Volume 50 — Vermont Reports

[In Chancery.] Appeal from the Court of Chancery. The bill alleged, that on September 17, 1872, the orator and the defendant agreed together that defendant should deliver to orator ninety stoves on or before December 1, 1872, at such place in Waterbury, within fifty rods of defendant’s foundry, as the orator might designate, at and for the price of $84 each for forty-three thereof, and $35 each for the remainder thereof, and that the orator should accept and receive the same…

<p>Ejectment for an undivided interest in certain land in Barre. Plea, the general issue, and trial by the court, September Term, 1876, Redfield, J. presiding.</p> <p>The court found that the plaintiff had acquired title to eleven undivided twelfth parts of the premises in question, the defendant continuing to own the residue. But there was no evidence that the defendant had refused to allow the plaintiff to enjoy the premises with her according to his right and interest, except evidence proving that at some time before the suit was brought, the plaintiff’s attorney, at his office in Northfield, made demand upon the defendant in behalf of the plaintiff, for possession of the premises —meaning possession according to plaintiff’s right; to which the defendant replied that she wanted to pay the debt and judgment by means of which the plaintiff had acquired his title, and did not wish to give up the premises. Judgment, pro forma, for the plaintiff for his undivided interest. Exceptions by the defendant.</p> <p>The defendant was' originally seised in fee simple of the land in controversy. Plaintiff acquired title to eleven undivided twelfths thereof by a levy of execution and set-off thereunder. Plaintiff and defendant were therefore, at the time this suit was brought, tenants in common thereof. Lit. ss. 292, 294, 298, 302; 2 Bl. Com. 191, 192 ; 4 Kent Com. 367, 368.</p> <p>The defendant had.never disputed nor denied plaintiff’s title to his part of the premises, nor opposed his possession, nor hindered his peaceable enjoyment. There was no evidence of an actual ouster, without which ejectment cannot be maintained by a tenant in common against his co-tenant. Barnitz’s Lessee v. Casey, 7 Cranch, 456 ; Beading’s Case, 1 Salk. 392 ; Beading v. Boys-ton, 2 Salk. 423 ; s. c. 2 Ld. Raym. 829. Sole and uninterrupted possession by defendant, and enjoyment of all the rents and profits after the plaintiff’s execution levy, are not an ouster. For twenty-six years’ sole and uninterrupted possession by one co-tenant, with enjoyment of all the rent that accrued during that time, without an accounting therefor to the other co-tenant, has been held not to constitute an ouster, there being no adverse possession — no keeping the plaintiff out of possession. Fair claim v. Shaekleton, 5 Burr. 2604. For, “ the possession and seisin of one tenant in common is the possession and seisin of the other.” Barnard v. Pope, 14 Mass. 434 ; Brown v. Wood, 17 Mass. 68 ; Shumway v. Holbrook, 1 Pick. 114; Catlin v. Kidder, 7 Vt. 12; Jackson v. Tibbetts, 9 Cow. 241 ; Clapp v. Bromagham, 9 Cow. 530 ; McKlung v. Boss, 5 Wheat, 116 ; Knox v. Silloway, 10 Me. 201; Parker v. Proprietor of Locks, fc., 3 Met. 91; Taylor v. Cox, 2 B. Mun. (Ky.) 429; Thomas v. Hatch, 3 Sumn. 170 : Olymer’s Lessee v. Dawkins, 3 How. 674 ; Colburn v. Mason, 25 Me. 434; Lloyd v. Gordon, 2 Har. & McH. (Md.) 254, 260; Willison v. Watkins, 3 Pet. 51; Chambers v. Chambers, 3 Hawks, (N. C.) 232.</p> <p>Nor is a refusal by one co-tenant to pay the other his share of the profits, unaccompanied by a denial of title, to be construed as an ouster. To constitute this, a demand by the plaintiff for his particular portion of the premises, and a refusal by the defendant to deliver them up, are necessary. Doe v. Presser, Cowp. 217 ; Peaceable v. Bead, 1 East, 568 ; Doe d. Hellings v. Bird, 11 East, *49.</p> <p>In the case at bar such a demand was never made.</p> <p>The defendant refused to allow the plaintiff to use his share of the premises, and her holding was exclusive. Burton v. MoFarland, 26 Vt. 610 ; Hutchinson, C. J., in Pomeroy v. Mills, 3 Vt. 410.</p> <p>The plaintiff’s interest was obtained by adverse proceedings— the defendant in no way consenting to, nor aiding in, the same, but holding, and continuing to hold adversely, in severalty, and under claim of right, without acknowledgement of, or consent to, a joint interest or proprietorship. This brings the case within the rule in Johnson v. Tilden, 5 Vt. 431.</p> <p>The plaintiff under the statute came into a right to immediate seisin with the defendant. The subsequent holding of the whole in severalty was wrongful, and in itself an eviction. Redeield, J., in Mattocks v. Stearns and Wife, 9 Vt. 326 ; Gen. Sts. c. 70, s. 28 ; Saund. PI. & Ev. 1003 ; 5 Wheat. 124; 4 Kent Com. 370.</p> <p>As the holding began adversely, the burden is on the defendant to show that it was for defendant’s and plaintiff’s joint benefit.</p>

<p>[In Chancery.]</p> <p>Appeal from the Court of Chancery. The bill alleged, that on October 12, 1860, Luther Poland conveyed to Thomas N. Courser, a piece of land in Montpelier, lying on the easterly and the westerly sides of the road leading along the north branch of Onion River; that on the same day Courser and his wife, mortgaged said land to Luke P. Poland, to secure the payment of a note of that date, for $500, and to Zenas Wood, to secure the payment of a note for $750, and that said last-mentioned note and mortgage, were subsequently assigned to said Luke P. Poland, and the mortgage by him discharged of record ; that on the 15th of January, 1864, said Courser conveyed to Lucinda Jones, since deceased, that portion of said land lying on the westerly side of said road, upon condition that she pay said two mortgages, and save said Courser harmless therefrom, to the amount of $1,297; that on the same day, said Jones mortgaged the land thus conveyed to her, to Enos Stiles, to secure the payment of a note of that date for $500 ; that said Jones died testate on July 14, 1869, and that her will was duly probated, and E. V. Randall duly appointed executor thereof; that on March 29, 1870, the Probate Court duly licensed said Randall to sell all the real estate of said testatrix, and that pursuant thereto said Randall did, on November 23, 1870, sell and convey to the orator, by a deed containing the usual covenant of an executor’s or administrator’s deed, the land so as aforesaid conveyed to the said testatrix ; that the orator, on February 3, 1871, by his warranty deed of that date, conveyed to Bart. S. Scribner the land thus conveyed to him; that said Courser, on April 13, 1868, conveyed the land on the easterly side of said road to Medad Wright, and that Wright, on the 17th of April, 1871, conveyed the same to Grovener Y. Paine ; that said five-hundred-dollar note to Luke P. Poland became the property of one Edwin Shattuck, and was paid to him by the said Jones in her lifetime, to wit: on August 22, 1864, by the hand of Moses Holden; that the said Stiles note and mortgage became the property of said Holden about September 11, 1871, and that said Jones, in her lifetime, at various times paid divers large sums of money upon said last-mentioned note, which said sums were endorsed thereon when the same was transferred to the said Holden; that at the March Term, 1873, of the Washington County Court of Chancery, said Holden brought a petition against said Randall, executor as aforesaid, and said Scribner, Wright, and Paine, but not against the orator, to foreclose the said Stiles mortgage, alleging that the note thereby secured had not been paid, and also to foreclose said mortgage from said Courser and wife to Luke P. Poland, alleging that the same had been assigned to him, the said Holden, and that there was a large sum due thereon; that such proceedings were therein had that at the September Term, 1874, of said . court, a decree was entered that the defendants therein pay to the petitioner thei’ein, on or before September 1, 1875, the sum of $1,000, with interest thereon from September 1, 1874 ; that said Holden brought said petition, well knowing that said note secured by the Poland mortgage had been fully paid, and that the parties to said cause, well-knowing that said last-mentioned note had been paid, consented to said decree, and procured and permitted the same to be made, without the production and filing in Court of the notes and securities on which said petition was brought, and in collusion against the orator; that said Wright and Paine, at the September Term, 1875, of said court, brought a bill of complaint against said Scribner, setting forth said several conveyances of said land, and the said Holden’s petition of foreclosure, and the proceedings thereon, and that said Wright had been compelled to pay, and had paid said Holden’s decree, and praying that said Scribner be decreed to pay to them, the said Wright and Paine, or to one of them, the whole sum so paid upon said decree, with interest and costs, or be forever foreclosed, and that said bill of complaint was still pending, and that the orator had been vouched in by said Scribner to defend the same.</p> <p>Prayer, that said Holden be decreed to deliver the said Poland note to the orator, and to make further assurance to the orator in respect to the mortgage securing the same ; that the orator and those claiming under him be declared entitled to the premises conveyed to him as aforesaid, freed from said last-mentioned mortgage and said decree of foreclosure; that an account be taken of the amount due on said Stiles mortgage, and the orator permitted to redeem the same; and that said Bandall, executor as aforesaid, be decreed to pay the orator from the estate of said testatrix, or from his own funds, such sum as the orator should be decreed to pay, to redeem the premises conveyed to him as aforesaid, with interest and costs.</p> <p>Demurrer to the bill for want of equity. Demurrer overruled, decree for orator, according to prayer of the bill, and appeal by defendants, March Term, 1877.</p> <p>The orator was not a proper party to the petition for foreclosure, brought by Holden against Randall and others. He had no interest in nor possession of the land. Hence he cannot attack or modify the decree therein obtained. ' Soule v. Albee, 31 Vt. 142 ; Shotwell v. Taliaferro, 25 Miss. 105 ; Barton v. Kingsbury, 43 Vt. 640.</p> <p>The decree in favor of Holden was made in open court by agreement; all parties being represented ; and it is good between those parties.</p> <p>By paying within the time limited by the decree, Wright redeemed the premises, and thereby the decree was vacated. The most that Wright can claim is to be subrogated to Holden’s rights. Bailey not having been made a party by Holden, can, if entitled to be made a party, be joined with Scribner, and make defence against Wright in the petition now pending against Scribner. Bullard v. Leaeh, 27 Vt. 491; Wheeler v. Willard, 44 Vt. 640 ; Hubbards. Wood, Washington Co. Supreme Court, Aug. Term, 1876.</p> <p>If it be conceded that Wright, by paying the amount of the decree within the time limited, vacated the decree, it follows that Holden has now no interest in the premises, which in equity is vested in Wright. But he can have no greater claim than Holden had; and if it be true that Wright, Paine and the other defendants consented to the decree in collusion against the orator, it may be a reason why Wright cannot recover at all against Scribner or the orator. But in no court can Wright recover a greater sum than was due on the mortgage. It follows that the orator has not been affected by the foreclosure complained of,</p> <p>A court of equity cannot grant the prayers of the bill as against Holden.</p> <p>The Poland mortgage was extinguished by the payment of the note thereby secured. The defendant Holden, knowing that that mortgage had been extinguished, fraudulently set it up, with the Stiles mortgage, in his petition for a foreclosure, and obtained a decree thereupon. The orator, by reason of his covenants in his deed to Scribner, is in a position to be affected by that fraud. Particular persons must not transact mala fide in respect to third parties who stand in such a position as to be affected by the consequences of their transactions, and, if they do, equity will relieve. Chesterfield v. Janssen, 2 Yes. 125 ; Kerr Fraud, 195 ; 1 Story Eq. Jurisp. s. 383.</p> <p>A decree obtained by fraud binds no court, and the fraud may be alleged in a collateral proceeding. Kerr Fraud, 293.</p>

<p>Transient Pauper. Gen. Sts. c. 20, ss. 4, 13.</p> <p>In assumpsit for the support of a transient pauper, by the town that had rendered aid, against the town of the pauper’s settlement, it appeared that the pauper when suddenly taken sick was at work in plaintiff town under a contract to work during the season of making butter and cheese ; that, the pauper’s father being dead, the pauper, for a number of years before suit brought and before 1872, had “made it her home,” at intervals and when not at workout, with her'mother, who had remarried, and lived in defendant town ; that after 1872, she resided in like manner with her sister, who had married, and lived in another town. It did not appear that she had acquired a right to a home at either of those places by virtue of any contract ; nor that she had either a room or furniture at either of them; but that her so returning to them was by courtesy of her mother and sister and their husbands. It appeared that when she went to work in plaintiff town, she took her trunk with her, leaving only a few articles of apparel at her sister’s. Held, that as it did no appear that there was any place to which the pauper had by contract a right to return, nor that she had the animus revertendi, she had come to reside, within the meaning of s. 4, c. 20, Gen. Sts.</p>

<p>Trespass qua. clau., with a count in case. Special plea to the whole declaration, and demurrer thereto. The court, Redfield J., presiding, sustained the demurrer, and adjudged the plea insufficient ; to which the defendant excepted.</p> <p>The first count alleged that the defendant, on <fcc., and on divers days between that day and the day of the date of the writ, with force and arms, broke and entered the plaintiffs’ close, being their home farm, so called, lying next to and adjoining certain lands occupied by the defendant, and tore down and destroyed the division fence between the land of the plaintiffs and the land occupied by the defendant as aforesaid ; and with horses, cattle and sheep of him, the said defendant, trod down, ate, destroyed, and consumed the grass, corn, grain and herbage of the plaintiffs so growing on their said close, and deprived the plaintiffs of the use, advantage, and profit of said close. The second count was substantially like the first.</p> <p>The third count alleged that on, &c., and from that day to the day of the date of the writ, the plaintiffs were owners, and in possession and occupation, of certain land and premises commonly called the home farm of the plaintiffs, and the defendant was in possession and occupation, during the same period, of certain land adjoining the same; that it became and was the duty of the defendant to build and maintain a division fence, a part of the distance between the lands- so possessed and occupied by the plaintiffs, and the lands so possessed and occupied by the defendant, during all of said period; but that from, &c., to the day of the date of the writ, the defendant had not regarded nor performed his said duty in the premises, but had wholly neglected and refused so to do, and had not built nor maintained a division fence as aforesaid, nor any part thereof, but had wholly neglected and refused so to do, whereby the cattle, horses, and sheep of the defendant escaped from the land of the defendant, and entered upon the land of the plaintiffs, and ate up and destroyed the herbage and grass thereon being and growing, and wholly hindered the plaintiffs in, and deprived them of, the use, benefit, occupation, and advantage of their aforesaid lands ; and whereby during all said period the cattle, horses, and sheep of the plaintiffs, solely by reason of said fault and neglect of the defendant, escaped and ran away from the land and possession of the plaintiffs, to the plaintiffs’ great loss and damage.</p> <p>The plea alleged that the fence of the plaintiffs on the division line between plaintiffs’ and defendant’s lands, was not, during any of the time in the declaration mentioned, a legal fence, as prescribed by statute, through its whole distance; but that there were many places therein that plaintiffs were bound to put and keep in good and sufficient repair during the whole of said time that were wholly defective, out of repair, and insufficient.</p> <p>The plea is a sufficient answer to the first two counts, if not to the whole declaration. But if insufficient, the declaration is also insufficient by reason of a misjoinder of counts. The first and third counts cannot be for the same cause of action. It cannot be pretended that a man’s tearing down the plaintiffs’ fences, and laying their field open, and his not repairing his own fences, and thereby letting the cattle escape, are the same cause of action. Thus the counts cannot be joined. Gen. Sts. c. 83, s. 14. Advantage of the misjoinder can be taken by demurrer, and under this demurrer as well as it could have been under demurrer to the declaration. 1 Chit. PL 205, 206.</p> <p>The third count is not good. It is not good at common law, as the common law gives no such remedy. It is not good under the statute, as it makes no allusion to the statute. Montgomery v. Edwards, 45 Vt. 75. It is also too general. It contains no allegation that the defendant did not choose to let his land lie vacant and common; and that omission is fatal. As the count is defective and the judgment is entered on all the counts, the judgment must be reversed. Kinniers v. Stiles, 44 Vt. 351.</p> <p>The judgment of the County Court sustaining the demurrers should be affirmed. The fact set forth in the plea does not constitute a defence to the declaration or any count thereof. Saxton v. Bacon, 31 Vt. 540; Q-ipson v. Bump, 30 Vt. 175; Keith v. Bradford, 39 Vt 34.</p> <p>The declaration is sufficient. 2 Chit. Pl. 779-863.</p>

Book Account. The anditor reported in substance as follows : The plaintiff seeks to recover on one item of account the sum of $48 with interest thereon, for teaching school. Held: the plaintiff went to Montpelier and there worked one week for wages.

<p>Trespass for a circular saw-mill. Plea, the general issue, with notice that defendant took the mill on execution in favor of George Nichols, from the possession, and as the property, of D. R. Eisk. The plaintiffs claimed title to the mill under a conditional contract of sale evidenced by a writing consisting of three notes, one for $195.07, and two for $195 08 each, signed by said Eisk, dated October 15, 1871, and made payable to the plaintiffs, the first on demand, and the two others in six months and one year respectively, to which was appended a memorandum in these words: “ The above notes are given for one circular saw-mill, which is to be and remain the property of Cole, Bugbee & Co. until said notes are paid.” It appeared that said writing was made on Dec. 21, 1871, and recorded in the town clerk’s office on the 22d.</p> <p>The plaintiffs offered to prove by John B. D. Leavitt, one of the plaintiffs, that the notes and contract were ante-dated October 15, because that was the time from which the notes were to bear interest. To this testimony the defendant objected, for that the writing was the best evidence ; but the court admitted it, to which the defendant excepted. The witness testified that at some time prior to September 9, 1871, Cole, Bugbee & Co., who were manufacturing circular saw-mills at Lebanon, N. H., made proposals to said Fisk to sell him a mill for the sum specified in said' writing, he to take the mill on trial for thirty or sixty days, but the mill to remain the property of the vendors until paid for; that on September 9th, the mill was carried to Northfield, where Fisk lived, in the name of the plaintiffs, and on September 11th, taken from the depot by Fisk with the plaintiffs’ consent, and put up in Fisk’s mill, and there used until December 21, 1871, when Leavitt went to Northfield and procured the writing relied upon to be executed in pursuance of the original agreement. There was no evidence tending to show that either Nichols or the defendant had any knowledge of said contract except what they had learned from what appeared of record ; but it appeared that his attorney drew the contract and knew at that time of its tenor and date and the time of its execution, and that he bought the mill at the sale by the defendant in August, 1875, and procured the defendant to remove it from Fisk’s premises.</p> <p>The defendant contended that the copy of the record of the contract was the best evidence of the terms of the contract, and that parol evidence was not admissible to explain or vary the contract appearing of record; and that the plaintiffs could not recover, for that Fisk had possession of the mill under the contract more than thirty days before the memorandum was recorded. The court, at the September Term, 1876, Redfield, J., presiding, ruled that the written contract was conclusive upon the parties, but that it was permissible to prove by parol when it was in fact executed, or that it was ante-dated for an innocent purpose mutually understood ; to which the defendant excepted.</p> <p>The contract was not seasonably recorded. Acts .of 1872, No. 51.</p> <p>This statute was not made for the benefit of either party to the contract, but for the benefit of attaching creditors and subsequent purchasers ; and when parties make a memorandum and cause it to be recorded, they cannot vary its terms by parol. A certified copy of the record, or the original contract, is the only evidence to show the terms of the contract, as between the plaintiffs and this defendant.</p> <p>The plaintiffs are estopped, as against this defendant, from denying any part of the record. Sherwin v. Bugbee, 17 Vt. 337; Adams v. Crowell, 40 Vt. 31; Camerons. School District, 42 Vt. 507 ; Eddy v. Wilson, 43 Vt. 362.</p> <p>The contract of sale was actually made and Eisk became a purchaser, December 21, 1871, and the contract was duly recorded on the following day. Acts of 1870, No. 63.</p> <p>Parol evidence was properly admitted to show the actual date of the contract, and that the date written was not the actual date ; for the time when a contract is made, is no part of the contract itself. Bennett’s Vt. Just. 63. Besides, in this case the contract was ante-dated for an innocent purpose mutually understood. Chit. Bills, 170, n.; Richter v. Selin, 8 S. & E. 425.</p> <p>The only question is, When was the mill delivered to the purchaser with reference to the time the contract was recorded ? The date of the contract is important only as indicating the time of delivery. The statute requires a memorandum to be recorded within thirty days after the delivery of the property to the purchaser, which may or may not be within thirty days after the date of the contract. Here, the written contract does not purport to give the date of the delivery of the mill, and there is no question before the court as to the admissibility of evidence of the date of delivery.</p>

Ejectment, returnable to the September Term, 1875. Plea, the general issue, and trial by the court, March Term, 1877, Redeield, J„ presiding. It appeared that Jared Dodge was the owner of the demanded premises at his decease, March 1, 1859, and that the plaintiff was his son and one of his several heirs, and, as such, claimed to recover in this suit.

[In Chancery.] Appeal from the Court of Chancery. The bill alleged that in 1873, George T. Wiswell, as agent of the orator, made a contract with P. T. Robrchard by which the latter was to scatter a quantity of railroad ties along the route of the Montpelier & Wells River Railroad, from the Lake House to the Summit, for the sum of $541.20 ; that said Robrchard afterwards sub-let the whole of said contract to Charles Seveney, one Ober, since deceased, and another person whose…

<p>[In Chancery.]</p> <p>Appeal from the Court of Chancery. The bill alleged that the orator began to have dealings with the defendant in 1868, and, from that time to 1871, had dealings with him to the amount of many thousand dollars, and that the defendant had at times had large sums of the orator’s money in his hands; that prior to 1871 the defendant, at the orator’s request, purchased a mortgage on a piece of woodland in Berlin, called the Perley lot, containing about one hundred and forty acres, worth at least $25 per acre, said mortgage being for the sum of $750, which, with interest thereon, amounted in July, 1870, to $808.50; that the orator believed the defendant was at that time indebted to him more than that sum; that defendant purchased said mortgage at a discount of $25, and charged the whole sum to the orator; that about May 9, 1871, one Harvey Tilden recovered judgment against the orator for about $2,000, and threatened to sell the orator’s property on execution, whereupon the orator called on the defendant to assist him, which the defendant agreed to do in the manner following : the defendant agreed, in consideration of a deed of said land from the orator, to cancel said mortgage thereon, credit the amount of the mortgage note to the orator, pay the orator the sum of $1,500 to apply on said attachment, and, if the orator could sell said land for more than the sum so allowed, with interest thereon, and pay for the defendant’s trouble, to allow the surplus to the orator; that in pursuance of said agreement the orator conveyed said land to the defendant by deed of warranty on June 14, 1871, but that the defendant wholly refused to perform said agreement on his part, and never gave the orator any writing for said land, and never assumed any new liability for the orator therefor, but claimed to hold said land to secure him against the orator; that afterwards the orator had an opportunity to sell forty acres of said land for $1000, and went to the defendant to have him convey the same and take the money therefor, which he refused to do, claiming to be the owner thereof, and also an opportunity to sell timber thereon, which the defendant would not allow to be cut; that by reason ofthe defendant’s failure to perform his said contract, the orator had been put to great cost and trouble : that the defendant entered upon said land under said deed thereof, and cut and sold wood therefrom without consulting the orator, but at the time the bill was filed, claimed that said deed was only a mortgage to secure a general balance; that the defendant had mortgages on all of the orator’s land, and refused to apply said $1,500 on any of them, but had commenced suits on the notes and to foreclose said mortgages, and had attached property, and by holding the orator’s money and bringing a multitude of suits, was trying to ruin the orator. Prayer, for an injunction, restraining the defendant from taking judgment on said notes, and from perfecting a decree of foreclosure on said mortgages, and for an account of said dealings.</p> <p>The answer admitted that the orator was indebted to the defendant to a large amount, which the defendant had tried to collect by suits and petitions for foreclosure ; denied that the defenddant had large sums belonging to the orator in his hands, but alleged that the orator had been at all times indebted to the defendant ; admitted that he bought said mortgage, and that he still held the mortgage note, but denied that he bought it at the orator’s request; admitted the conveyance of said land to the defendant as alleged, but averred that the deed whereby it was conveyed, though absolute upon its face, was in fact given as security for what the defendant then was, or thereafter might be,'owing to the defendant; denied that in consideration of said agreement the defendant agreed to give the orator $1,500, or any sum, but alleged that the defendant agreed that if the orator paid the defendant what he then owed, or might thereafter owe him, he would re-deed said land to the orator, which he had always been ready and willing to do ; denied that he had ever opposed or prevented any sale of said land on any terms satisfactory to the orator, provided the defendant could be paid its value, or the amount of the orator’s said indebtedness ; denied the prevention of the sale of wood from said land; and alleged that the defendant had the orator’s consent for the sale of such wood therefrom as the defendant had sold, and that defendant had credited the proceeds thereof on the orator’s account.</p> <p>Reference was made to master, in accordance with the prayer of the bill, who reported, in substance, that on June 13, 1871, the defendant having purchased and, being the holder and owner, of a note secured by mortgage on the land described in the bill, and having also become holden for the payment of large sums due or to fall due on the orator’s outstanding obligations, the orator conveyed said land to the defendant by a deed of that date, in form a deed of warranty; that at the time of the delivery of said deed to the defendant, no writing passed from him to the orator, nor did the defendant cancel any obligation nor release any debt due him from the orator; that from the testimony, a part of which was objected to by the orator, for that parol evidence was not admissible to vary a deed, they found that the deed of said land to the defendant, though absolute in form, was intended by the parties thereto as security to the defendant for existing or future indebtedness of the orator, it being agreed that whenever such indebtedness should be paid, the defendant should redeed to the orator.</p> <p>The masters allowed annual interest on the notes that the defendant held against the orator, but not on the notes that the defendant took up for the orator and charged to him on account. They also disallowed several items of claim of each of the parties. The orator excepted to the report, for that the finding that the deed to the defendant was in effect a mortgage was against the weight of evidence, and for that that was a question for the court, and not for the masters. The cause was heard at the March Term, 1877, on bill, answer, traverse, testimony, and masters’ report, and the court, Redfield, Chancellor, ordered and decreed that the deed to the defendant was, in equity, a mortgage ; that the masters’ report be accepted, and all exceptions thereto overruled, except as to the matter of interest; that the master’s report was referred to the clerk to compute interest on the notes, according to their tenor; that yearly balances with simple interest be struck, beginning with March 1,1868, on what had been paid and received by defendant for and from the orator; and that such yearly balances ■in favor of the orator were to be applied in satisfaction, first, of the interest, and, secondly, of the principal of a note of March 1, 1867, held by defendant; that the sum found due in equity, by the masters as modified by the recast of interest, with interest thereon, be the sum for which defendant have decree in his foreclosure against the orator ; that the injunction be dissolved'; and that defendant recover his cost in this proceeding. Appeal by the orator.</p> <p>The decree foreclosing the mortgage was erroneous. There could be no such decree, except upon a cross bill.</p> <p>The finding of the masters that the deed was in effect a’mortgage, was founded on a mistake of facts. Besides, that was a matter for the court, and not for the masters.</p> <p>The court should not give the defendant costs, as the orator has prevailed in part as to defendant’s claims.</p> <p>. The masters properly found that the deed was in effect a mortgage. Campbell v. Worthington, 6 Vt. 448 ; Baxter v. Willey, 9 Vt. 276; Wright v. Bates, 13 Vt. 341; Hills v. Loomis, 42 Vt. 562.</p>

Book Account. The auditor reported, in subtance, as follows : In October, 1873, the defendant went to Willsboro, N. Y., on the line of the New York & Canada Railroad, to keep a shanty, and board men at work on said railroad.

Trespass and trover for a quantity of wood. The defendants pleaded the general issue, and gave notice setting forth, in substance, that the wood in question was cut on a farm upon which the defendant Jackman, as administrator of Langdon C. Whee-lock, held a mortgage, executed by Calvin Carpenter, who was in possession as mortgagor, and who cut the wood after the law day was passed and condition thereof broken, and after the title to the land had become absolute in the…

This was an appeal from an order of removal of one Ellen Nichols, a pauper, her family and effects, from the town of North-field to the town of Brookfield. Trial by the court at the March Term, 1877, Redfield, J., presiding, upon the following agreed statement of facts: The pauper was legally married to Oliver F. Nichols, on August 17, 1872, and is still his wife, and the child, Forrest 0. Nichols, named in the warrant and order of removal, is the issue of said marriage.

Petition for a new trial. The original cause was tried at the September Term, 1874, the trial beginning on October 2d, and the testimony closing October 6th. The court adjourned on November 23d, and judgment was rendered as of that day. The petitioner thereupon brought a petition like the present one, and for the same cause, which was heard and dismissed at the General Term, 1876, the court adjourning on November 23.

[In Chancery.] Appeal from the Court of Chancery. The petition alleged that on May 8, 1866, Luke Eastman executed a mortgage of certain land to George P. Howe, conditioned for the payment of said Eastman’s four promissory notes of that date, for $250 each, payable in five, six, &c. years, with interest annually, and on the same day executed another mortgage of the same land to Martin P. Richardson, conditioned for the payment of said Eastman’s eight promissory notes of that…

<p>Petition for Mandamus. The petition alleged, in substance, that in 1877, Lucia H. Cleveland, of Windsor, of whom the petitioner was an heir-at-law, died testate, having made the petitioner one of her legatees, and in her will named J. B. Farnsworth as its executor; that soon after her death her said will was delivered to the Probate Court for the District of Windsor, whereupon the court appointed the 11th day of June, 1877, for its probate, and ordered the usual -notice to that effect; that on that day the petitioner and others who were interested in the estate of the said Lucia, appeared before the court and opposed the appointment of said Farnsworth as executor and the issuing of letters testamentary to him, and that testimony was heard relative to the proof of the will, but that the court continued the hearing until June 14th; that on that day, the said Farnsworth having filed a bond conditioned for the faithful discharge of his duties, the court appointed him executor of said will, and issued to him letters testamentary thereon, whereupon the petitioner, on July 3d, feeling himself thereby injured, filed notice of appeal therefrom to the then next stated term of the County Court; and that after due deliberation, the court, on July 14th, refused to allow said appeal, claiming and protending that the petitioner was not in law entitled thereto. The petition further alleged that the petitioner and the said estate were, as he believed, greatly injured by the refusal of said appeal. Prayer, for mandamus, to compel the Probate Court to allow said appeal.</p> <p>The petitionee answered, alleging, in substance, that after the examination of witnesses as to the proof of the will, at the hearing of June 11th, the petitionee announced to the parties present that he should allow the instrument presented as the will of the decedent, whereupon the counsel for the petitioner said that an appeal would be taken from such allowance, and queried as to the appointment of a special administrator, and whether some one could not be agreed upon who would be acceptable to all parties, upon which the petitionee stated that in the absence of any good reason to the contrary, the person named as executor in the will would be appointed special administrator, when the counsel for the petitioner said that if he was to be appointed there would be no appeal from the allowance of the will, but that there might be an appeal from the issue of letters testamentary to the executor named ; that, though it appeared that the petitioner wanted some one other than the person named as executor, appointed to administer upon the estate, yet, as it was not pretended that he was incompetent or unfit, his competency was taken for granted, and the matter was continued, to afford an opportunity to the person named as executor to file a bond as required by law, which he did on June 14th, when the will was probated, and letters testamentary issued in conformity to s. 1, c. 50, Gen. Sts.; that on July 3d the petitioner filed an application for an appeal from the appointment of the executor, and that the petitionee denied the .appeal on July 14th. The answer insisted further, that no just construction of the statute relating to appeals from the Probate Court would authorize an appeal here, as there was no “ order, sentence, decree, or denial” in the act of issuing letters testamentary in strict conformity to the clear and positive directions of the statute, to the person appointed by the testator.</p> <p>An appeal may be taken from any order or decree of the Probate Court, whether discretionary or not, provided the matter is finally disposed of. Adams v. Adams, 21 Vt. 162; Gen. Sts. c. 48, s. 30. But not from a mere interlocutory order. Timothy v. Farr, 42 Vt. 43. Thus an appeal may be taken from the appointment of an executor or administrator. Shumway v. Shumway, 2 Vt. 339. The Legislature so understood it, as it provided that no appeal should be taken from the appointment of a special administrator. Gen. Sts. c. 51, s. 5. Here the appointment was made under Gen. Sts. c. 50, s. 1. Appeal may be had under Gen. Sts. c. 48, s. 30.</p> <p>The appeal is from the appointment of the executor. But there was no such order, sentence, decree or denial, within the meaning of s. 30, c. 48, Gen. Sts., as would give the right of appeal. The Probate Court did not appoint the executor. The executor was appointed by the testator. Toller Executors, 11; Fonb. Eq. 556 ; The King v. Raines, 3 Salk. 162. The court acted not judicially, but ministerially. The letters were merely the executor’s commission, and not his appointment. Drew v. Russell, 47 Vt. 250.</p> <p>The statute was imperative upon the court. Gen. Sts. c. 50, s. 1. An issue of letters testamentary could have been enforced by mandamus. The King v. Raines, 1 Salk. 299; Marbury v. Madison, 1 Pet. 267.</p> <p>But if the appeal was illegally denied, this writ is not the remedy. The petitioner’s remedy is given by s. 5, c. 38, Gen. Sts. Mandamus does not lie where there is another appropriate remedy. In re White River Bank, 23 Vt. 478 ; Bradish v. Redway, 35 Vt. 424; Free Press v. Nichols, 45 Vt. 7 ; Rex v. Bishop of Chester, 1 T. R. 396 ; In re Presson Farwell, 2 N. H. 123.</p>

Book Account. The auditor reported substantially as follows : The account upon which the plaintiff seeks to recover, is for a suit of clothes, and various articles of clothing. The defendant did not deny the receipt of any of the articles charged, except a vest and a box of cuffs, and those items I disallowed for want of proof.

<p> Mortgage. Subrogation. </p> <p>H. was first mortgagee, and after liis death, his executor brought petition to foreclose, making W. and K., second mortgagees, parties defendant, and procured a decree that unless the mortgagor paid the decree by April 1st, and in default thereof, W. and K. by April 21st, their several equities should be foreclosed. On April 11th, W. paid the decree to the clerk, the mortgagor having made default therein, and the clerk gave him a certificate of such payment. To a bill by W’s administrator against the mortgagor setting forth the foregoing facts, and praying for foreclosure of tlie first mortgage, the defendant interposed a motion to dismiss, alleging that at the time W. made such payment, he had a petition pending for the foreclosure of the second mortgage, in which proceedings W’s claim on account of such payment became merged. Defendant also pleaded to the same effect. The court treated the motion its waived by the plea, and entered a decree of foreclosure. Held, that as W. paid, not as a volunteer, but under an order of court, he was subrogated to the rights of H., and that the motion was properly overruled, and the decree without error.</p>

<p>Ejectment for land in Morristown. Plea, the .general issue, and trial by jury, April Term, 1877, Powers, J., presiding.</p> <p>The plaintiff introduced a certified copy of the record of a deed of the demanded premises from Elisha Dike to the intestate, Zoroaster Dike, dated March 1, 1855, with testimony tending to show that about 1845, the intestate went on to said land, tapped about eighty maple trees, and enclosed about twenty or twenty-five acres of the same with a slash fence; that he continued to carry on the sugar place, and to cut wood and timber within and near said enclosure on said land nearly every year down to the time of his death, which occurred December 6, 1868 ; that in 1855, he built a sugar shanty on said land, and made a clearing of about half an acre within said enclosure; that during all that time his son, Edwin H. Dike, who was born in February, 1830, worked with him on said land, except four years when he lived away from home, but in the same neighborhood ; that about 1861 he made another clearing of an acre or more within said enclosure ; that down to the day of his death, he did acts of possession on, and claimed the land as his own, and that after his decease, his son, the said Edwin EL, occupied said land down to September 5, 1874:, when he quit-claimed it to the defendant. It further appeared from the plaintiff’s evidence, that the land in question was all the property left by the intestate at his decease; that it was worth about $200 ; that there were no debts against the estate; that he left a widow, a daughter, and said son, who were all living at the time of trial, and that no demand was made for the premises, but that defendant was in possession.</p> <p>Said Edwin H. was improved as a witness by the plaintiff, and in the course of his examination in chief,'he was asked under whose claim of right he occupied said land after his father’s death. To that question the defendant seasonably objected, but the objection was overruled, and the witness answered that he occupied under the same right as his father did. To that ruling the defendant excepted.</p> <p>The testimony on the part of the defendant tended to show that in 1855 the intestate, who then owned land adjoining the land in question, deeded the same, and gave all his property, including his possessory interest in, or right to, the land in question, to his son Edwin EL, who ever after occupied said promises in his own right, the intestate acknowledging his son’s right thereto, and occupying in his interest and for his benefit; that that gift or abandonment was not in writing, but was upon consideration of the support of the intestate and his wife during their natural lives. The plaintiff’s testimony tended to controvert the fact of gift and abandonment by the intestate, and possession by the son in his own right.</p> <p>The defendant introduced a quit-claim deed dated January 18, 1851, from Thomas Waterman and others to N. P. Sawyer, conveying, with other land, the land in question, and a quit-claim deed dated July 20, 1854, from N. P. Keeler and others to V. W. Waterman, conveying said land with other land, and a quit-claim deed dated October 4, 1854, from R. S. Page, guardian, and John 0. Page, guardian, to said V. W. Waterman, conveying said land with other land, and a quit-claim deed dated March 26,1857, from Y. W. Waterman to J. C. Noyes, R. S. Page, and W. P. S. Noyes, conveying, with other land, an undivided three fourths part of the land in question. But the defendant gave no evidence of any possession of said land by any of the parties holding the Noyes-Waterman title, or by their grantors, except evidence that in 1848, one Roswell Dike signed a written agreement to occupy for Thomas Waterman, but there was no evidence that he did so occupy it.</p> <p>The defendant’s evidence tended to show that he went into possession under his deed from Edwin H. Dike, and that while he was in possession, Heman A. Waterman, the agent of said parties, ordered him off, whereupon the defendant and said Heman had a talk about their title, and about the defendant’s buying the Noyes-Waterman title, but that no conveyance was made. There was no evidence that the defendant waived or surrendered his right under his deed from said Edwin H., or acknowledged the title claimed by said Heman, nor was any contract shown by which he held or was to hold in acknowledgment of said Heman’s title, but the defendant testified that said Heman permitted him to remain in possession.</p> <p>The defendant offered himself as a witness generally, and offered particularly to testify, the said Edwin H. having testified against him, that when he took his deed from him, he made contradictory declarations to him as to his title and how he acquired it. The court ruled that the defendant was not a witness generally, but that he was a competent witness to all of the declarations of Edwin made at the time the defendant took his deed, and to all declarations of Edwin as to his title or claim of title, since the death of his father; to which both parties excepted.</p> <p>After the testimony was closed, the defendant asked the court to direct a verdict for him, on the following grounds, namely: 1. Because an administrator cannot maintain ejectment against an heir or his grantees. 2. Because from lapse of time between the death of the intestate and the appointment of the administrator, the administrator’s interest would be presumed to bo extinguished ; 3. Because the defendant having been suffered to remain in undisturbed possession from September 6, 1874, to May 10, 1876, before suit was commenced, the administrator’s interest would be presumed to be extinguished; 4. Because no demand was shown. But the court refused ; to which the defendant excepted.</p> <p>The defendant requested the court, among other things, to charge the jury as follows : 1. That the intestate, before ho had color of title, could hold by adverse possession no further than he actually occupied by inclosure ; and that to acquire title to the whole lot, there must have been fifteen years’ continuous adverse possession after the date of his deed from Elisha Dike ; 2. That Edwin H. Dike’s possession after his father’s death, could not be tacked to that of his father, to make a perfect title by fifteen years’ adverse possession; 3. That if the jury found a. perfect possessory title in Waterman and others, and that the defendant was in possession under an arrangement with them and by their permission, then the plaintiff could not recover. The court charged in accordance with the first request; and as to the second request, charged that in the absence of any contract, the possession of Edwin H. would be presumed to be for the benefit of the estate ; that if he had no right there except by heirship, his possession, in the absence of any showing to the contrary, would bo presumed to be in the right of his father’s estate, and in the right of the heirs of the estate, and could be added to that of his father to make the requisite fifteen years’ continuous adverse possession, necessary to make a perfect title; and declined to charge in accordance with the third request, but told the jury that the defendant could not set up a title in a stranger, to defeat the plaintiff’s action, unless he connected himself with that title by some proper conveyance in writing, or otherwise, as holding under that title, and ruled that there was no evidence in the case to show any connection of the defendant with the Noyes-Waterman title.</p> <p>To the refusal to charge as requested, and to the charge as given, the defendant excepted. Verdict and judgment for plaintiff.</p> <p>An administrator cannot maintain ejectment against an heir or his grantees, when there arc no debts against the estate. Hub-hard v. Rieart, 3 Vt. 207 ; Cushman v. Jordan, 13 Vt. 597 ; Abbott v. Pratt, 16 Vt. 626 ; Buck v. Squires, 22 Vt. 484; Hunt v. Payne, 29 Vt. 172; Cox v. Ingleston, 30 Vt. 258; Roberts v. Morgan, 30 Vt. 319; Austin v. Bailey, 37 Vt. 219. From lapse of time between the death of the intestate and the appointment of the administrator, the administrator’s interest will be presumed to be extinguished. Cushman v. Jordan, 13 Vt. 597 ; Hubbard v, Rieart, 3 Vt. 207.</p> <p>A demand was necessary before suit brought. Chamberlin v. Donahue, 41 Vt. 306. The refusal to charge in accordance with the second request was erroneous. The heir upon the death of the ancestor has a vested interest in the estate that he may immediately convey by deed. Hubbard v. Rieart, 3 Vt. 207 ; Hyde v. Barney, 17 Vt. 280; Austin v. Bailey, 37 Vt. 219.</p> <p>The rule is that the possession of the heir may be added to that> of the ancestor to make the requisite time to perfect title by adverse possession ; but that perfects the title in the heir. The presumption is, if any, that the heir is holding for himself and his co-heirs, if any, and not for the estate. 3 Washb. Real Prop. 126, 130; Holton v. Whitney, 30 Vt. 405.</p> <p>It is unnecessary for an administrator to intercede to protect the rights of the widow. Gen. Sts. c. 55, s. 7. But here it will be presumed that the widow has waived her rights.</p> <p>Possession of land is equivocal, and must be accompanied with intention, in order that its legal consequences may be determined. Thus the possessor’s record title, his payment of taxes, his declarations, and acts while in possession are admissible to show by what claim he is in possession. Therefore the testimony of Edwin H., who was his father’s tenant, was admissible. 1 Greenl. Ev., s. 108; Brown v. Fdson, 22 Vt. 857.</p> <p>The defendant could not be a witness generally. Gen. Sts. c. 26, s. 24 ; Ford’s Fxrs. v. Cheney, 40 Vt. 153. He was not a competent witness to the statements of Edwin H. because they took place before the plaintiff was appointed administrator. Ford’s Fxrs. v. Cheney, 40 Vt. 153.</p> <p>The administrator can maintain ejectment. Austin v. Bailey, 37 Vt. 219 ; Gen. Sts. c. 57, s. 1, c. 52, ss. 5, 6, 14; Boardman v. Bartlett, 6 Vt. 631; Dunbar v. Dunbar, 3 Vt. 422.</p> <p>The defendant claimed to hold the lot in his own right, and was therefore not entitled to notice. Campbell v. Bateman, 2 Aik. 179; Clapp v. Beardsley, 1 Vt. 151.</p> <p>The second request was properly denied and the charge as given was correct. The possession of Edwin H. inured to perfect the title of his father. Austin v. Bailey, 37 Vt. 219; Ames v. Beclcley, 48 Vt. 395; 3 Washb. Real Prop., 130.</p> <p>Defendant’s third request was properly denied and the charge as given was correct. By Gen. Sts. c. 40, s. 6, the plaintiff in ejectment “ recovers on the merits according to his rights.” Defendant must connect himself with the Noyes-Waterman title by some conveyance known to the law. Perldns v. Blood, 36 Vt. 273 ; Stacy v. Bostwick, 48 Vt. 192.</p>

<p> Evidence. Charge. </p> <p>Defendant traded for a mare on which, plaintiff had a lien for purchase-money. Plaintiff found her out of defendant’s possession, and took her into his own. Afterwards he let defendant take her on a promise, as plaintiff alleged, to pay said purchase money. In assumpsit on that promise, defendant offered evidence to show that the value of the mare at the time of the alleged promise was less than the sum alleged to have been so promised. Held, admissible upon the question of whether such promise was made.</p> <p>Defendant claimed that before he traded for the mare, plaintiff’s vendee had procured plaintiff’s license to sell. The court charged that the case turned upon the question of whether or not such license was given, and that if it was, the verdict should be for defendant. Held, erroneous, as it left it to be inferred that otherwise the verdict should be for plaintiff, without regard to whether the alleged promise was made, or not.</p>

<p>Trespass and trover for five cows and other chattels. Plea, the general issue, and trial by the court, April Term, 1877, Powers, J., presiding.</p> <p>The plaintiff introduced evidence tending to show that on July 17, 1873, he brought an action against James Godfrey, of Wolcott, to recover a debt of about $200, and on September 7, obtained judgment therein, and took out execution, which he caused to be levied on the property for which he sought to re'cover in this action, which was all of Godfrey’s attachable property, whereupon the property was sold at sheriff’s sale, and the plaintiff became the purchaser thereof.</p> <p>It appeared that on August 9, 1875, said Godfrey made application for aid to the defendant, who then, and at the time of trial, was overseer of the poor of the town of Wolcott, and was by him taken as a pauper chargeable to that town ; and that at the same time the defendant, with Godfrey’s consent,, took the property in question as partial indemnity for the expense of Godfrey’s support.</p> <p>The defendant offered to prove that plaintiff’s judgment and the subsequent proceedings thereon were void as against Wolcott, under s. 32, c. 113 of the Gen. Sts., and claimed also that the town had a right to impeach the same for that at the time the judgment was rendered said Godfrey was likely to become chargeable to said town. But 'the court ruled that the town could not make such defence, and excluded the evidence ; to which the defendant excepted.</p> <p>It appeared that the officer advertised the property to be sold at Hubbell’s hotel in Wolcott, and on the day advertised, adjourned the sale from said hotel to the premises occupied by said Godfrey, a private farm-house. The defendant insisted that the proceedings of the officer in selling the property were for that reason irregular. But the court ruled otherwise, and rendered judgment for the plaintiff; to which the defendant excepted.</p> <p>The evidence offered to impeach the judgment should have been admitted. Our statute against fraudulent conveyances, Gen. Sts. c. 113, s. 32, is broad enough to cover this case. It is more comprehensive than 13 Eliz. c. 5, which declares void every conveyance, etc., made with intent to delay, hinder, or defraud creditors and others of their just actions, suits, etc. ; which has ever been liberally construed. Howe v. Ward, 4 Greenl. 195 ; Sargent v. Salmond, 27 Me. 539; Hutchinson et ais. v. Kelly, 1 Rob. (Va.) 125 ; Carlisle v. Rich, 8 N. K. 44; Jackson v. Seward, 5 Cow. 67 ; Clapp v. Leatherbee, 18 Pick. 131; Jackson v. Myers, 18 Johns. 425; Lillord v. McGee, 4 Bib. (Ky.) 165 ; Damon v. Bryant, 2 Pick. 411; Roberts v. Lund, 45 Vt. 82; IAvermore v. Boutelle, 11 Gray, 217.</p> <p>By statute it is made the duty of towns to relieve and support all poor persons lawfully settled therein. Gen. Sts. c. 20, s. 1. But a person must expend his property, both real and personal, in his own support, before he can make a legal call on the town for relief. Londonderry v. Acton, 3 Vt. 122. And a town has a right, by permission of a person chargeable, to take his property, either as a compensation for past, or an indemnity for future, expenses. Briggs v. Whipple, 6 Vt. 95 ; Lyndon v. Belden, 14 Vt. 428. Here the plaintiff avoided not only the duty but the right of the town. It is no answer to say that the pauper had not become chargeable at the time of rendition of judgment, for he was likely to become chargeable, and, as fairly appears, did become chargeable by reason of the act of the plaintiff. A fraudulent conveyance of property is invalid as to subsequent as well as to existing creditors. McLane v. Johnson, 43 Vt. 48 ; Parhman v. Welch, 19 Pick. 231; Livermore v. Boutelle, 11 Gray, 217.</p> <p>The proceedings of the officer were irregular in selling the property, and of that the defendant can take advantage. Property sold by an officer is required by statute to be advertised and sold at some public place. Gen. Sts. c. 47, s. 4. The-officer may adjourn the sale, in the exercise of a sound discretion, to another time and place, provided it be to a place which he was authorized to appoint as the place of sale in the first instance. Jewett v. Buyer, 38 Vt. 209.</p> <p>The defendant stands on such rights as the town of Wolcott had against Godfrey on September 7, 1878, the date of the judgment. On that day Godfrey owed the town of Wolcott “no right, debt, or duty” of any kind. The town had no legal power over, nor right in his property until he became an actual pauper. Gen. Sts. c. 113, s. 32 ; Carpenter v. McClure, 39 Vt. 9 ; Bessey v. Windham, 6 Q. B. 166 ; Bennington v. McBennes, 1 D. Chip. 44 ; 1 Am. Lead. Cas. 46, 48.</p> <p>The officer’s right to adjourn his sale is well settled. Wood v. Boane, 20 Vt. 612 ; Ball v. Bay, 40 Vt. 576 ; Jewett v. Buyer, 38 Vt. 209 ; Brahe v. Mooney, 31 Vt. 617.' The court, in favor of the officer’s return, will presume Godfrey’s premises to have been a public place. Brahe v. Mooney, 31 Vt. 617. An irregular sale will pass title as against the defendant. Wood v. Boane, 20 Vt. 612. The overseer has no right to take the property because he is compelled to take the person of the pauper. Briggs v. Whipple, 6 Vt. 95; Lyndon v. Belden, 14 Vt. 423.</p>

Assumpsit on a promissory note. Plea, the general issue, with notice of special matter. Trial by jury, April Term, 1877, Rotce, J., presiding. The note declared on was for $800, payable to the plaintiff, without words of negotiability.

<p>Liability of Bail on Mesne Process. Cen. Sts. c. 33, s. 63.</p> <p>In scire facias against "bail on mesne process, held, that the amount of the judgment against the principal, with interest thereon and costs, was the sum to he recovered, and that it was not to he reduced to a nominal sum upon a showing that the principal had no attachable property at the time of nor after the rendition of judgment in the original action.</p>

General Assumpsit. The plaintiff filed specifications, claiming to recover from the defendant, a corporation organized under the general banking laws of the United States, $120 paid to the defendant for usurious interest on notes, drafts, checks, and bills of exchange, during the six years next preceding the date of the writ.

<p>Trespass qua. clau. for cutting and carrying away hay from the plaintiff’s land in Irasburgh, in July, 1874. The case was referred, and the referee found as follows:</p> <p>The plaintiff is the owner of lot No. 28 in the first, and the defendant Kenniston of lot No. 28 in the second, range of,lots in Lowell as it was originally organized. Many years since, the first range, which was on the easterly side of the town, was, by act of the legislature, set to Irasburgh. The plaintiff’s and defendant Kenniston’s farms adjoin ; and the locus in quo is within the plaintiff’s enclosure, and on his farm as occupied and claimed by him and his grantors for at least six years before the alleged trespass. The division fence, which had been built by the mutual act and at the joint expense of the respective owners of the two lots, was divided by the plaintiff and Kenniston by agreement, the plaintiff agreeing to keep the north half in repair and Kenniston the south half. The fence was on a continuation of what was known as the Frost line, which was made by Henry Frost about the year 1856, by direction of the late Thomas Reed, of Montpelier, who was the owner or grantor of all the lots in the two ranges, or that part of them south of lots No. 28, and at the instance of the occupants of lots in that part of the ranges who had learned that the line then existing, called the Paine line, which appeared to be the only line dividing the two ranges, ran so as to make the lots in the first range of about eighty-six acres, and the lots in the second range of about one hundred and fourteen acres each, and was run arbitrarily equi-distant between the town line on the east and the second range line, from the northern line of lots No. 27 south as far as the south line of lot No. 23, and so as to make the lots in that part of both ranges of about one hundred acres each. The line was within a year or two afterwards extended by some one, it did not appear by whom, northward between lots No. 28 to Coventry Gore. This line where the fence was, was generally regarded as the true range line by the owners and occupants of lots on both sides of the line, and Kenniston, who had lived on his farm about ten years before the alleged trespass, so regarded it until 1873, when the Paine line was run upon the original range line that was made in the allotment of the town of Lowell, and was about twenty rods to the eastward of the Frost line, as before stated. The line thus became fixed as to some of the occupants by acquiescence and possession ; but as to lots No. 28 there has not been fifteen years continuous occupancy of either of them, with a claim of title to that line ; and I do not find that either party has lost or gained any land conveyed to him, by adverse possession ; so that the Paine line is the legal line between the two lots. Before the plaintiff bought lot No. 28 in the first range, he had a conversation with the defendant Kenniston about the boundaries, and Kenniston, knowing that he was about to purchase the lot, told him, believing it to be so, that the fence which was upon the Frost line, and extended across the whole width of the lot, and was the apparent boundary, and was shown to the plaintiff as such by his grantor, was the dividing line between the two lots ; and the plaintiff, relying upon that statement, and thereby induced in part to purchase the lot, when in fact he would not have done so if he had known that the Paine line was the legal line, bought the lot and paid for it. I therefore find that Kenniston is estopped to deny that the fence was on the true line as he represented, and for the plaintiff to recover the value of three tons of hay taken by the defendants jointly, at $7 per ton, with interest to February 12, 1877, amounting in all to $24.25. But if the court should be of opinion upon the facts stated that the defendant Kenniston is not estopped, then I find for the defendants to recover their costs.</p> <p>The court, at the February Term, 1877, Redfield, J., presiding, rendered judgment, pro forma, on the report for the plaintiff ; to which the defendants excepted.</p> <p>The defendant is not estopped, as no fraud was attempted. Strong v. Ellsworth, 26 Vt. 866 ; Thrall v. Lathrop, 30 Vt. 307 ; Brown v. Boston f Worcester JR. Co. 5 Met. 478; Tolman v. Spar hawk, 5 Met. 476; JProprietors of Liverpool Wharf v. Prescott, 7 Allen, 494; Parker v. Brown, 15 N. H. 184; Odlin v. Grove, 41 N. H. 473 ; Whittaker v. Williams, 20 Conn. 103 ; Taylor v. Ely, 25 Conn. 258; Danforth v. Adams, 29 Conn. 110; Dixfield v. Newton, 41 Me. 221; Steele v. Putney, 15 Me. 327 : Brant v. Virginia Coal f Iron Co. 16 Am. Law Reg. 403 and n.; Bigelow Estop. 528, et seq.</p> <p>The defendant is estopped from claiming beyond the Frost line. Wakefield v. Crossman, 25 Vt. 298; Strong v. Ellsworth, 26 Vt. 366 ; Hicks v. Cram, 17 Vt. 449 ; Downer v. Flint, 28 Vt. 527 ; Spiller v. Scribner, 36 Vt. 245 ; Halloran v. Whitcomb, 43 Vt. 306; Kinney v. Farnsworth, 17 Conn. 355; Whitaker v. Williams, 20 Conn. 98 ; Brown v. Edson, 23 Vt. 435 ; Colby v. Norton, 19 Me. 412 ; Shaw v. Beebe, 35 Vt. 205; Adnir. of Bussell v. Maloney, 39 Vt. 579; 1 Story Eq. Jurisp. s. 387.</p>

<p>Petition for Divorce, beard at the September Term, 1876, Powers, J., presiding.</p> <p>It appeared that in December, 1873, the petitioner left his family in Lowell, in this State, where he had previously resided, and went to Massachusetts, where he resided till April, 1876, when he returned to Lowell, where he lived, separate and apart from his family, until the bringing of this petition on August 21, 1876, his wife having continued to reside in Lowell, and having during his residence in Massachusetts been gotten with and delivered of a child. It further appeared that at the time the petition was brought, the petitioner was under guardianship, a guardian having been appointed for him under s. 13, c. 72, of the Gen. Sts.</p> <p>The petitionee moved to dismiss, for that the petitioner had not had such a residence in this State as the law required, and for that the petitioner, being under guardianship, could not sustain a petition brought in his own name. But the court overruled the motion ; to which the petitionee excepted.</p> <p>To sustain the charge of adultery, the petitioner offered testimony to prove that the petitionee had admitted that the child so born was begotten by some one not her husband ; to the admission of which the petitionee objected; but it was admitted; to which the petitionee excepted.</p> <p>The petitioner, having resided in this State but about five months before the term of court to which this petition was brought, has no standing in court. •</p> <p>This is a civil suit. " Bishop Mar. & Div. ss.. 298, 299. Therefore the petitioner can prosecute it by his guardian only. Holden v. Scanlin, 30 Vt. 177. The way to proceed when the marriage of an idiot or a lunatic is sought to be annulled, is pointed out by s. 7, c. 70, of the Gen. Sts.</p> <p>’Section 20, c. 70 of the Gen. Sts., has no reference to cases where the causes arose within this State. Therefore the residence was sufficient.</p> <p>The petition was properly brought in the petitioner’s name. Section 22 of the same chapter provides that the petition shall be signed by the petitioner if of sound mind and of the age of legal consent; and hence there was no question as to the sanity or age of the petitioner.</p> <p>A voluntary confession of a crime without duress or offer or hope 'of reward, is the best of evidence, and always admissible. State v. Abbey, 29 Vt. 60; State v. McDonnell, 32 Vt. 491; State v. Center, 35 Vt. 378 ; State v. Gilbert, 36, Vt: 145 ; State v. Carr, 37 Vt. 191; State v. Horn, 43 Vt. 20 ; Bishop Mar. & Div. s. 245; 1 Greenl. Ev. ss. 199, 213, 263.</p>

<p> Pleading. </p> <p>In assumpsit on a promissory note the declaration alleged that on, &c., defendants “ made their promissory note,” and thereby promised to pay in a certain time “after date ” thereof. On demurrer thereto for that it was not alleged that the note had any date whereby it might appear that it had become due, it was held that it would be intended that the date of the note was the day on which the note was alleged to , have been made, and that the declaration was sufficient.</p>

<p>Scire Facias on a recognizance entered into by the defendants as sureties for James A. Kendall, deceased, conditioned for the faithful performance by said Kendall, of his duties as sheriff of Orleans County, for not paying over money by him collected on an execution in favor of the plaintiff. The defendants filed six pleas in bar and a notice of special matter. The case was referred, and the referee reported as follows:</p> <p>On January 8, 1866, the plaintiff sued out a writ of attachment against E. Fuller & Co., returnable to the June Term of the Orleans County Court, demanding in damages the sum of $800, and placed it in the hands of James A. Kendall, then and until August, 1867, the sheriff of that county, who served it by attaching the property of the defendants therein, subject to four prior attachments in favor of Baker, Robinson <fe Clough, C. S. Cutting, D. Fuller, and M. A. Lewis & Co., on writs returnable to the same term. All of said writs were duly returned, and judgments rendered for all of the several plaintiffs at said term, except D. Fuller, -whose action was afterwards discontinued. Executions were duly issued and placed in the hands of said Kendall.</p> <p>In the meantime, the property was sold by agreement of parties on mesne process, for 14,193.68 above the expenses of sale. I find from the testimony of Cutting and J. T. Allen, to whose competency the defendants objected because Kendall was dead, that the action brought by D. Fuller was fictitious, and was understood to be so by all of the several creditors and by the officer, and that the proceeds of the officer’s sale were to have been applied on said several executions in their order ; that at the time the execution of the plaintiff was put into Kendall’s hands, Cutting either owned all of said judgments, or acted by authority as the agent of the several creditors therein, and controlled the collection thereof, as Kendall well knew, and directed Kendall to apply the proceeds of the sale in that- order; that on March 15, 1867, after satisfying the executions prior to the plaintiffs’, there was remaining in Kendall’s hands the sum of $359.53, which he never paid over to any one, but which should have been applied on the plaintiffs’ execution, unless the plaintiffs failed to keep good their right thereto by reason of circumstances hereafter stated.</p> <p>It appeared that on May 5, 1866, Cutting became the owner of the plaintiffs’ claim against D. Puller & Co., and so remained until October 11, 1873, when he sold it to said Allen, who had up to that time been the attorney of the plaintiffs and Cutting, who is now the owner thereof. In August, 1867, Kendall died, and Lucius Robinson took out a letter of administration on his estate, and on August 28, L. H. Bisbee and D. K. Simonds were appointed commissioners thereon, with a limitation of six months for the examination and allowance of claims. I find from the testimony of Cutting, that while he was the owner of said judgment, and while the commissioners were in session, he presented said judgment to the administrator, who told him that the claim could not then be examined on account of the pressure of business, but that he would inform him when the commissioners would examine it, and that the commissioners should not close the business of their appointment until he had had opportunity to present it. Cutting, relying on this assurance, left his claim with the administrator, and never presented it to the commissioners. The report of the commissioners, which was introduced in evidence, purported to have been dated and signed on December 1, 1868, and returned to the Probate Court on October 23, 1873, and then accepted. But from the testimony of said Allen, I find that in the spring of 1871, Bisbee removed to Chicago, where he had ever since resided, and that Simonds had before that time removed from Orleans County. I further find from his testimony on cross-examination, to the admission of which the plaintiff objected, that in the fall of 1873, he carried the commissioners’ report to Chicago, when Bisbee signed it for the first time, and on his return sent the same to Simonds, who also signed it, the same being approved of by the. administrator. Prom the.records of the Probate Court, it appears that the estate was finally closed on August 7, 1875, and that there were no assets for division among the creditors. If it is competent for the defendants to contradict the report of the commissioners and impeach their proceedings relative to the plaintiffs’ claim, if the facts established prove that the claim was never duly presented to and acted upon by the commissioners, and if, the estate of Kendall having been insolvent, those facts defeat the plaintiffs’ right to pursue the bail in this suit, then judgment should be rendered for the defendants. But the referee holds that the validity of the action of the commissioners and the Probate Court cannot be questioned in this proceeding, and that upon the facts found the plaintiffs are entitled to judgment for the sum of 1359.53, with interest thereon from March 15, 1867, and costs.</p> <p>The defendants claimed that upon the facts found they were entitled to judgment, and that the cause of action was barred by the Statute of Limitations. But the court, at the September Term, 1876, Powers, J., presiding, ruled that the defendants could not take advantage of the .statute because that they had not formally pleaded it, and rendered judgment on the report for the plaintiffs ; to which the defendants excepted.</p> <p>The defendants are not bound by the judgment of the Probate Court for the reason that they are strangers thereto. Sturges v. Beach, 1 Conn. 507 ; Cowles v. Harts, Johnson $ Co., 3 Conn. 516 ; MoLoud v. Selby, 10 Conn. 389 ; The Union Mfg. Co. v. Pitkin, 14 Conn. 175 ; Smith v. Chapin, 31 Conn. 530 ; Smith v. Saxon, 6 Pick. 483 ; Leonard v. Bryant, 11 Met. 370 ; Vose v. Morton, 4 Cush. 27, 31; Stark. Ev. 324, and n.; Nason v. Blaisdell, 12 Vt. 165; Atkinson v. Allen, 12 Vt. 619; Gibbs v. Linsley, 13 Vt. 208; Parkhurst v. Sumner, 23 Vt. 538; Spencer v. Dearth, 43 Vt. 98.</p> <p>The sheriff could not apply funds on the plaintiffs’ execution while the action by Fuller was pending. He was bound to hold that portion of the avails of the sale that would properly apply to' that attachment, until the plaintiff therein released that attachment. Allen was a party in interest, and was not a competent witness under the statute. Gen. Sts. c. 36, s. 24.</p> <p>The defendants could take advantage of the Statute of Limita- ’ tions before the referee without having pleaded it. Eddy v. Sprague, 10 Vt. 216, per Redfield, J.; Garter v. Howard, 39 Vt. 106, per Barrett, J. The claim was not seasonably presented to the commissioners. It was therefore barred by s. 14, c. 53, of the Gen. Sts. It was also barred by the Statute of Limitations. Brainard v. Stewart, 33 Vt. 402.</p> <p>Cutting and Allen were competent witnesses. The cause of action here is the recognizance, and all the parties to that are alive. The proceedings by the commissioners was a suit within the meaning of the statute. Gen. Sts. c. 36, s. 24 ; Lythev. Bond’s Estate, 40 Vt. 618 ; Manufacturers’ Bank v. Scofield, 39 Vt. 590 ; Qheney v. Pierce, 38 Vt. 515, 528 ; Oalderwood v. Estate of Oalderwood, 38 Vt. 171.</p> <p>The creditor must obtain a judgment against the sheriff to lay the foundation for a scire facias. Gen. Sts. c. 30, s. 69; Puller v. Holmes, 1 Aik. Ill; Tute v. James, 48 Vt. 60. That judgment is conclusive of the plaintiff’s right to a judgment against the bail, as against all defences that the sheriff might have urged in the suit against him alone. Bradley v. Qhamberlin, 35 Vt. 277.</p> <p>A decree of the Probate Court is absolutely unimpeachable and conclusive in all other courts, both in law and equity. Redf. Wills, 47 ; Oalderwood v. Estate of Oalderwood, 38 Vt. 175; Allen v. Bundass, 3 T. R. 125 ; Plume v. Beale, 1 P. Wins. 388 ; Wescott v. Oady, 5 Johns. Ch. 334, 343, per Kent, Ch.; Kimball v. Newport, 47 Vt. 38.</p>

<p>Trespass for shooting a dog, appealed from the judgment of a justice of the peace. Plea, the general issue, with notice of special matter, and special pleas. Trial by jury, February Term, 1877, Redfield, J., presiding.</p> <p>It appeared that(the dog in question was a hound kept for the chase, and chained when not in pursuit of game ; that on November 21, 1874, plaintiff went out with the dog to hunt foxes ; that the dog soon started a fox, and after pursuing him several miles in various directions, passed the house of one Stone, who lived about two miles from plaintiff’s ; that Stone, with whom plaintiff had an understanding that if the dog pursued game in his vicinity he should join in the chase, being then out, started in pursuit; that the fox, closely followed by the dog, passed across the farm of the defendant’s father, and took cover in a piece of wood, Stone, and others who had joined him, being near by and in view of both fox and dog as they passed into the wood and out of sight; that Stone and the others saw the defendant come from his father’s house with a gun, and go in the direction taken by the dog ; that Stone heard the dog howl as though obstructed or distressed, and ran forward; that he soon heard the report of a gun, and on coming up, found the dog with a severe gunshot wound in the shoulder, the wound indicating by scorched hair, and by the presence of the wad in the wound, that the gun was discharged in near proximity to the dog. The plaintiff was not in the vicinity when the dog was shot. It was conceded that the dog had on no collar, nor anything to indicate its owner or keeper.</p> <p>The defendant testified that at the time he shot the dog, the dog had driven the fox into cover, and was playing about him in full view ; and that he shot at the fox and hit the dog accidentally.</p> <p>The defendant claimed that under s. 3, No. 10, Acts of 1862, the shooting of the dog was lawful. The plaintiff insisted that said statute was unconstitutional; but the court ruled otherwise ; to which the plaintiff excepted.</p> <p>The court charged that if the plaintiff or Stone was pursuing, and near enough to be in view, and the dog was neither doing nor threatening injury to others, he was not justified in shooting him; that if the dog had the fox confined, the defendant was not to be justified in interfering with either dog or fox, so that if the defendant shot the dog accidentally, he would be liable for the actual damage, or if he did it intentionally or wantonly, the jury would be at liberty to give exemplary damages; and that if they found the shooting wanton or intentional, they should find that fact specially. Exceptions by defendant. The jury returned a verdict for $13.60, and a special verdict, “that the shooting of the dog was a wanton act.” The defendant moved to set aside the verdict, and it thereupon appeared that after the jury retired to consider of their verdict, they expressed their opinion that the act of the defendant was unintentional, but somewhat careless; that a discussion then arose as to the proper word to express that idea in their verdict, and as they were unable to agree, the officer in charge, by their direction, brought them a copy of Webster’s Unabridged Dictionary, which they consulted in making up their verdict, and from which they took the word wanton, used in their verdict. The court overruled the motion ; to which the defendant excepted.</p> <p>It appeared that no guardian ad litem was appointed for defendant until the second term after the case was appealed. The defendant insisted that no costs prior to the appointment of such guardian could be allowed, but the court ruled otherwise; to which the defendant excepted.</p> <p>The dog’ was so far from the presence of the plaintiff, that the plaintiff could not have restrained him had he been engaged in any mischief. He was therefore running at large within the meaning of the statute. Acts of 1862, No. 10, s. 3 ; Russell v. Cone, 46 Vt. 604, per Peck, J.; Commonwealth v. Row, 10 Met. 382. The charge upon this point was, therefore, erroneous. Claris v. Boardman, 42 Vt. 677.</p> <p>The plaintiff acquired no property in the fox by the dog’s driving him to cover. 2 Greenl. Ev. s. 620; 1 Bouv. Law Diet. tit. Ferae Naturce; Pierson v. Post, 3 Caines (N. Y.) 175; 4 Bac. Abr., Bouv. ed., tit. Game. The charge so far as it related thereto was therefore erroneous. Vincent v. Stinehour, 7 Vt. 62.</p> <p>Exemplary damages are allowable only where the defendant has been guilty of malice, gross negligence, &c. Sedgw. Dam. 34, 517, 540. The charge as to the act being intentional or wanton, was, therefore, erroneous.</p> <p>The motion to set aside the verdict should have been sustained. Hilliard New Trials, 219; Merrill v. Nary, 10 Allen, 416 ; State v. Patterson, 45 Vt. 317.</p> <p>The plaintiff is not entitled to costs pending the appointment of guardian ad litem.</p> <p>The appointment of a guardian ad litem is sufficient if it precedes the trial. Barber v. Graves, 18 Vt. 290, and case cited. But it does not here appear that the defendant was an infant. Russell v. Fillmore, 15 Vt. 130 ; Poultney v. Glover, 23 Vt. 328 ; Bradley v. Pratt, 23 Vt. 378; Bartlett v. Wood, 32 Vt. 372.</p> <p>The dog was not running at large within the meaning of the statute, but was, constructively, under the control of the owner or keeper, who was following in the chase. Besides it does not appear that the shooting was off the plaintiff’s premises. Acts of 1862, No. 10, s. 3.</p> <p>The special verdict settles the fact that the shooting was wanton. There was, therefore, no error in what the court said about accidental shooting. The special verdict, if herein rightly construed, makes error upon that point impossible.</p> <p>The fox, while so confined by the dog, was in the constructive power and control of the plaintiff, and his special property, and any interference with either the dog or the fox was unlawful. Hence the defendant cannot say in defence that the shooting was accidental. 2 Kent. Com. 349 ; Lindsay v. Lindsay, 11 Vt. 261.</p> <p>The motion to set aside the verdict was properly overruled. While the jury must receive the law from the court, they may learn, even in the jury-room, to make a proper use of language. Wheatly v. Waldo, 36 Vt. 237.</p> <p>The act relied upon by the defendant is unconstitutional in that it authorizes the destruction of private property without due process of law or compensation. Const. U. S., amendments, articles V, ArI; Thorpe v. It. B. Railroad Co. 27 Vt. 140 ; State v. Prescott, 27 Vt. 194; Story Const, s. 1954.</p>

Petition for partition of lot No. 38 in the second division of lots in Maidstone, alleging that the petitioner was the owner, seised and possessed, of one undivided half of said lot, and that the defendant Bailey was the owner of the other half, which was subject to a mortgage to the defendant Boyce.

Indictment for an assault with intent to kill. Plea, not guilty, and trial by jury, September Term, 1875, Barrett, J., presiding. The prosecution abandoned the alleged intent, and sought to convict of an assault only; and introduced evidence tending to show that on September 15, 1874, the respondent assaulted one John O’Neil, who was then putting up his highway fence near a certain brook, and threw him down, pounded him, broke one of his ribs, and otherwise injured him.

[In Chancery.] Appeal from the Court of Chancery. The bill, yvhich was originally brought by Richards alone, alleged, that on March 4, 1874, the orator Richards was the owner of certain real estate in Concord, consisting of woodland, a sawmill, a dwelliDg-house, &c., of the value of about $4,000, which was subject to a mortgage of about $900 to one Turner ; that on that day an execution in favor of one McGonty against him was, by direction of the defendant Stanley, to whom…

<p>Competency of Witness under s. 24, c. 36, Gen. Sts.</p> <p>Plaintiff in an action against an estate was allowed to show an account on his book, and to testify that it was in bis handwriting, and copied from a day-book. Held, not admissible under the proviso of s. 24, e. 36, Gen. Sts., which allows the proof and authentication of an original book of accounts by such testimony, for the purpose of making it an instrument of evidence, but not of a copy, which cannot be made such an instrument.</p> <p>Plaintiff took a lease of decedent’s farm for one year, with an agreement to purchase it if he could sell his own within the year, and an agreement on decedent’s part to pay for repairs of buildings if done within the year by his consent, provided plaintiff did not purchase. In an action against decedent’.s estate to recover for such repairs, plaintiff was allowed to testify in regard to deeds of his own farm October 2, 1871, to one Conant and one H.: “Not all of the land in the Conant deed belonged to the Carter farm. Twenty acres in both deeds not in that farm.” Held, that under s. 24, c. 36, Gen. Sts., his testimony should have been excluded.</p>

Trespass for assault and false imprisonment. Plea, not guilty, and notice that the defendant, John P. Adams, theretofore executed a bond to the town of Barnet for the support of a bastard child then expected to be born of the body of one Elizabeth Mason, and that after the birth of said child (the plaintiff) certain suits were commenced on said bond against the said John, wherein judgments were obtained for the expense of the support of said child, and that on October 11,…

Trespass qua. clau. Plea, the general issue, and trial by jury, June Term, 1876, Caledonia County, Ross, J., presiding. It appeared that plaintiff at the time of the alleged trespass, was keeper of the Avenue House, an inn in the village of St. Johns-bury.

[In Chancery.] Appeal from the Court of Chancery. The bill alleged that the orators, Edwinah Bailey and Marietta Mosely, were daughters of William and Mary Woodbury, late of Berlin, deceased; that on March 13, 1817, the said Mary owned in her own right, the hill farm of Jonathan Ayers, her father, then deceased, except that part thereof set out to Elizabeth Ayers, widow of the said Jonathan, as dower; that the part thus owned by said Mary contained about 120 acres, was…

Case on s. 32, c. 20, Gen. Sts., for bringing paupers from the State of New Hampshire into the town of Barnet.

[In Chancery.] Appeal from the Court of Chancery. The amended bill alleged that on January 16, 1867, and for a long time prior thereto, the defendant Trenor W. Park had been and was the principal owner of what was then known as the Bennington & Rutland Railroad, which extended from Bennington to Rutland, and had for a long time been operated by the Troy & Boston Railroad Company, under a lease from Shepherd Knapp and George Briggs, trustees thereof, in connection with said…

Ejectment. The case was referred, and the referee reported as follows: It was conceded that the title to the demanded premises was in the plaintiff, both at the time the suit was brought, and at the time of the hearing, and that the defendant was in occupation of a hovel on a portion thereof, in which he lived.

<p>Homestead. Gfen. Sts. e. 68, s. 1.</p> <p>In ejectment it appeared that plaintiff sold certain real estate, including her homestead, and with a part of the avails thereof, less than the value of the homestead exemption, purchased the demanded premises, which had then just been demised for a term of three years to one then in possession, and who remained therein to the time of trial. Defendant subsequently set off the premises on an execution against plaintiff. Held, that as plaintiff had no right of occupancy, the premises were not used or kept as a homestead so as to he exempt under s. X, c. 68, Gen. Sts.</p>

<p>Trespass, with a count in case. The first count alleged the taking of wood and lumber of the value of $6. The second alleged an assault, and an unlawful imprisonment in Chittenden County jail. The third alleged a fraudulent procurement from the United States District Court for the District of Vermont of an adjudication of bankruptcy against the plaintiff, whereby his property was seized, and his person arrested and committed to jail. The case was referred, and the referees reported in substance as follows:</p> <p>As to the first count we find that the defendant is guilty in manner and form as alleged, and we assess the damages by reason thereof at the sum of $2. As to the matters in the second and third counts, we find that on January 21, 1874, the plaintiff purchased of the defendant a certain farm and certain personal property consisting of the stock, farming tools, &c., thereon, for the sum of $6,500, for which he gave his notes, and that on the same day said property was duly conveyed to the plaintiff, and a mortgage on said farm executed to the defendant by the plaintiff to secure $6,400 of said sum, it being agreed that the remaining $100 should be paid in produce. We further find that in May, 1875, there was due and unpaid of said sum, including interest, about $600 ; that on May 14, 1875, the plaintiff, for the purpose of placing his property beyond the reach of his creditors and especially the defendant, conveyed said farm, subject to said mortgage, to one Denison Densmore, and sold and delivered to him and another his personal property, and also conveyed his interest in another farm to his mother ; that the defendant was thereby fully warranted in believing that the plaintiff had committed an act of bankruptcy within the meaning of the bankrupt laws of the United States; that the defendant thereupon, on May 25, 1875, as ci’editor of the plaintiff, filed his petition in the clerk’s office of the United States District Court for the District of Vermont, praying that the plaintiff be adjudged a bankrupt, and on the same day filed his petition for a warrant of arrest of the plaintiff; that thereupon, on the same day, such warrant was issued by said District Court † that such proceedings were had in said court on such petitions, that on July 6, 1875, the plaintiff was by said court adjudged a bankrupt within the meaning of the bankrupt laws of the United States. We further find that previous to the filing of said petitions, the plaintiff had cut and carried away from said home farm a large amount of wood, timber, and bark, of the value of $250, and in so doing committed waste; that at the time of making and filing said petition for a warrant of arrest, the defendant had not good reason to believe or fear, as therein alleged, that the plaintiff would, upon service of the order to show cause upon said bankrupt petition, immediately leave the district and put himself beyond the reach of said court; that the United States marshal for the district of Vermont, to whom said warrant was directed, served the same on the plaintiff on the day it was issued, by arresting his body and carrying him to Burlington, in the County of Chittenden, and there placing him in the common jail, in the custody of the keeper thereof; that in the manner of the service of said warrant there was an abuse of process, in that the plaintiff was so arrested and taken to Burlington with undue haste, without giving the plaintiff time to communicate with his friends to procure bail, and was there placed in the common jail, and there kept and subjected to ignominious treatment until the next morning, when he was liberated by order of said court, upon his furnishing bail to the satisfaction of said court; that the defendant procured said warrant to be issued as aforesaid by making and filing his said petition therefor. If in the opinion of the court the plaintiff is entitled to recover under the second and third counts upon the facts herein set forth, then we assess his damages under said counts at the sum of $500. We therefore find for the plaintiff to recover said sum of. $2, and said further sum of $500, subject to the opinion of the court as aforesaid, and his costs.</p> <p>The petition for an adjudication of bankruptcy in substance alleged an indebtedness upon the plaintiff’s said notes of about $5,900; that by reason of waste committed by the plaintiff, the mortgage security therefor had become insufficient by about $2,000; that there was about $600 due to the defendant, and unpaid ; that within six months before the bringing of the petition, the plaintiff committed an act of bankruptcy by selling, transferring, and conveying while bankrupt and insolvent, and in contemplation of bankruptcy and insolvency, all of his property to his mother, to one George Grover, and to one Denison Densmore, with the fraudulent intent and purpose of thereby preventing the same from being taken upon attachment by his creditors. The petition for a warrant alleged that the plaintiff had given out in speeches to the defendant that he had received the sum of $800, besides a large sum in negotiable paper, which was beyond the reach of the defendant and other creditors, and that the plaintiff then wished the defendant to compromise his claim against him. The petition proceeded further as follows : “ And your petitioner fears that said Carleton will upon service of the order to show cause upon said bankrupt petition immediately leave the district and put himself beyond the reach of this court.” The warrant issued thereon recited that there was reason to believe that the bankrupt was about to leave the state.</p> <p>The court, at the March Term, 1877, Redfield, J., presiding, rendered judgment, pro forma, on the report for the plaintiff for the larger sum; to which the defendant excepted.</p> <p>The case having been referred, the defendant has the right to interpose any defence that could be made under any state of the pleadings, and ’may recover, if the facts found by the referees warrant it, under any possible declaration. Fddy v. Sprague, 10 Vt. 216 ; Fulton v. Wiley, 32 Vt. 762 : Cook v. Carpenter § Cook, 34 Vt. 121; Carter v. Howard, 39 Vt. 106.</p> <p>What is the cause of action ? Is it trespass, or abuse of process, a malicious arrest, or malicious prosecution ? It is not trespass, for the defendant did not touch the plaintiff, nor arrest him, nor order him arrested. He had nothing to do with the manner of the service of the wari'ant, and gave no directions as to how it should be served. He only asked to have the law put in motion. For that trespass will not lie, the process being l’egular, and the subject-matter within the jurisdiction of the coui’t. 1 Chit. PL 184, 185 ; 1 Wms. Saund. 228, and cases cited ; Flsee v. Smith, 1 D. & R. 97. Nor abuse of process. It does not appear that the defendant coimnenced proceedings for any collateral purpose, for extortion, or for anything that could not have been accomplished thereby legally. Driggs v. Burton, 44 Vt. 124. See also Grainger y. Hill, 4 Bing. N. 0. 212; Prough v. Entriken, 11 Penn. 81; Wakefield v. Fairmount, 41 Vt. 839; Humphrey v. Douglass, 11 Vt. 22. Nor was it a malicious arrest or a malicious prosecution. Neither malice nor want of probable cause has been found ; nor do the referees find facts from which malice must necessarily be implied. Driggs v. Burton, 44 Vt. 124.</p> <p>Section 5024, Rev. Sts. U. S., reads as follows: “And if it “ shall appear that there is probable cause for believing that the “ debtor is about to leave the district, or to remove, or conceal his “goods and chattels, or his evidence of property, the court may “ issue a warrant,” etc. Under that statute the court should decide as to whether there was probable cause for believing. And to whose discretion is the question addressed ? It is the court, and its decision would be final. Ex Parte Kellogg, 6 Vt. 509; Kelley v. Paris, 10 Vt. 2(31; Boss v. Fuller, 12 Vt. 265. Section 76, c. 33, Gen. Sts., is different in that thereunder the authority signing the writ has no discretion. Parkhurst v. Pearson, 30 Vt. 705; Admr. of Whitcomb v. Cook, 39 Vt. 588; Phillips v. Wood, 31 Vt. 322.</p> <p>The finding of the referees is conclusive upon all questions of fact, and upon all questions of law, except such as they may have therein submitted to the court upon the facts found. White v. White, exr. 21 Vt. 250 ; Biley v. Noyes, 44 Vt. 455. The report submits the question of law whether the plaintiff is entitled to recover upon the second and third counts upon the facts found. If he is, then the plaintiff is to have judgment for the damages sustained.</p> <p>I he plaintiff is entitled to recover upon the second count for false imprisonment; for the warrant of arrest was issued on a petition alleging only that the petitioner feared that the bankrupt would leave the district, and put himself beyond the reach of the court. That was not a compliance with the law requiring a showing of probable cause for believing. Rev. Sts. U. S. s. 5024 ; Bump Bankr. 39 ; Aiken v. Bichardson, 15 Vt. 500 ; Adams v. Whitcomb, 46 Vt. 708 ; Grumon v. Raymond, 1 Conn. 46 ; 1 Swift Dig. 494 ; Const. U. S. Art. 4, amendments ; Emery v. Hap-good, 7 Gray, 55 ; Cody v. Adams, 7 Gray 59. Besides, the petition was false. The referees found that the defendant had not good reason to believe or fear that the plaintiff would immediately leave the district and put himself beyond the reach of the court. Brackett v. Eastman, 17 Wend. 32.</p> <p>The report finds that defendant had no probable cause for believing that the plaintiff would immediately leave the district. It therefore appears that the defendant had no probable cause for procuring the warrant of arrest. Briggs v. Burton, 44 Vt. 135 ; Barron v. Mason, 31 Vt. 189 ; Sonneborn v. Stewart, 2 Wood, 599 ; Stone v. Crocker, 24 Pick. 81.</p> <p>The burden was on the defendant, to show that the arrest and imprisonment were in accordance with the provisions of law, and for probable cause. Both of these facts are found against him, and either is sufficient to sustain the action. Cotton v. James, 1 Moody & M. 273 ; Cooper v. Wakley, 3 C. & P. 470 ; 3 Phil. Ev. 645.</p> <p>The defects in the petition for arrest and the want of affidavit, were not cured by the issuing of the warrant for arrest. There was no adjudication any more than on the issuing of a capias on the filing of an affidavit, or of a search warrant on the filing of the complaint or petition therefor. It was a proceeding in invitum and ex parte, and the party invoking or putting in motion these proceedings should have seen to it that he complied with the law. Sonneborn v. Stewart, 2 Wood, 599 ; Bigelow Estop. 46, et seq.; 25 Conn. 180 ; 41 Penn. St. 42.</p> <p>The report in terms finds the abuse of process alleged in the third count. Besides, the order was to bring forthwith before the court. Instead of complying with that order, the plaintiff was thrust into jail and kept there twenty hours, “ subjected to ignominious treatment.” Brough v. Entriken, 11 Penn,. 81; 2 Greenl. Ev. 452; Granger v. Hill, 4 Bing. N. C. 212.</p> <p>There is no question as to costs submitted by the referees. The court will not disturb the finding on that subject.</p>

<p>Petition foe Mandamus, Caledonia County. The petition alleged that on January 16, 1872, the state’s attorney presented to the relator, then a justice of the peace within and for said county, a complaint against Gardiner Springer, of Peacham, for an assault upon Jessie Kimball; that thereupon the relator issued a warrant for the arrest of said Springer, which was duly served, and that said Springer was arraigned for trial; that the case, after having been once continued, was tried on January 26, when the jury disagreed ; that the case was again continued, and finally again tried on May 29, the jury again disagreeing, whereupon the state’s attorney entered a nolle prosequi, and the prisoner was discharged ; that the relator thereupon taxed the costs, which he believed to be legal and reasonable, as required by law, taxing the fees of the state’s attorney at $10.10, of the justice at $7.99, of the officer at $26.40, and of the witnesses at $15.22 — in all $59.71, and drew orders therefor, as he had a right to do, in favor of the several persons entitled, upon the then treasurer of Peacham, the town that was, as he believed, liable to pay said costs, and made a return to said treasurer as required by law; that on July 1, 1872, and again after that time, the relator presented said orders for payment, but that though legally bound to pay or accept them, the respondent refused, and at the time of the making of the petition still refused, so to do ; that the relator drew an order in favor of the officer for $26.40, and an order for the remainder of the costs in favor of Charles H. Davis, but that the respondent refused to pay them, and they were returned to the relator ; and that the orders so drawn were in all eleven in number, and were “ in favor of the several persons entitled to the same as provided by law.” Prayer for mandamus to compel the respondent to pay the relator the sum of $59.71, with interest thereon.</p> <p>The answer alleged that the petitioner’s remedy was ample by action on the orders; that there was not, and never had been since the respondent was treasurer, any funds in the treasury for the purpose of paying the bills of costs set forth in the petition, and that the town had raised no funds to pay said costs, all the money in the treasury having been raised for other and special purposes. The answer further alleged that at the time of the trials referred to in the petition, said Springer had been already tried upon a grand juror’s complaint for the same offence and acquitted, as appeared of record, and that cost was taxed and an order therefor drawn and paid ; that the state’s attorney made the complaint in the petition referred to for a consideration, well knowing that said Springer had been once tried and acquitted; that upon the trial before the relator said Springer pleaded autrefois acquit, but that the relator, knowing of the former trial, took no notice of the plea ; that the respondent believed that there was a conspiracy between the relator, state’s attorney, and the father of the said Jessie, to oppress said Springer; that the prosecution was not made in good faith ; that after two trials Springer, in accordance with the order of the court, appeared for the third, but that neither the relator nor the state’s attorney appeared, nor any one in their behalf; that at one time when the parties met for trial, the state’s attorney caused the suit to be dropped and the prisoner to be discharged ; made a bill of costs and presented it for payment, which was refused ; whereupon he caused the prisoner to be re-arrested, and the prosecution to be continued, in order to give the relator and others a better opportunity to collect the costs, which were illegal; that the bill of cost presented was illegal and exorbitant; and that the petition was not brought in the interest of the relator nor of, any one to whom the costs might belong, but of the relator’s attorney and another. The answer also denied that the relator made return of the prosecution as required by statute, and also that the relator had himself presented any order for payment.</p> <p>The respondent moved to dismiss the petition, for that the petition was not signed and sworn to by the relator, but by his attorney.</p>

Case against a sheriff for the neglect of his deputy to levy an execution. Held: though taken and sold on the execution; and it was mutually understood that Weeks should hold the goods without sale till the sixty days expired, and Weeks acted on that understanding. Jerauld was adjudged a bankrupt within a few days after the expiration of the sixty days. Weeks then turned over the goods attached to the assignee.

[In Chancery.] Appeal from the Court of Chancery. The bill alleged that Orra Crosby, the testator, died on October 27, 1872, and that commissioners were appointed on his estate; that defendant presented a. claim of over $3000 to the commissioners, which they disallowed ; that defendant appealed, and that the appeal was still pending ; that the claim thus presented was for a pretended breach of covenants in a deed from the testator to the defendant, dated May 1, 1866,…

Assumpsit under s. 13, c. 20 of the Gen. Sts., to recover the expense of taking caré of Aurela Gray, an alleged transient person. Plea, the general issue, and notice of special matter. Trial by jury, December Term, 1876, Caledonia County, Ross, J., presiding. Aurela Gray was the wife of Reuben Gray, and it was conceded that Reuben Gray had a settlement in Sheffield.

<p> Costs in Petition for Mandamus. </p> <p>A petition for mandamus was defended on several competent grounds. The court considered but one ground, and held that sufficient. Held, that defendant was entitled to costs on all the grounds ; but not for the answer, nor for solicitors’ fees for attending the taking of depositions before a magistrate.</p>

Trover for two sets of platform scales, brought to the City Court of Burlington. Trial by the court, Tyler, J. It appeared that the plaintiffs sold and delivered the scales in question to M. D. Fuller on October 17, 1874, for $290, on condition that they should remain the property of the plaintiffs until paid for, and that the contract was duly reduced to writing, and the writing signed by Fuller.

Assumpsit on thirteen coupons for interest for six months from September 1, 1875, on thirteen five-hundred-dollar bonds issued by the defendant town in aid of the Essex County Railroad. Held: or what should be the evidence of it, it must be implied that the officers authorized to issue the bonds were clothed with authority to determine whether such precedent conditions have been complied with, and that their decision was conclusive in favor of a bona-fide holder.

<p> Mandamus. Practiee. Judgment. Divorce. Procedendo. </p> <p>The final entry in a case, made by direction of tbe court, on the docket of a given term, is conclusive evidence of tbe disposition made of the case for that term ; and what judgment or order shall be made in a case, is within the control of the court until such term shall have ended by adjournment without day. Thus, if a decision made earlier in the term, but not acted upon, be changed or vacated by the final entry directed by the court on its own motion, mandamus will not lie to compel the court to proceed to judgment in accordance with such decision. Nor is mandamus a remedy against an erroneous order or judgment.</p> <p>A petition for divorce, unlike an ordinary proceeding at law, involves the interests, not only of the parties thereto, but of their children and of the public. Therefore, where after the hearing of such a petition brought by the mother of two young children, the court declined to grant a divorce, and, of its own motion, continued the case, with a view to a reconciliation of the parents and the probable better support and education of their children, a writ of procedendo will not lie, commanding the court to proceed to judgment.</p> <p>A husband against whom the wife had brought a petition for divorce, and upon whom she had procured an order of court for temporary alimony, having absconded from the jurisdiction of the court, and beyond the reach of process to enforce obedience to such order, brought a petition for mandamus to compel the court to proceed to judgment upon the wife’s petition in accordance with a previously announced decision in the petitioner’s favor. Held, that as he had put himself in alienage and enmity to the judicial authority of the state, he could not sustain the petition.</p>

<p> Mortgage. </p> <p>Defendant and S. and H. executed their joint and several promissory notes to G., H. being in fact a surety. Defendant thereupon executed a mortgage of certain property to H., conditioned that if H. should pay any part of the notes, or suffer in any way in consequence of signing them, the mortgage should be her indemnity, and otherwise be void. H., having never paid any part of the notes, nor suffered in any way in consequence of signing them, assigned the mortgage to I. for foreclosure, and I. brought a petition, alleging that he was the owner of the notes, and that they were unpaid. Held, that there was no breach of the condition ; that I. had only the rights of H. ; and that the allegation of ownership and non-payment did not entitle the petitioner to a decree.</p>

Assumpsit in the common counts, with a general count for “ money paid for the rent of a certain pasture,” and “ for the use and occupation of a certain pasture.” Plea, non-assumpsit, and trial by jury, June Term, 1877, Caledonia County, Ross, J., presiding.

<p>[In Chancery.]</p> <p>Appeal from the Court of Chancery.</p> <p>The bill alleged that on April 15, 1856, the orator and Daniel P. Pales executed and delivered to the defendant Beaman, who was an attorney at law, their promissory note for $1500, payable on demand with interest annually, together with a mortgage to secure the same on certain land described therein as twelve equal undivided seventeenth - parts of a certain farm whereof Preelove Hyde, the orator’s mother, who had a dower interest therein, had possession, which she retained until her death, which occurred after the bill was filed ; that the orator was in fact surety for the said Pales ; that on .April 1, 1867, said Beaman procured a decree of foreclosure of said mortgage for the sum of 1848.23, whereupon the orator called on said Pales for protection from the consequences thereof, and Pales agreed to protect him, all of which said Beaman then well knew; that the orator being unused to such matters, and relying on such assurance, and on said Beaman’s knowledge thereof, and being notified by no one in relation to the matter, gave it no further attention, and always thereafter and until within a short time before the filing of the bill, believed that said Eales paid said decree ; that nevertheless said Eales did not pay it, but allowed it to become absolute ; that the orator’s interest in said farm consisted in a remainder after said dower interest, and that at the time the decree became absolute, its value was at least $6000 ; that the orator had other property, and could easily have redeemed said mortgaged premises ; that for a long time before the execution of said mortgage to a time not long before the filing of the bill, said Beaman was attorney and counsellor for the orator, among other things, in all matters between the orator and said Fales, of which said mortgage was a part, that their relations .were confidential, and that the orator relied on him in all matters placed in his charge; that said Beaman well knew the facts alleged, and knew that the orator would not knowingly have allowed said decree to become absolute; that therefore said Beaman held the title to said premises in trust for the* orator, and subject to the orator’s right to redeem ; that on November 3, 1871, said Beaman exchanged his interest in said property with Nelson G. Hyde, a grandson of said Ereelove, who then well knew the facts alleged, and who was in possession of said farm under an arrangement with said Ereelove, made pursuant to a scheme on his part to possess himself of her interest, for a mortgage on certain other property of less value than the orator’s interest in said farm, and of about the value of said Beaman’s interest therein as fixed by said decree; that said Nelson C. was also a client of said Beaman’s, and had intimate business and personal relations with him, and procured said exchange to be made ; that said exchange was therefore in fraud of the orator’s rights, and that the orator ought in equity to be allowed to redeem as to said Nelson 0. Prayer, that said decree be opened, and the orator allowed to redeem, or that said Beaman be decreed to account with the orator as to the matter of his said trust; and for further relief.</p> <p>The answer of defendant Beaman admitted the execution of the note and mortgage as alleged, but averred that the orator was a principal and not a surety in said note ; admitted the foreclosure' of said mortgage as alleged, but denied all knowledge of, and belief in, the alleged agreement by said Eales to protect the orator from the consequences of said decree ; alleged the recording of said decree in the town clerk’s office ; admitted that Beaman had acted as counsel for the orator, but denied that he ever had so acted in the matter of said mortgage, or that the relation of counsel and client ever existed between him and the orator in relation to said mortgage, or that the orator had ever reposed any trust or confidence in said defendant in relation to said mortgage that could in any way affect said defendant’s right to collect the note thereby secured, and to avail himself of said decree, as the orator well knew ; alleged that said defendant did not know whether the orator easily could or would have redeemed said property before the decree became absolute, but that from the orator’s conduct in not paying the mortgage debt though often requested, he was led to believe and did believe that the orator sought to evade its payment; denied the holding of the property in trust, and the orator’s right to redeem ; denied knowledge on the part of said defendant of the value of the property, but alleged said defendant’s belief that it was not much more than the amount of the decree ; admitted the sale and conveyance to Nelson C. Hyde as alleged, but denied that said Nelson knew of any confidential relation between said defendant and the orator ; denied knowledge on the part of said defendant of any scheme of said Nelson’s to get possession of a part of said property ; denied that said Nelson concealed his said purchase ; and denied the existence of intimate relations between the defendants.</p> <p>The answer of defendant Nelson C. admitted the execution of said note and mortgage, the foreclosure thereof, and the alleged relationship between himself and the orator; denied all knowledge on the part of said defendant at the time of his alleged purchase from said Beaman, that the orator was a surety only on said note ; denied all knowledge on the part of said defendant of confidential relations between said Beaman and the orator, and of said Beaman’s alleged holding in tntst; and alleged that said defendant believed that the title was absolute in said Beaman ; denied that said defendant knew that the orator was ignorant that said title had become absolute ; denied th» alleged scheme on his part to possess himself of said Preclove’s property ; admitted the alleged purchase of said property, and denied concealment thereof; and alleged that at the time of said purchase the property was worth but little if any more than the property given in exchange therefor.</p> <p>The answers were traversed and testimony taken. At the hearing, in Rutland County, the Chancellor dismissed the bill. Appeal by the orator.</p>

Assumpsit, appealed from the judgment of a justice of the peace. Plea, the general issue, with notice of special matter and tender, and trial by jury at the June Term, 1877, Caledonia County, Ross, J., presiding, and verdict for the plaintiff.

<p>This was a petition to the Court of Chancery, under s. 13, c. 68, Gen. Sts., for an order for the transfer of a homestead right on payment of its prescribed value.</p> <p>The petition alleged that at the June Term of the Caledonia County Court the petitioner and Allen Pope procured a decree of foreclosure on a mortgage that they then held on a farm in Dan-ville, whereon Abial C. Palmer, the mortgagor, then lived, and that said decree had become absolute ; that afterwards said Pope sold and conveyed his interest in said premises to the petitioner, and that the petitioner was the owner thereofthat Sophia Palmer, the wife of said Abial C., was living at the time of the execution of said mortgage, and was still living, but that she did not sign said mortgage, so that the petitioner had not acquired the homestead right in said premises; that the house and barns on said premises, and the half acre of land therewith, occupied by said Abial C. and said Sophia as a homestead, much exceeded $1000 in value, and that a severance of such homestead would greatly depreciate the value of the residue of said premises, and cause great inconvenience to all parties interested therein, and nearly ruin the petitioner’s said property ; and that the petitioner had offered said Abial C. and said Sophia the sum of $500 in discharge of their homestead right; but that they refused to accept the same and to discharge their said right. Prayer, that said homestead be ordered to be transferred to the petitioner on payment of $500 in discharge thereof.</p> <p>Commissioners were appointed, who reported that the petitioner was the sole owner of all of said premises except the homestead right of the petitionees, having obtained title thereto by decree of foreclosure for $3,040; that the petitioner had paid other mortgages on the farm to the amount of $2,859; that there were further costs by reason of said foreclosure and a large amount of interest on said sums that the petitioner had paid ; that petitionees occupied the premises as a farm, which consisted of 185 acres; that the buildings were well located — the barns on one side of the highway and the house on the other — and the house well supplied with water ; that the house was very valuable to said farm on account of its site, its supply of water, and convenience of its situation with reference to the barns; and that said homestead could not be occupied in severalty without great inconvenience to all parties interested; that the house and half an acre of land with it were worth $2000, and that by reason of the location, surroundings, and supply of water, they were worth $2500 to the petitioner for the purposes of said farm, there being no other location that would' so well accommodate the farm.</p> <p>The petitionees moved to dismiss, for that, as by the report of the commissioners it appeared that there was a homestead to be set out from other real estate, the petition should have been brought under s. 12 instead of under s. 13, c. 68, Gen. Sts. They also moved to set aside the report for uncertainty and insufficiency.</p> <p>At the December Term, 1876, Caledonia County, the court, Ross, Chancellor, decreed that the petitionees convey their homestead right to the petitioner within ten days after payment by him of $500, such payment to be made by September 1, 1877 ; that in default of such conveyance, the decree should operate as such conveyance ; and that the petitionees should vacate the premises by October 1st. Appeal by the petitionees.</p> <p>The petitionees have the option under the statute to retain the homestead on payment of $1500 — the difference between the appraised value of the homestead and the exemption. May order, in^the statute, is equivalent to shall order. Gen. Sts. c. 68, s. 13 ; Redfield, J., in Downer v. Eazen, 10 Vt. 418; 1 Swift Dig. 13 ; Minor v. Mea. Bank of Alexandria, 1 Pet. 64.</p> <p>The petitioner’s remedy was under s. 12, c. 68, Gen. Sts. Sec. 13 is applicable only to cases where there is not over half an acre of land with the homestead.</p> <p>The petitionees having filed no answer, the facts set forth in the petition are admitted to be true. It follows that the orator through default of the petitionees has been compelled to take the farm in payment of the petitionees’ debts at about $6000, and that the value of the farm is about $5000, from which the homestead is to be deducted. The commissioners find that it would injure the orator to the amount of $2500, to have the house and half acre of land, with the water, cut out and owned and occupied by another. And the report fixes the value of the homestead premises at $2000. It would, therefore, be inequitable to order the petitionees to take the whole at $2000, .and pay $1500 in money to the petitioner.</p> <p>By consenting to the appointment of the commissioners, the petitionees have submitted the matter to their decision. Their decision is therefore final. It only remained for the court to enforce the decision and finding by proper decree and process.</p> <p>The statute, s. 13, c. 68, Gen. Sts., gives no such option as the petitionees claim. It expressly provides that “ the court may order” &G. The power thus given to the court is not limited. The language of the statute shows clearly that the whole matter rests in the discretion of the court, subject to the sole limitation that the homestead holder cannot be compelled to take the whole premises except at his option. But here the petitionees never made any “ option ” either before the commissioners or before the chancellor. It is now too late.</p> <p>It is objected that the court has no jurisdiction because the farm, of which the house and land are a part, exceeds half an acre in area. This objection is not tenable.</p> <p>The orator tendered the defendant $500 before commencing these proceedings, and it was refused. The litigation was made by the petitionees, and they should pay the costs.</p>

<p>Criminal Law. Evidence. Opinion. Practice. Handwriting. Expert. Examination of Witness. Gen. Sts. c. 30, s. 85.</p> <p>On trial on indictment for forging the signature on a bill of exchange, it appeared that on the day when the forgery was alleged to have been committed, 0., whose signature was alleged to have been forged, met the respondent, who was then one of a firm of insurance agents, to settle with him a loss under a policy of insurance in which 6. was the assured, issued to him through the respondent and his partner. G. testified that when they were met, respondent said he had forgotten the sum estimated to be due, and asked him to give him a memorandum thereof, with his signature thereon in full, which he did, the respondent saying that the company would send a check, and that he would send it to G. as soon as it came. The respondent testified that instead thereof he then made a draft on the company for the amount of the loss, payable to G., and that G. then wrote the signature in question on the back thereof. The state, to corroborate the testimony of G., offered three postal cards afterwards written by G. to respondent’s firm, asking if the check had come. Respondent testified that he left home on the day of the date of the last of said cards, and subsequently left the state, and that he had been sick and absent from his office for some time before that, and objected to the admission of the cards in evidence, for that he was out of the state when they were taken from the files of his firm, and for that it did not appear that he had ever seen them. There was evidence tending to show that respondent saw the first card. Held, admissible, to show that the conduct of G. at the time he wrote the cards was consistent with his testimony, and that their admissibility was not affected by the question of whether respondent had seen them or not.</p> <p>The state, to fix the time when G’s pecuniary interest in the matter in controversy ceased, was allowed to show that the insurance company on which the draft in question was drawn, “ became convinced as early as ” a certain day named, that the signature in question was forged, and offered to pay the amount of his loss, and did pay him some months afterwards. Held, erroneous, for that it was virtually admitting in evidence the opinion of the insurance company as to the genuineness of the signature.</p> <p>When evidence is offered which, standing alone, is not admissible, and is unaccompanied "by any claim that evidence will be introduced having such a relation to it as to make it admissible, it is error to admit it, and the error cannot be cured by instructing the jury to disregard it.</p> <p>The state offered and was allowed to introduce in evidence as samples of handwriting, checks drawn by G. on the bank where he kept deposit during a period beginning several months before and ‘ending several months after the time of the alleged forgery. Held, that as it did not appear that the checks or any of them were made at a time when G. had an interest to establish the fact of the forgery, they were admissible for comparison.</p> <p>The state introduced a witness who testified from his knowledge of G’s handwriting that he was of opinion that the signature in question was forged. On cross-examination, a signature that had been used in the trial,.and was acknowledged to be genuine, was shown to the witness, and he was asked to point out the difference between that signature and the signature in question. The testimony was excluded, for that the witness was not an expert. Held, erroneous.</p> <p>When new matter is called out on cross-examination, the witness, as to such matter, is the witness of the party who calls it out, and may be cross-examined as such.</p> <p>The court having ordered that the witnesses for the state be examined separately and apart from each other, the state, to corroborate the testimony of one of its own witnesses, offered the testimony of the sheriff of the county, who had remained in the court room; and the testimony was received. Held, that the statute providing for such separate examination could not have intended the exclusion of the necessary officers of the court; that its literal enforcement must be to some extent discretionary with the court; and that the judgment would not be reversed for the exercise of that discretion, unless some right of the respondent was thereby prejudiced.</p> <p>The state, to show that respondent had knowledge of the sum to be paid G. when he went to meet him on the day when the forgery was alleged to have been committed, introduced respondent’s then partner, with a telegram stating the sum, which purported to have been sent by G. to respondent’s firm in answer to a telegram from them to him, on the third day before the day of that meeting, and received at the telegraph office in the town where respondent and his partner resided at 11:47 o’clock in the forenoon ; and offered to show by him that respondent left home at 9 o’clock, as witness thought, on the morning of the day the telegram purported to have been received, and did not return until 11 o’clock on the morning of the day of said meeting; that the witness was accustomed, in respondent’s absence, to put letters and telegrams relating to money matters on respondent’s table, and that respondent was accustomed to examine them on his return. The witness was allowed to testify, and the telegram to be read. Held, no error.</p> <p>G. was also produced with an uncertified copy of a telegram purporting to have been sent to him on the same day by respondent’s firm, asking what that sum was, and witness testified that it was a true copy. It appeared that the original telegram had been destroyed by the telegraph company. The telegram was allowed to be read. Held, no error.</p> <p>Guilt of a crime is not to be inferred from the fact that the accused has ability to commit it. Thus, the state offered testimony tending to show that respondent was skilled in the imitation' of the peculiarities of signatures, and the testimony was admitted. Held, that as it did pot appear that respondent had first introduced evidence tending to show that he had not capacity to commit the act alleged, the evidence was inadmissible.</p>

<p> Practice in the Order of the Admission of Testimony in Criminal Cases. Relation of the Slate to its Witnesses. </p> <p>In the trial of both civil and criminal cases, the order in which testimony shall be admitted is discretionary with the court rather than matter of strict right; and error is not predicable on the exercise of that discretion, unless it is manifest that the excepting party has been thereby surprised or in some way put to legal disadvantage.</p> <p>Although in the trial of criminal cases in this State the prosecution has generally been required to put in its whole case in the opening, and been confined in the close fco testimony in rebuttal, — yet, that practice has never gone to the extent of rejecting in the close testimony tending to weaken the evidence on the part of the respondent because also tending to strengthen the testimony introduced by the prosecution in the opening.</p> <p>The respondent claimed that P., whom the State introduced as a witness, was really guilty of the alleged murder, and introduced evidence showing that she had made threats against the murdered man, and had had a fight with him, and that she made statements on the morning of the discovery of the homicide, contradictory to her testimony. The court charged that as it was the duty of the prosecution to show to the jury everything that might shed light on the truth, it was its duty to produce P., that the jury might hear her story ; that the jury were to give it such credit as they thought it was entitled to ; and that if they discarded it, it should neither aid nor injure the case made by the State. Held, that it was to be presumed that the jury were charged that the State must prove the respondent guilty ; and that the charge was therefore not erroneous as leading the jury to disregard P’s testimony as bearing on the question of her connection with the crime alleged.</p>

<p>Intoxicating Liquor. Gen. Sts. c. 94, s. 32.</p> <p>In assumpsit under s. 32, c. 94, Gen. Sts., for money alleged to have been paid for intoxicating liquor sold in violation of law, it appeared that defendant, who was a druggist, sold his stock in trade, including a quantity of intoxicating liquor, to plaintiff, for a gross sum, reserving a lien thereon for a part of the purchase-money, for which plaintiff gave his notes. Plaintiff, having sold a part of the liquor, fell in arrear with his payments to defendant to an amount greater than the value of the liquor, and defendant took possession. Shortly afterwards, defendant consenting and joining in the bill of sale, plaintiff sold the goods to R., who paid defendant the remainder of his claim thereon. Held, that as it did not appear that plaintiff had paid anything towards the liquor at the time of the sale to R., and as the sale to R. was in effect a sale by defendant, and the payment to defendant by R. therefore not a payment on plaintiff’s account, the action would not lie.</p>

<p> Homestead. Mortgage. Subrogation. </p> <p>L. attached M’s premises on a cause of action not enforceable against'the homestead. The premises were then subject to a mortgage that covered the homestead, and to another attachment, wherein execution was subsequently levied on the premises, a homestead set out, and the mortgage apportioned between the homestead and the residue of the premises. L. obtained judgment, and levied his execution on the whole premises, in disregard of M’s homestead right therein, and subject only to the mortgage. Subsequently L. and another who was equitably interested in his judgment, paid the whole mortgage in order to save their rights under their levy. 3.eld, that the homestead should bear its proportion of the mortgage debt; that by thus paying the mortgage, the parties became subrogated to the rights of the mortgagee, and could enforce against the homestead the payment of its proportion of the mortgage debt. Ross and Dunton, JJ., dissenting.</p>

<p> Prescription. User. Character of Possession. </p> <p>In 1798, the original proprietors of Burlington “ set off for the use of the publiek” a certain square in the village of Burlington. In 1809, the selectmen of Burlington, pursuant to an enabling act, executed a perpetual lease of a lot in the north-east corner thereof to the owner of a building that had been previously erected thereon for use in part as a jailor’s house and in part as an inn. In 1839, through several mesne conveyances, the title to the lot and building came to the orator, who immediately converted the building into stores, and as such the building thereafter continued to be used. The building covered the entire lot, except a strip on the west side eleven feet wide. Eor many years the square was vacant, except so far as occupied by the orator’s building and a few other buildings, public and private, south of it on the same street line ; and until about 1835 it was unenclosed, common, and freely traversed by the public in vehicles and on foot in every direction. In 1835, the town enclosed the western part of the square with a fence, but left a vacant space about three rods wide extending from street to street along next west of the orator’s building and the buildings south of it. That space or way was thence taken care of by the town and the city the same as other highways and streets were, and was freely traversed by the public in vehicles and on foot, The eleven-feet strip was traversed in the same manner by the public in passing and repassing, and by the public and the orator’s tenants in going to and from the stores in the orator’s building, and was kept in repair by the orator or his tenants. The steps of the building projected onto it several feet in some places, and on the north end of it, about three feet from the building, was a post that had been used in connection with one of the stores for more than thirty years ; but there never was any fence or other apparent mark separating the strip from the rest of the square. Down to about 1830, the only public and unobstructed way of approach to the building was on the west side and over said strip; but about that time the street on the east side of the square and of the several buildings was wrought for travel; the principal entrance, however, continued to he on the west side until about 1840 ; and the entrance on that side continued to be as much used as the other until about 1874, wheu the defendants, street commissioners of Burlington, acting under authority of the city council, sought to erect curbing along the north and south sides of the square so as to exclude carriages and teams from said way ; whereupon the orator filed a bill to restrain them. Held, that as the use by the public of the eleven-feet strip tended rather to the creation of an easement in the orator than of a right against him, the orator had title thereto against the right of the city or of the public to exclude him from such use thereof as he had thitherto had ; but that there had been no use of that part of the square next west of that strip such as to change it from a common to a highway, nor such as to give the orator a right therein adverse to that of the public.</p>

<p> New Trial. Issuing of Execution. Damages. </p> <p>On judgment by consent and reference for the assessment of damages, tbe referee reported in tlie alternative so as to raise a legal question as to the amount of damages recoverable. On coming in of the report the clerk issued execution for the larger sum. Held, that the execution was irregularly issued, and that the defendant, being thereby deprived of his legal right to contest the acceptance of the report, was entitled, on petition for a new trial, to a re-assessment of damages. •</p> <p>In an action by the husband for loss of service, &c., of the wife by reason of an injury dn a highway, no recovery can be had for money expended that belonged to the wife.</p>

Complaint por Bastardy prosecuted by the town of Ryegate. Plea, not guilty, and trial by jury, at tbe June Term, 1877, Cal-, edonia County, Ross, J., presiding, and verdict of guilty. It was conceded that the child, which was about a year old, was supported by the town.

Case for negligence in keeping certain United States bonds. Plea, the general issue, and trial by jury, April Term, 1876, Windham County, Ross, J., presiding. The case was first tried at the September Term, 1874, when a verdict was directed, pro forma, for the plaintiff, to which the defendant excepted, and the judgment was reversed by this court, and the cause remanded.

Assumpsit. Pleas, general issue, payment, and accord and satisfaction. Trial by jury, September Term, 1877, Pierpoint, C. J. presiding.

. General Assumpsit. Pleas, the general issue, Statute of Limitations, and payment. Trial by the court, September Term, 1877, Pierpoint, C. J., presiding. Defendant was trustee under the will of Mary M. Catlin, his wife, and on July 25, 1870, Henry G. Catlin, one of the legatees and cestuis que trust under the will, executed the following order : Burlington, Vt., July 25th, 1870. To II. W. Catlin, trustee under the will of Mary M. Catlin.

Debt on bond conditioned for the faithful performance by defendant French of the duties of first constable and collector of taxes of the town of Essex.

<p>This was a petition to this court for the bringing forward of a case on the docket, and the making of certain orders therein. The petition alleged that on February 10, 1874, S. L. Reynolds and another brought assumpsit against Paul Laclair as principal defendant and John Severance as trustee, returnable before a justice ; that Severance appeared before the justice and disclosed, and that the petitioners appeared as claimants; that on trial the justice decided that the petitioners were not entitled to the fund, and adjudged the trustee chargeable; that the petitioners appealed, and entered their appeal at the April Term, 1874, when the case was referred; that at the April Term, 1875, the referee reported that the petitioners were entitled to the fund, and the court rendered judgment thereon accordingly, to which the plaintiffs excepted ; that judgment was affirmed by the Supreme Court at the January Term, 1876 ; that the petitioners, in the prosecution of their claim, which the plaintiffs resisted from the beginning, incurred costs in the justice trial, taxed by the justice at $12, before the referee, taxed at $22.28, paid $80 to the referee, to get his report, incurred further cost in County Court, taxed at $11.34, and in this court, $5.10; that petitioners were entitled to recover the same of the plaintiffs, but that the clerk of this court refused to tax and allow the same, on the ground that no judgment for costs was rendered in this court, as required by Gen. Sts. c. 34, s. 53, and because the record showed none; that the question of costs was not presented for the consideration of the court, because petitioners’ counsel were of opinion that the judgment carried costs as of course. Prayer, that the cause be brought forward on the docket, the record revised, and such order made as to costs of petitioners and the other parties as justice required. The petitionees answered, alleging that it did not appear by the record that any costs were awarded by the referee, the County Court, or this court, but that it did appear that the petitioners appealed from the clérk’s alleged refusal to tax costs, to the presiding judge of said County Court, whose decision was conclusive. . The petitionees also moved to dismiss.</p>

Assumpsit on a joint and several promissory note for $600, signed by the defendants, Hiram Shattuck, L. C. Snyder, and A. H. Chesmore, payable to plaintiff or bearer, in one year from date. Chesmore and Snyder made no defence, but Shattuck pleaded the general issue and Statute of Limitations. Trial by jury, April Term, 1877, Pierpoint, C. J., presiding, and verdict against all the defendants.

[In Chancery.] Petition for Foreclosure in common form. The petition was brought to foreclose a mortgage on lot No. 50 on Drew’s plan of city lots in the city of Burlington, executed by Ellen Welch and Patrick, her husband, on April 10, 1873, to secure to Catherine Kelley the payment of $450, specified in their nine fifty-dollar notes of that date, given for the purchase-money of said lot, of which notes the petitioners had become the owners, through one Patrick McKenzie, to…

Trover for a set of Jewett milk-pans. Plea, the general issue. Plaintiff waived all objection to the admission of evidence tending to show that defendant had title to the property. Trial by jury, September Term, 1877, Pierpoint, C. J., presiding. It appeared that said pans had been the property of H. E. Pettingill, plaintiff’s father, and kept and used by him on a farm in North Troy, of which he was in possession, until some time in the fall of 1875.

Trespass, with a count in trover, for a wagon, parts of two harnesses, and a straw-cutter, alleged to be the separate property of Rhoda Spooner, the plaintiff wife. Plea, the general issue, and special pleas, alleging that the defendant, as deputy sheriff, attached the property in question on a writ against the plaintiff Oliver EL Spooner, in favor of Terrill Brothers, and sold the same on execution issued on judgment rendered thereon.

<p>Nuisance. Intoxicating Liquor. Acts of 1876, No. 33.</p> <p>On trial on complaint under No. 33, Acts of 1876, for maintaining a nuisance in the keeping of a place of public resort for the unlawful sale of intoxicating drink, it appeared that the place in question, when searched, contained small quantities of different kinds of spirituous liquor, decanters, glasses, &c., and had the appearance and the usual appliances of a bar-room; and the court found that the liquor was “kept for sale contrary to law;” but it did not appear that the place was then “used as a place of public resort.” Held, that it was not to be implied that the place was a place of public resort, but that that fact should have been proved.</p>

General Assumpsit for half of arbitrators’ fees. Trial by the court on an agreed statement of facts, September Term, 1876, Royce, J., presiding. Plaintiff and defendant submitted certain differences to arbitrators by a written submission silent as to costs of arbitration. The arbitrators heard and decided the matters submitted, and awarded that plaintiff pay their fees, amounting to $60.

[In Chancery.] Appeal from the Court of Chancery. The bill was brought by the Central Yermont Railroad Company, as receiver and manager under direction of the Court of Chancery of the Yermont Central and the Yermont & Canada Railroads, to restrain the Woodstock Railroad Company from extending its road across the tracks of the Yermont Central Railroad at White River Junction, at which place there was a junction of those roads and of the Northern and the Passumpsic Railroads.

These cases were assumpsit on policies of insurance. They were referred, with a like case between the plaintiff and the Windsor County Mutual Fire Insurance Company, at the April Term, 1877, and a rule issued to the referees at the same term.

[ In Chancery. ] Appeal from the Court of Chancery. The bill alleged that on August 23, 1875, the defendants, combining and conspiring, &c., falsely and maliciously threatened to accuse the orator of an assault with intent to rape defendant Dewey, and to prosecute him therefor, defendants then and there intending to defraud the orator of his good name, and to extort money from him to the amount ot $10,000; that defendants, in furtherance of said conspiracy, then and there…

<p> Pleading in Equity. Parties Defendant. Multifariousness. Corporations. Joinder of Officers for Purposes of Discovery. </p> <p>The directors of corporations are trustees of the stockholders, and liable for the willful Joss or misappropriation of the trust funds or property; and, in a bill against a corporation, the officers of the corporation may be made parties defendant for purposes of discovery. Therefore a bill by a stockholder against the corporation and its directors and treasurer, alleging various fraudulent transactions between various . directors, and various directors and the treasurer, on one hand, and the directors as a board on the other, out of which such directors and treasurer made great gains at the expense of the corporation, and praying for restitution of gains so made, and for discovery relative to such transactions, is not multifarious; for although the defendants may have distinct grounds of defence, only one general right is asserted by the orator.</p>

<p>Juror. Challenge for Cause. Evidence. Hearsay. Confession. Degrees of Murder. Acts of 1869, No. 44.</p> <p>An unexpressed opinion as to the guilt oí a respondent, unaccompanied by prejudice against him, is not sufficient ground for challenge for cause.</p> <p>On trial for murder, the defence proceeded on the ground that at the time the act was committed the respondent was intoxicated, and laboring under some form of acute mania, or delirium, resulting from the excessive use of alcoholic drink. The defence asked one of its witnesses, who had visited the respondent in jail shortly after his commitment, and there had conversation with him, to state that conversation. On objection, evidence of the conversation was excluded ; but the witness was allowed to state from what he noticed at the time of that visit, and from the respondent’s appearance, what he judged the condition of the respondent’s mind to be— whether sane or insane. Held, that the respondent could not be allowed to make substantive evidence in his own favor by proving his own declarations out of court in that way ; and that there was no error.</p> <p>Confessions procured by a promise from the jailor to a prisoner, chained and in solitary confinement, that he shall be unchained and allowed to associate with other prisoners on making a full confession, are not subject to objection on account of the way in which they are obtained — the promise being of a temporary and collateral favor, and not of a favor in the matter of the punishment for-the crime charged.</p> <p>The application of the common-law'rule, that a criminal offense is neither excused nor mitigated by the voluntary intoxication of the person who commits it, in trials for murder, is not affected by No. 4á, Acts of 1869, making degrees of murder. Thus, where it appears on trial for murder that the murder was done by some kind of willful, deliberate, and premeditated killing other than by means of poison or by lying in wait, the degree of the offense is not lessened by proof that at the time it was committed the respondent was intoxicated, any more than it would be if it had been perpetrated by means of poison or by lying in wait.</p>

<p>Case in two counts. Plea, the general issue, and trial by jury, April Term, 1877, Royce, J., presiding.</p> <p>The first count alleged, that whereas the defendants, being evil-disposed persons, and devising and intending unjustly, fraudulently, and maliciously to extort money from the plaintiff, to wit, the sum of, &c., theretofore, to wit, on, &c., at, &c., did falsely, unlawfully, wickedly, and maliciously combine, conspire, confederate, and agree together, falsely to charge and accuse him of having begotten one Arvilla Rouse, of, &c., a single woman, with child, and with being the father of a child with which the said Arvilla was then pregnant and about to be delivered, with intent thereby then and there to extort a large sum of money from him, to wit, the sum of, &c., and that in pursuance of said conspiracy, combination, confederacy and agreement the defendants, on, <fcc., at, &c., and on divers other days, did maliciously threaten to accuse the plaintiff with having begotten the said Arvilla with child, and with being the father of a child with which the said Arvilla was then pregnant, and of which she was then about to be delivered, and did, then and there, <fcc., and on divers other days, at, &c., threaten the plaintiff to cause and procure a criminal prosecution to be commenced and carried on against him with intent then and there unjustly, fraudulently, and unlawfully to obtain and extort from him by the means aforesaid, his money and property, to wit, the sum of, &c.; and averred that the defendants then and there, on, &c., by means of the said false, unlawful, wicked, and malicious combination, conspiracy and confederacy, and by means of said malicious threats, and in furtherance, of said conspiracy, did extort and procure from the plaintiff a large sum of money, to wit, &c.; by means whereof, &c.</p> <p>The second count alleged, that whereas defendants, being evil-disposed. persons, devising and intending unjustly, fraudulently, and maliciously to deprive the plaintiff of his good name and character, and to subject him, without any just cause, to the punishment prescribed by law in cases of bastardy, and to extort from him money, to wit, the sum of, &c., theretofore, to wit, on, &c., at &c., did falsely, unlawfully, wickedly, and maliciously, combine, conspire, confederate, and agree together, falsely to charge and accuse him of having begotten one Arvilla Rouse, of, &c., a single woman, with child, and with being the father of a child with which the said Arvilla was then pregnant and about to be delivered, with intent thereby then and there to extort from him a large sum of money, to wit, the sum of, &c., and that in pursuance of said conspiracy, combination, confederacy, and agreement the defendants, on, &c., at, &c., and on divers other days, did maliciously threaten to accuse the plaintiff with having begotten the said Arvilla with child, and with being the father of the child with which the said Arvilla was then pregnant, and of which she was then about to be delivered, and to charge the plaintiff with the support of said bastard child, and did then and there, &c., and on divers other days, at, &c., threaten the plaintiff to cause and procure a prosecution to be commenced and carried on against him, and with being the father of said child, and of and with the then future support of said child, with intent thereby then and there, unjustly, fraudulently, and unlawfully to obtain and extort from him his money and property, to wit, the sum of, &c.; and averred that the defendants then and there, on, &c., by means of said false, unlawful, wicked, and malicious combination, conspiracy, and confederacy, and by means of said malicious threats, and in furtherance of said conspiracy, did extort and procure from the plaintiff a large sum of money, to wit, the sum of, &c., and that the plaintiff suffered other great wrongs, &c.</p> <p>The court ruled that if plaintiff established all the allegations of the declaration he would not be entitled to recover, and ordered a verdict for defendants; to which plaintiff excepted.</p> <p>The decision was erroneous. The question was not raised in the manner required by any rule of pleading and practice. The decision was put upon the ground that, as the plaintiff was not charged with the commission of any crime, nor threatened to be so accused, only special damages could be recovered, and special damage was not alleged. But it is not necessary, to sustain the action, to allege that the defendants threatened to accuse the plaintiff of the commission of a crime, nor to allege special damages. 2 Hilliard Torts, 328, 329. Formerly the action could be sustained only when the commission of certain crimes was charged. But the action then in use has become obsolete, and has given way to an action on the case in the nature of a conspiracy, in which all that is required is to show that money or property was obtained by a fraud or extortion. Phillips v. Hoyle, 4 Gray, 568 ; 3 Pick. 38.</p> <p>Falsely to accuse one of being the father of a bastard child, and thereby to obtain money from him, is actionable. 2 Hilliard Torts, 325.</p> <p>The first count is fatally defective. It is not alleged therein that the plaintiff was not the father of the child of whose paternity defendants are charged with having threatened to accuse him. The truth of the alleged accusations is not negated except by the word falsely, which is insufficient. Gould PI. 169; 1 Chit. PL 271; Batehelder v. Kinney,-44 Vt. 150. It is not alleged that the plaintiff was put in any fear by reason of the alleged threats. The facts alleged do not constitute duress. Harmon v. Harmon, 14 Am. Rep. 556. The matters alleged to have been threatened do not constitute a crime ; hence, the alleged threat to commence a criminal prosecution could have had no foundation. Spears v. Forrest, 15 Vt. 435; Gray v. Fulsome, 7 Vt. 452.</p> <p>The second count is equally defective. It does not allege that the plaintiff was not guilty of the charges threatened. A simple threat to charge the plaintiff with being the father of a ^bastard child, and to commence bastardy proceedings against him for the support of such bastard child, gives no right of action. Kmmons v. Scudder, 115 Mass. 367. It is not alleged that the plaintiff was put in fear or duress.</p> <p>The allegation in both counts, that defendants extorted money, is not a sufficient allegation that plaintiff paid the money. The plaintiff could not have been deceived. The matters threatened were within his knowledge. Sheple Warner v. Page, 12 Vt. 519. No scienter is alleged.</p>

<p>[ In Chancery. ]</p> <p>Appeal from the Court of Chancery.</p> <p>In December, 1876, a petition was filed in this cause by the Central Vermont Railroad Company as receiver and manager of the Vermont Central and the Vermont & Canada Railroads, by various individuals who were alleged to be the owners respectively of bonds known as the first-equipment, second-equipment, third-equipment, Stanstead-Shefford-and-Chambly, guaranteed, and income-and-extension bonds, and by Thomas H. Perkins, J. H. Converse, and Estes Howe, represented as a committee acting in behalf of holders of bonds of all of' said several classes. The Vermont Central, the Vermont & Canada, the Rutland, the Ogdensburg & Lake Champlain, and the Missisquoi Railroad Companies, the trustees of the first and second mortgages on the Vermont Central Railroad, the trustees of the mortgage on the Missisquoi Railroad, the acting committee of the. holders of said first and second mortgage bonds, and various individuals alleged to be holders respectively of bonds under all of said mortgages, and of bonds of the other successive issues before mentioned, were made defendants thereto.</p> <p>The petition, which was heard by Royce, Chancellor, at St. Albans, in May, 1877, set forth, in substance, that for fifteen years the Vermont Central and the Vermont & Canada Railroads had been under the administration of the Court of Chancery in this cause, for the purpose of the execution of certain trusts in favor of the Vermont & Canada Railroad Company, the first and second mortgage bondholders of the Vermont Central Railroad, and the Vermont Central Railroad Company, particularly set forth in the decrees in said cause, especially in the so-called compromise decree of January 19,1864, and had been operated during that time by managers appointed by said court, and acting under its direction ; that during such administration the managers, by direction of the court, and for the purpose of executing said trust, had borrowed large sums of money, to wit, the sum of $700,000, for which they issued, under order of the court of September 7, 1865, ten-year, eight-per-cent, bonds, insufficiently secured by special pledge of certain equipment of the roads, of which sum $83,100 was outstanding, due, and unpaid, — the sum of $300,000, for which they issued, under order of the court of May 1, 1867, twenty-year, eight-per-cent, bonds, known as second-equipment bonds, and inadequately secured by a pledge of certain other road equipment, all of which bonds, together with $12,000 interest thereon, due November 1,1876, were outstanding and unpaid — the sum of 444,400, for which they issued, under order of the court of May 1, 1867, twenty-year, seven-per-cent, bonds, known as Stanstead, Shefford and Ohambly bonds, inadequately secured by pledge of the stock, and mortgage bonds of the Stanstead, Shefford & Chambly Railroad, all of which bonds, together with $15,554 interest thereon, due November 1, 1876, were unpaid, — the sum of $1,000,000, for which they issued under order of the court of April 13, 1869, twenty-year, eight-per-cent, bonds, known as third-equipment bonds, inadequately secured by pledge of certain other road equipment, all of which bonds, together with $40,000 interest thereon, due November 1, 1876, were unpaid, — the sum of $904,-000, for which they issued, under order of the court of May 17, 1871, twenty-year, eight-per-cent, bonds, known as guaranteed bonds, not specially secured, but constituting a general charge upon the trust property, and being indorsed by the Vermont & Canada Railroad Company, all of which bonds, together with $36,160 interest thereon, due July 1, 1876, were unpaid, — and the sum of $1,675,500, for which they issued, under order of the court of April 20,1872, thirty-year, eight-per-cent, bonds, known as income-and-extension bonds, of which the amount of $700,000 were set aside for the retirement of the first equipment bonds, and nearly all exchanged therefor, and subrogated to the same special security, and the remainder of which constituted a general charge upon the trust property, and all of which, together with interest to the amount of $67,020, due November 1, 1876, were unpaid; that in addition to the funded debt so created, there was a large outstanding floating debt against the trust property to the amount of $2,000,000, all of which was due, or about to become due. The petition further set forth, that the Central Vermont Railroad Company was incorporated by act of the Legislature in October, 1872, for the purpose of reorganizing the Vermont Central and the Vermont & Canada Railroad Companies; was organized in the spring of 1873, and at the time of the filing of the petition was the receiver and manager of said roads; that the management of said roads under the administration of the court had become cumbrous and unwieldy, and was no longer practicable, was attended with large and disproportionate expense, and that the best interest, both of the security holders and of the public, demanded that such administration should be ended, and the roads brought under corporate management; that the credit of the receiver and manager had been destroyed by malicious and wanton attacks in the public press and elsewhere, and the receiver and manager thereby rendered unable to borrow money necessary to the further operation of the roads; that the immediate payment of the floating debt was necessary; that the manager had no available means, present or immediately prospective, or otherwise, wherewith to meet said payments ; and that the only means of raising the money was the sale of the roads and trust property, which could not be beneficially sold in parts. The petition prayed that said trust debt might be declared a charge and first lien upon the Vermont Central and the Vermont & Canada Railroads and the equipment thereof, and upon all the assets and property of the receivership; that said roads, equipment, and property, might be sold under direction of the court, and that the receiver, the Central Vermont Railroad Company, might be permitted to become a bidder therefor ; that the Vermont Central and the Vermont & Canada Railroad Companies, and the trustees of the first and second mortgages, might be ordered to release their interest to the purchaser; that proof of claims might be ordered and distribution made, under direction of the court; and for general relief.</p> <p>The answer of the Vermont & Canada Railroad Company admitted that the Central Vermont Railroad Company had been acting as receiver in the cause, but alleged that as it had no bond on file as required by the order of the court, it was not so acting under direction of the court, as alleged in the petition. As to the claim of the various petitioners to hold certain bonds and represent certain securities, it left the petitioners to their proof. It alleged that the individuals represented as a committee of certain bondholders had no such interest in the securities represented as to enable them to join in the petition, and that the petitioning bondholders had no right to seek relief in that proceeding in any manner other than that provided by the terms of the orders under which the bonds were issued. The answer did not admit that the Vermont & Canada and the Vermont Central Railroads had been under the management of the court as averred in the petition, but alleged that the Vermont & Canada Railroad Company brought the original bill in the cause, April, 1855, on a lease of its road to the Vermont Central Railroad Company, whereby, rent being in arrear, said petitionee had a right to enter upon and operate the roads of both companies until the rent was paid by the earnings thereof, praying to be.allowed so to do, or that receivers be appointed to do the same ; that the defendants thereto appeared and pleaded, and such proceedings were had that in April, 1860, a decree was entered in said cause, from which both parties appealed, and the cause taken to the Supreme Court, where it was adjudged that said lease was valid and binding, and that said roads should remain in the hands of receivers until rents in arrear were paid; that a mandate was drawn in accordance with that judgment, and a decree entered agreeably to the mandate ; that in September, 1863, said petitionee filed a petition setting forth an agreement between the parties to the original bill for the issue of stock by said petitionee, and praying for a decree supplementary to the original decree; that thereupon on January 19, 1864, the court made a decree that provided that the capital stock of the Vermont & Canada Railroad Company might be increased to $2,000,000, and that that sum should thereafter be the basis for the computation of rent provided for in the original lease, except as thereinafter otherwise provided ; that the rent to be paid to said petitionee should be eight per cent, per annum on said sum, payable by the receivers semi-annually, in June and December of each year, and chargeable as a first lien on the property and income of both of said roads; that all incidental expenses of said petitionee should be paid by the receivers from the income of said roads; that said petitionee might issue stock in addition to said sum of $2,000,000, to the amount of $250,000, for the purpose of building an extension of its road to Canada line in the town of Highgate, and that such stock as to payment of rent and priority of lien should stand like stock previously issued ; that if it should thereafter become the legal duty of said petitionee under its charter to expend further sums of money in building or completing its road, further stock might be issued and treated like that previously issued. The answer further alleged, that in April, 1866, the trustees under the first mortgage on the Vermont Central Railroad filed a bill in the cause in the nature of a supplemental bill, to adjust the equities of the holders of first and second mortgage bonds of said road, whereupon a decree was made, whereby it was decreed, among other things, that in all the arrangements thereby provided for, the prior and paramount rights of said petitionee under said lease and prior decrees should be preserved inviolate, and that all payments thereby provided for should be made only out of the clear profits of the business lawfully applicable to such payments, and after said rent to said petitionee had been paid ; that in pursuance of the decree of January 19,1864, and by leave of court duly granted, the capital stock of said petitionee was duly increased until, on June 1, 1872, it amounted'to $3,000,000 ; that all of said stock had been recognized by payment of rent thereon as provided in the decree of 1864, and treated, without objection, as a prior and paramount lion on the income of said road, as in fact it was, and that the incidental expenses of said petitionee had also been paid from time to time as provided for in that decree ; that by virtue of said decree said petitionee became and was entitled to receive the sum of eight per cent, per annum on its capital stock, and that the same was a prior and paramount lien on the income of said roads, and to be first paid out of the same as aforesaid; that said decrees had not been vacated nor in any way modified, nor any proceedings had for that purpose, but that they were still in force; that it was also still the duty of said receiver to pay said petitionee its incidental expenses out of said income; that said rent and incidental expenses were in arrear in the sum of more than $1,000,-000 ; that under said decrees said petitionee was entitled to have the net income of said roads paid to it, and to have said roads operated for its benefit in accordance with the terms of said decrees, and that that could not be done if the prayer of the petitioners was granted. The answer further alleged, that in April, 1876, said petitionee presented a petition to the court, setting forth the foregoing facts, and praying that the Central Vermont Railroad Company, receiver as aforesaid, be ordered to pay the rent and incidental expenses overdue, with interest, to pay out of the net income of said roads the rent that had been adjudged to be a first lien thereon before using said income for any other purpose, and to pay said expenses as they should become due, according to said decrees ; and that notice of that petition was duly given, the petition duly entered in court, and was still pending. The answer admitted the issue, of the bonds of the seven-hundred-thousand-dollar issue, but denied that they were issued by the authority of said petitionee, and alleged that they were not a lien on the trust property, nor on the income thereof, nor on either of said roads, but if they were a lien on any part of the trust property, they were a lien on only certain equipment of said roads mentioned in the order respecting the issue of said bonds. The answer further alleged, that the Central Vermont Railroad Company, acting as receiver, had received money since payments were made on said bonds for the use of cars and engines named in the order respecting the issue of the bonds, which it had not paid to bondholders as required by said order, as it should have done if the bonds were a lien on the equipment and the earnings thereof, but which it had wrongfully applied in payment of itself and other creditors, of the trust; that it had wrongfully paid to holders of the bonds, money not earned by said equipment, but taken from the general funds of the trust, or derived from unauthorized loans by which the alleged floating debt was increased ; that if those payments to bondholders were taken into account, there was nothing, in equity, due to them. The answer denied that any part of the principal of the second equipment bonds was due ; denied all knowledge that the security provided for them by the order under which they were issued was inadequate; but alleged that if it was so, it was because the receiver had hired other equipment, and left the equipment that was pledged as such security to deteriorate; and alleged that such-inadequacy, if any, gave the holders of the bonds no remedy against the trust property nor the roads; and answered otherwise as it had already answered in regard to the bonds of the first equipment loan.</p> <p>As to the Stanstcad-Shefford-and-Chambly bonds, the answer alleged that they were a lien only on the stock, bonds, and income of the road of that name, but that the receiver had paid to the holders of such bonds large sums of money in excess of such income, and incurred a personal indebtedness in so doing ; and that nothing was due, in equity, to the holders of those bonds, and that no relief could be granted to them, except as provided by the order under which the bonds were issued. As to the third-equipment bonds, the answer was the same as to the bonds of the second-equipment loan. The answer admitted the issue of the guaranteed bonds, so called, but alleged that said petitionee never lawfully assented to their issue, and denied that they were a lien on the trust property as alleged in the petition ; and alleged that the pretended indorsement of said petitionee of said bonds was made without authority, and was not binding, but that if binding, the holders of the bonds were not entitled to the relief sought, nor to any relief in this cause, other than such as was provided for by the order under which they were issued. The answer admitted the issue of income and extension bonds, but denied that the petitionee ever assented to their issue, or that they should be made a charge on the trust property ; denied that they were such a charge ; alleged that the court had no power to make them a charge superior to the lien of the petitionee already established by decree as aforesaid ; and alleged that the receivers had paid the interest on said bonds by borrowing money for that purpose without authority. As to that portion of said bonds issued in exchange for first-equipment bonds, the answer was the same as to the first-equipment loan. As to the said orders subsequent to the final decree in the cause, the answer alleged that they were binding and valid only so far as they were duly assented to by the parties whose rights were thereby affected, the court having no right, otherwise, to fix any liability lessening the rights of said petitionee as established by said decree. The answer further alleged that the property pledged for the security of said equipment loans was distinct and capable of easy separation ; that the securities might be easily enforced against it to the full satisfaction of the sums due on said bonds ; and that the bondholders could justly have no further security nor any right to participate in the income of the receivership, nor the proceeds of a sale of the property thereof; that each class of the holders of the Stan-stead-Shefford-and-Chambly, the income-and-extension, and the guaranteed bonds, had a special remedy provided by the order of court under which the bonds of each class were issued, and that in no event could any class have any general relief against the receivership property until its special security was exhausted, if at all. As to the alleged floating debt, the answer left the petitioners to their proof, but denied that, if it existed, there was any considerable amount thereof that constituted a charge in law or in equity on the trust property ; and denied that any part thereof constituted a charge on either of said railroads,; denied that the receivers had ever had either of said railroads, or any real estate belonging to either of those companies, in their possession or management for any purpose other than that of said decrees ; and denied that they ever were trust property, or subject to the imposition of any lien through the agency of said receivers; and alleged that the receivers had no authority to make said floating debt a lien on said railroads, or the property in their hands, in any event, except in subordination to the paramount rights of said petitionee, or any authority to incur any liability constituting a lien on the income of said roads and property, unless by special pledge of certain designated classes of equipment. The answer further alleged, that the earnings of said petitionee’s road had at all times been much more than enough to pay for operating expenses and for repairs and improvements; that all legitimate extensions and enlargements of said roads had been provided for by a corresponding increase of capital; that the floating debt was owing, mainly, to the large sums improvidently expended by the receivers in operations beyond the legitimate business of the trust, entered into by said receivers of their own motion, without the order of the court or the assent of said petitionee; that said debt, as well as the funded debt, was held in great part by the Central Vermont Railroad Company, or persons interested therein, who well knew when they took the same that the debt was incurred without authority, and contrary to the provisions of said decrees, and constituted no valid lien on said railroads or the property thereof. The answer admitted the making of improvements on the Vermont Central and the Vermont & Canada Railroads, and the building of docks and wharfs at Burlington, but alleged that the receivers had had the stock of the petitionee with which to pay for the same ; denied that any improvements had been made on the Vermont Central Railroad other than the usual and necessary repairs, for which the earnings of the road had been much more than sufficient to pay; denied that said receivers had authority to borrow money or to charge said roads or the trust property for the making of said improvements ; denied that' the debts named in the petition, or any of them, were incurred under direction of the court so as to become a lien on said roads and the trust property ; but alleged that no lawful proceedings had been had in the cause, invalidating or in any way changing the rights of said petitionee under said decrees; and that all proceedings in the cause subsequent to said decrees, were subordinate thereto; admitted that the Central Vermont Railroad Company was incorporated for the purpose of enabling those interested in the property to consolidate their interests in a corporation ; but alleged that it was not used for that purpose, but in the interest of those hostile to those who were legally entitled to the earnings of said roads and property, to the prejudice of the interests of those having equitable liens on the earnings of said roads and property, and not in accordance with any rights- conferred by the charter of said company; alleged that said company, having become receiver, had no right to become a creditor of the trust and, as such, to ask for the enforcement of its claims by a forced sale, and against the right of the parties for whose benefit the receivership was created ; admitted that the present management was cumbrous and unwieldy, but denied that the management of said roads under direction of the courts was no longer practicable ; alleged that if the credit of the receiver had been destroyed as alleged, it was by knowledge of the fact that the receiver had wrongfully incurred an erroneous debt that it was wholly unable to pay; denied that a sale of either of said railroads or of the equipment thereof, or of the trust property, was necessary for the purposes in the petition alleged; alleged that there were certain portions of the trust property that could, without injury, be independently sold, and that there were other parts that could be so sold when the trust should be relieved of divers ruinous arrangements that the receivers had entered into ; insisted that no sale should be made except upon terms that would fully protect the paramount rights of the petitionee and its title to its road ; alleged that an accounting had been had before special masters, of the expenditures of certain receivers appointed in the cause, and that said petitionee then appeared and insisted that the receivers should account for misappropriation of trust funds, but that said masters had made no report; alleged that the petitionee expected that as a result of said accounting said receivers would be ordered to pay over large sums of money so misappropriated; that the available funds of the trust would be thereby largely increased, and that said petitionee would have a first lien on any sum so paid over to the extent of its unpaid rents and incidental expenses; alleged that said accounting covered only the time from 1861 to the time when the Central Vermont Railroad Company took possession of said roads as receiver, in July, 1873 ; that no accounting had been had for the time that that company had been receiver, and that the company had filed only partial accounts of its receipts and disbursements, and prayed that an examination of its accounts might be ordered ; alleged that the petitionee believed that upon such an accounting it would appear that said company, as receiver, had misappropriated the trust funds, contracted with itself as receiver, and thereby made large profits, allowed its officers to make gains out of such contracts, and had otherwise wrongfully used its position as receiver to make, and- to allow its officers to make, profits to the injury of the creditors of the trust, and especially to the injury of the petitionee; and that it should pay over on account thereof the sum of $2,000,000. The answer further alleged, that if there was any debt then due that was a lien superior to the petitionee’s, it should be paid out of the earnings of said roads, without resorting to the remedy asked for by the petitioners ; that it would appear from the petition and the papers and proceedings therein referred to, that the petitioners were not entitled to the relief asked for; that it could not be had on petition, but only on a bill, if at all; and that the court had no right to grant that part of the relief prayed for that would require the petitionee to release its road and property to a purchaser thereof. The answer, as to all matters not specifically answered, left the petitioners to their proofs.</p> <p>The answer of the Rutland Railroad Company alleged, that on December 30, 1870', said company entered into a contract with J. Gregory Smith, Joseph Clark, Worthington C. Smith, and Benjamin P. Cheney, then trustees and managers of the Vermont Central and the Vermont & Canada Railroads, in their capacity of trustees and managers, whereby it was agreed that said trustees and managers should have the use and control of the Rutland and the Addison Railroads, and of certain other railroads and property described in said contract and in an assignment of lease of January 30, 1871, on terms therein expressed; that payment of the rent therein reserved was secured to the answering petitionee by certain covenants and stipulations in said contract and assignment of leases, and by two certain orders of January 30, 1871, drawn by said trustees and managers, one on the Connecticut River Railroad Company, directing said company to pay said petitionee the monthly balances that might be due from said company to said trustees and managers on account of business passing over the Vermont Valley Railroad, to an amount not exceeding $30,000 per month on an average, during the term of said contract, and subject to be revoked only when said trustees and managers should be ousted from the possession and management of the railroads and property so leased, under any of the stipulations of said contract, — the other, on the Cheshire Railroad Company, for payment of $10,000 per month during 1871, and $20,000 per month during the term of said contract, and being in its terms otherwise like the other, which orders were duly accepted by the companies on which they were respectively drawn; that on the petition of said trustees and managers, dated January 5,1871, and duly filed in the office of the clerk of the Franklin County Court of Chancery, setting forth said contract, said court, on the same day, finding that said contract was a fair and equitable one, ordered and decreed that the action of said trustees and managers in entering into said contract be ratified and confirmed, directed said trustees and managers to execute the contract according to its terms, and declared the liabilities so incurred by said trustees and managers to be a charge on the trust property and the earnings thereof; that on or about February 12, 1873, said trustees and managers surrendered to said petitionee the steamer Oakes Ames, the Montreal & Plattsburgh Railroad, with its furniture and dock property, the property of the Whitehall & Plattsburgh Railroad, mentioned in the contract of December 30, 1870, and the northern and southern divisions of the last-named railroad, except that part.of said southern division extending from Ticonderoga, New York, to its junction with the Addison Railroad at the State line, but upon the express agreement that such surrender should not affect the rights of said petitionee, nor its security for the payment of its rent and the performance of the conditions of said contract as confirmed by said order of court in respect to the other railroads and property remaining in possession of said trustees and managers, all of which was ratified and approved by said court; that on February 25, 1876, said petitionee and the Central Vermont Railroad Company, successors in the trust of said trustees and managers, entered into a certain other contract, modifying said contract of December 30, 1870, as therein set forth, which was duly ratified by the stockholders of the respective corporations, and approved and confirmed by said court; that at the time both of said contracts were entered into, the trustees and managers for the time being, were, as said petitionee well knew, in possession of, and operating in behalf of said trust, the Lake Champlain & Ogdensburg Railroad, under a contract between that company and said trustees and managers, by the terms of which said trustees and managers were to have the use and control of that road for the term of twenty years from March 1, 1870, on terms and conditions and for rent as therein expressed, to which contracts the Vermont & Canada Railroad Company was a party ; that said Ogdensburg Railroad, in connection with the Vermont & Canada, the Sullivan, the Rutland, the Addison, the Vermont Valley, and the Vermont & Massachusetts Railroads, referred to in the contract of December 30, 1870, formed a connected line of railroad, under the management of said trustees and managers and their successor in said trust, extending from Ogdensburg, New York, to Bellows Falls and South Vernon, Vermont, points where said line connected with the Cheshire Railroad and the Connecticut River Railroad, respectively, thereby greatly increasing their traffic; that at the time the contracts of December 30, 1870, and of February 25, 1876, were entered into, the earnings of the Ogdensburg & Lake Champlain Railroad and of the other roads controlled by said trustees and the Central Vermont Railroad Company under the decrees and orders made in this cause, belonged to the trust whereof said trustees and said company were respectively trustees and managers, or receivers and managers ; that said petitionee, by virtue of said contracts and of the orders confirming them, had a lien on the earnings of the Ogdensburg & Lake Champlain Railroad, and of the other roads affected by or run for the benefit of said trust, which it was the duty of said trustees and managers and said company to protect by compliance with the terms of the contract entered into by said trustees with the Ogdensburg & Lake Champlain Railroad Company, until ousted from possession of the Rutland, the Addison, the Vermont Valley, and the Vermont & Massachusetts Railroads as aforesaid ; that the Central Vermont Railroad Company was still in possession of the roads and property acquired of said petitionee, having never been ousted therefrom; that it was provided by the contract of February 25,1876, that the orders drawn against said earnings, and upon the Cheshire and the Connecticut River Railroad Companies, should “ not be revoked,” but should stand as a continuing security for the payment of the rents therein “ stipulated to be paid,” and should be “ treated as a material part ” of said agreement; that all other provisions, covenants, conditions, &c., of the contract of December 30, 1870, and of the assignment of January 30, 1871, not therein expressly modified, should remain in full force, and apply to the contract of February 25,1876, with the same effect as if therein set forth; and that all the liens given to said petitionee by the contract of December 30, 1870, and said orders confirming the same should remain in full force ; that the earnings on which said petitionee had a lien as aforesaid, included the earnings of the Ogdensburg & Lake Champlain, the Vermont & Canada, the Vermont Central, and the Rutland Railroads, and of the Rutland leased roads and property, still remaining in possession of the trust; and that said petitionee would not have entered into said contracts, or either of them, nor parted with the use and control of said roads and property, if said lien on said earnings had not been made to secure payment of rent and performance of the conditions * of the contract on the part of the trustees and managers, as the trustees and managers well knew.</p> <p>The answer further alleged, that said trustees and managers were not receivers under any order or decree in this cause, but were trustees and managers to carry on the business of the roads, and held themselves to be such in negotiating and executing the contract of December, 30, 1870 ; that said contracts having been entered into by leave of the chancellor and with the consent of all parties interested in the trust, were subject to the incidents and benefits in respect to remedies thereon and relief therefrom that the law accorded to ordinary parties; that said petitionee was unaffected by the nature of the trust and decree referred to in said petition, or the character of its agents managing its business ; and that the court had no power to order a sale for the causes alleged, nor for any cause, in a summary proceeding on petition. The answer admitted that the Central Vermont Railroad Companv was incorporated as alleged in the petition, but alleged that it was for the purpose alleged in a petition filed in said cause by said trustees and managers, purporting to have been sworn to on June 2, 1871, wherein it was alleged, among other things, that the Central Vermont Railroad Company was a corporation, — that the books for subscription to the stock thereof were duly opened, and stock to the amount of $2,013,700 duly subscribed for by responsible persons, — that said corporation had been duly organized and directors elected, — that said corporation was empowered temporarily to operate the railroads then under control of the board of management, — that it was created, among other things, to furnish a medium of relief from the pecuniary embarrassment of the trust, — and that, if admitted to the possession of said roads and property, it proposed at once to assume all contracts and pay all debts and liabilities incurred by said managers for or on account of the trust, and as soon as practicable, to count into the capital stock of said company, or purchase and retire, the first and second mortgage bonds of the Vermont Central Railroad and other securities appertaining to the trust; that on June 21, 1873, on hearing of that petition, the chancellor, relying on the representations therein made, by order of that date, discharged said trustees and managers from the management of said trust, so far as their control of said roads and property was concerned, and appointed in their stead the Central Vermont Railroad Com-1 pany trustee or receiver in said cause, subject to the decrees and orders theretofore made and thereafter to be made ; that said court further ordered that the Central Vermont Railroad Company, as receiver and manager, should assume and pay all debts and liabilities incurred by the outgoing receivers and managers for or on account of the trust, and should also pay them whatever sum should be found due them on settlement of their accounts as fast as the same became due and payable, and should fully protect and indemnify them from all personal liability on account thereof. The answer further alleged, that the Central Vermont Railroad Company succeeded to the management of said roads and property under said order, accepted the appointment on the terms therein expressed, and was immediately let into possession of said roads and property, wherein it had ever since remained ; that said company, having thereby undertaken to pay the debts of the trust, bound itself in its corporate capacity to and with the trustees and managers and with the court, to pay said debts, but that it had hitherto neglected so to do, although said order had remained in full force ; and that the subscription to the capital stock of said company which constituted a fund for the payment of said trust debts remained unpaid ; that the collection thereof should be enforced for that purpose, before any other order was made on the petition, affecting the right or interest of any other party interested in said trust. The answer admitted that said trustees and managers had made various issues of bonds, but as to how, when, and for what purpose, and as to the benefit therefrom to the trust, it left the petitioners to their proofs, particularly insisting upon proof as to whether the managers were interested therein or holders thereof; alleged that there should be an accounting, to determine the amount of the trust debt thereby incurred, before a sale was ordered as prayed in the petition ; and denied that said securities constituted a valid lien on the trust property or any part thereof, or at least a lien having priority over the lien of the petitionee for the payment of its rents under said contracts. The answer further alleged, that since the execution of the contract of February 25, 1876, the Central Vermont Railroad Company had failed to pay the rent due the Ogdénsburg & Lake Champlain Railroad Company, and in consequence thereof had been ousted from possession of said company’s road, and lost control of its traffic and earnings, in which said petitionee had an interest by virtue of the orders drawn on the Cheshire and the Connecticut River Railroad Companies as aforesaid ; that in con- " sequence thereof said petitionee had lost its lien on the earnings of said road, and said earnings had been greatly diminished; that a sale of the roads and property belonging to the trust would still further lessen if not destroy its remaining security; that the Central Vermont Railroad Company was already in default in the payment of rent due to said petitionee to the amount of $11,500, exclusive of interest. The answer admitted that the credit of the management had been greatly impaired, but alleged that it was by reason of the amount of its debts and the high rate of interest payable thereon. The answer also alleged that the property sought to be sold was not sufficiently described in the petition, ■ and that the court could make no order in respect thereto ; that the petition was brought pursuant to a scheme for reorganizing the Central Vermont and the Vermont & Canada Railroads on terms agreed upon by ,the petitioners, and that the court should not aid therein ; that the petitionee was willing to accept a surrender of its road and property, and adjust all matters in relation thereto as provided in said contracts; that the bondholders mentioned in the petition and joiuing therein had no right to represent others similarly situated and not joining therein ; and that on the facts in the petition alleged, the petitioners were not entitled to the relief sought.</p> <p>The answer of Francis A. Brooks, a holder of a large amount of said second-mortgage bonds, alleged that the suit in which the petition was filed was instituted solely to enforce the provisions relating to rent and security therefor contained in the instruments of lease entered into in 1849 and 1850 between the Vermont & Canada and the Vermont Central Railroad Companies in which suit final decree in favor of the former company was entered in July, 1861; that as the only question presented for adjudication by the original bill related to the right of the Vermont & Canada Railroad Company to the road or the earnings of the Vermont Central Railroad Company as security for rent, no other questions were, or lawfully could have been, passed upon by the court, and that no other questions were in fact presented for adjudication in said cause prior to the entry of said final decree; that.by said decree it was provided that the Vermont Central Railroad and all property thereof should be and remain in the possession of Lawrence Brainerd, Joseph Clark, and John Gregory Smith, as receivers, for the purpose of satisfying said decree, and that said receivers should pay over all sums accruing from the earnings of said railroad property, until the sums then due and growing due to the Vermont & Canada Railroad Company under the lease of its road, amounting in all to $4,048.08, should be fully paid, and that said decree made no provision, except for the extinguishment of the claims of said company; that by common consent of the Vermont & Canada and the Vermont Central Railroad Companies and certain holders of Vermont Central first-mortgage bonds, an agreement was entered into for the purpose of satisfying all arrears of rent due to the Vermont & Canada Railroad Company without paying the same in money, by which it was agreed that the receivers then acting under said decree should continue to act in the same capacity for the purpose of collecting and paying over to the Vermont & Canada Railroad Company the sums subsequently to accrue and come due to said company as rent of its road — the Vermont & Canada Railroad Company acceding to said agreement only on condition that its lease should remain in force ; that it was further agreed that the surplus net income should be paid in the first instance to the holders of the first-mortgage bonds, until all sums due and payable to them should be paid, then in like manner to the holders of second-mortgage bonds, and any remaining surplus to the Vermont Central Railroad Company; that said agreement, with other matters not included therein, and not proper to be introduced into any order or decree, were in fact embodied in a decree entered in said suit on January 19, 1864, termed the compromise decree of 1864, which the answer admitted to be valid as between the parties consenting thereto so far as it expressed their agreement, and no further; that in pursuance of said agreement and decree, and soon after the decree was entered, all arrears of rent due and payable to the Vermont & Canada Railroad Company prior to June 1, 1864, were paid by an issue of capital stock of that company to the amount of $600,000, whereby said decree became satisfied and of no further effect; that said compromise agreement and the decree thereon, together with said issue of stock, and the issue of additional stock in liquidation of the sums used by the receivers in constructing the Swanton Branch Railroad to the amount of $250,000, amounted to an accord and satisfaction, not only of the original suit, but of all demands then existing between the parties thereto, to wit, the Vermont &, Canada and the Vermont Central Railroad Companies; that neither by the adjudication in said suit, nor by the agreement of parties, was the Vermont & Canada Railroad Company ever entitled to hold the Vermont Central Railroad or the specific property of that company, chargeable with the payment of rent under said lease, or to hold anything but the income of said road so chargeable ; that so far as the decree of January 19, 1864, purported to make said rent payments a charge on the Vermont Central Railroad or the specific property thereof, it was unauthorized and void; that the allegations in the petition of the Vermont & Canada Railroad Company, setting forth that the court had, in its decree of 1861, declared said rent to be a charge on the Vermont Central Railroad and its property, were false, and calculated to deceive the chancellor to whom the petition was presented, and did in fact deceive him ; that ever since the compromise agreement, the receivers in possession of the Vermont Central Railroad had sustained the relation of receivers to the Vermont & Canada Railroad Company, in the same manner as under the decree of July 18,1861; that as to the surplus net income not required for the payment of the rent of the Vermont & Canada Railroad, said receivers had taken upon themselves the disbursement of the same pursuant to the provisions of the decree of 1864, not by virtue of any duty or office devolved upon them by the court, but by agreement of parties and of their own motion ; that as to the holders of first and second mortage bonds who were not parties to the suit, the receivers stood in the relation of trustees for such surplus net income in their hands at any time ; and that such surplus net income, after coming into possession of said receivers by virtue of said agreement, as to the appropriation thereof, became lawfully set apart and appropriated for the benefit of said holders of first and second mortgage bonds to the amount of all sums due and payable to them on their bonds respectively, and so remained; and that, except as aforesaid, the Vermont Central & the Vermont & Canada Railroads, as such, had never been under the administration of the court in said cause at any time, as alleged in said petition, and were not then, except only so far as said receivers were authorized by the court to operate said railroads for the purpose of collecting the income thereof and disbursing the same, as provided in the decree of January 19, 1864, so that the administration of the general affairs of said railroads never passed from the corporations themselves into the hands of the receivers, as intimated in the petition. The answer denied that said railroads constituted the trust property or trust fund in the hands of said receivers, or any part thereof, or that said receivers as such, then or ever had any property, title, or ownership in or to the Vermont Central and the Vermont & Canada Railroads, or either of them, or the property thereof, for any purpose. The answer further alleged, that while the Supreme Court in its determination of the original cause refused to recognize the existence of any lien or charge on the specific property or estate of the Vermont Central Railroad Company in favor of the orator in said suit, or of any trust attaching to said property or estate in favor of the orator, it determined that the orator was entitled, as a creditor of the defendant company, to receive a certain sum as and for the rent of its railroad, at the rate of-8 per cent, per annum on $1,848,500, and that for such amount, and no more, the orator was entitled to have the net income of the Vermont Central and the Vermont & Canada Railroads set aside and appropriated to, the payment of said rent in the first instance ; that said court appointed receivers to operate said railroads, for the purpose of giving effect to its said decision ; that the receivers so appointed never became liable directly to the Vermont & Canada Railroad Company for the discharge of their duty, and derived no power or authority from the said company, but only from the court; that the Vermont Central Railroad Company, having thus entered into an agreement with the Vermont & Canada Railroad Company, whereby its net income, as fast as it should come into existence, was pledged to the Vermont & Canada Railroad Company for the payment of rent pursuant to the said lease, the Vermont Central Railroad Company afterwards, on October 20,1851, issued and sold or negotiated its bonds, called first-mortgage bonds, secured by a first mortgage of its railroad and all its property to trustees for the holders of said bonds to the amountof $2,000,000; that the Vermont Central Railroad Company thereafter, on May 28, 1852, issued its' bonds, called second-mortgage bonds, and caused them to be duly secured by a second mortgage of its road and all its property to trustees for the holders of said-bonds to the amount of $1,500,000, and negotiated and sold the same to the amount of $1,200,000 or thereabouts ; that said bonds of both classes went into the hands of bona-fide purchasers for value, and were still outstanding in the hands of said purchasers or their assigns; that the trustees in said first and second mortgage deeds, respectively, took thereby good and perfect mortgage title to the Vermont Central Railroad, subject only to the diversion of so much of the joint net income of the roads of both the lessor and lessee as should suffice to pay the rent becoming payable to the lessor for the use of its road ; that before any default occurred in the payment of the rent to the Vermont & Canada Railroad Company, and soon after the issue of said second-mortgage bonds, viz. on June 28,1852, the Vermont Central Railroad Company surrendered its road to the then trustees of said first-mortgage bonds, and at the same time transferred, assigned, and set over to them the lease of the Vermont & Canada Railroad and the benefit of the earnings or income thereof, whereupon said trustees came into possession of the income of the Vermont Central and the Vermont & Canada Railroads, and of the means of applying such income in keeping down said rent, and of preventing any default in the payment thereof; that by reason of such surrender of the Vermont Central Railroad, and transfer of the lease of the Vermont & Canada Railroad, the first-mortgage trustees became the trustees for the first-mortgage bondholders as to the income of said two railroads, subject to the payment therefrom of said rent; that that state of affairs continued until the appointment of receivers in the original cause, May 17, 1855, when said trustees were deprived of the possession of both of said railroads by order of the court, at the suit of the Vermont & Canada Railroad Company, and had ever since been so deprived; that the provisions of the decree of January 19, 1864, in relation to the net earnings in excess of said rent payments, were intended as a recognition and readjustment by the parties, with the sanction of the court, of the right of holders of first and second mortgage bonds to have and enjoy, according to their respective priorities, the income of said railroads in excess of said rent-payments; that at the time the compromise decree of 1864 was entered, the receivers were in fact the same persons who occupied the position of trustees under said first mortage, so that the duty of paying over the surplus income to the holders of said first mortgage bonds to the extent of their claim to the same, was the same duty that would have devolved upon them by reason of their office of trustees under said mortgage had no provision been made in said decree respecting said surplus income; that the only surplus net income remaining subject to the order of the court or of the receivers after the decree of 1864, was such surplus fund derived from said net income as might remain the property of the Vermont Central Railroad Company after satisfying all sums due to the holders of said first and second-mortgage bonds as provided in the decree of 1864, and that so far as said net income of said railroads was applied and appropriated for the benefit of creditors of the Vermont Central Railroad Company by the decree of 1864, it was not competent for the court to disturb or change such appropriation, unless upon due proceedings had for that purpose after lawful notice to the various parties in interest, and that no such modification of said decree had ever taken place, and that the same was still in force and unchanged; that the petitionee, as the holder of bonds as aforesaid, by virtue of the contract contained in the second mortgage deed, of the deed of surrender of the Vermont Central Railroad to said first mortgage trustees, dated June 28, 1852, of the deed of assignment to them of the lease of the Vermont & Canada Railroad of the compromise agreement of 1868, and of the terms thereof as expressed or embodied in the decree of January 19, 1864, had, in common with other like bondholders, a valuable interest and property in the Vermont Central Railroad and in the Vermont & Canada Railroad, and the franchises thereof, and in the income derivable therefrom, and that neither of said railroads could be sold as prayed in the petition, without annulling or greatly impairing said contracts, or some of them, contrary to the provisions of the Constitution of the United States, Article I. s. 10; that the Vermont Central and the Vermont & Canada Railroads were built by their respective corporations under franchises granted by the Legislature for that purpose; that said railroad property and franchises were inalienable, except in pursuance of the provisions of the laws of the State relating to the mortgage or sale of such franchises, or by virtue of the agreement of the owners, made with the sanction of the Legislature; that there was no lawful authority for a judicial sale of any railroad in the State, on the application of parties claiming to hold a lien on its franchise not originating in any mortgage thereof, nor other contract entered into by such railroad corporation ; that if such sale should be ordered, the Central Vermont Railroad Company was not by its charter authorized to become the purchaser at a forced sale, procured to be made by itself for the purpose of acquiring said railroads adversely and without the concurrence of the corporations owning the same.</p> <p>As to so much of the petition as alleged that the Central Vermont Railroad Company was a creditor of the trust to the amount of $500,000, the answer admitted that before the Central Vermont Railroad Company became receiver, it made a large loan to the receivers then in office, taking their notes as receivers therefor, with other notes or bonds of said receivers as collateral security, that said loan had never been paid and was still due, but denied that by reason thereof the Central Vermont Railroad Company was a creditor of either the Vermont Central Railroad Company or the Vermont & Canada Railroad Company, or that the Central Vermont Railroad Company had, or was entitled to have, a lien for said debt on any property belonging to either of said companies, save only such net income thereof as might remain at any time in the hands of said receivers after satisfying the prior claims thereon of the Vermont & Canada Railroad Company and the holders of first and second-mortgage bonds, as provided in the decree of 1864. The answer admitted that the Vermont Central and the Vermont & Canada Railroads had been in the hands of receivers appointed by the court for many years, not for the purpose of executing any trusts in favor of the Vermont & Canada Railroad Company and others, as in the petition alleged, but for the purpose of enabling the Vermont & Canada Railroad Company to obtain payment of said rent. The answer further alleged, that under the decree of July 18, 1861, the Vermont & Canada Railroad Company was the only beneficiary, and that the receivers under said decree had no duty or function as trustees, and no trust whatever to execute that placed said company in any relation of trust to said receivers, or that made the receivers accountable for the discharge of their official duty to any one but the court by which they were appointed; that the Vermont & Canada Railroad Company had never since consented to nor done any act whereby the relation between itself and the receivers as established by the decree of 1861, had been changed, much less been converted into a trust for the management by said receivers of the Vermont & Canada Railroad. The answer admitted that said receivers had from time to time borrowed large sums of money, but denied that said sums had been borrowed for the purpose of the execution of the trust of the receivers as managers of said railroads as alleged, except so far as the loans of $700,000, $300,000, and $1,000,000, called the first, second, qnd third equipment loans, might have been made for the purpose of providing for equipment or supplies for the operation of said railroads ; and alleged that all the other loans made by said receivers, and specified in the petition, were made wholly or mostly for the purpose of funding the floating debts of the receivers, incurred in operations undertaken by them beyond the line and limits of the Vermont Central and the Vermont & Canada Railroads— operations that they as receivers had no lawful right to enter into, either with or without the permission of the court, and which debts were not- chargeable against any property or income of said railroads, or either of them, and could not be lawfully enforced against either of said companies, 'or the property or income thereof. The answer further alleged that soon after the Vermont & Canada Railroad Company entered into the compromise agreement of 1863, the receivers resumed payment of the interest on the Vermont Central Railroad first-mortgage bonds, and were in the receipt of income from said railroads largely in excess of the amount required to pay the rent of the Vermont & Canada Railroad ; that at about the same time said Clark and Smith, two of said receivers, engaged individually in the building of a railroad known as the Montreal & Vermont Junction Railroad, and became the principal owners thereof when built, and thereafter so continued ; that in the construction of said road they used the funds of the receivership to a large amount, and have never replaced the same ; that they became indebted therefor as receivers to the parties from whom the same were obtained, and thereby created an indebtedness against the receivership for their own private benefit; that at about the same time, to wit, in 1864 and 1865, said Clark and Smith employed the funds of the receivership to a very large amount in obtaining control of the Stanstead, Shefford & Chambly Railroad, being thereto induced by the advantage that would thereby accrue to the Montreal ’& Vermont Junction Railroad; that the control of the Stanstead, Shefford & Chambly Railroad was procured by them without any previous authority from the court; and that the expenditure by said receivers from the income of said railroads on account of the acquisition of the Stanstead, Shefford & Chambly Railroad, amounted to upwards of $800,000, and that indebtedness had thus been incurred to the amount of $813,415.81; that said receivers, or their predecessors, bad contracted in their own name and behalf, other debts and liabilities of large amounts, not arising from the operation by them of the Vermont Central and the Vermont & Canada Railroads, nor in the proper or legitimate discharge of the duties of their office as receivers in any way, as follows: By reason of losses prior to July 1, 1873, on the lease of the Ogdensburg & Lake Champlain Railroad, $408,691.95 ; on the lease of the Rutland Railroad, $831,786.18; on the lease of the Missisquoi Railroad, $113,173.29; on the lease of the Stanstead, Shefford & Chambly Railroad, $73,442.03; on the lease of the Northern Transportation Company, $689,843.12; and by reason of losses after that time, on the lease of the Ogdensburg Railroad, $450,000; on the lease of the Rutland Railroad, $550,000 ; on the lease of the Missisquoi Railroad, $125,000; on the lease of the Northern Transportation Company, $250,000; and in the purchase of 9,150 shares of Central Vermont Railroad stock, $496,000 ; resulting in a debt of $4,801,352.85, still outstanding in various forms against said receivers, which debt would not have existed in any form had the receivers confined themselves to the legitimate discharge of the duties and exercise of the powers' conferred on them by the decree of July 13,1861, as modified by the decree of January 19, 1864. The answer admitted, that the receivers, after having entered into the several contracts for operating outside railroads as alleged, applied to the court and obtained its sanction thereto, but alleged that the sanction so obtained operated to entitle the receivers to an allowance or credit in their accounts rendered in court of all sums disbursed or expended by them in the performance of said contracts, but not to create any enlargement of the receivership. The answer denied that the several debts of the receivers in the form of bonds or floating debt, described in the petition, except the $700,000 of bonds issued in 1865, were contracted under the direction of the court as alleged, but averred that, with said exception, all of said receivers’ bonds were issued by leave of the court obtained by the receivers, to enable them to provide for existing indebtedness that they had contracted without any authority, and that the leave of the court was obtained in order to fund the debts that had been already created by said receivers, and not otherwise; denied that any debts were ever contracted by the receivers by the direction of the court, except the seven-hundred-thousand-dollar debt for equipment in 1865, and the debt of $457,500 in 1876 ; and denied that, except as aforesaid, the receivers were ever authorized to issue any notes or bonds whereby their existing indebtedness was to be enlarged or any existing lien or charge was intended to be superseded or disturbed in any way, or was in fact superseded or disturbed; denied that the debt contracted by the.receivers and managers constituted a charge and first lien on the Vermont Central and the Vermont & Canada Railroads, or either of them, as alleged ; averred that the only instance where the bonds of receivers authorized to be issited by the court were declared to constitute a lien on property of any kind, save equipment bonds, occurred in the decree of April 20, 1872, wherein it was provided that the notes issued thereunder should constitute a lien and charge on the trust property under the control of the trustees and managers and the earnings thereof; that that provision in said decree was not to be taken as inconsistent with the preservation of previously existing liens and charges on the same property, but that if the court thereby intended to set aside and displace the liens upon said railroads or railroad income previously established and existing in favor of the Vermont & Canada Railroad Company and the holders of first and second mortgage bonds, respectively, that said provision of the decree was void, and invalid for such purpose. / The answer admitted that large outlays of money had been made by the receivers on the Vermont & Canada Railroad, and on equipment purchased to be used thereon, but alleged that the receivers had been reimbursed by the issue to them of the shares of stock of the Vermont & Canada Railroad Company for all expenditures by them made on said railroad, or nearly so; that of the debts created by them to the amount of $6,357,000, as specified in the petition, not more than $2,000,000 had been expended in the improvement of the Vermont Central Railroad, or the purchase of equipment therefor, and that the balance of the receivership indebtedness had grown out of the operations of the receivers, undertaken outside of and beyond the line of the Vermont Central and the Vermont & Canada Railroads, and out of the losses thereby incurred, and had not arisen in the course of the management of the railroads in pursuance of the final orders or decrees of the court; that consequently neither said companies nor the parties interested therein as mortgage bondholders, should be subjected to loss by reason of the course pursued by the receivers in violation of the duties imposed on them by said decrees, and that if the orders of the court claimed by the receivers to justify them in their proceedings were to be construed as extending' the scope of the receivership beyond the powers conferred by the final decrees of 1861 and 1864, then said orders were made without due notice, and after. all issues involved in the suit had been finally determined, and were invalid and void. The answer denied that the credit of the former receivers and managers was destroyed by reason of malicious and wanton attacks in the public press and elsewhere, but averred that it was by reason of said extravagant and reckless operations and of the enormous losses thereby incurred; alleged that the receivers had voluntarily permitted said debt to be largely increased, when it was in their power to prevent it; that they continued to pay an exorbitant rent to the Rutland Railroad Company, or to become liable and indebted therefor, long after that company offered to receive back the possession of its railroad and to terminate the lease thereof; and that they declined to surrender the Ogdensburg & Lake Champlain Railroad when permitted to do so ; that the only property belonging to the receivers or in their hands, subject to sale, consisted of the equipment and supplies purchased by the receivers, and of the personal property, materials, &c., in their possession ; and denied that the debt of the receivers attached in any way to the Vermont Central and the Vermont & Canada Railroads, or either of them, or that it had ever been adjudged to attach to said railroads, or either of them, or that if it ever did attach to them it would take precedence of the mortgage liens existing on the Vermont Central Railroad long before the creation of the receivers’ debts, so as to justify a sale of said railroad without the consent ■ of the holders of the mortgage bonds ; alleged that the charter of the Central Vermont Railroad Company was obtained by the receivers in possession of said railroads in 1872, three of said receivers being also the trustees under the first mortgage of the Vermont Central Railroad, and that one of their principal purposes in procuring said charter, was to enable the holders of the first and second mortgage bonds to become the proprietors of the capital stock of the Central Vermont Railroad Company by converting their bonds into the same in the manner in said charter prescribed, and thereby to own and control said railroad property, and to supersede the receivers as managers of said railroads ; that said charter was obtained in that way by the said receivers and trustees of the first mortgage bonds, for the benefit of the holders of the first and second mortgage bonds, and that they represented to said bondholders and others at the time, that they were acting in the interest of said bondholders, as well as of the holders of the indebtedness of the receivers and managers ; that having obtained the charter for the purposes aforesaid, and organized thereunder, the receivers and first mortgage trustees themselves became the chief corporators and officers of the Central Vermont Railroad Company, and did not admit the bondholders as such to become stockholders therein, nor open any books of subscription for that purpose, as they were required to do by the charter, though they were thereto requested by holders of said bonds ; that on the other hand, the Central Vermont Railroad Company, thus organized and officered, applied to the court by petition of June 2,1878, asking the court that the receivership might be continued in force, and that the Central Vermont Railroad Company might be appointed receiver and manager in the place of J. Gregory Smith, Joseph Clark, W. C. Smith, Lawrence Barnes, and Benjamin P. Cheney, the former receivers and managers, who were joined as petitioners with the Central Vermont Railroad Company, and agreeing to assume and pay all the receivers’ debts if so appointed, said Smith, Clark, and Smith being also first mortgage trustees, and joining in the petition as such, and said W. C. Smith also joining therein as the then sole surviving trustee under the second mortgage; that the trustees of the first and second mortgages, in thus joining in said petition, should be deemed to have acted in that respect for the benefit of the holders of said first and second mortgage bonds, and not to their prejudice; that the Central Vermont Railroad Company having thus succeeded to the receivership by order of court, should be deemed to hold and exercise the powers thereof with due notice of all prior equities in favor of the holders of said first and second mortgage bonds, and in subordination thereto ; that the lien conferred upon the Central Vermont Railroad Company as receiver and manager by order, of the court by which it was appointed, should be deemed to be, and to have been intended by the court to be, in subordination to liens previously existing in favor of bondholders as aforesaid, and not otherwise ; that under the circumstances aforesaid, it would be contrary to equity that the Central Vermont Railroad Company should be permitted to acquire or set up'any demand against the Vermont’ Central Railroad Company, or the property thereof, in such manner as to enable it to contest the validity of said bonds or the security thereof, or to act in conflict with the rights of the holders of said bonds to enjoy the benefit of their mortgage security; that the receivers, acting under the final decree of July 13, 1861, were the then trustees under the first mortgage of the Vermont Central Railroad; that they were made receivers originally because they were in possession of the Vermont Central Railroad and the earnings thereof prior to the commencement of the suit; that said trustees were instrumental in procuring the charter of the Central Vermont Railroad Company for the benefit of the holders of the first mortgage bonds, in part, as aforesaid; that as such first mortgage trustees, they joined in the application to have the Central Vermont Railroad Company made receiver and manager in said suit; that J. Gregory Smith and W. C. Smith were, at the time the Central Vermont Railroad Company was made receiver, respectively, the president and vice-president of said corporation ; that J. Gregory Smith continued to be such president, and, with his associates, W. C. Smith and Joseph Clark, and Lansing Millis, an agent of said corporation and a shareholder therein, still was the holder or representative of a majority of the capital stock of the Central Vermont Railroad Company, and able to control said company according to his desire; that the Central Vermont Railroad Company, in refusing to open its books for subscription of stock as prescribed in its charter, and in electing to receive cash only in subscription for the shares of its capital stock, and in creating a large floating debt against the receivership by the purchase of 9,150 shares of its own capital stock, and giving the notes of the receivers in payment therefor, thereby increasing said receivers’ debt by about 1500,000, .and in setting forth in the petition the inability of the receivers to pay the floating debt, and the necessity of selling the Central Vermont Railroad, free and clear of all incumbrances, for that purpose, all of which acts had been done, or were being done, through the agency of the same first-mortgage trustees and managers of the receivership, through the corporate organization employed by them for that purpose, was aiding and abetting the first-mortgage trustees in the performance of an act that, if it should result in bringing the Vermont Central Railroad to a forced sale, free and clear of said first mortgage, and against the will of the holders of the first-mortgage bonds, would amount to the perpetration of a gross fraud upon all of said bondholders ; that the original suit of the Vermont and Canada Railroad Company was still pending for the purpose of enforcing the rights of the orator therein under the decree of July 13, 1861, as modified by the lawful provisions of the decree of January 19, 1864; that the accounts of the receivers in said suit, since the year 1866, had never been passed and settled by the court; that an accounting by said receivers down to July 1, 1873, was duly ordered by the court, and masters appointed for taking such account; that the matter was still before the masters, and no report had been made ; that the accounts of said receivers between July 1,1873, and the date of the filing of this petition, had not been taken nor passed by the court; and that until such accounts had been taken and passed, it would not be known what was the just and lawful amount of the receivers’ indebtedness, or of the assets of the receivership; that if the receivership debt attached to the Vermont Central or the Vermont & Canada Railroads, or to either of them, to any extent, it could attach only after the precise amount thereof had been duly ascertained and fixed, and after all the assets in the hands of the receivers, including the Stanstead, Shefford & Chambly Railroad, had been disposed of, and applied in reduction of said debt; that said suit could not be discontinued on the petition of strangers thereto, nor without the consent of the orator therein, and of other persons interested in the enforcement of the decrees of 1861 and 1864 ; that a supplemental bill in the original suit, in the nature of an original bill, was filed on or about September 30, 1876, by W. Tracy Eustis and others, holders of second-mortgage bonds to a large amount, and that the same was still pending, returnable to the then next April Term; that the only ground on which the priority of the lien of the second mortgage on the property and franchise of the Vermont Central Railroad over the trust debt could be fairly questioned, was presented in the supplemental order or decree of the chancellor, entered January 19, 1864, and known as the compromise decree; that one portion of said decree purported to provide that the lien previously existing in favor of the Vermont & Canada Railroad Company on the income or earnings of said railroads, should be extended and enlarged so as to embrace the roads themselves, and the whole property thereof; that said provision was without support in law, except an allegation of the orators contained in the petition filed November 11, 1863, to the effect that such lien on the whole railroad and railroad property had been already adjudged and decreed in favor of the orator by the final decree of July 13, 1861; that said allegation was wholly false ; and that the decree of January 19, 1864, was in that respect erroneous and void, and ought to be amended so as to conform to the decree of 1861. The answer submitted that it was not within the power of the court to order a sale of the franchise and property of the Vermont Central Railroad Company on the ‘petition of the Central Vermont Railroad Company and others as creditors of the receivers and managers or as creditors of the Vermont Central Railroad Company without security on said railroad given by said corporation itself, and not within the authority of the court to confer on the Central Vermont Railroad Company the power of purchasing or acquiring the Vermont Central Railroad franchise and property in case it should be brought to a forced judicial sale on this petition ; and that if the sale should be ordered, and the Central Vermont Railroad Company be permitted to become a purchaser, it should be subject to the rights of the holders of the second-mortgage bonds.</p> <p>The answer of W. Tracy Eustis and Clement A. Walker, holders of second mortgage bonds to a large amount, admitted that the Central Vermont Railroad Company was receiver and manager in possession of the Vermont Central and the Vermont & Canada Railroads by appointment of the court in said cause, and that by virtue of such appointment it was acting or bound to act in pursuance of the final decree of July 13, 1861, and the modification thereof by the decree of January 19,1864, so far as the provisions of the latter decree were made with the knowledge and consent of all the parties to said cause and were not inconsistent with nor materially different from the provisions of said final decree, but objected to the claim of the Central Vermont Railroad Company to make all the proceedings in said cause a part of the petition, except so far as the proceedings subsequent to the final decree had been had in due form of law, and after due notice to all the parties to said suit, and especially after due notice to the trustees of the holders of the second mortgage bonds, and except so far as said proceedings had been had under and in strict conformity with the provisions of said final decree and within the scope of the bill in the original suit. The answer alleged that the petitionees did not know what was meant by the allegation in the petition that the Central Vermont Railroad Company was a creditor of the trust which it represented to a large amount, but that if it meant to allege that it was a creditor of the Vermont Central Railroad Company, or of the trustees under the second mortgage, or of any of the parties defendant in said original suit, they denied the allegation. The answer denied that the Vermont Central and the Vermont & Canada Railroads had been under the administration of the court in said cause for fifteen years, or that the court had had or then had under its administration anything save the income of said roads, and the possession and management of the same so far as necessary to obtain the income thereof; and alleged that the only trust funds, if any, under the administration of the court in said suit originally consisted of the net earnings or income of said roads that remained after deducting the expenses of operating the same, keeping them in repair, and furnishing the necessary equipment and supplies for properly conducting the business thereof. The answer admitted that for the purpose of operating said railroads successfully and advantageously, and of paying debts lawfully incurred by them, the receivers in possession had, with the permission of the court, borrowed at different times or issued their notes to the amount, in all, still outstanding, of $2,904,000, and no more, it being the three equipment loans of $2,000,000 in all, and the guaranteed loan of $904,000, and alleged that the receivers’ trust-fund was thereby increased to a large amount by the receivers’ own act. As to all other bonds issued by said receivers, or loans made by them, and referred to in the petition, the answer denied that they were issued within the line of duty or office devolved on said receivers by the court, and alleged that they were issued by said receivers, at different times, for their own private ends, and mainly to provide for losses made or debts contracted by them in operations undertaken by them of their own motion, beyond the line of said railroads, to the great disadvantage and injury thereof, and that as to debts of that description it was immaterial, so far as the petitionees were' concerned, whether the sanction of the court was obtained thereto or not; that the Central Vermont Railroad Company, as receiver and manager, had recently incurred a debt of $457,500 and upwards in the purchase at par of shares of its own capital stock, and that if said debt attached by law to the trust-fund placed in its hands for administration for the benefit of the Vermont & Canada Railroad Company, and holders of first; and second-mortgage bonds, then said purchase was a misuse by it of the trust-fund in its charge, and an abuse of its power over the same ; and that so much, at least, of said alleged indebtedness of the receivership should be disallowed, or paid, if at all, by said receiver out of its own private funds ; denied that said indebtedness of the receivers and managers, or any of it, constituted a charge and first lien on the Vermont Central and the Vermont & Canada Railroads, or either of them, and alleged that said second-mortgage bonds constituted a charge and lien on the Vermont Central Railroad, its franchise, and the specific property thereof described in said mortgage, prior in right of security to the indebtedness created by said receivers and managers, or any part thereof; that the receivership indebtedness could not be adjudged to be a lien on said road and property in said mortgage described, and as such entitled to priority over said mortgage creditors, and that the trustees under said mortgage could not be decreed to release said mortgage according to the prayer of the petition, without impairing the obligation of said mortgage contract, contrary to the provisions of the Constitution of the United States ; denied that the orders or decrees of the court, made at the request of said receivers at any time, created or purported to create any lien or incumbrance on the property or estate of the Vermont Central Railroad Company, or that they purported to confer or establish any right of priority over liens previously existing on the property or earnings of said company, or to overthrow or set aside previously existing liens on any property whatsoever, or were intended to have that effect, or that they could have any such effect if they were so intended, except by the actual consent of all parties holding such prior liens or securities. The answer also alleged the filing of the supplemental bill mentioned in the answer of defendant Brooks, and that it should be heard and determined before any further proceedings were had on said petition.</p> <p>The answer of Robert Codman and Henry A. Johnson, holders of guaranteed bonds, objected to the sale prayed for in the petition, unless it was guarded by proper conditions for the protection of the interests of the creditors of the trust, for that said roads and property were of such large value and of such peculiar character that it would be impossible to find competing purchasers thereof except at rates altogether less than the value thereof, and for that such a disposition of the property as prayed for would be a grievous hardship to the creditors of the trust who had advanced money to the managers under the sanction of the decrees of the court, and with the fair and reasonable expectation that their claims would be carefully guarded and protected by the court in requiring the trust property to be disposed of to the best advantage for their interests. The answer also alleged, that although the value of said railroads and trust property might be •equal to the amount of the trust debts, yet, that in a forced sale thereof, without proper conditions and safeguards, the same would necessarily be sacrificed at an inadequate price ; that in case of any sale of said roads or property, the rights and interests of the creditors of the trust should be fully protected, and that prior thereto the claims of all the creditors of the trust should be ascertained and liquidated as nearly as possible, and that thereupon said managers, or some other persons appointed therefor, should be required to offer said roads and property, under a suitable decree, at public auction, at an upset price representing the estimated aggregate of the trust debt, and in case there should be no bidder above such upset price, that then said roads and property should be sold, suitably transferred, and by proper instruments conveyed to a committee or trustees to be appointed by the court on nomination of the trust creditors, parties to this proceeding, for the benefit of all the creditors of the trust; that meantime, and until further disposition of the property should be agreed upon by the creditors of the trust, said roads and property should be held and managed by such committee for the benefit of the creditors of the trust, as managers under the direction of the court, or else that such sale should be conducted in some other manner, as to which the petitionees prayed for leave at some future time to make suggestions, so as fairly to protect the rights of the creditors of the trust. The answer further objected to so much of the prayer of the petition as required that the Vermont & Canada Railroad Company should release all its interests in case of a sale of the trust property, for the reason that the petitionees were creditors of said company by reason of that company’s indorsement of the bonds of which the petitionees were holders. The answer also objected to the prayer of the petition that the Central Vermont Railroad Company might be permitted to become a bidder or purchaser of the whole or a part of said roads and property, not only on the general grounds of equity, but also because the petitionees were informed and believed and were ready to prove that the Central Vermont Railroad Company, through its directors, had suggested and was seeking to accomplish a scheme to take said roads and property from the control of the court, by which the Central Vermont Railroad Company should retain, as a corporation, full control of said roads, compelling the creditors of the trust to exchange their securities for mortgage bonds on said roads of an issue greatly larger than the whole trust debt, and compelling them further, not only to a much lower rate of interest, but to an entire postponement of any interest on their claims for about three years, in order that the earnings of the property might be applied to the reduction and payment of said floating debt; and that said floating debt was principally held by the Central Vermont Railroad Company and its directors, or by other parties with the indorsement or guaranty of said company, or individually of its directors ; and that in order to carry out said scheme, it was the purpose of said company to obtain leave of the court to purchase the trust property at a forced sale and at a nominal price, for the purpose aforesaid.</p> <p>John M. Pinkerton and William G-. Shaw, other holders of guaranteed bonds, adopted the answer of said Codman and Johnson.</p> <p>Said Pinkerton and Reuben E. Demmon, holders of Stanstead, Shefford & Chambly bonds named in the petition, answering for themselves and all other holders of said class of bonds who desired to avail of this action, admitted that said bonds were issued as alleged in the petition, and secured by a pledge of certain stock and first mortgage bonds of the Stanstead, Shefford & Chambly Railroad, with a pledge also of the net earnings of said road, to pay, first, the accruing interest on said bonds, and after that, to constitute a sinking fund, with which to retire the principal when due, the receivers holding said collateral in trust for the owners of said bonds. The answer alleged that said issue of bonds was made originally to the holders of the first and second mortgage bonds of the Vermont Central as follows: To the holders of the first mortgage bonds, in payment of the interest coupons that fell due June 1 and December 1, 1867, on their bonds, and to the holders of the second mortgage bonds in payment of the first two maturing coupons on their bonds, upon condition that the holders of said second mortgage bonds should, in addition thereto, take Stanstead, Shefford & Chambly bonds to an amount equal to ten per cent, of the face value of the second mortgage bonds, and pay par therefor, in cash — the money thus received and derived from the cash payment of the second mortgage bondholders being appropriated by the receivers towards paying the stock and sterling bonds of the Stanstead, Shefford & Chambly Railroad; that the petitionees were informed and believed that there were six hundred bonds of one hundred pounds sterling each of the Stanstead, Shefford '& Chambly Railroad held by English owners, which were not purchased by said receivers, but that a written contract was entered into by said receivers with them, whereby said bonds were lodged by the owners thereof in some bank in Montreal, and by which said owners agreed to take five per cent, per annum on an amount equal to fifty per cent, of the par value of said bonds, with the right on the part of the receivers to buy said bonds at any time thereafter at the rate of fifty per cent, on their par value ; and that said contract had ever been observed by the receivers according to the terms thereof, and that they were still bound thereby; that the receivers had always been in possession of said railroad since the purchase of said stock and sterling bonds, and had taken the net earnings thereof, and so had become chargeable with the same for the uses of the holders of the Stanstead, Shefford & Chambly bonds, as provided and set forth therein, and in the decree creating them; that the interest on said bonds had been regularly paid by the receivers until July 1, 1876, when the interest then due was defaulted, and had so continued; that the petitionees were ignorant whether said stock and sterling bonds were adequate security for said bonds still outstanding, and that they could neither admit nor deny the same; that the petitionees objected to the sale of the Vermont Central and the Yermont & Canada Railroads, unless such sale should be made subject to the payment of the principal and interest of the Stanstead, Shefford & Chambly bonds, or unless, in some other manner, a satisfactory arrangement could be made whereby the security of said bonds should not be impaired. The answer prayed the court to order the receivers to pay over to the holders of the Stanstead, Shefford & Chambly bonds the net earnings of the Stanstead, Shefford & Chambly Railroad pledged for that purpose, which had accumulated in their hands since the payment of the last coupon January 1, 1876, not exceeding the amount of interest that might have grown due, and the balance of said earnings, if any, to hold as a sinking fund, as provided in said bonds.</p> <p>The answer of F. A. Brooks and E. D. Mandell, a majority of the committee of the holders of the first and second mortgage bonds, answering in their capacity as such committee, alleged that by virtue of the decree of January 19, 1864, said committee were the auditors of the accounts of receivers and managers in possession’ of the railroads of the priority respectively of the orator and defendant in the original suit, with power to approve the same when presented to the court by said receivers for allowance, so as to entitle said accounts to be allowed and passed by the court without further proceedings, and with no other power in the premises as such committee, so far as they were advised and believed ; that they were elected to serve on such committee on October 11, 1876 ; that they had not approved any accounts of the receivers as such committee since such election; and that it was their wish as such committee, that said accounts should not thereafter be passed and allowed by the court until they had been referred to masters for examination, according to the usual course of proceedings in chancery.</p> <p>The answer of Worthington 0. Smith, Estes Howe, and Joseph Converse, trustees of holders of second mortgage bonds, admitted the truth of the allegations of the petition, and favored the sale prayed for.</p> <p>Judith W. Andrews, named as one of the defendants, moved to dismiss the petition, because the relief thereby sought could not be thus obtained, but only by original bill, if at all.</p> <p>The answers were traversed and testimony taken. After argument, the chancellor held the case for advisement until June 11, 1877, when a decree was entered, dismissing the petition pro forma and without prejudice, that the questions involved might be heard by the Supreme Court on appeal. An appeal was accordingly taken by the petitioners, and came on for hearing at a special term of the Supreme Court convened for that purpose on July 24, 1877.</p>

General Assumpsit. Trial by the court, December Term, 1874, Pierpoint, C. J., presiding.

<p>Assumpsit under s. 6, c. 20, Gen. Sts., for the recovery of charges occasioned by the sickness, maintenance, cure, and removal of one Altha A. Ring, an alleged pauper, ordered to be removed from Starksboro to Huntington. Pleas, the general issue and Statute of Limitations. Trial by jury, December Term, 1877, Pierpoint, 0. J., presiding.</p> <p>Plaintiff offered in evidence a certified copy of the record of the proceedings in the matter of said order of removal, to which defendant objected, because it was not a true copy of the record as originally made by the justices; but the court admitted the copy, subject to the effect of such evidence as defendant should introduce in that behalf. By said copy it appeared that the original order of removal, and the copy thereof left with defendant’s overseer of the poor, showed an adjudication by the justices making the order that the pauper was chargeable to the town of Starksboro.</p> <p>Defendant introduced evidence tending to show that the copy of said order left with its overseer of the poor contained no statement of an adjudication that the pauper was, or was likely to become, chargeable to Starksboro, and that the original order did not then contain such a statement, but that the record was after-wards altered by inserting an adjudication that the pauper was chargeable to Starksboro.</p> <p>The court, pro forma, instructed the jury to disregard all of defendant’s testimony on this point, and charged them that it was immaterial, and, if true, constituted no defence ; to which the defendant excepted.</p> <p>The fact that the copy of the order left with defendant’s overseer of the poor showed no adjudication that the pauper was, or was likely .to become, chargeable to Starksboro, is fatal. There is no presumption in favor of the jurisdiction of inferior tribunals of this kind, with special and limited jurisdiction. The record or case must show affirmatively the existence of all those facts and circumstances that give jurisdiction ; and if they do not so appear, the judgment is void. Paine v. Ely, 1 D. Chip. 37 ; Bates v. Hazletine, 1 Vt. 81.; Hubbell v. BimieJc, 1 Vt. 253 ; Walbridge v. Hall, 3 Vt. 114; Bean v. Lowry, 4 Vt. 481; Barretts. Crane, 16 Vt. 246 ; Barling v. Bowen, 10 Vt. 148; Hewes v. Andover, 16 Vt. 510 ; New Barbadoes v. Paterson, 3 Dutcher, 544; Princeton v. South Brunswick, 3 Zab. 169; Wilmington v. Jamaica, 42 Vt. 694.</p> <p>The, statute on which the action is brought, renders the town to which the pauper is ordered to be removed, liable for his support when too sick to be removed, only when he has been so ordered to be removed; that is, ordered to be removed as provided in the previous section, which enacts that the justices may order him to be removed if they find that he -has, or is likely to become, chargeable to such town.</p> <p>The omission of defendant to appeal from the order has in no respect prejudiced its defence. The copy of the order served on defendant’s overseer, showed on its face that the justices had no jurisdiction ; that they had ordered a person to remove who was in no sense a pauper, nor within their control. It appeared upon its face to be void. It was, in fact, no order, and imposed no duty on the defendant, either to accept the pauper or to appeal. Dorset v. Rutland, 16 Vt. 419 ; Poultney v. Sandgate, 35 Vt. 146 ; Whitingham v. Wardsboro, 47 Vt. 496 ; Stowe v. Brookfield, 26 Vt. 525, per Redfield, C. J.</p> <p>If the order was thus defective, and for that reason imposed no obligation nor duty on the defendant, either to obey it or to appeal, then defendant could be under no liability to refund to the plaintiff the expenses of supporting the alleged pauper up to the time she was removed.</p> <p>The copies were sufficient and the legitimate evidence. Poultney v. Sandgate, 35 Vt. 146.</p> <p>The adjudication, unappealed from, was conclusive. The proceedings were strictly judicial, and by a properly constituted tribunal.</p>

General Assumpsit. Plea, general issue, with notice of payment. Trial by the court, March Term, 1877, Ellis, Assistant J., presiding.

<p>Trover for a pair of stags. Plea, general issue, and trial by jury, September Term, 1877, Ross, J., presiding.</p> <p>The plaintiff, to prove that he was guardian of James Smith, produced his original letters of guardianship, and testified that he received it from the Probate Court for the District of Rutland. The defendants objected thereto, for that the fact of the guardianship could be proved only by certified copies of the probate record. But the court xmled that the letter was prima facie evidence, and admitted it; to which the defendants excepted.</p> <p>It appeared that Smith was under guardianship as a spendthrift, but that the plaintiff posted no public notices of his appointment, nor lodged nor procured to lie recorded a copy of the application for appointment of a guardian, in the town clerk’s office, agreeably to the requirements of the statute.</p> <p>It further appeared that in June, 1876, the plaintiff, in his capacity of guardian, bought the cattle in question, with funds belonging to his ward, and delivered them to him, to use at work for various persons, to enable him thereby in part to support himself, telling him that he could have the use of the cattle for that purpose, and could collect the pay for their use, and take care of them, but that he was to have no other or further control of them, and that the guardian could take them away when he saw fit; that early in July, Smith took the cattle to Rutland and sold them for a fair price in money which he received of the defendants, they having no knowledge of him or that he was under guardianship, and there being nothing in his appearance to indicate to a stranger that he was incapacitated from making a binding contract ; that Smith left the vicinity for a while, and squandered all the money ; that on July 27,1876, the plaintiff demanded the cattle of the defendants, who told him he could take them if he chose, but that if he did they should sue him for them ; and that the defendants afterwards sold the cattle and received the money for them.</p> <p>None of these facts were controverted, and neither party desired to submit them to the jury. But they were at variance in regard to the value of the cattle, and that question was submitted to the jury in a manner not excepted to. The jury found the cattle worth $80 when demanded.</p> <p>The defendants claimed that the plaintiff could not recover,— both because of his failure to give the statutory notice of his appointment, and because the surrender of the possession of the cattle to Smith, under the circumstances stated, gave him an absolute or implied power to sell them and take the pay therefor. The court rendered judgment, pro forma, for the plaintiff to recover $80, with interest from July 27, 1876, and his costs; to which defendants excepted.</p> <p>A spendthrift is still mi juris. His incapacity to contract for himself is statutory only. The steps provided by law must be strictly followed, in order to entitle the guardian to interfere. Gen. Sts. c. 72, ss. 16, 50; Pot. Dwar. Stat. 146; Quiver v. Hayden, 1 Vt. 859.</p> <p>But the guardian put his ward in possession of the stags in such a way as to make the ward his agent. He voluntarily surrendered his statutory right to the care and control of the property, and took his own risk as to the disposition the ward might make óf the cattle.</p> <p>Even a lunatic may make a binding contract. Molton v. Qamroux, 2 Exch. 487. The same rule applies to contracts of infants. Farr v. Sumner, 12 Vt. 28 ; Taft v. Pike, 14 Vt. 405 ; Weed v. Bebee, 21 Vt. 495.</p> <p>The Probate Court acquired no jurisdiction for the purpose of appointing a guardian unless due notice of the application was given. Of that no proof was made, and there was therefore no sufficient legal evidence that the plaintiff was the guardian of Smith. Qorwin v. Merritt, 3 Barb. 341.</p> <p>The letter of guardianship was properly admitted in evidence. Newman v. Jenkins, 10 Pick. 515 ; White v. Palmer, 4 Mass. 147 ; Seymour v. Beach, 4 Vt. 493; Wadsworth v. Sherman, 14 Barb. 169.</p> <p>The surrender of possession of the cattle to Smith, gave Smith no power to make a valid sale of them. Leonard v. Leonard, 14 Pick. 280.</p> <p>The failure to lodge a copy of the application for guardianship in the office of the town clerk in accordance with the statute is not material. The sole object of that provision is to render null and void all transfers made while the proceeding is pending and before adjudication. It is a notice pendente lite for the purpose of keeping the ward’s property in the same condition while the application is pending.</p> <p>The failure to give notice of appointment agreeably to the statute is no defence. The provision of the statute as to posting notices is directory. Wood v. Chapin, 18 N. Y. 509. Besides, the records of the probate court are open and every person is bound to take notice thereof.</p>

<p>This was an action to recover $17.42 for groceries. The case was referred, and the referee reported as follows:</p> <p>The writ was served November 11, 1875, On February 2, 1876, Reuben R. Thrall, claiming to have been employed as attorney by plaintiffs in 1871, to collect an account of $8.02, brought an action against defendant and said trustee in favor of plaintiffs, and obtained a judgment for that amount, which remains unsatisfied. That sum of $8.02 was included in and was a part of the $17.42 sought to be recovered in this action. Plaintiffs repudiate the employment of Thrall as their attorney, and insist that they had nothing t.o do with him in regard to the matter ; but I find that he had been employed by them in some other collection matters, and “the weight of evidence apparently tends to prove a probability of his employment as attorney to collect this particular billI therefore allow the account of $17.42, with interest thereon from January 1, 1873, amounting on March 13, 1877, to $21.78, subject to the deduction of said judgment for- $8.02, if the court decide that that is a bar to a recovery to that extent, which, in that event, would leave a balance of $10.55 due the jflaintiffs on March 13, 1877. But if the court find that that judgment is a bar to a recovery in this suit, then I find for defendant to recover his costs.</p> <p>The commissioner found that the defendant, a soldier in the late war and a pensioner of the United States, received in June, 1875, a draft or check from the United States pension agent for $500 on account of said pension, which he then gave to his wife, who, by the defendant’s advice but not in his presence, passed the same to Pierpoint, the trustee, and took the trustee’s note for that amount, payable to her order, the trustee then understanding that it was for defendant’s pension, and that defendant and his wife wanted it used for the benefit of defendant’s family, as it was needed, or to pay for a homestead if they should think best to purchase one ; and that if the court were of opinion upon those facts that said funds were attachable and liable to be held by trustee process, then that the trustee had in his hands and possession goods, &c., belonging to defendant, to an amount exceeding the damages claimed by plaintiffs ; but if otherwise, then that ho had not any goods, &c., belonging to defendant in his hands.</p> <p>At the September Term, 1877, the court, Ellis, Assistant J., presiding, rendered judgment, pro forma, on the report of the referee for the larger sum, and judgment on the report of the commissioner that the trustee was chargeable. Exceptions by-defendant and trustee.</p> <p>The former judgment having been upon a part of this claim, is a bar to this action. Whitneys. Clarendon, 18 Vt. 252; Guernseys. Carver, 8 Wend. 492; Miller s. Covert, 1 Wend. 488; Warren s. Cummings, 6 Cush. 103 ; Trask s. Hartford §■ Hew Haven R. R. Co. 2 Allen, 331; Farringtons. Payne, 15 Johns. 432 ; Bennett s. Hood, 1 Allen, 47 ; Bemis s. Jennings, 46 Vt. 45 ; Squires s. Whipple, 2 Vt. 111.</p> <p>The case is distinguishable from such as Post s. Smilie, 48 Vt. 185. The former judgment is conclusive and- cannot be impeached except by some proceeding bearing directly upon ü. Porter s. Gile, 47 Vt. 620.</p> <p>The referee has found' that Thrall had authority to commence and carry on the suit of February, 1876, but if he had not, the plaintiffs are barred by what he has done for them, and cannot take advantage of his want of authority in this manner. . They must look to him for their damage. Spaulding s. Swift, 18 Vt. 214; Abbott $ Co. s. Button, 44 Vt. 546.</p> <p>The check or draft was exempt under the statute of the United States, and the trustee is not holden. U. S. Rev. Sts. s. 4747. This case is distinguished from Yates s. Hurst, 41 Vt. 556. Here the trustee owed the pension money, not for it. Besides, the statute in question goes further than our statute regarding bounties, upon which Yates s. Hurst was decided.</p> <p>It appears that defendant had made a gift of the check and pension money to his wife. He had a right to make such a gift, and that constituted the money and check her sole and separate property. Child s. Pearl, 43 Vt. 224; Cardell s. Ryder, 35 Vt. 47.</p> <p>The judgment is not a bar. The suit in which it was rendered was wholly without the plaintiffs’ knowledge, and they never derived any benefit from it. The referee vaguely says : “ The weight of evidence apparently tends to prove a probability.” That does not show that the plaintiffs had any connection with the matter.</p> <p>When pension funds reach the hands of the pensioner and he loans the money or uses it, the statute no longer protects it. The property he buys with pension money becomes attachable for his debts, and when loaned by him it is subject to trustee process under the State law. U. S. Rev. Sts. s. 4747 ; Adams v. Newell, 8 Vt. 190. The defendant’s wife acted as his agent. He left the check with her to loan to the trustee, and shé had no interest in it as against the defendant’s creditors.</p>

Leach, ordering the defendant, executor of the last will of Ebenezer Leach, to add certain property to the inventory of the testator’s estate.

<p>Assumpsit on a promissory note. Trial by the court, September Term, 1877, Dunton, J., presiding.</p> <p>The case was this. The note in suit, which was for $200, was made on June 16, 1875, by defendants Benjamin Lewis & Son, payable to the order of defendant EL W. Lewis, who was accustomed to indorse for them, at the National Bank of Poultney, and was indorsed by H. W. Lewis. At the time it fell due it was and still is owned by Lucius Copeland, having been passed to him for value in the regular course of business, he having indorsed it to said bank after it matured, for collection for his benefit. On the day the note fell due, Clark, who then was, and for more than five years had been, cashier of said bank, and the notary who protested notes there payable, received a letter from EL W. Lewis, in which he said, referring to the note in suit: “ I will waive protest on the note of B. Lewis & Son, of $200, dated June 13, indorsed by me.”</p> <p>The note was never owned by said bank, nor in said bank, except as aforesaid; and it did not appear that payment thereof was demanded at or of said bank on the day it fell due, nor that said bank or its officers had any knowledge that there was such a note in existence until after the day it fell due, otherwise than such as' might be presumed to have been gained by the receipt of said letter ; nor did it appear whether or not the makers of the note had any funds in the bank on the day the note became due; but it did appear that they were in failing circumstances, and before that day had become aware that they should not be able to pay their debts; nor did it appear whether or not Copeland knew of the letter to Clark until after the maturity of the note.</p> <p>The plaintiff was permitted to discontinue without costs as against Benjamin Lewis & Son. The court rendered judgment, pro forma, for the defendant H. W. Lewis; to which the plaintiff excepted.</p> <p>Notice of non-payment may be waived by an indorser in various ways; as, by a promise to pay in a case where notice of non-payment has been given earlier than the law requires; or, by a promise to pay where notice has not been given at all; or, by a promise to pay at a future time ; or, by any acknowledgment of a liability to pay. Seeley v. Bisbee, 2 Vt. 105; Farmers f Mechanics’ Bank v. Gatlin, 13 Vt. 39. On the day the note became due, defendant wrote plaintiff that he would waive protest and notice, which was equivalent to a promise to pay, and to an expression of willingness to remain liable ; and it is immaterial that Copeland’s conduct was uninfluenced thereby. The promise or acknowledgment took effect and bound the defendant as a similar promise would have done if it had been made to a stranger in respect to a debt affected by the Statute of Limitations, under the old law. Such promise is an answer to the statute, and an answer to the defence in this case. Boss v. Hurd, 5 Reporter, 51; Minklev v. Minkler, 16 Vt. 193 ; Byles Bills, 367, 368.</p> <p>This defendant’s contract of indorsement was to pay the note, provided payment, was properly demanded and notice of nonpayment given. Could a material part of that contract be waived by a declaration to Clark or the bank, strangers to the note, who never had any interest therein nor possession thereof ? 1 Parsons Bills, 610.</p> <p>The letter relied on as a waiver does not describe the note in suit; and it cannot be explained by parol, any more than any other written contract. If anything, it is a contract to waive a material part of the contract of indorsement. Pitts v. Brown, 49 Vt. 86. The owner of the note was not misled by the defendant’s letter, as he never knew of it till after the note had matured.</p>

The declaration was in assumpsit in the common counts. Pleas, general issue and Statute of Limitations. Trial by the court, September Term, 1877, Dunton, J., presiding. The plaintiff, a minor, prosecuting by his father and next friend, Martin Parks, sought to recover under a parol contract claimed to have been made between the decedent, who died January 24, 1876, and plaintiff’s father, and offered to prove the contract by his father and mother.

Debt on a life insurance policy. Plea, the general issue, and trial by jury, March Term, 1877, Wheeler, J., presiding. Plaintiff introduced the policy declared upon, issued June 1, 1874, by which the life of Daniel N. Powers was assured for the benefit of Amantha M. and William D. Powers, the plaintiffs.

This was an action upon s. 34, c. 84, Gen. Sts., for the collection of a tax against the defendant, assessed on the grand list of the town of Poultney for the year 1875. Plea, the general issue, and trial by the court, March Term, 1877, Dunton, J., presiding.

This was a grand-juror’s complaint under No. 38, Acts of 1876, for keeping and maintaining a place or room used as a place of public resort where spirituous or intoxicating drink was kept for unlawful sale, etc. Plea in bar, that on January 8, 1877, respondent was prosecuted before the Municipal Court of Rutland for “ owning, keeping, and possessing intoxicating liquor with intent to sell,” etc., contrary to the provisions of c. 94 of the Gen. Sts.; that she was convicted…

Replevin for a horse. The case was referred, and the referee reported substantially as follows: The plaintiff, a laborer, working by the month at different places, but having his home with his father, who owned a small place of three or four acres in Rutland, and was in part dependent on the plaintiff for support, bought the horse in question in the fall of 1869, when it was a sucking colt, and kept it until it was attached by John Cain, on May 3, 1871, on a writ in his…

<p>[In Chancery.]</p>

Assumpsit on a promissory note. A commissioner was appointed to take the disclosure of the trustee, who reported in substance as follows: In August or September, 1875, the defendant had negotiations ¡vith the trustee about selling it 100 cords of wood to be delivered the ensuing winter, and gave the trustee to understand that the pay therefor was going to the plaintiff, who held the note in suit, and also a larger claim secured by mortgage, whereupon the trustee went to see…

<p>Trespass for nine two-year old cattle. Plea, the general issue, and notice of justification under process against one William Moncrief. Trial by jury, June Term, 1877, Dunton, J., presiding.</p> <p>The plaintiff introduced in evidence a bill of sale from said Moncrief to himself, dated June 21, 1876, of a large amount of personal property, including all of his interest in the cattle in question, which had been turned out by Moncrief to one L. D. Hopkins, to indemnify him for indorsing a note for $150 for Moncrief at the First National Bank of Granville, N. Y. The plaintiff’s evidence tended to show, that said bill of sale was made in pursuance of a previous arrangement whereby Moncrief agreed to transfer all of his personal property to the plaintiff, if the plaintiff would pay certain debts that Moncrief owed to certain persons in Rupert, Vt., and to said bank, and to the First National Bank of Salem, N. Y.; and that the plaintiff began the payment of said debts in pursuance of said arrangement, before the execution of the bill of sale. The plaintiff testified that he understood that the title to the property passed to him on the date of the bill of sale ; and that certain of said debts were evidenced by Moncrief’s promissory notes, purporting to be indorsed by various persons. It was conceded that those indorsements were forged by Moncrief. The plaintiff was asked on cross-examination if any part of the consideration that led him to take up the indorsed notes was, that he might save Moncrief from prosecution for forgery. He replied that he did not do it to prevent prosecution, and did not suppose he was doing anything to save Moncrief therefrom; that he did not take up all the forged paper, but got what came in his way; paid $500 that was not forged ; and that one of the forged notes he never saw. He further said, in substance, that he thought that, perhaps, if all who held forged paper got their pay, they would not be so likely to take Moncrief up ; that he didn’t know but somebody might take him up if he didn’t get his pay ; that Moncrief’s wife was his daughter ; that for her sake he wished to avoid the disgrace that a prosecution for forgery might bring; but that he didn’t care for Moncrief; and that that was one of the considerations that led him to enter into the arrangement with Moncrief, but a minor and secondary one, as he did not think Moncrief would be arrested.</p> <p>The plaintiff introduced said Hopkins as a witness, whose testimony tended to show that in the spring of 1876, and before the attachments were made by the defendant, Moncrief executed a note of $150 to the First National Bank of Granville, and forged the witness’s name thereon as indorser ; that afterwards, on June 16, five days before the first of said attachments was made, Moncrief came to him and confessed the forgery; that while Moncrief was there, the president of said bank appeared, and asked the witness if he indorsed the note, and, upon his saying that he did not, asked him if he would ; that after some conversation the witness told Moncrief that he would indorse the note if he would turn out the cattle in question as security therefor, whereupon it was agreed that Moncrief should deliver the cattle on the next morning, and the witness indorsed the note, and on the next morning Moncrief delivered the cattle as agreed.</p> <p>On cross-examination the defendant’s counsel offered to show that the consideration that led to the indorsement was, the prevention of a prosecution of Moncrief for forgery of the indorsement on the note then taken up, and asked the witness if his object and motive in indorsing the note was. not to save Moncrief from prosecution. The plaintiff objected to the answer to that and similiar questions, and the answers were excluded, to which the defendant excepted. It appeared that the cattle in question went into possession of Hopkins, pursuant to the agreement between him and Moncrief on June 17, and there remained until August 19, when they were taken by defendant and sold on execution, as hereafter stated ; and that Hopkins had no lien other than the one by virtue of said arrangement.</p> <p>Other questions were made relative to a release by Hopkins of his lien, and as to the time when Hopkins had notice of the sale to the plaintiff; but as they are not material to the points decided, they are not stated.</p> <p>It appeared that judgments were obtained in the suits -in which the attachments were made, executions duly issued and levied, and the property sold thereon in due form; that Moncrief had never been prosecuted for the forgery, and, at the time of trial, was residing in Illinois; and that the plaintiff had preserved all of said notes, shown them to all who desired to see them, and was ready to deliver them to the state’s attorney or any one who might wish to prosecute Moncrief. It also appeared that about ten days after the attachments were made, the plaintiff made an arrangement with Hopkins whereby Hopkins surrendered his lien to the plaintiff, and agreed to keep the cattle for him, and that the plaintiff afterwards paid him for their keeping. It appeared that plaintiff paid debts for Moncrief to an amount exceeding the value of the property he received.</p> <p>The defendant’s first request to charge was, that if any part of the consideration of the sale from Moncrief was, that certain notes forged by Moncrief should be taken up by the plaintiff, and if any part of the consideration moving the plaintiff to the execution of the contract was, that by taking up said notes Moncrief would be less liable to be arrested for forgery, then the contract was void as to bona-fide creditors of Moncrief; and that such part consideration need not have been expressed, but might be inferred from the circumstances of the case. The court refused so to charge, and submitted to the jury no question as. to the legality of the consideration of the sale. To the refusal to charge as requested, the defendant excepted. Yerdict for plaintiff.</p> <p>The court erred in excluding the testimony of Hopkins as to the consideration of the contract of pledge, and in refusing to charge as requested. If any part of the consideration was illegal, the entire contract was thereby rendered void as to bona-fide creditors of Moncrief. Badger v. Williams, 1 D. Chip. 137 ; Harding v. Harding, 25 Vt. 487; Lovejoy v. Whipple, 18 Vt. 379.</p> <p>When any part of the consideration of a contract is the suppression or destruction of evidence on which a criminal prosecution might be based, or the stifling of a criminal prosecution in any way, the contract is void. HinsdiU v. White, 34 Vt. 558; Dixon v. Olmstead, 9 Vt. 310.</p> <p>The sale to the plaintiff was valid. No illegal consideration entered into the contract. The plaintiff’s thinking that perhaps if those who held forged paper got their pay they would be less likely to prosecute, infects his acts with no taint of illegality. The question is not what a party thinks, but whether he is induced so to think by representations of the other party; not whether a prosecution will be less likely, but whether any promise tending to make it less likely is given by persons seeking their pay at the expense of public justice. It makes no difference with what motives a man does a legal act.</p> <p>But the question as to legality of consideration becomes important only when the aid of the court is sought to enforce the contract. When the contract is executed, the court will leave parties as they are.</p>

Trespass qua. clau. for depasturing land with cattle, &c. Plea, general issue, with notice of special matter. Trial by jury, June Term, 1877, Dunton, J., presiding.

Assumpsit on a promissory note dated November 21, 1867, whereby, for value received, The Londonderry Water Power Association promised to pay to the order of Avery B. Stowell three hundred dollars on demand, with interest annually, — signed, A. M. Albee, Treasurer. Pleas, the general issue and Statute of Limitations. There were thirty-three defendants, and said Stowell and David Arnold were among them.

Trover, with a count in trespass. The case was referred. The facts sufficiently appear in the syllabus. The court, at the September Term, 1875, Ross, J. presiding, rendered judgment on the report for plaintiff. Exceptions by defendant. No question can arise as to Mrs. Dickerman’s right to sell the drawers at the time she did; nor as to defendant’s right at the time of the sale to take them as they were, and where they were.

Debt on recognizance taken on appeal from a judgment of a justice of the peace. Pleas, nul tiel record and accord and satisfaction, and issue joined. Trial by the court, September Term, 1877, Ross, J., presiding. The pleadings appear from the opinion.

<p> Conversion. Note in Satisfaction of Tort. Infancy as Defense. </p> <p>Defendant, an infant, hired a horse of plaintiff, agreeing not to drive it beyond G.; but soon brought it back, saying it was sick, and exchanged it for another, which he intended to drive to S., a place beyond G., but he said nothing to plaintiff about it, and plaintiff understood that he was not to drive it beyond G. Defendant drove it beyond G., and so overdrove it that it died. Held, that defendant took the second horse subject to the same conditions as to the distance he should drive it, that he took the first one; and that by driving it beyond G , he rendered himself liable in tort for the damage resulting therefrom.</p> <p>In satisfaction of the damage so resulting, defendant, being still under age, gave plaintiff his promissory note, upon which, after defendant .became of age, plaintiff brought suit, to which defendant pleaded infancy. Held, that defendant was liable upon the note to the same extent that he would have been in an action on the cause that formed its consideration, and that his infancy was no defense.</p>

Assumpsit. Plea, general issue, and trial by jury, December Term, 1877, Barrett, J., presiding. It appeared that in the spring of 1876, the plaintiff and the defendant swapped horses, the horse thereby obtained by the plaintiff having a swelled leg. It was then agreed that if the swelling did not subside during the summer, the defendant should pay as damage by reason thereof such sum as one Marcy might estimate it to be.

[In Chancery.] Petition for foreclosure. The petition alleged that on September 16, 1850, Morris C. Fairbanks, one of the petitionees, duly executed a mortgage deed of certain premises in Woodstock to Lyman Mower, conditioned for the payment of the purchase-money thereof specified in nine promissory notes for $100 each, payable respectively in two, three, &c., years from April 1,1851; that the last three of said notes had never been paid ; that the petitioners, having…

Case for malicious prosecution for burning defendant’s barn on August 26, 1875. Plea, the general issue, and trial by jury, December Term, 1877, Barrett, J,, presidiug.

Pleas, that the pauper had not come to reside, and that she was not likely to become chargeable. Trial by jury, December Term, 1876, Barrett, J., presiding. It was conceded that the pauper had come to reside in Plymouth, and the only question made was as to whether she was likely to become chargeable to that town.

Petition to the County Court for leave to enter an appeal from the probate of the will of Hiram Little by the Probate Court for the District of Bradford.

[In Chancery.] Appeal from the Court of Chancery. On July 23, 1869, the orator, as the executor of the will of David Poor, then lately deceased, paid the defendant, then and still the treasurer of Orange County, the sum of $1,000 in payment of a bequest as follows: I give the use, interest, and income, after my decease, the sum of one thousand dollars in cash, to the treasurer of the County of Orange and his successors in office ; the income of said one thousand dollars to…

Case for injury on a highway. Plea, the general issue, and trial by jury, December Term, 1876, Redeield, J., presiding. The injury in question was alleged to have been caused by a log in the highway against which plaintiff drove in the dark, by means whereof he was thrown from his sleigh upon his hip or back, and so hurt as to cause partial paralysis.

<p>Service of Process against Body. Gen. Sts. c. 33, s. 57.</p> <p>Full service of writs against the body, so far as service is material to plaintiff’s right to maintain his suit, is made by arresting the body and exhibiting the process; the furnishing of a copy on defendant’s requirement being a matter wholly between him and the officer.</p>

Indictment for adultery. Plea, not guilty, and trial by jury, December Term, 1876, Redfield, J., presiding. After the jury were empanneled, but before the trial commenced, the State’s attorney moved for and obtained leave to amend the indictment by inserting therein after the words, “ Roxcena Whitney,” the alleged particeps, the words, “ otherwise called Rosa Whitney” ; to which the respondent excepted.

Indictment in five counts, charging respondent with burning several buildings situate in Braintree.