or oppression ; and this 
not having been found by the county court as 
a fact, the judgment was aflh'med. Brown v. 
Tyler, 16 Vt. 22. 

92. A paj-ment by the plaintiff of the de- 
fendant's disputed counter claim and a settle- 
ment made according to the defendant's claim, 
though under protest of the plaintiff, cannot be 
said to be by duress, because, otherwise, the de- 
fendant would have been left largely in debt to 
the plaintiff. Hibbard v. Mill», 46 Vt. 243. 

93. The defendants, carriers, held the plain- 
tiff's goods, which they refused to deliver with- 
out the payment of more money than they had 
a right to demand. The plaintiff, for the sake 
of obtaining his goods, paid under protest the 
sum demanded, and without first making a ten- 
der of the sum actually due. Held, that the 
payment wan by compulsion, and that the 
plaintiff could recover back the sum wrong- 



fully demanded. Becktct'th v. FrtWe, 82 Vt. 
559. 
As to Sunday contracts, see Sunday. 

II. Interpretation. 

94. (General rules— Bight to understand. 

The language of a parly to a contract must be 
construed as the other party had a right to un- 
derstand it, or as the speaker expected the other 
party would understand it, and he cannot be 
permitted to give it a different operation in 
consequence of some mental reservation, (iun- 
nimn v. Bmwroft, 11 Vt. 490. 28 Vt. 272. 

95. It is a rule of law, no less than of mor- 
als, that what is expected by one party to a 
contract, and known to be so expected by the 
other, is to be deemed a part or condition of 
the contract. Kellogg, J., in Jordan v. Dyer, 
84 Vt. 104. 

96. Where the plaintiff asked of the defend- 
ant the extension of a license, and the defend- 
ant, not intending to accede to the request, yet 
designedly used such ** indifferent language" 
as produced upon the mind of the plaintiff the 
impression that his request was acceded to, and 
he acted under that impression ;—Held, that 
the defendant was bound to the same extent as 
if he had used express words of assent, even 
though the words used were susceptible of an 
entirely different construction. Holton v. Good- 
rich, 35 Vt. 19. 

97. Where the defendant had an account 
against one of the plaintiffs anil received goods 
of the two to apply on his account, as he un- 
derstood, but not as the other plaintiff under- 
stood ; — Held, that if from the conduct of all 
the parties he had good reason, as a prudent 
man, to understand that the goods were deliv- 
ered and received to apply on such account, 
they must be so applied. Lein'n v. Park, 47 
Vt.'886. 

98. Oontemporaneous instruments. Sev- 
eral instruments executed at the same time, be- 
tween the same parties, and upon the same 
subject matter, are to be treated as one instru- 
ment and to l>e construed together. Winy v. 
Cooper, 87 Vt. 178. Raymond v. RoherU, 2 
Aik. 204. Strong v. Barnes, 11 Vt. 221. Reed 
V. Ffeld, 15 Vt. 672. Rogers v. Bancroft, 20 
Vt. 260. Tittemore v. Vt. Mutual F. Ins. Co., 
20 Vt. 546. Graham v. Sterens, 34 Vt. 166. 

99. Nice grammar. The great object, and 
indeed the only foundation of all rules of con- 
struction of contracts [as a deed], is, to come 
at the intention of the parties. Any rule which 
leads aside from this grand object, is to be dis- 
regarded—as, a nice grammatical construction, 
&c. Gray v. Clark, 11 Vt. 588. 

100. This last is specially true, where the 
words of the instrument are obviously not those 
of a professional scrivener, but of an inexpert. 



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enced draftsman. Hood v. Johnson^ 26 Vt. 64, 
71. 

101. Apparent error. Wliere it is per- 
fectly apparent upon the face of a written in- 
strument that a mere clerical error has been 
made, and it is also apparent from the face of 
the instrument what the correction should be 
to make it as intended, the court will correct 
such error by construction. Richmond v. 

Woodard, 33 Vt. 888. Wood v. Cochrane, 89 
Vt. 544. Goodwin v. Perkins, 89 Vt. 698. 

102. Thus, in the description of land in the 
levy of an execution, the word *' northwest," 
as descriptive of a comer, was taken to mean 
** southwest." Banuird v. Russell, 19 Vt. 384. 

103. This rule applied where the name of a 
piTson was inserted in the condition of a bond 
whose name did not elsewhere appear in it, and 
was not connected with the subject matter of 
it, in place of another name which apparently 
ought to have been inserted. Richmond v. Wood- 
ard. 

104. Operattve effect. In construing a 
contract, words arc not to be taken in a frivo- 
lous or ineffectual sense, where a contrary ex- 
position can be given them; and where the 
meaning of the language used is doubtful, or 
susceptible of two senses, that is to be adopt- 
ed which will give effect to the instrument as a 
legal contract, rather than that which will ren- 
der it inoperative. Thrall v. NetteU, 19 Vt. 
203. 

105. —to every part. Agreements must 
be construed, If* possible, so as to give effect to 
every part, and form from the parts a harmoni- 
ous whole. Instance, IfffdevtUe Co. v. Ba^le 
R. A Slate Co,, 44 Vt. 895. 

106. (General words, and specific. Gen 
eral words in a contract, or conveyance, will 
be explained and controlled by more particular 
and specific words in the same instrument, re- 
garding the same subject matter. Thus a con- 
veyance was of **a certain piece of land ♦ * des- 
cribed as follows, viz : it being two hundred 
shares, numbers as follows— No. one to two 
hundred inclusive, $100 each share" — being 
stock in a manufacturing corporation. Held, 
that this was to be construed as a conveyance 
of stock, and not of land. Wheelock v. MouUon, 
15 Vt. 519. 

107. It is an ordinary rule of construction 
of writings, that where there is a special enum- 
eration of particulars, and general words are 
also used, the general words refer to (mrticulars 
of the same nature or kind as those specifically 
named. Brainerd v. Feck, 84 Vt. 496. 

108. The words— **meaning to sell all our in- 
terest in the articles of personal property of S. 
& Co.," as used in a bill of sale which com- 
menced : * 'Bought, &c., the following articles," 
and then specified the articles with the price 
of each---were held to be but words of reference, 



and not to include an article not enumerated. 
Jlickok V. Stewns, 18 Vt. 111. 

109. In a contract of sale of a patent right 
for a certain machine, it was provided, that 'if 
there should be any defect in said patent 
whereby all its privileges can not be enforceil, 
or if there shall be any other invention so near- 
ly like it as to materially affect the value of the 
same now in the patent office, or if there should 
be any oVier defect whatever, this contract to be 
void." Held, that this last general clause had 
reference to the same class of defects as before 
specified, — that they embraced defects in the 
patent only and not in the machine. Vanghan 
V. Pm-ter, 16 Vt. 366. 

110. Practical construction. Where the 
terms of a written contract are equivocal, re- 
sort may always be had to the circumstances 
under which it was executed, and the contem- 
poraneous construction given to it by the par- 
ties, as evidence by possession, or other similar 
acts, (hray v. Clark, 11 Vt. 588. 

111. The acts of parties in the execution of 
a contract are admissible, to show how the imr- 
ties understood their contract, and as a practi- 
cal construction of it. Barker v. Troy cfc R. 
R, Co., 37 Vt. 766. 

112. The rights of parties under a written 
contract, — how far determined by the practical 
construction of it by the parties, and their con- 
cessions. Jb. Thompson v. Prauty, 37 Vt. 14. 

Vt. <fc- Canada R. Co. v. Vt. Central R. Co., 34 
Vt. 3. 

113. Instances of interpretation. The 
literal Import of the words of a contract— "I 
agree to pay, &c.," — was held to be controlled 
by the subject matter and the relations of the 
parties, and to l»e the contract of a firm of 
which the plaintiff and defendant were mem- 
bers, and not the individual undertaking of the 
defendant to the plaintiff. HiUs v. Bailey, 27 
Vt. 548. 

114. Bill of sale given as seciuity for a debt, 
—interpreted by reference to its purpose. 
Durkee v. LeUind, 4 Vt. 612. 

115. An ambiguous written contract, — doubt- 
ingly construed. Foot v. MaxJiams, 9 Vt. 223. 

116. A, by deed, granted to B the right of 
procuring marble from A*s land. Held, that A 
had no right to the small pieces of marble brok- 
en off in reducing the blocks to size and shape 
for sawing. Rice v. Ferris, 2 Vt. 62. 

117. Particular terms. Certain stoves, 
delivered upon a contract payable in "goml 
cooking stoves at the furnace price " (the ven- 
dor not being a manufacturer), fell to piect»8 on 
putting fire in them, from some latent defect. 
Held, that the words did not amount to a war- 
ranty of quality, and that no warranty was im- 
plied ;— that no definite quality can be intended 
by the term good, and that the language imports 
nothing but opinion. Barrett v. HaU^ 1 Aik. 369. 



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118. On a sale of pork, with a stipulation 
that the seller should be '^accountable for the 
qimlity and weight of the pork only ;" — Held^ 
tiiat he was accountable if the pork was not 
salted according to the usual custom. Adams 
V. Simple, Brayt. 237. 

119. Where a party binds himself ''to exe- 
cute and deliver a good and valid deed of lands, 
with the usual covenants of seisin and war- 
ranty/* and he afterwards conveys the title 
which he had to another, he has broken his con- 
tract and the other party may soe for the breach, 
or may treat the contract as rescinded. Stow 
V. Steren*, 7 Vt. 27. 

120. The words, ''shall make and well exe- 
cute a good, authentic deed," relate merely to 
the validity and sufficiency of the deed, in point 
of law, to convey whatever right the grantor 
then had in the premises, and do not refer to 
the title to be conveyed. Preston v. Whif4;omb, 
11 Vt. 47. Redpld, J., dissenting. 

121. The words, "to give a good warranty 
deetl," are descriptive of the kind of deed to be 
given, and not of the title, and are satisfied by 
the giving of such a deed, though there Ik? an 
outstanding mortgage. Joalyn v. Taylor, 33 
Vt. 470. 

122. But a contract "to convey by a deed 
of conveyance a tract of land," is a contract 
not merely to gire a deed, but to convey the land 
and give title. Ixiitrene^e v. Dole, 11 Vt. 549. 
33 Vt. 474. 

123. An attorney agreed not to charge his 
client for any costs, except ofllcer*s fees on 
uncoUeeted demands. One demand was satis- 
fied by a levy upon lands. Held, that this was 
a demand collected; and as the whole pay, in- 
eluding the costs, had gone to the client, he 
must pay such costs to the attorney. Davis v. 
DMtner, 10 Vt. 529. 

124. The defendant induced the plaintiff to 
take in trade a note which he represented to be 
"perfectly good." Held, that this was tanta- 
mount to saying that the maker was amply re- 
sponsible. Weeks V. Benton, 7 Vt. 67. 

125. Ch. 34 of the acts of 1824 enacted, that 
"the standard weight of rye and Indian com 
shall be fifty-six pounds, nett, to the bushel." 
Held, that this defined the import of the term 
in»hel; and that a contract for the delivery of 
100 "bualiels" of corn was satisfied by the de- 
livery of 56 hundred pounds of com, though 
measuring less than 100 Winchester bushels. 
HiehardMm v. Spafford, 13 Vt. 245. 

126. A contract to pay "in hmther** implies 
that it shall be of merchantable quality. If 
condemned and stamped by the leather seal er 
M "Aarf," this is evidence that it was not such 
as to satisfy the contract. EUdm v. Park/mmt, 
17 Vt. 105. 

127. An agreement being that a lessee should 
give "suflScient" security for the rent •,—Held, 



that if the security offered was in fact adequate, 
it might be either personal or real security ; and 
that it was no legal objection to the real securi- 
ty offered, that there was a previous mortgage 
upon it. Ha/rd v. Broxtn, 18 Vt. 87. 

128. In the sale of lamp oil the warranty 
was, that the oil should "stand the climate of 
Vermont without chilling." Held, that the prop- 
er constniction of the warranty was, that the 
oil would not chill when employed in Vermont 
in any of the ordinary uses in which lamp oil 
is employed, and in the manner in which, in 
business, lamp oil is required to lie used. Hart 
V. Hammett, 18 Vt. 127. 

129. A contract for the delivery of " good 
coarse salt" is answered by the delivery of coarse 
salt, as good, in fact, and not in reputation 
merely, for all the uses to which salt is ordina- 
rily applied, as a medium of the kinds of coarse 
salt then known and used in the vicinity. If 
inferior in kind, or not a go<Kl article of the 
kind, the contract is not answered. Ootut v. 
Tvmer, 21 Vt. 437. 

130. A note payable in "half-blooded merino 
wool," is not answered b}' the delivery of wool 
of which a part does not fairly and reasonably 
answer the quality and fineness of half-blooded 
merino, and of an ^ual amount of finer and 
better quality, so as to make the averse equal 
to half-blooded merino. All the wool nmst be 
of the quality contracted to be paid. Perry v. 
Smith, 22 Vt. 301. 

131. An order drawn for "37.89" was^^W 
to l>e intelligible and to express the currency of 
the U. S. dollars and cents. Northrop v. San- 
born, 22 Vt. 433. 

132. The plaintiff contracted to do certain 
work, " rip-rap, at 50 cents per cubic yard." 
In the absence of proof of any general usage or 
unifora: custom to determine the mode of meas- 
urement ; — Held, that the measurement of the 
work should be of the stone as fitted and laid 
into the wall— the rip-rap wall— and not the 
excavation, or stone l>efore being broken. Wood 
V. Vt. Central H, Co., 24 Vt. 608. 

133. In a written contract for finishing a 
house, the stipulation was: "The work to l)e 
done in the l>est style and design of the present 
time, and adapted to such a hou»(^ and its several 
parts, and in as good a style, and workmanship, 
and finish, as any in Burlington, Vt." Held, 
that this limited the expenniveness of the styles, 
designs, or patterns, of the finish to the 8tyle,and 
workmanship, and finish of tin; Ix'St houses in 
Burlington. Herrick v. Noble, 27 Vt. 1. 

134. A conveyance of "all one's personal 
property of every name and nature," was held to 
convey the gnmtor*s choses in action. Sherman 
V. Dodge, 28 Vt. 26. 

135. The plaintiff contracted with the de- 
fendant to manufacture for him 100 straw-cut- 
terQ^— the defendant " to furnish the castings." 



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Held, that the defendant was bound to furnisli 
tlie iron castings finished and fitted to tlie use 
intended, and not simply as the}^ came from the 
foundry. AUen v. ThraU, 36 Vt. 711. 

136. The plaintiff's son conducted the busi- 
ness of a small store of the plaintiff, under an 
j^reement that the son should have a * 'support" 
for himself and family out of the business. 
Both took goods from the store as they wanted 
for family use, and no account was kept of 
them. While the son was thus in the store, 
the defendant, a physician, doctored the son's 
wife, under an agreement with him that the de- 
fendant would take his pay therefor out of the 
store, and goods were so delivered from time 
to time as the services were rendered. These 
services were necessary, and the son had no 
means of payment except ^rom the store. The 
goods were charged on the store books, and, 
two or three days after the son left the store, 
h^ credited the defendant for his services, on 
the books. The plaintiff erased the credit and 
brought suit for the goods. Heldj that he could 
not recover ;— that the defendant's services fell 
under the denomination oimipport of the family, 
&c. Marne v. PairerH, 45 Vt. 300. 

137. The defendant had contracted to do a 
certain job of work for a third person by a cer- 
tain time, to Ikj paid for *'*when completed." 
He stated over this contract to the plaintiff, and 
purchased goods of him, to ha paid for when 
the defendant should complete the job and get 
his jmy. Held, that the plaintiff was entitled to 
sue for the gotxls, whenever the time had elaps- 
ed in which the job was, by the contract, to be 
completed and paid for, though not then com- 
pleted, nor paid for. Bmia v. Mason, 4 Vt. 
868. 

138. The defendant's agreement to give a 
note, *'to be approved" by the plaintiff, was 
held to mean a note with a surety, or some 
security beyond that of the defendant alone. 
Hale V. Joruit, 48 Vt. 227. 

139. Other instances. The defendant gave 
C a bond conditioned to support him during 
his natural life, and [or] to furnish him food, 
apparel, &c., until the sum of $1,700, received 
of (J, and the interest accruing thereon, sli6uld 
be so expended. C died before the full expend- 
iture of the $1,700. Held, by construing 
several instruments together, that the condition 
of the bond was fully performed, and that the 
defendant was not liable to ("s administrator 
for the unexpended balance. Watthbuni v. 
Titus, 10 Vt. 306. 

140. Sept. 30, 1839, the defendant leased to 
the plaintiff certain lands for the life of the de- 
fendant, with a proviso that if the defendant 
should sell the premises, the lease should be 
void from and after the first day of October 
next after the sale, — the plaintiff covenanting 
to pay $130 on the day of the date of the lease 



$180 Oct. 1, 1841, and a like sum annually 
thereafter, and to surrender possession on the 
first day of October after the sale. The plain- 
tiff, on the day of the execution of the lease, 
paid the $130, and afterwards, on the same 
day, the defendant conveyed the premises to 
a third person who took possession, and the 
plaintiff never went into possession. Held, 
that the $130 paid was the compensation for 
the first year's enjoyment, paid in advance, and 
that the plaintiff could recover the same, in an 
action for money liad and received, as for a 
failure of consideration. Wetks v. HunU 13 
Vt. 144. 

141. Under an agreement between tenants 
in common of a mill, that each should occupy 
in severalty for certain successive periods of 
time^ and that each should make all repairs up- 
on the mill necessary to be made during his 
term of occupancy, not exceeding three dollars 
in amount, and that all repairs exceeding that 
amount should In? at their joint expense, in 
pniportion to their respective interests in the 
mill ',—Held, that all necessary' repairs made at 
any one Uine, not exceeding three dollars in 
amount, were to be at the sole expense of the 
tenant then occupying ; but if the repairs made 
at one, ti^ne exceeded three dollars, then the 
whole sum was to be a joint charge. Kidder v. 
Rixfin-d, 16 Vt. 169. 

142. In March, 1846, by written contract, 
the plaintiff bargained to purchase of the de- 
fendant, at a certain price per thousand feet, a 
quantity of timber then lying on the banks of a 
river, which the parties e xpected could be float- 
ed off to market by the rise of water of that 
spring— the quantity to be ascertained by the 
survey of certain persons agreed upon : and, as 
soon as surveyed, the plaintiff to furnish the 
defendant *'a promissory note of hand," sign- 
ed, &c., for the amount, &c., payable one-half 
by July 15, next, and one-half by Oct. 15, next 
—with interest after July 15, next ; said notes 
to be payable at some bank in Boston, if the de- 
fendant desires. It was further agreed, that if the 
timber could not l>e got afloat that spring, &c., 
the defendant was to delay payment and inter- 
est until after it could be got afloat. After the 
measurement and ascertaining the price, the 
plaintiff offered to execute* the notes therefor, 
embodying therein the conditions of the con- 
tract as to delay of payment and interest, but 
refused to execute unconditional, negotiable 
notes payable in Boston, as the defendant re- 
quired. Held, that the plaintiff was bound by 
the contract to furnish notes absolute and nego- 
tiable, payable by the days named in the con- 
tract, and that for want of performance on his 
part he could not maintain trover against the 
defendant for his appropriation of the timber. 
ScoU V. Morse, 22 Vt. 466. 

143. F and H entered into a written con 



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tract, signed by both, as follows: "In consid- 
eration of 36 shares in the Vermont Central Rail- 
road Co., to be delivered to me by F, on or be- 
fore the first day of July next, 1 do hereby agree 
to sell to said F fty twelve shares in the £a8t 
Bethel Factory," &c. In an action by F against 
11 for his refusal to convey the factory stock , 
&c. ; — Ileldy that this was not a mere giving of 
a ** refusal" of the factory stock, &c. ; that 
the contract was on good consideration, and 
brmnd the plaintiff to convey the railroad stock, 
and the defendant the factory stock, &c. Faulk- 
ner V. Hebard, 26 Vt. 452. 

144. The defendant, in consideration of 
$500 paid him by the plaintiff, agreed to go to 
California and labor there until 1851, and as 
much of that year as could be used and give 
him reasonable time to reach home by the first 
of Deceml)er of that year, and Viere equally di- 
vide with the plaintiff the entire avails of the 
expedition. Held, that this contract did not 
entitle the defendant to 'retain from the avails 
the expenses of his journey home, where he 
prolonged his stay until after December Ist; 
but that the time to which he was bound to 
make a division of his earnings, was only such 
a time previous to Deceml)er 1st as would afford 
him reasonable time thereafter to reach home 
by that day. Thomptton v. Prmtty, 27 Vt. 14. 

145. The parties had entered into a written 
contract for the sale of a farm, with other stipu- 
lations as to the fodder, &c., which writing was 
left with the plaintiff, and he lost it. Upon 
completing the trade and deeding the farm, the 
parties disagreed as to the terms of the writing, 
when the plaintiff before delivering the land 
gave the defendant another writing, agreeing to 
produce the lost writing, or to take the defend- 
ant's recollection and construction of it. On 
trial of an action involving the terms of the 
first writing, the plaintiff could not produce it, 
and the parties disagreed in their testimony as 
to its terms. Held, that the defendant's recol- 
lection and constiuction shi.uld be taken, for it 
was so agreed. CarpinUr v. French, 28 Vt. 
796. 

146. A contract for drawing timlwr and 
loading it upon railroad cars provided, that 
"the whole job shall be finished by the 15th 
day of March next; the timber to be loaded on 
the ears at such time as the said S (the defend- 
ant) shall direct after said timber shall be 
drawn, provided the cars shall be furnished by 
the railroad company." The defendant tried 
but failed to get cars from the railroad com- 
pany until after March 15th. Held, that the 
ttue meaning of the contract was, that the 
drawing and earring of the timber sliould be 
fully completed on the 15th of March, and that 
the plaintiff (the contractor) was not bound 
after that to load the timber. ChamberUn v. 
BwU, 38 Vt. 80. 



147. In a contract for the furnishing of a 
monument [as by a parent for a deceased child], 
the directions given as to quality, inscription, 
&c., should, for special reasons, l\e literally and 
exactly followed. Vtall v. Hubbard, 37 Vt. 
114. 

148. By the contract the plaintiff was to 
furnish for the defendant a monument of "good 
white marble," with the name "Octavia Jane" 
inscribed upon the shield. lie did furnish a 
monument of which the material was *'good 
white marble," but it had a discoloration or 
stain on it, across which a part of the inscrip- 
tion was wrought, which stain had gotten upon 
it by some accident, was temporary, and by 
lapse of time and exposure to the open air and 
frost would disappear, llie name inscribed 
upon the shield was *'Octavia J.," because 
there was not room to insert the full name 
upon the shield without putting one name above 
the other, and the plaintiff in good faith be- 
lieved it would look better and be more satis- 
factory to inscrilK? it as he did. Held, that each 
of these was a substantial defect ; that the con- 
tract was not complied with, and the defend- 
ant not bound to receive the monument. Tb. 

149. The plaintiffs purchased of one Rey- 
nolds a canal boat, taking a bill of sale thereof, 
with this stipulation added : *'I further agree 
that there is no incumbrance on said lioat, ex- 
cept what is held by P. E. Haven, and about ^^25 
to William Cain on her sails ; and I agree to pay 
said Cain and clear said sails from said Cain's in- 
cumbrance as soon as practicable " ; and at the 
same time the defendant wrote and signed upon 
the back of the instrument the following : **I 
guarantee that said Reynolds shall clear said 
canal boat from said William Cain's claim on 
said sails as he has within agreed." All parties 
supposed at the time that Cain's claim was but 
!|«25. It was in fact ^70, and was a lien and 
charge as well on the boat as the sails. In an 
action upon the guaranty ;—//.? W, that the 
words "about .^25" were words of description 
to identify the claim and not of limitation, and 
that the guaranty bound the defendant to pay 
the whole of Cain's claim, which was a charge 
upon the sails, although it was at the same time 
a charge upon the boat. Brmcn v. Haven, 37 
Vt. 439. 

150. The plaintiff contracted to furnish 
lumber for the building of the defendant's 
house, as fast as the builders should want it. 
The plaintiff was dependent upon the mills in 
the vicinity for the supply of the lumlHT prom- 
ised, and this was understoml (J. «., expected) 
by both parties at the time of the contract. 
From a failure of the mills through a 
drought, the plaintiff was unable to procure 
the lumlH^r from the mills as fast as wanted by 
the builders. Held, that as the plaintiff was 
not limited by the contract to the product of 



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these mills, his contract was broken. Eddy v. 
Clement, 38 Vt. 486. 

151. In a contract of sale by Mrs. Strong of 
standing timlxr and wood was this provision : 
** Said timber land is situated on the easterly 
part of Mrs. Strong's Bald Mountain lot, so- 
called ; and said Davis is to cut and draw the 
same in and by the Slst of May, 1861, and to 
cut and pile the brush in a reasonable and pru- 
dent manner : said Davis to have the right of 
way through Mrs. Strong's said land on Bald 
Mountain for this purpose, and to prepare and 
make a road thereon." Held, that under this 
contract Davis, in order to perfect his title, 
was bound to draw the wood and timlxjr, not 
merely from the particular locality on which it 
was cut, but to remove it entirely from the 
Bald Mountain lot, within the time specified ; 
and that <iuch timber as was removed from the 
place where cut down into a pasture on Mrs. 
Strong's Bald Mountain lot, and there left until 
after the expiration of the time named, was her 
property. Strong v. Eddy, 40 Vt. 547. 

152. The defendant took a patent sugar 
evaporator of the plaintiff on trial;— if he 
'* liked it" he was to pay for it; if he did not 
*'like it" the plaintiff was to take it back. 
Held, that the d<»fendant was required to bring 
to the trial of the article honesty of purpose 
and judgment according to his capacity, to 
ascertain his own wishes; and that this was 
sufficient, though falling short of the care and 
skill of ordinary persons in making such de- 
termination. Hartford, dr., Co. v. Bni^h, 43 
Vt. 528. 

153. The plaintiff effected a sale of real 
estate for the defendant, for an agreed percent- 
age upon the price to be obtained on the sale. 
He sold the property for |?22,000, and took in 
part payment certain other lots at the price of 
#7,325, with consent of the defendant, which 
lots were actuall}' worth, as found by the audit- 
or, but 514,220. On the question whether the 
plaintiff was entitled to the agreed \)ercentage 
upon the whole sum of f 22,000 :—Held, that 
the percentage was to be computed upon the 
real, and not a fictitious, price of the property 
sold ; but if the parties to the contract, or the 
plaintiff and defendant, judged the lots taken 
in payment to be worth the price at which they 
were taken, the price was not fictitious ; and 
the mere fact that they were worth less, in the 
absence of any finding that the parties judged 
them tol)e worth less, could not have the effect to 
diminish the plaintiff's commissions. Wakefield 
V. Mem'ek, 38 Vt. 82. 

154. Construction of a particular contract 
for the delivery of marble at a certain price per 
cubic foot, but varialile in future years accord- 
ing to certain yearly price-lists of the trade. 
Parkir v. Adams, 47 Vt. 189. 

155. Usage. The usage of business in the 



vicinity may be received in evidence, to show 
where the liability of a common carrier, or 
wharfinger, commences, and where it ceases. 
BUn V. Mayo, 10 Vt. 56. Farm. & Meeh. Bank 
V. CliampUiin Tr. Co., 16 Vt. 52, 62. S. C, 
18 Vt. 131. 28 Vt. 186. 

156. Tlie defendants, common carriers on 
Lake Champlain, received of the plaintiff a 
package of bank bills to carry from Burlington 
to Plattaburgh, directed to the cashier of the 
bank at Plattsburgh, and delivered the same to 
the wharfinger of the wharf at Plattsburgh (at 
which their boat touched), to carry to the bank. 
The package was stolen from the wharfinger 
and never reached the bank. In an action 
against the defendants as common carriers ; — 
Held, that it was competent for the defendants 
to prove that it was the uniform usage of the 
defendants' business, in such cases, to deliver 
such packages to the wharfinger for him to 
carrj" to the bank, without their giving any no- 
tice to the consignee,— and that this us^e was 
well known to the plaintiffs. Farm. & Mech. 
Bank v. Champlam Tr. Co.,\^ Vt. 52. 

157. Held, that evidence of such usage was 
admissible in defense, although not known to 
the plaintiffs. 8. C, 18 Vt. 131. Bennett, J., 
dissenting. 

158. Under a contract for the building of 
railroad bridges, which was silent as to the 
time and place of payment ',—Held, that the 
usage of the company, to pay monthly on the 
estimates, having been adopted in reference to 
the contractors, this usage became the rule of 
payment binding upon the parties by mutual 
consent. Boody v. But. <C- Bur. B. Co. (U. S. 
C. C), 24 Vt. 660. 

159. The words on a merchant's bill of sale 
of merchandise, **six per cent off for cash," 
were held so equivocal, as to allow proof of 
how those words, as so used, were understood 
by usage of the trade ;— as meaning a sale upon 
six months' credit. Linttley v. Lovely, 26 Vt. 
123. 

160. The particular usage of the defendant 
to deduct, from the weight of iron he purchased, 
so much as, on trial, was found unsuitable for 
use, was held not to avail him in an action for 
the price, where it did not appear that the 
plaintiff had knowledge of such usage, and no 
such general usage was shown. Stevens v. 
Smith, 21 Vt. 90. 

161. A sale ** for cash " implies that there is 
no term of credit, and any pretence of usage or 
custom to call a sale on 30 days' indulgence, or 
other term of time, a sale for cash, or without 
credit, is absurd. Chapman v. Heoereux, 32 
Vt. 616. Blitm V. Arnold, 8 Vt. 252. CatUn v. 
Smith, 24 Vt. 86. Jachmi v. BimmetU, 24 Vt. 
611. 

162. Law of place. It is a well settled 
rule in regard to the construction of contracts, 



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that their validity and extension, as well as per- 
formance or release, must be determined by the 
law of the place of contract ; while the mode of 
trial, by which is meant the form of pleading, 
the quality and degree of evidence, and the mode 
of redress, must always be determined by the 
law of the place of trial. Harrimm v. Edwards^ 
13 Vt. 648. 26 Vt. 704. 

163. — 841 to interest. All the incidents per- 
taining to the validity and construction, and es- 
pecially to the discharge, performance or satis- 
faction of contracts, and the rule of damages 
for failure to perform will be governed by the 
lex loci eontraetus^ which is, generally, the place 
of performance. This governs the rate of inter- 
eat, whether stipulated, or given by way of dam- 
ages. Peck V. Maifo, 14 Vt. 38. 

164. —rate of exchange. Upon notes and 
drafts drawn in this State and payable in New 
York, the current rate of exchange, as custom- 
ary and legal in that State, was allowed in mak- 
ing up the judgment. Fannert^ Bank v. Bur- 
chord, 33 Vt. 346. 

165. — partnership. The extent of the pow- 
ers of a copartnership or of one of its members 
to bind the firm, and the liability of the mem- 
bers must be determined by the law of the place 
where it was formed and had its place of busi- 
ness, although the transaction in question was 
had in another State. Cutler \.*l'h<mi(ut, 25 Vt. 
73. HfUAingi v. Hopkinrnti, 28 Vt. 108. 

166. Other instances. The parties being 
residents of Lower Canada, the defendant con- 
veyed to the plaintiff land there situate *'in 
payment " of his certain notes to the plaintiff, 
the plaintiff agreeing in writing to re-deed upon 
the payment of the sum then due on the notes, 
with interest thereon, at the end of two years,— 
the plaintiff retaining the notes and the defend- 
ant remaining in possession of the land. In an 
action in this State upon one of the notes ;— 
Held, that the law of Canada must govern, and 
that by that law the deed would be treated as 
an absolute conveyance in payment of the debt, 
with right of repurchase.— Some account given 
of Canadian law. Boitter v. Willej/, 9 Vt. 276. 

167. The defendant, resident in this State, 
by letter to the plaintiff, resident in Rhode 
Island, ordered, as a purchaser, lottery tickets 
to be sent him by mail for sale in this State. 
The sale of such tickets was lawful in Rhode 
Island, but was prohibited by statute of this 
State. The plaintiff was ignorant of such pro- 
hibition. Held, that the plaintiff could recover 
the price of the tickets. Com v. HikeTy 10 Vt 
482. 

168. In an action by a resident of this State 
against a railway company, for neglect in sea- 
sonably forwarding, from this State into Massa- 
chusetts, slaughtered calves less than four weeks 
dd, whereby the meat became damaged ; 
Held to be no defense, that the sale of such ar- 

1 



tides was a violation of a sanitary statute of 
that State, there being no evidence or presump- 
tion that the plaintiff had knowledge of such 
statute ;— that such fact affected only the ques- 
tion of damages, so far as it went to diminish 
the actual or salable value of the property. 
Mann v. Birchard, 40 Vt. 326i 

169. Oonditions—Fiill performance. The 
defendant agreed to share in the expenses of a 
pending suit, if the case should pass to and be 
tried in the higher Court. The case did not pass 
to the higher court, for the reason that the 
judgment in the lower court was necessarily 
final. Held, that the condition precedent had 
failed, and the defendant was not liable. Pen- 
field V. Fillmore, Brayt. 43. 

170. The plaintiff contracted with the de- 
fendant to lay certain floors of a building, — the 
boards to be furnished by the defendant,— and 
worked for a time, and then abandoned the job 
for the reason that the defendant failed to furn- 
ish the boards when needed. Held, that the 
furnishing of the boards was a condition prece- 
dent to the performance on the part of the plain- 
tiff ; that, as the defendant had equal means of 
knowing when the boards would be needed, no 
special demand was necessary ; and that the 
plaintiff could recover for the work done. Hill 
V. //(wey, 26 Vt. 109. 

171. Although a contract is in one sense en- 
tire — that is, full performance by the promis- 
sor is the consideration of the contract— yet, if 
it contains neither expressly nor by strong im- 
plication, a condition of full performance prece- 
dent to any right of claim for pay, and is of a 
uniform nature and thus capable of just appor- 
tionment, the court will consider the promises 
independent and apportionable, and allow a re- 
covery for part performance, subject to the de- 
duction of whatever damages the party entitled 
to claim full performance may have sustained. 
The opposite rule, of forfeiture of all claim 
of payment for want of full performance, 
has not in this State been extended to any class 
of contracts except that of persons hired for a 
definite term. Redfield, J., in Booth v. Tyson, 
15Vt. 515. 

172. Where from the nature of the transac- 
tion, forbearance to do a certain act, on the one 
part, is necessary in order to render performance 
of a stipulation, on the other part, of any avail, 
such forbearance though not expressly men- 
tioned must be considered a condition prece- 
dent. Wier V. Church, N. Chip. 95. 

173. Where the plaintiff sold the defendant 
property to be paid for in sawing at the defend- 
ant's mill ;—Held, that the plaintiff could not 
recover without first affording the defendant 
an opportunity to perform his contract, by 
drawing the logs to the mill, — the defendant 
not having refused to perform it. Downer v. 

1 FriaU, 10 Vt. 541. 

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174. Where by the contract payment was to 
be made in leather, such as the plaintiff should 
select at a tannery specified, but no definite 
time for such payment was stipulated; — Held^ 
that a demand, with a designation of the kind 
of leather selected by the plaintiff, was an in- 
dispensable pre-requisite to a right of action. 
Had the contract fixed a time of payment, the 
case might have been different. HuMell v. 
Ormsbee, 10 Vt. 274. See Peck v. Hubbard, 11 
Vt. 612. 

175. Under a contract, whose consideration 
was executory, that the defendant would get 
and deliver, during a period named and at a 
specified price per thousand feet, a certain 
amount of spruce lumber, "the lumber to be 
sawed into boards and tueh timber as said W 
[the plaintiff] may order, not over 20 feet [in 
length]" ; — Held, that the plaintiff, not having 
given notice of what kind of lumber and what 
quantity of each he required under the contract, 
could not recover for a non-delivery. . By 
PrautyJ, — If this were an obligation for the pay- 
ment of a debty as in Peck v. Hubbard, the case 
might be different. Welch w. Bradley, 41 Vt. 308. 

176. A provision in a contract for work, 
that no claim shall be made or allowed for extra 
work, ** unless the same shall have been done in 
pursuance of written contracts or orders signed 
by the engineer," and that claims therefor shall 
be presented for settlement within a given time, 
will bar a recovery for extra work, unless 
such provisions be complied with. Vatider' 
werker v. Vt, Central R. Co. 27 Vt. 130. 

177. A contracted with B to furnish materi- 
als and repair a house for B, and complete the 
whole by a day named, and B agreed to pay a 
certain sum therefor "when the job is complet 
ed." A partially performed, when he was sued 
and B was summoned as his trustee, where 
upon A abandoned the work without fault of 
B, and against his consent. Held, that the con- 
tract was entire, full performance by A being a 
condition precedent to the payment ; and that 
as A could not recover a pro rata compensation 
for the work done, B was npt liable as trustee. 
Kettle V. Harvey, 21 Vt. 301. 24 Vt. 515. 33 
Vt. 89. 

178. Where the plaintiff under a contract 
delivered to the defendant palm-leaf to be manu- 
factured into hats of a specific description, 
which the plaintiff agreed to receive at a cer- 
tain price per dozen; — Held, in an action on 
book to recover the price of the palm-leaf, and 
certain cash advanced, that the plaintiff was 
not obliged to receive a less quantity of hats 
than was stipulated in the contract, nor to 
select, out of a larger number, sufiScient at the 
stipulated prices to pay for the cash and palm- 
leaf delivered. Rogers v. Miller, 15 Vt. 431. 

179. The plaintiff agreed to let the defend- 
ant put 100 sheep into his pasture, for the season, 



at 50 cts per head, and if his pasture should 
prove insufl^cient he would arrange with his 
father to open his pasture to the sheep. The 
defendant was to have the oversight and care 
of the sheep. The plaintiff did every thing he 
agreed to do. The pastures were not sufficient 
to keep the sheep well, and for this reason the 
sheep were lessened in value more than the 
price stipulated. The defendant took away the 
sheep, for this reason, before the season of pas- 
turing was ended. Held, that the plaintiff could 
recover the full contract price, having fully 
performed his contract. Cheslry v. Mattkewton, 
40 Vt. 197. 

180. Where the defendant contracted to de- 
liver thirty tons of starch per year for two 
years ;—Held, that an action lay, after the ex- 
piration of the first year, for a breach of that 
part of the contract which was to be performed 
during the first year. Mixer v. WilUamn, 17 
Vt. 457. 

181. The plaintiff voluntarily, and without 
cause, abandoned his contract to build a house 
for the defendant, and refused to finish it, but 
sued to recover the contract price. The cause 
being referred, the defendant presented in off- 
set his claim for labor and expense in complet- 
ing the job and for other damages for non-com- 
pletion by the plaintiff, all which the referee al- 
lowed, and allowed to the plaintiff the balance 
of the whole contract price. Held correct, for 
that thereby the defendant received an equiva- 
lent for full performance,— although, probably, 
the plaintiff could not have recovered any thing 
had the defendant done nothing more witli him 
about it. Austin v. Austin, 47 Vt. 811. 

182. A contract to deliver 100 cords of 
wood at $4.75 a cord, by a day named, was 
held to be entire and not divisible, and that 
payment was not demandable for the wood as 
delivered from time to time, but only on full 
delivery. Bra/ndon Mfg. Co. v. Morse, 48 Vt. 
322. 

183. —dependent, or independent. 
Where there are mutual and divers covenants 
between parties, to be performed alternately, 
or at different times, they are considered inde- 
pendent, and the plaintiff need not aver per- 
formance on his part; otherwise, if all the 
plaintiff's covenants were to have been per- 
formed before performance by the defendant. 
Gallup V. Bumell, Brayt. 191. 

184. Where parties are to perform concur- 
rent acts, and the plaintiff's act forms the basis 
or consideration of the defendant's act, the de- 
fendant may always excuse himself from per- 
formance by the failure of the plaintiff. Iawd- 
rence v. Dole, 11 Vt. 549. But where the de- 
fendant's act rests upon an independent consid- 
eration, he cannot excuse himself by showing a 
failure of the plaintiff to perform. Day y. Essex 
Co, Bank, 18 Vt. 97. 



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185. In the case of a mutual contract, where 
the one promise is the entire consideration of 
the other, and the acts to be performed are con- 
current — as for a sale or exchange of property 
on each side— neither party is obliged to convey 
absolutely, if the other declines conveying on 
bis part ; but the party claiming damages for 
breach of the contract must show, either a 
readiness and offer to perform on his part, or 
else that he was excused therefrom by the con- 
sent or conduct of the other party ; and this 
will be sufficient. Faulkner v. Heba/rd, 26 Vt. 
452. 

186. Courts will never construe a contract 
so as to make its stipulations conditions prece- 
dent, where such construction would work a 
hardship, unless clearly so expressed ; but will 
rather construe such stipulations as indepen- 
dent agreements. Taylor v. Gallup, 8 Vt. 
340. 

187. Where A by his bond covenanted to 
pay B a certain account, the amount to be set- 
tied and adjusted by C, and to be paid in one 
y^ar from the date of the bond ; — Held^ that it 
was not a condition precedent that B should 
procure the adjustment by C within the year, 
but if so adjusted after the expiration of the 
year, but before suit brought, an action would 
lie upon the bond. lb, 

18j3. The plaintiff held and claimed to be 
owner of a note made by the defendant, and 
payable to A or bearer, and had a suit pending 
thereon against the defendant. The defendant 
held a note against A. The plaintiff promised 
the defendant that if he would give a new note 
for the one in suit he (the plaintiff) would 
show the defendant property of A sufficient to 
satisfy the M>te against A. Thereupon the de- 
fendant gave the plaintiff a new note for the 
one in suit, and the suit was dropped. In an 
action upon the new note ; — Held, that the fail- 
ure of the plaintiff to show the defendant prop- 
erty of A whereon to secure the note against 
A, was no defense ; that the surrender of -the 
former note and the settlement of the suit was 
a sufficient consideration for the new note ; that 
the note and the undertaking of the plaintiff, 
although mutual, were independent contracts 
or promises, and that each party had a remedy 
on the promise in his favor, without perform- 
ing his part of the contract. Plumb v. Jfile$, 
84 Vt. 230. 

189. The defendant contracted to convey on 
his tKiat two loads of wood for the plaintiff to 
Port Henry, at a specified price per cord ; and 
it was agreed that if the defendant could not 
get out of the creek, where the wood lay, with 
a full load, the plaintiff was to complete the 
k)ad at a certain wharf. Heldj that the failure 
of the plaintiff to complete the first load at the 
wharf, whereby the defendant was compelled 
to sail to Port Henry with only two-thirds of a 



load, did not absolve the defendant from his 
obligation to go after the second load, but that 
he should have done all in his power to i)erform 
the full contract on his part, and if the plaintiff 
failed on his part, the defendant would have 
his remedy in damages. (1.) The plaintiff's en- 
gagement did not go to the whole consideration 
or matter to be done by the defendant. (2), 
The plaintiff's performance in regard to each 
load was to be subsequent in time to that of 
t^e defendant, and hence could not be a con- 
dition precedent, to the defendant's liability. 
Keenan v. Brottn, 21 Vt. 86. 

190. Under an agreement to account for 
certain notes after certain costs of a suit were 
paid, it was A^W, that payment of the costs was 
not a condition precedent to the maintenance 
of an action for an account, but that the agree- 
ment only gave an authority to retain to an 
amount equal to such costs, or to adjust the 
amount in the action. Woodward v. Harlow^ 
28 Vt. 388. 

191. An action will lie upon a note payable 
at a fixed time in specific articles "to be deliver- 
ed at any place in L where the payee should 
elect," without averring or proving any election 
of the place of delivery. This election is not a 
condition precedent, but a mere privilege, 
which is waived by not being seasonably made, 
and passes the election to the maker, who in 
such case could elect his own place of pajrment 
[in L] and notify the payee, and a tender at 
such place would be good. Peek v. Hubbard, 
11 Vt. 612. See Bu4isel v. Ormsbee, 10 Vt. 274. 
Welch V. Bradley, 41 Vt. 309. 

192. The dependence or independence of 
covenants depends upon the good sense and 
meaning of the contract, and their precedency 
upon the order of time in which the intent 
of the transaction requires their performance, 
rather than from the arrangement of the coven- 
ants, or the structure of the instrument. Kettle 
V. Harvey, 21 Vt. 801. 

193. The defendant made an assignment to 
the plaintiff, absolute in terms, of a lease, and 
at the same time gave a separate writing agree- 
ing to surrender possession by a future day 
named, and the plaintiff at the same time gave 
the defendant a writir/g agreeing to pay certain 
arrearages of rent then due to the lessor, and a 
further sum at a future day named. The plain- 
tiff neglected to make the stipulated payments, 
and the defendant refused to surrender posses- 
sion by the time fixed. Held, that the defend- 
ant was liable in ejectment ; — that the lease was 
a contract executed, and not dependent upon 
the contemporaneous executory agreement as to 
payment. Strong v. Oa/rfield, 10 Vt. 497. 

194. The defendant had attached the plain- 
tiff's property upon a writ against a third per- 
son, and the plaintiff had sued the attaching 
officer therefor. The parties then entered into 



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mutual covenants, that the plaintiff should dis- 
continue his suit, and, in consideration thereof, 
that the defendant should pay the plaintiff the 
full value of the property attached, to be ap- 
praised by certain persons named, by a day 
named. The plaintiff discontinued his suit, and 
the defendant then prevented the making of the 
appraisal. Held^ that the covenants were not 
dependent upon the appraisal to be made ; that 
this was but an incidental provision in the agree- 
ment, designed to facilitate its execution on the 
part of the defendant; and that the plaintiff 
could sue and recover upon the defendant's 
covenant to pay, and make proof in court of the 
value of the property. Smith v. Edmunds, 16 
Vt. 687. 

195. The defendant sold the plaintiff eight 

stoves for $200 and received payment. He deli v- 

ered six of them, and gave a bill of sale stating 

that '* six are now delivered, and the other two 

to be delivered at Hyde Park in two months 

from date, and if the eight are not sold in one 

year from date, I am to take back two of them 

and pay $50 and interest." The two stoves not 

having been delivered as agreed, the plaintiff 

sued and got judgment therefor and collected 

his damages, $55. At the end of the year, the 

plaintiff having been unable to sell three of the 

six stoves delivered, gave the defendant notice 

thereof, and that two of them were ready for 

him at the place named, and demanded the 

payment of the $50, and interest. In an action 

therefor ; — Held, that the plaintiff was entitled 

to recover that sum ; that the two stipulations 

of the defendant were entirely distinct ; and 

that a satisfaction paid for breach of the first 

was not a satisfaction of the second, which was, 

in effect, a contract for rescission as to two of 

the stoves, if unsold at the end of the year. 

Sawyer v. Mclntyre, 18 Vt. 27. 

196. The plaintiff covenanted to deliver cer- 
tain quantities of coal before certain specified 
dates, and the defendant covenanted to pay 
**for the above-named coal" a certain price 
per hundred bushels, '*to be paid the first of 
each month for all delivered." Held, that the 
defendant's covenant was not independent, but 
only bound him to pay monthly, on condition 
that the plaintiff had delivered the coal accord- 
ing to the contract. Lcmrence v. Da/oey, 28 Vt. 
264. 

197. Penalty — Idanidated damages. 
(1.) Where there is any reasonable doubt upon 
th^ face of a written contract how the parties 
intended a sum named therein, whether as a 
penalty or as liquidated damages, it will be con- 
strued as a penalty merely. (2.) It is a settled 
general rule, that where the sum is named as a 
penalty, and there is no stipulation that it shall 
be regarded as liquidated damages, it can only 
be regarded as a penalty. It would require 
very strong evidence to authorize the court to 



say that the words of the parties do not express 
their own intention. Held to be a penalty, 
where so expressed in a bond, given on the sale 
of property and the good will of a business, 
conditioned that the obligor should refrain from 
prosecuting the same business. Smith v. Wain- 
toright, 24 Vt. 97. Bee Whiicomb v. Preston, 13 
Vt. 58. 

198. Whetherjoint, or seyeral. Separate 
considerations proceeding from two covenantees, 
and separate interests to be received by them, 
do not make a covenant, in terms joint, a sev- 
eral covenant. Distinctive word% qualifying 
the covenant, such as to them respectively, or 
to them and each of them, are necessary to make 
the covenant several, Catlin v. Barnard, 1 
Aik. 9. But see Sharp v. Conklin, 16 Vt. 355. 

199. The several defendants executed to the 
plaintiff a writing, in terms, ^^we hereby agree 
to indemnify E M (the plaintiff) for aU dam- 
ages and costs," &c., **by reason of his hav- 
ing become bail," &c. To each signature 
there was indicated a certain sum, as, **$10.00," 
" $5.00," &c. Held, that, as the contract was 
joint in its terms and object, and the subject 
matter was entire, it was not made several by 
the sums set against the signatures, which 
might indicate the rate of contribution among 
the defendants. McCutUs v. Thurston,27 Vt.596. 

200. Several persons, not partners, were 
jointly indebted to K, and three of them (the 
defendants) gave to the others (the plaintiffs) a 
writing requesting them to pay K, concluding, 
"and we will settle with you for our sliare." 
The plaintiffs paid K, and brought their action 
declaring upon this as a joint promise, alleging 
that the defendants' share was a certain named 
sum . Held, on demurrer, that the promise 
was joint, that it was upon good consideration, 
and that it was not necessary to aver that any 
balance had been agreed upon as the defend- 
ants' share. ScoU v. Keit?i, 32 Vt. 246. 

III. Modification ; — Rescission ; — Power 

TO STOP PeBFOKMANCE. 

201. Modification. A contract cannot be 
altered except by another contract of equal 
force. Thus, a bond cannot be altered or su- 
perseded by, or merged in, an oral agreement 
merely. Patrick v. Adams, 29 Vt. 876. 

202. Where a contr .ct under seal is subse- 
quently altered by the parties by a writing not 
under seal, or by a verbal agreement, the whole 
becomes a simple contract, and the rights, 
liabilities and remedies of the parties are there- 
after to be determined by the rules applicable 
to all simple contracts. Briggs v. Vt, Central 
R, Co,, 81 Vt. 211. 45 Vt. 438. 

203. A subsisting sealed contract becomes 
reduced to a simple contract by a subsequent 
parol agreement modifying it (—as, by a subse- 



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quent written agreement engrafted upon it In 
such case the remedy is assumpsit^ and not cov- 
enant. HydemUe Co. v. Eagle R. dt Slate Co., 
44 Vt. 895. Sherwin v. Hut d Bur. R. Co., 
24 Vt. 847. 

204. Where the plaintiff had covenanted 
under seal to deliver certain quantities of coal 
by certain specified times, and had delivered 
part, but not according to his covenant either 
as to time or quantity, and the defendant then 
agreed by parol that if the plaintiff would con- 
tinue to deliver the coal the defendant would 
take no advantage of the contract, but would 
pay for all tte coal then or thereafter to be de- 
livered, irrespective of the contract ; — Held, 
that the plaintiff could recover in assumpsit for 
all the coal then or thereafter delivered. Law- 
rence V. Dtwey, 28 Vt. 264. 

205. A simple contract reduced to writing 
may be varied or changed, in any way, by a sub- 
sequent verbal agreement. Flanders v. Fay, 
40 Vt. 816. 8herwin v. Rut. & Bur. R. Co., 
24 Vt. 847. 

206. AUUfr, as to contracts under seal, which 
cannot be varied by a mere parol contract, 
whether in writing or not ; since such a con- 
tract is inferior to the original. Shermn v. Rut. 
d: Bur. R. Co. 

207. In regard to all written contracts, 
where alterations are made without writing, 
the substituted agreement all virtually rests on 
mere oral evidence, and an action must be pre- 
dicated upon the altered contract ; and if the 
original contract is set forth, it is merely as in- 
ducement, lb. Dana v. Hcmeock, 30 Vt. 616. 

208. A contract under seal between the 
maker and payee of a* promissory note, by 
which the maker agreed to deliver and the 
payee to receive certain property in satisfaction 
of the note, was held to be a substitute for, and 
to supersede and extinguish the note, and was a 
bar to an action thereon. Bryant v. Oale, 6 
Vt. 416. 1» Vt. 561. 

209. A new note, given merely in substitu- 
tion for two previous notes which were in law 
satisfied, was held to be subject to the same de- 
fense, Hurd V. Spencer, 40 Vt. 581. 

210. Whether a new contract shall super- 
sede and take the place of a former one, is mat- 
ter of probable intent. If the new contract be 
inconsistent with the continuance of the former 
one, the old contract is released by entering in- 
to the new, although of the same grade ; but 
where not so inconsistent, and the new contract 
only provides a new mode of discharging the 
former one, it produces no effect upon the for- 
mer, unless or imtil the new be performed ;— 
appUed to the case where an innkeeper, having 
a bag of gold of his guest, to keep, was request- 
ed by the guest to take it across the way to a 
neighbor's, for him to keep over night. Me- 
Jhmeli V. BoMn^ni, 26 Vt. 816. 



211. The plaintiff, by engagement of the de- 
fendant, boarded a man in the defendant's ser- 
vice. Afterwards the defendant took in a part- 
ner in the same business, and the plaintiff con- 
tinued to board such person, who continued in 
the employment of the partnership. Held, that 
mere knowledge of the fact of the partnership 
did not require tlie plaintiff to change his mode 
of charging, and that the defendant was liaMe 
for the whole board bill. Taggart v. Phelpe, 
10 Vt. 318. 

212. A substitution, by parol agreement, 
for the place of delivery of goods, as named in 
a written contract, is good, being acted upon. 
Hunt V. Tkurman, 15 Vt. 336. 

213. By the contract, the plaintiff was 
bound to furnish a certain number of hop-poles 
within a certain time, and the defendant to pay 
therefor a certain price. The plaintiff delivered 
only a part within the time fixed, and after- 
wards the defendant sold out the contract to M, 
and M then agreed with the plaintiff to extend 
the time for delivery, and within such extended 
time the plaintiff made full delivery. The case 
showing a subsequent assent by the defendant 
to such modification of the agreement, and that 
he treated it as a still subsisting contract ; — 
Held, that he was liable to pay for the poles. 
Lane v. Sprague, 86 Vt. 289. 

214. It aeems, that where one sets up, in 
defense to an action for breach of contract, the 
waiver of a strict performance by the substitu- 
tion of something different [as a further day 
for the delivery of articles sold], he must show 
performance accordins; to the substituted con- 
ditions, or a recovery may be had, counting 
upon the original contract. Hill v. Smith, 82 
Vt. 435. Lawrence v. Bole, 11 Vt. 655-6. 

215. Where parties under a special contract 
—as a building contract — deviate from the origi- 
nal plan agreed upon, and the terms of the 
original contract do not appear to be applicable 
to the new work, it being beyond what was 
originally contemplated by the parties, it is un- 
doubtedly to be regarded and treated as work 
wholly extra, out of the scope of the contract, 
and may be recovered for as such. But it is 
otherwise, if the original terms are not inappli- 
cable, and there is evidence from which it may 
be inferred, that it was the intention of the par- 
ties that the new work should be subject to 
those terms — as, times and mode of payment. 
Boody V. Rut, d Bur. R. Co. (U. 8. C. C), 24 
Vt. 660. 

216. Rescission. Inadequacy of consider- 
ation may be evidence of fraud; but upon 
such inadequacy alone, a contract cannot 
be set aside or rescinded. Kidder v. Cham- 
berUn, 41 Vt. 62. HarnngUm v. Wells, 12 Vt. 
606. 

217. A mistake or misunderstanding as to 
the meaning of the terms of » contract, ^vee 



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neither party the right to rescind. Montgomery 
V. Bicker, 48 Vt. 165. 

218. The parties being in partnership, the 
defendant sold all his interest in the partner- 
ship effects to the plaintiff. It was afterwards 
discovered that the inventory and estimates of 
the effects, which the parties had before them 
as their guide for mutual propositions, were 
erroneous, by reason of which, as the plaintiff 
claimed, he was induced to pay the defendant 
too much for his interest ; but the sum paid 
was, in fact, less than the apparent amount of 
the defendant's interest, and the defendant sold 
his interest without any idea of future account- 
ability. Heldy that while the sale remained in 
force for the plaintiff's benefit, he could not 
maintain an action to recover back part of the 
consideration paid. Wood v. Johnson^ 18 Vt. 
191. 

219. A contract to be rescinded ah initio as 
to part, and at the election of one party, must 
be wholly rescinded. Fay v. OU'cer, 20 Vt. 
118. 21 Vt. 528. 

220. The plaintiff contracted to purchase of 
the defendant two parcels of land for one price, 
and the defendant conveyed one parcel at the 
time, and stipulated to convey the other on re- 
ceiving payment for both, and put the plaintiff 
in possession of both. The defendant refused, 
on demand, to convey the second parcel, on the 
alleged ground that the full price had not been 
paid. In general assumpsit to recover the con- 
sideration paid for the second parcel ;~-Heid, 
that although the parties, in their estimates of 
the values in their negotiations, referred two- 
thirds of the whole sum to the first parcel and 
one-third to the second, it was still one entire 
purchase ; and that as the contract had been so 
far executed that the plaintiff had realized man- 
ifest benefit under it, and the parties could not 
be placed in statu quo, it was not in a state to 
be rescinded at all, and much less as to the 
second parcel only, except by mutual consent, 
although the full price might have been paid— 
and that the plaintiff could not recover. lb, 

221. The party who would rescind a con- 
tract, though procured by fraud, must be in a 
condition to put the other party in statu quo ; — 
as, to restore a promissory note taken for goods 
procured by fraudulent representations. Poor 
V. Woodbum, 25 Vt. 284. 

222. This does not necessarily imply a ten- 
der, or distinct offer to return the note. Where 
he has not parted with it, the production of it 
at the trial, if required, to be disposed of under 
the direction of the court, is sufficient. lb. 
Hodgeden v. Hubbard, 18 Vt. 504. 

223. Where a contract has been in part ex- 
ecuted and each party has received a partial 
benefit from the contract, so that the parties 
cannot be placed in statu quo by a rescission, 
one party cannot rescind for the default of the 



other, but must be left to his action, or cross- 
action. Hammond v. Buckmaster, 22 Vt, 875. 
21 Vt. 204. 

224. Where the consideration of a contract 
is the purchase of a thing non-existent, or 
wholly without value, or where the restoration 
of the consideration is in the nature of things 
impossible, no offer to rescind is necessary in 
order to a defense in an action upon the con- 
tract. Smith V. Smith, 30 Vt. 189. 

225. Under certain circumstances, one of 
the parties to a contract may rescind it without 
the consent of the otlier ; as where, by the 
terms of a contract, concurrent acts are to be 
performed— as a delivery of the property by one 
party and a payment of the price by the other — 
if either party should refuse to perform his part 
of the contract, the other party would be at 
liberty to treat this as an abandonment of the 
contract, and justifv a rescission. Fletcher v. 
Cole. 28 Vt. 114. 

226. A purchaser cannot rescind a contract 
induced by misrepresentation and fraud, after 
he has wholly disposed of the purchased prop- 
erty, by offering to restore what he has received 
for it, although disposed of before discovery of 
the fraud. He must rely upon other remedies. 
McCrilUs V. Carlt^fn, 37 Vt. 139. 

227. The defendants secured under a con- 
tract with the plaintiff the use of a patented 
machine, belonging to him, for a certain yearly 
rent, so long as they, at their election, should 
continue to use it. After using the machine 
for some years and paying the rent, the defend- 
ants claimed to have acquired the right from 
another source to use the patent, and gave no- 
tice to the plaintiff that they should pay no 
longer ; but they, or their vendees, continued 
to use the machine. In an acticm upon the con- 
tract to recover the agreed rent;— fl^'W, that 
the contract estopped the defendants from deny- 
ing the plaintiff's title so long as they, or 
their vendees, continued to use the machine, in 
the absence of fraud in the making of the con- 
tract, or unless the plaintiff's title had expired; 
and that the defendants could not terminate the 
contract to pay without surrendering the ma- 
chine, and were liable to pay for such use until 
surrender. Sherman v. Champlain Transport- 
ation Co., 81 Vt. 162. 

228. But held otherwise as to the right, un- 
der the same contract, to use a patent for a ma- 
chine built and owned by the defendants. lb, 

229. The plaintiff sold land to the defend- 
ant, taking his notes therefor, and gave him 
a bond conditioned to convey upon payment of 
the notes, and in the meantime the defendant to 
have possession, but on neglect to pay, the 
bond to be void and the plaintiff to have the 
right to re-enter and enjoy. In an action upon 
the notes \—HM^ that it was no defense, as to 
any of the notes, that the defendant had not 



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paid the one first falling due, nor had taken 
possession ;— that the bond was void only as 
against the plaintiff, at his election. Chandler 
▼. Marsh, 8 Vt. 161. 

230. The plaintiff had contracted to deliyer 
to the defendant certain furnace castings, and 
to a certain amount, to be paid for partly in 
labor and the balance in cash in one year. After 
a delivery of part of the castings, the defend- 
ant refused to receive a load of the castings 
sent under the contract. HM^ that the refusal 
was such a violation of the contract, preventing 
its further execution by the plaintiff, as ab- 
solved him from his obligation to deliver the 
balance of the castings, and to give the stipu- 
lated credit for the amount delivered, and to 
take payment in labor ; and that an action of 
book account lay inunediately to recover for the 
castings delivered. Tyson v. Doe, 16 Vt. 671. 
20 Vt 121. 21 Vt. 22. 

231. The plaintiff procured and paid for 
some tea at the defendant's store, and shortly 
after returned it—** it not being good." The 
defendant received it, saying he should have 
some good tea soon, and would replace the tea 
returned with good tea. The defendant re- 
tained both tea and money and never delivered 
any other tea, nor did the plaintiff call for it. 
HeM, that here was no contract of absolute re- 
scinding so as to make the defendant a debtor, 
either for the money, or for the tea, unless 
called for; and that the plaintiff could not 
maintain an action on book therefor. We«t v. 
CuUing, 19 Vt. 686. 

232. The plaintiff sold to the defendant a 
horse and a clock for a harness and two prom- 
issory notes of the defendant, by falsely and 
fraudulently warranting the horse to be kind 
and safe in harness, whereas the horse had such 
an inveterate habit of kicking as to be nearly or 
quite worthless. The plaintiff had not deliv- 
ered the clock. The defendant, upon discover- 
ing the vicious habits of the horse, requested 
the plaintiff to receive back the horse and to 
surrender the harness and notes, which the 
plaintiff declined, and brought suit upon the 
notes. HeleL, that as the horse might have 
constituted the main inducement to the bargain, 
the defendant should be allowed, at his option, 
to treat it as entirely invalid ;— and a judgment 
for the defendant below was affirmed. Morrill 
V. Aden, 19 Vt. 606. 

233. A agreed to sell B a parcel of land for 
a price named, for which B gave his note, and 
took possession of the land, and received from 
A a written agreement to convey if the note 
should be paid when due. The note was not 
paid at maturity. Held, that A had his election 
to collect the note, or to rescind the contract and 
take back the land; but that having made 
his election by obtaining possession of the 
land by ejectment^ he CQttld not enforce pay- 



ment of the note. Arhuckle v. Hawks, 20 Vt. 
638. 

234. So held, where the purchaser had taken 
a lease of the land from the vendor after the 
note fell due, and had occupied it as tenant ; — 
that this was a rescission by mutual arrange- 
ment. Porter v. Vaughn, 26 Vt. 624. 

235. The plaintiff conveyed a farm to f 
and took back a mortgage, which remained un- 
paid, and, in the expectation of getting back a 
quitclaim from F, entered into a contract to 
convey the same to the defendant, and took the 
defendant's notes therefor. The defendant did 
not then fully understand the state of the title, 
but soon after was informed of it, and then re- 
pudiated the contract and demanded back his 
notes. The plaintiff refused to rescind, and 
offered a good guaranty that the defendant 
should have a good deed, which the defendant 
declined, and abandoned the land. Afterwards 
the plaintiff received the quitclahn from F and 
rented the place for one year and occupied it 
another year, and then sold it. In an action 
upon the defendant's notes, the plaintiff claimed 
to recover his loss in the transaction. Held, 
that the facts shown amounted to a practical 
abandonment of the contract by the plaintiff, 
and operated as an acceptance of the rescission 
offered by the defendant, and took effect, as of 
that time, and thus left the notes without con- 
sideration. Henry v. Martin, 89 Vt. 42. 

236. The defendant, having procured a horse 
of the plaintiff by exchange, within a reasona- 
ble time returned the horse to the plaintiff, 
complained that the horse was lame and un- 
sound, and ** requested to trade back and call it 
no trade"— offered **to trade back and have 
things as they were before the trade," and 
'* asked to rescind the trade," which the j)lain- 
tiff refused. The county court ruled that this 
did not constitue a rescission of the contract. 
Held, (by a majority), erroneou/; that the evi- 
dence tended to prove a rescission, and should 
have been submitted to the jury to determine 
what the 'parties understood by it Gates y, 
BUss, 48 Vt. 299. 

237. The plaintiff sold the defendant a yoke 
of oxen which were eight years old, but which 
the plaintiff fraudulently represented to be only 
seven years old. On the second day after the 
defendant took the oxen, one £ informed him 
that, in his opinion, judging from their appear- 
ance, the oxen were nine years old. The de- 
fendant continued to use the oxen for five days 
longer, when he returned them to the plaintiff, 
and notified him that the oxen were not as rep- 
resented ; but the plaintiff refused the receive 
them, and brought suit for the price. Held, 
that the defendant had exercised his right of re- 
scission within what, under the circumstances, 
was a reasonable time. MaUeson v. Hoi^ 46 
Vt. 886. 



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238. A purchaser, who is entitled to rescind 
a purchase for frand, but who delays doing so 
for the purpose of affording tlie vendor, at his 
own request, an opportunity of attempting to 
make the thing sold of value and satisfactory to 
the purchaser, is not precluded by such delay 
from thereafter, in reasonable time, rescinding 
the purchase. Pomll v. Woodworth, 46 Vt. 378. 

239. A party having a right to rescind a 
contract on the ground of fraud, elects, after 
discovery of the fraud, to go on under the con- 
tract. This is an affirmance of the contract, 
and concludes him from rescinding. Downer 
V. SnUth. 33 Vt. 1. 

240. Power to stop performance. While 
a contract is executory, a party has the power 
to stop the performance on the other side by an 
explicit direction to that effect, thereby sub 
jecting himself to such damages as will com 
pensate the other party for being stopped in 
the performance on his part, at that point or 
stage in the execution of the contract. Dan- 
forth V. WaUc4T, 37 Vt. 239. 8, C. 40 257, 

241. The defendant contracted with the 
plaintiff for 1,500 bushels of potatoes, part on 
hand, and the balance to be purchased by the 
plaintiff and to be delivered during the winter 
as called for by the defendant. After the de- 
livery of a part, the defendant wrote the plain- 
tiff not to purchase any more potatoes until the 
plaintiff should hear from him. The plaintiff 
continued purchasing and the defendant refused 
thereafter to receive. In an action for refusing 
to receive the potatoes so purchased; — Held, 
that this letter was not a rescission of the con- 
tract by the defendant, but only a refusal to re- 
ceive under it any potatoes thereafter pur- 
chased ; — that the defendant had the power to 
do this and to stop the further execution of the 
contract, subjecting himself to such damages 
therefor as would compensate the plaintiff for 
being so stopped; — that the plaintiff had no 
right to go on and make further purchases and 
incur expense, and throw the risk of the proper- 
ty upon the defendant, and thereby enhance the 
damages at his expense, without any benefit to 
himself ;— and that the rule of damages for this 
breach, so far as respects the recjuisite quantity 
then still to be purchased to fiU the contract, 
was the difference between the price stipulated 
to be paid, and what it would have cost the 
plaintiff to procure and deliver the potatoes. 
Ib\ and see Derby v. Johnrnn, 21 Vt. 17. Nye 
V. Taggart, 40 Vt. 295. 

IV. Certain Particular Contracts. 



1. Far MTciee.. 

242. Entire. If a party, under a contract 
to labor for a specified period, leave the ser- 
vice before the expiration of that time without 



sufficient cau8e,'_he cannot recover on the con- 
tract, nor on a quarUum meruit, for the service 
rendered. Hair v. BeU, 6 Vt. 35. PkObrook 
V. Belknap, 6 Vt. 888. 8t Albans Steamhoat 
Co. V. Wilkins, 8 Vt. 54, Brown v. KimbaU, 
12 Vt. 617. Ripley v. Chipman, 13 Vt. 268. 
15 Vt. 515. Winn v. SotU/igate, 17 Vt. 855. 
J^ullen V. OiUdnmn, 19 Vt. 603. 24 Vt. 515. 
Forsyth v. Hastings, 27 Vt. 646. 

243. Excuse for quitting. Where the 
plaintiff contracted to serve the defendant for 
six months, but quit the service before the end 
of the term ; — Held, that he could not recover 
although, (1), he quit under the erroneous be- 
lief that according to the legal mode of com- 
puting time under^'such contracts, his time was 
up,— and although, (2), the defendant had 
consented to his absence during a part of the 
term, but he had, on his return, resumed bis 
work under the contract— and, although, (3), 
the defendant had refused to take him back 
after he had broken his contract by leaving. 
Winn V. Smithgate. 

244. It is no sufficient excuse for abandon- 
ing a contract of service, that the party was 
put to other service than that specified in the 
contract, if he made no objection thereto. Hair 
V. Bell, 6 Vt. a^^ MuUen v. Oilh'nmn, 19 
Vt. 503. 

245. Nor, that the employer refused, upon 
the employee's solicitation, to discharge another 
servant with whom he had difficulty. Mullen 
V. Gilkiruum. 

246. Fault finding and angry words by an 
employer towards his laborer [as stated in the 
case], were held not a sufficient excuse for leav- 
ing the service. Forsyth v. Hastings, 27 Vt. 
646. 

247. A girl, hired by the defendant for do- 
mestic service for an entire term at a specified 
price, left such service during the term, for the 
reason that she ''took a dislike" to the defen- 
dant's father for some rudeness in his deport- 
ment towards her in respect to her chastity. 
Held, that this was good cause for leaving, and 
that she could recover for the service perform- 
ed, although the father was of another separate 
family, but occupying the same house, and the 
defendant had no control over him. Patterson 
V. Gage, 23 Vt. 558. 

248. A party contracting to labor for a de- 
finite term, at a fixed price for the term or by 
the month, who fails to fulfil his whole contract 
by reason of disabling sickness, may recover 
for his part performance what his services have 
benefitted the other party, with reference to full 
performance — that is, by deducting from the 
benefit so received any damage sustained by 
reason of the non-performance of the entire con 
tract. Patrick v. Putnam, 27 Vt. 759. Fen. 
tan V. Clark, 11 Vt. 557. Semer v. Morse, 90 
Vt. 620. Hubbard v. BMen, 27 Vt. 645. 



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249. Nor is he barred of such recovery 
upon a quantum meruit by his neglect, after 
getting well, to return and complete the service 
where the employer would not be bound to re- 
ceive him — as at the end of two weeks. Hub- 
bard V. Belden. Fenton v. Clark. Seaver v. 
Marsf. 

250. Dismissal. The defendant had en- 
gaged to labor for the plaintiffs, A and B, for a 
definite term, at an agreed price. A discharged 
him from service. B soon after requested the 
defendant to go to work again under the con- 
tract,— which the defendant declined. Hfldy 
that the dismissal by A put an end to the con- 
tract as to both A and B, and that neither was 
restored to his rights under it by the request of 
B. Sutf.ons V. Ti^eU, 12 Vt. 79. 

251. Lost time. A laborer hired for a 
definite period is not bound, on the expiration 
of the specified perickl, to make up for time 
necessarily and reasonably lost and in the loss 
of which his employer has aqniesced, by con- 
tinuing on in the service of the employer for a 
length of time equal to the time so lost. Nor 
is the employer bound to receive labor for such 
length of time as compensation for the time 
lost ; but is bound to pay only for the services 
actually rendered. McDonald v. Montague^ 30 
Vt. 357. 

252. Bight reserved to terminate. The 
plaintiff contracted to labor for the defendant 
at farm work for one year at #15, per month, 
each part}' having the right to terminate the 
contract at any time when he should become 
dissatisfiexl and desire to terminate it. Ttie 
plaintiff worked from Deceml)er to July, when 
he became dissatisfied and quit. Held, that, 
in leaving, he had only exercised his right 
under the contract ; that he had fully performed 
it and was entitled to recover the full contract 
price. Whitcomb v. Oilman, 36 Vt. 5^7 ; and 
he might recover in such case, although his dis- 
satisfaction was capricious and without good 
reason. Prormt v. Harwood, 29 Vt. 219. 

253. The plaintiff agreed to labor for the de- 
fendant for one year, for a certain sum to be 
paid when he should have finished his labor ; 
and it was mutually agreed, that if the plaintiff 
should become dissatisfied and wish to leave the 
defendant's employ, he might do so by giving 
fourteen days' notice of his intention to leave ; 
and the defendant should have the right to dis- 
charge him by giving one day's notice of the 
intention to discharge him. Held, that either 
party, upon becoming dissatisfied, was at lil>er- 
ty to terminate the contract by giving the speci- 
fied notice, without apprising the other party 
of the grounds of his dissatisfaction, and al- 
though he might have no satisfactory reason for 
soch dissatisfaction ; and the plaintiff having 
quit the defendant's service before the end of 
the year, after having given the stipulated no- ' 



tice; — Held, that he became immediately en 
titled to sue for his wages, having * 'finished his 
labor." RosHiter v. Cooper, 23 Vt. 522. 

254. Time of pajnoient. In contracts of 
service for a term, as for so many months at so 
much per month, where no time is stipulated 
when payment is to be made, the law implies 
that it is to be made at the end of the term. 
Teho V. Ballard, 36 Vt. 612. 

255. If, in such case, the servant quit lx?fore 
the expiration of the term without fault of the 
employer, he can not demand or sue for the ser- 
vices rendered until after the expiration of the 
term, although then entitled to recover upon a 
quantum. mt)*uit. lb, 

256. Power to stop emplosnnent. In a 
contract for labor, the employer has the power 
to stop the completion of the work, if he choose 
—subjecting himself thereby to the consequen- 
ces of a violation of his contract ; and the work- 
man, after notice to quit work, has no right to 
continue his labor and claim pay for it. Derby 
V. Johnmn, 21 Vt. 17. 

257. While the plaintiff was laboring for 
the defendant under an entire contract for 
service, the defendant, without justifiable cause, 
ordered him to leave hiff employment, which 
the plaintiff soon after did. Held^ that he was 
entitled to recover for the services performed, 
although he continued to work a few hours 
after having been ordered to leave ; and 
although, upon'a subsequent day, he gave as a 
further reason for leaving, that the defendant 
was going to break down and he was afraid 
he should not get his pay. Green v. Hulett, 
22 Vt. 188. 

258. Waiver of forfeiture. Where a 
farm laborer is hired for (say) four months at a 
fixed price per month, and quits before the ex- 
piration of the four months without the consent 
of his employer, or wrongfully, an offer by the 
employer to pay for the whole service at the 
contract price, or a tender of a 8un\ of money, 
supposed to be the amount due as thus compu- 
ted, is a waiver of any forfeiture of wages 
which the employer might otherwise claim. 
Patnote v. Sandern, 41 Vt. 66. Sea^ocr v. Morse, 
20 Vt. 620. So, any acts or declarations, recog- 
nizing a continued liability, may amount to 
such waiver. Cahill v. Patternon, 30 Vt. 592. 

259. Assent to termination. Where a 
contract of service is dissolved by mutual con- 
sent before the period at which wages become 
due, pro rata wages may be recovered without 
any express contract to that effect. Rogers v. 
Steele, 24 Vt. 513. Green v. HuleU, 22 Vt. 188. 
(For facts constituting such consent, see cases.) 

260. The plaintiff was hired to the defen- 
dant for four months at a fixed price per month, 
and during his term of service left voluntarily, 
but with the consent of the defendant. It not 
appearing that the plaintiff had good cause for 



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leaving ;—IIeld, that he could recover only pro 
rata on the basis of the contract price. Pat- 
note V. Sanders, 41 Vt. 66. 

261. The plaintiff had contracted to work 
for the defendant for one year, but left before 
the year was out, without cause. The plaintiff 
told the defendant he was going to leave, and 
the defendant made no objection, but said he 
could get just as good workmen as the plaintiff, 
and the plaintiff supposed the defendant con- 
sented to his leaving. The next day the de- 
fendant told the plaintiff to come, in a day or 
two, and he would settle with him. In about 
ten days, the plaintiff went to settle, when the 
defendant said his books were at the office of 
his attorney, and told him to go there. The 
defendant went and met the attorney. The de- 
fendant's books there showed a balance of 
^57.22 due the plaintiff. The defendant then 
claimed $50 damages for leaving his service, 
and offered to pay the difference, ^7.22. The de- 
fendant had never before claimed such damage. 
Held, that the plaintiff was not liable for dam- 
ages, and was entitled to recover, pro rata, 
for the time of his service. Boyle v. Parker, 
46 Vt. 343 ; and see Mogers v. Steele, 24 Vt. 
513. 

262. Board. The plaintiff labored for the 
defendant, the defendant to board him in a par- 
ticular way at a certain place. Held, that the 
plaintiff could not board himself elsewhere and 
charge the expense to the defendant, no failure 
on the part of the defendant being shown. 
Grljlfin v. T^/san, 17 Vt. 85. 

263. Clothes. The plaintiff, an old man 
of feeble mind, agreed to work for the defend- 
ant for his board and clothes, no length of ser- 
vice being specified. He worked from the last 
of February to the first of August, boarding 
with the defendant, and then left. When he 
came, he was poorly clad. The defendant fur 
nished him no new clothes, but only saw that 
his old clothes were mended and taken care of. 
In an action to recover his wages, the auditor 
found that his labor was worth $40, and that 
this sum was no more than was requisite to 
supply him with things that he actually stood 
in need of, to enable him to live comfortably 
through the fall and winter. Held, that the 
agreement to furnish clothes was not limited to 
the time while the plaintiff worked, but must 
be considered in relation to the whole year, to 
the season of the year in which he worked, the 
value of his services, the difficulty of getting 
work at other seasons of the year, and the cloth- 
ing he then had and might reasonably require 
for the coming winter, and that he could recov- 
er the f40. Spencer v. Storrs, 38 Vt. 166. 

264. Hiniflterial labor. The defendant, 
a religious society, hired the plaintiff as their 
pastor for one year at $800. At the close of 
the first year the plaintiff agreed to remain for 



such sum as could be raised upon subscription— 
the defendant to circulate and collect the sub- 
scriptions—and he so remained for five years. 
Held, (1), that the contract of hire continued 
through the whole time, varied from the con- 
tract of the first year only as to the amount of 
compensation, and perhaps incidentally as to 
the time of payment; (2), that the amount 
which the society might, with reasonable effort 
and due diligence, have collected upon the sub- 
scriptions made, was the measure of the plain- 
tiff*s compensation under the contract, and 
could be recovered in an action on book as for a 
price agreed. Myers v. Baptist Society, 88 Vt. 
614. 



2. Contract of indemnity. 

265. Indemnity proper. An action does 
not lie on a contract of indemnity, unless and 
until the plaintiff has sustained the loss or dam- 
age guaranteed against. Eureka Marble Co. v. 
Winds<yr Mfg. Co., 47 Vt. 430. 

266. A condition simply to indemnify and 
save harmless from the payment of a debt, is 
not broken until the obligee has been compelled 
to pay, or, having become liable, has actually 
paid or been put to expense. St. Albans v. 
CurUs, 1 D. Chip. 164. 

267. The allowance in the probate court of 
a claim against the estate of a surety, is such a 
damnification as entitles the surety's adminis- 
trator to sue the principal upon his contract of 
indemnity. Pond v. Warner, 2 Vt. 632. 

268. A, as surety for B, executed with hun a 
note to C, and, after the note had become due, 
6 gave A a mortgage conditioned that he 
would pay said note "so as wholly to indem- 
nify and save A harmless from his liability on 
said note." Held, that the mortgage was not 
forfeited by the mere non-payment of the note 
by B, it being but a common contract of in- 
demnity ; but if the mortgage had been execut- 
ed before the note fell due it would probably 
have been otherwise. /J. 

269. The general proposition, that there can 
be no contribution nor indemnity between 
wrong doers, is subject to the exception, that 
where one party induces another to do an act 
which is not legally supportable, and yet is not 
clearly in itself a breach of law% the party so 
inducing shall be answerable to the other for 
the consequences. But this inducement must 
consist of an express undertaking to indemnify 
against the consequences of such act, or omis- 
sion to act, or the circumstances attending the 
transaction, as between the parties, must be 
such that the law will therefrom imply an un- 
dertaking, or raise an obligation on the part of 
the one to indemnify the other. Pierpoint, C. 
J., in Spaulding v. Oakes, 42 Vt. 843. 

270. Spaulding had been compelled to pay 



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a judgment recovered against him and Cakes, 
for injury done by a vicious ram owned by 
them in common, but running in the pasture of 
Oakes and more immediately under his charge, 
as reported in Oakes v. Spaulding <fe Oakes, 40 
Vt. 347. In an action by Spaulding againsl 
Oakes for indemnity ;—Held, by a majority, 
that the grounds of recovery in that case were 
not such as to raise the obligation of indemnity. 
lb. 

271. Contract to pay. The plaintiff hav- 
ing executed certain notes to a third person, 
the defendant agreed with the plaintiff in writ- 
ing, for a full consideration received, to pay 
said notes. Held, that this was not a contract 
to indemnify, but to pay, and that the statute 
of limitations commenced to run from the ma- 
turity of the notes. Urofoot v. Moore, 4 Vt. 
204. 

272. Tlie plaintiff, at the defendant's re- 
quest, executed a receipt to an officer for prop- 
erty attached upon a writ of A v. B, upon the 
defendant's promise to indemnify and relieve 
him by paying the debt in that suit, within a 
few days. The defendant did not pay the 
debt, nor in any other way relieve the plaintiff, 
but the plaintiff stood cliargeable upon the re- 
ceipt, although he had paid nothing. Held, 
that this was more tlian a mere contract of in- 
demnity, and was broken by the failure of the 
defendant to pay as agreed ; that the plaintiff 
then had an immediate right of action, and 
could recover to the extent of his liability. 
Hubbard v. BiUtngs, 35 Vt. 699. 

273. Special case. The defendant, chiira- 
ing to own a horse in the plaintiff's possession 
which the plaintiff had purchased of W, prom- 
ised the plaintiff, that if he would deliver the 
horse to him, and would bring suit against W 
for having fraudulently sold the hor«e as his 
own, and should fail in such suit to recover 
damages, he, the defendant, would indemnify 
and make the plaintiff good for his damage, 
loss and expense. The plaintiff thereupon de- 
livered the horse to the defendant, and brought 
such suit against W, but gave no notice thereof 
to the defendant, and failed in the suit. Held, 
(1), that the agreement was upon sufficient con- 
Mderation ; (2), that the record in the suit 
against W was evidence to prove the fact of 
bringing the suit and the failure to recover, and 
that this entitled the plaintiff to recover under 
the contract ; (3), that, although that judgment 
might be treated as tTUer altos, and so not con- 
chisive against the title of the defendant, yet, 
as there was no proof offered in this case that 
the title to the horse was in any one else than 
the plaintiff who had the possession, the value 
of the horse should be included in the plain- 
tiff's damages. Lincoln v. BUmchard, 17 Vt. 
4«4. 



3. Affistfnent. 



274. The contract of agistment implies the 
dut^^ on the agister to restrain the animals 
within his inclosure by lawful fences, unless 
there is some special understanding which re- 
lieves him. If for want of such fences the ani- 
mals escape and thereby are lost or suffer dam- 
age, he is liable therefor. Bargent v. Slack, 47 
Vt. 674. 

275. The plaintiff took of the defendant 
some cattle and sheep to pasture for the season, 
at a fixed price per week, but there was no ex- 
press stipulation as to the manner of keeping, 
nor as to the care the plaintiff should take of 
them. Part of the sheep were wethers, and 
part ewes. Through the plaintiff's negligence 
and want of care in restraining his rams from 
going at large between Aug. 1 and Dec. 1, as 
required by statute, they got with the ewes, 
which, in consequence, had lambs out of season, 
and thereby the lambs were lost. In an action 
of book account to recover the agreed price for 
keeping the cattle and sheep ; — Held, that this 
negligence of the plaintiff was a breach of the 
contract implied as to the exercise of proper 
care in the keeping of the pro|)erty ; that the 
contract was entire ; and that the defendant 
could recoup the damage to the ewes against 
the plaintiff's entire claim. Phelps v. Parish, 
89 Vt. 511. 

4. Contracts in the alternative. 

276. Where a contract is in the alt^Tnative, 
to do one of two things, the right of election is 
in the party speaking or promising. Mayer v. 
htmnell, 39 Vt. 298. Patchin v. Swift, 21 Vt. 
292. 

277. But if the contract be to do one of two 
things by a day certain, and the day elapse 
without election by the promisor, then the right 
of election passes to the promisee. Patchin v. 
SxHft ; and see Hvssell v. Ormsbce, 10 Vt. 274. 

278. L bought a horse of O and delivered 
him.a note against a third person in part pay- 
ment, and agreed to give good security for the 
balance by a day named, or else return the 
horse, and the note should l>e the property of 
O. Having failed to procure the security, L 
returned the horse and demanded the note. O 
received the horse, but refusc»d to surrender the 
note. Held, that the note liecame the property 
of O. J^arabee v. Orit, 4 Vt. 45. 

279. Assumpsit upon the following instru- 
ment : '* In consideration of four hundred dol- 
lars received of A. Knight I promise to deliver 
to him, bearer, two hundred barrels of crude 
oil at the Connecticut River Oil Well in Both- 
well, C. W., reserving the right to pay him 
twenty-five cents per barrel, on payment of the 
four hundred dollars above mentioned ; said oil 



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to be delivered any lime within three months." 
It was the custom, known to Knight (the plain- 
tiff), for the purchaser to furnish barrels for his 
oil at the well. Held, to be a note for two hun- 
dred barrels of oil to be delivered at any time 
within three months, and to be taken in barrels 
to be furnished by the plaintiff, unless the de- 
fendant should choose to pay four hundred and 
fifty dollars in money, in lieu of the oil; — that 
the plaintiff was not bound to furnish barrels, 
without proper notice that the defendants bad 
elected to pay in oil ; and that not having given 
such notice, nor paid the money within the time 
named, the defendants were liable for the value 
of the oil. Knight v. Petroleum Co., 44 Vt. 472. 

280. Where the defendant agreed to pay the 
plaintiff for a job of work when completed, or 
give his note therefor payable in a year, at his 
election, and he refused to give his note ; — Held, 
tliat he became immediately liable upon such 
refusal, and the plaintiff recovered in the action 
of book account. Oilman v. Hail, 11 Vt. 510. 

V. Action on Simple Contract. 

1. Parties, 

281. Plaintiff. In the case of joint owners 
of property sold by one, the purchaser not 
knowing that others were interested, an action 
on such contract may be maintained, either by 
the one with whom the contract was actually 
made, or in the names of the parties really in- 
terested. HiUiker v. lA)op, 5 Vt. 116. 

282. A sued 6 upon a contract signed by B, 
of the following tenor : ** Received of A J^ISO 
to be paid in obligations against some good man 
or men, to be on interest, for L C when he 
comes of age, on account of said A." B set up 
a release by L C after be became of age. Held, 
that the contract was with A to pay him, and 
that L C could not sue upon it, nor release it. 
TuUle V. CatMn, 1 D. Chip. 366. 

283. As respects simple contracts, the prom- 
ise, to whomsoever made, inures and is deem- 
ed a promise to him who has the beneficial in- 
terest,— that is, the person from whom the 
consideration moves. Warden v. Bumham, 8 
Vt. 390. 

284. On a contract to take certain shares in 
the stock of the corporation and to pay the trea- 
surer all assessments, &c. ;—Held, that an ac- 
tion for the assessments could not be brought in 
the name of the treasurer, but only in that of 
the corporation. W7dt€lau> v. Cahoon, 1 D. Chip. 
296. 

285. Where tlie consideration moves from a 
person principally interested in a contract, and 
the contract is made with him, one collaterally 
interested therein cannot sue thereon in his own 
name. Crampton v. Ballard, 10 Vt. 251, 17 
Vt.251. 18Vt. 569. 46 Vt. 369. 



286. Where a promise is made to a person 
from whom the consideration move<l, but to be 
performed to another and for another's benefit, 
— gtugre, whether the latter can, in any case, 
maintain an action thereon. lb, 11 Vt. 80. 
80Vt.284. 47Vt. 845. 

287. Where the defendant received property 
from A to convert into money, under a promise 
to A to pay it to the plaintiff, a creditor of A, 
and the defendant did convert the property in- 
to money ',—Held, that the plaintiff might sue 
in his own name for the money. Phelps v. 
Conant, 80 Vt. 277. 

288. In such case, after the money is real- 
ized, it becomes absolutely the money of the 
plaintiff in the defendant's hands. Then the 
law implies a promise directly from the defend- 
ant to the plaintiff. Bedfkld, C. J. Id. 284. 

289. But where the contract is special, or to 
the extent that it is special, it can be sued only 
in the name of the party with whom it is made, 
and from whom the consideration moves. Ih. 

290. Under a declaration counting upon a 
promise made to the plaintiff's deceased hus- 
band, upon a consideration moving from him, 
that the defendant would pay to her, in case of 
her husband's decease, a certain sum ; — Held, 
that the suit could not be maintained in her 
name ; but, qu<Bre, whether upon a proper de- 
claration this might not be done. Fugure v. 
Mutual Soey. of St. Joseph, 46 Vt. 862. 

291. In assumpsit upon a policy of life in- 
surance by the administrator of the insured, the 
declaration alleged the consideration as moving 
from the insured and the promise to pay to the 
wife and cJdldren of the insured, or their legal 
representative. On demurrer, held, that this 
was not an averment of a promise to the insur- 
ed, to pay, &c., but a promise to the wife, and 
that the declaration showed a case upon which 
the plaintiff could not recover. Davenport v. 
Mutual Life Ass'n., 47 Vt. 528. 

292. In assumpsit for lumber sold, which 
was the property of the plaintiff and W, the 
plaintiff's evidence was that he sold it in his 
own name and on his own account ; while the 
defendant's was, that the plaintiff acted for 
himself and W in making the sale. Held, that 
the plaintiff's right depended upon the disputed 
fact, which was a question for the jury ; and 
that the court erred in ruling that the action 
was rightly brought. Leah^ v. Alien, 47 Vt. 
463. 

293. The legal interest in a contract is in the 
person from whom the consideration passed and 
to whom the promise was made ; and he alone 
can sustain an action upon it, although it was 
made for the benefit of a third person. Hall v. 
Huntoon, 17 Vt. 244. Pangbom v. Saxton, 11 
79. 18 Vt. 589. 

294. A declaration counting upon a sale by 
the plaintiff to the defendant and a promise 



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thereupon to the plaintiff, is not sustained by 
proof of a sale by a third person of property in 
which the plaintiff had no interest, and a pro- 
mise thereupon to such third person for the 
lieneflt of the plaintiff. Hall v. JTvntoon. 

295. Though A takes an absohite convey- 
ance from B of his farm, but under an agree- 
ment to support B, and this for the purpose of 
enabling B fraudulently to obtain a pension as 
a reduced soldier, and though A afterwards de- 
nies the agreement and allows B to become 
chargeable to the town for his support, yet this 
does not entitle the town to an action, either at 
law or in chancery. Milton v. Story y 11 Vt. 
101. 

296. A suit may always be brought, either 
in the name of the party with whom the con- 
tract was made, or in the name of the party 
legally interested, — where the defendant will 
not be thereby embarrassed in his defense— as 
in ease of dormant partners, factors doing busi- 
ness in their own name, &c.— and it is of no im- 
portance, whether or not the the defendant un- 
derstood the relations of the parties, unless he 
has suffered loss by hemg misled. Maynard v. 
Briggit. 26 Vt. 94. 85 Vt. 502. iMpham v. 
Green, 9 Vt. 407. Waft v. Johnson, 24 Vt. 112. 

297. In all actions upon contracts, except 
sealed instruments, promissory notes and bills 
of exchange, the action may be brought in the 
name of the real party in interest and from 
whom the consideration moved. When, how- 
ever, the action is so brought, and not in the 
name of the nominal party, the other party 
may interpose any defense, which would be 
available against the nominal party, which ac- 
crues before the real party is disclosed to him. 
Cummtngtt v. BlaiJkkll, 43 Vt. 382. Smith v. 
Fotter, 86 Vt. 705. Lapham v. Oreen. 

298. Wliere, at the time a contract was 
made, it was understood by both plaintiff and 
defendant that the contract was l)etween them- 
selves alone ;~JTeld, that the plaintiff could 
maintain an action thereon in his name alone, 
although otlier parties were equally interested 
with him in the contract. Jlibbard v. MUls, 
46 Vt. 243. 

299. One who becomes a party to a contract 
only after its performance, and without consent 
of the opposite party, cannot join in an action 
upon it. Denniso7i v. Boyhton, 48 Vt. 489. 

300. Interests seyered. The president 
and professors of a literary institution were en- 
titled to all the tuition money received, which 
by agreement was to be divided among them in 
specified rates : and it was agreed that all the 
money collected should be deposited with one of 
their num1>er as depositary, or treasurer, with- 
ont authority to invest or use, and without being 
subject to charges, and that the interest of the 
parties in the fund deposited should be distinct 
and several interests, and not joint. Held, that 



each member was entitled to his several share, 
and that the depositary, after proper demand 
by one of the professors for his share, and refus- 
al, was liable to him therefor in an action of 
book account. JacJcman v. Partridge, 21 Vt. 
558. 

301. Three persons, appointed a committee 
by vote of a school district to repair the school 
house, distributed the job among themselves, 
each doing a part. Held, that each could recover 
against the district for the part done by him. 
Oeer v. School Dint, in Richmond, 6 Vt. 76; 
and see Satryer v. MetJi, Ep. Soe*y. in Jfoyal- 
ton, 18 Vt. 405. Rogers v. Vanby Universal- 
ist Soc'y. 19 Vt. 187. 

302. The defendant owed a simple contract 
debt to A and B jointly. All parties agreed 
that one-half should be paid to A and one-half 
to B. The defendant paid B his half. Held, 
that this worked a severance, so that A, in his 
own name, could recover for his half. Ambler 
V. Bradley, 6 Vt. 119. See Cvmmingn v. 
Blaiadell, 48 Vt. 882. 

303. So held, in like case, in an action on 
book, where the case stood upon the common 
agreement simply, without payment of the other 
share — it not being a matter of partnership. 
Parker v. Bryant, 40 Vt. 291. 

304. The plaintiffs agreed to take jobs of 
work and work together, and each to hire, as 
near as possible, an equal amount of help, each 
to be paid for his own labor, and to divide the 
profits on the help hired, nothing being said 
about the division of losses. One of the plain- 
tiffs engaged to do a job of work for the defend- 
ant, informing him that he and the other plain- 
tiff were in partnership, or connected in busi- 
ness. The work was done by the plaintiffs and 
their hired help under their agreement, in ref- 
erence to which the contract with the defendant 
was made. Held, that an action therefor was 
properly brought in the joint names of the plain- 
tiffs. Satryer v. Worthington, 28 Vt. 788. 

305. Defendant. Services rendere*! or money 
paid for the joint benefit of two or more, at the 
request of either of them, may be recovered of 
them jointly. Bains v. Bmtner, 10 Vt. 529. 

306. Held, that the plaintiff's suit was prop- 
erly brought against the one party with whom 
he contracted and on whose credit he performed 
the services, although there were others who, 
to the plaintiff's knowledge, had an equal or 
greater interest in the undertaking, and who 
had furnished the plaintiff funds in carrying it 
on. Stannard v. Smith, 40 Vt. 518. 

307. The real purchaser of goods for his own 
benefit is liable therefor, although he purchased 
them on the credit of another, with his consent, 
without disclosing the fact that he was himself 
the real party. Coverly v. Braynard, 28 Vt. 
788. 

308. In order to make one liable for services 



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performed for another, he must thereunto ex- 
pressly promise, or so conduct himself in mak- 
ing the employment, that the party rendering 
the service has a right to and does understand 
that he will l>e responsible therefor. Redfield 
V. Dana, 47 Vt. 15. 

309. G. 8, c. 80, 8. 78, providing that in ac- 
tions upon a contract, &c., against more than one 
defendant, judgment may be rendered against 
such as are found to be liable, &c., covers 
all cases of defendants in such actions, whether 
they are de8cril)ed and declared against as part- 
ners, or otherwise declared against on a joint 
contract; and a non-suit may be allowed as to 
such as are not liable, or a judgment in their 
favor on trial. Jieynolds v. Field, 41 Vt. 225. 
See Na4ifi v. Skhimr, 12 Vt. 219. Hvrllnirt v. 
Uendy, 27 Vt. ^^45. Prntern v. I'hayer, 30 Vt. 
361. 

2. Action and defemw,, as dependent upon 
demand,— expiration of eredit,— performance. 

310. Demand. A mutual agreement be- 
tween two, that the accounts of each may be 
paid by the work of the other, is valid and bind- 
ing as to accounts thereafter accruing, and re- 
quires a demand of payment and refusal, or un- 
reasonable neglect to perform the services as 
stipulated, in order to maintain an action. If 
such agreement included a past account, but the 
parties had acted upon it, the services of the 
other party may l)e first applied to satisfy that. 
UaviH V. Petit, 27 Vt. 216. 

311. Where a party stipulates to do a cer- 
tain thing in a certain specific event which may 
become known to him, or with which he can 
make himself acquainted, he is not entitled to 
notice unless he stipulates for it ; but when it 
is to do a thing in an event which lies within the 
peculiar knowUnlge of the opposite party, then 
notice ought to be given him before suit brought. 
Lamphere v. Cn/iten, 42 Vt. 175. 

312. Where a specific thing is to be done on 
demand, such as the delivery of property or 
performance of a service, the liability does not 
become fixed immediately on demand, but only 
on the party's neglect, after reasonable time, to 
comply ; and this question is always one of fact 
for the jury. [Applied to the case of an action 
upon an officer's rect»ipt.] Jameson v. Ware, 
6 Vt. 610. 

313. Where a demand was necessary in or- 
der to maintain an action; — Held, that a demand 
made after the issuing of the writ, but before 
service, affording an opportunity to comply, 
was sufficient. UaU v. Peek, 10 Vt. 474. 

314. Money paid by mistake, or overpaid 
upon a certain claim, cannot be recovered back 
by suit without previous notice and demand of 
repayment, when the mistake was not the de- 
fendant's and he did not, in any way, induce 



it ; and until then interest is not recoverable on 
such money. Stoddard v. Chapin, 15 Vt. 443. 
29 Vt. 157. 

315. Where money was illegally taken, the 
detention is unlawful and it may be recovered 
without previous demand. Henry v. Ches- 
ter, 15 Vt. 460. Babcoek v. Granville, 44 Vt. 
325. 

316. Where one has in any way wrongfully 
obtained the money of another by duress or 
fraud, no demand, liefore suit to recover it back, 
is necessary. Hinsdill v. White, 34 Vt. 558. 

317. The plaintiff sold the defendant certain 
property at a price stipulated, for which the 
defendant agreed to pay a sleigh, at a price 
stipulated, represented to be then at one Ts and 
to be taken there by the plaintiff— and an order 
on T for the balance. The defendant had no 
such sleigh, and this he knew. Held, that this 
was such a fraud as excused the plaintiff from 
making any demand of T for the sleigh or for 
payment of the order, and enabled the plaintiff 
to sue and recover the stipulated price of the 
property sold, without any demand. Harring- 
Um V. Wells, 12 Vt. 505. 

318. Where the plaintiff came to the de- 
fendant, and demanded a settlement for his la- 
bor performed under an agreement that the de- 
fendant should board and clothe the plaintiff 
for his work, and the defendant drove him from 
the premises, threatening bodily injury ;—Held, 
that this was such a denial of liability as ex- 
cused the plaintiff from making a specific de- 
mand of such articles of clothing as he needed, 
and was entitled to. Spencer v. Storrs, 38 Vt. 
156. 

319. In an action upon an account, payable 
in goods out of the defendant's store;— i3>W, 
that no demand was necessary before suit, when 
the defendant had stopped trade, and where 
the omission to call for the goods, before that 
time, was not an unreasonable delay. Brooks 
V. Jewell, 14 Vt. 470. 

320. In an action upon a contract whose 
validity had been established upon a bill to set 
it aside ;—Held, that the defendant in that and 
this action could not defend on the ground of an 
attempted repudiation by the plaintiff, the de- 
fense of the former suit being a constant ten- 
der of the defendant's readiness to perform, and 
a waiver of demand, if demand were necessary. 
Sampson v. Warner, 48 Vt. 247. 

321. Where the agreement is to give time of 
payment upon the debtor's giving a note with 
surety, and such note is not fumislied, the cred- 
itor may sue at once on l)ook, or in general as- 
sumpsit. A different rule is said to prevail 
where the debtor is only required to give his 
own note. Bice v. Andrews, 82 Vt. 691. HaU 
V. Jones, 48 Vt. 227. 

322. Where the promise is to do a collateral 
thing on request, the request is parcel of the 



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contract, and no right of action arises until a re- 
quest be made. So, if no time be fixed in the 
contract, or by other agreement of the parties 
either expressed or implied, for the doing of the 
thing, a request is essential to the cause of ac- 
tion. Prentm, J. in Boody v. Rut. <ft Bur, R. 
Co. (U. S. C. C), 24 Vt. 660. 

323. In the case of a mere executory con- 
tract to sell and to buy on a certain day, and 
where each promise is the entire consideration 
for the other, neither party can maintain an ac- 
tion without averring and proving a readiness to 
perform on his part, at the time and place, or 
an excuse by the act of the other party. Perry 
V. Wheeler, 24 Vt. 286. 

324. Credit. On the purchase of goods, 
each party understood that a credit of six months 
was given, and that the credit of a third party 
was pledged for tlie purchase. This last suppo- 
sition turning out to be a mutual error ; — Jleld^ 
that the seller could not. on discovering the 
mistafae, maintain an action for the price of the 
goods until the expiration of the six months. 
Th^er v. BcUUm, 32 Vt. 284. 

325. No action can be sustained upon a con- 
tract within the time stipulated for its perfonn- 
ance, though the credit was fraudulently ob- 
Uined. Fisher v. Br<mn, 1 Tyl. 387. 14 Vt. 
9. 18 Vt. 235. • 

326. The plaintiff sold the defendant a quan- 
tity of marble to be used by him in the construc- 
tion of a walk for the U. S. government, for 
which he was to pay when the work should be 
accepted and he should receive his pay from the 
U. S. Held, that the plaintiff's demand be- 
came payable, not when the defendant IxHjame 
entitled to his pay from the U. S. by acceptance 
of the work, but whenever thereafter by due 
diligence he might have received his pay from 
the U. S.; and delay of payment by the U. 8. 
having been occasioned by the act of the de- 
fendant, Iteld, that the credit stipulated with the 
plaintiff had expired, and that this action, 
brought before the defendant had received his 
pay of the U. 8., was not premature. Vt. Mar- 
ble Co. V. Mann, 36 Vt. 697. 

327. Performance by plaintiff. Where 
the plaintiff was to keep the defendant's cattle 
at a certain bam and to feed them on the hay 
therein (whicli the defendant saw and exam- 
ined before making^the contract), and agreed to 
keep them as well as he could ** considering the 
hay and the chance ;" — Held, that no abatement 
should be made from the price of keeping on 
accouct of deterioration of the cattle in the 
keeping, the auditor having found that the 
plaintiff **u8ed ordinary care in taking care of 
and feeding them — feeding them as often and 
as much at a time as people in general feed their 
cattle. " Eastman v. PaUermm, 38 Vt. 146. 

328. Where the plaintiff had contracted to 
build a road, in a particularly specified manner, 



to be paid for *'onits completion and accept- 
ance by the agents of the town of 8," and he 
completed it according to his contract, but such 
agents had wrongfully refused to accept it ;— 
Held, that he could recover for the work done. 
Smith V. Smith, 45 Vt. 433. 

329. A party receding from negotiations, 
and refusing to be bound by them, cannot re- 
cover for the performance of acts which would 
have constituted a part performance of an entire 
contract which would have resulted from the 
negotiations, if perfected. Congdon v. Darcy, 
46 Vt. 478. 

330. Oommiflsions. The plaintiff contract- 
ed with the defendants to negotiate for them a 
loan of $100,000, for a commission, and did 
secure an agreement for such loan with one H, 
on condition that what the plaintiff's brother 
was owing II should constitute part of the 
sum ; but as this was expt?cted to be cashed by 
the plaintiff to the defendants. Held, that this 
was a sufllcient compliance with the contract 
on the plaintiff's part, to entitle him to an 
action for refusal by the defendants to carry out 
the contract. Durkee v. Vt. Central R. Co., 
29 Vt. 127. 

331. Reward. F was employed by the re- 
latives of a murdered man to trace out the mur- 
derer and procure his conviction. F sent out 
messengers for this purpose and directed one of 
them to request S, a deputy sheriff, to watch 
for and arrest the murderer. The message 
reached 8, not directly from the messenger, but 
through one L. The murderer was arrested by 
8 and was convicted. 8aid relatives had of- 
fered a reward for the arrest and conviction of 
the murderer, but F did not know of the offer 
when he sent out his messengers, and 8 did not 
know of it when he made the arrest, or that F 
was acting in the matter. Held, that 8 was 
entitled to the reward, and not F. Runaell v. 
Stewart, 44 Vt. 170. 

332. Agreement not to sue. An agree- 
ment not to sue within a particular time, or 
never to sue one of several joint contractors, 
does not operate as a release. Even the party 
himself, with whom the agreement is so made, 
cannot use it as a defense to any action in 
which his name is necessarily used to recover 
judgment, in order to collect the debt of the 
other debtors. Spencer v. Williams, 2 Vt. 209. 
Pinney v. Bugbee, 13 Vt. 623. 

333. Performance by defendant. The 
defendant, under a contract to complete a mill 
in a workmanlike manner, did the work imper- 
fectly, but claimed to have performed his con- 
tract. The plaintiff afterwards put the mill in 
condition, and brought his action to recover the 
expense of such reparation. Held, to be no de- 
fense that the defendant, after he had broken 
his contract and it had ceased to be executory , 
offered to make such repairs at his own ex- 



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pense, but the plaintiff refused him. Clifford v. 
Richardson, 18 Vt. 620. 

334. Where the plaintiff sold goods to the 
defendant which he agreed to pay for in a cer- 
tain note which he held a/^ainst a third person, 
and he afterwards refused to deliver the note ; 
—Held^ that he could nol, in an action of book 
account afterwards brought, offer and claim an 
allowance for the note. Stevens v. Smithy 21 
Vt. 90. 

335. Where the defendant owed the plain- 
tiff a debt payable in certain mechanic's work, 
but refused to do the work at a reasonable 
price, demanding more ; — Held, tliat the plain- 
tiff could recover the amount due, as cash. 
Woodman v. Stearns, 23 Vt. 655. 

336. The defendant in la's© made with the 
plaintiff the following written agreement: 
**ReceivtHi of Ira Cameron 50 dollars, in part 
for 200 bushels of corn this day sold him, of 
which I have delivered 20 bushels, and the bal- 
ance (180 bushels) is due him on demand at 
my mill, at 75 cents per bushel, to l)e paid for 
on delivery." Within some three months the 
plaintiff received and indorsed upon the eon- 
tract 94 bushels more, and paid therefor accord- 
ing to the contract. Nothing further passed 
between the parties until 1855 (5 years), 
when the plaintiff demanded the residue of the 
200 bushels, offering to pay the 75 cents per 
bushel ther(»for. The defendant refused to de- 
liver the corn, the same being then worth 
!|fl.88 per bushel. In an action for the non- 
delivery, the county court construed the con- 
tract as requiring the plaintiff to call for the 
corn within a reasonable time, and, finding that 
he had not done so, gave judgment for the de- 
fendant. The supreme court Md, that the de- 
fendant was not entitled to judgment on thin 
gnmndy since the defendant had never request- 
ed the plaintiff to take the residue of the corn ; 
that the case might have l)een properly left to 
the jury upon the question whether the plain 
tiff had not abandoned the contract. The 
court, however, affirmed the judgment, by giv- 
ing to the contract this in(er|)retation,— that the 
contract had reference to no specific 200 bushels 
of corn then existing or set apart, but only en- 
titled the plaintiff, within the limits of 200 
bushels, to take at his option, more or less, and 
that he had exercised his option, when he took 
the last parcel and paid for it, not to take any 
more, wliich was acquiesced in by the defend- 
ant ; and that the contract had been fully per- 
formed on both sides, according to the practi- 
cal construction which both imrties gave to it. 
Cameron v. Wells, 30 Vt. 633. 

337. Where the plaintiff, a sub-contractor 
of the defendant for the construction of a sec- 
tion of a railroad, was prevented from com- 
pleting his contract by reason of the further 
construction of the road being enjoined in chan- 



cery, without the fault or procurement of the 
plaintiff ; — Held, that the defendant was liable 
as for a breach of his contract, although such 
injunction was procured without his fault. 
DooUttle V. Nasli, 48 Vt. 441. 

3. Action general, or special, 

338. No general action, much less the book 
action, will lie for the breach of a special contract 
remaining unexecuted ; but only a special action 
upon the contract, in which the party may re- 
cover his damages. Smith v. Smith, 14 Vt. 440. 

339. No action lies to recover for articles 
delivered or services rendered in performance of 
a special contract, while the contract remains 
open and not rescinded. Bailey v. Bailey, 16 
Vt. 666. 

VI. Damages.— Rkcoupmknt. 

340. General rule. The law, as tke rule 
of damages for breach of a contract, requires 
that the defendant make the plaintiff whole ; 
that is, he shall place him in as good a situation 
as he would have been in by performance. Fer- 
ns V. Barlmr, 2 Aik. 106. 6 Vt. 421. 

341. In an action for services, the court in- 
structed the jury that it was the duty of the 
plaintiff to make the sum in damages, which he 
was entitled to recover, reasonably certain ; 
that if they found a difficulty in determining 
this, it would not preclude a recovery, but it 
was their duty to see that the uncertainty did 
not benefit the plaintiff— that this should oper- 
ate against him, and in favor of the defendant. 
Held correct. Mattocks v. T/yman, 16 Vt. 113. 

342. Instances. In an action for breach 
of an agreement to kiln-drj', grind and pack a 
quantity of com, at a stipulated price, averring 
an unskillful performance, whereby the plain- 
tiff had sustained damage, where the defen- 
dant made no proof of non-payment of the 
price, nor set up a counter claim, the court 
charged that the damages should be assessed 
without regard to the sum stipulated to be paid 
for the labor. Held correct. Foote v. CaiMn, 

6 Vt. 44. 

343. If the maker of a note procures a per- 
son to purchase it and agrees to pay therefor a 
certain sum, but afterwards denies such agree- 
ment and refuses to pay as agreed, such person, 
as indorsee, may recover the full amount of the 
note, though he purchased it at a larger discount 
than the sum named. Raymond v. Williams, 

7 Vt. 280. 

344. If one agrees to pay a certain sum in 
specific property and fails to pay, he is liable 
for the full sum stipulated, though the property 
is worth much less, — because the parties have 
stipulated the damages. Harrington v. Wells, 
12 Vt. 505. 



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345. The defendant received of the plaintiff 
a quantity of hay and took a bill of sale of the 
same, describing it as about 25 tons, being all 
the hay in certain barns and in a certain stack, 
at t4 per ton, carrying out the price at $100, 
with a receipt of payment appended. At the 
same time the defendant executed a receipt to 
the plaintiff for the hay, to be disposed of to 
the best advantage and accounted for. The de- 
fendant having appropriated the hay to his own 
use, claiming it as his own ;—IIeld, in assump- 
sit for goods sold, that the plaintiff was entitled 
to recover for the actual quantity of the hay at 
its true value, and was not limited by the quan- 
tity and price named in the bill of sale. Crane 
V. Th<Hfer, 18 Vt. 162. 

346. In an action against a professed mill 
Wright for damages sustained by his not con- 
structing a mill in a workmanlike manner, ac- 
cording to his contract ;—Heldy that the plain- 
tiff, prevailing, was entitled to recover his neces- 
sary expenses of putting the mill in such con- 
dition, after the defendant claimed to have 
completed his contract ; and also what the use 
of the mill would have been worth to the plain- 
tiff, more than it was, between the dates when 
the defendant claimed to have completed his 
contract, and a reasonable time for the making 
of such reparations. Clifford v. Hichardttany 
18 Vt. 620. 

347. Oontribution. Where one of several 
joint contractors pays the whole debt, he may, 
in a suit at law for contribution, prove the in- 
solvency of any of the joint contractors, and 
recover an aliquot part of the whole debt paid, 
having regard only to the number of solvent 
contractors. Mills v. ffyde, 19 Vt. 59. 

348. Other instances. In an action against 
the assignor of a promissory note, signed by 
two, upon a warranty of its validity, where 
one of the signers was proved to have been in- 
competent to contract by reason of insanity ;— 
HMy that in estimating the damages, the value 
of the note as against the other signer must be 
considered. Thrall v. JVewell^ 19 Vt. 202. 

349. Where a bond was conditioned that 
the obligor should convey certain land to the 
obligee upon the performance of certain ser- 
vices by the obligee, and the obligee tendered 
the services, which the obligor wrongfully re- 
fused to accept, and refused to convey ;— 
Heldj in an action for the breach, that the value 
of the land was not the rule of damages, but 
that the plaintiff was entitled to recover only 
what he bad lost by being prevented from com- 
pleting the execution of his contract. Board- 
man V. Keeler, 21 Vt. 77. : 38 Vt. 83. 86 Vt. 
720. 

360. The defendant contracted with the 
plaintiff to carry a barge load of peas from 
Canada to New York, but by reason of his 
want of care and diligence he got them no fur 

12 



ther than Burlington, where the barge got frozen 
in the ice, and could not be moved for that 
season. Tlie defendant refusing to forward the 
peas by railroad, or to deliver the peas to the 
plaintiff except upon payment of freight, the 
plaintiff replevied them, and sent them to Bos- 
ton for a market, which was a judicious dis- 
position of them. In an action for breach of 
the contract to carry io New York;— Ileldy 
that the plaintiff was entitled to recover the 
difference between the net sum realized from 
the sale in Boston, and the net sum he would 
have realized from a sale in New York, as de- 
termined by the market price there, at the time 
when the peas would have arrived there, if the 
defendant had forwarded them according to his 
contract. Laurent v. Vaughn, 30 Vt. 90. 

351. In an action for labor in the building 
of a railroad, under a contract for payment of 
76 per cent cash, and, on the completion of the 
job, 25 per cent in the stock of the corporation 
at par, it appeared that the excess of cash pay- 
ments made above the 75 per cent was more 
than the value of the stock payment of 25 per 
cent, at the time it became payable by the 
contract. ITeldy the contract being silent on 
this point, that the payment of such excess in 
cash was voluntary and only a vmiTcr of the 
right to pay so much in stock ; and that the 
plaintiff was entitled, on refusal to convey the 
stock, to recover the value, at the time when 
payable, of the balance of the 25 per cent of 
nominally par stock. Jones v. Chamberlainy 
30 Vt. 196. 

352. In an action for the non-delivery, ac- 
cording to the contract, of goods sold, where 
payment was not made in advance, the rule of 
damages is the difference between the contract 
price and the market value at the time and 
place of the promised delivery. Worthen v. 
Wilmot, 80 Vt. 556. 

353. Quare, whether the rule is different 
where payment is wholly made in advance. 
Senible, it is not different where the advance 
payment is but partial. lb, 

354. Heldy that this rule is not varied by 
the payment of the full price in advance. Hill 
V. Smith, 32 Vt. 483. 

355. The only general damages which the 
purchaser of chattels can recover for non-deliv- 
ery, whether the price be paid or not, is the 
difference between the contract price and the 
market value at the stipulated time and place 
of delivery, together with the money paid, if 
any, on the contract. Copper Co, v. Copper 
Mining Co., 83 Vt. 92. 

356. A party claiming special damages from 
breach of contract, must so conduct the busi- 
ness as to sustain the least damage practicable ; 
and cannot recover for a loss occasioned by his 
own imprudence or negligence. Ih, 

357. Special damages cannot be recovered 



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for breach of contract, unless they are the nat- 
ural and ordinary, and therefore the known and 
necessary result of the breach, or were fairly 
within the contemplation of the parties at the 
time of entering into the contract. Lb. 

358. The defendant rented to a tenant a 
house situate on the line of a road, which the 
plaintiff had contracted with the defendant to 
build and complete by a day specified — the ten- 
ant, in his hiring, rel3ing upon the road being 
completed as agreed. By reason of its not be- 
ing so completed the defendant was obliged to 
discount to the tenant one-half the agreed rent. 
In an action to recover for the building of the 
road ;—Ifeldy that the damage thus claimed to 
have been sustained by the defendant was too 
conjectural and remote (as stated) to be regard- 
ed as damages naturally and necessarily result- 
ing from the delay in completing the road, so 
as to be allowed by way of recoupment. Smith 
V. Smithy 46 Vt. 488. 

369. But where the defendant was obliged, 
by reason of the road not being completed as 
agreed, to build a winter road instead for his 
necessary accommodation ; — Heldj that the ex- 
pense of building such winter road was proper 
damages to be allowed in recoupment. lb. 

360. Where the defendants were bound by 
contract to repair a drain on premises leased by 
them to the plaintiff ;—iy<pW, that if, on re- 
quest, they refused to repair, the plaintiff 
should have made the repairs, and the expense 
would be the measure of the damages; but 
where the defendants, after notice to repair the 
drain, promised from time to time to do so, but 
neglected, and so kept the plaintiff from doing 
it,— held J that the plaintiff could recover his 
entire damages for the breach, although exceed- 
ing the cost of the repairs. Kej/es v. Slate Co. , 
84 Vt. 81. 

361. Where the plaintiff was prevented by 
the defendant from completing a contract with 
him for the manufacture of certain machines ; 
^HeUL, that in estimating the damages for a 
breach of the contract, the value to the plaintiff 
of the unfinished machines should be reckoned, 
— the property not having vested in the defend- 
ant. Allen V. Thrall, 86 Vt. 711. See Board- 
man V. Keeler, 21 Vt. 78. 

362. The defendant contracted to purchase 
of the plaintiff a specified number of bushels of 
potatoes at a specified price per bushel, and 
afterwards ordered the plaintiff to stop pur- 
chasing, and declined to receive any more. In 
an action on the contract ; — Held, that the de- 
fendant was not liable to pay for potatoes there- 
after purchased by the plaintiff to fill the con- 
tract, nor for any loss thereon by freezing or 
rot ; and was liable only for the difference be- 
tween what it would have cost the plaintiff to 
procure the potatoes, and the contract price. 
Danfarth v. Walker, 40 Vt. 257. 



363. The plaintiff and defendant were inter- 
ested, in different proportions, in a promissory 
note in the hands of the defendant, payable in 
money and well secured. The defendant, with- 
out consent ef the plaintiff and without neces- 
sity, took a colt in part payment, which he 
kept on expense until it died. Held, that the 
plaintiff was not obliged to share this loss, but 
the defendant was liable for the plaintiff's full 
share of the note. Childs v. Boyd, 48 Vt. 682. 

364. The plaintiff had purchased four un- 
divided fifths of certain land, but failed to ob- 
tain the other fifth because the defendant pur- 
chased it in violation of his contract with the 
plaintiff not to do so ; whereupon the plaintiff 
procured partition by the probate court. In an 
action on the contract ; — HM, that the true rule 
of damages was what such one-fifth was worth 
more than what the plaintiff would have had to 
pay for the same, except for the defendant's inter- 
ference and breach of contract ; and that it was 
error to include the expenses of the partition. 
Morrison v. Darling, 47 Vt. 67. 

365. In actions upon debts due in coin, the 
value in currency of the amount of the debts in 
coin, when due, is not the true rule of dam- 
ages. Tonrntsend v. Jennison, 44 Vt. 815. See 
DaviM V. Field, 48 Vt. 251. 

366. Entire damages. Under a contract 
between a turnpike company and a town, by 
which the company agreed to support a certain 
highway bridge of the town for twenty years, 
in consideration of $26 a year to be paid by the 
town, the company performed the contract for 
eight years, when it refused to proceed further. 
Held, that the rule of damages for such breach 
of the contract was the difference between what 
the town had agreed to pay, and the probable 
expense of performing the contract, and thus 
assess the entire damages for the remaining 
twelve years. RoyaUon v. R. <fe W. Turnpike 
Co., 14 Vt. 811. 

367. The true criterion, whether, in an ac- 
tion upon a continuing contract, damages can 
be recovered for a non-per