Volume 54 — Vermont Reports

This cause was heard at the December Term, 1880, Veazby, Chancellor, on bill, answer, replication and proofs. The bill was fro forma dismissed. Held: when if allowed to run as it is accustomed to run, he could operate his machinery to advantage, and at other times it would be let down upon him in such quantities as to waste the power which he otherwise would have.

This case was heard at the December Term, 1880, Veazey, J., presiding. The court, pro forma, rendered judgment, affirming that of the Probate Court. The case appears in the opinion. Judgments in the County Courts are conclusive upon the parties and privies until reversed or annulled. Before the Supreme Court will take jurisdiction, and hear exceptions, there must be a final judgment, or ending of the case in the court below.

Petition to foreclose a mortgage; heard on the report of a special master, at the December Term, 1880. Veazey, Chancellor, decided that the defendant was not entitled to a homestead ; but that the orator was entitled to a decree of foreclosure.

<p>Jury trial, at the June Term, 1881, Veazey, J., presiding. Verdict and judgment for plaintiff. The case appears in the opinion.</p>

Heard on an agreed statement, at the June Term, 1881, Veazey, J., presiding. The court decided that the judgment of the Court of Insolvency be reversed, and the petition be dismissed. The case appears in the opinion.

Heard at the June Term, 1880, Veazey, J., presiding, on the report of a referee. The court ruled, proforma, that the defendant was entitled to recover. $36.19. The action was assumpsit, with no pleas filed in the case.

Heard at the December Term, 1881. Veazey, Chancellor, proforma, sustained the motion of the defendants to strike out certain portions of the orator’s testimony ; and dismissed the bill. The case appears in the opinion. cited 50 Vt. 1; 35 Yt. 208 ; 47 Vt. 368; 17 Yt. 455; 45 Yt. 137.

<p> Damage on Highway. Notice. Bereft of Reason. Verdict set aside. Mistrial. </p> <p>1. The jury were directed, if the verdict was for the defendant, to answer these questions: “ Was the plaintiff in consequence of the injuries sued for bereft of his reason?" “ Was the highway in question at the time and place insufficient and out of repair ?” but without answering these, the jury returned a verdict in the following words: “We find no cause of action, solely on the ground that the plaintiff was mentally and physically disqualified to give legal notice to the town for the space of about two days from the time of the accident, from injuries received therefrom, but after that time was qualified to give said notice within thirty days, hut neglected to do so.” The verdict was set aside. Held, no error; that it was a mistrial.</p> <p>2. Evidence, (independent of all other facts and testimony,) to show the condition of the road several years-after the accident, has no tendency to prove its condition at the time of the accident.</p> <p>3. G. S. c. 25, s. 42, (R. L. s. 3111) — damage on highway, hereft of reason — construed.</p>

Heard at the February Term, 1881, on bill, answer, replication and the report of special masters. Ross, Chancellor, ordered, pro forma, that the bill be dismissed with costs ; but that the temporary injunction stand during the appeal. Hon. Timothy P. Redfield and Hon. Jonathan Ross were appointed special masters, who found and reported substantially as follows : Ira H. Allen, who resided in Irasburgh, in the County of Orleans, deceased on or about April 1, 1866.

<p>Heard by the court at the March Term, 1881, Washington County, Redfield, J., presiding. Audita querela, to vacate the judgment of a justice of the peace.</p> <p>Plaintiffs are a firm of partners, residing and doing business of working leather, at Concord, N. H. The defendant is a tanner, residing and doing business at Waterbury, in this State. The defendant sold to the plaintiffs nineteen sides of harness leather, at an ágreed price of $8 per side, sent by express without inspection. The plaintiffs worked up five of said sides, when they discovered, as they claimed, the leather was defective in quality, and returned the fourteen sides that remained intact to the defendant, with notice that they declined to accept them on the contract; and ' also sent by mail a bank check of $40 to pay for the five sides that had been used by plaintiffs. The defendant sued the plaintiffs and attached the fourteen sides of leather in the R. R, depot at Waterbury.</p> <p>The officer in his return of said attachment returned that he attached said leather as the property of J. R. Hill, G. H. Emery and Josiah D. Dwight, and left a copy with — Jackman, freight agent, where he attached the property, for the defendant. He left but one copy; and there was no evidence of what relation Jackman held to the'R. R. corporation or its managers except the return. The plaintiffs had no notice of this suit until after final judgment therein. The plaintiffs claimed that there was no proof, nor presumption, that Jackman was a proper agent of the railroad managers with whom to leave a copy of a writ of attachment.</p> <p>As to recognizance, the court found that the defendant produced in court a certified copy of judgment in the case with recognizance attached for double the amount of the judgment-damages and cost.</p> <p>The plaintiffs produced in court the magistrate by whom the udgment was rendered, with the original files and record; and offered to show by parol that on the 14th of April, 1880, after the sale of the leather on the execution, the defendant procured the magistrate to take, and certify as a part of the record, a new and enlarged recognizance. The defendant objected to the testimony, but the court received the testimony subject to defendant’s exceptions.</p> <p>The original files show that the defendant with surety, at the time judgment was rendered, recognized for review in the sum of $304, double the amount of damages in the judgment. On the 14th day of April, 1880, after the sale of the leather on the execution, the recognizance was rewritten, and the amount stated in it is $311.96 ; but the first recognizance for $304 still remains attached to the files in the case. All of which appears on the face of the papers, and the time when the recognizance was amended.</p> <p>The defendant then proposed to prove by parol, to which plaintiff excepted, that defendant’s attorney wrote the recognizance, and when he came to the sum to be inserted, he inquired of the magistrate (who held in his hands the files in the case) what was the amount of the judgment, and the magistrate replied $152, and the attorney stated that amount in the minutes of the recognizance. The court found that the defendant and his counsel, Mr. Clough, when they recognized, stated to the magistrate that they recognized for review in double the amount of the judgment. This was at the time judgment was rendered.</p> <p>It was proved that the defendant returned the bank draft (received on the 7th) on the 9th day of February, 1880, which was the day said judgment was rendered, without any intimation that a suit had been instituted. The court were of the opinion that the defendant purposely abstained from giving intimation to the plaintiffs in this correspondence, that they had a suit against the plaintiffs.</p> <p>Judgment that the original judgment be set aside and annulled, with damages $112 (the value of the leather sold on the execution) and costs.</p> <p>One copy was sufficient. 1 Yt. 148. But this question cannot be tried by audita querela. 26 Vt. 501, 494. The records duly certified are conclusive. 26 Yt. 494; 52 Yt. 343. When the parties appeared and recognized they did all that was necessary. Audita will not lie for the neglect of the justice. 42 Yt. 165 ; 27 Yt. 214. The justice had a right to amend his record. 1 Yt. 433; 1 Aik. 321,363; 18 Yt. 598 ; 13Yt. l4; 6 Yt. 541; Freeman on Judg., ss. 53 a, 38, 56, 71.</p>

<p>Arson. Evidence. Stenographer. Counsel’s Right in Commenting upon Evidence. Other Crimes, when not to be Proved.</p> <p>1. Our statute lias not changed the definition of the crime of arson as given hy the common law, — the wilful and malicious burning of the dwelling-house of another; hence, when one burns the dwelling-house that he is lawfully occupying, in legal sense, it is not arson ; for arson is a crime against the security of the dwelling-house as such, and, not, as property.</p> <p>2. To prove that the respondent had a motive for burning the building, evidence was admissible to show his ill-feeling and its intensity towards his wife, who had an interest in it; but not the cause, merits and consequences of the quarrel; hence, it was error to admit proof that the wife had procured a divorce for intolerable severity ; that the respondent had been restrained by injunction from inflicting personal abuse upon her ; and that, subsequently, the marriage was annulled on the ground of bigamy.</p> <p>3. It was error to read in the hearing of the jury the record of the court in the divorce proceedings to establish the competency of the wife as a witness, it being a question solely for the court to determine.</p> <p>4. It was error to allow the State’s attorney to go into an inquiry, against an exception, on the cross-examination of the respondent as to whether he had been complained of and fined by a town grand juror for ill-treatment of his wife.*</p> <p>5. To contradict the respondent by proving that he had testified differently on the former trial under the same indictment the admissibility of the stenographer’s notes of his cross-examination depended on their relevancy ; if relevant, admissible, otherwise, not; hence, it was the duty of counsel to have selected those passages contradictory to his last evidence.</p> <p>6. A stenographer, although a sworn officer of the court, when he reads his notes of the testimony of a former trial, as evidence, must be sworn like any other witness ; but if not, if known to the opposite counsel, the objection should be raised in season that the oversight may be corrected.</p> <p>7. Counsel, in their arguments to the jury, are bound to keep within the limits of fair and temperate discussion of the evidence in the case. Any violation of this rule entitles the adverse party to an exception.</p> <p>8. It is the duty of the court in a criminal trial in its charge to the jury to review and explain the evidence and claims of the respondent as fully andjfairly as those of the State.</p>

<p> Officer. Trespass. Adjournment of Sale. </p> <p>1. A sale of property seized for taxes and sold by a collector at ten o’clock in the forenoon under an adjournment to one o’clock in the afternoon, is irregular, and renders him a trespasser; and the result is the same although the property sold well; was applied on the plaintiff’s taxes; and his attorney was present, knew of his mistake, and said nothing.</p> <p>2. An adjournment of a sale by a collector is proper; but it must be to a definite time.</p>

Heard by tbe court, March Term, 1881, Washington County, Redfield, J., presiding. Action replevin, brought on the statute, to determine the title to five yearlings and two cows taken by the defendant and replevied by the plaintiffs. The cattle were sold at a public sale by a regular officer, on a writ of attachment in favor of one Daniel Bacon v. Bates and Banister.

<p>Indictment for breaking jail. Trial by jury, verdict, guilty, at the June Term, 1881, Caledonia County, Ross, J., presiding. L. Sulloway, the jailer, was called as a witness and testified that he carried the copy of mittimus and officer’s return on same in</p> <p>case State v. Malloy, to Montpelier in fall of 1880, before a Committee on Claims ; and that at the request of Auditor Powell, he left the same with said Powell; that he had not seen it since. No proof was offered to show that either Sulloway, or Mr. Bates, had made any search, or had ever called upon Col. Powell for this copy of mittimus.</p> <p>Sulloway, against the exception of respondent, was permitted to state that the copy left with him by the deputy sheriff, was just like the original produced by said Hobson. The return on the mittimus showed that there was no jail in Essex County.</p> <p>Copy op Mittimus.</p> <p>STATE OF VERMONT, ? To any Sheriff or Constable in Vermont: Essex County, ss. j Greeting.</p> <p>Whereas, At Brighton, in the County of Essex, on the 4th day of September, A. D. 1879, Patrick Malloy, alias Henry Malloy, alias Patrick Kelley, a transient person, was on a charge in the following words, viz : That “ Patrick Malloy, Henry Malloy, alias Patrick Kelley, a transient person at Brighton, in said Essex County, on the 20th day of August, A. D. 1879, with force and arms, one bay mare of the value of two hundred dollars, of the goods and chattels^ of E. C. Robinson, of said Brighton, did then and there wilfully and feloniously steal, take, drive and lead away, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State,” by me, the said Nathan Hobson, justice of peace for the County of Essex aforesaid, ordered to find good and sufficient sureties in the sum of two hundred dollars for his appearance before the County Court next to be holden at Guildhall, in and for the County of Essex, on the third Tuesday of September, A. D. 1879, to answer to matters and things which should then and there be objected to him in that behalf, and the said Patrick Malloy, alias, etc., etc., having neglected and refused to find sureties for his appearance as aforesaid,</p> <p>Therefore, By the authority, etc., you are hereby commanded to take the body of the said Patrick Malloy, etc., etc., and him commit to the keeper of the jail in St. Johnsbury in the County of Caledonia, within the who is hereby commanded to receive the said Patrick Malloy, etc., alias, etc., and him safely keep so that he be had to appear before the said County Court to he holden at Guildhall aforesaid, on the third Tuesday of September aforesaid, or until he find good and sufficient sureties for his appearance as aforesaid, or be otherwise discharged according to law.</p> <p>The respondent’s counsel excepted to several rulings of the court below ; but the other questions are sufficiently stated in the opinion.</p> <p>It was error to admit the original files. 13 Vt. 9; 18 Vt. 594; Green. Ev. 1, s. 513. Lawful confinement cannot be shown by the mittimus. Russ, on Cr. p. 17, 378 ; Arch. Cr. PL 18th Ed. 835 ; 2 Bish. Cr. L. s. 889 ; 32 Vt. 427; Roscoe’s Cr. Ev. s. 865. It was error to admit the original mittimus, instead of the copy left with the jailer, 14 Vt. 311; 34 Vt. 97 ; Gen. St. p. 298, s. 62; 47 Vt. 95. The mittimus does not show a lawful commitment in the jail at St. Johnsbury. It was not for the justice to determine where he should be confined. G. S. p. 298, s. 59, 60 ; 45 Vt. 386 ; 2 Pick. 445 ; 18 Vt. 458 ; 25 Vt. 93 ; 5 Allen. 130.</p> <p>The mittimus was prima fade proof that the commitment was lawful. Arch. Cr. & PL vol. 2, p. Ill; 17 Vt. 577. The mittimus not being a part of the record, the original may be produced in court. Green. Ev.-vol. 1, s. 513. The evidence of loss of the copy left with the jailer was sufficient to let in proof of the contents. 6 Vt. 395; 33 Vt. 219.</p>

Trial by jury, March Term, 1880, Essex County, Ross, J., presiding. Yerdict for the plaintiff to recover the sum of $165.08 ; but the court being in doubt as to the effect of the discharge in bankruptcy, pro forma, rendered a judgment for the defendant. Action, trover for the conversion of twenty-nine sheep and eighteen lambs.

Action, trespass, quare clausum; pleas, general issue, with sundry special pleas in bar, which were traversed. Jury trial, December Term, 1880, Windham County, Yeazey, J., presiding; and verdict for defendant.

Indictment for the murder of Alice Meaker, charging Emeline L. Meaker and her son, Lewis Almon Meaker, jointly with the murder. Both pleaded, not guilty; trial by jury. September Term, 1880, Washington County, Redfield, J.. presiding. Before the empanelling of the jury, the said Emeline- L., moved for a separate trial; but this motion was overruled by the court.

Indictment for perjury. Trial by jury ; plea, not guilty; verdict guilty; at tbe June Term, 1881, Caledonia County, Ross, J., presiding. It was claimed that the respondent committed perjury at a justice trial, in which one Chase .and wife were plaintiffs, and he defendant.

Heard at the June Term, 1881, Caledonia County, Ross, J., presiding. Action, trespass de bonis, and trover joined ; referred, and heard on the report of referee. Judgment, pro forma, for the plaintiff to recover 191.52.

Appeal, from the Probate Court for the District of Lamoille, as to the amount due from the defendant, as former guardian of the said P. E. and G. B. Eoss. The Probate Court found due the sum of $8081.31; and the County Court, April Term, 1881, Powers', J., presiding, affirmed pro forma, the decree of that court.

Trial by jury at the December Term, 1880, Caledonia County, Ross, J., presiding. Verdict, for the plaintiff. The only questions raised in the court below were as to the admission of certain evidence which was received, and excepted to by the defendant, and these are sufficiently stated in the opinion. cited 8 Wall. 397 ; 66 Me. 523 ; 7 Cush. 586 ; 11 N. Y. 416 ; 13 Ired. L. 485 ; 42111. 438 ; 32 Vt. 591; 45 Vt. '275; 48 Vt. 335; 2 Head. 449. cited Green.

<p>[In Chancery.]</p> <p> Consideration, part Legal, part Illegal. Mortgage. </p> <p>Notes were given, secured by mortgage, the consideration being the good will, fixtures and stock of a business, the two latter specified in inventories upon which each article with its price was separately carried out. A part of the stock sold and specified in the inventory was lager beer, cider, ale, porter and alcohol. On petition to foreclose by an assignee for value and without notice of the notes and mortgage. Held,</p> <p>1. That the sale of the cider was legal, because not made in a “place of public resort ” within the meaning of the statute ; and that whether it is such place is a question of fact to be found by the court below, upon the evidence.</p> <p>2. That the sale of the.lager beer was legal, because made before the statute of 1878 prohibiting it was passed, the master finding from the evidence that it was not intoxicating.</p> <p>3. That the sale of the ale, porter and alcohol though damaged and unsalable, was illegal.</p> <p>4. That, the articles illegally sold and their value being certainly ascertainable, the contract is divisible, and mortgage may be foreclosed for the amount of the legal sales.</p> <p>5. R. L. s. 3800 — sale of cider — construed.</p>

Action, for injury to the plaintiff by reason of an alleged insufficiency in a highway which the defendant was bound to keep in repair. Plea, the general issue. Trial by jury ; verdict for the plaintiff, March term, 1880, Windham County, Veazey, J., presiding.

Petition. Heard by the court, March Term, 1881, Washington County, Taet, J., presiding.

Heard at the December Term, 1878, Caledonia County, Ross, J., presiding, on demurrer to the indictment. On the hearing the court caused the indictment to be amended by inserting the following words: “ the same not being necessary to preserve the life of the hereinafter named Lizzie S.”; and then overruled the demurrer and adjudged the indictment sufficient.

Heard by the court, September Term, 1880, Rutland County, Ross, J., presiding. Action, assumpsit on a note, with the common counts added ; plea and replication. Both cases were substantially alike. The court rendered judgment for the plaintiff on the following facts : One Healey was the real owner of the note. $95 Sharon, Yt., Jan. 29th, 1877.

Trial by jury, June Term, 1881, Caledonia County, Ross, J., presiding. Action, assumpsit; plea, general issue ; verdict ordered for the defendant. The facts as to the principal question discussed by the court are sufficiently stated in the opinion.

<p> Distribution of Insolvent Estate. Probate Court. </p> <p>When a note is allowed hy the commissioners against the insolvent estate of a deceased surety, and afterwards a dividend is paid on the note hy the trustees of the insolvent principals, who have assigned, in the final distribution of such surety’s estate by the Probate Court, the owner of the note is entitled to a dividend only on the balance, and not on the amount so allowed.</p>

<p>Both cases were heard on the report of a special master at the March Term, 1881, Washington County; Ross, Chancellor in one case, and Taft, Chancellor, in the other. The report of the master was sustained, and the receivers ordered to pay the amount found by him.</p> <p>ABSTRACT OP PETITIONS.</p> <p>The petition in each case sets forth substantially the same facts, to wit, that there was a contract between the Central Vermont Railroad Company and the receivers of the Montpelier & Wells River Railroad Company, by which the Central Vermont Railroad Company ran its trains over that portion of the track of the M. & W. R. R. R. Co., lying between the Central Vermont depot in Montpelier and Barre Junction, so called, a distance of about two miles; that the C. V. R. R. Co. had been in the daily use of said track for along time previous to the 26th day of September, 1876 ; and that said contract was in full force on said day ; that at Bai're Junction there was a switch under the exclusive control of the receivers for the purpose of letting the C. V. R. R. train off and on to the M. & W. R. R. R. track from the M. & White R. R. R. track; that solely by the negligence of the switchman at Barre Junction on the 26th day of September, A. D. 1876, the train of the C. V. R. R. Co. was let on to the track of the M. & W. R. R. R. Co., at Barre Junction, at an improper time, and said train was signaled that the track was clear, and that it had the light to proceed in the usual way to Montpelier over that portion of the track of the M. & W. R. R. R.; that it did proceed and before reaching Montpelier it collided with a train on the M. & W. R. R. R.; that the petitioner, B. E. Merrill, was engineer on the Central Vermont train and lost a leg in consequence of the collision ; and that the engine and car of the O. V. R. R. Co. was damaged.</p> <p>The petitioner, B. E. Merrill, asked the court to order the receivers to pay him the damages sustained by said collision; and the C. V. R. R. Co. asked to have the receivers pay them the damages to their train occasioned by said collision.</p> <p>The receivers alleged in their answer that the C. V. R. R. was, on the 26th day of September, 1876, engaged in running trains over that portion of the M. & W. R. R. R. track between Montpelier and Barre Junction by~ their license, but subject to the rules and regulations of the M. & W. R. R. R., upon terms mutually agreed upon between them; that the petitioner, B. E. Merrill, and the others in charge of the train which collided with the train on the M. & W. R. R. R. Co. were not running their train according to the rules and regulations of the M. & W. R. R. R. Co. in force at that time, and that the collision was caused in whole or in part by their fault and negligence. The receivers also objected to the reference to a master until the facts were established by the court upon which their liability was founded.</p> <p>The court referred both petitions to the same master, and the hearing on both petitions was had at the same time; the master was ordered to return all the testimony to the court. He found, among other things, as follows : . . .</p> <p>And the said Central Vermont Company in operating said Barre road as aforesaid was, under contract with the said M. & W. R. R. R. Go., and the said receivers, making use of and running its trains over that section of the M. & W. R. R. R. between said Coffee House, or a point close by known as Barre Junction, and Montpelier village, being about two miles, upon terms agreed upon between said O. V. R. R. Co., and the said receivers, and said M. & W. R. R. R. Co. . . That at said Barre Junction there was a switch, designed to let the trains running on said Barre road on to and off from the M. & W. R. R. R. section, so used by said Cen. Vt. Co., and also a signal or target was placed at said switch, both of which were erected and owned by and were at all times under the exclusive control of the said M. & W. R. R. R. Co. and said receivers to tend and keep in repair; and the master finds that under the above named contract it was the duty of said receivers and said M. & W. R. R. R. Co. and those operating' said road to furnish at all times, at their sole expense, a switchman to tend said switch and signal and have the same in proper position at all times, and to show accurately, according to the rules regarding said switch and signal, when it was proper for said Barre trains to proceed upon or off from said section of said M. & W. R. R. R.</p> <p>The signal or target placed at said Barre Junction, for day signal, consisted of a post set in the ground with an arm extending from near the top of the post which was so arranged as to be raised to a perpendicular position or let down to a horizontal position as the case required; and this signal was so placed that it could be seen by the train men of both roads from either direction at a considerable distance before reaching said Barre Junction, and in season to enable the engineers to control their trains according to the signal. And the signal for day on the said 26th day of September, and which was understood by the conductors, engineers and train men of both roads was, that when the arm was horizontal in position it indicated to the Barre road engineer and conductor that no trains were in the way on said section of the M. & W. R. R. R., and that said switch was properly placed for the Barre train to proceed on to the said section of said M. & W. R. R. If the arm was down at perpendicular it indicated that the Barre train had not clear road over this section and must wait at said Junction.....</p> <p>That at this time and before and after, the tender of said switch and signal was a Mr. Kempton, in the employ for that purpose of said M. & W. R. R. R. Co. and said receivers, living near by said switch, but from time to time during the summer and spring previous to said 25th September the said switch and signal had been tended by a young lad then living with said Kempton ; and the master finds from the evidence that the fact that said lad was tending said switch and signal had long been observed by Mr. Stowell (who was then acting superintendent of said M. & W. R. R. R. during all the time in question, and had in that capacity the hiring of all the employes on said road) without objection, and with his acquiescence. That said Stowell was informed long before of the desire of Mr. Kempton to place said boy, Goodno, in charge of said switch and signal, but did not direetly consent nor object, but Mr. Kempton supposed he had liberty and leave from Mr. Stowell to employ said boy in that service.</p> <p>That on the occasion in question said boy, Goodno, was at said switch when said Barre train approached, and was in sole charge of said switch and signals.</p> <p>In the course of trains on the M. & W. R. R. R., there was a mixed train destined for Wells River, to start by the time table of that road from its depot at Montpelier at 5:7 P. m., but on a difference of chronometer time of the two roads of 4 minutes on which their respective time tables were calculated, ample time was given said M. & W. R. train to pass Barre Junction some minutes before the Barre train on its time could arrive at Barre Junction.</p> <p>On the occasion in question it was observed by the engineer, fireman and conductor of said Barre train a considerable distance before reaching said junction that the arm of said signal was in the right position and that said switch was also set right for said Barre train to proceed on the said M. & W. R. R. R., and so the engineer of safd Barre train did not stop but proceeded on his way over said switch.....</p> <p>The master finds that the petitioner and his train men did all that it was possible to do, and used all proper diligence to stop said train and prevent said collision ; that the petitioner was in the exercise of due and proper care and prudence in running his said engine ; that he and his said train men were guilty of no negligence or imprudence either in running said train, in passing said switch, or in their attempt to stop said train to prevent said collision, and that said collision was in no way contributed to by any negligence or want of care or diligence of the petitioner or any of the men in charge of said train. . . . '. .</p> <p>On the whole evidence submitted the master finds that the M. & W. R. R. R. Co. and said receivers and those having charge of the same were guilty of negligence, want of care and diligence and neglect of duty in the management of their said road and said switch and signal, and that the said accident and, injury to said petitioners were wholly due to and occasioned by their said negligence and want of care' and diligence and neglect of duty as charged in said petition.</p> <p>The master finds that the said petitioner has thereby suffered damage to the amount of five thousand dollars, and he therefore finds and awards that the said petitioner recover of the said defendants the sum of five thousand dollars and his costs. ■</p> <p>The defendants made many requests to the master; also, a motion to recommit the report; also, a motion to set it aside ; but these are immaterial in view of the opinion of the court. The other facts are sufficiently stated in the opinion.</p> <p>It is conceded that the court should find the facts upon which the right of recovery is based ; but the petitioners claim that the court can call to its aid a master, whose report is as final as the verdict of a jury, or the report of an' auditor. This the defendants do not concede. It was not until Statute 21 and 22, Vic. C. 27, that a Court of Chancery in England could assess damages ; their former practice as well as ours, was to send it to a jury, (33d Vt. 538) or for the court to try it. An accounting is properly sent to a master, but other facts are either to be tried by the court or sent to a jury. If sent to a master, the testimony must be reported, and,the whole is subject to the revision of the court. Herrick v. Belnap’s Hst. $ Vt. C. H. H. Co., 27 Vt. 673. Although this has been changed by statute, (G. S. c. 29, s. 11,) so far as taking accounts are concerned, the statute does not apply to the question of damages. The conductor and engineer of the Barre train did not stop before crossing on to tbe M. & W. R. 'R. R. track, and whistle, as required by the statute. See Session Laws of 1872, No. 33, p. 73. It may be claimed that the law was not meant to apply to a case like the present, but we fail to see why the danger is not as great, or even greater, than when one road crosses another at right angles. The petitioners found their claim on the case of Sawyer v. B. $ B. É. B. Co., 27 Vt. 370, and cases there cited. The language used by the court in this case is open to criticism, and is in direct conflict with the case of March v. Concord Railroad, 9'Poster, 29 N. H., and the reasoning therein. We submit that the foregoing is not law. Railroads lease their roads to other corporations to run, and to hold that the lessor, without any contract for that purpose, is legally bound to keep their track in repair, for the other one is absurd. The fact that the contract usually provides' for the repairs does not help the question — the lessor is not bound to repair unless he agrees to. There is no pretence that the receivers agreed to keep the road in ‘repair, or assume any risks of accident; the case simply shows that they gave a license, on certain terms, for the Barre train to run over the road ; no claim that they assumed any risk, or were paid for assuming any risks ; and we say as between these two roads, each road must bear its own loss, in the absence of any agreement upon this subject. The learned counsel for the plaintiff cite the following cases to support their doctrine : Nelson v. Vt. Ca. R. R. Co., 26 Yt. 717 ; Mayor £c. of Lyme Regis v. Henly, 1 Bing. N. 0. 222 ; 27 E. C. L., 614; Phil. £ Reading R. Co. v. Derby, 14 How. 468 ; Northern Railway Co. v. Harrison, 26 Eng. L. & E.q 444; Thomas v. Winchester, 2 Seld. 398; Collet v. Loud N. W. R. R. Co., 6 Eng. L. & E. 305 ; Longmead §■ Wife v. Holleday, 6 Eng. L. & Eq. 462 ; Curnb. Valley R. R. Co. v. Hughes, 11 Penn. 141. A critical examination of these cases shows in every one of them that the action was well founded as for the neglectvof the defendants for the disregard of some public statute, or from privity of contract, as that of a common carrier.</p> <p>The report of a master will not be set aside except for wilful misconduct or gross mistake. 43 Yt. 460 ; 50 Yt. 52; 31 Yt. 186. On the facts reported the petitioners are clearly entitled to recover. 27 Yt. 370. The report is fully sustained by the evidence. The proceeding by petition was the appropriate remedy. Peck v. Crane, 25 Yt. 146; 46 Yt. 792; Wiswell v. Sampson, 14 How. 52.</p> <p>The master finds his powers in the order of reference, and should report facts and not evidence, unless required by the order. 15 Vt. 196-7 ; 2 Daniell Ch. P. p. 1298-9 to 1800 and note ; R. L. s. 701.</p>

<p>[In Chancery.]</p> <p> Insurance. Mortgage. Notice. Delay. </p> <p>1. Under a policy of insurance requiring notice to be given to the company of a mortgaging of the property, &e., a delay in giving such notice for fifty days is unreasonable ; and voids the policy.</p> <p>2. In such a case, if the mortgage covers only realty, but the policy, both real and personal property, it is wholly void, unless the contract is divisible ; the different properties, insured for separate sums ; and the risk upon the property, which is claimed to be valid, unaffected by the cause that renders the policy void in part.</p> <p>3. Stated, when the rule, “ void in part void in toto,” applies to insurance contracts.</p>

<p>Trial by jury, December Term, 1879, Caledonia County, Ross, J., presiding. Trover for a horse ; plea, general issue and special matters in defence. It appeared that one Eastman had owned, and gave a bill of sale of the horse in question to the plaintiff to secure a note for the sum of $75, on the 15th day of February, 1877 ; that the horse remained in said Eastman’s possession ; that in the bill of sale he described the horse as being “ kept for team work, and exempt from attachment ” ; that the defendant caused the horse to be attached on the 25th day of June, 1877, and to be sold on execution issued the 4th day of January, 1878. At the time of the execution of the bill of sale, and until the 3d day of September, 1877, Eastman had another horse, of greater value? which he kept and used for team work. Eastman never claimed to the defendant that the horse in suit was exempt from attachment, nor has he ever made any such claim except as appears in said bill of sale, and of that the defendant had no knowledge until after said attachment was made.</p> <p>The defendant offered evidence to show that the plaintiff, on or about the 25th day-of August, 1877, went to Eastman and asked him what he was going to do about the horse in suit; that Eastman offered to turn out his other horse to plaintiff at what it was worth, and settle the $75 note, but that he would not let him have it for any other purpose ; that plaintiff did take it on a writ of attachment founded on some other demand ; that, it being Eastman’s only horse or team at that time, plaintiff could only take it in satisfaction of his claim on the horse in suit; which evidence the court held inadmissible, and defendant excepted.</p> <p>The court ruled as a matter of law that the above- state of facts entitled the plaintiff to a judgment, and under the direction of the court the jury returned a verdict for the plaintiff for the sum of the $75.</p> <p>The statutes and decisions clearly show that the selection of which horse is to be exempt, is to be made at the time of the attachment., or within a reasonable time thereafter, by the debtor. Sumner v. Brown, 34 Yt. 195 ; Haskins v. Bennett, 41 Vt. 698 ; 44 Yt. 508.</p> <p>The horse must, as a matter of law, have been absolutely exempt from attachment at the time of executing the bill of sale, in order to give plaintiff title under the bill; and it is only in cases where the property is exempt by force of the statute, without selection, that it has been held to pass title as against a subsequent attaching creditor. Jewett v. Gruyer et al. 38 Yt. 209 ; Wilkinson v. Wait, 44 Yt. 508; Plimpton v. Sprague, 47 Vt. 467 ; 11 Vt. 595 ; 2 Allen, Mass. 219 ; 44 N. H. 16 ; 14 Pa. St. 263.</p> <p>If the words, “ The one I keep and use for team work, and the one I claim as exempt from attachment,” in the bill of sale, gave plaintiff title to the horse as against attaching creditors, so that he could with impunity leave it in the possession of Eastman, then as a matter of fact, at the time of defendant’s attachment, Eastman had only one horse, and that the one he had at home, with only an interest in the one in suit — or in other words, Bast-man owned the one he had at home, and plaintiff owned the one attached by defendant, and defendant could not have held either one if he had attached both. Wilkinson v. Wait, supra.</p> <p>Eastman exercised this right to select to the extent of his ability by the conditional sale to the plaintiff to secure the seventy-five dollar note, therein describing the horse as “ kept for team work and exempt from attachment.”</p> <p>There was no necessity for a change of possession of the horse. Neither the Vermont rule requiring such change, nor the reason for such rule calls for it. No false credit would be given or enjoyed by such possession. Foster v. McGregor et al., 11 Vt. 595 ; Thompson’s Homestead and Exemption Laws, s. 738 et seq.</p> <p>Everybody would be presumed to know that one such horse would be exempt from attachment, and we contend that, having enjoyed the benefit of the selection of one horse to be exempt, he thereby exhausted his right in that regard, and could make no such claim to any other horse or horses that might be attached, so that all others belonging to him found in his possession would be attachable.</p> <p>This case apparently involves the same doctrine that was settled in the case of Jewett v. Guyer et al., 38 Vt. 209.</p>

Action, special assumpsit upon an insurance policy ; plea, general issue. Trial by jury, and verdict for the plaintiff, September Term, 1880, Rutland County, Ross, J., presiding.

Action, case for an alleged false warranty and deceit in the sale of hops. Plea, general issue; trial by jury, April Term, 1881, Lamoille County, Powers, J., presiding, and verdict for the plaintiff. The hops were purchased by one John Bacon, as agent for the plaintiff, on the 20th day of October, 1879, and delivered on the 4th day of November following.

<p>Heard by the court at the September Term, 1880, Washington County, Redpield, J., presiding. Action, assumpsit upon a note. The court found that H. C. & E. 0. Leonard were partners when the note was given, and had been for several years; that the style of their firm name, as used by them, was sometimes “ Leonard Brothers,” and sometimes, “ H. 0. & E. 0. Leonard ”; that E. 0. Leonard executed the note; that he did most of the partnership business in settling with the shop and storekeepers at Barre, where they resided ; that he gave receipts and notes in the name of H. 0. & E. 0. Leonard; that the note was given to W. A. Boyce and sold by him to the plaintiff. It was proved by the testimony of H. 0. Leonard that said partners had a mutual understanding that all notes signed for the firm should be signed by the individual partners and not by the firm name; but this was not known to the public, and the public was permitted to deal with them, and all their transactions were conducted ostensibly as each having powers and rights such as ordinarily pertain to such partnerships. The other facts found are sufficiently stated in the opinion.</p> <p>cited Morrison v. Moore, 4 Yt. 271; Meld, Admr. v. Randall cf* Durant, 51 Yt. 36 ; 32 N. H. 238; Gollins v. Adams, 53 Yt. 433, and cases cited ; 21 Barb. 262; 20 Miss. 625.</p> <p>cited Barrett v. Flint, 45 Yt. 43 ; Reiley v. Taylor, 13 East, 175 : On question of payment: 2 D. Chip. 36; 1 Aik. 31; 15 Yt. 393 ; 42 Yt. 27.</p>

<p>Statute of Frauds. Sale of property worth $40 or more in possession of Third Party.</p> <p>1. To make a valid sale of property, worth $40 or more, in the possession of a third party, there being nothing in the transaction but a verbal contract, such third party must agree to hold the property as the agent or bailee of the buyer.</p> <p>2. Statute of Frauds, — Sale o£ property in possession of third party, — coustrued.</p>

Heard on bill, answer, replication and testimony, at the March Term, 1881, Washington County.

Trial by jury, December Term, 1880, Orange County, Powers, J., presiding; and verdict for the plaintiff. Action on the case for an injury to the female plaintiff caused by the alleged insufficiency in the highway: .

<p> Usury. Pleading. Demurrer. Discharge under seal. </p> <p>The plaintiff brought his action for usury. The defendant pleaded a discharge, under seal, dated long after the loan; and the plaintiff demurred to the plea. Meld, that the plea was sufficient; and that the discharge, under seal, imported a consideration. The plaintiff was allowed to replead.</p>

<p>Heard by the court at the March Term, 1881, Washington County, Redfield, J., presiding. Judgment for the plaintiff to recover balance on an execution. Action, debt on judgment. The case is stated in the opinion.</p> <p>The law is well established in England that an attorney can bind his client by compromise. .The rule in this country was stated early by Ch. J. Marshall, in 7 Cranch, 436: Although an attorney-at-law, merely as such, has, strictly speaking, no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case. 14 Iowa, 286 ; 20 Me. 183 ; Jenney et al. v. Belesdernier, 6 Mod. 82; Lamb v. Williams, 1 N. J. L. 214; Wycoff v. Ber gen, 16 Mass. 396. In Clark v. Randall, 9 Wis. 135, it is held that an attorney for a foreign client, or one residing at a distance, intrusted with the collection of a debt, has an implied authority to indemnify the officer in making a levy, and if acting in good faith he suffers thereby, he has a good cause of action against his client for his own indemnification.</p> <p>It is well settled that an attorney by virtue of his general authority to conduct a suit cannot bind his client by compromise. He cannot assign nor discharge without full satisfaction. 5 Vt. 352 • 10 lb. 471; 2 lb. 127 ; 15 lb. 314; Paley Agency, 221 ; 39 Md. 485 ; 1 Pick. 347.</p>

Heard on demurrer to the declaration at the March Term, 1881, Washington County, Taft, J., presiding. The court sustained the demurrer. Action, general and special assumpsit. DECLARATION.

Heard at the December Term, 1879, Bennington County, on the pleadings and an agreed statement. Donton, Chancellor, ordered, pro forma, that the bill be dismissed.

Audita Querela, to set aside a judgment rendered by a justice of the peace against the plaintiff in this case. Trial by court, December Term, 1880, Lamoille County, Powers, J., presiding. A judgment was rendered for the defendant, the court holding that the guardian had so far submitted to the jurisdiction of the justice, and had so far participated in the justice trial, resulting in the judgment complained of, that he was not entitled to relief.

Action, special assumpsit upon a policy of insurance. Trial by jury, March Term, 1880, Essex County, Ross, J., presiding. Pleas, general issue and Statute of Limitations. Yerdict for the plaintiff; but the court rendered judgment for the defendant. The case is stated in the opinion.

Trial by jury, December Term, 1880, Caledonia County, Ross, J., presiding ; and verdict for the plaintiff. This was an action of trespass and case for obstructing plaintiff’s right of way across defendant’s door-yard to and from plaintiff’s carding-mill and shingle-mill, and for obstructing plaintiff’s right to pile wood and timber in defendant’s door-yard, near his said shingle-mill, and for removing plaintiff’s wood from said land.

Trial by jury, September Term, 1879, Washington County, Redfield, J., presiding; and verdict for the plaintiff. Action, assumpsit on a note. The case is stated in the opinion. The court below erred in excluding the evidence offered to show a part payment. Such evidence was admissible, not as a defence, but in reduction of damages. Ferris v. Mosher, 27 Vt. 218 ; 1 Chitty on PI. 477-80; 2 Greenl. on Ev. ss. 135 & 516.

Heard at the March Term, 1881, Washington County, Redfield, J., presiding, on demurrer to the defendant’s plea in bar. The court sustained the plea. The case is stated in the opinion. Probate Courts have the exclusive jurisdiction of matters within their cognizance. Adams v. Adams, 22 Yt. 50; 38 lb. 638; 52 lb. 29. The Probate Court first took jurisdiction, and never relinquished it.

Heard on bill, answer, traverse and master’s report, at the June Term, 1881, Caledonia County. Ross, Chancellor, decreed that there was due from the orator on the first mortgage, $4,972.88. The defendants appealed. The master found substantially as follows: In the fall of 1870, said A. H. Ricker was greatly embarrassed in his financial affairs. He was then administrator of his father’s estate, and that estate was required to be settled and liabilities paid off.

Trial by jury, September Term, 1880, Washington County, Redfield, J. presiding. Action, trover ; plea, the general issue, with notice that the defendant would justify the conversion as collector, &c. The court, pro forma, ordered a verdict for the plaintiff; and rendered judgment on the verdict. The case is stated in the opinion.

Heard at the June Term, 1881, Caledonia County, Church, Assistant Judge, presiding. Petition for the appoiutment of commissioners to appraise the damages caused by the alteration of a highway. Petition dismissed. The facts are sufficiently stated in the opinion, except the following : Penniman is the owner of a house and lot on the east side of Main street, in the incorporated village of St. Johnsbury.

Heard by tlie court at the December Term, 1880, Orange County, Powers, J., presiding. Action, trespass; pleas and notice of justification, setting out that the defendant was constable and collector of the town of Bradford, and that the defendant took the carriage in question by virtue of a tax warrant. Judgment was rendered for the defendant. The case is stated in the opinion. By the act of 1872, No. 58, p. 95, the oath of the listers should have been recorded.

The Probate Court ordered and decreed that this residue, $1,600, be paid to the defendant. Heard at the' September Term, 1880, Windham County, Veazet, J., presiding. Trial by court; and the decree of the Probate Court was affirmed. The said Lucretia’s will was duly proved; and her estate distributed except this amount. The plaintiffs are her heirs-at-law ; and the defendant was her husband. The defendant and testatrix were married August 13, 1869.

Petition to the Supreme Court. The case is stated iu the opinion. When the suggestion of bankruptcy was made the power of the counsel ceased. Knapp v. Fisher, 49 Vt. 95. The County Court should have rendered a judgment in rem, only against the property attached. This court has the power to correct the wrong.

Trial by jury, Septemher Term, 1880, Washington County, Redfield, J., presiding. Action, general and special assumpsit, on promissory note. Plea, general issue and notice ; and verdict and judgment for the plaintiff. The note was given to the plaintiff and signed by E. 0. Leonard, C. 0. Leonard, J. S. Collins, H. C. Leonard and N. E. Averill, “ surety.” Suit was brought against Averill alone.

Case heard at the September Term, 1881, Veazey, J., presiding, on the report of a referee. The court rendered judgment, pro forma, for the plaintiff to recover $974.96. The referee found, among other things : . . . .

' Action, case for injury on tbe highway. Plea, general issue. Trial by jury, September Term, 1881, Veazey, J., presiding. Verdict and judgment for the plaintiff.

Petition to vacate a levy of an execution on real estate brought to the Supreme Court, January Term, 1882. The case is stated in the opinion. If the return fails to show that the justice who appoints one or more of the appraisers, could by law judge between the parties in civil causes, the levy is void. Dodge v. Prince, 4 Yt. 191.

Heard on the report of a referee, at the September Term,1880, Veazey, J., presiding. Action, trover ; plea, general issue, and justification. The court rendered judgment for the plaintiff, on the report. The case appears in the opinion. If the title passed to Fish, then was there a sufficient change of possession to defeat attachments of creditors ? We claim there was no sufficient change of possession as shown by the referee’s report.

<p> Highway. Notice. Evidence. </p> <p>1. In giving notice of an injury received on a highway fractions of a day aré disregarded.</p> <p>2. The defendant claimed that it was a sudden and unforeseen defect in the highway. Held,that the plaintiff was properly allowed to show how the defect was produced; that it existed at other winters prior to the injury; how the repairs could have been made, and the expense of making them; and in this case, the condition of the road since the accident.</p> <p>3. Charge of the court, as to the duty of the plaintiff in travelling upon the highway and the effect of his negligence, sustained.</p>

<p>Action, assumpsit on a policy of insurance. Heard on the report of referees, at the September Term, 1881, Yeazey, J., presiding. Judgment was rendered on the report for the plaintiff to recover $1,368 ; and the defendant excepted. The referees found:</p> <p>The policy was issued to Michael Walsh, and the application therefor was signed by him, but, except the signature was mostly in the handwriting of John Cain, who was then an agent of the defendant company in soliciting insurance. The plaintiff put in evidence a proof of loss signed by Mary Walsh, the wife of said Michael, and the same was received under objection and exception of the defendant, and was made under circumstances as follows: The said Michael and Mary were married in 1857, and occupied said house as a homestead at the time of the fire, but said Michael was in the habit of going away from home to be gone several months at a time, and at one time was gone two years ; and in his absence the said Mary had charge of matters at home, and acted as his agent in the management of the premises and in the general transaction of business about home. At the time of the fire said Michael had gone to Colorado, and had been gone for some time, and it was not then known by his family where he then was, the facts in this respect being as stated in said proof of loss, and on this account his wife, the said Mary, made, by the assistance of her attorney, W. H.. Smith, Esq., and signed and made oath to, said proof of loss, and the same was forwarded by said Smith with a letter of transmittal by him to the company on the 15th day of May, 1879, and it was received in due course. Notice of the loss had been previously given. In making and signing said proof, the said Mary assumed to act as the agent of her husband, and claims, as matter of law, under the facts and circumstances aforesaid, to have acted .in this behalf within the scope of her authority as the agent of her husband. Said Michael died before returning home, but after the fire, and said Mary was appointed administratrix of his estate, and as such brought this suit.</p> <p>The company through its agent and president investigated as to the cause of the fire, the amount and value of the property destroyed by it, the title to the property, and declined to pay the loss; but did not notify the plaintiff of any objection to the form and sufficiency of the proof of loss until it was made on the trial.</p> <p>(The report at this point finds that the defendant paid the plaintiff for a former loss by fire, where the proof was made by the said Mary as in this case in the absence of her husband.) The referees further found:</p> <p>That said Cain was the- agent of the defendant company in soliciting said insurance and taking the application therefor; that thereafter said Michael built the house in question on the site of the former one, and obtained the policy of insurance thereon in this suit through said Cain as agent as aforesaid ; that Cain examined the house inside and outside two or three times before taking the application, and talked with Michael about the cost of the house, and drew up the application for him ; that said^ Cain had been a practical house carpenter and was a competent judge of the cost and value of such a house ; that said Michael told said Cain that he had put into said house some $1,700 or $1,800, including his own labor, and Cain decided that the amount of insurance should be $1,200, being, as he then said, two-thirds the value.</p> <p>The foregoing was the substance and result of the testimouy on this point; and we find there was an over insurance on the house, and that said Michael and said Cain are both responsible for it. The expense of building was considerably greater in 1876, when this house was built than at the time of the loss in 1879, or at the date of the policy in 1878 ; but not enough to make up the difference between the value of the house in 1878 or 1879, and the amount represented by Michael to have been the cost in 1876. Both Michael and Cain are dead ; and there was no evidence as to what took place .between them when the application for insurance was taken, except the testimony of the plaintiff and the said application and policy. Upon this evidence we do not feel warranted in finding, as claimed by the defendant, that Michael falsely represented knowingly and purposely the cost of the house ; but we find that the represented cost was more than it ought to have been by several hundred dollars; and that Cain ought to have known it.</p> <p>The plaintiff claimed that the fact that Cain decided upon $1,200 as the proper amount of insurance to put upon the house under the two-thirds value rule of the company, he being a practical mechanic and competent judge, was evidence tending to show its actual value at the time of the insurance. Also that the company is concluded by that estimate of its agent. The last point is a question of law which we submit to the court. The first point becomes immaterial as we find the actual value of the house to have been $900, as before stated, giving all the weight, to which it is entitled, to this testimony as claimed.</p> <p>We further find that November 11, 1863, the said Michael executed a deed of said premises in trust to R. Proctor, and this deed was put upon record on the same day, and the record title has remained in said Proctor ever since. This deed covered both the land and the personal property on the premises. We find upon evidence objected to by the defendant and taken subject to its exception, the following facts in regard to said conveyance : At the time said deed was executed said Michael and Mary were living in the house then standing on said premises, and were occupying the same as their homestead. They then had one child and have since had five others, and all are now living. Said Michael was in difficulty at the time and was in jail. An arrangement was made by which said deed was executed to said Proctor who had previously known the parties. Soon after this Michael went into the army, where he remained some time. During his absence said Mary and the family continued to occupy the premises, and also after his return, and he with them except when absent from home, ás heretofore stated, until the time of the fire; and since his decease said Mary has occupied said premises with her children, being both his widow and administratrix. It was not proved that said deed was actually delivered to Proctor. He never acted under it, never took possession of the real or personal property mentioned therein, never was on the place. It was never listed to him for taxation, and he had forgotten the existence of any such instrument until it was brought to his attention by reference to said record after said fire. He now recalls that some arrangement was made in regard to said Michael’s property with a view to saving it to his wife and children ; and we find that he, Proctor, then consented to take the title for this purpose, but with no expectation of taking any charge or control of the property. It did not appear where the original deed is, if in existence. Said Proctor does not know of it among his- papers. It did not appear whether said Michael had forgotten about this deed or not when he made the application for insurance, or why he omitted to refer to it in his application. The real and personal property named in said deed has been treated by all parties ever since the execution thereof in precisely the same manner as before. The deed was executed for the purpose legally inferrible from the terms thereof in the light of the circumstances attending its execution as above stated.</p> <p>We further find that the existence of said deed to Proctor, first became known to the defendant soon after the loss now in question. We further find upon evidence which was received subject to the objection and exception of. the defendant, that subsequent to the loss in question, the plaintiff paid two assessments upon the premium note given when said policy was issued; one'of $6.88, paid March 10, 1880, to cover the period from August 1,1878, to August 1, 1879; and one of $4.73, paid October 11, 1880, to cover the period from August 1, 1879, to August 1, 1880. Soon after said last payment the defendant tendered back the amount received upon both assessments with interest, which tender was refused, but has been kept good. The company made said assessments and collected the same by mistake or through inadvertence, and as soon as the mistake was discovered the money was tendered back as above stated.</p> <p>The following is an extract from the affidavit of loss :</p> <p>“ That the said Michael, my said husband, has for many years been accustomed from time to time to leave home for some mining region and be absent for months without one of us hearing from him. That last year, about March 4,1878, he left for the West and has not been home since. That the last we heard from him he was in Golden City, in Colorado, in the early part of April, and wrote he was soon to leave that place for some other, which he did not name, and advised he would write home and let us know where he was before we need write him again. That immediately after our house burned we did write to him at Golden City aforesaid, where he was the last we heard from him, and have had no news from him since, and are wholly unable to state where he is or when I shall hear from him again, as he is not in the habit of writing often, sometimes not for months.</p> <p>That said insured property was not otherwise insured except in said policy, and my said husband was the owner of all said property. That as his wife and agent, I do all the business, carry on the farm, &c., in his absence.” •</p> <p>(Signed) “ Mary Walsh,” and sworn to by her.</p> <p>Extract from a letter of the president of the defendant:</p> <p>“ In case of Walsh, I do not find the title satisfactory, there is nothing in the papers, either in application or otherwise, to show the title, as the records do. Yours, &c.”</p> <p>Extract from defendant’s by-laws:</p> <p>All persons insured by this company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the company, and within thirty days after said loss to deliver in a particular account in detail of such loss or damage, signed with their own hands, and verified by their oath or affirmation, and also, if required, their books of account and other proper vouchers. They shall also declare on oath whether any and what other insurance has been made on the same property, and whether they were the owners of the property at the time of the loss. If there be any misrepresentation, fraud, or false swearing, the claimant shall forfeit all claim by virtue of his policy.</p> <p>The policy was void, because of a misrepresentation of the title. It was not for the defendant to prove a delivery of the' deed. 15 Wend. 545. It was not necessary to prove a delivery to Proctor. A delivery to one of the beneficiaries would have been enough.' 1 Johns. Ch. 240 ; 17 Johns. 577. The record of the deed is proof of delivery. 3 Ohio St. 377 ; 101 Mass. 188 ; 1 Best. Ev. s. 274; 1 Green. Ev. s. 79. The transaction, as set out by the referees, amounts in law to a delivery. 2 Washb. on Real Prop. p. 578; 5 B. & C. 671. Even without the finding that the trustee “ consented to take the title,” the deed would not have failed. His acceptance of the trust is to be presumed. 2 Washb. on Real Prop. 196. A trust never fails for want of a trustee. 2 Washb. on Real Prop. 198, ¶ 18 ; Porter v. Bank of Rutland, 19 Yt. 410 ; Montpelier v. Bast Montpelier, 29 Yt. 12 ; 4 Kent’s Com. 311 — note (e) ; Adams’ Eq. 318 ; 1 Perry on Trusts, 48 ; Hill on Trustees, 334.</p> <p>The value of the property was material. 6 Cush. 340 ; 3 Bennett’s Oases, 443 ; 46 Me. 394; 4 Bennett’s Cases, 443 ; 18 Md. 26 ; Bates’ Dig. 177, s. 25. The insured was responsible for the misrepresentations. How can it avail him, as against the company, that the agent for taking the application was also responsible ? That it cannot is plain upon common principle. And the authorities are so. Richardson v. Maine Ins. Co., 46 Me. 394; 4 Bennett’s Cases, 442-3; Ayeres v. Hartford F. Ins. Co., 17 Iowa, 176 ; 4 Bennett’s Cases, 776 ; American Ins Co. v. Grilbert, 27 Mich. 429 ; Lowell v. Middlesex Mut. F. Ins. Co., 8 Cush. 127. The representations being warranties, the agent’s knowledge is unavailing. Tebbetts v. Hamilton Mut. Ins. Co., 3 Allen, 569. Want of knowledge, or of recollection, no excuse. Towne v. Fitchburg Mut. F. Ins. Go., 7 Allen, 51; Wilbur v. Bowditch Mut. F. Ins. Co., 10 Cush. 446. Moreover, the insured was bound to know the scope .of the agency. White v. Langdon, 30 Vt. 599; Wood on .Eire Ins., p. 652, s. 397. And to prove it, Wood on Eire Ins., p. 649, s. 396; lb. p. 663, s. 399. Distinction between powers of general and special agents. Ib. p. 652, s. 397. What the agent had no power to determine or control, he could have no power to waive. The contrary is preposterous. Vosey. Fagle Life and Health Ins. Co., 6 Cush. 42, pp. 49-50 ; Jennings v. Chenango Co. Mut. Ins. Co., 2 Deni.o, 75 ; Tebbetts v. Hamilton Mut. Ins. Co., 3 Allen, 569; Wood on Ins. p. 636, s. 389, p. 646 ; lb. p. 646, ss. 392-3. Where charter provides that the directors shall act, even the president cannot waive conditions of the policy. Dawes v. The North River Ins Co., 7 Cow. 462; See 37 Me. 137 ; 4 Met. (Ky.) 9 ; 18 Wis. 387 ; 29 Iowa, 562 ; 4 Bennett’s Cases, 756; 3 Hill, 508; 51' Barb. 208; 43 N. Y. 289.</p> <p>The deed was inoperative for want of delivery. Mmore v. Marks, 39 Yt. 538; Wood’s Ins. 554; Grilbert v. N. Am. Ins. Co., 23 Wend. 43 ; Fisher v. Hall, 41 N. Y. 416. No real misrepresentation of the title, Hough v. Ins. Co., 29 Conn. 10 ; Curry v. Ins. Co., 10 Pick. 535 ; Allen v. Ins. Co., 5 Gray, 384-8-9.</p> <p>If the proofs are defective the defendants waived all objections and are estopped from contesting claim upon this ground. Wood, 715-716, notes and cases cited. Clark v. N. F. Mutual Ins. Co., 6 Cush. 342; Underhill v. Agawam Ins. Co., 6 Cush. 440 ; Blalcey. Mutual Ins. Co., 12 Gray, 265 ; Vos v. Robinson, 9 Johns. 196 ; Kernochan v. Ins. Co., 17 N. Y. 428-33 ; Taylor v. Ins. Co., 9 How. 390. An agent may well make proofs in such a case. Wood on Ins. 694 and notes. Pelkie v. Fmerson, 16 Yt. 653 ; Header v. Page, 39 Yt. 306 ; Church v. Langdon, 10 Wend. 79.</p> <p>Defendant received like proofs by this wife and made payments of the losses. Bigelow on Estoppel, 454.</p>

Heard on bill and answer, at the September Term, 1880. Veazey, Chancellor, dismissed the bill.

Heard by the court at the March Term, 1881, Veazey, J., presiding. It was a motion, under chapter 74, section 10, G. S. (R. L. s. 2407),.for an execution against a surety in bastardy proceedings ; and the court held that the complainant was entitled to an execution. Thomas Walsh was the principal, and William Walsh the surety, in the bastardy proceedings before the justice.

Ejectment. Trial by jury, September Term, 1881, Veazey, J., presiding. Verdict and judgment for the defendants. The exceptions showed that both parties claimed title from Robert R. Drake, father of the plaintiff; that the defendants’ deed was first executed, and the plaintiff’s first recorded ; and that the plaintiff testified that his father was his agent to do the business of making the deed and getting it recorded. The other facts are sufficiently stated in the opinion.

Heard on an agreed statement of facts, at tbe September Term, 1879, Dunton, J., presiding. The court decided that the trustees were chargeable. AGREED STATEMENT. The trustees are the executors of the estate of Sylvester F. Paige, deceased. The defendant is the son of said Sylvester F. (The provisions of the will are sufficiently stated in the opinion of the court.) The will has been duly proved.

Heard by the court, March Term, 1881, Veazey, J., presiding. Trover for the conversion of a colt, two years old. Judgment, for the defendent. The defendant was a sheriff, and took the colt on an execution against the plaintiff. The plaintiff had exchanged a horse that was exempt for the colt in question. The questions raised in the court below are stated in the opinion. cited 53 Yt. 302 ; 45 Yt. 40 ; 29 Yt. 289 ; 40 Yt. 641; R. L. s. 1076.

Heard by the court on an agreed statement, at the September Term, 1881, Yeazey, J., presiding. An action had been brought and judgment rendered against the plaintiff in this case for the costs in the suit in -which he had recognized; and this action is brought to recover what he has paid, as such surety on the writ, for the defendant. Judgment for the plaintiff. The facts are sufficiently stated in the opinion.

Heard on bill, answer, master’s report and exception thereto, at the December Term, 1881. Taft, Chancellor, ordered and decreed that the defendant, Elizabeth C. French, pay to the oratrix the sum found due by the master; viz., 1313.21, with interest, out of her separate estate, and that the property which was sequestered by order of the court be charged with the payment of this order.

Heard at the May Term, 1881, on the report of a referee, Taft, J., presiding. Action, debt to recover the penalty allowed for neglecting to give notice of impounding beasts. - The court rendered judgment for the plaintiff to recover $1.50, and his costs ; appealed by the plaintiff. The defendant impounded eighty of the plaintiff’s sheep, and-neglected for three days to give notice in accordance with the statute.

Debt on an official bond of a constable of the town of Weston. Demurrer to the declaration. Heard at the May Term, 1881, Taft, J., presiding. The court overruled the demurrer. It appeared that the constable, one Smith, was elected at the annual March meeting, 1877, but the bond, with defendants as sureties, was not given till the 19th day of the following June ; and that said Smith collected the taxes after the last date, and appropriated some part of them to his own use.

Information filed by the State’s attorney, charging the respondent with having filled up an ancient water-course, &g. Plea, not guilty; trial by jury, December Term, 1881, Taft, J., presiding ; and verdict, guilty.

Heard on special demurrer to the defendant’s special pleas in bar, May Term, 1880, Barrett, J., presiding. Pleas held sufficient.

<p>Petition under the Fraud, Accident and Mistake Statute. R. L. s. 1428. Trustee, when may Appeal.</p> <p>1. The ad damnum in a justice writ was $16.00 ; the defendant failed to appear and was defaulted ; the trustee appeared, and disclosed that he was not indebted to the principal defendant, and filed his specification, claiming in offset $82.85 ; the justice held the trustee for $17.81, and refused him an appeal. On a petition being brought to the County Court, under R. L. s. 1428, Held, that the trustee was entitled' to an appeal; that a trustee has the same right to an appeal that a party has ; and the amount of his own specification in offset, and not the ad damnum of the plaintiff’s writ, may govern his right of appeal.</p> <p>2. R. L. s. 1428 — fraud, accident, &c., construed.</p>

Replevin for sixty-two sheep and fifty-two fleeces of wool. Plea, not guilty. Heard by the court, December Term, 1881, Taft,.J., presiding. The court rendered judgment for the return of seven of the nine lambs sold by Leavitt to his wife, and one cent damages, and neither party to recover any costs. Both parties excepted.

Trial by jury, at the December Term, 1881, Taft, J., presiding. Trespass for taking an ox. Yerdict and judgment for the plaintiff to recover $4. The defendant, as constable, attached the ox on one writ, March 16, 1880, and on another writ in favor of another party, April 6, 1880, and held the ox in his possession till May 10, 1880, when both claims were paid. The other facts are sufficiently stated in the opinion.

Complaint for bastardy. Plea, not guilty. Trial by jury, December Term, 1881, Taft, J., presiding; and verdict for plaintiff.

<p> Insurance. Misrepresentation of Title. </p> <p>1. The plaintiffs purchased the premises insured, and executed a mortgage back to their grantor. The grantor in his conveyance to them covenanted a perfect title, and agreed to pay an old mortgage of $200, resting on the same. The plaintiffs represented to the defendant at the time of the insurance that theirs was the only mortgage on the premises. Held, that, in equity, though not in form, there was a disclosure of the true title, as the plaintiffs could extinguish theirs in chancery by the amount that they were compelled to pay on the other mortgage ; and that the court will not permit the insurer to avoid a policy for mere technical and formal defects.</p> <p>2. If the defendant, after it knew of the other mortgage, continued to treat the plaintiffs as holding a subsisting policy, and bound by its terms, it would be a waiver of the defence of misrepresentation of title.</p> <p>3. It is a question of title, and not of fraud.</p>

<p>Trespass for false imprisonment. Pleas, general issue and special plea in bar. Heard on demurrer to the special plea, December Term, 1881, Taft, J., presiding. Plea held sufficient. The declaration alleged that the defendants, without reasonable cause, assaulted plaintiff in Rochester, in the county of Windsor, on the 28th day of May, 1880, and carried him to Chelsea, in the county of Orange, and, after imprisoning him for four hours in a barn, committed him to the jail in said Chelsea, on the 29th day of said May; that they detained him in said jail two days, till the 31st; and that they then carried him the distance of twenty-five miles towards Woodstock, and on the same day conveyed him back to Chelsea, and “ there and in that vicinity further kept and detained the plaintiff for the further space of nine days,” against “ the mind and will of the plaintiff,” and contrary to law.</p> <p>The defendants joined in the plea in bar, and set forth that defendant, Perigo, was a lawful constable; that a “ certain writ of attachment in favor of the defendant Cleveland against the said plaintiff was issued by Aaron Davis, a justice of the peace within and for said county of Orange, directed to any sheriff or constable in the State, to serve and return, commanding him for want of the goods or estate of the said plaintiff to be found within his precinct, to take and attach his, the said plaintiff’s body, and him safely keep and have to appear before a justice court before the said justice at the office of Oeo. L. Stone, in Chelsea, in said Orange County, on the 10th day of June, A. D., 1880, at 9 o’clock in the forenoon, to answer to the said Cleveland in a plea of trover ” ; that said writ was delivered to said Perigo ; that said Cleveland was only the servant of the said constable; that, for want of any property to be found, the defendants lawfully arrested the plaintiff by virtue of said writ; that they “ took the said plaintiff to said Chelsea at the special and urgent request, of the said plaintiff, and kept and detained him, the said plaintiff, in custody by virtue of said writ, and at the special and urgent request of the plaintiff, at the barn and stable in said declaration mentioned for the cause aforesaid, and for the space of time in said declaration mentioned, as it was lawful for them to do for the reason aforesaid.” The plea then alleges that the defendants, at the request of the plaintiff, placed him in chai’ge of the keeper of the jail in Chelsea, for safe keeping, for two days ; that, at his request, they then carried him a certain distance with the intention of leaving him in the common jail at Woodstock, and on his agreeing to settle the justice suit and at his request, they carried him back to Chelsea, “ and therein and in that vicinity kept and detained him for the space of time in said declaration mentioned, as they lawfully might for the cause aforesaid.”</p> <p>The plea omitted to allege that the defendants detained the plaintiff at his request, during the last nine days, and also that the writ was ever returned.</p> <p>The plea is bad, because it does not show a return of the writ. Middleton v. Price, 2 Stra. 1184; Bac. Ab. Trespass (B); 2 Chit. PI. 591, n. (x) (Ed. 1819); Briggs v. Mason, 81 Yt. 441. The commitment should have been in the county where the arrest was made. Clayton v. Scott, 45 Yt. 386. To commit in any other was false imprisonment. Bac. Ab. Trespass (D); Salk. 408; 2 Chit. PI. 585 (Ed. 1819); 5 East. 284. The unlawful detention is the gist of the action; but the plea does not justify the last nine days’ detention. 3 Bl. Com. 138; Bac. Ab. supra.</p> <p>The arrest at Rochester was legal. The arrest having been made, it was competent for the parties to agree, “ at the special and urgent request of the plaintiff,” that he might be taken to Chelsea, and, remaining in the custody of the constable, there to await the event of his trial. It was for his own convenience. The defendants-could substitute the county jail for their own custody. In re Miron Foot, 31 Yt. 508 ; McMahon v. Mdgerton, 34 lb. 77.</p> <p>This case .should be carefully distinguished from the case of Clayton v. Scott, 45 Yt. 386, on which the plaintiff doubtless relies; for in that case there was an actual commitment to the county jail, in another county than that in which the arrest was made, while in the case at bar there is no pretence, indeed, the fact is quite the contrary, that Ellis was ever committed to Chelsea jail in the technical sense of the term, otherwise than that he was entrusted to the keeper of the county jail for safe keeping.</p>

<p>[In Chancery.]</p> <p>Repairs made by a Mortgagee in Possession, or by Ms Grantee, when not a Charge on the Premises.</p> <p>1. The assignee of a mortgage obtained a decree in a foreclosure proceeding without making the defendant, who had purchased the equity of redemption, a party; and, after the decree became absolute, conveyed the premises by warranty deed to the orator. The orator took possession, made necessary repairs, and, after discovering the true state of the title, brought a petition, setting up only the same mortgage debt which the assignee had in her petition, obtained a decree against the defendant for the amount due on the mortgage, and the defendant paid it within the limited time. Another bill being brought, to compel the defendant to pay for the repairs, or, to make them a charge upon the real estate. Held, on demurrer, that the bill should be dismissed; that the decree was conclusive of the amount due on the mortgage; and, that the orator, if he claimed that the repairs were a lien upon the premises, should have set it up in his petition to foreclose the mortgage.</p> <p>2. The orator stands as a mortgagee in possession before a foreclosure; and the defendant having paid the amount of the decree was entitled to the possession. The payment was a redemption of the premises.</p> <p>3. The betterment act does not apply to this case as now made.</p>

Replevin, for a steer. Plea, general issue with notice. Trial by jury, December Term, 1881, Taft, J., presiding. Yerdict for the plaintiff. It appeared that the plaintiff and defendant both purchased some steer calves in the fall of 1879 ; that the plaintiff employed his father to keep his; that, the next spring the yearlings of both parties were kept in pastures near each other, and they escaped from one pasture to the other and mingled together.

<p> Homestead. Abandonment of, Attachment of, Deed of. Ejectment. Married Woman when not a Witness. </p> <p>1. The master found that the owner of a homestead abandoned it on the 1st day of July ; that the plaintiff attached it on the 7th day of July ; and that it was deeded to the defendant on the 2d day September, all in the same year. Held, in ejectment, that the attachment prevailed over the deed.</p> <p>2. The question being which should prevail, an attachment, or a deed of certain real estate, it was held, that the wife of the grantor was not a witness for the grantee in an action of ejectment between the attaching creditor and such grantee.</p> <p>3. A married woman cannot be a witness in an action, though her husband be not a party, if he is interested in the event of the suit; and he is interested, if the judgment can be used, for or against him, in a subsequent case in which he is a party.</p> <p>i. Facts stated which constitute an abandonment of a homestead.</p>

Petition for a writ of certiorari. Mrs. Babbitt brought her petition to the County Court, as stated in the opinion; and that court Taft, J., presiding, September Term, 1881, found and ordered as follows: That the said Samuel Babbitt, husband of the petitioner, was an insane person, and should be confined in the asylum ; that his last legal settlement was and is in the town of Londonderry ; that the annual income of his estate, with the earnings of his wife and minor…

Trespass, for an assault and battery. Plea, general issue and notice. Trial, March Term, 1881, Taft, J., presiding. Yerdict and judgment for the defendant.

Action on the case, in which the plaintiff claimed to recover damages for an injury to his timber lands in Yernon, by reason of a fire claimed to have been communicated by the defendant’s engine. Plea, the general issue. Trial by jury, September Term, 1881, Taft, J., presiding; and verdict for the defendant.

Trespass, with a count in trover, for four horses and a quantity of lumber and chair stock. Pleas, general issue, and justification under process. Trial by jury, September Term, 1881, Taft, J., presiding. Verdict directed for the defendant. This case has been before the court at another term, and the facts are reported in the 52d Vt. 544.

Action on the case brought by the plaintiff as administrator of Hannah H. Dunklee, deceased, in which he sought to recover for the benefit of the two minor daughters, next of kin, of the deceased, damages claimed to have been sustained by them, by reason of an accident which resulted in the death of the said Hannah H. Plea, not guilty. Trial by jury March Term, 1881, Taft, J., presiding. Yerdict for the plaintiff to recover $1633.33.

<p> Attorney. Indemnifying Officer. Agent. Consideration. </p> <p>X. There is no consideration for the promise of an attorney to indemnify a sheriff who had sold property on an execution, and turned the avails over to the attorney or his client, the execution creditor.</p> <p>2. The rule, that, if an agent fails to bind his principal, he binds himself, does not prevail when the agent fully discloses his principal, the extent and limitations of his authority, and both he and the other party, enter into the contract from which the agent is not expected to, and does not, derive any benefit, under a mutual mistake in regard to the authority of the agent. In such a case the agent is not liable.</p>

Information filed by the State’s attorney, charging the respondent with despositing poison on hay, contrary to the statute. Heard on demurrer to the information, June Term, 1881, Powers, J., presiding. The éourt, pro forma, overruled the demurrer.

<p>Heard on demurrer to the declaration, June Term, 1881, Powers, J., presiding. The court overruled the demurrer, and allowed the plaintiffs to amend their declaration. The action was general assumpsit; and the defendant was summoned “ to answer to Matilda J. Jones and James M. Jones, husband of said Matilda J., of, Ac.”</p>

the Probate Court for the district of Randolph. Heard at' the June Term, 1881, Powers, J., presiding. The court, pro forma, adjudged that the legacies to Sophronia and Carrie Waterman were avoided by their attestation of the will. The case is stated in the opinion. Questions of this nature should be raised when the will is presented for probate, or it will be too late.

<p>Heard on an agreed statement, June Term, 1880, Powers, J., presiding. Judgment, pro forma, for the defendant.</p>

Assumpsit in general and special counts. Heard upon demurrer to the defendant’s plea, December Term, 1880, Powers, J., presiding. Plea adjudged sufficient. The case is stated in the opinion. • The plea discloses no defence. There was no consideration moving between the parties. It was thus an executed consideration, and so no basis for an agreement founded upon its delivery.

<p>Petition for Mandamus. The facts appear from the opinion. The case was submitted without argument.</p>

<p> Indictment. Bail. </p> <p>The fact that an indictment, found against a respondent and properly presented in open court at one term, but not entered upon the docket until the succeeding term, is not a cause for discharging his bail.</p>

Book Account. Heard on an auditor’s report, December Term, 1881, Powers, J., presiding. The court rendered judgment for the plaintiff for the sum found due by the auditor. Exceptions by plaintiff. The defendant claimed, and the auditor allowed him to prove by parol evidence, that some part of the plaintiff’s account was merged in a judgment. The other facts are sufficiently stated in the opinion.

Heard on a referee’s report, December Term, 1881, Powers, J., presiding. The Court disallowed the larger sum found due for rent. The action was assumpsit, containing only the general counts, claiming the sum of $90, “ for work and labor, care . . . ; also for a like further sum due from the defendant to the plaintiff for rent.” The other facts are stated in the opinion. Assumpsit is the proper action for rent. 1 Chit, PI. (8 Am. Ed.) 343 ; Chit, on Con. (11 Am. Ed.) 510-11.

<p> Injury on Highway. Notice. </p> <p>The following notice was given to the selectmen : “ Stowe, Aug. 21.1874. To the selectmen of Stowe.* I enter complaint for the roads not being what they should be. My wife stepped into a hole in a culvert near the Chas. Hanks place, or where IK W. Demeritt lives, July 22d, and hurt her left limb and back.” Held, that the notice was insufficient both as to the place where and the time when, the accident happened ; that if the notice does not state that the injury happened on a highway that the town was bound to keep in repair, the selectmen would be justified in disregarding it.</p>

<p>Heard by the court, April Term, 1881, Powers, J., presiding. Judgment for the plaintiff.</p> <p>Debt on bond given by A. Dwinell as principal, Geo. L. Waterman, E. B. Sawyer, Richmond Hooper, Robert C. Barnes, E. L. Whitney, E. Douglass and Eli Jewett as sureties to the plaintiff, dated December 1, 1875, to idemnify the plaintiff, who was then sheriff of Lamoille County, against any default, misfeasance, or malfeasance of said Dwinell, as his deputy sheriff.</p> <p>Plea, non est factum, as to one defendant, and that the said Dwinell took the receipt of S. W. Wiggins, of Ashland, Mass., who was then responsible, for the property attached by the direction of A. 0. Fletcher, the attaching creditor, or of his counsel, and also notice of special matter of defence,</p> <p>It was conceded that the property attached on the writ in favor of Fletcher was sufficient in value to pay the execution in his favor. The other facts are stated in the opinion. .</p> <p>This suit is premature, no claim having been presented against the estate of Dwinell. 46 Yt. 60.</p> <p>The case shows that judgment in original suit, Fletcher v. Hogan $ Co., was taken for $19.34 above the ad damnum in the writ. This was erroneous and cannot now be cured, and is consequently fatal to this suit. Brown v. Smith, 24 111. 196 ; Smith v. Phelps, 7 Wis. 211; Pope v. Salsman, 35 Mo. 362; Altes v. Hinehles, 36 111. 275; Roberts’ Dig., 416, sec. 11.</p> <p>Fletcher was not a competent witness, Dwinell the other party to the matter in issue or cause of action being dead. Acts of 1876, No. 83. Davis v. Windsor Savings Banlc, 48 Yt. 532; Hollister v. Young, 42 Yt. 403 ; Merrill v. Pinney, 43 Yt. 605.</p> <p>The judgment was not void, though the damages exceed the ad damnum. Brayt. 72.</p> <p>But error, if the court has jurisdiction, does not render the judgment void. Hammond Draper v. Wilder $ Look, 25 Vt. 342. The ad damnum is only one clause of the declaration, and is always subject to amendment. Harris v. Beilin, 48 Yt. 478.</p>

<p>Heard on the report of a referee, April Term, 1881, Powers, J., presiding. Judgment, pro forma, for the plaintiff to recover the larger sum reported.</p> <p>Action, trover. The plaintiff is the administrator of the estate of Miles Bennett, deceased. The suit was brought to recover the value of certain government bonds and money which the plaintiff claimed the defendants received of said Bennett in his life time, and since converted to their own use. The following question was asked E. P. Mudgett, a witness for the plaintiff:</p> <p>What is your opinion as to his (Bennett’s) capacity to dispose of and manage property of several hundred dollars in one transaction ?</p> <p>The referee allowed him to answer:</p> <p>Ans. My opinion is I should doubt his ability to convey that amount of property.</p> <p>The referee also allowed the following question to, and answer by, another witness, Dr. J. B. Jordan :</p> <p>Q. Was his (Bennett’s) mind in such condition that he could understandingly dispose of five hundred dollars in government bonds ?</p> <p>Ans. I don’t think it was.</p> <p>A motion was made for a certified execution. The court recommitted the report to the referee to report facts to enable it to determine the motion. He re-examined his minutes of the testimony taken upon the hearing before him, and submitted an additional report. The other facts appear in the opinion.</p> <p>In this case — as in all actions of trover — the “ cause of action in issue and on trial” is the conversion of the U. S. bonds; the conversion is the gist of the action. The substantial issues or questions litigated in the trial of this case were the mental capacity of Bennett to make a valid gift, and the demand for and the refusal to give up the bonds to the administrator, Melendy. The material question, then, is, who were the “ original parties” to this “ cause of action ?” As the conversion of the bonds was the gist of the action, who were the “ original parties” to the conversion ? If this court should hold that the conversion took place at the time when the demand was mad'e by the administrator upon Julia Spaulding, in the absence of her husband, when she had possession of the bonds, and she refused to deliver them, then, in that case, the “ original parties” to that transaction or “ cause of action in issue” would be the administrator, Melendy, and Julia Spaulding. And as neither of these parties is dead, the defendants, or either of them, would not be excluded as witnesses by the statute. An expert can be permitted to give his opinion upon a question of mental capacity based upon facts proved by other witnesses. 1 Green. Ev. s. 440. But neither an ordinary witness nor an expert can be asked to give his opinion as to the mental capacity of a party to do or perform the very transaction in question, as this is putting the witness in the jury box and asking him to decide the case. Fairchild v. Bascomb, 35 Yt. 416. The court erred in granting a certified execution. 35 Yt. 518.</p> <p>The reference being general in this case, all decisions made by the referee are final and conclusive, except such as are submitted to the court by the report. Learned v. Bellows, 8 Yt. 79 ; Steen v. Woodworth, 17 Yt. 297 ; White v. White, 21 Yt. 250 ; Cutting v. Stone, 23 Yt. 571; Park v. Pratt, 38 Yt. 545 ; Riley v. Noyes, 44 Yt. 455.</p> <p>The presumption is that the witnesses were professional experts.' 1 Best Ev. 616 ; 4 Iowa, 468; 19 La. 162; 41 Penn. St. 470; 2 Vt. 181; 31 Yt. 617 ; 38 Yt. 209; 33 Yt. 182; 43 Yt. 428. The evidence was admissible. 33 Yt. 15,124 ; 41 Yt. 99 ; 2 Best Ev. p. 944, n.; 31 Ga. 424. Plaintiff entitled to certified execution. 39 Yt. 177 ; Waite Act. & Def. 6, 178; 2 Green. Ev. 642 ; 22 Yt. 35; 35 Yt. 515; 42 Yt. 262.</p>

<p>Jury trial, September Term, 1880, Redfield, J., presiding. Case for the recovery of one half the value of a division fence. Verdict directed for the defendant.</p> <p>It was conceded that the plaintiff and defendant owned adjoining lands in Craftsbury; that the plaintiff had owned and occupied his land continuously from the 26th day of March, A. D., 1861, to the present time ; and it appeared that the plaintiff had built and kept said fence between the lands of the plaintiff and defendant in repair for more than fifteen years last past; that some time in May, A. D., 1879, the plaintiff called upon the defendant to divide and build his proportion of division fence, but defendant refused so to do ; that some time in July, 1879, plaintiff called out the fence viewers to divide the fence, and to appraise the value of one half of said fence at the time the defendant began to occupy and cultivate his close adjoining the said close of the plaintiff; that afterwards, on the 1st day of August, 1879, a majority of the fence viewers, upon due and proper notice to the ' parties, divided the fence and appraised the one half thereof at the sum of $3.00; that after said division, on the 1st day of August 1879, the plaintiff notified the defendant that the portion of said fence which the fence viewers had assigned to him in repair, was out of repair, and also notified him to amend the same, but the defendant refused so to do; that said, fence was out of repair and needed amending; that the said plaintiff on or after the 11th day of August, 1879, repaired the fence; that the repairs were worth 75 cents ; that a day or two after making said repairs the plaintiff demanded of defendant the said sum of $3.75, which the said defendant refused to pay or any part thereof. The plaintiff offered to prove by himself and several other witnesses, that on the 16th day of June, 1879, the said defendant began to occupy and cultivate his said close adjoining the close of the plaintiff, and from thence until the present time, continued to occupy and cultivate his close ; to which the defendant objected ; and introduced a certified copy of record of a decision of two, and a majority, of the selectmen of the town of Craftsbury, adjudging that the close of the defendant was unoccupied, unimproved and uncultivated land, so long as the same was used and occupied for no other purpose than as heretofore. In support of said objection, to the introduction and admission of which the plaintiff objected, but the court overruled the objection of the plaintiff and admitted the same ; and sustained the objection of the defendant and excluded the said evidence offered by the plaintiff. The plaintiff further offered to prove that said decision of the two selectmen was procured by the defendant by false and fraudulent representations, and under an agreement between the selectmen and said defendant, that if said selectmen would make said decision, he, the said defendant, would let his said close be vacant and common and would not cultivate the same ; but that after the decision was made, within two or three days, the defendant began to occupy . and cultivate a portion of his said close ; but the court refused said offer and directed a verdict for the defendant.</p> <p>State ofYemont, ^ J Copy of decision of Selectmen.</p> <p>Be it remembered, that at Craftsbury, on this 13th day of June, 1879, the undersigned, selectmen of the town' of Craftsbury, having duly . notified H. C. Miller and Ira Sanborn, the parties interested according to law, on the application of H. C. Miller, of Craftsbury, in the County of Orleans, and State of Vermont, have viewed and examined a certain tract and parcel of land in the Town of Craftsbury, in the County of Orleans and State of Vermont, described as follows, viz : Being the same land deeded to saidi Ira Sanborn, by Bussell W. Cowles, by deed, dated the 9th day of December, 1870, and recorded in the 12th volume, page 242, of land records, in .the Town of Craftsbury, to which deed reference is hereby made for a more complete description thereof, and we do decide and adjudge the same to be wild and uncultivated land not properly belonging to the farm, so cultivated by the said Ira Sanborn, or to any farm or lot occupied or cultivated by any other person, so long as the same shall be occupied for no' other purpose than as heretofore occupied by the said Ira Sanborn, and shall remain a common ; and we do further decide and adjudge that the said Ira Sanborn ought not to be compelled to build any part of the division fence ■ between said above described premises, and the premises owned and occupied by the said H. C. Miller. [Signed and recorded.]</p>

<p>Heard by the court, February Term, 1881, on the report of a commissioner, Ross, J., presiding. The court held both trustees liable for certain amounts ; and all the parties appealed. The leases, running for five years, covered separate premises, and were dated March 1877. The writ was served September, 1878. Blaisdell, the claimant, had attached and set off the premises in October, 1879, on an execution ; and notified the trustees in May, 1880, that they must pay the rent to him. The manner of the claimant’s proceeding before the commissioner is stated in the opinion. The commissioner found, among other facts :</p> <p>“ As to the trustee Hawkins, I find the following facts: that his lease was executed on the 2d day of March, 1877, and was for an annual rent of the sum of two hundred and fifty dollars, to be paid to the said Felker on or before the 1st day of April in each year, commencing on the 1st day of April, A. D. 1878. The first year’s rent was paid by said trustee Hawkins to the defendant Felker, and sixty-nine dollars and fifty cents overpaid to apply on the second year’s rent; and in this payment the trustee charged the defendant fifty dollars for hay fed out and wasted by him, and for feeding the mowing in the fall. Before the service of the writ in this case, it was agreed by the trustee and defendant that said sum of fifty dollars should be allowed the trustee, and I have allowed the same in settlement of the first year’s rent, being as before stated, $69.50 to apply on second year’s rent, due April 1, 1879. At the time defendant Felker agreed to allow said $50, he further agreed to allow the trustee a reasonable sum for any claim he might have in the future of the kind against him. The second year’s rent was claimed by the trustee to be paid as follows: $69.50 overpaid first year, and by a charge against the said Felker of $50 for hay fed and wasted, and feeding the mowing, and by note paid to said 0. J. Rowell, dated April 1, 1876, which said trustee paid April 1, 1879, with interest on the same, amounting to the sum of $267.28, which note the trustee had become holden for before the service of the writ on him in the case, which sums I allowed to the trustee. The item of $50, charged for hay fed and wasted and feeding the mowing, is allowed, subject to the opinion of the court upon the facts hereinafter stated about said item and others of the same kind, making the sum of $386.81, which paid the second year’s rent, and leaving $145.01 in part payment for the third year’s rent, and on which is $8.20 interest up to the time the third year’s rent became due ; and besides the $145.01 charged by the trustee on the second year’s rent, the trustee charged $60 to the defendant for hay fed out and wasted by the defendant and feeding mowing and taking up bridge to the barn, and boards out of bottom of bay to barn to keep the hay off of the ground. The boards were drawn by the trustee from his place, which item is allowed subject to the opinion of the eourt upon the facts therein found. The trustee also charged the defendant for a note dated November 28,1877, for $50, given by the defendant to J. H. Brown. The defendant requested the trustee to take up this note held by said Brown, and the trustee saw said Brown and told him he would take up the note. This was before the service of this writ on the trustee. This was all in parol. I further find that he did nothing about it till after the writ was served on him in this case ; and some time after he took it up — which amounted to $14.04. This note and interest, added up to the 1st day of February, 1881, is $14.46, and is allowed, subject to the opinion of the court. These items, amounting to $196.66, the trustee claimed should apply on the fourth year’s rent, leaving, as the trustee claimed, unpaid on the fourth year’s rent the sum of $63.84, which will be due April 1, 1881, and the last year’s rent, $250. due April 1, 1882.”</p> <p>Both trustees, Hawkins and Cook, deny any liability as trustees for the last year’s rent, for the reason that it is not “ due absolutely and without any contingency.” Gen. Sts. c. 34, ss. 6 and 7. It is not due because it depended upon the “contingency ” of peaceable possession and no interference on the part of the lessor. The lessor, through some freak or claim of right, or from downright lawlessness, terminates the lease and re-enters upon the land ; the lessor- would not, of course, be liable to pay rent. How, then, can the rent be said to be “ due absolutely and without any contingency ? ” Besides, Hawkins had agreed with defendant that whatever he .damaged his possession under the lease, should be taken from the rent. And how can the amount due under the lease with that supplemental contract be ascertained till the expiration of the year ? Yet he is adjudged trustee for the whole, when the commissioner has found that Felker agreed to allow upon the rent, $50 for the first year, and has found $50 a year a reasonable sum for the second and third years, and $60 for the fourth year, for the lessor’s violation of his covenant for peaceable possession. Judging by these four years, what will be the damage for the fifth year’s interference ? To be reached by the trustee process, the debt must be a debt in presentí, though the payment may be left to the future. Sargent v. Leland, 2 Yt. 280; Hutchins v. Hawley, 9 Yt. 295; Hitchcock v. Hdgerton, 8 Yt. 202 ; Hoyt v. Swift, 13 Vt. 129; Burke v. Whitcomb, 25 Yt. 650 ; 40 Yt. 241.</p>

Covenant. Heard on the report of a referee, September Term, 1880, Redfield, J., presiding. Pleas, general issue, that plaintiff did not perform his covenant, and several pleas in offset. The case was referred to Hon. Timothy P. Redfield. Judgment on the report for the plaintiff.

<p>Heard on referee’s report, September Term, 1881, Powers, J., presiding. Judgment for the defendant.</p> <p>The referee found:</p> <p>On April 1st, 1878, the plaintiff and D. W. Weston made a bargain or agreement with reference to a certain organ. The bargain or agreement was reduced to writing, and was in these words and figures:</p> <p>Burlington, Yt., Arril 1st, 1878.</p> <p>This certifies that I have hired of W. H. S. Whitcomb, of Burlington, one Smith American Organ, style 7, (it being the organ delivered to me by L. R. Austin for said Whitcomb,) in the following terms : fifty-seven dollars and fifty ceüts to be paid with interest on or before September 1st, 1878, and fifty-seven dollars and fifty cents to be paid with interest, on or before one year from date, the latter sum being embodied in a joint note, signed by 1.1ST. Austin with me, all of which is to be promptly paid at the office of W. H. S. Whitcomb, in Burlington, Yt., when the same becomes due, without any demand being made for the same., And I also agree that said organ shall not be let or removed from the premises of I. AT. Austin without the written consent of said Whitcomb. It is expressly understood that until the whole sum of one hundred'and fifteen dollars, and interest on the same, is fully paid to said Whitcomb, I neither acquire nor does he part with his interest and ownership of said organ. And in case of failure to pay any of the amounts stated above, as above due, I hereby authorize said Whitcomb, or any authorized agent of his, to enter the premises where the organ may be and take and remove said organ therefrom. And for any actual or apprehended violation of any of my agreements herein, I hereby agree to deliver up said property in as good condition as received, ordinary use and wear excepted, whenever requested so to do by any duly authorized agent or representative of said Whitcomb.</p> <p>(signed) D. W. Weston.</p> <p>Witness : L. R. Austin.</p> <p>At the time of this transaction, the instrument was worth about $115, the sum named in said instrument as rent. Weston lived in Underhill, just across the road from I. N. Austin’s, named in said instrument of writing as the person from whose premises the organ was not to be removed without Whitcomb’s consent. The premises on which Weston lived belonged to Austin, as did also the premises on which Austin himself lived.</p> <p>After the maturity of the note mentioned in the foregoing contract, the plaintiff brought suit upon the same and recovered judgment thereon, May 6th, 1879. A trustee was summoned in this suit and was adjudged chargeable in the sum of $25. Nothing has been paid on this judgment by the principal debtor. Nothing was shown to have been paid by the trustee.</p> <p>The organ was sold on an execution by the defendant, as sheriff. It had been in- said Weston’s possession until a week or ten days before the attachment, when it was taken to the house occupied by Austin, on tbe occasion of some entertainment there. It remained there until attached.</p> <p>The written contract was a lease. The organ was not attachable. 9 U. S. Dig. p. 366, s. 4382. By the terms of the contract Austin was made bailee of the organ for the use of Weston. Therefore, Weston acquired no title to the organ, by wrongfully keeping possession of it which could avail an attaching creditor.' Lynde Morse v. Melvin, 11 Vt. 683 ; Hillard on Sales, 437, 441. At the time of the attachment the organ was in the possession of Austin, in accordance with the terms of the agreement. It is incumbent on the party claiming under the statute to bring himself within its terms. Where a right depends on the bona fides of a party, the burden of proof is always, on him. There is no presumption in favor of an attaching creditor. He must show that he is a creditor, and that he has acted in good faith. The rule is the same in all analogous cases. In the case of an endorsee of a promissory note, the burden is upon him to show purchase without notice, where there is a defence as to the payee. Sanford v. Norton, 14 Yt. 233 ; G-ould v. Stevens, 43 Yt. 128 ; 48 Yt. 24 ; 1 Pick. 165. It is a case where the facility of proving the proposition is peculiarly within the hands of the party making the attachment, and this is a strong reason why he should take the burden of bringing himself within the statute. 1 Greenl. s. 79 ; Starkie Ev. 539, 540. The defendant was put upon inquiry. 33 Yt. 337 ; Jones on Ghat. Mort. s. 308 ; 52 Yt. 76 ; 1 Jones on Mort. s. 580; 53 Yt. 389.</p> <p>The transaction was a conditional sale. Alb. Law J., Sept. 3, 1881, (Brunswick v. Hoover). If any doubt could exist as to the real nature of this contract, the recovery of a judgment by the plaintiff upon the last instalment falling due under it would seem to remove it. Fuller v. Buswell, 34 Yt. 107. Therefore, if under such circumstances, notice of the existence* of a lien upon the property in him is availing at all, it must follow that the burden is equally imperative to establish all these facts, which the statute makes equivalent to a recorded lien. Brackett v. Waite, 6 Yt. 424; 53 Vt. 389 ; Appeal of BhillipsburgJi Savings Bank, (Pa. Sup. Ct.) Cen. L. J., Aug. 19, t1881; Jones Chat. Mort. s. 310.</p>

Assumpsit for work and labor. Jury trial, September Term, 1881, Powers, J., presiding. Yerdict for the defendant. The case appears in the opinion.

<p>Maintaining a Nuisance contrary to R. L. s. 3836 — Liquor Law. Demurrer.</p> <p>A complaint, under theR. L , s. 3836, alleging that the respondent kept and maintained a har-room, in which intoxicating liquors were unlawfully sold, without any averment, that it was “ used as a place of resort,” is insufficient; hut it is amendable, although no motion was made to amend until the case reached the Supreme Court.</p>

<p>Heard by the court, September term, 1881, Powers, J., presiding. The court overruled the motion in arrest. The following is the indictment:</p> <p>State of Vermont, > Chittenden County, ss. j</p> <p>Be. it remembered, that at a county court, begun and holden at Burlington, within and for the county of Chittenden, on the third Tuesday of September, A. D. 1881, the grand jurors within and for the body of the county of Chittenden aforesaid, now here in court duly empaneled and sworn, upon their oath present that Eugene Carpenter, and Thomas Fassett, of Burlington, in the county of Chittenden, on the, to wit: 12th day of September, A. D. 1881, at Burlington, in said county of Chittenden, with force and arms, in and upon Joseph A. Larose, then and there being a police officer of the city of Burlington, in the county of Chittenden aforesaid, under the .authority of the State, did an assault make by then and there beating him, the said Joseph A. Larose, with fists, clubs, feet and sticks, and did then and there by means of which impede and hinder the said Joseph A. Larose, police officer aforesaid, while in the execution of his said office, of police officer as aforesaid, and while he as such police officer was engaged in attempting to quell and quiet a disturbance of the public peace between them, the said Eugene Carpenter and Thomas Fassett, and other persons to the grand jurors aforesaid at present unknown, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>The other facts appear in the opinion.</p>

Action under the statute for damage done to the plaintiff’s sheep by the defendant’s dog. Jury trial, June, 1881,'Pierpoint, Ch. J., presiding. Verdict and judgment for the plaintiff. The plaintiff, after stating that he notified Mr. Hammond, the first selectman of Middlebury, of his injury, testified as follows: Q. He went and examined the sheep, did he, and you were with him? A. Yes.

Heard on motion to quash the writ, December Term, 1881, Royce, J., presiding. Motion, pro forma, overruled. The defendant, Jones, on whom the writ had been served, moved that “ the cause be quashed and abated, because, he says, that no service of said writ has been made upon the defendant, Munson, as appears by the said writ and return thereon; and said return shows no excuse or reason for the said omission of service upon said Munson.”

Ejectment. Heard December Term, 1881, Royce, J., presiding. Judgment for the plaintiffs. It appeared that the defendant was and had been in possession of the premises under a conditional deed from plaintiffs since April 26, 1875; that the conditions both as to the payment of money and the maintaining of the fence were broken ; but that some payments had been made.

<p>Heard by the court on an agreed statement, December Term, 1881, Royce, J., presiding. Trespass, trover and trespass on the case, for the conversion of one mare, colt and four cows. Judgment for the defendant. The case appears in the opinion.</p> <p>As a sale on mesne process a return was necessary. Hilliard on Mort. 200 ; 53 Yt. 109 ; 49 Yt. 98 ; 52 Yt. 343. An officer cannot justify by a parol return when it is his duty to return his doings in writing. 9 Mass. 247 ; 3 Bl. Com. 336 ; Green. Ev s. 86; 6 Gray, 237 ; 14 Mass. 123 ; 7 Mass. 388 ; 6 Cush. 244 ; 5 Met. 517 ; 21 Pick. 187 ; 6 Pick. 455 ; 9 Pick. 14 ; 16 Pick. 14; 48 Yt. 403 ; 18 Yt. 67 ; 26 Yt. 750 ; 6 Vt. 66 ; 4 Vt. 182 ; 12 Yt. 195. The return is defective in substance. No notice of the application for sale was given to the plaintiff. 37 Yt. 289 ; 13 Mass. 483 ; 19 Vt. 451; 33 Yt. 13 ; 2 Hilliard Torts, 190.</p> <p>In Fitzpatrick v. Peabody, 51 Yt. 198, the court refer to Hall v. Miller, 15 Yt. 211; to Hall v. Ray, 40 Yt. 576 ; 7 Yt. 92, and Mead v. Deane, 20 Yt. 612, and say that it is true that by the officer’s return in these cases the sales appeared to have been regular, but the facts were allowed to be shown, and the decisions were placed upon the facts shown, i. e., facts shown outside the returns, and in addition to, if not modification of the contents of the return as made by the officer.</p> <p>Officers are not estopped by their returns from proving facts not therein contained. 2 Mass. Dig. p. 3942, s. 48 ; 9 Pick. 67 ; 14 Pick. 332 ; 52 Yt. 297 ; 1 Allen, 541; 17 Mass. 601.</p> <p>In no event can the plaintiff recover in this action. The acts complained of are at the most purely those of nonfeasance ; and if this defendant is liable at all, it would be only in a special action on the case against him as such constable, and then only liable for the damage actually suffered by the plaintiff. 19 Vt. 557 ; 26 Vt. 557; 25 Yt. 674; 21 Yt. 151.</p>

General Assumpsit. Heard on the report of referees, September Term, 1881, Royce, J., presiding. Judgment for the plaintiff to recover §385, and interest from the 14th day of February, 1874. The defendant excepted to the admission of evidence to vary the terms of the release under seal.

General Assumpsit'. Heard on the report of referees, April Term, 1881, Rovce, J., presiding. The court rendered judgment for the plaintiff to recover the smallest sum found due in the report. Before the referees the defendant presented the following, as his exhibit, No. 1: [$69.96.] Fairfield, November 13,1875.

<p>[In Chancery.]</p> <p> Mortgagee in Possession. Rents and Profits. </p> <p>Defendant, M„ owned eight first mortgage notes dated March 1st, 1866, two second mortgage notes dated August 26, 1868, the orator, two third mortgage notes, of the same date as the last, all secured on the same premises. M. foreclosed without malting the orator a party, his decree became absolute March 1st, 18T9, and deeded the premises May 29th, 1880, to the wife of defendant C. M., or his tenant, never had possession, nor received any of the rents and profits. M. made certain payments on some of the notes before he purchased them for the purpose of protecting his interest in the premises under his mortgage. On a bill being brought by the orator, Held,</p> <p>1. ThatM. was not liable to account for the rents and profits before he deeded; that actual possession, either in person or by a tenant, or a receipt of the profits, must be shown to render a mortgagee liable to account.</p> <p>2. That equity would not apply the payments in reduction of the notes, but treat them as made towards their purchase.</p>

<p>Jury trial at the April Term, 1881, Royce, J. presiding. Yerdict for defendant. The case appears in the opinion.</p>

<p>Bill of interpleader, to have determined to which of the defendants the orator should pay a certain note claimed by the defendant, H. E. Seymour, executor, and by said Elizabeth, as do-nee. Heard, September Term, 1881. Ross, Chancellor, decreed:</p> <p>This is a bill of interpleader, and a decree that the defendants, Henry E. Seymour executor, and Elizabeth Seymour interplead, having previously been entered, the cause came on for hearing between said defendants, on the bill, answers, replication, testimony, stipulations and motion to suppress testimony, by the defendant, H. E. Seymour, Exr. It is considered that by the stipulation, the transcript of the reporter’s minutes of the testimony of Martin A. Seymour, Elizabeth Seymour and Chas. St. John Seymour is made evidence in this case; that the subsequent depositions of Chas. St. John Seymour are inadmissible because of his marital relation to Elizabeth, and are suppressed ; and the motion in other respects is overruled. It is further ordered and decreed that the note in controversy is the property of said defendant, Elizabeth Seymour, and the orators are ordered to pay the money due thereon into the court for her; and that the further prosecution of the suit-at law in favor of H. E. Seymour, Exr., be perpetually enjoined; that the orators and Elizabeth Seymour recover their costs of H. E. Seymour, Exr.</p> <p>The case is stated in the opinion.</p> <p>The stenographer’s transcript of testimony of Martin A. Seymour should have been excluded. 1 Phill. Ev. 338. So that of Elizabeth Seymour. She is as well a party with regard to the substantial issues made by the evidence as the formal issues made by the pleadings. The determination of this suit will affect the estate of the deceased party. 38 Yt. 83 ; 39 Yt. 590; 41 Yt. 314; 42 Yt. 403; 44 Yt. 91; 48 Yt. 78 ; 51 Yt. 589.</p> <p>The reservation of “ the right to object to the same or any portion thereof for immateriality, irrelevancy or other matter of substance,” does not touch the competency of the witness. Hoscitur a sociis — “ other matter of substance,” means other like matter of substance. Motley v. Head, 43 Yt. 633.</p> <p>The motion to suppress the testimony of Martin A. Seymour is “ because the testimony was originally given in a cause between different parties.” If this objection, the stipulation notwithstanding, is to be considered, there is nothing in it. The parties were substanially the same and the issue the same. Henry E. Seymour had opportunity to cross-examine and did cross-examine. This, is the test of admissibility, rather than strict identity of cause and parties. 1 Greenl. Ev. s. 163, 164; 1 Cow. & Hill’s note to Ph. Ev., note 438 (p. 573) ; Phil. B. B. v. Howard, 12 How. 307; Indianapolis B. B. v. Stout, 53 Ind. 143 ; 8 U. S. Dig. N. S. 323.</p>

Case, injury on a highway. Trial by jury, September Term, 1881, Royce, J., presiding. Verdict and judgment for the plaintiff. It appeared that the notice given, by the plaintiff to the defendant was lost. The court ruled that parol evidende was admissible to show what the notice contained as to the place whore the accident occurred ; and that what it contained, and its sufficiency, was exclusively for the court to decide ; to which the defendant excepted.

For the facts in this case see 53 Yt. 228-278. The case was continued and heard before the full bench at Montpelier, May, 1882. ' The special masters found, among other facts : “The Central Vermont Railroad Company presented a claim for money originally advanced by it (leaving the matters in relation to the discharge of the duties of its trust and its relation to other roads for adjustment in settlement of its account), for the sum of $681,378, and interest thereon to July…

Heard on demurrer to the declaration, April Term, 1881, Royce, J., presiding. Demurrer sustained. The fraud and imposition of the defendant practiced upon the plaintiffs to induce them to sell and deliver goods on credit was of a nature that common prudence could not guard against. Fisher y. Brown, 1 Tyler, 404, 405; Bigelow Fraud, 71.

False imprisonment. Trial by jury, September Term, 1881, Royce, J., presiding. Plea, general issue, with notice of special matters of justification. Yerdict for the defendant. The plaintiff was arrested by the defendants on the 9th day of November, 1879, about nine o’clock Sunday evening, without warrant, for injuring sheep in a cattle yard belonging to the railroad company at St. Albans. The sheep were there waiting to be put on the cars, to be shipped to market.

Heard on the report of a referee, September Term, 1881, Yeazey, J., presiding. The court adiudged 1195.05, the larger sum named in the report, to be due the ward. The case appears in the opinion. We submit that there is no rule of law which makes it negligence per se for a trustee to make a temporary loan, of a small amount of money, like this, upon personal security. Such a rule would compel trustees to keep small amounts of money on hand.

<p>Case, to recover for personal injuries caused by the defendant’s dog. Heard by the court, September Term, 1881, Veazey, J., presiding. Judgment for the plaintiff. The case is stated in the opinion.</p>

Assumpsit. The plaintiff’s account was for keeping six horses, $133.50 ; wintering one colt, $15.00 ; paid for cleaning horse, 50 cents ; paid for drawing shoes, 20 cents; paid for shoeing horse, 50 cents. The court below rendered judgment for the plaintiff to recover $1.20 damages, and $5.00 costs ; and taxed the defendant’s costs at $31.91.

Action upon the statute of 1870, No. 76, entitled “An Act to protect Butter and Cheese Manufacturers.” Heard on demurrer to the declaration, March Term, 1881, Powers, J., presiding. Demurrer overruled.

Replevin for one horse. Heard on an agreed statement, March Term, 1881, Essex County, Ross, J., presiding. Judgment for the plaintiff. The writ was served July 12, 1880 ; chattel mortgage was dated July 15,1879. On April 1st, 1877, the plaintiff gave the defendant a bond for a deed of certain real estate, and received therefor seventeen $100 notes, payable one note each year.

Action, to recover for injuries alleged to have been received while traveling over a bridge. Trial by jury, December Term, 1880, Caledonia County, Ross, J., presiding. Verdict for the plaintiff. The plaintiff gave evidence tending to show that on the evening in question between nine and ten o’clock when it was very dark, he was traveling over this highway, known as School street, in the village of Lyndon, in a wagon drawn by one horse.

Heard on the report of a referee, June Term, 1880, Powers, J. presiding. Judgment for defendant. Action, to recover damages for taking an insufficient jail bond.

Assumpsit. Trial by jury, June Term, 1881, Caledonia County, Boss, J., presiding. Verdict for the plaintiff. Plea, general issue.

Bill to enjoin an action at law brought by one of the defendants, to have determined the rights of the parties to certain premises. Heard, -February Term, 1880, Orleans Cpunty, Redeield, Chancellor.

Bill to foreclose a mortgage. Heard on bill, answer, traverse and testimony, and cross-bill, answer, traverse and report of a master, March Term, 1879. Redeield, Chancellor, ordered that the orator, Walworth, have a decree as of a foreclosure ; that the judgment in favor of Hazen Campbell be offset and deducted from the sum found due the orators on the report, according to the prayer of the cross-bill, leaving now due the sum of $2981.83.

Replevin for eighty-four sheep. Heard on the report of a referee, May Term, 1881, Taft, J., presiding. The court rendered judgment that forty-four of the sheep were unlawfully taken and detained by the defendant, and the remainder were lawfully taken and detained, and that neither party recover costs. Plaintiff excepted. The case appears in the opinion.