Volume 52 — Vermont Reports

Covenant, alleging that by a certain indenture under seal, between the “ defendant on the one part, and the plaintiff on the other”, the defendant covenanted to pay “ an equal proportion ” of the expenses, &c., of defending all suits that should “ be brought and tried for the purpose of testing between patent rights therein named ” by Dennis Lane or the firm of Lane, Pitkin & Brock, whether “ brought Against either or all of the parties ” thereto, “ or all or either one of…

Trustee Process. A commissioner was appointed, who reported the following facts: In-July, 1875, the defendant, who had become financially embarrassed in the performance of a contract with the Central Vermont Railroad Company for grading, bridging, fencing, &c., on the line of the White River & Montpelier Railroad, and was being sued by certain of his workmen, applied to George Nichols and George M. Fisk for assistance; and Nichols and Fisk, believing money to be due to him…

Book Account. The plaintiff’s account consisted of an item of $15, for consultation and retainer “ in matters relating to farm trade”, under date of December 4, 1871, and an item of $5, for consultation and time, under date of December 2, 1872.

<p> Original Jurisdiction of County Court. Estoppel. </p> <p>In trover for wood of the value of more than $200, it appeared that after defendant converted the wood, and after the action was brought, plaintiff took the wood and used it. Held, that the County Court had original jurisdiction when the action was brought, and that it was not ousted thereof by plaintiff’s subsequent appropriation of the wood.</p> <p>Defendant attached the wood on February 1, as an officer, at suit of a bank, by leaving a copy of the writ in the town clerk’s office. The owners of the wood, who were lumbermen, continued to manufacture wood and lumber from about that time, and to sell and ship it at their discretion, with the knowledge and consent of defendant, who was one of the officers of the bank, and with the implied consent of the other officers of the bank. At some time in April or May, they sold the wood in question to plaintiff, and sawed it and put it into plaintiff’s shed. On May 23, defendant completed service of his writ, and afterwards, having obtained judgment, took out execution and sold the wood thereon ; whereupon this action was brought. Held, that defendant and the bank, having permitted the owners to sell, were estopped from questioning their right so to do.</p>

Petition for Foreclosure, alleging a mortgage executed on November 19, 1869, by the petitionee George to John McLean, to secure payment of certain promissory notes given for the purchase money of a farm ; assignment thereof in due form to the petitioner ; and a mortgage on the same property, for $800, executed on February 11, 1874, by said George and Mary J., his wife, to the petitioner, to secure payment of unpaid interest on the notes described in the former mortgage, of a…

Debt on a probate bond in ordinary form in the sum of $200, executed on March 2, 1872, to the Probate Court for the District of Washington, by defendant St. Clair, as principal, and defendants Horace Clark, Edward F. Smith, and J. P. Lamson as sureties.

It appeared that the plaintiff presented a claim against the defendant estate for 1346.30, which was allowed, and that a claim for a greater sum was presented in set-off. The case was referred, and the referee reported in regard to the claim in set-off the following facts: On May 19,1874, the intestate sold and conveyed certain premises in Roxbury to Lucie A. Wilson, wife of Thomas Wilson, and took from them a mortgage thereon to secure payment of part of the purchase money.

Indictment for Adultery. Plea, not guilty, and trial by jury, September Term, 1878, Redfield, J., presiding.

This was a complaint praying for the issue of a writ of quo warranto. Held: and its proceedings were void, for that no moderator was chosen. Gen. Sts. c. 15, s, 7. The fact that Darling was chosen moderator at the then last March meeting, cannot avail. The moderator has no function beyond the final adjournment of the meeting he is chosen to govern.

<p>Petition por Foreclosure. The petition alleged a mortgage by defendant John White and his wife Mary Jane White, to Jesse White, the intestate, to secure the payment of certain promissory notes executed Decemer 21, 1858; the death of the intestate, and the appointment of the petitioner Warren as administrator of his estate ; settlement of the estate, and distribution by the administrator, by indorsement, of the mortgage notes among the other petitioners, the intestate’s widow and children; execution by the defendants John and Mary Jane of subsequent deeds of portions of the mortgaged premises, and of mortgages of the entire premises to other parties. The grantees in the subsequent deeds and mortgages were made parties defendant.</p> <p>The defendant John answered, denying the execution of a mortgage by himself and his wife on December 21, 1859, or at any time; alleging that he alone executed and delivered a mortgage of his home farm, excluding the homestead, to the intestate, on August 21,1859, and that that mortgage was duly recorded on the same day; alleging that that mortgage did not secure the payment of the notes described in the petition ; alleging that he never knew that his wife ever signed that mortgage, then or afterwards ; alleging that after the mortgage was executed and recorded as alleged, the mortgage had been materially altered, and erasures and additions had been made therein, thereby changing the same as to date, description, and parties, without his knowledge or consent, and, as he believed, by direction of the petitioners or some of them, with intent to defraud; and alleging that he believed the record had been materially altered, and so altered as to show a receipt of the mortgage for record on December 21, with a certificate as follows:</p> <p>The above deed was made out in the first place not including the wife, and her name was afterwards inserted, hut not until after recording, hut all alterations and erasures, both in the deed and upon the record, were made before the final execution thereof.</p> <p>Attest, A. D. Arms, Town Clerk.</p> <p>The other defendants also answered. The answers were traversed, and testimony taken. A copy of the mortgage in question was exhibited, whereby it appeared that words in the mortgage had been inserted or changed so as to make the wife a party, and that a memorandum, in substance like the one stated in the answer of the defendant John, was appended thereto. There was testimony tending to show that the defendant John went to the town clerk’s and signed and acknowledged the deed on August 21, that the mortgage was then recorded, that on December 21 he went to the town clerk’s with his wife, procured the town clerk to make the alleged alterations in the mortgage and in the record, and procured his wife to sign and acknowledge before the witnesses before whom he had signed, and that he and his wife then both acknowledged the mortgage. There was also evidence concerning the intent with which that was done, and with which the mortgage was delivered to and received by the grantee therein.</p> <p>The cause was heard at chambers by Redfield, Chancellor, on petition, answers, traverse and testimony, and it was ordered and decreed that the deféndants be foreclosed. Appeal by the defendants.</p>

Assumpsit on a promissory note dated May 23, 1866. The writ was dated November 5, 1877, and was served on November 6.

<p>These two actions were in trover. The first one was by an assignee in insolvency for property of the debtors, taken in attachment by the defendant, a deputy sheriff, on writs issued at suit of various creditors. The defendant pleaded the general issue, and justified under processes. The case was heard by the court, Redeield, J., presiding, at the February Term, 1879, Orleans County, on an agreed statement of facts, in substance as follows :</p> <p>The defendant attached the property in question, on a writ issued at suit of the Barton National Bank, on September 21, 1878, and on writs issued at suit of other parties on the 28d and 24th. The several debts thereby sought to be recovered were incurred and existed prior to November 28, 1876, but' the debt due to said bank was evidenced by promissory notes executed by the debtor, after that date but before September 1, 1878. On October 29, 1878, the debtors were adjudged insolvent under the state law, and on January 8, 1879, the plaintiff was appointed assignee. On the 10th, the estate of the insolvent was duly conveyed to the plaintiff, who thereupon demanded the property in question of the defendant. The defendant refused to surrender it, and the plaintiff brought this action therefor. It was agreed that the only question for the court was, whether the attachments were good as against the assignee.</p> <p>The court rendered judgment, pro forma, for the plaintiff; to which the defendant excepted.</p> <p>The other action was by a constable for property taken from his possession by an assignee in insolvency. The facts were agreed to be as follows :</p> <p>On December 18 and 19, 1878, the plaintiff took the property-in question in attachment, as the property of George H. Crandall, on a writ issued at suit of Isaiah Huntley, to recover a debt that-accrued after August 30, 1868, but before November 28, 1876. On January 11, 1879, certain creditors of Crandall instituted proceedings against him, which resulted in an adjudication of insolvency. On February 18, the property of the insolvent was duly conveyed to the defendant, as assignee, and, on February 24, he demanded the property of the plaintiff. The plaintiff claimed to hold it by virtue of said attachment, whereupon the defendant took the property and converted it to his own use. The plaintiff afterwards demanded the property of the defendant, but the defendant claimed to hold it as assignee, and refused to deliver it. The plaintiff thereupon brought this action. The debt was incurred, and both parties resided, in this State.</p> <p>At the March Term, 1879, Washington County, the court, Red field, J., presiding, rendered judgment pro forma, for the plaintiff; to which the defendant excepted.</p> <p>Our insolvency law, having been enacted to take effect while the National Bankrupt Act was in force, was unconstitutional and void. Bump Bank. 259 ; 1 Kent Com. 389, 391; Day v. Bard-well, 97 Mass. 246 ; Commonwealth v. O'Hara, 6 Am. Law. Reg. N. s. 765 ; Van Nostrand v. Barr, 2 N. B. R. 485; Martin v. Berry, 2 N. B. R. 629, and cases passim. Having been unconstitutional at its passage, it was not made otherwise by the repeal of the national act. Reynolds v. Nichols, 12 Iowa, 398; Kimball v. Rosendale, 42 Wis. 407, 412, et seq.</p> <p>But at all events, section 43 of the Insolvent Act is unconstitutional, in that it impairs the obligation of contracts existing when the act became operative. Pomeroy Const. Law, 387, et seq.; Sedgw. Const. Law, 652, 647, note; Walker Int. Am. Law, 191; Von Hoffman v. Quincy, 4 Wal. 535 ; Walker v. Whitehead, 16 Wal. 314 ; White v. Crawford, 84 Pa. St. 433 ; Lasly v. Phipps, 13 Am. Law. Reg. N. s. 236, et seq.; Lathrop v. Brown, 10 Am. Law Reg. N. s. 638, and note; Edwards v. Kearzey, 6 Reporter, 545, and cases passim. If that section is constitutional because it relates to the remedy, section 75 is by parity of reasoning also constitutional; yet it takes away all remedy from the creditors therein enumerated, unless they make themselves parties to the insolvency proceedings. Clay v. Smith, 3 Pet. 411.</p> <p>The question whether a debt contracted before the passage of the Act of 1876, can constitutionally be discharged under its provisions, does not arise. The only question of constitutional law presented is, whether the Legislature of a State may properly provide for an equal distribution-of an insolvent’s property among all his creditors, though one creditor may have attached. The right is clear. The right to seize the debtor’s property in advance of the establishment of a debt by judgment is peculiar to the New England States. It exists wholly at the pleasure of the Legislature, and might be abrogated as to all creditors without cause of legal complaint. The precise question here involved arose in Bigelow v. Pritchard, 21 Pick. 169, and it was there held that insolvency proceedings dissolved the attachment. That case has been followed in Massachusetts. Kilborn v. Lyman, 6 Met. 299, per Dewey, J.; Ward v. Proctor, 7 Met. 318. And see Reed v. Frankfort Bank, 23 Me. 318.</p> <p>The debt of the Barton National Bank was contracted after the passage of the act. The notes were the only contract having any legal existence. Blanchard v. Russell, 13 Mass. 1; Rindge v. Break, 10 Cush. 43 ; Bangs v. Watson, 9 Gray, 211; Austin v. Oaverly, 10 Met. 332; Pierce v. Eaton, 11 Gray, 398.</p> <p>The effect of the national act is merely to suspend the state law. Ex parte Fames, 2 Story, 322 ; Baldwin v. Hale, 1 Wal. 228, and cases passim.</p> <p>The insolvency law does not impair the obligation of contracts, but merely affects the remedy. Obligation and remedy are distinct things. The Legislature may modify remedies. Mason v. Hale, 12 Wheat. 370 ; Cray v. Munroe, 1 McLean, 528 ; Sturges v. Crowninshield, 4 Wheat. 122, 200; Bronson v. Kenzie, 1 How. 311; McCracken v. Hayward, 2 How. 608, and cases passim.</p> <p>All property of insolvent debtors in this State is under the control of the Legislature.</p> <p>The act of 1876 was not retrospective, and therefore could not impair the obligation of contracts. Baratee v. Ovit, 4 Vt. 45 ; Curtis v. Whitney, 13 Wal. 68 ; Mason v. Haile, 12 Wheat. 370 ; Cardell v. Carpenter, 43 Vt. 84; Alexander v. Follet, 5 N. H. 499; Springfield v. Hampden, 6 Pick. 500 ; Morse v. Coold, 1 Kernan, 281, 286; 1 Kent. Com. 455, and cases passim.</p> <p>The act operates only on remedies, and remedies are under the control of the Legislature to the extent here assumed. 1 Kent. Com. 419 ; Sturges v. Orowninshield, 4 Wheat. 122, 200 ; Ogden v. Saunders, 12 Wheat. 213, 284; Morse v. Pineo, 4 Vt. 281; B,ichardson v. Cook, 37 Vt. 603 ; Bigelow v. Pritchard, 21 Pick. 169; Morse v. Coold, supra, and cases passim.</p> <p>The Legislature had no power to make the law. The law, therefore, had no existence to begin with, and it was given none by the repeal of the national act. Sturges v. Crowninshield, 4 Wheat. 122 ; Ogden v. Saunders, 12 Wheat. 213; Baldwin v. Hale, 1 Wal. 223, and cases passim.</p> <p>But if the Legislature had such power, the act is void as to previously existing contracts, as being in conflict with the constitutional inhibition of legislation impairing the obligation of contracts. Sturges v. Crowninshield, supra; Farmers and Mechanics’ Bank of Pennsylvania v. Smith, 6 Wheat. 131, and cases passim.</p> <p>By the laws of the State existing when the contract was made, the creditor had the right to compel performance by attaching property. The Legislature cannot take away that remedy, without providing another as substantial. Creen v. Biddle, 8 Wheat 1, 17; Bronson v. Kenzie, 1 How. 811, 817; MeCraeleen v. Hayward, 2 How. 608, and cases passim.</p> <p>The Legislature has always used great caution in legislating upon remedies. See Statute of Frauds, the Homestead Act, and the various statutes of exemption.</p>

The bill prayed that the defendants be restrained from selling on execution certain shares of stock on which the orator had a lien, and for general relief. It appeared from the bill, answer, and testimony, that, on November 9,.1876, John Q. Hoyt, of New York, who was the owner of two hundred and fifty shares of stock in the Central Vermont Railroad Company, applied to the orator, who also resided in New York, for a loan of $10,000.

<p> Estoppel. Former Adjudication. Petition for Discontinuing Highway. </p> <p>Petitions for laying out and discontinuing highways are not proceedings wherein a former adjudication may be asserted as working an estoppel, as in an ordinary action at law, such petitions, from the nature of the matters to which they relate, being addressed largely to the discretion of the court. Thus, where a petition for the discontinuance of a highway that had been established but not wrought for travel, alleged the finding of a better route, and the commissioners reported that the newly found route was better, but that a former petition for discontinuance of the established highway and for establishment of one on the newly found route had been dismissed, and that the reasons for establishing the highway where it was established still existed, it was held, that there was no legal reason for dismissing the petition.</p>

<p> Evidence. Expert Witness. Practice. </p> <p>The question whether a witness is an expert, is a preliminary question for the court, and is to he tried like any other issue of fact; and it is error for the court to waive the trial of that question on the ground that the same witness was permitted to testify to the same matter on a former trial between other parties.</p>

General Assumpsit to recover the interest on certain bonds issued by the defendant. Plea, general issue, with notice of special matter. Trial by jury, September Term, 1878, Barrett, . J., presiding.

Assumpsit. The case was referred, and the referee reported the following facts: About October 1, 1877, the defendant bought of the plaintiff a .yoke of steers, agreeing to pay therefor $65 in money, and beef of the value of $1, in one month thereafter.

Assumpsit by the collector of school district No. 4, in Victory, against the constable of that town, for non-resident taxes collected' and not paid over to the district. Plea, general issue, with notice that the plaintiff was not the legal collector. Trial by jury, March Term, 1879, Essex County, Powers, J., presiding.

Trover for five horses, &e. Plea, the general issue, and trial by jury, April Term, 1878, Franklin County, Royce, J., presiding. The defendant admitted the taking of the property in question, but claimed title thereto through a sheriff’s sale thereof to him on an execution against the plaintiff in favor of William P. Ewins.

Assumpsit on a policy of insurance against fire, issued to Norman Hudson, on October 11, 1871. Plea, general issue, and trial by jury, September Term, 1876, Rutland County, Wheeler, J., presiding.

This was an appeal from a decree of the Probate Court for the District of Franklin, disallowing a part of the account of the plaintiff as administrator of the defendant estate.

The bill disclosed the following case; On May 1, 1871, the Lamoille Yalley Railroad Company, the Montpelier & St. Johnsbury Railroad Company,… Held: for the payment of said debts ; that the orators in this cross-bill had a proper lien upon, and right of attachment against, all the income and personal property of said companies for the payment of said debts, superior in equity to the claim of any of the holders of said bonds ; that the orators Howe, &e., had applied to said…

The bill, wherein James May, Henry Heywood, and the Probate Court for the District of Essex, were orators, and Dennis May, Solon Gould, and David Hibbard were defendants, was filed to procure the defendants to be ordered to affix their seals to an administration bond wherein Hibbard and Preston May were sureties and the other defendants were principals.

Case for erecting a dam higher than defendants had a right to erect, and thereby causing water to flow back upon the plaintiff’s water-wheel. Plea, the general issue, and trial by jury, December Term, 1877, Bennington County, Dunton, J., presiding.

Tbespass and trover for a horse, taken from the plaintiff’s intestate. Plea, general issue, with notice of justification. Trial by the jury, June Term, 1879, Caledonia County, Ross, J., presiding.

Debt on judgment brought to Windsor County Court at its May Term, 1876, by a writ served as trustee process, on January 25. The defendant and the trustees then appeared, and the cause was continued. At the next term judgment was rendered against the defendant. The cause was continued as to the trustees from term to term.

Case for obtaining credit by false and fraudulent representations of solvency, with a count in trover.

These were petitions by the State’s attorney of Bennington County, on his own motion, under No. 74, Sts. 1876, for writs of quo warranto against the respondents for usurping and exercising certain offices of the village of Bennington.

The bill, which was filed in said court, in Essex County, at the September Term, 1878, alleged that at the March Term, 1875, in said county, the defendant Woodward presented a petition to said court, alleging title in himself to certain water therein described, and alleging that the orator was exercising ownership over the same, derogatory to said defendant’s right, and praying for an injunction; that such proceedings were thereupon had that at the March Term of said court,…

The first of these causes was general assumpsit, with specification of a promissory note signed by one McAllister as principal, and the defendant as surety: plea, general issue, with notice of special matter. The cause came on for trial at the April Term, •1878, in Eranldin County. The plaintiff offered the note in. evidence, but the defendant objected to its introduction, for that he was surety only, and that the note was, therefore, inadmissible under the common counts.

Case against a sheriff for the default of his deputy in not keeping attached property so that it might be taken in execution.

<p>Case for injury upon a highway. Plea, general issue, with notice of settlement. Trial by jury, June Term, 1878, Caledonia County, Ross, J., presiding.</p> <p>The injury in question, which was to horse and wagon, was received on October 27,1876. On or about November 15, two of the'defendant’s selectmen went to the plaintiff’s, and had conversation with him in regard to a settlement of his claim, but, as the plaintiff said, came to no agreement. The defendant offered evidence tending to show that the plaintiff then said he would take $10 for damages to the wagon, and for medicine and care for the horse, and that the horse was not permanently injured, but only scratched a little ; that the selectmen then made no distinct or binding offer, and that the plaintiff accepted none; that when they went away they told the plaintiff they would see the other selectmen, and, if they concluded to settle, would send him an order; that they saw the other selectmen, and sent the plaintiff an order for $10, which they understood was in payment for all damages to both horse and wagon ; that the order was not afterwards reported to the town as outstanding, for the reason that as they kept no record of orders it was overlooked. There was some evidence tending to show that the plaintiff admitted to several persons after the time of the alleged settlement that he had settled with the town. The plaintiff testified that he told the selectmen at his interview with them in November, that he would take $10 for damages to the wagon, and that if the horse came out all right that should settle the matter, but that no settlement was made ; but he admitted that he received the order within a few days of November 18, at the hands of a Mr. Sargent, who was not a town officer, and filed it, and kept it till May 3, when he handed it back to one of the defendant’s selectmen. He testified that the selectman to whom he returned it received it without objection, but that was denied. The plaintiff urged that if all the evidence adduced on the part of the defendant were true, it would not prove a settlement ; but the court ruled otherwise, and submitted the question to the jury; to which the plaintiff excepted. Yerdict was found for the defendant.</p> <p>The plaintiff afterwards moved to set aside the verdict and for a new trial, for that in the course of the trial several of the jurors saw the horse alleged to have been injured, as they were passing into court, and stopped to examine it. The court found that immediately on the assembling of the jury the plaintiff’s counsel called the attention of the court to the fact that some of the jurors had been examining the horse; that the court thereupon allowed counsel to inquire of the jurors, and the jurors admitted having seen the horse ; that the examination of the horse was not to the jurors corroborative of the plaintiff’s'testimony as to the value of the horse, or as to the extent of the depreciation claimed to have been caused by the alleged injury, but otherwise ; that one juror said he presumed he formed an opinion from the examination of the horse as to its value, and the condition of its injured leg. The court also found that the jurors did not intend to misconduct themselves by going to examine the horse, and that they did only what might have been reasonably expected, and that the plaintiff did not know that the horse was going to be or was hitched there, until after the jurors had examined it, but did not find that any injustice was done to the-plaintiff therein, for that the jury found that he was not entitled to recover at all. The court ruled that the facts were not such as to entitle the plaintiff to a new trial, and overruled the motion, with costs; to which the plaintiff excepted.</p> <p>When the order was returned and accepted, the former arrangement was annulled, and the parties were reinstated in their former position. Even if the plaintiff had agreed to accept the order in settlement of his claim, no rule of law would prevent a rescission. See Smith v. McCall, 48 Vt. 422.</p> <p>The motion was erroneously overruled. The plaintiff was not bound to show that he , was injured by the examination of the horse: it is enough if he might have been. McDaniels v. McDaniels, 40 Vt. 363 ; Knight v. Freeport, 13 Mass. 218 ; Hilliard New Trials, 167, 175, and cases passim.</p> <p>There was sufficient evidence of a settlement to take the case to the jury. Wemet v. Missisquoi Lime Co. 46 Vt. 458. The finding was upon evidence, and is conclusive. West River Bank v. Gale, 42 Vt. 27 ; Williams v. Heywood, 41 Vt 279, and cases passim.</p> <p>The motion was properly overruled.</p>

<p> Promissory Note. Principal and Surety. Parol Evidence to Vary Written Contract. Statute of Frauds. </p> <p>Where the language of a promissory note is, “ We jointly and severally, each as principal, promise,” &c., and the word surely is not affixed to any of the signatures thereto, the signers thereof are, as to the holder, all principals. Thus, where in general assumpsit by the payee of such a note against one of the makers, defendant asserted that he was in fact a surety for his co-maker, and objected to the admission of the note in evidence, for that it did not support the declaration, it was held that the note was admissible.</p> <p>Defendant offered to prove by parol that it was agreed between himself and his comaker that he should be held for but six months. Held, but an offer to vary the written contract, and inadmissible.</p> <p>He also offered to prove that after the expiration of the six months he applied to the plaintiff to have him collect of his co-maker, who was then solvent but afterwards became otherwise, when plaintiff told him the co-maker was good, and that he would look to him for payment. Held, inadmissible, because defendant was, as to plaintiff, not surety but principal, and because’it did notappear that any valid contract upon consideration was then made between plaintiff and defendant, nor that, relying on plaintiff’s representation, defendant forebore to protect himself.</p> <p>He also offered to prove that plaintiff afterwards verbally agreed with defendant’s comaker, for valuable consideration, on an extension of time. Bdd, that the contract was within the fourth section of the Statute of Frauds, aud that the evidence was inadmissible.</p>

<p>Case for the bite of a dog. Trial by jury, September Term, 1879, Pierpoint, C. J., presiding.</p> <p>The evidence introduced on the part of the plaintiff tended to show that the dog, a bull-terrier that was being kept by the defendant at his store in the city of Burlington, bit the plaintiff, a lad thirteen or fourteen years of age, in three several places, as he was going along the street in the village of Winooski, jfnd inflicted several troublesome wounds, by which he was incapacitated from work for a considerable space of time. There was no direct evidence that the dog had ever before bitten mankind but there was evidence tending to prove that he had been known in one instance to attack a horse without pi-ovocation, as he was being led from á stable, and to bite him twice in the breast, and there was much evidence tending to prove that he was accustomed to attack other dogs without provocation as they passed the place where he was kept; that the neighbor's and customers of the defendant had frequently called on the defendant to restrain the dog as unfit and unsafe to be at large; that the defendant had kept the dog confined much of the time, and, when he had suffered him to run at large, had kept him muzzled a part of the time ; and that the dog was exceptionally ferocious — one of the witnesses describing him as " the most wickedest kind of a dog.”</p> <p>After the evidence was all in, the defendant requested the court to direct a verdict for him, but the court refused, to which the defendant excepted.</p> <p>The court charged that the plaintiff was- entitled to recover for all the injury he had personally sustained, all the pain and anguish he had personally suffered, by reason of the biting, and for that only. It also charged that it was no slight thing for a lad to be so bitten, such wounds bteing dangerous in a variety of ways; that life was often taken by such injuries, and that when the time would come, could not be told ; that one who had been bitten by a dog " must lead a considerable portion of his life . . . under an apprehension . ... not pleasant to reflect upon,” because one who had received such injuries, inflicted by a dog not known to be rabid, would sometimes after a considerable time die of hydrophobia ; that whether there was any indication of such a result here, no one could tell — at least not until after a considerable lapse of time-. To that portion of the charge embodied in the last sentence the defendant excepted.</p> <p>The court should have directed a verdict as requested. It was not shown that the dog had a propensity to bite mankind, and that the defendant knew it. 1 Ad. Torts, 229 ; Kelly v. Tilton, 42 N. Y. 269; Keightlinger v. Egan, 65 Ill. 235 ; May v. Burdett, •9 A. & E. 101; Smith v. Pelah, 2 Str. 1246. The burden was on plaintiff to prove that, and it could be proved only by proof of instances of an exhibition of a propensity to bite mankind. Arnold v. Norton, 25 Conn. 92 ; Smith v. Pelah, supra. Proof of a propensity to bite others of its kind, or other animals, was not sufficient. Keightlinger v. Egan, supra.</p> <p>That portion of the charge that was excepted to related to a subject not before the jury, and was calculated to raise unwarrantable apprehensions, and was therefore erroneous.</p> <p>The court properly refused to direct a verdict. It was sufficient to show that the dog was of a ferocious nature, and one that would be likely to bite people, if suffered to go at large. Shearm. & Redf. Negl. 231, 234 ; McCoskill v. Elliot, 5 Strob. 196 ; Buehley v. Leonard, 4 Denio, 500 ; Jones v. Perry, 2 Esp. 482. The liability is for keeping such an animal with knowledge of its propensities — not for keeping it negligently. Laverone v. Manginti, 10 Am. 269.</p> <p>Thát part of the charge excepted to was without error.</p>

<p>Audita Querela. Pleading. Waiver.</p> <p>An absent defendant against whom judgment has been rendered by default and without notice, may maintain audita querela to set aside the judgment, if no recognizance for review was entered into, although no execution has been issued against him, and notwithstanding the statute providing a remedy by petition for new trial.</p> <p>The principal defendant and the trustee in a suit begun by trustee process, joined in bringing audita querela to set aside the judgment therein of a justice of the peace wherein they were severally adjudged liable on default. The cause was referred and heard by the referee. After the evidence was all in, defendant for the first time objected to the joinder of the plaintiffs. Meld, that the right to object was waived by the agreeing for the reference.</p>

<p>Debt on a bond in the penal sum of $2,000, executed by Charles H. Mitchell as principal and the defendants as sureties. Pleas, general issue, performance, and plea of offset. The case was referred, and the referee reported the following facts :</p> <p>On November 17, 1874, George W. Brown, acting for the plaintiff, who was then the general New England agent of the Wheeler & Wilson Manufacturing Company, at Boston, entered into an agreement with Mitchell, whereby Mitchell agreed to take the agency for the sale of sewing machines and sewing machine goods at Burlington. It was agreed that the plaintiff should turn over to Mitchell-all the machines and goods then at the Burlington agency and the horse and wagon theretofore used there, supply him with such other machines and goods as he might require to supply the trade at that agency, and pay him a commission of thirty-six per cent, on the retail price of all machines disposed of by leasing, and forty-one per cent, on all machines sold for cash, and send him the same each month. Mitchell agreed to “ continue the business of the agency”, pay the rent and all expenses of the store, pay for the keeping of the horse, pay the freight on all goods, send the plaintiff a report of the business each month, with all money collected, and furnish the plaintiff a bond such as he required of his agents. It was also agreed that the plaintiff should advance money at the outset for a month or two on account of commissions, to enable Mitchell to pay rent and meet other incidental expenses. On the next day Mitchell took possession, and entered upon the duties of the agency. About the same time he delivered to Brown the bond on which this action was brought. The condition thereof was, that Mitchell should use all due care and diligence in the custody, sale, and leasing of all machines, machine attachments, and other goods that had been, or thereafter might be, entrusted to him for sale, &g. ; should return all such property not sold or leased when requested; should account for and pay over the proceeds of all such property that had been, or thereafter might be, entrusted to him, that had been or thereafter might be sold, leased, or in any way disposed of by him, and all funds that might be in his hands as such agent; and should indemnify and save harmless said company and the plaintiff from “any and all loss, cost, damage, trouble, or expense by reason of any neglect or default of said . . . Mitchell to the same or any of the above conditions”. Mitchell then went on with the business of his agency, and the plaintiff sent him money and paid his rent from time to time, as agreed. On January 18, 1875, Mitchell, having sold or leased machines so that he was entitled to commissions to the amount of $144.48, and having collected and retained $40 on leases, to which he was not entitled, took one Clapp as a partner in the business of his agency; and Mitchell and Clapp continued the business till March 18, 1875, when, having sold or leased other machines on which the commissions were $164.36, and collected and retained the further sum of $115 on leases, Mitchell surrendered the agency to Brown. At some time during the continuance of the agency, Mitchell collected $5 from one O’Neil, and $11.48 from others, on leases taken by former agents, and did no't account therefor to the plaintiff. At the time the agency was so surrendered, the goods on hand were, per inventory, $44.16 less in value than the goods on hand when Mitchell took possession. After the termination of the agency, the plaintiff, with Mitchell’s knowledge and approval, paid $34.10 for rent in arrear on the store, and $37.48 for horse-keeping. The plaintiff sought to recover the sums so collected and retained, the sums paid for rent and horse-keeping, the difference between inventories, and other sums charged to Mitchell on account of alleged delinquencies in the conducting of the agency, amounting in all, after deducting commissions, &c., to $330.33, with interest thereon from July 31, 1875. The defendants denied their liability under the bond for money advanced to or paid for Mitchell, or for money collected by Mitchell on the leases of former agents, or for the acts and omissions of Mitchell & Clapp while they carried on the business as partners, and claimed that under their plea in offset the commissions earned during the agency should be applied in settlement of the plaintiff’s claim for money collected on leases, and for goods sold, to the exclusion of the claim for money advanced, &c. They claimed also that the plaintiff advanced the money to and on account of Mitchell without their knowledge or consent, that Mitchell took Clapp into partnership without their knowledge or consent, but with Brown’s approval, and that some of the money derived from the business was received by Clapp, and never actually came into Mitchell’s hands ; and it appeared that they knew nothing of the terms of the agreement under which Mitchell took the agency, except as it appeared in the bond. It appeared, also, that, although Brown knew that Mitchell took Clapp into partnership, neither he nor the plaintiff ever recognized Clapp as an agent of the plaintiff, but refused to do so ; and that the plaintiff, to whom Mitchell at one time sent a note in course of business indorsed “ Clapp & Mitchell,” would not accept the note with that indorsement, but returned it to Mitchell for his individual indorsement.</p> <p>The referee found that Mitchell was responsible for the acts of Clapp ; that the items for rent and horse-keeping were properly charged, “ because Mitchell agreed to pay the rent and horse-keeping, and those items accrued during his agency, and he having neglected to pay them, the plaintiff was bound to pay them, as the lease was in his name, and the account for the horse-keeping was chai'ged against him, or the sewing machine company, with the knowledge of the plaintiff, Mitchell, and the parties who kept the horse ” ; that the plaintiff’s account was correct; that the balance thereof resulted “ from Mitchell’s neglect to pay the expenses of the agency, of to transmit to the plaintiff the money collected by him for the plaintiff, and to account for the property of the plaintiff which came into his hands in pursuance of the said agreement made by him and Brown in the outset ”; and that the plaintiff was entitled to recover the sum claimed.</p> <p>The defendants excepted to the report, for that, on the facts found the plaintiff was not entitled to recover the item of $11.48, nor the item of $5, nor the items of charge for money advanced and money paid for rent, nor the item of charge for money collected and retained by Mitchell & Clapp ; and for that the referee erred in his decision in regard to the application of commissions under the plea in offset. But the court, Pierpoint, C. J., presiding, overruled the exceptions, pro forma, at the September Term, 1877, and rendered judgment, pro forma, on the report for the plaintiff for $330.33 with interest from July 31, 1875; to which the defendants excepted.</p> <p>The liability of the defendants is to be determined solely by the contract of suretyship. Miller v. Stewart, 5 Pet. Cond. 728 ; United States v. Boecker, 21 Wal. 657. It is settled that a surety is not to be held beyond the scope of his engagement.. His liability is determined strietissimi juris. McCluslcey v. Cromioell, 11 N. Y. 593 ; Leggett v. Humphreys, 21 How. 66, 75; Stull v. Hance, 62 Ill. 52, and cases passim.</p> <p>The liability of the defendants was terminated by the taking in of Clapp as a partner. 2 Chit. Cont. 766; Burge Suretyship, 69 ; Bellairs v. Bbsworth, 3 Camp. 52; Bussell v. Perkins, 1 Mason, 368, and cases passim. Mitchell was subject to the plaintiff’s control, and not to the defendants. Coe v. Vodges, 71 Pa. St. 383; 3 Kent Com. 124, note a; 3 Ad. Cont. 1119.</p> <p>The commissions should be applied in offset to charges for matters other than money advanced. Pell Guar. 521; Burge Suretyship, 192.</p> <p>The collection of sums due under old leases was wholly gratuitous. There is no liability for default therein.</p> <p>The plaintiff’s right to recover is not affected by the copartnership arrangement. Palmer v. Bagg, 64 Barb. 641. It is no defence that the defendants did not ascertain the nature and extent of the liability they assumed'. 66 N. Y. 326; 2 Am. Lead. Cas. 480.</p>

<p>Appeal from the Court of Chancery.</p> <p>The bill was brought to redeem two horses, a wagon, a sled, and two harnesses, and was filed in August, 1874. It appeared that on December 15, 1873, the orator purchased a horse of George P. Howe and William Folsom for the price of $175, and on the same day executed to them a writing wherein he acknowledged the receipt of the horse, and agreed to pay therefor the agreed price, with interest, on or before April 1 then next, and that the horse should be and remain the property of Howe and Folsom, and be at their full control and disposal, in case payment should not be made. The orator at the same timé and by the same contract assigned to the same parties the other chattels described in the bill as further security for the payment of the $175, with the right to dispose of the same in the same manner upon the same condition. The orator failed to make payment, and the defendants, to whom Howe and Folsom assigned their rights under the agreement, took the property from the orator’s possession, without the orator’s consent, and with full knowledge of his equitable claim, and kept and used it, but did not foreclose the orator’s equity, nor sell the property on notice to the orator, nor did the orator ever part with his equity therein. Questiofi was made by the pleadings ' and in evidence relative to a tender alleged to have' been made by the orator, and as to an alleged false warranty of the horse as determining the sum justly due, but as it does not bear on the point decided, it is not stated.</p> <p>At the September Term, 1876, the court, Pinpoint, Chancellor, ordered and decreed that the orator was entitled to redeem the property by paying to the defendants the sum of $175, with interest thereon, after deducting therefrom the value of the use of the property while in the defendants’ possession, and the value of such of the' property, if any, as they had sold, used up, or destroyed ; that the matter be referred to a master for the ascertainment of the sum so to be paid ; and that the question of costs be determined on the coming in of the master’s report.</p> <p>Appeal by the defendants.</p> <p>The orator has the same right to redeem that he would have if the property was real estate. 2 Hilliard Mort. 585, 542, 'et seq.; 2 Story Eq. Jurisp. s. 1031; Patehin v. Pierce, 12 Wend. 61, et seq.; Blodgett v. Blodgett, 48 Vt. 32.</p> <p>The defendants should account for rents and profits, and for such of the property as may have been sold, &c. 1 Hilliard Mort. 448, et seq; Seaver v. Durant, 39 Vt. 103, and cases passim.</p> <p>The orator should recover costs, even if there should be something found due to the defendants on the accounting, for they deny their liability to account and the orator’s right to redeem. Mott v. Harrington, 15 Vt. 185, 198 ; Hills v. Loomis, 42 Vt. 562.</p> <p>The contract was a mortgage of the property described. Conner v. Carpenter, 28 Vt. 237; Blodgett v. Blodgett, 48 Vt. 32.</p> <p>The legal effect of it after condition broken, was to invest the mortgagees with an absolute title. 2 Hilliard.Mort. 478, et seq. ; 1 Story Eq. Jurisp. s. 776 ; Adams Eq. 259; Brown v. Bement, 8 Johns. 96 ; Langdon v. Buel, 9 Wend. 80. Their sale to the defendants operated as a foreclosure. Burnell v. Marvin, 44 Vt. 277 ; 2 Story Eq. Jurisp. ss. 1030, 1031, and cases cited; 1 Parsons Oont. 569; Hinman v. Judson, 13 Barb. 629; Holmes v. Bell, 3 Cush. 322.</p> <p>A tender of the sum due was necessary, but none was made.</p>

<p>[In Chancery.]</p> <p> Jurisdiction in Fequity. Mistake of Fact. </p> <p>The owners of certain premises executed a mortgage thereof to John to secure payment of certain notes, and the mortgage was duly recorded. John sold and delivered all but one of the notes to James. Certain of the owners afterwards executed a second mortgage to another party to secure payment of other notes. The second mortgage and the notes thereby secured were taken from the mortgagee and payee thereof by V. W. & Co., for value, but with notice of the prior mortgage. Afterwards, the note retained by John having been paid, and James having become entitled to the benefit of the first mortgage, James, John and one of the mortgagors, desiring to invest James with the ownership of the mortgage, but being ignorant of such matters, employed thetown clerk to do whatever was necessary to that end, telling him it was desired to transfer to James all the rights of John under his mortgage, and that there was a second mortgage on the premises. The clerk thereupon drew new notes in lieu of those that James then held, of the same tenor and date, but payable to James, and a new mortgage of that date, also running to James, to secure their payment, and procured John, with the assent of James, to discharge the original mortgage of record. Those steps were all taken under the supervision and by the advice of the clerk, and the clerk told James that he had acquired by the new mortgage a first lien on the mortgaged premises as security for his debt, and both James and John so believed. On a bill by James against Y. W. & Co., praying for the re-establishment of the priority of his lien and for foreclosure of his mortgages, it was held, that the mistake by which John with the assent of James was led to discharge the original mortgage was a mistake of fact, and that equity would give the desired relief.</p>

<p>Case for the killing of four cows by a train on the defendant’s railroad on the night of August 6, 1877. Plea, general issue, and trial by jury, April Term, 1879, Pierpoint, C. J., presiding.</p> <p>It appeared that the defendant’s railroad, which was constructed in 1876 and 1877, and put in partial operation about a month before the infliction of the injury complained of, ran through the plaintiff’s meadow, a distance of about one hundred and twenty-five rods ; that there was no fence between the railroad and the meadow, nor anything to prevent cattle from straying from the meadow onto the track ; and that the cows when killed were lying on the track.</p> <p>The pi afta tiff testified that the meadow, which contained about twenty acres, lay between the highway and the railroad, and that his house stood in the meadow; that for three or four days before the accident, the feed being short in his pasture, he had turned his cows into the meadow to graze ; that on the night of the accident he milked them about dark, and left them for the night in the meadow about fifteen rods from the track ; that he knew the night passenger train, by which the cows were killed, would be along as usual at about 11 o’clock, but paid no attention to the going of the cows onto the track, supposing the defendant would take care of that; that during those days the cows went from the meadow onto the track twelve times, that he knew it, and saw the trains stop several times and saw the cows driven off, and that he sent his dog to drive them off.</p> <p>The evidence tended to show that the defendant began building fences along its road early in the spring, fencing pastures first, and that at the time of the accident it was fencing meadows in the plaintiff’s neighborhood; that the defendant practiced fencing meadows into which people wanted to turn cattle, in preference to others; that as the plaintiff had not harvested his hay and grain, and had given no notice that he wanted to turn his cattle into his meadow, or that he wanted a fence, and as the defendant did not know that the plaintiff wanted to turn his cattle into his meadow before harvesting, the defendant was building other fences as aforesaid as rapidly as possible ; and that it in fact reached the plaintiff’s meadow a few days after the accident. There was no evidence to show, and no claim was made, that there was any negligence in the management of the train.by which the cows were killed.</p> <p>When the evidence was all in, the defendant requested the court to rule that the evidence showed such negligence on the part of the plaintiff that he was not entitled to recover. The court refused so to rule; to which the defendant excepted.</p> <p>The defendant requested the court to charge that if the injury resulted wholly or partly from the plaintiff’s negligence he could not recover ; that the duties of the defendant in the building of fences were defined by section 50, c. 28, Gen. Sts. and not by section 47 ; that if the defendant failed to construct the fence, the plaintiff had a right to construct it and call on defendant to pay therefor, according to the provisions of sections 51, 52, c. 28, Gen. Sts., and that in considering the question of care on plaintiff’s part the jury might consider that. The court refused so to charge, but ruled that the defendant was liable, and submitted to the jury the question of damages only. To the refusal of the court to rule and charge as requested, the defendant excepted.</p> <p>An action is given by the statute for damages occasioned by want of fences after the road is in running order, and not otherwise. Here the road began at the earliest practicable moment, and was proceeding with the utmost dispatch. If the plaintiff’s necessity was more urgent than the diligence on the part of the defendant could meet and satisfy, he had an ample remedy by building a fence himself. Again, if the damage was occasioned wholly or partly by the negligence of the plaintiff, it was not occasioned by want of fences, and he could not recover. This case is analagous to cases for damage on a highway. The reasoning on which the doctrine of contributory negligence is applied in that class of cases is equally applicable in this. Noyes v. Morristown, 1 Vt. 353. The court, therefore, having declined to direct a verdict, as requested, erred, not only in refusing to lay these features of the case before the jury, with proper instructions to be weighed in considering the question of due care on the part of the plaintiff, but also more obviously in refusing to submit to the jury, as requested, any consideration of negligence on the part of the plaintiff.</p> <p>But independently of the question of negligence, the case should have been submitted to the jury to find if the damages were occasioned by want of fences.</p> <p>Ought not the court, however, to have complied with the defendant’s first request ? Our statute differs materially from that of most other states in that under it the liability is not an absolute one, but excepts all cases where' the absence of the fence is not the proximate cause of the injury. Proximate cause is “ a cause from which a man of ordinary experience and sagacity could foresee that the result might probably occur.” Shearm. & Redf. Negl. s. 10, and cases cited. Such is the practical construction of the courts. Bennett v. Lockwood, 20 Wend. 228, and cases passim.</p> <p>The damages were occasioned by want of fences, and there was no question for the jury except the question of damages. Gen. Sts. c. 28, ss. 47, 50; Holden-v. Rutland Burlington Railroad Co. 30 Vt. 297 ;• Hurd v. Rutland. & Burlington Railroad Co. 25 Vt. 116.</p> <p>There was nothing in the case calling for a charge on the subject of negligence. The defendant ran its trains without right, in defiance of law, and took its risk. The statute fixes liability for damages done under such circumstances to cattle rightfully in the adjoining fields. Sections 47, 50, 51, c. 28, Gen. Sts., are not inconsistent, and there is no ground for the claim that section 47 does not apply.' The railroad law of 1872 expressly, though probably needlessly, specified that railroad companies organized thereunder should be subject to all the duties, liabilities, and provisions contained in chapter 28, or in any law of the State applicable to railroad companies. The amendment of 1874 has the same provision.</p>

<p>General Assumpsit. The plaintiff sought to recover the sum due on a promissory note whereby the defendant on March 8, 1871, promised to pay Helen Kenyon, or bearer, $200, on demand, with interest, and whereon were indorsements of $75 on April 20, 1875, and $40 on July 10, $30 on September 20, and $35 on November 27, 1876. The case was referred, and the referee reported that the note was written and signed on the day of its date, by the defendant’s daughter, at the request of the defendant, who could not read nor write, and by the daughter delivered to the payee, of whom the defendant then borrowed a sum of money. The defendant offered evidence before the referee tending to prove that he borrowed of the payee only $100, and directed his daughter to draw the note for that sum, and understood that it was drawn for that sum, and did not learn until June or July, 1876, that it was drawn for a larger sum, and that his daughter made a mistake in the sum by copying from an old note and from a form book in which the sum was the sum for which the note was actually drawn. The plaintiff objected to the introduction of such evidence, but it was received, to which the plaintiff excepted. The plaintiff offered evidence to prove that the note was drawn for the proper sum. The referee found that the defendant borrowed of the payee fslOO only, and that the note was intended to be and should have been drawn for that sum ; that the plaintiff intermarried with the payee in November, 1874, when the note was past due ; and that the note then became the plaintiff’s property, subject to all defenses that would have been available against the payee. The referee further found that the original consideration of the note had been more than paid, and that the defendant should recover his cost; but that if the court should be of opinion that the evidence tending to vary the terms of the note was improperly admitted, the sum due on the note was $95.48. The plaintiff excepted to the report, for that, among other things, the referee admitted evidence to vary the terms of the note.</p> <p>At the April Term, 1879, the court, Red field, J., presiding, rendered judgment, pro forma, on the report for the plaintiff for $95.48, and costs ; to which the defendant excepted.</p> <p>Referees may decide according to the principles of equity. Uazeltine v. Smith, 3 Vt. 535; Johns v. Stevens, 3 Vt. 308 ; White v. White, 21 Vt. 255. The report is conclusive. White v. White, supra; Roth v. Colvin, 32 Vt. 125, 133; Rddy v. Sprague, 10 Vt. 216.</p> <p>It was competent for the defendant to show any or all of the facts relating to the transaction in which the note was given. Under a reference the whole subject is open to inquiry, without regard to particular issues or pleadings. Cook v. Carpenter, 34 Vt. 121; Glifford v. Richardson, 18 Vt. 620, and other cases.</p> <p>The defendant cannot have the alleged mistake corrected in an action at law ; he must resort to chancery. It is not competent to show that the note was drawn for too large a sum as showing failure or want of consideration. Evidence to prove that would prove a different contract. See Downs v. Webster, Brayt. 79 ; McDuffie v. Magoon, 26 Vt. 618; Bradley v. Anderson, 5 Vt. 162. And see cases passim as to the introduction of parol evidence to vary a written instrument.</p>

Trover for a quantity of hay, brought to the City Court of Burlington. Plea, general issue, and trial by the court, Haselton, J. It appeared that on April 1, 1879, the defendant, acting under a a written agreement before then .made between him and the plaintiff Philip, entered into possession of a farm in Jericho that was then the sole and separate property of the plaintiff Judith, wife of Philip.

<p> Sheriff’s Sale. Evidence. Agency. Sales. Change of Possession, </p> <p>A sheriff’s sale made on a valid execution in substantial compliance with statutory requirements, will confer the debtor’s title on the purchaser, without regard to the correctness of the officer’s return on the execution. Thus, in trespass by the purchaser against the execution debtor, for retaking the property after sale, it appeared that the sale was so made, but that the return contained no recital of a demand on the debtor before levy, nor of advertisement at a public place, nor that the sale was made at such a place. Held, that the purchaser acquired title as against the debtor. .</p> <p>The defence was that defendant retook the property in question, which consisted of a sleigh, as the property of L., therein acting as L’s agent. Defendant and L. testified that defendant bought the sleigh for L., and that it was L’s property when attached and sold. Plaintiff introduced evidence tending to prove that when the sleigh was attached defendant said he bought it for himself, and afterwards sold it to L. ; and ■ the court found in accordance with plaintiff’s evidence. To that finding the defendant excepted, for that there was no evidence of the fact so found. Held, that, as L. was not a party, and as defendant was setting up L’s title in his own behalf, the evidence of defendant’s declarations was not within the rule excluding evidence of the declarations of an agent made after accomplishment of the purpose of his agency, nor within the rule excluding the declarations of a former owner in derogation of the title of his grantee ; and that the finding was therefore without error.</p> <p>L. owned and had exclusive possession of the premises where she lived, and defendant lived with her and worked for her for his board, carrying on land, doing errands, chores, &c. When he bought the sleigh it was brought to L’s premises, and put under a shed thereon, where it was afterwards kept, except when in use, until it was attached. After it was brought there defendant used it once or twice, but with L’s horse and harness, and on L’s business, and L. went with him therein several times. Held, that as, under the circumstances, q. v., it was to be inferred that the sale to L. was immediately after the sleigh was taken to her premises, there was a sufficient change of possession to protect the sleigh from attachment as the property of defendant.</p>

<p>Case for injury on a highway. Plea, general issue, and trial by jury, April Term, 1879, Powers, J., presiding.</p> <p>The notice of injury, which was received in evidence subject to such objection as might be made thereto in view of the facts to be shown, stated that the plaintiff received the injury in question on April 22, 1878, while travelling with his team on a highway in the city of Burlington, known as Winooski avenue, and proceeded, so far as material, as follows :</p> <p>The place upon said highway where I received said injuries is in and upon that portion of said highway which lies between the dwelling houses of Joseph Dupau and John Dupau, and at a point in said portion of said highway northerly from and opposite the brick-yard of Francis Leclair. . . . The said portion of said highway where I received said injuries was at the time of receiving the same insufficient and out of repair, as aforesaid, by reason and in consequence of a deep rut or hole in the travelled track thereof 200 feet in length and twelve inches deep, and from six to ten inches in width, as near as I could ascertain. . . . The parts of my body injured as aforesaid are as follows, to wit: both legs, ankles and feet, spine, shoulders, ribs, collar bones, sternum, and lungs . . . The extent of the aforesaid injuries, as far as can be now ascertained, is as follows, to wit: the soft parts and ligaments of the legs and feet were and are contused, lacerated, and crushed ; four of my ribs upon my left side are and were fractured and broken, my collar bone of the left shoulder fractured, and the spine and sternum wrenched, bent, compressed and twisted, and a general severe concussion and shock to my whole system, the effect upon my health being to perfectly and completely prostrate and disable me, and confine me to my bed.</p> <p>The plaintiff’s evidence tended to prove that the brick-yard mentioned in the notice was situated on the south side of the highway on a lot which was owned and occupied by Francis Leclair and enclosed on the east and west by fences running at right angles with the highway; that the entire lot had a frontage on the highway of four hundred and sixty-one feet, two hundred feet of which were the frontage of the brick-yard — that part of the entire lot that was levelled off and used for making brick, and on which were the kiln and machinery used therein; that the distance between the dwelling houses mentioned in the notice was six hundred and seventy-four feet; that the brick-yard was the most prominent object between them; that the rut that caused the injury in question extended in the travelled part of the highway along the entire front of the brick-yard, and, at the place where the accident happened, which was opposite and north of the brickyard, was eleven and three-fourths inches deep and ten inches wide at the top ; that there was also another rut in the same part of the highway, “ the mate ” to the one referred to, of the same length, but of less depth ; that there was also another set of ruts in the same locality, four to six inches deep, but of unascertained length and width, that were made by carriages in “ straddling” the rut complained of. It further appeared from the plaintiff’s evidence that there was a house on the south side of the highway three rods nearer the place of. the accident than the house of John Dupau; that the barn of Joseph Dupau was several rods nearer the place of the accident than his house, and was on the border of the highway ; that there was a stone culvert running under the highway at a point much nearer the place of accident than either of the houses mentioned in the notice; that there were three private roads leading from the highway into the brick-yard, also much nearer than the houses ; and that the plaintiff was frequently over the highway, and was familiar with it and with the different objects- along its course. It appeared that the principal permanent injury complained of was a thickening of the pleura or “ lining membrane of the chest and lungs ”, and an adhesion thereof to the lungs and walls of the chest, the result of inflammation caused by the injury in question, which restricted and impaired the action of the lungs, producing irritation, and a cough ; but it did not appear that there was any injury to the substance of the lungs themselves. The plaintiff’s evidence tended to show that on examination three days after the accident, it appeared that the pleura was injured. Dr. Crampton, one of the medical men introduced by the plaintiff, testified that, in his opinion, the inflammation of the pleura was caused by the fracture of a rib.</p> <p>The defendant, after the testimony was all in, requested the court to rule that the notice was insufficient, for that it did not designate the place or rut where the injury was received, with the requisite particularity. The court refused so to do, found the facts relative thereto to be as “ claimed by the plaintiff”, and ruled that the notice was sufficient; to which the defendant excepted.</p> <p>The defendant requested the court to charge that on the evidence, including the notice of injury, the plaintiff was not entitled to recover for any injury to the pleura ; but the court refused so to charge; and to that refusal the defendant excepted.</p> <p>The defendant also requested the court to charge that it must be found that the defect in the highway caused the accident; that no want of care on the plaintiff’s part contributed to it; that if want of care on his part contributed, however slightly, he could not recover, even though the accident would have happened if his fault had not contributed to it; that if the road was out of repair and unsafe for travel, and the plaintiff knew it, he was bound to exercise greater care and prudence than otherwise would have been required of him. The court complied with those requests, but, in charging as to the degree of care the plaintiff was bound to use, made use of the following language :</p> <p>“ Was the plaintiff, on the occasion of his passing over this road on the 22d day of April, 1878, in the exercise of ordinary care and prudence ? This expression, ordinary care, as you notice, excludes the idea, of extraordinary care, and excludes the idea of carelessness. The traveller is not bound to exercise the most vigilant care that the most vigilant man would have exercised under similar circumstances. The law does not require that extreme degree of diligence on his part, nor does it suffer him to be guilty of carelessness, the other extreme ; but it is a mean degree of care. It is that measure of care and attention to his team, to his mode of driving, to the road itself, that persons of ordinary care, men generally, ordinary prudent men would and do exercise under similar circumstances. That is all the diligence that the law requires of the traveller in answering this part of the case. Now, on this occasion, applying that rule to the plaintiff, . . . was he exercising such attention, such care in respect to his driving, ... as men generally, under the same circumstances, would have exercised ? If he did on that occasion what any ordinary man, — not what a careless man, not what a man of extraordinaiy caution would do, but if he did what any man of ordinary care and attention would have done under the same circumstances, then he is not guilty of any want of ordinary care that deprives him of the right to recover. . . . Would a man of ordinary care have done as he did, riding as he was ? . . . This, gentlemen, is wholly a question for you, . . . whether there is anything seen or disclosed . . . that is out of the usual order of ordinary care as observed by men generally. ... If you find he was exercising such a measure of care as men ordinarily, under such circumstances, would have exercised, why, then that part of the case is made out by the plaintiff.”</p> <p>To that part of the charge wherein the jury were instructed as to the care required and as to the meaning of the term, “ ordinary care,” therein used, the defendant excepted.</p> <p>The notice was insufficient in that it did not point as directly and plainly to the place .as was reasonably practicable, and did not designate the place in the rut. Low v. Fairfield, 46 Vt. 425, 433 ; Babcock v. Guilford, 47 Vt. 519, 523 ; Heed v. Calais, 48 Vt. 7; Bean v. Concord, 48 Vt. 30 ; Purrington v. Warren, 49 Vt. 19. The matter is revisable in this court. Purrington v. Warren, supra.</p> <p>The notice was not such as to entitle the plaintiff to recover for the injury to the pleura. An injury to one part of the body may from sympathy or juxtaposition affect another part, but it is not correct to say that the part so affected was injured; and if anything is claimed from such condition, the real injury and its effect on the adjacent parts should be stated in the notice.</p> <p>The charge as to the care and prudence required was erroneous. The rule recognized by the civil law writers, indorsed by the English judges, and established as law in this State is, that the plaintiff in such cases must have conducted himself like a prudent man. It was the duty of the court, if it discussed the meaning of terms, to define the degree of care requisite, in accordance with the law. Although the exception was only to the charge given, it involved non-compliance with the request; and the charge was not a compliance. Story Bailments, s. 13; Red field, C. J., in Briggs v. Taylor, 28 Vt. 180 ; Folsom v. Underhill, 36 Vt. 580 ; Buff v. Budd, 3 Brod. & B. 177 ; Riley v. Horne, 5 Bing. 217 ; Batson v. Donovan, 5 B. & Aid. 32; Wyld v. Pickford, 8 M. & W. 442 ; Hunter v. Debbin, 2 Q. B. 644; Wilson v. Brett, 11 M. & W. 113; Austin v. Manchester Railroad, 11 Eng. L. & Eq. 513 ; Steamboat New World v. King, 16 How. 469, 474.</p> <p>The court found the facts as to the notice to be as the plaintiff claimed on all the evidence, and held the notice sufficient. It does not appear how the plaintiff claimed them to be, so there is nothing on which to revise the decision. But, if it be said the finding was of facts such as the evidence tended to show, and the court held the notice sufficient on- those facts, the only question here is, whether the court erred in so deciding, for the finding is conclusive as to questions of fact. Pomfret v. Barnard, 44 Vt. 527; Ranney v. Sheffield, 49 Vt. 191. The notice was sufficiently definite. The rut was co-extensive with the frontage of the brickyard, and was equally bad throughout the whole distance. The brick-yard was the most conspicuous object in the vicinity, and the most natural for reference. The question is not whether the notice might have been more definite, but whether it was definite to a reasonable degree. Ranney v. Sheffield, supra.</p> <p>The court properly refused to comply with the defendant’s request as to the injury to the pleura. The injury thereto was produced by inflammation caused by the injuries inflicted on the happening of the accident. It would, therefore, have been error to comply, for the plaintiff was entitled to recover for injury resulting from inflammation. But it may be said that the object of the request was to raise the question whether, as the pleura was not specified in the notice, and as there was evidence that the pleura was found to be injured within three days of the accident, and to have been injured by reason of the injury to the rib, the plaintiff was entitled to recover at all therefor, whatever caused it. But the witness did not say whether the injury was the direct result of the breaking of the rib, or the result of inflammation. If the injury was caused wholly or partly by inflammation, the plaintiff could recover, without question. Hence, the request was for too much, and on that ground was rightly refused. Vaughan v. Porter, 16 Vt. 266; Underwood v. Hart, 23 Vt. 120; Bates v. Cilley, 47 Vt. 1. But, on proper construction, the notice covered that injury, whether the direct result of the accident, or the result of subsequent inflammation. The lungs were alleged to be injured, and the pleura is the covering of the lungs.</p> <p>The charge as to the measure of care, and defining the term, ordinary care, was correct. The definition follows that given by Isham, J., in Hyde v. Jamaica, 27 Vt. 443, and is in accordance with that adopted by the courts in cases of this class. See Folsom v. Underhill, 36 Vt. 580 ; Angell & D. Highways, s. 290 ; 2 Hilliard Torts, 392 ; Shearm. & Redf. Negl. s. 20; Farrar v. Green, 32 Me. 574; Ernst v. Hudson River Railroad, 35 N. Y. 9, 27 ; Brown v. Lynn, 31 Pa. St. 510 ; State v. Manchester £ Lawrence Railroad, 52 N. H. 528; Cleaveland, Qolumbus Cincinnati Railroad Co. v. Terry, 8 Ohio St. 570, 581. It was correct as to the measure of care. The plaintiff was bound to the exercise of ordinary care as defined. Kelsey v. Glover, 15 Vt. 708; Allen v. Hancock, 16 Vt. 230; Hodge v. Bennington, 43 Vt. 450, 459 ; Fletcher v. Barnet, 43 Vt. 192; Walker v. Westfield, 39 Vt. 246 ; Fallon v. Boston, 3 Allen, 39 ; Smith v. Lowell, 6 Allen, 39 ; Butterfield v. Forrester, 11 East, 60 ; Beers v. Housatonic Railroad Co. 19 Conn. 566. The term, ordinary care, is used in our courts as synonymous with the term, reasonable care, as used by the courts of England. Fletcher v. Boston Maine Railroad, 1 Allen, 9.</p>

<p>This was a complaint for bastardy. Plea, not guilty, and trial by jury, September Term, 1879, Powers, J., presiding.</p> <p>The plaintiff testified that she had been delivered of a child that was begotten by the defendant. The defendant introduced evidence tending to show that the child was begotten by Charles E. Osgood, introducing, among other things, several letters to Charles E. that were written by the plaintiff a few weeks after she became pregnant, and other genuine specimens of the plaintiff’s handwriting. He also introduced several other letters purporting to have been written by the plaintiff to Charles E. that tended to show that Charles E. was the father of the child. ' Those letters the plaintiff denied writing; and much expert and other evidence relative to their genuineness was introduced on both sides. The plaintiff was called on by the defendant’s counsel in the presence of the jury to write sentences from the disputed letters. In rebuttal the plaintiff’s counsel offered in evidence an undated paper, in form a letter from the plaintiff to Charles E., which “had been used as a specimen of the plaintiff’s handwriting while examining some of the witnesses upon the question of the genuineness of the disputed letters”, and which was then treated by court and counsel, although it was never identified, as a genuine specimen of the plaintiff’s handwriting, counsel saying, “ I ask her [the plaintiff] to sit down and write the contents of one of the letters she wrote to Charlie, as near as she could get it, and in her own natural way.” The admission of the letter was objected to, but on grounds not involving the question of its authenticity. The objection was overruled, and the paper admitted ; to which the defendant excepted. The paper went to the jury with the other letters and specimens of handwriting without objection or question.</p> <p>The absence of testimony to show that the paper was written by the plaintiff, is, if the point is now available, ground for a new trial.</p> <p>The practice, in cases where the genuineness of handwriting is in dispute, of allowing the introduction of other writings made by the party whose writing is in question, for the sole purpose of comparison, is limited to such writings as were made in the natural course of things, and when there was no motive to disguise ; and is not extended to writings made under the supervision of counsel, after litigation has arisen, and for the sole purpose of being used as a standard. King v. Donahue, 110 Mass. 155; Keith v. Lathrop, 10 Cush. 453 ; Stanger v. Searle, 1 Esp. 14; Doe d. Perry v. Newton, 5 A. & E. 514; Doe d. Mudd v. Suckermore, 5 A. & E. 703.</p> <p>The attempt to predicate error upon the admission of the paper for that no evidence was introduced to show that it was written' by the plaintiff, cannot prevail, because it was treated as genuine, and because no objection was made to it on the ground that it was not genuine. State v. Preston, 48 Vt. 12, and other cases.</p> <p>The exceptions do not disclose the ground of objection. Error is not to be presumed, but must affirmatively appear. Edgell v. Bennett, 7 Vt. 534, and cases passim.</p> <p>But if the ruling was erroneous, the excepting party could not have been harmed thereby. The paper had been used and treated as genuine, and went to the jury without objection or question. The objection was thereby waived. This court will not reverse a judgment because of errors which have not harmed the excepting party. Sampson v. Warner, 48 Vt. 247, 257 ; Warden v. Warden, 22 Vt. 564.</p>

<p>Indictment for keeping a house of ill-fame, brought at the September Term, 1879. The respondent pleaded that the names of three of the persons who acted as the grand jury by which the indictment was found, residents of the city of Burlington, and summoned as such, were not drawn out of the box containing the names of the persons nominated, but were drawn by the sheriff “ by selecting from a package of numbered cards presented to him by the city clerk of said city three certain numbers seen by said sheriff at the time of said drawing, which numbers so drawn corresponded with the numbers set opposite the names ” of said three persons in the public records of the proceedings of the board of aldermen of said city, and “ not drawn or selected in any other way.” The State replied that before said drawing the names of the persons nominated and agreed upon to serve as grand jurors were duly entered in said records with a particular number to each name ; that said numbers were written by the city clerk on separate pieces of paper, which were put into a box appropriate for the purpose of keeping the names of grand jurors, which was kept in his office for that purpose ; that among those names were the names of the three persons in the plea mentioned; that “ on such drawing ” the sheriff repaired to said clerk’s office, where the clerk, in his presence and by his consent and direction, took from said box all said pieces of paper, and laid them on a table before the sheriff, with the numbers on the under side and so that they were concealed from the sheriff, and the sheriff “ selected by lot from all such pieces of paper three of said pieces which bore the several numbers corresponding to the names ” of said three persons; that the sheriff thereupon, without knowing what names such numbers indicated, verified them and ascertained the names thereby designated by examination of the records, and summoned said three persons. The respondent demurred. The court, Powers, J., presiding, overruled the demurrer, and rendered judgment of respondeat ouster ; to which the respondent excepted.</p> <p>The respondent then pleaded not guilty, and a trial was had by jury. The indictment charged the commission of the offense from July 1, 1877, to the time of the finding of the indictment on September 24, 1879. The State offered evidence “ tending to establish the charge of the indictment prior to September 30, 1878.” The respondent objected to its admission, for that, at the September Term, 1878, she was put upon trial before a jury on a plea of not guilty to an information charging the same offense, as committed between January 5 and September 30, 1878, and that, after evidence had been introduced, “ the court permitted ” an entry of nolle prosequi. The court found the facts to be as indicated by the objection, but ruled that those proceedings did not preclude proof of facts tending to show the commission of acts within the time covered by that information. To that ruling the respondent excepted.</p> <p>Yerdict of guilty.</p> <p>The drawing of names was not in compliance with the statute ; and the plea was good. Gen. Sts. c. 15, s. 90, c, 37, s. 5 ; Mann v. Fairlee, 44 Vt. 672.</p> <p>After the jury have been sworn, &c., a nolle prosequi can be entered only by leave of court. State v. I. S. S. 1 Tyl. 178 ; State v. Rowe, 12 Vt. 93. What would be the effect of such a proceeding on a subsequent prosecution for the same offense, has not been decided in this State. Here, it is to be noticed, the court permitted the entry to be made. By that it is to be understood that the court did not volunteer to object. The respondent was “ put in jeopardy.” 1 Whart. Crim. Law, ss. 574-591. The withdrawal of a criminal case on trial by entry of a nolle prosequi, though by consent of the court, operates as an acquittal. 1 Whart. Crim. Law, s. 513 ; Freem. Judgments, s. 318 ; Mount v. State, 14 Ohio, 295 ; State v. McKee, 1 Bailey, 651; People v. Barrett, 2 Caines, 304; United States v. Shoemaker, 2 McLean, 114 ; United Stales v. Barring, 4 Cranch C. C. 465 ; Commonwealth v. Cook, 6 S. & R. 577 ; Wright v. State, 5 Ind. 290 ; Weinzorpflin v. State, 7 Blackf. 186 ; Reynolds v. State, 3 Kelly, 53 ; Klock v. People, 2 Parker C. C. 676 ; Morgan v. State, 13 Ind. 215.</p> <p>The plea in abatement is insufficient, because it does not state that the jurors participated in the deliberations and finding of the grand jury, nor that their concurrence was necessary to the finding of a true bill. Gen. Sts. c. 37, ss. 14,15 ; State v. Symonds, 36 Me. 128, and cases passim. The replication shows that the names were selected and drawn in compliance with the provisions of the statute. But the statute is directory. Gen. Sts. c. 15, s. 90, c. 37, ss. 5-7 ; State v. Davis, 14 La. An. 678. Compliance with its spirit is all that is required. People v. Rodriguez, 10 Cal. 50 ; Kilral v. State, 9 Ela. 9; State v. Adams, 20 Iowa, 486. Any irregularity in the drawing of a grand jury will not vitiate the proceedings, if there be no fraud. Commonwealth v. Thompson, 4 Leigh, 667 ; Baldwin's Case, 2 Tyl. 473.</p> <p>The former proceedings would have constituted no bar had they been pleaded; and the objection was properly overruled. Train & H. Pre'c. Ind. 484, 485 ; 1 Russ. Crimes, ss. 836, 837, note. The objection came too late. State v Woodruff, 2 Day, 504. The respondent was not put in jeopardy in the former proceedings. Twice put in jeopardy means, “ twice tried for the same offense.” People v. Goodwin, 18 Johns. 187 ; 1 Whart. Crim. Law, s. 573, et seq. If the nolle prosequi could be considered as an acquittal, the case does not show such an acquittal as would bar a trial on a new indictment for the same offense under chapter 111, Gen. Sts. The offense must be the same in law and in fact. Commonwealth v. Curtis, Thacher Crim. Cas. 206. Here it is not the same “ in law and in fact.” 1 Ben. Lead. Cas. 532, et seq.; Commonwealth v. Clair, 7 4-Hen, 525; Commonwealth v. Roly, 12 Pick. 496. Whether the court could allow a nolle prosequi to be entered, cannot be questioned, unless it amounted to an acquittal, and, if it did, it should have been pleaded. But the court had a right to allow such an entry at any time before the case was submitted. If the court had such right, such entry would be no bar to a new indictment for the same offense. Commonwealth v. Wheeler, 2 Mass. 172; Commonwealth v. Kimball, 7 Gray, 328; State v. Thornton, 13 Ired. 257; State v. I. S. S., 1 Tyl. 178 ; State v. Roe, 12 Vt. 93 ; Commonwealth v. Gould, 12 Gray, 173; State v. Hodgkins, 42 N. H. 474. If the court had not such power, the respondent could take advantage of its error by exceptions to its ruling only. Having taken no exception, she is concluded. 1 Bishop Crim. Law, s. 1041, et seq. The court can in its discretion discharge a jury at any time during trial, and if done before verdict, it does not amount to an acquittal. O’Brian v. Commonwealth, 6 Bush, 563; State v. Woodruff, supra ; Commonwealth v. Purchase, 2 Pick. 520; Commonwealth v. Bowden, 9 Mass. 494 ; United States v. Perez, 9 Wheat. 579.</p>

Trustee Process. A commissioner was appointed who reported the following facts: In April, 1876, the defendant brought an action against the trustee for false imprisonment.

Book Account. The plaintiff was described in the writ as Mrs. Sarah Ballard. The auditor reported in substance the following facts : On May 1, 1876, the plaintiff agreed with James Meyers, the agent of the defendant in such behalf, that her son, a minor, should work in the defendant’s office at the rate of $6 per week, until such time as he should begin to keep the defendant’s books, and that after that time he should work at the rate of $10 per week.

<p> Evidence. Hearsay. Declaration of Deceased Person as to Ancient Private Boundary. Presumption. Burden of Proof. </p> <p>In trespass qua. clau. question was in regard to the location of the division line between plaintiff’s and defendant’s land. Plaintiff contended that it ran according to an ancient survey; defendant, that it ran by a certain stone corner. It appeared that plaintiff had been in possession on one side since 1824, under claim of ownership, and that A., through whom defendant claimed, also went into possession in 1824, and continued therein, under like claim, until his death in 1874. Plaintiff, to prove that the true line was in accordance with the survey, testified that the line was surveyed in 1831, and that the line then surveyed was acquiesced in until A’s death. Defendant, “ for the purpose of establishing his line”, was allowed to introduce evidence tending to prove that A., while in life, made declarations tending to show that the line ran by the stone corner. Held, admissible, to show that A. was not acquiescing at the times when the declarations were said to have been made, but not to show where the line in fact was; and not admissible as the declaration of a deceased person in regard to an ancient private boundary, for that the declarant was not without interest to misrepresent.</p> <p>Plaintiff requested the court to charge that the line for which he contended had been acquiesced in for fifteen years, and had become the true line, and that any different line, unless “ claimed for fifteen years, would not defeat the former line.” The court charged that where adjoining proprietors treated a line as the true line for fifteen years, the line would be a legal division. Held, questionable if, although the rule as to establishment of lines by acquiescence was correctly stated, plaintiff was not entitled, in answer to his request, to a charge stating further that if plaintiff’s evidence proved the establishment of the line for which he contended by fifteen years’ acquiescence following 1831, the burden would be on defendant to show subsequent establishment of the line for which he contended.</p>

<p> Contract. Common Carrier. JEvidenee. </p> <p>In the absence of special contract, a common carrier receiving a parcel marked to a point beyond its route, but having no special business relationship with the carrier j on the connecting line, is responsible, as such carrier, only for safe and seasonable delivery at the end of its own route to the carrier next in the line of transportation.</p> <p>In case for money delivered to the agent of an express company to be sent to a place beyond the route of the company, it appeared that plaintiff paid charges through, and received a receipt for the money to be sent containing a memorandum of such! payment. Held, that on the facts, q. v., there was not a special contract to carry to destination.</p> <p>The receipt contained a clause limiting the liability of the company to the risks of carriage to the end of its route. The consignor could not read, and the agent read the principal part of the receipt to him, but did not read that clause. Held, that as'that clause was expressive only of the company’s liability under the law, the omission to read it was no fraud on the consignor.</p> <p>Such a receipt, like any simple receipt, may be explained by parol evidence.</p>

<p>Continuance for Notice. Recognizance for Review. (Jen. Sts. c. 31, ss. 50, 52.</p> <p>The requirement of continuance for notice and recognizance for review, under sections 50, 52, c. 81, Gen. Sts. is imperative; and, when a judgment rendered in a cause where that requirement was not complied with is sought to be set aside by audita querela, the record of the justice is conclusive in regard thereto — the court will not presume compliance nor find it from evidence aliunde.</p>

Replevin for a mare. Plea, general issue. Trial by the court, Royce, J., presiding, at the September Term, 1879, on an agreed statement of facts. Held: when it was voted to hire money for that purpose, and a committee was elected to superintend the building and to look up the list of the district.

Declaration in general assumpsit. Pleas, general issue and set-off. Trial by the court, ¡September Term, 1879, Royce, J., presiding. The plaintiff sought to recover $84.56, with $26.72 interest thereon, paid the testator by mistake in figuring interest on a note for $500. The defendant sought to apply in set-off a balance of $34.24, with interest thereon, due on a note for $234.24.

<p> Evidence. Practice. Charge to Jury. Agency coupled with Interest. Conditional Sale. Alienage as Disqualification of Juror. New Trials. </p> <p>In replevin against an officer for goods by him attached as tbe property of D. on writs issued at suit of various persons, plaintiff made claim thereto as a purchaser from D’s assignee in bankruptcy, and introduced evidence — the testimony of D., with other evidence — tending to prove that although D. was in possession when the goods were attached he did not own them, but was in possession as plaintiff’s agent. Defendant contended that D. purchased and owned the goods, and offered in evidence a copy of the report of the register in bankruptcy and of the judgment thereon, as tending to show that D. had money with which to make the purchase. Held, that as plaintiff was not party nor privy to the proceedings in bankruptcy, and was therefore not bound thereby, and as the report did not impeach D., the copies were inadmissible.</p> <p>Certain of the goods in question were purchased by D. and added to the stock, after the sale by tbe assignee. Question was whether he purchased them as plaintiff’s agent and paid for them with plaintiff’s money, or on his own account and with his own money. Defendant offered in evidence an invoice of the goods sold by the assignee, made at the time of the sale, to enable the jury, by using it in connection with the testimony of T., who wrote a small part of it and who examined, appraised, and called off goods while another wrote the rest of it, to separate the subsequently-purchased goods from the others; but it appeared that it did not enable T. to so separate the goods. Held, not admissible as a memorandum made by T. and used by him to refresh his memory, and, as it didnot enable him to separate the goods, not admissible for the purpose indicated in the offer.</p> <p>The court in charging the jury stated the evidence of one party more fully than that of the other, but withdrew none of the evidence from the consideration of the jury. Beld, that error was not predicable of such a charge.</p> <p>Plaintiff conceded that after he purchased the goods he arranged with D. that D. should take possession of and sell them for him and pay him the proceeds thereof till he should receive in the aggregate what he paid for them with interest thereon, when whatever might remain of money or goods should be D’s. Eeld, consistent with the idea of an agency coupled with an interest as well as with that of a conditional sale.</p> <p>The court charged that, to recover, plaintiff would have to prove that he owned the goods. It afterwards charged that if it should appear that any of the goods were so purchased as to be subject to attachment as D’s property it would be the duty of the jury to separate them in their verdict. Eeld, no error.</p> <p>Eeld, that if D. was in possession under an agency coupled with an interest, plaintiif was entitled to recover, but if as conditional purchaser, there being no recorded memorandum, the goods were liable to attachment as D’s property, and plaintiff could not recover.</p> <p>The charge relative to the distinction between such an agency and such a sale was by way of supposed illustrative cases. The legal inferences to be drawn from such illustrations being correct, it was held that the case should not be revised for error therein.</p> <p>But quaere whether such is a proper way to charge.</p> <p>An alien is not a legally qualified juror, and if one sit in any cause, the verdict will be set aside on motion, if the disqualification be not known to the moving party until after verdict.</p> <p>Verdict was for plaintiff. Defendant filed a petition for a new trial, alleging the discovery among the papers of the register of the Court of Bankruptcy of certain receipts from plaintiff to D. tending to show that the goods belonged to D. It appeared that the parties plaintiff in the suits in which defendant made the attachments knew such papers were produced before the register; that before trial they procured such papers filed in the bankruptcy proceedings as were in the district clerk’s office, and, not finding the receipts among them, inquired of the register about them; that the register told them he returned all papers to the clerk’s office; and that the parties, believing that the receipts had been returned to D., went to trial without further search for them. Eeld, that there was a want of diligence in searching for the receipts, and that a new trial should not be granted.</p>

<p> Bills and Notes. Evidence. </p> <p>In assumpsit by tbe bolder of a negotiable promissory note against the maker, it was held, that on the evidence, q. v., it did not so conclusively appear that the holder took the note in good faith and without notice of defence thereto that defendant had no right to go to the jury on that question.</p>

<p> Promissory Note. Parties. </p> <p>In general assumpsit with a count on a negotiable promissory note alleged to have been executed and delivered by defendants to W. and by W. indorsed for value to plaintiff, it appeared that the note was not indorsed to plaintiff, but to other parties, but plaintiff testified that he owned and had the note when the suit was brought, and thereafter, and it appeared that the note in question was one of four, three of which defendants had paid to plaintiff, and that before suit brought defendants offered to pay “the plaintiff $-on the note in suit.” Held, that he could not maintain the action on the note, as the note had not been transferred to him, nor on a promise to pay to him, as none was either alleged or proved ; and that the production of the note on trial was not sufficient evidence of title to enable plaintiff to recover in disregard of the indorsements.</p>

<p>Grand Juror’s Complaint. Gen. Sts. c. 15, s. 87. Pleading. Variance. Practice. Specification. Discretion. Waiver.</p> <p>A grand juror’s complaint was in usual form except that the grand juror’s name was omitted from the hody of the complaint, and appeared only at the end, by way of official signature thereto. Held, that as it appeared to be addressed, &c., by a grand juror “ under his oath of office and official signature”, as required by s. 87, c. 15, Gen. Sts., it was sufficient.</p> <p>The complaint, which was under s. 9, c. 94, Gen. Sts., for selling, &c., alleged that on \ May 31, the respondent “was once before convicted of selling”, &c. The State offered in evidence a copy of a record of a former conviction on May 81. Held, that the allegation was of a conviction on May 31, and that there was no variance.</p> <p>The respondent moved for a specification, and one was furnished. He then objected to it as too indefinite, but the court adjudged it sufficient. Held, matter of discretion and not revisable.</p> <p>Semble, however, that the specification, which was of “ selling, furnishing, and giving away intoxicating liquor five different and distinct times on each and every successive day of each and every successive month ” of certain years “to each and every person” whose name was appended thereto, was not such as should have been furnished.</p> <p>The jurors did not take the oath prescribed to be administered in criminal causes, but the oath prescribed in civil causes was administered to them at the beginning of the term. The respondent’s counsel was not aware of the omission until some progress had been made in the trial; and the respondent was not present at any part of the trial, and had no knowledge of the omission. The respondent moved to set the verdict aside. Held, no waiver in proceeding with the trial.</p>

<p> Contract. Fraud. Rescission. Evidence. Practice. </p> <p>Assumpsit will lie after rescission of contract of sale for money paid for property the purchase of which was induced by fraud, and any legitimate evidence tending to prove that the purchase was so induced, is material and admissible therein. Thus: in assumpsit to recover money paid for promissory notes that plaintiffs were alleged to have been so induced to purchase, plaintiffs were permitted to introduce evidence tending to prove that defendant, to induce plaintiffs to purchase, represented that the notes were secured by mortgage on certain land, that he had seen the land and the record of the title thereof, that there was no other mortgage or claim on the land, that the land was ample security, and that the notes were good and all right. The land was incumbered, and defendant knew it. Held, that although certain of those repesentations, as, e. g., that the notes were all right, were but the expression of opinion, and therefore not the basis of an action, they amounted, when taken together, to representations as to material matters of fact, and that the evidence thereof was, therefore, admissible,</p> <p>In such case the defrauded party is bound to rescind within a reasonable time after discovering the fraud, or after learning of some fact that should raise a suspicion of it — not within a reasonable time after mere acquisition of the means of so discovering or learning. Thus : defendant told plaintiffs they could verify his representations by inquiring of certain persons who in fact knew their falsity. Plaintiffs made no inquiry, and did not discover the fraud until about two years thereafter, while searching the records preparatory to foreclosing the mortgage by which the notes were ostensibly secured. Held, that plaintiffs had a right to rely on defendant’s representations, and that the time within which rescission should be made began to run when the fraud was discovered, not when the representations were made.</p> <p>The evidence bearing on the question of whether plaintiffs exercised their right to rescind within a reasonable time was unconflicting. The court submitted that question to the jury. Held, not a mere question of law, but a question of mixed law and fact, and that there was no error.</p> <p>Plaintiffs discovered the fraud on February 6, a little more than two years after its perpetration. On the next day they went to consult their lawyer, who lived twelve miles distant. He was absent, and they did not see him; but they learned that he was to go near to their place of residence in a few days, and arranged to be notified when he went there. He went there on Febrnary 19 or 20, and plaintiffs then saw him, and on the same day offered to rescind. Held, that under the circumstances the offer was made within a reasonable time.</p> <p>It appeared that between the time of the sale of the notes and the time of the discovery of the fraud, the maker of the notes had a little property which was taken in attachment by other creditors. The court charged that if plaintiffs offered to return the notes in the same condition in which they took them, they did all that was necessary to place defendant in statu quo. Held, no error.</p> <p>Semble that if the purchaser do not affirm or acquiesce in the contract after discovering the fraud, mere delay in rescinding, for the purpose of deliberating, will not deprive him of the right to rescind, if during the delay the position of the vendor has not been altered.</p>

General Assumpsit. The defendant was therein summoned to answer to “ Gideon Williams and Sarah Jane Williams, wife of said Gideon,” &c., and the declaration was in common form on an indebtedness from him to them. The defendant demurred. At the April Term, 1879, the Court, Royce, J., presiding, sustained the demurrer, and adjudged the. declaration insufficient; to which the plaintiffs excepted.

<p>Petition for Foreclosure. It appeared from tbe petition, answers, and evidence that on April 14, 1875, Nelson H. Armington, jointly with his wife Fanny, was the owner of a life estate in a house and lot in the village of St. Albans, of the value of $3,000, or more, the remainder and inheritance in fee of which was vested in said Nelson’s two sons, Henry J. and J. Russell Armington. The property was then subject to a mortgage for $1,267.50, owned by Edson & Rand. On that day Russell mortgaged his moiety of the inheritance to Oscar A. Burton to secure the payment of his promissory notes of January 1, 1872, for $11,500. On July 13, Henry having become insolvent and gone into bankruptcy, Nelson purchased of his assignee in bankruptcy his moiety of the inheritance. On July 17, Nelson, being the owner of a life estate in the premises and of an undivided half thereof in fee subject to mortgage as aforesaid, executed a mortgage of that undivided half to Albert Sowles, to secure the payment of his two promissory notes for $300 each. On October 13, 1876, Nelson conveyed by quit-claim deed all his interest in the premises to said Burton, and Burton went into possession. Edson & Rand afterwards brought a suit to foreclose their mortgage to which Burton, Sowles, and said Russell and wife were made parties defendant. A decree pro eonfesso passbd against them all, but Burton redeemed by paying $1,688, the amount of the decree, before the expiration of the time for redemption. The petitioner, having become the owner of the notes and mortgage to Sowles, brought this petition, to which Burton, said Russell and his wife, and the administrator of said Nelson’s estate, said Nelson having died, were made parties defendant.</p> <p>The petition alleged that on October 13, when said Nelson conveyed to Burton, Burton and said Russell, in consideration thereof, agreed with said Nelson to pay the debt to Sowles and the debt to Edson & Rand and save him harmless therefrom ; that a writing was then drawn expressing, among other things, the agreement to pay the debt to Sowles, and delivered to said Nelson or to Russell for his benefit; that Burton paid the debt to Edson & Rand pursuant to that agreement; that on or about August 29, 1877, after the death of said Nelson, Russell surrendered that writing to Burton, pursuant to a secret agreement between them to defraud said Nelson’s heirs; and that Burton, to the same end and to avoid said agreement, entered into an agreement in writing with Sowles, who then held the notes and mortgage in suit, whereby it was agreed that Sowles should present the notes for allowance by the commissioners on said Nelson’s estate, and Burton should pay him whatever part thereof the commissioners would not allow. The petition prayed that the petitioner’s mortgage be declared to be a “ first and prior lien ” on the mortgaged premises, prior to the lien of Burton under his mortgage, that the petitionees be ordered to pay the notes thereby secured with interest, and for general relief.</p> <p>Burton and said Russell and wife answered, admitting the making of a written agreement with Sowles, but alleging that it was upon condition that Sowles should procure his notes to be allowed by the commissioners on the pstate of said Nelson, and that Sowles procured them to be allowed, but, before the commissioners reported,'sold his claim to the petitioner, who, with the approval of Sowles, procured the commissioners to reverse their decision ; admitting the giving to said Russell a writing agreeing to pay to him whatever the premises might sell for in excess of the incumbrance to Edson & Rand, but denying that they or either of them agreed to pay the Edson & Rand and the Sowles mortgages, and to save said Nelson harmless therefrom, and denying that any writing expressing such arrangement was executed at the time of the conveyance from said Nelson to Burton, or that said Russell surrendered any such writing, as in the petition alleged; admitting payment of the sum due on the mortgage to Edson & Rand, as alleged ; but alleging that payment was made to prevent a forfeiture, and insisting that the mortgage and mortgage notes thereby became the property of Burton, and that Burton became subrogated to the rights of Edson & Rand thereunder ; alleging that Burton paid said Nelson for the deed of October 13, the sum of $50 only, which was about the cost of foreclosure proceedings ; and insisting that the Edson & Rand mortgage should be declared to be a first lien on the mortgaged property. Hall made no answer.</p> <p>There was evidence on the part of both parties relative to the alleged agreement by Burton, evidence tending to prove that he agreed to pay the incumbrances, and evidence tending to prove that he did not. There was also evidence tending to prove that on January 8, 1878, Russell gave up the original agreement and received another from Burton, that Burton agreed with Sowles as alleged, that Sowles presented his claim before the commissioners on said Nelson’s estate, that the administrator resisted it, on the ground that Burton had assumed on sufficient consideration to pay it, and that it was disallowed by the commissioners.</p> <p>The cause was heard on petition, answer, and proofs, at the September Term, 1879, when the court, Royce, Chancellor, ordered that the petition be taken as confessed by Hall, and that the petitionees pay the sum due on the petitioner’s notes,' with interest, or be foreclosed of their right to one undivided half of the premises in question.</p> <p>Appeal by the petitionee Burton.</p> <p>The alleged agreement is made out. That is decisive, and entitles the petitioner to a decree for one .undivided half of the premises. Jones Mortgages, ss. 679, 680, 740 et seq.; Welch v. Beers, 8 Allen, 161; Drury v. Tremont Improvement Co. 13 Allen, 168; Marsh v. Pike, 1 Sandf. Ch. 210; Townsendv. Ward, 27 Conn. 610 ; Converse v. Cook, 8 Vt. 164 ; Marsh v. Pike, 10 Paige, 505 ; Jumel v. Jumel, 7 Paige, 591. If there was any doubt that Burton agreed to pay the petitioner’s mortgage notes, it appears that he agreed to pay the Edson & Rand mortgage, and has paid it. The petitioner is entitled to the decree prayed for.</p> <p>Burton now claims that he is absolved from his agreement with Sowles, because Sowles did not have his notes allowed against the estate. But if they had been allowed, it would not have benefited Burton, because if the estate had been compelled to pay, the administrator being subrogated to the rights of Sowles, might have brought a bill to foreclose.</p> <p>The sale of the premises by Nelson to Burton, there being a stipulation that Burton should pay the incumbrance, made Burton the principal and Nelson the surety for the mortgage debts, both at law and in equity. Jones Mortgages, ss. 741, 751.</p> <p>The petitioner is not entitled to relief on the ground of the alleged agreement. The agreement is not proved.</p> <p>In the absence of agreement to pay the mortgages, the petitioner is not entitled to the relief sought. The Bdson & Rand mortgage was a common burden. Burton and Sowles were equally bound to redeem. Burton, by redeeming, became subrogated to the rights of the mortgagee, as against Sowles. Gf-ates v. Adams, 24 Vt. 70 ; Admrs. of Lyman v. Little, 15 Vt. 576 ; Lyman v. Lyman, 32 Vt. 79 ; Hubbard v. Asautney Mill Lam Co. 20 Vt. 402 ; Lowner v. Wilson, 33 Vt. 1; Walker v. King, 44 Vt. 601. And that would be so, if Sowles had not been made a party in the foreclosure suit of Rand & Bdson. Walker v. King, supra; Walker v. King, 45 Vt. 525.</p> <p>The agreement with Sowles was valid and binding.</p>

<p>Appeal from the Court of Chancery.</p> <p>The orator made claim to a house which the defendant was on the point of removing, and filed a bill to enforce it, praying that the defendant be enjoined from making the contemplated removal. The condition of the bond was for the payment of “ all costs and damages ” that the defendant might sustain by reason of the granting and continuance of the injunction. Injunction was issued. On its dissolution, the bill having been dismissed with costs, question arose as to the damage sustained by the defendant by reason of its having been issued, and was referred to a master for ascertainment. The master found that at the time the injunction was served, the defendant had expended $10 in preparations to remove the house; that after the injunction was served he necessarily expended $67.38 in fixing a shed, that he might have a place to live in while building a new honse, which the defendant claimed he would not have built had he not been enjoined from removing the old one ; that the difference between the value of the house for purposes of removal, and its value after dissolution of the injunction was $312; that the orator expended for counsel fees and expenses in defending the suit brought by the orator, $188 in excess of what he had received on an execution issued against the orator ; and that the defendant should recover $577.38, the amount of those sums — subject to the opinion of the chancellor as to whether those items were properly recoverable on the bond. The master also found that the use of the house during the pendency of the injunction was $65.72, and that the house was not materially damaged by remaining in the condition it was in at the time the injunction was issued from that time to the dissolution of the injunction. The orator filed exceptions to the report. The court, Royce, Chancellor, ordered that the defendant recover as damages the item of $10, with $2.02 interest thereon, the item of $65.72, with $2.96 interest thereon, or in all the sum of $80.70, and $38.12, costs of the reference, and that the other items be disallowed.</p> <p>Appeal by the defendant.</p> <p>The damages must be the natural and proximate consequence of the injunction. Sedgw. Dam. 459, note ; Lowery v. Western Union Telegraph Qo. 60 N. Y. 198; Warner v. Bacon, 8 Gray, 397, 408 ; Sibley v. Hoar, 4 Gray, 222; Billings v. Billings, 10 Cush. 177.</p> <p>Counsel fees are not allowable. Bisbrow v. Grarcia, 52 N. Y. 654; Sturgis v. Knapp, 33 Yt. 486, 527, 528, and cases passim.</p> <p>The claim of $10 for money expended in preparing to remove the house, cannot be allowed. Sturgis v. Knapp, supra ; Sedgw Dam. 458, note.</p> <p>No questions arise except as to the item for decrease in value of the house, and the item for counsel fees, &c. The language of the bond is peculiar. The first item should be allowed. Bet-wards v. Bdwards, 31 Ill. 474; Mysenburg v. Schleiper, 48 Mo. 462. The second item should also be allowed. Sturgis v. Knapp, 33 Vt. -486 ; Aldrich v. Beynolds, 1 Barb. Ch. 613 ; Andrews v. Grlenville Woolen Qo. 50 N. Y. 282; Berry Bank v. Heath, 45 N. H. 524 ; Behrens v. McKinney, 23 Iowa, 333 ; Ah Thaie v. Quan Wan, 3 Cal. 216 ; Prader v. Grrim, 13 Cal. 585 ; By an v. Anderson, 25 Ill. 372 ; Brown v. Jones, 5 Nev. 374 ; Pargoud v. Morgan, 2 La. 100, and cases passim.</p> <p>The master in effect finds that the expenditures on the shed would not have been made but for the injunction.</p> <p>The master having mistaken neither the law nor the evidence, his finding should be held conclusive. Rowan v. State Bank, 45 Vt. 160, 195, and other cases.</p>

<p>This was a petition brought to the County Court at its February Term, 1879, praying that a cause wherein the petitioner was defendant and the petitionee was plaintiff be brought forward on the docket, that a judgment by default, rendered therein at the August Term of said court, 1878, be stricken off, and that the petitioner have leave to enter and defend. The petition alleged that the action was brought on a policy of insurance against fire issued by the petitioner to the petitioner’s ward to recover for an alleged loss, and that the petitioner had a good defense thereto in that the alleged burning was caused by the “ wilful and malicious act ” of the ward’s wife, and that the policy was issued before the petitionee was appointed. The petition was supported by the affidavit of the petitioner’s attorney, whereby it appeared that he received from the petitioner a copy of the writ in said cause, with instructions to defend. The petitionee moved to dismiss the petition. The court, Royce, J., presiding, found that the petitioner’s attorney “ neglected to appear and answer ” to said cause “ because he mistook the day ” on which the term at which the default occurred began, and supposed it began on the first Tuesday in September : and “ rendered judgment, pro forma, overruling the motion, ordering the cause to be brought forward, and the judgment to be vacated.</p> <p>Exceptions by the petitionee.</p> <p>The petitioner’s attorney admits that he received a copy of the writ from the petitioner, with instructions to defend. The case therefore comes within the rule in Babcock v. Brown, 25 Vt. 550, and Davison v. Heffron, 31 Vt. 687.</p> <p>The defense alleged is inadmissible. A trial will not be granted when the result will be the same. Mowing v. Manley, 49 N. Y. 192.</p> <p>contended that the County Court had by common law revisory power over its records to correct the same, when erroneous, and to set aside a default, and cited Mosseaux v. Brigham, 19 Vt. 457 ; Tudor v. Taylor, 26 Vt. 444; Scott v. Stewart, 5 Vt. 57; Adams v. Howard, 14 Vt. 158 ; and other cases. He contended also that section 7, c. 38, Gen. Sts. did not apply.</p>

<p>Trustee Process, appealed from the judgment of a justice of the peace. The cause was heard before the justice on April 8, 1878, and the claimant then entered and made claim to the fund. A commissioner was appointed, who reported the following facts:</p> <p>On or about April 1, 1877, the defendant, who owned a house in Rutland subject to, mortgage, made an arrangement with the claimant for no definite time whereby he was to see to the renting and repairing of the house, the paying of the taxes thereon, and the payment of a small sum that she owed, and was to reimburse himself the sums paid out therein out of the rent, and pay himself in the same way a debt of $25 that she then owed him. It was not then known who would have the premises. The defendant then went to St. Johnsbury, where she continued to reside, but before going she had some talk with the trustee about letting him take the house for the ensuing year at $10 per month, and referred him to the claimant. After her departure the trustee and the claimant met and agreed that the trustee should take the house for the year, and the trustee went into possession and occupied accordingly. The trustee paid all of the rent except rent to the amount of $46.54, which was unpaid when process was served in this action. The claimant paid out for taxes, repairs, &c., for the defendant so that at the end of the trustee’s term she owed him $46.20. The claimant notified the trustee before process was served as aforesaid, that he claimed the rent for his expenditures for repairs, &c., made on account of the defendant. The claimant continued to have charge of the defendant’s premises for a year after the expiration of the trustee’s term, and rented them for that time for $120, which he received and paid out, $50 to the defendant and the remainder on her account for repairs, taxes, &c. The commissioner found on those facts that the claimant was entitled to the fund, with interest from April 1,1878.</p> <p>The plaintiff excepted to the report, for that on the facts the trustee should have been held chargeable; but the court, Dun-ton, J., presiding, at the September Term, 1879, adjudged that trustee be discharged and that the funds be held by the claimant; to which the plaintiff excepted.</p> <p>The receipt by the claimant as agent of the defendant of money on which he had a lien operated as payment on his debt, and when he received enough to pay the debt the lien was discharged. His debt was the basis of his claim to hold the fund. He did not pay to the defendant in good faith, but for the purpose of defeating trustee process.</p> <p>Each claim here made by the plaintiff involves a question of fact, not of law, and each is found for' the claimant. Sessions v. Newport, 23 Vt. 9.</p> <p>In the absence of fraud nothing would operate to change the claimant’s ownership of the fund that would not also operate to discharge his debt, and fraud will not be presumed. Buswell v. Marshall, 51 Vt. 87.</p>

This was a petition to the County Court under s. 44, c. 24, Gen. Sts. for the laying out of a highway in the town of Rutland. The petition alleged the making of a prior petition to the selectmen, and neglect and refusal on their part to grant the prayer thereof. The petitionee pleaded that the prior petition was still being considered in good faith, and that the selectmen had not neglected and refused as alleged.

Trespass qua. elau. for entering, and cutting and carrying away timber, &c., from lot No. 16 of the Steel-clip grant, in Mount Tabor. Plea, general issue, and trial by the court, September Term, 1877, Ross, J., presiding. Exceptions and a petition for a Dew trial were filed by tbe defendant, and heard together at this term.

General Assumpsit. Pleas, general issue and Statute of Limitations, Trial by the court at the September Term, 1879, Dun-ton, J., presiding. The facts were as follows: In 1867 one Earle held a note against Cyrus Edson for $500, which was due, and on which payment was required. Edson asked the defendant to buy the note. The defendant had no money at the time, but agreed with Edson that he would raise the money, buy the note, and hold it for a year, for twenty dollars.

Book Account. The plaintiff was a retail druggist, and some of the charges in his account were of “ goods”, others of “ medicine ”, and others of other things, including some intoxicating liquor.

The original declaration was in debt and contained only the indebitatus and quantum meruit counts, and the common counts for money lent, money paid, money had, and on an account stated.

General Assumpsit brought to the Municipal Court of Rut-land. Trial by the court, Everts, J. It appeared that the debt that was sought to be recovered was incurred by the defendant wife before her intermarriage with the defendant husband, and while she was the wife of one Washburn, but while she lived apart from him.

This was ejectment for certain land in Clarendon from which the plaintiff was alleged to have been ejected on September 1, 1865. The defendant pleaded the general issue, and gave .notice of special matter, which the parties agreed should be treated as a special plea of the facts therein set forth.

The defendant filed a plea which the bill of exceptions denominated “ a plea in abatement.” The plea alleged that the writ was made returnable before the County Court within and for the County of Rutland on the second Tuesday of March, 1879 ; that at the time of the beginning of the suit, and at the time of the service of the writ, the defendant did not reside in said county, but resided, and for a long time before and ever since had resided, in the town of Granville in the…

General Assumpsit, with trustee process. Plea, general issue, with notice of special matter.

Trespass qua. clau. Pleas, general issue and license. The case was referred, and the referee found the following facts: The plaintiff and defendant Willard were owners of adjoining lands. Willard derived title from his father-in-law, the defendant Pratt. In 1868 Pratt went to the plaintiff, who was a surveyor, and asked him if he knew where the dividing line was, telling him that he wished to know, that he might cut some wood.

Book Account, with trustee process. A commissioner was appointed, who found the following facts : In March 1876, the defendant owned and occupied a farm in Danbv which, with out-lands thereto belonging, and horses, cattle, farming utensils, and other personal property thereon, of the value of about $1,600, which he also owned, was worth about $15,600.

The facts were agreed on, and were, so far as material, as follows: The plaintiffs duly petitioned said court to proceed against the defendant as an insolvent. The court appended a citation to the petition, and service and return were duly made.

General Assumpsit. The facts were agreed to be as follows: The plaintiff, a duly incorporated savings bank, sought to-recover the sum of $166 which it had paid under protest to the defendant’s collector of taxes in payment of town and highway taxes assessed on the lists of 1877 and 1878 in the defendant town, on property which the plaintiff contended was illegally set in the list.

Assumpsit, with trustee process. The case was referred. The referee reported, and the court, at the September Term, 1879, Rice, Assistant J., presiding, rendered judgment, pro forma, thereon for the plaintiff; to which the defendant excepted.

<p>Disqualification of Grand Juror. Gen. Sts. c. 87, s. 5. Sts. 1878, No. 35. Nuisance. Misdemeanor. Sts. 1876, No. 33.</p> <p>The statute forbidding the name of a person once drawn as a juror to be again put into the jury box within two years, does not so far disqualify a person whose name is drawn within that time that an indictment found by a grand jury of which a person so drawn is a member will be thereby rendered invalid.</p> <p>The keeping of a nuisance, within the meaning of No. 33, Sts. 1876, by keeping aplace of public resort for the unlawful sale, &c., of intoxicating liquor is a misdemeanor; and whoever helps in the commission of the offense is a principal.</p>

<p>Crimes. Nuisance. Sts. 1876, No. 33. Pleading. Continuando. Prosecution by Information. House of Correction.</p> <p>The keeping of a nuisance within the meaning of No. 33, Sts. 1876, by keeping a place of public resort for the unlawful sale, &c., of intoxicating liquor, need not be laid with a continuando ; and, where a day certain is alleged, evidence as to the character of the place on any day, whether before or after the day alleged, is admissible to show that it was a nuisance on any day within the time limited for the prosecution.</p> <p>Prosecution for such offenses may be by information ; and semble that prosecution for all but capital crimes, and crimes the punishment for which is imprisonment in state prison for more than seven years, may also be by information.</p> <p>In trial on information for such an offense, it appeared that for two years or more respondent was the keeper of the place, and that it was used as a place of public resort, and there was no evidence that the place was kept by any one other than respondent. The State produced a witness who testified that he bought ale there of respondent three times six months before the day alleged and before the time of trial. The court charged that if that testimony was true the respondent should be found guilty. Held, no error.</p> <p>The sentence was to pay a fine and costs, and to be confined at hard labor in the House of Correction for three months. Held, that the House of Correction was a substitute for the county jail in such behalf, and that the sentence was without error.</p>

<p>Case for negligently permitting the overflow of sewage onto the plaintiff’s premises. In the first count the plaintiff alleged that he was the owner of a house-lot and house on Howe street in the village of Rutland, and that the defendant, being authorized to construct sewers for the accommodation and convenience of the inhabitants of said village, so negligently constructed a sewer through his lands that the contents thereof were emptied upon his premises, doing him and his property great damage. The second count alleged negligence in keeping the sewer in repair, whereby like damage followed. Plea, general issue, and trial by jury, September Term, 1878, Barrett, J., presiding.</p> <p>The plaintiff introduced testimony tending to prove that prior to 1869, the surface water from all that part of the village that lay north of Washington street and east of the railroad, naturally flowed into the lower part of West street, and thence westward through a culvert under the railroad and along a small natural watercourse to and through the premises here in question, which were then owned by Florence Crowley, and across lands of Patrick. Toohey and certain other lands and certain streets to East Creek; that in 1869 the trustees of the village, acting under the act of incorporation and several acts amendatory thereof, which were introduced in evidence, and which empowered them so to do, established a general system of sewerage for the greater part of the village, and, with a view to the better drainage of that part of the village, laid sewers to the east and north of the railroad so as to deliver surface water and sewage through said culvert; that they made no change in direction until after passing the premises in question, but from about the middle of Toohey’s land they laid a sewer of cement tile for a considerable distance in a straight line across Howe, Forest, and School streets and for some distance beyond, to a termination in an open lot, whence sewage ran in the original watercourse, as before; that in 1872 the trustees made a substantial change in the course and construction of the sewer west of the railroad by discontinuing the use of the former sewer and watercourse beyond School street, and building a new sewer of cemented cobble-stones under that street in a straight line westward to East Creek ; that the sewer then made formed an angle with the former sewer of about forty-five degrees ; that the grade of the new sewer from that angle to East Creek was less than that of the old one, the descent of the one being two feet and nine inches, while that of the other was five feet and nine inches, and that the new sewer was one hundred and forty-five feet longer from that point than the old one ; that the bottom of the sewer under the railroad was five feet higher than at said angle, which was seven hundred and twenty-five feet distant; that the trustees then caused the tiles of the old sewer below the angle to be taken up, and a ditch to be dug in a straight line from the railroad across the premises in question to the upper end of the former tile sewer on Toohey’s premises, and connecting therewith ; and that, when the work of 1872 was done, many of the tiles were broken in being hauled from their former situation, and were so placed that they did not join each other. The plaintiff introduced evidence further tending to prove that soon after the sewer was so completed a storm arose and filled the sewer with water, &c., so that several rods of the tiling along Toohey’s premises and the premises in question, burst, and flooded the premises; that the sewer remained unrepaired and subject to overflow in case of storms, until after the plaintiff bought the premises and went into occupation thereof, in the spring of 1873 ; that after the plaintiff purchased, the water from the sewer, including nearly all the water-closet matter and sewage of the village, periodically escaped from the broken tiles and flooded the plaintiff’s premises, destroying vegetation, running into the cellar of his house, and finally causing continual sickness in his family; that matters remained in that posture for about two years, to the knowledge of the trustees, when the plaintiff made written complaint thereof, whereupon the trustees made some repairs, but not enough so but that the overflow of sewage continued substantially as before.</p> <p>The defendant introduced as a witness the president of the board of trustees, who had known the premises for thirty years, and offered to prove by him that prior to the building of the sewer the sewage ran through the open ditch; that the ditch was so constructed that in times of high water the banks of the ditch and the surrounding land were overflown ; and that there was no damage to the premises by reason of the making of the sewer. The plaintiff objected to the admission of the evidence, and it was excluded; to which the defendant excepted.</p> <p>The defendant then introduced A. C. Bates as a witness, and offered to prove by him that he was a member of the board of trustees just prior to the building of the sewer in 1872, and that the plaintiff’s grantor, who then owned the premises, petitioned the trustees to put in a box sewer to keep the water, &c., in the old ditch from overflowing. The plaintiff objected to the admission of the testimony, and it was excluded ; to which the defendant excepted.</p> <p>The defendant introduced evidence tending to prove that in locating the sewer and determining its size and the materials of which it should be built, the trustees were all agreed ; that the change from the straight line and original water-course to the school-street line was made under the superintendence of a competent engineer; that the tiles used in laying the sewer through the plaintiff’s premises were not broken in moving, and that the work was well done; that in times of high water Bast Creek would occasionally rise five feet and had been known to rise seven feet above low-water mark ; and that the overflow from the sewer was occasioned by the setting back of water from the creek.</p> <p>The plaintiff introduced evidence tending to prove that the overflow occurred during sudden showers, and before the water rose in the creek and set back therefrom, and not during long-continued rains. The engineer under whose superintendence the work was done, who was introduced .as a witness by the plaintiff, testified that he did not regard the change of route made in 1872 as a judicious one, and did not approve of the general location adopted ; and that in view of said angle and the diminished grade he did not consider that the sewer above Toohey’s land was sufficiently strong. He also testified that there were three methods of constructing the sewer ; one by iron pipes, which would have withstood any existing pressure ; one by tiling, which might have withstood the pressure, if well laid; and one by a culvert of cemented stone, which would have been least effective of all.</p> <p>The defendant contended that the difficulty was wholly due to the location of the School-street sewer below the plaintiff’s premises, involving the construction of the angle and the diminished grade. But the plaintiff contended that the increased pressure arising from those causes was an element of the question of sufficient construction of the sewer above ; that the tile sewer across his premises was negligently and insufficiently constructed in view of the route below, and in other respects ; and that it was negligently permitted to remain out of repair.</p> <p>The defendant requested the court to charge that the authority given to the trustees by statute relative to sewers imposed on them the exercise of judgment and discretion, so that no private action would lie against the defendant for any failure or refusal to exercise the authority conferred, nor for any mistakes or errors of judgment in locating or altering any sewer ; that the defendant was not answerable in a private action for not providing sufficient sewerage for the plaintiff’s premises or for any part of the village ; that the defendant was not liable in an action for damages occasioned by the insufficient size of the sewer, nor by the setting back of water because of insufficient grade; that a private action would not lie for damages occasioned by the location of the sewer so that the water set back, Ac., although no such result would have followed location in a different place, or the leaving of the sewer where it was placed in 1869 ; that all deliberations and decisions of the trustees in locating sewers, Ac., selecting the materials of which they were to be made, Ac., were official duties and powers, judicial in their nature; that the only damages for which the defendant was liable were such as arose from negligence in constructing the sewer; and that if. the making of the sewer did not put the plaintiff in a worse position than he would have been in if the sewer had not been made, he could not recover.</p> <p>The court refused so to charge, but charged substantially as follows :</p> <p>The village upon authority assumed to make the sewer through the plaintiff’s premises. It bad the lawful authority so to make it and the plaintiff could not prevent it. It was for the defendant to determine what kind of sewer it would make, and how it would make it. It is obvious that the defendant was under obligation so to make it as not to ruin the plaintiff’s premises as a place of residence, or injure it or any other person’s property. The sewer was laid down in 1872. You have heard how it was located and constructed through the plaintiff’s land, and how it has been permitted to remain there, and how it has operated as thus located, constructed, and permitted to remain, as affecting his territory and his house. Now has the defendant been negligent of its duty in the making of the sewer, or in the matter of the repair of it ? If so, then it is liable to the plaintiff for the damages he has sustained in consequence of such neglect. Has the defendant been neglectful of its duty in the manner in which the sewer was made ? In order to determine that, you have to bear in mind all that pertains to the subject. The defendant was bound properly to make a sewer to serve the legitimate purposes of a sewer, viz., to carry off the waste water and drainage from the various buildings and establishments through the village. What would do that properly is to be judged of with a view to what was to come into the sewer and into the main sewer; the quantity and character of the stuff that would pass through it; the grade on which it would proceed to its outlet; the character of the soil through which it would pass ; the occupancy of the land along its course ; the purposes for which that land was, and was legitimately to be, occupied ; and in connection therewith the proper size of the sewer to give a sufficiently free flow to its contents and to prevent the sewer from bursting and doing injury to the persons through whose land and by whose dwellings it should pass. Having in mind all that, did the defendant make the sewer through the plaintiff’s land as it was its duty to do, or did it fail .in that respect, — failing to exercise in the making of the sewer such reasonable judgment, discretion, and care as was requisite in order to make it safe as against injury to the plaintiff? If you find that the defendant failed in its duty in that respect, and these injurious consequences have ensued to the plaintiff, the defendant is liable for those consequences, and in this suit the plaintiff is entitled to have a verdict for compensation. Again, if you should fail to find that the defendant was in fault in the manner of making the sewer, then the next question is, has the defendant been in fault in the matter of the condition in which it has been since it was made, that is, in the state of repair ? Has the defendant failed in its duty in the matter of keeping in repair; and for want of proper repair have these outbursts of the filthy contents flowed upon the plaintiff’s premises and done the injury of which he complains ? If that is so, then the plaintiff would be entitled to recover for that cause, even though you failed to find any defect in the original construction of the sewer along through his place. If after it was made, owing to one cause or another, it fell into a defective condition, and the defendant has improperly and negligently permitted it to remain in that condition without putting it in proper condition to protect the plaintiff, and those along through whose land it ran, the defendant would be liable on that score. In the matter of the construction of the sewer, a question has been moved before the court as to whether the matter of the location of that sewer should be regarded as entering into its construction in such a way as that if it was improperly located, having reference to the purposes to be served by it, that that would subject the defendant to liability. Suppose the sewer as it was built would have been sufficient in every respect, provided it had been properly located, now then as it was located, was that location a defect that would render the defendant liable ? Practically, as I have already presented this subject, I consider it of no very great importance, because, as I have already said, in determining whether the village did its duty in the matter of the construction of the sewer, an element on which that is to be determined is its location. The defendant having chosen its location, did it do what it ought to have done in making the sewer reasonably safe as against injury to the persons along the line of it.</p> <p>The court submitted to the jury to find specially whether the defendant neglected sufficiently and properly to construct the sewer in respects other than its location, and whether the defendant neglected to keep the sewer in proper repair. The jury found for the plaintiff, and answered both, special questions in the affirmative.</p> <p>The defendant excepted to the refusal to charge as requested, and to the charge given upon the subject of the liability of the defendant, in so far as it varied from the requests, and to the charge, so far as it allowed the giving of damages that might be the result of the location or size of the sewer, or the materials of which it was made, and to that portion of the charge which included the location, size, and materials aforesaid within the grounds of recovery, and to the submitting of the questions to the jury under the definition and description of what was proper construction and repair, as contained in the charge.</p> <p>Municipal corporations created for the purposes of government, represent a part of the sovereignty of the State, and are not liable in a private action for damages resulting from the exercise of public prerogatives, or such powers as are given it for the public weal, unless the action is given by statute. Baxter v. Winooski Turnpike Co. 22 Vt. 114; Hyde v. Jamaica, 27 Vt. 448 ; White v. Marshfield, 48 Vt. 20.</p> <p>The subject of constructing sewers is of the same general character as that of laying out streets. Mills v. Brooklyn, 32 N. Y. 489.</p> <p>In the exercise of the authority given to make sewers, Ac., the trustees act as public officers, and not as agents for whose acts the corporation are liable in a private action. Flagg v. Worcester, 13 Gray, 601; Mills v. Brooklyn, supra; Maxmili'an v. New York, 62 N. Y. 160.</p> <p>The damage complained of resulted wholly or partly from the location, or insufficient size, Ac., of the sewer. The sewer was placed by the judical discretion of the trustees, and the defendant is not liable for their errors of judgment. Child v. Boston, 4 Allen, 41; Barry v. Lowell, 8 Allen, 127 ; Flagg v. Worcester, supra; Dillon Munic. Corp. s. 801.</p> <p>If the making of the sewer did not put the plaintiff in a worse condition than he would have been in if it had not been made, the defendant is not liable. Dillon Munic. Corp. s. 801; Mills v. Brooklyn, note by Mitchell, J., 5 Am. Law Reg. 42.</p> <p>The requests to charge should have been complied with.</p> <p>The defendant by accepting its charter and constructing its sewers entered into a contract with every individual interested in the performance of that duty, which could be performed only by constructing and keeping in repair sewers that would subserve the legitimate purposes of sewers. Conrad v. Ithaca, 16 N. Y. 158, and note. The duty thus imposed was not a public one— that is, not imposed by a statute applicable to all towns ; and if the defendant was guilty of negligence, either in constructing or maintaining its sewers, and damage occurred in consequence thereof, it is liable to an action in favor of the party injured, Iones v. New Haven, 34 Conn. 1; Conrad v. Ithaca, supra; Whart. Negl. s. 262, and notes ; Ashley v. Port Huron, 4 Am. Law Times, 77 ; Byrnes v. Cohoes, 67 N. Y. 204; Saund. Negl. 86 and note ; Gilman v. Laconia, 55 N. H. 130.</p> <p>But here also the damages or injury occurred in consequence of negligence in respect to the performance of a ministerial, as distinguished from a judicial, duty. The determination of the question whether sewers should be constructed may be considered quasi judicial; but the work is ministerial, where the undertaking is corporate. Under such circumstances the corporation must respond in a civil action for all damages caused by the careless or unskilful manner in which sewers are constructed, as well as for negligence in failing to keep in repair. Dillon Munic. Corp. ss. 753, 801, 802; Jones v. New Haven, supra; Whart. Negl. ss. 263, 264 and note ; Barton v. Syracuse, 36 N. Y. 54 ; New York v. Furze, 3 Hill, 612 ; Child v. Boston, 4 Allen, 41.</p> <p>The position of defendant would seem to be that the difficulty was wholly due to the planning and location of the sewer below the plaintiff’s premises, and that the location of the sewer, as an act antecedent to its construction, ‘was a judicial act, and the real and only occasion of the difficulty. We cannot see how the location of the route is in any sense an act more judicial in its nature than the subsequent steps in construction. No line of demarcation can be drawn at any point. But if it be conceded that the defendant could clear itself by proof that the damage was due solely to an ill-advised location, it has not done so; for the jury expressly found that the defendant neglected sufficiently and properly to construct the sewer in other respects, and also neglected to keep it in proper repair. Either finding will sustain a general verdict for the plaintiff. The true bearing, however, of the question of location is that stated in the charge, where the jury are asked whether, the location being chosen, the defendant did what it ought in keeping the sewer reasonably safe, and are told that in determining whether the defendant did its duty in the matter of the construction of the sewer, an element on which that was to be determined was its location. This was a proper question for the jury, whether or not the sewer was negligently built, having regard to its course, and this was found for the plaintiff also; so that whether the question of the location is in the case or out of it, it was properly disposed of on the trial. Musgrave v. Smith, 5 Reporter, 850.</p> <p>The testimony of Page and Bates was immaterial and properly excluded. The requests to charge were properly not complied with ; and the charge given was without error.</p>

<p>Landlord and Tenant. Right to Re-enter. Ejectment, den. Sts. c. 46 ss. 22, 28. Practice. Waiver.</p> <p>In ejectment under ss. 22, 23, c. 46, Gen. Sts. for premises of which defendant was in possession under a parol lease, but for which she refused to pay a certain installment of rent, the evidence on the part of defendant, which was introduced without '■ objection, tended to prove that plaintiff agreed in the contract of letting to make certain alterations in the premises which he had not made, and that by reason of his failure therein the use of the premises had been worth less than they otherwise would have been by a sum greater than the amount of the rent in arrear. There was evidence on the part of plaintiff, also introduced without objection, that tended to prove that there was no such agreement. It appeared that defendant had paid rent for several months before refusing to pay the sum in arrear. Reld, that defendant had a right to recoup the damages occasioned by non-performance of the alleged agreement; that she did. not waive that right by paying rent; that it was incumbent on plaintiff to show rent in arrear when action was brought; and that it was erroneous to direct a verdict.</p> <p>There was also evidence on the part of plaintiff tending to show that it was agreed that he should have the right to re-enter on default inpayment of rent, which was opposed by evidence to the contrary on the part of defendant. Held, that that question also should have been submitted to the jury, as, if determined in the affirmative, it would be conclusive, if there was rent in arrear, of plaintiff’s right to maintain the action.</p>

These were appeals from orders for the removal of certain alleged paupers from the town of Landgrove to the town of Plymouth. The causes were heard together at the December Term, 1878.

General Assumpsit. Plea, general issue, and trial by jury, June Term, 1879, Dunton, J., presiding.

Case for loss of service, society, &c., in consequence of injuries received by the plaintiff’s wife upon a highway. The decíaration alleged, among other things, that by reason of said injury the plaintiff had been and thenceforth would be “ deprived of the service and assistance of his wife.” Trial by jury, September Term, 1879, Ross, J., presiding. It appeared that the plaintiff and his-.'wife had already recovered in a former action for the wife’s personal injuries.

Trover for a quantity of lumber. Plea, general issue, with notice of special matter, and trial by jury, March Term, 1878, Barrett, J., presiding.

<p> Partnership. Conversion. </p> <p>C., who owned a mill, farm, and wood lot, agreed with F. that F. should cut logs on the lot, haul them to the mill and manufacture them into chair-backs, or such other goods as C. might direct, should furnish his own oil, &c., and carry on the farm in connection with the mill; that C. should furnish timber in the lot, put the mill in order, market the goods and make collections ; and that the taxes on the mill and farm, the expense of cutting and hauling the logs, the freight on goods to market, and the proceeds of the goods, farm and such custom sawing as might be done should be equally borne and divided between them. Held, that as by the contract F. was to have, not a specific interest in profits as such, but a stipulated proportion of the proceeds as compensation for his services, there was no partnership.</p> <p>F. took possession under the contract, cut and hauled logs, and manufactured chair-backs, which he stuck up on the mill premises. An undivided half thereof was attached at suit of S. as the property of F. by lodgment of a copy of the writ in the town clerk’s office. The interest attached was afterwards sold on execution and came to the hands of S., and S. sold the entire property, but before he sold it A. and others purchased C’s interest therein. In trover by A. and others against S., held that as the property was not removed on attachment, and not until the sale thereof by S., there was no conversion until after the sale by C., and that the action would lie.</p>

<p>Case for injuries received upon a highway. Trial by jury, September Term, 1879, Ross, J., presiding.</p> <p>The plaintiff offered in evidence the notice that was given to the defendant’s selectmen, which, so far as it gave a description of the injury and its effects, was as follows:</p> <p>Four of my ribs upon my right side were fractured, my right hip was badly bruised, and I was also badly injured about the back and kidneys, and my whole body was shaken, bruised, and injured, and my health greatly impaired.</p> <p>The defendant objected to its admission for that it contained no such statement as the statute required, but the court admitted it to which the defendant excepted.</p> <p>The evidence introduced on the part of the plaintiff tended to show that on December 15,1877, the plaintiff while driving along the highway was by reason of the insufficiency thereof thrown from the top of a load of hay, on which he was riding, down an embankment; that four of his ribs were thereby broken, that his right hip was bruised, and also that part of his back that is just below the region of the left kidney, and that his whole system was greatly prostrated ; that he was confined to his bed four or five weeks, when he became able to walk a little with difficulty, and to his house until the next spring, when, though feeble and suffering from the injuries to his back and hip and from general nervous prostration, he was able to walk about his premises; that in July he became worse and was confined to his bed three or four weeks, when an enlargement appeared on the right side of his abdomen, caused, according to the testimony of medical witnesses, by an infiltration of water in the cellular tissue, due to a debilitated condition of the nerves, fairly attributable to the shock given to the nervous system by the accident complained of; that he at the same time saw sparks by night and motes by day, which, in the opinion of the same witnesses, indicated a derangement of the nervous system — “an injury to the nerves of the spine”; that he so far recovered as to be able to be around on his farm, but that the enlargement remained on his abdomen, and that he was able to do very little work, and suffered from general nervous prostration, and at times from considerable pain in his back and hip. The defendant seasonably objected and excepted to the admission of all evidence relative to said enlargement and the injury to the plaintiff’s nervous system, ípr that no claim with reference thereto was made in the notice.</p> <p>The defendant requested the court to charge that under the notice the plaintiff could not recover for any bodily injuries, that in any event his right to recover was limited to the injury resulting from the broken ribs and the bruise on the right hip, and that the general statements in the notice that he was injured “ about the back and kidneys”, and that his “whole body was shaken, bruised, and injured,” and his “ health greatly impaired,” gave him no right to recover for injuries not specifically located and designated. The court refused so to charge, but charged that the notice was sufficient to enable the plaintiff to recover for all bodily injuries that were the natural and necessary consequences of the accident. The court however instructed the jury to find specially, if they found for the plaintiff, how much damage the plaintiff suffered in consequence of the broken ribs and the bruise on the hip, how much by reason of the injury to the back and kidneys, and how much by reason of being shaken and injured generally, that is, by reason of the shock to his nervous system. To the refusal to charge as requested, and to the.charge given, the defendant excepted. The jury found for the plaintiff to recover $1,108.33, and that the damage in consequence of the injury to the ribs and hip were $870, and, in consequence of “ nervous shock,” $238.33.</p> <p>The notice was not sufficiently specific. Nourse v. Victory, 51 V-t. 275. The construction put upon the act is shown by Law v. Fairfield, 46 Vt. 425 ; Babcock v. Gruilford, 47 Vt. 519 ; Reed v. Calais, 48 Vt. 7; Purrington v. Warren, 49 Vt. 19 ; Banney v. Sheffield, 49 Vt. 191; Holcomb v. Danby, 51 Vt. 428.</p> <p>The notice meets all the requirements of the statute. The statute does not require the injured person to do more than describe and locate his injuries in his own language, and state, as best he can, their extent and effect upon his health. It should have a reasonable construction, not such a construction as to require the injured person to conjecture as to what the effect on his health may be, what consequences may develop after the expiration, of the time in whichhe must give his notice. The enlargement on the abdomen, which developed about seven months after the time for giving the notice elapsed, was caused by a debilitated condition of the nerves attributable to the shock to the nervous system. The notice sufficiently alleges the shock to, and impairment of, the nervous system, by use of the words, “ my whole body was shaken, bruised, and injured,” and my “ health greatly impaired.” The enlargement on the abdomen was one of the manifestations of the impairment of the nervous system — one of the symptoms indicating that the plaintiff’s “ whole body was shaken, bruised, and injured.”</p>

Trover for a horse. The case was referred. The facts found by the referee are stated in the opinion of the court. At the September Term, 187.8, the court, Ross, J., presiding, rendered judgment, pro forma, on the report for the plaintiff for the value of the horse with interest; to which the defendant excepted.

<p>Case for deceit in the sale of land. The case was referred, and the referee reported in effect as follows :</p> <p>On November 4,- 1869, the defendant by quit-claim deed conveyed to the plaintiff a farm in Jamaica of which he became the owner by like deed on September 27, 1858. Previous to the purchase the plaintiff went onto the farm, and examined it to some extent; and the defendant then pointed out the boundaries to him, and told him the farm was 'bounded on the west by West River, and that the north and south lines extended thereto. Afterwards but before the execution and delivery of the deed, the plaintiff heard that Eliza J. Divoll claimed to own some of the land on the east side of and adjacent to the river ; and on the day of conveyance, but before the execution of the deed, he told the defendant what he had heard. The defendant replied that she did claim to own about nine acres on the east side of the river ; but that by the reading of the original deed, — referring to a deed of January 19, 1881, from Daniel Cobb to Jonas French, which the defendant had had in his possession from the time of his purchase, and which described the land as “ bounded westerly on West River, and on the west line of the school lot,” &c., — the farm was bounded on the west by the river ; and that he had ever occupied, and claimed to own, all the land to the river. The defendant produced the deed referred to, on this occasion, but it did not appear that the plaintiff then examined it. Said Eliza in fact then-owned a lot known as lot No. 79, which lay mainly on the west side of the river, but extended across to the east side, and included four acres and one hundred and thirty-seven rods of the land embraced in the description in the deed to the plaintiff; so that the farm thereby conveyed was bounded on the west a portion of the way by that lot; and she had exercised the ordinary rights of ownership over it to some extent ever since the defendant’s purchase, and had claimed to own about nine acres on that side of the river. But the defendant had also ever claimed to own to the river, and had occupied the land as such land is usually occupied ; and when he made the representations aforesaid, believed them to be true, believed that said lot was wholly on the west side of the river, and that the river was the western boundary. The plaintiff, however, knew nothing about the boundaries, and in purchasing relied on the defendant’s representations. After the plaintiff went into possession he cut wood on the disputed tract, and said Eliza brought an action against him therefor and recovered. The land in controversy was wooded and not used for tillage or pasturage ; and during the time of the defendant’s ownership and occupancy there was no fence dividing any portion of that land from the land not in dispute. The south line did not extend to the river.</p> <p>Question was made on other facts as to a defense under tho Statute of Limitations, and question was also made as to the measure of damages; but, as they do not bear on the question decided, they are not stated.</p> <p>The court, Ross, J., presiding, at the September Term, 1879, rendered judgment on the report for the plaintiff; to which the defendant excepted.</p> <p>contended that the case disclosed no deceit, and cited Cabot v. Christie, 42 Vt. 121; Beeman v. Buck, 3 Vt. 53 ; West v. Emery, 17 Vt. 583 ; Chandelor v. Lopus, 1 Smith Lead. Cas. 238 ; Pasley v. Freeman, 2 Smith Lead. Cas, 157, and cases passim.</p> <p>An action for fraud lies for deceit in a contract for the sale of land, the same as for deceit in the sale of personal property. Barlow v. Green, 34 Vt. 379; Kelley v. Pember, 35 Vt. 183; Whitton v. Goddard, 36 Vt. 730.</p> <p>The defendant passed off belief for knowledge, and was therein guilty of actionable fraud. Cabot v. Christie, 42 Vt. 121.</p>

<p>Trespass, with a count in trover, for four horses and a quantity of lumber and chair posts. Pleas, general issue, and justification under process. Trial by jury, September Term, 1878, Ross, J., presiding.</p> <p>The plaintiffs introduced in evidence a writ against Austin P. Graham at suit of the West River Bank, with record of judgment by confession thereon for $8,200, execution thereon for the same amount, and note also for the same amount from Graham to the bank; writ against the same at suit of Seth Taylor, Jr., with record of judgment by confession for $4,619.61 damages, and $3.42 costs, execution thereon, Graham’s notes payable to Taylor, one for $3,500 and one for $1,060, and a memorandum of $59.61; and a deed of warranty from Graham to said Taylor and Billings Taylor. Those papers, — writs, judgments, executions, &c., — all bore date December 17,1861, except the memorandum, which bore date the 12th. The plaintiffs introduced witnesses whose testimony tended to prove that on the morning of the day of the date of those papers, Graham, who was the owner of considerable real estate consisting of mill property, houses, and woodland, and of personal property consisting of horses, oxen, wagons, sleds, har. nesses, lumber, logs, and chair-stock, but who was indebted to parties in the west, and indebted to the bank on a promissory note for $5,500, of which he was the maker, which was about to mature, and also liable on other notes of which he was an indorser to the amount with interest of about $2,700, went to the bank to see Butler, the cashier, in regard thereto; that Butler then said the bank must be secured, and sent for the Taylors, who had-assumed a contingent liability for Graham amounting to about $3,500j and to whom he was indebted in the further sum of about $1,100, and in the evening, when the Taylors came, they with Butler and Graham went to the office of Butler & Wheeler, attorneys, who had before then acted professionally for both the bank and Graham, to consider the matter; that Graham there gave an account of his property, and Butler not being satisfied to let the matter remain as it was, action was brought at his request in behalf of the bank, and an action in behalf of the Taylors at their request, and executions issued thereon, &c.,'as per papers already referred to; that Graham wished to continue his business, and they all wanted he should, so it was agreed on Graham’s request that when the property came to be sold the Taylors should bid off the property, if it went low, the Taylors consenting so to do, and let him have it to go on in business with, he managing it as his own, exchanging and buying out of the proceeds of it when necessary, &c., but keeping it good as nearly as he could, and keeping it for the Taylors, but with the understanding that it should finally be his if he paid the debts ; that he was to pay the debts as fast as he could, paying the bank first and the Taylors afterward, and that the Taylors were not to be liable for anything he might do; that deeds conveying all of Graham’s real estate to the Taylors were then drawn and executed, and that the executions were delivered to the sheriff that night. The testimony of those witnesses also tended to prove that the executions were afterwards levied on all of Graham’s personal property, and the property sold at auction in January following, for about $2,500, and bid off by the Taylors and retained and used by Graham, pursuant to said arrangement; that the Taylors never paid their bids, but that the bank took an obligation of them for the amount of its debt, the greater part of which Graham afterwards paid; that Graham continued in possession of the property, managing it substantially as his own, manufacturing lumber and chair-stock, and buying and selling until this action was brought, in June, 1876,; that the Taylors died in 1868 and 1869, Graham still owing them about $5,000, which was not paid at the time of trial; that Graham was one of the commissioners and appraisers on the Taylor estates, and in that capacity inventoried the property of the estates, but inventoried as such none of the property in question, although the Taylors’ widows knew they owned the property, and talked about it, but never asked Graham to give it up; that at different times after the arrangement of December 17, the property was attached by various creditors as Graham’s property, and that Graham settled with them without disclosing the state of the title ; that the property taken by the defendant was all property that Graham had obtained from the business under the arrangement with the Taylors, but none of it the identical property that was bid off by the Taylors and returned to the possession of Graham.</p> <p>It was conceded that the defendant took the property in question as the property of Graham.</p> <p>On the foregoing .testimony the court directed a verdict for the defendant. Exceptions by the plaintiffs.</p> <p>The court in taking the case from the jury went beyond any decided case. In Webster v. Denison, 25 Vt. 493,-there was an absolute agreement to buy the property which was an inducement to the confession of judgment, yet it was left to the jury to find whether there was any secret trust. Here the suits were brought of the bank’s motion, not of Graham’s.</p> <p>But the Taylors did not stand in the relation of creditors to the bank’s execution, which the property did not bring enough to satisfy. The bank made no agreement to buy. This carries the case outside of the principle contended for by the defendant. Webster v. Denison, supra. There can be no secret trust except between the parties to the execution on which the property is sold. Batchelder v. Barter, 2 Vt. 168 ; Austin v. Soule, 36 Vt. 645,651.</p> <p>A sale of personal property is generally not good as against creditors without change of possession. Official sales are, however, an exception. Farnsworth v. .Shepard, 6 Vt. 521; Gates v. Gaines, 10 Vt. 346. A sale to be official must be in invitum, and it must appear that all proper steps were taken. Austin v. Soule, 36 Vt. 645. It is not official when it rests wholly or in part on the contract or consent of the parties. No arrangement can be made by which such a sale can operate a lien valid against creditors. Kelly v. Hart, 14 Vt. 50 ; Webster v. Denison, 25 Vt. 493. The sale here was not a proceeding in invitum, but by consent. Moreover it was not absolute, Graham having a right to redeem.</p> <p>Fraud is a question of law, especially where there is no dispute about facts. Sturtevant v. Ballard, 9 Johns. 337; 1 Bur. 243 ; Farnsworth v. Shepard, supra.</p>

<p>Ejectment for a part of lot No. 17 in tbe town of Jamaica. The case was heard on an agreed statement of facts, at the September Term, 1877, Ross, J., presiding. The facts agreed on were as follows:</p> <p>By the original charter of the town, executed November 7, 1780, the township was granted to Samuel Fletcher and sixty-seven others “ together with five equal shares or rights ” to be appropriated to certain public uses, one of them being “ for the use of the county grammar schools throughout the state.” In the second division of lots among the proprietors, lot No. 17 was drawn and set to the county grammar school right. On October 31, 1801, the Legislature incorporated such a school for Windham County, and the school was established at Newfane. But about 1812 the school ceased to exist, and about 1815 the corporation ceased to have an organization and its property was sold. All of its corporators and stockholders died before 1830, and no such school was ever afterwards established in the county; but other such schools were incorporated and established in the State. On October 27, 1823, the Legislature passed an act providing that the rents and profits from that right of land be appropriated to the use of common schools in that town, and empowering the selectmen of the town and their successors in office to lease the land and appropriate the rents and profits thereof to the use of such schools, in the manner provided by law for disposing of the rents of lands originally granted for the use of such schools. On April 1, 1833, the selectmen demised that part of the lot here demanded, by lease under seal, signed by them in their official capacity as selectmen, and by the lessee, to one Rogers Howe for as long as water might run and grass grow, reserving a rental of $4.50, to be paid on January 1, annually ; and Howe went into possession under his lease. The lease was expressed to be between “ the selectmen of,” &c., of the one part, and said Howe of the other, and referred, in desci’ibing the land, to the original appropriation and to the re-appropriation by the statute of 1823, and was conditioned as follows :</p> <p>Provided, and it is the true intent of these presents and the parties, that if the said yearly rents hereby reserved, or any part thereof, shall be behind or unpaid, that then and from thenceforth it shall and may be lawful for the said selectmen into and upon said demised premises, and any and every part thereof, with the appurtenances, in the name of the whole, to re-enter, and the same to have again to repossess and enjoy.</p> <p>On March 12,1864, after several mesne conveyances, the premises came into possession of the defendant, with all of Howe’s rights thereto. The rent accruing under the lease was paid to January 1, 1860. In 1864 or 1865 the defendant paid the selectmen $13.50 to apply on the rent, without designating for what years ; and the selectmen applied it in payment of the rent for the yeai’s 1861-3. On February 25, 1871, he paid them $15 to apply on the rent, and they credited it generally, without applying it on any particular years. No other rent was ever paid to or claimed by any one. The selectmen, successors in office of the selectmen who signed the lease, repeatedly called on the defendant for the rent, and threatened to bring suit for possession of the land, if the rent was not paid on or before a day named, and more than six months before the bringing of this suit; but such demands were not made on or near the land, and the selectmen made no attempt to re-enter.</p> <p>The court rendered judgment that the plaintiff recover possession of the land, and $48 rent, and costs ; to which the defendant excepted.</p> <p>The grammar schools are presumed still to exist. The action should have been brought in the name of the State. The grammar schools have not lost their right through the statute of 1823, that act being unconstitutional. Dartmouth College v. Woodward, 4 Wheat. 518; Caledonia County Gtrammar Schools v. Burt, 11 Yt. 632.</p> <p>The defendant might not deny the right of the selectmen under whom he entered, but he is not estopped from denying the title of the town, the lease having been executed by the selectmen in their own names, and rent not having been paid to the plaintiff.</p> <p>The plaintiff cannot recover because there was no re-entry. There was in non-payment of the rent a mere breach of covenant. Fifty Associates v. Howland, 11 Met. 103. Until re-entry there was no ouster. See 2 Bl. Com. 155 ; Fifty Associates v. Howland, supra ; Chamberlin v. Donahue, 41 Vt. 306.</p> <p>But if ejectment will lie, only nominal damages should be recovered. Ejectment under the statute is co-extensive with ejectment at common law united with trespass for mesne profits. Lippett v. Kelley, 46 Yt. 516, 524.</p> <p>The defendant standing in relation of tenant to the plaintiff, is estopped from questioning the right of the plaintiff as against the grammar schools and the constitutionality of the statute of 1823.</p> <p>By the statute dispensing with certain common-law requisites for the maintenance of ejectment a re-entry was unnecessary.</p> <p>The damages were not too large. The rent is an incident of the land, and its recovery follows recovery of the land, as a matter of course.</p> <p>But damages in this action are in the discretion of the triers of the facts; and it should be presumed that all facts necessary to the judgment were found. Card v. Sargeant, 15 Vt. 398; Emerson v. Young, 18 Vt. 603 ; Eauchy v. Goodrich, 20 Vt. 127 ; Roberts v. Welch, 46 Vt. 164.</p>

<p>Trespass qua. el'au. for entering a house and destroying fur-' niture and clothing therein, about December 1, 1877.' Plea, general iséue, and trial by jury, May Term, 1879, Barrett, J., presiding.</p> <p>It appeared that the defendants lived in a house in the same enclosure with the house that was entered, and there was evidence tending to prove that the defendant Nancy, wife of the defendant-Albert,-was the person who committed the act-complained of.' It appeared' that the owner of the house was absent when the act was committed, and that the house was closed, but cared for in thé plaintiff’s absence, by Albert G. Marsh and his wife, who lived near. It appeared also that at the time of the commission of the act, there was a young girl of the name of Jennie Rogers living with-the Marshes ; and that in March, 1878, she set a fire in a woodshed connected with the house' in question, and was after-wards sent to the reform school in consequence. She was called' as a witness by the plaintiff, and testified that some time in December, 1877, she went to the house, being sent there by Mrs. Marsh, and went through the different rooms to the parlor, where she found the defendant Nancy in the act of destroying a picture. It appeared that she was sent to the house by Mr. and Mrs. Marsh from time to time on various errands, but “ there was no evidence tending to show that she went there when not sent.” The defendants called Merrill Owen as a witness, and asked him whether- at any time in the fall of 1877, he saw the girl in, or going to or from, said house. Objection was made and the answer was excluded ; to which the defendants excepted. The defendants also asked him how often he saw her before he heard that she had gone to the reform school. He answered that he saw her quite often. They then asked him what her habit was “ about that” after her return from the reform school. Objection was made, and the answer was excluded; to which the defendants excepted. The defendants also offered to prove by Herman Morse that on one occasion, after he heard the house had been entered, but before said Jennie was sent to the reform school, when he was passing the house, the girl pushed aside the curtain at one of the windows, the curtains being drawn, and looked out at him and then withdrew. The testimony was excluded ; to which the defendants excepted.</p> <p>Mrs. Pierce, sister of the plaintiff, who lived with the plaintiff in the house in question, and owned some of the things destroyed, was called as a witness by the plaintiff, and on cross-examination identified a letter written by her to the defendant Nancy. The defendants offered that letter in evidence as tending to show the relation between the witness and the plaintiff and their sister, who also lived in the house in question and owned some of the things that were destroyed, and also as being an answer to a letter to her from said.defendant. The letter was not shown to the plaintiff’s counsel, nor to the court, nor were its contents stated. The letter was excluded; to which the defendants excepted. The defendants’ counsel argued to the jury that the girl, and not the defendant Nancy, committed the act complained of. The verdict was guilty, and the plaintiff moved for and obtained a close-jail certificate.</p> <p>The testimony of Owen and Morse was admissible to prove that the acts in question were committed not by the defendant Nancy, but by the girl Jennie.</p> <p>The evidence offered was not pertinent to the issue. Best Ev. 95, 118, 119, 277, et seq.; Baldwin v. Skeels, 51 Vt. 121; Grates v. Moore, 51 Vt. 222.</p>

This was an action brought before a justice, under section 22, c. 46, Gen. Sts. to recover possession of a certain tenement in Hartford, whereof, as it was alleged, the defendant held possession unlawfully and against the right of the plaintiff.

<p>Assumpsit on two promissory notes. Plea, that defendant was surety therein, and that the plaintiff had executed a discharge to the principals. Replication that defendant was principal and not surety. Trial by jury, May Term, 1878, Barrett, J., presiding.</p> <p>The plaintiff introduced evidence tending to show the circumstances under which the defendant indorsed the notes, which is sufficiently stated in the opinion of the court. The defendant also introduced evidence in regard thereto, but as it is rendered immaterial by the manner in which the case is disposed of, it is not stated.</p> <p>The evidence being all in, the defendant requested the court to charge that if Richardson, who bought the oxen for which the notes were given, bought them for the firm of which he was a member, and the defendant had no interest in the firm or in the purchase, and did not hold himself out as being interested in the purchase, and the plaintiff made the sale to Richardson, knowing them to be purchased for the firm’s benefit, the defendant was surety. The court refused so to charge, but left it to the jury to say, on all the evidence, whether he signed as surety or not; saying that if it was understood between the parties that he signed as surety, then he did. so sign, otherwise, as principal. To the refusal to charge as requested, and to that part of the charge here stated, the defendant excepted.</p> <p>contended that the refusal to charge as requested and the charge given were erroneous, and cited Brooks v. Thacher, 49 Vt. 492.</p> <p>contended that the evidence introduced on the part of the plaintiff tended to prove that the defendant intended to assume an unconditional obligation, and that the charge fairly presented the question at issue.</p>

<p>Assumpsit on a promissory note. Plea, general issue, and plea alleging settlement and discharge by a deed of composition wherein the plaintiff and the other creditors of the defendant covenanted to dischai'ge their respective claims on payment of a certain percentage, and payment thereunder. Trial by jury, May Term, 1878, Barrett, J., presiding.</p> <p>The second plea set out the composition deed, which recited that the defendant was insolvent, and proposed to compound ; that among his assets were fifteen shares of stock in the First National Bank of Springfield, which were claimed to be held by the Springfield Savings Bank, as collateral security for a debt of $1,000, with interest thereon; and that if the shares were not legally so held he agreed to pay each creditor seventy cents on the dollar of his indebtedness, “ provided all creditors ” should “ come into the arrangement”, otherwise so much less as such reduction of the assets might require. The deed, which was dated March 16, 1877, was further as follows:</p> <p>Now we, the subscribers, creditors of the said Joel Woodbury, . . . do hereby severally promise, covenant, and agree that if the said Wood-bury will pay us each our respective dividends, as above proposed, within thirty days from this date, we will release and discharge our several claims in full; and, on said payment of dividends, our said claims shall be fully discharged and released. And we further agree that whether the lien ... of the Savings Bank be legal and valid or not be left to the arbitrament and decision of Luther Adams, . . . whose decision shall be final; he to be furnished with the facts on the part of the creditors and trustees of the savings bank.</p> <p>The plea alleged the submission of the question as to the validity of the lieu of the savings bank to said Adams, and decision by him in the affirmative. It also alleged that the plaintiff’s attorney, after examining the award, and being informed of all the circumstances connected therewith, received the dividend to which the plaintiff was entitled under the deed, and indorsed it on the note, but kept the note only for the purpose of seeing if he could induce Adams to “ reconsider and change his award”, which he attempted “ but failed to do.”</p> <p>The defendant introduced evidence under his second plea, in eluding said deed and award. The plaintiff introduced evidence tending to prove that the defendant’s creditors had not all signed the deed. The defendant thereupon introduced evidence tending to prove that the creditors who had not signed it were not his individual creditors, but the creditors of a solvent firm of which he was a member, and that his partner signed.</p> <p>It was admitted that the plaintiff was not notified of the hearing before Adams, and did not attend. The plaintiff offered evidence tending to prove that as an inducement to him to sign the deed the defendant told him he would give him notice of that hearing. The evidence was objected to so far as it tended to vary the submission, but was admitted so far as it tended to raise any presumption of fraud. The defendant admitted that he told the plaintiff he would have such notice ; but said he was led to suppose the plaintiff did not intend to attend, and forgot to notify him. The defendant’s evidence tended to prove that the presidents of said banks and the defendant together went to the office of said Adams some days before April 13, 1877, and there furnished him with all the facts on the part of the creditors and the savings bank. No other creditors were notified, and no others attended; nor did the president of the Springfield bank appear for any creditor other than said bank ; but the interests of that bank were like those of .the unrepresented creditors. It was contended for the plaintiff that the failure to notify the plaintiff was a fraud on him, and that having had no notice he was not bound by Adams’s decision. The defendant contended that he was guilty of no fraud in the premises.</p> <p>The court charged that the provision in the deed for a signing by all the defendant’s creditors, referred to individual and not partnership creditors; that mere failure to notify the plaintiff of the hearing would not render the deed invalid as against him ; that if the arbitrator was furnished with the facts on the part of the creditors on one hand, and the trustees of the savings bank on the other, the failure to notify the plaintiff did not affect him injuriously ; that if the failure to notify was designed on the part of the defendant as a means of depriving him of some right, he should be subjected to the consequences of having attempted a fraud ; that if, on the other hand, the failure to notify was for the cause the defendant assigned, and if the failure did not result in a partial presentation of the facts, then the failure would not invalidate the deed.</p> <p>To the ruling of the court and the foregoing charge the plaintiff excepted.</p> <p>Yerdict for the defendant.</p> <p>The deed of composition never became binding on the plaintiff, because not all creditors came “ into the arrangement.” Creditors of the firm were the defendant’s creditors. Dauehy v. Goodrich, 20 Yt. 127 ; Cooling v. Noyes, 6 T. R. 263 ; Spooner v. Whiston, 8 Moore, 580 ; Lewis v. Jones, 4 B. & C. 506.</p> <p>Notice to the plaintiff was essential to the validity of the award. Morse Arb. 117 et seq.; Hollingsworth v. Leiper, 1 Dallas, 161 ; Crowell v. Davis, 12 Met. 293 ; Lutz v. Linthieum, 8 Pet. 165; Falconer v. Montgomery, 4 Dallas, 232, and cases passim. It was not necessary for the submission to provide for notice. The right to notice sprang from the agreement to submit. Flmendorf v. Harris, 23 Wend. 628 ; Peters v. Newkirk, 6 Cow. 103.</p> <p>The court erred in submitting the question of fraud to the jury. Without notice the arbitrator acquired no jurisdiction.</p> <p>The defendant did obtain the signatures of all his creditors. It was not necessary for the firm creditors to sign. But the provision for the signing of all was for the defendant — not for his creditors.</p> <p>It is necessary, unless Otherwise agreed, that parties should have notice and an opportunity to be heard ; but here it must be considered as having been otherwise agreed. Otherwise the clause in the submission, “ he to be furnished ”, &c., would mean nothing, and agreements must be so construed, if possible, as to give effect to every part. Thrall v. Newell, 19 Yt. 202. Besides, the application of the money paid as a dividend was a waiver.</p> <p>The verdict disposes of the question of fraud.</p>

Trespass qua. clau. in four counts for entering and cutting grass, in the years 1871-4, each count being for the entering and cutting in one of the four years. Pleas, general issue, and license. Trial by jury, May Term, 1878, Barrett, J., presiding.

<p> Seduction. Proof of Loss of Service. </p> <p>In case by a woman whose husband had been more than seven years absent and unheard irom, for the debauchment of a daughter who was thirty-one years old, the testimony on the part of plaintiff tended to prove that the daughter had always lived at home with plaintiff, had assisted her about her household work, had done errands for the family, had worked in a neighboring factory most of the time since she was fifteen years old, and had paid her wages to plaintiff, who had used them in the support of her family. A verdict was directed for defendant. Held, that on the evidence the daughter was de facto plaintiff’s servant, and that the direction of a verdict was erroneous.</p>

<p> Bills and Notes. Statute, of Limitations. </p> <p>A promissory note payable “ five months from date,” but bearing the written consent of the makers that the payee may collect at any time “ by discounting a proportional amount of interest that shall have been paid in advance”, may be sued, and the Statute of • Limitations begins to run thereon, at once, without demand and without tender of such “ proportional amount.”</p>

<p> Husband and Wife. Wife’s Right to Her Clothing. Evidence. Presumption. Damages. </p> <p>Plaintiff and his wife agreed to separate, the plaintiff agreeing to give the wife a sum of money and such part of the household furniture as they might agree on, and she agreeing to release all right to his property. The wife went to defendant’s, and there committed suicide, whereupon plaintiff demanded a bed, bedstead, baby-wagon, certain furniture and the clothing left by her, and brought trover to recover for the same. There was evidence tending to show that defendant bought the bed, bedstead, and baby-wagon of the wife long before the separation, paid her for them and took them into his possession, and that plaintiff knew it, but made no claim to them till after the wife’s death. The court charged that if they were sold without plaintiff’s knowledge or consent, and without his subsequent ratification, he could recover, but that if he consented before or after they were taken away, he could not. Held, erroneous, for that the jury might have understood that consent or ratification, to avail defendant must have been express, whereas they might be inferred from facts such as the evidence tended to show.</p> <p>The court charged that before the separation the wife’s clothing was plaintiff’s property for the use of the wife, and.not the wife’s, either to sell or to give away, and, that as it was not subject to division under the alleged agreement, it remained the plaintiff’s property thereafter, unless there was some arrangement between them whereby it was to become hers and cease to be his. Held, that although while husband and wife live together the husband may, perhaps, have control of the wife’s clothing to the extent indicated by the charge, yet, as in case of divorce, or death of the husband, the wife’s clothing becomes her property, and as here the ■ separation was intended to be final, the plaintiff, in permitting the wife to leave him and take her clothing with her, might be presumed to have relinquished his right to her clothing ; and that the charge being' nearly or quite equivalent to a direction to find for the plaintiff upon that point, was erroneous.</p> <p>One of the demanded articles of clothing was a shawl. Plaintiff, to show its newness offered in evidence copies of his account with a merchant wherein the shawl was charged ; and testified that they were copies given him by the merchant at some time subsequent to the settlement of the account, and to the wife’s death ; that they were the only bills of items he had received, he having received a mere memorandum of the balance at the time of settlement; and that he knew, while the account was accruing that his wife was getting articles there of the kinds charged, but did not know of the purchase of the shawl till some time afterwards. Held, that as the entries were not shown to have been made in the regular course of business, nor to have been contemporaneous with the principal fact, they were inadmissible.</p> <p>Plaintiff testified that the shawl was paid for by wool that was taken from sheep that he gave to his wife, and that she took care of. There was no evidence as to who kept the sheep. The court charged that the presumption was that ii the wife took care of the sheep the husband kept them. Held, that there was no such presumption ; that, as the sheep were the wife’s, the wool would be hers also, in the ab" sence of any showing to the contrary ; and that when she exchanged it for the shawl, the shawl became hers, especially as the purchase was sanctioned by the husband by his allowing her to keep the shawl, and take it away with her.</p> <p>As to damages the court charged that if plaintiff was entitled to recover, he could recover the value of the property at the time of conversion — not what the property would bring at auction, as that was not the test, but its “ worth as property for the purposes for which such property ” existed, “ for which it was made, and for which it was held.” Held, that the rule stated would have been applicable had the wife been alive and living with the plaintiff, but that as she was dead, and as the clothing was therefore worth no more than any second-hand clothing of like kind and in like condition, the charge was erroneous.</p>

<p> Mortgage. Application of Payments. Effect of Levy and Set-off. </p> <p>In assumpsit on promissory notes originally given to another than plaintiffs for the purchase-money of certain premises, and secured by mortgage on the premises purchased, it appeared that after the notes were given, and after defendant had executed a second mortgage on the premises to other parties, plaintiffs brought an action against defendant to recover a debt that defendant owed them, and attached the premises. Proceedings had then been instituted for foreclosure of the second mortgage, and a decree had passed. Plaintiffs, to protect their attachment, paid the amount of that decree. Their action then proceeded to judgment, and execution was issued and levied on the premises, subject to said mortgages and defendant’s right of homestead. Afterwards plaintiffs, to protect their attachment and levy, paid the notes in question, and filed a bill to foreclose the mortgage by which they were secured. Defendant, to protect his homestead, filed a cross-bill praying that the mortgage debt be apportioned between the homestead and the remainder of the premises, and the apportionment was accordingly made. Defendant thereupon redeemed the homestead, and plaintiffs took the residue of the premises under decree of foreclosure. It appeared also that the value of the residue of the premises after deduction of the homestead was greater than the sum due on the first mortgage after deduction of the sum paid to redeem the homestead. Held, that the notes secured by the first mortgage were to be first paid, and that as the value of the residue of the premises was greater than the sum due on the notes, the notes had been fully paid.</p> <p>Held, also, that by the levy and set-off plaintiffs became the legal owners of the equity of redemption in the premises, in legal effect the purchasers of the premises subject to the mortgages, and that, as between them and defendant, the mortgage belonged to plaintiffs to pay.</p>

Debt on judgment brought at the December Term, 1878. The defendant was therein summoned to answer to Francis F. Holt, Elisha Hazen, Yolney Thurstin, and others, partners in trade under the firm name of F. F. Holt & Co., in whose favor the judgment was alleged to have been rendered. The defendant pleaded that said Thurstin was dead when the action was brought.

<p>Assumpsit. The declaration alleged that on and after February 14, 1865, there was at Windsor a corporation of the name of the Windsor Manufacturing Company, the capital stock of which was then and ever after mainly owned by the defendant, who was then and ever after the manager of its business ; that on May 9, 1865, the defendant, knowing said stock to be worthless, and intending to defraud the plaintiff, proposed to him to sell him a part thereof, and falsely assui’ed him that said company was doing a good and profitable business, and that an investment in its stock would be safe and profitable ; that the plaintiff, relying on said representations and assurances and believing them to be true, purchased of the defendant one hundred shares of said stock for the price of $10,000, which he then and soon afterwards paid ; that plaintiff then was, and for some time prior thereto had been, a lieutenant in the navy of the United States and in receipt of the emoluments of that office, and on June 21, 1865, sailed for Europe, where he remained until July 21, 1866, when by advice of defendant he resigned said office ; that the defendant, to induce the plaintiff to resign as aforesaid, and in order to get his money, assured him that if he would do so, said company would employ him to solicit contracts and transact business with governments in Europe in behalf of said company, on a salary not'less beneficial to him than the emoluments of said office, and that the earnings and prospects of the company would insure him a more liberal pecuniary gain than said office would, which assurances were false and by defendant known to be so ; that the plaintiff resigned as aforesaid in reliance on said assurances ; that the plaintiff remained in Europe in the service of said company until June 29, 1867, when by direction of defendant he returned to said Windsor ; that he thereupon examined the affairs of said company, and found that the company had not been prosperous, but otherwise, that the stock therein had been worth little or nothing ever after January 1, 1865, and investments therein unprofitable and unsafe, that the prospects of the company were very forbidding, and that all that was well known to the defendant; that the plaintiff thereupon immediately communicated what he had learned to the defendant, and told him that he could not longer remain connected with said company; that the defendant admitted that the company was embarrassed, but expressed a hope that by good management the business might be made successful and profitable, and proposed to the plaintiff that “ if he would take hold with them at Windsor and do the best he could to build up and promote the prosperity of the company ” he should receive as compensation for his services the same salary he had received while in the service of the company in Europe, to wit, a salary of eighteen hundred dollars per year, and in case the business was not made prosperous and remunerative to the stockholders, or in case any change was made in the business or management of said company by which the plaintiff was thrown out of employment in said company, or deprived of his salary or pay for his services, then the defendant should take back the stock sold to the plaintiff as aforesaid, and pay the plaintiff the money he had paid therefor; that that proposition was then accepted by the plaintiff, and then became binding between him and the defendant, and was in lieu of any claim or cause of action that the plaintiff had against the defendant for the fraud whereby the defendant had obtained the plaintiff’s money as aforesaid ; that in consideration of the defendant’s said promise the plaintiff then entered upon the service of said company under direction of the defendant, and “ took hold and did the best he could ” to promote the prosperity of the company, and continued therein with the utmost skill and fidelity until October 1, 1869, when the defendant “ without law or right ” dismissed him from the service of said company, and stopped his salary from and after that day, but leaving the sum of two hundred dollars for his services under said contract unpaid ; that by means thereof the plaintiff was thrown out of employment from that time forward and deprived of his salary as provided for in said contract; that on November 8, 1869, plaintiff offered said shares of stock to the defendant, and offered to transfer them to him, and demanded of him the money paid therefor, but that the defendant refused to comply with the plaintiff’s request, and refused to pay said money or any part thereof.</p> <p>The defendant demurred. The court at the December Term, 1879, Barrett, J., presiding, overruled the demurrer, and adjudged the declaration sufficient; to which the defendant excepted.</p> <p>The defendant’s promise was without consideration. It was plaintiff’s duty as a hired servant of the company, and for his interest as a stockholder, to do what he could to make the company prosperous. Promises were not mutual: plaintiff promised nothing. 1 Chit. PI. 297. There was no benefit to defendant nor damage to plaintiff. The frauds alleged furnish no consideration. It does not appear that-defendant admitted any fraud, or under'-stood that he was compromising any.</p> <p>If the plaintiff was discharged as alleged, he has his remedy by action against the company.</p> <p>It is not alleged that any of the contingencies on which defendant was to take back the stock, &c., have happened. An act of the agent of the company, done “ without law or right,” was not one of the contingencies.</p>

<p>Appeal from the Court of Chancery.</p> <p>The bill alleged that on January 6, 1874, the orator bought conditionally of the defendant certain livery property for $8,000, of which he paid $500 down, and for the balance of which he gave his five promissory notes for $500 each, payable one on April 1, then next, and one every six months thereafter, and secured by lien on the property then conveyed ; that the orator paid the first note at maturity and a part of the second, but did not pay the third ; that after default in payment of the third note, the defendant called on the orator for payment or further security, and told him that if he did not pay or give such security he should, take possession of the property; that on May 26, 1875, it was agreed that the defendant, in payment of the orator’s indebtedness, should take the property then in the orator’s possession whereon the defendant had a lien, and the orator’s note for $500, payable April 1, 1876, secured by a mortgage on certain land in Minnesota, if the orator’s title thereto should turn out to be good or otherwise by the name of a good signer, and should leave the original unpaid notes in the hands of his attorney pending the inquiry as to the title to the Minnesota land; that it was also agreed that if the orator could not give such security for the payment of the note, the defendant should receive payment thereon ; that the note and mortgage were accordingly executed and delivered to the defendant, and the original notes placed in the hands of the defendant’s attorney, as agreed ; that on May 31, the defendant, not regarding said agreement, brought an action in assumpsit on the orator’s original indebtedness, and caused such of the orator’s personal property as he could find to be attached therein, and threatened to attach other property if he could find it, and to prosecute said action to final judgment; that the orator believed the defendant intended to procure said original notes from his attorney, and transfer such of them as were not due to some innocent party, and so compel the orator to pay them again ; that the orator’s title to the Minnesota land was good, and that, if it were not, the orator would procure a good signer to his note of May 26, or would pay it. Prayer, that the defendant be restrained from commencing or prosecuting any suit for the collection of the original notes, and from making any transfer of them, and for general relief.</p> <p>The answer admitted the allegations of the bill, but alleged that before the alleged agreement of May 26 was made, the orator, having exchanged a part of the property on which the defendant had a lien for other property, with the defendant’s consent, had agreed that the property acquired by such exchange should be substituted in place of the property given therefor, as security for the orator’s indebtedness ; that it was agreed on May 26 that the orator should surrender the property acquired by such exchange, as well as what defendant sold him, and the possession of the stable ; that on May 27, the defendant applied to the orator for possession of the property, when the orator denied that he had •agreed to give up the substituted property, and refused to yield possession ; that on May 31, the defendant brought action, and attached other property as alleged ; that he then left the orator’s note of May 26 at the orator’s house with the orator’s wife, and that it came to the orator’s possession; and that a day or two after the action was brought the orator brought part of the property that was covered by the lien to the defendant, and notified him that he could have the rest of it by calling for it.</p> <p>The answer was traversed and testimony taken.</p> <p>At the December Term, 1877, the court, Barrett, Chancellor, found that the original notes were settled by the agreement of May 26, in pursuance of which the defendant had taken possession of some or all of the property, and received the note of that date, and the pay thereon; that the only remaining question was whether the orator had delivered to the defendant all the property that by that agreement was to be delivered ; that that question did not enter into the cause at issue. It was accordingly ordered that the defendant be perpetually enjoined; that the notes be can-celled and given up to the orator; and that the orator recover his costs. •</p> <p>Appeal by the defendant.</p> <p>The agreement of May 26 was fraudulent, the orator having surreptitiously taken away a part of the property that he pretended to reconvey to the defendant.</p> <p>The orator rescinded that agreement by refusing to deliver that property.</p> <p>Acceptance of payment of the note of May 26 must be considered a ratification of the agreement by the defendant. The orator must therefore be entitled to the relief sought.</p>

These cases were in book account for medical attendance on the defendant’s wife. The facts reported by the auditor were, so far as material, as follows: The plaintiff in each case offered in evidence before the auditor the depositions of Henry O. Marcy, Eliza J. Young, William H. Briggs and Roland Litchfield, and an agreement of parties, the cases being substantially alike, that the depositions to be taken in one case might be used in both.

Habeas Corpus, coram Barrett, J., and by him adjourned to this term. The relator was indicted at the September Term, 1874, of Washington County Court for burglary committed upon tbe Barre Bank. A warrant was issued on the indictment for his arrest, and put into the hands of the sheriff of said county.

<p>This was a petition to the County Court for the laying put of a highway in the town of Hartland by the side of the Woodstock Railroad, and in part on the land of the Woodstock Railroad Company.</p> <p>The commissioners reported that the railroad company made no claim for land-damages, but asked only that the highway should be “ so constructed as to render the railroad no more liable to obstruction or damage by the sliding of earth ” from the embankment of the highway, than it was before from the sliding of earth from the old embankment; and that they had accordingly laid out a highway to be “ so protected by bank-wall or otherwise, as to protect ” the railroad in the manner required.</p> <p>The petitionee moved that the report be set aside, for that the commissioners had laid out the highway to be constructed in the manner stated, instead of awarding money in payment of land damages; for that, by the report, the town would be liable to the railroad company for the land taken, if the highway were not so constructed ; for that there was no way provided to determine whether or not the highway, when built, was in accordance with the report; and for that there was no way provided for the ascertainment of the amount of the land damages, if the town should become liable to pay.</p> <p>The court at the February Term, 1878, Barrett, J., presiding, overruled the motion and accepted the report; to which the defendant excepted.</p> <p>The commissioners had no right to prescribe a mode in which the highway should be constructed, .instead of awarding land damages. State v. Williston, 31 Vt. 153.</p> <p>They had no right to impose on the town any burden greater than the law would impose.</p> <p>In a case like this no question can be brought here on exceptions that, before the statute, could not have been brought up on certiorari. Sts. 1872, No. 38, s. 2.</p> <p>No question could be brought up on certiorari, except questions of law. Royalton v. Pox, 5 Vt. 458 ; Adams v. Newfane, 8 Vt. 271; Paine v. Leicester, 22 Vt. 44.</p> <p>It was not necessary that there be an' award of damages in money. Livermore v. Jamaica, 23 Vt. 361; Comp. Sts. c. 22, s. 69: Rev. Sts. c. 20. s. 53 : Gen. Sts. c. 24. s. 78.</p> <p>The town was bound by the law, independently of the report, to make a sufficient road.</p> <p>The acceptance of the report was a matter of discretion, and not revisable.</p>

<p> Appellate Jurisdiction of County Court. </p> <p>In general assumpsit brought before a justice of the peace on a declaration alleging an indebtedness, &e., for $20 and a writ laying the ad damnum at the same sum, plaintiff furnished a specification of balance of $19.69 due for work. On cross-examination she produced her original account, whereby it appeared that her charges were much more than $20, but that the credits of payments reduced the balance to the sum specified. Held, that the sum of her charges constituted the matter of inquiry, and that the action was appealable.</p>

<p>Appeal from the Court of Chancery.</p> <p>The bill alleged execution of a mortgage of the premises in question from the defendants Lauren and Orinda to the defendant Frances, to secure payment of said Lauren’s promissory note for $400 ; subsequent acquirement by one Alfred Smith of a mechanics’ lien on said premises for $142.48; due proceedings thereon by way of memorandum, attachment, judgment, record, &c., to establish the same as a mortgage ; and subsequent conveyance of said premises and assignment of said judgment from said Smith to the orator. The bill further alleged that the said Frances employed her brother, Norman F. Shedd, who had acted as her agent in loaning money and taking and discharging mortgages, as her agent to loan the money for which said mortgage was given ; that said Frances loaned said Lauren only $380 and retained $20 as a bonus, so that said note was valid for the sum of $380 only; that the orator applied to said Shedd to know if he would receive the sum due on said mortgage, and Shedd refused to receive it; that the orator afterwards by his agent, Frederick W. Marsh, tendered the said Frances $477 which was more than the sum justly due on said note; that the said Frances refused to receive it; and that the orator had kept the amount so tendered ready for said Frances, and brought the same into court. Prayer for an accounting as to the sum duo on said mortgage, for permission to redeem, and for general relief.</p> <p>The bill was taken as confessed as against the defendants Lauren and Orinda.</p> <p>The defendant Frances answered, denying that the amount of the judgment recovered by said Smith had become a mortgage lien as alleged; denying that she loaned less than $400, denying that said note was valid for $380 only, and alleging that she was informed and believed that said Lauren employed said Shedd to obtain said loan, and agreed to allow and did allow him something for his time and trouble in obtaining said loan ; alleging that nothing had ever been paid on said note; admitting that Marsh tendered her $477, saying, “ I tender you $477 in full payment of the amount due you on the mortgage you hold on the Lauren Bolles place ” ; and denying that the sum tendered was sufficient to pay the sum due on said note.</p> <p>The orator afterwards filed a supplemental' bill alleging that, after the said Frances refused to accept the money tendered as alleged, the orator, having no safe, deposited said money with said Marsh, “ of the firm of Robbins & Marsh ” for safe keeping, and notified said Frances thereof; that said Marsh immediately deposited said money in the safe in the store of said Robbins & Marsh, which was near the orator’s residence, where it remained until it was stolen and carried away by burglars, who afterwards broke into said store and safe; and that the money was so lost without fault on the part of the orator. Prayer for permission to redeem without further payment or tender, and without bringing the money into court.</p> <p>The defendant Frances again answered, alleging that if the orator had kept the tender good by bringing the money into court, as in the original bill alleged, it would not have been lost; alleging that said safe and store were poorly fastened, weak, and insecure, to the orator’s knowledge, that the money was thus lost by reason of the orator’s negligence in so depositing it, and that in any event the orator and not the defendant should sustain the loss.</p> <p>That answer was also traversed and testimony was taken upon the question of usury and relative to the character of the safe, and the situation and condition of the store.</p> <p>At the December Term, 1878,-the court, Barrett, Chancellor, decreed, pro forma and without hearing, that the orator be permitted to redeem by paying or tendering the sum due on the mortgage note ; that the supplemental bill be dismissed ; and that the costs should be determined in the final decree. Appeal by the orator.</p> <p>The acts of Shedd in the matter of the $20 were the acts of his principal. Austin v. Harrington, 28 Yt. 180 ; Gollamer v. Goodrich, 30 Vt. 628.</p> <p>The transaction was between Bolles and the defendant. The orator does not claim that usury has been paid to the defendant, but that she let Bolles have only $380, and that she should receive only that sum with interest thereon.</p> <p>It is not required in chancery that the tender should be brought into court. Washburn v. Dewey, 17 Vt. 92 ; McDaniel v. Reed, 17 Vt. 674, 681.</p> <p>Where the sum tendered is sufficient, the loss of it, if lost without fault on the part of the debtor, should in equity be borne by the debtor. See Story Bailments, 26-28, 54, 66, 67, 228; Finucane v. Small, 1 Esp. 315 ; Chip, Cont. 87.</p> <p>The orator has failed to show that Mrs. Baker let Bolles have only $380, and so failed to show payment of usury. 2 Parsons Bills, 100 ; Collame-r v. Goodrich, 30 Vt. 628.</p> <p>But in any event the orator is not entitled to a reduction of' the $20. 2 Parsons Bills, 407 ; Ward v. Whitney, 32 Vt. 89 ; Churchill v. Cole, 32 Vt. 93; Cady v. Goodnow, 49 Vt. 400; Lamoille County National Bank v. Bingham, 50 Vt. 105 ; Reed v. Eastman, 50 Vt. 67.</p> <p>The orator’s offer made through Marsh cannot avail as a tender. It was not an offer of the sum due; it was conditional; and the money was not brought into court with the petition, nor kept for the defendant. An offer, to be good as a tender, must be unconditional. 1 Hilliard Mort. 100’; Wendell v. New Hampshire Bank, 9 N. H. 404; Holton v. Brown, 18 Vt. 224. Money tendered should be brought into court. 2 Greenl. Ev. s. 600 ; Pillsbury v. Willoughby, 61 Me. 274; Woodcock v. Clark, 18 Vt. 333, 336 ; Perry v. Ward, 20 Vt. 92, and cases passim.</p> <p>Mrs. Baker was willing to allow the orator to redeem by paying her the sum due on her mortgage. He should therefore be denied costs, and pay costs to the defendant. Smith v. Bailey, 10 Vt 163 ; Smith v. Blaisdell, 17 Vt. 199 ; .Cree v. Lord, 25 Vt. 498.</p> <p>The orator is in no event entitled to the relief prayed for in the supplemental bill. The title to the money was not changed. It was still in the orator, and the loss is his. 2 Bouv. Inst. ss. 243, 385, 2439, 2927 ; Law v. Jackson, 9 Cow. 641; Curtiss v. Green-banks, 24 Vt. 536 ; Town v. Trow, 24 Pick. 168 ; Stowell v. Read,-16 N. H. 20. Besides, the money was lost through the orator’s negligence.</p>

Trespass for false imprisonment on November 19, 1877. Plea general issue, and plea of regular process returnable to the County Court then “ next to be held at St. Johnsbury, within and for the county of Caledonia, on the first Tuesday of June, 1878,” issued as a capias before the time in the declaration mentioned, to wit, on November 19, at suit of the defendants on affidavit in due form ; placing of the same in the hands of an officer after-wards on the same day “ with…

Ttespass and trover for a quantity of poplar logs, appealed from the judgment of a justice of the peace, June 29, 1878, and duly entered in County Court at the December Term then next ensuing. The case was referred and the referee reported, so far as material, in effect as follows : In March, 1877, George W. Woodworth sold and conveyed certain land in Norwich to the plaintiff, reserving certain timber then standing thereon.

This was an appeal from an order of removal of one Franklin Jackson from the plaintiff to the defendant town. Plea, that the pauper’s legal settlement was not in, and that he was not legally chargeable to, the defendant town at the time of removal. Trial by jury, May Term, 1879, Barrett, J., presiding.

Trustee Process. Á commissioner was appointed, who reported the following facts : On April 19,1876, the trustee purchased of the defendant an undivided half of a farm in Bridgewater, in which the defendant had a right of homestead, the homestead not being set out, and of certain personal property thereon, including, among other things, a yoke of oxen, a yoke of steers, seventy-two sheep of the value of $172, and a grindstone of the value of $9, which the defendant had used…

<p>Cotenant. The declaration counted on a covenant against incumbrances in a deed from the defendant to the plaintiff Florette. The case was referred, and the referee reported in substance as follows: „</p> <p>On August 26, 1871, the defendant by warranty deed containing the usual covenants, including a covenant against incumbrances, conveyed to the plaintiff Florette certain premises in Braintree that had been conveyed to him by Mansel Heselton and wife ; and said Florette, in payment therefor, conveyed to the defendant a farm which had before been conveyed to her by her father, Leonard Fish, and with her husband executed to him a promissory note for $462, which said Leonard afterwards paid. On June 11, 1872, the plaintiffs by like deed conveyed the premises to Lucia M. Fish, the mother of said Florette, and wife of said Leonard. The premises when conveyed by the defendant as aforesaid, were subject to a mortgage executed by Heselton and wife to Elihu Hyde iff 1869, conditioned for the payment of two promissory notes for $250 each, payable in one and two years respectively, with interest, one of which only had been paid. In December, 1875, Hyde brought a petition for foreclosure against the Fishes and others, but not against the Heseltons nor the Coles, and in the following January obtained a decree for $313.29, the sum due in equity, and $28.55 costs, to be paid before January 1,1877, with interest. On November 1, 1876, Hyde sold and assigned that decree to Ephraim Thayer for $350, Thayer acting therein for said Leonard and at his request; and afterwards, and before this action was brought, said Leonard, acting therein for his wife, paid Thayer the amount of the decree in full, with interest. The conveyance from said Leonard to said Florette, and from her to said Lucia were without consideration, and they and the holding of title by said Florette were for the convenience, and at the request, of the Fishes, said Leonard doing all the business in connection therewith, and the plaintiffs having nothing to do with it, except to execute deeds, &c., as desired. This action was brought and prosecuted by said Lucia, in her own behalf and for her own benefit, and with the privity and consent of said Leonard. The referee found that if the plaintiffs were entitled to recover, they should recover $841.84, with interest from January 1,1876.</p> <p>While the action was pending the Fishes, in consideration that final judgment should ultimately be rendered therein for the plaintiffs for the full amount of damages found by the referee, filed in court a release of the defendant from all causes of action that they or either of them had, or could have, in their own names to recover damages consequent on a breach of any of the covenants in his deed to said Florette.</p> <p>The court at the December Term, 1879, Powers, J., presiding, rendered judgment on the report for the plaintiffs for nominal damages and costs; to which the plaintiffs excepted.</p> <p>Although the action was brought on the covenant against incumbrances, yet, as it was referred, such judgment will be rendered as the plaintiff's would be entitled to in view of any amendment that might properly have been made. The declaration might properly have been amended by adding a count on the covenant that the plaintiff was the sole owner, and had good right and title to convey, &c. Boyd v. Bartlett, 36 Vt. 9.</p> <p>Covenant for title “ is an assurance to the purchaser that the grantor has the very estate in quality and quantity that he purports to convey.” Lord Ellenborough in Howell v. Richards, 11 East. 641; Richardson v. Dorr, 5 Vt. 20 ; Mills v. Catlin, 22 Vt. 106; Clark v. Conroe’s Est. 38 Vt. 475. And see Rawle Cov. 81, and Peters v. Bowman, 98 U. S. 56. Thus, the covenant for title was broken as soon as made, by the existence of the mortgage to Hyde.</p> <p>Thus, regarding the action as founded on either covenant, it must be conceded that the plaintiffs are entitled to nominal damages. But we contend that they are entitled to full damages under either covenant, especially under the covenant for title. The rule that precludes the assignee of a chose in action from maintaining an action thereon in his own name is purely technical, and is now effectually abrogated by the practice of permitting him to sue in the name of the holder of the legal interest. That practice is as applicable to broken covenants as to any other chose in action. The purchaser should be permitted to sustain an action in the name of the original covenantee, especially where, as here, the covenantee held rather in trust for the purchaser. Rawle Cov. 357, 358 ; Clark v. Swift, 3 Met. 395; Alexander v. Schreiber, 13 Mo. 271; Peters v. Bowman, supra. Such a rule presents no difficulty in pleading, as in declaring on the covenants of seisin and for title, it is sufficient in assigning a breach, to negative the words of the covenant generally. Rawle Cov. 82; 2 Saund. 181a. Were the rule otherwise the covenants called personal, which ar'e broken, if at all, when made would be of little valué to those claiming under the original covenantee. While waiting for an eviction so as to avail themselves of the covenant of warranty, the covenantor might become insolvent, or go beyond seas, or the like.</p> <p>The conveyance of the land implies the transfer of the covenant under the rule that assignment of the principal thing carries with it the accessory. Rawle Cov. 358; Alexander v. Schreiber, supra.</p> <p>Again, under the finding that the action was brought by Lucia in her own behalf, &c., she and her husband having filed a discharge of the defendant, the plaintiffs will be permitted to recover full damages, as the plaintiffs did in Smith v. Perry, 26 Yt. 279, 294.</p> <p>The only matter complained of is the breach of the covenant against incumbrances. Where the incumbrance has not been extinguished by the purchaser, and there has been no eviction under it, the purchaser will recover only nominal damages, “ inasmuch as it is uncertain whether he would ever be disturbed.” 4 Kent. Com. 476 ; Prescottv. Trueman, 4Mass. 627 ; Delayergne v. Norris, 7 Johns. 358 ; Stanard v. Eldridge, 16 Johns 254; Richardson v. Dorr, 5 Vt. 9; Potter v. Taylor, 6 Vt. 676. The payment of the decree by Leonard does not aid the plaintiffs, as the payment was not made in their behalf.</p> <p>Nor does the filing of the release aid them. The action — to recover more than nominal damages — was brought by improper parties, and the release will not operate a substitution. Booth v. Starr, 1 Conn. 244.</p>

<p>Trespass for eight sheep and five lambs. Plea, general issue, and plea alleging that the sheep, &c., were taken in the inclosure of West, damage feasant, by Hanson, who was employed in that behalf by West, and by West driven to a common pound and there impounded, and that within twenty-four hours West gave, the plaintiff notice thereof. Replication de injuria. Trial by jury, June Term, 1878, Powers, J., presiding.</p> <p>The plaintiff introduced evidence tending to prove the alleged taking, and rested. The defendants then introduced evidence tending to prove that the sheep, when taken, were wrongfully in West’s inclosure, and evidence tending to prove the other allegations of the plea, and rested. The plaintiff then offered to prove that after the sheep were impounded West proceeded not in accordance with the statute, but procured the sheep, «fee., to be appraised, and advertised and sold them in his own name. To that the defendants objected for that under the replication the plaintiff could introduce only evidence denying the allegations of the special plea; but the court overruled the objection and admitted the evidence ; to which the defendants excepted.' It was conceded that the proceedings as to impounding and notice were legal as far as set forth by the special plea. After the evidence was all in the plaintiff, by leave of court, became nonsuit as to Hanson. The court then directed a verdict against West, and submitted to the jury the question whether the sheep, <fcc., were wrongfully in West’s inclosure, which the jury answered in the affirmative.</p> <p>The admission of evidence to prove irregularities subsequent to the notice was erroneous. The replication was simply a denial of what was alleged in the plea. There was no other issue, and to make any other the plaintiff should have replied specially. On the issue joined, the matter there alleged was a justification. Braley v. Burnham, 47 Vt. 717; Collier v. Moulton, 7 Johns. 109 ; 1 Chit. PI. 564, et seq.; Oystead v. Shed, 12 Mass. 505.</p> <p>As the plea was good the replication was bad. Griswold v. Sedgwick, 1 Wend. 126 ; Coburn v. Hopkins, 4 Wend. 577; Hyatt v. Wood, 4 Johns. 150; Lytle v. Lee, 5. Johns. 112; 1 Chit. PI. 565.</p> <p>The evidence was properly admitted. The pith of the replication de injuria is in the averment that the defendant “ did the act of his own wrong,” and if the plaintiff be not permitted to prove the wrongful act, that averment is without meaning.</p> <p>The declaration averred not only a taking but a conversion. The plea sought to justify the taking. The replication denied the justification and alleged a wrong on the part of the defendant; and under that allegation' it was proper to show a subsequent conversion. It would seem proper to prove that the defendant took the property for the purpose of converting it instead of for the lawful purpose alleged in the plea; for, if in the end he did convert it, the presumption is that he took it for that purpose.</p>

Trustee Process. A commissioner was appointed, who reported that the trustee had goods, &c., in his hands at the time of service of process “ according to his disclosure ... to wit ”, that he “ became indebted to the defendant ” on January 19, 1878, in the sum of $45.95, which he still owed with interest.