charge; but may be, for further and other in-his consent but against the objection of the stances of fraud. Downer v. Rowell, 25 Vt. other defendants, and verdict and judgment were rendered in favor of that defendant but 336. 19. In answer to a plea of discharge in against the others. Held not erroneous. Miner bankruptcy under the Act of 1841, the plaintiff v. Downer, 20 Vt. 461. may, under the 4th section, give written notice 28. A joint contractor who has obtained his specifying the several fraudulent acts or con- discharge in bankruptcy must, nevertheless, cealments relied upon to avoid the plea; but if, be joined as defendant in an action upon the instead of so doing, the plaintiff adopts the contract. For non-joinder in such case, the form of a special replication, thereby calling writ was abated. Roberts v. McLean, 16 Vt. for a rejoinder and special traverse, his replica- 608. 397. tion must be single; and where it set up more 29. A surety, after the discharge of his than one distinct transaction, it was held ill on principal in bankruptcy, not having proved his special demurrer. Downer v. Rowell, 26 Vt. contingent claim in bankruptcy, paid the debt. Held, that he could recover of the principal 20. The effect of a discharge in bankruptcy, therefor in an action of indebitatus assumpsit as to a particular debt, is not avoided by the upon an implied promise. Wells v. Mace, 17 omission of the bankrupt to state such debt in Vt. 503. (Reversed in U. S. Sup. Ct., 7 Howard, his schedule, unless such omission involved a 272.) fraudulent concealment. Downer v. Dana, 22 Vt. 337. 26 Vt. 735. 30. The plaintiff went into bankruptcy having an account against the defendant; but this 21. Effect of discharge. A discharge in account was not included in his schedule, nor bankruptcy is not a bar to an action against the acted on by his assignee, and was not before sureties of the bankrupt upon a jail bond, for the court in bankruptcy. Held, that such facts an escape committed between the decree in did not toll the plaintiff's right to maintain an bankruptcy and the final discharge. Dyer v. action therefor. Steele v. Towne, 28 Vt. 771. Cleaveland, 18 Vt. 241. 31. New promise. The moral obligation 22. A note discharged by a certificate in and duty of a discharged bankrupt to pay his bankruptcy is functus officio and ceases to be debt contracted before his bankruptcy, afford a negotiable. The indorsee cannot recover there-sufficient consideration to sustain a new promon by force of a new promise made to the payee. ise to pay it; and such promise need not be in It is the new promise alone which gives the ac- writing. Farmers' & Mechs'. Bank v. Flint, tion, and this is not negotiable. The action 17 Vt. 508. must be in the name of the person to whom the promise is made. Walbridge v. Harroon, 18 Vt. 448. 32. A promise to the creditor, or to his agent, to pay the debt, with an intent to confirm the original demand, is sufficient to remove the bar of a discharge in bankruptcy. Hill v. Kendall, 25 Vt. 528. 23. A discharge in bankruptcy was held to be no bar to an action for contribution by a cosurety on account of a payment made after the 33. The defendant promised to pay a debt, discharge, upon a liability for the principal discharged in bankruptcy, when he should bewhich existed before the bankruptcy. Swain come of sufficient ability. Held, that the promv. Barber, 29 Vt. 292. ise was conditional, depending upon a condition 24. An audita querela lies in behalf of a precedent, viz., his ability to pay. Sherman v. debtor confined in close jail, against the cred- Hobart, 26 Vt. 60. itor who refuses to release him after he has received his discharge in bankruptcy. Comstock v. Grout, 17 Vt. 512. 21 Vt. 566. 34. The defendant, after his discharge in bankruptcy, stated an account with the plaintiff and agreed upon a balance due, which ac25. Aliter, where the debtor is admitted to count was of items which accrued before the the jail liberties upon jail bond. In such case bankruptcy. Held, that from the naked fact he must judge for himself, and the creditor is of so stating the account the law did not imply not bound to do any act to ratify the discharge. an obligation to pay it, but that such obligation Gould v. Mathewson, 18 Vt. 65. 21 Vt. 566. must rest upon an express promise; and where 26. Pleading. A plea alleging the decree the promise was to pay this balance by his share in bankruptcy, and the subsequent discharge in the avails of certain demands in the hands of the defendant and certificate thereof without of the plaintiff ;-Held, that the plaintiff must setting forth the previous proceedings, and con- be content with that and could not recover such cluding with a verification, was held sufficient. balance in an action, since the debt had been Downer v. Chamberlin, 21 Vt. 414. legally discharged in bankruptcy. Warren v. Bishop, 22 Vt. 607. 27. In an action on a promissory note against several, with a joint plea of the general 35. The discontinuance by a debtor of his issue, the plaintiff put in evidence the discharge petition and proceedings in bankruptcy, under in bankruptcy of one of the defendants, with the Bankrupt Act of 1841, is a sufficient con sideration to sustain a written contract by his creditors to give further time of payment. Loomis v. Wainright, 21 Vt. 520. II. U. S. BANKRUPT ACT OF 1867. 43. Plea in bar, that since the commencement of the suit the defendant had been ad|judged a bankrupt, that the plaintiff had proved his debt in bankruptcy and that the bankrupt proceedings were still pending, was held ill on general demurrer, the debt not being extinguished without a discharge, and the proceedings only operating to suspend final judgment. Brandon Mfg. Co. v. Frazer, 47 Vt. 88. 44. A bankrupt who purchases of his assignee a claim originally due himself can sue Udall v. School Dis BASTARDY. 36. Exemptions. Property exempt from attachment by the State law does not pass to an assignee in bankruptcy, nor is the title of the bankrupt thereto impaired or affected by the bankrupt act. Wilkinson v. Wait, 44 Vt. 508. 37. The defendant, as constable, attached a thereon in his own name. yoke of oxen of the plaintiff which were ex-trict, 48 Vt. 588. empt from attachment. While so held, the plaintiff was adjudged a bankrupt, and the defendant was enjoined by the bankrupt court (simply) from selling the oxen. The assignee in bankruptcy afterwards demanded the oxen of the defendant, and he delivered them, under 1. Bastard-Right of inheritance. Under protest, to the assignee, who sold them and held the statute of 1821 (Slade's Stat. c. 44, s. 77), the proceeds. In trover for the oxen;—Held, a bastard can inherit from another bastard of that the plaintiff was entitled to recover their the same mother. Burlington v. Fosby, 6 Vt. full value; that the proposition that the as- 83; but not from a legitimate child of the same signee, of his own motion, without any order of mother. Bacon v. McBride, 32 Vt. 585. court, had a right to take the property, and 2. The adoption of an illegitimate child by compel the plaintiff to abandon his remedy the putative father, under G. S. c. 56, s. 6, against the defendant and follow him, the as- legitimates the child only "as respects such signee, into the U. S. District Court, is unten- father," and does not render the child capable able. Ib. of inheriting through the father as his repre 38. Discharge. A judgment rendered in sentative. Safford v. Houghton, 48 Vt. 236. an action declaring upon a contract is not "a 3. Bastardy prosecution-A civil suit. debt created by fraud," within the meaning of A prosecution for bastardy is in effect but a the U. S. Bankrupt Act, although in fact the civil suit, though conducted under some of the contract declared upon was induced by fraud. The action in that form and judgment therein are a waiver of the fraud; and the court will not go behind the record. Hence, the debtor's discharge in bankruptcy is a bar to an action on such judgment. Palmer v. Preston, 45 Vt. 154. rem. forms of a criminal proceeding. Robie v. McNiece, 7 Vt. 419. Gray v. Fulsome, 7 Vt. 452. Gaffery v. Austin, 8 Vt. 70. Holcomb v. Stimpson, 8 Vt. 141. Allard v. Bingham, 8 Vt. 470. Coomes v. Knapp, 11 Vt. 543. Spears v. Forrest, 15 Vt. 435. 4. It requires no minute of the true day, &c., when the complaint was exhibited. Spears v. Forrest. 39. A discharge in bankruptcy will not defeat a lien created by trustee process more than four months before the commencement of the 5. Defects of form in a bastardy prosecuproceedings in bankruptcy, but such lien may tion are cured by verdict, this being a civil probe enforced in chancery by a special decree in ceeding. Robie v. McNiece, 7 Vt. 419; as, that Stoddard v. Locke, 43 Vt. 574. the complaint was not signed by the complain40. A discharge in voluntary bankruptcy is ant; and that the justice returned to the county not a bar to an action to recover a provable court copies instead of the original papers. claim, where the debtor fraudulently deprived Ramo v. Wilson, 24 Vt. 517. the creditor of notice of any proceedings in 6. In a bastardy prosecution, costs are to bankruptcy. Batchelder v. Low, 43 Vt. 662. be taxed in favor of the defendant, where he is 41. A promise to pay a debt discharged in discharged, whether the judgment be rendered bankruptcy is valid though made by parol, and on a verdict, or on demurrer, or on quashing the may be proved by parol, and by the plaintiff proceedings, or on non-suit,- -as in other civil himself, where he is made a general witness by suits. Allard v. Bingham, 8 Vt. 470. statute. Barron v. Benedict, 44 Vt. 518. 7. A prosecution for bastardy is not such a 42. The claim of a conditional vendor for "civil cause as is reviewable under the statan illegal sale by the vendee is not barred by ute. Robinson v. Dana, 16 Vt. 474. Sweet v. the vendee's discharge in bankruptcy, although Sherman, 21 Vt. 23. the vendor has proved his claim in bankruptcy for the contract price-his lien is preserved. Johnson v. Worden, 47 Vt. 457. 8. When maintainable. A bastardy prosecution may be maintained in the name of a married woman, where the child was born be. fore her marriage,-her husband in such case that it was the same as if copies had been subjoining in the request and prayer for a warrant. stituted by order of the court. Ramo v. Wilson, Sisco v. Harmon, 9 Vt. 129. But not where 24 Vt. 517. 32 Vt. 629. the child was conceived and born during her 19. G. S. c 33, s. 11, authorizing the filing coverture, even by proof of non-access of the of a new declaration in case of the loss, &c., of husband. Gaffery v. Austin, 8 Vt. 70. 9 Vt."the writ and declaration," does not apply to 133. a prosecution for bastardy, where the original 9. A bastard child born out of this State, its complaint, justice's record and warrant are lost. mother having at the time no domicil within Bingham v. Marcy, 32 Vt. 278. ute. this State, cannot be affiliated, or its mainten- 20. Interposition by overseer of the ance charged upon the father, under our stat-poor. By the Bastardy Act of 1822 (Slade's Graham v. Monsergh, 22 Vt. 543. Egle- Stat. 366, s. 5), where the overseer of the poor son v. Battles, 26 Vt. 548. neglected for three months to take the control 10. But if the mother at the time of the of a bastardy prosecution commenced ;-- Held, birth is bona fide an inhabitant of this that it might be settled and released by the comState, the birth of the child out of the State, plainant. Hurd v. Seeker, 12 Vt. 364. (The by accident or during a temporary absence law is since changed.) from this State, will not deprive her of the 21. A bastardy proceeding cannot be comstatute remedy against the father. Egleson v. menced in the name of the overseer of the Battles. poor, under G. S. c. 74, s. 17, where the wo 11. Where brought. A bastardy prosecu-man had, before her delivery, commenced a tion may be brought where the mother resides, prosecution in her own name, and during its irrespective of the place where the child was progress had compromised it and given a begotten. Allen v. Ford, 11 Vt. 367. discharge. Norwich v. Yarrington, 20 Vt. 12. Complaint. A bastardy complaint 473. must be in writing, and this implies signing by 22. Where the overseer of the poor had the complainant, by herself, or by some person for her, by her authority. Graves v. Adams, 8 Vt. 130. 13. It is not necessary that the complainant should swear she is a single woman. It is sufcient that she appears before the justice as such, and in that character makes her complaint. Robie v. McNiece, 7 Vt. 419. 14. A bastardy complaint by J G, alleging that the defendant did beget a child on one J G, &c., was held insufficient-“ one J G” imply ing a third person. Graves v. Adams, 8 Vt. 130. taken charge of a bastardy prosecution according to the statute, and the mother had afterwards released the respondent, and the town was afterwards secured or indemnified against the support of the child;-Held, that such release was a good defence to the further prosecution of the complaint. Humphrey v. Kasson, 26 Vt. 760. 23. In a prosecution against the mother of a bastard, under G. S. c. 74, s. 17, no certificate of the overseer of the poor of his intent to prosecute, as under s. 13, is necessary. Hale v. Turner, 29 Vt. 350. 15. The complaint alleged the proceedings 24. The mother's right. In settlement of to be under a statute which was in fact repeal- a bastardy prosecution commenced by the ed, but it was good under other statutes. Held, mother, the father of the child gave her his that this was of no importance; no reference to promissory note, but was afterwards prosecutany statute was necessary, since the court takes notice of the general statutes of the State. Blood v. Morrill, 17 Vt. 598. ed by the overseer of the poor and was compelled to give a bond to indemnify the town against the support of the child. The mother always supported the child. Held, that the note was on good consideration, and a recovery by her was had thereon. Knight v. Priest, 2 16. Warrant. An objection for defect in the service of the warrant in a bastardy case, if not made before the justice, is waived and cannot be taken in the county court. Quow v. Vt. 507. Conlin, 31 Vt. 620. 25. Money received by the overseer of the 17. Copies. Under the practical construc- poor in settlement of a bastardy prosecution tion of the Bastardy Act, copies of the pro- controlled by him and paid into the town treaceedings before the magistrate, instead of the sury, may be recovered of the town by the original papers, have been sent up and used in mother of the bastard, who supported him until the county court, which is, perhaps, the proper he became old enough to support himself. It Sisco v. Harmon, 9 Vt. 129. was the duty of the overseer, under the statute, 18. Although in bastardy proceedings the to apply the money 'solely for the support of statute in terms requires the justice to return the child." Drake v. Sharon, 40 Vt. 35. the original papers to the county court, yet 26. Settlement. The discharge or comwhere he returned copies instead ;-Held, after promise of a bastardy prosecution is a sufficient verdict, that no objection for this cause lay; consideration for a note to the complainant. course. 46 Haven v. Hobbs, 1 Vt. 238. Knight v. Priest, 2 Vt. 507. Holcomb v. Stimpson, 8 Vt. 141. Fulsome, 7 Vt. 452. Simmons v. Adams, Supra. 35 Vt. 15. Humphrey v. Kasson, 26 Vt. 760. 36. In order to the discharge of a surety on 27. A settlement made with the mother of a bastard by the putative father, or her release such recognizance, it is not enough that the executed to him, operates only as a satisfaction principal appear in the county court and deor release of her own claim, and does not, unless fend the suit, but there must be a formal surmade with the consent of the overseer of the render of the principal into the custody of the poor, defeat his right to commence or control court, and an exoneretur entered upon the rea prosecution in the name of the mother, or to cord. Blood v. Morrill, 17 Vt. 598. Humcommence one in her own name. Sherman v. phrey v. Kasson. Johnson, 20 Vt. 567. 26 Vt. 764. 29 Vt. 353. 37. It is no defense to an action against the 28. Nor will the consent to such settlement surety upon such recognizance, that by reason by the overseer of the town where the mother of the sickness of the principal he could not be resides, avail against a prosecution by the over- surrendered in court. Humphrey v. Kasson. seer of the town where she has her legal settle- 38. A.recognizance under the bastardy act ment, and to which she becomes chargeable. to perform the order of the court, which order Hale v. Turner, 29 Vt. 350. included an installment over-due at the time 29. Satisfaction by intermarriage. The the recognizance was taken, was held valid as intermarriage of the parties to a bastardy pro- to the whole. Hand v. Allen, 25 Vt. 103. secution, although after the birth of the child, 39. Enforcement of order. The mode of and although control of the prosecution has enforcing the orders of the court in a bastardy been assumed by the overseer of the poor, case, upon the recognizance taken by the jusabates and terminates the prosecution. Gordon tice, is the same as is prescribed as to a substiv. Amidon, 36 Vt. 735. tuted recognizance in the county court (G. S. 30. Evidence. The declarations of the c. 74); and a judgment in scire facias upon plaintiff in a bastardy prosecution are evidence such original recognizance, for the present worth against her in chief, though made after the of the sums by the order made payable in overseer of the poor has taken control of the future, was held erroneous. Freeman V. prosecution. Sterling v. Sterling, 41 Vt. 80. Batchelder, 35 Vt. 13. 40. A judgment in the Supreme court against a surety on the recognizance given in a bastardy case falls within G. S. c. 30, ss. 65–7, and, by s. 68, a scire facias thereon may be brought in the county court. Freeman v. 31. In a bastardy prosecution, evidence tending to show sexual intercourse between the plaintiff and others than the defendant, and acts of indecent familiarity with them, outside of the time within which according to the course of nature the child could have been begotten, Batchelder, 36 Vt. 292. was held inadmissible, either as independent evidence, or as contradicting what the plaintiff II. 2. had, as a witness, denied on cross-examination. 1b. 32. So, also, evidence that the plaintiff endeavored to procure an abortion. Ib. See Sweet v. Sherman, 21 Vt. 23. 33. Default. An order of affiliation, and other orders, in a bastardy prosecution, may be made upon default of the defendant to appear. Blood v. Morrill, 17 Vt. 598. As to legal settlement of bastard, see PAUPER, BILL OF LADING. The indorsement and transfer of a bill of lading as collateral security for the payment of a draft drawn upon the faith of it, was held to transfer the title to the cargo. (This applied to Tilden v. 34. Recognizance. The original recogniz- goods transported by railroad.) ance entered into before the justice in a bastardy Minor, 45 Vt. 196, and see Davis v. Bradley, prosecution, conditioned that the defendant 24 Vt. 55. 28 Vt. 118. shall appear in the county court to answer the 35. The liability of bail on such recogniz- BILLS AND NOTES. FORM, OPERATION AND VALIDITY. TRANSFER. 1. Mode. 2. Time of transfer; Holder bona fide-for value. 3. Effect as to cutting off defenses gin "Payable in merchantable fulled cloth in V. ACTION. Fletcher 8. A memorandum on the margin of a note 1. Note payable in specific chattels, specifying certain items of property at certain 2. Lost note. 3. Parties. 4. Pleadings. 5. Defenses. I. FORM, OPERATION AND VALIDITY. sums-as "Stove $26," &c.-the sum total of which, as added, equalled the sum expressed in the note, was held, in an action for money had and received, to be too uncertain to be relied upon to determine that the consideration of the note was other than money. Cummings v. Gassett, 19 Vt. 308. 9. A condition written on the back of a note was treated as if incorporated in the note. Henry v. Colman, 5 Vt. 402. 16 Vt. 29. 1. Signing. The payor of a note is bound by his signature affixed thereto by the nominal payee by the payor's request. The person so affixing the signature is regarded not so much 10. In an action on a note, upon which an an agent, as an instrument used by the payor indorsement of part payment appeared erased; to perform the act by which he binds himself.-Held, that the note might be read in evidence Haven v. Hobbs, 1 Vt. 238. Bellows v. Weeks, without first explaining the erasure, such in41 Vt. 603. dorsement being no part of the note. Kimball 2. Delivery. The maker of a promissory v. Lamson, 2 Vt. 138. note took it from the payee for the purpose of 11. Canadian instrument. A writing, obtaining the signature of a surety, but, after signed by the defendant, acknowledging before obtaining such signature, refused to redeliver two notaries in Canada an indebtedness to the the note. Held, that for want of delivery the plaintiff for value received, and promising to surety was not bound by the note. Chamber- pay that sum to him or order with interest, lain v. Hopps, 8 Vt. 94. 30 Vt. 25. was held to be a promissory note which could be declared upon as such in this State. Hitchcock v. Cloutier, 7 Vt. 22. 3. A note given under an agreement not to be used unless signed also by certain others, is not effective in the hands of any person who takes 12. Negotiability not essential. An open it with knowledge of such agreement, unless letter of request from one to another to pay a fully signed as agreed. Harrington v. Wright, third person a certain sum of money-as, in 48 Vt. 425;-and see Farm. & Mechs. Bank v. this case, an order-is a bill of exchange; and Hathaway, 36 Vt. 539. Holmes v. Crossett, 33 it is not essential to the validity of a bill of exVt. 116. change, or promissory note, that it should be 4. Void for uncertainty. A note promis- negotiable. Arnold v. Sprague, 34 Vt. 402. ing to pay JB "sixteen the first day of March 13. Payable in specific articles. A connext with interest," was held void for uncer- tract in the form of a promissory note, payable tainty, and that parol evidence was not admis-in specific articles, is treated in this State as a sible to explain it ; and that a recovery could be promissory note, as to the form of declaring had, counting on the original consideration. upon it, and the necessity of proof of considerBrown v. Bebee, 1 D. Chip. 227. ation. Denison v. Tyson, 17 Vt. 549. Brooks v. Page, 1 D. Chip. 340. Dewey v. Washburn, 12 Vt. 580. 215. 5. The same was held, where the note was to pay "J. & Wainwright" (a sum named) "in one from the first of Oct. next, in cattle or 14. It is so treated with reference to the merch❜ble grain by the firs of January follow-statute of limitations as to promissory notes ing, with use.", Wainwright v. Straw, 15 Vt. witnessed. Meed v. Ellis, Brayt. 203;-although no consideration be expressed in it. 6. Marginal memorandum, A memoran-Leonard v. Walker. Ib. Bragg v. Fletcher, dum made at the bottom or in the margin of a 20 Vt. 351. written contract at the time of signing it-and 15. A recovery can be had on such note in this will be presumed unless the contrary ap-assumpsit, under the common counts for money pears--which forms an important qualification had and received. Perry v. Smith, 22 Vt. 301. of the contract, and especially when this is for Reed v. Sturtevant, 40 Vt. 521. the ease of the maker, has the same effect as if 16. The indorsee of such a note, though inserted in the body of the contract. Whether not negotiable, must, in order to charge the such memorandum of the place of payment indorser, follow the rules of the law merchant merely is to be considered a part of the contract with respect to negotiable paper in the matter -quære. Fletcher v. Blodgett, 16 Vt. 26. of due demand and notice. Aldis v. Johnson, 1 Vt. 136. 7. A promissory note payable in cash one day after date, had a memorandum in the mar 17. Where a note is payable in collateral |