63 Vt.

Volume 63 — Vermont Reports

114 opinions

63 Vt. 1Vermont & Canada Railroad v. Vermont Central Railroad (1890)
This was a petition by the Rutland Railroad Co. against the Central Yermont Railroad Co. and the Consolidated Railroad Co. of Yermont, asking for an order to compel the payment of rent in arrear. Hoard upon pleadings and master’s report at tbe April term, Fi'aukl in county, 1888. Yeazey, chancellor, dismissed the petition pro forma. The petitioner appeals. The petition was filed November 10, 1886. It alleged the various facts necessary to show that the remedy sought was an appropriate one, that the defendants were liable to pay to the petitionee certain rents, ,and that these rents had not been fully paid. The defendants answered that the rents had been fully paid. The case was referred to a master to find and report the facts, and from his report it appeared: The petitioner on December 30, 1870, by written contract, leased its railroad for the period of twenty years from January 1, 1871, to the trustees and managers of the Yermont Central and Yermont and Canada Railroads, who were acting as receivers under the authority of the Court of Chancery. The agreement for the payment of rent in said contract of lease was as follows : “Art. 5. The parties of the second part agree to pay to the parties of the first part, for the consideration herein mentioned, three hundred and seventy-six thousand dollars ($376,000) annually, payable in semi-annual instalments of one hundred and eighty thousand dollars each, on the 20th days of January and July in each year hereafter, during the continuance of this contract, the first instalment to be payable on the 20th. day of July, 1871. They also agree to pay the Hnited States income tax, chargable upon the preferred stock and bonds of the Rutland Railroad Co., and in addition thereto to pay on the first day of January, 1873, forty thousand five hundred dollars, ($40,500). On the first day of January, 1874, fifty-four thousand dollars, (54,000). On the first day of July, 1874, forty thousand five hundred dollars, ($40,500). On the first day of January, 1875, forty thousand five hundred dollars, ($40,500). On the first day of July, 1875, sixty-seven thousand five hundred dollars, ($67,500). On the first day of January, 1876, sixty-seven thousand five hundred dollars, ($67,500). On the first day of July, 1876, eighty-one thousand dollars, ($81,000). On the first day of January, 1877, eighty-one thousand dollars, ($81,000). On the first day of July, ¿877, eighty-one thousand dollars, ($81,000). On the first day of January, 1878, eighty-one thousand dollars, ($81,000). On the first day of July, 1878, eighty-one thousand dollars, ($81,000): On the first day of January, 1879, eiglity-one thousand dollars, ($81,000). On the first day of July, 1879, ninety-four thousand five hundred dollars, (94,500). And at that rate for each succeeding six months during the continuance of this contract. And the parties of the second part also agree to pay for the purpose of keeping up the organization of said Rutland Railroad company and .for incidental expenses, eight thousand dollars annually.” As a part of this transaction the trustees and managers gave to the petitioner an order upon the Cheshire Railroad Co. as follows: “ Vermont Central and Vermont & Canada Railroad, Office of President and Managers, St. Albans, Vt., Jan. 30,1871. E. Murdock, Jr., Esq., President Cheshire Railroad Co.: Dea/r Sir: A contract for operating and managing the Rutland Railroad, the Vermont Valley Railroad; the Vermont & Massachusetts Railroad (between Brattleboro and Grout’s Corner), the ’Whitehall & Plattsburgh Railroad (Northern and Southern Divisions), the Plattsburgh & Montreal Railroad, the Addison Railroad, and the steamboat “ Oakes Ames,” by the trustees and managers of the Yermont Central and Yermont & Canada Railroads, having been made and entered into by us with the Rutland Railroad Co., extending for a period of twenty (20) years from the first day of January, 1871. You will please to pay to the order of the Rutland -Railroad Co. the monthly balance which may be due from your company to us in settlement of traffic accounts, to an amount not exceeding ten thousand (10,000) dollars per month, during the year 1871, to Jan. 1, 1872. From and after the first day of January, 1872, you will pay to the Rutland Railroad Co. or order, from such balances due to us the sum of twenty thousand (20,000) dollars per month, such payments to be made by your company monthly, in the dire course of settlement between the roads now in practice, subject, however, to be revoked by us, when we are ousted from possession of said railroad and property, under any of the terms and stipulations contained in the contract between us and the Rut-land Railroad Co. You will please take the proper receipts from the Rutland Railroad Co. for such payments, which will be your vouchers for such amounts in settlement with us. Yery truly yours, J. GREGORY SMITH, President Trustees and Managers. The within order is accepted by vote of the directors of the Cheshire Railroad Co. E. MURDOCK, Jr., President.” Boston, Feb. 8, 1871. Referring to this order and another upon the Yermont Yalley Railroad Co., not now material to be considered, the following clause was inserted in the aforesaid contract of lease: “ Whereas, The party of the second part has given to- the party of the first part an order upon the Connecticut River Railroad Co. for such balance as may be due to the party of the second part monthly, from the business passing over the Yermont Yalley’ road, not exceeding thirty thousand dollars monthly on an average, and has also given an order upon the Cheshire Railroad Co. for such balance as may be due to the party of the second part to the amount of ten thousand dollars per month for the space of two years, and afterwards to the amount of twenty thousand dollars per month, now, it is agreed by the parties hereto that all money received by the parties of the first part on the orders aforesaid shall be applied free from any claim for interest to the payment of the rents for the different roads herein specified as the same become due.” In reference to the meaning' of the words “ in due course of settlement between the roads now in practice,” the master found: “ The Rutland Railroad connects with the Cheshire Railroad at Bellows Falls, and, with other railroads, they form a line from points westward to Boston, over which business is done for which collections are made and balances at stated times'are remitted between the companies. These balances, on account of the greater flow of business eastward, are always largely against the Cheshire Railroad Co. on this part of the line, and in its favor on the part toward Boston. By the usual course of ■ business a large part of the collections for this line of roads is made by that terminating in Boston. At that time' monthly balances between that and the next road in the line were struck as soon as could conveniently be done after the expiration of each month, and the amount paid over, and then the balances between that and the next road were struck and the amount paid over and so on in succession throughout the line. The balances between the Cheshire Railroad Co. and the operators of the Rutland Railroad would not be struck until about the 25th of the succeeding month.” The trustees and managers entered into the possession of the property under the contract of lease, and continued in its enjoyment until June 21, 1873, when the defendant Central Yermont Railroad Co. succeeded to their trust and took the property subject to all the liabilities imposed by said contract of lease. Disputes having arisen between the parties, payment was stopped upon the aforesaid Cheshire order until the execution of a further written agreement between the petitioner and the Central Yermont Co. upon Feb. 25, 1876, in modification of the contract of Dec. 30, 1870. This agreement was, known as the contract of modification, and the Central Yermont Co. continued to possess the property under it down to and at the time of the hearing before the master. Its provisions, so far as material, were as follows: “ Whereas, A certain contract in writing, dated Dee. 30, 1870, was heretofore entered into by the Rutland Railroad Co. of the first part, and J. Gregory Smith, Joseph Clark, Worthington O. Smith and Benjamin P. Cheney, trustees and managers of the Vermont Central and Vermont & Canada Railroads of the second part, which is hereby referred to as part hereof: And Whereas, Said trustees and managers, for the purpose of securing the payment of the rent provided by the terms of said contract to be paid the said Rutland Railroad Co., drew theirs two several orders in favor of said Rutland Railroad Co., to wit: One upon the Connecticut River Railroad Co., and one upon the Cheshire Railroad Co., both dated January 30, 1871, and both accepted by the respective Railroad Cos. upon which they were drawn, which orders and acceptances are referred to as part hereof : And Whereas, Certain controversies have arisen between said Rutland Railroad Co. and the Central Vermont Railroad Co., successor in said trust, as aforesaid, touching the rents due and to become due to said Rutland Railroad Co., under said contract of Dec. 30, 1870, assignment of leases and orders drawn and accepted as aforesaid, as well as in respect to said Addison Railroad and various other matters. , Now for the purpose of effectually settling and terminating said controversies and all of them, and every and all matters of dispute, claim or cpiestion of every name, nature or description, that can, or may now exist between said Rutland Railroad Co. and said J. Gregory Smith and others, trustees and managers as aforesaid, or said trust whereof they were trustees and managers, or the Central Vermont Railroad Co. successors in said trust as receiver’ and manager, and in consideration of the settlement and adjustment of all such disputes and controversies : It is hereby mutually covenanted and agreed by and between said Rutland Railroad Co. of the first part, and said Central Vermont Railroad Co., receiver and manager as aforesaid, and in its capacity of receiver and manager only, of the second part, as follows: Article 1. From and after the first day of Februrary, 1876, the party of the second part hereto agrees to pay to the party of the first part as rent for the use, management and control of said Rutland and Addison Railroads and the property connected therewith, or with either the sum. hereinafter mentioned, which shall be ascertained as follows : The gross, earnings of the Yermont Central, Yermont & Canada, Rutland & Addison Railroads shall be semi-annually added together. Of the aggregate sum so arrived at there shall be set apart thirty-six and one-fourth per cent, thereof as the share of said Rutland and Addison Railroads of said gross earnings, out of which share the party of the second part may retain seventy-five per cent, as an agreed proportion for the payment of all expenses of operating said Rutland and Addison Railroads and maintaining said roads, their structure and equipment in good order and condition-, -and keeping the same in repair and of all other expenses incumbent upon the party of the second partin the operation of said railoads under and as provided in said contract of Dec. 30, 1870; and said party of the second part shall pay over to the party of the first part, as hereinafter provided, the balance being twenty-five per cent, of said thirty-six and one-fourth per cent, provided however, and said party of the second part hereby agrees and does hereby guarantee that the amount ascertained as aforesaid, and payable to the party of the first part, shall amount to not less than the sum of two hundred and fifty thousand dollars for each and every year, commencing Feb. 1,1875, during the continuance as modified hereby. And the party of the second part hereby covenants, promises and agrees to and with the party of the first part to pay said annual sum of two hundred and fifty thousand dollars, and in addition thereto, the sum of eight thousand dollars annually, as provided in said contract of Dec. 30, 1870, for the purpose of keeping up the organization of said Rutland Railroad Oo. and of paying the incidental expenses thereof. Said sums to be paid in equal monthly installments and on the last day of each month during'the time said party of the second part shall hold and possess said railroads under said contract as modified thereby. And it is hereby-furtlier understood and agreed that if in any year said twenty-five per cent, gross earnings of said Yermont Central, Yermont & Canada, Rutland & Addison Railroads shall exceed said sum of two hum dred and fifty thousand dollars, the amount of such excess shall be paid to the party of the first.part by the party of the second part semi-annually, and within thirty days from and 'after the first days of January and July of each year. The party of the second part also agrees to keep accurate accounts of said gross earnings, and the books and vouchers pertaining to said accounts are to be open to the inspection and examination of the president and treasurer of said party of tlie first part, or either of them. The foregoing provisions of this article to be in lieu of and to stand in place of the provisions of said contract of Dec. 30,1870, in relation to the rents payable for the use of said "Rutland and Addison Kailroads.” The modification further provided that payments upon the Cheshire order should be forthwith resumed at the rate of $20,000 per month. Previously to July, 1883, the rent had been paid as follows : Of the $21,500 due on the last day of each month $1,500 had' been paid directly by the Central Vermont Co. when due. The remaining $20,000 had been paid by the Cheshire Co. upon the order about the 25th of the month after it fell due. No claim was made to recover anything before July, 1883. Subsequently to that time the $20,000 monthly which came by way of the Cheshire Co. continued to be paid as before about the 25th of the month after it fell dire; and the first claim of the petitioner was for interest on this $20,000 from the last day of the month until the time when it was actually paid from month to month. It did not appear that the petitioner had ever objected directly to the defentant as to this manner of procedure. It did appear that such objection had been made to the Cheshire Co., and that duplicate receipts were taken by that company from the petitioner, which specified the date of payment, and one of which was sent to the defendant Central Yt. Co. The second claim of the petitioner was that since July, 1883, the monthly payment of $1,500 had been withheld entirely by the defendant. This the defendant admitted, but claimed that it had properly retained these sums and paid them to the State as taxes in virtue of the provisions of No. 1, Acts of 1882, and amendments thereto. The following are the sections relating to this controversy : “ Sec. 1. .Funds for the payment of State expenses shall be raised by direct State taxes upon tlie corporate franchise or business in this State of railroad, insurance, guarantee, express, telegraph, telephone, steamboat, car and transportation companies, savings banks, savings.institutions and trust companies as provided in this act, and shall be payable in money to the State treasurer for the use of the State.” “Sec. 2. Every corporation, person or persons owning or operating a railroad in this State, whether as owner, lessee, receiver, trustee or otherwise, shall pay a tax to the State on the entire gross earnings of such railroad, if such railroad is situated wholly within the State. If such railroad is situated partly within and partly without the State the tax shall be upon such proportion of the entire gross earnings of such railroad as the mileage of trains run in this State bears to the mileage of all tlie trains run on the entire main line of the road.” “Sec. 12. The tax upon such earnings shall be rated according to the earnings per mile of road in this State, and is hereby assessed, at the rate of two per cent, on the first two thousand dollars a mile or total earnings of less than that sum; at the rate of three per cent, on the first thousand or part thereof above two thousand dollars a mile; at the rate of four per cent, on the first thousand or part thereof above three thousand dollars a mile; and when the earnings exceed four thousand dollars a mile, at the rate of five per cent, on'all earnings above that sum.” “ Sec. 13. Such a tax shall be payable one-half semi-annually in the months of February and August, and shall be based upon the gross earnings during tlie six months terminating with the last day of December or June next preceding.” “ Sec. 14. When a railroad is operated in this State by a corporation, person or persons by virtue of a lease or other contract, the aforesaid tax shall be paid by the lessee of such railroad or holder of such contract as the case may be; and the said tax shall be charged against and deducted from any payments due or to become due the lessor of such railroad, or person, persons or corporation granting such contract, as the case may be, on account of such lease or contract; unless in the provisions of such lease or contract it is stipulated otherwise.” The master found that in accordance with the foregoing act the defendant had actually paid to the State as taxes the greater part of the sums so retained; further that the gross earnings upon which these taxes were assessed largely “ accrued from transportation of persons and property between other States and countries through this State; and between this State and other States and countries.” The first payment of taxes was due in August, 1883, for the half year ending June 30. It was paid about August 30 by the defendant, who notified the petitioner of the payment September 12, inquiring at the same time how it should be settled. Thereupon the treasurer of the petitioner addressed to the defendant the following letter, dated September 19,1883. “ Dear ¡Sir: Yours of September 12 was received in due season, and contents carefully considered, and after consultation with the attorneys of this corporation, I will say in reply, the Rutland Railroad Co. claims that the tax referred to in your favor of the 12th inst. to be invalid against said company, and that this company is entitled to its rent in full as stipulated in its lease. Accordingly we demand payment of the same in full without deduction on account of said tax, we leaving the matter to stand as before in order to preserve our legal rights in the premises unprejudiced.' Of course the matter of settlement and litigation of the question involved'will go on with amicable spirit and without misunderstanding. Yours very respectfully, JOHN A. MEAD, Treasurer.” There was no evidence of any further protest on the part of the defendant at any time against the payment of these taxes, nor of any further objection on the part of the petitioner to their payment, nor of any acquiescence therein up to the filing of the petition in the case Nov. 10, 1886. It appeared that after the execution of the contract of modification disputes arose as to the respective liability of the parties for the payment of taxes thereunder; and that the petitioner brought a bill to the March term, 1877, of the Rutland County Court of Chancery, praying for a construction of the modified contract in that respect, and that the defendant be decreed to pay all taxes which had been or might thereafter be assessed “ on the real estate of the orator.” This suit was finally determined at the January term of the Rutland County Supreme Court, 1878, when the following mandate was handed down : u It is adjudged that said decree of the Court of Chancery be reversed and that said cause be remanded to the Court of Chancery with directions that the defendants, its successors and assigns are liable to pay all taxes that have been and hereafter shall be, during the time of the contract between the orator and defendant legally assessed upon any and all property of the Addison Railroad Co., and that the defendant is not liable,to paj7 taxes assessed upon the property of the Rutland Railroad Co., without costs to either party.” The reference in the mandate to the taxes upon the property of the Addison Railroad Co. is immaterial here. 1. The petitioner is entitled to interest on the deferred payments. By the terms of the contract of modification the rent was payable on the last day of each month. In point of fact $20,000 of it was not paid until about the 25th of the succeeding month. The defendant is liable for interest from the time it fell due until it was actually paid. The Cheshire order was not accepted by the petitioner as a payment, but simply as a security, and the petitioner was bound to account for only so much as the security produced. The provision in the original contract that the sums received on this order should be applied in payment of rent free from any claim as to.interest had reference to the condition of things under that contract, where the payments upon the order were received by the petitioner before the rent fell due. 2. The defendant had no right to retain from the rent the sums paid by it as taxes. (a) This tax was not a tax against the petitioner, but against the defendant. Both the original contract and the contract of modification are silent as to tlie payment of taxes. This being so any tax against tlie property, franchise, or income of tlie petitioner should be paid by it, for they belong to tlie petitioner ; any tax against the use of the road should be borne by the defendant, for that belongs to the defendant. This is not a tax upon the property, nor the income, nor the franchise. Philadelphia, &c., Steamship Co. v. Pennsylvania, 122 U. S. 326. • It is a tax simply and solely upon the business and should be paid by the defendant who originates, controls and owns the business. (l)) Admitting that this was a tax against the petitioner, the State had no right to collect it in that way. The defendant had promised to pay the petitioner a certain sum annually. The act directs the defendant to pay a portion of this to the State, instead of paying it to tlie petitioner, and in this violates the’ obligation of the contract and is void. Murray v. Charleston, 96 U. S. 432 ; Hartman v. Greenhow, 102 U. S. 672. This is not like a tax laid upon the leased property, and which the lessee may pay to protect himself in tlie possession of the property. Even such a tax the lessee could not pay at the expense of the landlord unless in all respects valid. Wood Land. & Ten. § § 685-7, 690; Clarlt v. Cooledge, 8 Kansas 189. (e) This tax is not valid. It is a tax upon the gross receipts derived from interstate commerce. It is therefore, an interference with that commerce, and as such unconstitutional and void. Welton v. Missotori, 91 IT. S. 275; Bobbins v. Shelby Co., 120 IT. S. 493 ; 1 Vabash, St. Louis db Pacific R. R. v. Rlinois, 118 IJ. S. 557; Fargo v. Stevens, 121 IT. S. 230 ; Philadelphia, etc., S- S. Co., v. Pennsylvania, 122 IT. S. 326; State V. Woodruff S. db P. Coach Co., -(Ind.) 15 N. E. Rep. 814; D. db H. Carnal Go., v. Penn., 17 At. Rep. 175. If the law is void the petitioner is clearly entitled to recover what has been paid under it. The defendant promised to pay the petitioner certain sums. Those sums it has not paid. As an excuse for not having paid them it sets up this act. Clearly if the excuse fails the sums are still duo. Equally clear is it that the justification does fail if the law is unconstitutional; for nothing is better settled than that an unconstitutional act can justify no one. “ An unconsitutional act is not a law; it binds no one and protects no one.” Little Rook, dec. Rd. Go. v. Worthen, 120 U. S. 97; ILelley v. Raines, 4 Cray 83; Ma/rbury v. Madison, I Cranch, 177; Osborn et al. v. Bank, 9 Whe.at. 830; Patterson, J. in Van Horne v. Borronee, 2 Dali. 308; Strong v. Daniel, 5 Ind. 348; Sumner, et al. v. Beeber, 50 Ind. 341; Woolsey v. Dodge, 6 McLean 14 Meagher v. GoumLy of Storey, 5Nev. 244; I Kent 449 ; Elliot v Swartwout, 10 Pet. 137; ü. S. v Lee, 106 U. S. 196 ; Norton v. Shelby Go., 118 TT. S. 425, 441; Ripley v. Gelsion, 9 John, 201. The fact that the profession may at some time have believed that the Federal Court would, or have understood that the Federal Court had held a similar law constitutional does not help the defendant. If this law is now void it has always been. This is not at all the case of a contract made in view of a judicial interpretation of a statute. In that case the parties contract with reference to such interpretation. They have consented to be bound by it and therefore they ought to be. But no decision can be found where it has been held that a party can be deprived of his property against his will in virtue of .an unconstitutional enactment. And that is just what the defendant contends for here; for here the contract was made long before the act was passed, and the petitioner has from the first protested by letter and by the institution of this suit that the law was invalid. 1. The petitioner can claim no interest on the deferred payments. The report fairly shows that the payment of this $20,-000 upon the Cheshire order was a payment of so much rent, and not merely a payment of so much on account of rent, and that therefore no claim of interest thereon survived. Moreover the stipulation in the original lease that all sums received on the order should be applied to the payment of rent free from any claim for interest is in force under the modified contract, and controls this question. 2. The defendant may retain the sums paid by it as taxes. The lease is silent upon this subject. When nothing is said in the lease the rule is that the lessor is liable for taxes, and that if he does not pay the lessee may and reimburse himself out of the rent. Taylor La/nd. <& Ten. § § 341, 395. It has once been held in a suit-between these same parties that the petitioner was. liable for the taxes assessed against the leased property. 3. This tax is in essence a tax against the Rutland railroad, and so against the petitioner as if it were directly upon the property of the petitioner ; and is such a tax that it might be paid and retained by the defendant either at common law or under the Act of 1882. 4. The act is not unconstitutional. It is not a tax upon the gross receipts, but upon the franchise the value of which is estimated by a reference to the gross receipts. Minot, Jr., v. Philadelphia, Wilmington c& Baltimore R. R. Go., et al., 18 Wall. 206; Thompson v. Union Pacific R. R. Go., 9 Wall. 599; Union Pacific R. R. Go., v. Peniston, 18 Wall. 5; Hamilton Mfg. Go. v. Mass., 6 Wall, 632; Body. of Smirujs v. Goite, 6 Wall. 594; P. c& P. P. P. Co. y. Penn., 15 Wall. 206; Minot v. P. W. c& B. R. R. Go., 18 Wall. 206; Osburn v. II. 8. Bank, 9 Wlieat. 859 ; Brown v. Maryland, 12 Wheat. 444; P. db W. P. P. Go. v. Maryland, 10 How. 376; Prov. Bank v. BilUngs, 4 Pet. 563; Pror. Inst. v. Mass., 6 ■Wall. 611. 5. Even if the law was in fact unconstutional, the defendant had the right, and it was its duty to treat it as valid until its validity was declared. Cool. Tax. 559 ; Session v. Botts, 34 Tex. 335; People v. Solomon, 54 111. 46. The petitioner is in a Court of Equity asking affimative relief. It must therefore do equity, and the relief song]it must not be unconscionable or inequitable. I Sto. Eq. Jur. §64, e; I Redf. Railways 76 ; High Eq. Rem. 436-7 ; I Wood R. R. Law, 455 and note. The petitioner might have enjoined the defendant from the payment of these taxes. The defendant couldnothave refused to pay without subjecting itself to severe penalties. Allen v. Baltimore & Ohio R. R., 114 U. S. 311-314; Dodge v. Woolsey, 18 How 331; Osborne v. U. S. Bank, 9 Wheat. 739; Gammings v. N. Bank, 101 U. S. 154; Pandexter v Greenhow, 1L4 U. S. 270. Hence it was fairly the duty of the petitioner to do this, and not having established the invalidity of the law in that way it ought not to be allowed to assert it now. The notice to the defendant from the treasurer of the petitioner was not sufficiently, definite. Telegraph Go. v. Alabama, 132 ÍJ. S. 477 ; Potterdamy. Telegraph Go., 127 U. S. 411.
63 Vt. 34Arbuckle v. Walker (1890)
 Ejectment. Possession. Husband and wife. 1. When the grantee, without disclaimer, enters into the possession of premises whose boundaries have been definitely and permanently marked by the grantor, his possession will be co-extensive with such bounds. 2. The defendant owned a building lot, the boundaries of which he mark-ed by permanent monuments, and upon which he erected a dwelling. Subsequently he conveyed to his wife and thereafter occupied in her right. One line as indicated and a portion of the cornice of the house were upon the plaintiff’s land. Held, that ejectment would not lie against the defendant husband alone.
63 Vt. 38Verder's Ex. v. Verder (1890)
General assumpsit for the amount of a promissory note. Plea, the general issue. Trial by court at the September Term, 1889, Rutland County, Powers, J., presiding. Judgment pro forma for the plaintiff. The defendant excepts. The case appears in the opinion. The plaintiff must show demand and notice to charge his endorser, although the note was overdue when the endorsement and transfer were made. Oolt v. Barnard, 18 Pick. 260; Fash v. Harrington, 2 Aik. 9 ; Ban. Feg.
63 Vt. 41Kelsey v. Kelley (1890)
 Eqwity. Married woman. Volu/ntary conveycui}ce in fraud of creditors. Evidence. 1. In a suit in equity against a husband and wife to charge the separate property of the wife, an item for money paid on account of having become surety for the husband, should be disallowed, it not appearing that the liability was incurred at the request or upon the credit of the wife. 2. R. being desirous of living with the defendant wife, his daughter, expended money in repairs upon her house for his own convenience, and advanced her 5200 in money. He afterwards boarded with her more than enough to exhaust the 5200. It was not understood by either party that any money was to be paid R., and it was not found that the repairs materially enhanced the value of the premises. Reid, that no indebtedness was created from the daughter to R. and that a creditor of R. could not charge her with the costs of the repairs. ?. Where one conveys his entire property conditioned for his life support, and the grantee does support him at an expense greater than the value of the property conveyed, a creditor cannot charge his debt upon the grantee after the death of the grantor, although that debt existed prior to the conveyance. 4. The question being as to the value of board, one who lives and keeps house in the vicinity may give his opinion in evidence.
63 Vt. 53Tarbell v. Vt. Mutual Fire Ins. (1890)
 Fire insurance. Knowledge of agent. Title when application is made. Subsequent alienation. Mortgage by deed absolute. 1. If the owner correctly represents the state of the title to “ a duly authorized agent ” of a fire insurance company, who thereupon makes out an application and procures from the company a policy of insurance for the owner, the policy cannot be avoided upon the ground that the title was not correctly stated in the application, for under R. Ii. s. 3617 the company is charged with the knowledge of the agent and would be estopped from setting up that defense. 2. But where the policy by its own conditions is to become void upon an alienation of the property, unless written notice is given to the directors, the fact that such agent had full knowledge of and assented to a subsequent alienation does not conclude the company. 3. Tarbell purchased the premises, borrowing a portion of the purchase money of Thayer. Thayer took an absolute conveyance, giving Tarbell a bond to convey upon payment of the amount due him on account of the purchase. Tarbell was to insure for Thayer’s benefit, and applied to defendant’s agent, correctly representing the title, who procured a policy in the name of Thayer. Subsequently Tewksbury gave Thayer his notes for the amount due him from Tarbell on account of the loan towards the purchase price and also other indebtedness. Thayer conveyed to Tewksbury and Tewksbury mortgaged back. Tarbell was to repay Tewksbury the amount for which he had become liable to Thayer, and Tewksbury was to hold the title as security. Tarbell always had possession of the premises, and neither Thayer nor Tewksbury claimed any but a mortgage interest. The policy never was assigned by Thayer. Held, that while the policy might at first have been valid to insure the respective interests of Thayer and Tarbell, since the title was correctly represented to defendant’s agent who took the application, the subsequent transfers were an alienation of the property, which would avoid the policy, no written notice having been given the directors in accordance with its conditions, and that the knowledge of its agent would not affect the company.
63 Vt. 60Taylor v. Moore (1890)
 Collector's bond. Parol evidence. Treasurer's warrcmi. Amendment of return. Qrmid last. Alphabetical abstract. 1. Tlie question being whether the defendant was qualified as collector of taxes, it may be shown by parol that he gave a bond which was accepted by the selectmen. 2. A treasurer’s warrant for the collection of taxes under R. L. 386 is a returnable process, returnable to the treasurer who issued it. He alone can allow an amendment of the officer’s return thereon, and he may allow almost any amendment in accordance with the facts and at almost any time, so that it does not affect rights already acquired upon the strength of the return. When amended the return is prima facie evidence for the officer making it. 3. In case the listers make up a taxpayers’ list because he has refused to return an inventory under oath, their judgment as to amount of his property, if unappealed from, is conclusive, provided they have information which legitimately tends to show the possession of such property by the taxpayer. And a letter to the listers from the town clerk of another town in this state stating that certain mortgages appear of record is information from which they may find that the amount of such mortgages is due the taxpayer. 4. R. L. 331, requiring the listers to make and lodge in the town clerk’s office on or before April 25 an alphabetical abstract of the personal lists, is satisfied if the grand list itself is lodged on or before that time. That section does not call for a statement of the property which makes up each individual list, but only for the total amount.
63 Vt. 75Gilchrist & Chamberlin v. Van Dyke (1890)
 Equity. Unacknowledged deed. Notice to subsequent purchaser. Possession. Injunction from interference with spring. 1. Simonds and Sutherland, who owned the spring in dispute, conveyed the same to the orators by deed which was properly executed by Simonds and which was signed, but not witnessed and acknowledged, as to Sutherland. Held, that the orators thereby acquired an equitable title to the spring which a court of equity would perfect. 2. The defendant took his title by deed from Simonds and Sutherland. Before acquiring title he had actual notice of the orators’ claim. The orators were also exercising acts of possession and ownership over the spring. Held, that either the actual or constructive notice to the defendant would defeat his claim as against the orators and render immaterial the question whether or not he paid value. 3. The spring was one of several which supplied an aqueduct from which the orators furnished thirteen families with water. Some of these springs were liable to be dry in dry seasons. Held, that the damages accruing to the orators from an interference with this spring were irreparable in the sense that they could not be properly estimated, and that a court of equity would enjoin such interference. 4. The master reported that the orators paid §7.51 for the spring and had since expended §15 or §20 upon it. Held, that this did not amount to a finding that the value of the spring was less than §50 in its changed condition, so that the suit should be dismissed for want of jurisdiction ; but, without the expression of an opinion as to whether the orators were entitled to a decree upon the report as it stood, the cause was remanded with instructions to recommit the report to the master to find'the value of the spring and whether theorators began their suit claiming in good faith that it exceeded the value of §50.
63 Vt. 80State v. Wade (1890)
 Charge of Court. Intoxicating liquor. Original packages. Presumption of irmocence. 1. The trial court is bound to comply with a request to charge only so far as it is applicable to the evidence in the case on trial. 2. There being no evidence tending to show that the respondent brought the liquors in question from a foreign country or a sister state, the court properly refused to tell the jury what the law might have been in that event. 3. Jt is a violation of law to sell or keep for sale liquors imported from foreign countries, unless contained in the original packages ; and the court will take notice whether, under the laws of the United States, they could have been lawfully imported in the packages in which they were found. 4. A room where liquor is unlawfully kept is none the less a common nuisance because other liquor may be lawfully kept there. 5. A charge that the respondent was presumed to be innocent of the complaint against him, and that the burden was cast upon the State to prove beyond a reasonable doubt that the liquors kept by the respondent were kept for the purpose of unlawful sale, sufficiently answers a request that the legislature cannot compel a respondent to prove his occupation a lawful one, and that the keeping of the liquor was to be presumed lawful until the contrary was shown.
63 Vt. 86Bliss v. Little's Adm. (1890)
Appeal from a decree of the Probate Court distributing the estate of Daphna D. Little. Trial by court at the September term, 1889, Washington county, Boss, J"., presiding: The court affirmed the decree of the Probate Court, to which the appellant excepted. The case appears in the opinion. The notes are barred by the neglect of the administrator to exhibit tliein in offset before the commissioners. Probate Ooiirt v. Q-ale, 47 Yt. 473 ; Stearns v. Stecurns, 30 Yt. 213, 217, 218 ; Allen v. Bice, 22 Yt. 333. The administrator was not bound to present these notes in offset. The appellant had no claim against the estate, for the claim which he presented to the commissioners was wholly disallowed by them, and their decision unappealed from is conclusive. It is only when there is a claim against the estate that the administrator is bound to exhibit claims in famor of the estate for offset. R. L. s. 2127 ; R. St. s. 8, p. 278 ; Allen v. Rice, 22 Vt. 333.
63 Vt. 91Cunningham v. Caldbeck (1890)
This was an action for slander, and was heard upon the plaintiff’s demurrer to the defendant’s jilea at the December term, 1889, Bennington county, Tyler, J., jiresiding. The demurrer vras sustained, and the defendant excejited. The suit was made returnable to the December term, 1889, and at that term the defendant filed the following jilea : “ And the said defendant in his own jirojier person, comes and says, that this court ought not to have or take further cognizance of the action aforesaid, because he says that the writ in suit was made returnable before the County Court to be held at Bennington, within and for the County of Bennington, on the the first Tuesday in December, A. D. 1889. Said defendant avers that the writ in said suit was issued. on the 13th day of November, A. D! 1889, at Bennington, in the County of Bennington and State of Yermont, without this that said writ was ever issued at any other time or at any other jilace. Said defendant avers that said writ was served ujion him, the said defendant, on the 19th day of November, A. D. 1889, at St. Johnsbury, in the County of Caledonia, and State of Yermont, without this that said writ was ever served njion said defendent at any other time or at any other jilace. Said defendant avers that in said writ and declaration the said plaintiff has declared against the said defendant in an action on the case in three counts for dibel. Without this that the said plaintiff in said writ and’declaration has alleged or declared for any other action, cause, or causes of action. Defendant avers that said suit was not commenced on prosefeuted in whole or in part, to recover upon any other claim, demand, debt, action, cause, or causes of action. Said defendant refers to the said writ and declaration now on file in the above entitled cause, and makes the same a part hereof. • And the said defendant avers that said suit was not, and is not commenced or proscuted in whole or in part to recover in an action of ejectment or trespass on the freehold, nor in whole or in part to recover any debt or demand arising from the sale or license to use a patent right, nor for any promissory note given in whole or in part for the same, nor in whole or in part to recover in an action of replevin, nor an action of cmclÁta querela, nor an action of habeas eorpits, nor a writ of review, nor an action • to recover upon any recognizance, nor action to recover upon a bail bond, nor an action in favor of an executor or administrator, nor an action on a bond, nor an action on a bond taken by or to a Probate Court, nor an action to recover any penalty or fine, nor was the said plaintiff: or defendant or either of them at the time of the issuing of said writ or at any other time a railroad company, and said defendant avers that at the time of the issuing and service of said writ and at all times between and including said day when said writ was issued, and said day when said writ was served, the said plaintiff did not reside in the said County of Bennington in the State of Yermont. Said defendant avers that said plaintiff at the time of the issuing and service of said writ, and at all times between and including said day wlien said writ was issued, and said day when said writ was served, did reside at St. Johnsbury, in the County of Caledonia and State of Yermont, and not elsewhere. Said defendant avers that at the tine of the issuing and service of said writ, and at all times between and including said day when said writ was issued, < and said day when said writ was served, he, said defendant, did not reside in the said County of Bennington. Said defendant avers that at the time of the issuing and service of said writ and at all times between and including said day when said writ was issued, and said day when said writ was served, he, said defendant, did reside at St. Johnsbury in the County of Caledonia and State of Yermont, and not elsewhere. Said defendant avers that the said supposed cause of action and each and every one of them in the said writ and declaration mentioned, if any such have accrued to the said plaintiff', accrued to said plaintiff out of the jurisdiction of this court, that is to say, at St. Johnsbury, in the County of Caledonia and State of Yermont, and not at Bennington Comity aforesaid, nor elsewhere within the jurisdiction «of this court, and this the said defendant is ready to verify. Wherefore he prays judgment whether the court can or will take further cognizance of the action.aforesaid.” This is not a plea in abatement and should not be treated by the rigid rules applicable to such pleas. It sets up a substantial defense and one expressly given by statute, N'. L. s. 889. The plea tested by any rule is good. Gray v. Powers, 24 Yt. 533. This plea requires all the formality and certainty of a plea in abatement. Trombly ds Sax v. Qla/rh, 13 Yt- 118, 122; Quiver v. Balelí, 23 Yt. 618; Essex v. Prentiss, 6 Yt. 47; Oonn. c§ P. B. B. Go. v. Bailey, 24 Yt. 472.
63 Vt. 95Barre v. Coventry (1890)
Assumpsit by tlie town of Barre against tlie town of Coventry for support furnished one E. A. Clark, a pauper, in the summer of 1887. Heard at the March term, 1890, Washington county, Powers, J., presiding, upon the report of a referee. Judgment,proforma, for the defendant. The plaintiff excepts. The facts material to the decision of the case appear in tlie head note and opinion.
63 Vt. 96Towle v. Richardson (1890)
Exceptions from tlie City Court of Burlington, Peck, J. Tlie action was assumpsit, and the defendant was arrested as an absconding debtor, September 2d. September 16tli the plaintiff obtained judgment and the defendant was again arrested on the execixtion which issued as a carpías.
63 Vt. 98Devino v. Central Vermont R. R. (1890)
 A Pleader must state facts, not conclusions. Dwplicityy. 1. In an action for negligence it is not enough, to state that the defendant was negligent. The count must set forth the facts from which the negligence results. 2. A count declaring upon the negligence of the defendant whereby the plaintiff and his wife were injured in the same accident, and claiming damages for the injury to the plaintiff himself, and also for the loss of the wife’s services, is not bad for duplicity.
63 Vt. 104Tucker's Will v. Admr. of Tucker's Estate (1890)
This was an appeal from a cleuree of the Probate Court for the Randolph District decreeing the remainder in Lyman PL Tucker’s estate to the administrator of Ezra Tucker. Heard upon an agreed statement of facts at the December term, Orange county, 1889, Rowell, J., presiding. The court reversed the decree of the Probate Court, pro forma. The administrator of Ezra Tucker, appellee, excepts. The facts appear in the opinion.
63 Vt. 106Cushing v. Fenn (1890)
Justice ejectment against the defendant for holding over. The defendant appealed the case into the County Court where judgment was entered against him upon his failure to show cause for a continuance, and the case referred to the clerk for an assessment of damages. Heard upon report at the February term, 1889, Orleans county, Taft, J., presiding. Judgment for both sums reported and costs. The defendant excepts.
63 Vt. 108Gifford v. Rutland Savings Bank (1890)
 Savings bcmk. By-laws. Assent by depositor. Negligence in paying over deposits. 1. Although one of the by-laws provides that the depositor shall subscribe-his name to the signature book as a means of assenting to the rules and conditions therein contained, -such assent may be shown in other ways, as that he received and kept his deposit book containing such rules and conditions. 2. A by-law of a savings bank providing that the institution will not be-responsible if money ip paid to a person not entitled thereto upon presentation of the deposit book, unless notice of the loss of such book has been given, is reasonable and binding if assented to by the parties. 3. Such by-law will not excuse the bank if it pays the money undei circumstances which ought to have aroused the suspicions of a reasonably prudent man. 4. Held, that where the depositor had never been at the bank and was not known to the officials, and they had never seen his signature, the money having been sent for deposit by another person by letter, the bank was not negligent in paying the amount on deposit to a thief, who presented the book, said that the money had been sent by letter, in answer to the question, and did nothing suspicious except to write his name awkwardly.
63 Vt. 116Wells' Estate v. Congregational Church (1890)
This was an appeal from a decree of the Probate Court for the District of Chittenden, decreeing that Rebecca Wells had a homestead in the estate of her husband, Oliver Wells, and ordering the same set out. Heard at the September term, Chittenden county, 1889, Munson, J"., presiding, upon an agreed statement of facts. Judgment proforma reversing the decree of the Probate Court, and adjudging that the said widow had not homestead. The Congregational Church of Underhill is the appellant, and the administrator of Rebecca Wells, apj>ellee. The appellee excepts. Oliver Wells died in November, 1887, and his widow, Rebecca, December 13th, 1888. The will of Oliver Wells was probated November 28, 1887, but no executor qualified until January 16, 1889. The remaining facts appear in the opinion. The widow did not during her lifetime elect whether she would take her homestead and dower or under the provisions of the will. Hence, her estate may elect now. Hathaway v. Hathaway, 44 Yt. 658. The fact that she continued in the use of the property does not constitute an election. She was entitled to the use of it until an executor or administrator was appointed on her husband’s estate, which was not until after her death. The homestead belonged to her as a matter of right, and she could only be divested of it by her election. In this case she never made any election, and there was nothing in the will which required her to make one, since there was nothing to indicate that the bequest was to her in lieu of homestead. llcmen v. Sackett, 15 N. Y. 372; I Pom. Eq. Jur. 546. The widow having entered upon the estate given her by the will and enjoyed it, her representatives cannot now repudiate her election and claim a homestead. Sanford v. Jackson, 10 Pai. Oh. 269 ; Merrill v. Emery, 10 Pick. 510; Jones v. Powell, 6 John. Ch. 194; In re Zahrt, 94 N. Y. 610. In this case the provision of the will and homestead are so inconsistent that the widow cannot take both. Meaah v. Meach’s Estate, 37 Yt. 419 ; Dál/y v. Yinal, 1 Met. 57; Haven v. Hmeny 1 Sandf. Oh. 329 ; Pemberton v. Pemberton, 29 Mo. 409; Dun-cans. Dwiccm, 2 Yates 302; Poadley v. Dixon, 3 Puss. 201; Herberts. Wren, 7 Crancli.372, 379; Anthony v. Anthony, 55 Conn. 256; Ailing v. Ohatfielcl, 42 Conn. 276; 2 Pedf. Wills 752, 753; Oallahan v. Robinson, 3L. A. R. 597; StarJcY. Hv/nton, 1 Sax. Oh. 216 ; Savage y. Burnhami, 17 N. Y. 577; Tobias y. Ketchvm, 32 N. Y. 319; Vernon y. Vernon, 53 N. Y. 351; Dodge y. Dodge, 31 Barb. 413 ; Zoni v. Lord, 23 Conn. 327; LeFever y. Toole, 84 N. Y. 95. Tbe right to waive the provisions of the will was personal to the widow, and cannot be exercised by her heirs or representatives after her death. 2 Iiedf. Wills 764, §33 ; Welch v. Anderson., 28 Mo. 293.
63 Vt. 121Barron v. Smith (1890)
This was an action of replevin. Elea, the general issue. Trial by court, Taft, J., presiding, at the June term, 1889, Orange county. Judgment for the plaintiff as to all the property replevied, except the hay, which was not described in the writ of replevin. Judgment for the defendant for the return of the hay,one cent damages, and one cent costs. Exceptions by both parties. The plaintiff had attached the property in question as that of one John B. Locke upon two writs of attachment against him, by lodging copies of those writs in the town clerk’s office. The copies were lodged at the same time. The returns upon them were as follows: “State oe Yermont, ) At Corinth in said county this 10th day Orange County, ss. j of December, 1887, I then served this writ on the within named defendant, John B. Locke, by attaching as his property 100 fleeces of wool, 100 sheep, two cows, 75 tons of hay, 450 tin sap tubs, one evaporator, one ox cart, one mowing machine, horse rake, one single sleigh, one buggy wagon, one Prescott organ, 40 bobbin logs, on defendant’s farm, all the corn on the cob, all the potatoes in defendant’s cellar and 20 barrels of cider and the casks, and on the same day I lodged in the town clerk’s office in Corinth a true and attested copy of the original writ with a list and description of the property so attached, with this,, my return hereon thereon endorsed.” “ State oe Yermont, ) At Corinth in said county this 10th day Orange County, ss. j of December, 1887, I then served this writ on the within named defendant, John B. Lock, by attaching as his property 100 fleeces of wool, 100 sheep, 2 cows, 75 tons of hay, 450 tin sap tubs, one evaporator, one ox cart, one mowing machine, horse rake, one single sleigh, . one buggy wagon, one Prescott organ, 40 bobbin logs situated on defendant’s farm, all the corn on the cob in defendant’s corn barn and buildings, all the potatoes in defendant’s cellar and 20 barrels of cider and barrels, situated indefendant’s cellar, and on the same day I lodged in the town clerk’s office in Corinth, a true and attested copy of the original writ with a list of the properity so attached, together with this my return hereon, thereon endorsed.” These copies were lodged on December 10. The defendant Ijocke, was not notified of the attachment until Dec. 17. On Dec. 14, the defendant in this suit, claiming the attachment by the plaintiff was invalid, took the same property in execution. The court found the following statement of facts : “ At the time of said attachment by said Barron, in a suit -against JohnB. Locke, the said Locke was occupying a farm in Corintli, of several hundred acres ; he had purchased the land in separate parcels at different times; he was in the occupation of it all except that a Mr. Fowler occupied what was called the “Bowen” place, which was a small farm purchased by said Locke more than twenty years ago. The buildings upon the Bowen place, were situated about half a mile from the home buildings of said Locke, and said Fowler occupied a part of the buildings upon the Bowen place, and a part of the land, under a contract by which he carried on the land at the halves, having' that part of the buildings which he occupied with the land which he so carried on. At the time of the attachment by said Barron, the sheep in question were at the Bowen place,, at a barn occupied by Mr. Fowler, who had the care of the sheep. The tin sap pails referred to in the writ of replevin were never in the actual possession of the defendant. Mr. Locke occupied the Bowen place except the part occupied and carried on by Mr. Fowler. The cider replevied was in the cellar of the premises on the Bowen place, some of the casks being in that portion occupied by Mr. Fowler jointly with Locke, and some in that portion occupied by Locke alone. The mowing machine and hay rake were in a small building owned and occupied by Locke upon the Bowen place. The Bowen place was in fact a part of Locke’s farm, and occupied by him as sucli. The hay was in the barns on the Bowen farm, some in a barn occupied by Locke, and some owned by Locke and Fowler jointly in the barn occupied by Fowler.” The writ of replevin in this case described the following property: “ One hundred sheep, 20 barrels' of cider, 20 casks, one mowing machine, one horse rake, 100 fleeces of wool, two cows, 150 tin sap tubs or buckets, one evaporator, one ox cart, one single sleigh, one buggy wagon, one Prescott organ, a lot of corn on the cob and a lot of potatoes.” By virtue of it the officer replevied, “Eighty-six sheep, 12 casks cider, twro casks, one mowing machine, one horse rake, 150 sap tubs, 50 tons hay.” The description in the return was sufficient. Rond v. Bak&r, 55 Yt. 402; Btocklim, v. Gramjpton, 20 Yt. 263; Drake v.. Mooney, 31 Yt. 619; Fullam v. Strauss, 30 Yt. 433. The description in the plaintiff’s return was not sufficiently definite. Fullam v. Stearns, 30 Yt. 443 ; Pond v. Baker, 55 Yt. 400; Baxter v. Rice, 21 Pick. 197 ; Paul v. Burton, 32 Yt. 148; Rogers v. Fairfield, 36 Yt. 641; West Rimer Bank v. Gorham, 38 Yt. 649 ; Bryant v. Osgood, 52 N. H. 182. The plaintiff did not notify Locke forthwith as the statute requires.
63 Vt. 127Cleveland v. I. L. Pearl & Co. (1890)
Tliis was an action in general assumpsit for the price of certain wool. Plea, the general issue with notice of special matter. Trial by jury at the February term; 1890, Orleans county, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The plaintiff resides at Coventry and the defendants do business and reside at -Johnson, Vt. On June 16, 1888, the defendants purchased the plaintiff’s wool, which was then at his residence in Coventry.
63 Vt. 133Baker v. Ufford (1890)
Trespass and trover for tbe taking and conversion of one three-year old bay colt. Plea, the general issue with special plea in bar. Trial by jury at the April term, 1890, Lamoille county, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The opinion states the case. There was a variance between the allegation of the consideration in the replication and the proof. 1 Chit. PL 298, 384; 1 Greenl. Ev. (9th Ed.) 66-71; Allen v. Lansing, 10 Vt. 114; Wright v. Geer et al., 6 Yt. 151; Vail v. Strong, 10 Yt. 457; Ola/rk v. Todd, I D. Chip. 213 ; McDa/niels v. Bucklin, 13 Yt. 27!). And the court should have ordered a verdict. Derragon v. Village of Butla/nd, 58 Yt. 128. Hill’s testimony was not admissible to contradict the defendant’s witness, Whitney, upon an immaterial matter. Stevens et ad. v. Beach, 12 Yt. 585; 1 Greenl. Ev. 52, n. 2. A variance to be fatal must be a material one. Skinner v. Grcmt, 12 Yt. 456 ; 7 Lawson’s R. R. & P. §'3465. A formal variance in the statement of a consideration will be disregarded. Dwkee v. Vt. Gent. R. R. Go., 29 Yt. 127; Mallory v. Leach, 35 Yt. 156; Ammel v. Noonar, 50 Yt. 402; Patten v. Sowles, 51 Yt. 388; Lockwood v. Middlesex Mut. Assurance Go., 47 Conn. 557; Jones v. Dow, 142 Mass. 130; Gunningha/m v. Kimball, 7 Mass. 65; Burpee v. Spar hawk, 97 Mass. 341. In this case the evidence tends to support the consideration alleged. If there is no prejudice by reason of the variance the Supreme Court will not grant a new trial, but will permit an amendment of the pleadings. Gunningham v. Kimball, supra; Denham v. Bryant, 139 Mass. 110.
63 Vt. 137Wilcox v. Wilcox (1890)
This was an appeal from an order of tlie Probate Court for tlie district of Bennington. Heard upon petition and answer at tlie December term, 1889, Bennington county, Tyler, J., presiding. Judgment tliat tlie petitionee is tlie guardian of tlie petitioner and tliat lie account as such. Exceptions by tlie petitionee. The point decided appears in the opinion. The order to account was an interlocutory, not a final one, and the County Court should have dismissed the appeal sua sponte. Kimball v. Kimball, 19 Yt. 579 ; Adams v. Adams, 21 Yt. 162; French v. Winsor, 21 Yt. 102; Timothy v. Farr, 12 Yt. 13 ; Felton v. Sowles, 57 Yt. 382; Leach v. Leach, 50 Yt. 618.
63 Vt. 139State v. Roberts (1890)
 Homicide. Evidence. Implements of crime. Duty of State to produce evidence. Charge of cou/rt. Self-defense. Impeaching testimony, 1. Where the evidence tended to show that the deceased was murdered by being struck with a stick and pole, it is proper to produce and identify these articles upon the trial. 2. The defense to a charge of murder being that the respondents made the assault in self-defense, it is not permissible to show that after the respondents had gone some sixty or seventy rods from where the injured man lay, they requested a third person to go to his relief. 3. Where five doctors examined the injured man, all of whom are within the reach of process at the time of trial, it is not revisable error if the court below refuses to compel the State’s attorney to call them all as witnesses, after having improved a part. State v. Magoon, 50 Vt. 333 explained. 4. Held, that the court by its charge did sufficiently instruct the jury that one respondent might be convicted and the other acquitted. 5. Held, that the charge of the court fairly instructed the jury that the respondent was not obliged to retreat, before exercising his right of self-defense, unless there were means of escape which were apparent to him under the circumstances of the occasion. ■6. The testimony of the respondents themselves being that the deceased walked some distance after being struck before he fell, it is not error for the court to tell the jury that “ If the act was committed where the deceased fell it was not done in self-defense and it must have been done without legal justification or excuse.” 7. The court was not bound to instruct the jury that ‘1 men do not commit crimes without some motive prompting them to it.” 8. Nor was the court bound to distinguish between circumstantial and other evidence tending to establish the corpus delicti. 9. Where the respondents introduced evidence of contradictory statements ,, made out of court to impeach a witness for the state, the jury were properly told “that the law regards this kind of impeaching testimony as uncertain and somewhat unreliable.”
63 Vt. 148Spaulding v. Albin (1890)
 .Evidence. Wife of deceased husband. Decla/rations to show fraud. Fwudmgs of master. 1. Bill to vacate a set-off and establish a right of homestead. The oratrix claimed homestead through a former husband, and that the judgment in favor of the defendant against that husband upon which the homestead had been set-off was collusive, in that a certain note had been fraudulently incorporated in it. This note was not signed by the husband, but the defendant insisted in her answer that he had* promised to pay it, and had made payments upon it which were endorsed. The master reported that there was “ no proof of any kind ” before him as to these indorsements. Held, that it did not necessarily appear from this that the master failed to consider the answer as evidence, inasmuch as it was the fact of the payments and not the making of the indorsements to which the answer referred. 2. Although the testimony of the oratrix was received as to the whole case, no error can be affirmed if it appears from the master’s report that he did not consider any confidential communications between her and her deceased husband. 3. The oratrix in connection with other evidence of a fraudulent purpose, was permitted to show the declarations of her former husband. Held, no error, for if the declarations were made at the time of and in connection with the transaction they were admissible, and the court would not presume that they were made at any other time. 4. The husband continued in the possession of the premises after the set-off as before. Held, that his declaration, made while so in possession, that he was as much the owner of the farm as before the levy was admissible.
63 Vt. 155Parker v. Coture (1890)
Trespass for an assault with intent to ravisli, returnable to the City Court of Burlington. Trial by court, February 19, 1889, Peck, J. Judgment for the plaintiff for one hundred dollars damages and costs. The defendant excepts. The point decided appears in the opinion. Evidence of the plaintiff’s character should have been admitted. Sedg. Dam. 575-8; Shaekett v. Hammond, 46 Yt. 466 ; Hill. Rem. for Tor. 398.
63 Vt. 158King v. White & Hammond (1890)
This was a bill in equity, for an accounting. Heard upon the pleadings, a master’s report and exceptions thereto, at the December term, 1889, Windsor county. Taft, Chancellor, decreed, pro forma, that the orators recover eighteen hundred twenty dollars and their costs. The defendants appeal. The case fully appears in the opinion. The master reports that the partnership books were not correct. The fact that they appear to be is immaterial. Merriam v. Barton, 14 Yt. 501; Mott v. Hamrmgton, 15 Yt. 185; E. L. ss. 701, 728. The books are not conclusive. They are simply evidence. Caldwell v. Leiber, 7 Paige 483 ; Hearttv. Corning, 3 Paige 566-; Boyd v. Foot, Bosw. 110 ; 5 TJ. S. Dig. 839; Perry v. Banks, 14 Ga. 699 ; White v. Tuoker, 9 Iowa 100 ; Tuek&r v. Peaslee, 36 N. H. 167; Boise v. McGinn, 8 Ore. 466; Hunter v. Aldrich, 52 Iowa 442. The presentation of this claim to the commissioners on Harlow’s estate affects nothing, for they had no jurisdiction to hear it. Brown v. Est. of Summer, 31 Yt. 67; Sparhawk v. Buells Est., 9 Yt. 41; Herrick v. Belknap Est., 27 Yt. 698; Jones v. Cooper, 2 Aik. 54; Blackmer v. Blackmer, 5 Yt. 355 ; Graves v. Wake-field, 54 Yt. 317; Mann v. Mann’s Est., 53 Yt. 50; Green c& Roberts v. Chapman et al., 27 Yt. 239; Wiswell v. Wilkins, 4 Yt. 157; Beech v. Hotchkiss, 2 Conn. 425; Kendricks v. Tarbell, 27 Yt. 237; LaPoint v. Scott et al., 36 Yt. 633 ; Probate Court v. Winch, 57 Yt. 284; Hendrick v. Cleveland, 2 Yt. 329 ; Smith v. Bice, 11 Mass. 507; Hunt v. Hapgood, 4 Mass. 117 ; Sumner v. Parker, 7 Mass. 79 ; Oh. J. Shaw in Peters v. Peters, 8 Cush. 544; Sowles v. Quinn, 61 Yt. 356. One partner cannot maintain an action at law against his co-partner for an accounting. Holmes v. Higgins, 1 B. & O. 76 ; Smith v. Allege, 18 John. 245 ; Gomersall v. Gomersall, 14 Allen 60 ; Francisco v. Fitch, 25 Barb. 130; Morin v Martin, 25 Mo. 360; Hammond v. Hammond, 20 Ga. 556 ; Wiggin v. Cummings, 8 Allen 353; Burns v. Nottingham, 60 111. 531. There is no question before the court as to the statute of limitations. Spear da Carlton v. Newell, 13 Yt. 288. Stouyhton v. Lynch, 2 John. Oh. 209; Beacham v. Eckford, 2 Sand. Oh. 117; Limond v. Henderson, 47 Wis. 172; Stoughton v. Lynch, 1 John. Oh. 467; Andrews v. Andrews, 3 Bradf. 99; Hollister v. Barkley, 11 N. H. 501. There is no presumption of payment. Wells etm v. Morse, 11 Yt. 9 ; Martm v. Bowker, 19 Yt. 526 ; Todd v. Rafferty, 30 N. J. Ecp 251; Arnett v. Finney, 19 N. J. Eq. 117; McGlwig v. Gapehart, 21 Minn. 17; Hammond v. Hammond, 20 Ga. 556 ; Massayv. Tingle, 29 Mo. 137; 2 Lind. Part. 509 and note; Brewer v. Browne, 68 Ala. 210; Bradford v. Spyker, 32 Ala. 131; Wells v. Brown, 83 Ala. 161; Gcmsler v. Wharton, 62 Ala. 358 ; Foster v. Rison, 17 Gratt. 321; Jordan v. Miller et al., 75 Ya. 112; Hutchins v. Gilman, 9 N. II. 363; Miller v. Miller, 8 L. R. Eq. 199; Stanford v. Tuttle, 1 Yt. 82; Fa/rnam y. Brooks, 9 Pick. 212; Robinson v. Hook,4: Mason 139. Nor have the orators been guilty of laches. Wcvrrenr. Warren, 30 Yt. 530; Battell v. Matol, 58 Yt., 271; Atwater v. Fowler, 1 Eclw. Oh. 123; Sullivan v. Port-la/id db K. R. R., 91 IT. S. 806 ; Reynolds v. Sumner, 126 111. 58. The accounts as stated upon the partnership books are, under the circumstances of this case, conclusive. The orators with full knowledge, or the opportunity to obtain full knowledge, have for years acquiesced in that statement and settlement and cannot now object. McDaniels v. Bcmk of Rutland, 29 Yt. 230; Hyde v. Hyde et al., 50 Yt. 301. No interest is recoverable. There was no contract to pay interest, and Harlow did not neglect to pay over these sums after he was legally bounden to do so. The relation of debtor and creditor did not exist until after a demand. Braimerds v. O. T. Go., 29 Yt. 151; Sprague v. Sprague, 30 Yt: 183 ; Evans v. Beckwith, 37 Yt. 285; Blodgett's Est. v. Converse Est., 60 Yt. 110 ; Hall db Chase v. J. dé J. II. Peck, 10 Yt. 178; Chit. Con. 238 and note; 1 Chit. PI. 330; Miller v. Olark, 5 Lans. 388 ; Williams et al. v. Storrs, 6 John. 353; Mason v. Roosevelt et al., 5 John. 532 ; Ghaclworth v. Edwards, 8 Yes. 46. The orators’ claim is stale. Having for years acquiesced in this settlement, they cannot now overhaul it after it has become impossible to ascertain and do entire justice in the premises. Sullivan v. P. dec. R. R., 94 H. S. 806; Kerr. Fr. 304; 2 Bouv. Law Diet. 40; Daggett v. Helm, 17 Gratt. 96; Mo-Knight v. Taylor, 1 How. 161; Boswell v. Goalees, L. R. 27, Oh. Div. 424, 457; Sharp v. King, 3 Ired. Oh. 402-5 ; LeGum v. Governewr, 1 John. Cas. 436; Badger v. Badger, 2 Wall. 95 ; Marsh v. Whitmore, 21 Wall. 185; Godden v. Kimball, 99 H. S. 202 ; Brown v. Go. of B. V., 95 H. S. 161; Ra/yner v. Pearsall, 3 John. Oh. 578; Lind. Part. 464; Per. Tr. 869. Especially when the claim is not made until after the death. of the person against whom the relief is sought. Bell v. Hudson, 73 Oal.; Moore v. White, 6 John. Oh. 360 ; Ba/rnes v. Taylor, 27 N. J. Eq. 259; G. A. Sem. v. Keifer, 43 Mich. Ill; Jenleims v. Pye, 12 Pet. 241; Becleford v. Wade, 17 Yes. 96. The fact that the claim is not barred by the statute of limitations does not conclusively show that it is not stale. Each case is controlled by its own circumstances. Stout v. Sedbroolds Hears., 30 N. J. Eq. 187 ; Bell• v. Hudson, 73 Oal. 287; Harwood v. R. R. Go., 17 Wall. 81; Sullivan v. P. db R. R., 94 H. S. 811; Godden v. Kimmell, 99 H. S. 201; 2 Sto. Eq. Jur. 1820 et passim.
63 Vt. 169Geo. H. Fitzgerald & Co. v. Grand Trunk R. R. (1890)
 Obligation of Contract. Interstate Commerce Act. Rebates illegal at common law. 1. The obligation of a contract in law is that element of duty or promise which a party can be compelled to perform. 2. Before the passage of the Interstate Commerce Act the defendant promised to pay the plaintiffs a rebate of six dollars a car on 170 carloads of lumber, which theplaintiffs promised to furnish it for transportation. The plaintiffs delivered and the defendant transported 73 car-loads before and 97 after that act took effect. The defendant paid the rebate on the 73 cars. This suit was to recover it upon the remaining 97. The agreed case was that the plaintiffs should have judgment unless their right to recover was ‘ ‘ barred ” by the Interstate Commerce Act. Held, that the plaintiffs could not recover; for the contract was void at common law as a discrimination, and being void, the plaintiffs never had any right under it which could be barred. 3. Semble, since the Constitution of the United States expressly confers upon Congress power to regulate commerce between the states, which this was, any contract, like this, in reference to such commerce must be presumed to have been made in contemplation of the possible exercise of that power, and the obligation of such a contract would not be impaired thereby.
63 Vt. 175Foster v. Stevens (1890)
Trover for the conversion of certain personal property. Plea, the general issue. Elearcl upon an agreed statement of facts at the September term, 1889, Orleans county, Royce, Oh. J., presiding. Judgment for the defendant. The plaintiff excepts. The defendant justified as collector of taxes for the town of Derby, under a tax warrant issued to him by the town treasurer. The plaintiff claimed that his list was invalid because certain shares of stock in the Eastern Townships Bank were included in it by the listers. The Eastern Townships Bank was a Canadian corporation, located at Sherbrooke, in the Province of Quebec. The plaintiff claimed that the stock was not taxable in this State because exempted under R. L. 270, in that the bank paid taxes in Canada for all its stock. The paid up capital of the bank was $1,500,000. The Act of the legislature of the Province of Quebec under which the bank paid taxes upon its capital, so far as material to this case, was as follows: (“Assented to May 27th, 1882.) “HER MAJESTY, by and with the advice and consent of the Legislature of Quebec, enacts as follows: 1. “ In order to provide for tbe exigencies of the public service of this Province, every bank carrying on the business of banking in this Province, every insurance company accepting risks and transacting the business of insurance in this Province, every incorporated company carrying on any labor, trade or business in this Province, every incorporated loan company making loans in this Province, every incorporated navigation company running a regular line of steamers, steamboats or other vessels in the waters of this Province, every telegraph company working a telegraph line or part of a telegraph line in this Province, every telephone company working a telephone line in this Province, every city passenger railway or tramway company working a line of railway or tramway in this Province, and every railway company working a railway or part of a railway in this Province, shall, annually, pay the several taxes mentioned and specified in section three of this act, which taxes are hereby imposed upon each of such commercial corporations respectively. 2. “The term ‘bank’ includes savings banks; the term ‘ insurance company ’ comprises life, fire, inland, marine, guarantee and accident insurance companies, but does not include mutual insurance companies organized under the laws of this Province; the term £ incorporated loan company ’ includes building societies; the term £ incorporated company ’ does not include companies publishing newspapers or periodicals. 3. The annual taxes, imposed upon .and payable by the commercial corporations mentioned and specified in section one of this act shall be as follows: I. BANKS. (a) Five hundred dollars, when the paid up capital of the bank is $500,000 or less than that sum; $1,000, when the paid up capital is from $500,000 to $1,000,000; and an additional sum of $200 for each million or fraction of a million dollars of the paid up capital from $1,000,000 to $3,000,000; and a further additional sum of $100 for each million or fraction of a million dollars of the paid up capital over $3,000,000. (5). An additional tax of $100 for each office or place of business in the cities of Montreal and Quebec, and of $20 for each office or place of business in every other place.” The Eastern Townships Bank stock was exempt from taxation in this State because the bank paid taxes in Canada “ for all its stock.” B. L. 270. This was not a business tax, nor a license tax. It was a tax directly upon the corporation. A corporation has three kinds of property which may be taxed, viz : its real and personal property, its franchises, and its capital. Desty Tax. s. 72. This was not a tax upon its capital; nor upon the franchises. There was no attempt to measure the value of its franchises. Phila., déc., Steamship Oo. v. Penna., 122 IT. S. 376. It was a tax directly upon its capital, and the only kind of a tax which the bank could pay for “ all its stock.” Cool. Tax. 169 ; Desty Tax. 353. Such a construction carries out the spirit of the statute. Having been once taxed, this stock ought not to be taxed a second time. The word “ state ” is used in its generic sense and includes foreign countries. U. S. v. Freemcm, 3 How. 556; 2 Bap. & Law. L. Diet. Art. “ State.” The Eastern Townships Bank stock was taxable in Yermont. The Canadian tax was a franchise tax. Tennessee v. Whitworth, 117 U. S. 129; New Orlecms v. Houston, 119 U. S. 265; Farrington v. Termessee, 95 IT. S. 679; Mvnot v. Phil., Wilm. dé Balt. R. R. Oo., 85 H. S. 206; Provident Savings Inst. v. Mass., 73 U. S. 611; Oommomoealth v. Hamilton Mfg. Oo., 12 Allen 298; Commonwealth v. N. F. Slate dé Tile Go., 13 Allen 391; Pratt v. Street Oom. of Boston, 139 Mass. 559 ; Monroe Sav. Bank v. Rochester, 37 N. Y. 365. Certainly it was not a tax upon the shares of stock. The capital stock and shares of stock are not the same thing, and in order to entitle the shares of stock to exemption here, they, not the capital, must be taxed in the other State either to the stockholders or to the bank for the stockholders. Van Allen v. The Assessors, 3 Wall. 573; Queen v. Arnoud, 9 Ad. & El. N. S. 806; People v. Commissioners of taxes, 4 Wall. 244; Provident Savings Inst. v. Mass., 6 Wall. 611; First Nat. Panic v. Kentucky, 9 Wall. 353 ; Bradley v. -Illinois, 4 Wall. 450; Lumberger v. Bowse, 9 Wall. 468; Van Slyke v. Wisconsin, 11 Wall. ; National Bank v. Britton, 105 IJ. S. 322; Minot v. Phil., Wilm. cfe Balt. B. B. Co., 18 Wall. 206; Sturgis v. Carrier, 114 IJ. S. 511; Farrington v. Tennessee, 95 TJ. S. 679; New Orleans v. Houston, 119 IJ. S. 265 ; McCullock v. Maryland, 4 Wheat. 316; Springfield v. Springfield Bank, 87 Mo. 441; Lionberger v. Bowse, 43 Mo. 67-79; St. Louis Building c& Sav. Assn. v. Lightner, 42 Mo. 421; First National Bank of Hamnibdl v. Meredith, 44 Mo. 500; State Bank of Virginia v. City of Bichmond, 79 Ya. 113; City of New Orleans v. State National Bank, 34 La. An. 892; New Orleans v. Canal Bank, 32 La. An. 104; New Orleans v. N. O. & St. L. B., 27 La. An. 45 ; AUeghcmy Country v. Diamond Marrket, 123 Penn. St. 164; Pittsburgh’s Appeal, 123 Penn. St. 374; McKeen v. County of Northampton, 49 Penn. St. 519; Whitesell v. County of Northampton, 49 Penn. St. 526; Lycoming Couoity v. Gamble, 47 Penn. St. 106; Dwight v. Mayor and City of Boston, 12 Allen 316 ; Commonwealth v. Hamilton Mfg. Co., 12 Allen 298-309 and 310 ; Pratt v. Commissioners of Boston, 139 Mass. 559; Davenport v. Equalization Board, 64 la. 114; B. <& G. B. B. Co. v. Wake Co. Com., 87 N. C. 411; City of Utica v. Churchill et dl., 33 N. Y. 161-237; Gleen v. Dodge, 3 Cent. Rep. 283 ; Deming et dl. v.-Perr dicaries, 96 U. S. 193; Wheeloakv. Moulton.et dl., 15 Yt. 519. Taxation in another State does not exempt from taxation here. Bullock v. Guilford, 59 Yt. 516; Gatlin v. Hull, 21 Yt. 152; St. Albans v. Ga/r Go., 57 Yt. 68; v. Newark, 24 N. J. L. 315. The word “ state ” as employed in section 270 refers only to members of the United States, not to foreign countries. The action of trover cannot be maintained. The listers had jurisdiction of the person of the taxpayer. If they erred in judgment in overvaluing the property or in setting property in the list which was exempt, the taxpayer’s only remedy was by appeal to the board of civil authority. Osbornes. Inhabitants ofHammers, 6 Pick. 98; Bourne v. Gity of Boston, 2 Gray 494; Little v. Greenleaf, 7 Mass. 238;. Ilowe v. Gity of Boston, 7 Gush. 273; Lincoln v. Gity of Worcester, 8 Cush. 61; Bates v. Gity of Boston, 5 Cush. 93 ; Salmoncl, v. Hanover, 95 Mass. 119; Lavis v. Macey', 124 Mass. 193'; Stearns v. Miller et at., 25 Yt. 27; Babcock v. Granville, 44 Yt. 329; Bemis v. Phelps, 41 Yt. 1-6; Stewart v. Maple, 70 Penn. St. 221; GUnton School Districts Appeal, 56 Penn. St.. 315; Forward's School Districts Appeal, 56 Penn. St. 318;, Van Wagenen v. Board of Supervisors, 39 ■ N. ~W. Rep. 105 ;, Macklot v. Davenport, 17 la. 379; New Orleans v. R. R. Go., 37 La. An. 48; Schraiber v. Board of Assessors, 37 La. An. 912; R. R. Go. v. Commissioners, 87 N. O. 129-134; Baldwin v.-Gity of Elizabeth, 42 N. J. Eq. 11; Comstock v. Grand Rapids, 54 Mich. 641; McDonald v. Gity of Escamóla, 62 Mich. 555.
63 Vt. 185Bugbee v. Stevens (1890)
63 Vt. 186Benton v. Beattie (1890)
Trespass quare olausum fregit. Trial by 'court at tlie September term, 1889, Essex county, Taft, J., presiding. Judgment for the plaintiff. Tlie defendant excepts. The original declaration did not specify any particular lots, but named generally the plaintiff’s lands in Maidstone and Ferclinancl. The case was entered at the March term, 1888, and continued. Before the following September term the defendant had been adjudged an insolvent, and one Cochran appointed his assignee, who as' such assignee appeared and defended this suit. At the September term, 1888, the plaintiff was directed to specify those lots upon which he claimed trespasses, and thereupon named certain lots in Ferdinand,and also 20, 21, 22, 23, 24, 55, 56, and 58 in Maidstone. The court below found that the defendant had trespassed upon the plaintiff’s lands in Ferdinand and assessed the damages. If also found that he had trespassed upon lots No. 55, 56 and 58 in Maidstone, and assessed the damages. With reference to the alleged trespasses upon lots No. 20, 21, 22, 23 and 24 in Maidstone, it found that the defendant contracted with one Hawthorn to cut and haul to the river the timber upon certain lands in the town of Brunswick, and that in the execution of this contract Hawthorn and his men cut over the town line and onto the land of the plaintiff; that the defendant had no knowledge of such cutting and gave no consent thereto and was not negligent in respect to such cutting; that all the timber so cut went into the possession and control of the defendant and -was disposed of by him. The court-found the value of the timber somut to be $450.31, and included that, sum as damages in its judgment. No copy of the contract with Hawthorn was furnished the reporter, but the exceptions contained the following statement in reference to it: " It appeared, and was uncontradicted, that Hawthorn had a written contract to log certain lots in Brunswick belonging to defendant, that defendant pointed out the town line to Hawthorn, that the line was a plain one, that the defendant had no control over the workmen employed by Hawthorn; contract referred to.” At the close of the evidence the plaintiff asked leave to file new counts in trover. The following is the language of the bill of exceptions as to what occurred: “At the close of the evidence on Saturday afternoon, the plaintiff asked leave to file new counts in trover-. Same are referred to. ■ “ The defendant objected, saying- to the court that knowing what the law was as to tlawtho-rn’s Cutting, the cottnsel had not examined the plaintiff’s title as to these- lote on Brunswick town line, or the value, etc., of the stumpagethat the measure of the. plaintiff’s recovery was different in the- action of trespass, q. c. f. and trover and claimed that the court could not properly allow the new counts to be filed as to the town line lots, in any event, that by the new counts the plaintiff' would increase his. recovery. “ The court on Monday morning ruled that it would allow the new counts to be filed, provided the plaintiff would not claim to recover more damages than he could claim under the trespass q. c. f. counts, and when the plaintiff assented to this the court permitted the plaintiff to file the new counts. To which ruling the defendant excepted.” The defendant took numerous exceptions during the progress of the trial, and to the judgment, but the only one insisted upon was as to the action of the court in including; in the judgment the value of the timber cut by Hawthorn. The following was the material part of the count in trover r “ On the 1st day of December, 1882, at Maidstone, the plaintiff was possessed of 7500 spruce trees and 1000 fir trees which had been theretofore cut and were then lying on the plaintiff’s land. * * * But the defendant well knowing * * * converted the same to his own use, -which trees are apart of the same trees mentioned in the first three counts of said declaration as having been cut down by the defendant on lots numbered 19, 20, 21, 22, 23, 21, in said Maidstone.” This suit was begun before adjudication of insolvency. Hence, the assignee stands like a subsequent attaching creditor. Under the statute, as settled by decisions of this court, the assignee stands as to the property attached on the writ in this suit, like a subsequent attaching creditor. No recovery could be had in. an action quare elaiosum for the acts of Hawthorn and his men. They.were not the servants of the defendant, and he had no control whatever over them. Wood’s Mas. & Ser., 313. The new count in trover was improperly filed. It did not appear that it was for the same cause of action. In the case of Templeton v. Glogston, 59 Yt. 628, substantially such counts were held to be a mis-joinder. This amendment .affects the right of the assignee, for it really makes a new suit of it and permits a recovery which could not •otherwise be had. An amendment will not be allowed when it increases the liability of bail, receiptor, subsequent attaching creditor, or bona fide purchaser. Wright v. Brownell, 6 Yt. 435; Pond v. Campbell, 56 Yt. 674; Austin, v. Burlington, 34 Yt. 506 ; Drake Attach. 285. The statute does not permit the adding of a new count in trover, but simply .the joinder of one- in the first instance. To permit the introduction of such a count is in effect to begin a .new suit. The first case under the act .of 1856, sec. 912, was in 32 Yt. 86, decided in 1859. Then follow Alger v. Murry, 38 Yt. 382, (1866) where trespass and trover; Hager v. Brainerd, 44 Yt. 294, (1872) where trespass and case; Black v. Howard, 50 Yt. 27, (1877) where .trespass and case; French v. Holt, 57 Yt. 187, (1884) where trespass and ease, and Templeton v. Clogston, 59Wt. (1887) where trespass and trover were originally joined. In no •case were there new counts added. The defendant’s attorneys were unexpectedly called upon during the trial to defend another cause of action. The action of the court'in allowing the .amendment was not the exercise of a .sound legal discretion. McDonald v. Tinkham, 33 Yt. 615; 2 Am. Dec. 417, 7 Ed. Gould. PJ. 719. The filing of the new count in trover was proper. So far as it was a matter of discretion the action of the court is not revisable here. The defendant is not harmed. The plaintiff recovered nothing but what he was entitled to, and nothing but what he might have recovered if his declaration had been properly framed at first. The object of every amendment is to permit a recovery which could not otherwise be had. Simmer v. Grant, 12 Vt. 456; Boyd v. Bartlett, 36 Vt. 14; Dana v. McClure, 39 Vt. 197. A count in trover might under the statute, have been joined in the first instance with the counts in trespass qua/re clausum. Hager v. Bradnerd, 44 Vt. 294; Blade v. Howard, 50 Vt. 27. The plaintiff does not need the new count and can recover for the timber cut by Hawthorn without it. A man must see that what is done upon and about Ms real estate is done in such a manner as not to injure others, whether it is done under contract or otherwise. Laugher v. Pointer, 5 Bar. & Cress. 547; Bush v. Steiman, 1 Bos. & Pul. 404; Stone v. R. R. Co., 19, N. H. 427; Stearns v. R. R. Co., 46 Me. 95; Gardner v. Heartt, 2 Barb. 165; Lowell, v. R. R. Co., 23 Pick 24; 1 Amer. Lead. Cas. 784; Mathews v. Water Go., 3 Camp. 403; Sturges v. Theological Society, 130 Mass. 414. Moreover, in this case the defendant had the benefit of the trespasses, which distinguishes it from those cases cited by his counsel.. Coal Co. v. McCullough, 59 Md. 403; Story Agency, Sec. 455.
63 Vt. 197Whipple v. Sheldon (1890)
Bill in chancery, by John IT. Whipple against Moses Sheldon and Merritt Sheldon. Heard at the December term, 1888, Bennington county, upon pleadings and master’s report. Taft, chancellor, dismissed the bill proforma. The orator appeals. The facts as to the record title sufficiently appear in the opinion. As to whether the defendant was to be considered a bona fide purchaser, the master reported as follows: “One Paddock owned and occupied a farm, known as the Richardson farm, and in connection therewith the parcel in dispute, known as the 102-acre piece. The Richardson farm was mortgaged for more than its value. • The 102-acre piece was also mortgaged, but Paddock’s equity was fairly worth $100. Richardson nad foreclosed his mortgage and was endeavoring to shorten the time of redemption. Thereupon an arrangement was made between Paddock and defendant, Moses Sheldon, by which it was agreed that if defendant could obtain a suitable deduction from the Richardson mortgage, he was to pay that up and take a conveyance of the Richardson f&rm, in which event Paddock was to convey to him, without further consideration, his equity in the 102-aere piece.” The reduction in the Richardson mortgage was obtained; Paddock deeded that farm to Richardson, who conveyed to the defendant; and then Paddock, for the nominal consideration of one dollar, quit-claimed the 102-acre piece to defendant. The defendant paid more for the Richardson mortgage than he would but for Paddock’s promise to deed the 102-acre parcel. The orator has the superior title. His attachment was made before the execution of the defendant’s deed, and his execution levied within five months from the rendition of judgment. Defendant is not a bona fide purchaser. He paid no consideration whatever. The orator did not complete the sale on execution until more than five months after the rendition of final judgment, and therefore did not connect the sale on the execution with the- attachment. BlUson v. Wilson, 36 Yt. 60.
63 Vt. 201State v. Smith (1890)
When statute repeals law by implication. Perjury. Indictment. Argumentativeness. Use of words “corruptly” and “falsely.” 1. A former statute or rule of the common law will, without express words to that effect, be repealed by the enactment of a new statute which revises the whole subject matter of the former law and is evidently intended as a substitute for it. 2. But R. L. 4262, 4263, do not do away with the common law as to perjury in this State, for they do not cover the entire ground. The first section imposes a penalty for perjury, and the second section merely declai’es that certain acts shall be perjury which were not at the common law. 3. The indictment alleged that it was a material question on the trial whether a certain paper was signed and delivered. The respondent was charged with false swearing as to the signing only. ■ Held, that it was sufficiently alleged that this testimony was material. 4. It was alleged that the respondent testified that he saw Fuller sign the instrument. The assignment of perjury was that Fuller did not sign-it. Held, not argumentative. 5. If one assignment is sufficient, improper assignments in connection with it will not vitiate an indictment for perjury. 6. An indictment for perjury which alleges that the respondent gave testimony which was untrue, “ willfully and corruptly,” is sufficient, although it omits the word “falsely ; ” for while it must appear that the testimony was false to the knowledge of the respondent the word “ corruptly ” necessarily imports that idea.
63 Vt. 215State v. Clogston (1890)
Indictment for perjury in two counts. Heard upon demurrer at the September term, 1888, Orleans county, Rowell, J., presiding. The demurrer was overruled and the respondent excepted.
63 Vt. 221Whipple v. Village of Fair Haven (1890)
 Liability of municipality for acts of agents. JEquity. Jurisdiction. Damages. 1. Where the trustees of a village are empowered to repair and maintain its streets, and in so doing construct ditches along the highway and a tile drain extending some eight feet onto the premises of an abutting land owner, through which the surface water is collected and discharged upon such premises, the municipality is liable for damages sustained, if it suffers the drain to continue in that condition after notice; and the knowledge of its trustees will be its knowledge. 2. A court of equity has jurisdiction to enjoin the continuance of the wrong. 8. As an incident to that jurisdiction it may ascertain and compel the payment of damages already sustained. 4. Such damages only can be recovered as had accrued before the commencement of the suit. 5. The drain having been removed before final decree, there is no occasion for an injunction, but damages alone will be decreed.
63 Vt. 227Palmer's Exr. v. Ryan (1891)
 Covenant. Condition subsequent. Provision in deed to maintain division fence. The warranty deed from the plaintiffs’ grantor contained this clause: “Provided and reserving that the said Barna. Wood and Jonathan Wood shall erect and thereafter maintain at their own expense, and that of their grantees, all of the division fence between us.” Held, that this constituted an implied covenant upon the part of the grantees, and their assigns, and that it was not a condition subsequent upon the breach of which an action of ejectment would be.
63 Vt. 231Gorham's Admr. v. Meacham's Admr. (1891)
Bill in chancery for foreclosure of a mortgage. Heard at the September term, 1890, upon pleadings and an agreed statement of facts. Taft, Chancellor, dismissed the bill, jpro forma. The orator appeals. The case appears in the opinion. A contract made by an administrator with himself will be enforced when it is for the benefit of the estate that it should be. 1 War. Am. Law of Admrs. 700; 2 ib. 1087; Baerum v. Schenek, 41 N. Y. 183. The placing of the deed among the papers of the estate was a sufficient delivery. Sov/verbye v. Arden, 1 Johns. Ch. 240. There must be two parties to every contract. Here there was but one. 2 Chitty Con., 1339. There was no sufficient delivery of the deed. 1 Jones Mort. Sec. 84; 1 Jones Mort Sec. 539; 3 Wash. Real Prop. 282; Stiles v. Brown, 16 Yt. 563; Dwi/nnell v. Bliss, 58 Yt. 353 ; JEI/more v. Mctfl'ks, 39 Yt. 538 ; Orr v. Olark, 62 Yt. 136; MoEVroy v. Hwier, 24 N. E. Bep. 435.
63 Vt. 236Blackmer's Exr. v. Blackmer (1891)
Bill for the construction of the will of Hiram Blackmer, brought by his executor, Charles F. Kingsley, against his widow, Mary F. Blackmer, and Frank E. Briggs, guardian of Charles G-. Winslow. Heard upon bill and answers at the September term, 1890. Taft, Chancellor, decreed pro forma that the widow was entitled to the income of the promissory- note. Briggs appeals.
63 Vt. 244Stannard v. Burns' Admr. (1891)
Tliis was an appeal from an order of the Probate Court for the district of Pair Haven, accepting the report of commissioners, by which the claim of the plaintiff against the estate of Michael Burns was disallowed. Trial by court at the September term, 1890, Taft, J., presiding. Judgment for the plaintiff in the sum of $102.64. The defendant excepts. The plaintiff claimed to recover upon an account consisting of fourteen items, of which the following is a copy : 1887. 1.
63 Vt. 259Stearns v. Edson (1891)
 Sale of real estate upon execution. Statute of frauds. Purchase price. Failure of consideration. Delay in delivering deed. 1. The return of the officer upon an execution of the sale of real estate is a sufficient memorandum within the statute of frauds to enable such officer to sustain an action for fhe purchase price. 2. The fact that real estate, sold upon execution at public auction under No. 138, acts of 1884, has, between the date of the sale and the tendering of the officers’ deed, gone upon a decree of foreclosure, does not excuse the purchaser from the payment of the purchase price, where the existence of the mortgage, but not its foreclosure was disclosed at the sale. 3. Neither does the fact that the officer neglected for three months, after the time limited by that statute, to tender a deed of the premises; at ■least if the purchaser has not been prejudiced by the delay.
63 Vt. 266Thrall v. Spear (1891)
Bill in chancery for a construction of the will of Charles Beebe, involving the confirmation of the title to certain lands sold by his administrator, and the distribution of the proceeds. Heard upon bill and answer at the September term, 1890. Taft, chancellor, dismissed the bill pro forma. The orator-appeals. The case appeal’s in the opinion. The whole will must be construed together, and the intent of the testator so gathered will govern. Oasey v. Gasey, 55 Yt. 518; In re Cushing’s will, 58 Yt. 393; Randall v. Josselyn, 59' Yt. 557. So read, this will plainly means that the -wife has the right, to exhaust the property dévised to her for her use, but she has-no power to dispose of it except for her actual use. It is of little consequence in what form or order a condition is inserted in a will if it clearly expresses the intention of the testator. Richardson v. Radge, 54 Yt. 373 ; Ohaplwi v. Doty, 60 Yt. 712. Admitting that Harriet Beebe had the power to make a conveyance of the farm, the title nevertheless re-vested in the estate-of Charles Beebe; for the deed was upon condition, and those conditions were not performed. Smith v. Hastings, 29 Yt. 250;. Giddi/ngs v. Smith, 15 Yt. 344; Gidclings v. Oox, 31 Yt. 607;: Haynes v. Bourn, 42 Yt. 687. The infant children of .Ada Spear have an interest in these premises. The conveyance of Harriet Beebe to her . created an estate in fee tail, and she had no power to defeat the title of the heirs. Smith v. Hastings, 29 Vt. 240.
63 Vt. 278Murphy v. Lincoln (1891)
Bill in chancery to enjoin the defendants from commission of certain trespasses upon the lands of the orator. Heard upon bill, answer and master’s report, at the September term, 1891. Taft, chancellor, dismissed the bill p>ro forma. The orator appeals. The opinion states the case. The acts of the defendant constituted a nuisance which a court of equity will enjoin. Wood Niii. 812. A court of equity will enjoin the repetition of a trespass, although it might not a single trespass. 3 Pom. Eq. Jur. §1357 ; Carpenter v. Gwynn, 35 Barb. 395 ; De Yeney v. Galligher„ 20 N. J. Eq. 33; 3 Pom. Eq. Jur. §1357. The remedy at law is only adequate when the injured party can in one action recover entire damages for the wrong done or threatened. Wood Nui. 817, and authorities cited in note 4. When a continuance of the wrongful acts will create an adverse right, equity may interfere. 1 High Inj. §702; Johnson v. Rochester, 13 Hun. 285.' The right of way claimed did not arise upon the partition of Silas Churchill’s estate. Mere necessity will not create such a right. Goodall v. Godfrey, 53 Yt. 219; Tracy v. Atherton, 35 Yt. 52; Wash. Eas. & Ser. 234; Wash. Eas. & Ser. 237; Rttssell v. Jackson, 2 Pick. 573 ; Holmes v. Seeley, 19 Wend. 507; Smiles v. Hastings, 24 Barb. 44. If there is any other way the defendant cannot claim this. Plimpton v. Converse, 42 Yt. 712; Same v. Same, 44 Yt. 158. Equity has no jurisdiction. Ma/rble and Slate Co. v. Adams, 46 Yt. 496; Currier v. Rosebrooks cmd Town of Brighton, 48 Yt. 34; Bisp. Eq. § 436. A mere trespass will not be enjoined. Smith v. Petti/ngill et al., 15 Yt. 82. The defendants have a right of way arising from the former unity of possession. Wash. Eas. 42-43; Hill v. Miller, 3 Paige 254; Wash. Real Prop. 32. And from necessity. Nichols v. Luce, 24 Pick. 102 ; Collins v. Prentis, 15 Conn. 39; Atkins v. Bordmam, 2 Met. 457. One devisee may pass over lands devised to another in order to gain access to those devised to himself. Pearsons v. Spencer, B. & S. 580; Tracy v. Atherton, 35 Yt. 53; Wash. Eas. 37 to 44 and cases cited.
63 Vt. 283Scofield v. Grow (1891)
General assumpsit. Heard at the September term, 1890, Taft, J., presiding, upon the report of a referee. Judgment for the defendant. The plaintiff excepts. ■ The plaintiff sought to recover for work done under a certain contract. The contract was in writing and as follows: “ Rutland, Yt., Sept. 14, 1887. I hereby agree to do Frank M. Grow $60 worth of work in painting signs, $30 of it in cash and $30 to go towards an organ which he is to pay, the balance when he takes it — the organ. Lie is to furnish team, paint, and everything except the boards for small signs, while I am to furnish boards, and he is to paint them for 12£ cents apiece, small signs on fences, stones, etc., at the same price, and one at Fair Ground fence, 8x40, background with shaded letters, for $8, and furnish everything, and two signs 8x10 feet at $5 apiece, and other work accordingly.” The referee reported that the plaintiff had done work under this contract to the amount of $44.'24, and received upon the same $8.35 in cash. That the plaintiff did not ask for more work to do, and the defendant did not ask him to do more. The written contract was not entire. Booth v. Tyson, 15 Yt. 517; Hale v. Brown, 59 N. H. 551; Taylor v. Gallup, 8 Yt. 340; Oil Go. v. Brewer, 66 Penn. St. 351; Moore v. Bonnet, 40 Cal. 251; Badger v. Titcomb, 15 Pick. 413. Attix v. Pelan, 5 Iowa 336. The contract was entire. Brandon Mfg. Co. v. Morse, 48 Vt. 322.
63 Vt. 286Brunswick-Balke Collender Co. v. Herrick (1891)
 Sale. Passing title. Mortgage of quarry. 1. Plaintiff advanced A. & C. money with which to open their slate quarry. In consideration thereof A. & C. contracted with plaintiff to manufacture for it all the slate taken from the quarry at certain specified prices, 10# to be applied on the indebtedness and 90# to be paid in cash when the slate was loaded upon the cars boxed for shipment. A. & C. executed a mortgage to secure payment of their debt and performance of their contract. Held, that the title to the slate did not pass to the plaintiff until it was so boxed and loaded, although manufactured upon a specific order from it and already paid for, and that the plaintiff could not maintain replevin therefor against a messenger of the court of insolvency, in insolvency proceedings against A. & C. 2. Under a mortgage of a slate quarry, which contemplates the working of the quarry, and the condition of which has not been broken, the title to the slate when quarried is not in the mortgagee.
63 Vt. 293Farnsworth v. Town of Mount Holly (1891)
Action on the case to recover damages for alleged injuries to plaintiffs horses sustained by reason of a defective culvert. Plea, the general issue. Trial by court at the September term, 1890, Taft, J., presiding. The plaintiff offered in evidence the notice, a copy of which appears in the opinion. This the court excluded, as not complying with the 'Statute, and gave judgment for the defendant. The plaintiff excepts. The notice should have been received.. To say that the horses “broke through” the plank culvert was to describe the insufficiency. Bliss v. Whitingham, 54 Yt. 275. In the following cases notices as loose as this have been upheld: Norse v. Victory, 51 Yt. 275 ; Pratt v. Shelburne, 53 Yt. 370; Knox v. Wheeloch, 56 Yt. 192; Fassett v. Roxbury, 55 Yt. 552; Reynolds v. Burlington, 52 Yt. 30. The notice was insufficient. (a) It did not state that the culvert was situated in the defendant town. (5) Nor that the town was liable to keep the culvert in repair, nor that it was upon a public highway in the town. White v. Stowe, 54 Yt. 510 ; Willard v. Sherburne, 59 Yt. 361. (c) It wholly fails to point out the insufficiency7. Bartlett v. Cabot, 54 Yt. 242.
63 Vt. 296Burditt Bros. v. Porter (1891)
 Trustee process. Notice of assignment. Selectmen. Acceptance. 1. While a debtor is not compelled to recognize partial assignments by the creditor, the right to refuse to do so is personal to the debtor, and cannot be insisted upon by a plaintiff who has sued the creditor and trusteed the debtor. 2. Notice to the chairman of the selectmen by the assignee of the assignment of a debt against the town is good. It need not be given to a majority of the selectmen. 8. It is not necessary that an order upon a town should be accepted in order to protect the fund from trustee process.
63 Vt. 300Tyler v. State (1891)
 B. L. s. 1J$8. No petition for appeal in criminal cases. R. L. s. 1428, providing for a petition to the County Court for an appeal from the judgment of a justice in certain cases, does not apply to criminal actions.
63 Vt. 303Goodell v. Brandon National Bank (1891)
General assumpsit. Plea, the general issue witb notice of special matter. Trial by jury at the September term, 1890, Taft, J., presiding. The court directed a verdict for the defendant and the plaintiff excepted. The plaintiff is not estopped. Mere lapse of time, no matter how long, does not work an estoppel. It is merely presumptive evidence of payment. Grrnesy. Weeks, 19 Vt. 178; Dwming v. GhanriberlAn, 6 Vt. 127; Eroarts v. Nason, 11 Vt. 122; Kimball v. Ives, 17 Vt. 430; Grafton Bank v. Doe, 19 Vt. 463; Mattock v. Bellamy, 8 Vt. 463; Sparha/wkY. Buell, 9 Vt. 41; McQueen v. Fletcher, 4 Rich. 152; Bean v. Tormele, 94 N. Y. 381; Morris v. Wads-worth, 17 Wend. 103; McBride v. Moore-, Wright 524; Barna/rd v. Banmard, 21 N. Y. (Eq.) 245 ; Delaney v. Barrett, 62 Wis. 615; Leather Mfrs. Ba/rik v. Morga/n, 117 H. S. 96. The mistake resulted, entirely from the negligence of the defendant, which can claim no benefit from any subsequent remissness upon the part of the plaintiff. Moreover it does not appear that the defendant has suffered by the delay. Leather Mfrs. Bank v. Morgan, 117 U. S. 96. The statute of limitations does not begin to run against a bank depositor until actual demand. Poult/ney v. Wells, 1 Aik. 180 ; ILutehinson v. Parkhurst, 1 Aik. 258; Wright v. Hamilton, 2 Bail. 51; Gerard Ba/nky. Bank Pa., 39 Penn. 92; Howell v. Adams, 68 N. Y. 314; Thompson v. B. Ho. Am. Bk., 82 N. Y. 1; Re Waldron, 28 Hun. 481; Browns. Pike, 34 La. 576; Veits v. Union Bank, 31 Hun. 484; Smiley v. Fry, 49 N. Y. 134; Simons v. U. S., 19 Ot. Cl. 601; Harrison v. U. S., 20 Ct. Cl. 175 ; Ganley v. Troy Git/y Bank, 98 N. Y. 487; MeGough v. Jamieson, 107 Penn. St. 336; Bra/noh v. Hcuwson, 33 Minn. 399 ; Hmnphrey v. Clea/rfield Bk., 113 Penn. St. 416 ; Bk. Louisville v. Gray, 2 S. W. Rep. 168; Starr v. Stiles, 19 Ariz. 225 ; Fay v. Glow, 3 N. Y. 593; Hiteheoekv. Wilster, 6T)em. Sur. 255. The plaintiff’s pass book and paid checks were returned to him, and it was his duty within a reasonable time to compare the one with the other and notify the bank of any discrepancy. Not having done so, he is now estopped. Bankv. Morgam, 117 H. S. 96. The closing of the plaintiff’s account and the drawing out the amount standing to his credit, was in effect a demand within the reasoning of the cases requiring a demand, and the statute would begin to run from that time. Staniford v. Tuttle, 4 Yt. 82. Nor would the fact that he afterwards opened a new account help the plaintiff, since any subsequent payments were, in the contemplation of both parties, upon the new account alone. Union Bank v. Knapp, 3 Pick. 96.
63 Vt. 308Town of Chttenden v. Town of Stockbridge (1891)
This was an action to recover for the support of a pauper. Heard upon an agreed statement of facts at the March term, 1890, Munson, J., presiding. Judgment for the plaintiff. The defendant excepts. The intention of the framer of the Poland pauper law was to compel all towns -to support those paupers actually resident within their limits. The word “ transient,” under the old law, had acquired a definite, well-defined meaning.
63 Vt. 310Conant's Ex'rs v. Palmer (1891)
Bill of interpleader by George Briggs and E. H. Farrington, executors of the will of John A. Conant, against certain persons claiming through the said John A. under the will of his wife, Caroline D. Heard upon pleadings at the September term, 1890, Taft, chancellor. The bill alleged that Caroline D. Conant deceased first; then Abigail P. Jermain; last, their testator, John A. Conant; that the executors had in their hands the five hundred dollars bequeathed by the first clause of the will of Caroline D. to Abigail P. Jermain, which they were ready to pay to the person entitled thereto; that the administrator of the said Abigail claimed the same in behalf of her estate, and that her next of kin claimed it in their own behalf ; wherefore the executors prayed that the respective claimants might interplead, and that the orators might be discharged in the premises. The respective claimants answered, each claiming the fund under the will of Caroline D. The question for determination under the provisions of that will, fully appear in the headnote and opinion of the court. The court decreed as follows : 1. “ That the said bill of interpleader is properly riled, and that the defendants do interplead and settle the matters in controversy in this suit between themselves. 2. That the orators pay to the clerk of this court said sum of five hundred dollars, with interest thereon from the 18th day of December, A. D. 188?, to the time of such payment; and that upon said payment the complainants be dismissed with their costs to this date to be taxed and paid out of the fund so paid into court. 3. That the said answers of the defendants having been filed, and they thereby having interpleaded, and made their respective claims, it is upon the bill and answers aforesaid further adjudged and decreed, that said legacy of five hundred dollars bequeathed to Abigail P. Jermain, in the said will of Caroline D. Conant, belongs to the estate of said Abigail, and that the same with interest thereon as aforesaid, be paid out of court to Joel C. Baker, as administrator with the will annexed of said Abigail P. Jennain, to be duly administered upon and distributed according to law and the will of said Abigail P. Jermain. 4. That said Joel C. Baker, administrator as aforesaid, recover his costs against those next of kin of said Abigail P. Jermain as have answered the bill, and made adverse claim. 5. That an appeal be allowed to the defendants who have • answered and made adverse claims as aforesaid.” The next of kin appeal. The intent of the testatrix plainly was that the next of kin should take if Mrs. Jermain deceased before the death of both herself and husband. That intent should govern. Piehardson v. Page, 54 Yt. 3?3 ; Eixon v. Oliver, 13 Yes. Ill; Williamson v. Bcmiel, 12 Wheat. 568 ; Smith v. Bell, 6 Pet. 68; MeGloshey v. Gleason, 56 Yt. 264; Bowers v. Porter, 4 Pick. 108, 204 ; Ohaplin v. Doty, 60 Yt. 712 ; Williams v. Bradley, 3 Allen 270; Baxter v. Baxter, 122 Mass. 89; Barrett v. Ma/rsh, 126 Mass. 213, 216. The will must be given that construction which will carryout the intention of the testatrix as expressed in the language of the instrument itself. Gasey v. Oasey, 55 Yt. 513; In lie Cushing’s Will, 58 Yt. 393 ; Randall v. Joselyn, 59 Yt. 557. The language of the will creates an absolute gift which the estate of Mrs. Jermain would take. Stowell v. Hastings, 59 Yt. 494. A plain provision will not be qualified by a subsequent uncertain condition. Thornhill v. Halt, 2 Cl. & Fin. 22; Gollins v. GolUns, 40 Ohio St. 353; Bailey v. Sanger, 9 N. E. Rep. 159; Hoolcstedler v. Hoolcstedler, 9 N. E. Rep. 467. .
63 Vt. 316Paris v. Hilliard (1891)
General assumpsit. Plea, the general issue. Trial by jury at the March .term, 1889, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The plaintiff claimed to recover the price of hay furnished for the keep of a yoke of oxen. One Parker was the owner of the oxen and made the original trade with the plaintiff by which the plaintiff agreed to furnish the hay. After the oxen had been kept for about fourteen weeks, Parker mortgaged them to one Wheeler, who thereupon agreed to pay the plaintiff what already was, or might thereafter become due for the hay. Still later, Wheeler assigned his mortgage to the defendant, and the plaintiff’s evidence tended to show that as a part of that assignment the defendant promised Wheeler to pay the plaintiff’s claim, and subsequently made the same promise to the plaintiff. As to the liability of the defendant upon this alleged promise the court instructed the jury: “If you find that at the time this mortgage was given, Wheeler agreed to pay plaintiff for the keeping of the oxen, and that the object of the mortgage so far as the clause referred to is concerned, was to secure Wheeler for so doing; and also find that in connection with the assignment of the mortgage by Wheeler to defendant, the defendant undertook to pay plaintiff’s bill for keeping the oxen, and promised plaintiff that he would pay him, even though the promise directly to plaintiff was a few days after the assignment, the promise by defendant was such a promise and upon such a consideration that the plaintiff can recover.” The condition of the mortgage was as follows: “ Provided, however, that it is a condition of the foregoing sale, asssignment, and transfer, that if the said Marcus D. Parker, his heirs, administrators, and assigns, shall well and truly pay or cause to be paid to the said Allen Wheeler, his heirs, and assigns, the sum of thirty-eight dollars, and all accrued interest thereon, and keep said oxen in good condition, and does not remove them from the town of Danby, and pays for their keeping which is justly due and owing from the said Marcus D. Parker to the .said Allen G-. Wheeler, as follows: Thirty-eight dollars and interest, and the keeping on demand under the above conditions, then this instrument is to be wholly null and void, otherwise to be and remain in full force and virtue.” The other facts sufficiently appear in the opinion. The defendant moved to set aside the verdict as against the evidence, which motion was overruled. The mortgage did not secure the debt due from the mortgagor to the plaintiff, but only from the mortgagor to Wheeler. R. L. s. 1969 ; Tarbell v. Jones, 56 Yt. 312; Parker v. Morrison., 46 N. H. 230. The promise sued upon was oral and within the statute of frauds as a promise to pay the debt of another. R. L. s. 931. Even if the defendant had owned the oxen he would not have been bound by an oral promise to pay for this feed which had already been furnished. Ferguson v. Spear, 65 Me. 277; Stevens v. Mayberry, 19 At. Rep. 92. The mortgage was fairly intended to secure what was and should become due for keeping these oxen. Jones Oh. Mort. § § 89, 90. The mortgage therefore became a fund or security put into the possession of the mortgagee to pay for this keep, and the oral promise of the mortgagee to pay the plaintiff his debt in that behalf was binding. Merrill v. Englesby <& Tr., 28 Yt. 150; Wait v. Wait's Exrs., 28 Yt. 350; Smith v. Est. of Rogers, 35 Yt. 140; Fullam v. Adams, 37 Yt. 391; Bailey v. BaAley, 56 Yt. 398. The plaintiff released Wheeler and accepted the responsibility of the defendant. Andrus v. Dams, 9 Yt. 136 ; Watson v. Jacobs, 29 Yt. 169; Williams v. Utile, 35 Yt. 323. The plaintiff might testify as to the information upon which he acted in settling with Wheeler. 1 Greenl. Ev. § 101.
63 Vt. 321Rice's Assignees v. Hulett (1891)
Chattel mortgage by parol. Possession. Insolvency, 1. A loan made upon the parol agreement that the creditor may take and hold possession of the debtor’s stock of goods as security, constitutes a mortgage valid between the parties, although the creditor did not take such actual possession as would protect him against third persons. 3. When the creditor subsequently and before the commencement of insolvency proceedings takes actual possession of the property, that possession relates back to the time of the first giving of the mortgage in determining the rights of the creditor and assignee. 3. The creditor will acquire title to goods incorporated with the stock in place of those sold between the date of the mortgage and the taking possession.
63 Vt. 326International Trust Co. v. Assignee of West Rutland Marble Co. (1891)
L. 1862-3, allowing a claim against the estate in favor of the claimant. Heard at the September term, 1889, Bowers, J., presiding, upon an agreed statement of facts. Judgment pro forma for the claimant. The defendant excepts. The defendant was the assignee of the West Rutland Marble Company. That company, previously to its insolvency, had issued certain negotiable bonds, which were secured by two mortgage deeds running to the claimant as trustee.
63 Vt. 333Crossman v. Johnson (1891)
Action for false warranty in the sale of a horse. Plea, the general issue. Trial by jury at the September term, 1890, Taft, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts. The opinion states the case.. To allow previous private representations to enter into an auction sale as a warranty would be a fraud on the other bidders At such a sale all are supposed to stand upon the same equality. 2 Add.
63 Vt. 336Latremouille v. Bennington & Rutland Ry. Co. (1891)
Case for the negligence of the defendant resulting in the death of the plaintiff’s intestate. Trial by jury at the September term, 1890, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The facts appear in the opinion. The second, seventh and eighth requests were as follows : “2.
63 Vt. 350Burton v. Kennedy (1891)
Replevin for twenty sewing machines and one hundred dozen shirts. Plea, the general issue. Trial by jury at the April term, 1890, Royce, Oh. J., presiding. The court directed a verdict for the plaintiff for nominal damages and costs. The defendant excepts.
63 Vt. 355Fonda v. Burton & Sowles (1891)
General assumpsit. Heard, upon tlie report of referees at the September term, 1890, Ross, J., presiding.. Judgment for the plaintiff in the sum of $424.73, being the plaintiff’s account without deducting the amount of his subscription. The defendants except. The plaintiff sought to recover for goods .furnished the defendants as partners under the title of the Glens Falls Shirt Oo., between February 15, and October 20, 1881. The amount of the plaintiff’s debt was $424.73.
63 Vt. 363Hobart v. Young (1891)
Action for deceit and false warranty in tbe sale of a horse. Plea, the general issue. Trial by jury at the April term, 1890, Royce, Oh. J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant.
63 Vt. 374State v. LaBounty (1891)
Indictment in two counts for killing a cow by means of poison. Heard upon tbe respondent’s general demurrer at tbe September term, 1890, Ross, J., presiding. Tlie court overruled the demurrer. Exceptions by the respondent.
63 Vt. 378Smith v. Purmort's Admrs. (1891)
This was an appeal from the order of the Probate Court accepting the report of commissioners for the allowance of claims against the estate of Joseph Purmort, and was heard at the September term, 1889, Tyler, J., presiding, upon general demurrer to the defendant’s plea of the statute of limitations. The demurrer was overruled, and the plaintiff excepted. The plaintiff’s 3rd count was as follows: “And now comes the said plaintiff and further declares against the said defendants, in a plea of the case for that the said Joseph Purmort, deceased, in his lifetime, to wit, at Middlebury, in the County of Addison, on the 18th day of July, 1876, in consideration of a large sum of money, to wit, the sum of five thousand dollars then due and owing by him to the plaintiff, then and there signed and delivered to the plaintiff an instrument in writing in the words and figures following, that is to say: Middlebury, Yt., June 23d, 1870. I hereby acknowledge that I have this day been notified that Timothy O'. Smith holds the following described notes as his property, viz. — nine notes amounting to eleven thousand dollars, dated New Haven, March 4th, 1869, signed by Alexis T. Smith, and Joseph Purmort, jointly and severally, payable to Oliver W. and Caroline H. Eaton, or bearer, with interest annually after the first day of April, 1869. Seven of the said notes being for' the sum of one thousand dollars each, and payable respectively on or before the first day of April, 1873, 1874, 1875, 1876, .1877, 1878 and 1879, and two of the-above mentioned nine notes, being for two thousand dollars each, and payable respectively on the first day of April, 1880, and 1881. All of the above mentioned notes are secured by a mortgage deed executed by Alexis T. Smith and Joseph Purmort on the farm in Monkton and New Haven formerly deeded to said Alexis T. Smith and Joseph Purmort by said Oliver W. and Caroline H. Eaton, containing about five hundred and fifty acres more or less. Notified July 18---76 : Which said instrument was signed by the said Joseph Purmort in the presence of an attesting witness, to wit, one J. R. Nash, who then and there subscribed his name to said instrument as a witness thereto : Whereby the said Joseph Purmort became liable to pay the plaintiff the contents of all the said .promissory notes mentioned and described in said instrument, and then and there, in consideration thereof, promised the plaintiff to pay him the contents of said several notes according to the tenor thereof. Nevertheless the said Joseph Purmort, in his lifetime, did not pay the said notes, nor have his said administrators since his decease paid the ' same, but' on the contrary thereof, four of said notes, to wit, those falling due on the first days of April, 1877, 1878 and 1879, for one thousand dollars each, and the one falling due on the first day of ■ April, 1880, for two thousand dollars, with a large amount of interest due on each of said notes are now due, outstanding and unpaid.” The defendants’ plea alleging that the cause of action did not accrue within six years, is bad. Hagpgood v. Southgate, 21 Yt. 584; Briggs v. Thomas, 32 Yt. 176; R. L. s. 972; Stearns v. Stearns, 32 Yt. 682 ; Bussell v. Stearns, 20 Yt. 53; Bane v. McOlure, 39 Yt. 197; Ang. Lim. s. 285; Aldrich v. Williams, 12 Yt. 113 ; Stearns v. Stearns, 32 Yt. 678. The written, instrument declared upon in the third count is sufficient to bind the intestate. It is an acknowledgment of the debt from which a promise will be implied. Ang. Lim. ss. 208, 209; Bell v. Morrison, 1 Pet. 351; Brigham v. Hutchins, 27 Yt. 569 ; Bliss v.Alla/rd, 19 Yt. 350 ; Ohapim v. Warden, 15 Yt. 560 ; Walsh v. Manger, 111 U. S. 31; Mastin v. Branham, 1 West. Rep. 711. . . The plea that the cause of action did not accrue'within six years is always a good answer to a suit in assumpsit, unless the plaintiff’s declaration shows that the case falls within some exception to the rule. Busw. Lim. s. 381; Ang. Lim. ss. 292-3; 7 Wait, Act. & Dei. 309 ; Briggs v. Thomas' Est., 32 Yt. 176. The first and third counts of the plaintiff’s declaration are bad upon general demurrer.
63 Vt. 383School District No. 1 v. Town of Bridport (1891)
 Fractional school districts. Dissolution. Application to judge. When women may vote in school meeting. Public money. General assumpsit. 1. The jurisdiction of a judge of a County Court to appoint three justices for the purpose of considering the 'dissolution of a fractional school district under R. L. s. 547, depends upon a strict compliance with the terms of the statute, and unless the application for such appointment is signed by three legal voters of the district residing in the same town, there being that number, the judge is without jurisdiction and all subsequent proceedings are void. 2. A woman is not a legal voter in a school distiict' unless her list was actually taken in that town at the annual assessment next preceding. It is not enough that it ought to have been taken. 8. Nor, in case a woman takes, under her husband’s will, the use of his property for a certain time, would a list to his “estate ” be in effect a list to her. 4. A school district cannot recover of the town in general asumpsit that portion of the public money which ought to have been but was not allotted to it in'the division by the selectmen. 5. The selectmen in making such division do not act for the town, but as public officers in the discharge of a public duty imposed by the statute.
63 Vt. 391Jones v. Knappen (1891)
This was an appeal from a decree of the Probate Court distributing tlie estate of Loyal C. Eemele. Trial by court at tlie December term, 1890, Start, J., presiding. Tlie appellants except. Tlie following was the will of the testator, omitting the specific legacies to persons other than his wife: “ First, I give, devise and bequeath to my wife, Alma Eemele, the sum of one thousand dollars, and direct that my administrator in addition thereto pay to her and for her benefit the use and income of all my estate as long as she shall live.' At her decease, I give, devise and bequeath all my estate that may be remaining as follows, namely: * * * And the rest, residue and remainder of my estate, I give, devise and bequeath to the next of kin of myself and my wife, one-lialf to the next of kin of myself, to be distributed according to the law of intestate estates, and the other half of said residue, to the next of kin of my wife, Alma, as if it was her estate, to be distributed according to the law of intestate estates.” The decree of the County Court was as follows: 1st. That the said legacy of five hundred dollars to said Iiiram' Alden, lapsed by his decease before the testator. 2d. That all the legacies given by said will, as well the pecuniary as the residuary legacies, excepting only said legacy to Hiram Alden and the legacies given to said widow, vested in said legatees respectively at the decease of the testator, but that the enjoyment of the same is postponed to the time of the decease of said widow. 3d. That the period of enjoyment of said legacies is in no case accelerated by the election of said widow declining to accept the provisions made for her in and by said will, but that the time of enjoyment of each and all of said legacies, as well residuary as pecuniary, remains the same as if said widow had taken the provisions made for her in and by said will. And it is here!)y, pro-forma and without hearing, decreed that said administrator be, and lie is hereby directed by this court to hold the said portion of said estate so in liis hands remaining, that is to say, said sum of1 $8,399.75, until such time as said widow shall decease, and in the meantime to keep the same invested in safe and productive securities, and to receive, retain and re-invest the income thereof ; And upon the decease of said Alma líemele, widow as aforesaid, to turn such securities into cash, and out of the same to pay all the said pecuniary legacies (not including said legacy to said Hiram Alden nor said legacy to said-widow, Alma "Remele), with interest from the decease of said Alma, and to distribute and pay out the residue thereof, less administration expenses,, to said residuary legatees in the shares and proportions following, that is to say : * * * * And the reversion of the -widow’s dower is reserved for further decree. The remaining facts sufficiently appear in the opinion. All the legacies vested upon the death of the testator, their enjoyment being postponed until the decease of the widow. 2 Redi. Wills, 215, et seq., 266, 267 ; Weatherheacl v. Stoddard, 58 Yt. 629 ; 1 Jar. Wills (Ed. 1861), 758; Neilson v. Bishop (N. J.) 17 Atl. Rep. 962; Dale v. White, 33 Conn. 294; Eldredge v. Eldredge (N J.) 3 Cent. R. 344: Bull v. Bull, 8 Conn. 47; 20 Am. Dee. 86; IToffen’s Estate, 70 Wis. 522; Eagles v. Le-Breton, L. R. 15 Eq. Oas. 148. The waiver by the widow of the provisions of the will operated to accelerate the payment of all the legacies, and they thereby became payable immediately. The remainder to the kin of the wife would not vest until her death. 2 Redi. Wills 621, § 39. The court should carry out as nearly as possible the intent of the testator. That can only be done in reference to the remaindermen in this case by allowing tlie estate to accumulate during the life of the widow for their benefit. Adams v. Gillespie, 2 Jones Eq. 244; Firth v. Denny, 2 Allen 468 ; Fox v. Rumery, 68 Me. 121.
63 Vt. 399Town of New Haven v. Town of Middlebury (1891)
 Towns must support resident paupers. Who are transients. Under No. 42, acts of 1886, known as the Poland Pauper Law, no recovery can be had by the town in which the pauper actually resides as against the town in which he has a three years’ residence. For (a) towns must support those paupers who reside within their limits; and (b) such a pauper is not a transient person, and in that case alone does the statute permit a recovery.
63 Vt. 405Dano v. Sessions (1891)
Action on the case for deceit in the sale of land. Heard upon general demurrer to the plaintiff’s declaration at the December term, 1890, Start, J. presiding. The case was dismissed upon the ground that the title to land was involved and that therefore the justice had no jurisdiction. Exceptions by the plaintiffs. The case appears in the opinion. The title to land is not concerned. Jakeway v. Barrett, 38 Yt. 316.
63 Vt. 407Prior v. Wilbur (1891)
 Writ of error. Presumption of regularity. Motion to bring forward. 1. Upon a writ of error every presumption is to be made in favor of tbe judgment which is not positively inconsistent with the record. 2. In case a declaration contains a special count upon note and also the general counts, the County Court may at the first term, upon notice to the defendant, strike out the general counts and give judgment upon the special. 3. The alleged error was that the court granted an amendment striking out the general counts and gave judgment the first term without the consent of the plaintiff in error in violation of rule 5. The record showed simply the granting of the amendment and the giving of judgment. Held, that the writ should be denied, for the presumption was that the amendment was allowed upon notice. 4. The more appropriate remedy of the plaintiff in error would be to move in the County Court that the case be brought forward and the judgment stricken off.
63 Vt. 411Tillison v. Tillison (1891)
Petition for divorce on the ground of adultery. Tbe petitionee filed a counter petition, alleging adultery, intolerable severity, and refusal to support, and tbe two cases were heard together at tbe April term, 1890, Taft, J., presiding. Both libels were dismissed. The petitioner excej)ts. Tbe letters referred to in tbe opinion were two. One was written and addressed to a Mr. White, and tbe other, addressed to tbe libellee, was enclosed, with tbe request that White band it to her. Instead, be banded them both to her husband, tbe libellant. When affirmative matter is relied upon in defence tbe petitioner should be apprised of it by written plea. Pastoret v. Pastoret, 6 Mass. 276; Wood v. Wood, 2 Pai. Oli. 108; 14 Wend. 645; Smith v. Smith, 4 Pai. Oh. 432; Vanee v. Va/nee, 17 Me. 203; Austin v. Austin, 10 Conn, 221; 2 Bisli. Mar. and Div. § § 341, 345, 346; Turner v. Turner, 3 Greenl. 398 ; ResUne v. Restvne, 4 Pawle 460; Lewis v. Lewis, 9 Ind. 105; Morrell v. Morrell, 1 Barb. 318 ; Moisten v. Moisten, 23 Ala. 777; Reid v. Reid, 21 N. J. Eq. 331; 2 IT. S. Dig. (N. S.) 364, s. 246; Stelphon v. Stelphon, 58 Me. 508. Intolerable severity and refusal to support are not a defence to a petition for divorce on the ground of adultery. Dillon v. Dillon, 32 La. An. 643 ; 12 U. S. Dig. (N. S.) 438, s. 10 ; Mcmdy v. Mcmdy, 124 Mass. 394. That issue having been adjudicated in the former trial cannot be again raised in this. Burton v. Burton, 58 Yt. 414; Ferd v. Ferd, 98 Mass. 155 ; Thwrston v. Thurston, 99 Mass. 39 ; Lewis v. Lewis, 106 Mass. 309 ; Com. v. Evans-, 101 Mass. 25; Vance v. Vanee, 17 Me. 203 ; Foot v. Gibbs, 1 Gray, 412; Ereem. Judg. (2nd. Ed.) § 249. The letters should have been admitted to show the adulterous disposition on the part of the partieeps eriminis. 2 Bish. Mar. and Div. § 613; State v. Lewis, 45 Iowa 20 ; 9 U. S. Dig. (N. S.) 288, 182; State v. Thibeau, 30 Yt. 100; Tenne v. Josl/yn, 41 Yt. 484; 1 Greenl. Ev. § 111; Dart v. WaLIcer, 3 Daly 138; 3 U. S. Dig. (N. S.) 260, ss. 90, 92 ; State v. Larldng, 49 N. LL. 39; Pose. Crim. Ev. 60-3, and 322-4; Am. Or. Law §§ 702-6, and 2351-55. No written plea was necessary. Shaclcett v. Shaelcett, 49 Yt. 196 ; Burton v. Burton, 58 Yt. 414; Blain v. Blain, 45 Yt. 538. Cruelty and refusal to support are a legal defence' to a charge of adultery in the wife. Bish. Mar. and Div. § 401. The letters were inadmissible. The libellee never received or knew of them. Hill v. Pratt, 29 Yt. 119.
63 Vt. 418Durfey v. Town of Worcester (1891)
 Pauper. Contract to support. Repudiation. Charge of court. Harmless error not revisadle. 1. A party may in general terminate an executory contract, thereby subjecting himself to the payment of damages for non-performance; but where the subject matter of the contract is the keeping of something which the repudiating party has delivered to the other, and for the support of which continued expenditure is necessary, such party cannot terminate the contract without taking back what has been delivered. S. So when the defendant town has contracted with the plaintiff to support a helpless pauper until the happening of a certain event, and has delivered the pauper to the plaintiff, it cannot, before the happening of that event, terminate the contract by a simple notice that it will no longer be bound by it. It must take away the pauper, or provide otherwise for his support. 3. And the same would be true if the town had the right to terminate the contract on notice. 4. A charge will be construed in reference to the claims of the parties on trial. 5. Where the admission of excluded evidence could not have helped the excepting party, a new trial will not be granted.
63 Vt. 424Carey v. Hart (1891)
Eeplevin for a borse. Plea, the general issue. Trial by jury at the April term, 1890, Taft, J., presiding. Yerdict and judgment for the defendant. The plaintiff excepts. The parties had exchanged horses, and the plaintiff claimed that the defendant had been guilty of such fraud in connection therewith as entitled him, the plaintiff, to rescind the trade and demand back his horse. It was conceded that if the plaintiff had the right to rescind he had properly exercised that right. The alleged fraud consisted in misrepresentations as to the horse exchanged. Upon the cross-examination of one Clark, a witness for the defendant, the plaintiff proposed to ask him the value of this horse. The plaintiff had not gone into this question in the opening of his case, and the witness had not testified as to it upon his direct examination. The court excluded the question for that it “was not part of the cross-examination.” The defendant bought the horse, which he exchanged with the plaintiff, April 20th, and made the exchange on the 30th of the same month. The person of whom he bought her had owned her but two days, and desiring to know more about her he wrote to one Snyder, who had owned her for some time, a letter of inquiry, in answer to which he received the following reply: “I can only say that I traded for her some time in the winter— first part of the winter. She was called to me eight years old. I am not an expert on a horse’s age. I used her only for single driving. Report says she is a good worker in double team, and the way her mane is worn shows that she has been worked. "With me she has been uniformly kind and no tricks, but all the time I had her there seemed to be some difficulty about her eating and tendency on the road to go with her head down, and with tendency to go still lower. Seemed to me to be some difficulty about the head. I decided she wasn’t what I wanted for a single driver and traded with Willey. No questions asked on either side. Once while I had her she gave out on the road. Head down to the ground, her tongue out of her mouth. What was the matter with her, I don’t know.” This letter was received by the defendant before the exchange with the plaintiff, and the information which it contained was not communicated to him in the course of that trade. The court instructed the jury in a manner not excepted to as to what would constitute fraud in the making of the exchange, and submitted this letter to them as bearing upon that question; but refused to hold that the conduct of the defendant in not disclosing its contents was fraudulent as matter of law. It was error to exclude the question put Clark on cross-examination. Kidder v. Smith, 34 Yt. 294; Kimbcdl v. Lock, 31 Yt. 686. It was fraudulent of necessity to withhold the information derived from Snyder’s letter. Howard v. Gould, 28 Yt. 523; Mallory v. Leaoh, 35 Yt. 156; Graham v. Styles, 38 Yt. 578 ; Twitohell v. Bridge, 42 Yt. 72; Garrigan v. Hull, 5 Yt. 22. The question put Clark was properly'excluded. State v. Smith, 49 Conn. 380 ; Hughes v.- Westmoreland, 104 Penn. St. 213 ; 1 Greenl. Ev. §445 ; Robert’s Dig. 262. The court properly left it to the jury to say whether it was fraudulent to withhold the information conveyed by Snyder’s letter. 1 Big. Fr. 139; lasigi et al. v. Brown, 17 How. 183.
63 Vt. 429Wheeler v. Selden (1891)
Exceptions from the City Court of Burlington. ■ - Trover for the conversion of a wagon. Plea, the general issue. Trial by court, Peck, J. Judgment for the plaintiff. The defendant excepts. The plaintiff attached the wagon as the property of the husband. While so held by him it was taken from his possession by the defendant acting as the agent of the wife. The remaining facts appear in the opinion. The exchange vested a perfect title in the wife. Nothing more need be done. Leavitt v. Jones, 54 Yt, 423; White & wife v. Waite, 47 Yt. 402; Spooner & wife v. Reynolds, 50 Yt. 437. The change of possession was sufficient. She had control of the wagon after the exchange. Ordinary inquiry would have revealed the fact that it was hers. Flanagan v. Wood, 33 Yt. 332 \ Hally. Parsons, 17 Yt, 271. Murray & Reedy. Ohadwiclc, 52 Yt. 293; Lyndon v. JBelden, 14 Yt. 423. There was no sufficient change of possession. Ellis y. Eowa/rd, 17 Vt. 330 ; Stiles v. Shumway, 16 Yt. 435; Mills v. Warner, 19 Yt. 609; ElcmaganY. Wood, 33 Yt.; Rothchild y. Rowe, 44 Yt.; BYY&s v. Prescott, 53 Yt. 57.
63 Vt. 432Peck v. Macomber (1891)
 Equity. Fraudulent appropriation of firm assets ~by partner. The defendant husband owned a half interest in the firm of ~W. H. & Co., housebuilders. Being desirous of erecting a house for a home, he and his wife procured §3,800, from their parents and raised a few hundred dollars from other sources. A lot was purchased in the name of the wife and a house erected thereon by the firm of W. H. & Co. The husband deposited with the firm to the credit of “ House Account ” the money procured by himself and wife. Subsequently the firm was transformed into a stock company, which became insolvent. This suit was brought by the assignee of the original firm to charge the said house and lot for the benefit of the creditors of that firm. Held, that, under the facts of this case, the action could not be maintained, it not appearing that the firm was insolvent at the time of the transaction, nor that the transaction was other than a legitimate one, nor that the cost of the house exceeded the amount deposited on that account by the defendants with what was due the husband from the firm by way of salary.
63 Vt. 437Duran v. Standard Life & Accident Ins. (1891)
Exceptions from tbe Oity -Court of Burlington, Peck, J. Tbe action was general assumpsit upon two policies of accident insurance. Plea, the general issue. Trial by court. Judgment for the plaintiff. The defendant excepts. The case appears in the opinion. The plaintiff was in violation of the Sunday law, but for which the accident would not have occurred, and cannot by the terms of his policy recover. Day v. Highland St. Bailway Oo., 135 Mass. 113 and cases there cited; Grotty v. Bangor, 57 Me. 423; Baldwm v. Barney, 12 R. I. 392; Plots v. Oity of Oohoes, 89 N. Y. 223; 42 Am. St. Rep. 286; Johnson v. Irasburgh, 47 Yt. 28; Inswrmce- Oo. v. Seaver, 19 Wall. 531. A construction which works a forfeiture will not be adopted if any other is possible. Darrow v. Famil/y Fund Soc., 1 L. R. A. 495 ; 15 Am. St. Rep. 430 ; Queen Ins. Oo. v. Youmg, 86 Ala. 424; 11 Am. St. Rep. 50 ; Mut. Assurance Soc. v. Scottish Union, etc. Ins. Oo., 84 Ya. 116 ; 10 Am. St. Rep. 819. No violation of law was in progress at the time of the accident. lie was not hunting but returning home. Johnson v. Irasburgh, 47 Yt. 34. If the plaintiff was in violation of law, that was not the cause but the occasion merely of the injury. Semer v. Travelers' Ins. Go., 19 Wall. ; Bradley v. M. B. Life Ins. Go-, 45 N. Y. 422; Goeteman v. Gown. Mut. Ins. Go., 3 Hun. 517; Murray v. JY. Y. Life Ins. Go., 96 N. Y. 614; Bluff v. M. B. Life Ins. Go., 13 Allen 308.
63 Vt. 443Smalley v. City of Burlington (1891)
 Grand list. Reduction of offset claimed on account of indebtedness. Stocks in foreign corporations. National bank stock. Under Sec. 13, No. 3, Acts of 1883, which requires the listers, in determining the grand list of a tax-payer, to deduct from the offset claimed by the tax-payer on account of indebtedness the aggregate amount of his United States government bonds, and other stocks and bonds exempt from taxation by the law of this State, the amount claimed in offset should be diminished by stocks in foreign corporations, which are exempt from taxation in this State, including stocks in National Banks located in other States.
63 Vt. 449Parker v. Couture (1891)
Trespass for an indecent assault and battery. Plea, tbe general issue. Trial by .jury at tlie April term, 1890, Taft, J., presiding. Verdict and judgment for tbe defendant. The plaintiff excepts. Tbe case appears in tbe opinion. Proof of tbe former conviction of an assault and battery upon tbe sister was admissible. It rebutted defendant’s claim that be was in bis own bouse tbe entire day. 1 G-reenl. Ev. 604 and note 1.
63 Vt. 452Johnson v. Castle (1891)
Complaint for bastardy. Trial by jury at the September term, 1890, Poyce, Oh. J., presiding. Yerdict and judgment for the defendant. The plaintiff excepts. The defendant was about seventy-six years old, and claimed that he was physically incapable of having begotten the child. Upon this point the plaintiff offered the testimony of one Pay, the family physician of the defendant, as to whether in his opinion the defendant was so capable.
63 Vt. 456Cory v. Barnes (1891)
Trover for six cows and one hog. Plea, the general issue. Heard upon referee’s report at the September term, 1890, Tyler, J., presiding. Judgment for the plaintiff. The defendant excepts. The facts appear in the opinion.
63 Vt. 459Dunklee v. Goodenough (1891)
General assumpsit. Pleas, non-assumpsit and a special plea in bar. The plaintiff joined issue on the first plea, and filed a .special replication to the second. Heard at the March term, 1890, Koss, O. J., presiding, upon the defendant’s general demurrer to the plaintiff’s replication. Demurrer overruled, and replication adjudged sufficient. The defendant excepts. The plea and replication were as follows: PLEA. “And for further plea in this behalf the defendant, by leave •of the court here for that purpose, first had and obtained, according to the forms of the statute in such case made and provided, says that the plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the said plaintiff heretofore, to wit: on the first day of December in 1887, at ten o’clock in the forenoon, in a Justice Oourt before "Royall Tyler, Esq., a justice of the peace in and for the County of 'Windham, .at firattleboro, impleaded the said defendant for the not performing the very same identical promises and undertakings, and each and every one of them in the said declaration mentioned, and .such proceedings were continued from time to time until the ninth day of January in 1888, at ten o’clock in the forenoon, at which last mentioned time the parties to said action submitted to •said court their respective proofs and allegations thereon, wherefore said defendant, by the consideration and judgment of said •court, recovered judgment in the said action for his legal costs, taxed and allowed at two dollars and fifty-three cents, from which said judgment said plaintiff then and there appealed to the next stated term of the court to be holden within and for tlie County of Windham, as by the record and proceedings thereof still remaining with said court fully appeal's, but failed go enter said appeal in said court at said term thereof, wherefore said defendant prays judgment, if the plaintiff ought to have or maintain his aforesaid action thereof against him and for his costs.” REPLICATION. .“And the said plaintiff as to the said plea of the said defendant by him secondly above pleaded, saith that the said plaintiff by reason of anything by the said defendant in that plea alleged ought not to be barred from having or maintaining his aforesaid action thereof against the defendant because he says, that though true it is that the said plaintiff impleaded the said defendant before said justice of the peace, for the cause therein mentioned, and the defendant filed a plea in abatement of said writ, in the words and figures following, to wit : Scott Dunklee v. C. M. Goodenough. } Before Boyall Tyler, Esq., Justice of the Peace. And now the defendant comes and says that the writ in said suit was made returnable on the 5th day of December, 1887, at ten o’clock in the forenoon, at the office of Waterman, Martin & Hitt, in Brattleboro, in the county of Windham, and by the declaration therein contained the plaintiff declared against the defendant for money had and received by the defendant to the plaintiff’s use, for money lent and accommodated by the plaintiff to the defendant, for money laid out and expended by the plaintiff, for the defendant, for work and labor done and performed by the plaintiff for the defendant, for 'goods, wares and merchandise sold and delivered by the plaintiff to the defendant, for money found due from the defendant to the plaintiff on accounting, and for money due from the defendant to the plaintiff for the use and occupation of premises of the plaintiff, as by the writ and declaration on rile more fully appears ; that by agreement of the parties before the return day of said writ the same was continued to this 19th day of December, 1887, at the same hour and place; that, since said continuance the defendant has craved a specification of the claim of the plaintiff upon which said suit is brought, and it is now read to him; that thereupon the defendant further says that said suit is brought to recover a demand for goods, wares and merchandise, to wit: one sewing machine, sold and delivered by the plaintiff to the defendant, to wit: on the 16th day of October, 1883, and not upon any promissory note given in liquidation of said demand; that said sewing machine was sold and delivered by the plaintiff to the defendant in Newfane, in the county of Windham, and not in said Brattleboro; that at the time of the bringing of this suit the defendant resided, and has ever since resided, in said Newfane, and not in said Brattleboro, and that said suit should be brought and tried in said Newfane and not in said Brattleboro. Wherefore he prays judgment of said suit that the same may abate. C. M. GOODENOUGH. And the plaintiff joined issue on said plea and said plea in abatement was sustained by the Court, and the defendant recovered judgment for his legal costs, which are the same impleading and judgment set forth in the defendant’s second plea, and the said plaintiff appealed from said judgment to the then next term of said County Court, and failed to enter said appeal in said Court as therein set fourth, but he says that after the rendition of said judgment, to wit: on the first day of March, A. D. 1889, before said term of Court, and before the comencement of this suit, and while said cause was pending on said appeal, he discontinued said cause and notified the defendant thereof, wherefore said appeal was not entered at said term of Court as set forth in the defendant’s said plea ; and this he is ready to verify; wherefore he prays judgment and his damages by him sustained by reason of the not performing of the said several promises and undertakings as in his declaration mentioned.” The replication does not contain any new matter which is an answer to the defendant’s plea. The plaintiff had no right to discontinue his suit after the defendant had recovered judgment and an appeal had been taken. Jennie v. G-Vywn, 12 Yt. 480 ; Dixon v. Sinclair, 4 Vt. 360; Newcomb et al. v. Pecio et col., 17 Yt. 309. The judgment recovered by the defendant in the previous suit was not upon the merits of the cause and therefore not a bar to this suit. Freeman Judg. § § 260, 265; Gould PL 296, 299; 2 Greenl. Ev. § 26; Chit. Pl. § 458. The demurrer reaches the first defect. The plea is defective in not alleging that the issue in the former suit was upon the merits. Swift v. Hamblin, Brayt. 189; Chit. Pl. § 647. The discontinuance of the suit after appeal put an end to the action. Gould PL 291; Ilill v. Dumba/p, 15 Yt. 645 ; Ballou v. Ballou et al., 26 Yt. 673.
63 Vt. 463Childs v. Merrill (1891)
Tbe action was case for false and fraudulent representations. Heard upon general demurrer to the declaration at the December term, 1890, Taft, J., presiding. The demurrer was overruled and the defendant excepted. Exceptions passed to the Supreme Court before final judgment.
63 Vt. 475Taylor v. Hayes (1891)
Trespass for injury to the plaintiffs cow. Plea, the general issue. Trial by jury at the December term, 1890, Taft, J., presiding. Yerdict and judgment for the jfiaintiff. The defendant excepts. The plaintiff claimed that the cow was shot by the defendant while gunning upon his, plaintiff’s, land.
63 Vt. 479Murray v. Mattison (1891)
Trespass for an assault upon one Rose Murray. The suit was brought in the name of the said Rose and her husband, John Murray. The plaintiff moved to amend the writ by striking out the name of John Murray. Heard upon this motion at the December term, 1890, Taft, J., presiding. The motion was allowed and the defendants excepted. The suit was returnable to the June term, 1890. The motion was made at the following December term. No. 25, Acts of 1890 was approved Nov. 26, 1890.
63 Vt. 481Wilcox v. Moon (1891)
Action for libel of tbe plaintiff wife. Heard at tbe Decern - her term, 1889, Tyler, d., presiding, upon general demurrer to tbe declaration. Tbe demurrer was overruled and tbe defendant excepted.
63 Vt. 487Wyman v. Wilcox's Est. (1891)
 Amendment. Introduction in Gounty Gourt of coplaintiff not before commissioners. Under R. L. 939, as amended by No. 47, Acts of 1888, permitting courts to allow the introduction by way of amendment; during the pendency of a suit of new parties, either as co-defendants or co-plaintiffs, the County Court, upon appeal from the allowance of a claim by commissioners in the Probate Court, may permit the joining as co-plaintiff of a party not before the commissioners. .
63 Vt. 490Buzzell v. Still (1891)
Petition for the foreclosure of a mortgage. Heard upon demurrer to the bill at the December term, 1890. Boss, Chancellor, sustained the demurrer, proforma, and dismissed the bill with costs. The orator appeals. The petition alleged that on March 17, 1877, Benj. W. Stilli and Clarinda B. Still executed the mortgage in suit to one S. F.. Frary; that the same was assigned to the petitioner on the second day of November, 1878, with the indebtedness secured by it, and that such indebtedness was still due and unpaid. It then proceeded: “Your petitioner further shows that subsequently to the giving of the above named mortgage as aforesaid, and on the 17th day of April, A. D. 1877, the said Benjamin W. Still and Clarinda B. Still, duly executed to one Mrs. Mary A. Still, wife of one Don H. Still, a mortgage upon the same premises above described, and said premises in said last named mortgage were warranted free from every encumbramce except said mortgage to said Frary; that on the 30th day of October, A. D. 1878, the said Benjamin W. Still and Clarinda B. Still executed and delivered to him, the petitioner, a warranty deed, absolute in form, of said premises, but a mortgage in fact to secure this petitioner for the payment of certain debts which he then had against the said Benjamin ~W. and Clarinda B. and for what they might be owing him by reason of his assisting them to provisions and stuff to live on and otherwise, not included in the said Frary mortgage debt, and that in said deed to tins petitioner said premises were warranted free from every encumbrance except said mortgage to said Frary “ and one to Don H. Still; ” that said mortgage to said Frary was duly recorded in the land records in said Strafford on the 17th day of March, A. D. 1877, and said mortgage to said Mrs. Mary A. Still was duly recorded in said land records on the 17th day of April, 1877, and that said deed to this petitioner was duly recorded in said land records on the 31st day of October, A. D. 1878. ■ And the petitioner further shows that the said Don H. Still and his said wife Mary A. Still, brought their petition of foreclosure at the June term of the Court of Chancery, A. D. 1880, within and for the County of Orange aforesaid, against the said Benjamin W. Still and this petitioner, upon the aforesaid mortgage to Mrs. Mary A. Still, therein setting forth among other things “ that one J. W. Buzzell (meaning this petitioner) of Thetford in said Orange county, claims title to the same premises by deed or otherwise,” which said last named allegation was the only allegation therein contained relative to this petitioner or his rights, title, or interest, claimed or otherwise, in and to said premises; that the prayer in said petition was that “ the petitioner prays that the equity of redemption of the said J. W. Buzzell and Benjamin W. Still in the premises may be foreclosed agreeably to the provisions of the seventy-fifth section of chapter 29 of the General Statutes, and that the Hon. Court of Chancery will make such other and further order and decree in the premises as shall appear just and reasonable.” That said last named petition was duly served on said Benjamin "W. Still and on this petitioner and the same was entered in said Court of Chancery at said last named term thereof ; that this petitioner made no answer to said petition in said court and the same was at the term A. D. of said court taken as confessed and decree rendered in said cause for the petitioners therein against the defendants therein, including this petitioner, and the record of said decree is here referred to for more particularity as to the contents thereof.' And this petitioner further shows that said premises were not redeemed in accordance with the terms of said decree and that afterwards and on the 14th day of July, A. D. 1882, the said premises were conveyed by warranty deed by said Don H. Still and said Mary A. Still to one Eugene L. Still now of said Strafford, which said last named deed wras duly recorded in said land records on the 19th day of July, A. D. 1882; that on the last named date the said Eugene L. Still and his wife Clara R. Still executed to one Lucius D. Parker of said Strafford a mortgage deed of the same premises which was duly recorded in said land records on the 26th day of July, A. D. 1882.” The prayer was for foreclosure against Benj. W. Still, Eugene L. Still, Clara R. Still, and Lucius D. Parker. The mortgage to Mary Still excepted by its terms the Frary mortgage. Hence the interest covered by the Frary mortgage never was conveyed to her at all. Gihon v. Bellimlle White Lead Co., 7 N. J. Eq. 533; Rose v. Page, 2 Sim. 471; Buchanan v. Balkvm, 60 N. H. 406; Jones Mort. Sec. 676; Jerome v. McCarter, 94 H. S. 734. The owner of the Frary mortgage was not a proper party to the foreclosure of the Mary Still mortgage. Jones Mort. Sec. 1394; Kingsley v. Scott, 58 Yt. 473; Andsley v. Horn, 26 Beav. 195; Eagle Fire Co. v. Lent, 6 Paige 637; Story Eq. PL Sec. 193 and notes; 1 Daniel Oh. Pl. and Pr. 262. The decree in that case is of no effect as against the owner of the prior Frary mortgage. Jones Mort. Sec. 1439; Story Eq. Pl. ss. 84, 186. The mere fact that he was made a party to that suit will not affect his rights so long as there were no allegations in the bill to draw in question the superiority of his mortgage. Jones Mort. Sec. 1439; Mu. Lñfe Lns. Co. v. Stxvrges, 33 N. J. Eq. 336; Arnold v. Welch, 46 N. J. Eq. 547; Houghton v. Reynolds, 2 Hare 264 and notes; JDcmson v. Danbury Bank, 15 Mich. 489 ; Jones Mort. Sec. 1439; Straight v. Harris. 14 Wis. 509; Williamson v. Probasco, 8 N. J. Eq. 571; Strober v. Downer, 13 Wis. 10; Lewis v. Smith, 5 Seld. (N. Y.) 502; Frost v. Coon, ”30 N. Y. 428; Sham v. Ghamiberlvn,, 45 Yt. 412; Carpenter v. Millard et al., 38 Yt. 9. There was no merger. Carpenter v. Gleason, 58 Yt. 244; Belknap v. Dennison, 61 Yt. 520; Hoppock, Fa?r. v. Ramsey, 28 N. J. Eq. 417. The orator having been made a party to the foreclosure suit of Mary Still, is concluded by that decree. Baldwim, v. Howell, 45 N. J. Eq. 519 ; Bruen v. Hone, 2 Barb. 586, 596 and 597; Le Guen v. Governeu/r, 1 John. 436, 491, et seg.; Tollman v. Ely, 6 Wis. 244, 257 and 258.
63 Vt. 496State v. Freeman (1891)
Complaint for profane swearing, based upon R. L. 4254, which came into the County Court upon appeal from the judgment of a justice. Trial by jury at the December term, 1888, Yeazey, J., presiding. Yerdict of guilty. After verdict the respondent moved in arrest for that the complaint did not set forth with sufficient definiteness the offence. Motion overruled and sentence imposed. Exceptions by the respondent.
63 Vt. 505Town of Corinth v. Emery (1891)
Ejectment to recover possession of certain lands in the town of Corinth. Plea, the general issue. Trial by court at the De' eember term, 1890, Boss, Ch. J., presiding, upon an agreed statement of facts. Judgment pro forma that the plaintiff recover possession of the demanded premises with $50 damages and costs. The defendant excepts. The premises in question were deeded to Loren Emery and . wife in 1879, and had always been jointly occupied by them.
63 Vt. 510Rowell v. Town of Vershire (1891)
Assumpsit. Trial by jury at the December. term, 1890, Ross, J., presiding. The plaintiff claimed to recover for the support of his insane daughter, Lemyra A., under a contract with the overseer of the poor of the defendant town. The case was first tried at the June term, 1888, when a verdict was rendered for the plaintiff. Upon exceptions in the Supreme Court, 62 Yt. 405, that judgment was reversed and the cause remanded.
63 Vt. 513Walton v. Walton's Estate (1891)
A. E. Walton, against said estate, was disallowed. Heard upon the report of a referee and exceptions thereto at the June term, 1890, Tyler, J., presiding. J udgment for the defendant. The appellant excepts. The referee found for the defendant without submitting any question of law to the court, or making any alternative finding.
63 Vt. 517Prescott v. Town of Vershire (1891)
Assumpsit for the amount of a town order. Plea, the general issue, payment, and the statute of limitations. The plaintiff traversed the first two pleas, and to the last replied a new promise. Trial by jury at the June term, 1890, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant, excepts. The order was dated September 10, 1879, and the writ in the cause was issued March 21, 1887.
63 Vt. 520Tenney v. Harvey (1891)
Action for false imprisonment. Plea, the general issue with notice of special matter. Trial by jury at the June term, 1890, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendants except. The defendants sought to justify the arrest under a writ of possession which had issued as a capias against the plaintiff. The real estate of the plaintiff had been levied on and sold by the defendant Smith under an execution in favor of the town of Corinth.
63 Vt. 527Hathaway v. Sabin (1891)
Assumpsit for tlie amount clue on a written contract. Plea, tlie general issue with notice of special matter. Trial by jury at the September term, 1889, Ross, J., presiding. The court di_ reeted a verdict for the plaintiff. Exceptions by the defendant. The case appears in the opinion. A party is not excused from performance of a contract by inevitable accident or other unforeseen contingency. 2 Par. Cont. 673, note h. 3. W. Kemp and H. A. Kuse, for the defendant.
63 Vt. 532Wing v. Smilie (1891)
Petition for mandamus returnable to the May term of the Supreme Court, Washington county, 1891. Heard upon petition, answer and agreed statement of facts.
63 Vt. 534Smith v. Wood (1891)
 Conditional sale. Vendee entitled to possession. Trover. A conditional vendee is entitled to the possession of the chattel until taken and sold by a public officer under No. 93, Acts of 1884, and may maintain trover against the vendor who takes and sells the same at private sale.
63 Vt. 537Smith v. Dana (1891)
Trespass for false imprisonment. Heard at the September term, 1890, Munson, J., presiding ’ upon demurrer to the plaintiff’s replication. The court sustained the demurrer. The plaintiff excepts. The case appears in the opinion. At the time this settlement was made the jurisdiction of the justice was suspended so that the town grand juror had no control over it. State v. Wooley et al., 44 Vt. 363. The town agent has nothing to do with the town’s criminal suits. Bwrtonv.
63 Vt. 541Reynolds v. Village of Barre (1891)
Report of commissioners establishing a highway in the village of Barre. Heard at the March term, 1891, Munson, J., presiding. The report was filed less than fifteen days before the beginning of the term.
63 Vt. 544Waterman v. Buck (1891)
Bill in chancery to recover damages for injuries done the plaintiff’s meadow by the deposit of sawdust and other mill waste in the G-ilion river. The case was finally disposed of at the December term, 1889, Powers, Chancellor, by a decree for the orator. The defendants appeal. The history ‘of the case and the questions considered are fully stated in the opinion. 'The -right of the orator to proceed by supplemental bill could not be questioned on the hearing before the master.
63 Vt. 555Robinson v. Stevens' Adm'r. (1891)
This was a petition to bring forward tbe case of O. G. Stevens v. J. M. Butters, and strike off the judgment. Heard at the February term, 1891, Tyler J., presiding. The court dismissed the petition as a matter of law, for that the petitioner had no such legal interest as would entitle him to prefer it. The petitioner excepts.
63 Vt. 557Drown v. Forrest (1891)
Assumpsit. Plea, tlie general issue with notice of special matter. Trial by jury at the September term, 1890, Powers, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts.
63 Vt. 563Sowles v. Flinn (1891)
Petition for mandamus to compel the defendant as register and acting judge of the Court of Insolvency for the district of Franklin to appoint commissioners under R. L. 1862. Heard upon answer and testimony. The question raised and decided appears in the opinion. Mandamus is the appropriate remedy. R. L. 1378; Bed-field v. Windham, 137 H. S. 643-4; St. Albans v. National Car Co., 57 Yt. 68. The court should have appointed commissioners. R. L. 1862.
63 Vt. 566Cook v. Town of Barton (1891)
Action for insufficiency of a highway. Heard upon general demurrer to the third count in the declaration, at the February term, 1891, Tyler, J., presiding. Demurrer overruled. The defendant excepts.
63 Vt. 570Darling v. Stuart (1891)
Action for deceit and false warranty in the sale of a horse. Plea, the general issue. Trial by jury at the June term, 1890, Powers, J., presiding. Yerdict and judgment for the defendant. The plaintiff excepts. The defendant obtained the horse from his brother in Illinois in the winter of 1889, and sold him to the plaintiff in July of the same year. It appeared that the defendant had used the horse somewhat about his farm work while he owned it.
63 Vt. 577White's Admr. v. White (1891)
White with the payment of the debt of M. B. Hall. Trial by court at the December term, 1890, Tyler, J., presiding, upon an agreed statement of facts. The decree of the Probate Court was reversed, and judgment given that the homestead was not chargeable with the said debt. M. B. Hall having been made a party to the proceedings, excepted. The case appears in the opinion.
63 Vt. 581Lyndon Mill Co. v. Lyndon Literary & Biblical Institution (1891)
General assumpsit. • Trial by court at the December term, 1890, Tyler, J., presiding. Judgment for the plaintiff. The defendant excepts. The findings of fact by the court were as follows: “The plaintiff and defendant were corporations located at Lyndonville. Books of record were put into the case showing the charters, by-laws and elections of officers in each corporation, and transcripts from the pages referred to in evidence are made part hereof.
63 Vt. 590Sanborn v. Cole (1891)
Assumpsit. Plea, the general issue with notice of special matter. Trial by jury at the June term, 1889, Boyce, Ch. J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts. The plaintiff sought to recover upon five promissory notes, four for $100 each, and one for $50. All the notes bore date, August 31, 1871, and were made payable to one Sanborn, the former husband of the plaintiff, who died in 1877 or 1878.
63 Vt. 601Hall & Chase v. Simpson (1891)
Action, trespass and trover. Tlie defendant justified under a tax warrant. Trial by court at tlie June term, 1890, Powers, J., presiding. Judgment for the plaintiff. The defendant excepts. The plaintiffs moved in Supreme Court to dismiss the exceptions. The case -appears in the opinion. The first bill of exceptions was seasonably filed. The second bill was merely in amendment of the first. The exceptions should be dismissed.
63 Vt. 604State v. Switzer (1891)
Indictment for procuring the signature of John C. Tibbetts to certain promissory notes. Heard upon general demurrer at the June term, 1890, Powers, J., presiding. Demurrer overruled, pro forma. The defendant excepts. The questions decided appear in the opinion. It should be alleged that the pretences were feloniously made. 1 Bish. St. Cr. ss. 387, 452; 4 Black. Com. 307; 2 líale P. C. 184; 1 Oliitty O. L. 242; State v. Wheeler, 3 Yt. 344.
63 Vt. 609Thomas v. Carter (1891)
G-enei-al assumpsit. Plea, the general issue with notice of special matter. Trial by jury at the December term, 1889, Koss, J., presiding. Judgment for the plaintiffs for the amount paid by them less the amounts received from Hall’s estate and Jones. Both parties except. The case appears in the opinion. The damages recovered by the plaintiffs were properly reduced by the amount received from Jones and the Hall estate.
63 Vt. 617Currier v. Richardson (1891)
Action for slander. Plea, the general issue with notice of justification. Trial by jury at the December term, 1890, Thompson, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts. The opinion states the case. It was error to allow the full record to be read. The court should inspect the record and tell the jury what fact it establishes. Thomp. Trials, sec. 1029.
63 Vt. 622Pease v. Shirlock (1891)
This was an action in ejectment brought by the administrator of William Shirlock against Frank Shirlock and William Martin. Plea, the general issue. Trial by jury at the December term, 1890, Thompson, J., presiding. Yerdict and judgment for the plaintiff. The defendants except. The demanded premises were a farm worth from $1,700 to .$2,200, on which were a dwelling house and out-buildings of the value of from $700 to $800.
63 Vt. 629Baxter v. Blodgett (1891)
 Equity. Special master. Conclusiveness of findings. Exceptions to report. Deed. Proof of acknowledgment. Mortgage. 1. Where the evidence tends to support the finding of a master, such finding is conclusive. 2. Where one of the subscribing witnesses to a deed is without the jurisdiction of the court, and the justice of the peace who took the acknowledgment and acted as the other subscribing witness is dead, evidence that the signature to the deed is in the handwriting of the grantor and that the person taking the acknowledgment was at that time a justice tends to show its execution and acknowledgment. 8. The defendant applied to the intestate for a loan of §10,000. The intestate did not then have the ready money, and it was arranged to raise it upon his endorsement. The defendant accordingly executed four notes for §2,500 each payable to the order of the intestate, who endorsed and delivered the same to the defendant with the understanding that they were to be negotiated by him and taken care of when due by the intestate. The mortgage in suit was executed to secure the payment of these notes. The notes were negotiated by the defendant and subsequently paid, one by the intestate in life, the other three by his estate. Held, that the estate was entitled to a decree for the amount due on the notes with annual interest according to their tenor. 4. No question upon the admission of testimony before a master can be raised in Supreme Court unless the objection is made by exception to the report duly filed in the Court of Chancery.
63 Vt. 634Holt v. Babcock (1891)
 Trustee process. Notice of assignment. Notice of the assignment of a debt g'iven by the assignee to the wife of the debtor and by her communicated to the debtor, will protect the assignment as against trustee process.
63 Vt. 636State v. Kibling (1891)
Information charging the respondent with liquor selling. Plea, not guilty. Trial by jury at the December term, 1890, Thompson, J., presiding. Yerdict guilty, and judgment upon verdict. Exceptions by the respondent.
63 Vt. 647Cobb v. School District No. 1 (1891)
 School district. Prudential committee's powers. Receipt for school register. 1. A prudential committee can bind bis school district for the expenses of a term of school which the district has not voted to maintain. 2. Under the school law of 1888 a teacher who had properly kept and returned his school register, could recover his wages, notwithstanding that the district clerk refused to give him a receipt for it, notwithstanding that No. 9, s. 192, Acts 1888, provided that no teacher should be entitled to his wages except upon the presentation of such receipt.
63 Vt. 653Johnson v. Porter (1891)
General assumpsit for the price of a casket. Plea, the general issue. Heard on referee’s report at the May term, 1890, Rowell, J., presiding. Judgment for the plaintiff. The defendant excepts. The report of the referee was as follows: “ The single matter in dispute is whether defendant is liable to pay for a burial casket sold by plaintiff.
63 Vt. 656Whitcomb v. Davenport's Est. (1891)
This was an appeal to the County Court from an order of the Probate Court for the district of Windsor, dismissing the petition of the appellant. Iieard at the December term, 1890, Thompson, !., presiding. The appeal was dismissed. Exceptions by the appellant. The appellant petitioned the Probate Court to renew the commission for the allowance of claims against the estate of one A. K. Davenport, alleging that she had a valid claim against the said estate; that she was informed that some claim had been presented to the commissioners in her name and disallowed by them, but that the same was without her knowledge or authority; and that the commission had been closed. The Probate Court denied the petition, and this appeal was taken. It appeared from the record, which was certified up by the Probate Court, when the petition was presented ; but it did not appear when the time previously limited expired, nor what questions were considered and adjudicated upon by the court in dismissing the petition. In the County Court the appellee moved to dismiss the appeal, 1st, because no appeal would lie in the premises. . 2d, because it did not appear that the petition was seasonably filed. Thereupon the appellant moved to amend the petition in this latter respect. The court denied the motion to amend as matter of law and not of discretion, and dismissed the appeal. It is not alleged in the motion to dismiss, and does- not ap- ' pear that the petition was not filed within the six months. Hence the presumption will be that it was. Timothy dc Holden v. Farr, Admr., Appt., 42 Yt. 43. An appeal lies from an order resting in the discretion of the Probate Court. Adam-s v. Adams, Admr., 21 Yt. 162. Tlie County Court had no appellate jurisdiction. The peculiar phraseology upon which the decision in Adams v. Adams, 21 Yt. 162, was placed, is not found in the Revised Laws. It not appearing that the petition was brought within the six months the court had no jurisdiction. Sleeper v. Gould’s Estate, 53 Yt. 111.
63 Vt. 661In re Hodges' Estate (1891)
Tbis was an appeal from an order of fclie Probate Court for, the district of Hartford dismissing the petition of O. H. Austin, administrator of Polly Hodges. Heard upon the report of a commissioner at the May term, 1890, Howell, J., presiding. Judgment pro forma for the appellee. The appellant excepts. The petition prayed for an accounting by Smith Hodges as the executor of Polly Hodges under the circumstances stated in the opinion. The Probate 'Court dismissed the petition. The County Court appointed a commissioner to state the account of Smith Hodges as executor. Hpon the hearing before the commissioner, Smith Hodges proved that, since the death of Polly Hodges, lie had paid over the principal fund in accordance with the terms of the original decree, and in lieu of any accounting as to the income, introduced the contract between himself and Polly Iiodges, by which she released him from all liability in that respect in consideration of his agreement to support her for life. The petitioner insisted that this contract was not binding upon Polly Hodges or her estate, and that the executor should render an account of the expenditure of the income; but in view of the expense of such an accounting the commissioner decided that he would only receive evidence as to the execution of this contract; and in that respect he reported : “At the time said contract was made said Polly Hodges was about 81 years old, was somewhat feeble in body, but was of sound mind when she executed the contract, and fully understood its nature and effect. She had considered the question for some time before she executed it, and had sought the advice of one of her granddaughters upon the subject, who declined to advise her. At the time it was executed it was read over to her, and she assented to it, and said it was ‘ all' right.’ She then signed it in the presence of two of the daughters of Smith Hodges, who signed as attesting witnesses. It did not appear that at the time said contract was executed, or at any other time, the condition of said trust fund was explained to her, or whether or not there was any unexpended balance thereof remaining in the hands of the said executor. No evidence was offered upon this subject. Nor did it appear that said executor at any time during the continuance of said trust had rendered an account thereof to hel- or to the Probate Court. The fact of the contemplation of said contract was not made known by either Smith Hodges or his mother to any of her other children until after it was executed. At some time after its execution Mrs. Bryant and Mrs. Thomas, two of her daughters, knew of it and of its terms and made no objection to it until after their mother’s death.” The Probate Court had jurisdiction to compel an accounting as to the income. Keeler v. Ex'rs. of Keeler, 39 Yt. 550; French, et al. v. FrencKs .Estate, 46 Yt. 357 ; Probate Oourt v. Chaplim,, 31 Vt. 373 ; Bank of Orange Oownty v. Kidder et, 20 Vt. 519; Probate Oourt v. Blasón efe Mead, 23 Vt. 306; Probate Oourt r. Vanduzen, 13 Vt. 135 ; Adams v. Adams, 22 Vt. 58 ; Boyden v. Admr. of Ward cmd Tr., 38 Vt. 633 ; Merriam, Admr. v. Kemmenwa/y, 26 Vt. 565. Smith Hodges was the trustee of this fund. Hill Trustees, 335; Olarl&Y. Poioell, 62 Vt. M2; Gatlin y. Kill, 21 Vt. 152 ; Dorr y. Wainwright, 13 Pick. 328 ; Gar son v. Oar son, 6 Allen 397. The contract between Smith Hodges and his beneficiary is not binding upon the beneficiary or her estate. Arnold v. Brown, 24 Pick. 96 ; Kerr. Fr. & Mis. 152; 2 Parson Cont. 271; JBisp. Eq. 3d Ed. 291; Adams’ Eq. 161 and 377; Story Eq. Jur. ss. 307, 308 ; Gibson y. Jeyes, 6 Vesey 266; Katoh y. Katch, 9 Vesey 292 ; Sean's v. Shafer, 6 N. Y. 268 ; Greenfietdis Estate, 14 Penn. 504 ; Oook v. Sarnotte, 15 Beav. 234 ; Osmond y. Firzroy, 3 P. Will. 129 ; Ruben y. Kicks, 4 Brad. (N, Y.) 136 ; Brown v. Oowell, 116 Mass. 465 ; Wormley y. Wormley, 8 Wheat. 421. The Probate Court had no jurisdiction. It has no authority except that conveyed by statute. Kendrick y. Cleveland, 2 Vt. 329; KoldenY. ScanUn, 30 Vt. 177; Probate Oourt v. Lynch, 57 Vt. 282. It has no power to enforce its final decrees for the payment of money. In re Brigham, 32 Vt. 329; 3 Kedf. Wills, sec. 412. Its proceedings are i/n rem and binding on all the world including itself. Rex v. Smith, 8 Vt. 365; Probate Oourt v. Merriam, Ibid, 234; Bennett v. Gamp, 54 Vt. 36. The Probate Court did not and had no authority to appoint Smith Hodges a trustee; but even if he were a trustee, he might make a valid settlement with his mother so long as it was made understandingly and in good faith. Hill Trustees, ss. 159, 537 ; 1 Story Eq., s. 321; Goles v. Trecotrich, 9 ves. 244.
63 Vt. 667Hurlburt v. Hurlburt's Est. (1890)
. This was an appeal from a decree of tbe Probate Court for the district of Chittenden. Trial by jury at the April term, 1889, Chittenden county, Powers, L, presiding. Verdict for the appellant. The Probate Court decreed distribution of the estate of Wait Hurlburt to his three children, George W. Hurlburt, Mrs. Mary Truell and Edmund W. Hurlburt. Wait Hurlburt died December 14, 1884, in said district.
63 Vt. 673State v. Wheat (1890)
Indictment for an assault with an intent to commit rape. Trial by jury at tbe September term, 1889, Washington county, Ross, J., presiding. Yerdict of guilty. The respondent excepts. Hpon this indictment the respondent cannot be tried for an attempt to carnally know a female under fourteen years of age with her consent. In case of that offence the age of the female is material and must be averred. Reg v. Martin, 9 Car. & P. 215 ; State v. Storkey, 63 N. C. 7 ; O'Meara v. State, 17 Ohio State 515 ; Reg v. Shoot, 3 Car. & K. 206 ; Greer v. State, 50 Ind. 267 ; Yasser v. State, 55 Ala. 264; Williams v. State, 1 Tex. 90. See also Motley v. State, 46 Miss. 301; Bonner v. State, 65 Miss. 295. There can be no indictment for sncli an offence, for if the female consents it is not an assault. Bex v. Gocltburn, 3 Oox O. O. 543 ; State v. Pickett, 11 Nev. 255 ; Beg v. Boadley, 14 Cox C. O. 463 ; Beg v. Martin, 9 Car & P. 213 ; Beg v. Johnson, 10 Oox O. O. .114; Beg v. Bay, 9 Car & P. 722; Smith v. State, 12 Ohio St. 466. The female being under fourteen years of age, the charge of the court that her consent was immaterial, was correct. Mays v. People, 1 ITill 351; O’Meara v. State, 17 Ohio St. 575 ; Fizell v. State, 25 Wis. 364; People v. McDonald, 9 Mich. 150 ; State v. Dancy, 13 N. O. 603; Williams v. Stale, 47 Miss. 609 ; Givens v. Gom., 29 Grat. 130; 2 Abbott’s Law Diet. p. 378, Pape; Dawson v. State, 29 Ark. 116; State v. Mand/y, 4 Har. (Del.) 566 ; State v. Gross, 12 Iowa 66 y State v. FiVmcm, 30 La. 1249 ; Steven v. State, 11 Ga. 225 ; State v. Grosshim, 44 N. W. Pep. 541; Peoples. Gonlette, 45 N. W Pep. 1124]■ State v. Storkey, 63 N. C. 7; Mayo v. State, 7 Tex. 342; Bex v. Beale, 10 Cox O. O. 157; Bex v. Locke, Law Pep. 2 C. C. 10; Bisk. St. Or. sec. 492. It was not necessary to aver the age of the female. Gom. v. Sugland, 4 Gray 7; Gom. v. Sullivan, 6 Gray 477 ; People v. Ah Yek, 29 Cal. 575 ; State v. Johnson, 76 N. O. 209 ; Mayo v. State, 7 Tex. 342.