Volume 60 — Vermont Reports

[IN CHANCERY.] IN CiiaNCbry. Petition of certain depositors of the St. Al-bans Trust Company, to obtain an order of preference. Hoard on the pleadings and the report of a special master, September Term, 1886, Franklin County. Royce, Chancellor. Decree that the petition be dismissed. Affirmed.

Petition to foreclose a mortgage. Heard on petition, answer and amended answer, traverse to the answers, and the report of a master and exceptions thereto, at the December Term, Windsor County, 1886, Rowell, Chancellor. Exceptions overruled; report of master accepted and confirmed; petition dismissed; exceptions by petitioners. The condition in the mortgage is set out in the opinion.

TRESPASS on the case. Plea, general issue. Trial by court, September Term, 1886, Chittenden County, Taet, J., presiding. Judgment for the plaintiff. Reversed. The case appears in the opinion. There is no other contract or obligation between the State and a municipal corporation accepting a charter than such as the charter implies.. Dill. Mun. Corp. ss. 965, 980, 1000, 1018.

TRESPASS quare clausum fregit. Trial by jury, February Term, 1886, Orleans County, Eoss, J., presiding. Judgment on a special verdict for the plaintiff. Affirmed. The Newport & Eichford Eailroad runs across the premises /in question, and along and near Lake Memphremagog.

Assumpsit on a promissory note given for $4,000 by the Dorset Marble Company, dated July 21, 1883,. payable in five months after date at the National Bank of Eutland, Vermont, to the order of J. B. Hollister, treasurer of said company, and indorsed by J. B. Hollister, treasurer, E. J. Hawley, the defendant, and J. B. Page, and numbered 445 by said company. Plea, general issue and notice. Trial by court, September Term, 1886, Eutland County, Veazey, J., presiding.

Bill to foreclose an equitable lien. Heard on the pleadings and the report of a special master,' February Term, Orleans County, Veazey, Chancellor. Decree that the bill be dismissed. Affirmed. The defendants were Hiram Putnam, Sarah B. Farr, J. P. Lamson, and Mrs. J. P. Lamson. On January 9, 1877, the orator, being a son of Hyrcanus Farr, was appointed his guardian by the Probate Court, and he remained such until the death of said Hyrcanus, August 17, 1878.

Scire Facias on a recognizance. Heard on demurrer to the declaration, December Term, 1886, Orange County, Walker, J., presiding. Demurrer overruled and declaration held sufficient. Affirmed.

Case for flowing the plaintiff’s land above the defendant’s mill-site on the same stream. Trial bj jury, Orange County, June Term, 1886, Rowell, .J.,. presiding.. Verdict for the plaintiff to recover $40.00 damages.

Trespass quare clausum and trover. Heard on a referee’s report, Caledonia County Court, December Term, 1886, Powers, J., presiding. Judgment pro forma for the plaintiff. No question was made about the title of Ann E. Kane’s estate to some five and a half lots in the town of Newark.

INDICTMENT charging respondent with having been found in bed with another man’s wife, etc. Trial by jury, September-Term, 1886, Washington County, Powers J., presiding. Verdict, guilty. Indictment quashed. The respondent demurred to the indictment; but the court overruled the demurrer, and ordered him to plead without prejudice to the exception.

<p> Covenant of Warranty, When it Runs With the Land. </p> <p>1. Evidence. Possession. The payment of taxes assessed on land is neither an act of possession nor evidence of a possessory title.</p> <p>2. Amendment. A declaration counting upon covenants of seizin and right to convey may be amended by a declaration upon the covenant of warranty; for it is only a different description of the original cause of action.</p> <p>3. Practice. Under a reference, it is immaterial when an amendment of pleadings is made.</p> <p>4. A Covenant Huns With the Land. A covenant of warranty runs with the land as an incident to it, although the grantor had neither the legal title nor the possession, when all the grantees have had possession; and the last grantee, who holds through several mesne conveyances, and who was evicted, can maintain an action based upon such covenant.</p> <p>5. Practice. Stating Execution. And, if in such case the grantor is liable to two actions, — one in favor of his grantee for a breach of the covenant of seizin, and another to his grantee’s assignee upon that of warranty, the court can protect his rights by attaching conditions to the judgment, or staying execution.</p> <p>6. Transitory Action. An action for breach of covenant of warranty in a deed of land under our statute, is transitory; and the courts of this State, when the grantor resides here, have jurisdiction, although the land is located in an other state.</p> <p>7. Evidence. There was no error in allowing a surveyor in testifying to use a plan of the lands in contention, although it was in part a copy of the government survey.</p> <p>8. Declarations oe Party Evicted. The declarations of the party who evicted the plaintiff, and also of his workmen cutting timber on the land, were admissible to show an eviction.</p> <p>9. Damages. Lex Loci Kei Sitae Governs. In an action for breach of covenant of warranty, whei-e the grantor resided in Vermont, the grantee in New Hampshire, and the land was situated in Minnesota, the construction of the contract, including the rule as to damages, is governed by the law of the place where the land is situated; and, although the plaintiff was-entitled to a judgment, yet, the referee havlngfailed to find, as a fact, what that law is, the court declined to presume that it was the same as the law of this State, and recommitted the case for the court below to determine the damages according to the above rule.</p> <p>10. Deed, "Wiee oe Grantee “Witness to. The plaintiff’s wiie was a witness to the deed; by the law oí Minnesota she was competent and could be examined with the consent oí her husband; the deed was not objected to on the ground that it was defectively executed; Held, that the deed was legitimate evidence to show an assignment oí the land to the plaintiff; and quaere . whether a deed defectively executed is not good between the parties.</p>

<p>Appeal from the Probate Court. Heard by the court, March Term, 1886, Washington County, Powees, J., presiding. The contention was as to the construction of a certain clause in the will of Justus W. Shepard, which clause is stated in the opinion of the court. The court decided that the meaning of said will was clear and not ambiguous, and that upon the death of the said J. W. Shepard, the said Betsey Martin, Catherine Shepard and Calista Shepard each were entitled to one-fourth part of said estate in fee, and that Elizabeth Powell, the child of Elavilla Batehelder, deceased, was entitled to the other fourth part of said estate in fee.</p> <p>Appeal by both parties.'</p> <p>The testator left no widow, never having been married. On the part of the children of Betsey Martin, evidence was offered to prove, that very great enmity existed, when the will was made and afterwards, between the testator and his brother, Prentiss M. Shepard; that the testator informed his other relatives and friends that none of his property should ever go to his brother; and also to prove that at the time of the making of said will the said Catherine and Calista Shepard had no children, and they each had arrived at such an age that there was then no probability that either of them would ever have any children. The court excluded this evidence.</p> <p>Evidence was also offered to show that after the decease of J. W. Shepard the will was duly probated and established, and one-fourth of said estate was decreed to Elizabeth Powell, the sole daughter and representative of Flavilla Batchelder, and was paid over to her at that time. That the Probate Court at the same time decreed that the shares of Catherine and Calista Shepard and Betsey Martin were subject to the condition in said will, and that it was necessary to appoint a trustee to hold property under the will and the court then and there appointed Willard S. Martin said trustee, who has ever since managed the fund and paid the interest over to each of the legatees annually, and after the decease of Catherine Shepard the interest on one-half of Catherine’s share of the fund was paid over to Betsey Martin and the other half to Calista Shepard annually by the trustee and his account settled in the Probate Court annually; from all which no appeal was ever taken.</p> <p>That at the time of the settlement of said estate there was placed in the hands of Willard S. Martin, trustee, the sum of $12,635.58, and that the interest on said fund, or income thereof, has been paid over as aforesaid.</p> <p>The Pi’obate Court decided that on the decease of Catherine Shepard, that her share descended in fee in equal shares to Betsey Martin and Calista Shepard, and that on the decease of Calista Shepard, that portion which she so received from the share of Catherine Shepard descended and became a part of her estate to be distributed according to law.</p> <p>That the portion or share of Calista Shepard originally under the will, she having deceased leaving no children, be divided equally among the children of Betsey Martin and Flavilla Batch-elder, and that the representatives of any deceased child should receive such deceased child’s share.</p> <p>The County Court decided that the evidence offered was immaterial, irrelevant and excluded the same.</p> <p>1. Said Calista, having survived the testator, took an estate in fee. The words, " dying without children,” by all rules of law, refer to dying in the life of the testator and cannot have reference to any other time.</p> <p>That the testator intended his property should be divided between the sisters and their children living at his death, is already shown by the words of the will. He gives the fund to his sisters; makes no provision for a trustee to manage the fund and pay them the interest but gives it directly to them and their children.</p> <p>It would be absurd to say the testator did not mean by his will, to benefit his sisters while they lived. If he had intended what the other side now claims, he would have had a trustee appointed to manage the fund and pay the interest annually to his sisters.</p> <p>2. Parol evidence was not admissible. The ruling of the court below was correct. 1 Jar. Wills, p. 409 (top p. 708 ;) Wells v. Wells, 37 Yt. 483 ; Button v. Tract Society, 23 Vt. 337; Mann v. Mann, 1 Johns. Ch. 231; Cheeney’s Case, 5 Co. 68; Lord Walpole v. Lord Ohalmandelly, 7.Term, 138; Ilawnan v. Thomas, 44 Md. 30; Brown v. Pembroke, 6 Cen. Rep. 603 ; 6 Wait Act. & Def. 386.</p> <p>3. The estate of Betsey Martin was different from the estate of Calista Shepard. By the will one-fourth of the testator’s estate was given to Betsey Martin and her children forever. This gave Betsey Martin either a life estate with the reversion to her children, or it gave to the mother one-sixth and to each of her five children one-sixth of said one-fourth in fee on the death of the testator, as tenants in common. The children being referred to in said will took some interest under it. Lord Bindon v. The Earl of Suffolk, 1 "Will. P. 96 (1707) ; Buford v. Bradford, 2 Atk. 220; Gannon v. Ajpjpersón, 13 Lea, (Term) 550. The only object in referring to this question was to show that the will was not to the sisters as a class.</p> <p>4. The law sustains the common sense view of the case. " When the bequest is simply to A, and in case of his death, or if he die, to B, A surviving the testator takes absolutely.” 3 Jar. Wills, (ed. 1881) ; 2 Id. 602, 752 ; Lawfield v. Stone-ham., 2 Str. 1261; Webster v. Hale, 8 Yes. 410; Ommany v. Bevan, 18 Yes. 292 ; Wright v. Stevens, 4 Barn. Aid. 574; King v. Taylor, 5 Ves. 806; Howard v. Howard, 21 Beav. 550 ; Slade v. Milner, 4 Mod. 144. In Hinckley v. Simmons, 4 Yes. where a bequest of all the testator’s fortune was to A, and in case of his death to B, it was held to confer an absolute interest on A surviving the testator. Olayton v. Low, 5 Barn. & Aid. is on all fours with the case at bar, substituting grandchildren for children. See to the same point, Woodburn v. Woodburn, 23 L. J. Ch. 339 ; In re Austin, 3 Beav. 135; Fahency v. Holsinger, 65 Penn. St. 388 ; Johnson v. Antro-bus, 21 Beav. 556.</p> <p>A bequest to A with limitation over in case A should die without leaving issue, vests the sum given absolutely in A if he is alive when the distribution was made and the gift over in such a case will only take effect of A’s death before the testator. Davis v. Davis, 3 N. J. Eq. 163 ; see Burrell v. Burrell, 38 N. J. Eq. 60; Jamson v. Oravour, 4 Del. 311; Whithead v. Stoddard, 58 Yt. 623; Mitchell v. Morse, 1 East. Eep. 603 ; 3 Jar. Wills, p. 2, vol. 770; 2 Meyl & E. 69 ; 2 E. & M. 197, 210; Heivton v. Reed, Sim. 141; Cambridge v. Rouse, 4 Yes. 12. Courts favor vested estates. 1 Jar. Wills, 351; Southward v. Corners, 143 Mass. 189 ; Cochin’s Appeal, 1 Cen. Eep. (Penn.) 890; Quackenbos v. Kingsland, 2 Cen. Eep. 918; Green v. Wilbur, 1 New Eng. Eep. 815; Hindman’s Appeal, 21 Eeporter, 569 ; Richardson’s Appeal, 8 East. Eep. (Penn.) '722; Shaio v. Ford, 13 Eng. Eep. Ch. Div. 796 ; Merrill v. Rmery, 10 Pick. 507.</p> <p>"The ordinary presumption is that all devisees and bequests vest upon the death of the testator; and there is nothing in the provision of this will to control that presumption.” Gray, Ch. J., in Pilce v. Stephenson, 99 Mass. 188. See Clafflin v. Tilton, 141 Mass. 243.</p> <p>5. ' But if we are wrong in claiming that the words "dying without children,” referred to dying in the life of the testator, it created an estate tail, and the fund being personal property vested absolutely in, the first taker and the limitation over was void. 2 Preston Est. 85, 261, 355 ; Crocks v. He Vcindes, 9 Yes. 195 ; Peck, J., in Brattleboro v. Mead, 42 Yt. 556 ; Attorney- General v. Hird, 1 Bro. Ch. 171; Hall v. Priest, 72 Mass. 18 ; Bigge v. Bentley, 1 Bro. Ch. 187; 3 East 84; 2 E. & M. 55, 378 ; Daintry v. Daintry, 7 Term, 307 ; Williamson v. Daniel, 12 Wheat. 568 ; 7 Curtis, 392.</p> <p>6.- The property either vested in Calista on the death of the testator, or on the death of Calista it lapsed and became a part of the testator’s estate, as there was no sister living to take on the death of Calista.</p> <p>7. If the fund is to go to the children of the sisters they take, per stirpes. Church v. Church, 1 New Eng. Eep. 485 ; Gaines v. Strong, 40 Yt. 354; Heath v. Bancroft, 15 Eeporter (Conn.) 461; Perry v. White, 2 Conn. 777; Van Herrick v. Dutch Church, 20 Wend. 457; Bove v. Mix, 17 Wend. 119; Putnam v. Gleason, 99 Mass. 454; Willis v. Douglas, 10 Beav. 47 ; Arrow v. Méllish, De G. J. & S. 355 ; Stoughtenburg v. Moore, 37 N. J. Eq. 63; Vreeland v. Van Hyper, 11 N. J. Eq. 133 ; Woolson v. Beck, 34 N. J. Eq. 74; Patrick v. Royce, 13 Q. B. 100; 2 Jar. Wills, 19; Thomas v. Thomas, 6 Term, 671. The case of Stowell v. Hastings, 59 Yt. 494, seems to be nearly like the one at bar. So the case of Coe'v. James, 4 New Eng. Rep. 591, is a strong-case for the plaintiffs. The plaintiffs cited in answer to the defendant’s brief, the following: Hiscoclc v. Hiscoch, 5 M. & W. 365 ; Child y. Gibbert, 5 M. & R. 71; Gee v. City of Manchester, 17 Q. B. 73'7 ; 1 Jar. Wills, 437 ; 2 lb. 786 ; Clayton v. Hora, 5 Barn. & Aid. 636 ; Herring v. Barrows, 37 Eng. Rep. 26 n.; Smith v. Bell, 6 Pet. 68 ; Bloomfield v; Byre, 54 E. C. L. 556; Wescott v. Cady, 5 Johns. Ch. 334; Hart v. Thompson, 3 Mon. B. 242; Moore v. Howe, Mon. T. B. 199 ; 3 Gray, 150 ; Vedder v. Bvertston, 3 Paige, Ch. 281 ; Cross y. Maltby, 12 Eng. Rep. 20; Waite v. Littlewood, 4 Eng. Ch. App. Rep. 70.</p> <p>The testator first gives his entire property to his four sistei’s and their children forever, with a condition. It is obvious that the testator intended that if any of his sisters should die childless, in that event her share should be divided among the other sisters and their children, and so on; so that ultimately the children of his sisters as a class should take the propei’ty after his sisters should all die. It is a primary rule of construction that a written instrument shall be so construed as to give effect to all its words if possible. In no other way can this will be construed and have the words “ as aforesaid ” mean anything. These words mean, if any of the sisters die leaving no children that such sister’s share, so deceased, shall be divided among the other sisters and their children equally, the same as the original gift was divided; that is, — according to the first division. It is evident, also, that each of the sisters would hold any portion received from a deceased sister the same as the portion they received directly and with the same condition attached to it.</p> <p>The parol evidence was admissible. 1 Jar. Wills, 422.</p> <p>If the will is construed as the plaintiffs claim, the- condition does not take effect, and is void. “ The general rule is that when the context is silent, the words referring to the death of the prior legatee, in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator.” 2 Jar. Wills, 784 ; Farthing v. Allen, 2 Mad. 316 ; 5 New Eng. Rep. 61. In construing a will, there is no distinction between real estate and personal property. 1 Jar. Wills, 879 ; Moffatt v. Strong, 10 Johns, 12; Wescoi v. Oady, 5 Johns. Ch. 334; Greggs v. Dodge, 2 Day, 28 ; Mc-Oloshy v. Gleason, 56 Yt. 264.</p> <p>The sisters took only life estates, with remainder over to their children. Hart v. Thompson, 3 Mon. B. 242; Moore v. Howe, 4 Mon. T. B. 199; Attorney-General v. Wallac'e’s Devisees, 7 Mon. B. 611; Fx parte, Rogers, 2 Mad. 449; Smith v. Bell, 6 Pet. 68; Blake v. Hawkins, 8 Otto, 324; Roe v. Jeffrey, 7 Term, 589; 3 Gray, 150; 3 Paige,'381. The court in this State has adopted this doctrine. McOlosky v. Gleason, 56 Yt. 264. See Harmon v. Dickinson, 1 Bro. Ch. 91; Child v. Giblet, 2 M. & K. 71; Cooper v. Cooper, 1 Kay & Johns. 658.</p> <p>It might at first view seem inconsistent to hold that the share of Calista Shepard,'she having died last without children, should go to her sister’s children, when the will says “ to the other sisters living ;” but it means it to go to the other sisters living, as aforesaid, which is in the same manner as the gift in the first, instance, which included the children. Rowell v. Josselyn, 59 Yt. 557 ; 18 Wall, 498; Cross v. Maltby, 15 Eng. Rep. 384; Wait v. Liitlewood, 4 Eng. Rep. 760; S. C. L. R. Ch. 70; ■ Wake v. Varah, 16 Eng. Rep. 781; S. C. 2 Ch. Div. 348; 2 Jar. Wills. 727, 751.</p>

<p> Railroad. Higlmay Grossing. R. L. s. 3383. </p> <p>1. Jurisdiction. All action at law|based upon section 3383, R. L., can be maintained against tbe receiver of a railroad company for negligence in constructing a crossing, although leave was not obtained of the Court of Chancery to bring it.</p> <p>2. Crossing, Liability or Railroad to Town. The railroad company of which the defendant was receiver being empowered under its charter to build its railroad across highways, provided it restored them as near as practicable to their former state and usefulness, to the acceptance of the selectmen, or in case of their refusal, to the acceptance of the commissioners, constructed its railroad across a highway in the plaintiff town, but neglected to restore it to its former usefulness, and left it defective through failure to put railings along the approaches constituting a part of the crossing. After the charter had been granted and tbe railroad built, a statute was passed, making railroad companies liable to towns for damages resulting from insufficient crossings. In an action to recover the amount of a judgment and the expenses attending it, which had been rendered against the plaintiff in favor of a traveller for injuries occasioned through want of said railings; IIeld, that the company failed in its primary duty; that its liability became established by the facts that it failed to restore the highway as the charter provided, and that the crossing; had never been accepted; and if the approaches extended beyond the surveyed limits of the railroad and railings were required, it was the duty of the company to build them.</p> <p>3. Charter. Statute. Although the charter was exempt from amendment and repeal, it was unnecessary to decide whether there was error in the charge to the jury, that the statute on which the action was based, was controlling; for the right of action upon the facts existed in any event; anda wrong reason for a correct decision is not reversible error.</p> <p>4. Duty or Railroad in Building a Crossing. The general rule is that where a railroad company is authorized to cross highways, it is under a duty to construct its road across them in a reasonable manner with reference to the double use of crossing for its own purpose, and for travellers, and that the right is subject to the maxim, Sic utere tno ut álienum non Imdas.</p> <p>5. Statute oe Limitations. The defendant cannot protect itself, against tlie liability on the ground that the Statute of Limitations would bar an action for the original obstruction; for the obligation and the negligence were continuing.</p> <p>6. CROSSINO. The word “ crossing,” as used in the statute and applied to the intersection of a highway and a railroad, means the entire structure, including the approaches, although a part may be outside the limits of the railroad lands.</p> <p>7. Estoppel. The doctrine of estoppel does not apply; as it does not appear that the railroad company was misled in reliance upon the action of the town, or knew what the town did in making repairs on the approaches.</p> <p>8. PRACTICE. The Supreme Court cannot find or infer a waiver of acceptance of the crossing, from the slight repairs made by the town on the travelled track of the fill, when the jury found that neither the selectmen nor commissioners accepted it.</p>

Indictment for arson. Heard on motion to quash and demurrer to plea in abatement, filed December Term, 1886, at the May Term, 1887, Caledonia County, Powers, J.,presiding. Motion overruled and demurrer sustained. The cause was passed to the Supreme Court under section 1390, R. L. The prisoner had not been arraigned at the time the plea and motion wore filed.

<p>Infant, Ratification of Contract by. Parent and Child. Administrator. ' Ofset. Costs. R. L. s. 2127.</p> <p>1. A contract by which a debt is incurred by an infant may be ratified by his express promise to pay it, made after he becomes of age; and his acts and declarations, made or performed after he has attained his majority, with deliberation and knowledge of his rights, may he of a character to constitute perfect evidence of such ratification.</p> <p>2. When a person on attaining- his majority promises to pay a debt which ho had contracted during his infancy, in the absence of any proof to the contrary, it would seem to be the natural presumption that he was aware of his rights.</p> <p>3. A widowed mother cannot recover of the estate of her deceased daughter for an organ bought at the daughter’s request made when she was about sixteen, and while living at the mother’s homo in the relation of parent and child, and there was no express promise to pay and nothing to distinguish it from the ordinary case where a parent indulges the request of a child.</p> <p>4. Nor can such mother recover for nursing at her own home her daughter in sickness, although she was more than eighteen years old, but constituted one of the mother’s family, and there was no understanding that charges should bo made; nor for the payment of a physician's bill incurred by the daughter’s illness; nor for the burial expenses of the deceased daughter, — as those last belong to the administrator to .pay.</p> <p>5. Ootset. Under the statute — K. L. s. 2127 — in an action against the estate of the deceased person, claims in offset are limited to such as existed at the time of the death of the intestate; otherwise, the due course of distribution would be altered.</p> <p>6. The plaintiff’s husband devised a farm in unequal portions to her and to her two minor children, her son and the defendant’s intestate. After the death of the husband, the mother rented the farm for several years on the shares, but she and the children lived thereon out of a common fund. The three constituted the family; and there was no understanding that any separate account should be kept, or separate contribution made towards their common support except the expenses of the intestate when at school; Held, in an action against the estate to recover for money loaned the intestate to complete her education, that the rent of the farm could not be allowed in offset.</p> <p>7. The court declined to change the decision of the court below, in refusing to recommit the report, — on the ground that the record did not show error.</p> <p>S. Costs. On an appeal from the decision of commissioners, where their allowance was greatly decreased, the costs were properly apportioned.</p>

Habeas Corpus. Heard by Veazey, J., November 7, 1887, and passed by him, with consent of counsel, to the Supreme Court. Petition dismissed. The first warrant issued against the relator was as follows : STATE OE VERMONT, ) .

Book Account. Heard on tbe report of an auditor, September Term, 1886, Chittenden County, Taut, J., presiding. Judgment pro forma for the plaintiff to recover $100. The plaintiff presented an account amounting to $360 for term fees in certain cases pending in the courts of this State and of the United States.

<p>Appeal from the decree of the Probate Court for the District of Chittenden. Heard by the Court, Chittenden County, September Term, 1886, Taft, J., presiding. Judgment that the plaintiff was not entitled to the Manwell notes and cash on hand in the bouse or ‘ ‘ home place ” of the testatrix at the time of her decease. Mary M. Fletcher died, leaving a will, the clause of which in contention is set out in the opinion.</p> <p>It appeared that the testatrix at the time of her death was possessed of a personal estate consisting mainly of United States bonds to the amount of about $175,000 ; that she bad some years previously given to the Mary Fletcher Hospital $150,000 ; that she kept most of her money and government securities in different banks, retaining with her at her bouse on Prospect street, from $500 to $1000 ; that sometimes when she received treasury certificates from Washington in payment of interest on registered bonds she kept them for a short period at her bouse, and at the time of her removal to the hospital, as hereafter stated, she had in her house from $1500 to $2000 of these certificates; that she also had there seven promissory notes executed by one Manwell for $1000 each, and also $1100.18 in cash.</p> <p>It was also the custom of the testatrix, to keep her promissory notes and that class of securities in her house ; and-at the time of the execution of her will, which was made when she was ill and expected soon to die, there was in the house besides the notes in dispute, other promissory notes amounting to about $80,000, which were subsequently given to the hospital as' part of the gift above named.</p> <p>She was also in the habit of having certain United States bonds, which she owned after the making of her will, brought to the house from time to time where they would remain during the day that she might cut off the coupons.</p> <p>She died in the hospital at Burlington a little before six o’clock in the evening of February 24, 1885, having been removed there from her house, about a mile distant, about two hours previously.</p> <p>When she left her house on Prospect Street to go to the hospital, she had no expectation of ever recovering sufficiently to return to the house.</p> <p>For years previous to her death the testatrix had been accustomed, occasionally, to leave her house and premises alone, generally for short periods ; and on such occasions she for safety, took with her the Manwell notes, such cash and securities as she had in the house, and other portable valuables, such as her watch.and jewelry, and to take them back with her to the house when she returnéd to it.</p> <p>Before leaving the house on the occasion of going to the hospital she for safe keeping put into the hands of her male servant, who accompanied her to the the hospital, $772 of the money which she had on hand at the house, and requested him to return to the house, after he had taken her to the hospital, for her other portable valuables, consisting of said notes» and treasury cértificates, her watch and jewelry, bank books, and the remainder of the $1100.18 in money, and to bring them to the hospital where he also was to stay that night, intending, if she lived to go back to her house, to take with her several articles, including the $772 ; and the servant returned to the house, obtained the articles, and.started with them for the hospital; but before he reached there and while he was on the road about midway between the house and the hospital the testatrix died.</p> <p>The plaintiff insisted that by the provisions of the will he was entitled to the Manwell notes and the $1100.18. The testatrix had owned these notes for several years. They were payable to another person than the testatrix and to order, and were not endorsed.</p> <p>The words “ household furniture ” do not so effect the words “ all my personal goods and chattels,” that they do not include cash and promissory notes. These words are not limited to things ejusdem generis. The disposition of judges of the present day is “to adhere to the sound rule which gives to words of a comprehensive import their full extent of operation, unless some very distinct ground can be collected from the context for considering them in a special and restricted sense.” 1 Jar. Wills, 760. The decisions have not always been consistent with each other; but they have pretty generally been put upon the professed ground of executing the intent of the testator as gathered from the whole will, rather than upon any peculiar relation of the words. If it had been the intent to exclude from the operation of the bequest to the plaintiff this money and notes, it would have been easy by an exception, or by the use of words of narrower import, to have so indicated. Many of the cases bearing on this subject are cited and stated in Jarman on Wills, Yol. 1, 754, et seq. In the forest of these cases are the following, which fully sustain the proposition that there is no controlling force in the arrangement of words, and that the doctrine of ejusdem generis, at the present time, has' no important influence in the construction of wills, and is not alone sufficient to warrant any restriction of the import of general words. Parher v. Marchant, 1 Younge & C. Ch. 290 ; S. C. 20 Eng. Ch. Rep>. ; Hoaii, J., .Browne v. Gogswell, 5 Allen, 556 ; Lord CotteNHAM in Saumarez v. Saumarez, 4 Myl. & Cr. 331; s. o. 18 Eng. Ch. Rep.</p> <p>In Qhurch v. Muncly, 15 Ves. 396, Lord EldoN said :</p> <p>“lam strongly influenced toward the opinion that a court of justice is not by conjecture, to take out of the effect of general words property which those words are always considered as comprehending.”</p> <p>That the $1100.18 are included in the general words used, seems entirely clear. Pop ham v. Aylesbury, Amb. 68; Chapman v. Hart, 1 Ves. Son. 271; 1 Roper Leg. c. 31, ss. 1, 2; Spriggs y. Weems, 2 Harr. & M. (Md.) 266; Green y. Symonds, (Redesdal es Ms.) cited in 1 Bro. C. C. 129 ; 2 Wms. Ex. 1273 n.; Ilearne y. Wigginton, 6 Mad. 119.</p> <p>Whether the notes pass to the plaintiff under the general clause, is not, on the authorities, clear, though there are decisions to the effect that they do.</p> <p>It is true, she did not endorse them, as the .testator did in Look y. Noyes, 9 N. H. 430 ; but as the Manwell notes were payable to another person than the testatrix and were never endorsed by the payee, it would have been useless for the testatrix to endorse them. The case, Loch v. Noyes, although differing from the present, in the fact that there the note was endorsed by the testatrix, is nevertheless an authority against the doctrine that a chose in action will not pass under a testamentary disposition similar to the one in Miss Fletcher’s will.</p> <p>The authorities agree that when considered in the abstract, the words goods and chattels comprehend notes. “Every kind of movables ” includes bonds. Jackson v. Robinson, 1 Yeates (Pa.) 101; 2 Wms. Ex. 1274. It is stated upon apparently good authority, that if negotiable instruments are payable to bearer, or if to order, and have been endorsed, then they will pass under the designation of goods and chattels. 1 Roper Leg.; 2 Wms. Ex. 1274; Webster v. Wires, 5 Com. 569 ; Benton v. Benton, 63 N. H. 289 ; Booh v. Bosin-ger, 4 Mod. 156; Sprig g v. Weems, 2 Harr. & M. 266. Certainly this distinction seems more fanciful than real. 2 Wms. Ex. 1275. We insist that the plaintiff is entitled to the $1100.18 and the notes. 6 Mass. 174.</p> <p>Under the familiar rule for the construction of provisions of this kind in wills, neither money nor notes are included. Choses of action, not savoring of locality, do not pass under such a bequest. Wms. Ex. 1273. The bequest is not of all the personal property on the premises, but specific property is named, which designation even if it were coupled with general terms not qualified or restricted would limit these terms to things ejusdem generis, or herein, to things appertaining to the household affairs. 2 Wms. Ex. 1276. The general term “ goods and chattels,” is here modified and restricted by the word “personal” and the phrase “ personal goods and chattels,” is limited in its application to simply those articles peculiarly adapted to the personal use of the testatrix. “ Where bequests ai’e made by words of enumeration, followed in the same clause by collective words, or words of general description, the latter are confined to matters ejusdem generis.” Bawlins v. Jennings, 13 Yes. Jr. 39.'</p> <p>In Penniman v. French, 17 Pick. 404, the words “ indoor movables ” were held to include only such things as were used about the house. In Bullard v. Gof'e, 20 Pick. 252, the words, “ all the residue of my furniture and estate whatsoever,” were restricted to personal property. So it was held in Dale v. Johnson, 3 Allen, 364, that the words, “ all my household furniture, wearing apparel, and the rest and residue of my personal property,” did not include money, stocks, securities, or evidences of debt. It was also held in Johnson v. Goss, 128 Mass. 434, in a bequest of “all my personal property, my household effects, horses, carriages, life insurance,” etc., that notes and stocks were not included. It was ruled in Benton v. Benton, 63 N. H. 289, where the will gave to the wife ‘‘ every article of household furniture, books, etc., and every other article of personal property in and about said homestead,” etc., that she did not take bank shares, notes and cash. The courts extend those general expressions so as to include notes and money only, when there is no residuary clause ;, and this construction has been adopted to prevent intestacy. 2 Jar. Wills, 364.</p>

<p>Criminal Law. Prisoner must procure copies of Appeal at his own expense. R. L. s. 1763.</p> <p>The legislature has authority to make reasonable laws regulating the mode in which the right of trial by jury in criminal causes shall he enjoyed; but it cannot impair the right; thus, a statute which in effect requires a prisoner convicted in a justice’s court, where a jury is composed of only six men, to procure copies of appeal at his own expense, if he appeals and would enter his appeal in the County Court, where a jury is composed of twelve men, is a reasonable regulation, and does not infringe the constitutional right of trial by jury.</p>

<p>GeNeral Assumpsit. Heard on a referee’s report, September Term, 1886, Washington County, Powers, J., presiding. Judgment on the report for the plaintiff. The case is stated in the opinion.</p> <p>. In this State it is well settled that an action at law may be maintained on a lost promissory note, not negotiable or payable to order, but not negotiated. ’ Lazell v. Lazell, 12 Yt. 443; HojpMns v. Adams, 20 Yt. 407; Hough v. Burton, 20 Yt. ' 455.</p> <p>Adams w. Bdmunds, 55 Yt. 352, is not in conflict with this principle but recognizes it.</p> <p>Section 2005, R. L., does not apply, as this suit is against the- original maker; and the parties stand'on their common-law - rights. There is a great difference between this case and those where the note has been destroyed. Where it has not been destroyed, he may be compelled to pay the note a second time. Adams v. Bdmunds, 55 Yt. 352.</p> <p>Suits to recover upon lost notes, which are negotiable, must be brought in courts of equity, which alone can require the plaintiff to secure the defendant by giving an indemnity. Han-sard v. Robinson, 7 B. & C. 90; Wain v. Bailey, 10 Ad. & El. 616; Price v. Price, 16 M. & W. 231; Pierson v. Hutchinson, 2 Camp. 211; Davis v. Dodd, 4 Taunt. 602 ; Qrowe v. Clay, 9 Ex. 603; 1 K. & J. 701; Moses v. Trice, 21 Graft. 556; Ex Parte Qreenway, 6 Yes. 862; Banlc of Va. v. Ward, 6 Munf. 166 ; Farmers Banlc of Va. v. Reynolds, 4 Rand. 186 ; 2 Daniels on Negotiable Instruments, s. 1475 ; Adams v. Edmunds, 55 Yt. 3.52.</p> <p>The criterion of jurisdiction is not whether the note has been negotiated, but whether it is negotiable. 1 Pars. Cont. 324 ; 3 Add. Cont. s. 1282.</p>

<p>ActioN to recover usury. Heard on a referee’s report, Chittenden County Court, September Term, 1886, Taft, J., presiding. Judgment pro forma for the plaintiff to recover .$232.87. Exceptions by the defendant.</p> <p>It appeared that the $1000 note and mortgage were executed Eebruáry 14, 1873; that the note was payable in five years from its date with annual interest; that the plaintiff paid the defendant as interest $60 on February 14, 1874, and the same in 1875; that the plaintiff sold his farm on the 14th day of June, 1875, to Catharine Hardaker, who assumed the payment of said mortgage, as á part consideration of. the payment of the purchase money; that said Hardaker paid to the defendant the interest on the note at six per cent each year, and on May 29, 1879, sbe paid the principal. It was found that the $18 transaction for examination of the property was had in good faith and not intended to cover usury. The other facts are sufficiently stated in the opinion.</p> <p>The $18 was not usury in any view. Smith v. Waif, 55 Iowa, 555 ; Hutchinson v. Ho'smer, 2 Conn. 341.</p> <p>There was no usury in the note. The plaintiff had $1000 and paid $100 of it to the defendant, “ being the usury agreed upon,” and $12 overcharge for expenses. He understood that the transaction was just what it was, and slept till his rights were gone. Davis v. Converse, 35 Vt. 503; Lamoille Co. Panic v. Bingham, 50 Vt. 105 ; Spaulding v. Davis, 51 Vt. 77 ; Wells v. Robinson, 53 Vt. 202.- Whatever Mrs. Hard-aker paid beyond what was necessary to take up the note according to its terms was her business. There can be no recovery for any usury paid for keeping the loan on foot after February 14, 1878. Even on the basis of the judgment below, calling the sum loaned $900, the judgment should be for only $207.67.</p> <p>The usury paid was included in the note. Rob. Dig. 735, s. 45 ; Davis y. Converse, 35 Vt. 503 ; Grow v. ATbee, 18 Vt. 540; Nelson v. Cooley, 20 Vt. 201; Ward v. Whitney, 32 Vt. 89; Ward v. Sharp, 15 Vt. 115. In this last case, Redeield, J., said:</p> <p>‘ ‘ Payments made in pursuance of an usurious contract to an amount within the debt and legal interest are to be regarded as payments generally.”</p> <p>All that the plaintiff and Mrs. Hardaker paid prior to the last payment are to be treated as payments on the principal; so that the usury was' really included in the last payment. POLAND, J., in Ward v. Whitney, supra -, Ross, J., in Wells v. Robinson, 53 Vt. 202; Phelps v. Bellows, 53 Vt. 539.</p> <p>The plaintiff can recover all usury paid by himself and by Mrs. Hardaker. Spaulding v. Davis, 51 Yt. 77; Reed v. Eastman, 50 Yt. 67 ; Low v. Prichard, 36 Yt. 183. The $12 paid for expenses was usury. Williams v. Wilder, 37 Yt. 613.</p>

<p>Assumpsit. Heard on report of referees at December Term of Orange County Court, 1885, Rowell, J., presiding. Motion to re-commit overruled and judgment on the report for the plaintiffs to recover $2942.58 as damages and costs. Exceptions by the plaintiff. The motion to re-commit was on the ground “that the report finds as facts matters that are inconsistent with each other, in this ; that they find that Luke Tarbell had no other interest or rights in said 419 cords of wood than that given him in the bond from the plaintiffs ; and they find that Luke Tarbell with the knowledge and consent of Ephraim Thayer sold 419 cords of wood to Daniel Tarbell;” and also as stated in the opinion, that the referees erred in disallowing the plaintiff’s charge for 419 cords of wood. The referee found that it appeared that in July, 1882, the parties to this suit entered into a verbal contract by which the plaintiff agreed to deliver to the defendant all the wood that he could, but no definite amount was determined upon and defendant was to pay as much as it paid anyone.</p> <p>It was also found that the plaintiff under this contract delivered many cords of wood, and as to the wood in contention substantially as follows : "Said plaintiff had a quantity of wood in the Roxbury Lumber Company’s mill yard in June, 1883, amounting to 419 cords. And we further find that Luke Tarbell sold and delivered said lot of wood on board the cars to Daniel Tarbell and removed by said Daniel Tarbell to the sheds in Randolph and So. Royalton, and by said Daniel sold to the defendant. And we also find from testimony of said plaintiff and Luke Tarbell and a bond and contract from said plaintiff to said Luke Tarbell (a copy of which is hereto attached) that said Luke Tarbell had an interest in said wood and its sale. * * * That tire Roxbury Lumber Company mill yard was owned by D. Tarbell and was leased by him to this defendant. That the 419 cords of wood were delivered into said yard under said contract of July, 1882, and when so delivered said lease was in force, and defendant' in possession under said lease. That Luke Tarbell had no other interest or right in said 419 cords than that given him in the bond from said plaintiff to said Luke Tarbell; that the title to the land on which all of said wood grew was in the plaintiff.</p> <p>The 419 coi’ds were measured for said Daniel Tarbell, August 13, 1883, and on settlement between Daniel Tarbell and the defendant, November 17, 1883, and was adjusted on their settlement aforesaid. Plaintiff gave notice to. defendant that the wood was his November 1, 1883.</p> <p>At defendant’s request we further find :</p> <p>That Luke Tarbell, with the knowledge and consent of Ephraim Thayer, sold to Daniel Tarbell the wood piled in' the sheds at Randolph and Royalton as aforesaid, and that Thayer, knowing Of such sale and knowing of Luke Tarbell’s adjustment thereof, as indicated by schedule C, did not object or dissent therefrom, November 1, 1883, but took and retained exhibit C and still retains it.”</p> <p>The contract attached to the referee’s report was dated December 18, 1880, and signed by the plaintiff and Luke Tarbell.</p> <p>By this contract the plaintiff agreed to pay said Luke $300 for each 100 cords of wood he should cut on the plaintiff’s farm and deliver on to the railroad ; and the defendant agreed : “ And I, the said Luke Tarbell, do hereby agree to move, on to the farm and take charge thereof without pay from said Thayer, and whatever wood I manufacture from said farm is to be and remain the property of the said Thayer until he shall make conveyance of the said farm to me according to his bond to me of this date. And I hereby agree that I will not sell or otherwise dispose of any wood so by me manu-.factored as aforesaid.”-</p> <p>The finding of the referees as to what the contract was, is conclusive. But the report shows that the referees allowed what they, thought the wood was worth. For this reason the report should be set aside. The finding of the referees are contradictory and in such case the report should be set aside. Briggs v. Georgia, 12 Yt. 60. As to new trial, see Walden v. Olark, 50 Yt. 383.</p> <p>If the report was wrong it should have been attacked in court below by exceptions. The plaintiff waived all objections to the report through failure to file exceptions. Fuller v. Wright, 10Yt. 512.</p>

<p>Order of removal of a pauper. Heard on an agreed statement of facts, June Term, Orange County Court, 1886, Rowell, J., presiding. Judgment that the pauper was duly removed from the town of Topsham to the town of Chelsea.</p> <p>Agreed statement:</p> <p>“It is admitted by the parties in this cause that the facts are sufficient on which to base a judgment for the plaintiff, in the usual form, unless the contrary hereinafter appears.</p> <p>‘ ‘ The pauper became eighteen years of age at a time when her father lived and had his legal settlement in the town of Corinth, Vt. About that time her father and family moved to Chelsea, the defendant town, and he there acquired a legal settlement and has ever since held the same.</p> <p>“This settlement was acquired by seven years’residence, commencing in March, Í867. The pauper always resided with her father and in his family until a short time before the order in this case was made, and has never gained a settlement anywhere for herself unless she has in said Chelsea.' She resided and had her home in said Chelsea for more than seven years after she became of age, and has never resided in any other town for the space of seven years, and had her settlement in said Chelsea at the time said order was made, providing she was mentally and physically capable of gaining a settlement by residence,' or if she took and had her father’s settlement which he had at said time in said Chelsea.</p> <p>“The pauper has always been mentally and physically infirm, and not capable of taking care of herself, and required and has had the care of her father in his family the same since she became eighteen years of age as she had before.</p> <p>“The pauper at the time she became of age, and for a long time before, had been insane at irregular intervals, frequently recurring, and had so been insane to such an extent that she was incapable of taking care of herself, from the fact that it could not be anticipated from day to day what her condition would be. And her mind was so affected by her often recurring fit's of insanity that she was rendered incapable of caring for herself even in her sane intervals. And this condition of mind has continued ever since.”</p> <p>At the time the pauper became of age her father, from whom she derived her settlement, had his settlement in Corinth, and therefore her settlement is in Corinth.</p> <p>"When she arrived at majority she was emancipated, and did not in her own right acquire a settlement elsewhere, and could not, because of her mental condition.</p> <p>She could not “come to reside” in any other town, by reason of her infirmity of mind.</p> <p>She could not have the necessary intent. To have acquired a settlement in Chelsea, she must have intended to reside there and this from her condition she did not and could not legally have done.</p> <p>If her father had not resided in Chelsea the requisite seven years, so that he did not gain a settlement, but the pauper did reside there seven years, could she have acquired a settlement in her own right? Certainly she could not, as the necessary element of the coming to reside is lacking, namely, the intent.</p> <p>But if the court shall hold that the pauper was never emancipated, then we say that she was not subject to an order of removal. To be subject to an order she must have “ come to reside ” in Topsham, in the legal sense. And legally she could not have so “ come to reside,” being non compos mentis.</p> <p>The pauper’s mental condition was not such as to render her incapable of gaining a settlement. It does not appear, except perhaps inferentially, but that her residence in Chelsea was of her own choice, that she was not capable of choosing, and was acting under restraint. This case comes under the rule laid down in Ludlow v. Landgrove, 42 Yt. 137. It is not inconsistent with Brownington v. Charleston, 32 Yt. 411. Itis not very material whether the pauper was emancipated or not; for if not, then she takes the settlement of her father, which was in Chelsea. Hardwick v. JPawlet, 36 Yt. 320 ; Tipton v. North-bridge, 15 Mass. 237; Charleston v. Boston, 13 Mass. 469; Orford v. JRumney, 3 N. H. 331; Salisbury v. Orange, 5 N. H. 348; Alexandria v. Bethlehem, 16 N. J. L. 1 Harr. 116 ; Bradford v. Lunenburg, 5 Yt. 481.</p> <p>The law presumes that the pauper was emancipated on becoming eighteen years of age. Hardwick v. Pawlet, 36 Yt. 320; Poultney v. Grover,'28 Yt. 327.</p>

<p>Appeal from the Probate Court ordering the removal of the defendant as executor of the will and estate of Hiram Bellows, deceased, and the appointment of S. S.. Allen as administrator of said estate. Heard by the Court, April Term, 1886, Franklin County, Royce, Ch. J., presiding. Judgment that the appeal be dismissed. The case appears in the opinion.</p> <p>The statute allowing appeals applies to this case. R. L. ss. 2270-5-9. The legality of the order is brought in question, and this clearly entitles the defendant to an appeal. Holmes v. Holmes, 26 Yt. 536 ;. Hilliard v. McDaniels, 48 Yt. 124 ; Adams v. Adams, 21 Yt. 162.</p> <p>Our courts have sustained appeals from the appointment of administrator under various circumstances, and no suggestions are found that the right of appeal depends upon any circumstances. Hilliard v. McDaniels, 48 Yt. 124 ; Woodward v. Spear, 10 Yt. 420 ; Fletcher's Gase, 29 Yt. 98 ; Anderson’s Case, 42 Yt. 850; Lawrence y. Inglesby, 24 Yt. 42; Willey v. Brainerd, 11 Yt'. 107.'</p> <p>The case of Felton v. Sowles, 57 Yt., does not apply to this case. This was not a final order.</p> <p>Sec. 2627 of Rev. Laws was not enacted at the time of the testator’s death. At common law no bond from an executor was required. Ames v. Armstrong, 106 Mass. 15; Wms. Ex. p. 527; Aclams v. Adams, 21 Yt. 162; Bellows v. Sowles, 57 Yt. 164; Weelcs v. Sowles, 58 Yt. 696.</p> <p>On refusal of the appellant to furnish the bail required by the order of the Probate Court, the judgment of said court now appealed from is expressly authorized by the Rev. Laws, s. 2074. The power of removal conferred by this statute for neglect and refusal to comply with the orders of the court is intended as a summary method of deposing an impecunious and defiant executor, administrator or trustee, and thereby save the estate from being' squandered and ' diverted.</p> <p>The decree appealed from is the natural and inevitable result of non-compliance with the order to file a bond as executor of Hiram Bellows’ estate, and if that order is not the subject of appeal this cannot be.</p> <p>It has already been decided by this court that the order requiring the executor to file a bond in this case, was one from which no appeal would lie. Felton v. Sowles, 57 Vt. 382.</p> <p>The reasoning of the court in that case applies with equal force to the order under review here.</p> <p>In Leach v. .Leach, 51 Vt. 440, this court held that an order, in its terms broad enough to provide for the maintenance of a widow and her minor children during the settlement of the estate, is within the discretion of the Probate. Court and conclusive, and no appeal lies from such decree.</p> <p>The record shows no interest of the defendant in the estate that would allow him an appeal. Hemmenway v. Corey, 16 Yt. 225.</p>

INDICTMENT charging the respondent with the illegal sale of intoxicating liquor. Trial by jury, September Term, 1885, Orleans County, Ross, J., presiding. Verdict, guilty of one offense. It was charged in the indictment that the respondent was guilty of a second offense, but no evidence was introduced tending to prove a prior conviction. 1. It was error to admit'Norton’s testimony and the copy which he claimed to have made from the book of the internal revenue collector.

<p>TRESPASS on the freehold. Heard by the court on a referee’s report, Chittenden County Court, September Term, 1886, Taet, J., presiding. Judgment pro forma for the plaintiffs. Exceptions by defendant.</p> <p>The referee found as follows :</p> <p>“ At the time of the commencement of this suit', and at the time of her death, which has since occurred, Aurissa W. Hubbard, one of the plaintiffs, and the wife of Jesse M. Hubbard, the other plaintiff, was the owner in fee of a piece of land on the southerly side of the Winooski (formerly Onion) River, in Burlington, of the width of about 27 rods; and had been such owner ever since October 3, 1874, having acquired her title thereto under a deed from one Lyman and his wife to one Ballou, dated July 12, 1836, and through various intermediate conveyances, one of which was from Myron and Seth Morse to the plaintiff, Jesse M., dated June 16, 1859, since which date said Jesse M. has been in continuous occupation thereof. But it did not appear that after his wife became the owner of the land, he had or claimed any right or title to it except such as resulted from his" marital relation. The description of the promises in said deed from Lyman and wife to Ballou was as follows : ‘ Beginning at a stake standing on the bank of Onion (now Winooski) River, being the northeasterly or up-river corner of that part of said lot No. 30, which was heretofore owned by David Russell and Stephen Russell; thence south * * * ; thence north 59 deg. 30 min. ; east 26 chains, to the bank of Onion River; thence down said river, by the bank thereof, to the place of beginning, containing 14 69-100 acres.’</p> <p>“ The defendant, at the time of the committing of the alleged trespasses, was the owner in fee of a farm, of the width of about 90 rods, adjoining said land of Mrs. Hubbard, and lying-next below it on said. river, and had been such owner since November, 1868, having derived his title by deed from one Fletcher, who acquired his title by the foreclosure of a mortgage executed to him by one Adams on the 28th day of November, 1849, in which mortgage the defendant’s farm is described as follows : ‘ Being the whole of 100 acre lot No. 198, the half of lot No. 197, the south part of lot No. 21, and and the north part of lot No. 30, and bounded on the north by land owned by J. B. Bixby and land lately owned by C. P. Yan Ness, on the east by Onion River 3 * * *.’</p> <p>‘ ‘ For many years previous to the committing of the alleged trespasses, the bank of the river along the entire river front of Mrs. Hubbard’s land, about 50 rods in length originally, and extending down stream a distance of nearly 50 rods along the defendant’s original river front, had gradually and imperceptibly receded towards the north by deposits and accretions made thereon by the stream, until, at the time of the alleged trespasses (extending the side or land lines of Mrs. Hubbard’s said land straight to the new river bank), the alluvion so formed in front of her said land amounted to about five acres, and that so formed on the defendant’s land amounted to about eight and one half acres, a portion of which alluvion, opposite the land of each party, was covered with trees of various sizes ; and during the same period the defendant’s entire river bank, about 100 rods in length below said alluvial deposit, was gradually worn off and carried away by the stream, causing a loss to him of about seven acres of his land situated on that portion of the bank.</p> <p>‘ ‘ Before the' referee the plaintiffs claimed that the alluvion so formed on the old bank of said stream should be divided between the parties by a line called division by shortest distance,’ drawn from tlie point of intersection of Mrs. Hubbard’s westerly line with the old bank of tlie river, as described in said deed from Lyman and wife to Ballou, marked ‘ C ’ on the map hereinafter referred to, northwesterly to the nearest point on the present river bank perpendicularly to the thread of the stream, making an acute angle with said westerly line, as defined in said deed; or, if that line of division should not be considered the true and correct one, then said alluvion should be divided between the parties by a lino called ‘ division by chord perpendiculars,’ according to the rule laid down in Emerson v. Taylor, 9 Me. 44, extending- from said point of intersection, nearly north, to the present river bank, striking the same at a point about 19 3-4ths rods up stream, or easterly from where said line, called ‘ division by shortest distance,’ strikes the present bank; or, if neither of said two linos of division should bo adopted, then a line called ‘ division by proportional of old and new shore,’ according to the rule adopted in Deerfield v. Arms, 17 Pick. 41, dividing said accretion between the parties in proportion to the extent of their respective lines on the old river bank, should be adopted ; which last mentioned line would extend from the same point ‘ C’ as the other two, and strike the new river bank about six and one-fourth inches farther up stream than said line of chord perpendiculars.</p> <p>‘ ‘ The defendant claimed that the true line of division of said alluvion was a line corresponding wfith- the westerly line of Mrs. Hubbard’s land, as described in Lyman and wife’s deed to Ballou, extended to the new river bank.</p> <p>“ In making this division of the accretion, as claimed by the plaintiffs, both by chord perpendiculars and by proportional of old and new shore, that portion of the shore line, and only that portion which bounds the entire. accretion, not only against plaintiffs’ and defendant’s land, but also against the the land of Reynolds, the proprietor next above, was considered.</p> <p>“ From the year 1859, when Jesse M. purchased his lot, to the winter of 1881, the said Jesse, without the knowledge of the proprietors of the defendant’s lot, from time to time, as he had use for the same, cut fence polesK stakes, and some wood for his own use on this alluvial tract, mostly above the line of division contended for by the defendant, but in some years below that line, upon the territory in dispute. He also picked up some flood-wood on that territory, made temporary fences on the disputed tract, and in the winter of 1881-82 felled several large trees below the line, as claimed by the defendant, which defendant afterwards appropriated. The defendant, also, from time to time, has cut poles for fencing on this disputed tract.</p> <p>“ During the winter of 1881-82 the defendant cleared two and twelve one-hundredths acres of the alluvial land in dispute, cutting and drawing away 110 cords of wood, of the value of $75, all of which wood was cut upon land lying between the line, as claimed by the defendant, and the ‘ line of shortest distance,’ as claimed by plaintiffs, and two-thirds of which, in both value and amount, was cut between the line, as claimed by defendant, and the line of chord perpendiculars ’ o^^uroportional parts of old and new shore,’ as claimed by fl^^^^ntiffs. And I attach hereto a diagram showing, with sH|PRHfeMfe¡mcy, the whole locality connected with the matters this case.</p> <p>‘ ‘ The irregular lines designated on the map as ‘ the old river bank,’ marks the bank of the river as it was in 1836 ; and the original corner between the plaintiffs’ and the defendant’s premises, described in the deed as the up-river corner of the Bussell lot, is a point on the old river bank marked ‘ C ’ upon said map.”</p> <p>The deed from Lyman and wife to Ballou contained the following clause in addition to the description given in the referee’s report: “ Meaning and intending hereby to convey the same land which was conveyed by Moses Catlin to Amasa Paine by deed bearing date January 29, A. D. 1806.”</p> <p>Deed of Catlin to Paine : ‘ ‘ Beginning at a stake standing on the south bank of Onion Biver * * * ; thence running south 58 degrees W. 24 ch. 66 li. * * * ; thence N. 58 degrees E. in the easterly line of land occupied by David Bussell and Stephen Bussell, as aforesaid, .to the aforesaid south bank of Onion Biver, thence up said river to the first-mentioned bounds.”</p> <p>Deed of Ballou to Bishop, October 28, 1836 : “Part of lot No. 30 of the 103 acre lots, beginning at a stake standing on the bank of Onion Biyer, being the northerly or up-river corner,- etc.,” the rest of the description being the same as that in the deed of Lyman and wife to Ballou.</p> <p>‘ ‘ Meaning and intending hereby to convey the land which was conveyed by Moses Catlin to Amasa Paine, by deed bearing date January 29, A. D. 1806, and the same that was conveyed by deed to me by Lewis and Mary B. Lyman on the 12th day of July, A. I). 1836.”</p> <p>Deed of Bishop to Brown, June 2, 1838 : “ Part of lot No. 30 of the hundred acre lots, beginning at a stake standing on the bank of Onion Biver, being the northerly or upper corner of that part of said lot which was heretofore owned and occupied by David Bussell; thence S. 59 deg. 30 min. W., etc. * * * ; thence N. 59 deg. 30 min. E. 26 chains to the bank of Onion Biver; thence down said river to the place of beginning, containing 14 69-100ths of an acre of land, be the same more or less.”</p> <p>The descriptions in the other deeds from Brown to Peck, from Peck to Morse, from Morse to Hubbard, consisted the .most part of references to former deeds.</p> <p> </p> <p>I. The death of Mrs. Hubbard abated the suit. 1 Chit. PI. (16th Am. ed.) 85; Schoul. Ilusb. & Wife, ss. 167, 424; Pettingill v. Butterfield, 45 N.' H. 195; Fuller v. II. B. R. Go. 21 Conn. 557; West v. Jordan, 62 Me. 484.</p> <p>II. As by the terms of the deed from Lyman and wife to Ballou, through which Mrs. Hubbard’s title was derived, the river-side line of the line conveyed is defined as the bank of river, no .subsequent accretions thereto would enure to the benefit of the owners of that land. Mrs. Hubbard, therefore, never had title to any of the alluvion mentioned in the referee’s report. Gould on Wat. s. 200; 3 Wash. R. P. 354, note; 1 Wait. Act. & Def. 711, 716; Ghild v. Starr, 4 Hill, 369 ; 17 N. Y. C. L. 893; Ganal App. v. People, 17 Wend. 596 ; S. C. Book 13, N. Y. C. L. 247 ; Halsey v. McCormick, 13 N. Y. 296; Yates v. Van De Bogart, 56 N. Y. 526, 531; Hatch v. Dwight, 17 Mass. 289, 299 ; City of Boston v. Richardson, 13 Allen, 146, 155 ; Nickerson v. Crawford, 16 Me. 245; Bradford v. Oressy, 44 Me. 9 ; Stone v. Augusta, 46 Me. 127 ; Lincoln v. Wilder, 29 Me. 169, 179 ; Rix v. Johnson, 5 N. H. 520; Daniels v. Cheshire R. Go. 20 N. H. 85 ; Morrow v. Willard, 30 Yt. 118.</p> <p>Nor is the construction of that deed affected by the clause in it. beginning “Meaning and intending to convey the same land ” conveyed by Catlin to Paine. Hibbard v. Hurlbert, 10 Yt. 173, 180; Gilman v. Smith, 12 Yt. 150; Spiller v. Scribner, 36 Yt. 245 ; Keenan v. Cavanaugh, 44 Yt. 268 ; Howe v. Bass, 2 Mass. 380; Pernam v. Wead, 6 Id. 131; Melvin v. Proprietors, etc. 5 Met. 16; Dana v. Bank, 10 Met. 250; Preston’s Heirs v. Bowmar, 6 Wheat. 580; S. C-Bk. 5 (L. ed.), U. S. Sup. Ct. Rep. 386; 4 Kent, 466; 3 Wash. R. P. 350, 352; 1 Wait. Act. & Def. 714.</p> <p>III. If Mrs. Hubbard had title to any of the alluvion, a division of it by an extension of the westerly line of her land, as described in said deed from Lyman and wife to Ballou, to the new river bank, is as favorable a line to her as sbe was legally entitled to upon the facts reported.</p> <p>No rule for the division of alluvial accretions between conterminous riprarian proprietors lias ever been authoritatively adopted in this State. The members of the court were not unanimously in favor of the decision in Newton v. Eddy, 23 Yt. 319. Judge Redeield was in favor of adopting a rule similar to that contended for by the defendant in this case. The soundness of Newton v. Eddy as an authority in support of any rule of division of alluvion has been questioned. Batchelder v. Kiniston, 51 N. H. 496.</p> <p>It is not practicable to adopt any general and uniform rule which will not, in many cases, do absolute injustice .to one party or the other. The Massachusetts courts, which seem to have had much to do with this question, concede the impracticability of devising a genei’al rule. In Deerfield v. Arms, 17 Peck. 44, the court says : ‘‘This is a curious, and in any aspect in which it may be presented would be a very difficult subject, as well as the analogous one of the division of flats or lands bounding on salt water, over which the tide ebbs and flows, among conterminous proprietors, were it necessary to prescribe a general rule applicable to all supposable cases.” And on page 45 : “ Without attempting to establish a rule of general application, we think that the one which shall most nearly, in general, accomplish -these two conditions, will come nearest to .doing justice.” And the inconsistencies in their decisions, which will be apparent upon a perusal of all the cases, sufficiently prove, if proof were needed, that no rule of universal application is practicable. As an illustration of these inconsistencies compare Deerfield v. Arms, in which the rule applied was to give each proprietor as many portions of the new river bank as he owned in the old, or what, in the present case, is termed “ division by proportional of old and new shore,” with Knight v. Wilder, 2 Cush. 199, which was similar in its facts, and in which the line adopted was drawn at right angles with the river, or what, in the present case, is called “ division by shortest distance.”</p> <p>In other cases, also, the language of the courts implies a consciousness of the difficulty of devising a uniform rule governing in all cases. Thus, in Emerson v. Taylor, 9 Me. 42.</p> <p>In Stockhaxn v. Browing, 18 N. J. Eq., the chancellor said that the rules were “ very unsettled,” etc. See Elgin v. Beckwith; 7 West. Rep. (s. c. 118 or 119 Ill.) 707; Gray v. Deluce, 5 Cush. 9; Att’y-Gen. v. Boston Wharf Go. 12 Gray, 553 ; Thornton v. Grant, 10 R. I. 477, 489 ; Smith v. St. Louis, 30 Mo. 290; Chapman v. Eoskins, 2 Md. Ch. 485 ; Mayor of Nexo Ox'leans v. United States, 10 Pet. 117 (Bk. 9 L. ed. 594).</p> <p>In Deex'field v. Arms, supra, Shaw, Ch. J., says : “ There can be nothing clearer, as a principal of justice, than that the' riparian owner is entitled to the alluvial deposits formed against his own land by imperceptible degrees.”</p> <p>I. If it were material to the plaintiffs’ case it might fairly be contended that the legal effect of the successive grants under which they make title is to bound their lot upon the river so as to include the bed of the stream to its middle thread. 2 Wash. Real. Prop. 632; Ang. Wat. s. 23; Watson v. Deters, 26 Mich. 508 ; Gavit v. Chambers, 3 Ohio, 496; Ex pax-te Jennixigs (Judge CoweN’s note), 6 Cowen, 518 ; Lamb v. Rickets, 11 Ohio, 311.</p> <p>It is insisted that a fair construction 'of the grants in the chain of the plaintiffs’ title, and the deeds are by express reference all tied together, does not indicate an intention on the part of any of the plaintiffs’ grantors to exclude the river bed from his conveyance. Ang. Wat. ss. 24, 28, 30 ; Luce v. Carley, 24 Wend. 451; Cold Spring Bon Woxdcs v.- Tollaxid, 9 Cush. 492.</p> <p>It is true that in the second deed, and all but one of those that follow the words, “by the bank thereof,” are inserted, but all these deeds incorporate, by reference, the description of the first deed, except the conveyance from Bishop to Brown, which revives the language of the earliest deed, and describes the river boundary as running “down said river.” It is insisted that the words "by the bank ” are used synonymously with “ down said river” or “ up said river,” and only signify that the river line is to follow the course of the stream, and is not straight, not that there is any purpose to reserve the alveus from the grant.</p> <p>See Vice-Chancellor Gkedley’s construction of the grants in Varióle v. Smith, 9 Paige, 547 ; also Sleeper v. Laconia, 60-N. H. 201.</p> <p>II. But except in its possible bearing upon the rule of the distribution of the alluvion the inquiry whether the plaintiffs’ land extends to the middle of the stream is unimportant. The grants are all sufficient to carry title to low water mark. ‘ ‘ It may be considered a canon in American jurisprudence,” says Mr. Justice Swayke, “ that when the calls in a conveyance of land are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise.” St. Clair Co. v. Lovingston, 23 Wall. 46 Starr v. Child, 4 Hill, 369 ; Lamb v. liichets, 11 Ohio, 311; Jones v. Johnston, 18 How. 150; Halsey v. McCormicle, 13 N. Y. 296 (18 N. Y. 147).'</p> <p>But the conveyance of the bank to low water mark carries also .the right to the alluvion.</p> <p>It is the ripa, not the alveus, which is the foundation of riparian rights, and the.ownership of the bank gives title to its growth in the nature of alluvion quite irrespective of any property in the bed of the stream. Ang. Wat. s. 53 ; Lyon v. Fishmongers Co. 17 Moak’s Eng. Rep. 51; Foster-v. Wright, 30 Moak’s Eng. Rep. 648; St. Clair Co. v. Lovingston, 23 Wall. 46 ; Boorman v. S'unnuchs, 42 Wis. 233 ; Delaplaine v. O. & N. W. B. Go. 42 Wis. 214.</p> <p>So tbe alluvion would pass to tbe plaintiffs, tbe accumulated alluvion and all future increment of tbeir bank, unless, as in some of tbe cases above cited, tbe calls of tbeir deeds would cut off some portion of it.. Sucb is not tbe case. In all tbe deeds subsequent to the first one, in which the description begins at tbe up-river corner of tbe Hubbard lot, tbe point of beginning is tbe up-river corner of tbe Russell or Manwell lot upon the upland, a point upon tbe old bank marked 'C’ on tbe map. The third call is for a point on tbe bank of tbe river, tbe bank, that is, as it existed at tbe time of tbe successive grants, whence the boundary line proceeds either along tbe bank or in the thread of tbe stream to tbe point of beginning, the up-river corner of tbe Russell or Manwell lot. The legal effect of this term in tbe description is to carry tbe river line to tbe original corner projected to tbe thread of the stream, or to the bank at low water mark, in tbe direction in which tbe law would carry it in tbe distribution of tbe alluvion. Tbe shore line or tbe mid-stream line is to be followed until it ceases to be applicable, which is at that point which is the true or legal corner of the Manwell lot. Ipswich Petitioners, etc. 13 Pick. 431 ; Knight v. Wilder, 2 Cush. 199 (at p. 210).</p> <p>III. Tbe final inquiry, therefore, is where is tbe legal upriver corner of tbe Russell or Manwell lot, which is tbe same with tbe question by what rule shall the alluvion be divided between these contiguous riparian owners.</p> <p>If tbe plaintiffs’ title goes to mid-stream, it is impossible to distinguish this case from tbe case of Newton v. Eddy, 23 Yt. 319 ; and the rule of that case should be adopted, which would divide the alluvion between tbe plaintiffs and the defendant by tbe line indicated on tbe map as drawn from tbe old corner on tbe up-land perpendicular to tbe stream..</p> <p>The same rule is applied in tbe following cases : Clark v. Oampau, 19 Mich. 325; Aborn v. Smith, 12 R. I. 371; Porter v. Sullivan, 7 Gray, 443.</p> <p>If the rule of Newton v. Eddy does not seem equitable, then the rule adopted in Deerfield v. Arms, 17 Pick. 41, which gives to each owner upon the bank as many equal parts of the new shore as he had feet upon the old, a rule adopted from the civil law, and which has been approved by the 0". S. Supreme Court in Jones v. Johnson, supra, is certainly as favorable to the defendant as he can claim. The rule laid down in Emerson v. Taylor, 9 'Me. 44, gives substantially the same division line as the Massachusetts rule. Ang. Wat. S..55.</p>

<p>ACTION on the case for negligence. Trial by jury, September Term, 1886, Washington County, Powers, J., presiding. Verdict and judgment for the plaintiff to recover $725.</p> <p>The plaintiff testified in part: That he attended the State Agricultural fair in September, 1884, — a joint exhibition by the State Agricultural Society and the Champlain Valley Association; that at the time of the accident he was looking for the superintendent to hire a piece of ground to sell whips on.</p> <p>“ I had business with another gentleman, looking after Mr. Hammond, and ho and I proposed that we should look for Mr. Hammond and try our luck again. He was to take the same course we had taken before and I was to go through Floral Hall; after I parted with him, on my way to Floral Hall I was struck by a man and he broke my leg.”</p> <p>Q. State by what you were struck ? A. I was struck by a mallet of some kind.</p> <p>Q. Describe how you happened to be struck ? A. I was going to Floral Hall looking for Mr. Hammond, as he was described to me. About every gentleman I saw, I was looking attentively to see if it was Mr. Hammond, and, walking slowly by, the first thing I knew I was knocked from my feet.</p> <p>Q. How? A. By some one swinging a beetle. I did not see exactly how it was done. All I knew I was struck with the beetle and knocked on my back.</p> <p>These defendants are two distinct corporations existing under separate legislative enactments, with limited and specially defined powers and functions.</p> <p>It is sought in this action to charge the defendants for an injury to the plaintiff through the joint misconduct and negligence of the defendants in their corporate capacities.</p> <p>Upon the case made before the jury by the plaintiff, the defendants insist that a verdict in their favor should have been directed. Even if the machine.had been placed there by the defendants, and they had authorized its use in the ordinary Way of using such a contrivance, this alone would not have been sufficient to render them responsible for injuries accidentally resulting from such use; for there was nothing in the kind or character of the machine which rendered it at all dangerous, nor was the use of it likely to produce injury to any one exercising ordinary care for his own safety. As well might the managers of the fair be held responsible for accidents resulting from the operation of machinery on exhibition.</p> <p>There was no corporate action respecting the striking machine; no testimony was introduced tending to show any instructions to defendants’ agents or servants to do anything in excess of their proper corporate power; none to show a ratification by defendants of any unwarranted acts or neglects of their agents ; none to show that the defendants derived, or expected to derive, any benefit from the presence of the machine, nor that they in any manner recognized the machine or its use as any part of the exhibition.</p> <p>To preclude the defendants from the right to insist upon the point of ultra vires in this case “ it is necessary that it should appear that they have in a clear and explicit manner recognized the act as done in their business.” Creen, Bfi. Ultra Vires, 364; Boone Corp. s. 84; Hutchinson v. JR. JR. Oo. 6 Heisk. 634.</p> <p>It is true, as a rule, that as the corporation is created for á particular purpose only, and endowed with powers to accomplish that purpose, nothing can be done by it, or in its name, that is not within the intent of its. charter. It must indeed act through agents and officers ; but if these undertake to do what the corporation is not empowered to do, their action can not impose a liability upon the corporation. Cooley, Torts, 119.</p> <p>So far as the testimony shows, or tends to show, the man, whoever he was, who swung the beetle against the plaintiff’s leg, was a mere uninvited intruder, prompted solely by his own curiosity and meddlesomeness.</p> <p>To entitle the plaintiff to recover it must appear affirmatively that he was in the exercise of at least ordinary care; and it affirmatively appears that'he was exercising no care.</p> <p>Conceding (what is not clear) that the plaintiff was lawfully upon the fair grounds upon the occasion in question, from his own testimony it affirmatively appears that he was not there for any purpose within the legitimate scope of the corporate powers and duties of the defendants, but was there solely on a whip speculation, in no way connected with the proper objects of the fair.</p> <p>Corporations are liable for their negligent torts, and for the negligence of their officers and servants acting in the course of their official duty or employment, in the same manner and to the same extent that individuals are liable under the same circumstances. Mor. Cor. (2d ed.) ss. 725-734; Boone, Cor. s. 84.</p> <p>The defendants, holding an exhibition or fair, were bound to use such care and prudence as prudent men in the exercise of prudence might use under the' same circumstances, to have and keep the place provided for the exhibition or fair in a safe condition for those lawfully attending.</p> <p>If they, their officers or servants, permitted to be used at that time and place a machine dangerous to be then and there used -without some reasonable guard or precaution to forewarn of danger, and did not provide such guard or take such precaution, it was a breach of duty, or negligence, on their part; and if the plaintiff, without fault on his part, thereby received an injury, he was entitled to recover. Lax v. Darlington, 31 Eng. Rep. p.,543.</p> <p>That such a machine, permitted so to be used, was, at the time the injury was received, being operated by a person not shown to be an officer or servant of the defendants, does not affect the plaintiff’s right to recover. It is no defence or excuse that the negligence of another or third person concurred or contributed in producing the injury. 4 Wait, Act. & Def. 719. See Wart.-Neg. s. 145.</p> <p>The plaintiff was not chargeable with contributory negligence for not anticipating that the defendants would violate the law imposing upon them the duty of making due provision for the safety of those attending the exhibition or fair, and for not guarding against such • possible violation. Thomp. Neg. p. 1172, s. 18.</p> <p>Even when there is no conflict in the evidence questions of negligence and of contributory negligence are mixed questions of law and fact, to be submitted to the jury, if they involve the judgment of the trier as to the bearing which facts and circumstances as matters of fact, and not merely as matter of law, have upon each other. Vinton v. Schwab, 32 Yt. 612; Whitcomb v. Denio', 52 Yt. 382; Drew v. Sutton, 55 Yt. 586; Fassett v. Roxbury, 55 Yt. 552.</p>

<p>Action of assumpsit upon a subscription to the capital stock of the plaintiff corporation. Plea, nul tiel corporation. Trial in the municipal court of Rutland, La whence, J., presiding. Judgment pro forma for the defendant.</p> <p>The plaintiff offered in evidence a copy of its act of incorporation, certified to by the secretary of state, as follows :</p> <p>“ STATE OF VERMONT, Office of Secretary of State. j</p> <p>“I hereby certify that the foregoing is a true copy of a document entitled ‘ An Act to Incorporate the National Land and Loan Company,’ now in this office; and that the words ‘Approved Nov. 25, 1884, Sam’l. E. Pingree, Governor,’ were written thereon by said Sam’l. E. Pingree on the 25th day of March, A. D. 1885.”</p> <p>It appeared by the journals of the senate and house of representatives for the biennial session of 1884, of the General Assembly, that Senate Bill 159 entitled “ An Act to Incorporate the National Land and Loan Company ” was passed by the senate and house of representatives in due form, .and that the governor in a message to the senate, through his secretary of civil and military affairs, announced in due form that on the 25th day of November, 1884, he had approved and signed said bill; and that such action of the governor was duly communicated from the senate to the house of representatives.</p> <p>The plaintiff also introduced the affidavit of Samuel E. Pin-gree, and the court found the facts as therein stated to be true.</p> <p>Gov. Pingree’s affidavit:</p> <p>“I was the governor of the State of Vermont during the biennial term commencing in October, 1884. During the last days of the session of the General Assembly of 1884 a bill originated in the senate entitled ‘ An Act to Incorporate the National Land and Loan Company,’ and which had passed both houses, was sent to me for my approval. I examined the same carefully and found it approvable and signed it, and my approval was duly transmitted to the senate through the secretary of civil and military affairs. I signed the bill under the signatures of the president of the senate and speaker *of the house; but after I had signed it, it was discovered that they had signed at the bottom of the first page of the bill, being at the end of section two. I intended to approve and did approve the entire bill; and that all things might be regular in regard to the bill, when it was found out that the president of the senate and speaker of the house had not signed at the end of the bill, I erased my signature and the bill was sent specially to them to sign at the end and after that was done I intended to replace my signature at the end. The president of the senate and speaker of the house did sign the bill at the end in regular manner and it came back for mo to replace my signature atMhe end ; but in the hurry of the last hours of the session it was sent to the office of the secretary of state without being clerically completed on mjr part. I intended to have replaced my signature at the end of the bill before it was sent to the secretary of state, but after the session was finally adjourned my attention was called to this bill and the fact that I liad 'not done so, and some time in March, 1885, while at Montpelier, I replaced my signature in regular form at the end of the bill and wrote the words, "Approved Nov. 25, 1884, Sam’1 Filigree, Governor.’ SAM’L E. PINGEEE.”</p> <p>Governor Pingree knowingly and intentionally approved and signed the bill.</p> <p>This was all that was necessary after the bill had been passed by the two houses for it to become a law. Const. Vt. Art. 11.</p> <p>Any signing with the intention of signing in approval is sufficient, whether at the end or in any other part of the bill. Brown Stat. Fra. Sec. 857-; Brink v. Spaulding, 41 Vt. 98 ; Adams v. Field, 21 Vt. 256, 266.</p> <p>The governor having duly approved and signed the bill within the time limited by the Constitution, it became a law, and having once become a law it could not be repealed and become of no effect simply because the governor afterwards desired his signature to be placed at the end in the more regular manner, and erased his name for the purpose of afterwards replacing it at the end.</p> <p>The erasure of the governor’s signature caused the secretary of state not to print the act among the laws, and it may well be doubted whether the bill ever, became a law. Const. Vt. Art. 11.</p> <p>In the case of Fowler v. Pierce, 2 Cal. 165, an act passed on the last day of the session was presented to the governor on the same day and purported to have been approved on that day. It was shown by parol that it was not approved on that day, but on'the next day. Held that the act was void. 12 U. S. Dig. 702,s. 34.</p> <p>In the case of People v. Hatch, 19 Ill. 283, an act was signed by the governor by mistake and a message was delivered to the house of representatives by his private secretary, announcing his approval, and this was not done by the special direction of the governor, but according to usual routine of business, because he had found it on the governor’s table, with his signature attached. The governor, within thirty minutes of the message, sent a notice of the facts to the speaker of the house, which he read aloud. The act was returned with the governor’s signature erased and with his objections thereto. Held that the act never became a law.</p> <p>In the case at bar, it would seem that only a part of the bill was signed.</p>

<p>Insolvent Law. R. L. ss. 1860, 1966. Chattel Mortgage.</p> <p>1. Chattel Mortgage. A chattel mortgage executed more than four months, but recorded only ten days, before the filing of a petition in insolvency against the mortgagor, is valid. B. L. ss. 1860, 1966.</p> <p>1. Affidavit. An affidavit in a chattel mortgage is sufficient, which states that the mortgage was made “ for the purpose of securing .the debt specified in the condition thereof,” where the condition showed that the mortgage was given to secure the mortgagee against liability as an endorser for the mortgagor.</p> <p>3. Jurat. In an action of replevin between the representative of the mortgagee and the vendee of mortgagor’s assignee, involving the validity of a chattel mortgage, the jurat annexed to the affidavit, is conclusive as to whether the parties to the mortgage were sworn.</p> <p>4. Evidence. It was not error to reject evidence that the notes endorsed by the mortgagee had been proved against the insolvent estate before he had taken them up.</p> <p>5. Estobpel. Evidence was offered to show that the plaintiff, just before the mortgage was recorded, told the mortgagee that he must abandon his mortgage, and that he replied that it was good for nothing, as it had not been recorded; Meld, that the offer lacked several of the essential elements of an estoppel in pais as it was not proved that the plaintiff performed any act in reliance upon the reply; and there was no error in rejecting it.</p>

<p> Marriage. Divorce. Duress. </p> <p>A marriage may be annulled when it has been procured by duress; thus, a marriage was annulled on proof that the consent of the petitioner, a boy sixteen years old, was extorted by bastardy proceedings, maliciously instigated by the petitionee without probable cause.</p>

Bill IN Chancery. Hoard on the pleadings, a special master’s report and exceptions thereto, March Term, 1887, Taet, Chancellor. The 1st and 2d exceptions overruled ; the •3d exception sustained; and decree for the orator in accordance with the prayer of the bill. It was further adjudged that there was due the defendants the sum of $21,496.73 ; and the orator was ordered to pay it on or before August 1, 1887, and on payment of it, the defendants were to convey to him.

<p> Bills and Notes. Negotiable Instruments. Consideration. Defence. </p> <p>1. It is presumed that the holder oí a negotiable note is a bona fide holder; and when he produces it in court and proyes its execution, he makes out a prima ■ faoie right of recovery, and is not hound to fortify his title to the note beyond the presumption, when the defence is an entire failure of consideration, and the defendant fails in such defence.</p> <p>2. The defendant executed his negotiable note in part payment for a printing press, and, having used it for sevei-al months in the precise kind of work for which it was purchased, he exchanged it for another machine, realizing for the press more than he was to pay for it. He only complained that it would not do the work so w§li and so advantageously as the vendor represented; Held, that the defendant’s claim came far short of the defence of an entire failure of consideration.</p>

Trespass on the case for flooding the plaintiff’s land. Trial by jury, September Term, 1887, Rowell, J.; presiding. Verdict and judgment for plaintiff. The writ was dated and served February 6, 1886. The plaintiff made no claim prior to the season of 1885.

<p>ACTION on the case to recover for injuries resulting from the bite of a dog. Trial by court, March Term, 1887, Taut, J., presiding. The court assessed the damages at $30, but held that the plaintiff was not entitled to recover, and rendered judgment for the defendant. The facts appear in the opinion of the court.</p> <p>The defendant with knowledge of the vicious nature of the dog is answerable for the injuries.</p> <p>The language of Lee, Ch. J., in Smithy. Pelah, 2 Strange, 1264, has full application : “That if a dog has once bit a man, and the owner having notice thereof, keeps the dog and lets him go about or lie at his door, an action will lie against him at the suit of a person who is bit, though it happened by such person’s treading on tbe dog’s toes ; for it is owing to bis not banging tbe dog on tbe first notice. And tbe safety of the King’s subjects ought not afterwards to be endangered.” Bucldey v. Leonard, 4 Denio, 500 ; Godeau v. Blood, 52 Yt. 251; Hill v. Oox, 54 Yt. 627.</p> <p>The keeping of such a dog is wrongful and at tbe peril of tbe owner, and therefore tbe owner is liable to any person injured by such a dog, without any averment or proof of negligence, in securing or taking care of it, and irrespective of any question of negligence of tbe plaintiff. Woolf v. Ohalher, 31 Conn. 121.</p> <p>Tbe offered evidence was clearly admissible to prove that tbe dog was not securely fastened, and also tbe defendant’s knowledge.</p> <p>Tbe rejected evidence was immaterial. Before a party excepts to tbe rejection of evidence be should make bis offer plain. Daniels v. Patterson, 3 N. Y. 47. In reply to tbe plaintiff’s brief, see Bari v. Van Alstine, 8 Barb. 630; Scribner v. Kelley, 38 Barb. 14; Blackman v. Simmons, 3 C. & P. 138 ; 4 C. & P. 297 ; 1 Esp. 203.</p>

TRESPASS on the case for obstructing a drain. Heard on a referee’s report, September Term, 1887, Rowell, J., presiding. Judgment for the plaintiff to recover $100.00 and costs.

TRESPASS on the case and trover. Trial by jury, March Term, 1887, Taft, -J., presiding. Verdict for the plaintiff to recover $1,548.11, made up as follows : Pair of oxen, $162.76 ; one dynamo, $696.47; marble purchased at West Eutland, Vt., $260.28 ; marble purchased at Salem, N. Y., $428.60.

INDICTMENT for burglary. Trial by jury, June Term, 1887, Rowell, J., presiding. Yerdict, guilty. Exceptions by the respondent.

GeNeral Assumpsit. Pleas, general issue, and Statute of Limitations.. Trial by court, December Term, 1886, Taft, J., presiding. Judgment for the defendant.

<p>AotioN brought under section 1321, Rev. Laws, to recover possession of a house, barn and two acres of land in Bridgeport. The action was commenced before a justice of the peace, and an appeal was taken by the defendants to the County Court. Plea, general issue. Trial by court, June Term, 1887, Rowell, J., presiding. Judgment for the plaintiff for the possession of the premises and for $53.82 damages, which was the amount of rent of said premises for the whole time of defendants’ occupancy after deducting $4 paid.</p> <p>The court found : That on or about the 25th day of June, 1886, the plaintiff and the defendant Howard entered into a verbal contract to the effect that Howard was to pay the plaintiff $16 during the first week in the next July, as and for the rent of the premises for four months, beginning on the 8th day of the preceding May, at which date Howard had come into possession thereof; that Howard had theretofore paid to one Bennett $4 for rent for the first month of his occupancy, and it was agreed between them that that $4 was to go in part payment of the $16, leaving $12 to be paid during the first week of July, and that, if he paid the same as stipulated, said Howard was to occupy the premises for four months from May 8, and was to continue to occupy them for an indefinite time thereafter upon payment of $4 a month in advance, and that said Howard had never paid said balance of $12, or any part thereof.</p> <p>In respect to demand and notice the court found that in the latter part of July the plaintiff, in effect, demanded the rent of Howard at said Bennett’s store, and told him if he did not pay it he must quit the premises, and threatened legal proceedings to recover possession of the premises. The writ in this suit was dated the 5th, and served on the 9th of the following August.</p> <p>The court held, as a matter of law, that this action is the same in legal effect under the statute as the common law action of ejectment for non-payment of rent, and that if any notice to quit was necessary, the facts found, and the bringing of the action itself, were sufficient.</p> <p>As no stipulation for re-entry on non-payment of rent, and no common law demand was found, the plaintiff cannot recover unless the provisions of the Rev. Laws, s. 1259, are applicable to this action. Smith v. Blaisdell, 17 Yt. 212 ; Willard v. Benton, 57-Yt. 286; Van Rensselaer v. Jewett, 2 N. Y. 141.</p> <p>Section 1259 was enacted in 1818 (Sess. Laws, 1818, p. 59) and appeared substantially in its present form in the revision of 1838 (Rev. Stat. chap. 5, s. 14). The act creating the tribunal before which this action was brought, with jurisdiction of cases where the tenant holds possession “without right after the determination of the lease by its own limitation,” is No. 39 of the Acts of 1842. The words extending the jurisdiction to cases of breach of stipulation by the lessee or person holding under him were added by No. 17, Acts of 1850.</p> <p>This court does not call this action an action of ejectment, but "a freehold action ” and ‘ ‘ a proceeding under the statute of 1842” (Middlebury College v. Lawton, 23 Yt. 688); a prosecution under section 30 of the Act entitled “Forcible Entry and Detainer” (Hadley v. Havens, 24 Yt. 520) ; “an action under the statute brought before a justice of the peace to recover possession,” etc. (Barton v. Learned, 26 Vt. 193) •; “Forcible Entry and Detainer” (Davis v. Hemenway, 27 Yt. 590, and Pitkin v. Burch, 48 Yt. 521); “an action brought before a justice of the peace to recover possession,” etc. (.Baldwin v. /Skeels, 51 Vt. 121, and Barnes v. Tenney, 52 Yt. 557).</p> <p>Nor does the court treat it as an action of ejectment. “ The suit may properly be regarded as analogous to the action of ejectment.” Middlebury College v. Lawton, 23 Yt. 695.</p> <p>It is said by-Judge BeNNEtt to be a “ substitute for an action of ejectment” (Ben. Yt. Justice, 154) ; a thing which is analogous to, or a substitute for, another thing, is not identical with it.</p> <p>We submit that the Act of 1842 (Rev. Laws, s. 1321, et seq.) is a statute creating a new tribunal and conferring new remedies in derogation of the common law, and is not to be aided by construction.</p> <p>It is to be borne in mind that this act has created a tribunal of a special and limited jurisdiction for the purpose of trying those specific cases which are mentioned in the act, and no matter can be prosecuted before that, court but such as are within- its express letter. Hadley v. Havens, 24 .Vt. 520; Pitkin v. Burch, 48 Yt. 523; Benjamin v. Benjamin, 1 Seld. 383 ; Farrington v. Morgan, 20 Wend.' 207 ; Davis v. Hemenway, 27 Vt. 594; Willard y. Benton, 57 Yt. 286; Maidstone v. Stevens, 7 Yt. 487.</p> <p>The plaintiff contends that the right to the occupancy of the premises was limited by the terms of agreement; that defendant, by the neglect to pay the $12 during the first week in July, lost all right to the further occupancy of the premises ; that by his own act, though at first lawfully in possession, his interest therein was determined.</p> <p>He had no interest which he could transfer or assign to another. The condition upon which he had occupied up to the time, and upon which his future occupancy depended, had been broken. His continuance in possession after condition broken was at the sufferance of the plaintiff. He was a tenant at-sufferance, and being such he was not entitled to any notice to quit. Hollis v. Bool, 3 Met. 350 ; 1 Hill Eeal Prop. (4th ed.) 394 ; 1 Washb. Eeal Prop. (3d ed.) 541; Ford y. Steele, 54 Yt. 562.</p> <p>The neglect to pay the amount at the time stipulated dissolved the relation of landlord and tenant that had previously existed. It is well settled that when .the relation of landlord and tenant does not exist no notice to quit is necessary. Adams, Eject. (4th ed.) 140 ; Middlebury College v. Lawton, 23 Yt. 688 ; Hadley v. Havens, 24 Yt. 520.</p>

<p>Collector’s Bondsmen, Liability of. Payment, Application of. E. L. ss. 441, 2693. Reference.</p> <p>1. The relation of a tax collector’s bonclsmen to tlie town is that of sureties; and they are not to be held beyond the precise terms of their contract.</p> <p>2. “When a tax collector makes a payment of taxes collected, and fails to state how they should be applied, and when the treasurer also fails to notify the bondsmen that no application has been made, as provided by statute — R. L. s. 441— an arbitrary application made by the treasurer is not conclusive. Money collected and paid to the treasurer when the bondsmen were sureties should be applied in extinguishment of their liability, unless they consented to a different application.</p> <p>3. -To determine the liability of the bondsmen it is necessary to ascertain what tax-bills were delivered to the collector during the time named in the bonds, the amount collected and when collected, and the amount paid to the town treasurer and when paid; and where these facts are not found by the referee the case will be re-committed.</p> <p>4. It is not a breach of official duty on the part of a collector to neglect to account for uncollected tax bills where no warrants were annexed to them.</p> <p>5. A list is not legal which is not signed by a majority of the listers.</p>

<p> Chattel Mortgage. Replevin. Attaching Creditor. Assignment. </p> <p>1. When a creditor of a mortgagor attaches a part of his property covered by a chattel mortgage, and tenders to the mortgagee the amount due to him, and he accepts it and delivers the note and mortgage to the creditor, it effects an equitable assignment of the debt and mortgage.</p> <p>2. And, if the creditor subsequently obtains an execution against the mortgagor and delivers it with the note and mortgage to an officer, who, under the creditor’s directions, takes the property, a part attachable and a part not, into his possession, the mortgagor cannot maintain replevin for that which was exempt.</p> <p>3. In such case, the court refused to decide whether the creditor had a right to apply any portion of the value of the non-altachable property in reduction of the mortgage debt, to enable him to satisfy his execution out of the excess.</p>

<p>Assumpsit for breach of warranty in the sale of a horse. Plea, general issue. Trial by jury, June Term, 1887, Rowell, J., presiding.'</p> <p>The court ruled for the purpose of testing the question that the defendant did convey a valid title to the horse to the plaintiff, as against Hope ; that the plaintiff could not recover on his own offer; and directed a verdict for the defendant.</p> <p>The principal question is whether the defendant could pass a valid title to the horse. The title, as well as the damages, may be tried in an action of replevin. Fish v.. Wallace, 51 Yt. 418.</p> <p>In Oollavier v. Page, 35 Yt. 391, the court say as follows : “ If the case be tried upon the merits, then of course the question of title, or right of possession, is tried, and then if the title or right of possession is found for the defendant, he is entitled.to a judgment for a return as a conclusive judgment in chief.”</p> <p>The same doctrine is held in otherstates. Armel v. Leyton, 33 Kan. 42 ; Pierce v. King, 14 R. I. 611; Her die v. Young, 55 Pa. St. 176 ; King v. Ramsey, 13 Ill. 619.</p> <p>During the pendency of the suit, the property does not vest in the plaintiff; if it did, there would be no necessity of a judgment. Lovett v. Burlchart, 44 Penn. 173; White v. Dolliver, 113 Mass. 402 ; 68 Penn. St. 221. If it appears on trial that the defendant is entitled to a return of the goods, he has judgment therefor. R. L. sec. 1233. The defendant could give the plaintiff no better trial than Stapleton had; hence Farnham got no title. Lockwood v. Perry, 9 Met. 440, is decisive of this case. Saunderson v. Lace, 1 Chand. (Wis.) 231. Pennsylvania and Delaware are the only states in which a plaintiff in a replevin suit can give a claim-property bond and pass the title by salependente lite. Morris, Replevin, 281 el seq. ; Hocker v. Striker, 1 Dali. 245; Pierce v. Hum-phreys, 14 S. &. R. 23, 25 ; Balsley v. Hoffman, 13 Penn. 603; Weaver v. Lawrence, 1 Dali. 167.</p> <p>For the purpose of trade, possession of personal property is prima facie evidence of ownership. Dick v. Oooper, 64 Am. Dec. 652 ; Magee v. Scott, 55 Am. Dec. 49.</p> <p>The laws of this State, do not, in terms, determine what protection shall be given to third parties purchasing personal property awaiting the action of the courts in determining its title; and it devolves upon this court to determine what constitutes an “unlawful” detention, within the meaning of section 1230 R. L. And not having been passed upon, the court will, under proper legal restrictions, settle the question in such a way as will best conduce to the public welfare and protect the rights of all parties.</p> <p>Replevin will not lie for an illegal detention of chattels, when a party comes into p session of them by delivery from a person having special property therein. Marshall v. Davis, 1 Wend. 109 ; Garpenter v. Stevens, 12 Wend. 589.</p> <p>In the common law action, in distress for rent, it is held that the bond is substituted for the property. Woglam v. Oowperthwa.it, 2 Dali. 68; Frey v. Leep'er, 2 Dali. 131; Wells, Replevin, 469.</p> <p>It is the well settled law in Pennsylvania, that a plaintiff in replevin, who has given a good bond and has possession, can sell or dispose of the chattels taken, and pass a title to the purchaser, being answerable on his bond. Stewart v. Wolfe, 5 Central Rep. 681; Bane v. Lyle, 68 Pa. 64; Morris, Replevin, 248 (230) ; Gray v. Wilson, 4 Watts (Pa.), 39; See also Aclcer v. White, 25 Wend. 613.</p> <p>The defendant’s remedy is on the bond. Morris, Replevin, 286. When he retains the property and gives a claim-property bond, the plaintiff’s title, if he had any, is turned into a claim for damages.</p> <p>When the property is likely to perish, the plaintiff is justified in selling or consuming it. Wells, Replevin, 480. See Gordon v. Jenny, 16 Mass. 465.</p>

TRESPASS on the case for the alleged negligence and unskill-fulness of the defendant as a physician and surgeon in his professional treatment of the plaintiff while a patient of the defendant, whereby the plaintiff was injured. Plea, general issue. Trial by jury, December Term, 1886, Taft, JV, presiding. Verdict for the plaintiff.

<p>Petition to foreclose an equitable lien. Heard on the pleadings, December Term, 1887, , Tyler, Chancellor. Decree of foreclosure for the petitioner. The case appears in the opinion.</p> <p>The reservation gave the petitioner no right to a decree of foreclosure. It is repugnant and inconsistent with the grant. Bac. Abr. Tit. Grant; Athington v. Bishop of Chester, 1 H. Bl. 418 ; Bish. Con. s. 386; 4 Greenl. Cruise, 244; Rose v. Bunn, 21 N. Y. 278 ; Hutchinson v. Ford, 15 Am. Rep. 711; 46 Am. Dec. 715.</p> <p>All the cases upholding such lien in this State are cases of lease, and go upon the express ground that the lessor is the absolute owner of the soil. Leland v. Sprague, 28 Vt. 746; Cooper v. Cole, 38 Vt. 185.</p> <p>We can find no case where such a reservation in a deed conveying the fee has been held good. The point was not raised in Batchelder v. Jenness, 59 Vt. 104; and the decision, so far' as it has any bearing, is adverse.</p> <p>As to the crops, it is an attempt to reserve something from the grant which is not included in it. A warranty deed does not convey the crops which may grow upon the land after the grant.</p> <p>The crops of each year are security for the interest of such year. Buckmaster v. Needham, 22 Yt. 617.</p> <p>A reservation in ,a deed of real estate, of the crops to be thereafter grown thereon, to secure the payment of the purchase money, or rent, is a valid reservation. Batchelder v. Jenness, 59 Yt. 104; Oooney v. Hayes, 40 Yt. 478; Smith v. Atkins, Í8 Yt. 461; Baxter v. Bush, 29 Yt. 465 ; Bellows v. Wells, 36 Yt. 599 ; Cooper v. Cole, 38 Yt. 185; Dicker-man v. Bay, 55 Yt. 65.</p> <p>If crops thereafter to be grown can be conveyed by the owner of the land, and the land retained, the owner can retain the crops and sell the land. Walworth v. Jenness, 55 Yt. 670.</p>

<p>Taxation. Evidence. Residence. Practice. Act of 1882, Wo. 2, s. 17. . Act of 1884, Wo. 3.</p> <p>1. PRACTICE. In an action of replevin, where the verdict was for the defendant, if there was error in excluding evidence relating to damages, it is not available to the plaintiff.</p> <p>2. Evidence. Public Documents. United States Census. The Compendium of the tenth Census, a book compiled pursuant to an Act of Congress, and printed at the government printing office, is admissible to show the population of a town, when it is a material fact.</p> <p>3. Taxation. Listers. Judicial Action. The action of listers is judicial under the Act of 1882, No. 2, s. 17, when, after doubling the amount obtained, they make a further assessment of a sum “ which will, in their judgment,” make up the amount of the taxpayer’s taxable property; and in an action of replevin to recover goods taken by a collector in satisfaction of a tax, evidence is not admissible to attack the assessment of the listers by showing that they had no facts on which to base it.</p> <p>4. Evidence. The inventory and affidavit used by the plaintiff before the listers were not admissible in his favor.</p> <p>5. Evidence. Intention. Residence. Evidence as to one’s intention to engage in business in a particular place is'not admissible to show his intention as to making that the place of his legal residence.</p> <p>6. Evidence. Residence. In an action against a tax collector, where it is material to show the plaintiff’s residence, evidence is admissible to prove that he registered and voted in another state the same year of the assessment complained of, if coupled with an offer to prove that the laws of such state required a residence there of one year before voting.</p> <p>7. The court will pass upon an exception as it stands, though apprehensive that by-inadvertence it does not present the question just as it came up in the court below.</p> <p>8. Evidence is not admissible to show what measures the plaintiff took after the first of April, and without success, to have his name put on the New York City Directory.</p> <p>9. The question being whether the plaintiff’s domicile was in New York or in this State, there was no error in compelling him, on cross-examination, to state whether he paid any taxes in New York.</p>

Petition to foreclose a mortgage. Heard on the pleadings and agreement, December Term, 1887, Royce, Chancellor. Decree that the defendants pay the sums of money named in the petition or be foreclosed. The case is stated in the opinion.

<p>Assumpsit. Trial by jury, December Term, Rotor, Ch. J., presiding. Judgment for tbe plaintiff, and that tbe trustees were chargeable. Tbe plaintiff’s claim was - for boarding tbe defendant and bis wife. Tbe plaintiff testified that be was a blacksmith and at bis shop when bis wife came to him at tbe time tbe contract was made; that the defendant was at tbe plaintiff’s bouse about five rods from tbe shop ; and that tbe arrangement between tbe parties was made by tbe plaintiff’s, wife. The plaintiff, on being asked what word be sent by his wife and what he told her, testified : “I sent by her to him that they might come. I told her to tell him to come, if she would put up with them, and he would pay me for their keeping. I bad kept him long enough for nothing.”</p> <p>To the admission of this testimony tbe defendant excepted.</p> <p>Tbe plaintiff, in order to show a contract between himself and the defendant, introduced as a witness, his wife, and offered to show by her a state of facts, which, he claimed, constituted her the agent of her husband in making a contract witli her father, to which the defendant objected, claiming that before she could be admitted as a witness she must have been proven to have been the agent of her husband, with reference to the matter about which she was to testify, and that this should be proved by testimony other than that of the wife herself, as a groundwork for the admission of the wife’s testimony.</p> <p>The wife was allowed to testify as follows :</p> <p>Q. Mrs. Martin, you may state whether you made the arrangement which your husband directed you to make with your father? A. Yes, sir. Q. What'was that arrangement? A. That arrangement was that father sent me to the shop to ask my husband if he could come back and live with us if he paid for his board. My husband said, yes, he could ; because he had kept him long enough for nothing; if he calculated to pay for his board, he might come. Q. And you took that word right to your father? A. I did, sir.</p> <p>It was agreed as to the trustee, that the defendant in November, 1886, went to the Rutland Savings Bank at its rooms, “ and produced a check from the United States Pension Office, supposed to be pension money, for the sum of $948.33, which he was then receiving; of which check he wanted $248.33 in currency, and the same was paid him by the bank. The balance of the sum, $700, he deposited in said savings bank and took from it a deposit book, - evidencing the amount of his deposit.”</p> <p>The plaintiff’s wife was not a witness unless proved to be his agent; and it is submitted that she was not such. R. L. s. 1005. He was practically present. Bstabrooks v. Prentiss, 34 Yt. 457; 1 Best. Ev. 175. She was- the defendant’s agent. Oreutt v. Cook, 37 Yt. 519 ; Town v. Lamphire, 37 Yt. 56 : Goodrich v. Tracy, 43 Yt. 220.</p> <p>The statute evidently applies to transactions in the husband’s absence, unless they are peculiarly within the line of the wife’s duty. Cases, supra.</p> <p>“Pension money kept as a fund, or invested for keeping and use as current circumstances may require, would not be subject to attachment by trustee process or otherwise in suits against the pensioner.” Hayward v. Ciarle, 50 Yt. 617.</p> <p>This view is supported by both the majority of the court and the dissenting opinion in Stockwell v. National Bank of. Malone, 37 Hun, 583 ; Burgett v. Handler, 35 Hun, 647.</p> <p>The pension check was “sold” to the bank, and hence it was not chargeable under the statute of this State. R. L. s. 1076 ; White v. Capron, 52 Yt. 634.</p> <p>Friend v. Oarcelon, 77 Me. 25, appears to be a leading-case and will be relied on ; but the court there held that the pension check would be exempt until the money actually came into the hands of the pensioner; that he could purchase exempt property which could not be reached by attachment.</p> <p>1. The plaintiff’s testimony and his wife’s not only tended to show, but clearly established, the relation of principal and agent, and brings the case directly within .the statute which removes the disqualification of the wife. R. L. s. 1005.</p> <p>The fact that the husband was in his shop, near by his dwelling-house, when the arrangement was entered into by the wife as agent, does not militate against the authority of the wife to act and to tell what she did in respect thereto in court. Lunay v. Vantyne, 40 Yt. 501.</p> <p>2. The trustee is chargeable.</p> <p>The case turns upon the construction of section 4747 of U. S. Rev. Stat. The case of Haywood v. Clark, 50 Yt. 612, does not settle the construction of this statute in this State, for the question was not before the court. The obiter dictum therein is not sound law, and has not been followed in the later cases.</p> <p>The statute does not apply to moneys which have been paid to a pensioner and loaned' by him. Spellman v. Aldrich, 126 Mass. 113; Cranzv. White, 27 Kans. 319 ; Triplett v. Graham, 58 Iowa, 135; Jordain v. Fair ton Sav. Fund Ass’n, 44 N. J. 376; Friend v. Garcelon, 77 Me. 25; Cav-anaugh v. Smith, 84 Ind. 380; Faurete v. Carr (Ind.), 9 N. E. Rep. 350; Rozelle v. Rhodes (Penn.), 9 Atl. Rep. 160.</p> <p>A law of Congress which should exempt the pension money-after it reaches the hands of the pensioner would be unconstitutional.</p> <p>It was held in Spindle v. Shreve, 111 U. S. 542, that what property is exempt from execution is determined by the local laws where the property had its situs. FrinJc v. CFfeil, 106 U. S. 272.</p>

<p> Will and Oodicil, Construction of. </p> <p>A will and codicil form one instrument and are to be construed together; thus, an additional bequest in a codicil is subject to the conditions of a clause of sur-vivorship in the will to the same legatee, where no repugnancy is created by such a construction.</p>

<p>Will. Trustee. Powers, by whom may be exercised. R. L. s. 2291.</p> <p>1. Discretionary powers given to a trustee in a will, and also expressly given to his heirs, may after Ms decease be exercised by bis beirs.</p> <p>2. In sucb case' all tbe beirs should be appointed trustees.</p>

<p>Assumpsit with count for us© and occupation. Trial by jury, May Term, 1887, Walker, J., presiding. Verdict and judgment for the plaintiff to recover $1090.43.</p> <p>The plaintiff’s evidence tended to show, and was uncontra-dicted', that he leased the premises to the defendants for the storage of a large quantity of machinery. The attorney of the defendants admitted that they should pay $45 per month to the commencement of the suit. The only question in dispute submitted to the jury, was whether after March 31, 1886, the rent should be increased to $60 per month.</p> <p>There was no evidence before the jury tending to show that the defendants ever agreed to pay said rent of $60 per month unless the same is implied by law by their continuing in possession after receiving said notice.</p> <p>It appeared that the defendants and one Harlow as co-trustees of Jones, Lamson & Co., and their creditors, jointly occupied the premises and that R. L. Jones, acting in behalf of the trustees, made the trade shortly before May 13, 1885. The plaintiff testified that Jones came to see him on what terms the machinery could remain ‘ ‘ there for a time, not to exceed six months.” * * * “ I told him after a little talk that it could remain there on the same terms that it had remained, — the same terms that Jones, Lamson & Co. had paid me from December 10, 1884.” The' court charged the jury in part: “Under that arrangement these defendants were to pay $45 per month, the understanding being that the probable occupancy would not exceed six months, and they, wont into possession under that contract. They paid no rent, and they have occupied the premises from that time down to the present. Prior to the 1st of April, 1886, Mr. Amsden gave notice to the defendants that, if they remained and occupied the premises after the 1st of April, 1886, they must pay him $60 per month. These notices are in evidence some of them, and you have heard the proof.</p> <p>‘ ‘ I charge you in accordance with the request of the plaintiff that these defendants remaining in the possession and occupancy of that property after the 1st of April, 1886, under this notice that they should pay $60 per month if they remained after the first of April, the law implies a promise on their part to pay $60 from the 1st of April down to the time plaintiff seeks to recover, 13th November, 1886.”</p> <p>The law does not imply a promise to pay increased rent from the bare fact that the defendants remained in possession after notice of increase of rent after a certain time.</p> <p>The fact that they continued in possession, by itself proves nothing positively. It was a circumstance proper to be submitted to the jury to be considered by them in connection with all the other evidence in the case.</p> <p>The fact of assent or making no objection was just as essential to be proved by the plaintiff as the fact • of continuing in possession. The court will not presume that defendants assented or made no objection, especially when it finds them objecting to and resisting the. claim.</p> <p>The court should have submitted the case to the jury to find the facts from all the evidence before them. Whitney v. Sullivan, 7 Mass. 107.</p> <p>The notice of' increase of rent was invalid. It was an attempt to raise the rent during the term. The original lease was for. six months. Defendants held over with consent of plaintiff, and hence were holding for another term of six months, which would not expire until May 13th, 1887. A tenant; holding over after the expiration of his lease, even though but for a short time by permission, is in on the conditions and for the term of the original lease.</p> <p>A tenancy ‘ ‘ from year to year ” will be inferred by a holding over after the expiration of the term by permission of the landlord. 4 Wait Act. & Def. 203, citing Jackson v. Salmon, 4 Wend. 327 ; Right v. Darby, 1 Term, 162 ; Kelley v. Patterson, 43 L. J. C. P. 320 ; Oonway v. Starkweather, 1 Denio, 113.</p> <p>A month’s notice was necessary. 32 Yt. 39 ; 43 Yt. 172 ; 1 Wash. Real Prop. 291, 383, 387.</p> <p>There was no error in the charge of the court, that the law implied a promise to pay $60 per month by the defendants after April 1, 1886, in view of the notice given them by the plaintiff. The written notices terminated the old lease at $45 per month, and it was the duty of the defendants to vacate unless they impliedly promised to pay the increased rent. It would be a fraud upon the plaintiff to hold otherwise, when the defendants gave no dissent, but stood silently by and saw him making repairs made necessary by their continued occupancy. In numerous cases the law implies a promise from the circumstances. Paddock v. Kittridge, 31 Yt. 378, 384; Ives v. Hulet, 12 Yt. 314, 327. There is “ a sort of moral estoppel,” applied in such cases, says BeNNETT, J., in Ivesy. Hulet, supra. See 1 Par. Cont. 476; Gilson v. Bingham, 43 Yt..410, 415; Kellogg v. Denslow, 14 Conn. 411; Boughton v. Standish, 48 Vt. 594; Fsty & Dutton v. Read,. 29 Vt. 278 ; Callender Co. v. Marshall, 57 Vt. 235.</p> <p>But this very question has been decided by the courts ; and it is held that if a tenant holds over after the expiration of the lease, when the landlord had notified him that if he retained possession he must pay a higher rent, he is deemed to have assented to pay the increased rent. Hunt v. Bailey, 39 Mo. 257 ; Binhley v. Walcott, 10 Heisk. 22 ; Grigsby v. Fullerton, 57 Mo. 309 ; Mach v. Bent, 5 Hun, 28 ; Despan v. Wal-bridge, 15 N. Y. 374; Roberts v. Hayward, 3 C. & P. 432; 14 E. C. L. 381; Wood, Land. & L. s. 13.</p>

<p> Pleading. Sale. Demand. </p> <p>1. "When one sells property and agi-ees to accept in payment a note payable on time with security, and the buyer reiuses to give the note and security, the seller can sue at once.</p> <p>2. And in such case, where the seller requested the buyer to take the property and pay for it as agreed, and he refused to do so, no formal demand for the note and security was necessary. -</p>

<p> Mortgage. Statute of Frauds. Assumpsit. Pleading. Landlord and Tenant. </p> <p>1. There may he an adjustment and recovery on what has been done under a contract which was within the Statute of Frauds. Thus, the plaintiff, on the defendant’s request made by letter, purchased a farm for him, but retained the title in himself as security for the price, and the defendant occupied it as owner for several years, paying some of the interest and a part of the taxes, ¥ making repairs, and then abandoned the farm; Held, (a) that the defendant in effect was a mortgagor in possession, and that his abandonment operated as a foreclosure; (&) and that the plaintiff was entitled to recover the excess of the debt above the value of the premises.</p> <p>2. The farm was encumbered with mortgages which the plaintiff assumed when he purchased it; Held, that as fast as he made a payment on them he had a right to charge it to the defendant as made at his request.</p> <p>3. A reservation in the deed from the original owner to the plaintiff of waste water does not relieve the defendant, although there was nothing in the letter ' authorizing the purchase as to it, — as his taking possession of the promises was a ratification.</p>

<p> Salé. Warranty. Declarations. Off-set. </p> <p>1. In the sale oí an engine and boiler, the vendor’s declarations as to their quality constitute a warranty that they are as described, when the declarations are relied on by the buyer as the basis of the contract, and the vendor so understands it.</p> <p>2. A defect in a steam chest, readily discernable on taking off the cover, is not a latent defect.</p> <p>3. The plaintiff sold an engine and boiler with the fittings to the defendants and received the pay therefor; and when the plaintiffs learned that there was difficulty with the governor, they made a proposition to furnish another and take back the old one at a difference of $45, which offer was accepted without condition; Held, in an action to recover the $46, where the defendants were allowed damages under a plea in off-set for defects in the engine, that plaintiffs were entitled to recover the $45 on the ground that the acceptance was according to the terms of the offer.</p> <p>4. A plaintiff who has made two parties defendants is in no situation to deny a counter-claim on the ground that it did not accrue to both and when he had always treated the deal as with both.</p>

<p>Appeal from the Probate Court.</p> <p>The appellant filed the general counts in assumpsit.</p> <p>Heard on the report of a referee, December Term, 1887, Tyler, J., presiding. Judgment pro forma in the Blodgett case to recover the sum of $455.83 ; in the Edson case, the sum of $6,406.45 ; and in the Converse case the sum of $629.89. Exceptions by the plaintiffs. The facts are sufficiently stated in the opinions of the court.</p> <p>The only question is as to the time when the reckoning of interest should commence. The commencement of interest does not hinge on the time or fact of a demand. Hall v. Peclc, 10 Vt. 474; Mansfield v. Wilkinson, 26 Iowa, 482; Lewis v. Bradford, 8 Ala. 652; Story, Agency, ss. 179, 205. It was the duty of Mr. Converse to keep the money on hand un-invested if he wished to be relieved from payment of interest. McJSfeal v. Hodges, 83 N. C.-504.' In New York it has been held that an executor employing funds in business is chargeable with compound interest. Bemoick v. Halsey, 4 Eedf. (N. Y.) 18. And the same has been held in New Hampshire. Griswold v. Chandler, 5 N. II. 492; Halsey v. Farmers’ & Mechanics’ Bank ', 26 Vt. 104; 1 Am. Lead.. Cases, 522; Hinckley v. Gilman, Clinton & Springfield B. B. Co. 100 U. S. 591; 1 Perry, Trusts, p. 570; 2. Wend. 77 ; Perkins v. Hollister, 59 Vt. 348.</p> <p>“As the administrator mingled the trust money with his own, he is chargeable with the highest legal rate of interest, and can be allowed nothing for his services in caring for the same.” McGloskey v. Gleason, 56 Vt. 264; Spalding v. Wakefield, 53 Vt. 660; Farwell v. Steen, 46 Vt. 678; Am. Law Eeg. (Jan. 1887) p. 27 ; 2 Esp. 702.</p> <p>Mr. Converse was executor de son tort as to Mrs. Converse’s estate. Shaw v. Hallihan, 46 Vt. 389 ; Maxwell v. Briggs, 17 Vt. 176; 2 Sedgw. Dam. 186-9. See Hauxhurst v. Hovey, 36 Vt. 544.</p> <p>The matter pertaining to Arnold’s estate cannot be settled except in a suit brought by his representatives. E. L. s. 2071. On the facts found in the Blodgett case Mr. Converse was not liable to pay interest unless he actually received interest, unless a demand was made for the principal, or until he was in default in not paying when he ought to have paid. The relation of debtor and creditor could not have existed until demand was made. Hall v. Peck, 10 Vt. 478; Chit. Con. 238 ; 1 Chit. PI. 330 ; Miller v. Clark, 5 Lansing, 388; Williams v. Stoors, 5 Johns. 353 ; Ghesworth v. Edwards, 8 Yes. 46. An executor has no authority to loan money which a legatee is entitled immediately upon demand. Jacot v. Emmett, 11 Paige, 142.</p> <p>It seems that there is a distinction between an action for not accounting, and an action for not paying over, the proceeds of goods sold, and that in the former case it is enongh to show neglect to account within a reasonable time to maintain the action. Gooley and Bangs v. Betts, 24 Wend. 203.</p> <p>Interest is only allowable when there is a contract to pay it, either express or implied, or when the party is legally in default. HauxJmrst v. Hovey, 26 Yt. 544; Pawlet v. Sandgate, 19 Yt. 621.</p> <p>When there is no express contract to pay interest no implied contract arises, and it is not recoverable, except when the parties fail'to claim payments after it was their duty so to do. Brainerds v. Ghamplain Trans. Go. 29 Yt. 154; Sprague v. Sprague, 30 Yt. 483; Evans v. Beclcwith, 37 Yt. 285.</p> <p>An agent receiving money for his principal, or an attorney for his client, is not liable for interest thereon, unless he has received special instructions to remit as fast as collected, or is in default in neglecting to render an account. Hauxhurst v. Hovey, supra; Jacot v. Emmett, supra; Miller v. Glarlc, supra; Williams v. Stoors, supra; QhedwortJi v. Edwards, supra.</p>

<p> Executors and Administrators. Homestead. Widow. Practice. </p> <p>1. The administrator was licensed to sell the real estate at public or private sale, and sold it at public action to the highest bidder; but before making the deed he was informed that he could sell it for more than the auction price, and although no memorandum had been made, believeing that the sale was binding upon him, he consummated it. Neither bad faith nor neglect of duty was found; Held, that he was chargeable with only what he received for the land.</p> <p>2. When a homestead is a part of premises encumbered by a mortgage executed by a husband and his wife, it is under the burden of hearing its proportion of the mortgage debt.</p> <p>3. A widow by consenting that the administrator'of her deceased husband’s estate might sell under order of court premises in which she has a homestead interest, does not waive her rights to the homestead fund.</p> <p>4. But the court declined to decide whether the administrator could use the homestead fund to pay the expenses of this appeal, which was taken by the widow from the order of the Probate Court allowing his account, as that question is not before the court.</p>

Case for negligence. Heard on a referee’s report, exceptions, and motion to recommit, September Term, 1887, POWERS, J., presiding.. Judgment on the report for tlie damages found. Reversed.

Book AccouNT. Heard on an auditor’s report and except-tions thereto, September Term, 1887, Powers, J., presiding. Judgment for the plaintiffs.

TRESPASS and trover. Trial by jury, April Term, 1887, Ross, J., presiding. Verdict for the defendant. The return on the-writ stated that the officer attached the property February 9, 1885, and that on February 28,1885, he delivered a copy to the defendant. It appeared that the plaintiff in this suit sent his note by the defendant in the original suit, notifying Reynolds of the attachment of the machine in his possession.

Motion to set aside a verdict on the ground that one of the jurors was an alien. Heard April Term, 1887, Boss, J., presiding. Motion pro forma overruled, and judgment rendered on the verdict. The facts appear in the opinion. The presumption of citizenship drawn from the fact of' residence, ceases when the fact of foreign birth appears. So does the presumption of the regularity of a verdict, which only amounts to this, that irregularity will not be presumed. 2 Best, Ev. 360.

Assumpsit upon a promissory note. Heard on a referee’s report, April Term, 1887, Ross, J., presiding. Judgment for the defendant. The case appears in tbe opinion. Held: the law will apply according to justice and equity. It is not the secret intention of mind. It is the intention of mind expressed that determines the application to be made, or any intention inferred from the circumstances of the case.

Bill in chancery for accounting. Heard on the pleadings and a master’s report, April Term, 1887., Ross, Chancellor. Decree that the bill is taken as confessed against all the defendants except Wright & Hunter. The orator is to have a decree against the Swanton-Tanning Co. for the sum of $28,884.24 and interest since January 1st, 1887, and his costs with the right to take execution against the company, and have it satisfied upon any property of the company.

<p>Appeal from order of removal of one Sally J. T. Ring, a pauper. Heard on an agreed statement, June Term, 1886, Eowell, J., presiding. Judgment that the pauper was unduly removed. Affirmed.</p> <p>It was agreed that said Sally was bom and always lived or bad ber borne in Topsbam until ber marriage in 1869, and ever since, as hereafter appears ; that ber household goods remained there until the most of -them were sold by the overseer of the poor in said town in October, 1884; that the pauper was insane all the time from the appointment of a guardian, in 1872, and was controlled and supported by the guardian in said Topsham from her own means until the overseer took charge of her in June, 1884, since which time she has been supported by the town; that she had no fixed home, but her household furniture was stored in said Topsham ; that since her marriage said Sally has.not had any home in any other town than said Topsham, up to the time of making the order of removal; that she never kept house, and only remained in one place so long as the guardian and those who took care of her could agree; that many times she was compelled by force to stay at a particular place, but generally was controlled by persuasion and devices of all kinds; that sometimes she left said town of Topsham, but was returned by the same means. The other facts are sufficiently stated in the opinion.</p> <p>The legal settlement of the pauper is in defendant town, unless she gained one since the death of her husband. Brook-field v. Hartland, 10 Yt. 424; Royalton v. West Fairlee, 11 Yt. 438; Newark v. Sutton, 40 Yt. 261; R. L. s. 2811. It cannot be inferred that the pauper had a home in Topsham, because she had no. home in any other town. Middletown v. Poultney, 2 Yt. 437; Newbury v. Topsham, 7 Vt. 410; Bristol v. Rutland, 10 Yt. 574. She never had any legal residence in Topsham after the death of her husband, or, at least, after the appointment of a guardian. It does not appear that she remained there continuously for seven years. She never had any fixed home anywhere; and she was incapable of having or intending to have one at any place. Woodstock v. Hartland, 21 Yt. 563; Ryegate v. Wardsboro, 32 Yt. 414; Budlow v. Landgrove, 42 Yt. 139 ; Brownington v. Charleston, 32 Yt. 411; Jamaica v. Townshend, 19 Yt. 267 ; Hartford v. Hartland, 19 Yt. 397; Tunbridge v. Norwich, 17 Yt. 493.</p> <p>Some of the essential elements of a legal residence are capacity for choosing; the fact that a choice was made and continued, with the fact of continual residence or home for seven years. All these facts must concur, but neither exists. If the guardian could will and act for his ward, it must appear that he did so as fully as she would be required to in order to gain a settlement. But the guardian could not thus act for her.</p> <p>It is said Holyoke v, Haskins, 5 Pick. 20 : “ It is clear that by our laws a guardian has the same power over his ward that a parent has over his child.” Admit this, and then the case is with the plaintiff; for a parent cannot change the legal settlement of his unemancipated child by changing the child’s residence. Woodstock v. Hartland, 21 Yt. 563; Andover v. Canton, 13 Mass. 547; Salisbury v. Fairfield, 1 Eoot. (Conn.) 131; 72 Me. 204; Daniel v. Hill, 52 Ala. 430.</p> <p>The pauper retains 'the residence of her husband, because she had not gained one in her own right. Bethel v. Tun-bridge, 13 Yt. 445.</p> <p>It is the rulé of law that the old residence continues until a new one is acquired, so that every one has a residence somewhere. Abington.r. Bridgewater, 23 Pick. 170. It would be a curious doctrine, and one that would introduce serious confusion into our law on the subject of taxation,, voting, settlement of estates, and jurisdiction of courts, if a person ceased to reside anywhere as soon as he was afflicted with insanity. Roékingham v. Springfield, 4 New Eng. Eep. 372; 59 Yt. 521.</p> <p>In Maine, Massachusetts and Connecticut, under statutes identical with ours, so far as the matter of residence is concerned, it is decided that persons are capable of residing, and do reside within the contemplation of the pauper law, though insane and under guardianship. Gardner v. Farmingdale, 45 Me. 537 ; Auburn v. Hebron, 48 Me. 332; Corinth v. Bradley, 51 Me. 540 ; Chicopee v. Whately, 6 Allen, 508 ; Plymouth v. Waterbury, 31 Conn. 515.</p> <p>The legislature evidently thought that a special statute (Eev. Laws, s. 2813) was necessary to prevent the residence of a pauper removed to a lunatic asylum from continuing in the town from which he was removed. This section determined the decision of the court in Peacham v. Weelcs, 48 Yt. 73. The guardianship does not suspend the residence. E. L. s. 281, cl. 5. If a person is forcibly moved away from the place where he has been residing, his residence still continues at the old-place. Northfiéld v. Vershire, 33 Yt. 110.</p>

Assumpsit in general counts. Heard on a referee’s report, December Term, 1886, Walker, J., presiding. Judgment for the plaintiff. Affirmed.

<p>Deed absolute in form, when a Mortgage. Fraud. Pleading. Practice. Bill to Redeem. Oosts. Mortgagee in Possession. R. L. ss. 1955, 4155.</p> <p>1. A deed absolute in form, but given to secure a debt and also to cover tbe grantor’s property for tbe purpose of preventing attachment, is a valid mortgage between tbe parties; and, on payment of tbe debt, tbe grantee will be ordered to reconvey, on tbe ground that be cannot take advantage of bis own fraud upon others to defraud tbe grantor.</p> <p>2. Although a bill must be framed to tbe circumstances that exist when tbe action is brought, yet the decree will be affirmed when it is correct in form and amount, if tbe bill has been formally amended; thus, when tbe bill was brought to redeem, tbe debt bad not been paid; but it bad been, — and there was a balance due the orator, — prior to tbe bearing before tbe master, by applying on tbe debt the use of tbe premises occupied by tbe defendant in possession under bis mortgage; Held, (a) That tbe orator would have been entitled to a decree, if bis bill had been properly framed; (6) That tbe bill should have contained an offer to pay any balance found due tbe defendant on accounting; (c) That the cause should be remanded for amendment of the bill, and tbe decree ordering tbe defendant to redeed and pay tbe balance due tbe orator, should be affirmed.</p> <p>3. Tbe orator-, after tbe condition of tbe mortgage bad been broken, rented tbe premises (a pasture), and tbe mortgagee notified tbe tenant that be must pay tbe rent to him; and tbe mortgagee also turned some of bis own stock in in that season, and afterwards used tbe pasture to some extent; Held, on a bill to redeem, that tbe defendant took possession, and was accountable for such rents and profits as be ought to have received.</p> <p>4. When a debtor, owing both a secured and an unsecured debt, makes a general payment without any direction, and no application is made, it should be applied to tbe unsecured debt.</p> <p>5. In a suit to redeem tbe defendant was not allowed costs on false issues raised by bis answer, and costs were allowed tbe orator.</p>

COVENANT in two counts. The first was for breach of covenant of ownership of a piece of land, six feet wide and fifty feet long, in the village of South Royalton, from which the plaintiff was ousted by Aaron N. King; the second for a breach of covenant to warrant and defend said land, claiming as damages plaintiff’s time and expenses in the chancery suit in which said King recovered the same. Trial by jury, December Term, 1886, Walker, J., presiding.

<p>EjectmeNt to recover the seisin and possession of a farm of land in Berlin. Heard on an agreed statement, March Term, 1887, Veazey, J., presiding'.</p> <p>Judgment pro forma and without hearing for the plaintiff for the seisin and possession of the farm in question except the two pieces set to Norman D. Sawyer in his distributive share in his father’s estate; and it was also pro forma adjudged that the defendant or her children have a homestead right in the excepted pieces to be set out, if this judgment-is sustained. Both parties excepted. The facts appear in the opinion.</p> <p>The plaintiffs have no right or title to this homestead. A married man’s sole deed does not convey any interest in the homestead. R: L. s. 1904; Abell v. Lathrop, 47 Vt. 375 ; Day v. AdamS, 42 Yt. 516; Canfield v. Hard, 58 Yt. 217.</p> <p>In Abell v. Lathrop, 4.7 Yt. 375, it is determined that under circumstances like those in this case the homestead right still continued and could be asserted after decree of foreclosure. “A divorce obtained by the wife will not deprive her of her homestead rights acquired during coverture in her husband’s real estate, where she' continues to reside with her children.” Blandy v. Asher, 72 Mo. 27; Van Zant v. Van Zant, 23 Ill. 566 ; Bonnell v. Smith, 53 Ill. 575 ; Thomp. Home & Ex. ss. 1, 82.</p> <p>The divorced wife being charged- with the custody of the children, continued the head of the family and kept the homestead. Sellon v. Heed, 5 Biss, 125. She and the children never abandoned the homestead. Larabee v. Wood, 54 Yt. 452. Constant occupation is not required. West Biver Banh v. Gale, 42 Vt. 27. Even if the defendant has no right to a homestead, nevertheless the children have. Blandy v. Asher, 72 Mo. 27 : Callwalden v. Howell, 18 N. J. L. 138 ; Moore v. Dunning, 29 Ill. 135 ; .White v. Clark, 36 Ill. 285.</p> <p>The case of Bland v. Asher was a similar one to the case at bar. The homestead exemption is humane in its character, and the statute should- receive a liberal construction iii view of the objects aimed at by it. Jewett v. Guyer, 38 Yt. 218 ; True v. Morrill, 28 Vt. 674; McFlary v. Bixby, 37 Yt. 254.</p> <p>The first part of the judgment was correct, so far as it went. R. L. s. 1250 ; Chapin v. Scott, ID. Chipman, 41; Dodge v. Page, 49 Yt. 137 ; Canfield v. Hard, 58 Vt. 217. The error consisted in limiting the recovery to a part instead. of extending it to include the whole farm.</p> <p>The second part of the judgment was erroneous because it is wrong on principle and contrary to authority.</p> <p>The theory of the law is that the “ widow or minor children,” or “widow and minor children, if there are both,” on the death of the “ housekeeper or head of a family,” take the homestead. But the divorced woman is not the wife and does not become the widow. Thomp. Home & Ex. s. 8 ; Bishop Mar. &Div. s. 705 ; Whitsellv. Mills, 6 Ind. 229 ; Ohenowith v. Ohenowith, 14 Ind. 2 ; Dobson v. Butler, 1 Mo. 8 ; Moore v. liegeman, 27 Hun, 68 ; Matter of Ensign, 3 Hun, 152; Webster Diet, as to word “widow”; Worcester Diet. ; Eapalje & L. Law Diet. The Heaton & Eeed moi'tgage became operative and included the homestead as soon as the divorce was granted. Whiteman v. Field, 53 Yt. 55. Mrs. Sawyer had an incohate homestead right in the premises covered by the Heaton & Eeed mortgages, now owned by the plaintiffs, as she did not join in the conveyance ; but this right is absolutely cut off by the divorce.</p> <p>“A divorce obtained by. a wife bars her homestead right in her husband’s property, unless such right is reserved by the decree of divorce.” Wiggin v: Buzzell, 58 N. H. 329. The homestead law of New Hampshire is in effect similar to our own. G-. S. Chap. 124.</p> <p>In Brandon v. Brandon, 14 Kan. 324 the court say : “In granting a divorce whether on account of the fault of the wife or the husband, the court has power to award to her the possession of the homestead.” Wood v. Davis, 34 Iowa, 264; 14 Ind. supra; 37 Hun, supra.</p> <p>Mrs. Sawyer has acquired no homestead rights since the divorce. She took possession under foreclosure of her alimony mortgage; but since November, 1876, when the foreclosure of the plaintiffs’ mortgages became absolute, her possession was that of a trespasser. Oalderwood v. Tevis, 23 Cal. 335 ; 53 Iowa, 172; Mannr. Rogers, 35 Cal. 316; MeOlurken v. McOlurken, 46 Ill. 327.</p>

<p>Bill of interpleader. Heard on tbe report of special masters, September Term, 1886. Powers, Chancellor. Affirmed.</p> <p>It was decreed that the assignment executed by Polly G-ould and John Gould to the said A. O. Cummings, administrator of Henry M. Cummings, of their expectancy in the estate of Lucinda Cutler, mentioned in 'said report, be set aside and held for naught; and that the defendant Davis, administrator of Polly Gould’s estate, is entitled to the fund paid into the court by the orator, with its accumulations, and the same is decreed to him to hold as assets of said Polly’s estate, and that the defendant Davis is entitled to recover his costs against the defendant Cummings, to this date.</p> <p>The masters found:</p> <p>“ David Gould deceased some time in the fall of 1861, leaving a will whereby he bequeathed to his wife, Polly, a life estate in his home farm in East Montpelier, and to his son, John Gould, 2d, the remainder, subject to the payment by John of certain other legacies therein named. From David’s decease to the death of John, some time in the spring of 1883, Polly and John occupied the farm together, John never having married; and, after the death of John, Polly remained upon the farm until late in the fall of the same year, when she was removed to Montpelier into the family of a grandson-in-law, where she remained until her death, June 29, 1884, at the age of ninety-three years, lacking a month.</p> <p>“Lucinda Cutler, a sister of Polly Gould, deceased April 4, 1874, leaving a will providing that the residue of her estate, after the payment of all other legacies, should remain in the hands of her executor, or, in case of his death, resignation, or inability, in the hands of a trustee to be appointed by the Probate Court, for a term of ten years after her decease, after the expiration of which term said residue with its accumulations ‘ to go and descend to her legal heirs to be divided according to law which will was duly probated, and Addison Peck appointed executor, who administered for a time and was succeeded by Clark King, duly appointed administrator with the will annexed.</p> <p>“ April 30, 1872, Polly and John mortgaged said farm to Lucinda Cutler, to secure their note of that date for the sum of $700, signed by Polly and John. August 22, 1873, Polly and John again mortgaged the farm to H. W. Heaton to secure two notes of that date, one for the sum of $720, one for the sum of $115, and a note of April 29, 1873, for the sum of $103.50, all signed by Polly, and the first and last named by John. The. $115 note was witnessed; both these smaller notes were given for personal property, named in the notes, by said Heaton bid ofl‘ at sheriff’s sale upon executions against John, at the request of Polly and John, at the dates of the notes respectively; and a lien was reserved in the notes on the property in each note named. This mortgage also covered a piece of land in Montpelier known as the ‘ Somerby Place,’ of which Polly then owned an undivided half. August 22, 1873, Polly and John again mortgaged said home farm to Dennison Taft to secure a note of that date for the sum of $790, signed by Polly and John; which debt it appeared was incurred for improvement of the buildings on the place. September 19, 1874, John executed still another mortgage of the farm to Avery Cummings to secure a note of that date, signed by him, for the sum of $800.</p> <p>“ Tbe mortgage to Dennison Taft, at some time after its execution, came into the hands of William N. Peck and was by him foreclosed at September Term of Washington County Court of Chancery, 1875, at which term decree was passed with one year’s redemption expiring November 10, 1876. Neither Polly and John nor Cummings redeemed, and the decree became absolute as against Polly and John and Avery Cummings. Soon after the decree became absolute, Henry M. Cummings purchased the rights of said Peck, taking from him a quit-claim deed of the farm, dated May 3, 1877 ; and March 1,1877, said Henry M. also received a deed from Polly and John of the Somerb'y Place — a quit-claim deed. The foreclosure against Polly and John bereft them of all their property, save, perhaps, a small amount of personal property and their interest in the Somerby Place, subsequently conveyed to Henry M. as above set forth. They were poor.</p> <p>“ The encumbrances prior to the Taft mortgage still existed; and' Henry M. paid to the executor of Lucinda Cutler and to said Heaton their claims, and so secured to himself absolute title to the farm. The amount of encumbrances, including the decree, at the date of the expiration of the decree was $3,019.43.</p> <p>‘ ‘After Henry became the owner of the farm in the manner above narrated, Polly and John continued to occupy the farm just as they bad done before, presumably under some arrangement with Henry M. : but what that arrangement was cannot be stated, as there was neither writing nor living witness produced with definite knowledge to tell; nor can it be ascertained whether an arrangement of some kind was-made before or after Henry M. purchased the Peck decree, or whether he purchased the decree by the procurement of Polly and John or at his own motion. All that was shown about this is learned from defendant, A. O. Cummings, who was a witness in his own behalf, and who had some knowledge, in a general way, of his brother Henry’s affairs; and he supposes the arrangement to have been that Polly and John were to pay Henry M. 6 per cent, on the money invested by him in the farm, and were permitted to stay there at the sufferance of Henry M. he being the absolute owner.</p> <p>“ Henry M. Cummings deceased about August 8, 1881, and immediately thereafter A. O. Cummings was duly appointed administrator of his estate. Among Henry M. Cummings’ papers, his said administrator found the two smaller notes described in tbe Heaton mortgage, and a note for the sum of $1,000, dated December 1, 1876, payable to Henry M. on demand, signed by Polly and John, and witnessed by E. Y. Eandall, The note was called in the trial ‘the Eandall note.’ The $115 Heaton note was payable to Heaton or order, and when found by A. O. Cummings did not bear Heaton’s indorsement. A. O. Cummings procured Mr. Heaton to indorse this note without recourse after Henry’s death and after the making of the assignment hereinafter spoken of. Within two or three days after, the death of Henry M.', A. O. Cummings, having then been appointed administrator, went up to the farm and had an interview with John about these matters, and also made some general talk with Polly about her remaining on the farm, and about paying for the use of farm. Subsequently A. O. Cummings had two or more interviews with John at Montpelier in relation to the business, and it was suggested that John and his mother make an assignment of their expectancy in the estate of Lucinda Cutler, to secure the said Cummings for the past indebtedness and for their future occupancy of the farm; and so it was arranged between Cummings and John that Cummings should-come up to the farm and have writings executed to accomplish that purpose. According to this arrangement with John, on December 18, 1881, a time previously agreed upon between Cummings and John, Cummings with a lawyer repaired to the farm to consummate the business. On that day, at the farm, Polly and John executed to A. ‘O. Cummings, as administrator of the estate of Henry Cummings, in writing, under seal, an assignment of all their interest in the estate of Lucinda Cutler, with power of attorney to receive and receipt for’such sum as should be coming to them, or either of them, from the administrator of Lucinda Cutler’s estate, to an amount sufficient to pay said Cummings the indebtedness therein named. The indebtedness named in the assignment is the said Eandall note, the said two smaller notes named in the Heaton mortgage,- a note of $1,250 that day executed by said Polly and John to A..O. Cummings., administrator, and such further indebtedness as should arise under a lease of the farm that day, executed and hereinafter more particularly described. At the same time A. O. Cummings, administrator, executed to Polly a lease of the farm from .that time to the first day of April, 1884 — about the time the ten years after the death of Lucinda Cutler would expire — with a provision that, it should terminate at all events with the death of Polly, at the annual rental of $175..</p> <p>“After Polly’s death, A. O. Cummings sold the home farm at forced auction sale for the sum of $2,550, a sum which he testifies was 4 a good deal less than its value,’ though he got all he could for it, after making diligent effort to get more at private sale. After Polly’s death, Timothy Davis was duly appointed administrator of her estate. Said Davis claimed from Clark King, administrator with the will annexed of Lucinda Cutler, whatever was coming to Polly as heir of Lucinda Cutler; and A. O. Cummings, administrator, claimed the same by virtue of said assignment. Thereupon King brought the bill in this case, and the court ordered the said Davis and Cummings to interplead, and these masters were appointed to hear them. King has paid into court the fund here in controversy, being the sum of $3,370.80.</p> <p>‘ ‘ Davis charges mental incapacity on the part of Polly at the time of the execution of the assignment, and, upon this charge of mental incapacity rest's the issue in the case. Upon either side of this issue was introduced a great number of witnesses, who gave their opinion respecting Polly’s mental and physical condition during the last ten years of her life, with more or less detail of her circumstances and surroundings.</p> <p>"From this testimony is found: Up to within fifteen years of her death, Polly was a woman of more than ordinary business capacity and understanding. John was her only living son; and for him she entertained great affection, and in him had great confidence. He was addicted to the excessive use of intoxicating liquor, and was ‘easy going’and shiftless. They lived together upon the farm, John having the outdoor and financial management of affairs, and Polly managing indoors, herself doing such work as she was able, which for the four or five years next before John’s death, was very little. John became in his later years so shiftless that he neglected to cut all the hay, and even gathered fence for firewood. His careless and unthrifty management of the farm and their financial affairs — his shiftlessness — brought them to a condition of poverty in 1875, when they were foreclosed as hereinbefore set forth, notwithstanding that, with ordinary industry and management, the farm would have afforded them an abundant living.</p> <p>“ Notwithstanding this, Polly’s confidence in John was unshaken. After the foreclosure, and up to John’s death, his utter worthlessness was apparent to all but his mother. Polly herself loved strong drink, and sometimes partook of it to intoxication. John ministered to his mother’s desire in this behalf, and furnished her with her ‘ warm drink,’ as she called it. The masters think that this attention on his part in no wise diminished her affection for or confidence in him. In 1883, during John’s last sickness, some of the neighbors called the attention of the overseer of the poor of the town to the fact that Polly was in need, whereupon he, with yjne of the selectmen, went to the farm to look into the matter, and interviewed Polly respecting her needs and situation. Polly insisted to them that she had everything she wanted except that, since John had been sick, she had no one to bring her her warm drink. The fact is that at that time she was not comfortably provided for. The overseer at that time did nothing for her relief, and, as far as appeared, never did. This was after the execution of the assignment, but her condition of mind then was not substantially different from what it was at the time of the assignment. Polly was induced to execute the assignment by John. Cummings’ negotiations were mostly with John, and John influenced his mother.”</p> <p>The masters do not think that John himself, who was present that day, had a very intelligent comprehension of the details of that business, though it is not claimed that he was incapacitated from transacting business affairs. It is not insinuated that Mr. Cummings intended any wrong, but it is stated that the making up of the $1,250 note was in a great measure * ‘ guesswork ” on his part. The masters entertain some doubt respecting the justice and equity of all the debts named in the assignment. They do not quite understand why the two smaller notes named in the Heaton mortgage were kept on foot as a subsisting debt. They were named in the mortgage, and, by Henry M. Cummings, paid when he redeemed the farm. It .did not appear that either Heaton or Henry M. ever relied upon the security named in the notes, themselves, or pursued that personal property,.but it did appear that the property was lost sight of, and nobody knows what became of it, or when it was lost sight of. The masters think the evidence warrants the presumption that John at some time disposed of it.</p> <p>The circumstances surrounding the parties at and about the date of the Randall note suggested to the mind of the masters some doubt as to whether Henry M. preserved that note as a subsisting debt against Polly and John. The evidence presents to the minds of the masters the conjecture that that note was given- at the time Henry M. purchased the Peck decree, with a view, then entertained, but afterwards abandoned, that new notes should be given for all that Henry M. should pay out to redeem the farm, Polly and John still retaining an equitable interest in the property.</p> <p>The other facts are sufficiently stated in the opinion of the court.</p> <p>The .question raised on the report is naturally divided into two parts : (1) How much mental capacity must a person possess to make a valid pledge of such person’s property for the payment of débts? (2) How much mental capacity must a person possess, who at the time is without present means, to make a valid pledge of an expectancy, to enable such person to live without becoming a public charge ?'</p> <p>It is found in this case that Polly Gould knew what she signed, and that it bound her expectancy to pay the debts named in the contract; and realized and knew the difference between one sum of money and another. The only infirmity found by the masters is lack of memory.</p> <p>If Polly Gould understood what she was doing, and the effect of the act, as the masters have found in this case in reference to the assignment, of what consequence is it whether she understood other things reasonably or unreasonably ?</p> <p>Different men come to different conclusions upon the same state of facts, as to what is reasonable or unreasonable; that is, they differ in judgment. This is not a valid excuse for not performing a contract understandingiy made.</p> <p>The issue in this case is the same as in Allore v. Jewell, 91 U. S'. 506 (24 L. ed. 260), in which the court uses the following language in stating' the issue : ‘ ‘ The question presented for determination is whether the deceased at the time she executed the conveyance in question, possessed sufficient intelligence to understand fully the nature and effect of the transaction; and, if so, whether the .conveyance was executed under such circumstances as that it ought to be upheld, or as would justify the interference of equity for its cancellation.”</p> <p>The same doctrine is laid down in the case of Harding v. Handy, 24 IT. S. 11 Wheat. 103 (6 L. ed. 429).</p> <p>Imbecility or weakness of mind, not amounting to idiocy or lunacy, is not alone sufficient to avoid a deed. Jackson v. King, 4 Cow. 207 ; /Smithy. Beatty, 2 Ired. Eq. 456.</p> <p>Unless there is inadequacy of consideration, or some other evidence of fraud, imposition, or over-reaching, any degree of imbecility or insanity short of total business incapacity, will not suffice to avoid a contract. Henderson v. McGregor, 30 Wis. 78 ; Darnell v. Howland, 30 Ind. 342; Henry v. Hite-nonr, 31 Ind. 136 ; Hall v. Perkins, 3 Wend. 626 ; Odell v. Buck, 21 Wend. 142; Petrie v. Shoemaker, 24 Wend. 85; Person v. Warren, 14 Barb. 488 ; Hirsch v. Trainer, 3 Abb. N. C. 274; Clearwater v. Kinder, 43 Ill. 272; Sheldon v. Harding, Id. 74; Farnam v. Brooks, 9 Pick. 212; Beller v. Jones, 22 Ark. 92; Mann v. Betterly, 21 Yt. 326.</p> <p>The report finds that A. O. Cummings acted in good faith in this matter, so that there was no over-reaching or anything to put a prudent man on inquiry.</p> <p>Absolute soundness of mind is not necessary to enable one to make a valid conveyance. It is sufficient if the mind comprehend fully the import of the particular act. Bippy v. Gant, 4 Ired. Eq. 443; Miller v. Craig, 36 Ill. 109 ; Dennett v. Dennett, 44 N. H. 531; Hovey v. Hobson, 55 Me. 256 ; Speers v. Sewell, 4 Bush, 239 ; Creagh v. Blood, 2 Jones & La. T. 509 ; 8. C. 8 Ir. Eq. 434.</p> <p>As to the measure of her capacity, the rule is that she must have had enough to enable her to- understand and comprehend in a reasonable manner the nature and effect of the business which she was doing, as stated in /Stewart v. Flint, 1 Yt. (L. ed.) 274, 4 New Eng. Rep. 120, 59 Yt. 144; or, as stated in Hill v. Day, 34 N. J. Eq. 150, approving Lozear v. Shields, 23 N. J. Eq. 509, “ Where there is no reason to suspect fraud, the test, where mental incapacity is charged, is : Did the person whose act is challenged possess sufficient mind to understand in a reasonable manner the nature and effect of the act he was doing, or the business he was transacting?” — or, as Lord Hale would have put it, “Did she know what she was about ?”</p> <p>I. The whole case shows Polly’s condition at the time of the assignment to have been one of great and real mental weakness, and, “ in a case of real mental weakness, a presumption arises against the validity of the transaction; and the burden of proof rests upon the party claiming the benefit of the conveyance or contract, to show its perfect fairness and the capacity of the other party.” 2 Pom. Eq. Jurisp. s. 947; Balter v. Monlc, 33 Beav. 419; Wartemberg v. Spiegel, 31 Mich. 400; Bigelow, Fr. 282; Kerr, Er. 189, 190; Bailey, Onus Probandi, 353.</p> <p>II. But if the statement quoted from Mr. Pomeroy is, without some element added thereto, too broad in any respect, the facts of this case supply the necessary additional element. It may be said, and certainly nothing more can be said, that, in addition to real mental weakness — which is all that Mr. Pomeroy names — there must be substantial inadequacy of consideration, oi’ undue influence, or certain fiduciary relations between the parties. With any one of these three elements added, Mr. Pomeroy’s statement cannot be considered too broad.</p> <p>Among the relations named abov.e as fiduciary, which include all those where there is influence on one side and confidence on the other, are those of parent and child, guardian and ward, attorney and client; as well as others of a class yet open, regarding which it was said by Lord Chelmseokd in Tate v. Williamson, L. R. 2 Cb. App. Cas. 55, quoted in 2 Pom. Eq. Jurisp. s. 956: “The jurisdiction exercised by courts of equity over the dealings of persons standing in certain fiduciary relations has always been regarded as one of the most salutary description. The principles applicable to the more familiar relations of this character have been long settled by many well-known decisions, but the courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise.”</p> <p>Mr. Pomeroy says, in the above section : “ We are now to view fiduciary relations under an entirely different aspect; there is no intentional concealment, no misrepresentation, no actual fraud. The doctrine to be examined arises from the very conception and existence of a fiduciary relation. While equity does not deny the possibility of valid transactions between the two parties, yet, because every fiduciary relation implies a condition of superiority held by one of the parties over the other, in every transaction between them by which the superior party obtains a possible benefit, equity raises a presumption against its validity, and casts upon that party the burden of proving affirmatively its compliance with equitable requisites, and of thereby overcoming the presumption.” It should be noted that the application of this principle is made purely upon the fact of the fiduciary relation, and, indeed, Mr. Pomeroy says that where this relation exists the existence of “mental weakness, old age, ignorance, pecuniary embarrassment, and the like” is “incidental, not necessary;” but we suggest that, where they exist to the extent shown in this case, they form a very important “ incident.”</p> <p>III. The report finds ‘ ‘ Polly was induced to execute the assignment by John. Cummings’ negotiations were mostly with John, and John influenced his mother.” We claim that this, with what is elsewhere found in the report, may be taken to be a finding of undue influence by John, with the effect of which Cummings was chargeable.</p> <p>The following cases show that even imputed undue influence would put this burden on Cummings ; much more is it put on him by the direct findings : 3 Lead. Cas. Eq. 123 ; 27 Moak, Eng. Eep. 417, note; 32 Moak, Eng. Eep. 321, note; Hug-uenin v. Baseley, 14 Yes. Jr. 273; Maitland v. Irving, 15 Sim. 437; Maitland y. Backhouse, 16 Sim. 58; Espey v. Lake, 10 Hare, 261; Archer v. Hudson, 7 Beav. 551; Ooolce v. Lamotte, 15 Beav. 234; Hoghton v. Hoghton, Id. 278; Blackie v. Clark, Id. 595; Cobbett v. Brock, 20 .Beav. 524; Berdoe v. Dawson, 34 Beav. 603; Baker v. Bradley, 7 De G. M. & G. 597 ; Lyon v. Home, L. E. 6 Eq. 655 ; Kempson v. Ashhee, L. E. 10 Ch. App. Cas. 15 ; Bainbrigge v. Browne, L. E. 18 Ch. D. 188; Boss v. Boss, 6 Hun, 80; Leighton v. Or, 44 Iowa, 679; Noble v. Moses, 1 So. Eep. 217.</p> <p>IY. But the burden is without question on Cummings, for the assignment was of an expectancy: . One claiming under conveyance of an expectancy must show affirmatively its perfect fairness, and that a full and adequate consideration was paid. This' Cummings has not done. 2 Pom. Eq. Jurisp. 953; 1 Story, Eq. Jurisp. 336; Bigelow, Er. 274; Bromley v. Smith, 26 Beav. 664; Chitty, Eq. Index Y. 3, 2794; Hill, Tr. 238; Adams, Eq. 5th Am. ed. 372; Bailey, Onus Pro-bandi, 352.</p>

<p>Spectal Assumpsit to recover three assessments upon' premium notes. Plea, general issue. Trial by court, March Term, 1887, Veazey, J., presiding. Judgment pro forma for the plaintiff to recover the amount of said assessment, with interest from date, provided in the charter and by-laws for interest to be paid. Affirmed.</p> <p>The policy was issued to the defendants October 30, 1875, and ran five years. The plaintiff was admitted to do business in this State in 1870, and a license was issued to it for that purpose, and continued to do business here till 1880.</p> <p>The exceptions stated that: ‘‘ The .licenses issued to this company were lost. * * * A license was issued to the plaintiff company by the insurance commissioners of Vermont, to do business in this State for the year 1875, and for every subsequent year until 1880. This fact was found upon parol evidence, the licenses being lost,” etc.</p> <p>The court found, that the plaintiff had complied with the statute as to filing papers with the secretary of state or the insurance commissioners, in order to be entitled to a license to issue policies of insurance in this State, but was unable to find, from the evidence produced, that the by-laws of the company had ever been filed with the secretary of state. The policy was made “ subject to the Act of incorporation and bylaws of the said company, which are to be used and resorted to to explain or ascertain the rights of the parties hereto in all cases not herein otherwise provided.”</p> <p>A question was made, whether, under the laws of Pennsylvania, where plaintiff company was located, an insurance company of that state was liable for the acts and neglects of its agents, as between the company and the insured. It was conceded, that there was no statute law of Pennsylvania to that effect, but it was claimed that under the decisions of tbe highest court of that state an insurance company was so liable at the common law. An officer of the company but not a lawyer, who had charge of the litigation of the plaintiff in that state, and had for many years made it a part of his business to keep himself familiar with the decisions of that court upon said question, and jyho testified that he knew what the decisions were in that respect, was allowed, against defendant’s objections to testify as an expert as to the law of Pennsylvania upon the point in question. And he testified that the decisions had been in accordance with the plaintiff’s claim, and that the plaintiff company had been so held liable ; and referred to the cases, and produced the volumes of Pennsylvania Reports in which he claimed such had been the rulings, and adopted the same as his testimony as to the law of that state on this question.</p> <p>The defendants improved Mr. Ashton R. Willard, a practicing member of the Vermont bar, as a witness, upon the same question ; and he testified that he had examined the decisions as reported in the Supreme Court Reports of that state, and that they did not hold as stated by the other witness. He produced decisions, some of which were the same as referred to by the plaintiff’s witness. The exceptions stated: “As both these witnesses fall back upon the reported decisions of the Pennsylvania courts, as a basis of, and adopt the same as their testimony, as to the law of that state upon the point in question, this court found that the law is as held and reported in the Supreme Court Reports of Pennsylvania.” [Here was the following amendment inserted upon the suggestion of the Supreme Court: “In volumes 4, p. 185; 23, p. 72; 51, p. 462 ; 75, p. 378 ; 24, p. 320 ; 100,,p. 347 ; 83, p. 223 ; 8, p. 464; 50, p. 331; and in 7 W. & S. p. 348; which arc referred to as a part hereof.”]</p> <p>Further facts are stated in the opinion of the court.</p> <p>There can be no recovery, because the plaintiff had not complied with the laws of this State when the premium notes were executed. The court below failed to find that the company had ever filed a copy of its by-laws with the secretary of state, as required by sec. 9, No. 1, of the Laws ofl874, which was a condition precedent to its right to receive the license.</p> <p>Section 7 of the same Act prohibits all insurance companies not organized under the laws of this State from transacting business in this State ‘ ‘ until all the laws relating to insurance companies in other states, enacted by this State, shall have been complied with.”</p> <p>These conditions constitute, a part of the law, and insurance companies cannot qualify themselves to transact such business without compliance with them. 55 Yt. 526.</p> <p>The insurance policy issued to these defendants refers specifically to and makes the by-laws a part of the contract; these by-laws contain many prohibitions on the assured, and it was very essential that the assured have access to them in case of loss, as they contain the instructions and rules for procedure for the assured in such an event. As this company had not complied with the requirements in regard to filling its by-laws, the insurance contract made by it in this case was prohibited by law, and the premium” notes were void. JEtna Ins. Oo. v. Harvey, 11 Wis. 394; Williams v. Oheney, 8 Gray, 206 ; Haverhill Ins. Oo. v. Prescott, 42 N. H. 547; Williams v. Oheney, 3 Gray, 215 ; General Mut. Ins. Oo. v. Phillips, 13 Gray, 90; Oincinnati Mut. Health Assur. v. Rossenthal, 55 Ill. 85 ; Lamb v. Lamb, 6 Biss. 420.</p> <p>The words “ laws of the state ” as used in the Act of 1874, mean the positive written statute law of the State. Swift v. Tyson, 41 U. S. 16 Pet. 18 (10 L. ed. 871). See also Bouv. L. Diet. 11,12 ; Burr. L. Diet. 11, 32 ; Abb. L.Dict. 11, 13 ; Gelpche v. Dubuque, 68 U. S. 1 Wall. 175 (17 L. ed. 520) ; Delmas v. Merchants Mut. Lis. Oo. 81 U. S. 14 Wall, 661 (20 L. ed. 757) ; Boyce v. Tabb, 85 U. S. 18 Wall. 546 (21 L. ed. 757).</p> <p>Agents of insurance companies in Pennsylvania are not responsible to the degree that the Act in question called for.</p> <p>Agents of a mutual insurance company cannot prejudice the rights of the company by misrepresentations as to the places where risks were located, — as that the company does not-take risks in the cities. May, Ins. s. 133 ; Hacleney v. Alleghany County Mut. Ins. Co. 4 Pa. 185. The local agent has no authority to receive notice of loss, and is not bound to communicate it to the company. Edwards v. Lycoming County Mut. Ins. Co. 76 Pa. 378; Smith v. Ins. Co. 24 Pa. 320. An agent of an insurance company whose duty it is to take surveys, to receive applications for insurance, examine the circumstances of losses, approve assignments and collect assessments, is not authorized to accept notice of over insurance or waive its consequences. Mitchell v. Lycoming Mut. Ins. Co. 51 Pa. 402. See May, Ins. s. 145 ; Hew Yorle Union Mut. Ins. Co. v. Johnson, 23 Pa. 72; Susquehanna Ins. Co. v. JPerrine, 7 Watts & S. 348.</p> <p>At the time this contract was executed, the company was licensed by the insurance commissioners to transact business in this State and it is to be presumed that the insurance commissioners had required a compliance with all the provisions of the statute which they, as agents of the State, considered material or necessary to the protection of the public.</p> <p>The intent of the legislature seems to have been in passing the act of 1874, to declare what financial condition was requisite to enable a foreign insurance company to do business here; and to enable the courts to get jurisdiction over them. Sawyer v. Horth American L. Ins. Co. 46 Yt. 706.</p> <p>A failure to comply with a statute of a state does not avoid promise to pay premiums to a foreign company. Ciarle v. Middleton, 19 Mo. 53. Whether a statute prohibiting an act renders a contract made in contemplation of' the act void depends on whether, in view of the whole statute, the makers meant that tbé contract should be void in the sense that it could not be enforced. Harris v. Runnel, 53 U. S. 12 How. 79 (13 L. ed. 901) ; Pangborn v. Westlake, 36 Iowa, 546; Union Gold Min. Go. v. Rocky Mt. Hat. Bank, 96 U. S. 641 (24 L. ed. 650) ; Union Hat. Bank v. Matthews, 98 U. S. 621 (25 L. ed. 188) ; Morawetz, Corp. ss. 661-666.</p> <p>It was expressly declared that a contract entered into in contravention of this statute should be valid. Gen. Stat. chap. 87, s. 13. And if the contract is valid, the note given as a consideration for it must be valid. • Lester v. Webb, 5 Allen, 573; Hartford L. 8. Ins. Go. v. Matthews, 102 Mass. 224.</p> <p>Although our statutes since 1850 have declared that our home companies should be held responsible for the acts and neglects of agents, our courts have repeatedly défíned the limitations of authority of insurance agents. Farmers Mut. F. Ins. Go. v. Marshall, 20 Yt. 27 ; Garrigan v. Lycoming F. Ins. Go. 53 Yt. 418.</p> <p>Under the decisions of the courts of Pennsylvania, made prior to this contract, an insurance company is liable for the acts and neglects of its agents. Lycoming F. Ins. Go. v. Woodworth, 83 Pa. St. 223; Hilenberger v. Protective Mut. F. Ins. Go. 89 Pa. St. 464; Golumbia Ins. Go. v. Gooper, 50 Pa. St. 331.</p> <p>The requirement of the Act of 1874, No. 1, s. 9, that each company shall file with the secretary of state a certified copy of its by-laws, is merely directory.</p> <p>Members of a mutual insurance company are presumed to know the terms of the charter and the by-laws of the company, and are bound by them. Mitchell v. Lycoming Mut. Ins. Go. 51 Pa. 402 ; May, Ins. s. 542 and cases cited.</p> <p>Whether a statute is mandatory or directory depends upon whether the things prohibited or directed to be done are of the very essence of the thing required. Rex v. Loxdale, 1 Burr. 447 ; 81 Pa. St. 349.</p> <p>But when the particular provisions of a statute relate to some immaterial matter, where compliance is a matter of convenience rather than substance, they are regarded as directory. 19 Barb. 558 ; 4 Neb. 336 ; Grosby v. School Dist. No. 9, 35 Vt. 625.</p>

<p> Will, Publication of. Evidence, Rebutting. Practice. Deposition. </p> <p>1. It is a sufficient publication of a will where the testatrix and the witnesses severally signed it in the presence of each other, although the testatrix did not personally say that it was her will, but the person who drew it for her announced to the witnesses in her presence that it was, and requested them to sign it as witnesses.</p> <p>2. When one of three attesting witnesses to a will has deceased, and another was present in court and testified to the signing, it was not incumbent on the pro-, ponent to produce the other, who resided in another state and not within reach of process, nor, to take his deposition, though he was in this State for a few days during the pendency of the cause.</p> <p>8. In an action to establish a will the contestant pleaded mental incapacity and undue influence, and the proponent introduced evidence, in the opening, bearing on both points, to prove capacity; the contestant put in evidence to show that the testatrix was weak in body and mind to sustain his plea of undue influence, and the proponent offered in rebuttal evidence relating to the health and activity of the testatrix and her ability to labor; Held, that, the burden being on the proponent to prove the capacity of the testatrix but on the contestant to prove undue influence, the evidence, though cumulative as to one issue, was rebutting as to the other, and admissible.</p>

Replevin for oiie cow, etc., taken by the defendant by virtue of his warrant as constable and collector of taxes. Plea, that the property was taken by defendant, as collector of taxes on a rate bill and warrant. Heard by the court, March Term, 1887, Taut, J., presiding. Judgment for the defendant.

<p> Municipal Corporation. Village. </p> <p>1. when the legislature delegates to an incorporated village power, without limitation, to supply itself with water for fire and domestic uses, such power rests in the discretion of the voters of the village in respect to the amount of money to he expended on aqueducts and the supply of water, if exercised in good faith and for a proper municipal purpose.</p> <p>2. And in such ease, when a village has constructed one water main, it was held to he a question of expediency for the voters to decide whether another should be built; and an iniunction was refused restraining the expenditure of money voted for that purpose, although the water in the existing main was used to some extent in running motors, and afforded a fair supply of water, if no accident befell it, and although some of the voters were influenced by a desire for an increase of motive power, but the concrete vote was given for the purpose of rendering the water supply more useful and certain.</p>

Bill to foreclose a mortgage and the defendants’ interest in real estate of which they held a bond for a deed. Heard on the pleadings and a master’s report, April Term, 1888, Rowell, Chancellor.

<p>ActioN for deceit in sale of bay. Heard oñ a referee’s report, March Term, 1888, Rowell, J., presiding. Judgment for tbe plaintiff for $36.40, — the sum allowed by referee with interest. It appeared that tbe bay was raised on tbe defendant’s land, was pressed and baled by his servants, and that be never saw the bay; that plaintiff bought tbe bay relying on the representations; and that tbe bay was damaged $26.98 in value. As to tbe sale of tbe bay by tbe plaintiff, tbe referee found as follows: Tbe hay was shipped to one Bruce, and tbe plaintiff charged him $20 per.ton, which was $6 per ton more then the plaintiff paid tbe defendant. • £ ‘ Bruce made no question about the price of the hay at that time nor did he ever object to paying full price for the hay as charged by plaintiff on account of its being damaged. Plaintiff and Bruce had dealings together, and had a large unsettled account. Subsequently, when plaintiff and Bruce came to settle up their account, Bruce having then learned that plaintiff paid only $14 per ton for this hay, he objected to paying plaintiff $20 per ton, claiming that plaintiff had no right to charge him more than he paid; that he was to have the hay at whatever plaintiff paid for it, and was to pay plaintiff a reasonable sum for his trouble in buying it for him ; plaintiff did not admit that his contract with Bruce was such that he had no right to charge him a profit on the hay; but the charge for hay was compromised between them at $117.94. This was in a general compromise of their whole account, other items of which were in dispute. Bruce yielded certain claims in consideration of this compromise. Plaintiff paid the freight on the hay to Eoxbury, amounting to $11.20, making the cost of it at that place $119.14; $1.20 more than plaintiff was allowed for it in the compromise.”</p> <p>No fraud being shown, the plaintiff can recover no more damages than he has sustained. Baldwin v. Porter, 12 Conn. 484 ; Hurlburt v. Green, 41 Yt. 490 ; Hogan v. Thorington, 8 Port. 428; Reggio v. Braggiotti, 7 Cush. 169 ; Sedgw. Dam. p. 29.</p> <p>The measure of damages on a breach of warranty is governed by substantially the same rules as in the case of a vendor’s breach of his obligation to deliver.. Benj. Sales,— 1159 ; The Gamden Consolidation Oil Go. v. Schlen <& Go. 59 Md. 81-44; Woodward v. Thatcher, 21 Yt. 580; Wing v. Ohapman, 49 Yt. 33; Hubbard v. Rowell, 51 Conn. 423; Murray v. Jenkins, 42 Conn. 9; Sedgw. Dam. p. 115, note.</p> <p>Unless both fraud and.damage concur an action'will not lie. 1 Swift, Dig. 554; 49 L. J. (Con. Law) N. S. 851. The plaintiff must show that he has sustained some injury. Weaver v. Wallace, 4 Halst. 251.</p> <p>The report shows that the plaintiff never suffered any damage because of the transaction.</p> <p>The representations made by the defendant and relied upon by the plaintiff constituted a warranty of the quality. There being a breach of the warranty, the plaintiff is entitled to recover, and no question is made, but the referee has followed the correct rule of damages. 54 Yt. 226 ; 58 Yt. 543; 49 Yt. 22 ; 13 Wall. 379 ; 40 Yt. 588 ; 3 Cranch, 270.</p>

<p>ActioN on the case for negligence. Trial by jury, September Term, 1887, Taft, J., presiding. Verdict for the plaintiff.</p> <p>The parties were adjoining landowners of occupied lands in Marshfield, Vt. The Montpelier & Wells River Railroad crossed said lands. The lands of the parties were separated by a fence, which was legally divided. There was a fence between the plaintiff’s land and the railroad track, but none between the track and the defendants’ land. The part of the fence between the parties’ lands which the defendants were bound to keep in repair was insufficient. By reason of such insufficiency the plaintiff’s cattle escaped from his pasture over the defendants’ fence into the latter’s pasture, and from thence strayed on to the railroad track and were killed. The loss from such killing is sought to be recovered in this action.</p> <p>It was the duty of the plaintiff, if he knew of the insufficiency of the fence, to have given the notice provided for by section 3184, Rev. Laws, and build the fence, and in failing to do so, it was negligence.</p> <p>In Massachusetts, under a statute very similar to ours, it has been held negligence to turn cattle into a pasture insufficiently fenced, even though it be the duty of another to fence it, if the want of fence be known to the one turning them in. Mass. Pub. Statutes, chap. 86, ss. 1-4; Lyon v. Merricle, 105 Mass. 71.</p> <p>Contributory negligence is a defence. Shearm. & Redf. Neg. s. 25; Whar. Neg. s. 300; Burdick v. Worrall, 4 Barb. 596 ; Heil v. Qlanding, 42 Pa. St. 493; Beatty v. Gilmore, 16 Pa. St. 463; Briggs v. Guilford, 8 Yt.. 264; Trow v. Central R. R. Go. 24 Yt. 487; 15 Wis. 598; Saxon v. Bacon, 31 Yt. 540.</p> <p>Whether the plaintiff was negligent or not was a question for the jury. Allen v. Hancock, 16 Yt. 230; Willard v. Pinard, 44 Yt. 34; Hill v. Hew Haven, 37 Yt. 510 ; Hyde v. Jamaica, 27 Yt. 443.</p> <p>The evidence was admissible to show the plaintiff’s knowledge of the insufficiency of the fence.</p> <p>The action is founded on section 3184 of the Revised Laws. The rights of the plaintiff have been fully determined under this statute by this court. Saxton v. Bacon, 31 Yt. 540 •; Sorenberger v. Houghton, 40 Yt. 150 ; Keenan v. Cavanaugh, 44 Yt. 268.</p> <p>The law of contributory negligence does not apply. The plaintiff having complied with the statute owed the defendants no duty; The damage was the direct result of the defendants’ negligence.</p>

Trover. Heard on a referee’s report, April Term, 1887, Rowell, J., presiding. Judgment on the report for the watcb ornament, and the finger ring. The court held as matter of law that there could be no apportionment of costs; but as matter of discretion denied the plaintiff costs as to.claims that he did not establish. Exceptions by defendant.

Assumpsit upon a promissory note. Heard by the court September Term,' 1887, Tyxer, J., presiding. The court held that the discharge in insolvency was not a bar, and rendered judgment for the plaintiff. No place was designated in the note where it was payable. The other facts are stated in the opinion. The note being payable generally was payable in Vermont. Feclc v. Hibbard, 26 Vt. 701 ; 12 N. H. 520.

<p>Assumpsit. Pleas, general issue and Statute of Limitations. Trial by court, April Term, 1887, Rowell, J., presiding. Judgment for the plaintiff.</p> <p>The suit was brought to recover the amount of a certain promissory note, dated March 1, 1868, and signed by L. C. Snyder, A. H. Chesmore and Hiram Shattuck. The note was given for $100, and payable to the treasurer of the plaintiff town.</p> <p>The writ was dated February 26, 1886. It was found by the referee that the last payment of interest on the note was made by one Sidney Gillett, and was made later than March 10, 1880 ; and that the interest was endorsed on the note each prior year from the date of the note up to and including 1880. The defendant denied that he paid any interest subsequent to January 14, 1874; and it was found that the interest after that date was paid by said Gillett.</p> <p>In the early part of the year 1868 the makers of said note were engaged in the manufacturing of lumber as partners. Durina the same year they procured - an act of incorporation, and organized a corporation known as the ‘ ‘ Forest Dale Lumber Co.,’’.which corporation took the property and business of said co-partnership with all of its property, and agreed to assume and pay all of its outstanding liabilities, one of which was the pote in suit.</p> <p>The defendant took a considerable amount of the capital stock of said corporation which he owned and held until January 14, 1874, on which day he sold and assigned the whole of it to one Sidney M. Gillett, receiving therefor about one-half its par value. At that time Gillett executed his notes to the defendant for about one thousand dollars, and pledged the stock that day purchased as collateral security therefor.</p> <p>After this transaction was completed, but on the same occasion and before the parties had separated, the defendant, as an afterthought, asked Gillett for a personal guarantee against debts outstanding against the old firm of Snyder, Chesmore & Shattuck. Whereupon said Gillett executed the following agreement:</p> <p>“ This agreement witnesseth : — That Sidney M. Gillett, of Huntington, agrees to clear A. H. Chesmore, of Huntington, from all debts due from the firm of Snyder, Chesmore & Shattuck, by paying the same.</p> <p>“SidNby Gillett.</p> <p>“Huntington, January 14, 1874.”</p> <p>The payments made by Gillett were made with his own funds, and not with those furnished by the defendant. The sale and delivery of the stock had been fully completed and executed before the writing was mentioned (as an ‘ ‘ afterthought”) , and the writing was executed without consideration, and so far as it can have any legal effect, was what the defendant called for, only a “ guaranty against outstanding debts.”</p> <p>The only question presented by the case is: Did the acceptance by the defendant of the writing executed by Gillett constitute him the agent of the defendant, so that Gillett could legally perpetuate the note in question ? No such agency was created by that paper, nor by the previous sale of the stock. “ But it is not enough that the agent is authorized to make the payment. His authority must enable him to bind the principal bj a promise to pay ; and such authority cannot be implied from the mere authority to make the payment.” Brown v. Latham, 58 N. H. 30.</p> <p>See Harper v. Fairley, 53 N. Y. 442; Smith .v. Ryan, 66 N. Y. 352 ; 7 Wait Act. & Def. 304.</p> <p>A payment of interest more than six years after the writing was made cannot be regarded' in any sense as a payment by the defendant. The most favorable view for the plaintiff which can be taken of the transactions between Gillett and the defendant, on the 14th January, 1874, is, that those transactions so far created an agency in Gillett that payments by him made in a reasonable time thereafter on the debts then due from the firm, would save such debts from the statute bar. Ang. Lim. s. 247 ; Porter v. Blood, 5 Pick. 54; Reed v. Hurd, 7 Wend. 408 (Bk. 11 L. ed. 178) ; Havan v. Hath-way, 2 Appleton (Me.), 345 ; Gowan v. Foster, 3 B. & Ad. 507.</p> <p>The law is that from part payment of a debt the law implies an acknowledgment of the remainder of the debt to be due. Ayer v. Hawkins, 19 Yt. 26 ; Goodwin v. Buzzell, 35 Yt. 9 ; Gorliss v. Grow, 58 Vt. 702; Hollister v. York, 59 Yt. 1; R. L. s. 974..</p> <p>The payment was not of Gillett’s debt, for he owed the plaintiff nothing, and the plaintiff claimed nothing of him. Those payments made through Gillett went in reduction of the defendant’s debt; they were procured by the defendant to be made, he furnishing the funds for that purpose, with a stipulation secured for their application; thus making Gillett, at the least, his agent to make the payments. McConnell v. Merrill, 53 Vt. 149; Bailey v. Gorliss, 51 Yt. 366; Burnett v. Snyder, 45 N. Y. 577; 11 U. S. Dig. N. S. 554; Delavan Bank v. Ootton, 53 Wis. 31; 13 U. S. Dig. 585 ; Littlefield v. Littlefield, 91 N. Y. 203; Forsyth v. Bristome, 8 Exch. 715 ; 6 Jac. Fish. Dig. 8665.</p>

<p>ActioN on the ease for negligence in improper using •and immoderate driving of the plaintiffs’ hired horse. Trial by-jury, April Term, 1887, Rowell, J., presiding. Verdict for the defendant.</p> <p>The plaintiffs asked the court to instruct the jury :</p> <p>1st. “ That if the jury find that defendant used said horse for a different purpose or to perform a longer journey than that for which it was hired, then the defendant takes upon himself the risk of all accidents or disabilities which may befall the property hired, and must make all damages good to the plaintiffs.”</p> <p>2d. ‘ ‘ That when property in the exclusive possession of the bailee for hire is injured in a way that does not ordinarily occur without negligence, as the plaintiffs’ evidence tends to show in this case, then tbe burden of proof is upon the bailee to show that it was not occasioned by his negligence.”</p> <p>3d. “ If the jury find that the defendant drove said horse beyond the limits of the bailment, this fact alone renders him liable for all damages sustained by the plaintiffs.”</p> <p>The court refused to charge as above requested, but did charge on the first request as follows :</p> <p>“ 1. Upon the declaration as drawn, the gist of this action is negligence on the part of the defendant. And unless you find that the horse was injured by improper use, management, driving or care by the defendant, the plaintiff cannot recover.”</p> <p>“ 2d. Now, although it may be true that if he went outside of the bailment and anything happened to the horse, although without his fault, he would be liable; yet, the plaintiffs cannot avail themselves of that in this action, because they have not properly declared in the declaration, and their case must be tried upon the issue that is there set forth.</p> <p>‘ ‘ They do not declare and say that by reason of driving outside of the bailment any damage was done to this horse; they simply describe the journey, and state that part of it was outside of the bailment; and then say that in the performance of that whole journey, all around, by reason of immoderate and improper driving and usage of the horse, it was injured. So that is the question.</p> <p>‘ ‘ If you find that the defendant immoderately drove the horse, or negligently and improperly and carelessly fed and watered and looked after it, whether within or without the terms of the bailment, and by means thereof the horse was injured and damaged, then the plaintiffs are entitled to recover. To entitle the plaintiffs to recover, you must find that the condition of the horse (whatever it was that the horse exhibited on his return by the defendant) was occasioned by some improper driving or some improper care in the management of the horse while he had it in his possession.”</p> <p>And on the second request the court charged as follows, to wit:</p> <p>‘ ‘ If you find that the horse was in a diiferent condition from what it was when the defendant took it, then it will devolve upon you to determine how it came to be in that condition, whether or not it was in that condition by reason of any improper driving or treatment of it by the defendant.</p> <p>‘ ‘ The court cannot say to you — the law cannot say to you— that if the horse did come in changed in condition as the testimony on the part of the plaintiffs tends to show, that therefore the plaintiffs are entitled to recover, unless the defendant accounts for that condition, that is a question for you to decide.”</p> <p>If the defendant departed from his contract of bailment,' he would be liable to the same extent as if he had taken the' horse without permission. Towne v. Wiley, 23 Yt. 355. The court should have complied with the plaintiffs’ second request. 3 Wait Act. & Def. p. 620; Logan v. Matthews, 6 Penn. St. 417 ;• Collins v. Bennett, 46 N. Y. 490 ; Brown v. Waterman, 10 Cush. 117 ; Shear. & Eedf. Neg. s. 13, 220; Georgia B. Co. v. Willis, 28 Ga. 317; McDaniels v. Robinson, 26 Yt. 316 ; Rowell v. Fuller’s Estate, 59 Yt. 688.</p> <p>The plaintiffs were entitled- to recover, when they proved that the horse was used outside the contract of bailment, or was injured in such unlawful use. 3 Wait Act. & Def. pp. 615, 618; Schenck'y. Strong, 4 N. J. L. 87; Homer v. Timing,'3 Peck. 492; Lewis v. McAfee, 32 Ga. 465; Per-ham v. Coney, 117 Mass. 102; Lucus v. Trumbull, 15 Gray 306.</p> <p>It was a breach of contract, and the damages can be recovered in an action ex contractu, or on the case. 2 Chit. PI. 337, 669 ; Bright v. McKee, 37 Yt. 161 — 164; Dean v. McLean, 48 Yt. 412 ; Bank of Orange v. Brown, 3 Wend. 158 ; 1 Chit. PL 132, 134, 135 ; Sárjeant v. Blunt, 16 Johns, 73; Cairns & Lord v. Bleechers, 12 Johns, 300; Rotch & Hawes, 12 Pick. 136.</p> <p>The charge of the court under the declaration was correct. The gist of the action was negligence, and the plaintiffs were bound to prove it. 1 Greenl. Ev. s. 80, p. 107 ; Story, Bailm. ss. 454, 457. It was incumbent on them to show that the horse was injured by the fault of the defendant. Barrington v. Snyder, 3 Barb. 380. Negligence is a question of fact to be found by the-jury; and the burden is on the plaintiffs to prove it by a fair balance of testimony. Story, Bailm. ss. 213, 421; Edwards, Bailm. ss. 172, 399 ; Story, con. 451; 8 B. 630; 13 K. 387, 421; Kempy. Phillips, 55 Yt. 99; Selleclc v. Wells, Fargo & Go. 109 Mass. 542, 556; Schmidt v. Blood, 9 Wend. 269 ; Maynad v. Buch, 100 Mass. 40; Stowe v. Bishop, 58 Yt. 500; Kennedy v. Morgan, 57 Yt. 48; 2 Barb. 327; Harsley v. Branch, 1 Humph. 109; 2 Greenl. Ev. s. 231; Dressier v. Davis, 7uWis. 527 ; Edwards v. Oarr, 13 Gray, 234; Holmes v. Watson, 29 Penn. St. 457; Shiphard v. Harlow, 3 Allen, 176; McGully v. Olarh, 40 Penn. St. 399 ; 8 Allen, 234.</p> <p>The defendant was bound to use only ordinary care. 7 Cow. 499. The injury must have resulted exclusively from the wrong of the defendant. Waters v. Weng, 59 Penn. St. 211; 57 Penn. St. 374; 1 Hill. Torts, pp. 121, 126; 29 Me. 307 ; 2 Kent Com. (9th ed.) 791; Harris v. Pachwood, 3 Taunt. 264 ; Marsh v. Horn, 3 B. &.C. 322 ; 1 Par. Cont. 606. Want of ordinary care and skill must be shown, or the defendant is not liable. 117 Mass. 102.</p>

Trover for taking live stock and fanning tools. Trial by jury, September Term, 1887, Tyler, J., presiding. The court ruled that the real estate mortgages, under which the plaintiff claimed, were not operative to form any title or lien, as against the chattel mortgage under which the defendant claimed, and directed a verdict for the defendant. ' The case is stated in the opinion.

<p> Glerle of Court. Trustee Process. </p> <p>Money in the possession oí the clerk of the County Court, paid to him under a decree ol the Court of Chancery, is attachable on trustee process, when the purpose of the legal custody has been accomplished, and the only duty of the clerk is to pay the money to the defendant.</p>

<p> Pleading. Railroad. Motion to Dismiss. </p> <p>The defendant was sued as “the Burlington and Lamoille Railroad Company, a company organized under the laws of this State,” etc. The service of the writ was like that required by the statute, on a corporation, by leaving a copy with its clerk. A motion was filed to dismiss on the' ground that the service was illegal; but it did not specify any error, or the method of correcting it. Held: (a) That, as there is a general law under which railroad corporations can be organized, it is presumed that the defendant is a corporation organized under this law; (b) That the motion — if the objection is available on motion —is faulty in not pointing out both the defect and its correction.</p>

<p> Railroad. Sheriff. Power to Arrest Engineer on Train. </p> <p>An officer Raying a writ by whieli Re is commanded to arrest tRe body of tRe defendant, a railroad engineer, may lawfully stop a train of cars run by suck engineer, for tRe purpose of making tRe arrest.</p>

<p>False- Imprisonment. Sheriff. Service of Process. Deputation. R. L. s. 858.</p> <p>1. Under tlie statute, — E. L. s. 80S, — which provides that the sheriff may depute any proper person to serve a writ, or other precept, by indorsing thereon a special deputation, the deputation may be written on a separate piece of paper and attached to the back of the process by the sheriff, or, in certain circum - stances, he may authorize another to attach it for biin.</p> <p>2. It is not necessary that the deputation should state that the deputy is a “ proper personit is presumed that he is such.</p> <p>3. The court give no countenance to the practice of putting deputations into the hands of a special deputy for him to use as he may have occasion on processes not coming within the congnizance of the sheriff.</p>

<p>Practice. Chattel Mortgage. Act of 1882, No. 69, s. 2. Pleading. Exemplary Damages.</p> <p>1. If evidence is legitimate when it is received, its admission is not error, although in the course of the trial it becomes immaterial.</p> <p>2. In an action upon the Act of 1882, No. 60, section 2, to recover the penalty and damages for failure to discharge a chattel mortgage, evidence was admissible to show the amount of usury in the mortgage note, as hearing on the question of payment of the note, and defendant’s duty to discharge the mortgage.</p> <p>3. In an action based upon section 2, No. 69, Acts of 1882, allowing for failure to discharge a chattel mortgage after performance of its condition, a recovery of “ ten dollars for such neglect and all damages occasioned thereby,” it is not necessary to declare in two counts, one for the penalty and the other for the damages; but a count including both, at most, would only be open to the fault of duplicity, which could only he taken advantage of by demurrer, and' not by exception.</p> <p>4. Under the general allegation of “ other damages,” the plaintiff could recover only such as were the natural consequences of the defendant’s refusal to discharge the mortgage; but he could not recover for damages resulting from the defendant’s false declarations as to the mortgage.</p> <p>5. As the action is based upon the statute, which limits the damages to $10, and all damages occasioned by the neglect to discharge the mortgage, exemplary damages are not recoverable.</p> <p>6. The jury were allowed to give exemplary damages; but the plaintiff was permitted to hold his judgment for the penalty, on condition that he remitted all above $10. •</p>

<p> Railroad. Mail. </p> <p>It is the duty of a railroad company, wliicii carries the mail under a contract with the government of the United States, and by whose regulations postal clerks on mail trains are required to receive at the ears stamped letters and sell stamps, to furnish a reasonably safe passage to and from its mail trains, while stopping at its regular stations, for the purpose of mailing letters; and a failure to provide such passage is actionable negligence.</p>

COVENANT. Heard on general and special demurrer to the declaration, December Term, 1887, Taet, J., presiding. Judgment that the declaration is sufficient, overruling the demurrer. The defendant prayed oyer of the contract between ~W. A. Eussell and Eollins C. Jones, the assignment of the contract from Jones to plaintiff, and the contract between plaintiff and defendant referred to in declaration. The same were all filed and made a part of case.

<p>Complaint charging intoxication. Heard on complaint, plea, replication and demurrer thereto, September Term, 1887, Powers, J., presiding. Judgment that the replication is sufficient, overruling the demurrer. The case appears in the opinion of the court.</p> <p>The justice of the peace had jurisdiction of the subject-matter when he imposed the fine on the respondent. Section 3812, R. L., provides that a person shall pay a fine .of $5.00 on conviction of intoxication. Section 1666 confers jurisdiction on a justice in criminal actions when the punishment is by fine not exceeding $10. Jurisdiction of the subject-matter is power to adjudge concerning the general questions involved. One court has jurisdiction in criminal cases ; another in civil cases ; each in its sphere has jurisdiction of the subject-matter. It is the power to act upon the general, and, so to speak, the abstract question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power. Hunt v. Hunt, 72 N. Y. 217. The subject-matter in this case is tbe offense of being found intoxicated. Gornvett v. Burdwell, 1 Lord Raym, 454; Berrys. Morse, 57 Yt. 509 ; Lange v. Benedict, 73 N. Y. 28 ; Borst v. Corey, 15 N. Y. 509. A respondent can give jurisdiction voluntarily. Hoxie v. Wright, 2 Yt. 263; Hall v. Williams, 6 Pick. 232; Wright v. Anderson, 130 Mass. 149; cases, supra; Stone v. Van Currer, 2 Yt. 115.</p> <p>There can be no fraud in one’s procuring a conviction of himself in a case where the amount of the fine is fixed by statute ; and in such case a former conviction is a bar. Hamilton, qui tam, v. Williams, 1 Tyler, 15 ; 3 Phil. Ev. (C. & H. Notes) p. 837, note 589.</p> <p>The crime of which the respondent is charged, is a creature of the statute. The duties and powers of a justice of the peace are prescribed by the statute. State’s attorneys, town grand jurors and certain police officers are complaining officers of crimes to be heard before justices of the peace. R. L. ss. 1618, 1622. When other than an informing officer becomes a prosecutor, his name must be entered at the foot of the complaint, and he is held to pay costs, etc., R. L. s. 1749. He must enter into a recognizance before a warrant issues. R. L. s. 1750. Section 1667 provides that no justice shall issue, a warrant, in such a case, to apprehend a person, until he has taken security.</p> <p>The justice must make a minute, on the complaint, of day, month and year, that same was exhibited. Sec. 1719. Unless this minute is made, it will be fatal. Slate v. Ferhins, 58 Yt. 722.</p> <p>By the constitution, warrants without oath or affirmation ought not to be granted. Art. 11, Chap. 1. The provisions of this part of the constitution were fully adopted by the court in State v. J. H.,1 Tyler, 444'; State Treasurer v. Bice & Burgess, 11 Yt. 339 ; Gill v. Barlcer, 31 Yt. 610; Campbell v. Thompson, 16 Me. 120; State v. Soragan, 40 Yt. 450, The statute must be followed in all criminal prosecutions, or they are wholly void.</p> <p>It is essential that the court rendering judgment in a .cause should have jurisdiction as well of the process as the party and subject-matter. Royce, J., Aiken v. Richardson, 15 Yt.-500. To the same effect is Mussey v. Howard, 42 Yt. 23.</p> <p>Without jurisdiction, the court has no power. Herm. Est. ss. 69, 73; Robertson v. State, Ex rel. Smith (Ind.) 7 West. Rep. 481. If the respondent had been committed by Connal, the justice, the commitment would have been illegal. Vaughn v. Oongdon, 56 Yt. 119. Again, if the proceedings before Connal were regular, the respondent would be entitled to one-fourth of the fine. The respondent in pleading his former conviction, should have alleged that every requirement of the statute had been complied with. It should appear that the justice had jurisdiction. Piper v. Pierson, 2 Gray, 120 ; State v. Reed, 26 Conn. 208 ; Gommonwealth v. Alderman, 4 Mass. 477; Gommonwealth v. Bascom, 111 Mass. 404; State v. Little, 1st N. H. 257 ; Moore v. State, 71 Ala. 307 ; Cr. Law, Mag. 909 ; State v. Galvin, 11 Humph. 599 ; S. C. 54 Am'. Dec. 57; State v. Simpson, 28 Minn. 66; S. C. 41 Am. Rep. 269.</p>

<p>RepleviN for a colt. Heard by the court, September Term, 1887, Veazey, J., presiding.</p> <p>Judgment for the' defendant for a return of the property. The plaintiffs claimed the colt was the property, of the plaintiff wife, who was the daughter of Alpheus Harding, who deceased in 1884. The said plaintiff husband testified that said Alpheus gave the colt to his wife. The court found: There was other evidence, not objeeted to and undisputed, tending to show a gift of the colt by the said Alpheus to his said daughter, but without any delivery of the same to her; upon this latter evidence alone, the court find the fact óf a gift, without delivery of possession, and that it was understood in the family of the said Alpheus and by the brothers of the said Florence E. this colt was given to said Florence and belonged to her.</p> <p>In the administration of the estate of the said Alpheus, it became necessary to sell the personal property of the estate, and when the administrator was making up a list of the personal property for sale, said Frank Harding ,a brother of Florence, offered to take the colt and keep it for her.</p> <p>The administrator understood that the colt had been given to said Florence as aforesaid, and thought if the colt was hers he did not want anything to do with it, and so let Frank take it upon his offer to do so.</p> <p>He gave no permission to Frank to sell the colt, and did not expect be would sell it, but that he would keep it for his sister, if it should turn out that she had a legal right to have it.</p> <p>Frank afterwards sold the colt to the father of the defendant, and the father subsequently sold it to the defendant.</p> <p>When the father bought it he had been informed that the colt belonged to said Florence, and so told Frank Harding, but Frank denied this, and said the colt had always been his.</p>

<p>Bill in Chancery. Heard on bill and demurrer thereto, February Term, 1888, Powers, Chancellor. Decree pro forma that the bill be dismissed, sustaining the demurrer. The bill alleged in part: “That the said Persis Brewer now claims a homestead in said premises, and has taken measures to have a homestead set out to her by metes and bounds ; but your petitioner claims and insists that the said Persis Brewer has no homestead in said premises, but if the court should determine that the said Persis has a homestead in said premises, then your petitioner insists that a severance of said homestead would greatly depreciate the value of the residue of the premises, and would be of great inconvenience to the parties interested in the residue of the homestead.”</p> <p>And your petitioner further says : “That commissioners were appointed by the Probate Court to set out a homestead in said premises as above stated, and in pursuance of their appointment, on the 3d day of August, 1877, repaired to said premises and set out a pretended homestead in said premises, as by the report of said commissioners on file in the office of said Probate Court.”</p> <p>An injunction was issued against the judge of probate enjoining him from recording the report of said commissioners. The other facts are sufficiently stated in the opinion of the court.</p> <p>The petitioner has no adequate remedy at law, as he cannot take an appeal from the decision of the Probate Court. Ilem-menway v. Oorey, 16 Yt. 225, is quite analagóus to this case. Gilbert v. Solve, 47 Yt. 402; Swift v-. Kenison, 39 Yt. 473 ; Downing v. Foster, 9 Mass. 386.</p> <p>The statute contemplates just such a proceeding as this. R. L. ss. 1908-9. It "is manifest that a court of equity has jurisdiction of the matter in this bill. In Ohaplin v. Sawyer, 35 Vt. 286, Aldis, J., says: “It is also claimed that the Probate Court should adjudge that there was a homestead before the Court of-Chancery can take cognizance of it, either to sell or assign under the act. ■ It would be singular if the legislature had made the jurisdiction'of chancery in the matter to depend on the decision of the Probate Court. There is nothing in the words of the act to show such an intent.”</p> <p>The statute is applicable for farm premises. Palmer v. Palmer, 50 Yt. 310. But independent of the statute, equity has jurisdiction. Thompson, Homesteads, s. 630; Sidloway v. Brown, 94 Mass. 36 ; Swan v. Stevens, 99 Mass. 9 ; Sisson Tate, 114 Mass. 501; Lamb v. Mason, 50 Yt. 345. The parties being tenants in common, the subject-matter is clearly within the province of a court of equity. 1 Story, Eq. Jur. ss. 649, 65, 655 ; Barney v. Leeds, 54 N. H. 128, 253, 279, Equity has jurisdiction in cases involving the partition of real estate. Tucker v. Keniston, 47 N. H. 270; 'Horn v. Tufts, 39 N. H. 485 ; Atkinson v. Atkinson, 37 N. H. 437 ; Thompson, Homesteads, ss. 479, 583, 680; Gunnison v. Twitchell, 38 N. H. 65 ; Whitten v. Whitten, 36 N. Ii. 326; Norris v. Moulton, 34 N. H. 399. An injunction was properly granted. 2 Story, Eq. Jur. s. 875. Persis Brewer having abandoned her husband, has forfeited all right to a homestead. Thompson, Homesteads, s. 74; 8 Tex. 312; 45 Tex. 559, 588.</p> <p>Section 1914, E. L., does not apply; for this is not an application to the Probate Court; nor does section 1908 ;. for it is not alleged that the premises exceed $1,000 in value. The Probate Court has original and exclusive jurisdiction; and a Court of Chancery has no authority to enjoin its officers. Pom. Eq. Jur. s. 1360.</p> <p>But if the court has jurisdiction in this case, relief should not be granted. Parties are never restrained from proceeding in a suit at law when- substantia] justice can be done in that action. Pom. Eq. Jur. s. 1361. If the orator had a right to appeal from the decision of the Probate Court, he has no standing in this court. Central Vermont Ii. R. Go. v. Royalton, 58 Vt. 234. He had a right to appeal. E. L. s. 2270; Byram v. Byram, 27 Yt. 295. The orator has a direct interest in the decree of the Probate Court, and this gives such right.</p> <p>The defendant Persis Brewer claims a homestead in these premises. She applies to the Probate Court, the only court in this State having jurisdiction of such matters, to set out that homestead. The Probate Court appoints commissioners under the statute. These commissioners make their report to the court, and the orator comes into that court and objects to th'e acceptance of that report. The Probate Court hears him and decides against him. Now what is there in all this that gives the Court of Chancery jurisdiction ? There is no allegation that the defendant has been guilty of any fraud in the matter. There is no pretense that the orator was by any improper practice deprived of the right to make a full showing before the Probate Court, or that that court refused to hear him, or that he asked for and was denied the right of an appeal,- or that he had any defence of such an equitable nature that it could not be gone into before that court.</p>

<p>Executor and Administrators. Jurisdiction. Statute of Limitations. R. L. ss. 973, 2125.</p> <p>1. The jurisdiction of the Probate Court is exclusive in regard to all claims of an absolute or legal nature, when it has been once invoiced for the settlement of an estate, and commissioners have been appointed thereon; thus, when a claim had been presented to commissioners by one of two joint contractors and there was an appeal, and it was ultimately decided that the suit could not be maintained on the ground of non-joinder of parties; Held, that the County Court had no jurisdiction of the same cause of action brought directly to that court against the administrators and after the commission on the estate had been closed.</p> <p>2. Section 973, Rev. Laws, which provides that when a writ fails for matter of form, etc., the plaintiff may commence a new action for the same cause within one year, has no application to the subject of jurisdiction, but is simply a modification of the Statute of Limitations.</p> <p>3. The court has no authority to allow an amendment to pleadings when it has no jurisdiction of the cause of action.</p>

<p>ActioN of assumpsit commenced by trustee process under section 407 of the Revised Laws by the plaintiff as collector of taxes for the town of Brownington. The plaintiff’s writ was dated February 24, 1883, and served on the 27th day of February, 1883. The plaintiff claimed to recover a town tax of $71.35, assessed on the grand list of the defendant in the town of Brownington for the year 1882. Plea, general issue.</p> <p>Trial by jury, February Term, 1888, Powers, J., presiding. General verdict for the plaintiff to recover $71.35 and his costs, and a special verdict finding that the defendant had not known personal property in the State sufficient to pay said tax at the time said suit was commenced.</p> <p>The defendant filed no inventory of his taxable property in ' Brownington, as required by law, for the year A. D. 1882. For that year the defendant was assessed by the listers for money and debts due the sum of $3,646, and his real estate was taken at the appraisal thereof in A'. D. 1881, viz., $2,300, and his grand list for that year, completed on or before the 15th day of May, A. D. 1882, was made by doubling said assessment of personal property and appraisal of real estate, and setting one per cent of the amount of said personal and real estate so doubled in the grand list to the defendant. The defendant claimed that said grand list was illegal by reason of the doubling his real estate in making his grand list as aforesaid, and requested the court to so hold, but the court ruled that said grand list was not illegal by reason of the doubling the defendant’s real estate as aforesaid; to which ruling and the refusal of the court to hold as requested the defendant excepted.</p> <p>For the purposes of this trial only, the defendant conceded that said grand list in other respects was regular; that defendant was a resident taxpayer in Brownington on the first day of April, A. D. 1882 : that the plaintiff was collector of taxes, and that he had lawfully demanded said tax of the defendant.</p> <p>The defendant claimed that the plaintiff could not maintain this action for the reason that the defendant had known personal property in this State sufficient to pay said tax at the time this suit was commenced. The plaintiff claimed that said objection was out of time and too late, for the reason that this cause had been once tried by jury on its merits, and in the Supreme Court upon exceptions, and that defendant had never before raised this objection. The court found the facts as' claimed by plaintiff (see .this case in 59 Yt. 23), and ruled jpro forma that said objection was seasonably raised, and that the burden of proof was upon the plaintiff to establish that defendant had ‘ ‘ not known personal property in the State sufficient to pay such tax ” when this suit was commenced ; to which ruling plaintiff seasonably excepted. The plaintiff, as evidence tending to show that the defendant had not known personal property in this State at the commencement of this suit, offered in evidence a tax inventory made under oath by the defendant March 27, A. D. 1882, which inventory mentioned no property except defendant’s real estate in Browning-ton, and the same was admitted in evidence by the court subject to the defendant’s objection and exception. On this issue the defendant offered evidence to prove that at that time this suit was commenced he had between four and five hundred dollars worth of personal property on his farm in said Brownington, and several hundred dollars worth of personal property on his form in Derby, a town adjoining said Brown-ington, and that said personal property was so exposed that the plaintiff, by ordinary inquiry, could have discovered the same; and that the defendant had leased his said personal property for a term, to expire on the first day of April, A. D. 1883, and that the same was at the commencement of this suit in the possession of the lessee, who was entitled to the possession thereof until the expiration of the term for which it was leased; and until long after it would be necessary for the plaintiff to complete his proceedings by sale, if he had attempted' ¡to levy the warrant annexed to this tax bill upon said property or any part thereof. This suit was brought to collect the sum of $337.72 in taxes assessed upon different grand lists. The court excluded the evidence offered, to which ruling the defendant excepted.</p> <p>Nothing, appeared on trial as to defendant’s having a residence in Brownington except the aforesaid concession that he resided there on the first day of April, A. D. 1882.</p> <p>The grand list involved in this suit is illegal by reason of doubling the defendant’s real estate in making said list.</p> <p>The tax inventory made March 27, 1882, was improperly admitted. There was no evidence that at that -time defendant was a resident of Brownington, and thus required by law to inventory his personal property in that town. The admission that defendant resided in Brownington April 1, 1882, raises no presumption that he resided there before that date.</p> <p>A presumption of this kind runs forward, not backward, from an established or admitted fact. Although it might be true that defendant had no personal property taxable in Brown-ington ill March, 1882, it would have no tendency to show how his property was situated in February, 1883.</p> <p>The court erred in excluding the evidence offered as to the amount and value of defendant’s personal property at the time this suit was commenced. It was largely in excess of what was required to pay all the taxes claimed, and many times the value of the taxes which were legal and collectible.</p> <p>The defendant’s reversionary interest in the leased personal property could have been sold for payment of taxes against him. The old law was changed by statute. Gen. Stat. p. 33, ss. 31, 32; E. L. ss. 1189, 1190-1, The property was attachable by leaving a copy in the town clerk’s office. E. L. s. 876. By section 376, E. L., property which may be attached on writ' by leaving a copy in the town clerk’s office may be distrained by leaving in such office a copy of the warrant with the collector’s return thereon.</p> <p>Under the decision in Qlemons v; Lewis, 36 Yt. 673, plaintiff was not confined to ten days, but might take a reasonable time. .</p> <p>He might have adjourned his sale, so that the lease would have expired, or sold subject to the lease. He had the same rights as any officer as to property taken on execution. Spear v. Tilson, 24 Yt. 420 ; WlieelocJe v. Archer, 26 Yt. 380 ; Eob. Dig. p. 664, s. 69, 72. The statute gives collector three years in which to collect tax. E. L. s. 379.</p> <p>The law of this case as to doubling the defendant’s real estate is established -by the foz’mer decision. The court, by Powers, J., say: “No defects in the annual grand list for 1882, completed on the, 15th of May, are pointed out, and such list is to be treated as valid.” Bartlett v. Wilson, 59 Yt. 28, 31. The defendant’s tax inventory was admissible. It was not offered as conclusive, but as tending to support the issue; namely, that he had no known personal property, etc. Does not the fact that he had none March 27, 1882, and with no evidence tending to show the acquiring of any after March 27, 1882, tend to show that he had none in Brownington, February 24, 1883 ? If it does, then it tends to show that he had uonejn the State.</p> <p>The property subject to the lease could not be taken for the taxes. Such property cannot be attached by the officer taking it into his possession (48 Yt. 607), nor by a copy lodged in the town clerk’s office; because this would not be according to the provisions of the statute, as required by the decision, 48 Yt. 607.</p> <p>It is well settled that the law gives no remedy for the collection of taxes other than those provided by statute. Barnes v. Hall, 55 Vt. 420. “ The power of an officer making a tax sale is purely statutory.” Ib.</p> <p>In distress for non-payment of taxes no valid lien could be created on personal property, unless the collector took actual possession, until the Act of 1878. Ib. See R. L. ss.'1189, 1190. Hence there was no error in excluding the evidence.</p>

Assumpsit to. recover for keeping one Mary Stone, mother of the plaintiff, an alleged pauper of the defendant town, from the first day of March, 1886, to the 23d day of July, 1887; and for certain articles of clothing furnished the pauper. Trial by jury, February Term, 1888, Powers, J., presiding. Yerdict for the plaintiff to recover $19.50.

Appeal by defendant from a decision of commissioners upon the estate of Elias Bentley, deceased. Trial by jury, June Term, 1887, Ross, J., presiding. Verdict for plaintiff. The case appears in the opinion.

<p> 'Evidence. Bills and JSTotes. Statute of Limitations. </p> <p>1. An indorsement upon a note, though, not in the handwriting- of the payor, is some, but not sufficient evidence of payment, and may be weighed in determining- whether a payment in fact had been made, as bearing- upon the Statute of Limitations.</p> <p>2. The party who made the indorsement was properly allowed to testify to the circumstances attending the making of it.</p> <p>3. Error cannot be predicated upon the improper answer given by a witness to a proper question; thus, when the questions were pertinent to elicit evidence showing- that a payment had in fact been made as appeared by an indorsement, error cannot be predicated on an answer, even if it contravenes the statute,— It. L. s. 1002 — which excludes a living party when the other party is dead.</p>

<p>Assumpsit in common counts, commenced by Elijah Barber in his lifetime. Trial by jury, December Term, 1887, Powees, J., presiding. Verdict for the plaintiff.</p> <p>It appeared and was not disputed that before the commencement of this suit Elijah Barber assigned and transferred to his daughter, Harriet Jewett, all claims in his favor against the defendant and that this cause is being prosecuted for the use and benefit of said Hari’iet Jewett.</p> <p>Said Harriet Jewett was examined as a witness on the part of the plaintiff and testified somewhat as to the board bill and what was the relation to the family of the defendant while he lived at the house of said Barber.</p> <p>The defendant then called two or three witnesses who testified that said Harriet Jewett had told them prior to 1871 and years before said assignment to her, that the defendant more than paid his board while he so lived and boarded in the family, and while she as the wife of Charles Jewett was also a member of the same family.</p> <p>The court charged the jury in part:</p> <p>“ There is another class of evidence in this case, gentlemen, that it is proper for me to call your attention to, and that is evidence that has been produced here to show that some one of the parties or witnesses has made statements out of court different from the statements or testimony that they have given in court. To illustrate that idea, I call your attention .to the testimony of Mrs. Jewett. This is one instance of it and there are others. Some witness has testified that Mrs. Jewett on one occasion, when she was there at Mr..Barber’s house, told her that Dr. Bennett brought into the house provisions or supplies enough to pay for his board. I have not stated the exact language of the witness and I don’t remember it. That is the idea; you are to rely upon your own recollection of this evidence or the substance of it; but as I remember it, she tertified that Mrs. Jewett said in substance that Dr. Bennett had furnished enough to pay for his board. If that was true then of course he does not owe that board bill. Mrs. Jewett says she never made that statement. Now suppose she made that statement, what is the effect you are to give to the testimony of this lady who testifies to this statement ? It does not establish the fact; it is not evidence tending to support the fact that the doctor actually did bring enough into the house to pay for his board ; it is not to be used for that purpose. If Mrs. Jewett had told a score of witnesses that same thing, it would not be evidence that would give you the right to find the fact that Dr. Bennett did furnish enough to pay his board bill. You are not to use it for that purpose, but the law gives you the right to use such contradictory evidence for the simple purpose of impeaching the credibility of Mrs. Jewett; that is to say, if you find that Mrs. Jewett has made such a statement out of court and those statements are inconsistent with the testimony which she gives in court, then the question arises, how much can I rely upon the testimony of Mrs. Jewett, how much is she affected by this contradiction, how much less trustworthy is she in view of the fact that she has told one story out of court and another in court. And then if you find that she is to some extent impeached in respect to her trustworthiness in this behalf ' the question arises, how much reliance shall I give to the rest of her testimony. That is all the effect it has.”</p> <p>The other facts are sufficiently stated in the opinion.</p> <p>The defendant claims that as Mrs. Jewett is the real party in interest in this suit, and her relations to the transaction were such, that her statements were evidence against her that the fact was as she stated it. The law in regard to this class of evidence looks chiefly to the real parties in interest, and gives to their admissions the same weight as though they were parties to the record. 1. Greenl. Ev. s. 180.</p> <p>It is not material that Mrs. Jewett took her assignment after she made the admission. Before she became the party in interest, the admission could be used as between the original parties, only to affect her credit as a witness, but when she becomes a party and prosecutes a suit, in the name of her assignor, to collect payment for this very matter that she had before admitted had no merit, those declarations are evidence against her that the fact is as she stated it.</p> <p>The testimony as to statements made' by Mrs. Jewett was evidently offered to impeach her credibility, and was not admissible for any other purpose. The general rule as to admissions is that they must have been made while the party making them had some interest in the matter-. 1 Greenl. Ev. 219. The ground on which admissions are received in evidence is that men may be relied upon to protect their own interest, and that when they admit anything against their interest it may safely be taken as direct evidence of the fact. 2 Best, 660.</p> <p>Statements made by a person before he acquired his interest cannot be shown as admissions. Dentv. Dent, 3 Gill (Md.), 482; Lawrence v. Boston, 119 Mass. 126; Burton v. Scott, 3 Band. (Ya.) 399.</p>

<p> Insolvent Law. </p> <p>In an aclion by an assignee claiming to recover on the ground that the deiendant purchased property of the insolvent debtor in fraud of law, where the referee reported that he was not able to find that the defendant had reasonable cause to believe that the debtor was Insolvent, but submitted to the court whether certain facts found should have put him upon inquiry; namely, that the transfer was not made in the usual course of business; that the' debtor sold out his entire stock to one person; that defendant made no inquiry as to his financial condition; Held, that,these were prima facie evidence of fraud, and threw the burden of proof on the defendant to sustain the validity of the transaction; and that he was put upon inquiry.</p>

<p> Attorney. Statute of Limitations. Bate. Parent and Ohild. </p> <p>1. Privileged Communications. The attorney of a client will neither be compelled, nor permitted, to disclose papers delivered, or communications made to Mm by Ms client, without his client’s consent, when the validity of the claims described in the papers is in controversy; thus, the attorney who brought the suit was properly excluded from testifying in behalf of the defendant, that while he was the attorney of record for the plaintiff he furnished the defendant’s agent a specification of the plaintiff’s claim, which differed materially from the one on file in the ease; and such agent was also properly excluded as a witness.</p> <p>2. Under the statute, — B. L. s. 26, — which provides, that when time is to be reckoned from a day or date, or act done, such day, date, etc., shall not be included in the computation, the day, upon which a payment was made upon a promissory note, is excluded in determining whether-the Statute of Limitations is a bar.</p> <p>3. The plaintiff lived in the defendant’s family, furnished some provisions and performed some labor, but the referee found that neither party expected that they were to be paid for, and that there was neither an express nor an implied promise; Held,, that there could be no recovery.</p> <p>4. Payments, not made upon the genera] account, but to apply upon specific items, do not prevent the operation of the Statute of Limitations,</p> <p>o. The manner in which an account is kept is unimportant in its bearing as to the operation of the statute; thus the plaintiff usually kept his account with the defendant on a large book and with apparent care; but during three months of one year he furnished feed for his horses, and at the same time the defendant delivered to him 140 lbs. of pork, and these items, both debt and credit, were kept on a diary, showing a balance due the defendant; Held, as there was no direction by the defendant, and no facts .found by which the court could'infer that he intended a different application, that the creditor could make the application upon any indebtedness of defendant.</p>

<p>Assumpsit upon an insurance policy. Plea, general issue. Trial by jury, September Term, 1887, Ross, J., presiding. Verdict for the plaintiffs.</p> <p>The application for said insurance was in writing, dated July 14,-1886, signed by the said Emily A. Smith, and contained the statement that there was no incumbrance upon the property.</p> <p>Said application also contained the following clause : “And I hereby covenant and agree that the foregoing statement, valuation, description and survey are true and correct; and they are submitted as my warranty and a basis for the desired insurance. The company shall not be bound by any act done or statement made to, or by any agent, or other person, which is not contained in the application; and this application shall be deemed and considered a part of the policy to be issued hereon, and bearing even number herewith.”</p> <p>The policy of insurance issued upon the foregoing application was written by Messrs. Cudworth & Childs, defendant’s agents, located at Brattleboro* is dated July 16, 1886, numbered 5219.</p> <p>Immediately succeeding the fire the plaintiffs notified Messrs. Cudworth & Childs of the loss; and in a few days thereafter Mr. Cudworth, in company with Mr. Henry E. Turner, the defendant’s general agent, having the supervision of all the company’s affairs and its adjuster of losses, within and for the New England states, visited the premises, examined the property damaged by the fire, and the schedule of property destroyed therein which the plaintiffs had prepared in anticipation of said adjuster’s visit.</p> <p>The evidence of the plaintiff tended to show that at this visit they furnished Mr. Turner with such knowledge and information as they then had relative to the origin and circumstances of the fire, and also agreed as to the amount and value of the property damaged and destroyed as shown by the said schedule in writing furnished as aforesaid; that owing to the fact that rumors were afloat in that community in regard to said fire being of an incendiary origin, and with which the plaintiffs’ names were connected, Mr. Turner desired to make some further inquiry before making a final-adjustment; that plaintiffs requested Mr. Turner to make a full and thorough examination, and satisfy himself as to tbe cause and origin of tlie fire; that they were ready and willing to make a sworn statement relative to said fire and the property damaged'and destroyed, which, in their opinion, when made, would be much greater in amount and value than was shown by said schedule.</p> <p>Against the objection and exception of the defendant, both of the plaintiffs were permitted to testify that on the occasion of the aforesaid visit, and in reply to their declaration of a willingness to make a sworn statement, Mr. Turner said to them that he was satisfied that property to the full amount of the insurance had been destroyed, and that no statement in writing, sworn to, was required of them, and that he would see them again relative to said adjustment in a very short time; that when Mr. Turner left he carried away-with him the schedule of property which plaintiffs had prepared as aforesaid, and upon which the valuations agreed as aforesaid had been carried out. The plaintiffs did not again see Mr. Turner until July, 1887, and after suit was brought.</p> <p>The defendant insisted that the plaintiffs were not entitled to recover, and that a verdict should be directed for the defendant for the following reasons :</p> <p>1. Because the property was incumbered by the mortgage to Orinda Eames of July 2, 1870, to the amount of $800, to secure the note of that amount payable in five years from the date last aforesaid, which said note and mortgage has never been paid and discharged.</p> <p>2. Because at the time the application for the insurance was made, and upon which the defendant company issued the policy upon which this suit is brought, she, the said plaintiff, represented that the property insured was not incumbered, when in fact the plaintiffs had executed the mortgage aforesaid, and had not paid the same, and had no reason to believe but what said mortgage was a valid and subsisting claim and mortgage at the time said application for'insurance was made.</p> <p>3. Because the plaintiffs did not render to the defendant, within thirty days after the fire, a particular statement of the loss, signed and sworn to by the assured, as is required by paragraph 3 of the 6th subdivision of the policy and contract of insurance. And, further, that the jury should be charged that the rendering of such a statement, sworn to by the assured, was a condition precedent to the plaintiffs’ right to recover.</p> <p>4. That to constitute a waiver, or in other words, to justify the jury in finding that the defendant had waived the requirement of proof of loss, as specified in the policy, they must be satisfied that such requirement was waived by a party having-authority so to do, and that such party intentionally and understandingly relinquished a well-known right — that is, the performance of a condition which the company had a right to insist upon.</p> <p>The following was a part of the policy :</p> <p>“ WARRANTY OR THE ASSURED.</p> <p>“The assured, by the acceptance of this policy, hereby warrants that any application, survey, plan, statement or description connected with procuring this insurance, or contained in, or referred to in this policy, is true, and shall be a part of this policy; that the assured has not overvalued the property herein described, nor omitted to state to this company any information material to the risk; and this company shall not be bound under this policy by any act of, or statement made to, or by, any agent or other person, which is not contained in this policy or in any written paper above mentioned.</p> <p>It is also a part of this warranty that if this policy shall be continued by renewal it shall be considered as continued under the original representations ; and that any change in the risk, not made known to this company at the time it is so continued shall render this policy void.”</p> <p>The court should have ordered a verdict for the defendant, as requested. The plaintiffs should have disclosed the incum-brance on the property. It was a material fact.</p> <p>In the Columbian Ins. Co. v. Lawrence, 2 Pet. 25 (Curt. Ed. 10), Marsaall, Ch. J., says: .“The contract of insurance is one in which the underwriters generally act on the representation of the assured, and that representatation ought consequently to be fair, and to omit nothing which it is material for the underwriters to know. * * * Fair dealing requires that he should state everything which might influence, and probably would influence, the mind of the underwriter in forming or declining the contract.” s. c. 10 Pet. 507. The above is approved in Farmers M. F. Ins. Co. v. Marshall, 29dYt. 23. The statements of the plaintiffs by the application were express warranties. May on Insurance, s. 156; Boardman v. F. II. Ins. Go. N. H. 551; Hayward v. FT. E. Mut. F. Ins. Go. Cush. 444; Towne v. Fitchburg Mut. F. Ins. Go. 7 Allen, 51; Campbell v. F. E. Mut. F. Ins. Go. '98 Mass. 381.</p> <p>It is the duty of assured to disclose all material facts. Vose v. Ins. Go. 6 Cush. 42; Patten y. Ins. Go. 38 N. H. 338; Daniels v. Ins. Go. 12 Cush. 425. The assured furnished no proofs of loss. The furnishing such proofs was a condition precedent to a right to recovery. Donahue v. Windsor Go. M. F. Ins. Go. 56 Yt. 374; Findeisen v. Ins. Go. 57 Yt. 520.</p> <p>The local agent was not empowered to waive the conditions of the policy. Barrett v. Union Mut. F. Ins. Go. 7 Cush. 175 ; Worcester Banlc v. Hartford Fire Ins. Go. 11 Cush. 265 ; Haley. Mechanics Mut. Fire Ins. Go. 6 Gray, 169 ; Kimball v. Howard Fire Ins. Go. 8 Gray, 37 ; Tate v. Citizens Mut. Fire Ins. Go. 13 Gray, 79 ; Shamut Sugar Refin. Go. v. Peoples Mut. - Fire. Ins. Go. 12 Gray, 535; Harrison v. Oity Fire Ins. Go. 9 Allen, 231; Lohnes v. Ins. Go. of Forth America, 121 Mass. 439; Kyte v. Gommercial Union Ass. Go. 144 Mass. 43 ; Putnam v. Fitchburg Mut. Fire Ins. Go. vol. 5 N. E. R. 289.</p> <p>A waiver of the condition relating to the furnishing proofs of loss, to be effectual, must have been in writing and indorsed upon said policy. Mulrey v. Shamut Mut. Fire Ins. Go. 4 Allen, 116 ; Worcester Banlc v. Hartford F. Ins. Go. 11 Cush. 265 ; Hale v. Mechanics Mut.' Fire. Ins. Go. 6 Gray, 169 ; Kyte v. Gommercial Union Ass. Go. 144 Mass. 43; Putnam Tool Go. v. Fitchburg ■ Mut. Ins. Go. vol. 5 N. E. R. 289; Cleaver v. Traders Insurance Go. 8N.W. R. 816.</p> <p>The mortgage was extinguished as an incumbrance, when the note was destroyed. Briggs v. Fish, 2 D. Ch. 100; Seymour v. Darrow, 31 Vt. 122 ; May Ins. s. 292 ; Hawkes v. Ins. Go. 11 Wis. 188 ; Merrill v. Ins. Go. 73 N. Y. 452.</p> <p>The defendant was not injured by the statement that there was no incumbrance; and it was in fact true. Mrs. Eames could ha ye been compelled to discharge the mortgage. Ring v. Ins. Go. 54 Vt. 434; Brink v. Ins. Go. 49 Vt. 442.</p> <p>After the lapse of fifteen years, there was a presumption of payment. Whitney y. French, 25 Vt. 663. Turner was the defendant’s general agent. Clothed with this unlimited authority he went on and adjusted the loss. No restriction in the policy as to the acts of the company’s agents could affect him. He was the company for all purposes connected with the adjustment of losses. May Ins. s. 151.</p> <p>An agent may act within the general scope of his real or apparent authority. Wood Ins. s. 383. In all cases the binding force of an act done or omitted by an agent, is to be measured by his apparent authority, and is to be determined by the jury. Wood Ins. 681, s. 403 ; May Ins. s. 509.</p> <p>Plaintiff might fairly infer from what had taken place that if Cudwortli said anything about it he would speak for the company he represented. May Ins. ss. 152, 143. Cudworth’s authority as agent was a question for the jury. His power of attorney from the company was simply a matter between him and the company. Wood Ins. s. 391; May Ins. 154. See Boutelle v. Ins. Go. 51 Vt. 4.</p> <p>Whether or not there has been a waiver is always a question of fact for the jury. Findeisen v. Ins. Go. 57 Vt. 520; Donahue v. Ins. Go. 56 Vt. 374; Mosley v. Ins. Go. 55 Vt. 142. Turner and Cudworth had authority to waive the sworn statement. Wood Ins. s. 395. The only objection or question raised by Turner, after being furnished a schedule, and agreeing upon the values, being as to the origin of the fire, constitutes a waiver of all other objections. Brink v. Ins. Oo. 80 N. Y. 108; Goodwin v. Ins. Oo. 73 N. Y. 480 ; May Ins. ss. 468, 470; Wood Ins. 715, 718, 723; Walsh v. Ins. Oo. 54 Yt. 351; Mosley v. Ins. Oo. 55 Yt. 142 ; Ins. Oo. v. Wilkinson, 13 Wall. 232; Brink & Oo. v. Ins. Oo. 49 Yt. 442. If the agent of an insurance company, after an examination of the circumstances attending the loss, informs the insured that he cannot recommend the company to pay the loss because it appears by his statement that he has sold more goods than he had purchased, this is a denial of all liability on the part of the company and a waiver of its right to demand the usual proofs of loss. May Ins. s. 505; McBride v. Ins. Oo. 2 Ins. L. J. 271.</p> <p>Limitations in policies upon the authority of agents to waive any conditions therein, refer to that part of the policy properly termed conditions essential as a part of the contract, but not to those stipulations to-be performed after loss, such as furnishing a sworn statement. May Ins. ss. 511, 473, and cases cited.</p>

<p> Mortgage. </p> <p>1. In case of several conveyances of parcels of land incumbered by a common mortgage the parcels are held to the duty of redemption in the inverse order of their dates; and this rule is applied in adjusting' the rights of successive grantees. Thus, the owner of a farm with a mortgage on it conveyed the west half to one party by warranty deed and received pay therefor; Held, that as between them, the mortgage was shifted at the time of the severence on to the east half of the farm.</p> <p>2. Such owner subsequently conveyed the east half to another party, whose title came to the orator’s intestate; Held, that she took only the title of such owner incumbered with the whole mortgage, as she purchased with notice, and was bound to know the law of contribution. And the rule is not varied by the fact that the first purchaser executed a mortgage on his portion of the farm to the original owner to secure a loan of money; nor by the fact that the present owner of the west half took collateral security to make good his grantor’s covenants.</p>

<p> License. Aqueduct. Fstoppel. Fraud. </p> <p>1. Paboi. License. A parol license to lay an aqueduct to a spring of water on one’s land is irrevocable during tlie existence of the aqueduct; and a court of equity, on the ground of equitable estoppel, will protect the licensee in the use of the aqueduct; and will grant and continue an injunction restraining the owner of the spring from interfering with the aqueduct until its decay; for a revocation of the license would operate as a fraud.</p> <p>2. And the licensee has the right to make such repairs on the aqueduct as may be necessary to keep it usable, but not such as in any just sense would amount to a renewal of the aqueduct.</p> <p>3. Mistake. Where there was a misunderstanding between the parties and the oratrix supposed that she was to have the water for nothing, but the defendant understood that she was to pay him at least nominal rent, so that she would not acquire title by possession, and the master found that the right to take the water was worth $8 per year, the injunction was continued on condition of payment of that sum.</p> <p>4. It seems that, at law, the licensor may revoke his license at any time.</p> <p>5. Distinction between a license and an easement stated.</p>

<p>Bill in chancery for the construction of a will. Heard on the'pleadings, Rowell, Chancellor.</p> <p>It was pro forma adjudged and decreed that by the true construction and meaning of the last will and testament of James McConnell, as set forth in said bill, it is the duty of the orators, as trustees, to keep the residue of the estate of said James McConnell, now in their hands, at interest with good and sufficient securities, during the natural life of said Mary Helen Doty, and pay to her annually the interest and income thereof; and at the death of the said Mary. Helen Doty, if she leave lawful issue surviving her, pay said principal sum of said residue to her said issue; but if she dies without lawful issue surviving her, then said residue to be distributed, one-half to the heirs of Greorge W. Chaplin, and the other half to the heirs of David A. Richardson; and the orators are directed to administer the trust reposed in them as to the residue of said estate in accordance with this construction of the said last will and testament of said James McConnell.</p> <p>The case appears in the opinion.</p> <p>The court refused to deliver the estate to Mrs. Doty before issue was born. Doty v. Ghaplin, 54 Yt. 361.</p> <p>In the interpretation of a will, the purpose of a court of equity is to ascertain and give effect to the intent of the testator ; and the intent is to be determined from the words of the will alone. Richardson v. Paige, 54 Yt. 373. The whole of a will must be construed together, and the intent of a testator must prevail. Qasey v. Oasey, 55 Yt. 518 ; In re Gushing’s Will, 58 Yt. 393; Randall v. Josselyn, 59 Yt. 557.</p> <p>The granddaughter took an absolute estate under the will. /Slowed v. Hastings, 59 Yt. 494. It was given for the “ proper use and benefit of herself.” Jones v. Bacon, 68 Me. 34; Harris v. Knapp, 21 Pick. 412. Whenever it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void. Ide v. Ide, 5 Mass. 500; Jackson v. Ball, 10 Johns. 19 ; 2 Redf. Wills, p. 278.</p> <p>There is, however, no necessary repugnancy between the clauses named. The whole will shows that, the testator intended by this clause, the same meaning, as though it had been expressed in this way : But if my granddaughter, Mary Helen Eddy, shall die without having had lawful issue living, then I give, etc. White v. White, 52 Conn. 518; Ooe v. James, 9 Atl. Rep. 392; In Matter of Railway Go. 105 N. Y. 89.</p> <p>The residue of the estate consists of money. That it is personal property affords us no aid in the construction of the language of the bequest,- as “ personal property may be subject to the same modifications of ownership as real estate, by way of executory devise.” 2 Redf. Wills, 654, n. 40 ; 2 Kent Com. 280.</p> <p>The case stands then upon the language of the bequest, and the fact that Mary Helen, now Mrs. Doty, did survive her mother, and has lawful issue living. She may not have such issue living at her death. That is uncertain. In the event that she does not, then this remainder or residue of the estate goes according to the provisions of the will to Chaplin and Richardson, if. the bequest to them is not void as repugnant to the devise to Mary Helen, as. some cases hold it may be.</p> <p>In many cases it is held that the intent of the testator is to govern in the construction of a will, and that is stating the whole law upon the subject, unless, indeed, his intent, as manifested in the will, is in violation of some unyielding principle of law. But the difficulty in the case is, what was the testator’s intent, — was it that Mary Helen should take this residue unconditionally and absolutely upon having lawful issue living, or did the testator intend to restrict this bequest by the subsequent provisions of the will ?</p> <p>Then to whom shall this residue be paid, or how shall the orators administer their trust? The cases relating to the subject perhaps answer the inquiry. We can add nothing to what is there said. . Hibbarcl v. Hurlburt, 10 Yt. 178 ; Richardson v. Paige, 54 Yt. 373; Smith v. Bell, 6 Pet. 68 : Meyer v. Snow, 24 Reporter, 263; Freeman v. Goit, 96 N. Y. 63; McOlosIcy v. Gleason, 56 Yt. 264; Randall v. Josselyn, 59 Yt. 557 ; 105 N. Y. 89 ; Hawkins, Wills, 207.</p>

<p>RepleviN for a colt. Heard on a referee’s report, September Term, 1887, Taet, J., presiding. Judgment for the plaintiff. The case appears in the opinion of the court.</p>

<p>Ejectment in common form. Plea, general issue. Trial by court, March Term, 1886, Eoss, J., presiding. Judgment for the plaintiff to recover of the defendants the seisin and peaceable possession of the premises and one cent damages and costs.</p> <p>The plaintiff and the defendants were adjoining landowners, and there was a dispute between them as to the exact location of their division line. The defendants’ land was described by courses and distances, and its east line was controlled by the east line of a store building standing upon it. The plaintiff’s land was simply bounded by the defendants’. The plaintiff did not claim that the defendants had invaded his property upon the land itself, but did claim that they, in changing the location and making repairs of their buildings, had projected the side of a roof on a barn and on a shed, some sixteen feet from the ground, over the division line and over the land of the plaintiff. Both parties had caused accurate surveys to be made, and they only differed in that one. surveyor, who fixed the line for the defendants, located his line from the side of the old store building, while the surveyor for the plaintiff located his by the foundation walls of the same building. The court found that the survey made for the defendants was of the correct line, but that the projection of the side of said roof, as the same was built by the defendants, did extend over said division line and slightly over the land of the plaintiff.</p> <p>After this suit was commenced, and after the surveys had been made, but before the trial, the defendants had cut away the entire projection of the roof of their buildings, so that at the time of trial no part of said buildings came to the line, but said buildings were entirely upon lands of the defendants.</p> <p>The action of ejectment will lie only for real property, as land, or something annexed to land upon which an entry might in fact be made, and of which the sheriff could deliver actual possession. 2 Crabb Eeal Prop. 2484; Tyler, Eject. 37; 3 Bao. Abr. 273 ; Rowan v. Kelsey, 18 Barb. 484; Jackson v. May, 16 Johns. 273 ; Child v. Chappell, 9 N. Y. 246.</p> <p>Ejection lies to recover possession where the'sheriff can.give possession. Patch v. Keeler, 27 Yt. 252; B.. L. s. 1247. But here a sheriff can do nothing with a writ of possession, but abate a nuisance.</p> <p>It lies only for property that is tangible. 4 Bouv. Inst. ss. 3654-7. The wrong must amount to an ouster. 4 Boua^. Inst. s. 3659 ; Tyler, Eject. 83 ; Oooley v. Penfield, 1 Yt. 244; Stevens v. Griffith, 3 Vt. 448 ; Skinner v. McDaniels, 4 Yt- 418 ; Ohamlerlin v. Donahue, 41 Yt. 306.</p> <p>We find but a single case that sustains the plaintiff’s position — Sherry v. Freaking, 4 Duer, 452, — and that was overruled by Aiken v. Benedict, 39 Barb. 400. See Vrooman v. Jackson, 6 Hun, 326. The only remedy is an action on the case for the injury. Wood, Nuis. s. 105 ; Tyler, Eject. 38 ; Reynolds v. Clark, 2 Ld. Kaym. 1399. Ejectment will not lie against one claiming an easement in land. Wash. Ease. 2693. Nor will a writ of entry. Smith v. Wiggins, 48 N. II. 109. The right to use water in a stream cannot be determined in a real action. Hobbs v. Gould, 10 Atl. Rep. 457. Turning a stream of water upon another’s land does not constitute an ouster. Perrine v. Bergin, 2 Green. 255,</p> <p>The only question involved is the right of recovery in ejectment for an overhanging roof.</p> <p>Ejectment is, in general, by the common law, only sustainable for the recovery of the possession of real property, upon which, in point of fact, an entry might be made, and of which the sheriff could deliver actual possession. 1 Chit. PI. 188; Tyler, Eject. 37.</p> <p>Ejectment was held the proper remedy, for space above the land, as where an adjoining roof overhangs it, upon the principle that land embraces all above and below it to an indefinite extent. ‘Sherry v. Breaking, 4 Duer, 452. This was disapproved in Aiken v. Benedict, 39 Barb. 4£)0, showing an even balance in the court of New York. Also for a chamber without land. 9 Pick. 297 : 58 Am. Rep. 447; Sedgw. & W. Tit. Land, pp. 44, 49. Also for oil wells and veins of minerals. 88 Penn. St. 32, 198.</p>