Volume 57 — Vermont Reports

Replevin for two District of Columbia bonds of $1,000 each. Plea, general issue. Heard on an agreed statement of facts by the court at the September Term, 1884, Veazey, J., presiding. Judgment for the plaintiff. On September 13, 1869, John H. Langdon of Castleton was appointed by the Probate Court guardian of his brother, William C. Langdon, an insane person. The ward’s estate consisted partly of United States bonds.

Petition for foreclosure of two mortgages. Heard on pleadings and agreed statement, September Term, 1884. Veazey, Chancellor, decreed a foreclosure of both mortgages. Held: that a shop with a water privilege, situated on the other side of the highway from the house, was a part of the homestead. The homestead has been held to attach to the interest of a tenant in common. McOlary v. Bixby, supra; Danforth Beatty, 43 Vt. 138. See Whiteman v. Field, 53 Yt. 554.

<p> Amendment. </p> <p>A declaration, containing only the common indebitatus counts, counting upon a sale to the defendant, cannot he amended hy adding counts upon a contract of guaranty.</p>

Replevin for a quantity of sheet music. Plea, not guilty. Trial by jury, September Term, Veazey, J., presiding. Verdict ordered for the defendant. The exception stated: “ The plaintiffs, as trustees, had the authority given them by the constitution and by-laws; and the defendant was the leader and musical director of the band, with the rights and authority given him under said constitution and by-laws.” Replevin will lie where trespass or trover will.

<p> Attachment. Change of Possession. Fraud in Law. Agent. Bailee. </p> <p>Tlie plaintiffs sold on credit four chests of tea and one barrel of molasses to B., which were delivered and kept in B.’s grocery store. Soon after, B. sold his grocery business and lease of the store to G., excepting the tea and molasses, which were to remain where they were, B. having control of them. In a short time the plaintiffs repurchased the tea, &c., and entered into an arrangement with G. to keep tlie same for them in said store. Subsequently, G., without the knowledge of the plaintiffs, sold and gave possession to P., and falsely represented to him that B. was the owner. B. as a favor to the plaintiffs packed the goods to be reshipped to them, and, with their agent, had tried to sell the same; bat after the repurchase had never exercised acts of ownership. The goods while in P.’s possession having been attached by B.’s creditor; Held, that there was a sufficient change of possession; that G was the agent of the plaintiffs, and as such held the goods for them; that P., although a bailee, was a stranger to the title, and any erroneous information given to or by him could not affect the rights of the plaintiffs.</p>

<p> Stahite of Limitations. Absence from the State. </p> <p>A temporary absence does not arrest the running of the statute, so long as a residence is retained in this State; thus, the defendant, having a residence here, and leaving his family here, went into New York, and was absent several years for business purposes, without intending to acquire a new residence or to abandon the old one. He was frequently here with his family, and his presence could have been easily ascertained; but his wife was with him in New York a small portion of the time; they kept house there one winter; he paid taxes there, and voted there once; Held, that the running of the statute was not arrested.</p>

<p>Taxation. Vote. Committee of School District. Assessment. Warrant. R. L. ss. 2G93, 3053. Replevin. Collector.</p> <p>3. A school district voted to have two terms of school, and “ to use the public money, and raise the balance on the grand list, for the support of said schools.” After using the public money to defray the expenses of the first term, it was necessary to raise only $41.85; but before the second term commenced the committee assessed a tax amounting to $153.14; and also another tax, after the close of the second term, which was $32.14 in excess of the expenses of that term. livid, that the tax was illegal, in that, while a slight excess over the amount voted would not vitiate the tax, here the excess was unreasonable; and, under the vote, that the public money could be used only towards defraying the expenses of the school.</p> <p>2. It is necessary that a collector of town taxes should have a legal warrant to collect unpaid highway taxes delivered to him by the selectmen under R. L. s. 3053.</p> <p>3. Highway Tax — Warrant. It was'held that an old warrant, made by alterations to serve as such to several successive tax bills, which warrant was dated in 1882, and intended by the selectmen to apply to the tax-bill of that year, was inapplicable to the tax-bill of 18S1; and that the defendant collector could not .justify under it the taking of a tax-payer’s property to pay. a tax of 1881.</p> <p>4. Assessment. In making an assessment a committee has no right to anticipate that tax-payers who are good will not pay their taxes, and assess enough more to cover that contingency.</p>

<p>Statute of Frauds. Parol Contract. Sale of Land. R. L. s. 981.</p> <p>The plaintiff’s house being mortgaged, he entered into a parol contract with the defendant to purchase the mortgage, sell the house, and after satisfying the mortgage debt, costs, &c., to pay the balance to the plaintiff. The defendant purchased as agreed, foreclosed, and sold the house, the plaintiff in reliance on the contract allowing the equity of redemption to expire; Jleld, that the plaintiff in assumpsit could recover the balance; that the contract was not within the Statute of Frauds, in that it was not for the sale of lands or an interest in or concerning them, and could be completely performed within one year; that parol evidence was admissible to prove the contract.</p>

<p>Taxation. Quarry Leased. R. L. s. 348.</p> <p>1. Qtjakky Leased. A slate quarry, leased for the purpose of manufacturing roofing slate, should he set in the list of lessor; and if set in the list of the lessee, a tax assessed thereon is invalid.</p> <p>2. Real Estate. Real estate, within the meaning of the tax law, is land with its fixtures and accessories, — land, measurable and capable of description by metes and bounds.</p>

Case for negligence. Heard on demurrer to the declaration, March Term, 1884, Veazet, J., presiding. Demurrer sustained.

<p>Appeal from the order of the Probate Court denying the petition of the plaintiff, praying for the appointment of commissioners upon the estate of J. C. Powers, deceased. Heard, September Term, 1883, Veazey, J., presiding. Appeal dismissed.</p> <p>It appeared that the original action was general assumpsit, and was entered in court at the March Term, 1879; that the defendant, J. 0. Powers, deceaséd September 8, 1881, and that his administrator appeared in the case at the September Term, 1881; that the cause by the consent of the parties was referred to referees; that the referees heard it, made, and filed their report June 12, 1880, disallowing the plaintiff’s claim; that the cause was recommitted on the plaintiff’s affidavit, at the September Term, 1880; that the second hearing before the referees was February 27, 1882; that they found for the plaintiff to recover $295.71; that the plaintiff objected to any further hearing before the referees on account of the death of the defendant. The plaintiff presented his petition to the Probate Court on the 27th day of February, 1882, praying 'for commissioners, and a citation was issued and served on the administrator the next day. The prayer of the petition was denied. In the County Court the plaintiff claimed that it was the duty of the Probate Court under the statutes to appoint the commissioners on his petition; the defendant claimed that such was not the duty of the court, the question being controverted, unless it appeared that he had a claim in fact to present and be tried by the commissioners; and denied that he had such claim, and insisted that the defendant had the right to show it.</p> <p>cited R. L. ss. 2115, 2143, 2155; Adams v. Adams, adm’r, 22 Yt. 58; Boy den v. Ward’s adm’r, 38 Yt. 633; Bates v. Kimball, 1 Aik. 95.</p> <p>cited R. L. ss. 2143, 2155; Rev. St. 270, s. 17; Com. St. 343, s. 22; Gen. St. 392, s. 21; Judiciary Act of 1797; Hyde v. Leavitt, 2 Tyler, 170; Ashley v. Harrington, 1 Chip. 348; Tyler v. Whitney, 8 Yt. 27.</p>

Foreclosure of mortgage. Heard on the pleadings and a special master’s report, September Term, 1882, Veazey, Chancellor. Bill dismissed.

Bill in Chanceey. Heard on motion of the defendant, March Term, 1884, Veazey, Chancellor. Motion denied. If in the judgment of the chancellor justice requires it, it is within his power to allow an answer to be filed. Gale y. Butler, 35 Yt. 451; Barker v. B. B. Co. 27 Yt. 700; In re Chickering, 50 Vt. 92; Canerdy v. Baker, 55 Vt. 581; 28 Vt. 85. The demurrer only prays judgment whether answer should be made or not.

Assumpsit. Pleas, general issue and two special pleas in bar. Heard on demurrer to the plaintiff’s replication to the special pleas, by tbe court, March Term, 1884, Yeazey, J., presiding. Judgment that the replication was sufficient. Bedell & Warden v. Scruton, 54 Yt. 493, is not decisive of this case; as that case was decided under the Act of 1876, and the law was changed in 1880. R. L. s. 1797. The statute as to staying suits applies to non-resident creditors.

Bill to foreclose a mortgage. Heard on demurrer to the bill, September Term, 1884, Ybazey, Chancellor. Demurrer sustained. The bill alleged, that the mortgage was “prepared upon an ordinary real estate form of deed.” The mortgagor was a tenant at will, and had an interest which he could mortgage. It was a mortgage of realty. Griffin v. Marine Co. of Chicago, 52 111.

Petition for a writ of mandamus. The petition was dated the 29th day of December, 1882.

Indictment charging the respondent with perjury for violating the official oath as lister. Heard on demurrer to the indictment, December Term, 1883, Orange County, Rowell, J., presiding. Demurrer overruled.

Debt on a constable’s bond. Pleas, general issue, special pleas in bar. Heard on demurrer to defendant Hackett’s fourth special plea, May Term, 1882, Windsor County, Rowell, J., presiding. Demurrer sustained. The defendants — the sureties — filed four special pleas, and said Hackett four. The plaintiff joined issue on the first three, and replied specially to the fourth plea of sureties.

Habeas Corpus. The writ was signed by Rowell, J. By consent of counsel the case was continued into the Supreme Court.

<p>Assumpsit upon an award. Heard on demurrer to the declaration, March Term, 1883, Essex County, Ross, J., presiding. Demurrer pro forma, sustained.</p> <p>The declaration set out the submission as follows:</p> <p>“ Know all men by these presents, that we, the St. Johns-bury & Lake Champlain Railroad Company, and Arthur Taylor, hereby enter into bonds in the penal sum of $500 to abide the decision of Samuel Ford and Ezra A. Parks, to appraise the damages on said Taylor, where the survey of the railroad has been made; and if the said Ford and Parks cannot agree, they are to call in another man. The said Taylor binds himself to give a good and sufficient deed as said arbitrators shall award, and the said railroad company to pay the sum awarded.</p> <p>“ The said Eord and Parks are to be called out as soon as convenient, and the said Taylor and railroad company bind themselves in the penal sum of $500 to each other to carry out the award of said arbitrators.”</p> <p>And the award as follows:</p> <p>“ In accordance with the above agreement we, Samuel Eord and Ezra A. Parks, the arbitrators named therein, do hereby award that said Taylor shall execute a good and sufficient deed of a strip of land, four (4) rods wide, through his land for the purpose of a railroad; that is to say, two (2) rods each side of the center line of railroad leading from North Concord to Victory, as now surveyed and located, and that said railroad company shall pay said Taylor $100; and shall build and maintain a good and sufficient cattle-pass for his cattle to pass from one side of the railroad to the other; and shall keep up the fences while said railroad is being built, so that his cattle or other property shall not be injured; and shall not injure or interfere with the spring on his land near said railroad line.”</p> <p>Commissioners could require the performance of certain acts by the railroad in payment of the land damages. R. L. ss. 3359-60. The power conferred upon the arbitrators was as broad as the statute itself. The acts to be done were only a part of the land damages.</p> <p>If by any fair implication the matters reported by arbitrators came within the terms of the submission, or if it is a natural or a necessary incident of the matters submitted it will be presumed the parties intended to have the same acted upon by the arbitrators, the award will be upheld. Brown v. Bellows, 4 Pick. 179; Blair v. Wallace, 21 Cal. 317.</p> <p>Assumpsit will lie. Cald. Arb. 388; Morse Arb. 573, n. 3; Banks v. Adams, 23 Me. 259; Q-erry v. Eppes, 62 Me. 49. The defendant is estopped. The company accepted the deed, entered upon the land, completed its road, and is now running its trains over the land, claiming to own the land taken by the award. Cald. Arb. 307; Morse Arb. 174; 40 Me. 408: 56 How. Pr. 484: 37 Ala. 408:, 5 W. Va. 122; 23 Wend. 3G3; Big. Est. 515. The award will stand if the parties ratify it. 3 Gill (Md.) 31; 19 Pick. 300.</p> <p>All that part of • the award that the railroad company “ shall build and maintain a good and sufficient cattle-pass,” &c., is outside the submission and wholly unauthorized by it, and therefore void. Peed v. Lamoille Valley P. P. Co. Franklin Co. If the award is binding in respect to these matters, damages for failure to furnish passage to the plaintiff’s cattle from one part of his farm to the other, or for the escape of his cattle, or to the spring, cannot be recovered by suit on the award. An action on the case is the plaintiff’s proper remedy. Bridgman v. Eaton, 3 Yt. 1GG; Sharp v. Hancock, 7 Man. & G. 354.</p> <p>In Gerry v. Eppes, G2 Me. 49, the plaintiff furnished the defendant some lumber for building a vessel, and the plaintiff was to have a share of the vessel in payment for the lumber. The parties differed, and submitted the difference to arbitrators, who awarded that defendant should convey to the plaintiff three thirty-second parts of'the vessel. The defendant refused to convey, and the plaintiff brought- assumpsit to recover the value of the share awarded to him, and was allowed to recover the value. The court said that when the thing awarded to he done, was certain and definite, so that a specific performance would be decreed, assumpsit might be maintained. The plaintiff here claims damages for his cattle escaping and for damages to crops by failure to keep up the fences — damages because the building of the road has interfered with his spring — damages for loss of use of his farm by reason of insufficiency of cattle-pass. Are any of these things certain and definite, so that specific performance could be decreed of them? If the railroad company were bound by the award in respect to these matters, an action would lie for each and every violation of them; but the obligation was continuous. Can successive actions and recoveries be had by suits on an award? If an award be made that a party shall build a fence, and he fails to do it, perhaps an action would lie on the award to recover the expense of building the fence. Here the defendant was not to build any fence; he was not to leave the plaintiff’s fence down, and all sorts of consequential damages are claimed.</p>

Bill in Chancery. Heard on bill, answer, and testimony, September Term, 1883, Rutland County, Yeazey, Chancellor. Bill pro forma dismissed without hearing. It appeared that John and Thomas Caden were partners; that Thomas had deceased, and that John Caden and Car-bury Carroll were the administrators of his estate; that John Caden was insolvent, and that H. 0. Edson was assignee of the estate of said John, and of the firm of J. & T. Caden.

Assumpsit. Heard on a referee’s report, September Term, 1882, Chittenden County, Taft, J., presiding. Judgment pro forma for the plaintiff. The referee found that the intestate died in 1871, leaving considerable real estate in St. Albans, consisting of a farm of 125 acres, and tenements, and other buildings in the village.

Trustee Process. Heard on a commissioner’s report by the court, March Term, 1883, Washington County, Redeield, J., presiding. Judgment that the fund belonged to the claimant; and that the trustee be discharged.

Bill in Chancery. Heard on demurrer to the bill, September Term, 1883, Orleans County, Ross, Chancellor. The chancellor stated, that his opinion was, that the bill could not be sustained; but that the constitutionality of the acts of the legislature might be passed upon by the Supreme Court. — and that the injunction might remain in force during the pendency of proceedings in court, he ruled pro forma sustaining the bill.

Case for negligence. Heard on a referee’s report, December Term, 1883, Caledonia County, Ross, J., presiding. Judgment for tbe plaintiff against Abner H. Powers; but judgment that Jonathan Powers recover his costs. The referee found in part: “This rope baiter was large and very strong, and had been in ,use by tbe defendants.

General Assumpsit. Pleas, general issue and Statute of Limitations. Replication, bankruptcy, absence from the State, and that the cause of action accrued in another State. Heard by the court, on demurrer to the replication, September Term, 1883, Washington County, Ross, J., presiding. Demurrer sustained.

Indictment for obstructing a highway in the town of Pownal. Plea, not guilty. Trial by jury, June Term, 1883, Bennington County, Powers, J., presiding. Verdict, guilty; and the respondent was sentenced by the court to pay a fine of $100 and costs. The indictment was found at the June Term, J879.

Action to recover taxes. Heard on demurrer to the declaration, September Term, 1883, Orleans County, Redeield, J., presiding. Demurrer overruled. The writ was dated March 4, 1882.

Assumpsit. Heard on demurrer to the declaration, September Term, 1883, Franklin County, Royce, Oh. J., presiding. Demurrer overruled. The declaration alleged in substance: That the plaintiff was a relative and heir-at-law of Hiram Bellows, deceased; tliat by the terms of said.

Petition for the discontinuance of a highway. Heard on commissioner’s report, December Term, Caledonia County, Ross, J., presiding. Report accepted, and petition dismissed. It appeared that in March, 1877, William Carrick and three others petitioned the selectmen to lay out the way in question, and that in a short time it was laid out.

Replevin for a quantity of clothing. Trial by jury, September Term, Franklin County, 1883, Royce, Ch. J., presiding. Judgment for the plaintiff. See this case, reported in 52 Vt. 353, and 55 Vt. 224, where the facts, with those in the opinion, are chiefly stated. Doran’s bankruptcy occurred in December, 1877, and he was adjudged a bankrupt soon after. The goods in question were attached in October, 1878.

Trespass and Case. Heard on motion to dismiss, May Term; 1880, Windsor County, Barrett, J., presiding. Motion sustained. The case is an appeal from a justice court. The substance of the motion was, that the justice had not jurisdiction, because the title to land was concerned.

General Assumpsit. Plea, the general issue, and notice of special matter. Trial by jury, April Term, 1880, Franklin County, Royce, J., presiding. Verdict for the plaintiffs.

Bill in Chancery. Heard on bill, answer, and testimony, Orange County, December Term, 1881, Powers, Chancellor. Bill dismissed. The orator seeks to have the real estate decreed to him by reason of the breaches of the condition in the Bliss deed. He paid. $3,000 for the good will of the Bliss hotel. There was a material breach of the condition. If a breach, what are the consequences ? a forfeiture, or damages ? — clearly a forfeiture of the whole Bliss hotel property.

Bill in Chancery. Heard, on demurrer, February Term, 1883, Orleans County. Redfield, Chancellor, overruled the demurrer. The bill was brought by the orator, as guardian of one Emily Clark, to have her deed of certain lands set aside. It was alleged that said Emily was insane at the time of the conveyance.

Scire Facias against bail on mesne process. Plea, nul tiel record, with notice. Trial by jury September Term, 1883, Essex County, Ross, J.-, presiding. Judgment for the plaintiff. The original action was brought by the present plaintiff before a justice of the peace against one Woodward. It was trover for the conversion of sheep. (See Darling v. Woodward, 54 Yt. 101.) The present proceeding is against Woodward’s bail.

Bill to redeem. Heard on bill, answers, and master’s report, March Term, 1884, Washington Ctounty. Powers, Chancellor, decreed that the bill be dismissed. The oratrix, Eleanor C. Wells, was the wife of the defendant, Hénry C. Wells, and Susan L. Wells was his mother. It appeared from the report, that the defendant, C. W. Tucker, in 1874, conveyed a farm, subject to two mortgages, to the defendant, H. C. Wells.

Debt on a decree of the Probate Court. Heard on special demurrer to the declaration, September Term, 1883, Orleans County, Rejxbteld, J., presiding. Demurrer sustained.

<p>Conditional Sale. Lease. Insolvency. Assignee. Contract, Where made.</p> <p>1. Property, sold conditionally and delivered, without a legal record of the lien, passes to the assignee of the vendee under the insolvent law.</p> <p>2. A contract, by which a vendee of billiard tables agrees to pay in monthly installments in one year the entire value of the tables, and if he so paid the property was to be his, and if not, the vendor’s, is a conditional sale, and not a lease.</p> <p>3. When one here orders goods from a party in New York on certain terms as to payment, &c., but they are shipped, consigned to the vendor, and accepted on different terms; Held, that the contract was made in this State.</p>

<p>Bill in Chancery. . Heard on a master’s report, June Term, 1883, Caledonia County, Ross, Chancellor. Bill dismissed.</p>

<p>Bill in Chancery. Heard on bill, answer, traverse, master's report, and exceptions thereto, September Term, 1883, Franklin County. Royce, Chancellor, decreed that the defendants be perpetually enjoined from operating their railroads and running trains over the lands owned by the orators mentioned in the bill, unless they pay to the clerk of the court for the benefit of the orators the sum of $1,463.05, with interest from August 10, 1883, and the sum of $200 with interest from the date of the decree, and costs, on or before June 1, 1884.</p> <p>The bill was brought at the April Term, 1882, to recover damages for lands taken by the defendant, the L. V. R. R. Co., for railroad purposes, and prayed that the orators might have a special lien on the land, &c., and that tlie defendants be enjoined from running their cars over said land unless they paid said damages. The orators were Orange Adams, J.. H. Cotterell and Fannie F. Cotterell, wife of said J. H., Mahala Wells, and H. M. Wells. The land taken by the railroad was meadow land, and part of a farm situated in Bakersfield, and owned by James H. Malavin, as a mortgagor. Malavin executed, March 10, 1866, a mortgage on said farm to Gardner A. Paige to secure certain promissory notes. On or about January 1, 1870, said Paige sold two of said notes to said Fannie F. Cotterell, and at the same time sold three of said notes to A. C. Wells, and also transferred a proportional part of the mortgage security to them. The other nine of said notes were transferred, October 31, 1871, by said Paige to said Adams. One note fell due each year. The owners of the mortgages foreclosed, and the decree became absolute March 1, 1879. On January 1, 1880, the executor of A. C. Wells’ estate deeded the interest of that estate to the said H. M. Wells and Mahala Wells.</p> <p>The masters found:</p> <p>“ That the said Lamoille Valley R. R was fully completed and put in operation on the 1st day of August, A. D. 1877: and that said Lamoille Valley R. R. Co. continued to operate said road over and upon said Malavin farm until the i st day of July, A. D. 1880:</p> <p>“That on the 1st day of May, A. D. 1871, the said Lamoille Valley R. R. Co., jointly with the Montpelier & St. Johnsbury R. R. Co., and the Essex County R. R. Co., executed a mortgage of the railroads of the said three companies to Luke P. Poland and A. T. Lowe, in trust to secure the payment of bonds jointly issued by said companies to the amount of 82,300,000; and afterwards, on the 18th day of July, A. D. 1876, the said three companies jointly executed another moi'tgage of their said railroads to Luke P. Poland in trust, to secure the payment of bonds jointly issued by the said companies to the amount of $500,000; and the said bonds secured by said mortgages were by the said companies all negotiated and sold, and all went into the hands of bona fide purchasers for value; and the said companies having made default in the payment of interest on said bonds, foreclosure suits were duly commenced thereon by said trustees at the December Term of the Caledonia County Court of Chancery, A. D. 1877, and such proceedings were had therein that final decree of foreclosure was obtained in favor of .the trustees against the said company at the December Term of said court, A. D. 1879; and the said companies having failed to make payment as ordered by said court, the said decree became absolute in the said trustees for and in trust for the holders of said bonds.</p> <p>“ And the masters find, that after the decree of foreclosure had become absolute against the Lamoille Valley R. R. Co., the Montpelier & St. Johnsbury R. R. Co., and the Essex County R. R. Co., the holders of the bonds secured by said mortgages, and for whom the said trustees held the title of said roads, under said decree in trust, proceeded under the statute of this State to form themselves into a corporation under the corporate name of the St. Johnsbury & Lake Champlain R. R. Co.:</p> <p>“That the St. Johnsbury & Lake Champlain R. R. Co. were duly organized under the laws of this'State, and took possession and went into the operation of the railroad of the Lamoille Valley R. R. Co. on the 1st day of July, 1880, and have ever since continued to operate said road.” * * *</p> <p>The solicitor for the orators made the following request, viz.:</p> <p>“Find and report the actual damage to said Malavin farm by reason of the railroad company not maintaining any underground cattle pass, upon the basis that the railroad company are not to maintain any such pass.”</p> <p>“ Upon this request the masters report, that there was not sufficient evidence introduced before them to warrant any finding; but if the court is of the opinion that the masters are warranted by an inspection of the said Malavin farm and the location of the railroad thereon to ascertain such damages, then we fix such damages at the sum of §200.</p> <p>“ And the masters further report, that in fixing the damages to said Malavin farm at §900, it was upon the basis that no underground cattle pass would ever be maintained on said farm.” * * *</p> <p>“ The masters find and report, at the special request of the defendant, the St. Johnsbury & Lake Champlain R. R. Co., that James H. Malavin, on the 17th day of February, A. D. 1870, made, executed, and delivered his bond to the Lamoille Valley R. R. Co., in the ordinary form of a penal bond in the sum of §500, to which was attached a condition in the words and figures following, to wit: ‘That if the above bounden James H. Malavin,’ his heirs, executors, administrators, or assigns shall, in case the railroad company survey, locate, and build its raikoad upon or across his land, execute and deliver to said railroad company a good and sufficient deed of so much of his land as may be necessary for the location, construction, and operation of said road, and receive therefor §50 per acre for all the land so taken on my meadow, and give all the land they may want in my pasture provided the said road is built on the west side of the creek, and in case the said company build the said road on their present located survey, it is understood I am to have §75 per acre for all land so taken in my meadow, and for what they want in my pasture I will make no charge. It is understood that said company shall fence said road on both sides, establish all passes necessary either over or under said road for the convenience of saicl farm, both for the purpose of going over said track and under said track, that cattle may go to and from water in the creek; and until the execution of said deed, allow and permit said company and their agents and employes to enter upon his said land for a.ll purposes necessary for the location and construction of said road, then this obligation shall be void, otherwise shall remain in forced</p> <p>“ The solicitor for the defendant, the. St. Johnsbury & Lake Champlain R. R. Co., requested the masters to further find, that said bond was duly delivered to the Lamoille Yalley R. R. Co., and that said company proceeded in the location of their said railroad, relying upon the condition set forth in said bond.</p> <p>“ The masters are not able to find from the evidence before them, that said company proceeded to locate their said road, relying on said bond; and do find that said company did not proceed with the said construction of said road relying on said bond: * * *</p> <p>“That on the 10th day of January, A. D. 1876, and before any grading had been clone on that portion of said railroad running through and over said Malavin farm, the said Malavin marie an agreement with the Lamoille Yalley R. R. Co., fixing the amount of damages to said farm at $1,100, and that said railroad company should be released from all obligation to build any bridges across the said creek: ”</p> <p>“ That upon several occasions that said Malavin did object to said construction, and forbade said railroad company and their agents and employes from entering upon said farm for the purpose of constructing said railroad until the land damages should be paid. We do find and report, that while said Lamoille Yalley R. R. Co. were at work in the construction of said railroad through and over said farm, said Malavin did threaten to interrupt and prevent the construction of said road, and that said Lamoille Yalley R. R. Co. did procure an injunction, returnable before the Court of Chancery to be holden at St. Johnsbury, in the County of Caledonia, on the first Tuesday of December, A. D. 1877, to restrain him from so doing; which injunction was duly served on the said Malavin on the 20th day of June, A. D. 1877.</p> <p>“ We further find and report, that the construction of said railroad of the said Lamoille Yalley. R. R. Co. through the town of Bakersfield, and over and through the said Malavin farm, .was open and notorious; and that no evidence was offered before us tending to show that the mortgagees, then interested in said Malavin farm, or any of them, ever objected to such location and construction.</p> <p>“ The masters further find from the answer alone, there being no evidence introduced either to support or deny the allegation, and at the special instance and request of the defendants’ solicitor report, that as the said Lamoille Yalley R. R. Co. was proceeding to lay the track upon said graded road, the said Malavin did threaten to interrupt and prevent the laying of the same, unless his damages were paid, and said Lamoille Yalley R. R. Co. procured an injunction to restrain him from so doing, as above stated.”</p> <p>The following question was asked a witness by the defendants’ solicitor: “ What would be the worth of that wood standing (referring to the wood on the Malavin farm) if the railroad was not there?” Mr. R. H. Start, solicitor for the orators, said: “ The defendants offer to prove by this witness that the value of the standing timber on this Malavin farm has been increased from two to four thousand dollars on account of the market created by the railroad.” The question was excluded.</p> <p>The mortgage debt on the Malavin farm at the date of the decree of foreclosure — September 20, 1878 — was $8,031.80, and the farm rented for $300 per year. The bond executed by said Malavin was subsequently superseded by the agreement fixing the land damages at $1,100. The masters found that, if they were not bound by the agreement; the damages were $900, with interest from August 1, 1877; that if the $1,100 agreement, made January 10, 1870, was the correct measure of damages, the orators were entitled to recover $1,000.50; but if the interest was to be computed only from the time the Lamoille Yalley R. R. Co. began to operate the railroad — August 1, 1877' — then they should recover $1,403.65; that if interest should be computed on the $1,100 only from July 1, 1880, then they were entitled to recover, on August 10, 1883, $1,305.15; or if interest was computed on the $900 from July 1, 1880, then they should recover $1,067.85. No ■part of the land damages had been paid by the defendants.</p> <p>The ground of recovery set forth in the orators’ bill is, that the land taken was worth $2,000; that such taking lessened the value of the orators’ mortgage security to the amount of $2,000, and that thereby the orators lost on their mortgage debt that sum. The orators cannot recover unless said allegations are sustained by proof, and the findings of the masters. Thomas v. Warren, 15 Yt. 110; Barrett v. Sargent, 18 Yt. 365. The orators took the farm as purchasers at the date of foreclosure, and their debt was thereby paid to the extent of the value of the farm. Lovell v. Leland, 3 Yt. 581; Baris v. Hulett, 26 Yt. 368; Calkins v. Clement, 54 Yt. 638. It is well settled that a subsequent purchaser has no right to damages that accrued before the purchase. Red. R. R. (3d ed.) p. 350. Both the orators and the St. Johnsbury & Lake Champlain R. R. Co. were mortgagees at the time of the agreement between the respective mortgagors as to the damages; neither of them were parties to the agreement, and are not bound by it. Berkins v. Betts, 11 Mass. 125, 130; Murphey v. Welch, 128 Mass. 489.</p> <p>The orators, if entitled to recover at all, cannot recover interest on the damages before March 1, 1879, when their decree became absolute. 1 Jones Mort. s. 670; Boston Bank v. Reed, 8 Pick. 459; Mayo v. Fletcher, 14 Pick. 525.</p> <p>The mortgagor while in possession is entitled to recover for his own benefit all damage done the mortgaged premises while he is thus in possession. 1 Jones Mort. s. 671; Yaugh v. Witherell, 116 Mass. 138; Baine v. Woods, 108 Mass. 160. The orators are not entitled to interest against the St. Johnsbury & Lake Champlain R. R. Co. prior to July 1, 1880. 7 Pick. 140, and cases supra. The defendants should have been allowed to prove that the woodland was increased in value. Bierce R. R. 223; Donavany. Springfield, 125 Mass. 371; Shattuck v. Stoneham Branch JR. JR. G Allen, 115; Hayes v. JR. JR. Co. 54 111. 373; Walker v. Oxford Manf. Co. 10 Met. 203.</p> <p>So far as the right of the land-owner to a decree is concerned, the facts bring this case expressly within the recent cases decided by this court. Kendall v. M. & C. JR. R. R. Co. 55 Yt. 438; Kittell v. Missisquoi R. R. Co. 5G Yt. 9G; Hart v. Same, lb.</p> <p>This case differs from those above cited, only in being brought by persons who held the interest of the mortgagee at the time of the entry and construction of the railway, and who have since acquired the title to the farm by foreclosure against the mortgagor. The mortgagee is entitled to relief, even though the railroad company has settled with and paid the mortgagor in full. Hagar v. Brainercl, 44 Yt. 294; Wade v. Henuessy, 55 Yt. 207; R. L. s. 33G7.</p> <p>And as between the mortgagor and the mortgagee, the mortgagee is entitled to the whole compensation awarded. Lamhton, ex parte, 17 Moak Eng. Rep. 778; 19 Wend. G59. The agreement as to the amount of damages is the true basis of recovery. R. L. s. 3359; Hart v. Missisquoi R. R. R. Co. supra.</p> <p>Interest upon the damages should commence to run from the date of the entry upon the land by the Lamoille Yalley R. R. Co. The claim for damages is a claim for an equivalent for the land taken, and becomes operative by reason of the taking of the land, and is then due and payable. It is this original claim that we seek to enforce against tire railroad in the hands of the St. Jolmsbury & Lake Champlain R. R. Co. 4</p> <p>Evidence as to the enhanced value of the woodland was properly excluded. Pierce R. R. pp. 222-4; Childs v. New Haven & Northampton Co. 133 Mass. 253.</p> <p>No presumption of payment arises from the foreclosure, and the mortgagees do not stand as subsequent purchasers. After the law day had past, the'mortgagees were owners of the premises, and as such were entitled to the damages at the date of the entry. Hagar v. Brainerd, supra; 2 Wash. R. P. 517; Moore v. McGuire, 4 Yt. 327; 5 Gray, 470.</p>

<p>Case to recover for injuries. Trial by jury, June Term, 1881, Bennington County, Taft, J., presiding. Verdict for the plaintiff.</p> <p>The testimony of the plaintiff tended to show that the highway leading from Pownal to Williamstown, Mass., runs parallel with the railroad operated by defendant; that at a place in Pownal, said highway runs for a distance of about forty rods alongside of the railroad, and that on the opposite side of the said highway at this place the defendant owns a gravel bed or bank; that in the fall of 1877, the defendant had a steam shovel at work in said gravel bed; that on the morning of the day of A. D. 1877, he had occasion to pass over this highway, in going from his home in Pownal to North Adams, Mass.; that as he approached this strip of road, knowing the shovel to be in the pit, and fearing it might scare his horse, he got out of his wagon and let his brother drive the horse; that he travelled behind his wagon, and the team passed by the shovel, which was situated near the highway, and being worked at the time; that as he was passing over this strip of road, and both before and after he passed the shovel, his horse was somewhat frightened, jumped forward some, and acted somewhat afraid; that after he had got some distance beyond the nearest point in the highway to the steam shovel, and at a time when the shovel was not in actual operation, but while the horse was somewhat restive and still showing signs of fear, plaintiff's brother stopped the wagon for plaintiff to get in, and plaintiff did so; that just after he had got into the wagon and while he was taking his •seat, the operation of the shovel recommenced and the noise frightened the horse, which backed a little, and then jumped forward so quickly that it threw him out over the back of the seat and hurt him; and this was the injury complained of.</p> <p>The steam shovel at the time of the accident was located on lands of the defendant, which it' used for a gravel bed, from which to obtain gravel to ballast its road bed, and was outside the limits of the highway; and the defendant’s testimony tended to show that the shovel was eight rods from the nearest point of the highway and twenty-nine rods from the place of accident.</p> <p>The testimony of plaintiff tended to show that at the time he was passing by, the shovel was at work, and by the rattling of chains, blowing off steam, and dumping gravel into the cars, made such noises as would ordinarily frighten horses, and did in fact frighten his at the time he received the injury; but the plaintiff did not claim that this shovel was being operated in a different manner or with more noise than other steam shovels usually are, or that this could have been operated with less noise.</p> <p>The defendant’s testimony tended to show that at the time the plaintiff was passing by, the steam shovel was not in operation and was making little or no noise; that the plaintiff’s horse passed by the shovel quietly and was not scai’ed thereby; and that at the time when his horse stax’ted up axid thrqw the plaintiff out as he testified, the shovel did not frighten the horse at all, and that at this time the plaintiff and his team were twexxty-nine rods away from the shovel:</p> <p>That ixi 1877, steam shovels were in general use in the couxitry by railroads, and were operated substantially ixi the same manner and used for the same purposes as this one was:</p> <p>That in August, 187G, and after the defendant had l'uxi a side track from its main line across the highway into the gravel pit, axid after it had taken considerable gravel therefrom for use upon its road bed, and was still so taking it in cars loaded by hand, it received a proposition in writing from oxxe Edmund Rice to load the cars, which proposition was as follows:</p> <p>“Proposal for loading gravel at the Powxial gravel baxxk:</p> <p>“We will lay the gravel ixxto cars axxd deliver them, made up ixito trains ready for the railroad company’s locomotive to take away from gravel bank. We will furnish twenty first-class dump cars, and if from axxy delay of ours a sufficient quaxitity of gravel is not loaded to keep the railroad company’s laborers ixx work on the dump, their lost time shall be chax'geable to our expense.</p> <p>“The railroad company to furnish ten flat car’s axid twenty dump cars. Also to fuimish all necessary track material for gravel-pit tracks. The railroad company to furnish us fuel for our locoxnotive engines while at work ixi the pit. We to be paid seven (7) cents per cubic yard as per measurements of the railroad company’s engineers.</p> <p>“Payments to be made on the work of one month on or about the 10th of the month following.</p> <p>“Dated Troy, August 19, 187G.” (Signed.)</p> <p>The defendant further showed, that upon receiving the said proposal, on or about its date, it accepted the proposition of said Rice, and took its men away from the gravel pit, and that thereupon Rice brought into the pit his locomotive engine for hauling his cars and making up his trains, and also brought his steam shovel and set it up, and his cars and workmen; built such tracks as he desired, and soon commenced to fill the cars and make up his trains as agreed by his contract; that he so continued to load the cars, using the steam shovel, and making up and delivering the trains until about December, 1876, when the work stopped for the winter; that in the spring of 1877, and before work again commenced, the defendant made an agreement with one O. D. Munson, who was really one of the parties in interest in 1876, by which said Munson was to go on and work under the contract of the previous year made with Rice, — load the cars and make up and deliver the trains upon the same terms and conditions as the previous year, and the defendant was to do and perform the same things on its part; that thereupon Munson proceeded to load the cars and make up and deliver the trains upon the side track, to defendant, who took them thus made up and drew them to its dumping ground, and returned them empty to the side track in the gravel pit. Munson used the same locomotive for making up the trains, and the same steam shovel for loading the cars that had been used the year before; the same having remained in the gravel bed during the winter. Munson so continued to work the gravel bed during the summer of 1877, until about. November 1, 1877, and was so working it at the time plaintiff received his injury.</p> <p>And the defendant’s testimony further tended to show, that during all this time that Munson worked the pit, as well as when Rice worked it, it neither had nor claimed to exercise any control over them, or the way and manner in which they loaded their cars, made up their trains, or run and operated their engine or steam shovel, and claimed no right so to do, but that both Rice and Munson operated the bed and controlled their workmen, loaded the cars, made up the trains and operated the locomotive and steam shovel in such a manner and in such parts of the bed as they saw fit.</p> <p>The work of loading the cars could be performed either by hand labor or with the steam shovel.</p> <p>The evidence tended to show that the defendant retained control as to-whether or not the said Rice and Munson should operate said steam shovel in said gravel pit; and also that it was well understood when said proposition was made and accepted that the contractor was to use a steam shovel in doing the work, and to place it in defendant’s gravel pit, the change from the hand labor method being desired by the defendant, in order that the work might be more rapidly prosecuted; and also that when the new contract was made with Munson, in the spring of 1877, it was understood and expected by both parties that the work that year was to be done with said steam shovel then standing in said gravel pit.</p> <p>There was also testimony on the part of the plaintiff tending to show that soon after said steam shovel was first placed in said gravel pit, the selectmen of Pownal objected to its use as unsafe for highway travellers, and had an interview with defendant’s president about it, and demanded that the shovel should be taken out, or a bond given to secure payment of damages, if any, or another passage way for teams provided; and that said president in part satisfied said selectmen by agreeing to keep a man on duty at that point for the purpose of warning travellers, and leading teams past the locality while the shovel was in use; and that a man was so stationed and kept at said point in the highway during a part or all of the time said shovel was operated there in 1876.</p> <p>The court charged the jury in part:</p> <p>“If you find that this shovel, while it was either lying still or in operation, was so near the highway that by its appearance or its noise, or the noise of the engine used with it, would have such a tendency that it would naturally frighten a horse of ordinarily gentle habits when passing by; and you also find that the horse in this case was at the time this accident happened frightened by means of it, or the noise made by it or the engine used 'with it, because if the fright of the horse was not occasioned by this steam shovel or the use of it there, the plaintiff would have no right to recover; and the injuries, which the plaintiff by his testimony tends to show he sustained, were the direct result of the accident occasioned by such fright of the horse in the manner I have stated for this machine or the use of it,'/ then your verdict should he for the plaintiff.” * * * *</p> <p>“And if you also find that this contract was made between Munson and the defendant, with the agreement or understanding between them, that a steam shovel should be used in doing this work; that this gravel should be loaded with a steam shovel, then the court tell you that the deL fendant would be liable in the same manner and to the same extent, that Munson, who did the work and who put the shovel there and used it, would be liable; that the liability of the defendant in that respect would be the same as the liability of the contractor who did put the shovel there, and did this work, if you find that there is any liability that attaches to them under the rules that I shall give you.</p> <p>“ But if you find that there was no agreement, no understanding between the defendant and Munson as to how the gravel should be loaded, or what it should be loaded with, or whether a steam shovel should be used in the performance of the contract; and that the defendants actually had no control over or management of the steam shovel or the work that was done there, and gave no directions as to the use of the shovel, or the manner in which the work was to be done, either to Munson or to any of his servants or workmen employed by him, then the defendants would not be liable and your verdict should be for the defendant.” * * * *</p> <p>“But the question as to whether the shovel is a nuisance is one of fact for you to determine; and that is an important question for you in this case; that is, whether the steam shovel, situated as it was, near the road, and used as it was by the men in loading the cars, was of such a. character, either in its appearance or the noise made by it in being-moved about, or in being worked, making noise with its wheels and chains, or the noise of the engine that was used in operating it, that it had a natural tendency to frighten an ordinarily gentle horse. This is one of the main questions to be presented to you in this case.”</p> <p>The doctrine of responded superior has no application to the facts in the case. It does not apply unless the relation of master and servant exists. That rule is founded upon the principle that the superior has a right to exercise control over his subordinate; and having that right, he is presumed to exercise it, and consequently directs or at least sanctions what the subordinate does.</p> <p>In the case at bar the defendant had no control over the management of the machine; the workmen who operated it were the servants of Munson, not of the railroad. The defendant could not direct or control them; could not order when or where they should or should not work; when they should or should not stop the shovel. Munson was the one, and the only one, who controlled this, and he had the exclusive control and direction of it; the workmen were his workmen.</p> <p>The relation of master and servant existed between them and him, and him alone. They were the subordinate; he the superior. To him they looked for direction in their work, not to the company.</p> <p>The charge of the court was clearly error. Paivlet v. B. & W. B. B. Go. 28 Yt. 298; Wood Mas. & S. ss. 313, 608, 614; Cuff v. N. & N. Y. B. B. 30 N. J. 22; Quarman v. Burnett, 6 M. & W. 499; Beedie v. L. & N. W. B. B. Co. 4 Exch. 243; Ovei ton v. Freeman, 11 C. B. 867; Peachy v. Bowlcmd, 13 C. B. 182; Steele v. S. F. B. B. 16 C. B. 550; Murphey v. Car alii, 3 H. & C. 462; Murray v. Currie, L. R. 6 O. P. 24; Felton v. Deal, 22 Yt. 171- Callahanv. B. B. Co. 23 Iowa, 562; Cuff v. B. B. Co. 35 N. J. 17; Blake v. Ferris, 5 N. Y. 48; Stores v. Utica, 17 N. Y. 104; McCafferty v. B. B. Co. 61 N. Y. 178; King v. B. B. Co. 66 N. Y. 182; Pierce R. R. 286; Red. R. R. 376; Cunningham v. B. B. Co. 32 Am. Rep. 636; Wood Nuis. 79, 310; 1 Ad. Torts, 3.</p> <p>One sustaining special damage from a public nuisance may maintain an action against the person erecting or continuing the nuisance. Abbott v. Mills, 3 Yt. 521; Wood Nuis. 621, 627, 653, 671. The steam shovel was a public nuisance, situated and operated as it was. It was a question for the jury, and was properly submitted. WoodNuis. ss. 1, 4, 16, 75, 142, 149, 277, 292, 624, 663, and p. 582; House v. Metcalf, 27 Conn. 631; Knight v. Goodyear, 38 Conn. 438; Morse v. Richmond, 41 Vt. 435; Jones v. R. R. Co. 107 Mass. 261; Colev. Fisher, 11 Mass. 137; R. R. Co. v. Barnet, 59 Penn. St. 259. The defendant cannot evade liability for the nuisance by showing that it hired another to commit it. Pierce R. R. 288. The principal is liable if the nuisance is incidental to the contract. Whar. Neg. s. 186. If the contractor does the thing which he is employed to do, the employer is as responsible for the thing as if he had done it himself. Water Co. v. Ware, 16 Wall. 566; Robbins v. Chicago, 4 Wall. 678; Hole v. R. R. Co. 6 Hurl. & Nor. 488; Ellis v. Sheffield Gas Co. 2 El. & Bl. 767; Picard v. Smith, 10 C. B. N. S. 470.</p> <p>The principal is liable if it retained the power of controlling the method in which the work was being done. “ The evidence tended to show that the defendant retained control as to whether or not said Rice & Munson should operate said shovel in said gravel pit.” This question was left to the jury by the charge. It having been answered affirmatively by the verdict, it is clear that the defendant is liable as principal in respect to the maintaining of the nuisance.</p> <p>It must always be kept in mind that the owner of property who negligently permits to remain on it a nuisance which he has the power of removing, is liable to third parties for the damage thereby produced, on the principle, Sic utere tuo ut alienum non Icedas. Whar. Neg. ss. 182, 188, 786; Clark v. Fry, 8 Ohio St. 359; Shearm. & Red. Neg. s. 84; 16 Moak, 374; Cooley Torts, 547; Angus v. Dalton, L. R. 4 Q. B. Div. 162; 28 Moak, 706, n.</p>

<p>[In Chancery.]</p> <p> Statute of Frauds. Part Performance. Sale of Grroioing Trees. Contract not to be Performed within a year. Injunction. Parol Contract. Parol Fvidence. </p> <p>The bill charged the defendant with entering upon and cutting and removing standing wood, &c., from the timbered lands owned hy the orator’s intestate, and prayed for damages and a perpetual injunction. • The defendant admitted the charge, and justified under a parol contract. The master found such contract; and that hy it the defendant was to clear eighty acres of said land,- — ten acres the first year, and then five each year, — and was to have the wood in payment; that he had performed for three years, and claimed the right to continue; that he had expended somewhat in teams, &c., in preparation; and, at the intestate’s request, that he had cleared that part culled of timber, and so less remunerative; Said, (1) that parol evidence was admissible, at least to prove a license, which would he a defence to the trespass; (2) that the contract was within the statute of frauds, as it was not to be performed within a year, and that the defendant had not so far performed that he had any enforceable rights under the unexecuted portion of the contract; (3) but before the injunction is granted, the orator should do equity in respect to the executed portion, i. e., make the defendant whole.</p>

Bill in Chancery. Heard on bill, answer, and tlie report of a special master, September Term, 1883, Franklin County, Royce, Chancellor. Decree that the bill be dismissed. The oratrix is a married woman;, and petitioned the court by William G. Greene, her husband, as her next friend. The bill prayed that the defendant Smith be decreed to deed the house and lot to the oratrix and to give up possession.

<p>Heard by the court on a referee’s report, December Term, 1883, Caledonia County, Ross, J., presiding. Judgment for the defendant.</p> <p>It appeared, that sometime prior to 1877, the plaintiff had signed the bond of one Abbott to the Probate Court as guardian of Phebe Gregg, an insane person; that subsequently said Phebe deceased, said Abbott was appointed administrator of her estate, and the defendant signed his probate bond; that the defendant had also signed certain paper for said Abbott as surety to the Merchants’ National Bank of St. Johnsbury, and had received as security notes signed by Avery George, and a draft on Hill, Jewell & Co. of Boston.</p> <p>The heir of Phebe Gregg’s estate made a claim against said Abbott for $1,000, coming from said estate; and claimed that the plaintiff and defendant were each liable therefor, or for some part of it as sureties on said Abbott’s bonds.</p> <p>Because of this claim, on January 14, 1878, the plaintiff and defendant entered into the following agreement:</p> <p>“ Whereas Claud Somers signed J. D. Abbott’s guardian bond as surety for him to the judge of probate of Mrs. Phebe Gregg as an insane person, and whereas Moses Johnson signed as surety for said Abbott his administration bond on the estate of said Phebe Gregg, and a question being made by the heir of said Phebe, to wit: Mrs. Caroline Holmes, she claiming that said Abbott is in arrears on both said bonds and claims, that the said bondsmen are liable to her for any balance on either or both said bonds : Now. we, the said Claud Somers and Moses Johnson, hereby agree with each other to jointly defend any and all suits on said bonds charging us with liability thereon, and to be at equal charges in such defence, and share equally in any and all liability or liabilities which may be adjudged against us, whether the liability is on either of said bonds, to wit; the guardian bond or the administration bond.”</p> <p>The defendant realized a larger sum out of the collateral than was necessary to indemnify him for signing as surety for Abbott said bank notes, and this suit was brought to re- ■ cover one-half of such excess. The plaintiff and defendant settled the claim of the Gregg heir by each paying $250/ It also appeared that the plaintiff had brought a suit against said Abbott, and said George as trustee, and the defendant as claimant, which suit was tried on a commissioner’s report, June Term, 1880, Caledonia County, and decided in favor of the defendant. The report in that suit was made a part of the report in this, so far as it is applicable. It was there found :</p> <p>“December 27, 1877, at the time the assignment was made, and the draft on Hill, Jewell & Co. was given, nothing was said about the liability on which the draft was to be applied as collateral. Johnson was not then aware that he was on Abbott’s bond at the probate office, or had forgotten the fact. But it turned out that lie had signed a bond in the sum of $500, with Abbott, in the matter of Mrs. Gregg’s estate, and on April 27, 1878, he had to pay the sum of 8250 on this liability, to avoid a suit on said bond. There is no direct evidence to show whether Abbott was aware of Johnson’s liability on said bond when he gave the draft or not. From all the circumstances I incline to the belief that Abbott intended to secure Johnson for all his liability for him. But I do not think it was in his mind at the time he gave the draft and assigned the notes that there was likely to he any liability other than that at the bank.”</p> <p>At the time the George notes and mortgage were given to the defendant, he signed a receipt for them in which it was stated : “ This is given to secure me for endorsing two</p> <p>notes, each for the sum of $500 at the Merchants’ National Bank of St. Johnsbury, and when said notes are paid the said notes and mortgage are to be returned to said Abbott.” The receipt was given in May, 1877; but the notes and mortgage were, not assigned till December 27, 1877, when it became apparent that the defendant had got one of the bank notes to pay.</p> <p>The relation of co-sureties existed between the parties. Whatever the relation may have been prior to the agreement of January 14, 1878, they from that moment became jointly liable to the heir of Mrs. Gregg for such sum as might be found due from Mr. Abbott, upon one or both bonds. If the court can say from the evidence before it that the parties in fact are co-sureties then each becomes liable to the other according to the law governing that relationship. 1 Lead. Cas. Eq., Part 1, pp. 137,154, 172; Story Eq. s. 495. Parties may by agreement assume the relation of co-sureties. Whipplev. Briggs, 28 Vt. 65; Hinsdill v. Murray, 6 Vt. 412; Miller v. Banger, lb. 136.</p> <p>These parties, it is true, were sureties upon separate bonds, but those bonds were for the faithful performance of the same duty by the same principal. In fact the engagement was the same in both cases. It was an undertaking that Mr. Abbott should faithfully keep and disburse the moneys of Mrs. Gregg, and pay over the balance to her heir. 1 Lead. Cas. Eq. pp. 123, 125; Mete. Cont. 177.</p> <p>The rule in equity, where one of two joint sureties has collateral, the other is entitled to share in it, is not controverted. But the Hill, Jewell & Co. draft was not security for signing the administration bond, but for endorsing the bank notes. Johnson had utterly forgotten the existence of the bond. The defendant by judicious management, and by reducing his liability to the bank, succeeded in realizing a larger sum from the George notes and the Hill, Jewell & Co. draft than he had to pay the bank.</p> <p>Suppose the defendant had paid over to Abbott all that he collected above the amount he paid the bank. Had he not a perfect right to do so? and had the plaintiff any right to object? This is a perfect test of the claim of the plaintiff in this suit.</p> <p>The ground on which a co-surety becomes entitled to share in a security held by another surety is, that the security becomes a trust fund for the payment of the debt on which he is holden. How does this plaintiff become entitled?</p> <p>Abbott never gave any security for any debt on which this plaintiff was liable. The defendant never agreed to hold any security for him.</p>

Trover for 400 sap buckets. Plea, not guilty and notice. Trial by jury, June Term, 188:3, Caledonia County, Ross, J., presiding. Judgment for the defendant. The plaintiff’s evidence tended to show that he obtained a judgment against one Williams by confession, and that the buckets were sold to him by an officer at public auction on his execution against Williams.

<p>Probate Court, Decree of when Void. Homestead of Widow. Interest. Administrator.</p> <p>1. A decree of the Probate Court distributing the estate of a deceased husband is void so far as it includes money derived from the sale of the homestead right, or personal property, owned by his widow, whose death was subsequent to that of her husband, and whose estate was unadministered; and an action cannot be sustained against the administrator and his surety on the probate bond by an heir to recover his portion of his mother’s estate so included in the decree distributing his father’s estate.</p> <p>2. The administrator should be charged with interest received by him on interest-bearing notes.</p> <p>3. The case was recommitted to the referees to report more fully on a certain point raised in the court below.</p>

Trespass guare clausum and for cutting and carrying away timber. Plea, not guilty. Trial by court, September Term, 1881, Essex County, Ross, J., presiding. Held: and cited 3 Kent Com. 611; Taylor L. & T. 493; Van Rensselaer v. Jewett, 2 Comst. 141: Jones v. Reed, 15 N. H. 68; Jewett v. Berry, 20 N. H. 36; Maidstone v. Stevens, 7 Vt. 487; 2 Story Eq. 1315, 3325; Atkins v. Chilson, 31 Met. 112; Powers v. Powers, 11 Vt. 2G2; R. L. s. 1259; Jamaica v. Plart, 52 Vt. 549.

<p> Insolvent Law. Go-Sureties. Contribution. </p> <p>A and B gave their note to the bank for 11(1,000, and each received one-half of the money. Soon after, B was adjudged an insolvent, and the bank procured the whole note to be allowed against his estate, which paid a dividend of forty-two per cent. After the allowance the bank sold its interest in the note and claim to A’s agent, who purchased for A. The assignee paid the forty-two percent on the entire note to A, and now seeks to recover back one half of it; Held, that A was surety, that the estate had not yet paid what belonged to it to pay, and that the action could not be sustained.</p>

<p>Trustee Process. Exempt, Non-Exempt Property. Life Annuity. Homestead. R. L. s. 1076. Presumption.</p> <p>1. When one sells property, a part of which is exempt and a part non-exempt, an amount of the debt equal to the value of the exempt part cannot be attached by trustee process.</p> <p>2. If in such case there was no fraud, and it was the understanding between the parties that a debt due from the vendor to the vendee should be paid out of the non-exempt, it will be so applied, and only the balance held.</p> <p>3. Nor can the avails of exempt property be reached by trustee process, although the debt assumed the form of a life annuity; and the defendant had left the State to reside in New Hampshire.</p> <p>4. Homestead. The defendant owned two lots of land, one containing an acre and a half with a house on it kept for his home, worth $460, and the other lot, forty rods distant, kept and occupied as a part of the homestead, worth $650, and sold both; Held, that $500 were exempt, as the homestead included not only the house and lot on which it stood, but $50 in value in the other lot.</p> <p>5. It will not be presumed that defendant had exempt property of the same kind in New Hampshire.</p>

Foreclosure of mortgage. Heard on bill, answer, and • a master’s report, March Term, 1884, Washington County, Powers, Chancellor. Decree of foreclosure.

<p>Bill in Chancery. Heard March Term, 1882, Washington County. Redfield, Chancellor, decreed, that the annuity provided for the oratrix in and by the ante-nuptial contract is a valid and subsisting claim against the estate of Walter Little, upon which she is entitled to be paid the sum falling due thereon, July 27, 1875, and all sums falling and to fall due thereon thereafter; that the defendant Sibley, and those through whom he claimed to hold the property mortgaged by the heirs of said Walter Little, took with notice of the claim of the oratrix, and her right to be paid from the assets of that estate; that said property being all of the unadministered and undistributed assets of said estate stands charged as with a lien for the payment of said sums due and to fail due upon said annuity — such payment to be enforced against said property by foreclosure. The bill was dated August 1, 1880.</p> <p>By the common law, the creditor had no lien on the land as against the debtor, and none on the land as against the heir or devisee, if he alienated the land before suit brought. He might be liable for what he sold the land for, but the land could not be followed into the hands of an assignee. Record v. Williams, 7 Wheat. 59; 1 Jar. Wills, 584; 20 Johns. 414; 29 La. Rep. 440; 31 Mo. 98; Wood v. Leland, 22 Pick. 503; lPick. 387; Wilsons, Kimbley, 7East, 128; 1 Russ. & M. 338; 71 N. C. 60; Page v. Adams, 4 Beav. 269; Hall'v. Martin, 46 N. H. 387; Tickner v. Harris, 14 N. H. 272; 2 Wait Act. & Def-. 397; Rawle Cov. 543-9; Will. Ex. 1692; 3 Sug. Vend. 97; 2 Lead. Cas. Eq. 133, 372; 3 Will. Ex. 1790.</p> <p>The debts having all been paid in 1861, the administrator voluntarily surrendered up the property to the heirs. Therefore the heirs became seized in fee in their own right, free and clear of all incumbrance; but leaving them liable personally for any contingent debt of Walter Little that might afterwards arise against his estate. They were personally liable as for their own debt, but no lien existed on the land. They could, sell or mortgage it. Under what rule of law did the marriage contract become a lien on the real estate? There is no such rule in the common law or the statute. The Revised Statutes contain a perfect system as to contingent claims.</p> <p>The law requiring a decree of the property at the end of two and a half years to the heirs, the Court of Chancery, will treat that as done which the law requires to be done; and the debts having been all paid, and the administrators having surrendered the real estate to the heirs, the want of a formal deci’ee to the heirs was wholly unnecessary. The debts having been all paid, the widow’s lien was gone. Blackmer v. Blackmer, 5 Yt. 355; Rev. St. p. 357-8.</p> <p>When Sibley took his deed or assignment, in March, 1878, the heirs had been in possession from the death of Walter Little, July 27, 1859, about nineteen years, without any interference by the oratrix with the premises. He made all the enquiries the law required. Adams v. Soule, 33 Yt. 538; Boyclen v. Wood, 38 Yt. 628.</p> <p>On the death of the ancestor, the real estate instantly vests in the heirs, subject to the lien of the administrator for the payment of debts; which lien expires and the title vests, when the debts are paid, without decree of the court. Hubbard v. Bicart, 3 Yt. 207; Hyde v. Barney, 17 Yt. 280; Austin v, Bailey, 37 Yt. 219.</p> <p>The claim of the oratrix was not barred because it was not presented to the commissioners. Loiorey v. Stevens, G Yt. 113; Clark v. Winchell, 53 Yt. 408. As to the annuity, see Hall v. Hall, 2 McCord Ch. (S. C.) 281; Manning v. Bandolph, 4 N. J. L. 144; 4 Bradf. (N. Y.) 129. The claim was sufficiently presented to the Probate Court. R. L. ss. 2204-5. The whole estate was charged with the payment of debts. Will. Real Pr. 77, 80; 1 Wash. R. P. 76; Green. Cruise, 57, 60; 4 Kent Com. 420; 4 Mass. 150; R. L. ss. 2066, 2088, 2132; Hubbard v. Ricart, 3 Vt. 207; Sherman v. Abell, 47 Vt. 547.</p> <p>The land when conveyed by the heirs was charged with this outstanding debt. The grantees took with notice of the widow’s rights. 1 Story Eq. ss. 395, 408, n.; 2 Story Eq. 1257; Hart v. Bank, 33 Vt. 252; 1 Wait Act. & Ref. 231.</p>

<p>Assumpsit. Trial by jury, March Term, 1884, Washington County, Powers, J., presiding. Verdict for the plaintiff.</p> <p>The plaintiff lived in New York. It was claimed that the defendant company was composed of members in New York and Vermont. The writ was served on Sidney Wallace, Wm. F. Gillett, N. W. Vinson, Wm. Clark; and Charles S. Wallace was afterwards cited in. It appeared on trial, that the-said parties, who lived in Vermont, and certain other parties living here, and one J. K. Sanborn, who lived in Pennsylvania, some years ago, and before the account in question accrued, agreed to form a co-partnership,- and drew up and signed articles of agreement. The plaintiff’s account was for 514 bushels of common oats, claimed to have been sold to the said U. S. Ilulless Oat Company, and purchased by said C. S. Wallace, a sub-agent, at the instance of said Sanborn, who claimed to be the general agent of the company. It appeared that two of the parties who signed the original. articles of agreement, deceased before said account accrued; and it did not appear that the defendants, Vinson and Gillett, ever consented to continue said partnership, or to proceed with that or any •other partnership after their decease. But the business after their decease was not closed up or liquidated, but proceeded as before, though there was no evidence that Gillett and Vinson knew what was being done by the company. It did not appear, that said Vinson and Gillett knew anything about the purchase of common oats, or ever consented to the purchase of such oats. It did appear, that some of the other defendants held meetings, and agreed to continue the partnership, and extend it beyond the scope of the original agreement; but it was not claimed, and it did not appear, that said Vinson and Gillett ever consented to any such arrangement, or ever knew what said company . was doing.</p> <p>The main question was as to the liability of Gillett and - Vinson. The articles of agreement stated in part, that the subscribers</p> <p>“Do form themselves and create themselves into a co-partnership or company, to do the business of cultivating, and fitting for use, as food for man and feed for animals, and for seed, the grain known by the name of hulless oats, and find a market for the same in every portion of the United States of America, and in every other portion of the world.</p> <p>“And the duration of this co-partnership shall be the term of five years from the first day of January, A. D. 1876.</p> <p>“ And this co-partnership shall be known and designated The United States Hulless Oat Company.” * * * * “The general agent shall not, nor shall any of the officers of the company, contract any debt for any purpose whatever, unless authorized to do so by the company. Neither shall the company contract any debt without the consent of each member made in writing.” * * * *</p> <p>“ It shall be the duty of the officers and members of the company to keep a profound secret the rules and regulations of this company, together with all its contracts and affairs of whatever kind or nature, except to parties in interest with the company to know.”</p> <p>The officers consisted of a president, secretary, and general agent.</p> <p>Two of the partners deceased before the plaintiff’s account accrued. Neither Gillett nor Vinson ever consented to proceed with the business, or even knew what the others were doing. The partnership was dissolved by the death of the two partners. Story Part. s. 195; Woodivorth v. Doivner, 13 Vt. 522.</p> <p>The purchase of common oats was not within the scope of the partnership agreement, and defendants Gillett and Vinson cannot be made liable unless proof is adduced that they knew of the transaction and assented to it.</p> <p>No such proof was adduced and they knew nothing of the transaction as exceptions show. McNeil v. Reynolds, 9 Ala. 313; Goodman v. White, 25 Miss. 163; 8 Mich. 526; Clayton v. Hardy, 27 Mo. 536; 30 N. Y. 344; Chapman v. Devereux, 32 Yt. 016. Tlie deposition was improperly admitted. Cottrill v. Vcmduzen, 22 Yt. 511; Noyes v.' Cushman, 25 Yt. 390.</p> <p>The death of the two partners did not dissolve the partnership, as it was designed to be continuing. Tenney v. N. E. Protective Union, 37 Yt. 04; Walker v. Wait, 50 Yt. 608. The deposition was properly admitted.</p> <p>Rules of court, and practice under them, are subject to control and modification by the court in its discretion, in the interests of justice, and no exception lies to rulings respecting them. Bank v. Marsh, 46 Yt. 443.</p>

<p>Libel. Heard on demurrer to the defendant’s plea, September Term, 1884, Redfield, J., presiding. Judgment, that the plea to the first count in the declaration (wherein bribery is averred) is sufficient; that the plea to the second count is insufficient, and demurrer overruled.</p> <p>The declaration alleged, in part, that the defendant published a malicious libel of and concerning the plaintiff “and of and concerning his official conduct in said office of Chief Judge of the Supreme Court of Vermont, that is to say: ‘He’ (meaning the plaintiff) ‘has received presents and favors from leading litigants ’ (meaning thereby that the plaintiff was guilty of bribery in his said office of Chief Judge by receiving valuables from parties having causes for determination in the court over which the plaintiff then presided, with a view to influence the decision of the plaintiff in said causes).” The plea is sufficiently stated in the opinion of the court.</p> <p>The defendant should have justified the publication in the sense charged by the innuendo, and having failed to do so, the demurrer should be sustained. Nott & Wife v. Stoddard, 38 Yt. 25; Holton v. Muzzey, 30 Yt. 365; Torry v. Field, 10 Yt. 408; Skinner v. Grant, 32 Yt. 456; Commonwealth v. Snelling, 15 Pick. 321; Lindsey v. Smith, 7 Johns. 360; Knapp v. Fuller, 55 Yt. 313; Town. SI. & Lib. s. 196; Whar. Prec. Ind. 557. The language clearly indicates that the defendant intended the reader to believe that the plaintiff was a corrupt judge; that he was guilty of the crime of bribery; and any plea that does not justify to this extent is bad on demurrer. But there is no claim in these pleas that these presents and favors were given, bestowed, or received with any corrupt intent or motive, or that they were for the purpose of influencing the decisions of the plaintiff in any of the causes pending in the courts over which the plaintiff presided, or that the defendant • will prove or attempt to prove that the plaintiff has been guilty of the crime of bribery. There is no attempt to justify the words published in the sense alleged in the declaration.</p> <p>If there are any defects in the declaration, they are cured by the pleas. Probate Court v. Van Duzen, 13 Yt. 135; Hoyt v. Smith, 32 Yt. 304.</p> <p>As the demurrer fastens upon the first substantial defect in the pleadings, the inquiry is, whether the words in the first count ai'e libelous, and whether they impute the crime of bribery ascribed to them by the innuendo. Gould PI. p. 474, ss. 3G, 38. It will not be seriously claimed that the words are libelous without the innuendo. They do not impute any crime, nor expose the plaintiff to ridicule or contempt. Does the declaration contain any averment of fact upon which the innuendo can be sustained? The office of an innuendo is to explain what is before alleged; a mere form of introducing explanations, as id est, &c. 1 Chit. PI. 406; Taft v. Howard, 1 D. Chip. 275; Fitzsimmons v. Cutler, 1 Aik. 33; 1 Stark. SI. &. L. 41,8, 431; 8 East, 427. On the principles laid down in'By an v. Madden, 12 Yt. 51, Merritt v. Danforth, 48 Yt. 65, Wood v. Scott, 13 Yt. 65, and State v. Atkins, 42 Yt. 252, it is very clear that the innuendo charging bribery is not sustained by any prefatory averment of facts necessary to constitute the crime. Odg. Lib. 100, 116. The only averment of fact in the declaration having any connection with bribery is, that the plaintiff was Chief Judge. There is no statement that while he was such that he sat in court as judge, or tried any cause.' From aught that appears in the declaration the presents were from litigants in courts of other States. Stark. Lib. p. 391; 8 R. I. 143. The conclusion of the plea is the usual one for a full defence: — “ Did publish the said words of and concerning the said plaintiff as in said first count of said declaration mentioned.” As means like, — similar to. 3 Chit. PI. p. 1031-3; Craft v. Boite, 1 Saund. 243c, 244a.</p>

<p>Petition by the receiver of the St. Albans Trust Company. The petition was addressed to the Court of Chancery, was filed July 29, 1884, and heard by Chancellor Royce, October 25, 1884. The cause was heard on the petition, the several answers of the National Life Insurance Company and of C. W. Witters, assignee of Lawrence Brainerd, and oral proofs. Petition dismissed. See Dewey v. The St. Albans Trust Co. 5G Yt. 47G.</p> <p>Sec. 20 of the charter means that the directors shall repair the loss of capital by laying an assessment, or making a requisition, not upon themselves or strangers, but upon the several stockholders, that they pay into the corporation pro rata, according to and upon the number of shares they own, such sum as may be necessary to repair the loss; as, a certain percentage, or a certain number of dollars, upon each share, not exceeding the par of the stock. United States v. Knox, 102 U. S. 422; Morse Bk. 503. The corporation had not lost its power to act as such — 56 Yt. 476; and the impairment of the capital being apparent, the duty of the directors arose “forthwith to repair the same by assessment.”</p> <p>Their failing to do this, the right was in the creditors to apply to a court of equity by original bill that an assessment be laid. Mor. Corp. 575. The company, though not dissolved, is insolvent, and in the hands of a receiver appointed by the Court of Chancery. The court may act directly in ordering the levying and payment of the assessment, without the intervention of the directors, for, in view of the law, both directors and stockholders as integral parts of the corporation are before the court in all proceedings touching that body; so much so, that it is not even necessary that process be served upon them in order to obtain jurisdiction of them, or of the question. Sanger v. Upton, 91 U. S. 56 ; Scoville v. Thayer, 105 U. S. 143.</p> <p>The capital stock of a moneyed corporation is a trust fund available to creditors in the event of insolvency. Equally so is the unpaid subscriptions for stock. Upton v. Tribilcock, 91 U. S. 47.</p> <p>The obligation by section 20 of the charter imposed upon the directors to repair loss of capital is equally an asset, or resource, to be used for the benefit of creditors. It is, as if incorporated into the terms of the subscription, that the subscribers shall not only make up the full capital subscribed, but shall maintain it in its integrity, each contributing his proper proportion. It is a “property that belongs to ” the trust company which it is made the duty of the receiver to collect. R. L. 3550.</p> <p>The liability of the National Life Insurance Company does not differ from that of the other stockholders. It was a stockholder in fact and appeared to be such on the records, without notice or indication that its title was other than unconditional and absolute. As respects the trust company and its creditors, they are strangers to the undisclosed relations between the two Brainerds and the National Life Company. Pullman v. TJpton, 9G U. S. 328; National Bank v. Case, 99 U. S. 628 ; Mor. Corp. s. 373, GOO, G01, G02; Adderley v. Storm, 6 Hill, G24.</p> <p>It is objected, that assessments might be made indefinitely, and for many times the amount of the stock, so long as any debts remained unpaid, the solvent stockholders being made answerable for the insolvent ones.</p> <p>No such result is claimed, nor would this be reasonable. The liability is not that of partners ; the charter creates no such general liability, but it is limited to an “assessment,” implying a pro rata apportionment and charge upon the stockholders according to their ownership of shares, and not exceeding the par of the shares. The subject matter determines this.</p> <p>I. The receiver is not entitled to any order for an assessment. Holders of paid up capital stock are not, nor is their stock, liable to assessment unless by express statutory provision, and such assessment can be made only for the purpose and upon the conditions expressly stated in the statute.</p> <p>Neither by the general law nor by any provision of the trust company’s charter are its stockholders personally liable to its present creditors ; and, this case showing that the capital stock was paid up, its stockholders are liable if at all only to assessment under said section 20.</p> <p>The 20th section read by itself and according to the plain and natural import of its words, is not ambiguous. It looks towards future business only and was evidently inserted to prevent the corporation from continuing to do business with impaired capital.</p> <p>II. Any order for an assessment should, if made, be limited to be upon and enforced against the stock only.</p> <p>At common law paid up stock could not be assessed. The stock of the trust company was paid up and the case shows that the stockholders have not contracted or promised to pay anything upon it. The assessment is not asked for the purpose of collecting the purchase price of the stock or any part thereof, nor for calling in any part of the capital in the hands of stockholders for the corporation or its creditors. The liability sought to be enforced is purely statutory. As before stated, there was when the charter was enacted and ever since has been a statute providing for the sale of stock for the non-payment of assessments upon it. R. L. ss. 3251, 3200, 3261 ; Laws of 1865, No. 22; G-. S. c. 86, ss. 12, 2.</p> <p>Here is then a liability created by statute which did not exist at common law and for which there was when it was created and ever since has been a statutory remedy. Such statutory remedy is exclusive. Sedg. Stat. Law, 93, 97, 401, 400; Dauchy v. Broten, 24 Yt. 197; Windham Prov. Inst, of Savings v. Sprague, 43 Yt. 502; Newman v. Waite, lb. 587; Brattleboro v. Waite, 44 Yt: 459; Thayer v. Partridge, 47 Yt. 423; Allen v. Walsh, 2'5 Minn. 543; Johnson v. Fischer, 30 Minn. 173; Coleman v. White, 14 Wis. 700.</p> <p>Cross & Start, for the National Life Insurance Oo. and other stockholders.</p> <p>This proceeding is analogous to a mandamus. The court cannot grant the relief asked, unless it be upon the ground that the provisions of sec. 20 are a subsisting security at all times for existing creditors.</p> <p>If it is such security, the result would be to make the solvent stockholders personally and individually liable, not . only for all debts of the company, but for the stock of their insolvent associates.</p> <p>The making of the solvent stockholders jointly liable personally, for all the debts of the company, would be a repeal, by implication, of section 1 of the charter, which provides that the subscribers to the stock and their successors and assigns shall be a corporation and body politic, one of the attributes of which is that the individual liability of 'its members is limited to the amount invested in the stock. Ang. Corp. ss. 41, 591.</p> <p>The making of the solvent stockholders guarantors to all irresponsible stockholders of the ultimate par value of their shares, would be a repeal, by implication, of the whole charter and all law.</p> <p>When an assessment is made under section 20, the only obligation imposed upon the individual stockholder is that arising from the fact that an assessment is made. There is no provision of law in the charter or elsewhere which creates any liability in the stockholder expressly to pay any such assessment. The law has, however, given a specific remedy for the enforcement of such assessment by a sale of the shares assessed by public auction, and it is submitted that such remedy is the only remedy. Conn. & Pass. R. R. R. Co. v. Bailey, 24 Yt. 479: Dauehy v. Brown, 24 Yt. 197; Windham Prov. Ins. of Savings v. Sprague, 43 Yt. 502; Essex Bridge Co. v. 'Tuttle, 2 Vt. 399.</p>

<p>Complaint for a writ of quo warranto.</p> <p>The complaint set forth, that the defendant, an incorporated trust company, commenced business about the first day of January, 1809, and continued to transact business under its charter until about the first day of August, 1883; that the defendant, on or about January 1, 1880, in accordance with the powers of its charter, received from the said Alice L. Green, wife of said Wm. Green, the sum of $2,000 on deposit; that the deposit was received under the provision of the charter, that, in case of the dissolution of the company by act of law or otherwise, it should have a preference; and that “by reason of the said deposit, which has ever since continued subject to the right and preference aforesaid, she still remains a creditor to an amount exceeding the sum of $500; and therefore the complainants say that they are interested in the matter of this complaint and the judgment herein sought; and prosecute this complaint in their own behalf and in the behalf of all others of like interest.”</p> <p>The complaint also set forth, that the defendant had misused its franchises, in that it had not invested its deposits in the prescribed securities, but had fraudulently and illegally loaned the same to its officers, who were financially irresponsible; that on the first clay of August, 1883, the deposits amounted to about the sum of $580,000, of which sum nearly $500,000 were illegally loaned to said officers; that the capital stock was wholly exhausted, but the directors had not repaired the same by assessment; that the corporation was hopelessly insolvent and unable from lack of funds to perform the function of a moneyed corporation; that its president had absconded from the State, and had been adjudged an insolvent; that the defendant, having become insolvent on or about the first day of August, 1883, then closed its doors, and refused payment to the said Alice, and to all other depositors; that it has not used its franchises since that time; that it is not possible for it to provide means of paying its depositors in full, nor do any of the stockholders or officers expect to or intend to perpetuate the existence of the corporation for the purpose mentioned in the act of incorporation; that the inspector of finance for the State of Vermont had proceeded against the defendant, and as a result a receiver was appointed by the court to take charge of the defendant’s property and effects. The prayer was that, inasmuch as said Alice could not secure that preference guaranteed to her by the charter, the “ corporate franchises of the said St. Albans Trust Company may be declared forfeited, and a judgment dissolving said corporation be entered according to law.”</p> <p>The answer, signed and sworn to by C. W. Rich, the receiver, and by H. E. Burgess, treasurer, claimed that the court ought not on the facts alleged, to grant the prayer; that said receiver entered upon the duties of his appointment, that he had collected debts due to the defendant, that he. had made one dividend under the order of court, that he had brought suits, which were now pending, &c., and that the corporate powers of the trust company would be needed.</p> <p>See the case of Charles Dewey, inspector of finance, v. The St. Albans Trust Co., ante; and the same case in 5G Vt. 470, for other facts bearing on this case.</p> <p>The answer admits the misuse of the franchises, the unlawful loans, the impaired condition of the capital stock, the defendant's insolvency, &c.; but claims that the facts are insufficient in law; that the court ought not in the exercise of a reasonable discretion to dissolve the corporation; and that the pendency of certain suits, instituted by the receiver, requires that the existence of the corporation should be continued. The facts stated are sufficient in law to warrant the interposition of the court. State v. Com. Bank, 33 Miss. 474; State v. Rea,l Estate Bank, 5 Ark. 595; Priest v. State-, 19 Md. 339; Hig'h Ex. Rem. ss. 648, 660,' 949; Mor. Corp. 640, G52. Quo warranto is the proper remedy. Bou. Die. tit. scire faciasj 1 Bl. Com. 485; 23 Wend. 221; 21 N. J. 9; 28 Yt. 587. The dissolution of the corporation cannot injuriously affect the exertions of the receiver in collecting the assets. Mor. Corp. 6G1.</p> <p>The petition is brought upon chapter 74, R. L. This is erroneous. The case was proper for a proceeding by scire facias under chapter 72, R. L. These two statutes are framed upon the distinction long recognized between the two processes. As to the distinction, see remarks of Ashhurst, J., in King v. Pasmore, 3 T. R. 199, 244; 2 Kent Com. 313.</p> <p>These two statutes are so radically unlike, that it will not do to confound them, or use either indifferently. The remedies are necessarily exclusive.</p> <p>Ch. 72 is explicit in its command, that in order that “grants may be adjudged forfeited,” s. 1329, “the mode of process shall be by writ of scire facias” (s. 1331); shall be made returnable to the County Court; be brought and prosecuted by the State’s attorney in the name of the State; be tried by jury, &c.</p> <p>This court therefore has no jurisdiction to entertain this petition for the purposes sought.</p> <p>Again, the petitioners have no right in their own names alone, and without the sanction and joinder of the State’s attorney, to institute these proceedings for the end sought. Murphy v. Farmer's Bank, 29 Pa. St. 415; High Ex. Rem. s. 654.</p> <p>To take away a legislative grant without the consent or knowledge even of the sovereign making the grant, and that upon the application of a single person having an individual interest therein, would not be a discreet use of judicial power.</p> <p>Tiie dissolution of the corporation would embarrass the prosecution of pending suits.</p>

<p>Bill in Chancery. Heard on bill, answer, and the report of a special master, September Term, 1883, Royce, Chancellor. Decree for the orators, 'that the legacy of $000.00 with interest is due to them, and that the payment of the same be made a charge upon lot of land held by Wait Chase's estate. The bill was originally brought only against said Wait Chase; but on petition, at said term of court, Peter Wetherbee, Abigail Wetherbee, and Hannah Chase, by a pro forma ruling of the chancellor, were also made parties defendant. Hannah Chase was the widow of the testator, Ichabod Chase; Wait Chase and Abigail Wetherbee were his children and only heirs; the three orators were his grandchildren, and the children of said Peter and Abigail. The defendant, Ella R. Chase, is the administratrix of the estate of Wait Chase deceased. That part of the will relating to Wait Chase was as follows:</p> <p>“I give, devise, etc., unto my son, Wait Chase, and his heirs the mountain lot (so called) containing 87 acres of land, &c. * * * on the following conditions, to wit: that the said Wait Chase pay to the children of my daughter, Abigail Wetherbee, the sum of $600.00, to be divided in equal proportions among the children of my said daughter.”</p> <p>The bill alleged as to the settlement of the case in the County Court: “ That the said agreement upon which said judgment was rendered, and the said judgment of said County Court, and the said agreement for the division of the estate of Ichabod Chase between said Hannah Chase, Wait Chase, and Abigail Wetherbee, wei-e entered into, had, and consummated for the express purpose of depriving your orators, Byron J., Elbert J., and Luna D. Wetherbee, of said legacy of $600 given to them by said will,” &c.</p> <p>The prayer of the bill was, that the judgment of the County Court and the record thereof in the Probate Court be vacated; that said will “be decreed to be and to be allowed as the last will and testament of the said Ichabod Chase;” that the amount due the orators upon the legacy “may be decreed and adjudged to be a special lien and charge upon the said mountain lot,” etc.</p> <p>The master found in part:</p> <p>“ Whereupon, in conformity with such stipulation, judgment was entered by the court without. trial at that term, that the order of the Probate Court proving and alio wing-said will be reversed and that said will be disapproved and disallowed, and that such judgment of the County Court be certified to the Probate Court, and it accordingly was duly certified to the Probate Court and therein recorded.</p> <p>“ On the same day that this stipulation was filed and in fulfilment of said agreement, Wait Chase, Abigail Wetherbee and her husband, and Hannah Chase made and delivered their respective conveyances and assignments to and between each other, dividing up the entire estate of Ichabod Chase among themselves, and Abigail Wetherbee and her husband, Peter C. Wetherbee, executed a discharge to the estate of Icliabod Chase of certain claims they had made against it and which were pending before commissioners on said estate in consideration of the discharge of certain claims in offset thereto in favor of said estate, these mutual discharges being in part fulfilment of the agreement in regard to the division and settlement of said estate above mentioned.</p> <p>“ In such division, Wait Chase took absolutely the mountain lot, so called, of about 87 acres, which by said will was devised to him on condition that he pay to Abigail Wetlierbee's children, who a,re the orators, the sum of $600; and after that time Wait Chase during his lifetime, and since then his administratrix, the defendant, have held and occupied that lot, claiming it as heir at law of Ichabod Chase and under such conveyances to him from Hannah Chase, the widow, and Abigail Wetherbee, the only other heir of Ichabod Chase, and not under said will. The value of said lot at the time the will was made was $600. It joined Wait Chase’s farm.</p> <p>“All the proceedings both in and out of court were had without the appointment or intervention of any guardian for the orators, who were then all minors, and neither of the orators nor the subsequently appointed guardian of said Luna D. ever consented to the same.</p> <p>“Wait Chase believed and claimed that the will was invalid, and was unwilling to settle the controversy, unless lie could obtain terms more advantageous to him than the provisions of the will. By the settlement he got better terms than under the will, in so far as he got rid of the charge upon his mountain lot of the $600 legacy to the orators; and this was substantially the only difference between his share under the will and under the settlement.</p> <p>“In making the aforesaid agreement, stipulation, and disposition of said will case, and the division of the entire estate among themselves, the Wetherbees, Hannah Chase, and Wait Chase intended to have the will set aside without trial, and take all the estate to themselves.</p> <p>“ As this purpose could not be carried out without necessarily resulting in getting rid of whatever risk existed in the conflicting state of the evidence as to the testator’s testamentary capacity, that the trial would result in establishing the will and consequently the orators’ l’ight to the legacy óf $600, and as there was no evidence that they did not understand that such was the necessary result of what they did, nor intend the natural consequence of their acts, the master finds that Hannah Chase, Wait Chase, and Abigail Wetherbee, and Peter Wethei’bee, in making and carrying out this agreement and dividing the entire estate among themselves without regard to the will, intended to avoid whatever risk there was of the orators’ rights to this legacy being established.</p> <p>“But there was no evidence before the master bearing upon their purpose and intent in making and carrying out such agreement for the settlement of the will cause and the division of the estate except the papers themselves showing such agreement and the fact that the agreement was carried into effect. * * *</p> <p>“Whether the result of a trial of the will cause in the County Court would 'have been in favor of the will, the master is unable to find. To the parties who made the agreement, stipulations, and division of the estate above mentioned that result was necessarily a matter of uncertainty. And such uncertainty and the probability of a long and expensive trial operated to some extent in leading them to agree that the will should be set aside without trial and the estate settled as it was. It appeared that Abigail Wetherbee shortly before the trial in the County Court was to come off went to Wait Chase and wanted to know if they could not settle that suit and have no further trouble about it; and this was the only proof in regard to any proposition for or negotiation about a settlement except the papers executed by the parties.</p> <p>“ From the conflicting evidence on the subject of the capacity of the testator to make the will submitted to the master, he finds proved by the balance of testimony that at the time of making said will Ichabod Chase was of sound mind and capable of making a will; and that the will is his last will and testament, and was duly executed.”</p> <p>Hannah Chase and Abigail Wetherbee should be made parties. Barb. Par. 329, 456; 1 Dan. Ch. 339, 348; Colt v. Larnier, 3 Cow. 320; Stoi'y Eq. PI. 236, 241; Epps v. Van Dusen, 4 Paige, 64; Bailey v. Inglee, 2 Paige, 278.</p> <p>A decree setting aside that record, or enjoining the use of it, necessarily sets aside the mutual settlement made, and leaves the question of the probate of the will open for determination in the Probate Court. If proved and allowed, all the parties must take according to the will, instead of in. the way they have elected. You cannot set aside the record as to Wait Chase’s estate, leaving it to stand as to the others, even though the orators might choose to single him out for attack. The claimed legacy, as a demonstrative legacy charged upon the mountain lot, imposed no- obligation upon Wait Chase to pay it, unless he saw fit to accept the devise of the mountain lot, in which case the payment would have become a personal debt. 2 Red. Wills, 472; Creed v. Creed, 11 Cl. & Pin. 491; ex parte Fuller, 2 Story C. C. 327; Glen v. Fisher, G Johns. Ch. 33; 3 Wash. R. P. 4G0. The master doeg not find fraud; it cannot be inferred. 1 Story Eq. 190.</p> <p>But the Court of Chancery has no jurisdiction to prevent the probate of a will, nor to set aside a will fraudulently procured, nor to take proof thereof though lost, destroyed, or suppressed. Perry Trusts, s. 182; 1 Story Eq. ss. 184, 440; Caines v. Chew, 2 How. 619; Paterson v. Gaines, 6 How. 583.</p> <p>No will can pass either real or personal estate, unless it is proved and allowed in the Probate Court, — R. L. s. 2049; and courts of equity are only ancillary to aid the Probate Courts. Adams v. Adams, 22 Yt. 58; fíoyden v. Ward, 38 Yt. 628; Bank v. Weeks, 53 Yt. 115; Merriam v. Hemmenway, 2G Yt. 565. The cases in which, as claimed, proof of a will may be made in chancery, are cases of fraudulent suppression or spoliation. Here the will was not suppressed; but is now in the Probate Court. See 1 Story Eq. 212, 215; Allen v. McPherson, 5 Beav. 1G0; Gaines v. Chew, supra; Armstrong v. Adm'r, 12 Wheat, 169; Tucker v. Phipps, 3 Atk. 360; Shumway v. Holbrook, 1 Pick. 114; Hall v. Gilbert, 31 Wis. G91; Lockwood v. Stockholm, 11 Paige, 87; 13 Yes. Jr. 290; 7 Dana, 90; 8 Humph. 390; Grant v. Grant, 1 Sand. Ch. 235.</p> <p>Chase, finding the devise too onerous, refused to accept it. By consequence, the mountain lot falls back into the general estate for administration. Frederick v. Gray, 10 Serg. & Raw. 182.</p> <p>If a devise be rejected by the devisee, and there be no other disposition of the estate in the will, it will descend to the heirs at law. Doe v. Smith, 6 B. & C. 112; Townson v. Tickell, 3 B. & A. 31; Kelsey v. Western, 2 N. Y. 501.</p> <p>The legacy given by the will to the orators is charged specifically'hrpon the mountain lot. 2 Red. Wills, 20ÍJ; 7 Paige, 421. The orators were minors, in no way represented in the County Court, and were not parties to the agreement by which the will was disallowed in that court.</p> <p>Irrespective of the question as to the appropriate remedy, it would seem to be clear, that a legacy secured to minors by the will of their grandfather could not be effectually defeated without their consent, and against their protest, by any agreement of the grandfather’s heirs, or any judgment rendered exclusively upon any such agreement.</p> <p>The Court of Chancery has jurisdiction. It has taken jurisdiction in a case very similar to this one. Mead et al. v. Langdon’s heirs, decided in Washington county in 1835, but not reported. This decision is approved by Redeield, Ch. J., in his work on Wills, 1 vol. p. 317.</p> <p>The orators, not being parties to the judgment in the County Court, and the agreement and judgment being fraudulent and void as to them, it is insisted that Wait Chase took the mountain lot subject to the legacy charged upon it. The judgment, by agreement, ought not to have a broader scope than the agreement upon which it was based. It was effectual to fix the rights of the parties to the agreement as to their right under the will, but ineffectual to divest the orators of a legacy under a valid will charged upon specific real estate.</p>

<p> Bankruptcy. Neiu Promise. Charge to Jury. Neto Trial. </p> <p>1. The plaintiff held two notes against the defendant, one a renewal of the other, and both for the same debt. In an action of assumpsit, to the defendant’s plea of discharge in bankruptcy, the plaintiff replied a new promise. The plaintiff’s son acted in her behalf at the time it was claimed the promise was made; hut he had the old note with him and did not know of the new one. The court in effect told the jury, that in order to recover, both parties must have mutually understood what the promise applied to, — the old or the new note. And this was made prominent by repetition; Held, error; as there was hut one debt to which the promise could apply; and that it was sufficient if the defendant understood that he was promising to pay his debt to the plaintiff.</p> <p>2. New Tbial. The petitioner in her original suit claimed that the defendant, in a public store, promised to pay a debt discharged in bankruptcy; but in this proceeding she failed to show that she made inquiry whether any one present heard the talk with the defendant; and the case had been tried once before, and so the defence was known; Held, that the defendant had been guilty of laches, and the petition was dismissed.</p>

Trover. Plea, the general issue. Trial by court, March Term, 1882, Royce, Ch. J., presiding. Judgment for the defendant. The property, for which the two defendants gave their receipt, was attached on a writ in favor of Thos. W. Clark, and judgment was obtained by default in the CountyCourt.

<p>Trover for taking two washing-machines and two ironing machines. Plea, not guilty. Trial by jury, September Term, 1884, Royce, Ch. J., presiding. Verdict ordered for the defendants. Counsel moved the court to order a verdict for the plaintiff, which was denied. The plaintiff’s mortgage was executed in New York, where the parties to it resided, and where the property was situated. The plaintiff agreed that the mortgagor, Langworthy, could remove the property into this State.</p> <p>The mortgage being valid where it was executed, was valid in this State. R. S. N. Y. vol. 3, p. 143; 2 Session Laws, N. Y., 1879 ; Taylor v. Boardman, 25 Yt. 581 ; Jones v. Taylor, 30 Yt. 42; Cobb v. Buswell, 37 Yt. 337. The plaintiff’s debt matured October 14. 1881; and after that time his title became absolute. 2 Wait Act. and Def. 165, 177; Parshall v. Eggert, 54 N. Y. 18. No refiling was necessary. 37 N. Y. 199. The right of action was complete. Duncans v. Stone, 45 Yt. 118 ; 2 Wait Act. and Def. 180. After default in payment the property was not attachable by the mortgagor’s creditors. 2 Wait Act. and Def. 178 ; Jones v. Taylor, supra j Champlain v. Johnson, 39 Barb. 608 ; Judson v. Edson, 35 N. Y. 664; Hall v. Samson, 35 N. Y. 277; Ferguson v. Lee, 9 Wend. 259.</p> <p>The N. Y. statute contemplates that the property shall remain within that State, or the lien is lost: 37 N. Y. 199 ; but here the mortgagee consented that the property might pass into Yermont. He thereby waived his lien. Jones Chat. Mort. 401, 466 ; 8 Mich. 143 ; 1 Kan. 259. The defendant Sowles acquired a valid lien by his mortgage. 27 N. Y. 268; 14 N. Y. 71 ; Jones Chat. Mort. 292. The bank made an attachment April 2, 1882, and the property was legally sold by defendant Halbert on execution. Wood v. Doane, 20 Yt. 612; Maxham v. Place, 46 Yt. 434 ; Moore v. Moore, 44 Yt. 85 ; Hill v. Kendall, 25 Yt. 528; Murray v. Chadwick, 52 Yt. 293 ; See Jones Chat. Mort. 1965 ; 7 Wall. 151; 35 N. Y. 657.</p>

Petition to foreclose a mortgage. Heard on petition, several answer and cross-bill of A. 0. Brainerd, the report of a special master and exceptions thereto, April Term, 1884, Royce, Chancellor. The petition was taken as confessed against all the defendants except the said A. 0. Brainerd; and as to him, the chancellor decreed' a foreclosure of the mortgage, and dismissed the cross-bill.

Petition under R. L. s. 1428 to vaeaté and set aside a judgment of a justice of the peace, and to enter and defend the suit. Heard on motion to dismiss, April Term, 1884, Royce, Oh. J., presiding. Motion overruled. The motion to dismiss the petition was on the ground that it was not verified by the oath of the petitioners.

<p>Heard on motion to dismiss the information, April Term, 1881, Royce, Ch. J., presiding. Motion overruled; and cause passed to the Supreme Court under R. L. s. 1390. The motion to dismiss was, in effect, that the minute made by the clerk of the court on the information was not sufficient, in that it did not state when the information was exhibited.</p> <p>The minute on the information was clearly insufficient. R. L. s. 1719; Pollard v. Wilder, 17 Yt. 18; Montpelier v. Andrews, 16 Yt. 601; Wheelock v. Sears, 19 Yt. 559.</p> <p>The minute on this information accomplishes the object of the statute, and is a substantial compliance with its requirements. R. L. s. 1719; State v. Bartlett, 11 Yt. 650.</p>

Action to recover the penalty for the taking of illegal interest. Heard on the report of a referee, September Term, 1883, Rotcb, Ch. J., presiding. Judgment for the plaintiff to recover the sum of §3,191.70.

<p>Genekal Assumpsit. Plea, general issue and notice. Trial by court, September Term, 1884, Royce, Ch. J., presiding. Judgment for the defendant.</p> <p>The action was brought to recover pay for the plaintiff’s services performed as lister. He was elected one of the listers of the defendant town at the annual March meeting in 1882, accepted the office, and rendered the services charged in his specification. The court found that the .amount charged was reasonable, and that the plaintiff should recover it, if he was entitled to recover anything. The plaintiff’s specification was : “ Twenty days’ services as lister, and expenses of self and team, $40; making list for said town, $10; two days’ expenses, self and team, at St. Albans before equalizing board, $10,” making $00 in all. At the March meeting in 1883 the town accepted, by vote, the following amendment to the auditors’ report:</p> <p>“Resolved, By the legal voters of the town of Bakersfield, in town meeting assembled, that the auditors’ report, just read and submitted to the town, be, and is hereby amended, by allowing Junius Barnes and William B. Shattuck for services as listers of said town in 1882, 15 days’ work as services each, and the sum of $1.50 per day each, in lieu of the sum the auditors allowed them, making $22.50 for Mr. Barnes, and also $20 for making the list and attending the equalizing board at St. Albans, and $22.50 for Mr. Shat-tuck. ”</p> <p>The town tendered the plaintiff $42.50. It did not appear that the town ever promised to pay the plaintiff for his services as lister; or that it took any action in regard to his compensation when he was elected; or what the town had paid its listers per day, except in 1881, when $2 per day were paid. The town records showed what amount had been paid the listers for a long series of years, — sometimes showing what was paid the whole.board, as in 1875, viz.: $100, and then what was paid each lister, as in 1876, viz.: $13.30. It appeared by these records that the plaintiff was paid for his services as lister in 1879 $32.</p> <p>If it has been the usage of the town for a long series of years to pay its listers for their services, it would thereby be bound to pay the accustomed compensation. Boyden v. Brookline, 8 Yt. 284; Judevine v. Hardwick, 49 Yt. 180. The first list under the law of 1880 was taken in 1881, and the defendant paid its listers $2 per day; and we insist that such action was a fixing of the rate of compensation to be received by the listers. Farnsworth v. Melrose, 122 Mass. 26S.</p> <p>The plaintiff had no legal claim against the town on account of the services rendered, until the town voted to pay him at the annual March meeting in 1883, and then his claim was just the amount so voted and no more. The town having tendered said sum before the commencement of this suit, and the tender having been paid into court, the judgment of the County Court should be affirmed. Boyden v. Brookline, 8 Yt. 284; Judevine v. Hardwick, 49 Yt. 180; Langdonv. Castleton, 30 Yt. 285; Farnsworth v. Melrose, 122 Mass. 268; R. L. ss. 2673, 2728. .</p>

Trespass and trover for a horse. Heard on a referee’s report, September Term, 1881, Royce, Ch. J., presiding. Judgment for the plaintiff.

J., presiding'. Motion to dismiss the appeal overruled. cited on the question of appeal, R. L. ss. 2067, 2278, 2284; Leach v. Leach, 50 Yt. 618; Leach v. Leach, 51 Yt. 440; Kimball v. Kimball, 19 Vt. 579. cited on the question of appeal, Johnson v. Williams, 48 Yt. 565; Hilliard v. McDaniels, 48 Yt. 122; Holmes v. Holmes, 26 Yt. 536; Adams v. Adams, 21 Yt. 162.

Heard, September Term, 1884, Royce, Ch. J., presiding. The order of the court below dismissing the petition was pro forma affirmed.

Trespass on the freehold. Heard on motion to dismiss, December Term, 1884, Walker, J., presiding. Motion granted. The docket entries showed that the suit was entered in court at the December Term, 1883, and that the motion to dismiss was made at the December Term, 1884. It appeared by the writ that both the plaintiff and defendant resided in the County of Bennington.

Case for deceit and breach of warranty of title in the sale of personal property. Plea, general issue. Trial by jury, June Term, 1884, Veazey, J., presiding. After the facts were in, the court pro forma ordered a verdict for the plaintiff.

Action of debt on a recognizance. Heard on demurrer, December Term, 1882, Veazey, J., presiding. Demurrer overruled, and judgment for tlie plaintiff. The petition for a writ of certiorari, mandamus, See., was dated January 23, 1884. The other facts as to this petition are sufficiently stated in the opinion. . The declaration in the original action averred that the State’s attorney made complaint against the defendant Meagher for the illegal sale of intoxicating liquor.

Assumpsit on a note. Heard on demurrer to the defendant’s rejoinder, June Term, 1884, Yeazey, J., presiding. Demurrer overruled, and judgment for the defendant. Pleas, general issue, Statute of Limitations, and infancy.

Replevin for a horse. Plea, general issue. Trial by jury, June Term, 1884, Veazey, J., presiding. Judgment ordered for the defendant. The exceptions stated that the horse was kept and used by Nichols in his work and for driving purposes, and kept by him in the barns and upon the farm of the plaintiff.

Bill in Chancery. Heard on demurrer to the bill, September Term, 1884, Royce, Chancellor. Demurrer overruled.

Chase, deceased. Pleas, that the will was not duly executed, in that the testatrix was of unsound mind; and that it was executed through the undue influence of George Crocker and his wife, Jane Crocker. Trial by jury, May Term, 1883, Taft, J., presiding. Judgment for the defendant. The will in question was executed April 22, 1879. Evidence was given upon all the material issues.

Case to recover for injuries to the plaintiff’s colt. Heard on a referee’s report, December Term, 1884, Taft, J., presiding. Judgment for the plaintiff.

Assumpsit. Heard on a referee’s report, December Term, 1884, Taft, J., presiding. Judgment for the plaintiffs.

General Assumpsit. Plea, general issue. Heard by the court on the report of referees, December Term, 1884, Taet, J., presiding. Judgment for the plaintiff. The fact that the contract was not in writing does not affect the case. Free Press Association v. Nichols, 45 Yt. 18; Hawley v. Moody, 24 Yt. 60C; Mach v. Briggs, 30 Yt. 572. Defendant was a witness under the statute. Kettell v. JR. R. Co. 56 Yt. 106; Poquet v. North Hero, 44 Yt. 91; Cheney v. Pierce, 38 Yt. 515.

<p> Extents. Not Returnable. Parol Evidence. Officer may Adjourn Sale. Fixtures. Delinquent Collector. </p> <p>1. An extent is not returnable; and when an officer sells the property of a delinquent tax collector on an extent, no return is required; and his doings under it — as that the sale was adjourned to another place than the one where it had been advertised — maybe shown by parol. If he makes a return, and his proof is variant from it, it affects its credibility, and not its admissibility.</p> <p>2. Boards in a corn barn, used for a permanent floor, and stone posts, deposited upon the farm for the purpose and with the intention o£ building necessary fences, could not lawfully be sold as personalty by an officer on the extent.</p> <p>3. Trespass de bonis is the proper form of action to recover for the boards and posts; as the claim was, not for breaking and entering, but for talcing and carrying away.</p>

<p>Bill to foreclose a mortgage. Heard, on bill, answer, replication, and a master’s report, December Term, 1884. Takt, Chancellor, decreed a foreclosure.</p> <p>The following facts appeared : On May 2, 1876, one Goodyear conveyed to Sarah A. Farris, wife of Carlos Farris, a certain farm in Ripton,- upon which were two mortgages. On the same day the said Carlos and his wife, executed a third mortgage on the farm to Elias H. Matteson, to secure two promissory notes given to him by the said wife. On the 30th of the same May the said Carlos and Sarah A. Farris deeded the farm to H. E., Wm., E. M., and J. M. Slade, and Jane S. Pride, with covenants of warranty against encumbrances, except the last named mortgage to said Matteson. At this time the orator, Bean, was the owner of a farm in said Ripton, and wished to exchange it for the Farris farm; and the defendant Whittemore desired to purchase the Bean farm. With a view of effecting such trades they conferred with said Slades and Pride, all the parties acting on the supposition that the Farris farm was encumbered only by the Matteson mortgage. It was finally agreed by the three parties, that the said Slades and Pride should deed the Farris farm to Bean; that Bean should deed his own farm to Whittemore; that Whittemore should execute a mortgage back on the Bean farm to ensure the payment of the Matteson mortgage. In accordance with this agreement, in the fall of 1876 the several deeds were executed. The conditions of the Whittemore mortgage were as follows :</p> <p>“ The conditions of this deed are such that if I, the said William Whittemore, or my heirs, executors, or administrators shall, will and truly pay or cause to be paid two certain notes in writing, bearing date May the 2d, 1876, and made payable to Elias H. Matteson or bearer, one for $100 to be paid on or before the 1st day of April, 1877, and the other for $64 to be paid on or before the 1st day of April, 1878, with interest annually according to the terms of the said notes, being the same notes specified in a mortgage deed from Sarah A. Farris et al., to the said Elias H. Matteson, dated May 2, 1876, recorded in book 8, page 416, then this deed to be void and of no effect, otherwise of full force in law.”</p> <p>The master found :</p> <p>“All of said deeds were a part of the same transaction, and wei'e duly executed, delivered, and recorded. Said deed last above described is the mortgage upon which this petition is brought, and was made subject to a prior mortgage to said Slades and Pride, which has since been paid and discharged.</p> <p>“At the December Term, 1876, of this court, the orator Whitcomb, having become the owner of said Lyford and Damon mortgages on said Farris farm (both being prior and superior to said Matteson’s mortgage), proceeded by petition to foreclose the same, making the said Beqn and wife, the said Slades and Pride, and all other persons interested, parties defendant, and thereupon obtained a decree, which, no person redeeming, became absolute on tlié 10th day of December, 1879, and said Beans abandoned said Farris farm, which thereupon passed into the possession of said Whit-comb as sole and absolute owner thereof, and said Beans have since had no interest therein.”</p> <p>The orator became the owner of the Matteson mortgage, February 13, 1877, after inquiring of said Whittemore as to it. Whittemore told him that the notes were secured on the Bean farm and that “ he had got to pay them.”</p> <p>Whitcomb having acquired the Farris farm has all that Matteson was entitled to, upon breach of the condition of his mortgage. Neither Bean nor Whittemore were personally liable to Matteson. If the Farris farm (the only land mortgaged to Matteson) was not sufficient to pay the encumbrances upon it, Matteson had no remedy except against the Farrises. Vroomcm v. Turner, 69 N. Y. 280.</p> <p>The doctrine of subrogation does not apply. Ross, J., in Nat. Bank v. Cushing, 53 Vt. 321.</p> <p>Nor has there been any privity between Bean and Whit-comb to constitute Bean’s title as mortgagee of the Bean farm, a trust in behalf of Whitcomb. Vroomah v. Turner, supra. Matteson’s security was the mortgage of the Farris farm. Whittemore undertook to save that farm from this mortgage.</p> <p>This understanding was with Bean, and for Bean’s benefit, upon a consideration moving from Bean, and was in part fulfilled, while Bean had any title, interest, or concern in the Farris farm. Bean has now no such title, and no interest in the payment of the Matteson debt. Matteson has been paid. If he had not been paid, when foreclosed by Whitcomb, he could not enforce payment from Whittemore nor from Bean.</p> <p>In consideration of a deed of the Bean farm the defendant undertook to pay the Slades and Pride a certain sum, and to assume and pay the Matteson mortgage, and executed his mortgage to secure it. The defendant is estopped by his representations. M. & W. R. R, R. v. Langdoh, 45 Yt. 137; Soper v. French, 47 Yt. 308.</p>

Trespass'and trover for a cow and two steers. Plea, general issue and notice. Trial by jury, December Term, 1884, Taft, J., presiding. Verdict for the plaintiff.

Question of costs. Heard by the court on appeal from the clerk’s taxation, May Term, 1884, Taft, J., presiding. It was an action of replevin; and judgment had been rendered for the plaintiff to recover one cent damages and costs. The clerk allowed the plaintiff $83.75, for sheriff’s fees, as endorsed on the writ, and the defendant appealed.

Book Account to recover overpayment of taxes. Heard on an auditor’s report, May Term, 1884, Taft, J., presiding. Judgment for the defendant. cited R. L. ss. 3060, 3070; Austin v. Berry, 3 Vt. 58. No demand was necessary. Bishop v. Brown, 51 Vt. 330; Stoddard v. Chapin, 15 Vt. 448; Brainerd v. Champlain Tr. Co. 29 Vt. 154. cited R. L. ss. 8000-1; McLaughlin v. Bill, 0 Vt. 20; Warren v. Newfane, 25 Vt. 250; Stevens v. Damon, 29 Vt. 521.

<p>Bill in Chancery. Heard on bill, answer, traverse, and testimony, December Term, 1883, Rowell, Chancellor. Bill dismissed.</p> <p>The bill was dated January 24, 1882. It was alleged, that the complainant, the Ottaquechee Woolen Company, was a corporation, organized October 19, 1874, and existing at Hartland, for the purpose of carrying on the business of manufacturing woolen goods at said Hartland in this State; that, at or about said date, for said purpose, the complainant purchased certain real estate, water power, water rights, and machinery, situated in the village of North Hartland, near the mouth of the Quechee river, at a point, about seventy rods from its junction with the Connecticut rivei'; that immediately after its purchase thé complainant commenced said business and has continued it to the present time; that at said time said river was divided at the head of the falls, or water power, into two branches by an island ledge at the head or crest of the high waterfall, about, one half of the water running over the falls at the northerly side of the ledge, and the'other half over south of the same; that the original purchase included the northerly channel and falls; that said channels were both crossed by a dam; that in the fall of 1875, the dam was changed by the erection of a new dam about 100 feet nearer to the crest of said northerly falls, to bring the water of the mill-pond forward and more directly over the wheel; that in July, 1877, to obtain greater power, the complainant lowered its water wheel two feet, thereby semiring a head of water twenty-six feet; and that said wheel had been run in this position ever since. It was further alleged, that the waters of the Connecticut river were then, with reference to said falls, the same as they had been for, to wit; about twenty years, during which period both streams had continued to flow in their respective channels, without obstructions below said dam, and for many miles down the Connecticut river; that the Quechee falls are about thirty feet in height in a distance as said river runs of about sixty feet, and that the water or cove at the foot of the falls is on or nearly on a level with the surface of the Connecticut river, and is mainly formed by the flowage or back-water of that river; that said water wheel in the usual run of water stands at a height of from thirty to thirty-six inches above the level of said cove and Connecticut river, and that the step of said wheel at the ordinary run of water is about on a level with the cove; “that at all times of high water in the Connecticut river, the wheel, as the same now stands, is entirely submerged by the back-water of the Connecticut river, and by reason thereof the speed and power of the wheel is greatly impeded, and the operation and business of the factory is greatly hindered.</p> <p>“ It was further alleged, that on the 26th day of October, 1875, the said corporation, for the purpose of obtaining greater power for the operation of its factory, purchased and took a deed and the possession of the south branch and falls of the Queeliee river together with the dam, water power, &c.; that in the purchase and equipment of said water powers, mills, &c., it has expended the sum of about 890,000; that the same is worth to said corporation a much larger sum than the amount so expended as aforesaid; that the said company has invested, and uses in the operating of said business there, a large amount of capital aside from the said sum so expended in the purchase of said property as aforesaid, to wit: 8100,000; that the business of the company is very profitable.</p> <p>“It was further alleged, that one Daniel H. Newton, one John C. Newton, and one Moses Newton, of Holyoke, in the State of Massachusetts, are now threatening to build a dam across said Connecticut river at a place called Sumner’s Falls, about two miles below the mouth of the Quechee river, and that they are now preparing to build said dam; that they claim and threaten, that the dam which they are preparing to build there is to be located at or near the crest of said Sumner’s Falls, and is to be built six feet in height.</p> <p>“And complainant alleges, that if the said Newtons are allowed to construct such a dam across said river in place and manner as they threaten, it will greatly injure the complainant’s said water power, factory, and business, by causing the water to set hack and partly or wholly submerge its said water wheel at all times, and thereby continually, permanently, and materially injure and damage the property and business of said company, as the fall of the water between the said cove at said factory and the crest of said Sumner’s Falls is very slight.</p> <p>“And complainant gives said court further to understand and be informed that said Newtons claim to derive their right and authority to erect such dam from and under certain charters granted by the States of Vermont and New Hampshire for the purpose of building locks around said falls and rendering the same and said Connecticut river navigable, — said charter from said State of Vermont being granted in 1794, and the one granted by said State of New Hampshire being granted in 1790.</p> <p>“And your complainant is informed and believes that a canal and locks were made around said falls, and that a dam was built across said river for the purposes of said canal and locks, and that for several years thereafter said canal and locks were used for the purposes of navigation only.</p> <p>“That some forty or fifty years ago said-canal and locks ceased to be used for any purpose whatever.</p> <p>“ Your complainant is further informed and believes that at some time one David Sumner erected a saw-mill at or near said dam, and that he used the same for some few years; and that about twenty-six years ago said dam and sawmill were swept down saifl Connecticut river by the floods, and that thereupon said Sumner abandoned said property and removed said mill to another place farther down said river upon and near the mouth of “ Lull Brook,” so called, within a few rods of said Connecticut river, and ever after continued his said saw-mill business at that point; that after said dam was carried away as aforesaid no measures were taken to rebuild the same by any one, and no claim of right so to do was made by any one so far as your complainant is informed until said Newtons commenced their said threats and preparation as aforesaid.</p> <p>“ That your complainant and its grantors built their said factory and established their said business without any knowledge or belief that any one had or claimed to have the right to build a dam across said Connecticut river at any point where the same would interfere with the complainant’s said water power and business; and it insists that no one has such right.</p> <p>“ Complainant claims and insists, further, that said dam which was originally put across said river at said Sumrifer’s Falls, was put there for the purpose of aiding in the use of said canal and locks, and for no other purpose, and that when said canal and locks ceased to be used the right to keep said dam there ceased also.</p> <p>“ That when said dam was washed away and said Sumner abandoned the same as aforesaid, and before the complainant and its grantors had erected said factory, all right, if any previous thereto had existed, to rebuild or erect a dam at said place, ceased; and that the said Newtons derived no right or authority in any way to build, said dam as they propose, and especially to the injury of your complainant.”</p> <p>The answer of the defendants admitted some of the allegations in the hill, hut denied many others; — denied that the complainant had a right to lower its water wheel; that the waters of the Connecticut had for twenty years prior to the time of placing said wheel or building said factory flowed in its natural channel, without any obstruction or diversion, for many miles down said Connecticut, as alleged in said bill; that the water in the cove at the foot of the said falls is on a level with the surface of the Connecticut river, as alleged, &c.; that said wheel as it now stands, is submerged, as alleged.</p> <p>“Admits that the defendants Moses, John C., and Daniel H., did propose to restore and repair the original dam across the said Connecticut river at said Sunmer’s Falls, and made preparations for that purpose.</p> <p>“ Denies that said dam was to be located at or near the crest of said falls.</p> <p>Says that it was to he located at the place where the dam was formerly maintained.</p> <p>“ Denies that the restoration and repair of said dam will injure the complainant or submerge its wheel as alleged in said hill.</p> <p>“ Denies that the fall of water between said cove and the crest of said Sumner’s Falls is very slight.</p> <p>“ Says that there is several feet fall of said water between said cove and the crest of said Sumner’s Falls.</p> <p>Denies that the complainant or its grantors were ignorant that said dam was formerly kept up and maintained across said Connecticut river, at said Sumner’s Falls, of the height and condition proposed by these defendants, and that the right to restore and repair said dam has always been claimed by the owners of said Sumner’s Falls privilege.</p> <p>“Says, on information and belief, that the g'rantors of said property to said complainant, long before conveying said property to said complainant, knew and acknowledged the right to be unimpaired and in force to have said dam and water privilege maintained and occupied as proposed by these defendants.</p> <p>“Says, on information and belief, that said complainant corporation at the time it was organized and said property purchased as alleged in said bill, well knew that a dam had formerly been maintained across said Connecticut river at said Sumner’s Falls, and that the right to restore, repair and rebuild the same was claimed by the owners thereof.</p> <p>“ Denies that said dam was originally put and maintained across said Connecticut river, at said Sumner’s Falls, for the sole purpose of said canal and locks, as alleged in said bill.</p> <p>“And this defendant, Daniel H. Newton, further answering says, on information and belief, that, prior to the year 1809, one Perez Gallup, of Hartland, Vt., was the owner of certain real estate and water rights, situated in said Hart-land and in Plainfield, N. IT., consisting of a saw-mill and mill yard and water privilege on the Connecticut river.</p> <p>• “ That said Perez deceased on or about the- — day of-, 1809, and one Elihu Luce was duly appointed administrator of the estate.</p> <p>“That on the 10th day of October, 1809, said Luce, administrator, as aforesaid, having obtained license from the Probate Court for the district of Hartford, in which district said Perez Gallup resided at the time of his death, sold and convoyed said property for a valuable consideration to David H. Sumner and James B. Sumner, of said Hartland, by a deed.</p> <p>“ That at the time of the execution of said conveyance there was on said premises a certain saw-mill built by said Perez.</p> <p>“ That desiring further rights said David IT. Sumner and James B. Sumner, on or about the-day of-, 1813, purchased and took from Oliver Gallup, of said Hartland, and Leonard Pulsifer, of Plainfield, N. H., a warranty deed convoying the same premises conveyed to them, said David IT. and James B., by said Luce, administrator, and also other rights and property.</p> <p>“ That said David H. and James B. Sumner entered into and took possession of said premises under said deeds immediately after the execution thereof,'and continued in the occupancy and possession of said land, saw-mill and water privilege, claiming to own the same up to on or about the 26th day of June, 1815, when the said James B. Sumner conveyed to said David H. Sumner all his right, title; interest, and estate in said land, saw-mill and water privilege by deed of that date.</p> <p>“That from and after the execution of said deed, from said James B. to said David H. Sumner, said David H. Sumner continued in the exclusive occupancy and possession of said land, saw-mill, and water privilege, claiming to be the sole owner of the same until some time in the year 1857, when said mill was swept away, and said dam partially carried away by a flood.</p> <p>“That at the time of said conveyance to David H. and J. B. Sumner, there was a dam across said Connecticut river at the place where said defendants propose to place their said dam, which furnished power for said saw-mill; and' the same was kept up and maintained until it was partially carried away by said flood in 1857.”</p> <p>“That the purchase of said Sumners consisted of a parcel of land lying between the canal and the Connecticut river, on the west side of the river; and on said land was a saw-mill, the same built by Perez Gallup, with a flume connecting said mill with the river, by which the water was drawn from said river to supply the power to said mill, and for the sole use of said mill; and said flume was entirely distinct from and independent of the canal.</p> <p>“And this defendant. Daniel H. Newton, avers that during all that time the flowage caused by said dam was the same as it will be if said dam is restored and repaired by the defendants as proposed and intended by them to be done.</p> <p>That David H. Sumner died in 18G7; that, in 1872, Benjamin H. Steele, executor of said Sumner’s will, with the approval of said Sumner's widow, contracted with one Wm. Allen for the sale of said premises; that said Steele died in 1873; that one Holt, administrator de bonis non of said Sumner’s estate, with the widow and heir of said estate, conveyed, some nine years later, said premises to the defendant.</p> <p>“And this defendant, Daniel H. Newton, avers that the defendants bought said premises in good faith, and paid the sums’ of 83,000 and §250 for the purpose of obtaining said water privilege and lands, supposing that by said conveyance they obtained the right to restore and rebuild said dam to the height and condition that it was kept and maintained by said David H. Sumner, as aforesaid, down to the time of said flood, and a right to build a mill thereon.</p> <p>Denies that the water privilege was ever abandoned. Claims by prescription; “and that at the time said defendants bought said premises and paid for them, as aforesaid, they did not know nor did they suppose that the restoring of said dam to the condition aforesaid would, in any way or manner, injure the rights or property of the complainants.</p> <p>“And this defendant further answering saith:</p> <p>“That previous to 1794 one Perez Gallup of said Hart-land was the owner of about eight acres of land in said Hartland on the bank of said Connecticut river, abutting on and extending a long distance above and below the so-called Sumner’s Falls (which falls were then known as the Water Quechee Falls), and also owned a strip of land on the bank of said river, in Plainfield, N. PI., directly opposite to said land in said Hartland, and abutting on and extending above and below said falls, and was also the owner of the bed of said river between said two parcels of land.</p> <p>“ That on or about the-day of-, 1794, the legislature of the State of Vermont granted to said Perez Gallup a charter, constituting and incorporating him and his associates, their successors and such others as should be admitted members of said company, a body politic and corporate, by the name of ‘The Company for Rendering Connecticut River Navigable by Water Quechee Falls,’ for the purpose of locking and continuing locks around said falls, and thus rendering said river navigable.</p> <p>“ That on or about the 15th day of March. 1805, said Perez Gallup admitted as associates with himself, in said corporation, Oliver Gallup, Elias Gallup, David Fuller, Abner Mack, Leonard Pulsifer, and Hugh Campbell, and on the same day allotted and conveyed to them, as such associates, seven-eighths of said land and-grant, reserving to himself one-eighth thereof, — the stock of said corporation being divided into eighty shares.</p> <p>“ That said corporation, having fully organized, proceeded to build and construct a dam across said river at said falls, and a canal and locks on the Vermont shore of said liver, on the land above described, said -canal and locks being wholly within the State of Vermont, and said dam partly within the State of Vermont, and proceeded to conduct their business as contemplated by said charter, and so continued to carry on said business, using said canal, locks, and dam therein, as aforesaid, down to and until on or about the --clay of ——, 1857, when, by a flood, said dam was partly destroyed as aforesaid.</p> <p>“That, as this defendant is informed and believes, the said business of the said corporation was profitable.”</p> <p>That the defendants are the owners of all the shares of said corporation, the said Holt, said Sumner’s widow, and heir conveying them, except one share, in 1883, to them, and that this one share afterwards was purchased by them; that they are possessed of all the rights of the original corporators; that they have the right to restore said dam, &c.; that during all the time from 1808 to 1857, the water set back, on all parties owning above said dam, in the manner as it would be set back if said dam were restored. The defendant John C. Newton testified:</p> <p>“ We found that the restoring of the Sumner dam would give us only about the amount of power we desired to utilize in the manufacture of wood pulp to supply our Holyoke mills.”</p> <p>Vermont charter, in part, granted October 22, 1794:</p> <p>“AN ACT GRANTING TO PEREZ GALLUP AND HIS ASSOCIATES, AND THEIR HEIRS AND ASSIGNS FOREVER, THE EXCLUSIVE PRIVILEGE OF LOCKING WATER QUECHEE FALLS (SO CALLED) ON CONNECTICUT RIVER.</p> <p>“Whereas, Perez Gallup, of Hartland, in the county of Windsor and State of Vermont, has petitioned that the exclusive privilege of locking and continuing locks on Connecticut river by the Falls in Hartland, may be granted to him and his associates, and their heirs and assigns forever. Therefore,</p> <p>“It is hereby enacted by the General Assembly of the State of Vermont that Perez Gallup and his associates have the exclusive privilege of locking and continuing locks on ■ Water Quechee Falls, on Connecticut river, through his own land, in Hartland, within the State of Vermont, under the following limitations and restrictions, viz.: That the said Perez Gallup and his associates shall be liable to forfeit to and for the use of this State all right of locking said falls on condition that they shall not within the term of three years after the first day of November next have made or are making all reasonable exertion in procxiring materials, labor, and other necessaries, to forward the erecting of said locks, and shall not have fully erected and completed the same fit for use within the term of ten years from the said first day of November next; that the toll for conveying loaded boats through said looks shall be eighteen-pence per ton, and nine-pence per ton on the tonnage of all empty boats, and eighteen-pence for every thousand feet of boards and timber, and for every six thousand shingles, etc., which sum shall be and remain the rate of said toll forever, excepting the same shall be diminished by the Supreme Court, as is hereafter provided by this act, which freightage shall be carried through in the order of procession in which they shall arrive at said locks.” * * * *</p> <p>“ It is hereby further enacted, that if the company shall find it necessary to erect a dam on Connecticut river, and thereby flow or otherwise injure any property lying within this State, the owner or owners of such property so injured shall, upoii application to the County Court for the county of Windsor, be entitled to receive from the company aforesaid such compensation as the County Court shall judge just and equitable.” * * * *</p> <p>“ It is hereby further enacted, that the said Perez Gallup, his heirs and assigns, shall at all times cart and carry by said falls all loading whatsoever, and boats in the turn and order of succession as they shall arrive at the respective landings at said falls. And in case he or they shall neglect or refuse so to do on any day (Sundays excepted) after the space of twelve hours from the time he shall be thereunto requested, and the respective turn shall come within that time, he or they shall forfeit and pay to the party so requesting and aggrieved the sum of five pounds lawful money for every twelve hours after the said first twelve hours, from sun-rising to sun-setting, he or they shall so refuse or neglect.” * * * *</p> <p>“And the said Perez Gallup and his associates be and they hereby are made a body politic and corporate by the name of the company for rendering Connecticut river navigable. by Water- Quechee Falls, and they and their successors, and such others as shall be hereafter admitted members of the said company, shall be and continue a body politic and corporate by the same name forever.”</p> <p>New Hampshire charter, in part, granted December 8, 1796 :</p> <p>“And he it further enacted, that the proprietors aforesaid be and they hereby are invested .with the exclusive right of cutting a canal, locking and rendering said falls navigable for boat and rafts, and are like invested with every power and every privilege necessary to carry the same into effect, provided that nothing herein contained shall be construed to authorize said proprietors to raise such obstructions as shall prevent the passage of masts and loose mill logs down the river as heretofore.”</p> <p>The legislature has no power to authorize the damming of rivers for mill purposes. Tyler v. Beacher, 44 Yt. 648.</p> <p>The exercise of the right of eminent domain hv corporations, under their charters is limited to the object and purpose of their grants, and can only he for some public purpose or use. Cooley Con. Lim. s. 531; R. R. Co.'s Appeal, 79 Pa. St. 257; Elclridge v. Smith., 34 Yt. 484; Allen v. Jay, 60 Me. 124; 37 Wis. 401). The legislative cannot make that a public purpose wliicli is not so in fact. Cooley Con. Lim. s. 618,74.; Freeland v. Hastings, 10 Allen, 570; R. R. Co. y. McFarland, 43 N. J. 605-20.</p> <p>The foregoing proposition is predicated upon the assumption that the objects and purposes for which the legislature granted the right to lock the falls long ago ceased to exist.</p> <p>The object and purpose* of the charters to the canal company having ceased, the powers and rights conferred by the charters also-ceased. Stewart's Appeal, 56 Pa. St. 413.</p> <p>As a proposition of law, then, we claim that the right granted in the exercise of eminent domain on the part of the State, as against the riparian owners above, under the facts of this case, was only an easement, conditioned and dependent upon the necessity of a dam for the purpose and service of the locks; and upon the cessation or termination of the objects and purposes which were the desideratum on the part of the State, the riparian owners above were relieved of the servitude by which they had theretofore been burdened. People v. White, 11 Barb. 26; 2 Hill. Real Prop, p. 109; Tyler v. Beacher, supra; Cooley Con. Lim. 656.</p> <p>To make and maintain a dam was not the purpose for which the charter was granted. Only to provide for a contingency that, upon experiment, might be found to exist, viz.: the necessity for a dam for the purpose of rendering the locks usable, was the provision as to a dam put into the charter. Ho charter would have been granted for making' a dam, as an absolute and independent franchise.</p> <p>If it should be assumed that the charter creating the corporation, and giving the exclusive right of locking, is still in force, any interested party may contest the right of the company to make or maintain a dam, without questioning the right of existence. He may do it in his own name, and without the name of the State, or the writ of scire facias or quo warranto.</p> <p>Prescriptive right. The use of the water must be adverse. Wash. Ease. 131; High Inj. 799; Godd. Ease. 160; Ang. Wat. 210 ; Corning v. Troy Iron & Nail Factory, 40 N. Y. 191 ; Peck, J., in Perrin v. Garfield, 37 Vt. 310; Brace v. Gale, 10 Allen, 441; Carlisle v. Cooper, 19 N. J. 256 ; Pratt v. Lamson, 2 Allen, 275. No easement can be acquired by prescription, if the servient owner has been incapable from any cause of resisting the user. Godd. Ease. 160 ; Sapp v. R. B. Co. 51 Md. 115 ; Rockdale Canal Co. v. Radcliff, 83 E. C. L. 287 ; Canal Co. v. Canal Co. 1 Eng. & Ir. App. 254. An easement cannot be established by user or grant over the property of a corporation held under its charter for public purposes. Shield v. Arnold, 4 N. J. Ch. 324; 4 H. & N. 8 ; 11. R. Co. v. McFarlan, 43 N. J. L. 605 ; Gould Waters, 225, 331; Godd. Ease. 159; Wash. Ease. 120 ; Watkins v. Peck, 13 N. H. 360. The use of the water was the possession of the canal companv under its charter. Raym. Ld. 329.</p> <p>Where an easement is used under a grant or a reservation in a deed, but in a manner somewhat different from the terms of the grant or reservation, it will be deemed to have been enjoyed under the grant or reservation and not adversely, and that no prescriptive right would accrue from such user. Smith v. Higbee, 12 Yt. 113; Ford v. Flint., 40 Yt. 382; Atkins v. Boardmcm, 2 Met. 437-65; Wash. Ease. ss. 4, 38, p. 95; 3G Yt. 503. The rights of the mill owners ceased when the canal company abandoned the dam for use for the public purpose. High Inj. s. 800; 40 N. Y. supra. There was an abandonment. During twenty-four or twenty-five years there has been no act on the part of the corporation indicating an intention to rebuild the dam. Corning v. Could, 16 Wend. 531; Ang. Wat. (7th ed.) s. 496; Guild. Ease. 462; 3 Kent Com. 448; Carney v. Andrews, 12-3 Mass. 155; 6 Met. 433; Moore v. Bawson, 3 B. & C. 332; Taylor v. Hampton, 10 E. C. L. 156; 3 McCord, 96; 23 Pick. 216; 10 Pick. 210. The defendants are estopped to rebuild the dam. 2 Smith Lead. Cas. (5th Am. ed.) 642; Ang. Wat. ss. 328, 412; Picard v. Sears. 6 A. & E. 469; Brown v. Brown, 30 N. Y. 520; Totvn v. Needham, 3 Paige, 545; Cobb v. Smith, 1C Wis. 692; Arnold v. Gorman, 50 Pa. St. 50, 361; Farrar v. Cooper, 34 Me. 399; Woodbury v. Short, 17 Yt. 387; Ford v. Whitlock, 27 Vt. 265. An injunction is the proper remedy. High Inj. s. 794; 3 Sumner, 90, 189, 200; 4 Mason, 397; Ang. Wat. s. 444 ; 32 Yt. 423.</p> <p>Non-user or mis-user may he cause of forfeiture; but until the forfeiture is judicially declared the charter is in full force; and such forfeiture can only be declared in a suit brought by the State creating the corporation so that the corporation may have an opportunity to answer. Nor can any stranger to the compact take advantage of any nonuser or mis-user of a franchise for it is a matter entirely between the State and the corporation.</p> <p>A forfeiture cannot be enforced against a corporation collaterally or incidentally, or in any other mode than by a direct proceeding. Ang. & A. Corp. 777; 2 Kent Com. 312; Brandon Iron Co. v. Gleason, 24 Vt. 228; Heard v. Talbot, 7 Gray, 113; Canal Co. v. II. B. Co. 4 Gill & Johns. 107; Regents of Univ. of Maryland v. Williams, 9 Gill & Johns. 3G5; Bohononv. Bimms, 31 Miss. 355; Harrison v. R. R. Co. 9 Mon. (B.) 470; Webb v. Moler, 8 Ohio, 549; R. R. Co. v. Long Branch Com’rs, 39 N. J. L. 28. See also Bank v. Bank, 10 Gill & Johns. 35G; Brookville T. Co. v. McCarty, 8 Ind. 392; 50 Ala. 332; Boston Glass Man'fg Co. v. Locke, 24 Pick. 40; Thompson v. R. R. Co. 3 Sand. Ch. G2G; R. R, Co. v. Johnson, 49 Mich. 148; Dyer v. Walker, 40 Pa.1 St. 157; 15 N. H. 1G2; Bank v. Johnson, 8 Wend. G45; People v. Manhattan Co. 9 Wend. 351; Mosley v. Barrote, 52 Tex. 39G; 20 Conn. 557; Johnson v. Hnntley, 1G Ohio, 97; R. R. Co. v. Bailey, 24 Vt. 47G; 7 Conn. 29; GG Me. 398; 15N. H 1GG. A corporation is not dissolved by one or two individuals owning all the shares and the franchise. Ang. & A. Corp. s. 773; Russell v. McClellan, 14 Pick. 03; Mining Co. v. Bank, 44 Vt. 489; Man'fg Co. v. White,. 42 Ga. 148; Spencer v. Champion, 9 Conn. 533; Wilde v. Jenkins, 4 Paige, 481; 40 Pa. St. 157. The Court of Chancery has no jurisdiction to find or enforce a forfeiture. Enfield Toll Bridge Co. v. Conn. River Co. 7 Conn. 29; Hamilton v. R. R. Co. 1 Md. Ch. 107; Bayliss v. Orne, 1 Free. Ch. (Miss.) 1G1; Ve ¡plank v.- Ins. Co. 1 Edw. 84; Livingston v. Thompson, 4 Johns.' Ch. 415; Vt. Copper Mining v. Ormsby, 47 Vt. 709; Story Eq. Juris. 1319; Duncklee v. Adams, 20 Vt. 415; 8 Mon. (B.) 142.</p> <p>Abandonment is a question of intent. Ang. Wat. 490; Wash. Ease. G39, 049; 121 Mass. 3; Cong. Society v. Stark, 34 Vt. 254; Patchin v. Stroud, 28 Vt. 394; Perkins v. Blood, 30 Vt. 273; Godd. Ease. 401; Gould Waters, 348.</p> <p>The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption. Wash. Ease. 645; Ward v. Ward, 7 Exch. 838; Eddy v. St. Mars, 53 Yt. 462; Godd. Ease. 461; 8 El. &B1. 461-91; 1 Add. Tor. 176, 197, n.; Townsend v. McDonald, 2 Kern. 381; Pillsbury v. Moore 44 Me. 155; Given v. Field, 102 Mass. 90; Gale & Wh. Ease. 380; 3 Kent Com. 449; Williams v. Nelson, 23 Pick. 147. There must be acts showing an intention to abandon. 19 N. J. Eq. 141; 44 Me. 154; Ang. Wat. 240, 252; Wash. Ease. 639, 644; 3 Kent Com. 448. The acts and sayings of the defendants’ grantors are evidence on question of abandonment. Noble v. Sylvester, 42 Yt. 146; Perkins v. Blood, 36 Vt. 273; 1 Green! Ev. s. 108.</p> <p>The right to flow the land maybe acquired by adverse enjoyment. Ang. Wat. 372; Wash. Ease.; Perrin v. Garfield, 37 Yt. 304; Williams v. Nelson, 23 Pick. 141; Gould Waters, 311; Godd. Ease. 465; 36 Yt. 503; 42 Yt. 712; Borden v. Vincent, 24 Pick. 30!</p> <p>The right of the canal company to flow land by virtue of its charter and the right of Sumner to flow the same land by prescription might exist together — one man may have a right by grant and another by prescription to flow the same laud for different purposes. Davis v. Brigham, 29 Me.; Wash. Ease. 139.</p>

<p>Trover for hay and oats. Plea, not guilty. Trial by jury, February Term, 1884, Royce, Oh. J., presiding. Verdict for the plaintiff.</p> <p>It appeared, that the plaintiff owned the farm on which the hay and oats were raised; that they were sold by the defendant on execution issued against her brother, who occupied the said farm; that she also owned all the personal property on the farm; that she paid the expense of running said farm; that the plaintiff testified on cross-examination, that her brother had permission from her to sell the products on the farm, and take and use the money to pay for labor done on the farm, store bills, etc. It also appeared that the brother told defendant that the hay was his, and defendant so supposed.</p> <p>The defendant’s testimony tended to show that the plaintiff was estopped by her conduct from claiming title to the property. Soper v. Frank, 47 Vt. 358. The case should have been submitted to the jury with instructions as to what constitutes an equitable estoppel. Lewis v. Brainerd, 53 Vt. 519; Palmer v. St. Albans, 56 Vt. 519.</p> <p>The motion was properly overruled. Bicharás v. Davison, 1 Aik. 215; Danforth v. Streeter, 28 Yt. 494; Cole v. Goodall, 39 Yt. 400; Mudget v. Johnson, 42 Yt. 423.</p>

Audita Querela. Heard, April Term, 1885, Powers, J., presiding. The court ruled, pro forma, that the title to land was not concerned in the suit before the justice of the peace, who rendered the judgment sought to be set aside by this proceeding, and dismissed the writ.

Trover. Heard, on a referee’s report, December Term, 1883, Powers, J., presiding. Judgment for the defendant. The action was for the conversion of one horse and four cows; and the defendant justified as sheriff, having sold the property on an execution in favor of A. D. Robbins against Riley Earl, a son of the plaintiff.

Case, in two counts, for erecting and maintaining a dam. Heard on the report of a referee, December Term, 1883, Rowell, J., presiding. Judgment for the plaintiff. The dam in question is in Topsham.

Bill in chancery to correct a deed. Heard on plea in bar to the bill, December Term, 1883, Rowell, Chancellor. Plea allowed, and bill dismissed.

Assumpsit to recover upon a contract of life insurance, issued by the defendant upon the life of Sarah M. Currier for the benefit of the plaintiff. Plea, the general issue, tender, and offset. Trial by jury, September Term, 1883, Redfield, J., presiding. Verdict ordered for the plaintiff. The policy was dated November 14, 1805. Sarah M. was the wife of the plaintiff, and her death occurred February 5, 1882.

General Assumpsit to recover usury. Pleas in bar and offset. Heard by the court, March Term, 1884, Powers, J., presiding. Judgment for the plaintiff to recover $153.72,— the amount of the usuiy; and that his attorneys have alien on the damages and costs for their fees. See Jacob & Guy Smith v. David McDonald, 50 Yt. 305, where is reported the suit in equity to compel this offset.

Trover for the conversion of poultry. Heard by the court, March Term, 1884, Powers, J., presiding. Judgment for the plaintiff.

Bill in Chancery. Heard on bill, answer, traverse, master’s report and exceptions thereto, March Term, 1884. Powers, Chancellor, rendered a decree for the orator according to the prayer of the bill. The defendant Lyford was a deputy sheriff, and as such sold the property in question, — butter-tub machinery, &c.,— on an execution issued against the orator.

Audita Querela. Heard on demurrer to the complaint, March Term, 1885, Powers, J., presiding. Demurrer overruled.

Bill in equity praying that the defendant be restrained from collecting a promissory note. Heard on a master’s report, March Term, 1884, Powers, Chancellor. Bill dismissed. It appeared, that the defendant was the owner of a $200 note, signed by one Orson Kimball as principal and the orators as sureties.

Assumpsit upon a policy of insurance issued to the plaintiff, Katharina M. Eindeisen, wife of said John G. Eindeisen. Heard on a referee’s report, April Term, 1884, Taft, J., presiding. Judgment for the plaintiff. The defendant’s counsel claimed, with other claimed defects in the proof of loss, sufficiently stated in the opinion, that the magistrate’s certificate attached to the proof was not in accordance with the conditions of the policy or the printed form of proof.

Trespass. Plea, general issue with notice. Trial by jury, September Term, 1881, Taft, J., presiding. Verdict and judgment for the plaintiff. To an unprofessional witness, introduced by the plaintiffs, their attorney put this question: “How did Mrs. Knight appear after the affray with the defendant? ” This was objected to by the defendant, but the objection was overruled, and the witness answered that she seemed to be in great pain in her head and back.

<p>Assumpsit. Plea, general issue. Trial by jury, September Term, 1884, Taft, J., presiding. Judgment for the plaintiff.</p>

Petition for highway commissioners. Heard on demurrer to the plaintiff’s replication to the defendant’s plea. Demurrer overruled. The petition prayed for the appointment of commissioners to inquire into the necessity of certain highways, which it was alleged the selectmen of the defendant town had laid out across the petitioner’s land, without giving notice or paying damages.

Information charging the respondent with the illegal sale of intoxicating liquor. Trial by jury, April Term, 1884, Taft, J., presiding. Yerdict, guilty of two offenses. It was error to allow the amendment. R. L. ss. 3848, 3857, 3865; Bro. Leg. Max. 421; 7 Cush. 53, 89; McKay v. R. R. Co. 2 Mich. 138; Sedg. Stat. Law, 237, 247; State v. Murphy, 55 Yt. 547. It was incumbent on the State to prove that the respondent did not have authority to sell.

Bill in Chancery. Heard on a master’s report and exceptions thereto, December Term, 1884. Ross, Chancellor, decreed, “that the defendant, Freeman Bixby, is entitled to receive 59-479 of the sum of $4,000 and interest on the same since the 16th day of October, A. D. 1877, being the. sum of $703.56, and his costs taxed and allowed at the sum of $148.09.

Replevin for saw logs. Heard on referee’s report, June Term, 1884, Royce, Cli. J., presiding. Judgment for the defendant. The case is stated in the opinion. , Vermont’s fraud-in-law doctrine has one exception — -sales of movable property “cumbrous in character” and “difficult of removal,” or when “removal is impracticable.” Fitch v. Burk, 38 Vt. 683; Sterling v. Baldwin, 42.

Petition of the town of Weybridge under No. 16 of the Acts of 1882. Heard on the report of commissioners, and exceptions thereto, December Term, 1884, Yeazey, J., presiding. Judgment sustaining the exceptions, and recommitting the report to the commissioners.

Complaint for assault and battery. Heard on motion to dismiss, December Term, 1884, Veazey, J., presiding. Motion denied. It was charged in the indictment, that “the said Nellie Barrows, with force and arms, in and upon one * * * * an assault did make, and her the said * * * * did then and there heat, bruise, &c., contrary to the form, force and effect of the statute,” &c. The jurisdiction of a justice of the peace is only statutory.

<p>Prosecution for the illegal sale of intoxicating liquor. Appeal from the decision of a justice of the peace. Heard on a motion to dismiss, December Term, 1884, Veazey, J., presiding. Motion denied.</p> <p>The exceptions were as follows:</p> <p>“ This is an appeal from a justice of the peace in a prosecution for selling intoxicating liquor. The respondents moved to dismiss the cause. The files are all referred to as a part hereof. The court denied the motion, to which the respondent excepted; exceptions allowed, and cause passed to the Supreme Court under R. L. s. 1390.”</p> <p>The motion was: “The respondents * * * * move that said complaint be dismissed for defects apparent upon the face of the complaint.”</p> <p>Copy of appeal, in part:</p> <p>“Be it remembered, that at a justice court holden at, &c., on, &c., before, &c., one, &c., having been arrested without warrant in a state of intoxication, was brought for disclosure where he obtained the liquor with which he became intoxicated, and the said Maxim Cutter having been duly sworn, disclosed and said that he obtained the liquor whereby such intoxication was produced from Fred Brunelle and Frank Nisun, * * * * and that the said Fred Brunelle and Prank Nisun furnished the same to him. And it being adjudged by said justice, that the furnishing of the said intoxicating liquor to the said Maxim Cutter, by the said Fred Brunelle and Frank Nisun, was an offense against the provisions of section 3816 of Revised Laws, contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the State, the said justice thereupon issued his warrant, as by law directed, and caused the said * * * * so furnishing the said intoxicating liquor, to be brought before him on the * * * * to answer to the' charge so preferred against them, and Justus Cobb, grand juror for * * * * was summoned to prosecute said cause, according to the statute in such case made and provided.</p> <p>“The said Fred Brunelle and Frank Nisun, being put to answer said charge, pleaded guilty. Whereupon it is adjudged by the said justice that the said respondents, Fred Brunelle and Frank Nisun, are guilty as charged by the disclosure of said Maxim Cutter, of one offense, first conviction, and the said Fred Brunelle and Frank Nisun are sentenced to pay a fine of ten dollars to the treasurer of the State of Vermont, and to stand committed until sentence is complied with.”</p> <p>The justice clearly had no authority or jurisdiction to issue such a warrant. It is only when the party is found in such a state of intoxication as to disturb the public or domestic peace and tranquillity, that the justice is authorized to issue the warrant set forth in s. 3864. The appeal recites that, “ One Maxim Cutter having been arrested without warrant in a state of intoxication.” If the arrest itself was regular, the complaint of a proper informing officer could not be dispensed with prior to the issuing of a warrant by the justice. In re Emma Pierce, 46 Vt. 374.</p> <p>It does not appear from the appeal upon what process the respondents are in court, except that it is some process issued, “as by law directed.” It is impossible to plead to such a process. If the respondents plead guilty, what is the allegation- in the process which they admit? And what is to be the-penalty? If they plead not guilty, upon what allegation is-the issue joined'?</p> <p>How is it possible to try a respondent for crime or misdemeanor without definite allegations of his guilt? If it is impossible to plead in- such proceedings-, they should be dismissed.</p> <p>The motion should not be entertained, for the reason that it does not state- specifically the ground of objection. Whar. Cr. PL (8th ed.) 379; 1 B-ish. Cr. Plroc. (3d ed.) 772; Barnett v. Emery, 43 Yt. 178. The record shows enough to give the justice jurisdiction. E. L. s. 3864. No complaint was necessary. State v. Conlin, 27 Yt. 318; In re Dougherty, 27 Yt. 325; State v. Hoffman, 46 Yt. 176. The record sufficiently shows upon what process the respondents are- in court, viz.: the charge preferred against them by the disclosure- of the intoxicated person. They are to plead in the same- manner as if complained against by an informing officer; and are to be prosecuted in the same manner except as to the number of offenses provable. R. L. S; 3805-16; State v. Kelley, 47 Yt. 294.</p>

Trespass on the freehold. Plea, the general issue. Trial by jury, December Term, 1884, Veazey, J., presiding. Verdict for the plaintiff. The controversy was as to the title and ownership of about eight acres of swamp timber land. The defendant admitted the cutting and removal of the trees on the most of the land; but claimed it was his land. Both parties put in evidence title deeds, showing title to a piece of land back through conveyances to a common owner, one Haight.

Assumpsit in common counts for usury. Trial by jury, June Term, 1884, Royce, Ch. J., presiding. Judgment for plaintiff to recover $471.67. The plaintiff introduced in evidence a promissory note for the sum of $5,000 executed by him to the defendant, dated September 23, 1875, payable in three years from date with annual interest. The defendant admitted $300 of $5,000 note was usury, and paid into court enough to cover this, the interest, and cost.

Davenport. Heard by the court, September Term, 1883, Rowell, J., presiding. Judgment for the claimant for the sum of $5,407.74. The appeal was taken by Chas.

Assumpsit. Heard on the report of a referee, September Term, 1884, Rowell, J., presiding. Judgment for the plaintiff to recover only $3.78, and trustees discharged. Exceptions by the plaintiff.

<p>Motion by insolvent debtor to have cause decided at a former term brought forward and heard.</p> <p>A discharge is not granted if the debtor “ has admitted a false or fictitious debt against his estate.” R. L. s. 1853. Cannot he be heard in any court where the case is pending, to show that the debt was false, See. ? The debtor is subject always to examination; and the judges of the Supreme Court shall make rules for regulating the practice and conducting the business, &c. R. L. ss. 1789, 1839; Shaw, Ch. J., in. 3 Gray, 115; Chamberlain v. Hall, 3 Gray, 250; Mass. Ins. Law, s. 85. Under the probate law, a creditor, legatee, or heir, would have a right to prosecute an appeal. R. L. s. 2275.</p> <p>It is not for the assignee, upon his own mere and independent volition, after accepting our aid and cooperation in the manner and to the extent shown here, after such cooperation rendered under the circumstances of this case, causing full, implicit, undoubting expectations and reliance, and rendered for the very purpose of having the case fully heard and determined, now to back out and leave us in the lurch — and that merely upon the most technical ground that in name he is the excepting party.</p> <p>Court will hold the case for hearing just as it is — treating the debtor upon the record, as he was in fact, as the excepting party.</p> <p>The assignee has plenary powers, under the statute, for doing everything in relation to the estate, which the debtor might have done when solvent. It cannot be that the statute, using such unequivocal language, intended to give the assignee and debtor concurrent control of the estate, and all its interests.</p> <p>The assignee may redeem mortgages, liens, &c., and sell the property. R. L. s. 1821.</p> <p>He may, under the direction of the judge, submit a controversy to arbitration, and “ compound and settle such controversy, by agreement with the other party, and as is most for the interest of the estate.” R. L. s. 1825.</p> <p>If he can do this, he certainly can submit to a judgment for the smallest amount named in a referee’s report, made after two long, tedious hearings before commissioners and referee, with elaborate arguments, and a full and laborious investigation by the referee.</p> <p>Even if the debtor has an interest in the result, as affecting his right to a discharge, that can give him no right to appear in a suit as a party litigant, and even control it, against the authority of the assignee. Barstow v. Adams, 2 Day, 70; 2 Bl. Com. 485; Richards v. Merriam, 65 Mass. 582; Lafoimtain v. Savings Bank, 56 Yt. 332; 26 Ark. 44; 3 W. & M. 38; 4 B. R. 446.</p>

Assumpsit. Pleas, general issue, offset, and accord and satisfaction. Trial by jury, September Term, 1881, Tapt, J., presiding. Verdict for the defendant.

Bill in Chancery. Heard on bill, answer, replication, and master’s report. September Term, 1881. Yeazey, Chancellor, “ decreed that the orator was only entitled to a passage way to and from the slate quarry, over and through the defendants’ premises to the highway on the west, by paying fair compensation therefor, as and at the rate stipulated in the deed of Morse to Minogue. “On the hearing, the defendants conceded that the orator was entitled to such way by paying therefor.

<p>It is agreed, that both plaintiff and defendant are now, and were at the time of the commencement of this suit, residents of the town of Plattsburgh, in the State of New Y ork, and that the contract upon which this suit is brought, as well as the contract upon which it is sought to charge this trustee, was made in the State of New York. The trustee is a body corporate, chartered and existing under and by virtue of the laws of the State of New York, under the name of the “ President, Managers and Company of the Delaware and Hudson Canal Company,” and having its principal office and place of business in the City of New York; and at the time of the commencement of this suit and for a long time prior thereto had been operating, as lessee, the Rensselaer and Saratoga Railroad, extending from Troy, in the State of New York, through Whitehall in said State, to the division line between the State of Vermont and the State of New York, connecting at that line with the Rutland and Whitehall Railroad, which railroad the said trustee also operated under a certain lease; which two railroads the trustee, as lessee thereof, runs and operates as a continuous line from Troy to Rutland. And said trustee, as lessee, also runs and operates a certain railroad known as the Salem and Rutland Railroad, extending from said Rutland to Eagle Bridge, in the State of New York. And the trustee also runs and operates the New York and Canada Railroad, extending from Whitehall aforesaid to and through the town of Plattsburgh, in said State of New York, running all the way in the State of New York, but connecting at said Whitehall with the said railroads forming said line from Troy to Rutland, operated as aforesaid by said trustee.</p> <p>Said sum of $35.50, for which said trustee was held chargeable, was due the principal defendant as wages for services rendered in the State of New York upon said New York and Canada Railroad, extending from Whitehall to Plattsburgh, under a contract of employment made in that State, and was due and payable in the State of New York..</p>

<p>Action on the case against the directors of the St. Albans Trust Company. Heard by the court on demurrer to the declaration, September Term, 1884, Royce, Ch. J., presiding. Demurrer sustained pro forma; and declaration adjudged insufficient.</p> <p>For the facts showing the condition of the St. Albans Trust Company, see William G. Green & Wife v. The St. Albans Trust Co., ante, 340: Deivey v. Same, ante, 332, and Same v. Same, 56 Yt. 476. The declaration averred, with other facts, that, under an act of the legislature, approved November 19, 1868, the subscribers to the capital stock, their successors and assigns, were duly constituted a corporation and body politic, by the name of the National Trust Com-, panv, “to be established in said town of St. Albans, with certain powers, privileges, duties, liabilities, and limitations in said act mentioned; and in and by said act of incorporation the said corporation, among other' things, was authorized and empowered to receive moneys on deposit or in trust; to accept and execute all such trusts of every description not inconsistent with the laws of the State of Vermont, as might be committed to them by any person or persons, whomsoever, or by any corporation, or by order of the Supreme Court or Probate Court, or other court of record of said State; and to accept deposits where public officers or municipal or private corporations are authorized or required by law to deposit money in bank; and providing also for the creation of a capital stock of $100,000; and declaring that all the business of said corporation should be managed by seven directors, to be (after the first election) annually elected in the manner therein provided, who should elect from their number a president, vice-president, and such other officers as they might deem necessary; and further providing, among other things, that when no special direction or agreement was made, by those making deposits or leaving trust property with said corporation, as to the character of the investment 'thereof to be made, such investments should be made by said corporation only in the purchase of certain stocks and bonds therein named, or in loans secured by some of said bonds, or by a first mortgage on unencumbered real estate in the State of Vermont, at one half its value exclusive of the buildings thereon, or secured by bank stock at two thirds its value; and further providing that no loan should be made directly or indirectly to any director, officer, or employe of said corporation.</p> <p>“ And further providing and enacting, among other things, in section seven of said act, that ‘ said directors shall be liable to the creditors and stockholders of said corporation for any loss which may be sustained in consequence of any incompetency, unfaithfulness, or remissness in the discharge of their official duties,hereinbefore or hereinafter [in said act] provided; and any number of said directors may be sued in the same action by any claimant under these provisions,’ as by said act will more fully appear; and under said act the capital stock was duly subscribed for, and said corporation was duly organized and established, to wit: on the 14th day of June, A. D. 1869, and continued doing business as such corporation until the 24th day of November, 1874, when, by another act of the legislature, entitled ‘ An Act to change the name of the National Trust Company,’ approved at that date, it was enacted that said corporation should thereafter be known and called the St. Albans Trust Company, as by said last named act will appear; and said corporation kept up its organization and continued to do business at St. Al-bans aforesaid, until on or about the 7th day of August, A. D. 1883, when said corporation failed and was unable to pay its depositors, and thereafter, to wit: on the 23d day of August, 1883, a receiver was appointed in accordance with the statute in such cases made and provided.</p> <p>“And the plaintiff avers that the defendants were, at the time of making the several deposits, hereafter set forth by the said plaintiff, in said trust company, and during all that time and for a long time thereafter continued to be directors of said St. Albans Trust Company, duly elected, qualified, and acting as such, to wit: at St. Albans aforesaid to wit: on the 7th day of August, A. D. 1883.</p> <p>“ And the plaintiff further avers, that on, to wit: the 1st day of July, A. D. 1883, and since that date, prior to the commencement of said suit, he deposited a large sum of money in said St. Albans Trust Company, to wit: the sum of $800, and then and there, to wit: on the 6th day of August, A. D. 1883, became and was a creditor of and depositor in said corporation to the amount of, to wit: $800.</p> <p>“ And the plaintiff further avers, that at the time of making said deposits as aforesaid, no special direction or agreement was made by him as to the character of the investment to be made, and it then and there became and was the duty of said directors of said corporation to invest the same in accordance with the provisions of said act of incorporation.</p> <p>“And the plaintiff further avers, that on divers other days and times, between the 1st day of January, 1874, and the 1st day of August, 1883, large sums of money have been deposited in said St. Albans Trust Company, and been accepted by the same in respect to which no special direction or agreement was made by the depositors as to the character of the investments, to wit: $1,000,000.</p> <p>“ And the plaintiff further avers, that the said defendants as such directors of the St. Albans Trust Company as aforesaid, to wit: on the 1st day of January, 1883, and during all the time they have held the office of directors as aforesaid, and acted as such, have been incompetent, unfaithful, and remiss in the discharge of their official duties prescribed by said act of incorporation, and have, during all that time, as-such directors as aforesaid, loaned and suffered to be loaned large sums of money so deposited in the St. Albans Trust Company as aforesaid, and in respect to which no special direction or agreement was made by the depositors as to the character of the investment to be made, to wit: ther sum of $1,000,000, upon other and different securities from those mentioned in said act of incorporation and permitted by the amendment thereto; and have accepted and received as security for loans, bank stock, the value of which was less than two thirds the amount loaned, and for which it was pledged as security; and have also made loans and accepted and received as security real estate, the value of which, exclusive of buildings, was less than half the amount for which it was made to secure; and have also made loans upon personal security, to wit: on the 1st day of January, A. D. 1883, and on divers other days and times, at St. Al-bans aforesaid, to one Lawrence Brainerd, then and there a director and president of said St. Albans Trust Company, upon certain notes signed Norwood Lumber Company, of which company the said Lawrence Brainerd was then and there the principal partner to a large amount, to wit: the sum of $500,000, in violation of the provisions of said act of incorporation and against the form of said statute, by reason of which incapacity, unfaithfulness, and remissness of the said defendants in their official duties as directors of said St. Albans Trust Company aforesaid, a large amount of money so deposited as aforesaid, in said trust company as aforesaid, to wit: the sum of $500,000 has been lost, and the said St. Albans Trust Company has become and is insolvent and unable to pay the amount or any part thereof so due and owing to the plaintiff, and the same has become and is wholly lost to the plaintiff.</p> <p>“And the plaintiff further avers, that on the 7th day of August, 1883, he went to the banking house of said corporation, in St. Albans aforesaid, during business hours, and the same was shut up and closed against the plaintiff, and the said corporation then and there ceased to do business, and its assets are now in the hands of the receiver.”</p> <p>The act incorporating the St. Albans Trust Company, of which the defendants were directors, gives the creditors a direct reftiedy against the directors for any loss sustained through their incompetency, unfaithfulness, or remissness in the discharge of official duty. Laws of 1868, No. 157, s. 7. An action on the case is the appropriate remedy. Buell v. Warner, 33 Yt. 570; Bank v. Sprague, 43 Yt. 502; 24 Wend. 473. A bill in equity will not lie. Bassett v. Hotel Go. 47 Yt. 313. Under the statute, the liability of the defendants is a direct liability to every creditor attaching, whenever loss shall occur by reason of official unfaithfulness. Barret, J., in Buell v. Warner, supra. The liability is not an asset of the company. Hargraves v. Chambers, 30 Ga. 606. It is an original liability, similar to that of partners. Thomp. Liab. St. s. 342.</p> <p>It is unnecessary to first proceed against the corporation. Ross, J., in Bassett v. Hotel Go. supra.</p> <p>The company is insolvent and in the hands of a receiver. No action could be maintained; and were such an action necessary, insolvency is an excuse for not proceeding in the first instance against the company. Paine v. Stewart, 33 Conn. 516; Thomp. Liab. St. s. 321; Bull v. Bliss, 30 Yt. 127; Woodstock Bank v. Downer, 27 Yt. 539; Shellingtony. How-land, 53 N. Y. 371; 3 McLean, 293. The fact that this bank is in the hands of a receiver is no defence. Thomp. Liab. St. s. 473.</p> <p>It is insisted that no action at law can be maintained by a creditor upon this statute, and that the action given is a suit in equity. The statute does not prescribe the kind of action given, and the nature of the case shows that a suit in equity is the only effectual remedy.</p> <p>It is evident that the loss for which the directors are made liable, is a loss sustained by the creditor or stockholder, and that the liability is for such loss only. Such loss can only occur through the instrumentality of a loss sustained by the company by reason of the official delinquencies mentioned. So far as the remaining assets of the company are sufficient to pay the creditors there is no loss sustained by them, and consequently no liability of the directors to them. The loss for which the directors are made liable to creditors is tbfe balance of the deposits remaining unpaid after applying ratably upon them the whole assets of the company. The liability is not for the creditor’s debt, but for such loss as he may sustain in consequence of certain acts of the directors.</p> <p>That a suit in equity is the exclusive remedy in cases of this kind is sustained by excellent authority. Thomp. Liab. Off. p. 45G; Hornor v. Henning, 93 U. S. 229; Buchanan v. Barlow, 3 Bradw. (111.) 191; Same v. Loto, lb. 202; Crease v. Babcock, 10 Met. 525, 568; Schley.v. Dixon, 24 G-a. 273; Bank v. St. Johns, 25 Ala. 566. The liability is an asset that passes to the receiver. Blanchard v. Cawthorne, 4 Sine. 572. A recovery would allow one creditor to be paid in full to the prejudice of the other creditors. High Rec. 143, 352; Ames v. Trustees, 20 Beav. 332.</p>

<p>Costs, in what Court to he Allowed, in proceedings for Partition of Beal Estate. R. L. Chap. 70. Practice.</p> <p>Costs, — expenses of commissioners, &c. — in partition cases can only be allowed in the County Court; and if no order is made in that court as to costs, none will be in the Supreme Court; thus, a motion in the Supreme Court to have a cause heard at a former term brought forward and costs allowed, was dismissed.</p>

Information filed by the state’s attorney, December 12, 1883, charging the respondent with the illegal sale of intoxicating liquor. Trial by jury, April Term, 1885, Powers, J., presiding. Verdict, guilty of three offenses. cited 11 Allen, 260; 11 Met. 573; 1 Gray, 462; 7 Gray, 494; 5 Allen, 513; 4 Gray, 11; 38 Vt. 37; 39 Vt. 370; 1 Bish. Cr. Proc. 390. cited 1 Bish. Cr. L. s. 856; Whar. Cr. L. s. 590; 52 Vt. 313; 1 Bish. Cr. Proc. 386; 26 Vt. 767; 1 Arch. Cr.

Trespass, quare clausum. Heard on the report of a ref-. eree, December Term, 1883, Powers, J., presiding. Judgment for the plaintiff.

Bill to have mortgage discharged. Heard, September Term, -1882. Powers, Chancellor, decreed that the bill should be dismissed. The bill was dated August 30, 1881. The hearing before the master was July 25, 1882. In a bill to remove the cloud which a mortgage creates, the account should be taken to the time of hearing. 17 Conn. 556; Adams v. Brown, 7 Cush. 220. The orator is entitled to amend his bill; also, to have the case ended in this court. 4 Desaus.

Petition to foreclose a mortgage. Heard on a master’s report, December Term, 1884. Taut, Chancellor, decreed a foreclosure, allowing the oratrix the note of $328, disallowing the note of $80, and allowing the defendant the $254.09.

Trespass on the freehold. Plea, the general issue. Trial by jury, December Term, 1884, Taft, J., presiding. Verdict for the plaintiff; but judgment for the defendant to recover his costs since the tender was made. The jury returned a verdict for the plaintiff for §18.41, damages and costs; but to the following question: “What was the amount of damage done to the ground, growing grass, corn, the apple 'tree, and the corn fodder in the barn ? ” they answered that it was §5.