Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1859-01-21

to tho ruling of the Court in admitting certain
testimony and the case in this Court was heard on
these exceptions. PfERroisr, J, delivered the
opinion. Judgment affirmed. Roberts h Chitten-
den for plaintiff. Dillingham; and Weston for do.
PENDANT.
No. is. D.. p. S9uir,s v. T.. Burgess. An action
Of account. Judgment to account ~. rendered in
the County Court Mt the -- Term, 1856, and
Auditors we're appointed. At tho Nov. Term,
1857, the plaintiff entered a non-suit in the cause,
and at the March Term, 1858, defendant moved to
strike of the non-suit, which motion was denied,
and defendant excepted. Held, POLAND J, that the
denial Of such motion was n matter Of discretion
in the County Court, which could not he revised by
the Supreme Court. Exceptions dismissed. Hard
& French for plaintiff. II. b. Smith for defendants.
No. 10. T.. W. Bates v. J. Mack. This was an
action on Book. Exceptions were taken by plain
tiff to Auditors Report on the ground that the de-
position of James I Cutler was Improperly admit
ted the certificate not stating the time and
place Of trial. Held by the Court, BrSSnrT j., that
as the deposition had been taken under nm ngrce.
ment Of parties, these formalitics were unnccessa-
ry, and the deposition was properly admitted
Judgment affirmed. Hard & French for plaintiff.
Mack, pro Sc.
No. 20. ". 7. Borman v. John A.. Conant. This
was an acticn Of trover for one passenger car at
tnchcd by PLAINTIFF MS the property Of the Rutland
4 Burlington r. r. Co, and r~ecciptcd by defend
ant. The execution in the suit in which the car
was attached, was placed in the hands Of Paul rs
deputy Sheriff, and upon snid execution defendant
turned out to Paul n different car from the ono at
tachcd by the plaintiff. Paul was about to sell
the car SO turned out to him when he was threaten
ell with n suit by the trustees of the r. r.. Co, and
defendant neglccting to give Paul n bond ofindem-
nifty, he abandoned the levy, and plaintiff brought
this suit. Held, among other things, that under
these circumstances Paul was justified in abandon
ing the levy on the car turned out to him, and
plaintiff was entitled to recover. POLAND. j., de-
livered the opinion. J. Mack for plaintiff, Rob.
erts & Chittonden for defendant.
No. 81. W. H. Root v. c. ". Reynolds. Con-
tinucd to General Term.
No. %. James Hmne,ty v. 7. r. Stuart. This
was an action on book, and came to the Supreme
Court on exceptions to the Auditors Report
PIrnrotSr, j., delivered the opinion. Judgment
reversed and case remandcd. Edmunds for plain.
till. Hard 4 French for defendant
No. %. Sarah p. Diron V. L. J. Diron and
others. This was m action upon promissory note
for five hundred dollars. Defence that Adams, one
Of the signers, was surety for the three other sign.
ers, and that, at the time he signed the note and
left it in the hands Of the other signers, it wa.
agreed that another signer should be procured to
tho note before it WINS delivered md that it was
delivered to the plaintiff without procuring such
signcr, in payment Of another note which the
plaintiff held against all the signers except Ad-
ans, but that the note paid was not given up for
several weeks. Held by the Court, BARRE1r, j.,
that such an agreement wa. not a defence unles,
the plaintiff, at the time she took the note, knew
of its existence and that she took it upon n good
consideration, and in the usual course Of business,
and that it made no difference when she gave M
the note for which this was substituted, the jury
having found that she took it in payment.
The defence, in substance, had been plead in n
special plea not averring any knowledge in the
plaintiff Of the agreement, which was held ba l.
Judgment Of County Court affirmed. Sm tn for
plaintiff. Edmunds for defendants.
No. q. ". c. Benton v. F. Fletcher. Action
against defendant as guarantor of a promissory
note signed by II. W. Catlin and endorsed by II.
Lcayenworth. The guaranty was in these words
Il warrant the within note collec'nble when
due. (signcd) +. Fletcher"
Held, PcLASp, j., that defendant was only liable
T.. IL. --.-. 49, t...n -
faction on the note from the other parties thereon,
and that he was bound to resort to all legal mean.
to obtain payment from such other parties, before
the defendant became liable on the guaranty
II lgment for plaintiff reversed. Edmund. for
plaintiff. Mack for defendant.
No. IS. Em,iine Cutter V. Henry Gildr IT al.
Trespass qua. cidus. The declaration described the
locus as lot No. 1902 in Huntington, bounded North
"by lands Of Henry Gillctt. East by lands of" &c.
The Town Of Huntington was surveyed by one
Allen, in ls0s, and his survey returned to the pro-
prietors, and a plan made according thereto and
adopted, and such plan, survey and allotnonts had
ever since been recognized by the inhabitants.
The lots were "intendod to be 1903 rods in width. !"
The defendant claimed to own lot lOl, lying imme-
diately south of and adjoining lot No. l02, and the
question was as to the line between No. l0l and
1872. The plaintiff claimed to n line lying south
of and including the locus within No. 1902; being n
line Of marked troc-. made at the time of Aliens
survey. The defendant claimed to n line some lC
rods north Of said marked line, as being the true line
by the defendant, would include the locus in lOl,
The north line Of l02 was admitted, and the de-
PENDANTS testimony tended to show the distance
from such north line across l02 to the south line,
as claimed by the plaintiff, was, by horiz n,al
measure llG rods; and to the line as claimed
by the defendant, was 100 rods AMI lG links.
The plaintiffs testimony tended to show that
lots in the same tier with lOl and 1902, measuring
between ancient lines, measured more than
lO3 rods, viz. 10 rods, by surface meas
uIc. The case showed, that one White was part
owner with lIenryGi llctt of the lands lying on the
north of l02; and that the several persons named
claimed to own and be in possession Of the lands
named in the declaration as surrounding No. 1902.
Opinion, by BARRETT, J.,-that White was part
was not a variance between the declaration and the
evidence; that the evidence OF claim Of ownership
and Of possession Of surrounding lands answered
the description in the declaration; that the line
actually marked on the ground in the survey made
by Allen, as the south limo Of 1902, although not
named in the original plan and survey, must con-
troll the distance named as the width Of the lot, as
90 intended to be 1903 rods" Judgment affirmed for
Roberts 4 Chittenden for plaintiff, Ed
munds for defendant.
No. 26. Joseph WhPpie and Ransom Jones v.
W p. Briggs. This was an action Of ~,.umpsit to
recover for money paid by plaintiffs as surety for
Defendant bad placed in the hands