Volume 59 — Vermont Reports

<p>Bill to foreclose a mortgage. Heard on tlio pleadings and a special master’s report, Mareli Term, 188'5, 'Washington County, Powers, Chancellor. Decree pro forma, that the bill be dismissed. The facts are stated in the opinion.</p> <p>So long as the relation of mortgagor and mortgagee exists the statute does not commence to run. 2 Jones Mold. s. 12 ; Waldo y. Pice, 14 Wis. 286 ; Green v. Turner, 38 Iowa, 11.2 ; Gratoford v. Taylor, 42 Iowa, 260. The payments made by Calvin affect Mahala and Edson the same as though made by them. 2 Jones Mort. ss. 1198, 1201; Pears v. Lainge, L. R. 12 Eq. 51; Martin v. Bowher, 19 Vt. 526; Harrington v. Slade, 22 Bari). 161; 32 Conn. 288 ; Bacon v. Mclniire, 8 Met. 87; Hughes v. Edwards, 9 Wheat. 146, 489; Converse v. (Jooh 8, Yt. l’(>4.</p> <p>There can be no foreclosure of the land purchased by the said Mahala. As to this, the debt is conclusively presumed to be paid. Whitney v. IPreneh, 25 Yt. 668. She never, in any Avay, acknowledged the mortgage, and did not know of its existence. The mortgage then would rest'on the balance of the real estate. Lyman v. Lyman, 32 Yt. 79 ; Root v. Collins, 34 Yt. 173.</p>

Aiu’bal by the plaintiff from a decree of the Probate Court of distribution of the estate of Alfred Ladd, denying to the plaintiff any benefit under said Ladd’s will. Heard on a commissioner’s report, April Term, 1886, Franklin County, Roy on, Ch. J., presiding. Judgment pro forma, and without hearing on the report for the defendant. It appeared that the plaintiff, The Vermont Baptist State Convention, was a corporation duly chartered by the legislature.

GeN'eual Assumpsit. Pleas, general issue, and special pleas in liar. Trial by jury, June Term, 1884-, Orange County, Howell, J., presiding. Judgment for the plaintiffs on-a special verdict to recover $1,487.50 for 175 cords of liarle burned, also the interest, $89.49, and $4.01, the balance of bark actually carred.

<p>Taxation. Ad, of 1880. Lidera’ Oath. R. L. ss. 329, 331. Act of Legislature legalizing Grand List. Retrospective Statute. Vested Right.</p> <p>1. The legislature has power to puss a retrospective act legalizing a grand list which was irregular or invalid, because the listers had only taken, hut had not subscribed, the preliminary oath required by the statute, K. L. s. 329; and such grand list was admissible as evidence in an action to recover taxes assessed on Unit list, both before and after its legalization.</p> <p>2. The statute — Ji. L. 3. 331 — requiring listers to lodge in the town clerk's office an abstract of the personal lists of all taxpayers for their inspection, is mandatory. Sudi abstract, is an official paper, anil must be, signed, verified and authenticated by Ihe listers in such unmistakable manner as to can-yon its face fair evidence of its character; and if it is not, the grand list is invalid, and not admissible as evidence.*</p>

ActioN of assumpsit by the plaintiif as collector of taxes for the town of Brownington, to recover of the defendant taxes assessed on tlio grand list of said town for the years 1881 and 1882. Plea, general issue. Trial by jury, February Term, 1886, Orleans County, Ross, J., presiding. Verdict and judgment for the plaintiff. The case appears in the opinion. To the personal list should have been appended the oath named in the statute. R. L. s. 239.

<p>PETITION under No. 11 of the Acts of 1884.</p> <p>Heard on the report of commissioners, September Term, 1885, Franklin County, Royce, Cli. J.¡ presiding.</p> <p>Petition dismissed. The petition, commencing, “Your petitioner, the town of Sheldon,” etc., was brought.to the County Court of Franklin County, and was signed by the selectmen of Sheldon. The petition described the bridge; alleged that it was unfit for use and dangerous by reason of decay; that several other towns, naming them, in the vicinity would be benefited, etc. ; that the petitioner was bound by,law to maintain the.bridge; that the petitioner deems itself excessively ■burdened by being required to build and maintain said bridge. The prayer was that the court would appoint commissioners to act in the premises, to examine into the matters set forth, and to report to the court, and that the court, upon the coming in of the report, adjudge that said bridge, abutments, etc., be rebuilt, and that the court appoint-a commissioner, who should have charge of the work, etc. To the petition was attached a citation, signed by the clerk of the County Court, directed to George W. Purleson, state’s attorney for the County -of Franklin, commanding him to appear before the County Court on the second Tuesday of April, 1885, to answer to said petition, and represent the interest of tlie State. A party- was recognized to the State of Vermont as surety for costs. The petition was served on the slate’s attorney, commissioners were appointed, and they were sworn, and a warrant was issued to them signed by the clerk of court. The three commissioners issued a notice, which was served-by a sheriff on the state’s attorney and on the selectmen' of the petitioner and of the several towns in the vicinity. The commissioners made their report to the September Term, 1885, of the County Court of Franklin County. The other facts are sufficiently stated in the opinion.</p>

<p> Towns. Highways and Bridges. Acts of 1884, Hos. 11 ■ and 18. Aid from the State. Construction of Statutes. Constitutional Bato. </p> <p>1. Two statutes, Nos. 11 and IS, Acts oí 1884, related to tlie same tiling, tlie same class of persons, and liad the same object in view, namely, relief to towns excessively burdened in building or rebuilding their bridges. The remedy afforded by one is against the State, and by tlie other against an adjoining town; Held, that they were in pari materia, and should be construed as one statute.</p> <p>2. Construing both acts as one in a proceeding against the State, commissioners should be sworn, and there should be an apportionment of expenses, the same as in a proceeding against a town.</p> <p>3. CONSTITUTIONAL Law. Act STo. 11, Acts of lSSl, granting aid from the State to a town excessively burdened in building its highways and bridges, appropriated no specific sum therefor, but directed the auditor to draw orders on the state treasurer for the amount required by judgments rendered by the courts against the State in proceedings under the act; and at the same session a genera] appropriation act was passed ‘‘ tor the purpose oí paying such demands against the State as may lie allowed by the auditor oí accounts”; Held, that the statute does not violate that section of the Constitution which provides that “ no money shall he drawn out of the treasury, unless first appropriated by act of legislature.”</p> <p>4. Equal Taxation. A general statute, applying to all highways under like conditions, granting aid from the State to towns excessively burdened in building or rebuilding highways, does not violate the principle of equal taxation.</p>

Teespass guare clausum fregil, with counts in case, brought for injury done by the defendant’s cattle trespassing upon the plaintiff’s land, and also to recover damages suffered by plaintiff in consequence of defendant’s neglect to support his proportion of the division fence. Plea, general issue. Trial by jury, June Term, 1885, Orange County, Rowell, J., presiding. Verdict for the plaintiff.

G-eNekal Assumpsit. Plea, the general issue'. Trial by jury, September Term, 1885, Washington County, Powers, J.,- presiding. Verdict for the plaintiffs. The plaintiffs owned a quantity of logs in the mill yard of one L. T. Kinney., and bad contracted with him to saw them. The defendant, having seen the logs and having had some talk about buying them, wrote the plaintiffs a letter accepting their offer, and agreeing to take the logs and give $15 per thousand.

PiiORECtmoN of probate bond signed by defendants Sawyer, W. II. H. Kenfield, and C. C. Morse. Heard April Term, 1886, Lamoille County, Powers, J., presiding. Messrs. Brigham & McFarland, the attorneys for the heirs of Jonas Moore, signed the application to the Probate Court for leave to prosecute the bond.

Trespass and trover for certain personal property secured by a chattel mortgage executed by defendant to the plaintiff. Trial by jury, September Term, 1885, Washington County, Taet, J., presiding. Verdict for the plaintiff.

ActioN on a-contract. Plea, general issue. Trial by jury, April Term, 1885, Franklin County, Rowell, J., presiding. Verdict and judgment for the plaintiff-.

Bile in Chancery. Heard on tlie pleadings and the report of a special master, March Term, 1886, Washington County, Powers, Chancellor. Bill dismissed.

Bill to foreclose a mortgage. Heard on the report of a special master, March Term, 1886, Washington County, Powers, Chancellor.

<p>Selectmen, Powers of. Invalid Tax Bill. Voluntary Payment, R. L. ss. 450, 2692-3. Practice.</p> <p>1. The selectmen under the statute — E. L. s. 2092 — giving them “the general supervision of the concerns of the town,” have control of an invalid tax-bill; thus, the plaintiff receiving a tax-bill as collector advanced and paid into the treasury the amount of the same, and when its illegality was discovered by the selectmen they instructed him not to force collections, and promised to repay him what ho did not collect by voluntary payment; Held, that the promise was binding on the town; and that the payment by the collector was not under the ban of a voluntary payment. Taii'T, J., dissenting.</p> <p>2. A question will not be considered unless raised by the exceptions.</p>

IndiotmeNT for arson and burning — in three counts. Trial by jury, December Term, 1885, Orange County, Rowell, J., jiro,siding. Verdict, guilty. The first count alleged setting fire to a dwelling-house ; the second and third counts alleged the burning of a barn. It was averred that .said bam Avas the property of Sarah Emery, Avho Avas the Avife of Harry Emery, a half-brother of the respondent.

ActioN of debt on a judgment rendered by tlie Probate Court. Heard by the court March Term, 188,6, Washington County, Powers, J., presiding. Judgment for the plaintiff. The only question raised was whether the plaintiff was entitled to a certified execution, the court holding that he was. The case is stated in the opinion. This is debt on a judgment, and not a suit for 'the recovery of money held in a fiduciary capacity. Section 1503, R. L., does not apply.

Bill In Ciianckuy. Heard on the pleadings and a special master’s report, December Term, 1885, Orange County, Row.ell, Chancellor.

Trespass and trover for crops. Hoard on a referee’s report, September Term, 1885 j Washington County, Powers, J., presiding. Judgment pro form a for the plaintiff.

Biel in Chancery. Heard on pleadings and a special master’» report, September Term, 1885, Washington County, Powers, Chancellor.

INDICTMENT for perjury. Heard on demurrer, September Term, 1884, Essex County, Ross, J., presiding.

<p>ActioN of debt to recover the penalty given by the statute of New Hampshire for taking usury. Heard on general demurrer to the declaration, December Term, 1884, Orange County, Rowell, J., presiding. Judgment for the defendant. The case appears in the opinion.</p> <p>This is not a qui tarn action. The sum sought to be recovered can hardly be called a penalty. 5 Wait Act. & Def. 156 ; R. R. Oo. v. Meihven, 21 Ohio, 586. The statute against usury in Maine is remedial and not penal. Pierce v. Oonant, 25 Me. 33. Our own law is but the re-enactment of the common law. The excess above legal interest belongs to the plaintiff, and in New Hampshire can be recovered in.an action for money had and received. Palmer v. Lord, 6 Johns. Ch. 95 ; Gross v. Bell, 34 N. H. 82 ; Willie v. Green, 2 N. H. 333.</p> <p>This action is transitory. There seems to be nothing of a criminal character in an action under the statute. The state is in nowise a party. The excess of interest belongs to the plaintiff. Fife v. Bonsfield, 6 Q. B. 100; 2 Chit. PI. (16th ed.) 245; Ocdliford v. Bloioford, 1 Show. (K. B.) 354; 1 Chit. PI. 285. How does this case differ from actions for personal injuries that are provided for by statute ? See Needham v. Grand Trunk B. JR. Go. 38 Vt. 294, 308 ; Leonard v. Gal. /Steam Nav. Go. 84 N. Y. 48 ; Barney v. Barnstenbinder, 64 Barb. 212. The taking of usury is not even a misdemeanor. There is no penalty for it in the strict meaning of the word, as a penalty for a crime. It is like a forfeiture in contracts. Story Conf. Law, s. 620 ; Henry v. Sargent, 13 N. H. 322. The cases that seem to settle the doctrine of jurisdiction against us are all qui tarn actions, such as Slack v. Gibbs, 14 Vt. 357, and Morris v. Farrington, 133 Mass. 466. See JR. JR. Go. v. Foster, 10 Lea (Tenn.) 351.</p> <p>The statute, upon which is based the action, is penal. Ror. Int. St. L. 166; Barnet v. Nat. Bank, 98 U. S. 553. It is so regarded by the court of last resort in New Hampshire. Harper v. Bowman, 3 N. PI. 490; Kempton v. Savings Insti-■iution, 53 N. II. 581. An action will not lie in the courts of one state to recover a penalty given by the laws of another state upon an usurious contract made in such other state. Ror. Int. St. L. 165; Ogden v. Folliot, 3 Term,' 733. If the statute is remedial, the result is the same. Gale v. Eastman, 7 Met. 14; Ror. Int. St. L. 83, 168.</p>

<p> Injunction Bond. Damages. Mortgage. </p> <p>In an action oil ail injunction bond executed by a mortgagor on the granting ol ail injunction suspending' the operation oí a decreo of foreclosure, the plaintiff mortgagee cannot recover for timber sold from the premises, or for the rental value of the premises, during the pendency of the injunction and before the decree becomes absolute, when there is no redemption, and the value of the security is greater than the mortgage debt.</p>

<p> Voluntary 'Payment of Another's Tax. Panic Stoclc. Duress. </p> <p>The defendant, a tax collector, before bank stock was made distrainable for taxes by tlie Act of 1882, No. 11, distrained the plaintiff’s bank stock, and advertised it for sale to pay another’s taxes, and thereupon the plaintiff, with full knowledge of all flic facts, and in possession of his stock, paid the taxes under protest; Held, that it was a voluntary payment, and not recoverable.</p>

Assumpsit. Heard on a referee’s report, June Term, 1885, Caledonia County, Ross, J., presiding. Judgment for the plaintiffs.

<p>Assumpsit. Heard on a referee’s report, December Term, 1885, Orange County, Rowell, J., presiding. Judgment for the plaintiffs. The referee found, in addition to the facts stated in the opinion the following : “It was admitted that the plaintiffs bought the entire lot of cattle to slaughter, and use in their business as butchers, and that the cattle were to run in Mr. Downer’s pasture without charge, and be taken by the plaintiffs as they should, from time to time, need them in then-business ; and that when taken they be, so far as taken, paid for. It was claimed by the defendant that the plaintiffs named that they should require one or two a week; and that, as he understood the trade, within eight weeks all would be taken and paid for, viz., by October 15th at the latest.” The other facts arc sufficiently stated in the opinion.</p> <p>Courts may take judicial notice of whatever ought to be known within their jurisdiction, as of the course of nature, seasons, times, etc. Best Ev. s. 253; 1 Greenl. Ev. 10; Steph. Dig. Ev. 116. The finding of a referee is conclusive if there was any evidence tending to establish it. Harris v. Howard’s Estate, 56 Vt. 695 ; Martin v. Wells, 43 Yt. 428.</p> <p>The referee did not construe this contract. From evidence not objected to and proper he found what the contract was. Both parties admitted and claimed by evidence and argument that the cattle were not to be paid for until taken ; and the dispute was when they were to be taken, — the defendant claiming that they were to be taken by October 15th, and the plaintiff at the end of the pasturing season. Both parties relying on a contract different from the note, it is too late to have the case tried upon-some other issue. There is no time fixed by law or custom when the pasturing season closes. It is a question of fact depending on circumstances.</p>

<p>[In Chancery.]</p> <p> Grantor sometimes Competent and sometimes not. Burden of Proof. Mental Incapacity. Suit to set aside Deed. Mistalce. </p> <p>1. When a grantor’s mental incapacity is not permanent and continuous!, but only by “ spells,” and tlie deed is not lacking consideration, nor obtained by fraud or other unfairness, and the act was reasonable and natural, the burden of proving incapacity at the time of tlio conveyance is on the party claiming that the deed is invalid.</p> <p>2. And in sucli ease, wlierc the master found that the grantor, at the time of conveyance, was neither wholly incompetent nor, unaided, fully competent to understand the nature of the transaction, hut thought that, undtír proper advice, which it did not appear she had, she could have understood it, and have had papers drawn that would have effectuated her intention, the court refused to set aside tire deed, holding', from all the findings of the master, that it could not be said that she did not understand, in a reasonable manner, the nature and effect of what she was doing; and this, although the grantor intended to talce back an obligation for her support during life secured on the farm conveyed, but, by mistake, got only a life lease. Taft and Rowell, JJ.. dissent.</p>

Book Account. Heard on an auditor’s report, June Term, 1885, Orange County, Rowell, J., presiding. Judgment for the defendant. In April, 1883, the defendant and one Durant were and had been fora long time partners under the firm name of Durant & Adams. The firm was dissolved April 26th, said Durant receiving all the partnership property and agreeing to pay all the debts against the firm.

<p>Tax Sale of Land. Mot-ice. Estoppel. Adverse Possession. Rev. Stat. <j. 4, s. 2. Statute. Special Act. Signature by Marie.</p> <p>1. A sale of land to satisfy taxes assessed by the legislature is not invalidated by llie fact that the statute was not strictly complied with as to the publication of the notice of the proposed'application to the legislature for the assessment of the tax.</p> <p>2. A special act' of the legislature assessing a land tax is not limited by the general law providing that the committee appointed to superintend the expenditure of taxes, should not be allowed their account for labor, unless it had been completed, to the amount of the tax, within two years from the rising of the legislature.</p> <p>3. In a case involving the validity of a tax sale, it is immaterial whether the rate bill issued to the collector correctly contained the name of the original proprietor.</p> <p>I. Under the ltev. Stat. c. 4, s. 2, the majority of said committee could act in the premises.</p> <p>5. One of the committee signed by mark. The proof of the proceedings was made by copies from the public records; Held, that it was not necessary to verify the signature.</p> <p>6. The collector could lawfully adjourn the sale.</p> <p>7. Estoppel. A party to avail himself of an estoppel by conduct must show affirmatively that-he has acted in reliance upon the fact being otherwise than it is claimed to bo; thus, the plaintiff is not estopped, although, prior to his becoming the owner of the lot, he advised with and assisted the defendant in a law suit, in an attempt to establish his title to it, it not appearing that the defendant had done anything in reliance upon the plaintiff’s acts.</p> <p>S. Adverse Possession. A possession that will work an ouster of the owner, must be open, notorious, hostile and continuous; thus, where there is no color of title, the fragmentary possession of a wild lot, arising from the paying of taxes, and the cutting of a few trees here and there, and at different times, is not sufficient.</p> <p>9. Survey. A certain survey, q. v., held not sufficient to show color of title.</p>

<p>Railroad. Receiver, when liable to an Action at Law for Negligence of Servants. Pleading.</p> <p>1. Recmveb. When tlie same person is receiver oí one railroad and lessee oí another, and both are operated by him together, the leased road is not receivership property; and an employee can maintain an action at law against him, without leave of the Court oí Chancery, to recover for injuries resulting from the negligence oí his servants in operating the leased road.</p> <p>2. Such action is also maintainable although the defendant is receiver instead oí lessee of the railroad where the injury occurred.</p> <p>3. And in such eases it is not a question of jurisdiction in the courts of law, but only whether equip*, on application ol the receiver, will exercise its own jurisdiction of restraining suits. And if equity interposes, the injunction is in per-'sonam, directed to the party, but not to the court.</p> <p>4. Plea — Jurisdction. A plea to the jurisdiction is the first plea in the regular order oí pleading; and it is waived when filed with the general issue.</p> <p>5. A plea to the jurisdiction is defective that professes to answer the cause of action as a bar, and concludes with a prayer for judgment if the plaintiff ought to have or maintain his action.</p> <p>0. JuiusmcTiON — General Issue. A plea that amounts to the general issue acknowledges the jurisdiction of the court.</p> <p>7. ARGUMENTATIVE Denial. A mere argumentative denial of a material averment in the declaration amounts to an admission of its truth.</p> <p>8. U. S. Supreme Court, Decisions ok. The decisions of the U. S. Supreme Court, though entitled to the highest respect, are controlling upon state courts only in cases affecting rights under Federal cognizance.</p> <p>9. Barton v. Barbour, 104 U. S. 126, distinguished and criticised.</p>

<p>Exemption. Trustee. Practice. Dost. Commissioner. R. L. ss. 1158, 1556.</p> <p>1. Wlien one claims Unit property is exempt from attachment by trustee process, it is incumbent on him to show it; it is not enough to prove that it is of the kind exempted by statute — as a cow.</p> <p>2. The commissioner should have determined whether the cow and hog were exempt.</p> <p>3. It was discretionary with the court whether to allow counsel fees to the trustee or not.</p>

Bill in Chancery. Heard on the pleadings and a special master’s report, September Term, 1885, Windham County, Walkeii, Chancellor. Ordered proforma and without a hearing that the additional bill be dismissed. The 4th article of the agreement was : “4th. The stipulated value of the said Johnson and Babbitt’s four-sixteenths of the property of said firm, not including debts due said firm, is hereby understood and agreed to be four thousand five hundred dollars ($4,500). Said.

<p>Trespass and trover for the conversion of four shares of bank stock. Plea, general issue and notice. Trial by jury, June Term, 1885, Caledonia. County, Ross, J., presiding. Verdict and judgment for the defendant.</p> <p>If the listers,'the county, or state equalizing board failed in the performance of any essential requisite, or if proof failed to show it, the list was never a legal basis of taxation. Houghton v. Hall, 47 Vt. 333. The certificate of the president of the equalizing bard was not admissible. Best Ev. p. 456; -Moore v. Quint, 44 Vt. 97. The listers had no authority to alter the list after the 15th of May. Bellows v. Weelcs, 41 Vt. 590; Woodward v. Isham; 43 Vt. 123; Wheeler v. Wilson^ 55 Vt. 446; 34-Vt. 352. Section 352,' R. L., was aimed against reckless addition to the list. The grand list was void because there was no compliance with the law requiring an abstract of the list to be lodged in the town clerk’s office. Book “ E,” the list of • 1883, has no certificate of the lister, nor oath as to what it was.</p> <p>There was no legal check-list when the listers were elected. R. L, ss. 65, 69, 2056; Attorney-Qen. v. Simonds, 111 Mass. 256. School district No. 1 was not.a union district. Greenbanlcs v. Boutwell, 43 Yt. 207, 212 ; Barnes v. Ovitt, 47 Yt. 316; R. L. ss. 519, 573; 11 Yt. 385 ; 4 Zab. 653 ; 7 Conn. 214 ; 27 Me. 509 ; 48 Vt. 266. The law fixed the time for holding the meeting, and it cannot be held at another time. Warner v. Mower, 11 Yt. 385 ; Society v. Pilling, 4 Zab. 653 ; State v. Smith, 48 Yt. 266. The listers omitted large quantities of property from the lists without warrant of law. The academy, boarding house, club house, etc., were not exempt from taxation. The corporation is purely a private one; it is in no sense public. The public have no control over its management. It is run for profit; the scholars pay tuition. The statute, — R. L. s. 270, — does not exempt the property of a purely private nature. Banlc v. Memphis, 6 Bax. (Tenn.) 615; s.c. 32 Am. Rep. 530; Qhurch v. Assessors , 12 R. I. 19 ; s. c. 34 Am. Rep. 597 ; Phillips Exeter Academy v. Exeter, 58 N. H. 306 ; s. c. 42 Am. Rep. 589 ; People v. Oemetery Go. 86 Ill. 336; s. c. 29 Am. Rep. 32 ; 80 Ill. 333 ; 22 Am. Rep. 187 ; Pierce v. Cambridge, 2 Cush. 711; State v. Boss, 4 Zab. 497 ; State v. Leester, 28 N. J. L. 103; State v. Axtell, 41 N. J. L. 117 ; Qooley Tax. 540, 547. The other property, — tire Henry Fairbanks purchase, — was not exempt. There had been no deed to any pious or charitable uses. First Church y. New Orleans, 34 La. Ann. 259 ; s. c. 31 Am. Rep. 224; 36 La. Ann. 804; 51 Am. Rep. 14; 85 Penn. St. 288; 27 Am. Rep. 650; Lowell Fleeting House v. Lowell, 1. Met. 538.</p> <p>The court ruled correctly as to the admission of the certificate of the president of the county equalizing board. State v. Potter, 52 Vt. 33 ; McComber v. Center, 44 Vt. 235 ; Wells-ton v. Seavey, 38 Yt. 221; Bill v. Low, 56 Yt. 562 ; Briqc/s v. Whipple, V Vt. 15. ■</p> <p>The directions of the statute in regard to the details of the making, posting, and manner of using the check-list are directory, not mandatory, and an irregularity in those respects which has worked no harm and impaired no right, would not impair an election. Barnes v. Board of Supervisors, 51 Miss. 305; Wheelock’s Case, 82 Penn. St. 297 ; Dale v. Erwin, 78 Ill. 170 ; State y. Ferguson, 2 Yroom, 107 ; McKinney y. O’Connor, 26 Tex. 5; Sprague y. Norway, 31 Cal. 173; Hulseman v. Bens, 41 Penn. St. 396 ; Pratt y. People, 29 Ill. 54; Cleland v. Porter, 74 Ill. 76 ; People v. Police Commissioners, 57 How. Pr. 445 ; Bounds v. Smart, 71 Me. 380 ; Collins y. Huff, 63 Gra. 207 ; People v. McManus, 34 Barb. 620.; Day v. Kent, 1 Oregon, 123 ; State v. Stump/, 21 Wis. 579 ; Be Census Superintendent, 1 New Eng. Rep. 156. The regularity of the election of the listers cannot be assailed in this collateral manner. Sudbury y. Heard, 103 Mass. 543.</p> <p>The court properly refused to rule as requested, that Book “ H” was not the grand list which the law required, and properly ruled upon the subject matter of that request. The jury, under the instructions, have found that that book was made up and completed as the grand list of the town, and filed in the town clerk’s office in a completed condition as such list on the 15th day of May, 1884. Canal Co. v. BocMngham, 37 Vt. 622 ; Torrey v. Milbury, 21 Pick. 64 ; Blackburn v. Walpole, 9 Pick. 97 ; Westhampton v. Searle, 127 Mass. 502; Sprague v. Bailey, 19 Pick. 436 ; Wilson v. Wheeler, 55 Vt. 446. The aqueduct is subject to taxation as real estate. Canal Co. v. Boclcingham, supra; Boston Man’fg Co. v. Newton, 22 Pick. 22; Pingree v. County Corn’s, 102 Mass. 76. The ruling as to taxing the stock of the corporations was correct. Cooley Tax. 165 ; Bank v. Portsmouth, 52 N. H. 389. The academy and club house, etc., were exempt from taxation. State v. Gaffney, 34 N. J. 133.</p> <p>The alterations made by the listers did not invalidate the list. BelloiosY. Weeks, 41 Vt. 590.</p>

Bill IN ChaNCery. Heard on the pleadings and a speoial master’s report, Septembér' Term, 1885, Eranklin County, Royce, Chancellor. It was decreed pro forma that the defendants pay to the orator the sum of $431.20, and interest thereon from the 18th day of June, 1883, on or before June 1, 1886, or be enjoined from running and operating their railroad over, upon and across the premises described in the orator’s bill.

<p>RbpleviN for a horse taken by defendant, as sheriff, on a writ against the plaintiff. Heard on a referee’s report, March Term, 1886, Washington County, Powers, J., presiding. Judgment pro forma on the report for the defendant. The case is stated in the opinion.</p>

<p>[In Chancery.]</p> <p>Jurisdiction. Pleading. Practice. Trespass. Ghwoing Trees. Receipt, Construction of.</p> <p>1. A jurisdictional question should he raised by plea or motion fllecl in tlie Court oí Chancery, and it cannot he raised before the master.</p> <p>2. Answbb, Amendment oe. Master. Nor is an application to amend an answer available when made to a master.</p> <p>3. Jurisdiction. ’Waiver. When the question of jurisdiction is not properly liresented, the court might treat it as waived.</p> <p>4. A hill in equity will lie to restrain a trespasser from cutting growing trees on the only wood lot owned by the orator, when it works a permanent injury to the land; and especially when there is no denial of the allegation of irreparable injury.</p> <p>fi. Receipt, Construction oe. Parol Evidence. The oratrix claimed that she had sold the timber on one acre of land to one of the defendants, and after-wards gave him the following- writing: “I have sold to David Roc, and received payment in full for the hemlock bark, timber and wood on one acre, more or less (within the bounds of the hemlock timber).” The master found in favor of the oratrix; Held, that the meaning of the receipt was that the sale included the timber of only one acre; that the words “ more or less ” did not enlarge the quantity before described.</p>

<p>Bill IN ChaNOBuy. Heard on the pleadings and a special master's report and the exceptions thereto, December Term, 1885, Orange County, Rowell, Chancellor. It was decreed that the moneys advanced to the defendant and paid out at the request of the defendant by the orator from the funds of the estate of which orator is administrator, as specified in the report of the master, to the amount of $9,585.79, with the interest included therein to January 1, 1886, as is computed by the master, be allowed to the orator as against the defendant.</p> <p>And that there be allowed to the defendant against the orator as administrator the following claims as allowed by commissioners January 2d, 1867, viz. : The Andross and Holton notes, the Arnold, Cilley, Frye and Hunkins notes, all amounting to $3,712.16, and also the claims against the, said estate bought by defendant, amounting to $1,109.61, one-half of the claims of J. & R. C. Johnson against the estate, being $298.50, the Johnson Chamberlain claim of $450, making in all the sum of $5,570.27, and interest from the date of commissioners’ report, January 2d, 1867, to January .1, 1886, as appears in the report of the master, to the extent of the percentage upon said claims allowed by the Probate Court of the District of Bradford, whenever a dividend is declared upon the claims against said estate.</p> <p>And it is ordered and decreed that said dividend upon said sum allowed to the defendant, when ascertained, shall be offset against the .sum above named as allowed to the orator to the extent of said dividend. And should there be a balance due the orator, after allowing said offset, then the defendant shall pay said balance to the orator.</p> <p>The orator’s exhibits, 2, 3 and 9, were.:</p> <p>Exhibit 2.</p> <p>Bradford, April 13, 1869. Received of Alexander McLane, administrator of the estate of Jesse Johnson, late of Fairlee, deceased, the sum of $1,200, to be-accounted for in the payment of certaint claims against said estate allowed by commissioners, and particularly the claims of Buckley, Holton and Johnson Chamberlin, said claims being founded upon notes which the said Jesse Johnson gave the said Holton and said Chamberlin, and which I also signed as surety.</p> <p> </p> <p>Exhibit 3.</p> <p>• Bradford, April 17, 1869. Received of Alexander McLane, administrator on the estate of Jesse Johnson, late of Fairlee, deceased, the sum of $1,700, to be accounted for in the payment .of certain claims against said estate allowed by the commissioners, and particularly the claim of J. W. Andross, said claim being upon a certain note which the said Jesse Johnson gave the said Andross, and which we, each of us, signed as surety $1,700. '</p> <p> </p> <p>Exhibit 9.</p> <p>$500. Bradeokl, April 9, 1875.</p> <p>For value received of Alexander McLane, administrator of Jesse Johnson’s estate, I promise to pay him or order $500 on demand with interest. JoNATI-ian Joi-insoN.</p> <p>The master found, in part:</p> <p>‘ ‘ Among the claims allowed by the commissioners against said estate there was a number on which the defendant appeared as surety for the said Jesse Johnson, deceased, and the defendant’s name and that of M. R. Chamberlin were on two notes as surety for the deceased, on which was allowed by the commissioners, $1,421.11 to John W. Andross, and one to Buckley Holton for the sum of $1,076.78.</p> <p>“About April, 1869, suit was brought upon' one or both of these notes against M. R. Chamberlin and the defendant Johnson to enforoe the collection of these notes against them.</p> <p>“The defendant and said Chamberlin conferred together to see what could be done to pay these notes. It was arranged between them to apply to the orator as administrator, to see if he could not let them have the money to pay these notes. The defendant Johnson met the orator, and it was agreed between them that the orator should then advance to them $1,200 to pay the Buckley Holton note, and that he would in a few days let them have a further sum sufficient to pay the Andross note.</p> <p>‘ ‘ The orator then had the money in his hands belonging to said estate to pay said notes without any immediate occasion for its use. In getting this money of the orator, Moses R. Chamberlin was equally interested with defendant Johnson.</p> <p>“ And it was agreed between the orator and the defendant that the orator would let the defendant have the money required to pay the Holton note and the Andross note, and the defendant was to hold said notes against the orator administrator the same as the original party would have done, and on the settlement of said estate the dividend on these notes was to offset against the money thus advanced by the orator as administrator as aforesaid.</p> <p>“ And at this time or within a few days of this time, it was further agreed that the orator should from time to time let the defendant have money in like manner, and to purchase in claims against said estate, and on settlement of said estate the dividend on said claims so ¡purchased in by the defendant were to be offset against the money so advanced to the defendant by the orator.</p> <p>‘ ‘ The money advanced by the orator to the defendant under agreement, the aforesaid is represented in the orator’s exhibits 2 to 9 inclusive, and it was further stipulated by the orator and the defendant that said sums so advanced by the orator to the defendant should draw interest from the date to the time of the settlement of said estate, when it was understood by the parties that an offset should be made, and the party being-found in arrear should pay to the other the amount so in arrear.</p> <p>“ Item No. 4 is called the Rice note, dated May 4, 1864, for $200. This note was signed by Jesse Johnson, the deceased, Jonathan Johnson and M. E. Chamberlin, and payable to Abel M. Eioe.</p> <p>“ One Wm. C. Arnold became the owner of this note before the decease of Jesse Johnson, and it ivas allowed in favor of said Arnold by the commissioners.</p> <p>“¡The defendant and M. E. Chamberlin requested the orator to pay said note, and'the orator did so; and they were'to account to the orator as though they held the note to account to the orator for any deficiency that might arise by reason of the estate being short of paying in fall.</p> <p>“ In relation to orator’s exhibit No. 9 : At the date of this note the defendant met the orator and wanted to get five hundred dollars upon the same terms and agreement he liad had the money represented by orator’s exhibits above named. And the orator let him have it on the same terms the rest of the money named in orator’s exhibits was furnished, and being-in a hurry the orator put the amount into a note.”</p> <p>The other facts are sufficiently stated in the opinion.</p> <p>The orator’s exhibits, 2 arid 8, are contracts, not mere receipts ; hence, parol evidence was not admissible. Story Bailm. ss. 137, 159, 171 ; Winn v. 'Ghamberlin, 32 Yt. 318; Randall v. Kelsey, 46 Yt. 158 ; Brown v. 'Hitchcock, 28 Yt. 452; McGregor v. Bugbee, 15 Yt. 734; 1 Greenl. Ev. s. 305 ; 8 Wall. 325 ; Aldrich’s Adm’r v. Hapgood, 39 Yt. 621. Parol evidence was not admissible to vary the terms of exhibit 9. Brown v. Spofford, 95 IT. S. 482 ; Morse v. Low, 44 Yt. 565 ; Bradley v. Bentley, 8 Yt. 243 ; Gillett v. Ballou, 29 Vt. 296 ; Brown v. Willey, 20 How. (IT. S.) 442.</p> <p>The rule is the same in equity as at law. 14 Pet. 206; 8 Wall. 573. It should have been alleged that the estate was settled. Story Eq. PI. s. 257 ; Brown v. Bank, 31 Miss. 459 ; 1 Han. Gh. 369. The bill is demurrable. Downer v. Dana, 17 Vt. 518. Such facts must be alleged as show a present right in the orator. ■</p> <p>When a party seeks specific performance he must show as a condition precedent to his obtaining the remedy that he has clone or offered to do, or is then ready and willing to do, all that the essential and material acts required- of him by the agreement at the time of commencing the suit, and also that he is ready and willing to do all such acts as shall be required of him in the specific execution of the contract according to its terms. 3 Pom. Eq. Jur. s. 1407.</p> <p>Parol evidence was admissible. 26 Yt. 123 ; 1 Greenl. Ev. s. 305 ; 3 Stark. Ev. p. 1272 ; Winn v. Ghamberlin, 32 Vt. 31(3 ; Reynolds v. Ilassam, 56 Vt. 449 ; Proctor v. Wiley, 55 Vt. 344; 50 Vt. -1; 22 Vt. 507 ; Sowles v. Soules, 11 Vt. 146; Stackpole v. Arnold, 11 Mass. 31.</p> <p>The bill alleges the insolvency of the defendant, and the master has found the fact that he is insolvent. Courts of equity will always in such case compel offset regardless of the statute of set-off. Blalce v. Lang don, 19 Vt. 485. Downer, v. Dana, 17 Vt. 518. Chamberlin was not a necessary party. Story Eq. PI. ss. 103, 113; Van Gleefv. Sickles, 5 Paige, 505.</p>

<p> Replevin. Demand. Insolvent. Fraud. Evidence. Bankruptcy. </p> <p>1. Demand. Messenger. In an action of replevin against the assignee of an insolvent debtor to recover goods claimed to have been obtained by the debtor through fraud, a demand made upon the messenger or Peeper under him, who had possession of the goods awaiting the appointment of an assignee, as bearing on the question of rescission of the contract, is sufficient.</p> <p>2. Rescission. Law and Fact. Jury. Practice. Whether one acts with reasonable promptitude in rescinding a contract induced by fraud, is a mixed question of law and fact, proper for the jury.</p> <p>3. Agent, Declarations oil Trial, Conduct oe. The court in its discretion can admit the declarations of an agent before tile agency is shown; and the question of agency does not arise, when the evidence tended to prove it, and there was no request, and no exception to the neglect of the court, to submit it to the jury.</p> <p>4. Fraudulent Conspiracy. Evidence. The question was whether the debtor entered into a conspiracy with his sureties to get possession of the goods without paying for them. The evidence tended to show the conspiracy. He had money but bought on credit; Held, that evidence was admissible to prove (a) liow he could have purchased for cash; (b) 'that the plaintiffs told their .salesman, in the absence of the debtor, to sell him goods not exceeding $500 in value; (c) the acts and declarations of the other conspirators while the common design was being carried out, and in furtherance of it; (d) that the conspiracy extended to the fraudulent purchase of goods of other parties; and (e) that the debtor’s brother, five or six years before the failure, consulted an attorney as to his financial condition.</p> <p>5. Order oe Evidence. Discretion. It is in the discretion of the trial court to admit evidence in rebuttal that should have been introduced in the opening, if the opposing party is not thereby injured.</p> <p>G. The defendant made the plaintiffs’ witness his own by asking him on cross-examination if his attention had been called by any one to the debtor’s condition, — a matter he had not testified to. It was not error to allow the plaintiffs on re-examination to inquire the name of the person.</p> <p>7. For the purpose of showing that the debtor’s stock of goods was not unreasonably large, evidence was not admissible to prove the stocks of other merchants in the same village.</p> <p>S. Agent. Ratification. It is immaterial whether the debtor’s son was his . agent in giving instructions to the scrivener as to what property should be put into the mortgage deed, as ho ratified his acts by signing it, knowing its contents.</p> <p>9. Rescission. Parties placed In Statu Quo. The plaintiffs, upon the rescission, were under no obligation to reimburse the insolvent for money paid for freight of the goods.</p> <p>10. Fraudulent Representations. Charge. There was no error in the charge by which the jury were instructed, that if the insolvent represented that the mortgage on liis property was all “ fixed up,” which was confessedly false, and the plaintiffs, in reliance upon the truth of the statement, would not have made the sale without it, then they had the right to rescind. Nor was there error in charging the jury that the insolvent could have remained silent; but when he undertook to tell, he should tell them fairly and fully.</p> <p>11. Request. Practice. Exception. Where no exception is allowed, the question will not be considered, whether there was error or not in refusing a request to charge made out of time.</p>

<p>Appeal from the Probate Court admitting to probate the will of David Gushá. Pleas, want of testamentary capacity because of insanity, and fraud and undue influence. Trial by jury, December Term, 1885, Orange County, Rowell, J., presiding. Verdict, that the paper propounded as the will of said Gusha ought not to stand and be established because of his incapacity.</p> <p>Dr. Fred Fletcher was improved as a common witness, and not as an expert, by the proponent. It had already appeared in the case that the testator committed suicide on the 24th day of August, 1880. The witness testified in chief that he knew the testator from 1871 to the time of his death, and was his family physician most of that time and saw him often; that he attended him a few weeks one winter after his wife died, when ho was sick with a bilious trouble and deranged from the disease a considerable portion of the time ; that he recovered from that and was apparently as well as before, and not deranged until he hurt his thumb the summer he died; that by reason of this injury he was broken of his rest, grew weak and was much depressed in mind, but seemed better after his thumb healed, but did not get back to so good health as he had before ; but that he never saw any failure of his memory'or understanding, but only that he was more melancholy than before.</p> <p>In cross-examination the witness testified after the testator’s wife died, and before he hurt his thumb, he saw him frequently, but did not notice that his melancholy increased, nor that his actions were strange at times, but could not say that such symptoms were not present at times. Then the contestant asked the following questions as an expert:</p> <p>Q. Mr. Gusha died by his own hand ? A. Yes. Q. Now, from your professional knowledge, I will inquire of you whether or not that is not indication of insanity?</p> <p>This wras objected to by proponent for the reason that the witness cannot be heard to say as a professional man what the fact of suicide indicates as to the condition of mind of the person committing the act; that when the fact that the testator did then commit suicide is before the jury, it is for the jury to say what it indicated, and that it is not a proper matter for expert evidence.</p> <p>The objection was overruled ; to which proponent excepted.</p> <p>Before the witness answered the question, counsel for contestant said to the witness : We are speaking about the mental condition of David Gusha, and as to what the effect of his suicide — what the act of his suicide would indicate as to the soundness or unsoundness of this man’s mind ?</p> <p>The witness then answered as follows :</p> <p>A. I believe, ás I testified before, that it was an insane act.</p> <p>The witness referred to his testimony in a former trial of this cause when he spoke of what he testified before. The witness was then asked as follows :</p> <p>Q. To what cause did you attribute the melancholy you have spoken of? A. To the way he was made. Q. Is that condition of melancholy very frequently followed by suicide ?</p> <p>This question was objected to by proponent, on the ground that it is not the kind of question proper to put to an expert; and if not put to an expert, the jury know just as much about it as the witness does, and as leading.</p> <p>The objection was overruled; to which the proponent excepted ; and the witness answered as folloAVS :</p> <p>A. I think the majority of those who commit suicide belong to. those who are melancholy.</p> <p>The witness was further asked : '</p> <p>Q. Will you tell me whether the condition of melancholy points towards suicide ? That condition of melancholy being what you have testified in this cause, and becoming a fixed habit in a person ?</p> <p>To this question proponent objected. The objection was overruled; to which proponent excepted; and the witness answered as follows:</p> <p>A. I should quicker expect a man who was subject to melancholy to commit suicide, rather than a man of a happy disposition.</p> <p>It was not shown that Dr. Fletcher was an expert on the question of insanity, unless the fact of his being a practicing physician was a sufficient showing that ho was such an expert. No objection was made on that ground, nor was the question raised.</p> <p>The court charged as to the suicide of the testator :</p> <p>“ The act of suicide is not regarded by the law as necessarily proof of insanity ; but when suicide occurs soon after the making of a will it is a fact sufficiently tending to show an unsettled state of mind, and to induce so much apprehension of the existence of some morbid affection tending to the derangement of reason as to be competent to be submitted to the consideration- of a jury upon an inquiry into testamentary capacity, and it should beget watchfulness in the minds of the jury in regard to the true state of the testator’s mind at the time of the making of the will, when suicide occurs soon after the will is made. But there are so many cases where suicide is committed in a sane state of mind that it cannot be, in its self alone, regarded as establishing unsoundness of mind, though it may tend to show it in the circumstances of the particular case. It is obvious that the longer the time of suicide is after the execution of the will the less force it will have as evidence of unsoundness of mind at the time of the making of the will, and the slighter the inference that can be drawn from it as to the existence of unsoundness of mind at the time the will was made.”</p> <p>The fact of contestant’s silence at the hearing for appointment of guardian was admissible. Iiersey v. Barton, 23 Vt. 685. Dr. Fletcher’s testimony was not admissible. Whar. & St. Med. Jur. s. 636.</p> <p>“In fact, whatever certain scientific authorities may assert, we are not warranted in coming to the conclusion that suicide is always a symptom or a result of insanity.” Whar. & St. Med. Jur. 637 ; Oram v. Thomley, 47 Ill. 474; Bxirroughs v. Burroughs, 1 Hag. Ecc. 109.</p> <p>In Terry v. Ins. Go. 1 Dillon C. C. 403, the court, Mjxlee, J., say: “There is no presumption of law, prima facie or otherwise, that self-destruction arises from insanity.”</p> <p>In Merritt v. Life Tns. Qo. 55 Ga. 103, the court say: ‘ ‘ The fact that the insured committed suicide is not of itself evidence of insanity.”</p> <p>In Go fee v. Life Ins. Go. 35 J. & S. 314, the court say r “No presumption that insanity exists in the case supposed can be deduced from the mere fact that the death of the person was caused by his own physical act.”</p> <p>In Beg. v. Barton, 3 Cox C. C. 275, the court say: “ Reliance was placed on the desire to commit suicide, but that did not always evidence insanity.”</p> <p>In Weed v. Mutual Benefit Life Ins. Go. 70 N. Y. 564, the court say : ‘ ‘ Insanity cannot be presumed from the mere fact of suicide, as was said by Judge GeoveR in the case cited, for the reason that experience has shown that self-destruction is often perpetrated by the sane.”</p> <p>The fact of suicide was proper to be considered with all the proper evidence in the case by the jury, and it was for the jury to say what it indicated. Bushnell Insanity, s. 226 ; Duffield v. Morris, Ex’r, 2 Harr. (Del.) 375 ; McElioee v. Ferguson, Ex’r, 43 Md. 479.</p> <p>The fact that a witness may know more of the subject of inquiry, and better comprehend and appreciate it than a jury, does not warrant his being improved as an expert; the subject of inquiry must be one relating to trade, profession, science or art, and the witness by study and experience be supposed to have more skill and knowledge relative thereto than jurors of average intelligence may be presumed to have. Ferguson v. Hubbell, 97 N. Y. 507. '</p> <p>The question asked' of Dr. Fletcher does not come within the scope of this rule, but in effect, calls for his opinion founded upon a theory of morals or ethics, and is given based upon speculative data. Rogers on Expert- Tes. ss. 11-13; Van Zandt v. Mu. Life Ins. Oo. 55 N. Y. 1699.</p> <p>The silence of the contestant is not a ground of inference against him. 1 Greenl. Ev. s. 197; Brainard v. Bucle, 25 Yt. 573. Dr. Fletcher’s testimony was admissible.</p> <p>It had already appeared in the case that the testator committed suicide. This was a proper subject-matter for expert testimony. Insanity is a disease. It is one of the recognized functions of experts to say what are and what are not symptoms or indications of disease. Fairchild v. Bascom, 35 Yt. 398, 406 ; Lake v. The People, 1 Parker's Cv. Gas. 495, 559 ; 1 Greenl. Ev. s. 440. The propriety of asking this question, viz., as to whether suicide is an indication or proof of insanity has been already decided in this state. In Hathaway v. Ins. Oo. 48 Yt. 335, the following question was asked of a witness (p. 340) : “Is suicide more often than otherwise a proof of insanity?” The defendant excepted to the interrogatory, and argued (p. 348) that it did “not call for any facts peculiarly within the knowledge of experts, but conclusions for the jury to draw.” The court overruled the exception.</p> <p>The charge was correct. Tayl. Med. Jur. p. 116; Redf. Wills, c. 3, s. 12.</p>

<p> Criminal Laxo. Intoxicating Liquors. Express Agent. Station Agent. </p> <p>1. when an express agent receives by express a package marked C. 0.1)., containing intoxicating liquor, and, knowing its contents, delivers it to tlie consignee, . collects the pay thereior and transmits it to the consignor, he is liable to conviction under an indictment charging him with the illegal sale of such liquor; blit when in such case lie does not know the contents of the package, he is not liable, unless he had reason to believe or suspect what it contained.</p> <p>2. And the rule is the same where the agent delivered the liquor to a stage driver, who paid for it with money furnished by the consignee, where it did not appear that the express company had undertaken to deliver it beyond the terminus of its own transit; or that the stage driver was an express carrier; for a delivery to the stage driver was a delivery to the consignee.</p> <p>3. EXPRESS Company. An express company is not bound to transport and deliver intoxicating liquor, if thereby it would incur a penalty.</p> <p>4. Nor is such company, as a general thing, bound to know the contents of packages offered for carriage; nor are its agents presumed to know.</p>

<p>INDICTMENT for a conspiracy to binder and prevent the Eyegate Granite Works, a corporation doing business at Eye-gate, from employing certain granite cutters, and for hindering and deterring certain laborers from working for the said corporation. Heard, June Term, 1885, Eoss, J., presiding, upon the respondents’ demurrer and motion to quash the indictment.</p> <p>Indictment: “Be.it remembered, that at the County Court begun and holden at St. Johnsbury, the grand jurors, etc., present that James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill, all of Eye-gate, in the county of Caledonia, with divers evil disposed persons, to the said grand jurors unknown, on the 13th day of April, A. D. 1885, at Eyegate, in the county of Caledonia, did unlawfully combine, conspire, confederate and agree together to prevent, hinder and deter by violence, threats and intimidation, the Eyegate Granite Works, a corporation then and there being and existing by law, from retaining and taking into its employment James, O’Eourke, William Goodfelloiv and other persons, to the said grand jurors unknown, then and there being as laborers in the labor and occupation of granite cutting to the great damage of the said Eyegate Granite Works, and the said James O’Eourke and William Goodfellow and other persons, to the said grand jurors unknown, then and there being as laborers in the labor and occupation of granite cutting to the great damage of the said Eyegate Granite Works, and the said James O’Eourke and William Goodfellow and others and to the evil example of all men and against the peace and dignity of the State.</p> <p>And the grand jurors aforesaid upon their oath aforesaid further present that the said James D. Grant, Charles C, Stewart, Orrin E. Clay, JoJhn McGeough, Edward O’Toole and Lewis Hill, all of Kyegate, in the county of Caledonia, with other evil disposed persons, to the said grand jurors unknown, at Kyega-te aforesaid, on the 13th'day of April, A. D. 1885, maliciously intending to control, injure, terrify and him poverish the Kyegate Granite Works, a corporation then and there being and existing by law, and by violence, threats and intimidation, to force and compel said corporation to conform to the rules, regulations, by-laws and decrees of a branch of the National Stone Cutter’s Union, an organization then and there existing, and to deprive said corporation of all the workmen and laborers then and there by it employed in its works and shops there situate, unlawfully did conspire, combine, confederate and agree to terrify, frighten, alarm, intimidate and drive away by threats and intimidation, James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others,- to the said grand jurors'unknown, who were then and there workmen and laborers of the said Kyegate Granite Works, to the evil example of all men and against the peace and dignity of the State.</p> <p>And the grand jurors aforesaid upon their oath aforesaid further present that the said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill, being granite cutters by occupation and not being content to allow other granite cutters to pursue their avocation and employment wherever they wished and upon whatever terms might be agreed upon between said other granite cutters and their employers, but contriving and unjustly intending to destroy the effect of free competition in the price and value of labor, to coerce and constrain said other granite cutters and their employers and to compel said other granite cutters to desist from labor and to deprive the employers thereof of all their-laborers and apprentices and thereby to ruin and destroy their business, did, on the 13th day of April, A. D. 1885, at Kyegate aforesaid, with force and arms combine, conspire, confederate and unlawfully agree together and did enter into an organization and compact whereby it was, among other things, provided that none of the parties to said compact and organization should labor or cut granite for any person or persons or corporation whose shop or works had -been by the parties to said compact and organization disapproved of and adjudged to be “ scab shops” or works, and that no other granite critters should be allowed to work or cut granite for or in such “scab shops” or works, and that all other granite cutters in this country should be notified that the shops or works so adjudged to be “ seal)” were “ scab” and that work therein by granite cutters was forbidden by said organization and that all granite cutters who disregarded said prohibition and worked or cut granite in such £ ‘ scab ” shop or works should be called ‘ ‘ scabs ” and their names should be published as “ scabs ” in a certain newspaper called the Granite Cutters’ Journal, a newspaper of wide circulation among granite cutters in this country, and that all granite cutters in this country should thereby be notified not to associate or work in the same shop with any of the parties so published as “ scabs.” And the said Janies D. Grant, Charles C. Steivart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill, in'pursuauce of the said unlawful conspiracy, combination and compact with the intent to prevent the prosecution of work in the shops and works of said Eyegate Granite Works next hereinafter mentioned, did then and there threaten and say to James O’Eourke, Hugh J. O’Eourke, William Good-fellow and others who were then and there laborers, workmen and apprentices as granite cutters in the shops and works there situate of the Eyegate Granite Works, a corporation tlien and there being and existing by law and there carrying on the business of cutting granite and manufacturing granite work, that said shops and works of the said Eyegate Granite Works were “scab” shops and “scab” works and that no granite cutters were allowed to work therein and that the said Janies O’Eourke, Hugh J. O’Eourke, William Goodfellow and others would be “scabs” if they worked in said last named shops or works and that their names would be published as ‘ ‘ scabs ” in said Granite Cutters’ Journal if they worked in said last named shops or works and that they would be disgraced in the eyes of all granite cutters and would be avoided and shunned by all granite cutters, and that all other granite cutters would refuse to ívork or associate with them, if they worked in said last named shops or works, and were published as “ scabs ” as aforesaid ; and by means of the said sayings and threats, the said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill did then and there affright, drive away and prevent the said' Janies O’Eourke, Hugh J. O’Eourke, William Goodfellow and others from accepting, undertaking and prosecuting their said employment in said shops and works of the said Ryegate Granite Works, with the intent of them, the said James L. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill last aforesaid.</p> <p>And so the said grand jurors say on their oath aforesaid that the said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill did then and there in manner aforesaid, by threats, intimidation and the unlawful and grivous conspiracy aforesaid, carried into execution as aforesaid, affright, drive away and prevent the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others from accepting, undertaking and prosecuting the employment and work of stone cutting in said shops'and works of said Ryegate Granite Works, with the lawful intent of them, the said James I). Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill, thereby to prevent the prosecution of work in said Ryegate Granite Works, said shops and works, contrary to the form and effect of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>And the said grand jurors, upon their oath aforesaid, further present that said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill, all of Ryegate aforesaid, with the unlawful intent and purpose to prevent the prosecution oí work which was then and there carried on by the Ryegate Granite Works, a corporation then and there existing under the laws of the State of Vermont, in the manufactory of the Ryegate Granite Works aforesaid, then and there situate, did then and there threaten the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others, to the said grand jurors unknown, who were then and there at work in said manufactory, that they, the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others, would be ‘ ‘ scabs ” and be called and advertised' as ‘ ‘ scabs ” and that they, the said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill, would cause the names of the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others to be published in the “scab” list in the Granite Cutters’ Journal, a paper of wide and extended circulation among granite cutters in the United States, if they, the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others, continued work in the said manufactory, and the said'term “ scab” as so threatened to be used by said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill, is an opprobrious and disgraceful epithet, the use of which, in the manner threatened by the said James D. Grant, Charles -C. Stewart, Orrin E, Clay, John McGeough, Edward O’Toole and Lewis Hill, would have the effect to disgrace the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others, and make it difficult and impossible for them to get employment in their said employment of cutting stone in places where work of that character was wanted ; and the effect of using the said term- “ scab ” in the manner threatened, was well known both,to the said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole- and LeAvis Hill, and also to the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others, if they, the said'James O’Rourke, Hugh J. O’Rourke, William GoodfelloAv and others continued work in said manufactory; and by said threats then and there made, they, the said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward O’Toole and Lewis Hill did then and there, at Ryegate, aforesaid, unlawfully affright, drive arvay and prevent the said James O’Rourke, Hugh J. O’Rourke, William Goodfellow and others from prosecuting said employment in said manu-factory.</p> <p>Contrary to the form and effect,” etc.</p> <p>In case the conspiracy is to do a lawful act by unlaAvful means, the means must be fully set out in the several counts. State v. Reach, 40 Yt. 113 ; 31 Me. 396 ; 43 N. H. 83.</p> <p>In the third and fourth counts the preamble, the introductory and concluding matter, are mere.recitals and cannot aid imperfect averments in the body of the complaint. Commonwealth v. Hunt, 4 Met. Ill, 128; Commonwealth v. Dean, 110 Mass. 64.</p> <p>The indictment is defective in not averring that the respondents, at time of alleged conspiracy knew that the workmen named, or some of them, were in the prosecution of work of the granite company, or tbat they were about accepting, etc., work. State v. Carpenter, 54 Yt. 551.</p> <p>A person is not liable for enticing and harboring the servant of another unless it is alleged and shown he knew of such relationship. 1 131. Com. 429; Wood Mast. & Serv. 256 ; Bailey’s Onus JProbandi, 207.</p> <p>The English indictments under the modern statutes make knowledge a material allegation. Iieg. v. Bunn, 12 Cox, C-. C.; s. c. 4 Moak’s Eng. Eep. 564 ;■ Bishop Forms, s. 303; Reg. v. Shepherd, 11 Cox, C. C. 325.</p> <p>The counts do not state that the workmen driven away by defendants ioere under any contract to perform labor for granite company, nor that defendants know of said contracts. Walker v. Cronin, 107 Mass. 555, fully illustrates our claim. See Wood Mast. & Serv. s. 238 ; Butterfield y. Asldey, 2 Gray, 254; Butterfield v. Ashley, -6 Cush. 249; Commonwealth v. Hunt, supra. There is no allegation that the acts were wilfully and maliciously done by prisoners. Walker v. Cronin, 107 Mass. 555.</p> <p>The statute has no application to acts like those set up in third and fourth counts. It had its origin in the violent and unlawful acts of the Troy & Boston E. E. Co. in reference to the branch-running to Bennington village.</p> <p>We assert that the whole act indicates that the legislatui’e-had in blind actual violence, or fear of bodily harm, whereby persons then employed in prosecution of labor, etc., might be affrighted or driven away from same. Two persons need not join in the act or purpose. It reads : “ Alone, or in combination with other.” A conspiracy required-two or more to join, etc.</p> <p>If any offense existed at the common law, the statute is now exclusive, The Act of 1867 enlarged the penalty for this sort of conspiracy and covers the ground. State v. Stokes, 54 Yt. 179.</p> <p>If wo are correct in this position, then the first and second counts cannot stand. Bish. Stat. Gr. s. 174.</p> <p>Did. any such offense exist at the common law as adopted in this State ? Certain English statutes were passed between the 13th and 19th centuries by Parliament in reference to “ Combination of Workmen.” These covered all combinations for purposes named at close of our first point.</p> <p>We can hardly understand how such laws could ever have found their way into the books ; they never could in a nation of free-born men and women. They were relics of feudalism and barbarism. A summary of these acts may be found in Eoscoe’s Cr. Ev. (7th Am. ed.) p. 425, et seq.</p> <p>These acts show that both servant and master were alike amenable to the law. The limit of punishment was three months, and that, too, in case of use of actual violence to any person or property. Vide Trades Unions ; Library Un. Knowl. vol. 14, p. 510 ; Wood Mast. & Serv. sec. 241; Mill’s Political Economy, B. 2, ch.' 13; “Danger Ahead,” by Dr. Lyman Abbott, — Century, Nov. 1885, p. 51. The parliamentary legislation was not all adopted in Vermont. Le Barron v. Le Barron, 35 Vt. 367. We did not adopt the statutes in force April 19, 1775, as did New York in her constitution. Eev. Laws, 689. Judge Stoky says in Levy v. M’Cartee, 6 Pet. 110: “The common law is constantly and generally used in contradiction to statute law.”</p> <p>The whole subject of criminal conspiracy by workmen, and whether it was an offense known at the common law is fully discussed in a recent English work. Wright on Law of Criminal Conspiracies, pp. 43-62 ; '2 Bish. Cr. Law, s. 231, note 2; Eoscoe Cr. Ev. pp. 423, 454.</p> <p>In New Jersey a well considered case declares that an indictment will not lie for conspiracy to commit a civil injury. State v. Riolcey, 1 Halst. 293 ; See 28 Am. Dec. 511; 1 Cush. 189. The leading cases of this country are those of Master, etc. Asso. v. Walsh, 2 Daly, 1; Commonwealth v. Hunt, 4 Met. 111.</p> <p>If the acts charged in the several counts are different, then the motion to quash must prevail. The first two counts set up a misdemeanor; the last a felony. A felony and a different misdemeanor cannot be joined in an indictment. 1 Bisk. Cr. Pro. ss. 189, 1.97: Commonwealth v. McLaughlin, 12 Cush. 612; Grandonv. State, 4 Hump..25; 1 Bisk. Cr. Laws, ss. 814, 790; Johnson v. State, 5 Dutcker, 453; Arck. New Cr. Proc. 93; Kane v. People, 8 Wend. 203.</p> <p>Tke motion to quask was properly overruled for several reasons. If it be conceded tkat tke first two counts attempt to set fortk a misdemeanor, and tke two last a felony, tkey are still properly joined as different descriptions .of tke same substantive offense. Tkus counts for larceny, wkick is a felony, and conspiracy to ckeat, wkick is a misdemeanor at common law, are properly joined. Henwood v. Commonwealth, 52 Pa. St. 424; State v. Hood, 51 Me. 363 ; Cowley v. State, 37 Ala. 152.' So larceny and tke receiving of stolen goods, tke latter being a common law misdemeanor, are properly joined. Harmon v. Commonwealth, 12 Serj. & R. 69 ; Steven v. State, 11 Ga. 225; Haiody v. Commomvealth, 9 Grat. (Ya.) 727; State v. Hazard, 2 R. I. 474; Keefer v. State, 4 Ind. 246; U. S. v. Prior, 5 Chranck C. C. 37 ; Stale v. Posey, 7 Rick. 484; Buck v. State, 2 Harr. & Jokn. 426; State v. Sutton, 4 Gill, 495.</p> <p>All tke counts are for tke same acts by tke same parties, at tke same time, and are but different modes of stating tke offense so as to meet tke exigencies of tke evidence. Lord Campbell in Reg. v. Ferguson, 29 L. R. Eq. 536 ; Commonwealth v. McLaughlin, 12 Cusli. 612; State v. Lincoln, 49 N. H. 464; State v. Coy, 2 Aik. 181; State v. Scott, 24 Vt. 127; State v. Smith, 43 Vt. 324; 2 Wkarton Cr. Law, s. 2338. ‘ ‘ A motion to quask is always addressed to tke discretion of tke court.” Siiaav, C. J., in Commonwealth v. Hawkins, 3 Gray, 463. Tke first and second counts for a com spiraey are good.</p> <p>All the authorities agree that a combination of several persons to accomplish an unlawful or a criminal act by lawful means or to accomplish a lawful act by unlawful or criminal means constitutes an indictable offense. It is also well settled law, and the rule has been recognized in this State, that it is sufficient to allege an unlawful or criminal combination without any averment of the same being carried into execution. Oom-monoieallh v. Hunt, 4 Met. Ill; /State v. Hoyes, 25 Vt. 415.</p> <p>Indictments have repeatedly been sustained for conspiracies to procure a woman to leave her father’s home and live in fornication or prostitution, although common prostitution was not an indictable offense. Hex v. Gray, 1 East P. C. 460 ; Reg. v. Howard, 4 E. & E. 160; Reg. v. Mears, 4 Cox C. C. 423; Rex v. Delavdl, 1 W. Bl. 439. A fraudulent agreement by a member of a pai’tnership with third persons to obtain wrongfully by false entries upon the partnership books a large portion of the partnership property is an indictable conspiracy at common law. Reg. v. Warburton, 11 Cox C. C. 584. A mock auction with sham bidders in combination to grossly exaggerate prices with intent to defraud is an indictable conspiracy. Reg. v. Lewis, 11 Cox C. C. 484. For directors of a bank, who know it to be insolvent to issue a balance sheet showing profit, declare a dividend, issue advertisements inviting the public to invest upon the faith of their representations with intent to defraud, constitutes an indictable conspiaacy. Reg. v. Brown, 7 Cox C. C. 442. A conspiracy to carnally know an unmarried female under the form of a pretended marriage is indictable. State v. Murphy, 6 Ala. 765. A conspiracy by justices of the peace to certify that a highway was in repair when they knew it to be otherwise was held indictable. Reg. v. Mawbey, 6 Term, 619. A combination between one member of a partnership and a third person to issue and put in circulation the note of the firm drawn by such pai*t-•ner for the purpose, of paying his individual debts, the intention of the combination being fraudulent, is an indicable conspiracy. State v. Gole, 39 N. J. L. 324. A conspiracy for the suppression of evidence in a judicial proceeding is indictable. State v. Dewitt, 2 Hill (S. C.) 2S2.</p> <p>It is a conspiracy to cause a marriage falsely to ’appear of record, and to obtain for that purpose from a justice of the peace a false certificate thereof. Commonwealth v. Waterman, 122 Mass. 43-. See State v. Cardoza, 11 S. C. 195; Wharton Cr. Law, s. 2322. A conspiracy by journeymen to prevent their employer from talcing into his .employment any apprentice is indictable. Hex v. Ferguson, 2 Starkie, N. P. C. 489.</p> <p>A combination to destroy a man’s business and rum him therein, constitutes an indictable conspiracy. Iiex v. Fccles, 3 Dougl. 337. 'A combination by journeymen to control wages, fine any workman who violated their rule for wages, and compel a master to discharge any workman who did not comply with the rules of the combination by all leaving the master’s employment unless he submitted to their dictation, was held to be indictable. People v. Füher, 14 Wend. 9.</p> <p>To precisely the same effect are State v. Donaldson, 32 N. J. L. 151; People v. Treqicier, Wheeler’s Crim. Cases (N; Y.) 142; People v. Melvin, 2 Wheeler’s Crim. Cases (N. Y.). 262 ; Bex v. Kimberly, 1 Lev. 62 ; Bex v. Sterling, 1 Lev. 125. A combination of workmen for the purpose of dictating to masters whom they shall employ is indictable. Bex v. Byherdyhe, 1 M. & Rob. 179 ; Bex v. Duffield, 5 Cox C. C. 404. • See Arch. Cr. Prac. & PI. 1830.; Beg. v. ITewitt, 5 Cox C. C. 162.</p> <p>In a recent case (Beginav. Bunn, 12 Cox C. C. 316), an agreement by the servants to quit without notice and in breach of their contracts with intent to impede and destroy the business of their employer is held to be an indictable conspiracy. See Wharton -Cr. Law, s. 2477 ; State v. Jaclcson, 1 Spear, 13; CainY. Dyer, 128 Mass. 70; Beg. v. Boioland, 17 Q. L. (79 E. C. L.) 671; s. c. 9 L. R. Eq. 287; s. c. 5 Cox C. C.; FlUns v. People, 28 N. Y.-177; 110 U. S. 651.</p>

<p>Actios on the case. Trial by jury, June. Term, 1885, Caledonia County, Eoss, J., presiding. Judgment for the plaintiff.</p> <p>The defendant Hunt brought a suit and recovered a judgment in a justice court against one Collins, the plaintiffs engineer, for injuries to his heifer struck by plaintiff’s locomotive. Collins, while on duty, was arrested by an officer serving the writ, and the train of cars belonging to plaintiff was thereby delayed for a short time. This suit was brought to recover damages for such delay. See this case reported in 55 Yt. 570.</p> <p>The defendant introduced evidence tending to prove that before he commenced his suit against Collins he consulted an attorney “ of competence and integrity,” and disclosed to him all the facts attending the injury, and the agency of said Collins in causing said injury ; and asked the court to charge that such consultation and advice given by such attorney, if honestly followed, would make a full defence; but the court refused so to charge, but did charge that such conduct on the part of the defendant would only be proof tending to show that he acted in good faith, and believed he had a good cause of action against Collins.</p> <p>To the charge as given on this point, and the refusal to charge as requested, the defendant excepted.</p> <p>In the course of the trial the defendant offered in evidence a duly certified record of the proceedings, Hunt v. Oollins, for the purpose of tending to show that the defendant Hunt had a cause of action against Collins, and to this the plaintiff objected, and the objection was sustained by the court; to which ruling the defendant excepted.</p> <p>Declaration in part: ‘ ‘ And the plaintiff says that the said defendant, well knowing that the said Collins was an engineer of the plaintiff, and then engaged in running one of the plaintiff’s engines and trains upon said railroad, and that the arrest and detention of the said Collins would delay the plaintiff’s said engineer and train and greatly damage the plaintiff, on the 7th day of November, A. D. 1881, at Johnson aforesaid placed said writ in the hands of a deputy sheriff of said county of Lamoille, and wrongfully, with the sole purpose of harassing the plaintiff and delaying it in the operation of its said road and in the running of its trains, -caused said deputy sheriff by virtue of said writ to stop the plaintiff’s train, on which said Collins was then and there engineer, at an undue and improper hour, to wit, at the hour of three o’clock in the morning, and to arrest the body of said Collins while so running said engine and train of the said plaintiff, and to imprison the body of the said Collins for a long space of time, to wit: for the space of one hour, and thereby to deprive the plaintiff of its said engineer, and to delay and impede its said train for the same space of time, to the great damage of the said plaintiff.”</p> <p>It was error in not allowing the defendant to prove that plaintiff had not fenced its road. E. L. s. 3412. An engineer is an agent within the meaning of the statute. E. L. s. 3412 ; Shearm. & Eed. Neg. s. 468 ; Suydam v. Moore,8 Barb. 358 ; Gorwin v. R. JR. Go. 13 N. Y. 42.</p> <p>There was error in declining to charge that the advice of counsel under the circumstances would be a full justification to the defendant Hunt. 1 Am. Lead. Cas. 267 ; 13 Am. Law Eeg. 394 ; Blunt v. Little, 3 Mason, 102 ; With v. Hoyes, 12 Pick. 324; Wilder v. Holden, 24 Pick. 8; Stone v. Swift, 4 Pick. 389 ; JRavenga v. Mackintosh, 2 B. & C. 693.</p> <p>The record of the judgment in Hunt’s favor in the case of Hunt v. Gollins, should have been admitted for the purpose it was offered. 13 G-ray, 201; 1 Hill. Torts, 456; Whitney v. JPeckham, 15 Mass. 243; 1 Wat. Tres. 98; 77 Ill. 164.</p> <p>The plaintiff claimed (and the jury by their verdict found), that Collins was not in any way negligent in running his engine, and was not to blame for the injury to the heifer. The plaintiff also claimed (and the jury by their verdict found), that Hunt in thus suing and arresting Collins, was actuated by the malicious motive of injuring and annoying the railroad company, and that he knew he had no cause of action against Collins.</p> <p>The court properly refused to receive in evidence the record of the proceedings in Hunt v. Oollms. The matter was res inter alios, and could not bind or affect the plaintiff in any way. The question was so decided in this same case when formerly before this court. See. St. Jolmsbury & Lake Champlain JR. R. Oo. v. Hunt, 55.Yt. 570.</p> <p>The defendant claims that the judgment should be reversed for error in the charge of the court upon the question of the effect to be given to the evidence that the defendant consulted an attorney and followed his advice. By their verdict under the charge, the jury must have found that however many lawyers be consulted, the defendant brought the suit against Collins solely for the malicious purpose of injuring the railroad company. Even if Hunt had the right as to Collins to bring the suit and arrest him as he did (because he had been so advised by a lawyer), he had not the right as to the railroad company to proceed maliciously under cover of that right, to impede the railroad company in its business by stopping its trains.</p> <p>The case is not the common, case for malicious prosecution brought by the party prosecuted. It is a suit brought by third party to recover for an injury inflicted maliciously upon that third party through the instrumentality of a suit against an intermediate party. The doctrine of probable cause as established by evidence that the defendant consulted an attorney and followed his advice, has no application to such a suit. The jury did not give their verdict against the defendant because he sued Collins, but because he interfered maliciously with the plaintiff’s business. They are not concluded by the erroneous advice he receives from a lawyer as to his right to sue Collins.</p>

<p> Municipal Corporation. Village Cha,Her. General Law. ' By-Law, Reasonable. </p> <p>1. Cuartee. The charter of an incorporated village authorizing it to “regulate” its victualing-houses repeals by implication the general law authorizing the selectmen of a town to license persons to keep such houses, and confers upon the village power to license.</p> <p>2. By-Laws. The by-laws of a municipal corporation, authorized by its charter, have the same effect within its limits as a special law of the legislature.</p> <p>3. By-Law, Reasonable — Restraint OJ? Trade. Under a charter which authorizes a village by its by-laws to “ regulate” its victualing-shops; to restrain nuisances, to exercise other police powers, and to impose penalties, etc., a by-law conferring power upon the trustees of the village to license persons to keep sucli shops for a year or less time under such regulations as the trustees might prescribe, and providing a penalty of $10 for keeping such shops without a license is a reasonable regulation, and not contrary to common right.</p> <p>4. Directing Verdict. When there is no conflict in the evidence and no dispute as to the facts, the only question is one of law, to be determined by the court; and in such case it is lawful to direct a verdict, and the verdict will be upheld if the law and the facts' warrant it.</p> <p>5. By-Law — Keeper oe Shop — Agent—Pleading. When one controls the business of keeping a victualing-shop in the name and upon the credit of his wife, but without her presence or personal attention, he is a keeper within the meaning of the by-law prohibiting a person from keeping such shop without a license; and he is liable in an action to recover a penalty imposed by the by-law.</p>

<p> /School District. Public Money. Presumption. Committee. Tax. Future Expenses. </p> <p>1. It is presumed that an appropriation of public money by school district officers to pay for repairs of a scliool-liouse was authorized by the district, when it does not appear whether it was or not.</p> <p>2. Money borrowed by a school committee without the authority, but on the credit, of the district, and used to supply a temporary need in paying the expenses of the school, may he treated as if borrowed of himself, and as,a part of the expenses for which a tax might legally be assessed under a vote of the district.</p> <p>3. A committee in assessing a tax has a right to anticipate the wants of a district, and may legally assess it at a reasonable time before the money is required.</p>

<p> Master and Servant. Assault. Threats. Excuse for Leaving Master’s Employment. </p> <p>1. An assault without a battery may or may not be a sufficient justification tor a servant in leaving his master’s employment before the expiration ot the term of his service; but when a master, without Any provocation, commits an assault upon his servant, and thereby causes him to fear injury, it is a good excuse for leaving.</p> <p>2. Following an angry controversy, a threatening movement in close proximity, accompanied by violent language in the nature of a threat, and by a much larger and more powerful mail, causing one to fear injury, constitutes an assault.</p>

<p> Power of Town to lay Highway at Grade across Railroad. Act of 1886, No. 20, Effect of, on Pending Suit. </p> <p>Prior to tlie Act of 1886, No. 20, the selectmen or the County Court had no authority to establish a highway at grade across a railroad trackbut while this case was pending on appeal in the County Court, haying- been remanded from the Supreme Court, said act was passed, which authorized the laying of a highway at grade; Held, as the act gave no original jurisdiction, and as the jurisdiction of the County Court was merely appellate, that it had in this case no power to establish such highway; and that proceedings must be commenced de novo.</p>

Tebsx'ass for the entrance upon the plaintiff’s close and cutting the grass. Heard on a referee’s report, December Term, 1886, POWERS, J., presiding. Judgment on the report for the defendants. The language used in the deed, — “ privilege of occupying,” etc., — is the common and ordinary language when a license or permission is granted. The words are inconsistent with the idea of absolute ownership.

<p>Action oh the case for negligence. Trial by jury, December Term, 1886, Powers, J., presiding. Verdict and judgment for tbe plaintiff.</p> <p>Tbe plaintiff had title to a carriage shop on tbe southerly side of a road leading through Peacham ; and tbe defendant, for six years and more prior to this suit,'had been in the actual occupation, use and control of a saw-mill just below the plaintiff’s shop, and the flume supplying the same with water, under a contract of purchase from the heirs and in his.own right.</p> <p>The water used to run the shop and saw-mill was divided above the road, and a part of it was carried in a penstock to the plaintiff’s shop, and the rest run in a plank flume to defendant’s mill. .</p> <p>The plaintiff’s evidence tended to prove that this flume was elevated upon a cob-house framework of logs about six feet high, whore it passed the northwest corner of the plaintiff’s shop ; that this flume passed down by the side of the shop to defendant’s saw-mill, but at a distance of several feet after passing said northwest corner; that the defendant’s flume at said northwest corner was some 18 to 24 inches from his shop ; that for some time prior to the suit said flume had been out of repair and leaky ; that the defendant know of the condition of the flume, but had not repaired it; that the water gushed out of it at this northwest corner, spattered the plaintiff’s buildings on the outside, and formed ice under the same ; by all of which the building was greatly rotted and thrown out of level or line ; and that the machinery that was in said shop was also thrown out of level, the water wheel in the basement frozen up and stopped : and that' the business which the plaintiff and his son, Scott Earnum, had, for more than six years prior to suit, carried on in said shop, as hereafter stated, had been greatly interrupted, hindered and delayed.</p> <p>The plaintiff sought to recover all damage done to his shop, the expenses of putting it in level and machinery in line, and also for loss in consequence, of the interruption to the business done in the shop. The plaintiff introduced evidence as to all said damages.</p> <p>The defendant’s testimony tended to show that this saw-mill and flume at the time of suit, and for some time prior, belonged to the estate of his father, Isaac Ewell, deceased; that he had no deed of two-thirds of said mill and flume, but he had agreed with the other two heirs to buy their share of same; that the flume was just as good as it was when his father died, or as it had been for many years ; that it did not leak much; etc.</p> <p>The defendant introduced evidence to show that the part of plaintiff’s shop wet from defendant’s flume was over plaintiff’s line, and upon that of the Ewell heirs as aforesaid; that plaintiff, in the dry weather, would stop up the opening to this flume where the water was divided, so that all the water would run to his shop; that in consequence of this the timber in flume would dry up, and that then the flume ’would for some time leak badly, and timber rot faster than it otherwise would hare done.</p> <p>The plaintiff introduced his son, Scott Farnum, who, on cross-examination, testified in substance as follows: That he and his father for ten years last past had carried on business in said shop of carriage making and repairing, planing lumber, etc. ; that there had been, since he was 17 or 18 years old, a sign on north end of shop which read, “A. B. Farnum & Son ” ; that all the business was done in that name ; that all orders were given and taken in that name, etc.; * * * that if there was any loss, bad debts, etc., he had no partnership in it; that the credit was given to them both ; that when he was 21, some five or six years ago, his father told him he might have half of what they made provided he would stay at home, and he did stay at homo ; that they kept no separate account of work, but all was charged upon a common book; that either settled all accounts as he pleased; that one had as much control of the business as the other, and had common access to shop ; that he paid no rent on shop, and that he helped pay repairs that had been made.</p> <p>The plaintiff was the sole owner of the machinery which was claimed to have been injured.</p> <p>There was no other proof to vary or alter the above evidence of said Scott Farnum.</p> <p>The defendant’s counsel in his argument claimed to jury that plaintiff could not in this action, in his sole name, recover all the damages occasioned by the interruption to business (if any), because this business belonged to the partnership of Farnum & Son, and not to plaintiff alone; but the court, on objection made by plaintiff’s counsel, stopped the counsel, and said there, was no evidence to show any partnership between plaintiff and his son; that he should instruct the jury so, and that counsel must not argue that point any further; and counsel did not do so. To this ruling and refusal the defendant excepted.</p> <p>The court in its. charge told its jury there was no proof of partnership between plaintiff and his son; that plaintiff could in this action recover for all loss to his business in consequence of the negligence of defendant as aforesaid.</p> <p>The plaintiff declared for and claimed damages for loss of business. ■ He could not recover the son’s loss caused by an interruption of the business. “Partnei’ship is a question of law, dependent on the facts ; but when there is any doubt as to the facts it becomes a question for the jury to decide.” Prof. Jur. ss. 274, 316. There maybe a legal partnership even though a partner is guaranteed against loss. Parson Part. p. 42. And this is the rule in this State. Chapman v. Dever-eanx, 32 Yt. 616; Brigham v. Dana, 25 Yt. 29. As to the damages, see Wood Mayne Dam. s. 624.</p> <p>To form a partnership there must be a share in the profits and loss of the business, and the terms when used in reference to this subject denote-the ultimate profit of the operation. Bowman v. Bailey, 10 Yt. 170; Kellogg v. Griswold, 12 Yt. 291; Morgan v. Stearns, 41 Yt. 398. Sharing in the profit and loss is not decisive between the parties, as it may have been a mere arrangement with a view to compensation for services rendered in the employment. Flint v. Marble Oo. ; Farrand v. Gleason, 56 Yt. 633; Bailey v. Clark, 6 Pick. 372; Chace v. Barrett, 4 Paige, 148. This case falls within the line of cases where the share reserved is in compensation for services, and is not a strict partnership. Bowman v. Bailey, supra; Ambler v. Bradley, 6 Yt. 119.; Tobias v. Blin, 21 Yt. 544; Mason v. Potter, 26 Yt. 722; Hawhins v. McIntyre, 45 Yt. 496 ; Baxter v. Bodman, 3 Pick. 435 ; Heslteth v. Blanchard, 4 East. 144 ; Muzzy v. Whitney, 10 Johns. 226 ; Van-derbey v. I-Iowe, 20 Wend. 70; Burckle v. Fclchart, 1 Denio, 337 ; Bradley v. While, 10 Met. 303.</p> <p>The action is a possessory action and not a merely personal action, like a suit for a chattel, and if the plaintiffs were tenants in common, one of them could recover the full damage. Hib-bard v. Foster, 24 Yt. 542; Bigéloio y. Rising, 41 Vt. 678 ; Shawv. Cummuskey, 7 Pick. 76.</p>

General Assumpsit. Heard upon an agreed case, June Term, 1886, Ross, J., presiding. Judgment pro forma for the defendant. It was conceded that .the State was entitled to exceptions. Agreed statement: The action is general assumpsit. The State claims to recover the amount of certain. fines and costs which were paid to the village treasurer at various times between the first day of August, 1881, and March, 1885.

Bill in Chancery. • Heard on a special master’s report, June Term, 1886, Eoss, Chancellor. Decree that the defend- ■ ant pay to the oratrix the sum of $200 for her support yearly so long as she shall live, payable semi-annually, and in default of payment, to be foreclosed of all equity in the premises. The master was Judge Poland, who found, among other things: “ The oratrix is the widow of Obadiah Young, and the defendant is the son of the oratrix and the said Obadiah.

Appeal by defendant from a decree of tbe Probate Court in the settlement of his account as executor of the estate of Eufus Perkins. Heard on a commissioner’s report, September Term, 1885, Eutland County, Veazey, J., presiding. Judgment on the repoiL allowing only simple interest against the defendant. Exceptions by the plaintiff. The case appears in the opinion. The executor is chargeable with the highest legal rate of interest on the money mingled with his own.

Trespass quare clausum. Plea, general issue with notice. Trial by court, September Term, 1886, Veazei^, J., presiding. Judgment for the plaintiff. The plaintiff owned a vacant lot in the Village of Rutland. In the summer of 1885 he rented to Barnum’s circus the right to erect a fence or bill-board on two sides of the lot for the display of advertisements ; and the fence was built about twelve feet high.

INDICTMENT charging the respondent with the illegal sale of intoxicating liquor. Trial by jury, September Term, 1886, Veazey, J., presiding. Verdict, guilty of three second offenses; and the respondent was sentenced as provided by law.

ActíoN on the case for injuries claimed to have been received through the insufficiency of a bridge in the defendant town., Trial-by .jury, September Term, 1886, Veázey, J., presiding. Judgment for the plaintiff.

Tkovee for three tons of hay. Heard on a referee’s report, September Term, 1886, Veazet, J., presiding. Judgment for the plaintiff to recover $34.40, the value of three tons of hay. The plaintiffs having carried on for one year the defendant’s farm under a verbal lease by which each was to have one-hálf the avails and products, moved away from the premises at the expiration of the lease, leaving six tons of undivided hay raised on said farm.

Assumpsit. Appeal from the municipal court of Rutland. Plea of discharge in bankruptcy. Heard by the court on pleadings and an agreed statement, September Term, 1886, Veazey, J., presiding. Judgment pro forma for the plaintiff to recover the sum of $164.31 damages and $7.98 costs, it being one-third of the sum paid by the said Liddell to satisfy the judgment rendered against him on the note signed by the plaintiff, defendant, and seven other parties.

Bill m Ci-iaNCEEY. Heard on the pleadings and a special master's report, September Term, 1885, Walker, Chancellor. The master found, in part: “ On February 31, 1860, they sold by their joint deeds three parcels of land from said farm', for the sum in all of $4,242, and another parcel was also at same time so sold for the sum of $300, leaving in the farm about fourty-four acres of arable land and twenty-four acres of swamp.

Bill in Chancery. Heard on bill, answers, replication, and special- master’s report, March Term, 1886, Veazey, Chancellor.

Debt on judgment. Plea, nul tiel record, with notice. Trial by court, September Term, 1886, Veazey, J., presiding. Judgment for the plaintiff for the amount of the former judgment. The case appears in the opinion. The judgment in suit is a judgment against district No. 1 as it was constituted at the date of the writ upon which the judgment was rendered, which is school district No. 1, as now constituted, and is not a judgment against the old district.

PetitioN for appeal under the statute — R. L. s. 1428. Heard September Term, 1886, Yeazey, J., presiding. The petitionee moved to dismiss. Held: in the exercise of its discretion, upon the evidence, that the petitioner was unjustly deprived of his day in court by fraud, accident or mistake ; that said judgment was reversed and set aside without terms ; that the petitioner be allowed to enter said cause ; that the petitionee should pay the petitioner his costs.

Tro veil. Pleas, general issue and Statute of Limitations. Trial by court, LaNDON, J., presiding. Judgment for the defendant. Held: and as applied to contracts for the payment of money, is this : In the one case it acts on the title, and when the bar is perfect transfers it to the adverse possessor, whilst in the other there is no such thing as an adverse possession; but the statute simply' affects the remedy and not the debt. Ang. Lim. 304.

PETITION 'to foreclose'two-mortgages* . Heard on-a special toaster’s report, September Term, 18-86,- Veaxey, .Chancellor. Decree pro forma for the orator for the amount reported by the toaster, and interest, which was $916..08. The master found as to the indebtedness, etc.,-as follows : - :¡ '“The petitioners claim an indebtedness under said mortgages of $916 08-1Ü0,. with interest from June 2d, 18-86. . Said claim is shown by- the statement of account and note.

INDICTMENT charging the respondent with signing and issuing a false and fraudulent certificate of the capital stock of the Rutland Railroad Company. Heard on demurrer to the indictment, September Term, 1884, Ross, J., presiding.

Book Account. Heard on an auditor’s report, September Term, 1886, Royce, Cb. J., presiding. Judgment y>ro forma and without hearing for the plaintiff to recover the larger sum found due by the auditor, which was $628.55. But the auditor found that if the subscription was applied on the account there was’due only $18.05.

Book AccouNT. Heard on an auditor’s report, September Term, 1886, Royce, Cb. J., presiding. Judgment for the plaintiffs. See W. O. Smith v. 0. A. Burton and E. A. Soioles, ante, 408, where is fully set forth the interest which these defendants had in the Glens Falls Shirt Factory, and their relation to each other.

Bill in ChaNOERY. Heard on bill, answer, replication, and a special master’s report, September Term, 1886, Taet, Chancellor. The suit was brought to recover land damages on land taken by the defendant railroad, and in default of payment for a foreclosure. The prayer of the bill was that the defendants be ordered to pay the damages, and in default of payment that they be perpetually enjoined from operating their railroad over and across the orator’s farm.

Assumpsit upon a promissory note. Pleas, general issue and Statute of Limitations. Heard on a referee’s report, September Term, 1885, Royce, Ch. J., presiding. Judgment for the defendant. The case appears in the opinion.

Teovek for a certain mare. Trial by jury, April Term, 1886, Rovce, Ch. J., presiding. Judgment on a special verdict for the defendant. The case appears in the opinion. This is not a new question. It has been repeatedly held that if an officer would justify under returnable process he must show its return, else he is a trespasser ab initio. Freeman v. Bleioitt, 1 Salk- 409; Middleton v. Price, Stra. 1184; 1 WIls. 17 ; Bac.

Heard on an auditor’s report, April Term, 1886, Roxce, Ch. JV, presiding. Judgment on the report for the defendant in the case of Robie, adm’r, v. Briggs’ estate, and judgment for the plaintiff in the case of Temple, adm’r, v..Horskins’ estate. The cas'e appears in the opinion. * The individual account of Horskins is continuous and independent ; and so is the partnership account.

<p>Trespass quare clausum frec/it. Heard on a referee’s report September Term, 1886, Royce, Ch. J., presiding. Judgment on the report for the plaintiff.</p> <p>The County' Court did not have jurisdiction. R. L., s. 821. The action should have been brought by the husband and wife jointly. Ilackett v. Hewitt, 57 Vt. 442 ; 1 Wash. R. P. 279 ; 2 Kent Com. 131; Kelley Cont. 82.</p> <p>In all cases where the right of action would survive to the wife, the husband and wife must join in any action brought therefor. 1 Par. Con. 286; 1 Chit, PI. 74; 10 Pick. 469 ; Morse v. Earl, 13 Wend. 271; Milner v. Milner, 3 Term, 631; Bamsey v. George, 1 M. & S. 176. Hubbell’s testimony was admissible. Rob. Dig., p. 272 ; Davis v. Judge, 44 Vt. 500. The wife would not be estopped by this action. Wright v. Hazen, 24 Vt. 143; Knapp v. Marlboro, 31 Vt. 674; 52 Vt. 287 ; 57 Vt. 42.</p> <p>The court had jurisdiction. Doubleday v. Marstin, 27 Vt. 488; Montgomery v. Edwards, 45 Vt. 75; Ladd v. Hill, 4 Vt. 164. It was unnecessary to join the wife. 1 Chit. PI. 74; Bowen v. Anderson, 47 Vt. 569 ; Holton v. Whitney, 28 Vt. 448 ; Allen v. Kingsbury, 16 Pick. 235 ; Clapp v. ■Stoughton, 10 Pick. 469. This objection is waived by the reference. The parol evidence was not admissible. Bingry v. Watkins, 17 Vt. 379 ; Morse v. Low, 44 Vt. 561; Abbott v. Choate, 47 Vt. 53; Vt. Cen. R. R. Co. v. Hill, 23 Vt. 681.</p>

<p> Pleading. Replication. Demurrer. Duplicity. Consideration. Stafaiie of Limitations. </p> <p>1. The question oí duplicity in a replication cannot be raised by general demurrer.</p> <p>2. To an action of assumpsit brought by tbe plaintiffs, G. & H., tbe defendant pleaded the Statute of Limitations, and the plaintiffs in their replication alleged that tbe defendant promised to waive said statute as to their causes of action against him in consideration that they would bring about a settlement of open matters, at a specified sum, between the defendant and another firm of which G. was a partner, and that the plaintiffs caused the firm to pay said sum; Seld, that a sufficient consideration for the new promise was alleged, if any other than the original indebtedness was necessary.</p> <p>3. In a replication to a plea of the Statute of Limitations wherein is set forth the defendant’s piromise to waive said statute, it is not necessary to allege that the promise was in writing.</p>

Book Acooukt. Heárd on an auditor’s report, April Term, 1886. Royce, Ch. J., presiding. Judgment for the defendant. The account of the plaintiffs was allowed by the auditor at $1,657.13, and the defendant’s at $1,676.38. The case appears in the opinion. This was not an entire contract; and was not for any specified time. A reasonable deduction should be allowed for the absence of Mrs. Greene.

<p>[In Chancery.]</p> <p> Water Rights. Mill Owners. Riparian Owners. Equitable Contribution to Maintain Dam. Deeds, Construction of. </p> <p>1. The equitable principle, that when several persons enjoy a common benefit, all must contribute rateably to the discharge of the burdens incident to the exisi> ence of the benefit, does not apply, where the deeds of conveyance establish the rights of each of several mill owners, and define their liabilities as to contribution in maintaining a dam, in which all have a common interest.</p> <p>2. And contribution will not be decreed against one of them whose mill privilege is not used, and there is no probability that it over will be.</p> <p>3. Deeds, Pjracticai, ConstkuctioN oe, by Pajotes. Where several mill owners, having derived their titles from a common grantor, have an interest in a reservoir dam, and for many years Rave given a practical construction to tlioir deeds, in that some Rave contributed towards tRe maintenance of tlie dam, and otRers Rave not, tRe court will consider sucli construction in defining tlie deeds.</p> <p>4. COMMON Reservoir. Bights OR MINORITY. WRere one by representing a majority interest is authorized to determine as to repairs of the dam, Re is under tlie duty to decide fairly and conduct tlie worlc prudently.</p> <p>5. MunTiRARiOUSNESS. A bill is multifarious which seeks relief of one kind against one defendant, and another on different grounds against the other defendants. But this objection must be raised before final Rearing.</p> <p>6. Costs. Some inadmissible evidence of trivial importance was put in by both parties, but the court declined to restrict the costs.</p>

Bill in Chancery. Heard on the pleadings and special master’s report, December Term, 1886, Taft, Chancellor. It appeared that in August, 188Ó, John M. Dyer sold and conveyed to Frederick Kopper the premises described in' the original bill, being the real estate known as the Lake Dun-more hotel property, in Salisbury, together with a large amount of personal property, for the agreed price of $13,500.

Book Account. Appeal from the commissioners upon the estate of Oliver Frost. Heard on an auditor’s report and exceptions thereto, June Term, 1885, Veazey, J., presiding. Judgment pro forma for the plaintiffs to recover 1149.13 on the items since the year 1876. One of the exceptions to the report was that book account by the husband and wife was not the appropriate form of action. The other facts are sufficiently stated in the opinion.

Heard on a commissioner’s report, March Term, 1885, Walker, J., presiding. Judgment affirming the decree of the Probate Court, which allowed the executor’s account.

GENERAL Assumpsit. Plea, general issue. Trial by jury, September Term, 1886, Walker, J., presiding. Verdict for the plaintiff to recover $77.13. The plaintiff sought to recover an account extending over a period of time from May 1, 1874, to June 11, 1883, inclusive, and amounting, exclusive of credits, to $150.79. Prom May 1, 1874, to August 10, 1878, sixty-two and 22-100 dollars of the foregoing amount was charged to William Sanders, the defendant’s husband.

GENERAL Assumpsit. Heard on a referee’s report, September Term, 1886, Walker, J., presiding. Judgment, that the plaintiff could recover only upon his claim, item No. 2, $16.20, damages, and costs be apportioned ; and that he could not recover for his services, found by the referee to be.worth $200 over and above what the defendant furnished him, and interest from April 24, 1881. Exceptions by the plaintiff.

<p>PetitioN under section 6 of No. 18 of the Acts of 1884. Heard by the court, March Term, 1886, Walker, J., presiding. The. petition was heard upon' evidence taken upon notice and filed in court.</p> <p>It appeared that the County Court made an order in 1873, by which the town of Wardsboro was assessed to pay to the town of Jamaica forty per cent of the expense of putting and keeping in repair tbe highway described in the petition. Judgment that said order be vacated ; and that all proceedings to enforce the collection in payment of any assessment made upon said order of 1873, after the service of the petition in this cause, be staid.</p> <p>The case appears in the opinion.</p>

GENERAL assumpsit to recover taxes paid under protest by the plaintiff. Trial by jury, September Term, 1885, Walker, J., presiding. Yerdict directed for the plaintiff. The action was brought to recover taxes assessed for the year 1885.

Smith, a pauper. Heard on the report of a referee, March Term, 1885, Walker, J., presiding. Judgment that the pauper was unduly removed. The case appears in the opinion. Mrs. Smith, after the abandonment, became in law the head of the family, as much so as her husband was before the abandonment ; and as she had an actual residence or home in Kock-ingham at time of abandonment, such residence in.law continued to date of order of removal.

INDICTMENT charging the respondent with incest. The re-respondent demurred; the demurrer was overruled, and trial by jury, September Term, 1886, Walker, J., presiding. 'Verdict, guilty. The respondent also moved in arrest of judgment on the ground that the indictment was insufficient. The indictment was insufficient, because it did not charge the respondent with knowledge of the relationship. Rea v. Harrington, 58 Vt. 181.

<p>Bill in ChaNCEry. Heard on bill, cross-bills, answers, replications, concessions, master’s report.and exceptions thereto, May Term, 1885, Taut, Chancellor.</p> <p>It was decreed that the original cause be dismissed as to Hodges with costs, and that the orator have decree against the defendants in accordance with the prayer of the bill. In the cross-cause of Hodges-v. Dow and others, decree for the orator with costs. In the cross-cause of Gifford, Adm’r v. Dow and others, it was decreed that there was due from the estate of James Morse to Wilson, trustee, the sum shown by the master’s report, and that the same be paid with costs. It was further adjudged that the said Hannah Barnes should have a Hen upon the personal property belonging to the Barnes estate in the hands of Wilson as against the said Dow and wife in the sum of $389, named in the report, and interest thereon. The orators in the original cause, and Gifford in all the causes, appealed.</p> <p>The bill, as originally drawn, was in favor of Hannah Barnes against Lewis B, Dow and wife and Smith Hodges, complaining that she had not been properly supported in accordance with the will of George Barnes, and asking for a foreclosure unless she’was so supported.</p> <p>After the case had been entered in court, Henry Gilford, as administrator of James Morse, entered as a party defendant, and claimed that there was a large balance due Morse’s estate as executor of the last will and testament of George Barnes, and filed his cross-bill to have the same paid out of the estate. James J. Wilson was appointed December 5, 1883, by the Probate Court a trustee under the provisions of the will in place of James Morse, deceased, and said Wilson asked and was granted leave to enter as co-orator. Dow and his wife, Helen Dow, answered that Hannah Barnes had been properly súpported ; but admitted that the facts as to giving the mortgage to Hodges were substantially as alleged by him in his cross-bill. Hodges also answered and filed a cross-bill setting forth that on the 17th day of August, 1878, he loaned $900, at the request of Morse and Dow and Hannah Barnes, upon a mortgage signed by Lewis B. Dow and Hannah Barnes ; that said money was obtained fi’om him by representations and assurances that it was to be used to pay debts due from the estate of said Barnes ; that Hodges understood that he should have the first lien upon said real estate; that it was supposed that the note signed by Dow, and the mortgage signed by said Dow and Hannah Barnes, constituted the first, lien and incum-brance upon said real estate ; and further, that the money was used in paying claims allowed against said George Barnes’ estate; and praying that the money so advanced by Hodges be declared the first lien upon said real estate, for foreclosure, and also for general relief.</p> <p>It was agreed by all the parties before the master that any amendment, answer or cross-bill, might be filed at any time necessary to equitably adjust all matters between them, and that the court might hear and determine the same as if they were already filed. It appeared from the report of the special master that George Barnes deceased in the month of Decern-ber, 1876, leaving a will disposing of his estate, both real and personal, as follows:</p> <p>“2d. I give, devise, and dispose to my nephew, Lewis A. Dow, and his heirs, all of my effects or estate, both real and personal, except the support of my sister, Hannah Barnes, during her lifetime. And I give my estate in trust of my executor.”</p> <p>“ 3d. I give to Hannah Barnes, my sister, her support during her natural lifetime out of my estate.”</p> <p>“ And I do hereby appoint James E. Morse, of Royalton, Vermont, to be the executor of this my last will and testament.”</p> <p>Said will was duly probated and allowed, and said Morse accepted said trust as executor. James E. Morse settled his administration account with the estate February 13, 1882, and died in the month following.</p> <p>Henry T. Gifford was appointed administrator of the estate of said Morse. On the 5th of December, 1883, James J. Wilson was appointed trustee under said will.</p> <p>On the 7th of April, 1885, Wilson, as trustee, petitioned the Probate Court for a re-hearing and correction of the account of Morse as executor of the Barnes’ estate.</p> <p>The matter was heard in Probate Court, and judgment and decree rendered therein, from which Wilson appealed to the County Court, which appeal is now pending.</p> <p>The special master reported that he found two subjects of contention before him. One in relation to the giving a mortgage by Lewis B. Dow ánd Hannah Barnes to Smith Hodges. In respect to this it appeared that a short time before the 17th of August, 1878, Morse, as executor, claimed to desire to raise $800 to pay claims allowed against the estate of George Barnes. He consulted with Dow touching the matter, and they concluded that the whole estate of George Barnes, after the payment of the debts, belonged to the said Dow, subject to the support of the said Hannah Barnes ; and that the desired amount of money could be raised on a note given by Dow and secured by a mortgage on the farm owned by said Barnes at his death, and that the mortgage should be executed by said Dow and Hannah Barnes.</p> <p>As a result of these negotiations, on the said 17th day of August, 1878., Hodges let Dow have $900, and received his note for that sum payable on the 16th day of August, 1882, with interest annually.</p> <p>The said Dow and Hannah Barnes on that day executed a mortgage to said Plodges to secure the payment of this note. Morse was one of the witnesses to this mortgage.</p> <p>Hannah Barnes rtas at first unwilling to sign said mortgage; but when told by Morse that it was to raise money to pay debts of George Barnes’ estate, and that the real estate was charged with that burden, and that it would make no difference to her, she executed the mortgage. She was advised to the same effect by the town clerk. Morse wrote the mortgage. Hodges was not present when the mortgage was executed, and never had any talk with Hannah Barnes in relation thereto.</p> <p>Of the money raised by this mortgage, $496 was handed to Morse by Dow. Out of the remainder Dow paid debts of the estate amounting to $176.63, and also $35 for a burial casket in which George Barnes was buried. The total amount of debts thus paid by Dow to Morse and on the claims amounted to $706.65. In addition to this sum-paid by Dow, he paid to one N. M. Russ a bill of $69.50 on a store account which Russ had against him for goods furnished and used by Dow on his said farm and in his family while said Hannah was a member of it, and receiving her support from him under the will. Dow also paid to one Cross for work on the farm the same year the sum of $69.55.</p> <p>The balance of the $900 raised by said mortgage was used by Dow to buy a pair of oxen which he used on the farm. • No payment on the mortgage note has ever been made.</p> <p>It appeared that Dow lived on this farm from and after the death of the said George Barnes and that Hannah Barnes lived with and was supported by him until trouble arose, and she left. The personal estate of the said George Barnes was inventoried at $2,305.85.</p> <p>On the 4th day of November, 1878, Morse turned over to Dow of personal property belonging to the estate what was appraised at. $814.87; and this amount of property was in Morse’s hands at the time of the execution of the mortgage to Hodges.</p> <p>On the 10th day of December, 1883, Wilson, as trustee, took an inventory of certain personal property on the farm amounting, according to his estimate to $394.</p> <p>The farming tools on the farm at the death of Barnes are still there, and their value kept equal to what it then was, namely, $170.25. That the household goods are still there, and worth their appraised value, $46.07.</p> <p>The debts were nearly or quite paid by the 4th of November, 1878, and after that time, and up to the time when Wilson was appointed trustee, Dow managed the farm as his own.</p> <p>Dow had the use and possession of the farm and stock from the death of Barnes to the appointment of Wilson as trustee, and carried on the same, using the avails for the support of his family and Hannah Barnes, while she lived with them, hiring-help and paying it, and disposed of the avails for his own use except what he let Morse have.</p> <p>Morse had paid out for the estate and had charges against it to the amount of $1,238. He had, at the same time, received from the estate, in cash, about $1,185. This did not include the personal property, amounting to $814.84, which Morse afterward turned over to Dow.</p> <p>Neither Hodges, Hannah Barnes, or Dow, knew how the account between Morse and the estate stood on the 17th day of August, 1878.</p> <p>When the mortgage was executed said Hodges, Dow and Morse understood that Hodges was getting the first lien on the real estate. All that Hannah Barnes knew about it was what Morse and the town clerk had told her, which was that the mortgage would not affect her, if Morse’s representations were true.</p> <p>Another subject of contention before the special master was the account of Morse as executor.</p> <p>The account, as examined and allowed by the Probate Court in February, 1882, showed a large balance due Morse from the Barnes estate. It was claimed by Wilson, and by Hannah Barnes and by Smith Hodges, that the account was erroneous, and if corrected Avould show a balance due from the Morse estate to the Barnes estate.</p> <p>The master found several items, which he specified,, which should have been credited to the Barnes estate. The result of his findings was to bring the Morse estate in debt to the Barnes estate.</p> <p>The solicitor for Gifford objected to any hearing as to the correctness of said Morse’s account as executor, as said appeal to the County Court was then pending.</p> <p>The master overruled the objection, and Gifford excepted.</p> <p>Said Dow was used as a witness in his own behalf and in behalf of Wilson, who had become a party to this suit. Mr. Gifford, administator, objected to his testifying to anything transpiring prior to the death of Morse. The objection was overruled, and Dow was allowed to testify generally, and particularly as to what took place at the settlement of Morse’s administration account at the time it took _ place in the Probate Court; to which Gifford excepted.</p> <p>One James Barnes had an account against the estate of George Barnes, which was allowed by the commissioners, and which Morse charged the estate for paying, and it was claimed by Mr. Wilson that the claim was paid by said Dow and should not be charged in the account. At the hearing Dow was asked by Mr. Wilson who paid the claim allowed by the commissioners to James Barnes.</p> <p>The witness answered that he paid it; to which question and answer Gifford objected. Similar questions were asked as to two similar items, to which like answers were made; also against the objections and exceptions of Gifford.</p> <p>Dow was further asked by Mr. Wilson what was said to him by Morse in relation to his paying claims against the estate. To this question Gifford objected and excepted.</p> <p>The answer was that, “ He told me if there were any claims I could pay them and take a receipt for them; it would save him the trouble of going round.”</p> <p>Under like objection and exception Dow was allowed to testify at great length in respect to his dealings with Morse as executor, and the property of Barnes prior to the decease of Morse.</p> <p>In the progress of the hearing on the part of Gifford as to item 11, he produced a book claimed to be in Morse’s handwriting, and which he called his day-book. The master so found.</p> <p>The following two entries in said book were offered in evidence, but were excluded:</p> <p>(1) “ Signed note with Dow to bank — 200—he had the money to pay Hannah Barnes’ commissioners’ account alLowed, and I paid the note, except what money I got from M. S. Adams for lumber.”</p> <p>(2) “ See Dow about bank note, which money he had to pay Hannah, and I paid note.”</p> <p>The first of said entries appeared on the book under date of November 4,1878 ; the second under date of December 28,1878.</p> <p>It was agreed that the estate of George Barnes failed to support Hannah Barnes, agreeably to the provisions of said will, for the years 1880, 1881, 1882, and until December 12, 1883, and that the support so withheld was worth |389 ; and that, although a portion of the support was withheld since the commencement of this suit, the court could adjudge that said Hannah should have a lien on the money and personal property in the hands of the trustee, Wilson, for security of the payment of said sum by said Dow, or make such further order as the case may require.</p> <p>The court having jurisdiction of a portion of the matter in controversy, will retain and dispose of the whole -case. The defendant Gifford, on the ground that his testator, Mofise, is dead, objects to Dow ás a witness.</p> <p>To exclude a party to the record as a witness, it must appear that he is a party to the original 'conti'act or cause of action in issue and on trial. Shailer v. Bumstead, 99 Mass. 112 ; Morse v. Low, 44 Yt. 561.</p> <p>In this case Dow and wife, Hodges, Hannah Barnes and Wilson, were all-legal witnesses on the accounting between the estate and Morse in the Probate Court, but now they claim that Gifford by his cross-bill and aid of this statute has disqualified them all. Thrall v. Seward, 37 Yt. 579 ; Fitzsim-mons v. Southwick, 38 Vt. 514; Benoir v. Paquim, 40 Vt. 199; Hollister v. Young, 41 Yt. 160; -Walker v. Taylor, 43 Yt. 616; French v. Eaton, 49 Yt. 471.</p> <p>The contract in issue, about which Dow testified, was raised by Gifford’s cross-bill, and the answers thereto of Barnes and Wilson.</p> <p>The contract in issue was, Did the Barnes estate owe the Morse estate? Or, to be more precise, Was there an implied contract that the Barnes estate should pay the Morse estate the three claims named in said report? Downs v. Belding, 46 Vt. 677 ; Morse v. Low, 44 Vt. 361; Oole v. Shurtleff, 41 Vt. 311; Bank v. Schofield, 39 Yt. 590 ; Oheney v. Peirce, 37 Vt. 528 ; Taylor v. Finley, 48 Yt. 81.</p> <p>Parole memoranda in a pass-book or elsewhere are not admissible ás independent testimony. Lapham. v. Kelley, 35 Vt. 195 ; Jewett v. Winship, 42 Yt. 204; Gross v. Bartholomew, 42 Vt. 206; Paris v. Bellows, 52 Vt. 353.</p> <p>The testator’s intention is evident, as shown by the will. He intended to provide a suppoi’t for his sister during her life. The residue of his estate was to go to his nephew.</p> <p>He intended to make his sister’s support sure and certain, so he conveyed his whole estate to his executor in trust.</p> <p>The title of the estate was in the trustee. Boldship. v. Paterson, 7 Watts, 551; 3 Watts & Scrg. 330; Swift Dig. 121. Neither trustee nor the cestui que trust could divest this property from the appointed purposes.' 1 Perry Trusts, s. 386 ; White v. White, .30 Yt. 338; Van Amee v.. Jackson, 35 Yt. 178 ; Perkins v. Hays, 3 Gray, 405.</p> <p>This same doctrine is held in Whiting v. Whiting, 4 Gray, 237; Hall v. Williams, 120 Mass. 345; Bank v. Adams, 133 Mass. 170; Poster v. Foster, 133 Mass. 179 ; 105 Mass. 425 ; 59 Pa. St. 393 ; 47 Pa. St. 113.</p> <p>The trust fund was not attachable. Key ser v. Mitchell, 67 Pa. St. 473 ; Vaux v. Park, 7 Watts & Serg. 19 ; 31 N. Y. 1; Lock v. Mabbell, 3 Abb. Ct. App. 69 ; Wetmore v. Truslow, 51 N. Y. 338. Hodges could not invoke the doctrine of sub-rogation. Bank v. Gushing, 53 Vt. 327 ; Sheld. Sub. 1 and 240 ; 40 Yt. 408.</p> <p>The master erred in hearing the question of the correctness of Morse’s account.</p> <p>This question is for the Probate Court, and trustee has applied to that jurisdiction for relief, and has taken this question to the County Court by appeal, where said cause now is. Glastenbury v. McDonald, 44 Yt. 450.</p> <p>No court will interfere with a judgment of another of competent jurisdiction.</p> <p>The master erred in admitting defendant Dow as a witness.</p> <p>The cause of action in issue and on trial is the account of J. E. Morse, executor of George Barnes. Dow is a party thereto, and by the statute is excluded. R. L., s. 1002;. Woodbury v. Woodbury Pst. 48 Yt. 94; Gole v. Shurtleff, 41/Vt. 311; Pember v. Gongdon, 55 Vt. 58 ; Hollister v. Ybung, 41 Yt. 156; Jewett v. Winship, 42 Vt. 204; Manf. Bank v. Schofield, 39 Vt. 590; McKillop v. Jackman et al. 50 Vt. 57 ; Blair v. Plsworth, 55 Yt. 415 ; Fitzsimmons v. South-wick, 38 Yt. 509, 515 ; Johnson, Adr., v.- Dexter, 37 Yt. 641.</p> <p>We claim that under the will the legal title was in Lewis B. Dow. Tbe gift is absolute in its terms, and a subsequent clause repugnant thereto is void. If we are right on this point then the mortgage is valid without doubt. But if the court should think that the legal title, by the terms of the will, was in Morse, the executor, then we claim the mortgage valid.</p> <p>It is certain that the trustee and the cestui que trust together could mortgage or. convey the premises. Pownal v. Myres, 16 Yt. 414; Flint v. Steadman, 36 Vt. 211.</p> <p>That is, the trustee, with the consent of the cestui que trust, could convey.</p> <p>The act must be the act of both.</p> <p>Certainly Hannah Barnes is not entitled to any consideration so far as Hodges’ rights are concerned; for she signed the mortgage, and thereby induced and led Hodges to part with his money when he otherwise would not. It seems to us that the principle that where one of two persons must suffer that one must bear the loss who was in fault, may, in this view, apply.</p> <p>Relief is granted not only against the original parties to the contract, but against all claiming under them in privity, heirs, devisees, etc. Adams Eq. s. 168, n. 2 : Beardsley v. Knight, . 10 Yt. 185.</p> <p>Equity will grant relief when both parties intended to have an instrument prepared in one form, and by means of some omission it was prepared in another. Adams Eq. s. 170 ;— omission to affix a seal to a bond. Rutland v. Paige, 24 Vt: 181; — or omission to make a bond payable to the obligor’s assignees. Smith v. Wainright, 24 Yt. 97, 111.</p> <p>Equity often grants relief against pure mistakes of law. 1 Story Eq. ss. T21, 118, 138, and note.</p> <p>Morse and Mrs. Barnes are estopped. Bigelow Est. 434.</p> <p>Whether the instrument is strictly a mortgage or not, it is an appropriation of the real estate for the payment of this debt of Hodges ; and courts of equity will carry out the intention of the parties by making the property holdcn. Frary v, Booth, 37 Vt. 89, 90.</p> <p>The debts due from the Barnes estate were, of course, a first claim, and stood prior to the rights of Dow or Hannah Barnes.</p> <p>In the same claim also must stand the expenses of carrying on the farm and the support of Hannah Barnes.</p> <p>This money of Hodges went to pay these claims.</p>

<p> Criminal Law. Breach of the Peace. Pleading. R. L. s. 4228. </p> <p>1. A count in an indictment under the statute, — R. L. s. 422S, — is sufficient, which charges that the respondent “ quarreled with the said * * * by cursing and swearing at the said * * * and by calling him opprobrious names, * * * which carriage of »' * * had the effect * * * to disturb the public peace,” although there was no allegation of intent. ,</p> <p>2. X’mádisíg. The statute provides that a person who “disturbs or breaks the public peace by tumultuous and offensive carriage,” etc., shall be punished, etc. The sufficiency of a count which merely charged that the respondent broke the public peace “by his tumultuous carriage” is doubted.</p> <p>3. A charge as to what constitutes a breach of the peace, — q. -y. — is sustained.</p>

Trespass and trover brought to recover for property claimed to be the sole and separate' property of the plaintiff wife, which was sold by the defendant, as sheriff, on an execution against the plaintiff, Lorenzo. Trial by jury, December Term, Windsor County, 1885, Taet, J., presiding. Verdict for the plaintiffs;

Aiteal from tlie decision of the judge of the Court of Insolvency for the District of Windsor. Heard, May Term, 1886, Taet, J., presiding. It was plainly the intention of the legislature, by'the provisions of sections 1862, 1863, and 1864, to give ample opportunity for á fair trial of the questions of law and fact which were sure to arise in such cases.

Bill in Chancery. Heard on bill and answer, December Term, 1886, Rowell, Chancellor.

Bill in ChaNOERY. Heard on a special master’s report, September Term, 1886, Taft, Chancellor.

GeNeeal Assumpsit, with a count for use and occupation. Plea, general issue. Trial by court, September Term, 1886, Taut, J., .presiding. Judgment for the defendant.

Hoard on a referee’s report, September Term, 1886, Chittenden County, PowEits, J., presiding. Judgment for the plaintiff to recover on item No. 22 the sum of $120.50 ; on item No. 31 the sum of $99.45 ; that the defendant be disallowed item No. 23, the charge of $16.68 for sawing 4,170 feet; and that it be allowed only $2 per thousand feet for sawing lumber charged in Nos. 24, 25, 26, 29, 31, 32, deducting $38.35.

Assumpsit. Heard on demurrer to the fourth count in tho declaration, February Term, 1885, Ross, J., presiding. Demurrer sustained. The case appears in the opinion. The count sets out the contract as inducement only. The gist of the action is the recovery of one-half of the $14,000 due from Robinson to Angus and Goff, and one-half the par value of the bonds deposited as security.

INFORMATION filed against the respondent for peddling ivith-out a license. Heard on agreed statement, September Term, 1885, Ross, J., presiding. The respondent was adjudged guilty. The statute in question is unconstitutional; because, 1. It assumes the power to “regulate commerce among the states 2.

<p>Appeal from the Court of Insolvency to the Court of Chancery by Hirshkind & Co., a creditor, on the .question of the discharge of the insolvent debtors, Howard & Leavitt. Heard on a master’s report, February Term, 1887, Royce, Chancellor. Ordered that the appeal be dismissed and a discharge granted to the insolvent debtors, and that the case be certified back to the Court of Insolvency.</p> <p>Hirshkind & Co. objected to the granting of the discharge for the reason that the insolvent debtors, being merchants and doing-business as co-partners, did not, in the course of their co-partnership business, keep proper books of account. The master reported no part of the evidence, but certain facts; as that Howard & Leavitt entered into a co-partnership to deal in general merchandise; that after about one year they were burned out and ceased doing business; that they were regularly adjudged insolvent debtors ; that they professed to do a cash business, but gave a short credit where persons were perfectly good; that they kept no. books, except “ each day’s sales were kept on slips of paper, and at night the cash received during the day was added up and entered upon a book called the ‘ Sales and Cash Boole,’ and those slips upon which entries of goods sold upon credit were made, were put on file,” etc.</p> <p>It was the duty of the debtors to keep proper books of account. Hammond v. Gooledge, 3 B. R. 71; In re Solomon, 2 B. R. 94; In re Littlefield, 3 B. R. 13 ; 3 B. R. 94. Their books should show, in an intelligible manner, the nature and. character of their receipts and disbursements. In re Murdoch, 4 B. R. 17 ; In re McKay, 4 B. R. 66. A merchant’s books must show a true account of his standing at the date of his insolvency. In re Garrison, 7 B. R. 287 ; In re Archenbrown, 12 B. R. 17. The statute lays down an arbitrary command that no discharge shall be gi-anted unless such books have been kept. Cases, supra.</p> <p>If the books of the debtors will show their financial standing they are entitled to a discharge* Bump Bankruptcy, 711; In re Keach, 3 B. R. 13 ; In re Gray, 2 B. R. 358. If books be - kept by a firm, the law presumes they are kept in regular form. In re Marie Ranks, 1 N. Y. Leg. Obs. 274; Bump (9th ed.) 713. It is a question of fact whether the books are such as will give to a competent person examining them a knowledge of the true state of the bankrupt’s affairs. The report does not show that improper books were kept. In re George Proctor, Lowell, 409; In re Shampevt, 8 B. R. 415 ; In re Reed, 12 B. R. 390. A discharge will not be refused for not keeping proper books, without full evidence of the facts, and their bearing upon the business. In re Batchel-der, 3 B. R. 150.</p>

<p>Fraud. Accident or Mistake. /Statute, — B. L. s. 1426. Appeal from Decree of Probate Court.</p> <p>Under tbe statute, — It. L. s. 1426, — affording relief to' one who has been prevented from taking an appeal by fraud, accident or místate, a widow, living in another state, where her husband deceased, leaving an estate there and also a farm in this State, occupied by his parents, and his mother having a life lease of it, is entitled to an appeal from the decision of the Probate Court, allowing a claim against the estate, when the widow did not know that administration had been taken here, and she was not wanting in reasonable diligence and was justified in supposing that nothing was necessary to be done to protect her interest; and this on the ground that there was a mistake within the meaning of the statute.</p>

Bill in ChaNCery. Heard on the orator’s motion that the officer, who served the original bill, have leave to amend his return of service, February Term, 1887, Royce, Chancellor. Motion granted, and appeal by the defendants. The case is stated in the opinion.

Bill of interpleader.. Heard on the pleadings and a special master’s report, March Term, 1887, Yeazey, Chancellor. The whole fund in controyefsy, except the note signed by Levi W. Seaver, was decreed to the defendant Hattie Y. Adams, and the said Levi W. Seaver note was decreed to the defendant' Folsom. The case is stated in the opinion.

INDICTMENT under section 4246, E. L., charging the respondent with having sexual intercourse with one Minnie C. Dana, the daughter of a brother of said respondent. Trial by jury, September Term, 1886, Powers, J., presiding. Verdict, guilty. The said Minnie C. Dana was the principal witness against .the respondent'.

Bill to foreclose a mortgage. Heard on the pleadings and a special master’s report, September Term, 1886, Powions, Chancellor. The decree was that the petitioner have a foreclosure as prayed for, with the usual time of redemption. The master found, that one Creo. H. Wells on February 9, 1874, gave the note in question to the trustee of the IT.

<p> Trespass and Trover, Joinder of. Pleading. R. L. s. 912. Misjoinder. Demurrer. </p> <p>A count In trespass joined with a count in trover is bad on demurrer, unless it appears irom the declaration that they are for the same cause of action; thus, where thp count in trespass alleged that the defendant broke and entered the plaintiff’s close and cut down and carried away 3,000 spruce trees, 1,000 hemlock trees and 1,000 other trees, and the count in trover alleged that the defendant converted to his own use 250,000 feet of spruce lumber and 10,000 feet of hemlock lumber, etc., possessed by the plaintiff'; Held, to bo a mis-joinder.</p>

GeNeral Assumpsit. Heard on general demurrer, September Term, 1886, Powers, J., presiding. Judgment that the declaration is insufficient, and that the demurrer be sustained. The defendants wore set up in the writ as husband and wife. cited Holmes v. Reynolds, 55 Yt. 39 ; E. L. s. 2321; Acts of 1884, No. 140. Our statutes liave not varied tbe common law as to a married woman’s capacity in making a contract, except in specific cases.

Eoad PetitioN brought under section 2969, E. L. Heard on the report of commissioners, September Term, 1886, Powers, J:, presiding. Judgment that the commissioners had no power, under a petition framed as this one was, to award that Calais should bear any part of the expense of building the road lying in East Montpelier. Exceptions by East Montpelier.

<p> Soldier. Extra State pay of §7per month. Seaman. Mandamus. State Treasurer. </p> <p>A seaman in the U. S. naval service, during the war of the rebellion was not entitled under the statutes to the extra state pay of $7 per month, even though he first enlisted into the military service and was credited on the quota of this State, and afterwards, under an act of Congress, voluntarily enlisted into the navy. No one hut a soldier in the military service of the United States was entitled lo such pay.</p>

<p>Assumpsit. Trial by court, September Term, 1886, Powmits, J., presiding. Judgment for the plaintiff.</p> <p>It appeared that the plaintiff was one of the executors of the will oí T. J. Hubbard ; that he had been in the management of the estate for some years, ivas entitled as legatee under the will to one-third of the net income from the estate and the defendant to the other two-thirds, after deducting some small legacies ; that plaintiff filed his account as executor for the year ending August 1, 1885, in the Probate Court, and before the same was passed on by the court, proposed to the defendant, as he, the plaintiff, was getting old, to resign and make no objection to the appointment of the defendant an administrator de bonis non with the will annexed ; but before this was done he wanted it fixed in some way so that he should receive a fixed sum each year under the will; and accordingly the parties by mutual consent submitted the same to arbitration, .and an award ivas made in the premises, of which the following is a copy :</p> <p>“ The undersigned having considered the matter submitted to us by E. P. Jewett of the one part and E. J. Dietur of the other part, as to the sum and amount the said Jewett shall have from the estate of Timothy J. Hubbard, deceased, yearly for one-third of the income of the property of said estate during the lifetime of the said Jewett, as provided in the last will of the said Hubbard, to decide and award ; that said Jewett shall have and receive and be paid from said estate each and every year of the lifetime of said Jewett the sum of $400 and in that proportion for any fractional part of a year, the first payment thereof to be made on the first day of August, A. D. 1886, and thereafter on the first day of August each year for the term and period aforesaid. „</p> <p>“ Dated at Montpelier this seventh day of September, A. D. 1885.”</p> <p>On September 28, 1885, the plaintiff signed a writing under seal, of which the following is a copy :</p> <p>‘ ‘ In consideration of $400 to be paid me according to the aforesaid award and of the purchase from the executors of the lands owned by the estate of T. J. Hubbard in Waterville, Eden and Belvidere in the County of Lamoille by the said E. J. Dietur, I hereby for myself aiid my heirs and assigns covenant and agree to abide by said award, and do hereby sell, assign and transfer to the said E. J. Dietur all my interest in and to and under the will of the said T. J. Hubbard except the sum of four hundred dollars to be paid me annually as provided by the aforesaid award.”</p> <p>It was conceded that in 1885 the plaintiff repaired some tenements in the brick block in Montpelier owned by the estate at an expense of $1,500 or $1,600 whereby the rental of that property was increased in the sum of $225, and that this expense had been paid from the income of the estate. The plaintiff’s evidence tended to show that as part of the settlement above referred to the defendant, in view of the fact that he was to receive all the income of the estate after August 1st, 1885, and the repairs aforesaid were to enure to the defendant’s benefit, .he agreed to pay the plaintiff $400, to make up the loss of income the plaintiff had suffered prior to August 1st, 1885, by reason of making such repairs ; that this sum, though less than one-third of such repairs, was agreed upon and in consid-oration of the terms of the settlement aforesaid and as part of it the defendant promised to pay him this sum. The defendant conceded that it was agreed that the plaintiff should be paid this sum, but claimed it was to be paid by the estate and not by him individually.</p> <p>The court found the agreement as ’ claimed by the plaintiff. The court ruled that the division of income earned prior to August 1, 1885, should be made under the provisions of the will, and after that date the award was to be operative. The defendant claimed'that the agreement of September 28th could not be disputed by parol proof; that the plaintiff’s evidence tending to show the agreement to pay the |400 on account of the repairs was not admissible ; but the court ruled otherwise.</p>

ActioN OK COVENANT. Plea, general' issue and notice. Trial by court, March Term, 1886, Veazey, J., presiding. Judgment for the defendant.

Bill in Chancery. Heal’d on the pleadings and a special master’s .report, March Term, 1887, Veazey, Chancellor. Decree that the orator recover $195.80, it being for the value of one undivided half of the hotel furniture at the time it was purchased by the orator, and for the use of the same at the rate of $50 per year, and interest. The case appears in the opinion. A sale will not be ordered if the property can be divided.

Assumpsit brought by the plaintiff, administrator of the estate of Chauncey Gourley, to recover for property bid off by the defendant at an auction sale of the property of the estate of said Chauncey. Heard on a referee’s report, September Term, 1886, Powers, J., presiding. Judgment for the plaintiff to recover the sum of $249.41. The defendant presented a claim in set-off for the expenses incurred in the last sickness of his mother-in-law, Mrs. Lattis Gourley.

INDICTMENT for a breach of the peace. Heard on demurrer to the respondent’s plea, September Term, 1886, Powers, J., presiding.

Rbi’LeviN for a cooking stove, stove pipe, etc., brought before a juscice of the peace, and appealed by the plaintiff. Heard on the defendant’s motion to dismiss, September Term, 1886, Powers, J., presiding. The motion to dismiss was put upon the ground that neither the ad damnum in the writ, nor the sum demanded by the declaration, nor the amount of the property in demand, exceeded the sum of $20, and that the action was not an action of trespass on the freehold.

Assumpsit. Trial by court, June Term, 1886, Rowell, J., presiding. Judgment for the defendant.

ComplaiNT by a private prosecutrix for a breach of the peace. Heard on a motion to quash, December Term, 1886, Walker, J., presiding. The cause was a complaint of a private prosecutrix before a justice, and came to the County Court on appeal.

Assumpsit brought by the plaintiffs, the executors of P. S. Benjamin’s will. Trial by jury, December Term, 1886, Powebs, J., presiding. The court ruled that the list was not such' as the law required, and.that the plaintiffs were entitled to recover the amount of the town tax and interest, but not in this action the amount of the state and state school and highway taxes, and directed the jury to return a .verdict for $297.27 for the plaintiffs.

Trespass on the freehold. Plea, general issue, April Term, 1887, Taet, J., presiding. Yerdict and judgment for the plaintiff. The case appears in the opinion. The evidence was admissible to show a submission to the fence viewers acting as a board of arbitrators. White v. Everest, 1 Yt. 181. It was clearly admissible as-bearing on the question of exemplary damages. Devine v.. Rand, 38 Yt. 621; Pierce v. Iloffman, 24 Yt. 525 ; 1 Greenl.

Teustee Peocess. Heard on the report of a commissioner, April Term, 1887, Taft, J., presiding. Judgment that the trustee was chargeable for $50 and interest, being the amount of a promissory note.

ActioN on the statute, R. L. s. 3372. Heard on an agreed statement, December Term, 1886, Ross, J., presiding. Judgment pro forma for the defendant. The case appears in the opinion. The state of New York has a statute similar to section 3372, R. L. of this State. N. Y. Session Laws, Chap. 312, 1885. The defendant was subject to the jurisdiction of this court. Richardson v. R. R. Co. 44 Vt. 613. The action should be sustained. Chase v. Houghton, 16 Yt. 594.

Petition to foreclose a mortgage. Heard on the pleadings and a special master’s report, April Term, 1886, Taft, Chancellor. Ordered that a decree of foreclosure pass for the petitioner; that there should be allowed him the sum $355.24, with interest from April 6, 1886 ; and that there should be' deducted the amount of the two tenders with interest thereon.

<p> Witness. H. L. s. 1003. Trover. Legatee. </p> <p>In an action oí trover for the conversion of personal property, where the defendant claimed to derive title to it as legatee under his father’s will, the plaintiff, claiming to have bought it of another party and left it with the testator merely for his use, is a witness in this respect in his own behalf.</p>

General and special assumpsit by the plaintiff, as surviving partner of the late firm of J. & H. Rowell, with a count in favor of the plaintiff upon a promissory note owned by him in bis own right. Appeal from the disallowance of commissioners. Pleas, general issue, payment, Statute of Limitations and offset, with notice denying the signature to paper “A.” Trial by jury, February Term, Royce, Ch. J., presiding. Verdict for -the' defendant.