Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1847-01-22

of it was to be considered in connection with, and as
controlled by the agreement of the defendant endorsed
upon ii to procure Stacvs note for the amount. And
not having been fulfilled, the charge was correctly dis
allowed Iudgmci of county court affirmed.
JrnmL SMITH v. WV. ~ liYDE-1his was an ac-
ton on book TO recover for services rcnderrdas ply
stefan. to defendants father and mother. 1he Audi
ter reported that the plaintiff commenced his services
upon the 18th OF September, 1913 upon an agreement
with the father that unless cure was Affected, nothing
was to be charged After four five visits had been
made on the 10Th of September, the defendant
ted writing to the plaintiff agreeing to be Responsible
To him ior attendance on his lathcr No other special
contract was made. The Auditor further reported
that the patient rather injured than benefited by
the services OF the Plaintiff and that the services to the
mother were rendered upon the same agreement. and
with the same result The county court rendered judy
ment for the defendant and tue plaintiff excepted.
The case was argued by SnArrrR TOR plaintiff, and
a. PECK Tor defendant
The court, per Bennett J., sai that the plaintiff
commenced his services upou the liability OF the father
alone aud upon express agreement no cure, no pay
Afterwards the undertaking OF the defendant was Civ
en- This was entirely collateral To the agreement of
the father. and IS merely giving the defendants credit
in aid OF his fathers. Ii binds the defendant only to
the same extent that the father bound--to pay
when cured And it is essential to an accessory obi
cation like this that the original and principal obliga
ton should be valid. The plaintiff having failed to
cure, by the terms oi his agreement is not entitled to
payment Judgment of county court affirmed.
MoRToS & CLARKv EpwlN. This was action
of ccctmeni for land in Winston. The plaintiff s
! y
upon Judgment OF Justice OF the peace The Justice
who rendered the judgment was town clerk OF Willis
ton. On trial the plaintiff introduced copy OF rec
ord OF the levy Of tue execution from the Office OF the
town clerk purpOring to have been made within the
lie of the execution. To the admission of this copy
the defendant objected and called the town clerk as
witness to prove that the record not made until
after the lie o. the execution and after the commence
mcn OF this suit The plaintiffs objected to this es-
mony, bnt it was aduicdb by the court and the town
clerk testified that the execution was received bv him
for record within lis liie and that he made n minute
upon it accordingly both as town clerk and ma gs-
tratr But that 1t was not actually recorded BY hin ms
a Justice. (though it was "a town clerk until after
the life OF the execution and after the commencement
OF this suit The county court decided upon these facts
that the action could not be maintained, and verdict
having been rendered Tor the defendant, the plaintiffs
excepted.
The was argued by kASsoy for the plaintiffs and
SMALLEY q PHrIfs for the defendant
The court. per Bennett j., held that the Justice was
properly admitted 10 testify as to the time when the
record was actually made, tins did not tend to i'm
peach vary the That under the statute pro-
vision respecting lcyies ON real estate the title did
pass until the levy was actually recorded both in the
town clerks Office ana in the office from which it is
sued And that this levy not being recordeduuti ael
the commencement II the suit. the record having
relation back to the time OF the levy bu, passing the
Tie only from the time OF the record And the alorit,
OF the court intInatcd an opinion without however de-
Gliding the question that levy OF execution is not
valid TO pass the title OF land unless actually recorded
at length IN both offices within the lite OF the execution
Judgment OF county court affirmed. HALL J. concur.
red III the Judgment OF the court but dissented from the
opinion expressed on the latter point, giving his
/ ous at length.
GIo. a. ALLEN V. PATRICK CARLY. and ai-As.
snmpslt upon receipt executed by the defendants tc
p'anui as sheriff, Tor property attached by him,
suit IN favor OF one Weller judgment recoverc,
IN the SUIT on which the property attached, in the
supreme court, The court rose at the term when the
judgment was rendered the sixth OF January which
was on saturday. On Monday, the eighth, execution
was issued and was put INTO the hands OF II Ferris who
/ la n ala ~,
demand was made by Nun on the seventh OF February
upon Allen and subsequently and within the life OF til,
execution by Allen upon the defendants. The plain
TIL ON trial offered Ferris witness to prove the de
nand Oh Allen. He was objected to by the defendants
as Interested 10 prove the demand made, being liable
to the creditor II 1t was not but admitted 10y tn,
court 1t appeared that portion of the property en-
bfaccd IN the receipt, was the property OF Weller the
plaintiff IN the SUIT, and had been subsequently taker
by him. nor this portion the plaintiff did not claim tt
recover / he value OF the whole property was statet
in the receipt, and the defendants offered to show tn
actual value the remainder OF the property not takel
by Weller THIS evidence was cxcudcd by the court
who decided that the valuation OF the property in tn
receipt could not be- varicdb by paro testimony but tina
the actual value OF that part o the property belongn.
to Weller, should be deducted from this valuation
Inc court also decided that the demand on Allen anC
on the decndants was made in season TO eutitle tn,
plhhtil to recover. And a verdict having been re
turned Tor the plaintiff for the amount OF the udnen
aGd interest, the d,cnIent- excepted
| The case was argued by SNALLEY & PHELPS for tn,
painful and ~ l'EcR IL kissoN for the dcicndcnis
ne courl, per HALL j held that Ferris w S prop
cry admitted Us witness, his interest il any ben!
remote ana contingent and not affected by the resui
! OF thlS sult. IInt demand on the ccrIpers within
hry days Wer judgment was not necessary. provide,
| demand was made on the officer within Thirty days
ana ON the Iecclpiers within the lie OF the execution
MAJ tht statute having provided that "tIc day o.,
'"nch the party should first by law without leave d
the court, be eu,lcd To execution, should be deem
FED the Time OF rendering the Judgment Tor the pur
poses OF holding property &C. the court rising ON Sat
II . tn
| until tn" Monday following. Consequently the sun
day intervening should not be rcckone as one of tn,
ihry days ifom the time OF the rendition Of the ulg
lneht mat the rule Tor computation o. time i, WhtI
tn computation Is from date, the day OF date
me ne Is to be computed exclusive OF tue day, bu
whenirom an act done, inclusive. Tha;upon this ruI
the DAY IN winch the execution issued, being exclude
from the computation, the demand was made on A.lc
within the The thirty days and in season That III
rule claimed by the defendants 70 the valuation
the property was not correct nor was the rule adop,r
By the court. That the court should have deducte
from III valuation IN the receipt such proportion
thu whole Us the portion taken away constituted. in
stead Of the actual value OF that portion. And tins
though tins rule would not materially alter the rcsu
IN TINS case II must BE- established the general u
and new tra! granted on that ground. BENNETT ]
dissenting.
FLrrcnGuv BrLrows-rq CIance,v-Bnl 10 for,
close monsaTe-Ihe defendant claimed title in VII
tue OF levy nl an execution against I'll, Gators NOR
gag2r, on which the time for redemption allowed b
, law had expired. The defendant had made a prevo,
levy, but finding the land ncumbercd by n prior
tnchment made motion, with notice, and m appca
ance, 10 the court whence the process issued, to s.
aside the rst levy and for alias execution whic
was granted and the alias execution amounting
500, was levied on land for Ssi being $50 too muc
and IN recording it in the Town Clerks Office the ex,
cuiion was recorded by mistake, issuing jud!
nrut OF 1872 instead o 1871 as was the tact but Il
= Town Clerk had corrected his record, though not Il
|, after the tive months allowed for n lien had expired
Three points were made-lst Whether the nlit
n execution wos properly ssundl 81 Whether the L
d " was r9id as being too large and Sd Whether
e VOID Tor beng ulprricctly recorded
| The CHANCELLOR held it void below, and it came
!. this court by appeal
e The case argued by A. PECK for Orator al
II kASSuN ior defendant
The court, per ROYCE j. held LIST That the ali,
execution was properly issued though with some hes
mtion; I'd, That the levy void for being too lar!
SEQ or about }. per cent, not coming within Il
maxim de miniHis &c, and it not app airing To
any small mistake OF computation of the officer: 3
That 1t was also iHmoper'y recorded, and for IN
cause nso void the defect not being cured by the su
| sequcnt amendment OF the five months
| Renamed with an order to affirm the decree o. Il
&c Chancellor
~ \ GUINnoN Y. PERKINS & PARTRIDGE T Ms was
Is acton u assumpslt upon luint and several promi
IS sorry note, gwen originally by the deiendruls TO G.
r Martin, aud 10y HIM transferred 10 the plan tiff III
1t note had condition annexed providing that SAID VI
i I'm should pay oil all the membranes upon crria
1 lands, excepting n specified mortgage. The drciar
n ton originally Was in the ordinary form upon prom
lsory note and continued no statement OF the conc
: ton annexed. The county court upon motion PERM
T. I'd amended counts 10 he fled containing statcmc
c OF the condition and uyerncns that It had been con
u piled with aaj an express promise 10 pay the plai
l.. Ia,