Paine

VS.

Ely, etc.

cess (or, indeed, any proceeding at law) in his favor, must see that it be regular, at his peril.

There must therefore be

JUDGMENT for the Plaintiff.

Dec. adjourned term, 1789.

Oliver

VS.

Chamberlain.

2. Ld. Raym.,

OLIVER.

vs.

CHAMBERLAIN, Sheriff.

Escape on mesne process, for suffering one Gile, arrested at the suit of Oliver, to go at large. On not guilty, it appearing that Gile had absconded and was insolvent, the jury found for the plaintiff his whole debt in damages.

Before the Court rendered judgment, they directed the plaintiff to enter into a rule, that the defendant, Chamberlain, should have the benefit of the judgment, 1411, Powel vs. which had been obtained against Gile, the defendant indemnifying the plaintiff from cost, which was done accordingly, and judgment was rendered for the plaintiff for the whole of his debt.

Hord.

WINDSOR COUNTY.

PARKER

28.

PARKER.

PETITION FOR DIVORCE.

Exception was taken, that the citation in this was not signed by a Judge of this Court, but

Justice of the Peace.

Petition dismissed.

STATE OF VERMONT

vs.

JOHN MARSH, Esq.

This was an indictment against the defendant, John

Dec. adjourned term, 1789.

State

VS.

Marsh.

opposing a con

Marsh, for assaulting Joseph Marsh, constable for the Indictment for town of H., in the execution of his office, and rescuing stable. a horse taken by distress on a warrant for taxes. The defendant plead the general issue, not guilty.

the constable

chosen.

For the defendant, it was insisted that Joseph Marsh Defence-That was not legally appointed to the office of constable. was not legally The votes, as it appeared in evidence, for this and other officers chosen at their annual town meeting, being That he was given in to the clerk, viva voce, which had been their chosen by votes usual mode, whereas, by the 31st Section of the Constitution of this State, "All elections, whether by the people, or in the General Assembly, shall be by BALLOT, to have been free and voluntary."

given viva voce

That he ought chosen by ballot.

Jury.

The chief Justice, in his charge to the Jury, gave Charge to the his opinion on this point, in which the other Judges fully concurred.

Whether the clause in the Constitution insisted on for the defendant extends to the choice of officers in

Parker
VS.

Parker.

towns and lesser corporations, must be determined, 1s by considering the subject matter; and 2d, by comparThe 31st sec- ing it with other parts of the Constitution. The framers stitution does of the Constitution were forming a plan for the general

tion of the Con

not extend to

the election of

town officers. government of the State. They do not appear to

The above section to be

have had an eye to the internal regulation of lesser corporations. In this section they point out the mode of electing the officers to the general government, and in this view they confine it to elections by the people and General Assembly. "The people," here means the collective body of the people, who have a right to vote in such elections, and is used as synonymous to "Freemen."

The word "Election," when the choice is to be by the people or freemen, is, in every part of the Constitution, used in the same appropriate sense; as in the 7th Section," In order that the Freemen of this State

66

may enjoy the benefit of elections as equally as may “be, each town within this State may hold elections "therein." For what purpose? For the choice of Representatives. In the 10th Section: "On the day of election for choosing Representatives, etc."

I am, therefore, clearly of opinion, that the 31st Section of the Constitution does not extend to the choice of town officers, and is to be laid wholly out of

laid out of the the case under your consideration.

present case.

Dec. adjourned term, 1789.

The Jury found the defendant guilty.

STATE OF VERMONT.

vs.

tween the hours of twelve at night, and nine of the

evening succeeding.

On demurrer, exception was taken to the indictment for want of a noctanter; that it was uncertain, from

State

VS.

Mather.

Indictment for

ed for want of a

the indictment, whether the facts were committed by burglary quashnight or by day, and of this opinion were the Court, noctanter. and quashed the indictment.

ex dem.

Dec. adjourned term, 1789.

GIDEON CHAPIN

vs.

A. SCOTT.

Ejectment for lands in Weathersfield.

It was objected that the plaintiff had proved a title

Chapin

V8. Scott.

If plaintiff, in ejectment, de

mand the whole

yet he may re

1 Bur., Burges verses

to no more than three-fourths of the land in question; that, as he had demanded the whole, he had failed in cover for a part. his proof. But, by the Chief Justice, and agreed by Denex' dem the Court, in ejectments the plaintiff shall recover ac- Purvis, et al. cording to his right. If the whole be demanded, the Jury may find for a moiety, and it is good.

D. MORRISON & P. FREEMAN,

28.

W. SHATTUCK, J. BOND, R. RICE & A. SAWYER.

IN CHANCERY.

Dec. adjourned term, 1789.

Morrison and
Freeman
VS.

This was a Bill in Equity, setting forth that in the Shattuck, et al.

year of our Lord, 1752, W. Williams, Esq., of Pittsfield, in, etc., by virtue of a deed duly executed by Coates, now of the original proprietor, was seized in his demense, as of fee of and in the right No. 1, in Halifax, in the State of Vermont. That in the same year the said W. Williams, by deed under his hand and seal, duly executed, conveyed the right No. 1, to Hugh Morrison, of now deceased. That

Substance of the bill.

Morrison and from the time of the said W. Williams' said purchase,

Freeman

VS.

Shattuck, et al. until the year 1783, he was possessed of a good deed from the said Coates to himself, of the same right. That on the 15th day of May, 1754, the said Hugh Morrison, by deed under his hand and seal, duly executed, conveyed the said right to John Morrison, then of, who, on the 29th day of February, 1788, by deed under, etc., conveyed the said right to your orators (except 100 acres on the west side of said right).

And the said orators further show, that the deed from the said Coates not being recorded, William Shattuck, of in April, 1783, by misrepresentation, obtained it from the said W. W. That the said W. S. knowing that the said H. M. had a deed from the said W. W. and the said J. M., from the said H. M., of the said right No. 1, with an intent of defrauding the said J. M. for a trifling consideration, on the 26th day of June, 1783, obtained. a deed from the said Coates to himself, and gave up to the said Coates the deed given to the said W. W., as aforesaid, the said Coates being then incapable of transacting business. And the said orators further show, that the said W. S. afterwards sold the said right No. 1, to Jonas Bond, of G., who, in September, 1786, sold 200 acres, part of said right, to Reuben Rice and William Rice, of; and the 1st day of March, 1787, the said J. B. sold 50 acres, part, etc., to James Knapp, and in December, 1787, sold the remainder to Abner Sawyer, of

That the said J. K. claims no part of the right conveyed to the orators.

That the said R. R., W. R. and A. S. had brought an action of ejectment for the said right, against the orators, which is now depending, and that they are without remedy, save in this Court, etc.