The Vermont watchman. [volume] (Montpelier, Vt.) 1883-1911, 1885-09-16
Washington County Court.

Nathaniel Perry as. Harvey Dow. This
was an action of trover brought to recover
for certain property covered by a chattel
mortgage given by the defendant to the
plaintiff on the 9TH day of April, 1879, osten-
sibly to secure the payment of certain
promissory note for the sum of $3.50, given by
the defendant to the plaintiff 1t appeared,
upon trial, that both of the parties, at the
time of the giving of the note and mortgage
in question, were living at Cabot Lower Viii
lage that the plaintiff had mortgage upon
the defendants farm, upon which mortgage
there was due considerable INTEREST," that
the defendant was in embarrassed circum-
stances, and that he had been sued and was
in fear of having the property covered by
the mortgage attached The plaintiff
claimed that the note in question was made
up of about $50, which sum he paid one
Miss Philbrck at the request of and for the
defendant, for interest upon the land mort
gage debt and for money loaned the defend
ant, and other bills paid to other parties at
his request; that some time after the mort
gage had become due he found that the de-
PENDANT had sold large part of the prop
erty covered by the mortgage, and when he
asked the defendant about it he claimed he
had right to sell it and that the mortgage
was a fraud. The defendant claimed that
the note and mortgage were given without
consideration and merely for the purpose
of covering his property from attachment
by his other creditors; that he never au-
thorized the plaintiff to pay Miss Philbrick,
and that the plaintiff never did pay her;
and, generally, that the whole transaction
was a fraud. The mortgage was properly
executed and sworn to before the Hon.
John NJ. Fisher, and the oath appended
to the mortgage. The plaintiff and de-
PENDANT had both taken their oaths that the
debt in said mortgage secured was a just
debt, honestly due and owing from the
mortgagor to the MORTGAGE; and when the
defendant was called to the stand and in
quired of by his attorney as to whether there
was any consideration for the note or not,
the attorneys for the plaintiff objected to
his testifying, upon the ground that he had
once sworn to the validity and honesty of
the transaction, and that if it were not true
he could not now deny its truth, upon the
principle that no man should be allowed to
take advantage of his own wrong. Judge
Taft ruled that he had right to so testify.
And so the defendant testified that there
was no consideration whatever for the note
or mortgage that the whole transaction
was fraud, and that it was so talked be-
tween them at the time the mortgage was
executed, or just after it had been executed
in the presence of Judge Fisher; and, in
short, testified that when he swore to the
debt in the mortgage he committed perjury
The defendant also introduced as a witness
Judge Fisher, before whom the mortgage
was sworn to, and he testified that after the
mortgage had been acknowledged and
sworn to the defendant made some asser
tions as to there not being any considera
ton for it, and that he was not owing the
plaintiff to which the plaintiff replied
% that there would be no trouble between
him and Harvey" This evidence the plant
if objected to, and the court ruled it out a.
inadmssibe, to which ruling the defendan
excepted, The plaintiff, in rebuttal, intro
duced the deposition of Miss Philbrick, wh'
testified that the plaintiff did pay her S15
for the defendant, as the plaintiff had testi
fed. A verdict was rendered for the plain
tiff to recover $29357 and his costs. Tn,
court granted certified execution. Thu
case will now go to the supreme court upol
the question of the admissiblity of Judg
Fishers testimony. Joseph III. Lamson AM
G. W. Wing for the plaintiff; S. G. Shurt
left for the defendant.
w. G. McAllister as. Patrick and Josial
mith.-This was an action of replevin T.
recover bay mare-cot. The plaintiff OF
fered to prove that the defendants came T.
his house and traded horses with him; tina
he was anxious to obtain mare with foa
for the purpose of raising colts; that the
recommended to him the mare; that the