INDEX.

ABATEMENT, See PLEADING; CRIMINAL LAW.

ACCESSORY, See CRIMINAL LAW 3-6.

ACCOUNT.

1. The individual members of a copartnership, who have advanced money for
the benefit of the firm, are, in an action of account brought to liquidate the
concerns of the firm, entitled to interest on such advances from the time
they were made. Hodges et al. v. Parker et al., 242.

2. A declaration in account, which alleges that the defendant was bailiff of the
plaintiff of certain property, and which shows that the parties were joint
tenants of the property, is sustained by evidence tending to show a joint
ownership of the property, and that the defendant has received more than
his share of the avails of the property; and this evidence, upon the issue
whether the defendant was bailiff and receiver, will entitle the plaintiff to a
verdict. Onion v. Fullerton, 359.

3. In the action of account the proof under the plea of plene computavit is some-
what different from what it is before the auditor, on the issue of nothing in
arrear. The former defence seems to rest upon the ground of an express
settlement of the dispute, and a surrender of all the property pertaining to
the trust, while the latter issue is sustained by merely showing that there
is nothing now in the defendant's hands, for which he is liable to account;
which may be shown, either by proving that the property has been surren-
dered to the plaintiff, or to a third person, by the plaintiff's direction, or
that it has been destroyed, or has perished, without the fault of the defend-
ant. Pickett v. Pearsons, 470.

4. The rules of pleading, in the action of account, laid down in Bishop v. Bald-
win, 14 Vt. 145, recognized and affirmed. Ib.

5. An agent can only be held liable for neglect, in an action of account, in a
case where the negligence has been gross and palpable. Ib.

See AGENT 4, 5.

ACTION.

1. If the husband appoint an attorney to receive the money upon his wife's

chose in action, and the attorney actually receive the money, the wife cannot
join with the husband in a suit to recover the money from the attorney, but
the husband must sue alone. Hill et ux. v. Royce, 190.

2. The legal interest in a contract is in the person to whom the promise is
made, and from whom the consideration passes, and he is the person who
must bring the action upon such contract,-as held in Pangborn v. Saxton, 11
Vt. 79, and Crampton v. Ballard, 10 Vt. 251. Hall v. Huntoon, 244.

3. The case of Dutton et ux. v. Pool, 2 Lev. 210, 1 Ventr. 318, T. Raym. 302,
commented upon and explained. Ib.

4. The omission to join, in an action, one of two or more joint contractors is no
ground of defence on trial; and it would not be good ground for abating the
suit even, if the person omitted were a silent partner with the other de-
fendants, or if the fact of his liability were kept concealed from the plain-
tiffs by the other defendants. Hicks et. al. v. Cram et al., 449.

5. Where the defendant contracted to deliver to the plaintiffs thirty tons of
starch per year for two years, it was held that the contract, though entire in
its terms, was yet divisible in its character, and that the plaintiffs might, at
the expiration of the first year, sustain an action against the defendant for
any breach, on his part, of that portion of the contract that was to be per-
formed that year. Mixer et al. v. Williams, 457.

6. If an attorney, having a demand entrusted to him for collection, fraudulently
deceive his client in reference to the responsibility of the debtor, and the
value of the demand, and thereby prevail upon the client to sell to him the
demand for less than the amount due upon it, and the attorney subsequently
collect the whole amount of the demand, he will not be liable to refund to
the debtor the amount received by him above the amount paid by him to the
client; but he will be liable to the client therefor. Marshall v. Joy, 546.
7. If a receipt for property attached is signed by several, and they, in terms,
"jointly and severally" promise to keep and deliver up the property, or pay
all damage, the officer taking the receipt may maintain an action thereon
against any one of such signers; and it is unnecessary to notice, in the de.
claration, the fact that there were other signers of the receipt. Maxfield v.
Scott, 634.

8. The defendant, in an action of ejectment, is liable, if he were in possession
of the demanded premises at the time of the commencement of the plaintiff's
action; and for this purpose the time of the service of the writ is to be
treated as the commencement of the action. McDaniels v. Reed et al., 674.
See ASSIGNMENT 10-12; Ex'RS & ADM'RS 1; PRACTICE 12.

ACTION ON THE CASE.

1. In regard to injuries to the person, or to personal property, where the in-
jury is directly inflicted by a forcible act, as where a blow is given to a
person, or an act of violence is committed upon his beast, or other property,
causing injury, the party aggrieved has generally no choice of actions, and
trespass is his only remedy; but if he have sustained a forcible injury, ef-

fected by means flowing from the act of the defendant, but not operating
by the very force and impulse of that act, he may sustain either trespass or
case. Waterman v. Hall et al., 128.

2. If the ultimate injury consists neither in the act of the defendant, nor in
the continued physical impulse of that act, the plaintiff may, as he more
frequently must, proceed in case. Ib.

3. In this case the injury alleged consisted in driving the plaintiff's beast
upon a fence, whereby its death was caused, and it was held that either
trespass, or case, would lie. Ib.

4. If, under a declaration in trespass on the case, alleging that the defendant
falsely warranted a horse to be sound, knowing him, at the time of making
the warranty, to be unsound, the plaintiff prove a representation by the de-
fendant of soundness, which, at the time of making it, the defendant knew
to be false, it is sufficient to entitle the plaintiff to a verdict. West v. Em-
ery, 583.

5. And if, in such case, the declaration allege an absolute representation of
soundness, and a scienter by the defendant of its falsity, and the proof shows
that the representation by the defendant was, that the property was sound,
so far as he knew," and the plaintiff also prove that the defendant in fact
knew, at the time of making the representation, that the property was un-
sound, this will be no variance,-since a representation of absolute sound-
ness and a representation qualified as above, which the defendant, at the
time of making it, knows to be false, bind the defendant to the same extent.
Ib.

6. But if the declaration allege an absolute warranty merely, and, as a breach,
that the fact warranted did not exist, without alleging the scienter, this will
not be supported by proof of a qualified warranty. Ib.

See Ex'RS & ADM'RS 6.

ACTIONS PENAL.

1. The statute, which requires a certificate to be made upon a writ of the
"day, month and year when the same was signed," is one affecting the rem-
edy, and the statute in force at the time the action is commenced must
govern. Pollard, q. t., v. Wilder, 48.

2. A certificate of the day, month and year when the writ was exhibited to the
magistrate signing it, is not a compliance with that section of the Revised
Statutes which requires a minute to be made upon such writ of the time
when the same was signed;—and a certificate, defective in this respect, can-
not afterwards, and after the action is entered in court, be amended, so as to
comply with the statute. Ib.

3. But the motion to dismiss an action for want of the proper certificate upon
the writ must be regarded in the nature of a plea in abatement, and, if not
made at the time, and agreeably to the rules of court governing dilatory
pleas, will be considered as waived. Ib.

4. A declaration, in an action brought to recover the penalty given by statute

for taking excessive and illegal fees, which specifies all the items of fees
charged, and avers that the excess of fees therein charged was a large sum,
to wit, the sum of $4.00," might be bad upon demurrer, for not specifying
the items of illegal fees taken, but is sufficient after verdict. Henry v. Tilson,

479.

5. An officer, who receives illegal fees, is liable to the penalty imposed by sect.
16 of chap. 106 of the Revised Statutes, whether such fees are received for
services for which a fixed compensation is given by law, or for services not
specified in the fee bill, and for which compensation is allowed under sect.
8 of chap. 107 of the Revised Statutes. Ib.

6. But an officer, who receives illegal fees, is not liable to the penalty imposed
by sec. 16 of chap. 106 of the Revised Statutes, unless he received such ille-
gal fees knowingly. In this respect the sixteenth section must have the same
construction with the fourteenth and fifteenth sections. Ib.

7. If a constable receive fees for travel from the place of commitment to the
office of the treasurer, to whom he is required to pay the tax, when col-
lected, he is entitled to prove, in an action brought against him to recover
the penalty given by statute for receiving illegal fees, that it had been the
usual practice of collectors of taxes to charge such fees. Ib.

8. Several creditors, having distinct and separate debts due to them severally
from the same debtor, cannot join as plaintiffs in an action qui tam against
such debtor, to recover the penalty given by statute for being party to a
fraudulent conveyance, or judgment. Carroll et al., q. t., v. Aldrich, 569.
9. The statute of 1821,-Sl. St. 266,-which imposed a penalty for being par-
ty to a fraudulent note, or judgment, continued in force until July, 1840,
and all penalties incurred therefor prior to that time accrued subject to the
provisions of that statute. Webb, q. t., v. Long, 587.

10. Under that statute the whole amount of a judgment was forfeited, though
but part of the consideration was fraudulent. Ib.

AD DAMNUM, See JURISDICTION 7.

ADMINISTRATORS, See EXECUTORS & ADMINISTRATORS.

ADMINISTRATION BOND, See Ex'RS & ADM'RS 7.

ADVERSE POSSESSION.

1. A deed of land from one out of possession, which is void, under the statute
of 1807, by reason of the adverse possession of a third person, will not affect
the right of the grantor in such deed to maintain an action of ejectment
against such third person. Nason v. Blaisdell, 216.

See EJECTMENT.

AFFIDAVIT, See EXECUTION 3, 4.

AGENT.

1. An agent, who makes a promise, and who does not conceal his agency, nor
exceed his authority, is not liable to an action upon such promise. Hall v.
Huntoon, 244.

2. An agent can only be held liable for neglect, in an action of account, in a
case where the negligence has been gross and palpable. Pickett v. Pearsons,

470.

3. An agent is only bound by the instructions of his principal as he understood
them, unless there was fraud, or some fault on his part, in not comprehend-
ing them; and he will not, in the absence of all proof, be presumed to be in
fault in not comprehending oral instructions to their full extent. Ib.

4. If an agent take a demand for collection, and receive, in payment, bills of a
bank, the solvency of which he does not know, and take the guaranty of the
debtor, with surety, that the bills are good, and, upon making his conduct
known to his principal, the principal receive the money and guaranty, say-
ing he will see what can be done with the money, and he then keep it two
or three months to ascertain its value, and the bills prove to have been worth
but twenty cents on the dollar at the time they were received by the agent,
the agent is not liable, in an action of account, for the deficiency in the
value of the bills, but the principal will be considered as having acquiesced,
by his conduct, in the doings of the agent. Ib.

5. So where the agent, in such case, took from the debtor a note for part of the
demand, instead of requiring money, as directed, and the principal received
the note, and controlled it, and retained possession of it until the hearing
before the auditor in an action of account against the agent, it was held that
the agent could not be charged with the note in such action, as for so much
money received. Ib.

6. An agent, employed for the purpose of superintending the sale of stoves and
hollow ware for his principal in a given section of country, and who is au-
thorized to receive payment therefor in different articles of the produce of
the country, is not authorized to execute a note, payable in such wares at a
future day, and thus bind his principal by his acknowledgment of "value
received." Denison v. Tyson, 549.

7. In order to recover upon such a contract, executed by the agent, without
any express authority from his principal, the contract must be declared upon
specially, and the plaintiff must prove that the consideration of the note
came fairly within the scope of the agent's authority, or that it came to the
use of the principal. Ib.

AGREEMENT, See CONTRACT.

AMENDMENT.

1. A certificate of the day, month and year when the writ was exhibited to the
magistrate signing it, is not a compliance with that section of the Revised
Statutes which requires a minute to be made upon such writ of the time
when the same was signed;—and a certificate, defective in this respect, can-