Broughton

V.

cott.

Francis the 9th of the same month, and by conni

Ward and Wol- vance of the then plaintiffs, (now defendants,) altered and made returnable on the 19th of April aforesaid. The Justice held his Court on the fourteenth of April, and not noticing the alteration in the writs, defaulted Broughton and Francis, rendered judgment, and issued executions in both actions. The executions were put into the hands of a constable to serve and return; who levied the execution in the name of David Ward upon the mare and colt, and that in the name of Abel Wolcott upon the oxen described in the declaration. The property was sold at public auction, and the avails paid to the present defendants.

Mr. Justice was sworn. He exhibited the two writs. The alterations suggested by the counsel were apparent. The writs of execution recited each a judgment rendered on the fourteenth of April, 1798, and were dated the 24th of April, 1798. The Justice testified, that the two writs of attachment were brought to him to sign by the defendant Wolcott, at which time they were made returnable on the fourteenth day of April, 1798; and on that day he rendered the several judgments on default, and granted the executions on the 24th of April, which he delivered to Ward, the other defendant. That on the nineteenth of April, 1798, he met Broughton, the present plaintiff, with Francis, and they told him they were going to his house to attend Court; that he then informed them he had rendered judgment against them in both suits, on the 14th of April.

Chauncey Langdon, for defendants, now objected to the several writs of attachment and of execution going to the Jury. The matter in issue is a joint trespass; their whole shewing several trespasses.

Sed per Curiam. There is sufficient privity shewn already in evidence between the present defendants. The acts of each, as combining in this joint trespass, may be shewn.

Further evidence was exhibited, shewing that the writs of attachment were purchased out at the instigation of Francis, who, before the service upon Broughton, altered himself the days of the returns with the privity of the present defendants, and afterwards turned out the oxen, &c. the property of Broughton, to satisfy the executions.

The Court inquired, if the defendants relied upon impeaching the credibility of the witnesses; and observed, that if their testimony could not be shaken, the defendants must be without available defence.

John Cook, for plaintiff.

Verdict for plaintiff.

Chauncey Langdon, for defendants.

Pierce

V.

Clark.

In action upon

promissory

GEORGE PIERCE, Appellee,

against

JEDEDIAH CLARK, Appellant.

PLAINTIFF declared upon a promissory note,

note, the de- General issue joined, and put to the Jury.

fendant having

paid, in dis

charge of the

Defendant offered to shew in evidence certain arti

note, sundry ar- cles of merchandise paid in discharge of the note.

ticles of mer

chandise, the

common

sub

ject of charges

Israel Smith, counsel for the plaintiff, objected; on book, is not who read section 93. of the Judiciary act, "That if obliged to file

count, under

his book ac- any action shall be pending in either of the Courts the 93d section aforesaid, Supreme or County Courts, and the deof the judiciary act, but may fendant or defendants shall have any just demand on

shew such pay

ment under the book against the plaintiff or plaintiffs, which cannot

general issue.

Vermont Stat. vol. 1. p. 92.

be plead as an offset as aforesaid; it shall be lawful for such defendant or defendants, on or before the third day of the first term of the Court, in which, by law, he, she, or they, is or are required to appear to file in the same Court in which such action shall be pending as aforesaid, a declaration setting forth the nature of such demand, according to due form of law; which declaration so filed shall be sufficient notice to the adverse party to appear and answer thereto; and the Court, in every such case, shall proceed to the trial on such declaration, previous to the trial of the original action; and if the defendant shall recover on such declaration, the sum so recovered shall be plead as an offset against the original plaintiff's demand, as is above provided." And then insisted, that defendant should have filed his book account according to the

Pierce

V.

Clark.

statute provision; in which case auditors would have been appointed, and his client would have had the benefit of examining the defendant under oath relative to the correctness of his charges on book, of vol. 1. p. 236, which he may now be deprived.

Sed per Curiam. The statute provision does not abolish the common law privilege. The defendant may shew under this issue any thing which goes to the discharge of the note. Payment is always good

Vermont Stat.

237.

shewing.

for plaintiff.

Israel Smith, for defendant.

WILLIAM HOGG, ex dem. SILAS HODGES et al.

against

ERASTUS WOLCOTT, Tenant.

COSTS on new trial in ejectment.

Upon granting

a new trial, the

Court will not

ainst the adfrom the com

verse party

the suit, but

This cause, after being several terms in the County Court, came by appeal to the Supreme Court, and was tried February term, 1800. Verdict for the plaintiff. At the May adjourned term of this Court, mencement of 1800, defendant Wolcott filed his motion for new merely those trial, grounded upon the recent discovery of new and material evidence. New trial was granted and had this present term, when the Jury found a verdict for the defendant; and now defendant moved for his

costs which

have accrued

after the grant

ing of the new

trial.

Hogg

V.

Wolcott.

costs to be taxed from the commencement of the suit in the County Court.

Chauncey Langdon conceded, that if the new trial had been granted by reason of the misconduct of his client, the plaintiff, full costs might have been taxed; but e contra where the new trial was granted on account of the misfortune of the defendant, occasioned by his ignorance of certain material evidence.

Per Curiam. The new trial was granted solely upon the discovery of new and material evidence. Here was no misconduct in the plaintiff. Let costs be taxed for the defendant, solely from the commencement of the new trial,

Where a new action is not

I. SMITH against ITHAMAR HUBBARD and ISAAC

M'WITHY.

MOTION in arrest of judgment, and for trial de

barred by the novo, in ejectment.

statute, the

Court will not This cause was tried at the stated term, February,

readily grant a

new trial, be- A. D. 1801. Verdict for defendant.

cause the Jury

have not pur

sued the di

Darius Chipman and

rection of the ing motion :

filed the follow

Judge's charge.