1842. Hicks, adm. of 2. But if the plaintiff were tenant in common, the defend- BENNINGTON, February, ant had the same right to possession which he had, and nothing which defendant should do with the property, short of destroying plaintiff's interest therein, would amount to a conversion of it, as against him. This is not pretended, for he Sayles et al. did not even sell it, which, as it would seem, does not amount to a conversion. Tubbs v. Richardson, 6 Vt. R. 442, and cases there cited. v. Judgment affirmed. CHARLES HICKS, Administrator of the Estate of NORMAN The act of 1835, enacting that, in actions on contract, if any defendant was not a party to the contract, he shall recover his costs and the plaintiff may recover against the other defendants, was repealed on the 20th of November, 1839, by the provisions and enactments of the Revised Statutes. ASSUMPSIT, on a promissory note, against the defendants as partners under the name and firm of Caleb Sayles & Co. Plea, non assumpsit. Issue to the court. The writ in this case was prayed out on the fifth day of May, 1840, and made returnable at the June term of the county court. On the trial in the county court, it was admitted that Caleb Sayles and Enos S. Sayles were the partners composing the firm of Caleb Sayles & Co., and that Caleb W. Sayles was not liable in this action. The plaintiff contended that he was entitled to recover against the defendants who composed said firm, under the statute of 1835, relating to parties in actions at law, which enacts that, in actions founded on contract, in case any defendant was not a party to such contract, he shall recover his costs, and the plaintiff may recover against the other defendants; and thereupon the county court rendered judgment against Caleb Sayles and Enos S. Sayles for damages and BENNINGTON, costs, and in favor of Caleb W. Sayles for his costs, and the February, 1842. defendants excepted to the decision. Hicks, adm. of Sayles et al. W. S. Southworth, for defendants. The case depends upon the question, is the statute of 1835, in relation to misjoinder of defendants, to apply? The defendants contend that it is not to apply. 1. The suit having been commenced May 5, 1840, the statute of 1835 was already repealed. Rev. Stat. ch. 111, sec. 4 & 13. Chapters twenty-five and twenty-eight of the Revised Statutes took effect November 20, 1839. 2. If the statute of 1835 remained in force till July 1, 1840, still, as it was then repealed, the case, in all further proceedings, is to be governed by the Revised Statutes, or the common law. Rev. Stat. ch. 111, sec. 5. The privilege of taking judgment against those who are found to have made the contract, and suffering judgment as to the others, is not saved by sec. 5, ch. 111, Rev. Stat. The plaintiff commenced his suit precisely as he would have done had there been no statute. Here is no ' act' done which is to be affected-no 'right' established. That the clause in relation to any suit or proceeding had or commenced, '&c. does not save this privilege to the plaintiff, appears in the provision which follows, that the proceedings shall, in such cases, be conformed to the provisions of the Revised Statutes. J. S. Robinson for plaintiff. The Revised Statutes, title 29, ch. 111, sec. 5, provides that the repeal of former acts shall not affect any suit or proceeding had or commenced, in any civil case, before the time when such repeal shall take effect. By virtue of this provision, judgment was properly rendered against two of the defendants. The act of 1835 authorized the bringing the suit against any number of defendants, and the repeal of the law cannot have any retroactive operation so as to affect a suit already commenced. Per Collamer, J., Gilman v. Morse, 12 Vt. R. Per Redfield, J., Baker v. School District, No. 1, 12 Vt. R. 194. Perkins v. Perkins, 7 Conn. 566–7. 4 Burr. 2460. 7 Conn. 557. 7 Johns 477. The opinion of the court was delivered by BENNINGTON, February, v. BENNETT, J.-On the trial it was admitted that two of 1842. the defendants were partners, and that Caleb N. Sayles was Hicks, adm. of not connected with them; and the only question in the case Hinsdill is, can the court render judgment for the plaintiff against Sayles et al. the two defendants and in favor of the other? In 1835 the act was passed which authorized, in actions on contract, if it turned out that one of the defendants was not a party to it, he might recover his costs, and the plaintiff recover against the other defendants. This act was not carried into the revised statutes, which generally went into effect from and after the 1st day of July, A. D. 1840. The repeal of the existing acts of the legislature, by means of the revised statutes, was not to affect any civil suit pending at the time the repeal took effect. The present suit was commenced in May, 1840; and the simple question is, at what time was the act of 1835 repealed? Though the 1st section of the 111th chapter of the revised statutes provides for their going into effect after July 1, 1840, yet the 4th section enacts that, where any of the provisions of the revised statutes are made to go into operaation at any time before or after the first day of July, 1840, the corresponding provisions, if any, of the repealed statutes, shall cease to operate when, and shall continue in force. until, the said new provisions shall go into operation. The act of 1835, relative to parties to actions, is one that is enumerated, in the 12th section, as among the repealed acts. By the 13th section of the same chapter, both the 25th and 28th chapters of the revised statutes, the former relating to courts, and the latter to process and judicial proceedings, went into operation on the 20th day of November, 1839. We think that when the revised statutes, relative to the same subject matter to which the act of 1835 relates, went into operation, the repeal of that act took effect under the provisions in the 4th section. The result must be, the judgment of the county count is reversed. 1 BENNINGTON, February, 1842. Manchester v. Dorset. TOWN OF MANCHESTER V. Town of DORSET. Where a person resided in a town eight years in succession from the first day of April, 1817, and his list that year, exclusive of his poll, and for each of the four years next thereafter, exceeded sixty dollars, it was held that the list of 1817 could not be reckoned as one of the lists necessary to gain a settlement in such town, under the fourth section of the act, passed Nov. 4, 1817, providing that a person may gain a settlement if his rateable estate, besides his poll, shall be set in the list at the sum of sixty dollars or upwards, for five years in succession,-the list of 1817 having been made previously to the passage of the act. Where such person, after the passage of the act of 1820, relating to the grand list, was possessed of property sufficient to have produced a list exceeding sixty dollars, under the listing laws previously in force, but, under the act of 1820, the list of such person's property was below sixty dollars, it was held that such reduced list operated to prevent the gaining of a settlement by such person, under said act of 1817, although his list for the four previous years exceeded that sum. THIS was an appeal from an order of removal of Abel Derby, Catherine, his wife, and seven minor children, from the town of Manchester to the town of Dorset, made by two justices of the peace on the 20th day of April, 1840, at a court of examination held at said Manchester on the day and year last aforesaid. Plea, that, at the time of making said examination and order of removal of the said Abel and Catharine, his wife, and their said minor children, neither of them had a legal settlement in said town of Dorset. Issue to the court. On the trial in the county court, the following facts were agreed to by the parties, viz : - Abel Derby, being of full age, resided in Dorset from the first of April, 1817, for the space of eight years. His rateable estate, held in his own right, besides his poll, for the first six years, was set in the list of Dorset at the following sums: In 1817, $136.75; in 1818, $110.00; in 1819, $117.75; in 1820, $81.80; in 1821, $81.40; in 1822, $59.36; and the appraisal of his property in 1822, was as follows:-One house and lot appraised at $100.00, thirty acres of land at $267.00; and two cows and other cattle of three years old, five cattle of two years old, and two horses and mules, comprised the list of his personal estate, which real and personal estate, under the act relating to the grand list then in force, BENNINGTON, was set in the list at the above sum of $59.36. From these facts, the county court decided that the said Derby was unduly removed, and rendered a judgment for the defendants. The plaintiffs excepted to the decision. Sargeant & Miner, for plaintiffs. The pauper was put in the list for five years in succession at over sixty dollars; but one of those years was the list of the spring previous to passing the law. But unless he was in statu quo from the 1st of April to the 6th of November, 1817, doing nothing towards acquiring a settlement, he either gained a settlement under the old law or the list of 1817 must be reckoned. Stamford v. Whitingham, 2 Aik. 188; and Poultney v. Fairhaven, Brayton, 185, are analogous to this case. In these cases the paupers had come into town less than a year previous to passing the act of 1801, and the act is as much prospective as that of 1817, which says that a person being set in the list five years, &c., shall have a settlement. But there is another reason why Derby acquired a settlement in Dorset. The act of 1817 provides that any person, being set in the list, &c., five years, shall have a settlement. When this law was passed, cows were set in the list at $6.50; cattle, two years old, at $5.00; horses and mules at $13.50. In 1820 the legislature altered the mode of assessing property, and established the following rates: "Cows $3.00; cattle, two years old, $2.00; horses and mules $8.00. Derby had, the sixth year that he lived in Dorset, 1822, a list of $59.36. His personal property that year, had not the listing law been changed, would have amounted to $92.36, independent of any reduction made by the different manner of assessing real estate. The legislature intended, by the law of 1817, that if a man had a list of sixty dollars, according to the law then in force, he should gain a settlement. Property was intended to be the basis of acquiring a settlement. Suppose the law had been that every man actually worth five hundred dollars, living in a town five successive years, should have a settlement, and, before the five years had run, VOL. XIV. W. R. IV. 29 February, 1842. Manchester v. Dorset. |