Volume 53 — Vermont Reports

This case was heard on bill, answer, traverse and testimony, at the March Term, 1879, Redfield, Chancellor. Decree, proforma, dismissing the bill, with costs, and appeal.

This case was tried at the March Term, 1880 ; a jury trial; and a verdict was ordered by the court for the plaintiff, Kedfield, J., presiding. Declaration in trespass, &c., founded on sections one, two and six, No. 56, session laws of 1876.

<p> Adoption of Heir. </p> <p>1. Act of 1870, No. 8, as to changing names, and constituting persons heirs-at-law,* construed.</p> <p>2. Under this statute the same person, in signing the instrument of affiliation, may act in the double capacity of guardian and adopter.</p>

<p>Note. Assignee. Witness. Gen. Sts. c. 36, s. 24 (one party deceased'). Witness Act Construed.</p> <p>1. The payer of a negotiable note is not a witness to the fact of a payment, the note having been assigned subsequently, the payee being dead, and suit brought in the name of the assignee.</p> <p>2. When one party to a contract is dead, and the contract has been assigned, so that the estate, or heirs, have no interest in it, the assignee stands upon the proviso of s. 24, c. 36, Gen. Sts., in all cases where the contract is the cause of action, in issue and on trial, and the survivor cannot testify, — otherwise where the contract is a matter collateral to the cause of action. 44 Vt. 566; 46 Vt. 677.</p> <p>3. Taylor v. Finley, 48 Vt. 78, on the extreme limit of admissibility.</p>

This was an action on the case for disturbing a water right. Plea, the general issue. Trial by jury; and verdict for defendant ; September Term, 1878, Redfield, J., presiding.

This case was tried at the March Term, 1878; Redfield, J., presiding. This was an indictment for the crime of arson. Held: waived. State v. Daniels, 44 N. H. 383. In State v, ffascall, 6 N. H. 353, juror was drawn more than twenty days before the sitting of the court. No exceptions taken until after verdict; held, to be waived. Rollins v. Arms, 2 N. H. 351; Finaltyv. The State, 7 Eng. (Ast.) 630.

This case was heard on demurrer to the declaration, at the March Term, 1880, Redfield, J., presiding. Demurrer overruled, and judgment on new count in the declaration for the plaintiff, for his damages and costs. Exceptions by the defendant. NEW DECLARATION.

<p> Usury. Pleading. </p> <p>1. Usury paid on a note, not included in it, nor indorsed on it, may be recovered back by the payer, although the note has passed into a judgment; and a plea setting up such facts is held insufficient on demurrer.</p> <p>2. And this is so, while it is true, as decided in Day v. Cummings, 19 Vt. 496, that, when the usury is included in the note, and judgment has been rendered on it, it cannot be recovered back.</p> <p>3. The party paying the usury can plead it in offset; but his neglect to do so, is no bar to his recovering it in an independent suit.</p> <p>i. Where usury has been paid on a mortgage note, and the mortgage has been foreclosed, and the usury was deducted on the making of the decree, although this was done at the instance of an attaching creditor, while the payer of the usury (the plaintiff in this suit) protested against such deduction, such usury cannot be recovered; and a plea alleging such facts, on demurrer, is held sufficient.</p>

This case was tried at the September term, 1879, Redfield, J., presiding. It was an indictment in five counts for murder of William W. Murcommock. Plea, not guilty; trial by jury; verdict, guilty of murder in the first degree. It appeared that the dead body of said Murcommock was found on the 13th day of December, 1878, in the town of Calais, in said county of Washington, a few rods easterly of the town line of Worcester, in said county.

This was an appeal from an order of the Probate Court for the District of Washington, to set out homestead, and was tried by the court at the March Term, A. D., 1878, upon an agreed statement of facts, in writing. The court rendered judgment, pro forma, affirming the order of the Probate Court; to which the defendant excepted. Redfield, J., presided. STATEMENT OF FACTS.

This case was heard at the June Term, 1879. Judgment was rendered on the following report, Ross, J., presiding: referee’s report. For many years previous to May, 1875, G. H. and J. M. Weeks had been extensively engaged as partners in selling goods and buying farm produce, keeping on sale such goods as are usually kept in country stores. They commenced trading at what is called Lyndon Corner, and continued to do business in a store there until said May, 1875.

This cause was heard at the February Term, 1880, Orleans County, Red field, Chancellor, on bill, answer, traverse, amended bill, traverse, and testimony. The chancellor stated, and decreed as follows ; The oratrix seeks alternative relief, upon grounds entirely distinct.

This cause was heard at the December Term, 1879; Caledonia County. Ross, Chancellor, made the following decretal order: The foregoing case was heard on bill, answer, traverse, and testimony.

This case was heard upon pleadings, — petition and answers,— and the report of the special master, Hon. Henry H. Powers.

<p>This case was heard at the December Term, 1878, Caledonia County, Ross, Chancellor, on the following report of the special master; and it was ordered and decreed that the orators have a decree for the foreclosure of the mortgage against both defendants, for the entire amount found due on said mortgage notes by the master, and the costs of suit; that defendant Fellows redeem by March 1, 1880, and defendant Langmaid by March 15, 1880 ; and in default of defendant Langmaid’s redeeming, the orators may have execution against him for the costs above what they would have been, if there had been a foreclosure the first term by confession.</p> <p>REPORT.</p> <p>From the evidence in the case I find the following facts : December 14, 1865, the defendant, Portus A. Fellows, executed a mortgage to Joel R. Sanborn, of the premises described in the petition, conditioned for the payment of the notes described in the petition. The notes were given for a part of the purchase money of said premises. Portus A. Fellows was then unmarried. In September, 1869, he married oratrix, Augusta J. Fellows. He has occupied the premises as a homestead, and had no other homestead since he purchased them. The first three notes described in the condition to the mortgage have been paid, and the interest on the other five has been paid up to December 1, 1867 ; and twenty-five dollars has been paid, and should be applied on the note falling due Dec. 1, 1870, as of March 11, 1876 ; but the same has not been endorsed. These five notes at some time, but the exact time did not appear, were sold and transferred by Joel R. Sanborn to Asa Goodenough, the father of Martha J. Good-enough and Augusta J. Fellows. Asa Goodenough deceased in 1874; and administration was taken on his estate. He left as heirs to his estate three children, and two grandchildren by a deceased child. His estate was distributed in October or November, 1875, the share of each child being 1554.79, and of each grandchild 1277.39. On the settlement of' the administrator with the heirs, the two notes described in the condition of the mortgage, and falling due Dec. 1, 1869, and Dec. 1, 1873, became the property of Martha J. Goodenough. The amount due on these notes April 1, 1879, is 1661.92. The three notes falling due Dee. 1, 1870, 1871 and 1872, on the distribution of said estate, became the property of Augusta J. Fellows, excepting an interest therein, of $155.91, which became the property of Abi J. Goodenough, a granddaughter of Asa Goodenough. To arrange the interest of Abi J. Goodenough therein, and to enable the administrator to settle with Augusta J., and Abi J., Portus A. Fellows, defendant and mortgagor, gave his note to Abi J. Goodenough for $180.91, dated Nov. 8, 1875, and paid her $25, March 11, 1876, and it was agreed by and between Augusta J. Fellows and Portus A. Fellows on the one side, and the administrator on the other, who acted as the agent of Abi J. Goodenough, that the three notes secured by the mortgage, and falling due Dec. 1, 1870, 1871 and 1872, should be held by him as security for the payment of said Fellows’ note of $130.91, which the administrator also held for Abi J. The three mortgage notes, last described, never went into the hands or possession of either the said Augusta J. Fellows, or Portus A. Fellows. The said administrator continued to hold all of said notes until some time after-wards, when the oratrix, Martha J. Goodenough, purchased said $130.91 note of Abi J. Goodenough, and received the same and the three mortgage notes last described, from the administrator, and has held them ever since. This was all done before the commencement of this suit. There is due on these three thortgage notes, deducting the $25 paid to Portus A. Fellows, March 11, 1876, not endorsed, $821.17, as of April 1, 1879. There is due on the $130.91 Fellows note, for which the three notes are held as security, as of April 1, 1879, $159.53. The proof in regard to the giving of the note of $130.91, and the pledging of the three mortgage notes for the payment of the same, was by parol; and was duly objected, and excepted to, as being within the Statute of Frauds, because relating to an interest in land, and as being an enlargement of the $130.91 note. The facts heretofore stated on ■'that subject are found on such proof alone.</p> <p>December 14, 1868, said Portus A. Fellows, before his marriage with Augusta J., conveyed two pieces of land, covered by said mortgage, to wit, about seven acres lying the south side of the road, and about ten acres called the Morse lot, lying away from the rest, to defendant Willard K. Langmaid by a warranty deed containing the usual covenants, except, that following the covenant against incumbrances, there are inserted these words; “except a mortgage to Joel R. Sanborn which I am to pay.” Langmaid paid said Fellows for these two pieces either $275, or $325 ; — (the parties did not agree as to the price in théir testimony,) and with the money so paid, said Fellows took up the two notes described in the condition of said mortgage, and falling due Dec. 1,1867 and 1868, in whole or in part. From the proof, I am inclined to think, the price was $825, arid the two mortgage notes were taken up with this money. Said Langmaid claims he let said Fellows have $75 which was used in paying the first note described in said mortgage ; but while I find he lent him $75, before he purchased said land, I do not find that skid Fellows used it in taking up or making payment on said mortgage notes.</p> <p>April 20, 1870, said Langmaid sold back to said Fellows the seven acres below the road, and another piece of land, and duly conveyed the same to him. The price of these two pieces of land was about $600. On the same day, the said Fellows mortgaged back the same land, so conveyed to him as last aforesaid ; and also the .land covered by the mortgage sought to be foreclosed in this suit, excepting the Morse lot which he had before conveyed to said Langmaid. This last mortgage was given"to secure the payment of $600, expressed in said Portus A. Fellows’ notes of that date, of $100 each, and payable in 1, 2, 3, 4, 5 and 6 years from date with interest annually. These notes are unpaid. Whether any payments had ever been made on them did not tap-pear. They are still owned by said Langmaid. Said Augusta J. Fellows joined with her husband Portus A. Fellows, in the execution of this last named mortgage. She also joined in the covenants of said deed, which are as follows : “ And further, we the said Portus A. and Augusta J. Fellows, for ourselves and our heirs and assigns and administrators, covenant with the said Willard K. Langmaid, and his heirs that until the ensealing of these presents, we are the sole owners of the premises, and have good right and title to convey the same in manner aforesaid ; that they are free from every incumbrance except a mortgage to Joel R. Sanborn, and we hereby engage to warrant and defend them against all lawful claims whatever except as above named.” It did not appear that said Augusta J. Fellows had any other interest in the premises than the homestead interest as his wife. Said Fellows makes no defence to the foreclosure in this suit. The said Langmaid does not object to a decree, in favor of Martha J. Goodenough, for two notes owned by her ; but objects to any decree against him on the other three notes, claiming that Augusta J. Fellows cannot avail herself of them against him, by reason of having joined with her husband, in the execution and in the covenants of the mortgage to him ; and that said oratrix, Martha J., so far as relates to holding them as security for the payment of the $180.91 note, stands in the rights of Augusta J., inasmuch as she took them when overdue, as did also Abi J. Goodenough. It is submitted to the Court of Chancery, to say whether he can make this defense available.</p> <p>All which is respectfully submitted.</p> <p>Jonathan Ross, Special Master.</p> <p>DEFENDANT’S ANSWER TO THE PETITION OF FORECLOSURE.</p> <p>And now comes said Willard K. Langmaid in answering the said petition, and says he admits the execution of the said mortgage by the said Portus A. Fellows to said Joel R. Sanborn, and admits that the notes described in said petition, are now the property of the said Martha J. Goodenough and Augusta A. Fellows, as this defendant is informed ; and states, that said Joel R. San-born, in his lifetime, to wit, on day A. D. 18 transferred said mortgage to Asa Goodenough, father of said Martha J. Goodenough and Augusta A. Fellows ; and that on said Asa Goodenough’s decease, said notes were assigned to said Martha J. Goodenough and _Augusta A. Fellows, as heirs-at-law of said Asa Goodenough ; and that said Augusta A. is the wife of Portus A. Fellows, defendant in said petition ; and states that on the 20th day of April, A. D. 1870, and when said Augusta A. was the wife of said Portus A. Fellows, defendant, the said Portus A. Fellows and his wife, Augusta A., joined in a mortgage to this defendant Willard K. Langmaid, for the security of certain notes executed by the said Portus A. to the said Langmaid, defendant, to wit, six notes for one hundred dollars each, payable annually, on annual interest, which notes are now due. And this defendant believes that the money so secured by said last mortgage was applied to the payment of certain of the notes described in the mortgage to Joel R. Sanborn; to what extent he is uncertain. And this defendant admits that the said Martha J. Goodenough may have a decree for the amount of the two notes she sets up as belonging to her in her said petition ; but denies the right of the said Augusta A. Fellows to hold said notes so set up in her petition as secured on said farm, until she redeems her, and her husband’s interest in their homestead in said farm, and admits she, said Augusta A., may have a decree for any balance on said notes she so holds, if any there is, after paying to this defendant, Willard K. Langmaid, what is due on his said mortgage, or at least the amount of the interest in said homestead, to wit, five hundred dollars.</p> <p>And this defendant denies that the said Martha J. Goodenough holds any equitable interest in said notes so held by said Augusta, if same were turned out to said Martha, as averred in her petition, and he, defendant, claims if same were so turned out, this defendant had a prior equitable claim to hold same for the purpose, heretofore set up in this answer; and this defendant prays for every and all relief he is entitled to in equity in the premises, to be granted by your honorable court.</p> <p>The case will be first considered independent of any statute upon the subject. It will not be claimed by the orators that a party competent to contract a binding obligation may not by his covenants in a deed, estop himself, both at law and in equity, from setting up, or obtaining the benefit of, an after-acquired tjtle as against his grantee and covenantee. But it is a very different question whether a married woman, who is incapable of making a covenant that shall bind her as a covenant, can thus estop herself. She is utterly unable to make a contract or covenant that shall bind her personally. The very ground work and basis of the estoppel is wanting. There are no covenants for the after-acquired title to feed or support. The law does not say that, although a feme covert cannot make a covenant, yet if she undertakes to make one, it shall by estoppel have all the binding force of a covenant, without beihg a covenant. As she cannot covenant directly, she cannot do it indirectly. She cannot do by acts in pais, what she cannot do by deed. She cannot do wrongfully what she cannot do rightfully. Being incapable by law of making a binding contract, she cannot by her own act enlarge her legal capacity. Such is the law, as established by sound reason, as well as by the decisions of the courts. The following cases are direct authorities in point: Wadleigh v. dines, 6 N. H. 18 ; Carpenter v. Sehemmerhorn, 2 Barb. Ch. (N. Y.) 814 ; Lowell v. Daniels, 2 Gray, (Mass.) 168 ; Wright et al. v. Shaw, 5 Cush. (Mass.) 65-6; Dominick v. Michael, 4 Sandford Ct. (N. Y.) 424 ; 6 Wend. 14 ; 1 Zabriske, (N. J.) 541 ; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167.</p> <p>It is a familiar principle of law, that if the vendor deeding real estate, when he has no title, and subsequently acquires one, it enures to the benefit of the vendee. Jarvis v. Aikens, 25 Vt. 635 ; Garlee v. HopJcins, 41 Vt. 250 ; Roberts’ Dig. p. 232, s. 71. By the law of the homestead, the interest in the same can be conveyed only by the joint deed of wife and husband. She is a legal party, to the contract, as much as the husband ; therefore, the estoppel should be applied to her, as much as to him.</p>

This case was heard at the September Term, 1879, on the report of the commissioner; Royce, J. presiding. The court, pro forma, adjudged the trustee liable for the sum of $42.73. The plaintiff sued out his writ October 26th, 1878; and it was served on the trustee Oct. 28th, by one Hibbard, a minor, who was authorized to serve it, by the magistrate signing it.

This case was heard at the March Term, 1880, Red pi eld, J., presiding. It was an appeal from the order of the Probate Court, for the probate District of Washington denying the petition to opeu the commission, and allow the petitioner to present his claim to said commissioners, for examination and allowance against Joseph Gould’s estate.

This cause was heard at the December Term, 1878, Caledonia County, on demurrer to the bill. Ross, Chancellor, pro forma, sustained the demurrer, and dismissed the bill. The bill is sufficiently stated in the opinion of the court, except it was alleged that the money, so loaned to the administrator, was used by him for the benefit of the estate, and the heirs; and prayed for a writ of sequestration to sequester the property of the estate.

<p>Debt on the official bond of a town officer. Plea in abatement. Demurrer to the plea.</p> <p>This cause was heard at the June Term, 1878, upon the demurrer to the plea in abatement. The demurrer was sustained and the plea adjudged insufficient; and -the parties pleading, ordered to answer over. Exceptions by the defendants Hazelton, Brock and Clement. Exceptions allowed and ordered to lie. The case was referred to Hon. H. Henry Powers. At the June Term, 1879, Caledonia County, Ross, J. presiding, sustained, proforma, the plaintiff’s exceptions to the master’s report; and, pro forma, rendered judgment on the report for the plaintiff to recover $616.97, with interest from March 5th, 1878, and costs; to which the defendant excepted.</p> <p>REPORT.</p> <p>J. D. Abbott, Treasurer and Town Clerk, To Town of Barnet, Dr.</p> <p>March 1,1877, To balance in Treasury, No. 1 $917.92</p> <p>From Apr. 12 to Nov. 21, From Collector, No. 2 750.00</p> <p>From Apr. 7 to Nov. 26, Of Selectmen, No. 3 $735.00</p> <p>Dec. 1, Amount of Dog License, No. 4 135.00</p> <p>Jan. 5, Cash of Dickinson & Lang, No. 5 66.33</p> <p>Feb. 27, Cash of G-ilchristand others</p> <p>for the support of Mrs.</p> <p>Bundy, No. 6 54.00</p> <p>Cash of Justice Clark for fines, No. 7 10.00</p> <p>$2668.25</p> <p>Or.</p> <p>By Cash paid Overseer’s Orders, $948.30</p> <p>By Cash paid Selectmen’s Orders, 872.56</p> <p>School Fund, 25.14</p> <p>Balance due Town, $822.27.</p> <p>The undersigned, referee, would respectfully report, that pursuant to notice he met the parties with their counsel at Hall’s hotel, in Barnet, on Eeb. 11, 1879, and heard said cause. The action is predicated upon a bond, purporting to have been executed March 6th, 1877, by defendant Abbott, as principal, and by the other defendants as sureties, and conditioned for the faithful discharge of official duty by said Abbott as town treasurer of Barnet, for the year beginning on the first Tuesday in March, 1877. The defendant Abbott made no defense ; and I find that the plaintiff is entitled to recover as against him, the sum of §616.97, and interest from March 5, 1878. The execution of the bond was denied by the sureties; and to prove such execution by the sureties, the plaintiff called the sureties as witnesses; and asked each if he signed his name to the instrument, to which each surety answered that he did. On cross-examination, and against the objection and exception of the plaintiff, the sureties each testified that they signed the instrument in December, 1877; and that when they signed the same no seals were upon it; that they affixed no seals ; and that they authorized no one to affix any seals to the same. I find from other competent evidence, that said Abbott delivered this instrument to the selectmen in December, 1877, sealed and signed as it now appears. The plaintiff put the bond in evidence, and the same is referred to. I find from the testimony of the sureties, that they understood, when they signed the instrument, that it was a bond executed to secure the faithful discharge of said Abbott’s official duties, as such treasurer for the then current official year. No other evidence as to the execution of said bond was offered on either side. If the parol evidence, relating to the ensealing and the time of signing said instrument objected to by the plaintiff, was properly received, I find that said bond was in fact signed by said sureties in December, 1877 ; that it then bore no seals; that the sureties never attached any seals to their signatures; nor authorized any person to affix them. The question as to the admissibility of such parol evidence, and the validity of the bond as against said sureties upon the facts lastly above found, is submitted to the court. If the evidence objected to was improperly received, then I find that the bond was duly sealed by the sureties as it purports; though I find from other evidence that it was in fact signed by the sureties in December, 1877. It was conceded, that the persons named in the bond as such, were selectmen of Barnet for the year 1877 ; and that said Abbott had been treasurer for several years preceding 1877. The plaintiff claimed to recover the amount named in the specification hereto attached.</p> <p>Item 1. — As to the first item, “ Balance in treasury March 1, 1877, $917.92,” I find the following facts: Just before the annual meeting in March, 1877, the auditors settled with Abbott, who was treasurer the preceding year ; and found on such settlement, that there was in his hands as treasurer, or should be in his hands to balance his account, said sum of $917.92. No money was produced by Abbott, and none called for by the auditors. I find that for two years at least before March, 1877, said Abbott had kept no town funds separate from his private funds ; but had used the money of the town in his own business, and mixed it indiscriminately with his own ; that he had credit, so that he was able to answer current calls of the town for money; and that at the time he settled with the auditors as aforesaid, he had either funds on hand, or available credit, so that he could have produced the money called for by the balance shown in his account, had it been demanded of him; but in point of fact, he then had no money that could be identified as belonging to the town in his hands; and in point of fact had before such settlement used in his own business the money represented by such balance; that he received various amounts of money during the year 1877 ; and paid out various amounts ; and at the end of the year, in March, 1878, the balance against him was less than at the beginning; that during the year he intermingled such moneys with his own as before. The sureties claimed that the $917.92 had been misappropriated before the term of office commenced, covered by their bond. The question of their liability for this item is submitted to the court.</p> <p>Item 2. — I find as to the second item, that the collector paid to Abbott as treasurer between April 26 and Nov. 21,1877, the sum of 1749.94, and took his receipts therefor.</p> <p>Item 3. — I find that the selectmen paid to Abbott, May 28,1877, $600 ; and that Abbott received the same as treasurer, for the use of the town, as shown by his receipt. As to this sum of $600, I find that the selectmen had need of money to answer calls made upon the town — one Dr. Thompson had an award of damages against the town which was payable at once ; and other demands were'made which rendered it necessary for money to be had from some source; the selectmen understood from the treasurer that there were not funds in the treasury sufficient to answer the calls made; and thereupon on said May 28th, 1877, the selectmen borrowed of Moses Gilfillan, 3d, the sum of $600 ; gave said Gilfillan a town order therefor, and paid the money into the treasury as aforesaid. On the 26th of November, 1877, under a like necessity, the selectmen borrowed of Alex’r. Holmes the sum of $100 ; gave him a town order therefor, and paid the money into the treasury, taking the treasurer’s receipt for the same. The town by vote had never authorized the selectmen to borrow either of the foregoing sums ; but the selectmen supposed they had the right so to do, by virtue of their office. The orders, given to Gilfillan and Holmes, were paid by the town in February, 1878. Upon these facts the sureties claimed they should not be holden on the ground that the selectmen had no power to bind the town by such loans. This question is submitted to the court; and whether, if the action of the selectmen was irregular, the treasurer and his sureties can be allowed to stand upon such a defense. I find that the selectmen paid to Abbott as tréasurer, May 12, 1877, the sum of $20, and took his receipt, and the same is properly chargeable in his account as treasurer. This item is embraced in No. 3 of plaintiff’s specifications.</p> <p>Item 4. — I find that said Abbott was town clerk in 1877; and that he received as clerk for dog licenses, during the year before March 31st the sum of $131; and that by the provision of No. 16, acts of 1876, it was his duty to pay the same into the treasury on or before the first day of December, 1877. No evidence was offered to show whether Abbott in fact transferred this money to his account as treasurer. If the presumption arises that Abbott did what the law required him to do, this item is properly chargeable to him as treasurer: otherwise not.</p> <p>Item 5. — I find that the sum of $66.33 was paid to Abbott as treasurer, on a note held by the town against Dickinson & Lang, in January, 1877 ; and the same cannot properly be recovered of the sureties, it being paid during a former term of office ; but the same is chargeable to Abbott.</p> <p>Item 6. — No evidence was given in support of this charge ; and the same is not chargeable to any of the defendants.</p> <p>Item 7. — No evidence was given in support of this charge, and the same is disallowed. The plaintiff introduced evidence, from which I find the fact that thé share of public school money to which district No. 12 was entitled in 1877, was $96.10, of which Abbott paid to said district only $50, leaving a balance due the district of $46.10; but it is not apparent how the plaintiff can recover anything from this proof; the balance due that district must be parcel of the money paid to Abbott by the collector, and the whole amount so paid is hereinbefore charged to Abbott. It was agreed that Abbott has properly paid during the official year 1877, on selectmen’s and overseer’s orders and otherwise, the sum of $1,846, as shown on the specifications. It was shown that the town had never by vote required the treasurer to procure a bond ; and the selectmen testified that they required it in 1877, because they supposed they had such right. Some evidence was introduced, tending to show that the selectmen had knowledge before the sureties signed the bond in suit, that Abbott had been in the habit of using town funds in his own business ; but I do not find the fact that they had such knowledge. I do find that Abbott failed in December, 1877, shortly after said bond was signed by the sureties; and that prior to his failure, and during the whole of the year 1877, there were rumors in circulation in Barnet and vicinity, that he was liable to fail; that the then selectmen had heard such rumors, and this fact stimulated them to have him execute a bond to the town. I think it probable that the sureties heard as much said relating to Abbott’s possible insolvency as the selectmen did ; but at all events the selectmen had no knowledge that any misappropriation of town money had been made before said bond was signed by said sureties and delivered to the town. The selectmen had no agency in procuring the signatures of the sureties to said bond, but they signed the same at Abbott’s request alone.</p> <p>Item 1. — As to item 1,1 further report that the auditors’ report in March, 1877, was printed and freely circulated through town, and I am satisfied that the sureties then saw and knew the condition of the treasury, and the amount found due from the treasurer on such settlement.</p> <p>Upon the foregoing facts I find and report that defendant Abbott is liable in this action as follows :</p> <p>Item 1, Balance in his hands, $917.92</p> <p>“ 2, Cash paid by Collector, 749.94</p> <p>“ 3, “ “ “ Selectmen, 720.00</p> <p>“ 4, “ by Dog Licenses, 131.00</p> <p>2518.86</p> <p>Less amount paid out, 1846.00</p> <p>672.86</p> <p>And Item No. 5, 66.33</p> <p>$739.19</p> <p>That interest on this balance of $739.19, should be computed from March 5, 1878, when Abbott’s term of office expired.</p> <p>The other items covered by the specifications either accrued during a former year, and so cannot be recovered in this action on the bond of 1877, or have failed for want of proof. Whether the sureties can be held liable for any, and what items, is submitted to the court. Whatever items may be held recoverable of the sureties by the court, should draw interest from said March 5, 1878. All which is respectfully submitted.</p> <p>H. H. Powers, Referee,</p> <p>TOWN TREASURER’S BOND.</p> <p>Know all men by these presents, that I, J. D. Abbott, as principal, and H. J. Hazelton, Lucius S. Brock, and J. H. Clement, as sureties, of Barnet, in the county of Caledonia, aDd state of Vermont, our heirs, executors, or administrators, are firmly held and bound unto the selectmen; viz.: John Morrison, John Somers, and Henry A. GilfillaD, or their successors in office, in the sum of ten thousand dollars lawful money of the United States, to be paid to the said selectmen or their successors in office, to the payment of which well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly by these presents.</p> <p>Sealed with our seals and dated this 6th day of March, 1877.</p> <p>The condition of this obligation is such that if the said J. D. Abbott shall well and faithfully execute the offices of town treasurer and trustee, to which offices he was duly elected for one year, accounting for all moneys that shall come into his hands, papers, and all matters pertaining to said offices, and, at the expiration of his said offices shall deliver up to his successor in office all moneys, papers and matters in his care and custody, and shall in all things observe the law and statute in relation to said offices, then this obligation to be null and void, otherwise in force and virtue in law.</p> <p>Witness : Ella Abbott.</p> <p>J. D. Abbott, [l. s.]</p> <p>H. J. Hazelton, [l. s.]</p> <p>Lucius S. Brock, [l. s.]</p> <p>J. H. Clement, [l. s.]</p> <p>After the hearing and report, it was discovered that Abbott had paid some other orders, reducing the amount due the town from him to $616.97 ; and this was given in a supplemental report.</p> <p>The town had the right, and in the absence of any corporate action upon the subject, the selectmen, in the exercise of their general power and duty, to supervise the concerns of the town, given by statute, also, had-the right, to require such bond. Paw-let v. Strong et als., 2 Vt. 492; Williston v. White, 11 Vt. 40 ; Postmaster Gren. v. Bice et al., Gilpin R. 654; 6 Binny, 292;</p> <p>1 Mich. 855 ; Hobolcen v. Harrison, 30 N. Y. Law, 73; Montville v. Haughton, 7 Conn. 543.</p> <p>The bond as delivered to the selectmen, was by them accepted as a full compliance with their requirement that a good and sufficient bond should be given; and its apparent, perfect and valid condition being the work of the sureties and their agent, induced the selectmen so to accept it, and prevented their calling for and getting another bond. Shaw v. Bebee, 35 Vt. 208; Soper v. Frank, 47 Vt. 368 ; Hoboken v. Harrison, 30 N. Y. Law, 73 ; Dillon Munic. Corp. s. 155 ; Passumpsic Bank v. Gross et al., 31 Vt. 315.</p> <p>“ The obligor upon the bond of a town treasurer, executed after the beginning of the official term, which after reciting the period of such term, is on condition that he shall faithfully account for and pay over all moneys by him received, are liable thereon for moneys received by him during such term, prior to as well as after the execution and acceptance of the bond.” Attleborough v. Hatch et al., 97 Mass. 533.</p> <p>The fact that the money paid by Abbott in 1877, was paid upon orders drawn by the town officers for that year, signifies nothing so far as the application is concerned; the fact that he paid the money to creditors of the town, whose debts might have accrued in 1877, does not in any way give such payment the effect of an application upon the claim accruing in favor of the town against him during that year.</p> <p>It operates as a general payment to the town all the same as though he had paid it on an old debt. Langdon et al. v. Bowen, 46 Vt. 512; St. Albans v. Faily, lb. 448 ; Sanborn v. Deerfield, 2 N. H. 251; Dillon Munic. Corp. s. 82, and notes.</p> <p>Parol evidence in relation to the ensealing of the instrument was admissible. 1 Greenl. s. 284; Whart. Law of Ev. s. 927. Without a seal the instrument is not a bond. State v. Thompson et al., 49 Mo. 188 ; Clinton v. The People, 66 111. 501. It follows that no recovery can be had upon it as a bond.</p> <p>Selectmen have only such powers as are conferred upon them by statute or delegated to» them by the town. Middlebury v. Rood, 7 Vt. 125 ; Griswold v. North Stonington, 5 Conn. 867 ; Cabot v. Britt, 36 Vt. 349.</p> <p>No statute gives them special authority to require a bond of the town treasurer. Such authority is not included in the general powers given by s. 45, c. 15, Gen. Sts., because the requiring of the bond is not a duty required by law of the town, and is not a matter of common or ordinary business of the town contemplated in the first clause of that section.</p> <p>The bond, required by the selectmen under color of their office when they had no authority to exact it, is void. Churchill v. Perkins, 5 Mass. 541; Benedict v. Bray, 2 Cal. 251; United States v. Tingey, 5 Pet. 114; Woolwich v. Forrest, 2 N. J. L. (1 Penn.) 118 ; Caffrey v. Dudgeon et al., 38 Ind. 512; Lyon v. Ide, 1 D. Chip. 46; Probate Court v. Matthews, 6 Vt. 269.</p> <p>Abbott was town treasurer for successive terms, and the other defendants are sureties on his official, bond for the last term. These sureties not liable for this sum. Vivian v. Otis et al., 24 Wis. 518 ; Bissell v. Saxton et al., 66 N. Y. 55 ; Myers v. The United States, 1 McLean, 493 ; Farrar f Brown v. The United States, 5 Pet. 372 ; The United States v. Fckford’s Fxrs., 1 How. 250 ; County of Mahaska v. Ingalls, 16 Iowa', 81; Bessenger v. Dickerson, 20 Iowa, 260 ; Thompson v. Dickerson, 22 Iowa, 360 ; The Governor v. Gibson, 14 Ala. 326 ; Boring et ais. v. Williams, Treas., 17 Ala. 510; Warren v. Wilson, 16 N. J. L. (1 Harr.) 110; Patterson v. Freehold, 38 N. J. L. (9 Vroom.) 256; State v. Sooy, 39 N. J. L. (10 Vroom.) 539 ; Hatten v. Lane, 43 Texas, 279; Rochester v. Randall, 105 Mass. 295.</p>

<p> Trespass. Justice’s Record Conclusive. Cannot be Contradicted by Parol Evidence. Stockholder. Declaration. Estoppel. </p> <p>1. A justice’s record is as conclusive as that of any other court, between the parties or third parties; hence, when it showed legal service of a writ on a company by being served on a stockholder, parol evidence is inadmissible to prove that he was not such stockholder.†</p> <p>2. When a company is brought into court, and its records, as the articles of association, annual reports, &e., recorded in the town clerk’s office, as required by statute, show a person to have been a stockholder, such company is estopped from introducing any evidence to prove the contrary.</p> <p>3. In an action of trespass on the freehold, evidence is not admissible to prove that the plaintiff had to go farther to get to his wood-lot by reason of the trespass, when it is'not alleged specially in the declaration.</p>

<p>This case was tried at the June Term, 1880, Ross, J., presiding, Caledonia County.</p> <p>It is an action of assumpsit in common counts to recover for a quantity of lumber. Plea, non-assumpsit, and trial by jury.</p> <p>It appeared that the real defendant was L. E. Edwards, he having given his bond to the said E. & T. Fairbanks to save them from this suit.</p> <p>It was testified to on trial, uncontradicted, that one Cota employed the plaintiff to cut a large number of logs for sawing, on what the plaintiff supposed was land belonging to said Cota, that Cota had before that time bought of said L. F. Edwards; and the said Cota gave a lien on the logs to said Stone to secure him for his pay in cutting them. The said Stone went and cut the logs according to his contract. It was testified to, uncontradicted, that during the time Stone was cutting the logs Edwards came along and saw, and knew, Stone was cutting the logs, and made no objection to the same. The evidence tended to show that Edwards knew that Stone was cutting the logs, under a contract with Cota, and made no objection to the cutting; but there was no evidence tending to show that Edwards knew what the contract was, or that Stone had a lien on the logs to pay for the cutting; and Edwards on the stand denied having any such knowledge. The plaintiff brought a suit against Cota, and attached the same logs for his pay for the cutting. The logs were sold, Stone bidding them off, and then drew part of them into the mill of the defendants, and sold them to the defendants.</p> <p>There was such a defect in the proceedings of the suit of Stone against Cota that the court held that Stone got no title to the logs, by virtue of the attachment and sale. The plaintiff claimed under his contract with Cota, and his lien on the logs, that he had a right to sell a sufficient number of the logs to pay him for the cutting ; that if Edwards knew of this contract, allowed the plaintiff to cut and draw the logs into the mill, he would be estopped from set ting up any title to them. The court held otherwise, to which the plaintiff excepted. It appeared that after Stone sold the logs he had .bid off on that sale on his said execution against Cota to E. & T. Fairbanks & Co., had drawn into the mill a part of them, and Edwards set up a claim to the logs, and agreed with Fairbanks, if they would pay him he would indemnify them from Stone. And this suit is brought for the purpose of recovering pay for the logs, delivered to the mill by Stone, that had been cut by him, to the extent of his pay for the cutting. The said Edwards took upon himself the defense of the suit, and offered in evidence a copy of a deed from himself to Cota. ' The plaintiff objected to the admission of said copy, which was overruled ; to the admission of which the plaintiff excepted.</p> <p>The defendant offered no evidence except said Edwards and said copy of deed ; and Edwards did not in any way or manner deny, but that he knew the plaintiff was cutting the logs for Cota under a contract, but did deny that he knew the terms of the contract, or that the plaintiff had by it a lien on the- logs to pay for the cutting. The court held there was no evidence to go to the jury, and directed a verdict for the defendant, to which the plaintiff excepted. Exceptions allowed, execution stayed, and cause passed to the Supreme Court.</p> <p>If there was a defect in the sale on the execution, the plaintiff could sell under the statute enough to pay him for cutting. The deed was not evidence, till it was shown that Cota had failed to pay according to the agreement, and because the certificate did not show when it was received for record, or was so received until after the logs were cut. Edwards is estopped from asserting title to the logs in himself. Cady v. Owen, 34 Yt. 598.</p> <p>All the title the plaintiff had was derived from Cota ; and his title was by the conditional deed. Edwards’ title is perfect unless he has done something by which he is estopped. He knew plaintiff was cutting, but how, or on what terms, he did not know — indeed, had no right to know. He did not induce the parties to contract. Stone’s conduct was not in any manner influenced by the acts, words, or silence of Edwards. Therefore, Edwards is not now estopped from setting up his title. 35 Yt. 219.</p>

This case was tried at the June Term, Orange County Court, 1879, Powers, J., presiding. It was an action of general assumpsit brought upon the following note: $781.00. Bradford, Yt., March 31,1869. Eor value received we promise to pay Albert S. McConnell, or bearer, seven hundred and eiglity-one dollars on demand with interest annually. [Signed] Ira A. Merrill, B. L. Worthley.

Assumpsit upon a policy of insurance with general counts. Trial by jury, April Term, 1879. Lamoille County, Powers, J., presiding. The facts in the case are substantially as follows: The defendant insured a dwelling-house to the amount of $650 ; a barn and shed for $200 ; and produce and some other buildings for several hundred dollars more.

<p>This cause was heard on the master’s report, the exceptions thereto, the bill, answer and traverse at the December Term, 1878. Pierpoint, Chancellor, made the following decretal order:</p> <p>On hearing, it is pro forma ordered that the exceptions filed by the defendant to the master’s report in this cause, be dismissed for insufficiency ; and that said report be accepted and confirmed. It is adjudged that there is now due to the orator upon the matters mentioned in said report, (including interest to this date), the sum of ; and it is ordered and decreed by said court that the orator recover of the defendant his legal costs in this cause, as a legal debt and claim against the said defendant, the payment of which may be enforced by proper process. And further, that unless the said defendant, the American Board of Commissioners for Foreign Missions, pay, or cause to be paid, to the clerk of this court for the use and benefit of the orator, the said sum of together with the amount of the orator’s costs aforesaid, with interest on said sum, from this date, on or before the first day of March, 1878, the said defendant, and all persons claiming by, from or under it, shall be bound and forever foreclosed of and from all right, title, interest or claim to or in the premises described in the orator’s bill; and the said defendant and its attorneys, solicitors and agents shall be perpetually restrained from setting up any claim upon a judgment recovered in the Supreme Court for the County of Addison rendered at the January Term, 18 — , in an action of ejectment brought by the said defendant against the orator.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>The power to convey was not extinguished by the death of James Stickles, one of the executors ; but on his death it vested in Mrs. Stickles alone. Gen. Sts. 387, s. 14. So, independently of the statute. Treating the authority (or rather the order) to convey, as a mere naked power,, it having been given to the executors, eo nominee, would survive. 2 Perry Trusts, ss. 493, 499, 502 ; 2 Story Eq. Jur. s. Í061, and n.; 2 Wash. R. P. 614, 615, (top-paging); 4 Greenl. Cruise, 199, 200, n; Howell v. Barnes, Cro. Car. 382; Davis v. Christian, 15 Gratt. (Ya.) 11; Wells v. Lewis, 4 Met. (Ky.|) 269 ; Jackson y. Ferris, 15 Johns. 346 ; Peter v. Beverly, 10 Pet. 557, (12 Curt. 234.)</p> <p>It was not a naked power merely, but was coupled with both an interest and a trust, either of which would prevent its failure by the death of one of the donees. 2 Story Eq. Jur. ss. 1061, 1062 ; 2 Wash. R. P. 614 ; 4 Kent, 344 ; Osgood v. Franklin, 2 1 Johns. Ch. 21; Franklin v. Osgood, 14 Johns. 527, 553.</p> <p>An interest sufficient to feed a power and keep it alive in the hands of the surviving executor, need not be a legal interest — an equitable one is sufficient; nor does the efficacy of the interest depend upon its quantity. Osgood v. Franklin, supra.</p> <p>The life estate of Mrs. Stickles in the land, and her right to have the proceeds -of a sale applied to her support, were either of them, a sufficient interest to sustain her power to convey. Osgood v. Franklin, supra; Peter v. Beverly, supra; Jackson v. Ferris, supra; Jacksons. Given, 16 Johns. 167, 171; Jacksons. Burtis, 14 Johns. 391, 398.</p> <p>The duty charged by the will upon the executors was a trust, imperative. Osgood v. Franklin, supra; Zebaeh v. Smith, 3 Binn. 69, (14 Johns. 553); Shippen’s Heirs v. Clapp, 29 Penn. St. 265 ; Perry Trusts, ss. 248, 473. If the whole will evinces a design in the testator that, at all events, the land should be sold to satisfy the whole intent of the will, then the power survived. Franklin v. Osgood, supra. For determining the effect and construction of such powers as the one in question, we must ascertain and give effect to the intention of the creator of the power, as gathered from the entire instrument. Perry Trusts, ss. 499, 475 ; Lewin Trusts, 444 ; 4 Greenl. Cruise, 199, n.; Peter v. Beverly, supra ; Osgood v. Franklin, supra. Did the testator intend that the whole beneficent object of the will should be defeated ? 14 Johns. 555.</p> <p>It was not necessary even at law that the deed to the orator should contain a recital of the words of the will creating the power, nor of the fact that the contingency had occurred upon which a conveyance was ordered. It is enough if it appears — as it abundantly does — that the deed was intended as an execution of the power. 4 Kent, 554 ; 2 Story Eq. Jur. s. 1052, a. and n.; 2 Wash. R. P. 612, 618 ; Solomon v. Wilcox, 27 Conn. 520; Carr v. Verner, 66 Pa. St. 326 ; Blogge v. Miles, 1 Story, 426. ■</p> <p>The power given in the will to the executors to sell the real estate, is a mere naked power. It is not coupled with, or depend-ant upon, any-interest at all. It stands as to the power, precisely as it would if the intermediate life estate was in a third person. The executrix, in her individual capacity as widow, has the life estate, which is entirely independent of the power given the executors, and would be the same if the power to sell was given to a third person, or not given at all. Learned v. Bridge, 17 Pick. 341; Shelton v. Homer et al., 5 Met. 466 ; Lancaster v. Thornton, 1 Burrows, 366 ; Stevens v. Winship, 1 Pick. 325.</p> <p>A naked power does not survive. If given to two it must be executed by the two, and not by the survivor of them. In Franklin v. Osgood, 14 Johns. 553, Judge Platt says: Lt is clear, that at common law, a naked power given to executors to sell lands, would not survive, a. This power to sell was a personal confidence reposed in the joint discretion and integrity of the two executors. “All the authorities agree,” (says Judge Wild, in Taintor v. Olark, 13 Met. ,226,) “ that if a power is given, indicating personal confidence, it must be confined to the individual, or individuals, to whom it is given, and will not, except by express words, pass to others than the trustees originally named, though they may, by legal transmission, sustain the same character.” And to the same effect are the following cases : Cole v. Wade, 16 Yesey, 43; Qonklin v. Bgerton, Admr., 21 Wend. 437; Shelton v. Homer, et al., 5 Met. 466.</p> <p>The general principle of the common law, as laid down by Lord Coke, is, that when the power, given to several persons, is a mere naked power to sell, not coupled with an interest, it must be executed by all, and does not survive. Peter v. Beverly, 10 Peters, 564 ; Jackson v. Schouler, 7 Cow. 197. The trustee cannot act in his own case, as between himself and the subject of the trust. Nor can the act of such a party'in his own behalf be set up by proof of its actual fairness and correctness. That is an inquiry that cannot be gone into. The act is wholly Void. Adams’ Equity, 366-370 ; Shelton v. Homer et al., supra ; Miehoud v. Grirod, 4 How. 503.</p> <p>The executrix, then, had no power whatever to execute the deed in question. The language of the court in Toilet v. Toilet, 2 P. Williams, 490, is explicit upon this point. “ This court will not help the non-execution of a power, which is left to the free will and election of a party whether to execute or not, for which reason equity will not say he shall execute it, or do that for him which he does not think fit to do himself.” Indeed, a court of equity by acting otherwise, in case of a non-execution of a power, would deprive the party of all discretion respecting the exercise of it, and defeat the intention of the party in the creation of the power. 1 Story, 174, ss. 169, 170 ; Holmes v. Ooghill, 12 Ves. 214; Brown v. Higgs, 8 Ves. 569; Orossling v. Orossling, 2 Cox, 396 ; Lamed v. Bridge, 17 Pick. 342.</p> <p>While equity will generally aid the defective execution of a power, yet where the defect is one of substance, “ such as the want of co-operation of all the proper parties in the act,” then equity will not aid the defect. 3 Story, 170, s. 175 ; 2 Chance on Powers, c. 23, s. 2, pp. 540, 543 ; Adam’s Equity, 227. Nor will equity aid a defective power. Piatt v. McOullough, 1 McLean, 82 ; 1 Story, 169, 174.</p>

<p>This was an action of assumpsit to recover the amount of two promissory notes. The case was heard on demurrer to defendant’s pleas, September Term, 1878, Powers, J., presiding. The facts .were agreed upon as follows: The said Bank, located in the-city of Sherbrooke, P. Q., and carrying on the business of banking, declared against the defendants, J. P. Morrill, of Derby, Vt., and H. S. Beebe and Anson Beebe, of Stanstead, P. Q., copartners, doing business in trade, at said Stanstead, under the firm name of H. S. Beebe & Co., as indorsers in their said firm name at said Stanstead, of two promissory notes drawn by Nevin & Co., of Montreal, and payable to the defendants or order, and by them endorsed to the plaintiff. Writ dated April 12, 1876. Before the commencement of this suit, the plaintiff brought a suit in Canada against these defendants, declaring against them upon the same identical promises upon which it declares in this suit. The writ in that case was entered in the Superior Court, holden at Sherbrooke aforesaid, at the term at which it was made returnable. There, was an actual appearance for all the defendants in that case, and a trial was had on the merits of said cause, and at a term of said Superior Court, holden at Sherbrooke, aforesaid, on the 6th day of April, 1876, said court rendered a judgment against the defendant John E. Morrill for the amount of said notes in damages and costs. Prom which judgment so rendered against him, the said Morrill took an appeal as provided by law, to the Court of Review, holden at the city of Montreal, in said Province, and said cause as to the said John E. Morrill was duly entered in said Court of Review, and on the 10th day of October, 1876, the said judgment of the said Superior Court was by said Court of Review reversed and set aside, and judgment therein rendered in favor of the said Morrill and against the plaintiff as to said Morrill, from which last-named judgment the plaintiff then and there took an appeal to the Court of Queen’s Bench, appeal side, holden at Montreal, in said Canada, and said cause was duly entered in said Court of Queen’s Bench, appeal side, and at a term of said last named Court of Queen’s Bench, holden in Montreal aforesaid, on the 14th day of December, A. D., 1877, the said judgment rendered by the said Court of Review as aforesaid was, by said Court of Queen’s Bench, appeal side, reversed and set aside, and said judgment rendered by the said Superior Court at said Sherbrooke, April 6, A. D., 1876, was, by the said Court of Queen’s Bench, on said 14th day of December, confirmed, and judgment was rendered by said Court of Queen’s Bench accordingly, against the said John E. Morrill, which judgment of said court remains in full force and unreversed and conclusive in Canada, against the said John E. Morrill. And on the 27th day of April, A. D.,1876, the said Superior Court, holden at Sherbrooke, after full hearing rendered a judgment against the said Anson Beebe and Hoel S. Beebe for the full amount of said notes so indorsed as aforesaid, and costs, which judgment against the said Anson Beebe and Hoel S. Beebe was not appealed from, but remains in full force and unreversed and conclusive in Canada against the said Anson Beebe and Hoel S. Beebe. All of the above named courts are courts of record in Canada.</p> <p>The foregoing facts are properly set out in the defendant’s 5th, 6th and 7th pleas, to which pleas the plaintiff demurred.</p> <p>The pleas relative to the Canadian judgment against Anson and Hoel S. Beebe were, by leave of court, filed July 13,1877, andas to the Canadian judgment against Morrill was by leave of Court filed March 28, 1878. The declaration is properly drawn.</p> <p>The question raised by the said pleas and demurrer is whether said Canadian judgments are a bar to the prosecution of this suit after said judgments were rendered.</p> <p>Debt is the only form of action that will lie upon the judgment of a court of record of a sister state, while assumpsit will lie upon a strictly foreign judgment. Mills v. Duryee, 7 Cranch. 481; Boston India B. Factory v. Ho it, 14 Yt. 92 ; 1 Chit. PI. 119.</p> <p>In determining the effect to be given to a foreign judgment, there is a distinction between a suit brought to enforce a foreign judgment and a plea of a foreign judgment in bar of a fresh suit for the same cause.</p> <p>In the first case the foreign judgment (the jurisdiction being properly established) is held conclusive. But in the latter case, the foreign judgment, if in favor of the defendant, is a bar to a fresh suit brought by the plaintiff on the original cause of action.</p> <p>But if the foreign judgment is in favor of the plaintiff, such foreign judgment is not a bar to a second judgment in favor of the plaintiff founded upon the original cause of action. 2 Kent, 120 and n. 1, and cases hereafter cited. 2 Chit. PI. 421, n. (16th Am. Ed.)</p> <p>The judgment of a foreign court is not a debt of record, and is not a merger of the original cause of action. 2 Chit. PI. 16 Am. Ed. 421 and n; Freeman Judg. 2 Ed. ss. 220 and 605; Bigelow Estop. 218, 219-220, 222-4; Hall v. Older, 11 East. 118, A. D. 1809; Smith.v. Nicholls, 5 Bing. N. C. 208 ; and 35 E. C. L. 120, A. D. 1839.</p> <p>The record of a foreign court is not treated as a record purporting in and of itself absolute verity, like a domestic record, or creating a new liability, but is only evidence of a pre-existing liability, though when produced properly verified, and proof being-made in connection therewith that the foreign court had jurisdiction of the subject matter and all the parties, and a trial was had upon the merits then and then only, this evidence becomes conclusive as to the original indebtedness. Boston Ind. B. Factory v. Hoit, 14 Vt. 92; Bank of Australasia v. Nias, 16 Q. B. 717, and 71 E. C. L. 717, A. D. 1851; vol. 1, Phillips Ev. 351-2; Ereem. Judg. 2 Ed. s. 605.</p> <p>The judgment rendered in the Court of Queen’s Bench, December 14, 1877, being merely an affirmance of the judgment rendered April 6, 1876, and as this indebtedness is the same after judgment in Canada as before, and the form of action must be the same whether upon the foreign judgment or upon the promissory notes which were the basis of that judgment, it is still a suit for the recovery of the same indebtedness. Walker v. Witter, Doug. Rep. 4.</p> <p>The foreign adjudication, under the circumstances of this case, is conclusive here.</p> <p>It is the rule, both in England and in this country, that a question settled abroad by courts of competent jurisdiction between actual parties, after trial, will not be opened at home. 2 Parsons Cont. 118-123 ; Burrows v. Jemino, Strange, 733. In this case the judgment in Leghorn was held to be a bar to a suit on the original cause of action. Groix v. Lowe, 1 Johns, cases, 344; 1 Daniel’s Chan. 664; Story Eq. PI. s. 783; Bowne Seymour v. Joy, 9 Johns. 221; 3 Dallas, 372 and 3 ; Plummer v. Woodbourne, 4 B. and O. 625 ; 10 E. C. L. 731; Bank of Australasia v.Nias ; 71 E. C. L. 717. We are aware that in the case last cited the court held that the original cause of action was not merged in the judgment rendered by the court of New South Wales; but the English court in that case did hold that the judgment of the court of New South Wales was conclusive, and such being the case, we submit that there was no good reason for holding that the original cause of action was not merged in the judgment of the colony.</p> <p>In the case of Phillips v. Hunter, 2 H. Black. 410, Lord Ch. J. Eyre says: “ It is in one way, only, that the sentence or judgment of the court of a foreign state is ex'aminable in our courts, and that is when the party who claims the benefit of it, applies to our courts to enforce it. In all other cases we give entire faith and credit to the sentences of foreign courts, and consider them as conclusive upon us.” Walker v. Witter, Doug. • 1; Galbraith v. Neville, Doug. 6 ; Martin v. Nieholls, 3 Simon’s Gh. R. 458 ; 2 Smith’s Lead. Cas. 529. If the parties were properly before the foreign court, a question decided there, between the same parties, cannot be inquired into again. Chit. Con. 683, n. 2 (8th Ed.); Phil. Ev. H. and C. n. part 2, 893 ; 20 E. C. L. 558; 26 N. Y. 146 ; 8 Johns. 173; 2 Barb. 601; Story Confl. of L. ss. 603, 604, 606, 608, 613, 618 ; 110 E. C. L. 11; Big. Estop'. 175 ; 13 E. C. L. 686. If the cause is not merged, the plaintiff, instead of owe cause of action, as originally, has two now. 14 Vt. 96; 2 Parsons Cont. 119; 2 H. Black. 410 ; Am. L. Reg. (N. S.) 4 vol. 7, 8; 6 N. Y. 44; 12 N. Y. 9. A foreign judgment is entitled to as much respect as an award; or note given on settlement. 4 Vt. 549 ; 13 lb. 552 ; 26 lb. 299.</p>

<p>Injury on Highway. Contributory Negligence. Burden of Proof. Error in Charge to Jury. Damage. Injured Feelings,” not an Element of Damage.</p> <p>1. The insufficiency of the highway must be the sole, operative cause oí the injury. If it is the joint product of the plaintiff’s lack of prudence, and the town’s negligence, there can be no recovery.</p> <p>2. The burden of proof is upon the plaintiff to show that he contributed nothing towards producing the accident; that the highway was insufficient; and that his conduct was prudent.</p> <p>3. There was error in the charge to the jury, in giving two inconsistent instructions as to the burden of proof ; — the one correct, and the other not.</p> <p>4. The plaintiff wife was prematurely delivered of twin living children ; and the miscarriage was the result of her injuries. Any physical or mental suffering attending the miscarriage, is a proper subject of compensation.</p> <p>5. But the rule goes no farther. Any injured “ feelings " following the miscarriage, not part of the pain naturally attending it, are too remote to be considered an element of damage.*</p>

This cause was heard at the June Term, 1880, Caledonia County, Ross, J., presiding. It was a complaint before a justice of the peace for an alleged violation of the statute in procuring and transporting intoxicating iquors. The defendant demurred to the complaint. The court, proforma, adjudged the complaint sufficient. The defendant excepted to the ruling of the court. The court ordered the exceptions to the Supreme Court for hearing, before taking further proceedings.

This cause was heard at the September Term, 1879, Franklin County. Royce, Chancellor, stated and decreed as follows : The above cause was heard on bill, joint answer of the defendants and proofs. The only evidence used on the hearing was the lease referred to in the bill, and copy of a conveyance from Soule to the orator dated the 12th day of Eeb., A. D. 1879.

This case was tried at the May Term, 1879, Windsor County, Barrett, J., presiding. Libel for divorce. The libellee moved to dismiss the petition. The motion was in writing, claiming, that the written agreement signed by the libellee and the father of the libellant, acting as her agent, was a good defence, especially as he had performed his pa'rt of the contract, in paying all that he agreed to, and delivering the property, &c., to the libellant.

This case was tried at the September Term, 1878, Essex County, Dunton, J., presiding. Action, trespass for assault and battery; plea, the general issue and notice.

Action of trespass on the freehold, for entering the plaintiff’s close in Bennington village with a strong hand, &o., and demolishing a shed. Writ dated January 9, 1878. Plea, general issue and notice. Trial by jury, December Term, 1878, Bennington County, Dunton, J., presiding. Verdict for the defendant. Jacob Lyons formerly owned the described close, with what are now three other adjacent lots.

The cause entitled The Vermont 8f Canada Railroad Company v. The Vermont Central Railroad Company et al., was entered in the Franklin County Court of Chancery, at,the June term, 1855, and by order of court is still pending. The history of that cause sufficiently appears in the opinion.

This cause was tried at the February Term, 1880, Orleans County; Redfield, Chancellor. The bill was dismissed, pro forma, and appeal allowed to the Supreme Court. The facts appear in the opinion. The orators were the owners of the hides and leather, at least to the amount of their money which was expended in the purchase of the hides, and the amount they expended to preserve the leather from injury and fit it for market.

This was an action of assumpsit based upon the alleged promise of the overseer of the poor of the town of Barton to pay the plaintiff for the support of John and Mary Spring, alleged in said declaration to be paupers, and to belong to said Barton. Plea, general issue, trial by jury. Verdict for the plaintiff. Redfield, J., presided, February Term, 1880.

<p>Exemption from Attachment under the Act of 1866, No. 39.</p> <p>1. It is not necessary that the horse be in actual use, at the time of attachment, to be exempt. It is exempt if the owner keeps it with the honest intention and purpose of using it, within a reasonable time, for team work, to enable him with the aid of the animal to procure a livelihood.</p> <p>2. Future intended use is as controlling upon the question of exemption as any past use.</p> <p>3. Sullivan v. Davis, 50 Vt. 648, distinguished. There, the colt, claimed to be exempt, was too young for team work.</p> <p>4. The Act of 1866, No. 39, as to exemptions, construed.</p>

This case was tried by the jury, February Term, 1880, Red-field, J., presiding, and verdict for the plaintiff. It was an action of trespass with a count in trover for taking and converting the plaintiff’s personal property. Plea not guilty; and justification under three writs of attachment against one Chas. Wilson, and one writ in favor of Elvira Powers against Chas, and John Wilson.

This was an order of removal of Joseph P. Glynn and Nancy Glynn, his wife, from the town of Baltimore to the town of Chester. Trial by the court, May Term, 1880, Barrett, J., presiding. Plea, that the last legal settlement of the pauper was not in the town of Chester. The court decided that the pauper had not gained a settlement in Baltimore. The facts, relating to the question decided by the Supreme Court, are sufficiently stated in the opinion.

This cause was heard at the December Term, 1879, Barrett, Chancellor. Hearing on the pleadings and proofs, defendants, Cushings and Ellison, defending. Decree for orator as prayed, against the defendants confessing; decree, pro forma, for defendants answering, that the bill be dismissed with costs. The facts appear in the opinion of the court. The legal effect is the same as if the private and partnership property had been described in the same mortgage. Rob. Dig., 99.

At the December Term, 1879, before Barrett, Chancellor, this case came on for hearing, on the bill to foreclose the mortgage, answers and evidence; and it was decreed, pro forma, that the defendants redeem the orator’s mortgage claim, or be foreclosed. The facts sufficiently appear in the opinion of the court, except the following.

This case was heard at the December Term, 1880, Taft, J., presiding. Judgment for the defendant, on the report of a referee. The referee found: plaintiff’s specification. “Dec. 1873. To livery and expense in case, State v. William H. Tucker, $22.00 To personal services in same, 28.00 $50.00 In August, 1873, the defendant was held to bail by a justice of the peace in $800, on a grand juror’s complaint for adultery.

This case was tried at the May Term, 1879, Barrett, J., presiding. Trial by jury, verdict for the plaintiff. The facts sufficiently appear in the opinion of the court.

This case was tried at May Term, 1879, Barrett, J., presiding. Trial by tlie court, and judgment for the plaintiff. Action of assumpsit on a written contract; plea, non-assumpsit. Several questions were raised in the court below ; but the facts bearing upon the case as decided by the Supreme Court sufficiently appear in the opinion, except the contract, which is as follows: Rutland Railroad Company.

The town treasurer of Hartland made his complaint and prayed for an extent on the 3d day of August, 1880; and the justice issued notice to the collector on the same day to appear before him on the 11th day of August.

This case was heard on the report of a commissioner, at the May Term, 1880, Barrett, J., presiding, It was an appeal by Eliza Shaw from a decision of the Probate Court for the district of Hartford.

This case was tried by the court at the December Term, 1880, Taft, J., presiding. Judgment for the defendant. Action of debt, to recover the penalty given by s. 7, c. 24, Gen. Sts. Plea, the general issue. DECLARATION.

This case was tried at the May Term, 1879, Barrett, J., presiding. It was an action on the case to recover damages sustained by the plaintiff on account of the insufficiency of a highway in said town of Sherburne while travelling there, on the 28th day of July, A. D. 1877. It'was conceded the town of Sherburne was bound to maintain and keep in repair said highway.

<p>Pauper. Gen. Sts. c. 19, s. 1. Bond for Deed.</p> <p>1. Under Gen. Sts. e. 19, s. 1, sub. div. 4, (R. L. c. 135), when one has purchased and occupied a farm, though he holds it by a bond, conditioned that he shall have a deed thereof on the payment of the sums specified in it, he holds such farm “in his own right” within the provisions of the pauper law. The bond, in effect, is the same as a deed with a mortgage back.</p> <p>2. Under the said section of the statute, the illegality of the list, used and adopted by the town, will not prevent one gaining a settlement, if he pays the requisite tax.</p>

<p>This case was heard on the report of referees at the May Term, 1880, Barrett, J., presiding. Action, for false imprisonment. Judgment for defendants. The referees found and reported that defendant Clark was the grand juror, and defendant Hatch, a justice of the peace, of the town of Norwich ; that the plaintiff was charged with selling intoxicating liquor contrary to law ; that the defendants acted in good faith, and that the justice before issuing the mittimus consulted an attorney, who had had nothing to do with the case, and was advised by him that it could be legally issued. It was issued without notice to the plaintiff. As to the agreement to stay proceedings the referees reported as follows</p> <p>“ The next morning — May 15th — the case was called in Yan Oor’s law office. The justice was present, and the State was represented by the grand juror, Van Cor, and Chase, an attorney from Hanover, who was sent by the college. The plaintiff was represented by himself, his father, and Lewis S. Partridge. Thereupon negotiations then and there were commenced about a settlement, as they called it, the result of which was that it was then and there agreed that plaintiff should plead guilty to twenty-five offences, and be fined two hundred and fifty dollars, and pay the costs of that proceeding, including counsel fees on the part of the State, and also the costs and charges in a previous prosecution against the plaintiff for selling intoxicating liquor, then pending in Windsor County Court, wherein President Smith of said college was private prosecutor, amounting in all to $88.10, and that plaintiff should not be called upon to pay said fine unless he again violated the law in relation to intoxicating liquors. Thereupon, in pursuance of said agreement, Yan Cor then and there, in the presence of all parties and the court, entered on said complaint and warrant the words and figures following:</p> <p>“ Norwich, May 15,1875.</p> <p>“ Bespondent arrested, pleads guilty to twenty-five offences. Ordered “ to pay fine, $250.00</p> <p>“ Costs of prosecution, 9.06</p> <p>“Judgment suspended until respondent shall again violate the law in relation to intoxicating liquors ” ; and then and there read the same aloud in the presence and hearing of all the above named persons, including the court; and no suggestion was there made by any one that said minute did not embody the -substance of the agreement;.....and we find that it did, except that it did not state that plaintiff was to pay costs and charges as aforesaid. And the justice then and there signed said minute in his official capacity ; the plaintiff then and there paid all said costs and charges.....At the time of making said agreement no provision was made as to the manner of ascertaining whether said law had been again violated by the plaintiff; but the parties to said agreement, at the time of the making thereof, understood that the collection of said fine should not be enforced without plaintiff’s first having an opportunity in some way to be heard upon the question of whether he had again violated said law.</p> <p>Within two hours after the court adjourned as aforesaid, the justice, at the suggestion of Mr. Chase, but without the knowledge or consent of plaintiff, altered the minute on the complaint and warrant so as to read as follows, to wit:</p> <p>“Norwich, May 15,1875.</p> <p>“ Respondent arrested — pleads guilty to twenty-five offences. Ordered “ to pay fine, , 1250.00</p> <p>“ Costs of prosecution, 9.06</p> <p>“ Judgment suspended until respondent is called.</p> <p>“A. P. Hatch, Justice Peace.’’</p> <p>. Matters remained thus for several weeks, when verbal complaints began to be made to defendant Clark, grand juror as aforesaid, that plaintiff was again violating the liquor law. Clark delayed acting in the matter some two weeks, and more similar complaints being made to him in the meantime, he became satisfied in his own mind, that the plaintiff was in fact again “ violating the law.” The referees found that the justice was not a party to this agreement.</p> <p>Magistrates are liable, if guilty of an excess of jurisdiction.</p> <p>1 Chitty PI. 204, 208 ; 2 Hillard Torts, 184; Piper v. Pearsons, 2 Gray, 120; Clark v. May, lb. 410. If the mittimus was wrongfully issued the defendants are liable. Morrill v. Thurston, 46 Vt. 732; 10 Johns. 93; Daggett v. Clark, 11 Cush. 262 ; Sullivan v. Jones, 2 Gray, 570 ; 4 Met. 553. The grand juror liable. Allen v. Cray, 11 Conn. 95 ; Tray v. Williams, 4 Conn. 107 ; 7 Gray, 55. If in such case the justice issues a mittimus, without notice, it is an excess of jurisdiction ; 11 Cush. 262. If an officer arrests a party, lets him go, he cannot arrest him on the same warrant afterwards; 2 Hawk. Pleas of Or. Ch. 13, s. 9, p. 130. The justice had power to stay proceedings. Rowan v. Union Arms Co., 36 Yt. 124, 138.</p> <p>The justice having jurisdiction, error in judgment would not subject him to an action. Vorehees v. Martin, 12 Barb. 508; 7 Wend. 200 ; 2 Cush. 63 ; 8 Conn. 375.</p>

This case was tried at the May Term, 1880, Barrett, J., presiding. It was an action of ejectment for premises in Cavendish. Trial by the court. Plea, general issue. The plaintiff introduced a copy of record of a judgment in favor of plaintiff’s intestate, Josiah Gilson, against defendant, and an execution issued thereon dated 21st day of August, 1878, and the levy of the same execution on the homestead premises of defendant, and the same sued for in this action.

<p>Lien. Conditional Sale. Acts of 1870, No. 63, and 1872, No. 51,— Construed. Notice.</p> <p>1. The record of a memorandum, witnessing a lien of personal property, under the Acts of 1870, No. 63, and 1872, No.*51, (R. L. s. 1992,) made more than thirty days after the delivery of the property, is not sufficient to charge a subsequent purchaser with actual or constructive notice.</p> <p>2. All such liens are invalid, against attaching creditors and subseqnent purchasers, without notice, unless recorded within the time prescribed by the statute.*</p>

<p>Burial Ground, Dedication of for Public Use. Gen. Sts. c. 18, s. 2. (22. L. ss. 3192, 3196.) Costs.</p> <p>1. What acts constitute a dedication: Stating to people living in the vicinity that the . ground might he used for a burial place; suffering it to be fenced, and exclusively used for such purpose for a great number of years, lots appropriated, roads made in it, &c.</p> <p>2. After such dedication the original owner, or his grantees, have no greater control over the same, for such purposes, than any other lot-holder. The selectmen under the statute, (R. L. c. 147,) can make all necessary regulations; and convey lots by deed. '</p> <p>3. When one has staked out, and entered into possession of a lot, and not abandoned it, it would be a trespass for another to fence a part of it into his own lot; or, obstruct a road-way necessary for its use.</p> <p>4. The damages were practically nominal, — f 1; therefore, the case as to costs is within the provisions of the R. L. s. 1436, giving the court discretion in matter of costs.</p>

This case was heard at the December Term, 1880, Taft, J.,. presiding. Hearing on an ahditor’s report; and judgment for the defendant. The auditor found : The plaintiffs claimed to recover of defendants pay for two items of account sold about July 15, 1879; one item being for 18 feet of belt, 19.45, and the other being 200 feet of linen hose, $68.00 ; making in all, the sum of $77.45 and interest thereon.

This case was heard by the court at the December Term, 1880, Taft, J., presiding. Judgment to account. The only question raised in the court below is stated in the opinion.

This case was heard at the September Term, 1879, on general demurrer. Dunton, J., presiding, overruled the demurrer, and adjudged the declaration sufficient. Action for covenant broken. plaintiff’s declaration.

This case was tried at the March Term, 1880, Barrett, J., presiding. Trial by jury, verdict directed for the defendant.

This case was heard on the report of referee, at the March Term, 1880, Barrett, J., presiding. Judgment for the plaintiff.

This case was heard on a master’s report, at the September Term, 1880. Ross, Chancellor. Bill dismissed.

<p> Highway. Damage. Margin. Scales in or near the Margin. </p> <p>1. If a traveller goes upon the margin of the highway hy his own fault, and there receives an injury, he cannot recover.</p> <p>2. If he goes upon the margin, made into road, by the town, or by long use, or by an individual, and adopted by the town, and receives an injury there, without his own fault, he can recover.</p> <p>3. By long use the margin becomes road.</p> <p>i. The test of liability is not, how, or by whom, the road has been made, but whether the town authorities suffered it to be used, for public travel.</p> <p>5. The greater the travel, the more care the law imposes upon the town in constructing the highway.</p>

This case was tried at the March Term, 1880, Barrett, J., presiding. Indictment in two counts, charging the respondent with the larceny of a heifer, and with receiving the 'same heifer, knowing her to have been stolen. The State claimed that the respondent committed the larceny on the 19th day of August, 1879. The respondent admitted the taking ; but claimed that he thought the heifer was his own, one that had strayed from his pasture three months previously.

This casé was heard on the report of the referee, at the September Term, 1880, Ross, J., presiding. Judgment for the plaintiff for the value of the property.

This case was tried at the March Term, 1879. Plea, general issue ; trial by the court; judgment for the defendant; Dun-ton, J., presiding. Appeal from Probate Court.

Action of account. This case was heard on the following report of referees, at the September Term, 1880. Judgment cm the report for defendant, Ross, J. presiding.

Heard on the report of a referee at the September Term, 1879, Dunton, J., presiding. Judgment, pro forma, for the plaintiff. The defendant was the hired servant of one Mrs. Lippitt; and the alleged acts of trespass consisted of hauling and placing upon the land in question a lot of logs taken by the defendant out of an old mill dam, then owned by Mrs. Lippitt, and by her direction, which dam was being cleared away for the purpose of erecting another.

Action of assumpsit in common counts. Plea, non assumpsit, and notice of payment by the note of W. N. Oliver. Trial by the court, September Term, 1880, Ross, J., presiding. Judgment for the defendant. The facts appear in the opinion. cited Wainwright v. Webster, 11 Yt. 576 ; lb. 516 ; 13 lb. 452 ; 4 lb. 549; 15 lb. 212 ; 28 lb. 80 ; 16 lb. 34 ; 10 lb. 141; 6 Mass. 142 ; Young v. A.dams, 6 Mass. 182; 10 Wheat. 333 ; Jones v. Ryde, 5 Taunt.

<p>Administrator liable on an Award before the Settlement of an Estate. B. L. s. 2148.</p> <p>1. An action of assumpsit will He upon an award in favor of one of the heirs against the administrator, personally, when they had regularly submitted their differences to arbitration.</p> <p>2. Gen. Sts. e. 48, ss. 39 and 40, (R. L. s. 2148, 2149) as to referring disputed, claims of deceased persons, &c., construed.</p>

<p> Assumpsit. Evidence. Fraud. Duty of Vendor and Vendee when Property is Sold on Trial. Presumption. Referee’s Report. </p> <p>1. Indebitatus assumpsit lies to recover the price of an article delivered on a written order.</p> <p>2. In such case the writing is admissible evidence.</p> <p>3. Ordinarily, when property is sold on trial, the vendee must notify the vendor of the failure in a reasonable time; but otherwise, when the vendor agrees to examine the working of the article and learn the result himself.*</p> <p>4. It is a species of fraud to sell an article on trial, for a particular purpose, when the vendor knows, or ought to have known, from his certain knowledge of the facilities of the vendee in using it, that it must necessarily result in failure.</p> <p>5. The court will not presume error, as 'to the admission of evidence of conversations had at the time the contract was written, when it is not detailed, or given in the report of the referees.</p> <p>6. Conversations of the parties, after the written contract is made, about the setting up, and manner of using milk pans, sold on trial, are admissible.</p> <p>7. Evidence of the successful working of other pans similar to these in question is not admissible, when it could not affect the result of the case.</p>

This case was heard at the September Term, 1880, Ross, J., presiding. This was an action of assumpsit, in two special and the general counts. Pleas, the general issue, and Statute of Limitations. Replication, similitur to the general issue, and to the plea of the Statute of Limitations, a general traverse that the cause of action did accrue within six years, &c. The declaration, pleas and motions were part of the exceptions.

<p>Heard at the September Term, 1879, upon bill, answer and the master’s report. Royce, Chancellor, decreed that the mortgage be reformed so as to embrace the sum of $2920.70, the amount of $2750, the sum due when the mortgage was given. The orator brought his bill to foreclose his mortgage and to have it reformed and enlarged. The facts found by the special master sufficiently appear in the opinion of the court.</p> <p>The orator is entitled to have his mortgage reformed. 1 Story’s Eq. s. 153. In cases of mistake in written instruments courts of equity will interfere to reform, not only as between the original parties, but between those claiming under them in privity, as personal representatives, heirs, devisees, legatees, assignees and voluntary grantees. 1 Story’s Eq. s. 165.</p> <p>An assignee in bankruptcy or insolvency is a party claiming under the bankrupt or insolvent in privity. He takes the property subject to all legal and equitable claims of others. He is affected with all equities which can be urged against the bankrupt or insolvent, and in this case the orator is entitled to the same relief against him that he has against the mortgagor'. Kelly v. Scott, 49 N. Y. 602; Go ole v. Tullís, 18 Wall. 341; Cutler’s Mass. Insolvent Law, 63. See also Hart v. F. f M. Bank, 33 Yt. 252.</p> <p>This, if a mistake at all, is a mistake of law and not of fact. Courts do not rectify mistakes of this kind. Mellish v. Robertson, 25 Ft. 603 ; Howard v. Puffer, 23 Ft. 365 ; McDaniels v. Bank of Rutland et al., 29 Ft. 230. Parol evidence not admissible to enlarge the written contract. Irnham v. Child, 1 Bro. C. C. 92 ; Hare v. Shearwood, 3 Bro. C. C. 168.</p> <p>The assignee stands in place of and represents the creditors of the defendant Cilley, who was insolvent when the mortgage was made. In re Hinds et al., 3 B. R. Qo. Ed. 91; In re Metzger, 2 B. R. Qo. Ed. 114 ; In re Léland et al., 10 Blatch. 503 ; 10 N. B. R. 475; Story Eq. Juris, ss. 139, 64 c.; Hunt v. Rousmaniere’s Admr., 1 Peters, 1.</p>

<p>This case was heard at the September Term, 1879, on petition to foreclose a mortgage, answer and the report of a special master. Royce, Chancellor, rendered a decree for the petitioner, allowing the usury in payment of the debt. The master found in effect, that the defendant and H. B. Weeks, on the 1st day of March, 1872, executed a mortgage to the petitioner to secure a note given it for $3750, by the said Weeks, of the same date as the mortgage ; that the note was given to secure the previous indebtedness of Weeks, and an old note secured on the same property; that there was a prior mortgage due one Evarts on the same premises amounting to $1679.40 ; that it had been foreclosed, and the order for redeeming would expire April 20, 1880 ; that unless the defendant pays the decree the orator would be obliged to redeem ; that the cash value of the premises was $3500; that Weeks had paid to the orator quite an amount of usury; that he “ makes no claim upon the orator for or on account of the extra or usurious interest so paid by him to the orator, and consents to its being applied in this case if the law will so apply it ” ; that Weeks was adjudged a bankrupt August 31st, 1878 ; that the orator and defendant were petitioning creditors that proceedings for a composition in said matter were duly instituted, and a composition of fifteen cents on the dollar was duly passed and confirmed by the requisite number and amounts of the creditors of said Weeks, and confirmed by the court; that the petitioner proved a debt as unsecured of $3500, against the Weeks estate ; that, “ there was in fact included in said amount, as proved the sum of $2500, which was a part of the note ” secured by the mortgage in question. The master also reported that the said defendant and Weeks were in partnership up to some time in 1874, and owned as partners the real estate described in this mortgage, and, also, a store and lot on Depot street in St. Albans ; that while they were in partnership this mortgage was executed ; that after the dissolution of said firm, in 1874, Weeks quit-claimed his interest in the real estate described in the mortgage in question to the defendant; that the defendant quit-claimed his interest in the Depot street store to said Weeks; that the defendant proved $1000 against the bankrupt estate of Weeks, which indebtedness was described by the defendant in the proof of his claim, as being “ the difference between the value of my store on Main street (the property in question) less a mortgage to Jonathan Evarts of $1500, which is mortgaged to the First National Bank of St. Albans to secure a note of the said Weeks to said bank for about the sum of $3700, and the store-house on Depot street now occupied by said Weeks, upon which I have a mortgage to partially secure me for the mortgage to said bank, which difference in my judgment amounts to the sum of $1000 ” ; that the orator voted upon his claim in favor of the composition; that Weeks paid the fifteen per centum; that the orator received it, and gave the following receipt:</p> <p>District of Vermont, ss. Whereas, the undersigned hold a claim against Hiram B. Weeks amounting to three thousand and five hundred dollars. And whereas, the Ú. S. District Court for said District, Sitting in Bankruptcy, has duly confirmed a proposition of the said Hiram B. Weeks, to pay fifteen cents on the dollar of the claims against him in full discharge thereof. Therefore, I hereby acknowledge that I have received of said Hiram B. Weeks five hundred and twenty-five dollars, in full satisfaction and discharge of said claim. Witness my hand and seal this 5th day of December, A. D. 1878. (Signed and sealed ;)</p> <p>that the defendant also voted on his claim in favor of the composition, and received the fifteen per centum ; that defendant did not sign the $3500 note — (only Weeks) ; that it was expected by all the parties, till Weeks failed, that he would pay this mortgage and defendant, the mortgage on the Depot street property ; that the said receipt was signed by the orator for the purpose of showing a compliance with the bankrupt law in regard to the payment of the fifteen per centum, and for no other purpose.</p> <p>The defendant was surety for Weeks ; he can, therefore, avail himself of the usury. Ward v. Whitney, 32 Yt. 89; 50 Vt. 105 ; 49 Yt. 400. This case is not like Davis v. Converse, 35 Vt. 503, where the principal appeared at the accounting and claimed the application for the benefit of the surety ; 32 Yt. 93. If Weeks claimed the usury it should have been urged in offset in the bankruptcy proceedings in the District Court. U. S. Sts. s. 5073. Effect of composition as to discharging the debt. Scott $ Co. v. Olmstead, 52 Vt. 211; Bump’s Bankr. 8 ed. pp. 617, 618, 726, 728 ; In re Bigelow etal., 3 B. R. 629; Cook v. Farmington, 104 Mass. 212. The receipt is not a discharge. Pomeroy on Cont. s. 234; Story Eq. J. 168, 437.</p> <p>The extra interest should be allowed the defendant. Bank of Whitehall v. Lamb, 50 N. Y. 95; Bank v. Hale, 59 N. Y. 53 ; 9 Wall. 362; Wells v. Robinson, ante, 202. The discharge of Weeks discharges Wood. Byles on Bills, 250 ; Paddleford v. Thatcher, 48 Vt. 574 ; Ellis v. Allen, lb. 549 ; 50 N. Y. 374 ; Pars, on Cont. 1, 27. Effect of the bankruptcy proceedings. Byles on Bills, 250 ; In re McDonald, 14 N. B. R. 477 ; Reporter, 10, 696. It is an accord and satisfaction ; — a settlement. In re Odell, 16 N. B. R. 501; Well v. Lamfrayr 16 N. B. R. 205; Miller v. McKenzie, 13 N. B. R. 499. Did this property belong to Weeks, his assignee could sell it free of encumbrance, and pay the orator the amount which it had voluntarily fixed as the value.of its security. Bump on Bankr. 174, 618; In re Trafton, 14 N. B. R. 507. As to the receipt, see Paddleford v. Thatcher, 48 Yt. 574.</p>

<p>This case was heard at the September Term, 1880 ; Royce, Chancellor, upon the report of a special master, who allowed the defendant $162.60, paid as extra interest, in payment of the debt —sustained the master and decreed accordingly. The facts sufficiently appear in the opinion of the court.</p> <p>A payment upon one note is never regarded as a payment upqn any other note. Ewing's Executor v. Griswold, 43 Vt. 400.</p> <p>The usury so paid was not included in the notes now held by the orator or the $1,299.17 note, and cannot be regarded as a payment upon either of said notes. Usury, when paid, is never treated as a payment upon a note, except in cases where tbe usury is included in the note, and when paid is endorsed upon the note. Davis v. Converse et al., 35 Yt. 503 ; Grow v. Albee, 19 Yt. 540; Ware v. Whitney, 32 Yt. 89; Day v. Cummings, 19 Yt. 496 ; Nichols Bliss v. Bellows, 22 Yt. 581.</p> <p>The usury paid to Babbitt is a claim against him, and cannot be pleaded as a set-off against the orator. Pleas in offset are only allowed between the actual parties to a suit. Adams v. Bliss, 16 Yt. 39 ; Phelps v. Bullceley, 20 Yt. 17.</p> <p>cited Ward v. Whitney, 32 Yt. 91; Churchill et al. v. Cole et al., 32 Yt. 96 ; Day v. Cummings, 19 Yt. 500, 501; Grow v. Albee, 19 Yt. 542; Ward v. Sharp, 15 Yt. 115 ; Day v. Dunham, 2 Johns. Ch. 182 ; Davis v. Converse, 35 Yt. 503.</p>

<p>Statute of Limitations. Indorsement on Note, Gen. Sts. c. 63, s. 27, (N. L. s. 975.)</p> <p>1. An indorsement upon a note, not in the handwriting of the party making the payment, is some, though not sufficient proof under the statute. Its weight, as evidence, depends tipon the fact, whether it was made long before, or after, the statute had run on the note ; whether for, or against, the interest of the owner of the note, to have made it.</p> <p>2. Statute of Limitations, Gen. Sts. c. 63, s. 27, (R. L. s 975) indorsement — construed.</p>

<p>Action on the case. Heard on demurrer at the September Term, 1880, Royce, J., presiding. The Court, pro forma, sustained the demurrer.</p> <p>DECLARATION.</p> <p>In a plea of the case for that whereas, heretofore, to wit, on the 1st day of October, A. D. 1879, at St. Albans aforesaid, the plaintiff being sole and unmarried and fully competent to contract to marry, and the defendant representing himself to be sole and unmarried, and fully competent to contract to marry, the said defendant did, in consideration of the promise of the plaintiff to marry him, the said defendant then and there at St. Albans aforesaid, faithfully promise to marry the said plaintiff; and the plaintiff, confiding in said representations and promise, hath from that time to this, remained and still is sole and unmarried, and had no knowledge or information that any of said representations of the defendant were false or fraudulent at the time of making of said mutual promise to marry. And the plaintiff avers that said representations of said defendant were false, fraudulent, deceitful and untruthful in every respect, and that the said defendant then was and for a long time before, had been and still is, living with her, the said defendant’s wife at St. Albans aforesaid, all of which the said defendant well knew ; and so the said defendant craftily, subtly, deceitfully, maliciously, deceived and defrauded the said plaintiff in obtaining said promise to marry, and grossly and wantonly wronged and injured the said plaintiff by depriving her of her good name and reputation, whereby the plaintiff has suffered great wrong and injury and damage to her feelings and disappointment of her reasonable expectations, money value, and worldly advantages of marriage, permanent home, and advantage of domestic happiness. To the damage of the plaintiff three thousand dollars.</p> <p>The declaration is sufficient. An action for deceit can be maintained and is the proper remedy. 1 Hilliard on Torts, 3, note a; 2 lb. p. 73, s. 2, note a; Howard v. Gould, 28 Vt. 523; 4 Jacob’s Fisher’s Dig. 5569 ; 2 Chit. Cont. 974, n.; Foote Stone v. Fmerson, 10 Yt. 344; Blossom, v. Barrett et al., 37 N. Y. 434; Noyce v. Brown, 38 N. J. 228 ; Wither v. Brooks, 65 Me. 14 ; Bigelow on Fraud, 46, 47 ; Sedgw. on Dam. 48.</p> <p>The form of the action is wrong. This error appears on the face of the declaration. 1 Chit. PI. 193, 194 ; Bay v. Fdwards, 5 T. R. 648 ; Lovignos v. Boome, 6 T. R. 125 ; McManus v. Oriekett, 1 Bast, 10. A married man can make a binding contract to marry although broken when made. 2 B’s Law Die., Promise of Marriage, 7 ; Chit, on Cont. 587, 802 ; Wild v. Harris, 62 B. C. L. 999; Millwood v. Littlewood, 5 Ex. 775 ; Blattmacher v. Soal, 29 Barbour N. Y. 22 ; 2 Pars, on Oont. 67, (6th ed.) 873. The plaintiff has not suffered damages and the defendant has not been guilty of an actionable wrong. Paisly v. Freeman, 3 T. R. 51; Nye v. Marriam, 35 Yt. 438.</p>

This case was heard on special demurrer to the declaration, September Term, A. D. 1878, Royce, J., presiding. The demurrer was sustained, and judgment for the defendant to recover his costs.

This case was tried by jury at the September Term, 1880. Plea, not guilty. Royce, J., presiding, ordered a verdict for the defendant, the plaintiff not desiring to go to the jury on the question whether the stock-ledger and transfer book were at the office of the corporation on the 18th day of July, 1876, when the demand and refusal were made. The facts bearing upon the questions discussed by the court are sufficiently stated in the opinion.

Heard at the April Term, 1880, Eoyce, J., presiding. The County Court affirmed the order of the Probate Court disallowing the claim. The facts are sufficiently stated in the opinion of the court. cited Gen. Sts. c. 53, s. 45 ; Waterman, Guard., v. Wright, 36 Yt. 164 ; Admr. Sargent v. Admr. Kimball, 37 Yt. 320 ; Lytle v. Bond’s Estate, 39 Vt. 388.

Heard on the report of an auditor, at the September Term, 1875, Royce, J., presiding. Judgment, pro forma, for the defendant.

This case was tried at the September Term, 1880, Royce, J., presiding. Action on the case ; plea, the general issue, and trial by jury.

<p> Usury. </p> <p>1. Loaning money and receiving a deed of the premises of the borrower, and giving back, a lease of the same, reserving a rent of twelve per centum on the loan, is, in effect, taking a mortgage as security; and the transaction is usurious.</p> <p>2. But here the usury was reserved in the contract, and, hence, each payment of usury was a payment on the debt, so that strictly, there could have been no usury paid till the last payment, when the premises were deeded back; and the court below, not finding any usury paid at that time, the plaintiff cannot re- ' cover.</p> <p>3. The acknowledgment of the receipt of the consideration named in a deed is only</p> <p>prima facie evidence of the payment of that sum. d. When parties agree to try their case by the court, its finding, on legal evidence, is as conclusive as fhe verdict of a jury; and the Supreme Court has no power to revise the action of the County Court in regard to the weight to be given to testimony legally before it when sitting as the trier of facts.</p>

<p>This cause came on for hearing upon bill, answer, replication and proofs. At the September Term, 1880, Royce, Chancellor, proforma, dismissed the bill.</p> <p>The bill of complaint set forth, that James R. a,nd Harriet N. Watson conveyed to the orator by deed of mortgage executed October 81, 1870, certain land and premises to secure the payment of $2978.50 specified in a written agreement of the same date, signed by said J. R. Watson and the orator.</p> <p>On the 3d day of November, 1873, said Watsons executed another mortgage to the orator of the same premises to secure the payment of a note bearing date November 1, 1873, for $1800, which was a renewal note for the sum unpaid, secured by the mortgage deed of October 31, 1870.</p> <p>It is further alleged that said mortgage of November 3, 1873, and the note secured thereby, were taken at the solicitation of the orator, and for its convenience in the transaction of business ; that the orator would not have made said change, if its officers had supposed that the lien by the mortgage of October 31, 1870, would be released ; that the officers and agents of the orator did not know of the existence of the defendant’s mortgage on the 3d day of November, 1873, nor until a long time after, and would not have discharged the mortgage of October 31, 1870, and taken the one of November 3, 1873, had they known of it; that the orators and Watson did not intend to release the mortgage of October 31,1870, by taking the mortgage of November 3d, 1873.</p> <p>The orator further set forth that the said Watsons executed to the defendant a mortgage deed of the same premises on the 1 st day of May, A. D., 1871, to secure the payment of a note for the sum of $345 and future advances; and that she is in possession of the same, claiming her rights under said mortgage.</p> <p>The orator prays that the equity of redemption of the defendant in said premises may be foreclosed.</p> <p>The above is all of the bill, necessary to understand the ques tions presented to the court. The defendant demurred to the bill, and answered, claiming among other things, that she loaned Watson |647, and that this went to pay the orator’s first mortgage ; that her mortgage was known to the treasurer of the Trust Company when the last one was given, November 3d, 1873. The following is a copy of the discharge on the town records: “ The notes secured by this mortgage have been paid by renewal, and this mortgage is therefore hereby discharged.”</p> <p>This allegation of the answer is upon information and belief, and is not evidence for the defendant. Loomis v. Fay, 24 Yt. 240. The transaction of November 3, 1873, did not extinguish the debt. A mortgage is given to secure the debt, not the evidence of it. Hilliard Real Prop. vol. 1, 616.</p> <p>What constitutes such a payment is illustrated by the case of a vendor’s receiving bills for the purchase-money, signing a receipt for the amount as cash, and actually conveying the estate as upon payment; Sugden on Vendors, vol. 2, 885 ; Manley v. Slason, 21 Vt. 271, decided just before the abrogation by statute of the vendor’s lien.</p> <p>As between the orator and third persons, the parties would not stand upon the record if the third party had actual notice of the real situation. Not having notice of the real situation, third persons, misled by the record and making advances upon the strength of it, are protected. The transaction, then, does not extinguish the original debt nor the security for it. Gregory v. Thomas, 20 Wend. 18 ; Davis v. Maynard, 9 Mass. 246 ; Seymour v. Darrow, 81 Vt. 122 ; Lasell v. Burnett, Blackf. (Ind.) 150 ; Packard v. Kingman, 11 Iowa, 209 ; Bruce v. Helton, 85 Iowa, 157 ; Gregory v. Thomas, supra ; Shaver v. Williams, 87 111. 469.</p> <p>Upon this question the intention of the parties is, of course, material. Dana v. Binney, 7 Vt. 493 ; McDonald v. McDonald, 16 Vt. 630; 1 Ves. Sen. 317.</p> <p>The orator cannot predicate any right of recovery or relief upon his own negligence in not ascertaining that which he might have done had he been in the exercise of ordinary diligence. Gen. Sts. c. 65, s. 29; Jones on Mort. ss. 927, 948, 966, 969 ; Stearnes v. Godfrey, 16 Me. 158 ; McDaniels v. Bank of Butland, 29 Vt. 230.</p> <p>That the orator did not understand the legal effect of taking the new mortgage and cancelling the old one is immaterial. Fletcher v. Jackson, 23 Vt. 596 ; Proctor et al. v. Thrall et al., 22 Vt. 267. The discharge upon the record was notice to all parties interested, or that might become interested, in the mortgaged premises, that the lien created by the mortgage of October 31, 1870, had been removed.</p>

<p>This case was tried at the September Term, 1880, by the court, Royce, J., presiding. It is an appeal from the decision of the commissioners of the estate of Jehiel Holdridge, late of St. Albans, deceased. The declaration is assumpsit upon a supposed award of G. H. Sheltus and S. H. Kellogg, claimed by the plaintiff, Ellen S. Holdridge, to have been made in her favor as administratrix of Oscar B. Holdridge’s estate, against the said Jehiel Holdridge in his lifetime ; and also contained the general counts in assumpsit. Plea, the general issue and Statute of Limitations, and notice of special matter. Replication, new promise.</p> <p>The following is the award :</p> <p>St. Albans, Oct. 12,1862.</p> <p>We have agreed that Oscar shall have three hundred dollars for his time at home after his marriage.</p> <p>(Signed) Gr. H. Sheltus,</p> <p>S. H. Kellogg.</p> <p>The said award was presented before the commissioners of the estate of said Jehiel Holdridge, as a claim in favor of Oscar B. Holdridge’s heirs, and was not presented as a claim in favor of the estate of Oscar B. Holdridge, nor as a claim in favor of the plaintiff; and the defendant claimed that for this reason the plaintiff could not sustain this suit, but the court ruled otherwise, to which ruling of the court the defendant excepted.</p> <p>The other facts are sufficiently stated in the opinion of the court.</p> <p>cited as to the award, JSnnos v. Pratt, 26 Vt. 630 ; Marsh v. Packer, 20 Yt. 198 ; 27 Yt. 241; 1 Chit. PI. 391. It was for the Probate Court to determine in whose name the appeal should be taken. 16 Yt. 223 ; 28 Yt. 627 ; Gen. Sts. 402, s. 19.</p> <p>This claim not having been presented to the commissioners of Jehiel Holdridge’s estate, either as a claim in favor of Oscar B. Holdridge’s estate, or as a claim in favor of the plaintiff, is barred by Gen. Sts. c. 53, s. 14. The presentation of a claim before commissioners is the commencement of the suit — and an appeal can be taken to the County Court only by the party in whose name the claim was presented. The County Court has only appellate jurisdiction for rehearing such claims and only such as have been presented before the ..commissioners for allowance. Adams et al. v. Adams et ah, Admrs., 21 Yt. 162.</p> <p>The award is void for uncertainty. 16 Yt. 450 ; 1 D. Chip. 227 ; 15 Yt. 215.</p>

Heard upon petition and demurrer at the April Term, 1880, Pierpoint, Chancellor. It was a petition in common form to foreclose a mortgage. Demurrer overruled. A mortgagor who has conveyed away his equity of redemption is not a necessary party to proceedings for foreclosure. Story’s Eq.

This case was heard at the September Term, 1879. Powers, Chancellor, decreed that the defendant C. C. Field was entitled to a homestead. Petition to foreclose a mortgage. It was served on the defendants the 20th day of March, 1878. The mortgage was executed on the 23d day of September, 1868. The premises were situated in Essex.

<p>Murder, of First and Second Degree. Dying Declarations. Gen. Sts. c. 120, s. 12, (N. L. ss. 1704, 1705).</p> <p>1. If dying declarations relate to other and former matters; if they do not relate to the direct transactions and circumstances from which the death of the person murdered ensues, they are inadmissible; thus, the following question to the wounded man, and his answer, are not admissible. “Had either of them threatened to injure you before” ? “Yes; my wife (one of the respondents,) has threatened a thousand times to kill me before. She threatened to kill me before she went away the last time. She went away in July; I think, though, it was August 10th. She came back day before yesterday.”</p> <p>2. If one inflicts a mortal wound, but before death ensues, another kills the same person by an independent act, without concert with, or procurement of, the first man, he, who caused the first wound, cannot be convicted of murder, or mattslaughter, or an assault with intent to Mil, on an indictment charging both jointly with murder.</p> <p>3. The charge of the court as to self-defence is held correct.</p> <p>4. Also, as to the distinction between murder of the first and second degree.</p> <p>5. Gen. Sts. c. 120, s. 12 (R.'L. ss. 1704,1705,) providing that one tried for murder, may be found guilty of manslaughter, — construed.</p>

<p>This case was tried at the September Term, 1880,' Pierpoint, Ch. J., presiding.</p> <p>Scire facias on a recognizance in a criminal cause. Pleas, nul tiel record, that no warrant for the arrest of the defendant Lamoine was issued ; that she was not arrested and brought before Chapman, Assistant Judge ; that defendants did not acknowledge themselves indebted to the plaintiff, and that they did not enter into a recognizance for the appearance of the female defendant to answer to the information in the declaration mentioned, modo et forma, &c. Trial by jury. The plaintiff offered in evidence the information set forth in the declaration, to the admission of which the defendants objected, upon the ground that it was not correctly described and set forth in the declaration. The plaintiff put in evidence the warrant with the officer’s return thereon ; the recognizance mentioned in the declaration ; the docket entries and the record in the case of State v. Lamoine ; and the entries and records of the forfeiture of said recognizance mentioned in the declaration. To the admission of said docket entries the defendant seasonably objected; not to the manner in which they were offered, but to their admission in any manner ; but the objection was overruled.</p> <p>The defendants insisted that the evidence was not sufficient to entitle the plaintiff to recover, and requested the court to direct a verdict in their favor. The court refused to so order; but instructed the jury that the plaintiff was entitled to recover upon the evidence. The warrant was signed by the county clerk, and is fully set out in the opinion.</p>

Petition for Mandamus. The relator in May, 1876, was ordered by a justice of the peace to enter into recognizance to appear to the County Court under a bastardy prosecution. The case was continued till October, 1878, when he was tried, and found guilty. The order of commitment was issued two days later ; but he was not arrested till the 18th day of the next December.

<p>Case heard at the April Term, 1878, Pieepoint, Oh. J., presiding. This was information filed by the State’s attorney charging the respondent with an assault with intent to kill and murder. Plea, not guilty; and trial by jury. The request of the respondent’s counsel is stated in the opinion of the court.</p> <p>CHARGE:</p> <p>Now in reference to this question of intent, it is necessary that the intent should be established in order to constitute either killing or murder, — intent to kill or intent to murder. It is necessary that you should be satisfied that he did the act with the intent of taking this man’s life in either event. In either event that intent must be established. Well, now, a man’s intent in doing an act of that kind cannot ordinarily be established by positive proof, that is, when a man lifts his pistol and aims it at another, even though he intends to take his life, he don’t ordinarily say: “ I do this act with the intention of taking that' man’s life.” If he was to do it with such a declaration, and that declaration was proved, then you would have direct evidence on the question of intent. But such a case as that would rarely occur. It might. If a man was to say in the act of firing, “ I will fire and I will kill you,” it would be direct evidence, that he intended to do what he said he would do. Ordinarily, such an act is not committed with the declaration of intention ; but the intention is to be gathered from the manner in which the transaction occurs. If a man, having a loaded pistol in his hand, levels it, or aims it at another and fires, the presumption is, that he intends just what the result would naturally be of the act that he does — that he intends to shoot the man because he does the act — intends to shoot him because he makes the necessary demonstration to that end, and although he may fail in taking of life, in the absence of anything to show the contrary, the man who deliberately levels his pistol loaded and shoots another, the presumption that the jury have a right to draw the inference, which the jury have a right to draw from the act in the absence of anything that tends to explain it, is that he intends the result which would naturally follow from the shooting, that he intends to shoot the man, that he intends to take his life. Whether it is in self-defence, or whether it is with a deliberate purpose of committing murder, or whether it is in the heat of passion, so as to constitute manslaughter, the presumption is that he intends that which his acts necessarily and naturally indicate to be his intent in the absence of any explanation.</p> <p>One Gordon Burke, a witness for the State, testified that previous to the affray at Goodwin’s, the respondent told him to go to Goodwin’s house, which was about six rods distant, and in plain view, and get his pay, and if he got into a fight with him he would come over and back him; which testimony was introduced for the purpose of showing an understanding between respondent and Burke that the latter should bring on a fight with Goodwin, and respondent would come and back him, and to show premeditation on respondent’s part. To the introduction of this testimony-respondent objected, but it was admitted, to which respondent excepted.</p> <p>The court charged the jury that Burke’s testimony was testimony tending to show that respondent was present at the place of the affray, to which respondent excepted.</p> <p>The State introduced as a witness, one Joseph Goodwin, who testified that Burke came into his house and threatened to whip him, and that he would shoot him ; that he had come there to see which was the best man ; that thereupon, Goodwin assaulted him and knocked him down ;. that he knocked him down three times. It was conceded that respondent was not in Goodwin’s house during this time.</p> <p>Respondent objected to the admission of this testimony, but the same was admitted, to which he excepted.</p>

<p>[ In Chancery. ]</p> <p> Amendment of Bill in Chancery. Answer. Replication. Estoppel. </p> <p>1. An amendment to a hill in chancery is not alloviable which is repugnant to, or inconsistent viith, the original hill, nor one substantially making a new bill.</p> <p>2. Much greater strictness prevails in allowing amendments to injunction hills, and where the amendments must he sworn to.</p> <p>3. If the evidence had clearly proved that the orator was entitled to a homestead in the mortgaged premises, the court could render him no aid because his bill does not allege that the premises, at the time the mortgages were given, were used and kept for a homestead by the orator and his family.</p> <p>4. Strictly no evidence is admissible on the part of the orator without replication to the answer.</p> <p>5. The orator procured the signature of his wife to a mortgage without any agency of the defendant, and without his knowledge of her mental incapacity. Under such circumstances, the court say, that there is great propriety in holding that he is equitably estopped from claiming such incapacity to invalidate the deed.</p>

<p> Contract. Headstone. Reference. </p> <p>The plaintiff contracted with defendant for a dark blue Rutland marble headstone; and “ to do a perfect job.” The defendant refused to accept the atone when delivered, claiming that it was defective, because of a “ whitish line or streah about a sixteenth of an inch wide . . . running diagonally downward across the stone and through, in striking contrast with the general color and appearance of the stone.” The referee did not find that the “ streah ” rendered the stone defective, or that it did not answer the contract. Action, general assumpsit. Held,</p> <p>1. If the case had not been referred, probably no recovery could be had upon the general counts.</p> <p>2. All questions as to the form of the declaration are waived by the reference.</p> <p>3. The court will not pass upon the question of defective declaration, as it does not appear to have been raised in the County Court; and, also, there was no exception to the report.</p> <p>4. The plaintiff can recover the contract price.</p> <p>5. Viall v. Eubbard, 37 Yt. 114, distinguished.</p>

<p> Trespass. Assault. </p> <p>1. Tlie plaintiff gave lessons in music, one day in each week, to the defendant’s daughters, and lodgedathis house over night. A private lodging room was assigned her by the defendant and his wife. On one occasion at midnight the defendant stealthily came into the room where the plaintiff was sleeping, sat down upon her bed, leaned over her person, and made repeated solicitations to her for sexual intimacy, which she repelled. Held, that the plaintiff’s right to her private sleeping room, during the night, was exclusive; and that trespass, quare clausum will lie against the defendant.</p> <p>2. Sitting on her bed, leaning over her person, &c., under the circumstances, was an assault. „</p> <p>3. In such a ease exemplary dcwnapes'should be awarded by the jury.</p> <p>4. The question is whether the defendant’s conduct injured the plaintiff; not whether it would a a person of ordinary courage.</p>

This was an action'on the case for false warranty in the sale of a lot of accounts. Trial by the court, on the general issue. June Term,.1880, Ross, J., presiding.

<p> Evidence. Practice. Offset. </p> <p>The plaintiff brought an action of assumpsit; the defendant pleaded the general issue, offset, and gave notice of settlement; and on trial waived his offset, claimed that at the time of the settlement he held a note for $29, against the plaintiff, and produced the note in court. The defendant denied the settlment, and offered evidence to prove that the consideration of the note was illegal; that it was given for costs of a criminal prosecution; and that the same costs had been allowed by the county auditor and paid the defendant by the county clerk. Held, that the evidence was admissible.</p>

Case heard at the December Term, 1879, Powers, J., presiding. Action, to recover damages for injury sustained by the plaintiff by reason of alleged insufficiency of a highway. The court below held that the notice to the selectmen was not sufficient. NOTICE.

Case tried at the June Term, 1880, Powers, J., pre.siding. Trial by jury ; verdict for the defendant. Action for recovery of damages alleged to have been sustained by reason of the default of Calvin Skinner, town clerk of Royal-ton, in not properly indexing a certain mortgage from Zeb B. French to Esther E. French, on a certain farm in Royalton that plaintiff bought. Plea, the general issue.

This case was tried at the June Term, 1880, Powers, J., presiding. Action, general assumpsit. Trial by jury. The court directed a verdict for the defendant on the plaintiff's testimony.. The evidence and facts are substantially set forth in the opinion of the court, except the following order: The Treasurer of Strafford will pay Polly C. Bugbee three hundred dollars out of any money in the Treasury of said town, not otherwise appropriated, for money borrowed.

This case was heard at the December Term, 1879, Powers, J., presiding. The plaintiff filed amended counts; and defendant moved to dismiss. The court overruled the motion to dismiss, and held the new counts to be a proper amendment to the declaration. No other question was passed upon.

This cause was heard at the December Term, 1880. Pierpoint,Chancellor, decreed, that, upon the bill and answer in this cause it is pro forma adjudged that Sarah M. K. Bullock, mentioned in the orator’s bill, was lawfully seized in fee simple, at the time of her decease, of all the land described in said bill, and that the orator is lawfully entitled to hold and .administer the same as the executor of her last will.

Case for damages occasioned by the insufficiency of highway. Plea, the general issue, and trial by jury, December Term, 1878, Pierpoint, Ch. J., presiding. The defendant claimed that the plaintiff was guilty of contributory negligence in not having his horses properly shod.

<p>This was an action of trover for a mare and colt. Plea, general issue and notice. Trial by jury, December Term, 1880, Pierpoint, Ch. J., presiding.</p> <p>It appeared that on the 19th day of March, 1875, the plaintiff sold and delivered said mare to one Cram, and reserved a lien on the mare to secure the payment of the purchase-money, and she was to remain the property of the plaintiff till paid for in full. The lien was payable, ten dollars the first of June, and the balance six months from date, and the same was seasonably recorded, and had never been paid. Said Cram sold the mare, and she was subsequently purchased by the defendant, together with her suckling colt, which followed the mare at the time of the attachment in this case, and was less than a year old. The plaintiff never gave any authority to dispose of the mare, and she was sold without his knowledge or consent.</p> <p>The other facts in the case stated in the opinion of the court.</p>

Case tried at the December Term, 1879. Trial by jury, Veazey, J., presiding. The facts are sufficiently stated in the opinion of the court, except the following.

Action, trespass on the freehold. Trial by jury, December Term, 1878, Dunton, J. presiding. The facts sufficiently appear in the opinion of the court. It was competent for the plaintiff to show that Sidney B. Mc-Eowen was neither a stockholder in the U. S. Pottery Company, and never acted as a director therein. Carey v. Denison et al., 15 Yt. 400 ; Barrett v. Copeland, 18 Yt. 69 ; Witheral v. Goss et al., 26 Yt. 750 ; Boardman v. Goldsmith, 48 Yt. 409.

Case heard at the June Term, 1880, Yeazey, J., presiding. The court rendered judgment, pro forma, that the trustees are chargeable. The facts found by the commissioner are substantially stated in the opinion. Parol evidence was admissible to show the consideration of the deed. Beach v. Bullard, 12 Yt. 100 ; 22 Yt. 506 ; Perkins v. Adams, 30 Yt. 230 ; Allen v. Spofford, 42 Yt. 117.

Case heard at the February Term, 1880, Yeazey, J., presiding. The court rendered a judgment, fro forma, that the decree of the Probate Court be affirmed. The Probate Court decreed that the husband was entitled to all the real estate, which was worth $1200 ; and one half of the personal property, which was worth $395. The case is stated in the opinion of the court.

Case heard at the March Term, 1880, Veazey, J., presiding. The court appointed a commissioner to take the account. The case appears in the opinion of the court.

Heard at the September Term, 1880, Veazey, J., presiding. The court rendered judgment, pro forma, on the report in favor of the estate ' for $1522.79. The commissioner found, among other facts: Mrs. Wakefield had, at thejtime of her decease, U. S. 5-20 government bonds of the issue of 1867, representing at their face value three thousand eight hundred dollars, on deposit at the First National Bank of Brattleboro.

Case heard at the March Term, 1880, Veazey, Chancellor, on bill, answer, replication, master’s report, and exceptions thereto by the orator. The master allowed the defendant $194.50, for extra work done for the firm .before its dissolution ; and $20 for collecting up and preserving the mill property after the mill was destroyed, and some two years after the dissolution of the partnership. The other facts sufficiently appear in the opinion of the court.

Case heard at the March Term, 1880; Action, book account.. Judgment, pro forma, was rendered upon .the report of an auditor for the plaintiff to recover the sum of $16,833.63. The exceptions were allowed and certified by the first assistant county judge, Hosea B. Ballou, presiding, as the judge of the Supreme Court, holding this term, was disqualified by reason of having been of counsel.

Heard at the March Term, 1880, Veazey, J., presiding, on motion, the court quashed the proceedings. The defendant moved that the proceedings be dismissed and quashed ; “ because it says that David E. Robbins and James W. Gould, the justices of the peace who made said order of removal, were also two of the overseers of the poor of said town of Wind-ham, who made said complaint, as appears by said complaint and order of removal.” ABSTRACT OF PROCEEDINGS.

<p>Case heard at the September Term, 1880, Veazey, J., presiding. Trial by the court; judgment for the defendant.</p> <p>It was agreed that the facts were as follows :</p> <p>Action founded upon the following receipt :</p> <p>Received of Edward L. Roberts, Deputy Sheriff within and for the . County of WiDdham, and State of Vermont, four cows, one two-year-old heifer, one horse and one two-year-old colt, which I promise and agree to keep free of costs of expense to the said Edward L. Roberts, and deliver the same to the said Roberts, or his order, on demand, or pay the sum of three hundred dollars. (Signed.)</p> <p>The property mentioned in said receipt was attached by Sheriff Huberts on the 1st day of April, 1875, on a writ in favor of Ophelia L. Snow against Daniel Carpenter and Daniel C. Carpenter as the property of said Daniel Carpenter. Said property was at the time of the attachment the property of said Daniel; and Daniel C. had no interest therein. Daniel Carpenter died on the 23d day of January, 1879. The suit of Ophelia Snow against Daniel Carpenter and Daniel C. Carpenter was pending in the Supreme Court, in said Windham County, at the time said Daniel Carpenter deceased. Upon the calling of the docket at the opening of the Supreme Court, at its February Term, 1879, on the 17th day of February, the death of Daniel Carpenter was suggested on the record of that term ; and on the 21st day of said February, said Supreme Court rendered final judgment in the suit in favor of plaintiff Snow, in affirmance of the judgment of the County Court for said county at its September Term, 1877 ; and execution -was awarded and issued against Daniel C. Carpenter only. The judgment of said County Court, at the September Term, 1877, was in favor of plaintiff Snow against both defendants, for the sum of $2008.33.''</p> <p>About the 1st of March, 1879, the plaintiff Roberts made demand upon the defendant for the return of the property named in the receipt, and the return was refused. On the 3d day of February, 1879, the defendant, Austin Carpenter, was duly appointed administrator upon the estate of said Daniel Carpenter; and he now holds such office, and the commissioners were appointed upon said estate on said 3d day of February. The property attached by the plaintiff, and receipted by the defendant, never came into the hands or possession of the defendant until after he was appointed administrator, as aforesaid, when the same or the avails thereof, as such administrator, came into his hands.</p> <p>This receipt is a contract, absolute in its terms, free from ambiguity. It binds defendant to return the property when called for, or pay its stipulated value. Spencers. Williams, 2 Vt. 209 ; Lowry v. Cady, 4 Yt. 504 ; Allen v. Butler, 9 Yt. 122 ; Parsons v. Strong, 13 Yt. 235 ; Pettes v. Marsh, 15 Vt. 454 ; Brown v. deed, 33 Yt. 147 ; Soule v. Austins, 35 Yt. 519 ; Catlin v. Lowry, 1 D. Chip., 396; Bowman v. Conant, 31 Yt. 479; Ide v. Fassett, 45 Yt. 68.</p> <p>The genera] property of chattels attached remains in the owner; and the attaching officer can maintain an action therefor only upon the ground of his liability for it. Gen. Sts. 303, s. 94 ; Johnson v. Edson, 2 Aik. 299 ; Mussey v. Perkins, 36 Yt. 690 ; Collins v. Smith, 16 Yt. 9 ; Hanston y. Howard, 39 Yt. 54; Adams v. Fox, 17 Yt. 361; Learned v. Bryant et al., 13 Mass. 224.</p>

Case heard at the September Term, 1880, Yeazey, Chancellor, on bill, answers of the several defendants, and master’s report. The court, pro forma, dismissed the bill. The case is stated in the opinion of the court. There is no contract entered into between parties that so much requires the careful scrutiny of courts as those of this nature. Erízale v. Dearth, 28 Vt. 787 ; Devereaux v. Cooper, 11 Yt. 103; Dunlclee v. Adams, 20 Vt. 415.

<p>Sale. Change of Possession. If Property is in the Possession of Third Party, such Party must Understand that he is Keeping it for Vendee. JEvidenee. Trespass.</p> <p>1. W. stored his sleighs and wagons in P’s cider mill near by. While there he sold the one in dispute to H., the plaintiff; hut it was not moved at the time of sale. After a few months P. set it, with the rest, outside, and so nbtified W. W. thereupon, notified H., and H. engaged W. to get it removed to some other place. W. employed his own son; and the son moved it to 0’s ham. It did not appear what O. said, or that he knew the sleigh had been sold to H. Reid, that there was not a sufficient change of possession.</p> <p>2. When personal property sold is in the control of a third party, such party must understand that he holds it for, and that his possession is the possession of the purchaser, or it is attachable by the creditors of the vendor.</p> <p>3. When an officer is about to attach property in the possession of some party other than the defendant in the writ, he is hound to observe and inquire; observe that it is in the apparent possession of such third person, and inquire whether such apparent possession is in his own right, or the right of some person other than the defendant. But the officer is not bound to inquire further of other parties.</p> <p>4. The vendee must prove that the possession of such third party is his own possession, rather than that of the vendor; and that the place where the property was situated at the time of the attachment was in fact hired for him for the purpose of storing or keeping it.</p> <p>5. What the vendor said, after the sale as to the ownership of the property, is not admissible as an admission, but only to impeach him as a witness; hence, he should first be inquired of, when on the stand, as to what he said, in accordance with the rules pertaining to the use of such testimony.</p> <p>6. In determining the value of a sleigh the witness was properly allowed to state how much the several parts were worth, as the body, pole, running part, &c.</p> <p>7. What an article brings at a sheriff’s sale, at, or near the time of conversion, is admissible evidence on the question of damages.</p>

<p>Case heard at the March Term, 1880, Yeazey, J., presiding. Trial by court. Action, trespass quare clausum. Pleas, not guilty, and two special pleas in bar. Replication to the two special pleas de injuria, and issue joined on the first. The case is stated in the opinion of the court.</p> <p>The word “ sold ” is one of general description, and is followed by a dejinite enumeration and a particular description of each ex-eluded lot. Words of general description in a deed, are always controlled by those which are more definite and particular in their descriptive character. Greenl. Cruise on Real Prop. vol. 4, pp. 271, 245 ; Bromerd et al. v. Peck § Colby, 34 Vt. 500 ; Hey-ward v. Perrin, 10 Pick. 228 ; 1 Greenl. Ev. s. 301; Bidgway v. Bowman, 7 Cush. 268.</p> <p>There is no warrant for the application, in this case, of the rule for construing deeds most strongly against grantors. Prof. Washburn, in his treatise on Real Property, vol. 2, p. 628, says that “ this rule is the last which courts apply, and is never resorted to so long as a satisfactory result can be reached by other rules of analysis and construction.” Flagg, Admr., v. Fames et al., 40 Vt. 16 ; Adams et al. v. Warner el al., 23 Vt. 411, 412.</p> <p>The enumeration of the lots following the words of exception, “ lots sold,” was unnecessary. The numbers cannot add to, or take from, that which was actually severed from the grant. The plaintiff had just as much right to enumerate twenty other lots, not sold, under his exception, that he had the two in controversy. He bargained and granted all his title and interest in the land described. To allow the plaintiff to claim the two lots in controversy would be. repugnant to the grant, and this the law does not permit. 3 Washb. on Real Prop., 370 ; Sprague v. Snow, 4 Pick. 54; Cutler v. Tufts, 3 Pick. 272 ; Hill v. Fuller, 7 Vt. 100 ; Worthington et al. v. Hylyer, 4 Mass, 196.</p> <p>The general clause, “ lots sold,” in the deed, determines its construction, and would convey only lots coming within such description, that is, those which he had previously conveyed, and these would pass, though omitted in the enumeration. Bott v. Burnell, 11 Mass. 163 ; Cutler v. Tufts, 3 Pick. 272 ; Dodge v. Nichols, 5 Allen, 548 ; Drew v. Drew, 28 N. H. 501; Harvey v. Mitchell, 31 N. H. 575.</p> <p>If the language used is equivocal, rendering the meaning doubtful, whether the exception or reservation should be construed to cover only “ lots sold,” in fact, or to embrace all the lots mentioned by number, whether sold or not, it should be taken against the grantor. Keith v. Day, 15 Vt. 660 ; Adams v. Warren, 23 Vt. 411; Flagg v. Fames, 40 Vt. 24.</p>

<p>This case was tried in the County Court, and by request of the bar is inserted here, being one of practical interest.</p>