Fitch V. Stanton. Vermont Stat. vol. 1. p. 57. Vermont Stat. vol. 1. p. 387. JABEZ G. FITCH against JOSHUA STANTON.. IN ERROR. Plaintiff in error nonsuited. S. Miller, for defendant in error. The plaintiff below moved the Court that he might tax in the bill of costs, now recovered by defendant in error, an item containing the officer's fecs for the return of the original execution; which writ of execution had been superseded by the writ of error. He read the 8th section of the act entitled, An act constituting the Supreme Court of Judicature, &c. "And the Supreme Court of Judicature shall have power to examine, reverse, or affirm any judgment in civil actions rendered in any County Court upon a writ of error; which writ of error any Judge of the Supreme Court shall have power to allow and sign, and, on allowance of such writ of error as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosccute his writ to effect, and answer all damages and costs. If he fail to make his plea good, and if, on such writ of error, the former judgment shall be affirmed, the Court shall adjudge to the defendant or defendants in error, just damages for the delay occasioned by such writ, and single or double costs, at their discretion." He also read a clause from the fee bill, regulating the fees for sheriffs, &c. returning writs of execution. He argued, that this item for officers' fees for returning a superseded execution, although not strictly within the letter, came fully within the spirit of the law; that the manifest intention of the Legislature was to give all real damages, and something as smart money, to the defendant in error, to prevent delay in the collection of debts; that, allowing this item to be unprovided for by the statute, yet an officer having an execution in his hands unlevied, and the same being superseded by a writ of error, it became his duty to return the writ to the Court from whence it issued, with his reasons for not levying the same indorsed; for until the execution be returned, the plaintiff below can obtain no alias, which might issue upon the affirmation of judgment, or nonsuit of the plaintiff in error. It has likewise been decided, that the officer is liable to an action for neglecting to return such execution; therefore if the officer is in fact placed in this situation by the writ of error, that he is compelled to return the execution, and there is no other mode pointed out by the statute for him to obtain his fees for such service, the Court will be inclined to allow them under their discretionary power. By the Court. The fee bill does not empower the officer to charge such fees to the original plaintiff; and if he is not liable to pay the officer's fees, he can not claim them of the defendant, or ought they to be included in the damages. The item for officer's fecs for return of the writ of execution issued from the Court, cannot be taxed. In this cause the opinion of the Court was required. Shall travel and attendance be taxed for each of the defendants? By the Court. It is a general rule, that travel and attendance shall be separately taxed for all the defendants in ejectment, unless some especial cause be shewn to the contrary. The rate-bill necessary to be maintain a ti SAMUEL MIX against JOEL WHITLOCK. Elnathan Keyes and Daniel Chipman, for plaintiff. THIS was an action of ejectment brought to reproduced to cover the possession of Lot No. 75, on the South tle under the Hero, drawn to the right of James Hopkins, an ori30,000 dollars ginal grantee under the charter made by the govern tax act. ment of the State. The cause went to the Jury under the general issue. Mix V. Whitlock. Keyes stated, that in support of the plaintiff's title he should rely upon the proceedings and deed of the constable, ex officio collector of South Hero, who had legally granted the lands described in the declaration to the plaintiff's ancestor, under the authority of an act passed November 3d, A. D. 1791, entitled, "An Vermont Stat. act for the purpose of raising thirty thousand dollars." vol. 2. p. 237. He then read a charter issued by the Governor of the State, conformable to law, dated 27th October, 1779, granting the islands in Lake Champlain, called the Two Heroes, to certain associates, among whom the name of James Hopkins was inserted. He then offered in evidence a deed executed by Isaac Adams, constable and collector of South Hero, conveying the first division of the original right of James Hopkins, original grantee in South Hero, to Charles Lafflin. Harrington, for the defendant, objected to this deed being read in evidence, as the grantor had not in the deed either recited his proceedings at large, or sct forth that he had in all things pursued the directions of the statute. E. Keyes, for plaintiff, admitted this to be necessary, unless he could shew the requisite proceedings from the doings of the constable. He then read a warrant in usual form from the Treasurer of the State, directed to the constable of South Hero, commanding him to collect a tax of one halfpenny on each acre of land in South Hero, pursuant to the statute above Mix V. Whitlock. mentioned, and was proceeding to read in evidence certain public newspapers to prove the publication of the tax agreeably to the requirement of the act. Harrington, for the defendant, contended, that previous to the reading these publications to the Jury, it was incumbent upon the plaintiff to exhibit the rate-bill required by the act to be made out by the selectmen, and delivered to the constable as collector. He read part of the first section of the act, which enacts, "That upon receipt of the Treasurer of the State's warrant, the constables shall give notice to the selectmen of their respective towns, who shall on or before the first day of March, 1793, make out and deliver to such constable a rate-bill, containing a list of all the lands in such town held in severalty, and the number of acres contained in each lot, and the range in which it lies, or the division to which it was drawn or pitched, and the tax to be paid on the same; and where there are undivided lands in such towns, the said selectmen shall, under their oath of office, make an estimate of the quantity of land so undivided to the best of their judgment, which, together with all other lands in such towns, they shall form into one general list, and return an attested copy thereof on or before the first day of November (then) next following to the Treasurer of the State; and the selectmen shall assess each landholder or proprietor for the quantity which they respectively own, both divided and undivided, in one sum annexed to their names respectively; and when any land-owner or proprietor shall pay his proportion of said tax, it shall be the duty of said constable to make an indorsement on his |