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Stephens v. Thompson et al.

and he would settle it; and that afterwards, at the date of the note, he and Franklin looked over the account and they agreed on the balance at $74.95; that Franklin, after they had so agreed, wrote the note and signed it, and wrote a receipt, and presented him the note, and asked him to sign the receipt; that he told Franklin he would take the amount they had agreed on, but wanted his pay; that he did not like that note ; and that Franklin said it would make no difference, and would be just as well, he would have his pay in a few days, or words to that effect; that he signed the receipt and took the note ; the receipt being as follows, “ received of George Franklin his note to balance account up to this date.”

Thompson offered in evidence the deposition of one David Greeley, to the admission of which the plaintiff objected. It appeared that it was taken during the term, on Saturday evening, at about five o'clock, the trial being on Monday after; and was taken after notice by the justice, (who took it,) to the plaintiff to attend at the taking, which notice was given verbally at 4 o'clock the same evening. The plaintiff attended at the taking, but had not sufficient or reasonable notice to procure the attendance of his counsel, and he objected to its being taken on that account. The court excluded the deposition, and to their excluding it Thompson excepted.

Thompson requested the court to instruct the jury, that if the note was taken by the plaintiff in payment of the balance found at the time of giving it, the plaintiff was not entitled to recover against Thompson ; that the receipt was prima facie evidence that the note was so taken in payment, and the burden of proof was upon the plaintiff' to show that it was not so taken. The court declined so to charge; but did charge that the taking of the note, and giving the receipt, were so many circumstances to be weighed by the jury, in connection with the rest of the evidence, in determining whether the note was to be taken in payment or not; that if they should, from all the evidence, find that it was the understanding of the parties that the execution and delivery of the note and receipt, should be in payment, satisfaction or discharge of the account, or that Stevens should look to Franklin alone for pay

Stephens v. Thompson et al.

ment, the plaintiff was not entitled to recover against Thompson. To the refusal of the court to charge as requested, and the charge on this point, Thompson excepted.

Verdict for the plaintiff.

Peck & Harvey and Underwood & Hard for the defendant Thompson.

The only claim set forth in the original declaration, not only on its face appeared to be, but, in fact, was against Franklin alone. It was therefore error to permit the filing of a count upon a claim against Thompson and Franklin, because the new count was for a different cause of action.

The receipt of the note “ to balance account,” was prima facie eridence that the note was accepted in payment and discharge of the account. Hutchins v. Olcutt, 4 Vt. 549 ; I hatcher v. Dinsmore, 5 Mass. 302; Chapman v. Durant, 10 Mass. 47; Follett v. Steele, 16 Vt. 30 ; Torrey v. Baxter, 13 Vt. 452.

The deposition of Greeley was improperly rejected. If the party in fact attends, the question of the reasonableness of the notice is thereby settled. The statute only requiring that the notice “ shall be given or served so that the party may have a reasonable time to appear and be present.” Acts of 1854, p. 4.

L. B. Englesby for the plaintiff.

Whether a note was given and received in payment of a subsisting claim, is a question of fact which, in this case, has been found in the plaintiff's favor. Follett et al v. Steele, 16 Vt. 30, and cases cited. Waydell et al. v. Luw, 5 Hill 448.

The plaintiff was only present at the taking of Greeley's deposition under protest, and is not thereby deprived of any of his legal rights respecting it.

The opinion of the court was delivered by

Bennet, J. The amendment of the declaration was properly allowed by the county court.

The amendment allowed was the insertion of a count upon an account stated, and a note of hand is evidence to support such a count; and if the party, in his proof, is confined to the original con

Stephens v. Thompson et al.

sideration, there can be no objection. This was not introducing any new cause of action.

We think the law is too well settled in this state to admit of debate that if a party agrees to take, and does take a separate negotiable note or bill of exchange of one member of a partnership firm in satisfaction of their joint debt, it is a discharge of the other partners, and this is according to the English cases. See Thompson v. Percival, 5 Barn. & Adol. 933, and cases there cited ; and such seemed to be the opinion of the court below, although it must be admitted, that the case cited by counsel from the 5th Hill, is opposed to this view. The question then before us is, did Thompson make out a prima facie case that Franklin's note was taken and received in satisfaction of the partnership account. The fact that he received the note to balance accounts is, prima facie, in discharge of the account.

This is the doctrine of the Massachussetts court, and we have followed the Massachusetts cases. See 4 Vt. 549, and 13 Vt. 452.

The jury should have been told that the taking of the note and giving the receipt, in the manner detailed in the bill of exceptions, made a prima facie case for the defendant Thompson, and, unless rebutted, their verdict should have been for him, and there was error in the court submitting to the jury so many circumstances, to be weighed by them, in connection with other circumstances. This was not giving the facts their legal effect.

The deposition of Greeley was properly excluded. It is well settled, as a rule of practice in the county courts, that a party cannot be required to attend the taking of a deposition in term time. The party must have reasonable time to attend the taking of a deposition, by himself and counsel, which was not given in this case.

Judgment reversed and case remanded.

Shepherd v. Briggs.

ALANSON B. SHEPHERD v. WILLIAM P. BRIGGS.

Award.

Neither mistake or irregularity of conduct on the part of arbitrators, which does

not affect the whole award, is a ground of defense to it, in an action at law.

An award, which is operative as a final and conclusive adjustment of all matters

between the parties, is not vitiated by an order requiring them to execute mutual releases.

Debt ON AN AWARD to recover the sum of $ 48.75, alleged to have been awarded in favor of the plaintiff, against the defendant, upon a submission entered into between them. Plea, nil debet, and notice ; trial by the court, March Term, 1855,-Peck, J., presiding.

The plaintiff read in evidence the submission and award declared upon, both of which were under seal. The defendant then offered to show, by the testimony of one of the arbitrators, that the $ 48,75, awarded to the plaintiff, was made up, in part, of costs in a suit that the plaintiff had commenced against the defendant, which was pending at the time of the hearing before the arbitrators and at the time of the award, which costs the submission provided should be paid by the plaintiff. This testimony, being objected to by the plaintiff, was excluded by the court.

The defendant then offered to show, by the same witness, the same facts, in connection with the fact that the said sum of $ 48.75 was not the true sum which the arbitrators found due, in the conclusion to which they arrived, before and at the time of writing the award; but that the same was increased by including said costs, by mistake and inadvertence on their part, in reducing the award to writing before publishing it, and that the award, as written, was not what was intended by the arbitrators. This, being objected to by the plaintiff, was excluded by the court.

The defendant then offered to show, by the same witness, that the arbitrators made up said $ 48.75, in part, by allowing against the defendant claims without any evidence, and solely on what they heard out doors, from the neighbors, in the absence and without the knowledge or consent of the parties. This was objected to and excluded by the court. The defendant insisted that the award was void for the reason that the arbitrators had no authority to

Shepherd v. Briggs.

award mutual releases. The court decided otherwise, and rendered judgment for the plaintiff for the sum awarded. Exceptions by the defendant.

The submission was of "all and all manner of action and actions, cause and causes of actions, suits, bills, bonds, specialties, judgments, executions, extents, quarrels, controversies, trespasses, damages and demands whatsoever at any time heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed or depending," and the parties agreed “ to well and truly stand to, obey and abide, perform, fulfil and keep the award, order, arbitrament, final end and determination" of the arbitrators named. The award, after providing for the payment of the $48.75, awarded that the parties should, “ in due form of law, execute each to the other of them, or to the others use, general releases, sufficient in law," &c.

W. P. Briggs, pro se.

That courts of law have power to set aside awards of arbitrators for corruption or mistake seems to be settled by the following cases :—3 East 18, Kent v. Elstole, et al; 1 East 276, Lowndes v. Lowndes ; 13 East 357, Wistmore v. Forbes ; .11 Do. 188, Fisher v. Pimbly. They have a summary mode of setting aside awards in English courts of law, without any special pleading. In Virginia a court of law will set aside an award of corruption, &c. : 6 Randolph 529, Graham v. Pierce, 1 U. S. Dig. 219 Sec. 516; and the question has been directly decided in Vt. in Rutland county, in 1823, where the court decided they would set aside an award for the causes which vitiate a verdict, 1 Washburn Dig. 102.

for the plaintiff. The defendant cannot, in a court of law, avoid the award for anything except what appears on the face of the same.

Cald. on Arbit. 407, 408 and note. If he can, he must plead it specially, or, as he has undertaken to do in this case, by notice. What he offered to prove by one of the arbitrators, if true, would go to show that he was corrupt or very partial, and neither can be shown in a court of law ; Cald. on Arbit. 407-8, last ed. The arbitrator was not competent to impeach his own conduct and integrity ; Cald. on

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