Volume 55 — Vermont Reports

Petition for writ of certiorari, also, for writ of habeas corpus. The case is stated in the opinion. The writ of certiorari should issue. 2 Pick. 172; 2 U. S. Dig. 128 ; 54 Barb. 589 ; 22 111. 383 ; 12 111. 143 ; 14 111. 35,144; 9 Mich. 324; 9 Iowa, 583 ; 26 111. 243 ; 19 Wis. 591; 17 N. Y. L. 25.

<p>Debt on judgment brought in the Municipal Court of Rutland. Judgment for the defendant. The writ was dated May 12th, 1882, and declared in debt on a judgment rendered by said court, July 5th, 1880, which last judgment was upon a judgment rendered by a justice of the peace, July 19th, 1874.</p> <p>After the rendition of the judgment declared upon in this suit, the defendant filed his petition in the Court of Insolvency for the District of Rutland, and the same was duly proceeded with ; and the defendant duly obtained his discharge as an insolvent debtor from all debts and claims which by law he might be discharged from by the Court of Insolvency; but the plaintiff did not prove his claim, nor in any way consent to such discharge, nor in any way admit the jurisdiction of the Court of Insolvency.</p> <p>Both parties resided in this State.</p> <p>An insolvent law discharging a debt existing before its passage is unconstitutional. U. S. Con., Art. 1, s. 10 ; Bixby v. Woodward, Windham County, Eeb. Term, 1882 ; 17 Johns. 108. The discharge is no bar. Walter v. Wendall, 19 Johns. 153; Moore v. McMillan, 54 Vt. 27 ; Whitney v. Whitney, 35 N. H. 457 ; 6 Wheat. 131.</p> <p>The contract sued upon is the judgment of July 5, 1880.</p> <p>The plaintiff could elect to retain his debt as it was, or to take a new and better security subject to the provisions of the insolvency law. He could not do both. Baldwin v. Rowell, 52 Vt. 57-: 15 Gray ; Pierce v. Eaton, 11 Gray, 398 ; Bangs v. Watson, 9 Gray, 211; Austin v. Growly, 10 Met. 332; Rindge v. Growly, 10 Cush. 43.</p>

<p> Pleading. Variance. Negligence. </p> <p>1. The declaration alleged that the plaintiff’s horse was placed in defendant’s possession, to be agisted for reasonable reward, and that the defendant so negligently kept the horse that by such negligence the horse was gored by a bull and killed. On trial the p’aintiff gave evidence, without objection, that the defendant agreed that he would not put thehorse in the same pasture with the bull, but in another lot; but, that he kept them together. Held, that there was no variance between the proof and the declaration.</p> <p>2. Distinction between an action counting on one’s negligence, and one based on a breach of contract.</p> <p>3. It seems that trover will not lie for not properly agisting a horse.</p>

Replevin for twenty tons of hay. Plea, general issue and notice. Trial by court, March Term, 1881, Veazey, J., presiding. Judgment for the plaintiffs. The defendant was a sheriff, and levied an execution upon this hay, issued upon a judgment rendered July 14th, 1879, in favor of M. & O. H. Edson, against said L. W. Ackley alone, and for his sole debt.

Trespass, for burning a store building of the plaintiff in the town of Wells. Plea, general issue. Trial by jury, September Term, 1882, Yeazey, J., presiding; and verdict for the plaintiff.

<p> Evidence. </p> <p>1. A party cannot impeach his own witness ; and it is not in the discretion of the court to allow him to do so, either by general evidence, or by proof by other witnesses of prior contradictory stat'm°nts.</p> <p>2. Proof that a witness was drunk at the time of the event to which he testifies may be introduced to discredit him.</p> <p>3. When a deposition was excluded on the ground that the witness was in court, and the witness was then called, and on cross-exarainaUon testified that the p’aintiff about the time of the taking of the deposition had given him a pair of shoes, and intoxicating liquor, it was held that the plaintiff could repel the imputation cast upon him, but that he could not show that the witness had made prior con tradictory statements.</p>

<p> Statute of Frauds. Filing Pleas out of Time. Fvidenee. Pleading. </p> <p>X. If one makes a verbal contract for the sale of his farm, and then repudiates it, he cannot invoke the aid of the Statute of Frauds to enable him to retain what he ■ received under such contract.</p> <p>2. Filing pleadings out of time is a matter of discretion with the County Court, and not revisab!e by the Supreme Court.</p> <p>3. The defendant pleaded an offset; the plaintiff filed what he called a “replication in estoppel ”; the' defendant traversed it; and the court decided that the replication and proof did not make out an estoppel. Held, that the evidence being pertinent to the issue thus formed was admissible; and that it was not like the admission of improper evidence and then attempting to charge it out.</p> <p>i. The plaintiff admitted that the defendant was entitled to recover $5 under his plea in offset; the jury returned a general verdict for the plaintiff for $8.§0, and a special verdict that defendant recover nothing. A motion was made in the County Court to set aside the verdict and for a new trial, which was denied. The judgment below was affirmed.</p>

<p>Action against Husband and Wife sustained on Demurrer for Debt of Wife contracted in another State. Conflict of Law — Ií. L. s. 232.</p> <p>1. A count in general assumpsit against husband and wife jointly is held good on demurrer.</p> <p>2. Also, a special count, alleging an indebtedness contracted by the wife during cov•erture, in another State, by whose laws she had the legal capacity to contract, to carry on business, and to bind herself in payment; that the debt was for goods delivered to the wife; and that in consideration thereof both defendants promised to pay.</p> <p>3. A married woman carrying on business in her own name, by Statute R. L., 2321, may sue and be sued.</p> <p>4. Where the wife may contract, the husband is not liable by virtue of his marital re'ation; but may be by his juint promise.</p> <p>5. Conflict of Law. A law valid where made is valid everywhere; hence, the contract of a married woman, made in another State and valid there, is held valid here.</p>

<p>Assumpsit. Heard on a referee’s report, September Term, 1881, Veazey,'J., presiding. Judgment for the plaintiff to recover the smaller sum named in the report. The refei’ee found, that school district No. 9 in Clarendon, at its annual meeting in 1878 elected three committee men, one of whom was tho plaintiff; that two of the committee contracted with him for his minor son, J. M. Brown, to teach the school in said district, and board at his house, and pay him $60 for teaching and $15 for board ; that the son taught the school, rendering efficient service to the district, and boarded at home; that the plaintiff had received therefor only $50.35 ; that at said annual meeting the district voted “ in respect to boarding the teacher for the year ensuing : ‘ To board around in proportion to the grand list.’ ” The referee found that if the plaintiff could recover for the board he was entitled to $29.08 ; but if not, to $11.38. The other facts are stated in the opinion.</p> <p>A prudential committee, acting in good faith, has the right to furnish wood, supplies, teachers, or any thing else within the line of his duty to provide, and collect pay for the same on a quantum meruit.</p> <p>The contract, however, was made by the two other committee men, and was entire. Groodwin v. Perkins, 39 Yt. 598 ; Norton v. School Dist. 37 Vt. 521.</p> <p>The committee can not control the school house against a vote of the district, except to keep the district school. Chaplin v. Hill, 24 Vt. 528; Bussell v. Dodds, 37 Vt. 497 ; or, employ counsel to defend a suit.' Harrington v. School Dist. 30 Yt. 155 ; 36 Yt. 693. Public officers cannot contract with themselves. Cumberland Coal Co. v. Sherman, 30 Barb. 553; Picket v. School Dist. 3 Am. 105 ; Story Agency, s. 210. One of the committee was not a voter, and therefore ineligible. Woodcock v. Bolster, 35. Yt. 632.</p>

<p>Petition to bring a cause forward and vacate a judgment on the ground of mistake. Heard September Term, 1882, Veazey, J., presiding. Petition dismissed. The action against said Owen was debt upon a recognizance in a suit in favor of the State against one Stewart, it being a criminal process signed by a justice of the peace. Said Stewart was fined for selling intoxicating liquor; and the record of the magistrate showed that Owen duly recognized to the amount of $100 for his appearance, on appeal, to the County Court. In the suit against Owen judgment was rendered by default against him for $56.63. He intended to make a defence ; and it was by mistake that he did not. The petitioner claimed that he never entered into the recognizance; “ that if there is any such record it is wholly fraudulent and void ” ; and wished to have the judgment vacated that he might make this defence, and no other.</p> <p>The record was fraudulent. Fraud is a proper defence. State Treas. v. Go ok, 6 Vt. 282 ; Park v. Sumner, 23 Vt. 538; Mott v. Razen, 27 Yt. 204 ; 53 Yt. 568 ; Story Eq. s. 160 ; 40 N. H. 348 ; 2 Mass. 481; 15 East, 617; 21 Yt. 409 ; 43 Yt. 91; 9 Vt. 343 ; 15 Vt. 505.</p> <p>The record of the justice is conclusive. Beach v. Rich, 13 Yt. 595 ; 12 Yt. 538, 657 ; Middlebury v. Ames, 7 Yt. 166.</p>

Petition alleging that at the March Term, 1882, of Rutland County Court, a judgment was rendered by default against the petitioner in favor of the petitionees through fraud, accident or mistake, and that the petitioner was deprived of a hearing; and praying that the judgment be set aside and for a new trial. Heard, September Term, 1882, Yeazey, J., presiding.

<p>Assumpsit. Plea general issue with notice of payment. Trial by jury, and verdict for plaintiff.</p> <p>The plaintiff claimed to recover a balance alleged to be due him from the defendant on account of sixteen days’ work done by the plaintiff for the defendant in the building of a house for the defendant at North Walpole, New Hampshire, which is just across the Connecticut River from Bellows Palls in Vermont, under an alleged contract that the defendant would pay the plaintiff carpenters’ wages therefor. The plaintiff also claimed to recover upon the quantum meruit, if a special contract was not made out; and introduced evidence tending to show his competency as a carpenter.</p> <p>The defendant claimed and introduced evidence tending to show that such was not the contract, but that the stipulated price per day was $1.20, and that he had paid the plaintiff in full according to said stipulated price, and also-all that his work was worth.</p> <p>The plaintiff’s specification was for $2.25 per day. And he testified that carpenters’ wages at said’ Walpole, at the time he did said work, were from $2.25 to $2.75 per day ; and further, under the objection and exception of the defendant, introduced evidence to show what carpenters’ wages were at that time in various towns in Vermont; namely, Rutland, Bennington, Manchester, Pittsford and Brandon.</p> <p>This evidence tended to show that the wages paid in said towns in Vermont were from $2, to $2.50 per day.</p>

Assumpsit. Plea, general issue. Trial by court, September Term, 1882, Yeazey, J., presiding. Judgment, for the defendant. It appeared that, on July 23d, 1880, one S. G. Bridges had a contract with the U. S. government for furnishing and erecting marble headstones for soldiers’ graves, and that he was borrowing money to use in executing his contract.

Account. Heard on the report of auditors, September Term, •1882, Veazey, J., presiding. Judgment pro forma for the plaintiff to recover $232.43. The defendant was the owner of a hotel. She sold to the plaintiff an undivided half of the hotel fixtures, furniture and livery property. The auditors found: “They however, in May, 1880, by a mutual understanding, opened said hotel, under no definite arrangement but as tenants in common.

Information charging the respondent with illegally selling intoxicating liquor. Plea, not guilty; trial by jury, March Term, 1882, Veazey, J., presiding. Verdict, guilty. The case is stated in the opinion.

<p> Witness, One Party to the Contract Deceased. Ejectment. Betterments. </p> <p>1. In an action of ejectment where both the plaintiff and defendant c'aim to have derived their interest in the premises in question from the same party, (now deceased), the one as heir, and the other by contract, the defendant, under our statute, is not a witness in his own behalf, to prove that such party agreed by parol to deed the premises to him on his paying $150, and that he paid it; as this was the contract “in issue and on trial.”</p> <p>2. On motion rf the defendant the cause was remanded if a declaration for betterments was fifed under the statute.</p> <p>3. R. L. s. 1002 — witness act — construed.</p>

<p>Replevin. Avowry that the cattle were taken damage feasant in the defendant’s enclosure and duly impounded. Trial by court, March Term, 1882, Veazey, J., presiding. Judgment for the plaintiff. The facts appear in the opinion of the court.</p>

Case, under the statute to recover of the defendant what he had paid a teacher, who, it was claimed, had not obtained a legal certificate. Heard on the report of a referee, March Term, 1882, Veazey, J., presiding. Judgment for the defendant. The committee paid the teacher with orders on the district, the last one dated March 3d,1876. This action was commenced July, 1880. The other facts are stated in the opinion.

<p> Contract to sell land. Trover. Standing Timber. Conditional Sales. </p> <p>By written contract P. agreed to sell a piece of land to H., and convey when the purchase money was paid. The standing timber was to remain P.’s as security. H., without paying, cut and sold a part of the timber to J., and P. gave notice of his ownership ; thereupon, J. bought P.’s interest in theland and timber, prior to any attachment. Before J’s deed was recorded, the lumber, not having been delivered, was attached by the creditors of H. Held,</p> <p>1. That J. was the owner of the land, and by legal sequence the lumber ; and that he could follow it and assert his dominh n over it.</p> <p>2. The statute in regard to conditional sales has no application to the case. It is not . material that the deed should have been ever recorded.</p>

Case for negligence in agisting a colt. Heard on the report of a referee, March Term, 1882, Veazef, J.,.. presiding. Judgment for the defendant.

Action to recover the amount of a promissory note, and for work. Heard on the report of a referee, March Term, 1882, Veazey, J., presiding. Judgment for the plaintiffs to recover the larger sum named in the report including the note in contention.

Case for injury on a highway. Trial by jury, September Term, 1882, Veazey, J., presiding; and verdict for defendant.

Bill in Chancery. Heard on bill, answer, traverse and master’s report, March Term, 1882. Veazey, Chancellor, ordered the bill to be dismissed.

<p>i Complaint and warrant for the seizure of intoxicating liquor under sec. 3818, R. L. Clark Smith appeared before the justice and claimed the liquors. The justice adjudged the liquors forfeited. The claimant appealed to the County Court, and there demanded a trial by jury, which was denied. Heard, March Term, 1882, by the court, Veazey, J., presiding. The. case is stated in the opinion.</p> <p>The claimant is entitled to have the issue made by him tried by jury. Plimpton v. Somerset, 33 Vt. 290; R. L. s. 3850; Lincoln v. Smith, 27 Yt. 328 ; Con. Yt.; State v. Peterson, 21 Yt. 513 ; State v. Prescott, 27 Yt. 194; States. Intoxicating Liquor, Drew, Claimant, 38 Yt. 387 ; State v. Intoxicating Liquors, Kelly, Claimant, 44 Yt. 208.</p> <p>The seizure and condemnation of intoxicating liquor, is a proceeding in rem, to fix the status of property considered dangerous to the peace and good order of society, and if the proceedings are regular, they bind the whole world. Johnson v. Williams, 48 Vt. 565. After a decision of forfeiture the prior owner has no longer any interest in the liquor. Johnson v. Perhins, 48 Yt. 572; the License Case, 6 How. 504; 94 U. S. 113; Commonwealth v. Alger, 7 Cush. 84 ; 9 Rep. 180.</p>

<p>Action on the case for negligence. Plea, general issue. Trial by jury, September Term, 1881, Rutland County, Yeazey, J., presiding. Yerdict for the plaintiff to recover $5000. As to the freshet •which washed, out the culvert, causing the accident, the court charged:</p> <p>“ The company did not warrant to Davis that the culvert or road-bed should be safe. It was not bound to know of defects and to keep the culvert safe at all events. But it w'as bound to use reasonable care to discover any defects in it and to put and keep it in a safe condition.</p> <p>“ To answer this degree of care the company was not bound to provide and maintain culverts that would withstand unprecedented floods or freshets not to be naturally anticipated. If this freshet was so extraordinary as to be beyound the reasonable anticipation of prudent men having the knowledge of this brook and locality as to liability to floods, as the case shows the men had who built and had charge of this culvert, then there is no liability on the part of the defendant on account of the disastrous effect of this freshet.</p> <p>“ The defendant claims that there was no defect in fact; that reasonable care would not compel them to provide against such an extraordinary, sudden and violent freshet as this was; that the culvert was ample in size and proper in construction for any such flow of water as ordinary care would anticipate ; that this freshet was so extraordinary and unprecedented as to be what is sometimes termed an act of God, against which human foresight could not and is not called upon to provide ; that the stockade of posts or piles was designed to protect the culvert and road, and would so operate in all cases which the company was bound to expect might happen, and would not in such cases stop the flow of water. If you find this as claimed the plaintiff is not entitled to recover.</p> <p>“ You will of course have in mind the general tenor of the testimony as to the general character and nature of this freshet. There has not been any particular dispute about this. It seems that the storm begun a day or two before, and that it was afsnow storm, and that some inches of snow fell and then changed to rain and increased in violence the day of this accident; that the ground was frozen and after the rain had saturated or been taken up by this snow it suddenly gave way and filled this small brook, and the extent of this flood has been alluded to by the witnesses — that is, its effects upon that vicinity. These things you will have in mind in determining whether this was such a flood as the defendant was reasonably bound to anticipate in providing a culvert at this time. You will also bear in mind the other facts as to the nature of this culvert; the liability to sudden rise of water in the stream-let there, and the formation of the surface, the hilly character of the region, as bearing upon the question whether this was a freshet the defendant was bound to anticipate.”</p> <p>The other facts are stated in the opinion of the court.</p> <p>The jury have found that the accident was occasioned by the negligence of the section boss, the road master and bridge builder. And the case shows that these men were the servants, the employes of the company. The defendant, therefore, is not liable for the injury to plaintiff’s intestate, who was a co-employe.</p> <p>This entitles the defendant to a judgment. Hard v. Vt. Gan. B. B., 32 Yt. 473 ; Priestly v. Fowler, 3 M. & W. 1; Gallager v. Piper, 33 L. J. C. P. 335 ; Feltham v. England, Law Rep. 2 Q. B. 33 ; Mobile & Montgomery B. B. Co. v. Smith, 59 Ala. 255 ; (An exhaustive case.) McBonold v. Hazeltine, 53 Cal. 35 ; Faulkner v. Erie B’y Co., 49 Barb. 324; Wonder v. Baltimore if- Ohio B. B. Co., 32 Md. 412; Ford v. Fitchburgh B. B. Co., 110 Mass. 240 ; Holden v. Fitchburgh B. B. Co., 129 Mass. 268; Lawler v. Androscoggin B. B. Co., 63 Me. 462 , Collier v. Stein-hart, 51 Cal. 116 ; Albro v. Agawam Canal Co., 6 Cush. 75 ; Smith v. The Mayor, 66 N. Y. 295. If the company is in no fault as to the competency of servants, whether they in point of fact turn out to be competent or not, it is not liable for an injury to a servant that happens through negligence of a fellow servant. See authorities above cited.</p> <p>Notice of defects to the other servants was not notice to the defendant. Pierce Railroads, 384; Me William v. Saratoga f Wash. B. B. Go., 20 Barb. 449; Blake v. B. B. Go., 70 Me. 60.</p> <p>The company is under an obligation to its servants to use reasonable care to provide and maintain a safe road-bed, and suitable machinery, engines, cars, and other appointments of the railroad, and is liable to them for injuries resulting from defects which it knew or ought to have known, and could have prevented by the exercise of such care ; and it is under the same duty and obligation to maintain these instrumentalities in proper condition. Pierce Railroads, 370-1; Noyes v. Smith, 28 Yt. 59; Hard v. Vt. Sp Can. R. R. 32 Yt. 473 ; Camp. Negl. s. 73 ; Britton v. Great W. Cotton Co. L. R. 7 Ex. 130; 35 L; T. (N. S.) 477.</p> <p>Acts which the master as such is bound to perform for the safety and protection of his employes cannot be delegated so as to exonerate the former from liability to a servant. Cone v. B.,L. ¿> W. R. R. Co., 81 N. Y. 206; Fuller v. Jewett, 80 N. Y. 46; Kain v. Smith, lb. 458 ; Hawley v. Nor. Cen. R. R., 82 N. Y. • 370 ; Painton v. lb., 83 N. Y. 7 ; Lansing v. N. Y. R. R. Co., 49 N. Y. 521; Flihe v. B. £ A. R. R. Co., 53 N. Y. 549 ; Ford v. Fitchburg R. R., 110 Mass. 24.0 ; Snow v. Housatonic R. R., '8 Allen, 441; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Gilmans. Eastern R. R. Co., 13 Allen, 433 ; Holden v. Fitch-burgh R. R., 129 Mass. 268 ; Acherson v. Dennison, 117 Mass. 407. Hardy v. North Carolina Cen. R. jB.,'74 N. C. 734, 76 N. C. 5, holds that it is the duty of the corporation to inspect the whole road immediately after freshets and storms. Cowles v. Richmond R. R., 12 C. L. J. 546 (N. C.) ; Shanny v. Androscoggin Mills, 66 Me. 420 ; O ’Donnell v. Allegheny Valley R. R. Co., 59 Pa. St. 239.</p>

<p>' Heard on demurrer, March Term, 1881, Taft, J., presiding. Demurrer sustained. The plaintiff alleged in his declaration that the defendant “ received the plaintiff into one of its passenger cars to be by it safely and securely transported and conveyed over its said road for a certain hire and reward paid to the defendant and in consideration of the plaintiff’s sending large amounts of freight over the defendant’s said road, for which it received pay,” etc ; and that the plaintiff was injured through the negligence of the defendant. The plaintiff pleaded the general issue, and two pleas in bar. In the second it was averred that the</p> <p>“ Said plaintiff was being carried by the defendant over the line of railroad in the plaintiff’s declaration mentioned, without charge and free from expense, and in consideration thereof agreed to assume all risk of accident, and in consideration thereof further agreed that the defendant should not be liable under any circumstances for any injury to the plaintiff’s person or loss or injury to his, the plaintiff’s goods, while he, the plaintiff, was being carried over the railroad of the defendant on the occasion in the plaintiff’s declaration mentioned ; and this the said defendant is ready to verify.”</p> <p>It was averred in third plea that the</p> <p>“ Plaintiff applied at the cattle station of the Boston & Lowell railroad company for a free ticket to pass the plaintiff over the railroad of the defendant, and the station agent at such station gave to the plaintiff and the plaintiff accepted and afterwards used a ticket for which the plaintiff paid nothing, and which the defendant allowed the plaintiff to use on the day and year aforesaid, according to the contract and conditions thereon stated, to pass the plaintiff without charge, and the plaintiff did use said ticket for that purpose, to pass the plaintiff without charge over the railroad of the defendant in the plaintiff’s declaration mentioned, which ticket is substantially in the words and figures following, to wit. :</p> <p>‘BOSTON, CONCORD & MONTREAL R. R.</p> <p>This ticket will pass Mr. O. Kimball, Concord to Marshfield, without charge ; he, in consideration thereof, assuming all risk of accident, and agreeing that the corporation shall not be liable under any circumstances, for any injury to his person, or loss or injury to his goods, while using this ticket. Not good unless used within three days from date.</p> <p>(Issued by B. L. & N. R. R.) B. F. Kendrick.’</p> <p>“ And the defendant avers that the plaintiff procured and used on the day and year in the plaintiff’s declaration mentioned, a ticket as aforesaid, with a full knowledge of its contents and from choice used said ticket, and himself assumed all risk of accident or injury to his person while a passenger upon the railroad of the defendant rather than purchase a ticket, so that by the laws of this State this defendant would have been liable for the injury in the plaintiff’s declaration mentioned ; and this the said defendant is ready to verify.”</p> <p>The second plea does not amount to the general issue, as it sets up an agreement, which if valid avoids the right of recovery.</p> <p>The third plea is good.</p> <p>.What is the general issue ? It is a denial of all those facts in the declaration upon which the right of recovery depends. What are they in this case ? 1st, that the plaintiff has suffered damage ; 2d, that it was caused by the negligence of the defendant; 3d, that the defendants were common carriers for hire and that plaintiff was being carrried for hire, whereby it was its duty not to be negligent. The general issue denies. Now if what the plaintiff declares is true, the pleas deny only one of these facts, that is that the plaintiff was being carried for hire. Then it does not amount to the general issue. It amounts only to a special issue. Gould Pl., c. 2, ss. 38, 40; Gould Pl., c. 6, ss. 60, 61, 62; Button v. Vt. M. F. Ins, Co., 17 Vt. 369; Williams v. Vt. M. F. Ins. Co., 20 Vt. 222.</p> <p>The defendant’s second and third pleas only amount to the general issue, and are therefore bad.</p>

Assumpsit with general and special counts to recover upon a contract of life insurance. Plea, general issue, and trial by jury, September Term, 1879, Washington County, Redfield, J., presiding. The policy was dated July 24th, 1875.

General assumpsit. Heard on the report of a referee, September Term, 1879, Rutland County, Dunton, J., presiding. Held: and took the Rutland Daily Herald in which the proceedings of said meetings and the substance of the annual reports to the stockholders were published.” “ May 4, 1872, at a regular meeting of the directors of the defendant, it was ‘ Voted, That scrip be issued in payment of the dividend for August next upon the preferred stock of…

Assumpsit upon two policies of insurance. Trial by jury, June Term, Addison County, 1881, Pierpoint, Ch. J., presiding. Verdict for the plaintiff. The facts are sufficiently stated in the opinion of the court. The contracts provide that the keeping of gunpowder for sale or on storage upon or in the premises insured without permission granted in the policies renders them void. No permission was granted or inserted in the policies.

Case for negligence in keeping certain U. S. bonds. Plea, general issue. Trial by jury, March Term, 1881, Taft, J., presiding. Verdict for the plaintiff to recover $7,149.89. The facts in this case are sufficiently stated in the opinion of the court, and in the 50 Vt. R. 388, where this case is reported, except the following request by the defendant and charge to the jury. The defendant requested the court to charge the jury : “ 11.

Case for loss of services, &c., in consequence of injuries to the plaintiff’s wife, and for injuries to his horse and sleigh. Trial by jury, September Term,. 1880, Windham County, Veazey, J., presiding. This case is reported in the 52 Yt. R. 522. ■ In the second trial the County Court confined the plaintiff to proving the damage to the horse and sleigh.

Bill to compel the defendant to deed a piece of land, and for other relief. Heard on bill, answer, traverse and master’s report, December Term, 1879, Caledonia County. Powers, Chancellor, adjudged proforma that the bill be dismissed. The facts are sufficiently stated in the opinion.

<p>Heard on bill, answer, replication and testimony, February Term, 1881, Ross, Chancellor. Decree pro forma for the orators. The bill was brought by the selectmen of Glover and based on the following order; *</p> <p>“ State of Vermont, ) Whereas the assistant judges of Or-Orleans County, ss. ) leans county court in the state of Vermont did on the 27th day of May, 1876, appoint us, the undersigned, commissioners to examine as to the safety and sufficiency of a certain dam and reservoir situated in Glover, in said county, and commonly called ‘ Stone Pond.’ Said dam was owned by G. W. McGaffey, of said town of Glover. Now, agreeably to said commission, we the undersigned having made an examination of said dam, and heard the parties interested in and about the same, we are unanimous in the opinion that said dam is insufficient, unsafe, and dangerous, in the present condition to the property-owners on the stream below, and particularly so to the inhabitants of Glover Village. We therefore make the following order for the time being: That the said G. W. McGaffey shall immediately commence to reduce the water in said pond by raising his head-gate at his flume, not exceeding eight inches, so as to gradually reduce said pond of water down to the bottom of- his said flume by the first day of September next, and then to let said gate be up so that the water naturally coming into said pond may flow out through said flume till further order. The above order is made by the consent of all parties interested.</p> <p>Glover, June 24th, 1876.” (Signed and recorded in the towri clerk’s office.)</p> <p>The orators prayed that the defendants be compelled to comply with the foregoing order.</p>

<p>Trespass for taking a piano on which the plaintiffs had a lien. Heard, December Term, 1881, Orange County court, on the report of a referee, Powers, J., presiding. Judgment pro forma for defendant.</p> <p>The referee reported that the plaintiffs, on the 7th day of June, 1876, sold and delivered to one'Mark S. Page a piano for the price of $300 ; that they took a note for the same, payable in installments of $25 each month, and reserved a lien on the piano, as follows: “ Which said piano is to remain the property of said McPhail & Co. until the above sum of $300 is paid in full; and the said McPhail & Co. have the right to take possession of said piano at any time on failure of any of the above payments; and all payments before made to be forfeited”; that, on the 18th day of July, 1876, the note and lien were recorded in the town clerk’s office of Bradford; that on the 24th day of October, 1876, the defendant caused the piano to be attached on a writ in his favor against said Page and as said Page’s property: that several other creditors of Page also attached the piano, executions issued, and the piano duly and regularly sold thereon ; and that a considerable amount of the note was due and unpaid at the time ot the attachment, but that the plaintiffs had not taken possession of the piano, although they attempted to do so on the day it was attached. On the question of the defendant’s knowledge of the plaintiffs’ lien the referee reported:</p> <p>“Before the defendant attached the piano as aforesaid he knew from said Page that plaintiffs had a lien thereon for the purchase money; but he thought the lien was not good, because not seasonably recorded. Page did not show defendant the lien, nor did he ever see it; but he had been informed and knew that it was recorded, but he never saw the record.”</p> <p>On the hearing it appeared that the plaintiffs had taken two depositions-, one earlier than the other, of Thankful C. Page. Only one was read. The other one had never been filed, nor used in evidence, but had been opened and the plaintiffs had it at the hearing. The defendant’s counsel asked the referee to order the deposition to be produced. The referee refused to make the order.*</p> <p>Notice of the lien answers all the purposes of a record. Kelsey v. Kendall, 48 Vt. 27. In the original engrossed bill there is a comma before the words “ without notice.” ■ This punctuation leaves no doubt that the legislature intended that the words “ without notice,” should apply to both “ attaching creditors ” and “subsequent purchasers.” Bugbee v. Stevens Bagtey, 53 Vt. 389 ; Whitcomb v. Woodworth, 54 Vt. 74, 544. Alabama and Iowa have statutes similar to ours. In both notice is equivalent to a record. Magee v. Carpenter, 4 Ala. 469; Smith $ Co. v: Zuchee, 9 Ala. 208, 921; Bearing v. Watkins, 16 Ala. 20; Be- • Verdal v. Malvóme, 25 Ala. 272; Boyd v. Beck, 29 Ala. 703; Me Guvern v. Haupt, 9 Iowa, 83 ; Allen v. Me Alla, 25 Iowa, 464; Jones Chat. Mortg. ss. 31, 317 ; 47 Iowa, 418; 51 Iowa, 655; 59 Ala. 503 ; 33 Vt. 252; 12 N. H. 839 ; 13 N H. 46; 8 Vt. 373.</p> <p>The notice, in order to be sufficient, must emanate from the party holding or claiming to hold the lien. R. L. s. 1069 ; Stevens v. Wrisley, 80 Yt. 661, 665, 701; Bank v. Drury,-35 Vt. 469. The record of the lien having been made more than thirty days after the delivery of the property, had no force. Bugbee v. Stevens cf* Bagley, 53 Yt. 389; 2 Watts, 78. The words “ without notice ” refer to and grammatically limit simply the words “ subsequent purchasers,” and not the words “ attaching creditors.” The intent of the legislature must have been to so amend the statute of 1870 as to make it comply with the general law and policy of the State relating to the sale of personal property and the accompanying change of possession. Daniels v. Nelson, 41 Yt. 161; Hart v. Bank, 33 Yt. 263 ; Perrin v. Heed, 35 Yt. 2. But if creditors are affected with notice, it must be actual. 3 Yes. 478 ; 19 Yes. 435 ; 1 Mod. 300 ; 31 E. L. & Eq. 89; Jones Chat. Mortg. s. 309 ; 19 Me. 167 ; 13 Met. 200. Burden on plaintiff to show sufficient notice. Whitcomb v. Woodworth, 54 Yt. 544.</p>

<p>[In Chancery.]</p> <p>Equitable Mortgage. Court has jurisdiction to foreclose. Multifariousness. Joinder of Defendants. Levy of Execution. Judicial Notice. Recognizance for Review. Audita Querela.</p> <p>1. The Court of Chancery has jurisdiction to foreclose a mortgage in-whatever form it may exist, — as an equitable mortgage.</p> <p>2. Objection for muitifariousness must be made by demurrer.</p> <p>3. E. was properly joined as defendant, as the bill alleges that he had joined in bringing audita querela to vacate the levy of an execution, under which the orator claims title ; and this allegation is not denied by the answer.</p> <p>4. A fact charged to be within the knowledge of the defendant, and the answer silent as to it, tat en as admitted.</p> <p>5. The levy of an execution, correct, except by mistake it described the judgment as rendered by the County Court when it was rendered by the Supreme Court, is not void.</p> <p>6. The levy of an execution, claimed to be void for uncertainty, “ on one undivided 12956-21900th part'’ of an equity of redemption, “ Subject to the Burke levy” is held valid.</p> <p>7. The levy was made in 1869 ; audita querela brought to set it aside in 1877 ; if there was any error it was cured by statute, R. L. ss. 1596, 1598.</p> <p>8. An execution (levied on real estate) bears interest by statute, R. L. s. 1547.</p> <p>9. A deputy sheriff, ho'ding an original execution at the time he was removed from office, may levy on real estate an alias afterwards issued in the same suit, R. L, s. 860.</p> <p>10. A writ of audita querela brought in the County Court to vacate a record in the Supreme Court was improperly issued.</p> <p>11. The memorandum made by the justice of the recognizance for review was as follows : ‘1 The plaintiff as principal and —— as surety recognized to the defendant in the sum of $275.50 as the law requires for the said Cole’s right of a trial of the case at any lime within two years from the date of this'judgment.” The court think this is sufficient; but if not, the defendants cannot tahe advantage of the error.</p>

<p> Impounding Cattle. </p> <p>1. When one without force or fraud has taken another’s cattle in his own enclosure and is proceeding to impound them, the owner cannot lawfully “ fight himself” into legal possession, and thereby rescue them, but he must resort to the law; and this is so although the impounding is without right.</p> <p>2. R. L. s. 3998, rescuing beast being impounded, construed.</p>

<p> Bankruptcy. Discharge when does not affect a Foreign Creditor. Debt discharged, how revived. </p> <p>1. A clear, distinct, and unequivocal promise to pay is essential to a reviva' of a debt barred by a discharge in bankruptcy.</p> <p>2. A debt contracted and payable in Canada by a person resident in this State to a person resident in Canada is not barred by a discharge tinder the U. S. bankrupt act, when the foreign creditor neither proved his debt in bankruptcy, though provable under the act, nor in any way was a party to the proceedings nor had personal notice thereof.</p>

<p>Heard on demurrer to the bill, May Term, 1880, Windsor County, Barrett, Chancellor. Demurrer sustained and bill dismissed. The facts are stated in the opinion of the court, except the orator in his brief, if the decision of the court was against him, asked leave to amend his bill, by stating that the conveyance of the equity to him was by quit-claim deed in common form; that he had no interest in the farm, and that he held the same in trust for the benefit of a fifth mortgagee.</p> <p>The principle is well settled that if a subsequent incumbrancer or one who has acquired a legal or equitable interest in mortgaged premises, pays off a prior incumbrance in order to protect or preserve his interest in the premises, such payment will operate as an assignment of such prior mortgage, and the person so paying can keep it alive and set it up as against intervening incumbrances. Millspaugh v. McBride, 7 Paige, 509 ; Card v. Putmon, 7 Me. 102 : Thompson v. Chandler, 7 Me. 377 ; Pool v. Hathaway, 22 Me. 85 ; Gibson v. Crehore, 3 Pick, 475 ; s. c. 5 Pick. 146 ; James v. Morey, 2 Cow. 284 ; 1 Jones Mort. 869 ; Downer v. Wilson, 33 Yt. 1; Payne v. Hathaway, 3 Yt. 212 ; Walker v. King, 44 Yt. 601; s. c.’ 45 Yt. 525 ; Spaulding v. Crane, 46 Yt. 292.</p> <p>The orator was the owner of the homestead interest; and as such owner he had all the rights therein vested in his grantors. The homestead was surety for the first mortgage debt to defendants. The wife’s right to all the rights of suretyship is unquestioned. But a surety is entitled to be subrogated to the rights of the creditor. Stevens v. Gould, 26 Yt. 676 ; Jhons v. Reardon, 11 Md. 465 ; Ayers v. Husted, 15 Conn. 504 ; 1 Lead. Cas. Eq. 158; Stevens v. Goodenough, 26 Yt. 685 ; Lamb v. Mason, 45 Yt. 500.</p> <p>The orator can stand on the Cardell mortgage. Bullard v. Leach, 27 Yt. 491; Wilsons. Burton, 52 Yt.. 394; Black v. Gorman, 5 Serg. & R. 36; Johnson v. Harden Avery, 45 Iowa, 680 ; Belmont v. Coman, 22 N. Y. 438 ; Trotter v. Hughes, 12 N. Y. 80 ; Tainter v. Hemingway, 22 N. Y. 458.</p> <p>The orator voluntarily purchased of Steele his equity of redemption, subject to all the incumbrances. He thus assumed all the liabilities and sustained the same relation to the several mortgages that the mortgagor did. It thus became his duty to pay them ; and whenever he made a payment of one, it thereby became extinguished and relieved the estate of so much of the burden resting upon it. 1 Wash. Real Pr. 563, 567; Devereaux Me-serve v. Fairbanks, 52 Yt. 587 ; McDaniels v. Lapham, 21 Yt. 222 ; Popkin v. Bumstead, 8 Mass. 491; Marsh v. Pike, 10 Paige, 595 ; Townsend v. Ward, 27 Conn. 610 ; Thompson v. Thompson, 4 Ohio, 333 ; Warring v. Ward, 7 Vesey, 331; .Russell v. Piston, 7 N. Y. 171.</p> <p>The presumption is that he assumed the mortgage debts. 1 Hilliard Mort. ,343, 357; 2 Story Eq. s. 1248 ; Halsey v. Reed, 9 Paige, 445 , Leehmere v. Charlton, 15 Ves. 193 ; Russell v. Piston, 7 N. Y. 171; Blyer v. Monholland, 2 Sandf. Ch. 478 ; 2 Lead. Cas. Eq. 97, 230 ; Baton v. Simonds, 14 Pick. 492 ; 1 .Jones Mort. ss. 858, 864 ; Q-ill v. Lyon,l Johns. Ch. 446 ; Russell v. Kinney, 1 Sandf. Ch. 34.</p>

<p>[In Chancery.]</p> <p> Mortgage. Foreclosure. Railroad. Eminent Domain. </p> <p>1. A railroad company by a warrantee deed from a mortgagor of iands for raürtad purposes takes only the right and title of the mortgagor, the mortgagee being ignorant of the transaction; and in a foreclosure proceeding the company can make only the same defence that the mortgagor could.</p> <p>2. And this is so although the railroad couid have taken the land under the exercise of the right of eminent domain.</p> <p>3. And, although the mortgagor paid the consideration received for the deeds to the mortgagee.</p> <p>4. R. L. ss. 3367, 3369, when the owner of lands condemned for railroad purposes is unknown, construed.</p>

<p> Costs. </p> <p>1. Costs cannot be taxed against a respondent for witnesses summoned against him before the twenty-four hours allowed him by statute to plead have expired.</p> <p>2. R. L. s. 1641, time allowed respondents to plead, construed.</p>

Lydia Cook, a pauper. Pleas, that the pauper had no lawful settlement in the defendant town ; and that she was unduly removed. Heard on the report of a referee, June Term, 1882, Caledonia County, Ross, J., presiding. Judgment for defendant. The facts are stated in the opinion.

<p>[In Chancery.]</p> <p>Master’s Report Recommitted, but Master dies before further Proceedings.</p> <p>1. The case was referred to a special master under the statute, R. L. s. 724; a report was made, exceptions taken, the case recommitted for further findings; but before there were other .proceedings the master died; and the chancellor then overruled the exceptions, and, without noticing the order to recommit, rendered a decree. Held, error; that there was nothing for the chancellor to act upon.</p> <p>2. Special masters, in the finding of facts, are substituted for the court; and their findings, upon legal evidence, are .conclusive. They arenotrequired to embody iu their report, or return,, with it, any of the evidence, unless required to do so in the order appointing them, any further than may be necessary to present the legal questions. †</p> <p>3. R. L. s. 724, special masters in chancery, construed.</p>

<p> Obstructing Highway. Evidence. Practice. </p> <p>1. The defendant railroad is liable for injuries sustained by the plaintiff while travelling on a highway, which injuries were caused by its leaving obstructions on the margin of the highway, though it had never been surveyed, but had been used by the travelling public more than twenty years. A highway by dedica- • tion may have a margin. ■</p> <p>2. If it is claimed that there was no evidence to support the finding of the jury, the question should be presented in the County Court and before judgment on the verdict.</p> <p>3. On cross-examination one of the plaintiff's witnesses testified tljat he with another man, at the request of the defendant’s wood-agent, went to see the plaintiff, to ascertain what he would settle his claim for, and reported his terms to said agent. The agent was then called and denied the conversation, and also said that he had no authority to request anyone to see the plaintiff ; and, on cross-examination, that he did not assume such authority. The plaintiff was then allowed to show that at said interview the wood-agent gave them to understand , that he represented the defendant. Held, no error.</p>

<p> Agent. Evidence. Fraud. Change of Possession. Witness Pumb. </p> <p>1. The property in dispute having been purchased by D. of the assignee of his own insolvent estate, the question being whether the plaintiff or D., the execution debtor, was the owner, and this turning on the question whether D. bought it for himself or as the plaintiff’s agent, the assignee and his attorney were witnesses, and what D at the time of the sale did, or said, or failed to say, as to his agency, was evidence in chief.</p> <p>2. Also, all the actings and doings of the parties with the property, both before and after it was replevied, and its avails, are admissible as evidence, the goods being in the possession of the former owner, and it being claimed that the sale to the plaintiff was fraudulent as to creditors, — that it was a sale to D. personally, and not as the agent of the plaintiff.</p> <p>3. After the purchase of the goods the plaintiff furnished D. three hundred dollars, which were used to buy new goods to keep up the stock. In about a month D. paid the plaintiff three hundred and fifty dollars and took this writing: ‘‘Received of Wm. Doran three hundred and fifty dollars cash, loaned to purchase goods.” The plaintiff claimed that a part óf the goods purchased with this money was included in his attachment. Held, that the receipt was prima facie evidence that the money was loaned.</p> <p>i. It was material to distinguish between the goods first purchased by D. of the assignee and what was subsequently bought in market to keep up the stock. The testimony of the parties who inventoried the goods after the attachment, who had long experience in the same branch of trade, as to, particular marks and figures on the bills, which were in accord with the general custom of the trade, by which they identified certain goods of the last lot, was admissible.</p> <p>8. The plaintiff was a legal witness, though dumb, uneducated in the use of signs, and only able to assent or dissent in answer to a direct question by a nod or shake of the head; but the disability detracts from the weight of the testimony, and the jury should have¿been so instructed.</p>

Trespass and trover for a quantity of hay. Trial by court, December Term, 1881, Caledonia County, Ross, J., presiding. Judgment for plaintiff.

<p>Assumpsit. Heard on the report of a referee, December Term, 1881, Caledonia County, Ross, J., presiding. Judgment for the defendant. No pleadings in writing had been filed in the case ; but the defendant’s attorney announced to the referee that he should try the case on the plea of non-assumpsit, and a former adjudication. The defendant duly excepted to receiving any evidence in regard to the latter, as it had not been pleaded in writing; but the referee received it. It appeared that the defendant sold to the plaintiff a quantity of lumber; that Mr. Cahoon, claiming to be its owner, brought an action of trover against plaintiff and recovered a judgment at the December Term, 1876, Caledonia County court, amounting to the sum of 1182.02, September, 1877 ; that the plaintiff had never paid this judgment except by giving his note therefor, dated February 21, 1880 ; that he paid to witnesses in that suit $18.20; to attorneys for services $83.00; and that he charged for his own trouble $26.00.</p> <p>■The referee found:</p> <p>“ At the time Cahoon took the plaintiff’s note in settlement of his execution against him, he also took from the plaintiff an assignment of his claim against the defendant, so that this suit is prosecuted for the benefit of said Cahoon to the extent of Cahoon’s claim or the amount of the plaintiff’s note to him. The plaintiff was allowed, against the defendant’s exception, to give evidence tending to show that at the time he purchased the cedar timber from the defendant the-defendant agreed to indemnify him against all loss that should arise by reason of Cahoon’s claiming the same. The defendant excepted to this evidence on the ground that by the lien note, the contract as to the sale of the timber had been so reduced to writing that parol evidence was not admissible to add thereto or to vary the contract as expressed by the note. The referee received such testimony against such exception. If such testimony was properly received, then I find that the defendant, at the time of the sale of the cedar timber, and as a part of the contract, did agree to indemnify the plaintiff against any claim that others might make successfully to the timber. . . . September 22, 1877, the plaintiff and defendant agreed to and did arbitrate all matters of difference between them before Jesse Marshall, Marshall W. Stoddard and George W. Woodruff. A full hearing of their matters of difference was had, George W. Cahoon, Esq., appearing for the plaintiff, and H. C. Belden, Esq., for the defendant. The result was an award in favor of the defendant for $21.72, as appears by the award which accompanies this report. The plaintiff introduced before the arbitrators, as specifications of his claims, exhibits marked Nos. 3, 4 and 5, and the- Cahoon execution. The Cahoon execution had not then been paid. The defendant introduced before the arbitrators, as specifications of his claims, exhibits marked Nos. 1, 2 and 6. Testimony was introduced as to what the contract was by which the defendant sold the cedar timber to the plaintiff, the plaintiff’s testimony tending to show that by the terms of the sale the defendant agreed to indemnify the plaintiff against other claims to the timber, and the defendant’s tending to show that no such indemnity was made or agreed upon. The defendant’s counsel then claimed that the indemnity was not proved, and that the defendant, unless a special indemnity was proved, would not be liable for any of the costs and expenses of the Cahoon suit against the plaintiff, but that as the defendant’s title to the cedar timber had failed, the defendant could not recover on his lien note, and that the plaintiff would be entitled to recover back what he had actually paid the defendant towards the same ; and that in any event the plaintiff could not recover for the amount of the Cahoon execution, because he had not paid the same. That hearing resulted, as nearly as can now be ascertained, so far as regards the claims here at issue are concerned, in the arbitrators’ allowing the plaintiff twenty-five dollars for the old horse he had delivered the defendant in.part payment towards the .cedar timber, and in their rejecting the lien note presented by the defendant and the claims made by the plaintiff for what he paid witnesses in the Cahoon suit and for Cahoon’s claim on his execution against the plaintiff. They also rejected the defendant’s claim for witness fees in the Cahoon suit, and also the plaintiff’s claim for damages for being arrested in the Cahoon suit. The arbitrators could not recall definitely what their reasons were for their action, but in general said that they threw out these claims as not established, and that they considered the Cahoon suit as between Cahoon and the plaintiff and not as a matter properly between the plaintiff and defendant. The plaintiff paid the award to the defendant. On these facts it. is apparent that the plaintiff has received back all that he has ever paid the defendant towards the cedar timber.</p> <p>Evidence to support the oral plea of a “ former adjudication” was improperly received. Fulton v. Wiley, 32 Yt. 763 ; Cook v. Carpenter,-34 Yt. 126; Sumner v. Brown, 34 Yt. 197. It was proper to call the arbitrators to testify in this case as to what matters were adjudicated at the arbitration. The eighty dollars in plaintiff’s present account had not then been paid. Post v. Smilie, 48 Yt. 191; 17 Yt. 419 ; Freeman Judg. 297. It was competent to show what the award was made up of. 47 Yt. 9 ; lb. 524 ; 35 Yt. 231. The award will only bar what is adjudged. Briggs v, Brewster, 23 Yt. 100 ; Robinson v. Morse, 29 Yt. 408, 463 ; Buck v. Buck, 2 Yt. 417.</p> <p>On a general reference the merits of the case are to be tried. Carter v. Howard, 39 Yt. 108. The award was absolutely final. Young v. Kinney, 48 Vt. 22 ; Soper v. Frank, 47 Yt. 368 ; Lamphire v. Cowan, 39 Yt. 426 ; Rixford v. .Nye, 20 Yt.,132 ; 27 Yt. 130-7 ; Morse Arb. v. Award, 487. The plaintiff could not divide his claims; he is estopped by the award. 18 Yt. 252 ; 46 Yt. 135 ; 125 Mass. 331; 119 Mass. 473.</p>

<p>[In Chancery.]</p> <p> Railroad. Partnership. Greditors. Gross-Bill. Levy on JSngine. </p> <p>The defendant railroad and the orators under a partnership arrangement were operating the three lines of road. Defendant B. obtained a judgment against the defendant rai’road for injuries received through its neglect, not knowing of the partnership. He levied his execution on an engine, tender and baggage car, owned by the three companies, and the same were sold t) his agent, L. ; and he had also levied upon another engine owned by the same companies, and had advertised it for sale, when he was enjoined. A bill having been brought, setting up the superior rights of partnership creditors, Held,</p> <p>1. Although the rights of partnership creditors, as a rule in equity, are superior to those of the individual creditors, yet the court will not enjoin, where equities are equal ; or, where, as in this case, it does not clearly appear by ailegagation or proof, that the partnership indebtedness existed at the time the property was seized on execution; or, especially, under the special provisions of our_statute. R. L. s. 3443, whereby a passengpr, injured through the negligence of a railroad company, has a right in attaching cars, engines, &c., superior to the general equity of the partners.</p> <p>2. Bill in the nature of a cross-hill. It is decreed that the orator in the cross-bill, defendant B., obtained a va'id lien on one third of the engine levied on ;</p> <p>3. But no decree could be made as to the property sold to L., unless he were made a party ; and the validity of that sale would seem wholly a matter of law.</p> <p>4. The priority of right or partnership creditors exists only in equity, not in law.</p> <p>5. R. L. s. 3443, property held for injuries on railroad, construed.</p>

<p>Bill in chancery. Heard on demurrer, June Term, 1882, Caledonia County. Ross, Chancellor, dismissed the bill. The bill, among other things, alleged:</p> <p>“ The orator further says that between the making of said will and said codicil he (the orator) had been guilty of conduct which had not been pleasing to his father (the testator) ; and that in making said codicil the testator did not intend to cut off said legacies given in the will to the orator, but merely to have the same held in trust till the conduct of the orator was worthy. The orator says that before his father’s death and ever since he has conducted himself as became a dutiful son and respectable citizen, and has in every way endeavored to atone for the conduct aforesaid which had so displeased his father (the testator), and that since his father’s death he has endeavored to conduct himself so as to merit the approval of the said Delos M., the trustee. And the orator says he believes that he has merited, by his conduct, the approbation of respectable citizens and neighbors ever since his father’s death, and that under and by virtue of the provisions of said will and codicil of said testator he has become entitled to have his share of said estate delivered up to him, the orator, by said Delos M. Bacon, trustee; that in any event he is entitled to his share of said land thus given him in the original will; but the said Delos M. has taken the rents and profits of said land and claims that said land belongs to said estate and that none of it belongs to the orator. Tour orator further says that he has repeatedly applied to said Delos M. and has,asked him to deliver to him, the orator, his share of said estate ; and has asked the said Delos in what respect he had proved himself unworthy to receive the delivery of said legacies ; but the said Delos declines to state in what respect the orator has proved himself unworthy ; nor does the said Delos state or claim that the orator has in any respect proved himself unworthy of receiving said legacies, but declares that he, the said Delos M., is the solé judge of that matter and that if the orator gets any part of the same it will be by legal proceedings.”</p> <p>Part of the will:</p> <p>“ I give, devise and dispose of all my estate, real and personal, save what may be necessary for the payment of my just' debts and funeral charges, in the following manner : . . . I also give to my said wife one half the remainder of my estate, real and personal, to be and remain her property during her natural life. And it is further my will that all of said property at the decease of my said wife, shall be and remain the property of my two sons, Jerome C. Bacon and Delos M. Bacon, and their heirs, and if either of my said sons shall leave no issue, then it is my will that the wife of said son shall receive the proportion belonging to said son, meaning hereby that such wife shall hold the same during her life and at her decease the same shall revert to the issue of such son as shall leave issue. ... I also give said Jerome my violin, and my half of the land we own in company. . . . I give the remainder of my estate to my said sons, Jerome C. and Delos M., to be by them divided equally.”</p> <p>The other facts are stated in the opinion.</p> <p>The will and codicil are to be interpreted as one instrument. 1 Redf. Wills, 288. Words in the. will are to have the same construction throughout the instrument. Mliot v. Carter, 12 Pick. 436.</p> <p>The codicil revoked the legacies, but not the devises. Malcom v. Samej 3 Cush. 472 ; Rail v. Chaffee, 14 N. H. 218; Cooper v. Pogue, 92 Penn. St. 254 ; s. c. 37 Am. Rep. 681; Osgood v. Lovering, 33 Me. 464 ; Putnam v. Society, 37 Yt. 271 •; Decrow v. Moody, 73 Me. 100. This codicil created an express and positive trust, and under it Delos is bound to keep the legacies a reasonable time — if not during the orator’s life — until Jerome can prove himself worthy; and he is bound also to exercise a fair, honest judgment as to the orator’s conduct, and to deliver the legacies when the orator is worthy. Bohn v. Barrett, 11 Rep. 839 ; Hamilton v. Downs, 33 Conn. 211; McKenzie’s Appeal, 41 Conn. 607 ; s. c. 19 Am. Rep. 525 ; Dunning v. VanDeusen, 47 Ind. 423 ; Williams v. Worthington, 47 Md. 572 ; s. c. 33 Am. Rep. 286 ; 1 Perry Trusts, é. 4 ; 31 Am. Rep. 612; 68 Me. 34 ; 4 Gray, 236. A court of equity in such a case as this will interfere to compel an honest execution of the trust. The authorities are abundant that the court of equity will interfere with the discretion reposed in the trustee by the testator in case that discretion is unfair, dishonest or corrupt. Woods v. Woods, 1 My. & 0. 401; Constahodie v. Constabodie, 6 Hare, 410; 2 Lead. Cas. Eq. 1856 ; Perry Trusts, ss. 511-519, 520 ; Baton v. Smith, 2 Beav. 236 ; Brown v. Riggs, 4 Yes. 708 ; Marker v. Marker, 9 Hare, 1; Clark v. Parker, 19 Yes. 1; 1 Perry Trusts, s. 117, n. 1; 2 lb. s. 509, et seq.; 2 Redf. Wills, 415, 420, 429.</p> <p>• The will and codicil make Delos M. Bacon the sole judge of the time he considers Jerome C. Bacon worthy of receiving the legacy. 1 Lead. Cas. Eq. pp. 15,16 ; West v. Solmesdale, 4 L. R. H. L. 543 ; Magrath v. Morehead, 12 L. R. Eq. 491; Says v. Davenport, 25 Yt. 109 ; Saddelsey v. Adams, 22 Beav. 276. The testator did not intend to create any special or express trust that could be enforced at the hands of the cestui que trust through the aid of a court or by any other instrumentality, but to place the property in the defendant’s hands, to give some of it to the orator, if the defendant thought best; but to appropriate it all to his own use if he thought best, making him, by the terms of the will, the sole tribunal to determine the propriety of bestowing any part of the property upon the orator. Story Eq. s. 1070; Van Amee v. Jackson, 35 Yt. 177; Lyman v. Parsons, 26 Conn. 517. The will, thus construed according to the intent of the testator, bestows upon the defendant a power in distinction from a trust. 1 Perry Trusts, p. 321, s. 3. Trusts are always imperative, and are obligatory upon the conscience of the party entrusted. The court supplies the defective execution of powers ; but never the non execution of them, for they are meant to be optional. Perfe v. Am. Board, 53 Yt. 170 ; G-reenough v. WeUes, 10 Cush. 576 ; Gibbs v. Marsh, 2 Met. 251. The title of the defendant being that of a donee of a power, no court has authority to compel him to exercise it in favor of the orator. Story Eq. s. 169 ; Perry Trusts, ss. 254, 511; Gibbs r. Shepard, 125 Mass. 543 ; Bull v. Veasey, 1 Yes. Jr. 271; Leavitt v. Bierne, 21. Conn. 1; Boy v. Master, 6 Sim. 568 ; 1 Jarman Wills (5th ed.), pp. 388, 403. The demurrer should stand, because the estate was unsettled. Adams v. Adams, 22 Yt. 50; Boyden v. Ward, 38 Yt. 628 ; Rob. Dig. p. 131, ss. 47, 49 ; Probate Court v. Kimball, 42 Yt. 323.</p>

<p>[In Chancery.]</p> <p> Married Woman. </p> <p>The oratrhc owned real estate covered by mortgige, with a decree of foreclosure pending. She and her husband deeded it to two of the defendants, with an agreement with the husband atone, that they were to pay the decree, and when the property was sold the proceeds were to be applied to pay the amount of the decree, to pay for the care and management of the property, and an indebtedness due from the husband to oné of the defendants. The wife did not know what contract had been made with the defendants except as she was informed by her husband, who procured the deed to be executed and delivered it. She entrusted him with her title deed, and understood that whatever arrangement was to be made with the defendants in relation to the property was to be made by him. Held, that the proceeds of the real estate should be applied in accordance with the husband’s contract; that the rule applies that where one of two innocent parties must suffer by the fraud of a third, he who has reposed a trust in the fraudulent agent ought to bear the loss.</p>

<p>Trespass for assault and battery. Pleas: 1st, general issue ; 2d, son assault demesne; 3d, defence of the defendant’s possession. Trial by jury, December Term, Orange County, Powers, J., presiding. Verdict for the defendant.</p> <p>The third plea set forth that the plaintiff’s horse was wrongfully in and upon the defendant’s land doing damage, &c.; that the defendant requested the plaintiff to take away and remove the horse ; that the plaintiff refused so to do; that the said beating of the horse, &c., was done in defence of his said land, in order to remove said horse, doing no unnecessary damage. Replication to the second and third pleas de injuria, without justification under a search warrant.</p> <p>On trial the plaintiff’s evidence tended to show that five turkeys had been stolen from his barn on the night before the 23d of August, 1880 ; that the plaintiff had reason to believe and did believe that the defendant had stolen them; that he procured a search warrant in due form of law, and put it into the hands of a sheriff to serve; that the sheriff took the plaintiff and his two daughters with him to identify the property if found, and went to the defendant’s house; that the defendant upon their arrival invited the plaintiff and his daughters into the house ; that plaintiff did not go in, but hitched his horse to the fence near the house ; that the sheriff informed the defendant what his business was, and at this he became enraged at the plaintiff, and used violent language towards him; that the sheriff, plaintiff and defendant went in company to the defendant’s barn yard, and then the defendant refused to allow the plaintiff to aid in searching his barn with the officer. Upon this the plaintiff inquired of the officer if he had not a right to be there to identify his property. The officer then told him to go back to his team. He did so; and in about thirty minutes the defendant and sheriff went down where the plaintiff was, and immediately the defendant caught hold of the plaintiff’s shoulder, twitched him around, and threw him down upon the ground. At this time the defendant’s wife came out of the house, took hold of her husband and told him not to hurt the plaintiff. Whereupon the defendant told him to leave his premises ; and the plaintiff replied that he would as soon as he could ; and he immediately started for his horse, unhitched it, and he and his daughters got into the wagon, and were going away, when the defendant caught hold of the horse, kicked it, and struck it over the back several times with a board. The defendant’s evidence tended to show that he ordered the plaintiff away from his premises before he went to the barn, and to contradict the plaintiff’s testimony.</p> <p>The plaintiff offered said search warrant and officer’s return; to the admission of which the defendant objected, on the ground that the plaintiff did not plead it in justification ; and the court excluded it. The plaintiff requested the court to charge the jury, that if they found that when the defendant ordered the plaintiff to leave, and he was using all reasonable diligence to leave, and had got into his wagon with his daughters, and was going away, and the defendant, while the plaintiff was in the wagon and in the act of leaving the defendant’s premises, did-strike the plaintiff’s horse, as plaintiff’s testimony tended to show, this would be an assault upon the plaintiff, for which he would be entitled to recover. The court refused so to charge; but did charge that beating the horse was an aggravation of the assault upon the plaintiff, if he was assaulted ; but as an independent act, it was not a personal assault for which alone recovery could be had ; that under the declaration recovery could be had for beating the horse only in case the jury found the plaintiff was personally assaulted.</p> <p>The court erred in charging the jury. Striking the horse was an assault. Hilliard Torts (4th Ed.), 192. Striking one’s cane while in his hand is an assault. 3 C. & P. 373 ; 1 Dali. 123 ; 1 Hill (N. Y.), 46.</p> <p>The search warrant under the pleadings not admissible. 52 Yt. 645 ; 47 Yt. 717; 2 Win. Bl. 1165 ; 5 Cow. 181; 12 Mass. 505. Striking the horse not an assault. 22 Barb. 94 ; 43 Ind. 146.</p>

Bill in chancery. Heard on bill, answers and testimony, September Term, 1881, Franklin County. Royce, Chancellor, decreed a foreclosure and that the injunction be made perpetual. The defendants filed separate answers. The said Eunice is the wife of said Hiram J. Her claim against the orator and the purpose of the bill are stated in the opinion.

<p>Trespass. Trial by jury, April Term, 1881, Lamoille County, Powers, J., presiding. Verdict for the plaintiff.</p> <p>The plaintiff offered in evidence a deed from Baxter Whitney to Lncretia Perkins, dated August 19, A. D. 1865, and gave evidence to show that the premises conveyed by said deed consisted of about twenty acres of land, and a barn thereon, and that there was no dwelling house on the premises ; that she was the wife of Zacheus Perkins; that she and her husband lived on a piece of land near and adjoining the twenty acres; that her husband carried on said twenty acres of land, and used said barn for the purpose of keeping his cattle, hay and grain therein, from the date of said deed until some time in March, 1880; that her husband died in March, 1880 ; that at the time of his death he resided on said piece of land adjoining said twenty acres and kept his cattle and hay in said barn; that after the death of her husband she continued to reside on said land adjoining said twenty acres of land and to keep said cattle and hay in said barn until the 10th day of April, 1880; that on said 10th day of April, when there was no person or persons in said barn, the defendant went to said barn and commenced to throw a pile of manure out of the stable in said barn; that she went to the barn and told the defendant to stop throwing said manure out, and he refused to do so ; that she then went out and sent for her son, and while she was gone the defendant turned said cattle out of said barn ; that her . son came and requested the defendant to stop throwing said manure out; that defendant requested her son to leave the barn and he neglected so to do. The defendant then took hold of her son and threatened to put him out; that she took hold of her son for the purpose of separating them, and that the defendant then struck her ; that defendant requested her to leave the barn, and she neglected so. to do; that she took hold of a pin to hold on to so as to prevent the defendant from removing her from said barn, and that the defendant then struck her on her arm, bit her finger and pushed her out of the barn, and she claimed to recover in this action for injuries received by said striking, <fec.</p> <p>The defendant offered in evidence a warranty deed of said twenty acres of land and barn from the plaintiff and her said husband to William G. Bassett, dated June 8th, 1878, and a warranty deed of the said premises from said Bassett to Marietta West, wife of the defendant, dated January 24, 1880 ; that he and his wife lived on a farm adjoining said twenty acres, and that he had children living, and that said Marietta West was the mother of his said children, and gave evidence tending to show that on the 10th day of .April, 1880, by the direction and approval of his said wife, he went to said barn for the purpose of throwing the manure out' of said stable and making room in said stable to put his oxen therein ; that while he was so doing, the plaintiff came to the barn and requested him not to throw said manure out, and then left the stable ; that while she was gone, for the purpose of convenience in throwing said manure out. he turned said cattle out of the stable, and proceeded to throw said manure out; that while he was so doing, the plaintiff’s son, Elbridge Perkins, came into the stable, and struck him with a piece of board across his hips, and threatened to strike him with a milking stool; that the defendant requested said Elbridge to leave the stable, and told him if he did not leave he should put him out; that said Elbridge refused to leave and he took hold of him for the purpose of removing him from said stable ; that while he was so doing the plaintiff bit and scratched him ánd pulled his hair and beard; that he did not at any time strike or lay hands upon the plaintiff, and claims that he was entitled to the possession of said barn on account of being the husband of. said Marietta West, and her directing him to go to said barn for the purpose aforesaid ; that he had taken peaceable possession of said barn and had’the right to defend that possession and put the plaintiff and her son out of said barn.</p> <p>The plaintiff then called E. G. White, town clerk for the town of Eden, who testified that he made said deed from the plaintiff and her husband to said Bassett.</p> <p>The plaintiff then offered to show by said White that at the time said deed was executed said Bassett agreed with the plaintiff’s husband that he would deed said twenty acres of land to her said husband, provided her said husband paid to him a certain note that was secured by a mortgage on said premises within five years, and pay the interest thereon on or before the same should fall due, paid all'taxes thereon and carry on said premises in a good husbandlike manner; that her said husband and Bassett requested said White to make a memorandum of said trade, and that he, White, wrote the same down in his memorandum book. Said writing in said White’s book, was not signed by any person, and the plaintiff also offered the memorandum made by said White in evidence. The defendant objected to the admission of said evidence of White and to the admission of said nlemorandum. The court admitted all of said evidence, to which the defendant excepted. It appeared that the defendant knew that the plaintiff and her husband had been in possession of said premises as aforesaid.</p> <p>The defendant established his right to the possession of the barn by the deed, and on this showing he was entitled to a verdict unless the plaintiff showed a better right to the possession. This she could not do except by a contract for the sale of the barn that was not in writing. The court permitted her to show this contract by parol evidence, and thereby .to recover, when she could not have recovered without such contract being shown.</p> <p>This was permitting her to recover upon a contract for the sale of real estate that was not in writing. R. L. s. 981; Buck v. Picknell, 27 Yt. 157 ; Carrington v. Roods, 2 M. & W. 247; Bullard v. Bond, 32 Yt. 355 ; Hubbard v. Whitney, 13 Yt. 21.</p> <p>The memorandum was not signed, and the town clerk had no authority in writing, as is required by the statute of frauds, to sign the same, and did not sign it, and it was error to receive it as evidence. The defendant had the right to take peaceable possession of the barn, as he did, and his possession was lawful. Massey v. Scott, 32 Yt. 82 ; Puller v. Pddy, 49 Yt. 11; Wilson v. Hooker f Downer, 13 Yt. 653 ; Lull v. Matthews, 19 Yt. 322.</p> <p>Parol evidence was admissible to prove that the deed absolute in terms was in fact a mortgage. Wright v. Batee, 13 Vt. 341; Newton v. Bay, 10 Allen, 505 ; Hills v. Loomis, 42 Vt. 562; Campbell v. Dearborn, 109 Mass. 130; Rich v. Doane, 35 Vt. 125; 9 Vt. 276 ; 6 Vt. 448; 37 Vt. 169; 19 Vt. 19 ; 25 Vt. 273 ; 15 Vt. 764; 34 Vt. 166 ; 5 Pick. 181. Lord Hardwick said in Wallcer v. Walker, 2 Atk. 98, “ that such evidence had nothing to do with the Statute of Frauds.” Bussell v. Southard, 12 How. 139.</p>

Bill of foreclosure with a prayer to redeem prior mortgages. Heard on a master’s report, March Term, 1881. Redfield, Chancellor, decreed that the orator should' pay, as a prior incumbrance, the Mann decree, paid by J. J. Pratt, — $599.18, with interest; and that the J. J. Pratt mortgage, as against the orator was extinguished except the $100 note. Appeal by defendants.

<p>[In Chancery.]</p> <p> Attorneys. Misjoinder of Parties. Statute of Limitation not a Meritorious Defence. Demurrer. </p> <p>1. When a demurrer, alleging several causes, is sustained in some and overruled in others, a new cause may he assigned ore terms; thus, when want of equity and a misjoinder of one party are alleged, the misjoinder of other parties may he assigned orally.</p> <p>2. In a hill in equity to enjoin the prosecution of an action brought on a promissory note, the defendants, B and I., were the attorneys in said action for defendant, H., and were joined with Mm in this hill. Held, a misjoinder, as there was no claim that the attorneys aetedfraudulently.</p> <p>3. But the hill is not demurrable on the ground that it appears that the orators had a defence at law; namely, the Statute of Limitations, as it is .not a meritorious defence.</p> <p>4. The prayer of a hill to enjoin the collection of a note should he to reform the note according to the agreement of the parties, where the action has been brought against the signers personally, and the claim is that they acted as agents of a religious organization. The bill shou'd have contained a direct allegation that the orators were liable upon the note.</p> <p>5 Objection to the joinder of a party with no interest can be made only by such party, and not by one joined with him.</p> <p>6. When a bill does not merely refer to but makes a certain writ a part of the bill itself, the writ will be used in aid of a defective statement.</p>

<p> Mental Capacity. Confirmation. Presumption. </p> <p>L In an action of ejectment the question being whether the defendant’s grantor had the requisite mental capacity to deed, the court instructed the jury : “ Whether she had native business capacity enough to understand it, or whether she learned from competent sources what would be for her interest, if she got the capacity by education at the time . . . that would be enough.” “ If she had competent advice from others, so that by their explanation she was made to understand,” &c. Held, no error.</p> <p>2. The deed was executed on the second day of January, the application to the Probate Court was made on the same day for the appointment of a guardian, and he was appointed on the thirtieth.of the same month. Held, that the plaintiff was not entitled to a charge that the presumption in, favor of business capacity was changed.</p> <p>3. A guardian cannot confirm a deed made by his ward except by following the regulations prescribed by the statute, obtain a¡ license, and execute a conveyance •himself.</p> <p>i. The heirs did not confirm the deed by neglecting to act in the matter.</p> <p>5. There could be no confirmation without a knowledge of the right to have the contract set aside.</p>

Trespass for two hundred tons of hay, one hundred bushels of wheat, and five hundred bushels of oats. By consent of the parties judgment pro forma was entered for the plaintiff. The facts were agreed on as follows : November 25th, 1874, the defendant executed a legal mortgage of his farm in Ferpisburgh, in this State, to the National Life Insurance Company, to secure the payment of $11,000, expressed in promissory notes, which mortgage was duly recorded.

Heard on the report of referees, December Term, 1882, Powers, J., presiding. Judgment for'defendant. The facts are sufficiently stated in the opinion of the court, and in the report of this case, 51 Vt.

Trespass on the case for fraud in selling by the defendants and one Munson an undivided interest of ohe-twentieth in two certain mines in Nevada. Said Munson was joined as defendant; but there was a non est return of the writ as to him, and there was no appearance by him in the action. Plea, general issue. Trial by jury, December Term, 1876, Pierpoint, Ch. J., presiding ; and verdict for the plaintiff. The sale was in October, 1867.

Assumpsit. Plea, general issue. Heard on the report of a referee, June Term, 1882, Taft, J., presiding. Two cases were referred to the same referee, and he made but one report. The court rendered judgment for the defendant in each case. After the cases had passed to the Supreme Court on exceptions, the said Severance brought two petitions, one to the County Court, and one to the Supreme Court, to have the report recommitted to the referee for further findings.

Trover and trespass for a wagon. Plea, general issue, and trial by court, June Term, 1882, Taet, J., presiding. Judgment for the plaintiff to recover the value of the wagon, deducting the amount due the defendant upon the contract.

Action for libel. Plea, general issue, with special matter in defence. Trial by jury, June Term, 1881, Pierpoint, Ch. J., presiding. Verdict.for the plaintiff to recover $200 damages. The facts are stated in the opinion. It was error to admit testimony as to what witness understood was imputed to the person referred to by the article. That was a question for the jury. 8 East, 427 : 6 Term, 691.

Petition to foreclose a mortgage. Heard on demurrer, December Term, 1882. Powers, Chancellor, overruled the demurrer.

Heard, December Term, 1882, Powers, J., presiding. Order pro forma affirmed. The will was dated September 25th, 1878; the codicil, February 8th, 1881. Martha Scott was the mother of four children.

Debt on an award. Pleas, general issue and Statute of Limitations. Demurrer to the plea of said statute. Heard, June Term, 1882, Taft, J., presiding. Demurrer overruled. The award was a specialty within the meaning of R. L. s. 956. Angelí Lim. p. 90 ; Smith v. Lockwood, 7 Wend. 211; Uodgen v. Rarrindge, 2 Saund. 187 ; Pease v. Roward, 14 Johns. 480 ; Freeman Judg. 32; Smith v. Johnson, 15 East, 213; 12 N. Y. 9.

<p> Pauper. </p> <p>1. An authorized person cannot serve an order oí removal of a pauper.</p> <p>2. A special designation in a statute of the officers who may serve the process excludes all others.</p> <p>3. R. L. s. 2835, pauper, order of removal, how served, — construed.</p> <p>i. Word “may” in statute construed.</p>

Trespass. Plea, general issue. Trial by jury, December Term, 1882, Powers, J., presiding. Verdict for plaintiff. The plaintiff claimed title to the covered carriage by virtue of an oral gift from her father, and that the gift was made on the 3d day of August, 1876. The defendant claimed that her father subsequently gave and delivered the carriage to him. The plaintiff and her brother Joseph lived with, and constituted a part of, the family of their father, James Fletcher.

Petition in common form to foreclose a mortgage. Heard on petition, answer, replication, and the report of a special master, May Term, 1881. Taft, Chancellor, decreed a foreclosure. September 8th, 1851, Elisha G. Culver purchased of John Porter a farm in Hartford, and executed a mortgage thereon to secure the purchase .price, $2931.86. In May, 1871, C. T. Smith and E. A. Hatch sold to said Culver a patent right for $2400-, for which he gave his note to said Hatch.

Trespass for taking an ox. Heard on demurrer to the defendant’s plea, December Term, 1882, Taft, J., presiding. Demurrer overruled.

Assumpsit. The defendant filed his declaration on book account in offset; an auditor was appointed, and the case was heard on his report by the court, December Term, 1881, Taft, J., presiding. Judgment for the plaintiff to recover $112.40.

Assumpsit. Heard on a referee’s report, December Term, 1882, Taft, J., presiding. Judgment for the plaintiff to recover $101.26.

<p> Jurisdiction of County Court. Agent. </p> <p>1. The amount of the plaintiffs’ specification exceeded two hundred dollars, and their evidence tended to support the whole ; but the court found that they were entitled to recover less than two hundred dollars, because some of the items should have been charged to another party. This was the issue on the trial. There was no evidence of good faith in bringing the suit to the County Court, but the court found that “ there was no bad faith in the matter on the part of the plaintiffs, but they were misled by the negligent manner in which their books had been kept” by their bookkeeper. Held, that the court had jurisdiction; and that the presumption is that they acted in good faith.</p> <p>2. The rule that the knowledge of an agent is imputable to the principal has no application to this case.</p>

<p>Assumpsit. ■ Heard on demurrer to the special count in the amended declaration, December Term, 1882, Taft, J., presiding. Demurrer overruled.</p> <p>cited 12 Yt. 443 ; 20 Vt. 455 ; 52 Yt. 374; 1 Aik. 304; 14 E. C. L. 90; 3 E, C. L. 64; Chitty Bills, 66, 265, n.</p> <p>cited 41 Yt. 24; 14 Yt. 387; 20 Yt; 455; 12 Yt. 443; 1 Swift Dig. 437 ; 3 Kent Com. 78 ; 8 Conn. 431.</p>

General Assumpsit. Pleas, general issue, Statute of Limitations and set-off. Heard on the report of a referee, December • Term, 1882, Taft, J., presiding. Judgment for the defendant. One item of $ 1.50 allowed by the referee to the plaintiff was dated April 12th, 1873. The other facts appear in the opinion.

Trespass for false imprisonment, brought against the defendant and one Perrigo, since deceased. Pleas, general issue, and justification as servant of said Perrigo, an officer, in serving legal process. Replication, de injuria. Trial by jury, December Term, 1882, Taft, J., presiding. Yerdict for the plaintiff. The history of the case is given in 54th Yt. 437. The plaintiff was arrested in Windsor County, and imprisoned in the jail in Orange County.

<p>Heard on motion to dismiss the appeal, May Term, 1882, Rowell, J., presiding. Motion sustained. The case is started in the opinion.</p>

Replevin, to replevy ten cows, fourteen young cattle, two swine, one cart, one buggy, one plow, one sleigh, and one sled. Heard by the court, May Term, 1882, Rowell, J., presiding.

Trover for oxen. Plea, general issue. Trial by jury, December Term, 1882, Taft, J., presiding. Yerdict for plaintiff to recover $160. The facts are sufficiently stated in the opinion of the court, except the following: In mitigation of damages the defendants offered evidence to show that they acted in good faith; and that the identical bank bills received for the oxen were sent to the plaintiff by the conditional vendee.

Assumpsit. Heard on the report of a referee, December Term, 1882, Taft, J., presiding. Judgment for the plaintiff to recover $291.75. The judgment was made up of the price of a cider press,-$200 ; power attachment with chain belt, $45 ; interest, $34.64; and some other small .items connected with the press.

Bill in Chancery. Heard on bill, answers, replication, cross-bill, and master’s report, December Term, 1882.

Assumpsit. Plea, general issue. Trial by jury, December Term, 1882, Taft, J., presiding. Verdict ordered for the defendant. The case is stated in the opinion. A corporation has power to settle disputed claims against it. 1 Dillon Corp. s. 477 ; Bean v. Jay,.23 Me. 117; 14 111. 193; 7 Pick. 18; 9 Pick. 298; 14 Johns. 330.

Debt on a decree of the Probate Court. Heard on demurrer to the declaration, December Term, 1882, Taft, J., presiding. Demurrer overruled. • The declaration alleged that the plaintiff was administrator de bonis non of the estate of Ira Matthewson ; that on the 18th day of May, 1869, one Sylvanus 0.

Assumpsit, with two special counts and common counts. Pleas, the general issue, special pleas in bar, and notice of special matters in defence. Trial by jury, September Term, 1880, Royce, J., presiding. Verdict for the plaintiff.

Trespass with count in trover. Plea, not guilty; and trial by jury, April Term, 1882, Royce, Ch. J., presiding. Verdict ordered for the defendant. The following is a copy, in part, of the officer’s return: “ I then served this writ by attaching as the property of the within named defendant all the real estate in the town of Montgomery.

Replevin. Heard by the court on the report of a referee, September Term, 1882, Royce, Ch. J., presiding. Judgment for the defendant. The case is stated in the opinion. The cause having been referred, all questions as to form are waived. Q-ranite Qo. v. Farrar, 53 Vt. 585; Morse v. Beers, 51 Vt. 359. The husband and wife may sue jointly. Myers and Wifev. Lyon, 51 Vt. 272. The gift was valid in law.

Assumpsit on a promissory note. Plea, general issue, and trial by jury, April Term, 1882, Royce, Ch. J., presiding. Verdict for the plaintiff. Questions of evidence : The plaintiff claimed that defendant signed the note in question ; that he himself endorsed it to the St. Albans Trust Company ; that he after-wards became the owner of the note, and that it was the same as when signed by the defendant.

Appeal — by way of petition for commissioners — from the action of selectmen in resurveying a highway. Commissioners were appointed, September Term, 1881, and their report heard April Term, 1882, Royce, Ch. J., presiding. Judgment pro forma upon the report that the proceedings of the selectmen be quashed, and for the petitioners to recover their costs. The facts are stated in the opinion.

Assumpsit. Heard upon the report of a referee, September Term, 1882, Royce, Ch. J., presiding. Judgment on the report for the defendant upon his plea in offset to recover the sum of $58.12. Exceptions by plaintiff. The case is stated in the opinion of the court.

Assumpsit in five counts, four special and one-common. Heard on demurrer to the first four, and plea of non-assumpsit to the fifth count, September Term, 1882, Royce, Ch. J., presiding. Judgment pro forma for the plaintiff. Many questions were raised as to the sufficiency of the declaration; but the main contention was whether, under our statute as it stood prior to the act of 1882, No. 11, bank stock could be taken and sold by virtue of a tax warrant.

Petition to foreclose a mortgage. Heard on a special master’s report, September Term, 1882. Royce, Chancellor, decreed a foreclosure.

Assumpsit upon a promissory note. Picas, general issue, payment and offset. Trial by jury, September Term, 1882, Royce, Ch. J., presiding. Verdict for the defendant. The plaintiff introduced the note in suit and rested. The note was payable to W. A. Armstrong, or bearer. It was endorsed to the plaintiff long after it became due, and only a short time before this suit was brought. The plaintiff is father of said W. A. Armstrong.

<p>Res Judicata. Appeal. Presumption></p> <p>1. A plea of former judgment must show that the subject-matter of the present, is the same as that of the previous, litigation ; thus, in the first acti -nthe question was whether an appeal from the Probate Court had been properly taken and entered ; and in the second, whether the petitioner had been deprived of taking an appeal by fraud, accident, or mistake. Held, not to be res judicata.</p> <p>2. The Supreme Court will presume that the County Court found that the petitioner was a creditor of the defendant estate, when it might have so found from the evidence, and without such finding, it cou'.d not legally haye rendered the decision it did, nothing appearing to the c ntrary.</p> <p>3. The County Court, under the statute, R. L. s. 1426, has the power in its discretion to grant leave to a creditor to enter an appea1 from the Probate Court when he has been prevented from taking an appeal by fraud, accident, or mistake ; thus, the petitioner’s appeal having been dismissed because of some defect in the bond which he filed with the Probate Court, the decision of the County Court allowing on petition an appeal is not revisable.</p> <p>4. R. L. s. 1426. County Court power to grant appeal from Probate Court, construed.</p>

<p>[In Chancer*.]</p> <p> Railroad. Land Damages. Pstop pel. Statute of Limitations. Joinder of Parties. Jurisdiction. Married Woman. </p> <p>The defendant, M. & C. R. R. R. Co , constructed its road across the land of the oratrix, a married woman, without complying with the statute as to taking land for railroad purposes, without her consent, and without any action, of hers that amounted to an estoppel. After the road was surveyed.and located, but before the oratrix’ land was taken, the M. & C. R. R. R. Co. was mortgaged to secure its bonds owned by the defendant, the Conn. & Pass. R. R. R. Co., and leased to the defendant, E. C R. R. Co. The mortgage was foree’osed and the title established in the bondholders. A bill having been brought to enjoin the defendants from occupying the oratrix’ land, Held,</p> <p>1. The defendants should be enjoined unless they pay the land damages.</p> <p>2. The husband was properly joined as orator; also, the mortgagee and lessee, as defendants.</p> <p>3. The claim is not stale, as demand was made within five, and suit brought within six, years. The Statute of Limitations does not apply.</p> <p>4. Act of 1872, No. 32. passed after the land was taken, and repealed before suit, does not affect the case.</p> <p>5. A Court of Chancery has jurisdiction, as it is not certain that .there is a p’ainadequate and complete remedy at law.</p> <p>6. There was no element of an estoppel. The oratrix by word or conduct did not induce any action or mislead anybody, either mortgagee or lessee. The defendants appropriated her land without right; she seasonably remonstrated, merely allowing, but not inducing, them to hold it, to perform as originally required by law.</p> <p>7. Knapp v. McAuley, 39 Vt. 275, distinguished.</p>

Trespass with count in trover. Trial by jury, February Term, 1882, Rediteld, J., presiding. Pleas, general issue,and justification as tax collector of the town of Brownington, and special replication by plaintiff. After the evidence was in, both parties in open court agreed to submit all issues of fact tq the court. A verdict was ordered for the defendant.

Debt on injunction bond. Heard on the report of a referee, December Term, 1881, Powers, J., presiding. Judgment for the plaintiff to recover $581.70.

Bill in Chancery. Heard on the report of a special master, June Term, 1882. Powers, Chancellor, found due on the legacy the sum of $1475.34, and decreed that this amount should be paid the defendant. The only questions were as to when the legacy was payable and the computation of interest. The facts are stated in the opinion.

Book Account. Heard on auditor’s report and motion to dismiss, December Term, 1882, (Rowell, J., being disqualified), by the two assistant judges of the County Court. Cause dismissed for want of jurisdiction. The case is statéd in the opinion. The debtor side of the plaintiff’s book, where there has been no settlement and balance passed to new account, has always been held to be the criterion of jurisdiction.

Assumpsit for keeping a pauper. Heard on the report of a referee, December Term, 1882, Rowell, J., presiding. Judgment for the defendant. The case is stated in the opinion of the court. The fact as found by the referee that Hiram Brown, the father of the pauper, in May, 1868, moved from Corinth to Bradford, and returned back to Corinth in March, 1869, did not interrupt the settlement.

Action on injunction bond. Heard on referee’s report;, December Term, 1881, Powers,. J., presiding. Judgment for the plaintiff to recover 1139.36, — the sum first named, and disallowing all other sums. The bond was: “Know all men by these presents that we Elhanan T. Lillie, Horatio Lillie . . . are held and firmly bound unto ” (plaintiffs) . . . “ we hereby bind ourselves . . . The condition of this obligation is such that whereas . . .

Trespass. Heard on the report of a referee, April Term, 1882, Powers, J., presiding. Judgment for the defendant. The action was brought to settle the question of title to Spruce Island, so called, in the “ north branch ” of Lamoille river.

<p>[In Chancery.]</p> <p> Mortgage. Highvjay. Foreclosure. </p> <p>1. A mortgagee of a farm is not entitled to a decree of foreclosure against a town of its interest in a highway, although it was laid through the mortgaged premises after the execution of the mortgage, the damages paid to the mortgagor, no notice given to the mortgagee, and the property worth less than the debt.</p> <p>2. R. L. s. 2932, laying out highway, damages — construed.</p>

Trespass on the case. Appeal from the City Court of Burlington. Heard on demurrer to the declaration, April Term, 1882. Demurrer overruled. The case was then heard upon the plea of the general issue by the court.- Judgment for the plaintiff. The facts are sufficiently stated in the opinion of the court. The towns are primarily liable for all injuries received by persons travelling lawfully on the highways.

Petition for highway. Heard on motion to quash, September Term, 1882, Taft, J., presiding. Motion overruled.

Assumpsit. Heard on demurrer to a replication to a plea in bar, December Term, 1882, Ross, J., presiding. Replication adjudged sufficient. The questions raised by the pleadings are stated in the opinion. The plea in bar sets forth a good defence.

Action for injuries received by the plaintiff wife while travel-ling on the highway. Jury trial, June Term, 1882, Caledonia County, Ross, J., presiding. Yerdict for the plaintiff.

<p>Petition. Heard by the court, June Term, 1882, Ross, J., presiding. Dismissed.</p>

<p>Assumpsit. Heard on demurrer, December Term, 1882, Ross, J., presiding. Judgment pro forma for the defendant. The dec. laration averred that the defendant, being a married woman, executed her promissory note ; and that after the death of her husband she, being sole, promised in writing to pay the note.</p> <p>The law is well settled that the debts of a married woman contracted in the management of her separate estate, and for its benefit, on the credit of such estate, in equity will be enforced against such estate. Sargeant v. French, 54 Vt. 391; Bale v. Robinson, 51 Vt. 20 ; Priest v. Gone, lb. 495 ; 46 Ala. 170; 60 Barb. 406 ,• 3 U. S. Dig. N. S. 335 ; 48 Miss. 486 ; 37 Md. 510 ; 47 Cal. 32 ; Kelley v. Long, 4 Hun. 714. The intention of a married woman to charge her separate estate is to be inferred from the fact that she gave her note. Phillips v. Craves, 20 Ohio St. 371; 35 Ohio St. 297 ; Williamson v. Buffey, 19 Hun. 312 ; Sehafroth v. Ames, 46 Mo. 114 ; 4 U. S. Dig. 35 ; 70 N. Y. 295 ; 45 Ala. 370. In general a married woman is liable, so far as she has separate estate, for her debts; — in some States at law, and in others at equity. Batchelder v. Sargeant, 47 N. H. 262 ; 110 Mass. 51; 11 U. S. Dig. N. S. 434. If her estate was liable in equity, the consideration for the promise was sufficient. Booth v. Fitzpatrick, 36 Vt. 608 ; Blodgett• v. Skinner, 15 Vt. 716 ; Chit. Con. 52, n. ; Vance v. Wells, 8 Ala. 399 ; Ceer v. Archer, 2 Barb. 420 ; Cook v. Bradley, 7 Conn. 57.</p> <p>The defendant being a married woman at the time she gave the note, her promise to pay is absolutely void. Brown v. Sumner, 31 Vt. 671; Bale v. Robinson, 51 Vt. 20 ; lb. 495. The promise of the defendant in writing after the decease of her husband was without sufficient consideration. Haywood v. Baker, 52 Vt. 430 ; 1 Parsons Con. 432, n.; Jenning v. Brown, 9 M. & W. 501 ;• Fastwood v. Kenyon, 11 A. & E. 438.</p>

Information filed by the state’s attorney for stealing. Trial by jury, December Term, 1882, Ross, J., presiding. Verdict, guilty. Questions of evidence and practice stated in the opinion.

Petition to foreclose a mortgage in common form. Heard on the report of a special master, December Term, 1880, Veazey, Chancellor. Decree for the orator. It appeared that on the 10th day of May, 1869, Hazael Wiley, C. 0.

<p> Ejectment. Will. Remainder. Condition Precedent. </p> <p>1. In an action oí ejectment between two brothers, — tlie question being as to the ownership of a small piece of land, and this turned on the following clause in their father’s will: “ I give and devise to my beloved son John Casey the home farm, &e.....for and during his natural life with remainder over to his two sons-; and at his decease I give the same to them and their heirs forever ; and this legacy is given upon the express condition that the said John Casey pay to my son Michael Casey the sum of seven hundred dollars on or before the first day of April after my decease.” The $700 had not been paid. Held, that the intentof the testator should govern ; that the title to the real estate vested in the devisee on the death of the testator ; and that Michael had only an equitable lien on the real estate.</p> <p>2. Variance. Under the statute, R. L. ss. 1247,1250, allowing the writ of ejectment, there was no variance, although the declaration averred a seisin in fee in the plaintiff, when he had only a life estate.</p> <p>3. E. L. s. 1247, ejectment; s. 1250, recovery according to the right, construed.</p>

R. Buxton, a pauper, his family and effects. Heard on motion to dismiss the appeal, March Term, 1882, Rowell, J., presiding. Motion sustained.

General and special assumpsit to recover assessments on premium notes. Pleas, general issue and four special pleas in bar. Heard on demurrer to the special pleas, March Term, 1883, Redfield, J., presiding. Demurrer overruled. The action was properly brought in the name of the company. Yeager v. Wallace, 44 Pa. St. 294 ; King v. Cutts, 24 Wis. 627.

Trespass and case for a quantity of hay and oats. Trial by jury, September Term, 1881, Redfield, J., presiding. Verdict directed for plaintiff. The defendant justified on the ground that as a constable he sold on execution the property in question.

<p> Insolvent. Application of Payment. </p> <p>Tbe intent of the debtor prevails over that of the creditor as to the application of payments ; and it may appear try implication; thus, a partnership having dissolved, one of the partners succeeding to the business of the firm, an old debtor, without notice of the dissolution, and not having notice through the fault of the successor, continued to buy, and also to make payments supposing them to apply on the partnership debt, — the law will apply them as he intended.</p>

To this order of removal the defendant filed two pleas : first, that said Loveland had, at the time of said order of removal, no legal settlement in the town of Middlesex; second, that at the time of said order of removal the said George had not come to reside in the town of Marshfield. Trial by jury, September Term, 1881, Redfield, J., presiding. Verdict for the plaintiff. The facts are stated in the opinion of the court.

Information filed by the state’s attorney against the respondent for maintaining a nuisance. Trial by jury, September Term, 1881, Redfield, J., presiding. Verdict, guilty. The case is stated in the opinion.

Complaint for furnishing intoxicating liquor, «fee. Heard on motion to quash. March Term, 1882, Redfield, J., presiding. Motion overruled. The facts are sufficiently stated in the opinion, except that .the complaint was dated Sept. 15, 1881.

Case for injury on a highway. Plea, general issue ; and trial by jury, September Term, 1881, Redfield, J., presiding. Verdict for the plaintiff.

Action under tbe statute, G. S. c. 52, ss. 15, 16,17, (R. L. ss. 2138, 2139). Heard on demurrer to the defendant’s pleas, March Term, 1881, Redfield, J., presiding. Demurrer overruled.

Cask for neglect of the defendant, W. J. Batchelder, as constable of the town of Plainfield, in serving a writ in favor of the plaintiff against R. E. Peabody & Co. Jury Trial, September Term, 1881, Redfield, J., presiding. Verdict for plaintiff.

Ejectment. Defendant Post was defaulted. Defendant Reynolds pleaded the general issue and notice. Trial by court, September Term, 1882, Yeazey, J., presiding. Judgment for the plaintiff to recover possession, and §51.50 damages for detention. The facts are sufficiently stated in the opinion and head notes.

Action by railroad company against one for maliciously causing the arrest of its engineer. Heard on demurrer to the declaration, June Term, 1882, Caledonia County, Ross, J., presiding. Demurrer proforma sustained.

Petition for rehearing. Heard March Term, .1881. Red-field, Chancellor, dismissed the petition. The original cause was heard at the General Term, 1880. This petition was signed by the petitioner, Eebruary 8, 1881, and the citation to the petition was signed by the Chancellor, February 10, 1881.

Bill of foreclosure. Heard Deeember Term, 1881, on a master’s report. Powers, Chancellor, decreed : The petitioner may have a decree of foreclosure upon the Spencer Smith and Wallace W. Swan mortgages, described in the petition against both defendants, for the amounts reported, with accruing interest, and deducting future accruing rents and profits at the rate of $200 per year.

Action for injury on the highway. Trial by jury, September Term, 1879. Orleans County, Redfield, J., presiding. Pleas, general issue and notice. Verdict for plaintiff.