Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1848-03-10
Supreme Court.

for this county, on Tuesday, goth ult Present
Hon. J. +. REpFIELD, Hon. MIo L. Ben
xKrr, Hon. DANIEL KELLOGG, Hon. HILlASD
HALL, Justices
There we're some twenty cases for hearing,
only nine Of which we're heard, several Of these
being important, and consuming much time
The ability and research displayed in the argu-
ments Of counsel, was a matter Of general remark,
both by the Court and others
We7s rs Hoscnrd
This was an action Of assumpsii upon two prom
ssory notes. The facts appearing in the case from
the pleadings, which were yoluminousi were, that
the notes were executed TO one Samuel Dexter, In
consideration Of bond executed by Dexter to De
PENDANT obligAting himself to convey TO Defendant
within one year certain lotof land IN ionla Mich
the Defendants erecting thereon within that time
building Of certain dimensions, and paying to Dex-
Ter $3.50, which sum secured 70 he paid by two
promissory notes Of equal amount one in six months
and the other in one year The nexf day after the
execution Of this bond Dexter decided the lot In
others until eleven months after the expiration Of
the year, when the lot was re-decded TO Dexter
This sui, was brought for the benefit Of Dexter
The Defendant ooutended that these facts furnish
n full defence to the notes In question Dexter hav-
ing put II out Of his power TO make the conveyance
he had bound himself to make, they were relieved
from performance on their part
The judgment In the Court below was for the De
fendanti exceptions BY Plaintiff.
The case was argued At the last term, and was
again arEaed this term, by A. Reyes and VIM. C.
Bradley for Plaintiff, and U. L. Shafter aud J.
Roberts, for Defendant
REpFiEID, Justiee.-The payment on the part Of
Defendant was n condition precedent 70 the convey
ance on the part Of Dexter, and a. the Defendants
could not sue Dexter apon the bond without aver.
ring performance their part, they cannot now set
up any breach Of the conditions Of the bond BY Dex-
ter, "a a defence for the non-performanee Of such
conditions precedent IL is commended by the eoun-
sci for Defendant lwho have argued this case with
very great abiliiyl that the conduct Of Dexter in
deciding away the lot in question, operated A. a res
eission Of the contract and relieved the Defendants
from the performance Of the conditions precedent
A rescission must lie an intentional act, and must
be known to the other party TO excuse his perform
anee- This does not appear.
Judgment Of County Court reversed, and new
trial ordered
This was an action on the case with one count,
to recover for the valae Of nine cows. The facts
were agreed upon in the Court below, and were a,
/ follows:
One Samuel Smith I'd, leased farm TO w. w.
Brown, for three years from April lst, lss2 and at
the same time delivered him the In question,
10 be kept the place for the benefit Of Brown dur
ing said three years, when Brown was 10 return 10
$50 ~ Il, ,ssss m. sur,,.sJ ;,,srss, ~
re is.sa, IN n. ro,s 80 Is,is3 pnon nv virtpe N
an execution against him, during said term and was
purchased by the present Plaintiff, Al the sheriff
r.o.sess;on N Rro,,n sahseouentIv and during
"a ,.,v, ~ a., - ~. 49, -er. .,tarbed nv
,be nsfrndar, a. he ,rorrrtv of BroUn- and were
Afterwards sold on execution After the expiration
Of the three year the Plaintiff demanded the cows
The De6.ndsn, sla;,nss-Tls, Tia, Nv yirtur az
he or,r;n.I ror,,,c, ,he general nrancytx In he
cows nssssd 10 Rro~n nd ,Lsv ,,,rr suh;ec, 10 A.
,srhner, ~ IA. ,rn,,-,,x "a Tia, n !, usys o,h.
- ~. - ~ ~. 49,. -
not subject 10 at,arbmen, during the tenn ard thai
nothinc pa.sed q, he PIan,T bv the sberitTTs ale
Judg,nent for Plain,if5 hrlo,. ard excep,ions bx
rh. -. -. ..,,., - ~ 7 w.u....a 7 IN
Bradley for Defendant and 4. Ksyes for Plaintiff:
COWS was no, liable TO seizure on attachment or ex
ecu,ion ana couId moi be sold thereon during ~.
term. and consequently nothng passed 70 the Plain
till by the sherffs sale As 10 the other point We
think Il was lease Of the cows TO Brown, and not
a sale.
Judgment Of County Court reversed, and judg-
meni for Defendant
| S.,4s TN
'''- y.
s.laH, ~ az A.on on tne case Against the De
iendant as constable OF Grafton, for neglect in not
aIIAehlns properly on wit pot into his hand, TO
and Piaintiffia Las yer. mad 81, a, ~. ..,,ss
ton Of the Jury The Defendant relied upon he
following facts as a defence:
The Defendant first served 4 wit upon said Har-
MS in favor Of the Plaintiff, by attaching properly
The writ thus served was made returnahle 10 the
County Court next to be holden. &c ON the llirf
Jscsdly Of llay then ensuing, whereas The return
day should have been stated the second Ts1sfzv Of
April Upon ascertAining the mistake, the Plaintiff
took the same writ altered the return day and the
date, prepared notice In writing directed 70 aid
Harris, notifying him Of the discontinuance Of the
first suit, and handed said notice together with ne
wit so altered to the Defendant with directions frs,
TO serve upon Harris The notice on disoontinuance
and then 10 serve the writ 30 altered: which he ne
leeted 10 do in proper season. The Drfrndsn, ros.
tended be was NOT liable for MOI ser,ins re -, -
altered. -
Judgment for Plaintiff ard excsn,;ors h. n
fendant - ~
Argued for Plaintiff nv e WALL, e. n.e.,,s-
ant Ly NJ. g. Bradlry ''' -'e's"-'
HaLI. The MI N, Law 4. ,h., sh...z. -
constable. are no, erc,sed n, ~, anu
cess on, into their hands rnlsss H., ~ Piv'
Mere error frrishes ~, =, IN oe ~. ~.
writ IN ones,;o, - - ~ e o' inc
ed iur;sc,; b,, ~ Jou ~ ny An9 snow
n.r,.. WLa,bst ~ ~. eesyee' na,'er ana OF tne
""eei SIe DeienuAht IN thhi VIII might