60. Where a submission to arbitration is by it was procured by the plaintiff by false testideed, an award, made in pursuance of it, is a mony. bar to an action for the recovery of any matters included in the submission, though not in fact brought before the arbitrators. Robinson v. Morse, 26 Vt. 392.

Woodrow v. O'Conner, 28 Vt. 776. 67. in equity. Partiality or corruption in the arbitrators, or fraud of the party in obtaining an award, are grounds of defense exclusively of equitable cognizance. Emerson v. Udall 13 Vt. 477.

61. So, where the submission is in writing, and under a rule of the probate court authoriz 68. An award is in itself conclusive of the ed by statute. Barker v. Belknap, 39 Vt. 168. legality and justice of the claim submitted and 62. The submission of the subject matter of allowed, and of all inferences to be drawn therea pending suit to arbitration and an award ac from. To avoid an award upon the score of cording to the submission, operate in law to dis- fraud, it is necessary to prove facts not within continue and put an end to the suit. Rixford the scope of the inquiry before the arbitrators, v. Nye, 20 Vt. 132. Babcock v. School District, and from their nature not concluded by the 35 Vt. 250.

award; simply to show that the claim allowed was unfounded, and that the party presenting it knew it, is not sufficient. Emerson v. Udall, 8 Vt. 357.

63. The plaintiff had a claim against the defendant, an officer, for the wrongful attachment of his last cow upon a writ in favor of G. The plaintiff and G afterwards submitted certain specified matters, and "all matters existing between them" to arbitration, and an award was made, this claim not being presented or adjudicated. In an action of trespass against the officer,-Held, that the award was no defense, for that the plaintiff was not bound to resort to G instead of the officer for remedy, even although he might have done so, and the officer 365. was not a party to the submission. v. Hawkins, 38 Vt. 693.

69. In order to warrant the setting aside of an award for fraud of a party, such party must, either by suggestion of falsehood or the suppression of truth, have presented to the arbitrators a state of facts in regard to the merits of his claim which were factitious, and which he at the time believed to be such. Redfield, J., in Emerson v. Udall, 13 Vt. 484. Howard v. Puffer, 23 Vt.

Robinson 70. An award will not be set aside by a court of equity on the ground that one of the parties, without any mistake as to the facts, misapprehended one of the legal consequences of the award-as, the settling of title to land. Howard v. Puffer, 26 Vt. 637.

64. The defendant had leased premises to the plaintiff for five years, and during the first year they agreed to "dissolve," and left to arbitrators to determine what sum the defendant should pay the plaintiff in consideration that 71. No mistake in matter of fact, dependthe plaintiff would, at the end of the first year, ing upon the misjudgment of an arbitrator, surrender the term and premises. The arbitra- whether in weighing evidence, or the constructors awarded a certain sum. Before the ex- tion of contracts or written admissions, will piration of the year the plaintiff assigned the avoid an award. The mistake must be one lease and remainder of the term to his son, and which shows that the arbitrator was misled, deinformed the defendant thereof and that he did luded, and so far misapprehended the case, that not consider himself bound by the award, as he failed to exercise his real judgment upon itthe defendant had not paid; that he had nothing e. g. a mistake in computation. Redfield, C. J., further to do with it, and the defendant must in Vanderwerker v. Vt. Central R. Co., 27 go to the son about it. The defendant did go Vt. 130, 137.

to the son and paid him $100, to surrender the 72. The court refused, on bill in equity, to premises. In an action on the award;-Held, set aside an award for misconduct of the ar(1) that the award was payable only when the bitrators, where they were not satisfied that the surrender was to be made; (2) that having misconduct was intentional, or sufficiently gross, refused to surrender and having assigned the although the court characterized it as "discredestate, the plaintiff could not recover; (3) itable." Cutting v. Carter, 29 Vt. 72. that as the defendant acted upon the notice 73. But where a party to an arbitration progiven him in making the purchase of the son, cured a false allowance in his favor by withthis operated as an estoppel in pais to any claim holding from the inspection of the other party of the plaintiff. Soper v. Frank, 47 Vt. 368. his books and papers, from which he was con65. Impeachment of award at law. scious the incorrectness of his claim would apNeither mistake, nor irregularity of conduct of pear;-Held, that this was such a fraud as dearbitrators, nor both, not going to the whole manded setting aside the award. Ib. award, is a defense in an action at law upon the

award. Shepherd v. Briggs, 28 Vt. 81.

IV. ACTION ON AWARD.

66. In an action upon an award, or an arbitration note, the award, like a judgment, can- 74. Under a general submission arbitrators not be collaterally impeached by evidence that may award money, and releases; and assump

sit lies upon an award, though the submission | make arrests, and take and detain the instrucontains no express promise to abide the award. ments of crime. In many instances, a private Bellows v. Barnard, Brayt. 29. person may do the same. Spalding v. Preston,

75. If parties agree to submit, and actually 21 Vt. 9. In re Powers, 25 Vt. 261. do submit, and an award is made in the prem- 2. to demand assistance. In the makises, an agreement to abide the award is implied, ing of arrests for any criminal matter or cause, though not expressed in the submission. Stew- a sheriff, or other like officer, may command suitable aid and assistance (G. S. c. 12, s. 11);

art v. Cass, 16 Vt. 663.

76. Where an award orders acts to be done and any person so assisting may justify by the by both parties within a certain time, the party order of a known public officer, although the who refuses to perform within the time set can- officer be not justified by his process. Mcnot afterwards compel the other party to per- Mahan v. Green, 34 Vt. 70.

form. Anon. Brayt. 29.

3. If there be a misnomer of the defendant

77. Certain property in the custody of the in a criminal process, whether the arrest of the defendant was awarded by arbitrators to the person intended cannot be justified by the ofplaintiff. At a later date, the parties executed ficer under the warrant-quare: The order of mutual releases. Afterwards the defendant re- the officer will justify the person assisting him fused to surrender the property and converted in such case. Ib.

it. Held, that an action therefor did not lie 4. Duty to arrest. An officer having an upon the covenant to perform the award, but execution against the body of a party whom he trover. Bridgeman v. Eaton, 3 Vt. 166. holds in arrest upon criminal process, or who is 78. Arbitration notes. An arbitration present while the party is so under arrest, is note—that is, a promissory note executed by one bound to wait the opportunity to make an arparty to the other, subject to indorsement to rest upon the execution, unless necessarily precorrespond with the award, and deposited with vented; and for neglect so to do the officer was the arbitrator to be delivered to the recovering held liable. Warner v. Lowry, 1 Aik. 55. party-takes effect as a valid obligation upon 5. Writ of protection. A writ of protecits delivery to the party in whose favor a valid tion ad textificandum suspends all civil process award is made; and a recovery may be had against the subject of it, while coming to and upon it, on the money counts. Woodrow v. attending upon court, and for a reasonable time O'Conner, 28 Vt. 776. Bagley v. Wiswall, for returning home after the rising of the court. Brayt. 23. Hall ex parte, 1 Tyl. 274.

79. Declaration. In declaring upon an 6. Privilege from arrest. Parties, witaward, it is sufficient to set forth that part on nesses and bail are privileged from arrest, in a which the plaintiff relies, and to say that among civil suit, during their attendance upon court, other things the arbitrators awarded, &c. or before any tribunal sitting in the nature of a Blanchard v. Murray, 15 Vt. 548. court in the administration of justice, and in

80. Damages. Where, as a consideration going to and returning from it, whether comfor submission to arbitration, the plaintiff re-pelled to attend or not. Fletcher v. Baxter, 2 leased his original cause of action, and the de- Aik. 224. fendant refused to proceed according to the 7. The arrest of one having special privilege submission;-Held, that the rule of damages or exemption from arrest is not void, but merely was the plaintiff's cost and expenses, and the value of the claim or cause of action released. Day v. Essex Co. Bank, 13 Vt. 97.

voidable. The privilege may be waived. It cannot be pleaded and put in issue to the jury, but is ground for a motion to the court for a 81. Where parties agreed in the submission, discharge, or for release on habeas corpus. Ib. each to perform the award, or, on failure, to 8. Where the principal was arrested while pay to the other $500 in lieu of all other dam-attending court as a witness, and gave bail and ages, and the award was for the payment of a suffered judgment to pass against him without sum of money less than $500;-Held, in an ac- claiming his privilege;-Held, that he had tion on the award, that the plaintiff could re- waived his privilege, and that it was no decover only the amount of the award with inter-fense to an action against the bail. Ib. (See Whitcomb v. Preston, 13 Vt. 53. G. S. c. 33, s. 84.)

est.

ARREST.

9. One who is personally privileged from arrest must take the earliest opportunity to assert his privilege to prevent or defeat an arrest, or he will be held to have waived his privilege; and it cannot be afterwards asserted, so

1. Right to arrest. For the purpose of as to render his imprisonment unlawful, in an preventing the commission of crime, or breach action for false imprisonment. So held, where of the peace, public officers may, upon common the plaintiff was again imprisoned upon an exprinciples, without any statute authorizing it,ecution regular on its face, after having been

.

discharged on taking the poor debtor's oath. use the common jail for such purpose. Wood v. Kinsman, 5 Vt. 588. Brayt. 118.

land, C. J. Ib.

Po

10. An officer, holding a writ of attachment 18. An officer having arrested one as an abagainst a person attending a justice court as a sconding debtor, may lodge bim temporarily in suitor, arrested him, but recognizing his privil- the county jail for safe keeping, in view of the ege discharged him from arrest, and so made debtor's right to procure bail or to submit himreturn, making no other service. Held, that self to examination in discharge of the arrest. this was no service of the writ. Wheeler v. But such custody remains in the officer until Barry, 6 Vt. 579. transferred to the jailer by a full commitment upon the writ, by leaving with him a copy, &c., as provided in G. S. c. 33, s. 61. Kenerson v. Bacon, 41 Vt. 573.

11. That the defendant was attending court as a witness when he was arrested upon the writ, is no cause for abating the writ. Booraem v. Wheeler, 12 Vt. 311. Changed by G. S. c. 33, s. 84 (1849).

12. The giving of bail is not a presumed waiver of privilege from arrest. Washburn v. Phelps, 24 Vt. 506 (1852).

19. Until such full commitment, the debtor's right to be taken before the authority signing the writ for examination in discharge of his arrest continues; and if, after such request made at any time before such full commitment, 13. G. S. c. 33, s. 84, giving persons "priv- the officer neglects or refuses to comply thereileged from arrest' the right to plead such with and so commits the debtor, he becomes a privilege in abatement, is intended for those trespasser ab initio, and liable for false imprionly who are exempt from arrest on peculiar sonment. Ib.

66

grounds, as parties and witnesses, attorneys, 20. Under the Act of Nov. 5, 1845 (see G. members of the legislature, &c., and does not S. c. 33, s. 78);-Held, (1), that where a debtor include a person not so 'privileged," who is was arrested on an execution issued from the arrested upon the filing of an affidavit that he county court, the county clerk was the proper is about to abscond, &c. Bank of Vergennes authority to examine him for a discharge; (2), v. Barker, 27 Vt. 243. that he was entitled to such examination in a 14. The statute (G. S. c. 36, s. 20) exempt-case where the execution issued without other ing a party "in any cause " from arrest while affidavit than the one upon which the original going to, attending or returning from the writ issued; and (3), that he was so entitled trial of such case, does not extend to the respondent in a criminal prosecution. Scott v. Curtis, 27 Vt. 762.

15. Arrest on capias for debt. If one assume to justify by special process of capias, he should state such facts as justify that form of process. Wright v. Hazen, 24 Vt. 143.

16. An officer arresting one on a capias as an absconding debtor cannot be required to take the debtor for examination before the justice signing the writ, while the justice is out of his proper county, since the justice has no power to perform judicial acts there. Whitcomb v. Cook, 38 Vt. 477.

after he had been committed to jail and had given a jail bond, where he was not chargeable with neglect in seasonably claiming his privilege and had not waived it. Davis ex parte, 18 Vt. 401.

21. Discharge by judge. The written order of a county judge discharging a debtor from arrest, made in due form under G. S. c. 33, s. 79, not only justifies but requires the release of the prisoner; and where he has passed upon the question of reasonable notice to the creditor, and the order states that the proceedings were had "after proof of due notice" to the creditor, the question of due notice cannot be raised in an action against the sherif for an escape. Brown v. Mason, 40 Vt. 157, and see Raymond v. Southerland, 3 Vt. 494.

17. When at the time a debtor is arrested upon a writ procured against his body by affidavit, the magistrate signing the writ is tempor arily absent from the county, and the debtor 22. by creditor on execution. As a notifies the officer that he wishes to be taken general rule, if the creditor discharge his debtor before the magistrate for an examination, we from arrest on execution, it is equivalent to a think the officer ought not, and has no legal discharge from imprisonment, and virtually right to commit him forthwith to jail, so that discharges the debt; but if so discharged by he can have no opportunity to go before the request of the debtor, or by mutual assent, it justice and have an examination; that it is the does not so operate. Foster v. Collamer, 10 duty of the officer to detain the debtor in custody Vt. 466. 20 Vt. 377. for a reasonable time, at least, to afford oppor- 23. Action for wrongful arrest. Trespass tunity for such examination, and that if he did for false imprisonment does not lie for an imnot, in this case, but committed him, the im- prisonment upon an alias execution, because of prisonment would be unlawful. But during the an arrest upon a former one and a discharge period of such delay, the officer may place the from custody by the creditor. Nason v. Sewdebtor in any safe and secure place for safe- all, Brayt. 119.

keeping that is reasonable and proper, and may 24. An action does not lie against the party

5. Dictum. An oral agreement assigning a chose in action requires a symbolical delivery. Whittle v. Skinner, 23 Vt. 531. Held contra tn Noyes v. Brown.

procuring an arrest and imprisonment upon an is essential to the assignment. Noyes v. Brown, execution issued upon a judgment not void, but 33 Vt. 431. Hutchins v. Watts, 35 Vt. 360. voidable merely. Kimball v. Newport, 47 Vt. 38. Spafford v. Page, 15 Vt. 490. 25. Where several, by combination and conspiracy, enticed a citizen of this State to go into another State that he might be there arrested on civil process, and he was so arrested;-Held, they were liable to him in an action on the case, although the debt for which he was so arrested was justly due. Phelps v. Goddard, 1 Tyl. 60. Promise not to arrest;-see Steele v. Bates, 2 Aik. 338.

ASSIGNMENT.

I. ORDINARY ASSIGNMENTS.

6. Subject of assignment. A person in the actual employment of another and receiving wages under a subsisting engagement, may make a valid assignment of his future earnings for the security and payment of either present or future indebtedness--although such engagement is not for any set time and either party may terminate it at pleasure. Thayer v. Kelley, 28 Vt. 19.

7. An unliquidated balance of account is assignable, and may be held by the assignee,

II. ASSIGNMENTS FOR BENEFIT OF CREDITORS. after notice to the debtor, against a trustee pro

1. At common law.

2. Under statutes.

I. ORDINARY ASSIGNMENTS.

1. Mode of assigning. If a draft, or order, is drawn on a debtor for funds of the drawer in his hands. in favor of a third person for good consideration, this operates as an equitable assignment which the assignor will not be allowed to defeat, although the drawee, having notice, neither pays nor accepts the order. Blin v. Pierce, 20 Vt. 25.

cess. (Dictum contra of Redfield, J., in Whittle v. Skinner, 23 Vt. 531, denied). Trescott v. Potter, 40 Vt. 271.

"Due

8. A written instrument, as follows: Harvey Groot $295, in part payment for a piano forte, said piano to be selected by Mr. Groot," is assignable, and the assignee or his agent takes the assignor's right of selection. Groot v. Story, 41 Vt. 533.

9. Protection of assignee. A note not negotiable is assignable in equity, so that, after notice, the maker can pay to the assignee only, and cannot be held as trustee of the payee. Newell v. Adams, 1 D. Chip. 346.

2. A promissory note, given and made payable to A, or bearer, was delivered by A to B, 10. The equitable interest of the assignee of with an authority "to use the avails of it for a chose in action will be protected at law; and the support and comfort of B, as she might in an action by the assignee, brought in the name need, or find occasion." Held, that this did not of the assignor, the debtor can set up no defense create an agency for the benefit of A, nor con- which accrued after notice to him of the asfer a mere power of attorney which was revoked signment,-as, payment, release, set-off, &c. by the death of A, but was an assignment, au- Ib. Strong v. Strong, 2 Aik. 373. Lampson thorizing B to demand payment, and the maker v. Fletcher, 1 Vt. 168. Haven v. Hobbs, Ib. of the note to pay to B, after the death of A; 238. Weeks v. Hunt, 6 Vt. 15. Cummings v. and, the maker having so paid, held, that he Fullam, 13 Vt. 434. Day v. Abbott, 15 Vt. was not liable to the executor of A. Lamb v. 632. Campbell v. Day, 16 Vt. 558. Stiles v. Matthes, 41 Vt. 42.

Farrar, 18 Vt. 444. Blake v. Buchanan, 22
Vt. 548. Upton v. Moore, 44 Vt. 552.

3. A lease of lands, sheep, &c., from A to B, with conditions of purchase, had indorsed 11. To avoid the effect of a release, pleaded thereon the words, Assigned the within in- or proved, it is not sufficient to reply or prove strument to C," signed by A, and it appeared that the suit is brought for the benefit of anthat C had thereafter received the rents due other than the plaintiff of record, and that the upon the lease. Held, that these facts alone defendant knew this before the release was did not prove such a transfer to C of all inter-given. To avoid the effect of the release, there est in the lease, as to defeat an action by A must have been an assignment of the claim. to recover for a conversion of the property Beech v. Canaan, 14 Vt. 485. Weeks v. Stevens, specified in it. Bradley v Arnold, 16 Vt. 382. 7 Vt. 72.

4. Oral assignment. An assignment of a

12. C was sued upon a contract, and dechose in action by words without writing oper- fended upon the ground that he was agent of M. ates as an equitable transfer of it, and, when He employed the plaintiffs as his attorneys, and followed by notice thereof from the assignee to was cast in the suit, on the ground that he did the debtor, will be protected and enforced by not disclose his agency when he made the concourts of law against a subsequent attachment tract. He then brought suit against M, to reby trustee process. No symbolical delivery cover what he had been compelled to pay and

his expenses, and, pending the suit, assigned juty an assignment of the judgment, though his entire claim, upon sufficient consideration, taken upon good consideration and without noto the defendant, and afterwards settled with tice of the pre-existing equity of the sheriff. the plaintiffs their bill for services in the first Downer v. S. Royalton Bank, 39 Vt. 25. suit by giving them his note therefor, telling 17. The rule that a bona fide purchase, for them that if such part of his claim against M value and without notice, is a good defense should be allowed in the suit, they should against prior equitable claims, applies only have the benefit of it, and have so much of the where the purchaser has acquired a legal title or judgment against M. A judgment was ob- a legal superiority in good faith and for value. tained against M in the suit, and the amount of But the purchaser of a chose in action, which the plaintiffs' claim against C was embraced in is assignable only in equity, takes it subject to it. The defendant collected the whole amount all equities attached to it, although without noof the judgment, and held the money. In an tice of them,-not only such as exist between action to recover the amount of the plaintiffs' the debtor and the assignor, but such as exist bill, as their money in the hands of the defend-in favor of a third person as against the assignant;-Held, that the liability of C to the plain- or. As between mere equities, priority in time tiffs, equally as if paid, passed by his assign- gives priority of right. Wilson, J. Ib. ment to the defendant, as part of his claim 18. An assignment of a demand not negoagainst M, and that the giving of the note gave tiable, since it does not transfer the legal right him no additional right against M; that C of action, does not preclude the defendant from gained nothing and the plaintiffs lost nothing offsetting mutual demands against the plaintiff by that arrangement; that the equitable title of record, which were mature and actionable to the whole claim, which became vested in previous to the assignment. Walker v. Sarthe defendant by the assignment, could not be geant, 14 Vt. 247. divested by any subsequent agreement between 19. The defendant was indebted to the Cand the plaintiffs; that the plaintiffs had no plaintiff on book account, and was, at the same lien upon the judgment, and could not recover. time, surety of the plaintiff for a larger sum. Ormsby v. Fifield, 38 Vt. 143. The plaintiff assigned his account, of which the 13. Where assigned as collateral secur- defendant was notified, and the defendant afterity. The equitable interest of the assignee of wards paid the debt for which he was surety. a note not negotiable, which is assigned as col- In an action of book account by the assignee in lateral security merely for a debt owing, ex- the name of the plaintiff ;-Held, that the sum tends only to the amount of the debt, and does so paid should be allowed to the defendent, not cover costs accrued in a suit to recover the notwithstanding the assignment, the defendant debt. As to the excess above such debt, the having an earlier equity than the assignee, and maker of the note may avail himself of a re- dating from his undertaking of suretyship. lease by the payee, though executed after the Barney v. Grover, 28 Vt. 391. assignment. Blake v. Buchanan, 22 Vt. 548. 14. The assignee of a promissory note for collateral security is entitled to recover the full amount of the maker, and to hold the excess, if any, above the claim secured in trust for the assignor. Sawyer v. Cutting, 23 Vt. 486. See Bank of Rutland v. Woodruff, 34 Vt. 89.

15. Assignee takes subject to equities. The assignee of a chose in action takes it subject to all the equity, existing at the time, in the original obligor or debtor. Foot v. Ketchum, 15 Vt. 258.

20. A party taking a railroad mortgage bond pendente lite, or after a foreclosure, as collateral security for the debt of the assignor, takes it subject to such equities as existed against it in the hands of the assignor, and with no greater rights under it. Knapp v. Sturgis, 36 Vt. 721.

21. Notice of assignment. The debtor will be protected as to all bona fide defensesas payment to the assignor, &c.,- arising before he had knowledge of the assignment. Campbell v. Day, 16 Vt. 558.

22. To perfect an assignment of a chose in action as against bona fide creditors of the assignor, notice of the assignment must be given to the debtor before attachment; and this is so, whether it be an assignment of a single chose in action, or a general assignment for the benefit of creditors. Notice comes in lieu of possession taken, as in case of chattels. Ward v. Morrison, 25 Vt. 593. Barney v. Douglass, 19 Vt. 98.

16. Where a deputy sheriff recovered judg ment against a bank for money deposited, which he had collected on an execution, and the sheriff had been obliged to pay the creditor for the laches of the deputy in failing to pay over the money so collected;-Held, that the equitable title to the money deposited and the judgment was in the creditor, until he was paid by the sheriff, and that on such payment the sheriff became entitled to be subrogated to the rights of the creditor in the judgment; and 23. Until notice of the assignment of a that this equity would prevail over the equita- chose in action has been given, the same evible rights of one who had taken from the dep-dence that would be admissible between the