Volume 56 — Vermont Reports

Habeas Corpus. Heard March term, 1883, Yeazey, J., presiding. ■ Judgment that the relator be discharged; to which decision, R. R. Mead, the • constable of… Held: fell when he was discharged'by-’superior authority. The proceedings before the justice came to a-summary end last April. An order of reversal would not restore him to custody, or revive the defunct process. This court does not sit to pass upon hypothetical questions. This is a proceeding in ' a criminal case.

Habeas Corpus. This case was tried in the County Court, and by request of the bar is inserted here. Heard, March Term, T883, Yeazet, J.,'presiding.

Action to recover for injury on a highway. Trial by jury, March Term, 1883, Veazey, J., presiding. Verdict for the plaintiff. The exceptions stated : “ The testimony of the plaintiff tended to show as set forth in her notice, that ‘On the 20th of December, 1880, at about two o’clock p. m., while riding in a sleigh upon.

<p> Statute of Limitations. </p> <p>1. Tlie defendant without leave took the plaintiff’s iron ; in the following-year he promised to pay for it. Held, that the Statute oí Limitations commenced to run at the time of the promise.</p> <p>2. Before the statute had run on the promise, the defendent left the State, ■ leaving attachable property here ; but the plaintiff bad no actual knowledge of it; and there was no lack of reasonable diligence in not finding it. Held, that the claim was not barred.</p>

Arson. Trial by jury, September Term, 1883, Yeazey, J., presiding. Yerdict, guilty. The court rendered ’ judgment on the verdict, and sentenced the respondent to hard labor in the house of correction, at Rutland, for two years.

Assumpsit upon an insurance policy. 'Trial by jury, March Term, 1883, Yeazey, J., presiding. Yerdiot ordered for the defendeant. This case was tried in the Supreme Court, and is reported in the 54 Yt. 223.

Assumpsit. Heard, September Term, 1883, by the court, Yeazey, J., presiding. Judgment; for the plaintiff. The exceptions stated: “ The Eureka Marble Company was a corporation owning and operating a marble quarry in Rutland, and the plaintiff was its foreman on the quarry from 1873 until it failed in 1878, and said sum was then the balance due for his services.

<p>Assumpsit in common counts. Pleas, general issue, payment, accord and satisfaction and offset. Trial by court, March Term, 1882, Yeazey, J., presiding. Judgment for the plaintiffs. Both parties filed specifications. The plaintiff, A. C. Bates, was the owner of a hotel in Rutland ; his son, H. M. Bates, carried on the hardware and sacilery business in a store under the hotel ,- the defendant kppt a livery stable. No question was made but that the suit was properly brought-in the name of A. C. Bates & Son. The exceptions stated :</p> <p>“ At the commencement of the trial, counsel explained, that the case would turn upon the riglit of the defendant to be paid for the boarding of the plaintiff’s horse, which had been charged and allowed to the defendant in said settlement of accounts, that the determination of that question would depend upon the contract between the parties, and that the dispute was in respect to that contract. * * * Amos C. Bates testified that he made a contract with the defendant as follows : That the defendant was to board his, Amos C.’s horse, which he about that time purchased of the defendant, for use by him and liis family, and was to furnish in addition what livery work Amos C. might want in carrying on the business of the hotel, and that this should be the consideration of his, Amos C.'-s, turning the livery business of the house into the defendant’s stable.</p> <p>The defendant testified that he was to have $16 per month for boading said horse, being a reduced price, his usual charges being $20 per month, but did not claim that the contract was different in other respects from what Bates claimed it.</p> <p>Amos C. kept said hotel, in way above stated, about two and one-lialf years, and turned the livery business of the house into the defendant’s stable, as he had agreed. The defendant boarded Bates' horse and furnished other teams for him and his son as called upon. In other words, both parties performed the contract, but they had a different understanding about the board of said horse.</p> <p>A hostler of the defendant boarded at' the Bates House, and the defendant had goods at said store which were charged to him.</p> <p>After about two years the defendant took his account, including charges for boarding said horse; and made out against A. C. Bates & Son, into said store and had a settlement with said Harry M. Bates. The charges of the plaintiff firm included the board of said hostler in the hotel and the store account, etc. Harry M. did not know what the contract between his father and the defendant was about boarding said horse; but upon the defendant’s representation that it was correctly charged in his account as he had agreed with his father, Harry M. settled accordingly, and, supposing it was all right, and the balance being against the plaintiffs, gave a firm check for such balance, and a receipt was given.</p> <p>-x- * -x</p> <p>One species of evidence introduced by the plaintiffs, for the purpose of and tending to sustain the contract as they claimed it, was as follows:</p> <p>That the defendant had entertainment at the hotel, viz.: meals, lodgings, cigars and drinks, very often, and which the defendant never paid for, but would make some remark indicating that the horse keeping covered it. The defendant admitted he had some entertainment of the kind named, but claimed that it was on the invitation of the plaintiffs and because of their intimacy and of his being a large indorser for them, or Amos (J.</p> <p>The court found that as there was no contract, in fact, agreed upon about the horse keeping, the defendant was entitled to charge a fair compensation for it, and that the price charged was'fair; that Bates did not charge for said entertainment because he understood no charge was to be made for the horse keeping; ® * * * that the value or fair charge for said entertainment which the defendant had at said hotel, and for which the plaintiffs, or A. C. Bates, had received no compensation, would be $75 per year; and the court rendered judgment for the plaintiffs, to recover for said entertainment at that rate, amounting, including interest, to $2X6.66. To this judgment the defendant.excepted, counsel announcing it was on the ground that the plaintiffs’ specifications filed did not cover or embrace any such claim, .and made no such issue, and no attempt had been made to meet it.</p> <p>The plaintiff’s counsel thereupon moved for leave to arirend their specifications, claiming that the case in this aspect had been fully tried.</p> <p>The court overruled the motion to amend, with leave, however, to renew the motion if deemed necessary in the future progress of the- cause, this court regarding the specifications as sufficient without amendment.</p> <p>The specifications on neither side had been formally put in evidence, and they had. not been read or shown to the court; and in rendering judgment the court had in mind only the form of the declaration and the scope of such an action in that form, and a proper application of the evidence, which was apparently different, as now claimed by the defendant, from what either party hoped or claimed from it on trial, and was riiade to work a different result from what was intended or anticipated from it.”</p> <p>A bill of particulars “filed upon request and according to the rule oí court ’’.becomes part of the declaration, and operates as a limitation upon plaintiff’s right of recovery. Bank v. Lyman, 20 Yt. 666 ; Lapham v. Briggs, 27 Yt. 26. The judgment for the “ entertainment,” including “ drinks,” was erroneous. Graves v. Ranger, 52 Yt. 504.</p> <p>It. is not material that the specifications were not formally produced or read. The only open issue was “ as to the right of detendant to be paid for the boarding of the plaintiff’s horse,” which has been allowed in the two settlements; and this was distinctly explained, to the court at the commencement of the trial.</p> <p>The court, having decided that issue in favor of defendant, proceeded to cast him in damages for something which it occurred to them the plaintiffs might have charged for, but, had not in fact claimed.</p> <p>A specification effects the proof and the mode- of trial only. Commonwealth v. Davis, 11 Pick. 432. Office of specification stated. Bank v. Lyman, 20 Yt. 666 ; Lapham v. Briggs, 27 Yt. 27 ; Hodges v. JR,. da B. JR. li. Co., 29 Yt. 220 ; .Williams v. Allen, 7 Cow. 316 ; Smith v. Hicks, 5 Wend. 48 ; Brown v. Williams, 4 Wend. 360 ; Canal Co. v. Knapp, 9 Pot. 541.</p> <p>If the evidence now objected to was inadmissible under the specifications, if objected to in season, yet if the evidence was given without objection, and the court see that justice was done, and that the plaintiff has not recovered more than he was justly entitled to, the amount will not be reduced nor a new trial be granted. This is the spirit of all the cases. Dubois v. D. da H. Canal Co., 12 Wend. 334.</p> <p>If no objection is made at the time the evidence is offered and received, it becomes too -late to object, on the ground of a variance between the testimony and the specifications. The claim being of substantially the character described. JRhelps v. Conant, 30 Yt. 277.</p> <p>The practice in the County Court is to require counsel to specify particularly in what a variance consists, before passing upon the question. Hill v. Marlboro, 40 Yt. 648.</p>

<p> Highway. Disqualification of Commissioner. Certiorari. </p> <p>'Commissioner, Disqualifcation of. — The petition was for the establishment of a highway in the towns of M. and P. One of the commissioners had a grand list in M.; but before acting he conveyed the property which was the basis of the list. The town of P. alone excepted. It did not appear from the exceptions that the County Court had accepted the report of the commissioners, or established the highway, or apportioned the expense of building the same. Held,</p> <p>1. That the commissioner was not disqualified; as it was evident that the highway could not be constructed in season so that a tax could be assessed on his then list.</p> <p>2. That commissioners are but agents or officers of the court in investigating the subject matter; and the court is not bound by their action.</p> <p>3. That the judgment of the court below, in this class of cases, should not be reversed unless the writ of certiorari would be granted for the same cause; and this writ is not granted if it is not apparent that some . substantial injustice has been done.</p>

<p> Costs. </p> <p>When a respondent, charged with the illegal sale of intoxicating liquor, appeals from the decision of a justice of the peace to the County Court, and there pleads guilty, the County Court has power to revise the taxation of costs certified in the copies of appeal, and, if found erroneous, to correct it.</p>

Assumpsit. Flea, Statute of Limitations. Appeal from tlie Municipal Court of Rutland, March, 3 883. Judgment for the defendant.

Action on the case. Heard on an agreed statement, March Term, 1883, Yeazey, J., presiding. Judgment for the plaintiff. The defendant gave the plaintiff the following order: “ Owen Owens & Co., Please pay to Thomas McGuire the amount of my store bill due him-each month from my wages, if that amount is earned by me, while in your employ, and the balance, if any, pay to McGuire & Campbell, to apply on a note given by me to them.” [Signed].

Assumpsit upon a promissory note. Trial by court, September Term, 1883, Veazey, J., presiding. Judgment for plaintiff to recover the balance due on the note. The note was given to Anthony Haley, the father of the plaintiff.

<p> Pleading. Order. </p> <p>1. The defendants owing B., the nominal plaintiff, gave him this order: “ Please to pay-(R.) fifty-eight dollars. and charge the same to vs.” The order was intended to he addressed to B., the real plaintiff, and was delivered to and paid by him, and the amount charged to the defendants. Held, that after the order was paid, B. was in no privity of contract with the defendants; that an action could only he maintained in the name of B., and that for money paid.</p>

• Appeal from the Probate Court. Heard on the report of a commissioner, September Term, 1882, Yeazey, J., presiding. It was adjudged that there was in the hands of the administrator of said Pratt $131.52, belonging to Charles R. Thompson,' which sum he was to pay to Joel C. Baker, guardian; to be certified to the Probate Court. The defendant excepted to the report of the commissioners, and to the ruling of the County Court.

Assumpsit. Plea, the general issue. Trial by court, September Term, 1883, Yeazey, J., presiding. Judgment for plaintiff. The defendant was a justice of the peace in Rutland.

<p>[In Chancery.]</p> <p>Petition to become a party oratrix in another suit pending in chancery.</p> <p>Heard on petition, answer, traverse, and testimony, March Term, 1882, Rutland County. Yeazey, Chancellor, decreed:</p> <p>“ It is adjudged and decreed that the said cause is still pending in this court; that the said Caroline E. Chickering is entitled on her said petition to become a party complainant therein; that she is the holder and owner of the first mortgage bonds described in her petition, and the same have not been paid, and that they are outstanding, valid obligations, secured by the first mortgage of the Rutland & Burlington railroad company. And it is further pro forma adjudged and decreed that-she is entitled to the same relief and' remedy upon her petition in said cause now that was granted to the original orators in said cause by the decree of this court at the September Term thereof, 1877,/which is referred to, and which was subsequently affirmed by the Supreme Court.”</p> <p>In the suit of R. D. Smith et al. v. The Rutland R. R. Co. et ah, September Term, 1877, Chancellor Ross made the following decretal order:</p> <p>It is pro forma ordered and decreed that the first deed of trust and mortgage mentioned in the orator’s bill is valid; that the orators, holders of the bonds or obligations mentioned in the stipulation on file, are by said trust deed or mortgage secured their payment, and that the orators are entitled to be allowed interest on the principal of said bonds at the rate of seven per centum pm' annum, payable semi-annually, and that all sums which have or may become semi-annually due on said bonds, as interest, whether expressed in coupons or not, are entitled to draw interest at the rate of six per cent from the time when due until paid; and that the amount due the orators on said bonds or obligations shall be ascertained and computed upon that basis:</p> <p>And it is further ordered and decreed that by reason of the default under said first deed of trust or mortgage, as well as by tlie decree of 1855, which is referred to in said bill, the orators are entitled to the transfer of said railroad and property covered by said first deed as therein provided, unless the amount due the orators on said bonds or obligations, with interest and costs, is paid within- months. And the court doth reserve all further directions in said cause, and any of the parties to said cause are to be at liberty, at any time, to apply to the court, as they may be advised, and as occasion may require.</p> <p>Mortgage, in part:</p> <p>‘1 By and between the Rutland and Burlington Railroad Company, a corporation duly constituted and organized under and by virtue of the laws of the State of Vermont, of the first part, and Franklin Haven and Samuel Hooper of Boston, in the county of Suffolk, and Commonwealth of Massachusetts, of the second part.</p> <p>Whereas, The said corporation, at a meeting of the stockholders thereof, duly notified and held on the sixth day of February current, have authorized and empowered the directors of the said corporation to issue the obligations or promissory notes of the said corporation in sums of five hundred and one thousand dollars each, amounting in the aggregate to a sum not exceeding one million and eight hundred'thousand dollars, etc. * * *</p> <p>Wow, therefore, this indenture witnesseth, That the said Rutland and Burlington Railroad Company, in consideration of the premises, and of one dollar, etc., and by these presents do grant, bargain, sell, and convey, unto the said parties of the second part, the railroad and franchise of said company, etc.</p> <p>* * *</p> <p>But, nevertheless, upon the trusts, and to and for the ends, intents and purposes following; that is to say:</p> <p>First, In trust for and to secure the payment unto the lawful holder or holders thereof, ratably, without preferences, of the aforesaid obligations or promissory notes so to be issued as aforesaid, etc.</p> <p>* *■ ' *</p> <p>Fourth, Upon trust, that in case the said corporation shall fail, neglect, omit or refuse to pay the principal of or the interest upon the said obligations or notes, or any thereof, as the same shall respectively become due and payable, and such neglect, failure, omission or refusal shall continue for the period of four months after payment thereof shall be demanded in writing, the said parties of the second part, or their successors in the said trust, may, by themselves or their attorneys, agents or servants, take possession of all description of the said property, rights, and premises,” etc.</p> <p>Mandate for decree in the case of Oheever & Hart, Trustees, & Others v. Eutland and Burlington E. E. Co. & Others, Supreme Court, January, 1870, in part:</p> <p>“ It is further suggested to the Court of Chancery that this cause be held as ‘with the chancellor,’ until the first day of June, A. I). 1870, before issuing any order for the transfer of the possession of the trust property, and if at that time, upon summary examination, it shall be made clearly to appear to the chancellor that the defendants have paid the outstanding unconverted first mortgage bonds so far as accessible, then in that case to further delay the order for a transfer of possession for the time being, to enable the defendants to discover the remaining unconverted bonds and make complete payment and obviate the need of such transfer.”</p> <p>The other facts are sufficiently stated in the opinion.</p> <p>This suit was brought by the orators “ In behalf of themselves and all others, the owners and holders of said notes, who may choose to come in and participate in these proceedings and contribute to the expenses thereof.” The oratrix did not attempt to “ come in.” The decretal order, which was affirmed, does not cover the bonds in suit. Statute of Limitations. The claim is barred. The bonds were issued in 1851; matured in 1863; the orators’ bill filed in 1875; and this petition in 1881. Jeffers v. Cook, 12 Rep. 586; Shaw v. Cook, 78 N. Y. 191; 2 Dan. Ch. PL & Pr. 1210; Tatam v. Williams, 25 Eng. Ch. 316 ; R. L. ss. 951-2; Hughes v. Graves, 39 Vt. 359.</p> <p>There is no joint interest in the bonds secured by the mortgage, and the mortgage itself indicates that it was given to secure separate notes or obligations hold by different persons and parties; and the holders of these bonds are interested in the mortgage security in unequal proportions. The mortgage debt is not a debt due the trustees in the mortgage, but is a debt due the several owners of the bonds, and their rights are several and individual ; and the case is not at all different in this respect from an ordinary mortgage given to secure several notes held by different parties. A payment of one would not affect a defence as to others; a part could be enforced before the statute had run and others suffered to outlaw. They are separate, independent obligations held by different parlies. 101 IT. S. 673; Jones R. R. Sec. s. 310; Clark v. Iowa City, 20 Wall. 583 ; R. L., s. 975 ; Wood Lim., ss. 222, n. 3, 227, 233 ; Moore v. Bank of Columbia, 6 Pet. 86 ; Bell v. Butler, 1 Pet. 351; 25 Yt. 210; 19 Yt. 26; 15 Rep. 385. Presumption of payment is absolute. Ang. Lim. ss. 543-15 ; Martin v. Bowker, 19 Yt. 526. No relief can be granted even in favor of the parties to the cause beyond tíre terms of the decree. The decree puts a complete end to the suit. Gelston v. Codwise, 1 John. Oh. 188; Hunt. Suit Eq., 51. No new proofs or pleadings can be had. Creme v. Hunter, 2 Yes. 156 ; Shipbrooke v. Hinchingbrook, 13 Yes. 386; Legrand v. Whitehead, 16 Eng. Ch. 271; Taylor v. Pop-ham, 15 Yes. 72; Clark v. Hall, 7 Paige, 382; 5 Dill. 531; Adams’ Eq. 746; Mit. Eq. Pl. 476-7; 2 Mad. Ch. 517; 2 Dan. Ch. Pl. & Pr. ss. 996, 1260 ; Seton Dec., 31; 2 Smith Ch. Pr. 394; Lube Eq. Pl. 123; 4 Sand. 354. There can be no decree in favor of the orators in the original cause, as they are not the owners or holders of the bonds referred to in the petition ; and they are not the trustees of the petitioner in respect to her bonds. 7 Paige, 585; 2 Dan. Ch. Pl. & Pr. 996 ; 1 Barb. Ch. Pr. 333; 10 Paige, 378; Brooks v. Gibbons, 4 Paige, 373; 38 Yt. 370. See, also, 24 Eng. Ch., 382; Good v. Blewvitt, 19 Yes. 336; 3 Dan. Ch. Pl. & Pr., 2236; Story Eq. Pl., s. 99; 1 Hoff. Ch. Pr. 418; 1 Eng. Ch. 491; 5 Eng. B. & C. Cas. 33.</p> <p>After a final decree in a cause in which a party has a right to come in, an entirely new suit will not be permitted. Brooks v. Gibbons, 4 Paige 373; 10 Paige 383. In the present case the interests of the petitioner were represented by the complainants, Smith and others, and the trustees of the first mortgage. The other bondholders may be allowed to come in. Jones B. B. Sec. ss. 434, 448; Mason v. Railroad, 52 Me. 82 ; Marsh v. Railroad, 40 N. H. 548, 560; Campbell v. Railroad, 1 'Woods, 447; Sterndale v. Haukinson, 1 Sim. 393. The bondholders are in such case quasi parties to the suit, and have a right at any time to intervene and become actual parties. Jones B. B. Sec. s. 361; Story Eq. Pl. s. 96, n. 1; Hunt. Suit Eq. s. 16 ; Jones Mort. 1385. All the beneficiaries under a mortgage in trust should be made parties. Story Eq. Pl. 201; Hallett v. Hallett, 2 Paige 15; Story Eq. Pl. 99, 102-3. The petitioner was a party to the decree. Sewall v. Brainerd, 38 Yt. 371; Campbell v. Railroad, supra.</p> <p>If she was left out by accident or collusion she may have relief upon motion or petition. Jones B. B. Sec. s. 448; Bob. Dig. 139; Porter v. Vaughn, 22 Yt. 269 ; Barker v. Railroad, 35 Yt. 451; Langdon v. Railroad, 53 "Vt. 228. A decree upon a mortgage must be entire and merge the mortgage. Jones R. R. Sec. s. 438 ; Story Eq. PI. ss. 141-2-3. A complainant in such case is at no time dominus litis absolutely. The court for cause may give the control to other parties. Jones R. R. Sec. ss. 361-2, 433-6 ; Adams’ Eq. 257,320; Mit. Eq. PI. 26 ; Story Eq. PI. 89, n. 5, 102; Ross v. Orary, 1 Paige, 416. All the gu'asi parties having an inchoate interest in the suit carried on by the trustees the Statute of Limitations does not run. 1 Sim. 393; Ang. Lim. 331; Dan. Ch. PI. & Pr. 667, 668, 1208; Mason v. Railroad, 52 Me. 82; Knapp v. Railroad, 20 Wall. .117; 3 Dill. 487; 4 Dill. 533. The payments revived the mortgage. Jones Mort. 1196-8; 2 Wash. R. Prop. 171; Hough v. Bailey, 32 Conn. 288; Richmond v. Aiken, 25 Yt. 326; Martin v. Bowícer, 19 Yt. 526; and the entire mortgage, Jones R. R. Sec. s. 431; Ang. Lim. 246,'434. Defendant estopped, being a trustee. Ang. Lim. 466; Perry Trusts, ss. 859, 860, 601. The deed of the Rutland & B. R. R. Co. subject to this mortgage was an acknowledgment in writing. Wood Lim. 199 ; Palmer v. Butler, 36 Iowa, 5‡6. It was discretionary with the chancellor whether the party should proceed by petition or supplemental bill. Wiggins v. Gray, 24 How. 303, citing 10 Pet. 288, 410; Mit. Ty. Eq. PI. 18.</p>

<p>[In Chancery.]</p> <p>Bill in chancery to recover land damages oí a railroad company. Heard on bill, answer, replication, and report oí a special master, September Term, 1882, Franklin County. Taft, Chancellor, ordered pro forma that the bill be dismissed. The case was referred to Judge Powers, who reported substantially as follows :</p> <p>Í find from the undisputed facts in said cause that the said Missisquoi Railroad Company ivas a corporation duly chartered by the Legislature of this State with power to construct its railroad' from St. Albans to Ricliford, in the County of Franklin, and to take lands for that purpose; that said company prior to December 1, 1870, surveyed and located its said railroad over the lands of the orators' intestate, J. O. Kitteli, described in the bill of complaint in this cause and on or about said date entered upon said lands for the purpose of constructing said railroad, finishing the construction thereof in 1871; that said company on the 28th day of November, 1870, executed a mortgage of its said railroad to the defendants, Smith, Cheney, and Stevens astrustees, as set forth in said bill, and that under said deed and a decree of said Court of Chancery, said trustees on the 15th day of November, 1877, took possession of said railroad and have since operated the same over the lands aforesaid; that after the construction of said railroad and until said November 15, 1877, said company operated said railroad over the lands aforesaid; that the orators have duly demanded the damages occasioned by tlio taking, entry upon, construction and operation of said railroad upon the lands aforesaid, and that no part of the same has been paid; that said J. C. Kitteli deceased in 1874, and the orators, were duly appointed administrators upon his estate in December, 1874; that no deposit of the sum of six hundred ($000) dollars in the First National Bank of St. Albans or elsewdiere to the credit of the orators was ever made by the defendants or any of them, as required by orators’ exhibit No. 3, therein-after mentioned ; that Hon. Homer E. Royceand Edward A. Smith at the time said railroad was constructed w'ere a committee of the directors empowered to settle land damages upon the line of said road in the town of Sheldon where the lands in question were situated.</p> <p>The defendants offered said Royce and Smith as witnesses to show an agreement made by said J. C. Kitteli with them as such committee before the entry upon said lands, whereby said Kitteli consented that said company might enter upon said land for the purpose of constructing its said railroad, leaving tlie question as to tlie amount and payment of damages for future adjustment. The orators objected to the admissibility of these witnesses on the ground that the said J. C. Kittell, with whom said agreement was alleged to have been made, is now deceased. The master overruled this objection to which the orators excepted; and from the testimony of said witnesses taken subject to the orators’ objection and exception, 1 find that in the fall of 1870, after the location of said railroad over the lands described in said bill and before entry upon the same by said company for the purpose of constructing its said railroad, said Royce and Smith, as such committee as aforesaid, 'called upon,!. O. Kittell at his hotel in Sheldon and inquired of him what he asked for his damages for the taking of his said lands for the uses of said railroad; that said Kittell declined to fix upon a sum; that said committee informed Kittell that said company would require said lands soon for the purpose of constructing its road, and unless the damages were agreed upon they would have to call out the commissioners to appraise the same; that said Kittell thereupon told them that the company might enter upon the land and build its road, and after the road was built, if they could not agree upon the damages to be paid him, tlu> same should be ascertained by leaving it out, or having the same fixed by the commissioners. To this the committee assented; and the company entered upon said lands and built* its road without further arrangements respecting said damages.</p> <p>If the testimony of said Royce and Smith is not admissible under the objection made thereto and ought not to be considered upon the issue to which it relates, then 1 find that there is no evidence in the case tending to show that the said J. C. Kittell ever consented to the entry upon said lands by said company for the purpose of constructing its railroad.</p> <p>There was no evidence in the case tending to show that said J. O. Kittell, in 1ns lifetime, or the orators as his administrators, ever consented to the operating of said railroad over said lands, or the occupation thereof for that purpose, or that ho or they ever forbid or protested against such operation and occupancy.</p> <p>'There was no evidence in the case tending to show that said J. C. Kittell and said company ever agreed upon the amount of his said damages, or the time or manner of the payment of the same; and the orators as his administrators have made no such agreement.</p> <p>The orators offered in evidence a paper purporting to be the report of appraisal of damages to the estate oí J. O. Kittell by E. Henry Powell, If. I). Wead and J I). Houle, commissioners, dated Dec. (j, 1875 (Ex. No. 8). The defendants objected to the admission of this report on the ground that there was no proof of the due appointment of said commissioners. Thereupon the orators notified the defendants’ solicitor to produce the original certificate, of the appointment of said commissioners, and a reasonable time having elapsed in which the defendants might produce the same if in their custody, the orators offered as witnesses the said Powell, Wead and Soule, named in said report as commissioners, who each testified, against the defendants’ objection and exception, in substance, that tiie-y signed said report and performed the duties and services stated and recited therein at the dates and in the. manner therein stated; that neither of them had in their possession the commission under which they acted, and had never seen the same since the day of the hearing before them. Said Powell testified that he drew up said report and that at that time lie had in his possession a paper certifying to his, said Wead’s and said Soule’s appointment as commissioners to perforin the services detailed in said report; that said paper was not now in his possession; that he had made search for it and did not know its whereabouts. Said Edward A. Smith testified that it wras his recollection that the said R. R. Co. joined the orators in calling out said commissioners.</p> <p>If upon the evidence in connection with said Exhibit No. 8, it is warrantable for the master to find the due appointment of said Powell Wead and Soule as such commissioners, then I find such appointment, and admitting Exhibit No. 3 in evidence, find all the facts therein stated to be true. If the evidence aforesaid is not admissible then there is no evidence in the case of the appointment of said Powell, Wead and Soule as such commissioners.</p> <p>I further find that said report (Exhibit 3) was not recorded in the town clerk’s office in Sheldon until October 14, 1879, and that no appeal was taken from the appraisal therein made, gnd said sum of six hundred dollars has never been paid nor any deposit thereof made as ordered by said report.</p> <p>I further find that neither of the defendants has constructed or maintained the crossings or cattle-pass mentioned in said report, nor restored the watercourse therein referred to, and that in consequence of the defendants’ neglect in those respects the orators have suffered 'damages up to date to the amount of $200.</p> <p>The orators introduced evidence as to the actual damages sustained by reason of the taking of said lands for railroad purposes from which I find, if said Exhibit No. 3 is not admissible or not binding upon the parties to this suit or upon said trustees as to the appraisal therein made, that the damages sustained at the date of this report including said sum of $200, last above mentioned is the sum of $1,000.</p> <p>I further find that said Missisquoi R. R. Co. occupied said land for railroad purposes from the time of its entry thereon till November 15, 1877, and since that date until the present time said trustees, Smith, Cheeney and Stevens, have occupied the same for like purposes.</p> <p>If Exhibit No. 3 is a valid assessment of the orators’ said damages and the orator's are entitled to decree therefor, they should have interest thereon from December 1, 1870, the date of the said company’s entry on said land, unless the court should be of opinion that interest should run from- the date of said Exhibit 3.</p> <p>Award of commissioners (Exhibit No. 3).</p> <p>“Whereas the Missisquoi Railroad Company have located their road over land owned by the estate of Jonathan C. Kittell of Sheldon in the county of Franklin and State of Vermont, which land so taken by said company for said road is situated in the town of Sheldon in the county of Franklin, and is described as follows, to wit:</p> <p>* * * (Description of the land).</p> <p>And whereas the said company and the said Jonathan Kittell’s estate have not been able to agree upon the amount of damage's therefor, and application having been made to the undersigned by said company to appraise said damages, we, having been duly appointed commissioners for that purpose under and according to the act incorporating said company, duly notified said company and the said Jonathan Kittell’s estate that we would meet * * to appraise said damages * * * and at the time' and place jrforesaid we met and the said company appeared before us by their attorney, and L. H. Kittell, administrator of said Jonathan Kittell’s estate, did appear.</p> <p>We appraise and award to the said Jonathan Kittell’s estate the sum of six hundred dollars as and for his damages for the said land above described and so taken for said road, and for all damages that may accrue to said estate by reason of the location of said road over said premises, which sum we order and direct the said company to deposit in the First National Bank at St. Albans to the credit of the said Jonathan Kittell’s estate.</p> <p>And we do further order and direct that said company shall at once restore the water-course cut off in the construction of- said road by laying the same across the line of said road under the railroad track, and build and maintain1 for the accommodation of said farm tlxe following crossings, to wit: two ordinary farm crossings, one opposite the old house on said farm just west of the telegraph pole, and one near the switch as the same is now established, within tlie limits of tlie land described herein; also a cattle pass with suitable guards opposite the barns.”</p> <p>[ Signed by Commissioners.]</p> <p>The case of Hart v. B. B. Go. also arose in Franklin County. All that is necessary to state of the master’s report is as follows:</p> <p>‘ ‘ That after said company surveyed and located its railroad upon the orator’s said land, and on tlie 1st day of October, 1871, and ■ before said company had made any entry upon said lands for the purpose ef constructing its said railroad,- the orator and said company agreed upon the sum of four hundred dollars as l>he orator’s damages occasioned by tlie construction of said railroad upon said lands, and that on the 1st day of June, 1879, the defendant, Smith, in behalf of said trustees paid to the orator as part of such land damages, tlie sum of two hundred (200) dollars, and that tho balance of said sum of four hundred dollars has never been paid, although demand therefor has been made by the orator before bringing this suit; that the orator never gave any consent to said company to enter upon said lands for the purpose of constructing its said railroad, nor has he ever given any consent to any of the defendants to occupy said lands for tlie operation of said railroad; that tho orator has never made any agreement with the defendants or either of them respecting the payment of said damages, and no agreement touching tlie same except the agreement of October 1, 1871, as aforesaid, by which the amount of .said damages was fixed.”</p> <p>The eases, Susan A. Bugbee v. St. Johnsbury ds Lahe Champlain 12. 12. Co., and Chester E. Dean v. Same, came np from Caledonia Comity, on demurrer to the bills. The facts are so nearly like those of the two former cases that it is unnecessary to state them.</p> <p>The company had no common law right to take the land. All the power it had was derived from the legislature; but the legislature cannot grant what is prohibited by the constitution. Private property may be taken for public uses when necessity requires it, but only with the consent of the owner or the representative body of the freemen, and when taken in either of said ways the owner must receive an equivalent, and that equivalent must be in money. I submit that the constitutional right to an equivalent in money is not affected by the fact as to how the property is taken, whether by consent of the owner or consent of the representative body of the freemen. The constitutional right to the equivalent in money attaches, “ whenever (no matter how) any person’s property is taken for the use of the public.” If taken by the owner’s consent, unless he go further and consent to forego any equivalent or agrees to accept another equivalent, the constitutional right to the money equivalent is absolute and does not lapse.</p> <p>The only prohibition there is in the constitution to taking property for public uses, is, when both the consent of the owner and the consent of the representative body of the freemen is wanting'; with such consent there is no prohibition, but in place thereof a constitutional obligation is imposed to pay an equivalent in money, an obligation which attaches upon the taking; and which must be fulfilled in order to deprive the owner of title or vest title for the purposes of the public use. Bierce E. E. 162-3 Power to take regulated wholly by statute. E. L., ss. 3356-7-8.</p> <p>Owner’s Remedy. — We insist that the statute remedy is not that adequate remedy insuring to the land-owner an equivalent in money for his land taking, as guaranteed by the constitution, and if it is not adequate it cannot be an exclusive one. Pierce, 163; 17 Fed. Eep. 466. A consent to the taking, under the constitution, and a consent to the entry, under the statute, only has the effect to make the possession of the company a legal possession, and the possession when taken makes the right of the land-owner to an equivalent in money, absolute. Before the land was taken the right never existed. Can it be that when the land is taken the right vanishes and is extinguished ?</p> <p>JVo Waiver. — No consent of the land owner which does not by its terms vary or release the constitutional right to a money equivalent, can in any event affect his right to such equivalent, or any remedy that the law may give him for its enforcement. Perkins v. Me. Gen. R. R., 72 Me. 95 ; Pierce, 131; Reed v. Lamoille Valley R. Li. Go., Franklin County, January Term, Sup. Ct., 1879; Wade v. Mennessy, 55 Yt. 207.</p> <p>So it seems that there ought not only to be a remedy but a complete remedy, so that there should be no denial of any right. It would be a painful commentary upon the law, if a court of equity should hold that where one is in possession of land without title, with an obligation resting upon him to pay an equivalent in money, and a party who lias the title has an absolute right to the land or the equivalent, that there was no remedy to meet the case.</p> <p>This court has decided in two caqes involving the question of such remedy, that there is a remedy, and the remedy prayed in the bills in these eases: Kendall v. M. da O. It. R. R. Co, 55</p> <p>Vt. 438; Reed v. Lamoille Valley R. R. Go., supra. The last two eases are decisive that the mortgagee takes only the right of the mortgagor.</p> <p>At the time Mrs. Bugbee’s land was taken she was a married woman. The Statute of Limitations cannot be a bar to her claim. Perkins v. Me. Gen. R. R. Go., 72 Me. 95; Gox v. R. R. Go., 48 Ind. 178. There is no remedy at law. McAuleyv. Western Vt. R. R. Go., 33 Vt. 311; 39 Yt. 275; 45 Yt. 215; Provolt v. R. R. Go., 57 Mo. 256. ' It is in Equity. Kendall v. M. <& O. R. R. Go., 55 Yt. 438 ; Wade v. ILennessy, 55 Yt. 207, Dean's case. The agreement to accept the appraisal of two men named gave no consent to a permanent occupation of his land; no right as to the payment of his land damages was waived; and no title to the land over vested in the company. JEvans v. R. R. Go., 64 Mo. 453; 1 ‘Story Eq. J. s. 439. Different actions are allowed in the different states. In Georgia, an action at la.w: Atlanta R. R. Go. v. LLodnett, 36 Ga. 669 ; in New York, ejectment or trespass: Lyon v. Jerome, 26 Wend. 485; in Maine and Wisconsin, trespass: Sherman v. R. R. Go., 40 Wis. 645; 40 Wis. 653; 72 Me. 95, supra ; in Pennsylvania, ejectment: McGlinton v. R. R. Cm,', 66 Penn. St. 404; in Indiana, ejectment or an injunction : Gox v. R. R. Go., 48 Ind. 178; in Ohio, an injunction, or a sale of the railroad : Chapman v. R. R. Go., 6 Ohio, 119 ; Dayton R. R. Go. v. Lawton, 20 Ohio St. 401. An injunction in equity is the proper remedy. Ke,ndall v. M. dé G. R. R. R. Go., supra; 69 Mo. 633. There was no remedy at law. JMJcAuley v. Western ' Yt. JR. R. Go., supra; where there is no remedy at law, equity lends its aid: Pierce Railways, 163, 167. Waiver. The court will not find a waiver without full, distinct, and unequivocal proof. Bnangofs Appeal, 55 Penn. St. 129. Private property cannot be taken for public uses without compensation. The compensation must precede the title — actual payment of the damages, or no vesting of title in the company. JBursley v. R. R. Go., 13 Cal. 306, 316; Gray v. R. R. Go., 13 Minn. 315 ; Ilursch v. R. R. Go., 17 Minn. 439; Gear v. R. R. Go., 20 Iowa 523; Baltimore R. R. Go. v. JNesbit, 10 How. 395; Bloodgood v. R. R. Go., 18 Wend. 9; R. R. Go. v. Oallendar, 13 Kan. 596; Loop v. Ghamberlain, 20 Wis. 125 ; Cooley Con. Lim.,pp. 181, 561-2; JN. O. R. R. Go. v. Jones, 12 Rep. 645 ;. Walther v. R. R. Go., 20 Mo. 277. If there was a sale (which we deny), the defendant must first perform the conditions on its part and pay. Pomeroy, Spec. Perf. ss. 32, 115 ; Stark v. Wilder, 36 Yt. 752 ; R. R. Go. v. Battle, 66 N. C. 540; Hubbard v. R. R. Go., 63 Mo. 68; Aiken v. R. R. Go., 26 Barb. 289; Drury v. R. R. Go., 127 Mass. 571; Goe v. H. J. JML. R. R. Go., 30 N. J. Eq. 21; S. C. 31; N. Y. Eq. 105 ; Gray v. R. R. Go., 37 Iowa 119.</p> <p>We maintain that the orator has a claim upon the land akin to the vendor’s lien, which equity will enforce. Such was the law of Yermont as to all purchasers of land up to 1851. Manley v. Slason, 2 LYt- 271. See Judge Redexeld’s x’emarks in MJeAxdey v. Western Yt. R. R. Go., supra, p. 322; Gilman v. R. R. Go., 37 Wis. 317; Goe v. H. J. M. R. R. Go., supra; Plot v. R. R. Go., 65 N. C. 74.</p> <p>The appraisal made by E. H. Powell and others, styling themselves commissioners, was inadmissible. The appraisal must be made within two years. R. L. s. 3371. This one was not made until more than five years after the land was taken by the consent of the orators’ intestate.</p> <p>There was no record of the appointment of the commissioners, nor any legitimate evidence of their appointment. Mr. Rowell said he had an impression that they had some kind of a commission.</p> <p>There was no evidence to show an appointment by the Supreme Court.</p> <p>There was no record or paper of which the contents could be shown.</p> <p>- Edward A. Smith testified that the company joined in the request for the appointment of commissioners, which clearly shows that it was not a commission by two judges of the Supreme Court.</p> <p>The testimony of Judge Royce and Edward A. Smith was properly admitted. They were not parties to the suit, to the “cause of action,” nor t-o any “contract in issue.”</p> <p>Poquet v. Worth PLero, 11 Yt. 96 ; Cheney v. Pierce, 38 Yt. §15 ; Cole v. Shurtleff, 11 Yt. 311; Morse v. Low, 11 Yt. 561.</p> <p>The testimony cleaily establishes the fact that the orators’ intestate consented that the company might enter and take the land for the construction of its road, the company to pay the intestate’s damages, if the parties could agree on the amount; and if not, such sum as commissioners should award. Commissioners in such a case could only act as arbitrators, but as such, their award would be binding.</p> <p>Upon the facts found the orators are not entitled to relief, and cannot sustain this suit-, as against Smith, Cheney and Stevens. McAuley v. Western Vt. R. R. Co., 33 Yt. 311 ; Knapqi v. McAuley, 39 Yt. 275 ; Troy <& Boston R. R. Go v. Potter, 12 Yt. 272 ; 1 Redi. Rail. 366 ; R. L. s. 3359. The Statute of Limitations is a good defence to the suit. 1 Redi. Rail. 336, 351; R. L. s. 3371.</p> <p>The defendant claims that the orator, by allowing the Essex County R. R. Co. to take his land and convert it into a public railroad, and by the arrangement with them as to the future ascertainment, and payment for his land, lost all right to reclaim the land by suit either at law or in equity; and having given credit to that company for his land, his only remedy was against it.</p> <p>In McAuley v. Western Vt. R. JR. Co., 33 Yt. 311, it was held that when the land owner acquiesces in the construction of a railroad over his land without prepayment of his damages, and the road is constructed and put in operation, he cannot after-wards, on failure to obtain payment, maintain trespass or ejectment for the land. Knapp v. McAuley, 39 Yt. 275, was the same case in another form, and the same doctrine was reasserted there. These cases were fully approved and followed in the case of Austin v. Rutland R. R. Co. et al., 45 Yt. 215 ; Potter v. Troy & Boston R. R. Co., 42 Yt. 265. Kendall v. PI. (& C. R. R. R. Co., 55 Yt. 438, is not in conflict with these.</p> <p>The principle upon which all the cases in this State have proceeded, is, that if the land owner waives his right to exact payment for his land in advance, and consents to have his land become a part of a public railroad, his right to reclaim his land is gone. Ho has given credit for it to the railroad company and has just the same remedies, and no more, as for the collection of any other debt.</p> <p>Our statute is founded on the same idea, and provides that if payment in such case is delayed for two years the party need wait no longer for appraisal proceedings, but may resort to an action at law to recover the price of his land. If the consent be accompanied by a special agreement that a party shall retain his lien on the land, then the courts will enforce it, as held in the recent case of Kendall, and suggested by Judge Barrett in the 39th Yt.</p> <p>Where no such lien is reserved by contract, and the party has given credit to the company, it is absurd to say that a party cannot reclaim his land by an action at law, but may do the same thing by a suit in equity.</p> <p>In the case of R. R. Co. v. Lewton, 20 Ohio St. 401, Lew-ton had a vendor’s lien. Our statute cuts that off.</p> <p>In several cases where railroads have been constructed over lands, without any agreement with the owner, and nothing paid, the owner has been allowed to maintain ejectment or trespass, even where ho saw the road being built, and did not object. Perkins v. Me. Cent. P. P. Co., 72 Maine 95; Daniels v. C. F. c& JP'. P. P. Co., 41 Iowa, 52; Conger v. Bur. dc 8. W. P. P. Co., 41 Iowa, 419.</p> <p>In no ease that I have seen, where the land owner has consented to the building of the road, without prepayment of damages, relying on some contract with the company for future payment, has the land owner been allowed to reclaim his land.</p>

<p>Justice of the peace having issued a Void Complaint, when liable for False Imprisonment.</p> <p>1. A grand juror’s complaint was exhibited to the defendant, a justice of the peace, November 12, 1880, charging the plaintiff with theft, and alleging the theft to have been committed on September 20, 1874. Thereupon, the defendant, as a justice, on the said 12th day of November, issued his warrant, and the plaintiff was apprehended by a sheriff, brought before the defendant, and after an examination was ordered to procure bail for his appearance to the County Court, and, having failed to do so, was committed to jail on a mittimus issued by the defendant. The statute provides that complaints for theft shall be commenced within six years after the commission of the offense; and that if a complaint is brought after the time thus limited, “ such proceeding shall be void and of no effect.” — K. L., s. 1714. In an action for false imprisonment; Held, that the complaint was void, as it showed on its face that the statute had run on the offense charged; that the defendant had no jurisdiction of the process, and was therefore liable; and that this is so, although it was made to appear to him that the crime had not been discovered until the time when he issued the warrant, as the statute began to run from the commission of the offense, not from its discovery. Powers, J., dissenting.</p> <p>2. In this State the law makes the same presumptions in favor of the jurisdiction of justices that it does of that of superior courts.</p>

Assumpsit to recover money paid under protest by the plaintiff to the defendant for taxes assessed on real estate. Flea, the general issue. Trial by jury, September Term, 1882, Chittenden County, Taft, J., presiding. ' Ybrdict for the plaintiff.

<p>Trover for a wagon. Heard on an agreed statement of facts, September Term, 1882, Washington County, Redeield, J., presiding. Judgment for the defendant. The defendant was constable and collector of taxes of the town of Barre, and sold the wagon in question on a warrant to satisfy taxes claimed of the plaintiff. The case is stated in the opinion of the court.</p>

Trespass for taking a cow. Tlea, general issue, with notice of special matter of justification, that the defendant, as collector of taxes of the town of Cambridge, seized and sold the cow for taxes. Trial by jury, April Term, 1883, Lamoille County, Powers, J., presiding.

<p>Action to recover damages for injuries on a highway. Plea, general issue. Trial by jury, June Term, 1881, Orange County, Powers, J., presiding. Verdict for the plaintiff.- Notice:</p> <p>* * * “ Said highway leading from Brushwood (so called) in Fairlee to Bradford village, and on a clay hill between the residence of Charles Piper and the Waits River road; and the injury was particularly occasioned by a stump having slid from the bank into the traveled track of the road,” etc.</p> <p>It appeared that there were two roads leading from Brushwood to Bradford village; that one was called the Rowell Brook road, and the other the Brushwood road; that the former was 388 rods long, and that the plaintiff was traveling on this one when injured; and that the accident was occasioned by a stump having slid into the road.</p> <p>The court found:</p> <p>“That the plaintiff at the time of his accident was traveling upon the new portion of the Rowell Brook Road for the first time and was not acquainted with any natural objects that might be referred to as monuments except the stump in question by which to locate the place of injury with definite precision; that the hill where the accident occurred was unmistakably a clay hill even to a stranger passing over it for the first time; that neither the hill spoken of in the ease as near the Davis Four Corners, nor the place where the small stump 120 feet west of the place of accident had slid down, wTere hills that would in common parlance be described as clay hills; and that from the plaintiff’s acquaintance with the locality, ho gave as accurate and definite location to the place of his injury as was practicable for him to do. And that this should be held so, inasmuch as his notice was addressed to men who had such familiar acquaintance with the road that his notice carried precise information respecting the hill that the plaintiff claimed as the place of his accident. In respect to the conflicting evidence touching the terminus of the Rowell Brook Road nearest to Bradford village, the court found that from said last named terminus to Bradford village, and from said terminus to the point marked on the plans as the intersection ’ of the roads marked as ‘ Old South Road ’ and ‘ Waits River Road,’ the road has for many years prior to 1873 and ever since been generally spoken of as Waits River Road, though the older inhabitants, who knew the old South Road, and -were accustomed to speak of the road, as the old South Road, before the Rowell Brook Road was built, still retain the old name — that an inquirer at Bradford village seeking to know the way to East Corinth or to the Davis Four Corners would be told as a general rule by the residents of that village to start up the Waits River Road instead of being • told, to start up the old South Road, and beyond the point of intersection of the Rowell Brook Road the direction would be varied according to the destination, and that the plaintiff in describing this road at the point where the Rowell Brook Road intersected it, gave it the name by which at that time and since it was more generally called. And upon the'whole evidence bearing upon the question of notice held that the place of accident was answerable to the notice, and that the notice sufficiently described the place where the accident happened. Upon inquiry by the court it was conceded by both parties that there was no question connected with the sufficiency of the notice to be submitted to the jury.”</p> <p>The depositions of Grant and Bragg were excluded on the ground that the citations were signed by the clerk of the County Court.</p> <p>The other facts are sufficiently stated in the opinion of the court.</p> <p>The notice was insufficient. There.are two roads between the residence of Piper and the Waits Riv,er Road. The notice gives no indication of which of these two roads is meant, except that it says that the accident occurred on a clay hill; but there were three clay hills upon the shorter of the two roads, and at least one upon the other; and two stumps 120 feet apart on or near the highway on which the accident happened. Butts v. Stowe, 53 Vt. 600; Underhill v. Washington, 46 Vt. Y6Y; Beedv. Calais, 48 Vt. Y; Bean v. Concord, 48 Vt. 30. There was error in the charge as to the plaintiff’s admissions. Alexander v. Blodgett, 44 Vt. 4Y6. Also error in excluding the two depositions. Middlebury College v. • Cheney, 1 Vt. 336; Commissioners v. Boss, 3 Bin. (Penn.’) 539 ; Bryden v. Taylor, 2 Harr. & J. (Md.) 396 ; Filis v. Eastman, 38 Cal. 195. Also error in admitting Melendy’s deposition. Foye v. Leighton, 24 N. H. 29; Meyers v. Murphy, 60 Ind. 282; Banle v. Tory, 30 Iowa, 85; Pralus v. Pacific, etc., Co. 35 Cal. 30. Also error in refusing to comply with 12th request. 4Y Barb. 404; 29 N. Y. 4YP; 2 Ired. 250. •</p> <p>A notice could not well be drawn that could not be made more definite. It is a reasonable degree of accuracy and certainty, under all circumstances, in these matters, that the law demands.</p> <p>In the case at bar, the County Court found, in substance, as a question of fact, that the notice, in respect to the location of the place of injury, was definite to a reasonable degree.</p> <p>The decision is not revisable on error. Banney v. Sheffield, 49 Vt. 191.</p> <p>Unless upon the face of the exceptions it appears that the whole testimony was clearly and legally insufficient to support the finding of the court, it will be presumed that the finding and decision were correct. Emerson v. Foung, 18 Yt. 603 ; Brattleboro East Society v. Reedy 42 Yt. 76, 78.</p> <p>But we insist the notice was sufficient, and is clearly distinguishable from the notice in Law v. Fairfield, 46 Yt. 425 ; Babcock v. Guilford, 47 Vt. 519 ; Reed v. Calais, 48 Yt. 7.</p> <p>The 12th request was properly refused. State v. Roe, 12 Yt. 110; Riford v. Rochester, 46 Yt. 738. There was no error as to the depositions. R. L., ss. 818, 1027,’2598, 2635 ; Coates v. Canaan, 51 Yt. 132.</p>

<p>Trespass and case for injuries received by collision with a runaway team. Plea, general issue with notice. Trial by jury, March Terna, 1883, Washington County, Redeield, J., presiding. Judgment for the defendant. The injury complaiued of was occasioned by a collision with a runaway team while the plaintiff was attending the annual fair of the Washington County Agricultural Society. The defendant was one of the marshals of the society. Many men, women, and teams wore on the fair grounds. A trial of speed of horses was about to begin. No question was made but that the defendant had a right to keep the track clear. The defendant claimed that one William Stevens was driving a pair of horses with a carriage on the track in violation of the rules of the society, and that he, defendant, in a prudent and lawful manner, caused Stevens and his team to be turned off the track. This team in the act-cf turning broke loose, and caused the injury.'</p> <p>The plaintiff offered the testimony of Albert Howison, who testified to Dudley’s acts in turning the horses off the track. The defendant’s counsel, on cross-examination, proposed to inquire of the witness as to the conduct of William Stevens, who was in no way connected with the plaintiff, as to the conduct of William Stevens, and as to the trouble the defendant had had with him on the same occasion, but before the time lie rode in before Stevens’ team and turned it off the track, and also as to teams being on the track at the time.</p> <p>The plaintiff objected, claiming that the only question for the jury was, whether the defendant, in turning the team off the track in the manner he did, acted with reasonable care, caution and prudence, or was reckless and negligent.</p> <p>The court overruled the objection and admitted the testimony of the witness, and other witnesses, tending to show that William Stevens was ordered off the track, by several persons who had charge of the same, and that defendant ordered him off the track a short time before he turned him up the bank, and that he drove off,but as soon as defendant passed he drove back on to the track, when Dudley turned and rode rapidly in ahead of him, and turned him up the bank.</p> <p>The other facts are sufficiently stated in the charge to the jury and in the opinion. The court charged:</p> <p>“The wrong complained of against this defendant is that he improperly, wrongfully, either in the manner or kind of the act, interfered with William Stevens’ horses and team, and either drove them or caused them to turn off the track, and in turning off, the horses got liberated, and ran at large into the crowd of people, and this plaintiff was injured.</p> <p>The defendant was a deputy or assistant marshal in keeping order and enforcing the rules of this association. We .do not think it important whether the association or the corporation had passed any special vote. It is incident to all popular assemblies for lawful purposes that they may establish rules to preserve order and peace. , An association, gathered together for agricultural and mechanical purposes, has a right to choose a moderator and to appoint other officers to keep order; and if any one intrudes upon the rules, or disturbs them, such officers have the right to cause such intrusion or disturbance to stop, to be abated, in a reasonable and proper manner,” * * * * So this case must .stand that William Stevens was in the wrong, and that Dudley was discharging his duty rightfully. Now, it is said, that although that is conceded, this defendant, Dudley, did a wrong.in the manner of requiring or causing this William Stevens to leave the track and go up on thd grass-ground. If it were a case where Stevens or one of those women in the wagon had been injured, that would be a common phase of litigation, such as we frequently have here in court. Stevens -was in the wrong, —wrongfully there; but Dudley had a,duty, not only to cause Stevens to leave, but to cause him to leave in a manner which was reasonably prudent. He must not cause him to go off or enforce his authority upon him in ¡a manner which would necessarily endanger life and limb.” * * *' “We are asked to charge,, on the part of the plaintiff, that you are to consider nothing but the mere fact of the turning off or the causing of William S tevens to be turned off from the track, and no incidents which followed or preceded. And we think that that is the main inquiry. But we have allowed, and we think properly, that in order to show the relation of the parties they may show the fact that the policemen had interfered with William Stevens previously, and that Dudley himself, just before that, had required him to leave the track at a proper place, up by floral hall, and that he did leave, but immediately turned on to the track after Dudley had passed him and drove along the track in violation of the order and rule. We think that that is admissible ; first, to show that William Stevens knew he was violating the rule, and that he was intentionally and wilfully violating the rule, and that Dudley knew that he had, and went down there knowing that if Stevens could escape from the immediate order of the police he would violate the rule — had done it just before.” * * * “You will determine from all this evidence what was the manner and method of that team’s turning off on to the grass-ground. If Dudley only required him to leave and not to go any longer down that track, and if it was left entirely to the discretion of Stevens as to the method of leaving, then if in casting his eye on to this bank he considered that it was not safe to go up, loaded as he was, and that he ought to ask his women to step out before attempting it, he should have done so, although he was required to leave. Yet if the manner of leaving was all within the power and control of Stevens, he should have exercised his discretion and gone off in a safe and prudent manner, had every one got out of the team before attempting it, if necessary, which could be done, if he had control of his team, in a moment. But if Dudley forced the team up the bank by whipping it, and forced it info a speed which necessarily threw them out when they went off, why, then it would be the act of Dudley, and for which he might be responsible.” * * * “ Was it such an act that a reasonably prudent man would anticipate, that the natural and probable result of requiring that team to go out of the track at that place would be to set runaway horses loose into a crowd of-people, that that would be the natural and reasonable course of events ? Or was it rather an accident which might occur once in a thousand times, and not reasonably to be expected as a consequence of that act requiring William Stevens’ team to leave.</p> <p>Now, Mr. Dudley does not stand as an insurer. But he is to be held, though in the right of requiring William Stevens to leave, to exercise his duty in a reasonably safe’manner, and he is liable for the natural consequence of his acts, that is, what reasonably might be expected to occur; what he must suppose would be the result of his turning this team out.” * * * “Was the defendant guilty of a wrong in the manner of requiring this William Stevens to leave the track ? If so, did he do an act which a person thus acting must have adjudged, would, in the natural course of events, be the natural consequence of that act, to set those horses loose, adrift, into the crowd, and cause them to run away ? 'If not, then there is no recovery.”</p> <p>The court erred in admitting testimony to show the transactions between William Stevens and the policemen and this defendant prior to turning Stevens off the track. Conkling v. Thompson, 29 Barb. 220. The only question was whether the defendant acted with reasonable care and prudence in turning William Stevens’ team up the bank at the time and place when it was done, taking into consideration the character of the hors.es and the number of persous in the wagon, the height of the bank, and the nearness of the wagon to the bank; and that single question was the only one for the jury to try.</p> <p>The court erred in excluding the testimony of William Stevens, offered in rebuttal; he was not used in the opening.</p> <p>The rule does not require the plaintiff to anticipate all questions that may arise on the defence not put in issue by the pleadings; and we insist that it does not come within the rule or the discretion of the court.</p> <p>There was error in the charge as to the defendant’s • liability for his negligence. It. is not what the defendant anticipated would be the result of his action..</p> <p>The law is well settled in this State that if a man does a voluntary act that he is not by law required to do, he is answerable for all the consequences of his acts whether a reasonable and prudent man would anticipate it or not. If he voluntarily sets the machinery in motion he is liable for the consequences whether a prudent man would anticipate the effect or not. Underwood v. Ilewson, I Str. 569; Wright v. Clark, 50 Yt. 130 ; Vincent v. Stinehour, 7 Yt. 62 ; Bradley v. Andrews, 51 Yt. 530 ; Morrill v. Ii. Ii. Co., 54 Yt. 200; Binford v. Johnson, 22 Law Reg. 50 (Sup. Ct. Ind., toy pistol case); Lake v. Mulligan, 62 Me. 240; Whar. Neg. ss. 12, 18, 21 ; Muldowney v. Ii. Ii. Co., 36 Iowa 462; Higgins v. Dewey, 107 Mass. 494; Perley v. H. li. Co.,' 98 Mass. 414; 4 Otto. 469; Hoyt v. Jeffers, 30 Mich. 200; Ii. It. Co. v. Stout, 17 Wall. 657; Stebbins v. Vt. Gen. R. JR. Co., 34 Yt. 464; ILrippen v. Bixby, 12 Reporter 338 (Sup. Ct. Minn.); Wilch v. Durand, 36 Conn. 182 ; Carter v. Towne, 98 Mass. 567 ; Cole v. Fisher, 11 Mass. 136 ; Lyman v. Union B. 0., 114 Mass. 83 ; Hawley v. Steele, 23 Eng. Rep. 120 ; 7 Wall. 44 ; Dickerson v. Boyd, 17 Pick. 78.</p> <p>.The testimony objected to was clearly admissible to show to the jury the general situation and surroundings in order that they might determine whether the defendant, in causing the horses to be turned from the track in the way he did, and at the place he did, acted with due care and prudence.</p> <p>William Stevens’ testimony was not admissible under Rule 23 of Washington County Court, which is as follows: “ The plaintiff, after having rested at the opening of the cause, will not be permitted to give general evidence in support of the case made in the opening, but will be confined to evidence legitimate to rebut the evidence given on the part of the defence.” See Pratt v. Bawson, 40 Yt. 183.</p> <p>The charge of the court as to the defendant’s liability under the circumstances of the case was not erroneous. We understand the rule to be that liability extends to consequential injuries, by whomsoever sustained, so long as they are of a character likely to follow, and which might reasonably have been anticipated as the natural and probable result under ordinary circumstances of the wrongful act. The damage is not too remote, if, according to the usual experience of mankind, the result was to be expected. Or, as stated by Mr. Justice Strong, in Harris v. B. B. Go., 13 Fed. Rep. 591, one is not liable for an act not amounting to wanton wrong, unless the injury ought to have been foreseen in the light of the attending circumstances. Lane v. Atlantic Works, 111 Mass. 136; Whar. Neg., ss. 78, 108, .138; McDonald v. Snelling, 14 Allen 290 ; Gerhard v. Bates, 2 El. & Bl. 490; Orandall v. Goodrich Trans. Go., 16 Fed.'Rep. 75; Scott v. Hunter, 46 Penn. St. 192; McGraw v. Stone, 53 Penn. St. 436; Fairbanks v. Kerr, 70 Penn. St. 86; Brown v. Gollins, 53 JN. H. 442 ; Greenland v. Chaplin, 5 Exch. 243.</p>

<p>[In Chancery.]</p> <p>Petition to foreclose a mortgage.</p> <p>Heard on the report of a special master, December Term, 1882, Orange County, Powers, Chancellor. Decree that the defendants pay to the orator the sum of $638, with interest and cost, or be foreclosed. It appeared that the land-in contention, prior to the deed of 1857, was owned by Betliiah, the second wife of John Morey, sr.; that she died in March, 1874, without issue; that John Morey, sr., died in 1878; that the deed from John Morey, sr., to John Morey, jr., was dated March 27th, 1875; that the mortgage in question, signed by John Morey, sr., John Morey, jr., and his wife, was dated January 2nd, 1877; that they were living on the farm at the time the mortgage was executed; that William C. Morey lived in Massachusetts; that he went through insolvency in 1870, and deceased in 1871. As to the mental capacity of John Morey, sr., when the mortgage was executed, the master found that he was about ninety years old; that he “bad become enfeebled by age, and mentally somewhat weak and childish; that he could have been easily influenced, but that he understood fully the purpose of this mortgage and the purport of it, and that there was no undue influence used to get him to execute it, but it wTas his voluntary act; and it seemed to be a reasonable one in order to procure the necessaries of life and a proper support of his family.” John Morey, jr., was mentally weak and unable to read; but the findings of the master as to him are unnecessary in view of the decision of the court. The consideration of the mortgage and the $61.17 note, mentioned in the opinion, was money, goods and groceries, furnished the family of John Morey, sr. The other facts are sufficiently stated in the opinion of the court.</p> <p>It is self-evident that the mortgage could not cover the interest of William C., as he owned an undivided half. John and Rethiah had a life estate in the farm by the deed of 1857. Webster v. Webster, 33 N. II. 18; Goodright v. Barron, 11 East. 220.</p> <p>So far as the condition of sale is concerned, we submit that Rethiah was the only person who could take advantage of it, and that all that was left to her husband when she died was simply a tenancy for life by the courtesy. Logan v. Caldwell, 23 Mo. 373; Adams v. DunJcle, 19 Yt. 383; Shuman v. Dodge, 28 Yt. 26.</p> <p>The deed of March 27th, 1875, however, tended still further to restrict his rights; for in this he only reserved a life estate.</p> <p>The reservation is in the following words: “ Provided, nevertheless, that I retain and reserve the entire use and control of all said property during my natural life, to use and dispose of as I see fit.”</p> <p>Under the deed, no one had the power to mortgage; it was simply a power of sale.</p> <p>Conditions in deeds are to be construed strictly, and most strongly against the grantors Adams v. Frothingham, 3 Mass. 352; Worthington v. LLylyer, J Mass. 196; Watson v. Boylston, 5 Mass. 411; Cocheco v. Whittier, 10 N. H. 315 ; 'Mills v. Gatlin, 22 Yt. 98. This same rule is true as to conditions and reservations. Wyman v. Farrar, 35 Me. 64.</p>

Ejectment. Trial by jury, September Term, 1882, Washington County, Redeield, J., presiding. Yerdict for the plaintiff. Held: and so instructed the jury, that the defendant, having learned of the said conveyance to the plaintiff, was put upon liis inquiry as to the terms of such deed although the same was not recorded, and that by the terms of such deed the true westerly line of said three-acre piece was the Arms line and that said deed from Newcomb to the…

[In Chancery.] Appeal from the decree of the Court of Chancery of Washington County. Redfield, Chancellor, in rendering a final decree after the cause came back from the Supreme Court allowed interest from the date of the original decree.

<p> Married Woman. Necessaries. Master. Practice. </p> <p>1. Necessaries, a mixed question of law and fact. In a suit in chancery against a married woman to charge a note signed by herself and her husband upon her separate realty, it is a mixed question of law and fact, and for the master to find whether the'articles for which the note was given were necessaries.</p> <p>2. Master. Practice. It doubtless would have been better for the master to have stated all the facts found by him from which he found the fact that die articles were necessaries; but it was not legal error that he did not do so.*</p> <p>3. Waiver. Unless requested in writing, R. L. s. 727, the master is not obliged to state his decision in admitting or rejecting evidence; and may treat the objection as waived.</p> <p>4. Waiver. Exceptions. Such questions are treated as waived in the Supreme Court, unless saved in the report, and insisted on in the Court of Chancery, by exceptions duly filed to the report.</p> <p>5. Recommitment. If the master should neglect to report his decision in this behalf when requested, it would be cause for recommitment.</p> <p>6. Evidence. Weigh-bill. The question being whether a note was barred by the Statute of Limitations, and this turned on the fact, whether a payment had been made at a certain time by delivering a load of hay, it was held, that the weigh-bill was admissible.</p>

<p>Debt on a decree of distribution by the Probate Court. Heard on demurrer to the plaintiff’s replication, March Term, 1883, "Washington County, Redeield, J., presiding. Demurrer sustained. The case appears in the opinion.</p> <p>The judgment of the Probate Court is conclusive as to the rights of the parties. Gollard v. Grane, Brayt. 18; Gidding (& Wife v. Smith, 1 D. Chip. 420; Lawrence v. Bnglesby, 24 Yt. 42; Tryton v. Tryton, 16 Yt. 313. The plea does not set forth any defence that has arisen since the judgment of the court fixing the amount due the plaintiff. The plea alleges that the plaintiff owed the estate before the decree was rendered; if so, why did the defendant permit this ? The court ordered the defendant to pay the plaintiff; and this must stand until some court makfes a different order. The court did not order him to pay himself; and it can be no justification that he has done differently than ordered. There were but two ways open to the defendant: one to bring a suit; and the other to plead in offset. Considered as a plea in offset, the plaintiff’s plea is g'ood; but for any other, it is bad. There is no allegation in the plea that the question of indebtedness was not heard by the Probate Court; the presumption is that it was heard, and judgment rendered for the balance. It is a plea in offset; if so, the plaintiff has a right to plead as many pleas in reply to it as he chooses. B. L., ss. 922, 923. Either of the replications is sufficient to meet a bad plea. If the statute is not a bar, the replication is not double. Chit-. PI. 226 ; Steph. PL 248.</p> <p>The replication is double. Gould PL, c. 8, ss. 19, 20, 21; 1 Chit. Pl. 680, n. It is a plea of payment, and has no resemblance to a plea in offset. Chaplin v. Currier, 49 Vt. 48. The Statute of Limitations is not a bar so but that the administrator can apply what is due the estate from the heir in payment of theheir’s distributive share. Higgins v. Scott, 22 E. C. L. 113.</p>

<p> Highway. Injury on Bridge. Notice. Evidence. Cross-Examination. </p> <p>Notice. The notice alleged: “He says that said highway, to wit, said bridge, was insufficient and out of repair, in this that stringers to said bridge were decayed and broken and the planks covering said bridge were so worn and decayed that they would not and did not sustain the weight of the horse which he was then driving over said bridge, but gave way and let his said horse through said bridge, throwing him from the carriage in which he was then riding, which was the cause of said injury; and he says that the injuries he at that time sustained were to his stomach, bowels, liver, kidneys, legs, hips, shoulders, arms, back, and spine, and a breach low down on the left side, and was such that a discharge of bloody mucus has followed from his bowels, and he has become lame and stiff in back and limbs, from the effect of which he is wholly incapacitated for labor of any kind, and has been confined to the house, and has suffered great pain.” It appeared by evidence that there was a hole in the plank through which the horse stepped. Held,</p> <p>1. That the notice as to the defect was sufficient.</p> <p>2. Also as to the .injuries; and that injuries subsequently developed and occasioned by the injuries described, could be recovered for.</p> <p>3. That evidence was admissible to show that the plank, adjoining the one through which the horse stepped, “looked .old and rotten,” although there ivas no evidence tending to show that its bad condition contributed to the accident, especially under the ruling of the court, directing the jury to consider it with the evidence tending to show when the planks were put on to the bridge, as'evidence tending to prove that the plank in question was defective.</p> <p>4. Hearsay. Cross-Examination. The answer of a witness, on cross-examination, that he heard afterwards, and thought on the same day that the accident happened, that the plaintiff liad been thrown off! from a hearse, although hearsay was not prejudicial to the defendant, as it had no tendency to show whether he had been thrown off or not.</p> <p>5. A question, put by the plaintiff on cross-examination to one for the purpose of impeaching another of the defendant’s witnesses, inquired of as to new matter, may or may not be error, depending on the answer; if impeaching, it would be error; if corroborating, not error.</p> <p>6. A physician, as an expert, had examined the plaintiff in 1879-80, and during the trial, and was properly allowed to testify, that he did not think his symptoms, as a whole, complained of in 1879, were inconsistent wdth those at his last examination.</p> <p>7. The question to a physician, “How well satisfied are you that the plaintiff is suffering from nervous injury,” is objectionable in form, in assuming that the plaintiff was suffering; hut when the answer did not tend to show such suffering, it did not prejudice the defendant.</p> <p>8. A witness was properly allowed to state: “ Hr. S. asked the plaintiff if he ever saw any signs of having a rupture about him; he (plaintiff) said he never did,” as it tended to impeach Dr. S., who liad in substance denied having had such conversation.</p>

<p>Trespass de bonis. ■ Flea, general issue, and notice of justification under certain extents issued against- the plaintiff, a delinquent tax collector of the town of Hartland. Trial by court, December Term, 1882, Windsor County, Taet, J., presiding.</p> <p>The only question raised in the court below was, whether s. 1556 R. L., exempting certain property from attachment and execution, exempted the same property from extents. The extent was issued August 14th, 1880.</p> <p>Section 1556 R. L., does not apply to extents. Attachment and executions are remedies in suits inter partes, and according to the common law; but an extent is issued in another and quasi criminal class of cases, not inter partes, but under statutory provisions. Gr. S. c. 84, ss. 49, 52; per Ross, J., In re Hackett, 53 Yt. 354. The exemption statutes have never in this State included extents. See Act of. March 7th, 1797, Tol. St. MO ; Slade C. L. 405; R. St'. 376 ; Com. St. 469 ; G. S. e. 84. See also Griswold v. Rutland, 23 Yt. 324; Cooley Tax. 34, 496, 504; Waldron v. J^ee, 5 Pick. 328 ; Barnes v. Ilall, 55 Yt. 420 ; Hutchins v. Chambers, 1 Burr. 588 ; Sherwin v. Bugbee, 16 Yt. 439 ; Daniels v. Nelson, 41 Yt. 166. Taxes are not founded on contract; but towns make an arbitrary and “authoritative exaction.” Daniels v. Nelson, 41 Yt. 166; Johnson v. Howard, 41 Yt. 122, 126; Webster v. Seymour, 8 Yt. 135. Neither does the assessment of a tax “ create a debt which can be enforced by suit,” according to the common law. Shaw v. Peckett, 26 Yt. 486 ; Hill. Tax. ss. 25, 26. All the property of the delinquent tax-payer is liable to distress, except that specially exempted. A delinquent collector stands under the law with no exemptions. Brooks v. State, 54 Ga. 36; Com. v. Lay, 12 Bush, (Ky.) 283; Com. v. Cook, 8 Bush, 220. See 1, Kent Com. 460; 1 Bl. Cbm. 260 ; United States v. Knight, 14 Pet. 315.</p> <p>It is said the same property may be taken on an extent as on a warrant for taxes. If so, no case has made it clear just what may be taken for taxes. The statute uses the word distrain. But at common law tools of one’s trade were exempt from distress for the sake of the public. 3 Bl. Com. 10 ; 3 Bac. Abr. 171; Com. Dig. 479; Dan. Abr. p. 35. But by what analogy can it be maintained that the same property can be taken on an extent that can be on a warrant? The statute gives no such intimation, but speaks of this execution as of others. G. S. c. 84, s. 51; G. S. c. 33, s. 2; G. S. c. 12, s. 60. The exemption statutes have been applied to the trustee process. Parks v. Cushman, 9 Yt. 320; Waitv. Brewster, 31 Yt. 512. And such statutes in all courts, receive a liberal construction. 7 Yt. 465. But there is no need of construction ; for the statutes clearly embrace extents. G. S. c. 47, s. 13 ; Act No. 39, 1866. The exemption is “from attachment and execution;" but an extent, or extendi facias, is a writ of execution. 2 Tidd Pr. 1088.</p> <p>Previously to the use of this form of execution there was none by which the creditor could obtain the use of all the debtor’s land; by the levari fa. only the profits could be-taken ; by the writ of elegit, only a moiety of the land. 3 Bac. Abr. 689; 2 Tidd Pr. 1073.</p> <p>The extent was introduced in behalf of the crown, by which form of execution land could be taken and appraised to the creditor at its full value.- It was originally an execution for the debt of the king, by extendi facias. 4 Com. Dig. 226 ; 2 Tidd Pr. 1087; 3 Bl. Com. c. 26. At common law things necessary for the support of the family could not be taken on an extent. 2 Tidd Pr. 1098. The extent under our statute is issued as a final execution to carry into effect the judgment of the court. Gr. S. c. 84, ss. 50, 52; Griswold v. Rutland, 23 Yt. 324; In re Ilackeit, 53 Yt. 354. The security of the town is in the constable’s bond. In the recent case of Finle v. O'Neil, in IT. S. ¡Sup. Ct., (15 Reporter, 33,) it was held that the homestead exemption laws applied as against the State and the United States, except as to taxes expressly excepted by statute.</p>

<p> Master and Servant. Servant as Member of Family. No Implied Promise. Burden of Proof. Presumption. </p> <p>1. The question being whether the female plaintiff prior to her marriage worked for wages or only as a member of the defendant’s family for her support, Held, that it was incumbent on the plaintiffs to prove an express agreement, or, such a state of facts as satisfactorily showed that both parties at the time expected and understood that her services were to be paid for.</p> <p>2. The plaintiff testified that the defendant told her to stay there and he would do well by her, that he wanted her to work for him, that he was going to pay her, Held, that this tended to support the plaintiffs’ claim, and therefore the defendant was not' entitled to have a verdict directed in his favor.</p> <p>3. Charge to Jury. Singling out and giving undue prominence to certain facts is improper in a charge; thus, the court properly refused to charge that one of the defendant’s statements, selected out of several, did not constitute proof of a contract.</p> <p>4. Receipt. A charge of the court (which see) as to the conclusiveness of a receipt is sustained; also the court is sustained in omiting to charge as to the effect of non-payment, at the ;time, of the sum named in the receipt.</p> <p>5. Duress. The court properly refused to charge as to duress, when there was no evidence tending to show it.</p> <p>6. No Implied Promise. Tlie plaintiff left tlie defendant’s family after living in it as a member for several years, and in a few weeks returned. Held, that the law would not imply a promise to pay for work done thereafter; that the plaintiffs must prove an express contract, or facts that indicated that both parties expected she was to be paid; and that the same rule obtained although it was agreed when she left, that the family relation should cease.</p> <p>7. Burden of Proof. The burden of proof was on the plaintiffs to produce evidence enough to establish the contract and overcome the presumption that she was at work for her support.</p>

<p> Trover. Chattel Mortgage. Tenants in Common. </p> <p>S. and W. were tlie owners of certain furniture. S. executed to the plaintiffs a chattel mortgage of his undivided half of the same to secure them for having signed a note with him as sureties. W. was in possession of the whole furniture; and while so in possession caused S.'s half to be attached on a debt against him; but the property was not removed, and in a few weeks, though after the commencement of this suit, the attachment was released. Held, that the plaintiffs at best were only tenants in common with W.; that W. had a right to the possession equal to that of his co-tenants; and that an action of trover would notlie against the officer serving the writ, as his acts did not amount to a conversion.</p>

Action on the case for the default- of the defendant’s, deputy. Heard on a referee’s report, September Term, 1882, Rutland County, Veazey, J., presiding. Judgment pro forma for the pláintiff to recover $332.54, — the amount of the plaintiff’s execution, the levy of which was void. There was a mortgage on the land for $516.34. The return on the execution stated that the appraisers appraised the land subject to said incumbrance at $364.58.

Action for injuries received on the highway. Heard on demurrer to the declaration, September Term, 1882, Veazey, J., presiding. Demurrer sustained.

<p>Action on the case to recover damages for injuries received by Mary Welsh, the wife of the plaintiff, Michael Welsh, caused by slipping down upon the ice at the South West corner of Center and Wales streets, in the village of Rutland, on the 26th day of February, 1881. Trial by jury, March Term, 1882, Yeazey, J., presiding. The jury failing to agree, the court directed a verdict for the defendant. The facts are sufficiently stated in the opinion of the court.</p> <p>There was no variance. Hutchinson v. Granger, 13 Yt. 386 ; Skinners. Grant, 12 Yt. 456; Rob.Dig.p.739,s.47; 15Yt.643 ; 18 Yt. 87; 40 Yt. 648 ; 53 Yt. 546. The distinction is plain between the responsibilities of towns for acts done in their public capacity in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character as in the management of property or rights voluntary held by them for their immediate profit as a corporation. Oliver v. Worcester, 102 Mass. 499. The liability of municipal corporations in cases like this is well estab~ lished, 1 Dill. Mun. Cor.', s. 10; 2 lb.- s. 761 ; 91 U. S. 540 ; 30 Conn. 118; 34 Ib. 1; 40 lb. 406. Cities and towns are liable for negligence like other corporations in managing or dealing with property or rights held by them for their own advantage. 2 Dill. Mun. Cor., ss. 778, 780; 29 Yt. 19; 31 Yt. 226; 49 Barb. 580 ; 60 Barb. 378 ; 1 Denio, 595 ; 3 Hill, 612; 61 Barb. 511; Winn v. Rutland, 52 Yt. 481. The liability of municipal corporations extends to traveling across as well as along the sidewalks. 105 Mass. 324. And it is their duty to keep streets and sidewalks safe for travel night and day. 2 Dill. Mun. Cor., ss. 551,789,791; Manning v. Bowell, 130 Mass. 21. A city is liable for the acts of its agents previously authorized or after-wards ratified. 19 Pick. 511; 2 Dill. Mun. Cor. ss. 764,772; 131 Mass. 23; Rob. Dig. p. 188, s. 84; 40 Yt. 442 ; and this is so, if done by officers of the fire department. 2 Dill. Mun. Cor. 772; 2 Daly, 242; 3 Hun. 588 ; Leon v. Boston, 106 Mass. 451.</p> <p>The rule or maxim of respondeat superior does not apply.</p> <p>The duty of providing protection against fire is performed by the defendant and its officers, for the general good of the public, in which the defendant has no particular interest and derives no benefit in its corporate capacity. The officers under whose direction the hydrants were thawed out, acted as officers charged with a public service. Dill. Mun. Cor. 774; Stafford v. Wew Bedford, 16 Gray, 297; Fisher -v. Boston, 104 Mass. 87; Taintor v. Worcester, 123 Mass. 316; Jewett v. Wew Shaven, 38 Conn. 368; 38 lb. 228; Hayes v. Oshkosh, 33 Wis. 318; Pray v.' Jersey Oity, 32 N. J. L. 394; Hill v. Boston, 122 Mass. 344; Larrabee v. Peabody, 128 Mass. 561; Clark v. Waltham, lb. 567; French v. Boston, 129 Mass. 592; Maximilian v. Mayor, 62 N. T. 160.</p> <p>A municipal corporation in the exercise of power which it possesses for public purposes, and which it holds as part of the country, enjoys the exemption of government from responsibility for its own acts and the acts of its officers deriving their authority from the sovereign power. Stewart v. City of Wew Orleans, 9 La. Ann. 461.</p>

<p>Assumpsit to recover the cost of relieving one Daniel Leland, an alleged pauper. Trial- by jury, September Term, 1882, Orleans County, Powers, J., presiding. Verdict for the plaintiff:</p> <p>The court charged, in part:</p> <p>“ In order for the plaintiff to recover for these expenditures it must show to you by a fair preponderance of the evidence that this Daniel Leland was a poor person, fallen in need of help ; that he had a legal settlement in the town of Sheffield, and that these expenditures were incurred in good faith in his proper support. The first question which will naturally present itself to you for consideration is, had Daniel Leland a legal settlement in the town of Sheffield % * * *</p> <p>In order for a person to gain a settlement by a residence of seven years under our statute it is necessary that that person come to reside in the town to be charged with the intention of residing there — making it his home and residence; that he remain there with such intent for the.period of seven years, and that in addition to that, he shall have come from some other town in the State in which he had a legal settlement. To illustrate what is meant by this rule: A person coming into Vermont from another State and residing for the period of seven years in any town does not gain a legal settlement in that town, because, as it is said in some of the cases, there is no starting point. He must come from another town in the State in which he l>ad a settlement,'and reside in the new town of his residence for seven years in order to acquire a residence by a continuous residence of seven years; that is the present rule, and was the law at the time this residence in Sheffield was claimed.”</p> <p>The other facts are sufficiently stated in the opinion of the court.</p> <p>There was error in the charge; because, according to it, the plaintiff’s right of recovery is made to depend solely upon whether or not “ Daniel was a poor person, fallen in need of help.” The ruling is in direct contradiction to repeated decisions. Berlin v. Worcester, 50 Vt. 23; Danville v. Sheffield, 50 Vt. 243 ; Stamford v. lieadsboro, 46 Vt. 611; Pittsford v. Chittenden, 44 Vt. 382; R. L. s. 2818. There was error in the charge as to what was necessary to gain a settlement by residence. R. L. s. 2811, subdiv. 8; Ludlow v. Landgrove, 42 Vt. 13Y; Randolph v. Braintree, 10 Vt. 444; Anderson v. Anderson, 42 Vt. 350; Johnson v. Huntington, 1 Day 212 ; Gardner v. Farmingdale, 45 Me. 541; Warren v. Thomaston, 43 Me. 406; Corinth v. Bradley, 51 Me. 540; Holyolce v. Haskins, 5. Pick. 20.</p> <p>A person having a settlement in any town in this State, and of full age, who resides in any other town in this State, for the term of seven years, and during said term maintains himself and family, and does not become chargeable to either of said towns, thereby gains a settlement in the town in which he so resides. The intention with which such residence was commenced has never been held to be material, except in proceedings to remove said person, to the town of his legal settlement before the new settlement had been acquired by residence of seven years. See above authorities.</p> <p>There was error in the charge as to the pauper’s mental capacity, emancipation, etc. ' Under the charge, if the jury found that Daniel was physically weak to such an extent that it was fit that he should remain with his parents after he was twenty-one, they must find that he could not gain a settlement in Westmore by residence there, regardless of any measure of intelligence possessed by him. Sazen v. Smith, 21 Yt. 123; Park r. Tabor, 22 Yt. 222; Dodge v. Stacy, 39 Yt. 565. There was error in admitting the deed produced by Lilley. 1 Green. Ev. (12 ed.) ss. 21, 144, 570, 573. The question asked as to whether the witness considered the pauper a non compos person, was improper. The witness — not an expert — was allowed to state his opinion, instead of facts, upon a vital question.</p> <p>There was no error in the charge as to the emancipation of the pauper, or as to the pauper’s gaining a settlement in Westmore. The general rule is that children become emancipated when they arrive at the age of twenty-one years. But children, who, from want of understanding, are incapable of taking care of themselves, do not become emancipated at the age of twenty-one, if they continue under the control of their father. Richardson, Oh. J., in Or ford v. Rumney, 3 N. H. 331. Emancipation, under the pauper law, exists when the minor contracts a new relation inconsistent with being a part of the family. Aldice, J"., in Sherburne v. Sartland, 37 Yt. 528. See Sardwick v. Pawlet, 36 Yt. 320; Morristown v. Fairfield, 46 Yt. 33; Upton v. Northbridge, 15 Mass. 237; Taunton v. Middleboro, 12 Met. 35; Poultney v. Glover, 23 Yt. 328; 4 Conn. 373; 16 N. J. L. 119; 3 Pick. 173; Croydon v. Sullivan, 47 N. H. 184; Gilma?iton v. Sanbornton, 56 N. H. 336. By the charge of the court the jury were, to say the least, required to find as low a grade of mental capacity in the pauper as was shown in the case when it was before the court on a petition for a new trial. And we claim from that decision, the pauper was never emancipated, and that he was incapable of gaining a settlement in Westmore, by reason of mental imbecility, the facts in relation to his stay in Westmore being undisputed, and appearing the same on both trials. Brownington v. Charleston, 32 Yt. 411; 22 E. C. L. 326; 1 Boot, 196. The case is exactly parallel with Brownington v. Charleston, supra. See Dan-ville v. Putney, 6 Yt. 512; Sutton v. Cabot, 19 Yt. 522. Again the pauper could not have gained a settlement in West-more, because he did not maintain himself. B. L. s. 2811, sub-div. 8. All the cases agree that the residence must be sui juris. Boyce, Ch., J., in Woodstock v. Hartland, 21 Yt. 56; Bedeield, J., in Brookfield v. Hartland, 10 Yt. 424. There was no error in the action of the court as to the defendant’s requests. Drake v. Curtis, 1 Cush. 395 ; Peterson v. Farnum, 121 Mass. 476.</p>

<p> Larceny. Insurance Agent Misappropriates the Funds of Company. Constitutional Law. Evidence. Memorandum. Entries. Copy. Intent. Charge to Jury. Bequests. </p> <p>1. The statute, No. 1, s. 17, acts of 1874, (R. L. s. 3616), providing, tliat, if an insurance agent appropriates to his own use any money received by him as such agent, and does not pay over the same, etc., he shall be guilty of larceny, is constitutional.*</p> <p>2. The respondent and one B. were insurance agents and partners. The indictment made no mention of the firm, but was found against the respondent alone in relation to business done in the name of tlie firm. Held, that a copy of the commission, the original having been lost, appointing the respondent and his partner agents, was admissible to prove the agency charged.</p> <p>3. Memorandum. In order to render an entry made by a deceased person admissible, it must be proved, that it was in his handwriting, that it was a part of his duty to make it and in the regular course of business, and that he was dead.</p> <p>4. Copy OF Account inadmissible, the loss of the original booh not being shown. One P. was a sub-agent of the insurance firm or company to which the respondent belonged. A copy of P.’s account, showing the transactions between him and the firm, without proving the loss of the original book, was not admissible for any purpose; and the error can be taken advantage of by merely objecting to its admission, without stating a reason.</p> <p>5. Entries in Bank Book. An assistant cashier cannot testify to entries made in the bank books prior to his employment, where it did not appear at what time they were made, or who made them, or in whose handwriting, or that he had any personal knowledge of them.</p> <p>6. The respondent as an insurance agent was charged with the larceny of money from a foreign insurance company; Held, that it was not necessary for the prosecution to prove that the company was legally doing business in this State.</p> <p>7. Notice. The neglect or refusal to pay over the money within thirty days after notice constitutes the crime. The sheriff, having the respondent in custody, duly authorized by an agent of the company, could give the requisite notice; no particular sum need he named; nor the authority to give the notice be stated. ■’</p> <p>8. There was but one offense, although several premiums were collected.</p> <p>9. It was not important to inquire whether the respondent’s partner had appropriated any of the insurance money to his own use.</p> <p>10. The court charged correctly as to the respondent’s commingling the money with his own.</p> <p>11. Intent. The respondent may be guilty under this statute although he may not have had a fraudulent and felonious intent to steal, or embezzle.</p> <p>12. Charge. Bequests. It is the duty of the court to charge fully upon all tlie points of law. All rights can be saved without any requests. Bequests may be of great aid to the court, if precise and certain; but when improperly drawn, they should not be considered.</p> <p>13. Practice. Order of Triad. It was in the discretion of the court to allow the prosecution to examine a witness after the respondent had been directed to put in his defence; and especially so, as the respondent had no testimony to offer, and notice was given when the State rested that it was expected to use the witness.</p> <p>14. Beading Authorities to Jury. The better rule is to prohibit it entirely; but it is a matter wholly in the discretion of the trial court.</p> <p>15. Motion to set aside Ybrdict'oii the ground that the officer having the jury in charge was present during their deliberations, was denied, it not appearing that he had any conversation with the jurors.</p> <p>16. No. 1, s. 17, acts of 1874, (B. L. s. 3616), iusurance agent appropriates funds of the company to his own use, construed.</p>

<p>[In Chancery.]</p> <p>Bill in equity for the construction of the will of David Carpenter ; for an accounting by the administrator; and to charge the administrator with all losses while the estate was in his hands. Heard on bill, answer, traverse, and report of special masters, September Term, 1881, Washington County. Eedfield, Chancellor, in his decretal order, construed the will to • mean that although the widow remarried, she acquired the title and right of disposal of the property in her discretion, with the provision that what should remain at her decease should be expended in building a monument, holding that the second item in the will was repugnant to the first, and, therefore, void. The administrator was allowed certain costs, but was charged with the loss of the §1,000. The facts are sufficiently stated in the opinion.</p> <p>The burden of proof is on the orator to show negligence. Doolittles. Qooldn, 10 Yt. 265; Gates v. Adams, 21 Yt. 70. The answer is evidence. Blaisdell v. Bowers, 10 Yt. 126 ; Rich v. Austin, 40 Yt. 116; Adams s. Ada'ms, 22 Yt. 50. The rule in all the cases is, that an administrator must act with ordinary care and prudence, taking the same care of the trust fund that a prudent man does of his own. Feagan v. Kendall, 43 Ala. 628 ; Gould v. Ilayes, 19 xlla. 438 ; Merritt s. Merritt, 62 Miss. 150 ; Kee s. Kee, 2 Grat. 116 ; ^Hiitney s. Reddicord, 63 111. 249; Smith s. Byrns, 41 Ga. 4¿59; Milcell s. Milcell, 5 Eich. Eq. (S. C.) 220; Noble s. Jones, 35 Tex. 692.</p> <p>The burden of proof being on the orators it was incumbent on them to show that the debt could have been collected by the exercise of oi-dinary care and - diligence. Rubotton s. Morrow, 24 Ind. 202; Irwin’s Appeal, 35 Penn. St. • 294; Shaffer’s Appeal, 46 Penn. St. 131; Kelly’s Appeal, 8 Penn. St. 288. See Authorities cited in 2 Jar. Wills (ed. 1881) p. él;''10 Barr, 350 ; 35 Penn. St. 100 ; 19 Ohio St. 24; 3 Wend. 415 ; 34 Ala. 437; 12 Wend. 338; 7 Conn. 568 ; 10 Barb. 350. The precise question was before the court in Gathoun’s Estate, 6 Watts (Penn.). 185, and in Christy v. McBride,2 111.288'. Ordinary care and prudence is the care and diligence which a prudent man exercises under like circumstances. Briggs v. Taylor, 28 Yt. 180; Folsom v., Underhill, 36 Yt. 580; Reynolds v. Burlington, 52 Yt. 300; Olmes v. Bridgman, 37 Yt. 28; Spaulding v. WahefielTs Est., 53 Yt. 660. The findings of the masters are final; and these clearly exonerate the defendant.</p> <p>Will. The first clause gives the property absolutely to the wife. The second clause was void. • Will. Ex. (7th ed.) pp. 1267, 1376; Walker v. Vincent, 19 Penn. St. 369; Nagles' Appeal, 33 Penn.' 89; Kepplds Appeal, 53 Penn. St. 211; 27 111. 33; 6 Rich. Eq. 138; 4 Gray, 368; 6 Mass. 169. All contracts in restraint of marriage are void. Doe v. Freeman, 1 Term, 389. The defendant is liable for the loss of the $1,000 and interest, having allowed it to remain four years in the hands of an embezzler without note or mortgage. Smith v. Smith, 4 Johns. Ch. 281; Ad. Eq. 55; 2 Story Eq.- s. 1274, n.; 1 Per. Tr. ss. 452, 454 ; 2 Lead. Gas. Eq. part 2,1760,1667, 1800 ; 5 Yes. 794; 1 Russ. & M. 35 ; 2 lb. 89.</p>

Assumpsit brought in the City Court of Burlington by the executor of Sidney Barlow’s will against the defendant, in which action Marion Cushing was cited to appear as claimant under sec. 3578, R. L.… Held: that B still continued to be depositor. Rex v. Savings Ranh, 3 N. & M. 418; 8 Jac. Fish. Rig. 12,011.

[In Chancery.] Question of damages on dissolution of an injunction. Heard, February Term, 1883, Orleans County, Eedeield, Chancellor, denied a reference moved for to ascertain the amount of damages, and decreed that the defendants recover only $500 as injunction damages, the amount of the bond. The case is stated in the opinion of the court.

Habeas Corpus. The prisoner set forth in his petition that the libel for which he was sued by Goddard was true ; that the damages claimed in the writ were excessive; and that he was unable to procure bail. Placing the ad damnum in the writ at $30,000, was in effect and in law a denial of bail; because it was demanding excessive bail. H. S. Con. Art. 5 ; Yt. Con. Art. 10 ; R. L. s. 1343 ; People v. Liscomb, 60 N. T. 359 ; 2 Hawk. P. C. ss. 5, 13.

Trespass with a count in case for poisoning the plaintiff’s cattle. Plea, not guilty. Trial by jury, September term, 1882, Rutland County, Yeazey, J., presiding. Yerdict and judgment for the plaintiff.

General Assumpsit. Heard on an agreed statement, March Term, 1883, Washington County, Redeield, J., presiding. Judgment for the defendant. The facts are sufficiently stated in the opinion of the court. The balance due Sept. 19, 1876, was entitled to draw interest from said date to Feb. 11, 1880, and interest from that date; and the defendant is liable for the amount. Vt. dt Can. R. R. Co. v. Yt. Cen.

(In Chancery.) Bill In Chancery. Heard, March Term, 1883, on bill, answer and traverse. Bedfield, Chancellor, ordered an account to bo taken of the value of the real estate named in the bill to ascertain whether anything should be offset to the defendant’s claim.

<p>Action on the case, brought upon chapter 102 of the General S tatutes. Plea, general issue, and notice that the defendant was administrator of the estate of Levi Boutwell, and had no interest, personally, in the fence in question; that the fence divided the lands of the plaintiff and of said estate, etc. Heard by the court, March Term, 1881, "Washington Comity, Tart, J., presiding. Judgment for the plaintiff. On trial no question was made but that the fence was upon the dividing line between the lands of the plaintiff and the lands of said estate; or that the defendant was administrator of the said estate. The other facts are sufficiently stated in the opinion.</p> <p>We submit:</p> <p>The administrator in possession of lands as administrator cannot be made personally liable for building a division fence in any case; and he cannot be made liable, as administrator, beyond the funds in his hands. Thayer v. Patridge, 47 Yt. 423; Bust v. Low, 6 Mass. 90; Blands, Admr.,Y. Olmstead, 23 Ba. 316; Bradbury v. Gilford, 53 Me. 99; Burr v. Llomor, 12 Neb. 483; Knox v. Tucker, 48 Me. 373 ; Kllis v. Ellis, 39 Me. 526 ; Webber v. Closson, 35 Me. 26; Sturievant v. Merrill, 33 Me. 62; Walker v. Watson, , 8 Ala. 493; Stallcap v. Bradley, 3 Cold. (Tenn.) 406.</p> <p>It was the defendant’s duty to contribute equally with the plaintiff in building the partition fence between them. The division of the line fence was made while the relation of adjoining owners or occupiers existed and was binding as long as that relation existed, or until revoked. They agreed to it and acted upon it.</p> <p>An occupier is bound by statute to build one-half of a division fence. Saxton v. Bacon, 31 Yt. 545; Town v. Lamphire, 36 Yt. 102; TupperY. Clark,‘W Yt. 200; York v. Davis, 11 N. II. 241; Tewksbury v. Bucklin, 7 N. H. 518 ; Guyer v. Stratton, 29 Conn. 421; Bush v. Brainard, 1 Conn. 78. By appearing and pleading the general issue the defendant waives any objection to the plaintiff’s right to sue him upon the cause of action set forth in the declaration, lloldridge v. Holdridge's JEst., 53 Yt. 546. The defendant is personally liable. (Jilear v. SJceeles, 22 Yt. 152; Powers v. Douglass, 53 Yt. 475; liashell v. Bowen, 44 Yt. 585.</p>

<p>Trover for a printing press. Plea, the general issue with notice. Trial- by jury, Windsor County, May Term, 1882, Rowell, J., presiding.</p> <p>The court on the testimony of the plaintiff directed a verdict for the defendant. The case appears in the opinion.</p> <p>The note was valid in the hands of the plaintiff, and binds Pratt to pay to Mm the amount advanced. Bank of Burlington v. Beach, 1 Aik. 62; B mlc of Middlebury y. Bingham,, 33 Yt. 621, 634; Bank of Montpelier v. Joyner, lb. 481; Keith v. Goodwin, 31 Yt. 268; Bank v. Humphrey, 36 Yt. 554; Rob. Dig. pp. 105, 190. But the mortage is an incident of the debt, and should be held to secure its payment. Keyes v. Wood, 21 Yt. 331. The plaintiff being the owner of the note should have the benefit of the mortgage. Merrill v. Merrill, 53 Yt. 74.</p> <p>The statute in respect to mortgages of personal property should be construed in reference to the law in respect to bills and notes and the assignment of choses in action as it existed at the time the statute was enacted. The Revised Laws seem to favor such construction.</p> <p>We see no reason why one person may not take a note and a chattel mortgage to secure the payment of it to himself in trust for another, in the usual form. The property having been sold, trover is the proper remedy. Swift v. Moselj, 10 Yt. 208; Hill v. Larro, 53 Yt. 629; 38 Mich. 358 ; 71 N. Y. 61; 57 Ala. 323; 88 111. 58; 8 Hun, 566; 37 Ala. 371; 2 Wis. 322; 6 Barb. 133.</p> <p>The plaintiff is not entitled to recover unless at the time of the attachment he had the title to the press, or the right of possession. The chattel mortgage was running to Thayer, and executed according to the form of the statute. If Tarbell had any right to the property, it must have accrued through the Thayer mortgage; and under no circumstances whatever, could Tarbell maintain an action in his own name, for the conversion of the property, imtil a valid mortgage had been assigned to him by Thayer, and the assignment recorded; and until that was done the suit for the conversion must have been in the name of Thayer.</p> <p>But Thayer himself never owned the note and mortgage. No consideration was paid for them; hence, Thayer could not maintain an action for the conversion, and much less the plaintiff. Thayer never became entitled to the note and mortgage; and it would have been a gross fraud in him to have assigned them.</p> <p>If the note had been valid, and the stated consideration paid for it, Tarbell then could not have maintained an action for the conversion of the property, in his own name, till after a regular-transfer of the note and mortgage from Thayer to Tarbell and that transfer recorded in the town clerk’s office, although the note was payable to bearer.</p>

<p>Trespass for assault and battery. Pleas, general issue and self-defense as to Day, and defence of bis master as to Dean. Replication de injuria. Trial by jury, December Term, 1882, Windsor County, Taft, J., presiding. Verdict and judgment for tbe plaintiff. Tbe plaintiff gave evidence tending to show an assault upon liim by tbe defendant, Day, at tbe depot in South Royal-ton, and of threats. Tbe defendants objected to the evidence, upon tbe ground that it was not tbe assault declared for; but tbe court admitted it, supposing at tbe time that it was tbe assault for which tbe plaintiff claimed to recover. Tbe plaintiff'then proceeded to testify as to an assault occurring tire same day, but a few hours later, upon the highway leading from South Royal-ton to Barnard. This testimony was objected to upon the ground that but one 'assault could be recovered for under the declaration; and this was sustained. The plaintiff’s counsel conceded that he could recover for only one assault, but based ids claim on the last one, and insisted that he had the light to show the affray at the depot, or rather that threats were made there by defendant, Day, against the plaintiff, and that the first was preliminary to the second assault. The court considered some, if not all, of the evidence legitimate; but lest some of it "¡might be illegal upon the trial for the last assault, offered to call a new jury and begin the trial de novo. This offer was declined by the defendants. The court charged the jury as to self-defence:</p> <p>“When one person is assaulted unlawfully by another, the person assaulted has the right to defend himself, and he has a right to do so to an extent that will make the defence effective. But in so doing lie must not exceed the bounds of a reasonable and necessary defence. He may defend so far as is necessary to prevent the assault; but he must not use force to defend himself from injury if he can otherwise protect himself. If he has no other means of avoiding an assault that are available, and that appear to him at the time as sufficient, and are in fact available, then he cannot use force for that purpose. The amount of force that one has a right to use upon such an occasion depends to some extent upon the peril that he has reason to believe that he is in at the time. * * *</p> <p>If Day was assaulted first, he had no right to assault Howland in return, if he could properly protect himself without assaulting him. If, for instance, he knew or had good reason to believe at that time, that Howland would not leave his wagon, but that by keeping away from the wagon he would be in no danger from H owland’s assault, it would be his duty to keep away, instead of go ing to it, if he could escape the latter without unnecessary tro uble to himself. But he had the right to judge of the danger he was in from the circumstances that surrounded him, and if it rea sonably appeared to him under all the circumstances that he coul d protect himself in no other way than by an assault in ret-u rn upon Howland, if Howland made an assault upon him he would have a right to defend himself under such circumstances by making an assault upon Howland.”</p> <p>As to tbe first affray:</p> <p>“ There has been evidence in the case with reference to a transaction at South Royalton depot, a short time prior to this affray. The evidence is admissible not upon the main question in this case as showing who commenced this affray at the time in question, but for the purpose of showing the relation of these parties, their state of feeling for each other.”</p> <p>There was evidence in the case that Dean, one of the defendants, had made statements out of court differing from his testimony given upon the trial. Dean testified, among other things, that before Day was struck, lie, Day, did not reach out his hands, towards the plaintiff, etc.</p> <p>On cross-examination he was asked if he had not told Alvin Caswell at Day’s barn and on the road near Day’s house that Day when passing plaintiff’s wagon reached his hands out toward plaintiff, and that he, Dean, pulled the plaintiff out of the wagon at Day’s request, and denied saying any such things.</p> <p>Caswell was .called as a witness on the part of the plaintiff, and-testified that on the evening of the 11th of June, the day of said affray, Dean did so say to him at said places.</p> <p>And the court instructed the jury as follows:</p> <p>“ There is some evidence in the case as to the parties, or, at least, one of them, the defendant, Dean, having made statements out of court, or when testifying upon a former occasion with reference to the transaction, differing from their evidence that has been given on the stand in this case upon this trial. And I have been requested to call your attention to the law with reference to the effect of such evidence. •’Where a party makes a statement out of court, that is evidence against him with reference to the truth of the statement that he makes; for instance, in this case if either of these parties made a statement out of court that the other commenced the affray, it would be evidence here. It could be shown here as independent, substantive evidence, without any reference to what he testifies upon the stand. And if he did testify upon the stand different from this statement, it would be evidence that you could use in determining what weight you would give his evidence as he does give it upon the stand.”</p> <p>cited on the question that evidence as to the first affray was not admissible : 1 Chit. PI. 99; Dole v. Erskine, 37 N. H. 316 ; State v. Meader, 54 Yt. 130 ; that there was error in the charge of the court as to Dean’s testimony: State v. T/dbeau, 30 Yt. 100; State v. Cameron, 40 Yt. 556; as to self-defence: 35 N. H. 505.</p> <p>Previous threats are always admissible. 1. Hill. Torts, 206,' n.; Morrow v. Moses, 38 N. H. 95 ; Devine v. Rand, 38 Yt. 621; Pierce v. Iioffman, 24 Yt. 525; Whar. Crim. Law, 392. It was proper to show the first assault, as characterizing the second. 1 Greenl. Ev: s. 53. The charge as to self-defence was correct. Wharton Crim. Law 336; Hill. Torts, 209; Melhn v. 1Thomson, 32 Yt. 407; Edwards v. Leavitt, 46 Yt. 126. Dean’s evidence admissible. Reed v. Rice, 25 Yt. 171; Miller v. Wood, 44 Yt. 378; Patrick v. Hayne, 10 Yt. 183; State v. Mahan, 32 Yt. 241; Wright v. Williams, 47 Yt. 222.</p>

Action against a co-surety for contribution. Heard on demurrer to the defendant’s third plea, June Term, 1883, Orange County, Powers, J., presiding. Demurrer overruled, and plea-held sufficient. ' The opinion states the case. The plaintiff could not interpose any defence to the note ■ in New Hampshire. He was compelled to submit to a judgment on the note against him, and his liability was fixed by the judgment of a court of competent jurisdiction.

<p>Action to recover for injuries received on the highway. Heard on the report of a referee, December Term, 1881, Orange County, Rowers, J., presiding. Judgment pro forma for the defendant. The case is stated in the opinion.</p> <p>Negligence cannot be predicated upon the fact that the plaintiff took the old road. Wliar. Neg. ss. 66. 335, 403, 997 ; State v. Fryburgh, 15 Me. 405. If it was negligence, still if the defendant by the exercise of ordinary care and prudence could have avoided the injury, the plaintiff may recover. Badley v. London, FT. W. B. B. Co., 1 L. R. App. 754 ; Davis v. Mann, 10 M. & W. 548 ; Clayards v. Dethick, 64 E. C. L. 473 ; Tuffv. Warman, 5 Excli. 573 ; Allston v. Herring, 11 Exch. 821; Mayor of Colchester v. Brook, 7 Q. B. (N. S.) 377; Blanchard v. FT. J. Steamboat Go., 59 N. Y. 292; Wilder v. Me. Gen. B. B. Go65 Me. 332; Steele v. Bwrkhardt, 104 Mass. 548. The negligence, if any, was remote ; but it must be proximate to the injury to be a defence. Wliar. Neg. s. 73 ; Cooley Torts, s. 997; Trow v. Yt. Gen. B. B. Go., 24 Yt. 487; Thomp. Neg. s. 490; Bobinson v. Gave, 22 Yt. 213 ; Manly v. B. B. Go., 74 N. C. 655 ; Kerwhacker v. B. B. Co., 3 Ohio St. 172.</p> <p>(1) The damage must have been caused by the insufficiency of the highway alone; and, (2), the plaintiff must be free from any fault that contributed to the injury. Barber v. Essex, 27 Yt. 69; Powers v. Woodstock, 38 Yt. 44; Boveev. Danville, 53 Yt-. 183.</p> <p>The actual cause, as in this case, is nearly always made up of distinct and independent facts, coming from entirely different sources. Take this case : The report shows the injury was caused by at least three different, independent circumstances, facts or things; namely, (1) The fright of the horse by the cars; (2) the absence of a railing; and (3) the plaintiff’s being there with knowledge of the danger. The proximate cause was the fright of the horse at the cars.</p> <p>The court, under the facts reported, must hold that if either party is in fault, both are, and there can be no recovery. We insist that the negligence of the plaintiff was fully equal to that of the defendant; that if the negligence of the one is to be called the proximate or remote cause of the accident, that of the other must be equally so. Each ought to have foreseen and provided against the accident; neither did.</p> <p>Under these circumstances there can be no recovery.</p> <p>Trow v. Vt. Gen. R. R. Go., 24 Vt. 487; Davis v. Mann. 10 M. & W. 548 ; Greenland v. Ghapin, 5 Exch. 243 ; Gold-stein-v. R. R. Go. 46 Wis. 404; McDonald v. Snelling,14: Allen, 290 ; Lis. Go. v. Tweed, 7 Wall. 44; R. R. Co. v. Kellogg, 94 U. S. 469 ; Scheffer v. R. R. Go , 105 U. S. 249 ; See 30 Mich. 200 ; 35 N. J. L. 17; 74 Penn. St. 320 ; 11 East, 44.</p>

<p> Usury. Bankruptcy. Bights of Debtor over claims abandoned by Assignee. Debtor may sue in his own name. </p> <p>1 Uncollected usury does not pass to the assignee in bankruptcy, and it may be collected by the debtor after his discharge in a suit in his own name.</p> <p>2. A debtor, after his discharge, may sustain an actiou in his own name to recover money paid under a mutual mistake, the assignee having settled the bankrupt estate without attempting to enforce the claim, and the Statute of Limitations having run so that it would be a bar to a second suit in behalf of the creditors.</p> <p>3. The creditors could have come into this suit, and availed themselves of this claim; but neglecting to do so, the suit pending for a long time, with all the facts spread upon the record, the court refused to delay judgment.</p>

<p> Deed, Construction of. Right of Way. Adverse Possession. Merger of Servitude. Evidence. </p> <p>II. in 1848 owned both the plaintiff’s and defendant’s premises. The deed conveying the plaintiff’s contained this clause : “ Said sixteen feet [ecssi] of said house to he kepi open as far hack as the south end of said house." The defendant claimed a right of way by reason of said reservation, and also by prescription. Bold,</p> <p>1. That a right of way was not reserved; that the clause is applicable to other matters, such as obstructing' light, air, or the view.</p> <p>2. Merger of Servitude. Evidence was not admissible to aid in the construction of the deed, showing that the way had been used for twenty years prior to 1848; because («) if there was a servitude, it had been merged in a unity of ownership; and (J) there was no ambiguity in the deed.</p> <p>3. Copies of deeds oí the premises executed prior to the time when H. acquired title, were not admissible, to prove that the plaintiff’s east line was only eight feet east of his dwelling house, to aid in construction of the deed.</p> <p>4. Adverse Possession. The use must be under a claim of right; thus, one of the defendant’s granters admitted on trial, that while he occupied he never made any claim to the land. Held, that the possession was not adverse.</p>

<p>Complaint upon the relation of a private person, praying for leave to file an information in the nature of a quo warranto. The case is stated in the opinion of the court.</p> <p>The complaint cannot be dismissed on motion, even with the consent of parties. 1 Cow. 109, ri. The defendant must either disclaim or justify. If the latter, he must set out his title specifically. 2 Dill. Mun. Cor. 717; People v. Bank, 6 Cow. 196; Commonwealths. Seward, 11 Mass. 71. Statutes regulating quo warranto are remedial, and will not receive a strict construction. High. Ex. Rem. ss. 622, 697, 700. It is well established that under quo warranto, etc., the return or certificate of canvassing officers as to the result of the election is not conclusive as to title, etc. High Ex. Rem. s. 638. The courts will go behind the returns. High. Ex. Rem. ss. 722, 760 ;• 8' Cow. 102 ; 2 Wend. 12. This is a propter case for a quo warranto. State v. Harris, 52 Yt. 216 ; 5 llenio. 109 ; State v Clark, 25 N. J. L. 351; People v. Pease, 27 N. Y. 15; People v. Cook, 8 N. Y. 67. The question on quo vjctrranto as to an elective office is whether the defendant received a majority of all the votes which the canvassers had a right to count. Cool. Con. Lim. s. 620 ; State v. Tierney, 23 Wis. 130 ; 1 U. S. Dig. (1870) p. 611, s. 18 ; State v. Sheriff, 23 Wis. 630; 61 Ind. 121; 58 Cal. 198.</p> <p>The motion to dismiss, and “speaking demurrer” of the answer, involve the question whether the facts set forth in the petition entitle the petitioner to relief.</p> <p>The proceedings are criminal in form although addressed to the sound judicial discretion of the court. The writ may be allowed or denied in consideration of the condition of the property and its owners and its relations to the public. State v. Ilunton, 28 Yt. 591; State v. Smith, 18 Yt. 266.</p> <p>This case cannot be regarded as important, or one of either public interest or individual emolument. It comes up at a time when all the duties of the office for the year have been performed by a committeeman at least de facto, and also as we claim, de jure.</p>

<p>[In Chancery.]</p> <p>Bill in Chancery. Heard on the report of a special master, September Term, 1882, Rutland County. Yeazey, Chancellor, decreed that defendant Baker should convey by quit claim deed the land in question to the orator. The bill was brought to compel the defendant Baker to deed certain wild lands in Mount Tabor to the orator. The master found in substance :</p> <p>That the orator, Geo. C. Winchester and Charles Winchester owned certain wild lands, each an undivided third; that the defendant Abbott owned a note executed by said Geo. C.; that the defendant attempted to sell the note to the orator, but the orator declined to buy it, giving as a reason, that he did notwant to bring a suit in his own name against Winchester.</p> <p>“And I find that as a result of said further conversation and negotiations, it was then and there agreed between Abbott and Griffith, that Abbott should go to Rutland and see Joel C. Baker, Esq., the then attorney of Griffith, and leave the note with said Baker; that Griffith should at once make examination of the record of Winchester’s title to said land, and if he found said title satisfactory, he should go to Rutland and see Baker and direct him to bring suit upon the note in the name of Baker, against Winchester, and attach his interest in the land, obtain judgment in said suit as soon as he could, and proceed to set off the interest of Winchester ih said lands upon execution to be issued upon said judgment; and if the land was not redeemed from said attachment or levy, and the interest or title of Winchester in the land should pass to and vest in Baker, under and by virthe of said proposed attachment, levy and set off, it was agreed that Baker should convey the title and interest in said land, so by him obtained, to Griffith, upon receiving from him (Griffith) for said Abbott, the amount of such judgment, including interest, costs of suit, levy and set off.</p> <p>I further find that acting upon said agreement, he, Abbott, went to Rutland, saw Baker, made known to him in whole or in part, the arrangement between him and Griffith as to said note and the interest of Winchester in said land, endorsed said note without recourse in blank, and delivered it to and left it with him and said Baker. I further find that immediately after said negotiations were had and said agreement was entered into, Griffith made examination of said records and found the same to show satifactory title of said one-third interest of said tract of land to be in Winchester; and within a very short time thereafter he -went to Eutland, saw Baker, stated to him what the anangement and agreement was between him and Abbott as to said note and land, and directed suit to be brought on said note ; and suit was thereupon commenced in the name of Baker, based upon said note, and thereafterwards prosecuted to final judgment, under the direction of said Griffith.”</p> <p>Execution was issued in favor of Baker, and a levy duly made.' *</p> <p>-#• *</p> <p>“ Said land was not redeemed from said levy and set-off, anti after the time of redemption had elapsed, said Baker informed said Griffith of that fact, and that he was ready to convey said land to him upon receipt of the money. And on the 10th day of October, 1881, Griffith went to Eutland, saw Baker and paid him the amount ho claimed under said arrangement and agreement, to wit; the sum of $1,082.45, and at this time said Baker submitted to said Griffith a quit-claim deed from him to Griffith of said lands which he (Baker) had drafted, which was satisfactory to said Griffith. At. this time said Griffith was in haste to leave Eutland, he then being on his way to Bos'ton, and there was no one present to witness the deed, so it was arranged that said Baker should at his convenience execute said deed and forward it to said Griffith. At the same time Griffith informed Baker that he wanted his deed of said land as he wanted to set his help to work lumbering on said land. and Baker told him to go ahead, and go to work; it would make no difference that he did not have deed. And in accordance with this arrangement Griffith entered upon said lands and cut and took off timber therefrom to a greater or less extent; and so continued up to about the time of bringing this action.</p> <p>The said Baker, without any apparent cause, delayed completing the deed for several days; and before the same was completed the defendant Abbott came to Eutland, saw Baker, and learned from him the then situation of the aforesaid matters; and Baker then offered to pay him the amount of said note, but he (Abbott) refused to accept the money, and forbade Baker executing or delivering the deed to Griffith, and demanded of Baker a deed of the land to himself, claiming that he did not make any such arrangement or agreement with Griffith, as was claimed by Griffith, and that Griffith was not entitled to a deed.of the land; and thereupon Baker notified Griffith of what Abbott claimed, of his refusal to accept the money, and his position and demands and notice aforesaid; and soon after this Baker saw Griffith, and offered to pay the money back, but Griffith refused to accept it, and demanded his deed. Baker declined to deliver deed to Griffith, and the matter has since remained in that condition. Baker has the money, and the title to said land now rests in him.” * * * “ After the set-off and before the six months months allowed for redemption had expired, Griffith' relying on liis parol contract with Abbott and Baker, bought adjacent lands, and built roads, and shanties for choppers to live in.”</p> <p>Baker has no interest in the land, and claims none. He was merely the agent and attorney of defendant Abbott; and could not, and did not, bind him by contract; nor by accepting the money of the orator. The relation of attorney and client is one of trust and confidence, requiring the utmost fidelity. Weeks Att. at Law, 413 ; Yardly v. Fililí, Hob. 8, a; 1 Berry Trusts, s. 202. Baker held the title in trust for Abbott. Biddings v. Eastman, 5 Baige, 561; Davis v. Smith, 43 Yt. 269. He could not sell it without express authority. Wheeler v. Willard, 44 Yt. 640 ; Ghilds v. Eureka Works, 44 N. H. 354. He could not assign or sell the judgment. 47 Pa. St. 214 ; 5 Yt. 346; 58 Pa. St. 196; 10 Yt. 471. Had no power to compromise. 15 Yt. 314; 55 Mo. 405 ; 39 Md. 485 ; 21 Oonn. 245. It was a parol contract for the sale of real estate. The Statute of Frauds is a defence. 19 Ind. 347; Hibbard v. Whitney, 13 Yt. 21; Buck v. Pichwell, 27 Yt. 157; Dowling v. McKenney, 124 Mass. 478 ; Ballard v. Bond, 32 Yt. 355 ; Whitcher v. Morey, 39 Yt. 459; Davis v. Farr, 26 Yt. 592 ; King v. Smith, 33 Yt. 22. Payment, did not enlarge the rights of the orator. Cobb v. Hall, 33 Yt. 233; Jettison v. Jordon, 68 Me. 373; Oook v. Daggett, 2 Allen, 439. The contract would seem to be obnoxious to the statute: R. L. s. 981, as it could not be performed within one year. It was made September 10, 1879; the writ could not be entered in court till March 9,1880, and then six months to redeem. 1 Yt. 69; 10 Vt. 338; 11 Yt. 428 ; 41 Yt. 541; 28 Yt. 34; 50 Yt. 626.</p> <p>There has been such a. part performance of the contract as entitles the orator to its specific execution. There lias been a payment and change of possession. Browne Statute Frauds, ss. 465,467; Sutton v. Sutton, 13 Yt. 71; Eaton v. Whitaker, 18 Conn. 222 ; Lacón v. Martins, 3 Atk. 1; L3i7ee v. Morey, 32 Yt. 37; Stark v. Wilder, 36 Yt. 752; Fry Spec. Bei-f. 247, 251, 258; Croker v. Lliggins, 7 Conn. 342; 1 De G. & J. 32; 1 Story Eq. J. ss. 761, 763; Anson Con. 57; Rhodes v. Rhodes, 3 Sand. Cli. 284; Nunn v. Tobin, 1 L. R. Oh. App. Cas. 34; Noyes v. Moor, 1 Root, 142; Matins v. Brown, 4 Conn. 403.</p>

<p>Trustee process. Heard oil commissioner’s report, March Term, 1883, Washington County, Redfjeld, J., presiding. Trustees adjudged liable. It appeared that two suits, prior to this one, had been brought against this defendant and these trustees, — one in favor of R. R. Higgins & Co., and the other in favor of Buchanan, Johnson & Co.; that the two suits were entered in court; that the suit of Higgins & Co. was settled without a commissioner, but that a commissioner was appointed, and made a report, in Buchanan, Johnson & Co.’s suit;, and that lie allowed the trustees more costs in Higgins & Co.’s suit, and greater damages in reduction of the note due from them to the defendant, than the commissioner did in this action.</p> <p>This whole matter was adjudicated in the Buchanan, Johnson & Co.’s case; the court had jurisdiction; the adjudication was complete ; nó error of law or fact is shown in that judgment, and it is conclusive. If it is not conclusive, how can a judgment in this ease conclude anyone? Why cannot another party commence a suit, after this is terminated, and so litigate this question interminably. Minor v. Walker, 17 Mass. 237; Kettle v. Harvey, 21 Yt. 301; Stafford v. Page, 15 Yt. 494; Parhhur&t v. Green, 25 Yt. 538; Drake Attachment, 675.</p> <p>A judgment in one trustee suit does not preclude the same trustees being charged on account of the same debt in another suit in favor of a different party. Drake Attachment, s. 707 ; 20 Pa. St. 396 ; 5 Jones, Law, 39.</p>

Troves for fourteen swarms of bees, their honey and hives. Plea, general issue. Trial by court, September term, 1882, Washington County, Reotield, J., presiding. Judgment for the plaintiff to recover for all property covered by his lien. The defendant ivas the administrator of the estate of E. L. Marshall. The plaintiff sold to the defendant’s intestate the bees, hives, etc., in question, reserving a verbal lien thereon, and also on the new lioney which the bees should make.

<p>General Assumpsit. Heard on the report of a referee, April Term, 1881, Lamoille County, Boss, J., presiding. Plea, the general issue. Judgment pro forma for the plaintiff to recover $312.19. No question was made but the charges of the defendants were reasonable. They were such as are usually made by lawyers for professional services; and were made while attending to several different suits. The suits were brought in the name of Spaulding Spooner, and his wife, Chloe D. The money in contention was paid to the defendants on a judgment rendered in one of the suits. The referee found in part:</p> <p>“ If from the facts found and reported the court are of the opinion that the said defendants have an attorney’s lien upon the funds in the hands of the defendants for their entire account accruing in all the suits in which the defendants acted as counsel for the said Spooner and wife, and the plaintiff as administrator as aforesaid, and as well before as since the death of Mrs. Spooner, then the said referee finds for the defendants to recover their costs as the amount of their said account so accruing, exceeds the amount of the money in their hands. But, if the court are of the opinion that the said defendants have an attorney’s lien upon the funds in their hands for so much of their account as accrued in suits in which they were employed as counsel for Spooner and wife up to the time of said claimed discharge, then the referee fi'uds for the plaintiff to recover in this suit the sum of sixteen dollars and fifty-seven cents.”</p> <p>cited 1 Kent Com. 640, 641 ; Walker v. Sargeant, 14 Yt. 247; Hutchinson v. Howard, 15 Yt. 544.</p> <p>The lien upon the money only extends to taxable fees and disbursements in the canse. It does not secure any general balance due for services in other cases. Sleartt v. Chipman, 2 Aik. 162; Walker v. Sargeant, 14 Yt. 247 ; Wells v. Hatch, 43 N. H. 246 ; Adams v. Fox 40 Barb. 442 ; Wright v. Cobleigh, 1 Fost. (N. II.) 339 ; Pope v. Armstrong, 3 Sin. & M. (Miss.) 214.</p> <p>The defendants have a lien, but it atttaches only to such items as are subject to an attorney’s lien which accrued after the death of Chloe D. Spooner up to the time of their discharge, and is confined to the cause in which the money is recovered. Adams v. Fox, 40th Barb. 442. •</p> <p>A client can discharge his attorney. Langdon v. Castleton, 30 Yt. 285 ; Davis v. Smith, 48 Yt. 52; Wells v. Hatch, supra. The defendants’ account is barred, because it was not presented to the commissioners. Aiken v. Bridgman, 37 Yt. 249; Soule v. Benton, 44 Yt. 309 ; Squires v. Gale, 47 Yt. 473.</p>

<p>Assumpsit on a policy of insurance. Pleas, general issue, special pleas, replication and rejoinder. Trial by jury, March Term, 1881, Washington County, Powers, J., presiding. Judg-. ment for the plaintiff.</p> <p>The plaintiffs gave evidence tending to prove- that the plaintiff Donahue cut a quantity of hay on the Hurley farm, in Berlin, and put it in a bay and on a scaffold in the barn on said farm, during the haying, season of 1879; that one Fisk cut another quantity of bay on said farm during said season, and put the same in part in a slied adjoining and built on to one end of the barn, and also put some of said bay' upon a scaifbld in said barn; that shortly before the date of said application for insurance, Fisk sold his interest in said hay to the plaintiff Mnllaly. The plaintiffs also gave evidence tending to show that they owned said hay jointly, that after the same was cut and put in the barn they estimated that each owned about the same amount, and they agreed that either might sell from the hay indiscriminately and the proceeds of sales should be equally divided.</p> <p>AFFIDAVIT.</p> <p>"STATE OF VERMONT,) WASHINGTON COUNTY. j</p> <p>We, the undersigned, insured in the Windsor County Mutual Fire Insurance Company, in policy No. 25,956 on produce in Berlin, Vermont, in barn owned by Mrs. Mary Hurley, declare that on the night of September 24, A. D. 1879, we were the joint owners of a certain quantity of hay, situated in said barn and covered by said policy of insurance, estimated in amount to be twenty-five and one-half tons. And on the night of said day said barn was consumed by fire and said hay was "burnt, estimated to "be worth one hundred and eighty dollars at the price insured for, and wo claim pay for said hay from said company.</p> <p>Nortlifield, Oct. 16, 1879.” , (Signed and sworn to.)</p> <p>The other facts are sufficiently stated in the opinion.</p> <p>The requirement as to giving notice was not complied with. Giving notice 22 days after the fire is not giving notice forthxoith. Giving such notice and the filing of such affidavit are conditions precedent, and must be strictly complied with. Worsley v. Wood, 6 Term, 710; Inman v. The Western F. Ins. Co., 12 Wend. 452. “Forthwith” means immediately, without delay, directly. Notice given in 38 days after the fire is not given “forthwith”: Inman v. The Western F. Ins. Co., supra; nor, in 11 days: Trash v. State F. Ins. Co., 29 Penn St. 198 (4 Bennett 331); nor, in 18 days: Edwards v. Lycoming II. F. Ins. Co., 75 Penn. St. 378 (5 Bennett 564); nor, in 20 days: Whitehurst v. FT. C. M. Ins. Co., 7 Jones Law, 436 (4 Bennett 482); nor, in 6 days: Railway P. A. Co. v. Burwell, 44 Ind. 460. See Hovey v. Am. II. Ins. Co., 2 Duer, 554 ; Beatty v. Lycoming FI. F. Ins. Co., 66 Penn. St. 9 (5 Bennett 101); Woodfin v. Ins. Co., 6 Jones Law, 558.</p> <p>Where the facts are undisputed it is a question of law, and not for the jury. Roth v. R. R. Co., 34 N. Y. 548; Hedges v. R. R. Co., 49 N. Y. 223; Wilbech v. Holland, 45 N. Y. 13; Hine v. Nichols, Dig. 356.</p> <p>The doctrine of implied waiver does not apply to a defect in the time of giving the notice; it has been applied only to the terms and manner of the notice. In case of want of notice no intimation or objection by the company could remedy it. The party has lost all claim by his own laches. Patrick v. Farmers' Ins. Co., 43 N. II. 621; St. Louis Ins. Co. v. Hyle, 11 Mo. 278 (2 Bennett, 641); Edwards v. Ins. Co., 3 Gill, 176 (2 Bennett, 415); Underwood v. Ins. Co., 57 N. Y. 500; Brink v. Ins. Co., 70 N. Y. 593; Wood, 699, 706. The suit was premature Dutton v. Yt. If. F. Ins. Co., 17 Vt. 369; Williams v. Yt. FI. F. Ins. Co., 20 Vt. 222; Bartlett v. Ins. Co., 46 Me. 500; Kevens v. Ins. Co., 5 Foster, 22.</p> <p>Notice “forthwith ” is notice within a reasonable time under all the circumstances, Peoria Ins. Co. v. Lewis; 18 111. 553; Fdwardsv. Ins. Co., 3 Gill, 176; Provident Life Ins. Go. v. Baum, 29 Ind. 236; Knickerbocker Ins. Go. v. Could, 80 111. 388. Such notice may be waived. Phillips v. Ins. Go., 14 Mo. 220. The affidavit was sufficient. Gatlin v. Springfield Ins. Go., 1 Sumner, O. C. 434. But the defendants are estopped from setting up such defects in the notice as a defence to the action, from the fact that the notice was seasonably delivered, and retained by the company without question or objection, the ease showing that the company defends upon other grounds and refused to adjust the loss. If there are any defects in such notice tlio}r v.ero waived by the defendants. Bosch v. Ins. Co., 35 N. J. L. 429; Walker v. Ins. Go., 56 Me. 371; Patterson v. Ins. Go., 64 Me. 500; Bartlett v. Ins. Co., 46 Me. 5u0 ; Clark v. Ins. Go., 6 Cush. 342. The suit was not premature. Phillips v. Ins. Co., 14 Mo., 220; 25 N. H. 22; 4 Met. 212; 14 Rep. 506.</p>

<p>Covenant, Breach of. Incumbrance. Tax Sale when Illegal. Voluntary Payment. P. L. s. 380.</p> <p>1. The defendant conveyed to the plaintiff a farm with covenants against incumbrances, ten acres of which farm had been sold by the collector to satisfy taxes assessed against a former owner. The taxsale was illegal; but the plaintiff redeemed. Held, that there was no breach of covenant; that the sale-under the warrant, payment by the bidder, and redemption by the plaintiff, operated to extinguish the taxes, without conferring rights; that it was a voluntary payment, not recoverable of the grantor.</p> <p>2. Taxes may be an incumbrance; and this is so, even before a sale by the collector.</p> <p>3. It was incumbent on the plaintiff to establish a subsisting incumbrance at the time he received his deed.</p> <p>4. Tax Sale is illegal, without a strict and literal compliance with the statute; thus, when the collector failed to post a notice in some public place in town ten days before the sale; also, when he sold for a larger sum than he was entitled to, the sale was held fatally defective. Nothing is presumed in favor of proceedings in invitum.</p>

Trustee process. Commissioner’s report. Heard. March Term, 1883, Washington County, Redeield, J., presiding. Judgment that the trustee be discharged. The value of the goods turned ■over to the trustee was less than his debt against the principal defendant. The goods so turned out were attached on the writ; and after the attachment, but before a copy had been delivered to the principal def efidant, the trustee’s name was inserted in the writ.

<p>Railroad Fences. Neglect to Build. Liable. Contributory Negligence. R. L. ss. 340Y, 3418.</p> <p>1. The plaintiff’s horse escaped from liis adjoining meadow directly on to the-track, and was there killed by a passing train. The defendant had neglected to maintain a lawful fence. Held, that the company was liable, although the owner knew of the defect in the fence, that his horse wasbreachy, and although there was no neglect in running the train.</p> <p>2. The doctrine of contributory negligence is not applicable.</p> <p>3. It is not only the duty of the company to fence its track, but also to maintain the fence.</p>

<p> Statute of Frauds. Promise when not xoithin. </p> <p>A surety on a non-negotiable note conveyed his real and personal estate to the defendant in consideration of the grantor’s future support and payment of liis debts. Subsequently the defendant made a verbal promise to the plaintiff, who became the owner of the note by inheritance, that lie would pay it, if the principal on the pote did not. Held, that tlie promise was valid, and not within the statute; that the conveyance of the property was a sufficient consideration.</p>

<p>Trespass and trover for tlie conversion of a heifer. Plea, general issue; and trial by jury, June Term, 1882, Orange County, Rowell, J., presiding. Yerdict and judgment for the plaintiff to recover $32 damages and costs. The only exception was to the charge of the court, which was as follows :</p> <p>“ In actions of this kind interest as such is not allowable, as it is upon a note that" reads £ with interest,’ or upon a debt created by contract; but in assessing damages, the jury may look at the lapse of time for the purpose of seeing how much the plaintiff ought to recover, if anything, between the taking, the conversion, and the time of trial. One. way of getting at the amount of damages the plaintiff would be entitled to recover; if at all, would be to determine how much the heifer was worth at the time of the alleged taking, and add to that the interest thereon from that time to the present. That would be one way of determining what the plaintiff now ought to recover by way of damages; but interest as such, and by that name, cannot be recovered.”</p> <p>The exceptions did not state what course the jury took as to „ interest in determining the damages. There was a petition for new trial. The other facts are stated in the opinion of the court.</p>

<p> hiortgagee in Possession. When Improvements chargeable to Mortgagor on Redemption. </p> <p>1. While it is a general rule that a mortgagee in possession without foreclosure cannot improve the mortgagor out of his estate, and that permanent improvements cannot be made at his expense, if he elects to redeem, yet it is not an inflexible rule; but it is suspended in exceptional cases, if justice requires it; thus, the land in question was covered with sprouts and bushes, the large timber having been taken off, and, in no condition to yield income; the mortgagee was in possession, and, supposing that he was the absolute pwner, cleared the land, built fences, and erected a small barn — all such as good husbandry required, and done in good faith; the mortgagor stood by in silence, making no objections, asserting no right or wish to redeem until the improvements were substantially completed. A bill having been brought to redeem, Held, that the rule that he who seeks equity must do equity applies; and that the improvements were chargeable to the mortgagor.</p> <p>2. A grantor has an equity of redemption under a deed absolute in form, but in reality a mortgage.</p>

<p>Action given by E. L. s. 3833. Trial by-jury, September Term, 1882, Windham County, Bowell, J., presiding. Verdict ordered for the defendants. The plaintiff offered to prove that the defendant Towns was the proprietor of a hotel in Bellows Falls ; that he kept a bar in his hotel, at which intoxicating liquor was sold, and that the defendant Sullivan tended the bar for him ; that Sullivan unlawfully sold said liquor to one Peter Good who drank such quantities of it that he died in consequence thereof. She also offered to prove that said Good was married to one Mary E. Marcy in 1854, and that she lived-wifch him as his wife till the summer of 1867, when she left him, and at the time of his death in 1881, she was living in Worcester, Mass., with another man as his wife, and between whom the ceremony of marriage was performed in 1872 ; that no divorce had been granted to said Good or his wife ; that the said Mary E. w7as not dependent on said Good for her support, and that she made no claim on his estate, and none on the defendants; that soon after said Good’s wife left him, he procured this plaintiff, Mary M., then about fourteen years of age, to work for him as his housekeeper; that she lived with him as his wife till the time of his death ; that at that time she was the mother of seven children, and two days after his death she gave birth to an eighth child, and that said Good was the father of said children ; that after the birth of the first child, the ceremony of marriage was performed between the said Good and the said plaintiff, Mary M., and that she understood that he had been divorced from his first wife ; that said Good acknowledged the seven born previously to his death to be his children, and furnished a homo and support for them; that said Good treated and acknowledged said plaintiff, Mary M. as his wife in the community where they lived ; that he had supported her, and would have continued to do so, had he lived ; and that she was dependent on him for support.</p> <p>Mary E. Good brought her action by her next friend, Mary M. Good. In this suit, the plaintiff offered to prove substantially .the same facts that Mary M. did in her suit; and that she was the child, about thirteen years old, of the said Peter and Mary M. Good; that ever after her birth said Peter had acknowledged that he was her father, that he treated her as his child, furnished her a home, supported her, and would have continued to do so had he lived ; and that she was dependent on the said Peter for support.</p> <p>The statute seeks to accomplish two purposes, first, to deter persons from violating chap. 169 R. L.; second, to give a remedy to persons injured in consequence of the violation of such penal provisions. The statute created a remedy where there was none before; and is to be liberally construed toward effectuating its purpose. Wheeler, J., in Smith v. Wilcox, 47 Yt. 537. The provision is a sweeping one, and affords no door of escape from damages. It is not a question of the character of the dependency; but whether the plaintiff was in fact dependent upon the deceased person. It is manifest, from the history of this statute, it having been before the legislature three times, that it was not the legislative intention to narrow the ground of liability.</p> <p>The plaintiff’s marriage has no connection whatever with the offense charged. Stanton v. Simson, 48 jYt. 628 ; 43 Md. 513.</p> <p>As to the child : The old severity of the common law in relation to the rights of illegitimate children, and the duties and obligations of the fathers of such, no longer exists. The common law has in various ways been modified by statutes. Independent of such statutes, the tendency of courts in modern times, has been towards a more liberal policy, and to the establishment of doctrines more in accordance with the principles of humanity and natural justice.</p> <p>Peter Good, having from the birth of the plaintiff, adopted and recognized her as his child, and furnished her a home and a support, had thereby become legally bound to support her and to continue that recognition, adoption and support. But whether this be so or not, he had a moral and legal right to do so, and as the case shows he would have so done, it follows that defendants, by their wrongful and criminal act, have deprived her of what she would have obtained from her father. 2 Kent Com. (6th ed.) 215; Sell. Dom. Bel. (3d od.) s. 279; Ilesketh v. Gowing, 5 Esp. 131; 12 N. T. 530; 46 Iowa, 195.</p> <p>The statute gives the right of action only to one dependent on the person whom the intoxicated person kills or disables. Ilollis v. Davis, 56 N. H. 74.</p> <p>Dependent, as used in the statute, means, and can mean only, a legal dependency — a dependency that the party depended on is legally bound to respond to. A father is bound to support his legitimate minor children. Such children are dependent upon him. This dependency is the correlative of such legal duty of the father. The father of illegitimates is not bound to support them. So they are not dependent on him; that is, they have no claim that the law recognizes for support by him. Dependency can be predicated only of such as can assert a right to be supported against a party whom the law charges with the duty of rendering such support. Sch. Dom. Bel. s. 279, p. 384-5 ; Dickinson v. Pforth Eastern R. R. Co., 2 H. & C. 735 ; 2 Kent Com. 192 ; Gordon v. Potter, 17 Yt. 348; Varney v. Young, 11 Yt. 258 ; Bacon v. McBride, 32 Yt. 585 ; 6 Yt. 91-j B. L. ss. 2232, 2396, 2404, 2423, 2821.</p>

Action by plaintiff as assignee in insolvency of S. A. Sawyer of Pern to recover $675 paid by Sawyer to the defendant, a creditor, in January, 1881, and within four months before the filing of the petition by his other creditors. Trial by jury, June Term, 1882, Bennington County, Yeazey, J., presiding. Judgment for the defendant. Sawyer had always lived in Peru.

Ejectment.' Trial by court, March Term, 1883, Washington County, Eedeield, J., presiding. Judgment for the defendant. It was agreed that the premises sued for are a dwelling-house and lot in the village of Nortlifield; that one Perry Marsh purchased them in 1869 ; that his family consisted of himself and his wife; and that they occupied the premises as a homestead until her decease in September, 1876.

<p>Petition of the town of Sharon under No. 16 of the Acts of 1882. Heard on the report of commissioners, December Term, 1883, Taet, J., presiding. The petitionee excepted to the report; but the court overruled the exceptions and held as a matter of law that it had no right to consider the question whether the proportion assessed to Strafford was reasonable or unreasonable, and refused to exercise its discretion in regard to that point. Judgment that the towns be assessed for the expense of rebuilding, repairing, and maintaining the bridge in the proportions specified in the report. The commissioners decided that Strafford should bear one-third of the expense. The commissioners found that Sharon would be excessively burdened by sustaining the whole expense of repairing the bridge; that Strafford would be benefited by the bridge; but did not report that they took into consideration the indebtedness, population, 01-grand list of either town.</p> <p>The fact that Strafford is accommodated by the bridge is not pertinent to the question. The question was whether Sharon was excessively burdened, and thi s should have been first determined. Webster v. Alton, 29 N. H. 367; Whiteridye v. Concord, 36 N. II. 530. Excessive burdens cannot be inferred from the fact of benefit to other towns. The court erred in deciding that it had no power to inquire into the reasonableness of the apportionment. 16 Yt. 326; lb. 447; Burgess v. Grafton, 10 Yt. 321; Crawford v. Rutland, 52 Yt. 412; Furguson v. Sheffield, lb. 77 ; Woodstock v. G'allugo, 25 Yt. 587 ; Paines. Leicester, 22 Yt. 44; Londonderry v. Peru, 45 Yt. 424. The court may accept or reject the report. R. L. s, 2951.</p> <p>The County Court was fully justified in its decision. R. L. ss. 2975, 2977; Paine v. Leicester, 22 Yt. 44; West River Bridge Co. v. Dix, 16 Yt. 446; Gallup v. Woodstock, 29 Yt. 347; State v. FTewfane, 12 Yt. 424; 47 Yt. 393 ; 45 Yt. 424; 22 Yt. 131; 42 Yt. 134.</p>

<p> Statute of Limitations. Residence. Grand, Lists used as Evidence to refresh recollections of Witness. </p> <p>1. The question being whether the Statute of Limitations had run on a note due from the defendant, and this turning on the question of residence, it was held that the grand lists containing the defendant’s personal list were admissible to refresh the recollection of the listers who had signed and sworn to them, but who did not make them, and who had no recollection of the defendant. The court did not decide whether they were admissible as substantive evidence.</p> <p>2. If a debtor’, residing out of the State when the cause of action accrues against him, comes to dwell and reside permanently in the State, it is not necessary that the creditor have knowledge of this fact in order to set the Statute of Limitations in operation; it is enough if he can acquire such knowledge by the exercise of reasonable diligence.</p>

Trespass. Heard on'the report of a referee, May Term, 1883, Taft, J., presiding. Judgment for the plaintiff. The facts are snliiciently stated in the head notes and the opinion.

The account was presented for allowance by the defendant administrator. Heard on the report of a commissioner, December Term, 1883, Taft, J., presiding. Judgment sustaining the report that the organ was a gift. The defendant excepted to the report on the ground that the female plaintiff was allowed to testify in her own behalf.

Trespass for taking an ox. Plea, the general issue and notice. Trial by jury, December Term, 1883, Tart., J., presiding. Yerdict for the plaintiff. The defendant was a constable, and attached the ox in contention. The facts are sufficiently stated in the opinion, and in 54 Yt. 428, and 55 Yt. 341, where this case is reported.' Loss of crops and use of land is not the natural and proximate result of the trespass complained of. ‘ 1 Sedg. Dam.

Covenant. Heard on demurrer, February Term, 1884, Tart, J., presiding. Demurrer overruled, and the declaration held sufficient. In construing the deed, the written portion is entitled to the greater consideration. Carrigan v. T?is. Co., 53 Vt. 418. Striking out the printed words, and inserting the written, show that the intent was to sell and convey only the title and interest.

Indictment for a breach of the peace. Trial by jury, December Term, 1883, Tart, J., presiding. Yerdict, guilty.

Assumpsit. Plea, general issue. Trial by jury, May Term, 1882, Rowell,- J., presiding. Yerdict for the defendant. The parties made a verbal trade for the sale of some lumber; and at the same time and as a part of the same transaction the plain-tiff gave to the defendant a chattel mortgage of the lumber and other property to secure the delivery of the lumber.

<p> Criminal Law. Challenge of Juror. ■ Evidence. -Question for Court. </p> <p>1. The better rule is, though not universal, that a respondent in a criminal trial has no ground of complaint, when he challenges a juror for cause and is refused, and then challenges peremptorily, if he has challenges left when the panel is filled.</p> <p>■2. Minutes of Justice of the Peace not admissible on trial in the County Court. The minutes of a justice of the peace taken at a court of inquiry, and filed in accordance with the statute, [R. L. s. 1670-72] are not admissible as independent evidence in the trial in the County Court, for the purpose of contradicting a witness.</p> <p>3. Question for Court. Whether there be any evidence is a question for for the court; whether sufficient evidence, is a question for the jury; thus, on the trial of several respondents charged with an assault, the court told the jury that there was evidence tending to prove a combination. Held, no error.</p> <p>4. R. L. ss. 1670, 1672, testimony in court of inquiry to by written by a justice of the peace and filed with the clerk of the county, — construed.</p>

[In Chancery.] Bill in chancery praying for an injunction to restrain the defendant from interfering with the orator’s use of a water privilege. Heard on bill, answer, traverse, and -the report, of.a master, December Term, 1883, Powers, Chancellor. Bill dismissed. Subsequently to the execution of the Chipman deed other machinery was put into the orator’s mill for sawing boards and coarse lumber.

Assumpsit upon, an officer’s receipt. Trial by court, December term 1883, Powers, J., presiding. Judgment for the plaintiff.- The facts are sufficiently stated in the opinion. The plaintiff is under no liabilty to Knapp ; for Knapp by his acts of interference has released him and the receiptors. The obligation of the receiptors was to show what would excuse the officer.

<p>Appeal from the Probate Court. Heard on motion to dismiss, December Term, 1883, Powers, J., presiding. Appeal dismissed.</p>

<p> Trespass. Countermanded Order. </p> <p>If A gives an order to B, but countermands it before it is acted upon, be is‘ not responsible for wbat B does under it.</p>

Assumpsit brought by the collector of city taxes to recover an assessment imposed upon the defendant, by the court of common council of the city of Yergennes, for building a sidewalk in front of his buildings. Trial by jury, June Term, 1883, Powers, J., presiding. Yerdict ordered for the plaintiff. The •case appears in the opinion. The act is unconstitutional. The only foundation for such assessments for local improvements is in the special benefit to the property assessed.

Trespass for the conversion of wheat, oats, and pork. Plea, general issue. Heard by the court, December Term, 1883, Powers, J., presiding. Judgment for the plaintiff. The case is stated in the opinion of the court. cited Hurd v. Fleming, 34 Yt. 169. cited Briggs v. Oaks, 26 Yt. 138 j Gray v. Stevens, 28 Yt. 1; Cooper v. Cole, 38 Yt. 185; Bellows v. Wells, 36 Yt. 599.

Petition for tlie appointment of a receiver, brought by Charles Dewey, inspector of finance, to take charge of the St. Albans Trust Company. Also a petition brought by O. W. Rich, the receiver of said company, praying that the court might prescribe the order, proportion, and manner of distribution of the funds of the trust company. Heard, September Term, 1883. .

Trespass. Plea, the general issue with notice. Trial by jury, April Term, 1883, Royce, Ch. J., presiding. Yerdict for the defendant. The defendant’s evidence tended to show that the road was dangerous and impassible for weeks at a time, sometimes by reason of washouts and at other times by reason of snow drifts and ice. There was no evidence that would justify the jury in finding that it was necessary for the defendant to pass over the plaintiff’s land.

Assumpsit. Fleas, general issue and Statute of Limitations. Trial by jury, April Term, 1883, Royce, Ch. J., presiding. Verdict for the plaintiff. Plaintiff’s specification: “To recover of the defendant plaintiff’s share of the estate of Sally Reed, deceased, mother of these parties, being what the defendant has in his hands in excess of his share of said estate, which excess the defendant promised to pay the plaintiff.”

The relator, in the complaint upon which this writ issued, alleged that he was imprisoned in the county jail in St. Albans and restrained of his liberty by Julius Halbert, the sheriff of the county of Franklin, and prayed that a writ of .habeas corpus directed to the said Halbert might issue requiring him to show cause why the relator was so by him imprisoned and restrained of his liberty.

Heard on tbe report of referees, September Term, 1882. Roycb, Ch. J., presiding. Judgment for the plaintiff. The facts are sufficiently stated in the opinion. There can be no recovery, if the bull escaped over that portion of the fence which the plaintiff was bound to build, and which was out of repair. Tapper v. Clark, 43 Vt. 200; Keenan and wife v. Gavenaugh, 44 Vt. 268 ; Trow v. Yt. G. li.

[In Chancery.] Bill to foreclose a mortgage and for an accounting between tenants in common. Heard on bill and a master’s report, December Term, 1888. Royce, Chancellor, ordered that a decree be entered for the petitioner for the amount found due by the master — $4,591.19. The petitioner prayed for an accounting and a foreclosure. There was no contention as to the sum named— $1,287 — in the mortgage.

Assumpsit. Pleas, general issue, special pleas in bar, and notice. Trial by jury, September Term, 1883. Royoe, Oil. J\, presiding. Yerdict for defendants.

Indictment charging adultery. Heard on demurrer,’ April Term, 1883, Koycr, Ch. J., presiding. Demurrer overruled, and cause passed to the Supreme Court.

Action on the case to recover damages claimed to have been caused by the negligence of the defendant’s servants. Trial by jury, April Term, 1883, Royoe, Oh. J., presiding. Yerdict ordered for the defendant. The plaintiffs are husband and wife; and the action was brought to recover for injuries received by the wife. The defendant is an incorporated village.

Action to recover damages claimed to Lave been caused by turning surface water and sewage on to the plaintiffs’ land. Heard on the report of a referee, September term, 1883, Roycb, Ch. J., presiding. Judgment for the defendant.

<p> Incorporated Village. </p> <p>The plaintiff was authorized by its charter to construct sewers; but the defendant, without taking any of the steps provided by the charter to get the village to build the .sewer, procured tiles and an employe of the plaintiff, and, on his own motion, built a sewer across his land. It did not appear that the village ever accepted it, or was under any obligation to build or maintain it. Held, that the defendant was liable for the value of the tiles and the labor.</p> <p>2. Nor can the defendant successfully claim that the tiles were owned by one E. who furnished them for the plaintiff, when in need of them, as the plaintiff, at the time these were delivered to the defendant, charged him and gave E. credit for them.</p>

Trover to recover the value of a promissory note. Trial by jury, September Term, 1883, Royce, Ch. J., presiding. Judgment for the plaintiff. The case appears in the opinion.

<p>Mortgage. Assignment. Innocent Purchaser. Answer, Exception.</p> <p>1. The rights of an innocent purchaser of real estate are superior-to those of an assignee who fails to have the assignment of the mortgage properly recorded, the mortgagee discharging the mortgage, and there being nothing to put the purchaser on inquiry.</p> <p>2. The answer was not excepted to, and although inartiflcially drawn, it is held sufficient.</p>

<p>G-rancl Jurors. B. L. ss. 884, 1616.</p> <p>1. Twelve of tlie eighteen grand jurors required to be summoned can find a legal indictment, although the other six do not act.</p> <p>'¿. The wife of one of the grand jurors, who found an indictment against the respondent charged with misapplying and diverting the funds of the St. Albans Trust Company, was a depositor in the said company in her own right. Held, that the grand juror was not disqualified.</p> <p>3. A practice under a statute should have weight in construing it.</p> <p>i. K. L. ss. 1616, Í617, grand jury, construed.</p>

Assumpsit. Plea, the general issue. Trial by jury, February Term, 1883, Royce, Ch. J., presiding. Yerdict ordered for the plaintiff.

[In Chancery.]. Bill in Chancery. Heard on bill, supplemental bill, answer, traverse, and testimony, March Term, 1882.

Special Assumpsit. Heard on the report óf a referee, March Term, 1882, Hedeield, J., presiding. Judgment for the defendant.

Action brought upon sec. 4152, H. L. Trial by jury, March Term, 1884, Powers, J., presiding.

Audita Querela. Heard by the court., March Term, 1884, Powers, J., presiding. Judgment that the justice judgment be annulled and set aside, and for complainant to recover one cent damages and costs.

Assumpsit. Plea, off-set. Trial by court, September Tern), 1880, Redeield, J., presiding.

Eerlevin for a liorse. Elea, general issue and notice tbat the defendant was collector of taxes in school district No. 13 in Woodbury. Trial by court, March Term, 1882, Eedeield, J., presiding. Judgment for the defendant. The vote of March '25th, 1.879, mentioned in the opinion, is stated in the third head note. The town could not rescind the vote. Stoddard v. Gilman, '22 Yt. 568. The vote of May 11th did not sufficiently describe the new district.

<p>Appeal from the Probate Court. Heard by the court, March Term, 1882, Eedeield, J., presiding. Judgment that the judgment of the Probate Court be reversed, and that the certified copies of the will and the probate thereof be admitted.</p> <p>The law of domicile at the time of making the will must govern as to capacity or incapacity. Personal property is distribnted according to the law of the domicile. Story Conf. Law, ss. 467, 468; 2 Greenl. Ev.. s. 668 ; 1 Binn. 336 ; 10 Mo. 543; 13 Ohio, 458; 27 Miss. 847.</p>

Trespass and trover. Trial by jury, September Term, 1883, Eedeieíd, J., presiding. Yerdict ordered for the plaintiff. The plaintiff offered to prove that the defendant executed and delivered to him a chattel mortgage of the property named in the declaration to secure a $350 note; and that the defendant had sold the property without the consent of the plaintiff in writingto sell the same.

Trustee Process. Heard on a commissioner’s report, March Term, 1881, Eedfield, J., presiding. Decision of the commissioner affirmed. Both parties appealed. The principal defendant recovered two judgments, one against the Westchester Insurance Company, and one against the Planters’ Insurance Company, for loss by fire. Before judgment was rendered in the said two spits, the plaintiff commenced this trustee proceeding. The court had jurisdiction over the trustees.

<p>National Bank, Usury. U. S. Bev. Sts. s. 5198.</p> <p>The Federal statute provides the only remedy, and that by way of penalty, against a national bank, for the taking of usury ; thus, the plaintiff had brought a suit in the U.S. court to recover the penalty prescribed by the said’statute, and had obtained a judgment. Held, that he could not thereafter maintain an action of assumpsit in a State court to recover the excess above the legal interest paid to the bank.</p>

<p>Trustee Process. Heard, March Term, 1881, Powers, J., presiding. Judgment that the trustee be discharged.</p>

<p>Question of costs on the discontinuance of bastardy proceedings. Heard, March Term, 1884, Powers, J., presiding. The court ruled that the defendant was entitled to costs.</p>

<p> Attachment. </p> <p>An attachment of all of the debtor’s real estate in a certain town, followed by a levy upon a “sawmill," includes a circular saw mill, which is in and. constitutes a part of the saw mill.</p>

<p>Appeal. Note. Affidavit. li. I., s. 1061, sub. 3.</p> <p>Under the statute, E. L. s. 10G1, sub. Ill, an action oí assumpsit, with the common counts declaring for $50, and a special count on a promissory note for $25, is appealable, without an affidavit of defence, where the ad damnum in the writ is $30.</p>

<p>Action by the assignee in insolvency of Sarel A. Sawyer to recover money paid to defendant by said Sawyer. Plea, the general issue. Trial by jury, June Term, 1883, Yeazey, J., presiding. Verdict for the plaintiff. Both the defendant and Sawyer had lived for many years in Peru; and the witness,, mentioned in the opinion of the court., also lived there.</p> <p>It appeared that the money was paid to the defendant in 1881, but within three months of the filing’ of the petition in insolvency against Sawyer, which was on the lVth day of February, 1881; and that there was no evidence to show that the defendant’s sister knew anything about the financial condition of Sawyer. The testimony of Geo. K. Davis was as follows:</p> <p>Q. Wliat, if any, was the reputation in a financial point of view of Sarel A. Sawyer during those years — whether good or bad S</p> <p>A. I think it was generally conceded by people that he had a greater load than he could carry of debts.</p> <p>Q. Whether you had as tax collector taxes unpaid against him ?</p> <p>A. Yes, sir, he was always behind with his taxes right along.</p> <p>Q. You may state whether or not you solicited payment of those taxes from time to time ?</p> <p>A. Oh, yes! every tax bill that came out. Sometimes he would pay some on account, but was always about so far behind.</p> <p>Albert Simonds testified that he lived in' Peru about one-lialf mile from defendant’s store; that, at the time he went into insolvency, Sawyer had for five or six years been owing him, as guardian and otherwise, about $450; that he had spoken to Sawyer about his claim, and called on him for money, but had collected none on it, interest or'principal, but had had some lumber of him; that Sawyer was badly in debt; and that the speech of' people for two or three years prior to his failure would say that he had a big load on his shoulders, and it was hard to pull through.</p> <p>The plaintiff’s counsel then asked the witness the following questions, which were seasonably objected to by defendant’s counsel, but the court overruled the objection and admitted the evidence, to which ruling the defendant excepted:</p> <p>Q. Why didn’t you collect your claims ? A. I dare not do it.- Q. Tell why. A. Because I was afraid they would throw him where I would not get so much as I would to let him alone.</p> <p>The defendant claimed, and asked' the court to hold, that this action could not be maintained against him, because the debt against Sawyer was not Ms debt, but a debt due to Ms sister, and was paid to him as her agent; and further asked the court to direct a verdict for him; but the court declined so to hold, and held that the debt against Sawyer should be treated just as if it liad been defendant’s debt against him and not his sister’s; and submitted the case to the jury as though it was a debt against Sawyer in favor of the defendant himself and not his sister.</p> <p>The other facts are sufficiently stated in the head notes and the opinion of the court.</p> <p>This action cannot be maintained' against this defendant, because he acted simply as the agent of Ms sister in receiving the money, and paying it to her before the insolvency proceedings were commenced.</p> <p>He was not the person who “ received such payment,” as contemplated by the statute, — R. L., s. 1860. What one does by his agent he does by himself. The act of the defendant was not immoral or dishonest. The court should have ordered a verdict for the defendant. Hail v. Huntoon, 17 Yt. 244; Cook v. Whipple, 55 N. Y. 164; Bank v. Warren, 15 N.Y. 577; Colvin v. Holbrook, 2 N. Y. 128; Downer v. Brackett, 21 Yt. 599; fn re Bierce, 21 Yt. 611; Bump Bankr. 796. The plaintiff’s action should have been brought against the principal, and not the agent. Bump Bankr. 807,819; Mayer v. Herman, 1-OBlatchf. 256; Spear v. Braintree, 24 Yt. 414. There was error in the charge as to preferring creditors. Forbes v. Howe, 102 Mass. 427; Bump Bankr. 798, 807. If the defendant’s act in receiving the money was not wrong, then a demand was necessary. Carpenter v, Snell, 37 Yt. 255; Stoddard v. Chapin, 15 Yt. 443.</p> <p>The action was brought properly against this defendant. The agent is always personally liable if he has obtained money wrongfully, or fraudulently, or as a wrong-doer. Story Ag. 358; 1 Am. Lead. Oas. 640; Smith Merc. L. 201; 1 Bouv. Law Die. 103; Selw. N. B. 93; Sadler v. Evans, 4 Burr. 1984; Bennett v. Ives, 30 Conn. 329; II. S. Bank v. Bank of Washington, 6 Pet. 8. No demand was necesssary. Tapley v. Forbes, 11 Allen, 24. There was no error in the charge of the court. 16 Wall. 592; Bump Bankr. 408, 413, 198.</p>

<p>Taxation. Tax Law of 1880.</p> <p>1. A collector’s justification must show a legal tax, a legal list, and that liis authority was legal.</p> <p>2. The tax law of 1880 required that real estate should be appraised in 1881, and the appraisal substituted for the last quadrennial appraisal. In 1882, before the expiration of the then quadrennial period,' instead of adopting the appraisal of 1881, and using such a form as the statute "contemplates for making an annual list, the listers appraised the real estate and used the form for making- a quadrennial appraisal. Held that the list was invalid.</p> <p>3. The right to go upon a third party’s land to cut and remove the woodbind timber for twelve years, and to build necessary roads and buildings, is not such an interest that it can be appraised and set in the list as real estate, the purchaser having power to remove the building.</p>

Assumpsit. Plea, the general issue. Trial by jury, December Term, 1883, Veazey, J., presiding. Verdict ordered for the defendant. There was not an accord and satisfaction. Preston v. Grant, 34 Vt. 203 ; Blair v. Ward, 69 N. Y. 115 ; Bolton v. Hillersden, 1 Ld. Baym. 224; Her. Est. 341, 346 ; Bliss v. Stewart, 65 N. Y. 444 ; Jewett v. Miller, 10 N. Y. 403; Brown v. Bowen, 30 N. Y. 514 ; l^ayne v. Burnham, 62 N. Y. 69. The plaintiff was entitled to- the interest.

<p>Trespass for an assault and battery on the plaintiff wife. Plea, the general issue, with notice that plaintiffs had never been lawfully married, that said Betsey NT. was the lawful wife of-one Blunt, and of self-defence.</p> <p>Trial by jury, December Term, 1882, Veazey, J, presiding. Yerdict for the plaintiff's. The plaintiff’s evidence tended to prove the assault, and that they were husband and wife; the defendant’s evidence tended to support his plea and notice, and to prove abusive language • as a provocation. The plaintiff, Betsey M., testified that she was never married till she married the said Gideon. On cross-examination she said she had one child before she was married. The defendant’s counsel then asked her who was the father of the child. The court excluded this question. The defendant offered' to prove by a witness, who had known her, that he.had heard that said Betsey M. had lived with said Blunt as his wife for a short time in another town some ten or twelve miles from the place where the witness resided. This was also excluded.</p> <p>The plaintiff improved one Nichols as a witness, who testified that he was 43 years old, thaf he had always lived in Berlin in the State of New York, that he had known the said Betsey M. since she was a child, that she had always lived in that town with her mother until she married the said Gideon; that he was a shirt manufacturer, and she had worked for him since about 1854, making shirts, that he sent the work to her since her marriage with said Gideon, and she came to Yermont to live; that her name had always been on his books, and he had dealt with her as an employe. This witness was allowed to testify against the objection of the. defendant, that he never knew or heard of her marriage until she married the said Gideon, that her maiden name was Betsey Maria Cross, and that she always went by that name until her said marriage. The other facts are sufficiently stated in the opinion.</p> <p>cited as to self-defence: 50 Yt. 142 ; 43 Yt. 417; 13 Yt. 254 ; 2 Wharf. Crim. Law, s. 1258 ; as to omission of the court to charge that the provocation mitigated the damages: 21 Yt. 129; 28 Yt. 226; 16 Yt. 268 ; 39 Yt. 565 ; 40 Yt. 495; 2 Greenl. Ev. 262; that the question as to the paternity of the child was admissible: 52 Yt. 36 ; also, the.testimony of the witness who had heard that the said Betsey M. had been married to one Blunt: 33 Yt. Ill; that the said Gideon was not a witness: 33 Yt. 20; 43 Yt. 393; 2 Steph.* N. P. 1758. The Eevise'd Laws repealed the Act of 1863, No. 14.</p> <p>cited to sustain the charge of the court as to self-defence: Smith v. Wilcox, 47 Yt. 537; 2 Greenl. Ev. s. 95 ; 3 Ib. s; 116 ; testimony of loss of memory admissible: 2 Greenl. s. 89; that testimony of witness who had heard that the said Betsey M. had boon married to one Blunt was not admissible: Stearns v. Joyal, 48 Yt. 291; 1 Greenl. Ev. s. 107 ; that said Gideon was a witness: 1 Bl. Com. 443 ; 49 N. Y. 250 ; R. L. s. 1001.</p>

Assumpsit upon two promissory notes — one dated March 23d, 1875, given for $1,000 and signed, “R. T. Hurd, C. F. Clark”; the other dated July 26th, 1875, given for $800 and feigned, “R. T. Hurd & Co., R. T. Hurd.” Fleas, the general issue, release and discharge of suit; replication, that there was no consideration for the release. Trial by court, December Term, 1883, Yeazey, J., presiding. Judgment for plaintiff on both notes.

<p>Criminal Lato. Breaking and entering with intent to Commit Larceny. Larceny in B. Z. ss. 4133, 4134, means not only Grand but Petit Larceny.</p> <p>Tlie respondent was found guilty of breaking and entering a church in the day time, and stealing property worth less than seven dollars; and was sentenced to live years’ imprisonment. Held, that tlie word larceny, as used in the¡ statute, R. L. s. 4133, includes not only grand but petit larceny; and, consequently, that there was no error in the sentence.</p>

<p>Assumpsit. Heard on the report of a referee, December Term, 1882, Eoss, J., presiding. Judgment for the plaintiffs. The facts are sufficiently stated in the opinion and the head note, except the following from the report:</p> <p>“ The plaintiffs were hardware and cutlery merchants in Boston, and their travelling salesman was Thomas H. Baldwin. Baldwin knew the details of the arrangement between Fletcher & Co. and Haskell & Son, and how they were doing business, and the extent and limitations of their agoimy. Plaintiffs were creditors of Haskell & Son at the time of their failure and accepted twenty-five cents on the dollar of their debt. In September, 1878, Baldwin commenced to take orders from Haskell & Son for goods from the plaintiffs, and prior to June 24, 1879, had taken ten different orders for goods which were filled and forwarded by plaintiffs to Haskell & Son, agents. These orders were shown to, and approved by, Fletcher & Co. before they were sent to plaintiffs; and Fletcher & Co., paid for all the goods so sent.</p> <p>On the the 24th of June, 1879, Baldwin went to the store of Haskell & Son, and they looked over the goods, to see what was needed, and gave an order for goods which Baldwin forwarded to plaintiffs. Baldwin was in a hurry to take the train, and did not take the order to Fletcher ifc Co. to get the same approved by them. I did not find that Baldwin intended to give credit to Haskell & Son for this bill, or that Haskell & Son understood this bill was to be purchased on their personal credit; but Baldwin assumed it would be all right and would be paid by Fletcher & Go.</p> <p>Baldwin forwarded the order to the plaintiffs, and plaintiffs sent the goods by railroad to St. Johnsbnry, directed to Haskell & Son, and sent a bill of the same to Haskell &Son. The word “agent” was omitted in the bill of the goods and in the direction on the goods. The plaintiffs charged the bill to the account of “ Haskell & Son, agents.” I find that when Baldwin transmitted said order to the plaintiffs he omitted the word “ agents ” after the names of Haskell & Son. Yery soon after the goods arrived at the depot in St. Johnsbury they were attached on a writ in favor of A. II. McLeod, who had a debt against Haskell & Son and had declined to accept the compromise they made with their creditors. On learning that the goods had been attached Fletcher & Co. claimed them, and Haskell & Son returned the bill to the plaintiffs to have the same corrected by having the word “ agents ” added, which was done, and the bill sent back corrected; and the plaintiffs also wrote to have Fletcher & Co. claim the goods and plaintiffs would stand the expense of any litigation there might be about them. * * * Haskell & Son, agents, continued to carry on business under their arrangement with Fletcher & Co. until January, 1880, when they procured a man to pay up their debt to Fletcher & Co., and what money Fletcher & Co. had advanced to purchase goods, including the bill in dispute, and take the assets of the concern.</p> <p>* * * This suit is defended by said McLeod. * * * Haskell & Son, were to have the right to pay Fletcher & Co. their full debt and become the owners of the goods and the avails of the business.”</p> <p>cited on the question that the transaction was a fraud on the creditors of Haskell & Son: Webster v. Denison, 25 Yt. 493; Sawyer v. Joslyn, 20 Yt. 172; Kitchen v. Spear, 30 Yt. 545; Benj. Sales, s. 847 ; that there was no ratification of the acts of the agent: Whar. Ag. ss. 65, 74.</p> <p>The referee finds that the Haskells were agents of Fletcher for certain purposes ; that these purposes were known to the plaintiffs; that the plaintiffs had frequently sold goods to 'Fletcher through the Haskells by virtue of this arrangement; and that the sale in question was, in the opinion and belief of both plaintiffs and the Haskells, made to Fletcher. Under these circumstances, it became the duty of Fletcher, if he did not intend to abide by the contract which his agents had made, to disaffirm it immediately upon obtaining knowledge thereof. 1 Parsons Con. 51.</p>

[In Chancery.] Bill praying for an injunction to restrain the defendant from building a wall and obstructing the orator’s carriage-road. Heard on bill, answer, and the report of a special master, December Term, 1882, Bowers, Chancellor. Decree pro forma for the orator.

[In Chancery.] Bill in chancery for an accounting and foreclosure. Heard on bill, answer, traverse, master’s report, and exceptions thereto, at chambers, Howell, chancellor. Bill pro forma, dismissed.

<p>Action to recover the penalty provided in section 2 of No. 117 of the acts of 1882. Appeal from the City Court of Burlington. Heard on motion to dismiss, September Term, 1883, Tart, J., presiding. Judgment pro forma for the defendant. The defendant moved to dismiss for that (3) the City Court and the County Court did not have jurisdiction ; (2) that the plaintiff could not maintain the action in his own name as a common informer; (3) that the writ issued illegally against his body; and (4) that the statute in question is unconstitutional and void.</p> <p>The writ was properly issued against the defendant’s body as the action is an action ex delicto. Barnes v. Tenney, 52 Yt. 557. The statute is constitutional. The prohibition is aimed at the operations of the marauder, and is intended to prevent the unnatural and wholesale destruction of fish by the use of nets. It does not prohibit all fishing, but declares the use of destructive appliances illegal. The right of the States to regulate fishing in public waters within their jurisdiction is confirmed by every writer and court having the subject under consideration. 1 Kent Com. 439; Woolr. Waters; The King v. Montague, 4 B. & C. 598; Moulton v. Lihbey, 37 He. 432. The plaintiff can sue in his own name as a common informer. King v. Sainsbury, 4 Term, 45; Barnard v. Gostling, 2 East, 569; Eleming v. Bailey,' 5 East, 313; Kye v. Lamp here, 2 Cray, 295; Davis v. Edmonson, 3 Bos. & P. 382; Waters v. Day, 10 Yt. 487. All objections to this law are fully disposed of by applying to this case the rules as to the interpretation of statutes as laid down by the court in Henry v. Tilson, 17 Yt. 479; State Treasurer v. Ciarle, 19 Yt. 129; Eiyegate v. Wardsboro, 30 Yt. 746. See Bennett v.Ward, 42 Yt. 80; Hewman v. Waite, 43 Yt. 587; Lewis v. Brainerd, 53 Yt. 510.</p> <p>The State is a party in interest, and the action should have been in the name of the State. H. L. s. 243; People v. Young, 72 111. 43.3. The act does not in terms, nor by any legitimate implication, confer any right of action upon a common informer; and it has been uniformly held from the earliest record of the question down to the present time, both in England and in this country, that no action, whether qui tarn or other, can be main tained by a common informer to recover a penalty, unless express authority to sue is conferred by the statute. This is necessarily true, both legally and logically, because a common informer, having sustained no loss or injury by the breach of a penal statute, and having no interest in the penalty until after it has been recovered, there is no right or interest in him upon which to base an action for the penalty. After the penalty has been collected, the informer may sustain an action against any person who holds the money for his proportion; he has then a vested interest. 1 Chit. El. 105; Bac. Abr. Action qui tarn A; 13 Bet. Abr. 196; JJarnard v. Gostling, 2 East, 569; Colburn v. Swett, 1 Met. 232; Fleming v. Bailey, 5 East, 513; Seward v. Beach, 29 Barb. 239; Chew v. Thompson, 9 N. J. L. 249. There was no authority in law for issuing the writ against the body. The act is unconstitutional; the regulations contained in it are not proper:</p> <p>1st. Because the act is not a regulation, but a prohibition.</p> <p>2d. That it is not proper to prohibit seine fishing in the waters of Lake Champlain, within this State, unless similar prohibitions are imposed by the State of New York and the province of Canada. ’</p> <p>3d. That there is no necessity for a restriction upon seine fishing in the interest of the inhabitants of the State, as the supply of fish, of all the desirable kinds for food which the lake affords, is largely in excess of the demand.</p> <p>4th. That the supply of fish in the lake has largely and constantly increased for the past thirty years.</p> <p>5th. That fishing is one of the industries of the State, affording employment and a livelihood to thousands of its inhabitants.</p>

<p> Promissory Bote. Covenants in Deed. Practice. Court. Jury. Foreclosure of Mortgage. Fffect of, as to Botes not in Decree. </p> <p>1. It is no defence.to a note given for real estate occupied by a lessee, who illegally refuses to surrender possession: as the coveifants in a deed are not against fictvtioxis claims.</p> <p>2. Nor is it a defence, that the mortgage securing this with other notes had been foreclosed, the decree not including the note in suit, and, after the foreclosure had become absolute, the mortgagees had sold the premises, but for a less sum than the amount of the decree.</p> <p>3. When there is no evidence to support an issue, it is not error for the court to withdraw such issue from the consideration of the jury.</p> <p>4. A statement in exceptions that a certain fact appeared, is equivalent to stating that there was no controversy in regard to it.</p>

Trespass on the freehold. Pica the general issue. Trial by jury, September Term, 1879, Piurpoint, Ch. J., presidi ng Yerdict for the plaintiff. It was admitted that the plaintiff liad never, prior to the alleged trespasses, taken actual possesssion of any land south of the line so claimed by the defendants as the line between said two lots.

<p>Special Assumpsit to recover damages for a breach of contract of employment. Trial by jury, September term, 1883, Tart, J., presiding. Verdict for the plaintiff.</p> <p>The defendant’s counsel requested the court to charge:</p> <p>VI. If the jury find that the plaintiff was an incompetent book-keeper, salesman, clerk, and manager of help, was inaccurate in accounts, ignorant of general business rules, ungracious and disagreeable in his contact with customers and employes, and was an inefficient assistant and “right hand man,” the plaintiff cannot recover.</p> <p>VII. If the jury find, that, in general, his conduct was such as would “ prevent the mutual agreement of the plaintiff and defendant from being carried out,” “ or such as was calculated seriously to injure the defendant’s business,” or was character ized by “ palpable inefficiency,” or was “ such as to drive away customers,” then the verdict must be for the defendant.</p> <p>The court ruled that the defendant’s evidence did not prove or tend to prove any sufficient cause for discharging the plaintiff.</p> <p>The court should" have complied with the defendant’s requests. Derby v. Johnson, 21 Vt. 17; Sell. Tom. Eel. 614; 3 Wait Pr. 600 ; 4 lb. 397; Newman v. Reagan, 65 G-a. 512; ü. S. Dig. (1882) 596.</p> <p>The evidence did not prove nor tend to prove a cause for discharging the plaintiff; therefore, there was no error in the ruling of the court.</p> <p>Forsyt/i v. Hastings, 27 Yt. 546; Sanderson v. Anderson, 2 Hill, 486 '; 1 Wend. 514 ; 19 E. C. L. 504; 1 Cow. 345 ; 12 N. H. 194; 41 Yt. 66 ; 20 Yt. 620 ; 30 Yt. 592 ; 46 Yt, 343.</p>

<p>Appeal from the .Probate Court. Heard September Term, 1883, Taet, J., presiding. Judgment of the Probate Court affirmed.</p>

<p> Master and Servant. JSTuisanee. Presumption. </p> <p>D. owned a liouse in the city of Burlington. The tenant who occupied the house sent to G., a plumber, to repair the drain; and he, after examining it, decided to connect it with the public sewer. JD. lived in California; and the defendant, who was her agent only for the purpose of collecting and transmitting the rent, when called upon by G., told him that he would pay the expense for connecting the drain with the sewer, but at tlie same time expressly informed G. that he took no responsibility in directing the work, and that authority to proceed with it must come from some other source than himself. G. dug a ditch in the street and left it without any guard, and the female plaintiff while travelling at night fell into it and was injured. Held, that the defendant was not liable as he was not the promoter of an unlawful act: and that the presumption was, that the defendant contemplated and intended that G., if he concluded to do the work, would obtain lawful authority and direction, both from the owner of the premises, and from the city authorities.</p>

<p>Assumpsit. Heard on a referee’s report, September Term, 1883, Tart, J., presiding. Judgment for the plaintiff.</p>

<p>Indictment charging the respondent with burning a sugarlionse. Heard on demurrer, April Term, 1884, Powers, J., presiding. Indictment hold sufficient.</p> <p>cited Commonwealth v. Maxwell, 2 Pick. 138 ; Commonwealth, v. Hart, 11 Cush. 136 ; State v. Stolces, 54 Yt. 179 ; State v. Somers, 3 Yt. 156; State v. Baker, 18 Yt. 195 ; State v. llodgdon, 41 Yt. 139 ; United States v. Cook, 17 Wall. 168 ; Arch. Or. PI. 45.</p> <p>cited United States v. Cook, 12 Am. Law Reg. 682; Commonwealth v. Squires, 1 Met. 258; Lamed v. Commonwealth, 12 Met. 240 ; Commonwealth v. Reynolds, 122 Mass. 454; 15 dray, 480; 39 Yt. 60 ; State v. Thornton, ante, 35.</p>

<p>Amendment of Return by Officer after Judgment has been Rendered. Assignee. Evidence. Practice. Gen. St. 633, s. 38 ; Gen. St. c. 15 s. 36.</p> <p>1. The County Court has the power to order a cause, in which a judgment had been rendered at a former term, to be brought forward on to the docket, and allow the sheriff to amend his return as to the attachment of property ; and this is so, although the defendant subsequently to the attachment had made a voluntary assignment for the benefit of his creditors, and the assignees claimed to hold the property as against the officer, and an action of trover was pending in his favor against them for conversion of the said property ; hut they had not turned the property or its proceeds over to the creditors.</p> <p>2. The Court could not allow an amendment, when it would injuriously affect the rights of bona-fide purchasers without notice, or attaching creditors; but the assignee of a bankrupt takes the estate subject to all existing equities.</p> <p>3. The sufficiency of the amended return is not determinable under the motion to dismiss.</p> <p>4. The officer’s affidavit and the certified copy of the record of the writ and return left in the town clerk’s office were admissible as evidence on the hearing of the petition.</p>

<p>[In Chancery.]</p> <p>Bill to restrain a husband from interfering with his wife’s separate estate. Heard on bill, answer, traverse, and master’s report, February Term, 1883. Redeield, Chancellor, by a strictly pro forma decree, ordered the bill dismissed.</p> <p>The bill alleged, that the oratrix was married to the defendant Geo. H. Keniston, June 4-, 1873, that she was still his wife, and brought the bill by her next friend; that in May, 1879, said Geo. H. was carrying on business as a general merchant, and had become largely involved in debt; that at this time he had a stock of goods on hand worth about $2,000 in cash, which he assigned to Adam White and Royal Lyon to secure them as sureties on a bank note given by said Goo. H. for the sum of $1,500 ; that said White and Lyon took possession of said goods and the store of said Geo. II., under said assignment, and put the oratrix into the store as their agent to sell the goods; that she proceeded to sell the goods and apply the proceeds in payment of the bank note, and that on or before January 1, 1880, she had fully paid the same ; that there then remained remnants, from $500 to $700 worth ,of the goods, which the said White and Lyon afterwards turned over to said Geo. II.; that the oratrix was to have $4 per week for her services, to be paid out of the goods;'that site hack never been paid, and that when the goods were turned back as aforesaid, it was understood and agreed by the parties that the suit due her was in the remainder of the stock so returned. The hill ■also alleged that subsequent to the return of the goods, “on or about March, A. I). 1880, it was agreed between your oratrix and said Geo. II. that your oratrix should have said residue of said stock, and use of said store hereinafter mentioned, and that slie should go on with said business in her own right, and have the same as her own separate property, managing the business and paying all debts which she might contract in and about the same;” that the oratrix relying on this agreement carried on the business in her own right until the present time in accordance with the agreement; that on or about the 23d of November, 1881, the said Geo. IL, being extremely hostile to the oratrix, took possession of the store and stock of goods, and claimed to own them; that the said store and homestead of said Geo. H. were encumbered by a mortgage for all or nearly all they were worth ; that the oratrix with the approval of said Gro'. LI., entered into an arrangement with the mortgagee, defendant Hidden, by which .she was to pay the mortgagee, and that the mortgagee was to assign to her such part’ of the mortgage debt .and mortgage as she should pay; and that she paid seveial hundred dollars. The prayer was that the oratrix be protected in her interest in the mortgage debt so paid by her, and that the said Geo. ,IL. be enjoined from interfering with the said goods.</p> <p>The answer denied that the oratrix was doing business in her own right; denied the arrangements alleged to have been entered into “ on or about March, A. H. 1880 ;” and that the oratrix liad any interest whatever in the goods.</p> <p>The master found in part: That the defendant Keniston and the oratrix were husband and wife ; that Keniston iu May, 1879, owned a homestead, outbuildings and a store, heavily mortgaged to the defendant Hidden ; that at this time Keniston, being involved, and selling general merchandise, assigned his stock of goods to the said White and Lyon to secure them as sureties for him on a debt iie owed the bank; that they took possession of the goods and store, and “for the purpose of saving expense iu converting said goods into money * * * to pay said bank debt, the said White and Lyon, with the consent of defendant Keniston, entered into an agreement with said oratrix whereby she was to run said store for them for $4 per week ; but nothing-was said as to how or by whom she was to be paid ; that thereupon the oratrix entered into the service of said White and Lyon under said agreement, and ran for thorn said store until the 31st day of December, A. D. 1879, — 32 weeks and three days — when the bank debt, which said assignment had been made to secure, having been paid, except a small balance of a few dollars subsequently paid, viz: Jan. 7, 1880, the said White and Lyon ceased to exercise any control over the management of said' store, and the oratrix notified the firms with whom she had been dealing in the name of White and Lyon, that the firm of White and Lyon had been succeeded by herself; but this was without the knowledge of defendant Keniston, who was then in Maine or New Hampshire; and from that time until the 23d day of November, A. D. 1881, ordered goods in her own name, kept the books, contracted and paid debts, and ran the store without objection on the part of said defendant Keniston; that during; this time all the goods she bought were ordered in her own name. -</p> <p>The master further found, that at the time of said assignment to said White and Lyon, said house, store, barn, shed, and land were subject to a mortgage amounting on the 10th day of January, A. D. 1880, to $2,862, owned by said defendant Hidden,, all of which was then duo and that said Hidden was threatening-to foreclose the same ; that on the 19th day of January, 188Ó,. said oratrix without the knowledge of defendant Keniston, entered into an agreement in writing with said defendant Hidden, wherein said Hidden agreed to forbear foreclosing said mortgage and give and deliver to said oratrix one of said mortgage notes for the sum of $200, which it was then talked was about the amount of extra interest which had been paid Hidden on the mortgage debt before that time, if the said oratrix would at that date pay him, the said Hidden, the sum of $162, and would also pay him the further sums of $250 on or before the 10th day of Jan nary of each of the years 1881, 1882 and 1883, and the sum of $1,750 on or before the 10th day of January, 1884, with interest annually, with the further verbal condition that said oratrix was to run and keep said stoi’e open during the time covered by said payments; that the said Hidden further agreed, in said writing, that he would give said oratrix receipts for all sums paid by her towards said mortgage, and that when the amount of said mortgage was paid, lie would assign to her said mortgage and note or such part of said mortgage and note as such oratrix should pay; that said oratrix then and there accepted said agreement in writting, and paid said sum of $162 and verbally agreed to run said store and keep it open during the time covered by said payments, and the said Hidden then and there gave up and' delivered to said oratrix said note for $200, which she now holds, and which on the 10th day of January, 1883, amounted to the sum of $238.16'.</p> <p>The master further finds, that, from July 28, 1879, until September 7, 1879, and from October 30,1879, until on or about March 20, 1880, the defendant Keniston was away in Maine and New Hampshire, selling pills and patent medicines, and that he had no knowledge when said bank debt was paid, or of the manner in which the oratrix was conducting the business in said store, or of the agreement with said Hidden-as to said mortgage, until his return home on or about March 20, 18S0, when at the request of the oratrix he was informed by said White, who was present when said agreement between said Hidden and the oratrix was made, executed and delivered, that 'said bank debt was paid, and of the agreement betwen said oratrix and said Hidden, and that defendant Keniston, upon receiving this information, expressed himself well pleased at what the oratrix had done in those matters.</p> <p>The master further finds, that said defendant Keniston remained at home at this time from on or about said March 20, 1880, until June 24, 1880, taking no part in the management of said store, selling no goods, and in no way asssisting in keeping the books that were used in connection with said store business, but doing more or less of the freighting necessary to be done in said bnsines during that time.</p> <p>The master further finds, that although said White and Lyon ceased to have any management and control of said store and the business carried on therein after December 31, 1879, they did not reassign said goods to anyone until May 21, 1880, at which time the master finds they reassigned the goods then in the store to said defendant Keniston, and at the same time took from said defendant and the said oratrix a receipt in full for rent of store and services of said oratrix, and also at the same time the said White took from said defendant a note for the sum of $175, it being the amount still remaining unpaid of $200 borrowed of said White by the said oratrix .with which to pay the said Hidden the said sum of $162, upon said mortgage indebtedness; which said noté of $175 to the said White the said oratrix afterwards paid out of the avails of said store business.</p> <p>Tiie master further finds, that all. said defendant has ever received from said White and Lyon for tho rent of said store, or for the services of said oratrix, was the reassignment of said goods, and that said oratrix has never received anything for her services. * * *</p> <p>The master further finds, that in the year 1881, in the presence of the said oratrix, the defendant made out his inventory of tax-' able property and included therein his real estate and the goods in said store, and offset the debts contracted in said store business, as well as his own undisputed debts, including the Hidden mortgage indebtedness, and that tho oratrix made out no inventory of taxable property during that or any other year in her own name, but thereafterwards paid from the avails of said store-business the taxes assessed upon the list made out upon said defendant’s said inventory.</p> <p>* * * * The master further finds, that on the 23d day of November, 1881, said defendant Keniston took possession of said store and stock of goods, and continued to hold the same, and prevent the said oratrix from in any way having anything to do with the same until tlie bringing of this bill to enjoin said defendant.</p> <p>The oratrix at the hearing claimed title to the goods by virtue of an agreement made with White and Lyon at the time of said assignment of said goods that said oratrix was to have the balance of said goods remaining after paying said bank indebtedness for her said services, and that said defendant assented to sncli agreement, and abandoned all.claim to any interest and property in said goods so assigned.</p> <p>The defendant requested the master to report that the oratrix testified at said hearing that she claimed no interest, title, or property in said stock of goods except by said agreement with said White and Lyon made at the time of said assignment, and lie accordingly reported that said oratrix did so testify upon cross examination, but when her attention was again called to that point upon re-examination, he found that she testified that she acquired an interest to said goods by virtue of said agreement with said White and Lyon and also by the agreement with defendant claimed to have been made about March 20, 1880.</p> <p>The master failed to find that any such agreement, or any agreement as to said services different from the one herein before found, was then made, or that anything was then said as to how said oratrix was to receive her pay, or that said defendant then and there abandoned any claim to any interest and property in or to said goods.</p> <p>The oratrix further claimed title to said goods at the hearing as well in her bill as by her evidence, by virtue of an arrangement between said defendant Keniston and herself made on the day of said defendant’s return home on or about March 20, 1880, wherein oratrix claimed it was agreed between them that said oratrix should have said j^idue of said stock and use of said store, and that she should go on with said business in her own right, and have the same as her own separate property, managing the business and paying all debts which she might contract in and about the same, and at all times saving the said defendant Keniston from all expenses or liability in and about the same.</p> <p>The master failed to find that any such arrangement was made as claimed by said oratrix, or that any arrangement was made at that or any other time whereby said oratrix was to have said goods as her sole and separate estate.</p> <p>The master also found that the oratrix paid several hundred dollars on the Hidden mortgage, and that she held the mort^gagee’s receipts for the same. The other facts are sufficiently stated in the opinion of the court.</p> <p>This suit is brought by the oratrix against her husband, defendant Keniston, and defendant Hidden, to determine and protect her rights and equities in and to the stock of goods, and in the mortgage held by Hidden. The contract with Hidden was exclusively for the benefit of the oratrix; and the husband expressed himself as “ well pleased ” with it. While the master failed to find ' a special arrangement, a special agreement between the husband and wife as to the goods, the report taken as a whole shows that the husband consented that she might have vand use the residue returned by White and Lyon. The defendant acquiesced in the conduct of his wife. No other inference can be drawn from the facts reported only that both parties understood that the wife was the sole owner of the goods returned after paying the bank debt, and also what she paid on the mortgage. The courts protect the rights of the wife, and recognize an understanding between her and her husband as to her separate property. Child v. Pearl, 43 Vt. 229 ; Delano v. Blanchard, 52 Vt. 585; Willard v. Dow, Sé Vt. 191; Ashworth v. Outram, 5 Ch. I). 928; s. c. Eng. R. 550, 557. It- was simply one way of making a reasonable provision for his wife; if reasonable, it will be sustained. 2 Story Eq. (6 ed.) s. 1375 ; Lucas v. Lucas, 1 Atk. 270; Tyler Inf. & Cov. s. 361. It i's a presumption of law that what goods, &c., he furnished her under the circumstances was an advancement. Bent v.Bent,éé Vt. 559; Whitten v. Whitten, 3 Cush. 191; 2 Story Eq. (6 ed.) s. 1204 ; Bennett v. Camp, 54 Vt. 37. When the husband permits his wife to take and have her own personal earnings, or personal property belonging to him, to use, to hold, or dispose of, for her own benefit under an understanding, either express or implied between them that she is to have, and may have the same as her own separate property, or where the husband acquiesces in the wife’s taking and using such property as and for her own separate estate, equity will treat the same as her separate estate, as between herself and husband.</p> <p>l^inney v. Fellows, 15 Vt. 585; Porter v. Bank, 19 Vt. 417; Cardell v. Ryder, 35 Vt. 47 ; Frary v. Booth, 37 Vt. 78, 89 ; Child v. Pearl, 43 Vt. 228 ; Spooner v. Reynolds, 50 Vt. 444 ; Barron v. Barron, 24 Vt. 375 ; Slanning v. Style, 3 JP. Wms. 337; Phelps v. Phelps, 20 Pick. 556 ; Fish v. Cushman, 6 Cush. 20 ; Sweeney v. Bank, 116 Mass. 384 ; Lovell v. FTewton, 4 C. P. Div. 7; s. c. 30 Eng. R. 369; Howard v. Bank, 40 Vt. 601; School. Dom. Rel. 285 n. 2; 2 Story Eq. (6 ed.) s. 1386; School. Ilusb. & Wife, ss. 296, 302, 385,402 ; 1 Parsons Con. (5 ed.) 366 ; Peterson da Wife v. Mulford, 36 N. J. L. 485. See Premo v. Hewitt, 55 Vt. 365.</p> <p>The master finds that there was no such arrangement as alleged in the bill. To establish the fact of a gift of a chattel from husband to wife there must be clear and distinct evidence ■corroborative of the wife’s testimony.' 1 Lead. Cas. Eq. 382, 395. The whole transaction must be established by evidence beyond suspicion : M’Leon v. Longlands, 5 Yes. 79 ; the evidence must be incontrovertible: Jennings v. Davis, 31 Conn. 134, 138; 2 Story Eq. ss. 137. 1381; there must be a clear and manifest intention of the owner to give: Gutting v. Gilman, 41 N. H. 151; a change of possession is necessary: Little v. Willetts, 25 Barb. 125 ; Brewer v-. Harvey, 72 N. C. 176 ; also, ■delivery: Moore v. Moore, 10 Eng. Eep. 800 ; Wheeler v. Wheeler, 43 Conn. 188 ; Carpenter v.- Dodge, 20 Yt. 595.</p>

Petition for writ of mandamus. We insist, that under this statute which confers upon a town such extraordinary powers, and for a special purpose, the town having voted its aid, and the required assent of the tax-payers having been obtained and the necessary records all duly made, they could not annul aud render inoperative such action of the town and its tax-payers had and performed under the votes of February 3d, by the rescinding votes of March 6th.

Heard on referee’s report, March Term, 1883, Rowelu, •!., presiding. Judgment for the defendant. The referee allowed two witnesses, P. H. Rutter and O. S. Howard, to testify that, about the same time that the plaintiff charged the intestate $1 per day for the use of his horse, he-charged them nothing for the use of the same horse. plaintiff’s specifications : Me. A. O. Howard, 1872. To E. D. Harris, Dr. July 22d. To use of my horse 14 days, - - - $14 00 1876.

Information filed by the state’s attorney, charging the respondent with refusing to attend and testify in a criminal cause, Heard on demurrer, September Term, 1883, Rowell, J., presiding. Demurrer overruled.

Trespass. Heard on the report of a referee, March Term, 1883, Rowell, J., presiding. The action was brought against Ephraim Moore and Marshall A. Moore. Judgment was rendered upon the report for Ephraim to recover, his costs, and in favor of the plaintiff against Marshall A., for the full amount found by the referee.

Trespass for an assault. Plea, general issue with notice. Trial by jury, September Term, 1883, Nowell, J., presiding. Yerdiet for the defendant. The court instructed the jury as to the testimony of one Higgins, that they were to inquire whether Johnson heard and understood what was being said; and that if he did not, of course no inference could be drawn against him on account of his silence. See Johnson v. Perry, 54 Yt. 459. The testimony of Higgins was hearsay.

<p> Evidence. Expert. Opinion. J?resumption. Master and Servant. </p> <p>1. In action to recover for injuries claimed to have been caused by the negligence of the defendant’s servant, a physician, who had examined the plaintiff on three different'occasions, was asked, “ From wliat you have known of his case heretofore, and what you have learned of his condition here to-day, what do you say about his being able to do heavy . work, and hard work?” and answered, “I don’t think it would be prudent for him to do hard work; and again, to the question, “ What is your opinion about his arm having been broken?” answered, “My opinion is that it was broken.” IMd, admissible.</p> <p>2. It is not sufficient for the master to give proper instructions to his servant to avoid liability; but he must also see that they are obeyed.</p> <p>3. It is presumed that a witness followed the directions given by the court.</p>

<p> Railroad. Evidence. Expert. Negligence. Contributory Negligence. </p> <p>1. In an action against a railroad company for damages caused by fires communicated by its engines, the testimony of its road-master, as an expert, was not admissible to prove, that its section man, who had charge of the section where the fire originated, was “ a careful, prudent, and attentive man ” in the discharge of his duties.</p> <p>2. Nor was evidence admissible as to the cutting and management of the weeds and vegetable growth on the margin of the road in other years, and as to the proper time for burning the same.</p> <p>3. The defendant’s duty was dictated and measured by the exigencies of the occasion. His negligence could not be disproved by the custom of other persons or corporations under similar circumstances.</p> <p>4. The charge of the court, q. v., as to contributory negligence, is sustained.</p>

<p>A.ypypeal from Probate Court. Fraud, Accident, and Mistake Statute, R. L. s. 1426.</p> <p>The petitioner filed a bond for appeal in the Probate Court, and he and his counsel understood that the probate judge would make the necessary papers; but he omitted to do so, supposing that he had nothing to do in • making them. The court below found that the petitioner was prevented from taking an appeal by mistake, and in its discretion allowed him to enter his appeal. Held, that there was no error; and that the decision was not revisable.</p>

<p>Action to recover for injuries received while traveling on the highway. Trial by jury, September Term, 1882, Windham County, Rowell, J., presiding. Yerdict for the plaintiff. The accident, resulting in the 'damage sued for, occurred January 14th, 1876. This suit was commenced January 13th, 1882. The defendant filed a motion to dismiss the cause, on the ground that “there is no law or authority for prosecuting”''the same. The court overruled the motion, and held that, notwithstanding the St. of 1880, the plaintiff could maintain his action.</p> <p>Notice : “I met with an accident upom the highway or road leading from the covered bridge across the West river, by the dwelling-house of Ilenry A. Scott to the mills of the Eddy Brothers; said mills being owned and occupied by said Eddy Brothers for the manufacture of chair stock. That said accident occurred upon that portion of said highway which lies between said Eddy Brothers’ mills and the junction of the road which leads from said highway to Leroy Snow’s and Lot Barber’s dwelling-houses, and about midway of said distance, and in the steepest portion of said highway between said junction and said mills. Said highway where said accident occurred was narrow, icy, and had no railing or protection to guard against the embankment towards the stream near said highway, and was slanting towards said bank or stream.”</p> <p>The court found, as to the notice, that the distance from Eddy Brothers’ mills, on said road, to the junction of the road which leads from said road to Leroy Snow’s and Lot Barber’s dwelling-houses, is 66 rods. The distance from the junction of said road with the road leading to said Snow’s and Barber’s dwelling-houses to the place where the accident occurred is 16£ rods. The distance from the place where the accident occurred to said Eddy Brothers’ mills, is 50 rods. On said highway, where the accident occurred, there were two hills or pitches, the second of which was about distant from the first one, where the accident occurred, and is so much nearer the Eddy Brothers’ mills, thán the first pitch.</p> <p>The grade of the first pitch, where the accident occurred, is somewhat steeper than that of the second. The next day after the accident, and while the plaintiff’s wagon w.as remaining down the embankment, near to and in sight of the road, where it was precipitated, two of the then selectmen of the town and others, and several days before the notice was delivered, went over this road, and saw the wagon there, and thus knew the point where the accident occurred.</p> <p>The St. of 1880 took effect May 1st, 1881. This statute declares that, the “ repeal shall not affect any pending suit.” It follows that what is not named in the saving clause', must be excluded. Expressio unius est exclusio alterius. Story, J., in 3 Story, C. O. 87. The Revised Laws took effect August 1st, 1881. The plaintiff’s dead right could not be revised by section 28. His right was not vested but inchoate. Sumner v. Cummings, 23 Yt.,427; Platt v. Jones, 25 Yt. 303; Iline v. Pomeroy, 39 Yt., 211. Inchoate rights, generally, derived under a statute, are lost by its repeal, unless expressly excepted. 1 Hill, 324; 3 Burr. 1456; 31 Wis. 257; Springfield v. Worcester, 2 Ousli. 52; 13 IIow. 429; 15 N.'Y. 152; People v. Livingston, 6 Wend. 526. As to the notice, see White v. Stowe, 54 Yt. 510; Butts v. Stowe 53 Yt. 600; Underhill v. Washington, 46 Yt. 767.</p> <p>The notice was sufficient. Bliss v Whitingham, 54 Yt. 172; Rogers v. Swanton, lb. Yt. 585; Pratt v. Sherburne, 53 Yt. 370 ; Reynolds v. Burlington, 52 Yt. 300. The court ruled correctly as to the motion to dismiss. The legislature by repealing an act cannot cut off an accrued right. R. L. s. 28 ; Starksboro v. llinesburg, 13 Yt. 215; ILine v. Pomeroy, 39 Yt. 211; 1 Bl. Com. 46 ; 1 Kent Com. 455 ; Bao. Ab. tit. St. E. 9, 228 ; Whitman v. JIapgood, 10 Mass. 437; 19 Pick. 578 ; Einq v. Tirrell, 2,Gvaj, 331. See 48 Yt. 302; 39 Vt. 211; 33 Yt. 283; 25 Yt. 303.</p>

<p> Highway. Evidence. </p> <p>1. In an action for injury on a highway, the exceptions stated that the plaintiff. in his “ opening testimony had attempted to prove that the horse at the time of the accident, and he fare and since, was tractable, gentle,” &e. Held, that the defendant could rebut this with evidence, covering the same time as the plaintiff’s, showing the horse was in the habit of running away ; and, although the defendant’s evidence related to the character of the horse one year after the accident, it does not appear that it was more remote than the plaintiff’s; and that the words, “attempted to prove,” mean, introduced testimony tending to prove.</p> <p>2. If it was error, — which is not decided, — for-the court to compel the production of a deposition of one of the plaintiff’s witnesses, on cross-examination, as the deposition was not used to contradict the deponent, it was harmless, and, therefore, not vitiating.</p>

<p>Petition for the correction of a judgment, or to be allowed a new trial, brought at the May Term, 1883, of the Supreme Court, Washington County.</p>

[In Chancery.] Bill in chancery to redeem. Heard on bill, answer, traverse, master’s report and exceptions thereto, Juno Term, 1881, Caledonia county, Boss, Chancellor. Bill pro forma dismissed.

<p>[in chancery.]</p> <p>Bill in Chancery. Heard on bill, answer, and proofs, Orange County, December Term, Powers, Chancellor. Bill dismissed.</p>

Quo Warranto. The petition was signed August 19, 1882. It alleged that the annual meeting was held on May 29,1882, and that the defendant from that time, without legal right, exercised the office of president of the Peru Turnpike Company.