Flint v. Whitney. The return on the warrant is conclusive between these parties in this action. Had the defendant been sued for a false return, it would then have been competent for the plaintiff to show the falsity of the return. But the question now arises collaterally, and, in such case, parol evidence is not admissible to contradict the return. Hawks v. Baldwin, Brayt. 85; Carney v. Dennison, 15 Vt. 400. J. B. Hutchinson, S. M. Flint and J. P. Kidder for the plaintiff. The warrant is not sufficient. The defendant is not therein commanded to take either the goods or chattels or the body of the delinquent. It is not in the form prescribed; Comp. Stat. p. 616, form 23. It is bad for want of substance. The same powers are given to highway surveyors that are to constables; Comp. Stat. p. 178, § 21. "For want of goods and chattels whereon to make distress, the constable may take the body of such delinquent." Comp. Stat. p. 464, § 14. The case shows that the plaintiff, at the time of the arrest, "had a horse, sleigh and buffalo robes with him," and the defendant refused to take property, but "wanted his body then." He should have left with the keeper of the jail an attested copy of his warrant, and have certified his doings thereon; Comp. Stat. p. 464, § 15; Henry v. Tilson, 19 Vt. 447. A regular tax-bill and warrant, of themselves, are not a sufficient justification; Collamer v. Drury, 16 Vt. 574; Downing v. Roberts, 21 Vt. 441. The original warrant is not a returnable precept; nor is the return thereon evidence, the officer not being required by law to certify his doings, except upon the jail copies; Hathaway v. Goodrich, 5 Vt. 65; Spear v. Tilson, 24 Vt. 420. The opinion of the court was delivered by REDFIELD, CH. J. I. It seems to us the form of the warrant, in this case, is so essential a departure from the form given in the statute, that it should be regarded as altogether insufficient. It, in truth, omits everything, almost, which is requisite to constitute a valid warrant. It is a mere direction to the officer that if the persons assessed do not pay their tax, "to proceed with him or them as the law directs." If the officer did not follow the statute more Flint v. Whitney. clearly than the form of the warrant does, we could scarcely conjecture what he might not feel justified in doing, under such general words. It reminds one of the form of the aboriginal warrant to arrest one for crimes. "I, Hihondi. Quick you take A. B. Fast you hold him. Straight you bring him before Hihondi”! This is even more specific than the warrant in the present case. Still it has been contrasted with the forms of such process, in modern states, as a significant antithesis. II. We are not satisfied that there was any such refusal to take property, as should make the defendant a trespasser. There was nothing like an offer of property, but, from what passed at the time of the arrest, it is evident the defendant's understanding was that. if he took property, he must wait and go to some distance. For he said, "he wanted his body then." If the plaintiff had been serious in desiring the defendant to accept of property in discharge of the body, he should have made some distinct offer of some specific property, especially as he had abundance with him at the time. The statute is express, that the collector may execute his warrant "wherever he may find the property or body of the delinquent." He was not obliged to delay. III. Chapter 81, § 15, requires the officer, in committing a delinquent for taxes, to leave a copy of his warrant, and "certify his doings thereon in relation to such delinquent." This was not done in the present case. Ia Henry v. Tilson, 19 Vt. 447, this is held indispensable, and that the omission cannot be supplied by proof at the trial that the officer had, in fact, proceeded regularly. And, in a case between the same parties, 17 Vt. 479, it was held that such a warrant, even where there is commitment, is not returnable process, so that the surveyor's certificate, entered upon the warrant at a future day, cannot be treated as in the nature of a return upon process, and so conclusive upon the parties. Judgment affirmed. Pratt v. Battels. EUNICE PRATT v. JASON BATTELS. Trespass. Damages. Deed of husband and wife. Statute of limitations. The plaintiff claimed title to a piece of land upon which a quantity of wood had been cut by a person claiming adversely to her, by whose employment the defendant removed the wood about one hundred rods from the place where it was cut, but left it on the same lot. Held, that if the wood belonged to the plaintiff, so that she could maintain an action of trespass against the defendant for the removal, she could recover only nominal damage, or such actual damages as were occasioned by the removal. In a deed from a husband and wife, executed while our statute required the acknowledgment by the wife to be made by her separately from her husband, it should appear in the certificate of acknowledgment that it was so acknowledged by her. If it does not, the deed will be inoperative and void as against the wife. The possession of land taken under a deed from a husband and wife, without a certificate of such an acknowledgment by the wife, will not be adverse to her rights while she remains under coverture. The statute of limitations will commence running against her only from the death of her husband. TRESPASS for taking a quantity of wood. Plea, the general issue; trial by jury, January Term, 1856,-UNDERWOOD, J., presiding. The plaintiff claimed title to the land on which the wood was cut, under a deed from her father to her before her marriage with Charles Pratt, in 1804, the said Charles having died in 1848. It appeared that in 1807 the said Charles and the plaintiff executed a deed of the premises to a person under whom, as well as under a vendue title, other persons now claimed to hold the premises, but the deed had no certificate of its having been acknowledged by the plaintiff separate and apart from her husband, the certificate being as hereinafter set forth in the brief of the defendant. The defendant offered to prove, by parol, that the deed was, in point of fact acknowledged by the plaintiff apart from her husband; but the plaintiff objected to the testimony, and it was excluded by the court. It also appeared that one of the persons now claiming the premises adversely to the plaintiff sold the wood in question to one Samuel Mann, who caused it to be cut, and, after it was cut, employed the defendant to draw it about one hundred rods from where it then lay, to the side of a railroad, passing through said lot; and the defendant did so draw it, and left it by the side of the railroad, Pratt v. Battels. but upon the same lot upon which it was cut,-and then had no more to do with it, but the said Mann afterwards sold it to one Hawes, who burned it into coal. The defendant requested the court to charge the jury, among other things, that if the plaintiff was entitled to recover at all, she could recover only nominal damages; but the court charged that the plaintiff was entitled to recover the value of the wood drawn by the defendant, at its worth on the stump. Exceptions by the defendant. Other questions than those above suggested were made in reference to the plaintiff's title to the premises, and her right to maintain the present form of action, &c.; but as they were not passed upon by the supreme court, the facts and testimony in reference to them are omitted. J. B. Hutchinson and J. P. Kidder for the defendant. The deed from the plaintiff and her husband is good and valid to convey her title. It is acknowledged in accordance with the provisions of the statute, "that no real estate, of which any feme "covert is or shall be seized, shall pass by deed of herself and "baron, without a previous acknowledgment made by her separately from her husband, before a judge of the supreme court, or or a judge of the county court, or a justice of the peace of the 66 county in which such married woman shall live, or the land so "to be conveyed does lie, that she executed such deed freely and "without any fear or compulsion of her husband; a certificate of "which acknowledgment, taken as aforesaid, shall be endorsed on "the deed, by the judge taking the same, and recorded at large "with the deed. And every alienation of such estates, not ac"knowledged and recorded as aforesaid, is hereby declared to be utterly void." 1 vol. of statutes, compiled in 1808, p. 195, § 12. The acknowledgments are as follows: 66 "STATE OF VERMONT, Orange County, ss. Chelsea, March 24, "1807, personally appeared Charles Pratt, signer and sealer of the foregoing instrument, and acknowledged the same to be his free "act and deed. Before JOSIAH DANA, justice peace." "STATE OF VERMONT, Orange County, ss. Chelsea, March 24, "1807, personally appeared Eunice Pratt, signer and sealer of the Pratt v. Battels. "foregoing instrument, and acknowledged the same to be her vol 66 untary act and deed; and that she executed said deed freely and "without any fear or compulsion of her husband. 46 Before me, JOSIAH DANA, justice peace." The statute is strictly complied with. Her being "separately from her husband," is no part of the acknowledgment; it is a mere fact, which appears from the deed itself. Her acknowledgment is separate from that of her husband. The statute does not read 66 apart from her husband," as does the present statute. Separately means singly. In this case there is a single acknowledgment by each of the grantors. Apart means in a state of separation as to place. The acknowledgment is, "that she executed said deed freely, and without any fear or compulsion of her husband," which must be certified to by the judge taking the same. E. Weston and L. B. Peck for the plaintiff. The plaintiff contends that the deed of Pratt and wife, of March, 1807, is void as to her, for the want of a sufficient certificate of acacknowledgment thereon to comply with the statute of March 6, 1797, then in force. See Slade's compilation of laws of 1825, and former compilations; 1 Tyler's Reports 6, Harman v. Taft et al.; do. 42, Sumner v. Wentworth; 15 Vt. 344, Giddings & Wife et al. v. Smith et al.; 1 Peter's 328, Elliott et al. v. Peirsol et al. The opinion of the court was delivered by ISHAM, J. Several questions have been raised during the argument of this case, some of which, it is unnecessary, at present, to decide. If the plaintiff's title to this land is sufficient to enable her to recover its possession in the action of ejectment, yet, as those under whom the defendant acted were, and for a long time had been in the actual adverse possession of the premises, she cannot sustain an action of trespass on the freehold for cutting the trees from which the wood in question was derived. Whether her title to the land would vest in her a general property in the wood, after it had been severed from the freehold, and draw with it that constructive possession which will enable her to sustain this action, is a question not necessary now to decide. There are obviously |
