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1842

Fox

Hatch.

ORANGE, real estate of a feme covert can legally be extended and set March,

off on execution, in satisfaction of her debts contracted before marriage. It is contended that her legal disabilities are such, that the statute, authorizing the levy of executions upon land, cannot consistently or justly be carried into effect against her. It is urged that she is necessarily deprived of all means of paying the execution, and thereby preventing a levy upon her land ; that she has not authority to agree upon or choose appraisers ; that she cannot redeem her land from the levy, nor procure it set aside, if defective.

That these are serious and important considerations must be admitted ; and it is true that reasons of a character somewhat similar induced this court to decide, in Hunt v. Lee and others, 10 Vt. R. 208, that a person who was non compos mentis was not liable to be assessed by the listers for money on hand or debts due. We do not, however, consider the reasons of that decision so conclusively applicable to this case as to justify us in pronouncing the levy void. The question there involved related only to a single class of assessments under the listing law, which can never be numerous nor of large amount. Past transactions could be affected only to a very limited extent, and existing rights to property could scarcely be at all disturbed, by the decision then made. In these respects, the case now before the court evidently requires a different consideration. The law for setting off land upon execution has existed, with little or no change, from the organization of our state government. It has never contained any exceptions, or special provisions, to meet a case of legal disability in the debtor. It is, therefore, impossible to foresee the consequences of such a determination as the plaintiff asks. We have reason, at least, to suspect that they might be extensive and disastrous. In its operation upon the rights of a married woman, this law merely appropriates her land, at a sworn appraisal, to the payment of her own debts; debts for which she remains holden, notwithstanding her marriage, and, till quite recently, was subject here, as every where else, to be imprisoned. And if by statute her person is now exempted, justice cannot the less require that her property should be made liable.

Every constitutional statute is to be expounded and enforced according to the intention of the legislature. And that

ORANGE, March, 1842.

Fox

Hatch.

intention can only be collected from the terms employed to express it. It is true that an intention, apparently expressed in a general provision, may be qualified and restricted, or even disproved entirely, by another intention specially expressed in the same statute. It is laid down as a rule, that where a general intention is expressed in a statute, and the same act also expresses a particular intention inconipatible with the general one, the particular intention is to be considered in the nature of an exception. Dwarris on statutes, 86.The decision in Hunt v. Lee and others tends to illustrate these rules of construction. It was there considered that the general enactment, authorizing such assessments, was not intended to apply to a case where the party assessed could not, by reason of incapacity, become availed of the benefits secured by certain special provisions in the same statute.

But the means appointed for the legal proof and establishment of a debt are obviously of more intrinsic importance than those which only concern the mode of applying property in payment of it, when duly established. In this view the present case is plainly distinguishable from that just cited. There the just liability of the party to be assessed could not be ascertained in the mode which the statute had prescribed ; whilst, in this instance, the debt was established against the plaintiff by a regular suit and judgment, in which her husband was joined as a co-defendant. And a suit thus instituted and conducted affords to the wife all the protection which common law or statute has ever provided. In the case cited the danger was that there might, in truth, be no just ground of liability ; but this case merely furnishes an occasion to surmise that the land may have gone at an under value. Without deciding what influence this latter consideration should have in the case of a different disability, or even in the case of coverture under other circumstances, we can attach to it no great importance in this instance. The plaintiff's husband, having an estate in the land so long as the marriage relation should continue, was directly interested with her in procuring a judicious and just appraisal. They were both debtors in the execution, and both notified before the levy, in the manner directed by the statute. We must, therefore, infer that her interests had the like protection upon that occasion as in the progress of the previous suit. Upon

ORANGE, the whole, as this proceeding has conformed to the language March, 1842.' of the statute, we think it must be considered as also within its spirit and meaning.

Judgment affirmed. Town of Braintree.

Battles

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Curtis Battles v. TowN OF BRAINTREE.

The selectmen may agree with the owner of land on the amount of dam

ages to be paid to him before opening a road through his land, and draw an order therefor. The owner of the land is not precluded from claiming damages by reason of any parol agreement made between his grantor and the selectmen, waiving damages, if the road has not been opened in the manner pointed

out by statute. A verdict will not be set aside for the insufficiency of a declaration if it

contain the substance of a good declaration and all the facts necessary to support a legal claim.

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This was an action of assumpsit, in which the plaintiff declared as follows:

In a plea of the case for that, at Braintree aforesaid, on the 16th day of April, 1839, the said town, by their agents, • Calvin Randall, John S. Nichols, and Charles Brackett, in consideration that he, the plaintiff, would setiile his the plaintiff's claim against the town, the town should pay him, the plaintiff, the sum of $27.50 ; and the plaintiff avers that he, relying on the promise of the town, by their agents aforesaid, did settle and adjust his claim with the town, by the said agents, and agreed to accept of said sum of money

aforesaid, which said town, by their agents aforesaid, faith"fully undertook and faithfully promised to pay, and as an (acknowledgment of said debt or claim and settlement, the

said town, by their agents aforesaid, gave him, the plaintiff, "an order on the town for the same, in the words following,

to wit, “ Braintree, April 16, 1839. Mr. William Nichols, " town treasurer : Sir, please to pay to Curtis Battles twenty “seven dollars and fifty cents out of the town's money not “otherwise appropriated," signed by the said agents, which Orange,

March, order he received of said agents as selectmen of said town,

1842. and the plaintiff further avers that he has presented said

Battles order to said Nichols, as treasurer, and demanded said sum o .

Town of of money in said order specified, and that the town, by their Braintree.

treasurer, refused and still doth refuse to pay said sum of 'money aforesaid, or any part thereof; which is to the dam'age,' &c.

Plea, non assumpsit. Issue to the country.

On the trial in the county court, the plaintiff read in evidence the selectmen's order on the town treasurer mentioned in the declaration, its execution having been conceded, and he showed that, soon after its date, the order was presented to the treasurer and payment thereof was refused by him.

On the defence the following facts appeared. In June, 1838, one Newell Bass owned a piece of land in Braintree, on which, at his request, the selectmen altered the highway upon the condition that he should claim no damages, to which he consented. The selecimen surveyed this new highway, and it was made by the town the same season, and has been ever since travelled. Early in the spring of 1939, Bass sold and deeded the land to the plaintiff, and told the plaintiff there was a claim on the town for damages to the land in consequence of this new road, which, as part of the bargain, the plaintiff was to have the benefit of. No survey of the road had ever been recorded, nor any certificate of its having been opened, nor had the road been fenced out. In March, 1839, a new board of selectmen was chosen, and the plaintiff applied to them to pay him damages by reason of said road, and he insisted on fifty dollars, and threatened to sue the town, or to fence up the road, unless he was settled with. The selectmen, not knowing of said agreement of Bass with the former selectmen, compromised with the plaintiff, and he agreed to receive, in satisfaction, twenty seven dollars and fifty cents, and for that sum said order was given, and thereupon the plaintiff made his fences on the sides of said new road.

Upon these facts the court instructed the jury that the plaintiff was entitled to a verdict, to which the defendants excepted.

After verdict for the plaintiff, the defendants moved in ar

Orange, rest of judgment, for the insufficiency of the declaration, March,

' which motion was overruled by the court, and to this, also, Battles

the defendants excepted.

1842.

0. Town of Braintree.

E. Weston and L. B. Vilas, for defendants.

I. The defendants contend that the county court erred in the instructions given the jury, and that, from the facts proved, the plaintiff was not entitled to a verdict.

1. Bass, the owner of the land in 1838, having agreed with the selectmen that the road might be altered without damage, and the selectmen having, on the express condition that there should be no damages claimed or paid, surveyed and altered the road, and made it, and opened it, in fact, and the same being travelled by the public, the road then became, to all intents and purposes, a public highway, and the question of damages was forever settled, notwithstanding no record of the alteration was inade.

2. The road in question, when Bass sold to plaintiff, was a public highway as much as it is now, as no record of the alteration has yet been made, and neither Bass nor the plaintiff had then any more right to fence up the road than plaintiff has now.

3. Bass, at the time he sold to plaintiff, clearly had no claim on the town for damages, and the plaintiff having purchased of Bass what he had, and no more, it is as clear that plaintiff had no equitable nor legal claim for damages, whatever claim he might have had on Bass for pretending there was such a claim.

4. The road having been surveyed, altered, made, opened, travelled, and become a public highway, and damages compromised in 1839, the new board of selectmen, appointed in March, 1839, as selectmen, had nothing to do with the question of damages, and what they did was extra official, and could not bind the town.

II. The defendants also contend that the county court erred in overruling the motion in arrest of judgment; and that the plaintiff's declaration is not sufficient to entitle him to a judgment.

There is no allegation that the town was liable to plaintiff.

There is no promise of the town distinctly alleged for any good consideration.

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