Volume 48 — Vermont Reports

Book Account to recover for the support of the plaintiff’s daughter Arabella, a pauper. .The plaintiff had supported her daughter previous to 1874, and all the items of her account, except the last, were for such support. The last item was for supporting said daughter from March 4, 1874, to January 5, 1875.

<p>Appeal from the Court of Chancery.</p> <p>In this case the masters taxed $7 per day for their services, besides -expenses and for making their report — in all $339. The clerk allowed their fees at $203. On appeal by defendants from the clerk’s taxation, the court, Bedeield, Chancellor, made the following order:</p> <p>It being conceded that the orators refused to file the report of the special masters, or pay their fees, and that defendants were compelled to pay the said masters’ fees, taxed by them at $339, in order to procure said report to be filed in court, the same is allowed at $339, as taxed by the masters and paid by defendants.</p> <p>From this order an appeal was taken to the Supreme Court.</p>

Case for injury to the wife upon a-highway. September Term, 1874, Redfield, J., presiding. On trial it was shown that the constable of defendant town was engaged in behalf of defendant to summon some of defendant’s witnesses, and to assist in the defence ; and the plaintiffs offered to prove that said constable offered to a witness of the plaintiffs certain inducements to keep away from the trial, and not appear as a witness for the plaintiffs.

Case for injury on a highway. Plea, the general issue, and trial by jury, March Term, 1875, Redfield, J., presiding.

The bill alleged that on the 3d of March, 1873, defendant rendered his account of 187.98 against Sleeper for services as his attorney, and informed Sleeper by letter that he would discount $17 for immediate payment;' that Sleeper endeavored to raise the money, and hoped the defendant would wait on him thirty days; that on the 18th of said March, defendant commenced a suit against Sleeper before a justice that he discontinued, and on the 20th of March commenced another suit…

<p>Indictment under s. 18, c. 94 of the Gen. Sts. for illegally selling cider in the respondent’s grocery. General demurrer to indictment. On argument of the demurrer at the September Term, 1873, PecK, J., presiding, the respondent’s counsel insisted -that said section did not apply to the sale of cider unless sold to an habitual drunkard, and claimed that the words, “ in the last proviso of this section,” and in the clause imposing a fine of ten dollars, could not be construed to include the sale of cider in any victualing house, &o., or other place of public resort, so as to have the penalty attach, unless the sale was to an habitual drunkard. No other objection was made to the indictment.</p> <p>The court overruled the demurrer and adjudged the indictment sufficient; to which the respondent excepted.</p>

This was a motion by the state’s attorney of Franklin County, upon the relation of John B. Page, of Rutland County, for leave to file an information in the nature of a writ of quo warranto against John G. Smith, of Franklin County, and others, none of whom resided in Washington County, requiring them to answer by what authority they claimed to exercise the office of directors of the Central Vermont Rail Road Company, and charging that for the space of thirty days and more,…

Case for damage upon a highway. Plea, the general issue, and trial by jury, March Term, 1875, Bedfield, J., presiding, and verdict for the defendant.

Case for neglect and refusal of defendant’s selectmen to take care of and provide for plaintiff as the statute required while plaintiff was infected with the small-pox in defendant town, by reason whereof said disease was communicated to plaintiff’s wife and four children, whereby three of said children died. General demurrer to the declaration.

.Replevin for a yoke of oxen. Plea, not guilty, and trial by jury, September Term, 1874, Redeield, J., presiding. Verdict for defendant and exceptions by plaintiff. The case appears from the opinion. The case presents but one point: can an arbitrator decide one half of the matters in dispute that he has heard, and have the award valid ? The authorities are uniform that such an award is invalid. Smith v. Potter, 27 Vt. 304 ; Morse v. Hall, lb. 660.

TROVER for a gray mare. The case was referred, and the referee reported that on the 19th of September, 1872, the plaintiff sold a bay mare to Charles and Edward Mero, for seventy-five dollars, and took their note therefor, still unpaid, with a clause therein that the mare was to be the plaintiff’s till the note was paid ; that the mare thereupon went into the possession of the said Edward, for whom she was bought, and that neither the note, nor any memorandum witnessing the…

Assumpsit upon a negotiable promissory note given for an interest in a patent-right, without the words, “ Given for a patent-right,” inserted therein. The case was referred, and the referee reported that the plaintiff took the note of the payee, who was the vendor of the patent-right, as security for money loaned, before maturity, in good faith, and without notice of what it was given for.

Case for injury upon a highway. Plea, the general issue, and trial by jury. September Term, 1874, Ross, J., presiding. The written notice given by the plaintiff to the selectmen, described the place of accident as between North Concord bridge and .Victory line.

<p>Appeal from the Court of Chancery.</p> <p>This was a bill to redeem a yoke of oxen and a marc. The bill was answered, and witnesses were examined before Ross, Chancellor, by agreement, and the following facts found:</p> <p>On February 28, 1870,.the orator confessed judgment in favor of one Fuller, for $151.18 damages and.costs, whereon execution was issued. The judgment and execution were assigned to the defendant, and the execution put into the hands of an officer for collection, who was about to levy the same on said property, when, on April 28, 1870, the orator, to prevent said property from being taken in execution, executed a bill of sale thereof to the defendant, to .secure the payment of the execution, which then amounted to $156.21, conditioned that the orator should retain possession of the property, and that he might redeem the same in thirty days by paying the amount of the execution and interest thereon, whereupon the officer returned the execution satisfied. The time of redemption was extended from time to time until June 13, 1870, when the defendant took the property from the orator’s possession because the orator had failed to redeem the same within the time limited, but at the same time told the orator that he could have two weeks longer in which to redeem, and the property was understood to be worth considerably more than the amount of the execution.</p> <p>On August 29, 1870, while the property was yet in the defendant’s possession, and could have been redelivered without detriment to him, the orator tendered him $170 and demanded the property. The sum tendered was sufficient to have paid the execution and interest, and for keeping the property, and all the defendant’s trouble; but the defendant refused to receive the same, or to redeliver the property, and claimed that the orator had no right to redeem, and afterwards sold the property as his own. At the time the tender was made, the property was worth $225.</p> <p>The court decreed that the orator recover of the. defendant $57 and interest from August 29, 1870, with costs; from which the defendant appealed.</p> <p>cited Goty v. Barnes, 20 Vt. 78; Washburn v. Washburn, 28 Vt. 576; 2 Story Eq. Jur. ss. 1030, 1031; 4 Kent Com. 157.</p> <p>cited Smith v. Pettingill, 15 Vt. 82; Wing v. Rail, 44 Vt. 118 ; Reeve’s Dom. Rel. *386.</p>

<p> Chancery. </p> <p>It is not optional with a party whether he will proceed at law or in chancery. He cannot resort to chancery where his remedy is adequate at law.</p>

General Assumpsit. Plea, the general issue, and trial by jury, September Term, 1874, Redfield, J., presiding. Held: pro forma, that the action could be maintained, and that plaintiff was entitled to recover; to which the defendant excepted.

Assumpsit for six tons of bay. Plea, the general issue. The plaintiff testified, and gave evidence tending to show, that he sold the hay to the defendant absolutely at defendant’s house in the fall of 1870.

<p> Deposition. </p> <p>When a party verbally agrees with the adverse party upon the time and place of taking a. deposition, and the deposition is taken accordingly, without the attendance of the adverse party, and the party prepares and appears for trial, relying upon the use of the deposition, the adverse party cannot repudiate the agreement and object to the deposition for want of notice.</p>

TRESPASS for assault and battery. Plea, the general issue, and notice of former adjudication. Trial by jury, December Term, 1874, Ross, J., presiding.

General Assumpsit. Plea, the general issue, and trial by jury, June Term, 1875, Ross, J., presiding.

<p>BOOK Account. Many of plaintiff’s charges were for his services and disbni’sements as defendant’s attorney in divers suits be-' tween defendant and one Putnam, and especially in a suit that defendant brought against said Putnam to foreclose the latter’s equity of redemption in a certain farm that defendant had sold him, and during the pendency of which, plaintiff had purchased Putnam’s equity of redemption therein for his own benefit, and had attempted to redeem by tendering defendant the amount of his claim thereon, and upon defendant’s refusal to accept the tender, had brought a bill to redeem, to which defendant made answer, claiming that as plaintiff was his solicitor at the time of his purchase, the purchase should enure to defendant’s benefit, which was so decreed. For a fuller statement of facts, see 43 Vt. .269. Item 38 of plaintiff’s account was $25 for services in purchasing said equity. This charge was not made till after it was decided that that purchase enured to defendant’s benefit. The auditor allowed the item as a reasonable compensation for the services. The auditor cast interest on the yearly balances. All the other facts sufficiently appear in the opinion.</p> <p>The court, at the June Term, 1875, Ross, J., presiding, rendered judgment on the report, pro_ forma, for the plaintiff; to which defendant excepted.</p>

<p> Statute of Frauds. Consideration. </p> <p>Defendant verbally promised plaintiff if he would not present his bill for doctoring her deceased husband in his last sickness for allowance by the commissioners, she would pay .it; to which plaintiff agreed, and, relying upon said promise, forebore to present if.. Deceased had no minor children, and his real estate was worth loss than $600,Jand his personal estate less'than $100, and the Probate Court assigned the whole to the defendant. Held, that the promise was within the Statute of Frauds, and without consideration.</p>

Teover for a traverse sled. Plea, the general issue, and trial by the court, June Term, 1876, Ross, J., presiding. in 1868, one Scott took a traverse sled to defendant Freeman, a blacksmith, to be ironed. Scott furnished one pair of runners and the iron pins, and Freeman furnished the rest of the iron and did the work, and charged $18.

<p>Slander. Plea, the general issue, and trial by jury, December Term, 187 ±, Ross, J., presiding, and verdict for plaintiffs.</p> <p>The case was tried upon the following amended declaration:</p> <p>For that whereas the said Martha Merritt, the wife of said John Merritt, plaintiff, now is a chaste woman, and from the time of her nativity hath been so, and hath been accounted, esteemed, and reputed as such among her neighbors, as well as of good reputation and fame by all other good people, and hath all her lifetime continued chaste and unsuspected of the atrocious crime of adultery; and whereas also the said Martha Merritt, wife of the said John Merritt, hath never been guilty, or until the time of the committing of the several grievances by the said Roderick Dearth as hereinafter mentioned, been suspected to have been guilty of the offences .and misconduct hereinafter mentioned to have been charged upon and imputed to the said Martha Merritt, or of any such offences or misconduct, or of any other such crime ; nevertheless, the said Roderick Dearth, defendant, though well knowing the premises, but contriving maliciously and wickedly to injure and defame the plaintiff in her good name and reputation, and to bring her to disgrace and infamy, and to subject her to the penalties and punishments provided by law in cases of adultery, for that the said defendant heretofore, to wit, at Danville, in said county of Caledonia, spoke of and concerning the said plaintiff, Martha Merritt, wife of said John Merritt, she then and there being a married woman, to wit, the wife of John Merritt aforesaid, the following false, scandalous, defamatory and infamous words in the presence of divers good people of this state, to wit: “ Mrs. Shattuck, the wife of C. 0. Shattuck, got Mrs. Merritt (meaning the plaintiff Martha Merritt) to sleep with her son William Shattuck, (said son being of adult age), and son of the said Mrs. Shattuck; ” meaning that the said Martha Merritt, plaintiff, was then and there guilty of the crime of adultery with the said William Shattuck.</p> <p>Also in a further plea of the case, for that afterwards, to wit, on the 21st day of October, 1872, the said defendant spoke and published of and concerning the plaintiff, Martha Merritt, the said wife of* John Merritt, these other false, scandalous and defamatory words, in the presence of divers good people of this state, to wit, at Danville aforesaid, on the day aforesaid, to wit, ho, the said defendant, told Henry Williams that he, said Henry, had intercourse with the said plain'iiff, Martha Merritt, wife of John Merritt; meaning that the said plaintiff, Martha, had committed adultery with said Henry Williams, he said Henry Williams then being a married man, and the said plaintiff, Martha Merritt, wife of John Merritt, then and there being a married woman.</p> <p>After verdict and before judgment, the defendant moved in arrest of judgment for the insufficiency of the declaration. Motion overruled and defendant excepted.</p>

<p> Mortgage. </p> <p>A owed B, and also the orators. Orators applied to A lor security on liis iarm, and inquired of B, who knew about A’s affairs, whether tho farm was incumbered, and he said no, except by mortgage to II. At the same time B had an unrecorded mortgage of the farm, of which orators had no notice, but they knew A owed B. B offered to take a joint mortgage with orators, which they refused. Orators and B went to the town clerk’s office together, and inquired about incumbrances on the farm, and B, seeing orators wore about to got a mortgage, loft his for record, after which, on the same day, orators gave their mortgage to B to leave for record, but B did not then tell them of his mortgage. Orators did not prove that they were damnified by B’s not telling them of his mortgage when they handed him theirs. Held, that B’s mortgage had priority.</p>

<p>Petition for a writ of certiorari. The case was this. The petitionee brought a complaint against the town, returnable to the December Term, 1874, of Caledonia County Court, setting up that her husband, Lewis Weeks, was, and for a long time had been, confined in tbo asylum for the insane at Brattleboro ; that his legal settlement was in Peach am; and praying that said town of Peacham bo ordered to maintain and support him at said asylum. The complaint, with citation attached, was served on the town only fifteen days before court, and the town pleaded in abatement and moved to dismiss for that reason; but the court overruled the plea and motion, and held that service twelve days before court was sufficient. The town, on trial, insisted that the said Weeks’s legal settlement was not in said town, for that it bad beén interrupted by bis confinement in said asylum ; but the court held otherwise, and granted the prayer of the petition. The petition in this case was brought to correct the proceedings in that.</p> <p>to the point that the complaint should have been served thirty days before court, cited Gen. Sts. c. 33, ss. 1, 19; and to the point that the time the said Weeks had been confined in said asylum should not be computed as part of the time required to gain a legal settlement, but should be deducted therefrom, cited Gen. Sts. c. 20, s. 40.</p> <p>The complaint and citation were not a writ within the meaning of s. 19, c. 33, Gen. Sts., and twelve days’ notice was all the statute required. Section 40, c. 20, was intended to apply to cases where a person has no property when sent to the asylum, and not a sufficient list to enable him to acquire a settlement in less than seven years.</p>

This was a bill to reform a deed from Ephraim Paddock to defendant Bagley, alleging that in the 5th course in the description, the word east was erroneously used instead of the word- west, whereby more land was conveyed than was intended to be; that Paddock willed all his real estate to his wife, who died, leaving it all to defendant Paddock, her son and sole heir, who had quit-claimed his interest in the land erroneously included in said deed, to the town of St. Johnsbury;…

Replevin for a cow. Plea, not guilty, and trial by jury, December Term, 1878, Ross, J., presiding. It appeared in evidence that the cow in question was purchased by plaintiff of one John R. Batchelder, for the sum of $50, for which plaintiff made his note in favor'of said Batchelder, or bearer, with the condition that said cow was to remain the property of said Batchelder till said note was paid, annexed thereto.

<p>GENERAL Assumpsit. Plea, the general issue, trial by jury, and verdict for plaintiffs, December Term, 1874, Powers, J., presiding.</p> <p>Plaintiffs were dealers in safes known as the Tilton, McFarland safe, and on the 18th of February, 1878, one Jacobs, plaintiffs’ traveling agent and salesman, negotiated a sale of one of plain-tills’ safes to the defendant, at St. Johnsbury, and on that day took an order for a safe as follows :</p> <p>'■'■Messrs. Tilton, McFarland: — Please send me as soon as possible, 1 No. 4 safe with combination lock, for which I agree to pay $150 as follows; $75 in six months from shipment, and $75 in nine months from shipment, free of interest.</p> <p>St. Johnsbury, Vt., Feb. 18, ’73. Geo. JEL Tisdale.”</p> <p>This order was written by Jacobs, signed by defendant, and forwarded by Jacobs to plaintiffs in Boston, and within a few days plaintiffs shipped a No. 4 safe with combination lock of plaintiffs’ make, to the defendant, and the same was received by defendant on the "2Gth or 27tli of February, and placed in his store.</p> <p>This suit was brought to recover the first instalment of the purchase money, and payment was resisted on the ground that plaintiffs had practiced a fraud on defendant in the sale, by delivering a second-hand safe, cracked near one of the hinges to the door, with a broken axle or pivot to one of the trucks, and with a combination lock that was either imperfectly constructed, or broken so that it was of no value. The main controversy was as to the condition of the lock. All the above-named defects were discovered by the defendant, as he testified, within a day or two after the delivery of the safe, and the parties liad some correspondence relative to the lock, and in March the lock was taken off' and sent to plaintiffs for their inspection, and they examined it and pronounced it perfect in all respects. The plaintiffs’ evidence tended to show that the safe and lock were perfect, new, and in all respects in good working order ; the defendant’s evidence tended to show the contrary.</p> <p>It appeared from the evidence on both sides, that the lock was so constructed that no person, unless instructed in its mechanism and acquainted with the manner of operating it, could lock or unlock it; that the Ibck was operated by means of a knob that revolved a dial bearing numbers from one to one hundred, which showed on the front of the door, and that on the same axle with the dial, and inside the door, were three wheels, each having a slot in the edge or circumference, and that it could only be unlocked when the slots were in line, so as to receive a clog or lever, and by the dropping of the lever into the slots, the bolts were free, and the door could be opened! It appeared that defendant had no acquaintance with the working of combination locks, and was unable to open it by the aid of printed instructions which accompanied the safe, and which purported to instruct purchasers how to operate the lock.</p> <p>The defendant’s evidence further tended to show, that he procured other parties who had had experience with combination locks, only one of whom, however, had any acquaintance with the plaintiffs’ lock, but all had locks similar to the plaintiffs’ in principle, and that these parties were unable to operate the defendant’s lock. Jacobs testified that in March, he saw the safe in defendant’s store, and found that a screw on the backside of the lock that fastened the cap or lid which formed the backside of the lock, was turned too tight, and thus impinged upon one wheel, and that by loosening it a trifle, the wheel was relieved, and the lock then worked without difficulty. The plaintiffs’ testimony teuded to show that this difficulty was one that any person of ordinary intelligence, and with ordinary attention to the instructions, would observe and remedy, and that it was no defect in the lock itself. It appeared that the defendant, during the time he had the safe in his store, occasionally kept his books and papers in it, and occasionally could lock and unlock it.</p> <p>On trial, the defendant offered to show that at the time he ordered the safe, Jacobs told him the company always manufactured their safes after receiving an order, and that it would be five or six weeks before this safe could be delivered. This evidence was excluded, to which the defendant excepted. The defendant kept the safe till sometime in October, 1873, and for several weeks after the correspondence between the parties had terminated, and then shipped it back to plaintiffs, but plaintiffs declined to receive it. *■</p> <p>Defendant requested the court to charge the jury, that there \^as an implied warranty on the part of plaintiffs, that the lock was such a lock' as a person of ordinary skill and capacity could lock and unlock ; but the court refused so to charge, but charged that there was no implied warranty that a person of ordinary skill and capacity could operate the lock ; that it was the duty of the plaintiffs, upon the receipt and acceptance of defendant’s order, to ship, in accordance with such order, one of their No. 4 safes with combination lock that would be merchantable, both as respected the lock and the safethat the order described a certain kind of safe, and the plaintiffs should act in good faith, and practice no fraud in complying with such order, but that whether the defendant had or could acquire the skill to operate the lock, was a risk that he assumed when he ordered the safe, and that plaintiffs were bound to ship a safe that had no inherent defects or imperfections so far as they knew, and one that in the exercise of good faith on their part, they supposed to be, and one that in fact was, a safe that would pass in the market as merchantable. To the refusal to charge as requested, and to the charge as given, the defendant excepted.</p> <p>The court further charged, that if plaintiffs practiced a fraud on defendant, by delivering him a safe that they knew was imperfect in the structure of the lock, or in any other respect, the defendant, although he had returned the safe, would have the right to urge such fraud in defence to this action, and would be entitled to have deducted from the purchase money, whatever sum the safe delivered was worth less than the safe ordered ; but that if the difficulty with the" lock was such a difficulty as plaintiffs claimed —simply a fault in the adjustment as testified to by Jacobs, and a fault that, with ordinary attention and skill, could bo remedied by the operator — it was not a defect that could be set up in answer to this action. To this part of the charge relating to the character of the defect in the lock, the defendant excepted.</p> <p>The court further told the jury that if plaintiffs recovered, they would be entitled to recover interest on the instalment from the expiration of the term of six months from the date of shipment of the safe ; to which the defendant excepted.</p> <p>On February 27, 1873, plaintiffs wrote defendant as follows :</p> <p>Happening to have a safe in stock made as you ordered, wo gave it a fresh coat of varnish, and shipped it to you yesterday, supposing you would be pleased to get it sooner than you expected. We made bill and drafts which we now inclose, so as to make payments as you agreed with Mr. Jacobs, viz : six and nine months from April 1, 1873.</p> <p>The testimony offered by the defendant, to show what Jacobs said at the time the order was given, was improperly excluded. It was not inconsistent with the written order, but simply showed what the parties understood by the words, “ as soon as possible.” Holbrook v. Holbrook, 30 Yt. 132 ; Winn v.’ Ofiamberlin, 32 Yt. 818 ; Wing v. Gfray, 36 Yt. 261; Bugg v. Hale, 40 Yt." 138 ; Randall v. Kelsey, 46 Yt. 158.</p> <p>The court should have charged 'that plaintiffs were bound by the contract to send a safe that persons of ordinary skill and capacity could lock and unlock.</p> <p>The court erred in charging, that if the difficulty with the lock was simply a fault in its adjustment, as testified to by Jacobs, it was not such a defect as could be set up as a defence to this action. Plaintiffs were bound to send dependent a safe perfect in every respect.</p> <p>Plaintiffs can only recover interest from April 1, 1873, as per the terms of their letter.</p> <p>The order calls for a safe “ as soon as possible,” and makes no other mention as to time when plaintiffs were to deliver it. That order, when accepted by plaintiffs, became the contract by which both parties were bound, and affords the only evidence of the sale. It specifies the kind of safe sold, and the time when it was to be delivered. The phrase, “ as soon as possible,” is not a technical nor ambiguous phrase. 2 Parsons Cont. 497. This phrase merits a different construction in this action than it would if the defendant was prosecuting his suit against the plaintiffs for neglecting to furnish him a safe within the time specified in the written contract. In such a case, the plaintiffs could only claim a reasonable time. Atwood v. Emery, 1 C. B. N. s. 110 ; Davis ¿- Aubin v. Bradley, 24 Yt. 55. Again, the safe was accepted by the defendant, and it is now too late for him to question the delivery before the time contracted. Hilliard Sales, 215 el seq. ; Elagg v. Dryden, 7 Pick. 52.</p> <p>The law does not imply that the purchaser could operate the lock, but it does require that the safe should be of merchantable quality. Hilliard Sales, 335, s. 4 ; 338, n. 6 ; 351. The following cases fully establish the doctrine laid down by the court below. Elkins v. Parkhurst, 17 Yt. 105; Hart v. Hammett, 18 Vt. 127 ; Goss v. Turner, 21 Yt. 437 ; 24 Yt. 114 ; 40 Yt. 588 ; 1 Parsons Cont. 583, 587, note. As the contract itself contains no warranty, the lav/ presumes none. Heed v. Wood, 9 Yt. 285 ; Bond et al. v. Clark, 35 Vt. 577; Chanter v. Hopkins, 4 M. & W. 399.</p> <p>The. jury has found that there was no fraud practiced by the plaintiffs in the sale of the safe, and that there was “ no lack of good faith ” on the part of the plaintiffs; that the defect in the lock was not an inherent one, but was merely a fault in its adjustment, and that this fault might have been remedied by a person of ordinary care and skill. This court has never permitted a party to recoupe damages in such a case as this. The jury has found that the safe sent was such as the order called for, and that there was no lack of good faith. Bragg v. Bradford, 33 Yt. 35 ; Eddy v. Clement, 38 Yt. 486.</p> <p>The first installment was due in six months from February 18, 1873 ; hence the plaintiffs were entitled to interest from the expiration of the six months. 22 Vt. 437; 9 Pick. 368, 388 ; 9 Johns. 71.</p>

<p>Replevin for a quantity of lumber. Pleas, not guilty, and justification as collector of taxes of the town of Westmore, under a rate-bill and warrant for the collection of a tax against plaintiff.</p> <p>It was conceded that the tax upon which said lumber was taken was regularly aud legally assessed, and that defendant’s proceedings were regular, provided the lumber was not exempt from taxation under the statute of 1867, and subsequent statutes amend-atory thereof. It was agreed that on October 11, 1870, plaintiff bought about 2000 acres of timber laud in Westmore, and on the 25th of October, about 175 acres more ; that during the following winter plaintiff cut-and drew about two and'a half millions feet of lumber from said lands, and left it upon the ice in Long Pond in Westmore, for the purpose of having it cut into lumber and delivered. at a railroad station for shipment to market under a parol contract then existing between plaintiff and one John H. Jacobs, and subsequently reduced to writing, as hereafter stated ; that in the spring of 1872, the listers set said lumber in the list to the plaintiff; that there was then no mill in the vicinity of said pond for cutting said lumber, but that on March 19,1872, said verbal contract was reduced to writing, whereby it was agreed that said Jacobs should erect a steam mill upon plaintiff’s said land, and should annually for five • years, manufacture for plaintiff certain large quantities of lumber therein specified, at certain prices named, and deliver the same at the railroad station at West Burke ; that in consideration that plaintiff would furnish the lumber in the log for erecting said mill, the mill, but not the machinery therein,.and the other buildings that Jacobs should erect upon the land, should remain thereon at the termination of said contract, and be the property of the plaintiff, and that Jacobs was to cut lumber in said mill for no one but plaintiff.</p> <p>In the winter of 1871-2, Jacobs drew a steam engine-upon the land near said pond, in contemplation of said contract, and the listers of Westmore placed the same in the list of 1872, and marked the same as exempt for five years, under the statute ; and said mill and other buildings and the machinery, when built and put in operation, as they were in the summer-of 1872, were placed in the list, aud are still placed in the list, as exempt under the statnte ; and this was done from the outset, upon the claim of said Jacobs, who built said mill, that the same was exempt under the statute.</p> <p>A motion to dismiss was filed, but was not considered by the court. •</p> <p>Trial by the court, June Term, 1874, Ross, J., presiding, and judgment, pro forma, for the defendant. Exceptions by the plaintiff.</p>

<p>Appeal from Decision of Commissioners. Evidence. Competency of Witnesses under s. 24, c. 36, of the G-en. Sts.</p> <p>An appeal from the decision and report oí commissioners upon an estate, vacates the j udgment oí the Probate Court, and carries the whole matter of claim and counterclaim before the County Court, to be acted upon as ii it had original jurisdiction, and the same are to be litigated and adjudicated in that court without regard to what was adjudicated by the commissioners.</p> <p>Where the commissioners’ report does not show what claims were exhibited to them, it is competent, on appeal from their decision, to shotf that fact by evidence aliunde.</p> <p>The provision of s. 24, c. 36, of the Gen. Sts., “that in actions of book account, and when the matter at issue and on tyial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are, and when made, and no further,” is not confined to cases where the action is, in form, book account, but is applicable in any suit or •proceeding where such matter is at issue and on trial.</p> <p>Plaintiff’s cause of action was all matter of contract with the intestate, and that ivas in issue. The defendant estate pleaded accord and satisfaction, and to support the plea, introduced a paper writing from the intestate to the plaintiff. Held, that the plaintiff was not a competent witness to explain said writing, and to show what was said and done when it was made and delivered to him.</p>

Cabe. Pica, the general issue, and trial by jury, December Term, 1874, Caledonia County, Ross, J., presiding.

This case was heard on the report of commissioners appointed to appraise the damages plaintiff claimed to have sustained on account of defendant’s having taken his land for the use of its railroad. The commissioners reported as follows: The legislature of this state, at its October session, 1849, passed an act incorporating the St. Albans & Richford Plank Road Company.

, GENERAL Assumpsit. Plea, the general issue, and notice of payment. Trial by jury, December Term, 1872, Windsor County, Barrett, J., presiding.

The case was this. Mrs. Hilliard was formerly the wife of Isaac McDaniels, and upon his death, was appointed administra-trix of his estate. She subsequently married the plaintiff, Miner Hilliard, whereby her authority as administratrix was extinguished.

Cask. All the material facts are stated in the opinion. At the September Term, 1874, Chittenden County, PiERPOiNT, Ch. J., presiding, the court rendered a pro-forma judgment on the referee’s report for the plaintiff to recover $2500 damages and his costs; to which the defendant excepted.

TRESPASS qua. clan. Plea, general issue, and trial by jury, September Term, 1872, Franklin County, Royce, J., presiding, and verdict and judgment for plaintiff. It appeared that in December, 1821, plaintiff purchased and took a deed of Lois Bradley, executrix of Anson Bradley’s will, of a farm containing about one hundred acres, lying directly east of lots 39 and 40, and lot 39 is the one on which the trespass complained of was committed.

This was an action founded on s. 10, c. 51, of the Gen Sts. The case was referred, and the referee reported as follows ; On the 10th of August, 1869, Joel G. Watkins died intestate at Chester, Yt., being at that time a resident in said town. He left a widow, then living in the state of Iowa; also, a sister, Drusilla T. Watkins, one nephew, and three nieces.

Case in two counts. The first count alleged the. recovery of a judgment by plaintiff against one Dutton, in the City Court of the city of Burlington, on March 24, 1873, in an action of assumpsit for money had and received by said Dutton in a fiduciary capacity, and the issuing of a certified execution on said judgment, and the commitment of said Dutton thereon, on April 3, 1873, to the jail in Orleans County, whereof defendant as sheriff of said county was keeper, and that…

Assumpsit for work and labor. Picas, the general issue and offset. Trial by jury, September Term, 1875,PiERPOiNT, Oh. J., presiding. The suit was originally commenced against Crane & Stacy, but Crane having become a bankrupt, it proceeded against Stacy alone.

Case for deceit in the sale of land. Trial by jury, September Term, 1875, PierpoiNT, Ch. J., presiding, and verdict for the plaintiff.

Case for injury on a highway. Pica, the general issue, and trial by jury and verdict for the plaintiff, April Term, 1875, Pierpoint, Ch. J., presiding. The injury was received on Dec. 81, 1873, and a defective notice thereof was given on Jan. 22, 1874. The question., was whether plaintiff was so bereft of his reason in consequence of the injury that he was absolved from giving notice.

General Assumpsit for money paid for liquor sold in violation of law. The case was referred before the plaintiff had filed specifications, and when the general issue was the only plea pleaded. After the hearing before the reference had been once continued, the defendant filed a plea in offset for money paid for liquor sold in violation of law, and at the final hearing before the referee, the plaintiff filed specifications of his claim.

GenbRal Assumpsit. Plea, the general issue, and trial by jury, April Term, 1875, Pierpoint, Ch. J., presiding. The plaintiff, one of the firm of Malley & Gastello, offered in evidence a promissory note for $50, dated May 15, 1874, payable to the order of Malley & Gastello in four weeks from date, signed by the defendant, and indorsed in blank by the payees.

Case. Plea, the general issue. The case was referred, and it appeared from the referee’s report, that plaintiff and defendant exchanged carpets, and that at the time of the .exchange, one Irish had a valid lien on the carpets that defendant let plaintiff have, of which defendant had knowledge.

<p>GENERAL Assuivipsit. The case was referred, and the referee reported as follows:</p> <p>Plaintiff claims to recover the amount of a certain order for $100, drawn by one Bissonette on defendant in favor of plaintiff, February 5, 1872, and on that day delivered np by plaintiff to defendant, and charged to defendant on book, and credited by defendant to plaintiff. In respect to this claim, the facts are as follows: Prior to the date of said order, defendant contracted to a anufacture and deliver to plaintiff a certain quantity of metallic sap spouts, and the entire book charges and credits -of both parties related to this contract, defendant charging plaintiff with the spouts delivered, and crediting him whatever he admitted he had received in payment, and plaintiff charging defendant with all the payments he made him. Among the payments made by plaintiff to defendant, were three items of $100 each, consisting in the surrender by the former to the latter of three orders of Bissonette on the defendant in favor of the plaintiff, charged February 5, 1872, July 81, 1872, and January 22, 1873, respectively. These were all correctly charged to defendant by plaintiff, and credited plaintiff by defendant, on their respective books. In this state of their accounts, plaintiff, not consenting to pay defendant what he claimed, was sued by the latter in an action of book • account, returnable to the March Term, 1873, of Washington County Court. That case was duly entered in court, and judgment to account was rendered, and an auditor appointed, and the cause continued to the September Term, 1873.</p> <p>Subsequent to the commencement of said suit, but before the audit, Smilie, claiming that there had been some mistake in crediting one of these Bissonette orders, and that it had been accounted for in some other way, charged the plaintiff on his ledger, “ To error in Bissonette order, $100.” In point of fact there was no mistake in crediting any of these orders, and the defendant never had accounted for them in any other way than by crediting them to plaintiff as above stated, and the charge so made by Smilie was incorrect.. The fact that Smilie so claimed, or had made this charge upon his book, was unknown to plaintiff' or his attorney or the auditor, until after judgment was rendered in that suit. When the cause came on for hearing before the auditor, Smilie presented his specifications, the debit side of which was the same as the debit side of his book, except that the charge of “ error in Bissonette order, $100,” was omitted, and the credit side was the same as the credit side of his book, except that the first Bissonette order was omitted, leaving the balance upon his specifications the same as upon his book as it then stood. He did this for the purpose of simplifying his specification, the net result not being altered. At the opening of the hearing before the auditor, and at his suggestion, the parties compared the credits given by Smilie with the charges made by Post, for the purpose of ascertaining what items on that side of the account were in dispute.</p> <p>The exact method in which this comparison was made, whether by comparing Smilie’s credits on his book with Post’s charges on his book, or by comparing the credits on Smilie’s specifications with the charges on Post’s book, the referee is unable to find ; but the. result was, that Post, in ignorance of the discrepancy between Smilie's credits on his specifications and those on his book, and supposing that all three Bissonette orders were credited on Smilie’s specifications, conceded that there was no dispute as to the amount of credits on Smilie’s specifications, and the auditor thereupon, throughout the hearing, proceeded upon such concession, and treated the credits of payments on Smilie’s specifications as a correct statement of all payments made by Post, and Smilie’s book was not thereafter under examination during the hearing, but his specifications were treated as his book, by the auditor and the parties.</p> <p>Post also presented before the auditor a specification of his claim, which was a copy of his book, and contained charges of all three of the Bissonette orders ; and he testified generally when he presented it, that his specification was correct.</p> <p>The hearing thereupon proceeded, both Post, his attorney and the auditor being ignorant that one of the Bissonette orders had been omitted from the credits on Smilie’s specification, and all.of them supposing that so far as these three orders were concerned, the debit side of Post’s specification and the credit side of Smilic’s were alike. No discussion arose during the trial in regard to the Bissonette orders, and the auditor did not regard any question concerning any of them as in dispute ; but he had before him Post’s specification, in which three of them were charged, and Smilie’s .specifications in which but two were credited. The contest before the auditor was confined to the debit side of Smilie’s account, and divers items of Post’s account that were connected with the latter’s claim that Smilie had not fully performed his contract.</p> <p>v{? $r? -$■ & sjc* % %</p> <p>All the parties, as well as the auditor, intended to have all the items between the parties adjudicated and disposed of by the auditor, and the plaintiff and the auditor supposed they were, until after judgment had been rendered upon the report and execution had issued; but, as before remarked, until after execution had issued, neither the plaintiff, his attorney, nor the auditor, were aware of the error that had been made in conceding that the credits of payments on Smilie’s specifications were identical with the charges of payments on Post’s specification.</p> <p>ir Í{Í "5{í itf ■'&</p> <p>The referee finds that in consequence of the foregoing facts, the order of Bissonette for f 100 on Smilie in favor of Post which Smilie had the benefit of on the 5th day of February, 1872, as a payment of that sum toward what Post owed him under the contract, and was a proper charge on book against Smilie as such a payment, and was regularly and correctly entered as such by both parties on their respective books, did not enure to Post’s benefit in the auditing of accounts in said suit, but was entirely lost to Post so far as that cause was concerned; and the referee, on the foregoing facts and findings, decides that the plaintiff is entitled to recover of the defendant the amount of that order, being $119.02.</p> <p>The defendant objected to any parol testimony by the auditor, as to what transpired before him, and as to his course in making up his report, claiming that the report itself was the only proper evidence in that respect; but the referee overruled the objection, and allowed the auditor to testify, and, aided by his testimony, the referee has found the foregoing facts in these respects.</p> <p>The court, at the September Term, 1875, Pierpoint, Oh J., presiding, rendered judgment on the report, pro forma, for the plaintiff, with costs ; to which the defendant excepted.</p> <p>-for the defendant.</p> <p>. There is error of law in the decision of the referee that plaintiff is entitled to recover upon the facts stated. The referee finds that the matter in demand in this suit, is an order for $100 by one Bissonette, drawn upon the defendant in favor of the plaintiff, and by him delivered to the defendant, and by defendant received as a payment upon an acknowledged liability, not as a payment upon account, but upon an express contract. No cause of action accrued to the plaintiff upon that payment. No action can be maintained upon such payment, even though in a subsequent suit between the parties the party loses the benefit of the payment. Peach v. Mills, 14 Yt. 871; Bronson v. Bugg, 89 Yt. 241; Jewett v. Winship), 42 Vt. 204.</p> <p>The $100 in question in this suit, was adjudicated in the former suit, as matter of law. It was upon the then defendant’s now plaintiff’s specifications in the former suit, and not withdrawn. Loomis v. Pulver, 9 Johns. 244 ; Lorvng v. Mansfield, 17 Mass. 394; Bendenagle v. Cox, 19 Wend. 207 ; 4 Conn. 362 ; 2 Conn. 431; 3 Day, 255; Freeman on Judgments, ss. 279, 286.</p> <p>If the court are of opinion that plaintiff is entitled to recover, he should not be allowed his costs. Gen. Sts. c. 125, s. 23.</p> <p>The testimony of the auditor as to what took place before him, and as to his course in making up his report, was properly admitted. This testimony in no sense varied or contradicted anything in bis report, but it only “ aided” the referee in finding the fac's that appear in his report, and in determining the question whether or not the claim presented in this suit was adjudicated in the former one. It is a well settled rule, that parol evidence may be received for the purpose of showing whether or not a certain question was determined in a former suit. After a record of a former judgment .has been put in evidence, it may always be followed by such parol evidence as may be necessary to give it its proper effect, to show the scope and extent of the decision ; either to show that the issues actually determined were in fact broader and more extensive than what appears on the face of the judgment itself, or to show that some fact was not passed upon and determined at all, which apparently on the face of the record was adjudicated in a former suit. Freeman Judg. 297, 298 ; Spooner v. Davis, 7 Pick. 116 ; Siemens v. Siemens, 37 N. Y. 59; Qray v. Pingry, 17 Yt. 419.</p> <p>Ihc conclusion to be drawn from the facts reported is, that in the former trial this order was not presented at all, was not considered by the auditor, was not passed upon by him, was neither allowed nor disallowed, and was not adjudicated. Under such a state of facts, the judgment in the former suit is no bar to a recovery of the plaintiff’s claim in this. It being matter in offset, the plaintiff was not obliged to present it at all in that suit. He could omit to present, it of his own motion, and still bring an independent suit on it; and is he in any worse condition in this respect because his omission to present it in that suit was in consequence of the act of the defendant? That a claim in offset, or cross claim, need not be presented, and if not presented, is not barred, see Freeman Judg. 302. The rule of law as to a former judgment being an estoppel in reference to matters of fact, is, that it is conclusive only as to facts directly and distinctly put in issue, and the finding of which are necessary to uphold the judgment. The doctrine of estoppel in this respect is, that it is restricted to facts directly in issue, and does, not extend to all facts which may be in controversy, but which rest in evidence merely. Freeman Judg. 273 ; Dastman v. Sooper, 15 Pick. 276 ; Sage v. McAlpin, 11 Cush. 165; Gray v. Pingry, supra. Thus it has been held that “ if a party attempt on the trial of an action to prove a demand against a defendant and fail, he cannot set it up again in a second action ; but if he can show that he omitted to give any evidence of this demand, he is not concluded from doing so afterwards.” Freeman Judg. 294; Seddon v. Tutop, 6 T. It. 607.</p> <p>Again, this order was not so connected with the other matters in offset in the former suit, that it could not be separated from them, and made the subject-matter of an independent action. It was no part of the transaction out of which the subject-matter of that suit arose, nor out of which the defendant’s matter in offset arose. The rule is that each separate agreement or transaction between parties, will always give rise to one entire and independent cause of action. Freeman Judg. 245.</p> <p>The plaintiff should recover full costs in this suit. The statute (Gen. Sts. c. 125, s. 23,) provides that if a party in an action on book “ shall neglect to present his account against the plaintiff,” &c., he “ shall not recover any costs,” «fee. This case does not come within the provision of that statute.</p>

<p>Ejeotment. Plea, the general issue, and trial by referee, who reported as follows:</p> <p>The land in question comprises about a quarter of an acre, and is so much of five-acre lot No. 96 as lies on the west side of North Avenue in the city of Burlington. ' The plaintiff put in evidence the records of a series of deeds covering the land in dispute, commencing with one from E. T. Englosby to the United States, dated August 24, 1812, and forming a chain of title down to Nathan B. Haswell, in whom the title to the entire lot vested by deed from Heman Allen to Mm, dated April 22, 1844, ho having from March 13,1832, been a tenant in common of the land, by virtue of said deeds, with Heman Allen and others.</p> <p>The plaintiff also introduced a certified copy of a quit-claim deed of the land in question from John Thompson, who was not in the chain of title above mentioned, to Hemy B. Stacy, the plaintiff’s intestate, executed Oct. 10,1845. This deed contained, after a description of the land, the following language: “ Being land which I have occupied without let or hindrance for the past eighteen years.” But no evidence was offered in proof of the truth of this statement, and for-want of such evidence, the referee is unable to find, and does not find, that it is-true.</p> <p>The plaintiff also proved, and- the referee finds, that at the March Term, 1846, of the Chittenden County Court, an action of ejectment for this land was brought by Nathan B-. Haswell against the plaintiff’s intestate, in which a jury trial was had at the October Term, 1846, which resulted in a verdict for the defendant; that the cause was at that term reviewed by the plaintiff Haswell, and continued till the September Term, 1847, when the plaintiff was nonsuited; but no evidence was given as to the- specific ground of defence made by the defendant in the trial, which resulted in the above-mentioned verdict.</p> <p>The plaintiff also put in evidence a certified copy of the record in the town clerk’s office in Burlington, of a levy of an execution in favor of Charles L. Nelson against Henry B. Stacy, made September 17, 1862, and embracing the land in question; also, a deed of the same land from said Nelson to said Stacy, dated April 27,1869 ; and the plaintiff admitted that at the time of the execution and delivery of this deed, the defendants were in adverse possession of the premises. No evidence was-offered to impeach the genuineness of any of the deeds or other records or copies of record offered by the plaintiff, and the referee finds that such deeds were duly executed and delivered, and the execution duly levied, and the officer’s return of the levy duly recorded.</p> <p>From the foregoing evidence the referee finds that at tlie commencement of this action and at the hearing before the referee, the elder and better paper title to the land in question was, and still is, in the heirs of Nathan B. Haswell, and not in the plaintiff, nor the heirs of Henry B. Stacy. But the referee also finds from all the evidence in the cáse, that the possession of the land by Henry B. Stacy, Anson Bostwick, and the defendants, from 1845 to the time of trial before the referee as hereinafter described, was adverse to the claims, and rights of Haswell and his heirs.</p> <p>The referee further finds, that the judgment of Nelson against Stacy was obtained, and the levy of the execution thereon was made, in pursuance of an agreement.between Nelson and Torrey E. Wales ; that this agreement was made by Wales solely in the interest and for the benefit of Stacy, and at Stacy’s request, and the latter’s interest in the matter was known to Nelson at the time, and it was understood between all three of them, that if any money was to be paid to Nelson under that agreement, it was to be furnished by Stacy. Within a few months after the levy, Stacy sent Wales $ 100 to be paid to Nelson under this agreement, and on the 29th of January, 1868, Wales paid it to Nelson and received from him a receipt therefor; and the deed made by Nelson to Stacy April 27, 1869, above referred to, was to carry out Nelson’s above-mentioned agreement.</p> <p>At the date of John Thompson’s deed to Stacy, October 10, 1845, Thompson was in possession of the land; and from that time forward Stacy continued in the personal occupancy of the land until the spring of 1848, when he verbally leased it to Anson Bostwick at a small rent, and thereupon, by Stacy’s express consent, and as his tenant, Bostwick entered into the possession of the land, and for every season thereafter, with the exception of those of 1861 and 1862, occupied it until his death, which occurred in April, 1865. This occupation consisted in cultivating the ground and enclosing the land- with a fence, which, as it used to be stolen during almost every winter, 'he was obliged to repair in 'the spring. As late as 1854, Anson Bostwick admitted to one of the witnesses that Stacy owned the land, and that he had hired it of him.</p> <p>It did not appear, and the referee does not find, that Bostwick ever paid Stacy any rent, notwithstanding he had agreed to do so, or that Stacy ever asked him for any; but the referee does not find that Bostwick ever claimed to Stacy, or in any way that came to Stacy’s'knowledge, that Stacy did not own the land, or that he did. The defendants offered to show that Bostwick,’ in conversation with members of his family, but not in Stacy’s presence, nor in any way that ever came to Stacy’s knowledge, during his possession of the land, declared that he held it adversely to Stacy; but the referee rejected the testimony.</p> <p>The land was.entirely uncultivated in the year 1862, and Bost-wick did no ostensible act of possession or occupancy thereof during that year, and the fences were not repaired as usual, but the land was entirely vacant, and lay open as a common, together with the adjacent land. Neither is the referee able from the testimony to find that Bostwick exercised any acts of ownership or possession of the land in the year 1861, nor, positively, that he did not.</p> <p>After Anson Bostwick’s death, the defendants (Oscar E. Bost-wick'being his son, and Thompson his son-in-law), claiming that the land belonged to Anson Bostwick at the time of his decease, by virtue of fifteen years adverse possession on his part, continued in possession thereof down to the commencement of this suit, Sept. 11, 1872, as the property, and in behalf, of Anson Bost-wick’s heirs ; and their possession under that claim and in that relation, has continued ever since ; but in one of the years between 1865 and 1872 — the referee cannot find what particular year it was — no dominion was exercised by them over the lot, except the cutting and removing of a small quantity of turf therefrom by the husband of one of Anson Bostwick’s daughters, by their authority and consent.</p> <p>It did not appear to whom previous to 1861 the land was assessed, nor whether it was assessed to any one, nor whether any one paid the taxes thereon. In 1861, at the request of Henry B. Stacy, who was about to go to Russia, where he remained until 1868, Carolus Noyes, who had the charge and trust of the land adjoining this piece on all sides but the highway, had the land in question assessed to himself, and paid the taxes thereon for Stacy’s benefit till 1870, when the defendant Thompson requested the assessors to place the land in his list, which they accordingly did, and he has ever since paid the taxes thereon.</p> <p>In 1867, Wales, who was then acting as Stacy’s agent in respect to this land, the latter being then in Russia, learned from the wife of defendant Thompson that the heirs of Anson Bost-wick claimed that he had previous to his death obtained title to the land by adverse possession, and that the heirs then held it under that claim ; and the referee does not find that previous to this time, Stacy, or any one acting for him, had learned that Anson Bostwick’s possession was claimed to be adverse to Stacy’s rights. Stacy died in the spring of 1869, and the plaintiff was duly appointed his-administratrix, and is still acting in that capacity.</p> <p>The defendants introduced no evidence bearing upon the paper or record title of the laud, but confined themselves entirely to testimony, which, they claimed, tended to show adverse possession on the part of Anson Bostwiek, and the defendants as his heirs, for more than fifteen years previous to the commencement of this action.</p> <p>If, upon the foregoing facts, as matter of law, the superiority of the paper title of Haswell’s heirs over that of the plaintiff, is not overcome and defeated to the aid of the plaintiff by the fact that Stacy’s possession and Anson Bostwick’s possession, initiated, continued, and interrupted as above stated, and the possession of the defendants, were all adverse to Haswell and his heirs, and in addition thereto, if in view of the manner in which Anson Bost-wick’s possession commenced and continued, the defendants arc entitled to dispute the title of Stacy, the inferiority of which to that of Haswell’s heirs, if proved at all, was proved by the evidence introduced by the plaintiff herself, then the referee decides that the defendants are entitled to recover their costs. So also, if, as matter of law, the plaintiff is not entitled to rely upon the deed from Nelson to Stacy in establishing her title, for the reason that at the time of its execution and delivery the defendants were in adverse possession of the land, then the referee decides that the defendants are entitled to recover their costs. And these questions of law the referee refers to the court. But in all other aspects of the case, the referee is of opinion that the plaintiff should recover, not only the seisin and peaceable possession of the land in question, but also the mesne profits thereof, which he finds to be $11.16, and her costs.</p> <p>The court, at the September Term, 1875, Pierpoint, Oh. J., presiding, decided that the declarations of said Anson Bostwick, that he held the demanded premises adversely to Stacy, were properly excluded by the referee, and rendered judgment on the report, pro forma, for the plaintiff; to which the defendants excepted.</p> <p>The declarations of Anson Bostwick as to the manner in which he occupied this land,’ were improperly excluded. They were made while he was in possession and occupation of the land, and were against his own interest, or certainly they had no tendency in his favor. By his possession and occupation of this land, he was at law presumptively the owner of it, and a declaration that he occupied it adversely to Stacy, was equivalent to saying that Stacy was the owner of it, and that he had no title to it at all.</p> <p>Declarations by a party in possession of real estate, against interest, tending to cut down or limit one’s title to the same, are always admissible in evidence. This is a well-settled rule of evidence. 1 Phil. Ev. 805 ; Doe d. Human v. Pettett, 5 B. & A. 223 ; Peaceable v. Watson, 4 Taunt. 16. It has been held in some cases that the declarations of a party while in possession are admissible, even though not made against the interest of the party at all. 1 Phil. Ev. 295 ; Baker v. B,ay, 2 B,uss. 67.</p> <p>Upon the facts found in the report, judgment should be rendered for the defendants. From all the facts, it appears that neither Stacy nor his heirs had any record title to the land in question, nor any title by adverse possession. It is a settled rule of law in actions of ejectment, that the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of the title of the defendants. Adams Eject. 32 ; Broome’s Legal Max. 455, note ; Lane v. Reynard, 2 S. & R. 64. And if a defendant in possession can answer the case that is made out by the plaintiff, by showing a better title to the property in some third party, it will be a sufficient defence. Adams Eject. 32; 1 Swift Dig. 509.</p> <p>The record title of Haswell is in all respects perfect and complete. In fact, it is found that the heirs of- Stacy have no record title of value at all, as the quitclaim deed from Thompson to Stacy in 1845 is worthless, as it is not found that Thompson had any title at all at the time of the giving of that deed. And at the time of the deed from Nelson to Stacy in 1869, the defendants were in adverse possession of the lands; hence that deed conveyed no title. Gen. Sts. c. 65, s. 26 ; 21 Yt. 472.</p> <p>It further appears that all the evidence of this record title in the heirs of Haswell, was introduced by the plaintiff herself. Such a state of facts being proved by the plaintiff, the plaintiff, whose only claim of title is by virtue of an adverse possession, is not entitled to recover against the defendants who are in actual possession. The defendants are not estopped from taking advantage of the fact of this record title outstanding in a third party under such circumstances. . White v. Wheaton, 16 Conn. 565.</p> <p>Again, the referee has found, not only that Stacy’s heirs had no record title to the land in question, but he has not found that they had any title to it by adverse possession. The rule of law is, that when a plaintiff in ejectment claims title to the land by adverse possession, it is for the plaintiff to prove — not leave it to be inferred — that he has been in possession of the land for a period of full fifteen years, and that this-possession has been of such a character in all necessary respects as to be an adverse possession.</p> <p>In brief, to entitle a plaintiff in ejectment to recover upon the strength of a title by adverse possession, it is to be found as a fact affirmatively in favor of the plaintiff, that he has a legal title by adverse possession. Hapgood v. Burt, 4 Vt. 155. Such fact is not found in this report.</p> <p>The possession of Thompson had undoubtedly ripened into a perfect title, as the paper title referred to in the report showed the land in Haswell, and the ejectment suit terminated adversely to him. A recovery can be had by the plaintiff in this case (unless the defendants succeed in proving title by adverse possession), upon the authority of the case of Perkins v. Blood, 86 Vt. 278; as the defendants cannot set up title in Haswell or his heirs against a prior actual possession not apparently wrongful, as they do not connect themselves with, the Haswell title. Russell v. Brooks, 27 Vt. 640; Perry v. Whipple, 38 Vt. 278; Tyler Eject. 85. The plaintiff’s intestate acquired a perfect title to the premises in question by his deed from Thompson, and a continuous adverse possession by himself and tenant until the year 1861. Hodges v. Hddy, 41 Vt. 485. And acquired “all the title of the true owner (Haswell), precisely as if he had a deed from him.” Hughes v. Graves, 39 Vt. 359. A tenant cannot dispute the title of his landlord. Greeno v. Munson $ Munson, 9 Vt. 37 ; Tuttle v. Reynolds, 1 Vt. 80 ; Lord v. Bigelow, 8 Vt. 445 ; Tyler Eject. 874. The referee finds that Stacy, being in possession of the land under the deed from Thompson, leased it to Anson Bost-wick, under whom the defendants claim. Bostwick’s occupation, therefore, commenced in a tenancy,' and until he gave distinct notice to Stacy that he would no longer hold under him, he could not hold adversely to Stacy or his heirs. No such notice is found by the referee to have been given until the year 1867, and the presumption is that the tenancy existed until that time. Abbott v. Pratt, 16 Vt.-626; Pierce v. Brown, 24 Vt. 165; Ripley v. Yale, 18 Vt. 220 ; Sherman v. The Champlain Tr. Co. 31 Vt. 162 ; Hall v. Dewey, 10 Vt. 593 ; AÜmr. of North v. Barnum, 10 Vt. 220; Blake v. Hoive, 1 Aik. 306. Where the vendee of land who failed to complete the purchase so as to be entitled to a deed, set up a claim of title in himself — held, it could not affect the vendor until notice was brought home to him. Robinson v. Sher-win, 36 Vt. 69 ; Tyler Eject. 146, 918.</p> <p>The deed from Nelson to Stacy was valid notwithstanding the adverse possession of the defendants, as he held the land in trust for Stacy. Farnsworth v. Converse, 1 D. Chip. 139 ; Mitchell v. Stevens, 1 Aik. 16; Aláis v. Burdick, 8 Vt. 21; Appleton v. Bdson, 8 Vt. 239; Converses. Searls, 10 Vt. 578.</p> <p>The books fully recognize jfie doctrine that adverse possession must be continuous, and the case shows that no one occupied the land in question in 1861; therefore the defendants fail in their claim of adverse possession.</p> <p>The tenancy of Bostwick having been shown, and he and his heirs being estopped from denying his landlord’s title until notice to Stacy, the referee properly excluded his declarations of adverse holding.</p>

<p>Assumpsit upon a promissory note dated December 24, 1867, payable to the plaintiff or bearer, in one year from date, and signed by the defendants. Plea, the Statute of Limitations. Trial by the court, September Term, 1875, Eoyoe, J., presiding. This suit was commenced on December 24, 1874. Judgment for the plaintiff, and exceptions by the defendants.</p> <p>The only .question in this case is, when did the Statute of Limitations begin to run ? Did it begin to run the day the note fell due, December 24, 1868, or not till the day following, December 25, 1868 ? If, as we claim, the statute began to run December 24, 1868, then it is a bar to the action, which was not commenced till December 24, 1874, the full term of six years having expired. The statute begins to run when the cause of action accrues; and the cause accrues with reference to a promissory note, when the note falls due. 2 Parsons Notes and Bills, 689, 640 ; Story Prom. Notes, 277, and notes ; Staples v. Franklin Bank, 1 Met. 43; Churchy. Clark, 21 Pick. 310; Whitewell v. Brigham, 19 Pick. 117 ; Crofoot v. Moore, 4 Yt. 204 ; Grafton Bank v. Boe, 19 Vt. 463 ; Harrington v. Rathbone, 11 Yt. 58 ; Angelí Lim. 90.</p> <p>The period of limitation begins to run on a promissory note payable on demand, the date of the note. On this the authorities are unanimous, and the decisions uniform. A fortiori, on note payable one year from date, as in this case, the statute begins to run the day it falls due. 2 Parsons Notes & Bills, 630, 643; Angelí Lim. 93; Kingsbury v. Butler, 4 Yt. 458. Negotiable bills and notes are uniformly treated as an exception to the general rule that a debtor has till the last hour of the day on which his debt falls due to pay it. Story Prom. Notes, 281. But, if it should be held that a demand is necessary to make that exception in the case of a promissory note, then there is a presumption arising from the lapse of time that a demand was made. Kings-bury v. Butler, supra.</p> <p>The note in suit was dated Dec. 24, 1867, payable in one year from date. It therefore fell due Dec. 24, 1868. It being made payable generally, no action could have been commenced thereon until after midnight of the day on which it fell due. There are no parts of days in law. The plaintiff, therefore, could bring his action at any time within six years “ next after the cause of action shall accrue.” The action having been commenced on the 24th of December, 1874, the six years would not expire until midnight of that day. In computing time under the statute, the first day is to be excluded, and the last day included. Smith v. Cassity, 9 B. Monroe, 496 ; Byles Bills, 516, note 3; Story Prom. Notes, s. 201; Chit. Bills, 403, 404, 405 ; Blanchard v. Hilliard, 11 Mass. 85; Henry v. Jones, 8 Mass. 453.</p> <p>The case of Presbrey v. Williams, 15 Mass. 193, is not in conflict .with the above. That was a case of a new promise, and the court held that the day the promise was made would be included. That case approves of the decisions in Massachusetts on the question raised in this case, namely, that the action would be in season if brought on the 24th of December, 1874.</p>

<p>Officer. Trespasser ab initio. Damages.</p> <p>If an officer advertises property other than hay, grain, &c., taken in execution, at one place, for sale at another place, and sells it accordingly, he thereby becomes a trespasser ab initio, and liable for the full value of the property, notwithstanding he applies the proceeds of the sale upon the execution.</p>

TRESPASS qua. clau.' Pleas, the general issue, and justification as contractor under the St. Albans Aqueduct Company, a corporation chartered by the legislature for the purpose of supplying the villagé of St. Albans with water. Replication, de injuria. Trial by the court, April Term, 1875, Royce, J., presiding.

<p> Parol Evidence to Vary a Peed. Construction of Peed. </p> <p>when a general description in a grant is followed by a particular description, the particular description must govern; and if parol evidence of the situation, surroundings, and appellations of the subject of the grant at the time of its execution, would tend to make the general description comprehend more than the particular description, it would tend to contradict the deed in its true construction, and be inadmissible.</p> <p>In this case it was held that the particular description did not embrace the demanded premises, and parol evidence to bring them within the general description, was excluded.</p>

<p> Plan. Declarations against Interest. Interruption of Adverse Possession. </p> <p>A plan of two adjoining lots, tlie location of the division line of which was in dispute, was made by one of plaintiff’s attorneys, not a surveyor, and not from any survey of the lots. The plaintiff testified, and was not contradicted, that the plan was “ all right, and located the land correctly, as near as he could see.” Held, that said plan might properly be used by plaintiff’s counsel, for the purpose of explaining to the jury what plaintiff claimed in relation to the location of said lots, and of the division line thereof, and that the jury might take the plan with them to the jury room.</p> <p>The declarations of one in possession of real or personal property, qualifying or limiting the extent or character of his possession, are always admissible against those claiming under him. Thus, deeds from one under whom defendants claimed, to third persons, were held admissible against defendants, to show where the grantor understood the division line in dispute to be.</p> <p>Plaintiff’s testimony tended to show, that a certain fence was built by the grantors of the parties in the summer of 1856, as a division fence, and that plaintiff and his grantor had been in adverse possession to the fence a period of more than fifteen years. It was conceded that in April, 1871, defendants cut a tree on plaintiff’s side of the fence, and that soon after, a dispute arose in regard to the location of tlie division line; that the parties thereupon procured separate surveys of the line, which did not agree, and that each party was dissatisfied with the survey of the other, and that no agreement was made upon any line — the plaintiff all the time claiming that the fence was the trap line, and the defendants, that the true line was some rods south thereof. -Held, that all that could he fairly claimed from the facts was, that they tended to show that plaintiff’s possession had heen interrupted, and that it was properly submitted to the jury to find whether plaintiff had acquired title up to the fence, by adverse possession.</p>

<p> Greneral Assumpsit </p> <p>It is well settled in this State, that where there is an agreement to give time for payment upon the debtor’s giving a note with surety, if such note is not given, the creditor may sue at onee on book or in general assumpsit. Thus, where the agreement was that defendant should pay by giving plaintiffs a note to bo approved by them, payable in one year; and such note was not given on request, it was held that the agreement called for a note with surety, and that plaintiffs might sue at once in general assumpsit, for the recovery of their demand.</p> <p>A different rule is said to prevail where the debtor is only required to give his own note.</p>

Case for ejecting plaintiff from defendants’ cars. Pleas, the general issue and a special plea in bar. Trial by jury, April Term, 1875, Royce, J., presiding. Defendants, as receivers and managers, were operating the Vermont Central and the Vermont & Canada Rail Roads.

Appeal by the plaintiff from a -decree of the Probate Court whereby one tenth of the personal estate of the intestate Abel Houghton, was distributed to Frederick Houghton. The intestate-died in September, 1873, leaving three children surviving him, to wit, Mary H. Sawyer, F. J. Houghton, and R. S. Hough-ton. Two of his children died before he did, to wit, George F. Houghton, father of Alfred S. Houghton, plaintiff’s ward, and E. S. Houghton.

<p> Consideration? Contract. Trustee. </p> <p>Mutual and concurrent promises afford sufficient legal consideration for tlie support of eacli other.</p> <p>Plaintiff and defendant each held a mortgage upon the land of L., a bankrupt in Canada, that -was about to be sold at public auction by I/s assignee in bankruptcy. Thereupon, the parties, to prevent a sacrifice of the property, and to realize rvhat they could therefrom to apply upon their mortgages, agreed that if either should bid upon it at such sale, and it should be struck off to them, the purchaser should sell it at private sale, and apply the proceeds thereof, first, in payment of defendant’s prior mortgage, and secondly, in payment of plaintiff’s subsequent mortgage, if said mortgages should be held valid ; otherwise, to be divided between them in a certain manner named. Defendant bid off the property, and sold it at private sale. Held, that said agreement was not void as against public policy, and that the mutual promises therein contained, afforded a sufficient legal consideration for its support.</p> <p>In conveying said land sold at private sale as aforesaid, the scrivener made a mistake in the deed, whereby more land was included than was intended ; and defendant was compelled to institute proceedings against his grantee, to reform the deed, and therein incurred great expense. The referee found that said mistake was made in consequence of defendant’s carelessness. Held, that in accounting for the proceeds of said sale, defendant was not entitled to be reimbursed his expenses in said proceedings.</p>

Assumpsit. Plea, the general issue, and notice of set-off, and other special matter. Trial by jury, and verdict for plaintiff, April Term, 1875, Royce, J., presiding.

<p>Assumpsit for money loaned. Trial by jury, April Term, 1875, Royce, J., presiding.</p> <p>Plaintiff sought to recover $300, claimed to have been loaned by plaintiff to defendant Lois Thompson, in November, 1867, at which time said Lois, then Lois Post, was sole and unmarried, and owner of a store in- Richford, called “The Farmers’ Exchange, J. P. Cutting, Agent.”</p> <p>Plaintiff claimed, and his evidence tended to show, that said loan was negotiated by said Cutting, the authorized agent of said Lois, and that said Cutting borrowed the money for, and on the credit of, said Lois, and that the same was used in her busiuoss. It appeared that in May, 1867, said Lois set up a store in Rich-ford, with said Cutting as agent, and that it was kept in operation till early the next year, under the agency of said Cutting, who, as such agent, bought and sold the goods, and managed and carried on the business of the store. A written agreement between said Lois and Cutting, concerning said store, business, and agency, was put in evidence, dated May 6, 1867, whereby it was stipulated that,</p> <p>She will furnish capital, or authorize him to employ or obtain credit on her name and responsibility, for the purchase of goods to supply said store and businesh as aforesaid, to an amount not exceeding $4000 in all; that all such purchases shall be made in her name, and the goods shall be billed in her name, and forwarded directly to her, but that the entire purchases, including purchases in cash down, and credit, shall not exceed said $4000, unless by special consent hereafter given. * * * That while acting within the limits hereinbefore mentioned, as agent, and to the extent of capital employed in the purchases aforesaid, and the legal and proper transactions of said business, and to no other or further extent, the acts of her agent shall be binding upon her. * * * She shall not be bound for any purchases or liabilities exceeding said $4000, unless by special consent hereafter. * * * The party of the second part hereby agrees and binds himself to act as agent for the said party of the first part, in purchasing goods and selling same in said store, to the best of his ability, * * * to make no purchases or Habilites on her account, exceeding $4000, unless by her direction and consent.</p> <p>Plaintiff’s evidence also tended to show, that Cutting borrowed the money in question, to pay debts due from Mrs. Post for goods to supply said store, and that Cutting so informed plaintiff at the time of the loan, and that Cutting used the money in paying such debts ; that $100 of said loan was, by Cutting’s order, paid by plaintiff to the firm of Holmes & Ross, on account of her indebtedness to them ; that said firm, from May to November, 1867, had large dealings with said Cutting, agent as aforesaid, consisting of goods sold and furnished, and money and checks paid out and loaned for the business of said store ; that after said store was closed on March 10, 1868, said Cutting, acting as such agent, made a settlement with Holmes & Ross, and that for the balance found duo on such settlement, Mrs. Post gave her note, and afterwards paid it; that the $ 100 received of plaintiff by Holmes & Ross, was credited upon their books to Mrs. Post, and included in the settlement.</p> <p>The plaintiff’s evidence also tended to show, that said Cutting had in several instances borrowed money of other parties, with the knowledge and approval of Mrs. Post, to be used in business of said store, and that he was authorized by her to make this loan of plaintiff; that subsequent to the making thereof, she promised plaintiff, on several occasions, to repay it.</p> <p>Defendant’s evidence tended to show, that said Cutting was not authorized to borrow any money upon her account, and that she had no knowledge that ho had ever borrowed any upon her ac- ' count, until the claim made by plaintiff in this suit: that none of said money was ever used in her business, nor to pay any of her debts; that the $100 paid'to Holmes & Ross on Cutting’s order, was not paid on her account, but was money borrowed by said Cutting for his own private use, and was paid upon his own private account.</p> <p>The defendant’s evidence further tended to show, that she had no knowledge of the items of debit and credit upon the books of Holmes & Ross at the time of said settlement, an'd that she never promised to pay plaintiff’s debt, and that prior to giving the note to Holmes & Ross, she had no knowledge of any dealings witli them.</p> <p>Plaintiff requested the court to charge the jury, that said written agreement conferred authority on Cutting to borrow money on the credit of Mrs. Post, and to make this loan of plaintiff. Rut the court refused to charge as requested, but charged that said agreement did not confer such authority ; to which plaintiff excepted.</p> <p>Plaintiff also requested the court to charge the jury, that if they found that Mrs. Post settled the claim of Holmes & Eoss in which said $100 was credited, to that extent, at 'least, she was bound ; that if she authorized her agent to settle the account, she was holden to the same extent that she would be if she settled it herself. The court refused to so charge, but charged that if the jury found she had the benefit of the money in said settlement, and that it went into her business, she would be holden to pay it, provided they find she afterwards promised to pay it. To which refusal and charge, the plaintiff excepted.</p> <p>The defendant offered the former wife'of the said Cutting, and who was living with him as his wife during the time he was acting as the agent of Mrs. Post, as a witness. The plaintiff seasonably objected to her competency ; but it appearing that she had obtained a divorce from said Cutting, the court overruled the objection, and permitted her to testifiy, but did not permit her to testify to any conversation or communication between herself and husband. To her admission as a witness, plaintiff excepted.</p> <p>The court charged the jury fully upon all the other grounds involved in the case.</p> <p>-, for plaintiff.</p> <p>Under the provisions of their agreement, Cutting was authorized to borrow money on Mrs. Post’s credit, for the purchase of goods, or to pay for goods already purchased. The agreement constituted Cutting a general agent, with power to buy goods on the credit of his principal, and t.o borrow money on her credit, to use her credit as might be necessary, in or to keep the store supplied with goods. The term, “for the purchase of goods,” &c., used in said agreement, was not intended to limit the use of her credit to. the mere act of buying goods; but it expreses a general purpose for which her credit was to be used. 16 Vt. 95; 19 Vt. 202.,</p> <p>If Mrs. Post, with full knowledge of the Holmes & Eoss account, and the $100 item, and of such facts in connection with the loan as tbe plaintiff’s evidence tended to show, bad settled that account and taken tbe benefit of the $100, she would be bolden to repay that sum to tbe plaintiff, without a subsequent promise to that effect. 30 Yt. 560; 42 Yt. 432; 43 Vt. 502. But her agent did have that knowledge, and if he settled that account, and took the benefit of the $100 for his principal, she is bound, the same as if these acts of the agent were her own, to repay the plaintiff that sum of $100; and a subsequent promise of repayment would not be necesary, to enable the plaintiff to recover that sum in this action.</p> <p>Until the jury found to the contrary, the principal would be charged with knowledge of the nature of the account, and its items, and especially of all facts within the knowledge of the agent relating to the subject. Story Part. 583, 593 ; 43 Yt. 249 and 403. The jury should have, at least, been told that unless such knowledge on the .part of Mrs. Post was negatived by their finding, she would be holden in this action for the $100 if she had the benefit of it in the settlement. 21 Yt. 129. If Mrs. Post, or her agent, with actual or presumptive knowledge, took the benefit of the $100 in the manner claimed, an equity arises in favor of the plaintiff, from which the law will infer a promise of repayment.</p> <p>The written contract between Mrs. Thompson and Cutting, did not confer upon him any authority to borrow money upon her credit. This contract should receive a strict interpretation, and the authority conferred by it is not to be extended beyond that which is given in terms, or which is necessary and proper for car-" rying the authority so given into effect. Story Agency, ss. 68, 69, 72, 76, 77, 83 ; Cochrane v. Whipple, 33 Yt. 169 ; Webber v. Williams College, 23 Pick. 302.</p> <p>Plaintiff’s request to charge with reference to the one hundred dollars claimed to have been credited in Mrs. Post’s account with Holmes & Ross, was properly disregarded. The theory of the request is, that the mere settlement of Holmes & Ross’ account, was sufficient to charge her with knowledge of the credit on their books and the fact that it was borrowed of plaintiff; but such position cannot be maintained upon reason or authority. Dunlap’s Paloy Agency, ss. 171, 172 ; Story Agency, s. 263, notes 1 & 2 ; Barton Go. v. Pittsford, 44 Vt. 371; Woodward $ Per-Jcins v. Barnes, 43 Yt. 330 ; TJnderwood v. Hart, 23 Yt. 120 ; Bell v. Cummings, 3 Pet. 81 ; Grant v. Beard, 60 N. H. 129 ; Bank of Orleans y. Passett, 42 Yt. 432; Seymour v. Wickoff., 10 N. Y. 224.</p> <p>The former wife of Cutting was a competent witness for the purpose for which she was improved, and to the same extent that Cutting himself would be permitted to testify. Williams y. Baldwin, 7 Yt. 503 ; Bdgell v. Bennett Lowell, 7 Yt. 534 ; Qoffin v. Jones, 13 Pick. 445 ; Smith y. Potter, 27 Yt. 304 : 1 Greenl. Ev. ss. 338, 342.</p>

This was a petition by the state’s attorney of Franklin County, upon the relation of John B. Page, for leave to file Htn information in the nature of a writ of quo warranto against the respondents… Held: and no inspectors appointed, the appointment of inspectors and the conduct of the election, devolved upon the constituent voting body, the stockholders. Commonwealth v. Wodper, 3 S. & R. 29; Ang. & Ames Corp. s. 351.

Joyal to the appellee, who claimed said estate upon the ground that she was his lawful widow. Plea, general issue, trial by jury and verdict for appellee, April Term, 1874, Royce, J. presiding. By her maiden name of Margaret Pulson, the appellee was lawfully married to one George Edwards, at High gate, Vermont, on the 11th of August, 1842. She was offered as a witness on her own behalf.

Assumpsit on a promissory note for $100, payable to Edward Conklin, or bearer, in 104 days from date, and signed by defendant. Plea, the general issue, and trial by the court, September Term, 1875, Royce, J., presiding. Said note was given for a patent-right sold by Conklin to defendant at St. Albans, and the words, “given for a patent-right,” were not inserted therein, as required by statute.

Account. The auditor reported as follows : I find due to the plaintiff from defendant (computing interest on the balance to the 17th Nov. 1874), the sum of $391.66, subject to the opinion of the court upon the followinii: facts : In the spring of 1858, plaintiff and defendant engaged in the purchase and sale of cattle in partnership. Their purchases, including all expenses, amounted to 11,541.72. The gross sales amounted to $1,669.77. Their profits were $128.05.

<p>Appeal from a decree of the probate court directing the plaintiff, administrator of Hiram M. Whitcomb’s estate, to pay the debts allowed against said estate by a certain time limited. The case fully appears from the opinion. The court, at the April Term, 1875, Royce, J., presiding, affirmed the decree of the Probate Court. Exceptions by plaintiff.</p> <p>The case shows that appellee’s claim was allowed by only one commissioner, and that the report was signed by only one commissioner, the other commissioner having died soon after the first sitting, and before the making and filing of the pretended report. This is not a compliance with the statute. Gen. Sts. p. 400, ss. 1, 3, 5, 11, p.' 405, s. 38, p. 421, s. 15.</p> <p>Such an allowance and report by one commissioner is illegal and void. The court cannot assume that the commissioners both acted, and especially from proceedings since the appeal. Hodges v. Thatcher, 23 Vt. 455 ; George v. School District, 6 Met, 511; Neioell v. Exr. of Keith, 11 Vfc. 214; Towne v. Fagacth, 6 Máás. 46 ; 2 Kent Com. 633, n.</p> <p>The commissioners constitute a tribunal, independent of the Probate Court, with distinct and well-defined jurisdiction, powers, and duties, created, not by the Probate Court, but by statute. Hendrick v. Cleveland, 2 Yt. 329 ; Hodges v. Thatcher, supra.</p> <p>The decree of the Probate Court does not help the matter. That court has exceeded its powers “ in approving and allowing” an illegal, invalid proceeding of the commissioner. Hendrick v. Cleveland, supra; Smith v. Rice, 11 Mass. 407 ; Hunt v. Hap-good, 4 Mass. 117 ; Sumner v. Parker, 7 Mass. 79. The only power the Probate Court has, is, to determine, in its discretion, whether the report presented is the judgment of the commissioners. Hodges v. Thatcher, supra; Stoddard v. Moulthorp, 9 Conn. 502; Peck v. Sturgess, 11 Conn. 420 ; Atherton v. Plagg, 2 D. Chip. 69.</p> <p>The appellant could not take an appeal from the order of the Probate Court'accepting and allowing the report, as there was no report to appeal from.</p> <p>The decree of the Probate Court, unappealed from, accepting and ordering to be recorded the report of the commissioners, is conclusive, and cannot be attacked collaterally. Judge of Prolate v. Filmore, 1 D. Chip. 420 ; Lawrence v. Englesly, 24 Yt. 43 ; Richardson v. Estate of Merrill, 32 Yt. 27 ; Timothy v. Farr, 42 Yt. 43 ; Sherman v. Alell, 46 Yt. 547.</p> <p>Any and alltí objections now made to said report, and to the regularity of the proceedings, were known to plaintiff at the time of the acceptance of said report, and should have been then urged. Ex parte Kellogg, 6 Yt. 509 ; Parkhurst v. Sumner, 23 Vt. 538 ; Lawrence v. Englesly, supra.</p> <p>The estate was fully and finally settled by plaintiff upon the basis of said report, except as to the payment of the claim of defendant; and the rights of all parties in interest have become vested by the further conclusive decree of the Probate Court, un-appealed from, accepting the plaintiff’s final account as administrator. Stone v. Peasley, 28 Vt. 716.</p> <p>The records show the estate to have been solvent, and that the plaintiff, in his final account, charged, and was credited, with all claims allowed against the estate, including the claim of defendant. Ho is estopped, therefore, from objecting to the order appealed from..</p>

<p> Justice of the Peace. Trover. Practice. </p> <p>A justice oí the peace has the same right to the custody of papers and exhibits filed as evidence in a case on trial before him, that any other court of record has. He can retain them as long as they are necessary for his consideration in determining the issues upon which they are evidence. AVlien that end is accomplished, the full purpose for which they were introduced, and for which the party introducing them surrendered them into the custody' of the court, has been accomplished ; and thereafter the court has no more right to retain them from the owner, than any bailee would have after the bailment is terminated by its own limitation. Thus, -when receipts and the leaf of an account book were used in evidence before a justice on the question of payment, the justice was held liable in trover for not delivering them on demand made after the rendition of final judgment in the case,</p> <p>when the evidence is not stated in the exceptions, the Supreme Court will not look into the record, to see if error has intervened upon a point not excepted to ; but when the facts are before the court as upon the report of an auditor or referee, then will it look into the whole record, and, if error has intervened upon a point excepted to, render such a judgment as the court below ought to have rendered.</p>

Soire FACIAS against the defendant as bail for one Sears on a writ in an action of assumpsit returnable before a justice, and appealed to the County Court. It appeared that the copies of appeal first filed in the County Court, and on which judgment was rendered against said Sears, did not show that the writ run against the body of said Sears.

Assumpsit. Pleas, the general issue and offset. Trial by jury, March Term, 1874, WheeleR, J., presiding, and verdict for the plaintiff. Held: that under the contract, defendant was not entitled to pay for any of the wood until delivery of the whole, and refused to charge as requested, and on this subject charged that plaintiff was entitled to delivery of the entire 100 cords within the time specified in the contract, without making payment until the whole should be…

Case for negligence of defendant’s town clerk. Plea, the general issue, and trial by the court in both cases, March Term, 1874, WheeleR, J., presiding. It appeared that Burchard, Wilson The facts in Moreau’s case were substantially like those stated, except that he recovered judgment at the-March Term, 1873, for $549.37, damages and costs, and did not levy execution upon said laud.

Assumpsit on a policy of insurance issued by defendant, insuring the life of George 0. Hathaway for his own benefit.

<p> Payment. Promissory Note Given for Antecedent Debt. </p> <p>C. gave plaintiff his note for interest due on other notes that plaintiff held against him, some of which were signed by defendant as surety, and agreed to secure the same by mortgage. There was no agreement whether said note should operate as payment of the interest or not, but plaintiff took it, and indorsed the interest as paid on the other notes, relying on C’s promise to furnish security, which he never did. Subsequently, plaintiff and C. agreed that said note should not operate as payment of the interest, and C. took it up, and wrote a cancellation upon the original notes of the indorsements of interest thereon. Held, that said note did not operate as payment of the interest.</p>

Case for deceit in the sale of a patent-right for a self-lighting lamp, for Rutland county. Plea, the general issue, and trial by jury, September Term, 1874, Wheeler, J., presiding.

Assumpsit on a promissory note of the.tenor following: BRAndon, May 8, 1869. Six months from date, for value received, we promise to pay G. M. Kidder, or order, five hundred dollars, with ten per cent, interest, — the money to apply on rakes. Andrew J. Ketchum. Curtis 0. Luoe. G; M. Kidder. Indorsed: Pay to E. J. Ormsbee, or order. G. M. Kidder. Plea, the general issue. Trial by jury, March Term, 1874, Wheeler, J. presiding. Defendant Kidder made no defence.

Indictment for the murder of one Anna Freeze, on the 9th of June, 1874, at Rutland. Plea, not guilty, and trial by jury, September Term, 1874, Wheeler, J., presiding.

<p>Assumpsit. Plea, the general issue, and trial by the court, March Term, 1874, Wheeler, J., presiding.</p> <p>Plaintiff is a corporation that sells patent heaters for heating water for steam-engine boilers by exhaust steam. Defendants use a steam engine. Wilcox, president of plaintiff, applied to defendants to have them take one of these heaters and try it, to see if they would purchase it. To induce them to do so, he recommended it highly, said that it would save 25 per cent, of fuel, and could be readily attached to their boiler and tried at small expense. Induced by his recommendations and solicitations, they executed an order and agreement, dated November 1, 1871, whereby they ordered a heater to be shipped to them within thirty days, and agreed to attach the same to their works within sixty days from said date, according to printed directions, with the privilege of using the same thirty days after attached, and if it worked satisfactorily, to pay therefor or return. Plaintiff agreed in writing to furnish said heater on those terms. At. the same time, Wilcox agreed by parol to send the printed directions mentioned in the written agreement, with the heater. On the 19th of said November, plaintiff shipped such a heater as ordered, to the defendants, with printed directions. They received it within the thirty days, but did not receive the directions. The Rutland Marble Company, which uses a steam engine, ordered one of these heaters of plaintiff for trial. Defendants knew of this, and waited to see how that heater worked, before putting in and trying the one sent to them. The one sent to the marble company was attached to the engine and tried, but did not appear to have been attached strictly according to the directions, and did not work well, and was rejected. After the expiration of the sixty days mentioned in the agreement, plaintiff drew on defendants for the agreed price, and notified them. They did not then know how the heater sent to the marble company worked, and wrote plaintiff that they had not found time to set up the heater, but hoped to try it soon. They afterwards learned that the heater tried by the marble company did not work well. They examined the facilities for attaching the one sent to them to their works, and found that it would be considerably more difficult and expensive than Wilcox had represented, and determined not to try it, and did not attach it to their works at all. They wrote to the plaintiff that they should not attach it to their works, nor try it, and that they held it subject to plaintiff’s order. They did not return it to the plaintiff, but have held it subject to plaintiff’s order ever since they so wrote. They never notified plaintiff that they had. not received the directions with the heater.</p> <p>The' court held that upon the facts stated, without reference to the actual value of the heater, the plaintiff was entitled to recover the agreed price, and rendered' judgment accordingly for that price, with interest, to which defendants excepted.</p>

<p>Assumpsit for breach of warranty of a horse. Plea, the' general issue, and trial by jury, September Term, 1875, Wheeler, J., presiding.</p> <p>Plaintiff had' a horse in his possession belonging to defendant that was sick. Plaintiff, who lived in Brandon, on September 14th, wrote defendant, who lived in Boston, informing him that the horse was not well, and asking him how much much money it would take to buy him. The defendant replied by letter that he would take $1500 for the horse just as he then was, and as the plaintiff had written him that the horse was sick, if plaintiff bought him he must take him as he was, and that he might trade with Barnard, by whom defendant sent the horse to plaintiff from Boston for purposes other than sale, and who thereafter had charge of him till he was sold as hereafter stated, and that anything Barnard would do would be all right. The plaintiff thereafter traded for the horse with Barnard at the plaintiff’s stable in Brandon, at the price named, and paid him therefor.</p> <p>Plaintiff’s evidence tended to prove that Barnard, in making the sale, warranted the horse to be sound in every respect, except a slight cold, and that on the 12th day of October, 1873, the horse died at Stockbridge, while on his way from Brandon to attend the races at Bethel, with a disease of the lungs and heart that was of long standing.</p> <p>Defendant’s evidence tended to show that there was no warranty as alleged, and that the horse died with the colic, and had no disease of the heart and lungs other than a cold.</p> <p>. Plaintiff called one Rolfe as a witness, who testified, among other things, that he was at plaintiff’s stable in Brandon, helping take care there, and heard Barnard and plaintiff talk about the trade. Defendant objected to his testifying what the conversation was, The court overruled the objection and admitted the evidence, and the witness testified that he heard Barnard tell plaintiff that he would warrant the horse all right with the exception of a cold that he got on the cars or in the stable; that he heard it at two or three different times ; that Barnard said he wouldn’t be afraid to warrant the horse sound and all right with the exception of a cold. To this the defendant excepted.</p> <p>This case was entered in court at the September Term, 1874, and the defendant not appearing, was defaulted, and the damages were assessed by the clerk, under rules of court. The next March Term thereafter, the default was, upon the motion of the defendant and cause shown, stricken off, and the case brought forward. In assessing the damages without notice to or appearance by the defendant, one Scott, since deceased, was examined as a witness. The plaintiff offered to prove by the clerk before whom the damages were assessed, what Scott.swore toon said hearing, as evidence in the case on this trial, to which the defendant objected. The objection was overruled, and the testimony admitted, to which the defendant excepted. The clerk then testified, without further special objection, to what Scott testified to before him. The testimony of the»clerk was objected to generally, but no special objection was made to any particular part thereof, and he was permitted to read his minutes of Scott’s testimony, without any particular clause or portion thereof being designated as objectionable.</p> <p>Defendant requested the court to charge the jury that if they found defendant wrote plaintiff that he would sell him the horse for |1500, but that if he bought him he must take him just as he then was, with the disease he had upon him, and that he might trade with'Barnard, the defendant was not bound by what Barnard said as to the soundness of the horse, unless it appeared affirmatively that Barnard was specially authorized to make the warranty or representations in question. The court charged that the warranty must have been a part of the contract of salo ; that if plaintiff in buying the horse accepted the terms offered in the letter, without resorting to Barnard except to fix the terms of payment, there was no warranty, and defendant was entitled to a verdict ; but that defendant, by his letter, authorized plaintiff to resort to Barnard as his agent about the trade, and if plaintiff did resort to Barnard as defendant’s agent about it, and Barnard, as a part of the contract of sale, warranted the horse, the defendant was bound by the warranty the same as if he had made it himself. To this defendant excepted.</p> <p>The leading question in this case is as to the construction to be put on the letter of defendant to plaintiff. The court below assumed that this letter authorized plaintiff to resort to Barnard as defendant’s agent about the trade generally, not only as to terms of payment, &c., but to get a warranty of the horse. In this there was error.</p> <p>Barnard was a special agent to negotiate the trade, subject to just the restrictions that the letter fairly imposed. The terms of the letter exclude the idea of a warranty, and of an intention to allow Barnard to warrant. It is an elementary principle of law, that a special agent to sell, restricted from warranting, cannot bind his principal by a warranty, although the restriction is not-known to the buyer. Dunlap’s Paley Agency, 203. This letter amounted to such restriction, and was written to the buyer, so that he had notice of the restriction. It is an old and settled rule, that if the person dealing with the agent, knew or had reason to suppose that his powers were limited, or had such notice as to put him on inquiry, he must run the risk of the principal’s disavowing the act of the agent. Stainer v. Tysen, 3 Hill, 279; Banorgeev. Hovey, 5 Mass. 26. A partícula)' or special agent is one authorized to do one or two special things. 5 Parsons Cont. (5th ed.) 40. Barnard clearly belonged to this class, as distinguished from a general agent, who is one authorized to transact all his principal’s business, or all bis business of some particular kind. If a special agent exceed his authority, the principal is not bound. Admrs. of Shattuck v. Wilder, 6 Yt. 334 ; White v. Langdon, 30 Yt. 602 ; Goodrich v. Tracy, 43 Yt. 320.</p> <p>The most liberal rule upon the question of extent of authority in an agent to be found in any cases is that in Helyear v. Hawke, 5 Esp. 72, and Alexander v. Gibson, 2 Camp. 555, where it was held that a servant entrusted to sell a horse may warrant unless forbidden. In the case at bar we insist that the agent was forbidden, and the plaintiff had notice of the interdiction.</p> <p>It is doubtless true that a general authority to sell carries with it an authority to warrant, but this does not seem to be the rule in case of authority to effect a particular sale. 1 Smith Lead. Cas. (7th ed.) 347 ; Fenn v.• Harrison, 3 Term, 760 ; Pickering v. Busk, 15 East, 38 ; Gibson v. Cult, 7 Johns. 390 ; Nixon v. Hys-erott, 5 Johns. 58; Coleman v. Riches, 16 C. B. 104.</p> <p>The question as to the admissibility of Rolfe’s testimony, turns on the question of Barnard’s authority to warrant, and on the question of time when he warranted, whether at the time of the trade or before. .Dunlap, 256, and notes.</p> <p>The testimony of the clerk as to what Scott swore to on the assessment before him, was inadmissible, on the ground that there was no opportunity for cross-examination of Scott. Warren v. Nichols, 6 Met. 264; Marsh v. Jones, 24 Vt. 380, citing Rex v. Paine, 1 Ld. Raym. 728; s. c. 5 Mod. 163 ; s. c. 2 Salk. 281,417.</p> <p>The first question presented by the bill of exceptions, is as to the admissibility of the evidence of the witness Rolfe.</p> <p>As to this it need only be said that, defendant admitting that he referred plaintiff to Barnard, with the declaration that “he might trade with Barnard, and anything Barnard would do would be all right,” makes Barnard’s declarations to plaintiff in connection with the trade, proper evidence. The application of any rule excluding the evidence of Rolfe, would also exclude the testimony •of plaintiff as to what took place between him and Barnard, although directly referred to Barnard by defendant, for the express purpose of making the trade for the horse.</p> <p>The general proposition that the evidence of a deceased witness given on a former trial of the same cause between the same parties, is admissible and proper, will not be questioned or controverted. We assume that no possible objection is or can be made as to the channel through which the evidence of the deceased witness was reproduced or brought before the court. The clerk was a co-ordinate branch of the same court before whicli the issue in controversy was pending. The testimony of Scott was given in the lawful, usual, and only recognized mode adopted or practiced under the lules of the court, and was originally given in this action, in a regular and necessary proceeding, and was pertinent and proper, and defendant had had due notice of the suit, and that he was not present at the time of the hearing was his own fault or misfortune. It is not necessary that there should have been an actual cross-examination of the witness by the objecting party. The most that is required is, an opportunity to cross-examine ; and in this case, in contemplation of law, there was no want of an opportunity. To exclude the evidence of Scott for want of an actual cross-examination, would have the effect to punish the plaintiff for the fault or misfortune of the defendant, and to award to the defendant a premium for his own negligence and indifference. Glass v. Beach, 5 Vt. 172 ; 1 Greenl. Ev. 189, 190.</p> <p>. The remaining questions grow out of the charge, and the refusal to charge as requested. The condition imposed by defendant in his letter to plaintiff, is modified and enlarged by his declaration that “ he might trade with Barnard, and anything that Barnard would do would be all right.” The plaintiff was justified in the understanding- that he fully recognized Barnard as his agent in every respect in negotiating- the sale. Gunnison v. Bancroft, 11 Vt. 490. Defendant’s language should be construed most strongly against himself. Ohitty Oont. 95, 96. The case as stated shows undoubted authority in Barnard to sell the horse as the agent of defendant; and a general authority to an agent to sell, includes authority to warrant. Bachman v. Charlestown, 40 N. H. 131; Alexander v. Gibson, 2 Camp. 555; Fay Bryant v. Richmond, 43 Vt. -25.</p>

<p>General Assumpsit. Plea, general issue, and trial by court, September Term, 1874, Wheeler, J., presiding.</p> <p>The defendant town, at its annual March meeting in 1872, elected a highway surveyor l'or each of the highway districts Nos. 5, 6, 7, viz : Bates for 6, Horley for 6, and Turner for 7. Neither Bates nor Turner were at said meeting, but Horley was, and made no objection to accepting said office, except as hereafter stated, and was not excused from serving. No notice of their election was given to Bates or Turner by the town clerk, as required by law ; nor were tax-bills ever offered to any of the three. The selectmen elected at said meeting were the plaintiff, Daniel H. Lane, and Luther P. Howe ; and on or about the 15th of May thereafter, when said selectmen met to make tax-bills for highway taxes, the plaintiff said to Howe and Lane, that Bates and Hor-ley would- not serve (and the court finds that both of them so told him), and that Turner was not a very good highway surveyor, and that they might, if they had a mind to, appoint him, Scott, highway surveyor of said three districts. Thereupon said Howe and Lane set a part of district No. 5 to No. 4, and consolidated the remainder of 5, and districts 6 and 7, into one highway district, and made out a tax-bill for said consolidated district, and attached a warrant thereto, directed to the plaintiff as highway surveyor thereof, and gave the same to the plaintiff, but made no other record of the appointment of plaintiff as highway surveyor of said district. The plaintiff accepted said tax-bill, collected a part thereof, and acted as highway surveyor of said consolidated district for the ensuing year ; and during the year he properly expended $105.87 in working the highways and breaking roads in the district covered by his warrant. He collected $35.93 on his tax-bill, and received a town order of $25 of the other two selectmen, to be applied on his claim for such expenditure, and the balance had not been paid him.</p> <p>From the foregoing facts, the court decided that plaintiff was entitled to recover the balance due on said expenditure after deducting the amount received on the tax-bill and the amount of the town order, and rendered judgment for the plaintiff therefor. Defendant excepted. »</p>

<p>Ejectment for land in Pownal “ known as No. 55 in the sixth division.” The ouster was laid on Dec. 2d, 1865 ; the writ dated June 6th, and served Oct. 26th, 1867. Plea, not guilty, and trial by jury, December Term, 1874, Wheeler, J., presiding.</p> <p>Plaintiff, without first showing the existence or loss of the original charter, offered in evidence a paper purporting to be a certified copy from the secretary of state of New Hampshire, under the seal of that state, of the record of the charter of the town of Pownal, dated Jan. 28, 1760; to the admission of which the defendants objected, because they claimed that the official capacity oí the person assuming to act as secretary of state, was not verified or authenticated by the governor, nor by any other proper officer; and also bocauso the paper was not verified or certified in accordance with the laws of the United States. The court, upon inspection of the paper, without other proof, overruled the objections and admitted the paper in evidence, to which defendants excepted. By said copy it appeared that Joel Wells was an original proprietor, and plaintiff offered in evidence a copy from the town clerk’s office of Pownal, of the record of a deed from Joel Wells .to John Hosford, dated May 10, 1760 ; to the admission of which defendants objected, because they claimed that the deed was never recorded; and there was no evidence that it was ever recorded in said town clerk’s office, excejit such as appeared from the certificates thereon. The court, upon inspection of said copy (defendants having stipulated not to object to the admission of said copy on account of any defect in the town clerk’s certificate), and without other evidence, overruled the objection, and admitted the copy; to which defendants excepted. The plaintiff also introduced copies of deeds as follows: John Hosford to David Page, dated June 14, 1786 ; David Page to-Thomas Virgil Page, dated Feb.*12, 1799 ; and Thomas Virgil Page to Josiah Wright, Sen., dated May 6, 1811. Plaintiff also offered the proprietors’ records, to show a sixth division, allotting No. 55 to Joel Wells on June 24, 1797, at a meeting adjourned from time to time from Nov. 23, 1795; to the admission of which defendants objected, because they claimed that there was no sufficient warning of the meeting, and because there was another and prior draft shown by the same records, in which Joel Wells was allotted No. 28. It was claimed by plaintiff that it appeared by the proprietors’ records that after the prior draft, at an adjourned meeting, and before final adjournment, all proceedings in said prior draft were reconsidered, and by vote of the proprietors a new draft was made, in which lot 55 fell to the right of Joel-Wells. There was no proof that any proprietor, or the grantee of any proprietor, ever did or did not claim to hold any land under said prior draft. The court, upon inspection of said proprietors’ records, overruled the objections and admitted the records in evidence; to which defendants excepted. Plaintiff also offered in evidence a copy of the will of said Josiah Wright, Sen., dated Jan. 24,1816, proved on the first Monday in Feb. 1817, by whiclí the demanded premises wore not specifically disposed of, but whereby it was declared that the testator’s debts were to be paid out of the personal property and the wild lands, or other lands not disposed of. Also a copy of the executor’s bond, dated Feb. 12, 1817 ; to which defendants objected, because they claimed that the records did not show that the executor accepted the trust, nor that it was imposed upon him. The court overruled the objection and admitted the evidence ; to which defendants excepted.</p> <p>Plaintiff also offered in evidence a copy of a license to the executor, dated Oct. 11, 1852, to sell the lands of the testator for the payment of debts; and also a copy of the record of the executor’s return of sale, dated Oct. 18, 1852, stating that lot No. 55, sixth division, was sold to Joseph Wright; together with the executor’s deed to Joseph W. Wright, dated April 9, 1853 ; to each of which defendants objected, because they claimed that after the lapse of time shown in this case, the executor had no lien upon this property, or upon any of the estate of the testator. The court overruled the objections, and admitted the papers offered; .to which defendants excepted.</p> <p>It appeared from the cross-examination of witnesses who gave testimony on the part of plaintiff, that before Joseph W. Wright purchased said lot of.said executor, he had seen John Wright’s survey (hereinafter mentioned) on record, and had hoard and knew that said John claimed to own said lot; that one Scovill wanted said Joseph to buy the lauds ; that Joseph told said Sco-vill the lands were cheap, and he must not expect to hold the whole of them; to which Scovill replied, if there were other claimants, and if they were not too high, he would buy them in ; and that this conversation with Scovill had reference to all the lands bought by said Joseph for said Scovill, of which lot 55 was a part.</p> <p>The plaintiff introduced in evidence a copy of deed, John Wright to Josiah Wright, Jr., dated Feb. 6, 1837, of all the in-' terest of the grantor by virtue of will or heirship in the estate of Josiah Wright, Sen., deceased ; a copy of deed, Joseph W. Wright to Horatio Ames, dated March 21,1861; a copy of deed, Horatio Ames to John Campbell, dated April 3, 1861, of an undivided half of lot 55; a de’ed, Horatio Ames to the plaintiff, dated April 3, 1861,-of the other half; and a deed of John Campbell to the plaintiff, dated Nov. 18, 1863 ; thus claiming title to the whole of tHe demanded premises.</p> <p>Plaintiff gave parol evidence tending to show that a witness called by him had a paper purporting to be a plan of the sixth division ; that witness had seen other similar plans, and had known one forty years; and that there was once for many years a plan in the town clerk’s office, called the original plan of the sixth division, agreeing with the witness’s plan, that the town clerk claimed to be his private property, and took away from the office when he ceased to be town clerk ; that witness could not state how long he had had the plan ; that it was drawn from the said plan so in the town clerk’s office ; that the plan thus in the town clerk’s office was used by the witness and others to find sixth-division lots by. Plaintiff offered said paper purporting to be a plan, to which defendants objected, because it was not shown to bo a public paper, nor a copy of a public document. The court overruled the objection, and admitted the paper for the purpose of proving the contents of the plan thus in the town clerk’s office ; to which defendants excepted.</p> <p>There was no evidence of any acts of ownership upon lot 55 by said Josiah Wright, Sen., or by any of his grantors. Plaintiff, having given in evidence various facts tending to show possession of the demanded premises and ownership thereof by Josiah Wright, Jr., from between thirty-five and forty years ago to the time when he sold to Joseph W. Wright, and acts of possession by Joseph W. Wright and by the plaintiff; and having proved possession by defendants under said John and the defendant Sabin, and the amount of damages, rested his case.</p> <p>Defendants gave in evidence a survey made by one Gardner for John Wright, of the premises in question, dated and recorded January 8, 1849; and a deed of the same by John Wright to the defendant Sabin and two others, dated April 12, 1855; and offered to prove that -said John Wright, previous to January 8,1849, told witness where said lot 55 was situated, and how it was bounded, and aleó stated that he was the owner of it, and that said John was now dead. On objection by plaintiff, the court excluded the evidence; to which defendants excepted. Defendants offered to prove by a witness that when the said license was applied for, and was about to be granted by the Probate Court, said Josiah, Jr., and said John, who were brothers and both now dead, and the witness, were present in the Probate Court, and that said John was there to object to the license being granted to sell this particular lot of land, because he said it was his; that said Josiah, Jr., said he did not care anything about that, because it was said John’s land, and he did not propose to sell it; that he conceded on that occasion the title to the lot in question to be in said John; that thereupon said John withdrew his objection, and the license was granted-. On objection by plaintiff the court excluded the evidence ; to which defendants excepted.</p> <p>Defendants, having shown that said John Wright was one of the heirs of said Josiah, Sen.r offered to prove by parol that said John and others under him, by contract made in 1823, went on to lot 55 in 1824, and cut timber for a barn and other purposes; and that said John and others under him made repeated cuttings upon said lot from time to time, to the date of said survey in 1849, during all that time said John claiming said lot to be his; also, that the persons who did those acts knew of no other claimant of said lot than said John ; that said Josiah, Jr., on one occasion, in sight of said lot, pointed to the lot, and said that John owned it; and that on another occasion, in talking with other men about the pines on said lot, and wanting some himself, said Josiah, Jr., said he would see John, and ascertain if he would allow him to get some of them, and that subsequently he did see John, and by his permission, some pines were afterwards cut upon the lot for said Josiah. On objection by plaintiff,, the court admitted so much only of this evidence as would show that Josiah, Jr., got leave of John to do some of the very cutting that the plaintiff had put in evidence, and excluded the rest; to which defendants excepted. Defendants offered to prove by parol, that on another occasion, when Josiah, Jr., was on said lot, he said that the lot then belonged to said John, and that this was after John’s survey was on record. On objection by plaintiff the court excluded the same; to which defendants excepted.</p> <p>The defendants gave evidence of various and repeated acts of possession and ownership by said John from 1849 to 1855, and by defendant Sabin since that time, until the commencement of this suit. Defendants also introduced the probate records in the matter of the estate of Josiah Wright, Sen., to be used by either party; by which it appeared that Josiah, Jr., did act as executor of the will of the testator, and that John Wright, under whom the defendants claim title to the land in question, appealed from the allowance of an administration account by the Probate Court in 1884. It did not appear by said records that any distribution to heirs or devisees had ever been made of the estate ; and the plaintiff claimed that at the time of the license to sell in 1852, administration had never been closed. Defendants also gave in evidence the record of a deed from Josiah Wright, Jr., to Noel Barber, dated June 21, 1843, of all the grantor’s lands in Pownal.</p> <p>Defendants claimed that plaintiff had not identified the lot in their possession as the lot to which plaintiff’s evidence tended to show he had title; and insisted that the same evidence that tended to show title in Josiah Wright, Sen., and a severance of lot 55 to the right of Joel Wells, would inure to the benefit of said John Wright, and would render applicable the evidence offered as to his claim of title to, and his acts of ownership over, the same lot. The court declined to take this view of the case, and ruled otherwise; to which defendants excepted.</p> <p>The land in controversy, and the land all around it, is wild mountain land, wholly unfenced, and not cultivated nor cleared except in spots, and with no marked lines about it except lines of marked trees, which the evidence tended to show were plainly made with the corner, trees “ cornered and marked,” and that said lines were visible, and were found by said John Wright in 1824, and again when he made his aforesaid survey in 1849. There was other evidence tending to show the lot in question to be lot 55, in the sixth division.</p> <p>Upon the whole case thus detailed and stated, the court ruled and held that there was nothing to submit to the jury except identity of the demanded premises and the damages ; and charged the jury that they might consider the plan before admitted in evidence, as evidence of what the other plan in the town clerk’s office really was, and that they were not to consider that at all, unless they found the plan in the town clerk’s office to have been a part of the archives of the town relating to the land titles of the town. To all which rulings, and to the charge aforesaid, defendants excepted. Verdict for plaintiff.</p>

<p>Trespass for falso imprisonment. Pleas, the general issue, and justification as ta,XTCollector for the Bennington Graded School District, in collecting a poll-tax of one dollar and thirty cents assessed against the plaintiff.</p> <p>The plaintiff in person gave evidence tending to show that he was arrested by defendant and two policemen, on the night of March 1, 1871, at the grocery of one Sibley, in the village of Bennington, about the hour of 7 or 8 in the evening, and taken to the county jail at Bennington Center, and there imprisoned against his will; that he remained in said jail until between the hours of 10' and 11 a. m. of March 2d, when he was released by the jailor ; and having given evidence tending to show his actual damages, and also that the arrest was wantonly made, and that personal indignities were offered to him when it was made, he rested his case.</p> <p>Defendant gave evidence tending to support his plea in justification, and it was conceded that all the proceedings relative to the assessment of said tax were legal, and that the rate-bill and warrant were in due form. The defendant further commenced to give evidence tending to show, that after receiving said rate-bill and warrant, about'the first of February, 1871, at the post-office in Bennington, he demanded said tax of plaintiff, and gave plaintiff six days’ notice of the time and place when and where be would attend to receive said tax, but that plaintiff absolutely refused to pay the same, using profane and boisterous language. Plaintiff’s counsel objected to this evidence, and claimed that the proceedings of defendant about collecting said tax should be shown by the return of defendant upon the copy of the warrant left with the jailor, and not otherwise ; but the court received the evidence subject to the objection. The defendant also, subject to like objection and ruling, gave evidence tending to show that af-terwards in the street he offered to the plaintiff a written six days’ notice of like import, which plaintiff declined to receive, using obscene language, and then the defendant gave to the plaintiff like notice orally. Defendant also gave evidence tending to show that on the evening of March 1, 1871, at the grocery of said Sibley in Bennington, he demanded said tax of plaintiff, read said warrant to him, and told him lie must go to jail if he did not pay said tax ; that plaintiff said he had no money, but had some calves, and a bed at his house, which defendant offered to take if plaintiff would go with him and turn it out, but the plaintiff refused to go, alleging that he was under arrest by defendant, and would not go ; that plaintiff used violent, abusive, and profane language toward defendant; that defendant, not feeling well, procured the aid of two policemen, who, with plaintiff and defendant, walked through the streets-towards the jail, using no force upon plaintiff, and he going voluntarily, and refusing the offer of a carriage, saying he preferred to walk ; that when they arrived at the jail, the plaintiff said he had been there before and knew the place, and if they would make a fire in the stove, and give him plenty of wood and a light, he would make himself comfortable, as he should not go to bed, but should sit and read.</p> <p>It appeared in evidence that defendant left no copy of his warrant on the occasion of his lodging the plaintiff in jail. Defendant testified that he left none, and that the reason he did not was. because be did not suppose it was necessary, and that he did all he supposed was necessary; that 'after he had lodged the plaintiff in jail, and as he was returning therefrom to his house, which was in the village of Bennington, after 9 P. M., he saw W. S. South-worth, Esq., and learned from him that it was necessary that ho should leave a copy of his warrant, but that he did not understand Mr. Southworth then that any certificate of his doings upon said warrant was necessary to be left with the jailor; that he went to his house and .there made a copy of his warrant, but not feeling very well, and the hour being late, he went to bed; that about 6 a. m. of the 2d of March, he took the copy made the night before, to the jailor, who was then in bed; that about 7 or 8 A. M., the jailor discovered that there was no certificate of defendant’s doings upon the warrant, nor any minute of the tax and costs, and sent a messenger to defendant, and defendant agaip called upon Mr. Southworth, and received from him a certificate of his doings and took it to the jailor about 9 A. m., and pasted it upon the copy of warrant, and made a minute of the amount of tax and costs thereon. Plaintiff’s evidence tended to show that no sufficient return was made on said warrant till after his discharge from imprisonment.</p> <p>After the objection by plaintiff’s counsel to the admission of said evidence of defendant’s doings under said warrant, and before the conclusion of the evidence upon either side, the court, upon examination of some decided cases referred to by plaintiff’s counsel but not then produced, decided to hold as claimed by plaintiff’s counsel in respect to the proof of such doings, and so informed all parties in open court.</p> <p>The plaintiff requested the court to charge-the jury, that upon the admitted facts of the case the plaintiff was entitled to recover; that the fact that defendant, under the circumstances shown by the case, left no copy of his warrant with his doiugs certified thereon with the jailor, made him a trespasser db initio.</p> <p>The court charged that plaintiff was entitled to recover, unless defendant had made out a justification; that, it being conceded that defendant had a proper rate-bill of a tax, and a warrant for the collection of it, the defendant had the right, after notice and for want of property, about which no question would be submitted in that connection, to arrest the body of plaintiff for non-payment of the tax whenever he saw fit to do so, and to commit him to jail; that when he had made the arrest, it was his right and duty to commit the plaintiff to jail within a reasonable time thereafter; that it was not the duty of defendant to do anything about making any copy of his warrant, or any return of his doings, until he had made the arrest, and that then he had the right to take the plaintiff to jail, and by himself or any other person, to detain him there during a reasonable time within which to make a copy of his warrant and a return of his doings, and leave them, together with the plaintiff, with the jailor, and not any longer than that, without leaving such copy and return; that what would be a reasonable time for that purpose, was for the jury to determine in view of what there was to be done by defendant in that behalf, and the means he had for doing it; that he had a copy of the warrant to make, and a return of his doings to compose and write out, and the whole to leave, together with the prisoner, with the jailor, and that he was bound to use such diligence about doing these things, as men of common diligence, who knew their duty reasonably well, would commonly use about matters' of like importance under like circumstances, which circumstances were the amount of work to be done, the time of day or night, the usual hours of labor, the physical ability of the defendant, and the urgency of the business to be done; that the fact that defendant did not know what was necessary for him to do, was not conclusive against him; but if he in fact did do what was necessary within such reasonable time, it was sufficient; tha't the copy of the warrant and the return produced in evidence by the defendant, were to be taken by the jury to be sufficient if they were seasonably made; that if defendant did not leave the return of his doings with the jailor at all while the plaintiff was detained in jail, or if he delayed making and leaving it longer than the reasonable time, the plaintiff was entitled to recover; but that if the return was made and left with the copy and other papers while the plaintiff was confined in jail, and within the reasonable time, the defendant was entitled to recover; that if plaintiff was entitled to recover because the return was not left at all, he was entitled to recover a fair compensation for the injury done to him by the arrest and imprisonment, including the indignity, inconvenience, and effect upon his bodily health and powers ; that if plaintiff was entitled to recover because the return was not made in a reasonable time, he was entitled to recover for the detention from the expiration of what would have been a reasonable time until the return was in fact made ; that if defendant acted in good faith, fairly believing that he,was doing his duty properly as collector, he was liable no further; but that if he acted with express malice, intending to injure or disgrace the plaintiff, the jury would .be at liberty to go, further, not as a matter of right that the plaintiff was entitled to, but to punish the defendant fo.r an example to him and to others, and give such further damages as they, in the exercise of good judgment and sound discretion, should think proper in view of the conduct of the defendant in doing the acts they should find him liable to the plaintiff for, if any liability should be found.</p> <p>To the refusal to charge as requested, and to the charge as given, plaintiff excepted. Verdict for defendant.</p> <p>A tax warrant is not a returnable process. Hence, a collect- or’s certificate of his doings upon such warrant, is only evidence in the single case provided for by statute. When he shall commit to jail under the 13th section, “He shall leave with the keeper of the jail an attested copy of his warrant, and shall certify his doings thereon in relation to such delinquent.” Gen. Sts. c. 84, ss. 13, 14; Hathaway v. Goodrich, 5 Vt. 65; Henry v. Tilson, 19 Vt. 447 ; Flint v. 'Whitney, 28 Vt. 684; Johnson v. Murphy, 42 Vt. 645. To make such certificate is an official duty. When made, it is an official act. Its efficacy as evidence, and the rules governing its admissibility, are precisely those which apply to other official returns and certificates. “ In a case involving the truth or falsehood of the return as between the parties to the original suit, or if the return is relied upon as evidence against the officer, it should be holden as conclusive.” But when offered as evidence by the officer in his own favor, it is only prima facie evidence. Barrett v. Copeland, 18 Vt. 67 ; Hathaway v. Goodrich, supra; Stanton v. Hodges, 6 Vt. 64 ; Swift v. (7o55, 10 Vt. 282 ; Carey v. Dennison, 15 Vt. 400 ; Flint v. Whitney, supra ; Barnard v. Graves, 13 Met. 85. Plaintiff was committed to jail about 7 or 8 p. m. of March 1st, and remained until 10 or 11 a. m. of March 2d. There is no pretence that defendant left any copy of his warrant with any certificate of his doings, or any statement of the tax and costs, until about 9 A. m. of March 2. Defendant had no right to commit to jail without, simultaneously with the commitment, furnishing the keeper with the means of releasing the prisoner, that is, with a statement of the tax and costs. The word “ when,” as used in the sections cited, means, “ at the time of.” It does not signify such reasonable' time after as the" jury might think it would take “ men of common diligence who knew their duty reasonably well, would commonly use about matters of importance under like circumstances, which circumstances were the amount of work to be done, the time of day or night, the usual hours of labor, the physical ability of the defendant, and the urgency of the business to be done.” The question that- the court thus submitted to the jury was a pure question of law. It should have been decided by the court.</p> <p>The charge upon the subject of damages was erroneous, and well calculated to result, in injury to the plaintiff. It was manifest error to tell the jury, that such exemplary damages were not “ a matter of right that the plaintiff was entitled to, but to punish the defendant,” <fec. This portion of the charge is in direct conflict with late and well-considered cases. Devine v. Band, 38 Vt. 621; Bllsworth v. Potter, 41 Vt. 685.</p> <p>The court having decided to hold that the defendant’s doings must appear from his return, and having excluded the evidence at first received, there is no exception taken. Such final ruling was correct. No parol evidence can enter, to vary a collector’s official history of his own acts ; his case must stand or fall upon his written words. Snow v. Ciarle, 9 Gray, 192 ; Henry v. Til-son, 19 Yt. 447 ; Flint v. 'Whitney, 28 Yt. 680. If this exacting rule bars out all such evidence, how can there be any question for the jury whether the return be true ? This is not an action for a false return, and the official history is conclusive here. Putnam, v. Mann, 8 Wend. 202 ; Allen v. Martin, 8 Wend. 800.</p> <p>This case, then, presents the naked question: Did the court rule correctly relative to the defendant’s having a reasonable time to leave his copy and return. A legal commitment consists of two parts ; a corporal delivery of the prisoner to the jailor within the jail, and a delivery of the written evidence of the authority and acts. Kenerson v. Bacon, 41 Yt. 578; Houghton v. Wilson, 10 Gray, 365. These acts necessarily require time. The officer cannot commit the delinquent instantly to jail; for that edifice may be distant miles from the place of the arrest. He cannot always instantly set out; the hour may be unsuitable, the weather may forbid. Some period of time must intervene between the first touch of the officer’s hand upon the delinquent, and the conclusion of that complex process which makes him the jailor’s charge; and all principles of law declare this period to be a reasonable time. Benoud v. Bachham, 34 Conn. 516 ; Ash v. JDawnay, 8 Exch. 243. It is a reasonable time considering all the circumstances. This is the common rule of'diligence ; the usual conduct of the average man. It is the duty of the collector to commit the delinquent within that reasonable time. How long this reasonable time shall last, depends on the varying circumstances of each case, and is simply a question of fact.</p>

<p>Case for damage to plaintiff’s mill-dam, flume, and bulkhead, occasioned by negligently and carelessly floating logs and timber through the same by defendant. Plea, the general issue, and trial by jury, Juñe Term, 1873, Wheeler, J., presiding.</p> <p>The declaration set out a contract between plaintiff and defendant relative to the floating of said logs and timber, and the duty of defendant to use due care, skill, and prudence in opening, using, and occupying said bulkhead, and in floating and passing said logs and timber through the same, and alleged that defendant so negligently, carelessly, imprudently, and unskillfully opened said bulkhead, and so unskillfully, negligently, and carelessly managed said logs and timbers while so passing and floating through said bulkhead or raceway, that thereby and in consequence thereof, said bulkhead and mill-dam were greatly injured, damaged, and destroyed, and the plaintiff put to great expense, trouble, and loss in repairing the same.</p> <p>Plaintiff introduced evidence tending to show, that in the spring of 1867 he was owner of a mill-dam across Battenkill River in Manchester, with a flume and a bulkhead that held the water of the stream, and that the sides of the flume were kept apart at the top by a cap-piece that prevented the stones of the dam from crowding them together; that Rogers, Hollister & Go. had about 1600 logs in the stream above the dam, and that they agreed with him for leave to open'the bulkhead and run the logs through the dam, to float them down the stream, for which they agreed to pay him two dollars for each hundred logs, and also to repair and pay all damages, and pay for all time over two days that his mill stood still in consequence of opening the bulkhead and running the logs through ; that defendant bought the logs of Rogers, Hol-lister & Co., and agreed with plaintiff to perform their agreements with him about running the logs through the dam, and in his presence commenced to open the bulkhead by knocking off the cap-piece ; that he told defendant the cap-piece ought not to be taken off, and that in his opinion the dam would be washed out if it was, but that defendant persisted in taking it off, saying he was good for the damage, and that defendant further opened the bulkhead in an imprudent and' careless manner, and let the logs rush in without being guided properly after it was opened, and that thereby the flume was injured and the dam undermined and a part of it washed out.</p> <p>Plaintiff was a witness, and testified to the manner in which defendant proceeded in opening the bulkhead and running logs through the dam, and that he was familiar with the running of logs in that stream. He was then asked what would have been a proper way to open the bulkhead and run the logs through. To this question the defendant objected. The court permitted the question to be answered ; to which the defendant excepted. Plaintiff answered that in his judgment the proper way would have been to have left the cap-piece on, and to have guided every log through.</p> <p>Defendant’s evidence tended to show that plaintiff acquiesced in the taking off the cap, and that he managed with proper care and diligence in all that he did in opening the bulkhead and running the logs through; that the dam was to be left open by the defendant for one Hedges to run logs through, and that plaintiff did some tern-porary repairing to it before it was washed out. Defendant’s evidence tended to show that plaintiff did not use proper care in making these repairs.</p> <p>The defendant requested the court to charge the jury as follows :</p> <p>1. If the jury find, as testified by plaintiff and alleged in his declaration, that the plaintiff leased, granted, and sold to defendant the right to open and use the bulkhead in plaintiff’s mill-dam for the purpose of floating and passing through said bulkhead defendant’s timber and logs, under a contract that defendant should pay plaintiff two dollars per hundred logs, and pay all damages to said bulkhead and mill-dam, and that defendant took possession of plaintiff’s mill-dam pursuant to that contract, and in good faith used it for the purposes contemplated by the contract, the plaintiff cannot recover in this action.</p> <p>2. That damages, if any, happening by reason of defendant’s want of skill and prudence in opening and using said bulkhead, are within the terms of the contract, and defendant cannot be made liable in tort for doing that which his contract authorized him to do, provided he acted in good faith, without malice or wantonness towards plaintiff.</p> <p>3. That plaintiff’s evidence does not tend to show malice or wanton conduct by defendant, or that plaintiff has suffered any damage not provided for by his contract with defendant.</p> <p>4. If we are in error.in the views suggested in the foregoing propositions, and the court decline to charge in accordance therewith, then we ask.the court to instruct the jury, that the cause of action set forth is the neglect of defendant to “ use due care, skill, and prudence in opening, using, and occupying said bulkhead, and in floating and passing through said logs and timber.” To entitle plaintiff to recover, he must show affirmatively that defendant did not “ use due care, skill, and prudence,” &c.</p> <p>5. That plaintiff cannot in this action recover for any neglect of the defendant to replace the plank and timbers torn out or removed by him, because the declaration contains no averment applicable to such neglect.</p> <p>6. Nor can he recover in this action for defendant’s want of care or skill in doing anything which plaintiff gave authority or consent that defendant might do; as, if the jury find that plaintiff consented to the removal of the cap-piece, he cannot now complain nor recover because a careful, skillful man might not have removed it.</p> <p>7. Plaintiff cannot recover for any damages happening through an}- contributory negligence of his. If the jury find that the loss of plaintiff’s mill-dam was the result in any degree of the want of ordinary care and prudence in replacing the bulkhead before the wall was repaired, or the want of ordinary care and prudence' in any other respect, plaintiff cannot recover.</p> <p>8. The plaintiff can in no event recover for any damages that did not proximately follow defendant’s acts or omissions. Therefore if the jury fail to find that the loss of the dam was the natural and proximate consequence of defendant’s negligent acts 'or omissions, without any negligent act or omission of plaintiff’s contributing, plaintiff cannot recover for the loss of his dam.</p> <p>The court charged the jury in substance as follows :</p> <p>The plaintiff is not entitled in this action to recover the two cents per log for running them through, nor for the natural wear in using the bulkhead, nor on the agreement to pay all damages done, nor for not replacing the bulkhead. By the arrangement between the parties, defendant was to open the bulkhead through the dam, and run the logs through. Under this arrangement, he was bound to use ordinary care in opening the bulkhead and in running the logs through. Whatever defendant did with the approval of plaintiff fairly given, plaintiff is not entitled to complain of, and defendant is not liable for. If defendant, from the time he commenced to open the bulkhead to the time he finished running the logs through, did anything carelessly or improperly that plaintiff did not approve of, and the carelessness or imprudence injured plaintiff, plaintiff is entitled to a verdict in his favor. If the defendant did not do anything but what he did carefully and prudently, or if he did do something carelessly or imprudently, but the carelessness or imprudence did not injure plaintiff, defendant is entitled to a verdict. If defendant was guilty of any carelessness or imprudence that plaintiff is entitled to recover for, plaintiff is entitled to recover all the damages that the carelessness or imprudence caused, and that plaintiff’s want of care did not contribute to.. After defendant had done with the dam and flume, and left them, plaintiff was bound to use common care about using them, or permitting others to use them, and in taking care of them. If by defendant’s negligence - as explained, the planks or timber of the flume were torn off or injured more than the ordinary wear would have been, plaintiff is entitled to recover fair compensation for such injury. Or if in that way the dam was injured, plaintiff is entitled to recover fair compensation for that injury. If the injury was such that the dam afterwards went off in consequence of it, and plaintiff was not guilty of any negligence in the use he permitted Hedges to make of it, or in the care he took of it, or in the repairs he undertook to make on it, plaintiff is entitled to recover a fair compensation for that injury. If any negligence of plaintiff himself, or in the use by Hedges, contributed to the injury, when that negligence commenced so to contribute, defendant’s liability stopped, and he would be liable for all damages his negligence had caused up to that time, and not for any after. Defendant is- to be held liable only for what he did from the time he commenced to open the bulkhead to when he finished running through ; but the consequences of what he did then may not have manifested themselves till afterward, and if he was guilty of negligence during that time that caused damage afterwards, he is liable for that damage, unless plaintiff was guilty of some negligence that contributed to the damage.</p> <p>The court did not comply with defendant’s requests further than is stated. To the refusal to charge as requested, the defendant excepted. Verdict for plaintiff.</p> <p>The action of trespass on the case cannot be maintained upon the facts, and the jury should have been so instructed. Defendant’s right to run his logs through plaintiff’s dam, and his obligation to pay the stipulated price for the privilege, and to repair and pay all damages, was wholly a matter of contract. Plaintiff cannot treat defendant as a tort feasor, so long as he in good faith acts under the contract, and does not willfully injure his property. The general rule is, that wherever the liability of the defendant grows out of a contract, the action must be in form ex contractu, and where it grows out of a tort or a wrong, unconnected with contract, the action should be in form ex delicto. 1 Chit. PI.. 110, and notes ; 155. There is a class of injuries to personal property which form an exception to the general rule, so that a party may have his election whether to sue in tort or contract. To this class belong actions against carriers or wharfingers, against agents and attorneys for neglect of duty, actions against a party professing skill in his trade or profession, and actions for false warranty. 1 Chit. PI. 153; 1 Smith Lead. Cas. 240.</p> <p>The court below tried this case under a misapprehension of the rights and liabilities of the parties. The cardinal error we have already pointed out. That led to the error involved in that part of the charge where the court say, “ Under this arrangement, defendant was bound to use ordinary care in opening the bulk-bead and running the logs through.” The use of ordinary care furnishes no test of liability in this case. Defendant was bound to “ repair and pay all damages ” that happened to plaintiff in consequence of opening the bulkhead. Had he exercised the most extraordinary care, and, in spite of it, plaintiff was damaged, defendant was liable, not in tort for his negligence, but by force of his contract.</p> <p>Upon the theory that the court below adopted, defendant was entitled to the charge asked for in the fourth request. It adopts the idea of the pleader, quotes the material allegation of the declaration, and asks the court to instruct the jury, that in order for plaintiff to recover, he must show affirmatively.that defendant did not u use due care, skill, and prudence,” etc. Instead of complying with the request, and trying the case upon the theory of the declaration, the court told the jury in general terms, without restriction or limitation, and without vouchsafing any explanation of the sense in which the language was used, that if defendant “ did anything carelessly or improperly that plaintiff did not approve of, and the carelessness or imprudence injured plaintiff, he is entitled to a verdict,” etc. Such a charge could afford no aid to the jury. It will be observed that the charge is silent as to any duty of plaintiff to prove his case. As the court leave it, the jury might well assume that the burden of proof was upon defend-, ant. Nor were the jury informed as to the meaning of the terms, “ ordinary care,” the measure for defendant, and “ common care,” the measure for plaintiff.</p> <p>Upon the subject of damages, the charge was too loose and general. The court gave the. jury no information as to how far they should go in their search after damages. The eighth request should have been complied with.</p> <p>The court permitted plaintiff, against the objection of defendant, to give his opinion as to the proper way to open the bulkhead and run the logs through, and in this respect there was error. Lester v. Pittsford, 7 Yt. 158 ; Fraser v. Tupper, 29 Yt. 409 ; OaJces v. Weston, 45 Vt. 430.</p> <p>Plaintiff is not precluded from recovering in an action on the case, by reason of defendant’s agreement to pay all damages, &c. The law raised a legal obligation on the part of defendant to use ordinary care in the use of plaintiff’s bulkhead and dam under the contract, and failing to do so, he rendered himself liable in tort for negligence. Where there is a special contract to do or not to do a particular thing, a party is not bound to resort to it, to recover damages for a breach, but may declare in tort, on the ground of neglect of duty. 1 Chit. PL 135 ; 1 Hilliard Torts, 25 ; Kenlyside v. Thornton, 2 Bl. 1111 ; 5 B. & C. 489 ; Ward v. Wieman, 17 Wend. 193 ; Robinson v. Threadgill, 13 Ired. 39 ; Ashmore v. Pennsylvania, 4 Dutchor, (N. J.) 180; Marker v. Kenriek, 13 C. B. 188; Ashmead v. Kellogg, 23 Conn. 70 ; (longer v. Ohieago, ¿•c. 15 Ill. 366 ; Hamar v. Alexander, 2 N. R. 241; Wardell v'. Fosdiek, 13 Johns. 325.</p> <p>The opinion of the plaintiff on the proper manner of conducting logs through the raceway, was .properly admitted. 1 Stark. Ev. 153 ; McCreary v. Turk, 29 Ala. 244 ; Hill v. Sturgeon, 28 Miss. 323 ; Buffwm v. Harris, 5 R. I. 243 ; Kearny v. Harwell, 28 Conn. 317 ; Fraser v. Tupper, 42 Yt. 410 ; Hilliard Rem. for Torts, 422 ; Cook v. Castner, 9 Cush. 266 ; Fulsom v. Concord, 46 "Yt. 140.</p> <p>The charge of the court on the subject of damages was correct, and the 8th request should not have been complied with. Park v. McDaniels, 37 Yt. 594 ; Fulsom v. Concord, supra; Saxton v. Bacon, 31 Yt. 540 ; Hilliard Rem. for Torts, 571; Tarleton v. McGawley, Peake, 205 ; White v. Moseley, 8 Pick. 356.</p>

<p> Trespass. Accord and Satisfaction. </p> <p>Defendant liad taken plaintiffs property on an execution against another, and in trespass for the property, defendant’s evidence tended to show that plaintiff agreed that if defendant would return the property to the place from which he took it, that should-settle plaintiffs claim for damages; that defendant began to return the property accordingly, but before it was fully returned, plaintiff told him he should claim damages for the taking, but to put the property where he found it, which he did, and plaintiff used it. Held, that it was competent for jilaintifí to repudiate the agreement as the testimony tended to show, and that if defendant understood that plaintiff declined to receive the property in full, but insisted upon his damages also, and with this knowledge chose to return it and discharge his liability thus far, such return would not have the effect to discharge plaintiffs claim for damages.</p>

Assumpsit jupón a joint'and several promissory note for $800, dated April 28, 1869, payable to plaintiff or bearer in one year from date, with interest, and signed by 0. Noyes, G. H. Noyes, and defendants. Plea, the general issue, and notice. Trial by jury, December Term,¿1875, Wheeler, J., presiding. Plaintiff gave said note in evidence, and rested.

General Assumpsit. The suit was originally brought without naming the defendant as partner or joint promisor. Plaintiffs obtained leave to file new counts, and filed the common counts in assumpsit, declaring against defendant, who lived in Brattleboro, as joint promisor with Frank Bartlett and J. W. Hosford, who were set up as of Boston. Defendant moved to dismiss the new counts, for that they were for a different cause of action.

Trover for a quantity of lumber. Plea, the general issue, and notice of justification under process against Abram F. Chase. Trial by jury, September Term, 1875, Ross, J., presiding.

<p>Boos Acoount. The case appears from the opinion. Judgment for plaintiffs on the report, April Term, 1875, Wheeler, J., presiding. Exceptions by defendants.</p>

Covenant. The declaration alleged that on December 7, 1870, by a certain indenture of that date, plaintiff covenanted and agreed to construct and complete for defendant by the first day of May then next, ready for the superstructure, a certain section of the West River Railroad in Yernon, and defendant covenanted and agreed to pay plaintiff a certain price therefor; that plaintiff entered upon the performance of his said covenants and agreements, and expended divers large…

The Mil alleged, That all the schools within the limits of the village of Brattle-boro are in 'school district No. 2 of the town of Brattleboro, and that James M. Tyler, S. M. Waite, and R. W. Clarke, are the prudential committee of said district; that your orators are inhabitants of said Brattleboro, and tax-payers in the district aforesaid, and each and all have children which they have been accustomed to send to the schools in said district for the purpose of educating…

General Assumpsit. Plea, the general issue. The case was referred, and after report filed, whereby more than 11900 was found due plaintiffs, the court, Barrett, J., presiding, allowed plaintiffs to raise the ad damnum from $1500 to $2500 ; to which defendants excepted. Judgment for plaintiffs on report.

Trustee Peocess, appealed from the judgment of a justice of the peace by the claimant. The case appears from the opinion. The court, at the September Term, 1875, Ross, J., presiding, discharged the trustees, pro forma ; to which plaintiff excepted.

Assumpsit upon a promise to marry. Plea, the general issue, and trial by jury, September Term, 1875, Ross, J., presiding. Plaintiff’s evidence tended to show repeated attentions and visits, extending over a period of nearly four years, considerable correspondence, and at least two distinct promises of marriage, and a breach of those promises by defendant.

<p> Costs. </p> <p>Costs cannot Reclaimed as matter oí legal right, on dismissal of a petition under s. 7, c. 38, of the Gen. Sts., to reverse and set aside a judgment of a justice; their allowance rests in the discretion of the County Court.</p>

<p>Ejectment for lands in Hartland. Judgment for defendant, and exceptions by plaintiffs, May Term, 1874, Barrett, J., presiding.</p> <p>The suit is properly brought in favor of the plaintiffs, who are the only heirs of Daniel Ashley, and the residuary legatees under his will. 4 Kent. Com. 420 ; Hubbard v. Ricart, 3 Vt. 207; Dunbar v. Dunbar's Estate, 3 Yt. 472 ; Cushman v. Jordan, 13 Yt. 597 ; Ives v. AUyn, 13 Yt. 629 ; Buck -v. Squires, 22 Yt. 484 ; Gen. Sts. 389, s. 5, p. 591, s. 14.</p> <p>The payment of the $3500 was a condition precedent to the vesting of any title in Mrs. Barrell. It constituted a lien upon the land that the executor had no right to waive or relinquish without the payment of the full amount. It was a matter solely between Mrs. Barrell and the residuary legatees and heirs. Dunbar. v. Dunbar's Estate, supra. The taking possession of the land binds the performance of the condition. The condition charges the land, and is therefore binding on a married woman. 1 Greenl. Cruise, 494.</p> <p>Mrs. Barrell, being entitled to the immediate possession of the land, and having had the immediate possession, the $3500 then became due and payable, and if*not paid, interest would immediately commence accruing. The interest became tacked to the principal, and the condition would not be discharged without the payment of both. Where there is no contract to pay interest, it is “ recoverable as damages for the detention of the money which the party ought to pay.”, Poland, J., in Abbott v. Wilmot, 22 Yt. 437, 440 ; Williams's Case, 4 Met. 317, 321.</p> <p>An administrator or executor is chargeable with interest on money belonging to the estate on which he has received interest, or should have received interest. Woods, admr. v. Creditors of Eames’s Est. 4 Yt. 256; Admrs. of Slade v. Eeirs of Slade, 10 Yt. 192; 2 Redf. Wills, 881. The rule as to specific legacies is, to cast interest from the death of the testator; as to general legacies, from the end of one year from the testator’s death. 1 Bouv. Law Diet. 654 ; 2 Redf. Wills, 564, 566.</p> <p>No one is required by common law or by statute to pay interest ; and it must be allowed only on agreement of parties, express or implied. Evarts v. Nason's Estate, 11 Yt. 122 ; Newell v. Exrs. of Keith, 11 Yt. 214. Interest is only recoverable as damages for detention of money the party ought to pay, and if the money is received without claiming interest, it is a waiver of claim for interest. Abbott v. Wilmot, 22 Vt. 427 ; Bramará v. Champlain Tr. Co. 29 Vt. 154 ; Sprague v. Sprague's Estate, 30 Vt, 483 ; Hodgdon v. Hodgdon, 2 N. H. 169. After demand, interest is cast as damages. Crleason v. Briggs, 28 Vt. 135 ; Evans v. Beckwith, 37 Vt. 285 ; Seaver v. Bierce, 42 Vt. 325 ; Livermore v. Band, 6 Foster, 85 ; Barnard v. Bartholomew, 22 Pick. 294; 9 Pick. 328, 368; 17 Mass. 57. Money lent does not necessarily draw interest till demand. Hubbard v. Charles-town Br. B. B. 11 Met. 124.</p> <p>The executor represents the testator in all matters which relate to his chattels real and personal, and has Ml authority to discharge debts due his testator’s estate. Bouv. Law Diet, title, Administrator ; 1 Parsons Cont. 107 ; 1 Aik. 48.</p>

<p> 'Guardianship. Contract. </p> <p>Defendant, being under guardianship as an insane person, on account of some mismanagement of his property, hired plaintiff -to do his housework, and slie did it accordingly for a year. Defendant managed his farm, property, and household affairs in his own way, without interference on the part of his guardian. Soon after plaintiff commenced work, the guardian told her to stay, and he would see her paid. After the guardian’s death, plaintiff brought suit for her labor, andheld that defendant was liable therefor.</p>

<p>Assumpsit. Plea, the general issue, and trial by jury, December Term, 1873, Barrett, J., presiding.</p> <p>Plaintiff gave evidence tending to prove that in July, 1871, Mrs. Blood, wife of defendant, applied to the plaintiff, who is a blacksmith by trade, and also carries on the business, to some extent, of making wagons, to make for her what she called a “ school omnibus,” and put on the wheels or running part of a carriage she then had ; that she described what she wanted, as a carriage having seats upon each side and fore end, door behind, driver’s seat in front, and open from the driver’s seat so that -the driver could see to the children-, with curtains on each side ; that she inquired of the plaintiff whether he could make such a carriage,, and the expense ; that plaintiff told her he thought he could make such a carriage, and thought the expense would be about $100 ; that she objected to the price, and was not willing to pay over about $75, and it was finally agreed between them that the plaintiff should make such a carriage for her at the cost of not exceeding $75, which was to cover everything, including painting the body ; that he made such a carriage, and it was taken from his shop by two young sons'of Mrs. Blood in the fore part of August, 1871, and had never been paid for.</p> <p>Defendant gave evidence tending to prove that the carriage was taken to the residence of Mrs. Blood in Norwich (the plaintiff living in Hartford), and was used once, soon after, by her servants and children, to go to Lebanon, N. H., and was not used thereafter except being driven about the village of Norwich for trial, and that the carriage was so constructed that it was wholly worthless. Defendant further gave evidence tending to prove that Mrs. Blood lived in Norwich with her children, in a house owned by herself, and owned the horses and carriages kept by her, and bought property and supplies for the family on her own account and in her own name; that defendant lived in- New York, and was at Norwich but two or three times a year, and then but a few days at a time, and that he had nothing to do with the care or management of the family. • There was no evidence that he ever had any knowledge of this contract between the plaintiff and Mrs. Blood about said carriage.</p> <p>It appeared that plaintiff kept a carriage-making shop, and employed workmen in the business of making the wood, work of carriages.</p> <p>Evidence on the part of plaintiff tended to show that defendant was a native of Norwich ; that his family, consisting of his wife and several children, have generally resided there ; that defendant has from time to time been there with them, though his general business has been in the city of New York; that he has no other family and no other home, and has been owning considerable real estate in said Norwich. Also, that said use of the carriage was soon after it was taken away from plaintiff’s shop; and that very soon after such use, and while it was still out for further use, .defendant was with his family in Norwich, and saw the carriage, and made inquiries of his wife about it, accompanied by some disparaging remark, and thereupon it was stowed away upon the premises where the family lived, and that this was several months before any complaint was made to the plaintiff about the carriage, or he had knowledge of such complaint. Oilier questions were raised, but are not considered by the court.</p> <p>Defendant requested the court to charge that defendant was not liable for said carriage.</p> <p>The court declined to charge as requested, but charged that the wife binds the husband by contracts as his agent, and that such agency may be express or implied ; and after stating the facts in the case, told the jury that when a man leaves his wife in charge of the family in such a way as that, there is carried with it an implied agency that the wife may do whatever is needful, and in the usual course of the support of the family, that so far as she was permitted to do that by her husband, ostensibly, and to the apprehension of the community, thereby she had the authority 'of her husband to do just that class of. things. His permitting her to do that without notice or knowledge to the contrary, or an authorization on his part, would carry an implication of authorization from 'him to do just what she was doing ; and submitted to the jury to say whether the procuring a “ school omnibus,” to carry out her children, was within the headship, control, and management of her family, consistently with the permission that it might be inferred she had to do those things ; and if it fell within the scope of what she was doing with the implied permission of her husband, it would carry with it an implication of an authority or agency, and he would be liable.</p> <p>The charge was full and satisfactory in all other respects. To the refusal to charge as requested, and to the charge as given, the defendant excepted.</p> <p>The defendant is not responsible for this carriage. The wife has an implied authority to bind her husband for necessaries, but not beyond this. Schoul. Dom. Rel. 76 ; Necessaries are food, clothing, medicine, etc. Ib. 77, 79, et, seq. The wife- has no authority to bind her husband’s property. Green v. Sperry, 16 Vt. 390. Nor to procure a set of mineral teeth for herself on his credit, without his consent. Gilman v. Andrus, 28 Vt. 251. The fact that the wife has separate means, is important to be considered on the question of implied authority. 1 Parsons Cont. 288.</p> <p>If it should be claimed that it was proper to order this carriage on the ground of necessaries, that question should have been submitted to the jury. 1 Parsons Cont. 288.</p> <p>Defendant is not liable, as the credit was given to the wife. Garter v. Reward, 39 Vt. 106 ; Partridge v. Stocker, 36 Vt. 108 ; Schoul. Dom. Rel. 83.</p> <p>-, for plaintiff.</p> <p>The question of the liability of defendant should be considered with reference to the facts of the cáse, and therefore became a question for the jury, under such instructions as are shown by the exceptions. Felker v. Fmerson, 16 Vt. 653 ; Orcutt v. Estate of Cook, 37 Yt. 616. It appears by the exceptions that soon after the carriage was taken from plaintiff’s shop, and “ while the same was still out for further use,” defendant was at home, saw it there, made inquiries of his wife about it, and, after comment upon it, liad it stowed away on the family premises, never offering to return it, nor expressing any dissatisfaction to plaintiff, either by himself or any one, until several months after, when the pay is asked for. We say, then, that there being no lack of evidence to predicate the charge, the proposition of law on this point is correct as charged.</p>

<p>Appeal from the Probate Court. A referee was appointed, who reported as follows :</p> <p>On June 5, 1868, intestate and his wife wont to plaintiff’s house on a visit, where the wife was taken sick, and died on July 4th, and part of plaintiff’s claim was for expenses incurred in that sickness. Defendant claimed that plaintiff and the testator settled all matters of account a short time before the testator’s death, and upon that point offered the deposition of Mrs. Minnie J. Davis, the second wife and former widow of the intestate, and now wife of Gf. JEL Davis, brother of plaintiff and the intestate, and administrator of the defendant estate. Plaintiff objected to the deposition, for that the deponent was an incompetent witness, and also for that the citation did not give the name of the magistrate before whom the deposition was to be taken. The plaintiff did not attend the taking of said deposition. Objections overruled and deposition admitted. Defendant also offered the deposition of Mrs, Seymour Bush. The citation for the taking of this deposition was served on June 5th, and as originally drawn, named a place of taking in Northfield, in the county of Dakota, and state of Minnesota, but the word Dakota, was at some time changed to Bice. The time of taking was the 13th of July, and the deposition was taken on that day. The caption correctly named the parties, and stated that the deposition was taken to be used in a cause to be heard and tried before the referee, “ under a rule from the Hon. County Court within and for the county of Windsor, and state of Vermont, on the 13th day of July, A. D. 1874 ” Plaintiff objected to this deposition on account of insufficiency of time and caption. Objection overruled and deposition admitted. From the testimony of Mrs. Davis and Mrs. Bush, I find a settlement, and that there is nothing due plaintiff.</p> <p>The court, at the December Term, 1874, Barrett, J., preside ing, rendered judgment for defendant, pro forma. Exceptions by plaintiff.</p> <p>Minnie J. Davis’s deposition was not admissible. This court has several times since the passing of the statute of 1852 decided that that statute only removed the disqualification of a witness which arises from “ his intercut in the event of a suit as a party or otherwise.” Oram, admr. v. Oram, 33 Vt. 15 ; Manchester v. Manchester, 24 Vt. 649 ; Sargeant v. Seward, 31 Vt. 509 ; Carpenter, exr. v. Moore, 43 Vt. 392. Other courts have held the same under a statute similar to ours. Barbalt v. Allen, 10 Eng. L. & Eq. 596 ; Stapleton v. Crofts, 10 Eng. L. & Eq. 445; s. c. 83 E. C. L. [*367] ; AlcocJc v.AlcocJc, 12 Eng. L. & Eq. 354; Pillow et ux. v. Bushnell, 5 Barb. 156 ; Barber v. Goddard, Supt. Ot. Mass. 20 Law Reporter, 1857, p. 408. The deposition is also inadmissible for the reason 'that the citation does not give-the name of the magistrate before whom the same is to be taken. St. Johnsbury v. Gtoodenough, 44 Vt. 662.</p> <p>The deposition of Mrs. Bush should have been rejected. It appears upon the face of the citation that it was served upon the plaintiff to appear in Northfield, in the county of Dakota, and that the magistrate after receiving it struck out the word Dakota and inserted Bice, and from the certificate it appears^_the deposition was taken in the county of Bice, and not in Dakota. The deposition should also be rejected for that by the certificate and caption it appears that the same was taken on the 13th of July, 1874, and certified that the same was taken to be used in a cause to be heard and tried on the same 13th of July, before the referee.</p> <p>The adverse party had not reasonable time to attend the taking and be at the place of trial. Gen. Sts. c. 36, s. 6, and Acts of 1864 in amendment; Stephens v. Thompson, 28 Yt. 77.</p> <p>The rule that a widow may testify as to those matters which came within her personal knowledge, and are not drawn from confidential communication with her husband, has been long settled in this state. Williams v. Baldwin, 7 Yt. 503 ; Edgell v. Bennett, 7 Yt. 534; Smith v. Potter, 27 Yt. 304. The citation is-sufficient. The statute only directs that the time and place be named. Gen. Sts. c. 36, s. 6, and Acts of 1864, p. 57.</p> <p>The time for taking Mrs. Bush’s deposition was sufficient. Hough v. Lawrence, 5 Yt. 299. In this case it was in the discretion of the referee, and he has decided it. The mere fact that the magistrate before whom the deposition was taken, by mistake inserted after the words “ on the,” the words, “ 13th day of July, A. D. 1874,” cannot vitiate'the deposition in view of the fact that the hearing was in fact on .the 1st day of October, 1874, as appears by the referee’s minutes of the time of opening the deposition, the time of hearing having been left to the agreement of parties at the time of the service of the citation, and never fixed by the referee, but had upon agreement of counsel.* This objection so raised by the plaintiff has not only unsoundness of law, but breach of faith, as its elements — -specially the last; and the plaintiff having agreed that the deposition might be taken, and then the time of hearing fixed by agreement of the parties, it is too late to insist on technicalities in this direction. Clark v. Brown, 15 Vt. 658; Chandler v. Spear, 22 Yt. 327.</p>

Assumpsit on a subscription paper. The case was referred, and report by the referee. At the December Term, 1878, Barrett, J., presiding, the court rendered judgment on the report for the plaintiffs, proforma, to which defendant excepted. The case appears from the opinion.

Assumpsit for false warranty of a promissory note. Plea, the general issue, and trial by jury, December Term, 1874, Barrett, J., presiding. Said note was for $58, dated Aug. fi, 1870, payable to the order of one McIntosh & Co. 30 days after date, signed by one Lincoln, indorsed by the payees to defendant, and by defendant to plaintiff without recourse to the payees or the defendant.

<p> Pleading. </p> <p>Declaration by landlord for obstructing a way and right of way in possession, is not sustained by proof of obstructing the same while in possession of tenant for years.</p>

<p> Water Bight. Construction of Grant of Water. </p> <p>S., while owning the premises now owned by plaintiff and defendant in severalty, and residing upon that portion thereof now owned by defendant, conveyed plaintiff’s portion thereof, with “ the right to take water at our cistern at or near where it now is, when there is water in said cistern.” At the time of said grant, water was si^pplied to said cistern by means of a pipe laid from a spring, and no other water came to S’s place, and it was not contemplated ',that any other would be brought. Said cistern was subsequently moved from the back room of the house to the outside of the house, and plaintiff took water from it as before. Defendant af-terwards brought water from another spring into a new cistern that he put into the back room where the old one stood. Water froze in the pipe that supplied the old cistern, and no water ran therefrom into said cistern. Held, that said grant did not entitle plaintiff to water from the new cistern.</p>

Assumpsit for money had and received. Judgment for plaintiff, no question being made as to the sum for which judgment should be rendered. Plaintiff moved for a certified execution under s. 24. c. 121, Gen. Sts.

<p>Forcible Entry and'Detainer brought before a justice of the peace, founded on ss. 22, 23, c. 46, Gen. Sts. The premises in question were conveyed to plaintiff by one Rand, to whom defendant and his wife had conveyed their equity of redemption therein, and one Brockway had conveyed his interest in a decree of foreclosure by him obtained on a mortgage thereof executed to him by defendant. Plaintiff gave testimony that on the day Rand conveyed to him, he informed defendant thereof, and requested him to surrender possession of the premises, and that defendant promised to do so in the course of a week — as soon as he could find a house to move into ; that afterwards, and before this suit was brought, defendant told plaintiff he should not surrender possession till he was obliged to, and that he was still in possession. The time of redemption fixed by said decree expired before this suit was brought. Upon these facts, the court, at the December Term, 1874, Barrett, J., presiding, decided that there was no holding over within the meaning of said sections, and directed a verdict for the defendant; to which plaintiff excepted.</p> <p>Conceding that defendant bad no title, was plaintiff, under his title, coupled with the promise of defendant to surrender the possession, in a situation to take advantage of the statute in question ? This we claim affirmatively, upon the ground that if defendaut had gone into possession upon Just such terms, the statute would undoubtedly apply; and it matters not whether the possession was a continuing one, or one beginning with like understanding, terms and conditions.</p> <p>The premises belonged absolutely to the plaintiff, and this the defendant knew, as it was effected by his own deed to Rand, of which latter conveyance he had notice.</p> <p>This action will lie only between lessor and lessee. This case shows that the defendant owned the land. He was not a lessee in any sense of the term; therefore this action cannot lie, and the ruling of the court below is correct. Davis v. Semenway, 27 Vt. 589.</p>

<p> Contract. </p> <p>Although one may he obliged to support another only at a certain place, yet, if he contracts for such support elsewhere, and promises to pay therefor, he is liable.</p>

This was an appeal from an order of removal of one Lucy Rhodes, a pauper, from the town of Cavendish to -the town of Mt. Holly. Plea, that the pauper’s last legal settlement was not in Mt. Holly. Trial by jury, December Term, 1875, Barrett, J., presiding. Upon the trial the following facts were conceded to lie true by both parties. The pauper was the daughter of James Rhodes and Abigail Rhodes.

<p>Competency of Witness under s. 24, c. 36, Gren. Sts. Evidence.</p> <p>A party to a contract in issue and on trial, but who is not a party to the record, is not a competent witness to such contract, the other party thereto being dead.</p> <p>The testator’s sister deposited money in defendant bank to the testator’s credit, and subsequently drew it out under such circumstances that her right to do so depended on contract between her and the testator. In a suit against the bank by the testator’s administrator cum tes., for the recovery of said money, it was held that plaintiff might show anything against tho bank that he could against the sister had she been defendant, and by the same means and method of proof; and that her written declarations might be shown by tho production of the writing and proof of her handwriting, without calling her as a witness.</p> <p>Defendant claimed that said money really belonged to the testator’s sister, but was deposited in tho testator’s name to prevent its being taken on her husband’s debts. Held, that plaintiff might show, to rebut this claim, that she had money in tho bank at the same time deposited in her own name.</p>

<p>Assijmpsit for the collection of taxes in the town of Barnard for the years 1870 and 1871, brought in the name of the plaintiff who was collector of taxes in said town. Trial by jury, May Term, 1878, Barrett, J., presiding.</p> <p>It appeared that said Rhoda was the wife of said Daniel Aiken; that the taxes were assessed for money on hand and debts due to the said Rhoda; that the same property was placed in the grand list of 1869 to said Rhoda at the same amount; that the defendants had lived in Barnard a'great number of years preceding 1870 ; that said Rhoda left said town about the middle of January, 1870, and went to Massachusetts, and that her husband followed her the last day of March following, or the last day but one, each taking with them their wearing apparel and a portion of their household furniture ; that the residue of their household furniture was left in the house they occupied in Barnard, excepting a portion thereof that was sold. Testimony was introduced by the defendants tending to show that each of the defendants at the time of their leaving Barnard as aforesaid, intended to remain in Massachusetts and change their residence. Testimony was also given by the plaintiff tending to show that said removal was not with the intention of remaining, and was not with the intention of changing their residence. It also appeared that the defendant Daniel Aiken returned to Barnard in June, 1870, and stayed two or three weeks, and'that in May or June, 1871, both defendants returned to Barnard, went into the house where they had left a portion of their furniture as aforesaid, and kept house therein till the following November, when defendant Rhoda returned to Massachusetts. The said Daniel stayed in Barnard till the spring of 1872, when he also returned to Massachusetts. It appeared that the listers of Barnard gave notice of a time and place for hearing persons aggrieved, pursuant to statute, by posting notices thereof^ but they did not give the said Rhoda any notice of her assessment except by posting as aforesaid. The defendant claimed that for want of such notice said assessment and said taxes were illegal, and requested the court to so charge ; but the court declined so to do, and did charge the jury on this point that if the defendant Rhoda’s list was the same as it was the preceding-year, no other notice was necessary.</p> <p>It appeared that said taxes were assessed against said Rhoda alone, and that the said Daniel’s name did not appear on the grand list; and the defendants claimed that said taxes were therefore illegal, and requested the court to so charge ; but the court declined so to do. To the refusal to charge as requested, and to the charge as given, the defendants excepted. Verdict for plaintiff.</p> <p>The defendant Rhoda was entitled to the notice provided by statute, act of 1866, and not having had such notice, the tax is void. The posting of the notice was a nullity, for the act provides for no such proceeding. Gen. Sts. o. 83, s. 27 ; Acts of 1864, No. 64, s. 4 ; Acts of 1866, No. 14, s. 2 ; Olement v. Sale, 47 Vt. 680. If she was taxable, it was on the ground that she and her husband had a residence and dwelling-house in said Barnard, yet it is admitted that no notice was left there. It is a proceeding in invitum, and the steps of the statute must be strictly followed. The tax was assessed for money on hand or debts due. A femme covert cannot be assessed for money on hand, for by law she can have none. But if she can, her residence and not his, must determine where she shall be assessed; and if she leave her husband and remove from the state, with the intention of changing her residence, and does so change it, as far as she is concerned, she would not be liable to taxation here simply because her husband retained a residence here.</p> <p>Notice of listers was sufficient, ■ and the court did not err in charging the jury that if defendant Rhoda’s list was the same in 1870 and 1871 that it was in 1869, no other notice was necessaiy than posting notices under the statute. Gen. Sts. c. 83, s. 27. This statute contemplates personal service of notice on a new list, or on an old list which has been increased. Where a list of money due, as in this case, is unchanged, and taxes have been paid on it before, as defendant Rhoda did pay taxes in 1869 on this same amount, then notice is sufficient, because the tax-payer is not injured — he knows of the list and the amount.</p>

<p>Assumpsit upon a promissory note. The third plea alleged,</p> <p>That on the 21st of April, 1869, defendant purchased plaintiff’s undivided half of certain real and personal-estate that he then owned in company with one Thompson, and gave plaintiff therefor two notes for sis hundred dollars each, and one note for three hundred dollars, which were secured by mortgage on one half of the mill property that defendant purchased of plaintiff, and one note for five hundred dollars, and the note in suit for four hundred and fifty dollars ; and that on the 21st of September, 1869, defendant sold all said property to D. J. Boyn-ton ; and it was then agreed between plaintiff and defendant and said Boynton, that tbe said Boynton should assume and pay all thé aforesaid notes to plaintiff; and plaintiff at the same time released defendant from the payment of said notes secured by mortgage as aforesaid ; and on the 4th of October, 1869, the mill on said premises was swept away by a flood, and the premises otherwise greatly damaged by said flood, so that they were insufficient security for the debt due to plaintiff on said mortgage as aforesaid, which was then wholly unpaid, and the plaintiff had. no sufficient security for the same, and the said Boynton then had no other property with which to pay or satisfy his said indebtedness to plaintiff; and for a long time afterwards it was a matter of doubt whether said Boynton, or the said Thompson and Boynton, would or could repair said premises or rebuild said mill; and the plaintiff, at said Springfield, on the first day of November, 1869, in consideration that said Boynton would furnish to Gilman & Townsend about one hundred dollars worth of lumber, to S. K. Randall, who was then the holder of the note in suit, about one hundred and fifty dollars worth of lumber, and to Ellis, Britton & Eaton between fifty and sixty dollars worth of lumber, and would go on and rebuild said mill in company with the said Thompson, he the plaintiff then and there promised said Boynton that he would pay the note in suit, then in said Randall’s hands, to said Randall, and not call on said Boynton for the same ; and defendant says that said Boynton did furnish said lumber to the said several parties as aforesaid, and did go on and rebuild said mill, and thereby satisfied and paid said note in full.</p> <p>To this plea the plaintiff replied,</p> <p>That although it is true that plaintiff, at said Springfield, on the first day of November, 1869, in consideration that said Boyn-ton would furnish to Gilman & Townsend about one hundred dollars worth of lumber, to S. £. Randall about one hundred and fifty dollars worth of lumber, and to Ellis, Britton & Eaton between fifty and sixty dollars worth of lumber, and would go on and rebuild said mill in said plea mentioned, then and there promised said Boynton that he would pay the note in suit, and not call on said Boynton for the same ; and though it is true that said Boynton did go on and rebuild said mill, yet as to the furnishing said lumber to said Gilman & Townsend, and to the said. Ellis, Britton & Eaton, the plaintiff saith that said Boynton did deliver to said Gilman & Townsend, lumber to the value of eighty--six dollars and seventy-three cents, and to the said Ellis, Britton & Eaton, lumber to the value of seventy-two dollars and sixty cents; but the plaintiff says that one of said six hundred dollar notes mentioned in said plea was renewed and paid by- giving a new note to plaintiff for seven hundred dollars, signed by said Boynton, and Luther G. Boynton surety, and afterward said seven hundred dollar note was .part paid in money, and the balance by giving a new note to plaintiff for five hundred dollars, signed by the said Boyn-ton and Luther G. Boynton, and that in January, 1873, plaintiff, who was then living out of the state, sent the said five hundred dollar note to the First National Bank of Springfield, Vt., for collection, and demanded payment on the same of the said D. J. Boynton, which was then due, and said Boynton refused to pay the same unless plaintiff would allow in offset thereon, among other things, one half of said bills of lumber that said Boynton had delivered to the said Gilman & Townsend and»the»said Ellis, Britton & Eaton, amounting to seventy-nine dollars and sixty-six cents ; and that said Boynton claimed at said bank at the time of paying the said five hundred dollar note, and before, that said sum of seventy-nine dollars and sixty-six cents should be allowed in offset, and applied in part payment of said note, and said sum of seventy-nine dollars and sixty-six cents was allowed and applied in part payment of said note at that time, to wit, on the 11th of February, 1873, at Springfield, aforesaid, and said sum of seventy-nine dollars and sixty-six cents never was applied in part, payment of the note in suit.</p> <p>General demurrer to the replication. The court, at the May Term, 1875, Barrett, J., presiding, sustained the demurrer, adjudged the replication insufficient, and rendered judgment for the defendant to recover his costs. Exceptions by plaintiff.</p> <p>Boynton agreed to pay the note by rebuilding his half of the mill, and by furnishing bills of lumber to three different parties. If Boynton would furnish the three bills of lumber, the plaintiff would give him the benefit of the balance due on the note, to help him rebuild. Boynton did not furnish the lumber to Ellis, Britton & Eaton, nor to Gilman & Townsend, as meant by the contract, when he delivered lumber to them and collected pay for the same, and, therefore, has not paid the note. Boynton having refused to carry out the terms of the agreement with the plaintiff, the plaintiff is entitled to recover of the defendant the full amount of the note.</p> <p>No part of the plea is traversed by the replication. That agreement made Boynton instead of the defendant, the plaintiff’s debtor for the amount due on the note in suit; and if nothing further had been done, the plaintiff could not sustain the suit against the defendant. Pangborn v. Saxton, 11 Yt. 79 ; Eaton v. Whitcomb, 17 Yt. 641; Ambler v. Bradley, 6 Yt. 119; Cramp-ton v. Ballard, 10 Yt. 251; 3 T. R. 180.-</p> <p>But if this were not so, the actual payment of the note by Boynton, as alleged in the plea, was a good and full payment, and relieved the defendant and Boynton from all liability thereon. The fact that three years afterwards, Boynton required the plaintiff to give him something to pay another note, or claimed it as an offset, does not revive a note against the defendant that has been fully paid. If the plaintiff has any claim, it is against Boynton, and for the balance due on Boynton’s note, which, if the replication bo true, he did not pay in full. Wheeler v. Wheeler, 11 Yt. 60; Stevens v. Tuttle, 3 Yt. 519; Slasson v. Davis, 1 Aik. 73; Bronson v. Pugg, 39 Yt. 241; Camp v. Page, 42 Yt. 739; Walbridge v. Kibbee, 20 Yt. 543.</p>

<p>Audita Querela to set aside an execution and levy thereof on real estate. The pleadings resulted in a special demurrer to the rejoinder. The merits of the case fully appear from the opinion. The court, at the May Term, 1875, Barrett, J., presiding, rendered judgment for the defendants ; to which the plaintiff excepted.</p>

Covenant. The declaration counted upon a covenant in defendant’s deed of a certain lot, conditioned that plaintiff should build a store on said lot, whereby defendant Covenanted with plaintiff to build a store on the northerly side of said lot, in the angle between said lot and said Baxter’s store, and to furnish plaintiff with access to the second story thereof by a flight of stairs to be erected by defendant on said angle, at least four feet and six inches wide, and to…

<p>Case. Plea, the general issue, and trial by jury, May Term, 1875, Barrett, J., presiding.</p> <p>It appeared in evidence, and was not controverted, that the plaintiff’s leg was fractured Dec. 12, 1874, and that defendant visited plaintiff and saw his limb oji only two occasions, Dec. 13 and 18, and on each occasion in company with Dr. Ellis. Defendant lived in Woodstock, some twelve miles from plaintiff, and Dr. Ellis was practicing at Barnard, living about three miles from plaintiff. Dr. Ellis was first sent for the day of the accident, and laid the plaintiff’s leg onto a double inclined splint, to make him as comfortable as possible, and declined taking the responsibility of. reducing the fracture, and in consequence thereof defendant was sent for to come next day and reduce the fracture. Dr. Ellis visited plaintiff thereafter almost every day until Jan. 4, 1875, when another surgeon was called to take charge of the case. Defendant visited plaintiff on Dec. 18, by reason of a letter written by Dr. Ellis at the request of plaintiff’s friends, specially requesting defendant to do so. Nothing was claimed by plaintiff but that everything was done properly and well by defendant on the 18th of December. Plaintiff’s sole claim was, that defendant bound tbe leg so tightly that by reason thereof, and of the instructions given by bim to Dr. Ellis, the injury accrued. Plaintiff claimed that Dr. Ellis attended him by the request, and as the servant, of the defendant, and that plaintiff was, from the time .defendant was first there, the patient of defendant. Defendant claimed that he was sent for only to take charge of setting the leg with the assistance of Dr. Ellis, and that he did this properly, and then left plaintiff in the hands of Dr. Ellis as his patient, without any expectation of again visiting the case unless specially sent for. All the surgeons called on the part of defendant, testified that the surgeon applying the dressing in any such case, could not tell whether the bandage might prove too tight or too loose, but that this whole matter must necessarily be left with the attending surgeon, whose duty it was to examine carefully in reference thereto, and, adjust the dressing and bandages as might be needed, and no testimony was introduced to contradict them.</p> <p>It was conceded and treated in the trial, that the course taken with the limb in the interval between the time defendant left plaintiff after he had finished the dressing on said Saturday, and his second visit on the 18th, was lacking in proper and ordinary skill and' care.</p> <p>Plaintiff requested the court to charge the jury as follows :</p> <p>1 If the defendant was employed only to reduce the fracture and'set the limb, and in so doing applied the bandage too tightly, and in consequence thereof the injury occurred, the defendant is liable</p> <p>2. If the injury occurred because of any bad management or neglect of defendant, or in consequence of any advice or direction of defendant, he is liable.</p> <p>The charge of the court upon the points covered by the requests and exceptions, was as follows :</p> <p>As a matter of course, it becomes important to-get an idea of what this matter of requisite skill is, because, when you say that a person is liable for unskillfulness, the question is, how much skill is he bound to have and to exercise in order that he should not be" liable for a disastrous result ? It is a little difficult to de-£ne it — you can only describe it or illustrate it. The ordinary expression is, ordinary shill. That means, such skill as doctors in the same general neighborhood, in the same general lines of practice, ordinarily have and exercise in like cases. If a doctor does in a case what the average class of doctors are accustomed to do and would do in such a case, then he exercises what is meant by ordinary skill in a given case. If ho exercises such skill, then he is not liable for lack of skill, because the law only requires of him that he should exercise ordinary skill, such as the average of doctors like himself are accustomed to exercise in like cases. If he exercises such skill, then he is not liable for lack of skill, even though injury occurs that might have been prevented if the doctor had possessed and exercised greater skill. A doctor is not bound to be more skillful or more learned or more competent than the average class of doctors, unless he holds himself out as having extraordinary skill. He is not bound to have extraordinary skill or wisdom beyond the books— beyond that held by the average of the profession. If- he exercises ordinary skill in a given case, he acquits himself of liability, even though the result is disastrous, that is, only where the disastrous result is produced by his want or his lack of using that ordinary skill. That being so, did Dr. Richmond use ordinary and reasonable care in dressing the leg, — that is,' in doing' what he did on Saturday, did he set and dress that leg in the manner that doctors like himself in the community would have done the same thing, or are ordinarily accustomed to do. the same thing ?</p> <p>¿r? s}? % ¿te</p> <p>If Dr. Richmond had fulfilled the employment that he had, if he had done what he was called upon to do by the employment that he had, when he got through there on Saturday, and that employment did not require him to do more until he was again called on, then, as a matter of course,, he was not liable for what ensued, unless what ensued was not produced by the want of proper care, skill, and attention on the part of Dr. Ellis. If Dr. Ellis did what he was called upon to do in the relation he sustained to the case, if he exercised the proper skill, care, and intelligence in performing what was his duty in the relation he sustained to the case, and still the disastrous consequences to that limb flowed from the fault of Dr. Richmond in the original dressing, then, as a matter of course, Dr. Richmond would be liable. But if Dr. Ellis sustained a relation to the case that rendered it his duty and not Dr. Richmond’s, to care for and see to the proper condition of that limb with reference to the dressing that Dr. Richmond had applied, and the disastrous consequences flowed from his lack of giving proper attention to the subject after it had gone out of Dr. Richmond’s hand and treatment, then, as a matter of coarse, Dr. Richmond cannot be held liable.</p> <p>* * * * * * *</p> <p>I restate, passing over what I have already said, and putting to you now as a distinct point, though the elements of it are fulfilled in what I have already stated to you; if Dr. Richmond was wanting in the exercise of proper skill in the tightness of the bandage, still, if his employment ceased when he had set and dressed the limb, and the case and the treatment of the limb fell into'the hands of Dr. Ellis, and it was the duty of Dr. Ellis to discover that the bandage was too tight and ought to he loosened and re dressed, and he ought to loosen it and re-dress the limb, if by so doing, by loosening the bandage and re-dressing the limb, the injury of the tight bandaging could have been prevented, then Dr. Richmond would not be liable for that injury. If it would have become his duty in the position Dr. Ellis had, to have discovered that the bandage was too tight, and to have loosened it and re-dressed the limb, and if by that the injury by the too tight bandage would have been prevented, then Dr. Richmond would not have been liable for the injury. Now upon this proposition you are to consider the evidence.</p> <p>The court complied no further with said requests than is' shown by the charge as given. To such non-compliance, and to so much of the charge given as is not conformable to said requests, the plaintiff excepted. Verdict for defendant.</p> <p>The charge conveys the idea that if the defendant would “ average in skill with the doctors in the neighborhood, he would not be liable.” We insist that is not the criterion. If so, a bevy of quacks in any locality could establish the amount of requisite skill.</p> <p>The court charged that “ if Dr. Richmond was wanting in the exercise of proper skill in the tightness of the bandage, &c., he was not liable.” Admitting, as the charge does, that the defendant was guilty of unskillfulness or negligence, the first negligence, the negligence from which the injury directly flowed, can it be that he is exonerated by the subsequent negligence of Dr. Ellis ? Illidge v. Gfoodwin, 5 C. & P. 190; Lynch v. Bur-din, 41 E. C. L. 422; Bridge v. Gfrand Junction B. B. 3 M & W, 244; 0one v. Robinson, 22 Yt. 222. In this case the cause of action was complete when the defendant unskillfully dressed the limb. .If Dr. Ellis had been the most skillful of surgeons, and had removed the bandage on the next morning, and-thus saved the limb, yet the defendant would have been liable for all the pain and suffering caused by said bandage till it was so removed. The unskillfulness of Dr. Ellis, at most, only aggravated the result. Such unskillfulness could only affect the amount of damages, and not the right of action. Wilmot v. Howard, 39 Yt. 457.</p> <p>The court below charged that the surgeon must have and exercise ordinary skill. In this there was no error, for it is the way all the text books define it. Shearman & Redf. Negl. ss. 436, 437, 434, note ; Williams Torts, 253 ; Lamson v. Humphrey, 9 Conn. 209.</p> <p>There was no error in the charge as to defendant not being liable if Dr. Ellis did not remove the tight bandage. The surgeons who testified all agreed that a surgeon applying a dressing at the time of reducing the fracture, could not, in any such case, determine whether the dressing would prove too tight or too loose, but that this matter had to be left to the attending physician, whose duty it was to watch the matter carefully, and properly adjust and arrange as the dressings and bandages might require. The proposition of the charge is expressly founded upon the supposition that the jury should find that nothing more was required of Dr. Richmond after that Saturday. It was conceded that after that Saturday and before the Thursday when Dr. Richmond was there the second time, the treatment of the limb was lacking in ordinary care and skill. Can it be possible that, in any view, a surgeon who is called to reduce and dress a fracture, and is not permitted to attend to it afterwards, can be liable for an injury happening by reason of a neglect of duty by the attending physician ? This case was brought, on this branch, precisely within the principle of Wilmot v. Howard, 39 Yt. 456.</p> <p>The court properly charged the jury upon the question of the character in which Dr. Ellis was attending the plaintiff, whether as the servant of Dr. Richmond, and to carry out his directions, or whether in his own capacity as a surgeon, to act upon his own knowledge and judgment.</p>

<p> Appeal from a Justice of Ike Peace. Intoxicating Liquor. </p> <p>Defendant's appeal from the judgment of a justice of the peace will not be dismissed on motion because the copies of appeal do not show a right of appeal. The right of appeal may grow out of the character of the defense, and not appear of record. The presumption is in favor of the regularity of an appeal; and if the appellee alleges a want of right to appeal not apparent of record, he must plead such facts as, in connection with the record, will show such want of right.</p> <p>In trover for cider, it was held that a justice’s record of regularproeeedings of seizure, forfeiture, and destruction thereof, was conclusive upon the plaintiff when given in evidence under the general issue and notice of justification thereunder, not hy way of estoppel, hut as showing that plaintiff’s rights were taken away by the adjudication of forfeiture; and that therefore defendant did not convert -plaintiff’s property.</p> <p>Such proceedings are in the nature of proceedings in rem, and if regular, and the justice has jurisdiction of the subject-matter, they fix the status of the property as to all the world; and notice to the keeper of liquor when seized, is all the notice required by statute, and the owner is bound by the proceedings, whether he has notice or not,</p>

Trespass and Trover for nine casks of cider and the casks. Plea, the general issue, and notice of justification as an officer under process for the seizure and forfeiture of said cider pursuant to statute. Trial by jury, May Term, 1875, Barrett, J., presiding. Plaintiff offered evidence to contradict defendant’s return upon the warrant issued to carry into effect á judgment of forfeiture of said cider to the town of Rutland.

<p> Compromise Agreement between Debtor and Creditors. Principal and Surety. </p> <p>A compromise agreement between debtor and creditors, whereby the debtor is to be discharged in full upon payment of a certain portion of his debts, when executed and a written discharge given in pursuance thereof, is binding upon all the creditors, and a complete discharge to the debtor; and such discharge need not be under seal.</p> <p>Discharge of the principal discharges the known surety.</p>

<p>Trespass, for that at Bethel, on the 7th of December, 1872, defendant, with force and arms, by his dog, did worry, wound, and kill a great number of plaintiff’s sheep, to wit, thirty sheep, of the value of, <fcc., to the great damage of plaintiff, and contrary to s. 9, c. 104, of the Gen. Sts. Also for that at said Bethel, defendant’s certain other dog, by him owned and kept, with force and arms, on said 7th day of December, did worry and wound plaintiff’s other sheep, to wit, thirty sheep, so that many of them, to wit, fifteen sheep, died in consequence thereof, and the residue became and were of little value to the plaintiff’ in consequence thereof. To the great damage of plaintiff, and contrary to the form, force, and effect of said statute. Also, for that at said Bethel,'on said 7th day of December, defendant, with force and arms, with his certain other dog, chased, worried, wounded, and killed other of plaintiff’s sheep, of the value of one hundred and fifty dollars, to wit, thirty sheep, so that they became and were of little or no value to the plaintiff. The last count was withdrawn, and the case tried on the other two. Plea, the general issue, and trial by jury, May Term, 1875, Barrett, J., presiding.</p> <p>It appeared on the trial that some dogs killed some of plaintiff’s sheep and damaged others, on or about the 7th of December, 1872. Testimony was introduced by plaintiff tending to show that defendant’s dbg was one of two that did the damage. It appeared from plaintiff’s own testimoúy, that the other of said dogs was the property of one Green, that Green’s dog was killed, and that all this was known to plaintiff before this suit was commenced. Said Green was one of plaintiff’s witnesses. It appeared that defendant did not cause said damage to be done, and that he had no knowledge that it was done, or that his dog was in any way wont to worry sheep. It also appeared that plaintiff was the owner and keeper of a dog at the time said damage was done, and that plaintiff’s dog was loose and at large, and near the place where the damage was done at the time said sheep were killed ; and evidence tended to show that plaintiff procured his said dog to be killed just before this suit was tried by the magistrate, and shortly after the damage was done. The defendant introduced testimony tending to show that his dog was not there, but was at home at the time, and did not do the damage; and offered evidence to show that plaintiff’s dog had at different times that were specified, chased and worried sheep in the neighborhood of plaintiff’s residence. The court excluded the evidence, and defendant excepted. Defendant requested the court to charge the jury,</p> <p>1. That under the declaration plaintiff cannot recover unless he proves that defendant purposely set his dog onto the sheep, or knowingly allowed him'to injure them.</p> <p>2. That at least plaintiff must show that defendant knew his dog was in the habit of killing sheep, or that the dog was wont to worry and injure sheep, and this was known to defendant, otherwise he cannot recover under this declaration ; and that not having alleged such knowledge in defendant, plaintiff cannot now recover by showing it.</p> <p>8. That even if the court should rule against the foregoing requests, plaintiff cannot in any event recover more than single damages, and no vindictive nor exemplary damages, nor cumulative damages.</p> <p>4. That under the proof, plaintiff was bound to join another with defendant in his declaration, and cannot recover against defendant alone under the statute.</p> <p>The court declined to rule as requested in all but the third request. To all which refusals to rule'as requested, and to said rulings, defendant excepted.</p>

<p> Assault and Battery. JEvidence. </p> <p>On indictment lor assault and battery oí a prisoner by the prison keeper, there being evidence that the blow was inflicted for disobedience of orders, and that the prisoner had a hammer in his hand at the time that he clutched firmly, and looked pale and appeared nervous and excited, though lie made no attempt to strike, but that the keeper expected and feared a blow from him, and had previously been told oí his conduct in the prison that led him to believe him a dangerous man, Held, that respondent might show that the sheriff who committed the prisoner, informed respondent that he was danp;erous and desperate. ,</p>

<p>Assumpsit. The case was referred, and the court, at the December'Term, 1875, Babrett, J., presiding, rendered judgment on the report, pro forma, for the defendant. Exceptions by plaintiff. The case appears from the opinion.</p>

General Assumpsit. Plea, general issue, and trial by jury, June Term, 1875, Powers, J., presiding. The plaintiff introduced a note in evidence, signed by defendant, aud payable to the order of one Mahan, and indorsed in blank by said Mahan and one Elihu Hyde. It was conceded that there was an entire failure of consideration of the note, and the sole question that was submitted to the jury was, whether the plaintiff was a bona-fide holder of the note or not.

<p> Sale. </p> <p>When goods of a specific description are ordered, and which, when received, do not answer the description, if the party giving the order would avail himself of the right to return the goods, he should do so as soon as he has time and opportunity to ascertain the fact.</p>

Trespass for a single sleigh. Pleas, the general issue, and justification as collector of taxes in school district No. 2 in Chelsea, under a rate-bill and warrant for the collection of a tax against the intestate. Defendant offered in evidence the record of the proceedings oi the annual meeting of said district in March, 1868, at which meeting said tax was voted and defendant was elected collector of taxes..

TRESPASS for a lot of live stock, farming tools, &c. Plea, the general issue, and notice of justification under process, and under a mortgage of said property hereinafter mentioned. Trial by the court, December Term, 1875, Powers, J., presiding. Tbo plaintiff proved the taking of the property declared for.

Case in three counts. The first count alleged, that o-n March 1, 1878, Mary J. Judd, of Washington, and her five minor children, were poor and indigent persons, and in need of relief and support, and then had and still have their legal settlement'in said town of Washington, and had become and then were chatgeable to said town as paupers, and were then and there in the care, custody, and keeping of said town as paupers thereof; that by s! 1, c. 20, of the Gen. Sts., it was…

<p> Damages. </p> <p>Defendants were trespassers in taking and driving away plaintiff’s cattle; but the cattle were taken from defendants’ possession on writs of attachment against plaintiff, and subsequently sold, and the avails thereof applied on executions againstplaintiff. Held, that defendants were liable for damages only up to the time of the attachment, irrespective of whether the officer proceeded legally with the property after the attachment or not.</p>

Debt on an administration bond, given by tbe defendant, Al-mon Brainard, of Greenfield, Mass., administrator de bonis non of tbe estate of Austin Brainard, late of Beloit, Wisconsin, deceased, as principal, and tbe defendants Parish and Perrin as sureties.

Case, founded on s. 8, No. 4, of the' Acts of 1869. Plea, the general issue, and trial by jury, June Term, 1875, Redfield, J., presiding Plaintiff claimed to recover damages for the killing of one John Stanton on the 28th of June, 1878, at Walden, by one Snow, while in a state of intoxication from liquor alleged to have been unlawfully sold and furnished to said Snow by the defendant, and claimed that said Stanton was her lawful husband at the time aforesaid.

Indictment for manslaughter. Trial by jury, June Term, 1873, Redfield, J., presiding. The indictment alleged that on the 5th day of June, 1872, at Fersliire, in said county, one Alonzo W. Davis was shot through the body with a pistol loaded with powder and ball, held in the hand of the respondent, and that the said Davis died of the wound at ten minutes past 2 o’clock on the morning of the 6th of said June.

Trustee PROCESS. Trial by the court, December Term, 1874, Powers, J., presiding. Previous to February 20,1874, the defendant, who resided in Washington, had boarded a pauper belonging to that town, at the request of the overseer of the poor, for which the town owed him f59 05. At that time the defendant was owing the claimant that amount or more.

Debt on a constable’s bond. Plea, non est factum, and notice of special matter. Trial by the court, December Term, 1875, Powers, J. presiding. The plaintiff introduced the bond described in the declaration, dated March 5, 1872, signed by the defendant Smith as principal, and the other defendants as sureties.