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Gray v. Stevens et al.

out thereon, but that there was no agreement that the same should be the property of the plaintiff until said contract should be fulfilled by Stevens, as the plaintiff claimed. The evidence of the defendants also tended to prove that at the sheriff's sale the hay was bid off, partly by Redway, and partly by one Mallory, and that the plaintiff bid off a quantity of straw which was sold by the sheriff ; that the defendant Stevens sold the hay and straw that was reserved to him by the officer not to Redway but to Mallory, and that Mallory exchanged with Redway and took the hay Redway had bid off and let Redway have that he had purchased of Stevens. The hay and straw, which had been sold by the sheriff, had not been removed by the purchasers, but was in the plaintiff's barn when the hay in controversy was removed, and there was enough of it to have kept out the plaintiff's cows. The defendant's evidence also tended to show that Redway had no knowledge of any claim on the hay and straw, except such as Stevens admitted, that is, his agreement that the same should be fed out on the place.

It was conceded that this suit was commenced in the night after the hay and straw was removed, and it was admitted that Stevens had properly fed and cared for the plaintiff's cows up to that time.

The defendant's counsel requested the court to charge the jury that trespass could not be sustained against either defendant, as Stevens was a co-tenant, or at least a bailee with a beneficial interest, and there had been no destruction of the property, as Stevens had a right to the possession and control of the hay and straw and to feed it to his own stock. Second, that Stevens, from his relation to the property, had such a right that bona fide purchasers from him would be protected.

But the court declined to charge as requested, and did charge, among other matters not objected to, that if the jury found the contract to be as the defendants claimed, a mere agreement by Stevens that the hay and fodder was to be fed out on the place, then the plaintiff could not recover; but that if they found that by the contract between them, all the hay and straw was to be and remain the property of the plaintiff, until Stevens should fully perform his part of the agreement, then the plaintiff was entitled to recover the value of the said hay and straw.

Verdict for the plaintiff. Exceptions by the defendant.

Gray v. Stevens et al.

Merrill & Willard for the defendants.
J. A. Wing for the plaintiff.
The opinion of the court was delivered by

REDFIELD, CH. J. The leading question in this case, i. e. whether the action of trespass will lie, seems to us expressly decided in the late cases of Briggs v. Oaks, same v. Bostwick, 26 Vt. 138 and same v. Bennett 26 Vt. 146. These cases were extensively discussed at the bar; and the opinions contain all the argument which I could now offer, and which it is not important to repeat here. The case of Farrant v. Thompson, 5 Barn. & Ald. 826, had been adopted by this court in Swift, v. Mosely 10 Vt. 208, where it was decided, that if the tenant of personal property, sold the same during the term, he thus determined his tenancy and forfeited all right in the property; and the general owner might sue either the tenant who sold the property or the purchaser, in trover, and by parity of reason, in trespass. But in the late cases referred to, we decided that the lessor of a farm who stipulates, either expressly or by reasonable implication, to have the general property in the crops, and that they should be consumed upon the farm, or if the same stipulation was made in regard to other property put on the farm, or raised there, as that it should be kept there during the term, and the tenant, in violation of such stipulations, sold the same and suffered the property to be removed from the farm, all his right and interest therein was determined, and the lessor might recover for it, in trespass, against all consenting to, or aiding in the removal. The same general principles are held in Smith v. Atkins, 18 Vt., 461. We also substantially adopted the principles of the case of Lewis v. Lyman, 22 Pick. 437, in the case of Briggs v. Oaks. The difference between the foregoing cases, and that of Hurd v. Darling, 14 Vt; S. C., 16 Vt., arises altogether from the difference in the contracts in the cases, and the construction the court gave to them. That the contract in the case of Hurd v. Darling, was fairly susceptible of the same construction we give the present contract, or which we gave the contract in Smith v. Atkins, is undoubtedly true; but the contracts were very far from identical, and altogether susceptible of the different construction put upon them. But it is certain the later cases incline

Wrisleys v. Kenyon.

very strongly to the rule which we here adopt, and it is undoubtedly the safer and surer rule, both for landlord and tenant.

II. It is certain that the defendant Redway could derive no more right from Stevens than Stevens had, however innocently he might have acted. Stevens stood in no such relation to the plaintiff, as would enable him to convey more title than he himself possessed, which was only to have the hay fed out upon the farm.

III. The rule of damages was fair enough, as it seems to us. The plaintiff had a right to have all the hay fed out upon the farm, or as nearly as the stock could be calculated in proportion to fodder, leaving all doubts in favor of having less stock than fodder, and the small residue of the hay the plaintiff had the right to purchase upon certain terms. Under this state of the contract, the plaintiff was not bound to adopt a different rule of settling the transaction, nor, when defendant had suffered a large quantity of hay to be sold upon execution against him, was plaintiff bound first to sue the sheriff and recover what he could of him. He might sue any one, and every one, who intermeddled with the hay, contrary to the terms of the lease, and the plaintiff's rights under it.

The case seems to have been correctly tried, and the judgment is affirmed.

ELEAZER D. WRISLEY AND CHARLES WRISLEY v. Rufus

KENYON.

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A justice judgment against a minor is valid, and cannot be set aside on account of his infancy, if his father and natural guardian was sued jointly with him, and appeared and defended the suit.

AUDITA QUERELA to set aside a judgment recovered before a justice of the peace, in favor of the defendant against the complainants, on the ground that the complainant Charles Wrisley was

Wrisleys v. Kenyon.

a minor, and appeared only by attorney, and had no guardian ad litem appointed to appear and defend for him. Plea, the general issue; trial by the court, March Term, 1855,-POLAND, J., presiding.

Certified copies of the record of the justice were introduced, from which it appeared that the suit was for a trespass committed by the complainants jointly, and it was admitted that, at the time of the rendition of the judgment, Charles Wrisley was a minor, and that the other defendant in that suit, Eleazer D. Wrisley, was his father and natural guardian. Both of the complainants attended the trial and were witnesses, and each one of them took an active part in the preparation and management of the defense of the suit. Luther Henry appeared as counsel, and conducted the defense as attorney for both, but he testified that he was employed by Charles. Nothing was said about Charles being a minor, and no guardian was appointed by the justice to defend for him. Upon these facts the county court rendered judgment for the defendant, to which the complainants excepted.

L. Henry for the complainants.

P. Dillingham for the defendant.

The opinion of the court was delivered by

ISAAM, J. This writ of audita querela is brought to vacate a judgment which was rendered against the complainants in favor of Mr. Kenyon. The ground of complaint is, that Charles Wrisley, one of the defendants in that suit, was an infant, that he appeared by attorney, and that no guardian ad litem was appointed by the court. It appears from the case, however, as well as from the record of the justice, that Eleazer D. Wrisley was the father and natural guardian of the minor, that the suit was prosecuted to judgment against them both, that they appeared at the trial, and that the father took upon himself the defense of the suit. As a general rule infants must defend by guardian. They cannot appoint an attorney, and therefore cannot appear by one. Co. Litt. 135, b. note 220. Comstock v. Carr, 6 Wend. 526. In cases, therefore, when the infant is sued alone, or jointly with others, it is incumbent on the plaintiff to see that the rights of the infant are

Wrisleys v. Kenyon.

protected by a guardian. For that purpose the court, on the application of the plaintiff, will appoint a guardian ad litem, as that power is incident to every court; or the plaintiff in the first instance may notify the father of the minor of the pendency of the suit, and if he appears and makes defense the judgment will be conclusive. If notice has been given to the father and natural guardian, no guardian ad litem need be appointed by the court, and if an infant sues, or is sued, and his natural guardian is a party, as such, to the proceedings, no other admission by the court is necessary, 1 Swift's Dig. 60; Archer v. Frowde, 1 Stg. 304. If an infant has no natural guardian, notice to his general guardian appointed by the orphan's court will be sufficient, Mercer v. Watson, 1 Watts, 330. In the case of Robinson v. Swift, 3 Vt. 283, it was held that an infant was bound by a decree of the probate court, in the distribution of an estate, where his guardian was notified and defended. In such cases no guardian need be appointed by the court. In this case the father was jointly sued with the minor. He, therefore, had notice of the pendency of the suit against the minor, and he appeared and took upon himself the defense of the suit. His appearance and defense in that suit was an appearance for the infant, as well as for himself. That the father, as the natural guardian of the infant, is the proper person to be notified, that he may appear and defend, and that a judgment against the minor, under such circumstances, will be conclusive and binding, was decided in the case of Priest v. Hamilton, 2 Tyler 50. The doctrine of that case is approved in 1 Amer. Lead Cas. 265, and is in accordance with the practice in this state from its earliest period.

The judgment of the county court must be affirmed.

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