Volume 46 — Vermont Reports

Book Account. The plaintiffs’ account was for 736 feet of pine boards, at four cents per foot, which they claimed to have sold and delivered to the firm of Belknap & Edson, of which the defendant Belknap was surviving partner, and that the contract of sale was made with the said Edson by the plaintiff Bradish. There was no testimony tending to show that Belknap knew anything about said sale, or that the firm of Belknap & Edson ever had said lumber.

Book Account. Hearing on tbe auditor’s report and exceptions thereto, at tbe March term, 1873, Peck, J. presiding. The plaintiff’s account was for boarding, caring for, nursing, doctoring, and clothing her daughter, Arabella Buck, from March 1, 1871, to December 26, 1872, at $10 per week. The auditor reported tbe following facts: “The plaintiff has no husband, and has not bad for several years.

<p>Appeal from an order of removal of Samuel Hodgdon, a pauper, from the town of Cabot to the town of Walden. Trial by jury, September term, 1872, Peck, J., presiding.</p> <p>Upon the question of whether the pauper had gained a settlement in the defendant town by residing there from June 4, 1852, to the fall of 1859, the defendant offered to show that the town assisted the pauper a small amount in 1858, and for that purpose, introduced Amos W. Eddy as a witness, who testified that he knew J. W. Dow, formerly of Walden, and that he was once acting overseer of the poor of said town. The witness produced a book, and the defendant offered to show that it was the book kept by said town as the book of expenditures of the town for the support of the poor, required by the statute to be kept, and that a certain entry thereon, under date of the year 1858, purporting to be an expenditure for the pauper in question, was in the handwriting of said Dow, who was then out of the state. The defendant offered no other evidence to show that such assistance was in fact rendered. The plaintiff objected to the book as evidence, and the court excluded the same ; to which the defendant excepted.</p> <p>The evidence offered by the defendant is clearly admissible. It was the duty of the overseer of the poor to keep the book, and make the proper entries. Gen. Sts. ch. 20, § 33 ; 1 Greenl. Ev. §§116, 147 ; Boston v. Weymouth, 4 Cush. 538; Derby v. Salem, 80 Yt. 722.</p> <p>The book itself, in the absence of any testimony to show that assistance in fact was furnished, was not admissible.</p> <p>It was not a book of records, nor a book required by law to bo kept by the overseer. Gen. Sts. 139, § 33. The entry on the book does not prove that the town of Walden furnished any support to the pauper. The defendant did not offer to show that there was any furnishing-in fact, or that the town of Walden ever paid Dow for this charge, or that his account was ever audited by the town auditors. It was the duty of the town to have produced the testimony of Dow, and by him proved the furnishing, if there was any.</p>

<p> Effect of Recital in Charter. Legislative Grant. Estoppel by Reed. Presumption of Identity of Persons of same Name. </p> <p>The charter of Harris Gore was dated. October 30,1801, and recited that the grant of said territory was made by the legislature, February 25, 1782, to G. and others. On June l, 1789, G., by deed of warranty, convoyed “one whole right and share in said gore, drawn in my name to me,” to G. Jr. The lands of said gore were not in fact allotted or divided till the year 1802. Held, that the recital of the grant in the charter, was at least prima facie evidence of the fact; and that said grant at once vested title to said lands in the grantees, as effectually as when engrossed and recorded.</p> <p>When one having no title to land, conveys it with covenants of warranty, and subsequently acquires title thereto, his title enures to, and vests in, his grantee, by operation of law, in discharge of his covenants.</p> <p>Parties in successive deeds constituting a chain of title, of the same name, are presumptively the same persons? and, in this country, there is no intendment that a party, in twenty years, may not change his residence.</p> <p>A deed from G. of H., to G. Jr. of H., was presumed to be from father to son.</p>

<p> Town Meetings. School Districts. </p> <p>Under an article in the warning of a town meeting as follows: “To make alterations in school districts. Moses Clark, Abner Sparrow, Salem Croodenough, and J. W. E. Bliss petition to be set, together with their property, from district No. 1' to No. 7,” the town voted to set the persons named in said article, with their property, as therein petitioned 5 and also, voted to set the plaintiff, and others not named in said article, “together with their property,” from district No. 3 to district No. 10. Held, that said last named vote was warranted by the article, and had the legal effect to transfer the plaintiff, with what he possessed, both real and personal, that was subject to taxation, from one district to the other.</p>

<p>[ In Chancery. ]</p> <p> Interpleader. Trustee Judgment. </p> <p>The orator gave his promissory noto to A. on time. Before it became due, the defendant H. sued A., and trusteed tho orator. A. was defaulted; but tho orato rappeared and made full disclosure as trusteo, and statod all he htiew about the ownership of said note, and was adjudged trustee for the full amount tlv reof, which judgment remained unsatisfied The orator had no notice before judgment, except from A., that the note had been transferred, or that any one other than A. claimed to own it. After judgment, one 0. notified the orator that ho owned the note, and claimed that he notified the orator thereof before the commencement of said trustee suit, and when the noto matured, T., in behalf of said 0., demanded payment thereof, which the orator refused. Afterwards, the defendant 0., claiming to be the lawful bearer of said note, brought suit thereon against the plaintiff. A bill to compel the defendants to interplead, and to enjoin tho defendant 0. from prosecuting his said suit, and II. from enforcing said judgment against the orator, and praying that said note be surrendered to the orator upon payment of the amount thereof into court, was dismissed for want of equity.</p>

Trespass, for that the defendant, on the 7th of November, 1868, broke and entered the plaintiff’s close, and then and there prostrated and destroyed the plaintiff’s fence, tore up and damaged the soil of said close, and threw divers large quantities of earth, stone, boards, posts, and rubbish, into the road of the plaintiff, of and belonging to said close, and thereby and therewith choking and filling up said road, and hindering and impeding the plaintiff in the use and…

Plea, that the pauper was unduly removed, and was not chargeable to the town of Fairfield, and that said Fairfield was not the place of said pauper’s last legal settlement. The defendant also filed a plea to the jurisdiction, for that the justices who made said order were rated inhabitants and tax-payers in, said Morristown at the time of the making thereof; to which the plaintiff demurred.

General Assumpsit. * Pleas, tbe general issue, offset in the general assumpsit counts and on judgment, and former adjudication. Trial by jury and verdict for the defendant, September term, 1872, Ross, J., presiding. The plaintiffs conceded that the defendant should be allowed in offset the sum of fourteen dollars, balance due on judgment, and the controversy was as to an item of the plaintiffs’ account for keeping the defendant’s horse.

Trespass qua. clau. Plea, the general issue, and trial by jury, September term, 1872, Ross, J., presiding. The parties were owners of adjoining lots, except four acres and a half reserved from the plaintiff’s lot by Benjamin Hinman, as hereafter stated, and the question was as to the location of the division line between said lots.

Case. The declaration was as follows: “ For that heretofore, to wit, on the first Tuesday of March, 1869, the defendant, and D. W. Porter, and S. B. Hammond, were, at a legal meeting of the legal voters of said town of Troy, legally warned and held at said Troy on the day last aforesaid, elected selectmen of said town for the year then next ensuing; and the said defendant, and the said Porter and Hammond, immediately thereafter proceeded to transact the necessary business of…

Scire facias 'upon a recognizance entered into by the defendants as. sureties for one James A. Kendall, deceased, conditioned for the faithful performance by the said Kendall of his official duties as sheriff of Orleans county. The breach alleged was for not paying over money collected by the said Kendall in part satisfaction of an execution in favor of the plaintiffs, and for not collecting the balance of said execution.

Replevin. The general issue was joined on the plea of not guilty, and tried by the court, September term, 1872, Ross, J., presiding. Held: upon the foregoing facts, that there was a sufficient change of possession, and rendered judgment for the plaintiff to íecover one cent damages, and his costs ; to which the defendant excepted. contended that there was not a sufficient change of possession to prevent the property from being attached and held by the creditors of the…

The case was tried at the March term, 1872, Ross, J., presiding, on an agreed statement of facts.

50. Trial, by jury, September term, 1872,' Redfield, J., presiding.

Trustee process. A commissioner was appointed, who reported as follows : “ The last of February, 1870, the defendant sold to Dyer & Clark, the trustees, goods consisting of tea, tobacco, sugar, salt, and part of a hogshead of molasses, for the sum of $824.21. On the 2d of March, 1870, Thomas Lynch & Co., of Portland, Me., the claimants, held two notes against the defendant, then overdue, amounting to some more than $550, and one note not then due.

<p>Assumpsit on a promissary note for <$1,000, dated June 10, 1869, payable to J. E. Kimpton, or bearer. Plea, the general issue, and trial by jury, September term, 1872, Redfifld, J., presiding.</p> <p>It appeared that the plaintiff and Samuel D. Hobson signed a note for $1,000 with John E. Kimpton, and as sureties for him, and that at the time they signed, said Kimpton delivered the note in suit to the plaintiff, as indemnity for becoming his surety. This note was mere accommodation paper in its origin, as between John E. Kimpton and the defendant; but the plaintiff, as the jury found, was not aware of it. John E. Kimpton became insolvent, and his whole property was divided, pro rata, among his creditors, and amounted to 35 per cent. On the 18th of June, 1870, the plaintiff and Hobson met John E. Kimpton, and received the 35. per cent, dividend, and thereupon assumed and paid the note on which they were sureties, each paying one half; whereupon John E. Kimpton executed his note for one half the residue, payable to the plaintiff in six months from said date. The defendant claimed that this transaction was such a settlement, that it operated to release all claim to, or right in, the note in suit; and that said note being accommodation paper, and held by the plaintiff as security for signing as surety for John E. Kimpton, the plaintiff’s right to it was released by giving time to the principal, John E. Kimpton. But the court charged the jury, that in the absence of any proof that the defendant was damnified by the plaintiff’s taking John E. Kimpton’s note on six months, the plaintiff’s right to the note would not be released; and also, that the receiving of the dividend of 35 per cent, and the taking of the note for the moiety of the balance unpaid, did not deprive the plaintiff of the right to pursue the note in suit until he was reimbursed the money paid as surety on said note, unless there was some agreement to that effect, and that on that issue, the burden of proof was on the defendant. Verdict for the plaintiff. To the ruling of the court on the points above stated, the defendant excepted.'</p> <p>There was error in the charge of the court in regard to the burden of proof. Wait v. Brewster, 31 Vt. 527 ; and authorities cited in opinion by Aldis, J.</p> <p>When plaintiff and Hobson made their settlement with John E. Kimpton, the plaintiff had no longer any right to the defendant’s note, without some agreement to that effect. Prima facie, it was a settlement and discharge of the note sued, just as much as it was of the original note of John E. Kimpton.</p> <p>The defendant’s position is analogous to that of a surety. Mc-Questen v. Noyes, 6 N. H. 19. On the 18th of June, after John E. Kimpton had become insolvent, and his property had been divided among his creditors, the plaintiff knew, or ought to have known, that the defendant’s note was merely accommodation paper, and the cancellation of John E. Kimpton’s original note, by part payment, and the taking of a new note on six months, would clearly operate to discharge the defendant, if he were'only a surety. At all events that transaction gives the defendant the same right to defend against the note in question, as he would have had in case the action were brought by John E. Kimpton. So far as the latter is concerned, the note is without consideration ; and being held as collateral security by the plaintiff, he has so conducted in regard to the principal debt, that he now has no right to enforce payment of the collateral paper, against the defendant. Austin■ v. Curtis, 31 Yt. 64, 74, 75; Myers v. Wells cf Magee, 5 Hill, 463 ; Fellows v. Prentiss, 3 Denio,512.</p> <p>The note in suit, as to the plaintiff, was founded on full consideration, and the plaintiff bears the same relation to it he would to a specific piece of property which the defendant and John E. Kimpton informed him belonged to the said John, deposited to secure the plaintiff in what he might do to assist the said John. Now it would be a singular rule of law which would prohibit the plaintiff’s settling his matters with J. E. Kimpton — taking a note to show how much remained due from him — or which would forbid the plaintiff’s doing all in his power to secure and collect it, so as to release the property pledged as fast as he could.</p> <p>The note, as to the plaintiff, being founded on full consideration; the defendant does not stand in the relation of security, but as to the plaintiff he is the principal. In the case of Smith t. Steele’s Estate, 25 Yt. 427, the surety was indemnified, and on that ground the court held that he was clearly principal.</p> <p>In this case a note was deposited with the plaintiff, purporting to be for value received ; and in that emphatic way the defendant announced to the plaintiff that he was fully secure — that he owed John E. Kimpton $1,000. Nothing could more effectually place the defendant in the position of principal. Farmers and Mechanics’ Banlc v. Rathbone, 26 Yt. 19.</p> <p>The plaintiff’s acting upon the defendant’s representations that the note was for full consideration, is a moral estoppel to the defendant’s claim. Earris v. Broolcs, 29 Pick. 195. Bunham et ais. v. Bowner et als. 31 Yt. 249.</p> <p>The plaintiff has absolutely paid the debt, against the payment of which the note in suit was given as security ; and taking John E. Kimpton’s note, was only securing evidence of the amount due from him, who was all the time, as the case shows, ^responsible. All that was done by the plaintiff, operated for the benefit of the defendant, and in that direction he was bound to proceed with good faith. Berby v. Thrall, 44 Yt. 413. Banlc of Newbury v. Richards et. al. 35 Yt. 281.</p> <p>The plaintiff’s liability became- fixed, and he paid the note he had signed; that created an absolute debt against John E. Kimpton, and that debt was not affected by the plaintiff’s taking his note. It was no payment of the debt, until the note was paid.</p>

This was an action to recover the possession of about three-fourths of an acre of land, with a house and barn, thereon, brought before a justice of the peace, pursuant to § 22, ch. 46 of the Gen. Sts., and came to the county court by appeal. Plea, the general issue, and trial by the court, March term, 1872, Ross, J., presiding. The writ was dated June 14,1871.

Debt for a penalty, founded on section 58, chapter 22, of the General Statutes. The writ was dated June 12th, 1871, and returnable June 29th, 1871, before C. E. Benton, justice of the peace. The only minute thereon of the day, month, and year when the same was signed by the justice, was as follows: “ Granby, Vt. June 29th, A. D. 1871. “ The within writ was signed by me on the 8th day of June, 1871. .

Trespass qua clau. in two counts. Pleas, the general issue and license. Trial by jury, December term, 1872, Royce, J., presiding. No question arose under the second count.

Trustee process. The plaintiff claimed that the trustee was indebted to the defendant for building a bridge in said town. The'defendant, who was also one of the claimants, and said Waterman claimed that said indebtedness was to them jointly, as partners.

Assumpsit to recover for building a school-house for the defendant.

Assumpsit upon an alleged contract on the part of the defendant to act as the plaintiff’s agent in the purchase of the St. Johns-bury Times, a newspaper, published at St. Johnsbury. Breaches, that the defendant purchased said paper for himself, and not for the plaintiff; that the defendant and one G. B. Bullard purchased it together ; and that the defendant assisted the said Bullard to purchase it.

Trespass for assault and battery. Pleas, the general issue, son assault demesne, and defence of the possession of a certain barn in Walden. Issue was joined on said pleas, and trial by jury, June term, 1873, Ross, J.-, presiding.

Case for injury on a highway. Plea, the general issue, and trial by jury, December term, 1871, Eoss, J. presiding.

<p>Ejectment. Plea, not guilty. Trial by jury, and verdict for the defendant, June term, 1873, Ross, J. presiding.</p> <p>The only question was as to the location of the true line between the house-lots of the plaintiff and defendant, on Summer street, in the village of St. Johnsbury. Both parties derived title from Moses Kittridge, who died in January, 1873. The lines of both lots were surveyed in 1853, and all deeds since then followed the descriptions of that survey. The defendant was permitted, against the plaintiff’s objection, to testify that after this suit was commenced, he met said Kittridge in the street one day, some distaiice' from the line in dispute, and hot in sight of it, and asked Mm to go and look the lines of-said lot's over, and see if the fences were in the right place ; that afterwards he again met said Kittridge, who told him he had been to look at the lines, and that the fence between the plaintiff and defendant was all right. None of said conversation was in sight of the disputed promises; nor was there any other evidence of what Kittridge told the defendant. It was conceded that Kittridge helped set the stakes and make the survey when Ihe lots were surveyed in 1853. Exceptions by the plaintiff.</p> <p>cited 1 Phil. Ev. 181, 200, 226 ; 1 Greenl. Ev. §§145, 147 ; Berkeley Peerage Case, 4 Gamp. 401, 411 ; Euigh Peerage Case, cited 1 Phil. Ev.' 224; Smith v. Powers, 15 N. H. 546 ; Wood et al. v. Willard et al. 37 Yt. 877 ; Powers et al. v. Silsby et al. 41 Yt. 288; Miller v. Wood et al. 44 Yt. 378.</p> <p>cited 1 Smith Lead. Cas. 338, notes ; Sasser v. Herring, 3 Dev. Law (N. C.), 340 ; Great Falls Co. v. Worster, 15 N. H. 412 ; Smith v. Powers, lb. 546 ; Adams v. Blodgett, 47 N. H. 219 ; Hinny v. Farnsworth, 17 Conn. 355 ; Wood et al. v. Willard et al. 37 Yt. 377; Potvers et al. v. Silsby et al. 41 Yt. 288.</p>

Case- for the loss of service of plaintiff’s wife and expense of medical attendance upon her, consequent upon an alleged injury occasioned by reason of tbe insufficiency of a highway in the defendant town. Plea, the general issue, and trial by jury, December term, 1872, Ross, J., presiding.

Assumpsit, for that on the 1st day of May, 1870, in consideration that the plaintiff would permit the defendant to raise oats on a certain piece of the plaintiff’s land that year, and have the .crop, the defendant promised to sow said land with oats, and to harrow it as much as he was accustomed to harrow his own land for a like purpose, and to stock down the same with herds-grass and clover, and also expend four days’ work thereon in cutting bushes and making and repairing…

Bean, a pauper, and her seven minor children, from the town of Peacham to the town of Waterford. The paupers were removed under said order.

General assumpsit. Plea, the general issue. Trial by jury, and verdict for the plaintiff, June term, 1873, Ross, J., presiding. On trial it appeared that the plaintiff was administrator of the estate of Judkins Randall, deceased, and that the defendant married the decedent’s widow, and purchased of A. J. Randall, sole heir of said estate, most of his interest therein.

The defence was, that said instrument was not executed in accordance with the statute. The issue was tried by the court, at the June term, 1878, Ross J., presiding. Said instrument was dated March 16, 1869.

Case for deceit in the sale of a patent-right. Plea, the general issue, and trial by the court, December term, 1872, Ross, J., presiding. The declaration contained three counts.

This was a prosecution under § 33, ch. 94, of the Gen. Sts., for furnishing intoxicating liquor to one Frederick Willey, contrary to the provisions of said chapter. A warrant issued against the respondent, in the form prescribed by section 34 of said chapter. The case was continued before the justice, at the respondent’s request, to enable him to procure counsel. On the day to which the cause was continued, the respondent appeared with counsel, and filed a motion to dismiss.

General assumpsit. Pleas, the general issue and offset. Trial by jury, and verdict for the plaintiff, December term, 1872, Ross, J., presiding. The plaintiff, among 'other things, claimed to recover for certain items in his specifications which accrued for shoemaking, amounting to. the sum of twenty-three dollars.

General assumpsit. Plea, the general issue. Trial by jury, and verdict for the plaintiffs, September term, 1872, Orleans county, Ross, J., presiding.

Assumpsit to recover damages for the breach of a certain contract by the defendant to dig a cellar and lay a cellar wall for the plaintiff, at a certain price agreed upon. Plea, the general issue, and (rial by the court, February term, 1872, Orleans county, Redeield, J., presiding.

Assumpsit for a town bounty, Plea, the general issue, and trial by the court, December term, 1873, Windsor county, Barrett, J., presiding. The plaintiff’s intestate re-enlisted to the credit of the defendant, at Brandy Station, Va., on the 16th of December, 1863, and was mustered into service on the same day.

Assumpsit. The declaration contained the general counts and a special count; but tho plaintiff relied only on the general counts. Plea, the general issue. Trial by jury, and verdict for the plaintiff, April term, 1872, Franklin county, Royce, J., presiding. The plaintiff’s claim was for loss on butter, $47.48.

<p>Appeal from the court of chancery, Chittenden county. The orators were the widow and children of George Edgecumbe, late of Burlington, deceased, and claimed title to the land in question as devisees, under the will of the said Edgecumbe. The bill alleged, that on the 21st of September, 1869, the city of Burlington, through its board of aldermen, set out and sequestered from the lands of the orators, for the pretended purpose of enlarging the public burial-ground in said Burlington known as Green Mountain Cemetery, the lands particularly described in the proceedings of said city, a copy of which was annexed to the will and made a part thereof, and that said proceedings were recorded on the 28d of said September ; that said board of aldermen awarded the orators for the land thus sequestered, the sum of fifteen hundred dollars damages ; that there was no public necessity requiring such enlargement, and that such setting out and sequestering were made at the instigation and suggestion of a private corporation or of individuals, for its or their purposes, and not for the purposes of a public burial-ground for said city, and with an understanding on the part of the authorities of said city that any expense in that behalf, should be paid back to said city; that the lands aforesaid were so sequestered and set out in fraud of the rights of the orators, and without any intention on the part of said city authorities of exercising permanent control of the same, and only for the purpose of quieting the title which said association or individuals could not otherwise acquire, and transferring said premises to it or them ; that the orators intended to have appealed from said proceedings, but by accident and mistake, were deprived of such appeal, and were in danger of losing said land, and their rights in the premises ; that no work had been done upon said land, and no possession taken thereof under said proceedings ; that no tender or payment of the damages awarded, was made to them, or any one of them, within the time limited by law for such tender or payment to be made by said city, or by any one in its behalf ; that the orators had applied to said city to vacate said proceedings, and leave the orators in undisturbed possession of said premises ; that said board of aldermen had instructed the cemetery commissioners, Dan-Lvon, Henry H. Doolittle, and Miner B. Catlin, to take possession of said premises under said proceedings, and fit them for use for burial purposes, at the instigation, and upon the requests, of said association or the individuals aforesaid, against the wishes and protest of the orators ; that said sum awarded as damages, was insufficient and inadequate, and that said land was worth a much larger sum than the amount of said damages, as would bo made to appear, if an impartial hearing could be had.</p> <p>Prayer, that said city and association be enjoined from taking possession of said premises by virtue of said proceedings of sequestration ; that the title of the orators to said premises be confirmed ; and for general relief.</p> <p>The answer of said city admitted the sequestration of said land, and that the proceedings in relation thereto were recorded as alleged, but alleged that the public good and necessity required the enlargement of said cemetery for burial purposes ; denied that said sequestration was made for the purposes of a private corporation, or of individuals, but alleged that it was for the purposes of a public burial-ground; admitted the orators’ title as alleged, and that said sequestration was made with an understanding on the part of the city authorities, that any expense incurred therein by the city, should be reimbursed ; insisted that the damage awarded the orators, was an adequate compensation for said land, and that the orators were precluded from any further showing in the matter, by their neglect to appeal from said award; averred that on the 15th of December, 1869, and before entry upon said land, said city tendered to the said Grace Edgecumbo, executrix of the last will of the. said George Edgecumbe, for the use of the orators as devisees as aforesaid and owners of said land, the sum of fifteen hundred dollars, the amount of said award, with eighteen dollars interest thereon from the 3d of October, 1869, which the said Grace refused to receive; averred that said sequestration was made with an understanding on the part of said city, that the control of said cemetery should thereafter be conveyed to the Green Mountain Cemetery Association of Burlington, a corporation duly established by an act of the legislature approved November 19, 1868, and held by said association for the purpose of public burial; that, in pursuance of said understanding, an indenture was executed by and between the city and said association, on the 5th day of November, 1870, whereby the city conveyed said cemetery to said association, upon the express trust and confidence that said association and its successors should, at its and their own expense, and without charge or expense to said city, support and manage said cemetery for the purposes of a public burial-ground, and keep and maintain the same at all times in a suitable and proper condition in every respect for that purpose, and in the use, occupation, and management thereof, conform to all the general laws of the state applicable thereto, and to the provisions of said act of the legislature ; and whereby said association, for itself and its successors, covenanted and agreed to take possession of said cemetery, and control and manage the same upon the trusts and conditions aforesaid, and upon the breach of any thereof, to yield up and surrender said cemetery, and the management and control thereof, to said city. Said answer further averred, that on the first day of June, 1871, said association entered upon said land, and took possession of said cemetery as enlarged, and expended large sums of money in fitting the same for public burial, and had ever since had possession thereof; alleged that the city never instructed the cemetery commissioners to take possession of said land, and fit the same for burial purposes; insisted that the orators were not entitled to relief in the premises, and prayed the same benefit of said defence as though a demurrer had been filed to said bill. The answer of the other defendants was substantially like that of the city. The answers were traversed. It was stipulated that the case be heard on bill and answer, and that the court hear and determine all questions raised by the pleadings, although it might appear that the orators, or some of them, had a remedy at law. The court of chancery, at the April term, 1872, dismissed the bill; from which decree the orators appealed.</p> <p>The proceedings of sequestration wore had under the special provisions of ch. 18, § 9, of the Gen. Sts.</p> <p>We insist that the board of aldermen did not follow the requirements of the statute, in that, after proceeding so far as to condemn the land, and award damages to the orators, they did not pay the sum awarded ; and after recording their proceedings, they failed to pay or tender to the orators the sum awarded to them for nearly three months, while the statute thus provides : “ They shall, at the time of making their award of damages, or within ten days after the recording of such returns, and before entering upon such lands, pay or tender to such owner or owners the amount of damages so awarded.” This provision is specific, emphatic, and vital to the full protection of the laud owner. It is not directory simply, but mandatory. Without payment or tender of the damages awarded, the owner could not learn whether the award was made, or at what time, only by an indefinite period of watching the town clerk’s office. Every provision that is favorable to the land owner’s interest, oven if otherwise doubtful, shall be solved in his favor. Sparrow v. Oxford, 12 Eng. L. & Eq. 249 ; Shelf. Rail. 233.</p> <p>'This attempted sequestration of the orators’ land, was a proceeding in invilum. Selectmen of towns and aldermen of cities, have no general powers to seque: ter lands; it is conferred by special statute, that specifically provides for every step they take, and all the provisions of the statute must be strictly if not literally followed, and are all precedent, and must be thus strictly complied with, before any title passes from the land owner. Spear, admr. v. Ditty, 9 Vt. 282; Ballows v. Htliott et al. 12 Vt. 5C9: Isaacs, admr. v. Wiley et al., 12 Vt 677. If the provisions of the statute in like cases are all performed but the last, and that fails of performance, all are void. Hall v. Hall, 5 Vt. 305. Those acting-under authority of special statute provisions as to their course, must pursue that course exactly. Thatcher v. Powell, 6 Wheat. 119; Blackwell Tax Titles, 53, 54. True, there is this further provision in the same section, that if there is no tender or payment within the time, the land owner may sue and recover the sum • awarded. This is a provision made solely for the benefit of the land owner. If he elects to sue and recover the money, this cures defects in sequestration, and would estop his questioning them thereafter. But if lie- does not choose to do this, the parties stand as if no provision of the kind had been enacted.</p> <p>We think that the board of aldermen, under the circumstances of this case, exceeded their authority, and did what the statute never intended should be done. They did not in fact — whatever the form indicates — take the land for the city of Burlington. Indeed, the city had no interest in what was done. It paid nothing towards the land, and was not to do so. The Green Mountain Cemetery Association was to pay the damages, when awarded, and did furnish the money, and was to "have the use and benefit of the land transferred to it. All improvements were to bo made by it, and there was nothing but the chicanery of legal forms that prevented its appearing of record that the sequestration was made for its benefit, and at its expense, past and future. Had the return when recorded, shown the facts now admitted in the answer, there could have been no claim that the title had passed from the orators. What the city of Burlington could not have done directly, it could not do by indirection. The attempt to do it was a fraud upon the orators, a,nd vitiates the whole proceeding. The act incorporating the Green Mountain Cemetery Association docs not empower the city to convey this addition. The intent and meaning of the act are plain — the corporation to acquire by gift or purchase the addition; the city to convey the original plot. The act under which the conveyance was made, ignores the idea of a public necessity within the intent of the Gen. Sts. Acts of 1868, p. Ill, §§ 2, 3.</p> <p>Again, the city cannot convey what it does not possess. The cemetery is a public one, and as such, does not belong to the city, to be the subject of conveyance, but to the public, to each and every citizen, according to his need, when the exigency arises requiring its use. Pomeroy v. Mills, 3 Vt. 279.</p> <p>I. The sequestration proceedings were not avoided by the omission to make tender of the damages awarded, within ten days after return. The language of sections 9 and 10 of the statute (ch. 18), is to be taken together, and plainly shows that the provision on the subject is this — the damages must be tendered before entry on the land; and if not tendered within ten days after the recording of the return, the land owner may sue for and recover them, though no entry has been made. By giving a right of action for the damages awarded, the legislature must have intended that the acts preceding payment or tender, if regular, divested the owner of title, else he could not maintain an action to recover the damages awarded. Stacy v. Vt. Central R. R. Qo., 27 Vt. 39. The construction claimed by the orators is wholly unnecessary to the security of the land owner ; rests upon no conceivable reason ; and makes section 10 an absurd surplusage.</p> <p>II. The objection that the land was not taken for a public burial-ground, is without foundation. The case stands upon bill' and answer. Both the answers, on this and all points strictly icsponsive to the bill, allege that the land was sequestered by the board of aldermen by statute proceedings, for the purpose of a public burial-ground ; that the public good and necessity required it to be so taken; and deny that it was taken for the benefit of any private corporation or individuals. That the decision of such authorities is conclusive as to the existence and extent of the public necessity, has repeatedly been held. Lincoln v. Rutland <f Burlington R. R. Q'o. 24 Vt. 639; Hill v. Western Vermont R. R. Co. 32 Vt. 68 ; Acts of 1865, p. 197.</p> <p>The subsequent agreement with the cemetery association, is a conveyance of the control of the cemetery, upon the express trust and undertaking that it shall be maintained at all times for the purposes of a public burial-ground only,' in conformity with all statute provisions on the subject. And upon default in this, the control at once reverts to the city. This is a mere arrangement, and a very judicious one, for the better care and embellishment of the cemetery. The city had a perfect right to make it. It contravenes no provision of law, and has been expressly'authorized by statute. Acts of 1868, No. 9 ; Cooley Const. Litn. 530, et seq ; Angelí Highways, § 86.</p> <p>But even if it were void, the burial-ground, with its contents, would not revert to the original land owner. The title would, in that event, still remain in the city, which would continue to bo charged, notwithstanding the agreement, with the maintenance of the ground for burial purposes.</p>

General assumpsit for the balance of a town bounty. Pleas, the general issue, payment, and accord and satisfaction. Trial by jury and verdict for the plaintiff, September term, 1871, Chittenden county, Peck, J., presiding.

t to the plaintiff homestead and dower in the estate of the said Lot Hathaway. The defendant pleaded two several pleas in bar.

Assumpsit'. Plea, the general issue and trial by jury, September term, 1872, Franklin county, Royce, J., presiding.

Assumpsit upon a promissory note, dated April 11, 1862, signed by A. W. Locke, and tlie defendant and Harry H. Hall, and payable to the plaintiff. The writ was dated April 1, 1868, and served April 10, 1868. Plea, the general isssue, and notice. Trial by jury, September term, 1871, Orleans county, Redfield, J., presiding.

The bill alleged, that on the 1st day of October, 1864, the orator Magoon, and one Flint, purchased of the defendant a certain piece of land (describing it), situate upon the north side of Portland street, in St. Johnsbury, and that the defendant’s deed of said land contained the following grant: “ Also, I hereby grant the said Flint and Ma-goon the privilege of taking water from springs on the west side of my farm, sufficient to supply the buildings to be erected on said…

The case was heard on bill, answer, traverse, and proofs, at an adjourned term of the court of chancery, held on the 7th of December, 1872, Franklin county, Royce, Chancellor. Appeal by the orator. The case is sufficiently stated in the opinion. The third bequest creates a trust in the hands of the executor, and will be upheld.

Assumpsit upon a subscription to the capital stock of the plaintiff corporation. Plea, the general issue, and notice denying the plaintiff’s legal organization. Held: that' as it appeared that the full amount of the capital stock had not been subscribed for, there was no occasion for the exercise of any but ministerial functions by the commissioners.

- Appeal from the court of chancery. The petition alleged that Hiland Hall, late of Bristol, deceased, on. the 26th of August, 1867, duly executed to the orator a mortgage deed of a lot of land, with a house thereon partly finished, situate in the village of Bristol, to secure the orator for what money, lumber, and materials he had advanced to tho said Hall towards tho erection of said house, and what he should advance within two years thereafter; that there was about $1,000…

Ejectment for laud iu North Hero. The case was referred, aud tho referee reported the following facts: “ I find-that the land described in the declaration, is the land that was set or drawn to the right of the first settled minister in the town of North Hero, according to the provisions of tho original charter of the town of “ Two Heros,” and the acts of the legislature subsequently passed, dividing said town into the towns of North Hero and South Hero, &c.; that the…

Trover for a horse, farming tools, carpenter’s tools, one pair of boots, and household furniture. Plea, general issue, and trial by jury, May term, 1871, Windsor county, Barrett, J., presiding. The' plaintiff claimed, and it was conceded, that the property sued for had been the property of Elisha Wood, the plaintiff’s intestate.

Case. The declaration was as follows: “ Eor that whereas, before, The defendants demurred to the declaration, for that the fraud of the said Mary alleged therein, was directly connected with, and a part and parcel of, the alleged contract of the said Mary, and was the alleged means of effecting said contract; and because the alleged contract of the said Mary was the basis of all the alleged transactions between the said parties upon, and growing out of which, the said fraud…

Trespass qua. clau. for cutting timber on lots 168 and 174 in Bolton. Plea, the general issue, and notice that tho locus in quo was the soil and freehold of one Roswell B. Pay, from whom the defendant had license to cut said timber. Trial by jury at the April term, 1873, Pierpoint, Oh. J., presiding.

General assumpsit. Pleas, the general issue, payment, and offset. The case was referred, and the referee reported the following facts: “ In April, 1871, the parties entered into a contract that the plaintiff should work for the defendant as a blacksmith, at Jericho, for one year; that the defendant should pay for such service the sum of §2 per day, and furnish the plaintiff a house and garden.

Trespass and trover for a harness, brought to the city court of Burlington. Trial by the court, Tyler, J. The facts sufficiently appear in the opinion. The court rendered judgment for the defendant to recover his costs; to which the plaintiff excepted. cited Laws of 1866, No. 39, § 1; Leavitt v. Metcalf, 2 Yt. 342 ; Mundell v. Hammond, 40 Yt. 641; Allen v. Thompson, 45 Yt. 472. cited Laws of 1866, swpra, and Fry v. Canfield, 4 Yt. 9.

<p> Construction of Deed. Boundaries. Costs. Practice. </p> <p>Where a deed described the line in dispute as running from a corner, on a given course,, a given number of rods, to a corner, but did not'state whether the corners were marked on the land or not, and it appeared by parol that they were in fact marked by means of monuments, and that there was a straight line of marked trees from one corner to the other, it was held, that the authentic line would be a straight line from one corner to the other, notwithstanding it did not conform to the course and distance given in the deed; and that the fact of the existence of said line of marked trees, was legitimate, as tending to show the marked corners called for by the deed.</p> <p>The exception in §22, oh. 125, Gen. Sts., which allows the plaintiff full costs in trespass on the freehold, when the right of title or possession of real estate comes in question, although he recovers no more than seven dollars damages, does not withdraw the subjeet from the scope and effect of §18, ch. 33, which provides that when the plaintiff recovers only nominal damages, the court may in their discretion make such order in respect to the allowance of costs to tho plaintiff as shall he just and equitable.</p> <p>It must appear very plainly upon the face of the exceptions, that the county court erred in its order as to costs, to warrant the supreme court to reverse the judgment as to costs.</p>

<p>Appeal from a decree of the probate court for the district of Chitteuden.</p> <p>The case was this. Jeremiah French died intestate in February, 1835, leaving a widow, who died in 1858, and five children, of whom the plaintiffs were two. Dower having been assigned to the widow, the probate court on the 18th of January, 1836, by a decree for that purpose, distributed all the residue of the estate, except the reversion of the widow’s dower, among said children ; and in May, 1836, the same was partitioned and distributed accordingly, by commissioners appointed .for that purpose. In said decree it was ordered that the sum of $3,177.30, which had been given to the plaintiff David French by the testator, by way of advancement, be reckoned as part of the said David’s share of the estate; and said commissioners were ordered by their warrant, to reckon the same accordingly in the partition and distribution of said estate, which they did; and in their report they stated that the same exceeded the said David’s share of the estate to the amount of $991.71; and they partitioned and distributed nothing to the said David. It appeared upon the face of said report, and was conceded, that said excess was only the sum of $793.37.</p> <p>In April, 1867, the plaintiffs brought their petition to the probate court, praying that the lands assigned to the widow as dower, be partitioned, and that their share thereof be set out to them in severalty. The probate court, by a decree for that purpose, granted the prayer of said petition, and appointed commissioners to partition and set out said lands accordingly, and ordered that said sum of $991.71 be reckoned as part and parcel of the said David’s share therein ; from which decree the petitioners appealed.' The county court, at the September term, 1873, Pierpoint, Ch. J., presiding, affirmed said decree, pro forma; to which the plaintiff excepted.</p> <p>The surplus of the advancement to David French, formed no part of the reversion of the widow’s dower, and could not be taken into account by the probate court in dividing that reversion. The widow’s dower consisted only oí such real estate belonging to the intestate at the time of his death, as was assigned as dower by the probate court. This claim against David French for money advanced him by the intestate in his lifetime, was not real estate, and was not assigned to, nor ever possessed by, the widow. Ii formed, therefore, no portion of the dower, nor of the reversion of the dower. The surplus of it was not even a debt to the estate from David French; because the statute expressly declares that such surplus the heir shall not be liable to refund. Gen. Sts. ch. 56, § 14. Even if it had been such a debt, it would have been barred six times over by the statute of limitations, before the present proceeding was commenced. And independent of the statute of limitations, the lapse of time, thirty-four years, would have raised a conclusive presumption of payment or discharge of it. Even if it was a valid debt and not barred, the probate com! had no power to take it into account in such a proceeding. Keeler v. Kxrs. of Keeler, 39 Yt. 550. The estate of the heir in the reversion, was a vested estate immediately upon the assignment of the dower. His title was then complete as a tenant in common with the other heirs, subject to the widow’s life-estate. During that life-estate, as well as after, his interest could be sold, mortgaged, attached, or set off on execution. 2 Washb. Real Prop. 222, 228, note, 270, 414; Stochwell v. Sargent et al. 37 Vt. 16 ; Oroxall v. Shererd, 5 Wal. 268 ; Brown et al. v. Lawrence etal. 3 Cush. 390. The partition and distribution of the estate among the heirs in 1836, was a complete and final proceeding. It was not a matter to be carried forward for future adjustment. It had no relation whatever to the right of the heirs in the reversion of the dower, nor to the subsequent partition of that reversion among them. The two proceedings are entirely independent and distinct.</p> <p>If the surplus advancement is to be brought forward by way of accounting, it should be reckoned correctly.</p> <p>We insist that the decree of the probate court made January 18, 1836, distributing the estate of Jeremiah French is final and conclusive as to the interest of David French in that estate. It is objected against that decree, that no petition was made to the probate court with reference to adjudicating upon the question of advancements ; and, also, that the records show that no notice was given to David French of any hearing with reference to such advancements. . The decree being within the appropriate jurisdiction of tbc probate court, will be presumed to have been made upon sufficient previous proceedings, unless the contrary appears from the record itself, and parol evidence in the premises is not admissible. Oollard v. Grave, Brayt. 18 ; Judge of Probates. Fillmore, 1 D. Chip. 420 ; Sparhawlc et als. v. Buell et als. 9 Yt. 41, 77 ; bid-dings et als. v. Smith 'et al. 15 Vt. 344 ; Doolittle et als. v. Holton, 28 Vt. 819.</p> <p>It cannot well be claimed that the decree was without the jurisdiction of the court, except so far as David’s share, then to be divided, was concerned. In the settlement of estates, probate courts are courts of general jurisdiction. Adams v. Adams, 22 Vt. 50; Holden v. Scanlin, 30 Vt. 177. And especially have they jurisdiction over all questions of advancements. Robinson v. Swift, admr. 3 Vt. 283; Adams v. Adams, supra. The decree then made was strictly within the jurisdiction of the court, both under the decisions and the statutes, and being unappealed from, can no more be opened or re-examined than the judgment of any other court. Rix v. Smith, 8 Vt. 365 ; Lawrence v. Englesby, 24 Vt. 42; Slade Sts. 349, § 79.</p> <p>The estate being intestate, it is not just that David French should receive one thousand dollars more than each of the other heirs.</p>

<p> Contract. Associations. Corporations. Vested Rights. Alteration of By-Laws. </p> <p>The legal interest in a contract is in him to whom the promiso is made, and from whom the consideration moves; and he alone, or his legal representative, can maintain an action at law thereon.</p> <p>In 1862, when F. became a member of a voluntary charitable association, the by-laws thereof provided that members paying the regular assessments, should be entitled to 25 cents per day during their sickness; that the society would pay 25 cents per day to the widow of each member, so long as she remained a widow, <fcc.; and that the society should not reduce its aid to the sick, so long as $20 remained in the treasury. Said by-laws also provided for amendments thereof, and how they should bo made. In 1868, said association was incorporated by act of the legislature, which provided that it might alter or change its by-laws. The by-laws in force at the time of the passage of said act, were continued in force till August, 1869, when the society adopted new by-laws, whereby it was provided that such widows should receive 25 cents per day, until they had received $200. F. died January 5, 1869. The plaintiff was his widow, and liad received the $200 aforesaid, and brought suit to recover at the rate of 25 cents per day, which would amount to more than $200. Held, that said society had the right to amend its by-laws as aforesaid, and that the plaintiff, having received said $200, was precluded from lurther recovery.</p>

The bill alleged that on the 28th of March, 1867, one Lord deeded a farm to the orator, in payment for which the orator then executed to him ten promissory notes, six of them for $200 each, and four for $3Q0 each, one .payable on the first day of September then next, one on the first day of April then hext, and the others annually thereafter, and secured the same by mortgage on said farm; that on the 8th of May, 1867, the orator conveyed said farm to the defendant Morse, who…

<p>Habeas Corpus Gren. Sts. eh. 94, §§ 10, 33.</p> <p>The relator was prosecuted on complaint and warrant before the city court of Burlington, under §10, ck. 94, Gen. Sts., for being found intoxicated; and was tried, convicted, sentenced to pay a fine and costs, and appealed. It appeared on trial, and was found by the court, that she was arrested on said complaint and warrant in such a state of intoxication as to disturb and break the public peace. The court thereupon inquired of her (but it did not appear whether under oath or not) if she had drank intoxicating liquor, and of whom she procured the liquor upon which she became intoxicated; and she refused to answer, because she would thereby criminate herself. Whereupon sbe was committed to jail, until she should answer, or be otherwise discharged. Held, that her imprisonment was illegal; and she was released on habeas corpus.</p> <p>The proceeding provided for by said § 10, has no relation to the proceeding provided for by § 33 of said chapter, which provides for the arrest of persons found intoxicated, by certain officers therein named, without warrant.</p>

<p>Trover, with counts in case. Plea, the general issue. Trial by jury, and verdict for the defendant, April term, 1873, Pier-point, Ch. J., presiding.</p> <p>It appeared that the plaintiff, a resident of Cambridge, Vermont, claiming to be the inventor of an improved thill-coúpling, and to have obtained letters patent therefor under the laws of tho United States, on the 18th of September, 1867, sold and conveyed to one C. B. Stowe, a resident of Waltham, Vermont, one undivided third of the right for the states of Massachusetts and Connecticut, and received from the said Stowe therefor, the sum of $500 in cash and the said Stowe’s three promissory notes of that date, for the sum of $500 each, all payable to the plaintiff or bearer; one, on or before December 1, 1867; one, on or before January 1, 1868; and one on or before February 1, 1868 ; that soon after said sale, Stowe went to Worcester, and other places in Massachusetts, and endeavored to make, sales of said patent; but failing, on the most diligent efforts, to make any sales, he returned home ; that about the time of the maturity of the first of said notes, in December, 1867, all three of said notes were delivered by the plaintiff to the defendant, whose place of residence and of business, was then, and ever since has been, in Burlington, he giving a receipt therefor as follows :</p> <p>“ Received, Burlington, December 5th, 1867, of E. R. Powell, three notes against C. B. Stowe, of Waltham, Vt., for the sum of five hundred dollars each, payable to said E. R. Powell or bearer, on the 1st day of December, January, and February next, respectively, and dated September 18th, 1867, and account to said Powell for same, with reasonable compensation, or return on demand.</p> <p>F. Woodworth,”</p> <p>That said notes were thereafter kept by the defendant until'the spring of 1869, when, nothing having been paid to him thereon, he surrendered them to Stowe, who tore off the surname of the signature to each note, leaving nothing but the initials of the Christian name; that on the first of October, 1868, and while the defendant so held said notes, he, by the p'aintiff’s written direction, endorsed on said notes as paid, the sum of $100 ; $40 of which was applied on the note first due, and $30 on each of the other two. It also appeared that in August or September, 1870, and after said notes were so surrendered to Stowe, the plaintiff, at Cambridge, demanded said notes of the defendant, and was informed by him that they had been so surrendered ; that after said demand, the defendant procured said notes from the said Stowe, also three other notes signed by Stowe, of precisely the same date, form, and tenor as those first mentioned, all of which have remained in defendant’s possession ever since; that in the spring of 1871, at Underhill, Yermont, the plaintiff repeated said demand, to which the defendant, not having received said notes, or any of them, from Stowe, replied, that if the plaintiff would call for the notes at Burlington, he could have them, and the plaintiff responded : “ You said you had given them up to Stowe, and the quicker you get them and give them up to me the better.” The testimony on the part of the defendant tended to show that the pretended invention and patent for which said notes were given, were of no value whatever, but were utterly and absolutely worthless, so that there was no consideration for said notes, and that Stowe was induced to make said purchase, and to execute said notes, wholly by the false and grossly fraudulent representations of the plaintiff. The plaintiff’s testimony tended to show the contrary. It also appears that within a reasonable time after the discovery by Stowe of the fraud which had been so practiced upon him, he informed the plaintiff of the discovery, and told him that he would have nothing further to do with the patent, and that he should not pay the notes; that immediately after this interview between the plaintiff and Stowe, and on the same day, the plaintiff applied to the defendant, who was acquainted with Stowe, and requested him to take the notes, and endeavor, by persuasive means only, to induce Stowe to pay something upon them; which the defendant, as a mere favor to the plaintiff, and without expectation of compensation, consented to do ; and thereupon the notes were delivered to the defendant, and the said receipt executed. The testimony on the part of the defendant, relative to the repudiation of the purchase, and of the notes by Stowe, and to the circumstances under which the notes were delivered to the defendant, was contradicted by the plaintiff', who testified that Stowe did not complain of any fraud, nor deny his liability on the notes; but that on the contrary he evinced a willingness to pay them ; and that on the same occasion referred to in the defendant’s testimony, Stowe, on the suggestion of the plaintiff that something could be made out of the patent if he could take hold of it, consented that the plaintiff might go to Massachusetts, and endeavor to make sales of the right; and that accordingly the plaintiff did go to Massachusetts, and before the first of October, 1868, succeeded in realizing from Stowe’s interest in the patent, the $100 which was endorsed on said notes as aforesaid. The defendant’s testimony farther tended to show, that the plaintiff, in the winter of 1868-9, and after his return from Massachusetts, Stowe still insisting upon a rescission of the contract between him and the plaintiff, and a return of said notes, and of the money so paid to the plaintiff by him at the time of the execution thereof, promised Stowe that the notes should be surrendered to him, and that the plaintiff would so direct the defendant by letter ; that afterward, and on the 24th of Febi uary, 1869, the plaintiff wrote the defendant as follows:</p> <p>“ Jeffersonville, Eeb. 24.</p> <p>E. Woodworth, Esq.</p> <p>Dear Sir: If C. B. Stowe will give you the</p> <p>deed I gave him of my coupling, and it has not been recorded in Washington, you may give him those notes.</p> <p>Yours Resp., E. R. Powell.”</p> <p>■ That shortly afterwards the defendant had an interview with Stowe, in which Stowe informed the defendant that said deed had been recorded ; but that if the plaintiff would consent to give up the notes, Stowe would return to the plaintiff his deed, and would at his own expense, reconvey to the plaintiff, and procure the re-conveyance to be duly recorded at Washington; that this proposition was soon afterwards communicated to the plaintiff by the defendant, and the plaintiff replied that he did not care anything about the deed or a reconveyance, and that the defendant might give up the notes to Stowe. The plaintiff’s testimony tended to show that this communication was not made to him, and that he did not direct the giving up of the notes. It further appeared that the defendant offered to return to the plaintiff the three notes so executed and delivered by Stowe to the plaintiff, as aforesaid, in their said mutilated condition, but with the full name of Stowe restored, and also at the same time offered to deliver to the plaintiff the three new notes made by Stowe as aforesaid, but that the plaintiff declined to accept them. As respects the time when this offer was made, the testimony was conflicting ; that on the part of the defendant tending to show tfyat it was made previous to the commencement of this suit; that on the part of the plaintiff tending to show that it was a few days afterwards.</p> <p>At the time of the offer by the defendant to return and deliver said notes as aforesaid, the parties were together in the same room, but were twenty feet apart, and the defendant hold the notes in his hand, but, the plaintiff refusing-, to accept them, they were not presented to nor taken by him ; and his uncontradicted testimony tended to show that he was not aware of any mutilation of the original notes, nor of the execution by Stowe of the new ones, until he was informed thereof during the trial.</p> <p>The testimony on the part of the defendant tended to show that, although Stowe had some property which was subject to attachment at the time of the maturity of said notes, he resolved, on discovering the fraud practiced upon him as. aforesaid, that he would not pay the notes, nor have any visible attachable property in his hands ; and that, accordingly, he had ever since kept his property so invested and concealed that it could not be reached by attachment. The plaintiff’s testimony tended to show that while the defendant held said notes, there was a time when a portion of the amount of said notes might- possibly, by sufficient vigilance, have been secured by attachment.</p> <p>The plaintiff requested the court to charge the jury,</p> <p>1. “ That if they find that the plaintiff made a demand of the defendant, at Cambridge, for said notes, and also find that the defendant neglected and refused to deliver said notes to the plaintiff at that time, or within a reasonable time thereafter, then the court should tell the jury that such a neglect and refusal was evidence from which they might find a conversion of said notes, unless they find said defendant had authority to surrender said notes, if the case was made out in other respects.</p> <p>2. “ That if the jury find that the plaintiff made demand of the defendant at Wires’s, in Underhill, for said notes, and also find that the defendant neglected and refused to deliver said notes to the plaintiff at that time, or within a reasonable time thereafter, as plaintiff’s testimony tended to show, then the court should tell the jury that such a neglect and refusal was evidence from which they might find a conversiun of said notes, unless they found that said defendant had authority to surrender said notes, the case being made out in other respects.</p> <p>3. “ That if the jury find that said right to said patent thillcouplings and the territory, was sold and deeded to said Stowe, and said $500 paid, and said three 'notes obtained from Stowe through the fraudulent representation of the plaintiff, as the defendant’s evidence tends to show, and they also find that after said notes were thus obtained, said Stowe was fully informed of said fraudulent representation, and of all the fraud that was committed in the said sale, and in obtaining said notes, and that after returning home to Yermont, the said Stowe agreed with the plaintiff for the plaintiff to go to Massachusetts and make sale of the right in Massachusetts and Connecticut, and endorse on said notes one third of the profits, as the plaintiff’s evidence tended to show, and pursuant to that agreement the plaintiff did go to Worcester, Massachusetts, and made sale of Worcester county, and had $100, one third of the profits, endorsed on the notes, as the plaintiff’s evidence tended to show, — that that would be a ratification of the contract, and a waiver of any right to rescind the contract on account of any fraud or misrepresentation in the trade in obtaining the notes.</p> <p>4. “ That the measure of damages was prima facie the face of the notes.”</p> <p>Except as hereinafter stated, the court omitted so to charge, and upon the points embraced in said requests, the court charged as follows:</p> <p>If the notes in question were surrendered by the defendant to Stowe, wrongfully, and without authority from the plaintiff, the surrender was itself a conversion of the notes by tbe defendant, and entitles the plaintiff to recover, without proof of a demand upon the defendant for the notes. But even if a demand were necessary in order to perfect the plaintiff’s right of action, neither the demand which was made at Oambridge^nor the one which was made at Underhill, was sufficient, unless at the time of the making of the demand, the defendant had the notes with him, so that he could deliver them. By the contract; under- which the notes were received by the defendant, he was not bound to seek the plaintiff for th'e purpose of delivering them to him ;• and, to make a demand of them effectual to charge the defendant, it was necessary iliafc it should have been made either at the defendant’s residence, or at his place of business, or at some place where he had the notes present, so that he could surrender them.</p> <p>It is claimed on the part of the plaintiff, that even if the notes were obtained from Stowe through the fraud of the plaintiff, it was necessary, in order to enable Stowe to avail himself of the fraud as a defence to the notes, that he should, on discovering the fraud, or within a reasonable time thereafter, have repudiated the notes, offered to restore to the plaintiff the right which Stowe acquired by his deed, and demanded his notes and -money. This is so. If, after Stowe had ascertained that he had been defrauded, he did not see fit to take advantage of the fraud, but concluded to go on with his contract, and see what he could do with the patent, and to abide by his contract, he had a right so to do ; and in that case, the plaintiff would have a right to hold him to his bargain. Upon this point, the evidence tends to show that when Stowe came back and met Rowell again, as he did about the time the first note fell due, he told Powell that he would not pay those notes ; that he had defrauded him in respect to the transaction, and that he would have nothing further to do with it; still, he did not offer to return the deed, and did not tender a re-deed. It appears that at this time negotiations were entered into between Stowe and the plaintiff, that the plaintiff would go to Massachusetts and see what he could do, and see if he could sell the right, and Stowe assented to it. Powell did go to Massachusetts and made a sale, as he says, and got some money, and that.Stowe’s interest in it amounted to $ 100, and that he directed that amount to be endorsed upon these notes in the manner spoken of in the testimony. Nothing further passed between the parties, I believe. If at the time these parties came together, and Stowe repudiated the transaction, and refused to pay the notes upon the ground that he had been defrauded in regard to it, and upon Powell’s representation that he could make a good thing, or that he could make it go if he could go down there and make sales — get the thing started — and Stowe assented to his going down, and he did go, and did make this sale, in the expectation that something might be made out of it, and returned, and nothing farther was said between Powell and Stowe in regard to this matter, and the thing was left right there, Stowe awaiting the result to see what Powell’s operation was going to amount to, the fact that he waited until Powell made these efforts to see whether he could put the thing in such shape that it would be a paying business, and result in something, and did not then repudiate the contract for that reason, would not deprive him of the right to repudiate it subsequently, after Powell had made his effort to establish the thing and make ita paying operation, if in so doing he failed to do it, and if Stowe, subsequently, within a reasonable time, repudiated the transaction, and offered to reconvey the right. Whether this thing transpired as the evidence tends to show, on the one side or on the other, is a question which is for the jury to settle upon the testimony. If the jury find that this fraud was perpetrated, and that Stowe simply waited the effort of Powell to put this thing in a train that would make it pay, before repudiating it — gave Powell that opportunity, and Powell made the effort and failed, and Stowe subsequently repudiated the transaction so that it operated as a repudiation, the plaintiff cannot recover by reason of this failure to repudiate it at once, if he delayed, at the request of Powell, for the purpose of enabling him to see what he could do in the way of showing that it was a profitable investment; pi’ovided he subsequently repudiated the transaction, and offered to return the deed, as the evidence tends to show was done through the defendant,</p> <p>On the subject of damages, the jury was instructed that although the plaintiff could have maintained an action on the mutilated or new notes which were offered to him by the defendant, as the testimony tended to show, and although he could have maintained an action on the original notes, even while they were in Stowe’s hands after the surrender of them to him by the defendant, if the surrender was unauthorized and wrongful, this would constitute no defence to this action ; because, in the prosecution of such suits, the plaintiff might be embarrassed, and subjected to expense and inconvenience in making his proof. But the fact that, as matter of law, he could maintain such suits, was proper to be considered by the jury in estimating the damages, if the jury should find, under the instructions of the court, that the plaintiff was entitled to recover at all. So, too, that the pecuniary circumstances of Stowe was a proper matter for the consideration of the jury in assessing damages. If he was insolvent, and nothing could have been collected of him, this would go in mitigation of damages; but, if the case was made out in other respects, the plaintiff would still be entitled to nominal damages, at least.</p> <p>The rules of law laid down in the charge as above recited, were suitably explained and illustrated ; and the charge upon all other points involved in the case, was correct and satisfactory.</p> <p>To the omission of the court to charge a,s requested, so far as there was such omission, the plaintiff excepted.</p> <p>The first and second requests of the plaintiff should have been complied with. The refusal and neglect of the defendant to deliver the notes to the plaintiff at the time of the demand, or within a reasonable time thereafter, was evidence of their conversion. A demand at his residence or place of business, was not necessaiy, to make it the duty of the defendant to deliver the notes to the plaintiff. Gragg v. Hull, 41 Yt. 217 ; Magee v. Scott, 9 Cush. 148. Even if it was the. duty of the plaintiff to make a demand for the notes at the defendant’s residence or place of business, the defendant not having put his neglect or refusal to deliver them on that ground, and saying that he had surrendered them to Stowe, precludes him from setting up the defence of a want of a demand at the defendant’s residence or place of business. Albee, admr. v. Cole,. 39 Yt. 319. If what the plaintiff said to the defendant on the occasion of the demand at Wires’s, “ The quicker you get them and give them up to me the better,” was a waiver of any previous conversion of the notes, as the court charged it was, then the charge that, “ if the defendant wrongfully and without authority surrendered the notes, that was itself a conversion of them, and entitled the plaintiff to recover without proof of a demand,” would not cure the error in charging “ that the demand at Wires’s was insufficient, unless the defendant had then the notes with him.”</p> <p>The plaintiff, by his third request, asked foi a specific charge based on a state of facts that the evidence tended to show, and the charge should have been given substantially as ashed for, if it embodied a sound proposition of law. The court omitted to comply with that request in terms or in substance.</p> <p>A party to a contract cannot, after having been fully informed of all the facts that constitute such a state of things as would entitle him to rescind a trade, afterwards endeavor to reap further advantages under the contract, and, failing to make much by standing to the trade, as he was in hopes to, then rescind. The party wishing to rescind must act promptly when informed of the fraud. Downer v. Smith, 32 Vt. 1; Maiteson v. Holt $ Hawkins, 45 Vt. 336 ; 5 U. S. Dig. 35, § 158 ; 10 Shep. 35; 12 Barb. 641; 14 lb. 594; 17 Cal. 380.</p> <p>If, after the trade was made and the notes given, Stowe was fully informed of the fraud, and after that, he agreed and consented to have the plaintiff go to Massachusetts and make sale of the patent, and' have one third of the profits that might be realized from any sales that the plaintiff might succeed in making, endorsed on the notes, and the plaintiff accordingly did go, and made sale of Worcester county and realized $300 therefrom, and had $100 endorsed on the notes, that would be a clear ratification of the trade, and would put Stowe in a position that he would not be entitled to rescind the trade on account of the fraud. Downer v. Smith, supra, and cases there cited ; Hadley v. House, 32 Vt. 179; - Harrington v. Lee, 83 Vt. 249 ; Mallory v. Leach, 35 Vt. 156 ; Kingsley v. Wallis, 2 Shep. 57 ; Ragan v. Gaither, 11 Gill & J. 472 ; 10 Humph. 577 ; 12 U. S. Dig. 226, § 103 ; Masson v. Hovel, 1 Denio, 69 ; Negley v. Lindsay, 67 Penn. (5 American) 427 ; James v. Emery, 40 N. H. 348 ; Hilliard Sales, 317, 319 ; Hoffman et al. v. Noble et al. 6 Met. 74 ; Hunt v. Silk, 5 East, 449 ; 20 How. 150.</p> <p>It was error for the court to omit to charge in accordance with the plaintiff’s fourth request. In an action of trover to recover for notes executed by persons other than the defendant, when a conversion of the notes is proved, the measure of damages is, prima facie, the face of the notes. Robbins v. Packard, 31 Vt. 570.</p> <p>Previous to either of the demands by the plaintiff upon the defendant for a return of the notes, they had confessedly been surrendered to Stowe by the defendant. If this surrender was unauthorized by the plaintiff, as his testimony tended to show, it was, of itself, a conversion of the notes by the defendant, and no demand was necessary. If the surrender was authorized by the plaintiff, as the defendant’s testimony tended to show, no subsequent demand upon him could create a cause of action. The plaintiff’s first and second requests were, therefore, wholly impertinent and immaterial, and the court would have been justified in wholly omitting to notice them. And even an erroneous charge upon this point, would, by reason of its immateriality, constitute no proper ground for reversing the judgment. Learned v. Bellows, 8 Vt. 79 ; Houghton v. Slack, 10 Vt. 520 ; Fullam v. Goddard, 42 Vt. 162; 5 Pet. 135 ; 14 Wal. 874, 417, 569 ; 10 Wal. 528. But if a proper demand would have been effectual for any purpose, a demand at Cambridge or Underhill, when the notes were not present, could have no effect upon the plaintiff’s right to recover.</p> <p>The plaintiff’s third request was properly denied, and the charge upon the point therein embraced was correct. If, on discovery by Stowe of the fraud, and his repudiation of the contract, the plaintiff, as he himself testified, proposed to make further personal efforts to dispose of Stowe’s right in the patent, and Stowe assented, in the belief or hope created by the plaintiff’s assurance, that the purchase by Stowe could thus be made advantageous to him, his delay in rescinding, thus caused, did not deprive him of the right to rescind afterwards</p> <p>As the jury did not reach the question of damages, the question presented by the plaintiff’s fourth request is wholly immaterial here; and if it was not so, the plaintiff’s exception upon this point would be unavailing, because the notes having been partially paid, the measure of damages was not, “prima facie, the face of the notes.”</p>

Case, with counts in trover. The plaintiff introduced evidence tending to show, that the intestate went to the defendants’ house to board some time in May, 18682 and carried with him a bedstead, bed… Held: pro forma, and directed a verdict for the defendants; to which the plaintiff excepted. The court erred in holding that the plaintiff was not entitled to recover against both or either of the defendants ; and the case should have been submitted to the jury.

<p>Replevin of Intoxicating Liquor. Replevin Bond. Gen. Sts. ch. 94, §§ 40, 41. Ib. ch. 35, § 13.</p> <p>The provisions of §§40, 41, ch. 94, of the Gen. Sts., relating to the replevin of liquor seized by an officer as intoxicating, do not dispense with the necessity of a replevin bond in such cases, as required in other cases of replevin.</p> <p>The replevin of liquor seized on complaint and warrant as intoxicating, is of that class of replevin provided for in §13, ch. 35, of the Gen. Sts.; and a bond lilce that required in replevin by a defendant, of goods attached on mesne process, is not proper in such casos. '</p> <p>In replevin for liquor seized as aforesaid, where the action was dismissed for want of a proper replevin bond, it was held, that tho defendant was entitled to a judgment for a return of tho property, with damages for the taking thereof by the replevin, and to an order that the replevying officer return the property to the defendant, at the place whence he took it.</p>

General assumpsit. Plea, the general issue, and trial by the court, September term, 1873, Royce, J., presiding. The case was tried upon the following agreed statement of facts: “ The plaintiffs were merchants and partners, residing and doing’business at St. Albans, Yt. They employed the defendant to solicit orders for and sell an article known and called ‘ prize candy,’ on commission.

<p>Assumpsit. The plaintiff gave evidence tending to show, that he made a contract with the defendant, by which the defendant agreed that in case the plaintiff would take and pay for certain stock in a company called the Missisquoi Oil Company, the defendant would repurchase said stock of the plaintiff, upon certain considerations and conditions stated in the testimony. The defendant was a witness in his own behalf, and denied the making of the contract as claimed by the plaintiff, and testified that he had no interest in the oil company in question, at the time named, except that he was the owner of a certain amount of its stock. He stated that he might have told the plaintiff that one Hobby was willing to bind himself to- purchase the stock in the manner claimed by the plaintiff; but that bo never made any such statement in his own behalf. On cross-examination, the plaintiff’s counsel put the following question to the defendant: “ Had you such interest in procuring the stock of the Missisquoi Oil Company to be taken, as to induce you to offer to any person, to buy and take bis stock off his hands, in case he would subscribe for and pay for such stock ? ” This question was objected to by the defendant’s counsel, and the court refused to allow it to be put; to which ,tlie plaintiff excepted.</p> <p>The plaintiff then inquired of the defendant, if he had such interest in said company as to induce him to make such an offer to Charles Wyman. To this question the defendant objected, and the court refused to allow the same to be put; to which the plaintiff also excepted.</p> <p>The plaintiff then inquired of the defendant if he did make such an offer to the said Wyman ; and to this the defendant objected, and the court refused to allow the question to be put; to which the plaintiff also excepted.</p> <p>The trial proceeded, and the defendant introduced the testimony of one Wells and one Duelos, whose testimony tended to corroborate his own testimony, as to the manner in which the plaintiff’ took his said stock. In the course of the trial, testimony was introduced respecting the organization of said company, and the issue of its stock, from which the plaintiff claimed that it appeared that the defendant and said Wells and Duelos were acting fraudulently in said issue of stock, and that the whole affair was fraudulent, .and that the fact that they were, in the very transaction in question, guilty of such fraud, was a circumstance tending to diminish the credibility of the defendant and his witnesses as to the transaction in question. Upon this point the court charged as follows :</p> <p>“ There has been a great deal, of testimony put in, in reference to the transactions of this oil company ;• the act of incorporation has been put in ; records of its meetings ; and ail that. That has nothing to do with this case, unless you cau from that testimony, derive some aid in coming to a conclusion about what these parties actually contracted to do in reference .to this particular transaction. We might concede that this was all a fraud from the start, yet this concession has no influence with you upon the question about whether any such contract was made or not. It don’t affect the right of these parties. If you concede, upon the other hand, that the defendant actod in a fair, honorable - manner, and that there was no fraud, that does not help him any, provided you find he made this contract as Mr. Bishop claims. Hence, all that testimony that has been introduced in reference to the formation of this company, the number of shares, who held them, and what they held them for, is wholly immaterial^ except as it aids you in coming to a conclusion as to the truth of what Mr. Wheeler or Mr. Bishop state in reference to this transaction about the 500 .shares of stock. There is a great deal of that testimony that may help you in arriving at a just conclusion in reference to that particular question. I will say to you, gentlemen, that if the question was between two of you jurymen, concerning the sale of a horse, about what the contract was, the isolated fact that one of you defrauded the man you got it óf, has no relation to the contract standing alone. Bo, gentlemen, all these matters relating to what the company did in Pennsylvania, unless connected •with the subject-matter, so as to enable you to judge, under oath, as to what took place when Mr. Bishop took this stock — unless it is so connected that you can weigh it in connection with tj)ese questions — it is to be laid entirely out of the case. Hence, gentlemen, I do not feel called upon to follow the counsel upon both sides, in reference to this stock, and in reference to the organization of that company, and to give you particular instructions about all that has been said in argument upon the one side or the other, as to the fairness of this transaction or that transaction, connected with this oil company. If you can derive any light out of the whole thing, that enables you to judge of the truthfulness of what Mr. Wheeler or Mr. Bishop has said, weigh it for that purpose, and give it its proper influence.” To which the plaintiff also excepted.</p> <p>The questions proposed- by the plaintiff in cross-examination, were pertinent to the issue in relation to the interest of the defendant in the oil company; an issue which he had raised in his examination in chief. The questions were pointed directly to the interest which he had denied ; and, if answered in the affirmative, as we have a right to assume they would have been, this testimony would undoubtedly have gone a great ways, in correcting the erroneous impression which the defendant had skillfully conveyed to the jury in relation to his interest in the company, at least so far as that interest bore upon his motive to make this contract. 1 Greenl. Ev. § 446 ; Batchelder v. Kinney, 44 Vt. 150.</p> <p>The charge was erroneous. It was well calculated to mislead the jury into believing that it was their duty to give the samo weight to the testimony of a dishonest man, that they would to au honest one. Unless looked at critically, it carries the idea that all questions of fraud on the part of the defendant and his two witnesses, are to be loft out of their consideration of the case.</p> <p>It was erroneous in what it did not contain. The jury could not so have understood it. The plaintiff’s claim was, that the jury should bo instructed how to weigh the testimony of the defendant and his two witnesses, in the event of the jury’s finding a conspiracy among them to defraud the plaintiff, and others; but the charge is silent upon that point. The court stated the case to the jury, upon the concession that the oil company was all a fraud, and the defendant the originator and executor of that fraud. While such a state of facts might not have “ any influence upon the question whether any such contract was made or not,” it ought to have had some influence as to the amount of credit they should give to the defendant and his witnesses. The plaintiff was entitled to specific direction to the jury, that if they found that tiiis oil company was “ all a fraud from the start,” they should weigh that fact in connection with the credibility of the defendant and his two witnesses.</p> <p>The- court did not err in refusing to admit the evidence offered, as it was remote, and irrelevant to the issue between the parties, and no inference could be drawn from it. It- is a well-settled general rule, that the credit of a witness cannot be impeached by proof of particular immoral conduct, or of particular facts. 1 Greenl. Ev. § 461 ; 1 Stark. Ev. 145, § 28 ; Swift Ev. 143 ; 2 Phil. Ev. 430, §5; United States v. Van Sickle, 2 M’Lean, 219; Jackson v. Lewis, 13 Johns. 504; Walker v. The State, 6 Blackf. (Ind.) 1; Bakeman v. Rose, 14 Wend. 105 ; s. c. 18 Wend. 146; State v. Randolph, 24 Conn. 363 ; Commonwealth v. Churchill, 11 Met. 538; Commonwealth v. Moore, 3 Pick. 194; Roitt v. Moulton, 1 Foster (N. EL), 586; Barton v. Morphes, 2 Dev. (N. ,C.) 520 ; Rixey v. Bayse, 4 Leigh, (Ya.) 330; Sorrelle v. Craig, 9 Ala. 534; Nugent v. The State, 18 Ala. 521; Thayer v. Boyle, 30 Me. 475 ; Phillips v. Kingsfield, 19 Me. 375; State v. Bruce, 25 Me. 71; Frye v. Bank of Illinois, 11 111. 307 ; Crabtree v. Kile, 21 111. 180; Thurman v. Virgin, 18 B. Monr. (Ky.) 785 ; Craig v. Nfai? of (97ao, 5 Ohio, 605 ; McDonald v. Garrison, 2 Hilton (N. Y.) 510 ; Boon v. Weathered, 23 Texas, 675 ; 4 Watts, 380 ; 6 Black, 1; 3 S. & R. 337; 11 S. & R. 199. The courts of this state, at an early period, adopted the rule, which has been uniformly adhered to, that evidence as to the character of a witness, should be limited to his general character for truth and veracity, and that evidence as to particular instances of moral delinquency, is not admissible ; his character for truth being all that is pertinent —and all that the jury should inquire into. Morse v. Pineo, 4 Vt. 281; State v. Smith, 7 Vt. 141; Spears v. Forest, 15 Vt. 435 ; Crane v. Thayer, 18 Vt. 162; Willard v. Goodenough, 30 Vt. 393, per Barrett, J.</p>

<p>Abrumdsit. The defendants jointly pleaded the general issue, offset, a special plea in bar, and gave notice of special matter in defence. The case was referred, and the court, at the September term, 1878, rendered judgment on the report for the plaintiff against all the defendants, for the full amount reported by the referees; to which the defendant excepted. The cause of action grew out of, and was founded upon, a written contract not under seal, whereby the plaintiff leased a farm to the defendant Ballard for ono year, with certain stock thereon, for which said Ballard was to pay certain rent therein reserved, and do certain other things, some of which are mentioned in the opinion. Said contract was signed by the plaintiff, and immediately after his signature was the following: “ For the payment of said contract being fulfilled on the part of the said J. N. Ballard, we the undersigned will become responsible,” which was signed by all the defendants. Said contract purported to be a contract between the plaintiff and the defendant Ballard only, and the other defendants were not mentioned in the body thereof. It appeared from the referees’ report, that the defendant Ballard accepted said contract, and entered into the possession'and enjoyment of said farm and stock thereunder; but that neither of the other defendants ever received any personal benefit under said contract, nor from the occupancy of the said Ballard thereunder ; but that their liability was based solely upon the contract, and their signing the same as aforesaid.</p> <p>The defendants Blake and Baker, having joined with the defendant Ballard in all of their pleas, are now estopped from setting up any defence that is not a defence for Ballard, or claiming any judgment that Ballard is not entitled to. They cannot now claim that they are improperly joined with Ballard, that they are sureties or guarantors, and should have been declared against as such. This is a question that should have been raised by their several pleas. 1 Chit. PL 566; 9 Conn. 367. The defendants Blake and Baker are declared against according to their liability. They promised to perform the conditions of the lease, if the plaintiff would permit Ballard to occupy his farm. The same clause of the lease that made .Ballard liable on the lease, made defendants Blake and Baker liable.</p> <p>A joint liability must appear on the face of the pleadings, and must be proved as a fact on trial, where several parties are sought to be held liable jointly. 1 Chit. PL 43. Defendants Blake and Baker cannot be held jointly liable with defendant Ballard in the same form of action, and under the same declaration and count, because of the distinctive difference between the nature and legal effect of their several contracts and promises. The declaration must be sufficient to hold all the defendants to a trial, provided upon the evidence all are found alike liable, in order to enable the plaintiff, under our statute, to maintain judgment against any one or more of them. Reynolds v. Field, 41 Yt. 225. The defendants are not estopped from denying their joint liability by pleading jointly the general issue and other pleas, all of which were traversed by the plaintiff. The plea of the general issue threw upon the plaintiff the burden of proving his entire case by evidence corresponding with and sustaining hffi allegations. One of the defendant’s several pleas, cannot be used by the plaintiff as an admission of a fact denied by another. 1 Saund. PI. & Ev. (5th Am. ed.) 59; Montgomery v. Richardson, 5 C. & P. 247; Ingraham v. Lawson, 2 M. & R. 253.</p>

<p>Trespass for a cow. Plea, the general issue, and trial by jury, September term, 18T2, Royoe, J., presiding.</p> <p>The plaintiff’s evidence tended to show, and it was not disputed, that the defendant took the cow in question .from the plaintiff’s possession, and that the plaintiff’s sole title to said cow was derived from his purchase thereof from one Hibbard Leonard ; and the question was, whether Leonard had such ownership of the cow as against the defendant, as to enable him to pass any interest therein to the plaintiff. The plaintiff’s evidence further tended to show, that the said Leonard and Zebulon Leonard leased a farm of the defendant for three years from the first day of April, 1866, and went on to the same before the execution of the lease. The defendant offered said lease in evidence, and it was daled April 1st, 1866, and contained the following provisions ;</p> <p>“ Said Leonards, during the three years, are to cut the bushes, pull the stumps, and clear the land called the pasture, * * * * supposed to be sixty’acres more or less ; the land to be cleared as fast as possible, but all to be plowed and got into a crop the third year, and as much sooner as possible. * * * * The coal job, so called, is also to be cleared and plowed during the present year, and got into a crop — Leonards to do the work, same as in the upper pasture. In consideration of the above work, to be done and performed at the expense of said Leonards wholly, Clark to give them each, this spring, one good two-year-old heifer that is coming in a cow, and they to have half of all crops raised on the new land to be cleared as above described. * * * * To be thoroughly plowed in narrow lands sufficient to let the water run off; the job to be worked at as much as possible this year ; the burning of the brush, loose stumps, and timbqr, to be done this season ; the stumps that can’t be pulled by a yoke of oxen, to be dug and taken out next season, and plowed, meaning fall of 1867, so there shall be a crop of grain or grass on the whole of it in the summer of 1868. Leonards’ half of all crops and increase to be holden by, and belong to, Clark, until all Leonards’ obligations and agreements in this contract are fulfilled, together with their two cows, horse, wagon and harness, and any other property they may possess. Clark reserves at all times the right to sell this farm, by giving Leonards notice in the fall of each • year, after his crops are secured ; in which case, Leonards’ time would expire the following 1st of April. Leonards to have no wool or lambs this spring; but each spring hereafter, during the existence of this lease, he is ro have one half of lambs.” * * *</p> <p>The defendant assigned said lease to. L. D. Clark, on the first day of January, 1867, to whom he had sold the farm, together with all stock therein described. It was not claimed on trial that said Leonard acquired any title to said cow, except such as he acquired by said lease, and by the facts testified to by him. Upon this point he testified in chief as follows :</p> <p>Me and my brother was cutting bushes ; we had been cutting bushes there quite a spell; Mr. Clark came along in the afternoon and says : “You are doing this job nice, and I will give each of you a cow, because you are doing this job in good shape.” Says he, “’ When you go home to-night, tell your woman so.” Says he, “ Some time when I am up, you will pick out your heifers, and they will be the ones you will have.” After m'y brother went away, I picked out my heifer. Mr. Clark says: “ Everybody s.ays I am going to cheat you out of everything you make here.” Says he, “ I cannot cheat you out of this cow I am going to give you ; nor no one else.” Says he, “ Nobody can take it for debts, or anything else ” Says he, “ I have no claim after now upon the heifer.”</p> <p>On cross-examination he testified that he picked out the heifer after the lease was made, when no one was present, but that said conversation was before the lease was made. He also testified to a subsequent conversation with the defendant, when the defendant asked him how he would swap heifers, and he told him he had sold'his to the plaintiff, and the defendant replied, if he had sold her he could not swap very well. There was no other testimony tending to show that said Leonard had title to said cow. It appeared that Leonard sold said cow to the plaintiff some time in March, 1868, a few days before he left said farm, and that on the 15th of January 1867 and 1868, he was indebted to the plaintiff on transactions growing out of the lease, to the amount of two promissory notes put into the case.</p> <p>The defendant’s testimony tended to show that said Leonard had not fulfilled the conditions of said lease, in that only eleven acres had been cleared, up to the time he left the farm, and that tlie eleven acres were not cleared fit for plowing.</p> <p>The court charged the jury, among other things, as follows :</p> <p>“But there is another view of the case which seems more troublesome for the defendant. When he testified, he said the Leonards did not fulfill the lease, in that they only cleared eleven acres, when they were to clear about sixty. There is no proof introduced by Clark of any breach of that contract, except in that particular. It seems to me the proper construction to be put upon that lease is, that the parties were to have three years in which to perform this contract, and that the title to this cow passed to Leonard, in consideration of their promise to perform this work. Now, who is entitled to the possession of the cow for the three years ? Clark is not to know in 1868, but that the work will be done in 1869. He has the full time ; and there is no stipulation or agreement in that contract upon the part of Leonard, that this property is to remain in the possession of Clark; but that he simply stipulates a lien upon the part of Clark; so that it seems to me that within a week after Clark had delivered over that heifer, Leonard would have an undoubted right to sell his interest in her; and the amount of interest would have to be dependent upon whether he performed his contract or not. But I think he had a right to sell the interest he had in the property. It seems to me that he conld transfer his right, and that Clark had no right to that heifer, until there had been a breach of this condition in the contract; and there could be no breach until the expiration of the time in which the party was to fulfill it. Taking this view of the case, it seems to me that the defendant had no right to the possession of this cow at the time he took possession, and there is no dispute about the fact that Hogle was not only in possession of the property, but that he had acquired all the interest that Leonard had in this cow. He bought the cow, it seems, and paid for her, but he had all the right that Leonard had, and Leonard had the right to retain the possession of the property until the time expired within which he was to fulfill this contract. Taking that view of the case, it seems to me that the plaintiff is entitled to recover.”</p> <p>The coart then submitted a special verdict to the jury, which they returned, and thereby found the defendant guilty ; that the value of Hibbard Leonard’s interest in the cow at the time of the taking by the defendant, was $60, the full value of the cow ; that there was a gift of the cow to said Leonard, perfected by delivery, as testified to by said Leonard ; and that the plaintiff’s damages were $76.20. The defendant thereupon filed a motion in arrest of judgment; but the court overruled the same, and rendered judgment on the verdict for the plaintiff. To the charge of the court as above detailed, to the submission of said special verdict to the jury, and to the overruling of said motion in arrest, the defendant excepted.</p> <p>The charge of the court was manifestly erroneous. Bigeloiv v. Huntley, 8 Yt. 154; Swift v. Moseley, 10 Yt. 208; Grant v. King cf* Comstock, 14 Yt. 367 ; Buckmaster v. Smith, 22 Yt. 204; Davis et al. v. Bradley, 24 Yt. 55; Armington v. Houston, 38 Vt. 448 ; Bucklin v. Beals et al. 38 Yt. 653. Leonard’s title to the cow would not become perfect until the conditions of the lease had been performed, or determined by the act of the parties ; and, granting that Leonard had at the time of the sale to the plaintiff, fulfilled all the covenants, the contract only gave him the right to possession ; the general right of property remaiued in defendant until the conditions were performed. The sale determined the condition, and gave the defendant the right, peaceably, to recover possession of the cow wherever he might find her.</p> <p>The submission of the special verdict was error. The court had already ordered a verdict generally, for the plaintiff, upon the ground that the defendant had not the right to the possession of the cow at the time of the alleged trespass. What, then, was left for the jury to do, but to find the value of the property ? The jury were allowed to find specially, a gift, when the written contract between the parties showed ■ upon wh'at terms and conditions the title was to become absolute. The jury were allowed to find specially, whether the gift between the parties to this lease, became perfected by delivery after the execution of the lease, •when the lease put the property in his possession, subject to the conditions ; more than all this, as between the parties to that lease, it was not necessary that actual delivery should have been made. Bends v. Morrill, 38 Yt. 153. The verbal transaction testified to by Leonard was merged in the written agreement, and the cow was finally selected in accordance with the terms of the written contract. The jury should not be allowed to find whether a gift was perfected. That is a question of law, not of fact. The exceptions find that Leonard’s interest in the property grew out of the following covenant: “In consideration of performing the above work, Clark 'to give them this spring, each a cow ; ” and afterwards a lien is expressly reserved on that cow. The parties, it is true, called it a gift, and whether it was a gift or sale, was a question of law. This special verdict is every way improper. It permitted the jury to find whether there was a gift of the cow. Was that gift absolute or conditional ? Was it under the contract, or independent of it ? If independent of the contract, it was permitting the jury to find a material fact, when there was no testimony to support it. Manwell, admx. v. Briggs, 17 Yt. 176 ; Dean v. Dean's Estate, 43 Vt. 337.</p> <p>The court erred in directing a verdict for the plaintiff. The . defendant testified, and the point was uncontradicted, that at the time Leonard left the farm he had only cleared eleven out of sixty acres of land, and that none of the land so cleared was fit for plowing, and that Leonard was indebted in a large sum under the lease, and it was not claimed that the conditions were performed.</p> <p>The question is, was Leonard’s interest such an one as could be sold to the plaintiff, as against the defendant ? Of this there can be no doubt, as appears from the facts in the case. If there was a sale of the premises, notice should have been given Leonard, in accordance with the stipulations of the lease, which was not done in season. If, however, he had notice at a proper time, the language, “ Leonard’s time would expire the following 1st of April,” would only apply to the occcupancy of the farm, and not to the stipulations in the lease in regard to the clearing of the land. He clearly had three years in which to perform that part of the contract in the lease, and there is no evidence that he waived his right to such performance. Hence he did not break the conditions of the lease. In this respect the charge of the court was correct. But, if there was error in this respect, still, the defendant took the cow before the 1st of April, and while Leonard was in possession of the premises. This would constitute the defendant a trespasser. The defendant parted with his title to the cow on the 1st day of January, 1867, by his assignment of the lease, together with all the stock therein described. Consequently, he had no interest in the cow at the time of taking.</p> <p>It may be claimed' that Leonard, in the sale of his interest in the cow, was practically defeating the lien of the defendant, whatever it was. This might be the case, if the defendant had reserved a lien that the cow should remain his property until paid for ; but he did not. The defendant, as matter of law, could not claim the cow under such a lien as he may have acquired under the -lease, as against attaching creditors, or Iona fide purchasers without notice.</p> <p>The jury returned a special verdict, in which they found the fact of an absolute gift, after the execution of the lease. This alone is decisive of the case.</p>

<p> Evidence. Sufficiency of Notice of Injury on Highway. </p> <p>What a witness who is not a party, states out of court, is not evidence in chief to prove that the fact is as stated by him; but can only be shown to discredit his testimony at the trial, when contrary to such statements.</p> <p>The plaintiff gave the defendant notice, that sho was injured on the road leading from Fairfield Centre to Bast Fairfield, on the 21st of June, 1871, and that she claimed damage; and it appeared that the distance between those two places, was four miles and a half. Held, that the notice was too indefinite as to the place of accident, and insufficient.</p>

<p> Evidence. Sheriff’s Sale. Privileged Communications. </p> <p>To prove the rendition oí' a judgment, and the record thereof, the plaintiff offered in evidence an execution which recitod the judgment m the usual Jorm, and proved by parol, that diligent search had been made for a record of the judgment, hut that none could be found'; and showed by an attorney, that the debtor applied to him to have judgment rendered against himsolf in favor of the creditor, upon certain notes which the latter hold against him ; that the attorney issued the execution offered in evidence, and presumed he issued antecedent process, as such was his practice in such cases; and also showed by the justice who signed the execution, that said attorney and the debtor came to his office, and confessed judgment in favor of the creditor, but he did not recollect the amount. Held, that the evidence tended to show the rendition of a judgment by confession, and that the record thereof was lost.</p> <p>A sheriff told his deputy, when he directed him to sell certain property which he himself had advertised to be sold on execution, that there would be no one present at the sale but the execution creditor. Held, that proof thereof was not admissible, to show the sale collusive and fraudulent, as the rights of the parties could not he affected by what the sheriff said.</p> <p>The defendant offered to show, for the same purpose, that sale was made at an unusual place for such sales to be made. Held, inadmissible.</p> <p>M. told his attorney who assisted him in the confession of a judgment aga-insfc himself in favor of a creditor, that he did it, that he might have his piano sold on execution, so his other creditors could not attach it. The court allowed the attorney to determine whether he would disclose the communication, and he refused. Held, that the communication was privileged, and that tho fact that the court allowed the attornoy to determine whether ho would testify or not, was not a ground of complaint, as the result was the same.</p>

Assumpsit on a promissory note payable to the order of J. S. Newcomb, and indorsed in blank by him, and also by Hiram Bellows and C. S. Hogle, and purporting to be signed by the defendant. Plea, the general issue, with notice that the defendant would deny that said Newcomb indorsed said note, and would prove that said note was a forgery. Trial by jury, April term, 1873, Royce, J., presiding.

Debt on tax collector’s bond. The defendant Brainard pleaded non est faclum, and gave notice of special matter in defence. Trial by jury, April term, 1878, Ross, J., presiding.

General Assumpsit. Plea, the general issue, and trial by jury, September tex-m, 1873, Royce, J., presiding. The plaintiff’s minor daughter made a contract with the prudential committee of the defendant district, in November, 1870, to teach the then next winter school for the term of twelve weeks ; and this action was brought to recover for the entire term. She commenced the school on the 28th of said November, and taught two weeks.

<p>General Assumpsit. Plea, the general issue, and trial by jury, April term, 1878, Royce, J., presiding. The plaintiff claimed to recover $200 which he loaned to one B. B.. Bronson, an agent of the defendant, and for which said Bronson, a few days afterwards, executed his own note to the plaintiff’s wife, not negotiable. The other facts are sufficiently stated in the opinion. When the testimony was closed on the part of the plaintiff, the defendant claimed that the note merged the plaintiff’s cause of action against the defendant, and the court so held, proforma, and directed a verdict for the defendant; to which the plaintiff excepted.</p> <p>Bronson was the general agent of the defendant, and was authorized to conduct its business.' It was clearly within the scope of his authority to borow the money; and the liability of the defendant is the same, whether the contract was made in its name, or the name of the agent. Cochran v. Richardson et al. 33 Vt. 169 ; French v. Price et al. 24 Pick. 13 ; Story Agency, §§ 269, 270, 279, 446, 447. The indebtedness of the defendant was not discharged by the acceptance of the agent’s note. The giving and taking of a negotiable promissory note, is only prima facie evidence of payment, and any testimony which tends to show that it was not the intention of the parties to give or receive it as such payment, should go to the jury; and if there is any evidence of fraud, or if the plaintiff accepted the note in ignorance of the facts, or under misapprehension of the rights of the parties, the taking of the note is not payment. Hutchins et al. v. Oleutt, 4 Vt. 549 ; Torrey v. Baxter, 13 Vt. 452 ; Dennison v. Tyson, 17 -'Vt. 549 ; Farr v. Stevens, 26 Vt. 299 ; Dickinson v. King, 28 Vt. 378; Qollamer v. Langdon, 29 Vt. 32; Wait v. Brewster, 31 Vt. 516; French v. Price et al., supra-; Mancely v. McG-ee et als. 6 Mass. 142 ; Melledge v. Boston Iron Co. 5 Cush. 158 ; Emerson et al. v. Providence Hat Co. 12 Mass. 237 ; Fowler v. Ludwig, 34 Me. 455 ; Shumway v. Reed, lb. 560. The principle that a negotiable note is only prima facie evidence of payment, is not changed by the fact that the note is given by the agent in his own name. Mancely v. McGee, French v. Price, Milledge v. Boston Iron Co., Emerson v. Providence Hat Co., supra ; and the cases in which it is said that the principal is thereby discharged, conform to that rule, subject to be controlled by the intention of the parties. Rathbone v. Tucker, 15 Wend. 498 ; Hyde v. Paige, 9 Barb. 150 ; Runkeen v. Deforest et al. 18 lb. 143 ; French v. Price, supra. This note is not prima facie evidence of payment, because it is not negotiable. The principle upon which the decisions of Maine, Massachusetts, and'Vermont, rest, against the great weight of authority of the other state, and the United States courts, as well as the common law, is, that the principal shall not be liable to have the note twice collected. Thatcher v. JDinsmore, 5 Mass. 299 ; Soar v. Olute, 15 Johns. 224 ; Trustees v. School Fund, 12 Me. 381; Hitts v. Mower, 181b. 361; Ufanee^ v. McGree, Fowler v. Ludwig, supra ; 5 Gray, 567.</p> <p>There could be no recovery upon the note, because it was not the note of the defendant. Stackpole v. Arnold, 11 Mass. 27 ; Story Agency, § 147.</p> <p>The plaintiff is not entitled to recover upon the count for money had and received, because the credit was given to Bronson ; and that would be so, even if Bronson was authorized to borrow money upon the credit of the company. Story Agency, §§ 288, 289.</p> <p>The giving and acceptance of the note of Bronson, precludes a recovery by the plaintiff. French v. Price et al. 24 Pick. 13; Paige v. Stone et al. 10 Met. 160 ; Robinsons. Surlburt et al. 34 Yt. 115 ; Arnold v. Sprague, 34 Yt. 402 ; Oollamer v. Langdon, 29 Yt. 32 ; Sutchins v. Orcutt et al. 4 Yt. 549.</p> <p>The money for which the note was given, was charged by Bronson to the company, and was credited and allowed in settlement before this suit was brought. An authority to employ hands and pay them, and to purchase wood, &c., did not authorize Bronson to bind the company by note, nor to borrow money on its credit. Paige v. Stone et al., supra; Bank of Lnd. v. Bugbee, 3 Keyes, (N. Y.) 461.</p>

Book account. The case is sufficiently stated in the opinion. The court, at the August term, 1872, Royce, J., presiding, rendered judgment on the report for the plaintiff, pro forma, for the sum of $363.57 ; to which the defendant excepted. This is an action of book account, brought to settle and adjust matters of deal and account growing out of the taking and carryiug on of the plaintiff’s farm and stock upon shares.

<p>Case for criminal conversation with the plaintiff’s wife. Plea, the general issue, and trial by jury, June term, 1868, Pierpoint, Ch. J., presiding.</p> <p>The writ was dated February 18th, 1867. The testimony on the part oí the plaintiff tended to show, that during most of the years 1865 and 1866, the families of the plaintiff and defendant were on intimate terms, and that the defendant, sometimes with his family and sometimes alone, frequently called and visited at the plaintiff’s house; that the defendant had illicit intercourse with the plaintiff’s wife at three different times in the summer and fall of 1866; that the plaintiff and his wife had been married about twelve years, and that she had borne no children until the 13th of February, 1867, when she was delivered of a child. The testimony on both sides tended to show that the plaintiff’s wife remained at the plaintiff’s house about three months after the birth of said child, when, having recovered sufficiently to travel, she went to Massachusetts to reside with her father, where she had ever since remained. The defendant introduced evidence tending to show that there had been no illicit intercourse, or other improper conduct, between him and the plaintiff’s wife. The defendant, among other things, offered the testimony of several witnesses, to show that the plaintiff, on the 16th of April, 1867, and while his wife still remained at his house as aforesaid, went with one Martha Church to St. Johns, in the Province of Quebec, and there had illicit intercourse with her. To the admission of this testimony the plaintiff objected, and the court excluded it; to which the defendant excepted. ■ It appeared that whatever intercourse existed between the defendant and the plaintiff’s wife, terminated in November, 1866, and had become known to the plaintiff before the alleged transaction at St. Johns; and no evidence was offered to show adultery by the plaintiff on any previous occasion. The defendant introduced the depositions of the father and mother of the plaintiff’s wife, tending- to show cohabitation between the plaintiff and his wife after their separation as aforesaid.</p> <p>The testimony offered to show that the plaintiff took a woman to St. Johns, in April 1867, and there had illicit intercourse with her, was clearly admissible in mitigation of damages. 1 Phil. Ev. (4th Am. ed.) 181, note ; Smith v. Mastin, 15 Wend. 270 ; Oalcraft v. Harborough, 4 0. & P. 499; Sedgw. Dam. 120 ; Hilliard Rem. Torts, 398; Foley v. Peterborough, 4 Doug. 294; Bromley v. Wallace, 4 Esp. 237 ; Traverse v. Borger, 24 Barb. 614; 1 Selw. N. P. 24; Bullor N. P. 296 ; Hodges v. Windham, Peake’s Cases, 89; Elsam v. Faucett, 2 Esp. 562 ; 4 N. H. 501; Foot v. Tracy, 1 Johns. 46.</p> <p>Evidence to prove adultery by the plaintiff, after the intercourse between his wife and the defendant had terminated and been discovered, was properly rejected. The purpose for which such evidence is admitted, is to reduce -the damages, by showing that the proper relations between the plaintiff and his wife, were impaired before the seduction took place. After that has occurred, and the cause of action is complete, it can not be taken away by subsequent misconduct of the plaintiff. It is among the natural and worst results of the defendant’s offence, that men of previous good conduct are thus driven into bad courses. And to allow evidence of that sort to bo given, is simply to permit the defendant to set up the consequences of his own wrong as a defence against liability for it. 2 Stark Ev. 443 ; 2 Greenl. Ev. § 56.</p>

<p> Execution. Close Jail Certificate. </p> <p>In an action on the case, the court denied the defendant’s motion for a continuance, and rendered judgment for the plaintiff; and, on the plaintiffs motion, without the introduction of any testimony, and against the defendant’s objection, adjudged that the cause of action arose from the wilful and malicious act of the defendant, and granted a certified execution. Held, error.</p>

Plea, that the pauper was unduly removed, and trial by the court, September term, 1873, Wheeler, J.,.presiding.

Assumpsit. The case was referred, and the referee reported the following facts: “ Early in May, 1872, the plaintiff and one William Kent had negotiations with the defendant in reference to building a house for the defendant, the defendant to furnish the lumber and all materials ; and in furtherance of such negotiations, the plaintiff and Kent went to Mt. Holly to the defendant’s residence, to look over the lot on which the house was to stand, and the lumber of which it was…

Trustee process. The commissioner found and reported substantially the following facts: The defendant mortgaged his farm and land in Shorebam, Vt., to one John L. Hammond, to secure the indebtedness of the defendant to said Hammond, and subsequently the defendant and. bis wife conveyed all said lands to said Hammond by warranty deed, which was absolute in form, but was subsequently claimed by the defendant to be mere security for the defendant’s debt to Hammond, and Hammond…

The bill alleged, “ That on the second day of April, 1860, and for a long time prior thereto, one Joseph Adams and Ira C. Allen were the owners in fee of a certain water-power and premises therewith connected, on Castleton River, in the village' of Fairhaven, and had a mill-dam erected across said river, creating a pond from which water was drawn to propel the wheels and machinery in a certain marble-mill situate upon the north side of said mill-dam, then owned and operated…

Petition for a highway to be laid out, “ Extending from a point on the creek road in the town of Wallingford, near the dwelling-house of Joel Croft and William Croft, and running through the lands, &c., in a south-westerly direction, and then in a line in the same direction, running near the dwelling-house of, &c., in said Wallingford, and thence on in the same direction, through the lands, &c., and lands, The petition did not allege that application in the premises had been…

General assumpsit. Plea, tbe general issue, and trial by the court, March term, 1873, Wheeler, J., presiding. In 1867, the plaintiffs, who resided in Castleton, commenced sending flour to the defendant,' who resided at Ascutneyville, in Windsor, to sell for them on commission, and to receive the avails thereof for them; and they also sent him flour which they sold him on credit.

Ejectment in the statute form, for lands in Wallingford. Plea, the general issue, and trial by jury, March term, 1873, Wheeler, J., presiding. The ouster was laid on the 1st day of June, 1871. The plaintiff introduced a copy of a deed from Oliver Warner to Jesse Lapham, dated March 31, 1838, which, it was conceded, covered the land in controversy. That deed purported to convey two separate parcels of land.

Case, for the diversion of water from the plaintiffs’ paper-mill. Plea, the general issue, and trial by jury, September term, 1873, Wheeler, J., presiding.

Assumpsit for two yoke of oxen sold and delivered. Plea, the general issue, and trial by jury, September term, 1873, Wheeler, J., presiding. The plaintiffs’ evidence tended to show that their agent, William Kimball, sold the oxen to the defendant. The defendant’s evidence tended to show that he bought the oxen as the agent of and for his son, Charles Billings, and that said Kimball so understood it at the time.

The bill was preferred on the 10th of May, 1870, and the temporary injunction therein prayed for, granted on the 12th, and the bill served on the 21st, of said May. Held: the judge says that in proceedings before commissioners, “ the same course of proceeding provided by statute in actions on probate bonds, cannot, of course, be followed ;” but that'presents no difficulty in pursuing the remedy before commissioners.

Assumpsit. Plea, the general issue, with notice of payment. Trial by the court, September term, 1878, Wheeler, J., presiding. The declaration contained two special counts and the general counts.

Indictment for the illegal sale of intoxicating liquor in the town of Fairhaven.

An auditor was appointed, who reported as follows: “The plaintiff’s account consisted of a single item for services in tbe family of the intestate during his lifetime, and down to the time of Ms decease, which event occurred suddenly and by accident, April 1st, 1870. The plaintiff presented no book, and during tbe time the services were rendered, kept no account with the intestate, either of debt or-credit.

<p> Highway. </p> <p>It is the duty of towns to provide for the safety of travelers in passing teams going in the same direction, and to construct and keep their highways, at places which naturally invite the attempt to pass, reasonably safe for that purpose. And such duty is not limited to cases of absolute necessity on the part of the traveler 5 but in this case it was extended to one who attempted to pass a team for the purpose of keeping in company with a companion who had'driven ahead.</p>

Trespass in two counts, with counts in case for the same cause of action. The first count was for running a carriage against the plaintiff’s carriage, whereby the plaintiff was thrown out and injured, and his carriage damaged ; and the second count was for injury thereby caused to the plaintiff’s wife, whereby he lost her society, &c. Plea, the general issue, and trial by jury, December term, 1878, Wheeler, J., presiding.

Trespass qua. clau. The case was referred, and the referee found the following facts: “ The locus in quo is a lot of wood and timber land. In 1886, said lot was conveyed by David ■ Robinson to A. Knights, Philo Buck, and M. Judson, by deed of warranty. The proof of this deed was by parol, it appearing that the deed was lost, and never recorded.

This was an action brought upon § 29, ch. 100, of the Gen. Sts., to recover the penalty thereby imposed for suffering neat cattle, &c., to run at large in the public highway. Plea, not guilty, and trial by jury, Wheeler, J., presiding.

General assumpsit. The case was referred, and the referee reported the following facts : “ The plaintiff’s claim was for money paid in supporting one Asa Whitney, who broke his leg in Stamford, in the fall of 1868, and being without means of support, applied to the authorities of Stamford, who paid for his board, nursing, and doctor bill, from the time of the injury until he became able to labor in the spring of 1869, the sum of $131.50. “ The said Whitney was born in…

<p>Exceptions. Practice. Partnership.. Certified Execution under § 24, ch. 121, of the Gfen. Sts.</p> <p>When the facts are spread upon the record by the findings of tho county court or the report of an auditor or referee, it is a question of law whether such facts entitle the plaintiff to a certificate under § 24, ch. 121, of the Gen. Sts., that the cause of action arose from the wilful and malicious act or neglect of the defendant; and the decision of the county court thereon, may be revised by the supreme court on exceptions.</p> <p>The supreme court will not a-sume that the county court acted in such cases upon facts not appearing upon the record.</p> <p>The plaintiff and defendant entered into an agreement, whereby the plaintiff was to buy and furnish to the defendant certain articles of merchandize from time to time, which the defendant was to sell for cash, or on short credit, to persons of undoubted responsibility; and they were to share equally in the profits of the sales, and as the goods were sold and money collected, it was to be paid to the parties of whom the plaintiff purchased the goods. Held, a partnership, and that the plaintiff, in an aciion of account to settle said partnership dealings, in which he recovered judgment, was not entitled to a certified execution.</p>

<p>Petition for a writ of certiorari. The petition alleged that the defendant preferred his complaint to the June term, 1872, of the county court, against the petitioner and one Henry ’S. Walbridge, wherein he complained,</p> <p>“That Stebbins D. Walbridge, of said Bennington, and having his legal settlement in said Bennington, is poor and unable to support himself by reason of age and infirmity, and would long since have been, and would still be, chargeable to the town of Bennington for his support, had not the said James H. Walbridge, complainant, supported, and did he not still support, him the said Stebbins D. Walbridge ; and that Edward Walbridge and Henry S. Walbridge, both of Bennington aforesaid, and the said James H. Walbridge, complainiant, are the sons by consanguinity of the said Stebbins D. Walbridge, and arc of sufficient ability to support the said Stebbins D. Walbridge, and the said Edward Walbridge and Henry S. Waldbridge are each of sufficient ability to bear a proportion of the expense of his support.</p> <p>“And the said James H. Walbridge further complains, that he has been required to pay for the support of the said Stebbins D. Walbridge, during the six months now last past, as necessary expense for his support, and has paid, a large sum of money, to wit, one hundred and fifty dollars, and the said Edward Walbridge, and Henry S. Walbridge, though requested, neglect and refuse to pay their respective proportions of said expense so incurred, and refuse to pay the said respective proportions of future necessary expenses for his support. Wherefore the said James H. Walbridge prays the court to assess, on due ^hearing, and apportion upon said sons, to wit, Edward Walbridge and Henry S. Walbridge, in proportion to their ability respectively, such part of said expenses already incurred, and that may be incurred to the time of the assessment, as the said court shall judge reasonable ; and further, that said' court may further assess and apportion upon said three sons, such weekly sums as the said court shall judge sufficient for the future support of the said Stebbins D. Walbridge, subsequent to the time of said first mentioned assessment, to be paid quarter yearly, till the further order of sain court, according to the statute in such case made and provided.”</p> <p>The petition further alleged, that the petitioner filed a motion at said term to dismiss said complaint, for that it was not alleged therein that the said Stebbins D. Walbridge had become or was chargeable to the town of Bennington, or to any other town; that the court overruled said motion, and continued the case to the December term, 1872, of said court, to which the petitioner excepted ; that at said last mentioned term, the petitioner filed a general demurrer to said complaint, which the court overruled, and adjudged the complaint sufficient, to which the petitioner excepted; that thereupon such proceedings were had, that the court found and placed upon the record the following facts, and made the following adjudication:</p> <p>“ Stebbins D. Walbridge, father of the parties, had, before the 20th of November, 1871, become poor and chargeable to the town of Bennington, and James H. Walbridge had assumed his support, and prevented him from becoming a charge to that town, and he has remained so poor and chargeable ever since, and been supported by the said James, assisted somewhat in that behalf by Henry S. Walbridge. No application for aid in his or their behalf to any town, was shown; and the said Stebbins has never been a charge to, or supported at all by, said town, but he is likely to continue so chargeable. Each of the parties has since that day been of süfficient ability to contribute to his support, and Henry S. Walbridge has contributed as much in that behalf as is judged reasonable, and Edward Walbridge has not contributed anything in that behalf; and support to the amount of sixty-five dollars would have been a reasonable contribution for him to have made for that purpose. It is proper that he should continue to live with James H. Walbridge, and reasonable that Edward Walbridge should contribute the weekly sum of one dollar and twenty-five cents, and Henry S. Walbridge the weekly sum of twenty-five cents, for his support; and the costs of this proceeding having been occasioned by the default and separate defence of Edward Walbridge, he is assessed in the sum of sixty-five dollars for the support of the said Stebbins, from said 20th day of November, hitherto, and the weekly sum of one dollar and twenty-five cents, and said Henry is assessed in the weekly sum of twenty-five cents, to be paid quarterly for the future support of the said Stebbins, and judgment for the petitioner is entered accordingly, and for his costs against Edward Walbridge ”; to which decision the petitioner excepted; and exceptions were allowed,proforma.</p> <p>The motion to dismiss and the demurrer stand upon the same ground. The county court erred, both in denying the motion, and overruliug the demurrer. There is no allegation in the complaint that Stebbins D. Walbridge had “ become chargeable to any town.” The averment is, “poor and unable to support himself by reason of age and infirmity, and would long since have been, and would still be, chargeable to the town of Bennington for his support,” had not the complainant supported him, &c. _ To confer jurisdiction upon the court, it must appear that the poor person is chargeable to some town in this state as a pauper. There is no common law obligation upon a child to support an infirm or indigent parent. The legal obligation so to do, is purely statutory. The purpose of the statute is not to enforce a moral duty, but, in the language of Chancellor Kent, “This feeble and scanty statute provision, was intended for the indemnity of the public against the maintenance of paupers.” 2 Kent Com. 191; Reeve Dom. Rel. 285 ; Edwards v. Earns, 16 Johns. 281; Weathersfield v. Montagtce, 3 Conn. 507. The first statute provision ever enacted upon this subject in England, is the statute 43 Eliz. c. 2, which enacts: “The father and grandfather, mother and grandmother, and children of every poor, old, blind, lame, and impotent or other poor person not able to work, being of sufficient ability, shall, at their own charges, relieve and maintain every such poor person, in that manner and according to that rate, as by the justices of that county where such sufficient persons dwell, in their sessions, shall be assessed, on pain of'20 shillings a month.” 3 Burn’s Just. 429. A further statute providing for the case of absconding parents and husbands, was passed in the 5 Geo. I. c. 8, s. 3— Burn’s Just. 433, 434. The statute of 43 Eliz was, in substance, re-etiacted in Vermont in 1797. Slade’s Sts., ch. 47, § 9. The material part of this section, for our present purpose, is — “not able to support and maintain him or herself, and becoming chargeable to any town or place in this state.” Not a case can be found in England where the statutes above cited, have ever been used for any other purpose than the relief of the parish to which the poor person is chargeable. Parish of St. Andreios v. Mendex, 1 Ld. Raym. 699 ; 3 Burn’s Just. 433 ; 1 Bl. Com. 448 ; Cooper v. Martin, 4 East 76 ; Stable v. Eixon, 6 East, 163 ; Our present statute provisions first appear in their present form in the revision of 1840. The idea of indemnity to the town, is quite as prominent as in the act of 1797. The obvious meaning of the phrase, “any poor person who shall become chargeable to any town,” is, actually chargeable to, and supported by, a town as a pauper. So too, the word pauper, as used in § 20 of our statute, has had a well understood legal signification for more than 200 years. Its literal meaning is, a poor person. Its legal meaning is, a poor person who is a burden and charge upon a parish or town ; Jacob-Law Diet. 193 ; Bóuv. Law Diet. 320 ; Hardwick v. Pawlet, 36 Yt. 323.</p> <p>If the court below had decided that this poor man was “likely to become chargeable,” such a decision would not be error. But the court overlooked the distinction, which is well defined, between the cases where the poor person is “actually chargeable,” and'“likely to become chargeable.” The cases which have arisen under the 4th section of chapter 20, illustrate the distinction. Corinth v. Bradford, 2 Aik, 120 ; Londonderry v. Acton, 3 Yt. 122; Ludloiov. Weathersfield, 18 Yt. 39; Chelsea v. Brookfield, 27 Yt. 587 ; Hover v. McMurphy, 4 N. H., 158.</p> <p>We have been unable to find anything in the Yermont cases upon this subject, to support the idea that the instrumentalities afforded by the statute, can be used until the poor person actually becomes chargeable as a pauper. Until that happens, the law leaves this duty to the promptings of parental and filial affection. Bloomfield v. French, 17 Yt. 79; Berlin v. Morristown, 20 Yt. 574; Woodstock v. Hartland, 21 Yt. 563 ; BrcMleboro v. Stratton, 24 Yt. 306. Nor can the decision of the county court be sustained upon the ground that the statute has imposed a duty upon these sons, and one having discharged it, a right to be reimbursed exists in^his favor against the others It is not true that he has discharged a statute duty. He has simply discharged a moral duty due from a child to his parent. The statute creates no duty, until the parent has “ become chargeable as a pauper.”</p> <p>There is a class of cases where the attempt has been made to charge kindred liable to support paupers, in assumpsit for supplies furnished, upon the ground of this statutory duty or liability, as it is termed. Some of the cases had also the element of an express promise to pay, after the supplies were furnished. The express promise was uniformly held void for want of consideration, and the statute liability held of no avail, because the supplies were furnished to persons who were not, in a legal sense, paupers. Fdwards v. Havis, supra; Cook v. Bradley, 7 Conn. 57 ; Lebanon v. Griffin, 45 N. H. 588 ; Mills v. Wyman, 3 Pick. 207 ;. Loomis v. Newhall, 15 Pick. 159. There is another class of cases where attempts have been made by towns, to recover of the person himself, when afterwards he became of sufficient ability, for support furnished when chargeable as a pauper. These actions have uniformly failed. Selectmen of Bennington v. McGennes, 1 D. Chip. 41; Charlestown v. Hubbard, 9 N. H. 195.</p> <p>The defendant’s counsel will probably rely upon the authority of a passage in Reeve Dom. Rel. 286, and the case of Hutchins v. Thompson, 10 Cush. 238. Reeve, in discoursing upon this subject, says : “So too where one child among several, supports his pauper parents, without application to the court for an assessment, he may maintain an action against each of his brothers or sisters who refuse to bear their portion of the support.” What he thus says, is evidently his view of a construction of which the Connecticut statute is susceptible. He cites no authority, and none exists in that state. So far as we have examined, the Connecticut cases are in harmony with what wc claim is the law of this case. In Weathersfield v. Montague, supra, Ch. J. Hosmbr, says: “ A child is under no'common law liability to support his parent. Undoubtedly, ho is under a moral obligation to do it; but it is a duty of imperfect obligation. And the legal right to demand maintenance from a child by a parent, as well as the legal remedy to enforce it, depends exclusively on the statute.” Newton v. Banbury, 3 Conn. 553 ;■ Cook v. Bradley, 7 Conn. 57 ; Stone v. Stone, 32 Conn. 142 The provisions of the Connecticut statute are materially different from ours. There is nothing in the language of'their statute, which implies that a poor person must be actually chargeable to a town as a pauper, before the court can take jurisdiction to compel contribution. Hutchins v. Thompson would be an authority against us, if our statute was like that of Massachusetts. Their statute applies to the “kindred of poor persons” generally; ours, to “the kindred of any poor person who shall become chargeable to any town.”</p> <p>This being a sessions proceeding, the proper remedy to correct the errors of the court below, is, by writ of certiorari or mandamus. Rockingham and Grafton v. Westminster, 24 Yt. 288; Rand et ais. v. Townsend, 26 Yt. 670 ; Woodstock v. Gallup, 28 Yt. 587; Hutchinson et al. v. Chester, 33 Yt. 410 ; Pomfret y. Hartford, 42 Yt. 134 ; Tyler v. Beacher et al. 44 Yt. 648.</p> <p>The writ prayed for is not granted of course, even where there has been some error. The writ is issued only where substantial wrong or injustice has -been done to the petitioner in the court below. Royalton v. Fox et al. 5 Yt. 458 ; Myers et al. v. Potoñal, 16 Yt. 415 ; West River Bridge Co. v. Bix et al. 16 Yt. 446 ; Paine v. Leicester, 22 Yt. 44; Pomfret v. Hartford, 42 Yt. 134.</p> <p>The overruling of the motion to dismiss, and the final decision and the order thereon, weré correct, and worked no wrong or injustice to the petitioner. The facts stated in the complaint, that the father was poor and unable to.support himself by reason of age and infirmity, and would have been chargeable, &c., had not the defendant supported, and did he not still support him, were sufficient, if proved, to create an obligation on the petitioner to contribute, if of sufficient ability. These facts, substantially, were found by the county court, and that the petitioner was of sufficient ability.</p> <p>The construction given by that court to § 19, ch. 20, Gen. Sts., is correct. The ordinary meaning of the word chargeable, when applied to the burden or imposition, is, may be charged. Such is its meaning in. that section. It is conceded that the word as used in § 4, ch. 20, has a more technical meaning, and is equivalent to charged, or a charge. But it is used in its ordinary sense in other sections in this chapter, as in § 26, and probably in §§ 29 and 43. The statute is designed to place the burden of support upon the kindred if of sufficient ability. If the town is compelled to render aid, it is to be indemnified, and the statute gives the remedy. If, instead of the town, one of the kindred gives the support, the others, if of sufficient ability, must contribute, and the same statute gives him his remedy. The word pauper, used in § 19, does not indicate that the word chargeable is used in the technical sense. It is not itself su used. Hutchins v. Thompson, Id Cush. 238.</p>

<p>Petition for mandamus. The case is fully stated in tbe opinion.</p> <p>The joint resolution authorizes by necessary implication, the committee to employ a clerk and stenographer. The direction to “investigate fully all and singular the matters above referred to,” the power “ to send for persons and papers and to employ counsel to prosecute the investigation to its fullest extent,” necessarily confers the power to make use of the usual means and methods to carry out the pu'rpose of their appointment. I do not deem the question at all important, whether the committee had power to employ the defendant at the expense of the state. It is none of his business, and it does not lie in his mouth to make the objection. The committee did employ him, he accepted the employment, and agreed to discharge its duties, and entered upon the work. Without que-.tion or objection, he took all the‘testimony as their clerk, their servant, their stenographer. This testimony when taken belonged to the committee. It was a part of their work as public servants. This court has power to compel the committee to dischai'ge their duty, and it has a like power over the defendant.</p> <p>The writ of mandamus is a high prerogative writ of a most extensively remedial nature, and “ issues in all cases where the party hath a right to have anything done, and hath no other specific means of compelling its performance.” Though often addressed to inferior courts, it is by no means confined to judicial matters. Any person, corporation, or court which neglects any legal duty, may by this writ, be compelled to do it. 8 Bl. Com. 110 ; 1 Chit. Pr. 789-804; Kendall v. United States, 12 Pet. 524, 613 ; Richards et al. v. Wheeler, 2 Aik. 369 ; In re White River Rank, 23 Vt. 478; Walter v. Belding et al. 24 Yt. 658 ; Kidder v. Morse, 26 Yt. 74.; Woodstock v Gallup, 28 Yt. 587; Orange v. Bill et al. 29 Yt. 442 ; Kail v. Selectmen, 39 N. H. 517 ; People v. Brooklyn, 1 Wend. 318 ; Marbury v. Madison, 1 Pet. Cond. 278. This court ha& all the power of the court of King’s Bench of England, and may issue this writ whenever it appears to be necessary “ to the furtherance of justice and the regular execution of the laws.” Gen. Sts. ch. 30, § 11.</p> <p>The duties devolving upon the relators as a committee acting under the authority of the general assembly, are of a public character, and in the faithful discharge of those duties, the public have an interest. The subject-matter of that investigation concerns the highest interests of every citizen. People v. T/iroop, 12 Wend. 183 ; 12 Pet. 542 ; Marburyv. Madison, supra ; laylor v. Henry, 2 Pick. 397.</p>

<p>Appeal from the court of chancery. The bill alleged that the West River Railroad Company, a corporation created by an act of the legislature of the state of Vermont, was, by its charter and an amendmentthereto, authorized to construct a railroad from Jamaica, in the county of Windham, through the valley of West River, to Brattleboro, in said county, and thence through so much of the towns of Brattleboro and Vernon as should be necessary to reach Massachusetts line, in said Vernon, or in connection with building its whole line, to consolidate with any other railroad or railroad company, so as to form a continuous line of railroad from said Jamaica to Massachusetts linethat said railroad company had duly organized under its charter, and surveyed and located its railroad on the route aforesaid, and designed to form a continuous lino of road from said Jamaica to Massachusetts line, by connecting with the Western New Hampshire Railroad, through the west part of Hinsdale, in the state of New Hampshire ; that in October, 1869, said West River Railroad Company applied to two of the judges of the supreme court of this state, to appoint commissioners to appraise damages to lands taken by said company in Vernon, for the construction of said railroad, and that said judges appointed Asa Keyes, George Newman, and Addison Whithed, commissioners for that purpose ; that'said railroad so surveyed and located from the Connecticut River, southward, through said Vernon to Massachusetts line, extended through lands of Frederick Brown, and that said commissioners, upon hearing, appraised and awarded as damages to said Brown for his lands so taken, the sum of eleven hundred dollars, which said sum said company, on the 5th day of December, 1870, pursuant to the statute in such case made and provided, duly deposited with the orator, and the orator made and delivered to said Brown a certificate of deposit therefor ; whereupon said company' entered upon said lands of said Brown, and upon other lands in said Vernon on which said road had been surveyed and located, and by its contractors, servants, and agents, began to build, grade, and construct its said railroad; that while said work was in progress, and when but a small portion of the lands of said Brown so appraised, had been disturbed or occupied by said company, said company and its servants, agents, and contractors, were enjoined by the injunctions of the court of chancery, in said county, upon the bills of complaint of the Vermont & Massachusetts Railroad Company and the Rutland Railroad Company, and of Lorenzo Brown, Mary 0. Brown, and Hiram Doolittle, from the further prosecution of said work upon said road, and that since the service of said injunctions on the 14th day of November, 1870, the lands of said Brown had not been occupied or disturbed by said company ; that after the service of said injunctions, said West River Railroad Company ordered the orator to withhold from said Brown the payment of said deposit, and assigned as a reason therefor, that said company, by reason of said injunctions, had entered upon and taken but a small portion of the lands for which said damages had been awarded him, and that the actual damage to his lands was not more than three hundred dollars, and that said company was not liable to pay him the full amount so awarded him ; that said Brown subsequently demanded of the orator the entire amount of said deposit, and upon the orator’s refusal to pay him the same, he brought his action at law against the orator, returnable at the April term, 1871, of Wind-ham county court, to recover the samo; that the orator was a mere stakeholder of said funds, having no interest whatever in said controversy; that said company on one hand, forbid the orator from paying said deposit to said Brown, and on the other hand, said Brown demanded the same, and had brought his suit against the orator therefor, and that the orator was unable to determine to which party said funds justly belong, and that the orator, was. ready and willing to pay the same to whichever party was entitled thereto ; and insisted that said company and said Brown ought to interplead, and settle their respective rights to said funds, and be restrained from proceeding at law against the orator.</p> <p>Prayer,-that said West River Railroad Company and said Brown interplead, and settle their rights to said funds under the direction of the court, the orator being ready and willing to pay the same to whom it shall of right belong, and offering to bring the same into court for whichever party shall be entitled thereto, and that said parties be restrained by injunction from prosecuting any actions at law against the orator, until their respective rights to said funds, be determined by decree of court.</p> <p>The defendant .Brown demurred to the bill for want of equity, and because it appeared thereby that he was legally and equitably entitled to said fund, and did not appear thereby that the orator was a mere stakeholder of the fund, nor that it could not be otherwise protected from unjust litigation in the premises, nor that all the rights and liabilities of the parties could not be settled in the suit brought by the said defendant against the orator as aforesaid.</p> <p>The court, at the September term, 1873, Barrett, Chancellor, overruled the demurrer, and sustained the bill, and decreed that said fund, with interest thereon from the 5th day of December, 1870, belonged to, and was the property of, the said Brown, and that the West River Railroad Company had no right or interest therein, and that the orator pay the same, with interest, to the said Brown, within thirty days from the date of the decree, together with the costs of said suit at law up to the time of filing-said bill, — all costs since filing said bill, to be paid by said railroad company. It was stipulated that the decree might be so amended as to show that said railroad company appeared by solicitor, but did not answer or demur to the bill, but confessed the allegations thereof, provided the orator should, on the first day of the then next term of the supreme court in said county, bring said fund into court, with six per cent, interest thereon from the time of said demand, and deposit the same with the clerk of said court, for th.e benefit of whichever defendant said court should decide was entitled thereto, and that upon failure so to deposit said fund, said decree should be affirmed without hearing ; and the decree was signed subject to said stipulation. Appeal by the orator and the West River Railroad Company.</p> <p>Said railroad company filed a motion in this court, alleging that by misunderstanding and mistake, it had had no opportunity to answer the bill, or to be heard in the court of chancery, and asking to have said decree reversed, pro forma, and the cause remanded to the court of chancery, that said company might be permitted to make answer to the bill, and to set up therein its claim to said fund, and the facts in support thereof, and to prove such facts if denied, and to interplead with said Brown in respect to said fund. Said - motion was accompanied by the affidavit of the company’s solicitor, setting forth the circumstances of such misunderstanding and mistake, and the facts as claimed by the company in relation to the main case.</p> <p>The decree of the chancellor on the demurrer of the defendant Brown, and before an answer by the railroad company or opportunity therefor, disposing of the fund in question as between the defendants, was entirely irregular and erroneous. No such decree was authorized by the record. Either the bill should have been dismissed, or the parties ordered to interplead. 3 Dan. Ch. Pr. 1765; Story Eq. PI. §297. And if an interpleader was allowed, the rules of the court entitled the railroad -company to forty days after the term to answer, and then to take proofs in support of the answer if traversed.</p> <p>If there can be any doubt on this point, then the decree should, upon some terms, be reversed, pro forma, and an opportunity given this defendant to answer and be heard ; inasmuch as the decree was a surprise upon the company, and arose from an actual misunderstanding and mistake on the part of its solicitor, without negligence or default on his or its part, and results in great injustice. Had this defendant demurred to the bill, and, the demurrer being overruled, appealed to this court, and the decree been affirmed, a pro forma reversal, with leave to answer, would still be allowed, if the demurrer had been filed in good faith.</p> <p>Upon, the facts stated in the bill and in the affidavit accompanying the motion, the defendant Brown is not entitled to the fund in question, and only to his actual damages. These damages may be ascertained by reference in this suit, or recovered at law.</p> <p>The bill shows no colorable right to the 11,100, in avor of the West River Railroad Company. The orator is not a stakeholder. The facts alleged in the bill show that Brown has a vested right and indefeasible title to this deposit, and that the orator is acting-in its own wrong,- in withholding from him his money. His right to that money became absolute against the railroad company when it surveyed and located its railroad upon his lands, and proceeded, under the statute, to have those lands sequestered to its use by procuring an appraisal by commissioners, and depositing their award in the defendant’s bank to Brown’s credit. His right became absolute against the bank when the cashier issued to him a certificate of deposit, and he signified his acceptance of the award by demanding payment, or suffering ninety days to elapse without appeal. Gen. Sts. ch. 28, §17. By the proceedings detailed in the bill, ending with the deposit of $1,100 to Brown’s credit, the West River Railroad Company, in the language of the statute, “ shall be deemed to be seised and possessed of all such land or other property as shall have been appraised by said commissioners.” It thereby acquired a vested right to an easement in the land for railroad purposes. It had obtained from the legislature the power to exercise the right of eminent domain upon Brown’s property. This right carried with it the correlative right of the land-owner to compensation. Whenever the right to enter upon Brown’s land, to grade and construct a-railroad upon it, becomes vested in the company, that moment he acquired a vested right to the compensation awarded and deposited as required by law. When thus vested, no act of the. company by changing the location of its railway, or by wholly abandoning the land, could divest him of what, under the constitution and laws, was the equivalent of the land. These axioms of the law are uncontradicted by any case yet decided, or. book yet written, and distinctly recognized and acted upon in the following cases : Stacey v. Vt. Central R. R. Co., 27 Ft. 39; Hampton v. Coffin, 4 N. H. 517 ; Westbrook v. North, 2 Greenl. 179 ; Hawkins v. Rochester, 1 Wend. 53; Baltimore Susquehanna R, R. Co. v. Nesbit, 10 Howard, 395 ; Harrington v. Berkshire, 22 Pick. 267. Prior to the enactment of the statute, ch. 24, §§82, 83, a case arose in this county, which has never been reported. A highway was laid out and established in Townshend, damages awarded, and the road subsequently discontinued. The land-owner sued for his damages, and Townshend brought a bill in chancery to restrain the collection of the award. This court dismissed the bill. The principle is precisely the same in case of a railroad as a highway. Courser v. Vt. Central R. R. 25 Vt. 476.</p> <p>The phrase, “Seised and possessed of all such land,” &c., as used in this statute, means, seised of such an estate or easement in the land as is necessary for the purpose of a railroad. This form of expression, says Judge Rediteld, “Seems to have been adopted by design, and with a view to limit the estate of the company strictly to their necessity.” Quimby v. Vt. Central R. R. 23 Yt. 387 ; Hatehv. Vt. Central R. R. 25 Yt. 49 Stacey v. Vt. Central R. R. supra ; McAulay v. Western Vt. R. R. 33 Yt. 311. We have thus far considered the case in the most favorable aspect possible for the orator and our co-defendant. But this case is far stronger in its elements for defendant Brown than those cited above. The court will look in vain in the orator’s bill, for any allegation that the West River Railroad Company have abandoned the right which they obtained under the statute, to construct a railroad upon his land. All that is shown in this respect, is, that other parties have obtained a temporary injunction which has resulted in a suspension of work. Again, it appears on the face of the bill, that Brown has been damaged to the amount $300. The bill shows no offer of compensation, and points out no way for the defendant to obtain it, unless entitled to this award.</p> <p>Just what disposition should be made of this bill, I am not certain. A bill of interpleader will not be sustained where it appears from the bill itself, that one of the defendants is clearly entitled to the fund to the exclusion of the other. 3 Dan. Ch. Pr. 1758 ; M. S. R. R. Co. v. Clute, 4 Paige, 484. The orator, if it has any defence to Brown’s suit, could make that defence at law as well as in equity. It could protect itself against any claim of the railroad company, by vouching it in to defend Brown’s suit to recover the deposit. “ Bills of interpleader should not be encouraged, nor should they be filed, except in a case where the plaintiff can in no other way protect himself from an unjust litigation in which he has no interest.” 3 Dan. Ch. Pr. 1754; Bedell v. Hoffman, 2 Paige, 199; Badeau v. Rogers, 2 Paige, 209. Again, it is not quite clear that this case is rightfully here. The West River Railroad Company has neither answered nor demurred. It has done what is equivalent to permitting the bill to be taken as confessed. It has no such status on the record, as entitled it to an appeal from the decree of the chancellor. Who then brings the case here ? The orator cannot, for he has accomplished his purpose when the 'chancellor has ordered the defendants to inter-plead, and having interpleaded, decreed that the orator should pay the fund to Brown, and the railroad company pay the costs. I think this is the first case where a “mere stakeholder” has attempted to litigate through an interpleader, with one of the claimants of the fund.</p> <p>A demurrer is the proper method for the defendant Brown to assert his right, and show that his co-defendant has none; the whole case appears upon the face of the bill. 3 Dan. Ch. Pr. 1764.</p>

<p>[In Chancery.]</p> <p> Construction of Reservation of Water. Sixteenth Rule in Chancery. </p> <p>W. owned two pieces of land. On one (the defendant’s premises) there was a well, or spring, whence water was taken in lead pipe to a barn on the other (W’a homestead); thence it was taken to a house on another piece (the orator’s premises) which W. had recently sold and conveyed to K. & H.; and thence, back to a house on the first-mentioned piece. A pipe branched from the main pipe on the first-mentioned piece, which conveyed a small quantity of water to a barn thereon ; but water had never been used at said barn to any great extent, and only during small portions of the year. Under these circumstances, W. sold and conveyed said first-mentioned piece, “ Reserving only the right now occupied by me, of drawing the water from the well on said land, and of digging to repair or relay water-pipes from said well, — it being mutually agreed and understood, that the water shall nev< r be i iverted f^om its present channel, but shall first pass to the barn of said W. on his homestead, and thence to the dwelling of K. & H., and thence across the road, to the dwelling on the lot above deeded, where the surplus water shall be freely suffered to run.” flWd, that W. thereby reserved the right to draw through said aqueduct, at the barn on his homestead, ail the water flowing from said well, where' he had the right to use as much of the water as he was then using and accustomed to use ; that what remained was to pass to the premises of IÍ. & H., where as much could he used as was there used and accustomed to be used •, and that the rest was to pass as surplus water, to the house on the premises then conveyed 5 and that the defendant had no right to the water until it became surplus water, by remaining after having supplied and passed the barn on W’s homestead and the premises of K. & H., as they were supplied at the date of the conveyance.</p> <p>The true construction of the 16th rule in chancery is, that each party before he commences taking the testimony on his side, shall furnish the other party a full list of the names of the witnesses whose testimony he intends to*take.</p>

Ejectment for land in the village of Brattleboro. Plea, the general issue, and trial by jury, September term, 1873, Barrett, J., presiding. The plaintiff, to maintain the issue on his part, gave in evidence a deed from Wm. Barnes to Wm. Pulsipher, dated February 3, 1827 ; copy of record of the probate of Wm.

<p>Competency of Witness under § 24, ch. 36, of the Gen. Sts. Declarations against Interest. Bona Fide Purchaser.</p> <p>In trover for property which the plaintiff purchased of B., deceased, of whom the defendant claimed to have subsequently purchased it, held, that the plaintiff was a competent witness in his own behalf, to his contract of purchase.</p> <p>The declarations of B. against his title to said property, made after it was sold to the plaintiff, and while in B’s possession, but before the purchase by the defendant, were held admissible agaiust the defendant.</p> <p>In order to constitute a bona fide purchaser, it is necessary to advance or part with money or other thing in payment. Thus, where the vendee, by agreement with the vendor, indorsed the purchase price on a note ho held against the vendor, he wasAe/d not to be a bona fide purchaser.</p>

<p>Appeal from a decree of the probate court upon the allowance of the defendant’s account as guardian of the plaintiff, a minor. The case is sufficiently stated in the opinion. The coui’t, at the September term, 1873, Barrett, J., presiding, rendered judgment on the report, proforma, allowing the items of the account as stated by the commissioner, except the items of interest, and directed that annual interest be computed by the clerk, according to §3, No. 61, of the Laws-of 1866, instead of simple interest, computed by the commissioner ; to which the defendant excepted.</p> <p>The only question presented by the exceptions is as to the mode of computing interest on the guardian’s account. The statute of 1866 was passed long after the trust was assumed, and applies only to “ notes, bills, and other similar obligations,” when there is an express contract to pay annual interest. It is to be assumed that the guardian received the estate and managed it in view of the then existing laws of the state as to interest. The law had fixed the rate at six per cent., prohibited the taking of a greater rate, and provided that if a greater rate was taken, the excess might be recovered back. Comp. Sts. ch. 76.</p> <p>Not only was this the rate fixed by the statute, but the supreme court, as early as the year 1824, made a rule that “ interest upon interest^ not allowed.” 1 Aik. 410. In Wheeloclc v. Moultons, 13 Yt. 430, the court also held that “ interest upon interest on a running account,” would not be allowed. Annual interest is only allowable when there is an express contract to pay it; and then simple interest on the sum annually falling due and unpaid, is allowable to the time of final settlement; not as interest upon interest, but because the annual interest itself becomes a debt. Gatlin v. Lyman et al. 16 Yt. 44.</p> <p>We are aware that courts of equity have, in some cases, directed the accounts of trustees and guardians to be computed at compound interest — not as legal interest, but as & punishment for a violation of an express trust, or for gross mismanagement of the funds. Hill Tr. 569, 570, 571, n. “ But such, an interposition requires extraordinary circumstances to warrant it.” Hill Tr. 820, n. This 'subject is fully considered in 2 Kent. Com. 252, and the rule stated in the text, that compound interest is to be computed only when the guardian is grossly delinquent in the management of his trust. But here there has been no violation of the trust, no mismanagement of the funds, no loss of interest by their lying idle, and there is no claim but that the defendant has managed his trust with the utmost fidelity.</p> <p>A guardian’s trust is one of obligation and duty, not of speculation and profit. He cannot reap any benefit from the use of the ward’s money, and all profit shall accrue to the ward. 1 Story Eq. Jur. 465 ; Reeve Dorn. Rel. 325 ; Perry Trusts, 389 ; Cfreen v. Winter, 1 Johns. Oh. 26. If a trustee receive trust funds and appropriate them to his.own use, or if he has unreasonably delayed to render an account, he is chargeable with compound interest upon the funds, and with more, if he has made more by the use of the money. Raphael v. Boehm, 11 Ves. 92; Sohieffelin v. Stewart, 1 Johns. Oh. 620 ; Robinson v. Robinson, 9 Eng. L. & Eq. 69 ; Jones v. Foxall, 13 Eng. L. & Eq. 140 ; Robbins v. Hayward, cited in note to Fay, Judge v. Howe, 1 Pick. 527 ; Boynton et al. v. Dyer, 18 Pick. 1; Be Peyster v. QlarJcson, 2 Wend. 78; Hapgood v. Jennison et al. 2 Vt. 294; 2 Redf. Wills, 886. The principle that a trustee must account for all profit, is not confined to the common law. The civil law recognizes the same doctrine, and holds trustees to so strict an account, that if they convert trust funds to their own purposes, they are to be charged interest “ non ex more regionis, sed gravissimas vel máximas usuras,” or double the usual rates. 1 Domat. Civil Law, Book 3, Tit. 5, § 1, pi. 1952 ; Dig. 3, 5, 38 ; Code, 5, 56.</p>

<p>Trespass for damage to the plaintiff’s carriage. Plea, the general issue, and trial by jury, September term, 1873, Barrett, J., presiding.</p> <p>The plaintiff’s evidence tended to show, that in October, 1871, his wife and her sister went to Brattleboro with his horse and covered buggy, and that while the horse and carriage were standing on the left-hand side of Main street in said Brattleboro, opposite a dress-maker’s shop, in which his wife was, her sister sitting in the carriage, the defendant drove his four-horse baggage wagon loaded with freight, along the same street, in the direction the plaintiff’s horse was headed, and while passing, ran his wagon against the near hind wheel of the plaintiff’s carriage, and damaged it. The plaintiff’s evidence further tended to show, that his horse stood in substantially the same condition that it did when his wife left the carriage, until the collision, and that there was sufficient room for the defendant to have passed upon the right-hand side of the street, without hitting*the carriage. The defendant’s evidence tended to show, that the plaintiff’s horse and carriage were farther out towai’ds the middle of the street than the plaintiff’s evidence tended to show; that the plaintiff’s horse was restless and uneasy ; that the defendant was sitting upon the seat of his wagon, with a man beside him, and saw the plaintiff’s horse and carriage before he reached them, and reined out to pass,-and would have passed "without difficulty, .had not the plaintiff’s horse suddenly backed two ‘or three feet and hit the carriage against the defendant’s wagon,[causing damage. There was no evidence to show that the defendant purposely drove his wagon so that it could come in contact with the plaintiff’s carriage. The defendant requested the court .to charge the jury, that the plaintiff could not maintain trespass, unless the jury were satisfied that the defendant purposely drove against the plaintiff’s carriage ; that both parties being rightfully in the highway, using the same for proper and legitimate purposes, the' plaintiff’s remedy would be by an action on the case ; and that the plaintiff could not recover in any form 'of action, without showing that the injury was the result of the defendant’s negligence, and not the result of accident, or of any contributory negligence on the part of the plaintiff.</p> <p>The court refused to charge as requested ; but, proforma, submitted to the jury the simple question, whether the defendant’s wagon ran against the plaintiff’s carriage, as the plaintiff’s evidence tended to show; telling them, if it did, the plaintiff was entitled to recover ; but if they found that the plaintiff’s horse backed, and thereby his carriage came in collision with the defendant’s wagon, as the defendant’s evidence tended to show, the plaintiff could not recover. The jury were unable to agree upon a verdict, whereupon the court, pro forma, directed a verdict for the plaintiff, with instructions to the jury to assess the damages, in order that the questions of law raised, might be passed upon by the supreme court. To the omission to charge as requested, to the charge as given, and to the direction of the court to return a verdict for the plaintiff, the defendant excepted.</p> <p>Upon the state of facts disclosed, tho» plaintiff and defendant were both rightfully in the highway, and the defendant at least, was using it for proper and legitimate purposes. While so using it, if he unintentionally collided with plaintiff’s carriage, the plaintiff cannot maintain trespass. His remedy is in case, founded upon the defendant’s careless or negligent driving. Washburn v. Tracy, 2 D. Chip. 128 ; Olaflin v. Wilcox, 18 Yt. 605. I am aware that there are several cases which authorize the action of trespass in cases of negligent collision, upon the ground that the injury complained of is direct, and not consequential. This is the general rule; the exception is, where the injury was unintentional, but at the same time the person causing it is responsible because of negligence. The only Vermont case where the question is made and decided, is Glaflin v. Wilcox, supra. There it was held, after a full examination of the cases, that case is the proper remedy.</p> <p>The court should have instructed the jury that the plaintiff could not recover without showing that the injury was' the result of the defendant’s negligence, and not of accident or of the plaintiff’s contributory negligence. Angelí Highways, ch. 8, 317; Sherman & Redf. Neg. 359 ; Washburn v. Tracy, supra; Vincent v. Stinehour, 7 Vt. 62; Glaflin v. Wilcox, supra ; Robinson v. Gone, 22 Vt. 213.</p> <p>It was clearly error for the court to take the case from the consideration of the jury, and direct a verdict. The material facts upon which the plaintiff’s right of recovery depended were in dispute. It was the province of the jury, and not of the court, to find the facts.</p> <p>The court told the jury that “ if the plaintiff’s horse backed, aüd thereby his carriage came in collision with the defendant’s wagon, as the defendant’s evidence tended to show', the plaintiff could not recover.” This was in substance instructing the jury that if the collision happened thus, trespass would not lie for the injury.</p> <p>Under this charge, the jury failed to agree, whereupon the court ordered a verdict for the plaintiff, pro forma, for the purpose of having this court settle the law of the case. The only question then to settle was, whether trespass vi etarmis would lie, or whether the action must have been trespass on the case. We had supposed the law to have been long since settled upon this point, both in England and in this country, and that trespass vi et armis was the appropriate remedy. The collision occurred from the force put in motion by the defendant in person, and by him voluntarily kept in motion till the collision happened; and the force was the immediate cause of the injury.</p> <p>Whether the act' was wilful or not, is immaterial. 2 G-reenl. Ev. § 224; Scott v. Shepherd, 1 Smith Lead. Cas. 649. The following cases were trespass for careless and negligent driving. Hopper £ wife v. Reeve, 7 Taunt. 698 ; Reame v. Bray, 3 East, 593 ; Boss v. Litton, 5 C. & P. 407 ; Goodwin v. Taylor, 5 C & P. 410 ; Sheldriclc v. AJbery, 1 Esp. 55 ; Chandler v. Broughton, 1 C. & M. ; Hall v. Fearnly, 3 A. & E. 919 ; McLaughlins. Pryor, 4 M. & G-. 48 ; Payne s. Smith, 4 Dana, 497 ; Burdick s. Worrall, 4 Barb. 596.</p> <p>Bay s. Edwards, 5 T. R. 648, was-trespass on the case alleging furious, negligent, and improper driving by the defendant of his cart. It was held on demurrer that the action should have been trespass, the injury being immediate. In Savinac s. Roome, 6 T. R. 125, which was an action on the case alleging that the defendant’s servant wilfully drove the defendant’s coach and horses against the plaintiff’s chaise, judgment was arrested on the ground that the action should have been trespass. Trespass lies for accident or negligence in Kentucky. Hodges s. Weltberger, 6 Mon. 337. See also, Sullivan s. Murphy, 2 Miles (Penn.) 298; Cole s. Fisher, 11 Mass. 137 ; Barnes s. Hurd, lb. 59; Gates v. Miles-, 3 Conn. 64; Loubz s. Hafner, 1 Dev. (N. 0.) 185 ; 14 Johns. 432 ; 6 Cow. 342; 3 N. H. 465 ; May s. Bliss, 22 Yt. 447; Andros s. Howard, 36 Yt. 245. The case of McLaughlin s. Pryor, supra, approves of the case of Reame s. Bray, and was decided as late as 1842. To the same effect are the cases of collision of vessels on water. Huggett s. Montgomery, 2 B. & P. 446, and notes; Covill s. Laming, 1 Camp. 497 ; Loton s. Cross, 2 Camp. 465. In Gates s. Miles, supra, it was held that case would not lie; and it made no difference whether the act complained of was wilful, or resulted from want of skill or care.</p> <p>But it is now settled, that where negligence is the cause of an immediate injury, the injured party may declare in trespass vi et armis or case, taking care that the declaration in case does not impute wilful trespass. 1 Smith Lead. Cas. 554 ; Williams s. Holland, 10 Bing. 112; Moretón v. Hardern et al. 4 B. & C. 223 ; Branscomb v. Bridges et al. 1 B. & C. 145 ; Janes v. Caldwell, 7 Yerg. (Tenn.) 38 ; Schuer v. Veeder, 7 Blackf. 342; Brennan v. Carpenter, 1 R. I. 474 ; Waterman v. Hall et al. 17 Yt. 128 ; Claflin v. Wilcox, 18 Yt. 605. The case of Waterman v. Hall, and the case cited from the 7th of Yerger, are alike. Case was sustained in this court, and trespass was held to be the appropriate remedy by the court in Tennessee.</p> <p>Upon the evidence there can be no doubt of the defendant’s •guilt. There being no plea of justification, the judgment should be affirmed. Mahew v. Boyce, 1 Stark. 423 ; Hall v. Pearnley, 3 Q. B. *919; Allen v. Parkhurst et al, 10 Yt. 557 ; Briggs v. Mason et al. 31 Yt. 433 ; Boss v. Li^on, supra.</p>

<p>Pleading. National Banking Associations. Indivisibility of Penalty. Laws of 1865, No. 6.</p> <p>In an action brought upon an act of the legislature which made it the duty of the cashiers of the several banking associations in the state, formed under a certain act of Congress, to transmit to the clerks of the several towns in this state in.which any stockholder of such association should reside, a true list of the names of such stockholders, &c., and imposed a penalty for the neglect of such duty, the declaration alleged that the defendant was cashier of such an association, and also alleged the passage of said act of the legislature, and recited that portion thereof which created said duty, and alleged a breach of such duty on the part of the defendant. Held, that the plea of not guilty did not put in issue the validity of said act of the legislature, and that if the plaintiff proved his declaration, he was entitled to a verdict, in the absence of proof of facts on the part of the defendant to obviate it.</p> <p>The fact that such an association keeps such a list of stockholders as required by the act of Congress, from which the listers of a town may, on application to such association, transcribe such stock as they deemed taxable in their town, does not absolve the cashier of such association from tho duty, or mitigate the penalty, imposed upon him as aforesaid, although the listers in fact transcribe such stock from such list, and the same is duly taxed in such town.</p> <p>Said act of the legislature, taken in connection with the state law existing in 1866 and 1867, in reference to taxing bank stock owned by persons residing in this state, does not conflict with the law of Congress so far as relates to national bank shares owned by residents of this state.</p>

<p>Jurisdiction. Foreign Insurance Companies. Gfen. Sts. eh. 87, § 5, et seq. Construction of Statutes.</p> <p>Assumpsit upon a policy of life insurance, issued to the plaintiff and her husband jointly, and payable to the survivor upon the death of either. The defendant was a foreign corporation, established under the laws of New York, and located and doing bu«iness there, and the plaintiff was a resident of Minnesota. The contract of insurance was not made, nor was it to be performed, in this state. The plaintiff’s husband died in this state ; but it did not appear that either he or the plaintiff was domiciled here at the time of his death. The writ was not served by attaching the defendant’s property, but only by leaving a copy thereof with F., of this state, “agent and attorney” of the defendant. F. did not appear in the suit; and there was nothing to show what authority he had from the defendant, only that he was described in the writ as its “general agent and attorney;” nor to show that he was ever appointed the attorney of the defendant, pursuant to the statute relative bo foreign insurance companies; nor that the defendant ever made, or was making, any contract of insurance in this state. Bald, that the county court had no jurisdiction over the cause of action, aud that, assum ng that F. was appointed attorney of the defendant pursuant to said statute, upon such service merely, the court acquired no jurisdiction of the defendant.</p> <p>Beltl, also, that said statute (§ 5 et seq. oh. 87, Gen. Sts.) was not intonded to give the courts of this state jurisdiction over causes of action that accrued out of the state, in favor of persons nob citizens of the state, against a corporation existing out of the state; but to provide a method of obtaining jurisdiction over defendants to causes of action upon contracts of insurance made in the state, accruing to the people of the state, such as the courts had jurisdiction of beforo the passage of the act.</p> <p>A statute is to be construed with reference to the old law, the mischief, and the remedy.</p>

<p> Ne Exeat. Justification under Void Process. </p> <p>The writ of ne exeat, as at present used in this country, is a mesne process, issuing from the court of chancery, to hold a party to equitable bail, that he may not depart from the jurisdiction of the court, but be personally present to answer its decree against him, and can be properly issued only in those eases where the person of the defendant can be touched by the decree, either by attachment or on execution.</p> <p>In trespass for. assault and battery and false imprisonment, held, that the defendant could not justify under a writ of ne exeat, issued upon his own petition, and upon whioh he caused the plaintiff to be arrested and imprisoned, hut whioh was void because against' a female.</p>

<p> Discontinuance. Record of Justice of Peace. Tender. Payment. </p> <p>In a suit returnable before a justice, the plaintiff died before the return day, and the case was continued five times, without any suggest'on of the plaintiff’s death upon the record. Two of said continuances were because of the inability of the justice to attend, and the others were at the request of the defendant. On the last continuance day, the administrator entered to prosecute, and it did not appear but that he entered at the next court day after his appointment. Held, that the cause was not discontinued by such continuances.</p> <p>The copies of appeal stated that, “upon suggestion of plaintiff’s death, B., his administrator, had leave to appear and prosecute said action. The defendant, by his attorney, thereupon suggested a plea in abatement, and afterwards a motion to dismiss, alleging that the plaintiff’s death had occurred previous to one or more of the last continuances, without having been suggested of record.” Held, equivalent to stating that the administrator had not only had leave to enter to prosecute, but that he was then actually prosecuting.</p> <p>After judgment before a justice and appeal by the defendant, and before entry of the appeal in county court, the defendant made a tender to the plaintiff’s attorney upon the debt and accrued costs, which the attorney received. Held, that the same could not operate as a tender, but only as payment pro tanto, there being no warrant for a tender at such stage of the case.</p> <p>The county court submitted to the jury to find what was due on the demand at the time said tender was made. Held, no error.</p>

Assumpsit. The case was referred. The question was, whether the plaintiff was entitled to $2 per day for 674 days’ work for the defendants, or only at the rate of $80 .per month.

Trespass, commenced before a justice of the peace, and appealed to the county court. The first count was for breaking and entering the plaintiff’s dwelling-house, and taking and carrying away a secretary therefrom, of the value of twenty dollars, whereby the plaintiff and his family were greatly disturbed in the possession of said dwelling-house. The second count was for taking and carrying away a secretary of the same value. The ad damnum was twenty-five dollars.

Assumpsit. Plea, the general issue and notice, and trial by jury, December term, 1872, Barrett, J., presiding.

Trespass for false imprisonment. Plea, the general issue, with notice of special matter, and trial by jury, December term, 1871, Barrett, J., presiding. In August, 1869, the plaintiff was prosecuted for selling intoxicating liquor contrary to law, and tried before the defendant, then a justice of the peace, found guilty, and fined $100.

Case for injury on a highway. Trial by jury on the assessment of damages, December term, 1878, Barrett, J., presiding. The court charged the jury, among other things not excepted to, as follows: “ Mr. Riford has testified, giving an account of himself through life, down to the present time.

<p>Slander. The first count alleged that the defendant, in the presence and hearing of one Cady, spoke and published to, and of and concerning, the plaintiff, these words: “ You (meaning the plaintiff) are a thief; ” by means whereof the plaintiff was greatly injured, &c. The second count charged the speaking of the same words to the plaintiff on another occasion, in the presence and hearing of another person. The third count charged, that on another occasion, in the presence and hearing of divers persons, the defendant spoke of and concerning the plaintiff, “ He (meaning the plaintiff) is a thief.’.’ The fourth count alleged the words spoken on the occasion named in the first count as, “ Well, old thief (meaning the plaintiff), what are you (meaning the plaintiff) down hero after ? ” The defendant filed a general demurrer to the declaration. The court, at the May term, 1873, Barrett, J., presiding, overruled the demurrer, and adjudged the declaration sufficient, and rendered judgment for the plaintiff; to which the defendant excepted. At the December term, 1873, Barrett, J., presiding, the case came on for assessment of damages by jury. Plea, the general issue, as shown by the exceptions.</p> <p>The plaintiff was called as a witness in his own behalf, and the defendant offered to show by him, for the purpose of rebutting malice, that differences and hostile feelings existed between them at the time of speaking the words charged ; but the court excluded the same. The defendant also offered to show by the plaintiff, that the foundation of the alleged slander was, that prior to the commencement of this suit, the defendant lived as tenant upon one of the plaintiff’s farms, and that they had an arbitration about some apples, which resulted in the apples being awarded to the defendant upon his paying ten dollars, which he paid, and that the plaintiff sent a man to take the apples away; but the court excluded the same. The defendant offered to show by himself, in mitigation of damages, that the plaintiff had made threats to him prior to the commencement of this suit, that he would ruin him in the law: but the court admitted the same only as bearing on the credibility of the plaintiff as a witness. The defendant ,also offered to show by one Carr, that the plaintiff, prior to the trial, made similar threats to him; but the court admitted the same only for the purpose aforesaid. The defendant offered to show, that he spoke the words charged, only to the plaintiff, and that he never spoke them to any other person ; but the court excluded the same. To all such exclusions of evidence, the defendant excepted. The court charged the jury that -it was not for them to inquire whether the words were spoken or not, or whether they were spoken in the sense and character imputed— that that was settled by the judgment; that they were not to inquire how the words came to be spoken ; that it was conceded that they were spoken, that they were' false and malicious, and imputed a crime that would subject the plaintiff to state prison ; to which the defendant excepted.</p> <p>The first three counts in the declaration, are insufficient to sustain this action, as they contain no innuendoes showing the sense in which the words were spoken, or that the defendant intended to impute to the plaintiff any crime. To say to a person, “ You are a thief,” does not necessarily charge him with having committed a crime, or of being guilty of an offence that subjects him to punishment; it simply accuses him of an offence. To accuse a person to his face, of having committed an offence, is not such a publiéation of the charge as the law recognizes, on which to predicate an action for slander. The expression, you are a thief, is susceptible of various meanings, and may be applied to persons in a variety of ways, according to the intended meaning to be given to the term thief; it may be used in a playful, joking manner, with no intent of charging any one with an offence; or it may be used as a weapon of sarcasm ; in either case, it by no means follows as a legal or logical conclusion, that one is exposed to a prosecution for stealing, by saying to him, “You are a thief.” This term may also be applied, and that too with truth, to the most trivial misdemeanor, for which there is no punishment known to the law. Brief as a declaration in slander may be when the words alleged to have been spoken are actionable in themselves, still, in order to sustain the action, and that the court may determine whether the words used are actionable, “ the words must contain an express imputation of some crime which is punishable —some capital offence, or other infamous crime or misdemeanor, and the charge upon the person must be precise.” The fourth count is insufficient, as it sets forth no legal cause of action; the words alleged are not in themselves actionable, as they do not impute any crime or offence; it contains neither colloquium nor innuendo, and is wanting in every essential averment necessary for a good declaration. Baldwin v. Hildreth, 14 Gray, 221; Tebbetts v. Groding, 9 Gray, 254; Kimmis v. Stiles, 44 Yt. 351; Hawks v. Hawley, 8 East, 421.</p> <p>The evidence offered by the defendant and excluded by the court, was clearly admissible for the purposes for which it was offered. The law is well settled, that under the general issue, the defendant may show that the words spoken referred to a known transaction which was then in the minds of the parties, and that he believed them to be' true, as well as the origin and circumstances attendant upon the uttering of them, that tend to show the intent of the speaker, and countervail the chargé of malice. Bond v. Kendall, 36 Yt. 741; Van Rensselaer v. Bole, 1 Johns. Cas. 279 ; Norton v. Ladd, 5 N. H. 203 ; Mason v. Mason, 4 N. H. 110; Williams v. Miner, 18 Conn. 464 ; Sibley v. Marsh, 7 Pick. 38. It was competent for the defendant to show the state of feeling existing between the parties at the time, and that the words were spoken in the heat of passion, under circumstances that would exonerate him from any charge of malice. Smith v. Miles, 15 Yt. 245 ; Townshend Slander, 626. The speaking of the words only to the person slandered, is not actionable ; and the defendant had a right to show, even after judgment had been rendered against him on demurrer, that he never spoke the words charged, only to the plaintiff, as affecting the question of damages. Sheffield <$• wife v. Van Beusen ‡ loife, 13 Gray, 304.</p> <p>It is conceded, that in a legal point of view, a demurrer admits the truth of the charges made in the declaration; but we deny that it does more than that. In the declaration in this case, there is no allegation that charges the defendant with having imputed to the plaintiff any crime, least of all, a crime that would subject the plaintiff to state’s prison. The court erred in their instructions to the jury, that certain facts, not charged in the declaration, were conceded to be true by the defendant; as it would necessarily convey a wrong impression to their minds, as bearing on the question of damages. It was also error for the court to instruct the jury that they had no right to consider any evidence tending to show the origin of the transaction, or the provocation the defendant had for charging the plaintiff as he did; as it was calculated to mislead the minds of the jury, and enhance the damages.</p> <p>A declaration for slander actionable per se, is sufficient in substance, which states the defendant’s motive, the slanderous matter, and shows that the slander refers to the plaintiff. No averment by way of prefatory inducement, of the circumstances under which the words were spoken, is necessary. 1 Chit. PI. 400, 403; 2 Saund. PI. & Ev. 794. The slander charged in this declaration is actionable per se. 1 Hilliard Torts, 290, § 20. This form of declaration has been sanctioned by the best authorities. 2 Saund. PI. & Ev. 806; 2 Chit. PI. 639.</p> <p>The testimony offered to show that there were differences and hostile feelings between the parties, for the purpose of rebutting malice, was not admissible for that purpose. Such testimony has no tendency to rebut malice. It is the class of testimony used to establish malice. The defendant’s offer to show his idea of the foundation of his slanderous utterances, for the purpose of mitigating damages, if it amounts to a justification, was properly excluded, for the reason that the defendant had pleaded no justification. 1 Hillard-Torts, 431, § 30; Shepard v. Merrill, 13 Johns. 475; Van Anlcin v. Westfall, 14 Johns. 234 ; Hutchinson v. Wheeler, 35 Yt. 330. But such testimony has no tendency to mitigate damages. It would not amount to a justification, if it had been pleaded. It does not show that the plaintiff was a thief. It is therefore irrelevant. Shepard v. Merrill, supra. Evidence of plaintiff’s threats was not admissible for the purpose for which is was offered. 1 Hillard Torts, 355 ; Andrew v. Bartholomew., 2 Met. 509. The disposition of the questions raised upon the admissibility of the evidence, disposes of the charge of the court.</p>

' Assumpsit upon a promissory note for $200, payable April 1st, 1870, and upon a-contract lor the purchase of a farm by the defendant of the plaintiff, executed October 21, 1869. Pleas, the general issue and a special plea in bar, and notice. Trial by jury, December term, 1873, Barrett, J., presiding. The plaintiff gave said note and contract in evidence, and introduced evidence tending to show that the defendant had refused to take the farm according to the contract.

Trespass for cutting trees and timber and peeling bark on the westerly half of hundred-acre lot No. 73 in Newbury, that half thereof being wild and unimproved land. Trial by jury, December term, 1871, Peck, J., presiding. The plaintiff introduced in evidence the original charter of said town, granted by the governor of New York, dated the 19th of March, 1772, in which, among other things, it appeared that Jacob Bailey and twenty-four others were the grantees of said township.

Case for injury to the plaintiff’s person and carriage, occasioned by reason of the insufficiency and want of repair of a certain bridge on a highway in the town of Washington. Plea, the general issue, and trial by jury, June term, 1878, Peck, J., presiding.

Case against the defendants as listers of the town of Wheelock, for appraising and setting in the grand list of 1858, one hundred acres of the plaintiff’s land in said town, at the sum of $800,… Held: that a grant of land by a sovereign state, providing and enacting in the grant that the land which is the subject of the grant, shall be forever exempt from taxation, is a contract, within the meaning of the constitution of the United States.

<p>The petitioner was ¿lie receiver and manager, under appointment of the court, of the Vermont Central and the Vermont & Canada Railroads In the course of business, large amounts due the petitioner from the earnings of th^so roads, accumulated in the hands of corporations and parties in other states The Vermont & Canada Railroad Company brought suit in the superior court at Boston, Massachusetts, against the trustees of the Vermont Central Railroad Company under a certain mortgage, and summoned also as trustees of the defendants, the corporations and parties ho.ding said sums ot money, for the purpose of locking up said funds in the bauds of the trustees, who were in doubt whether they could safely pay the balances to the petitioner. The petitioner prayed for an order enjoining the Vermont & Canada Railroad Company from prosecuting said suit, and to release its attachment of t‘ e funds. Held,</p> <p>First. That the proper record evidence of appointment as receiver, is conclusive evidence of the right of the party to act as such, until it is impeached. It is immaterial whether the order of appointment was erroneous or improper ; while it is a subsisting order, the receiver will be sustained in bis possesdon of the property.</p> <p>Second. The proceedings by petition are formal and valid, as the aid must be summary and speedy, to be beneficial. The remedy at law is not adequate.</p> <p>Third. The court has the right to restrain parties within its jurisdiction, from prosecuting suits in foreign courts, ground» d upon the fact that the party upon whom the order is made, is within .he jurisdiction of the court.</p> <p>Fourth. A receiver is indifferent to both parties in the suit. He is the officer and servant of the court, and entitled to its protection while in the proper discharge of his duty. Persons interfering with him are guilty of contempt of court. The prayer for relief' was granted.</p>