cuting a valid process, or for any acts of his ing distinct interests, at different times built beyond the authority which the process con- dams across the several channels. The plainfers, the party suing it out is not responsible, tiff brought a joint action against the two for unless the officer acts under his orders or direc-setting back the water upon his land by means tion. Barnard v. Stevens, 2 Aik. 429. of the two dams, and verdict passed against one and in favor of the other. Held, no cause for setting aside the verdict. Wright v. Cooper,

64. As a general rule, when an officer in the performance of an official service (as serving an attachment or execution) commits a tres-1 Tyl. 425. pass through a mistake of fact, and the party 70. To warrant a judgment against two or for whom he acts, knowing all the facts, takes more defendants, the liability must be joint; the avails of the act of the officer, or counsels and the recovery must be limited to the extent the very act which creates the liability of the that the liability is joint as to all. Smith v. officer, he is implicated to the same extent as Kellogg, 46 Vt. 560. the officer. But where he does not direct nor 71. In an action on the case against two, control the course of the officer, but requires setting forth a joint contract to manufacture him to proceed at his peril, and the officer makes and adjust the machinery of a mill properly, a mistake of law in judging of his official duty, but that they had spoiled the work in their whereby he becomes a trespasser, even by rela- attempt ;-Held, (1), that such action would tion, the party is not affected by it, even when lie; but (2), that as the liability grew out of a he receives the money which is the result of contract it must be proved as laid, viz., as a such irregularity, and although he was aware joint contract, --and, verdict being for one of the course pursued by the officer. This does defendant, that the plaintiff could not take not amount to a consent to nor adoption of the judgment against the other. Wright v. Geer, officer's course, and, without this, the party is 6 Vt. 151. (Changed by G. S. c. 30, s. 78.) not liable. Hyde v. Cooper, 26 Vt. 552. Abbott | 72. In an action against two or more upon v. Kimball, 19 Vt. 551. 21 Vt. 152.

65. The mere expression of an opinion by the creditor to an officer employed by him, that the course taken by the officer was legal, does not make him liable for such act of the officer, if it turn out to be illegal, although he take the benefit of the act. Hyde v. Cooper.

a joint contract, there can be but one judgment. If one suffer default, and the other stand trial, the judgment as to the first is suspended until the result of the trial is ascertained. If an appeal be taken, the judgment as to all the defendants is vacated, and the entire case is removed into the county court, with all the 66. A party who sues out a search warrant parties. Fletcher v. Blair, 20 Vt. 124. (Since is not liable in trespass for the act of the officer modified by statutes.) who serves it, by entering the open door of the 73. Authority of one defendant to act plaintiff's dwelling house and making search, for another. In actions ex contractu, one codoing no unnecessary damage, although the defendant may, in the absence of instructions goods are not found; and whether the party to the contrary, employ counsel, enter appearwould, in like case, be liable if the officer, admit-ance, agree to a continuance, plead and defend tance being denied, had forcibly broken open fully for all. Scott v. Larkin, 13 Vt. 112. 18 the outer door-quare. Clearly the officer Vt. 218. This limited to a case where the would not, although the goods were not found. Chipman v. Bates, 15 Vt. 51.

other defendant has been duly served with process and is before the court. Whitney v. Silver, 22 Vt: 634. 44 Vt. 551.

74. Effect of non-joinder. The non-joinder of a joint promissor is only matter of abatement. Nash v. Skinner, 12 Vt. 219. Ives v. Hulet, Ib. 314.

67. Not contracting. Where one requests a physician to render professional services for another for whom he is not legally bound to provide, as, for his servant, or for his insane brother, and there is no express promise to pay, his liability to pay depends upon 75. In an action upon any written contract, whether it may fairly be inferred from the whether of record or not, the non-joinder of a evidence, that it was the intention of both joint contractor as defendant can be taken parties that he would pay for the services. advantage of only by plea in abatement, unless Clark v. Waterman, 7 Vt. 76. Smith v. Wat- such omission appears upon the record,-—that is, son, 14 Vt. 332. 28 Vt. 236. the very record of the very suit upon trial. McGregor v. Balch, 17 Vt. 562.

68. A engaged B to do certain freighting for him, and B engaged C to do it. A paid B 76. Thus, in an action against two, declartherefor without knowing that it was done by ing upon a joint recognizance of the two, an C. It did not appear that C did the work on issue joined upon the plea of nul tiel record, the the credit of A. Held, that A was not liable to record produced showed that two others, the C therefor. Tobias v. Blin, 21 Vt. 544. principals, were co-recognizors. Held, that the 69. Joinder of defendants. A river was record supported the declaration; that the nondivided by an island, and different parties, hav-joinder could be taken advantage of only by

plea in abatement, inasmuch as this did not 83. An act legal in itself, violating no right, appear in the declaration; or, the defendant cannot be made actionable by reason of the might have brought it into the record by crav- motive which induced it. S. Royalton Bank ing oyer of the recognizance and setting it out, v. Suffolk Bank, 27 Vt. 505. Chatfield v. Wiland could then have taken advantage of the son, 28 Vt. 49. 41 Vt. 345. non-joinder by demurrer.

Ib.

84. The plaintiffs, a banking corporation, 77. In actions upon joint recognizances, brought suit declaring that the defendants, joint judgments and other matters of record, if maliciously, corruptly and wickedly intending it appears from the declaration, or other plead- to injure, break down and destroy the plainings of the plaintiff, that there is another joint tiffs, and bring their bills into discredit and debtor who is not sued, the non-joinder may be prevent their circulation, had bought up, taken taken advantage of by demurrer, or motion in and kept out of circulation a large amount of arrest. The same is true of actions upon joint such bills and notes, and refused to exchange bonds, provided it appears from the declara- them for other funds, but demanded and comtion or other pleadings of the plaintiff that the pelled the plaintiffs to pay the specie thereon, obligor, not joined, is still living. But unless whereby the plaintiffs were injured, and dethis does so appear, the non-joinder can be prived of great profits, &c. Held, on demurtaken advantage of only by plea in abatement. rer, that the declaration did not disclose any Needham v. Heath, 17 Vt. 223. (This, I appre- legal cause of action. S. Royalton Bank v. hend, is to be presumed, for at least seven Suffolk Bank. years, unless the contrary appear." Redfield, J., in McGregor v. Balch, 17 Vt. 567.) 78.

Misjoinder. Scire facias against one of two joint recognizors and the administrators of the other. On demurrer, held a misjoinder. State Treas. v. Friott, 24 Vt. 134.

VIII. WHEN NOT MAINTAINABLE.

85. So where the defendant, by digging down near the margin of his own land, cut off an underground water supply to the plaintiff upon his land ;--Held, that this was not actionable, though done" solely with the purpose of injuring the plaintiff and not with any purpose of usefulness to himself." Chatfield v. Wilson, 28 Vt. 49. 41 Vt. 345.

86. A party is not precluded from standing 79. Oppression. The defendant made a upon and exercising a legal right, because he is settlement with the plaintiff, and received in prompted to do so by an improper or unworthy satisfaction of a judgment against him a deed motive. In re Foster, 44 Vt. 570.

of certain land, upon the plaintiff's paying in 87. No legal duty owing to the plaintiff. addition certain costs not taxable. Held, that The plaintiff took from the defendant's premthe money so paid could not be recovered back ises without his knowledge or permission a bar, as oppressively taken. Chace v. May, Brayt. or pole, belonging to the defendant, and used the same in supporting a staging set up for the

25.

80. Unavoidable accident. No action purpose of shingling the plaintiff's barn. The lies for an injury which is the result of unavoid- defendant, in the plaintiff's absence and withable accident, where there is no want of pru-out his knowledge, retook and removed the dence or care on the part of the defendant--bar, doing no more damage to the staging than (applied to a case where the defendant with was necessary to repossess himself of the bar. his sulky ran over the plaintiff in the highway). The plaintiff, without knowing that the bar Vincent v. Stinehour, 7 Vt. 62. had been removed, went upon the staging, and,

81. Motive in the exercise of a legal by reason of its being weakened by the removal right. One's motive can never alter the char- of the bar, it fell, and the plaintiff was injured acter of his lawful act. Whatever a man has thereby. In an action therefor;-Held, that the a legal right to do, he may do with impunity, defendant was justified in retaking his property, regardless of his motive. Humphrey v. Doug- and that no legal duty was imposed upon him lass, 11 Vt. 22. to give notice of the removal, or to have used diligence to give notice, and that the plaintiff could not recover for his misfortune. Twitchell, 25 Vt. 620.

White v.

82. The defendant finding the plaintiff's horses wrongfully trespassing upon the defendant's land [as where they escaped through a defect of a division fence which it was equally 88. The plaintiff owed the defendant bank, the duty of each party to repair] turned them and his agent, by his direction, sent to the into the highway, without notice to the plain- bank a certain sum of money to be applied on tiff, whereby the horses were lost ;- Held, that such debt. The money was received and so the defendant was not liable therefor; that the applied. The plaintiff afterwards inquired at act was lawful, and was not rendered unlawful the bank, and was told by the teller, but by because of any improper motives, -as malice. Humphrey v. Douglass, 10 Vt. 71. S. C. 11 Vt. 22, and see Woodcock v. Bolster, 35 Vt. 632.

mistake and in good faith, that the sum so received was less than the true sum, whereupon the plaintiff set about looking up and securing.

the supposed deficiency, and therein incurred ceived in satisfaction of the execution, and S expenses. In an action to recover therefor-afterwards paid this note. Held, that S could Held, that as there was neither fraud nor an not maintain an action against W for money implied warranty, this was a case of damnum paid, for want of privity between them arising absque injuria, and the plaintiff could not re- from any request of W. Huntington v. Wilder, cover. Herrin v. Franklin Co. Bank, 32 Vt. 6 Vt. 334. 274.

93. Election Refusing a vote. Whether

89. Procuring a wrong judgment. An the presiding officer at an election who, by mere action was held not to lie, charging that the de- error in judgment, refuses to receive a legal fendant by false testimony as a witness had vote, is,liable therefor in an action- quære. procured a wrongful judgment against the Temple v. Mead, 4 Vt. 535. plaintiff; nor for procuring, by commissioners

For particular actions, see the several titles, of an estate, the allowance of a note which the as ACCOUNT, EJECTMENT, etc. defendant had forged. Cunningham v. Brown, 18 Vt. 123.

I.

II.

I.

ACTION OF ACCOUNT.

IN WHAT CASES THE ACTION LIES.
PROCEDURE.

IN WHAT CASES THE ACTION LIES.

90. Incidental damage in guarding against plaintiff's wrong. The surface water flowed naturally from the plaintiff's land upon the land of the defendant. The plaintiff was in the habit of throwing out filthy water from his kitchen, when it would run down on the defendant's land, and so injured the defendant's well. To prevent this the defendant put up an obstruction, which not only kept back 1. Defendant bailiff-Liability. A bailthe filthy water but caused the surface water to iff is not liable, in the action of account, to turn off into the plaintiff's well to its injury. account for the property he received, but which The court charged the jury, that if such an ob- he has not turned into profits, unless he has so struction was actually necessary in order to disposed of it, or appropriated it to his own prevent injury to the defendant from the filthy use, that he has consumed or wasted it as if it water, he would not be liable, although it did were his own. That he has converted it to his have the effect to stop some of the surface own use so as to be liable for it in an action of water from running off the plaintiff's land upon trover, may not be a sufficient appropriation of the defendant's. Held correct, and that if the it to make him liable in account. Gibbs v. means employed did produce some incidental Sleeper, 45 Vt. 409. hurt or damage to the plaintiff he has no right to complain. Beard v. Murphy, 37 Vt. 99.

2. Locus of estate. An action of account was held to lie in this State, although both parties resided in New Hampshire, and the locks and canals, of the profits of which an account was claimed, were there situate. Whitmore v. Orcutt, Brayt. 22.

91. Counterfeiting materials. Where a large number of pieces of German silver, of the precise size and thickness of Mexican dollars, and made in that form for the purpose of being stamped and milled into counterfeit coin of 3. Promissory notes. An action for acthat description, were taken by the sheriff from count was held to lie against the defendant, as a person who was at the time carrying them to bailiff, for certain promissory notes (with their a place of manufacture for the purpose of hav-proceeds), which the defendant had taken paying them finished, so that he could put them in able to himself, but for the benefit of the plaincirculation as genuine coin, and they were de- tiff, then a married woman, but discovert betained by the sheriff under the direction of the fore demand and suit. Smith v. Woods, 3 Vt. State's Attorney, to be used as evidence on the 485. S. C. 4 Vt. 400.

trial of such person who was then under indict- 4. Guardian. So in behalf of a ward ment, and also to prevent their being put in against his former guardian, who continued the circulation :--Held, that the owner of the pieces, management of the estate after the termination in the absence of evidence that they were put in their present form without his knowledge, or against his consent, could not sustain trover against the sheriff therefor. Spalding v. Preston, 21 Vt. 9.

of the guardianship, and he may recover not only for the time the defendant held the estate as bailiff, but also while he held it as guardian. Harris v. Harris, 44 Vt. 320. Field v. Torrey, 7 Vt. 372.

92. Voluntary service and payment. W 5. Letting land on shares. The action of requested F to hand a certain note to H in pay-account (not book account) is the appropriate ment of an execution which H held against W, action for the settlement of accounts growing but gave no further authority. H refused to out of the letting of a farm "upon shares, or at receive the note, whereupon S at the request of the halves." Albee v. Fairbanks, 10 Vt. 314. of F signed with him a note to H which he re- Ganaway v. Miller, 15 Vt. 152. Stedman v.

Gassett, 18 Vt. 346. Aiken v. Smith, 21 Vt. for the purpose of limiting the action to the 172. Cilley v. Tenny, 31 Vt. 401. cases enumerated, but to extend the action in 6. Under a contract for joint occupancy of certain cases where it did not lie at common land for one year, and division of profits, an law. Newell v. Humphrey, 37 Vt. 265. action of account will not lie before the ex- 15. A and D were co-partners in trade. piration of the year. (In this case, the plain- They dissolved, and D assigned to A all the tiff quit without license, before the expiration property and debts to collect, pay partnership of the term.) Ganaway v. Miller. debts and account for the surplus. D being

7. Although the action of account is the indebted to T afterwards assigned to him his proper remedy for the adjustment of controver- interest in the property, to pay such debt and sies growing out of the letting of land upon account for the balance; and afterwards A asshares, yet breaches of contract on either part, signed all his interest to T, to pay his and the whereby the making of profits has been pre-partnership indebtedness to T, and to account vented merely, though they may be brought in- for the balance. Held, that T was not the to the account, need not necessarily be, but bailiff of A and D jointly, but of each severmay be sued for independently, and damages ally. Allen v. Thrall, 10 Vt. 234. recovered. La Point v. Scott, 36 Vt. 603. 16. Co-executors. The action of account

8. Equitable title. The action of account between co-executors, or co-administrators, does will not lie upon a merely equitable title of ten- not lie at common law. An administrator de ancy in common, or joint tenancy, to recover bonis non cannot maintain such action against a for rents and profits, or the avails of land by former executor, to recover a balance in his sale. The remedy is in equity. Cearnes v. Ir-hands. It is not within the statute. (G. S. eing, 31 Vt. 604. c. 41, s. 1.) The remedy is by proceedings in 9. Tenancy in common. The plaintiff let the probate court. Curtis v. Curtis, 13 Vt. the defendant have a quantity of cucumbers, to 517. 26 Vt. 568. be pickled by the defendant at the halves. The 17. Limited to two parties. Account defendant pickled them, but did not return one- does not lie between more than two parties, half the pickles to the plaintiff. Held, that an having several rights. May v. Williams, 3 Vt.

action of account, as between tenants in com- 239.

mon, would lie therefor, and that, under G. S., 18. When there are more than three parties, c. 41, s. 18, the claim might be adjusted with an action of account at common law cannot be other items in the book account action. Gates maintained to settle the partnership. v. Lockwood, 27 Vt. 286.

10. A sum found due to one tenant in common, on settlement of accounts between them, may be charged as an item in a new account, and be so adjusted in a subsequent action of account. Kidder v. Rixford, 16 Vt. 169.

Merrow, 25 Vt. 340.

Wood v.

19. Aside from G. S. c. 41, ss. 13-14, an action of account cannot be maintained which involves an accounting between more than two parties, with each a several interest. La Point v. Scott, 36 Vt. 633. Wiswell v. Wilkins, 4 Vt.

11. The interest of a tenant in common of 137. 9 Vt. 36. Smith v. Woods, 3 Vt. 485. growing crops is assignable. The assignee takes the place of the assignor, and may maintain the action of account against his co-tenant, after severance, for his just share of the crops. Aiken v. Smith, 21 Vt. 172.

20. Nor under that statute has a justice jurisdiction in such case. La Point v. Scott. 21. But in the case of a joint interest represented by several defendants and constituting them one party (and the same as to plaintiffs),

12. Co-partners. The action of account account will lie, without the aid of that statute. lies between partners to recover the balance Ib. Wiswell v. Wilkins, 4 Vt. 137.

Counts in

due upon the settlement of the partnership: 22. Book account matters. and not to recover a specific sum of money, re- account and book account cannot be joined. ceived by one of the partners for the use and May v. Williams, 3 Vt. 239. benefit of the concern. Wood v. Merrow, 25| Vt. 340.

23. In an action of account, items of book account cannot be adjusted. Cilley v. Tenny, 31 Vt. 401.

13. Held, that an action of account did not lie in favor of one who was the active partner 24. But if such items are brought in and and received the whole property and avails of submitted without objection and are adjusted, the co-partnership against the other, who had the auditor will be regarded as acting by conreceived nothing, to recover the balance of sent of the parties, as arbitrator or referee, and losses. Spear v. Newell, 13 Vt. 288. the court will not disturb the adjustment. Aiken

14. The action of account between partners v. Smith, 21 Vt. 172. exists at common law, and survives to the administrator, without the aid of the statute of

II. PROCEDURE.

1852. (G. S. c. 41, s. 13.) Our statutes on the

subject of the action of account were not passed] 25. Demand requisite. A demand to ac

count, or something tantamount to it, is neces-tract or relation out of which the account is sary to perfect the cause of action in this action. claimed; and before the auditor, all items which But as to a particular item of the account, are connected and consistent with that contract where the whole action does not depend upon or relation, may be adjusted. Joy v. Walker, that, a demand after suit brought, but before 29 Vt. 257. (Dictum contra in Ganaway v. the audit, is sufficient. Gates v. Lockwood, 27 Miller, 15 Vt. 154, denied. Ib. 262.) Vt. 286. (Chadwick v. Divol, 12 Vt. 499.) 34. In an action of account to compel an ad26. What sufficient. Where a division of justment of the rights of the parties to the rents, crops between lessor and lessee is the mode of use and occupation, or products of land, or the accounting provided for, a demand for such avails of a sale, as between joint owners or tendivision after the crops are gathered and stored, ants in common, the declaration must set forth although before the expiration of the lease, is a and define the interest and proportionate share sufficient demand on which to base an action of each party, and that the defendant has reof account. The lessor, in such case, is not ceived more than his just share. Brinsmaid v. bound to wait until the crops are consumed or Mayo, 9 Vt. 31. Ganaway v. Miller, 15 Vt. disposed of, and then renew his demand for a 152. 19 Vt. 197. Cearnes v. Irving, 31 Vt. 604. different accounting. Stedman v. Gassett, 18 35. A declaration, imperfect in these reVt. 346. spects, was held good after verdict. Strong v. Richardson, 19 Vt. 194.

27. In an action of account by one tenant ir common against his co-tenant, as bailiff and 36. The action of account between tenants receiver of the common property, the defend- in common, or joint tenants, under G. S. c. ant pleaded that the plaintiff did not before 41, depends upon privity of estate, and not of suit brought demand the rendering of an ac- contract. In order to entitle the plaintiff to the count. Held, that a demand by the plaintiff benefit of the statute, he must allege specifically that the defendant return the property or pay in his declaration the facts necessary to bring. for it, or the plaintiff would sue him, accom- the case within it, viz: The joint tenancy, or panied by a denial by the defendant that the tenancy in common, of the parties, the proporplaintiff had any right in the property, was a tions in which they hold, and that the defendsufficient demand. Aiken v. Smith, 21 Vt. 172. ant has received more than his just share or . 28. Demand superseded. Where an issue proportion. Difference between account at is joined upon the defendant's plea that he was common law between tenants in common, and never bailiff, the plaintiff is not required to under the statute, noted. Hayden v. Merrill, prove a demand, before suit, that the defend- 44 Vt. 336. ant render an account. Chadwick v. Dicol, 12 Vt. 499.

29. Declaration. In an action of account to recover money received by the defendant for which he ought to account, he should be charged as receiver, not as a bailiff, simply. Wood v. Merrow, 25 Vt. 340.

37. Plea and issue. In an action of account between partners, demanding an account of money received by the defendant arising from the profits of the business more than his just share, the defendant pleaded that he had fully accounted. Held, that an agreement signed by the plaintiff, reciting that the defend30. A count against one as receiver merely, ant had relinquished to him all claims to the must allege what money was received and from demands due the firm and to the stock of the whom ;---a count nearly obsolete, since assump-company, and that the plaintiff promised to sit for money had and received as well lies. pay all debts due from the firm, and to indemMay v. Williams, 3 Vt. 239. nify the defendant against them, did not tend to support the plea. Woodward v. Francis, 19 Vt. 434.

38. Action of account, charging the defendant as bailiff and receiver. Plea that the defendant was never bailiff and receiver-and issue joined. Held, that it was not error to

31. In the action of account at common law, charging the defendant as receiver, where the privity between the parties is created by the receipt of the money, the declaration must state by whose hands it was received; but where the privity arises from the relation of the parties, as in case of partners, this is not necessary, but receive evidence which proved the averments the relation must be stated. Moore v. Wilson, 2 D. Chip. 91. Robinson v. Wright, Brayt. 22. Squire v. Allen, Brayt. 190.

of the declaration, and to determine the issue upon it, irrespective of the sufficiency of the declaration; and (by Williams, C. J.) the 32. Where the privity which exists between County Court would not have been justified in the parties arises from their connection as part- testing the sufficiency of the declaration, on ners, this connection should be stated in the the trial of the issue formed. Onion v. Fullerthe declaration. Wood v. Merrow, 25 Vt. 340. ton, 17 Vt. 359; and see Wheelock v. Wheelock, 33. The declaration in this action need not 5 Vt. 433.

specify all the items, nor the subject matter of 39. Rules of pleading. Rules of pleading each item, but only the transaction, the con- in actions of account, given by Redfield, J.,