Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1845-02-28

Bennett, Justice, in relation TO the last point dis
sented, and remarked that if all present that
could act and did act, their acts were binding, al
though the notice Of the meeting was defective,
because in any event no others have a right 10 act,
and no rights were infringed.
Williams G. j., remarked that If the presence OF
all the voters could wave defect in the notice, il
could wave the notice itself.
Newcomb Ss Brown, vs.. Peck 81 Pomeroy.-
This was an action upon judgment obtained in
the Court of Common Pleas, Worcester county,
Mass.
The defendants filed the following pleas-Ist,
MI Tsci Record. I'd, Mi Debit Sd, That the de-
PENDANTS were not served with process in the ORR
gina suit, nor had any notice thereof, and never
appeared thereto. 4th, That one ID. T. Brigham,
without the knowledge or authority Of the defend
ants, entered his appearance, wbereuPon the Clerk
entered 'lhe defendants appeared 9th, The said
Court had no Jurisdiction over the persons oil the
defendants.
The plaintiffs took issue upon the LIST plea, and
demurred TO the others, oyer Of the record having
been prayed and had by the defendants in their 4h
plea.
The record stated the appearance of the defend
ants in the original suit. The County Court gave
judgment for the plaintiffs all the issues, and the
defendants excepted
The case argued at length by G. |. Walker
for plaintiffs, and Royal Tyler for defendants.
The counsel for defendants urged that as G. w.
Pomeroy, one of the defendants has been sued in
the original action by the name of - Pomeroy,
and in the present suit C w. Pomeroy, it was a IA
ta variance that the plaintiffs should have replied
the estoppel to the Sd and 9th pleas rather than
have demurred, and that they should be allowed TO
show that the appearance stated in the record was
unauthorized.
Williams, G. j. The LIST issue is proved. The
msnomer could only have been taken advantage
of by plea in abatement. c. w. Pomeroy, and -
Pomeroy, are connected by sufficient avermeDts.
II has been repeatedly decided by the Supreme
Court of the United States, and Of this State, that
MI Debit is bad plea TO judgment from another
State.
A profert of the record having been made in
the declaration, and oyer having been craved and
had, the record became part Of the declaration,
and thus the matter Of estoppel appearing from the
pleadings it not necessary 10 reply ii TO the I'd
and 9th pleas.
The principal question is, what is the effect of
judgment from another State, and what pleas may
be raised thereto The learned judge then com.
men,ed upon the various and conflicting cases in
the several States, and expressed il as his opinion
that such Judgments should receive precisely the
same credit in every respect tina, they entitled
TO in the State where rendered, and thought that
the decisions tending to that result. But he
said il had been decided in this State in an unre-
ported case, and in other States, that pleas like the
Sd, 4th, and 9th in this case good. But another
question is, the record Of such judgment be
tradccd for the purpose Of showing want urisdc-
ton in the Court renderingit In New York il has
been allowed but the reasoning Of the Court in that
case (Staibuck vs.. Shunway, 5 Wend. Rep) seems
soPhistcal. II the record can be contradicted in
one thing, why not in another. Ifyou can contra
dict the appearance, why not the officers return.
We think the record concludes the party and he
cannot be allowed to contradict it. The Judgment
of the County Court is affirmed.
Daniel Fisher, Elk. &c. Of Hannah Holland, VS..
Pardon T. Kimball and others. This is case that
came up from the Probate Court by appeal to the
County Court, and involved the right of married
women TO make wills Of their separate property
Sometime about 1924, the deceased, then Mrs Fish.
er, Widow Of Daniel Fisher of Newfane, a woman
W ptoptiD1 III Ol
Walpole Soon after, written agreement was en-
tered into between Dr. Holland and wife, reciiing
that before marriage il had been agreed between
them that Mrs Holland should have the entire con-
troll and disposal Of all her sole property, and con-
frming that contract, Dr. Holland releasing all
claim thereto In 1893 Mrs Holland made the will
in question, her husband first executing written
license 10 that effect She died, and the probate of
her will contested both in the Probate and
County Courts, by the heirs at law, both on the
ground of mental incapacty and legal inability
The will was established, and the question of legal
ability was brought up by exceptions.
For plaintiff, d. Kellogg. For defendants, w.
C. Bradley.
Redfeld, Justice. The authorities concur in the
right OF married women to will their separate per-
sonal property, with without the consent of the
husband, and by our Statute the right is clearly
given. think she may even will her separate re-
al estate.
The judgment Of the County Court is affirmed
ID. Ellis VS. d. Howard and others This was
an action of trespass The defendants justified the
taking under two writs of attachment against one
Honghton, claiming that the property 10 question
belonged 10 him. Plaintiff claimed il by virtue of
an assignment from Houghton.
AT the trial below, the plaintiff offered in evil
dence the deposition of said Houghton, 10 which
defendants objected, but the Court admitted it,
The plaintiffs then offered as evidence Of the talk
ing, the two writs under which defendants justified
The defendants objected TO the admission of the Sec
ond writ, as it tended to prove distinct and separ
ate taking, but it was admitted by the Court.
The defendants having proved that all the rights