served by the plaintiff when he made such tender. Draper v. Pierce, 29 Vt. 250. V. ABATEMENT BY PENDENCY OF FOR MER SUIT. VI. SURVIVAL. VII. PARTIES. 1. Plaintiffs. 2. Defendants. VIII. WHEN NOT MAINTAINABLE. I. WHEN MAINTAINABLE. 22. Where a party makes an offer of a certain sum to settle a claim, where the sum in controversy is open and unliquidated, and attaches to his offer a condition that the same, if taken at all, must be received in full, or in satisfaction of the claim in dispute, if the other party receive the money, he takes it clogged with the condition which the party offering has attached to his offer, and is bound to its fulfill- 1. Instances. Where the guardian of a ment. This will operate as a full accord and minor paid to the purchaser of the minor's land, satisfaction, though the party receiving the at a tax sale under an act of Congress, a sum money declares at the time, that he will not of money exceeding the tax and interest for a receive the money in that way, but only to conveyance to the minor, in consequence of account for upon the claim on which it is offered, the guardian's mistake or ignorance of the -the party offering the money not waiving the provision in the law which allowed the minor condition. McDaniels v. Lapham, 21 Vt. 222. to redeem within two years after arriving at McGlynn v. Billings, 16 Vt. 329. Cole v. age;-Held, that the guardian could recover Champlain Transp. Co., 26 Vt. 87. See Foster the sum so paid, as money paid by mistake, v. Drew, 39 Vt. 51. Touslee v. Healy, Ib. 522. notwithstanding the maxim: Ignorantia juris 23. During a term of court in which this non excusat. Brown v. Sawyer, 1 Aik. 130. suit was then pending, the defendant tendered 2. In consideration that the plaintiff, a credto the plaintiff $55, saying "I tender fifty-five itor of C, would release an attachment made, dollars in full for the debt and costs of suit," the defendant, also a creditor of C, promised and asked the plaintiff if he would receive the the plaintiff not to sue C for one year. Held, money. The plaintiff replied-"Yes, and that for a breach of this agreement the plaintwenty dollars more." He took and used the tiff could recover such damages as he had susmoney so tendered, claiming more to be due tained thereby. Boardman v. Wood, 3 Vt. 570. him. Held, that the plaintiff's claim was there- 3. The general owner of property, attached by cancelled, notwithstanding his declaration by his creditors, can maintain a suit against the that he wanted or claimed more. Touslee v. attaching officer for damage done to it through Healy. his negligence, although that suit is still pend24. When a tender or offer is thus made, ing and the attachment is still in force. The the party to whom it is made has no alternative rights of the officer and of the creditor can be but to refuse it, or accept it on such condition. protected by proper orders as to the execution, If he takes it, his claim is cancelled, and no &c. Briggs v. Taylor, 35 Vt. 57. protest, declaration or denial of his, so long as 4. Concurrent actions. The plaintiff the condition is insisted on, can vary the result. Pierpoint, J., in Preston v. Grant, 34 Vt. 203. 25. This rule is the same in equity, as at law. McDaniels v. Bank of Rutland, 29 Vt. 230. received of the defendant a good note against a third person, as a pledge or collateral security for a debt due the plaintiff, and of larger amount than such debt, and sued the note and attached personal property. Held, that this was no bar or suspension of the plaintiff's right of action upon the original demand, although he did not offer to return the note pledged. Chapman v. Clough, 6 Vt. 123, and see Bank of Rutland v. Woodruff, 34 Vt. 89. 26. The law is well settled in this State, that if there is a claim in dispute between parties, whether in suit or not, and one offers to the other a specific sum in full settlement or satisfaction of such claim, and the other receives 5. Successive. The defendant promised the the sum, though he protest never so stoutly plaintiff to pay and save him harmless from that he receives it only in part satisfaction, such three several notes of the plaintiff outstanding, receipt of the money is an accord and satisfac- and to fall due in three successive years. After tion of the claim. Bromley v. School District, all the notes had become due, the plaintiff was 47 Vt. 381. ACTION. I. WHEN MAINTAINABLE. II. COMMENCEMENT. III. VENUE. IV. DISCONTINUANCE. sued upon the first and compelled to pay it, whereupon he sued the defendant for indemnity as to that. The same thing afterwards occurred as to the second note, whereupon the plaintiff brought a second suit for indemnity as to that. Held, that successive actions lay upon the contract, and that the judgment in the first was not a bar to the second. Hosford v. Foote, 3 Vt. 391. 6. When part of the whole sum due upon a brought in the town in which one of the parties sealed agreement was made payable in cash at resides. June v. Conant, 17 Vt. 656. stated times, and the balance, a fifth part of 14. The act of Oct. 29, 1811 (C. S. c. 29, the whole, in goods on demand:-Held, that s. 36; G. S. c. 31, s. 33), does not apply to a covenant would lie for the cash instalments be- single act of selling on a particular occasion, by fore demand of the goods. Stevens v. Cham- one who did not use or follow the trade of berlin, 1 Vt. 25. vending goods, &c., or, if he did, was only 7. Gratuitous undertaking. A consider- transiently in the town in which the sale was ation is necessary in order to make a mere re-made, and had no established business or place fusal to execute a trust a ground of action; but of business there. Wainwright v. Berry, 3 Vt. if one enter upon a mere gratuitous undertak- 423. Stone v. Hazen, 25 Vt. 178. ing, and then neglect it, he is liable as for a fraud, or gross neglect. Hyde v. Moffat, 16 Vt. 271. II. COMMENCEMENT. 8. It is no objection to a suit that the plaintiff's right of action was not perfected before the issuing of the writ, if it became so before service. In such case, the service is regarded as the commencement of the suit. Hall v. Peck, 10 Vt. 474. 22 Vt. 254. McDaniels v. Reed, 17 Vt. 674. Hawley v. Soper, 18 Vt. 320. 9. To save the statute of limitations the taking out of the writ, if duly prosecuted, is regarded as the commencement of the action. Allen v. Mann, 1 D. Chip. 94. Day v. Lamb, 7 Vt. 426. 15. But it does apply to sales made by a peddler in the usual course of his business, while peddling in a town other than his own or the purchaser's residence. Richardson v. Stevens, 41 Vt. 120. IV. DISCONTINUANCE. 16. Causes. The non-attendance of the justice within the two hours given by statute for appearance after the hour set for trial, operates as a discontinuance. Brown v. Stacy, 9 Vt. 118. Phelps v. Birge, 11 Vt. 161. Crawford v. Cheney, 12 Vt. 567. 17. So also the absence of the parties. Pike v. Hill, 15 Vt. 183. 18. So also an unauthorized continuance with appearance of the defendant. Paddleford v. Bancroft, 22 Vt. 529. See Aldrich v. Bonett, 33 Vt. 202. 10. The presentation of a claim against a deceased person's estate to the commissioners 19. It is not the death of a party, but the for adjudication is the commencement of a appointment of commissioners for the adjustsuit, or action, and all future proceedings, on ment of claims, which works a discontinuance regular appeal, or on appeal allowed on peti- of a pending suit under G. S.. c. 53, s. 16. tion to the supreme court, are only a continua-Miller v. Williams, 30 Vt. 386. tion of the original proceeding, and it remains 20. The non-entry of an appeal operates as the same suit or action pending. Calderwood a discontinuance of the action. Bates v. Kimv. Calderwood, 38 Vt. 171. Kimball v. Baxter, ball, 2 D. Chip. 83. Love v. Estes, 6 Vt. 286. Pro27 Vt. 628. Pierce v. Paine, 32 Vt. 229. Gra-bate Court v. Gleed, 35 Vt. 24. (Changed by ham v. Chandler, 38 Vt. 559. statute, as to justice's judgments.) 21. After entry. After the entry of a suit upon the docket, it is under the control of the court until the actual entry of discontinuance by direction of the plaintiff. Conn. & Pass. R. R. Co. v. Newell, 31 Vt. 364. III. VENUE. 11. The common law, as to certain actions being local, has been superseded by our statute regulating the places in which actions shall be 22. Waiver of irregularity. A subsebrought; and none are local unless made so by statute. University of Vt. v. Joslyn, 21 Vt. 52. Hunt v. Pownal, 9 Vt. 411. June v. Conant, 17 Vt. 656. quent assent to an irregular continuance of a suit is sufficient to prevent a discontinuance. Collins v. Merriam, 31 Vt. 622. 23. In a suit returnable before a justice, the 12. Under the statute requiring scire facias plaintiff died before the return day. The case against sheriff's bail to be brought in the county was twice continued because of the inability of where the default, or neglect sued for, happens; the justice to attend, and three times on the -Held, that the action was well brought in request of the defendant, when the administraWindsor county by the State Treasurer, resid- tor entered to prosecute-it not appearing but ing and having his office there, for the default that this was on the next court day after his of the sheriff of Caledonia county in not serving appointment. Up to this time the plaintiff's and returning certain extents for State taxes. death had not been suggested upon the record. State Treasurer v. Kelsey, 4 Vt. 371. Held, that the action was not discontinued. Babcock v. Culver, 46 Vt. 715. 13. An action of trespass on the freehold before a justice must, like other actions, bel 24. Where a justice suit is discontinued by the non-attendance of the justice with the writ | plaintiff thereupon gave the defendant a written at the time set for trial, the lost jurisdiction can notice of discontinuance, and immediately be regained only by some voluntary, positive, brought a second suit for the same cause of affirmative act of the defendant, evincing a will-action and had his writ served, and afterwards, ingness or consent that the court proceed to hear at the same term, had an entry of discontinuand determine the case notwithstanding the ance of the first suit made upon the docket. irregularity. Where such objection was duly-Held, that the second suit was not vexatious, raised and insisted upon, but overruled by the and was not abated by the pendency of the first. justice, and terms were imposed upon the plain- Downer v. Garland, 21 Vt. 362. 616. tiff, which the defendant took, and two trials 30. If two writs be sued out at the same were had-Held, nevertheless, that the objec-time, the one first served abates the other; but tion was not waived. Pinney v. Petty, 47 Vt. not e converso. Morton v. Webb, 7 Vt. 123. 31. Identity of parties and cause of ac25. Notice of discontinuance. After an tion. In order that the pendency of a former action has been entered in court, and costs have suit should abate a later one, it is essential, not been incurred by the defendant, a notice of dis-only that the cause of action be the same in continuance given out of court cannot have the both suits, but that they be in favor of the same effect, without the consent of the other party, plaintiff. Held, that a pending suit in favor of of at once discontinuing the suit;-not even the payee of a promissory note, brought before where, also, a tender of the defendant's costs indorsement, did not abate a suit afterwards has been made, but not accepted. Jenney v. brought in favor of an indorsee of the same Glynn, 12 Vt. 480. 31 Vt. 370. Thomas v. Freelove, 17 Vt. 138. note. 26. A suit commenced by defective process 32. The pendency of a former suit, for part may be discontinued by a verbal notice, so as only of the matters embraced in a second suit, to allow the bringing of a new suit immediately will not abate the second suit, either in whole for the same cause of action, without abatement; or in part. Ballou v. Ballou, 26 Vt. 673. and, in the absence of proof to the contrary, the 33. Suit in another State. A suit will discontinuance will be presumed to have been not abate by reason of the pendency of a premade on account of such defect. Hill v. Dun-vious suit, between the same parties for the same lap, 15 Vt. 645. cause of action, in another State of the United 27. Notice of discontinuance need not be in States. McGilvray v. Avery, 30 Vt. 538. See writing to avoid the effect of a plea in abate- Stoughton v. Mott, 13 Vt. 175. ment; but must be in writing to deprive the defendant of his claim for costs. Ib. Ballou v. Ballou, 26 Vt. 673. But see Fullam v. Ives, 37 Vt. 659, as to last point. V. ABATEMENT BY PENDENCY OF FORMER SUIT. 34. in equity. The pendency of a prior suit in equity for the same matter cannot be pleaded in abatement of a suit at law; the remedy is by injunction in chancery. Blanchard v. Stone, 16 Vt. 234. VI. SURVIVAL. 28. Both pending at the same time. 35. Action for penalty. A prosecution The plaintiff had caused his writ to be served qui tam for usury abates by the death of the upon the defendant, but before the return day defendant; and if he dies after verdict and dursued out another writ for the same cause of ing the pendency of a motion in arrest, the court action, and gave it to an officer for service, who will not thereafter render judgment nunc pro lodged a copy of it with a return of the attach- tunc. Benson v. Edgerton, Brayt. 21. ment of property thereon in the town clerk's 36. Two joint creditors commence an action office. The officer then delivered to the defend-qui tam to recover the penalty against frauduant a written notice from the plaintiff of the lent conveyances, and one dies. Held, that the discontinuance of the first suit, and afterwards action survives to the other. Wright v. Eldred, delivered him a copy of the second writ and 2 D. Chip. 37. attachment.-Held, that the second suit was 37. Statute provision. Under G. S., c. not abated by the first, for that both were not 52, ss. 10-12, providing for the survival of pending at the same time--the first having been actions "for damages done to real or personal discontinued before any such service of the sec- estate," the action does not survive when the ond writ as called upon the defendant to answer tortious act affects the estate only indirectly,thereto. Whether the plaintiff had good cause, as in Barrett v. Copeland, 20 Vt. 244. Winor any cause, for discontinuing the first suit is hall v. Sawyer, 45 Vt. 466; but when it affects not a material inquiry. Kirby v. Jackson, 42 the estate directly, though it be not done to any Vt. 552. specific property, the action survives;—as in 29. A defective suit had been entered in Dana v. Lull, 21 Vt. 383. Bellows v. Allen, court and the defect pleaded in abatement. The 22 Vt. 108. 38. An action in favor of a town to recover common principles, be brought in the name of damages under G. S., c. 20, s. 31, for bringing the State, when the legal interest is in the State, a pauper into such town, does not survive --as trespass qua. clau. for entry upon the against the defendant's estate. Winhall v. Saw-State-house grounds and taking away the State's chattels. State v. Bradish, 34 Vt. 419. yer. 39. At common law, an action in the name 47. State treasurer. In an action of debt of husband and wife, for injuries to the wife, commenced before the passage of G. S. c. 85, does not survive to the husband, nor to her s. 16, upon the official bond of the State treasadministrator; but by our statute such action urer executed to "Benjamin W. Dean, Secretary survives to her administrator. Earl v. Tupper, 45 Vt. 275. 40. An action to recover damages for an unlawful arrest and imprisonment survives to the administrator of the party injured, as for a "bodily hurt or injury," under G. S. c. 52, s. 11. Whitcomb v. Cook, 38 Vt. 477. of the State of Vermont, and to his successors in office in behalf of the State of Vermont ;". Held, that such action could not be brought in the name of the State.-Held, also, that such action must be brought in the name of the obligee named, or, if he was out of office, then in the name of his successor in that office, the 41. This statute makes all actions survive, power to sue being treated as incident to the when the cause of action was for a physical in-office, on the principle that, pro tanto, the Secjury to the person caused in any unlawful retary of State is indued with a corporate manner. Poland, C. J., Ib. 482. capacity. State v. Bates, 36 Vt. 387. 42. Under G. S. c. 52, a wrongful act, 48. Same person both plaintiff and deneglect or default, causing death to another, fendant. An action at law cannot be sustainaffords two distinct causes of action; one, by ed, either upon common law principles, or under survivorship, in favor of the estate of the deany statute of this State, when the same person cedent to recover such damages as he sustained is one of the plaintiffs and also one of the dein his lifetime, which recovery becomes general fendants. Green v. Chapman, 27 Vt. 236. assets (Secs. 10, 11, 12 and 13); the other for Estes v. Whipple, 12 Vt. 373. the pecuniary injury resulting from such death to the widow and next of kin, to be prosecuted in form by the administrator, but only as trustee Needham v. Grand Trunk R. for their use. Co., 38 Vt. 294. VII. PARTIES. 1. Plaintiffs. 49. Legal interest. The right of action to recover for property sold is in him who has the legal interest in the property, not in him who has the equitable interest only. Heald v. Warren, 22 Vt. 409. 50. Instances. A purchased goods professedly for B, and took a bill of sale in the name of B, but in reality for himself, and paid for them himself. A afterwards sold the goods 43. No such person. That there is no such conditionally to C and procured C to give a person in existence as the plaintiff, may be receipt acknowledging that he had received the pleaded in abatement, or in bar, whether the goods of B, and to remain B's until paid for. action be professedly in the name of a corpora- This receipt A afterwards assigned to D. C tion, or of a natural person. Boston Type Foun- sold the goods to F and F to the defendant. dry v. Spooner, 5 Vt. 93. The goods not having been paid for-Held, 44. A suit was brought in the name of that after demand and refusal to deliver them, "Gray, Drew & Co." The defendant pleaded trover lay in the name of B therefor. Lord v. in abatement that there was no such person in Bishop, 18 Vt. 141. existence. Replication, that Gray, Drew & Co. 51. In a suit of A against B, the court imwere the plaintiffs, Dan Gray, John Drew and posed terms upon A as a condition for a conJohn Boardman.-Held, on demurrer, that Dan tinuance. A's solicitor thereupon promised B's Gray, &c., were not and could not become par- solicitor to pay the amercement, if he would inties to the record, and the plea was held suffi- form the court that the terms were complied cient; but held, also, that the defendant could with. He did so inform the court, and the "terms comtake no judgment for costs against Dan Gray, entry was made on the docket, &c. Gray v. Parker, 16 Vt. 652. plied with," and the cause was continued. In an action by B against the solicitor of A on such promise,-Held,(1), that the promise was on 45. Proprietors. The statute authorizing suits in the name of the "Proprietors" of towns, does not authorize a suit in the name of "Pro- good consideration; (2), that it was not within prietors of the undivided land" of a certain tract in a particular town. Proprietors, &c., v. Bishop, 3 Vt. 92. the statute of frauds, for that the amercement created no debt against A; (3), that the suit was well brought in the name of B, the party 46. The State. In the absence of legal for whose benefit the promise was made, Lampregulations to the contrary, a suit may, upon son v. Swift, 11 Vt. 315, but one of the plaintiffs. Cleaveland v. Grand Trunk R. Co., 42 Vt. 449. 52. The plaintiff's partner, H, purchased a horse of one K, with an agreement to let the plaintiff have the horse at the same price, if the 56. Non-joinder. The non-joinder of one plaintiff wished. The horse was put, kept and who ought to have been made a plaintiff may fed with other horses of the firm and used in be pleaded in abatement, or may be taken adthe partnership business for eight or ten days, vantage of on trial. Hilliker v. Loop, 5 Vt. when the plaintiff, without ever having ex-116. pressed his intent to take the horse, exchanged him with the defendant for another horse and $50, boot money, to be paid. By a subsequent arrangement between the plaintiff and H, the second horse was sent to market and sold on on his own account and took on board others, joint account. Held, that the property in the some as working hands and others as passenfirst horse became vested in the plaintiff, in-gers. Held, that none except B were answerdividually, and that he could recover the bootable for the act or neglect of B whereby the money in his own name, in an action on book.vessel was damaged. King v. Bevins, 1 D. Hatch v. Foster, 27 Vt. 515. Chip. 178. 2. Defendants. 57. Not participating. B hired a sloop 53. The plaintiff made a parol contract with 58. The defendant purchased land, then in the defendant, by which she agreed to give the the possession of a third person, who retained defendant all her property, real and personal, the exclusive possession, no rent being claimed and he agreed to support her through life and or paid, and built a dam on the land which set pay all her debts. At the time the contract back the water upon the plaintiff's land. This was made, she stated that she had some money was done without the knowledge or consent of and notes which she wished to keep, so as not the defendant. Held, that the defendant was to be obliged to call upon him every time she not liable therefor, not being a privy to the needed small necessaries, but that she consider- wrong either in fact or in law. Pettibone v. ed the money and notes to be his just the same. Burton, 20 Vt. 302. To this he assented, and immediately took pos- 59. The defendant and one W jointly pursession of all the property, except said money chased a lot of land, with an arrangement and notes which were retained by her, and ful-between them that the defendant should have filled his part of the contract by paying her the land and W the cedar timber upon it. debts and supporting her for nearly three years, There was a dispute as to the true division line when she left his house, refusing to live with between this lot and the plaintiff's lot adjoining, him longer, leaving the money and notes in and the defendant, having knowledge of it, supquestion locked up in her trunk in the room she posed and claimed that a former lawsuit had had occupied in his house. The defendant settled the line against the plaintiff's claim, and shortly after broke open the room and trunk so told W, who went on and cut the timber on and took possession of the money and notes. the land between the two lines, which turned In an action of trover therefor-Held, that even out to belong to the plaintiff. The defendant if the defendant should be regarded as the gen- took no part, nor advised, aided or assisted W eral owner of such money and notes, and not in cutting the timber, except that he let his merely as having inchoate rights under a con- hired man assist W and charged W therefor. tract executory, the plaintiff had, under the con- Held, that the defendant was not liable as a tract, such powers, coupled with an interest, viz., participator in the trespass of W. Langdon v. a right of possession and to expend the proper- Bruce, 27 Vt. 657. ty for her necessities, as that she could maintain the action. Lamb v. Clark, 30 Vt. 347. 60. The defendant, by invitation of A, rode with him from Barton to Newport with the 54. Joint interests. By contract between plaintiff's team, which A had hired to go the plaintiffs, one furnished a boat and the other only to Barton, and this was known to the deran it for transportation of merchandise, they fendant, but he exercised no control over the sharing equally the profit and loss of the busi- team. In an action of trespass,-Held, that ness. Held, that for a loss of the boat by the the defendant was not liable. Hubbard v. negligence of the defendant in towing it, a joint Hunt, 41 Vt. 376. action lay for the value of the boat, it being in the joint use of the plaintiffs. White v. Bascom, 28 Vt. 268. 61. The assignor of a note not negotiable is not liable for the misuse of process in a suit on such note in his name, where he has no interest or participation in the suit, or the wrong complained of. Ross v. Fuller 12 Vt. 265. 17 Vt. 55. Held, that where two have a joint interest in the damages caused by the destruction of buildings by fire, they may maintain a joint 165. action to recover therefor against the person 62. Otherwise where he does so participate. by whose fault such destruction was caused, Tichout v. Cilley, 3 Vt. 415. although the legal title to the buildings was in 63, For the irregularity of an officer in exe |