Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1876-01-07
Supreme Ceurt.-JanuaFy Tern.
Hon. HOYT n. WHEELER. Presiding Judge.
f. f. e. $ Etc., Justices

Hon. HoYT n. WHEELER. Presiding Judge.
f.: $is::s Justices
TUESDAY. Jan. 4. 1876
The regular January Term Of the Supreme
Court for this (Chittenden) County was
opened this morning, at ten O'Clock. with
College Street Congregational Church in
this city. The docket vas called and OF
the thirty-one causes on the calendar. the
cases Of Roscoe s. Fuller vs.. Rollin Smith;
H. A. Hodges vs. S. d. Merriam ef al; and
Edward McCarty vs. Edwin Wood Il Ii.
White were marked - with the court, they
having been heard at previous term. In the
cases Of S. L. Reynolds 4 Co. vs. Paul Leclair
and trustee and claimants /; and Adoniram
Austin vs. j. B. Small ct al, the judgment
Of the court below was affirmed by consent of
counsel. The case of A. B. +. H. Simonds
vs.. Joseph W. Gray, Jr.. was discontinued,
it having been settled. The remaining
twenty-five causes were marked for hearing
The first cause heard was No. ON the
calendar Ernest Lsporte, apee. VS. Joseph
Bacon, apt. This is an action Of assumpsit
in the general counts brought by plaintiff
to recover moneys paid by him to defendant
for intoxicating liquors sold unlawfully. In
the plaintiff. Defendant appealed. and the
case was referred by the County Court to A.
V. Spalding. Esq, who heard the case and
made special report of the facts leaving
the questions Of law raised to the court On
the report the County Court. gave jndg
ment for the plaintiff, to which exceptions
were taken to this court by the defendant
l.. l.. Lawrence appeared for the plaintiff.
and z. Ii. Start for the defendant
The objection first made by defendants
counsel was as to the nature Of the action
brought. He claimed that as the right of
action was created by statute it should have
been that OF Debt instead of assumpsn. Sec
ond That the defendants plea in Offset,
which he claimed had been properly filed.
should have been considered by the referee.
Money paid for intoxicating liquor sold il
legally may be the subject of such plea and
the Judgment below should therefore have
besn for the defendant Third That the |
money sought to be recovered being derived |
from The sale Of property lawfully in de-
PENDANTS hands, could not DO recovered by |
suit without demand first made. which was |
not done. Fourth A person having au-
thorized the application Of his money TO an |
illegal purpose 1t cannot be recovered back, |
after it has been so applied Fifth The |
right TO recover such money, was in the ma
ture OF a tort and not assIgnable. Sixth
That the plaintiff having been party to a
SUIT wherein the subject matter was litiga-
ted and determined. and which was in the
nature 0i u proceeding an Ten! against the
property in question. he and his assignees
are bound by the Judgment therein. Sew
enth That under the facts in the case the
defendant may recoup the amount found by
the referee against the plaintiff.
The rnnnSel for tho nlaintitf claimat in /
reply that the gravity of the questions in
volyed consisted in their novelty. The first
being whether money held without con-
sideratIOn and against law. equity and
good conscience" could be recovered in
general assumpslt. especially when the suit
has been referred without objection and the
referee had reported in favor of the recovery
of the same. In reply to this be insisted
that the full requirements of the statute
had been complied with.
As to the second question Whether the
referee can try question in set of against
objection. when no such plea was filed I'M
Ill the hearing commenced, the counsel ar
gued that the defendant was then too late
10 avail himself Of this objection.
10 reply TO the third queston-W neither
when q trustee has been discharged. the
Judgment was bar to the principal defend
ant from maintaining his suit. for the same
demand. when the statute says it shall not
be, the counsel denied the claim as being
without any foundation.
Question fourth-W neither the plaintiff
is barred from further prosecuting the same
because be has assuIe cd his attorneys, that
At they recover. they shall be paid for their
services and expenses, and the balance only
shall be demanded by him Of them-coun-
sci for plaintiff considered was sufficiently
disposed Of for the reason that the doctrine
Of the assignability Of chooses IN action was
too well settled to admit vi argument.