not a record that can be declared upon as a record of recognizance. Brackett v. McLeran 23 Vt. 90.

27. A feme sole administratrix gave a recognizance for an appeal, in which the defendant joined as surety. Held, that her marriage 20. Liability of recognizor. The bail for before the appeal was entered in court did not an appeal from a justice judgment, where the affect the defendant's obligation upon the recogappellee finally recovers, is liable on his recognizance. Burnham v. Bass, 5 Vt. 463. nizance for all costs following the appeal, and 28. Where a suit is discontinued by the so much of the debt as is lost by the delay death of the defendant and the appointment of occasioned by the appeal. Hubbard v. Davis, commissioners, the recognizance taken on the 1 Aik. 296. defendant's appeal is discharged. Peake v. Keyes, 3 Vt. 317.

21. In an action on a recognizance for an appeal, the plaintiff is entitled to recover, as 29. Otherwise, where no commissioners are "intervening damages," the value of his chance appointed and the administrator enters to of collecting his debt which he has lost by the defend, in a case where the cause of action surappeal, and he is to be made as well off as if no vives. Mott v. Hazen, 27 Vt. 208. appeal had been taken. To estimate this, the 30. Where an appeal from a justice judgstate of the appellant's property at and from ment is carried up by neither party, the suit is the time of the appeal until final judgment, is discontinued, and no action lies on the recogto be considered. McGregor v. Balch, 17 Vt. nizance taken on the appeal. Love v. Estes, 6 562;-although such property was out of the Vt. 286. 35 Vt. 27. (By Stats. 1865 and 1866 State, and, by afterwards disposing of it, the an appeal only suspends the judgment.) appellant had qualified himself to take the poor debtor's oath. Richardson v. Hitchcock, 28 Vt. 757.

31. Action. In order to maintain an action upon a recognizance given for an appeal, it is not necessary that an execution should have 22. In an action against the surety in a been taken out upon the judgment rendered on recognizance for an appeal, to recover inter- the appeal. Page v. Johnson, 1 D. Chip. 338. vening damages;-Held, that the fact that the 20 Vt. 103.

principal had, at a previous date, given in 32. In an action on a recognizance of bail property to be set in his list at $600, tended to for an appeal, it is not necessary to aver that prove that he then had property to that the judgment against the original debtor, or amount; and that this act of the principal was the intervening damages, or costs, remain equally evidence against the surety. Ib. unsatisfied. If paid, that is matter of defense.

23. The recognizance to pay "intervening Way v. Swift, 12 Vt. 390. (Contra to Page v. damages" and costs occasioned by an appeal Johnson, 1 D. Chip. 338.) from a justice, in a case under Stat. of 1797 for 33. A judgment of forfeiture of a recogwrongfully holding over demised premises, does nizance is conclusive in a scire facias brought not embrace the rents and profits accruing dur- to enforce the recognizance. State v. Nichols, ing the pendency of the appeal. Drew v. 43 Vt. 91. Chamberlin, 19 Vt. 573.

34. Assessment by jury. After judgment

24. It is no bar to a scire facias upon a by default upon a recognizance, taken for an -recognizance given on an appeal, that the plain- appeal, the court denied the motion of the tiff has a remedy for the intervening damages plaintiff to have the sum due assessed by the and costs against the sheriff who attached the jury. Held erroneous. Benham v. Sage, 1 D. appellant's property on the original writ. Chip. 247. (G. S. c. 30, s. 63.)

Holmes v. Woodruff, 20 Vt. 97. 1 D. Chip.

338.

III. ON PETITION; REVIEW; ERROR.

25. But in such case, held, that the defendant could use in mitigation of the inter- 35. On petition. A recognizance taken by vening damages, the probable value of the a judge upon a petition to the county court to claim which the plaintiff had against the sheriff, set aside a justice's judgment, becomes a for having suffered the property of the prin- security in the principal action, if a new trial is cipal, attached by him upon the original writ, to granted; and becomes a record in the supreme be eloigned--the attachment being the prior court, if the suit is finally determined there. security. Holmes v. Woodruff. (G. S. c. 38, s. 9.) Shumway v. Sargeant, 27 Vt. 440.

26. Where, on an appeal from a justice, judgment was recovered in the county court by 36. On review. A recognizor for a review the appellee, and upon that judgment a second becomes absolutely liable for the costs occajudgment was recovered, and the debtor was sioned by the review to the extent of his recogcommitted to jail thereon, but the judgment nizance; and to charge him, no execution need was not satisfied-Held, that the bail for the be issued against the principal debtor, nor any appeal remained still liable on his recognizance. effort be made to collect the judgment of him. Hubbard v. Davis, 1 Aik. 296. Though property was attached, the result is the

RECORD.

same, since the remedies of the creditor, as well as the liabilities of the officer and of the recognizor, are distinct and independent. Held, that 1. Authority to make record. One who a receiptor, taking an assignment from the has been county clerk has no authority, after judgment creditor, might in the creditor's name the expiration of his office, to complete a record recover of the recognizor upon his recognizance. commenced by him while in office. Such Smith v. Ingraham, 22 Vt. 414. authority is annexed to and passes with the

37. The mere affirmance of a judgment office, being a trust of a public rather than of a reviewed is not a breach of the recognizance for personal character. Perrin v. Reed, 33 Vt. a review. The condition of the recognizance 62.

is not broken, unless intervening damages have 2. In general, it is the right of the clerk of been sustained, or additional costs recovered; a town or other municipal corporation while and in an action on the recognizance, such fact having the custody of the records, to make any must be averred in the declaration. Brown v. record according to the facts; and this, although Clark, 28 Vt. 690. S. C. 27 Vt. 576. he may have been out of office and restored 38. In scire facias upon a recognizance given again. But he cannot alter or amend a record for a review, where the reviewor was wholly upon the testimony of third persons, ordinarily, destitute of property at the time of the review, and ought not to do it upon his own recollecand so continued;-Held, that as no damage tion, unless in very obvious cases of omission had accrued from the loss of any part of the or error. Such amendments should ordinarily debt, the plaintiff could not recover the accrued be made by the original documents or minutes. interest as "intervening damages." Roberts v. Mott v. Reynolds, 27 Vt. 206. Warner, 17 Vt. 46.

3. If the clerk who made the record were out of office, or were a party to the suit, such amendment might be improper. Hadley v. Chamberlin, 11 Vt. 618. 27 Vt. 208. 4. Docket entries.

The docket entries in for the defendant, execution stayed,

39. Extra expense in procuring witnesses, and of employing counsel, and time and money necessarily expended in defense of a suit, are not "intervening damages," within the meaning of those words in a recognizance for a a cause showed a verdict review. Peasely v. Buckminster, 1 Tyl. 264. exceptions allowed and 40. Bail for a review was held not discharged without showing, in express terms, judgment by the death of the reviewor, where the suit on the verdict. Held, that such entries showed proceeded to judgment against his administra- the practice of the court to have been, as in tor. Hoy v. Herrington, Brayt. 36. some other county courts, not to make any 41. The county court has the power to formal entry of judgment on verdicts, but to change the bail taken for a review, and the sub-treat all verdicts, left to stand, as having judgstituted bail will be held for the cost and inter-ment rendered on them, and to have the records vening damages accruing from the time the made up accordingly; and, in this view, held, review was granted; but the exercise of this that such entries showed a verdict and judg power is discretionary, and not the subject of ment thereon for the defendant. Armstrong exception. Colgate v. Hill, 20 Vt. 56. v. Colby, 47 Vt. 359.

42. Appeal to supreme court. A declaration upon a recognizance entered into in the supreme court, in a cause where the court had appellate jurisdiction only, was held good on demurrer, though it was not averred that the cause came to that court by appeal. Treasurer v. French, Brayt. 140.

5. Devise of lands. The constitution of 1777 and the statute of 1779, requiring “all deeds and conveyances of lands" to be recorded, were held not to embrace a devise of lands, but only conveyances inter vivos. Smith v. Perry, 26 Vt. 279.

6. What is a recording. The indorsement by a town clerk upon a paper left for record: "Received into record"-is not a recording of That is to be done by transcribing into a book kept for that purpose. Pawlet v. Sandgate, 17 Vt. 619; and see Sawyer v. Adams, 8 Vt. 175, 184.

43. In error. Bail on a writ of error, recognized that the plaintiff in error shall prosecute his writ to effect "and answer all dam- the paper. ages and costs if he shall fail," &c., is liable the paper only for the actual damages occasioned by the delay, and the costs. Brace v. Squire, 2 D. Chip.

49.

44. The condition of a recognizance for the As to records of different kinds and in parprosecution of a writ of error is satisfied by a ticular cases, see appropriate titles-as DEed; reversal of the judgment on error, although the MORTGAGE; EXECUTION; TAXES, &c; PROdefendant in error may again recover in the BATE COURT; JUSTICE PEACE; TOWNS; original action, and suffer damage by the delay. SCHOOLS, &c. Smith v. Keyes, 2 Aik. 77.

See PROCESS I., 2.

As to amendment of records, see AMENDMENT; Records as evidence, see EVIDENCE; Pleading a record, see PLEADING,

REFERENCE.

but may try the case upon its merits and award upon the subject matter embraced in the sub

1. UNDER RULE FROM THE COUNTY COURT.mission; and judgment will be entered upon II. UNDER RULE FROM A JUSTICE III. UNDER RULE FROM PROBATE COURT.

the report whenever, without changing the nature of the action, the declaration or pleadings could be so amended as to accommodate

1. UNDER RULE FROM THE COUNTY COURT. them to the facts found by the referee. Cook v. Carpenter, 34 Vt. 121. Eddy v. Sprague, 10 Vt. 216. Clifford v. Richardson, 18 Vt. 620. Maxfield v. Scott, 17 Vt. 634. Davis v. Campbell, 23 Vt. 236. Briggs v. Oaks, 26 Vt. 138. Briggs v. Bennett, 26 Vt. 146. Sumner v. Brown, 34 Vt. 194. Ladd v. Lord, 36 Vt. 194.

1. Likeness to arbitration. A reference under a rule of court stands upon the same general principle as do all arbitrations, the mere agreement of the parties; and the power of the arbitrator extends to just what the parties have agreed to submit, and no more: Windham Prov. Inst. v. Sprague, 43 Vt. 502. and if he undertakes to try and award of other matters not submitted, the award is invalid. Poland, C. J., in Cook v. Carpenter, 34 Vt. 126.

Hicks v. Cottrill, 25 Vt. 80. Spaulding v. Warren, 25 Vt. 316. Barker v. T. & R. R. Co. 27 Vt. 766.

7. It seems, that where a case is referred, 2. The court has no power to enlarge a rule although with the stipulation that it is "to be of reference without consent of the parties, each decided according to law," it will not be fatal enlargement being in effect a new reference. to the plaintiff's right to recover upon a report Rice v. Clark, 8 Vt. 104. Baxter v. Thompson, in his favor, that the form of action was mis25 Vt. 505. Lazell v. Houghton, 32 Vt. 579. |conceived, since the power of amendment 3. A report of referees was set aside because extends even to changing the form of action; they refused evidence of an agreement that they as, from trespass to case. Briggs v. Oaks. should exercise chancery powers. Bellows v. Briggs v. Bennett. Ingham, 2 Vt. 575.

8. But where no such amendment would 4. Where a submission is to three or more be allowed, as where it would change the form referees, by rule of court, and the rule is silent of action, or introduce a new cause of action, as to the number that must agree, all must or different from the one declared upon or concur in the report; but where the rule sought to be recovered for, then such facts, authorizes all or a majority to make report, only not embraced in the declaration, are outside the a majority need agree in the report; yet, as the submission and the authority of the referee. submission is to all of them, all must be pres-Cook v. Carpenter, 34 Vt. 121. Sumner v. ent and hear the parties. But if the parties Brown. Ib. 194. mutually agree to dispense with the attendance

9. The insufficiency of the declaration is no of one of the referees, and, in pursuance objection to the acceptance of a report of of such agreement, they appear and submit to a referees. Jewell v. Catlin, Brayt. 215. hearing before the others, the absence of such referee is no objection to the report of the others. Howard v. Conro, 2 Vt. 492.

10. Where a cause was referred by rule of court and the defendant died before hearing ;Held, that his administrator had the right to take out the rule and proceed with the reference. Williams v. Cook, Brayt. 112.

5. Scope and effect-Waiver. All questions affecting the mere form of the suit, and all questions of variance merely between the 11. Where the defendants were sued as a declaration and proof, are waived by a refer- corporation, and appeared by the name by ence; and every matter which could properly which they were sued, and put in no plea of have been introduced by way of amendment to misnomer, nor denied their corporate existence, the declaration will be considered as added, or and the cause was referred;-Held, that such its absence waived or cured, by the reference, objections could not be taken before the referees. provided it sufficiently appears that the matter Stone v. Berkshire Cong. Socy., 14 Vt. 86. set up as the ground of recovery before the 12. In an action brought originally in the referee is the same real cause of action for county court and referred by rule of court to a which the plaintiff sued. Waterman v. Conn. referee mutually chosen by the parties, it can& Pass. R. R. Co., 30 Vt. 610. Laport v. not be objected before the referee, or on his Bacon, 48 Vt. 176. report, that the action was not, by reason of the 6. Where a pending action is referred by amount claimed, within the original jurisdicagreement of parties under a rule of court, tion of the court. Such objection is waived though the rule be, that the case be heard and by the reference. Maxfield v. Scott, 17 Vt. 634. decided according to law, it is the cause of 26 Vt. 144. action which is referred, and not the particular 13. So, on an appeal from a justice, it canform of the declaration or any particular issues not be objected, after such reference, that the formed, and the referee is not bound thereby, justice had not jurisdiction by reason of the

amount in controversy, and so the county court fence that a referee was required to decide the no appellate jurisdiction. Reed v. Stockwell, 34 case upon strictly legal grounds, or, from his Vt. 206. report, that he intended so to decide, his report will not be set aside though he may have mistaken the law. Steen v. Wardsworth, 17 Vt.

14. Limitations. The statute of limitations may be used in defence before a referee, without having been pleaded in bar. Carter v. Howard, 39 Vt. 106.

297.

24. Under a general reference, no question 15. Award. A failure to plead in bar an can be raised in regard to any question of law award which operates to discontinue a suit, and decided by the referee, unless it appears from consenting to a reference of the suit, are not a the report that he intended to decide according waiver of the defense before the referee. Bab- to the rules of law. cock v. School Dist. Guilford, 35 Vt. 250.

16. Set-off. Demands in set-off, not before pleaded in set-off, cannot be urged before a referee. Fulton v. Wiley, 32 Vt. 762.

17. The objection that a plea in set-off was not filed in season, was held waived by a reference, and could not be taken before the referee. Swift v. Harriman, 30 Vt. 607.

571.

Cutting v. Stone, 23 Vt.

25. In order for the court to revise the decision of a referee in matter of law, he must either refer that question to the determination of the court in such a manner as to make the result of his finding depend upon the determination of such questions of law as arise upon the report, or else it must appear to the court that the 18. How far referees are bound by legal referee, intending to follow the law, has misrules of decision. If auditors err in point taken it, whereby he is brought to a different of law, it is fatal; but as to referees and their result from that which he would have reached reports, the rules are those which obtain in had he known what the law was; and this chancery upon awards of arbitrators. Sawyer mistake must be obvious, or be clearly made to v. Doane, 1 Aik. 138. 27 Vt. 633. appear to the court. White v. White, 21 Vt.

19. Referees, being judges of the parties' 250. choice, are not obliged to decide upon the 26. Where a referee does not state in his strict principles of law, but may disregard report that he intended to decide according to them altogether, and adopt certain principles law, and does not refer the question of law to of equity or justice to govern their decision. the court, his decision will not be reversed But if they attempt to decide according to law, unless it is apparent that he has violated some and mistake the law in their decision, and so principle of right whereby injustice is done. produce a result different from what would Park v. Pratt, 38 Vt. 545; and it may be have been produced if they had correctly taken, unless it appears to the contrary, that he decided the law, their report may be set aside, decided the case, as a referee may, entirely So, a mistake made by them on the principles upon equitable grounds. Smith v. Sprague, 40 they adopt for their decision-as, mistaking a Vt. 43.

fact, or an error in computing or stating an 27. Where a referee states in his report that account may be a reason for setting aside their he intended to decide according to law and to report. Hazeltine v. Smith, 3 Vt. 535. Johns have his decision revised by the court, this can v. Stevens, 3 Vt. 308. 8 Vt. 83. 21 Vt. 255. only have reference to matters of law and not

20. The referee, as the report stated, con- of fact; and statements of fact in the report, or sidered that the plaintiff in a legal point of inferences of fact from the facts before stated, view" was not entitled to recover. From the if what is so previously stated warrants such facts stated it appeared that his decision was inference and finding as a matter of fact, must contrary to law, and, it thus appearing that he be so treated. If the referee could so legally meant to follow the law, the report was set find, his finding is not erroneous. Riley v. aside. Noyes, 44 Vt. 455.

Johns v. Stevens.

21. Though referees, intending to follow 28. The court refused to set aside the report the law, make a mistake on a doubtful point, of referees where they received incompetent yet this is not always a reason for setting testimony, although they reported that they aside their report, unless the mistake evidently intended to decide according to law, where such led them to a wrong conclusion on the whole testimony had no tendency to mislead them, Bliss v. Rollins, 6 Vt. 529. 8 Vt. 83. and it did not appear that they were misled thereby. Learned v. Bellows, 8 Vt. 79.

case.

22. Referees are not bound to proceed by legal principles strictly; and where they pro29. -as to items of account. A referee ceed upon equitable principles, and are not is not required to state in his report the items misled in the application of them, their report allowed, and those disallowed, unless requested I will not be set aside. Downer v. Downer, 11 so to do. McDaniels v. McDaniels, 40 Vt. 340. Vt. 395. 30. -as to facts. In case of a reference, 23. What the report must show-as to the county court can only pronounce the law. Unless it appear from the rule of refer-law upon the facts found by the referee. It

cannot add to the facts so found from evidence pose of having the referees do what they reported. Fuller v. Adams, 44 Vt. 543. intended to do. This gives them no new powers,

31. The county court cannot, upon the nor extends their powers, nor authorizes any report of referees, infer facts from other facts further hearing of the parties. Rice v. Clark, reported, as they may sometimes do upon the 8 Vt. 104. Baxter v. Thompson, 25 Vt. 505. report of auditors. Kimball v. Baxter, 27 Vt.

628.

40. Where a report of referees was subject to be set aside only in part, the court refused to discharge the rule of reference, and recommitted the report for amendment. Baxter v. Thomp

32. Where a referee reports such facts as constitute an agency, the county or supreme court can find the agency, as matter of law, son. without any express statement of such conclusion by the referee. Alexander v. Bank of Rutland, 24 Vt. 222.

41. The supreme court refused to recommit the report of a referee for additional findings, where the sum in controversy was trifling.

33. Errors on hearing. Where a party Congdon v. Darcy, 46 Vt. 478. submits to a decision of a referee which requires 42. A party cannot present to a referee his him to testify, it is no objection to the report open account alone, placing his claim excluthat he was improperly required to testify; but sively upon that, and taking his chances of the testimony so given may be treated as the recovery upon it, and afterwards, in court, party's admission. Mattocks v. Owen, 5 Vt. resort to a settlement to enlarge his recovery. Rowell v. Marcy, 47 Vt. 627.

42.

578.

34. In order for a party to avail himself of 43. Discretion. An exception to the report his objection to the admission of improper evi- of referees, that the rule and form of report did dence before a referee, he must file exceptions not follow the agreement to refer, is addressed to the report for such error, and interpose it by to the discretion of the county court, and is not way of objection to the acceptance of the report, revisable by the supreme court. Wellman v. or by motion to set aside or recommit it. The Bulkley, 6 Vt. 299. question cannot be raised for the first time in 44. A judgment rendered on report of the supreme court. Graham v. Stiles, 38 Vt. referees will not be reversed for matters extrinsic,--as, questions of discretion in dealing with 35. Regularity presumed. The proceed- the report in the county court, as to recomings of referees are presumed to be correct, both mitting it, the finding of facts, the taxing of in matters of fact and of law, and the burden their own fees by the referees, &c.,--but only is upon the party seeking to set them aside, to for matters of law apparent upon the report. show error. Martin v. Wells, 43 Vt. 433. Fuller v. Wright, 10 Vt. 512. Hogaboom v. Herrick, 4 Vt. 131. Hapgood v. Burt. Ib. 161. Stevens v. Pearson, 5 Vt. 503. Bliss v. Rollins, 6 Vt. 529. Learned v. Bellows, 8 Vt. 79. White v. White, 21 Vt. 250.

Vt. 299.

II. UNDER RULE FROM A JUSTICE,

45. Under a rule of reference issued by a

36. It would be unsafe to permit a state- justice under Slade's Stat. c. 9, s. 31, the subment made by one of a board of referees to mission need not be in writing; the matters have any effect on the question of accepting or submitted must appear in the rule, but the rejecting their report. Wellman v. Bulkley, 6 amount of the claim need not; and the justice acts judicially in determining to what court the 37. Amendment and recommitment of rule shall be made returnable. (See G. S. c. 31, report. Referees having drawn up their report s. 58 et seq.) Barnett v. Peck, 6 Vt. 456. and handed it to the attorney of the recovering 46. An enlargement of a rule of reference party, discovered an error in computation, and issued by a justice, under G. S. c. 31, ss. 58-60, thereupon made a supplementary report correct- can be made only by the justice and by coning the error, requesting that it be made a part sent of the parties, and the report of the referee of the former report. Both being filed, and is not the proper evidence of this. If attempted exceptions taken to the whole, the supreme to be enlarged by the referee by consent, it court treated the additional report as part of the becomes a mere arbitration and no judgment first. Hazeltine v. Smith, 3 Vt. 535. Hutchin- can be rendered on his report. Lazell v. son, J., dissenting. Houghton, 32 Vt. 579.

III. UNDER RULE FROM PROBATE COURT.

38. It is not error to allow a referee to amend his report; or to recommit it to him for the correction of errors, and for the further statement of the facts on which his findings 47. Under Sec. 69 of the probate act of were based, and to report at the same, or the 1821, the only competent parties to a reference next term. Smith v. Sprague, 40 Vt. 43. were the executor or administrator on one side, 39. Where a report of referees is recom- and a creditor or debtor of the estate on the mitted for amendment, it is only for the pur- other. Boynton v. Boynton, 10 Vt. 107.