Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1878-01-11

o Supreme Court-January Term, 1873.
Hon. HOMER f. ROYCE. PREsIprsa JupGK.
n Hon TIMOTHY p. RKDFlELp,
{ | lOs. jonathan Ross. IsSoriaf, .JHRg,S
ID Hon WALTER c. DUSrOS.
:, 4. ). HOrard, Clerk.
THURSDAY, Jan. 2. 1873.
The afternoon yesterday was occupie
! with hearing the following cases:
: Thomas Mix VS.. Hiram Shattuck ct al.
Ibis Is an action OF assumpsit on promi.
! ! sorry note for 5000 given by defendant.
March 81. 1866. To it two Of the defenC
ants made no defence Plea Of deiendan
Shattuck, general issue. and statute of lin
itatiOns The facts in the case are brief
these; In 1868 the defendants, who hat
previously been in partnership, were inc0r
p0rated as company, under the name O
the Forrest Mill Lumber Company. The
mmediately received all the property an,
effects Of the old firm. and assumed all it
debts and liabilities. The defendant Ches
more, one of the directors, was appointed
treasurer and secretary of the company, OF
April |, 1871. While acting in his otficia
capacity. he made payment of the inter
est due on the note. out of the Joint fund
OF the corporation. but without the knowl
edge OF defendant Shattuck, other than tn,
law would imply from the fact that ne wa
at the time president and one OF the drec
tors of the company. The main ques
tlons in the case are First. Did the cour
below err in permitting plaintiff to show
by parOl testimony that the defendants were
Co partners when they signed the note, and
that they subsequently treated the note as
Co partnership debt, and that the avsils ot
the note were used as cO-partnership funds
Secocd Did the payment made by defend
| ant thpSmnrp IRTI taxa IA pa n
the statute of limitations? Third: Was
the old partnership dissolved by the signer,
OF the note organizing under charter Of
Incorporation? 5. Ii. Davis for plaintiff
A. V. Spalding for defendant.
Henry c. Hayden vs.. Lyman \. Hill and
NJ l.. Snyder. This IL an action of debt
against the defendants a. sureties on an in
demnity bond given Ly one Mitchell. an
agent for selling sewing machines for the
plaintiff. Ii was tried by referee. and
! brought to this court by defendants. The
suretles claimed as a defence the fact that
the plaintiff advanced Mitchell money on his
commissions to pay the expenses Of the asea-
! cy; that Mitchell, with the cwledge OF
1 the plaintiffs. took one Ciapp into partner
I snip VITA hIm IN the 6uerue-s. AMI nat Ger
tain items arising from rent Of store and ex-
pense Of horse keeping were not covered ny
| Aht bNlAls uE HlAAHAlA ltlt = tu tue lttI
that the advances were IN ccordauce With
an agreement at the outset that Clapp was
rot recognized by him as his agent. and the
items found by referee in his favor were
covered by the bond. r. II. Start and NJ
a. Bingham for defendants; j. W. Russell
and E. r. Hard for plaintiff
CO. Pettingill, by next friend, apee
VS.. 0. n. Elkins This is an action of
trover for a lot OF Jewett milk pans, which
had been attached and sold by defendant
on execution against Ii. F. Pettingill.
The plaintiff, who Is son OF Ii. F. Pettin-
gill, claimed to own the pans by virtue of
a sale to him prior to their attachment by
the defendant. The facts in reference to
his claim are as follows: iG 1875 plaintiff
worked for his father, and ON their settle
ment the pans were given to him by his
father in payment Cf his Indebtedness to
bis son for wages duo and also for pair of
sleds which the plaintiff bad stored in an
unOccupied house of one Porter and wife.
1t was further agreed between the father
and son that the father was to have the use
of the pans during the remainder Of the
dairy season. at the end of which time the
father was to put them into the said un-
occupied house and take the sleds. This he
did in the Fall OF 1875, and notified Mrs.
Porter Of the fact, the farm being in the
possession and occupancy OF the POrters.
The pans remained on said premises until
February 1876 when they were taken on Il
writ in favor of the plaintiff and sold as
above stated The plaintiff authorized his
father to sell the pans il he had an Oppor-
tunity. and the father sold them to one
Martin as defendant claims as his own pro-
perty. The principal question in The Gaze Is
As TO there having been Il sufficient change Of
possession TO protect thom from attachment
by the creditors of the vendor. X. II Start
and A. V. Spalding for plaintiff. IL. Bal
lard and NJ r. Tyler for defendant. The
argument of counsel was not concluded
until this morning. The remainder of the
forenoon was, occupied with the hearing of
the case of Cornelius S. Palmer apee. VS..
Samuel TYLER apt This is an action OF
trOver for quantity of wood which was
piled on the land of one Thomas Tyler in
Westford by one Peter Lord. While there
it was levied upon and sold to plaintiff on
an execution in his favor against said Lord.
The defendant claims the wood BY virtue OF
a sale to him by Lord previous to its sale
to the plaintiff upon the execution. The
defendant subsequently appropriated the
wood to his own use, and this action was
brought to recover the price. The only
question involved is as to tho suffciency OF
the change of possession. c. 5. Palmer for
plaintiff; NJ. a. Bingha for defendant.
Oliver Spooner and wife. apees, w.. Clark
W. Reynolds. This is an action of trespasS
Joined with count in trover, brought by
the female plaintiff to recover the value of
wagon, parts of two harnesses ard straw
cutter, which she claimed TO Re her own
separate property. Plea. general issue. and
two special pleas in justification, setting
forth that the property was attached by de-
tendant. deputy sheriff, on writ in favor
OF Terrill Brothers against the plaintiff.
Oliver Spooner, and sold to satisfy execution
Issued on judgment in that case Ii was
ON trial that the proceedings of !
said attachment and sale by defendant were
all regular. and r full justification to him If
said property was liable to attachment on !
the writ so served by him. 1t was also con- !
ceded that said wagon and the harnesses |
were purchased by said Oliver oT one Lane,
in September and December. 1874. by " HON /
a lien was reserved upon the property until |
II was luliy paid for that the property was |
taken and used on the farm owned by the |
femal e plaintiff. No question was made in |
regard to the straw cutter; also that said /
Oliver in Dec. 1875 executed bill of sale oi |
the property in question to one Spooher To |
secure the payment OF loan made by him
towards paying for her said farm. The |
principal points involved are : FIRST, To
whom the property in question belonged.
the husband or the wife, and it to the latter,
whether the husbands creditor could not
hold 1t. on the ground that both parties had
held out to the world that II was the pro-
perty OF the husband. Second, II the pre-
perty belonged to the wife, whether plain
titfs are estOpped from settling up title by
reason of dIsclaiming any ownership to
property when attached by the O. ficer
Third, Whether the husband had not re-
iuced the property to his own possession
before attachment. X. II. Start and Henry
Ballard for plaintiffs. L. F. Wilbur tor
defendant
FRIDAY. Jan. 4. 1873.
In the afternoon, yesterday, the following
'ases were heard:
Town OF Essex vs.. Lucien W. French ct
lis. This Is an action OF debt on bond
Igainst the defendant, who was a collector
II the plaintiff. and his surcties. The case
hows that in 1879 the abstract of the grand
ist returned by the town for the assessment
II State taxes Tor that year was S6ii less
han the actual and true list OK the town.
The State Treasurer, assessing the tax upon
he abstract so returned. as required by
sw, and the selcctmen OF the town comput-
ng and assessing the tax upon the true list
4 the town, made an excess Of tax called
Or by the State of S257.35, Tor which the
own seeks a recovery OF tho defendant The
eiendants claim they are not liable for the
and excess. Tor the reason that 1t is
0t such an excess as Is contemplated by
he statute, that the act OF tho town IN
coping back the S6l4 OF their list was a
-auf upon the State and consequently the
'hOlc tax raised upon the list ol 1872 was
legal, and that the town cannot take ad-
antage OF ~ own wrong l.. L. Lawrence
II the plaintiff; NJ. A. Bingham for the
eiendantS.
Olive Armel, Gp 'ce. W Daniel q. Noonan,
pt. This Is an action of asSumpsIt on
'eclal contract with defendant to pay ] /,
'rtain debt of the plaintiff to one Field.
he points relied upon by the defendant.
ho Is the excepting party. are first. :,
fal IrF. -. 4