State of Vermont v. Ferry et al.

the rights of a party may be, when in attempting his liberty, a writ is made returnable after many months, is not the question before us. The subject of the writ is not the one complaining here. An officer after receiving a writ of habeas corpus has from three to twelve days to serve and return it, R. L. s. 1355,. depending upon the distance of the place of imprisonment from the place of return. It is in all cases, undoubtedly, more convenient for all parties interested to have some day named when the judge signing the writ will hear the case, than to have no time assigned and the time left uncertain.

V. The respondents claim that it should be alleged in the indictment that the writ of habeas corpus which the officer was attempting to serve, was duly returned, citing the case of Wright v. Marvin, 59 Vt. 437. In that case the defendant had taken property upon a writ of replevin, and made no return. either of the writ or bond. The court held in an action of trover for the property that he could not justify by showing the service of the writ alone, but that he must show its return. Whatever may be the rulings of the courts in civil cases as to property rights which depend upon proccedings in the courts, we think it good law and sound doctrine, to hold in criminal cases that no person has a right to assault a public officer, in the line of his duty, while engaged in the service of process, the process being strictly legal, and the acts of the officer in good faith, whatever the subsequent irregularities in the proceedings may be.. Stevens is not a party; the procceding is not for his benefit; the public are prosecuting for an alleged crime; the defendants were third parties, with no right to interfere to prevent the apprehension of Whitcomb. If the claim of the respondents in this respect is a tenable one, it would only be necessary for an evil disposed person to so assault and batter an officer in the execution of process as to render it impossible for him to return it, to afford him a perfect shield and defense to his illegal acts; and it would necessarily follow that an officer might be assaulted, without redress, while engaged in the discharge of acts enjoined upon him by law, acting in good faith, in the strict line of duty.

State of Vermont v. Ferry et al.

While the rule adopted in Wright v. Marvin, supra, is a salutary one and clearly correct, upon the facts in that case, it by no means follows that in all civil cases an officer cannot justify under mesne process, without showing its return. See State v. Daggett et al., 2 Aik. 148. We are not called upon, however, to discuss or consider these questions. The indictment, in respect of this objection, is good.

VI. It is insisted that it is not alleged that the respondents knew the official character of Stevens at the time of the acts -complained of. There is but one allegation of time in the indictment, namely: the 18th of August, and the allegation they "then and there well knew said Stevens to be a deputy sheriff as aforesaid," refers to that time; the date of the 20th day of August is not an allegation in the indictment, but is a date in the writ which is set forth in hæc verba.

VII. We think a dull person would understand that it is alleged in the indictment that Stevens was attempting to make the arrest and not the respondents. It is certain in that respect.

The indictment is adjudged sufficient. Judgment affirmed and cause remanded. All concur.

INDEX.

ACCEPTANCE. See FRAUDS, STATUTE OF, 2.

ACCOUNT. See SETTLEMENT 1; EXECUTORS AND ADMINISTRATORS 1, 2, 3.
ACCRETIONS. See DEEDS 3.

ADVERSE POSSESSION.

See HUSBAND AND WIFE1; PRESCRIPTION 1. 2.

AGENCY.

1. A traveling salesman, who is furnished with money by his employer to
pay his expenses while on the road, cannot bind his principal for the pay-
ment of such expenses, if, before receiving notice from the party extending
such credit, the employer has settled with his salesman and allowed him the
amount of such expenses. Nicholson v. Pease, 534.

2. A party seeking to recover under such a state of facts must show either
an authority in the agent to bind the principal in that instance, or that the
agent had been accustomed to do business in this manner, and that the
principal knew it. Ib.

See EVIDENCE 3.

AGREEMENT. See EQUITY 10, 11. 12.

AMENDMENT.

1. Where the pleader in declaring upon a written instrument misdescribes
it, he may by subsequent amendment correct the description, for such
amendment does not introduce a new cause of action; and the trial court
may, if necessary, hear parol testimony for the purpose of determining
whether the instrument, and hence the cause of action, is the same.
lings v. Lycoming Fire Ins. Co., 310.

See EQUITY 13, 14, 19, 20; PLEADINGS 22.

ANSWER. See NOTES AND BILLS 5; EQUITY 16.

APPEAL.

Bil-

1. An appeal from the judgment of a justice of the peace brings the case
de novo before the County Court. Bundy v Bruce et al., 619.

See INSOLVENCY 1, 2.

ARBITRATION AND AWARD. See LANDLORD AND TENANT 1.

ARGUMENT OF COUNSEL. See EVIDENCE 9; EXCEPTIONS 1, 5.
ASSOCIATIONS. See CORPORATIONS 2.

ASSAULT AND BATTERY.

1. No provocative words will justify an assault. Goldsmith's Admr. v.
Joy, 488.

2. Nor can they be given in mitigation of actual or compensatory damages
but only upon the question of punitive damages. Ib.

3. Exemplary damages are not recoverable as a matter or right, but are
given to stamp the condemnation of the jury upon the act of the defend-
ant. lb.

4. In determining the amount of such damages the character and standing
of the parties are pertinent. Ib.

ASSUMPSIT.

1. The defendant delivered certain logs on the pond near the plaintiffs'
mill to be sawed. The logs became scattered, of which fact the plaintiffs
notified the defendant, who paid no attention to it. Thereupon the plain-
tiffs proceeded to gather the logs and saw them. Defendant paid for sawing
bnt refused to pay for the extra labor of collecting them. Held, that he was
liable to the plaintiffs for such extra expense. Hunter v. Felton, 359.

2. The plaintiffs sawed and piled in their yard a quantity of lumber for
the defendant under the arrangement that it might remain there a reason-
able time. After it had remained there a year the plaintiffs notified the
defendant that he must remove it, as they required the room. Held, that,
the defendant having failed to remove his lumber, the plaintiffs had no right
to charge him with the expense of procuring other storage ground and mov-
ing their own lumber to it. Ib.

3. The parties were at variance as to what rule should be used in measur-
ing the logs sold the plaintiffs by the defendant, and they thereupon agreed
to use the same rule then being used by a third party. Held, that such agree-
ment was on good consideration and binding. Ib.

ASSIGNMENT. See NOTES AND BILLS 2, 3, 6, 7; TRUSTEE PROCESS 3.

ATTACHMENT.

1. H. was the owner and in the occupancy of a farm consisting of two par-
cels, the home place, on which were the buildings, and the back lot, used in
connection with the other. The home place was mortgaged to T., the back
lot to D. T. had foreclosed his mortgage, and the decree was about to
become absolute. Thereupon the plaintiff paid up the decree, and took a
quit-claim deed from T. At the same time he gave H. a bond for a deed.
Both the deed and bond were recorded. H. continued to live with his fam-
ily on the farm apparently in the same relation to it and the property upon
it that he had always been. Plaintiff (in reality) made a trade with H. to
carry on the farm for a fixed price, and went to reside in the family of H.,
where he continued for about two years. This was in 1881. Nov. 12, 1883, H.
executed a deed of the back lot to plaintiff, which was recorded the same day.
Held, that the crops raised on the home place in 1883, and 1884, and on the
back lot in 1884, were attachable on the debts of H. as against the plaintiff.
Wolcott v. Hamilton, 79.

2. The plaintiff has good title to the increase of stock sold to him by H.
and remaining on the farm which was raised after the sale of the personal
property to plaintiff. Ib.