and this must be done within the two hours, or was ten dollars, although the declaration was the appeal is irregular. Webb v. Hopkinson, 10 Vt. 544; and see Finney v. Hill, 11 Vt. 233. Arnold v. Brooks, 36 Vt. 204.

in two counts each claiming ten dollars, but presumed to be for the same subject matter, and where there was nothing in the plaintiff's 15. Where a party had notice of a suit be- written exhibit or specification, or by the fore a justice, and sent his son to appear for declaration itself, showing that the demand was him and take an appeal, and the son appeared above ten dollars; -Held, that the action was and consented to a judgment, but through mis- not appealable, and could not be made so by a apprehension, neglected to enter bail in sea- fictitious plea in set-off. Weston v. Marsh, 12 son for an appeal, and execution issued upon Vt. 420.

the judgment;-Held, that he was not entitled

24. Exhibits. Whenever the plaintiff's spec

to relief by petition under the Act of 1829, for ification or exhibit, in an action before a jushaving been "illegally refused" an appeal; tice, exceeds $10, so that the defendant has and judgment contra below was reversed. Fin- the right to litigate matters described in it to an ney v. Hill.

2. From what judgment.

16. Where a justice upon a hearing and trial rendered a judgment that the plaintiff become non suit;-Held, this being a trial upon the merits, that an appeal lay from the judgment; that its character was not changed by misnaming it. Smith v. Crane, 12 Vt. 487.

17. A judgment by a justice in favor of the plaintiff for costs alone, although clearly irregular, is such a judgment as either party can appeal from. McDaniels v. Johnson, 36 Vt. 687.

3. In what cases.

18. A prosecution founded on the Act of 1807, s. 3, entitled "an act to punish undue speculations," &c., was held appealable. niman v. Robinson, 5 Vt. 569.

19. An appeal does not lie from the decision of a justice, under the statute, that an extent issue against a collector of taxes for delinquency. Griswold v. Rutland, 23 Vt. 324.

amount exceeding $10, the action is appealable; and this right of appeal the plaintiff cannot limit by demanding not more than $10 in his writ and declaration. Williams v. Mason, 45 Vt. 372. Church v. Vanduzee, 4 Vt. 195. Conn. & Pass. R. R. Co. v. Bates, 32 Vt. 420.

25. The defendant subscribed for one share of the plaintiffs' stock, and thereby contracted to pay the plaintiffs $100 in ten equal instalments, no part payable till the performance of a condition precedent. In an action before a justice, the declaration set forth this contract, averred performance of the condition, and claimed to recover the first instalment under an ad damnum of ten dollars. Held, that the action was appealable. Conn. & Pass. R. R. Co. v. Bates.

26. In general assumpsit before a justice, the ad damnum in the plaintiff's writ and the Pen- sum demanded in the declaration was ten dollars. The debit side of the plaintiff's specification on trial was $38.32, and the credit side $32.16, leaving a balance of $6.66--for which balance, with 80 cents interest, the plaintiff obtained judgment. Held, that by reason of the 20. As depending on amount in contro- specification, or exhibit, the action was apversy. Where the ad damnum in a justice pealable. Williams v. Mason, 45 Vt. 372. writ is over ten dollars, the suit is appealable | 27. In an action of book account before a by either party, irrespective of the real amount justice, there was nothing in the writ, nor in of the claim presented. Fuller v. Howard, 6 the specification or exhibits produced by the Vt. 561. plaintiff on trial, which made the case appeal21. In actions of tort—as trover-where the able. The defendant, on cross-examination, damages are open and uncertain, the right of called out the plaintiff's book, on which apappeal from a justice is to be determined by the peared charges, in all, exceeding ten dollars. ad damnum in the writ; and where this is set at Held, that the book, drawn out in this way, ten dollars, the case is not appealable, though could not be regarded as the plaintiff's exhibit, the value of the property named in the declara- and that the case was not thereby made appealtion is set at more than ten dollars, and the able, -the judgment, in such case, being a bar plaintiff's evidence may be that it was worth to a recovery for the items not presented. Warmore. (G. S. c. 31, s. 70.) Cole v. Goodall, ren v. Newfane, 25 Vt. 250. 39 Vt. 400. See Church v. Vanduzee, 4 Vt. 195.

28. Burden on appellant. A party appealing from a justice judgment must show 22. Fictitious offset. A suit is not made affirmatively that the county court has appelappealable by the pleading of a fictitious offset, late jurisdiction. Where the declaration con-as where the defendant introduces no evi- tained three counts, each concluding with an dence to sustain it, nor excuse therefor. Brush|ad damnum of ten dollars, but all descriptive v. Hurlburt, 3 Vt. 46. of a single transaction and apparently for one

23. Where the ad damnum in a justice writ cause of action;-Held, that the case was not

appealable. Persons v. Center T. Co., 20 Vt. of the justice in an action of trespass qua. clau, 170. where the title to land came in question, was 29. Action on note. Under the statute not conclusive of the title, inasmuch as the disallowing an appeal from a justice in any judgment was vacated by the appeal, and such action upon a note, &c., of less than $20 ;- payment did not, in this respect, operate as an Held, that an appeal lay, nevertheless, where affirmance. Small v. Haskins.

an offset was pleaded and tried, the subject| 37. Entry of appeal. An appeal from a matter of which would have entitled the parties justice takes the case to the county court as it to an appeal, if the action had been brought stood before the magistrate, and it stands upon upon it. Baker v. Blodget, 1 Aik. 342. the same pleadings [as, a plea in abatement], unless new pleadings are filed. Whittaker v. Perry, 37 Vt. 631.

30. A justice suit upon a note exceeding twenty dollars, but indorsed below ten dollars, the ad damnum in the writ being ten dollars, 38. The Act of 1866, No. 37, relating to where no plea in offset is filed, is not appeal- appeals from judgments of justices, does not able under the act of 1821. Boardman v. Har- abridge the right of the appellee under G. S. c. rington, 9 Vt. 151. G. S. c. 31, s. 70, has the 31, s. 64, to enter the appeal for affirmance. Ide Sumner v. Jones, 24 Vt. v. Story, 47 Vt. 62.

same construction.

320.

39. Certificate of "wilful and malici31. An appeal lies from a justice in an ac-ous." Where the party appealing from a justion upon a promissory note for less than $20, tice judgment does not enter his appeal in the made payable with interest, when the amount, county court and the judgment is there affirmed by adding interest, exceeds $20. Smith v. on the complaint of the appellee, it is affirmed Smith, 15 Vt. 620. with all its incidents, among which is the adju

32. An action before a justice upon a prom-dication that the cause of action arose from the issory note given for more than $20, although|wilful and malicious act of the defendant, &c. indorsed below $20, but not below $10, where Reynolds v. Provan, 31 Vt. 637.

the ad damnum in the writ exceeds $10, is ap- 40. Held, that where a justice judgment, pealable. Sumner v. Jones, 24 Vt. 317. Tyler appealed from by the defendant, is brought into v. Lathrop, 5 Vt. 170. 9 Vt. 152. 15 Vt. 622. the county court by the plaintiff on complaint 33. In a justice suit the declaration counted for affirmance, the court can only affirm the upon two promissory notes, both amounting to judgment as rendered, and cannot grant a cerless than $20, and had a count for $20 money tificate for a close jail execution where none had and received [ad damnum $20]. On was granted by the justice. Spaulding v. trial, the plaintiff offered in evidence only the Woodworth, 42 Vt. 570. Barrett, J., dissenttwo notes, and waived the money count. Held, ing. that the case was not appealable. Cooper v. Miles, 16 Vt. 642.

4. Proceedings after appeal.

41. Copies of appeal papers. An appeal from a justice, entered in the county court upon appeal papers not properly certified (as, by the county clerk instead of the justice), gives the court jurisdiction, so that, notwithstanding a 34. Tender of judgment. After an appeal motion to dismiss, the cause may be continued from a justice judgment, the tender of a con- and amended copies filed, and the court may fession of judgment before the same person, proceed to trial and judgment. Carruth v. but who was not then in office as a justice, is Tighe, 32 Vt. 626. Ib. 778. See Goodenow v. nugatory, and will not avail to prevent an Stafford, 27 Vt. 437. Orange v. Bill, 29 Vt. affirmance. Smith v. Fisher, 17 Vt. 117.

442. 35. Payment. Where the plaintiff ap- 42. An appeal from a justice will not necespealed from the judgment of a justice against sarily be dismissed on motion, where the appeal him, and more than twelve days before the copies do not disclose the right of appeal, since term of court to which the appeal was taken such right may grow out of the character of the paid to the defendant (or to the justice), accord- defense, which may not appear in the copies; ing to the statute, the costs allowed to the de- and the presumption is in favor of the regularity fendant, and the appeal was not entered in the of the appeal, until the contrary is shown. county court-Held, that this operated as a Johnson v. Williams, 48 Vt. 565. retraxit, or an open and voluntary renunciation 43. New copies of appeal from the judgof the suit and cause of action, and was a bar ment of a justice cannot be filed in the county to a further action or claim for the same cause court in vacation, after final judgment on the or duty; and that, to this extent, the effect was copies originally filed, so as to make them part the same as if the judgment had been affirmed of the record,-not even by the allowance of in the county court. Catlin v. Taylor, 18 Vt. the county judges. Wood v. Davis, 48 Vt. 106.

Small v. Haskins, 26 Vt. 209.

36. In such case,--Held, that the judgment

319.

IV. APPEAL FROM PROBATE COURT.

1. What order or decree may be appealed from.

ferred upon him, and that no appeal lay from his proceedings. Downer v. Downer, 9 Vt. 231. 52. Guardian. By the probate act of 1821

| (Slade's stat. 333, s. 7) an appeal lies from an

to an idiot, non compos, &c. Shumway v. Shumway, 2 Vt. 339. 8 Vt. 390.

44. Final order and effect. The order, appointment by the probate court of a guardian sentence, decree or denial of the probate court from which an appeal lies must be a final one— that is, it must be a final disposition of the 53. An appeal does not lie from the decree of subject matter before the court. An appeal the probate court refusing to appoint a guardian from the main question takes with it all inci- of a person alleged to be insane, nor from a dedental orders, and makes the whole, in effect, cree discharging such guardian, on the ground the subject of revision. Adams v. Adams, 21 that the ward is no longer a proper subject of Vt. 162. guardianship. Nimblet v. Chaffee, 24 Vt. 628. 54. Homestead. Proceedings for setting

45. Interlocutory. From a proceeding in the probate court, under G. S. c. 52, s. 7, for out the homestead of a deceased housekeeper, the examination of a party charged with em- for the benefit of his widow and children, fall bezzling the goods, &c., of an estate, no appeal within the general jurisdiction of the probate lies until the case is finished in that court. An court in the settlement of estates; and a right appeal from an order that the party answer of appeal is given, under the general provisions certain interrogatories is premature, and will be of G. S. c. 48, s. 30, from an order or decree dismissed. Kimball v. Kimball, 19 Vt. 579. confirming the report of the commissioners in 46. A decree of the probate court, that an setting out the homestead. Byram v. Byram, administrator ought to render his account, is 27 Vt. 295. True v. Morrill, 28 Vt. 672. not a final decree from which an appeal lies in the first instance, but is rather interlocutory; though it affords a sufficient basis for a suit upon the bond conditioned to perform the orders of the court. French v. Winsor, 24 Vt. 402.

2. Who may appeal.

55. Party "interested." Under the statute authorizing any person "interested in any order, &c." of the probate court to appeal therefrom, 47. An order of the probate court, refusing such person must have some legal interest to accept and record the report of the commis- which may, by such order, &c., be either ensioners of claims, being matter of discretion, is larged or diminished,-as, heir, creditor, legabut interlocutory, and is not such a final decree tee, widow, administrator, &c. Woodward v. as is the subject of an appeal. Hodges v. Spear, 10 Vt. 420. Hemmenway v. Corey, 16 Vt. Thacher, 23 Vt. 455.

225.

48. An appeal does not lie from the pre- 56. A person who has no interest in an sentation of a contingent claim to commission-estate cannot appeal from the decree of the ers of an estate, but only from the subsequent probate court, assigning dower in the land which allowance, or disallowance. Hobart v. Herrick, he claims adversely. Hemmenway v. Corey. 28 Vt. 627. 57. The administrator of an heir to an estate

49. An order of the probate court renewing has the same right of appeal from commissiona commission of claims on an estate is strictly ers, as the heir would have had if living. Arinterlocutory, and no appeal lies until the com-nold v. Waldo, 36 Vt. 204.

ing in and acceptance of the commissioners' re- 58. Under G. S. c. 53, s. 27, an appeal from port. Timothy v. Farr, 42 Vt. 43. commissioners, other than by the executor or

50. Special case. The refusal of the pro-administrator, can be taken only by a creditor, bate court, on petition, to reopen and revise a devisee, legatee or heir; and by such only in former decree allowing an administrator's ac- case the executor or administrator declines to count, which petition was preferred after the appeal. Such interest of the appellant, as

time for an appeal from such decree and a de- found by the probate court, must appear upon cree for distribution had passed, was held, the record sent up; but such finding is not conunder the circumstances, to be the subject of clusive and may be inquired into on appeal. an appeal. Adams v. Adams, 21 Vt. 162. 28 Gilbert v. Howe, 47 Vt. 402.

Vt. 720.

59. The intestate's widow, being administra

51. Personal discretion. A bequest was trix of his estate, married, whereby her authorimade to a trustee to be applied to the benefit of ty was extinguished. Thereupon the intestate's the cestui que trust, as should be found neces- children applied to the probate court for the sary in the judgment and discretion of the judge appointment of P as administrator de bonis non, of probate for the district of H;-Held, that and the widow applied for the appointment of the judge of probate in the exercise of his judg-her then husband. The court appointed P.ment and discretion acted personally, and not Held, that an appeal lay by the widow. Hilofficially, that no new jurisdiction was con-liard v. McDaniels, 48 Vt. 122.

3. Mode of appeal, and procedure thereafter. |at once, and that the appointment of a special administrator, pendente lite, became necessary; 60. The application. Where an appeal and where, in such case, the decree was affirmfrom a decree of the probate court is prayed for ed on appeal:---Held, that the expenses of the and the bond given within the 20 days, the ap- special administration, beyond what would have peal is not lost by the court's neglect beyond the been necessary if the estate had been settled by 20 days to allow the appeal. Cummings v. the executors without an appeal, are “intervenHugh, 2 Vt. 578. ing damages" within the meaning of the appeal bond. Sargeant v. Sargeant, 20 Vt. 297.

61. An application for an appeal from commissioners, under G. S. c. 53, s. 19, is "filed in 69. But that the words, "intervening damathe register's office," if duly left with the judge ges and costs occasioned by the appeal," did not of probate. Robinson v. Robinson, 32 Vt. 738. cover the expenses of the appellee in following 62. An appeal from the probate court was the appeal, beyond his taxable costs. Ib. left at the residence of the judge between 11 70. Guardian. A claim in behalf of a non and 12 o'clock at night of the last day for tak-compos, having no guardian, was presented to ing an appeal, and the appeal was filed and commissioners, which they disallowed for want lodged in the register's office on the morning of authority in the person presenting it. That following. It not appearing that the appeal person was afterwards appointed guardian and came to the possession and knowledge of the took an appeal. Held, that such appeal was an judge until such following morning, it was adoption and ratification of the act of presentdismissed, as not taken in time. Robinson v. ment and, on motion to dismiss, the appeal was Robinson. held regular. Thurston v. Holbrook, 31 Vt.

63. After the appeal bond is taken, approv-354.

ed and filed, and the appeal has been allowed, | 71. Notice of appeal. Where an appeal the probate court has no power to permit the from the probate court is entered in the appelcancelling of such bond by substituting another. late court without giving the appellee the reBlake v. Kimball, 22 Vt. 632. quired statute notice, the practice is not to dis64. Stating objections. On an appeal miss the appeal, but to continue the case, orderfrom the decree, &c., of the probate court the ing notice to be given. Woodward v. Spear, appellant should state, in writing, his objections 10 Vt. 420. Meech v. Meech, 37 Vt. 414. thereto, and this lays the foundation for all further pleadings and proceedings. Howe v. Pratt, 11 Vt. 255. Baker v. Goodrich, 1 Aik. 395. (See G. S. c. 48, s. 30, and seq.)

72. But this is matter of discretion, not revisable on exceptions. Treasurer v. Raymond, 16 Vt. 364. Rutland & Bur. R. Co. v. Wales, 24 Vt. 299.

65. No precise form of excepting to the 73. Objection waived. An objection to order or decree appealed from has been estab- the competency of commissioners appointed by lished. It is necessary that every substantial the probate court to set out dower, cannot be averment upon which the appellant relies should urged on an appeal from a decree accepting be made, and such as are not denied are of their report. Kendrick v. Harris, 1 Aik. 273. course considered as admitted. Kendrick V. Harris, 1 Aik. 273.

74. An objection that an appellant from a decree of the probate court had not sufficient 66. Appellant from an entire decree of the interest to entitle him to an appeal the county probate court, which embraced distinct matters, court is not bound to consider, when first taken was held confined, on his appeal, to the matters after issue joined and the trial begun. Stevens complained of in his objections filed. Banfill v. Joyal, 48 Vt. 291. v. Banfill, 27 Vt. 557.

75. Appeal from commissioners. An

67. Withdrawing an appeal. Where an appeal does not lie from the disallowance by appeal was taken from the appointment of an commissioners, to an amount exceeding $20 in administrator and a paper was afterwards filed the aggregate, upon two or more several and in the probate court by the appellant withdraw- distinct claims, required to be presented in the ing the appeal, which was not entered in the names of several parties, although both claims county court;-Held, that the appeal operated are owned by the same party, where the disas a mere suspension of the decree of appoint-allowance on each is less than $20; as where ment, and that, upon such discontinuance of one claim was in favor of A and B, and the other the appeal, the power of the administrator re- in favor of A and C, and A owned and presentvived and took effect from the date of his ap-ed both. Barlow v. Thrall, 11 Vt. 247. pointment. Fletcher v. Fletcher, 29 Vt. 98. 76. In taking an appeal from the allowance 68. Probate of will-Intervening dam- by commissioners of a claim against an estate, ages. Where an appeal from a decree of the minuteness and precision are not required in probate court allowing a will was taken subse- stating the objections; and if, instead of being quent to the issuing of letters to the executors; - manifestly frivolous and impertinent, they tend to show that the claim ought further to be liti

Held, that the powers of the executors ceased

gated, it must belong to the court of probate upon the appeal bond-the appeal vacating the to determine whether they are stated in terms judgment, and the non-entry of the appeal opersufficiently positive and definite. Where the objection stated was that the claim was unjust, and the probate court allowed the appeal,Held, that the county court erred in dismissing the appeal on motion, for want of a written statement of objections. Barnard v. Barnard, 16 Vt. 223.

ating as a discontinuance of the suit and carrying the bond with it-and this, although the appellee had no notice of the appeal and no order of notice was made by the probate court. Probate Court v. Gleed, 35 Vt. 24.

82. Declaration. On appeal from commissioners, the court allowed the claimant,

77. The prayer for an appeal "from the upon terms, to file a declaration, where he had decision and report of commissioners of claims" omitted to do so in the probate court, as re(G. S. c. 53, s. 19), was held sufficient, where ex-quired by statute. Francis v. Lathrope, 2 Tyl. pressed to be "from the order and decree of the 372. probate court"-the court having made a decree 83. On an appeal from commissioners, the accepting the report and ordering it to be re- claimant must declare according to the nature corded. Robinson v. Robinson, 32 Vt. 738. of the several classes of his demands, in the 78. An appeal from commissioners under G. S. c. 53, s. 27, is not perfected without the giving of a bond as well to secure the estate as the adverse party, and if the bond be only to secure the adverse party, the appeal will be dismissed, and this upon motion, if the defect appear upon the record; nor can the defect be supplied by the filing of a new bond in the county court. Arnold v. Waldo, 36 Vt. 204.

several forms of action and counts appropriate to each, though resulting in different forms of trial; and these must be met by various pleas suited to their nature. Adams v. Corbin, 3 Vt. 372. Abbott v. Keith, 11 Vt. 525.

84. Brings up whole claim. Where all the items of the plaintiff's claim before commissioners were recoverable in one suit and one form of action and he appealed, but the appeal 79. A report of commissioners was returned taken was general; - Held, that the appeal to the probate court and endorsed, Filed, ac- brought his whole claim before the county cepted and ordered to be recorded this 31st court-as well the items allowed, as those disMay, 1860." Afterwards, this entry was made allowed. Morse v. Low, 44 Vt. 561. thereon, "On re-examination of this report, it is rejected for errors therein found and sent back to the commissioners for correction this 15th day of August, 1860." The plaintiff afterwards presented his claim to the commissioners, and, within twenty days from the final re- 213. Woodbury v. Woodbury, 48 Vt. 94. turn and acceptance of the report, took an

85.

and set-off. An appeal by a claimant from the allowance by commissioners of an offset to his claim, vacates the decision and opens the case, both as to the offset and the principal claim. Stearns v. Stearns, 30 Vt.

86. The effect is the same where the adminappeal. Held, that the appeal was taken in istrator appeals from the allowance of the claim due time; that the probate court had power of presented-or filed objections under the Stat. its own motion, and summarily, to annul the 1821. (Slade's Stat. 354.) Allen v. Rice, 22 order of record, and to recommit the report, on Vt. 333. account of errors apparent on its face, so long as it was not actually recorded. Adarene v. Marlow, 33 Vt. 558, and see Hodges v. Thacher, 23 Vt. 455. 32 Vt. 739.

87. Evidence. Where the commissioners' report does not show what claims were exhibited, this may be shown on appeal by evidence aliunde. Woodbury v. Woodbury, 48 Vt. 94.

80. Appeal not entered. On the allowance of mutual claims by commissioners of an estate, 88. Bail in appellate court. On the grantthe administrator appealed from the allowance ing of an appeal from commissioners on petitiagainst the estate and duly filed his objections. tion to the supreme court, bail for the appeal was The appeal was not entered at the next stated entered in that court. Wing v. Bates, 16 Vt. session of the county court. Held, that the ad- 148. ministrator could not at a later term enter a 89. Creditor appealing. Where a credicomplaint for an affirmance of the allowance in tor of an estate took appeals, under the statute, favor of the estate, or for his costs;-that by the from the allowance by the commissioners of neglect of both parties to enter the appeal at the claims against the estate presented by the adfirst term, the whole proceedings were discon- ministrator and others, and prosecuted such tinued; and that the claim against the estate appeals at his own expense and succeeded, and was forever barred;-as to the effect of such costs were awarded;-Held, that such creditor proceedings upon the claim allowed in favor of was entitled to the costs; and the administrator the estate, quære. Allen v. Fletcher, 14 Vt. 274. having received the costs and executed releases 81. Where an appeal was taken from an therefor, chancery decreed that he pay the allowance of commissioners, but was entered same to such creditor. Sutton v. Sutton, 21 by neither party;-Held, that no action lay Vt, 74.