Volume 44 — Vermont Reports

Replevin for two barrels of whisky. Plea, the general issue, and notice of special matter in defense. Trial by jury, March term, 1871, Peck, J., presiding.

Assumpsit for a subscription of $300. Plea, tbe general issue. Trial by jury, September term, 1870, Steele, J., presiding. The plaintiff offered in evidence a subscription paper, dated August 30, 1865, signed by defendant.

Assumpsit. Plea, tbe general issue. Trial by Court, at the September term,1870, Steele, J., presiding, on a case stated, and judgment pro forma for the plaintiff. Exceptions by the defendants. Augustus H. Collins, the plaintiff’s intestate, enlisted into the United States service on the 14th day of September, 1861, to the credit of the town of Stowe, for three years, as a private in company G in the 2d regiment Vermont volunteers.

Action on the case. Plea, the general issue, and trial by jury, March term, 1871, Pboe, J., presiding. The plaintiff claimed that the defendant agreed to present his, the plaintiff’s, claim against the estate of Erasmus Plympton, and have the same allowed as charged by the plaintiff. The defendant was one of the executors of the will of the said Erasmus Plympton.

<p> Pleading. Declaration. Amendment. </p> <p>An amendment of a declaration cannot be granted which changes the form of action, or introduces new counts for a new cause of action not contained in tho original declaration.</p> <p>A new declaration filed under the rule of court permitting new declarations to bo filed, is subject to tho same rule, as far as introducing a new cause of action is concerned, as though filed by leave of court. #</p> <p>Whore in assumpsit before a justice of the peace tho plaintiff’s claim as described in the declaration in the writ was for goods sold and delivered, and the case was appealed, it was held that ho could not recover under a new declaration containing the common counts in assumpsit filed in the county court, for work and labor as well as for goods sold and delivered.</p>

<p> Deposition. Witnesses. Evidence. Cross-Examination. Statute. </p> <p>Tho omission of the word “ appeared ” in the magistrate’s certificate of the oath of the deponent, does not render tho deposition inadmissible.</p> <p>The statute, Ch. 30, See. 29, Gen. Sts., authorizing “the County Court, in its discretion, on motion, to order the witnesses of the adverse party oxamined separately and apart from each other,” does not include parties who may be witnesses.</p> <p>Whore, in trespass on the caso for wrongfully running against the plaintiff in the highway, the defendants pleaded the “general issue,” and claimod, on trial, that the injury \yas caused by a certain horse becoming frightened, it was held proper to ask them, on cross-examination, as to their conduct from tlio start in another town 5 whether they there drank intoxicating liquor, slept much the night before, made loud noises, drove fast; and tlio fact that in their answers they went further than the question called for, and statod facts which would not have been a proper subject of inquiry, held not available in the defendant’s behalf.</p>

<p>Action on the case. Plea, not guilty, and trial by jury, and verdict for plaintiff, December term, 1870, Ross, J., presiding.</p> <p>The plaintiff produced evidence tending to prove that in the winter or spring of 1870 ho employed the defendant to blast rocks from a ledge which was from twelve to twenty-five feet from a house owned by the plaintiff in the village of St. Johnsbury ; that the defendant knew the premises, and told the plaintiff that he thought he could do the work without injury to the house; that no price was agreed upon for the service; that the defendant entered upon the service, and made several blasts doing but slight injuries to the house, such only as breaking a few lights of glass; that he, the plaintiff, was entirely unacquainted with the business, and that the same was conducted by the defendant as he saw fit, and that at last the defendant made a large seam blast, throwing-out several cords of stone, some of which were estimated to weigh four tons, and throwing several large stone upon the roof and gable end of the house, breaking through the roof and carrying away most of the gable end, and otherwise largely damaging the house ; that the defendant had told that he used a keg and a half of powder in making the blast; that the defendant put powder in the seam several different times before he could get fire to it; that he talked to his help that it would be a large blast, and that his help went further away when this blast was touched off than they were wont to do.</p> <p>The plaintiff was allowed, against the defendant’s objection and exception, to give evidence of persons who were skilled in making blasts near dwellings, tending to show that the defendant was wanting in skill and prudence in making said blast. There was no evidence that the defendant acted in bad faith, or maliciously, in making said blast.</p> <p>The defendant introduced testimony tending to show that he had never been engaged in blasting except from July or August, 1869, and that this was known to the plaintiff; that no mention was made of there being any danger to the house from blasting, wheu the plaintiff engaged him; but the plaintiff then told him he had another man blasting from the ledge who failed to get out rocks in sufficient quantities, and that the plaintiff engaged him because he used a larger drill and thought ho could get out rocks faster ; that a few days before making tho blast complained of, he made a blast which threw out a large quantity of rocks, and injured the house slightly by breaking a few lights of glass and injuring the clapboards somewhat, at which the plaintiff expressed himself gratified, and said he expected the house would receive more injury than that, but rocks were what he wanted, and also that plaintiff told the other man, when blasting there before the defendant, that he expected the house would be injured some.</p> <p>The defendant’s testimony tended to show that in putting in the blast complained of, he drilled into the ledge, which was sound, some two to two and a half feet, and put in two or three small charges of powder, and started a seam in the ledge four or five feet each way from the hole, and running down ten feet or more into the ledge; that this piece started off was from two to two and a half feet in thickness; that then he put a charge of eight or ton pounds of powder into the seam, and tamped sand down upon the powder, and undertook to fire it, but failed; that ho then made other trials, but failed to. throw out the rock, and only widened the seam at the surface ; that then he put in more powder and undertook to fire it, but did not succeed in reaching the powder with the fuse; that he then called upon the plaintiff to furnish him money to buy more powder, but the plaintiff had not any money, and told the defendant to get the powder and he would pay him for it; that the defendant then purchased a keg of powder, twenty-five pounds, and used about half of it in the seam, but put no tamping or sand above the powder ; that the plaintiff was employed in drawing away the stones, and knew that the defendant had difficulty in getting the fuse to the powder, and procured for the defendant at his request a wire' to run the fuse further into the seam, so as to be sure to reach the powder.</p> <p>The defendant admitted that the plaintiff gave no directions about the amount of powder to be used, and that he did not inform the plaintiff how much he had put into the seam. The defendant gave notice to the people in the house that he was about to make a blast, as he usually did. The plaintiff was away with a load of stone when the blast was made. The defendant then fired the blast and did the damage complained of.</p> <p>The defendant testified that inasmuch as he used no tamping or sand on the powder, he expected the powder would only burn out in the seam, and widen the seam, and possibly throw the rock out of its place in the ledge.</p> <p>The defendant further testified that he had called upon the plaintiff to furnish materials to place over the ledge to keep the rocks from flying upon the house, but the plaintiff furnished nothing but a car door, which he admitted he did not use on this occasion, for the reason that the surface of the ledge was so perpendicular that he could not make it remain on the ledge at the point where he made the blast.</p> <p>The defendant requested the court to charge the jury :</p> <p>1st. That if the plaintiff understood and was informed that there was danger to his house from blasting from said ledge, and sLill directed the defendant to blast, he cannot recover,</p> <p>2d. If they should find that the plaintiff knew the defendant was making a seam blast and putting powder in the seam, and did not object to the same, he cannot recover.</p> <p>8d. That the plaintiff was not entitled to recover under the testimony in the case.</p> <p>The court declined so to instruct the jury, but told them that the defendant was bound to bring to the. performance of his service that degree of skill, care and prudence which a person of common skill, care and prudence would be expected to exercise in the same employment under like circumstances, and if the defendant used a less degree of skill, care and prudence than this, he was guilty of negligence ; that it was for the plaintiff to establish by a fair balance of testimony that the defendant used less skill, care and prudence than would be expected to be exercised by a person of common skill, care and prudence in the same employment under like circumstances ; that no exact rule' could be laid down defining what would constitute negligence in every case, and each case must be governed very much by its own circumstances ; that in this case it was not contended that the defendant would have been guilty of negligence in making the blast in the manner he did, if there had been no house in immediate proximity to the ledge.</p> <p>The court mentioned the cases which had been remarked upon by the counsel in their arguments, as illustrating the principle that each case must be governed by its own circumstances, and remarked that if the peisons injured in those cases had been adults of full ago and discretion, they might have merited a different consideration from the jury and court.</p> <p>The court instructed the jury in regard to the different classes of evidence they should consider in determining whether the plaintiff had established that the defendant had been negligent in malting the blast, under the foregoing instructions as to what would constitute negligence, in a manner which was not excepted to by the defendant.</p> <p>To the refusal of the court to charge as requested, and to so much of the charge as is detailed, the defendant excepted.</p> <p>maintained that this case was governed by the doctrine established in Kelsey v. Glover, 15 Yt., 708 ; Hunt wife v. Pownal, 9 Yt., 411; Hyde v. Jamaica;, 27 Yt., 243 ; Humphrey v. Douglas, 10 Yt., 71; Robinson v. Gone, 22 Yt., 213,</p> <p>The defendant’s negligence is the gist of the action, and was the proximate cause of the injury. Shear, and Ned. on Neg., § 10, and note. There was a duty resting upon the defendant. Shear, and Red. on Neg., §§ 12 and 13; Lister v. Pittsford, 7 Vt., 158. Care required according to circumstances. Shear, and Rod. on Neg., § 23 ; Gayzer v. Taylor, 10 Gray, 274; Loomis v. Terry, 17 Wend., 496 ; Vinton v. Schwab, 32 Vt., 612. ; 2d Hill, on Torts, 463 ; Hill v. New Haven, 37 Vt., 501. The .burden of proof to show that the plaintiff was negligent is upon the defendant. Gough v. Bryan, 2 Mess, and W., 770 ; Bridge v. Gr. June. B. R. Co., 3 do. 244. What is ordinary care on the plaintiff’s part depends upon the facts of each case. Robinson v. Gone, 22 Vt., 213, and cases cited. The defendant is not excused even if the plaintiff knew there was some danger. Shear, and Red. on Neg., §31, u. (2). Unless the plaintiff contributed to the accident by his own negligence and willful wrong. Noyes v. Mor-ristown, 1 Vt., 353.</p>

Book account. The auditor reported as follows : “ The plaintiffs are residents of Lancaster, N. EL, and engaged in the manufacture and sale of mills and machinery. The defendant resides in St. Johnsbury, and is engaged in the manufacture of lumber, and in October, 1866, called at the plaintiffs’ place of business to talk with them about putting in a water-wheel for him in a small mill he had purchased the previous summer in the town of Concord, ten or twelve miles distant.

Assumpsit. Plea, the general issue, and trial by jury, December term, 1870, Peck, J., presiding.

Trespass q. o. f. The defendants pleaded the general issue, plea in bar, and notice. Held: as a matter of law, that Mrs. Drew made herself a trespasser db initio in carrying away the grass and giving it to the horse, and that the rule de minimis non curat lex did not apply, and instructed the jury that they must therefore return a verdict for the plaintiff for some sum, such damages as they thought the plaintiff sustained,…

General assumpsit, but agreed to be treated as though it was an action of assumpsit upon a note dated December 12, 1856, for 166.24,- payable to the intestate or order, on demand, with the interest annually. Pleas, 1st, the general issue’; 2d, that the cause of action did not accrue within six years from the commencement of the action; 3d, payment.

Assumpsit for use of a tenement in Peacbam. Held: and charged the jury that if they were satisfied that the facts were as the plaintiff’s evidence tended to show, the plaintiff was entitled to the use and enjoyment of the premises from the time of the death of her husband, and that if the defendant had had the use and enjoyment of them, the plaintiff was entitled to recover for the…

Action on the case against the defendant, as sheriff of Caledonia county, for the default of his deputy, C. E. Weeks. Plea, general issue. Trial by the court, December term, 1869, Steele, J., presiding.

Assumpsit on a promissory note, dated July 22d, 1867, for eighty-five dollars, payable to bearer in six months from date, with interest. Plea, the general issue, and trial by jury, December term, 1870, Ross, J., presiding.

Trover, with special count on the case. Plea, general issue, and. trial by court, October term, 1870. PecK, J., presiding. On the 18th day of July, 1863, the defendant leased certain premises of Harvey and Eliza Beecher for the term of five years, as by the terms of a written lease.

<p>Teespass, with counts in case. Plea, the general issue, and trial by jury, February terra, 1871, Redfield, J., presiding.</p> <p>The plaintiff proved that he was the owner, and has been in possession of the promises described in the declaration, since April 1st, 1862, and that the defendant several times passed over plaintiff’s land, and the evidence tended to show that the defendant left the gates open, and the bars down, through which cattle passed and injured the plaintiff’s crops.</p> <p>The defendant showed that on the 15th of June, 1847, the selectmen of the town of Newport surveyed and established a pent road, with gates, from the premises now occupied by the defendant across the plaintiff’s farm to the highway, at a point some twenty rods north, or west, of the plaintiff’s house, and at this intersection a gate was established.</p> <p>It appeared that, for many years, the travel over the pent road diverged from the survey at the westerly end, and came into the highway near the plaintiff’s house, and that portion of the surveyed road from which the travel diverged had been plowed and for many years used as the rest of the farm, and was incapable of being used for a road. The exact time when the travel was thus first diverted weds not certain. The most certain evidence was from the plaintiff’s witness and grantor, Arnold Prouty, who testi•fied that he bought the plaintiff’s farm in November, 1855, and that the travel then diverged as it does now; that the old house, in which the occupants of the plaintiff’s farm formerly lived, stood on the pent road, as surveyed ; that the present house was built about seventeen or eighteen years ago ; that soon after the present house was built the owner of the plaintiff’s farm, ( Clark,) and the owners of the other farms through which the pent road passed, by mutual concurrence, worked the present traveled road to the highway near the plaintiff’s house, and abandoned that section of the surveyed road.</p> <p>The court charged the jury, among other things not excepted to, that if the plaintiff’s grantor, and the other owners of the land through which the pent road passed, worked this section of new road, as a substitute for the surveyed road, and all travel passed over the substituted section as a portion of the pent road, and as a matter of right, for a period of fifteen years continuously before the trespass complained of, that travelers would acquire the right to pass and repass over the substituted section as they had been accustomed to.</p> <p>The court further instructed the jury that if the road was substituted and worked by the proprietors, as indicated in the testimony of Arnold Prouty, and the section of the surveyed road, thus abandoned, was fenced up and plowed, so that it could not be traveled, by the action and consent of the plaintiff’s grantor and the other proprietors, and all travel continued, by necessity, to take the substituted road, even if less than fifteen years, for instance twelve years, the traveler would have the right to use the substituted road as a part of the pent road, and as he had been accustomed to do. To this charge of the court, as above detailed, the plaintiff excepted.</p> <p>The writ was dated and issued July 18th, 1867, and served on the defendant October 16th, 1867. The plaintiff claimed that he was entitled to recover damages up to the time of service of the writ, but the court ruled otherwise, and instructed the jury that he could only recover damages up to the time the writ was issued, to which the plaintiff also excepted. Verdict for the defendant. To the charge of the court in the particulars above named the plaintiff excepted.</p> <p>cited, upon the point as to the plaintiff’s right to the substituted portion of the way, Green. Ev., vol. 2, p. 677, § 681; ib., p. 596, § 538 ; Bailey v. Fairfield, Brayt. It., 128 ; Page v. Weathers field, 18 Vt., 424 ; Blodgett v. Boyalton, 14 Vt., 288; Gen. Sts., ch. 24, §§ 1 and 74. And that the plaintiff was entitled to recover for any damage proved prior to the service of the writ, Allen v. Mann, 1 D. Chip., 94; Bowner v. Garland, 21 Vt., 362 ; Hutchins v. Park-hurst, 1 Aik., 258; Green. Ev., vol. 2, p. 670, §624.</p> <p>cited, to the first of the above points, Rugby Qharity v. Merryweather, 11 East, 375, n. ; State v. Wilkinson, 2 Vt., 480 ; Pomeroy v. Mills, 8 Vt., 279 ; Abbott v. Mills, ib., 521; State v. Oatlin, ib., 530 ; Ang. oil Highways, § 142 and cases cited ; Morse v. Ramo, 32 Vt., 600 ; Wright v. Tukey, 3 Cush., 290 ; Farmon y. Pratt, 8 Pick., 339 ; Russell v. Jackson, 2 Pick., 574. As to the second point, see Day v. Lamb, 7 Vt., 426 ; Hall et al. y. Peck et al., 10 Vt., 474; McDaniels y. Reed, 17 Vt., 674; 36 Maine, 440 ; Hogan y. •Cuyler, 8 Cowan, 203 ; Ford v. Phillips, 1 Pick., 202.</p>

<p>Trustee PROCESS. The National Bank of Newbury and the First National Bank of St. Johnsbury severally appeared as claimants. A commissioner was appointed to take the disclosure of the trustee, and to hear and examine testimony, &c., in accordance with the General Statutes, chapter 34. The commissioner made his report at September term, 1870, and thereupon the court, Peck, J., presiding, pro forma, rendered judgment that the trustee is chargeable, to which said banks, as such claimants, were allowed to except, and their exceptions were allowed.</p> <p>The commissioner reported as follows :</p> <p>“ That on the 25th of January, 1867, the trustee gave the principal debtor four notes for nine hundred and sixty dollars each; two of which were paid before the service (August 14th, 1868,) of this process. The two remaining ones are still unpaid, except as to eighty dollars, which was paid June 16th, 1868. One of the two last mentioned notes was due March 1st, 1870, and the other one March 1st, 1871, and both with interest annually, after March 1st, 1867. I therefore find due on each of those notes the sum of eleven hundred and thirty-four dollars and twenty-five cents (11,184.25), both amounting to §2,268.50, which sum I find in the hands of the trustee, for which he should be held liable to the plaintiff unless the court shall decide that the same belongs to the claimants upon the following facts. I have computed interest up to the third Tuesday of September, 1870.</p> <p>On the 30th day of September, 1867, the defendant borrowed a large sum of money of William H. Cummings, of Lisbon, N. JEL, and turned these two notes out to him as collateral security for the same, and they remained in his hands until transferred to the claimants as hereinafter detailed.</p> <p>At or near the time the notes were transferred to Cummings, he requested the principal debtor (Bowker) to notify the trustee that the notes had been thus transferred. About the first of October, 1867, the trustee went to Lisbon village, N. IT., (where the s^id Cummings and Bowker resided,) with five or six hundred dollars to pay on the notes, and Bowker then told him he had put, or made arrangements to put, the notes into a bank as collateral security, but did not tell him what bank, and no money was paid at that time. Again, on the 16th of June, 1868, the trustee went to Lisbon village with §80 to pay on the notes. Bowker then told him he had. not the notes by him, but would get them in a few moments. He then stepped out into the village and soon returned and told the trustee he could not get them. All that appeared to sliow wliat the trustee understood by this is Ms statement in his disclosure hereto annexed, which was as follows: “ I understood that he owned the notes, but that they were with another man.” The trustee paid the $80 and took Bowker’s receipt for it. A day or two after November 9th, 1868, the trusteed received a letter from Cummings, which is hereto annexed and marked “ B.” Also afterwards, one dated November 19th, 1868, a copy of which I annex and mark “ C,” to which the trustee replied by letter dated November 24th, 1868, a copy of which is annexed and marked “ D.” The trustee never received any no'ice from Cummings that the notes had been transferred to him ex» pt what I have detailed.</p> <p>Some time before the 16th day of September, 1869, and after he had heard that this trustee process was pending, Cummings not knowing whether he could prove notice to the trustee of the transfer of the notes to him, and wanting to raise money on them, he made some investigation to see what the effect would be to nego-tia.e the notes to a bank, and on consulting counsel he concluded that if he failed in his proof of notice, the notes would be good in the hands of a, bank, and on said 16th day of September, 1869, he got one note discounted at the bank of one of the claimants, viz : the National Bank at Newbury, Yt. The note was discounted in the ordinary manner of doing business at that bank. Cummings received for the note $1,113.71, and endorsed the same, waiving demand and notice. The bank had no ki ovledge of the existence of this trustee process, nor did Cummings inform them of it, but did say to the cashier that he had better notify the trustee that the note had been transferred to the bank, which he did by letter dated September 16th, 1869.</p> <p>On the first day August, 1870, Cummings transferred the other of said two notes to the First National Bank of St. Joh usbury, Yt., the other claimant, for $1,154.58. It is agreed by the parties that the character of the transfer of this note is the same as that of the other note to the Bank of Newbury. Soon after the transfer of the note to the First National Bank of Su. Johnsbury, the trustee received from them notice when the note would fall due.</p> <p>If the court, from the foregoing facts, decide that the claimants are entitled to the funds in the hands of the trustee, then I find they are each entitled to the sum of $1,134.25.”</p> <p>The letter from W. EL Cummings to said Webster, and referred to in the report, marked “ B,” contained a notice that he, Cummings, held the notes, which were described in the letter ; and the letter stated that he had heard that Webster had been trus-teed by a creditor of Mr. Bowker. The letter was dated November 9,1868.</p> <p>The letter marked “ C ” was in reference to said notes, and the trustee process, and as to what the law was as to notice, &c. The letter marked “ D ” was Mr. Webster’s reply to Mr. Cummings’s letter, but contained nothing material to be here stated.</p> <p>maintained that a fair and reasonable construction of the proviso to section 4T, pages 812, 813, Gen. Stats., indicates that only such negotiable paper is exempted from attachment as has been assigned, negotiated and transferred before the service of the writ. The phrase, “ shall become exempt from attachment by the trustee process,” found in the proviso, when taken in connection with the preceding portion of the same section, imports an attachment made subsequent to the sale of a demand to a bank. This is the more just and equitable construction. It harmonizes more completely with the rest of that section, and also of section two of the same chapter. It is more pointedly sustained than any other view, by the language of these sections. This interpretation of the law affords all the protection to the banks that they deserve. Any other view opens wide the door to fraud and knavery. He cited, as to the rules of construction of statutes, 2 Rol., 127; Archer v. Bokenham, 11 Mod., 161; 1 Institutes, 381; Dwarris on Statutes, 80, 81; Reniger v. Fogano, Plow., 13 ; Rex v. Lamb, 5 T. R., 76; Rex v. Neale, 8 T. R., 24Í.</p> <p>cited Story on Prom. Notes, § 178, and cases cited in note 3 ; Drake on Attachment, §§ 223, 58, 584, 585 ; Hutchins v. Hawley, 9 Yt., 585 ; Burke v. Whitcomb, 13 Yt., 421; Weller v. Weller, 18 Yt., 55 — see page 61; Gen. Stats., ch. 80, §§ 5, 6 ; Britton v. Preston, 9 Vt., 263.</p> <p>The history of the liability of negotiable promissory notes to be taken by the trustee process is, that under the statute of 1797 it was held that because, by the proviso of that law, it was pro-yided that the maker of a note might have all such defenses against an endorsee as he could in the hands of the original .payee, therefore such note could be held by the trustee process- until the note should be negotiated and actual notice given. But after the act of 1836, which repealed the proviso, then it was held that such a note was not liable to the trustee process. Hinsdill v. Salford, 11 Vt., 309 ; Little v. Hale, 11 Vt., 482; Ayott v. Smith, 4 Vt., 532.</p> <p>By the act of 1841 the legislature made negotiable promissory notes liable to the trustee process unless the note should be negotiated and notice given to the maker or endorser before the service of the trustee process on him. Then, by the act of November 3,1852, it was provided that “ any negotiable paper which shall be actually assigned, negotiated, or transferred before it becomes due shall be exempt from attachment by the trustee process, if such paper ghall be discounted at any bank in this State.” Under this act, in the case, Banlc v. Drury, 35 Vt., 469, it was held that the note must be discounted by the bank, to come within the proviso, and that to take it as collateral security would not be sufficient. The Gen. Stat., ch. 34, § 47, alters this, so that it is now sufficient that the note should be actually assigned, negotiated, and transferred to any bank in this j3tate before it becomes due, in order to exempt it from the operation of the trustee process, leaving out the word “ discounted,” which was in the act of 1852.</p> <p>The object of the proviso to the act now in force is to relieve the commercial community from the “ clog upon the negotiability of paper,” so far as the banks were concerned. It provides that “ any negotiable paper, which shall be actually assigned, negotiated, and transferred to any bank in this State before it becomes due, shall become exempt from attachment by the trustee process.” It would be no great favor to a bank to exempt the bank from the necessity of giving notice to the maker of the note, in order to hold it from future process,' and to say that it. shall be held on every process that was served before it was negotiated to the bank. The mere wilting and mailing a notice is of no consequence to a bank, but the thing that is of consequence is to know that all negotiable paper that they take in the way of business before it becomes due, will indubitably be good in their hands. This, and nothing else, will remove the “ clog upon the negotiability of paper.”</p> <p>There is no doubt that as the statute literally reads, these claimants are entitled to hold the notes. The banks took and discounted the notes before they were due. And there is this further fact in their favor — that Cummings, who passed the notes to the claimants, actually had the title to them before the service of the trustee process. When they were discounted by the banks it made their title good without notice, because when negotiated to a bank no notice is required. If it should be said that Cummings procured these notes to be discounted with the intention to avoid the trustee process, our answer is that he had a right to do so, and such intention would not alter the case. Wood v. Bod-well, 12 Pick., 268; Robinson vr Mall, 8 Met., 801; Barnard v. Gfraves, 16 Pick., 41. ,</p>

Bill in ChanobRT. The substantial averments of the bill are stated in tlie opinion of the court. The cause stood for hearing on bill, answer, replication, and proof, at the March term, 1871, when the court, Ross, Chancellor, pro forma dismissed the bill with costs, from which decree the orator appealed.

<p> Soldier's Bounty. Drafted Men. Contract. Past Consideration. </p> <p>A contraot to pay a soldier a bounty, completed by a vote of the town, cannot be discharged by a subsequent vote rescinding the former one.</p> <p>The service and credit of a drafted man in reduction of a town quota, is sufficient consideration to support a promise to pay him a bounty in a subsequent vote of the town.</p>

Assumpsit for a town bounty. Plea, tbe general issue and trial by jury, December term, 1870, Redpield, J., presiding.

Assumpsit. Pleas : the general issue, payment, and statute of limitations. Trial by jury, at the June term, Caledonia county, 1870, Steele, J., presiding. Verdict for the plaintiff.

Bill in Chancery. The bill set forth that on the 9th day of September, 1851, Samuel R. Hooper bid off, at a tax sale, lot No. 70, in the third division of lots in Groton ; that the said Hooper, on or about the 15th day of September, 1851, entered upon said lot, claiming to own the same, and cut timber on said lot up to the 8th day of March, 1853, when he received a collector’s deed of the same ; that said Hooper continued in the exclusive possession of the same from the date…

<p>Assumpsit, to recover a soldier’s bounty, three hundred'* dollars. Plea, the general issue. Trial by jury, August term, Washington county, 1871, Steele, J., presiding.</p> <p>The plaintiff introduced record of vote of Watei’bury of November 30th, 1863, which was as follows: “ Whereas application in writing has been made to us by more than six freeholders of the town to warn a town-meeting to see what course the town will take to fill the quota of men required of the town of Waterbury under the last two calls of the general government for soldiers : Therefore all the legal voters in town-meeting of the town of Waterbury are hereby warned to meet at the hall in the Methodist chapel, at the center of said town, on the 30th day of November, A. D. 1863, at one o’clock in the afternoon, to act on the following business</p> <p>“ 2d. To see if the town will pay any additional bounty to volunteers from said town, and if any,‘how much, or what other action they will take on the subject.”</p> <p>“ At Waterbury, November 30th, 1863, at one o’clock, p. m., the meeting opened, and, '* * * * * Voted to pay each volunteer from this town a bounty of $800 when mustered into the United States service.”</p> <p>The plaintiff was a witness in his own behalf, and his testimony was in substance to the effect that the plaintiff was a resident of Waterbury at the time of his first enlistment, and until after his final discharge in 1865: that on the 5th day of January, 1864, the plaintiff re-enlisted for throe years, in the State of Louisiana, where his regiment then was. That he was informed that Waterbury would pay a bounty of $300 for soldiers, and he enlisted with the expectation of receiving said sum, to the credit of Waterbury, on .the 5th day of January, 1864. That in a day or two the plaintiff’s captain wrote a letter to the selectmen of Waterbury, informing them of the plaintiff’s re-enlistment to the credit of the town of Waterbury. The plaintiff’s evidence tended to show that the selectmen received such notice by the middle of January, 1864. The plaintiff put in General Order No. 2, dated Adjutant and Inspector General’s office of Vermont, November 2d, 1863, which shows that there was due from Waterbury, on said November 2d, 1863, twenty-five men under the call of the President of October 17th, 1863, and eleven men under the call of July, 1863, which was the call in which the draft took place. (The two last calls at date of vote.) The Assistant Adjutant General of Vermont was used as witness, together with the books and records of the Adjutant General’s office, from which it appeared that the quota of Waterbury under the call of October 17th, 1863, was filled by the 31st day of December, 1863, and that the quota for eleven men deficiency, under the draft or call of July, 1863, was filled by the 27th day of February, 1864.</p> <p>The assistant adjutant general testified that the records in the adjutant general’s office indicated that the plaintiff enlisted and was mustered in on the 5th day of January, 1864, to the credit of Waterbury. That information of his re-enlistment was not received at the adjutant and inspector general’s office of this state until the middle of the month of April, 1864; and that the plaintiff applied on the quota of Waterbury, under the call of July 18, 1864. He also testified that the original muster-in roll, on file, from which the adjutant general’s record is, or should be, made up, showed that the plaintiff was mustered on the 15th of March, 1864, “ as of the 5th of January, 1864.” The plaintiff also put in special order No. 8, dated January 23, 1864, from the adjutant and inspector general’s office.</p> <p>The court then intimated that if it was a conceded fact that plaintiff’s muster-in did not occur until March 15th, 1864, a verdict would be directed for the defendants. The muster-in roll was sent for and produced in evidence, and it appearing by the certificate that the muster-in occurred March 15,1864, the counsel for the plaintiff informed the court that they did not wish to go to the jury on any question as to the date of the muster, and should not claim that the certificate of the mustering officer as to the date of the muster-in upon the roll was incorrect.</p> <p>The court thereupon ordered a verdict for the defendants, to which the plaintiff excepted.</p>

<p>Aotion on the Case, to recover damages by reason of the insufficiency of the highway in Lowell. Plea, the general issue. Trial by jury, February term, 1871, Orleans county, Redfield, J., presiding.</p> <p>The plaintiff received the injury complained of while driving a span of horses and buggy wagon from his residence, in Albany, over the highlands, to the village of Lowell, a distance of about eight miles, on Sunday. His business and purpose was to visit his two boys, who were then at the residence of Mr. Blaisdell, whose wife was the aunt of said boys and sister of plaintiff’s deceased wife. The elder boy was in the employ of said Blaisdell, and clerk in his store, and the younger was on a visit to his aunt and brother. The plaintiff had no wife living. The defendant requested the court to charge the jury, that upon the facts of the case, the statute (§ 3, ch. 93, Gen. Stats.) was a bar to the plaintiff’s recovery, but the court, pro forma, ruled otherwise, and instructed the jury that if the plaintiff established his right to recover in all other respects, the statute would be no defense. To this ruling, and no other, the defendant excepted. Verdict' for the plaintiff.</p> <p>cited 4 Cush., 243 ; Gommon-wealth v. Knox, 6 Mass., 76 ; Pearce v. Atwood, 13 Mass., 354 ; 2d vol. of Parsons on Contracts, ch. 3, p. 262, a. b. and c., 4th ed. ; Hooper v. Hdwards, 18 Ala., cited in 2d Parsons on Contracts, 262; Logan v. Matheivs, 6 Barr., 417 ; Whitcomb v. Gleason, 35 Vt., 297.</p> <p>cited Hindcley v. Penobscot, 42 Maine, 89 ; Bryant v. Biddeford, 39 ib., 193 ; Jones v. Andover, 10 Allen, 18 ; Lyon v. Strong, 6 Vt., 219; 1 Hilliard on Torts, 161, 162 ; Bosworth v. Stvansey, 10 Met., 363 ; Gradeen v. Bangor, SI Maine,-423.</p>

This was an action on the case for a malicious prosecution, as by the declaration stated, and was tried by tho jury upon the general issue, at the September term, Chittenden county, 1870, Pieupoint, Oh. J., presiding. Verdict for the plaintiff, $4,500. The plaintiff introduced a certified copy of the record of the complaint, warrant and proceedings before John B. Hollenbeck, Esq., justice of the peace, in case State v. William S. Briggs, which is made part of the case.

Action on the case, for slander. The declaration charged that the defendant, in the presence of others, accused the plaintiff of perjury. Plea, the general issue, and special pleas in bar, alleging, in justification, the truth of the words spoken. There was no replication to the pleas filed, but after they, were read it was said by counsel that the pleas were to be treated as traversed. Trial by jury, March term, 1871, Washington county, Peok, J., presiding.

Action on the Case for obstructing the plaintiff’s way. Ploa, general issue and trial by jury, Windham county, September term, 1870, Barrett, J., presiding.

<p> Soldier’s Bounty. Town Meeting. 'Warning. </p> <p>A voto “to instruct the selectmen to pay three hundred and twenty-five dollars for each volunteer to fill our quota,” under a warning “to see if the town will authorize their selectmen to pay a bounty to volunteers to fill the quota of Cabot,” — is construed to place the business of procuring and contracting with volunteers in the hands of the selectmen, and a party claiming to recover under said vote, must show a contract assented to by at least two of the selectmen.</p> <p>The language of this vote, when construed in connection with the article in the warning and the then existing circumstances in relation to the quota of the town, is not ambiguous, or applicable to future calls.</p>

Bill op interpleader. The case was heard upon bill, answers and testimony, at the April term, 1871. Pierpoint, .Chancellor. On the hearing it was pro forma adjudged that the defendant, Milo C. Stewart, is entitled to receive the reward of 1500 mentioned in the orators’ bill; and it was ordered and decreed that the orators pay said reward — with interest thereon from a date named- — -to the said Stewart. From this decree the defendant, Flanagan, excepted.

Replevin of one bale of buffalo robes. The defendant filed an avowry, justifying the taking, to which the plaintiff filed a general demurrer.

Trespass, foi' the dismantling, removing, and appropriating to the defendants’ use, a building belonging to the plaintiff, situated in St. George; and was tried by jury upon the general issue, at the September term, 1871, Pierpoint, Ch. J., presiding. Verdict lor the defendants. Writ dated March 16, 1867.

<p>Replevin for one iron safo, two hogs, and thirty-four gross spring water bottles, which the defendant, as deputy sheriff, took on an execution in favor 'of one Lawrence against one Austin. Plea, the general issue. Trial by jury, September term, 1871, Pierpoint, Oh. J., presiding.</p> <p>The plaintiff’s evidence tended to show that a portion of the property in question was negotiated for and purchased by said Austin for himself, in his own name, but was paid for by property claimed to bo property of the plaintiff, and that it was understood between said Austin and the plaintiff that it was to be the property of the plaintiff. There was also evidence tending to show that said property was at the time of the levy in the plaintiff’s possession.</p> <p>The evidence on the part of the defendant tended to show that most of the property in question had not only been purchased by said Austin in his own name, but had been by him solely used and controlled in and about his business as a hotel keeper, and was in his possession at the time of the levy; and that the plaintiff had never assumed any control or ownership of the property; and that the plaintiff’s name was used and resorted to merely as a cover of said Austin’s property.</p> <p>The plaintiff offered to show that the judgment, upon which the execution was issued, was rendered upon a negotiable promissory note, executed by said Austin to* other parties than said Lawrence, and who were still the owners of the claim, the consideration of which note was intoxicating liquor, purchased in violation of law, but the court excluded the evidence, to which the plaintiff excepted.</p> <p>In the same connection the plaintiff requested the court to charge the jury that if they found the property in question had once been the property of Austin, if it had been bona fide purchased by the plaintiff, though it remained in the possession of Austin, it was not held in fraud of said Lawrence, for the reason that his claim was made in violation of law; but the court declined so to instruct the jury, to which the plaintiff excepted.</p> <p>In other respects the'charge of the court was satisfactory to both parties.</p> <p>The jury returned the following verdict:</p> <p>“ In this cause the jury say that the defendant is not guilty in manner and form as the plaintiff in his declaration hath alleged. They therefore find for the return to the defendant to£ two hogs, and thirty-four gross spring water bottles, named in the writ, and to recover of the plaintiff one cent damages and his costs.”</p> <p>At the time of the rendition of the verdict no objection was made by either party to its form or substance, but afterwards, and before judgment, the plaintiff filed the motion to set aside the verdict, which motion is referred to and made a part of these exceptions. •</p> <p>The motion was presented to the court in due season and was overruled, to which the plaintiff excepted. The plaintiff thereupon moved that the court arrest judgment for the reasons set forth in the motion to sot aside the verdict, which motion was denied by' the court, to which the plaintiff excepted.</p> <p>The motion was that the plaintiff in his declaration alleged that the defendant was guilty of taking one iron safe, thirty-four gross spring water bottles, and two hogs, of the goods and chattels of flic plaintiff; and on trial by jury there was testimony as to the unlawful taking of all these items, introduced by both plaintiff and defendant, and the same was submitted by the court, and the jury were instructed by the court that, if they found the defendant guilty of taking the iron safe, to say so by their verdict; and if they found that the defendant was not guilty of the taking of the thirty-four gross spring water bottles, and two hogs, to say not guilty as to these ; but the jury by their verdict found only as to part of the matter in issue. They say nothing as to the iron safe, nor whether the defendant is or is not guilty of taking the same ; though the question was submitted by the court as a material and necessary part of their verdict. '</p> <p>If the property had been purchased in good faith by Hotchkiss, although still in possession of Austin, the former owner, and held by him in fraud of a legal creditor, or a Iona 'fide purchaser, yet it was not held in fraud of Lawrence, who held no legal claim against said Austin ; and the testimony offered by the plaintiff upon that point should have been admitted.</p> <p>Three questions were submitted to the jury, upon each of which they were directed to say whether the defendant was guilty or not guilty. In their verdict they say he was not guilty, as to the two last, but say nothing as to the first question; therefore, their verdict, finding only part of the issue, is insufficient as to the whole, and a new trial should be granted. Miller v. Trets, Coke’s Lit., 227 ; 1 Lord Raym., 824; Bex v. Hayes, 2 Lord Raym., 1588 ; Gabble v. Andrews, 3 Salkeld, 372 and 374; Van Benihuysen v. JDeWitt, 4 Johns., 213; 2 Hall, 211; Brown v. Henderson, 4 Munford, 492 ; State v. Bunten, 2 Nott & McCord, 441; Patterson v. United States, 2 Wheaton, 221; Graham & Waterman on New Trials, vol. 1, pages 140 to 144, inclusive.</p> <p>The verdict, whether general or special, if confined only to a part of the matter in issue, or'if it does not comprehend all the issue, is insufficient, and no judgment should be rendered upon it. Middleton v. Quigly, 7 Halst., 352; Coffin v. Jones, 11 Pick., 45 ; Lyon v. Stewart, 5 J. J. Marsh, 676 ; Tinkler v. Rowland, 4 Ad. & E., 868; Pennick v. Logan, 1 Miss., 283 ; Kegwin v. Campbell, 1 Root, 268 ; Smith v. Raymond, 1 Day, 189 ; Graham & Waterman on New Trials, vol. 3, pages 1386 and 1390 to 1396, inclusive; Royoe v. Dawson, 9 Wis., 246.</p> <p>The verdict must be taken as a whole. The first part “ not guilty,” is qualified by the rest of the verdict, in which they specify what he is not guilty of.</p> <p>The evidence offered was properly rejected. Thatcher et ah. v. Gammon, 12 Mass., 267 ; Adams v. Balch, 5 Me., 188 ; Gas-Jeill v. Dudley, 6 Met., 546. As to the motion to set aside the verdict, it was no part of the duty of the jury under the statute to make an order of return; that is to be done by the judgment of the court. Had they found the defendant guilty as to any item and not guilty as to others, the court could have rendered jugdment accordingly.</p> <p>Replevin is tried upon the plea of not guilty. In this case there was a general verdict of not guilty in the ordinary form. This was an absolute finding as to all the items of property in issue ; and is therefore not a case where the jury found only a part of the issue; under the verdict the defendant was entitled to an order for the return of all the property; but the defendant having accepted the verdict, and assented to the order of return of but two of the three items of property, the plaintiff, who is not prejudiced by the neglect to order the return of the safe, cannot complain or have the verdict set aside. White v. Bailey, 14 Conn., 272 ; Goodwin v. Berkins, 39 Vt., 698 ; Adm’r of Russell v. Maloney, 39 Yt., 579 ; Gen. Stat. Chap, 15, § 14. The verdict was a general one for the defendant, was rendered under proper instructions and warranted by the evidence, and it would have been in the power of the court, on application of the defendant, to have so amended it as to make it an order for the return of the safe also. Porter v. Rummery, 10 Mass., 64 ; Poster v. Estate of Caldwell, 18 Yt., 176. If the verdict had been not guilty as to the bottles and hogs alone, aud ordering their return only, tbe case would have presented a different question. Every proper intendment is to be made in favor of a verdict, and it is tbe duty of tbe excepting party to show that be is injured by it, and that it ought to be set aside. 14 Conn., cited above. JElkins v. Parlchurst, 17 Vt., 105.</p>

<p>Assumpsit on the common counts, under which the plaintiff, at a former term, filed the following specification :</p> <p>1864.</p> <p>May 28, To cash, two hundred and ninety-five dollars. $295.</p> <p>To interest on same to Sept. 10, 1866, 40.41</p> <p>$835.41</p> <p>Plea, the general issue and trial by jury, September term 1870, Pierpoint, Ch. J., presiding. Neither party made any preliminary statement of his claim, or what he expected to prove, to the court or jury.</p> <p>The plaintiff, without stating what he claimed the same to be, offered, in evidence, the following paper, which was admitted, by the defendant, to have been written and signed by him :</p> <p>“ Due Mr. Harvey Groot two hundred and ninety-five dollars, in part payment for a piano, said piano to be selected by Mr. Gi'oot.</p> <p>BurlingtoN, May 28, 1864. H. L. STORY.”</p> <p>2 cents U. S. Internal Revenue stamps affixed.</p> <p>The plaintiff called, as a witness, one Ernst, whose testimony-tended to show that this paper was signed by the defendant, and was in the fall of 1864, without the knowledge of the defendant, assigned by Groot to E. C. Lighte & Co., piano dealers of New York city, of which firm Ernst was a member, as equivalent to |295 in cash, in part payment for a piano costing §600, sold by them, at that time, to Groot; and that this action was prosecuted, in Groot’s name, by and for the benefit of Lighte & Co.; that the paper was shortly afterwards presented to the defendant by Lighte & Co., in New York, and payment of the amount therein specified demanded of him in money; that the defendant refused to pay the amount named in the paper, but claimed a large discount therein by way of commission ; that afterwards Lighte & Co. sent the paper to L. L. Lawrence, an attorney at Burlington, where the defendant resided, with directions to collect 'the same of the defendant; that in connection with these directions, they gave him, by letter, the following authority : “ We are willing to abide by your choice of a piano, worth, honestly, as near §300 as possible — say such an one as was originally sold to Mr. Groot for that sum.”</p> <p>On cross-examination of this witness, the defendant’s counsel inquired of him whether, when the paper, above described, was presented by them to the defendant for payment, the defendant did not claim that the contract between himself and Groot, when the paper was executed, was, that in consideration of the return of a piano, in a damaged condition, to the defendant, which Groot had previously bought of him new for §295, the defendant would allow him that sum towards the price of a piano costing not less than §550, which Groot was thereafter to purchase of the defendant, or of some firm with which the defendant — being a piano dealer — was dealing, in which case it was to be bought, by the defendant, for Groot; and that therefore, Groot having purchased a piano of Lighte & Co., with whom the defendant was not dealing, the defendant was entitled to the same discount from the §295 mentioned in said paper, which he would have received on the price of a §550 piano purchased of one of the firms with which Story dealt — ‘being about thirty per cent.</p> <p>The plaintiff thereupon claimed that the paper, in question, constituted a contract, and that the inquiry to the witness called for parol testimony tending to vary the terms of such written contract, and therefore objected to the question.</p> <p>The defendant then claimed that the paper did not constitute a contract, so as to exclude the testimony called for by the question; and moreover that it was not admissible, in evidence, as a contract, because it was not stamped with a five cent United States Internal Revenue stamp, as required in cases of written contracts by the laws of the United States. But the court decided that the paper did, in itself, constitute a contract, and that it was admissible in evidence, notwithstanding it had no five cent internal revenue stamp upon it, and that no parol evidence could be admitted to vary or explain the terms of the contract; to all which the defendant excepted.</p> <p>But the court decided that on cross-examination of this witness the defendant was entitled to inquire into the whole conversation between Ernst and the defendant at that time, because the plaintiff had, through the same witness, proved a part of it.</p> <p>And the witness answered the question, that Story said nothing further than that “ he expected a commission from us because he was a piano dealer. lie did not tell me that he was to have the sale and commission of the piano sold, or what the paper was given for.”</p> <p>The defendant was allowed to, and did, inquire at large of the witness respecting all the conversation between the witness and himself at the time in question.</p> <p>The plaintiff then introduced evidence, which was not contradicted, tending to prove that Lawrence, after receiving the authority above recited from Lighte & Co., and before the commencement of this suit, called on the defendant, at his store in Burlington, and there notified him that he had the paper in question and authority from Lighte & Co. to select a piano in payment thereof, and that he did then and there select a piano — the price of which was I860 — and offered to take it for the paper and to pay the difference — $55—to the defendant in money, and that the defendant replied to him that be should not have that piano, nor any other.</p> <p>The plaintiff thereupon rested his case. _ The defendant offered to prove by the defendant that at the time the paper in question was executed, a verbal contract was made in regard to the purchase of the piano at a future time, by Groot, of the defendant, at a price equal to $550 or $600 ; that the piano was to be purchased of the defendant, or of some piano dealer with whom Story was in trade, and in Story’s name, or if at any other dealer’s, then Story was to be notified and have an opportunity to purchase it himself, and that this contract was made in consideration of the defendant receiving back a piano in a damaged condition at $295 which Story had formerly sold, at the same price, to the plaintiff; that it was not intended by the parties to reduce this contract to writing, and that the paper offered in evidence, by the plaintiff, was given simply as a receipt for $295 towards the price of the piano which was to be purchased under that contract.</p> <p>To this evidence the plaintiff objected and the court excluded it, to which the defendant excepted.</p> <p>The defendant offered no further evidence, and waived his right to go to the jury upon the truth of the plaintiff’s evidence, and the court directed a verdict for the plaintiff for $295, and interest from the time of the demand of a piano by Lawrence, as above stated, to which the defendant also excepted.</p> <p>The paper offered in evidence by the plaintiff was so ambiguous that parol testimony was admissible to show what it was in fact, and to what it referred. Noyes v. Oanfield, 27 Vt., 79 ; 2 Parsons on Cont., 549-564 ; G-iddings v. Munson, 4 Vt., 308 ; Hitt v. Slocum, 37 Vt., 524 ; Tuclcer v. Baldtvin, 13 Conn., 185 ; Bishop v. Perlcins, 19 Conn., 300 ; Johnson v. Weed, 9 Johnson, 310 ; BatdorfY. Albert, 59 Penn. St., 59.</p> <p>Giving to the paper the force of a contract that Groot was to select the piano in question, the evidence offered did not contradict it. The paper is silent as to when, where, or how it was to be selected. The contract is so vague and indeterminate that it does not exclude evidence on all these points, nor on tlie quality oi* prices of the pianos from which the-selection was to be made. Parol evidence is inadmissible in this case only upon the theory that, the writing having provided merely that the piano was to be selected by Groot, it is a legal presumption or inference that there was no limitation upon his selection. But this is a mere presumption of law, and such presumptions may always be rebutted by parol evidence. Musselman v. Stoner, 31 Penn. Stat., 265, 270 ; Davenport v. Mason, 15 Mass., 85 ; Potter v. Hopkins, 25 Wend., 416.</p> <p>But instruments which have all the form and semblance of a contract, are not always conclusive. It may always be shown by parol that it was not the intention to reduce the whole contract to writing, (in which case the part not reduced to writing is allowed to be available,) or that the instrument was not delivered as a contract, but for some other purpose.</p> <p>The fundamental question is, For what purpose was the paper delivered? Was it delivered as a contract or as something else ? This purpose may be shown by parol, and when shown it controls „ the force and use of the instrument. Winn v. Chamberlin, 32 Vt., 318 ; King v. Woodbridge, 34 Vt., 566 ; Holmes v. Crossett, 33 Vt., 116 ; Huson v. Henderson, 1 Poster, 224 ; Webster v. Hodgkins, 5 Poster, 128 ; Fillcins v. Whyland, 24 N. Y., 338 ; Hazard v. Poring, 10 Cush., 267 ; Dunham v. Barnes, 9 Allen, 352 ; Hildreth v. O’Brien, 10 Allen, 104 ; Bogers v. Hadley, 2 Hurl. & Colt, (Ex.,) 227, 234 ; Miller v. Fichthorn, 31 Penn. St., 261 — Lowrie, Oh. J ; Musselman v. Stoner, 31 Penn. St., 265 ; Hitt v. Slocum, 37 Vt., 526 ; Barber v. Prentiss, 6 Mass., 434 ; Storer v. Logan, 9 Mass., 54; 4 Phillips’ Ev.^Cow. & Hill’s notes, p. 60, citing G-errish v. Washburne, 9 Pick., 338.</p> <p>But while parol evidence in regard to the terms of the contract was admissible on the part of the defendant, it was indispensable on the part of the plaintiff. Without it, he could not recover.</p> <p>The court was correct in excluding the evidence offered by the defendant. There is no ambiguity in the written instrument which requires explanation. It shows upon its face that the defendant is in debt to the plaintiff for the sum of $295, to be paid in such a piano as the plaintiff may select. The words “ in part payment ” import that the instrument was to be worth more than that sum, and the words “ said piano’to be selected by Mr. Groot ” show that the question how much more was to be determined bv him in the selection. Effect can be given to every part of the instrument without parol evidence. The evidence offered was calculated to add to these terms an important stipulation, and that in direct contradiction of their plain import. Rowell v. Ed-munds, 12 East, 6; Jeffery v. Walton, 2 E. C. L., 385; Reed v. Wood, 9 Vt., 285; Eavis et al. v. Bradley Go., 24 Vt., 55 ; Thompson v. Ketchum,, 8 Johnson, 146.</p> <p>The offer to show a contemporaneous parol contract is equally objectionable. Erwin v. Saunders, -1 Cowen, 249 ; Bradley v. Bentley, 8 Vt., 243; Hunt v. Adams, 7 Mass., 518; Hatch v. Hyde, 14 Vt., 25; Eitzhugh v. Runyon, 8 Johnson, 292; Raymond v. Roberts, 2 Aikens, 204; McGregor v. Bugbee, 15 Vt., 734 ; Langdon v. Lang don, 4 Gray, 186.</p> <p>The defendant is estopped from denying the import of the instrument. Eavis ei al. v. Bradley $ Co.', 24 Vt., 63; Eezell v. Odell, 3 Hill, 215.</p>

<p> Motion to Quash. Intoxicating Liquors. Seizure. Complaint and Warrant. Costs. Evidence. Search. Description of Place. Appearance. Assessors. </p> <p>All matters not apparent upon llie record, upon which a motion to quash is founded, must be alleged in a traversable form by plea, unless it is expressly provided otherwise by statute.</p> <p>The State’s attorney, without the consent or knowledge of the persons who signed the complaint for a seizure of intoxicating liquors, erased in the presonce of the justice, who issued the warrant, tho word “occupied,” and interlined in its stead the word “owned,” but afterwards erased the word “owned,” and retraced with his pen the word “occupied,” intending to restore it. Held, that he did not alter the complaint in fact or effect.</p> <p>Where a complaint for the seizure of intoxicating liquors after the direction to the justice omits the names of the complainants, but states as follows: “ Come legal voters in the city of Burlington, and complain,” &e., to which the signatures of three persons are affixed, it is substantially in accordance with the requirements of the statute.</p> <p>Where in the certificate of the oath, the persons are described as those above named, it is a reference to the complainants and to no others, and amply shows that the complainants made oath to their complaint, notwithstanding the initials of the given names were used in one place, and the whole names in another.</p> <p>If the description of the place to bo searched leaves no discretion to the officer, as to what place he will search, but directs him in that respect, it is sufficient.</p> <p>The claimants appeared, and after they had objected to the return of service, remained before the court and made claim. Held, that the proceedings thereafter were well founded upon the voluntary stay of the claimants.</p> <p>Assessment rolls made by assessors under the laws of the United States, and entries made by collectors under the same laws, showing that It. had taken out a United States licence as a retail liquor dealer, is proper evidence ‘ tending to show that ho intended to pursue that avocation.</p> <p>The marking of liquors claimed by 0. to him at Plattsburg via Burlington, while he lived in Burlington, and kept a grocery there, in connection with the quantity of the liquors, and the fact teat they were at Burlington, tended to show that the liquors were got for unlawful purposes.</p> <p>The fact that B»., the claimant, kept the Stanton House in Burlington, which was supplied with conveniences for selling liquor, and that a former seizure had been made at the same house, while it was kept by E.., was proper -evidence, tending to show that the liquors seized there wore kept for an unlawful purpose.</p> <p>Á hotel keeper has no right to furnish his boarders with intoxicating liquors.</p> <p>The taxation of costs against claimants is proper, either under the general laws or under the act of 1870.</p>

Case to recover for an injury alleged to have been sustained by the wife of Lewis Ozier, by reason of the insufficiency of a highway in the town of Hinesburgh. Plea, the general issue, trial by jury, September term, 1871, Pierp5int, Ch. J., presiding, and verdict for the plaintiffs.

This was an action of ejectment to recover one undivided third of about 150 acres of land in the town of Richmond. Plea, the general issue, and trial by jury.

General assumpsit, based upon sec. 34 of chapter 84, of the General Statutes, brought to recover certain taxes assessed against the defendant in the town of Grand Isle in the years 1868-1869. Plea, general issue and notice. Trial by jury; February Term, 1871, Royoe, J., presiding.

PETITION for Certiorari, addressed to the supreme court for the county of Franklin, January term, 1872. The facts alleged in the petition were in substance as follows, viz. : That the selectmen of the town of Fairfield, on the 5th day of May, 1870, upon due application, laid out a pent road from Edward Burke’s to Jerry Fitzgerald’s, in said Fairfield.

General assumpsit to recover for certain bills of liquors . claimed to have been sold by the plaintiffs to the defendant. Plea, general issue. Trial by jury and verdict for the plaintiffs, Sept, term, 1871, Royoe, J., presiding. It appears that the plaintiffs were wholesale liquor-dealers residing and having their place of business in the city of New-York. The plaintiffs offered as evidence the deposition of Neman A. Blanchard, one of the plaintiffs.

Trover for a mare. Plea, general issue. Trial by‘jury, Sept. term, 1871, Royce, J., presiding.

This was an action of book account, and beard and tried upon the auditor’s report, September term, 1871, Royce, J., presiding, and judgment rendered on the report for defendant, to which the… Held: but after it had been warned, the defendant called upon the plaintiffs and employed and retained them to assist him professionally in his difficulty with the town ; and a consultation of considerable length was had, in which the bond was shown, and its legal effect discussed.

Assumpsit. Plea, the general issue, payment and set-off. This case was referred, and the referee reported as follows: The plaintiff’s claim was for services rendered in November, 1868, under a contract by which he was to receive twenty-five dollars.

The plaintiff’s claim is based upon the alleged neglect of one A. S. Sampson, a deputy of the said A. J. Soule, who was at the time of the alleged grievances sheriff of Franklin County. The neglect complained of by the plaintiff in his declaration was, the omission of said Sampson to attach the property of one Hendrix, upon a writ placed in his hands for service, in favor of the plaintiff. To which the defendant answered by five special pleas in bar.

Trespass quare clausum fregit. Pica, the general issue. Trial by jury, September term, 1871, Royoe, J., presiding. It was conceded on trial, that one Theodore W. Smith was once the owner of the land in dispute, and the lands adjacent; and both parties claim to derive title from him.

Trover, brought in the name of the plaintiff, but by and for the benefit of B. E. Assinault, to recover for the value of a wagon. Plea, the general issue and trial by jury, and verdict for the plaintiff, April term, 1871, Royos, J., presiding. It was admitted that the defendant, as constable of the town of Swanton, attached and sold the wagon in controversy before the bringing; of this suit, on a writ of attachment in favor of E. S. Meigs and against J. A. Potwin.

Assumpsit upon a promissory note. The defendant, Scofield, pleaded his discharge in bankruptcy in bar to said note, and judgment was rendered upon said plea in favor of said Scofield. The defendant Kendall pleaded the general issue, and also gave notice of special matter in defence. Trial by the court, September term, 1871, Royce, J., presiding.

Bill in CHANCERY. The bill set forth that the defendant, Buck, on the 13th day of March, 1866, duly executed and delivered a lease of certain premises, situate in St. Albans, to one Joseph Meringo.

<p>Assumpsit in two special counts, and the common counts. The defendant pleaded two special pleas to the two special counts in the plaintiff’s declaration, to which the plaintiff demurred generally.</p> <p>The court at the September term, 1871, Royce, J., presiding, pro forma overruled the demurrer and sustained the pleas, to which the plaintiff excepted. Judgment for the defendant — exceptions by plaintiff.</p> <p>The point raised by the pleadings is accurately and fully stated in the opinion of the court.</p> <p>The judgment of the court below, overruling the demurrer and sustaining the plea, should be affirmed. Brown on Frauds, §§ 296, 297, 298; Tisdale v. Harris, 20 Pick., 9 ; Baldwin v. Williams, 3 Met., 365 ; Parsons on Contracts, vol. 3, pp. 49, 50, 51; North v. Forrest, 15 Gobji., 400 ; Gen. Stats., p. 453, § 2; 30 Vt., 428; 20 Pick., 9..</p> <p>Tbe defence under the statute of frauds may be shown under the general issue or pleaded specially. Hotchkiss v. Ladd, 36 Vt., 593.</p>

<p>Tbespass, qu. el. fr., and case, for the same cause of action. There were two counts in trespass, charging that the defendants, on different dates, broke and entered the plaintiff’s close, and took away a dwelling-house and one hundred loads of stone, and continued to occupy said close, and one count in case, alleging that the plaintiff, on the 20th of February, 1866, was the owner and holder of a certain mortgage deed, executed by one Mary Ann Turner of the same close, described in the above counts; that the plaintiff, on the 20th day of March, 1866, commenced a suit to foreclose said mortgage, which was entered in the court of chancery, within and for said county of Franklin, at the April term, 1866, and that the plaintiff, on the 20th day of April, 1866, obtained a decree against the said Mary Ann Turner, which expired on the 20th day of April, 1867, the said Mary Ann having failed to redeem said premises, and the title thereto, so far as the said Mary Ann had any interest therein, became absolute in the plaintiff; and that on the 27th day of June, 1866, the defendants entered upon said premises and drew off a dwelling-house and one hundred loads of stone, and have since occupied said premises.</p> <p>Plea, the general issue, and two special pleas alleging that Henry Seymour was the owner of said close ; that the same was near to and adjoining t » Vermont and Canada Railroad ; that before the defendants entered said close, and went into possession thereof, the said Seymour had given Mary Ann Turner license to place on said close said dwelling-house, to remain until May 1st, 1867, together with the right to remove the same from said close; and tha¡fc before and at the several times when, &c.,the said Mary Ann had by said license placed said dwelling-house upon sajd close, and was occupying the samethat said close became necessary for the depot accommodations of said railroad, and commissioners were duly appointed who appraised- the damages of said Seymour and said Mary Ann, which damages the said railroad company paid; that said Mary Ann removed said dwelling-house and said stone, and the defendants, as trustees of a railroad company, thereafter went into possession of said close, and erected a depot building thereon, and said close has ever since been occupied by said railroad company.</p> <p>Replication denying that the plaintiff had notice from said commissioners, or said railroad company, of, the appraisal of damages to said premises, and alleging that said railroad company and the defendants, were notified by the plaintiff not to pay the damages awarded to Mary Ann Turner.</p> <p>Trial by jury at the April term, 1871, Royoe, J., presiding. Verdict for the plaintiff.</p> <p>On the trial, the plaintiff offered a mortgage deed from Mary Ann Turner to himself, of the premises in question, dated September 26th, 1864, conditioned for the payment of a note for $500, dated May 27, 1864, payable one year from date. The defendants objected to the admission of this deed in evidence. The court overruled the objection and admitted the deed, to which the defendants excepted. The plaintiff also introduced a petition for the foreclosure of the above mortgage, in favor of the plaintiff against the said Mary Ann Turner, and a decree of the court of chancery thereon, dated April 20th, 1866, and expiring April 20th, 1867.</p> <p>The plaintiff also introduced a lease from Henry Seymour to Mary Ann Turner, dated November 21, 1860, of the premises from which said buildings were removed, for the term of three years from the first day of May, 1861, by the terms of which, if she complied with all the conditions of said lease, she had a right to move off said buildings at the end of the lease, and that the said Seymour, in case of the failure to perform by the said Mary Ann Turner, of the covenants and stipulations on her part in said lease, might remove said buildings from the premises at her expense. It was not claimed that Mary Ann Turner had any other right to the premises than such' as she had by virtue of said lease or an alleged parol extension thereof, the offer to prove which by the plaintiff was excluded by the court. Prior to the time of the trial the action had become discontinued, as to the defendant Brainerd, by his death. •</p> <p>After the plaintiff rested, the defendants moved that the third count of the declaration be dismissed for a misjoinder.</p> <p>The court overruled the motion, to which the defendants excepted.</p> <p>The defendants also put into the case the deed from Hiram S. Kilburn to Henry Seymour, dated April 15, 1834, which conveys the land on which the said buildings stood, together with other lands; also a copy of the condemnation of said land by the Vermont and Canada Railroad Company, dated May 22,1866, under which the defendants went into possession of the premises; also the appraisal of damages to Mary Ann Turner for the property.</p> <p>The defendants also put into the case a mortgage deed from Mary Ann Turner' to the plaintiff, dated April 13, 1863, and a mortgage from Mary Ann Turner to the Vermont and Canada Railroad Company, dated September 14, 1866. Upon the foregoing facts the defendants requested the court to direct a verdict for the defendants, for the reason that there was no proof in the case supporting either count of the declaration. The court refused this request of the defendants, and ruled pro forma that the plaintiff had shown such an interest in the property as would entitle him to sustain the suit upon the third count in the declaration: to which refusal" of the court to direct a verdict for the defendants, and his instruction as above set forth, the defendants excepted.</p> <p>The mortgage from Turner to plaintiff, of September 26, 1864, was given after the written lease from Seymour to Turner had expired by its own limitation: consequently, Turner had no interest in the premises she could mortgage. 7 Barb.,599; 25 Eng. Law and Equity Reports, 37. The condemnation o'f the premises for the uses of the railroad, May 22, 1866, is a full defense to the defendants for entering upon the same, and the plaintiff cannot sustain trespass quare clausum: the plaintiff neither having title nor possession of the premises. Runyan v. Mersereau, 11 Johns., 538 ; Jackson v. Willard, 4 Johns., 41.</p> <p>The plaintiff neither having title nor possession of the premises, there is no principle of law upon which the defendants were bound to appraise damages to him, or to regard any debt that Turner might bo owing him. Turner was only a tenant at will or sufferance. Gen. Stats. 220, § 20 ; Breed v.JHastern R.R. Go., 5 Grey, 470, (note) ; 2 Washburn Real Prop., 156 ; Parish v. Grilmanter, 11 N. H., 293 ; Wright v. Turkey, 3 Cush., 290; Norwich v. Hubbard, 22 Conn., 587 ; Howard v. Robinson, 3 Cush., 119.</p> <p>Turner did not undertake to mortgage the building or the stone to plaintiff. If plaintiff obtained any lien upon the building, it attaches as well where it now stands — on the land where Turner moved it to — as on the land in question. If the building and stones were chattels, and owned by Turner, a mortgage of them to the plaintiff would be of no validity while Turner remained in possession. The plaintiff cannot maintain trespass quare clausum unless he can show possession, or the right of possession, as against Seymour or these defendants. Rifley v. Yale et als., 16 Yt., 257. Trespass upon the freehold and case cannot be joined. Key.es v. Prescott, 32 Yt., 86.</p> <p>The statute provides that counts in trespass may be joined with trespass on the case, if for the same cause of action. If there was a misjoinder, a verbal motion to dismiss on trial would not avail the defendants. Their remedy would be by demurrer. The plaintiff could then elect the particular count or counts he desired to recover on. 1 Chitty on Pleadings, 200 ; May v..Williams, 3 Yt., 239. The defendants’ several pleas admit that Mary Ann Turner had a lease of the premises until May 1,1867. The defendants are, therefore, estopped from denying that fact by their pleadings. 1 Sanders on Pleadings and Ev., 39.</p> <p>The case shows that the plaintiff had foreclosed his mortgage and obtained a decree before the property was taken by defendants. The interest in the premises had then become his — subject to the right of Mary Ann Turner to redeem. The decree expired without redemption before the lease expired: whereby the plaintiff became the absolute owner of the interests of said Turner therein. Gen. Stats., 339, § 12, 364, § 15; Atkinson v. Burt, 1 Aik., 329 ; Lyman v. Mower et al., 6 Vt., 345 ; Wilson v. Harper, 13 Vt., 653 ; Pierce v. Brown, 24 Yt., 165 ; Smith v. Q-oodwin, 2 Maine, 173. The case shows that the defendants, as trustees of the Vermont Central and Vermont & Canada railroads, removed the house, or caused the same to be removed, and appropriated the stones to their own use, and interfered with and destroyed plaintiff’s interest in the premises without compensation and without notice as required by statute. In proceedings in in-vitum courts watchfully and scrupulously protect the rights and interests of private individuals. Hence the court below did not err in directing fro forma that plaintiff could recover on his last count. Gen. Stats., 220, 221, §§ 21, 26; Claremont Bridge v. Boyce, 42 Vt., 730; Brown v. Smith, 1 N. H., 36; 1 Saunders on Pleadings and Ev., 334.</p>

BOOK acoount. The case was tried upon general objections to tbe auditor’s report, at the September term, 1871, Royce, J., presiding. Judgment for the defendants on the report. Exceptions by the plaintiff. The auditor reported in substance as follows: “ In the spring of 1867, the plaintiff appointed the defendant, Kinsman, an agent for selling the Kniffen mowing-machines on commission.

<p>In an action founded upon the judgment of the probate c urt accepting the report of the commissioners on the estate of the plaintiff’s testator, wherein a balance was found due the estate, the defendants cannot plead in offset any item of claim that accrued to him during the lifetime of the testator.</p> <p>This was an action of debt on judgment of the probate court. The defendants pleaded in offset, to which the plaintiff replied. To the second replication of the plaintiff the defendants demurred generally.</p> <p>The court fro forma, overruled the demurrer and adjudged the replication sufficient, and rendered judgment pro forma for the plaintiff, to which the defendants excepted.</p> <p>The point presented by the pleadings sufficiently appears in the opinion.</p>

Bill in chanoery. The material averments of the bill were as follows: That John Maloy, of St. Albans, deceased, about the first of November, 1848, leaving an estate, consisting of a piece of land of about 17£ acres, in St. Albans, and which was appraised at the sum of $262.50, which was its true value ; that there was a mortgage thereon to James M. Haynes for about the sum of $117; that claims were allowed by the commissioners on said estate to the amount of $80.94; that…

Action of assumpsit on three promissory notes, dated July 28, 1866, for the sum of one hundred and eighty-one dollars and forty-one cents, payable in specie. The declaration also contained the common counts, under which the plaintiff filed his specification. Plea, the general issue and pleas in offset, trial by jury, September term, 1870, Wilson, J., presiding.

ACTION op ACCount. The question of defendant’s liability to account was submitted to the court upon the following statement of facts: On the 12th day of April, 1866, the plaintiff, then being a minor, made choice of the defendant as his guardian, and on the same day the latter was duly appointed such guardian by the probate court for the district of Addison.

General assumpsit. Plea, the general issue, and trial by jury, June term, 1871, Pibrpoint, Ch. J., presiding, and verdict for the plaintiff.

<p> Soldier’s Bounty. Construction of Vote. Tax. </p> <p>A warning to seo if a town will voto a tax for the purpose of paying a bounty does not authorize a vote to borrow money for this purpose.</p> <p>A vote at a subsequent meeting to pay an additional bounty would not confirm and le- . galize the former invalid vote.</p> <p>A town that fills its quota in good faith is not liable to pay a bounty to others who may have enlisted and been mustered in at an earlier date, but of which the town had no notice, when such enlistment was not applied on the quota.</p>

Action of account. The court at the June term, 1871, Pier-point, Ch. J., presiding, rendered judgment, pro forma, for the plaintiff, upon the auditor’s report, overruling the defendant’s exceptions thereto. To which decision the defendant excepted. “ The defendant, residing in Colchester, in the county ■ of Chit-tenden, in the year 1850, was the owner and keeper of a hotel in said Colchester.

Tf /was an action of slander for words spoken. After trial by ju /, verdict for the plaintiff, and before judgment, the defendant moved the court for arrest of judgment for the insufficiency of the plaintiff’s declaration. The court, at the September term, 1870, Steele, J. presiding, pro forma overruled the motion and adjudged the declaration to be sufficient. To this decision of the court the defendant excepted.

Petition for mandamus, addressed to tbe supreme court, Washiugtou county, August term, 1871. The respondent filed an answer to the petition, to which the relator replied. The facts alleged in the pleadings are sufficiently stated in the opinion of the court.

This was a petition for the affirmance of a judgment, rendered on tbe 20th day of December, 1870, by B. W. Marshall, a justice of the peace, on complaint of Joel 0. Baker, a grand juror of Rutland, for violation of the statutes relating to the traffic in intoxicating drinks: from which the respondent had appealed to this term of this court, and had not entered his appeal. The respondent appeared by attorney, and objected to the affirmance.

ActioN op assumpsit, declaring in the common counts, and also special counts, upon a contract by said town with the plaintiff to enlist to the credit of the town, on a quota which said town was then liable to fill under a call of the President of the United States, issued July 18, 1864, to recruit the army for putting down the rebellion. Trial by the court, September term, 1871, Wheeleb, J., presiding.

Assumpsit to recover for a_ quantity of liquor. Plea, tbc general issue. Trial by tho court, September term, 1871, Wheeler, J., presiding. The plaintiffs were liquor dealers in New York city, and sold the liquors ill question for a fair price. The liquors were sent, marked “ Town of Pittsford, H. F. Tiffany, Agent,” and were received by him.

Action of trespass quare clausum. Plea, the general issue, with notice of special matter. Trial by j,ury, March term, 1871, Wheeler, J., presiding. The defendants had the right to out timber on a lot known as the Harvey lot, which lay just east of and adjoining the plaintiff’s lot. The main question in issue was as to the location of the west line of the Harvey lot, which was the east line of the lot owned by the plaintiffs.

Assumpsit on special and general counts in assumpsit, to recover for the support of an alleged transient pauper, Joseph E. Congdon, under § 13 of oh. 20 of General Statutes. Plea, the general issue, and trial by the court, March term, 1871, Wheeler, J., presiding.

Action upon a note dated March 31, 1861, signed by the defendants, and payable to Alvah Preston, or bearer, two months from date, with interest, for twenty-seven dollars, and endorsed by Preston to the plaintiff, for value received, on the 1st day of April, 1864. Plea, the general issue, with notice. Trial by jury, September term, 1871, Wheeler, J., presiding.

This is an action of trespass for taking and carrying away a quantity of furniture. Plea, the general issue, with notice of justification under writs of attachment and executions against one George Pepler. Trial by jury, March term, 1871, Wheeler, J., presiding. Upon trial it appeared that for several years prior to the 10th day of March, 1869, said George Pepler’ had been engaged in business, making, repairing and buying aud selling furniture at West Poultney, in this State.

This is an action of assumpsit upon several special counts. Plea, the general issue, and trial by the court, at the March term, 1871, Wheeler, J., presiding. Upon the trial it appeared that on the first day of October, 1866, the plaintiffs owned tenement houses with land adjoining for gardens, in Poultney, then out of repair and encumbered with rubbish.

TRESPASS for taking four yearlings. The ease was tried upon the following agreed statement of facts : For many years prior to 1864, there was a school district in Clarendon, numbered 7, in which district the plaintiff and his taxable property was situated.

Assumpsit on note. Plea, the general issue. Trial by the court, at the September term, 1871, Wheeler, J., presiding. The plaintiff gave in evidence a note, a copy of which is as follows : “Brandon, March 14th, A. D. 1868.

<p>Assumpsit upon common counts. Plea, tlie general issue, and trial by court, at the September term, 1871, Wheeler, J., presiding.</p> <p>Upon the trial, it appeared that one Wilson had arranged with the plaintiff for the purchase of a rifle, in part payment for which he was to give a note for $22, with surety, and that Wilson procured tho defendant to become such surety by agreeing that in the purchase of tho rifle he should act as the agent of the defendant, and the rifle bo the property of the defendant until the note should be paid. That the plaintiff was commonly called Frank, when called by given name. That Wilson procured a note to be drawn, dated April 28, 1869, for twenty-two dollars, payable in the month of October then next, to Franklin Dorby, supposing that to be the plaintiff’s name, and the defendant signed the note as surety. That Wilson took the note to the-plaintiff and the plaintiff noticed that the name of the payee was Franklin, instead of Francis E. Derby, and that Wilson then consented that the plaintiff might alter the name of the payee from Franklin Derby to Francis E. Derby, and the plaintiff did so alter it and took it in payment for tho rifle, and that the defendant did not know of the alteration. The plaintiff offered the note in evidence, in connection with tho proof of these facts. The defendant objected. The court overruled the objection and admitted the note in evidence, and upon these facts rendered judgment for the plaintiff for the amount of the note with interest. To each of those decisions the defendant excepted.</p> <p>The alteration of the note by changing the name of the payee was a material alteration, and constitutes a good defense as far as the defendant is concerned. Broughton v. Fuller et al., 9 Vt., 8TB ; Bigelow et al. v. Stilphen et al., 85 Vt., 521; 2 Parsons on Notes and Bills, 571.</p> <p>As the plaintiff was the real party for whom the note was intended, and could have enforced the collection of the same as it was originally written, the alteration was an immaterial one, and does not affect the validity of the note. Langdon v. Paul, 20 Vt., 217 ; Bigelow et al. v. Stilphen, 35 Vt., 521; Granite JR. JR. Co. v. Bacon, 15 Pick., 239 ; 2 Parsons on Notes and Bills, 559-560, 569, 571, 582; Clute etal. v. Small, 17 Wend., 288; Broughton v. Fuller, 9 Vt., 378.</p> <p>Where the alteration, as in this case, was honestly made, the original words can be restored. Nevins et al. v. Be Grand, 15 Mass., 412 ; Adams et al. v. Frye, 3 Met., 103. The case also shows that Wilson bought the rifle, for which the note was given, for Thrall, as his agent, and hence if the alteration was a mate-rial one, such as invalidated the note, but was honestly made, as the case shows it was, the plaintiff could recover for the rifle under the common counts for goods sold, and delivered. Wilson v. Carey, 40 Vt., 179 ; 2 Parsons on Bills and Notes, 571; Clute et al. v. Small, supra; Atkinson v. Rawdon, 29 E. 0. L., 169.</p>

<p> Water Privilege. Mills and Mill Owners. Peed. Reservation. Easement. </p> <p>Tho plaintiffs owned a paper mill on one side of a river, and there was a grist-mill and saw-mill on the other side, the grist-mill belonging to the defendants, the throe mills deriving their power from a singlo dam. The measure of their respective rights to the use of the water depondod upon the construction of a deed in the plaintiffs’ line of title, wherein the description embraced tho south half of the bed of the stream and of the dam. The deed then proceeds as follows*, “together with the paper-mill standing on tho first mentioned premises, with all the privileges and appurtenances thereunto belonging, with all the rights and privileges on the falls where the paper-mill stands reserving to myself tho grist and saw-mill thereon standing, with all the privileges thereunto belonging.” Held that this was a conveyance of all the water power at that point on the stream except what was reserved, and there was reserved out of the whole 'water power enough to answer to the privileges belonging to the gristmill and saw-mill, whatever those privileges might be, whether half or more than half of the water flowing at any given time in the stream.</p> <p>The privileges belonging to the grist-mill and saw-mill included sufficient water to operate them as they were then constructed, in low water as well as in high water.</p> <p>There being no evidence in the case tending to show that, in low water, half of the water flowing in the stream, or less, would be sufficient to operate the grist-mill, the county court was not justifled either from the deed or evidence in holding that the reservation was to be taken out of half of the water of the stream.</p> <p>A reservation is something taken from the whole thing, covered by the general terms making the grant.</p> <p>Of the said reservation, only the grist-mill and its privileges are owned by the defendants; and it is held that the measure of the quantity of water reserved is to be determined as of the date ^of the deed containing the reservation, and is such a quantity as was then nocessary to operate the grist-mill as it was then constructed, having reference to the dopth at which the water was taken from the dam, the wheel or wheels then in use, and the number of runs of stones driven.</p> <p>The defendants would not be allowed to take more than this measure of water some portions of the day, and excuse themselves by showing that they used improved wheels and machinery, and thereby accomplished the work they could have done with the quantity reserved for twenty-four hours, in half that time, so that during the day thoy used no more of the water than thoy had a right to use in that time if used continuously.</p> <p>The deed of the grist-mill and saw-mill provided that the “ saw-mill shall never draw the water away from or injure the paper-mill * * * ; nor shall the grist-mill take the water from the paper-mill to injure it in its motion, any time from 12 o’clock at noon to 12 o’clock at night.” Held that the right of the saw-mill to the use of the water is postponed till after the right of the paper-mill is satisfied; and that in low water the grist-mill has the precedence to the paper-mill in the right to use the water from 12 o’clock at night to 12 at noon, and is postponed in the use of the water to the right of the paper-mill for the other 12 hours of the day.</p> <p>Semble. When the titles to the dominant estate and to the servient estate unite in a common owner, the easements are merged and lost in him, and on separate conveyances of the estates by the common owner, such easements are not revived nor treated as having existed during the timo the two estates were in the common ownor, but are recreated by the conveyance of the ostates separately, and arise from the application of the principle that whoever grants a thing impliedly grants whatever may be necessary for the beneficial enjoyment of the thing granted.</p>

<p> Justice of the Peace. Jurisdiction. Division Pence. Appeal. </p> <p>A justice of tlie peace has jurisdiction of an action on the case brought by a land owner against an adjoining proprietor, under § 6, ch. 102 of the Gen. Stats., to recover damages to the amount of $200, for neglecting to build, or keep in repair, his proportion of the division fence.</p> <p>The act of 1867, (No. 9, p. 16,) gives a justice of the peace jurisdiction in this class of cases to the amount of $200, irrespective of the question whether the title to land may be involved or not; and an appeal is given in all such cases whatevor may be the amount of the recovery.</p>

<p>Trespass, q. c. f. Neiv Assignment. Pleading. Evidence.</p> <p>In actions of trespass, q. c. f., where the declaration, in addition to the averments of breaking and entering the plaintiff’s close, contains allegations of other matt' as the expulsion of the plaintiff from tho premises, or the taking and caLtf...0 «.Tras-oí personal property, leaving it equivocal whether the plaintiff intends such additional matter as aggravation of the principal trespass, or whether it was inserted as a distinct trespass for which the plaintiff seeks to recover, as a substantive ground of action, the defendant has a right to regard it as aggravation merely, and in his plea pass over it in silence, answering only the alleged trespass on the freehold.</p> <p>In such caso, if the defendant so pleads, and his plea is a good answer to the alleged trespass on tho freehold, it is, prima facie, an answer to the whole action, and if the plaintiff wishes to avoid this effect and rocover for such additional trespass, as well as for the trespass on the freehold, he must new assign in respect to such additional trespass, and allege in his new assignment that ho brought his action as well for the trespass mentioned in the plea, as for the trespassos newly assigned; but it is not neo-cossary to new assign where the plea attempts to justify all the trespasses or grounds of action specifically, for which the plaintiff proceeds.</p> <p>Tho defendant having treated all the alleged trespasses in the declaration as substantive trespasses, and pleaded to them accordingly, no new assignment was necessary, and tho plaintiff's replication of de injuria is an entire traverse of the pleas, and puts in issue the trespasses to tho personal property as well as on the freehold; and the allegation in the plea that the defendants did no unnecessary damage, is a material and traversable allegation, and is involved in the issue thus formed, and the plaintiff has a right to show and recover for any unnecessary damage done to the personal property.</p> <p>Title and right of possession of a dwelling-house does not justify an entry and forcible expulsion of the occupant and his family wrongfully holding over.</p> <p>Evidence that tho defendant was in collusion with the plaintiff's housekeeper, to aid him in getting possession of the house in the plaintiff’s absence, while she, the housekeeper, was leit in charge of plaintiff’s childron, and in charge of the house, is inadmissible, even in mitigation of exemplary damages.</p> <p>Evidence that the defendants acted under the advice of counsel, in doing the acts for which tlie action of trespass q. c.f. is brought, is not admissible as tending to show that defendants supposed thoy had a right to do such acts, when, in fact, they did not follow the advice, but acted contrary to it.</p>

<p>Bill in chancery. The bill set forth that on the 25th day of May, 1861, Property McDonald, of Glastenbury, in the county of Bennington, having no legal, equitable or moral claim or demand whatever against the orator, but fraudulently contriving and intending to appropriate to himself tbe moneys and other property of the tax-payers of the orator, with the intent to cheat and defraud said tax-payers, and to compel them to pay him a sum of money to which he was not entitled, fraudulently conspired with one Jeremiah McDonald, the father of the said Property, and with one John W. McDonald, the brother of the said Property, and both of whom, at the .annual meeting of the said inhabitants then next preceding, had been duly elected two of the selectmen of the orator, and were then acting as such selectmen, and the said Property fraudulently induced the said Jeremiah and John to sign, in their capacity of selectmen, in the fraudulent violation of their official duty to the orator, without the concurrence and against the remonstrance of Daniel G-. Smith, then the only remaining selectman of the orator, an order upon the treasurer of the orator, thereby directing the said treasurer to pay to the said Property the sum of 1500, and falsely and fraudulently purported to have been given for damages sustained on the highway in said town ; that said order was so given upon no legal, equitable or moral consideration whatever, but was concocted and given fraud, ulently and with the intent aforesaid, on the part of each and all of the above named Property, Jeremiah, and John, and by the latter two in the willful and fraudulent disregard of their duties as such selectmen. That further to fulfill and accomplish his said fraudulent purpose, the said Property McDonald afterwards, to wit: on the 2d day of May, 1862, commenced a suit against the orator, by writ returnable to the county court for said county, therein counting in assumpsit upon said order, demanding in damages the sum of eight hundred dollars ; which writ and suit were duly entered in said county court, and are now pending therein ; and the said Property now threatens to take a judgment therein against the orator for the amount of said order and interest thereon, with costs.</p> <p>Prayer : That the said Property may be perpetually enjoined from taking judgment against the orator, in the said suit now depending in said county court, and from prosecuting the same suit against the orator; that the said order so given as aforesaid may be declared to be utterly null and void, and of no effect; that the said order may be surrendered to the orator to be cancelled, and that the said Property may in the meantime be restrained from further prosecuting the said suit against the orator, and from taking judgment therein ; and for further relief.</p> <p>The defendant in his answer denied all fraud on the part of the said Property McDonald and the selectmen aforesaid, and that Smith, selectman, opposed the giving of said order, and alleged that the order in question was given to settle a suit against the complainant town in favor of the said Property for an injury received by him by reason of the insufficiency of a certain highway in said town, and that said suit sought to be enjoined by the orator was brought to recover the amount due on a certain other order for $81.84, as well as the sum due on the order mentioned in the bill of complaint.</p> <p>The answer was traversed, and the case was heard upon the pleadings and proof. The court, at the December term, 1870, 'Wheeler, Chancellor, decreed, pro forma, that the bill be dismissed, from which decree the orator appealed.</p>

Action op replevin for taking and detaining a cow. The case was referred to a referee, who reported the following facts : The defendant, Champlain Noyes, and his son, George H. Noyes, from the 3d of August, 1863, until after the commencement of this suit, were jointly and equally interested in farming and butchering, as partners, under the firm of C. Noyes & Son, having a sign with such firm name upon it, the farm on which their business was conducted being owned by said…

<p> Cashiers of Banks. Statute Penalties. Remedy. Statute. </p> <p>Where a town has sustained damage, by reason of the neglect and refusal of the cashier of a bank to perform the duties imposed by §39 of cb. 83 of the General Statutes, and by § i of No. 6 of the acts of^the legislature of 1865, tho forfeitures provided in §47 of oh.83, andinas of the acts of 1865, are all the remedies that the town has for the non-performance of the duties imposed.</p> <p>The law will furnish a remedy to a party injured by the neglect or non-porformance of a duty imposed on an individual by statute, where the statuto itself furnishes no remedy; but if the statute, which imposes a new duty, also provides a x>articular remedy, that remedy is usually the only one the injured party has.</p>

General assumpsit. The case was referred and the referee reported as follows : The first item of the plaintiff’s specification is for labor of his minor son, Charles Ingram? on the farm occupied by the defendants, in Whitingham..

<p> Soldier's Bounty. </p> <p>At a town meeting held December 1st, 1863, under a eall as follows:</p> <p>“2d. To see what course the town will take in regard to raising of soldiers, that the town is now called upon to furnish,” and</p> <p>“3d. To seo what bounty the town will agree to pay as inducement for volunteers to enlist,”</p> <p>The-town voted “1st. To pass over the 2d article.”</p> <p>“ 2d. To raise $300 as a bounty or pay $20 per month for each man while in service.”</p> <p>“4th. To pay these men if raised the bounty of $300 each, when mustered into ser-veee, or $20 per month each during the term of service.”</p> <p>Held that the above votes when oonsidored in connection with the call had. reference to the men required to fill the quota of the town at tho time they were passed.</p>

Debt on judgment. The commissioner to take the disclosure of the trustee, reported the following facts : Ia 1857, the defendant, for a valuable consideration, conveyed all bis property, real and personal, to bis son, John T. Currier, trustee in .this suit.

Book Acoount. Judgment to account. Tbe auditor filed a report at the September term, 1871, which was accepted, and tho court, Boss, J., presiding, rendered judgment thereon for the plaintiffs for the amount of their demand against both defendants, to which the defendant, Henry, excepted.

Action op assumpsit. The case was referred. The referee reported substantially as follows: Tho defendants, residing mostly in Windsor and Windham counties, were partners in the business of operating an oil well in Bothwell, Canada West, under the name of the Connecticut River Petroleum Company, during the year 1866, and until March. 1867, during all which time R. L. Crowell was their agent, and resided at Bothwell.

<p>This, was an action of trespass, for an assault with an attempt to ravish. Trial by jury, September term, 1871, Ross, J., presiding, upon the general issue.</p> <p>The plaintiff testified, in substance, that she was fifteen years old, and in February or March, 1869, she went to the barn, and the defendant was there, ( he was living at her father’s house), and exposed his person, and took hold of her, and tried to pull up her clothes, and held her so she could not get away ; that she resisted, and threatened to tell her father.</p> <p>Not long after, on Sunday, in the absence of her father and mother, he told her he wanted to do the same he did at the barn, and chased her round the table and stove into the corner of the room, and took hold of her and exposed his person; that he held her fast and tried to pull up her clothes ; that she resisted and threatened to tell her father, and he let her go. The plaintiff told her mother, and the latter told the father.</p> <p>As to the transaction in the barn, the plaintiff, on her cross-examination testified, “ He first exposed his person; he was two or three feet from me; had not had hold of me up to this time ; took hold of my shoulders and arms with his hands ; don’t remember what I said. I told him to desist; he did not let go ; I told him I should scream, or tell father; I told him it was wrong; he put his hands under my clothes and' raised them; he did not let me go till I promised not to tell.” "</p> <p>The defendant’s testimony was a denial of the whole testimony of the plaintiff.</p> <p>There was no other evidence than that of the parties as to the transactions above related. No claim was made by counsel in their arguments to the jury, or in suggestions to the court, that what plaintiff claimed was done in the premises was in any manner consented to by her.</p> <p>There was further evidence on the part of both parties as to circumstances attending the transaction. The plaintiff testified as to when and the circumstances under which she told her mother. The defendant’s testimony tended to show he worked at the plaintiff’s father’s for a year or more after the latter had been told of the alleged assault, and then left against his will, and went to work for a rival in business in the same town, — Guilford, — and no claim was made against defendant until after lie left as aforesaid.</p> <p>Tbere-was also evidence tending to show the defendant made some admissions. No special requests were made by counsel as to the charge.</p> <p>After illustrating to the jury what constitutes an assault, and an assault, and battery, the court said :</p> <p>“You will say, with these illustrations, whether, on this first occasion that the plaintiff has testified to, you find from the testimony in the case that she has established, by a fair balance of testimony, that the defendant did make any attempt upon her and use any force upon her that was clearly against her will. You have .a right to consider all the circumstances if you find that is established, whether that is so or not. If he merely exposed his person and went towards her, supposing it was in accordance with her wishes, and laid hands on her supposing it was not against her wishes and desire, that would not amount to any assault there. If he did take hold of her against her wishes, it docs amount to an assault and battery, and if he detained her the case is clearly made out. In regard to the second occasion, when ho pursued her, (which would evidently indicate that she didn’t desire him to come near her and take hold of her,) if he did take hold of her, it would amount evidently to an assault and battery. On the second occasion, if he exposed himself, and she knew what his desire was, and he went towards her, and she did not flee from him, and evidently gave him license, perhaps it would be virtual consent. So you will take the testimony and determine whether you are satisfied, by a fair.balance of testimony, that the plaintiff has made out an assault on either of these occasions.”</p> <p>Upon the question of damages the court said in substance, if there was any improper laying of hands upon this plaintiff, the law would imply some damages, at least nominal damages, and the plaintiff would be entitled to recover some damages. In addition to that, you are to add all the damages that would naturally ilow from it, in injury to her person, or prospective. And if you find that he did so wilfully, you have a right to give damages for the indignity and the hurt that is occasioned to her feelings as well as to her person. If you find that this defendant did these acts wil-fully, purposely, then you add that as a matter of damages. And this matter is left in your discretion to say what the damage is.</p> <p>After explaining fully the rules according as the intention of the defendant might have been, the court charged that the jury might allow exemplary damages, and explained under what circumstances exemplary damages were allowable. The court also , explained that the damages recoverable in this case were for the plaintiff, not her parents. The whole charge was made a part of the bill of exceptions. The plaintiff excepted to the charge of the court, except a portion of the charge upon the question of damages. The jury returned a verdict for the defendant.</p>

<p>Assumpsit to recover a sum specified in an insurance policy. The case was tried upon the following agreed statement of facts:</p> <p>On the 21st day of February, 1865, the defendants, on the application of Charles W. Ripley, then the husband of Lucy B. Patch, who is now the wife of said John Patch, and one of the plaintiffs in this suit, assured the life of said Charles W., and executed and delivered to him an endowment policy of insurance for 15000, payable to the said Lucy B., when the said-Charles W. should attain the age of forty years, (he then being of the ago of twenty-four years,) or at the date of the death of said Charles W., should he decease prior to attaining that age, upon the condition, among others, that he pay the defendants the annual premium .of $279 on or before the 21st day of February, in each and every year thereafter, during the continuance of said policy. Said policy is hereunto annexed and made part of this case, and marked “ A.” Said Charles W. paid two annual premiums on said policy, one at the date thereof, and one in one year thereafter. Said annual premiums were paid partly in cash, and partly by two notes, which are hereunto annexed and marked “B” and“C” respectively, and made part of the case. Said notes wore executed and delivered to the defendants on the days when they respectively bear date, by said Charles W. On the 80th day of March, 1867, said Charles W. surrendered said policy to the defendants, who executed and delivered to him another policy of insurance) called a “ paid up policy,” No, 19,543, in lieu of and in payment of said first named policy, for the sum of $625, which last named policy is hereunto annexed and made part of this case, and markedD.” It is agreed that if the written memoranda on the margin of said policy “ D ” are in law a part of the policy, the papers marked “ B ” and “ C ” are the notes referred to therein, and it is agreed that said memoranda were upon said policy when it was executed and delivered. Prior to the sui’render of said policy “ A,” the interest on said notes had been paid up to the 21st day of February, 1867, and at the time of its surrender, and previous to the execution and delivery of said policy “ D,” the interest on said notes was paid one year in advance and up to the 21st day of February, 1808. Just before the said 21st day of February, 1868, the date when the next annual instalment of interest became due on said notes, the defendants sent a notice by mail to the said Charles W., directed to Wilmington, Yermont, it being his last place of residence known to the defendants, informing him when said instalment of interest would become due, which notice was returned to the defendants, it not having been called for by said Charles W. at the post-office in said Wilmington. The said Charles. W., at the time said policy “ A ” was surrendered, and for some time prior thereto, resided at said Wilmington, but when said notice reached there, as aforesaid, lie had changed his residence to Hartford, Connecticut, where he was then residing; but this change of residence was not known to the defendants, they having received no notice thereof. The defendants never gave the said Lucy R. notice that any interest was due on said notes, or demanded payment thereof of her, nor did she have any knowledge or notice that any further payment was required on said policy “ D,” unless such notice is to be implied from the terms of said policy, neither did she or the said Charles W. ever pay, or offer to pay, any interest thereon except as aforesaid.</p> <p>Said Charles W. died on the 25th day of October, 1870, at Montague City, Mass., and proper proofs of his death were made, and forwarded to the defendants, whereupon the defendants notified the said Lucy B. that said policy “ D ” had lapsed and was no longer in force, by reason of the non-payment of the interest on said notes, as required by the terms and conditions thereof, and refused to pay the same. The rights of the parties upon the. foregoing statement l)f facts and papers annexed, are submitted for the judgment of the court. Immediately upon the delivery of policy “ D,” it was passed into the hands of the said Lucy B., by her husband, he saying to her, “ There is a paid up policy for you. You’ll have so much if I am taken away.” And said policy remained in her keeping until the death of her husband, as aforesaid.</p> <p>The court, Ross, J., presiding, in this case having, pro forma, rendered judgment on the above agreed statements of facts, for the plaintiff to recover $625 damages, the defendant excepted.</p> <p>“B.”</p> <p>1189.53. Hartfoed, February 21st, 1865.</p> <p>Twelve months after date, for value received,</p> <p>I promise to pay the Phoenix Mutual Life Insurance Company, or order, one hundred thirty-nine 53-100 dollars, with interest payable annually, in advance, at 6 per cent., it being for part premium due and payable on policy No. 10,603 of said company, on the life of Charles W. Ripley, dated February 21st, 1865, which policy, and all payments or profits which may become due thereon, are hereby pledged and hypothecated to said company for the payment of this note.</p> <p>No. 10-.603. Interest, 18.40. Charles W. Ripley.</p> <p>The other note, called paper “ C ” in the agreed statement, was for 140 02-100 dollars, and was in same terms as paper “ B.”</p> <p>Policy “ D.”</p> <p>Phoenix Mutual Life Insurance Company, Hartford, Conn.</p> <p>No. 19,543. $625.00. '</p> <p>Paid up Policy, in lieu of 10,603 of Feb’y 21, 1865. 2-16 paid.</p> <p>This Policy of Assurance Witnesseth, that the Phoenix Mutual Life Insurance Company, in considera-Interest, tion of the representations made to them in the appli-$16.80. cation for this Policy, and of the sum of ñve hundred and fifty-eight dollars and ten cents, to them in hand paid by Lucy B. Ripley, do assure the life of Charles Annual Pre- W. Ripley, of Wilmington, in the county of Wind-mium, ham, state of Vermont, for the sole and separate use $558.10. and benefit of the said Lucy B. Ripley, in the amount of six hundred and twenty-five dollars, payable to the said Lucy B. Ripley or her executors, adminis-Sum insured, trators or assigns, on the 21st day of February, 1881, $625.00. when the said C. W. Ripley shall have attained the age of forty years, or to her executors, administrators or assigns, should Charles W. Ripley die pre-Age, 24. vious to attaining that age.</p> <p>And the said company do hereby promise and agree to and with the said assured, well and truly to Term, pay, or cause to be paid, the sum assured, as afore-Pay at 40. said, within ninety days after notice and proof of interest, (if assigned or held as security,) and of the death of the said Charles W. Ripley. -</p> <p>This Policy “ D ” contained the ordinary provisions found in policies, among which was the following :</p> <p>And it is also understood and agreed, to be the true intent and meaning hereof, that in case the said assured shall not pay the said annual premiums on or before the several days herein before mentioned for the payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured, or any part thereof; and this policy shall cease and determine.</p> <p>And it is further agreed, that in every case where this policy shall cease or be or become null or void, all payments made thereon and all dividend credits accruing therefrom, shall be forfeited to the said company.</p> <p>This policy was duly signed, and dated March 30, 1865.</p> <p>The marginal clause referred to above is as follows :</p> <p>This policy is conditional on the interest on two notes given in part payment for two premiums paid on No. 10,603 being paid in advance.</p> <p>On the back of said policy was the following inscription:</p> <p> Purchase of Policies. </p> <p>The company will purchase any of its policies, while in force, on which two annual premiums have been paid, and give for them their equitable value; or, if the party prefers, will issue a new paid up policy, for the amount of insurance that the equitable value of the policy surrendered will purchase, thus making all policies nonforfeitable.</p> <p>The policy was a contract with the husband, Charles W. Ripley, and the terms and conditions to which he assented attach to and qualify the policy, and determine the liability of the insurers. And if the policy is regarded as having been procured by his wife, as the result of an agreement made between her and the company, he was the actor in the transaction and represented his wife, the plaintiff, and by claiming the benefit of his acts and of the policy procured by his agency, she necessarily -ratifies and affirms the contract as it was made, with all its terms and conditions. Baker v. The Union Mitt. Life Ins. Co., 43 N. Y., 283.</p> <p>The marginal memoranda on policy “ D” are a part of the policy or contract of insurance. McLaughlin v. Atlantic Mut. Life Ins. Co., 57 Maine, 170 ; Graham v. Stevens, 34 Yt., 166.</p> <p>The notes referred to in the memoranda, together with the policy, make the contract of the parties, and should be read together, if necessary, to ascertain the minds and agreement of the parties. Baker v. The Mutual Life Ins. Co., 43 N. Y., 283, supra; Pitt, Adm’r., v. Berkshire Ins. (7o.,100 Mass., 500.</p> <p>Policy “ D” was forfeited by failure to pay the interest in advance, as provided in the marginal condition. Pitt v. Berkshire Life Ins. Co., 100 Mass., 500; Shaw v. Same, 103 Mass., 254 ; Modsdon, Adm’x., v. Guardian Life Ins. Co., 97 Mass., 144 ; Mc-Allister, Adm’r., v. New Mng. Life Ins. Go., 98 Mass., 558. The policy was as surely forfeited by failure to pay the interest on the notes, as it would have been if the condition had been that the notes should be paid at the time the interest was payable, and there had been failure to pay the notes according to the condition. The difference is only in amount to be paid, hence the legal effect is the same. The interest on these notes was, in legal effect and in express terms, an annual premium to be paid, and in accordance with the well known usage and custom of all insurance companies as to premiums, was to be paid annually in advaucc.</p> <p>The acknowledgement of payment in a policy is always open to explanation by proof of the actual facts. Pitt., Adm’r., v. Berkshire Life Ins. Co., supra; Strong v. Ricker, 16 Vt., 664.</p> <p>The defendants were in no way in fault as to the matter of notifying said Ripley of his instalment of interest becoming due February 21, 1868. Moreover, there was no obligation on the part of the defendants to give any notice.</p> <p>As to this memorandum,, we say, first, it is no part of the contract of insurance. It is inconsistent with and repugnant to that contract. Second, if a part of the policy, or a contemporaneous writing that should be construed with it, it is so vague, uncertain and indefinite in its terms, that it should not bo permitted to override the express and absolute promise contained in the body of the policy. Third, the case shows full performance of this condition. “ Prior to the surrender of policy “ A,” the interest on said notes had been paid up to the 21st of February, 1867, and at the time of the surrender and previous to the execution of policy “ D,” the interest on said notes was paid one year in advance, and up to the 21st day of February, 1868.” This must be the payment called for in this memorandum. It does not say, “ paid in advance an-nuallyi.” Fourth, in point of fact these notes had no legal existence They had been paid out of the profits for the years 1866 and 1867, and should have been surrendered when the policy for which they were given was cancelled.</p> <p>This policy was not a contract with Charles W. Ripley in legal effect. The contract is with Lucy B. Ripley. It is from her that the consideration of 1558.10 moved. Lucy B. Ripley was a stranger to these notes. If these notes had any vitality or validity after the surrender and cancellation of tlie old policy, they were not the notes of the wife plaintiff; nor was it her policy that was pledged or hypothecated for their payment. If the effect of this marginal memorandum was to make the policy conditional upon the payment of the interest upon notes in which she was a stranger, and of the existence of which she had neither knowledge or notice, then I say that before the company can treat the policy as lapsed, and thereby escape payment, they must give her notice that interest was due, and of the consequences of non-payment.</p>

<p>[In Chancery.]</p> <p> Bill in Chancery. Amendment. Corporation. Organization. Gfrant. Evidence. Practice. Notice. Defective Deed. Attachment and levy. </p> <p>This suit was brought in the name only of the complainant corporation, but upon the hearing of the case the chancellor found that said corporation never had a legal existence, and on motion of the solicitor for the orators, granted leave to amend the bill of complaint by bringing into the same as orators, C., B., Gr., and H., and said bill was amended by making C., B. and G-. complainants therein, they being the stockholders in said corporation, and the real parties in interest. Held that it was within the power of the court of chancery to allow such amendment in its discretion; and in the viow which the court took of the evidence as to the organization of said corporation, that discretion was properly oxercised.</p> <p>The act of incorporation in evidence creates certain persons by name, their associates and successors, a corporation by the name of the Vermont Mining & Quarrying Company, with power, &c. This is sufficient to enable the corporation to tako a grant so as to vest in it the title.</p> <p>A corporation may have such an existence by force of the act of the legislature creating it as to give it a capacity to take a grant, beforo it has such an organization and appointment of officers as to enable it to enter upon the transaction of its goneral business.</p> <p>The complainant corporation organized, chose officers, a majority of directors, and a clerk, residing in this State, and paid taxes on the premises in question, but its records were lost, and all this had to bo proved by parol. Held that the proof shows an existing organization.</p> <p>Even if in consequence of the stock being substantially all owned by three persons, they did not practice having formal votes of directors acting as a board, and continue to reelect their officers, but proceeded informally, they did not cease to be a corporation de facto, nor thereby lose their right to the premises.</p> <p>Three stockholders paid the money to K. for the premises, and had the same conveyed to the corporation, and took certificates of the stock of the corporation. Held that 1hey are the equitable owners, oither as equitable beneficiaries by way of a resulting trust, or as stockholders in the corporation.</p> <p>Whether evidence filed before now parties are added by amendment can be read on the hearing after such amendment, depends upon the circumstances of the case and the issues involved. The issues being the same after the amendment as before, the evidence filed before the amendment, under the circumstances detailed in the opinion, should not bo excluded.</p> <p>The evidence having been read in the court of chancery without objection, it is too lato to object to it in this court.</p> <p>Notice to the attorney of the Windham County Bank, of the defective deed of the premises in question from It. to the complainant corporation, before such attorney caused said premises to bo attached in a suit in favor of the bank against K., as his property, is notice to the bank. Notice to the cashier of the bank, while acting for the bank in procuring the attachment, is also notice to the bank.</p> <p>Actual notice to the bank, of such defective deed, (although defective in having but ono ‘witness,) was notice of whatever right the grantee might have to a perfect deed from IÍ. Such defective deed is evidence of an agreement to execute a valid deed, and a court of chancery would compel him to execute it.</p> <p>The bank, by its attachment and levy, stands in no better condition in respect to' title than K. did, and is under the same obligation to convey the title and intorest acquired by its levy that rested on K.-Jbefore the levy was made.</p> <p>It is immaterial whether or not the bank had notice that complainants B., O. and G. wore stockholders in the complainant corporation at the time of the attachment, or had any interest in the premises, either as stockholders or otherwise. It had notice of the deed on record from K. to said corporation, and that was sufficient.</p> <p>The deed executed by K. to the complainant corporation was not a mortgage, and the bank has no more right to redeem than it would ¡have had the deed from K. been perfect in its execution.</p>

This was an action of ejectment. Plea, the general issue, and trial by jury, September term, 1871, Ross, J., presiding. The plaintiff, to maintain bis claim of title, gave in evidence various deeds and office copies.

TROVER, for the conversion of a pair of oxen. Plea, the general issue, and trial by the jury at the April term, 1871, Barrett, J., presiding. The taking was admitted ; defendant justified as constable of Londonderry, under sundry writs of attachment against the plaintiff. The important question in the case was whether this pair of oxen were exempt from attachment, as the only pair of oxen the plaintiff then owned.

TRESPASS for taking personal property. Plea, the- general issue and notice. Trial by the court, December term, 1871, Barrett, J., presiding. The plaintiff proved the taking and damage, and rested. The defendant justified as collector of school district No. 5, in Plymouth. It was conceded that said district was legally organized, and that the plaintiff had a legal grand list in said district for the year 1869.

<p>Assumpsit. Plea the general Issue, and discharge in bankruptcy. Replication, a new promise subsequent to said discharge. Trial by jury, December term, 1871, Barrett, J., presiding.</p> <p>On trial the plaintiff's presented an account for boarding defendant, his wife and child, in 1867 and 1868, amounting to $288.79. The five first items of the account, amounting to $224.12, accrued previous to defendant being adjudged a bankrupt; the balance accrued subsequent thereto. To prove the new promise relied upon, the plaintiff, Asa T. Barron, was produced as a witness to testify to said new promise, to which the defendant objected, upon the ground of his being a party, but the court overruled the objection- and allowed him to testify to the same, to which the defendant excepted.</p> <p>The plaintiffs also called three witnesses to testify to conversations which they had held with the defendant, since his discharge in. bankruptcy, wherein as was alleged the defendant admitted that he had promised since his said discharge to pay the plaintiffs their account against him ; to this the defendant objected on the 'ground that parol evidence was inadmissible to renew a liability already discharged by law, and that that portion of the plaintiffs’ account, discharged by defendant’s discharge in bankruptcy, could only be renewed in writing and signed by the person to be charged therewith, but the court overruled the objection and permitted the witness to testify as above, to which the defendant also excepted. Verdict for the plaintiff for the full amount claimed.</p>

<p> Evidence. Practice. Judgment. Debt. Go-Debtors. Contribution. </p> <p>Where the plaintiff without objection allowed inadmissible testimony to be introduced, which tended to establish a material fact, the defendant had the right to have the testimony considered by the jury.</p> <p>One of several judgment debtors could not become the owner of the judgment in any manner so that he would have the right to collect it in the name of the judgment creditor of the other co-judgment debtors, for as soon as he becamo the owner of the judgment it was satisfied and extinguished.</p> <p>The remedy against the co-judgmcnt dobtors would not be by suit on the judgment, but for contribution toward the money paid by him to extinguish the debt, and he could convey *no greater right to another than he himself could have asserted.</p>

Assumpsit upon an award. Plea, the general issue, and trial by the court, at the December term, 1871, Barrett, J., presiding. The award declared on was given in evidence, and is as follows : “ AWARD. “ We the undersigned, Jonas Lamson, Samuel Stone, and B. F. Hilliard, to whom are submitted all matters in difference between Wm.

Trial by tlie court, May term, 1871, Barrett, J., presiding. The only question made on the trial was whether said pauper was likely to become chargeable. On this issue evidence was given by both parties, pro and con, tending to maintain their respective sides of said'issue.

<p>Action of covenant for breach of warranty against incum-brances. ' Plea, performance. This cause was referred under rule of the county court, and the referee reported as follows :</p> <p>It was conceded that Abraham Sawyer died, seized of the land and real estate described in the plaintiff’s declaration. Said Sawyer by his last will devised the land in question to the First Baptist Society in Chester. On the 5th day of February 1858, Nahum - Horton, executor of said Sawyer’s will) pursuant to a license from probate court, sold, for the purpose of paying debts, about one half acre of land adjoining the premises described in the plaintiff’s declaration, to Chester Marble, with the buildings thereon. The deed of said Horton to Marble, after describing particularly the half acre of land, contains the following clause: “ And a 'privilege of a foot-pass through the other half of said garden to pass to said mill, where the same has heretofore been used.”</p> <p>The foot-pass above mentioned leads across the premises now owned and occupied by the plaintiff, distance about six rods to the highway, and is the only incumbrance set forth in the declaration in this case.</p> <p>The foot-pass aforesaid is upon and across land not sold by Horton, executor of Sawyer, to Marble, and in Horton’s return of sale to probate court, no mention of the sale of the “ foot-pass” is made, and his return of sale was never recorded in the town cleric’s office in Chester.</p> <p>The premises described in the plaintiff’s declaration consist of a small dwelling-house, barn and grist-mill, the house situated between the mill and the half acre of land sold by Horton to Marble.</p> <p>The first Baptist Society relinquished its claim to the lands in question to the heirs of Abraham Sawyer, and they conveyed the same to Alvin W. Davis, by deed of warranty. Davis conveyed the same to the defendant by deed of warranty. The defendant conveyed the same to the plaintiff by deed of warranty. The plaintiff conveyed the same promises by deed of warranty to Chester Marble. Chester Marble conveyed the same premises bade to the plaintiff by deed of warranty. Chester Marble conveyed the half acre of land and buildings purchased of Horton, executor of Sawyer as aforesaid, to Lorenzo F. Wood by deed. The plaintiff went into the possession of the premises described in his declaration at the time he purchased the same of the defendant, September 1, 1865, and was in possession at the date of the writ in this case.</p> <p>That his possession was never interrupted or disturbed until since his purchase of Marble, when said Lorenzo F. Wood first asserted his right to use the “ foot-pass ” to the premises of the plaintiff, since which time said Wood has continued to use the same and claims the right to do so. It was claimed by the defendant that Horton, executor of Sawyer, had no right under his license to iucumber the lands not sold by selling a foot-pass over and upon them, and also for the reason that the lands incumbered by this “ foot-pass ” were specifically devised, and that if he had such right, his sale of it was void, for the reason that he did not make a return of such sale to the probate court, and cause the same to be recorded in the town clerk’s office in Chester. It was also claimed by the defendant that the right to the “ foot-pass,” if any such right existed, was a mere personal right and not assignable. I find the fact that during the lifetime of Abraham Sawyer, certain tenants and employees of his, who occupied the house now occupied by Wood, passed across land now owned by the plaintiff where the foot-pass now is, but never under any claim of right to do so, and I submit to the court for its determination as matter 'of law, the question whether under the conveyance of Horton, executor of Abraham Sawyer, to Chester Marble, and the facts contained in this report, the “ foot-pass ” in question is a lawful incumbrance upon the land conveyed by defendant to the plaintiff. The plaintiff called several witnesses for the purpose of giving their opinions as to the amount of damage resulting to the plaintiff from such incumbrance, which testimony was objected to by the defendant as incompetent, but admitted.</p> <p>If the court shall.be of the opinion, from the foregoing facts, that a valid incumbrance exists upon the plaintiff’s land, and the evidence as to the damage was correctly admitted, then I find the damage from the breach of the defendant’s covenant with the plaintiff to be the sum of three hundred and fifty dollars.</p> <p>If on the contrary, Horton, executor of Sawyer, had no right to encumber the land now owned by the plaintiff with the foot-pass, or if he had such right, but failed to comply with the statute requirement, in making his sale, then I find that the defendant has kept and performed his covenant with the plaintiff.</p> <p>‘ The county court, May term, 1871, BARRETT, J., presiding, rendered judgment for the defendant on the report, to which the plaintiff excepted.</p> <p>The foot-pass conveyed by Horton, Ex’r of Sawyer, to Marble-, being a prior conveyance and an older and better title than defendant’s deed to plaintiff, or any of defendant’s grantors, is an incumbrance. Williams v. Weatherbee, 1 Aik., 233 ; Boyd v. Bartlett, 36 Vt., 9; Clark v. Conroe’s estate, 38 Vt., 469; Russ v. Steele, 40 Vt., 310 ; 3d Phil. Ev., 458 ; Kellogg v. Ingersoll, 2 Mass., 97.</p> <p>Covenants, where any estate passes, run'with the land, and are intended for the benefit of the ultimate grantee in whose time it is broken. It not only extends to tbe possession but to tbe land and tbe estate in it. Williams v. Weatherbee, 1 Aik., 233 ; Keith v. Day, 15 Vt., 660 ; Townshed v. Morris, 6 Oowen, 127 ; 4 Kent’s Com. 573, 10th ed. ; 471 old ed.</p> <p>A right of way is an incumbrance and an interest in land, and passes with, and is appurtenant to tbe premises deeded, and is embraced in tbe covenants contained in Marble’s and Wood’s deeds, and is to them and their assigns forever. Therefore it is assignable and carries with it the right to use the soil for that purpose. Such right of way has the same force and legal effect if conveyed as an appurtenance to the premises. Butler x. Grale, 27 Vt., 739 ; 3d Kent’s Com., 551; Buss v. Steele, 40 Vt., 310; 2d Greenl. Ev., §§ 657, 659 ; White v. Crawford, 10 Mass., 183 ; Kent v. Waite, 10 Pick., 138 ; Doane v. Broad St. Ass'n, 6 Mass., 332 ; Story v. Odin, 12 Mass., 157.</p> <p>Covenant is broken by showing any interest in a thjrd person which lessens the value. It is for quiet enjoyment, as an assurance against the consequences of a defective title, and of any disturbance thereon. Kowell v. Richards, 11 East, 633 ; Park x. Bates, 12 Vt., 387.</p> <p>The executor had full authority to sell the estate together with all the privileges and appurtenances thereunto belonging. The license was regular and in strict conformity to the will and the statute requirements. It was granted for the purpose of paying-debts against the estate.</p> <p>Plainly the executor had authority by his license to sell $1442. 89 worth of the real estate. He could have sold the entire other half of the garden, or he might in the exercise of his -own judgment have sold the fee fully in the foot-pass to Marble. He could then, instead of such sale, sell the lesser estate in the lands occupied .as a foohpass over the other half, which let Marble out to the public highway and also to the mill. It is not a personal right merely, as by the terms of the deed it is a part of and goes with the whole premises conveyed in the deed, not only to Marble, but to his heirs and assigns forever.</p> <p>The breach of defendant’s covenant to plaintiff accrued at the instant of the delivery of the deed to him. Plaintiff had a legal right to call upon any one of the grantees prior to himself, who stand in privity of estate with the defendant, for indemnity and satisfaction for the breach of this covenant. Russ v. Steele, 40 Yt., 810 ; Tyler v. Russ, 17 Mass., 586; Boyd v. Bartlett, 86 Yt., 9 ; 4 Kent Com., 576, tenth ed., 472 old ed. ; Smith v. Perry, adrrCr., 26 Yt., 293 ; Biclef or d v. Page, 2d Mass., 455 ; Wyman v. Ballard, 12 Mass., 304; Parle v. Bates, 12 Vt., 387, Williams J.; Butler v. G-ale, 27 Yt., 746, Redfield, Oh. J.</p>

<p>. Town Bounty. Re-enlisted Veteran. Demand and Interest. ,</p> <p>A soldier who, while in the service from October, 1861, re-enlisted in the same company and regiment in December, 1863, is evidently a veteran re-enlisted in the field, within the vote of the defendant in this case.</p> <p>A vote to pay a bounty to a soldier already in the service is upon sufficient consideration, and cannot be rescinded by the town without the consent of the soldier.</p> <p>No demand before suit brought is necessary to entitle the soldier to recover under the vote in this case, but no demand being shown, interest is only allowed from the date of the service of the writ.</p> <p>The practice of the county court in sending up to the supreme court the evidence used on trial instead of the facts found by the court, commented upon and condemned.</p>

<p>Assumpsit. The cause was referred by agreement of parties, and the referee reported the following facts :</p> <p>That at the annual town meeting in March, 1869, the defendant was duly elected “ agent to prosecute and defend suits ” for the town of Cavendish, and that he had held the same office the year previous; that March 16th, 1869, this plaintiff brought a suit against tbe town of Cavendish, to recover damages claimed to have been sustained by him, on account of an alleged insufficiency of a highway in said town, which suit was returnable in the town of Chester, aforesaid, before Amos E. Heald, Esq., a justice of the peace, on the 29th day of April, A. D., 1869; that sometime between March 22d, 1869, (the date of service of said writ against Cavendish,) and the 12th of April following this, defendant went to Chester, and had conversation with the plaintiff in regard to a settlement of said town suit; that the plaintiff was then informed that defendant was agent of Cavendish as aforesaid, and that he came to see him about the pending suit as such; that this conversation resulted in an offer on the part of the plaintiff to settle his demand in said suit for sixty dollars, which offer was not acceded to by defendant; that on said April 12th, this defendant wrote the plaintiff a letter from Saratoga Springs, in New York, offering him fifty dollars, and costs not exceeding five dollars, to settle said suit, which letter the plaintiff answered by letter soon after, offering to settle his suit for sixty dollars, and pay his own costs. It does not appear that defendant received this letter; that April 26th, the defendant wrote another letter to the plaintiff, which the plaintiff received the night before or the morning of the return day of said suit against Cavendish; that upon receipt of this letter the plaintiff notified Justice Heald of the withdrawal of his suit against the town ; that the same was “ dropped,” and that he need not go over to the court place to try the same. That on the return day of said writ, Colonel Seaver, then one of the selectmen of defendant town, appeared on behalf of defendants, to defend the suit, he having previously been directed by Mr. Wright, this defendant, to take care of the same; that the house where the court was appointed being closed, the justice, the plaintiff and his counsel, and Colonel Seaver, assembled in a neighboring barn, and a discussion was had about the suit, plaintiff claiming that it was settled, and Colonel Seaver claiming that agent Wright had no authority to settle it, and that he was there to defend for the town, whereupon an entry was made upon back of the writ in the following words to wit: “ April 29th, 1869, continued by agreement of parties until the first day of May, A. JD. 1869, at two o’clock in the afternoon. T. O Seaveií, for defendant.</p> <p>Amos E. Heald.”</p> <p>The same being made by Colonel Seaver, and that said Justice Heald, who signed his name to said continuance, intended to sign the same officially.</p> <p>That then and there, Mr. Fletcher, the plaintiff’s attorney, wrote a letter to Mr. Wright, advising him of the plaintiff’s acceptance of the terms proposed in the letter of the 26th, and that suit would be dropped as requested in the same ; that upon said first day of May, the case was again called, and a non-suit was entered on the writ by the justice; that on the Monday following, the plaintiff, by his said attorney, notified the defendant that he had accepted his offer of the 26th, dropped the suit and demanded his 160.00 ; that defendant received this notice and demand the same day at Cavendish ; that soon after the above named transaction, the suit at bar was brought, and is based upon the personal guarranty of the defendant, contained in his letter of the 26th of April, above referred to and attached ; that this letter was written without the knowledge of the selectmen of Cavendish, the defendant believing that he had the legal right as town agent to settle the suit, and that the town would be bound by his settlement; that the selectmen repudiated the settlement as soon as it came to their knowledge. It does not appear that the defendant expressly withdrew or recalled the offer made in the letter of the 26th at any time ; that the defendant was set in the grand list in said Cavendish, in the year 1869, and was a taxpayer there that year.</p> <p>At the suggestion of plaintiff’s counsel the referee submitted the following facts:</p> <p>1. That the plaintiff in accepting the offer of the defendant contained in the letter of 26th April, (attached,) did so relying on the personal liability of the defendant for the payment of the $60.00:</p> <p>2. That this suit, on the return day before the justice, was continued beyond a term of the county court, and that plaintiff consented to such continuance upon the representation of the défendant that the same would probably be settled; that he wanted time to lay the matter before the town, as they would be more likely to pay it than if he paid it first.</p> <p>3. It is found that neither party in the suit against the town had witnesses present before the justice, either on return day, or the day to which the same was continued.</p> <p>Also the following findings of fact on request of defendant’s counsel:</p> <p>It appears that defendant not receiving a reply on Wednesday, as requested in his letter of the 26th, went to Cavendish either on Thursday April 29th, or on Saturday, May 1st; saw Colonel Sea-ver, and advised Mm that he must attend to the suit, and that on this occasion Colonel Seaver informed defendant that the selectmen did not sanction his offer of settlement with Clay.</p> <p>The letter .referred to in the report, was as follows :</p> <p>OFFICE OF THE SARATOGA STAR SPRING Co., \ Saratoga Springs, N. Y., April 26th, 1869. j</p> <p>Mr. O. P. Clay,</p> <p>Bear Sir : — I have concluded I would accept your offerjand pay you the ($60) sixty dollars, rather than have any more trouble in the matter. I a few days since directed the first selectman to go down and see you and pay the amount, and if he has not been down please withdraw the suit or let it go, as I cannot be there that day, and I shall be at home Saturday and w-ill see that you have the money. Of course this pledge will be sufficient guarantee that I shall pay it. Please write me by Wednesday’s mail. Yours truly,</p> <p>Melvm Wright.</p> <p>Upon the report being filed, the county court, at the May term, 1871, Barrett, J., presiding, rendered judgment on the report for the plaintiff, to which defendant excepted.</p>

ActioN on ti-ie case, to recover damages for the revocation of a submission to arbitration of a cause pending between the parties.

<p>Audita querela. Plea, the general issue. Trial by jury, December term, 1871, BaRREtt, J., presiding.</p> <p>The plaintiffs gave evidence tending to prove all the material facts alleged in the declaration, and rested.</p> <p>The defendant then proved, by Mr. Collamer, that he was attorney of the defendants in the suit named in said declaration, whoa it was pending in the county court, and appeared and answered to the same at said December term, 1870, when said judgment was rendered, and by arrangement with attorneys of the plaintiffs in said suit consented to having said judgment rendered in said suit, and it was rendered in pursuance of said consent. The presiding judge remembered and stated on the trial, after the testimony of Mr. Collamer had been given, that the judgment was rendered by the consent given in open court of Mr. Collamer, as above stated, to which Mr. Collamer, while on the stand, assented. Mr. Collamer, after having given his testimony in chief, from which the above facts were found, stated, in answer to a question by Mr. Paul for plaintiffs, that he only appeared for Mr. Barron in said suit when judgment was rendered as aforesaid; didn’t know as he knew Mr. Abbott.</p> <p>Mr. Collamer, at said December term, 1870, did not intimate or profess that he appeared only for Mr. Barron, but he answered to the case and took part in what was done in it ostensibly as attorney for the defendants in that case — the same being the plaintiffs in this — and the court understood it accordingly.</p> <p>The declaration is as follows ;</p> <p>That heretofore, to wit: on the 11th day of March, A. D. 1870, said Benjamin F. Dutton of Boston, -aforesaid, commenced a suit at law against the said Josiah Abbott of Stewartstown, in the county of Coos, and state of New Hampshire, and the said Asa T. Barron of Hartford, county of Windsor, aforesaid, declaring against them severally in assumpsit in the general counts, claiming as damages the sum of one hundred and ninety dollars, which said writ was signed bv Luther Pease, a justice of the peace within and for said county of Windsor, and made returnable before him a.t the office of S. E. & S. M. Pingreo, in said Hartford, on the third Saturday of April, A. D. 1870, at nine o’clock in the forenoon. Said Barron and Abbott were not described or set up in said writ as partners, and no service of the same was ever made on said Abbott and Barron as individuals or partners. Said Barron accepted service of said writ, but said Abbott did not, and had no legal notice that any such suit was pending against him, so as to give him an opportunity to appear and defend said suit. After the issuing of said writ and before the return day of the same, the plaintiff served a citation on said Barron, one of the defendants aforesaid, bnt not on said Abbott, the other defendant, to take the depositions of witnesses in said Boston, to be used in said suit; the names of said witnesses are unknown to your complainants. Said Barron notified the plaintiff’s attorneys, the Messrs. Pingreo, that he did not dispute the claim, and that they need not take any depositions in the suit. This notice was given three or four days before the time appointed for the taking of said depositions, but the plaintiff’s attorneys aforesaid did not give any heed to said notice, but proceeded to take the depositions, and in taking them incurred great cost and expense, to wit: twenty dollars.</p> <p>At the trial of said suit before the justice Luther Pease, the defendant Barron appeared and made a tender to the plaintiff in said suit, or his said attorneys, for the sum of one hundred and fifty-live dollars; a sum sufficient to cover all claims the said Dut-ton had against the said Barron and Abbott, together with all the interest and cost that had accrued on the said debt, except the cost of taking the depositions aforesaid in Boston as aforesaid, and the magistrate at said trial did not render any judgment at said trial, nor pass upon the sufficiency of the tender, or upon the question of costs, as the plaintiff gave judgment for the defendants in said suit for their costs, without giving the magistrate an opportunity to pass upon either of said questions, but claimed an appeal to the county court, next to bo held at Woodstock, within and for said county of Windsor, on the fourth Tuesday of May, A. D. 1870, which said appeal was duly entered in said Windsor county court, at said May term, 1870, and said suit was continued to the December term of said Windsor county court, when the said Dutton obtained judgment against said Asa T. Barron and said Josiah Abbott for the sum of one cent damages, and the further sum of thirty-five dollars and sixty cents costs, as appears by the docket and taxation of the clerk of said Windsor county court; and the said Asa T. Barron and Josiah Abbott, partners, under the name and style of J. Abbott & Co., as aforesaid, further say that during the December term of said court the said Asa T. Barron, one of the defendants, was sick, and unable to attend court, aud unable to see his counsel and give him the necessary information in regard to the condition of said suit, or the facts appertaining to the same, and had not informed his said counsel, William Collamer, Esq., that a tender had been made and lhat the same had been accepted by said Dutton, or his said attorneys, nor of any of the principal facts relating to said suit, by reason of which the said judgment was erroneously and unjustly obtained against said Barron and Abbott. And afterwards, on the 19th day of December, A. D. 1870, the said Dutton obtained from said Windsor county court an execution for the sum of one cent damages, and the further sum of thirty-one dollars and ninety-six cents cost, and the same was duly signed by George B. French, clerk of Windsor county court, which execution the said Dutton put into the hands of David Wright, constable for the town of Hartford, in said Windsor county, directing him to collect and levy the same on the property of said Asa T. Barron, and the said Wright now has said execution, and as constable aforesaid is demanding the amount of said judgment, of said Barron, and threatens to levy the same on the property of said Barron, if the same is not immediately paid.</p> <p>And the plaintiff also alleged that said execution was wrongfully, oppressively and unjustly issued, for reasons which wore set forth in the declaration.</p> <p>The court directed a verdict for the defendant, to which plaintiff excepted.</p> <p>The manner in which process shall be served on parties is clearly pointed out in the statutes, and unless the statutory provisions are strictly complied with in making the service, the whole subsequent proceedings are defective and will be vacated by a writ of audita querela. Whenever a judgment has been fraudulently obtained, as in the case at bar, where the defendant, Abbott, had no opportunity to appear and defend, and when execution has unjustly issued through fraud, the whole proceedings will bo vacated by a writ of audita querela. Stamford v. Barry, Administra-trix, 1 Aiken, 321; Bodge v. Hubbell, 1 Vt., 491; Stone v. Seaver, 5 Vt., 549; Barrett v. Vaughan, 6 Vt., 243 ; Hadlock v. Olemenl, 12 N. EL, 68 ; Lovejoy v. Webber, 10 Mass., 101.</p> <p>The rendering of the judgment without personal notice to Abbott, and the issuing of the execution on said judgment, without giving a bond, or entering into a recognizance for a writ of review, was irregular, and the whole proceedings should be set aside. Mr. Barron could not bind Abbott, or in any manner prejudice his rights, by his acts or agreements in regard to the suit; a defendant has no right to employ counsel, or to enter an appearance lor a co-defendant, without express authority. Marvin v. Wilkins, 1 Aikeu, 107 ; Whitney Titus v. Silver, 22 Vt., 634; Johnson v. Muiyhy, 42 Vt., 645.</p> <p>The appearance in court to answer to a suit, either in person, or by attorney, is a matter of record, and unless the records show an appearance, parol proof is admissible to show for whom an attorney answered. In suits where there are two defendants, one of whom appears, the other, having no notice of the pendency of any suit against him, does not appear, the latter should not have his rights abridged by the acts of the former, when the attorney himself swears he only appeared for one. Blood v. Crandall, 28 Vt., 896 ; Spaulding et al. v. Swift, 18 Vt., 214; Kidder v. Hadley, 25 Vt., 544; Newcomb Sp Brown v. Peck Pomroy, 17 Vt., 302.</p> <p>The tender made by Barron of an amount sufficient to cover the entire claim and cost that had then accrued, as a tender at law might not be good, as the same was coupled with a condition ; but when the same was made with the express understanding that if accepted it must be in full payment of the debt and costs, and was accepted with that understanding, it was a payment of the claim and a perfect bar to any farther proceedings on the part of the plaintiff in that suit; and when the attorney, who it is claimed assented to the rendering of the judgment, was ignorant that such a tender had been made, and when judgment was obtained in the manner set forth in the exceptions, it is so far fraudulent that the proceedings should be set aside by a writ of audita querela. Me Glim v. Billings, 16 Vt., 329; Cole v. Champlain Transportation Co., 26 Vt., 87; McDaniels v. Bank of Rutland et als., 29 Vt., 230 ; Preston v. Grant, 34 Vt., 201; Towsley v. Healey, 39 Vt,522.</p> <p>The plaintiff, Dutton, in the justice suit, having appealed from the decision of the justice to the county court, and in that court recovered only nominal damages, has taken execution for the sum of 31.96, his entire costs. The whole proceedings were a direct violation of the statute, and are a sufficient reason for sustaining this audita querela. General Statutes, ch. 125, §§ 18 and 20.</p> <p>The power of an attorney is confined to the prosecution of a suit, and he has no authority to compromise a suit without express authority from his client. Vail v. Conant, Adm’r, 15 Vt., 314; Paddock v. Colby Newcomb, 18 Vt., 485.</p>

Petition for the foreclosure of a mortgage. The petition set up the execution of the mortgage sought to be foreclosed, and the note secured thereby by the defendants to Charles II.

Bill in oi-ianoery. The orator alleged in his bill that in 1860 he became the owner of a certain farm in Cavendish, of about the value of three thousand dollars, by virtue of the last will and testament of his father, David Bent, with some personal property thereon, and this was nearly all the property he then possessed; that he occupied and carried on said farm till about 1864, when, his health being very poor, he was unable to support his family from said farm, and after…

<p>Appeal from the probate court. The case was referred to a commissioner, wbo reported as follows:</p> <p>There was presented on the part of the plaintiff estate, which was a testate estate, by the executor of the will, the note hereto annexed, and also an account on demand, for the payment of a colt, and items for money lent. Willard W. Low, against whose estate tbe claims are presented, by the executor of Jolm A. Morse, was a son-in-law of said John A. Morse, having married his daughter, who is the widow of said Willard W. Low, and admin-istratrix of his estate. In respect to the execution of the note no question was made, but it was insisted, on the part of the defendant estate, that it was given for money furnished by said John A. Morse to the said Willard W., upon and in pursuance of agreements, conditions and circumstances, as hereinafter mentioned. John A. Morse, being a man at that time advanced in years, was desirous that Mr. Low should take the money, and that he should receive the note of the said Willard W. therefor, with interest payable annually, and if he, the said John A. Morse, should need or require the interest from time to time, to support or maintain and provide for himself, or any other person dependent upon him, during his life, he, the said Willard W., was to pay the same ; but if the interest, or any part thereof, should remain unpaid at his, the said John A.' Morse’s decease, then such part and the whole principal should be and remain the sole property of the said Willard W., without account to any person whomsoever, and that the same was not to be accounted for as a part of the share of his estate that his daughter, Mrs. Willard W. Low, might have therein either as heir or legatee. This offer to prove, or to give evidence tending to prove, the defense above insisted upon, was objected to by the plaintiff estate, for the reason that it would in effect be .admitting parol testimony, to change, alter, and affect the tenor of the note, and also for other reasons. This objection the commissioner overruled, and admitted the testimony. Among other testimony and evidence offered by the defendant estate to establish and substantiate the defense as above set forth, the defendant .estate presented the widow of the said Willard W. Low, and ad-ministratrix as above stated, as a witness to testify in respect to the same. To her admission as a witness, and also to her testimony generally, the plaintiff estate objected, and the commissioner overruled the objection and received the testimony. Her testimony tended to show that the note was given under the circumstances, understandings, conditions, and agreements before mentioned, and as claimed by the defendant' estate. Her testimony was also received in respect to all the items in the account.</p> <p>The commissioner reported that he is satisfied from all the evi ■ deuce produced before him that said note was given with the understanding and agreement, and under the conditions before mentioned, as claimed by the defendant estate, and that all that part of the note, be the same either principal or interest, remaining unpaid, was not to be collected or paid by said Willard W. Low, after the decease of tbe said John A. Morse, to any person whomsoever, and was to be and remain the property of said Low, without further account, and he therefore disallows the claim for said note. The commissioner, however, informed the court that he does not feel himself justified to come to this conclusion without the testimony of the said Mrs. Kate M. Low, and without this testimony he must find that the note is still due and unpaid. That is to say that, in his opinion, the evidence in the case is not sufficient to defend the claim made upon and by virtue of said note, without her testimony.</p> <p>In respect to tlie item in the account, charged for “ Colt Jim,” the commissioner reports that it was a horse raised by the said John A. Morse, and by him delivered to the said Willard W. Low, as a gift or present to his daughter, the said Kate M. Low, and was so intended at the time, but that fact the commissioner cannot find, if the testimony of the said Mrs. Low rejected and decided to be inadmissible by the court. The matter will stand in the same manner as is before stated in regard to the note, and if the court should be of the opinion that the testimony of Mrs. Low should not have been received, then the commissioner would allow for the colt as charged in the account. As to the items of the account for cash lent, or loaned, the commissioner disallows the same, as the testimony of Mrs. Low tended to show that the same had been paid or settled for, but the commissioner finds that the same ought not to be allowed, although the testimony of Mrs. Low should be rejected by the court. All the proof which was presented to the commissioner to substantiate these charges was merely some memoranda of account in a small book, kept by the said John A. Morse, partly as an account book, and partly as a diary. To admit that, and use the same as all the evidence there was in the case, with which to charge the defendant estate, both parties to the account or transaction being dead, seems to the commissioner to leave the matter in too vague and unsatisfactory condition, and he therefore disallows them.</p> <p>These items, for money loaned, were allowed by the commissioner on the estate of Willard W. Low in favor of plaintiff estate, and the plaintiff estate objected to the right of defendant estate to now contest those matters before this commissioner, the appeal having been taken by the plaintiff estate only.</p> <p>The following is a copy of the note referred to :</p> <p>“ West Hartford, March 25,1865.</p> <p>“For value received, I promise to pay John A. Morse, or bearer, five hundred dollars, on demand, and interest annual.”</p> <p>(Signed) W. W. Low.</p> <p>The court, Barrett, J., presiding, at the December term, 1870, rendered judgment, pro forma, for the defendant upon the report, to which the plaintiff excepted.</p> <p>The note is collectable, for it is a legally binding written contract, and cannot be altered by parol evidence.</p> <p>Par. Contracts, vol. 2, pp. 60, 62; 5 Yt., 152, Bradley v. Anderson. “ Parol evidence is inadmissible for the purpose of altering the legal operation of an instrument by evidence of an intention to that effect which is not expressed in the instrument.” Farnham v. Ingham Frizzle, 5 Yt., 514 ; Bradley v. Bentley, 8 Vt., 243 ; Pingry v. Watlcins, 17 Yt., 879 ; Lowry v. Adams, 22 Yt., 160 ; Brown v. Sitcheoeh, 28 Yt., 453; Norton v. Downer, 31 Yt., 407 ; Bradley v. Pilce, 34 Yt., 215.</p> <p>The charge for “colt Jim” should be allowed to the plaintiff, for Mrs. Low, being the party to the contract, cannot be allowed to testify, the other party, Mr. Morse, being dead. Gen. Statutes, ch. 36, §24.</p> <p>The plaintiff alone appealed; and from the judgment or decree in favor of the plaintiff in the action on book, no appeal was claimed by the defendant. In appeal from decisions of commissioners appointed by probate court, only such decisions are opened as are against the party appealing. Here are really two actions : one in assumpsit on the note, and the other on book for the “ colt ” and 'the “ money loaned.” In the former the plaintiff was defeated and appealed, which is this action. In the other the plaintiff recovered a balance, i. e., the amount of the money loaned, and neither party appealed.</p> <p>cited Fdw. Adams v. Adm'r of Friend Adams, 21 Vt., 162; Greenleaf on Ev., vol. 1, § 338, (10th ed.) ; Williams v. Baldwin, 7 Yt., 503 ; Session Laws of 1852, No. 13.</p>

Ejectment for certain land in Hartford. Plea, the general issue, and trial by jury, May term, 187-1, Barrett, J., presiding.

Habeas Corpus. The relator brought his action of slander against G-. P. Spaulding, and the writ was served on the 8th day of September, 1871. On the 11th day of said September, Spauld-ing caused a citation to be served on Foster to attend on the 14th of September to the taking of his (Foster’s) deposition, to be used in said cause, and Foster was duly summoned as a witness, and his fees as a witness were duly tendered.

Book acoouNT. The auditor to whom the case was referred reported that the first item, use of oxen, $2.50, and third item, some wood, $1.67, of plaintiff’s account, amounting, with interest, to $5.40, were matters of deal between the parties, on the part of the plaintiff in his own right; that the second item, for a pair of shears, 40 cents, and the fourth item, a quantity of hay, $88.00, were matters of deal on the part of the plaintiff as executor of the last will and…

Assumpsit. Plea, the general issue and notice. Trial by jury, at the December term, 1871, Barrett, J., presiding.. Verdict for the plaintiff. This suit was brought on a note which one Fenno, of White River Village, in Hartford, held against Henry' F. Porter, and which said Fenno had assigned to the plaintiff.

Assumpsit on award. Plea, tbe general issue, and trial by court at tbe December term, 1871, Barrett, J., presiding.

Debt on a probate bond, duly executed by the defendants to the judge of probate of the county of Sullivan, New Hampshire.

Petition for tbe foreclosure of a mortgage. Held: by virtue of having paid them and owning them himself. The payment of the bank decree by Mr. Flint was no extin-guishment of the same.

<p>[In Chancery.]</p> <p> Corporation. Railroad. Chancery. Annual Meeting of Stockholders. Interest. Vi. Mass. R. R. Jurisdiction. </p> <p>A railroad corporation has authority to stipulato that each stockholder shall be entitled • to interest on sums paid on stock subscriptions while its road is in proooss of construction, till it is completed and goes into operation, payable whenevor the surplus earnings shall enable it properly to do so.</p> <p>This arrangement for the payment of “interest dividends” is equitable and just; and such payment, made only out of the surplus earnings nob needed for the payment of debts of the corporation or for the prosecution of its business, does not interfere with the rights of creditors nor contravene any principle of public policy.</p> <p>The vote to pay such intorost was passed at an annual meeting of the stockholders, the subject not being specially named in the notice calling the meeting. Held, without deciding whether the corporation had the right to pass such vote, that the defect, if any, could be cured by subsequent ratification.</p> <p>The subsequent action of the corporation in paying the interest to stockholders in pursuance of said vote, and the corporation and directors subsequently voting to ‘issue certificates for tho payment of said intorest, and the action of the treasurer in issuing such certificates, constitute a ratification of such vote.</p> <p>One of the by-laws of the defendant corporation provides that “at the annual meetings any matter may be acted upon within tho power of tho corporation.” Held therefore that the proceedings of the corporation, terminating in the issuing of the interest certificates, created an obligation upon the corporation to pay according to the terms and conditions of such certificates.</p> <p>Notwithstanding the stock for which $75 and $50 per share were paid was to be of equal rank and value as the other stock for which $100 per share was paid, yet in the mat--ter of this interest such stockholders should be limited to “ interest on all amounts paid by them,” according to the language of the original vote, and are not entitled to interest upon the nominal value of $100 per share, and the certificates should he reduced accordingly.</p> <p>There is not such a clear, complete and adequate remedy at law in this case as to require or justify the denial of relief in a court of equity on the ground that the remedy must be at law.</p> <p>The ability of the corporation to pay, which constitutes the contingency upon which these certificates are payable, must be ascertained in reference to the nature of the subject and the relative condition of the parties, and their duty to creditors having a paramount right.</p> <p>The mere fact of the corporation having funds in its treasury sufficient in amount to pay the orators, would not be sufficient to show the ability of the corporation contemplated in the vote and certificates. That ability must consist of a fund adequate not only for the payment of the claims of the orators, but for the payment of all other stockholders having like claims, and must be a surplus fund over and above what is requisite for tho payment of the current expenses of the business, for discharging its duties to creditors, and over and above what reasonable prudence would require to be kept in the treasury to meet the contingencies of its business.</p> <p>The orators’ claims are in the nature of claims upon a particular fund upon which others have an equal claim, and to whioh another class of claimants may have a paramount right. Tho determination of the orators’ rights might involve an accounting to ascertain the existence and extent of the claims of others standing in like condition with the orators, «feo., more appropriate for a court of chancery than for a jury in a court of law.</p> <p>The defendant corporation exists and is operating its railroad under and by virtue of acts of tho legislature of Vermont and Massachusetts respectively. Its railroad is located wholly within the two states, being partly in each. Therefore the courts of Vermont as well as the courts of Massachusetts have jurisdiction of this corporation.</p>

, presiding. The plaintiff proved that the defendant Foster L. Bannister and his brother, Allen W. Bannister, were the sons of Sylvester Bannister; that previous to the 25th of November, 1865, the mother of the said Foster L. and Allen W. had deceased, and that subsequently to the decease of the said mother, Foster Lamson, the grandfather of the said Foster L. and Allen W., died, from whom the said Allen W. and Foster L. inherited some property and money, they being the…

INDICTMENT against the respondent as follows : That Asa Avery of Braintree, in said county, on the 2nd day of May, A. D. 1871, at Randolph, in said county, with force and arms, one saw-mill saw, of the value of fifteen dollars, the property of one John Bullard, which said é’aw was then and there a part of the machinery of a certain water saw-mill, the property of the said John Bullard there situate, then and there wilfully and maliciously did remove and carry away from said…

<p>St at. 1870, Nos. 27 and 28. Jurisdiction. Practice. Pivotee. Decree.</p> <p>Nos. 27 and 28 of the aots of the legislature for 1870 only confer jurisdiction on the county court in cases thereinafter instituted by libel for divorce or for the annulling of marriages, and t© that extent, and not beyond, the jurisdiction is taken from the supreme court.</p> <p>Matters that had their inception in the supreme court by original libel, and in which the supreme court was authorized to make orders on petition after the passing of the decree of divorce or nullity, still continue exclusively within the jurisdiction of the supreme court.</p>

<p> Replevin. Ouster. Unlawful Taking and Detaining. Divorce. </p> <p>The plaintiff and defendant had been husband and wife, and while that relation existed they occupied a dwelling-house, owned by the wife. The defendant petitioned for a divorce, and pending the petition the wife obtained an order of a judge assigning to her separate use a part of the house. When the bill of divorce was granted the plaintiff had some household furniture in that part of the house occupied by him. Held that when the bill was granted it was the duty of the plaintiff to vacate the premises and give the defendant the possession of the whole. Held that the defendant had a right to take the possession of the entire building, and when the plaintiff was out of the house to close and fasten the doors and prevent him from entering.</p> <p>The plaintiff demanded to be let into the house, but did not demand his goods that were in the house. The defendant refused to admit him, but offered to put out any property he had in tho house he would call for. This was held not to be such a taking or detaining of the goods of the plaintiff as would sustain replevin.</p> <p>If the defendant in excluding the plaintiff from the building had only the purpose and intent of asserting and maintaining exclusive possession of it as the owner, and did not claim any right to the articles of property therein belonging to the plaintiff, the latter could not maintain replevin for the property.</p>

<p>This was a complaint in the following words:</p> <p>STATE OF VERMONT, 1 To the Honorable city court, City of Burlington, ss. ( within and for the city of Burlington, in the county of Chittenden, comes Charles E. Allen, grand juror, within and for the city of Burlington, in said county, in his proper person, and on his oath of office complains that Martin Clark, of the said city of Burlington, on the 4th day of November, 1871, at his store, shop and dwelling-house, adjacent thereto, situate on the westerly side of Champlain street, between Pearl and Cherry street, in the said city of Burlington, did own, keep and possess certain, to wit: eleven packages, each containing intoxicating liquor, to wit: one cask containing a quantity of whisky, and marked thirty-six gallons ; one cask containing'a quantity of whisky and marked forty-three gallons ; two sixty-four gallon casks, each containing a quantity of stock ale, and seven barrels, each containing a quantity of strong beer, with intent to sell, furnish and give away the same, without authority, contrary to the provisions of chapter ninety-four of the General Statutes of the said State of Vermont, entitled “ of the traffic in intoxicating drinks,” and against the peace and dignity of the State.</p> <p>Chaelbs E. Allen,</p> <p>City Grand Juror.</p> <p>Upon this complaint a warrant was issued, directed to “ any sheriff or constable in the Staté.”</p> <p>Upon this warrant was the following return :</p> <p>STATE OP VERMONT, )</p> <p>Chittenden County, ss. f</p> <p>Burlington, November 25, 1871.</p> <p>Then .by virtue of this warrant, I arrested the body of the within named Martin Clark, read the same in his hearing, and now have him here in court. Attest,</p> <p>N. B. Flanagan, Chief of Police.</p> <p>The respondent pleaded in abatement, that said warrant was served by said Flanagan, as chief of police for the city of Burlington, and in no other capacity and by no other person. Also that said Flanagan, at the time he served said warrant, held the office of deputy collector of internal revenue, under and by virtue of the authority and laws of Congress of the United States, within and for the third congressional district of Vermont, which was an office of profit and trust, whereby he was ineligible to hold said office of chief of police, and from exercising the same.</p> <p>To this plea in abatement the prosecution demurred. The court sustained the demurrer, adjudged that the plea in abatement was insufficient, and that the respondent should answer over — to which the respondent excepted.</p> <p>The respondent then offered another plea in abatement, identical with the former one, except that it alleged that said Flanagan, while acting as chief of police, of the city of Burlington, and while serving said warrant as such, held the office of deputy mar-</p> <p>sbal of the United States, within and for the district of Vermont, being an office of profit and trust under the authority of Congress, instead of the office of deputy collector of internal revenue, described in the former plea.</p> <p>The court decided that this second plea was of the same kind and degree as the former plea, and that it therefore was not admissible, and refused to receive it, to which the respondent excepted.</p> <p>The respondent then demurred generally to the complaint. The court, pro forma, overruled the demurrer, adjudged the complaint sufficient and the respondent guilty, to which the respondent excepted.</p>

<p>[In Chancery.]</p> <p> Conveyance in Trust for Benefit of Creditors. Levy of ’Execution. Mortgage. Decree. Redemption. Attorney and Client. Estoppel. Tenants in Common. </p> <p>L. convoyed certain premises subject to two mortgages to B., in trust for the benefit of his creditors, and without consideration. B. conveyed the same by quit-claim to J. The orator levied his execution upon and set off a fractional part of the equity of redemption in said premises as the property of L. Held that the orator by his levy acquired such an interest in the premises as to entitle him to redeem.</p> <p>By the payment of the decree of foreclosure upon one of the mortgages by the orator# before it became absolute, the promises were redeemed and the operation of the decree was arrested.</p> <p>Although the payment of the money to the clerk was received and certified by him to be a full discharge of the decree, yet a court of equity will ever in such cases keep the mortgage on foot and treat the transaction as a purchase rather than a payment of the decree, “as may best subserve the purposes of justice.”</p> <p>Although the mortgage is in fact paid, yet equity will require it to subsist until every party who owes a duty under the mortgage shall have discharged it.</p> <p>The orator standing in the relation of owner in part of the equity of redemption by virtue of his levy, acquired the right by the payment of the decree to be treated in equity as the assignee of the mortgage, and to enforce contribution from the defendant in the ratio of his interest in the equity of redemption.</p> <p>The orator and*defendant were tenants in common and the purchase of an incumbrance upon the common estate would enure to the common benefit, and each become liable to his co-tenant to make his proportionate contribution.</p> <p>A client has the right to treat all acts of his solicitor touching his interest as done for his benefit, and often he may require an estate purchased by the solicitor to be held in trust for him.</p> <p>The orator believed and had good reason to believe from the acts and declarations of the defendant, that upon surrendering the possession of the premises to the orator, he distinctly waived all fnrther^claim thereto; and relying upon that the orator sold the premises, with covenants of title, for a less sum than the incumbrances which he had paid. The value of the premises having become enhanced, the defendant should now be estopped from asserting any claim to the premises.</p> <p>Mandate directed a decree for the orator, enjoining the defendant from asserting any claim to the premises in question under his deed.</p>

<p>This was a petition brought by the plaintiff who was the owner of a grist-mill situated on the outlet of Island Pond, in this county, under the flowage acts of 1866-7-9, to have the height to which he may keep his dam and raise the water in said pond established, and to have the defendants’ damages by reason thereof assessed.</p> <p>At the March term, 1870, of the court, the defendants demanded a jury trial, but the court appointed three commissioners to perform the duties required by the aforesaid acts, to which the defendants excepted.</p> <p>At the first sitting of the commissioners, the defendants by their attorneys filed with them a protest in writing, that by so .appearing they did not waive any objection that might be raised as to the constitutionality of said flowage-acts, nor the right to try any question of fact involved by jury. The commissioners made their report to the court, finding that the grist-mill was “ an undoubted public benefit,” and establishing the height to which the water in said pond may be kept by plaintiff, and assessing the dam^gejrpm flowage to the defendants named in the petition. The defendants objected that the acts under which said proceedings were had were unconstitutional. The court, at the September term, 1870, Peck, J., presiding, ruled otherwise, and defendants excepted. Defendants claimed the right'to a trial by jury upon the question of damages, which claim was disallowed, and report accepted, and judgment rendered according, to report; -to all which the defendants excepted. \</p> <p>When the purpose for which private property is to be taken is of a sufficient public nature, especially if it be also a necessity to the public, then the legislature has a right to appropriate the property of an individual. In the case of the Boston and■ Box-bury Mill Corporation v. James Newman, 12 Pick., 467, we have a case differing from this only in this: that the Mill Company built a turnpike in connection with the dam, but the right to maintain the dam independent of the turnpike is distinctly recognized and sustained. See also 15 Yt., 745 ; 23 Yt., 361; 22 Yt., 44 ; 22 Yt., 317 ; Newcomb v. Smith, 1 Chandler’s Repts., Wis., 71; Thiur v. Vorghtlander, 3 Wis., 461.</p> <p>Angelí on Water Courses, (eh. 12,) declares that it is well settled that taking land for mill purposes is sufficiently for the public good to authorize its being done. Talbot v. Hudson, 24 Law Rep., 228 ; Wolcott Woolen Manufacturing Oo. et als. v. Jacob Upham, 5 Pick., 292; Trench The Braintree Manufacturing Oo., 23 Pick., 216. See also, Gfreal Tails Manufacturing Oo. Case, 47 N. H., 444.</p>

<p> Prolate Qourt. Husland and Wife. Ante-Nuptial Contract. </p> <p>Under the statute, No. 66, Acts of 1864, the probate court may suffer a waiver of a join-ture or other provision by settlement or will upon application by the widow made at any time before the settlement of the estate is closed.</p>

<p>Action on the case to recover the penalty for transporting Augusta Jackson, a poor and indigent person, from Danville to St. Johnsbury, without an order of removal, and the expense for the pauper’s support. Plea, the general issue. Trial by jury, June term, Caledonia popnty, 1871, Wheeler, J., presiding.</p> <p>Upon the trial it appeared that the person removed was in fact a married woman, and that her maiden name was Augusta Jackson, that she did not live with her husband, and it was not generally known that she was married, and she was known and called Augusta Jackson by the defendant and others in that vicinity, and not by the name of her husband, and that her husband was living at the time she was transported, and that he sometime afterwards took her away from St. Johnsbury where the defendant left her. Her true name by her marriage at the time of the alleged transportation, and at the time the suit was commenced, was Augusta Chantret.</p> <p>The defendant claimed that the plaintiff could not recover, for that he was sued for transporting Augusta Jackson, and that the proof shows that he transported, if any one, Augusta Chantret. The court overruled the objection, to which the defendant excepted.</p> <p>The plaintiff offered the deposition of the person transported, which purported to be the deposition of Augusta. Jackson, which was, in fact, the deposition of the person known as Augusta Jackson, but who was Augusta Chantret, according to the name of her husband. To which the defendant objected :</p> <p>1st, Eor that it was not signed by Augusta Jackson, or the name signed was not Augusta Jackson. The court found the signature to be that of Augusta Jackson.</p> <p>2d. That there was not any such person as Augusta Jackson. She should have signed her name Augusta Chantret.</p> <p>3d. That the notice served on the defendant to appear and take the deposition, was to take the deposition of Augusta Jackson. It should have been Augusta Chantret. The notice was to take the deposition of Augusta Jackson.</p> <p>4th. Tha,t the notice served on the defendant wTas signed by Elisha May, notary public, and not otherwise. He was at that time counsel for the plaintiff in this suit, and the defendant claimed that therefore he could not issue the notice.</p> <p>5th. The notice was served by John Emerson, who was the overseer of the poor, for the plaintiff. He served it as an authorized person. He was used as a witness by the plaintiff, and he testified that the suit was commenced by him and under his direction as such overseer of the poor. That he had the full control of the suit. That no other town officer had anything to do with it. The defendant claimed that he stood in such a relation to the suit that the service of the notice by him was not a legal service.</p> <p>6th. That the notice did not cite the defendant to appear before any person or authority to take the deposition. The notice did not name any authority before whom to appear to attend the taking of the deposition, but gave the time and place of taking. The defendant did not appear at the taking of the deposition.</p> <p>For these reasons the defendant objected to the admission of the deposition. Objections overruled. Deposition admitted, to which the defendant excepted. The plaintiff town did not offer sufficient evidence to entitle it to recover for expense of ■ support, and the jury were directed accordingly.</p> <p>It appeared that this person had lived with the defendant; at his house in Danville, about a year, and had left and gone to a friend’s house in St. Johnsbury, and was with child, and had charged the defendant’s son with being the father of the child, and that her friend, at whose house she was, had called upon the overseer of the poor of St Johnsbury to take care of her, and that the overseer expected to pay for her keeping there, and that a few days before -he transportation complained of, the defendant and-his wife had heard of her condition, and went in search of her and found her, and with the consent of the overseer took her back to their house, where she charged another person with being the father of her child, and that soon after that the defendant carried her into St. Johnsbury and left her on the common in Paddock-ville.</p> <p>The plaintiff’s evidence tended to show that the defendant agreed with the overseer that if the overseer would consent to have him take her to his house he would take good care of her, and that she should be no expense to St. Johnsbury. The defendant’s evidence tended to show that he did not so agree, but took her home with him to find out the truth about her being with child, and the father of it. The defendant requested the court to charge the jury, among other things, that if at the time the defendant took the woman from St. Johnsbury she was a pauper, the legal liability of the town was not changed by the defendant taking her away for the purpose he did, and that he had the right to carry her back and would not be liable, though he knew- the town would have to support her. The court refused to so charge, but did charge that if she was a pauper of St. Johnsbury, and was a charge upon that town, and that relation was not changed by what took place between the defendant and the overseer, and it was understood between the defendant and the overseer that the defendant was to take her as' a pauper of St. Johnsbury, and he did ■so take her with that understanding, the defendant would not incur the penalty by returning her to St. Johnsbury.</p> <p>To the refusal to charge as requested the defendant excepted. Verdict and judgment for the plaintiff. Exceptions by the defendant.</p> <p>The deposition of Augusta Jackson was properly admitted. The alleged misnomer, the basis of the defendant’s 1st, 2d and 3d objections, was a proper subject for abatement. Boston Type, ¿f-c., v. Spooner, 5 Vt. 93 ; Stone v. Cong. So., 14 Vt., 86 ; 29 Vt., 179 ; 16 East, 110 ; Isaacs, Adm'r, v. Willey, et al., 12 Vt., 674; Vide 12 Vt., 9 and 611, and 6 Vt., 680; Litchfield v. Far-mington, 7 Conn., 100. Elisha May, as a notary, had authority to sign the citation. Gen. Stat., 234, § 5; Sill v. Worth, 34 Vt., 616 ; Senry v. Suntley, 37 Vt., 316. Mr. Emerson could legally serve the citation. He is no party to this suit. Gen. Stat., 540, §6; Lyman v. Burlington, 22 Vt., 131. All that is required is that the defendant should have a copy of notice. Smith v. Wilbur, 35 Vt., 133 ; West v. Walworth, 33 Vt., 167. The statute only requires that the time and place should be stated. If the defendant suffered injury because the name of the magistrate who was to take the deposition was not inserted, then we concede the justice of the defendant’s claim. Patridge Co. v. Stocker et als., 36 Vt., 108; West v. Walworth, supra; McCrellis v. Afe6Veiiis, 38 Vt., 135. The charge as to the de- ■ fendant’s liability was unexceptionable.</p>

<p>Assumpsit in general and special counts to recover a town bounty. Plea, the general issue and trial by jury at the December tei’m, 1871, PecK, J., presiding. Verdict for the plaintiff. Exceptions by the defendant.</p> <p>The plaintiff put in evidence a certified copy of the record of the proceedings of a meeting of the defendant town, held on the 27th day of November, A. D., 1863, by which it appeared that, under a'proper article in the warning, the town at said meeting passed the following vote :</p> <p>. “ On motion of Frank M. Bailey, it was voted that the town authorize the selectmen to hire a certain sum of money, not to exceed $300 for volunteers, and not to exceed $2,100 in all, payable one-half in one year, and the remainder in five years, or sooner if desired by the town.”</p> <p>The plaintiff also introduced a copy of general orders No. 2 of the Adjutant and Inspector General of Vermont, dated Nov. 2, 1863, by which it appeared that the quota of the town of Fairlee aforesaid, under the call of the President of the United States of October 17, 1863, for three hundred thousand volunteers, was seven men.</p> <p>The defendants introduced testimony tending to show that said William Child was never authorized by the selectmen of said town or any of them. That immediately after the said vote of the town the selectmen then having said business in hand went about to fill their said quota, and that they enlisted and had mustered to the credit of said town, at home, seven men, and had paid each of them the said bounty of $300, previous to January 25, 1864 ; that the selectmen had no notice of the re-enlistment of the plaintiff and bis above named comrades to the credit of Eairlee from them, and no notice from the adjutant and inspector general of Vermont that they had so re-enlisted till they received his official circular, about the 24th of April, 1864, dated April 21, 1864, stating that the plaintiff and the others had re-enlisted and been mustered to the credit of said town of Fairlee, and had been applied upon the said quota of said town, under the said call of October 17, 1868.</p> <p>All the other material facts in the case are stated in the opinion of the court.</p>