Volume 61 — Vermont Reports

<p>The first two of these cases were petitions praying for the appointment of commissioners to determine the points of connection and crossing for the railroads of the several parties. The third case was a cross petition of the Granite Railroad Co. against the Barre Railroad Co., praying for the same relief. The three cases were referred to the same commissioners, and heard together upon the report of such commissioners at a special term of the Supreme Court. The facts appear in the opinion.</p> <p>Who has the prior right on the Burnham meadow ? One railroad company cannot take the land'of another without express legislative authority; Central Vt. R. R. Co. v. Woodstock R. R. Co., 50 Yt. 452.</p> <p>Hence the company which took this land first will hold it. The Granite Co. filed a location in the town clerk’s oflice. Before anything farther had been done towards acquiring title, the Barre Co. bought it and took a deed. Is the filing of the location a taking within the meaning of the statute % The language of the statute is, R. L. s. 3355, that suclvlocation shall be filed before commencing proceedings to acquire title. This therefore is not the taking, but what must be done before the corporation can begin to take. The company does not acquire any right or interest in the land, nor does the land owner acquire any right to claim damages. Stacy v. Vt. Central R. R. Co., 27 Yt. 39 ; First Nat. Bank v. West River R. R. Co., 49 Yt. 167.</p> <p>It is believed that the filing of the location gives no peculiar right to the company filing to build its road on that location, except in those States where upon the filing the land owner acquires the right to bring .suit for his damages. Charlestown R. R. Co. v. Commissioners, 7 Met. 78 ; Morris R. R. Co. v. Blair, 9 N. J. Eq. 635 ; Wadhamv. Railroad, 6 Wright, 310 ; Beal v. Penn. R. R. Co., 86 Pa. St. 509 ; Davis r. Titusville R. R. Co., 30 Am. & Eng. R. Oas. 341.</p> <p>The Barre Co. claims under and by virtue of a prior contract •with the land owner. This contract was not recorded, but the Granite Co. have lost nothing by reason of this fact. It has •expended nothing in consequence of ignorance in this respect.</p> <p>As to the right to cross the side-tracks in the granite yards. The corporation had no authority originally to build these sidetracks, inasmuch as they were built not to a public, but to a private place, and condemn the land for that purpose. In re Miagara Falls R. R. Co., 108 N. T. 375; E. R. R. R. Co. v. Babcock, 15 N. E. Rep. 678 ; Getz’s Appeal, 3 Am. & Eng. R. ■Cas. 186, and notes.</p> <p>If that company could not in the first place take the land for that purpose by the right of eminent domain, it cannot now prevent another company from taking under such circumstances •that it could originally take it from the owner by that right. At all events the Barre Co. has the. same right to cross these sidetracks that it would have the main line. Fast St. Louis R. R. Co. v. R. R. Co., 108, 111, 265 ; Chicago <& AltonR. R. Co.v. Railroad Co., 105, 111, 389. See notes to last case in 14 Am. -& Eng. R. Cas. 62.</p> <p>The right of eminent domain is in the legislature. This right may be delegated, and with respect to crossings has been dele-. ..gated to-the Supreme Court. R. L. ss. 3398-3400. In the exercise of this power, the court has equity jurisdiction. Sec. 3403.</p> <p>The prior right over the Burnham meadow is in the Granite Co. It filed its location before the Barre Co. took a deed of the land, and without any notice of any contract by which it Jhad any right'to or in the land. If the right thus acquired can be defeated by subsequent purchase by another railroad company, then a location is useless. R. L. s. 3355 ; 46 Vt. 110 ;. Pierce on Railways 157; Morris <& E. R. R. Go. v. Blair, 1 Stock. 635 ; Wateriury v. Dry Booh Go., 54 Barb. 388.</p> <p>The Granite Co. followed up this location immediately by an-assessment of damages, and thus perfected the right which it had acquired by the location. 1 Red. on Rail. 323 ; 1 id. 240;: 2 Woods on Rail. 744; 42 Vt. 268; 12 Philadelphia R. 642.</p> <p>The sidetracks were put in under an arrangement with the-land owners. They have been there for years, used by the-company as a part of its system. It has acquired the right to have them so considered. Bangor R. R. Go. v. Smith, 47 Me 46; 3 Kent Com. (8th Ed.) 562-3; 35 Iowa 129; 1 Wood’s-Rail. 608-9; MoAuley v. Western Vt. R. R. Go. 33 Vt. 311..</p> <p>There is no public necessity for crossing these sidetracks in this manner, and hence it should not be permitted. It could not be done wdthout an express legislative grant, and here the-court takes the place of the legislature. Rorer on Railways 214 ; Pierce on Railways 155-6 ; 4 Cush, 71-3 ; 64 N. Y. 547 ; 124 Mass. 368; 1 Red. on Railways 265 and note; 6 Vroom 328 ; 10 id. 28 ; 24 N. J. Eq. 217; 25 id. 565; Pittsburgh, J.,. R. R. Go's Appeal, 4 Cent. Rep. 263.</p>

<p> Will. Revocation. Evidence. </p> <p>Where a later will is relied upon to revoke the will propounded, such later will must he established by the same evidence as though it were presented for probate itself, and the fact of- revocation cannot be shown in any other way.</p>

This was a suit in equity brought by J. G. Benedict, Administrator of Sarah Wales, in behalf of himself as such administrator, and other unsatisfied.creditors of the estate of Henry Bow-dish, against Asaph D. Hayward, executor of and trustee under the will of Lora Bowdish, and George L. Harrington, administrator of the estate of the said Henry Bowdish, deceased, and Candace A. Bowdish, widow of the said Henry Bowdish. The defendant Hayward' demurred to the bill.

This was a complaint charging the respondent with keeping intoxicating liquor with intent to sell. The respondent pleaded in bar a former conviction, to which the State demurred. The Court, Washington County, March Term, 1888, Rowell, J., presiding, sustained the demurrer, and adjudged the plea insufficient; to which the respondent excepted.. The nature of the plea, and the question raised by the exceptions appear in the opinion.

<p> Demurrer. New Assignment. Pleading. </p> <p>1. -Where the plaintiff claims that the defendant’s plea of the statute of limitations is not an answer to his new assignment, he should traverse such plea, and not demur.</p> <p>2. The plaintiff declared in the common counts, and afterwards new-assigned, setting up a contract and a breach thereof within six years , and thirty days prior to death of deceased. The defendant pleaded non accrevit within such six years and thirty days, to which plea the plaintiff demurred.. Held, that the demurrer should be overruled; thatthe statute of limitations was a good defence to the contract set out in the new assignment, and that by the demurrer the plaintiff admitted that the-facts stated in the plea existed.</p>

This was an information charging the respondent with the larceny of eight sheep, of the value of throe dollars each. To this information the respondent demurred, claiming that a prosecution for this offense could only be begun by indictment. The Court, Orange County, June Term, 1886, Rowell, J., presiding, overruled the demurrer, and adjudged the respondent guilty, to which the respondent excepted.

<p>This was an action of general assumpsit to recover taxes paid under protest, and was tried by jury at the September Term of the Windham County Court, 1887, Ross, J., presiding. The taxes in question were assessed on the grand list of 1885. Section 29 of No. 2 of the Acts of 1882 reads as follows : .</p> <p>“ Each lister shall take and subscribe and file in the town clerk’s office before entering upon the duties of his office the. following oath, and the oath as subscribed shall be recorded in the town or city clerk’s office :</p> <p>'I, do solemnly swear (or affirm) that I will appraise all the personal and real property subject to taxation in the town (or city) of , so far as required by law-, at its true value in money, and will set the same into the grand list of said town (or city) at one per cent of its true value in money, ancj. will faithfully discharge all the duties conferred upon me by law. So help me God.’</p> <p>And if the listers violate such oath they shall be guilty of perjury and punished accordingly.” .</p> <p>Note. — First heard at the February Term of the Windham County Supreme Court, 1888. Re-argued at the General Term, 1888. • Filed Feb. 1, 1889.</p> <p>The listers in case of the list in question added to the above oath next before the words “So help me God,” the words “'to the best of onr judgment.” The plaintiff claimed on the trial that this was such a departure from the prescribed form as to to render the list void. The court held otherwise and the plaintiff excepted.</p> <p>The plaintiff was chairman of the selectmen of the town, and as such made out the rate bills under which the tax was collected, and put them into the hands of the collector for collection. i</p> <p>The grand list was unlawfully made because of the interlineation in the preliminary oath. The statute has prescribed the taking of a particular oath. That statute is mandatory, and the listers have no discretion in the premises. The statute declares that the taking of that oath shall be perjury, and the listers have no right to substitute any other for it. They have no right to judicially determine what this oath means. The course of the Legislature in omitting from the form of this preliminary oath as prescribed in 1872 almost the exact words which these .listers have incorporated shows that that body did not intend them to be there. Newell v. Whitman, 58 Yt. 341; Fairbanks c6 Co. v. Hittredge, 24 Yt. 13 ; Wilson v. Marshall, 34 Yt., 359; Smith v. Hard, 59 Yt. 13 ; Walker v. Burlington, 56 Yt. 131.</p> <p>The interlineation of the words “ to the best of our judgment” does not vitiate the oath. They neither add to nor detract from nor qualify in the least particular the oath formulated by the Legislature. Henry v. Chester, 15 Yt. 460 ; Spear v. Brain-tree, 24 Yt. 414; Wilson v. Marsh, 34 Yt. 310 ; Ayers v. Moulton, 51 Yt. 115 ; Day v. Peasley, 54 Yt. 352 ; Wilson v. Wheeler, 55 Yt. 446; Newell v. Whittingham, 58 Yt. 341.</p>

Assumpsit for rent. Flea, the general issue. Trial by jury, Chittenden County, September Term, 1887, Tyler, J., presiding. Exceptions by the plaintiff.

This was an action for the false warranty of soundness in the sale of a hor^e. Plea, the general issue. Trial by jury at the December term of Caledonia County Court, 1887, Tart, J., presiding. Verdict for the defendant, exceptions by the plaintiff. The evidence of the plaintiff tended to show that the defendant represented the horse to be sound and all right except his feet, while the defendant denied this.

Assumpsit. The case was heard at the March term of the Washington County Court, 1888, Rowell, J., presiding, upon a stipulation that all pleadings proper to be filed by either party should be treated us filed, and an agreed statement of facts, which was as follows: “July 25, 1872, the plaintiff borrowed of the defendant $4,950, for which he executed his promissory note of that date for the sum of $5,500, payable five years after date, with interest annually, and secured by…

<p>This was a petition brought by the orators against the defendants, N. F. Eider and Annie F. Eider, his wife, to foreclose two mortgages. The case was referred to a special master and heard upon the pleadings and the report of such master at the December Term, Addison County, 1887.</p> <p>It appeared from the master’s report that the first of said mortgages was one given by defendants to one Eich ; that there was then due on this mortgage the sum of $1,325.63, and that there was no controversy between the parties with reference thereto. The second mortgage was one given to the petitioners, by the defendants, of the sole and separate property of the wife, to secure the performance of a contract entered into between the defendant, N. F. Eider, on the one part, and the petitioners on the other, May 27, 1881. By the terms of this contract Eider was appointed the agent of the petitioners to carry on and manage their drug business, in the village of Middlebury, and was put into possession of a stock of goods, with certain furniture and fixtures belonging to the petitioners, for that purpose. The contract was to continue indefinitely, subject to the right of either party to terminate it, on written notice. Articles 4, 5 and 6 of the contract are as follows:</p> <p>“ 4. He, the party of the first part, hereby agrees that he will manage the business in a faithful, careful and skillful manner and for the best interest of the party of the second part, and in so doing he will from time to time replenish the stock in trade by making all necessary purchases with funds derived and taken in sale of the present stock of goods, and pay promptly for the goods so purchased' on or before the bills become due and payable.</p> <p>5. That at all times he will keep an account of the sales and purchases and render to the party of the second part, or either of them, such account and any other information concerning the business on demand together with a true inventory on the first day of June and January next and once in six months thereafter during the agency.</p> <p>6. And at the same time render and pay to each of the parties of the second part one-fourth of the net profits of the sales made to the time of such inventory, he first paying the rent of the store, the taxes and insurance upon the stock, etc., out of the avails of the sales made, and what of rent he shall realize out of the use of the second story rooms not including the rooms occupied by the said Porter so long as he continues to occupy them.”</p> <p>Article 13 was as follows :</p> <p>“13. And the party of the second part in consideration of the service of the party of the first part in said business, and of his aforesaid agreements and undertakings, on their part agree that the party of the first part may keep and take and use as his own one equal half of the net profits of said business provided that the other half to be rendered to the party of the second part as aforesaid amounts to as much or more than six per cent upon $1,500, and it it does not amount to six per cent then he is to pay to the party of the second part six per cent and retain the balance if any to his own use. And at the termination of the agency or in the case of a total loss by fire and the payment of insurance by the company or companies insuring said stock, furniture and fixtures, there shall be paid to the wife of the party of the first part the whole sum that shall be of assets of said business, whether in cash, goods, furniture and fixtures, less $1,500, and the half of the net profits aforesaid, or six per cent in lieu thereof.”</p> <p>Rider went into possession under this contract, and continued in possession as the agent of the petitioners until Jan. 21, 1887, when the petitioners took possession. He did not pay for new goods purchased according to the terms of the contract, but there were due and outstanding bills of that nature to a considerable amount both at the termination of the agency and at the time of the hearing before the Master.</p> <p>In the early part of the year 1886 the petitioners had become dissatisfied with' the way in which the business was being conducted, and called upon Rider for an accounting. Thereupon an accounting was gone'into between them, and a settlement effected April 1, 1886, of all matters up to that date, upon the strength of which Rider was permitted to continue in the business. In this settlement of April 1 the defendant claimed that he should be allowed the sum of $215, which he had paid for ‘clerk hire, and insisted that soon after the beginning of his agency the petitioners had authorized him to employ a clerk at the rate of $2 per week, and that he had actually employed one and paid him the above sum. The petitioners insisted, that they had only authorized the employment of this clerk through the soda-water season. In the settlement of April 1 this item of clerk hire had been adjusted by the parties, by allowing the sum of $12’. The master found that the employment of the clerk was authorized by the petitioners h)r an indefinite time, and that Rider employed the clerk with the knowledge and consent of the petitioners until April 1st, 1887, and ought to be allowed therefor.</p> <p>After the petitioners took possession of the property they endeavored to have Rider take it at $1,500, cash, and made an earnest effort to sell it for $2,000 or less. Finally it was advertised and sold at auction for $1,700. The master found that it did not appear that such property was worth when sold more than such sum of $1,700.</p> <p>It appeared that in accordance with the terms of the contract inventories had been made from time to time, the last made in January and February, 1887, footing up at about $2,700. The defendants claimed that the inventories fixed the value of the property, but the master reported that such was not the intention of the contract nor the understanding- of the parties.</p> <p>The petitioners had carried on the business between Jan. 24, when they took possession of the goods, and April 1,. when they were sold, as they claim, for the purpose of winding up matters between themselves and the defendant, and in so doing had incurred certain expenses. They had also sold goods from the stock and bought in others. The amount which they had received for goods so sold exceeded the amount which they had expended in purchasing new goods by $69.52. Treating the value of the goods sold April 1,1887, as what they brought at auction, $1,700, the master found that there was due the ora'tors on that date a balance of $501.76.</p> <p>Upon the foregoing facts Tyler, chancellor, decreed, pro forma, that the defendants pay to the orators the sum of $1,325.63 and interest, thereon from June 13, 1887, and the costs of suit to be taxed by the clerk, on or before the first Monday after the second Tuesday in December, 1888, and in default thereof be foreclosed of all equity of redemption in the premises. From this decree both parties appealed.</p> <p>The article of clerk hire was adjusted by the settlement of April 1st, and cannot be gone into now. That settlement was a deliberate one; this item was especially discussed and the defendant was allowed to proceed with the business by reason of the adjustment then arrived at. There was no mistake of fact or law. 6 Paige 95 ; 4 Paige 481.</p> <p>"No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestions supported by doubtful or only probable testimony.” Marshall, O. J., in Chappedelaine v. Decheneaux, 4 Cranch 306. See note to Lockwood v. Thorne, 62 Am., Dec., ’85.</p> <p>N. E. Eider had the right to bind’his wife by such statement of account. It was a part of his duty under the contract to render such accounts, and her mortgage was given to secure the results of such accounting. Holts v. Butler, 56 Miss. 333.</p> <p>The settlement of April 1st lacks the essential elements of an account stated. 1 Wait Act. and Def. 195 ; 6 id. 424.</p> <p>If it has any force as such, it is only prima facie, transferring the burden of proof to the party seeking to open it, and is only binding upon the defendant, N. E. Eider. Ltehillv. McTague, 114 Fenn. 93 ; Hutchinson v. Market Bank, 48 Barber 324 ; Bullock v. Boyd, 2 Ed. Ch. 293. The parties themselves and the master treated it as a matter to be corrected and completed.</p> <p>The liability of the defendants under the second mortgage depends on the construction of the contract. The main question is what constitutes the “ cash, goods, furniture and fixtures ” at the termination of the agency. There is no finding in the report as to their value at that time, except what is derived from the inventories, nor is there any finding that the assets were not at that time $2,700, as established by the inventories taken by both the orators and defendants. Eider had received a stock of goods valued at $1,500, and he had returned enough to make good to the orators this sum and their share of the net profits, therefore there was nothing due under the mortgage.</p>

This is a suit in equity brought by the town of Ripton against the administrator of Irvin D. McQuivey, Eliza J., widow of the said Irvin D.-, certain children of the said Irvin and Eliza, and Joseph Battell. The defendant, Battell, demurred to the bill for want of equity. The defendant, Eliza J., answered. The case was referred to a special master, and upon the coming in of his report was heard upon the pleadings and such report.

<p> Attachment. Change of Possession. Crops. Increase of Stock. </p> <p>1. H. was the owner and in the occupancyof a farm consisting of two'parcels, the home place, on which were the buildings, and the back lot, used in connection with the other. The home place was mortgaged to T., the back lot to D. T. had foreclosed his mortgage, and the decree was about to become absolute. Thereupon the plaintiff paid up the decree, and took a quit-claim deed from T. At the same time he gave H. ‘a bond for a deed. Both the deed and bond were recorded. H. continued to live with his family on the farm apparently in the same relation to it and the property upon it that he had always been. Plaintiff {in reality) made a trade with H. to carry on the farm for a fixed price, and went to reside in the family of H. where he continued for about two years. This was in 1881. Hov. 12, 1883, H. executed a deed of the back lot to plaintiff, which was recorded the same day. Held, that the crops raised on the home place in 1883, and 1884, and on the back lot in 1884, were attachable on the debts of H. as against the plaintiff.</p> <p>2. The plaintiff has good title to the increase of stock sold to him by H. and remaining on the farm which was raised after the sale of the personal property to plaintiff.</p> <p>3. The vendee of property exempt from attachment acquires a title to such property and its subsequent increase, good against the creditors of the vendor without any change of possession.</p> <p>4. .Fraud in fact must be found by the trier of fact, and cannot be inferred by the court.</p>

<p>This was a suit in chancery. The bill alleged that some time previously the orator had bought of the defendant a colt, for which he had given the defendant his note with the condition that the colt should be the property of the defendant until the note was fully paid; that since the giving of said ' note there had been other deal between them, a“nd that there was due the orator a large balance from the defendant, more than sufficient to discharge the balance of the note, and that if upon an accounting between them anything should be found due from the Orator, he was ready and willing to pay such balance to the defendant; that the defendant for the purpose of embarrassing the orator liad begun a suit in trover against him for the conversion of the said colt, and that such suit was then pending; that since the giving of said note the orator had taken the farm.of the defendant to carry on upon shares, under a written memorandum, and that the defendant was largely liable to the orator under such written memorandum, but that the same was in the possession of the defendant, who refused to exhibit, to the orator, or to settle with him, and allow him the amount his due ; that in the making of the said farm trade lié had been largely damnified by the false representations of the defendant; that he had taken possession of the defendant’s farm, and carried on the same, and that the defendant utterly refused to account to him in the premises ; praying that an account be taken between the parties, and that if upon such an accounting there is any balance due the defendant upon said note, the orator may be allowed to pay the same and redeem the colt, and that the suit at law be perpetually enjoined.</p> <p>The answer admitted the making of the farm trade, and set out the contract in extenso ; denied that there was any balance due the orator on it, or that the note secured by lien on the colt had been paid; insisted that the orator had a complete remedy at law, and that therefore the court had no jurisdiction.</p> <p>The case was referred to a master who reported with reference to the circumstances under which the farm was leased¿¡and colt sold as follows :</p> <p>“ A few days before the lease was executed but when the •contract was in contemplation, the defendant sold to the orator a four-year-old horse colt at an agreed price of $116 and took from him his promissory note therefor and reserved a conditional lien on said colt for the security of the payment of said note by the orator.</p> <p>I find that it was the express understanding and agreement between the parties at the time this conditional sale was made and the note given by the orator, they then having in view the farm trade for the ensuing year, that the orator’s share of the money that should be derived from the sale of butter produced on the farm, when it should be sold in the fall of the ensuing year, should be applied first to the payment of this note, and that the orator and defendant both so understood it.”</p> <p>When the butter was so sold, there was more than enough of the orator’s share to extinguish the note, and the orator desired that it should be'so applied, but the defendant refused to so apply it, and claimed to retain it as security for the fulfilment of the terms of the lease on the part of the orator.”</p> <p>With reference to items 12 and 13 the master reported:</p> <p>“If in the opinion of the court the orator- can'recover damages in this suit for the false representations made by the defendant to the orator as to the productiveness of said farm, then I find that the difference between what the farm was represented to be and what'it really was, amounts to the sum allowed on these two items, $118, and that they should be disallowed to the defendant; but if in the opinion of the court such damages cannot be recovered by the orator in this suit, then said items should be allowed as designated above.”</p> <p>There had been other deal between the parties, and as a result of the entire accounting the master found that, allowing items 12 and 13, there would be due the defendant the sum of $75.02, March 1, 1881; that disallowing said items, there would be due the orator on said date the sum of $12.98.</p> <p>The defendant had demanded the colt of the orator, and on ■his refusal to surrender the same, had begun a suit against the orator in trover for its conversion, which was then pending.</p> <p>The master further reported that the defendant insisted at the earliest possible moment before him, that this suit could not be maintained for the reason that the orator had a complete remedy at law.</p> <p>To this ■ report the defendant filed exceptions, and the case was heard at the March Term, 1888, Washington County, Row-ell, Chancellor, upon the pleadings, report and exceptions thereto, whereupon it was ordered that the bill be dismissed. Appeal by the orator.</p> <p>The objection to the jurisdiction should be brought to the attention of the court at the first opportunity, and before the expense of a trial has been incurred. Hartford v. Ohipman, 21 Conn. 188 ; 1 Bom. Eq. Jur. 130 ; 1 lían. Ch. Pf. 52; First Soc. v. Trustees, 23 Pick. 118 ; Hóbbi v. Underhill, 3 Sandf. Ch. 277; Olastenbury v. Est. of McDonald, 11 Yt. 150; Wade v. Pulsifer,*51 Yt. 15 ; Paine v. Slocum, .56 Yt 504; Hoyt v. Hoyt, 58 Yt. 538 ; Smith v. Rock, 59 Yt. 232 ; Titilar v. Baxter, 59 Yt. 467 ; Me Lane v. Jolinson, 59 Yt. 237.</p> <p>Chancery lias jurisdiction. The hill was in the nature of a bill to redeem mortgaged property, and have the note delivered up to the orator to be cancelled. Blodgett v. Blodgett, 48 Yt. 32; Flanders v. Chamberlain, 24 Mich. 305 ; Patchin v. Pierce, 12 Wend. 61 ; Charter v. Stevens, 3 Denio 33 ; Hey-land v. Badger, 35 Cal. 404.</p> <p>Courts of chancery have concurrent jurisdiction with courts of law in matters of account between tenants in common and partners. Spaulding v. Holmes, 25 Yt. 491; Leach v. Beattie, 33 Yt. 195; Adams Eq. (star paging) 222.</p> <p>The defendant cannot recover damages from the orator springing out of a contract induced by his own misrepresentation, thereby obtaining the benefit of his own fraud.</p> <p>It is well settled that a party, cannot resort to equity if he has a complete remedy at law. In this case a suit was pending at law, and every matter of defence could have been made available to the orator in that suit which can be urged in this ; nor is it too late to take advantage of this. The defendant in his answer ■sets out the want of jurisdiction, and craves the same benefit of that allegation as though urged by demurrer, and insists upon this want of jurisdiction at the earliest opportunity before the master. Webb v. Fuller, 1 N. E. Rep. 296; Bole v. Pike, 2 N. E. Rep. 247; Wing v. Hall, 44 Yt. 118 ; Currier v. Rose-brooks, 48 Yt. 34; Smith v. Pettengill, 15 Yt. 82.</p>

<p>This was a suit' in chancery, returnable to the March Term, 1872, Rutland County, brought by Horace H. Dyer and four others, “all being inhabitants and tax-payers in the present school district No. 2, in Rutland, who bring this bill in behalf of themselves and such tax-payers in said school district as may choose to come in and participate in the proceedings thereon, and contribute to the expense thereof.”</p> <p>The bill alleged in substance that districts Nos. 1 and 2 in Rutland were originally one district known as district No. 1; that on the I5th of April, 1871, said district voted to-build a school house and to purchase a lot of land for the same, located the school house on the Blanchard lot, appointed-a building committee, and voted a tax of seventy-five cents on the dollar of the grand list of the district to defray the expense of building said house, and that said tax should b e collected and paid into the treasury before July 1st ensuing; that tibe town of Rutland by two special town meetings, held on the 5 th and 27th of June, 1871, divided said original district into two school districts to be known as district No. 1 and No. 2 ; that after the vote to build a school house, and before the vote of the town dividing the district, original district No. 1 had purchased a lot for a school house, and materials for the same, and that after the vote of division and before the bringing of this suit, said district had purchased other material, and made contracts for the building of the school house, and begun its erection.</p> <p>That Stephen Clemons was the collector of original district No. 1, and as such held a rate bill and .tax warrant for the collection of said tax of áeventy-five cents on the dollar, which he had demanded of the orators, and was about to collect.</p> <p>That the location of the school house on the Blanchard lot was unfair and one-sided, and that this was the main reason for the division of the district.</p> <p>The prayer of the original bill was as follows : “ That the said Stephen Clemons and the said school district No. 1 may be restrained and enjoined from collecting said seventy-five cent tax, or causing the same to be collected against your orators and the tax-payers of said new school district No. 2, and upon their lists of property situate in said district No. 2 on April 1,1871; and that an accounting be ordered between said districts Nos. 1 and 2, and a fair and equitable division of the assets and property of said original district No. 1 be made between said new districts by a proper and suitable person to be appointed by this Hon. Court.”</p> <p>Upon the filing of this bill an injunction was granted against the said Clemons, which, however, was dissolved upon the filing of an answer by the defendants the following January.</p> <p>The case was now continued from term to term until until 1886, when at the March Term the defendant, school district No. 1, filed a motion to dismiss for want of prosecution. Thereupon the orators moved for leave to amend their bill by making the said district No. 2 a co-orator. The court overruled the motion to dismiss, and, against the objection of the defendant, permitted the amendment. The defendant now filed an answer to the entire bill as amended, in which it insisted that the court had no authority to allow the amendment making district No. 2 a co-orator, and craving the same benefit of that objection as though made by plea or demurrer. As to the facts in issue, the answer alleged that the division of the original district was procured, after the vote to locate the school house, by those resident in present district No. 2 for the reason that they were dissatisfied with such location, and that after the vote to build the school house and before the vote of the town dividing the school district, the district had contracted debts in and about the construction of said school house to an amount-exceeding the sum ‘realized from the tax of seventy-five cents on the dollar. This answer was traversed, and a large amount of testimony taken by deposition; and the case came on for hearing at the March Term, 1887, on the pleadings, testimony, motion to suppress testimony, and stipulations. Taft, Chancellor, dismissed the bill, pro forma. Appeal by the orators.</p> <p>The seventy-five cent tax was not voted to pay any debt then existing against the district. The liabilities which had been incurred by the district under that vote were all after the matter of dividing the district had begun to be agitated, and after a town meeting for that purpose had been called. They were contracted for the sole purpose of compelling district No. 2 to pay a portion of this expense. The vote of the town did not contemplate this, and this court should carry out the intention of that vote as to property. R. L. s. 380 ; Hutchins v. Moody, 34 Yt. 433; Cummings v. Hill, 56 Yt. 384; 1 Dillon Mun. Cor., 3d ed., sec. 290 ; Stoddard v. Gilman, 22 Yt. 568.</p> <p>If the town was mistaken as to its poyrer to divide by vote the assets of the district, equity should effectuate the intention of the parties.. Potter v. Chapin, 6 Paige Ch. 639.</p> <p>R. L. ss. 549, 550 provide for the distribution of assets upon the division or dissolution of a school district. These provisions were not enacted until after the division of this district, but they ought to have a retroactive effect, being merely remedial in their nature. Bellows v. Weeks, 41 Yt. 590 ; Wade on Retroactive. Laws, ss. 24, 242 ; Hensmore’s Appeal, 59 Ra. St. 374.</p> <p>The objection to the right of the court to grant the amendments was waived by the answer. Wade v. Pulsifer,. 54 Yt. 45 ; Boss v. Shurtleff, 55 Yt. 177; Paine v. Slocum,'56 Yt. ■504.</p> <p>I. Suppose that this tax is illegal, will a bill lie to restrain its •collection 1 '</p> <p>Courts granting this relief seem to have done so on two grounds; first as removing a cloud from the title to real estate, as where the abutting lots upon a street are assessed for its improvement; . secondly, to prevent a multiplicity of suits. 'There is no allegation or proof that any of these orators áre the ■owners of real estate affected by this tax. The multiplicity of ¡suits which the court will interfere to prevent, is between the .same parties. If this tax was illegal, each one of these orators ■could maintain one suit, and no more. These orators may have •a common interest in the result of this suit in the sense that if ■one can recover, all can. But they have no such community of title as will warrant the bringing of a joint suit in their joint names. In those jurisdictions in which the equity practice is most in harmony with ours, such bills are not entertained. Cutting v. Gilbert, 5 Blatch. 259 ; Sheldon v. School Hist., .25 Conn. 224; Dodd v. Hartford, 25 id. 232 ; Youngblood v. Sexton, 32 Mich. 406 ; Heyward v. Buffalo, 14 N. Y. 534; Hows v. Chicago, 11 Wal. 108; Brewer v. Springfield, 97 Mass. 152 ; Lord v. Charlestown, 99 id. 208. . .</p> <p>But this tax was not invalid. It is conceded to have been valid when laid; at what point of. time did it become invalid ? A tax voted before the act of the town setting off can be enforced against those set off afterwards. Ovitt v.' Chase, 3T Yt. 196 ; Stevens v. Kent, 26 Yt. 504.</p> <p>II. Can this bill be maintained for an accounting between the two school districts, or between district No. 1 and the individual tax-payers in district No. 2 ? Certainly it cannot on the part of the individual tax-payers. The property of a district belongs to the corporation, not to the individuals. When an inhabitant removes from, or is set from the district, he does not become entitled to take with him an aliquot part of the property; if so, what part ?</p> <p>Neither can the district claim an accounting as a district, for the only title which district No. 2 has to this property is derived from those residing within its limits; and if they have no title they can give none.</p> <p>In the case of these quasi municipal corporations, like towns and school districts, the authority dividing has authority to apportion the assets of the municipality held for municipal purposes ; and if it neglects to so apportion, then the real estate at least, and this district had no other property, belongs to that portion of the municipality within whose territorial limits it is. Dillon Munic. Cor. secs. 188, 189 ; School lHst. Kb. 1 v. Richardson, 23 Pick. 62; School Rist. Ko. 6 v. Tapley, 1 Allen 49 ; Laramie Co. v. Albany Co., 92 U. S. 307; Korth JLemstead v. Remstead, 2 Wend. 109.</p> <p>The town or the legislature was the only tribunal having authority to apportion this property. No. 2 procured itself to beset off without procuring at the same time such an apportionment. The aggregate number of inhabitants composing No. 2 .stands exactly as a single individual would who had voluntarily-withdrawn from No. 1.</p> <p>III. The court had no authority to grant the amendment making district No. 2 aco-orator. The suit was thereby converted into-an entirely different suit, viz., one for an accounting between the districts. The original orators would no longer be proper .parties, either as orators or defendants. We submit that even a court of chancery has no right to strike out all the orators and •call in entirely new ones, wheu the original orators would no longer be proper parties in any capacity.</p>

<p>Wlint v. Day, 9 Yt. 315; Wash v. Skinner, 12 Yt. 219; Strong v. Ricker, 16 Yt. 551; Sylvester v. Downer, 20 Yt. 355 ; Hunt v. Adams, 5 Mass. 358.</p>

<p> Mortgage. Assignment of Motes. Legacy to Debtor. </p> <p>1. Where the holder of mortgage notes assigns a portion of them without any agreement as to the mortgage security, such assignment carries with it toy operation of law an assignment of a proportionate share of the security. . .</p> <p>2. Where the assignee of a part of such mortgage notes has also another fund to which he can resort for their payment, he should first resort to such fund.</p> <p>3. Where the maker of the notes was the legatee of the orator’s testatrijc, the foreclosure toeing brought for the benefit of the estate, held, that the acy was such a fund, and that the orator should apply that fund first in discharging other unsecured debts to the estate from the maker, and then in paying these mortgage notes.</p> <p>4. The answer in this cause not being sufficient to permit the granting of the proper relief, the case was remanded to the court below, with costs to the orator up to this time, for the purpose of allowing such further proceedings as might toe necessary in the premises.</p> <p>Note. — First heard at the May Term of the Caledonia County Supreme Court, 1887. Re-argued at the General Term, 1888.</p>

<p>Trover for tbe conversion of a horse. Heard at tbe December Term of tbe Caledonia County Court, 1887, Taft, J., presiding, upon referee’s report, and exceptions of tbe plaintiff" thereto. 'Judgment for tbe defendant. The plaintiff excepts.. Tbe facts appear in the opinion.</p> <p>The court which adjudged the plaintiff liable as the trustee of' Ihe defendant had jurisdiction of the parties and the subject matter; hence its judgment is binding, and cannot be attacked collaterally. Usher v. Williams, 56 Yt. 587 ; Porter v. Gile,. 47 Yt. 620 ; Tappan v. Nutting, Bray. 137; Stearns v. Stearns, 32 Yt. 678 ; Spafford v. Page, 15 Yt. 490; Stearns v. Wrisley, 30 Yt. 661; Holmes v. Clark, 46 Yt. 22, 27.</p> <p>The horse was exempt from attachment, and the debt for it evidenced by the note was not therefore subject to trustee process. R. L. sec. 1076 ; Hastie v. Kelley, 57 Yt. 293.</p> <p>The plaintiff knew when he made his disclosure that Bngbee claimed to own this note. He also knew that the horse was exempt from attachment. He should have fully disclosed these facts. Not having done so, he is not entitled to the benefit of the judgment against him as trastee, which was the result of his ■own negligence or fraud. Holmes v. Clark, 46 Yt. 27; Lara-•bee v. Knights, 69 Me. 370; Smith v. Stratton, 56 Yt. 362; McConnell’s Trustee Pros. secs. 301, 386.</p>

<p>This was a suit in chancery brought to 'the Washington County Court of Chancery. The bill alleged that in the year 1822 the General Assembly of the State of Yermont laid a tax of three cents per acre on the lands in the township of Worcester, in the county of Washington, for the construction and repair of the public highways, and that .one Joshua Y. Yail was by the • act appointed the collector to collect the said tax; that the tax on lot No. 52 in the second division of lands not having been paid, tlie said collector proceeded to sell the' same with due formalities to Charles Bulkley and James H. Langdon, the highest bidders therefor, for the sum of eleven dollars and sixty-eight cents; that on April 29, 1824, the collector caused his warrant and return, together with a certificate of the oath taken by him, and all other papers and documents required to be recorded, to be so recorded in the town clerk’s office in the said town of Worcester, and subsequently at different times in the year 1825 caused lists of the lands sold and not redeemed on the 1st of April, 1825, to be so recorded, and that lot No. 52 aforesaid was among the number so named; that the said Bulbley and Langdon thereupon became entitled to receive from the said collector a deed of the said land, which should contain a covenant of warranty, and should be good and valid in law, and acquired a right to compel the execution of such a deed by the proper proceedings; that the said collector did execute deeds of some of the lands so sold by him, but whether he ever executed one to the said Bulkley and Langdon the orator knew not, but if so, it had been lost or accidentally destroyed, and that no record thereof remained; that said collector had deceased and his estate been administered upon many years ago ; that the said lot had come from the said Bulkley and Langdon to the orator, who was the owner of the same; that Bulkley and Langdon, and those claiming under them had, ever since the tax sale, treated the lot as theirs, had paid the taxes on the same, and cut timber thereon, and that the orator in 1885 had put one Clogs-ton into possession of the same under a contract by the terms of which he was obliged to assure the title and possession to the said Clogston, and that the said Clogston was then in 'possession; that the defendant; well knowing the rights of the orator in the premises, had procured from various persons, who had no interest whatever in the premises, quit-claim deeds to the same; that in July, 1886, the defendant had brought a suit in trespass against the said Clogston for cutting timber on the said lot, and in February, 1887, began another suit against the said Clogston containing thirteen counts in trover for the conversion of the timber on said lot, and that these suits were then pending in the County Court for the county of Washington.</p> <p>The prayer of the bill was that the defendant might be perpetually enjoined from asserting his title to the said lot under the said deeds, from prosecuting his suits already begun, and from beginning any more in that behalf. Upon the filing of the bill a temporary injunction was granted in accordance with the prayer. The defendant made answer in which the defendant insisted among other things that the bill should be dismissed for want of equity, inasmuch as the orator had. a complete remedy at law, and craved the same benefit of this objection, as though the same has bean made by demurrer. At the March term, 1888, the case was brought on for hearing upon this demurrer so incorporated in the answer ; whereupon Nowell, chancellor, without hearing and pro forma, sustained the demurrer and •dismissed the bill. The orator appeals.</p> <p>The tax sale was valid. At the expiration of the time allowed for redeeming, the purchasers acquired a vested equitable interest in the land, and a right to compel the giving of a deed by the proper proceedings. Laws of 1822, p. 64; Slade’s Com. pp. -662-669; Isaac v. Shattuek, 12 Vt. 668; Wells v. Austin, 59 Yt. 157; Blackw. on Tax Titles, pp. 298, 299, 372-4; 2 Desty on Taxation, pp. 907, 912, 915; Me Cready v. Sexton, 29 Iowa, 356 ; Clippinger v. Tuller, 10 Elan. 377; Douglass v. Nuzum, 16 Kan. 515; Maxey v. Clabaugh, 6 111. 26 ; Graves v. Bruen, 6 ib. 167; State v. Wynn, 19 Wis. 304; Woodman v. Glapp, 21 Wis. 350 ; Eaton v. North, 32 Wis. 303.</p> <p>If the defendant owns this land, he can-bring a suit which will establish his title to it. The suits which he has brought do not, and are therefore strictly vexatious suits and should be restrained. Eoye v. Patch, 132 Mass. 105 ; King v. Chase, 15 N. H. 9 ; Roberts v. Robeson, 27 Ind. 454 ; Arnold v. Arnold, 17 Pick. 4; Morse v. Marshall, 97 Mass. 519 ; Parker v. Hotchkiss, 25 Conn. 321.</p> <p>The orator has such a title that he cannot establish it at law, hence he may apply to a court of equity.</p> <p>A deed was necessary to give the orator any title under the tax sale. There is no equity in such a title. The statute prescribes the formalities and requisites of the sale, and these must be strictly followed or nothing passes. The statute in force at the time of this sale required the collector to give a deed. No* deed was given, hence no title was acquired by virtue of the sale. Cooley on Taxation,* 352; Tilson v. Thompson, 10 Rick. 361-3; Hoffman v. Bell, 61 Pa, St. lié; Ives v. Lynn, T Conn. 505; Donohoe v. Veal, 19 Mo. 331; Blaclcw. on Tax Titles, 364 to 391; Douglass v. Dangerfield, 10 Ohio 152,159'J ■ We are unable to find a case where a court of equity has ever interfered to supply any omission in a tax title. In this case'it’ is asked to supply the deed itself. “A person who seeks the* benefit of a statute 'law must adhere closely to its provisions.” The burden of proof is on the person who claims under a tax title. Amson v. Balcer, 49 N H. 161, 171, 168 ; Livingston,, Admr., v. Pendergast, 34 N. H. 544; Sullivan v. Merriamy 16 Neb. 157; Baldwin v. Merriam, 16 id. 199 ; Seaman v. Thompson, 16 id. 246 ; Shelley v. Tole, 16 id. 194 ;. Donahue v. Veal, 19 Mo. 331.</p> <p>Equity will not interfere to assist the orator. It might compel the collector'or his representative to execute a deed, but the-defendant in this case is a stranger to that transaction. Mc-Ginnis v. Freedman, 17 Pac. Rep. 635, 636 ; High on Injunctions, sec. 651; Blackw. on Tax Titles, 498, 499 ; Young v. Dawling, 15 111. 481; Strade v. Washer, 16 Pac. Rep. 929.</p> <p>The payment of taxes does not aid the orator. Bleed v. Field, et al., 15 Yt. 672; Kidder v. Kenady, 43 Yt. 717; Wells v.. Austin, 59 Yt. 165-7 ; Thompson v. Benham, 61 N. Y. 52.</p>

This is a petition of the town of Strafford against the town of Sharon, returnable to the January Term of the Supreme Court for the County of Windsor, 1888.

<p> Railroad Companies. Land Damages. Estoppel. </p> <p>In 1869, T. mortgages to B. In 1871, the mortgagor being still in possession-but the mortgage overdue, the E. C. R. R. Co., under some arrangement with the mortgagor, constructed its road across the premises. In 1880-' the petitioner succeeded to the rights .of the E. C. R. R. Oo. In 1864 H.. was in adverse possession of a portion of the premises, and continued in such possession until he acquired title, which title he conveyed to • the E. C. R. R. Co. before the petitioner succeeded to its rights. Ini 1883 the defendant became the owner of this mortgage, foreclosed it against the mortgagor and the petitioner, and was put in possession, by virtue of a writ of possession, in 1886. Thereupon the petitioner-brought this bill to condemn the land. Held,</p> <p>1. That the petitioner was estopped from setting up in this suit the title-derived from H., inasmuch as that question might have been adjudicated in the foreclosure suit.</p> <p>2. That the defendant was not entitled, by way of damages, to the improvements put upon the land by the construction of the railroad across it,. but only to the actual damage'done the premises by such construction-with interest from the date when the petitioner went into possession-</p>

<p>Pauper. Residence of under No. 42, Acts of 1886. Vested Right.</p> <p>1. Tlie liability of towns for tbe support of paupers is purely statutory.</p> <p>2. Act No. 42,1886, makes such liability dependent upon tbe residence of the-pauper, without regard to any previous settlement.</p> <p>3. And that residence is to be determined without reference to whether it. was before or after the taking effect of the act.</p> <p>4. Hence, where upon the taking effect of the act, the legal settlement of the pauper was in E., but the necessary residence in W., held, that, thereupon E. ceased to be and W. became chargeable with his support.</p> <p>5. W. would acquire no vested right by virtue of the fact that, under the-previous law, E. was liable to and did support the pauper for a term of' years.</p>

<p>This was an action brought to charge the defendant town with the support of one John Cheedle, a pauper, and was heard in this court with the case of Worcester v. East Montpelier. It came here upon exceptions by the plaintiff to the judgment of the Rutland County Court, September Term, 1887, Rowell, J., presiding, where it was heard upon the following agreed statement of facts:</p> <p>“ Said Cheedle was born in Barnard in 1828 ; when eight years old he was bound out by the overseer of the poor of said town of Barnard to one Willard Crowell of Barnard and lived with him until he was twenty-one years old. Cheedle thereafter supported himself in Barnard until 1865, when he was taken sick and was thereupon supported by said Barnard until 1868. In 1868 Cheedle went to visit his sister, then residing in Stock-bridge, Vermont. The town of Barnard. • bore liis -expenses in going to Stockbridge and paid his sister toward his support for three or four months. The overseer of Barnard then or about that time requested Cheedle to return to the poor-house in Barnard. Cheedle did not return and thereupon Barnard declined further support. Cheedle remained in Stockbridge thereafter and thereupon took up his residence there, keeping house with his family and effects, supporting himself and family until the fall of 1882, when he removed to said Chittenden, where ho has been ever since. He supported himself in Chittenden until the spring of 1884:, when he was taken sick and thereupon said Chittenden was applied to for his relief and support. The overseer of Chittenden, at once, notified the overseer of Barnard of Cheedle’s condition, whereupon the overseer of Barnard came to Chittenden and assumed the support of Cheedle and entered into a contract with one Timothy Cheedle, a brother of the pauper, residing in Chittenden, to board said John. Under this contract the town of. Barnard supported said John Cheedle in Chittenden as aforesaid, from April 1,1881, until March 1,1887, when .the overseer of Barnard notified said Timothy that Barnard would support said John no longer. Since March 1, 1887, said Chittenden has furnished the support of said John. May 2, 1887, the overseer of Chittenden notified the overseer of Barnard as by the notice in writing hereto attached. While said John resided in Stockbridge as aforesaid, he did not gain a legal settlement in that town for the reason that an order of removal to Barnard was duly made on him and served on the overseer of Barnard, on the ground that said J ohn was liable to become chargeable to Stockbridge, which order was not appealed from.</p>

<p>This was an action of crim,. con. for debauching the plaintiff’s ~wife, returnable to the Washington County Court. Judgment was rendered against the defendant at the March Term, 1887, upon his failure to show cause for a continuance, and the -case was referred for the assessment of damages. Upon the coming in of the referee’s report the defendant filed exceptions thereto, •claiming that evidence had been improperly admitted in the following particulars:</p> <p>The declaration alleged that the criminal act was committed •on July 26th, and on divers other times between then and the 'date of the writ, August 10th. The evidence showed that the iplaintiff had no intimation of improper intimacy between defendant and his wife until about two weeks prior to July 26th, when, becoming suspicious, he notified defendant that he must not ■come to plaintiff’s house any more. On the night of July 25th plaintiff’s wife left home, professing that she was. going to visit her friends in Massachusetts. In fact she went to Montreal 'with defendant. Upon learning his wife’s infidelity, the plaintiff at once began proceedings for divorce, refusing to longer-live with her. While these proceedings were pending and subsequent to August 10, the defendant continued to visit the plaintiff’s wife and contributed to her support. To the reception of all evidence as to the relations between the partes criminisprior to July 26th and subsequent to August 10, the defendant-objected and excepted.</p> <p>The court, March Term, 1888, overruled the defendant’s exceptions to the report and gave judgment thereon for the plaintiff ^ to which the defendant excepted.</p> <p>The court also granted a certified execution against the defendant under his exception. The following extract from the bill of exceptions will best, show the question raised :</p> <p>“At the March Term, 1887, judgment was rendered in this; case against the defendant on his failure to show cause for a continuance,- and the ease referred to-— -, for the assessment of damages, and continued. At the September Term, 1887, Mr. Smilie was appointed referee, and the plaintiff moved' for a. certified execution, which was denied, but On what ground does-not appear, except that counsel for the defendant claim it was-because made too late, the court holding that it should have been, made the term before, when judgment was rendered. How this is I do not undertake to certify.</p> <p>At this term the referee’s report was recommitted for further findings, and, by consent of counsel, the case was ‘left with the. court,’ at the final adjournment of the term* on April 26th, so that, on the seasonable coming -in of the report, judgment might bo entered up and the case go into the May term of the Supreme-Court. Whereupon, the report having come in, the same and’ the exceptions thereto were sent to me on May 8th, at St. Johns-bury, by the clerk, and on May 9 th I received the same, and that day ordered the exceptions to be overruled and judgment to be entered on the report for the plaintiff, and at the same time drew up, signed, and forwarded to be filed, the defendant’s exceptions, to the- judgment.”</p> <p>Afterwards, on May 10, the clerk forwarded to me the plaintiff’s motion for a certified execution, filed that day and referred to. The motion was at once returned to the clerk, and he directed to call it to the attention of defendant’s counsel, if they did not ¡already know of it; and now, on the 14th day of May, defend•ant’s counsel complain that they were not sooner notified of the ■motion, and claim and insist that the judgment of the court •overruling the former motion is final and conclusive on this •question, and that the court cannot now properly entertain and grant a similar motion, and that the present motion is out of ¡tíme.</p> <p>The court thinks this term seasonable for filing such a motion ; and if the former adjudication is not conclusive, and the entertaining of this present motion not contrary to our practice, seeing that the question has once been passed upon in the case, and was seasonably filed at this term, and can now be acted upon,— ¡then the court entertains the motion, and adjudges that the cause •of action arose from the wilful and malicious act of the defendant, and that he ought to be confined in close jail.”</p> <p>The evidence of acts before and after the period covered by ¡the writ was clearly inadmissible. This is not a case where such •evidence is received to show the guilt. That was established by •the judgment, and the only question here is as ■ to damages.. Wood’s Mavne on Damages, sec. 102.</p> <p>The question as to the certified execution having been once ■•adjudicated, is not open for consideration.</p> <p>The evidence was properly admitted. State v. Bridgman, 49 Yt. 202; Thayer v. Thayer, 38 Yt. 163 ; State v. Guest, 6 S. E. Rep. 253 ; Funderburg v. State, 5 S. W. Rep. 244; State v. Briggs, 27 N. W. Rep. 358.</p> <p>The motion for a certificate was made as soon as it could be intelligently heard. The necessary facts were not before the ••court until the coming in of the report.</p>

<p>Exclusion of Witness. Exception to Argument. Evidence. Previous Attempt. Motive. Circumstantial dence. Conduct of Respondent. Alibi. Joinder of Counts. R. L. ss. 4127, 4128</p> <p>a. It is not legal error to appoint as prosecutor in a criminal proceeding an attorney who is acting as counsel in a civil suit against the respondent to recover damages for the acts on which the criminal action is based.</p> <p>■2. The statute permitting the peremptory challenge of jurors by the State in criminal cases is constitutional.</p> <p>3. The trial court ordered that the witnesses for the State should be examined separately. Held, that an attorney of the court, who had been present during the trial, but not engaged in it, might testify in rebuttal to a fact as to which he was the only witness.</p> <p>4. An exception to the language of counsel either in the opening statement or closing argument, must be taken at the time when such language is used, and an objection made for the first time after the statement or argument is finished, comes too late.*</p> <p>-5. No exception lies to the offer of the prosecuting attorney to prove certain facts, where such offer is made in good faith.</p> <p>•6. A witness may state his opinion derived from certain facts, when the facts themselves are incapable of exact and minute description; as in this case, that a horse appeared tired, that tracks appeared to have been made by a sleigh or an overshoe.</p> <p>U. Evidence of a previous unsuccessful attempt to commit the same crime for which the respondent is on trial is admissible.</p> <p>8. The evidence for the prosecution tended to show that the respondent had been criminally intimate with one Olivia Amsden, the foster child of Eoster, who owned the building for the burning of which the respondent was indicted, that this intimacy had been broken off by Olivia, and that the respondent was greatly enraged at this ; and it was claimed that the motive of the respondent in committing the crime was tobe revenged on Eoster for interfering with his relations with Olivia, and ■ to wound her by injuring her foster parent. Held, that with regard to this question of motive, (a) Eoster might testify to the relations existing between himself and Olivia; (b) that Olivia might state what Eoster had said to her about the respondent, which she afterwards communi•cated to him; (c) that any letters between Olivia and the respondent, tending to show their intimacy, that it was terminated against his will, and his threats towards her, were admissible.</p> <p>9. Respondent claimed, that Poster burned his own buildings for insurance-In view of this, Held, (a) that the conduct of Poster at the fire was-material; (S) also the value of the buildings, but not that of the land.</p> <p>10. A witness testified that he was at a certain house and beard a team pass-the night of the 29th of December, and that one Ryan was with him. Witness, on that and several nights, both before and after, was watching with a sick man at this house. Held, that he might be inquired of' whether this was the only night that he heard a team pass.</p> <p>11. The prosecution claimed that the respondent hired a team at St. Johns-bury, drove to the vicinity of Poster’s, some twenty miles, left his horse and fired the buildings; that just before leaving his hdrse he turned ' from the main road at a sharp angle. Held, permissible to show that the same horse, when started in that direction four days afterwards, followed, without guidance, the sam.e road, and made the same turn.</p> <p>12. ' Respondent claimed that on the night of the fire he was, at half past nine,. at Littleton, N. I-I. One Lynch testified that about six o’clock one evening he saw ai horse in respondent’s barn, and the wife of Lynch testified that one evening she saw respondent harnessing a horse about nine o’clock, and that later the horse was gone. Held, that they might fur- . ther state that these matters were afterwards spoken of between them, that night.</p> <p>13. Tracks were found near the fire, which the prosecution claimed were-made by an overshoe worn by the respondent. A witness having testified that the winter before he sold the respondent a pair, he may produce an overshoe in court which lie swears is of the same size, and it may go to the jury.</p> <p>14. Any articles used in connection with the commission of the crime or the previous attempt may be exhibited to the jury.</p> <p>15. A witness may swear to his impression of a fact, although he will not state positively that the fact is so.</p> <p>1G. Where a part of the testimony of a witness upon a former trial is put in evidence for the purpose of impeaching him, the whole of such testimony may be shown.</p> <p>17. It was not error for the court, in its charge, to say that there was no claim that the fire was an innocent one; that it was the wicked and malicious act of somebody; that' it was maliciously set; when the whole case had been tried upon this theory, and the jurors could not have inferred from the language of the court that they could convict without finding the body of the crime.</p> <p>18. It was no error for the court to say to the jury, in explaining the nature and weight of circumstantial evidence, that many great jurists had pronounced it “ of a nature equally satisfactory with positive evidence- • and less likely to proceed from perjury.” If the law laid down by the trial court is correct, it is in no wise material in whose language it is expressed.</p> <p>19. The fact that the respondent did not satisfactorily show where Ire was on either the night of .the fire or' that of the previous attempt, was. properly commented upon by the counsel for the prosecution.</p> <p>20. The respondent set up an alibi. The court instructed the jury that the-evidence to prove it must out-weigh the evidence to show the respondent at the place of the crime, and if so established they should acquit. It further instructed the jury that the alibi evidence was to be considered with all the other evidence in the case, and if upon the whole there was a reasonable doubt as to the respondent's guilt, he was entitled to an acquittal. Held, not contradictory and correct.</p> <p>21. If it is established beyond all question that a respondent has sought to-prove an alibi by false and fabricated evidence, that fact will be an admission of guilt, but not conclusive.</p> <p>22. There is no objection to joining in an indictment counts charging the-same act with different intents under E. L. s. 4128 and E. L. s. 4127.</p>

<p>This was an appeal by the plaintiff from the action of commissioners in disallowing liis claim against the estate of Lucius Robinson. The declaration contained the common counts and ^an account charging the estate on the ground that the said Lucius .Robinson was a partner in the firm of Foster & Baker, contract- ■ ors for the construction of the Missisquoi & Clyde Rivers railroad. Pleas, the general issue and statute of limitations. Trial by jury at the September Term, 1886, Ross, J., presiding. Yer-dict for the defendant. Exceptions by the plaintiff.</p> <p>The evidence of the plaintiff tended to show that Asa B. Foster, Luther Baker and the intestate Lucius Robinson were equal •partners in the firm of Foster & Baker; that this firm took the ■contract for and did-construct the Missisquoi & Clyde Rivers ■railroad, and that the account sued for by the plaintiff accrued ■-against the said firm in the construction of said railroad. The plaintiff did not claim that the intestate was liable except as a member of that firm.</p> <p>The principal witness to these facts, was the said Baker, who testified that it was agreed between them from the first that they were to take this contract as partners and share alike in the profits, but that inasmuch as Robinson was the president of the Missisquoi & Clyde Rivers Railroad • Company, with whom the ■contract was to be made, it was mutually agreed that it should be taken in the names of Foster & Baker and under that firm style; that the contract was so taken, and that under it the three-went on and constructed the road, and that the account of the plaintiff accrued in the course of such construction.</p> <p>It appeared that the Missisquoi & Clyde Rivers railroad was-' the Yermont portion of a continuous line running from Newport, Yt., to Montreal, P. Q., and that the said Poster owned or controlled the Canada part. The defendant claimed that whatever-might have been the original relations of these three persons, after a certain time Poster determined that they must be so adjusted that he should assume the construction of the Missisquoi road: and own it when Completed for use in connection with his-Canada road; and that an arrangement was made by which the previous partnership was dissolved, and Robinson and Baker both became the hired servants of Foster, Baker’s name being-still retained because certain moneys which were to be advanced by the Connecticut & Passumpsic Rivers Railroad Company could not be made available unless some responsible resident of' the United States was one of the contractors.</p> <p>As evidence of this, the defendant introduced two written memoranda, the execution of which at their respective dates was conceded, and which were as follows :</p> <p>“ We the undersigned, being mutually interested in the Missisquoi & Clyde Rivers Railroad, hereby agree that the -interests connected in and with said railroad shall be arranged and carried out as is hereinafter set forth and described. In order to insure the ■ speedy construction of said M. & C. Rivers Railroad, it shall be-mortgaged to the Connecticut & Passumpsic Rivers Railroad,.for-the sum of three hundred and fifty thousand dollars, or such sum ■ less as may be required to build said road. The said road shall be leased to the South Eastern Counties Junction Railroad of Canada. Said lease to be perpetual upon the condition of paying the interest on the three hundred and fifty thousand dollars,, as above, and such dividends on the stock subscribed and issued) as is paid upon the South Eastern Counties Railroad upon a j?rO‘ rata basis as .to the mile on each road. It is also agreed that the contract now made and existing for a certain portion ox-division of said Missisquoi & Clyde Rivers Railroad with Messrs. Col. A. B. Foster and L. Baker, shall be so modified, altered or amended as to extend to the village of Newport by way of North Troy village and Newport Center, at such prices as may be agreed upon, not to éxceed thirty thousand dollars per mile, in money, town bonds and stock all included.</p> <p>All stock transferred to Messrs. Foster & Baker on account and for the payment of constructing said road, or any part thereof, shall be transferred by Baker to Foster, or such person as he shall designate. The South Eastern Counties Railroad shall have the entire control of the Missisquoi and Clyde Rivers Railroad by perpetual lease, majority of stock and such directors as may be desired by said Col. A. B. Foster, and the same to be carried into effect so soon as the arrangement is completed with the Conn. & Bass. Rivers Railroad as to the mortgage and running of business arrangements, so-called, as to secure the three hundred and fifty thousand dollars for the building of the road. ■ It is also understood a,nd agreed that Luther Baker and Lucius Robinson shall be allowed and paid so much money as they have actually paid out for and on account of the said Missisquoi & Clyde Rivers Railroad. Said money may be paid out of the funds received from the Conn. & Bass. Rivers Railroad, from time to time, in such sum or sums as may be agreed upon by said Foster, Baker & Robinson, if not otherwise provided for.</p> <p>It is also agreed that there may be taken out of the cash received from said Conn. & Bass. Rivers Railroad, or town bonds, or stock, as each may elect, the sum of twelve thousand dollars each by said Foster, Baker & Robinson, at such time as may be agreed upon, in such sum or sums, from time to time, as they may mention hereafter, the same to be done within one year from date.</p> <p>Should there be a move to extend said railroad beyond Newport village or to Island Bond, or any other point, said Baker & Robinson shall together have the same interests in the construction for such extension, or the profits arising therefrom, as said Foster, or the South Eastern Counties Railroad or their successors may have.</p> <p>In regard to the mortgage and lease of said railroad, the said Baker & Robinson shall express no preference for first of record, only that it be done to secure the funds mentioned above, $350,-000. And it is further agreed that the said Baker & Robinson shall render such aid in the construction of said road in regard 'to their time and services as may be desired by said Foster, without further charge, except for cash paid out. In short, it is mutually understood and agreed that the said Baker & Robinson shall do whatever and all they can do reasonably for the cheap and quick construction of said railroad, and for the benefit generally, of the said Foster, and in his interest with the road and all its connections and workings of the same, both directly and indirectly, until such times as relieved by said Foster or those in his interests. To all of which we three persons named in the foregoing, hereunto pledge each to the other to carry out the above contract in good faith to the best of our ability. Subscribed to on the part of L. Robinson and L. Baker at Newport, this 26th- day of February, A. D. 1872, and on the part of A. B. Foster at Montreal the 28th day of February, A. D. 1872.-</p> <p>(Signed,) A\ B. Foster,</p> <p>L. Robinson,</p> <p>Luther Baker.”</p> <p>“ Referring to a memorandum signed by the undersigned, it is hereby agreed as the final understanding that Mr. Foster and Mr. Baker are to be jointly but not separately entitled to draw all the moneys, stocks and bonds falling due under any contract for the construction of the Missisquoi & Clyde Rivers Railway, and upon payment of the sums to Mr: Baker and Mr. Robinson respectively, which are mentioned in the said memorandum, Mr. Foster shall be free from any further demands or accounting in respect of such contract of construction in as far as regards Mr. Baker and Mr. Robinson.</p> <p>A. B. Foster,</p> <p>L. Robinson,</p> <p>Luther ’Baker.”</p> <p>March 2d, 1872.</p> <p>The court did not construe these written instruments but submitted them to the jury as follows:</p> <p>“ Well, gentlemen, you are to remember that this is a thing •of considerable length of standing. It is conceded by Mr. Prouty for the defendant (I do not know as Mr. Thompson said that) that if Mr. Baker’s testimony is to be believed, and full •credit to be given to it, and you find the truth to be as he testifies, then the plaintiff is entitled to recover. But they say on the part of the defense that, taking this contract of February, 1872, viewing it in all its bearings, remembering the relation which these parties all sustained to the road, and all the circumstances, it shows that Mr. Robinson was not to be responsible thereafter on any of the contracts, whatever might have been liis relations to it; that he was to have a stipulated sum, that he was not to appear in the contracts and was not to be liable. That is what the defense claim. ■</p> <p>You have heard the comments upon this contract. Yon will .have it before you. Mr. Crane has made his comments and gone over the contract in detail, where they start off by saying that they are mutually interested. It is for you to say what they meant by that; whether they meant that they were equally .and jointly interested, or whether they meant simply that Mr. Robinson had an interest in there because he had got some money in. He had a further interest as. a director and interested in the Passumpsic Road; he had an interest as the president and director in this road.</p> <p>It is pretty apparent, I think, taking the whole contract together, that he did not mean to say that after that contract they were going to' be equally interested. Because that contract, as I understand it, (and this is not controverted by either side) puts the liability upon Mr. Foster to pay all the bills as between these three parties to it, and gives him all the profits that may ■accrue from the contract over and above the twelve thousand ■dollars which is to be given to Mr. Baker and Mr. Robinson.”</p> <p>The entire account of the plaintiff accrued subsequently to • ihe execution of the above mentioned memoranda.</p> <p>The witness Baker testified that notwithstanding the execution of these written agreements, the three still continued parties-as before. In view of this claim, counsel for the defendant were permitted to inquire of him on cross-examination what he understood the' meaning of these memoranda to be and what effect, if any, they produced on the previous relations, between; Poster, Eobinson and himself.</p> <p>It appeared that there were other claims similar to the plaintiff’s, which had been compromised by the witness Baker. He testified that Eobinson was liable upon them all in the same-manner as upon this, and was financially responsible. In view of his testimony in this respect defendant’s counsel was allowed to interrogate him as follows upon cross-examination :</p> <p>>£ Question by Mr. Prouty.</p> <p>Q. Ho you remember ever having told me that Lucius Bo~ binson was not liable on these claims ?</p> <p>Judge Eoss — Suppose you state the time and place.</p> <p>Q. .Do you remember that I had for collection against Poster & Baker some three or four claims; one claim was in favor of Thomas Laraby, and another claim in favor of Adams, on which a judgment had been obtained against Poster & Baker by me ?</p> <p>A. I think you had such claims. I think I remember that.</p> <p>Q. How were these claims settled ? (Objected to.)</p> <p>Q. Were claims for supplies and materials furnished in the construction of the Missisquoi & Clyde Bivers road and for fencing done on the road %</p> <p>A. I think they were.</p> <p>Q. ■ How were those claims settled ?</p> <p>A. I think I made you three propositions and one of them, you accepted.</p> <p>Q. Which one was it I accepted ?</p> <p>A. I told you that they were, for aught I knew, that the-claims were all good claims, valid claims; I didn’t know why they wasn’t; and that I would give you my note for one hundred cents on the dollar, and see it was paid as soon as I could. (Eepeats.) I stated that I made three propositions, to take a. certain amount of money and settle it; I would give him a certain amount of money on each claim, or I would give him my note in full.</p> <p>Q. What per cent of these claims did you pay in settlement ?'</p> <p>A. I don’t remember.</p> <p>Q. Well, it was fifteen per cent. (Objected to. Exceptions-by plaintiff.)</p> <p>Q. Did I have conversation with you in regard to these-claims just previous to the time when the settlement waseffeeted ?</p> <p>A. I think you did.</p> <p>Q. . In the course of that conversation did I tell you that I had heard that Lucius Robinson was liable on these claims and-did I ask you whether that was' true or not ?</p> <p>A. I think you did, and I told you you was a lawyer and I was not, and yon knew what he had done and what he could do ; you-must fix it yourself.</p> <p>Q. Did you tell me that Lucius Robinson wasn’t any more liable than I was ?</p> <p>A. I don’t know as I did.”</p> <p>The plaintiff for the purpose of showing that Robinson was a silent partner was allowed to prove that Foster, Baker & Robinson had been sued as joint contractors and a judgment secured against them for a claim similar to the plaintiff’s. To rebut this the defendant proposed to show that, although Robinson was well known to be responsible, such claims against the firm of' Foster & Baker had been suffered to outlaw to large amounts,, and in this view introduced one John A. Prouty, who testified as follows :</p> <p>“ Q. Did you furnish lumber that went into the Missisquoi &■ Clyde Rivers R. R. ?</p> <p>A. I did.</p> <p>Q. To ydiat amount?</p> <p>A. It is impossible for me to tell the exact amount; quite a large amount.</p> <p>Q. Tell how much if you know.</p> <p>A. They made payments once or twice; I, can’t recollect those amounts. Later than .that they owed us in the neighborvhood of a thousand dollars.</p> <p>Q. Was that account ever paid ?</p> <p>-Objected to.</p> <p>A. Partially paid.</p> <p>Allowed. Exception by plaintiff.</p> <p>'Q. State whether a suit was brought on that claim.</p> <p>A. There was a suit brought.</p> <p>Q. Against whom % ■</p> <p>A. Against Baker & Foster, I think, and Mr. Baker’s property was attached.</p> <p>Q. How much of the debt was secured by that suit ?</p> <p>A. Not any of it.</p> <p>Q. How much of the debt was ever paid ?</p> <p>Objected to.</p> <p>Counsel proposes to show that five or six hundred dollars was -allowed to outlaw.</p> <p>Ruled out.”</p> <p>(no cross-examination.)</p> <p>The plaintiff’s claim was outlawed as to Robinson, unless the -effect of the statute had been in some way removed. The plain-tiff claimed that a payment had been made within the requisite time, by way of certain land and certain shares of the capital stock -of the Missisquoi & Clyde Rivers Railroad Company which had been conveyed to the plaintiff by said corporation and applied on this account. It appeared that both the stock and land came to the contractors as a part of the price for the construction of ■the road, and there was no evidence tending to show that Robinson- had any interest in either unless by virtue of the fact that, ns a member of the firm of Foster & Baker, he was one of such ■contractors; but the evidence did tend to show that he was anxious to have the conveyance made to the plaintiff, and the appli•cation made on this debt. Upon this branch of the case the •court charged:</p> <p>“ But this land stood in the railroad company, and Mr. Wilson was authorized to sell and convey it. It seems Mr. Robinson was desirous to have the application go upon this debt, for some reason, according to the testimony. Apparently that land being outside of what is necessary for the road bed, according? to the contract, (the company was to furnish the road bed, but. was not to furnish outside of it), apparently under the contract of 1872 that belonged to Mr. Foster, that is, really, in equity,, belonged to him. How it is paid for is not shown. Whether the company paid for it or whether somebody else paid for it. The stock that was passed over on that occasion was a subscription to the company. Between the contractors and the company this stock equitably belonged, and the avails of it, to the contractors, Mr. Baker and Mr. Foster. If Mr. Robinson was. really a contractor after that and interested in it as a contractor and interested in the profits to be derived from it (but I do not', say that he was, after that contract), then he would have been-interested in the stock. But after that contract of 1872, as I understand it, this stock, in equity, and the avails of it, belonged, as between these three parties, to Mr. Foster, and if he ordered it paid, and Mr. Robinson had done nothing about it,, it would be a payment by Mr. Foster rather than Mr. Robinson. But if Mr. Robinson took part in that and treated either the-land or the money that Mr. Foster furnished as his own, and directed it to be made as a payment in such a manner that Mr. Currier and those who had to do with the matter, as reasonably prudent persons, had a right to understand and did understand’ that it was a payment by him, why, that would be a renewal-. But if it was not his property and he was not interested in it, and he did not treat it in that way, it would not be a renewal although it was made in December, 1876.”</p> <p>• The plaintiff claimed another payment of $25, and introduced, testimony tending to show that Robinson had paid him that amount on this account in connection with the sale of certain notes by the plaintiff to Robinson. The witness Baker testified in reference to this claim of the plaintiff that on one occasion. die had a conversation with Rohinson, who then said to him that he had recently sold some notes to' the plaintiff and made him a ■payment on this railroad account. In reference to this testimony, having laid the proper foundation upon the examination •of the witness Baker, the defendant administrator, Geo. S. Robinson was permitted to testify as follows:</p> <p>“ Q. Did Luther Baker tell you that he (referring to Lucius IRobinson) was not a contractor? State what he said on that •subject.</p> <p>A. He stated to me that he was not one of the contractors.</p> <p>Q. Did Luther Baker understand that Currier claimed to recover of the estate because Lucius Robinson was a contractor ?</p> <p>A. He did.</p> <p>Q. "Whether anything was said in conversation, as to payment of $25, that Currier claimed had been made to him ?</p> <p>A. There was.</p> <p>Q. In that conversation with Mr. Baker or one of these conversations at the Memphremagog House, did you tell him John W. Cunier claimed that your brother Lucius had made a payment of $25' to renew the account, and did you aslt him if he .knew anything from Mr. Robinson as to that payment ?</p> <p>A. I did tell him so.</p> <p>■•Q. You asked him that question?</p> <p>A. I did.</p> <p>'Q. In answer to that question did he tell you that he did not 'know anything from Lucius Robinson ?</p> <p>A. He said that he did not know anything about it from Lucius Robinson, that he never heard him say anything about it, that all he knew about it was that he heard from J. W. Currier. He not only said it once, but said it on two or three different occasions.”</p> <p>Eor the purpose of impeaching the witness Baker, two witnesses were permitted to testify that he had told them previous to the trial and at about the time of the transaction that Robin•son was not a partner in the construction of this railroad. In the argument counsel for the defendant commented on this testimony as though it were evidence in chief to prove this fact-. ■Counsel for the plaintiff objected to this -line of argument, and the court interposed, whereupon the counsel who was arguing ■disclaimed any intention to be so understood, and proceeded in -a manner not objected to.</p> <p>It fairly appears from the exceptions that Robinson was a member of the firm of Foster & Baker in the taking of the contracts for the construction of this railroad, and there is no evi•dence in the.case tending to show that he had ceased to be such ■a. partner before the debt in suit was contracted, except the two memoranda of February and March, 1872. The effect of these memoranda is not to dissolve the partnership, but simply to secure Foster in the control of the Missisquoi & Clyde Rivers railroad when built.</p> <p>The court submitted the construction of these memoranda to the jury. This was error, inasmuch.as they should h^ive been ■construed by the court, and is error revisable by this court. Col-■lamer v. Langdon et al., 29 Yt. 32; Driggs v. Burton, 44 Yt. 124; Rowell v. Fuller, 59 Yt. 688; Chase v. Martin, 6 N. E. Reporter 837 (Me.); Mixers. Williams, 17 Yt. 457; Gove et al. v. Downer, 59 Yt. 139 ; Wason v. Rowe, 16 Yt. 525 ; Hammond v. Port Royal and Augusta R. Co., 15 S. 0.</p> <p>The same authorities show that it was error to allow counsel for the defendant to ask the witness Baker what he understood these writings to mean.</p> <p>The testimony of John A. Prouty was irrelevant and inadmissible.</p> <p>The charge of the court as to the effect of the application of the land and stock was wrong. It in effect said that these written memoranda transferred the title of the other partners to Foster.</p> <p>The exception to the argument of counsel was well taken. The fact that he did not intend to be so understood is of no consequence. Bullard v. Boston and Maine R. R., 2d N. E. Reporter, page 901, N. H.; Perldns v. Burley, 6 N. E. Reporter 817; Sterling v. Sterling, 41 Yt. 80; Woodv. Willard, 36 Yt. 82; State v. Header, 54 Yt. 126.</p> <p>1. The defendant was permitted to ask the witness Baker Misunderstanding of these memoranda, not for the purpose of obtaining a construction of the writings, but as legitimate matter of cross-examination in testing the accuracy and consistency of his testimony. In view of thé witness’, testimony it was a matter of legal right with the defendant; but had it not been, the-court might have permitted this line of inquiry as a matter of discretion. 1 Greenleaf on Evidence (12th, Ed.) ss. 446, 449 Johnson v. Jones, 1 Black (U. S.) 209.</p> <p>2. Neither party could possibly have been helped or injured-by the testimony of John A. Prouty. Its admission was not. therefore reversible error. Sampson v. Warner, 48 Yt. 257.</p> <p>3. 'Wemnderstand that the court did in effect construe these-written memoranda to the jury. But suppose it did not, there is-no error; for it is apparent that a proper construction of them could not have benefited the plaintiff. Danforth v. Evans, 16-Yt. 538 ; Castleton v. Langdon, 19 Yt. 210; Bouve v. Cottle,. 3 N. E. Rep. 388 ; 143 Mass. 310.</p> <p>The effect of these memoranda was to dissolve the partnership-previously existing. Prom and after their execution Robinson and Baker were in reality simply the hired servants of Foster.. The court below should at the trial, and this court ought now to-construe these written agreements and give judgment for the defendant. Morris v. Kelley, 13 Atlantic Reporter 523; Thompson et al. v. Roberts et al., 24 How. (U. S.) 233.</p> <p>The charge as to the effect of the application of the stock and' land as a payment to avoid the statute of limitations was as-favorable as the plaintiff could ask. Carlton c& Manning v.. Ludlow Woolen Mill, 27 Yt. 496; Carlton et al. v. LudlowWoolen Mill, 28 Yt. 504; Bailey v. Colvin, 51 Yt. 366 ; McConnell v. Merrill, 53 Yt. 149; Greene v. Morris, 58 Yt. 35.</p> <p>The exception to the argument of counsel should not be sustained. Whatever error there may have been was made in good faith. It is only when the right of argument is abused that an exception will lie. Sea v. Harrington^ 58 Yt. 190 ; Boyles. State, 105 Ind. 469; Shulah v. State, 105 Ind. 289.</p>

<p>Trover for tlie recovery of a water wheel. The ease was heard at. the June Term, 1887, Powers, J., presiding, upon the report of a referee. Judgment for the plaintiff. Exceptions by the •defendant.</p> <p>The referee found a demand' previous to the service of the writ by an officer of the First National Bank of St. Johnsbury, which then owned the note, and a refusal.</p> <p>As to the law of New Hampshire, the report was as follows f</p> <p>“ Evidence was introduced before me as to the law of New Hampshire bearing upon this case. 1 find the law of New Hampshire to be as laid down in the case of Cochran v. Flinty 57 N. H. 514. The statute law of New Hampshire was proven before me as found in its printed statutes, and the same is referred to and made a part of this report.”</p> <p>The written lien was actually executed in New Hampshire-</p> <p>The other facts sufficiently appear in the opinion.</p> <p>Since the trade was made in Vermont, the law of this State-* must govern. The verbal lien was of no validity as against am innocent purchaser. Having sold this water wheel to be used in' ■the mill, the plaintiff has assented to its being affixed to thereat ty. Davenport v. Shants, 43 Vt. 552 ; Bugbee v. Stevenséi.Bagley, 53 Vt. 389.</p> <p>Before the written lien was taken the Sawyer mortgage had' been- executed, and new rights had intervened. It was the-plaintiffs fault that the defendant had no notice of his lien, and he ought therefore to suffer. The lien was not valid by the laws of either Vermont or New Hampshire, and hence the plain- ' tiff had no right to the property as against a mortgagee. Savings Bank v. Exeter Machine Works, 127 Mass. 542; Hunt v.. Bay State Iron Co., 97 Mass. 279.</p> <p>To entitle the plaintiff to recover he must have either possession or the right of possession. In this case he had neither, for he had transferred his title to the bank, and the demand was made for the bank. Deering v. Austin, 34 Vt. 330; Burnelt v. Marvin, 44 Vt. 277..</p> <p>The deed fl*om Mrs. Burton being a quit-claim, the defendant-takes nothing more under it than she had. She never claimed; or supposed she had any title to this water wheel. Springer■ v. Bartle, 46 Iowa 688; WinJder v. Miller, 54 Iowa 476.</p> <p>In order to claim title under the Sawyer mortgage it must be shown that Sawyer had some equitable title to it. But he had none. The notes which his mortgage secured were given under an agreement to execute the mortgage when this water wheel was not a part of the property. He neither parted with his money nor did any other act on the strength of it. The recording of the lien was only material as affecting subsequent attaching creditors or innocent purchasers, and the defendant was neither. Davenport y. Shants et al., 43 Yt. 546.</p> <p>The law in New Hampshire is even more favorable to the plaintiff than that of Yermont. Cochran v. Flint, 57 N H. 514.</p> <p>This suit could not have been brought in the name of the bank. Datchelder v. Jenncss, 59 Yt. 105 ; Crane v. Paine, 4 Cushing 483; French v. Haskins, 9 Gray 195; Smithy. Atkins, 18 Yt. 461.</p>

This was a suit in chancery, and was heard at the September Term, 1886, Washington County, upon bill, answer, master’s report and exceptions of both parties thereto. Powers, Ohan•cellor, dismissed the bill with costs. The orator appeals.

<p>Trover for two buggy wagons. Plea, not guilty. Trial by jury at the December Term of the Caledonia County Court, 1887, Taft, J., presiding. ' Verdict for the plaintiff. Exceptions, by the defendant.</p> <p>The plaintiff claimed that the defendant had obtained possession pf the wagons through fraudulent representations as to his financial ability. The sale was effected through the plaintiff’s agent, Phillips, who took the written order of the defendant subject to the subsequent approval of the plaintiff. The evidence of the plaintiff tended to show that at the time of making the contract the defendant represented to Phillips that he owned his stable and stock substantially, and that Phillips so reported to the plaintiff, and that it relied' thereon in approving the contract .and delivering the wagons.</p> <p>The contract with the defendant was made March 10.</p> <p>It was approved and the goods shipped April 12.</p> <p>Pending the consideration of the order by the plaintiff, and on March 25, the defendant wrote the plaintiff a letter which contained this clause, “ I have got a little stable, and got it most paid for.” The parties had corresponded with refence to other matters, and the defendant objected to the introduction of this letter or clause on the ground that, it referred to those other transactions. The court admitted this clause and left it to the jury to say whether it referred to the matter in suit.</p> <p>The plaintiff was also permitted to show, against the defendant’s exception, that, at the time of the sale by Phillips and the making of the alleged representations by the defendant, the defendant was hopelessly insolvent, that his entire property was then covered by mortgages, one of which secured a fictitious debt to one Atwood for $850, that upon the receipt of the wagons he at once re-mortgaged his property, including those wagons, to secure, among other claims, the aforesaid note of $850, and another fraudulent note of $250.</p> <p>The defendant claimed that he had always been ready to pay for the buggies, when the plaintiff would allow a claim which he made about freight. Against the defendant’s exception the plaintiff’s counsel was permitted to ask him this question :</p> <p>“ Did I not tell you that you might take out your freights as you claimed them to be, reckoning interest on the balance, the freight on goods not to be included but just pay that’debt and interest and close the matter up ?”</p> <p>Answer. Yes, sir.</p> <p>The other exceptions sufficiently appear in the opinion.</p> <p>1. As to the letter of March 25, the whole letter should have gone to the jury. This was the readiest way in which the. jury could determine what it referred to. As it was left, the court virtually held that the clause admitted referred to the matter in dispute, and the effect of this holding could not be done away with by the charge. Dennis v. Barber et al., 6 Sarg. and R., 427; Boon v. Danville, 53 Yt. 183.</p> <p>2. The letter press copy was improperly admitted. Delaney v. Erickson, 10 Neb. 492; Smith v. Easton, 54 Md. 138 ; Dennis v. Barber, 6 Sarg. & R. (Pa.) 420-5-6 ; Lewis v. 'Harris, 40 Conn.-361; 1 Phillips Ev. 413, ante 121, Camp’s and Hill’s notes; State v. Hopkins, 56 Yt.; State v. Horn, 43 Yt. 20; Robertson v. Lynch, 18 Johns, (N. Y.) 451-7; Smith et ais. v. Carrington et als., 4 Cranch, (U. S.) 61; 4 McLean, 378; Foster yr. Deeper et al., 29 Ga. 294; McCully v. Barr, 17 Sarg. & R. (Pa.) 445.</p> <p>Evidence of prior or subsequent mortgages on the property of the defendant should not have been admitted. It had no tendency to support any issue made by the plaintiff. Morris v. Talcott, 96 N. Y. 100; Artman v. Bell, 9 Phil., (Penn.) 237; Hard v. Brown, 18 Yt.'87; Richardson v. Hitchcock, 28 Yt. 757; Rowley v. Bigelow, 12 Pick. 307; Edwards v. Warner, 35 Conn. 517; Fisher v. Brown, 1 Tyler 387.</p> <p>4. It was error to allow the plaintiff’s counsel to inquire of the defendant in regard to an interview betwben them as to a compromise. It has been uniformly held that offers of compromise are not admissible. Bennett v. Beam, 42 Mich. 346 ; Doon v. Ravey, 49 Yt. 293; Enowles v. Crampton, 11 At. Rep. 593; Stephen’s Dig. of Ev., 72 and notes; Clapp v. Loster 34 Yt. 580; Daniels v. Woonsocket, 11 R. I. 4; Strong v. Stewart, 9 Heist, (Term.) 137; 1st Oreen, on Ev., s. 192; Jewett v. Frink, 42 Wis. 446.</p> <p>5. The plaintiff had no right to ask Phillips what he would have done under certain specified circumstances. Palmer v. Pinkham, 33 Me., 32; 39 Me. 428; 32 Me. 521; 18 Barb. -337; 39 Mo. 468; 52 Yt. 353.</p> <p>1. As to the letter of March 25th, the-defendant might have ¡had.the whole letter before the jury, and- would-have had, had he not himself objected to it.</p> <p>2. It was permissible to show that the property of the defendant was- encumbered^ when he made the contract, for -the purpose of showing that his statements were false; and that he -afterwards encumbered it together with those same wagons, to show that he never intended to pay.for-them. -49 Yt. 355; 58 Yt. 315.</p> <p>3. The letter press copy was properly admitted. The evidence in relation to it tended to establish these three things.</p> <p>1. That a letter, of which this was a copy, was actually written by the plaintiff.</p> <p>2. That the letter was sent to the defendant.</p> <p>3. That it was received by the defendant.</p>

This was a petition for mandamus. The defendant made answer, and the case was heard upon the petition, answer, and agreed statement of facts. The points in issue appear in the opinion. The defendant having established itself in general business in the State has become a public servant. As such it cannot discriminate between different classes of business, or between different persons in the same class. Baltimore And the Am.

<p> Executor must present Ms private account to Commissioners. When chargeable with interest. </p> <p>1. An executor or administrator must present his personal claims against the estate which he represents to the commissioners on that estate or they will be barred like those of any other creditor. He cannot present them for allowance in his administration account, as'suggested by Judge Isaac E. Redfield in his note to French v. Windsor, 24 Yt. 402.</p> <p>2. An executor or administrator is chargeable with interest on the funds of the estate in his hands, although he receives none, when he unreasonably and unnecessarily detains them.</p> <p>3. In this case the executor kept the funds of the estate, to the amount of over $700, idle for several years, although there were banks of deposit easily accessible ia which he could have deposited it at the rate of four ■ per cent. The commissioner charged him with this rate, which he might have received. Held, nothing appearing in the report to the contrary, that he should be so charged, the conclusion of the commissioner being binding on the court.</p>

This was an action on the case for negligence. Plea, the general issue, trial by jury. Yerdict for the defendant. The plaintiff’s testimony tended to show that, on the 20th day of February, 1883, he was with his team on a public highway in the town of Shaf tsbury, and that his team then became unmanageable and escaped from his control, running to a considerable distance on the highway.

<p> Chancery. Parol License. Amendment. </p> <p>■1. When one has expended large sums upon the strength of a parol license to flow lands, that license becomes, in equity, irrevocable.</p> <p>■2. In February, 1879, defendant told orator that if he would build a mill and dam on a certain site, he would permit orator to flow so much of his, defendant’s, land as might be necessary to the operation of the mill. Orator notified defendant that he would accept this proposition, and in reliance thereon bought the site and began the erection of his mill. In August, 1879, having completed his mill, the orator was about to commence his dam, when defendant insisted that orator should not flow his land without compensation. Thereupon it was agreed that orator might erect and maintain a dam five feet high, and that the orator should pay the defendant whatever sum as damages three arbitrators might award. In making this agreement the orator waived no previous rights. TJpon the strength of this second agreement the orator completed his dam, and began to operate the mill. The arbitrators were called out, but the defendant refused to allow them to award damages, and insisted that orator should not flow his land. Thereupon an agreement was made, June 11, 1880, by which the orator agreed to pay the defendant $25 for the privilege of flowing his land from May 15, 1880, to May 15,1881. All the previous negotiations between the parties had been by parol, but this agreement was in writing. Orator made it as a result of his necessities, and under protest, and the master found it was intended as a temporary arrangement. Held, that the agreements of-February and August taken together amounted to a license . to the orator to flow the land of the defendant to the extent of maintaining a dam five feet high, upon the payment of a reasonable compensation, and that the defendant could not revoke this. license, although in parol, after the orator had expended large sums of money upon the strength of it.</p> <p>■3. If the first verbal agreement in February was too indefinite to permit a specific performance, this defect was cured by the subsequent agreement in August.</p> <p>4. The previous verbal agreements were not merged in the written' agree- . ment of June 11, 1880. <</p> <p>5. The bill alleged that the orator expended his money relying on the agreement of the defendant. This is tantamount to, and renders unnecessary the allegation that he accepted the proposition of the defendant.</p> <p>6. The bill alleged that the orator was to have the right of flowage to such extent as might be necessary to the operation of the mill. The master found that he was to have the .right to maintain a dam five feet high. Reid, that the orator could not prevail upon his bill as then framed,, inasmuch as the proof did not support its allegations, but that he should be permitted to amend upon terms.</p>

<p>This was an action of trespass to the freehold. Plea, the general issue. Trial by court at the December Term, 1887, ■Orange County, Ross, J., presiding.</p> <p>The trespass complained of was the cutting and carrying away ■of certain willows and bushes. The court found that the locus in question was a part of the original mill pond, which by gradual accretions had become dry land and lay contiguous to the plaintiff’s land. No minute of the deeds under which the -parties claimed title was furnished the reporter, but the questions ■raised upon them are sufficiently stated in the opipion.</p> <p>The court assessed the damages at five dollars, and gave judgment for the plaintiff in that sum with costs. The defendant excepts.</p> <p>The effect of the deeds from the defendant’s grantors was to -reserve all the land covered by the millpond. Hatch v. Dwight, 17 Mass. 289, 298; Jackson v. Varmlyea, 6 Cow. 677 ; Ang. Wat., ss. 869, 368; Pattee v. Hawes, 13 Pick. 323 ; Hockley v. Sprague, 17 Me. 281; Butler v. liase, 63 Me. 447 and cases there cited; Dunklee v. Wilton H. H. Go., 24 N. H. 439.</p> <p>When the description in a deed shows that the premises conveyed are to stop at the water’s edge, that will be the boundary. 3 Kent 427.</p> <p>In these deeds the boundary is the bank,*which is the same-thing.</p> <p>If the defendant had the right to flow this land he might enter-upon it, to clear it out and remove obstructions. Ang. Wat., ss. 157, 158 ; Farley v. Waters, 7 Barr, 221.</p> <p>In a case like this the accretions do not belong to the adjacent land owner. It is not like alluvion. Eddy v. St. Mars, 53 Yt. 462.</p> <p>Gradual accretions which become annexed to the land of the-riparian owner belong to him. Mayor of New Orleans v. United States, 10 Pet. 717 ; Gould Wat. ss. 148, 155 and cases cited; Ang. Wat. 53, 59; Newton v. Eddy, 23 Yt. 319; 3 Wash. Real Prop., pp. 60-66 ; St. Clair v. Lovingston, 23-Wall. 46 ; Wellees v. Bailey, 4 N. E. Rep. 842 ; Rex v. Tar-borough, 3 B. & C. 91; Adams v. Frothingham, 3 Mass. 362; Woodbury v. Short, 17 Yt. 387.</p> <p>The -plaintiff’s. land is bounded by the mill pond, and that continues to be the boundary, although its location may gradually change. Newton v. Eddy, supra ; Dunlap v. Stetson, 4 Mason, 349 ; Sorutton v. Brown, 4 B. & C. 485.</p>

This was an action of general assumpsit, heard before the Municipal Court for the village of Rutland, September 3, 1888, Lawrence, J. Plea, the general issue, and trial by the court. The plaintiff sought to recover the amount of a promissory note, executed and made payable in the State of New York. The parties were all residents of the State of New York, except the trustee. The “writ was served on the trustee July 27th.

<p> Covenant of Seisin. Covenant of Warranty. Deed, Description in. </p> <p>1. The covenant of seizin, if broken at all, is broken at the time of the conveyance, and the covenantee may sue upon it, although before the bringing of the suit he has parted with his title to the land.</p> <p>2. The covenant of warranty is not broken until eviction. A covenanteemay sue upon that covenant, who has parted with his title to the premises before beginning suit, provided there was a breach of the covenant before his own conveyance, or provided that he had conveyed with similar covenants on his own part, and had made compensation before the commencement of the suit.</p> <p>3. Such effect will be given to the description in a deed as will carry outthe intention of the grantor, if lawful; but that intention cannot rest in mental purpose alone. It must be gathered from the language of the instrument itself.</p> <p>4. Defendant bounded the premises on the south by the land of Quinn, and referred to a report of Randall to its former cashier for greater certainty of description, which report was passed over to the plaintiff with the deed. At the time this report was made the south line was in controversy between defendant and Quinn. The conclusion of the report was that the south line of the defendant was two inches south of the south face of the defendant’s- south wall, and that if Quinn should pay the defendant for the land between its south line and the-center line of the south wall of its bank building, it should pay for a. strip eight inches wide. This report was made Nov. 22,1878. July 29th, 1879, Quinn paid the defendant for this eight inch strip, and the defendant deeded it to him. The deed to the plaintiff was executed Dec. 30, 1885. Held, that the reference in the description to the report of Rowell fixed the south line as it was when that report was made, and accordingly embraced the eight inches which the defendant had subsequently conveyed to Quinn.</p> <p>5. A precise description cannot be limited by general words of intent, nor will such language restrict the grantor’s covenants to his title and interest, when the land itself is the subject matter of conveyance.</p>

<p> Equity ; will Correct Mistake in Awarding Land Damages. </p> <p>E. owned jointly with, the other defendants certain land, of which he was in apparent possession, and which he had authority to manage in all ordinary matters without consulting the others, h ut not to sell. The selectmen of the orator laid a highway across the same, and E. appeared before them as the owner with reference to damages. The selectmen, supposing him to he the sole owner, awarded to him alone full damages. Held, that a court of equity should decree that the mistake of the selectmen he corrected, and said award paid to the several owners in proportion to their respective interests.</p>

This was an action in assumpsit to recover certain assessments on a premium note, given by the defendants to the plaintiff upon the issuing to them by it of a policy of insurance. The-motion on which the exceptions arose was heard at the September-Term of the Rutland County Court, 1888, Royce, Ch. J., presiding. The plaintiff excepted and the nature of the question raised appears in the opinion.

<p>■3. So, where upon a motion to dismiss, certain facts, not apparent .upon the record, were found and considered by the County Court, this court will presume that they came into the case by agreement, as they might, it not appearing to the contrary, and will not reverse the case for that reason.</p> <p>This was an action in general assumpsit. The writ issued as a ■capias, the plaintiff having filed an affidavit that the defendant was about to remove from the State, and was served by arresting the said defendant. The defendant, by his attorney, filed two motions ; ■first, that the service of the writ be quashed as 'far as the same related to the arrest of the defendant, and that the defendant be discharged from imprisonment; second that the service of the writ be quashed, “ for that the same was obtained by fraud of the plaintiff in this action, as appears by .the evidence, files and records pertaining to said action, hereby referred to, and that said action be dismissed.”</p> <p>The court, September Term, 1888, Royce, Ch. J., presiding, ■sustained both motions, discharged the defendant from arrest, •and dismissed the action with costs, to which .the .plaintiff excepted.</p> <p>The court found, as a matter of fact, “ that the defendant was a resident of Newark, in the State of New Jersey; that the plaintiff by false and fraudulent representations by him made to the defendant for the purpose of obtaining service of this process on the defendant in this State, induced the defendant to come and .be within the State, 'and thereupon did cause the writ in this cause to be served upon the defendant as by the officer’s return thereon appears.”</p> <p>The cases cited to show that an agreed statement of facts may render unnecessary a formal plea and joinder of issue are inapplicable. There was no pretence of making an agreed case. The-plaintiff excepted to all the action of the court in dismissing the= suit.</p> <p>The court obtained no jurisdiction by the service procured through the fraud of the plaintiff. Cooley on Torts, 190 ; Mat-calf y. Glarh, 41 Barb. 42.</p> <p>' The exceptions do not show that any exception was taken to-the action of the County Court in admitting the evidence on which the facts were found, or in finding such facts. The presumption is in favor of the regularity of the proceedings below. Sleeper v. Est. of Gould, 53 Yt. Ill; State v. Int. Liquor, 44-Yt. 216.</p>

The defendant caused this tax to be collected through the town ■treasurer. At the date in question a highway tax could not be collected in that manner. R. L. s. 382. It was the duty of the plaintiff to collect them, and he is therefore entitled to the compensation attached to such collection. Joslyn v. Tracy, 19 Vt. 569.

<p> Chattel Mortgage. Power of Sale. After Acquired Property. Insolvency. </p> <p>a. A chattel mortgage is not rendered void by the fact that the mortgagee consents, by the terms of the mortgage or otherwise, that the mortgagor , may sell the mortgaged property, from time to time, at least where it is stipulated that the property so sold shall be replaced by other of similar kind and value.</p> <p>'2. Where the mortgage provides that the property so substituted shall be sub j ect to the terms of the mortgage, and the mortgagee takes possession of it, with the consent of the mortgagor, it is thereby brought under the operation of the mortgage as of tjie date of the mortgage.</p> <p>-3. H. bought a stock of goods of the defendant and mortgaged them to him to secure the purchase money. The mortgage provided that, as such goods were sold they should be replaced with others of like kind, and of sufficient value to keep the security of the defendant good. December 1 defendant took possession of the entire stock underthe mortgage. At that time H. was insolvent, but defendant did notknow it. December 3 proceedings in insolvency were begun against H., under which plaintiff was appointed assignee. At the time defendant, took possession, about one-third of the goods were of the original stock. Held, that the defendant could hold, as against the plaintiff, both the goods originally mortgaged to him, and those substituted by H. for the goods sold, the mortgage having been executed more than five months before the commencement of the insolvency proceedings.</p>

<p> Lease. Pleadings in Case of Reference. </p> <p>1. Plaintiff leased Ms farm to defendant by written indenture to carry on upon shares. Nothing was said in the lease as to the hay then on the premises. By an independent agreement two persons were to examine this hay at the beginning of the term and again at the end, and appraise the difference in value. This was done, and the appraisers determined that there was $68 worth of hay less at the end than at the beginning. Held, that the determination of these appraisers was conclusive on the parties, and that the plaintiff could recover one-half the» difference in an action of assumpsit.</p> <p>2. Where the action was general assumpsit, and the defendant pleaded in offset, but the plaintiff did not reply in offset, and the case was referred, held, that the referee had no right to consider matters which could only have been shown by the plaintiff under such declaration in offset, and that the County Court could not embrace such matters in its judgment on the referee’s report. In rendering judgment on the report of a referee only those matters can be considered as pleaded, which could be introduced by way of amendment to those pleadings actually filed, or treated as filed.</p>

<p>This was an action of trespass on the case for the alleged negligenc® of the defendant resulting in the death of the plaintiff’s intestate. Plea, not guilty. The case was referred, and was heard at the March Term, 1888, Tyler, J., presiding, on the report of the referee and an agreed statement of facts. Judgment for the plaintiff, and exceptions by the defendant. The •questions raised by the exceptions sufficiently appear in the opinion.</p> <p>There is an implied obligation on the part of the village to •construct its aqueducts and water boxes in a reasonable and prudent manner, and to keep the same in repair. Willard v. Newbury, 22 Vt. 458. But this does not change the obligation •on the part of the town to keep its highways in this highway-district in repair.</p> <p>After complying with this obligation as to construction and repair the village owes no further duty to the public. If any further obligation exists it is to the town and not to individuals. “ There is in law no necessary privity between the traveler and any one but the town.” Newbury v. O. <& P. P. P. Go., 25 Yt. 377; Batty v. Duxbury, 24 Yt. 163.</p> <p>The village is not liable for defects in its highways. Parker v. Rutland, 56 Yt. 223.</p> <p>The accident resulted from the neglect of the town to keep the surface of the highway in sufficient repair.</p> <p>If the water box had been wrongfully placed or had been suffered to become insufficient and out of repair, the village might be liable; but here the water box as a Avater box was in all respects sufficient. , It was only because of a change in the grade in the street that the accident occurred, and -this the village had no power to control. Dillon, s. 721, note 2. Ill. Gen. R. R. Co. v. Bloomington, 76 Ill. 447.</p> <p>The referee finds that this water box was not at the.time of the 'accident in proper repair, and that it was negligence on the part of the water commissioners, and therefore on the part of the village, to have left it in this condition. Since the accident was, caused solely by the neglect of the village, it ought to be held responsible for it. Winn v. Village of Rutland, 52 Vt. 481; Welsh v. Village of Rutland, 56 Vt. 228.</p>

<p>This was a bill in chancery brought against John M. Aldrich and Lucretia Aldrich, his wife, to enjoin them from obstructing-a right of way of the orator across the defendants’ lands. The defendants hied several answers, which the orator traversed. The case was heard at the September Term, 1887, upon pleadings' and master’s report .before Rowell, Chancellor, who dismissed the bill pro forma.</p> <p>The facts appear in the opinion.</p> <p>The question of jurisdiction by reason of the amount involved' cannot be raised upon the master’s report after a full hearing upon the merits. Such objection should have been made and insisted on by plea or motion in the court below. Washburn v Washburn, 23 Yt. 576 ; Washburn v. Dewey, 17 Yt. 92 ; Smith v. Poole, 59 Yt. 232.</p> <p>The bill should be dismissed for want of jurisdiction. This is •a ease where the court had no jurisdiction, and where nothing which the parties could do or omit to do could confer it. The •court should dismiss the bill sua sponte. Pom. Eq. Jar., s. 130.</p>

<p>Rutland County Court, March Term, 1888, Tyler, J., presiding.</p> <p>This was an information in two counts. The first count alleged ^that the respondent “ did take and catch from the waters of this State, to wit: from the waters of Lake Bomoseen,, situate, etc., seven pond-pickerel.”</p> <p>The second count charged the respondent with having in his possession seven pond-pickerel caught in the waters of the same lake. To this information the respondent demurred. The-demurrer was overruled by the court, and the responden t excepted.</p> <p>Nos. 73 and 245 are in pari materia and should be construed together. Hence, it was not unlawful to fish with hook and line-in Lake Bomoseen, and it should-have been averred that these-fish were not taken in this manner. State (Neb.) v. Babcock, 33 N. W. 247; State v. Bay, 3 Yt. 138 ; State v. Nort/ifleld,. 13 Yt. 565.</p>

<p>Railroad Companies. Employe. Negligence. R. L. ss. 3418,3419. No. 34 Acts of 1872.</p> <p>'1. A servant who, having notice of a defective appliance, voluntarily continues in the employment, thereby ordinarily assumes the increased danger as an incident of the service.</p> <p>• 2. Plaintiffs intestate was killed by being knocked from the top of a coal car by the arch of a bridge on the defendant’s railroad. Plaintiff claimed that the bridge was improperly constructed in that it was too low. The intestate had served on the defendant’s railroad as a brakeman for seven months, and passed daily through this bridge. Held, that an instruction that if the intestate knew of the defective condition of bridge he could not recover, was correct.</p> <p>. 3. The bridge having been built in 1862, the question is not affected by R. L., ss. 3418, 3419, or No. 34, Acts of 1872. And, quere, whether it could have been had the bridge been constructed since 1872.</p>

<p>This was an action of debt on judgment, and was heard at the September Term 1888, Taft, J., presiding, on the demurrer of the plaintiff to the second and third pleas of the defendant. The issues presented by the demurrer appear in the opinion. The demurrer was sustained, and the defendant excepted.</p> <p>The provision that commissioners shall allow six months for the prosecution of claims is mandatory. They must proceed according to the statute creating their board, or their acts are invalid. Walters v. Stockvcell, 9 Yt. 9; Lowreyv. Stevens, & Yt. 116; Barrett v. Crane, 16 Yt. 216; Bond v. Wilder, 16 Yt. 393; PTendrick v. Cleveland, 2 Yt. 329; Lessee of Grignon v. Astor, 2 How. 319 ; Probate Court v. Winch, 57 Yt. 282.</p> <p>The Probate Court had no authority to accept the report at the time. It was a court of limited jurisdiction, and having departed, from the prescribed limits it had no jurisdiction. Peters ■v. Peters, 8 Cush. 529 ; Marshalsea Case, 10 Coke, 76 ; 2 Cal. 173 ; Emerson v. Reading, 14 Yt. 279 ; Lowrey v. Stevens, ’•6 Yt. 121; Adams v. Whitcomb, 46 Yt. 714; Aiken v. Richardson, 15 Yt. 500.</p> <p>The commissioners had full jurisdiction of the claims. The ■fact that they returned their report before the expiration of the ■.six months does not affect that jurisdiction, nor the jurisdiction ■of the Probate Court to accept the report. If the defendant •was deprived of his right of appeal, he has his remedy under the •statute. Hodges' Ex. v. Thatcher et al., 23 Yt. 455 ; R. L. s. 3194.</p> <p>The judgments cannot be attacked collaterally. Sparhawk «et al. v. Buell et al., 9 Yt.41; Lawrence v. Englesby, 24 Yt. 42.</p>

<p> Assumpsit. Implied Promise. Consideration. </p> <p>1. The defendant delivered certain logs on the pond near the plaintiffs’ mill to he sawed. The logs became scattered, of which fact the plaintiffs notified the defendant, who paid no attention to it. Thereupon the plaintiffs proceeded to gather the logs and saw them. Defendant paid for sawing but refused to pay for the extra labor of collecting them. Held, that he was liable to the plaintiffs for such extra expense.</p> <p>2. The plaintiffs sawed and piled'in their yard a quantity of lumber for the defendant under the arrangement that it might remain there a reasonable time. After it had remained there a year the plaintiffs notified the defendant that he must remove it, as they required the room. Held, that, the defendant haying failed to remove his lumber, the plaintiffs had no right to charge him with the expense of procuring other storage • ground and moving their own lumber to it.</p> <p>3. The parties were at variance as to what rule should be used in measuring the logs sold the plaintiffs by the defendant, and they theréupon agreed to use the same rule then being used by a third party. Held, that such agreement was on good consideration and binding.</p>

This was an action of replevin under E. L., s. 1230, brought 'to replevy one single wagon, and the undivided half of one bull ¿and eight heifers, taken by the defendant as deputy sheriff on ¡two executions against one Flood. It appeared that during the ■summer of 1885 Flood had desired to purchase the wagon in -question, and had applied to the plaintiff to sign a note with him as surety for the purchase money.

<p>The questions here decided arose upon four petitions of foreclosure brought by the Receiver of the First National Bank of St. Albans against Edward A. Sowles. The first three of said petitions were for the foreclosure of mortgages of real estate; the fourth for the foreclosure of five leases given to the said Howies and by him conditionally assigned to the petitioner.</p> <p>The condition of all the mortgages was the same and was as follows:</p> <p>' “ The said Sowles shall well and truly pay, or cause to be paid unto the said First National Bank of St. Albans and its successors or assigns, one certain note in writing bearing'date January 14th, 1884, for five thousand dollars,'payable six months after ■date to E. A. Sowles or order, at the First National Bank of St. Albans, with interest, and signed by B. C. Hall, and endorsed ■demand and notice waived, E. A. Sowles; also shall pay or cause to be paid all sums now due or that may hereafter bo due to depositors and creditors of said bank.”</p> <p>And was fully set out in all the petitions.</p> <p>The defendant demurred to the several petitions, for that the •depositors and creditors *of said bank were necessary parties. Thereupon, and pending the demurrer, the petitioner moved to •strike out the words “ also to pay or cause to be paid all sums then due, or that might become due thereafter to depositors and •creditors of said bank.”</p> <p>One of the leases was given to “Edward A. Sowles, executor,” •and was assigned by him as executor to the bank. The defendant claimed that this could not be matter of foreclosure against Tim as an individual.</p> <p>The defendant also moved to dismiss for want of jurisdiction in that, the petitioner, being a national bank in process of liquidation, the federal courts had exclusive jurisdiction.</p> <p>Powers, Chancellor, at the September Term, 1887, allowed the amendment, overruled the demurrer and. motion to dismiss, and gave a decree for the petitioner, from which the defendant -appealed.</p> <p>The amendment was properly allowed pending the demurrer. .Aid, Eq. PI. & Pr., 129; Smith v. Babcock, 3 Sumner, 583’; •Gunningham v. Pell, & Paige, 655 ; Rules of the Court of Chancery of Yermont, Nos. 11 and 43.</p> <p>This is not one of the cases in which the statutes of the United .States give exclusive jurisdiction to the federal courts, hence this •court may take jurisdiction. R. S. U. S. ss. 711, 5237; and s. ' «629 ; see proviso 4th sec. Act of July 12,1882, and s. 4, Act of March 3, 1887; Gadle v. Tracy, 11th Blatchf. 101; Kennedy v. Gibson, 8 Wall. 498.</p> <p>This court lias no jurisdiction. R. S. U. S. 629, cl. 3, 368, ch. 3 ; Stanton v. Wilkinson, 8 Fed. 33 ; Kennedy v. Gibbon, 8.Wall. 19; St. Eq. PL, 47.</p>

<p>This was a petition for divorce on the ground of wilful refusal to support, and was heard at the April Term, 1888, Yeazey, J., presiding. The court refused to grant the prayer of the petition, to which the petitioner excepted. The facts appear in the opinion.</p> <p>Farrington <& Rost, for the petitioner, argued that the act of 1886, having been passed immediately after the promulgation of the opinion of the court in Farnsworth v. Farnsworth, 58 Yt. 555, was manifestly intended to put a diiferentcon struction upon the statute from the one put upon it by the court in that case.</p>

<p> National Banks. No Service against by Attachment. </p> <p>I. Under U. S. Bev. St. s. 5242, the property of a national bank cannot be attached before final judgment; the trusteeing a debt due such a bank is in effect the attachment of the property of the bank;'hence where the only service on a non-resident bank was by leaving a copy in the hands of the trustee, such service is void, and the court obtains no jurisdiction.</p> <p>:2. Quere, whether service under B. L. s. 1081 would be good, where'the officer’s return shows that service was made on the non-resident defendant by leaving a copy with the trustee, without stating that such copy was “ for said principal debtor.”</p>

<p>Assumpsit for money bad and received. Flea, the general issue. Trial by court at the April Term, 1888, Yeazey, J., presiding. Judgment for the defendant. Exceptions by the plaintiff. The case appears in the opinion.</p> <p>This was a wagering contract, and illegal. Seward v. Garlin, 33 Yt. 583; Cobb v. Preel, 15 Eed. Rep. 774; Mutual ins. Co. v. Watson, Admx., 30 Fed. Rep. 653; Bryant-¶. Western Union Telg. Co., 17 Fed. Rep. 825.</p> <p>The money being in transit can be recovered from the bank. Tarleton v. Baker, 18 Yt. 9 ; 18 Rep. 86; Morgan v. Beaumont, 121 Mass. 7, and cases cited; White v. Franklin Bank, 22 Pick. 181.</p> <p>The bank in no way stands affected by the nature of the transactions between the plaintiff and the stock exchange, since it did not know what the nature of those transactions was.</p> <p>If the transaction between the plaintiff and the exchange was a legal one, clearly the defendant is not liable. The rule seems to be that a contract for future delivery is valid unless both parties intend that there shall be no delivery. North v. Phillips, 89 Pa. 256 ; Clay v. Allen, 63 Miss. 426.</p> <p>If upon the contrary the transaction was an illegal one the plaintiff is even worse off. The bank stood for the exchange, and a payment to it was in effect a payment to the exchange. The plaintiff has bet and lost, and the stakes have gone into the hands of the winning party, and they cannot be recovered by the loser. Gollamer v. Day, 2 Yt. 144; Tarleton v. Baker, 18 Yt. 9; West v. Holmes, 26 Yt. 530; Danforth v. Evans, 16 Vt. 538 ; Nellis v. Glark, 20 Wend. 24.</p> <p>The case does not fall within the provisions of R. L. s. 4310, as that only applies to money lost at' some game of skill or chance. West v. Holmes, supra.</p>

<p> Railroad Company. Common Carrier. Stock Ticket. </p> <p>1. A railroad company may prescribe the train upon which a ticket, issuecF for a special consideration, shall be good.</p> <p>2. Plaintiff received a stock ticket from a connecting road between two» points, issued to him in consideration of shipping certain stock between those points. Upon the back were certain printed conditions,'.which, the plaintiff signed, specifying that the ticket was good only upon the-freight train upon which his stock was transported. Held, that such, ticket was not good upon a passenger train.</p> <p>3. The fact that similar tickets have been previously received by defendant for passage upon its passenger trains does not alterthe case.</p>

<p> Jury. Statute of Limitations. Demand. </p> <p>1. Where there is any evidence tending to support the claim of the plaintiff, he may go to the jury, even though that evidence is contradictory.</p> <p>2. Where a debt, whether created by the deposit of money or otherwise, is payable on demand, a demand will not be presumed within six years, if the terms of the contract or the circumstances of the transaction are such as to indicate that the parties contemplated delay in the making of such demand.</p> <p>3. Plaintiff testified that in 1883 he enlisted for defendant town and that he left both his government and town bounty with defendant until he should return from the war and call for it, upon the representation of one of the selectmen that the town would pay him interest. This suit was begun in 1887. Reid, that the plaintiff was entitled to go to the jury.</p>

<p>This was an action in assumpsit. By the terms of the writ the defendant was attached “to answer unto Mary J. Wright of" New Haven, and Edward Wright, husband of the said Mary J. Wright.” The original declaration having been adjudged insufficient on demurrer, the' plaintiffs filed a new count as, follows:</p> <p>, “ And now come the plaintiffs in said cause, and for a new declaration therein declare against the defendant in a plea of the» ease, for that the defendant at Waltham, in said county of Addison, on the 15th day of April, 1881, did make, execute and. deliver to the plaintiff, Mary J. Wright, a promissory note, th& date whereof is the day and year last aforesaid, and therein promised the plaintiff, Mary J. Wright, to pay to her, one day after date thereof, for value received, the sum of two hundred and eighty-three dollars and sixty cents, with interest. Whereupon the defendant became then and there liable to pay to the plaintiff, Mary J. Wright, the aforesaid sum of money in said note specified, according to the terms of said note. Yet the defendant, not regarding his said promises, has not performed the same, though often requested thereto, but has neglected and refused so to do.”</p> <p>To this count the defendant demurred generally. . The court, at the June Term, 1888, Royce, Ch. J., presiding, overruled the demurrer and gave judgment for the plaintiff; to which the defendant excepted.</p> <p>This note on the face of the pleadings was the sole property of Mary J. Wright. Under No. 140, Acts of 1884, she is empowered to sue-alone upon it. The husband having no interest in the note nor in the suit cannot thrust himself in nor be brought in as a party. The wife must sue alone. Stearns v. Stearns, 30 Yt. 213 ;. Bartlett v. Boyd, 34 Yt. 260; Roberts’ Digest, p. 383, pi. 50-52.</p> <p>The allegation in the writ is a sufficient statement that the plaintiffs are husband and wife. Ghurch v. Westminster, 45 Yt. 380 ; R. L. s. 846.</p> <p>This note is dated in 1881. If the plaintiffs were married prior to Jan. 1st, 1885, the husband became liable for his wife’s debts and had a right to her personal property, this note among the rest. Having, therefore, an interest in the note; he may join in a suit upon it. The act of 1884 gives a married woman a right to sue upon a chose in action which is exclusively hers, but it does not debar the husband from joining in a suit upon one in which by the very terms of the act he must have an interest. Schouler, Dom. Rel., s. 114 ; Goombs v. Read, 16 Gray, 271; Mass. G. S., 1860, 537; Dunn v. Sargent, 101 Mass. 339; Wester veil v. Gregg, 12 N. Y. 372 ; Giddings v. Turgeon, 58 Yt. 106.</p> <p>This statute is not retrospective and should not be construed to have that effect. Lowry v. Keyes, 14 Yt. 74; Briggs v. Hubbard, 19 Yt. 60; Wires v. Farr, 25 Yt. 41; Richardson v. Book, 37 Yt. 599 ; Bturges v. Hull, 48 Yt. 302 ; Bash v. Ftm Kleeck, 7 Johns. 477; Rood v. Willey, 58 Yt. 474; Borhorty v. Madgett, 58 Yt. 323.</p>

<p>Assumpsit upon the warranty of title to a horse. Plea, nonassumpsit; trial by jury at the December Term, 1888, Ross, J.,.„ presiding. > Verdict for the plaintiff, exceptions by the defendant.</p> <p>It appeared that in 1883, John 0. Stapleton had replevied this horse from one Hope, and that the suit of replevin was then pending. Stapleton was indebted to the defendant, Chapman,., in the sum of about $125, and left the horse in the possession of one Brooks, with instructions to sell it and turn the proceeds-over to the defendant, or to permit the defendant to sell it and retain sufficient of the proceeds to pay his debt. While the suit in replevin was still pending, the defendant with consent of Brooks sold the horse to the plaintiff, received the pay for it, and! applied the full amount in extinguishment of his debt. After the sale Hope recovered judgment in the replevin suit of Staple-ton against him and brought a suit in replevin against the plaintiff for the horse, in which he also obtained judgment before the-commencement of this suit, the plaintifi making no defense.</p> <p>It appeared that during the negotiations for the sale between the plaintiff and defendant, the fact that this horse was involved-in litigation came out, and that the defendant then expressed the-opinion that the replevin bond which Stapleton had given stood, for the horse, so that if Hope recovered judgment he could only-look to the bond. The plaintiff further offered to show that he-thereupon refused to purchase the horse unless the defendant, would personally agree to make the title good, that the defendant did so agree, and that he made the purchase relying thereon». 'There was no written, memorandum of this agreement and the «defendant objected to its admission for that the promise sought to be shown was within the statute of frauds. The court held, •¡however, that the promise was an original one and- admitted the ^testimony.</p> <p>It' does not appear that any consideration for the promise ■passed to the defendant.' His note was good and it was immaterial to him whether it was paid by one person or another.</p> <p>Even if there was a good consideration, the promise is collateral. The horse did not belong to the defendant, and he did not in any way make it his by the sale. It was a sale for Stapleton -of his property, and -the promise was purely incidental to the .main transaction. When a promise is collateral the fact that the promisor got sotne benefit out of the transaction does not take fit out of the statute. Throop’s Rule 3 ; Throop’s Verb. Agr. :209 et sag. ; Birkmyr v. Darnell, 1 Salk. 27, (Throop Verb. Agr. 212); Matson v. Wharam, 2 Term Rep. 80, (Throop V. A. 214, 215) ; Arbuckle v. Hawks, 20 Vt. 538 ; Tileston v. Kettleton, 6 Pick. 509; MeadY. Watson, 5.7 Vt. 426; Skin■ner v. Oonant, 2 Vt. 453; Billingsley v. Demplewolf, 11 Ind. 414, (Throop V. A. 2,60); Steele v. Towne, 28 Vt. 771; 'Throop Verb. Agr. 610 ; Br. St. Fr: (4th Ed.) s. 214 ; Lamp-son v. Hobart, 28 Vt. 697 ; Gross v. Bichardson, 30 Vt. 641; Fullam v. Adams, 37 Vt. 391 ; Maulé v. Bucknell, 50 Pa. 39 ; Throop Verb. Agr., 614 et seq.; 46 Mich. 299.</p> <p>This was not a mere collateral undertaking on the part of the -defendant. The plaintiff refused to part with his money until ithe defendant had in effect made this horse his property and --assumed the burden of giving him a good title. Green v. Bur-don, 59 Vt. 425; Muller v. Iiimere, 46 Am. R., 291; Braudt •Sur, and Guar. s. 63 ; Fitzgerald v. Morrissey, 14 Neb. 198; Kelson v. Boynton, 3 Mete. 396 ; Alger v. Scoville, 1 Gray,-397 ; Emerson v. Slater, 22 Howd. 360 ; Mallory v. Gillett, 21 N. Y. 412; Dyer v. Gibson, 16 Wis. 580; Young v. French7 35 Wis. 116; Br. St. Er. 4th Ed., 214 c.; Cross’ v. Richardson, 30 Yt. 641'; Templeton v. Bascom, 33 Yt. 132; Brandt Sur. and Guar. s. 56 ; Stratton v. Hill, 134 Mass. 27.</p>

<p>This was an action in trespass for the alleged expulsion of the plaintiff, who, being an infant, brought suit by his next friend, from a common school. No special plea nor notice of special matter was filed. The case was tried by jury at the December Term, 1887, Tyler, J., presiding. Yerdict for the defendants ; ^exceptions by the plaintiff.</p> <p>The defendant Lawrence was the teacher of the school, and Kelsey the prudential .committee of -the district. This fact •¡appeared from the testimony of the plaintiff in the opening of .his case. The defendants claimed to justify the assault as such officers of the school; and offered to testify to such facts in their ■own behalf as would make out this defense. To this the plaintiff objected for the reason that no notice of such justification having been given by plea or otherwise, it could not now be •■shown. The court held, however, “ that the necessity for a special plea or notice was obviated by the fact that the plaintiff, in making out his prima facie case, had given evidence showing that the defendant Kelsey was, at the time of the alleged trespass, prudential committee of said district, and the defendant Lawrence the teacher of the school therein, and that these-defendants acted in such capacity of committee and teacher in expelling the plaintiff. Therefore the court admitted the testimony of the.defendants.”</p> <p>The other facts sufficiently appear in the opinion.</p> <p>IF. II. Bliss, for the plaintiff, cited, Allen v. ParJehurst, 10' Yt. 557; Briggs v. Mason, 61 Yt. 433 ; and Walker v. Hitchcoole, 19 Vt. 634, to the point that the defendants could not avail, themselves of matter in justification under the. general issue.</p>

<p>This was an appeal from the disallowance of commissioners •appointed by the Probate Court to receive and adjust claims -against the estate óf Benj. P. Wooster, deceased. The plaintiff ■filed with his appeal by way of declaration the' general counts, -and also a special count claiming to recover the amount duo on six promissory notes. The defendant pleaded the general issue, and the statute of limitations. To the plea of the statute the ^plaintiff replied that in thelifetime of the said Wooster, and before the running of the statute he had begun a suit on the same claim ■which he sought to enforce here, which had been discontinued by the appointment of commissioners, and that within one year from the discontinuance of sucli suit, he had presented the said claim •to such commissioners. The replication did not aver that the said Wooster had deceased. To this replication the defendant demurred, and for cause of demurrer specitied that “ the allegation in said replication respecting the death of Benj. P. Wooster is argumentative and no certain issue can be taken thereon, -and in other respects defective.”</p> <p>The court, December Term, 1887, Tyler, J., presiding, overruled the demurrer, and adjudged the replication sufficient, to-which the defendant excepted.</p> <p>It is indispensable that the replication should contain a direct averment that the previous suit was terminated by the death of the defendant. This replication contains none. 47 Yt. 77.</p> <p>The plaintiff seeks the benefit of B. L. s. 973, and the aver- '' ments in the replication are sufficient to bring the case within. ' the saving effect of that section.</p>

Special assumpsit. The writ was dated February 13, 1886.. The declaration counted upon a note executed by the defendant to the plaintiff.

This was an action of general assumpsit. Pleas, the general issue and offset. Heard at the December Term, 1887,Tyler, J., presiding, on referee’s report, exceptions thereto and motion to xecommit.- The following is the material part of the referee’s report: “Plaintiff is the administrator of the estate of Hernán Wilkinson, who died September 20th, 1888, leaving surviving him a widow and nine children, all of age, of whom Lewis H., the •defendant, is the oldest.

<p>Chancery. Post-obit. Contracts.</p> <p>1. An agreement among heirs, made before the death of the ancestor,. may be enforced in equity after bis death, where it has been so acted on that to refuse such relief would be inequitable.</p> <p>2. O. conveyed a part of his real estate to his two sons, M. and E., upon condition that they should support him during.his natural life and pay him an annuity; and the remainder to his other son, J., in consideration of $2,000, secured by mortgage on the premises conveyed. Subsequently,, , and during the lifetime of 0., the oratrix, who was the widow of J.,. released by deed her interest in the annuity to M. and E., and M. and, E. by deed released their interest in the mortgage to her, upon condition that she should be to one-third the expense of 0..’s support, as she • continued to be until his death. O. in his lifetime began a foreclosure-of the mortgage, ■ which was prosecuted to final decree by his administrator. The premises went under this decree, and one-third thereof was assigned to the defendant. Held, that equity would compel a conveyance of this interest to the oratrix.</p>

<p>larceny. R. I. s. 4141. Gross-Examinat%07i of Respondent.</p> <p>:l. Under B. L. s. 4141, the respondent may be convicted of a felony and sentenced to tbe State prison, whatever tbe value of tbe property stolen.</p> <p>"2. When a respondent becomes a witness in bis own behalf, be may on tbe cross-examination be discredited by injuring his character, but tbe evidence so elicited must be confined to this purpose alone, and cannot be generally considered by tbe jury in determining tbe question, guilty or not guilty, when tbe respondent has'not put bis character in issue.</p>

<p>This was a bill brought by the oratrix to set aside a deedi from her former husband, James Nichols, to the defendants,, upon the ground that the same was in fraud of her marital rights. The case was heard at the September Term, 1887, upon, pleadings, master’s report and exceptions of the defendants-thereto. Tyler, Chancellor, overruled the exceptions, and decreed that the deed be held void as to the oratrix. Appeal! by defendants.</p> <p>The oratrix married James Nichols in 1878. The defendants, were his children by a former wife. James Nichols deceased! December 23, 1884. The deed in question was executed Nov-10, 1884, and conveyed a farm and the personal property on it. James Nichols had lived upon and carried on this farm with the oratrix from the time of their marriage until about a year before the conveyance, when he moved off it at her solicitation. The farm was worth about $9,000, and the personal property $1,200. James Nichols had other property which he retained after the conveyarice to the amount of $1,500. There was resting upon* the farm at the date of the conveyance a mortgage which amounted to about $3,333. This mortgage was assumed by the-grantees as a condition of the deed, and in addition Henry E., one of the grantees, surrendered the notes of James to the-amount of $1,000. There was no other consideration.</p> <p>The bill alleged an ante-nuptial agreement with regard to this-property, and that the grantor had not sufficient mental capacity to make this conveyance and was unduly influenced thereto ;; but the master failed to find the fact of such ante-nuptial contract, and did find that the said James had sufficient mental capacity and was not unduly influenced. As to the intention of' the parties he reported :</p> <p>“ I find that he had contemplated disposing of his farm and:, the property thereon, as he did, for several months before he con - veyed it; and he also had made some efforts to find purchasers outside his family. I find that he talked with his brother late, in the summer and early autumn of that year, 1884, about disposing of his property, and what disposition he should make of it; and I find he so conveyed his property to his children in-accordance with a well matured plan and determinate purpose-on his part, that he had been forming for -several months, and. perhaps longer, in his own mind. So I find he intended to convey said farm and property thereon to his children, as shown by the orator’s exhibit No. 10, and conveyed it as he intended ; and he intended all the results and consequences to his* widow’s rights of property therein, and his creditor’s rights therein that would naturally and legitimately follow the deeding of his property as above set forth. And I find, hatt he intended to make a final disposition of his property so deeded. And I find he executed said conveyance to his children as aforesaid with full knowledge of the amount of the debts that he was then owing, and with full knowledge of the marital .-rights of the widow, in case of his decease, in his property. And I find that the grantees accepted of said deed, so far as they ever .accepted of it, with full knowledge of such rights of his wife, widow and creditors and with the intention of holding it against any claims of grantor’s wife or widow, or his creditors, by virtue •of and under said deed to them.</p> <p>I find that the natural and legitimate results and consequences •of the said James Nichols so deeding his property to his children were to deprive his widow of her rights of dower in the property so conveyed; and that he made such conveyance in ..anticipation of his not living long, and “ that he had but a short -time to stay,” and with the intent to deprive his widow of any nights of property in and to the property so conveyed.”</p> <p>The parties to this deed understood that it was made to divest the widow of her lights in the premises and property. The ■effect and intent of it was to do by deed what the grantor could not do by testamentary disposition. As such it was a fraud upon the oratrix and should be set aside. The widow’s right of dower cannot be defeated by this sort of proceeding. Thayer v. Thayer, 14 Yt. 118; 1 Story Eq. s. 629 ; Ladd v. Ladd, 14 Yt. 194; 11 U. S. 647; Van Wick v. Seward, 18 Wend. -385, 386, 387; Habergham v. Vincent, 2 Yeazey J. 204, and note; 1 Md. Chy. 337; Jenney v. Jenney, 24 Yt. 324; Bump. Fr. Cov. 282, 283; Cunningham v. Lreeborn, 3 Paige Chy. 557; Ladd v. Ladd, 14 Yt. 185 ; 2 Ohio 373, 378; Sukims v. % Arid, 73 U. S. 750 ; 41 Md. 107; 2 Bradw. 632; 50 Miss. 629; .2 Watt & McCard, 544.</p> <p>The intention of the parties was to avoid a duty resting upon the grantor, hence the deed was void under the statute against -fraudulent conveyances. B. L. ss. 1955, 4155 ; 7 Md., 537; Jones v. Spear, 21 Yt. 426; 5 Yt. 527; Edgell v. Lowell, 4 Yt. 405; 11 Gray, 217; Prout v. Vaughn, 52 Yt. 451; 2 Paige Chy. 54; Read v. Livingston, 3 John. Chy. 500; 4 John. Chy.' 450; 1 Eastern R. 506 ; Me Lane v. Johnson, 43 Yt. 49 ; 50 Yt. 653 ; Schouler on Executors and Adrnr. s. 220; Hyslop and Campbell v. Clarice, 14 Johnson, 458, 465 ; Kerr F. & M. 196; 10 Conn. 50; 9 Ala. 305.</p> <p>The fact that there was a part consideration cannot help the matter. Bassett v. McKenna, 52 Yt. 438 ; Robinson v. Stewart, 10 N. Y. 189 ; Holland v. Cruft, 20 Pick. 321; Sands v. Codwise, 4 John. 536.</p> <p>The oratrix must stand upon the case made by her bill. Thomas v. Warner, 15 Yt. 110, 114; Barrett v. Sargent, 1 8: Yt. 365, 369.</p> <p>The evil sought to be avoided by this bill is not the wrongful act of the grantor in having made this deed, but that of the-grantees in having induced him to make it.</p> <p>This deed was not a “ voluntary” one either at the common law or within the sense of R. L. s. 2228. 1 &m. Leading-Cases, 54; also see 2 Abb. L. Diet. 639, 340; BabcocJc v. Echler, 24 N. Y. 623.</p> <p>The consideration was not only valuable, but adequate.</p> <p>In view of the facts in this case it cannot be inferred that the-grantor intended any actual fraud to the oratrix, much less that-the grantees participated in this intent.</p>

<p>Fraudulent Conveyance. Gift, when Void as to Creditors. Lease, when Ment Collectable under Void.</p> <p>1. Conveyance upon an inadequate consideration, or upon no consideration,. is not void as to creditors, provided the grantor has remaining property-sufficient with which to pay his debts.</p> <p>2. The question of solvency must be determined as of the date of the conveyance, and no unforeseen contingency, like the death of the grantor and!. an expensive administration, should be considered.</p> <p>3. Where a deed is to become operative upon the termination of- a lease for-three years to the grantee then existing, such grantee is liable for the-rent reserved in the lease, if he actually occupies the premises, although-the lease was in parol. He cannot refer his occupancy to the deed.</p>

<p>This was an action of trespass on the case brought by thé plaintiff, as administratrix of the estate of Samuel S. Westcott, •against the defendant, for its tortious act resulting in the death -of the intestate. The defendant demurred generally to the plaintiff’s declaration. The court, September Term, 1888, Ross, J., presiding, sustained the demurrer, and adjudged the -declaration insufficient; to which the plaintiff excepted.</p> <p>The following is so much of the writ and declaration as is material to an understanding of the questions raised and decided :</p> <p>“ By the authority of the State of Vermont, you are hereby «commanded to attach, etc., * * * then and there to answer unto Ad die C. Westcott, of Waterbury, in the county of Washington, administratrix of the estate of Samuel S. Westcott, late -of Burlington, aforesaid, deceased, leaving a widow and one minor child, as such administratrix, whose letters, etc.”</p> <p>Then follow the usual averments of liability on the part of the defendant, but without any reference at all to the capacity in which the administratrix sues, or for whose benefit, or for what purpose the suit is brought, concluding in these terms, “By means of which improper and unlawful acts and neglects of the said defendant, the car in which the said Westcott was so riding and being transported was violently thrown from said railroad track and he was thereby then and there killed.</p> <p>“To the damage of the plaintiff (as such administratrix) as she says, $20,000.”</p> <p>At a subsequent term of court, the plaintiff filed an additional count, substantially like the one contained in the writ,’ but concluding in these words : “ By means of all which improper acts and neglects of the said defendant, the car in which the said Westcott was so being transported was violently thrown from the railroad track, and he was thereby, then and there and within two years before the commencement of this suit, killed, leaving a widow and next of kin surviving.”</p> <p>This action is based on E. L. ss. 2138 and 2139' The material facts requisite to support such action are, that the death of the intestate was caused, in this State, by the tortious act-of defendant; that the intestate left surviving him a widow, or next of kin, or both, and that the plaintiff is his administrator. These facts all appear in the declaration.</p> <p>No reference in the declaration to the statute upon which the action is brought is necessary. Drown v. Stimson, 2 Mass. 441, 444 ; Bath v. Freeport, 5 Mass. 325.</p> <p>There can be no doubt as to what law the action is founded upon. The declaration is in favor of the administrator, and alleges that his intestate was instantly killed, and left surviving a widow and next of kin. Hollenbeck v. B. JR. JR. Co., 9 Cush. 478.</p> <p>The declaration alleges that at the time of his death, the intestate left a widow and next of kin, then alive, and the legal presumption is that they are living now, and were at the corn-men cement of this suit.</p> <p>There is no authority for the contention that the names and residences of the beneficiaries should be stated in the declaration. Com. v. B. <& W. It. R. Oo., 11 Cush. 5L2; Corn. v. Eastern R. R. Oo., 5 Gray, 473 ; Gorh. v. B. <& A. R. R. Oo., 121 Mass. 36 ; State v. Gilmour,4n Foster, 461; Stewart v. T. H. <& I. R. R. Go., 103 Ind. 44.</p> <p>The declaration is defective in that it does not allege that the intestate left surviving a widow and next of kin. The description of the plaintiff in the writ cannot avail.</p> <p>Also in that it does not allege that such widow and next of kin were living at the time the suit was begun. 3 Wood’s Ry. Law, p. 1535; Pierce on Rys. 392 ; Wilson v. Bumstead, 12 Neb. 1; Nash v. Tansley, 28 Minn. 5 ; Lucas v. R. R. Co., 21 Bar. 247; Gettle v. B. <& O. R. R. Oo., 3 W. "Va. 376.</p> <p>It is further defective in that it does not give the names, residence or ages of the beneficiaries, nor their degree of dependence. Gettle v. R. R. Co., supra.</p> <p>The amount of damages depends on the pecuniary interest which the beneficiaries have in the life of the deceased, and the defendant cannot intelligently prepare his defense unless he is informed as to the extent of that interest.</p> <p>The declaration is further defective because it does not aver for what cause of action the suit is brought, whether for the damages^which would accrue to the estate of the intestate, or for the benefit of his widow and next of kin. Needham v. Grand Trunk Ry., 38 Yt. 304.</p>

This was a bill in chancery setting forth that the orators were-the owners of a spring with the right to take the water therefrom ; that the water was conducted therefrom in an aqueduct that the defendant Farr had acquired by deed the right to take from said aqueduct one-sixth part of the water flowing in it; that he claimed under said deed one-sixth part of the water im the spring, and was about to put down an independent pipe for the purpose of conducting the water to his…

<p>Town Lines. JR. A. Ch. 131, Report of Committee. Evidence..</p> <p>1. Where a petition under K. L. Ch. 131, alleges the taking on the part of the petitioner of the necessary preliminary steps, the appointment of a committee is an adjudication that such steps have been taken, and that question cannot be raised upon the coming in of the report.</p> <p>2. The report need not contain any statement that such preliminary steps have been taken.</p> <p>3. neither need it show that the committee have been sworn.</p> <p>4. Where the committee report that they have not considered certain evidence in coming to their conclusions, the reception of that evidence, although inadmissible, will not be a ground for refusing to accept their report.</p>

<p>Trust; when Created under li. L. s. 1933. Voluntary Deed without Consideration upon Parol Agreement will not Create.</p> <p>Q. Where the orator conveyed real estate to the intestate, who gave her note for the purchase price, and executed a lease at the same time for ten years, reserving a rent equal to the interest on the note,- it being mutually agreed at the time that the rent should offset the interest, and that if either party died within the life of the lease all the papers then executed should be annulled, held, that a written instrument executed by the intestate at that time and setting up the aboye facts did not create a trust under E. L. s. 1933.</p> <p>'2. The written instrument which creates a trust under this section must show with sufficient certainty the objects and nature of the trust.</p> <p>-3. In case of a voluntary deed, importing a consideration upon its face, and for the beneficial use of the grantee, made deliberately, without fraud, mistake or connivance, parol evidence is not admissible to show that the deed was really without consideration, and that the grantee agreed verbally to hold the premises in trust for the grantor.</p> <p>-4. A court of equity would not decree a reconveyance of the premises under such circumstances.</p> <p>.5. In such a case, evidence that the grantee is in mean circumstances, and not able to pay the consideration, is not evidence to show a trust in the grantee.</p>

. This was an action on the case for the negligence of thedeferidant in the transmission of a telegraphic message. Plea,', the 'general-issue, and trial by court at the' September Term,. 1888, Yeazey, J., presiding. The court found that the mistake was caused by want of due care on the part of .the defendant’s-operators. The facts sufficiently appear in the opinion. - Judgment for the plaintiff. Exceptions by the defendant.

This was an action in general asshmpsit for the recovery of •certain taxes assessed on the defendant’s list in the town of Arlington in the years 1881 and 1882. Plea, the general issue, and trial by jury at the June term, 1888, Veazey, J., presiding. Verdict for plaintiff. The defendant excepts.

Assumpsit for the account of a promissory note. Trial by jury at the December term, 1888, Taft, J., presiding. Verdict and judgment for the defendant. Held: as a matter of law, that the rescission was not seasonable. When the facts are in dispute, that •question is for the jury, but when, as here, there is no controversy of fact, it becomes a matter of law.

<p>Sire facias against the defendant as bail in the suit of the plaintiff against one Henry Lane. The declaration did not aver that the writ against the said Henry was issued as a capias, nor that such a state of facts existed as would entitled the plaintiff in that suit to a capias, but did allege that the said Henry had been arrested by the Sheriff of the County and was in his custody when the defendant became his bail by endorsing'his name on the writ. The defendant pleaded infancy; the plaintiff replied that after becoming of age the defendant had ratified his act, and to this replication the defendant demurred generally. The court, December Term, 1888, Taft, J., presiding, overruled the demurrer, and adjudged the replication sufficient, to which the defendant excepted. Exceptions passed to Supreme Court before final judgment.</p> <p>The contract of bail was void, not simply voidable. When the court can presume the contract of an infant to be to his prejudice it is void. Green v. Wilding, 44 Am. Rep. 696 ; Safford v. Ferguson, 31 Am. Rep. 639.</p> <p>The declaration is insufficient. It does not allege that the plaintiff in the suit against Henry Lane was entitled to a capias or that the writ issued as one. If the writ was illegal the bail was not liable. Aiken v. Richardson, 15 Yt. 502 ; Davis v. Dorr, 30 Yt. 97; Blood v. Orandall, 28 Yt. 396.</p> <p>The contracts, acknowledgments and recognizances of an infant are not void, but voidable. Beeves Dorn. Bel. 381.</p> <p>The settled rule is The only contract binding on an infant is the implied contract for necessaries. The only act which he is under legal incapacity to perform, is the appointment of an attorney, all other acts and contracts, executed or executory, are. voidable or confirmable by him at his election. 1 Am. Lead. Ca., 5th Ed., 300-1, cited and approved in Person, Admr. v. Chase, 37 Vt. 648.</p>

This was an action for libel. Plea, the general issue. Trial by jury at the February Term, 1889, Taft, J., presiding. Verdict for the plaintiff for one cent actual damages, and $333-exemplary damages. The testimony of the plaintiff tended to-show that the alleged' libel was contained in a letter, written by the defendant, and! sent through the postoffice in Bennington to the plaintiff’s wife.

Trespass for an assault and battery, alleged to have been committed by the defendant upon the plaintiff’s intestate. Plea, the general issue, and trial by jury at the December Teim, 1887, Powers, J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant. The defendant did not deny that he made the assault.

This was an action of trespass on the case, and was heard on general demurrer to the plaintiff’s declaration at the December Term, 1888, Taft, J., presiding. The demurrer was sustained .and the plaintiff excepted. The case appears in the opinion. The false representation was made prior to the contract and ■was no part of it. An action ex delicto may therefore be sustained. Fitts v. Hall, 9 N. H. 441; Towne v. Wiley, 23 Yt. 455.

This was a complaint to a justice of the peace, and came by appeal into the County Court, where it was tried by jury at the-December Term, .1888, Powers, (J., presiding. Verdict, hot guilty on the first count; guilty óf five offenses on the second count. The complaint was in two counts. The first count charged' the respondent with selling, furnishing and giving away intoxicating liquor without authority, following the form prescribed in R. L. s. 3859.

<p> Mortgage. Contribution. </p> <p>1. Thayer had a mortgage on land owned by Tarbell. Tarbell sold a portion of this land to D., and took a note secured by mortgage on the parcel’ sold, which he turned over to Thayer as collateral for his mortgage. The defendant afterwards attached the parcel remaining unsold, as the-property of Tarbell, and set it off on execution. 'After this attachment. Tarbell assigned his interest in the note of D. to-the orator. Thayer now brought a petition to foreclose his mortgage, making the orator and’, defendant parties, and obtained a decree, which the orator redeemed. ‘ Beld, that the orator had a right to redeem, and that the land set off by the defendant was liable to contribute to the payment of the Thayerdecree in the proportion that its value bore to the value of the entire-premises.</p> <p>2. In determining the value of the premises, the value of the D. note does-not establish the value of the land sold D.</p> <p>3. Lyman v. Byman, 32 Yt. 79, distinguished.</p>

<p> Merger, controlled by intention of grantee. Mortgage. </p> <p>1. Where a mortgagee takes to himself a conveyance of the mortgaged premises, it is a question of intention on his part whether a merger is thereby wrought. If his intention is expressed, that will control. If it is not expressed, then' a court of equity will presume his intention to be according to his best interests.</p> <p>2. The defendant took a second mortgage in 1878. In 1882 the petitioner, knowing of the defendant’s mortgage, took an assignment of the first mortgage, and in 1885 bought in the fee. Held, no merger.</p>

<p> Evidence. Experts. </p> <p>Expert testimony is not-admissible to show the shrinkage in measurement. of hemlock bark as measured in the pile, and afterwards in the car,, that being a matter of which the jury can judge from a description of the facts.</p>

<p>This was an action in genera! assumpsit to recover the amount-of a promissory note for $250, signed [by the 'defendant, aud> payable to Ella Fanenf, or bearer, on demand. Flea, the general issue, and trial by jury at the December Term, 1888, Rowers,. J., presiding. Exceptions by the defendant.</p> <p>It appeared that the defendant was the brother of one Prosper Brouilette, who, previously to the date of the note in suit,, had been arrested under bastardy proceedings begun at the-instance of the said Ella Faneuf, who then claimed to be pregnant by the said Prosper. These proceedings were finally discontinued by the payment of $250 in cash and the giving of this-note. The defendant claimed that the noté was to be enforced only upon the contingency that the said Ella' should be actually-confined ; that in fact she never was confined, but miscarried,, whereupon she had written to the plaintiff, who had previously become the owner of the note, notifying him of this fact, and; directing him to surrender it to the defendant.</p> <p>The testimony of plaintiff as to what was said about “ giving-bail or going to jail ” was material, and it was error for the court not to allow defendant to cross-examine as to these elements of the case. Sterling v. Sterling, 41 Yt. 91.</p> <p>Having once charged the jury on this evidence, the court ■could not prejudice defendant’s rights to a new trial by a' re-charge which was contradictory to its first charge. Alexander v. Blodgett, 44 Yt. 476 ; Powers, J., in Bovee v. Danville, -53 Yt. 190.</p> <p>Defendant had the affirmative of every issue that went to the jury, and should have been allowed to open and close the argument. Edwell v. Chamberlin, 31 N. Y. 611 ; Huntington v. •Conkey, 33 Barb. 318; Ayrault v. Chamberlin, 33 Barb. 229; Warner v. Haines, 6 C. &. P. 666 ; BLoxie v. Green, 37 How. Pr. 97 ; Brennan v. Security, c&c. Ins. Co., 4 Daly, 296 ; Milder d v. Thorn, 56 N. Y. 402; Penrhyn Slate .Co. v. Meyer, 8 Daly, 61; Mercer v. Whall, 5 Ad. & El. N. S. 447; Davis v. Mason, 4 Pick. 158 ; Brooks v. Barrett, 7 Pick. 98 ; Chicago, Burlington, c&c. R. B. v. Bryan, 90 111. 126 ; Harvey v. Elle■thorpe, 26 111. 418 ; Colwell v. Brower, 75 111. 516 ; Hudson v. Wetherington, 79 N. C. 3; Harris v. Kent, 11 Ind. 136 ; Richardson v. Hixon, 20 Pa. St. 19 ; McKenzie v. Milligan, 1 Bay (S. 0.) 846 ; Brown v. Kirkpatrick, 5 S. C. 267.</p> <p>The court charged the jury — “You have nothing to do with ■the amount Mr. Harvey paid on the note.” This was ei’ror.</p> <p>It was also error for the court to comment upon these statements of .Mr. Harvey about which a cross-examination was .refused.</p> <p>The limitation put by the court upo» the cross-examination of 'the plaintiff was correct, first, because it did not deprive defendant of any testimony, either material or admissible; second, because such limitation was in the discretion of the court; and, ■third, because the court charged the jury that this evidence, was immaterial.</p> <p>The ruling of the court as to the opening and close in argument was clearly correct; because nothing in the character of ■the defense tended to reverse the relations of the parties i» this respect from the usual practice, aud, also, being matter of dis■cretion, is not subject to exception. Bou. Die. tit., “Right to begin,” p. 486; 1 Greenl. Ev. s. 74; 2 Gray, 260.</p> <p>The amount paid by Mr. Harvey for the note was immaterial because the note was open to all the defenses against him which -would have been available against the original payee.</p>

<p>Recitals in Tax Deed not Evidence. No Presumption in Favor o.f Regularity. No. 85, Acts 1886.</p> <p>1. The recitals in a tax deed, as to the preliminary proceedings are no evidence of the facts stated in such recitals.</p> <p>2. Where the grantee has never been in possession under a tax deed there is no presumption in favor of the regularity of such proceedings.</p> <p>3. One in possession under claim and color of title is not a mere intruder, but stands the same with reference to one claiming under a tax deed as. would .the former owner.</p> <p>4. In the case of one so in possession Act No. 85,1886, providing that the payment of taxes for twenty years by the grantee in a tax deed shall perfect his title as against a trespasser, does not apply.</p>

<p> Pleading. Principal and Agent. New Trial. </p> <p>2.Where a plea alleges a fact not directly, but in parenthesis, and that. allegation is traversed by the replication, an issue of fact is thereby joined which should go to the jury.</p> <p>2. A traveling salesman, who is furnished with money by his employer to-pay his expenses while on the road, cannot bind his principal for the-payment of such expenses, if, before receiving notice from the party extending such credit, the employer has settled with his salesman and' allowed him the amount of such expenses. .</p> <p>3. A party seeking to recover under such a state of facts must show either-an authority in the agent to bind the principal in that instance, or that-the agent had been accustomed to do business in this manner, and that., the principal knew it.</p> <p>4. B'eld, that the defendant had not, on his petition for a new trial, made a«. . . case within the rule of Thayer v. Geniral Vt R. R. Go., 60 Yt. 214.</p>

<p>This .was a suit in assumpsit to recover the amount due for work done on the house and barn of the defendant, and -perfect’ a mechanic’s lien for the same. Heard at the May Term, 1888,.. Ross, J., presiding, on referee’s report. The court rendered judgment.in favor of the plaintiffs for t.he amount reported, but refused to charge the same as a mechanic’s lien. To that part: of the judgment vacating the operation of the lien the plaintiffs-excepted.</p> <p>The report found that the plaintiffs agreed to do certain work for the defendant on his house and barn, for a stipulated sum,, and that they completed the job, according to the contract, May 5, 1887. The report did not show when the amount agreed upon for the work was to be paid. On the 1st day of August, 1887, the plaintiffs filed in- the town clerk’s office of Hartford, where said property was situate, “ a mechanic’s lien upon said buildings- and the lot of land on which the same stand, with a written memorandum signed by them asserting such lien, which was-within time to perfect their lien for their labor; and the plaintiffs prayed out the wiit in this cause October 25, 1887, and the-¡same was served on the 7th of November, 1887, attaching .said real estate, all which was in time to preserve said lien by-force of the statute.”</p>

This was an action of trespass on the freehold. Plea, the /general issue, and trial by jury at the December Term, 1888, Powers, J., presiding. Exceptions by the defendants.

Motion as to the allowance of costs. Heard at the December Term, 1888, Powers, J\, presiding. After this suit had been entered in the County Court, the defendant, in a suit between the same parties, obtained a decree from the Court of Chancery perpetually enjoining its further prosecution. Thereupon the plaintiff discontinued this suit in obedience to such decree, and the defendant moved for her costs.

<p>This was an appeal to tke County Court from tke order of tke 'Court of Insolvency for the District of Bradford, dismissing the -petition of George W. Baker, insolvent, that his case might be brought forward and proceeded with by such Court of Insolvency. The defendants moved in the County Court to dismiss said appeal. The court, December Term, 1887, Eoss, J., presiding, overruled, pro forma, the motion to dismiss-. Exceptions >by the defendants. The facts appear in the opinion.</p> <p>No appeal lies to the County Court from the Court of Insolvency except such as is given by statute. None of the provisions for. an appeal reach this case. R. L. ss. 1810, 1811, 1812' and 1870. White v. Haskins, 59 Yt. 556; Bassett et al. v_ Hutchinson et al., 9 Allen, 199; Ripley v. Griggs,52 ~V t„ 461; in re Bowles, 57 Yt. 386.</p> <p>This was a matter which referred to the adjudication of insolvency against the insolvent. Hence an appeal was properly taken.under R. L. s. 1870, par. 7.</p>

<p>This was a petition in chancery and was heard before Eowell,. Chancellor, at the June Term, 1888, on bill, answer, master’s report and exceptions of the defendants thereto. No copy of the pleadings has been furnished; the reporter. From the master’s-report it would appear that in' February, 1887, the oratrix was adjudged an insane person, and B. D. Hartshorn appointed her guardian. The subsequent November Eoxana died, leaving a will, which was admitted to probate. One Ora Drew was-appointed her administrator, with the will annexed, and as such was, at the December Term, 1887, admitted to prosecute this-suit. '</p> <p>When the oratrix died she was eighty-five years old. The defendant, Eoxana Brooks, was a niece of the oratrix. In 1883,, she and her husband, the defendant William, were living on a farm in Concord, of which the legal title was in one Hill. William obtained a decree allowing him to redeem this farm upon-the payment of $448.66. This sum he borrowed of the oratrix,. giving her his note for the amount, dated April 24, 1883, and he and his wife quit-claimed the farm to the oratrix upon condition that when this note was paid it should be redeeded to them.</p> <p>The defendants claimed that the July following the oratrix. gave this note to the defendant Eoxana, but the master found that this claim was not substantiated.</p> <p>In November, 1883, the defendant William sold this .Concordi farm to one Morency. The oratrix deeded the farm to Morency,. ■and. took back a mortgage to secure the payment of six notes, -one for $50 and five for $100 each, payable to her order. These notes were held by the oratrix as security for the note for :$4A8.66.</p> <p>In December, 1883, the defendants went to live with the ■oratrix upon her farm in Danville, and continued to reside with her until the spring of 1885. In February, 1885, the defendant William bargained for the farm in Danville known'as the Hariris farm. February 1, the farm was conveyed by Harris to the .-said defendant, in consideration of $600, $200 of which was paid in cash, and $100 in the notes of the defendants secured by anortgage.on the premises. As further security the said defendant turned out four of the Morency notes. These notes had been paid to Harris and the mortgage indebtedness from Brooks ■to him fully extinguished. The $2'00 'was furnished 'by the oratrix. The defendants claim that both the $200 and the Morency motes were given to them by the oratrix. The oratrix claimed that they were both a loan and that the defendants agreed to •«execute a mortgage on the Harris farm to secure her therefor. Upon this branch- of the case the report of the master was as rfollows:</p> <p>“ I find that the oratrix let the defendants have the notes and the money upon an agreement that they would give-her a mortgage or a deed of the Harris farm as security therefor. I find this fact entirely from parol evidence which was seasonably -objected to by defendants.”</p> <p>Some time previous to the June Term, 1885, of the Caledonia ■County Court, a suit was begun by the oratrix- against the -defendant William and the Harris place attached. Previously "to the December Term, 1886, the oratrix signed a written agreement that this suit might be discontinued without costs, and it ■was so entered at such December Term. On the 6th of December, 1886, the oratrix executed another release discharging the •said William from all claims of all kinds whatever. This last release was under seal.</p> <p>It was claimed on behalf of the oratrix that this last instrument was procured by fraud, and that when she executed the-same she was incompetent thereto. The master found:</p> <p>“ At the time of the execution of said instrument she had been confined, to her bed for most of the time for two years ; she-had become too feeble to write ; was almost blind ; had not physical power sufficient to make her mark upon the paper without assistance. I am satisfied that her mind had become weakened! and impaired by age and physical infirmities; that at times she would seem bright and capable of understanding business to» some extent and at other times she would become confused in? mind and of but little understanding.</p> <p>“ She had been frequently urged to sign papers before this time' and had refused; she had refused to sign a like paper at an earlier date when fully and fairly explained to her. The accumulation of costs of suit and largo attorney fees had been frequently brought to her attention by defendant; he had given) her to understand that the suit and costs might be stopped and they could settle their matters between themselves and save the-excessive burden of costs. From all the circumstances and evidence in the case I am more inclined to the opinion .that she did not understand the effect of the instrument which she signed p that she only intended to have the costs and the suit stopped that the representations of the defendant that he wanted her to-sign a paper to stop suit and costs, and the paper itself, when read to her, produced one general impression on her mind and that her understanding of the transaction was that she was only-stopping- the suit and costs a*d not discharging her claim, and, I so find.”</p> <p>In a supplemental report the master-further found :</p> <p>“ In answer to request No. 6,1 will say I think she did "have sufficient mental capacity to understand her real relations to the defendants, and whether they owed her or not, and as to amount of property, and whether she wanted suit prosecuted or not, and whether she wanted to assist defendants. I do not think she had mental capacity sufficient to understand the effect of the: ■written instrument alone or by any assistance that it appears she had from Arad Wells. I do think if the paper had been plainly explained to her, and she had been told fully what its •effect, would be upon her rights, that she would have understood the instrument and explanation together and comprehended what she was doing.”</p> <p>Upon this question of mental capacity the master received, -•against the objection of the defendant, the testimony of certain witnesses, not experts, but who were acquainted with the oratrix ■and had associated with her more or less, who were allowed to •state their opinion as to her mental capacity and to detail certain conversations with her as bearing upon this question of •capacity. The master found that these conversations did not tend to show to his mind that she was non compos.</p> <p>H. C. Ide, of counsel for the oratrix in this suit, and who had -been her attorney in the suit at law, was permitted to testify as ■follows to a conversation between himself and the defendant 'William while the suit at law was pending :</p> <p>I told him we could beat him out of his boots, and that if he expected that he could convince any twelve men that Roxana Chickering, as poor as she was and as stingy as she was, had .given him six hundred dollars he would be almiglitily mistaken.</p> <p>“ Said he didn’t claim she had given it to him. I asked him why he didn’t pay her, then ; and h'e said he was ready to pay her in the way. he agreed to, and said he agreed to support her •.for life if she would let him have that property he had to buy the. Harris place with. * * ' * I urged him to settle the matter by giving security on the Harris place-for* her support. He refused to do it and said he should try the case.”'</p> <p>The orator was also allowed, ■ against the objection of the •■defendants, .to" ask this question :</p> <p>“ Erom' your knowledge of Roxana Chickering, as above •stated, state whether or not, in your opinion, she has, at any time during the last five years, had sufficient mental.capacity and judgment to comprehend her financial situation and to transact business intelligently and understandingly ?”</p> <p>Ans. — “ No, sir, I don’t think she has.”</p> <p>The defendant filed the following exceptions to the master’s report:</p> <p>1. The said defendant excepts to said report because the referee admitted oral evidence of an agreement by said defendant to .give said plaintiff a deed or mortgage, against the objection and •exception of the defendant.</p> <p>2. Because the referee permitted the evidence of conversations •óf the plaintiff to be shown, as set forth in the referee’s minutes.</p> <p>3. Becanse witnesses not experts were allowed to give opinions of plaintiff’s mental capacity under circumstances shown in the case.</p> <p>1.Because of the admission of evidence in all other cases, as •■shown by the report and the referee’s- minutes, which is referred to, when objected to by the said defendant, Win. Brooks.</p> <p>The chancellor decreed:</p> <p>1. That the second, third and fourth exceptions to the master’s report be overruled and the report accepted,</p> <p>2. That the first exception to the report be sustained, as it •seems from the report that the master understood and treated the objection to the parol evidence as going to its non-admissibility to prove the agreement found upon it. '</p> <p>3. That the paper writing of December 6, 1886, mentioned in the report, purporting to be a discharge of all claims, etc., to •be set aside and held for naught.</p> <p>1. That the orator is not entitled to a decree for the specific performance of the parol agreement found; nor to have the sum •due him made a charge upon the Harris farm ; but, inasmuch •as this court has jurisdiction of the case for the purpose of setting aside said discharge, the orator is entitled to a decree for ithe amount due him, namely, $148.66, with interest thereon ■from April 24, 1883, and the further sum of $200, with the interest thereon from February i, 1885, and it is so decreed.</p> <p>From this decree both the oratrix and defendants appealed.</p> <p>The conversations with the oratrix were admissible as bearing-upon the question of her capacity-. Crocker v. Chase, 57 Vt. 419 ; cases cited Eoberts’ Digest, pp. 287, 288 ; King v. Davisr 60 Vt. 502.</p> <p>The objection to the admission of parol evidence'to prove the agreement to mortgage cannot be sustained. Not having been insisted on in the answer it must be considered as waived-Howe v. Chesley, 56 Vt. 727; Battel v. Matot, 58 Vt. 271.</p> <p>The objection to the admission of this evidence before the master was general, and not therefore sufficient to raise the question of the Statute of Frauds. Weeks v. Barron, 38 Vt. 420 ; Montgomery v. Edwards, 46 Vt. 151; Strong v. Dodd, 47 Vt. 354.</p> <p>The court should exercise jurisdiction. No objection has been made to the want of it and any such objection comes too late in this court. Canfield v. Andrews, 54 Vt. 1; Smith v. Hock, 5!> Vt. 232.</p> <p>But the court has jurisdiction to set aside this release and will therefore retain it. Mann v. Betterly, 21 Vt. 326 ; Holden v-Crawford, 1 Aik. 390; Howard v. Edgell, 17 Vt. 9 ; Story Eq. Jur., ss. 692-703.</p> <p>The court has no jurisdiction to give such a decree as the one appealed from. This bill was brought to compel the execution of a mortgage, and the decree is for the • payment - of a sum of money.</p> <p>The report does not show such mental incapacity as to warrant the setting aside of the release. Stewart v. Flint, 59 Vt. 144,. and cases.</p>

<p> Prescription; when verbal grant becomes absolute by. Aqueduct. </p> <p>1. When one enters upon the premises of another and takes water from a-spring thereon situate for more than fifteen years continuously, under a verbal gift of the water so taken, he thereby acquires an absolute-right to the extent of such use.</p> <p>2. And in such case he may lay down a new and different conduit, provided’ he takes no more water through it.</p>

This was an appeal from the report of commissioners for the-, allowance of claims against the estate of Calvin Woodward. Declaration in general assumpsit. Plea, the general issue and Statute of Limitations. Heard at the June Term, 1888, Tyler,, J., presiding, on referee’s report. Judgment for the plaintiff' for the larger sum reported. The case appears in the opinion.

This was an action of trespass on the case for obstructing the plaintiffs flume and diverting the water therefrom; and wap. heard at the December Term, 1888, Tyler, J., presiding, upon the report of a referee. Judgment for the defendant, and exceptions by the plaintiff. The following facts appeared. The water privilege in dispute-is situated on Stevens river, and both parties claim the first right to draw water from a dam across that stream.

This was an action of replevin, heard at the June Term, 1888 Rowell, J., presiding. The court found the following facts : Nov. 8,1884, oneM. executed and delivered to plaintiffs a chattel mortgage of’ certain live stock, which mortgage was duly recorded. Afterwards M. delivered said live stock to the defendant to be kept for him on his farm in Danville.

Bill in chancery for the construction of the fifth and seventh paragraphs of, and the first codicil to, the will of A. E. Judevine by his executors against Malvina E. Judevine, the University of Vermont and State Agricultural College, and the town of Concord. Heard on bill and answers at the December Term,'1888. Tyler, Chancellor, dismissed the bill pro forma. Appeal by the orators. The fifth^ sixth and seventh paragraphs and the first codicil were as follows: “ Article 5.

This was an action of debt for goods sold and delivered, and. certain notes given therefor, and upon sec. 3279, E. L., against' Oscar L. Morrill, Joseph P. Lamson, W. W. Buchan on and: Jason Britt, as director of the Cabot Carriage Company, and as partners. Process was never served on Buchanon, he being: without the State, and Britt died before trial. Plea, the general issue, and trial by court at- the September Term, 1887, Taft, J.*. presiding.

This was an action in assumpsit to recover taxes for the years 1883 and 1885, claimed to be due from the defendant, as the ■administrator of one White, to the Northfield Graded School District. Plea, the general issue, and trial by jury, March Term, 1888, Eowell, J., presiding. The said White deceased in 1870, and his estate continued •undistributed from that time until 1885.

Action, general assumpsit. Plea, the general issue-with notice ■ of special matter. Trial by court at the March Term, 1889,. Royce, Ch. J., presiding. The suit was brought in favor of George H. Hathaway. On? trial the plaintiff asked leave to amend the original writ- by-adding after the words “ to answer to George H. Hathaway,” the-further words “ doing business under the name of the Redpath Lyceum Bureau.” The court allowed the amendment and the-defendant excepted.

<p>Conditional sale. JVo. 93, Acts of 1884.</p> <p>1. Since tbe passage of No. 93, Acts of 1884, tbe vendee in a conditional sale,. .where a valid lien bas been created under tbe statute in favor of tbevendor, bas a right to' the possession of tbe property until thirty days after breach of condition.</p> <p>2. In such case tbe only remedy of tbe vendor at law is to proceed under the-Act.</p>

This was an appeal from the judgment of a justice of the peace. The defendants contended that the suit should be dismissed for the reason that the justice had no jurisdiction in the premises,* and it was stipulated that the same judgment should be given as though the proper pleadings had been filed. The court at the April Term, 1889, Royce, Ch. J., presiding, dismissed the appeal. The plaintiff excepted.

<p>Of these three cases the first and third came by appeal from the judgment of a justice of the peace into the County Court. The second was originally brought to the County Court. They were all actions in general assumpsit brought against the defendants as partners; were all referred to the same referee, and were all heard upon the report of such referee and exceptions of defendant Mallory thereto, at the December Term, 1887.</p> <p>Judgment for the plaintiffs ; exceptions by defendant Mallory.</p> <p>The question raised will 'sufficiently appear from the facts in the first case.</p> <p>The plaintiff’s account was lor supplies furnished the defendant Bruce in the business of getting out poplar wood, which the-defendant Mallory had and sold. The plaintiff claimed that the-defendants were co-partners in this business, which the defendant Mallory denied. The defendant Bruce did not appear andi was not improved as a witness either before the justice or the-referee and judgment was rendered against him by defaulfi As-to the liability of Mallory the referee reported as follows:</p> <p>“ Plaintiff’s testimony as to partnership was what defendant Bruce had told plaintiff and told others. I find from the testiunony and papers produced that defendant Bruce was not a partner, in fact, with defendant Mallory.</p> <p>“Defendant Bruce seemed to be an agent of defendant Mallory’s and was sent to Wolcott to have a general oversight of -the defendant Mallory’s business and managed and controlled it generally, as defendant lived in East Montpelier, Yt., and did but little in regard to said poplar wood business, which was what said Bruce was getting out for said Mallory and said Mallory was disposing of same to paper makers. I find that defendant Mallory did not hold himself out as a partner with defendant Bruce and when he found, as he did, that Bruce had so represented he repudiated that relation except in those case's where he consented to be holden with said Bruce. I find that Bruce was not responsible and was doing jobs of cutting and getting out poplar lumber for Mallory and that his property was mostly in Mallory’s hands by a personal property mortgage, and that to carry on his work he had to have help from Mallory.</p> <p>“ I find plaintiff had a talk with defendant Mallory before the plaintiff’s account began at the time defendant Mallory paid a bill to plaintiff for defendant Bruce of about $30. The plaintiff and defendant Mallory disagreed as to wliat was said at that time. Plaintiff claims defendant Mallory told him to deliver Bruce meal and other stuff out of his mill on his order, and that he, the defendant Mallory, would be holden for it, and plaintiff is supported in his claim by one E. N. Dunbar, who worked in ‘plaintiff’s mill while said account was accruing and was present when the conversation took place. Defendant Mallory claims -that he never said to plaintiff to deliver Bruce goods or on his order and that he would pay for them, and never gave Bruce -authority to borrow money of plaintiff. Plaintiff produced one E. L. Ainsworth, who testified that he saw defendant Mallory at East Montpelier in October, 1876, and that Mallory told him he told plaintiff Bundy to let Bruce have meal and stuff out of his mill and he would see it paid. It appeared plaintiff dunned defendant Mallory' for the pay for stuff furnished out of his mill to defendant Bruce and two letters are presented in evidence written by defendant Mallory to plaintiff. Said letters, are attached to this report and made a part of same. I.find that all that was- paid was paid by defendant Mallory, his checks, as the-credits show.</p> <p>“ From all the evidence in the'case I find that defendant Mallory did agree to be liolden for the meal and stuff furnished by plaintiff to defendant Bruce, being mostly meal furnished Bruce,, or on his orders, to feed teams with that were at work on the poplar jobs, and that said agreement was made before-the plaintiff’s account began.” . '</p> <p>The case finds that-the defendants were not partners and that credit was not given to them jointly ; therefore a judgment cannot be entered against them jointly.</p> <p>The goods were delivered to Bruce and charged to him upon Mallory’s agreement to see them paid for. That agreement was within the Statute of Frauds. Cole v. Shurtleff, ál Yt. 311 p Anderson v. Davis, 9 Yt. 136 ; Fullarn v. Adams, 37 Yt. 391 p Sinclair v. Richardson, 12 Yt. 33 ; lioberts’ Digest, 336, cases, cited.</p> <p>The plaintiff delivered these goods under a contract with Mallory. When Mallory learned that the credit of Bruce and Mallory had been pledged for their payment he ratified that act.</p>

<p>Imvedinq officer. Pleadinqs. Habeas Gorvus : when retúrn- ’ able. ' It. I. s. 1348.</p> <p>1. In an indictment for impeding an officer, it is a sufficient allegation of official capacity to say that the person impeded was a sheriff.</p> <p>2. The indictment alleged that the respondents made an assault .and impeded the officer by making such assault. Held, not bad. for duplicity»</p> <p>3. It further alleged that the officer was endeavoring to execute his process-“by attempting to apprehend the body of one Julia Whitcomb.” Held» 'sufficient.</p> <p>4. t A writ of habeas corpus is not void because made returnable on the first secular day after its issue, that being forthwith within the meaning of B. L. s. 1348.</p> <p>5. It is not necessary that the writ should be subsequently returned. If the process under which an officer is acting is strictly legal, an d lie-acts in good faith, it is a crime to impede him.</p>