VII. EVIDENCE; PRESUMPTION. I. II. 77. Promissory note. A promissory note, either of the debtor or of a third person, given in settlement of an account or for a previous debt, is, by Vermont law, prima facie payment, so that a suit cannot be maintained upon the III. original indebtedness, whether the note be paid or not. See BILLS AND NOTES, III. 78. Release to witness. A discharge executed by an administrator to a witness of a collateral interest does not necessarily imply payment, as he may be so discharged without payment. Huntington v. Wilder, 6 Vt 334. IV. V. I. RULES OF GENERAL APPLICATION. 79. Payment to third person. Where it is necessary in a trial to show a payment to some third person, not a party or privy in the 1. English language. The mark commonly suit, evidence, which would be good against used to denote dollars ($), is not part of the that party to establish such payment, is admis- English language, within the meaning of the sible; as, the written receipt of such person. statute which requires pleadings, etc., to be in Gilson v. Gilson, 16 Vt. 464. So, a verbal the English language. Clark v. Stoughton, 18 admission of payment. Reed v. Rice, 25 Vt. Vt. 50. 171. 2. So, the common signs for degrees and 80. Habit of party. Evidence that the minutes of courses in surveying (°') are indefendant was prompt and punctual in the pay-sufficient in an indictment against a town for ment of his debts, was held not admissible in not making a highway, surveyed and laid out by aid of the defense of payment. Strong v. such designation of termini and courses. State Slicer, 35 Vt. 40. v. Jericho, 40 Vt. 121. 81. Pecuniary circumstances. As tend- 3. The term, "Legislature." The term, ing to disprove the plaintiff's claim, which had legislature, instead of general assembly, is well run for an unusual and unreasonable time, but enough in pleading. State Treasurer v. Weeks, short of the statute of limitations;-Held, that 4 Vt. 215. evidence was admissible that the plaintiff's 4. Sense plain. The omission of a nompecuniary condition was such as to make it inative case in a pleading does not vitiate, especially inconvenient and burdensome for where the sense is plain. Williams v. Wilison, him to go unpaid, and that the defendant had 1 Vt. 266. upon. Ib. all along possessed the means of paying if called 5. Statutes of other States. The public statutes of another State are treated here as 82. Presumption. Presumption of pay- private statutes, as to the necessity of pleading ment of a bond is a legal inference after the them. Herring v. Selding, 2 Aik. 12. Peck v. lapse of twenty years, unless satisfactorily Hibbard, 26 Vt. 698. rebutted. The circumstances admissible to. 6. Videlicet. The averments of a plea rebut such presumption must be such as pre- must be made in direct terms, and not leave vented the recovering of a judgment. The the main fact as matter of inference-as, by poverty and imprisonment of the plaintiff, and stating a date with a continuando under a of the defendant, and that the plaintiff sued out videlicet. Britton v. Bishop, 11 Vt. 70. a writ but did not deliver it for service, are not sufficient. Rogers v. Judd, 5 Vt. 236. 7. A seeming repugnancy created by the stating of dates, in stating the order of events 83. Where notes signed by several joint in the performance of a contract, when such principals had been taken up, and were found dates are stated under a videlicet, is not material, in the possession of one of them ;-Held, that where each event is alleged in conformity to such posssesion alone did not furnish a pre- the contract, and within the times limited sumption of payment by him. Mills v. Hyde, therein. Stevens v. Chamberlin, 1 Vt 25. 19 Vt. 59. 8. Where a videlicet is followed by that 84. Execution-Injunction. In an action which is material and necessary to be alleged, of debt on judgment, the presumption of pay- it is considered as a direct and positive affirma. ment arising from the non-production of an tion or averment which is traversable, unless execution issued upon it was held to be effect- contrary to the preceding matter. It must be ually rebutted by the fact, that the defendant, proved, when material, as much as if it had after the expiration of such execution, had been averred without a videlicet. A videlicet obtained an injunction against the collection of never renders that immaterial which would the judgment. Bradley v. Briggs. 22 Vt. 95. otherwise be material. [Applied to a material date of a material fact laid under a videlicet.]| 18. Oyer. The defendant is not entitled to Ladue v. Ladue, 16 Vt. 189. oyer where there is no profert. Where profert 9. Directness Argumentativeness. is unnecessarily made, the defendant is not on Whatever facts are necessary to make the act that account entitled to oyer, but must plead charged unlawful, must appear by averments, without it; but if oyer is asked for and is in opposition to argument and inference; given, he may make use of it. Story v. Kimcharacterizing it as contrary to law, or con- ball, 6 Vt. 541. cluding contra formam statuti, does not help the matter. Adams v. Nichols, 1 Aik. 316. 19. Matter of record. In pleading matters of record, the record must be vouched to 10. An averment in pleading, that notes verify them. Holden v. Scanlin, 30 Vt. 177. which were executed and made payable to a 20. Scire facias against bail was held ill on married woman, during coverture, "became special demurrer, for want of a prout patet and were the sole property" of the husband, is per recordum. Wright v. Brownell, 2 Vt. 117. not a sufficient averment that the husband 21. Contradicting record. A pleading is reduced them to his actual possession. It bad, which contradicts a record by matter in is rather a legal conclusion of the pleader. pais. Lapham v. Briggs, 27 Vt. 26. Stearns v. Stearns, 30 Vt. 213. 22. Departure. Instance of a departure 11. An averment in a plea that the plain- in pleading. Houghton v. Jewett, 2 Tyl. 183. tiff was; by the listers, for his real estate, set in Joslyn v. Taylor, 33 Vt. 470. the grand list for a sum named, is a sufficiently direct and positive averment that he had a repugnancy; no denial of facts stated in the grand list to that amount for real estate. plea, nor avoidance, &c. Watson v. Joslyn, Adams v. Hyde, 27 Vt. 221. 23. Instance of a departure in a replication; 29 Vt 455. 12. An averment in pleading that "John J. 24. Duplicity. If the facts alleged in a Crandall became bail by indorsing his the said plea are ever so multifarious, yet if they all go Crandall's said name of J. J. Crandall on said to make up one entire result and require but writ, as bail," &c., was held to amount to an one answer, there is no duplicity. Torrey v. averment that he indorsed the writ by the name Field, 10 Vt. 353, 412. Waddams v. Burnof J. J. Crandall, and that this name is identi- ham, 1 Tyl. 233. cal with John J. Crandall-and to be sufficient. 25. Several matters in a plea do not render Blood v. Crandall, 28 Vt. 396. the plea double, if they are constituent parts fact. 13. An averment that a judgment was of the same entire defense, or are alleged as rendered at a term of court commencing March inducement to, or as a consequence of, another 23, that an execution issued dated March 29, Mott v. Hazen, 27 Vt. 208. and was committed to an officer April 26th In order to determine whether a plea is following, was held not a sufficient averment double, reference must be had not only to the that it was so committed to the officer within matter, but also to the general frame and 30 days from the time of rendering final judg- structure, of the plea. Where two defenses are ment. McK. Ormsby v. Morris, 28 Vt. 711. combined in one plea, it is not necessary that 14. Continuous fact. Where a fact, con- each should be a sufficient defense in order to tinuous in its nature, is averred in pleading as render the plea double. The plea in this case existing, it is to be taken as continuing unless was held bad for duplicity. Vaughan v. the contrary be averred, and that should come Everts, 40 Vt. 526. from the opposite party. Except in pleas of 27. In trespass de bonis, the defendant abatement, it is not necessary that the defend- pleaded in bar the organization and existence ant should anticipate in his plea matter appro- of a school district, the warning and holding priate for a replication, and negate it. Kins- of a school meeting, the voting of a tax, the man v. Page, 22 Vt. 628. Day v. Abbott, 15 plaintiff's liability to be taxed, the assessment Vt. 632. of the tax by the prudential committee, the 15. Condition. Where a condition is to do issuing and delivery of the tax warrant to the a thing when thereto requested, the request is defendant, who was collector, and his proceeda part of the condition-a traversable fact--and ings under it in taking the property, &c. : must be averred with all necessary circum- Replication, that said supposed tax "was not stances of time and place. Jones v. Cooper, legally and duly assessed by the then prudential 2 Aik. 54. committee of said school district upon the lists 16. Profert. Where a deed is the founda- of said district." Held, upon special demurrer, tion of the action, the declaration must make that the replication presented but a single profert of it, though professed to be set out in issue, viz: the actual assessment by the pruhaec verba. Austin v. Dills, 1 Tyl. 308. dential committee, and whether, from the vote of the district and the grand list, they did truly Way ascertain and fix the amount to be paid by each person liable to be taxed-all the proceedings 17. The omission of a profert, when necessary, is only cause for special demurrer. v. Swift, 12 Vt. 390. preliminary to such assessment being admitted by the pleadings. Moss v. Hinds, 28 Vt. 279. S. C., 29 Vt. 188. II. THE DECLARATION. 1. In General. 28. Is part of the writ. By G. S. c. 33, s. 9., the writ and declaration are blended in one instrument, and the declaration is thereby made a part of the writ. Hence, the writ may be referred to, to aid a defective averment in the declaration proper; as, that one of the plaintiffs is wife of the other. Church v. Westminster, 45 Vt. 380. 29. Several counts. Every special count must contain in itself all the averments necessary to show a cause of action. Farnsworth v. Nason, Brayt. 192. 35. In the case of mutual covenants, where the declaration avers that the defendant has disabled himself from performance, the plaintiff need not aver a tender of performance on his part, but must aver that he was ready and willing to perform. Stow v. Stevens, 7 Vt. 27. Joslyn v. Taylor, 33 Vt. 470. 36. Matter of evidence. C. S. c. 20, s. 12, provided that a contract with a schoolteacher for teaching should be null and void if he should fail to obtain a certificate of qualification before the commencement of the school. In an action by a teacher upon such contract ;— Held, that the declaration need not aver that he had obtained such certificate; that this is matter of evidence pertaining to the remedy. Doyan v. School Dist. Montgomery 35 Vt. 520; and see Kent v. Lincoln, 32 Vt. 591. 37. Consideration. A contract was set out in a plea as made "upon a good and valu30. Where a declaration contains several able consideration." Held insufficient on gencounts, each for a separate cause of action, each eral demurrer. The consideration should be count should be complete in itself and not set out, that the court may see that it is a good require aid by reference to the others. Where and valuable one-that it is legally sufficient. only such general reference is made, the court A demurrer does not admit this. It admits cannot be required to look into the pleadings such facts only as are well pleaded. Marshall and assort the parts, and appropriate them in v. Aiken, 25 Vt. 327. (See Paddock v. Jones, aid of the needy counts. Holton v. Muzzy, 30 40 Vt. 474.) Vt. 365. 2. How aided by plea, or verdict. 38. Aided by plea. A plea may, by a 31. Declaration on record. In declaring upon a matter of record of a justice court, it is not necessary to set forth the proceedings at large, as by a transcript, but only to aver the direct admission of facts omitted or obscurely facts with a prout patet per recordum. Chit-expressed in the declaration, aid the declaratenden v. Catlin, 2 D. Chip. 22. tion; it may, by intendment, aid that which is 32. must be declared on according to its legal effect, and not by setting out its words. It cannot be referred to, and so be made a part of the declaration, as is done in chancery. Estes v. Whipple, 12 Vt. 373. -on contract. A written contract defectively set forth; but will not, by intendment, aid that which is the very gist and point of the action. Ralston v. Strong, 1 D. Chip. 287. Post 144. 39. Aided by verdict. A motion in arrest for the insufficiency of the declaration will not 33. To declare upon a contract in the words prevail, where it contains the substance of a of it, is sometimes sufficient, and sometimes good declaration, and all the facts necessary to not. That depends upon the degree of precis- a recovery, though imperfectly stated. Battles ion with which the contract is drawn. The v. Braintree, 14 Vt. 348. Closson v. Staples, declaration should be certain to a certain intent, 42 Vt. 225. and when the contract is not so, but is vague 40. Defects merely formal are aided by verand uncertain, the pleader must intelligently dict; and many defects which would be reached express that view of the contract upon which by general demurrer are also cured by verdict. the claim is founded; otherwise, the declara- The omission of that which must necessarily be tion will be bad on demurrer, and, many times, on motion in arrest. But if described in the words of the contract, there cannot be said to be a variance. Royalton v. R. & W. Turnpike Co., 14 Vt. 311. presumed to have been proved on trial, is not cause of arrest; but nothing is presumed to have been proved, which is not expressly stated in the declaration, or necessarily implied from those facts which are stated. Vadakin v. 34. Declaration upon a note, or written con- Soper, 1 Aik. 287. Keyes v. Throop, 2 Aik. 276. tract, for the payment of a certain sum, at a 41. The language of a declaration is to be certain time and place, in certain due-bills-favorably construed to sustain a verdict; as, omitting to aver that the plaintiff was present where an equivocal term is used. Manwell v. then and there ready to receive them ;— Manwell, 14 Vt. 14. Held good-certainly, after verdict. Carpenter v. Coit, 1 D. Chip. 88. 42. A declaration, ill on demurrer, may be good after verdict on motion in arrest. After verdict, every reasonable presumption should be of the defendant." Durrill v. Lawrence, 10 made in favor of the sufficiency of pleadings. Vt. 517. A title defectively stated is cured by verdict, 50. A new or an amended declaration, not but not a defective title. Brown v. Hitchcock, concluding with an ad damnum, but where the 28 Vt. 452. Lincoln v. Blanchard, 17 Vt. 464. ad damnum was set forth in the original decla43. Judgment will not be arrested after ver- ration, was held sufficient on motion in arrest. dict, for lack of an essential averment in the It must be considered as referring to the original declaration which is contained by implication declaration. Parlin v. Bundy, 18 Vt. 582. in the averments used, or which may be con- 51. Whatever may be the rule in regard to sidered to have been proved as a part of what supplying what is necessary in one count by is alleged. Morey v. Homan, 10 Vt. 565;-reference to others, where the objection to such which is implied or must have appeared in reference is taken by special demurrer, such proving what is actually alleged. Needham v. objection cannot prevail on motion in arrest. McAuley, 13 Vt. 68. Lincoln v. Blanchard. Curtis v. Belknap, 21 Vt. 433. Brown v. Hitchcock. Curtis v. Burdick, 48 Vt. 166. 52. In a declaration to recover for work done in building a railroad, upon a contract in 44. In an action upon an award embracing which it was agreed that the payments should the arbitrator's fees, the court refused to arrest be made from time to time according to estijudgment upon a verdict for the plaintiff includ- mates of the engineers of the amount of work ing such fees, although the declaration did not so done, it was held, on motion in arrest, that aver that the plaintiff had paid them. He an omission to aver that such estimates had could not have recovered them without such been made was cured by an averment that it proof. Blanchard v. Murray, 15 Vt. 548. was the duty of the defendant to have such 45. Under G. S. c. 52, s. 17, requiring an estimates made, and that it was through his action, for an injury causing death, to be brought fault that they were not made. Camp v. Barker, by the personal representative of the deceased 21 Vt. 469. within two years from the decease, the declara- 53. In declaring upon a promise, the want tion averred the date of the decease, and this of an averment of consideration, or the averment date was, in fact, within two years from the of an insufficient consideration, is not cured by commencement of the suit; but it did not aver verdict. Vadakin v. Soper, 1 Aik. 287. (otherwise) that the decease occurred within 54. Counts in case for a false warranty cansuch two years. On motion in arrest ;- Held, not be joined with a count in assumpsit upon that the declaration was sufficient; and the fact an express warranty. After a general verdict being one which was necessary to be proved in in such case for the plaintiff, judgment was order to a recovery, it would, after verdict, be arrested on motion. Joy v. Hill, 36 Vt. 333. presumed to have been proved, even if the time 55. In a plea which should have concluded of the decease had not been alleged at all. Hill to the country, the conclusion was wholly v. New Haven, 37 Vt. 501. omitted. Held good after verdict. Stearns v. Stearns, 32 Vt. 678. 46. In case for fraudulent representations as to land sold, the declaration alleged that the 56. Good and bad counts. Where one plaintiff bargained with the defendants to buy count of a declaration is fatally defective, of them a certain piece of land; that said land although joined with other good counts, and was described in a deed from the defendants to the verdict is general, judgment will be arrested the plaintiff; and that the plaintiff purchased of Haselton v. Weare, 8 Vt. 480. Bloss v. the defendants the land described in said deed. Kittridge, 5 Vt. 28. Harding v. Cragin, 8 Vt. Held, on motion in arrest, that the word pur- 501. Walker v. Sargeant, 11 Vt. 327. Wood chased implied payment of a price, and that the v. Scott, 13 Vt. 47. Needham v. McAuley, Ib. presumption was that these several averments 68. Sylvester v. Downer, 18 Vt. 32. Barrett, of the declaration were proved on trial. Motion J., in Joy v. Hill, 36 Vt. 336. Dunham v. overruled. Curtis v. Burdick, 48 Vt. 166. Powers, 42 Vt. 1. 47. Defects in a declaration in the state- 57. The same doctrine applied to a declarament of value, kinds and enumeration of tion in set-off. Bloss v. Kittridge. Walker v. articles of property, &c., were held cured by Sargeant. verdict. Wetherbee v. Foster, 5 Vt. 136. Fuller v. Fuller, 4 Vt. 123. 48. The lack of averring a special when necessary, is cured by verdict. Arnold, 8 Vt. 252. demand, 58. The above rule criticised in Wood v. Scott, 13 Vt. 47. Whitcomb v. Wolcott, 21 Vt. 368. Camp v. Barker, Ib. 469. McDuffee v. Magoon, 26 Vt. 518; and apparently held, that where it appears that the evidence was appli49. A declaration in debt for goods sold and cable solely to the good counts, a general verdelivered was held good after verdict, where dict will be sustained; or that it would be there was no averment that the goods were so presumed that the verdict was upon the good sold, &c., "at the special instance and request counts only, the contrary not appearing. 59. Note. Now settled by stat. 1865, No. 69. The objection to a writ, that no minute 12, enacting that where the counts are for the of the true time of issuing it was entered upon same cause of action, a general verdict in such it, as required by G. S. c. 62, must be taken at case "shall be deemed as the finding of the jury the earliest opportunity;-as, on the return day on the good count or counts, unless it other- of a justice writ; or, at the first term in the wise appears," &c. 60. But unless for the same cause of action, the judgment in such case will be arrested; and so done in Dunham v. Powers, 42 Vt. 1. Kimmis v. Stiles, 44 Vt. 351. county court, under the rule applicable to 61. Where it appears by the whole record 70. Where a judgment against the defendthat the verdict was in no part founded upon ant, rendered by default by a justice in an a defective count, the judgment will not be action for a penalty, had been set aside on arrested on account of the defective count, petition to the county court, and the cause though the verdict be general. Montgomery v. there entered;-Held, in the absence of any Maynard, 33 Vt. 450. rule made as to dilatory defenses, that the court, at the first term, properly entertained a motion to dismiss the action for want of the required minute of the true day, &c., when the writ was signed-that being the defendant's first opportunity. School Dist. Granby v. Austin, 46 Vt. 90. III. PLEAS. 1. Dilatory pleas and motions to dismiss. 62. Title of plea. By our practice, the title to a plea is of very little importance. It 71. In an action on a probate bond, under is sufficient if it follows the docket entry, and G. S. c. 60, s. 2, an objection that the prosecuidentifies the suit. So held, as to a plea in tor's name was not indorsed on the writ, was abatement. Cleft v. Hosford, 12 Vt. 296. held waived by continuance and trial on the 63. Time of pleading-Waiver. Matter merits, or on demurrer. Probate Court v. Strong, in abatement, simply, must be pleaded at the 24 Vt. 146; and see 32 Vt. 775. earliest opportunity, or it is waived;-as, in a 72. A writ not signed by any proper justice suit, on the first day of appearance. authority, is not absolutely or incurably void, Martin v. Blodget, 1 Aik. 375. Stone v. Proc- but is confirmed and the defect waived, by the tor, 2 D. Chip. 108. appearance of the defendant and pleading to 64. Where a justice suit was postponed by the merits without objection to the process. agreement of parties to a future day, without The objection is in substance merely dilatory, an express reservation of the defendant's right and must be presented, if at all, at the first to insist upon dilatory matter;-Held, that such opportunity. Huntley v. Henry, 37 Vt. 165. right was thereby waived. Wheelock v. Sears, 19 Vt. 559. 73. After plea of not guilty, and the commencement of the trial of a liquor prosecution 65. So, where a suit by order of the county on appeal from a justice, the respondent filed a court was allowed to be entered later than the motion to dismiss, alleging that the justice acted time fixed by the rules of practice for such as attorney and counsel for the State upon the entry, and later than the day fixed by the rules trial before himself. Held, that the court profor filing dilatory pleas;-Held, that without a perly refused to entertain the motion; (1), reservation, in the order, of the right to file such because not founded upon any fact or matter of plea, the right was waived. Dow v. School record apparent upon the face of the proceedDist. Walden 46 Vt. 108. ings; (2), because not seasonably made. State v. Haynes, 35 Vt. 565. 66. A personal privilege must be seasonably asserted, or it is waived;-this applied to the place of trial. Forbes v. Davison, 11 Vt. 660. 67. Defect of trial venue in the writ is cured by appearance, and trial upon the merits. Stone v. Van Curler, 2 Vt. 115. 74. The appearance of a foreign corporation by counsel at the first term and suffering a general continuance at that and the next term, are a waiver of all dilatory pleas, and of all objections to the service of the writ. Stanton v. 68. In an action of book account, before a Proprietors of the Haverhill Bridge, 47 Vt. 172. justice, against the defendant and another, 75. Where a plea in abatement is filed out there was no service on the other nor excuse of time, as after the first term, such objection therefor. The defendant entered a general can be taken advantage of by demurrer. The appearance before the justice and went to trial plaintiff may either sign judgment, move to on the general issue. On appeal, the defendant have the plea set aside, or demur. Jennison v. pleaded in abatement the want of service on Hapgood, 2 Aik. 31. the other defendant. Held, that the plea was bad, as being out of time, and that the defect was waived. Pike v. Blake, 8 Vt. 400. 76. Semble, if the county court sustains a motion to dismiss, and the record shows that the motion was not seasonably filed, the |