Volume 62 — Vermont Reports

<p>Assumpsit for the amount of a promissory note. Plea, the general issue, with notice that the defendant would, on trial, deny the signature. Trial by jury at the February Term, 1889, Orleans County, Taft, J., presiding. Yerdiet and judgment for the plaintiff. Exceptions by the defendant.</p> <p>The case had been once tried before. On this trial it became material to show what certain witnesses testified to upon the former trial, and for that purpose the defendant offered a duly certified transcript of the stenographer’s notes, taken upon such former trial, which was excluded. The transcript so offered was not made under order of the court, and was never filed in the clerk’s office.</p> <p>The testimony of the plaintiff tended to show that just before his death the intestate was at the village of Hardwick, where the plaintiff resided, and inquired for her for the purpose of paying the note, and that he came in company with a third person. Upon this trial the plaintiff’s evidence indicated that this third person might have been Mr. Putnam from Montpelier. Thereupon the defendant proposed to show that upon the former trial the plaintiff claimed that this person was a Doctor Walton, and had introduced two witnesses to that effect.</p> <p>The plaintiff claimed to have taken this note through her agent, F. T. Bridgman. It was agreed that the said Bridgman wrote the body of the note, and the defendant claimed that he forged the signature. He was improved as a witness by the plaintiff, and, on his cross-exanjination, was asked to and did write a copy of the note in suit. This copy the defendant after-wards offered in evidence “for the purpose of showing that when asked to write this copy he disguised his hand, and did not write an honest copy.”</p> <p>The said F. T. Bridgman testified that all he had said or done with or about this note and its collection, he had done as the agent of the plaintiff. Upon the trial the plaintiff introduced one Dorman Bridgman as a witness, who testified that after the death of Dr. Corey the witness, F. T. Bridgman, had come to him and wished him to take this note in suit, and pretend to ■own it and present it against the estate of Dr. Corey. The witness, F. T. Bridgman, had previously, in his testimony at this trial, denied having any such conversation with the said Dorman Bridgman.</p> <p>The defendant claimed that this testimony was admissible for two purposes, first, to contradict the witness, F. T. Bridgman, and, second, on the main issue, as tending to show that if this note had been an honest one, a third party would not have been solicited to take it and become its owner for the purpose of presenting it to the commissioners. The court admitted it on the first ground, but held that it was not admissible for the second purpose, to which the defendant excepted.</p> <p>The plaintiff introduced one Miles as a witness, who testified that in the spring of 1883 he went to Dr. Corey for the purpose of borrowing some money, and that Dr. Corey then told him that he had no money to loan himself, but that he was going to-pay Carrie Bridgman, the plaintiff, some in a few days, and that he could probably get it of her.</p> <p>In reference to this testimony, the defendant offered to show by Mrs. Corey that at that time Dr. Corey had a large sum of money lying idle, and that soon after he deposited in the bank nearly two thousand dollars, upon which he only received four per cent interest.</p> <p>The defendant offered in evidence a tax inventory made by Dr. Corey in the spring of 1882, to the listers of Craftsbury, where he then resided and was a tax-payer, for the purpose of showing that he did not offset the debt of three hundred dollars as an indebtedness.</p> <p>The defendant proposed to ask the witness, E. T. Bridgman, this question, which was excluded:</p> <p>“ Whether, after Dr. Corey’s death, and the commissioners-had met, you had a conversation with Mr. Perley, in which Mr. Perley asked you what had become of the account against Corey’s estate ?”</p> <p>The defendant also offered to -show that the intestate died1 some weeks after this note became due; that for some time before his death he was very feeble; that he knew his disease was a mortal one, and was engaged in settling his affairs.</p> <p>The plaintiff claimed that the note in suit had been written by the witness, E. T. Bridgman, upon a piece of paper upon which, there had been no writing previous to the writing of the note thereon, a clean piece of paper.</p> <p>The defendant maintained that there had been writing in pencil, which had been erased before the note was written in ink. Upon this point the defendant improved one Ames, who testified that for several years he had been largely engaged in the examination and comparison of handwriting; that in this he frequently made use of the compound microscope, and that for "the past five years lie had made almost daily use of it in the ■examination of papers. He further testified that one unacquainted with the use of the compound microscope could make no use of it in such examination, but the court did not find this to be the_ fact. He further testified that one having intelligence ■and judgment in the use of the different object glasses, he supposed might use it.</p> <p>The defendant offered to show by this witness that he made •an examination of the surface of the paper upon which the note in suit was written, under the compound microscope ; that such ■examination revealed the traces of pencil marks in certain portions, and that the fibre of the paper over the entire surface had the appearance of having been broken by being rubbed' before the ink was laid on. The court held, however, that •expert testimony was not competent for this purpose, that the microscope which was there in court could be used -by the jury themselves, and excluded the testimony.</p> <p>The compound microsc >pe was in court and the jury were permitted to use the same in the examination of the note in suit.</p> <p>The nature of the other exceptions appears in the opinion.</p> <p>R. L. ss. 810, 812 and 816 are as follows:</p> <p>Sec. 810. “The presiding judge of each County Court and the chancellor of the Court of Chancery in each county, may each in his discretion, appoint and employ a stenographic reporter, to make a verbatim report of the proceedings of either of said courts, at any term thereof; and of such proceedings in hearings before auditors, referees and masters in chancery, as either such presiding judge or such chancellor may order to be reported, for the use and convenience of said courts and of parties having business therein. The judge or chancellor may discharge such reporter at any time.”</p> <p>Sec. 812. “ Such reporter shall be sworn before entering upon his duties, and shall be responsible for the correctness of his reports, and all copies thereof made by him or under his direction and certified by him to be correct.”</p> <p>Sec. 816. “ All transcripts of evidence, or proceedings, in any cause or hearing tried in either of such courts, or in any •cause or hearing tried before an auditor, referee or master in chancery, ordered to be reported by the presiding judge or the chancellor, and made by, or under the direction of, said reporter, and duly certified by him to be a verbatim transcript of his verbatim stenographic notes of such evidence or proceedings, shall be received as evidence in any court in any cause, where the subject matter would be admissible under the rules of evidence.”</p> <p>The transcript of the stenographer’s notes should have been admitted. The statute makes him an officer of the court, and expressly provides that a transcript of his notes duly certified shall be received as evidence. R. L. ss. 815, 816, 810. Quinn v. Halbert, 57 Yt. 178. State v. Hannett, 54 Yt. 88, is not in point. There no transcript was offered, but the stenographer himself was called to read his notes.</p> <p>Tiie defendant should have been allowed to show that the-plaintiff introduced testimony on the former trial to prove that the stranger with Dr. Corey was a different person from the one indicated by her evidence on this trial. It is always permissible to show that a party has made claims inconsistent with those he makes on trial. Lander v. Seaver, 32 Yt. 114, 125 ; JSTye v. 1Werriam, 35 Yt. 445; Hotchkiss v. Ladd, 43 Yt. 353.'</p> <p>It was proper to ask the witness, F. T. Bridgman, whether he had testified to all that took place before the commissioners. Briggs v. Taylor, 35 Vt. 68.</p> <p>The amount of this note was but three hundred dollars, and the plaintiff claimed that the intestate borrowed it at five per cent to re-let it at six. In view of this claim it was permissible to show that-he asked no deduction in his tax inventory, that he was a wealthy man and that, when this note fell due, had some thousands on deposit, upon which he received but four per cent interest; that he was for some time before his death conscious that his disease was- a mortal one, and carefully settled-all his business affairs. All these circumstances render improbable the facts asserted by the plaintiff, and lienee are admissible. Richardsons. Turnpike Go., 6 Yt. 504; Downer v. Bowen, 12 Vt. 454; Kirkaldie v. Paige, 17 Vt. 260 ; Hard v-Brown, 18 Vt. 97; Houghton v. Clough, 30 Vt. 312; Kim-ball v. Locke, 31 Vt. 683 ; Frost v. Frost, 33 Vt. 640; Bidder v. Smith, 34 Vt. 294; Strong v. Slicer; 35 Vt. 43 ; Henry v. Huntley, 37 Vt. 316 ; Thayer v. Davis, 38 Vt. 164; Brown v. Welch, 38 Vt. 241; Hiñe v. Pomeroy, 39 Vt. 219; Hardy v. Cheney, 42 Vt. 421; Bennett v. Stacy, 48 Vt. 163 ; Davis v. Windsor Savings Bank, 48 Vt. 540 ; Bead v. Bead, 56 Vt. 493.</p> <p>As the agent of the plaintiff, F. T. Bridgman asked Dorman Bridgman to take this note and pretend to own it and present it against the estate of Dr. Corey.</p> <p>If the plaintiff had done this herself it would have been permissible to show it. It is equally so when she acts through her agent. 1 Greenl. Ev. (12th Ed.), s. 113 ; Baldwin v. Doubleday, 59 Vt. 7.</p> <p>Ames should have been permitted to testify as to what an examination with the microscope revealed.</p> <p>The court assumed that he was an expert, and from his undisputed evidence he clearly was. Hence that question cannot be raised here. 1 Greenl. Ev. (12th Ed.), s. 2; 1 Best Ev. (Wood’s Ed.) [102], s. 81.</p> <p>The court below ruled that there was no such thing as an expert in the use of the compound microscope ; that the jury should take it and look for themselves. This was error. The use of the microscope requires both skill and experience; it reveals nothing save in the hands of an expert. If not the subject of expert testimony, then practically it must cease to be an instrument of evidence. As to when the testimony of experts 'may be used, see 1 Greenl. Ev. (12rh Ed.), s. 440; 2 Best Ev. (Wood’s Ed.) [*649], s. 513 ; Union Pacific B. B. Co. v. Clopper, U. S. 26, L. Ed., p. 243; Eastern Trans. Line v. Hope, 95 H. S. 297, 24 L. Ed. 477; State v. Phair, 48 Vt. 377 ; Cram v. Cram, 33 Vt. 18 ; Sturgis v. Knap>p, 33 Vt. 531; Dean v. McLean, 48 Vt. 421 ; Masons v. Fuller, 45 Vt. 29 ; Bemis v. B. B. Co., 58 Vt. 640, 641.</p> <p>The transcript was not admissible. It did not appear that the stenographer was sworn, nor that the transcript was ordered to be reported by the presiding judge. It is only in the latter case that the statute makes it evidence. State v. Hannett, 54 Vt. 88; R. L. s. 812; Webster v. Golden, 55 Me. 165; .Reid v. Reid, 14 Pac. Rep. 490; 22 N. E. Rep. 89 ; R. L. s. 816.</p> <p>The copy of the note was properly excluded. It was not •offered as a standard for comparison, and it is doubtful whether it could properly be used as such in case it had been. Chandler v. LeBarron, 45 Me. 534; King v. Donahue, 110 Mass.</p> <p>The inventory wa's a declaration of the intestate in his own favor and inadmissible. Ellis v. Cleveland, 55 Vt. 358; Jude-vine v. Weeks, 57 Vt. 278.</p> <p>The court did not find that Ames was an expert in the use of the microscope. That fact must affirmatively appear, before this court will reverse the judgment because his testimony was excluded. Crane v. Korthfield, 33 Vt. 124; Carpenter v. Corinth, 58 Vt. 214.</p> <p>The court might in its discretion refuse to allow the putting to the witness Bridgman the general question, “ Did you testify to all the particulars of what transpired there when yon testified before the commissioners.” Counsel should have limited the inquiry to a given particular.</p> <p>The state of Dr. Corey’s health and the amount of money he had on deposit at a given time were immaterial. Strong v. Slicer, 35 Vt. 43; 3 Vt. 153; 30 Vt. 277; 48 Vt. 578; 56 Vt. 710; 58 Vt. 665; Stimpfler v. Roberts, 18 Penn, St. 233; Atwood v. Scott, 99 Mass. 177; Hilton v. Scarborough, 5 Gray, 422.</p> <p>The fact that E. T. Bridgman requested Dorman Bridgman to take and pretend to own this note was properly excluded. It ■does not appear that the plaintiff ever instructed her agent to do this, or knew that he had done so. Declarations of the agent after the execution of the note could not be given to impeach its character. Baldwin v. Doubleday, 59 Vt. 7; 52 Vt. 409; 23 Vt. 129.</p>

<p>Action on tbe case to recover the value of certain logs. Plea, the general issue. Trial by jury at the June Term, 1888, Orange County, Tylbr, J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant.</p> <p>The plaintiff alleged by his declaration that the defendants were the owners of a saw-mill situated upon the Connecticut river in the town of Norwich, and that he made a contract with them by which they promised and agreed to stretch their boom across the river, stop as they come down and saw out at a given price certain logs of the plaintiff’s, which were on the banks of the river above their mill, and which the plaintiff was to roll into the river and run down to their boom; that he did cause the logs to be run down; but that the defendants so negligently managed in the maintenance of their boom that it broke, whereby, owing to their said carelessness, the logs were lost. The evidence of the plaintiff tended to support the allegations in the declaration, and further tended to show that, he being unable to run the logs down, the defendants received the logs before they reached the boom and ran them down to the boom themselves. This the defendants denied, but claimed that what they did in running the logs down was done by them as the agents of the plaintiff and for his accommodation, and that the boom broke not through their fault, but because of an unusual rise in the river.</p> <p>The plaintiff claimed that since the defendants had contracted to take and saw out these logs, the burden was upon them to show that the logs were lost without their fault.</p> <p>Upon this point the court charged :</p> <p>“ The burden of proof would be upon the defendants to show that the logs were lost without their fault. What is the burden of proof? When one party or the other is required to make out the burden of proof to the jury, it is simply this, that in weighing the evidence, the party required to make out the burden of proof has to produce a little more evidence, at least in weight, than the other party, so that the evidence upon the point in question weighs a little more in his favor than it does in the other. So that when we talk about ‘ the burden of proof ’ it is that the party upon whom the burden rests must satisfy your mind by a little more evidence in his favor than the other party produces.”</p> <p>“ If you find that the defendants received the logs under the contract as they claim it, as the plaintiff claims it, or under the contract as they claim with the time extended, then they received them to saw into lumber; instead of so doing, the defendants reported that the logs were lost, and it is for them to show that they were lost without their fault, that is, that they were in the exercise of ordinary care in relation to the logs.”</p> <p>The other facts appear in the opinion.</p> <p>The gist of the action in this case is the negligence of the defendants; which under no circumstances will be presumed. Hence the burden of proof was upon the plaintiff. Maloney & Blakey v. Taft, 60_Yt. 571.</p> <p>The testimony of Ira Melendy had no legal tendency to show a recognition of liability by the defendants. It might as well have referred to a settlement for the amount received on the sale of the logs by the defendants to the Turners Falls Co., as to a settlement of damages for which they were liable.</p> <p>The defendants by receiving these logs under a contract with the plaintiff to saw them out, became a bailee, and if the logs were lost it was incumbent on the defendants to show them out of their hands without fault on their part. Gleason v. Fst. of Beers, 59 Vt. 581; Sto. Bailm. ss. é29 and 4é2 et seq.; Howell v. Fuller, 59 Yt. 688 ; Blakey v. Taft, 60 Yt. 571 ;, Brown v. Waterman, 10 Cush. 117; Lichtenhein v. H. H. Go., 11 Cush. 70; Fankhouser v. Wagner, 62 111. 59 ; Shearm. & Eed. Neg. s. 58 et seq.</p>

<p> When life estate will be enlarged by subsequent words of bequest into a fee. The life estate in this case construed. </p> <p>1. A bequest in the following language, “ I give, devise and bequeath the use of all my estate of every kind to my wife, Elvira D. Parks, for and during her natural life, and so much of the principal as she may see fit to use for her necessary and comfortable support, and for charitable and benevolent purposes, and contributions for worthy objects, in her own discretion, without limitation or restriction on my part, believing that she will exercise prudence and good discretion,” creates in the -wife a-life estate, not a fee.</p> <p>2. Under it, however, she has the right to possess and manage the estate herself during her lifetime, and the court will not appoint a trustee for that purpose, no special reason thereto being shown.</p> <p>3. She takes the income absolutely, and she may use of the principal for her necessary and comfortable support, having regard to her circumstances and station in life, if the income is not sufficient.</p> <p>4. But she cannot give away the principal to her friends or relatives; and the assignment of certain shares of stock to a member of her family in consideration of past kindness was declared void.</p>

<p> Eminent domain. Construction of charter. Taking property for private purposes. </p> <p>1. A water company, under a charter granting it the right to take private waters “for the extinguishment of fires, and for domestic, sanitary and other purposes,” cannot use the water of a private stream for private manufacturing purposes as against the objection of mill owners upon such stream, who are injured thereby.</p> <p>2. The words “ other purposes ” must be construed to mean other public purposes of the same character.</p> <p>3. Private property cannot be taken by virtue of the right of eminent domain for private purposes.</p>

<p>This was an appeal from the disallowance of the plaintiff’s claim by commissioners, and was heard on report of referee at the December Term, 1888, Caledonia County, Tyler, J., presiding. Judgment for the plaintiff, for the sum of $149.74 and interest. The defendant excepts.</p> <p>The plaintiff sought to recover for certain goods delivered to one Bailey. Bailey occupied a farm which, with most of the personal property upon it, belonged to the testator. It had formerly been the property of Bailey, but was about to go on mortgage, when the testator bought it and permitted Bailey to remain upon and manage it, with the understanding that its products should go first to pay the expenses, and that the balance, if any, should be paid over to the testator. The goods charged for were, in the main, supplies furnished for use about the farm. The defendant denied that Bailey had any authority to bind the testator. Bailey was, against the objection and exception of the defendant, improved as a witness. With reference to his authority the report found:</p> <p>“ If George Bailey is a competent witness to prove his agency, as raised in this case, after the death of said Thomas, then I find that said Bailey was the agent of said Thomas in buying the goods for which the plaintiff seeks to recover, and that plaintiff sold them, relying upon the credit of said Thomas, but the finding of this express agency is on the evidence of said Bailey alone.”</p> <p>Bailey had paid in, from time to time, various sums derived from the products of the farm, so that at the testator’s death there was due the plaintiff a balance of $149.75. After the testator’s death Bailey continued to occupy the farm as before, to obtain supplies from the plaintiff and to devote the proceeds of the farm to their payment. The amount of his subsequent purchases was $114.92, and of his payments, $136.78. The defendant maintained that these subsequent payments be applied to extinguish the items of the plaintiff’s account in the order in which they were contracted, in which event there would be due of the account accruing before the testator’s death but $12.97.</p> <p>The other facts appear in the opinion.</p> <p>Bailey was a competent witness. Lyth v. Bond's Estate, 40 Yt. 618.</p> <p>The agency ceased at Thomas’ death. Hence the account should be settled as of that date. Davis v. The Windsor Savings Bank, 46 Yt. 728.</p>

This was a suit in general assumpsit. Elea, the general issue. Trial by court at the March Term, Rutland County, 1888, Tyler, J., presiding. Judgment for the plaintiff. Exceptions by the defendants. The suit was begun June 22, 1883, against the defendant Haven. July 15, 1883, Haven was adjudged insolvent, and the defendant, Cramton, appointed his assignee.

This was a proceeding for the assessment of damages occasioned by the taking of the plaintiff’s land for railroad purposes by the defendant. The case was heard on the report of commissioners at the September Term, Washington County, 1888, Rowell, J., presiding. Judgment for the larger sum mentioned in the report. Exceptions by the defendant.

<p>lies gestos. Declaration, when a part of. Charge of court. Parties.</p> <p>1. When the intestate, in paying money on account of the defendant, stated to the person to whom the payment was made that a portion of the money so paid was furnished by him, such declaration is not admissible on the part of the plaintiff in a suit against the defendant, by the administrator, to recover the amount so said to have been furnished. It is not a part of the res gestae.</p> <p>2. Neither is the memorandum hook admissible, upon the margin of which the one to whom the payment was made minuted the information so conveyed to him by the intestate.</p> <p>3. Where one, at the time of taking a promissory note, tells the maker that he shall leave it with a third party for collection, such declaration is not admissible in a suit against the third person for the amount of the note.</p> <p>4. The court is only required to charge in substantial compliance with the requests of a party. Held, that there was such compliance in this case.</p> <p>5. The defendant engaged board of the intestate in his family. After he began to hoard there, the intestate formed a partnership with J., in the carrying on of his farm, where the defendant boarded. By the terms of the partnership it was stipulated that the intestate should continue to have the entire benefit from the defendant’s contract for hoard. Held, that J. need not he joined in a suit for such board.</p>

<p>This was a bill in equity, and was heard at the February Term, 1889, Orleans County, upon demurrer. Taft, Chancellor, dismissed the billow forma. The orator appeals.</p> <p>The orator has the right to redeem and may maintain a bill for that purpose. 1 Kent, 138 ; Sto. Bailm. ss. 316, 317, 318 and 315; 8 Yt. 130; Connor v. Carpenter, 28 Yt. 237; Quimby v. Hazen, 51 Yt. 111.</p> <p>That the orator began his first suit in the Probate Court is no reason why he must prosecute the second one there. 17 Yt. 729 ; 56 Yt. 60; 60 Yt. 613.</p> <p>As to the payment of the unpaid purchase money : equity having once taken jurisdiction, should administer complete relief in the premises. Dana v. Nelson, 1 Aiken, 252; Beardsley v. Knight, 10 Yt. 185 ; Hastings’ Admr. v. Perry et al., 20 Yt. 278 ; 1 Pom. Eq. 181, 231-212 ; 1 Sto. Eq. s. 61 et seq.; Holmes v. Holmes, 36 Yt. 525.</p> <p>Equity will not decree the specific performance of a contract relating to personal chattels unless there are some special cir-/ cumstances which requiie its interference. Sto. Eq. s. 717; Harnett v. Yielding, 2 Sch. & Lef. 552; Buxton v. Lister et al., 3 Atk. 385 ; 2 Swift’s Dig. 17; Cowles v. Whitman, 10 Conn. 121.</p> <p>The court of equity never orders an impossibility. Sto. Eq. s. 769 ; 2 Swift’s Dig. (22), citing 1 Meriv. 159 ; 2 Swift’s Dig.-(27), citing 1 Atk. 573.</p> <p>Where upon the face of the bill the only relief possible is a, money judgment, equity will not take jurisdiction. Barlow v. Scott, 21 N. Y. 10; Denton v. Stewart, 1 Cox, 258 ; Green-away v. Adams, 12 Yes. 395 ; Gwillim v. Stone, 11 Yes. 128; 2 Sto. Eq. 797, 798 and note 3 ; Clinanv. Coulee, 1 Sch. & Lef. 25 ; Newham v. May, 13 Price, 719 ; Kempshall v. Stone, 5-John. Ch. 191; Hatch v. Cobb, 1 John. Ch. 560; Blare v. Sutton, 3 Meriv. 237; 1 Pom. Eq. note 3 to s. 237, p. 217; Todd-¶. Gee, 17 Yes. 273.</p> <p>There was no trust relation. Hennequin v. Clews, 111 U. S. 676 ; Chapman v. Forsyth, 2 How. 202 ; Neal v. Clark, 95 U. S. 701; Stearns v. Marsh, 1 Denio, 237; McLean v„ Walker, 10 John. 171; Cortelyou v. Lansing, 2 Cain. 200.</p> <p>There was a complete remedy at law, hence the orator cannot invoke a court of equity. Smith v. Pettengill et al., 15 Yt. 82 ; Prentiss v. Barnard, 11 Yt. 135 ; Barrett v. Sargent et al., 18 Yt. 369 ; Buzzard et al. v. Houston, 119 IJ. S. 347; Blaine v. Brady, (Md.) 1 Cent. Rep. 487; Marble da Slate Go. v. A dams, 46 Vt. 503; Burkeev. Burkee, 59 Yt. 70; South-worth v. Kimball, 58 Yt. 337.</p> <p>If the orator ever had a remedy in equity, he is now barred by his laches in seeking it. Sto. Eq. PI. s. 484 ; Sherman <& Adams v. Windsor Mfg. Go., 57 Yt. 57; Goulson v. Walton et al., 9 Pet. 82; St. Johnsbury v. Paddock et al., 48 Yt. 78.</p>

Action, assumpsit. Heard on report of referees at the March Term, 1889, Royce, Oh. J., presiding. Judgment for the smaller sum named in the report. Exceptions by the plaintiff. The plaintiff was a dealer in parasols in New York, and the defendants manufacturers of doll carriages at Montpelier, Yt. The debt sued for was a balance due for supplies furnished the defendants by the plaintiff.

This was a suit in chancery, and was heard at the General Term, 1887, and remanded to the Court of Chancery for the county of Essex with the mandate which appears in the opinion. At the March term, 1888, the orator filed his amended bill to which the defendant made an amended answer. The cause was further heard at the September term, 1888, upon the amended bill, amended answer, and the master’s report.

This was an action of general assumpsit. Plea, the general issue. Trial by court at the March Term, Washington County, 1889, Royce, Oh. J., presiding. The plaintiff claimed to recover the sum of $12é with interest from Jan. 1st, 1883, it being a balance due him for cattle furnished the defendant, Frank L. Newcomb.

This was an action on the case. Plea, the general issue. Trial by jury at the June Term, Orange County, 1887, Royce, Ch. J., presiding. Verdict and judgment for the defendant. Exceptions by the plaintiff. The plaintiff alleged in his declaration that the defendant had wrongfully procured himself to be appointed guardian, and by virtue of that appointment committed certain wrongs against the property and personal rights of the plaintiff.

This was a petition for leave to enter an appeal from the judgment of the Probate Court in accepting the report of commissioners, and was brought under R. L. ss. 1426 and 1427. The petition was returnable to the December Term of the Orange County Court, 1887. The defendant filed a demurrer, which, at the June Term, 1888, Powers, J., presiding, was overruled, and he now excepts.

<p>Replevin for a horse-power and saw. Plea, the general issue and trial by court, at the March Term, 1889, of the Washington-County Court, RoycE, Ch. J., presiding. The court found the-following facts :</p> <p>In 1886, the plaintiff sold, conditionally, to one Linton, the-property in question, taking back a vendor’s lien, which was-never recorded. The property remained in the possession of Linton until April, 1888. Previously to this time the. plaintiff had' requested one Kinney to get and keep possession of the property for him, and for that purpose Kinney did then remove the property from where it was to his, Kinney’s, premises, with the assent of Linton. Kinney did not notify Linton that he had taken the property for the plaintiff, nor make any demand on him for the amount owing towards the property, nor did Linton know that it was removed to the premises of Kinney for any other purpose than to be'used by him there. The purchase price had never been paid, but it did not appear whether it was due when Kinney took possession. While the property was so on the premises of Kinney, it was attached by a creditor of Linton, and the defendant in this suit claimed to hold it in virtue of that attachment. Upon these facts the court rendered judgment for the return of the property, to which the plaintiff excepted.</p> <p>The unrecorded lien was good as between the parties, and in virtue of it the plaintiff might at any time possess himself of the property. Burnham v. Marshall, 56 Vt. 365 ; Moline Plow Bo. v. Braden, 7l la. 141; Kelsey v. Kendall, 48 Yt. 24; Bugbee v. Stevens and Bagley, 53 Yt. 389; McPhailv. Gerry, 55 Yt. 174; IBarrae?" v. Johnson, 52 la. 70 ; Applewhite et al. v. Harrell Mill Co., 5 S. W. Rep. 292.</p> <p>The plaintiff had actually taken possession by his agent, hence Ms title was complete.</p> <p>The plaintiff, to get possession of the property, must proceed - under the statute, Acts 1884, No. 93, s. 5.</p> <p>Not having so proceeded, he has no legal possession.</p>

Replevin for one cow. Plea, the general issue. Trial by jury at the September Term, 1888, Washington County Court, Tyler, J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant.

This was an action for false imprisonment, and was heard ■upon the report of a referee at the September Term, 1887, of the Essex County Court, Royoe, Ch. J., presiding. Judgment pro forma for the defendants. Exceptions by the plaintiff. The facts appear in the head-notes and opinion. The writ was fatally defective in that it contained no declaration. Churchv. Westminster, 45 Yt. 38.

<p>Trover for a fur coat, of the value of twenty dollars and a check for the amount of seventy-seven dollars. Plea, the general issue; trial by court at the December Term, 1888, Caledonia County, Tyler, J., presiding. Yerdict for defendant. Exceptions by plaintiff.</p> <p>The plaintiff claimed that the defendant procured the property in question through false and fraudulent representations as to his financial ability and without ever intending to pay for it. His testimony tended to show that on the 7th of December, 1887, the defendant came into his store in Lyndonville, picked out the coat and said he would take it provided the plaintiff would loan him money enough to make up one hundred dollars. The plaintiff finally consented to do this, and defendant proposed to give him a note on six months and secure it by chattel mortgage. Thereupon the plaintiff inquired of the- defendant if he still lived with his father. The defendant answered, no ; that he had bought a good farm in St. Johnsbury, cheap, and paid for it, and owned a good stock on it. The plaintiff claimed that upon the strength of these representations he let the defendant have the property without taking the chattel mortgage; that such representations were utterly false; that the defendant was then insolvent, and filed a petition in insolvency on the second of February next.</p> <p>The defendant maintained that the talk about the farm and stock was only incidental; not made for the purpose of inducing, nor, in fact, relied upon by the plaintiff in the transaction. For the purpose of showing' that the plaintiff did not rely upon the representations, the defendant was permitted to show by the cross-examination of the plaintiff and by his own testimony, that during the three years next preceding the date iu question, he had several times obtained credit at the plaintiff’s store, and had, on one occasion borrowed $25, and on another $50 of the plaintiff without giving him security ; and that these sums had all been paid.' The defendant was also permitted to inquire of the plaintiff what the general reputation of the defendant as to solvency was December 7th, 1887, to which the plaintiff replied that he did not know.</p> <p>The defendant owed debts amounting to about $3,000 at the time of the making of the representations in question, and was really insolvent. The St. Johnsbury farm had been paid for by his father-in-law, and the title stood in his wife. The amount and character of these debts continued substantially the same to the filing of the petition in insolvency, except that in January, 1888, he had paid to his uncle $275 and to his father-in-law, $415. The plaintiff was permitted to show the fact of ,these latter payments as tending to prove that the defendant intended to prefer them in fraud of his other creditors. In reply to that claim the defendant was allowed, against the exception of the plaintiff, to testify that in the latter part of January, 1888, his uncle had sued him for the balance due, and attached all his property, and that the insolvency proceedings were begun to dissolve that attachment.</p> <p>After verdict and before judgment the plaintiff moved to set aside the verdict as against the evidence, and as against the law ; and also moved for judgment in his favor, notwithstanding the verdict, “ upon the undisputed evidence in the case.” No evidence was set out in the record, but the bill of exceptions referred to the reporter’s transcript of the testimony of the plaintiff and defendant as to the alleged false representations, they being the only witnesses thereto. The court overruled both motions, and gave judgment for the defendant.</p> <p>Evidence as to the former loans by the plaintiff to the defendant should have been rejected. At most it only tended to show a habit or custom on’ the part of the plaintiff, which is not admissible to show what he did, or why he did'it, on a particular occasion. 1 Greenl. Ev. ss. 50, 52 ; Ghase v. Maine G. R. R., 77 Me. 62 ; Eaton v. Telegraph Go., 68 Me. 63; Gahagan v. B. <& L. R. R. Go., 83 Mass. 187; 1 Allen, 187; Tenney v. Tuttle, 88 Mass. 185; 1 Allen, 185; Bryant v. G. Vt. R. R. Go., 56 Yt. 710; Rowe v. Bird, 48 Yt. 578 ; Keith v. Taylor, 3 Yt. 153.</p> <p>There was no legal error in permitting the plaintiff to be asked what the reputation of the defendant was for solvency. Granting that the question was inadmissible, his answer that he did not know, was harmless. Carpenter v. Corinth, 58 Yt. 214.</p> <p>The plaintiff can take nothing by his motion for a judgment, non obstante.</p> <p>1st. A party claiming a verdict on the evidence, must move for it before the case is submitted to the jury. Briggs v. Burton, 44 Yt. 124; Blanchard v. Manahan, 44 Yt. 246.</p> <p>2d. Such a motion is founded upon the record alone, and can never extend beyond that. No evidence is recited in this record. Gobb v. Gowdry, 40 Yt. 27; Snow v. Gonant, 8 Yt. 301.</p> <p>The motion to set aside the verdict was addressed to the discretion of the trial court, and cannot be revised here. Newton v. Brown, 49 Yt. 16.</p>

<p>Aetion, general assumpsit. Plea, the general issue. Trial by jury at tbe June Term, Orange County, 1888, Powers, J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant.</p> <p>The plaintiff claimed to recover in respect of three items:</p> <p>1. The amount of a promissory note for $50.</p> <p>2. Two years interest on the note for $556, given for the Pratt land.</p> <p>3. For the avails of trees, wood, lumber and bark taken by the defendant from the said Pratt land and disposed of.</p> <p>No question was made as to the plaintiff’s right of recovery for the first two items. As to the third item the defendant contended that no recovery at all could be had in this form of action, and that only the “wood” could be recovered for in any action. The facts as to this item sufficiently appear in the opinion.</p> <p>The plaintiff can only recover for the third item in an action of covenant or special assumpsit. Chit. PI. 118; Young v. Preston, 4 Cranch, 239 ; Myric v. Slason, 19 Yt. 121; Camp v. Barker, 2L Yt. 469.</p> <p>No action of covenant would lie against the defendant in behalf of any one for the matters embraced in the third item. The • defendant did not execute the deed, he only accepted it. Johnson v. Muzzey, 45 Yt. 419 ; Gale v. Nixon, 6 Cow. 445 ; Hinsdale v. Humphrey, 15 Conn. 431; Trustees v. Spencer, 7 Ohio St. 11, 149;</p> <p>The wood and timber never belonged to the defendant. Legally they continued to be the property of the grantor. Equitably they belonged to the owner of the note, who was the' plaintiff. Hence the law implies a promise to pay her the money which, in equity and good conscience, was hers. Phelps v Conant, 30 Yt. 277, 284; Burnham v. Strafford, 53 Yt. 614; Putnam v. Yield, 103 Mass. 557; Fetch v. Taylor, 13 Pick. 133,137; Weston v. Baker, 12 Johns. 276, 278 ; Del. da H. C. Co. v. Bank, 4 Denio, 97; Lawrence v. Fox, 20 N. Y. 268, 278.</p> <p>Moreover, the deed expressly provides that these avails shall be applied to the payment of this note. Pike v. Brown, 12 Johns. 276, 278.</p> <p>The promise of the defendant to pay the plaintiff the amount of these avails was upon good consideration. Sampson v. Swift, lPYt. 315 ; Hall v. Huntoon, 17 Yt. 252; Dutton v. Pool, 2 Lev. 210 ; s. o. 1 Yent. 317 ; Raym. 302.</p>

Action, general assumpsit. Plea, the general issue, offset and notice that the defendant claimed an attorney’s lien. Trial by court at the March Term, Washington County, 1889, Royos, Oh. J., presiding. The court found that Heath, the intestate, was employed by Holt, the insolvent, to prosecute a suit against one Barton.

This was a complaint charging the defendant with having begotten the bastard child of the plaintiff. Trial by jury at the June Term, Bennington County, 1888, Yeazey, J., presiding. Yerdiet and judgment for the plaintiff; exceptions by the defendant. The case appears in the opinion. The court, by withdrawing the attention of the jury from the positive «testimony of the plaintiff and the claim of the defendant in reference to it, prejudiced the defendant.

This was a petition for the establishment of a public highway, and was entered at the September Term, Washington County, 1886. On November 30th following, two motions were filed, one by the petitioners and one by the defendant town, asking that said cause be discontinued without costs. These motions were overruled, and the defendant excepted. Commissioners were appointed under the statute, who laid the highway.

<p> He-heariny. Tax collector. Surety. Application of taxes paid over by collector. </p> <p>1. A referee having reported that he cannot find from the evidence before him as to a particular fact, and judgment having been entered on his report, the case will not be opened for further finding as to such fact in case of newly discovered evidence.</p> <p>2. Where a town collector uses the tax collected in one year in paying up arrearages for taxes collected in previous years, without the knowledge of the town authorities, his sureties are liable for the, amount so applied.</p> <p>3. Ferrisburgh v. Martin, 60 Yt., distinguished.</p>

Trover for the conversion of a promissory note for the sum of $200. Heard at the March Term, 1889, Washington County, Rovos, Ch. J., presiding, upon the report of a referee. Judgment for the plaintiff for nominal damages and costs. Exceptions by the defendant. This note was given for an unlawful purpose, and was voidSpalding v. Preston, 21 Yt. 15 ; 3 U. S. Dig. p. 471, s. 1383 and cases cited; Dixon v. Olmstead, 9 Yt. 316; par. Cont-380, 381, 382 ; Chit.

<p> Accord and satisfaction. Fraud. Rescission of compromise. Pleadings. </p> <p>1. The defendant obtained a compromise and discharge of a judgment. against him by falsely representing that his application for an invalid pension had been finally rejected. Held, that the misrepresentation was a material one, and that the contract of compromise was rendered voidable by the fraud.</p> <p>2. The defendant had paid to the plaintiff $100 and delivered to him a certain heifer in full discharge. Held, that the plaintiff could not maintain a suit upon the original judgment without first rescinding the contract of compromise and tendering back the heifer.</p> <p>3. The action being debt on judgment, plea, accord and satisfaction, replication, fraud, the fact that the heifer was so received in satisfaction, may be shown in defense.</p>

<p>Bill in chancery. Heard at the December Term, Orange County, 1888, upon the. pleadings and a master’s report. Yeazet, Chancellor, dismissed the bill pro forma. The oratrix appeals.</p> <p>The oratrix sought by this suit to charge certain premises with her support in virtue of a mortgage deed executed in 1853 by her brother, Eliphalet Coleman, to her then husband, Martin M.. Benedict. The condition of the mortgage was as follows :</p> <p>“ This grant is intended as a security for the fulfilment and1 performance on the part of the said party of the first part, his heirs and assigns, of an agreement this day made between him and the said party of the second part, by which the said party of the first part agrees to and with the said party of the second part, to take the wife of the said party of the second part to the home of the said party of the first part, in Yermont, and to provide for, support and maintain her, separate from the said party of the second part, and without cost or expense to the said party of the second part, and to indemnify and save harmless the said party of the second part for all claims for support, maintenance or otherwise from charge, through the wife of the said party of the second part, Althea Benedict, she being the sister of the said party of the first part, and for and during her natural life, and to save harmless the said party of the second part, his heirs and assigns, from all claims of dower or thirds by the said Althea, according to the condition of a certain bond or writing obligatory, bearing even date herewith, executed by the said Eliphalet Coleman to the said party of the second part, as a collateral security; which agreement, if duly kept and performed, will render this conveyance void. And if default shall be made in keeping or performing of the agreement above mentioned, then the party of the second part, and his assigns, are hereby authorized, pursuant to statute, to sell the premises above granted, or so much thereof'as will be necessary to satisfy the amount or damage resulting therefrom, with the costs and expenses allowed by law, and to convey said premises to the purchaser or purchasers thereof, and to account to the said party of the first part for the overplus arising from such sale, if any should remain.”</p> <p>The defendants insisted that, if the oratrix ever had any claim against the said Eliphalet Coleman or against the premises in question, it was extinguished by a settlement between the oratrix and the said Eliphalet, on or about July 2, 1864. With reference to this settlement the master found:</p> <p>“ I further find that on the 2d day of July, 1864, the said oratrix procured the services of Judge Lynde of Williamstown to aid and assist her in a settlement with her brother, the said Eliphalet Coleman, and 1 find that they did settle, but it does not fully appear just what was settled.</p> <p>“ She had been living with and working for her brother, and making her home with him for about eleven years. Her son had lived with and worked for her brother more or less. She ■had received money from him to buy things for herself and for her son, but just how much all this was, or just what items went into the settlement, did not fully appear; but from all the circumstances and evidence, together with her acts and sayings afterwards, I find the fact that the settlement included all the balance due her at that time for her work and for the money that had been received from the said Martin M. Benedict, by the said Eliphalet Coleman, at the time the said oratrix and the said Benedict agreed to live separate and apart.</p> <p>“ The amount found her due at the time of settlement, as-reckoned up by Judge Lynde, was a little more than $800, and whatever sum there was over $800 the said Eliphalet paid her at the time, and then and there executed to her a promissory note-for the said $800, in words and figures following :</p> <p>“ ‘Williamstown, July 2d, 1864.</p> <p>£For value received I promise to pay Althea Coleman or bearer eight hundred dollars on demand and interest.</p> <p>(Signed) Eliphalet Coleman.’ ”</p> <p>The remaining facts appear in the opinion.</p> <p>The deed of Eliphalet Coleman could not affect the claim of the oratrix against these lands. Blaisdell v. Stevens, 16 Yt.. 179 ; Pownal v. Myers, 16 Yt. 408.</p> <p>The oratrix was not a party to this mortgage nor was it for her benefit. It was merely given to secure the husband against, future liability for her support. Hence she has no interest in it. 2 Jones Mort., s. 1371; Sch. II. & W., s. 473 et seq. ; Duprer Trus. v. Rein, 56 How. Pr. 228 ; Barron v. Barron et al., 24-Yt. 375, 398 et seq.</p> <p>At most the oratrix had only a lien on the premises to secure-the payment of the $400. That was paid by the note given im the settlement of 1864, and her lien thereby extinguished. Hutchins et al. v. Olcutt, 4 Yt. 549 ; Oollamer v. Langdon et al., 29 Yt. 32 ; Wait v. Brewster, 31 Yt. 516.</p> <p>She lias been guilty of such laches in suffering, without objection, all these different conveyances, and in permitting her claim; to slumber for twenty-eight years, that she cannot now assert it. Ang. Lim. 373 et seq. ; also pp. 20, 21; Bowman et al. v. Withen et al., 1 How. (U. S.) 189 ; Phillips Judge v. Rogers et al., 12 Met. 405.</p>

This was an action of covenant. Trial by jury at the December Term, 1888, Caledonia County, Tyler, J., presiding. Ycr•dict and judgment for the defendant. The plaintiff excepts. The case appears in the opinion. It did not follow from the fact that the plaintiff’s brother had authority to collect the royalty that he could vary the terms of payment, and the court erred in so instructing the jury.

Rill in chancery, brought by the oratrix to establish her title to a certain parcel of land. Heard on bill, answer and master’s report at the September Term, 1889. Powers, Chancellor*, dismissed the bill with costs. The oratrix appeals. The nature of the case sufficiently appears in the opinion.

<p> Statute of limitations. Premium note. </p> <p>1. A right of action accrues when the plaintiff first can sue for and recover a demand, and the statute of limitations begins to run from that date.</p> <p>2. Where the charter of an insurance company provides that the directors may, in default of the payment of any assessment upon a premium note, sue for and recover the whole amount of such note, the statute of limitations will begin to run against the whole note from the time when an assessment becomes due.</p>

This was an appeal from a decree of the Probate Court, admitting to probate the will of Madison S. Manley. Trial by jury at the March Term, 1889, Ross, J., presiding. Exceptions by the contestant. It appeared that the contestant had applied to the Probate Court for the appointment of a guardian for the testator, on the ground that he was an insane person; and that this application had been, after a full hearing, denied, -Dec. 10, 1887.

<p> Tender. Payment after suit begun. Costs. </p> <p>1. A payment after suit begun and entered in court will not discharge tbe entire liability of tbe defendant unless it covers tbe taxable costs which must necessarily accrue at the next term in becoming non-suit, as well as those already accrued.</p> <p>2. An offer of a certain sum made by the defendant to the plaintiffs’ attorney, after the first term of court, and accepted by him, is not a tender at common law nor under the statute; it is simply a payment pro tanto.</p>

This was an action on the case for back flowage. The plaintiff elected, to go to trial’ upon the second count only of his■ declaration. Plea, the general issue; trial by jury, at the March Term, 1888, Ross, J., presiding. The mill of the defendant was situated just below that of the plaintiff.

This was an action in assumpsit for the amount of a promis- . sory note given for the balance due on a lot of carriages sold by the plaintiffs to the defendant. Plea, the general issue, with notice that the defendant would rely, on trial, upon certain misrepresentations and the breach of certain warranties made in and about the sale of the carriages. Trial by jury, at the September Term, 1889, Powers, J., presiding. Yerdiet and judgment for the plaintiffs.

This was an action of assumpsit upon a policy of fire insurance issued by the defendant to the Poultney Slate Works. Plea, the general issue, with notice of special matter. Trial by jury, at the March Term, 1889, Ross, L, presiding. The court directed a verdict for plaintiff in the sum of $1,250 without interest. Both parties except. The plaintiff sued as the assignee of the Slate Works Company.

Action, assumpsit. Plea, the general issue. Trial by jury, at the September Term, 1889, Powers, J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant. The plaintiff sued for the price of certain apples sold by her testator to the defendant. The defendant claimed that the quality of the apples was not according to the contract, and offered to so testify himself.

<p>The case appears in the opinion.</p> <p>This case involves the attempt to swap defendants on the road' between the commencement of suit and final judgment.</p> <p>The debt was against original district No. 6. By the union of old No. 6 and No. 15 a new district was created, and this is-the defendant sued. It is now sought to take judgment against original No. 6. Greenback v. Boutwell, 43 Yt. 207 ; Barnes-v. Ovitt, 47 Yt. 316; R. L. s. 557; O'Shaughnessy v. Baxter,. 121 Mass. 515 ; Gorman's Case, 144 Mass. 190.</p> <p>The defendant could not take advantage of this defect until the trial upon the merits. It is not a case of misnomer.. O'Shaughnessy v. Baxter, 121 Mass. 515 ; Górmanos (Jase, 124-Mass. 190.</p> <p>It is conceded that original No. 6 is liable for this debt, and that it may be sued, its organization being preserved by statute for that purpose, notwithstanding its union with No. 15. It is further «conceded that the writ was properly served on the clerk of original No. 6. Why, then, may not judgment be taken against it?</p>

<p>Action on the case for negligence of the defendant in locating and using its “ stone crusher ” near the highway, whereby the plaintiffs’ horse became frightened and the plaintiff wife was-thrown from her carriage and injured.</p> <p>Flea, the general issue. Trial by jury, at the September-Term, 1889, Powers, J., presiding. At the conclusion of the evidence the defendant moved for a verdict, which motion was overruled. Yerdict and judgment for the plaintiff. Exceptions by the defendant.</p> <p>The stone crusher was located outside the village limits, with-the consent of a majority of the selectmen of the town, by the-village trustees, and was being operated, under their direction, in preparing material with which to construct and repair the streets of the village. The remaining facts appear in the opinion.</p> <p>Under the charter of the village of Rutland the trustees are, in the management of its highways, the agents of the town. Hence, if any action will lie it must be against the town. Randon v. Rutland, 41 Yt. 681; Parker v. Rutland, 56 Yt. 224 ; Campbell v. Fair Haven, 54 Yt. 224.</p> <p>The trustees were discharging their duties as public officers, and the village is not responsible for their acts in that capacity. 2 Dill. ss. 974, 975, 976, 979 and cases cited ; Tone v. Mayor, etc., 70 N. Y. 157, 459; Barnes v. Bis. of Col., 91 U. S. 540 ; Hill v. Boston, 122 Mass. 344, 372; Carrington v. St. Louis, 4 West. Rep. 681; Cushing v. Hew Bedford, 125 Mass. 526 ; Mead v. Hew Haven, 40 Conn. 72 ; Maximilian v. H. 7., 62 N. Y. 160; Manners v. Haverhill, 135 Mass. 165 ; Bindley v. Salem, 137 Mass. 171; Benton v. T. B. Hospital, 140 Mass. 13.</p> <p>There can be no corporate liability when the act complained of is not authorized by the charter. 2 Dill. 969 ; Mayor of Albany v. Cunliff, 2 Com. (N. Y.) 165 ; Smith v. Rochester, 76 N. Y. 506; Cuyler v. Rochester, 12 Wend. 165 ; H. 7. Plumber Co. v. Brooklyn, 71 N. Y. 580.</p> <p>No authority existed for the purchase and use of a stone crusher. 1 Dill. 89; Baxters. Turnpike Co., 22 Yt. 114; Fetch v. Oilman, 22 Yt. 33 ; 2 Shear. & Red. Reg. ss. 139,140.</p> <p>The building and repairing of highways are governmental in their character and no action will lie for the neglect of the officers of a municipality in this respect. Weller v. Burlington, 60 Vt. 28 ; Welsh v. Rutland, 56 Yt. 228; Baxter v. Turnpike Co., 22 Yt. 114 ; Parker v. Rutland, 56 Yt. 224 ; 2 Dill, s. 965; Hill v. Boston, 122 Mass. 344 and note; Cushing v. Hew Bedford, 125 Mass. 526 ; Smith v. Washington, 20 How. (U. S.) 135, 148.</p> <p>There was no nuisance. A nuisance cannot be predicated upon a thing which the law authorizes. Transportation Co. v. Chicago, 99 U. S. 635 ; 2 Hill Torts, ss. 34, 493 ; 3 Black. Com. 5, 216 ; Hill v. Boston, 122 Mass. 344 and cases cited.</p> <p>A defective highway is not a nuisance. Otherwise towns would be liable at common law for defects in their highways, and they are not. 2 Dill. s. 962 ; Weller v. Burlington, 60 Yt. 28 ; Parker v Rutland, 56 Yt. 224; Hyde r. Jamaica, 27 Yt. 443.</p> <p>The village legally voted to purchase a stone crusher, and in pursuance of that vote the trustees bought it. Hence, its purchase and use were authorized. Campbell v. Fair Raven, 54 Yt. 224.</p> <p>Even if the village were the mere agent of the town in caring for its streets, it would none the less be responsible for the acts of its servants. Hewell v. Wright, 3 Allen, 166 ; Griffith v. Tollett, 20 Barb. 630 ; Tearney v. Smith, 86 111. 391.</p> <p>The village is not such agent. Campbell v. Fair Haven, 54 Yt. 336 ; Parker v. Rutland, 56 Yt. 224.</p> <p>The location and use of the stone crusher in the highway was a nuisance, for the maintenance of which a municipal coi’poration as well as an individual is liable. Thayer v. Boston, 19 Rick. 511; Wood Nuis. 388 ; Little v. Madison, 42 Wis. 543 ; Wilson v. Hew Bedford, 108 Mass. 261; Wood Nuis. 338, 839, 841; Harper v. Milwaukee, 30 Wis. 365 ; Hawks v. Charlemont, 107 Mass. 414; Lacour v Mayor of H. W., 3 Duer, 406.</p> <p>When the defendant went outside its corporate limits and used this machine to manufacture material for its streets, it derived from its use a special advantage, and is liable for the default of its agents in that respect. Winn v. Rutland, 52 Yt. 480 ; Wilkins v. Rutland, 61 Yt. 336 ; Moulton v. Scarborough, 71 Me. 267 ; Barton v. Syracuse, 36 N. Y. 54; Sullivan v. LLolyoke, 135 Mass. 273.</p>

This was a complaint based upon R. L. s. 3843, charging the respondent with permitting a building owned by him to be used .as a place of public resort, where intoxicating liquor was unlawfully furnished. It was heard at the September Term, 1889, Powers, J., presiding, upon an agreed statement of facts. The respondent was adjudged guilty pro forma, and excepted. The facts appear in the opinion.

This was an action of trespass for entering upon the plaintiff’s land and changing the course of a stream flowing thereon. The case was referred and was heard upon the referee’s report, at the • September Term, 1889, Powers, ,J., presiding. Judgment for defendant. The plaintiff excepts.

This was an information charging the respondent with fn rnishing intoxicating liquor. Trial by jury, at the September Term,. 1889, Rowers, J., presiding. Terdict, guilty. The evidence on the part of the prosecution tended to show that the respondent “treated one Cain. The liquor was furnished without compensation to and was drunk by Cain in a room in the village of Rutland, back of what had formerly been a store, but which was then empty.

<p>Information for unlawful fishing in Lake Bomoseen. Heard -at the March Term, 1889, Eoss, J., presiding, upon the demurrer of the State to the respondent’s special plea, setting forth that he took the fish with hook and line. Demurrer sustained. 'The respondent excepts.</p> <p>Nos. 73 and 215 of the Acts of 1881 are in pari materia, ■and should be construed together. Territory v. Wingfield, 15 Pa. Eep. 139; Highgate v. State, 59 Yt. 39; Potter’s Dwarris, 189; State v. Babcock, 33 N. W. Eep. 217.</p> <p>In the construction of statutes the true rule is to inquire, in •view of all the circumstances, what the intention of the Legislature was. Ryegate v. Wardsboro, 30 Yt. 716; Bish. Stat. •Or., ss. 82, 86.</p>

<p> Perjury in the making of chattel mortgage. Necessary averment in indictment. </p> <p>1. An indictment for perjury in the making of a chattel mortgage must directly aver that the respondent did make such a mortgage. It is not .enough to allege that he intended to defraud his creditors “by giving a mortgage, etc.”</p> <p>2. It must be averred that the mortgagee subscribed and took the oath. Otherwise the mortgage might be merely a common law mortgage, to which no oath is necessary and hence not required by law.</p> <p>3. If the count alleges that the respondent made the mortgage with intent to defraud his creditors, it must further appear that the mortgaged property was not exempt from attachment; inasmuch as his creditors could not be defrauded by a mortgage of personal property which they could not reach.</p>

<p>This was an appeal to the County Court from the action of the selectmen of the town of Sheldon in re-surveying a highway-under R. L. s. 2920. Commissioners were appointed in the-County Court, and the case was heard on their report at the September Term, 1889, Ttlbr, J., presiding. The report of the-commissioners was accepted and judgment was given thereon that the road was re-surveyed and established, according to John Webster’s plan and survey of August 28, 1889. Exceptions by Draper & Bush.</p> <p>The highway in controversy was the street running westerly through Sheldon village from the end of the bridge across. Black Creek.</p> <p>The commissioners reported that the bridge had been erected and in use since 1801, and that for more than seventy years a highway had been in use, running in the same general direction as the present one, but that there was no record of any laying out or survey of the same. The petitioners and the town of Sheldon claimed that it was a part of the county road laid out by a committee about 1803 under an act of the Legislature of 1802, but with reference to this claim the commissioners said r. “We find from all the evidence in the case, that said highway was not surveyed or laid out by such committee, and aie unable to find that said highway has ever been surveyed.”</p> <p>The commissioners further found that for the past fifty years-the southern boundary of said street had been well defined by monuments along its entire length to the bridge; that going-easterly towards the bridge the northern boundary had been for many years well defined up to a point near the store of oneDurkee, and that the distance between the said bounds westerly from Durkee’s store was sixty-one feet. From Durkee’s store-to the end of the bridge there had been no well defined boundary, the land adjoining the highway at that point .having been part of a mill-yard, and used as such to a line about fifty feetr distant from the south bound of the highway. In 1883 Draper & Rush had erected a store on this land, of which the south end> was but fifty feet from the south line of the street; and the-controversy was whether the highway should be laid of the same-width between Durkee’s store and the bridge that it was west of' Durkee’s store, in which event about eleven feet of the store of Draper & Bush would be in the highway, or whether it should be gradually narrowed after leaving the Durkee store until at a. point opposite the store of Draper & Bush it was only fifty feet wide. The commissioners reported that if they had the legal right to lay out, or alter and survey the highway as in accordance with their judgment the public good, and the necessity and convenience of individuals required, they would establish it according to the last alternative, as appeared by Webster’s survey of January 17, 1889 ; if they had not such right, and there arose a presumption of an original survey of a highway sixty-one-feet wide and a record made which had been lost, then they found such to be its metes and bounds as appeared by Webster’s-survey dated August 28, 1889.</p> <p>Draper & Bush entered by attorney on the docket, and appeared both by attorney and in person before the commissioners^-</p> <p>R. L. s. 2920 is as follows:</p> <p>“ If the survey of a highway has not been properly recorded,,, or the record preserved, or if its terminations and boundaries cannot be ascertained, the selectmen may re-survey the same, ancC make a record thereof in the town clerk’s office ; but fences or ^buildings erected or continued tbereon for more than fifteen .years shall not be removed or the lands enclosed taken for the highway, without compensation as in other cases of altering ¡highways.”</p> <p>No. 15, Acts of 1886, provides:</p> <p>“ A petition to the County Court from the findings and award •of the selectmen, acting under section two thousand nine hundred and twenty of the Revised Laws, shall be allowed to any person ■owning or interested in lands through which said highway is re-surveyed, and the same proceedings shall be had as is provided in chapter one hundred and forty of the Revised Laws, in case •of laying out or altering any highway.”</p> <p>Draper & Bush, being parties in interest, had the right to be 'heard in the County Court, and take exceptions to this court. Gray v. Middletown and Poultney, 56 Yt. 53; Sharon v. iStrafford, 56 Yt. 421 ; French et al. v. Barre, 58 Yt. 567.</p> <p>The court had no right to establish the highway, the commis■sioners having found that neither the public good, nor the convenience nor the necessity of individuals required it. Woodstock v. Gallup, 28 Yt. 590 ; Shattuck v. Waterville and Bakersfield, 27 V"t. 600.</p> <p>It is further insisted that the commissioners had the authority to lay out or alter this highway according to their judgment, «nd that the highway ought to have been established according "to their recommendation. Olosson v. Hamblets, 27 Yt. 728 ; ¡R. L. s. 2920.</p> <p>The County Court has not professed to lay out a highway, but «imply to ascertain for record the survey of one already existing. No exceptions lie in such case. 24 Wend. 493; 2 John. 424.</p> <p>If any exception lies to the Supreme Court in this case, and ~we insist there does not, Draper & Bush are not parties entitled '•thereto. They had acquired no right which entitled them to .may notice or consideration in this proceeding. Hogaboon v. Highgate, 55 Yt. 412.</p> <p>Tinder E. L. s. 2920 it was not the duty of the commissioners, to alter the old highway or lay out a new one, but to ascertain' and establish the boundaries of the old one, even though it had never been surveyed. This was what the judgment of the County Court did; and judgment cannot be reversed unless some substantial injustice has been done the excepting party. Paine v~ Lester, 22 Yt. 44 ; Londonderry v. Peru, 45 Yt. 424 ; Gray v. Middletown, 56 Yt. 53 ; French v. Barre, 58 Yt. 567.</p>

Petition to foreclose a mortgage, in which William Back, B. E. Rugg, and O. W. Witters were originally made defendants. Held: and was entitled to the benefit of the security pro tanto; that is, each was entitled to an undivided one-half interest in the land. This was what Rugg acquired by-taking the quit-claim deed, that being tantamount to a foreclosure of his notes.

<p>Chattel mortgage, void for indefiniteness in description.</p> <p>1. While the description of the thing mortgaged in a chattel mortgage need not be sufficiently definite to enable one to identify the property without inquiry, it must indicate the line of inquiry and furnish the basis for identification.</p> <p>2. A mortgage of “ two cows,” or “five cows,” the mortgagor having at the time at least six cows, or of “two cows delivered to me by Edwin Strait,” the mortgagor then Raving five cows received from Strait, is void for indefiniteness.</p>

<p>This was an appeal to the County Court from an order of the Probate Court for the District of Franklin, denying a petition to vacate a decree of said Probate Court admitting to probate the will of Alfred Ladd. The petition was dated February 22, 2887.</p> <p>In the County Court the defendant filed a motion to dismiss: ■the appeal, and the same was dismissed, pro forma, at the ApriF 'Term, 1888, Yeazey, J., presiding. The petitioners except. The; «case appears in the opinion.</p> <p>The Probate Court has power to revise and vacate its decrees.' Smith v. Bix, 9 Yt. 210 ;.Bix v. Smith, 8 Yt. 365 Adams ■v. Adams, 21 Yt. 162; French v. Winsor, 21 Yt. 107; Stone V. Learsby, 28 Yt. 720; Odam v. Thompson, 2 Hawks (N.> C.) 21.</p> <p>It may grant the re-probate of a will. Odam v. Thompson, ~supra ; Congdon v. Gongdon, 59 Yt. 597.</p> <p>The decree of the Probate Court admitting the will to probate cannot be disturbed. Vt. Baptist State Convention. vLadd's Fstate, 59 Yt. 5 ; 3 Redfield Wills, 29, 58 and 61; R„ JL. s. 2019; Williams Executors, 519, 618.</p>

This was an action in ejectment, and was heard upon the report of a referee at the September Term, 1889, Tyler, J., presiding. Judgment for the defendant. Exceptions by the plaintiffs. The plaintiffs sought to recover the possession of two parcels, ■one containing lOfW acres and the other 5§ acres. Upon the Trial before the referee they abandoned all claim to the former parcel.

<p>This was an action on the case under R. L. s. 3833 by the-plaintiff against the defendant for having unlawfully furnished to her husband liquor occasioning his intoxication and consequent death. Plea, the general issue. Trial by jury at the-April Term, 1889, Rowell, J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant.</p> <p>Those exceptions which were insisted upon by counsel appear in the opinion.</p> <p>The fact that defendant knew of the intemperate habits of the deceased and had previously refused to furnish him liquor should have been admitted'. It made it more probable that he would not sell to him at the time of the alleged sale. Armstrong v. Hoble, 55 Yt. 428 ; Reed v. Reed, 56 Yt. 492; Bedel v. Eoss, 50 Yt. 94; Hold-ridge v. Holdridge, 53 Yt. 546.</p> <p>Richards’ declarations were not part of the res gestee, and not admissible. 1 Greenl. Ev. 124 ; Bouvier’s Law Diet., res gestee," Hutting v. Page, 4 Gray, 584; Gárleton v. Patterson, 9 Foster (N. H.), 580 ; Lynde v. Tyngsboro, 9 Cush. 86 and 401; Waldele v. IT. T. C. c& H. R. R. R. Co., 95 N. Y. 274; 47 Am. Dec. 41; Hamilton v. State, 36 Ind. 280 ; 10 Am. Rep. note to page 28 and cases cited; 71 N. Y. 118 ; 74 Mo. 553 ; ■52 Yt. 19 L.</p> <p>No inference that liquor was refused on this occasion could ■be drawn from the fact that it had been at some previous time. AiJcen v. Kenerson, 58 Vt. 665 ; Harris v. Howard, 56 Yt. 695; Walworth v. Baron, 54 Yt. 677; Roberts’ Dig. 275, p. 42 ; 69 Me. 178; ParJcer v. Portland Pub. Co., 69 Me. 178 ; Hubbard v. A. <& K R. R. Co., 89 Me. 506 ; Aldrich v. Pelham, 1 Gray, 510 ; Kidder v. Dunstable, 11 Gray, 342 ; Collins v. Dorchester, 6 Cush. 396 ; Qahagan v. B. <S¡ L. R. R. ■Co., 1 Allen, 187; 4 Md. 242; 110 Mass. 134.</p>

<p>This was an action of general assumpsit for the amount of a legacy given by the will of Susan B. Bellows in trust to St. Luke’s Church. Pleas, the general issue, special pleas in bar, and notice of special matter. Trial by court at the April Term, 1889, Rowell, J., presiding. Judgment for the plaintiff for the amount of the legacy and interest from the date of the plaintifi’s writ. The court also granted a certified execution. Exceptions by the defendant.</p> <p>The court found that the defendant had, as trustee, received the legacy under the will, and had not paid any part of it over to the plaintiff, who had been duly appointed trustee by the Probate Court in place of the defendant, removed. The defendant contended that the Probate Court had no power to remove Mm; that if it had such power, it did not properly exercise it, in that he was not notified to show cause why he should not be removed, and that if properly removed, he alone had the right to name his successor under the terms of the will. There was no evidence of a demand by the plaintiff. The facts appear in the opinion.</p> <p>R. L. s. 2288 does not apply to a case like this. It cannot be said that a trustee “ declines a trust ” which he has already accepted and upon the execution of which he has entered simply because he refuses or neglects to comply with some rule of the Probate Court. This section refers to a case where a bond is required previous to undertaking the trust.</p> <p>The Probate Court can only remove a trustee after due notice to him. In this instance there was no notice whatever. R. L. is. 2290.</p> <p>It can only appoint a successor after notice to “persons interested.” R. L. s. 2291. It has been held that this trustee ■was a person interested. In re Bellows Est., 60 Yt. 224.</p> <p>Here the Probate Court could not appoint a successor with notice, for the will provides that the trustee shall name his own successor.</p> <p>The proceedings of the Probate Court, not being within the statute are void. Robinson v. Robinson, 1. D. Chip. 357; Chase v. Hathaway, 14 Mass. 222 ; Shumway v. Shumway,2 Yt. 339 ; Holden v. Scanlin, 30 Yt. 177; Robert’s Dig. 564; Hendricks w. Cleveland, 2 Yt. 392 ; Probate Court v. Winch, 57 Yt. 282.</p> <p>The defendant could not be sued for the trust fund until an order of the Probate Court had determined the amount for •which he was liable. Perry Tr. s. 288 ; Pierce v. Pierce, 22 Meav. 248.</p> <p>There was no evidence of a demand,'and without one no action could be maintained. Hinsdell v. White, 34 Yt. 564; Bishop v. Brown, 51 Yt. 332 ; Stoddard v. Chapin, 15 Yt. 443; Brainerd v. Ch. Trt. Co., 29 Yt. 157.</p> <p>The Probate Court had power to require a bond, owing to a ¡subsequent change in the circumstances of the trustee. R. L. s. 2284.</p> <p>In accordance with this power, that court did order the •defendant to furnish such bond on or before a certain day, and die neglected to do so. Thereby his office as trustee became vacant. R. L. s. 2288.</p> <p>There was no occasion for any removal by the court; by neglecting to give the bond when required he had ceased to be-trustee.</p> <p>The decree of the Probate Court removing the defendant and appointing the plaintiff cannot be collaterally attacked. Gollard •v. Grane, Brayt. 18 ; Spar/iawic v. Buel, 9 Yt. 41; Probate iJudge v. Fillmore, 1 JD. Chip. 420; .Lawrence v. Englesby, 24 Yt. 42 ; Diggs v. Abbott, 27 Yt. 580; Abbott v. Ooburn, 28 Yt. 663. ,</p> <p>No demand was necessary. R. L. s. 2292.</p>

<p>This was an action for false imprisonment. Plea, the general issue, with notice of special matter in justification. Heard at the September Term, 1889, Tyler, J., presiding, upon the report of a referee and exceptions of the plaintiff thereto. Judgment for the defendant. The plaintiff excepts.</p> <p>The plaintiff was arrested in the town of Swanton by the defendant, who justified the arrest as fish warden for the town of Water bury. The referee found that defendant was duly appointed by the selectmen of that town and did, in making the arrest in question, act under the authority of that appointment. The arrest was made without warrant.</p> <p>The plaintiff claimed that when arrested by the defendant he was not violating the fish laws. The referee reported the following facts bearing upon this question :</p> <p>“ On the 27th day of March, 1884, and for some time before that certain parties were engaged in fishing with seines in Lake-Champlain near Hog Island. The fish commissioner, Mr. Herbert Brainerd, requested the defendant and said Tuttle to go there in pursuance of their duties as fish wardens. Said Atherton and Tuttle employed Jerome Dumas, Lewis Wood, Joseph Barton to assist them in the discharge of their duties as fish wardens, and on the morning of the 27th day of March said Atherton and Tuttle by virtue of their commission and Dumas, Barton and Wood as their assistants took the train for Swan ton, and on arrival there got a team and were driven to the west shore of Hog Island on Lake Champlain, arriving there about ten o’clock in the forenoon. They drove along down to a red fishing shanty, a little over a half mile northerly of the fishing grounds. Two seines were set for fishing at the fishing grounds and fishermen were engaged in fishing with the seines. The-officers stopped at the door of the shanty and made some inquiry of some person there if they could get on to the ice there, and were informed that they couid not. On this shanty there was a sign or writing as follows: “ All dead beats and Burlington pimps thrown out here.” The party in the wagon then drove along southerly and over the Portland and Ogdensburg railroad crossing, when they saw men going south in the highway, and some on the ice and some men across lots from the east. The party in the wagon continued along to where there were three barrels on the shore of the lake with fish in them, quite a good many. These fish were wall-eyed pike, and some perch, and perhaps some suckers. A basket stood near by with some fish in it. Some of these fish had the appearance of being caught that morning. A little southerly and westerly out in the lake about three or four rods a seine was set under the ice, and about five or six rods northerly of this another seine was set in the lake under the ice by means of holes cut in the ice. The defendant and his men went out on the ice between where the two seines were located, and saw the men at each of the seines drawing them out of the water.</p> <p>“ There were three men at this time at each of the seines drawing them out of the water; one of the men at the south seine hauling it out of the water was the plaintiff. Another man at the south seine helping to haul it out was Einhard' Sheets, a brother of the plaintiff; at the north seine a man by the name of Coutier was helping haul out the seine. The plaintiff was at the red shanty when the defendant and his men came-along in the morning to the fishing ground, and about the time-the officers left the shanty the plaintiff and some others went down to the fishing grounds from the shanty, arriving at the-fishing grounds about the same time the defendant and his party arrived there.”</p> <p>Thereupon the defendant and his assistants endeavored to» take possession of the seines. The fishermen resisted. There was a sharp scuffle and some threatenening talk on both sides. The plaintiff was present, but it did not appear that he assaulted! the officers or took part in the discussion. Finally the officers-got possession of the nets. They then turned their attention to* the fishermen. The report continues :</p> <p>“ The defendant then requested Dumas to come with him. The defendant saw two men down on the ice that he thought he wanted; the men were running north on the ice. The-defendant and Dumas followed them, taking the highway while the men were on the ice. These men were Nathaniel Sheets,, the plaintiff, and Joseph Coutier. These men went on the ice till they got to the P. & O. railroad; they then went over the railroad down to the shanty. When they went over the railroad they were out of sight of the defendant and Dumas, but at no-other time; they were about ten rods ahead of the defendant and Dumas. The defendant and Dumas went down in front of the red shanty and there arrested the plaintiff and Coutier and there handcuffed them together and went back to the fishing ground with them where the team was.”</p> <p>With reference to what was done with the plaintiff by the; defendant after the arrest the report finds:</p> <p>“ The party arrived at Swanton village about one o’clock in the afternoon. On their arrival at Swanton the prisoners were informed that the officer’s had telephoned or telegraphed to St. Albans for the State’s Attorney to come to Swanton at once to-try the prisoners then at Swanton, and that the officers were-informed by the State’s Attorney that he could not come that, day and not till the next day on account of engagements. The •officers then inquired of all the prisoners if they would as soon .go to St. Albans to be tried that afternoon as to wait over at ■Swanton, and they all said they would, and no objection being made the officers with the prisoners started for St. Albans. 'They arrived at St. Albans at four or five o’clock in the afternoon, and very soon after their arrival deputy sheriff W. M. Ladd ^arrested the plaintiff, Richard Sheets and Ooutior on complaints made by the State’s Attorney, and the defendant and his men had aio further charge of the prisoners.”</p> <p>1. The authority of the fish warden is confined to the town for which he is appointed.</p> <p>2. The defendant could not arrest without a warrant. The statute does not give the right and it cannot be inferred. Phillips v. Padden, 125 Mass. 198 : Drew v. Ililliker, 56 Yt. 641; Territory v. Baca, 2 N. M. 183; Webster v. People, 14 111. 365.</p> <p>3. If the defendant might arrest without process for a violation of the fish law, he could only do so when the offender was ■taken in the very act. He’ could not arrest at another place -after the.commission of the crime. The plaintiff was arrested a half a mile from where the alleged violation was done. Phillips v. Fadden, 125 Mass. 198, Bright v. Patton, 8 Cent. L. J. "711; Commonwealth v. Casey, 12 Cush. 246 ; Commonwealth v. McLaughlin, 12 Cush. 615 ; 1 Bisb. Crim. Law, ss. 181, 183 ; Potts v. Potts, 13 Western L. J. 147; Cook v. Blether cote, 6 •Car. & Pa. 666 ; Phillips v. Trull, 11 John. Rep. 430.</p> <p>The defendant was not violating the law, hence the justification fails. It is immaterial whether the defendant supposed he was or not. Phillips v. Fadden, 125 Mass. 198 ; Dolley v. Mix, 3 Wend. 350.</p> <p>It was the defendant’s duty under the statute to prosecute the ¿plaintiff. Not having dono so he is hable ab initio. Phillips v. Padden, 125 Mass. 198 ; Brooks v. Stinson, 108 Mass. 52 ; Tubbs v. Turkey, 3 Cush. 438; Pepineau v. Bacon, 110 Mass. 319.</p> <p>The statute conferred jurisdiction on the defendant throughout this State. Laws of 1882, No. 117, s. 1.</p> <p>The referee has found that the plaintiff was violating the provisions of R. L., chap. 170 or an amendment thereto. Hence his arrest was authorized by the statute.</p> <p>The defendant did all he could to prosecute the plaintiff in-behalf of the public. He was not bound to become a private-prosecutor.</p>

<p> Harmless error. Inadmissible testimony not considered. </p> <p>1. Where the court, in trying a question of fact, receives inadmissible testimony, the error is cured, if that tribunal in its report of the facts found certifies that it did not consider such testimony. And the same would be true of a commissioner or referee.</p> <p>:2. If there is any evidence tending to support the finding of the court upon a question of fact, such finding will be conclusive. Meld, that there was such evidence in this case.</p>

<p> Slander. Parties. Husband and wife. Pleadings. </p> <p>1. A husband should not be joined with his wife as a co-plaintiff in an action by the wife for slanderous words spoken of the wife since the passage of No. 140, Acts 1884, relating to the rights of married women.</p> <p>2. Nor should he be joined as a co-defendant in an action against the wife for such words, unless they were spoken by his authority and direction.</p> <p>3. The declaration must allege such authority and direction or it will be demurrable.</p>

<p> Mortgage. Agreement to sell and convey. When time is of the? essence of such contract. </p> <p>1. C. mortgaged to B. and subsequently to S. B. foreclosed bis mortgage,, making S. a party. S. allowed tbe decree to become absolute under an arrangement that be should subsequently receive a deed of tbe premises upon paying it, as be did. While in possession be endorsed and\ delivered tbe 0. notes to the oratrix, but did not assign the mortgage. Still later be conveyed to tbe defendant, who bad no notice of tbe oratrix’s interest. Held, that the oratrix could not assert her mortgage as,against the defendant.</p> <p>2. S. having tbe right to redeem certain premises, procured tbe defendant. 'to furnish a portion of the money for that purpose. Thereupon the-premises were deeded to tbe defendant, who signed a written contract, agreeing to sell and convey the premises to tbe oratrix upon tbe tender of a certain sum to the defendant “ at any time prior to tbe first day of' January, 1888,” and providing that unless such tender was made on. or before said first day of January, 1888, said agreement should be absolutely null and void. Held, that time was of the essence of the contract, .and that unless the oratrix made tbe tender within its life, she had non-equity in the premises.</p>

<p>Audita querela to set aside a judgment obtained by the defendant against the plaintiff as principal defendant and one Hilliker, as trustee, before John Carle, justice of the peace. Heard at the September Term, 1889, Tyler, J., presiding, upon an agreed statement of facts. Judgment for the defendant. The plaintiff excepts.</p> <p>The suit in which was obtained the judgment here sought to be set aside was as to a contract, by which Hogle was to deliver to Mott certain hay, for the breach of which both parties claimed •damages. Mott had paid Hogle $100 upon this contract, which .he claimed to recover and which was embraced in the judgment .here attacked. After Mott had obtained this judgment before the justice, Hogle sued him in New York. In that suit he, Hogle, claimed certain damages, and credited the amount of this $100 paid him by Mott in reduction of those damages. The referee found the damages and reduced them by the $100; and Hogle had judgment for the balance. He now Insists that, inasmuch as the same $100 is embraced in the judgment in question, Mott has twice received the benefit of it, and that therefore this judgment should be set aside. The other facts appear in the opinion.</p> <p>R. L. ss. 1402-4 read as follows:</p> <p>“1402. "When an action is commenced, an absent defendant, residing or being without the State so that process cannot be-served on him, may be notified of the pendency of such action and given opportunity to make defence therein, by the delivery to such person personally, at any place without the State, of copies of the process and pleading, and of an order for such deliverystating the time and place when and where he is required to appear, all under the hand of the clerk of the court, or of a judge or justice thereof; and county clerks may issue such orders and' certify such copies in or out of term time, and before and after th& entry of said action in court.”</p> <p>“1403.- The delivery of such copies may be made by a person not a party, and the proof thereof shall be by affidavit, stating the time and place of delivery, the age of the defendant, or that he is above twenty-one years of age, and the reason why he knew the person to whom the copies were delivered to be the person mentioned therein as a party.”</p> <p>“1404. Upon such notice so given to a party at least twenty-days before the time when he is required to appear, the same proceedings may be had, so far as to affect the title to or the right to the possession of goods, chattels, rights, credits, land, tenements, or hereditaments in the State, as if such process or pleadings had been served on a party in the State.”</p> <p>The defendant in the original suit was anon-resident. Norecognizance for review was entered into. Hence the judgment should be set aside. R. L. ss. 1406,1407; Alexander v. Abbott, 21 Yt. 476 ; Marvin v. Wilkins, 1 Aik. 107; Whitney v. Silver, 22 Yt634; Kidder v. Hadley,25 Yt. 544; Hollins v. Clement, 49 Yt. 98; Folsom v. Conner, 49 Yt. 4; Hawley v. Mead, 52 Yt. 343.</p> <p>R. L. ss. 1102-1 applies only to County Courts. As to any •court the statute is in contravention of the 11th amendment and void. Bell v. Sleeper, 23 Yt. 573 ; ,Q nimby v. Hazen, 51 Yt. 132.</p> <p>The service in the case was personal service under the statute, hence no recognizance was necessary.</p> <p>The judgment was in the nature of a judgment in rem, and ■the statute authorizing such service was not repugnant to the 14th amendment. Cool. Con. Lim., 103-101; Matter of the Em,pire Gity Bank, 18 N, Y. 215 ; Rockwell v. Hearing, 35 N. Y. 311.</p>

<p>Petition for appeal under B. L. s. 1126. Demurrer.</p> <p>1. A demurrer to a petition to the County Court for leave to enter an appeal from the Prohate Court upon the ground that the petitioner has been deprived of the right of appeal by fraud, accident, or mistake, admits the facts stated in the petition to be true, and the judgment of the County Court overruling the demurrer and granting the appeal will not be reversed, if fraud, accident, or mistake could be inferred from the facts stated.</p> <p>2. The parties were brother and sister. Their mother lived with the petitioner in New York. At her death she left a will in favor of the petitioner, which was presented for probate in that State. The petitionee, who resided in Yermont, opposed the probate of the will there, presented a small claim against the estate, and procured the hearing on the probate to be delayed. Meantime he caused administration to be taken out in this State, and got allowed a lai’ge and fx'audulent claim in his favor. When the statutory limit for an appeal had expired here, he withdrew his opposition in New York. Held, that the County Court might in its discretion on these facts allow axx appeal.</p> <p>3. The petition need not aver that the administrator declined to petition for an appeal. It is only necessary under R. L. s. 1426 that the petitioner be deprived of his right of appeal by fraud, accident or mistake.</p>

<p> Joinder of husband and wife as plaintiffs. </p> <p>1. A husband may, since the passage of the Married Woman’s Act of 1884, join as a co-plaintiff in a suit upon a promissory note payable to the wife, in which he has an interest by virtue of the marital relation.</p> <p>2. The declaration alleged that the note was given to the wife, then covert, before the passage of that act. Held, not demurrable for misjoinder; for it would not be presumed that the consideration for the note was such as renders it irreducible to the possession of the husband.</p> <p>■i). Nor will the fact that he has joined in the suit, instead of suing alone, be a waiver of his interest in the note, since he may still appropriate the judgment.</p>

<p>This was an action on the case for damages sustained through the insufficiency of a bridge maintained at the joint expense of the four defendant towns. Trial by court at the September Term, 1889, Powers, J., presiding. Judgment for the plaintiff. The defendants except.</p> <p>The bridge connected the towns of Williston and Essex. The notice required by statute was served upon these two towns, but no notice was given the other two defendants. The remaining facts appear in the opinion.</p> <p>The injury did not occur upon the bridge, but upon the approach to the bridge. Powers v. WoodstocJc, 38 Yt. éé ¡ Bardwell c& Huntington v. Jamaica, 15 Yt. 138.</p> <p>The notice should have been served upon all the towns. Not having been served upon Underhill and Jericho no action can be maintained against them, and inasmuch as the liability is strictly joint, to be borne in certain definite proportions, no suit can be maintained against any unless against all. Gf. S. c. 25, ss. 41, 42 ; B. L. s. 3111; Acts 1882, No. 13, s. 4; Brown v. West Haven and Fair Haven, 47 Yt. 386 ; Whitcomb v. Rood, 20 Yt. 49 ; Wendall v. Hammond, 40 Yt. 644 ; Hoskins v. Burnett, 41 Yt. 702 ; Webster v. Orne, 45 Yt. 40.</p> <p>The order of the County Court fixed the limits of the bridge. which these defendants were to make and repair, and for the sufficiency of which they are jointly responsible. Those limits they could not contract by any arrangement among themselves, and within those limits the defect complained of occurred. State v. Williston, 31 Yt. 153.</p> <p>The notice was to those towns in which the bridge was situated. This is what the statute requires. Acts 1882, No. 13, s. 4.</p>

<p> Motion to dismiss; when used. Averments in special plea. School district order. </p> <p>1. Amotion to dismiss is in the nature of a plea in abatement, and is not used for the purpose of testing the right of recovery upon its merits, but to impeach the correctness of the proceedings with a view to abating the action.</p> <p>-% Defects in the declaration, not connected with the writ or its service, cannot be reached by such a motion.</p> <p>, -'3. Specifications are not, in our practice, a part of the declaration for the purpose of subsequent pleading.</p> <p>-4. The plaintiff sued for the amount of a school district order. The defendant pleaded specially that C. was elected the collector of the defendant district; that as such collector he arrested and imprisoned S. upon a tax warrant and employed W. to assist him in so doing; that subsequently S. brought suit and recovered judgment against C. and W. for false imprisonment, and that this order was given W. for his expenses in the defense of that suit; further that C. “was not-an inhabitant of nor a legal voter in said school district, and was not by, law eligible to the office of collector, and was in no way legally authorized to serve said warrant.” Held, on demurrer, that the plea was defective. For (a) it did not allege that the suit of S. against C. and W. was for being imprisoned on the tax warrant, (h) Neither did it negative the authority of C., for the mere statement that he was not authorized was not sufficient without giving the reasons why, and the only reason given, that he was not an inhabitant of the district, was not conclusive since, if town collector, he might be a collector of the district although not a resident.</p>

Exceptions from the City Court of the city of Burlington,. Peck, «I. The complaint, based upon R. L. s. 3840, charged' the respondent with having re-opened, without first giving the required bond, a room which had been abated as a nuisance. The respondent having been convicted, moved in arrest of sentence for the insufficiency of the complaint. Motion overruled.

<p> Motion to dismiss new count. Wrongful act resulting in death. Necessary averments. </p> <p>1. In hearing a motion to dismiss a new count, the court is not, as in case of a motion to dismiss the suit itself, confined to the record, hut may and should receive extrinsic evidence to determine whether the cause of action is the same.</p> <p>t2. Seld, that from an inspection of the record in this case the cause of action in the new declaration was apparently identical with that in the original declaration, and that at all events the court should have heard evidence dehors the record upon that question. Not having done so, its action dismissing the new count is reversed.</p> <p>Dictum: In a suit by an administrator for the neglect of the defendant resulting in the death of his intestate, the declaration should allege either that the intestate left next of kin, in which event it would be a suit for their benefit, or that he lived a time after the injury, when-it might be for the benefit of his estate.</p>

Action on the case for a false warranty in the sale of a-black mare. Plea, the general issue. Trial by jury at the September Term, 1889, Munson, J., presiding. Yerdict and judgment for the plaintiffs. Exceptions by the defendant. The facts sufficiently appear in the opinion. There is a variance between the proof and the declaration.

This was the complaint of a town grand juror, which came by appeal into the County Court, and was there heard on demurrer at the April Term, 1889, Powers, J., presiding. The demurrer was overruled and the respondent excepted. The point raised and decided appears in the opinion. The word “'found” in the statute is material and constitutes the gist of the offense, which is something more than merely being intoxicated.

<p> Exceptions from, the Burlington City Court; not to he filed toith county cleric. Statute of limitations. Verbdl promise. </p> <p>1. Exceptions from the City Court of Burlington need not be filed with the clerk of the County Court within thirty days from the rendition of judgment in the City Court. It is not decided when, if at all, they should be filed with the clerk of the City Court.</p> <p>2. A verbal promise made within six years to pay a debt otherwise barred by the statute of limitations is effectual to remove the statute bar, if the evidence of such verbal promise is not objected to by the defendant.</p> <p>3. It is not determined whether, in case the evidence proving tho verbal promise is legally admissible for another purpose, objection must be taken to the effect of it as proving such promise at the time of its admission.</p>

This was a petition by Hamilton S. Peck, judge of the City 'Court of the city of Burlington, praying for a writ of mandamus to compel E. Henry Powell, State Auditor, to allow and pay the petitioner certain fees. The petitionee claimed that the fees in question did not of right belong to the petitioner, and that, if they did, mandamus was not the proper remedy.

This was an appeal from the judgment of the Probate Court ordering dower and a homestead to be set out from the estate of B. B. Hatch, and was tried by court at the September Term, 1888, Ross, J., presiding. ■ Judgment of the Probate Court affirmed. Exceptions by the appellant. B. B. Hatch deceased in 1872. The widow and her minor children continued to occupy the premises until 1877 before she took any steps to have a homestead or dower set out to her.

Exceptions from the City Court of the city of Burlington,. Peck, J. The action was trover for the conversion of a buggy wagon. Pleas, the general issue, and justification under a writ of replevin. Judgment for the plaintiff. The defendant excepts. The case appears in the opinion. The defendant in good faith took the wagon as the agent of the wife, who claimed to own it. If she did own it, the defendant might, as her agent, lawfully take it.

General assumpsit. Heard on the report of a referee at the September Term, 1889, Munson, J., presiding. Judgment for the defendant. The plaintiff excepts. The plaintiff had employed the defendant for two successive winters to cut and draw logs for him at an agreed price per thousand, and had paid him various sums from time to time.

Book account. Heard at the September Term, 1889, Munson, J., presiding, upon the report of an auditor, exceptions of tlie defendants thereto, and a motion upon the part of the •defendants to recommit. The court, gpi'o forma, overruled the motion and exceptions and gave judgment for the plaintiff in the sum of $1,654.89. The defendants except. The account of the plaintiff was for legal services and disbursements between December, 18S5, and July, 1889.

Assumpsit to recover taxes paid under protest. Plea, the general issue. Trial by jury, at the September Term, 1889, Rowell, J., presiding. Verdict and judgment for the plaintiff. Exceptions by the defendant. The facts appear in the opinion. The action of the listers and board of civil authority was judicial and final. Bartlett v. Wilson, 59 Vt. 23; Fulham v. Howe, 60 Vt. 351.

Replevin for one cow. Trial by court at the September Term, 1889, Rowell, J., presiding, Judgment for the plaintiff. The defendant excepts. The opinion states the case. R. L. S.1Í84 only applies to cases where the execution creditor obtains possession of the mortgaged property in invitum. In case the creditor buys and owns the mortgage debt he may satisfy his mortgage from whatever portion of the mortgaged property he elects.

<p>This was an indictment for an assault with intent to commit a rape. Plea, not guilty. Trial by jury, at the December Term, 1889, Tyler, J., presiding. Yerdiet, guilty.</p> <p>The indictment charged that the respondent “ with force and arms in and upon the body of one Anna Thompson, a female person of the age of thirteen years or more, and then and there being, an assault did make with intent violently and feloniously -to commit upon her, the said Anna Thompson, a rape.”</p> <p>The evidence of the respondent tended to show that he was intoxicated at the time of the alleged assault and had no recollection whatever of the circumstances attending it or the assault itself.</p> <p>In view of this claim the respondent requested the court to instruct the jury as follows:</p> <p>“ 3. Intoxication should be considered by the jury as affecting the respondent’s mental condition with reference to his capability to form the intent to commit rape.</p> <p>“ 4. The respondent cannot be convicted of the intent to commit rape if he was too drunk to entertain the intent, unless he formed such intent before he became intoxicated.</p> <p>“ 5. If the respondent blundered into the presence of the prosecutrix through a drunken mistake, under such circumstances as to show an entire absence of reason or such as would indicate the inability to form any definite purpose to commit rape, then he cannot be convicted of the intention to commit rape.</p> <p>“ 6. The general rule that intoxication is no excuse for crime should not be applied by the jury to the facts and circumstances in this case, to prejudice the right of the respondent to an acquittal as to the charge of an attempt to commit rape.</p> <p>“ 7. The nature and essence of the crime of an assault with intent to commit rape depend largely upon the peculiar condition of the respondent’s mind at the time of the alleged assault, and it is proper for the jury to consider whether or not the respondent was in fact intoxicated at the time, as affecting his condition of mind; and if the jury should find that the intoxication of the respondent was of such a degree that his reasoning faculties, his power of discrimination between right and wrong, was lost, those facts would afford very strong ground for presuming that the respondent had no criminal intention to do anything more than he actually did do, viz., that he had no criminal intent to commit rape.</p> <p>“ 8. If the jury find that the respondent was intoxicated to such an extent as to seriously affect his condition of mind, impair his reasoning faculties and powers of discrimination between right and wrong, so as to raise a reasonable doubt in their minds as to whether the respondent really intended to commit a rape, then they should acquit the respondent as to that part of the indictment charging such an intent.”</p> <p>The court declined to charge as requested and did instruct the jury in the following terms:</p> <p>“ If the respondent became voluntarily intoxicated, so that when he was at Mrs. Thompson’s house he did not know what he was doing, and while there he committed acts upon her which would have constituted an assault with intent to commit rape upon her if he had been sober, his intoxication would afford him no excuse; so that if you find that the respondent was intoxicated when these alleged acts were committed, if you find they were committed as claimed by the State, his intoxication does not bear upon the question of criminal intent and his intent must be gathered from the acts that you find he committed.”</p> <p>The respondent moved in arrest of judgment for the insufficiency of the indictment. The motion was overruled and the respondent excepted.</p> <p>The intoxication was material upon the question of intent. Cline v. State, 1 N. E. Rep. 22; Commonwealth v. Hagenlock, 3 N. E. Rep. 36 ; 5 Crim. Law Mag. 113, 909; 2 id. 721; 4 id. 282 ; 1 Bish. Crim. Law, s. 408.</p> <p>The indictment should specify more fully what crime the respondent attempted to commit; otherwise it is uncertain whether he attempted to commit a rape at common law, or under R. L. s. 4110, or under s. 1, No. 63, Acts of 1882. State v. Benjamin,, 49 Yt. 103; 1 Wharton Crim. Law, s. 372 (b), s. 401; State v. Cook, 38 Yt. 439 ; State v. Downer et al., 8 Yt. 424 ; State v. Higgins, 53 Yt. 191; State v. Jones, 33 Yt. 445 ; 1 Bish. Crim. Fro. ss. 329, 335, 419, 610, 629 ; 5 Crim. Law Mag. 609; 2 Bish. Crim. Fro. s. 953; 5 Crim. Law Mag. 752; 8 Crim. Law Mag. 368 ; Titus v. State, 9 Crim. Law Mag. 354; 6 Crim. Law Mag. 629 ; 10 Crim. Law, 461; 11 Crim. Law Mag. 845; 4 Crim. Law Mag. 141, 307; 1 Arch. Crim. FI. and Fr. 265 ; and note citing State v. Gray, 3 Stew. 123; Com. v. Waters, 7 Dana, 29.</p> <p>The fact that it follows the words of the statute does not help it. 1 Arch. Crim. FI. and Pr. 268; Lamberton v. State, 11 Ohio, 282.</p> <p>The word “ ravish ” must have been used. 1 Arch. 999; 2 Stark. Crim. FI. 409; 3 Chit. Crim. Law, 815; 4 Black. Com. 307; Davis v. State, 42 Tex. 226 ; 1 Arch. 1000.</p> <p>The indictment fully informs the respondent of the charge and is sufficient. State v. Benjamin, 49 Yt. 103; 1 Bish. Crim. Pro. s. 505.</p> <p>. The crime charged is statutory. Hence the indictment may follow the language of the statute, if every fact necessary to constitute the offense is thereby charged or reasonably implied. State v. Higgins, 53 Yt. 199; State v. Mills, 60 Yt. 90; State v. Dana, 59 Yt. 614 ; State v. Daly, 41 Yt. 564 ; State v. Clark, 44 Yt. 636; State v. Jones, 33 Yt. 444; State v. Cook, 38 Yt. 437.</p> <p>Voluntary intoxication is no excuse for crime. State v. Tatro, 50 Yt. 491; 1 Bisli. Grim. Law, ss. 397, 400; People v. Rogers, 18 N. Y. 9; State v. Edwards, 11 Mo. 312 ; Ingalls v. State, 48 "Wis. 547.</p>

Petition that the petitionee be adjudged in contempt for the non-payment of $1,000, permanent alimony decreed the petitioner at a previous term. Heard upon demurrer at the June Term, 1889, Rowell, J., presiding. The demurrer was overruled and the defendant adjudged in contempt, to which he , excepted. There is ample authority for affirming the action - of the County Court.

<p>This was a bill in chancery praying IN- n injunction to restrain the defendants from maintaining and using their barn on the ground that the same was a nuisance to the petitioners. The case was heard upon bill, answer, master’s report and exceptions thereto, at the December Term, 1889. Tyler, Chancellor, sustained the exceptions of the defendants and dismissed the bill. The orators appeal.</p> <p>The defendants excepted for that the master on the trial before him received evidence of the use and condition of the barn subsequent to the service of the orators’ bill; and that the evidence of the orators did not show an existing nuisance at the date of such service.</p> <p>The bill was served April 24:, 1888.</p> <p>The orators were husband and wife, the wife being the owner of the house which they occupied. The defendants were also husband and wife, the wife owning and the husband using the barn in question, which was a horse barn and situated about thirty feet from the dwelling of the orators. With reference to the use of the barn and its effects upon the orators, the master reported as follows:</p> <p>“ The defendant Ezra is a fish peddler, and makes trips to different points, often returning late at night. He had, during the winter of 1887-8, two horses, and a part of the time, three. He commenced keeping his horses in this barn about the middle of November, and they were kept there when not in use, until spring. No other stock was kept in the barn. During the first few weeks the manure was thrown from both stable doors, and what was thrown from the north door was used in banking the barn. After this it was all thrown from the south door, and remained where it was thrown until spring. The pile so made was at the south-east corner of the barn, close to the division line between the parties. A portion of the accumulation was removed early in April. On the 24th day of that month, the day the bill was served, the pile contained about two two-horse wagon loads. The last of the pile was removed on the 9th and 10th days of May. During the summer, the defendant Ezra had two horses, but one was kept in the pasture a part of the time. In the summer the manure was generally taken by wheelbarrow and put in a heap some distance back in the lot. It was sometimes taken directly from the stable, but was at other times suffered to remain at the stable door two or three days. On one occasion in the summer or early fall, it was left there until there was an accumulation of a one-horse wagon load. Later in the fall there was another accumulation somewhat larger, which was there on the 10th day of October, when the defendants were served with notice in proceedings for contempt. During the past winter the defendant Ezra has kept but one horse. The management of the manure was substantially the same as during the previous winter. At the time of the hearing there was no manure at the barn, but it was still used as a horse barn, and was in the same location as when the bill was brought. The horses of the defendant Ezra were fed upon hay and grain. Shavings were used for bedding. The manure was occasionally left in the barn until the second day. There was nothing in the character or management of the accumulations outside the barn to make them more offensive than such accumulations usually are. The winter of 1887-8 was a steady cold one, with frequent falls of snow. I do not see how the manure can have produced any specially disagreeable results before the first warm days of spring. As the weather became warm, and previous to the date of the bill, the heap became unpleasant. The prevailing wind at this point is from the west or south-west. With the wind in this direction, the odor was noticeable at the house and in the yards of the petitioners, and was sometimes quite offensive. Under some conditions of the weather, during the hot season, the smell from the inside of the barn, when there was no accumulation at thé door, was perceptible at the house. Elies were attracted to the vicinity by the barn and its surroundings, and were more numerous at the petitioners’ house than they would otherwise have been.</p> <p>“ Several physicians and chemists were used as expert witnesses. I am unable to find from the evidence before me that such an accumulation, so situated, would cause any particular disease at this house. But I find from the evidence that the smell arising from such accumulations is very offensive to the majority of people, and that in the case of a person so affected, a continuance of it would in a greater or less degree unfavorably affect the appetite and general health.</p> <p>“ The petitioners are people about fifty years of age. The. wife is a hard working Woman, and earns money by laundry work. She is a person of an unusually nervous organization, and more susceptible to disturbance by noise than people in general. The horses of the defendant Ezra stamped and pawed more or less in the night, and the petitioner Harriet was disturbed thereby, and her rest somewhat broken. I do not find that the horses made more noise than is usually made by horses standing in a barn.</p> <p>“ The petitioner Harriet testified that the smell of this manure was very offensive to her, and made her sick at the stomach. On the 16th day of April, 1888,' a physician was called to see her, who found her in bed, and in a feverish and nervous condition, and complaining of poor appetite and loss of sleep. He saw her once or twice, and afterwards sent her medicine by her husband. I find that this illness was caused in part by the accumulation of manure above described.”</p> <p>The orators had obtained a temporary injunction, which was as follows:</p> <p>“ Upon reading the foregoing petition in chancery, praying for an order restraining the use of a certain barn therein described as a horse barn 'while remaining in its present location, and for the removal of the same to such distance from the dwelling house of the petitioners as may be hereafter determined by the court. And for the removal of any and all manure and filth in and on the ground about said barn, to such distance from the dwelling house of the petitioners as may be determined by the court, it is ordered that said defendants, Margaret Hulett and Ezra M. Hulett, and each of them, refrain from using said harn in any manner creating a nuisance to the orators, until the further order of this court.”</p> <p>Evidence of the condition of things after the service of the bill was properly received to show the continuance of the nuisance. Truelock v. Mertie (Iowa), 34 N. W. 307.</p> <p>Upon the facts found by the master the barn as used was a nuisance. Gatlin v. Valentine, 9 Paige, 575; Baltimore do Potomac B. B. Go. v. First Baptist Ghurch, 108 U. S. 317; Adams v. Michael, 17 Am. Rep. 516 ; Saville v. Kilner, 26 L. T. (N. S.) 277; Slate v. Passon, 37 Me. 361; Slate v. Master, 35 Iowa; Babcock v. FT. J. Stock Yards Go., 20 N. J. Eq. 296; Burclett v. Swenson, 17 Tex. 499; Kirk-man v. Kandy, 11 Hump. 406 ; Cokes v. Birge, 10 Ga. 336; Aldrich v. Howard, 8 R, I. 246; Draperys Sperry, 4 1. T. (N. S.) 365 ; Pickard v. Collins, 23 Barb. 444; Hanson v. Brooks, 20 Ga. 537; Dunsmore v. By. Co., 33 N. W. Rep. 456; Butterfield v. Klaber, 52 Ilow. (N. Y.) 255 ; Davidson v. Isham, 1 Stock (N. J.) 186; Brill v. Flagler, 23; Wend. 354; Bishop v. Banks, 33 Conn. 121; Dargan v. Waddell, 9 Ired. (N. C.) 244 ; Bado Ray L. R. 8 Ch. App. Cas. 467.</p> <p>The defendants cannot be required to answer anything which arose subsequent to the service of the bill. Such facts can only be brought in by supplemental proceedings. Hurd and Sewall v. Everett, 1 Fai. Ch. 124; Downer v. Wilson, 33 Yt. 1; Blaisdell v. Stevens, 16 Yt. 179 ; Birmingham et al. v. Besan, 77 Me. 494.</p> <p>If the orators had no cause of action at the time of bringing the original bill they cannot recover in this suit. Birmingham et al. v. Besan, supra; Pinch v. Anthony, 10 Allen, 470 ; Milner v. Milner, 2 Edw. 114; Candler v. Pettit, 1 Paige, 168 ; Jones • v. Davenport, (N. J.) 17 Atl. Eep. 570 ; Bannon v. Comegys, (Md.) 16 Atl. Eep. 129.</p> <p>They had not. The barn, as then constructed and used was not a nuisance. Curtis v. Winslow, 38 Vt. 690.</p>

<p>This was an action in assumpsit and was heard at the December Term, 1889, Tart, J., presiding, upon the defendant’s demurrer to the declaration. The declaration was adjudged sufficient. The defendant excepted, and the exceptions were certified to the Supreme Court before final judgment.</p> <p>The declaration contained a general count for money expended and also this special count ;</p> <p>“ Whereas, to wit, on the 26th day of May, A. D. 1888, at said Woodstock, one John A. Edwards, who was then and there a transient person in said Woodstock, was committed to and confined in the Windsor county jail, located at said Woodstock, and was then and there poor and not of sufficient ability to defray the expense of his support and was in need of relief; and E. D. Harpin, the jailer of said jail, then and there represented the situation and need as aforesaid of said Edwards to Horace F. Sherwin, who was then and there the overseer of tlm poor of said Woodstock, and applied to said Sherwin as such overseer to provide for said Edwards’ support and relief in said jail; and said Edwards remained so confined in said jail continuously from said 25th day of May until the 26th day of December, A. D. 1888, on 'which last day said Edwards was released and discharged from said jail; and plaintiff avers that its said overseer did on the 25th day of May, 1888, and continuously thereafter until said 26 th day of December, 1888, provide for said Edwards’ support in said jail, as by law he is required to do, and paid out in and about the same for necessary support and relief of said Edwards one hundred and nineteen dollars.</p> <p>“ And plaintiff avers that on said 25th day of May, A. D. 1888, and continuously thereafter until and including said December 26th, A. D. 1888, said Edwards had his legal residence in said Hancock, and that he was not, during any of said time, and is not now of sufficient ability to defray the expense of his support aforesaid, and that by law said town of Hancock was obliged to provide for his maintenance and support during all said time. And plaintiff avers that its said overseer, to wit, on the 4th day of June, A. D. 1888, and more than sixty days before the commencement of this action, gave notice to the then overseer of the poor of said defendant town, of the situation and need of said Edwards, as aforesaid, and said last named overseer neglected to provide for said Edwards then and there and has ever since neglected to so provide.</p> <p>“ And plaintiff farther avers that since said Edwards was' discharged from said jail as aforesaid, and more than sixty days before the commencement of this action, to wit, on the day of January, A. D. 3 889, it demanded of said defendant town' the said amount of money by plaintiff’s said overseer laid out and expended as aforesaid, but defendant has neglected and refused to pay the same, or any part thereof, whereby an action, has accrued to plaintiff by statute in such case made and provided, to have and recover of defendant said moneys so by it paid, yet defendant, though requested, has never paid the same or any part thereof.”</p> <p>R. L. s. 2818 reads as follows:</p> <p>“ If a transient person is suddenly taken sick or lame, or is otherwise disabled and confined at any house, in any town, or is committed to jail and is in need of relief, the person, at whose house he is, or the jailer, as the case may be, shall be at the expense of relieving and supporting such person until he repre’ sents his situation to the overseer of the poor of the town, after which the overseer shall provide for his support; and if the overseer neglects to provide for such support, the person so supporting him may recover therefor ; and if such person is not of sufficient ability to defray the expense of his support, with the other contingent charges, the town may recover the same by an action for money laid out and expended, from the town in which such person is legally settled.”</p> <p>Section 4, No. 42, Acts of 1886, is as follows :</p> <p>“ Section two thousand eight hundred and eighteen is amended by striking out the words “ is legally settled ; ” at the end of. the section, and inserting in lieu thereof the word “ resides.” And said section two thousand eight hundred and eighteen is further amended by adding thereto the following words :</p> <p>“ But no action shall be commenced by the town furnishing support for such person, until the overseer of the poor of such town shall have given notice of the condition of such person to the overseer of the poor of the town of such person’s residence, and such last named overseer shall have neglected to provide for such person for sixty days after such notice. And for every subsequent similar neglect for sixty days, an action may be brought, and upon a recovery by the plaintiff therein, the court may in its discretion allow the plaintiff double costs.”</p> <p>This remedy sought to be enforced is that given by the statute. Hence the form of action must be the one designated by the statute, and that is assumpsit. 1 Chit. PI. 112, 143 ; Gedney v. Tewksbury, 3 Mass. 307; Smith v. Drew, 5 Mass. 514; 'Smith v. Woodman, 8 Poster, 520 ; Danville v. Putney, 6 Yt. 512; Pawlet v. Sandyate, 19 Yt. 621; Howe v. Royalton, 32 Yt. 415.</p> <p>The first count is not in assumpsit and is bad. It contains no suggestion of a promise. 1 Chit. PI. 301, 302 ; Grould PL 48.</p> <p>The second count is bad because it does not allege the performance of the condition precedent imposed by the statute. Middlebury v. Subbardton, 1 D. Chip. 205; 1 Chit. PL 327 • 334, 106, 368; Londonderry v. Windham, 2 Yt. 349.</p> <p>The misjoinder is fatal even though such count is good in Itself. 1 Chit. Bl. 199-202; Templeton v. Clogston, 59 Yt. ■628 ; Corbett v. Packington, 6 B. & C. 268.</p> <p>If any one count is good the demurrer must be overruled, ■unless there is a misjoinder. 1 Chit. Bl. 696 ; Gould Pl. 172, s. 6; 1 Saun. Pl. 497, 498; 6 Com. Dig. Pl. Q. 3.</p> <p>Either general or special assumpsit will lie or the two may be joined. Danville v. Putney, 6 Yt. 512; Pawlet v. Sandgate, 19 Yt. 621.</p> <p>The first count is in assumpsit. The law will imply the prom-' ise if the necessary facts are alleged. Starkey v. Cheeseman, 1 Salic. 128, ease 10 ; Wegersloffe v. Keene, 1 Stra. 228; Griffith v. Roxbrough, 2 M. and W. 734; 1 Chit. Pl. 308.</p>

<p>General assumpsit. Plea, tbe general issue. Tiial by jury ■At the May Term, 1889, Yeazey, J., presiding. Yerdiet and judgment for tlie plaintiff. Exceptions by the defendant.</p> <p>The defendant excepted to the action of the court below in .admitting some and excluding other testimony,, the nature of •which sufficiently appears in the opinion.</p> <p>It further excepted to the action of the court in denying its-motion to set aside the verdict.</p> <p>The plaintiff claimed to recover for her services in caring foiher infirm pauper mother from August, 1882, until April 25,, 1887. The father and mother of the plaintiff were infirm and poor, and were assisted by the defendant town to a greater órlese extent from 1871. During this time they kept house and. the plaintiff lived with them. For eleven years she received-nothing and claimed nothing. She testified that in 1882 she-sent her father to Mr. Adams, who was the overseer of the poor of the defendant, with word that if she staid longer with her parents she must be paid for it; that subsequently, in August of the same year, she saw and had a conversation with Mr..</p> <p>Adams about the same matter, in the course of which he promised to pay her a reasonable sum. It was upon this contract' with the overseer that she claimed tó recover. Adams denied?that he ever employed the plaintiff or agreed to pay her anything. The defendant moved to set aside the verdict for that, there was no evidence of any contract with the plaintiff.</p> <p>The testimony of the plaintiff as to this conversation with. Adams was a's follows :</p> <p>“ Q. What year was it that your father went up and carriedi this message?</p> <p>“A. 1882 ; middle of August.</p> <p>“ Q. Now, if in that same year you had any conversation,’ with Adams in which you talked about the same matter ?</p> <p>“ A. Yes, sir. I was coming up from the village and Mr.. Adams overtook me, and he asked mo to ride; and he was-speaking about my having a hard time, and wanted to know how my mother got along. I told him that I was having a hard time and I was getting discouraged. And he said, you braid, don’t-you, and earn nearly $3.00 a week ? I told him I did, but 1 couldn’t follow it by sitting up half the night. And he says, you earn good wages, and the town is willing to pay you a. reasonable sum. He did not say he was; he said the town, was.”</p> <p>The plaintiff must show an express promise. The right of action is given by statute, and no presumption arises against the town. Mower v. Leicester, 9 Mass. 250; Chidson v. Canton, 17 Conn. 175 ; Reed v. Belfast, 20 Me. 216 ; Aldrich v. Londonderry, 5 Yt. Ill; Worcester v. Bollard, 38 Yt. 60 ; Buck v. Worcester, 18 Yt. 2.</p> <p>There is no evidence tending to show that Adams promised the plaintiff that the town would pay her.</p> <p>The declarations of Adams were properly shown. He was the agent of the town and these declarations were within the scope of his agency. Barney v. Clark, 19 Pick; 220; Morse v. Conn. River R. R., 72 Mass. (6 Gray) 150 ;' Gatt v. Dins-more, 111 Mass. 151; Lane v. Boston'dc Albany R. R., 112 Mass. 155 ; McGenness v. Adriatic Mills, 116 Mass. 177.</p> <p>Moreover it is competent to show that a person intended to do a thing as rendering it more probable that he afterwards did it. Hart v. Taylor, 22 Yt. 556 ; Commonwealth v. Blair, 126 Mass. 10 ; Commonwealth v. B. F. Burlington, 136 Mass. 135 ; Commonwealth v. Bradford, 126 Mass. 12.</p> <p>The law as to implied contracts is well established, and it applies tó municipal corporations as well as individuals. Worcester v. Ballard, 38 Yt. 60; Wolcott v. Wolcott, 19 Yt. 37; Sheldon v. Tairfax, 21 Yt. 102.</p> <p>There was some evidence of a contract. Its weight was entirely for the jury. Bloss v. Kittridge, 5 Yt. 28; Stearns v. Howe, 12 Yt. 577 ; Cummings et al. v. Fullam, 13 Yt. 159 ; Mosseaux v. Brigham, 19 Yt. 157 ; Rutland db Burlington R. R. Co. v. Admr. of Wales, 21 Yt. 299.</p> <p>A motion to set aside a verdict is addressed to the discretion of the trial court. The action of that court cannot be revised here. Wamist Rower Co. v. Lowell db Andover R. R., 130 Mass. 155 ; Commonwealth v. Mansur, 131 Mass. 189 ; Grans-tra v. Burgess, 111 Mass. 7 ; Houghton v. Slack, 10 Yt. 520 ; Chase v. Davis, 7 Yt. 176 ; Myers v. Brownell, 2 Aiken, 107 ; Minkler v. Minkler, 16 Vt. 193; "Wheatley v. Waldo, 36 Yt., 237; Sheldon v. Perkins, 37 Yt. 550 ; Newton v. Brown et al., 49 Yt. 16.</p>

<p>When non-expert witness may give opinion. Mental capacity-Will, construction of by court.</p> <p>1. A non-expert witness cannot give an opinion, except tliat lie may sometimes state an opinion derived from facts known to liim and disclosed. by him to the jury.</p> <p>2. The issue being as to the testator’s mental capacity, held, that, undeithe circumstances of this case, it was not error to exclude evidence tending to show that three years before the execution of the will the-testator was so irritable and abusive to his father that the doctors forbid him coming into the room, contracted a bill for liquor which he did not pay, and did not transact “ any business unless you call the selling-of articles that didn't belong to him as transacting business.”</p> <p>3. The court might be properly asked to construe the will in so far as its-construction would enable the jury to determine whether it was the-product of a sound mind or otherwise, but not to tell the jury what-weight they should give the will, as construed, in determining that question. Meld, that the construction of the will in this case was sufficiently favorable to the contestants to that extent.</p> <p>i. The will first appointed the wife executrix and then devised to the “ said executrix” all the property of the testator to “have, control, and dispose of in whatever manner she may deem fit.” Held, that it was a-devise to the wife as an individual and not as executrix.</p>

<p>Bill in chancery. The defendants demurred and the cause was heard on the demurrer at the December Term, 1889. Tart, Chancellor, dismissed the bill pro forma. The orator appeals.</p> <p>The defendants are husband and wife and the orator is the assignee of the insolvent estate of the husband, Anson J. He was appointed June 2oth, 1889. It did not appear when the petition of insolvency was filed, but the bill alleged that the $4,000 was deposited in the hands of the wife by the husband previously thereto, in contemplation of insolvency and in fraud of his creditors. The other allegations of the bill sufficiently appear in the opinion,</p> <p>Equity and law have concurrent jurisdiction over frauds and fraudulent conveyances. Wait Fr. Con. (1889 Ed.) s. 51, p„ 81, note and citation; Bispham Eq. s. 242 ; 1 Story Eq. s. 377; Cady, Assignee, v. Whaling et al., 7 Biss. 430 ; Me Lane r Admr. v, Johnson, 43 Yt. 48-61; 6 B. Mon. 24; Werseliusv. Werselius, 9 Blatchf. 189 ; Pennsylvanian. Wheeling Bridge-Co., 13 How. 518 ; Hale v. Continental Life Ins. Co., 12 Fed-Rep. 359.</p> <p>An assignee may file a bill to set aside a fraudulent conveyance by the insolvent. Pratt v. Curtis, 6 Nat’l Bank Reg. 139 ;: Bump. Fr. Con. (3d Ed.) 544; Qlenny v. Langdon, 98 U. S„ 20; 1 Nat’l Bank Reg. 542; Englebert v. Blanjot, 2 Whar. 240 : Welsh v. Welsh, 10 Mass. 229; Holland v. Cruft, 20 Pick. 328-31.</p> <p>Nor need he first invoke the aid of an execution. Bump Fr. Con. (3d Ed.) 545; Cady v. Whaling, 7 Biss. 430 ; Southard' v. Beemer, 72 N. Y. 424; Welsh v. Welsh, 105 Mass. 229.</p> <p>This bill prays for an accounting. Raynham v. Trustees, 23-Pick. 148.</p> <p>And the orator has no adequate remedy at law in the premises.. Burlingame v. Bell 16 Mass. 318 ; Gibbens v. Peeler, 8 Pick-258-260 ; ICneil, Admr. v. Egleston, Admr., 140 Mass. 202 ;; Thompson v. O’Sullivan, 6 Allen 303; Ayer v. Ayer, 16-Pick. 337; Smith v. Hodson, 2 Sm. L. C. pt. 1, p. 129 ; Place et al., Exr., v. Sedgwick, 95'[U. S. 3; Lawrence v. Bank of Republic, 3 Rob. (N. Y.) 155 ; Hendricks v. Robinson, 1N. Y.. Ch. (Law. Ed.) 382,[note ; Russell v.- Clark’s Exrs., 7 Cranch-. 69; Ayer v. Murray, 105 U. S. 129.</p> <p>The husband is not a proper party. Hastings v. Belden, 55-Yt. 273 ; Roberts v. Lund, 45 Yt. 82 ; Buffington v. Harvey,. 95 U. S. 99.</p> <p>The remedy at law is sufficient to obtain relief from this fraudulent conveyance, if it’be one. R. L. ss. 1860, 1861; Bassett v. Hotel Co., 47 Yt. 313 ;*R. L. ss, 1839, 1874, 1844, 1875.</p> <p>And the assignee [has therefore no standing in equityThayer v. Smith, 9 Met. 469 ; Clark v. Jones, 5 Allen, 879.</p> <p>It does not follow, on the allegations of the bill, that this was -a fraudulent conveyance. The husband may pay a debt which tie owes his wife, and a debtor may lawfully prefer one creditor to another. Atlantic Bank v. Tavener, 130 Mass. 107; Metsker v. Bonebrake, 108 U. S. 66 ; Powers, J., in Warren y. Hanney, 50 Yt. 653 ; Bump Bankr. 317.</p> <p>A bill against the wife will only lie to recover the specific •property which she has received. There is no allegation here •that she received or has any specific property which a decree can a-each. Phipps v, Sedgwick, 95 U. S. 3; Trust Oo. v. Sedgnoick, 97 U. S. 301; Huntington v. Saunders, 120 U. S. 78.</p>

<p>Petition for mandamus returnable to and heard at the Windsor County Court, February Term, 1890. The case appears in the opinion.</p> <p>When the applicant presents a regular diploma from a medical college the censors must issue a license. They have no discretion. R. L. s. 3911.</p> <p>The Yermont Medical College is a legal corporation duly «organized under chap. 169, R. L, The authority to organize it is found in R. L. s. 3664, sub-div. 10. It has all the powers of ■a corporation specifically chartered. United States Trust Co. v. Brady, 20 Barb. 119; Railroad Co. v. Canal Com., 21 Penn. St. 9 ; Stow v. Flagg, 72 111. 397 ; Field Corp. s, 15 ; Morawetz Pr. Corp. s. 17; Rogers v. Panby Universalist Soc.i 19 Yt. 187; Plank Road Co. v. Vaughan, 14 N. Y. 546; Pield Corp. s. 18.</p> <p>A medical college incorporated under the general law has no power to grant diplomas. The Medical College of Philadelphia, 3 Wharton, 445.</p> <p>The action of the Censors was judicial and cannot be revised-</p>

<p>Action, general assumpsit. Plea, the general issue. Trial by •court, at the May Term, 1889, "Veazey, J., presiding. Judgment for the defendant. Exceptions by the plaintiff.</p> <p>The court found the following facts:</p> <p>“The plaintiff and Caroline F. Johnson entered into a marriage engagement at Minneapolis, in August, 1878, and she was to come to Ycrmont, where the plaintiff resided, to consummate the engagement, as soon as she could get ready to come. In ■view of this arrangement the plaintiff sent to her, from time to time, the several sums of money set forth in the plaintiff’s specification, for the purpose of buying her wardrobe, to the extent •of $275, in preparation for her marriage, it being left with iher to write to him for any amounts needed for the purpose. •She did write from time to time and stated the sum required to ■be $275.</p> <p>“We further find that the plaintiff let her have the money sent by him without any expectation that it would be refunded; ■that he intended, when he sent the money, it should be a gift, to be used by her for the purpose named, to the amount of $275. He also sent her, in addition to that sum, $55, to be used by her in •defraying her traveling expenses to "Vermont for the purpose of being married according to their engagement, and she knew that the $55 were sent for that purpose.</p> <p>“ She used the $275 in buying clothes in preparation for marriage, pursuant to the foregoing arrangement.</p> <p>“ She did not come east to be married as agreed, but in November after broke the engagement entered into, and subsequently, in 1882, married the defendant Johnson.</p> <p>“We do not find that she had any good and sufficient reason for breaking the engagement.</p> <p>“She subsequently offered to send the clothes she had so •bought to the plaintiff. In 'reply to said offer the plaintiff wrote lier that he hoped she would reconsider the matter and come to him in fulfillment of their engagement.</p> <p>“The plaintiff never requested her to return the money until this suit was brought.</p> <p>“ Plaintiff intended in like manner that the $55 should be a gift, to be used for her traveling expenses in coming east as above stated, but she never so used it.</p> <p>“When she received and expended the money so sent to helas above stated she expected to marry the plaintiff.</p> <p>“ There were no conditions attached to the gift of the money, but it was given and received on the expectation of both parties that they were soon to be married. And was given to be used in the manner above stated.”</p> <p>The question as to the amendment appears in the head-note.</p> <p>The amendment brought onto the record no new parties or cause of action, and was properly allowed. Skinner v. Grant, 12 Yt. 456; Bowman v. Stow ell, 21 Yt. 309; Watermans. Gonn. (& Pass. R. R. R. Go., 30 Yt. 610, 614; Boyd v. Bartlett, 36 Yt. 9; Dana v. McGl-ure, 39 Yt. 197; Myers and wife v. Lyon, 51 Yt. 272; Eoberts’ Big. p. 26 et sag.</p> <p>The defendant wife received these sums iu contemplation of, and for the purpose of carrying out her promise to marry the plaintiff. She refused to keep that promise. Hence she ought to refund the money, and may be compelled to do so in this form of action. Add. Con. s. 1411; Chit. Con. 738 ; Tyson v. Doe, 15 Yt. 571; Towers v. Barrett, 1 T. E. 133; 4 E. C. L. (1st series) 81 ; Giles v. Edwards, 7 T. E. 181; 10 E. C. L. 89; Perkins v. Bait, 11 Wliart. 237 pi, 2 ; Danforth v. Dewey, 3 N. H. 79 ; Sieggel v. International Ins. <& Trans Co., (3 Norris) 84 Penn. 47; Gheongwo v. Jones, 3 Wash, C. C. 359 ; Ran-sens v. Mexican National Construction Company, 23 Blatehf. 19; Weaver v. Aitcheson, 32 N. W. Bep. 436.; 4 Am. Dig. 222.</p> <p>No demand was necessary. Lamphere v. Cowen, 42 Yt„. 175 ; Graves v. Tichnor, 6 N. H. 541; Calais v. Whidden, 64 Me. 249 ; Stetson v. Howe, 31 Me. 353 ; Lyon v. Annable, 4 Conn. 350, 351; Bill v. Wareham, 7 Met. 438 ; Wiggin v. Foss, 4 N. H. 294; Farr and v. Hurlbut, 7 Minn. 477 ;• Thompson v. Thompson, 5 W. Ya. 190, 193.</p> <p>The gift was upon condition. 1 Barb. & Har. Eq. Dig. 560 Attorney General v. Christ Hospital, Tam. 393 ; 1 Eonbl. Eq.. p. 439 ; 14 Yin. Abr. 19, Gift; 3 Black. Com. (352); 2 Chit. Eq. Dig. 1262 ; Robinson v. Cumming, 2 Atk. 409.</p> <p>The amendment was improperly allowed. The new declaration presented an entirely new state of facts. Brodeh v. Hirschfield, 57 Yt. 12.</p> <p>The court finds that the plaintiff intended these sums of money as “ gifts ” to the defendant. When a gift has once been fully perfected, the donor cannot afterwards change his mind and revoke it. McKane v. Bonner, 1 Bai. 113 ; Boty v. Wilson, 47 N. Y. 580; Gray v. Barton, 55 N. Y. 68; Betts v. Francis, 30 N. J. L. 152; Minor v. Rogers, 40 Conn. 512.</p>

Replevin for 58 volumes of Vermont Reports. Plea, the-general issue; trial by jury at the December Term, 1888,, Powers, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. On trial the defendant justified the taking as tax collector for the town of Ludlow under a tax warrant based upon, the grand-list of 1886.

<p>Ejectment for certain lands in the towns of Strafford and 'Thetford in the county of Orange. Heard upon referee’s report at the December Term, 1889, Roweix, J., presiding. Judgment for the plaintiff for the possession of the demanded premises, one cent damages and costs. Exceptions by the defendants.</p> <p>It was conceded that the defendants were in possession of the premises and had ousted the plaintiff therefrom. It was further •conceded that the defendants had no title to fifty-seven acres of .•said premises, and that in respect of that parcel the plaintiff was entitled to judgment. The remainder of the premises were -owned by John Eastman at his decease in 1856. John Eastman loft a will by which he devised these premises upon certain conditions to his son, John J. Eastman, and his daughter, Kosette 0. Hill. The terms of this devise fully appear in the opinion. The will was probated, and John J. Eastman, who was nominated executor, qualified as such, and proceeded to execute the trust. Thereupon he procured a license from the Probate Court to sell these premises. One Kibbling was appointed guardian ■of the property of the children of John J. Eastman and Kosette C. Hill, and appeared before the Probate Court and assented to the granting of the license to sell. Pursuant to this license John • J. Eastman sold the premises to different persons who at once reconveyed to him. Rosette C. Hill also quit-claimed her interest in the estate, but to whom did not clearly appear in the report. This was in 1857. John J. at once went into possession of the premises and continued to occupy them as his own until 1882. Meantime he had mortgaged them, the mortgages had been duly foreclosed, and in 1882 possession was taken ■under the decree. It was by virtue of these mortgages that the plaintiff claimed title.</p> <p>Previously to the giving of the mortgages under which the plaintiff -claimed, John J. Eastman and Kosette 0. Hill had .given a mortgage of the same premises to the aforesaid Kibbling to secure the payment of a note payable on or before the death of the said John J. Eastman and Kosette C. Hill, given as indemnity to him for all loss by reason of having been appointed guardian of property to the amount specified in the-note, which was bequeathed to the children of John J. Eastman? and Bosette C. Hill by John Eastman.</p> <p>John J. Eastman and Bosette C. Hill had both deceased) before the bringing of this suit. It would appear that neither of them had children when Kibbling was appointed ■ guardian, but both left children at the time of their decease. The defendants were the children, of John J., born in 1871 and 1872, and they had taken and held possession of the demanded premises-both for themselves and the children of Bosette C. Hill.</p> <p>The decree of the Probate Court, granting the license to sell,, was conclusive. Judge of Probate v. Pillmore, 1 D. Chip. 420, 423 ; Lawrence v. Fnglesby, 24 Vt. 42 ; Spar hawk v. Buell, 9' Yt. 41; Six v. Smith, 8 Yt. 365 ; Robinson v. Swift, 3-Yt. 283.</p> <p>The mortgages under which the plaintiff claims were executed? before these defendants were born. The plaintiff stands as a* bona fide purchaser without notice. Bumpus v. Planter, 1 John. Ch. 213; Griffith v. Griffith, 9 Paige, 315 ; Paddon v_ Taylox, 44 N. Y. 371; Downer v. Royalton Bank, 39 Yt. 28-</p>

<p>Tbis was an action of assumpsit brought by the plaintiff •against the defendant town to recover for services in caring for his daughter Lornyra. Plea, the general issue. Trial by jury at the June Term, 1888, Powers, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts.</p> <p>With reference to the mental condition of the daughter and Irer relation to the plaintiff the exceptions stated:</p> <p>“ It appeared that said Lornyra A. was 23 years of age at the time of the commencement of tins suit, and had from a child been of weak mind and incapable of exercising any choice or intention in regard to the place of her residence, had always lived with the plaintiff as a part of his family, and during all said time was suffering from such mental disability and infirmity as rendered it necessary that she should remain with and under the care, protection and control of her parents, and had never been emancipated.”</p> <p>It did not appear what the pecuniary ability of the plaintiff was.</p> <p>The plaintiff claimed to recover in virtue of an express contract with the overseer of the defendant, which the defendant denied, and this was the only question raised during the trial. In the course of its charge the court said to the jury that under the facts of this case the daughter had never been emancipated, and that the plaintiff was still liable for her support. -Thereupon, at the conclusion of the charge, the defendant for the first time claimed that the promise of the defendant was without consideration and void, and requested the court to so further instruct the jury. This the court refused to do and the defendant excepted.</p> <p>The daughter never having been emancipated, and not being a fit subject for emancipation, it w'as still the legal duty of the father to support her. Eeeves Dom. Eel. 283 ; Swain v. Tyler, 26 Yt. 9; Rockingham v. Springfield, 59 Yt. 521.</p> <p>That being so the father himself was the pauper. Rocking-ham v. Springfield, 59 Yt. 521; Gilmanton v. Sanbornton, 56 N. H. 336 ; Oroydon v. Sullivan, 47 N. JEL 179.</p> <p>Hence the promise of the defendant to pay the plaintiff for doing what he was in law bound to do was nudum pactum.. Gobb v. Gowdry et al., 40 Yt. 28; Chit. Con. 51, 52 and notes ; Orowhurst v. JLavrack, 8 Exch. 208 ; Jjaboytaux v. SwigartT 1 W. Eep. 562; Bragg v. Danielson, 141 Mass. 195 (1 N. E. Eep. 727); Kent v. Rand, 2 N. E. Eep. 858; Hubbard v. Bugbee, 58 Yt. 172 ; Haywood v. Barker', 52 Yt. 429.</p> <p>It was the duty of the court to charge fully without being requested. State v. Hopkins, 56 Yt. 261; Buck v. Squires, 23 Yt. 498.</p> <p>The request that the court instruct the jury that the plaintiff could not recover because he was, in legal effect, the pauper, came too late and the exception will not lie. The question was-not raised during the trial.</p> <p>Suppose it came in time tlie principle contended for is not sound.</p> <p>The plaintiff contracted with the town and the fact that hewas a pauper does not invalidate the contract. 1 Par. Con. c-1; Chit. Con. c. 11; 1 Add. Co. c. 11.</p>

<p> PJquity, jurisdiction. Power of town to hold real estate. Deputy clerk may sign writ of possession. </p> <p>1. A town may purchase at sheriff’s sale, and maintain its title to real estate which has been taken upon execution in its favor,</p> <p>ü. The bill alleged that the orator claimed title under a sheriff’s deed following a sale of the land upon execution in its favor against one of the defendants; that this defendant, subsequently to the sheriff’s sale, executed first a mortgage and afterwards a warrantee deed of the premises to the other defendants; that still later the orator took out a writ of possession which was served upon the defendant grantor, and that the defendant Fowler, who was then occupying the house upon the premises, agreed to hold under the orator; that said mortgage and deed were without consideration; that in virtue of them the defendants claimed title to the land, had pastured some of it, cut down trees standing upon it, and were threatening violence to any one who should occupy under the orator; that the defendants were irresponsible; that the vindication of the orator’s rights at law would require a multiplicity of suits, and that the above conveyances constituted a cloud upon the orator’s title. Held, that a court of equity had jurisdiction, for that no remedy at law was adequate to reach the justice and equity of the case.</p> <p>•3. A deputy clerk has all the power of the clerk to sign a writ of possession.</p>

This was an action, in assumpsit, and the case was heard upon •.the report of a referee at the June Term, 1889, Royce, Ch. J., presiding. Judgment for the defendant and exceptions by the •plaintiff.

Petition for an appeal from the judgment of a justice of the peace to the County Court. Trial by court at the December Term, 1886, Powers, J., presiding. Judgment for the petitioner. .Exceptions by the defendant. The petitioner was an express company organized in New York and doing business in Yermont. The defendant brought ■suit against one Robinson and trusteed the petitioner. The suit was returnable before a justice and the ad damnum was twenty •dollars.

Trover for the conversion of a horse, carriage and harness. Plea, the general issue. Trial by jury at the December Term, 1889, Eoss, J., presiding. Verdict and judgment for the plaintiff. Exceptions by the defendant.

<p>Bill in chancery, heard at the December Term, 1888, on pleadings, master’s report and exceptions thereto. Tyler, Chancellor, dismissed the bill pro forma. The orator appeals.</p> <p>The opinion states the facts.</p> <p>The deed from Mrs. Haley was an absolute one and she could have asserted no lien against the land if her daughter had refused to support her. E. L. s. 1933 ; Pinnock v. Clough, 16 Yt. 500; Railroad v. Hill, 23 Vt. 684; Flint v. Sheldon, 13 Mass. 442; Smith v. Lane, 3 Pick. 205 ; Movan v. Hayes, 1 John. Ch. 339; Moore v. Moore, 38 N. H. 382.</p> <p>' Mrs. Hendrick had therefore the absolute title to this land, and her creditors could have levied on it for their debts. It was all she had and a conveyance of it was fraudulent as to them. It is immaterial whether they gave credit on the strength of it. Church v. Chapin, 35 Yt. 223 ;' Coolidge v. Melvin, 42 N. H. 524; Williams v. Thompson, 13 Pick. 300 ; Lukins v. Aird, 6 Wall. 78; see opinion of court, Brackett v. Waite, 4 Yt. 399; Dalton v. Carrier, 40 N. H. 246 ; McLane v. Johnson ct al., 43 Yt. 48-59 ; E. L. s. 2162.</p> <p>A debtor cannot convey all his property to secure his own support, or that of any one else without making provision for his debts. Crane v. Stickles, 15 Yt. 252; Jones v. Spear, 21 Yt. 432; Woodward v. Wyman, 53 Yt. 645 ; Bump. Er. Con. 399.</p> <p>This conveyance was not made by Mrs. Hendrick to secure her own support, but to secure the performance of an obligation under which she rested as to another. She never paid anything for the farm and her estate is in no way injured by the whole transaction.</p>

<p> Mortgage conditioned for support; in absence of agreement, who to elect toiler e to be furnished. </p> <p>¡Petitionees executed and delivered to petitioner a mortgage deed of certain premises conditioned for her support during her lifetime. The mortgage deed was silent as to where such support should be furnished.</p> <p>¡Meld, that the petitioner might select the place where she would receive her support, provided she did not thereby impose an unreasonable burden, by way of expense, upon the petitionees.</p>

Assumpsit by the plaintiffs against Lucia S. Green, principal defendant, David M. Silsby trustee, and Yernon Y. Yance, claimant. Heard at the December Term, 1889, Ross, J., presiding, upon an agreed statement of facts. The principal defendant mortgaged certain live stock to tbe plaintiffs, the stock remaining in the possession of the mortgagor. Subsequently she employed the claimant, Yance, to keep this stock for her, and put it into his possession for that purpose.

<p>Keeping liquor toith intent to sell. Common nuisance, Former acquittal.</p> <p>1. Although at common law the possession of an instrument of crime accompanied by an intent to use it is not a crime without some overt act, yet it may be made so by statute; and R. L. s. 3802, declaring it an offense to keep intoxicating liquor with intent to sell, is valid as to that objection.</p> <p>2. An acquittal upon the charge of keeping a common nuisance is not a harto a prosecution for keeping intoxicating liquor with intent to sell,, although the same evidence is relied upon to substantiate both charges.</p>

<p>Assumpsit for certain taxes by the plaintiff as collector of the town of Montpelier. Plea, the general issue. Trial by court -at the March Term, 1890, Powers, J., presiding, upon an agreed statement of facts. Judgment for the defendant. The plaintiff excepts. The case appears in the opinion.</p> <p>This fund had never been distributed ; it was therefore undistributed personal estate in the hands of an administrator, and ■should be set in the list according to clause VII, R. L. s. 281.</p> <p>This fund by the terms of the will could not be distributed. It was “held in trust ” for the benefit of the beneficiaries; and it is immaterial whether it was under the control of an administrator or some other trustee.</p>

<p> Contribution to maintenance of dam. Actual expenditures may be-recovered. Injunction damages. Construction of injunction. </p> <p>1. If one of two persons, who are jointly liable to contribute to the maintenance of a dam, neglects to do so, the other may recover of him whatever he has been obliged to actually expend about such common duty, provided he has prosecuted the work as cheaply as he could under-the circumstances and conditions in which he was placed.</p> <p>2. A defendant, who has been wrongfully enjoined, may recover as injunction damages whatever loss he has sustained by reason of obeying theinj unction as he reasonably understood it.</p> <p>3. The allowance of the master to the defendant of damages for 30 days los»of the use of his mill occasioned by his an-est for violating the injunction is here disallowed, except as to three days, for that the facts-reported do not show that such loss was properly caused by the injunction.</p>

This was an action brought by the town of Marshfield to recover of the town of Tunbridge for money expended by the plaintiff in caring for certain paupers claimed to be chargeable upon the defendant. The case was heard at the March Term,. 1890, Powers, J., presiding, upon an agreed statement of facts. Judgment pro forma for the defendant; exceptions by the plaintiff.

<p>Ex post facto laiv. No. 39, Acts c/4886. No. 36, Acts 0/4888.</p> <p>No. 39, Acts of 1886, provided a penalty for intoxication. No. 36, Acts of 1888, provided a different penalty, and repealed the act of 1886 without any-saving clause as to offences already committed.. Held, that there could he no conviction for an offense committed before the act of 1888 took effect.</p>

General and special assumpsit for the amount of a promissory note. Flea, the general issue. Trial by court at the September Term, 1888, Tyler, J , presiding. Judgment for the defendant.. The plaintiff excepts. The following is a copy of the note and lien in suit: “Washington, Feb. 7th, 1885. “ For value received I promise to pay Wm.

Eeplevin. Heard, upon general demurrer to the defendant’s plea in abatement at the December Term, 1889, Powers, J., presiding. Demurrer sustained. The defendant excepts.

<p>This was an appeal from a decree of the Probate Court, and -was tried by court at the April Term, 1890, Munson, J., presiding. The deeree of the Probate Court was affirmed, and the -appellant excepted.</p> <p>The second paragraph of the will of J". W. Turner was as foil-lows :</p> <p>“ 2d. I give, devise and bequeath all my interest and income ■on all of my property, personal and real estate, not hereinbefore -disposed of, to Charles W. Turner and Arthur Lyman, son of .'Seymour Lyman, as follows:</p> <p>“ I give, devise and bequeath one-half of said interest and income to said Charles "W. Turner during his natural life, and in case of Ms death, give, devise and bequeath said C. W.’s interest and income to Henry W. Turner and Roy W. Turner, said ■C. W. Turner’s sons, each one-half, and to be paid them for ten-years, then principal to become theirs. The other half of said interest and income from all my property, not hereinbefore disposed of, I give, devise and bequeath to Arthur Lyman, son of • Seymour Lyman, and to be paid to the said Arthur for ten ..years, them the principal to become his. In case of his death before the expiration of ten years, then in that event, said Arthur leaving no heir or heirs, I give and devise and Ibequeath the said principal to the American Hoard (so called) -and for foreign missions.”</p> <p>To the will was added this codicil:</p> <p>“I hereby change the foregoing will so as to give C. W. Turner two-thirds of said interest and income and one-third to the •■said Arthur Lyman.”</p> <p>It appeared that C. W. Turner had deceased, leaving the two-sons named in the will. The Probate Court decreed two-thirds-of the income to them and one-third to Lyman, the appellant.</p> <p>The codicil only referred to C. W. Turner so long as he lived,„ and not to his sons. When the will is clear and the codicil not equally clear, the plain intent of the will must govern. Tin-ball, Ch. J., in Doe de Hearle v. Hicks, 8 Bing. 475 ; 1 Redf.. Wills, s. 13, p. 351; Alexander v. Alexander, 6 De Gex, Mac.. & G. 593 ; Williams v. Evans, 1 E. & B. 726 ; Robertson v.. Powell, 2 H. &. C. 761 ; Barnes v. Hanks, 55 Yt. 317.</p> <p>A purpose in the codicil to alter the will in one particular carries with it the presumption that the testator did not intend to-alter it in any other. 1 Redf. Wills, 287 and note ; Quincy v.. Rogers, 9 Cush., 291.</p> <p>The will and the codicil together form but one instrument-Thompson's Admr. v. Churchill's Estate, 60 Yt. 371.</p> <p>The sons of C. W. Turner took, by the will, his interest-When that interest was changed to two-thirds they took two-thirds.</p>

<p> When grant of grammar school lands is irrevocable. Collateral issue. </p> <p>3. By its original charter certain lands in the town of Bichford were reserved for the support of a grammar school. Held, that the act of the Legislature passed Nov. 7th, 1815, appropriating these lands to the use of the Franklin County Grammar School, and the subsequent acceptance and possession of these lands by the grammar school constituted an executed grant or gift, which subsequent Legislatures could not revoke, and that No. 258, Acts of 1884, appropriating the rents of said lands to School District No. 2 in Bichford was unconstitutional.</p> <p>2. If it is necessary to find any consideration for the grant of 1815, the fact that the grammar school assumed the burden of collecting and applying these rents, and relieved the State therefrom is an ample one.</p> <p>8. The question whether the grammar school has so conducted as to forfeit its charter cannot be collaterally raised in defense of an action in ejectment for the unpaid rent.</p>

<p>This was an action for slander. Plea, the general issue with notice of special matter in justification. Trial by jury at the September Term, 1888, Washington County, Tyler, L, presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant.</p> <p>The defendant excepted to the action of the court in admitting evidence of a conversation between her and one Chase, a post office inspector, and to the charge of the court in reference thereto ; and also to the charge of the court defining the accuracy with which the speaking of the words as alleged must be proven, The natnre of these exceptions appears in the opinion-</p> <p>The defendant further excepted to the action of the court in overruling her motion to set aside the verdict. This motion was made for that the plaintiff did not attempt to prove any special damage on trial, and did not in fact prove the speaking; of any words actionable per se. The question raised by this; exception is fully stated in the opinion. The plaintiff had conceded at the opening of the trial that years before she contracted a venereal disease from her husband, which was still present to-some extent in her system.</p> <p>The defendant also moved in arrest of judgment for the insufficiency of the declaration. This consisted of five counts which' alleged the speaking of different words, to different persons, at different times and places. The first count was as follows :</p> <p>“ In a plea of trespass on the case, for that, whereas, the said plaintiff now is a good, honest, virtuous and faithful citizen of this State, and as such has always behaved and conducted herself, and until the committing of the several grievances by the-said defendant, as hereinafter complained of, was always reputed,, esteemed and accepted by and amongst all her neighbors and other good and worthy citizens of this State t.o whom she was in any wise known, to be a person of good name, fame and credit, to wit, at Fayston aforesaid. And whereas also the said plaintiff hath never been guilty, or until the time of the committing of the said several grievances by the said defendant as hereinafter complained of, been suspected to have been guilty of lewd and lascivious conduct or of any other misconduct, and has never been guilty of the crime of keeping a house of ill-fame or of any other like crime or misconduct; by means of which said premises the said plaintiff, before the committing of the said several grievances by 'the defendant as hereinafter complained of, had deservedly obtained the good opinion of and was deservedly known as a person of good name, fame and credit, by and amongst all her neighbors and other good and worthy citizens of this State to whom she was in any wise known, to wit, at Eayston aforesaid. And whereas also the plaintiff was at the time of the committing of the said several grievances hereinafter complained of, a candidate and an applicant for the appointment as post mistress by. the United States government at North Fayston,.in Fayston aforesaid. And whereas also the plaintiff was at the time of the committing of the said several grievances hereafter complained of, a dealer in groceries and solicited the custom and patronage of her neighbors to purchase the same of her, the plaintiff, and was making-great gains and advantage to herself thereby, to wit, at Fayston aforesaid. Yet the defendant well knowing the premises, but greatly envying'the happy state and condition of the plaintiff, and contriving and maliciously and wickedly intending to injure the said plaintiff in her said good name, fame and credit, and to bring her into public scandal, infamy and disgrace, with and amongst all her neighbors and other good and worthy citizens of this State and to cause her to be reputed as an indecorous, unchaste, immodest and improper person, and to cause it to be suspected and believed by her neighbors and other good and worthy citizens of this State that the said plaintiff had been guilty of the crime of keeping a house of ill-fame and was a common prostitute, and to vex, harass, oppress, impoverish and wholly ruin the said plaintiff and to prevent her, the said plaintiff’s, neighbors and other good and worthy citizens of this State from going to the house of the plaintiff to purchase of her, the said plaintiff, groceries as aforesaid and to.harass and hinder and prevent her, the said plaintiff, from obtaining the said appointment as post mistress at North Fayston, in Fayston aforesaid, heretofore, to wit, on the 18th day of February, A. D. 1888, at Fayston aforesaid, in a certain discourse with the said defendant then and there had of and concerning the plaintiff, in the presence and hearing of one John G-ranfield and of other good and worthy citizens of this State, then and there falsely and maliciously spoke and published of and concerning the plaintiff, the false, scandalous, malicious and defamatory words following, that is to say:</p> <p>“She” (meaning the plaintiff) “ keeps a common open house,” (meaning that the plaintiff kept a common open house of ill-fame) ;“she” (meaning the plaintiff) “is nothing but a whore anyway,” (meaning that the plaintiff was a common prostitute and kept a house of ill-fame); “ her children” (meaning the children of the plaintiff) “are all broken out with sores,” (meaning it to be understood that the children of the plaintiff were infected with the venereal disease) “and would poison the mail if it came there,” (meaning that said children would handle the mail and would poison the mail by contact with the poison from this venereal disease, if the plaintiff obtained the appointment as post mistress at said North Fayston and the mail came to the house of the plaintiff).</p> <p>The other counts were substantially the same, except as to the allegation of the defamatory matter, which was as follows in the several counts:</p> <p>Second Count. — “I” (meaning the defendant) “ will have my mail” (meaning the mail coming through the post office to the defendant) “stopped at Moretown,” (meaning that if the plaintiff was appointed post mistress as aforesaid, she, the defendant, would have her mail stopped at the post office at the village of Moretown); “my mail” (meaning the mail coming through the post office to her, the defendant,) “ won’t come into a whorehouse,” (meaning that the plaintiff kept a house of ill-fame and that she, the defendant, would not have her mail come through the post office at said North Fayston, if the said plaintiff obtained the appointment to the office of post mistress as aforesaid).</p> <p>Third Count. — “1” (meaning the defendant) “ do not think it ” (meaning the dwelling house of the plaintiff) “ a fit place for the mail to go, to any such stinking place,” (meaning that the plaintiff kept a low house of ill-fame, and that her house was not a fit place for people to go to get the mail which came to them through the post office). Thereafterwards in answer to the question by said Chase, “ why are you afraid of any disease, of taking it, or getting poisoned ?” the defendant falsely and maliciously spoke and published of and concerning the plaintiff in the hearing and presence of the said Chase and of other good and worthy citizens of this State, the false, scandalous, malicious and defamatory words following, that is to say Yes, that is one objection,” (meaning that the fear of getting poisoned from the venereal disease was one objection to the plaintiff being appointed to the office of post mistress as aforesaid) “audit” (meaning the dwelling house of the plaintiff) “is no place for it” (meaning that the dwelling house of the plaintiff was no fit place for the post office). Said Chase then asked the question as follows : “ Why is the character of Mrs. Posnett not in good standing?” to which question the defendant in the presence and hearing of the said Chase and of other good and worthy citizens of the State falsely and maliciously spolce and published of and concerning the plaintiff the false, scandalous, malicious and defamatory words following, that is to say : “ I ” (meaning the defendant) “do not think she” (meaning the plaintiff) “is” (meaning that she did not think that the character of the plaintiff was good). Said Olíase then asked the defendant the question as follows: “Is she (the plaintiff) in the habit of having men come there to her house and lounge around and stay for Fours at a time ?” In answer to which question the defendant in the presence and hearing of the said Chase and of other good and worthy citizens of this State falsely and maliciously spoke and published of and concerning the plaintiff the false, malicious, scandalous and defamatory words following,' that is to say: “ I ” (meaning the defendant) “ am sure she” (meaning the plaintiff) •“does that” (meaning that the defendant was sure that the plaintiff had men around there, the plaintiff’s house, for hours for the purpose of sexual intercourse with the plaintiff); “ she ” •(meaning the plaintiff) “ has men enough there” (meaning at the house of the plaintiff) “ most any time,” (meaning it to be under.stood and believed that the plaintiff kept a house of ill-fame and had men there at any and all times for the purpose of prostitution and to have sexual intercourse with the plaintiff).”</p> <p>Fourth Count. — “ Mrs. Posnett ” (meaning the plaintiff) “keeps ■a house of ill-fame,” (meaning that the plaintiff was guilty of the crime of keeping a house of ill-fame) “ and all of the boys Fave what they want of her,” (meaning that- the plaintiff was a ■common prostitute, and that she kept a house of ill-fame and ■that all the men and boys went to the house of the plaintiff and had sexual intercourse with the plaintiff whenever they wished) •“ and 1 can prove it,” (meaning that she, the defendant, could prove that the plaintiff kept a house of ill-fame) “ and she ” (meaning the plaintiff) “ will steal ” (meaning that the plaintiff was guilty of the crime of theft) “and lies,” (meaning that the plaintiff was untruthful and would tell lies).”</p> <p>Fifth Count. — “ It’s imposing on the community to have the mail go to any one as rotten as she ” (meaning the plaintiff) “is,” (meaning thereby that the plaintiff kept a house of ill-fame and was a common prostitute and had thereby contracted the venereal disease and that the plaintiff was all rotten with said disease); •“ she ” (meaning the plaintiff) “ is all rotten with the pox” (meaning that the plaintiff had contracted the venereal disease .and was rotten with the same).”</p> <p>No special damage was averred or proved. The words charged ¡are .not .actionable per se. Underhill v. Wilton, 32 Vt. 40 ; Dickey v. Andros, 32 Vt. 55; Hoar v. Ward, 47 Vt. 657; Town. SI. & Lib, (Ed. 1868) s. 172; Koch v. Kucleman, 16 I1L 478; Davis v. Brown, 27 Ohio St. 326 ; Odg. Lib. 84.</p> <p>The counts alleging the speaking of words charging the plaintiff with keeping a house of ill-fame should contain an averment that she had a house. Merritt v. Dearth, 48 Vt. 65 ; Hoar c& Wife v. Ward, 47 "Vt. 657; Sheridan v. Sheridan, 58 Vt. 504; Kimis v. Stiles, 44 Vt. 351.</p> <p>In order to be privileged the words to the post office inspector must be without actual malice. Odg. Lib. 197, 219, 220, 221; Folk. St. SI. 3L1, 331; Jackson v. Hopperton, 16 O. B., N. S. 829 ; Hoonan v. Orton, 32 Wis. 106.</p> <p>The plaintiff need only prove the substance of the words alleged. Odg. Lib. 537 and notes; Huckle v. Reynolds, 7 C. B.„ N. S. 114; Taylor v. Moran, 4 Met. (Ky.) 127 ; Bassett v. Spofford, 11 N. H. 127 ; Downs v. Hawley, 112 Mass. 237 ;. Ohace v. Shannon, 119 Mass. 387; Dickey v. Andros, 32 Vt. 55; Smith et al. v. Hollister, 32 Vt. 695.</p> <p>The words alleged are actionable per se. They charge a crime involving moral turpitude and subjecting the offender to corporal punishment. Odg. Lib. 2, 53, 56 ; Brayne v. Oooper, 5 M. &. W. 249 ; Huckle v. Reynolds, 7 0. B., N. S. 114 ; Folk. St. SI. 104, 121, 122 ; 1 Am. Lead. Oas. (5th Ed.) 98 ; Fowler v. Dowdney,.2 M.& R. 119 and note; Widrig v. Oyer et ux., 13 John. 124 ; Young v. Miller, 3 Hill, 21; Birch v. Benton, 26 Mo. 153 ; Kenney v. McLaughlin, 5 Gray, 3; LUisbie v. Fowler, 2 Conn. 707; Page v. Merwin, 54 Conn. 426 ; Pollard v. Lyon, 91 0". S. 225 ; Billings v. Wise, 7 Vt. 439 ; Redway v. Gray, 31 Vt. 292; Underhill v. Wilton, 32 Vt. 40; Murray v. McAllister, 38 Vt. 167 ; Rea v. Harrington, 58 Vt. 181; No. 95, Acts of 1884; McAllister v. Clark, 33 Conn. 91; Griffin v. Moore, 43 Md. 246 ; Fitzgerald v. Robinson, 112 Mass. 371.</p> <p>The function of the innuendo is to declare the sense in which the words were spoken ; and where they are susceptible of the’ meaning put upon them, it is for the jury to say whether they were so used. It is submitted that the words here alleged were capable of sustaining the meaning put upon them, and that in the light of the prefatory averment, they fairly do. 1 Am. Lead. Cas. 146 ; Odg. Lib. 100, 101, 111, 112; Williams v. Gardiner, 1 M. & W. 245 ; Odg. Lib. 59, 93 to 98, 111 to 113, 557; Folk. St. SI. 134, 135, 139 to 141,-144; Town. SI. & Lib. s. 143 ; Coleman v. Goodwin, 2 B. & C. 283; Clegg v. Laffer,. M. & Scott-, 727.and note; Wilson v. Barnett, 45 Ind. 163;-Waugh v. Waugh, 47 Ind. 580 ; Robinson v. Drummond, 24 Ala. 174; Rogers v. Kline, 56 Miss. 808; Sanderson v. Caldwell et al., 45 N. Y. 398 ; Downs v. Hawley, 112 Mass. 237 ;• Dickey v. Andros, 32 Vt. 55 ; Chamberlin et ux. v. Vance, 51 Cal. 75; Brettun v. Anthony, 103 Mass. 37; Work v. Johnson, 116 Mass. 482; Chace v. Sherman, 119 Mass. 387 r Weil v. Schmidt, 28 Wis. 137 ; Folk. St. SI. 100 and notes, 144 to 152 ; Gilman v. Lowell, 8 Wend. 573 ; Blickenstoff et al. v. Perrin, 27 Ind, 527; Rogers v. Lacey, 23 Ind. 507.</p>

Petition that the petitionee be adjudged in contempt for the 'non-payment of alimony. Heard upon demurrer at the December Term, Bennington County, 1888, Taft, J., presiding. The ■demurrer was overruled and the defendant excepted. The case appears in the opinion. The County Court has no jurisdiction in divorce proceedings except that conferred by statute. The statute does not confer the right to. imprison for the non-payment of alimony.

<p> Notice when list is doubled. Evidence of taxable residence. Introduction of evidence after verdict. Effect of partial invalidity of tax upon warrant. </p> <p>.1. Where a taxpayer’s list is made up by the doubling process, a written notice from the listers referring to the section of the statute under which they have proceeded and notifying the taxpayer that they have “assessed ” him a certain sum, is sufficient.</p> <p>X The question being whether the plaintiff was a taxable resident in the town of Wheelock in 1883, held, permissible to show by cross-examination of the plaintiff that he had had no residence outside of Caledonia county since 1874, and that he paid no taxes in 1880 and 1881.</p> <p>.15. The plaintiff claimed that in 1882 he resided in Sutton. Held,, that he might be inquired of whether he was allowed to vote in that town at the September election of that year.</p> <p>•4. Plaintiff testified that in 1883 he had not a taxable residence in Wheelock, but that he had in Sutton or Lyndon. Held, that it might be shown by one of the listers of Lyndon and by the grand list that he had no list in that town for that year.</p> <p>•B. The court may admit an item of proof between verdict and judgment when it does not appear that the verdict would have been affected thereby, and no objection was made to the judgment for that reason.</p> <p>"6. An arrest upon a tax warrant is not rendered illegal by the fact that the per cent assessed raises a sum slightly in excess of the gross sum voted. '7. An officer making an arrest upon a valid tax warrant is not rendered a trespasser ah initio by the fact that he demands and receives with the tax an illegal fee for the service of the warrant, where the taxpayer makes no tender of the amount legally due and does not object specifically to the illegal fee.</p>