58 Vt.

Volume 58 — Vermont Reports

131 opinions

58 Vt. 1Rowell v. Horton (1886)
Replevin. Trial by jury, September Term, 1885, Veazey, J., presiding. Verdict pro forma directed for the defendant. To justify the defendant must show that they were legal taxes. Buzzell v. Johnson, 54 Vt. 90; Hoiues v. Bassett, 56 Vt. 141; Iron Works v. Cone, 56 Vt. 603; Hughes v. Vail, 57 Vt. 41. The listers were not properly qualified for their duties, by reason of not having taken the constitutional oath of office.
58 Vt. 12Stewart v. Village of Rutland (1886)
Commissioners’ report as to amount of damages the petitioners are entitled, caused by the taking of land for sewer purposes. Heard September Term, 1885, Veazey, J., presiding. Judgment pro forma that the petitioners recover the larger sum named in the report.
58 Vt. 18Rowe v. Hicks (1886)
Replevin of fourteen cows. Plea, not guilty; license, avowry that cattle were taken damage feasant. Replication, similiter to general issue, traverse of license. Plea to avowry, that cattle were in plaintiff’s close and got out though defendant’s portion of division fence which was not legal fence, and that there was a pound in Wells, and cattle should have been impounded therein. Trial by court, September Term, 1885, Veazey, J., presiding. Judgment for the plaintiff.
58 Vt. 21State v. Miller (1886)
Debt on a recognizance. Plea, general issue. Trial by court, September Term, 1885, Nicholson, Assist. J., presiding. Judgment jpro forma for the plaintiff.
58 Vt. 24Starr v. Brewer (1886)
Bill in Chancery. Heard on bill, answer, and testimony, September Term, 1885, Veazey, Chancellor. Suit discontinued as to the railroad companies, and decree pro forma for the orators.
58 Vt. 35Green v. Morris (1886)
 Statute of Limitations. Payment by Surety. . Agent. 1. When a surety pays money, which he has received in the presence of the payee from a principal on the note, it is a question of intent, in its effect on the Statute of Limitations, whether he paid it as agent of the principal, or for himself; if it was the understanding of all the parties that the surety was acting for himself, it was a payment hy him, and removes the statute har as to him. 2. Bailey v. Corliss, 51 Vt. 306, distinguished.
58 Vt. 38Stearns v. Gosselin (1886)
Insolvent Law. Evidence. Intent. Preference. R. L. ss. 1860-1. In an action by an assignee to recover money claimed to have been paid in preference to other creditors, and in fraud of the insolvent law, it is proper for the debtor to testify to his-intent at the time he made the payment.
58 Vt. 40Sherman v. Johnson (1886)
■Trespass for an assault and battery, with a count in trespass guare clausum. The plaintiff after the second term filed an amended declaration in four counts. The defendants pleaded separately, the general issue, special pleas, and notice of'special matter. These pleas were filed July 15, 1885.
58 Vt. 45Mussey v. White (1886)
Audita Querela brought to set aside a judgment of the County Court, rendered at the September Term, 1878. Plea, general issue. Trial by jury, September Term, 1885, Yeazet, J., presiding. Yerdict ordered for the defendant. The complainant introduced evidence tending to show fraud and that the said judgment of the County Court was obtained without his knowledge; that the writ was never served upon him; that he was out of the State at the time the original writ in said cause in which said judgment was rendered, was made; that he was never served with a copy of said writ and had no notice whatever of said suit; that certain real estate was attached upon said writ and set off upon the execution issued on said judgment in which said real estate the complainant claimed an interest. Defendant then offered in evidence a judgment of the County Court rendered at the term in an audita querela which defendant claimed was brought by the complainant to set aside the same judgment of said County Court, which judgment in said audita querela was for the defendant therein. The plaintiff objected to the admission of the said record, on the ground that defendant could not introduce said record under the general issue, but should have filed a special plea, and on the ground of fraud in obtaining tfye same. The court admitted the evidence and the complainant excepted. Defendant introduced no other evidence except certain deeds and contracts and the record of a decree of the court of chancery. The complainant then offeréd to show that said judgment so obtained in the aforesaid first audita querela was wholly fraudulent and void, was brought in the interests of the plaintiff in the original suit for the purpose of validating so far as he could the first aforesaid judgment of the County Court, and wholly without the knowledge or consent of the complainant; that it was not signed nor sworn to by the complainant. The court excluded the evidence and complainant excepted. The record of this judgment was not admissible under the general issue. It is not a general denial of the complainant’s cause of action. It was purely special matter in bar. The audita querela is a judicial writ; but there is no reason why it should not be governed by the same rules as to pleadings. Shumway v. Sargent, 27 Vt. 442; Phelps v. Slater, 13 Vt. 195 and 17 Vt. 512; Campbell v. Downer, 47 Vt. 599. A plea alleging a judgment upon a judgment attempted to be set aside is no bar to audita querela on the first judgment. 47 Vt. 599. A judgment may be impeached for fraud or collusion. Chamberlain v. Prible, 93 Mass. 376. Best Ev. s. 595. And the record may be shown to he a forgery and for the same reason may be shown to have been obtained by fraud on the court. Noell v. Wells, Sid. 358; Campbell v, Downer, 47 Vt. 653; Ereem. Judg. s. 249.. An action on a judgment may be defended on the ground of fraud and the original judgment is not conclusive if obtained" by fraud and collusion. Spencer v. Vigneaux, '20 Cal. 442. Audita querela is in the nature of a bill in equity and will not lie where the complainant has had an opportunity to try the question he complains of, or where the injury of which he complains is to be attributed to his own fault or neglect. Comstock v. Grout, 17 Yt. 512; Stanifordr. Barry, 1 Aik. 321. The complaint sounds in tort, and the proper plea is, not guilty. Little v. Cook, 1 Aik. 363. The record which was offered was a record of the same court in which the trial was in progress. That record and the writ in this case are referred to, and show by the inspection that the writ in .the present case is a copy, only changing dates of the writ in the prior case, and is brought to set aside the same judgment, and that there was a judgment in that case against the complainant. It is well settled that a former recovery may be shown in evidence under the general issue, as well as pleaded in bar. 1 Greenl. Ev. s. 531. When a former adjudication is relied upon as having determined the entire controversy, it need never be pleaded as an estoppel, but is an equitable defence, and in many actions may be given in evidence under the general issue. Gray v. Pingry, 17 Yt. 419; Perkins v. Walker, 19 Yt. 144.- When a former recovery is given in evidence, it is equally conclusive in its effect, as if it were specially pleaded by way of estoppel. 1 Greenl. Ev. s. 531, a; Johnsons v. Williams, 48 Yt. 565. The complainant did not deny that the adjudication in the record offered in evidence, was of the precise issue made by his complaint on trial; but he sought to impeach the first judgment as fraudulently obtained by the defendant in the name of the complainant, but without his knowledge or consent. This is not a proceeding to set aside that judgment, but an attempt to attack it collaterally. Judgments that appear to have been regularly obtained, are conclusive upon parties and privies, and they cannot be impeached in any collateral proceeding. Kimball v. Newport, 47 Yt. 38; Porter v. Gile, 47 Yt. 620. The record shows that the complainant appeared in the former audita proceedings by a known and recognized attorney of the court. This appearance binds the complainant. And that judgment could not be set aside on audita querela, brought directly to vacate that judgment. Spaulding v. Swift, 18 Yt. 214; Abbott v. Dutton, 44 Yt. 546; Hayward v. Clark, 50 Yt. 612.
58 Vt. 49Town of Pittsford v. Town of Chittenden (1886)
Illegitimacy. Evidence. Non-Access of Husband. Pauper. Bastard Child’s Settlement. Mother’s Settlement. Former Recovery. R. L. s. 281. 1. The illegitimacy of a child horn of a married woman may be established by evidence, in effect, that her husband had utterly abandoned her, that he removed to a distant part of the country, and had no opportunity of access to her during the four years next preceding the birth of the child. 2. The establishment of the settlement of an illegitimate child by order of removal unappealed from, establishes, and necessarily determines, the settlement of the child’s mother, in a subsequent proceeding. The first adjudication involved the essential fact of the second, and is therefore conclusive.
58 Vt. 58T. T. Amory & Co. v. Estate of Greer (1886)
Heard on motion to dismiss, September Term, 1885, Veazey, J., presiding. Motion pro forma denied.
58 Vt. 60Marshall v. Morgan (1886)
Assumpsit. Heard by the court, September Term, 1885, Veazey, J., presiding. Judgment for the defendant. Peter Fagan assigned to the plaintiff, for the benefit of his creditors, his attachable property, including choses of action, debts due to said Fagan, &c. The exceptions stated: “In the transfer of the property to the defendant under this contract, the plaintiff turned over all the books and bills as kept by Fagan, as evidence of the debts due him.
58 Vt. 65Foster v. Worthington (1886)
Assumpsit in the common counts. Trial by jury, September Term, 1885, Vea'zey, J., presiding. Judgment for the plaintiff. The • plaintiff and defendant entered into a contract in writing dated the day of 1884, providing in substance that the plaintiff was to furnish all the material and build a dwelling-house for the defendant on her lot in Rutland, and deliver it completed according to said contract by September 1, 1884, for the sum of $2,250, five hundred dollars to be paid in advance and the balance to be raised on a mortgage on said premises; and the plaintiff was to find a person to take the mortgage and furnish the money thereon. The contract provided that the plaintiff was “to find and furnish parties to take a mortgage and furnish money to complete building.” The mortgage, which the plaintiff sent to the defendant to execute, was written for $1,000. The plaintiff’s evidence tended to show, that he proceeded under said contract (having received $500 from the defendant) to build said house according to said contract, except as he deviated therefrom by request and direction of the defendant through her agent, one Blakeley, and expended in labor and material on said house a large amount and brought the same nearly to completion, when the defendant interposed and discharged him and refused to allow him to go on further with said job, and took possession with carpenters, and went on and completed said house; that his labor and material which he put into the house were such as the contract called for; that after the cellar was completed and as the plaintiff required more money, he found a person ready to advance the sum on a mortgage on said premises, and he had a mortgage drawn and the same was sent by the said Blakeley to the defendant to be executed; but she held it along and neglected and refused to execute it; and that this greatly embarrassed and delayed him in his work. The plaintiff claimed to recover only for the value of his labor and material in excess of said $500 paid as aforesaid, and waived all claim for damages under said contract. The defendant claimed that the plaintiff could not recover anything under his declaration in the common counts; and moved for a verdict to be directed on the plaintiff’s showing.The court declined to so rule, to which the defendant excepted. The defendant’s evidence tended to show that the plaintiff violated the contract in quality of labor and material; and that she ordered no changes from the contract. The contract was dated May 19, 1884 ; the unexecuted mortgage, August 1, 1884. The other facts are sufficiently stated in the opinion of the court. The exceptions show the house was not completed by September 1st. Plaintiff claims the delay was caused by defendant’s refusing to sign mortgage. The mortgage itself shows it was not such a mortgage as the contract called for; lienee, defendant claims that she discharged plaintiff because he did not go on according to the contract; that it was plaintiff and not herself that terminated the contract. The contract was entire. Chit. Con. 565, 570; Sinclair v. Bowles, 9 B. & C. 92. A party cannot recover on the common counts under an entire contract where he himself is at fault. Jones v. Marsh, 22 Yt. 144; Kettle v. Harvey, 21 Yt. 301; Mullinv. Qilkinson, 19 Yt. 503; 18 Wend. 187. The termination of the contract was in consequence of the default of the plaintiff. Chit. , Con. 738; 2 M. & W. 582. The stipulations were conditions precedent; and the nonperformance of these frees the defendant from all liability. Chit. Con. 741; Hare v. Bell, 6 Yt. 35; 6 Yt. 385; St. A. S. B. Co. v. Wilkins, 8 Yt. 54; Beal v. Moore, 19 Johns. 337. In this case plaintiff, to recover, should prove a reason for the non-completion of the house by the time specified; but the evidence shows plaintiff himself was at fault, as he did not furnish such a mortgage as the contract called for. S. M’f’g Co. v. Armstrong, 19 Me. 147. General assumpsit was the proper form of declaration. When defendant stopped the plaintiff in the performance of the contract, such act worked a completion thereof on the part of the plaintiff, so far as his rights of recovery are concerned, as much as though he had fully performed according to the strict terms of the contract; and if up to that time plaintiff had fulfilled on his part he would be entitled to pay for his labor and materials furnished, and any special damages he might suffer by reason of the breach of contract on the part of the defendant. Whar. Con. ss. 312, 603; Chit. Con. 617; Shepley, J., in Hill v. Milburn, 17 Me. 316; White v. Oliver, 36 Me. 92; Morrow v. Huntoon, 25 Yt. 10; Derby v. Johnson, 21 Yt. 17; Dyer v. Claggett, 39 N. H. 431; Sivift v. Harriman, 30 Yt. 607; Brackett v. Morse, 23 Yt. 554; Gilman v. Hall, 11 Yt. 510; Dyer v. Jones, 8 Yt. 205; Mellish, L. J., in Panama Tel. Co. v. India Rubber Tel. Works, L. R. 10 Ch. 532.
58 Vt. 70Third National Bank v. Dorset Marble Co. (1886)
Assumpsit on the common counts. This was a collection suit, and by agreement of parties judgment was rendered for the plaintiff at the September Term, 1884, and the cause continued for assessment. Hearing, September Term, 1885, Veazey, J., presiding. Judgment pro forma for the amount claimed in the specifications. Exception by defendant.
58 Vt. 74May v. Adams (1886)
Bill in Chancery. Bill pro forma and without hearing dismissed at the September Term, 1885, Veazey, Chancellor. This case was heard at the January Term, 1885, of the Supreme Court, and decided at the next term of said court.
58 Vt. 82McClure Bros. v. Briggs (1886)
Book Account. Heard on the report of an auditor, March Term, 188o, Veazey, J., presiding. Judgment for the plaintiffs. The auditor found: “On May 9, 1881, one Bradley applied to the defendant to purchase a parlor organ. The negotiations resulted in the defendant giving Bradley an order. Bradley was the agent of the plaintiffs, to whom the order was directed, to sell organs and obtain such orders. There was no fraud in the transaction.
58 Vt. 90Davis v. Hulett (1886)
 Mortgage. Equity. 1. Purchaser of Equity Assumes Mortgage, when. The purchaser of an equity of redemption incurs a personal liability, and is deemed to have entered into an express undertaking, to pay the mortgage, by merely accepting, without signing, a deed whose words import that such was the intention, — as that he “ assumes and agrees to pay ” the mortgage debt. 2. Court of Equity — Jurisdiction—Subrogation. In such ease, when the mortgage has been foreclosed and the premises sold in accordance with the statute law of the State where they are situated, but bring an amount less than the debt, a court of equity has power and jurisdiction to compel the purchaser to pay the balance. The mortgagee is entitled to be subrogated to the rights of the mortgagor.
58 Vt. 95Vermont State Baptist Convention v. Ladd (1886)
Heard on an agreed statement, September Term, 1885, Veazey, J., presiding. Judgment pro forma for the plaintiff. Priscilla B. Leach, the testatrix, died. May 1, 1880; her will -was probated July 19, 1880, and letters testamentary were issued to defendant Ladd on the 30th of the same month.
58 Vt. 106Giddings v. Turgeon (1886)
Appeal from the Probate Court. Heard, September Term, 1885, Veazey, J., presiding. The court ruled, pro forma,, that Partridge, being the husband of one of the legatees, was not a competent witness to prove the execution of the will; and excluded his testimony, and rendered judgment that said instrument was not the last will of Elmina Turgeon, and ordered the result certified, etc. We insist that Partridge is a credible witness within the meaning of the statute, and the case falls directly within the reason, purpose, and effect of sec. 2046, R. L. 1 Red. Wills, 258; Jackson v. Wood, 1 Johns. Cas. 163; Jackson v. Lurland, 2 Johns. Cas. 314; Winslow v. Kimball, 25 Me. 493. The beneficial interest to a subscribing witness to a will need not be direct, nor expressed in the instrument. Clark v. Hoskins, 6 Conn. 105. The legacy to the wife of the witness, under the doctrine of the rules laid down in the cases above cited, should have been held void, and the witness allowed to testify. The object of this statute was to prevent wills from becoming nullities by reason of any interest in witnesses to them created entirely by the wills themselves. Statutes are to receive such a construction as must evidently have been intended by the legislature. Byegate v. Wardsboro, 30 Yt. 746. When the words of a statute are plain and unambiguous, but are directly repugnant to all legislation on the same •subject and in the same act, and seem to involve an absurdity, the court will disregard the letter of the law, and attach to it that meaning which the legislature really intended. Byegate v. Wardsboro, 30 Vt. 746; Henry v. Til-son, 17 Vt. 479. Sullivan v. Sullivan, 106 Mass. 474, is distinguishable from this. It is governed by the particular wording of their statute. Gen. Sts. (Mass.) c. 92, s. 10; 1 Jar. Wills, 227. It extends the application of the English cases far beyond what is decided in them. Hilliard v. Jennings, 1 Ld. Raym. 505; Holdfast v. Dowsing, 2 Str. 1253; Wyndham v. Ohetwynd, 1 Burr. 414; Hatfield v. Thorp, 5 B. & Aid. 589. An interest in the wife will disqualify the husband as a witness to the extent of his wife’s interest. 1 Red. Wills, 258. The appeal vacated the judgment of the Probate Court. 38 Vt. 703; 48 Vt. 122. The Act of 1884, No. 109, applies. ' It is a remedial statute, and does not 'exempt pending or existing cases, and applies to all wills to be proved and established after its passage. The contestant has no vested right which such an application disturbs. A right to have one’s controversies' determined by existing rules of evidence is not a vested right. Cooley Const. Lim. (4th ed.) 457. A cause must be tried under the rules of evidence existing at the time of the trial, though different from those in force when the suit was commenced. Rich v. Flanders, 39 N. H. 323; Little v. Gibson, 39 N. H. 505; Soutluvick v. Soutluvick, 49 N. Y. 510. And if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered. State v. Norwood, 12 Md. 195; Cooley Const. Lim. 477. A party has no vested right in a defence based upon an informality not affecting his substantial equities. Cooley Const. Lim. 461, and cases there cited. The husband of Mrs. Partridge cannot be a witness in this case. In the case of Wheeler v. Wheeler’s Estate, 47 Yt. 637, the court say: “If a wife be directly interested in the event of a suit, although she be not a party to the record, her husband is not a competent witness in the cause.” The husband or wife of a legatee would have the same interest and solicitude for their companion, whether the property was coming by legacy or descent. Exr. of Carpenter v. Powers, 43 Yt. 392. Had Mrs. Partridge herself been a witness, the will would have been void as to herself, but not as to other persons. This is not by common law, but by statute. R. L. s. 2046. By the common law such a will was all void, because not executed according to law, and the statute was made to change the common law. But sec. 2046 does not include the husbands and wives of legatees, and does not apply to the case now under consideration. By the common law the husband of one of the legatees could not be a competent witness to the will. This was held at an early day in the case of Holdfast v. Dowsing, 2 Str. 1253. The decision in the case of Holdfast v. Dowsing led to the statute of 25 Geo. II., which was re-enacted by the statute of 1783. These statutes were in substance the same as sec. 2046 of the Revised Laws of Vermont. In 1822, under said statute, a case exactly like the case at bar came up for consideration in the Court of King’s Bench, and the court were of the opinion that the will was not duly attested. Hatfield v. Thorp, 5 B. & Aid. 589. Such continued to be the law of England until 1837, when the statute of 1 Viet. c. 26 was enacted. Connecticut at an early day adopted the same rule laid down by the common law of England and the English decision. Fortune v. Buck, 23 Conn. 1. This identical question was brought before the Supreme Court of Massachusetts in a late case, and the court unanimously held the will void. Sullivan v. Sullivan, 106 Mass. 474. Under the laws as they existed in this State, May 4, 1884, the date of the death of the testatrix, the will was void. The Act of 1884, No. 109, does not affect the case. On the death of a person his estate vests immediately in his heirs. 1 Jar. Wills, 631; Blake v. Stone, 27 Vt. 495; 2 Wash. Real Prop. 409; Wilson v. Wilson, 13 Barb. 252. The legislature has no constitutional power to pass a statute which would operate retrospectively, and take away a vested right. Wright v. Oakley, 5 Met. 400; Bates v. Kim-ball, Adm’r, 2 D. Chip. 77; Dupyv. Wickwire, 1 D. Chip. 237; Staniford v. Barry, 1 Aik. 3; Ward v. Barnard, 1 Aik. 121; Hill v. Sunderland, 3 Vt. 507; Dash v. Van Kleek, 7 Johns. 477; Gilmore v. Streeter, 2 Mod. 310; Couch v. Jeffries, 4 Bur. 2460; Aug. Lim. 18; Richardson v. Cook, 37 Vt. 599; 8 Mass. 423; 12 M. & W. 305; Wires v. Farr, 25 Vt. 41.
58 Vt. 113Mullin v. Vt. Mutual Fire Ins. (1886)
Assumpsit on an insurance policy. Plea, the general issue. Trial by jury, September Term, 1884, Veazey, J., presiding. Verdict for the plaintiff. The clause in the policy relating to adjustment of losses contained the following: “ If there be any misrepresentation, fraud, or false swearing, the' claimant shall forfeit all claim by virtue of his policy.” The application contained the following: “ The said applicant hereby covenants and agrees to and with said company that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, and value of the property to be insured, so far as the same are material to the risk, and in case any matter material to the risk is not fully stated, or in any material thing is misrepresented, the policy issued hereon shall be void.” A negative answer was given by the jury to the following questions: “ Was there any fraud, false swearing, or intentional misrepresentation in the proof of loss as presented by the plaintiff?” “ Did Butler in soliciting the insurance, and writing the answers to questions in the application, act in his own behalf, independently of any employment by Manley to aid him in procuring the insurance and preparing and forwarding the application?” The building in which the property was insured consisted of a barn and two story building at West Rutland, of which the lower story was occupied as a store, and the upper story by the plaintiff as a tenement, in which he and his wife lived, and Daniel Mullin, mentioned in the policy, was his brother and lived with him as a boarder. The furniture, clothing, etc-., insured, were in the upper story. It appeared that after the application had been made out and forwarded to the company, the company returned it to J. E. Manley, their agent at West Rutland, with the following additional questions: “What kind of goods are kept in this store? by whom owned? are they insured? where? What part of the building are the household furniture, etc. ? Are there any other tenants in the building? ” The first printed question in the application, namely: “ Where situated and by whom owned and occupied, and for what purpose?” was answered as follows: “West Rutland — James Gilmore — occupied as store and tenement by James Mullin.” In answer to said additional questions, an addition was made to this answer in the words, “ and brother, merchandise, drugs, and groceries — Mullin Bros., owners — -stock insured in Lycoming Insurance Co.” It appeared, that one Michael Carrigan was the owner of the stock of goods in the store, and that he was the tenant of the store, and his tenancy was not disclosed by the application. Said Carrigan had previously bought the stock of goods at sheriff’s sale, and Mullin Bros, were running the store as clerks for him under an agreement that when they should pay him the amount of the indebtedness upon which the goods were taken and sold, they should become theirs. The plaintiff gave evidence tending to show that the application was taken by one J. D. Butler; and claimed that said Butler in doing so acted as agent of the company, and that the knowledge which he claimed that said Butler had . at the time of the application of the false statements and concealments as to the ownership of the goods in the store, the tenancy of the store by Carrigan, and the use of the building for the keeping and sale of intoxicating liquors, charged the defendant company with knowledge thereof, and took from it the defences which it would have had hut for such knowledge on the part of said Butler. J. D. Butler testified that he supposed that he was the agent of the defendant. Mr. Manley, called by the defendant, testified that in January, 1879. he was agent of the defendant company at West Rutland, and that the company had no other agent there; that he knew said Butler, and that Butler was at the time a student-at-law in his office, had been there about two years and did some clerical work for him, and solicited insurance as a broker; that Butler was not agent for said company, nor his partner in respect to his (Manley’s) agency for said company; that he (Butler) was an insurance broker, and as such engaged in soliciting applications and placing the insurance through agents of insurance companies, and receiving therefor from the agents a commission on each application; that the store of the Mullins was about sixty rods from the office of said Manley; that said Butler did insurance business by looking up applications and placing them through Manley in the said defendant company, and through agents for other companies, and got his compensation for insurance placed through Manley, by Manley’s paying him $1.50 on each application, and that Manley got his pay from the company by receiving $2.00 for each application; and in reference to those applications taken by Butler, the said Manley did the correspondence with the company; that Manley had been appointed agent to the company previous to that time; that he saw the application before it went away from the office to the company, at his office; that said Manley's name was signed to the application by Butler in Butler’s handwriting, and was made upon one of the blanks of the company furnished to said Manley by the company. Said Manley further testified, that said application was shortly afterwards returned to him by the company with said additional questions written on the margin; that upon the receiving back of said application, he handed it to Butler and requested him to go and get the reply; and that Butler took the same and shortly after brought it back with the additional answers in Butler's handwriting; that he knew that said Butler had once worked several days on the Mullin Bros.’ books at their store. As to the time when said Butler learned or knew of the situation of the property, he stated in his deposition, that in December, 1878, he was employed by James Mullin to examine the books of Mullin Bros., and that at that time he told him of the arrangement between Carrigan and Mullin Bros, in relation to the property insured. The application was approved January 10, 1879. The defendant’s evidence tended to show that the time referred to in Butler’s deposition, when he was at work on the books, was some three months prior to the time of taking the application. Its evidence also tended to show that the plaintiff was guilty of fraud in his proofs of loss, and of false swearing. The plaintiff conceded that the numerous articles of silver ware which were represented in the proof of loss as lost in the fire, were not lost; but plaintiff’s evidence tended to show that they were inserted in said proof of loss purposely by his wife; and plaintiff testified he supposed they were lost, when in fact they were not. It appeared that they were found by officers upon a search-warrant on June 11th, 1879, at the house of the plaintiff’s father-in-law, where the plaintiff was then living. At the close of the testimony, the defendant moved the court to direct a verdict, assigning: That false answers were made in the application, (1) as to the kind of goods kept in the store, — as intoxicating liquors; (2) as to the ownership; (3) as to the occupancy; and (4) that there was fraud and false swearing in the proof of loss. The court denied the motion. The defendant requested the court to charge: ‘‘ 4. There is no proof that Butler knew that Carrigan was tenant or occupant of the store; therefore the claim of knowledge by him as an answer to the concealment in the application of that fact cannot be made.” “ 5. That if the plaintiff falsely represented to Mr. Fletcher, the adjuster of the defendant company, that the Lycoming Insurance Company had settled and paid the loss under the policy of the latter company upon the store property, claimed to have been lost by the same fire, with the intent thereby to induce a settlement of the loss here in question, that was such misrepresentation as would, under the terms of the policy, work a forfeiture of all claim on the part of the plaintiff by virtue of the policy.” “ 6. That if the plaintiff in his proof of loss adopted any false statement of his wife with reference to the fact of loss, or the amount or value of property claimed to have been lost, without attempting to know or to investigate the truth of such matter for-himself, he thereby became responsible for such statement as misrepresentation within the meaning of the policy, to the extent to which he would have been able by the exercise of reasonable care, to discover the truth in respect to such matters, if he had undertaken to do so.” “ 7. That if the plaintiff in his proof of loss, adopted any false statement of his wife with reference to the fact of loss, or the amount or value of property claimed to have been lost, without attempting to know or to investigate the truth of such matters for himself, he thereby became responsible for such statement as misrepresentation, within the meaning of the policy.” The court charged as to the agency of Butler: Manley says in substance that he was a law student in his office; been there about two years; that he got his living by teaching and by clerical work, as he could get'jobs, and by soliciting insurance as a broker. He says when he brought an application to him and a policy was issued, he paid him $1.50 for it. He denies he had any other relation with him in the insurance business, or that Butler worked for him in it, or had anything to do with his agency for this company. The tenor of his testimony is that Butler acted in his own behalf in soliciting insurance; and he paid him on each application the same as he would any broker who brought him an application; that Butler was not his clerk or his partner in anything that he did in the matter of insurance. As a law student in his office, he says, in substance, he did some things for him in that connection. This is the substance of his testimony, as I recollect it. It is denied in evidence, and there is nothing to show, that Manley had any authority or right to delegate his agency to another. He could not appoint an agent of this company, but he could employ a clerk or partner to help him in his insurance business, and work done by the clerk or partner for the agent could be done in such a way or under such circumstances as to have the same binding force on the company as though the agent had done it all. * * Butler goes, and brings back -an application, Manley looks it over, puts his name on it as agent, and sends it forward, and a policy is issued thereon. In the absence of any fraud, that application would stand just the same as though Manley had done the whole thing in person, provided the act was done under such circumstances that the company knew or ought to have known that a clerk would be employed by and to act for the agent Manley, in such a manner and in such a way. Take this case: Mr. Manley is a lawyer at West Rutland; has an office there for doing law business. This company appoints him their insurance agent. There is a large village there, a large constituency for this kind of business. Now, the only question is whether the company ought to have known, when they appointed him, that in the performance — fair performance — of his duties as their agent there, he would necessarily use a clerk to aid more or less in the carrying out of the business of that agency. ***** If Butler had no agency for the company, and had no employment by Manley to solicit this insurance or aid Manley in it, but went on his own motion, acting independent of the company and its agent, Manley, and took this application as his own sole transaction * * * * and Manley took it from him as Mullin’s application in the same way he would have taken it if Mullin had brought it in to him, as an application made out by Mullin in person in which he, Manley, had taken no part by himself or others, then the company was not affected by any misrepresentation made to Manley by Mullin, but had and have a right to stand on it as made, and to take advantage of its material false statement the same as though Mullin had made it all out himself, without additional statement to any one.” Butler’s knowledge as to title of property: “ I do not understand that the plaintiff is definite in saying he told Butler the same at the time of the application. It is for you to say. If Butler previously knew how the title stood, etc., and there had been no change in it, it would not have been necessary for the plaintiff to go into detail at the time of the application. If he had said to Butler, £ You know just how the title stands; it is just as we talked when you were at work on my books,’ that would have been sufficient. If the plaintiff at the time of negotiating the application with Butler said enough to him to give him fairly to understand that the title had not been changed since he knew about it, but stood just the same, that was sufficient. Butler should have put it down as the fact was; and the plaintiff should not suffer because he did not, provided Butler stood in such relation to Manley as to bind the company as above explained.” Fraud in proof of loss: “ The plaintiff had a proof made out, swore to it, and presented it within the thirty days. It turns out that he embraced some articles not lost. And it is claimed he put values too high. It was the duty of the plaintiff to present an honest statement of his loss; knowingly and intentionally including in it articles not lost, or putting value to articles lost too high, for the purpose of getting more than entitled and thus defraud the company, would work a forfeiture of all claim. “ There is no dispute on this point. The question is one of fact. Did he do this ? Here is the issue. Did he intentionally present a sworn statement of loss that was false, that contained misrepresentations, that were fraudulent? “ This question embraces two questions, (1) Whether the statement was false in fact? (2) Was that intentional or by mistake? “ The plaintiff explains how the statement was made and what he said when he presented it; says he did not know the silver ware was saved; and told Fletcher (agent to adjust the loss) the silk dress was saved and should be deducted, although it was included in the statement. Fletcher denies this. And the defendant has put in evidence such facts as it is claimed tend to show misrepresentation, fraud, and false swearing by the plaintiff. “There is considerable circumstantial evidence on both sides bearing on this point of good faith, and it is upon the whole that you are to say whether the errors such as you find exist in the proof of loss were mere oversights, mistakes, inadvertences, errors of judgment as to price of values, honest overestimates, or whether there was substantial misrepresentation, fraud, or false swearing. ‘ ‘ The plaintiff had the right to have his wife or any other person make the paper. But that did not relieve him from obligation to be honest himself in adopting it and swearing to it. He is not responsible for any attempted frauds of his wife or others, to which he was not a party.” The other facts are sufficiently stated in the opinion. 1. No relation, either of dealing or of knowledge, between Butler and the company having been shown, but only the acting of Butler, the court erred in what it said in its charge as to Butler’s being* agent of the company, namely: “If you are fairly satisfied upon the evidence, that Batter zoas the defendant’s agent,” etc., and other similar expressions. Was there any partnership? There was no evidence nor even claim that there was any partnership which, as such, was the agent of the company. If, therefore, Butler derived any powers, it was not as a member of a partnership which was agent, but must have been as partner of an agent. But Butler does not pretend that he had any agency derivative through Manley. He said he supposed he was as much agent as Manley — not as expressed by the court, that he had any sub-agency. What basis of fact is there in all this upon which to submit to the jury any proposition upon the idea of Butler having powers derived from & partnership? And even if there had been any basis of fact, the matter would, in point of law, come to just this: That Butler derived powers by virtue of being a partner of an agent who had no authority to delegate his powers — and who, even if he had had such authority, was not even claimed to have exercised it. The record is indisputable against the idea of a clerkship. Butler was an insurance broker, and brought the application from Mullin, in the character of applicant, to Manley, the agent of the company. 2. Now, even if evidence had been admissible that Mullin told Butler, at the time of- the application, what the title was, evidence was not admissible that he had told him, some three months before, and while Butler was in his employment, what the title was. Of course knowledge acquired by Butler at that time, and under those circumstances, would not bind the insurance company. Wood Ins. s. 404; 30 Mo. 03, 71. 3. The insured was bound to know whether there was any agency, and to know the scope of the agency. White v. Landon, 30 Yt. 599; Sprague v. Train, 34 Yt. 150; Goodrich v. Tracy, 43 Yt. 314; Cooper v. Farmers’ Mutual F. Ins. Co. 50 Penn. St. 299; Wood Ins. 652, s. 397. And to prove it. Wood Ins. 649, s. 396; lb. 663, s. 399. The representations being warranties, the agent’s knowledge is unavailing. Tebbetts v. Hamilton Mut. Ins. Co. 3 Allen, 569; Sheldon & Co. v. Hartford F. Insurance Co. 22 Conn. 235; Cooper v. Ins. Co., supra. Want of knowledge or of recollection, no excuse. Towne v..Fitchburg Mut. F. Ins. Co. 7 Allen, 51; Wilbur v. Bowditch Mut. F. Ins Co. 10 Cush. 446; Wood Ins. s. 397; 6 Cush. 42; 2 Denio, 75; 3 Allen, 569. The burden is on the party claiming estoppel to show the facts operating as such. Mullin must show that Butler was agent, or partner, or clerk — or something else belonging to the company; and that, as such, he had full knowledge. Smith v. Saratoga Co. Mut. F. Ins. Co. 3 Hill, 508; Garlinghouse v. Whitewell, 51 Barb. 208. The act of agent of applicant is the act of applicant. Wood Ins. s. 146, The acts of the agent must be within the scope of the agency. May Ins. s. 143; Richardson v. Maine Ins. Co., 46 Me. 394; Ayres v. Hartford F. Ins. Co. 17 Iowa, 176; American Ins. Co. v. Gilbert, 27 Mich. 429; Lowell v. Middlesex Mut. F. Ins. Co. 8 Cush. 127. 4. There was no proof that the plaintiff “told Butler” that Carrigan was lessee of the store. It was a concealment. Wood Ins. s. 216. The representations in the application are warranties, and a strict compliance is necessary. Wood Ins. 271, s. 137; Jennings v. Chenango Co. Mut. Ins. Co. 2 Denio, 75; Chaffee v. Ins. Co. 18 N. Y. 378; May Ins. s. 156. The burden of proving a literal compliance is on the plaintiff. Wood Ins. 866, s. 507; Campbell v. N. E. Mut. Fire Ins. Co. 98 Mass. 389, 390; Wood Ins. 380, ss. 196, 214, 223; Carpenter v. Am. Ins. Co. 1 Story (U. S.) 57; Burritt v. Saratoga Mut. Fire Ins. Co. 5 Hill, 192; Wilbur v. Boivditch Fire Ins. Co. 10 Cush. 446. “ The law of insurance has been regarded as specially requiring the utmost good faith.” Redfield, Ch. J., in Farmers’ M. F. Ins. Co. v. Marshall, 29 Yt. 28. 5. The defendant’s 6th and 7th requests should have been complied with. The very act itself of assuming the peril of speaking without knowledge is, and ought to be held, fraudulent. Keyes v. Carpenter, 3 Yt. 209; Twitchell v. Bridge, 42 Yt. 72; Cabot v. Christie, lb. 121; Wood Ins. ss. 195, 214. The defendant is bound by the acts of Butler. It is certainly bound by the acts of its own agent. R. L. s. 3617. And an application taken or transmitted through a local agent is the act of the company; and such agent is the agent of the insurer, and not of the insured. R. L. s. 3620; 20 Reporter, 465; Wopd Ins. 686, 690; Bodine v. Ins. Co. 51 N. Y. 117; Ins. Co. v. Fahren, 68 111. 463; Bank v. Ins. Co. 31 Conn. 517; New v. Ins. Co. 17 Minn. 123. Conversations with broker admissible upon the question of ageiicy. Ly. F. Ins. Co. v. Ward, 90 111. -545; 93 111. 96. Question is, what was agent’s apparent authority. Mc-Cabe D. Co. v. Mut. Ins. Co. 14 Hun, 599. A solicitor employed by a local agent is agent of the company. Davis v. L. Ins. Co. 18 Hun, 230. Agent may act within the general scope of his real or apparent authority. Wood Ins. s. 383. In all cases the binding force of an act done or omitted by an agent is to be measured by his apparent authority, and is to be determined by the jury. Wood Ins. C81, s. 403. Butler’s acts ratified. Beal v. P. F. I. Go. 1C Wis. 241; Ins. Co. v. McDowell, 50 111. 120; Creely v. Am. Cent. Ins. Co. 60 Mo. 116. Butler had knowledge of the title and occupancy of the property. He was informed by the plaintiff of Carrigan’s relation to the business. Hence the company is estopped. Kingv. Ins. Co. 51 Vt. 569; May Ins. s. 140; Ins. Co. v. Williams, 13 Ins. L. Jour. 133; Ins. Co. v. Wilkinson, 13 Wall. 222; Williams v. Ins. Co. 14 Ins. L. Jour. 708; Bank v. Ins. Co. 49 Vt. 442; Wood Ins. 629. I might go one step further and assert that knowledge alone of the agent as to the title, occupancy, use, etc., etc., was sufficient to bind the company in the case at bar. Both v. City Ins. Co. 6 McLean, 324; Michael v. Mu. Ins. Co. 10 La. An. 737; King v. JEbna Ins. Co. 42 Iowa 46; Cates v. Penn. F. Ins. Co. 10 Hun, 489; Wood Ins. s. 400; Marshall v. Col. M. Ins. Co. 27 N. H. 157; Walsh v. Vt. Mu. F. Ins. Co. 54 Vt. 351. Proof of loss. The verdict is conclusive that there was no fraud in the proof of loss. “ The law is well settled that the swearing must not only be false, but it must be knowingly and wilfully done.” 16 Reporter, 593; 35 Mo. 148; Mosley v. Ins. Co. 55 Vt.152; Wood Ins. 736, 746; Sans. Ins. Dig. ss. 2, 3, 5. The company must show that it was injured by the wilfully false statement. Stoche v. Ins. Co. 49 Wis. 89; Shawv. Ins. Co., 1 Fed. Rep. 761; Cabot v. Christie, 42 Vt. 121; Wood Ins. 736, 740. The elements of an estoppel in pais are wholly lacking here; the proofs of loss do not create the liability to pay the loss, but simply set running the time at the end of which the amount contracted for shall become payable and at ■which action may he brought to enforce the liability. Folger, Ch. J., in McMaster v. Ins. Co. 55 N. Y. 222. It must appear insured knew the matters stated to be untrue. 14 Wall. 375; 35 Mo. 148; 4 Daly (N. Y.) 96; 6 Ind. 137; 61 Me. 67; 16 B. Mon. (Ky.) 411; 4 Fields L. Briefs, 311; Clark v. Ins. Co. 36 Cal. 168. The plaintiff is not liable for the fraud of his wife. 35 Miss. 391; 39 Md. 485; .23 Ind. 599. A principal is not liable for damage caused by a wilful tort of his agent. 1 East, 106; 13 111. 277; 1 Hill, 480; 2 N. Y. 479.
58 Vt. 128Derragon v. Village of Rutland (1886)
 Pleading. Variance. Material Averment. Time. Surplusage. Videlicet. Practice. Amendment. Nonsuit. 1. In an action to recover lor injuries claimed to have been caused by the negligent construction of a sewer, there is a fatal variance when the declaration describes one sewer, and the evidence only tends to show a breach of duty as to another sewer. 2. M\terial Averment — Time—Surplusage—Videlicet. The defendant had constructed two sewers, one in 1872, on the north side of a street, near the plaintiff’s dwelling-house, and one in 1882. The sewer complained of was described in the declaration, not by boundaries, but as the one built in 1872; Held, that the averment, as to when the sewer was constructed, was material, and could not be rejected as surplusage; and that this is so, although laid under a videlicet. 3. Practice — Amendment—Nonsuit. An amendment of the declaration was not allowed as the court below suggested this course, and it was declined, but judgment was reversed pro forma, and a nonsuit entered. 4. A motion for a verdict on the ground of variance was properly made at the close of the evidence.
58 Vt. 136In re McLaughlin (1886)
Habeas Corpus. This case was brought before Judge Yeazey on January 2, 1886, and continued by him to the regular term of the Supreme Court. The case appears in the opinion of the court. The first mittimus sets forth that the convictions were contemporaneous. The offenses are well described, and the sentence in each case, except that the costs of the two convictions are added together. But both convictions being legal, no prejudice comes to the respondent from this; and it would seem a sufficient compliance with the statute. R. L. s. 4371. The same is true of the second mittimus. Habeas corpus will not lie when the process is merely voidable; the process must be void to entitle the petitioner to relief. Rob. Dig. 357; In re GHreenough, 31 Yt. 285. A harmless misdescription of the conviction in a justice’s mittimus does not entitle the relator to a discharge. In re Pliinney, 32 Me. MO; Hurd Hab. Cor. 338.
58 Vt. 140State v. O'Neil (1885)
These cases were heard together. In the first case, No. 27, the respondent was charged with selling intoxicating liquors contrary to law; in the second case, No. 28, with keeping intoxicating liquors with intent to sell, etc. The other two cases, Nos. 25 and 26, were proceedings for the condemnation of intoxicating’ liquor. The cases are appeals from a decision of a justice of the peace. The first two cases were tried by jury, March Term, 1883, Rutland County, Veazey, J., presiding. In the first case the jury returned a verdict that the respondent was guilty of 307 offenses; in the second case, that the respondent was guilty. In the first case, the court adjudged that the respondent was guilty of 307 offenses of selling intoxicating liquor without authority as of a second conviction; in the second case, the court adjudged that the respondent was guilty of the offense charged, as of a second conviction. Sentence and execution were respited and stayed; and the cases were passed on exceptions to this court. The other two cases were tried by the court on an agreed statement, at the same term, in Rut-land County, Veazey, J., presiding. In No. 25, the court overruled the claims of the claimant, the said National Express Co., and adjudged that the said liquors be forfeited; and in No. 26, the court adjudged that the liquors, which were paid for to the shipper at Whitehall, N. Y., be returned to the claimant, and the remainder of the liquors be forfeited. These cases were numbered on the court docket 25, 20, 27, and 28. No. 27 was a prosecution for selling liquor; No. 28, for keeping it, etc.; No. 25 was a proceeding to condemn and forfeit four jugs of intoxicating liquors shipped by Shehan & Co., dealers in liquors and cigars at Troy, N. Y.; and No. 26 was a like proceeding to condemn and forfeit liquors shipped by the respondent, O’Neil, a dealer in liquors and cigars at Whitehall, N. Y. Section 2 of No. 43 of the Acts of 1882 is, “In all cases where now, by any of the provisions of said chapter [169 R. L.], an officer is authoi’ized to seize intoxicating liquors, or the casks or vessels containing the same, by virtue of a warrant therefor, he may seize the same without a warrant, and keep the liquors, casks, or vessels so seized in some safe place, and shall forthwith procure such warrant, a*nd he shall thereupon make return of his doings under said warrant in the same manner as he would have done had the issuing of the warrant preceded such seizure.” Section 3818 R. L. is: “If three voters in a town make complaint, under oath or affirmation, before a justice in the county, that they have reason to believe aixd do believe that intoxicating liquor is kept or deposited ixr a dwelling-house, . store, * * * or other building or place in said town, and intended for sale, or distribution among others, by a person not authoi’ized to sell or distribute the same, said justice shall issue a warrant to any sheriff or constable to search the premises described in such complaint; and if intoxicating liquor is found therein under circumstances warranting the belief that it is intended for sale or distribution contrary to the provisions of this chapter, such officex-s shall seize the same,” etc. The respondent admitted on the trial for selling liquor, that he was a wholesale and retail dealer in wines and liquors at Whitehall, N. Y., and that he had been engaged in business there for more than three years; that his said business was lawful in the State of New York; and that during said time he had received at his store in Whitehall, three hundred and seven separate and distinct orders by mail, telegraph, and express for specified and designated small quantities of intoxicating liquors from as many different parties residing in Rutland, in the State of Vermont. It was further admitted by the respondent: “The orders so sent by express were in the form of a letter addressed to the said John O’Neil at Whitehall, aforesaid, and the letter attached to a jug, and the jug with the letter attached was delivered by said parties to the National Express Co. in Rutland; and charges thereon paid by the parties so sending the order. Orders sent by mail were by letters or postal cards, deposited in the post-offices at said Rutland, directed to John O’Neil at Whitehall, New York, and postage paid thereon. Orders sent by telegraph were delivered by the sender at the telegraph offices in said Rutland, directed to said John O’Neil, Whitehall, N. Y., and charges paid by the sender — which orders requested the respondent to send said intoxicating liquors to the parties ordering the same at said Rutland; and in more than one half the number of instances, said orders directed him to send said liquors by express, C. O. D.; and in the other instances, where the orders did not specify, it was the intention of the purchaser to have the goods so sent to him. “It is the usual course of trade for merchants, receiving an order from a considerable distance for goods in small quantities, to send the same by express, C. O. D., when the order is not from a regular customer, or a party of known responsibility. “ That upon the receipt of said orders, the respondent has, in each case, measured out the liquors called for in the order at his store in Whitehall aforesaid, and packed the same in jugs or other vessels and attached to each package a tag, upon which was written the name and address of the party ordering the same, and delivered each package so directed and addressed, at Whitehall, aforesaid, to the National Express Co., a New York corporation, a common carrier, doing business between New York and Montreal, and including the route between said Whitehall and said Rutland; and each of said packages also had upon said'tag the name and business card of the respondent; and none of said packages were in any manner disguised, and all of them were sealed with wax. It was not stated on the jugs or tags what they contained. “ The respondent at the same time delivered to said express company a bill of said liquor; which said carrier placed in an envelope, marked O. O. D.. which envelope had indorsed thereon among other things the following instructions: ‘Do not deliver the whole or any part of the goods accompanying this bill until you receive pay therefor. Be careful to notice what money you receive, and, as far a.s practicable, send .the same as received and follow the special instructions of the shipper, if any are given on the bills. If goods are refused, or the parties cannot be found, notify the office from whence received with names and dates, and await further instructions.’ Meaning thereby that said express company should receive the amount of said bill upon the delivery of the package to the consignee, and that without payment of said bill the said liquor should not be delivered. That, in the usual and ordinary course of business of said carrier in such cases, the said express company delivered each of said packages to the consignee named upon said tag at Rutland, and at the same time and concurrently with such delivery received the amount of the said bill in the C. O. D. envelope, the amount of freight for the transportation of said package from Whitehall to Rut-land, and the charges for returning said money to the respondent at Whitehall. The express company placed said money for the payment of said bill in the same envelope and returned it to the respondent at Whitehall. “The respondent did nothing to or with said liquoi's after the said packages were delivered by him at said Whitehall to said common carrier; and the said several consignees received the same and made payment as aforesaid at Rut-land; as and under the contract made as aforesaid through their said orders so sent to the respondent at Whitehall. “That it is the usual and ordinary course of business of said express company, in case goods are refused, or the consignees cannot be found, for the office to which goods are sent to notify the office from which they were shipped to notify the consignor of the facts, and the consignor would be consulted and his orders taken and followed as to the disposition of the goods. And this would be the same whether goods were sent C. O. D. or otherwise. “The respondent gave no special directions as to any of the packages shipped as aforesaid.” The respondent requested the court to instruct the jury that the facts set forth in said admission did not constitute an offense against the statute under the complaint in this cause. The court declined to so hold, to which the respondent excepted. The respondent also requested the court to instruct the jury that, under the facts set forth in said admission, they ought to find the respondent not guilty. The court refused to so instruct the jury; to which the respondent excepted. The court charged the jury that if they believed the facts set forth in said admission to be true, that the same made a case upon which the jury should find a verdict of guilty against the respondent. To all which the respondent excepted. After the verdict was returned into court, the state’s attorney offered in evidence a record, showing that at the March Term of Rutland County Court, 1879, this respondent was convicted of selling,.furnishing, and giving away intoxicating liquors. This evidence was offered for the purpose of showing a former conviction as set forth in the complaint. The respondent objected to this evidence upon the ground that the former conviction set forth in the complaint, and offered to be proved by the evidence, occurred more than three years before the making of the complaint in this cause, and that no evidence was admissible under the complaint to show a former conviction. The court overruled the objection and admitted the evidence, to which the respondent excepted. In the case, No. 28, where the respondent was charged with keeping liquors contrary to law, the State introduced evidence tending to show that the respondent shipped liquor to a party in Rutland in a manner similar to that described above in the case of illegal sale of liquor; and that said liquor was seized by the sheriff under a warrant for that purpose at the office of the National Express Co. at Rutland, Yt. The court charged the jury in part: •‘The only ground upon which it is claimed the respondent is not liable, if he sent this liquor here to be delivered to Hopkins, is that it was a sale in New York, a completed sale there, and the title passed to Hopkins when the respondent delivered the liquor to the express company at Whitehall; that the fact that he sent it marked C. O. D., which means to collect on delivery, does not change the character of the transaction; that the sale was just as complete in New York as though the liquor had been sent without any such directions to the express company, or as though the money had been sent with the order, or an absolute credit had been given. If this is the correct view then our law was not violated. The transaction in New York, if it was a complete sale, was a lawful one. But we do not think this is the correct view, and we hold and instruct you that when the respondent sent the liquor with instructions to the express company, to deliver it to the person to whom it was addressed only on being paid for- — or, in other words, not to deliver it unless paid for on delivery — the title remained in O’Neil. It remained his property until delivered to Hopkins. As soon as it passed the line into this State it was O’Neil's liquor in this State. By sending it in response to Hopkins's letter, with the instructions indicated by C. O. D., as testified to by Mr. Barker, the express agent, O’Neil but filled the order conditionally; and the effect of this condition was to keep the title and control of the liquor within himself. If the liquor had been destroyed on the way it would have been his loss, as between him and Hopkins. He, under this condition, was never obliged to deliver the liquor to Hopkins, but after it got here he could have countermanded the delivery to him, and caused it to be delivered to any other person or to be returned to himself. If in response to Hopkins’s letter O’Neil had taken the jug- in his hand and come here with it, with a view of delivering it to Hopkins upon payment, probably no one would say but that at any time previous to the delivery it was his liquor; and if it was his intent to deliver it here, then he was owning and keeping it here with that intent. If instead of coming himself with it he had sent a clerk in his store with it, it would have been just as much his liquor as though he had brought it in person. It would have been his act by his agent. Instead of sending it by his own clerk, he makes the express company his agent to bring it, with precisely the same instructions.” The respondent excepted. The cases involving the seizure and forfeiture of the liquors were heard on an agreed statement. The jugs of liquor were seized by the sheriff while in the possession of the National Express Co., at the railroad depot at Center Rutland. The four jugs were delivered to said company at Troy, N. Y.; and nearly all the others were delivered by said O’Neil at Whitehall, N. Y., to said express company. The persons ordering the liquors ordered them for their own use, and not for sale or distribution contrary to law. The express company had no intention of violating the law. The liquors were shipped in a manner similar to that described above in the case of State v. O'Neil. “ The said liquors were shipped by said Shehan & Co. upon orders of the said consignees therefor, received by them at said Troy by mail, telegraph, or express, and in the method of shipment they pursued the directions of the persons sending said orders, which persons ordered said liquors for their own use, and not for sale or distribution contrary to law. The carrier had no information or notice in respect to the transactions between said Shehan & Co. and said consignees, and the express company and its agents had no intention of violating any law of the State of Vermont, or of aiding said Shehan & Co. in any such violation, and did not suppose or understand that they were doing so. The business of said Shehan & Co., at Troy, was lawful under the laws of the State of New York; and nothing there existed to modify their common law right to call upon common carriers for transportation of their merchandise.” The claimant was accustomed to receive all kinds of goods for transportation on the “ C. O. D.” plan above described. Some of the jugs of liquor were consigned to parties living-in East Dorset and Manchester, towns in Bennington county. The other facts are sufficiently stated in the opinion of the court. To warrant a conviction, the crime must have been committed in the County of Rutland. R. L. ss. 799, 1624, 1627. Every act of the respondent was done in Whitehall, N. Y., and was legal and right where it was done. He did not have any clerk, servant, or agent in Rutland to sell liquors for him. No person appointed by him had any connection with the acts charged to be criminal. The whole contention on the part of the State is to make the respondent constructively present in Rutland selling liquor, and by a fiction make him a criminal. What he did was no crime perse ; and the cases which hold a man responsible in one jurisdiction for acts of innocent agents, where he has contrived and procured them to commit an offense for him, while he remains out of the jurisdiction, do not apply. People v. Adams, 3 Denio, 190; Adams v. People, 1 N. Y. 173. The sales were made by written orders addressed to the respondent at Whitehall, and cannot be held void. Orcutt „v. Nelson, 1 Gray, 537; Packman v. Mussey, 31 Vt. 547; Gay-lord v. Soragen, 32 Yt. 110; Tuttle v. Holland, 43 Yt. 542. An act, legal as a contract, cannot be punished as a crime. The sales were wholly New York transactions, and governed by the laws of New York. McIntyre v. Parks, 3 Met. 207; Pine v. Smith, 11 Gray, 38; Milliken v. Pratt, 125 Mass. 374; Magruder v. Gage, 33 Md. 344; Frank v. Hoey, 128 Mass. 263. When the orders were received and acted upon as they were, the contract became complete at the place where the proposition was accepted. Story Sales, s. 131. Acceptance of the terms of the contract made it complete. The acceptance need not be by words, but any act in compliance with the order is an acceptance. Story Sales, s. 132; Brisban v. Boyd, 4 Paige, 17; Joyce v. Swann, 17 C. B. (N. S.) 84. A delivery by a vendor to a specified carrier, of the goods purchased in pursuance of an order and direction of the purchaser, is in law a delivery to the latter, and ipso facto, an acceptance by him of the property. Glen v. Whitaker, 51 Barb. 451; People v. Haynes, 14 Wend. 547; Whiting v. Farrand, 1 Conn. 60; Bligh v. James, 5 Allen, 106. The goods were delivered to and accepted by the common carrier for transportation; and the carrier was either named by the purchaser, or was the one that the usual course of trade would indicate; and the one in every case that the purchaser intended they should be delivered to for transportation. These facts would sustain a count for goods sold and delivered. Atkinson v. Bell, 2 Mann. & Ry. 292; Thompson v. Maceroni, 3 Barn. & C. 1; Dutton v. Solomonson, 3 Bos. & Pul. 582; Downer v. Thompson, 2 Hill, 137; Grosvenor v. Phillips, 2 Hill, 147; Hague v. Porter, 3 Hill, 141. And this is a delivery sufficient to satisfy the Statute of Frauds. Spencer v. Hale, 30 Vt. 314; Bro.. Fr. s. 327, a. So in the light of the authorities and in the manifest intention of the parties, the goods were sold and delivered in New York; and assumpsit would lie to recover the price. An act cannot be legal and a crime at the same time. Holman v. Johnson, 1 Cowp. 341; Territt v. Bartlett, 21 Vt. 184. The property in and title to the goods passed to the purchaser by virtue of the contract. Delivery of the goods to the buyer is not necessary in order to transfer the title. 2 Add. Con. s. 569; Story Sales, s. 300; Arnold v. Delano, 4 Cush. 33; Joyce v. Adams, 8 N. Y. 291; Parsons v. Dickinson, 11 Pick. 352; Goddard v. Binney, 115 Mass. 450; Meade v. Smith, 16 Conn. 346; Hatch v. Oil 'Company, 100 U. S. 124. The contract was not conditional, but absolute. G. W. B. Co. v. Crouch, 3 H. & N. 183; Hutch. Car. s. 392. The title may pass to the purchaser and the seller retain possession until his lien for the price is discharged. Story Sales, ss. 282, 404: Audenreid v. Randall, 3 Cliff. 99; Gregory v. Morris, 96 U. S. 619 (bk. 24, L. ed. 740); Emery v. Bank, 25 Ohio St. 360. Sending goods marked C. O. D. did not prevent the passing of the title. Higgins v. Murray, 4 Hun, 565. This doctrine is affirmed by the Court of Appeals, and seems to distinctly overrule Baker v. Bourcicault, 1 Daly, 23; Higgins v. Murray, 73 N. Y. 252; 1 Benj. Sales, s. 587. In those cases where it has been held that the title does not pass by reason of some condition attached to the delivery, it will be seen that only the seller can set up that claim. 1 Benj. Sales, ss. 319, 335. The purpose in sending the goods C. O. D. is to preserve the lien. Hutch. Car. s. 390; Meyer v. Lemcke, 31 Ind. 208; Cross v. O'Donnell, 44 N. Y. 661; Gibson v. Ex. Co. 1 Hun, 387. The relation of the carrier to the goods is the same whether he is to collect the price or not. Nollinger v. The Emma, 3 Cent. L. J. 285; Hutch. Car. 392, n. 2; The Hardy, 1 Dill. 460. The express company was a common carrier, exercising its public employment. Am. Ex. Co. v. Lesem, 39 111. 312. Stoppage of the goods in transitu does not rescind the contract of sale. Guilford v. Smith, 30 Vt. 49; Cooper v. Bill, 3 H. & C. 722; Wentworth v. Outhwaite, 10 M. & W. 436; Martindale v. Smith, 1 Q. B. 592; Stanton v. Eager, 16 Pick. 467; Rogers v. Thomas, 20 Conn. 53; Story Sales, s. 320; Newhall v. Vargas, 15 Me. 314; 1 Sm. L. Cas. 1115, 1226. No man can have a lien on his own goods. Story Sales, s. 282; 1 Sm. L. Cas. 1226. See Arnold v. Delano, 4 Cush. 33; Hutch. Car. ss. 390, 420. Intoxicating liquor is as much a subject of sale as other species of property. Howe v. Stewart, 40 Yt. 145. The State cannot prohibit or regulate interstate commerce. R. R. Co. v. Husen, 95 U. S. 465 (bk. 24, L. ed. 527); 1 Rorer Int. St. L. 309. This statute is repugnant to art. 8, U. S. Constitution, and chap. 2, s. 32 Vt. Constitution, in that it allows “ cruel and unusual punishment.” The money penalty in this case is more than three times the limits that can be imposed for misprision of treason, or rape. It is six times as large as any court in Vermont can impose for such high crimes as manslaughter, burglary, forgery, perjury, etc. The situs of the contract was in New Yox'k, where the sale was lawful. Tuttle v. Holland, 43 Vt. 542 ; Backman v. Mussel], 31 Vt. 547; Gaylord v. Soragen, 32 Vt. 110. The liquors were not ordered “ for sale or distribution coxxtrarytolaw.” The transportation was lawfxxl. R. L. s. 3831. It was xxot a crime to buy the liqxxors in New York, as these were, nor for a carrier to brixxg them into this State. R. L. s. 3830. The carrier was bound to protect its possessioxx of the goods. Its title is good agaixxst any pex'son save the real owner. Campbell v. Conner, 70 N. Y. 424. It is difficult to see how it can be said that the liquors were intended for an illegal sale, when, according to the agreed statemexxt, they were xxot ordered for sale “ coxxtrary to law.” The claimant was bound to receive the goods on the C. O. D. plaxx whexx texxdered, for it was accustomed to so receive all the goods for transportation. The contract betweexx the shipper and the carrier was made in New York, and is goverxied by the laws of that State. The vendors could have collected their bills for these goods by an attorxxey. Tuttle v. Holland, supra; Hill v. Spear, 50 N. H. 253; Howe v. Stewart, 40 Vt. 145. But if the collection was legal when made by an attorney, it was so when effected through the expx*ess company. In collecting the bills the compaxxy acted as a commoxx carrier. Hutch. Car. 318; Edw. Bail. s. 007. ' It is doubtful whether this relation can properly be called an agency. If so, it was a mere agency to collect the debt, but not to effect a sale. The company was bound to surrender the goods to vendees. Story Sales, s. 306. In the light of decided cases, the sale was in New York, and the title passed there. Strong v. Dodds, 47 Yt. 348; Merchant v. Chapman, 4 Allen, 364; Blighv. James, 5 Allen, 106; Finch v. Mansfield, 97 Mass. 89; Garland v. Lane, 46 N. H. 245; Milliken v. Pratt, 125 Mass. 374; Frank v. Hoey, 128 Mass. 263; Benj. Sales, ss. 181, 362; 1.2 Allen, 548; 1Ó9 Mass. 50; Spencer v. Hale, 30 Yt. 314. Sales often take place without the right to actual visible possession, and such that an action for goods bargained and sold can be maintained. 1 Chit. PI. 345; Benj. Sales, s. 675; Chit. Cont. (11 ed.) 520, 536; Story Sales, s. 300; Arnoldv. Prout, 51N. H. 587; Bemis v. Morrill, 38 Yt. 153. Certain cases are to be distinguished, as where an article is ordered to be manufactured, etc.; but this case is within none of the exceptions; and, in fact, there was a delivery to the party designated by the vendees, whose receipt of the goods bound them beyond question. Cross v. O’Donnell, 44 N. Y. 661; Benj. Sales, s. 170, note (o), s. 399; Spencer v. Hale, 30 Yt. 314; Wilcox S. P. Co. v. Green, 72 N. Y. 17; Barney v. Brown, 2 Yt. 374; Ang. Car. s. 497; The Mary &.Susan, 1 Wheat. 25 (14 U. S. bk. 4, L. ed. 27); Higgins v. Murray, 73 N. Y. 252; s. G. 4 Hun, 565. The case, therefore, reaches the precise position developed by Benjamin in his lucid exposition of the law concerning sales : ‘‘ There has'been an actual transfer of title, and an actual transfer of the right of possession by the bargain, so that in pleading and for all purposes, save that of the vendor’s lien for the price, the buyer is considered as being in possession by virtue of the general rule of law ‘that the property of personal chattels draws to it the possession.’” Story Sales, s. 281; Benj. Sales, ss. 677, 678; Grice v. Richardson, 24 Moak, 214; Thompson v. Gray, 1 Wheat. 75 (14 U. S. bk. 4, L. ed. 41); see, also, Benj. Sales, ss. 315, 796, 825, 826. In every case of sale unless longer credit is stipulated for, the vendor has a lien upon the article for his pay, so long as he retains possession. This lien is in the nature of a pledge or mortgage. The County Court confounded this vendor’s lien with a conditional sale; whereas the two are totally distinct. In the latter the possession passes without the title; in the former the title passes without the possession. In the case of a conditional sale the vendee takes the property under an agreement that the title shall remain in the vendor until paid for, or some other condition is performed. It is a perversion of law and sense to say that the sede is made over the express company’s counter. The sale is made when there is a mutual assent to agreed terms, intended to bind both sides, and not open to modification. Tarling v. Baxter, 6 B. & C. 360; 1 Chit. Cont. (11th ed.) 517-522; Marble v. Moore, 162 Mass. 443; Willis v. Willis, 6 Dana, 49; Martindale v. Smith, 1 Q. B. 592; Bemis v. Merrill, 38 Yt. 153; Benj. Sales, 288, note (t). That there was a transfer of the property, see Black. Sal. 66, 70, 80, 100, 153; that it vested in the vendee, see Leigh, N. P. 1469; that an action would lie to recover the price, see Slade’s Case, 2 Co. 505; 2 Chit. PL 56; Steph. N. P. 278, 294; Mayne Dam. 88; Sedg. Dam. (2d ed.) 281; Turley v. Bates, 2 Hurl. & C. 200; Bement v. Smith, 15 Wend. 493; Benj. Sales, ss. 308, 315; that the property -was at the risk of the vendee, see Tome v. Dubois, 6 Wall. 553 (73 U. S. bk. 18, L. ed. 946); 1 Chit. Cont. (11th ed.) 518, 526. A binding contract may be made through the mail or telegraph. A proposal to buy, when accepted, binds both parties. Barney v. Bliss, 1D. Chip. 399; Babcock v. Bounell, 80 N. Y. 244; Benj. Sales, ss. 308, 315; Fletcher v. Howard, 2 Aik. 115; Lincoln v. Johnson, 43 Yt. 74; Lanfear v. Sumner, 17 Mass. 110; Bailey v. Smith, 43 N. H. 141; Brooks v. Coquard, 5 McCrary, 588. Eor Yt. cases, see Rob. Dig. 618. Section 2, Acts of 1882, is unconstitutional, in allowing a seizure without a warrant. Art. 11, Const. Yt. There is a right of property in intoxicating liquors. It is not prohibited to our citizens to use liquors, nor to our carriers to transport them. Lincoln v. Smith, 27 Yt. 338; Carrigan v. Ins. Co. 53 Yt. 418; Howesr. Stewart, supra; HarrisonY. Nichols, 31 Yt. 709. There can be no constitutional search or seizure without a judicial warrant. Fisher v. McQerr, 1 Gray, 1, 31; Cooley Con. Lim. (4th ed.) 367, 727; U. S. Const, art. 4, Amend.; State v. Prescott, 27 Yt. 194; Gill v. Parker, 31 Yt. 610; 25 N. H. 542. Congress has exclusive power to regulate commerce among the states. Gibbons v. Ogden, 9 Wheat. 1 (22 U. S. bk. 6, L. ed. 23); Passenger Cases, 7 How. 395 (48 U. S. bk. 12, L. ed. 479); State Freight Tax, 15 Wall. 232 (82 H. S. bk. 21, L. ed. 146); Henderson v. Mayor of N. Y. 92 U. S. 259; Chy Lung v. Freeman, Id. 275; People v. Compagnie Genérale Transatlantique, 107 U. S. 59. A statute that should forbid express companies to bring any goods into Yermont, C. O. D., would be clearly void. Just so a statute forbidding any particular kind of goods to be introduced, would be equally void. “Where goods are delivered by a vendor to a common carrier, consigned to the vendee, the question whether the title thereby passes from the vendor to the vendee, depends upon the intention of the vendor, which intention is to be gathered from all the circumstances of the transaction. * * * If the vendor, however, in making the consignment and delivering the goods to the carrier does not intend to part with his title to or control over them, the carrier must "be regarded as the agent of the consignor and not of the consignee.” Emery’s Sons v. Bank, 25 Ohio St. 3C0. Thus, in New York, it makes no difference that the goods sold have been sent by a particular carrier, named by the buyer, if the carrier is instructed by the seller that the goods are to be paid for on delivery. In such cases the carrier becomes the seller’s agent. Baker v. Bourcicault, 1 Daly, 23. And when the delivery and payment of the price are to be simultaneous acts, the title until delivery or payment remains in the seller. Ferguson v. Clifford, 37 N. H. 87; Kelley v. Upton, 5 Duer, 336; Benedict v. Field, 16 N. Y. 595; Conicay v. Bush, 4 Barb. 564; Benj. Sales, ss. 398, 399. Even the delivery of the goods on a sale, with the expectation of receiving immediate payment, is not an absolute delivery, and no title vests in the purchaser until the price is paid, or payment waived. Adams v. O'Connor, 100 Mass. 515; Tyler v. Freeman, 3 Cush. 261; Whitney v. Eaton, 15 Gray, 225; Farloiv v. Ellis, 15 Gray, 229. See Herrick v. Gallagher, CO Barb. 578; Wagner v. Hallack, 3 Col. 184; Adams v. O'Connor, supra; Benj. Sales, s. 320; Beauchamp v. Archer, 58 Oal. 431; E. & F. H. R. R. Co. v. Elivin, 84 Ind. 457; Clark v. Hayward, 51 Yt. 14. A conditional assignment and delivery of goods to carrier does not vest the title in the consignee until performance of the condition, though the goods were shipped in pursuance of a prior agreement upon a good consideration. Kelly v. Deming, 2 McCrary, 453; Osborn v. Gautz, 60 N. Y. 540; 80 111. 511; Bank v. Daniels, 47 N. Y. 631; Bank v. Jones, 4 N. Y. 497; Kinsey v. Leggett, 71 N. Y. 387; Smith v. Hynes, 5 N. Y. 41; Russell v. Minor, 22 Wend. 659; Keeler v. Field, 1 Paige, 312; Haggerty v. Falmer, 6 Johns. Ch. 437; Banker. Wright, 48 N. Y. 1; Allen v. Williams, 12 Pick. 297; Pierson v. Hoag, 47 Barb. 243; N. Y. Guaranty Co. v. Flynn, 55 N. Y. 653; Lees v. Richardson, 2 Hilton (N. Y.) 164;' Scuclder v. Bradbury, 106 Mass. 422; Whitwell v. Vincent, 4 Pick. 451; Dresser Mfg. Co. v. Waterston, 3 Met. 9; Hill v. Freeman, 3 Cush. 257; Hammett v. Linneman, 48 N. Y. 399; Barrett v. Qoclclard, 3 Mason, 111; Stollenwerck v. Thacher, 115 Mass. 224; Armourv. Pecker, 123 Mass. 143; Solomons. Hathaway, 126 Mass. 482; Kenney v. Ingalls, 126 Mass. 4, 8; Hirschorn v. Canney, 98 Mass. 149; Riaic v. Comings, 28 Yt. 508; Benj. Sales, s. 320, note (cl); Winter v. Goii, 7 N. Y. 288; Gooclall v. Skelton, 2 H. Bl. 316; Boulter v. Arnott, 1 Cromp. & M. 333; Benj. Sales, s. 693; Clark v. Lynch, 4 Daly, 83. . The express company acted as the agent of the respondent. 121 Mass. 40; Schoul. Per. Prop. 291; 52 Cal. 475; Benj. Sales, 320; Reynolds v. B. &. M. R. R. 43 N. H. 580. An order by letter, telegram, or express is simply an offer which may be withdrawn at any time before acceptance, and the bargain is not completed Until acceptance. 1 Pars. Cont. 483, 525; Benj. Sales, s. 398; Hutch. Car. s. 393; Lyons v. Hill, 40 N. H. 49. O'Neil did not in any instance accept the order so as to complete the contract for sale. The delivery to the express company, to be delivered to the purchaser only upon payment of the price, and under the conditions stated, constituted the express company the agent of O’Neil, and the contract was finally completed in Vermont. Taylor v. Jones, 16 Moak Eng. Rep. 437. The illegal acts complained of in this case are sales of intoxicating liquor in Vermont, and not contracts for such sales. The contracts for sales, if any, in this case being executory, the sales were completed in Vermont by delivery of the liquors and receipts of payment therefor by the express company the agent of O’Neil. State v. Comings, 28 Vt. 508. The Act, No. 43 of 1882, is constitutional. Spalding v. Preston, 21 Vt. 9; Lincoln v. Smith, 27 Vt. 337; Gill v. Parker, 31 Vt. 610; State v. Lovell, 47 Vt. 493; Stale v. Intox. Liq. 55 Vt. 82; Thorpe v. R. R. Co. 27 Vt. 140; Pott. Dwarris, c. 14; Cooley Con. Lim. 714. Article II. of the Constitution is directed against general warrants. Redeield, Ch. J., in In re Powers, 25 Vt. 265; Pott. Dwarris, 450; Varick v. Smith, 9 Paige, 547; Cooley Const. Lim. 368; 2 May’s Const. Hist, of England, 245; 4 Bancroft's Hist. U. S. 414. The Massachusetts Constitution contains a provision similar to ours in regard to seizures and searches without warrant, and the Supreme Court of Massachusetts has held that the statute is constitutional which authorizes “ officers without a warrant to arrest any person found in the act of illegally selling or transporting intoxicating liquors-, and seize the liquors, vessels, and implements of sale in the possession of such person, and detain them in some place of safe keeping until warrants can be procured for the trial of the person and the seizure of the liquors.” Jones v. Root, 6 Gray, 435; Mason v. Lathrop, 7 Gray, 354; Smith v. Maryland, 18 How. 71; (59 U. S. bk. 15, L. ed. 269); U. S. v. Coombs, 12 Pet. 72 (37 U. S. bk. 9, L. ed. 1004); Cooley Con. Lim. 220; Fletcher v. Peck, 6 Cranch, 128 (10 U. S. bk. 3, L. ed. —); License Cases, 5 How. 577 (46 U. S. bk. 12, L. ed. 289); Commonwealth v. Blood, 11 Gray, 74; Commonwealth v. Intox. Liquors, 122 Mass. 36; Commonwealth v. Twombly, 119 Mass. 104; State v. Intox. Liquors, 44 Vt. 208.
58 Vt. 166Ottaquechee Savings Bank v. Benjamin L. (1885)
In Chancery to foreclose a mortgage and redeem. Heard on petition,, answer of Nathan L. Holt, and master’s report, December Term,, 1884, Windsor County, Powers, Chancellor. Taken as confessed by Benjamin L. and Truman R. Holt. The court decreed pro forma, and without hearing, that the petitioner pay to Nathan L. Holt, the sum found due him on notes of Benjamin L. Holt by the 'master, $1,487.09; and that the petitioner have, foreclosure against Benjamin L. and Truman R. Holt. On the 26th day of March, 1867, Benjamin L. Holt mortgaged his farm to his fathei', Nathan Holt, conditioned: “Provided, nevertheless, that if the said Benjamin L. Holt shall furnish suitable food, drink and medicine, clothing, etc., * * * necessary for the support and comfort of the said Nathan Holt and my. sister, Louisa, according to their degree, etc., * * * during the remainder of their natural lives, etc., * * * and perform all and singular the several covenants herein contained, then this deed to become null and void, otherwise to be and remain in full force.” The master found said Nathan was about 80 years old; that said Louisa was subject to fits, and incapable of taking care of herself; that the consideration paid for the support was $2,000; that the mortgage was duly recorded in the town clerk’s office the same day that it was executed, March 26, 1867; that Benjamin L. supported his said father and sister till a different arrangement was made for their support between Benjamin and Nathan L. Holt, a brother of said Benjamin, in 1871, at the request and approval of their said father; that prior to June 28, 1871, said Nathan had made known to Nathan L. his dissatisfaction with the support furnished himself and Louisa; that on the said 28th day, the said Nathan L. and his son, Herman Holt, went to said Benjamin’s house, and proposed that the father and sister should live with said Nathan L.; that Benjamin, being willing to support them, did not at first assent to this; that the said Herman told him if he did not, that the mortgage would be foreclosed, etc.; that he further told Benjamin that he wished to go and live with his son, Nathan L.; that at this time finally an agreement was made between Benjamin L. and Nathan L., with the approval of their father, that he and Louisa were to live with Nathan L., and be supported by him, according to the conditions of the mortgage, and that Benjamin L. was to pay him “ what was right for it.” At this time the said. Benjamin L., signed a writing by which he agreed that the said Nathan might transfer the said mortgage to said Nathan L. Holt, in consideration of his promise to support. On the 5th day of July following, Benjamin L. had an interview with his father, the result of which was, that he told Benjamin that he might inform Nathan L. that he had concluded not to go away from Benjamin’s. On the same day Benjamin L. reported what his father had said, and notified Nathan L. that he declined to go on with the contract. Immediately said Herman, with the approval of his father, Nathan L., went to Benjamin’s house, and in his absence, took away the said Nathan and Louisa; but the master found that he was satisfied that they were willing to go. On the 6th day of July, 1871, the said Nathan assigned the mortgage in due form to Nathan L., and the assignment on the same day was properly recorded. Benjamin L. was not present, but sometime afterwards he knew of it, and went on and. negotiated with Nathan L. as to the support of their father and said Louisa, with the understanding that he was to have the benefit of the mortgage. They failed to agree as to the price, and chose arbitrators to decide. One of the arbitrators was N. T. Churchill, who was president of the said Ottaquechee Savings Bank from 1870 to 1876. Both Nathan L. and Benjamin L. notified said Churchill of the subject matter of the difference between them, which they had agreed to submit to him. On November 2, 1872, said Benjamin L. Holt executed to the orator a mortgage on the farm covered by the first mentioned mortgage. The bank mortgage was conditioned for the payment of $2,000. The business as to this loan and taking the mortgage was done principally with said Churchill, who was notified by said Benjamin of the first mortgage. The other officers did not know of it. The arbitrators were not called out; and on March 14,1873, Nathan L. and Benjamin met and agreed on the sum to be paid for the support of their father and sister, namely; $1,750. Two notes of $550 and $1,200 were given at this time, dated back to July 1, 1871, and payable respectively, April 1, 1875, and April 1, 1878. A writing was attached to each note and signed by Benjamin L. Holt, stating that the notes were given “in full for the support of Nathan Holt and Louisa Holt, and when both are paid the mortgage securing said support is to be immediately discharged.” A memorandum of the notes and writings was indorsed on the back of the mortgage and recorded in the town clerk’s office, on March 18, 1873. The master also found that the father and sister lived several years, and were supported by said Nathan L. according to the terms of the mortgage; that it “ was reasonably worth” $2.75 per week each to support them, amounting to $1,537.87; that payments had been made by Benjamin L. and the balance due Nathan L. on the notes was $1,487.09; Nathan L. Holt cannot set up the mortgage as an encumbrance. The condition was personal, to be performed by the mortgagor, Benj. L. The assignment was of no validity. 1 Jones Mort. s. 388; Flanders v. Lamphear, 9 N. H. 201; Rhodes v. Parker, 10 N. H. 83; Bethlehem v. Annis, 40 N. H. 34; Eastman v. Batchelder, 30 N. H. 141; Bryant v. Erskine, 55 Me. 153. Benjamin L. being willing to support, there was no breach of the condition. Jones Mort. s. 391; Jenkins v. Stetson, 9 Allen, 129; Thayer v. Richards, 19 Pick. 398. See 10 Mich. 455. In any event, the mortgage can be a security for only what it was reasonably worth to support them. Jones Mort. s. 361; 7-Johns. Ch. 15; Gardner v. Emerson, 40 111. 296. See 10 Me. 292; 57 Me. 322. The mortgagor was bound to furnish support at any reasonable place the mortgagee' might select. 1 Jones Mort. s. 388; Lanfair v. Lanfair, 18 Pick. 299; 2 Wash. Real Prop. 71; Wilder v. Whittemore,, 15 Mass. 262; Pettee v. Case, 2 Allen,, 548; Austin v. Austin, 9 Yt. 420; 1 Hill. Mort. 3; Wright v. Wright, 49 Mich. 624.. Giving the two notes did not affect the mortgage. Seymour v. Narrow, 31 Yt. 122; Bice v. Clark, 10 Met. 500. The assignee could perform the condition in the mortgage. 2 Story Eq. s., 1018; 1 Hill.. Mort. 501; 4 Kent Com. 142; Morrill v. Morrill, 53 Yt. 74; 1 Jones Mort. 803;, 2 Wash. .Real Prop. 66; Joslyn v. Parlin, 54 Yt. 670. A mortgage to secure an. unliquidated debt is valid. Stoughton v. Pasco, 5 Conn. 442. The debt need not be fully stated. 7 Cranch (11 U. S.), 36; P. Savings Bank v. First Nat. Bank, 53 Yt. 82; Hurd v. Robinson, 11 Ohio St. 232. The bank had notice.
58 Vt. 172Hubbard v. Bugbee (1885)
Assumpsit, general and special. Heard on the report of a referee, December Term, 1883, Caledonia County, Ross, J., presiding. Judgment for the defendant. The special.count set up the material facts, averred that the defendant had a separate estate, created the debt on its faith and credit, and when discovert promised to pay it. Fleas, general issue, Statute of Limitations and coverture at the time of making the alleged promises.
58 Vt. 181Rea v. Harrington (1885)
Action for slander. Plea, not guilty. Trial by jury, December Term, 1883, Caledonia County, Ross, J., presiding. Judgment on verdict of guilty.
58 Vt. 192Spiritual Atheneum Society v. Selectmen of Randolph (1885)
Petition for mandamus. The petition set forth, in part, that the petitioner was a religious society, organized according to law for the purpose of supporting the gospel and maintenance of public worship, located and holding regular meetings for the purpose aforesaid in the village of West Randolph. The articles of association were also set out, commencing: “ Spiritual Atheneum Society.
58 Vt. 194Burnham v. Town of Strafford (1885)
 Evidence. Book of Account. Collateral Fact. The question was, whether the plaintiff while selectman borrowed and paid to the defendant’s treasurer, for its benefit, the sum of $800. The treasurer denied it, and, to strengthen his testimony, his book of accounts was introduced, on which there was no entry of such payment; Held, that evidence was not admissible in rebuttal to prove other discrepancies in the treasurer’s accounts independent of, and collateral to, the question in issue.
58 Vt. 198Bridgman v. St. Johnsbury & Lake Champlain R. R. (1885)
Bill in equity to foreclose a lien on land, taken by a railroad company. Heard on demurrer, December Term, 1884, Caledonia County, Ross, Chancellor. Bill dismissed. The orators were Daniel W. A. Bridgman, administrator of Harriet W. Bridgman’s estate, Daniel W. A. Bridgman, Helen A. Holton, Ina M. Bridgman, Ida E. Bridgman, and Luke P. Poland. The bill alleged, in substance, that one Russell Bridgman, deceased, was at the time of his death the owner of certain real estate in Hardwick; that he died intestate, leaving the following heirs to his estate: His wife, Harriet W. Bridgman, who died on or about the first of January, 1884, and upon whose estate Daniel W. A. Bridgman was duly appointed administrator; Frederick T. Bridgman, Helen A. Holton, Hattie W. Bridgman, Ina M. Bridgman, Ida E. Bridgman, and D. W. A. Bridgman; that the aforesaid heirs of said Russell Bridgman have been and are now the sole owners of the aforesaid real estate, with the exception of said Frederick T. Bridgman, whose interest has been sold, conveyed, and assigned to Luke P. Poland; that Hattie W. Bridgman deceased on the first day of January, 1880; that said Hattie died without issue and upon whose estate no administration has ever been had, she not being indebted to any one at the time of her decease; that said Harriet W. Bridgman, Frederick T. Bridgman, Daniel W. A. Bridgman, Ina M. Bridgman, and Ida E. Bridgman were her only heirs, and that they as such became the sole owners of the estate of said Hattie; that said real estate consisted of a valuable farm in the Village of South Hardwick, Vt., with a pasture, meadow of about thirty acres, a building lot on one of the main streets of said village, building, etc.; that a certain railroad corporation then having a legal existence and known as the Lamoille Valley Railroad Company, about the year 1871 laid out and built a railroad through the said village; that in the construction of said railroad, said corporation, without right, title, permission, or license from any of the said heirs, entered upon the said real estate and built a railroad across said land; that ever since, the said corporation or its successors have wrongfully occupied said land and kept the said heirs from the use thereof; that said corporation continued to run and manage said railroad line till about December 1, 1877, when said corporation became and was insolvent and unable to pay its debts, and receivers were duly appointed; that said receivers managed said railroad until about July, 1880; that on the 2d of May, 1876, the said heirs commenced their action at law against said corporation to recover their damages for the taking of said land; that said suit was duly prosecuted, and such proceedings were had thereon at the June Term, 1877, of the Caledonia County Court that judgment was rendered against said corporation and the damages were assessed at the sum of $968.60; that said judgment has not been paid; that the said Lamoille Valley Railroad Company was merged with some other corporations about the first of July, 1880, into a new corporation under the name of the St. Johnsbury & Lake Champlain R. R. Co., the defendant; that neither corporation ever had any right or title to said real estate and that they have been occupying the same in their own wrong and that neither have ever paid or caused to be paid the said judgment or in any way paid or offered to pay any remuneration for said land; and that the same was damaged at the time of the taking aforesaid to the amount of more than $1,000. It was alleged that the orators “Knew the said Lamoille Valley Railroad was building its said road over their said land, and that they took no steps to prevent it from building- its said railroad; and they knew that the defendant was running its cars over said road on their said land, and they have never forbidden them or either of them from so doing, or have never taken any steps to prevent them from so doing, but they have relied upon the lien upon the said land for said damages.” The prayer was that the defendant be ordered to pay the amount of said judgment as land damages, and, in default thereof, that the defendant be foreclosed from all right in said land. The orators had an equitable lien on the land, which a Court .of Chancery will enforce. Kittell v. B. B. Co. 56 Yt. 96'; Kenclall v. B. B. Cos. 55 Yt. 438; Adams v. B. B. Cos. 57 Yt. 240. The judgment rendered against the Lamoille Yalley R. R. Co. does not affect the orator’s lien. Boot v. Lord, 23 Yt. 568; Buffalo, N. Y. & Phila. B. B. Co. v. Harvey, 18 Reporter, 734; Matthews v. Lueia, 55 Yt. 308; Child v. Allen, 33 Yt. 476; Williams v. B. B. Co. 60 Miss. 689. The lien is enforceable against any party who claims under the party that made the entry. Pierce R. R. 167; Gil-man v. B. B. Co. 40 Wis. 653; W. P. B. B. Co. v. Johnston, 59 Pa. St. 290; Drury v. Midland B B Co. 127 Mass. 571. The judgment rendered against the Lamoille Y. R. R. Co. is conclusive as to the amount against the defendant. Kit-tell v. B. B. Co. supra; Pfeifer v. 8. & F. B. B. Co. 18 Wis. 155; N. Y. & G. L. B. B. Co. v. Stanley, 34 N. J. Eq. 55; Gilman v. B. B. Co. 37 Wis. 317. The L. Y. R. R. Co. should have been made defendant. That company is yet in existence; and the question of inter- • est on the damages affects it. Adams v. B. B. Cos. 57 Yt. 240. The assignee of Frederick T. should have been made an orator. Judge Poland had no interest in the land at the time this suit was begun, and is not properly joined. The administrator of Hattie should have been made co-orator. Her heirs cannot legally represent her interest in damages. Hurelta M. Co. v. Lamson, 47 Yt. 430; Pierce R. R. 185; Moore v. Boston, 8 Cush. 274; Hotchkiss v. B. B. Co. 36 Barb. 600-612; Die. Par. 212. ■ At the June Term, 1877, certain parties obtained judgment in an action at law against the L. Y. R. R. Co. for their full damages, and the same was, at the time this suit begun, in full force. The judgment merged the claim for damages. Lang don v. Paul, 20 Vt. 220; Palmer v. Preston, 45 Vt. 154; Green v. Starr, 52 Vt. 426; Conway v. Seamons, 55 Vt. 8; Ereem. Judg. s. 217; Harris v. Alcock, 10 Gill. & J. 226; Pike v. McDonald, 32 Me. 418; Winston v. Westfeldt, 22 Ala. 760. Damages for separate trespass for one of two defendants cannot be included in a joint judgment against both. Symonds v. Hall, 37 Me. 354; Vose v. Morton, 4 Cush. 27; Drane v. Gunymere, 12 Rep. 627. The present company could have had no notice of the suit and judgment against L. V. R. R. Co. The defendant had no existence when the judgment was rendered. The old company is still liable; hence, the defendant is not. Quimby v. Hazen, 54 Vt. 132; Ereem. Judg. ss. 162, 249; Knapp v. McAuley, 39 Vt. 275. Under the decisions of this court, after an entry upon land by a railroad company, without consent of the land-owner, and after an acquiescence by the owner, in the occupation by the railroad, the land-owner cannot bring his action at law; but must resort to equity. Western Vt. B. B. Co. v. McAuley, 39 Vt. 275; Kittell v. B. B. Co. 56 Vt. 96. In Maine, where it is held trespass will lie against a railroad company where the facts were like the one at bar — the Statute of Limitation has been applied, in that case six years. 72 Me. 95; Pierce R. R. 179, 209, 219. Buller’s Nisi Prius, p. 232, reads thus: “ If there be a recovery by verdict against the tenant for life, this is no evidence against the reversion,” etc. The same doctrine is held in Adams v. Butts, 9' Conn. 79; Detvsick v. Migatt, 18 111. 46; McConnell v. Smith, 23 111. 611; Howe v. Chesley, 56 Vt. 727.
58 Vt. 207In re Snell (1885)
Habeas Corpus. The petition was brought before Veazey, J., and was continued and heard at the General Term, 1885. The petitioner set forth, that he was imprisoned in the county jail by virtue of a mittimus issued by a justice of the peace; and that he had been complained against by a special prosecutor.
58 Vt. 212Town of Tunbridge v. Town of Royalton (1885)
Petitions to the Supreme Court of Orange County. The petition was signed. “Town of Chelsea, by its attorney, S. B. Hebard.”
58 Vt. 214Carpenter v. Town of Corinth (1885)
Action to recover for injuries- alleged to have been occasioned by the insufficiency of a highway. Trial by juryr June Term, 1884, Orange-County, Rowell, J., presiding. Judgment for the defendant.
58 Vt. 217Canfield v. Hard (1885)
Ejectment. Plea, general issue. Trial by jury, June Term, 1883, Bennington County, Yeazey, J., presiding. Judgment on verdict for the defendant. The plaintiff’s evidence tended to show that Levine Hard mortgaged his farm to him and his brother in 1871, and also, a few days later, to one Montgomery; that said Montgomery foreclosed his mortgage, and on July 21, 1879, conveyed the premises to the plaintiff; that pending said foreclosure proceedings, said Levine conveyed said farm to Mary Houston; that in April, 1880, the plaintiff rented the demanded premises to the defendant for one year, and that the letting was renewed the next year; and that the premises in question were á part of said farm. The defendant’s claims and evidence are sufficiently stated in the opinion of the court. The plaintiff, in rebuttal, offered evidence tending to show that said defendant’s occupation of said premises was not adverse to the said Levine, but by his permission; and that the defendant did not treat nor claim said premises as his own private property; that when the plaintiff, in 1879, was about to buy the Montgomery title, he applied to the said Levine to know if the defendant had any claim or right in said premises, and that afterwards the defendant came to the plaintiff and stated that he did not make any claim thereto, and also sent word to the same effect. The plaintiff also introduced a deed from the said defendant to said Mary Houston, dated November 19, 1879, and one from said Mary Houston to the plaintiff, dated September 14', 1880. The plaintiff’s 13th, 14th, and 15th requests to the court to charge the jury, in substance, were: that if the jury find that the defendant was holding in July, 1879, adversely to the Montgomery mortgage, it would not be the duty of the. plaintiff, when buying that mortgage, to do more than make reasonable inquiry of the defendant as to the terms of his possession; that the plaintiff is chargeable, not with what the defendant now claims, but with what the plaintiff would have learned by such inquiry in 1879; that if the plaintiff at that time would not have learned by reasonable inquiry of the defendant that he was holding adversely to the Montgomery mortgage, then the plaintiff was not 'chargeable with notice of the defendant’s claims. The court erred in refusing the plaintiff’s 13th, 14th, and 15th requests, which were, in substance, that if the defendant was holding adversely in 1879 to the Montgomery mortgage, it was the duty of the plaintiff to only make reasonable inquiry of the defendant as to the terms of his possession; and that plaintiff is chargeable by reason of such possession, not with what the defendant now claims, but with what the plaintiff would then have learned. The question is: Did the plaintiff make reasonable inquiry? Savings Bank v. National Bank, 53 Yt. 89; Seymour v. Barrow, 31 Yt. 139; Stafford v. Ballou, 17 Yt. 329; Blaisdell v. Stevens, 16 Yt. 186. Open, exclusive possession is sufficient to put the purchaser on inquiry; Shaw v. Beebe, 35 Yt. 205; but this possession was not such as to render this mortgage void. Bip■ley v. Yale, 18 Yt. 220; S. G. 19 Yt. 156. The defendant’s homestead interest could not attach until the expiration of fifteen years. His evidence tends to show nothing more than a parol gift of the land. A court of equity will not enforce a voluntary agreement. Antrobus v. Smith, 12 Yes. Jr. 39; Edwards v. Jones, 1 Mylne & C: 220; Meek v. Kettlewell, 1 Hare, 464; Taylor v. Staples, 8 R. I. 170. The fact that the defendant made improvements does not help the case towards an’equitable ownership. Pinckard v. Pinckard's Heirs & Adm'rs, 23 Ala. 649; BeVeaux v. BeVeaux, 1 Strob. Eq. 283; Rucker v. Abell, 8 B. Mon. 566; Boze v. Davis, 14 Tex. 331. Some of the cases hold that the donee has an equitable lien for what he has expended; but there can be no homestead in such lien. Possession under a contract not enforceable in equity is not adverse. Briggs v. Brosser, 14 Wend. 227; Jackson v. Johnson, 5 Cow. 74. At all events, the plaintiff can recover the excess above the homestead. Fvarts v. Dunton, Brayt. 67; 1 Burr. 329; Guy v. Rand, Cro. Eliz. 13. The consideration for the land on which the house was erected, was the removal of the defendant to it, and taking a permanent interest in the father’s business. Lasting improvements were made on the land. A court of equity would have decreed specific performance. Story Eq. s. 761; Brown Eixt. s. 487; Adams v. Rockwell, 16 Wend. 285; Harder v. Harder, 2 Sandf. 17; Stark v. Wilder, 36 Yt. 752; Griffith v. Abbott, 56 Yt. 356; Holmes'v. Caden, 57 Yt. 111. A parol promise to “give” land, accompanied with possession and with substantial improvements, will be enforced in equity. Freeman v. Freeman, 43 N. Y. 34; Hardesty v. Richardson, 44 Md. 617. In such case the land is treated precisely as if the conveyance had been made. Story Eq. 790; Huffman v. Hummer, 2 C. E. Green, 263; Worrall v. Munn, 38 N. Y. .137; Seton v. Slade, 7 Yes. Jr. 264. The defendant had a homestead in the premises, which could not be lost by any statement, or acknowledgment of tenancy, or by his deed, unless his wife joined. R. L. s. 1904; Abell v. Lathrop, 47 Yt. 375; Whiteman v. Field, 53 Yt. 554; McClary v. Bixby, 36 Yt. 254; Jewett v. Guyer, 38 Yt. 218; Danforth v. Be.attie, 43 Vt. 138. Certainly the defendant had an equitable interest in this land, as soon as he completed his house; and one may have a homestead right in such interest. Morgan v. Stearns, 41 Yt. 398; Doane’s Exr. v. Doane, 4G Yt. 485. The plaintiff could not recover the excess above the homestead. Pardee v. Lindley, 31 111. 174. The mortgage was void as to the defendants. Stevens v. Whitcomb, 16 Vt. 121; Bipley v. Tale, 19 Yt. 156. The plaintiff was put upon inquiry; and took his deed subject to- the rights of the party in possession. McDaniels v. Flower Brook Mfg. Co. 22 Yt. 274; Stevens v. Goodenough, 20 Yt. 676; Pope v. Henry, 24 Yt. 560; Sellick v. Starr, 5 Yt. 255.
58 Vt. 229Continental Life Ins. v. Currier (1885)
Bill in Chancery. Heard on a master’s report, March Term, 1885, Washington County, Powers, Chancellor. Bill dismissed. The suit at law, John Curriers. Continental Life Ins. Co., is reported in 57 Vt. 496. That case was an action of assumpsit brought upon the same policy of insurance which is the subject matter of this litigation. In that case the defendant pleaded the general issue, tender, and offset.
58 Vt. 234Central Vermont Railroad v. Town of Royalton (1885)
Bill in Chancery. Heard on bill, answer and agreed statement, September Term, 1884, Franklin County, Royce, Chancellor. Decree pro forma, and without hearing, that the bill be dismissed.
58 Vt. 244Carpenter v. Gleason (1885)
[In Chancery.] Mortgage Oioned by Several Parties. Tenants in Common., Merger. The orator owned several notes and the defendant several, all signed by the same party and secured by the same mortgage on premises encumbered by a prior mortgage. The orator became the owner of the prior mortgage, and brought a bill to foreclose this only, and obtained a decree, which was paid by the defendant, who also purchased the equity of redemption for the benefit of all parties, and with the intention of keeping the mortgage on foot. A bill having been brought to foreclose the second mortgage; Held, (1) that the defendant could set up the same subject-matter as a defence in this suit that he did in the first one; (2) that the orators and the defendant are tenants in common, and the former are not entitled to a decree; (3) that the purchase of the equity did not operate to merge the mortgage.
58 Vt. 248Atkins v. Sherbino (1885)
Assumpsit. Heard on a referee’s report, March Term, 1885, Washington County, Powers, J., presiding. Judgment pro forma for the plaintiff. The action was brought to recover the wages for the work of the plaintiff’s minor son.
58 Vt. 253Bruce v. Continental Life Insurance (1885)
Bill in Chancery. Heard on the report of a special master, June Term, 1885, Caledonia County, Ross, Chancellor.
58 Vt. 261Brock v. Bruce (1885)
Assumpsit, under the statute, to recover a school tax. Plea, general issue, trial by jury, June Term, 1884, Caledonia County, Ross, J., presiding. Verdict ordered for the defendant. The plaintiff offered to prove by Stoddard, a witness referred to in the opinion, that, as attorney for the plaintiff and just before he brought this suit, he saw Bruce and told him that.he had better pay this tax; that Bruce refused to pay it and said he never would.
58 Vt. 271Battell v. Matot (1885)
Bill in Chancery. The cause and cross-cause were heard on a master’s report, December Term, 1884, Addison County, Veazey, Chancellor. Decree pro forma, and without hearing, that the orator is entitled to a decree according to the prayer of his bill; and that the cross-bill of said Matot be dismissed. The bill was sworn to July 21, 1882; and avers, that on June 7, 1882, one Treadway was the owner of 138£ acres of land situated in Middlebury, and conveyed the same to the orator; that upon a considerable portion of said land is a growth of trees suitable for wood, etc.; that “said land adjoins the home premises of the orator, and from its location and the growth of trees upon it considerably enhances the beauty, attractiveness, and value of the orator’s homestead”; “that said John Matot and said Treadway, sometime in the spring of 1882, and previous to said conveyance, entered into a verbal contract which was never reduced to writing in any form, whereby the said Tread-way sold or agreed to sell to the said Matot all the standing trees, wood, and lumber on said land, to be removed within two years, for the sum of $1,400, to be paid therefor by the said defendant, and the payment of which was to be secured in some way by the said defendant. As to the precise method of security the orator cannot positively say, though he is informed and believes that it was to be by some sort of a guaranty from the Vermont Central R. R. Co., to which it was contemplated at the time of said sale from Treadway to the defendant the wood so to be taken from said land would be delivered by the defendant; of which contract the orator had notice pi’evious to his purchase of said land.” It also avers, that the defendant had cut about 200 cords of wood on said land; that he claims under said contract to be the owner of the wood and standing trees on the land; that he is insolvent; that if he should cut' the rest of the trees the injury would be irreparable to the orator; “that said contract, even if proper security for the payment of the $1,400 had been furnished, invests the defendant with no title to or legal interest in the trees uncut and standing upon said land but the orator is informed and believes that defendant, though often requested, has never furnished the security agreed upon, and the orator so understood when he purchased from Treadway; ” “ that at the time of said conveyance and as part of the same transaction, Treadway assigned to the orator his interest in said contract, and the orator bound himself in substance to indemnify Treadway against all damages resulting from said assignment/’ the prayer was for an injunction restraining the defendant, his servants, etc., from cutting the growing timber on said land. A temporary injunction was granted by Chancellor Taft August 7, and served August 10, 1882. The answer, filed November 4, 1882, admits, that Tread-way owned said land, and conveyed it to the orator on June 7, 1882; and avers that the defendant, about April 1, 1882, entered into a contract for the purchase of said wood, or trees, in substance as follows: Defendant was to pay Treadway $1,400 for all the trees on said lot, with the right to cut and remove the same within two years; the payment to be secured by the retention by the railroad company of $1.50 per cord, to be paid to Treadway until said $1,400 were fully paid. Avers that defendant obtained from the wood agent of the railroad company a letter which he delivered to Treadway, and which was satisfactory to him so far as defendant knew; that Treadway was in poor health and the contract was not at the time reduced to writing; but Treadway retained the letter and directed defendant to proceed with his cutting, etc., which defendant did, relying on said verbal contract and the promise of Treadway to execute a written contract, and continued his work until enjoined, June 9, 1882; that the contract was a valuable one; that when the orator took his conveyance he had notice of said contract; and that defendant was in possession; that the orator attempted to purchase the defendant’s rights under the contract; that he indemnified Tread-way against defendant’s claims; that he received said letter from Treadway, and became entitled to said $1,400 to be paid by defendant. It also avers, that defendant understands that the orator claims said contract to be void under the Statute of Frauds, and that he purchased with a view of asserting such claim; but says that it is not; and if otherwise held, claims that the instruments o"f conveyance and indemnity constitute a sufficient written memorandum to satisfy the requirements of the statute; and if otherwise held, claims to be entitled to assistance of court to have proper writing executed. Claims the right to continue cutting said trees; and avers that he made a contract with said railroad company which secured said $1,400 to Treadway in the manner agreed upon, which was all the security Tread-way ever demanded, and which was available to the orator; that on June 8, 1882, the orator brought a bill in this court against defendant, complaining and praying substantially as in his present bill; that he obtained an injunction thereon from Chancellor Veazey; that the same was served on defendant; that defendant made answer substantially as in this suit, and on July 4, 1882, moved to dissolve said injunction, which motion was granted; that when the bill in the present case was served a notice of discontinuance of the former case was also delivered to defendant but no order of discontinuance has ever been made, and the said former case is still pending and is a bar to the present suit. John Matot brought a cross-bill at the December Term, 1883, against said Battell and Freeman G. Wright, admin - istrator of said Treadway’s estate. The averments in the cross-bill were substantially like those in his said answer. The prayer was for specific performance, for injunction, and for damages. At the June Term, 1883, the defendant made a motion to dissolve the injunction granted by Chancellor Taft, and that the orator be ordered to file in court his former bill of complaint. The court overruled that part of the motion relating to the dissolution of the injunction, and overruled that part of the motion relating to the former bill on terms as to cost. The costs were paid and the suit was not entered. The master found: That said Treadway in March, 1882, owned said land; that Matot had for many years been engaged in getting out wood for the railroad; that about this time he saw N. F. Clark, wood agent for the railroad, respecting the sale and delivery to the railroad of the wood on this land; that nothing definite was agreed upon except the prices to be paid, provided defendant could make satisfactory arrangements for purchase with Treadway. “ Shortly afterward Matot made an oral contract with Treadway to purchase of him all the standing trees upon said lot, to be removed within two years, for the price of $1,400, and as Matot was poor and financially irresponsible, it was agreed between him and Treadway that the payment of the $1,400 should he secured; and, as it was expected and understood by them that said wood was to be sold to said railroad company, it was arranged between Matot and Treadway that the payment was to be secured by the written obligation or guaranty of the Central R. R. Co., or its proper officers, to be procured by the said Matot, binding that company to pay to Treadway as Matot delivered wood to it, $1.50 per cord until said sum of $1,400 should be paid. “Matot thereupon, and prior to April 14, 1882, orally agreed with said Clark (who was authorized to make wood contracts in behalf of said company) to sell and deliver to the company along the line of said road, all of the wood upon said land, not excepting any logs or lumber, at the price of $3.50 per cord for hard wood, and $3.00 per cord for soft wood, the company to advance to him money to pay wages of choppers, and to pay directly to Treadway $1.50 per cord for whatever wood he should deliver, till Tread-way should- receive $1,400, as above stated; and it was expected and understood by all parties that the agreement between Treadway and Matot should be reduced to writing, but it never was. “ Shortly previous to April 14, 1882, Matot wrote to Clark requesting him to come down and execute a written contract, according to previous understanding, but, as Clark could not then attend to it, he wrote the letter of April 14. “This letter, received by Matot, was by him promptly delivered to Treadway, who retained it until the time of the subsequent sale to Battell, when it came into the possession of Battell. “This letter is the only paper relating to security ever furnished-by Matot to Treadway.” That part of Mr. Clark’s letter bearing upon this case is as follows: “In reply, say I will meet you. as soon as I can, but cannot now name the day. Do not think I can possibly meet you before week after next, but you can go along, as we fully understand the trade, I think, and just as soon as I can possibly meet you I will do so and have it put in contract. I don’t see but'what you can commence at once, and I will bill to Mr. Treadway as you directed, etc.” The letter was dated April 14, 1882. “ Directly after, Matot commenced cutting, employing a gang of men and teams for that purpose, and continued work on the lot until served with an injunction order in the suit first hereinafter mentioned, on June 9th, 1882. At that time he had cut upwards of 200 cords of wood, 16,000 feet of bass saw logs and 6,000 feet of hemlock saw logs, and 300 railroad ties, and had peeled some hemlock bark — of all which he has had the benefit.” * * * * “Matot expected to make from $2,000 to $3,000, and possibly more, from the arrangement; and from all that appeared in evidence his expectations were correct.” tjí * iji * # “ Finding nothing could be done with Matot as he wished, the orator' sent an agent to see Treadway, with a view of purchasing the entire tract. Treadway informed him of the arrangement that had been made with Matot, and proposed to sell the land without the wood. “Nothing came of this proposition, and after again attempting to trade with Matot without success, having then heard that Treadway claimed that Matot had not fulfilled the terms of the oral contract as to the wood, Bat-tell visited Treadway on the 7th day of June, 1882, and proposed to buy the land and with it the Matot contract, and they closed the trade at $4,500, for which Battell was to have the $1,400, and take the Matot contract with the land. A deed was immediately executed and delivered. Tread-way signed and gave to Battell at the same time an assignment of the Matot contract, which had been previously drawn for Mr. Battell by Mr. Hard his counsel. “He also handed Battell the letter from N. F. Clark before referred to.” Treadway’s assignment to Battell was as follows: “In consideration of one dollar I hereby sell and assign' to Joseph Battell all my claims and interest in an oral contract heretofore made between myself and John Matot, whereby I agreed to sell to the said John Matot the growing trees on a certain tract of land on the right bank of Otter Creek in the town of Middlebury, by the terms of which contract the said John Matot was to have the right to have such trees remain and grow upon said land for the period of two years. “ I claim, however, that the said John Matot has forfeited and lost all right to said trees by reason of his neglect and refusal to perform his part of said contract of sale.” At the same time said Battell gave Treadway a guaranty, agreeing to save him “ harmless from all costs or damages that may accrue against ” him by reason of any suit which Matot might bring to enforce the said contract. Battell immediately commenced an injunction suit, the bill being filed June 8, 1882. An injunction was granted, but was dissolved July 22, 1882. Thereupon Battell commenced another suit, obtaining .an injunction signed by Chancellor Taft, August 7, and served August 10, 1882. At the December Term of the court, to which both suits were returnable, the second suit alone was entered. At the time the last bill was served, the following notice of discontinuance of the first suit, signed by the orator’s attorney, was served on the defendant: “ To John Matot, Esq. : “ Take notice that the chancery suit pending in the Addison County Court 'of Chancery in favor of Joseph Battell against you is hereby discontinued.” The other facts are sufficiently stated in the opinion of the court. He who seeks equity must do equity. Story Eq. Jur. s. 64; 1 Pom. Eq. Jur. 419, 443, 6G9. The orator must make Matot whole for his profits under the contract. Courts will not rescind a contract merely because it is verbal, at the suit of one party, when the other party is not in default. Browne Er. ss. 123, 130; Barnes v. Wise, 3 Mon. (T. B.) 167; Rowland v. Barman, 1 Marsh. (J. J.) 76; Hughes v. Hatchett, 55 Ala. 539. A third party cannot deny the obligation of an oral contract. Browne Er. s. 135. The sale of standing trees did not require a deed. Sterling v. Baldwin, 42 Vt. 306. The statute does not preclude a defendant in equity from asserting the fact of an oral contract by way of defence. Adams v. Patrick, 30 Vt. 516; Montgomery v. Edwards, 46 Vt. 151. The Statute of Frauds cannot be used as an instrument of fraud. Wood v. Babe, 96 N. Y. 414. The assignment with the deed from Treadway to the orator is a sufficient memorandum. Browne Fr. s. 344; Drury v. Young, 58 Md. 546; Wood Fr. 652; Bailey v. Sweeting, 9 C. B. (N.S.) 843; 10 Q. B. 140. The consideration need not be stated. Fry Sp; Per. 229, 242, 332; Patchin v. Swift, 21 Vt. 292; Little v. Pearson, 7 Pick. 301; Gregory v. Gleed, 33 Vt. 405; Sage v. Wilcox, 6 Conn. 81; Packard v. Richardson, 17 Mass. 122. The pleadings afford sufficient evidence to satisfy the statute. The benefit of the Statute of Frauds must be expressly claimed. Skinner v. iiPDouall, 2 Be G. & Sm. 265; 5 Be G., M. & G, 461. The orator wholly fails to claim the benefit of the statute. Fry Sp. Per. ss. 375-7; Wood Fr. s. 700; Adams v. Patrick, 30 Vt. 516. The contract is admitted on all hands. There has been enough done under it by Matot to entitle him to have it put in writing and specifically performed, as sought by the cross-bill. Griffith v. Abbott, 56 Vt. 356; Stark v. Wilder, 36 Vt. 752; Browne Fr. ss. 465, 469; Fi*y Sp. Per. 251, 260; Lester v. Eoxcroft, Lead. Cas. Eq. 557. The transaction was not within the statute. Browne Fr. ss. 225, 257; Wood Fr. 355, 370; Greenl. Ev. s. 271; Sterling v. Baldwin, 42 Vt. 306; Fitch v. Burk, 38 Vt. 683; Smith v. Bryan, 5 Md. 141; Burner v. Piercy, 40 Md. 221; Cain v. McGuire, 13 Mon. (B.) 340. The sale was valid; the license to go on the land and remove the timber was irrevocable. Browne Fr. s. 345; Wood v. Manley, 11 A. 6 E. 34; Yale v. Seeley, 15 Vt. 235; Marshall v. Green, L. R. 1 C. P. B. 35; 15 Moak Eng. Rep. 218; Wood Fr. 363. If we fail here we can recover damages under the cross-bill. Drake v. Wells, 93 Mass. 141. If the orator is entitled to more security the defendant is entitled to reasonable time to procure it. 2 Story Eq. Jur. s. 1315; 1 Rom. Eq. Jur. ss. 433, 459; Copper M. Co. v. Ormsby, 47 Yt. 709; Hogar v. Buck, 44 Yt. 285; Weeks v. Boynton, 37 Yt. 302. The defence of another action pending in the same court, between the same parties, for the same relief, was a good plea in bar to the bill. Story Eq. PI. s. 73G; Beames Eq. PI. 137. No case in which the defendant has acquired rights can be discontinued behind his back. Jenneyv. Glynn, 12 Yf. 480; C. & B. B. B. v. Newell, 31 Yt. 370; 1 Dan. Oh. 790; 23 Moak Eng. Rep. 852, n. After answer a defendant desiring to discontinue must obtain an order of the court. 1 Barb. Cli. Pr. 225. Barker v. Concord, 2 N. H. 3G; High Inj. s. 998. This was a contract for the sale “ of an interest in or concerning land,” — R. L. s. 981 — and did not operate to vest in Matot any title whatever to the trees. Browne Er. s. 257; 2 Story Cont. s. 1440; 3 Par. Cont. 34; Benja. Sales, s. 126; Jones Chat. Mort. s. 145; Crosby v. Wadsworth, 6 East, 602; Scorell v. Boxall, 1 You. & Jerv. 396; Carrington v. Boots, 2 M. & W. 248; Teal v. Auty, 2 Brod. & Bing. 99; S. C. 6 E. C. L. 32; Jones v. Flint, 10 A. & E. 753; Bodwellv. Phillips, 9 M. & W. 501; Slocum v. Seymour, 36 N. J. 138; Armstrong v. Bateson, 73 Ind. 498; Owens v. Lewis, 46 Ind. 489; S. C. 15 Am. Rep. 295; Kingsley v. Holbrook, 45 N. H. 430; Howe v. Batchelder, 49 N. H. 204; Green v. Armstrong, 1 Denio, 550; 33 Pa. St. 376; 95 Id. 447; Buck v. Pickwell, 27 Yt. 158. The remarks of Judges Steele and Barrett in Fitch v. Burk, 38 Yt. 683, and in Sterling v. Baldwin, 42 Yt. 306, as to Buck v. Pickwell, supra, were purely obiter. As late as 1881, the court in Cady v. Sanford, 53 Yt. 633, cite Buck v. Picktvell with apparent approval. In some states the courts hold the sale of standing trees to be a sale of chattels, and not of an interest in land;’ but in those states the 'courts hold that so far as the contract is unexecuted by a severance of the trees, the purchaser acquires no title; and his only remedy is an action for damages. Gale v. Simonds, 15 Gray, Ml; Drake v. Wells, 11 Allen, 141; 1 Wash. Rep. Prop. 9. The contract amounts only to a license to the vendee to enter, cut, and remove the trees; and the sale of the real estate operated as an absolute revocation. 1 Wash. Rep. Prop. 8; Browne Fr. ss. 22, 31; 2 Wait Act. & Def. 657, and cases cited above. Matot had forfeited all rights under the contract, at the time the orator purchased the land,— because he had failed to furnish the stipulated security. The letter from Clark amounted to nothing as security. Battell’s knowledge of the contract does not affect his rights. Drake v. Wells, supra. The writings passed between Treadway and Battell do not constitute a sufficient memorandum. “The memorandum must also contain the express stipulation of the contract. Thus, it must contain the price agreed to be paid for property sold, where the contract contained a stipulation as to price.” Browne Er. ss. 346, 371-6; Ide v. Stanton, 15 Vt. 685; Cooper v. Smith, 15 East, 103. The orator in his pleading has not waived the benefit of the Statute of Frauds. If the subject matter of the contract is such as to bring it within its terms, a clear case within the statute is alleged. It would be pleading a mere conclusion of law to allege that the contract was void within the statute. The material fact, viz.: that the contract was verbal, is well pleaded, and the contract is repudiated. Vaupell v. Woodivard, 2 Sandf. 143. Matot is not entitled to a decree in his cross-cause for specific performance. When the answer denies the contract or puts the orator to his proof of it, proof of a verbal contract will not avail. Bank v. Boot, 8 Paige, 478; Cooth v. Jackson, 6 Yes. 17; Story Eq. PI. s. 763,'iioie 3; Pry Sp. Per. s. 336; Champlin v. Parish, 11 Paige, 4Ó5. If the orator alleges a parol contract void as within the statute, that defence may betaken advantage of under demurrer. Ery Sp- Per- 332; Oozine v. Graham, 2 Paige, 177; Vaupell v. Woodward, 2 Sandf. supra. Or it may be shown under the general issue at law. Hotchkiss v. Ladd, 36 Yt. 593. If the trees are chattels, — courts do not decree specific performance of contract relating to personalty. Bisp. Eq. s. 368. The breach of the contract on the part of Matot, by his neglect to furnish. security, precludes him from obtaining this or any relief in this cause. Bisp. Eq. s. 376; 1 Story Eq. Jur. s. 771. “ Where from the nature of the subject matter, a contract cannot be specifically enforced against one party, it will not be enforced at his instance against the other.” 2 Lead. Cas. Eq. 1103; Fry Sp. Per. 198; 1 Story Eq. Jur. s. 778; Adams Eq. 193; 5 Wait Ac. & Def. 804; Hill v. Grolls, 2 Phil. 60, 62; Flight v. Ballard, 4. Russ. 298; Bodine v. Glad-ding, 21 Pa. St. 50, 53. Objection to the pendency of another suit should have been made by plea. Story Eq. PL ss. 735-8.
58 Vt. 290Scofield v. Stoddard (1885)
Bill in Chancery. Heard on pleadings and a special master’s report, September Term, 18S3, Washington County, Redfield, Chancellor. Decree that the defendant deed to the orators according to the prayer of the bill. The prayer was that defendant be decreed to specifically perform the agreement made with said Scofield, and to convey to said Rider by a good and sufficient deed all the land and other property included in the deed from Scofield to him.
58 Vt. 293Pond v. Baker (1885)
Attachments. Lessee. Sheriff’s Return. Damages. R. L. s. 1190-1. 1. Property held by one officer under attachment cannot lawfully be taken on process by another officer; but when attached, receipted for, and left in the possession of the debtor it can be so taken. So property left in possession of the debtor, which can be secured for forty days by leaving a copy of the writ in the town clerk’s office, can be lawfully taken by a second officer, after the expiration of the forty days. So the second attachment will be held valid, where it does not appear from the case that the property was charged on an execution seasonably issued on the prior judgment. 2. Return. Property Leased. The plaintiff as officer attached certain property in the possession of a lessee. The return was, in part, “ I served this writ by attaching as the property of the within named defendant all the real estate in said town of M-, etc., all the neat cattle, horses, hogs and sheep, cows, oxen, etc., now on or kept on said farms, lands, and premises, or any part thereof, by the said G. M. Campbell; and on the same day I gave the said defendant, and also the said G. M. Campbell, lessee to the occupancy of said farms, lands, and premises, immediate and personal notice,” etc. The defendant had only one farm leased to C.; and on it were twenty-one cows, nineteen yearlings, fifteen calves, one horse, etc., leased; Held, that in view of the actual condition of the property, the live stock on the farm was legally attached; and that the return was sufficient to inform the defendant and any reasonable, prudent person dealing with him, that the property was under attachment. 3. Assignee. The question, whether the plaintiff should'have taken possession of the property immediately on the expiration of the lease, is not involved, as the defendants, who have converted the property in the case, are the assignees of the defendant in the original case, and stand only on his rights; and the attachment was valid as to him without a change of possession. I. Lessor. The interest which the lessor had in the hay and grain raised on the farm by the lessee was not attached, as it was not in existence at the time of attachment, although by the terms of the lease, the hay was substituted for the hay that was legally attached. 5. Damages. The damages are to be estimated at the time of the conversion, not at the time of the attachment.
58 Vt. 306Rutland Probate Court v. Hull (1885)
Probate Bond. Pleading. Demurrer. R. L. s. 2;303. 1. In an action on a probate bond the County Court has the authority to cause the name o£ the prosecutor to be stricken from the record, when he had not complied with the statute, E. L., sec. 2303; nor made application to the Probate Court for leave to prosecute; nor given a bond to the adverse party. 2. A declaration counting on a probate bond is bad on demurrer, when it does not state a cause of action in favor of the prosecutor; thus, it was averred that K. was the treasurer of a cemetery association; that the association owned a claim against the estate of H., of which the defendant was administratrix; that the claim was presented to the commissioners in the name of K., and was a claim due him in trust for said cemetery association, * * * a debt * * * held by its said treasurer, * * * so allowed to saidK., treasurer, etc.; that defendant neglected to pay; that K. subsequently deceased; that S. was appointed his administrator, and A., treasurer of said association. The associf ation applied for leave to prosecute; but S. did not, nor did he give bonds. Their names were indorsed on the writ as prosecutors; but the name of S. was stricken off by order of the court; Held, that the declaration does not state a cause of action in favor of the prosecutor. 3. In an action on a probate bond, after judgment has been rendered at one term for the penalty of the bond, the defendant may demur at a second term upon the trial of the alleged breaches.
58 Vt. 315Bradley Fertilizer Co. v. Fuller (1885)
 New Trial. Practice. Replevin. Assignee. Fraud. False Representations of Insolvent Debtor. 1. Plaintiff offered one witness on an important issue, so early in the trial that, if admitted, he could have procured the attendance of other witnesses. The court at first ruled against his admission, but on further consideration decided to admit the witness; but not until it was too late to summon the other witnesses; Held, a good cause for a new trial. 2. In an action of replevin against the assignee of an insolveut debtor, to recover property claimed to have been obtained by the debtor through a fraudulent purchase procured by false representations as to his financial condition, evidence is admissible of other similar purchases made about the same time.
58 Vt. 319Shores v. Bell (1885)
Trespass. Heard on a referee’s report, September Term, 1884, Essex County, Ross, J., presiding. Judgment for the defendant. The referee found as to .the rebuilding of the fence: “ The defendant built over the fence above the Lunenburgh road some four or five years ago, and the fence below the road about three years ago.
58 Vt. 323Dohorty v. Madgett (1885)
Trover. Detention. Conversion. Husband and Wife. Act of 1884, No. 140. Pleading. Practice. 1. A wrongful detention of goods from the owner by a naked bailee, on proper demand, is a conversion for which trover will lie. 2. Under the general issue, the defendant cannot claim, that the plaintiff has sued by the wrong name. 3. The husband alone is liable for the wrongful detention of property by his wife, which was delivered in specie to her in his presence, with his approval, and detained for their use. 4. Admitting the truth of the plaintiff’s evidence, it is a question of law for the court, and not for the jury, whether he is entitled to a verdict. 5. The Act of 1884, whereby a married woman could sue and be sued, was passed after this action was commenced and -has no application.
58 Vt. 327Thayer v. Spear (1885)
Heard by the court, December Term, 1884, Orange County, Rowell, J.,. presiding. Decree of Probate Court affirmed. The provisions of the will are sufficiently stated in the opinion of the court. cited, Jones v. Randall, 1 Cowp. 37; Egerton v. Earl of Brownlow, 4 H. L. Cas. 1; 8. C. 23 L. J. Ch. 348; 1 Story Eq. 291; 2 Redf. Wills, 293; Conrad v. Long, 33 Mich. 78. cited, 3 Jarm. Wills, 706; 1 Redf. Wills, 445.
58 Vt. 329Eastman v. Barnes (1885)
Replevin for a cow and calf. Heard on a motion to dismiss and motion to file a new bond, June Term, 1881, Orange County, Rowell, J., presiding.
58 Vt. 331Sprague v. Abbott (1885)
Trespass and case. Plea, general issue and justification under certain rate bills and warrants. Trial by court, December Term, 1884, Orange County, Rowell, J., presiding. Judgment for the plaintiff. The tax in question was a state school tax. The money collected does not belong to the town, and cannot be recovered of the town. The town collected it as an agent. Vermont Central B. B. Co. v. Burlington, 28 Yt. 200; Spear v. Braintree, 24 Yt. 419; Wilson v. Seavey, 38 Yt. 221. The tax was legally assessed on the fall list of 1882. This position is fully sustained by Royce, Ch. J., in Clove Spring Iron Works v. Cone, 56 Yt. 603. The state school tax is provided by general law, R. L. s. 656, and is not voted by the town. The Act of 1882, No. 1, provides for assessing state and county taxes on the list next previous to laying the tax. The tax was not a state but a town tax. It should have been assessed on the May list. R. L. ss. 338, 354, 657. The legislature uses the term “ state taxes,” in the sense of taxes paid into the state treasury. All provisions of law relating to the special fall list and all statutes directing any taxes to be assessed on such list were repealed by No. 1 of the Acts of 1882; hence, the assessment was illegal, because there was no law prescribing that state or any other taxes should be assessed on such list.
58 Vt. 337Southworth v. Kimball (1885)
Bill in Chanceky. Heard on demurrer, Orange County, December Term, 1884, Rowell, Chancellor. Demurrer allowed, and bill dismissed. The orator did nothing to protect his rights for a tort; nor was he obliged -to. The law will raise a promise to pay. The separate estate of a feme covert is chargeable for debts contracted on the credit of it, or for contracts made in benefit of it. N. A. Coal Co. y. Dyett, 7 Paige, 9; Dale y. Robinson, 51 Yt. 21; Yale v. Dederer, 18 N. Y. 265; Sargeant y. French, 54 Yt. 384. The rule applies as well to an implied as to an express promise. Murray v. Barlee, 4 Sim. 83; 8. C. 3 Mylne & K. 225. There was no adequate remedy at law. Claims of an equitable character cannot be passed, upon by commissioners. Hendrick v. Cleaveland, 2 Yt. 329; Brown v. Sumner, 31 Yt. 671; Sparhawk v. Buell, 9 Yt. 71. The intestate’s estate - will be made liable in equity. Picard v. Hiñe, L. R. o, Ch. App. Cas. 274. A married woman’s express contract is not chargeable upon her separate estate, unless the credit was given to the estate, not to the individual. Sargeant v. French, 54 Yt. 384. Her general engagements, being void at law, will not be enforced in equity. Dale v. Bobinson, 51 Yt. 21. No promise can be implied. Curtis v. Engel, 2 Sandf. Ch. 287; Johnson v. Gallagher, 3 De G. E. & J. 494. The same doctrine is held in New Jersey. Armstrong v. Boss, 20 N. J. Eq. 109; Perkins v. Elliot, 22 N. J. Eq. 127. The torts of a married woman cannot .be satisfied out of her separate estate. Perry Tr. s. 659; Wright v. Chard, 1 De G. P. & J. 567; 4 Jac. Eish. Dig. 6108. The remedy is adequate at law, if any. R. L. s. 2133; Currier v. Bosebrooks, 48 Yt. 34; Shaw v. Hallihan, 46 Vt. 389; Adams v. Adams, 22 Yt. 50.
58 Vt. 341Newell v. Town of Whitingham (1885)
Tax-Payer’s Oath attached to the Inventory under the Act of 1880. The plaintiff interlined the oath attached to his inventory required by the tax law of 1880, with the words, “ to my best knowledge and belief." The listers refused to accept it and proceeded under the section of the statute, R. L. s. 326, which directs them, in case of a wilful omission to make, swear to,'and deliver a legal inventory, to ascertain the amount of the tax-payer’s taxable property, appraise the same, and double the sum so obtained, as a basis for the list; Held, that the action of the listers was lawful; that it was the duly of the plaintiff to take the oath as formulated in the statute; and that his refusal was wilful, though conscientious.
58 Vt. 353Dwinell v. Bliss (1885)
[In Chancery.] Deed Declared Void. Delivery of Deed. 1. Delivery is essential to give effect to a deed; but delivery depends on the grant- or’s intention, and intention is a fact to be found by the trier; thus, a recorded deed was declared void, where the master found that the grantor merely left it in the possession of the grantee, but that she never delivered the deed, i.«., as an operative conveyance. 2. Amendment. The orator was allowed to amend his bill, brought to set aside a deed, by adding to it as a cause the non-delivery of the deed.
58 Vt. 359Fairbanks v. Devereaux (1886)
Set-off. Attorney's Lien. Assignment. Statute of Limitations. R. L. ss. 915, 919. 1. The right of set-off is superior to an attorney’s lieu, of to the rights under an assignment of an overdue debt. 2. But a note cannot be offset when it was executed after the assignment and the accruing lien, although it was given for debts due before. 3. Statute of Limitations. When an irregular levy of an execution on real estate is vacated on audita querela, the Statute of Limitations does not begin to run on the original judgment until the execution and levy are vacated.
58 Vt. 367Richardson v. Wright (1886)
Bill to foreclose a mortgage. On bill, pleadings and report of a special master, December Term, 1885, Taut, Chancellor, it was ordered, pro forma, and without hearing, that the bill be dismissed.
58 Vt. 372Town of Andover v. Town of Mount Holly (1886)
Pauper. Removal. Pleading. Duplicity. R..L. s. 3833. 1. A plea in a pauper case, wliicli contains two separate and distinct defences, namely: that the pauper did not have'a legal settlement in the defendant town; and that he “ has not, and is not liable to, become chargeable ” to the plaintiff town, is bad on demurrer for duplicity. 2. Surprusage. Immaterial matter in the plea is treated as surplusage.
58 Vt. 375Sawyer v. Hebard's Est. (1886)
 Parent and Child. Express Contract. Mother-in-Lcnv, hoard, of. Son-in-Law. Funeral Expenses. Settlement of Estates. 1. A son-in-law cannot recover for boarding his mother-in-law twenty-six and a half weeks in all, on five different occasions during four years, the stays or visits being made sometimes at the suggestion of her daughter, and sometimes of the physician, when the auditor was unable to find that she expected to pay. It. was necessary to prove either an express contract or a mutual expectation of the parties that the board should be paid for. 2. Funeral expenses should not be brought before commissioners; such expenses are against the administrator, and should be first paid.
58 Vt. 378State v. Lockwood (1886)
Indictment for larceny. Plea, not guilty. Trial by jury, December Term, 1885, Taft, J., presiding. Verdict, guilty on the first count, and guilty of petty larceny on the last count. The state’s attorney entered a nolle prosequi as to the second and fourth counts; and by leave of court amended the first count by phanging the word “statue ” to “ statute.” Before trial the respondent filed a motion to quash, which was overruled.
58 Vt. 381Lamson v. Worcester (1886)
 Assumpsit. Equity. Mill Owners. Equitable Lien. 1. There were three dams or water privileges on the same stream, the plaintiff owning the middle one, the defendant the lower one, and each certain rights in the upper, or “great dam,” for the purpose of drawing water from the reservoir made by it. These rights were expressed or defined by the by-laws of the Ascutney Mill Dam Co., — the common source of title of both parties. The bylaw bearing upon this case was: “All the water privileges on each of the falls, sold and unsold, are always holden, and shall be liable according to their relative value, for a fair proportion of the expenses of rebuilding or repairing the great dam; provided such expenses are incurred by the consent and approbation of two thirds, in value, of all the privileges in interest.” The plaintiffs repaired the dam, and brought assumpsit to recover of the defendants their proportion of the expense; Held, that the action could not be sustained; that the by-law incorporated into a’ deed would not attach to the conveyance a personal liability of the grantee; that the claim is merely an equitable lien, enforceable only in a court of equity. 2. Jurisdiction — Reference. The jurisdictional question of this character cannot be waived by a reference, and should be determined, when raised at any stage of the proceedings.
58 Vt. 388Russ v. Henry's Estate (1886)
Petition for a homestead to be set out. Heard, December Term, 1885. Taet, J., presiding. Petition dismissed. It appeared that Elvira M. married Edwin F. Henry in 1858, and from that time to'the death of Edwin F., February 8, 1870, lived upon the Lull farm with her husband, keeping and maintaining a separate family establishment on said farm, neither owning nor having any other real estate or home.
58 Vt. 393In re Cushing's Will (1886)
Appeal from the Probate Court. Heard on a commissioner’s report, December Term, 1885, Taft, J., presiding. Judgment pro forma for the appellant. Henry Boynton was the executor of said Nathan Cushing’s will, and the party appealing in this case from the decision of the Probate Court. James C. Barrett was the executor of the will of Lucy B. Cushing, the widow of said Nathan Cushing. It appeared that the said Nathan die'd testate December 2, 1872, leaving the said Lucy B., his widow, and three children or heirs by a former wife, the said Lucy B. being his second wife. The said Lucy B. deceased November 14, 1883, leaving a will. The said testator gave to his son, Nathan Cushing, Jr., $4,000, which was to be controlled by a trustee, and said Boynton was made trustee by the will. March 3, 1874, the Probate Court directed the executor to retain $10,000, to carry out the provisions of the will as to Mrs. Cushing, and as to said Nathan Cushing, Jr. The $6,000 was invested in a mortgage on real estate; and the interest —$360—was annually paid by Mr. Boynton to Mrs. Cushing, about December 1. In the years 1881 and 1882, the executor, Boynton, deducted from the annual payments the sum of $137.69, which he had paid for taxes assessed on the $6,000. The executor claimed the right to retain this sum under the will. The commissioner found, in part, as to the over-payment:— “I find upon the testimony of said Dr. Boynton, that, when he made the payments from year to year to Mrs. Cushing, he supposed them to be due as made, and did not think of them in the light of advanced payments, and made them as payments respectively for the year then past and as due; but that, on reviewing all that he paid out at last, he came to the conclusion that he had paid from year to year in advance, and that the payment made in December, the year previous to Mrs. Cushing’s death, did, by a proper construction of the will, cover her expenses for that year in which she died; and that the last payment of $345.66 (being the proportion for the time she lived the last year) was an over-payment, and was never lawfully due.” It was also found that Dr. Boynton had funds of the Cushing estate in hand more than sufficient to pay the sum claimed by the appellee. The sum allowed the appellee by the Probate Court was the $137.69, and interest on the same. The will is sufficiently stated in the opinion of the court.- In 1881, the fund was listed to Dr. Boynton, as executor, and he paid the various taxes on that list, and deducted them from the “ income ” of the fund going to Mrs. Cushing. It was for Mrs. Cushing to pay the taxes; and not the estate of her husband. The testator made no provision for payment of the taxes out of his estate, although he must have known that the $6,000 fund would be subject to taxation. If the court should consider that our view as to the taxes is wrong, there would still be nothing equitably due to Mrs. Cushing’s estate. We claim that the last payment to her executor, of $345, December 23, 1883, was not due to her estate, and that the executor holds that sum, to which he is not legally entitled. It being a voluntary payment, we cannot recover it back; but the executor, holding this money, cannot be permitted, before the Probate Court or on appeal, to recover other claims not amounting to that sum. The yearly payments were annuities, and not subject to apportionment. If the payments were not advance payments, Mrs. Cushing having died before the end of the last year, nothing became due for that year. 2 Red. Wills, 171 n. 17; Wiggin v. Swett, 6 Met. 194. The question is, whether, under the will bequeathing to her the whole interest, she is entitled to only a part of it. There would seem to be no room for construction. Without the aid of the dictionary, we know that the “whole” not only does not mean a “part,” but means the whole as contradistinguished from a part. The word “ whole ” must have its natural and primary meaning, unless that meaning produces an absurdity, or there is a subsequent provision so repugnant that it is an impossibility for tlie two to stand together. 3 Jar. Wills, 707, Rule xvi; Pocock v. Attorney General, 18 Moak Eng. Rep. 544. The testator made provision for the payment of necessary expenses. 3 Jar. Wills, 426; 10 Moak Eng. Rep. 731; 2 Jar. Wills, 211; Peter v. Stirling, 26 Moak Eng. Rep. 691. See also 2 Jar. Wills, 56; l'Red. Wills, 435. No part of the $345, paid on account of part of the year 1883, can be recovered back, or used in offset. 78 Penn.- St. 432. It was a voluntary payment. Rob. Dig. 526; Burnham v. Strafford, 53 Yt. 610; Jervis v. Wolverstan, 9 Moak Eng. Rep. 674; Bogers v. Ingham, 18 Moak Eng. Rep. 552.
58 Vt. 398Martin v. White (1886)
Estates, Settlement of. Action. Administrator. Commissioners. Offset. County Court. Jurisdiction. R. L. ss. 2117, 2122, 2131. When an administrator has commenced an action to recover a debt before the debtor presents his claims to the commissioners, the debtor’s only remedy is to plead his claims in offset; and the rule is the same after the original commission has expired and been opened by the Probate Court. And if the debtor should then present his claims to the commissioners, and they should take cognizance, the proceeding on appeal in the County Court will be dismissed for want of jurisdiction.
58 Vt. 403Churchill v. Bradley (1886)
Assumpsit in common counts. Heard by the court, December Term, 1885, Tapt, J., presiding. Judgment for the plaintiff. It appeared that one James Brown, as principal, with E. K. Slack and the defendant as sureties, executed a promissory note for 8100, bearing .date the 29th day of July, 1884, and payable to the Woodstock National Bank in six months from date. The note was passed by the said Brown to the bank, and by it discountéd at or about the time of its date for Brown, who had the whole avails. The note remained the property of the bank until September 15, 1884. At that time the principal in the note, agreed with the plaintiff in this action, that he should take up that note and pay the bank, and hold the same , as the hank had held it, against the signers as his security. And accordingly the plaintiff passed the money to Brown, who took it, and went to the bank, and informed the officers that he would take up his note, which he did, the bank understanding and treating it as a payment, and marking the note as a paid note, and knowing nothing of the arrangement between the plaintiff and Brown. Brown took the bank note and passed the same to the plaintiff in the evening of the same loth day of September. The agreement was entered into between the plaintiff and Brown, and the money advanced by the plaintiff, in good faith, supposing that when he took the note he would hold it the same as the bank was then holding it. On the Gth day of February, 1885, the plaintiff took the note in suit, then already written and signed by E. C. Brown, wife of the principal on the bank note, to the defendant at his residence in Plymouth, for the purpose of getting him to sign it in place of the bank note. At that time the said Slack had become insolvent, and this was known to the parties; and the said Brown was insolvent, and his creditors had petitioned the court to adjudge him such, but the defendant was not aware of Brown’s insolvency until after he executed the new note. The plaintiff met defendant at his house and told him that he held the bank note, and that the defendant was holden to pay the same; and the plaintiff in good faith so believed, and the defendant so believed, and signed the note in suit as the plaintiff asked him to do. The liability of the defendant was on this occasion discussed by the plaintiff and defendant. The plaintiff did not inform the defendant, nor had the defendant any knowledge that the bank treated and had marked the bank note as paid until after the defendant had signed the note in suit, and the plaintiff had taken it and put it in his pocket. The bank note has ever since been in the possession of. the defendant or his counsel. The next Saturday after the defendant had signed the new note he went to the plaintiff’s residence in Woodstock, and told him he should never pay said note until compelled to. The suit was brought on the new note. Whatever amounts to satisfaction of a bill or note by the maker or acceptor operates as an absolute discharge of all parties collaterally liable. 2 Dan. Neg. Inst. 326. Payment is the discharge of a contract. When a party to a note produces the money and takes it in, he cannot show that he was acting as the secret agent of another, and convert that other into a purchaser. And the payment of a note by the principal discharges 'the surety. Eastman v. Plumer, 32 N. H. 238; Lancy v. Clark, 64 N. Y. 209; Greening v. Patten, 51 Wis. 150; Burr v. Smith, 21 Barb. 262; Chapman v. Collins, 32 Cush. 163. In Lancy v. Clark, supra, the court say: “To make a sale or transfer takes two parties, one to sell, and the other to buy.” The fact that the defendant was ignorant that the bank understood and treated its note as a paid note cannot aid the plaintiff, but relieves the defendant from all liability on his new promise. The indorser of a note, payment of which has not been demanded of maker, is not liable on his subsequent promise to pay, made in ignorance of the fact of no demand. Low v. Howard, 11 Cush. 268. A drawer’s promise to pay an. overdue check without knowing the fact that it had 'not been duly presented to the bank for payment is not binding upon him. Kelley v. Brown, 5 Gray, 108; 1 Par. N. & B. 201. There was no consideration for the new noté. 1 Chit. Con. 69, 71; Mete. Cont. 193 et seq. The exceptions find that every one acted in good faith. If the new note had not been given, the plaintiff could have maintained a suit on the bank note in the name of the bank, and recovered the money paid by him. Keith v. Goodwin, 31 Yt. 268. “The fact that a note executed for the purpose of raising money is made payable to a particular bank or individual is merely a formal and not a substantial part of the contract. In such cases it is well understood that the note goes into the market as money, and in exchange for money, to any party who will make the discount.” A different rule prevails in some states. Bank of Montpelier v. Joyner, 33 Yt. 481. In Bank of Newbury v. Bicharás, 35 Vt. 281, Barkett, J., says: “A surety is an original maker, and becomes primarily and absolutely liable, as much so as the principal, to any party lawfully holding the paper.” F. & M. Bank v. Humphrey, 36 Yt. 554. The case is distinguishable from Eastman v. Plumer, 32 N. H. 238, and Lancyv. Clark, 04 N. Y. 209, in this, that the notp in each of the above cases was due and had accomplished the purpose for which it had been given, and, as is well said in the New York case, being taken after due was taken from the principal and not from the bank and was taken subject to any defences in the hands of the principal. Those cases may be sound and still the' position here claimed in this case correct. If we are right in our position now taken that ends the case and the judgment below -is correct and should be affirmed. But the note was good against Brown, and its surrender Avas a sufficient consideration for the new note. 1 Dan. Neg. Inst. s. 185; Arnold v. Sprague, 34 Yt. 402.
58 Vt. 409Stone v. Tupper (1886)
Evidence. Opinion, Value of Services. Hostility of Witness. R. L. s. 4086. 1. Opinion — Value of Services. A witness, having a general knowledge of the character, extent, and quality of the plaintiff’s work, — in a livery stable, — and being acquainted with the kind of work, was properly allowed to give his opinion or estimate of its value. 2. Party May be Shown to be Poor, When. Evidence is admissible to show that one is poor, whose claim has been long overdue against a responsible party, and without demand, if it appears that the claimant was actually in need of money to use; but not so, if, though poor, his current needs were supplied, and he had no occasion to use more than he received. 3. Witness Hostile. A party may show that an opposing witness is hostile to him, but cannot go into the details of the hostility. 4. The question was whether S. was at work for T. for wages or only for his board and clothes; Iield, that it was not error to allow S. to testify that M. offered him a job during the time in question, that he told this to T., and that T. replied that he would do as well by him as M., although it did not appear what M. offered to pay. 5. The plaintiff, near the close of his work for the defendant, signed a writing by which he was to receive only his board, etc., from that date; Held, that it was not error to exclude testimony offered to show that the plaintiff made no effort to get another job before signing it. 6. Practice — Charge—Assumption. The charge was correct from the plaintiff’s standpoint; and the court assumed, as nothing appeared in the exceptions to the contrary, that the case was also properly put to the jury, as the defendant claimed it.
58 Vt. 414Burton v. Burton (1886)
 Divorce. Pleading. Practice. Record Cannot be Attacked by Matter in Pais. Amendment. 1. Common law pleadings are not required in divoree cases. 2. A decree dismissing a libel for divorce, "without prejudice,” even after the evidence has been heard, is not a bar to a new libel for the same cause. 3. Such a qualified dismissal cannot be attacked collaterally. It cannot be shown by matters in pais under a rejoinder that the words “ without prejudice ” were added to the record after the term of court, in which the case was dismissed, was adjourned sine die. 4. A bad surrejoinder is a sufficient answer to a bad rejoinder. 5. Amendment. The County Court has power, on an oral motion and without notice to the defendant, to allow the libellant to amend his replication by interlining the words, “ all of which fully appears and is shown by the record,” etc.; and the exercise of such power is not reviseable.
58 Vt. 426U. S. National Bank v. Burton (1886)
' Assumpsit on a draft. Trial by court, April Term, 1885, Walker, J., presiding. Judgment for the plaintiff. The plaintiff offered in evidence a draft as follows: “St. Albans, January 30th, 1885. Four months after date pay the First National Bank of St. Albans or order, four thousand forty-six and eighty one-hundreths dollars, value received and charge to account of Burton & Sowles.” “To Glenn’s Falls Shirt Co., St. Albans, Vermont.” The draft was “accepted, payable at the National Bank of Commonwealth, Boston, Mass., Glenn’s Falls Shirt Co., by B. C. Hall, treasurer”; and indorsed “Pay to E. G. Sherman, cas. U. S. Nat. Bank, New York,” “A. Sowles, cas.”; also, “Pay J. A. Eddy, cas., Maverick National Bank, Boston, Massachusetts, for collection.” The plaintiff offered the notarial certificate and presentment, and protest thereto annexed. The plaintiff also introduced the testimony of Albert Sowles, who'testified, that he was cashier of the First National Bank of St. Albans in the year 1884, and that E. A. Sowles was president thereof; that the above draft was given to and passed through the latter bank in renewal of foi’mer drafts held and owned by that bank against the same parties, for moneys advanced from time to time to the Glenn’s Falls Shirt Co.; that said Sowles, cashier, negotiated the same, to the United States National bank, New York, and sent it by post to E. G. Sherman, who was reputed cashier; that L. C. Murray was acting president of the bank with whom he did business, with Murray as president and said Sherman as cashier; that he had correspondence with the Maverick National bank, .of Boston, Massachusetts, and that J. J. Eddy was reputed cashier thereof, and acted as such. The court admitted the draft, notarial certificate, and testimony above, against the objection and exception of the defendant. •The court found: That the above draft was drawn on the Glenn’s Falls Shirt Co., located and doing business at St. Albans; that said draft is genuine; that Burton & Sowles were a partnership firm, composed of the defendants, Oscar A. Burton and Edward A. Sowles; that at the time of the execution of said draft, and since said Burton has resided in Burlington, Vermont, and said Sowles at St. Albans, Vermont; that during said time Burton had an office and place of business in St. Albans, and did a large business there and elsewhere in other towns; that the above draft was accepted and payable, as above shown by the indorsee; that thereafter the same was sent, as testified to by Cashier Sowles, for negotiation, and the same was after-wards indorsed over by L. C. Murray, acting president of plaintiff’s bank, to J. J. Eddy, acting cashier of the Maverick bank of Boston, Massachusetts, for collection; that on the second of June, 1884, at the request of said cashier of said Maverick National bank, C. EL Smith, a notary public, demanded payment on said draft at the National Bank of Commonwealth, Boston, Massachusetts, and there being no funds, payment was refused and the drawers and indorsers were notified, and protest made, as set forth in the notarial certificate of protest above, and on the same day said notary mailed a notice of protest through said plaintiff’s bank and the latter banks to the First National bank of St. Albans, addressed to Burton & Sowles, as shown by said notice; that said latter bank passed into the hands of a receiver, April 22, 1884, and that said notice to Burton & Sowles was received by said receiver through F. J. Houghton, the clerk of said receiver, June 4, 1884, at St. Albans, and on the same day said Houghton enclosed said notice in an envelope and directed it to O. A. Burton, Edward A. Sowles, St. Albans, as shown by said envelope, and dropped it into the post office at St. Albans, June 4, 1884, where it was stamped with the stamp of said post office. That said defendant Sowles never received said notice of protest or knew about it until since this suit was brought; that said Burton was out of the State of Vermont continuously from May30till June30, 1884, and in the Western States; and after this suit was brought he told said defendant Sowles that he never received any notice of the protest of said draft; but we find that he did receive the notice mailed by Houghton at some time, but we are unable to find, from the evidence when he received it. He had it in his possession in May or June, 1885, and the plaintiff’s attorney produced it from Burton’s counsel in May or June, 1885. The action cannot be maintained in the name of the plaintiff. The draft was indorsed to its cashier. Bank v. Lyman, 20 Yt. 067. The defendants should have been sued as partners. Dan. Neg. Inst. ss. 970, 1050; Byles Bills, 444. The notarial certificate was inadmissible as evidence. 1 Greenl. Ev. s. 489; Bank v. Gray, 2 Hill, 277; Dan. Neg. Inst. s. 966; Byles Bill, *390; Daken v. Graves, 48 N. H. 45; Kittlancl v. Wanser, 2 Duer, 277; R. L. s. 2006. The defendants did not receive legal notice, and are therefore discharged from liability. R. L. s. 2006; Dan. Neg. Inst. ss. 1003, 1006; Cabot Bank v. Warner, 10 Allen, 524; Bank v. Wood, 51 Yt. 471; Byles Bills, 438, 437; McCrammon v. McCrammon, 17 Mart. (La.) 158; Patrick v. Beasley, 6 How. (Miss.) 600; Green v. Barley, 20 Ala. 322. Notice must be given the most expeditious way. Dan. Neg. Inst. ss. 1006, 1033; Byles Bills, 430, 423, 412, 413; Jarvis v. Mfg. Co. 23 Me. 287; Barishere v. Parker, 6 East, 3. Unless due diligence is shown the loss falls on the sender of the notice. Clark v. Ward, 4 Duer, 206. At common law, notice must be personally served, if parties reside in the same place. Notice by mail is not sufficient, without proof that it actually and seasonably reached him. Our statute does not change the common law rule in this case. R. L. s. 2006; Byles Bills, 424; Dan. Neg. Inst. s. 1005; Bank v. Battle, 4 Humph. 86; Bowley v. Hotvard, 8 How. 248; 2 Greenl. Ev. s. 188; Story Notes, s. 322; Boivley v. Harrison, 6 How. (U. S.) 248; Pierce v. Pender, 3 Met. 352; 3 Kent Com. (5th ed.) 107. “It is not that the indorser resides in the same town, where the protest is made, which entitles him. to personal notice, but that he resides in the same place with the person who gives the notice.” Byles Bills, 424; Spencer v. Ballard, 18 N. Y. 327; Par. Merc. Law, llo; Pierce v. Pender, supra. The envelope containing the notice was improperly addressed. 1 Wait Act. & Def. 646; Dan. Neg. Inst. s. 1028; Becktvith v. Smith, 22 Me. 125•,-Dickens v. Beal, 10 Pet. 572; Bank v. Wood, 51 Vt. 471; Byles Bills, 420, 421; Walter v. Haynes, 21 E. C. L. 721. The first exception of the defendant, Sowles, is to the admission of the draft, notarial certificate, and the testimony of Albert Sowles. This exception is not entitled to notice, because the ground or grounds of the objection were not specified. Burton v. Driggs,20 Wall; S. C.'Book, 22 U. S. Sub. Ct. Rep. 301; Camden v. Doremas, 3 How. 515; Hinder. Longworth, 11 Wheat. 199. The objection having been made generally to three different and distinct kinds of testimony could not properly be sustained, if any of the testimony objected to was admissible. Knight v. Smythe, 57 Vt. 529. The draft was not only admissible, but was indispensable to the proof in the plaintiff’s case, it being the identical instrument declared on. The notarial certificate of presentment, dishonor, protest, and notice, was equally competent and necessary. R. L. s. 2006; 2 Dan. Neg. Inst. ss. 959, 1055. Even asssuming that defendants were entitled to personal notice, still, if notice was sent to them through the post office, and actually and seasonably readied them, or either of them, or went to the residence or place of business of either, it would be sufficient; and as. these facts were to be found by the court, the objection to the notice was not well taken. 2 Dan. Neg. Inst. s. 1003. And so was the testimony of Sowles admissible; as without proof of his official character as cashier of the First National bank, in which capacity he indorsed the paper to the plaintiff, the right of plaintiff, as endorsee, to maintain the suit would not have appeared. “The cashier of a bank has a general authority to issue and endorse negotiable paper.” Mor. Corp. s. 65. So it was proper, if not necessary, to show that Sherman was cashier of the plaintiff bank, and that Murray was its president, since the indorsement of the draft by the First National bank of St. Albans (the payee) was to “E. G. Sherman, cashier,” and the indorsement of it by the plaintiff to the Maverick National bank was by “ L. O. Mux-ray, president.” And proof that Shex-man axxd Murray were respectively the actixxg and reputed cashier axxd presidexxt of the plaixxtiff baxxk, was competexxt, and was sufficient for the purposes of this case. Axxg. & Ames, Cox-p. s. 139. The exxvelope, with its superscriptioxx “0. A. Burton, Edward A. Sowles, St. Albans, Yt.,” with the postage-stamp axxd post-mark “St. Albaxxs, Yt., June 4,” which was proved and found to be the post-max-k of the St. Albaxxs post office, was also exxtirely competexxt as bearixxg upoxx the question whether the defendaxxts actually received seasoxxable xxotice. The post-xnark is prima facie evidence of mailixxg. 2 Daxx Neg. Ixxst. s. 1052. The testimony of Hard was admissible. Wade Notice, s. 751; 2 Dan. Neg. Ixxst. s. 999. The foux-th exceptioxx of Sowles was the rexxdition of judgmexxt for the plaixxtiff. As the judgment was rendered upon all the testimoxxy, axxd as other testimony was introduced besides that which is recited, it is xxot easy to see how it can be claimed that it affirmatively and clearly appears that there was error ixx giving judgmexxt for the plaixxtiff. But it is quite immaterial whether the court fouxxd any facts respectixxg the notice to the defexxdaxxts', other than those which distinctly appear in the case, as in a case like the present one, it is sufficient that the notice was deposited in the post office at the proper time. 2 Dan. Neg. Inst. 1022, 1058; Manchester Bank v. Fellows, 28 N. H. 302; Fagle Bank v. Hathaway, 5 Met. 212; Hartford Bank v. Stedman, 3 Conn. 489; 1 Wait Act. & Def. 648.
58 Vt. 437Royce v. Maloney (1886)
 Libel. Pleading. 1. In a declaration based on a libel claimed to have charged the plaintiff, who'was Chief Judge of the Supreme Court, with bribery in his office, it is not necessary to allege that the pretended briber was a party of record to any suits in which the plaintiff sat as judge or rendered any decision; but it is sufficient to allege that the said briber was a party in interest to such suits. 2. Construction of Pleading. Applying the rule, that everything is to be taken most strongly against the pleader, with reference to the rules relating to the degree of certainty required in pleading, — reading the words and phrases in the declaration in the light of the context, the court hold that there is an allegation of judicial action by the plaintiff in said suits. 3. Allegation of Time. The time when the said briber had interests involved in litigation is properly alleged in accordance with the rule, that when several facts are stated in one continued sentence, time, though alleged but once, applies to each fact. » 4. The publication was: “ It is quietly going the rounds in St. Albans railroad circles that Chief Justice Royce will resign from the supreme bench during the summer, and that he and.his son will form a law partnership, and will attend to the extensive law business of the Central Vermont R. R. Co. It has been suspected for years that Mr. Royce was retained by the railroad company aforesaid; therefore, this proposed open espousal of their cause will not occasion much surprise ”; Held, (a) that it was not necessary to aver that the plaintiff was an attorney admitted to practice in the courts, in order to sustain the innuendo of bribery; (ft) and that it is for the jury to determine, whether the words meant what it is alleged they did. 5. The second count was based on the following: “ What the Gazette wants 'to know: when Judge Royce and his son will dissolve partnership”? It was alleged that the plaintiff’s son was a lawyer, practicing in the courts, and that the meaning of said words was, that plaintiff was in copartnership with him in the law business, receiving compensation from parties to said suits, etc.; Held, that the publication in the light of prefatory averments amounts to a charge of misconduct in office, and is libelous, if not true.
58 Vt. 448Vilas National Bank v. Strait (1886)
Heard on a referee’s report, April Term, 1885, Royce, Ch. J., presiding. Judgment for the defendant. The referee found: The action is based upon two notes owned by the plaintiff. One Delaney was engaged in the business of running a grist ..mill, buying and selling flour, feed, etc., at Swanton, Yt. The plaintiff bank is located at Plattsburgh, N. Y., and S. E. Yilas was its president, and owned a large majority of its stock. J. H. Yilas, a son of S. F. Yilas, resided at Swanton and assisted said Delaney in the management of his business by keeping his books, etc. In the years 1878 and 1879 the defendant resided at Fletcher, Yt., engaged in the flour and feed business. The notes were given by the defendant to the “ order of James Delaney,” and payable at the plaintiff bank. The defendant purchased flour, etc., of Delaney, and until January 28, 1879, paid for it by notes payable at the National Union Bank at said Swanton. On said January 28, the said S. F. Yilas, his son, Delaney, and the defendant met at Swanton, and a certain arrangement was entered into by which defendant’s notes were made payable at the plaintiff bank. The defendant offered to show that at the time he changed his manner of making his notes, from having them payable at the Swanton Bank to having them payable at the Yilas National Bank, S. E. Yilas, as president of said last named bank, gave him directions to pay such notes as he might thereafter make payable at said bank to James Delaney, special, as he had formerly paid his notes given payable at said Union Bank; that payment so made should be treated as payment at and to the Yilas National Bank; and that, in accordance with such arrangements, the notes in suit had been fully paid by the defendant. To the introduction of such evidence, so offered, the plaintiff objected for the following reasons : 1. For immateriality; 2. On the ground that this' would change the tenor and effect of the notes in suit by parol evidence; 3. Because S. E. Yilas, as president of said bank, had no power or authority to make any such arrangement or contract which would be binding on said bank. The evidence was received against the objections of the plaintiff. The offer by the defendant to prove by parol testimony an arrangement with the plaintiff bank that the notes in suit, by their terms payable in Plattsburgh, N. Y., were in fact payable at Swanton, Vt., to James Delaney, was an offer to prove by parol evidence the terms of the notes to be different from those expressed by the notes themselves. The testimony should have been excluded on this ground. Allen v. Furbish, 4 Gray, 504; St. Louis Perpetual Ins. Co. v. Homer, 9 Met. 39; Ins. Co. v. Moivry, 96 U. S. 544 (bk. 24, L, ed. 674); White v. Ashton, 51 N. Y. 280; Wakefield v. Stedman, 12 Pick. 562; Thompson v. Ketcham and Fitzhugh v. Runyon, 8' Johns. 190, 375; Parteriche v. Poiulet, 2 Atk. 383 ; Woolam v. Hearn, 7 Yes. 218; Edwards Bills, 140, 141 (2d ed.); Greenl. Ev. (13th ed.) 321; Davis v. Randall, 115 Mass. 547. It cannot be shown by oral evidence that a certificate of deposit, payable by its terms -in Iowa, is payable in the State of New York. Potter v. Tallman, 35 Barb. 182; Edwards Bills, 140 (2d ed.) n. 6.
58 Vt. 453Janes v. Fonda (1886)
Bill in Chancery. Heard on bill, answer and master’s report, September Term, 1875, Roycb, Chancellor. Bill dismissed. The master found that, November 28, 1857, one Smith owned a farm in Swanton, containing 182 acres of land, on which were situated certain quarries or ledges of limestone, and also one kiln and other buildings used in connection therewith for the purpose of carrying on the business of making lime; that a side track had been laid down from the Vermont & Canada Railroad to said kiln and about seventy feet béyond, which track was used for shipping the lime; that on said November 28, said Smith deeded the farm to L. Brainerd, Jr., reserving to “myself, my heirs, executors, administrators, and assigns, all the lime and cement stone,” etc., as set out in the head note; that the orator is the owner of the farm deeded to Brainerd, and the defendant carries on the business of manufacturing lime under and by virtue of the reserved rights now owned by T. H. Fonda. It was also found that the defendant took possession in 1877; that his business of manufacturing'lime had increased since that time, and that the necessity for increased facilities for receiving’ and storing wood had correspondingly increased; that he burned about 5,000 cords of wood in said business; that the extension of the track made by the defendant was necessary for the purpose of economically receiving and storing the wood; that the track now built and the land occupied in connection therewith are sufficient for the present business. The prayer of the bill was for an injunction to restrain the defendant from grading and building and using said railroad tracks.
58 Vt. 455Turner v. Moore (1886)
Action with two counts, one in trover, and one upon s. 4193, R. L., to recover for the conversion of a tombstone. Trial by jury, September Term, 1885, Walker, J., presiding. Verdict for the plaintiffs. Judgment reversed.
58 Vt. 457State v. Meyer (1886)
Criminal Law. Murder. R. L. s. 4086. 1. Juror, Qualification of — Opinion. An expressed opinion, founded on reports in newspapers of evidence given at a preliminary examination of a respondent, does not disqualify a juror, when his opinion was dependent upon the correctness of the reports. To disqualify there must be an abiding bias in the mind, based upon the substantial facts in the case, in the existence of which the juror believes. 2. Reasonable Doubt. The respondent requested the court to charge the jury that “if they believe that the evidence, upon any essential point in the case, admits of the slightest doubt consistent with reason, the prisoner is entitled to 'the benefit of that doubt and should be acquitted.” The court instructed the jury that if they “believe that the evidence, upon any essential point in the case, admits of any reasonable doubt — a doubt consistent with reason — the prisoner is entitled to the benefit of it; ” Held, no error. 3. Jurors Judges of Law. The court instructed the jury that they could adopt their own theory of the law, except they could not adopt a rule of law more prejudicial to the respondent than that laid down by the court; Said, that the charge was more favorable than the law to the prisoner, of which he could not complain. 4. Degrees of Murder — Expression of Opinion by Judge. The respondent was liable to be found guilty of murder in the first or second degree, or manslaughter;' Said, (a) that it was error for the court, in its charge to the jury, to define two of the crimes without defining the other; (6) that it was error for the court to express its opinion that, if the respondent was guilty, he was guilty of murder in the first degree; (c) that the court should have fully explained to the jury what constitutes each degree of murder and its distinguishing characteristics, so that they might have a correct standard by which to determine the degree. 5. Presumption op Innocence. The presumption is first in favor of innocence, and then of the lesser crimes in their order, of which the respondent may be convicted under the indictment; and the prisoner is entitled to the benefit of any reasonable doubt which the jury may have as to the degree of murder.
58 Vt. 468Goff v. Brainerd (1886)
General Assumpsit. Plea, set off. Heard on a referee’s report, September Term, 1885, Royce, Oh. J., presiding. Judgment for the smallest sum reported.
58 Vt. 470Kinsley v. Scott (1886)
Petition to foreclose a mortgage. Heard, on pleadings and proofs, September Term, 1885, Royce, Chancellor. It was decreed, pro forma, and without hearing, that the petition be dismissed. The petition set forth that Charles A. Scott, on May 8,1843, duly executed to the petitioner a mortgage deed of certain lands situated in Fletcher, in said county; that the land was a part of that set off to said Scott as one of the heirs of his father, Ira Scott; that the mortgage was conditioned that the mortgagor would keep and perform all the covenants of a deed of certain lands executed on the same day by said mortgagor to the petitioner; that an action of ejectment, in 1880, was commenced by one J. D. Scott against the petitioner, and judgment was rendered therein against the petitioner for a certain portion of said lands so deeded to the petitioner by the mortgagor; that a writ of possession was issued, etc., and that the petitioner was compelled to pay $350 for his title, and that his farm might not be badly cut up and injured. The other facts áre sufficiently stated in the opinion. The title of Harriet L. Parsons is fraudulent, and so not good against the mortgage in contention. There was no consideration for the deed executed by Charles A. Scott, July 7, 1842, to Guy Kinsley. A foreclosure suit is not the proper mode to litigate rights claimed in priority or hostility to the mortgage. Bank v. Thompson, 55 N. Y. 11; Lewis v. Smith, 9 N. Y. 514; Jones Mort. ss. 1396, 1439, 1445; Walwokth, Chancellor, in Ins. Go. v. Lent, 6 Paige, 637.
58 Vt. 474Rood v. Willey (1886)
Bill in Chancery. Heard on pleadings and testimony, September Term, 1885, Royce, Chancellor. Bill dismissed. The bill was brought by the orator as guardian to enforce the payment of a promissory note given by the wife of defendant A. U. Willey to said D. B. Rood for money loaned.
58 Vt. 476Barber's Adm'r v. Bennett (1886)
 Evidence. Memoranda. Bes Gestee. Deposition. 1. Memoranda of disputed items covering a period of ten years, made on a loose strip of paper, found by an administrator in his intestate’s desk, used by him in his dwelling-house, without any proof that they were original entries, except the appearance of the paper, or that they were made at or about the time when the right to charge first accrued, or that it was the intestate’s custom to make charges in like manner, although the administrator testified that they were in his handwriting, are not admissible, when offered, not to refresh the recollection, nor to corroborate the testimony, of a witness, hut as independent evidence to prove that the defendant was indebted to the intestate. 2. Declarations — Res Gestas. A part of the plaintiff’s claims was for money paid by his intestate for the defendant to the treasurer of a certain company. The defendant admitted that the intestate paid the money, but insisted that he was the owner thereof, and merely sent it hy him to pay to the company; Held, that the intestate’s declarations made at the time of payment, tending to show that it was his own money, and not the defendant’s, were admissible as a part of the res gestee. 3. Evidence. The plaintiff, for the purpose of establishing his claims, was allowed to introduce the books of account of a certain company with which the defendant had had dealings; Held, that it was error to exclude the defendant’s account with the same company. 4. Deposition. The defendant was cited “ to appear before E. H. Beer, a notary public, at the residence, etc., to be present at the taking of the deposition,” etc.; Held, that the naine of the magistrate before whom the deposition was to be taken, was sufficiently indicated in the citation.
58 Vt. 485Leach v. Peabody (1884)
Trespass for false imprisonment. Heard on an agreed statement of facts, June Term, 1884, Yeazey, J., presiding. Judgment pro forma for the defendants. The parties agreed on the following facts: The plaintiff, on November 19, 1874, was confirmed and appointed executor of the will of ‘ Ebenezer Leach. Said will was duly proved in the Probate Court, of which court the defendant, Bromley, was judge. On January 25, 1875, the executor filed an inventory of the estate. The amount of claims allowed by commissioners was $11.67. On October 10, 1876, the Probate Court, after due notice and hearing, ordered and adjudged that there should be added to the inventory certain bonds, mortgages, money, etc., in the possession of the testator at the time of his decease, amounting to $19,700. The widow, Rosina S. Leach, waived the provisions of the will in her favor. On October 10, 1876, an order was also made by the Probate Court, after due notice and hearing, allowing to said Rosina, as the widow of the testator, and her two minor children, being also the children of the said testator, and constituting his family, for their support during the settlement of said estate, the sum of $12 per month, to be paid her by said executor out of the personal estate of the deceased, on the 10th day of each and every month thereafter during the settlement of said estate; and also allowing her the use of the homestead and eighteen acres of land; and requiring the executor to pay her the further sum of $50 within one month to defray her expenses in procuring said allowance. Afterwards, on the 14th day of February, 1877, after due notice and hearing, a further like allowance of $18 per month in addition to said former allowance, was made by the Probate Court, which said executor was ordered to pay said Eosina as such widow for her support and that of her family, during the settlement of the estate. The executor appealed from both orders. The County Court and the Supreme Court dismissed the appeal. See Leach v. Leach, 51 Yt. 440. On the 23d day of February, 1878, the said Eosina presented her petition to the Probate Court, praying that the executor be cited before the court to show cause why he had .not obeyed said orders, and that he be punished for contempt in not obeying the same. After due notice and hearing the- evidence the Probate Court adjudged, that the executor wilfully and without cause refused to obey said orders, and that he was guilty of contempt of said court in not obeying and complying with the same. And it was ordered thereupon “ that he be committed for his said contempt to the common jail at Manchester or Bennington, and there to remain until he should obey and perfonn. said orders and decrees, or be otherwise delivered by due course of law. And a warrant for his commitment was, by order of the defendant Bromley, acting as judge of said Probate Court, issued” by the register of said court, dated March 3, 1879. The warrant was delivered by the register to the attorneys of said Eosina, and by them placed in hands of - the defendant Peabody, a sheriff, for service. The defendant, Peabody, committed the plaintiff by virtue of said warrant to the keeper of the jail at Manchester, on June 25,1879. The plaintiff remained in actual custody a portion of the time, and in nominal custody the remainder of the time, until he was released on a writ of habeas corpus. This imprisonment was the trespass complained of. See In re John Leach, 51 Yt. 630. The Probate Court denied an application for an appeal from the order adjudging the plaintiff guilty of contempt. The action of the defendant, Bromley, subsequent to the Ordering of the payments, was without jurisdiction. The warrant was void upon its face. The order upon the plaintiff was a final one. Leach v. Leach, 51 Vt. 440. The statute, R. L. s. 2035, authorizing the Probate Court to enforce its orders by imprisonment, is held to refer only to the control of specific property, and to such interlocutory proceedings as are necessary to bring matters to a final decree. In re Bingham, 32 Vt. 329. In the Bingham case the relator was discharged on the express ground that .the Probate Court had no jurisdiction of the process against the person to enforce a final decree for. the payment of the money. The same view was taken by Redfield, J., in In re Leach, 51 Vt. 630. The Probate Court has only special and limited jurisdictions. Brown v. Sumner, 31 Vt. 673; Holden v. Scanlin, 30 Vt. 180. A judge of a court of limited jurisdiction, who exceeds his jurisdiction, is liable. There is a clear distinction between judges of inferior and superior courts. Vaughn v. Congdon, 56 Vt. 116; Wright v. Hazen, 24 Id. 146; Miller v. Seare, 2 Bl. W. 1141; Taaffe v. Dotones, 3 Moore P. C. 41; Walbridge v. Hall, 3 Vt. 119; Bradley v. Fisher, 13 Wal. 335 (80 U. S. bk.; 20 L. ed. 646); Lange v. Benedict, 73 N. Y. 12; Busteed v. Far sons, 54 Ala. 393; Houlden v. Smith, 14 Q. B. 841; Watson v. Bodell, 14 M. & W. 57; Dynes v. Hoover, 20 How. 65; Clarke v. May, 2 Gray, 410; Crumond v. Raymond, 1 Conn. 40; Cooley Torts, 419. There was no jurisdiction of the subject-matter. The court could not issue an execution' against property or person. The subject-matter was what was presented by the petition; and that was a matter between the plaintiff and defendant in a common law form. The method adopted was, in effect, imprisonment for debt. The court, having no power to enforce its final decrees, could not apply the process of contempt to accomplish what it is not authorized to do. The allowance was a necessity. The court had exclusive jurisdiction; and the adjudication is final. Richardson v. Merrill, 32 Vt. 33; Sawyer v. Sawyer, 28 Vt. 245; Meech v. Weston, 33 Vt. 563. If the widow’s right to a maintenance is a debt against the estate, a remedy upon the executor’s bond might be appropriate; but it is not a debt, nor a claim in the nature of a debt. The order was only interlocutory, against a share of the property, which originated in no contract or implied liability. Wap. Pr. R. s. 571; Leach v. Leach, 51 Vt. 440; Adams v. Adams, -22 Vt. 50; Boydenv. Ward, 38 Vt. 628. The jurisdiction of the Probate Courts is the same, in matters of this kind, as that exercised by ecclesiastical courts in England. 15 Am. L. Rev. 428; Peters" v. Peters, 8 Cush. 529; Waters v. Stickney, 12 Allen, 12; Bronson v. Ward, 3 Paige, 18; 3 Bl. Com. 102. In this State there is no need of resorting .to the Court of Chancery for aid in compelling obedience to an order of the Probate Court, as that power is given to the Probate Court itself by statute. R. L. s. 2035; Gen. St. c. 48. s. 15; Seymour v. Seymour, 4 Johns. Oh. 409; Kimball v. Fisk, 39 N. H. 110;- 44 N. H. 258; 11 N. Y. 324. This provision should be held to mean just what it says. It is not inconsistent with the non-imprisonment act; for that act applies only to process “issuing on a contract express or implied.” Here was no contract obligation. 75 N. Y. 351; Wap. Pr. R. ss. 263, 543; Broivn v. Slater, 16 Conn. 192: Holcomb v. Holcomb, 11 N. J. Eq. 281; 2 Barb. Ch. Pr. 271; Patricks. Warner, 4 Paige, 397; 2 Jac. Fish. Dig. 2031; In re Cooper, 32 Yt. 253; Park v. Park, 80 N. Y. 156; Quidneck Co. v. Shaffer, 26 Alb. L. J. 356. It is a court of record; and the judge was acting in- a judicial' capacity. Cooley Torts, 408; 2 Add. Torts, ss. 883, 890; Lange v. Benedict, 73 N. Y. 12; E. B. Gaslight Co. v. Donnelly, 93 N. Y. 557; 15 Am. L. Rev. 428; Grove v. Van Duyn, 27 All. L. J. 86; Davis v. Strong, 31 Yt. 332; Stearns v. Miller, 25 Yt. 20.
58 Vt. 492Roberts v. Smith (1886)
Assumpsit. Heard on demurrer to the declaration, December Term, 1885, Walker, J., presiding. Demurrer overruled. It was alleged in the amended count that the defendant “made and delivered to one J. S. King, his promissory note in writing in words and figures as follows, to wit: “ ‘ November 17,1849. “ ‘ Two years from date, for value received, I promise to pay J. S. King, or bearer, one ounce of gold. “‘E. P. Smith.’ “ and thereby promised for value received to pay J. S. King' or bearer, one ounce of gold two years from date, which period has elapsed before the commencement of this suit. “And said plaintiff avers that thereafterwards, to wit: on the 20th day of November, A. D. 1849, at Manchester aforesaid, the said J. S. King, for a valuable consideration to him, then and there paid by said plaintiff, then and there sold, assigned, and transferred said note, to said .plaintiff, and said plaintiff then and there became and still is the .sole and absolute owner of said note of all of which defendant then and there had notice, and in consideration of the premises said defendant then and there specially promised the plaintiff to pay to the plaintiff the contents of said note according to the tenor and effect of the same; yet said defendant, though requested, has disregarded his said promise and has not paid the same.” The instrument is not a promissory note. Story Pr. Notes; Chit. Bills, 132; 1 Dan. Neg. Inst. 42. One ounce of gold is not money, but merchandise. Laterence ,v. Dougherty, 5 Yerg. 435; Quimbyv. Merritt, 11 Humph. 439. A note payable in current bills is not negotiable. Collins v. Lincoln, 11 Vt. 368. This instrument is not a promissory note under the law merchant or the law of Vermont, recognizing notes payable in specific articles. Although the form is a promise to pay, it is in effect merely a promise to deliver merchandise. The declaration.does not allege any consideration for this promise. The words “value received” -have been held to import a consideration in non-negotiable notes, but this is not a promissory note in any sense. The declaration alleges no breach of the contract except that defendant has not paid the same or any part thereof. This is not an allegation of a breach of a contract to deliver merchandise. There is no allegation of any value to the commodity to be delivered, or that by the failure to so deliver the plaintiff has suffered any loss or damage. The consideration is not properly stated. 1 Chit. PI. (16 ed.) 300, n. The plaintiff claims to recover as the assignee of a chose in action upon the special promise of the maker to pay the same to him. The law is well settled in this State — “ That the transfer of a chose in action not negotiable whereby the assignee becomes the absolute owner, whether it be by purchase or gift, is a sufficient consideration to sustain a special promise by the latter to pay such assignee, and an action may be sustained upon such promise in the name of the assignee.” Rob. Dig. 48; Smilie v. Stevens, 41 Yt. 321; Hodges v. Eastman, 12 Yt. 358; Buclclin v. Ward, 7 Yt. 195; Moar v. Wright, 1 Yt. 57. The count in question sets forth, that the plaintiff is the absolute owner of said instrument; that the defendant had notice of the transfer, and promised to pay the contents of the same to the plaintiff. The defendant by his demurrer admits the truth of these facts, and they are sufficient to entitle the plaintiff to a judgment. 41 Yt. 321; 12 Yt. 358.
58 Vt. 496State v. Hover (1886)
Information filed by the state’s attorney in the municipal court for the village of Bennington, July, 1885. The respondent filed a demurrer, which was overruled. It was alleged in the information that the respondent “ did solicit or receive a risk or application for insurance, as agent for the American Mutual Life and Accident Association of South Bend, in the State of Indiana, a corporation or insurance company, established by the laws of the State of Indiana, and not authorized to do business in the State of Vermont, and did then and there receive money or value for such insurance by the said American Mutual Life and Accident Association, contrary to the form, force, and effect,” etc. Section 3 of the Acts of 1884 is: “If any person, as agent for an insurance * * * * company, which has not complied with the requirements of section one of this act, shall solicit or receive a risk or application for insurance, or receives money or value for such insurance by such company * * * * jie shall be subject to a fine of not less than one hundred dollars.” In indictments and complaints for misdemeanors created by statute it is sufficient to charge the offense in the words of the statute. State v. Paddock, 24 Vt. 315. The information sets forth the offense with ' sufficient strictness and certainty and the respondent was not, as a matter of legal right, entitled to any further specification of the crime for which he was tried. State v. Bridgman, 49 Yt. 202. Again, if the respondent had any doubt as to what the particular charge was against him, the court would have ordered a more minute specification as to what particular offenses were relied upon, so that he would be in nowise harmed or misled. The respondent, on hearing before the municipal court, did not indicate the defect complained of. Had he done so, the defect, if any such there was, would have been promptly remedied. This statute imposes a penalty of from $100 to $500 for soliciting or receiving a risk or application for insurance under circumstances set forth in the statute. To solicit a risk is an offense. To receive an application is a distinct offense. Either of these calls for the punishment denounced by the statute. The information alleges that this respondent did one or the other of these unlawful things, but it does not, in any manner, indicate which, and the information i^ insufficient for that cause. 1 Bish. Cr. Proc. ss. 325, 585; State v. Moran, 40 Me. 129; State v. Woodward, 25 Vt: 616. The information is wholly silent as to whether the American Mutual Life and Accident Association had complied with sec. 1, of said Act. The very first clause of sec. 3, of No. 46, of the Acts of 1884, makes the unlawfulness of the thing done depend upon this fact, and it must be alleged or the information is insufficient. 1 Bish. Cr. Proc. ss. 513, a, 631, et seq.j State v. Day, 3 Vt. 138; State v. Northfield, 13 Vt. 565.
58 Vt. 498Stowe v. Bishop (1886)
 Evidence. Widoiu-Witness. Expert Evidence. Negligence. 1. In an action against a bailee to recover for injuries to a hired horse, claimed to have been caused by the defendant’s negligence in not hitching the horse, the bailee’s statements, made soon after the injury, that he was careless, and expected to pay for it, were admissible; but he could neutralize the admissions by showing that on reflection he had come to think otherwise. 2. The widow of the ownei-of the horse was a competent witness to the defendant’s declarations made in the life-time of her husband, it not appearing that they were made in his presence. 3. Expert. The opinion of a witness as to whether leaving the horse unhitched in a mill yard was the act of a careful and prudent man was not admissible.
58 Vt. 502State v. Walworth (1886)
Information filed by the State’s attorney for Bennington County, against the respondent, for a violation of his duty as deputy sheriff. Heard on demurrer, Veazey, J., presiding. Demurrer overruled.
58 Vt. 504Sheridan v. Sheridan (1886)
 Blander. Pleading. Innuendo. 1. Innuendo. Under tile rule that the office oí an innuendo is not to extend, but, in connection with the colloquium, to point the meaning intended by the use of the words, where the alleged charge was, “ Jou are an old prostitute,” uttered to a married woman, an innuendo is allowable which states the meaning to be, that she was guilty of the crime of adultery, if there is a proper averment of marriage. 2. So with a like colloquium a similar innuendo was held proper, where the alleged charge was, that the defendant said to two of the plaintiff’s children, “Ark your mother * * * what strange bull came along.” 3. Aiujumentativeness. The marriage was alleged with time and place and that they “ thence hitherto have lived together as'husband and wife,” etc. The alleged time of speaking the slanderous words was subsequent to the alleged time of marriage; Held, on general demurrer, a sufficient averment that the plaintiff was a married woman at the time the words were spoken; as argumentativeness can be taken advantage of only by special demurrer. 4. Also held, in an action in the names of husband and wife for words spoken of the wife, that the averment that the neighbors refused to have any transactions, acquaintance, etc., “ with the said plaintiffs or either of them,” etc., on general demurrer, is sufficient.
58 Vt. 509Lovejoy v. Raymond (1885)
[In Chancery.] Will. Legacy Charged on Beal Estate. Constructive Notice. Parties. • 1. A will, charging tlie real estate in contention with the payment of certain legacies, was recorded in the probate records. A deed of a part of the land executed subsequently by the residuary legatees,who accepted the real estate thus encumbered, specifically describing their interest and referring to the probate records, was recorded in the town clerk’s office. There were several mesne conveyances, in which reference was made to the said previous deeds. The defendants purchased without actual notice; Held, that the law will impute notice to them; that they were put upon inquiry and charged with such knowledge as they would or might have acquired by making inquiry; that the orators, those interested in the legacy thus charged, have an equitable lien on the entire estate; but that part undisposed of, if any, should be first applied in payment, and the defendants should pay the balance in order to redeem. 2. One of the legatees who refused to become an oratrix cannot be joined as defendant.
58 Vt. 516Boutwell v. Harriman (1885)
Trover with count in trespass. Plea, general issue. Trial by court, April Term, 1885, Powers, J., presiding. Judgment for plaintiff against defendant, Harriman; and for defendant, Wiswell, to recover his costs.
58 Vt. 519Waterman v. Buck (1885)
Bill in Chancery. Heard on bill, answer, master’s report, and exceptions thereto, December Term, 1884, Powers, Chancellor. A decree was entered, making the injunction against the defendants perpetual; and that the orator have a decree against O. & A. H. Buck for $490; against O. W. Stearns & Son for $70; against C. J. Patch for $60; against L. H. Parkhurst for $40; against Smith & Ladd for $40.
58 Vt. 524State v. Amidon (1885)
Criminal Law. Pleadings. Amendment. Constitution, sec. 32. When an indictment contains two counts charging the same crime, one ending with and the other without tlie words, “ contrary to the form, force, etc., and against the peace and dignity of the State,” the defective count can be amended by adding those words, although the Constitution provides that indictments shall conclude with the words, “ against the peace and dignity of the State”; as it ■ is a matter of form, and not o£ substance.
58 Vt. 527Clark v. Clark's Adm'r (1886)
Assumpsit for use and occupation. Heard on a referee’s report, June Term, 1885, Veazey, J., presiding. Judgment pro forma for the plaintiffs. The referee found that the plaintiffs, unmarried young ladies, are the children of L. P. Clark, who died July 12, 1882; that one Wilkins, who deceased in July, 1876, bequeathed the use of certain lands to the plaintiffs, another sister, and their mother, Frances Clark; that these lands consisted of two farms, on one of which the said Wilkins, at the time of his death, said L. P. Clark, his wife, and daughters, lived together as one family; that said Clark and his family continued to live on the farm until his death; that he had the control of both farms, and appropriated the income thereof to himself; .that the executor left Clark in the “undisturbed possession” of both farms, and in his settlement of his accounts, in 1883, with the Px’obate Court, did not account for the rents and profits of said farms; that the amount of debts proved against the estate of Wilkins was $4,540.24, including about $1,700, for which he was liable only as surety of said L. P. Clark. The said $1,700 having been adjusted in some way, so as to release the estate of said Wilkins, on March 2, 1883, the Probate Court decreed said real estate among the devisees named in the will. In 1877 the executor sold some of said lands, and from the avails of these and the personal property received enough to pay the personal debts of said Wilkins; and the plaintiffs claimed that, as their father received the use of the lands for about five years after the personal debts had been provided for, his estate was liable. It was found that the farm was much improved under Clark’s management; that the use of the farm, above improvements and taxes, was $100 per year; that one of the plaintiffs was generally at home, assisting her pax-ents, and the other taught school, boarding at home for the most part of the tixne; and that the girls fully earned what they received from their father ixi the way of suppox’t. To maintaixr an action for use arxd occupation, a contract express or implied must be proved. 6 Wait Act. & Def. 229; Tayl. Laxid. & T. ss. 25, G36; Stacy v. Vt. Gent. R. R. Co. 32 Vt. 551; Chamberlin v. Donahue, 44 Vt. 57; Watson v. Brainard, 33 Vt. 88; Moore v. Harvey, 50 Vt. 297. Uxitil the settlement of his account the executor of Wilkins’s will was entitled to the possession aixd the income of the land devised to the plaintiffs. K L. s. 2137; Roberts v. Morgan, 30 Vt. 319; Tryon v. Tryon, 16 Vt. 313; Boardman v. Bartlett, 6 Vt. 631. The real estate vested in the devisees on the death of the testator. Caseyv. Casey, 55 Yt. 518; Austin v. Bailey, 37 Yt. 219; Stockwell v. Sargent, 37 Yt. 16. It must be inferred from the facts that the defendant’s intestate held the premises by the plaintiffs’ permission. Stockett v. Watkins, 20 Am. Dec. M3. There is an implied obligation to pay where money or property is received. Paddock v. Kittredge, 31 Yt. 378; Ives v. Htdet, 12 Yt. 314. Assumpsit for use and occupation lies for an implied lease. Sutton v. Mandeville, 4 Am. Dec. 549; Gunn v. Scovil, Id. 208. The father, as guardian by nature, has no right to receive the rents and profits of his child’s lands. Jackson v. Combs, 7 Cow. 36; 5 Wait Act. & Def. 47; 9 U. S. Dig. 701, 712; Oakes v. Oakes, 16 111. 106. Defects of pleading were waived by the reference. Bachop v. Hill, 54 Yt. 509.
58 Vt. 533Benton v. Holland (1886)
Assumpsit. Heard on an agreed statement, June Term, 1885, Yeazey, J., presiding. Judgment for the defendant. The facts in their legal effect were similar in both cases. In both the Statute of Limitations was a bar, unless the payments made by the assignee had interrupted its running.
58 Vt. 536Gage v. Hoyt (1886)
General Assumpsit. Plea, general issue, and notice. Trial by court, June Term, 1885, Yeazey, J., presiding. Judgment, that the plaintiff recover “ six annual payments, of $60 each, for the six years next preceding the date of the suit, with interest thereon from date each fell due.” The deed was a deed of a farm occupied by the grantor and his wife. After the conveyance the. defendant took possession of the farm. The grantors received the suppoi’t as provided in the deed, but there was no evidence, except the deed, which tended to show that the annuity of $60, or any part of it, was ever paid. This suit was brought to recover that part of the consideration. The ground of defence was that the deed imported no promise or obligation to pay the $60 from year to year in the future, .but that it had been paid at the time of the conveyance. Orin Hoyt deceased after this suit was commenced — May 20, 1884. The other facts are sufficiently stated in the opinion of the court. By no rule of language or law can the words “ paid to our satisfaction ” by connection with any other words, or phrases, be construed into an agreement to pay, in the future. “Paid to our satisfaction” is almost universally used in deeds to express something already received by the grantor. 2 Pars. Con. 7, 8, 12, 76; Chit. Con. 95; Barker v. Troy & But. B. B. Go. 27 Yt. 766.
58 Vt. 538Hoyt's Adm'r v. Hoyt (1886)
[In Chancery.] Pleading. Answer. Plea. Party Insane. Objection to the capacity of a party to sue, as that he is insane, must be made by plea and not by answer.
58 Vt. 541Church's Adm'r v. McLeod (1886)
Trover. Trial by court, June Terra, 1885, Veazey, J., presiding. Judgment for the plaintiff. The defendant bought the heifer, or cow, of one Mrs. Dickinson, on the 6th day of June, 1879, and paid for her. At this time, but without the knowledge of the defendant, 'C. L. Church, since deceased, had an unpaid, duly recorded lien on the heifer to the amount of $22. A note had been given with a lien, February 8, 1878, payable the next December. The note had been partly paid.
58 Vt. 543Best v. Flint (1886)
 Sale. Implied Warranty. Chattels for a Particular Purpose. Recoupment. 1. There is an implied warranty in the sale of hogs purchased for the market, that they are fit for that purpose, when the vendee, having no opportunity of inspection, trusts to the judgment of the vendor to select them, and both parties understand for what they are intended. 2. And in case of a breach of such warranty, the vendee can recoup the damages, without a return of the chattels or an offer to return them.
58 Vt. 547Holmes v. Best (1886)
General Assumpsit. The suits were heard together by a referee. Report heard, March Term, 1886, Powers, J., presiding. Judgment in the suit of Holmes v. Best, that the plaintiff recover the sum of $33.34; and judgment in the suit of Best v. Holmes, that the plaintiff recover the sum of $64.67, — $30 of which was one half the amount received by Holmes of Newcomb.
58 Vt. 549McMurphey v. Harvey (1886)
Proceedings under the statute, charging the defendant with being the father of a bastard child. Trial by jury, September Term, 1885, Powers, J., presiding. Yerdict for the plaintiff. Both sides had introduced their evidence, and rested. One argument had been made for the complainant.
58 Vt. 551Boston Rubber Co. v. Peerless Wringer Co. (1886)
Assumpsit. Heard on a referee’s report, March Term, 1886, Powers, J., presiding. Judgment for the plaintiff. cited Preston v. Grant, 34 Yt. 201; Dana v. Brigham, 29 Yt. 1; Miller v. Holden, 18 Yt. 341. cited McDaniels v. Lapham, 21 Yt. 222; McDaniels v. Bank of Rutland, 29 Yt. 230; Towslee v. Healey, 39 Yt. 522;' Bromley v. School District, 47 Yt. 381; Donahue v. Woodbury, 6 Cush. 148; Potter v. Douglass, 44 Conn. 541.
58 Vt. 553Carter v. Nichols (1886)
Assumpsit. Plea, general issue, and notice of payment and settlement. Trial by court on an agreed statement, September Term, 1885, Powers, J., presiding. Judgment for the defendant. The facts are sufficiently stated in the opinion. The order was an assignment. Blin v. Pierce, 20 Yt. 25. Equitable assignments are recognized by courts of law; and an equitable assignment need not contain the whole of the claim. 2 Story Eq. Jur. s. 1044; 3 Pom. Eq.
58 Vt. 555Farnsworth v. Farnsworth (1886)
Divorce. “ Sufficient Pecuniary Ability to Provide,” etc. R. L. s. 2362. To entitle a wife to a decree under the statute — R. L. s. 2362 — authorizing a divorce on the ground of cruel neglect to support, when the husband has “ sufficient pecuniary ability toprovide,” etc., it must be shown that he was possessed of sufficient money or other available property to provide suitable maintenance, and that without cause he has cruelly neglected to use it for that purpose. The property may consist of money wages received by the husband for his labor during the time complained of; but he must actually have the requisite amount of money or other property; and it is not enough to show that he had capacity to acquire ample means, but being shiftless neglected to do it.
58 Vt. 558Lombard v. Batchelder (1886)
Trespass for assault and battery. Trial by jury, September Term, 1885, Powers, J., presiding. Verdict for the plaintiff to recover $425 damages. Held: in exemplary damages, if he (the master) is without malice, however evil the motive of the servant may have been. Hagan v. Railroad Co. 3 R. I.' 88; Wardrobe v. Stage Co. 7 Cal. 118; The Amiable Nancy, 3 Wheat. 546, 558; Railroad v. Finney, 10 Wis. 388; Cleghorn v. Railroad Co. 56 N. Y. 44.
58 Vt. 561Griggs v. Selden (1886)
 Principal and Agent. When one holds another out to the world as his agent, in determining the liability of the principal, the question is, not what authority was intended to be given to the agent, but what authority was a third person dealing with him justified from the acts of the principal in believing was given to him.
58 Vt. 564Howard v. Randall (1886)
Scire eacias to revive a judgment, returnable to the Washington County Supreme Court, May Term, 1885. The facts are sufficiently stated in the opinion.
58 Vt. 567French v. Town of Barre (1886)
Road Petition under secs. 2940-43 of the Revised Laws. At the September Term, 1885, Powers, J., presiding, the report of the commissioners was accepted and the highway therein described established. Two hundred and fifty dollars as damages were allowed the Methodist Episcopal Society of Barre.
58 Vt. 576Flannery v. Flannery (1886)
Bill in Chancery. Heard on the pleadings, master’s report and exceptions thereto, September Term, 1884, Taft, Chancellor.
58 Vt. 581Granite State Mutual Aid Ass'n v. Porter (1886)
Petition for mandamus. The petition set forth that the petitioner was a corporation chartered by the legislature of New Hampshire, where its home office was located; that it organized for the purpose of doing business of life insurance on the mutual and co-operative plan ; that December, 1884, it had 2,571 contributing members and now a still greater number; that the company has complied with the laws of New Hampshire as to making annual returns; that it has been and is of…
58 Vt. 585Badger v. Taft (1886)
Petition for mandamus to compel a chancellor to vacate an order made by him on a defendant to furnish security for costs that might be decreed against him in a proceeding to foreclose a mortgage.
58 Vt. 588Sawyer v. New York State Clothing Co. (1886)
Assumpsit brought to the April Term, 1885, against “ The New York State Clothing Company, a corporation created and existing under and by virtue of the laws of the State of New York, and having a branch house and doing business at the city of Burlington.” The officer’s return recited that service was made by delivering a copy of the writ to one Abraham Cane, treasurer.
58 Vt. 590Rumsey v. Nelson (1886)
Trespass on the case. Trial by jury, April Term, 1885, Taet, J., presiding. Verdict for the plaintiff. The defendant’s fourth request was: “It does not follow as a matter of law that a neglect to hitch the horse was negligence; nor can it be said as matter of fact that that was negligence.
58 Vt. 594State v. Intoxicating Liquors (1886)
Proceedings to procure the condemnation and forfeiture of three barrels of ale, seized by the sheriff of Chittenden County, without warrant, on the 8th day of October, 1885, under the provisions of the Act of 1882, No. 43. Heard in the city court for the city of Burlington, October 12, 1885. The court adjudged the ale forfeited. There were two eases, but similar as to facts.
58 Vt. 599Johnson v. Roberts (1886)
Audita Querela. Plea, general issue. Trial by court, April Term, 1885, Taft, J., presiding. Judgment for defendant. This action was brought to set aside the judgment of a justice of the peace. The judgment was made up as follows: Damages, $7; costs, $10.85. The judgment attacked by this proceeding was within the prohibition of the R. L. s. 1444. Audita will lie. Statutes which give costs are not to be extended beyond the letter. Salk. 206; 2 Str. 1006; 3 Burr. 1287; 3 Bl.
58 Vt. 601Waterman v. Clark (1886)
Trespass for removing an ice house, hog house, whey vats, etc. The two cases were tried together, April Term, 1885, Taft, J., presiding. Judgment for the plaintiff. The case is stated in the opinion. The right of the defendants to remove the structures is to be determined as it stood January 26, 1878, when the plaintiff entered and excluded the defendants.
58 Vt. 608Platt v. Towns of Milton & Colchester (1886)
Exceptions on the part of the city of Burlington to the judgment upon the report of commissioners, establishing a certain highway through the towns of Milton and Colchester, and assessing a portion of the expenses of constructing such highway upon said city, said defendant having been cited in after the decision of the commissioners establishing said highway, and upon the question of apportionment of the cost of construction. Heard by the court, April Term, 1885, Rowell, J., presiding. The judgment was, that the highway is established; and that the cost of constructing it is apportioned among the several towns and the city of Burlington. The town of South Hero was ordered to pay 30 per cent, of the cost; Grand Isle, 20 per cent.; Milton, 2 per cent.; Colchester, 15 per cent.; Burlington, 33 per cent. Burlington objected to the acceptance of the commissioners’ report: “ For that it appears that said road is not needed by its inhabitants for their own use, and will not be used by them; wherefore it cannot be assessed at all, as it is not enough that its inhabitants derive benefit therefrom by way of increased trade and business coming from the island towns.” The commissioners found in part: “And we are of the opinion that the towns of Milton and Colchester would be excessively burdened by defraying all the expenses aforesaid; and that the city of Burlington, in the county of Chittenden, and the towns of South Hero and Grand Isle, in the county of Grand Isle, in the vicinity of said road, and bridge, would be especially benefited by said road and bridge, * * * * and ought to bear a portion of the expense.” “ Therefore, we have apportioned, which we deem reasonable, the expense of building said highway,” etc. The County Court found: “The evidence before us shows that the inhabitants of Burlington do not need the road for their own use, and that they will not use it much; but we think it legally sufficient as a ground of assessing the city, that they will be benefited thereby, by the way of its bringing increased trade and business to them.” The County Court based its decision upon the benefit to be derived by the merchants of Bui’lington, through an increase of trade from the island towns. This is not the benefit contemplated ■ by the statute; that benefit is one arising from use only — travel by the inhabitants of the contributing town. If the principle laid down by the court is the one underlying this statute, it would compel every central or railroad town to maintain the highways throughout the surrounding tributary territory. The assessment was in strict compliance with the statute. R. L. s. 2975-7. The right to assess does not depend alone upon the one element, travel of the people of the town assessed. The statute makes no reference to such travel, either in laying or assessing the expense of highways. The right to assess, however, is made to depend upon the findings of the commissioners in an inquiry as to “ all the circumstances relating to the road and bridge,” their “ public utility,” etc. Jamaica v. Wardsboro, 47 Vt. 451. . We concede, that in order that Burlington should derive any especial benefit from this highway and bridge in Milton and Colchester, it should be used as a means of intercommunication between the inhabitants of Burlington and the inhabitants of those towns, or the towns beyond; but it is wholly unimportant whether the highway be considered as an outlet or inlet of Burlington, — whether an inhabitant of Burlington ever shall pass over it, so long as it remains an open route for receipt of trade and supplies from the people of the island, and for return of supplies to them. The benefit to Burlington is the same in either case, whether the inhabitants of the city and of the island meet for trade in Burlington or on the island, and, in a general sense, it might be said that Burlington used the highway as well in one case as the other.
58 Vt. 612Bronson v. Phelps's Estate (1886)
Heard by the court, September Term, 1885, Taft, J., presiding. Decree of the Probate Court affirmed. The case is stated in the opinion. It is clear that the testator, by the words “ children of the said Clarissa,” meant the then living children.
58 Vt. 623Weatherhead v. Stoddard (1886)
Appeal from a decree of the Probate Court. Heard on an agreed statement of facts and the will of Alanson E. Weatherhead, September Term, 1885, Royce, Ch. J., presiding. Judgment affirming the decree of the Probate Court. The decree of the Probate Court was: “ It is ordered and decreed by the court here that all the property and estate left in trust by the will of Alanson E. Weatherhead passes by the will of said Mary H. Weather-head as her will directs, and that the balance of $5,783.19 remaining in the hands of said executor be held in trust by the said E. W.- Stoddard during the life of Gertrude A. Lynde, now Mrs. Gertrude A. Hunt, and the annual interest and use thereof paid to her; after the decease of said Gertrude A. Hunt the principal to be paid and transferred to the residuary legatee named in the will of said deceased.” The fourth clause of the will commenced, as follows: “And in case the said Phoebe Mary Hope Weatherhead shall decease before arriving at the age of eighteen years, then I give and bequeath to the said Lysander W. Howe, the sum of five hundred dollars in current money, in case he shall survive, the said Phoebe, and the rest and residue of my estate, after the payment of the legacy aforesaid, to be divided as follows, to wit,” etc. The other facts are sufficiently stated in the opinion of the court. The testator gave nothing to his daughter by the third paragraph in his will. By it the estate was given to the trustees for her benefit, and was not to vest in her except on the condition precedent that the trustees should adjudge it best that it should so vest, which condition has never been performed. It is claimed that the fourth paragraph is conclusive of the testator’s intention to have his estate pass to his daughter when she was eighteen; but the fourth paragraph certainly did not give her the estate; it only disposed of it “in case the said Phoebe should decease before arriving at the age of eighteen years.” There are but two bequests in the will, including the provision for the daughter’s support, both of which are conditional: 1st. The bequest to the daughter, conditional on her becoming eighteen, etc., and on the trustees’ judgment and discretion. 2d. The bequest to the persons and in the shares named, conditional that the daughter did not live to be eighteen, and perhaps that the estate did not vest in her in her life-time. “ Conditions are subject to the well known division into conditions precedent and conditions subsequent. When the condition is of the former sort the legatee has no vested interest till .the condition is performed.” 2 Will. Ex. 1081; 2 Red. Wills, 283. Conditions precedent are such as must happen or be performed before the estate can vest or be enlarged; they admit of no latitude; they must be strictly, literally, and punctually performed. It is a known maxim that when the estate is to arise- upon a condition precedent, it cannot vest till that condition is performed. 2 Will. Ex. 1079; 1 Sliep. Touch, c. 6, 117. “ If the language of the particular clause, or of the whole will, shows that the act on which the estate depends, must be performed before the estate can vest, the condition is of course precedent, and unless it be performed the devisee can take nothing.” Marshall, Ch. J., in Finlay v. King's Lessees, 3 Pet. 376. A devise to a daughter when she shall be married, does not vest meantime, but goes to the heirs. 2 Burn Eccl. 562, 576. A devise to a man when he shall marry testator’s daughter does not vest till he marries her. 1 Keb. 802. Another rule is, when the legacy is given when the legatee attains a certain age, if the devisor directs the interest of the legacy to be applied in the meantime for the benefit of the legatee, there being an absolute gift of the interest, the principal will be deemed to have vested. See Patterson v. Ellis, 11 Wend. 298; 2 Red. Wills, 232; Vandryv. Geddes, 1 Russ. & M. 203; Atkins v. Hiccocks, 1 Atk. 500. The bequest was not made to Phoebe, but to the trustees for her benefit. It was not an immediate gift, the payment only being deferred, but both the bequest and the payment were deferred. There is no absolute gift of the interest to the daughter, that being given with the estate itself to the trustees with directions “to apply from time to time such portion, or, if necessary, the whole of the income to the support,-” etc., as they deemed necessary. There was a bequest over if the daughter did not marry or live to be eighteen. Had the estate vested, the bequest over would have been defeated. If it be a condition precedent to a gift of a legacy or other interest that the trustees should exercise their power in favor of the object — whether the power require an appointment by them or merely their assent to the gift — no interest will vest in the donee until the power be duly exercised, and if the trustees refuse or neglect to exercise it, the gift cannot be enforced. Hill Trust. 490; Perry Trust, ss. 19, 20, 507; Pinky. De Thuisey, 2 Mad. Ch. 157; Malcolm v. O' Callaghan, Id. 523; French v. Davidson, 3 Id. 205; Walker v. Walker, 5 Id. 257; Wheeler v. Walker, 2 Conn. 190; Downer v. Downer, 9 Yt. 231; Sharon v. Simons, 30 Yt. 458; Ferre v. Am. Board, 53 Yt. 162; Bacon v. Bacon, 55 Yt. 243; Greenoughy. Welles, 10 Cush. 571; Gibbons v. Shepard, 125 Mass. 541; 2 Red. Wills, 235; Lett v. Randall, 10 Sim. 112. We claim that the estate of Alanson E. Weatherhead, by virtue of his said will, vested in the said Mqxy H. immediately upon his decease, subject to be defeated, only, in the event of her death before arriving of age. And that upon her arriving at the age of eighteen years, said estate became absolute in her, and would have descended to her heirs had she died intestate. The appellant, who was one of the trustees under said will, insists that no portion of this estate became the property of the said'Mary; but just what construction he claims should be given to the will of said Alanson, and upon what legal grounds, we are in deubt. It was clearly the intention of the testator that his daughter and only child should have his estate in fee and possession, either in the event of her marriage, or when she became of age. If the said Mary H. had married and died under eighteen years of age, leaving children, would there be any doubt as to whom the testator intended to leave his ' estate ? If the testator did not bequeath his estate to the said Mary in the event of her attaining the age of eighteen, then it passed to her as his heir at law; for it is clear that the said Alanson E. made no provision for the disposition of his estate, if his daughter did not take the same upon becoming of age. In either event the said Mary could dispose of the same by her will. Doe v. Lea, 3 T. R. 41; Ashby v. Palmer, 1 Mer. 296; Good Title, ex. d. Hayward v. Whitby, 1 Burr. 229; Eastman v. Baker, 1 Taunt. 174; Doe, ex. d. Player v. Nicholls, 8 E. C. L. 92; Doe, ex. d. Cadogan v. Ewart, 34 E. C. L. 187; Doe v. Watson, 8 How. 263 (17 Curtis, 581); Oropley v. Cooper, 19 Wall. 168; Carpenter v. Heard, 14 Pick. 449; Rey, Ch. ss. 171, 211, 218.
58 Vt. 636Bemis v. Central Vermont R. R. (1886)
 Expert Evidence. Witness. Expert. Decision of Trial Court Final. Practice. Contributory Negligence. 1. The question was, whether a hoisting apparatus was negligently constructed by the defendant company, or negligently operated by the plaintiff in attempting, with the assistance of one man, to raise a stone weighing 3,(100 pounds; Held, that the opinion of a witness was not admissible, in effect that it was not prudent “ to use it with less than three men, on a stone of two tons’ heft.” 2. The plaintiff was injured while operating a crane or hoisting apparatus of unusual and peculiar structure; Held,, that expert evidence was admissible to prove that it was of sufficient capacity and in repair for the use intended. 3. The decision of the trial court that a witness has the requisite qualifications for an expert is not revisable. But an arbitrary ruling without evidence is revisable.
58 Vt. 642Wilder v. Davenport's Estate (1886)
 Deed, Construction of. Description by Metes and Bounds. Number of Acres “ More or Less.” Statute of Limitations. Action of Covenant. 1. A covenant to warrant and defend is assignable. 2. Description by Metes and Bounds. A description of land by metes and bounds cannot be overcome by another clause as to the grantor’s intent; thus, the description was: “Bounded * * * and west by Woodford line, supposed to contain 140 acres, more or less.” Then came a further description of the lands, as being the same described in two mortgages assigned to the grantor and foreclosed, which was followed by this clause: “ Intending to convey the same lands, and no other, which passed to me by virtue of the foreclosure of said mortgages.” The description of the west boundary in one of the mortgages and in the decree was the same as in the deed; Held, that the first clause of the description by metes and bounds controlled, and not the last-one relating to the grantor’s intent, although the grantee by such construction received more than 140 acres; and that the statement of the number of acres, “ more or less,” is matter of description, and not a covenant. 3. Statute of Limitations. In an action for breach of covenant to warrant and defend, the Statute of Limitations is not a defence, — as such covenant runs with the land. 4. Breach of Covenant. D. deeded to P. and took a mortgage back to secure the purchase price; P. deeded to B., and B., after D.’s mortgage'debt was overdue, conveyed by quit-claim to the plaintiff. A creditor of the plaintiff levied an execution on the lands, and D. foreclosed and no one redeemed. There was an eviction as to a part of the land; Held, that the plaintiff could recover of D.’s estate for breach of covenant. 5. Deed — Evidence. A deed shows no title of itself; and to make it proof of ownership it must be accompanied either with proof of possession corresponding to the deed or of title in the grantor. O. Pleading — Reference. If the declaration was defective it was cured by reference.
58 Vt. 649Pierce v. Harrington (1886)
Bill in Chancery. Heard on the pleadings and testimony, September Term, 1885, Walker, Chancellor. Bill dismissed.
58 Vt. 652Robinson v. Larabee (1886)
Assumpsit to recover the amount of a promissory note. Judgment entered by default against defendant G. W. Larabee. H. A. Larabee pleaded the general issue, Statute of Limitations, and special matter under notice. Trial by jury, May Term, 1886, Ross, J., presiding. As neither party claimed that there was any question for the jury, the court upon the testimony directed a verdict for the -plaintiff. Mr. Crane testified to bringing the petition for Larabee that he might be declared a bankrupt; to his being in due course adjudged a bankrupt, and the appointment of said Robinson as assignee; to the composition proceedings; to the facts attending the giving of the guaranty, etc.; but in view of the holding of the court as to the effect or tendency of Mr. Crane’s testimony, it is unnecessary to report it. The payment under the bankruptcy proceedings did not interrupt the running of the statute. Benton v. Holland, 1 New Eng. Rep. 783 (ante, 533). There was no consideration for the guaranty. Trumball v. Tilton, 21 N. H. 138. The arrangement under which the guaranty was given was in fraud of the Bankrupt Act, and therefore void. Trumball v. Tilton, supra; Downs v. Lewis, 2 Cush. 76; Dexter v. Snow, 12 Cush. 594; Blaisdell v. Bowie, 120 Mass. .447. Robinson -was an officer of the court. He could not use his official position to force the payment to him, by Lara-bee, of a larger per cent, than was paid to other creditors. Lovejoy v. Lee, 35 Yt. 436-37; Lawrence v. Clark, 36 N. Y. 128; Bliss v. Matteson, 45 N. Y. 22; Bump Bank. (9th ed.) 497; 13 Moak Eng. Rep. 52. cited 6 Cush. 239; 18 Yt. 448; 8 Mass. 127; In re Alphonse Bechet, 12 B. R. 201. It appears that the arrangement with Robinson was not effected until after the composition had been ordered by the court, and that the guaranty was then given to induce Robinson to take his percentage and give his receipt. The discharge had been already granted upon condition that the bankrupt pay a specified sum. Neither was it void at common law.
58 Vt. 655Kimball v. Evans (1886)
Trustee Process. The question of the trustee’s liability was, heard at September Term, 1884, Powers, J., presiding. Trustee held chargeable.
58 Vt. 658Foster v. Stafford National Bank (1886)
Assessment of damages on an injunction bond. Heard on the motion for assessment, February Term, 1886, Ross, Chancellor. Decree that the motion be overruled and the orator recover his costs. It appeared from the master’s report that the original case is reported in 57 Yt. Rep. 128; that the orator rebuilt a dam at the outlet of Willoughby lake and put in gates, for the purpose of regulating the flow of the water from the lake; that defendant owns about 2,500 acres of land in Westmore, hut none of it touches the lake except about two acres at the outlet, and extending down the Willoughby river, the outlet of the lake, some twenty to forty rods on both sides of the river; that defendant caused notice to be served on the orator that it should remove said dam and gates, and allow the water to flow in its natural channel; that orator commenced this suit and obtained a preliminary injunction on April 18, 1883, which continued in force until November, 1884; that some four miles down the river at Evansville there were three water-powers, used for manufacturing lumber, and about two miles below these were two other mills. The master found: “ None of the defendant’s lands, not even the two acres at the outlet, were damaged by the maintenance by the orator of the dam and gates at the outlet.” * * * “ The defendant insisted before the master that as injunction damages it was entitled to recover what the rental value of the control of the water at the outlet was for the seasons of 1883 and 1884. The orator insisted to the contrary and objected to any evidence tending to show such rental value. The master admitted it.” * * * “ If the defendant is entitled tq recover such rental value as damages, from all the evidence, which varied widely, I find the rental value of the control of the water of the lake for said seasons by means of the gates, etc., was $175.” * * * “ The dam would save, until a dry time, some three feet of water on the entire lake, and then the same could be let out to supply water to the mills on the stream.” The lake is about six miles long and two miles wide. The court held that the orator’s possession of the gates was unlawful. Foster v. Bank, 57 Yt. 128. Under the injunction he exercised exclusive and arbitrary control. It is unquestioned that defendant is entitled to nominal damages. For the violation of every right there is a remedy. Trespass is sustainable for an unauthorized entry on land, although no actual, specific damage is shown. 1 Sedg. Dam. 267; Dudley v. McKenzie, 54 Yt. 685; 16 Pick. 241; 1 Gray, 186. The measure of damages should be determined by the fair rental value of the property. 2 Sedg. Dam. 208; Center v. Hoag, 52 Yt. 401; Chicago v. Huenerbin, 85 111. 594; s. c. 28 Am. Rep. 626; New Orleans v. Gaines, 15 Wall. 632.. The defendant’s property had a rental value in the market, and of that value it has been deprived. The defendant is entitled to recover the $175 found by the master. Masterton v. Major, 7 Hill, 61; Bagley v. Smith, 10 N. Y. 489; Taylor v. Bradley, 39 N. Y. 129; Schell v. Plumb, 55 N. Y.- 592; Dennis v. Maxfield, 10 Allen, 138; Simpson v. B. B. Co. 1 Q. B. 274; Wakeman v. Wheeler & W. Mfg. Co. 2 Cent. Reporter, 130; Morrison v. Darling, 47 Yt. 67. The defendant had no right to exercise any control over the natural flow of the water from the lake, and consequently had nothing that it could rent. The decision of this case — 57 Yt. 128 — does not determine anything in reference to the defendant’s rights to control the flow of water. Col-lamer, J., in Davis v. Fuller, 12 Yt. 178; Johns v. Stevens, 3 Yt. 308; Parker v. Griswold, 17 Conn. 288; Buddington v. Bradley, 10 Conn. 213; Bood v. Johnson, 26 Yt. 64; 3 Kent. Com. 439. There was no damage; for if it had not been enjoined, it would have demolished the gates, so there could be no possible rental. Adams v. Barney, 25 Yt. 225; Red-field, J., in Collins v. Smith, 16 Yt. 9; Webb v. Webb, 16 Yt. 639.
58 Vt. 662Lyon v. Hayden (1886)
Assumpsit. Trial by Jury, February Term, 1886, Ross, J., presiding. Judgment for defendant. Renfrew testified as to what he told the defendant: “I was over there in a short time after he got it, to see him about some lumber one evening, and he told me he had lost the washer, and the thing had gone to bits and he could not use it.
58 Vt. 665Aiken v. Kennison (1886)
Trover for the conversion of a horse. Trial by jury, Boss, J., presiding. Yerdict for the defendant. The plaintiff’s evidence tended to show that on the defendant’s request, he, plaintiff, told him he would purchase a horse for him, and that defendant might have the horse when he paid for it; that defendant consented, and that thereupon he gave him the following writing to take to one Miller: “Plin Miller: “ If you trade with E. A. Kennison for a horse, I will pay you for him about the middle of this month. (Signed) “G. W. Aiken.” On the same day, January 9, 1883, the defendant took the writing to said Miller, traded for the horse, and took it into his possession. At the same time the plaintiff made the following entry in his book in his account against defendant: “ January 9. Horse of Pliny Miller.” The plaintiff’s evidence further tended to.show, that on February 16, 1883, he gave a written consent to the defendant, that he might exchange this horse for another horse provided lie, plaintiff, had the money paid in exchange, and also a lien on the second horse; that the defendant exchanged the horse, and soon after sold the one received. The defendant denied that plaintiff ever had any interest in or lien upon either of said horses; and his evidence tended to show that he made the purchase of the horse from said Miller in his own name and right, and took a bill of sale from said Miller therefor at the date of the purchase; that plaintiff gave him the writing before mentioned merely for the purpose of assuming the payment of said horse, and not for the purpose of purchasing the said horse for himself, or of acquiring any lien on it. On trial the plaintiff produced his book showing his account with the defendant, and showing the entry in pencil above named, and the same were put in evidence without objection. The plaintiff’s counsel then proposed to ask the plaintiff upon his examination in chief, whether he had had other transactions of a similar nature with other people dealing with him. The evidence was excluded. When the defendant took the horse from Miller he also took a common bill of sale of the horse. The bill of sale was offered on the trial as evidence in behalf of the defendant and admitted. There was error in excluding the evidence offered to show .that the plaintiff had had other transactions with other people of a similar nature. Houghton v. Clough, 30 Yt. 312; Hine v. Pomeroy, 39 Vt. 211; Hardy v. Cheney, 42 Vt. 417, 421;. Missisquoi Bank v. Evarts, 45 Vt. 293; Soule v. Burton, 36 Vt. 652, 656. The bill of sale was not admissible. 2 Best Ev. 877; Way v. Holton, 46 Vt. 184; Worden v. Powers, 37 Vt. 619-621; Wilmot v. Charter Oak Life Ins. Co. 46 Conn. 483, 496; Stirling v. Buckingham, 46 Conn. ±(AA<54:?Moofev:Meacham, 10 N. Y. 207, 210; 57 Vt. 278. The evidence excluded by the court related to matter wholly inter alios. It had no tendency to prove that plaintiff had a lien on the horse. Boy den v. Brookline, 8 Yt. 284: Phelps, Dodge & Co. v. Conant & Co., 30 Yt. 277; Bishop v. Wheeler, 46 Yt. 413; Nones v. Northouse, 46 Yt. 592; Walworth v. Barron, 54 Yt. 684. The bill of sale was admissible. 1 Greenl. Ev. (12thed.) s. 108; 2 Best Ev. (Wood’s ed.) s. 495; Elkins v. Hamilton, 20 Yt. 627; Bank of Woodstock v. Clark, 25 Vt. 308; Boss v. Bank, 1 Aik. 43; State v. Howard, 32 Yt. 380; Danforth v. Streeter, 28 Yt. 494; Eddy v. Davis, 34 Yt. 209; Hill v. North, 34 Yt. 616.
58 Vt. 670Walworth v. Jenness (1886)
Trover. Plea, the general issue and notice that the goods and chattels claimed to have been converted were taken on a wi'it of attachment and execution in favor of one William Twombly and against one Eben A. Grant. Trial by court, February Term, 1885, Ross, J., presiding. Judgment for the plaintiff. The case was heard on an agi’eed statement. On November 8, 1873, the firm, Twombly, Grandy & Skinner, entered into the following agreement with oxie Grant: Said Graxit covenanted to clear and carry on a certain lot of land owned by said company. The land was to “be planted with such seed as may be agreed upon between the parties except the piece already cleared, at the date of this agreemexit, in the southwest corner of said lot, which shall be plowed and cultivated and planted for the first two years with potatoes, after which it shall be planted with sucíx seed as may be agi’eed upon betweexi the parties; said land to be carried on until a date including two (2) seasoxis after the last piece shall be cleared,” * * * “ and it is further understood and agreed between the parties that each party is to furnish one half (i) of the seed used in planting said land; that the products of said husbandry shall be equally divided between the parties; and that said party of the first part is to deliver the share of said products belonging to said party of the second part, each year, unless the same shall be otherwise disposed of, at Barton Landing in good condition axid suitable for market.” On March 26,1875, said Grandyand Skinner conveyed their interest to said Twombly, and on October 14, 1875, Grant and Twombly signed another contract relating to the land, of which the following is a part: “And the said Grant agrees to cultivate said land as fast as he clears the same in good husbandlike manner at all times, and to fence the same from timber cut therefrom, in a proper and suitable manner for such land, and to give said Twombly one half of all the crops raised therefrom. And the said Grant is to deliver said Twombly’s share of said crops to him at the village of Barton Landing aforesaid, etc., etc.; and the said Twombly further agrees that said Grant may occupy and cultivate and carry on the land so cleared by him as aforesaid upon the terms and conditions above written until January 1, A. D. 1879.” The writing from said Grant to the plaintiff was as follows: “This agreement made this 17th day of April, A. D. 1877, by and between Eben Grant and D. P. Walworth, witnesseth: that I, the said Eben Grant, in consideration of debts, claims, and demands, which said Walworth has against me, and seed grain furnished me by said Walworth, do lease and farm let unto said Walworth the following property, to wit: “A lot of land known as the Albert Leland lot, situated in Barton,” * * * “ and being the same premises leased tome by a contract dated November 8, A. D. 1873,” * * * “meaning to convey to said Walworth all my interest in said land, as conveyed to me by said contract. All of my share of the crops and products raised on said land to be and remain the property of said Walworth in full title and control. And I, the said Grant, do further agree to carry on and farm said land in a good and husbandlike manner, and to be at all the expense thereof: “And I, the said Walworth, agree to apply all the avails arising from said crops and products on the before-mentioned debts, claims, and demands I hold against said Grant. ” Said contracts were witnessed, sealed, acknowledged, and recorded. Immediately after the making of said contract, said Grant went into the possession and occupation of said land under said contract, and remained in the possession and occupation of the same until some time after the 'taking and sale of the potatoes. Said Walworth has never waived nor released any rights he acquired by virtue of the writing from Grant to him unless he has done so by not exercising • any act of ownership or possession over said land or over the potatoes, except such as he may have exercised by receiving and recording said instrument in writing. The potatoes were grown on the land in the season of 1877, and were raised by said Grant and were taken by defendant as constable on a justice’s execution in favor of said Twpmbly against said Grant. , No title passed to the plaintiff of the future crops. 10 Exch. 292; 5 El. & Bl. 830; 3 H. & N. 964; 17 C. B. 462; 15 M. & W. 110; 2 Exch. 542; 7 Q. B. 850; 5 Mass. 522; 2 Cush. 50; Id. 303; 10 Met. 481; 13 Met. 17; 58 Ga. 574; 55 Ga. 543; 20 Barb. 37; 86 111. 591; 7 Wis. 159; 41 N. H. 456; 65 N. Y. 459; 41 Barb. 404; 65 Ala. 256. Grant had an assignable interest in said land and the crops to be grown thereon. His interest, therein passed to plaintiff by said lease or conveyance. The record of the conveyance to plaintiff was notice to defendant of plaintiff’s title to the potatoes, if such notice were necessary; but no notice was necessary to protect plaintiff’s rights. A change of possession of said potatoes, when grown, was not necessary to protect plaintiff’s title, as against subsequent attaching creditors. The grant to the plaintiff was an interest in real estate, and the title to the crops vested in the plaintiff while they were a part of or an incident to the realty. Bellows v. Wells, 36 Yt. 600; Fitch v. Burk, 38 Yt. 683, 689, 690; Leavitt v. Jones, 54 Yt. 425, 526; Hull v. Hull, 48 N. H.; Jones Chat. Mort. s. 140; 2 Add. Con. (Morgan’s ed.) s. 657; Fetch v. Tutin, 15 M. & W. 113, 116.
58 Vt. 676Clark & Freeman v. Patterson (1886)
Case against the defendant as sheriff. 'Trial by court, September Term, 1885, Ross, J., presiding. Judgment for the plaintiffs to recover the sum of $192.20. The case appears in the opinion. The right to complete the service of the writ existed by common law. In the passage of R. L. ss. 860-61, the legislature simply intended to modify a right that then existed at common law. Before the passage of that law, a sheriff, having commenced the service of a process before the expiration of his term of office, could complete it afterwards; After the passage of those sections, the sheriff could not only complete a service, but could serve “ writs and precepts in his hands ” at the expiration of his term whether service had been commenced or not; and this was the only alteration in the common law upon that point. Ferguson ,v. Lee, 9 Wend. 258; Tuttle v. Jackson, 6 Wend. 224. All that Jenness did after his appointment as guardian was to deliver the copies to the Eatons; and this he could lawfully do. Beattie v. Eobin, 2 Vt. 181; Pearsons v. French, 9 Yt. 349; Fifielcl v. Wooster, 21 Yt. 215; Drake v. Mooney, 31 Vt. 617; Collins v. Perkins, 31 Vt. 624; Jewett v. Guyer, 38 Vt. 209. ■ Jenness could not complete the service of the writ after he was appointed guardian of the plaintiff. His attachment must be treated as abandoned. He became interested and a party plaintiff. Abbott v. Clark, 19 Vt. 444; Pepper v. Stone, 10 Vt. 427; Tyl. Inf. 260; Holden v.' Scanlan, 30 Vt. 178; Lincoln v. Thrall, 34 Vt. 113; R. L. s. 854; Eyre v. Countess of Shaftesbury, -2 Wms. Peere, 102; Kelly v. Paris, 10 Vt. 261; Bank v. Parsons, 21 Vt. 199; Cleveland v. Deming, 20 Vt. 534; Nelson v. Denison, 17 Vt. 73; Warren v. Stockwell, 9 Vt. 1; Sewell v. Harrington, 11 Vt. 141; Clark v. Lyman, 10 Pick. 45; Smith v. Saxton, 6 Pick. 483.
58 Vt. 683Saville, Somes & Co. v. Welch (1886)
 Principal and Agent. Assumpsit. Pleading. Reference. Amendment. 1. There can be no ratification of an agent’s acts by the principal without a knowledge of the materia] facts; thus, A fraudulently obtained possession of a chest of tea by ordering it of the plaintiff in the name of the defendant, who received a bill or invoice of the tea, and delivered the bill to A on his request and on being- told by A that he ordered it as he did lest it might be attached; but A did not tell the defendant that it was bought on his credit; and defendant gave no notice that he was not the purchaser; Held, that the mere silence of the defendant was not a ratification. 2. The tea with other goods subsequently, was sold at auction under the statute on a chattel mortgage owned by the defendant, and was bid off by him; Held, that this purchase was not a ratification by the defendant, as he supposed that Awas the owner. 3. Pleading — Assumpsit. The proceeds of the auction sale were applied on the defendant’s mortgage debt against A; but it did not appear how much the tea thus obtained by fraud sold for; Held, assuming that the title never passed, that the case is not within the rule, that when one’s property is wrongfully taken and converted into money or its equivalent, the owner may waive the tort and sue in assumpsit; and that the plaintiff’s only remedy was trespass or trover. 4. Amendment — Reference. An amendment that changes the form of action is not allowable.
58 Vt. 689Dixon v. Blondin (1886)
Replevin. Heard on a referee’s report, December Term, 1885, Ross, J., presiding. Judgment for the plaintiff. The bill of sale was as follows: “ Lyman, N. H., March 17, 1884. “ This is to certify that I have sold and delivered to J. O. Belanger one black horse, seven years old, for the sum of one hundred and thirty-five dollars, and received twenty-eight dollars on the same.
58 Vt. 694State ex rel. Prouty v. Adams (1886)
Quo Warranto. By the complaint and answer, it appeared, that the town of Marlboro, at its annual meeting, voted on the question, whether it would abolish the district system and adopt the town system; that'the first vote resulted in a tie vote,' — that is, 20 votes in favor of abolishing the district, and adopting the town, system, and 20 votes against it; that afterwards, at the same meeting, a second vote was taken, resulting in five majority for the town system; that the…
58 Vt. 696Weeks v. Sowles (1886)
Action of debt on a decree of the Probate Court. Heard on demurrer to the declaration, April Term, 1885, Royce, Ch. J., presiding. Demurrer overruled, and declaration adjudged sufficient.
58 Vt. 702Corliss & Way v. Grow (1884)
Heard on a referee’s report, December Term, 1883, Rowell, J., presiding. Judgment for the plaintiff. The plaintiff must show affirmatively that the bar of the statute is removed. Wood Lim. ss. 98, 116; Biggs v. Roberts, 85 N. C. 151.
58 Vt. 705Ellsworth v. Hopkins (1886)
Assumpsit. Heard on affidavit of defence, September Term, 1885, Veazey, J., presiding. Judgment for ¡the plaintiff. The case appears in the opinion. cited Sweat v. Hall, 8 Yt. 187. cited R. L. s. 2322; Hubbard v. Bugbee, 55 Yt. 506.
58 Vt. 707Lyon v. Osgood (1886)
Bill in Chancery. Heard on pleadings and master’s report, September Term, 1885, Yeazey, Chancellor. Bill, pro forma and without hearing, dismissed. The bill alleged the insolvency of the executor, when he was appointed; that he “represented to the orator that said estate was all in funds and readily convertible and mostly coming to him, said Osgood, and so situated as to be closed up within six months, and thus induced the orator to become surety upon his said executor’s bond in the sum of $10,000 ”; that one of the legatees had commenced a suit to recover her legacy; that the presentation by said Osgood to said Probate Court of the balance of said note, as available funds or means of said estate in the hands of said executor for distribution by said court among said legatees, was, and was known by said executor and said legatees to be, a fraud upon and would work great wrong and injustice to the orator, and prays that said decree of distribution may be vacated and held inoperative against the orator. The prayer was, that an investigation be had as to the value of the executor’s note; that an injunction may issue restraining further proceeding in the suit at law; and that the orator may be absolved from all liability upon said bond for any legacy or decree of said Probate Court awarding any sum to said Osgood or his heirs, and to the said Lydia A. Osgood, the wife of said Daniel R. Also all liability to either of the other devisees or their or either of their heirs, except for such share or shares of said legatees under said will as shall have been paid or collected on said note or of the value of said note, to be ascertained by said Court of Chancery. The other facts are stated in the opinion. Mrs. Osgood is as much, entitled to her share as either of the others. The husband could not reduce it to his possession. White v. Wait, 47 Yt. 502. The settlement in the Probate Court was a gross fraud on the orator, and a court of equity has jurisdiction. Viele v. Hoag, 24 Yt. 46, 51; Holmes v. Holmes, 36 Yt. 538; Story Eq. Jur. ss. 590, 496; Harker v. Iriek, 10 N. J. Eq. (2 Stock.) 269; Holmes v. Holmes, 36 Yt. 529. The English courts, since the days of the Year Books, have treated the debt as paid, and some of our American courts have held such a debt to be funds in hand, but our own courts have fixed some limitations to the rule. Adams v. Adams, 22 Yt. 50; Kinney v. Ensign, IS Pick. 232, 235-36. The adjustment of this executor’s account, and the ascertainment of the amount in his hands, is a judgment in rem, fixing the status of the estate and charging the legacies upon it. The surety upon the executor’s bond is bound by that judgment. Bobinson v. Swift, 3 Yt. 283; Bix v. Smith, 8 Yt. 365; Probate Court v. Merriam, 8 Yt. 234; Sparhaiok v. Buell, 9 Yt. 41; Probate Court v. Van Duzer, 13 Yt. 135; Bichardsonv. Merrill, 32 Yt. 27; Cheetham-v. Ward, 1 B. & P. 630; Freakley v. Fox, 9 B. & C. 130; 17 E. C. L. 343. The surety is liable. Stearns v. Gaylord, 11 Mass. 255; Winship v. Bass, 12 Mass. 199; Mfg. Co. v. Story, 5 Met. 310; Faster v. Pierson, 27 Iowa, 90; Leland v. Fulton, 1 Allen, 531. This whole subject has recently been before the Supreme Judicial Court of Massachusetts, and all the cases in that State, as well as many in other jurisdictions, including the English cases, are thoroughly reviewed. The case of Kinney v. Ensign is declared to be exceptionable and its authority confined to the facts upon which it was decided, and not in contravention of the general doctrine. Tarbell v. Jewett, 129 Mass. 457; Choate v. Thorndike, 138 Mass. 371; Harker v. Irick, 2 Stock. 269; Norris v. Tovole, 54 N. H. 290; Benchley v. Chapin, 10 Cush. 173.
58 Vt. 718State ex rel. Cawley v. O'Hearn (1886)
Quo Warranto. Voter. Check-List. R. L. ss. 71, 2644, 2656. Parol Evidence. Naturalization. R. L. chap. 74. Civil Authority. 1. While the vote of a person whose name is on the check-list, and who is a resident, cannot lawfully he rejected, yet the list is not conclusive that he is a legal voter. 2. In making a check-list of voters, the annual assessment list, which is completed, and the last one preceding the time of making the check-list, governs; thus, in making a voting list in April, 1886, the assessment list of 1885 should be used. 3. Parol Evidence — Naturalization. Parol evidence is not admissible to prove . that a foreigner has been naturalized, the question being whether he was a voter; a certified copy of the record is required. 4. Board of Civil Authority-. The statute requiring check-lists did not change the power of the hoard of civil authority.
58 Vt. 722State v. Perkins (1886)
Complaint charging the respondent with the illegal sale of intoxicating liquor. Heard on motion to dismiss, April Term, 1886. Motion pro forma overruled.
58 Vt. 724In re Leahey (1886)
Habeas Corpus. Administrator. Body or Certified Execution. it. L. ss. 1485, 1503. The relator was administrator, and after receiving $1,100 belonging to the estate, resigned without paying the money to his successor, though ordered to do so by the court. The second administrator brought suit, recovered judgment for the money, a certified execution was issued, and the relator was imprisoned in jail; Held, that he could not lawfully be discharged on habeas corpus.
58 Vt. 727McLeod v. Conn. & Pass. R. R. R. (1886)
Action on the case to recover for injuries claimed to have resulted through the defendant’s alleged neglect to properly maintain a railway crossing across a highway, in accordance with the provisions of the statute law of the Province of Quebec. Heard on demurrer to two new counts, September Term, 1884, Ross, J., presiding. Demurrer overruled, and counts adj udged sufficient.