Volume 64 — Vermont Reports

This was a bill in chancery brought to restrain the defendant from moving its fences along the line of -its track where the same crossed the premises of the orator. Heard .at the September term, 1890, Rutland county, upon bill, answer and stipulation. Taft, Chancellor, dismissed the orators’ bill pro forma. The orator appeals.

Bill in chancery to enjoin the defendants from obstructing a watercourse. Heard upon the pleadings and a masters’ report at the June term, 1890, Bennington county. Royce, Chancellor, decreed for the orator. The defendants appeal. The orator is the owner of a farm upon the Battenkill river.

<p>Case for injuries done the plaintiffs dog. Plea, the general :issue. Trial by jury-at the September term, 1890, Rutland County, Taft, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff boxed his dog, which was a valuable mastiff bitch, for shipment by express to Long Island, and notified the defendant’s agent at Fair Haven. Thereupon the defendant’s agent sent the express wagon to the plaintiff’s residence, where the dog was, to transport it from there to the express office. 'While on the way the dog was so injured as to render it unfit for breeding purposes.. The defendant denied its liability, first, because the agent had no authority to receive the dog at the residence of the plaintiff, second, because the plaintiff had been notified that the dog if sent would be at the owner’s risk, and had shipped it upon that condition. The questions raised by the exceptions appear in the opinion.</p> <p>The plaintiff’s second request was as follows :</p> <p>“ A person who had no duties relative to express matter, except to take packages from the railroad office to the consignees, and take similar parcels from consignees to the office of the company for transportation, has no authority to bind the company by an acceptance of goods, and until a delivery of the goods to an agent authorized to accept them, there is no responsibility attaching to them as common carriers.”</p> <p>The delivery to the defendant’s agent outside its office was not a delivery to the defendant. Oronkrite v. Wells, 32 N. Y. 247; Blanehard v. Isaacs, 3 Barb. 388; Judson v. Bailroad, 4 Allen 520.</p> <p>Experts might testify as-to the pedigree and value of this dog. Greenl. Ev. s. 480 ; Bemis v. Bailroad, 58 Yt. 636 ; I Redf. R. R., 291.</p> <p>Evidence that the defendant had suffered its agent to receive parcels away from the office as in this case, would justify the plaintiff in believing that lie had authority to do so. Bank v. Express Go., 93 IT. S. 184; Cool. Torts, 120 ; 1 Redi R. R., 132 : Bcmk v. Champlain Transportation Go., 23 Yt. 186.</p>

<p>Action on tbe case for injuring the plaintiff’s horse. Plea, the general issue. Trial by jury at the September term, 1890, Washington county, Munson, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff hired the horse pastured by Bedell & Abbott, who owned the farm where it was injured. The horse was kept in a pasture, between which and the defendant’s track there was a sufficient fence. It escaped from the pasture, into an adjoining meadow belonging .to the same farm through the fence separating the two lots, and from there passed on to defendant’s track.</p> <p>.The defendant requested the court to charge as follows :</p> <p>“That the undisputed evidence shows that the plaintiff’s horse was to be kept in this pasture; therefore the horse could not be lawfully upon any other part of the farm. The whole evidence shows the horse did not escape over the defendant’s fence, but the fence of Bedell & Abbott onto other lands where he had no legal right, the horse then had strayed unlawfully on the right of way of the defendant and the plaintiff cannot recover.”</p> <p>The court refused to so charge, and upon this point instructed the jury as follows :</p> <p>“ The owners of the farm had a right to have the horse in either the pasture or the meadow, and as against the railroad company the horse would have been rightfully in the meadow after escaping from the pasture through the dividing fence between the two lots. So that the railroad company is liable for the injury resulting to the horse from getting upon the railroad track after escaping through the bars, unless the owners of the farm had in some way waived the building of a fence against the meadow.”</p> <p>The defendant excepted to the refusal of the court to charge as requested, and to so much of the charge as is above given.</p> <p>The horse being improperly upon the meadow, the plaintiff cannot recover. Holden v. Rutland c& B. R. Go., 30 Yt. 297 ; Saxton v. Bacon, 31 Yt. 510.</p> <p>Bedell & Abbott were to pasture this horse and might lawfully keep it on any part of their farm. It was no more unlaw- ■ fully in this meadow than as if it had been their own. Jackson v. Rut. <& Bur. R. Go., 25 Yt. 150, 161; Morse v. Rut. <& B%vr. R. Go., 27 Yt. 19; Bemis v. Oonn. <& Pass. R. R. Go., 12 Yt. 375.</p>

<p> Breach of the peace. Firing guns and blowing horns in clay time. R. L. ss. 1$%8 cmd fBSf </p> <p>1. A complaint setting forth that the respondent “ did disturb and break the public peace by tumultuous and offensive carriage, by filing guns, blowing horns, and beating tin-pans,” charges an offence under R. L. s. 4228.</p> <p>2. Because these acts are punishable under R. L. s. 4284 when done in the night time, it does not follow that they may not under some circumstances amount to a breach of the peach in the day time.</p>

<p> Mcdntenmice of bridge not within the limits of a town. Vacation of previous assessment. No. 16 Acts of 1886. No. 18 Acts of 188f Vested rights. Strafford v. Sharon, 16 'Vt. 1%6, criticiBed. </p> <p>1. Under No. 16 Acts of 1886, amending No. 18 Acts of 1884, which related to the maintenance of highways and bridges by towns benefited thereby, no town can be compelled to contribute to the expense of maintaining a highway or bridge not wholly or in part within its limits. The only effect of that act is to provide a method by which towns already assessed for such contribution can have that assessment vacated</p> <p>2. No vested right was created by a judgment under the law as it formerly stood assessing a town for a portion of .the expense of maintaining a highway or bridge not within its limits. Strafford v. Sharon 61 Vt. 126, so far as it rests upon this ground, criticized.</p>

<p> School district. Presumption as to organization of union district. Not dissolved by adoption of town system. </p> <p>1. A school district, composed of territory from two or more towns, which has maintained an organization .and acted as a school district since 1800, will stand, as to being dissolved, like a union district formed by the concurrent votes of two or more towns.</p> <p>2. Such a district would not be, as the law was in 1886, dissolved by the adoption of the town system by that town in which the school house was located.</p>

Tins was an appeal by the petitioner from an award of damages to Mm for the taking of certain water rights. Heard upon the report of commissioners and exceptions thereto at the June term, 1890, Tyler, J., presiding. Judgment for the smaller sum named in the report. The petitioner excepts. The petitioner was the owner of several large springs the water from which ran in well defined courses across his land and on to and across the lands of other persons.

<p>Complaint for selling, furnishing and giving away intoxicating liquor, appealed from the judgment of a justice. Trial by jury at the March term, 1891, Washington County, Munson J., presiding. 'Verdict, guilty of one offense. The respondent excepts.</p> <p>The respondent moved the court to direct a verdict for that there was no evidence tending to establish the offense alleged, and excepted to the action of the court in overruling said motion.</p> <p>The nature of the evidence appears in the opinion.</p> <p>He also excepted to the following charge of the court as to what would constitute a furnishing :</p> <p>“ For the purposes of this trial we instruct you that if the respondent procured, and knowingly transported to the witness Ewing, the liquor testified to by Ewing, from the place where it was procured to the place where it was used, knowing at the time he undertook to procure and bring it, that after being so brought it was to be shared between him and the witness Ewing, in the manner which the testimony tends to establish, the respondent is guilty of an offense under the statute.”</p>

Assumpsit. Plea, tlie general issue. Trial by jury at the September term, 1890, Washington county, Munson, J., presiding. Yerdict and judgment for the plaintiff. The defendant, Sarah E. Newcomb, excepts. The defendants were husband and wife. The defendant husband made no defense. The plaintiff sought to recover a balance due for certain cattle sold and delivered to the husband and by him slaughtered at Montpelier.

<p>This was a bill in chancery brought by the orator to obtain compensation for damages done his land by the construction and maintenance of the defendant’s railroad. Heard at the September term, 1890, Franklin county, upon the pleadings, a special master’s report, and exceptions by the defendant thereto. Taft, Chancellor, pro forma, overruled the exceptions and decreed that the defendant pay the damages reported by the master. The defendant appeals.</p> <p>It appeared that the railroad in question was constructed in the years 1876 and 1877, by the Lamoille Valley Railroad Co. In 1876 that company issued its bonds secured by mortgage upon its railroad and franchises. Default having been made, this mortgage was foreclosed and a decree obtained in December, 1879. The terms of this decree not having been complied with, .the mortgage bond-holders formed themselves into a corporation under the name of the St. Johnsbury and Lake Champlain Railroad Company. That company, being the defendant in this suit, took possession of the railroad on the first day of July, 1880, and has continued to operate the same ever since. The master found that in the proper use and occupation of the said railroad the defendant had so far maintained, and must necessarily continue to maintain tíre crossings, approaches, fills, slopes, and embankments now existing in reference to the orator’s land.</p> <p>The questions raised and decided sufficiently appear in the opinion.</p> <p>In making the fills and embankments reported by the master, and maintaining the same, the defendant has taken tlie orator’s land within the meaning of the constitution. Winn v, Rut-land, 52 Yt. 481; Pwnvpelly v. Qreen Bay Co., 13 Wall. 166; Eaton y. B. C. dé M. R. R., 51 N. H. 104; Waller v. Old Colony dé Newport Ry. Co., 103 Mass. 16; Hatch, v. Vermont Central Railroad Co., 25 Yt. 49; Waterman v. Conn, dé Pass. R. R. Co., 30 Yt. 610.</p> <p>The necessary approaches to a highway crossing form a part thereof. Roxbury v. Railroad, 60 Yt. 121; Burritt v. City of New Hmen, 42 Conn. 174, 179.</p> <p>The maintenance of the fills and embankments within the limits of the highway, imposes an additional burden for which the orator may recover damages. Williams v. N. 7. C. R. R., 16 N. Y. 97; Henderson et al. v. N. T. C. R. R. Co., 78 N. Y. 423 ; Brainerd v. Missisguoi R. R. Co., 48 Yt. 107; Louisville dé N. H. R. R. Co., v. Finley, 86 Ky. 295 ; 2 Wood Ry. Law, 722 to 723, and cases cited.</p> <p>The defendant by having maintained these various encroachments upon the orator’s land since 1880, is liable for the same as of that date. Conhocton Stone Road v. Buffalo etc., R. R. Co., 51 N. Y. 573; Dodge v. Stacy, 39 Yt. 560; R. L. ss. 3461, 3470-1.</p> <p>The parol evidence as to the eastern limit of the highway was properly received for the purpose of showing what the parties intended by that description in the deed. Knight v. Heaton, 22 Yt. 480; Barnard v. Russell, 19 Yt. 334 ; Bagley v. Morrill, 46 Yt. 94; Tuller v. Baxter, 59 Yt. 467.</p> <p>The grading the highway east of the orator’s store does not entitle him to damages. The orator’s east line was the east line of the highway which must be established by the survey of 1845, and cannot be otherwise shown by parol evidence. Smith v. Fitzgerald, 59 Yt. 451; Closson v. Hamlet, 27 Yt. 728.</p> <p>But suppose the grading was within the limits of the high way, still the orator cannot Itecover. The grading of this highway did not in any way interfere with the use of the orator or the public therein. The grading of the highway is not an alteration within the meaning of the statute. Hutchens et al. v. Town of Chester, 33 Vt. 410.</p> <p>Neither is it an act for which a town or a railroad company is liable in damages. Penniman v. St. Johnsbury, 54 Vt. 306 ; Richardson et al. v. Vt. Central Rd. Co., 25 Yt. 465; Smith v. Washington, 20 How. 135; Northern Transportation Co., v. City of Chicago, 9 Otto, 625 ; Marlcham v. Mayor, 23 Ga. 402; D%mham v. Hyde Parle, 75 111. 371; Quincy v. Jones, 76 111. 231; Terre Haute v. Turner, 36 Ind. 522; Delphi v. Evans, 36 Ind. 90 ; Marcy v. Indianapolis, 17 Ind. 267 ; Calender v. Marsh, 18 Mass. 416; Brown y. Lowell, 49 Mass. 172 ; Detroit v. Beeleman, 38 Mich. 125; Pontiac v. Carter, 32 Mich. 164; Hovey v. Page, 43 Me. 322; McCormic v. Patchen, 53 Mo. 33; Tate v. Missouri, 64 Mo. 149 ; Pimm v. Canal Co., 10 N. J. Eq. 256; Karst v. St. Paul S. <& T. F. R. Go., 22 Minn. 118; Fellows v. New Haven, 44 Conn. 240 ; New Haven v. Sargent, 28 Conn. 50; O'Connor v. Pittsburg, 18 Pa. St. 187; Furman v. State, 17 Wend. 649.</p> <p>It was the duty of the Lamoille Valley Rd. Co., to grade this highway for the purpose of providing a crossing, and for the discharge of that duty neither that company nor the defendant is liable. Smith v. Washington, 20 Howard, 135 ; The Northern Transportation Co. v. City of Chicago, 9 Otto, 625.</p> <p>There can be no recovery for an alteration in the flow of surface water. Abbott v. Kansas City, St. J. & O. B. R. Co. 83 Mo. 271; Chatfielcl v. Wilso)%, 28 Yt. 49 ; Beard v. Murphey, 37 Yt. 104.</p> <p>A change in the grade of a highway made necessarily when a railroad. crosses it is not an act for which an abutting landowner can recover damages. JJline v. N. Y. Central R. R. Co., 23 A. & E. R. C. 3 ; OonMin v. JY. Y. Ontario dh Western JR. Oo., 26 A. & E. R. C. 365, S. C. 101 N. Y. 98; Ottenot v. N. Y. de L. da V. B. Oo., 23 N. E. R. 169.</p>

<p>Action on the case. Plea, the general issue. Trial by jury at the September term, Orleans county, 1890, Powers, J., presiding. The court directed a verdict for the defendant at the close of the-plaintiffs evidence, to which the plaintiff excepted.</p> <p>The plaintiff sought to recover for the loss of an arm occasioned by catching the same between the deadwoods of two cars,, which the plaintiff was attempting to couple while in the employ of the defendant as a brakeman. The plaintiff sought to charge-the defendant with negligence in two respects; first, in that the! cars between which his arm was caught were of an improper construction ; second, in that the defendant had not given the plaintiff proper instructions.</p> <p>The evidence of the plaintiff tended to show that the cars in question were both equipped with what are known as doubledeadwoods, being two blocks of wood, or iron, one on each side-of the draw-bar, which meet when the cars are forced together; that the business of coupling cars equipped with double dead-woods was much more hazardous for the brakeman than with ears equipped with single deadwoods ; that the use of double dead-woods had been in a large measure discarded and that no cars so! equipped were now manufactured for its own use by the defendant. It appeared that the cars in question belonged to the Pennsylvania‘.Railroad Company, that they, were in good order- and. were received loaded by the defendant for the purpose of' being transported over its line of railroad. It further appeared that substantially all the cars of the said Penn. "Railroad Co., were provided with ■ dojible deadwoods of the same kind,, and. that several other important railroad .systems also used them. The-witnesses for the plaintiff testified that a person acquainted with cars of this construction and the manner of coupling them, could, with the exercise of ordinary prudence, make the coupling with safety, but that there was more liability to.accidents than with single deadwoods.</p> <p>In l’espect to his secoixd claim, the evidence of the plaintiff tended to show that with cars equipped with single deadwoods the deadwoods did not meet, and that in coupling such cars, the one making the coupling would stand upright, and extend the hand directly into the link and draw-bar, but that with cars equipped with double deadwoods, it was necessary to cax-ry the arm eitherab ove or below the deadwoods, and that if one attempted to couple cax-s provided with double deadwoods in the same way that he would cars with single deadwoods, the axmx would be caught between the deadwoods.</p> <p>At the time of the accident the plaintiff had been in the employ of the defendant for some five or six days, and during all this time there had beexx a full complement of help with the train besides himself. When he hired out to the defendant, he informed .the one who engaged him that he had had no experience whatever as a brakeman. He was at that time about twenty years of age, the son of a farmer, having lived some íxxiles from' the railroad, and having no acquaintance with it save as he had incidently observed it in going upon it from time to time. He testified that, when employed, the one who employed him cautioned him that the business of a brakeman was a very dangerous one, that he must look out for himself, and that the same caution was repeated to him by one or -more of his fellow employees when he begaix work upon the train; that he had also been cautioned by the conductor of the train to look out for cars loaded with lumber; that he had been shown how to make a coupling between cars provided with' single deadwoods, and had repeatedly made such couplings, but that his attention had never been called to the fact that there was, nor did he know that there was such a thing as a double deadwood ; that at the time of the accident he was called upon by the conductor in charge of the train to help in setting out a car, and that in so doing it became necessary to make a coupling between two cars equipped with double deadwoods; that*the cars were moved together slowly; that he was beside the moving ear, and from there walked to the stationary car, adjusted the pin in the draw-bar, then turned and entered the link, standing and extending his arm in the same manner that he had previously done in making cbuplings between cars provided with single deadwoods; that he did not see nor notice the double dead-woods until his arm was caught between them.</p> <p>The evidence of the plaintiff further tended to show that in case of double deadwoods the draw-bars ordinarily met first, as the cars came together, but were forced under by the concussion so that the deadwoods received the shock.</p> <p>It should have been submitted to the jury to say whether or not the defendant had acted with ordinary prudence in putting upon its road cars equipped with double deadwoods. The evidence of the plaintiff tended to show that the use of double dead-woods was much more hazardous to the brakeman than the use of single deadwoods. A master is not obliged to adopt every new device simply because it will contribute to the safety of his employees, but he is obliged to use reasonable prudence thereto ; and whether he does this is for the jury. Wheeler v. Wason Mfg. Go. 135 Mass. 294; Washington de Geo. Rd. Go. v. Mc-Dade, 135 II. S. 554; Northern Pao. Rd. Go. v. Herbert, 116 U. S. 642; T. W. d¿¡ W. Rd. Go. v. Fredericks, II 111. 294.</p> <p>The -fact that this car was a foreign car, is immaterial. By receiving it into its train, the defendant made it for the time being its own car. There was no law which obliged it to receive and transport the car if it was defective either in construction or repair. Gottlieb v. New York Central dec. Rd. Co., 100 N. Y. 462; Goodrich v. N. Y. Gent. dec. Rd. Go., 116 N. Y. 398; Int. ■&c. Rd. Go. y. Kernam, 78 Texas 294; Gutridge v. Mo. Pao. Bd. Go., 94. Mo. 474.</p> <p>" Tlie plaintiff did not assume the risk, unless he knew of it. Ca/rbine's-Adm'r. y. Bén. & Rut.Bd. Go., 61 Vt. 348. '</p> <p>It was the duty of the defendant to instruct the plaintiff.The plaintiff had béerí told howto couple cars provided with single deadwoods. He -did not know-that there was such a thing as & double deadwood. The plaintiff did know that it hauled such •cars in its trains; therefore, it was the duty of the defendant to instruct the plaintiff as to the nature of thése cars, and the manner in which they should be coupled, before setting him to that service. Slier. & Red. Neg. s. 203; Miss. Pao. By. Co. v. White, 76 Texas 102; Louisville dkc. By. Co. v. Frawley, 110 Ind. 13 ; Mo. Pac. Bd: Co. v. Gallbraith, 66 Texas 526 ; Green-leaf v. 1U. Cen. Bd. Co., 29 Iowa 9, 47; Galveston Bd. Co. v. •Garrett, 13 S. ~W. Rep. 62; Wheeler v. Wason Mfg. Co., 135 Mass. 294; O'Neal v. St. Louis dkc. Bd. Co., 9 Eed. Rep. 337; •O'Connor v. Adams, 120 Mass. 431.</p> <p>Whether the plaintiff was guilty of contributory negligence, was under the circumstances of this case for the jury. It was for them to say, whether in the few moments before the cars met, and while his whole attention was concentrated upon the business in hand, he ought to have seen and avoided the danger. .Slier. & Red. Neg. s. 213 ; Planlc v. N. Y. Cent. Bd. Co., 60 N. T. 607 ; Fane v. North. Cent. Bd. Co., 128 H. S. 91; Lawless v. Conn. Bi/oer Rd. Co., 136 Mass. 1; Gustafsen v. Wash-burn do Moen Mfg. Co., 27 N. E. 179 ; Washington & Geo. Rd. Bo. y. McJDade, 135 U. S. 554.</p> <p>These cars came to the defendant loaded and in perfect repair. It was the duty of the defendant to receive and transport them. R. L. 3399. •</p> <p>A considerable number of' the leading -railroad ‘systems in the United States use cars constructed exactly as these were, and the defendant must receive cars so constructed or lose the benefit of the traffic which comes from these roads. It appeared from the testimony, that cars equipped with double deadwoods could be safely coupled by the exercise of proper care, and it has been repeatedly held, that the use of cars so constructed, is not negligence. Michiga/n. Cent. Rd. Go. v. Smithson, 1 Am. & Eng. Ry. Cas. 101; 45 Mich. Rep. 212; Indianapolis &e. Rd. Go. r. Flanigan, 77 Ills. 365 ; Toledo &c> Rd. Go. v. Black, 88 112; Baldwin v. Chicago &c. Rd. Go., 50 Iowa 680 ; Kelley v. Wisconsin Cent. Rd. Co., 63 Wis. 307; 21 A. & E. Oas. 633.</p> <p>A master need not use the best -appliance, but only one which is reasonably safe. Whitwam v. Wis. <& Minn. Rd. Co., 58 Wis. 408; North. Gent.'Ry. Go. v. Kusson et al., 101 Penn. 1; Bodlou v. Chicago, M. St. R. R. R. Go., 54 Wis. 267.</p> <p>The plaintiff-was cautioned that the business which he undertook was a dangerous one, and he was at the time when injured, on the train for the purpose of learning. Having entered the defendant’s employ with full notice of the risks to which he would be exposed, he must assume the hazard himself. Haihaway v. Mich. Gent. Rd. Go., 51 Mich. 253 ; 2 Thomp. Neg. 976 ; Wait Ac. & Def. 417, and cases there cited ; I. B. amd N. R. 'Go. v. Tlanigan, 77 111. 365 ; Baldwin v. O. R. 1 and P. R. Go., 50 Iowa 680 ; Way v. 111. Gent. Rd. Go.,, 40 Iowa 341; Gh. N. W. Rd. Go. v. Ward, 61 111. 131; Toledo, Wabash & Western v. Olark, 88 111. 112; Chicago & c. Rd. Go. v. Olark, 108 111. 113; 15 A. & E. R. Cases 261; O^Keefe v. Thorn, 16 At. Rep. 737 (Pa.)</p> <p>The fact that the plaintiff was a minor at the time he received the injury, does not .vary the rule. Goff v. Norfolk W. Rd. Go., 36 Fed. Rep. 299; Brazil & Chicago Goal Go. v. Gain, 98 Ind. 287; Oi/riak v. Merchants’ Woolen Go., 146 Mass. 182 ; Buckley v. Gutta Percha Mfg. Go., 113 N. Y. 540.</p> <p>The deadwoods between which the plaintiff’s arm was caught, were plainly visible, and it was tbe duty of the plaintiff to have observed them and avoided the danger. He is guilty of contributory negligence in not having done so. 2 Thomp. Beg. 1009; Humphrey v. Newport News M. V. Bd. Go., 33 W. Ya. 135 ; 39 A. & E. B. Cas. 363 ; Kelley v. Wis. Gent. Bd. Go., 63 Wis. 307; 21 A. & E. B. Cas. 633; Lotlvrop v. Nitehburg Bd. Go., .150 Mass. 123 and cases cited.</p> <p>Since there was no conflict in the evidence, the question of negligence was for the court. Greenwald v. Marquette, H.&O. Bd. Go., 11 Mich. 197 ; 8 A. & E. B. Cas. 133 ; Smith v. Potter, 16 Mich. 258; Mitehell v. Chicago & G. T. By. Go., 51 Mich. 236; 12 Am. & Eng. B. Cas. 163 ; Humphrey v. Newport News & Miss. Val. Go., 33 West Ya. 135 ; 39 Am. & Eng. By. Gas. 363 ; Machín v. B. & A. Bd. Go., 135 Mass. 201; Giriak v. Merchants’ Woolen Go., 116 Mass. 182; Lothrop v. Fitchburg Bd. Go., 150 Mass. 123.. Hart v. Peters, 11 Wis. 512; Spaulding v. Oh. & N. W. Bd. Go., 33 Wis. 582-9; Bead v. Morse, 31 Wis. 315; Ballouv. Oh. &N. W.'Bd. Go., 51 Wis. 257; Kan. Pac. By. Go. v. Butts, 7 Kan. 308 ; Fleming v. W. Pac.Bd. Go., 19 Gal. 353 ; Barton v. St. Louis & Iron M. Bd. Go., 52 Mo. .253-8; Fletcher v. Atlantic &c. Bd. Go., 61 Mo. 181; Fast Tenn., Va. & Ga. Bd. Go. v. Bayliss, 71 Ala. 150 ; Herrvng v. Wilmington &c. Bd. Go., 10 Iredell 152 (N. 0.); Biles v. Hol/mes, 11 Ired. 16 (N. 0.); Anderson v. Gape Fear Steamboat Go., 63 N. O. 399 ; Grigsby v. Ohappel, 5 Bich. 113 (S. C.); City of Indianapolis v. Gook, 99 Ind. 10; Goshen v. Smith, 92 Penn. St. 135-8; Philadelphia &c. Bd. Go. v. Bitchie, 102 Penn. St. 125 ; Johnson v. Hudson Bd. Go., 20 N. Y. 73 ; Wilds v. Hudson Bi/oer Bd. Go., 21 N. Y. 130 ; Fox v. Town of Gladstoribury, 29 Conn. 201-8; Toomey v. London &c. By. Go., 91 E. C. L. 566, 571-2; Bandall v. Balt. & Ohio Bd. Go., 109 U. S. 178 ; Goodlett v. Louisville & Nash. Bd. Go., 122 H. S. 391; Latremouille v. Ben. & But. B. Go., 63 Yt. 336-311.</p>

<p>Assumpsit'upon a policy of life insurance. Plea, tbe general issue, and notice of special matter. Trial by jury at the March term, Rutland county, 1889, Ross, J., presiding. The plaintiff offered certain evidence,, as stated, in the opinion, which the court refused to admit. Thereupon the case was withdrawn from the jury and passed to supreme court upon the exception of the plaintiff for the determination of the question raised by this offer..</p> <p>It has been repeatedly held that where the policy excepts “ suicide,” the exception does not apply if life is taken under an insane impulse. Breasted v. Farmer’s L. c& T. Co., 4 Hill 73 ; 8 N. Y. 299 ; Am■ L. L Co. v. Isett, 74 Pa. St. 176; Mutual L. 1. Go. v. Terry, 14 Wall. 580; Oharter Oak L. L. Co. v. Bodel, 95 IT. S. 232; Manhattan L. L. Go. v. Broughton, 109 H. S. 121; Merritt v. Cotton States L. 1. Go., 55 Ga. 103 ; Phillips v. La. E5. L. L. Go., 26 La. Ann. 404; 26 Am. Rep. John Hancock M. L. L. Go. v. Moore, 34 Mich. 41; Sheffer v. Natl. L. L. Go., 25 Minn. 534; Oonn. Mut. L. L. Go. v. Groom, 86 Pa. St. 92 ; Hatha/way v. Natl. Life Ins. Go., 48 Tt. 333; Blackstone v. Standard L. & A. 1. Go., 42 N. W. 156.</p> <p>There can be no “ suicide ” unless the taking of one’s own life is intentional; otherwise it is a mere accident. Pierce v. Travelers Ins. Oo., 31 Wis. 389; Bigelow v. Berkshire L. I. Oo., 93 IT. -S. 281; Hut. Ben. L. 1. Go. v. Davies, Ky. Gt. App. 9 S. ~W. Rep. 812, and see opinion of Earl O. in 65 N. Y. 213 ; Accident Ins. Oo. v. Grandal, 120 IT. S. 527; Horn v. AngloAustr. Ins. Go., 30 Law Jour. N. S. Oh’y. 511.</p> <p>The contract of insurance expressly provided that the defendant should not be liable if the assured died by suicide, whether that act of self-destruction was voluntary or prompted by an insane impulse. That contract was a valid one and should be enforced. Bigelow, Admx. v. Berkshire 1.1. Co., 93 IJ. S.; Degorza v. Knickerbocker L. I. Co., 65 N. Y. 232; Terry v. L. I. Go., 82 IT. S. 236 ; Pierce v. Traveler's Ins. Go., 31 Wis. 389 ; Adkins v. Gol. I. I. Go., 35 Am. Rep. 110 ; Cooper v. Mass. Mut. I. I. Go., 102 Mass. 227.</p>

<p> Interpleader. Interest of orator. When objection may be made. </p> <p>1. A bill of interpleader will not lie if the orator has any interest in the fund.</p> <p>2. Where the fund is the amount colleoted upon a non-negotiable instrument which one of the defendants gave the orator to collect upon the ■understanding that he should apply whatever was collected upon her indebtedness to him, he has such an interest in the suit that he cannot maintain interpleader.</p> <p>3. This objection may be urged upon the coming in of a master’s report after a trial upon the merits, when there has been no decree of inter-pleader, and some of the defendants have answered setting up the fact of interest in the orator.</p>

<p> Husband a/nd wife. Necessaries. Other means of support. Infant. </p> <p>1. A husband is not liable for necessaries furnished his wife who is living apart from him, for a justifiable reason, provided she has adequate means of support from other sources ; and an ante-nuptial agreement may afford such means. .</p> <p>2. Whether such means are adequate is for the jury.</p> <p>3. Dictum, that it is impossible to say from the record whether the defendant is liable for necessaries furnished his infant son who was living with the mother.</p>

<p>Assumpsit. Plea the general-issue. Trial by jury at tlie December term, 1890, Caledonia county, Tyler, J., presiding. Verdict against the defendant Knox for $289.91, and for the defendant Eaton to recover his costs. The plaintiff excepts.</p> <p>The plaintiff claimed to recover a balance due for work done on a farm in Kirby: It was conceded that there was a balance due the plaintiff of $266 and interest. The defendant Eaton contended that he was not liable to the plaintiff for the reason that he had never employed him to render the services sued for.</p> <p>Eaton held the title to the farm on which the work was done. Knox was his uncle; and the claim of Eaton was that he permitted his uncle to live there, but assumed no responsibility as to the expenses of carrying it on.</p> <p>The plaintiff was originally hired by Knox, and did not claim any personal contract with Eaton, but insisted that the relation of Eaton to the property was such that he was liable. Iiis evidence tended to show that Eaton furnished all the stock on the farm, gave directions as to its management, once received some oats raised on it, and that “ Knox occupied and run this farm as a sort of agent of Eaton, but had a kind of interest in it.” "What that interest was did not appear exceptas above stated.</p> <p>In the opening the plaintiff called Knox as a witness to the point that he was the agent of Eaton. This he denied, and thereupon the plaintiff proposed to show that the witness had formerly said that he was such agent. The court excluded the testimony and the plaintiff excepted,</p> <p>The defendant Knox denied that he had paid the plaintiff the amount of his debt in certain wood. Upon this issue the plaintiff offered to show that the wood in question was cut upon the Hall lot, and that one Harris had a lien upon it for its full value, and that this was known to the plaintiff when it was alleged that he agreed to take the wood in payment. The evidence was excluded and the plaintiff excepted.</p> <p>The evidence tended to show that if the plaintiff ever agreed to accept the wood in payment it w'as upon condition that Knox should furnish a team with which to haul it, and that this had never been done. The plaintiff requested the court to instruct the jury that if the defendants had agreed and afterwards neglected to furnish a team, the $266 would thereupon become payable in money.</p> <p>The plaintiff further requested the court to charge that upon the undisputed evidence the wood belonged to Harris; and that the defendant Eaton might be liable if beheld Knox out to the world as his accredited agent, and this was known to the plaintiff. The court refused to charge as above requested, and the plaintiff excepted.</p> <p>The plaintiff should have been allowed to show contradictory statements made by Knox, for he was a party defendant. Batchelder v. Kinney, 44 Yt. 150 ; Fairchild v. Bascom, 35 Yt. 398; Stevens v. Beach, 12 Yt. 585.</p> <p>What Knox had said on former occasions was properly excluded. He was the plaintiff’s witness, and the plaintiff could not impeach him in that manner. Gone v. Eayres, 55 Yt. 24.</p> <p>The jury found that the plaintiff did not agree to take his pay in wood. That issue having been found in favor of the plaintiff, he was not harmed by any error during the trial in reference to it. Sanborn v. Gole, 63 Yt. 592; Currier v. Robinson! s Est., 61 Yt. 196; Sampson v. Warner, 48 Yt. 257.</p> <p>There is nothing in the exceptions to show that the charge as given did not fully cover the question of agency. Error will not be presumed. Tenney v. Smith ds Marvey, 63 Yt. 520.</p>

Indictment for an assault with intent to commit rape. Trial by jury at the December term, 1890, Bennington county, Taft, J., presiding. Yerdict, guilty. The respondent excepted. The case appears in the opinion. Husband and wife are excluded from the privillege of testifying for or against each other as a matter of public policy. 1 Phil. Ev. 18; 1 Best Ev. s. 115; Stein v. Bowman, 13 Pet. 223, Barlcer v. Dixie, Cas. temp. Ilardw. 264; Bently v. Ooolc, 8 Doug. 422. 2 Kent.

Assumpsit. .Plea, tlie general issue. Trial by jury at the September term, Washington county, 1890, Munson, J., presiding. Yerdict and judgment for the defendant. The plaintiff excepts. By putting in further evidence the plaintiff waived his exception to the refusal of the court to direct a verdict. Latremouille, Admr., v. Bennington <& Rutland Ry. Co., 63 Yt. 336.

This was an action on the case for the negligence of the defendant. Plea, the general issue. Trial by jury at the March term, 1890, Rutland county, Munson, J., presiding. Yerdict and judgment for the plaintiff. Exceptions by the defendant. Tlie plaintiff was injured by falling from the platform of one of the defendant’s cars while the train was in motion. The train was an excursion train which had left Rutland on the morning of the accident, and was to run to Burlington.

Trover for the conversion of a waterwheel and certain machinery. Heard upon the report of a referee at the April term, 1891, Lamoille county, Start, J., presiding. Judgment for the plaintiff. The defendant excepts. In 1879 one Lamplough gave the clefendent a mortgage of' a saw-mill. In 1886 the defendant foreclosed this mortgage and obtained a decree which became absolute December 11, 1887.. The plaintiff and his deceased partner were made parties defendant to that suit.

<p> Practice as to costs. </p> <p>1. Tlie supreme court has no discretion in the allowance of costs accruing-in.the county court upon the trial of an appeal from the probate court.</p> <p>2. In the absence of any declaration to the contrary, it is to be -understood that costs in the supreme court are adjudged to the prevailing party.</p> <p>3. Questions as to costs in the county court can only be properly brought before the supreme court by having the costs taxed and the question decided in the lower court and certified up as a part of the case.</p> <p>4. Questions as to costs in the supreme court must be made while the case is before that court.</p>

Petition to foreclose a mortgage. After the coming in of the master’s report, the defendant filed a cross-bill, to which the orator demurred. Heard upon demurrer at the March term, 1891, Washington county. Munson, chancellor, sustained the demurrer and dismissed the cross-bill. The defendants appeal. The opinion states the case. A bill of foreclosure in Yermont simply extinguishes the defendant’s equity in the premises.

Action on tlie case to recover damages occasioned by an insufficient culvert. Trial by jury at the June term, Orange county, 16(89, Taft, J., presiding. At the close of the plaintiff’s case the court directed a verdict for the defendant, to which the plaintiff excepted. The case appears in the opinion. The question of sufficiency is one of fact for the jury. Sessions v. Newport, 23 Yt. 9 ; Washburn v. Woodstock, 49 Yt. 503.

<p> Statute of Frauds. Sale. Delivery to carrier. Attachment. </p> <p>Goods of the value of more than §40 were purchased orally by S. without delivery of any portion or payment of any part of the purchase money. They were to be delivered in B. by the vendor, the freight to be paid by the consignee and deducted from the purchase price. The consignee had never applied to the carrier for the goods nor paid the freight. Held, that the title remained in the vendor and that the goods could not be attached upon the debt of the vendee.</p>

<p> Endorser. Interest. Demand and Notice. </p> <p>I. The endorser of a promissory note bearing annual interest is liable for the interest as it falls due before the maturity of the note.</p> <p>2. But he must be charged witn such liability by demand and notice.</p>

Beplevin for a quantity of bay, oats and barley. Heard upon tbe report of a referee at tbe December term, 1890, Caledonia county, Tyler, J., presiding. Judgment pro forma for tbe defendant. Tbe plaintiff excepts. Tbe opinion states tbe facts. Tbe plaintiff’s possession of the real estate carried with it tbe possession of tbe personal property. Flannagan v. Wood, 33 Yt. 343.

Bill for the construction of a will. Heard upon bill and answers at the Apri] term, 1891, Lamoille county.. Start, Chancellor, dismissed the bill pro forma with costs. The orator appeals.

Action of account. Heard on general demurrer to the plaintiff’s declaration at the December term, 1890, Bennington county, Taft, J., presiding. The demurrer was sustained and the plaintiff excepted. The action of account takes the place of a bill in chancery and will lie against an administrator. Newell, Admr. v. Humphrey, 37 Yt. 268; Richards v. Dagget et al., 4 Mass. 537; Rye-gate v. Wardsboro, 30 Yt. 746; Kingsr. White, 21 Atl. Rep. 135 ; Wyman v. Wilcox's Estate, 21 Atl.

General Assumpsit. Plea the general issue. Heard at the April term, 1891, Lamoille county, Start, L, presiding, upon the report of a referee. Judgment for the plaintiff. The defendant excepts. The plaintiff claimed to recover a balance of $15 for work done.

<p>Bill in chancery to compel the defendant to restore certain land to its former grade. Heard at the March term, 1891, Washington county, upon the pleadings and a master’s report. Munson, Chancellor, dismissed the bill proforma. The orator appeals.</p> <p>In August, 1887, one Brooks was the owner of a dwelling house on East State street in the village of Montpelier. The orator owned a tenement house next to it upon the same street, and one Guernsey owned and occupied a dwelling behind it and back from the street. The ell of the Brooks house was so situated along the street that it obstructed the view from the orator’s tenement, and completely cut off that from the Guernsey house. Access to the Guernsey house from the street was had through a passage way about ten feet wide between the ell and the orator’s tenement. This being the condition of things, on Aug. 4, 1887, Brooks conveyed to Guernsey the said ell part of his house, not the land, by warranty deed, which contained the following description and conditions:</p> <p>, “All the buildings standing on East State street in the village of Montpelier on land owned by said Ruth E. Brooks, •comencing at the soirth-west corner of the land now owned by ■C. II. Cross on said street, thence westerly on the north side of said street about 28 feet or so as to run through said house following the partition just east of the door fronting south, thence •through said house on a line with said partition to the north side of said house, thence easterly about 29 or 30 feet to the northwest corner of said Cross’ land, thence on said Cross’ line to the place of beginning; and said E. V. Guernsey is to remove said building and to finish up the end of the outside where the building is cut in two by boarding and clap-boarding the same in a proper manner, and lay a wall under the end of said building; she may use the stone under the said building for the same; fill the cellar and put on loam and manure to the satisfaction of said Brooks; the said Brooks is to clear the premises ready for _ removal in a reasonable time, and in consideration aforesaid they agree never to put or place any buildings, timber, trees, or other-nuisances on said land, and the same is always to remain open with nothing on the same to obstruct the view from the house of the said Guernsey or Charles EL. Cross, who is interested in said trade. And said Guernsey and Cross are to have the privilege of putting on said land a side-walk three feet wide across said land next to said Cross line and using and repairing the same at all times. Said Guernsey is to put into the end of the house where she finishes it off three of the windows, two in the first story and one in the second story.”</p> <p>On the same day Guernsey conveyed to the orator by deed the right to use the side-walk referred to ; on June 11, 1889, conveyed to him his house, and Sept. 25, 1889, the administrator of Brooks conveyed to the defendant the Brooks house.</p> <p>After the making of the deed of Aug. 4, the ell was taken away and the land graded to the satisfaction of Mrs. Brooks. It remained in this condition until shortly before the bringing of this suit wlien the defendant, who had .then become the owner of the Brooks premises, made an excavation about three feet deep extending near the street side-walk and also the side-walk from the street to the Guernsey house.</p> <p>In answer to the orator’s request for a finding tliat this was a nuisance, the master found :</p> <p>“The master inspected the premises and reports that it is desirable to the owners of the orator’s property, both that originally owned by him and that purchased of Miss Guernsey, that this land should be restored to its former grade; that the excavation is a detriment to the property of the orator, in that it is unpleasant to have this excavation near to both the orator’s houses and to the walks; that any person owning or residing in either of orator’s houses would very much prefer to have that ground as left by the orator, Miss Guernsey and Brooks, rather then as left by defendant after making the excavation. To have that land fall away to the deptli that it now does from the walks is objectionable, but does not destroy the walks or prevent their use, or does not, as claimed by the orator, render their use dangerous. To have water stand upon the ground there is unpleasant to the owners or occupants of those two houses. The digging of this excavation makes an unpleasant outlook from orator’s two tenements. In consequence of this excavation the orator was compelled to make some repairs upon this cross-walk to keep it in place, the land having caved away from it a little.”</p> <p>Deeds are to be construed according to the evident intent of the parties, and most strongly against the grantor. Flagg v. Eames, 40 Yt. 22; Collins v. Lavelle, 44 Yt. 230; Colby v. Colby, 28 Yt. 10; State v. Trash, 6 Yt. 355; Dev. Deeds, ss. 836, 837, 839, 842, 843, S51, 882; Hancock, v. Watson, 18 Gal. 137 Dev. Deeds, s. 848 "Wash. Ease., 46; Thurston v. Mink, 32 Md. 487.</p> <p>This excavation was a nuisance. "Wood Nuis. s. 1.</p> <p>2. Burr. Diet., 33.</p> <p>There was no nuisance. 6 Law.' Bights Bern. & Pr. ss 2959, 2961; Curtis v. Winslow, 38 Yt. 690.</p>

<p> Selling of land for school purposes. Constructive possession. Adverse occupation. Title in ejectment. </p> <p>1. Under the statutes in force in 1850 the selectmen of a town had no authority to set off private land for a school house lot and award the owner damages therefor, and a writing purporting to be such a set-off is not admissible as evidence upon the question to the title to such lot.</p> <p>2. If a grantor includes in a warranty deed premises to which he has no title, the grantee takes thereby only so much as is covered by the title of his grantor; nor will he acquire by the occupancy of that portion to which his grantor’s title extends any title to the balance, so long as that is in the adverse possession of another.</p> <p>3. Held, that upon the facts in this case the plaintiffs had no title upon which they could maintain ejectment against the defendant.</p>

<p> Committee to dvoide estate of deceased person. R. L. s. %®59. Direction of statute must be followed. </p> <p>1. A committee appointed by the Probate Court to make partition of the real estate of a deceased person, must act strictly within the statute ' or then proceedings will be void.</p> <p>2. Where the estate of the decedent lies in common with other real estate, it is the duty of the committee to first sever the estate which they are to divide from that with which it lies in common, B. L. s. 2259; and the fact that all the parties in interest request them to proceed otherwise, will not 'justify the committee in departing from the direction of the statute. If they do, then- report can have no effect as a decree of the Probate Court, however it may stand as an award of arbitrators.</p>

Assumpsit. Trial by jury at the December term, 1890, Lamoille county, Ross, J., presiding. Verdict for the plaintiff. After verdict the defendant moved to set aside the same. The court granted the motion as a matter of law and not discretion. The plaintiff excepts. The case appears in the opinion. This case must be judged by the ordinary customs of the time and place.

Action on the case. Heard at the February term, 1891, Orleans county, Tyler, J., presiding, upon general demurrer to the first count of the plaintiff’s declaration. The demurrer was sustained pro forma, and the plaintiff excepted.

Trespass for assault and battery. Heard on demurrer to the defendant’s second and third pleas at tbe December term, 1890, Ross, Olí. J., presiding. Demurrer sustained. Exceptions by tbe defendant, and cause passed to tbe Supreme Court before final judgment.

Assumpsit. Heard upon the report of a referee and exceptions thereto at the March term, 1891, Washington county, Munson, J., presiding. Exceptions overruled and judgment for the plaintiff in the sum found by the referee. The defendant excepts. The case appears in the opinion. The wife was a competent witness. R. L. s. 1005; No. 45 Acts 1886; Easterbroohs v. Prentiss, 34 Yt. 459;- Oreott v. Gooh, 37 Yt. 517; Lunay v. Vantyne, 40 Yt. 501. The wife was not competent.

Assumpsit upon a policy of life insurance. Plea, the general issue, with notice of special matter. Trial by jury at the September term, 1890, Washington county, Munson, L, presiding. The court directed a verdict for the plaintiff. Both parties except. The plaintiff herself testified to the death of the deceased, but knew nothing as to its cause or manner.

<p>This was an appeal from an order of tbe Probate Court for tbe District of Franklin, admitting to probate an instrument purporting to be tbe last will and testament of Catherine A. Foster. The contestants plead :■ First, that tbe paper was not tbe last will and testament of tbe said Catherine A. Foster. Second, that the testatrix did not have sufficient mental capacity to make a will. Third, that the instrument was procured by undue influence and fraud. Trial by jury at the April term,. 1888, Franklin county, Yeazey, L, presiding. Yerdict for the proponents. The contestants except.</p> <p>The letters referred to in the opinion were letters which passed between the legatees under the will, and the contestants at the time of the confinement of the testatrix in the insane asylum, and had reference to her confinement there and final cure and release.</p> <p>The stipulation referred to in point XY of the opinion was as follows :</p> <p>“ "Whereas at the trial of the above entitled cause before the Probate Court for the District of Franklin the testimony of witnesses produced before said Probate Court and taken to be used before said Probate Court, was written down in full by John H. Mimms for the use of said Probate Court and said copy is now in the hands of said Probate Court.</p> <p>Now it is agreed in the above entitled cause that the testimony so takqn and used before said Probate Court of witnesses that may be deceased, or unable to. attend court by reason of sickness or accident, or absent from this State, at the time said cause is tried in said Franklin County Court, may be read from said copy in the hands of the Probate Court, to the same extent that such witnesses might testify by laws and rules governing the admission and rejection of evidence, if present in court at the time of trial and offered as witnesses in said cause. Provided however that the testimony of the following witnesses ' used before said Probate Court is excepted from this agreement, viz : The three attesting witnesses to the will in question.-</p> <p>Persons absent from the State at the time of trial, referred to in the foregoing agreement shall include persons residing out of the State and who are not in the State at the time of the trial.</p> <p>It is further stipulated that the witness Mrs. French of Bennington at the option of the proponents shall be considered unable to attend by reason of sickness under this agreement.”</p> <p>The remaining facts sufficiently appear in the opinion.</p> <p>Mrs. Hayes, being a legatee under the will, was disqualified .as a witness. The will if sustained, transfers the property in question to her. It is, therefore, in essense a contract one party to which is dead; hence the living party cannot testify. E. L. ,ss. 1001, 1002,1003 ; Davis, Admr. v. Windsor Sawings Bank, 48 Yt. 532; Croaker, Exr. v. Chase, 57 Yt. 413; Pember v. Cong-■don, 55 Yt. 58; Barnes v. Dow, 59 Yt. 530 ; Farmers Ins. Co. v. Wells, 53 Yt. 14; 1 Greenl. Ev. s. 329 ; Lane, Exr. v. Lame, 95 N. Y. 494; Id. 516 ; Wade v. Pulaifer, 54 Yt. 45; Pooney •v. Minor, 56 Yt. 527; Moore v. Taylor, 44 N. IT. 370, 375 ; Chandler v. Davis, 47 N. H. 462, 464; Welch v. Adams, 1 N. E. Eep. 59 ; 56 Am. Eep. 521.</p> <p>The letters were inadmissible, being simply the declarations of third parties. Edson v. Pawlet, 22 Yt. 289; Baird and Wife v. Fletcher, 50 "Vt. 603 ; State v. Tatro, 50 Yt. 483 ; Boss v. White, 60 Yt. ; 1 Greenl. Ev. ss. 123, 124; Ellis v. Cleveland, 55 Yt. 358 ; Stevens v. Joyal, 48 Yt. 291.</p> <p>Goodridge, who was permitted to give an opinion as to the ■sanity of the testatrix, was not an expert witness, and had only .seen her briefly upon two occasions. He did not disclose a sufficient acquaintance with her to make his testimony competent. Hathaway v. Nat. Fife Ins. Co., 48 Yt. 335; Crane v. Crane, •33 Yt. 15 ; Clapp v. Fullerton, 34 N. Y. 190; Peed v. People, ■42 N. Y. 270.</p> <p>It was improper to allow Mrs. Hayes to explain what she meant by her letter to Mr. Eoster. This was the introduction of parol evidence to vary a written instrument. Cook v. Shearman, 103 Mass. 21; Selby v. Eriedlamder, 22 La. Ann. 381.'</p> <p>The question put Dr. Foote, in which he was asked to couple his own knowledge of the testatrix with the facts assumed-in the hypothetical question to Dr. Draper, was inadmissible. It is never permissible to couple with a hypothetical question facts .that the evidence in the case has no tendency to prove. Wetherby v. Wetherby, 38 Vt. 455 ; Fairchilds v. JBascomb, 35 Vt. 398; Thayer v. Davis, 38 Vt. 163 ; Lester v. Pittsford, 7 Vt. 158 ; Hathaway v. Nat. Life Lns. Co., 48 Vt. 335; Thornton v. Thornton, 39 Vt. 122 ; Louisville Rd. Co. v. Faldey, 1 "West R. 878 ; Best Ev. (Morgan Ed.) 874 and note ; Luning v. State, 1 Chand. (Wis.) 178; State v. Ciarle, 12 Ired. 151; 1 Greenl. Ev. 492.</p> <p>Nor is it permissible to include in hypothetical questions, the opinions or conclusions of other witnesses as was done in the question to .Dr. Hamilton. Wetherby v. Wetherby, 38 Vt. 455 ; Fairchilds v. Bascomb, 35 Vt. 399 ; Louisville Rd. Co. v. Faldey, 1 West. R. (Ind.) 878.</p> <p>The charge of the Court as to the weight which should be given the testimony of a subscribing witness was erroneous. The evidence of such a witness is entitled, to no greater consideration than that of any other. Thornton v. Thornton, 39 Vt. 157.</p> <p>The declarations of the testatrix made subsequent to the execution of the will, were admissible upon the questions of affection or prejudice. Lewis v. Mason, 109 Mass. 169; Shailer v. Bumsted, 99 Mass. 126-7; Johnson v. Brown, 51 Tex. 66; Canada’s Appeal, 47 Conn. 450; Heistu v. Lleistu, 116 Pa. 612; Abbott, Trial Ev. 122, s. 70.</p> <p>The charge of the court as to the manner in which and when influence might be proved was erroneous. The fact of undue influence may be inferred from the will itself, from the relations of the parties, and from proof of influence and control in other matters without any direct evidence as to the circumstances under which the particular will was made. Baylies v. Spaulding, 1 N. E. R. 914; .Saunder’s Appeal, 54 Conn. 108.</p> <p>The legatee, Mrs. Hayes, was a competent witness. In no sense can a will be construed as a contract, to wbieli the legatees upon the one part, and the testator upon the other are parties. Garvin, Admr. v. Williams, 50 Mo. 212; Gamache v. Gamfs, 52 Mo. 287; Stevens v. Joyal, 48 Yt. 295 ; Wyman et al. v. Syms, 10 Allen 153; Shailer v. Bumsted, 99 Mass. 112; Dikes v. Malahi, 6 Mo. 171; Entwhistle v. Feighner, 60 Mo. 214; Miltenberg v. Miltenberg, 78 Mo. 27; Lamb v. Lamb, 2 West Rep. 698; Flood v. Pragoff, 79 Ky. 608; Mower’s Appeal, 48 Mich. 442; Pash v. Peed, 46 Me. 230 ; Bird v. Jones, 37 Ark. 195; Bromemam v. Browning, 31 Ark. 364; Furies v. Orth, 88 N. Y. 477; Cole v. Denri, 3 Hun. 610.</p> <p>The ruling of the court that the witness Goodridge- had sufficient acquaintance with Mrs. Foster to express an opinion as to her sanity or insanity, cannot be revised in this court. Randolph v. Woodstock, 35 Yt. 291-94-96.</p> <p>The question put Alice Mack was a proper one. She was offered as an expert, and it was solely within the discretion of the County Court, to say whether she had qualified as such. If the question was leading, the court might allow it to be asked in its discretion. Cavendish v. Troy, 41 Yt. 99, 108; State v Phim., 48 Yt. 366-77.</p> <p>Mrs. Hayes was properly allowed to explain what she meant by her letter. This did not vary the terms of the written instrument, But simply showed what meaning was to be put upon those terms. Bracket et al. v. Wait & Moulton, A Yt. 411, 425; Poyes v. Canfield, 27 Yt. 79 ; 1 Greenl. Ev. ss. 288, 288a.</p> <p>It was permissible to show that the conduct and reputation of the husband of the testatrix as to his relations with other women, were such as the testatrix accused him of. This testimony showed that these accusations were not insane hallucinations, but based upon facts. Bank of Middlebury v. Rutland, 33 Yt. 414, 430 ; Richardson v. Hitchink, 28 Yt. 757 ; Harder. Brown, 18 Yt. 87; Lee v. KiTbu,rn, 3 Gray 594; Bartlett v. Decreet, 4 Gray 113 ; Carpenter v. Leonard, 3 Allen 32 ; Whitcher v. Shattuak, 3 Allen 319.</p> <p>There was no error in the hypothetical question, put by the proponents. The proponents, were not confined to the same hypothetical question which had been asked by the contestants. They might require from their expert witnesses an opinion upon the assumption that the facts testified to by one or more witnesses were true so long as those facts were not conflicting. Gates v. Fletcher, 67 Wis. 504-7 ; Wetherbee, Fksr. v. Wetherbee, 38 Yt. 454; Johnsons. Central Yt. Ed. Co., 56 Yt. 708; Meeker v. Meeker, 74 Iowa, 352-4-7.</p> <p>The charge upon the question of undue influence and the manner in which that could be proved, was correct. Trumbull et al. v. Gibbons, 2 Gab. (N. Y.) 117, 136; Taylor v. Kelley, 31 Ala. 59, 70 ; Hall v. Hall, 58 Ala. 131-4.</p> <p>The letters introduced in evidence, accompanied by proof that the testatrix knew their contents, were competent as bearing upon the question of undue influence, in that they showed the relations between the testatrix and the legatees and contestants, and what the feelings' of the testatrix probably would be. Greenl. Ev. s. 101; Wheeler v. Anderson, 3'Iíagg. O. Cl. 574, 608; Wright v. Tatham, 1 Ad. & El. 3; 7 Ad. & El. 313 ; s. C. 4 Bing., N. C. 489 ; Waterman v. Whitney, 11 N. Y. 164; Shouler Wills, s. 193 ; Sutton v. Sutton, 5 Iiarr. 459 ; Couch v. Couch, 7 Ala. 519.</p> <p>The subscribing witnesses to a will are competent to express an opinion as to the mental capacity of the testator without proof of any special acquaintance with him. The mere fact that they act in that capacity, qualifies them to express an opinion for whatever under the circumstances it may be worth. Williams v. Leej 47 Md. 159; Van Huss v. Eambult, 42 Tenn. 139; Needham v. Ide, 5 Peck, 510; Gibson v. Gibson, 9 Yerger, 329 ; Brooke v. Townsend, 7 Gill. 10 ; Red. Am. Cas. Wills, 89; Thornton v. Thornton, 39 Yt. 122.</p> <p>It was proper for Dr. Foote to testify as to his action in reference to the release of the testatrix from the insane asylum, and that he interested himself in that matter by the request of Mrs. Hayes, this fact being known to the testatrix. Bateman v. Bailey, 5 T. R. 512; Greenl. Ev. 108; Hill v. Morth, 31 Yt. 601.</p>

Case for the negligence of the defendant. Heard upon demurrér to plaintiff’s declaration at the December term, 1890, Caledonia county, Powers, J., presiding. Demurrer overruled. The defendant excepts. The plaintiff brought suit as the administrator of Ruth Richards, and his declaration was in two counts.

This was an action on the case for the negligence of the defendant whereby the death of the plaintiff’s intestate was occasioned. Heard at the December term, 1890, Caledonia county, Tyler, J., presiding, upon the defendant’s demurrer to the plaintiff’s declaration. The demurrer was overruled and the defendant excepted.

Trover for the conversion of a horse. Plea, the general issue. Trial by jury at the June term, 1890, Orange county, Tyler, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepts. The opinion states the case. The admission of the entry upon the plaintiff’s book as independent evidence was error. Godding, Adrar, v. Oroutt, 44 Yt. 54. That the defendant was intoxicated had no bearing upon the case and was improperly admitted. 1 Add. Tor.

Trespass for the taking and carrying away of certain lumber. Heard upon the repout of a referee at the June term, 1889, Bennington county, Tyler, J., presiding. Judgment on the report for the plaintiff. The defendant excepts. The opinion states the case. The title to the laud was in the defendants and that carried with it the title to the lumber. Diclcerman v. Bay, 55 Yt. 68 ; Town of Lemingtonv. Stevens, 48 Yt. 41; Bish.

<p>This was an action in trespass for the taking of a part of the same lumber involved in'the preceding case of Smith Billiard v. Philip Bean and, Lueia Deem, and the facts in the two cases are identical. Heard below upon a referee’s report at the June term, 1889, Bennington county, Tyler, J., presiding.</p> <p>Judgment for the plaintiff. Exceptions by the defendants.</p>

<p>Indictment for selling, furnishing and giving away intoxicating liquor. Plea, not guilty. Trial »by jury at the September term, Washington county, 1890, Munson, J., presiding. Verdict, guilty of one offense. The respondent excepts. The facts appear in the opinion.</p> <p>The legislature is presumed to use words in their legal sense as fixed by previous decisions. Endl. Interp. St. ss. 3, 79, 127, 330, 357 and 367.</p> <p>The word dwelling, so considered, includes outbuildings. Bouv. Law Diet., title Dwelling House; 2 Bish. Stat. Or., ss. 278, 286 and 289 ; Bish. Or. Proc. (3d Ed) s. 135.</p>

<p> Husband and, wife. Earning s'by wife. Allowance in ncome of ■ husband. Egudty. </p> <p>1. Whatever a wife earns by her own labor upon the understanding between herself and husband that it shall be hers will enure to her benefit.</p> <p>2. The fact that such a claim is presented against the estate of a deceased person in the name of the husband does not make it his; it being-understood that the wife shall have the benefit of the allowance.</p> <p>S. And the wife may invoke the aid of a court of equity to restrain the administrator of her husband’s estate from conveying away such allowance.</p> <p>4. The mere fact that the Probate Court, in making the wife her allowance, treated the claim as a part of the husband’s estate do'es not alter the case.</p>

Petition to the County Court praying that the petitionee be adjudged in contempt for neglect to pay certain alimony decreed by said court. The petitionee pleaded in bar a discharge from the court of insolvency for the district of Rutland. To this, plea the petitioner demurred. Heard upon demurrer at the September term, 1891, Thompson, J., presiding. Judgment that the plea was sufficient. The petitioner excepts.

<p>Petition of foreclosure. Heard upon the report of a special master at the September term, 1891. Thompson, Chancellor, pro forma, dismissed the bill. The orator appeals.</p> <p>Both the mortgage of the orator and that of the defendants were executed Sept. 29, 18UL That of the orator was to secure a note for $100 given in settlement of a suit then pending, in which these same premises had been attached, and was executed before that of the defendants, which was to secure the future life support of the mortgagor and his wife. The defendants’ mortgage was filed for record at one o’clock on the day following its execution and that of the orator at 2.30 o’clock of the same day. The defendants had no knowledge of the orator’s mortgage when they filed theirs for record, and the orator had no knowledge of the mortgage of the defendants until he lodged his in the town clerk’s office.</p> <p>The petition in this suit was returnable to the March term, 1891. The defendants had before then fully performed the conditions of their deed by supporting during their lives the. mortgagor and his wife. The master found that the value of the support so furnished was more than that of the premises.</p> <p>The mortgage to the defendants, being for future support, was void as to that of the orator which was for a present indebtedness. Jones v. Spear, 21 Yt. 426 ; Oram v. Stichels, 15 Yt. 252; Ohu/rch v. Ohapi/n, 35 Yt. 223 ; Prout v. Vaughn, 52 Yt. 451.</p> <p>The defendants’ mortgage acquired priority by being first recorded. Johnson v. Burden, 40 Yt. 567; Sawyer v. Adams, 8 Yt. 175-6.</p> <p>The orator 'having stood by and suffered the defendants to expend money on the strength of their mortgage is now estopped to deny its validity. Sto. Eq. Jur., s. 384 ; Big. Est., (2ded.) 453 ; 'Note to Niven v. Belknap, 2 Johns. 573 ; Mo Lane, Admr. v. Johnson, 43 Yt. 54; Hendricks, Admr. v. Dillon et al., 62 Yt. 430.</p>

<p> Chattel mortgage. Oath. Demand by attaching officer fon statement of amount due. Warner of such statement by-attorney. Sale of enti/re property when nothing but interest dtte. </p> <p>1. A., being surety for B. upon a promissory note, promised to pay the note-according to its tenor, and in consideration thereof B. promised to-pay A. the amount of the note and secure the performance thereof by chattel mortgage. Held, that the oath in the mortgage properly-described the debt from B. to A. as an absolute one.</p> <p>2. Under R. L. 1181, which provides that an officer, having under attachment property encumbered by chattel mortgage, may demand of the-mortgagee a written statement under oath of the amount due, which, the mortgagee shall render within fifteen days; a demand for such a, statement forthwith is not within the statute, and the mortgage lien will not be discharged by failure to render the statement within fifteen days from such a demand.</p> <p>3. The attorney for the attaching creditor may waive the rendering of such an account or extend the time within which it shall be rendered,, after a proper demand made.</p> <p>4. Held, that the evidence in this case tended to show such a waiver or-extension.</p> <p>5. A sale upon chattel mortgage of the entire property, although but one-year's interest upon the debt was then due, would not discharge the-proceeds from the mortgage lien, even if such sale were authorized; certainly not if the mortgagor were present, participated in and consented to the sale.</p>

<p>Appeal from a decree of the Probate Court for tbe district of Rutland admitting to probate the will of Emma C. Buckman. Trial by jui’y at the March term, 1891, Start, J., presiding. Verdict and judgment for the appellant. Exceptions by the proponent.</p> <p>The appellant was the husband of the testatrix.. Upon trial he offered himself as a witness, and was received against the exception of the appellee, to all matters not confidential and not affecting the character of his wife. Among other things he testified to a conversation in the presence of third persons in wdiich she admitted and agreed that certain real estate of which the title stood in her was their joint property. This real estate was devised to persons other than her husband by the will in question.</p> <p>Iiowe c& Cooledge, and Geo. E. Lawrence, for the proponent, cited, Merrill, Ad/mr. v. Pinney, 43 Yt. 605 ; PL'all v. Hamblett, 51 Yt. 589 ; Maries v. Spencer, '81 Ya. 751.</p> <p>The husband might testify after the death of his wife to matters not confidential. Edgell v. Bennett, 7 Yt. 534; Smith v. Potter,‘El It 304; Carpenters. Moore, 43 Yt. 392; Stow v. Bishop, 58 Yt. 498.</p> <p>, The matters testified to by him were not of this character. Parlehurst v. Berdell, 110 N. Y. 386.</p> <p>Evidence tending to show that the testatrix had willed to others property belonging to her husband was competent upon the question of testamentary capacity. Converse v. Converse, 21 Yt. 168; Thornton v. Thornton, 39 Yt. 122; Irish v. Newell, 14 Am. Rep. 79 ; Shailer v. Bumsted, 99 Mass. 112; Woodward v. Sullivan, 152 Mass. 470 ; Reynold v. Adams, 33 Am. Rep. 15; Shaver v. McCarthy, 5 At. Rep. 614; McCoon v. Allen, 17 At. Rep. 820; Meeleer v. Meeleer, 7 Am. St. Rep. 489.</p>

This was ail appeal from an order of the Probate Court for the district of Fair Haven, accepting the report of commissioners by which the plaintiff’s claim was disallowed. Trial by jury at the September term, 1891, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The plaintiff sought to recover for services and expenditures in caring for the intestate.

Action of covenant. Pleas, the general issue and in bar. Trial by jury at tbe September term, 1891, Start J., presiding. At the close of tbe plaintiff’s testimony tbe court directed a verdict for tbe defendant. Tbe plaintiff excepts. The opinion states tbe facts. When tbe decree of foreclosure became absolute, tbe entire estate vested in tbe defendant and tbe covenants in tbe first deed were extinguished.

Bill to establish a trust. Heard upon the pleadings and the report of a special master, at the September term, 1891. Tliompson, chancellor, dismissed the bill pro forma. The orator appeals. • The orator brought suit as the administrator of Catherine J. Williams, his wife.

<p>Bill in chancery to foreclose a lien in the nature of a mortgage. Heard upon bill, answers, and a master’s report at the September term, 1891. Thompson, Chancellor, dismissed the billpro forma. The oratrix appeals.</p> <p>From the master’s report the following facts appear:</p> <p>In the year 1884 the premises in question were owned by one Adams, who, on the 1st day of July in that year conveyed the same to the Yalido Marble Company by deed conditioned for the payment of certain promissory notes. On the 18th day of December, 1885, Adams began an action at law against the Yalido Company and attached the premises in question; said suit was made returnable to the Rutland County Court, and was there prosecuted from term to term until at the January term of the Supreme Court, 1889, he obtained judgment, and on the 21st day of January, 1889, execution issued in his favor for the sum of $3,839.84 damages and costs.</p> <p>Soon after beginning his suit at law Adams also instituted proceedings to foreclose his conditional deed, the terms of which had not been complied with by the Yalido Company, and on the 10th day of April, 1888, he obtained a decree against the premises for $8,875.68, on or before one year from date with interest from the date of the decree.</p> <p>November 10, 1887, the Yalido Marble Co., by deed of that date properly executed, mortgaged to the defendants, Harmon and Cheney, as trustees, the premises in question to secure the payment of seventy-five bonds of $1,000 each, which were to be issued under the provisions of said mortgage. This deed was duly recorded and the bonds described therein were issued from' time to time, and were outstanding and unpaid; of these the defendants, Guy IT. Reynolds and John B. Reynolds, were the owners of about one-half, the balance being held by parties whose names did not appear.</p> <p>William H. Johnson, the husband of the oratrix, was in the spring of 1889, and had been .for some time the treasurer and general manager of the Yalido Marble Co. As such he made efforts from time to time to raise the funds necessary to pay off the execution and decree of Adams, as aforesaid, but without success. As the time when these liens would become absolute drew near, the said William IT. Johnson, being unable to raise the money with which to satisfy them, and being apprehensive that the property would go in satisfaction of these liens, applied to his wife, the oratrix, representing to her that the two liens amounted to about $13,000; that the security was ample, and requested her to advance the sum of $13,000 for the payment of said liens, she to take the security then held by Adams, which was a first lien upon the property. The oratrix replied that she had not then, February, 1889, $13,000 at her command, but that if some arrangement could be made by which á portion of this sum could be paid then, and the balance later, she could and would comply with the request of her husband. Thereupon her husband sought an interview with the solicitor of Adams, for the-purpose of ascertaining whether some arrangement might not be made for a delay as to the payment of a portion of the indebtedness, and was informed by him that if the amount of the execution was paid then, some further time might be given upon the decree, but no definite arrangement was then concluded. In accordance with this suggestion, the oratrix early in the month of February delivered to her husband $3,000, with which to help pay the execution, upon the understanding that she was to raise the remaining $10,000 with which to pay the balance due upon the execution and decree, and that she was to take Adams’ security as to the whole $13,000. The $3,000 so furnished by the oratrix was used by her husband in paying the Adams execution, the balance due upon it being paid by him out of other funds from some other source. This payment was made on the 18th day of February, 1889.</p> <p>Subsequent to the time when the oratrix advanced the $3,000 to apply upon the execution, an arrangement was made between .the oratrix and Adams, the oratrix acting through one Maynard, as her agent, to the effect that the decree should be allowed to become absolute, that within a certain time Adams should be paid the amount due on his decree with interest, and should thereupon quit-claim the premises to said Maynard, who in his turn was to convey them to the oratrix. In pursuance of this understanding the decree was allowed to become absolute, Adams was paid the amount his due on the same, and did on the 10th day of June, 1889, quit-claim the property to Maynard, who, on the same day, quit-claimed it to the oratrix. The oratrix at this time furnished her husband the sum of $10,000, being the balance necessary to make up the entire sum of $13,000, and out of the $10,000 so furnished Adams was paid whatever sum was paid him on the decree. Just what that sum was did not appear. The expressed consideration in the deed was $9,499.18.</p> <p>On June 12th the oratrix executed and delivered to her husband, as manager of the Yalido Marble Co., a writen agreement to re-convey to that company the property so deeded to her upon payment of the $13,000 advanced by her, with interest. And subsequently, on the 12th day of November following, the oratrix and her husband joined in a conditional deed to the Yalido Company of the same tenor. In both the written agreement and the deed it was provided that the property should be insured for the benefit of the oratrix, and that in the event of loss, if the parties so agreed, the insurance money might be used in rebuilding the premises.</p> <p>Pursuant to this agreement the Yalido Marble Company did effect insurance for the benefit of the oratrix, and certain policies which had been previously taken out for the benefit of Adams, were by him transferred and assigned to the oratrix.</p> <p>On the 21st day of July, 1S89, one of the mills of the company was destroyed by fire. The oratrix was willing to allow a considerable portion of the money advanced by her to remain, provided the property destroyed could be replaced and the security kept good, and an agreement was made between the Yalido Marble Company and the oratrix that she should be repaid the $3,000 which she had first advanced to apply on the execution, and the interest on the whole up to October 1st, 1889, and that the remaining $10,000 might be used by the company for the purpose of rebuilding and continuing its business.</p> <p>Agreeably to this arrangement the oratrix was paid the sum of $3,000 and the interest on the whole to October 1st, 1889, and the balance of the insurance money was turned over to the Yalido Company.</p> <p>The mortgage of the defendants provided that the Yalido Company should keep the premises fully insured for the benefit of the mortgagees. The oratrix did not know of the existence of this mortgage, but did know that there were bonds outstanding against the company. After the fire and before the arrangement between herself . and the Yalido Company as to the insurance money was perfected, the oratrix several times saw and conversed with the defendants, ITarmon and Cheney, and also with the defendants, John B. Reynolds and Guy H. Reynolds, and no one of these persons advised her of the existence of the mortgage to the defendants nor that it was her duty to apply the insurance money in liquidation of her indebtedness.</p> <p>The money paid in liquidation of the loss was all by checks to the order of the oratrix and some other person, sometimes Adams and sometimes the Yalido Company, and the entire amount was more than the amount of the oratrix’s debt. The oratrix endorsed these checks and delivered them to her husband as the manager of the Yalido Company and for it, in pursuance of their arrangement. The Yalido Company at that time was hard pressed financially, and the husband of the oratrix apprehended that if it were known that any considerable sum of money was deposited to its credit it might be embarrassed by the beginning of trustee suits. He accordingly deposited in the Allen National Rank to the credit of his wife an amount of this insurance money equal to or exceeding the amount of the indebtedness of the Yalido Company to her, and these smns were after-wards drawn out by him upon checks signed in blank by the oratrix. The oratrix did not-know that the money was so deposited in her name nor did she know for what purpose the checks signed in blank by her and delivered to her husband were to be used.</p> <p>Her husband testified, against the objection and exception of the defendants, without producing the checks, that the money so drawn out went to the use of the Yalido Marble Company. He also testified against the objection and exception of the defendants, that he received these insurance checks from his wife as the manager of and in behalf of the Yalido Marble Company, in pursuance of the arrangement which he, as the representative of such company, had previously made with her in respect of the disposition of the insurance money.</p> <p>Soon after the fire, John B. Reynolds commenced suits against the oratrix and the Yalido Marble Company, in which he claimed to recover a large amount, and in which the insuranee companies were summoned as trustees. On the 23d day of September, 1889, there was a meeting at Albany, N. Y., at which the defendants, Guy IT. Reynolds and John B. Reynolds, the husband of the oratrix, and several others, stock-holders and directors of the Yalido Company, were present. An agreement was there entered into respecting the suits above mentioned and certain other matters, by which it was provided that the oratrix was to convey the property to the company and receive from the insurance the amount due her. The master found that William TI. Johnson had no authority to represent the oratrix at this meeting, that she had no knowledge that any such meeting had been held until sometime afterwards, and never knew what the terms of the agreement were.</p> <p>The defendants claimed that William TI. Johnson was the general agent for the oratrix. In respect to that claim the master’s report contained the following statement:</p> <p>“ At the special request of the defendants, made since the draft of this report was submitted to them, the master reports that the oratrix,. in one portion of her testimony, made use of the following language:</p> <p>“Mr. Johnson has acted as my general agent ever since we were manned and has authority to act as such. Since my connection with the Yalido Company he has done my business rather than myself.”</p> <p>Q. By Mr. Moloney. — “ You mean to state that he was your general agent in alLmatters? ”</p> <p>Ans. “ Yes.”</p> <p>But the Master further states that her evidence, when considered altogether, does not indicate, nor does the other evidence in the case show, that Mr. Johnson has ever been her general agent in the sense that he could bind her without her consent. They have lived a good portion of their married life in the city of New York, where the oratrix is the owner of more or less real estate. The evidence shows that Mr. Johnson held ageneral power of attorney from his wife to collect rents upon her real estate in that city, and to deposit moneys so collected to her credit in some bank in which she kept an account; and that she sometimes signed checks and delivered them to him to use for purposes understood between them; she also, on many occasions, gave him special authority to act for her in matters agreed upon between them.</p> <p>The agreements connected with the transactions involved in this proceeding were made by her personally with her husband, as the representative of the Valido Company, except the one between her and Adams, which was made through the intervention of her husband and Maynard; and he had no authority to do anything for her only as the different propositions were separately talked over between them and her consent and direction were obtained. In the matter of the insurance money, while it appeal’s that her husband acted for her in the settlement with the insurance companies, it does not appear that he had authority, or that he tried to act in reference to the disposition of the money after it was received, nor that he had any authority to act for her in the settlement of any differences between herself and said Reynolds.”</p> <p>William II. Johnson was offered by the oratrix as a witness in her behalf. The defendants objected “ to any evidence relating to transactions with his wife without it first appears that he had authority as general manager to enter into the same ; ” later “ upon the ground that it did appear that the witness was the general agent of the oratrix, and that his knowledge was her knowledge.”</p> <p>The oratrix is entitled to a lien agaist the premises for the entire amount advanced by her. The Adams liens were both superior to the liens of the defendants and amounted to more than $13,000. The arrangement with the oratrix was that she should advance $13,000 and take the security of Adams.When she advanced the last $10,000, the title had become absolute in Adams and the defendants had no claim against the premises whatever. The defendants should not be allowed to assert such claim, except in virtue of and in accordance with the arrangement by which the oratrix advanced her money and took her security. The only right the defendants have is in virtue of the written agreement of the oratrix, and they can only insist upon that agreement as an entirety, if at all. In equity a lien may be treated as in force in reference to a subsequent lien, although legally the prior lien has been discharged. Seymour v. Harrow, 31 Yt. 122; Thorpe v. Hwrbon, 45 Iowa, 192; Eggeman v. Eggeman, 37 Mich. 436.</p> <p>The oratrix had no knowledge in fact of the trust mortgage held by the defendants, and there is nothing in the case which can charge her with such knowledge. Jones Mort., s. 562; Pom. Eq. Jur., ss. 1188, 1199; McDaniels v. Oolvin, 16 Yt. 300; Seymour v. Harrow, 31 Yt. 122.</p> <p>The deposit of the insurance money in the Allen bank to the credit of the oratrix did not effect a payment of her indebtedness. There was no appropriation of the fund to that purpose. Jones Mort., ss. 904, 905.</p> <p>The defendants made no objection to the testimony of Mr. Johnson, for that the husband could not testify in his wife’s behalf.</p> <p>The defendants have an equitable title to the insurance money by reason of the stipulation in their mortgage, that insurance should be effected in their behalf, although not in fact named in the policies. Thomas v. Vonkapf, 6 Gill & J. 372; Prov. Go. Bank v. Benson, 24 Pick. 204; Nichols v. Baxter, 5 R. I. 491; Plympton v. Farmers, &c. Co., 43 Yt. 497; Miller v. Aldrich, 31 Mich. 408; Doughty v. Van Horn, 29 N. J. Eq. 90; Wheeler v. Ins. Go., 101 U. S. 439; Ames v. Pichardson, 29 Minn. 330 ; Nordyke M. Go. v.. Gerry, 112 Ind. 535; Wilson v. Hakes, 36 111. App. 539.</p> <p>It was tlie duty of tlie oratrix to have applied tlie insurance money in payment of her indebtedness. Not having done so she cannot now set up that indebtedness as a lien prior to the mortgage of the defendants. Kernochan v. Ins. Go., 17 N. Y. 428; Gone v: Ins. Go. 60 N. Y. 619, (624); Pendleton v. Elliot, 67 Mich. 496; Blaisdell v. Stearns, 16 Yt. 179; Staffordv. Ballou, 17 Yt. 329; Lyman v. Lyman, 32 Yt. 79; Root v. Collins, 34 Yt. 173.</p> <p>The oratrix can at all events assert no lien in a greater amount than the sum due on the Adams decree. The transaction was in effect an assignment of that decree to her. Dana -v. Binney, 7 Yt. 493 ; McDonald v. McDonald, 16 Yt. 630 ; Du,nshee v. Parmelee, 19 Yt. 172; Seymour v. Darrow, 31 Yt. 122; Chandler v. Dyer, 3i Yt. 760.</p> <p>The oratrix must stand affected with the knowledge of her husband, who acted in those matters as her agent. Ilart v. Far. <& Mech. Bank, 33 Yt. 252; Abell v. Howe, 43 Yt. 403, (409).</p> <p>It was error to permit the husband of the oratrix to state in what capacity he received the checks for the insurance money. Farmers ds Mech. Bank v. Trans. Go., 23 Yt. 206 ; Bailor.Farley, 81 Ala. 288; Fertilizer Go. v. Reynolds, 79 Ala. 497 ; Hamburg v. Wood, 66 Tex. 168; Pope v. McGill, 12 N. Y. s. 306; Fosdick v. Vanersdale, 41 N. W. 931; Doty v. Stanton, 2 N. Y. s. 417; Sowrie v. Salz, 17 Pa. 232.</p>

<p> Perjury. Form of indictment. No. £9, Acts 1890. </p> <p>The form prescribed in s. 3, No. 29, Acts of 1890, is properly used in am indictment charging the commission of perjury in disclosure proceedings before a justice of the peace after a conviction for intoxication.</p>

Exceptions from the City Oourt of Burlington. The action was special assumpsit for the amount of a promissory note. Plea, the statute of limitations. Replication that the note was a witnessed note. Trial by court. The note was payable to Edward P. Howe and was attested by Elizabeth A. Howe as a witness. It was conceded that Elizabeth A. Howe was the wife of Edward P. Howe.

<p> Jjurisdiction. Interest of justice. Judgment upon plea i/n abatement. </p> <p>1. The plaintiff, defendant and three other towns unite in the common maintenance of a poor farm upon which the paupers of the several towns are supported. The terms of the association provide that in case of a deficit, it shall be borne by the several towns in proportion to the number of weeks during which their paupers have been- supported. Held, that a third town had no interest in the event of a suit brought by the plaintiff to recover of the defendant the amount of an assessment paid to the association by the plaintiff for the support, upon this farm, of a pauper legally chargeable to the defendant.</p> <p>'2. Where an issue of fact raised by a plea in abatement is found in favor of the plaintiff, judgment in chief should follow; and the Supreme Court, upon sustaining the exceptions of the plaintiff, will give such judgment as the County Court should have given and remand the cause for the assessment of damages,</p>

<p>Trover for tbe conversion of a borse. Plea, tbe general issue with notice of special matter. Trial by court at tbe September term, 1891, Ross, Oh. J., presiding. Judgment for the-plaintiff. Tbe defendants except.</p> <p>Tbe facts appear in tbe opinion.</p> <p>Registration of the defendants’ mortgage was notice to tbe plaintiff when bis lien was created. Pass%t,mpsic S. Bank v. Natil Bank, 53 Yt. 82 ; Wade, Notice, ss. 41, 77, 37 ; Story Eq.' Jur. s. 399 ; McOgee v. Edmcwds, 87 Tenn. 506.</p> <p>Tbe taking of a new note and mortgage to secure tbe same indebtedness did not extinguish tbe first mortgage lien. 15 Am. and Eng. Enc. of Law, 870, 871; Bunker v. Barron, 3-N. Eng. Rep. 597Orvis v. Newell, 17 Con. 96 ; Dqma and Haydan v. Binney and Morrison, 7 Yt. 493 ; Seymour v. Barrow, 31 Yt. 129; Thomas v. Gregory, 20 Wend. 17; Ba/ois v. Maynard, 9 Mass. 242; Butts v. Bean, Admr., 2 Met. 76 ; .ffiZZ v. Beebe, 13 N. Y. 656 ; Tucker v. Brake, 11 Allen, 145 ; Grimes v. Kim-ball, 3 Allen, 518, 522.</p> <p>At best the plaintiff has but a right of redemption against the defendants and' this equitable title he cannot enforce by a suit at law. Jones Chat. Mort. s. 435 ; Landon v. Emons, 97 Mass. 37 ; Holmes v. Bell, 3 Cush. 322; Burdick v. Me Varmer, 2 Denio’170 ; Goodrich v. Willard, 2 Gray 203.</p> <p>The defendants still have the right to sell the colt under the first mortgage. Oalkings v. Glement, 54 Yt. 635; Benio v. Nash, 60 Yt. 334; 3 Am. and Eng. Enc. Law, 201; Bradley v. Redmond, 42 Iowa 454.</p> <p>That the first mortgage was extinguished must have been assumed by the County Court in rendering judgment for the plaintiff, and this court will presume the County Court to have found a fact, which is inferable from the facts found, and without which its judgment could not have been given. Burton v. Est. of Barlow, 55 Yt. 434; Patteey.Pelton, 48 Yt. 182, Seward v. Heflin,20 Yt. 144; Brattléboro v. Reed, 40 Yt. 76; Harriman y.School Bistrict, 35 Yt. 311; Smithy. Bay, 23 Yt. 656; Bradstreet v. Bank of Royalton, 42 Yt. 128 ; National Bank v. Strait, 58 Yt. 448 ; Kimball v. Estate of Baxter, 27 Yt. 628.</p> <p>The facts found by the County Court raise a presumption that the first mortgage lien has been discharged by the giving of the new note and mortgage. Baña v. Bailey, 7 Yt. 493 ; Bunshee v. Parmalee, 16 Yt. 630 ; Trust Go. v. Farrar, 53 Yt. 542.</p>

<p>Information for being found intoxicated. Plea, not guilty. Trial by jury at the April term, 1891, Thompson, J., presiding. Yerdict, guilty. Exceptions by the respondent.</p> <p>The case appears in the opinion.</p> <p>At common law the information was insufficient. McLane v. State, 4 Ga. 335 ; Ilatwood v. State, 18 Ind. 492.</p> <p>The court could not allow the amendment since it was one of substance. B. L. s. 3857; Bl. Com. Bk. 4, 306; Arch. ^Cr. PI., 11, 14; 1 Bish. Or. Law, s. 389.</p> <p>A motion to dismiss is addressed to the discretion of the. County Court, and the action of that court is not revisable here. Commonwealth v. Eastman, 1 Cush. 189; Commonwealth v. Ryan, 9 Gray 137; 1 Whart. Or. Law, s. 519.</p> <p>Informations are amendable. State v. Murphy, 55 Vt. 547.</p> <p>The charge as to the intention of the respondent in becoming intoxicated was correct. State v. Hopkins, 56 Yt. 250, 260.</p>

Petition of habeas corpus, returnable before Taft, J., who found the facts as stated in the opinion and continued the case as to the legal questions involved to the January term, 1892, of the Chittenden county Supreme Court. The relator could not be compelled to disclose until it had been legally adjudged that he was found intoxicated, and of this fact there was no legal evidence before the court. In re Hardigan, 57 Yt. 100.

<p>Burden of proof. Instruction of court. Wot bound to instruct upon immaterial issue. As to contradictory statements. Opvnion as to weight of evidence. Waiver of exception. Motion in arrest.</p> <p>1. The action being for the amount of an over-draft paid by the plaintiffs upon the draft of the defendant for certain butter, which the plaintiffs alleged had not been delivered to them, an instruction from the corut that the plaintiffs’ right of action depended upon whether the butter was delivered by the defendant, and that in making out their case the burden was upon the plaintiffs, sufficiently informs the .jury that the plaintiffs must assume the burden of proving that the butter was not delivered.</p> <p>3. It was not error for the court to refuse an instruction that there was no' evidence of fraud upon the part of the defendant, inasmuch as the question of fraud was in no way an issue in the case.</p> <p>3. Nor to refuse the instruction that “testimony tending to. show; that a witness had made statements out of court, that contradict his testimony in court, is to be weighed with caution.”</p> <p>4. The court is not bound to express an opinion as to the weight of evidence, nor is that the usual or better practice,' although it may be-done in such a way as not to be reversible error.</p> <p>5. By introducing evidence upon his part, the defendant waives an exception to the. action of the court in overruling his motion for a verdict made at the close of the plaintiffs’ case.</p> <p>6. A motion in arrest of judgment must be heard and determined upon the record alone ; and the error so appearing must be such as would render the judgment erroneous notwithstanding the verdict.</p>

<p> Consideration. Forbearance. Waiver of legal right. Certificate of deposit. One signing xipon back prima facie maker. Evidence. Charge of Court. Immaterial issue. </p> <p>1. The plaintiff held a certificate of deposit against a national bank of which the defendant was a director, and applied for payment upon the same. The bank then had funds sufficient for the payment of the certificate and was engaged in its regular business, but was in fact insolvent. The officers of the bank requested the plaintiff not to, draw out his money upon the certificate but to leave it in the bank.. To this the plaintiff consented upon condition, that the defendant would sign the certificate. Thereupon the old certificate was surrendered, the one in suit issued, signed by the defendant upon the back, and the plaintiff forebore to call for the money until the bank passed into the hands of a receiver. Held, that upon the above facts, there was a good consideration for the defendant’s promise.</p> <p>2. It is immaterial that no definite time of forbearance was fixed, provided the plaintiff did in fact forbear a reasonable time.</p> <p>3. Nor is the plaintiff’s right of recovery affected by the fact that under the laws of the United States applicable to banks a payment to him at the time he called for his money would have been void as a preference, and might have been recovered by the assignee.</p> <p>4. The waiver of a legal right upon request is a good consideration. though the promissee loses nothing thereby.</p> <p>5. No other demand or notice was required to charge the defendant as. a, maker than a return of the certificate properly endorsed to the' receiver.</p> <p>6. The plaintiff was properly allowed to testify that he would not have, left pis money in the bank had he not understood that the defendant-, was obligated to pay it.</p> <p>7. It is not error to refuse a particular instruction, if the legal principle embodied in it, as applicable to the case on trial, is correctly stated in some other instruction.</p> <p>8. By signing liis name upon the back of the certificate the defendant became prima facie liable as a maker nor did the addition of the word “ surety” alter that xnesumption.</p> <p>9. The real obligation intended to be assumed by the defendant might be shown provided it was known to the plaintiff when he accepted the certificate.</p> <p>10. Whether the defendant himself received any consideration is immaterial, and the submission of that issue to the jury was not error.</p>

<p>Insane asylum. Discharge by supervisors. Bevocation by one.</p> <p>A person who has been discharged from the insane asylum by the supervisors of the insane, cannot be recommitted under a revocation of that discharge by a single supervisor, although it was a condition of his original release that he might be.</p>

Assumpsit. Trial by jury at the September term, 1890, Ross, J., presiding. Yerdict and judgment for the defendant. Exceptions by the plaintiff. The defendant moved in the Supreme Court to dismiss the exceptions for that no question of law was presented by them. At the same term of the County Court at which the trial was had, the plaintiff moved that court for a new trial in said cause and supported his petition by certain affidavits.

<p>Trespass for the cutting of certain trees. Heard upon the report of a referee at the September term, 1891, Tyler, J., presiding. Judgment pro forana, for the plaintiffs. The defendant excepts.</p> <p>In 1865 the female plaintiff conveyed the premises owned by the defendant to one Hallihan describing them as bounded on theeastbythe “ Lewis H. Beals farm,” and Hallihan conveyed to the defendant by the same description. It was claimed that tire trespasses were committed on the said Lewis H. Beals farm, of which the female plaintiff had become the owner, and the question was as to the location of the division line.</p> <p>In 1857 certain proceedings were had in the Probate Court for the partition of this Lewis II. Beals farm, and the present west line was then surveyed out by monuments, courses and ■distances. A portion of the farm bounded on the west by this line was set by such courses and distances to Gridley Beals. The next year Gridley Beals conveyed the premises so set to him to ■one Lewis E. Beals, who thereby became the owner of the whole ■of the Lewis II. Beals farm. In 1864 he conveyed to one Page, who in 1888 conveyed to the female plaintiff.</p> <p>Beginning at the point of beginning and running the controverted line by the courses and distances as specified in the •set-out to Gridley Beals, the alleged trespass would be upon the defendant’s land, but the courses and distances so applied would ■not return exactly to the point of beginning.</p> <p>For the purpose of showing the location of the disputed line iis claimed by them, the plaintiffs introduced parol testimony against the defendant’s exception, tending to show that in 1847, the owner of the defendant’s farm and the owner of the Lewis H. Beals farm agreed upon the location of this line between .the two and employed the same surveyor to run it out who after-wards made the survey used in the Probate Court; that the termini of this line were then established, and the line indicated by marked trees; that in making the survey for the Probate Court ten years afterwards he intended to follow the same line; that the termini were still standing and that he re-marked the line trees. The evidence of the plaintiffs further tended to show that there was a high perpendicular ledge which formed a natural boundary between the two farms, which was a part of the line agreed upon and run out in 1847, and which was referred to in the description used in the Probate Court.</p> <p>The referee found the line as claimed by the plaintiffs, provided the parol evidence above referred to was admissible.</p> <p>The record in the Probate Court established the line in dispute. The female plaintiff subsequently to such record conveyed the defendant’s farm to the defendant’s grantor and bounded it by the line so established. Hence that line is conclusive upon her and the written description cannot be varied by parol. Ex'r. of Stevens v. Hollister, 18 Yt. 300 ; Hodges v. Strong, 10 Yt. 247; Lippett v. Kelley, 46 Yt. 514; Bagley v. Movill, 46 Yt. 94; Keenan v. Gavanah, 44 Yt. 276; Barnard v. Russell, 19 Yt. 334; Pimgry v. Watkins, 17 Yt. 379, 386.</p> <p>The courses and distances given in the record in the Probate Court are not consistent with the other monuments mentioned, nor with themselves. Hence parol evidence was properly admitted to show what the true line was. Hull v. Fuller, 7 Yt. 100; Patch v. Keeler, 28 Yt. 332.</p> <p>Parol evidence may be introduced to show that a monument was ei'ected which was not referred to in the deed. Clary v. Me Glynn, 46 Yt. 347.</p>

<p>Indictment for the larceny of a trunk and contents. Trial by jury at the September term, 1891, Tyler, J., presiding. Verdict of guilty. Exceptions by respondent.</p> <p>The opinion states the case.</p> <p>The ownership should have been alleged in Mrs. Gilson, the real owner. Otherwise the respondent may be again prosecuted for the same offence. 2 Rus. Or. 739 and 795; 1 Whar. Am. Crinr. Law, 595.</p>

<p> Administrator cannot contract debt against estate. Suit arid judgment against administrator. ■ ■ </p> <p>1. An administrator cannot contract a debt against the estate which he is administering.</p> <p>2. If a writ and declaration run against A, administrator of B’s estate, the writ is against A personally, and not against the estate, for the words “administrator of B’s estate” are merely descriptio personae and might be rejected as surplusage.</p> <p>8. So a judgment, following such a writ and declaration, against A “as administrator,” is not a judgment against the estate, but against A personally.</p>

Assumpsit for rent. Trial by court at the April term, 1891, Rowell, J., presiding. Judgment for the plaintiff. Exceptions by defendant. The case appears in the opinion. When real estate is sold upon execution, the purchaser must pay for the same as of the day of the sale. There is nothing in the law to prevent his taking immediate possession. If entitled to possession he would be entitled to the rent. No. 139, ss. 2-10, Acts of 1881.

<p> Pauper. Transporting into other, town. Verdict against evidence. </p> <p>1. A person is liable under R. L. s. 2844 for transporting a pauper from one town to another with intent to charge the latter with the pauper’s support,even though such latter town is legally chargeable therewith.</p> <p>2. Held, that upon the defendant’s own testimony he was guilty of the offence charged, and that a special verdict to the contrary was against the evidence and should be set aside.</p>

<p>This was a bill in chancery brought by the orator, as the administrator of Joel Randall, for the recovery of certain real estate alleged to have been conveyed by the intestate without consideration. Heard, at the June term, 1891, upon the pleadings, report of a special master, and exceptions of the defendants thereto. Ross, chancellor, fro forma, overruled the exceptions and dismissed the bill. The orator appeals.</p> <p>From the report of the special master it appeared that on the 30th day of January, 1882, Joel Randall, the intestate, was indebted to one Abigail Andrus in the sum of $1000 and interest from Jan. 9,1881, said debt being evidenced by a promissory note of that tenor, and was also indebted to Chester Pratt in the sum of $8, and L. W. Spaulding in the sum of $4.50 ; that being so indebted, he conveyed all his real estate to the defendants without other consideration than love and affection, and soon after-wards disposed of all his personal property which was subject to attachment.</p> <p>About the same time that he disposed of his personal property, he loaned one H. E. Taylor the sum of $1000 under an agreement that Taylor should pay Mrs. Andrus the amount due her from time to time, as she might require it. A written agreement was drawn up to that effect, which was as follows:</p> <p>“Whereas, Joel Randall is indebted to Abigail Andrus in the sum of one thousand dollars and the interest thereon of an amount uncertain, evidenced by his promissory note now holden by her, and whereas said Randall has this day loaned me the sum of one thousand dollars, now in consideration thereof I hereby promise to pay to said Abigail, her administrator, executor, or assigns, the amount due on said note at the time when and whenever the same shall be called f ór by her, her administrators, executors or assigns, and upon the surrender to me of the aforesaid note. . And the cancellation and surrender of said note by me shall be considered by said Randall, his executors, administrators, or assigns, as an entire satisfaction of this contract, and all my liabilities under or respecting the same.</p> <p>“ Dated at Cornwall, the 2d day of Sept., 1882.</p> <p>' H. E. Taylor.”</p> <p>Upon this contract the said Taylor made payments in small amounts from time to time. Feb. 27, 1884, Abigail Andrus died, being still the owner and possessor of the note. She left a will which was duly probated, by which she nominated one Skinner as her executor. Said Skinner declined to act, and the said EL E. Taylor was, in April, 1884, appointed administrator of her estate with the will annexed, and as such-administrator took possession of the note in question as a part of the assets of her estate.</p> <p>January 4, 1886, Taylor resigned as-administrator, and the orator was appointed his successor. The said note was thereupon turned over to him.</p> <p>September 27, 1886, the orator, as administrator of the estate of Abigail Andrus, applied to have himself appointed administrator of the estate of Joel Randall, representing that the estate of the said Randall was indebted to him as the administrator of Abigail Andrus, and October 18, 1886, he was appointed such administrator. At the same time commissioners were duly appointed upon said Randall’s estate, who, April 27,1887, returned their report to the Probate Court, which was accepted by said court and not appealed from.</p> <p>Said commissioners in their report allowed the claim in favor of the estate of Abigail Andrus, in the sum of $1,187.80, being the amount of the note and interest. The commissioners also allowed the claims before mentioned in favor of Chester Pratt and L. "W. Spaulding.</p> <p>The orator claimed to recover sufficient of the real estate conveyed to pay the debts allowed against the estate of the said Randall and’ the expenses of administration.</p> <p>The defendants insisted that by the arrangement between himself and the said Taylor, Joel Randall had made due provision for the payment of this indebtedness to Abigail Andrus; that Abigail Andrus in her life time had been a party to that arrangement, having assented thereto, and agreed to accept payment from Taylor. In order to sustain this issue, they introduced the said Taylor as a witness, and proposed to showthese facts by him. The orator objected to the admission of this testimony, and the same was excluded by the master.</p> <p>The defendants also offered upon the same issue the testimony of Mrs. Lucy Randall Barbour, the widow of Joel Randall and one of the defendants, who under the conveyances which it was sought to impeach, was entitled to an annuity. To the admission of her testimony the orator objected, and the same was excluded by the court.</p> <p>The orator offered in evidence the report of the commissioners upon the estate of Joel Randall. To the admission of this report the defendants objected, for that the same was void as an adjudication for want of proper parties. The same was, however, received by the master as evidence.</p> <p>The orator also offered in evidence the said note of $1,000. To the admission of this the defendants objected, for that, the same not having been duly presented to the commissioners upon the estate of Joel Randall, it could not now be urged as a claim against his estate. Against the objection of the defendants the note was received in evidence.</p> <p>The defendants excepted to the report of the master:</p> <p>1st. Because the master received the report of the commissioners.</p> <p>2d. Because the master received in evidence the note.</p> <p>3d. Because the master excluded the evidence of Taylor.</p> <p>4th. Because the master excluded the evidence of Mrs. Barbour.</p> <p>The judgment of the commissioners allowing this note against the intestate’s estate was valid. Riley v. Melnlear’s Est., 61 Yt. 254.</p> <p>Taylor was not a competent witness. The fact sought to be established by him, was the making of a new contract between Abigail Andrus, the intestate, and himself. The contract was in issue, and the other party had deceased. Earmers’• Ins. Go. v. Wells, 53 Yt. 14; lytle v. Bond’s Est., 40 Yt. 618; Barnes v. Dow, 59 Yt. 546; 1 Whart. Ev. s. 466 ; Chaffee v. Hooper, 54 Yt. 513 ; Richardson v. Wright, 58 Yt. 367 ; Canfield v. Bently’s Est., 60 Yt. 655.</p> <p>Mrs. Barbour was not a competent witness. The action was by an administrator, and. she herself was a party. Fitzsimmons v. Southwick, 38 Yt. 509; Ford’s Exr. v Cheney, 40 Yt. 153 ; Hollister, Admr., v. Young, 42 Yt. 403 ; McLane, Admr. v. Johnson, 43 Yt. 52 ; Roberts, Admr., v. Lvrnd, 45 Yt. 82; Davis, Admr., v. Bank, 48 Yt. 532.</p> <p>The allowance by the commissioners was void for the reason' that there were no proper parties to the suit. The same person cannot be both plaintiff and defendant. Dicey on Parties, 79 ; Pierson v. Nesbitt, 17 Am. Dec. 569 ; Eastman v. Wright, 6 Pick. 316; Estes v. Whipple, 12 Yt. 373; Green v. Chapman, 27 Yt. 236 ; Green v. Russell, 132 Mass. 536.</p> <p>This principal applies to a judgment of the Probate Court accepting the report of commissioners. 3 Redf. on Wills, 247 and note; Morse v. Slason, 13 Yt. 306 ; Adams v. Adams, 22 Yt. 62; French v. Windsor, 24 Yt. 409 and note; Moore v. Batch-elder, 51 Yt. 50.</p> <p>Such a judgment is absolutely void. Hendrick v. Cleveland, 2 Yt. 329 ; Moore v. Batchelder, 51 Yt. 50; Freem. Judg., s. 120 and cases cited; Adams v. Adams, 22 Yt. 62, 71; French v. Windsor, 24Yt. 409.</p> <p>The defendants at all events, are not concluded by that judgment. They claim not as heirs, but as grantees, and as such, are strangers to the judgment. R. L. s. 2275 ; Gilbert’s Admr. v. Howe’s Admr., 47 Yt. 402 ; Sprague v. Waldo, 38 Yt. 139 ; Freem. Judg. s. 156.</p> <p>The testimony of Taylor should have been admitted. If true, it proved a novation which discharged the intestate. Goochie v. Brock, 52 Yt. 107; Bacon v. Bates, 53 Yt, 32; Kelso v. Fleming, 1 West.- Rep. 845; Oadens v. Tea.sdale, 53 Yt. 469; ■Hayden y. White, 26 Yt. 768;- 1-Par. Con. 217.</p> <p>■■ This agreement was not, however, the contract or cause-of action in issue aud on trial. Manufacturer’s -Bank v. Scofield, 39 Yt. 590 ; Lytle v. Bond, M) Yt. 618; Gole -v. Shurtleff, 41 Yt. 311; Morse v. Low, 44 Yt. 561; Walling v. Newton, 59 Yt. 684; Oamfield v. Elias Bentley's Est., 60 Yt.' 655.</p> <p>Moreover the testimony was not offered ■ in' his■ own favor. Jones, v. Walcott, 15 Gray 541; Bigelow v. Hyer, 3 Allen 243 ; Gay v. Gay, 5 Allen 157; Granger v: Bassett, 9-8 Mass. 462; Looker v. Davis, 47 Mo.. 140; Bradley v. West, 68 Mo. 69; "Bell v. Western M. <& E. Lns. Go., 39 Am. Dee. 542.</p> <p>The-testimony of Mrs. Barbour should have been admitted. Looker v. Looker, 47 Mo. 140 ; Bradley v. West, 68 Mo. 69.</p>

Report of referees appointed under R. L. ss. 990-992. Heard at the December term, 1890, Taft, J., presiding. Judgment for the defendant upon the report. The plaintiffs except.

<p>Declarations of the wife in swit for alienation of her affections. Previous cruel treatment by husband. Conduct of counsel reversible error. Pule of damages.</p> <p>1. The action being for the alienation of the affections of the plaintiff’s-wife whereby she was induced to and did abandon the plaintiff and refuse to live with him, the defendant may show what the wife said when leaving her husband’s house, and while on her way to the house where the defendant was stopping some eight miles distant, and to the defendant upon arriving there, when he advised her to return to her husband, for all this is a part of the res gestae.</p> <p>2. He may also show that the wife had become embittered towards the plaintiff before this in consequence of his cruel treatment of her, and had éntered a complaint against him for an assault upon her.</p> <p>3. Also that the wife’s mother had written the plaintiff a letter accusing him of ill treating her daughter, that the plaintiff made no reply to this, and after receiving it refused to speak to the mother.</p> <p>4. The plaintiff was properly permitted to testify that on several occasions he invited his wife to go to the village with him, and that she refused and afterwards went with the defendant.</p> <p>5. The defendant proposed to ask the plaintiff on cross-examination, “ Didn’t you tell her, your wife, that you were using oil of cubebs for a trouble you had,” referring to the claim of the defendant that the plaintiff had contracted a bad disorder in a house of ill fame. Held, rightly excluded as calling for immaterial matter.</p> <p>6. It is reversible error if counsel, after a letter has been excluded, persists, against the objection and exception of the other side, in offering the separate parts of it in such a way as to get its contents before the jury.</p> <p>7. In an action for the alienation of the wife’s affections, the value of the wife’s services is not the true rule of damages.</p>

<p> Demurrer. Meaning of the word premises in pleading. Allegation of time a/nd place carried forward. Joi/nt action against master and servant. Certainty to a common intent. </p> <p>1. Where a count in trespass is entitled ‘‘ In a plea of the case,” such defect cannot be reached by demurrer.</p> <p>2. The word ‘ ‘premises” as used in pleadings refers to what has been already set forth, and the phrase“by means of the premises” is equivalent to by means of what has been previously detailed.</p> <p>3. An allegation that the plaintiff was obliged to lay out large sums in curing herself of the injuries inflicted by the defendants, is in effect an allegation that she did lay out said sums.</p> <p>4. Where one clause contains an allegation of place and- time, that allegagation will be treated as carried into a second clause connected with the first by the conjunction and.</p> <p>5. A demurrer only reaches those parts of a count which are essential to the action, and wholly immaterial allegations may be stricken out.</p> <p>6. When language taken in its natural sense can convey no other meaning ‘ than that claimed for it by the x>leader, it is certain, to a common 'intent, and that is sufficient for the allegations in a declaration.</p> <p>7. J2eM,that the second count alleged in a maimer certain to a common intent that the injury to the plaintiff was the indirect and consequential result of the negligence of both of the defendants, and that therefore the action was properly brought against the two jointly.</p>

Assumpsit for goods sold and delivered. Pleas, the general issue and statute of limitations. Heard upon defendant’s demurrer to the plaintiff’s replication to the second plea, at the December term, 1891, Tyler, J., presiding. Demurrer sustained and judgment for the defendant. The plaintiff excepts.

<p> Libel. Sending sealed letter not publication. Husband and wife. </p> <p>1. The sending of a libellous communication by mail in a sealed envelope addressed to the person libelled, is not, without some additional fact, a publication of the libel, although the person addressed is a married woman.</p> <p>2. A husband has no legal right to open the letters of his wife without her consent; and if she voluntarily shows him the libel that is her publication.</p> <p>3. Quere, how it might be if the husband was in the habit of opening his wife’s correspondence, and this was known to the sender.</p>

Beplevin for a quantity of hay, corn and oats. Plea, the general issue. Trial by court at the December term, 1890, Taft, J., presiding. Judgment for the plaintiff. The defendant excepts. The opinion states the case. The act of 1884 should not be given a retrospective effect. Potter’s Dwarris, 14, 162; Hiñe v. Pomeroy, 39 Yt. 211; Starhsloro v. 1Unesburg, 13 Yt. 215; Harris v. Townshend, 56 Yt. 716 ; 1 Kent Com. 455. So far as it concerned past debts it was unconstitutional.

<p>Trespass met armis. Pleas, the general issue and a.special plea in bar. Heard at the December term, 1891, 'Tyler J., presiding, upon the plaintiff’s demurrer to the defendant’s plea in bar. The demurrer was overruled and the plaintiff excepted.</p> <p>The plaintiff’s declaration was in three counts, the first and second for the arrest and imprisonment, and the third for a simple assault. The defendant’s plea in bar was as follows:</p> <p>“That on the 16th day of November, A. D. 1889, this defendant was by the governor of the State of Yermont, duly appointed judge of the Municipal Court, in and for the village of Bennington, and as such judge this defendant was duly sworn and gave the bond required bylaw and on the first day of Decernber, A. D. 1889, entered upon the performance of the duties devolving upon him as judge of such court, and was at the time of the committing of the said several supposed grievances, in the said several counts of the said declaration mentioned, ever since lias been and still is, the judge of said Municipal Court, and lawfully exercising and discharging the powers, duties and functions that pertain to said office of judge of said Municipal Court.</p> <p>That on the 1st day of July, 1890, one Joseph Hill of Bennington, was brought before said Municipal Court, by virtue of a warrant against him, the said Hill, in the name of the State of Vermont, duly issued from and out of said court, and founded on a complaint exhibited to said court by O. M. Barber; State’s attorney, for the county of Bennington, charging that the said Joseph Hill, at said village of Bennington, on the 1st day of-April, A. D. 1890, did at divers times,sell, furnish,and giveaway intoxicating liquor, without authority, contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State.</p> <p>That the crime charged against the said Hill, in and by said complaint, was within the jurisdiction of the said Municipal Court, to try and determine, and that said cause was in said court entitled the State of Vermont against Joseph Hill, that such proceedings were had in said cause by and before said court, that on the 10th day of July, A. D , 1890, the said cause was by said Municipal Court, this defendant then still being the judge thereof and as such then presiding therein, heard and determined.</p> <p>That on the hearing of said cause and before the determination thereof, divers, persons and among them Merritt F. Rudd, this plaintiff, were summoned as witnesses to testify what they knew relative to the said cause, then so on trial, that the said Merritt F. Rudd then and there appeared before said court and was duly sworn as a witness therein, in said cause, that the said State’s attorney thereupon then and there, and after said Rudd had been duly sworn as aforesaid, and before said court, in the trial of said cause, interrogated the said Rudd as a witness, sworn as aforesaid, as to certain matters material to the issue then on trial, to wit: the cause of the State pf Vermont against the said Joseph Hill; that the said Merritt F. Rudd, being then and there so interrogated, did not and would not answer said interrogatories of the State’s attorney, but wilfully and contumaciously refused so to do, that the defendant as judge of said Municipal Court and not otherwise, then and there instructed said Merritt F. Rudd that said interrogatories were relevant and proper interrogatories, and material to said cause then on trial, and did direct and order said Eudd to make answer to said interrogatories, and did then and there also instruct the said Eudd that a refusal so to do would be a contempt of said court. That thereupon said interrogatories were again by the said State’s attorney, by the direction of this defendant as judge of said Municipal Court and not otherwise, put to said Eudd, as witness as aforesaid, before said court in said cause, that the said Eudd refused to obey the said direction and order of said court, and did again wilfully and contumaciously refuse to answer said interrogatories, or any of them; that thereupon this defendant as judge of said Municipal Court and not otherwise, did adjudge that the said Merritt F. Eudd, by his said wilful and contumacious refusal to answer said interrogatories, was then and there guilty of contempt of said court, and thereupon did also then and there adjudge, order and direct, that the said Merritt F. Eudd be. committed to the common jail in Bennington, in the county of Bennington, until he purge himself of said contempt, by making answer to said interrogatories, and be further dealt with according to law, as it was lawful for the said defendant to do with the causes aforesaid. And this defendant did no other act or thing; that immediately thereupon, one Andrew J. Pike, then the sheriff of Bennington county, pursuant to the said order and direction of the said Municipal Court, gently laid his hands upon the said Merritt F. Eudd, and with no more force than necessary, did compel the said Merritt F. Eudd to go along the street of said village of Bennington, to and into the common jail, there then situate, and him the said Merritt F. Eudd did then and there commit to said jail, and him there did detain by virtue of said order and direction of said court as he lawfully might do for the causes aforesaid, and which are the said several supposed trespasses, in the said several counts, in plaintiff’s declaration mentioned, and whereof the said plaintiff hath above complained against the said defendant.”</p> <p>The plea in bar does not contain an answer to all the trespasses counted on in the declaration. 1 Chitty PL p. 524; 1 Saund. PL p. 28, n. 3; Gould’s PL 358 ; Hathaway v. Riee, 19 Yt. 102; Goodrich v. Judevvne, 40 Yt. 190; Ellis v. Cleveland, 54 Yt. 437 ; Gregory et ux v. Hill, 8 Term. E. 299 ; Oalees v. Wood, 2 M. and W. 791.</p> <p>As judge of the Municipal Court, the defendant might commit the plaintiff for refusing to answer the questions put to him as a witness. In re Jesse Cooper 32 Yt. 253; Village of 'Winooski v. Gokey, 49 Yt. 285 ; In re John Percey, 2 Daley 530 ; People v. Revins, 1 ITill 154; State v. Matthews, 37 N. H. 450 > State v. Gopp, 15 N. H. 212.</p> <p>And for the exercise of this judicial authority the defendant is not liable to a private action. Bradley v. Fisher, 13 "Wall. 339 ; Randall v. Brigham, 7 ’Wall. 523 ; Pratt v. Gardner, 2 Cush. 68 ; Yates v. Lansing, 5 John. 291; Wright v. FLazen a/ncl Gordon, 24 Yt, 143.</p>

<p> Tenant cannot dispute landlord’s title. Payment of rent and occupation raises promise to pay further. </p> <p>1. As a general rule the tenant cannot dispute his landlord’s title, and the same rule applies to an assignee of the tenant.</p> <p>2. In an action for the recovery of rent the tenant who seeks to deny the title of his landlord must show that the case falls within some exception to the general rule.</p> <p>3. If the tenant recognizes the title of his landlord and pays him rent, that fact raises a promise between the parties upon which an action in general assumpsit will lie.</p>

<p> Murder in second degree. Malice. Evidence. Threats. Exceptions. </p> <p>1. Upon a trial for murder a witness, not an expert, maybe properly .asked what the appearance of the respondent was when. charged with the crime and denying the charge.</p> <p>2. And if in answer to the accusation the respondent says that the deceased died of heart disease, when in fact she died of a stab in the heart, that may be shown.</p> <p>3. Evidence that the respondent threatened to kill the deceased upon condition, is admissible when accompanied by proof that the condition has happened, although such threats were made six or eight months before the killing.</p> <p>4. When an exception is to the charge of the court as given, and the error insisted upon is, not that the charge as actually given was erroneous, but that the court should have gone further, the exception will not be sustained, if it would have been the duty of the court in other parts of the charge to supply the claimed omission, and it does not affirmatively appear that the court failed to do so.</p> <p>5. Murder in the second degree involves malice, but not premeditation; and an instruction that it wants the elements of both malice and premeditation is erroneous.</p>

<p>Action for libel. Plea, the general issue with notice of special matter in justification. Trial by jury at the February term, 1892, Bennington county, Tyler, J., presiding. Verdict and judgment for tlie plaintiff. The defendant excepts.</p> <p>Tlie libel sued upon was as follows: “ Luman P. Norton is tlie only insurance agent in Vermont wlio has been convicted in open court of wilful perjury,” and this was the whole publication. The plaintiff alleged by tlie innuendos in his declaration that tlie defendant meant thereby to charge the plaintiff with having been indicted, tried and convicted of perjury. The defendant set forth in his notice and offered to show on trial that in a certain action pending in the Bennington County Court, to which the plaintiff was a party, the said plaintiff téstified in his own behalf, and in the course of his testimony upon a material issue committed perjury; that he was then and there detected therein in so summary and convincing a manner that his guilt was apparent to all who were present; and the defendant insisted that the word “ convicted ” was not used in its legal sense of tried and found guilty, but in its more popular sense of found guilty or detected in guilt, in which, if the jury found the words were so used, they were true. The court ruled, however, that the defendant could justify^ the language only in the sense laid by the innuendo, and rejected the evidence as matter of justification, to which the defendant excepted.</p> <p>The defendant then claimed that it should be left to the jury to say whether the words were used in the sense claimed by him or in the sense put upon them by tlie innuendo, but the court declined to submit this issue to the jury, and instructed them to return a verdict for the plaintiff, to which the defendant excepted.</p> <p>The remaining exception appears in the opinion.</p> <p>The innuendo might have been rejected on trial by the plaintiff and a recovery had upon the words themselves. Hence it should have been left to the jury to say in what sense they were used, and if the jury found that they were used in the sense claimed by the defendant, then he might show that in that sense they were true. Odgers Lib. and Sian. 101,177, 487 ; Sabin v. Angelí, 46 Yt. 740; Watldn v. Kail, L. R. 3 Q. B. 396.</p> <p>If this is not so, and the plaintiff was bound by meaning assigned by the innuendo, then it should have been left to the jury to say whether the words were used in that sense. Odgers Lib. and Sian. 94, 98, 101; Folk. Star. Sian, and Lib. ss. 556> 559, 561, 564; Ridclell v. Thayer, 127 Mass. 487 ; Goodrich v. Wolcott, 3 Oow. 231.</p> <p>If the defendant seeks to justify, he must justify the libel as laid in the innuendo. Mott v. Stoddard, 38 Yt. 25 ; Royce vMaloney, 57 Yt. 325.</p> <p>The language of the libel was plain and unambiguous. It could only have been understood by the reader in one sense, and it is immaterial what the writer may have intended. Town. SI. and s. 140; Knapp v. Fuller, 55 Yt. 311.</p>

<p>Case for negligence of defendant in maintaining a defective bridge. Plea, tbe general issue. Trial by jury at the May term, 1891, Ross, Olí. J., presiding. Yerdict and judgment for tlie plaintiff. Tlie defendant excepts. Tlie questions raised sufficiently appear in the opinion.</p> <p>The notice was as follows:</p> <p>To O. G-. Richardson, Vm. H. Edmunds and Charles Cobb, selectmen of the town of Stockbridge:</p> <p>You are hereby notifiePtliat on the 21st day of March, A. D. 1890, at said Stockbridge, one "Wells Blanchard, of saidStockbridge, was driving a span of horses belonging to us down the hill in said Stockbridge between the so-called Stony Brook bridge and tlie dwelling house of Emmans Knowlton in said Stockbridge, that said horses then and there on said hill became frightened and unmanageable and ran away and got away from said Blanchard and ran towards said Stony Brook bridge and onto the abutment thereof, and for want of proper and sufficient muniment or guard on said abutment, one of the horses went off said abutment and fell a distance of from ten to fifteen feet, thereby killing said horse. Said horse fell from the first abutment of said bridge on the right hand side as one would go from Rochester to Bethel, about five feet from the end of the bridge, nearest the junction of the Stony Brook road with the so-called river stage road.</p> <p>And you are hereby notified that we shall claim satisfaction of the town of Stockbridge for the injury and damage occasioned to us as aforesaid.</p> <p>Wm. Tinkham & Son.”</p> <p>The question as to what part of the approaches - the retaining wall formed was one of fact, not opinion, and proper. Lumd and wife v. Tyngsborough, 9 Cush. 36, 39 ; Porter v. Peguonnoe Mfg. Go., 17 Conn. 249, 256.</p> <p>Even if an opinion, it was of such a nature as to be admissible. Hardy v. Merrill, 56 N. H. .227, 241; 1 Whart. Ev. ss. 509-513; Parsons v. Insurance Go., 16 Gray, 463, 467; State v. Folwell, 14 Kan. 110; Indianapolis v. Huffier, 30 Ind. 235, 237; Bates v. Sharon, 45 Yt. 475, 480 ; Fulsorn v. Ooncord, 46 Yt. 140.</p> <p>There was no evidence tending to show that the wall at the place of the accident was a part of the bridge. Powers v. Woodstock, 38 Yt. 44, 49.</p> <p>The charge as to what of the approach constituted a part of the bridge was correct. Bardwell v. Jamaica, 15 Yt. 438 ; Tol. land v. Wellington, 26 Conn. 5^8 ; Freeholders of Sussex v. Strader, 3 Ilarrison, N. J. 102; Penn. Township v. Perry Country, 78 Pa. St. 457; Daniels v. Athens, 55 Ga. 609; State v. Gorham, 37 Me. 461; Commonwealths. Central Bridge Gorp., 12 Cush. 242.</p> <p>The notice was sufficient. Laws. Fair'field, 46 Yt. 425; Ranney s. Sheffield, 49 Yt. 191; Bliss s. Whitingham, 54 Yt. 172; Melendy s. Bradford, 56 Yt. 148 ; Reynolds s. Burlington, 52 Yt. 300.</p> <p>The evidence rejected was an opinion upon the very question for the jury. Lester s. Pittsford, 7 Yt. 158; 1 Star. Ev. 153 ; Clifford v. Richan-dson, 18 Yt. 620 ; Cram s. Northfield, 33 Yt. 124; Fratzer s. Tupper, 29 Yt. 410 ; Caroendish s. Troy, 41 Yt. 99 ; Fulsorn s. Concord, 46 Yt. 135 ; Oaks v. Weston, 45 Yt. 430 ; Carpenter s. Corinth, 58 Yt. 214; Stowes. Bishop, 58 Yt. 498 ; Bermetts. Rd. Co., 58 Yt. 636.</p>

<p>Special assumpsit on note. Plea, the general issue. Trial by jury at the May term, 1891, Ross, Ch. J., presiding. At the close of the testimony the Oourt ordered a verdict for the plaintiff. Exceptions by the defendant. The opinion states the case.</p> <p>Evidence of contemporaneous similar fraudulent transactions was admissible. Eastman v. Premo, 49 Yt. 335; Henguin v. Taylor, 24 N. Y. 139; Bradley v. Ober, 10 N. H. 291, 477 > Pierce v. Hoffman, 24 Yt. 525 ; Bradley Fertilizer Co. v. Fuller, 58 Yt. 315.</p> <p>The Oourt properly excluded the depositions. Noyes v. Lamdon, 59 Yt. 569 ; Blaney v. Pelton, 60 Yt. 285 ; Powers v. Ball, 57 Yt. 662; Farrer v. Freeman, 44 Yt. 63; Thrall v. Horton, 44 Yt. 386 ; Story Prom. Notes, s. 191, 215 ; Ohit. PI. 78, 79 ; Hascall v. Whitmore, 19 Me. 102 ; Smith v. Hiscock, 14 Me. 499 ; Homes v. Srwith, 16 Me. 177 ; 1 Am. Lead. Oas. 332 and cases cited; Blanchard v. Stevens, 3 Cush. 162; Chicopee Bank v. Chapin, 8 Met. 40 ; Atkinson 'v. Brooks, 26 Yt. 569.</p>

<p>Case for the obstruction of a watercourse. Plea, the general issue. Trial by jury at the December term, 1891, Taft, J., presiding. The Court directed a verdict for the defendant upon the ground that there was no evidence tending to show the existence of a watercourse. The plaintiffs except.</p> <p>The opinion states the case.</p> <p>The evidence of the plaintiffs tended to show the existence of a watercourse. -Beard v. Murphy, 37 Vt. 99; Winn v. Rutland, 52 Yt. 481; Boynton et al v. Oilman, 53 Yt. 17; Gillette v. Johnson, 30 Conn. 180 ; MeComber v. Godfrey, 108 Mass. 209, 219 ; Ferris v. WeUburn, 64 Miss. 29; McOlure v. Redwing, 28 Minn. 187. '</p> <p>There was no watercourse. Ashley v. Wolcott, 11 Gush. 195 ; Ang. Waters, 44; Gould Waters, ss. 263, 264 and41; and cases cited ; Bangor v. Lasell, 51 Me. 521; Av&ry v. Empire Woolen Go., 82 N. Y. 582 ; I*ark v. Newburyport, 10 Gray 28 ; Hoioard v. Ingersoll, 13 How. 427; Gibbs v. Williams, 25 Kan. 214; G. K. c& W. R. Go. v. Morrow, 42 Kan. 339, 340, 341; 3 Kent’s Com. s. 439, note a \Rawston v. Taylor, 33 Eng. L. & Eq. 428 ; Broadbent v. Ramsbotham, 34 Eng. L. & Eq. 553 ; Luther v. Winnisimmet Go., 9 Cush. 171; Shields v. Arndt, 3 Green Oh. R. 234, 246.</p>

<p> Statute of limitations. Acknowledgment of payment. Payment by husband may keep alive mortgage as against wife. </p> <p>1. An endorsement upon a promissory note, “ Paid on this note, March 11, 1882, ten dollars,” signed by the maker, is a sufficient written acknowledgment to interrupt the running of the statute of limitations, although no payment was in fact made.</p> <p>2. And where a wife joined with her husband in a mortgage of her real estate to secure the payment of the note, which was signed by her husband alone, such an acknowledgment by the husband will keep alive the mortgage as against her.</p>

<p>Trover for a colt. Plea, the general issue. Heard at the December term, 1889, Ross, J., presiding, upon an agreed statement of facts. Judgment for the defendant. The plaintiff excepts.</p> <p>The plaintiff acquired title to the colt under his mortgage. Clark v. Hayward et al, 51 Yt. 14; Boynton v. Bradley,54 Yt. 92; Forman et al, v. Proctor'et al, 9 B. Monroe 124; Thorpe Bros. & Co. v. Cowles et al, 65 Iowa 408; Kellogg v. Zoveley, 46 Mich. 130; Evcm et al, v. Meriken, 8 G. & J. 39.</p> <p>Jones Chat. Mort, s. 150; Buckmaster-v. Smith, 22 Yt.203; Chturch v. McZeod, 58 Vt, 541; Morgan v. Kidder <& Pobinson, 55 Yt. 367; Calkins v. Clement, 54 Yt. 634.</p>

<p>Trespass for false imprisonment. Plea, the general issue with notice of justification under a tax warrant. Trial by jury at the May term, 1891, Ross, Oh. J., presiding. The Court directed a verdict for the plaintiff. Exceptions by the defendant.</p> <p>The evidence of the plaintiff tended to show that on or about the 19th day of May, 1885, he was arrested by the defendant, at Plymouth, and transported to Woodstock for the purpose of being committed to the public jail, and that he was compelled to pay, and did pay, in Woodstock, the sum of $49.73 to procure his release from such restraint. '</p> <p>The defendant justified as the collector of taxes for the town of Plymouth for the year 1885. The tax in question was a highway tax assessed upon the grand list of 1882. The grand list and the original assessment of the tax, were in all respects legal, and the tax was a valid tax as against the plaintiff. In 1882 the selectmen of the town of Plymouth issued a rate-bill containing this tax against the plaintiff and the plaintiff paid a portion of it, leaving still due the sum of $40.92. In 1885 the selectmen of the town of Plymouth for that year, attached a new warrant to this same rate bill and placed it in the hands of the defendant for collection. Under this warrant the defendant demanded the amount of the unpaid tax from the plaintiff, and upon his refusing to pay the same, took him into custody and carried him to Woodstock, whereupon the plaintiff paid the defendant the amount of said tax and the costs of c.ollection, amounting in all to $49.73. There was some evidence in the case tending to show that the plaintiff consented that the defendant might arrest and commit him to jail, as is fully stated in the opinion of the court.</p> <p>The court directed a verdict for the plaintiff for the sum of $67.63, and costs, that being the amount paid by the plaintiff to procure his discharge together with interest from the date of such payment to the time of trial. To this action of the court the defendant excepted.</p> <p>The plaintiff paid the defendant the amount of this tax under protest, and the suit for its recovery should have been brought within one year. No. 8, Acts of 1884.</p> <p>The court erred in directing the verdict.</p> <p>a. There was evidence in the case tending to show that the plaintiff consented to the restraint. Ellis v. Cleveland, 54 Yt. 437.</p> <p>b. In actions of tort the court can only direct a verdict for the plaintiff in nominal damages. Thomp. Tr. p. 1472 et seg.j Benjamin v. Hillard, 23 ITow. 149 ; Worster v. Canal Bridge, 16 Pick. 541; Kimball v. Bath, -38 Me. 219.</p> <p>e. What the plaintiff paid was a tax actually due from him to the town. Hence the damages should have been mitigated to the extent of that tax. Hunlburtv. Green, 41 Yt. 490; Pierce v. Benjamin, 14 Pick 356.</p> <p>d. The plaintiff was not entitled to interest as matter of law. 2 Thomp. Tr. s. 2066; Richmond v. Bronson, 5 Denio. 55; Watleinson v. Laughton, 8 Johns. 213 ; Clement v. Spear, 56 Yt. 401. •</p> <p>The court properly directed a verdict. The warrant under which the defendant acted was illegal, and, therefore, his justification failed. No. 12, Acts of 1884, s. 9.</p> <p>No. 8, Acts of 1884, only applies to actions in assnmpsit for the recovery of taxes paid under protest. B. F. Canal Co. v. Rodcingham, 37 Yt. 622; Spear v. Town of Braintree, 24 Yt. 414; Vt. Cent. Rd. Co. v. Burlington, 28 Yt. 193; Slade v. Norwich, 32 Yt. 818.</p> <p>The fact that the tax was actually due from the plaintiff has no bearing upon the damages in this suit. The arrest and confinement were illegal. Hull v. Rap, 40 Yt. 57 6; Irish v. Cloyes <& Morse, 8 Yt: 39; Stewart v. Martin, 16 Yt. 397.</p> <p>There was no error in including interest in the verdict. Dindsley v. Danville, 46 Yt. 144; Thrall v. Lathrop, 30 Yt. 307; Grant v. King et al, 14 Yt. 367.</p>

<p> Adjournment of County Court. To place other than court house. By a single judge. Error must affirmatively appear. Statute of limitations. Items of credit not claimed, Wife not a witness. Services performed on Sunday. Statute of frauds. Novation. Administrator may recover in individual capacity for debt due estate. Computation of interest. Memorandum booJes as evidence. </p> <p>1. The County Court for the county of Windsor maybe adjourned from the court bouse to the residence of one of the ■ assistant judges in Woodstock.</p> <p>2. The presiding judge alone may make such adjournment if the two assistant judges are disqualified from acting.</p> <p>8. Sickness is a legal disqualification; and where the exceptions state that one assistant judge was confined to his house by ill health and that the other was absent, error in making the adjournment does not affirmatively appear, for it is the duty of the assistant judge to be present unless disqualified, and the presumption is that he does his duty.</p> <p>4. In an action of book account one party may credit the other with items, which are proper items of credit, and thereby avoid the operation of the statute of limitations, although the other party claims nothing by reason of such items and insists that they should not be credited to him.</p> <p>5. The defendant directed his wife to pay the plaintiff for certain services and the wife did pay him in the presence of her husband. Held, that the wife was not a competent witness to this fact, for that in the making of such payment she was not the agent of her husband.</p> <p>6. The auditor reported, in respect to certain items which he allowed the plaintiff, that they were for services performed on Sunday. Held, that the allowance by the auditor would not be set aside in Supreme Coiu-t since it did not affirmatively appear that the service was per- , formed before sunset on Sunday nor that it was not a work of charity or necessity.</p> <p>J The defendant being indebted to G and 0 being indebted to the plaintiff, it was agreed between the three that the plaintiff should discharge 0 and that the defendant should pay the plaintiff the amount which he owed C. Held, that this promise of the defendant was an original one and not within the statute of frauds.</p> <p>8. The plaintiff may recover in his individual capacity for material sold by him to the defendant, although the material belonged to an estate of which the plaintiff was the administrator, and although the plaintiff has not accounted to said estate for the same.</p> <p>9. The auditor not having been requested to report what method he used in the computation of interest, the judgment of the County Court accepting the report will not be reversed, because it does not appear from the report what method he adopted, nor how he could have ar_ rived at the result in respect of interest which he did.</p> <p>10. Memorandum books, though not independent evidence, are admissible in connection with the testimony of the one who kept them.</p> <p>11. A party may testify to services performed by him in serving certain writs without the production of the writs themselves.</p>

<p> Mortgage. Payment by Mortgagor. Estoppel. Betterments. </p> <p>1. A payment by the mortgagor within fifteen years prevents the running of the statute as to the entire premises, notwithstanding the mortgagor, to the knowledge of the mortgagee, has conveyed a portion of the same to a third party, who has been in the exclusive occupancy thereof for more than fifteen years, without making any payment upon or otherwise recognizing the mortgage debt.</p> <p>% In such case the mortgagee is not estopped from asserting his lien by the fact that he has stood by and seen the grantee expend large sums upon the granted portion, it not appearing that the grantee was misled by the mortgagee.</p> <p>•3. Nor is the grantee entitled to betterments, if he knew of the existence of the mortgage when he accex>ted the conveyance.</p>

<p>Assumpsit. Trial by court at the December term, 1891, Taft, J., presiding. Judgment for the plaintiff’ The defendant excepts. The opinion states the case.</p> <p>The committee could not bind the defendant for the instruction of its scholars without the vote of the district. Woodcock v. Bolster, 35 Yt. 132; Goodwin v. Perkins, 39 Yt. 578; Chittenden v. School Dist., 56 Yt. 551; No. 9 of the Acts of 1888, s. 105.</p> <p>. The appointment of an agent without a suitable warning would not make the district liable for his acts. No. 9, Acts 1888, s. 90; Hunt v. School District, 11 Yt. 300; Shaw v. Bug-bee, 16 Yt. 139; Greenbanlcs v. Boutwell, 13 Yt. 207; Blush v. Colchester, 39 Yt. 193 ; Atwood v. Lincoln, 11 Yt. 332 ; Allen v. Burlington, 15 Yt. 202, Harrington v. School District, 30 Yt. 155 ; Angel and Ames Oorp. s. 239; Hayden v. Middlesex Turnpike Co., 10 Mass. 397.</p> <p>Without any vote of the district the prudential committee might provide" at the expense of the district for schooling its pupils. Chittenden v. School District in Waterbury, 56 Yt. 551; School District v. Harvey, lb. 556.</p> <p>The plaintiff was not bound to inquire whether the necessary vote had been passed. Baker v. School District in Barton, 16 Yt. 189; Manhattan Hardware Co. v. Roland, 18 Atl. Rep. 128, pi. 2.</p> <p>The defendant having received the benefit of the contract should perform on its part. Lynch v. Flint, 56 Yt. 16; State Baptist Convention v. Ladd, 58 Yt. 95, pi. 3; Rowell v. School District in Tunbridge, 59 Yt. 658.</p>

Book account for the purchase price of certain intoxicating liquor. Heard upon the report of an auditor at the December term, 1891, Taft, J., presiding. Judgment upon the report for the plaintiff. The defendant excepts. The facts appear in the opinion. The sale was at Windsor. The duplicate receipt did not pass the title until the receipt of the goods.

<p> Defective allegation rejected as surplussage. Construction of agreement to convey. ' </p> <p>1. A declaration otherwise good, is not rendered bad on demurrer by a defective allegation which maybe rejected as surplussage.</p> <p>2. Held, that the declaration sufficiently alleged that the defendants promised for themselves, and not for the corporation in which they . were stockholders.</p> <p>3. Also that upon the facts set forth the plaintiff was entitled to a conveyance to himself upon offer of the purchase price, and that it was immaterial whether he sold it to others.</p>

<p>Highways. Land damages. Private road already constructed. Revision of judgment in Supreme Court.</p> <p>1. Where a public highway is laid out over a private road in such manner as to convert the private into a public thoroughfare, the land owner is not entitled to recover as damages the expense of constructing the private road, but simply such damages as is actually done him by the taking, notwithstanding that the public has the benefit of his labor.</p> <p>2. Where commissioners appointed by the County Court upon the laying-out of a highway, report certain facts, upon which the County Court gives judgment,the Supreme Court will revise the judgment in so far-as it contains errors of law.</p>

<p> Setting wife’s sole property to husband and wife does not avoid list. Failure of clerk to record warning' not fatal. JTo. 181, Acts 1888. Construction of statutes. Warning. </p> <p>1. The fact that the sole property of the wife is set in the list to herself and her husband jointly does not render the list void as against her.</p> <p>2. In the construction of statutes the intention of the law-giver, when accurately ascertained, will prevail over the literal sense of terms.</p> <p>3. The proceedings of a school district meeting are not void because the clerk failed to record the warning in accordance with No. 181, Acts of 1888.</p> <p>4. Under a warning to see if the district will “ vote to raise money to pay the district expenses,” a vote to “raise money to support the school and pay the indebtedness of the district,” is sufficiently definite.</p>

<p> Sale of property may include procuring conveyance of same. </p> <p>The plaintiff’s declaration alleged that the defendant, being a large stockholder in that company, promised in writing to pay him the sum of two thousand dollars provided he would “ do work and sell for Woodbury Granite Co. the lands and property of same for the sum of thirty thousand dollars; ” that he did sell the property for that price to one Viall, notify the defendant thereof and request him to cause said property to be conveyed to said Viall, but that the defendant thereupon notified the plaintiff that the said property would not be conveyed by the said Woodbury Granite Co.1, and that the defendant would not accept said sum of thirty thousand dollar’s for the same. Held, that no cause of action was disclosed, for that a “sale ” included not only the finding of a purchaser, but .the procuring of a conveyance from the company.</p>

General assumpsit. Heard at the June term, 1891, Taft, J., presiding, upon the plaintiff’s demurrer to the second and third pleas of the defendent. Demurrer overruled and cause passed to Supreme Court before final judgment upon plaintiff’s exceptions to this ruling. The plaintiff’s second and third pleas were both pleas in offset.

<p>Petition for divorce. Heard at the September term, 1891, Start, J., presiding. Petition denied. The petitioner excepts.</p> <p>The petitionee had been for many years the hired man of the petitioner’s father, and as snch a member of his family. The petitioner had lived in the same family, and although not married to the petitionee had stood to him in the relation of wife: Subsequently to the death of her father she married one Could whom the petitionee shot and killed the day after the marriage. For this act he was arrested, tried and convicted of murder in the second degree. After the conviction and while the case was pending on exceptions in Supreme Court, the petitioner married the petitionee in jail. Subsequently the petitionee was sentenced to the State prison for life, and this was the cause alleged in the petition.</p> <p>The statute is mandatory and the court has no discretion. Miners v. The Mechanic's Banh of Alexandria, 1 Pet. 46 ; Supervisors v. TJ. S., 4 Wall. 485.</p>

<p> Exceptions to report not necessary where question is submitted by-referee. Tenant in dower may maintain action for injury to reversion. But not against the grantee of the -reversioner. </p> <p>1. Where the report of a referee submits to the court a question of law upon the facts found, no 'exception to the report is needed to raise that question.</p> <p>2. A tenant in dower is hable to the reversioner for waste done the premises by a stranger, and may therefore maintain an action against a stranger for an injury to the reversion.</p> <p>3. A judgment in such an action would bar an action for the same injury by the reversioner, for the tenant and reversioner are privies in estate.</p> <p>4. The plaintiff was the widow of Silas Willey. Volney Willey, the heir of Silas Willey, conveyed to the defendant the east half of lot 31, “except five acres more or less out of the south-east corner of said lot heretofore set off as a part of the widow’s dower.” In fact more than fourteen acres of said lot had been set out as dower. The report found that the defendant had cut a small quantity of timber on the five acres excepted in the deed, and a much larger quantity on the nine acres not excepted, and that there was still ample timber for the estovers of the widow. Held, that the defendant was liable to the plaintiff for the timber cut upon the five acres, but not for that cut upon the nine acres, for as to that he was himself the reversioner, and the only injury was to the reversion.</p>

<p> Tender under Ii. L. s. H50. Officer’s fees. Time of tender. Good faith of defendant. </p> <p>1. An officer’s return upon a copy of a writ is a part of such copy, and he may charge for the same by the folio.</p> <p>2. An officer may take possession of personal property which he has previously attached by copy, if necessary, and in that case may charge a reasonable sum for so doing.</p> <p>3. .The plaintiff is under no obligation to furnish the defendant with a statement of his costs, and that he neglects or refuses to do so is no excuse for an insufficient tender.</p> <p>4. In determining whether a tender has been reasonably made under R. L. s. 1450, both the day of the tender and the first day of the term should be excluded.</p> <p>5. In case of a tender for damages by a trespass, the defendant will not be relieved from further costs unless the County Court affirmatively finds that he acted in good faith. It is not enough that no fact appears in the referee’s report inconsistent with that idea.</p>

<p> Complaint cannot be amended like information. </p> <p>1. The complaint of a grand juror cannot he amended in matter of substance in the Appellate Court.</p> <p>2. A complaint alleging that the respondent “became and was” intoxicated is defective in matter of substance and cannot be amended in. the County Court so as to read “was found” intoxicated.</p>

Bill of interpleader. Heard upon the pleadings and master’s report at the September term, 1891. . Rowell, chancellor, decreed that the orator be dismissed with its costs upon payment of the fund into court; that the fund belonged to the defendant, Charles P. Albee, and that he recover his costs of the defendant, Henry C. Lane. The defendant Lane appeals. The orator is a savings bank located in Charlestown in the State of New Hampshire.

<p> Competency of witnesses. Husband and wife. Party in interest. Contract in issue. </p> <p>1. When the wife is a party in interest, though not of record, the husband is not a competent witness.</p> <p>2. The action being for the conversion of certain hay by feeding it out, a person who claimed to own the hay by reason of the fact that it was cut upon her land, and by whose direction the defendant fed it to her stock supposing it to be hers, is a party in interest.</p> <p>3. The plaintiff claimed title under a chattel mortgage. Held, that the contract evidenced by this instrument was collateral to the issue on trial, and that the plaintiff might be a witness in his own behalf notwithstanding that the mortgagor was dead.</p>

<p> Fraudulent agreement not enforceable. Money paid ztnder not recoverable. Right of partner to settle. Wife of co-partner not a witness for or against co-partnership. </p> <p>1. The court will not enforce the performance of a fraudulent agreement for the payment of money, nor will it assist one paying money under such an agreement to recover the amount so paid.</p> <p>2. Where several persons for the purpose of inducing each other to have their cream manufactured into butter at a certain place, mutually agree to pay a certain price per pound for this service, a secret agreement between one of these persons and the company, which is to do the manufacturing, that the cream of that person shall be manufactured for a less price is fraudulent.</p> <p>3. One of the defendants made such an agreement with the plaintiff and subsequently and while the agreement was in force formed a partnership with the other defendant. In settlement of subsequent dealings between the plaintiff and the co-partnership, the first named defendant allowed the plaintiff the amount due him under the secret agreement, thus finding a small balance due from the co-partnership, for which a due bill was given. Held, that the plaintiff might recover according to the settlement, it not appearing that either the defendant firm or that member of the firm who made the settlement were insolvent.</p> <p>4. The wife of a co-partner is disqualified to the same extent .in a suit against the co-partnership that she would be were the suit against her husband alone.</p>

Indictment for intoxication. Heard on demurrer to the indictment at tlie February term, 1891, Tyler, J., presiding. Demurrer overruled. The respondent excepts. ■ The filing of an indictment is the commencement of the prosecution. State v. J. P., 1 Tyler 283; Com. v. Cheney, 6-Mass. 347 ; Com. v. Stone, 3 Gray 453 ; Com. v. Wood, 4 Gray 11-15 ; State v. C. L., 1 Tyler 295; Vauglvn v. Congdon, 56-Yt. 111.

<p> How far stenographic transcript a part of exceptions. Exclusion of unansioered question not error. Assault and battery. Damages. Pecuniary ability. Criminal conviction. Evidence. </p> <p>1. Where the stenographic transcript of the trial is referred to by the exceptions for certain purposes, it is before the Supreme Court only in those particulars.</p> <p>2. Error cannot be predicated upon the exclusion of a question merely ; it must appear what the answer would have been and that its exclusion was erroneous.</p> <p>3. In an action for assault and battery evidence of the pecuniary ability of the defendant is not admissible upon the question of- actual damages.</p> <p>4. In such an action evidence of the relations of the parties at the time of the assault is admissible, but evidence of past controversies is not, although they may have lead up to the affray.</p> <p>5. It was error to permit the plaintiff to show that the defendant entered a complaint against him for intoxication directly after the assault.</p> <p>6. Evidence that the defendent has been criminally prosecuted and paid a fine for the same assault is not admissible upon the question of exemplary damages.</p>

Bill for the construction of a will. Heard upon bill and answer at tlie December term, 1891. Start, chancelor, decreed that the interest of the widow under the will was a life estate. Judith Johnson, the widow, appeals. .

<p>This was an appeal from the award of commissioners for the allowance of claims against the estate of Hugh Gunning. The action was assumpsit for the amount of a promissory note. Pleas, the general issue, statute of limitations and notice under the statute, denying the genuineness of the signature to . the note. Trial by jury at the June term, 1891, Munson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts.</p> <p>The note was dated June 1st, 1886, for the sum of $4550, payable to the plaintiff or order. The evidence of the plaintiff tended to show that from 1859 he had lived with his father upon the home farm in the town of Barnet, and worked upon said farm under an arrangement that he was to receive $100 a year ; that in 1868 his father had already accumulated a considerable sum of money and continued to so accumulate until 1879; that in 1879 his father and mother, there never having been any settlement with him for his work on the farm, deeded the farm to him and a sister, upon condition that they should maintain the father and mother for life ; that at this time the father had accumulated, and had in the house, three $1000 bills and one $500 bill, of which he placed $2500, in one envelope and $1000 in another, saying, that when the plaintiff had performed the conditions of the deed, this money should belong to him ; that the plaintiff’s father died in 1879, his mother in 1889, and his sister in 1886, none of their estates ever having been settled in the Probate Oonrt. The plaintiff’s evidence further tended to show, that he went on under the deed and performed all its conditions, and that he had in 1886 accumulated the sum of $1,000 in addition to the $3,500 which his father had in 1879; that Hugh Gunning, the intestate, was well acquainted with the plaintiff and his family, and knew of these accumulations and that the plaintiff had this sum of money in the house; that in June, 1886, the said Gunning came to the plaintiff’s house in the night time, apparently in great trouble, said that he had fallen into a trap and would have to go to the State’s prison unless he could raise $5,000; that he had §450 and wished to borrow $4,550 from the plaintiff and did not want any one to know; that the plaintiff declined to let him have so large a sum without a witness, and told him to come again and he would see about it, and that he then and there wrote a note for $4,550 which he told Gunning he should want him to sign if he had the money ; that Gunning did come again in about one week with the note; that the plaintiff’s brother and sister were both present when the plaintiff got the money, gave it to Gunning and took the note in question. The evidence of the defendant tended to show that in June, 1886, when said note was given, as claimed by the plaintiff, Gunning-was at the house of one James Craig, in Peacham, and was not away from there long enough to go to the plaintiff’s house at any time during that month ; that Gunning had no occasion for so much money, and that if he had, he could have raised it without calling upon the plaintiff, since he owned $5,000 in United States Government bonds, which were at his disposal; and that the plaintiff did not have any such amount of money to loan Gunning, if he had needed it and called for it.</p> <p>The brother and sister of the plaintiff were improved by him as witnesses. In reference to the testimony of the latter, the exceptions state, “The sister was cross-examined at greatlengthand it was claimed by defendant that her story both upon direct and cross-examination was improbable and unworthy of belief, and it was claimed by the defendant and argued to the jury that the testimony of the plaintiff’s brother and sister as to the giving of the note and delivering of the money, was false and perjured and that said note was a forgery. But no evidence was offered by the defendant, that the witness had made statements out of court different from her statements in court nor was any foundation undertaken to be made for such contradiction in her cross-examination, nor was any evidence introduced to discredit the witness except as testimony was introduced which tended to show that the facts were otherwise than as testified to by her.”</p> <p>The plaintiff offered to show in rebuttal'that his sister bore a good reputation in the comnjunity where she had always lived for truth and veracity. ■ This evidence was excluded by the Court under the plaintiff’s exception.</p> <p>The plaintiff in the opening of his case introduced evidence tending to show that his brother James had been long acquainted with Gunning and was on friendly terms with him, and that James supplied $50 of the money which was loaned Gunning, there in Gunning’s presence. Against the objection and exception of the plaintiff the defendant was allowed to show that Gunning entertained ill feelings towards James from 1891 to the end of Gunning’s life, and was allowed to show by various witnesses against the exception of the plaintiff, that Gunning at various times expressed feelings of hostility toward James, and that he did not treat him in a friendly manner.</p> <p>The defendant was allowed against the exception of the plaintiff to put in the grand list of the town of Barnet for the years 1868 and 1869 and to prove by one Gilfillan that he was a lister in those years, took the list of the plaintiff, and his father and that they did not give in any property but. polls, and claimed to be in debt to the amount of their personal property. The said Gilfillan was further permitted to testify that the plaintiff was present when his father gave in his list and made no dissent from it.</p> <p>The defendant was also permitted against the exception of the plaintiff to show by Geo. P. Blair, the executor named in the defendant’s will, that he went to the house of Gunning at the time he drew the will and that Gunning then gave him general information as to the condition of his estate and property ; and afterwards to introduce a certified copy of the said will.</p> <p>Upon cross-examination of this witness the plaintiff enquired whether he, the plaintiff, claimed before the commissioners that most of his money came from his mother, to which the witness replied, that he did not so claim. Thereupon the plaintiff offered himself in rebuttal to show that he did make this claim before the commissioners.</p> <p>The remaining facts sufficiently appear in the opinion.</p> <p>The evidence as to the reputation of the plaintiff’s sister was properly excluded. State v. Roe, 12 Yt. 93; Paine v. Tilden, 20 Yt. 554 ; Sweet v. Sherman, 21 Yt. 23 ; Mosley v. Ins. Go., 55 Yt. 142; Atmood v. Dearborn, 1 Allen 483; s. c. 79 Am. Dec. 755 ; Wright v. McKee, 37 Yt. 161; State v. Daley, 53 Yt. 442; State v. Emery, 59 Yt. 84; Taylor’s Ev. s. 1476; People v. Gay, 1 Park. Or. Eep. 308.</p> <p>Since the plaintiff himself raised the issue as to the state of feeling between his brother James and the intestate, he could not be allowed to object to evidence upon that point when offered by the defendant. Knight v. Smith, 57 Yt. 529 ; State v. Ward, 61 Yt. 153 ; Palmer v. Coolc, 7 Gray 418; Jones v. McLellan, 76 Me 49; Shailer v. Burnstead, 99 Mass. 120 ; Bartheleny v. People, 2 Hill, 257, note (6); 1 Greenl. Ev. ss. 102, 107 ; State v- Daley, 53 Yt. 442.</p> <p>The will of Gunning was properly admitted in evidence. State v. Hopldns, 50 Yt. 316; Stale v. Daley, 53 Yt. 442; PerIdns v. Blood, 36 Yt. 273 ; Noble v. Sylvester, 42 Yt. 146; Kim-ball v. Ladd, 42 Yt. 747.</p> <p>Doctor Hartshorn might properly testify as an expert in the use of the microscope. Bridgeman v. Gorey's Est., 62 Yt. 1; Bierce v. Stocking, 11 Gray 174; Gossler v. Eagge db Go., 103 Mass. 331; Sweet v. Shumway, 102 Mass. 365 ; Stone v. Hubbard, 7 Cush. 595 ; Quinsagamond, etc. v. Hobbs, 7 Gray 250 ; Gom. v. Sturt&vant, 117 Mass. 122; s. c. 19 Am. Eep. 401 and note.</p> <p>The charge of the Court as to the presumption of innocence was correct. Weston v. Gravlvn, 49 Yt. 507.</p> <p>Also as to the burden of proof in showing a consideration for the note. Small v. Olewl/y, 62 Me. 165 ; Delano v. Bartlett, 6 Cush. 364; Nichols v. Munsel, 115 Mass. 567’; Powers v. Russell, 13 Pick. 69; Burnham v. Allen, 1 Gray 496 ; 1 Dan. Neg. Ins. s. 164.</p> <p>Evidence of the good character of the plaintiff’s sister for truth and veracity should, have been admitted. Mosely v. Ins. Go., 55 Yt. 142.</p> <p>The testimony of Gilfillan was not a sufficient foundation for the admission of the grand lists of 1868 and 1869. Brainard v. Buck, 25 Yt. 573 ; RIersey v. Burton, 23 Yt. 685.</p> <p>The statements of Gunning to Blair when he drew the will and the will itself, were declarations in favor of the intestate and inadmissible. Wright v. Boston, 126 Mass. 161; 2 Best Ev. 626; Smith’s Leading Gas., 392; Rluse v. Preston, 51 Yt. 245; Gates v. Morse, 51 Yt. 222; Grump v. Starke, 23 Ark. 131; Higham v. Ridgway, 10 East 109; State v. JDunean, 6 Ired. N. O. 236.</p> <p>Hartshorn was not an expert in the matter of handwriting, and his opinion in that particular was inadmissible. Johnson v Gasile, 63 Yt. 452; Bridgeman v. Corey’s Est., 62 Yt. l! Bemis v. Railroad, 58 Yt. 636; Wright v. Williams’Est., 47 Yt. 222; State Y.Yfard, 39 Yt. 225.</p> <p>The Court should have instructed the jury as requested upon the presumption of innocence. Law. Pres. Ev. 27; 3 Stark. Ev. 1248 ; 1 Best Ev. 448 ; 1 Greenl. Ev. ss. 33 to 35; Greensborough v. Underhill, 12 Yt. 604; Fi/re Association v. Bank, 54 Yt. 657.</p> <p>The charge of the Court as to the burden of proof was erroneous. Bank of Troy v. Topping, 13 Wend. 557; Kinsman v. Birdsall, 2 E. D. Smith 395 ; Campbell v. McCormac> 90 N. C. 491; Bryne v. Grayson, 15 La. An. 457; Middelbu/ry v. Oase, 6 Yt. 165 ; 1 Best Ev. 426, 589; 2 Greenl. Ev. 172; 3 Phil. Ev., marginal page 169,131 and cases there cited; Sto. Pr. Notes, s. 7 and 181 and note; Rand. Com. Paper, ss. .562, 563, and cases cited; Gerrish v. Bragg, 55 Yt. 329; Arnold v. Sprague, 34 Yt. 402.</p>

<p> Mortgage of wife's real estate by deed absolute. Bond for re-conveyance to husband. Future advances. Possession as notice. Betterments. Amendment. </p> <p>1. A husband and wife conveyed to R. by warranty deed, premises, of which the wife was the sole owner, to secure an indebtedness from the husband to R., and R. thereupon executed to the husband a bond conditioned to re-convey the premises to him upon payment of the indebtedness. Held, that the security would not cover future advances made to the husband alone.</p> <p>2. The buildings having been insured in the name of R., but really for the benefit of the mortgagee, any insurance money must be applied by R. to the payment of the original indebtedness, and not of such further advances.</p> <p>•3. As a part of the original transaction and to secure the same indebtedness a bill of sale was given of certain personal property in which the wife claimed an interest, which was subsequently sold by R. Held, that in the absence of any specific directions the proceeds should be applied by him upon the original indebtedness.</p> <p>4. Subseqirently L., by procurement of the husband, paid R. the amount of his claim, including further advances, and took a conveyance from him of the premises. The husband and wife were still in possession. Held,, that L. acquired no better title than R. had, and that the rights of the wife were not prejudiced by the fact that she requested him to help them, it not appearing that she knew of the future advances.</p> <p>5. Still later L. obtained a decree of foreclosure against the husband alone for the entire amount paid by. him to R. and this the orator bought in to protect itself. Held, that the orator thereby obtained no greater right against the wife than L. had.</p> <p>■6. The buildings upon the premises having become uninhabitable, the orator should be allowed the value of those which it erected with the approval of the wife and for her occupation.</p> <p>7. And this sum may be allowed the orator in a foreclosure suit.</p> <p>8. The orator should be allowed to amend its petition to adapt it to the relief to which it is entitled in accordance with these views.</p>

<p> Insolvency. When conveyance ca/n be recovered, as preference. Contemplation of insol/oency. May recover value of mortgage. Interest. Construction of report. </p> <p>1. In a suit by an assignee in insolvency to recover the value of a payment made within four months, a finding by a referee that a debtor was insolvent at the time of the payment, in the sense that his liabilities exceeded his assests, that the debtor intended a preference, and that the payment was received by the defendant having reasonable cause to believe that the debtor was insolvent in the above sense, necessarily imports the further fact that the defendant had reasonable cause to believe that the payment was made in fraud of the insolvent law, and entitles the plaintiff to a recovery.</p> <p>2. And “contemplation of insolvency” of "that kind is the same thing in this respect as actual insolvency.</p> <p>3. The creditor gave to the defendant a mortgage as a part of the fraudulent preference, and the defendant afterwards and before the bringing of this suit sold the mortgage note for its full face value. Held, that the plaintiffs could recover of the defendant the amount received from the sale of this note, but not the value of the mortgaged premises.</p> <p>4. It not appearing that the plaintiffs made any demand on the defendant before the commencement of suit, interest should be computed from the date of service.</p> <p>5. Held, that the evidence as reported by the referee, supported his findings that the creditor was insolvent, that he made the payment intending a preference, and that the defendant received it having-reasonable cause to believe that the creditor was insolvent or in contemplation of insolvency.</p>

<p>Action to recover for the support of a pauper. Heard at tlie December term, 1889, Orange county, Tyler, J., presiding, upon an agreed statement of facts. Judgment for tlie defendant. Tlie plaintiff excepts.</p> <p>Previous to the act of 1886, the adjudication upon the order of removal would have conclusively fixed upon the defendant the liability to support this pauper. langrove v. Pawlet, 20 Vt. 309; Chester v. Wheeloch, 28 Vt. 554; Windham v. Chester, 45 Vt. 459; Dorset v. Manchester, 3 Vt. 370; Barre v. Morris-town., 4 Vt. 574; Rupert v. Sandgate, 10 Vt. 278; Hartland v. Williamstown, 1 Ailcen, 241; Hale v. Turner, 29 Vt. 350 ; Poultney v. Sandgate, 85 Yt. 146 ; Odbot v. Washington, 41 Yt. 168; Stowe v. Brookfield, 26 Yt. 524.</p> <p>* That act in terms provides that it shall not effect pending suits. No. 42, Acts 1886, s.'14.</p> <p>The pauper did reside in the plaintiff town and did not reside in the defendant town. Hence the former is and the latter is not liable for her support. New Ilmen v. Middlebiory, 63 Yt. 399 ; No. 42, Acts of 1886 ; Worcester v. Past Montpelier, 61 Yt. 139 ; Chittenden v. Barnard, 61 Yt. 145.</p>

Bill for an injunction to restrain tlie cutting of timber. Heard at tlie September term, 1890, Rutland county, upon the demurrer embodied in the defendant’s answer. Taft, chancellor, dismissed the bill. The orator appeals. If the orator is entitled to a jury trial upon the question of title the Court of Chancery can submit that issue. 2 Dan. Ch., 1080; 1 Sto. Eq. Jur., s. 72; Garsed v. Beall, 92 H. S. 684; Fitton v. Assurance Go., 23 Fed.

Bill to restrain the cutting of timber. Heard upon bill and answer at the March term, 1891, Essex county, Boss, chancellor, dismissed the bill pro forma, and the orators appealed. The facts in this case were the same in principle as those in Griffith y. HUlia/rd, supra. Equity will grant this injunction to prevent irreparable injury. Erha/rdt v. Boaro, 113 U. S. 538-; U. S. v. Parrott et al, 1 McAllister (IT.

Action for tbe benefit of tbe widow and next of kin for tbe wrongful act of tbe defendant resulting in tbe deatli of tbe plaintiff’s intestate. Heard at tbe December term, 1890, Windsor county, upon demurrer to tbe plaintiff’s replication to tbe defendant’s plea in bar. Tbe demurrer was pro forma overruled, and tbe defendant excepted.