Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1848-04-14
CURT GALE II. LAR.
SUPREME COURT, WIYDHAM COUNTY.
Reported for the Free Press by gentleman Of the Bar


SroDDARD rs TARBLE-This was an action OIL the
against the defendant constable OF Grafton Tor
neglect IN not serving writ in due season. Verdict
below for plaintiff The only question raised by the
bill OF exceptions was, whether the defendant was
bound to serve the writ put into his hands The de-
tcns, relied on that the writ had once been served
by the defendant upon the original defendant therein.
and his return made thereon, but the plaintiff believing
that there was fatal defect N the writ by reason OF
mistake in making 1t returnablc at the county court
next be holden c. on the third Tuesday OF May"
when it should have been the " second Tuesday ct
April, altered the same writ without the knowledge
OF the defendant therein, by Inserting new date and
the proper day, and handed the writ thus al
tered to the defendant tor service, and at the same
time handed to the defendant written notice OF the
dsccntnuance of the first suit, 10 be handed 10 the
defendant in The writ, before the altered writ was
served upon him.
For plaintiff, c |. Walker
For defendant, w. c. Bradley.
HALL, j. The rule OF law is that sherifis and
stables are not excused Tor not serving any process put
into their hands unless it be roid Mere furnishes
regular upon its face and Slowed jurisdiction, Whe,h
er advantage night not have been taken the altern-
ton bY plea i'll abatement, might deserve different
consideration 1t furnishes excuse TO the officer
Judgment affirmed.
BURGESS as, GATES erecutrir Of Gates-This was
q bill In chancery. The bll, answer and testimony
developed the following facts The plaintiff had
large claim against one Howe, OF Lunenburgh which
he sought IN part 10 satisfy by setting off on the exc
cutIon farm IN Dalton \. II. The defendants tes-
at9r claimed said farm by prior deed from Howe,
and was in possession before said levy. Plaintiff
broHght wit OF entry in New Hampshire, and re-
covered possession OF the farm upon the ground of the
fraudulent character Of the deed to Gates Gates
brought writ OF review, which was pending at his
death. Commissioners were appointed to adjust
claims against his estate After the time for the pre-
senlation OF claims had elapsed nonsnt was entered
in the writ OF review by the defendant Wlhin a
year from that time the plaintiff made 4 demand upon
the defendant on the claim now prosecuted according
to the statute regulating contingent claims the defen
diht having an abundance OF assets. The bill is
brought to recover mesnc profits from the time OF set
OH To plaintiff until he came into possesson-for inu-
ncs done to the farm by cropping &c and tor
costs and expenses incurred in consequence OF The
fraudulent conduct of Gates in settini nm the decd
nom love lhc defendant denied any actual fraud
and couended that the claim against Gates died with
h- person. and that it it did not 1t was forever barred
1t not having been presented To the commissioners.
The plaintiff urged that, in this State the cause of
acton survived by statute, and that the Ter tori pre
vailed, and that the claim being continent nv III.
pendency OF the wit OF reyicus was not proper TO he
allowed by the commissioners. The bill was dismis-
sci by the chancellor, and appeal taken to this
court. ~ w "'''
REDFIELp, J. We think the cause of action sur.
VNts-the Ter tori prevailing; but the claim was no,
contingent and should have been presented before thr
commissioners, There "A possibility il is ,r,,r
That the hrst Judgment the writ Of entry MIGHT In.
reversed on the writ OF review, but there is snilar
contingency as TO all claims founded on iudnnenIs
lhcy are liable to be reversed or set aside Tor yarious
CAUSES bu' TINS Is not such contingency as The
1 - Contemplated 1t seems, too, that in New
hampshire the action for mesne profits may he hrongh,
Ml'hout entry. and does not depend ON the ,u,gmsn,
lhe decree Of the chancellor affirmed
lh'e were three other cases OF considerable imnor-
lance argued but as the Court did not decid. ,hem
during this tem We merely suggest some of the ,ri,
cipa points raised
hoWE rs. BLANDrS -EJecment The princ;,,,
point was as to the validity of a partitiou ,f La ~
the county court A husband and Wit h., ' NUS, uy
I" common Jo'H IN petition tor pirtition and i, =,
made II was objected that the cour, ony haS :, 70
ugs" Oh, Wnrre lhee were adversary parties and this
was not The case here and could not be ~ '
For palnllit, O. l.. Shaitcr and W e. Bradl.y
for defendant, \, Reyes and J Roberts
GoRuAM rs DANIEIS.-Trespass guare cI,ys,,,n &.
2H lhe case depended upon the construction ot I,
deed lhe granlor conveyed n farm TO his son al
after the granting words attempted 10 eNcept .rnr, ~
grant the possession OF hall OF the premises d
thr lie OF himself and that of his wife The only 60
slderatlon named was peCunary one viz csnn
was coutendcd Tor the plaintiff that the exce.,, IL
VOID as repugnant TO the grant And for the dc,S
ant hai 1t might operate as covenant TO stand So;
under the statute OF uses. This was deniaJ 90 n ~
other hand as the only consideration appearina ',e
the deed was pecunlary one and ii was soid rs ,n
c1uln I've aNowed or proved; aud it was oues,ionat
'rh ,e s''ue o, uses was IN force in ths stale
Inc court suggested that II they found The cas- =, @
upon this last point, whether the Saint, 81 70 tnri
oeSn au3pletr 'ney should order new argnmen, "aa
FOR plantllf, W. L. Bradley and T. | Wiiii'n'
For defendant, A Reyes = aihef'
kEyEs AND WIFE rs Woon Ca.
chahcey The principal questions ~ - bii m
| ah'VCruent ueoi was good considara; ,nei an
or and xha,hnr NOE, as against the true own
a. a"u Mne'ner, where there are several 30. WI
cured ny NOR gage and one of them is ,, io'es Sc
Palol agreement that the endorse NAV a,H y MIN
o, .e mortgage security to collect The note ba ee
! lor plaintiff, W c Bradley and 4 ttsage.
for defendant, &. b. Kellogg and {. /. Walker
! HE kAlLRoAD.-The Engineers. we nr1ox
stand commence this week laying the rails no.
tween Troy and this town. The distance ~; .e