Franklin Learned vs. James Bellows, 8 Vt. 79

The opinion of the court was delivered by Redeield J. The motion to dismiss the action was cor-cretion whether the court will dismiss an action sounding in damages merely, when the ad damnum, brings the case within the jurisdiction of the County Court, they should not do this after a reference and report. And they should never do it in any case admitting of doubt, even in the mind of the plaintiff.

If he had any rational ground of believing he could in any event recover more than one hundred dollars, he ought not to be turned over to an inferior jurisdiction, after the case has already been investigated. — Ladd vs. Hill, A Vt. Rep. 164. rectly overruled for two reasons. It being always a matter of dis- In actions of trespass, it is well settled, that the measure of damages, is not limited by the value of the property. The value of the property is usually the actual damage.

But the jury may even in a case of trespass de bonis asportatis, give consequential or exemplary damages, and even vindictive damages ; and had a jury in this case given the plaintiff more than one hundred dollars damages, we know of no rule by which this court could set aside theverdict. — Ladd vs. Hill, 4 Vt. R 164. — Southwick, Cannon & Warren vs. Merrill, 3 Vt. 320. It is next urged that the report should be set aside for the error of the referees in admitting the naked declarations of the plaintiff. This was no doubt incompetent testimony. It had no legal or moral tendency to show the truth.

It only went at most to show that the plaintiff had made contradictory statements. This might result from interest or want of integrity, but it clearly had no possible tendency to mislead the minds of the referees,nor do they intimate that they relied upon it in any sense, in deciding the case. Indeed they could not, if they were rational men. The plaintiff had distinctly admitted a fact against his interest. His showing that at other times he had asserted the fact to be otherwise, would not in any sense qualify his admission.

And although the testimony was improperly admitted, yet as it had no tendency to mislead the referees, and did not mislead them, so far as we can learn, it is no sufficient reason for setting aside the report. It has been repeatedly decided by this court, that the proceedings of referees, are to be presumed tobe correct unless the contrary is made to appear, — Hogaboom vs. Herrick, 4 Vt. 196. — Stevens vs. Pearson, 1 Vt. 503. — Bliss vs. Rollins, 6 Vt. 529.

Since the decision of the cases, establishing the doctrine, that where referees intend to pursue the law, which would tend to a given determination of the case, but misapply it and thus come to a different result, that their report will be set aside, it is becoming common for referees to conclude all their reports with the same general clause, which is found in the report in this case. The cases of Johns vs. Stevens, 3 Vt. 308, and Hasletine vs.

Smith, 535, were not intended to establish the doctrine that the proceedings before referees would be reviewed in the court in the same manner this court will examine the proceedings of the county court on writ of error. They establish this principle, that if referees adopt any rule of action, whether law, equity or arithmetic,and so fail in its application as to come to a different result from that to which the correct application of their own rule of decision should have brought them, and this is clearly shown, then their report will not be accepted.

This is not very different from the well known rule applied to awards, that even at law they will be set aside for evident mistake.

But it is not to be tolerated for a moment that, in the case of every reference in the county court, which is really taking the case from the court and putting it before a tribunal oí the parties’ selection, the court shall on the return of the report sit to adjudge their whole proceedings and determine just how much of the testimony was velevanl and how much was not, and if any part of the proceedings did not conform to the strictest rules of law, on trials to the jury, that the cause must be recommitted. This would es~ tablish literally endless litigation.

And no maxim is of more universal application than Interest Reipublicae sit finis litivm. And if it is desirable it should be any where applied it is to their domestic tribunals. It could in no sense subserve the ends of justice that such a course of litigation to embroil a neighborhood should be established. These domestic tribunals, when they keep by the great principles of right are as likely to do right as any other, but when they attempt a rigid adherence to technical rules/ they are fortunate not to be misled. We cannot see that in this cáse the testimony could have misled the referees.

It was further argued that the receipt, although given while the suit was pending, should bar the action. This could not be pleaded as a technical release, unless the doctrine of Judge Swift were to obtain. 1 Dig. 300. It could only be used as evidence to show an accord and satisfaction of the subject matter of the suit. The writing does not express any such contract. The plaintiff indeed objects that this defence should have been pleaded to the action, and unless specially pleaded could not be urged as a defence before the referees.

This objection is of the same character with the defendant’s objectionto the report on the ground of receiving plaintiff’s declarations to qualify or contradict his admissions. It is not expected that referees will require special pleadings and sit to try formal issues either of law or fact. All that is expected is that the suit, will be tried on the merits, and no motion in arrest would be entertained after report, for any defect in the pleadings, or even for the total want of all plea. ', But we cannot doubt that the parlies did not intend this receipt should bar this suit.

The amount in controversy, the fact that the defendant was only nominally interested, and that the ultimate liability rested on the creditor, and that no allusion is made to any suit whatever in the receipt, fully show such could not have been the plaintiff’s intention. And in these general releases courts have been very liberal in examining all the circumstances of the parties and the manner of giving them in order to come to the intention of the parties, I Swifts Dig. 300, 301 14 — Petersdorff '203 and 4 and notes. Morris vs. Philpot, 2 Modern 279 Knight vs.

Cole 1 Lev. 273 —The word “demands” is indeed very general, but has no natural fitness to express a matter now in suit, and when followed by the words “notes and accounts” every one must conclude it was used in its restricted signification,' as in common parlance, synonymous with notes and accounts. A merchant or mechanic speaks of his “demands”, he in tends toexpress only “notes and accounts.” A release of all actions does not include causes of action (14 Rt. 203) Release of all “actions and demands” does not release a legacy. And a general release will not effect trust obligations, Cole. vs.

Knight 2 Mod. 279, 1 Lev. 235. We are well satisfied this receipt should not be construed to bar this action. Judgment of County Court affirmed.