Volume 65 — Vermont Reports

Indictment for larceny of cattle. Trial by jury at the December term, 1891, Taft, J. presiding. Verdict, guilty. Exceptions by the respondent. The case appears in the opinion. The respondent should have been permitted to show that Potter had been arrested for stealing these same cattle. Tufts v. Town of Chester,62 Vt. 356; Randallsc Preston, 52 Vt. 193 ; Beckley v. Jarvis, 55 Vt. 348.

'Trover for a car load of clapboards. Plea, the general issue. Trial by jury at the May term, 1891, Ross, Ch. J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The opinion states the case. The defendant offered to show that the plaintiff was notified of the re-sale and assented to it. He was entitled to go to the jury upon this question. Hawes v. Watson, 2 B. & C. 170; Harnansr.

Assumpsit for the recovery of certain illegal freight charges. Pleas, the general issue, statute of limitations, and settlement. Trial by court at the May term, 1890, Caledonia county, Tyler, J., presiding. Judgment for the plaintiff. The defendant excepts. ■ The plaintiff brought suit as the surviving partner of the firm of William Wilder & Son. The illegal charges sued for covered the period from May 1, 1883, to May x, 1884.

Statutes are never to be construed as retrospective unless made so by their express terms; especially penal statutes. Sedg. Cont. Law, p. 279; Berley v. Ramparker, 5 Due 181; Richardson v. Cook, 37 Vt. 599; Giddings v. Tur-geon, 58 Vt. 106; Com. v. Horner, (Mass.) 26 N. E. Rep. 872 ; R. R. Co. v. Cilley, 44 N. H.578; Jackman v. Garland,'64 Me. 133; Giles v. Giles, 22 Minn. 348; Vreeland v. Brumhall, 3 N. J. L. I.; City v. Hill, 29 N..

Assumpsit. Pleas, general issue and statute of limitations. Trial by jury at the December term, 1891, Caledonia county, Start, J., presiding. At the close of the evidence the court directed a verdict for the defendant. Exceptions by the plaintiff. The opinion states the case. The court properly directed a verdict if the evidence did not fairly tend to support the plaintiff’s claim. A mere scintilla of proof is not enough.

Information for keeping intoxicating liquor with intent to sell. Plea, not guilty. Trial by jury at the March term, Washington county, 1892,' Thompson, J., presiding. Verdict, guilty. The respondent excepts. The respondent excepted first, to the charge of the court in relation to the failure of the respondent to testify.

Bill in chancery. Heard upon general demurrer at the May term, 1891, Windsor county. Taft, chancellor, sustained the demurrer fro forma. The note being from the husband to his wife, was void at law. Sweat v. Hall, 8 Vt. 187 ; Ellsworth v. Hof kins, 58 Vt. 705. . Still it represents an enforceable. equitable right.

Petition of foreclosure. Heard upon bill, answer,and the report of a special master at the-March term, 1892, Washington county. Thompson, chancellor, decreed for the orator as to the entire premises claimed by him.. The de- ■ fendants appeal. The-opinion states the case. The last description will prevail. Wilder v. Davenport, 58 Vt. 642; Lippett v. Kelley, 46 Vt. 516; 2 Wash. Real Prop. 684. The description by metes and bounds must govern.

Action on the case. Trial by jury at the June term, 1892, Taft, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts. The case appears in the head notes and opinion. The déed -had no tendency to support the -declaration. Wright v. Geer, 6 Vt. 151; Vail.v. Strong, 10 Vt. 457? Mann v. Birchard, 40 Vt. 326.

General assumpsit. Heard at the December term, 1890, Start, J., presiding, upon the report of a i-eferee. Judgment fro forma for the plaintiff. The defendant excepts. The opinion states the case. There was no lien. See terms of act creating Court of Alabama Claims and R. S. U. S. §. 3,477.

Assumpsit by the plaintiff as collector of taxes for the town of Hyde Park, to recover the amount of a tax assessed against the defendant. Plea, the general issue. Trial by jury, Thompson, J., presiding. Verdict and judgment for the defendant. Both parties except. The case appears in. the opinion. Debts due a corporation are as much taxable as those due a natural person. Catlin v. Hull, 21 Vt. 152.

Petition for divorce for refusal to support. Heard at the June term, 1889, Rowell, J., presiding. The court found the facts, held that those facts did not disclose such a refusal to support as entitled the petitioner to a divorce under the statute, and dismissed the bill. The petitioner excepts. The opinion states the case. - The refusal to support was attended with such circumstances as brings the case within the statute.

Petitition by the wife for her support under the provisions of No.. 33, Acts 1890.' Heard'at the December term, 1892, Start, J., presiding. It was ordered that the petitionee be restrained from interfering with the personal liberty of the petitioner, and that he pay her the sum of ten dollars per month until further order. The petitionee excepts. The parties were married in 1855, and lived together until 1883. At that time the petitioner had become blind and deaf.

This was a petition for the appointment of commissioners to lay out a highway, and was heard at the June term, 1891, Munson, J., presiding, upon the defendant’s motion to dismiss. This motion was based upon two grounds. 1. Because the selectmen had not, at the time of the bringing of the petition, refused .and neglected to lay said highway. 2.

Assumpsit. Plea, the general issue. Trial by court at the March term, 1892, Ross, Ch. J., presiding. Judgment for the defendant. The plaintiff excepts. The real question was as to the right of the attorney who had originally brought the suit to assert an attorney’s lien against the defendant. March n, 1889, the defendant entered into a written contract with the plaintiff to board what of its paupers it might elect to send there for $1.50 per week.

Case for the negligence of the defendant, resulting in the death of the plaintiff’s intestate. Plea, the general issue. Trial by jury at the March term, 1892, Ross, Ch. J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. It was conceded that the plaintiff’s intestate was killed by being struck by a locomotive under the control of the defendant. The accident occurred at a crossing in the village of Rutland.

Debt on bond. Trial by court at the September term, 1892, Start, J., presiding. Judgment for the plaintiffs. The defendants except. The opinion states,the case. The sureties became liable to pay any judgment against the defendant “as administrator.” They cannot he held for a personal judgment. St: Allans Bank v. Dillon, 30 Vt. 122; Freeman Judg. § 156; 2 Smith’s Lead. Cas. 589; 2 Phil. Ev., pp. 11, 12. The liability of the sureties was that of a receiptor.

Assumpsit. Pleas, the general issue, payment and set-off. Heard on the report of a referee at the September term, 1892, Start, J., presiding. Judgment for the plaintiff. The defendant excepts. The case appears in the opinion. The plaintiffs having permitted Osborn to act for them in purchasing materials, were bound by his contract in this instance.

This was a petition for partition, and was tried by court •at the April term, 1892, Munson, J., presiding. Upon the the facts found the court gave judgment -pro forma that the petition be dismissed. The petitioner excepts. The questions decided sufficiently appear in the opinion. The judgment of partition in favor of the defendant could not bind the petitioner, who was then a mortgagee and not a party to the judgment.

Case for the negligence of the defendant. Heard upon the report of a referee at the September term, 1892, Thompson, J., presiding. Judgment for the plaintiff. The defendant excepts. The plaintiff and defendant owned and occupied adjoining pastures. . The colts of the plaintiff escaped from his pasture into the pasture of the defendant over a portion of the division line fence, which it was the duty of the defendant to maintain.

<p>Appeal from a decree of the probate court for the District of Franklin. Heard upon an agreed statement of facts at the September term, 1892, Start, J., presiding. The decree of the probate court was affirmed pro forma. The appellants except.</p> <p>The testate devised specifically certain real estate. Of this the executors took possession, and collected the rents for one year from the death of the testator, when they turned it over to the devisees. There was sufficient personal estate without these rents to pay the debts and expenses of settlement. The question was whether these rents for the year belonged to the devisees or should be accounted for as a part of the estate. The probate court decreed that they belonged to the estate, and from this decree the devisees appealed.</p> <p>A devise of real estate vests the property in the devisee immediately upon the death of the testator, subject only to the lien of the administrator or executor for the payment of debts and charges. Hibbard v. Heart, 3 Vt. 207 ; Hyde v. Barney, 17 Vt. 280; Probate Court v. Sargent & Sargent, 37 Vt. 16; Austin v. Bailey, 37 Vt. 219; Casey v. Casey, 55 Vt. 518.</p> <p>A specific legacy carries with it interest, income, and earnings from the testator’s death, unless the contrary is specified. Schoul. Exrs. and Admrs., §§ 212, 511; Maxwell v. Wettcnhall, 2 P. Williams 26; Pearson v. Pearson ct al., 1 Sch. and Lef. 2; Isenhart et al., v. Brown et al., Exrs., 2 Ed. Ch. 340; Sullivan and Wife v. Winthroj) ct al., 1 Sumner 1; Harrell v. Davenport et al., 5 Jones Eq. 4; Curtis and Wifex. Potter et al., 1 Houst. 382; Plawldns, Admr.,v. Kimball, 57 Ind. 42; Batkamley v. Sherson, L. R., 20 Eq. 304; Lucy v. Lucy, 55 N. H. 9; Loring v. Woodward, 41 N. H. 391; Eng. and Am. Enc. p. 150 and notes.</p> <p>The rents for one year from the testator’s death belonged to the executors. Dunbar v. Dunbar, 3 Vt. 472.</p>

Book account. Heard upon the report of auditors at the September term, 1892,Thompson, J., presiding. Judgment for the plaintiffs. The defendants except. The defendants were the executors of Catharine Fosters will, and the plaintiffs sued to recover for services rendered in establishing that will. George A. Ballard was the attorney for the defendants in the probate court.

<p> 'Judgment against absent defendant. Audita querela. </p> <p>If the defendant in a justice suit is without the State at the time of the service of the writ, -and continues absent until after the return day, having no tro tice of the suit, a judgment taken against him upon the return day by default may be vacated by audita qtterela.</p>

<p> Note imports consideration. Tact that payee educated and payor illiterate does not alter rule. Finding of master not warranted. Interest m hook account. </p> <p>1. The fact that one of two persons who have business dealings cannot read and write, being otherwise of ordinary memory and judgment, while the other is a lawyer, who promises to be fair and keep accurate accounts of their transactions, does not establish a trust relation between the two, so as to cast upon the latter the burden of proving a consideration for a promissory note given him by the former in the course of such dealings.</p> <p>2. In a hearing before a special master, the weight to be given such a note as evidence is entirely for the master, and his finding as to the consideration is conclusive.</p> <p>3. The intestate and defendant had dealings commencing in 1863, in the course of which the intestate advanced the defendant certain sums of money, which were settled for in 1872 by the giving of the defendant’s promissory notes. The master found that these notes included $200 of usury, and reported that the only evidence on which he based this finding was the testimony of two witnesses, to the effect that previous to 1872 the intestate had told them that the defendant was paying him ten per cent, the fact that banks at that time usually took eight per cent, and that “the kind of transactions between these parties would indicate some consideration other than the mere legal rate, and less than the ordinary rate.” Held, that this evidence did not warrant the finding of the master that usury was included in the notes, although it might tend to show that usury was paid.</p> <p>4. The general rule that in book account interest is chargeable only on yearly balances may be varied by special agreement.</p>

<p> Evidence. Exception to question merely. Tampering with witness. Slander. Privilege. Practice. Petition for new trial. Affidavit of juror. </p> <p>i; The'action being slander for' calling the plaintiff a whore, the evidence of a third person that the defendant had said to him that he had applied that epithet to the plaintiff is admissible.</p> <p>2. An answer is not rendered inadmissible by the fact that it is not responsive to the question.</p> <p>3. It may be shovyn that a party has offered to pay a witness a sum of money if the witness could testify in his favor.</p> <p>4. Also that he has attempted to prevent the attendance of one who is present as a material witness upon the other side.</p> <p>5. The trial court may, in its discretion, refuse to permit the defendant, upon cross-examination of a witness improved by the plaintiff in the opening, to ask a question not properly growing out of the direct examination, but which is legitimate evidence in defence, and may compel the defendant to postpone such inquiry until the putting in of his own case.</p> <p>6. Evidence that the plaintiff’s husband had made the same charge against her is not admissible, it not appearing that it was before the alleged speaking bv the defendant.</p> <p>An exception will not lie to the exclusion of a question merely, although a proper one. There must also be an offer, stating what the answer will be if the question is allowed.</p> <p>8. The defendant having attacked the reputation of the plaintiff for chastity at the time of the speaking of the slanderous words, she may sustain her reputation during the same period in rebuttal.</p> <p>9. The words were not privileged because spoken to one who had formerly been pastor of the church of which both the plaintiff and defendant were members, and in answer to his inquiries.</p> <p>10. Upon a petition for a new trial for the alleged cause that the jury used an improper method of arriving at the amount of the damages, the affidavit of a juror cannot be used to impeach the verdict.</p> <p>11. Held, That the evidence which was legally admissible did not support the petition, and that the same should be dismissed.</p>

Assumpsit upon an award. Plea, the general issue with notice, of special matter. Trial by jury at the February term, 1892, Orleans county, Start, J., presiding. Verdict and judgment for the plaintiffs. The defendants except..

<p>Bill m equity. Heard at the March term, 1892, Washington county, upon the pleadings and a master’s report. Thompson, Chancellor, dismissed the bill -pro forma with costs. The orators appeal.</p> <p>The purpose of the bill was to charge the estate of Harriet Pinney with the payment of certain funds, which it was alleged that she held in her lifetime as trustee for the oratrix, having derived the same from the estate of her former husband, Addison P. Mears.</p> <p>The oratrix, Alma E. Huntley, and the defendant, Ellen M. Dutton, were the daughters of the said Harriet Pinney, of whose estate the defendant, Andrew E. Denny, was special administrator and executor. Harriet Pinney was the widow of Addison P. Mears, who deceased in 1849, leaving the said Harriet, his widow, two daughters, the said Alma E. Denny and Ellen M. Dutton, and a son, Hiram A., since deceased.</p> <p>Addison P. .Méars left a will by which he bequeathed to his aforesaid son, - Hiram A., $140. The .residue of. his property was bequeathed to his wife, the • said Harriet, as long as she remained his widow, and- upon her- marriage, to his two daughters, Alma E. and Ellen M., in equal parts. The said Harriet was nominated as his sole executrix.</p> <p>' This will was duly probated and the said Harriet duly qualified as executrix, and took possession of the estate, which consisted- entirely of personal property. Addison Mears died in August, 1849, and on November 24 the said Harriet presented to -the probate court for the district of Chittenden, within which her husband had resided, and within which she was then residing, her administration account, which was allowed by the court. By that' account it was found that there remained in her hands of the estate of her former husband, the sum of $1,120.91. It did not appear from the máster’s report whether in the settlement of this account any charge was made for the'support of herself and family up to that time. At the time of the settlement of this account, Alma E. was three years of age, and Ellen M. seven years of age. It did not appear what the age of the son was, save that he was a minor. No guardian was appointed to any of these children. . .</p> <p>In September, 1856, the said Harriet married one John Nesbit, and began living with him as his wife in the town of Northfield, without the district of Chittenden.</p> <p>March 23, 1857, upon the application of the said Harriet, the probate court for the district of Chittenden appointed John Nesbit guardian of Alma E. and Ellen M., being at that time cognizant of the fact that the wards did not reside within the district of Chittenden.</p> <p>April 17; 1857, the said Harriet presented to the probate -court another administration account of the estate of Addison P. Mears. In this account-she charged herself with the $1,120.91 found in her.hands at the time of the settlement of her former account, November 24, 1849, and credited herself with the legacy to her son, and with certain other items proper to be allowed, so'that the balance due from her to the estate was $856.91. This she disposed of by crediting herself with $656.91 for the care and support of the said Alma E. and Ellen M., and with $100 paid to each of them. This account was allowed by the probate court, upon due notice.</p> <p>It appeared that from the time of the allowance of her first account in 1849, down to the time of the allowance of her second account in 1857, the said Harriet had invested the money belonging to the estate of her former husband in certain real estate, so that the funds of that estate were actually so invested at the time of the settlement of her second account.</p> <p>The said Harriet at the time of the settlement of her account, April 17, 1857, paid over to John Nesbit, as guardian of her two daughters, the said sum of $200.</p> <p>The said Harriet and John Nesbit continued to live together as husband and wife until the year 1867, when they agreed to separate, and had a settlement, by the terms of which John Nesbit restored to her the $200 which she had formerly paid him as guardian of her two daughters. They subsequently were divorced, and she married one Joseph Pinney, whom she survived.</p> <p>John Nesbit never accounted to either Alma E. or Ellen M. for the $200 received by him as their guardian, nor for any portion of the same; he received it from the said Harriet when he was appointed guardian, and paid it back to her when he separated from her, without consulting either of his said wards.</p> <p>The said Harriet paid her daughter Ellen her $100, but never paid Alma anything whatever. Until she was twenty-one years old the said Alma lived with the said Harriet and was supported by her, rendering such assistance as a reasonably industrious girl could from the time she became old enough to work.</p> <p>The statutes in force from 1849 to I8S7 provided that the probate court might make an allowance for the support of the widow and minor children. Gen. St., chap. 49, § 29; Gen. St., chap. 51, § 1.</p> <p>Nor was it necessary that the amount of this allowance should be determined in advance. Heirs of Sawyer v. Sawyer, 28 Vt. 245.</p> <p>The probate court having jurisdiction of the subject-matter and the parties in the settlement of April 17, 1857, its judgment in that respect is conclusive upon all those interested. Gen. St., chap. 49, § 29; Gen. St., chap. 51, § 1; R. L. §§ 2,109, 2ji:£I ! Heirs of Sawyer v. Sawyer, 28 Vt. 245 Leach v. Estate of Leach, 51 Vt. 440; McClosky et ux. v. Gleason, 56 Vt. 264; Leach v. Peabody et al., 58 Vt. 485 ; 1 Dan. Ch., 662-664; Cotlard v. Crane, Brayton 18; Robinson v. Admr. of Robinson, 3 Vt. 283; Rix, Admr., v. Heirs of Smith, 8 Vt. 365 ; Probate Court v. Merriam, 8 Vt. 234; Sjoarhawk et al. v. Admr. of Buel et al., 9 Vt. 41; Probate Court v. Vanduzer et al., 13 Vt. 135; Gid-dings et al. v. Smith et al., 15 Vt. 344; Adams v. Adams, 22 Vt. 50; Lawrence v. Englesby, 24 Vt. 42 ; Merriam v.-Hemmenway, 26 Vt. 565 ; Richardson, Admr., v. Estate of Merrill, 32 Vt. 27; Boy den v. Ward, Admr., 38 Vt. 628; Lenehan et ux. v. Sfaitlding et al., 57 Vt. 115 ; Noyes, Admr., v. Phillips, 57 Vt. 229; Sowles v. £>uinn, 61 Vt. 354.</p>

<p>This was a petition for an appeal from the judgment of a justice of the peace. Trial by court at the March term, 1892, Washington county, Thompson, J., presiding. The court allowed the appeal and the petitionee excépted. ■ The opinion states the case.</p> <p>The petitioner was deprived of its day in court by the negligence of its town clerk, and not by fraud, accident or mistake. Babcock v. Brown, 25 Vt. 550; Davison v. Heffron, 31 Vt. 687.</p> <p>The town clerk made a mistake, and whether such a mistake as entitled the petitioner to relief, rested in the discretion of the county court, whose decision is final. Mosseaux v. Brigham, 19 Vt. 457 ; Brown v. Irwin, 21 Vt. 68 ; Burton v. Barlow, 55 Vt. 434; Lilley v. Lilley, 56 Vt. 714; Munger v. Verier, 59 Vt. 386 ; Insurance Co. v. Reynolds, 52 Vt. 405 ; Down v. Reed, 32 Vt. 787 ; Kimball v. Kel-ton, 54 Vt. 177.</p>

<p> Common nuisance. Former acquittal of keeping the same liquor. </p> <p>Upon trial for maintaining a common nuisance by keeping intoxicating liquor for sale in a place of public resort, evidence that the respondent has been previously acquitted of keeping the same liquor for sale at the same time is admissible.</p>

<p>Bill for specific performance. Heard upon the pleadings and a master’s report at the March term, Washington county, 1892. Thompson, Chancellor, decreed that the defendants convey the real estate to the oratrix, and that she recover her costs. The defendants appeal. The opinion states the case.</p> <p>The writers of the letters were not competent witnesses. Davis, Admr., v. Windsor Savings Bank, 48 Vt. 532 > Merrill v. Penny, 43 Vt. 606; Hollister v. Young, 42 Vt. 403.</p> <p>The oratrix contracted to buy the real estate of the intestate, and paid for it. She is entitled to recover the purchase price and nothing more. Welch v. Darling, 59 Vt. 136.</p> <p>There was a part performance, which takes the case out of the statute of frauds. Griffith v. Abbott, 58 Vt. 356; Eaton v. Whitaker, 18 Conn. 222-230 ; Clark v. Higgins, 7 Conn. 342 ; Marffiiill v. yanes, 1 Swanton 173 ; Orr v. Clark, 62 Vt. 136-146; Brown Fr. 389; Pain v. Morgan, 10 Atl. Rep. 663 ; Ford v. Hzdl, (Neb.) 48 N. W. Rep. 271 ; Putnam v. Franklin, 83 Mich. 628-647, N. W. Rep. 687 ; Simmons’ Appeal, 140 Pa. 567 ; 21 Atl. Rep. 402; Dunbar v. Vile, 123 Ind. 68.</p> <p>The creditors having stood by while the oratrix performed on her part cannot now object. Kelsey v. Kelly, 63 Vt. 41. Read from page 50 to 52.</p>

<p> Promissory note. Joint and several note. Surety may show his relation. Endorsement as evidence. Communication to attorney -privileged. Omission to produce evidence. </p> <p>1. A promissory note written “I promise to pay,” and signed by two persons, is a joint and several note.</p> <p>2. If the payee of such note knows, at the time the same is given, that one of the signers is a surety for the other, that fact may be shown by the surety in a suit on the note against him by the payee.</p> <p>3. General assumpsit will not lie against a surety.</p> <p>4. The note bore this endorsement: “July, 1884. Received 50 dollars to apply on the within note, of Charles Templeton.” The money to make this payment was handed to the plaintiff by one W, and the question was whether it was furnished by Charles Templeton, who was the defendant. Held, that the endorsement, which was in the handwriting of the plaintiff, was improperly allowed to go to the jury, for it contained the recital of a fact of which the plaintiff had no knowledge.</p> <p>5. BefoM bringing this suit the plaintiff consulted S, an attorney, about the collection of this note, and showed him the note. It was proposed to prove by S on this trial that the endorsement did not then contain the words “of Charles Templeton.” Held, that his information in that respect was a privileged communication.</p> <p>6. The fact that the defendant omits to ask a question of his witness does not help the plaintiff to make out a j>rima facie case.</p>

<p>Case for the diversion of a water-course by the defendant, whereby the plaintiff’s quarry became flooded. Plea, the general issue. Trial by jury at the September term, 1891, Rutland county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff brought suit as the receiver of the Dorset Marble Company. His evidence tended to prove that the defendant had, by the construction of its railroad embankment, diverted an ancient water-course from its accustomed channel into his quarry, and had also collected and discharged surface water into said quarry. The railroad of the defendant at the point complained of was constructed in 1884 along a steep hillside. At one point there had been for many years a water-course which drained at certain seasons of the year a considerable territory, but which during a considerable portion of the year was entirely dry. /From the point where this water-course crossed the line of the defendant’s railroad, the land gradually descended towards the quarry of the plaintiff. In constructing its railroad the defendant made no provision for the passage of the water running in this water-course underneath its track, and the complaint of the plaintiff was that the defendant had thereby diverted this water-course, and discharged it, together with the surface water which was collected by this embankment, into his quarry.</p> <p>The land at the point where the water-course crossed the line of the defendant’s railroad belonged to the Vermont Marble Company, as did the land between that point and the plaintiff’s quarry. Upon this land of the Vermont Marble Company, and in close proximity to the plaintiff’s quarry, were .two abandoned quarries owned by said Vermont Marble Company, and these abandoned quarries were partially filled with water at all times. The effect of the defendant’s embankment as constructed was to deflect whatever water ran in the water-course and whatever surface water ran down the side hill, and to conduct it along the side and into the-first of these abandoned quarries. When this quarry became filled with water the water would overflow into the second abandoned quarry, which lay adjacent to the quarry of the plaintiff. This quarry was separated from the plaintiff’s quarry by what appeared to be a solid wall of rock, and this dividing wall rose to such a height upon the surface that the water would flow over the track of the defendant before passing into the quarry of the-plaintiff. From the depression around the first abandoned quarry a culvert was constructed underneath the defendant’s track. The claim of the defendant was that this culvert was sufficient to carry off the water which was conducted as above described into the first abandoned quarry, and there was no question but what it had proved sufficient from 1884, when the embankment was constructed, down to the time of the injury.</p> <p>In January, 1888, occurred a freshet which the witnesses described as the most serious ever known in that locality. In the course of this freshet large quantities of water ran down the hillside, were turned by the defendant’s embankment, and discharged into the first abandoned quarry. This quarry was filled up by the unusual flood of water, and thereupon the water overflowed into the second abandoned quarry, rising in that quarry to a point considerably above that at which it ordinarily stood. From this quarry it burst through the dividing wall which separated it from the plaintiff’s quarry, whereby the damage complained of was done.</p> <p>The evidence of the defendant tended to show that the ancestors of the plaintiff, at some time previous to the construction of the defendant’s railroad, had, in the excavation of the plaintiff’s quarry, encroached some eight or ten feet upon the lands of the Vermont Marble Company, and thereby so weakened the dividing wall that it had burst through under the pressure of the water. The defendant claimed that if the ancestors of the plaintiff had trespassed upon the lands of the Vermont Marble Company, and in so doing so weakened the dividing wall as to occasion the injury in question, the plaintiff could not recover, and requested the court to so instruct the jury. This the court declined to do, and instructed the jury that in determining the issue involved it was immaterial whether the plaintiff’s ancestors had or had not worked over onto the land of the Vermont Marble Company, and that if they had it would be no defence to this action, to which the defendant excepted.</p> <p>A plaintiff guilty of contributory neglect cannot recover, and a trespass upon the lands of a third person may constitute such neglect. Trow v. Central Vt. R. R. Co., 24 Vt. 487; Jackson v. R. & B. 'R. R. Co., 25 Vt. 150; Bemis v. Conn. & Pass. Rivers R. R. Co., 42 Vt. 375-</p> <p>The encroachment of the plaintiff’s quarry was not obvious to the defendant, therefore it was under no obligation to guard against it; and but for this encroachment -the injury could not have occurred. Shear. & Red'. Neg., § 99, p. 163.</p> <p>The plaintiff’s ancestors were not bound to anticipate the building of the defendant’s railroad.</p>

<p>Debt on two recognizances. Pleas, the general issue and offset. Trial by jury at the September term, 1891, Franklin county, Tyler, J., presiding. The court directed a verdict, for the defendant. The plaintiff excepts.</p> <p>■ It appeared that one A. G. Safford, of Washington, D. C., brought two suits in March and April, 1887, against the plaintiff, a corporation located and doing business under the National Banking Act at Plattsburg, in the State of New York, said suits being returnable to the Franklin county court in the State of Vermont. In each of these suits the defendant, Post, was recognized for costs. The only service obtained upon the plaintiff bank in those suits was by trusteeing a debt due the plaintiff from a resident in Vermont, and the cases were each dismissed for want of jurisdiction. The costs were taxed in one case at $7.43 and in the other at $37.03, and the plaintiff sought to recover these amounts with interest in this suit.</p> <p>The defendant offered the deposition of the said Safford, taken at Washington on August 29, 1890, to be used at the September term, 1890, of the Franklin county court, which convened that year on the 9th day of' September. The plaintiff had been notified of the taking of said deposition on the 23d day of August, 1890. The plaintiff did not appear at the taking of the deposition, and objected to its introduction upon the trial, for the reason that it was taken ex $arte, and within fifteen days before the first day of the term at which it was to be used. The court overruled the objection, and as a matter of law admitted the deposition, to which the plaintiff excepted.</p> <p>From the deposition it appeared that Safford had been originally employed by the plaintiff bank in connection with certain suits pending in the United States Circuit Court for the District of Vermont, and had rendered services to a considerable amount in such suits. On account of services so rendered he had received various sums by way of payment from the plaintiff bank, leaving a balance his due of $281.19. The bank having refused to pay this sum for the alleged reason that his charges were exorbitant, he brought the suits in 1887, previously referred to, to recover this balance.</p> <p>At the time these suits were brought he was indebted to one Mooney in the sum of $200, and for the purpose of securing the payment of this amount to Mooney, and for the further purpose of securing the defendant, Post, anjr sum which might be his due, he made an assignment of his claim against the plaintiff bank to Nathan N. Post, trustee, being the defendant, and notified the plaintiff bank of this fact. Safford testified that the sum of $281.19 was actually his due, and there was no evidence in this case to contradict that testimony.</p> <p>The defendant, Post, testified that the original assignment from Safford to himself was by letter, but that subsequently he saw Safford, and the terms of the assignment were then more fully stated and perfected; that after this he saw the president of the plaintiff bank, and told him that the claim of Safford against the bank had been assigned to him, the defendant, and the president of the plaintiff bank thereupon promised to pay the defendant whatever sum might be due from the bank to Safford, but denied that there was as much as $281.19 so due.</p> <p>The defendant testified that subsequent to the written assignment it was arranged between himself and Stafford that he should be first paid out of the proceeds of the assignment for whatever cash he might expend about said suits, and for his Services in the.same, and that the balance, if any, was to be paid to Mooney; and that he afterwards saw Mooney, who assented to the terms.of this arrangement.</p> <p>The plaintiff insisted that so long as the original assignment was in writing its terms could not be varied by parol-testimony, and objected and excepted to the admission of the evidence given by the defendant upon that point as above. At the close of the entire testimony the defendant moved for a verdict in his favor in the sum of $281.19. The plaintiff moved the court, to direct a verdict in its favor for the amount of the two recognizances. The court overruled the motion of the plaintiff, and directed a verdict in favor of the defendant in accordance with his motion, to which the plaintiff excepted.</p> <p>The defendant claimed that inasmuch as the court had no jurisdiction of the plaintiff in the original suits in which he became recognized, such recognizances were void, and the court so held in directing a verdict for the defendant.</p> <p>The defendant was liable on his recognizance, notwithstanding that the court in the original suit had no jurisdiction of the defendant. R. L. §§ 47, 1,170; Colony v. Maeck, 8 Vt. 114.</p> <p>The defendant could not properly offset the claim of Saf-ford which had been assigned to him in this' suit. Safford v. Bank, 61 Vt. 373 ; Braynard v. Fisher, 6 Pick. 355 ; Clark v. Leach, 10 Mass. 51; Adams v. Bliss, 16 Vt. 39; Phel-ps v. Bulkley, 20 Vt. 17 ; Leavenworth v. Lafham, 5 Vt. 204.-</p> <p>The defendant could not offset the claim, for the reason that he was not the owner of the entire claim. White v. Boolay, 7 B. Mon. (Ky.) 546; Carter v. Nichols, 58 Vt. 554; Gibson v. Cooke, 20 Pick. 15; Robins v. -Bacon, 3 Greenl. 346 ; Mandevillev. Welch, 5 Wheat 277 ; Insurance Co. v. Horner, 9 Met. 39; Corsy v. 'Jones, 15 Gray 543.</p> <p>Reasonable notice had been given the plaintiff of the taking of Safford’s deposition. It was not, therefore, ex Jarte. Hough v. Lawrence, 5 Vt. 299; Darling v. Woodward, 54 Vt. 101.</p> <p>The recognizances in the original suit were void, and the defendant is not liable upon the same., 'State Treasurer v. Wells, 27 Vt. 276; Stale Treasurer v. Danforth, Brayton 140; Stevens v. Admr. of Stevens, 30 Vt. 213.</p> <p>The plaintiff bank having promised the defendant to pay him the amount of Safford’s claim, the same can be plead in offset in this suit. Simmonds v. Pierce, 51 Vt. 467 ; McPeck v. Moore, 51 Vt. 269; Nelson v. Wells et al., 51 Vt. 52; Lamoille Valley R. R. Co. v. Marsh, 49 Vt. 37.</p>

<p>Assumpsit. Trial by jury at the December term, 1892, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant, Agnes Ida Caswell, excepts.</p> <p>The action was brought to recover the amount of four promissory notes signed by the defendants, J. C. Caswell and Agnes Ida Caswell. The defendant, Agnes Ida, who alone defended the suit, filed a plea in bar setting forth that the notes were signed by her as surety for J. C. Caswell, who was her husband. To this the plaintiff replied that the said J. C. Caswell was confined in jail upon a certified execution in its favor, and that these notes were given by the defendant, -Agnes Ida, as an original undertaking to procure his release. The defendant, Agnes Ida, by her rejoinder admitted that the notes in suit were given for the purpose set forth in the plaintiff’s replication, but reiterated that she signed them only as surety, and this rejoinder the plaintiff traversed.</p> <p>Upon the trial the plaintiff put in evidence the notes, which were in the ordinary form of joint and several notes, payable to the order of the plaintiff, and signed by the two defendants, the name of the husband standing first.</p> <p>Thereupon the defendant, Agnes Ida, offered to show by parol testimony that she in fact signed the notes as suretj’-for her husband. This evidence the court rejected, under the exception of the defendant, and, there being no other defence, directed a verdict for the plaintiff.</p> <p>After verdict and before judgment the defendant, Agnes Ida, moved for judgment notwithstanding the verdict, for that it appeared “by the allegations, admissions, and concessions in and by the pleadings in the case that said notes were given for the debt of J. C. Caswell,” and that she was merely surety thereon. This motion the court overruled, and the defendant excepted.</p> <p>The parol evidence was admissible to show that Mrs. Cas-well signed as surety. Lathrop v. Wilson, 30 Vt. 604; Keith v. Goodwin, 31 Vt. 268; Adams v. Flanagan, 36 Vt. 400.</p> <p>The defendant should have judgment in the supreme court without remitting the case to the county court. Porter v. Smith, 20 Vt. 344; Chandler v. Spear, 22 Vt. 388 ; Paris v- Vail, 18 Vt. 284-6; Foster v. Collamer, 10 Vt. 446.</p> <p>The signer of a note cannot show by parol that he signed the note in a different capacity from that indicated by the note itself. Brown v. Beebe, i D. Chip. 227; Haven v. Hobbs, 1 Vt. 238 ; Bradley v. Anderson, 5 Vt. 152 ; Claremont Bank v. Wood et al., 10 Vt. 582; Benedict v. Cox, 52 Vt. 247; Morse, Exr., v. Low, Admx., 44 Vt. 561; Hakes et al. v. Hotchkiss, 23 Vt. 231; Bradley ■v. Bentley, 8 Vt. 243 ; Isaacs v. Elkins, 11 Vt. 679; Gillette v. Ballou,, 29,Vt. 296; SpriggY. Bank of Mt. Pleasant, 10 Peters 257 ; Bull v. Allen, 19 Conn. 101 ; Brown v. Woodward, 54 Vt. 581; Bank of Bellows Falls v. Dorset Marble Co., 61 Vt. 106; Martin v. Marshall, 61 Vt. 321.</p> <p>The motion for a verdict was properly overruled. 1 ■Chitty PL, p. 656; Snow v. Conant, 8 Vt. 301 ; Stearns v. Clifford, 62 Vt. 92.</p>

<p>Debt on judgment. Pleas, the general issue and statute-of limitations. Trial by court at the December term, 1892, Rowell, J., presiding. Judgment for the plaintiff. The-defendant excepts.</p> <p>This suit was commenced May 25, 1892. The judgment, declared upon was for $611.23, and was rendered at the-December term, 1883, Addison county. The court found that the defendant had resided without the State since the rendition of said judgment, but that when the judgment was. rendered he owned a top buggy, sleigh, single harness and pair of double harnesses, which were then at his brother’s in Middlebury, and continued there until the spring of 1891; that the value of this property was $125 in 1883, and $100 in 1891, and that the plaintiff might, by the exercise of reasonable diligence, have ascertained its ownership. The court further found that the value of the property was not “an amount sufficient to have yielded the plaintiff substantial benefit in respect to satisfying the debt.”</p> <p>The plaintiff filed a replication to the defendant’s plea of the statute, alleging that</p> <p>“After said cause of action accrued, for a long space of time, to wit, from the first day of December, 1886, to the first day of December, 1891, the defendant (Potter)-was. absent from and resided out of this State, to wit, in the city, county, and State of New York, and in Buenos Ayres in the Argentine Republic, and in other places without this- ' State to the plaintiff unknown ; all of which said period or periods had elapsed before the statute of limitations had run on said judgment. And that during said entire period or periods of such absence and residence out of this State, the defendant did not have any known property within the State of Vermont which could', by the common process of law, be attached.”</p> <p>The replication only excludes one day from the eight years, and therefore the defendant is entitled to recover. Hall v. Nasmith, 28 Vt. 791.</p> <p>The plaintiff ought to have ascertained the ownership of defendant’s property, which is the same thing as though he did know it. Tucker Wells, 12-Vt. 240, 244; Wheeler v. Bretver, 20 Vt. 113, 116; Stoughton v. Dimick, 29 Vt. 535> 538.</p> <p>The defendant had no known property within the meaning of the statute. Hill v. Bellows, 15 Vt. 727 ; Royce v. Hurd, 24 Vt. 620 ; Russ v. Fay, 29 Vt. 381.</p>

<p>Petition for divorce. Heard at the September term, 1892, Rowell, J., presiding. The petition was dismissed on the ground of condonation, to which the petitioner excepted. The court below found the following facts :</p> <p>“In the fall of 1888, and the early winter of 1888-9, the petitionee treated the petitioner with intolerable severity, and the intolerable severity consisted in his so arranging the coal stove in the sitting room as to permit gas to escape into the room and the adjoining room in which the petitioner slept separate and apart from her husband; and this he did on three different occasions. By reason thereof the petitioner suffered serious bodily hurt; for this intolerable severity she preferred her petition for divorce at the April term, 1889, of this court. The following September, while that petition was pending, the petitionee made overtures of reconciliation; thereupon a reconciliation was effected, under promise on the part of the petitionee that if the petitioner would let him come back and she be his wife again, just the same as she had been, she might have his pocketbook and use the money just as she was a mind to, and he wouldn’t say a word; that she might run the inside of the house just as she was a mind to, and he wouldn’t say a word; that she might run the stove just exactly as she was a mind to (he never would let her touch it before) ; that he would settle up all the bills — doctor’s bills (the doctor had attended her considerable for sickness caused by suffocation from the gas) ; and that she might have his papers — the testimony doesn’t disclose what papers. He agreed to pay all expense of her living, and to treat her well, as she ought to be treated. She agreed to withdraw her petition, and subsequently did withdraw it in consideration of his agreement. He gave her $50 to pay the expenses therefor, which was not enough into $13.50. They thereupon went to living together again, and continued to live together and cohabit until about Christmas, 1889; after which they occupied different beds, but continued to live together in the same house until about the time this petition was brought, June 7, 1890.</p> <p>“After this reconciliation the petitionee did not let her have his pocketbook and use the money just as she was a mind to ; he refused to let her burn coal, and she bought some herself. The house in which they lived the while was hers. On one occasion she asked him to get a pint of alcohol, and he wouldn’t — told her she had money and to get it herself; he didn’t pay her doctor’s bills; didn’t let her have any money to spend other than the $50 he gave her to pay the expense of the petition which she withdrew.”</p> <p>A condonation is always conditional. Langdon v. Lang-don, 25 Vt. 678; Stewart’s Mar. & Div., § 309 and cases-cited; Farnham v. Farnham, 73 Ill. 497.</p> <p>The same wrongs need not be repeated in order to waive-a condonation. 2 Greenl. Ev., § 53 ; Robbins v. Robbins,. 100 Mass. 150.</p>

Case for the negligence of the defendant, resulting in the death of the plaintiff’s intestate. Plea, the general issue. Trial by jury at the April term, 1892, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The opinion states the case. The court certifies that he “understood the defendant to abandon the point made by its evidence.” The question is not what the court understood, but what the defendant did in fact concede.

Action on the case against the defendants as selectmen of the town of Calais. Heard at the March term, Washington county, 1892, Thompson, J., presiding, upon the defendant’s general demurrer to the declaration. Demurrer sus-tainecl pro forma, to which the plaintiff excepts. The case appears in the opinion. No. 12, Acts 1884, made it the.duty of the selectmen to see that the highways of a town are kept in repair. For a wilful violation of that duty they should be liable.

<p> Pleading. Former recovery. Whole record inspected upon general demurrer. Replication cannot both deny and avoid. Discontinuance of justice su.it after appeal. </p> <p>1. A plea of a former recovery which alleges in proper form an impleading before a justice of the peace for the same causes of action, and avers that the defendant recovered judgment in said action upon said several causes of action, is good as showing a former recovery upon the merits.</p> <p>2. A replication to such a plea which admits the impleading and judgment, alleges that it was upon a plea in abatement, and that the plaintiff took an appeal, and before the session of the county court discontinued his suit, must be construed as in confession and avoidance.</p> <p>3. A plaintiff in a justice suit, after judgment against him, can not discontinue his suit while pending upon appeal before entry in the county court.</p> <p>4. A plaintiff cannot, by his replication, both deny, and confess and avoid the plea.</p> <p>5. In applying the rule that a general demurrer reaches the first substantial defect, the whole record must be looked into.</p> <p>6. So where the plea is good upon its face, the replication bad, while the rejoinder contains matter which shows that the plea is not good in fact, judgment upon general demurrer to the rejoinder should be for the plaintiff.</p>

<p> Demurrer for want of equity. Effect of overruling. Suit not enjoined because good defence at law. Excess of authority by town building committee. </p> <p>1. The court, in overruling a demurrer to a bill for want of equity, may reserve to the defendant the right to raise the. same question on final hearing.</p> <p>2. When such a demurrer is incorporated in the answer, and the-court, after overruling it, sends the case to a master for trial upon the merits, without any special order as to the. demurrer, it will be presumed, in the present state of equity practice here, that the court intended to reserve to the defendant the right to raise the same jurisdictional question, upon final hearing.</p> <p>3. The plaintiff town voted to build and furnish a town house at a total expense of not to exceed $3,500. Knowing this, the defendant W. contracted with the committee appointed to superintend the work, to build the house, without furnishing it, for that sum, and under this contract constructed it. Meantime the committee furnished the house, and tendered to W. the difference between $3,500 and the cost of the furniture, which he declined to receive and brought suit. Held, that a bill to enjoin the prosecution of this suit would not lie, for the town had a complete defence at law, and the case was not affected by the fact that the committee, before contracting with W., took an obligation from certain persons, who were made defendants in the equity suit, to see them harmless from liability to the town if they made the above contract with W.</p> <p>4. Costs below denied the defendants, because they were mainly responsible for the litigation.</p>

<p> Breach of promise of marriage. Evidence. Practice. </p> <p>1. In an action for breach of promise to marry, the plaintiff may show that the visits of the defendant at her father’s house were at first to the family, of which she was a member, and with which the defendant had been long acquainted, and afterwards to her alone.</p> <p>z. An objection to the admission of testimony will not be considered unless it is followed by an exception.</p> <p>3. Questions as to the surroundings of the main incident, which tend to fix the occasion, or to account for the conduct of the witness in the matter testified to, are largely in the discretion of the trial court, unless they materially prejudice the opposite party in matters not within their recognized purpose.</p> <p>4. A neighbor might properly testify that he saw lights in the parlor on Sunday and Saturday evenings, it having appeared that the family were not accustomed to occupy that room and that it was the room in which the plaintiff received the visits of the defendant. The court will not presume that there was no evidence tending to show that these were the evenings on which the defendant made his visits, if the existence of that fact be necessary to render the evidence admissible.</p> <p>5. As tending to show the pecuniary ability of the defendant upon the question of damages, the plaintiff might give in evidence a decree of the probate court, decreeing a certain sum to the defendant from his father’s estate, although the decree was made after the breach of the defendant’s promise, if the father had deceased before, for the defendant was entitled to his share in the father’s estate from the date of his decease.</p>

<p> Rafe. Evidence. Distress offroseculrix. Leading qtiestion. Alibi. </p> <p>x. The prosecution being for rape, a witness for the State testified that he was present at the time of the assault, and identified the respondent as one of the assailants; also that he saw the respondent the morning after the assault in company with several other persons, and then recognized him. It further appeared from his testimony that upon this latter occasion some one asked him if he recognized any of the assailants among those then present, to which he replied in the negative, and the respondent claimed that this tended to discredit his testimony. Held, that he might then state in explanation that the reason why he so replied in the negative was that he feared the respondent, if warned, would escape arrest.</p> <p>2. A witness who saw three young men, whom he did not know, near the place of the assault at, about the time it was committed, may state that upon the following day he “identified” the respondent and another, while on their way to the police station, as, two of these young men, the word identified being construed to mean no more than recognized.</p> <p>3. In prosecutions for rape the State may show mental and physical distress of the prosecutrix immediately after the assault, as that she cried continuously.</p> <p>4. A witness who testified that he saw three persons together the evening of the assault near the place where it occurred, and that he spoke with and recognized the respondent as one of the three, may further state that he saw the respondent elsewhere during the afternoon of the same day in company with two boys.</p> <p>5. To render the admission of a leading question reversible error, it must affirmatively appear that it was admitted as matter of law.</p> <p>6. The respondent sought to establish an alibi by proving that he was at a certain house during a considerable part of the evening in question. Held, that the trial court properly refused to permit him to show in full the conversations claimed to have been had on that occasion.</p> <p>7. The magistrate before whom was held the joint preliminary examination of the respondent and his two alleged partners in the crime, having testified that the prosecutrix then stated the color of the clothes worn by the respondent at the time of the assault differently, the State might inquire upon cross-examination whether she then attempted to identify the respondent in any other way, and to show that she did so by pointing him out as he sat with the others.</p> <p>8. When assaulted the prosecutrix and one Gonyeau were on their way from Burlington to the village of Winooski, where she resided, and had turned from the main highway into a less traveled road which ran by Athletic Park. Counsel for the respondent was proceeding to argue to the jury that the prosecutrix and Gonyeau were going to the park for an improper purpose, when the court stopped him, and ruled that there was no evidence to that- eHect in the case. Held, no error, since the exceptions showed that respondent’s counsel were permitted to argue that the phj-sical condition of the prosecutrix, as revealed by a medical examination, was accounted for by her previous intimacy with Gonyeau.</p>

General assumpsit, appealed from the judgment of a justice of the peace. Pleas, the general issue, payment, and .statute of limitations. Heard upon the report of a referee at the December term, 1891, Thompson, J., presiding. Judgment for the plaintiff for the larger sum named in the report. The defendant excepts.

Assumpsit. Heard at the September term, 1892, Thompson, J., presiding, upon the report of a commissioner. Judgment for the plaintiff against the defendant, A. O. Brainerd. Hatch was adjudged liable as trustee in the sum of $11.75 and was denied his costs. Stone & Son were adjudged liable as trustees for $442.31 and interest; and Phelps was adjudged liable as trustee in the sum of $500 and interest.

Bill to enforce the payment of a legacy against certain lands. Heard at the August term, 1891, upon bill and answer. TyMer, chancellor, decreed for the orators. Both parties appeal. The opinion states the case. By accepting the deed from Mrs. Platt the defendants became personally liable for the payment of the legacy in suit. Hills. Sharp, Thom. Cases 188; Gian v. Fisher, 6 John. Ch. 33, (10 Am.

<p>Appeal from a decree of the probate court for the district of New Haven, accepting the report of commissioners for the allowance of claims against the estate of Helen L. Perkins, by which the claim of the plaintiff was disallowed. Heard upon the report of a referee at the June term, 1892, Taft, J., presiding. Judgment for claimant. The estate excepts. The opinion states the case.</p> <p>The original contract was void as that of a femme covert, and cannot be made the consideration for a new promise. Hayward v. Barker, 52 Vt. 429.</p> <p>This was a parol contract to part with an interest in real estate and within the statute of frauds. Buck v. Pickwell, 27 Vt. 157; Bro. Fr., § 263.</p> <p>The deed did not convey the barn. Hibbard v. Hurl-burt, 10 Vt. 173; Liffietv. Kelley, 46 Vt. 517; Hullv. Fuller, 7 Vt. 100, 105 ; Mossie v. Watts, 6 Cranch 148.</p> <p>Upon the question as to whether it did the conduct of the parties is admissible. Keith v. B>ay, 15 Vt. 660, 670.</p>

<p>Petition to foreclose a mortgage. Heard upon the report of a master and exceptions of defendants thereto, at the June term, 1892. Tyler, chancellor, joro forma, overruled the exceptions and decreed for the orator in the sum of $449.80. The defendants appeal.</p> <p>■The mortgage in suit was originally given October 26, 1868, by Charles C. Church and William Mattoon to William Gordon, to secure the payment of four notes for $500 each, which by their terms were to bear interest at the rate of nine per cent. Subsequently, Church and Mattoon conveyed the premises to H. F. Bates, subject to this mortgage, which was assumed by Bates. Payments were made upon the notes by Bates from time to time, down to 1877, when a controversy arose between him and Gordon as to the extra interest paid, and Gordon put the notes into the hands of an attorney for collection. Thereupon Bates arranged with the orator to purchase the notes, and the parties met, February 14, 1878, at the office of one Palmer, who acted as the attorney of Bates, for the purpose of ascertaining the amount due on them.</p> <p>As the result of a good deal of discussion, it was agreed that there was then due the sum of $416.65, and Palmer made a minute on the notes to that effect. Thereupon the orator purchased the notes, paid Gordon that sum for them, and took an assignment of the notes and mortgage.</p> <p>Subsequently to this, Bates deceased and the defendant Boyce was appointed his administrator. The defendant Harriet C. Bates was the widow of H. F. Bates, and the defendant Irish had taken a conveyance of the premises from the other two defendants subsequently to the death of Bates.</p> <p>The defendants claimed that extra interest was reckoned in the computation of February 14, 1878, and that there was then due a much less sum than the one stated.</p> <p>The master found that, if the defendants were bound by what was agreed to be due February 14, 1878, there was due the orator $449.80, but that, computing the notes at six per cent, there was due upon them a less sum.</p> <p>The defendant Boyce, after his appointment as administrator, wrote the orator to inquire what took place at the meeting of February 14, 1878, and received a reply which indicated, as the defendants claimed, that the amount due on the notes was not then agreed upon.</p> <p>The defendants are estopped to deny that the amount agreed upon February 14 was the amount then due. Thorp v. L at hr of, 30 Yt. 307; Soper v. Frank, 47 Vt. 363 ; Goodell v. Bank, 63 Vt. 303 ; Sargent v. Sargent, 18 Vt. 371; Foster v. Neelard, 21 Wend. 94.</p> <p>The agreement of February 14 could not increase the amount actually due on the mortgage. Merrill v. Chase, 3 Allen 339; Joslyn v. Benjamin, 5 Allen 62 Thompson, Admr., v. George, 86 Ky. 311.</p>

<p>Case for the negligence of the defendant. Trial by jury at the February term, 1892, Ross, Ch. J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. The opinion states the case.</p> <p>The jury found that the defendant was negligent and that the plaintiff was not guilty of contributory negligence. From these two findings it necessarily follows that the defendant was liable, and it was error to submit any further question as to that liability to the jury.</p> <p>Unless due care upon the part of the defendant would have prevented the injury he is not liable. Shear & Redf. Neg., s. 8 ; Beliefontaine etc. R. R. Co. v. Bailey, 11 Ohio St. 333.</p>

Heard at the August term, 1892, Start, J., presiding, upon motion to dismiss and demurrer to the complaint. The court overruled both the motion and demurrer. The respondent excepts. The complaint was signed by one H. P. Fisher, who made it as “fish warden for the State of Vermont and within and for the county of Grand Isle,” and it alleged that the respondent “at Alburg, in said county of Grand Isle,” did take and have in his possession certain fish in violation of law.

Heard at the December term, 1892, Tyler, J., presiding, upon the report of a commissioner. Judgment for the ap-pellee. The appellant excepts. • The case appears in the opinion. The chamber set, having been bought with the wife’s money, belonged to her estate. Leavitt v. Jones, 54 Vt. '423 ; Sjbooner and Wife v. Reynolds, 50 Vt. 437» 444.

Bill to establish a right of way. Heard at the March term, Washington county, 1891, upon the pleadings, a master’s report and exceptions of the oratrix thereto. Thompson, chancellor, pro forma overruled the exceptions and dismissed the bill. The oratrix appeals. The facts appear in the opinion. When the boundaries of a deed are uncertain the statements of former owners are admissible.

<p> Competency of divorced wife as witness. Presumption in favor of judgment. First■ assault. Charge of coiort. </p> <p>1. The same rule applies to a widow and a divorced wife as to her competency as a witness for or against her former husband.</p> <p>2. She may so testify as to all matters not coming to her knowledge by reason of marital confidence and not affecting the character of her husband, as in this case to a business transaction had while the marriage relation was subsisting, in the presence of herself and several other persons, although the same transaction might bear upon the question whether the husband had been guilt}' of a crime.</p> <p>3. Where the trial court has refused to permit the former wife to testify to the statements of the husband as to his bodily health, this court will presume that those statements were induced by the marital relation rather than reverse the judgment.</p> <p>4. If a bill of exceptions is susceptible of more than one construction, that construction will be given to it which will uphold the judgment below.</p> <p>5. If the defendant, hearing the outcry of murder at his house, saw the plaintiff, who had threatened to kill him and his family, leave the house and pass rapidly along the highway, he might properly step in front of the plaintiff and command him to stop and reveal the cause of the disturbance; and if the plaintiff thereupon draws a revolver, points it at the defendant and exclaims : “Get out of -my way or I will shoot you, too,” that is an assault upon the defendant which he may resist to the extent of disarming the plaintiff if necessary.</p> <p>6. Where several requests are made together to charge, the trial court should read all the requests for the purpose of determining in what sense a particular word was fairly used in a particular request.</p> <p>*]. If; in the course of an affray, the defendant has exceeded his legal right of self defence, nevertheless, upon the question of exemplary damages, the jury should be correctly instructed as to who committed the first assault.</p>

<p>This was an appeal by the Central Vermont railroad company, petitionee, from the decree of the court of chancery for the county of Franklin, construing the mandate of the supreme court in this case.</p> <p>The original caséis reported in 63 Vt. 1. That part of the mandate in question is as follows :</p> <p>“ That all taxes paid to the State by the petitionee, in accordance with the provisions of said act of 1882, notwithstanding its invalidity as above held, were, as against the petitioners, valid payments and so, pro tanto, payments in extinguishment of rent due the petitioner.”</p> <p>The report of the master in the original case showed that the Central Vermont company had computed and paid to the State taxes upon the actual gross receipts of the railroads of the Rutland company, with the exception of the two half years ending December 31, 1883, and June 30, 1884. For those two half years it'had treated its entire system as one railroad, computed and paid taxes to the State upon that theory, and charged the Rutland company with that proportion of the entire. tax paid which the length of its line bore to the length of the-entire system of the Central Vermont. By this method of computation the gross amount of taxes paid to the State was decreased, but the amount charged to the Rutland company was increased.-</p> <p>The petitioner contended that the Central Vermont com-panjr could only pay taxes for it, in accordance with the provisions of .the act of 1882, upon the gross receipts accruing upon the line of its railroads, and that it could not, under the mandate of the supreme court, deduct from the rent due a greater sum than the taxes would amount to, if so computed, upon its own gross receipts. The chancellor so decreed, and from his decree in that respect the Central Vermont company appealed.</p> <p>The mandate of the supreme court is binding literally upon the court below. SorUuell v. M. and W. F. F. F. Co., 56 Vt. 180; Sturgess v. Failroad Co., 36 Vt. 439.</p> <p>The mandate in this case directs the chancellor to allow the Central Vermont company the amount actually paid by it as taxes, and the master finds that it has actually paid a sum in excess of the amount allowed by the chancellor. The decree should be corrected in that particular.</p> <p>The mandate directs that the petitionee shall be allowed whatever it has paid to the State by way of taxes for the petitioner “in accordance with the provisions of the act of 1882.” That act, as construed by this court in 63 Vt. 1, imposes upon each railroad in the State “ as a railroad,” the taxes therein specified. According to that act the petitioner was in equity bound to pay the tax computed upon its own gross receipts, but was not bound to pay any portion of the taxes computed upon the gross receipts of the Central Vermont company. The chancellor decreed that the petitionee should only be allowed for taxes upon the actual gross receipts of the railroads of the petitionee, and that decree should be affirmed. Rutland R. R. Co. v. Central Vt. R. R. Co., 63 Vt. 1.</p>

<p> Insane delusion. Presumption as to continuance. Charge ' of court. Competency of witness. </p> <p>x. Held, that the court sufficiently instructed the jury what, in view of the evidence, would constitute an insane delusion in the testator, and what influence such delusion must have had in the production of the will in order to invalidate it.</p> <p>2. That insanity, once existing, continues, is not a presumption of law but an inference of fact, varying with the circumstances of each case.</p> <p>3. It was claimed that the testator labored under an insane delusion in reference to his wife and daughter which invalidated the will. Held, that the defendant was not entitled to an instruction that if such delusion had continued for several years up to a time eight months before the making of the will, it must be presumed, in the absence of evidence to the contrary, that the same condition of mind existed when the will was made.</p> <p>4. The use of a single improper expression by the court in its instructions to the jury is not necessarily error, if the charge taken as a whole must, have given a correct impression.</p> <p>5. It is the duty of counsel to call attention to such an inadvertence and have it corrected upon the spot.</p> <p>6. A beneficiary under the will is not rendered incompetent by the fact that the will purports to confirm a contract between such beneficiary and the testator.</p>

<p> Electric lighting. Vested right to tise streets. Injunction. </p> <p>1. If a municipality lawfully grants to an electric light company the right to erect poles and string wires along its streets f or the purpose of electric lighting, the company, by proceeding to expend money upon the faith of such license, acquires a vested right to use the streets for that purpose which the municipality cannot impair.</p> <p>2. A second company . cannot, under a subsequent grant from the municipality, erect and maintain its poles and wires in such a manner as to interfere with the first.</p> <p>3. Equity will enjoin such interference.</p>

<p> Application of collateral in reference to surety. When surrender of collateral discharges-surety. </p> <p>1. A creditor holding-collateral as security for several notes, a part of which are signed by a surety, may, as between himself and the surety, in the absence of any direction from the debtor, apply the proceeds of the collateral to what notes he pleases.</p> <p>2. A creditor who voluntarily surrenders collateral discharges to that extent the surety, but it is. not a voluntary surrender to pay over to the debtor the proceeds of the collateral upon the substitution of other collateral in pursuance of a contract in force when the relation of suretyship was assumed.</p> <p>.3. The plaintiff had entered into an arrangement by which it was to discount the paper of V. to an amount of $10,000, upon condition that V. should, deposit with it an equal amount of commercial paper as collateral. As this commercial paper was paid, the plaintiff was to pay over to V. the proceeds upon receiving other satisfactory paper in substitution. Becoming dissatisfied, the plaintiff refused to go on without additional security, and the defendant signed as surety, nothing being said about the collateral fund. At a certain point the defendant refused to sign as surety longer. When V. stopped pajrment the plaintiff held four notes : one for $2,000 and one for $1,500, signed by defendant, and one for $3,500 and one for $2,000, not signed by the defendant, but taken in' renewal for notes which had been signed by her. Subsequently to the date of first of the two notes signed by the defendant, the plaintiff collected from the collateral notes in all $9,059.36. Of this the plaintiff had paid over to V., from time to time, upon receiving other collateral paper, $4,287.77) an<^ had applied the balance in payment upon the two notes not signed by the defendant. Held, that the defendant was not discharged as surety by the act of the plaintiff in so paying over the proceeds of the collateral notes to V., and that it might make the application of the balance which it did.</p>

<p> 'Error not to exercise discretion. County Court may strike off non-suit. </p> <p>1. Where a party has the legal right to require the county court to exercise its discretion, it is error for that court to refuse to do so.</p> <p>2. It is within the power of the county court to strike off, in its discretion, a judgment of non-suit entered for want of prosecution.</p> <p>3. Such right is not statutory, but springs from the inherent power of courts over their their own judgments.</p>

This was an appeal from an order of the court of insolvency for the district of Windham. Heard upon the report of a referee at the September term, 1892, Munson, J., presiding. Judgment for the claimant for $34.50. Exceptions by the claimant. In 1882, I. K. Allen, who was then doing business as a lumber dealer in Brattleboro, gave to the claimant a mortgage of certain office furniture and certain lumber of various-kinds to secure the payment of his note for $1,500.

<p>Assumpsit. Pleas, the general issue and payment. Trial by jury at the April term, 1892, Munson, J., presiding. Verdict and judgment for the defendants. The plaintiff excepts.</p> <p>The plaintiff sought to recover the balance due upon a promissory note for $100, which he introduced, and rested. The defendants were then permitted to show that this note was one of three similar notes given by them to the plaintiff in payment for a piano ; that the note in suit was the last of the three to fall due, and that they had paid and taken up' the two other notes ; that the first payment made by them was one of $50 to apply on the note first falling due, but that it had never been endorsed upon either of the two notes taken up. The defendants claimed that this $50 should be applied upon the note in snit, in which event it would satisfy the balance due.</p> <p>The plaintiff insisted that inasmuch as the payment, if ever made, was to be applied upon the note first to fall due, it could not under the pleadings be given in defence to this suit, and objected and excepted to the introduction of the foregoing evidence.</p> <p>The defendants expressly testified that the $50 payment was to apply on the note first falling due, and not upon the note in suit, and the plaintiff upon this evidence moved the court to direct a verdict in his favor for the amount which was admittedly due unless satisfied by this payment. This motion the court overruled and instructed the jury that if the payment was made as claimed by the defendants it would be in effect a payment upon the entire indebtedness, and if not accounted for in the payment of the other two notes, might be shown in defence of this suit.</p> <p>To the refusal of the court to direct a verdict and to the charge of the court as above the plaintiff excepted.</p> <p>It appeared that at one time the defendants promised the plaintiff to pay him the balance claimed by him to be due on the note if he would withdraw it from the hands of an attorney with whom he had left it for collection.</p> <p>The defendants are barred by the statute of limitations from recovering the $50 paid on the first note and not endorsed. Cushman v. Hall, 28 Vt. 656; "Jewitt v. Winshij), 42 Vt. 204; Slason v. Davis, 1 Aik. 73.</p> <p>They are estopped from setting up this defense by their promise to pay the balance due. Cornell v. Prescott, 2 Barb. 16; Hawley v. Griswold, 42 Barb. 18. '</p> <p>Evidence of the $50 payment was properly admitted, Richardson v. Royalton Etc. T. Co., 6 Vt. 496; Kimball v.. Locke, 31 Vt. 686; Camf v. Page, 42 Vt. 739.</p>

C. Powers. Heard upon the report of referees at the September term, 1892, Thompson, J., presiding. Judgment for the estate. The claimant appeals. At the March term of the Rutland county court, 1879, A. C. Powers, claimant in this suit, brought an action in as-■sumpsit against J. C. Powers then in life. The suit was referred under the statute to two referees at the September term, 1879.

Assumpsit. Plea, the general issue. Heard at the December term, 1891, Caledonia county, Start, J., presiding, upon the report of a referee and exceptions of the plaintiff thereto. The court overruled the exceptions and gave judgment for the plaintiff in the sum of $148.50 and interest. The defendant excepts.

Assumpsit. Trial by •jury at the September term, 1892, Rowell, J., presiding. - Verdict and judgment for the plaintiff. The defendant excepts. The plaintiff claimed to recover - for the support of her emancipated minor son, who was a helpless cripple by reason of an injury received some years before, and after becoming of age, and who was without means. The pauper was supported in the plaintiff’s family, of which his two brothers, both of age, were members.

<p> County court may strike off default. </p> <p>The comity court may, upon motion, strike off a judgment by default during the term at which it is rendered. R. L. s. 1,422, providing for a petition to the county court in such case, affords an additional remedy, not an exclusive one.</p>

<p> Declaration. Judgment on good count. Practice. Mistake of fact. Demand before suit. Commissioners. </p> <p>1. Where a declaration contains several counts for the same cause of action, one of which is good, a general judgment will not be reversed for that the trial court improperly refused to dismiss the other counts. The verdict and judgment are deemed to be upon the good count.</p> <p>2. If a defendant at the close of the plaintiffs case moves for a verdict and states that he does not desire to go to the jury, he thereby admits all that the evidence of the plaintiff tends to prove.</p> <p>3. A mutual mistake as to the title of personal property sold, may be one of fact, so as to permit a recovery of the purchase jrrice, although arising from a misinterpretation of law.</p> <p>4. In such a case, where the defendant represents that he has title, no demand need precede the bringing of suit.</p> <p>5. A commissioner, appointed under No. 16, St. 1886, to superintend the expenditure of State funds appropriated in support of highways, may recover in his own name a payment made under a mistake of fact for materials used.</p>

<p>Book account appealed from a judgment of a justice of the peace. The plaintiff moved for a judgment to account, to which the defendant objected for that he was entitled to a jury trial upon the merits. Heard at the December term, 1892, Start, J., presiding. The court pro forma sustained the defendant’s objection. The plaintiff excepts. The opinion states the case.</p> <p>The case stood for trial de- novo in the county court. Bundy v. Bruce et al., 61 Vt. 6x9 ; Fletcher v. Blair et al., 20 Vt. 124; Chadwick & Co. v. Divol, 12 Vt. 499; Proctor v. Willey, S3 Vt. 406; Martin v. Fairbanks, 7 Vt. 97.</p> <p>The legislature may determine the manner of trial. Re Marrón, 60 Vt. 199 ; Jones v. Spear, 21 Vt. 426 ; Huntington v. Bishop, 5 Vt. 186.</p> <p>The constitution of the United States secures the defendant a jury trial. Constitution of United States, 7th amendment; Parsons v. Bedford, 3 Pet. 447.</p> <p>So do the constitution and laws of Vermont. Bill of Rights, Vt., chap. 1, art. 12, chap. 2, s. 31; Const. Vt., 1777, chap. 1, art. 13; id. 1786, chap. 1, art. 14; Plymp-ton v. Somerset, 33 Vt. 283 ; State v. Peterson, 41 Vt. 508 ; Copp v. Henniker, 55 N. H. 179 (S. C. 20 Am. Rep. 194) ; Francis v. Baker, 11 R. I. 103 ; St. Paid and Sioux City Railroad Co. v. Gardner, Apt., 19 Minn. 32 (S. C. 19 Am. Rep. 334); Hunt et al. v. Lucas, 99 Mass. 410; Commonwealth v. Anthes, 5 Gray 222 ; Jones v. Robbins, 8 Gray 340.</p>

<p>Bond not to object to tv ill. Consideration. Public -policy.</p> <p>1. No consideration for a bond under seal need be alleged.</p> <p>2. A declaration counting upon a bond from the defendant to the plaintiff not to contest the probate nor waive the provisions of the will of C., and alleging á breach of the conditions, need not aver the relative interests of the plaintiff and defendant in the will.</p> <p>3. Such an agreement is not void as against public policy.</p>

Case for the negligence of the defendant. Heard upon general demurrer to the declaration at the September term, 1892, Munson, J., presiding. Demurrer overruled. The defendant excepts. The point raised appears in the opinion. If a servant continues in the employment with knowledge of a co-servant’s incompetency, he cannot recover for the injury due to that cause.

Complaint by the State’s attorney to the city court of Burlington, charging the respondent with keeping intoxicating liquor with intent to sell, which came by appeal from that court to the county court, where it was tried upon a plea oí not guilty at the September term, 1892, Thompson, J., presiding. Verdict, guilty. Sentence upon the verdict and exceptions by the respondent. The opinion states the case. '

<p>Case for personal injuries sustained through the neglect of the defendant. Plea, the general issue. Heard at the April term, 1892, upon the report of a referee, Taft, J., presiding. Judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff was a stone mason in the employ of the defendant and was injured by the fall of a derrick occasioned by the breaking of a guy rope. The derrick had been set up under the personal supervision of the defendant. It was held in place by four guy ropes, three of which were „wire ropes. In putting these wire ropes up it was noticed that they were rusted and the strands of one of them became broken and were repaired. These facts were known to the defendant and he inspected the ropes and thought them sufficiently strong. The plaintiff was not present when the derrick was set up but knew that there had been some discussion among the men who were there as to the sufficiency of the ropes, and expressed some doubts upon that point himself. The referee found that neither the plaintiff nor the defendant thought the ropes were insufficient, or that it was unsafe to work under them.</p> <p>In point of fact the rope which had been repaired broke in another place in handling the second stone.</p> <p>The referee reported that a prudent man would have tested this guy before putting men to work under it; that the defendant was negligent in. no other respect, and that the plaintiff knew that it had not been tested.</p> <p>The plaintiff had the same knowledge and means of knowledge as to this defective guy as the defendant, and cannot therefore recover. Ffason v. West, 2 New Eng. Rep. 72; W/veelerv. Wason Mfg. Co., 135 Mass. 238; Priestly v. Fowler, 3 Mees. & Weis. 1; Carbine, Admr., v. Ben. and But. F. F. Co., 61 Vt. 348; Shear & Redf. Neg. 209.</p> <p>The referee finds that the negligence ofthe defendant caused the injury; hence he is liable. Hill v. New Haven, 37 Vt. 508-9. . .</p> <p>. The referee does not find any negligence upon the part of the plaintiff and the court will not infer it. Fogers v. Swan-ton, 54 Vt. 585 ; Clayards v. Detrich, 12 B. 439.</p>

Information for quo warranto. Heard at the May term, Orleans county, 1893. The case appears in the opinion. The day of the request should be included in the computation of time. Presbrey et al. v. Williams, 15 Mass. 193 ; Glassington et al. v. Rawlins, 3 East 407; Kingv. Ad-derly, Dougl. 463 Norris v. The Hundred of Gautris, 465 ; Pugh v. The Duke of Leeds, Cowp. 714. A delivery to the town clerk was insufficient. There could be no acceptance save by the selectmen.

Assumpsit. Plea, the general issue. Trial by jury at the September term, 1892, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendants except. The plaintiff offered in support of his case a chattel mortgage from one Miles to Cad P. Bridgman, which was sworn to before the town clerk of the town of Hardwick. At the time of the execution of the mortgage Miles resided in Hard-wick and the mortgage was recorded in the town clerk’s office in that town.

<p> Former adjiodication. Whole matter mu,st have been involved. Stattite of frauds. Agreement to sell lands. Demu,rrer. </p> <p>1. In order that a former adjudication may be a bar to a second suit it must appear that all the matters embraced in the second suit either were or ought to have been litigated in the first suit.</p> <p>2. The plaintiff declared for that the defendants upon receiving from him an absolute deed of certain premises, had loaned him certain money and agreed by parol to advance him further sums with which to put the land in shape to sell for building lots, to convey the lots when sold by the plaintiff upon receiving the purchase price, and when the entire' advances by them had been repaid to convey the balance of the land to the plaintiff, and to permit the plaintiff to retain possession of the land meantime, alleging a breach of these promises. The defendants pleaded in bar that heretofore the plaintiff had brought a suit in equity against them setting forth the loan, the conveyance and the other undertakings mentioned in the declaration, and praying that the absolute deed might be decreed a mortgage, that an account be taken of the amount due the defendants, and the plaintiff allowed to redeem upon the payment of such sum ; that an accounting was had and a decree made that the plaintiff might redeem upon paying to the defendants on or before a day certain the sum so found due, and in default of such payment should be foreclosed of all interest in the premises; and that the plaintiff failed to make payment "under this decree. The plaintiff demurred generally. Held, that the derriurrer should be overruled for it did not appear that the plaintiff’s damages consequent upon, the failure of the defendants to give him possession of the land and furnish him money with which to market it were, or necessarily should have been determined in the equity suit.</p> <p>3. On the hearing of a general demurrer the whole record should be inspected and judgment given accordingly.</p> <p>4. Treating the facts stated in the plea as true, the statute of frauds does not bar the plaintiff’s right of recovery on the contract, for by the plea it is conceded that the absolute deed was in facta mortgage, and an agreement by the mortgagee that the mortgagor may remain in possession until condition broken, or that he will reconvey the premises upon the payment.of the mortgage is not within the statute.</p>

<p>Replevin for two cows. Plea, the general issue. Trial by, jury at .the February term, 1893, Tyler J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.'</p> <p>The defendant claimed title by virtue of an attachment of the cows as the property of the plaintiff’s husband. The facts appear in the opinion.</p> <p>Whether the sale to Smith was collusive should have been submitted to the jury. Webster v. Denison, 25 Vt. 493 ; Taylor, Admr., v. Wait, 52 Vt. 544; Batchelder v. Carter, 2. Vt. 168; Kelley v. Hart, 14 Vt. 50; Rogers v. Vial et al., 16 Vt. 327 ; Evarts v. Burgess, 48 Vt, 205 ; Fitzfatrick v. Peabody, 51 Vt. 195.</p> <p>The officer could not bid in the property for the creditor. Freem. Ex., s. 292 ; Hall v. Miller, 15 Vt. 211; Harrison v. McHenry, 9 Ga. 164; Farman v. Perry and Trustee, 43 Vt. 473.</p> <p>No change of possession is necessary in case of a sheriffs sale. Boardman v: Keeler, 1 Aik. 158.</p> <p>The proceedings being regular, the validity of the execution sale cannot be questioned. Austin v. Sotde, 36 Vt. 645.</p>

Information for impeding an officer. Heard upon general demurrer to the information at the June term, 1892, Tyler J., presiding. Demurrer overruled. The respondent excepts. The opinion states the case. There is no direct allegation that the officer was interfered with. State v. Lovett, 3 Vt. no. There is no allegation that the respondent knew that those assaulted were acting by the request of the officer. 2 Bish. Crim. Law, 340, 440, 557, 558, 688, 696; Statev.

<p> Reformation of Mortgage. Bona fide -purchaser. Parol evidence. Parties. Laches. </p> <p>1. A court of equity may reform a mortgage so as to include premises intended and supposed to be embraced, even after sale and foreclosure, unless-the rights of bona fide purchasers for value have intervened.</p> <p>2. One who purchases the property upon the understanding that it is covered by the mortgage cannot object; nor can one who purchases after the foreclosure decree has become absolute with knowledge of a rumor that the title under the mortgage is defective and that the mortgagee is in possession.</p> <p>3. Pa'rol evidence is admissible upon the question as to whether there was a mistake; and as to whether the defendant was a bona fide purchaser.</p> <p>4. The mistake was made in 1877) and discovered in 1884. The defendant acquired his title in April 1891, and first took possession under it in November, 1891, the oratrix having previously been in exclusive possession. This suit was brought to the May term, 1892. Held, that there was no laches upon the part of the oratrix in seeking the relief.</p> <p>5. As a general rule, an objection for want of proper parties cannot be taken for the first time upon final hearing.</p> <p>6. One who has parted with his entire interest in the premises is not a necessary party to a suit to reform and foreclose a mortgage.</p>

Case for the negligence of the defendants. Plea, the general issue. Trial by jury at the March term, 1892, Ross, Ch. J., presiding. Verdict for the defendant. The plaintiff excepts. The opinion states the case. That the plaintiff has failed in her action against the municipality for this saíne injury is no bar to the present action. Bennett v. Whitney, 94 N. Y. 302 ; Severin v. Eddy, 52 Ill. 139; Perry v. Averill, 37 Hun 363.

<p>Assumpsit. Pleas, the general issue and plea in off-set. Heard upon the report of a referee at the June term, 1892, Thompson, J., presiding. Judgment for the plaintiff to recover damages for the destruction of the engine and boiler and the amount of the rent in arrear. The defendants except.</p> <p>This action is based upon a written contract of lease, by which the plaintiff leased his steam saw-mill to the defendants for a specified term. No copy of the lease was furnished the reporter and it does not appear that the same was referred to before the court.</p> <p>Under this contract the defendants took possession of the property on the first day of February, 1886, and continued to use it as a saw-mill until the tenth day of March, i886r when the boiler exploded, entirely destroying the boiler and engine and seriously damaging the building.</p> <p>The plaintiff was not a practical machinist and had no knowledge beyond that of an ordinary man as to the use of a boiler and engine. He had purchased this boiler in the summer of 1884, and had operated it himself for some months, before leasing it to the defendants. The boiler was old when he purchased it and.he caused certain repairs to be made upon it after it came into his possession. Before using it himself he had it tested by cold water pressure of 140 pounds to the square inch. The boiler was provided with both a safety-valve and a steam-gauge, and while the plaintiff operated it he set the safety-valve so that the boiler would blow off when the gauge indicated 80 pounds pressure. Soon after the defendants began to operate the property it was observed that the safety-valve and steam-gauge did not agree. Instead of undertaking to ascertain what the cause of the disagreement was the defendants put an additional weight upon the safety-valve so that it would blow off when the steam-gauge indicated 100 pounds pressure. The referee found that the cause of the explosion was the negligence of the defendants in having weighted down the safety-valve without knowing definitely at what pressure the boiler would "blow off.</p> <p>The mill was intended for a saw-mill and leased for that purpose. The engine and boiler were supposed to be of 25 horse-power. The defendants claimed that before executing the lease the plaintiff had warranted the engine and boiler to be of sufficient capacity to run the board-saw and other machinery; that it was not of such capacity and would not run the machinery under the pressure which was being put upon the boiler at the time of its explosion.</p> <p>The plaintiff objected to the admission of this parol testimony, but the master received it subject to the exception, and found solely upon the strength of it that the plaintiff did make the representations or warranties which it tended to ■esfablish.</p> <p>The defendants claimed that the engine and boiler were utterly unfit for the purposes for which they were leased and that the plaintiff was guilty of fraud in having leased them to the defendants for that purpose. The referee found that they were unfit for the work contemplated by the lease but failed to find that the plaintiff was guilty of any fraud or deceit in the premises.</p> <p>Directly after the explosion the defendants notified the plaintiff that they should no longer use the property and that if loss happened to it in its then condition it would be at his risk. They also sought to recover under their plea in offset, or by way of recoupment in this suit, their damages incident upon the fact that they were unable to use the mill for the purpose of sawing out the stock of logs which they had put in. The referee found that the damages to the boiler and engine were $250, and that the damage to the mill building was $75- He also found that the whole amount of the rent in arrear was $147, but did not find the amount of the rent from February 1st to March 10th.</p> <p>The plaintiff could not recover rent after the destruction of the property. Womack v. Mc£>it,ary, 28 Ind. 103 ; Ketv v. Merchants' Exchange Co., 92 Am. Dec. 306; Winters. Cornish, 5 Ohio 477 ; Stock-well v. Hunter, 11 Met. 448.</p> <p>The defendants should have been allowed to recoup their damages arising from the destruction of the mill. Randall v. Farnum, 52 Vt. 539.</p> <p>The report of the referee does not fairly find either a warranty or a fraudulent misrepresentation upon the part of the plaintiff; hence the defendants cannot recoup. ■ Kerr, Fraud, 84 etseq; Beemanv. Btcck, 3VL 53 ; Reedy. Wood, 9 Vt. 285 ; Foster v. 'Estate of Cadwell, 18 Vt. 176 ; Bond & Green v. Clark, 35 Vt. 577 ; Wallace v. Stone, 38 Vt. 607 ; Nye v. Merriam, 35 Vt. 438.</p>

Action under'R. L. s. 3,833 to recover damages for the death of the plaintiff’s husband ’resulting from intoxication caused by intoxicating liquor unlawfully furnished him by the defendant. Plea, the general issue. Trial by jury at the September term, 1892, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

Ejectment for a slate quarry. Plea, the general issue. Trial by court at the March term, 1892, Ross, Ch. J., presiding. Judgment for the plaintiff.

<p> Exempt prof erty. What facts must appear in suit to recover for. No presumption of fact not warranted by record. Assumption of fact in trial below. </p> <p>1. In order to recover for property as exempt, the plaintiff must show all the facts necessary to bring the property within the statute of exemption.</p> <p>2. Where the plaintiff claims to recover for a wagon under a statute exempting a wagon or ox-cart, as the debtor may elect, it must affirmatively-appear that the debtor had no ox-cart or that he elected the wagon as exempt.</p> <p>3. The supreme court will not presume in favor of a judgment that the trial court drew any inference or found anjr fact not fairly warranted by the facts certified up.</p> <p>4. Where the exceptions state that the course of the examination assumes a certain fact, that fact will be treated as in the case.</p> <p>5. The supreme court refused to recommit the case for a further finding of fact.</p>

This was a petition for a mandamus directing the State auditor to draw an order for certain water rents accruing in connection with the court house and jail in Orleans county. Heard upon answer and an agreed statement of facts at the May term, ±893.

<p>Assumpsit. Pleas, the general issue and statute of limitations. Trial by jury at the December term, 1891, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The case appears in the opinion.</p> <p>The plaintiff should recover upon the ground that the defendant equitably owes him the sums sued for, and parol evidence is admissible to show the facts from which this equity springs. Welch & Vance v. Darling, 56 Vt. 136 ; ' Gifford v. Willard, 55 Vt. 36.</p> <p>The cause of action did not accrue until the defendant refused to perform. Cobb v. Hall, 29 Vt. 5x0.</p>

<p>Appeal to the county court from a sewer assessment by the bailiffs of the village of Brattleboro. Heard at the September term, 1891, Rowell, J., presiding, upon the report of commissioners. Judgment for the petitioners. The pe-titionee excepts.</p> <p>In the spring of 1881, several persons, of whom William H. Esterbrooks was one, constructed a sewer along Elliot street, in the village of Brattleboro, for the purpose of affording drainage to the lands upon that street, into the Connecticut river. Originally this sewer was entered only by those persons who had borne the expense of its construction,, but subsequently other .land owners were permitted to enter it upon the payment of a portion of the expense of its construction, and articles of association were framed defining the rights of the several proprietors in this sewer, from which the same came to be called the “ association” sewer.</p> <p>October 7, 1881, the proprietors of the “association”' sewer, being desirous of relieving themselves from the future expense of maintaining the same, conveyed the sewer to the village of Brattleboro without compensation, and the village accepted the sewer and agreed to maintain it in the future.</p> <p>In 1886, the bailiffs of the village of Brattleboro constructed a sewer known as “Elliott, Frost and Flat street sewer,” which drained a considerable territory in the village and which connected with and was discharged into the river through the “association” sewer. In constructing the “Elliott, Frost and 'Flat street sewer” and connecting it with the “association” sewer it became necessary to lower a portion of the latter. The bailiffs of the village claimed that by connecting the “ Elliott, Frost and Flat street” sewer with the “ association” sewer the two became a part of one system, and that the land owners along the “ association” sewer might be assessed towards the expense of lowering that sewer, as aforesaid, and also for the expense of constructing the “Elliott, Frost and Flat street sewer” over and above the amounts derived from assessments.</p> <p>The petitioners own certain property upon Elliott street, through which the “association” sewer had been originally constructed, and derived their title to the same from the aforesaid William H. Esterbrooks, one of the original proprietors of that sewer. At the time when the original sewer was constructed there was standing upon this land a building which continued to stand there down to the time of the controversy. After the petitioners acquired their title to the land and before the laying of this assessment, they constructed upon the land a brick building and from this laid a sewer to and connected with the sewer which had always run from the wood building into the “association” sewer. It was for the benefit derived by the petitioners from the drainage afforded this new brick building that the bailiffs attempted to lay the assessment.</p> <p>When an assessment is once levied and paid for the making of a local improvement, no further assessment can be made for its repair. Dillon Mun. Cor., 596.</p>

<p> What is a letting ujion shares. </p> <p>Where a lease provides that the lessee shall pay by way of rent “the annual sum of one-half the income of said farm,” the letting is not upon shares and the lessor has no lien on the crops as against the creditors of the lessee.</p>

<p>This was a petition to the county court for an appeal from the action of the trustees of the village of Bradford in altering a highway and awarding damages in the premises. The defendant moved to dismiss, for that the petition should have been brought to a previous term. Heard upon this motion at the December term, 1892, Munson, J., presiding. The petition was dismissed, and the petitioner excepted. The opinion states the case.</p> <p>The action of the trustees, unappealed from, was in the nature of a judgment against the petitioner. Hay-ward v. Charlestown, 34 N. H. 23 ; Horne v. Rochester, 62 N. H. 347 ; Butman v. Vermont Central Rd. Co., 27 Vt. 500.</p> <p>The only right of appeal was statutory, and unless the statute was followed the county court had no jurisdiction. French v. Hall, 55 Vt. 364; Peniman v. St. Johnsbury, 54 Vt. 306 : Hodgaboon v. Highgate, 55 Vt. 412 ; Winooski Lumber Co. v. Chester, 57 Vt. 538.</p> <p>Under the statute this petition should have been brought to the next term of the county conrt. Braintree v. West-ford, 17 Vt. 141 ; Strafford v. Hartland, 2 Vt. 565.</p>

<p> Contract to board illegitimate child. Interest. Intoxicating liquor. Recovery of money paid for intoxicating liquor. Action survives. Original package. Evidence. </p> <p>1. The plaintiff contracted with the intestate to board the illegitimate daughter of the intestate, therebeing.no specification as to the duration of service or time of payment. Under this contract the plaintiff took the daughter into his family at five years of age and kept her until she was twenty-one years of age, during which time the intestate made but seven small payments, and the plaintiff never made any demand for payment. Held.</p> <p>a. That the plaintiff could recover for board after the daughter became of age as well as before.</p> <p>b. That interest should be computed from the end of each year.</p> <p>2. Evidence that the intestate had settled with the mother of the illegitimate child before the making of the alleged contract is too remote to warrant a reversal of judgment for its rejection, where it appeared that the child was in the possession of the father at the time it was made, although the mother had previously married the plaintiff and was then living with him as his wife.</p> <p>3. The right of action to recover money paid for intoxicating liquor unlawfully sold survives.</p> <p>4. Such right of recovery is not affected by the fact that the liquor was, to the knowledge of the parties, sold and delivered in this state for the purpose of unlawful sale here.</p> <p>5. A'resident of Vermont might under the federal constitution, before any federal legislation upon that subject, lawfully import from another State and sell in Vermont intoxicating liquor in the original package.</p>

<p>Indictment for the larceny of two lap robes. Plea, not guilty. Trial by jury at the March term, 1892, Washington county, Thompson, J., presiding. Verdict, guilty, and sentence on verdict. The respondent excepts.</p> <p>The only witness on the part of the State to the fact of the taking was one Charles Howe. The respondent was a farmer living in the town of Northfield. Howe worked for him on his farm, and at the time of the alleged crime was keeping there a team consisting of a horse and express wagon. Howe testified that on the night of May 22, 1891, at the suggestion of the respondent, he and the respondent started from the respondent’s farm with his, Howe’s, team, to go to Roxbury, an adjoining town, to steal some phosphate from a store-house known as the “Warren shed”; that upon arriving at this shed they broke it open, found no phosphate in it, but carried away from it and placed in their wagon some baskets and butter tubs; that from there they proceeded to several other places in that vicinity, stealing from these vaxdous places several articles; a robe and whip from one, two horse bridles from another, a blanket from another, a bag of meal from another, all of which articles were taken and placed, sometimes by Howe and sometimes by the respondent, in the express wagon; that in the course of the expedition they stopped at the house of one Frank Spaulding, adjoining which was a shed; that the respondent sat in the wagon and held the team while Howe went into the shed and brought out and placed in the wagon the two lap robes, for the larceny of which the respondent was on trial; that they afterwards drove home and had a lunch ; that after lunch the respondent suggested that they were still without their phosphate, and that thereupon, at his instance, they went to a neighboring store and stole two bags.</p> <p>There was no witness except Howe to the fact of the taking, or the fact of the expedition, or the fact that Howe and the respondent were together in Roxbury that night, which the respondent denied ; but the State was allowed to prove, by the owners of those various articles, that they were stolen by some one about that time, and that certain of the articles were found upon the premises of the respondent August 24 following.</p> <p>The respondent excepted to the admission of the evidence relating to the commission of any other larceny than the one for which he was on trial.</p> <p>Proof of other larcenies was not admissible. Barton v. State, 18 Ohio 221; State v. Goetz and Martin, 34 Mo. 85 ; Gilbraith v. State, 41 Texas 567 ; Peoffe v. Sessions, 10 Hun. 158; Regina v. Oddy, 6 British Cr. Cas. 266; Peck v. State, 2 Hun.' 86; Rex v. Birdseye, 4 C. &. P. 386; 19 E. C. L. 566; Peofle v. Hartman, 62 Cal. 562; State v. Riavis, 71 Mo. 419; Ntaie v. Danbert, 42 Mo. 242 ; SVaie v. Kelley, 18 Texas App. 262.</p> <p>Evidence that this larceny was one of a continuous series upon the same expedition was properly received. Whar. Cr. Ev. (9th Ed.) 31; Com. v. Sturtevant, 117 Mass. 122; Health v. Com., 1 Rob. (Va.) 735 ; Gassenheimer v. State, 52 Ala. 318; Goersen v. Coot., 99 Pa. 388; Goersen-¶. Com., 103 Pa. 477 ; Rex v. Long, 6 C. & P. 179; Peofle v. Stout, 4 Park. Cr. Cas. 127 ; Rex v. Sailabury, 5 C. & P. 155 ; State v. Schaffer, 30 N. W. Rep. 639; Lamb v. State, 5 Cent. Rep. 774; Rex v. Moore, 2 C. & P. 235 ; Regina v. Briggs, 2 M. & R. 199; State v. Pol-well, 14 Kan. 108; Burrv. Com., 4 Gratt ¿34; King v. Wylie, 1 B. & P. 94; Regina v. Reardon, 4 F. & F. 79; King v. Ellis, 13 Eng. Com. Law 76; Moore v. State, 28 Texas 227; Z7. N. v. Boyd, 45 Fed. Rep. 852; Regina v. Co<5-3 F. & F. 833.</p>

Indictment for setting fire to a school house with intent to burn the same. Plea, not guilty. Trial by jury at the September term, 1892, Thompson, J., presiding. Verdict guilty. Judgment of guilty on verdict.- The respondent excepts. The opinion states the case. The indictment should have alleged that the school house was erected for public use. State v. Roe, 12 Vt. 93 ; R. L. s. 4,128 ; Whart. Prec.

Assumpsit for the expense of supporting a pauper. Plea, the general issue. Trial by jury at the June term, 1891, Addison county, Thompson, J., presiding. The court directed a verdict for the defendant, to which the plaintiff excepted. The case appears in the opinion. The pauper was not a transient.

Information for keeping intoxicating liquor with intent to unlawfully dispose of the same. Plea, not guilty. Trial by jury at the March term, 1893, Taft, J., presiding.

<p>Covenant broken. Plea, the general issue. Trial by court at the March term, 1893, Taft, J., presiding. Upon the facts found by the court, judgment was given for the defendant. The plaintiff excepts. The opinion states the case.</p> <p>Under a plea of the general issue the only defence open to the defendant was that covenant had not been broken. He could not show an estoppel. Chitty PL, 487-518; Gould PL, 284 and nóte; s. 301, 41, 42, 43 ; Stephen PL, 151 ; Gardner et al. v. Gardner et al., 10 Johns. 47 ; Legg v. Robinson, 7 Wend. 194; Brazee & Carroll v. Blake & Gay, 5 Ohio 340 ; Granger, Admr., v. Granger, 6 Ohio 35 ; Reynolds et al. y, Rogers' Exrs., 5 Ohio 169; Abbott v.' Allen et al., 14 Johns. 248.</p>

<p>Action on the case for the negligence of the defendant, resulting in the death of the plaintiff’s intestate. Plea, the general issue. Trial by jury at the March term, 1892,, Ross, Ch. J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff in her declaration alleged, after setting out the negligence of the defendant and the consequent injury and death of the intestate, that the intestate left surviving him a widow and six minor children, his next of kin, to whom the damages, if any were recovered in this action, could be distributed.</p> <p>Upon the trial of the case the plaintiff offered evidence tending to show these facts, and also the age and earning capacity of the intestate. The defendant objected to the introduction of this testimony for that there was nothing in the declaration which laid the foundation for it. The court admitted the testimony and the defendant excepted.</p> <p>The evidence of the plaintiff tended to show that the defendant was the owner and operator of a slate quarry, and that the intestate was employed by him in the operation of said quarry; that the slate, stone and rubbish were taken from the bottom of the quarry by means of an incline to the top, in a box, which was there placed upon a truck, and carried to its destination; that this truck was brought upon two iron rails to the edge of the quarry for the purpose of receiving the box; that the distance from the top to the bottom of the quarry was.several hundred feet, and that the work of the intestate was at the bottom of the quarry and at the foot of the wall which rose nearly perpendicular above him ; that at the time of the accident the box had been loaded by the intestate and taken to the top of the ledge ; that while the workmen at the top of the ledge were attempting to lower the box and place it upon the trucks, the box suddenly tilted away from the quarry and forced the trucks over the ends of the rails into the quarry, by which the plaintiff was struck and instantly killed; that the ends of the rails were in no respect protected as they ought to have been for the purpose of preventing the truck from escaping over the ends into the quarry in the manner it did, and this was the negligence complained of by the plaintiff.</p> <p>The defendant did not deny that if the ends of the rails were left unprotected, as the evidence of the plaintiff tended . to show, it would have been negligent on his part, but he claimed, and his evidence tended to show, that before the accident there had been placed and securely fastened upon the ends of the rails at that point a large block of timber,, and that this timber was torn away at the time the car fell-into the quarry. He further claimed, and his evidence tended to show, that the accident was occasioned by the fact that the intestate in loading the box had placed in it a large stone which caused the box to tilt when being lowered onto the trucks and thereby occasioned the accident, and- that the intestate had been repeatedly instructed not to put large stones like this one into the box, for the reason that it was •dangerous.</p> <p>The evidence of the defendant further tended to .show that the accident, if not occasioned wholly by the fault of the intestate in improperly loading the box before it was sent u.p, was occasioned by the negligence of fellow servants of the intestate whose duty it was at the top of the ledge to place this box upon the trucks.</p> <p>At the close of the plaintiff’s evidence the defendant moved the court to direct a verdict for that upon the evidence the plaintiff was not entitled to go to the jury. This motion the court overruled and the defendant excepted.</p> <p>The defendant claimed that if the negligence of the fellow servant at the top of the ledge contributed with the negligence of the defendant in not properly guarding the ends of the rails, the plaintiff could not recover, and requested the court to so instruct the jury. This the court declined to do, and instructed the jury that if the defendant’s negligence in not properly protecting the ends of the rails caused the in-■’’ury complained of, it was immaterial whether or not the neglect of the intestate’s fellow servants contributed to that injury, to which the defendant excepted.</p> <p>The court in its charge, after correctly stating the law as-to the duty of the defendant in reference to the intestate and what violation of that duty would amount to actionable negligence upon the part of the defendant, said: “ The defendant was to act as any prudent man would if he was both acting as an employer and an employe, not put his help in any danger or place of danger that he, if he were a prudent man, would not put himself, if he were doing all the work himself, both employer and employe.” The defendant excepted to the charge as to the measure of duty that the defendant owed the plaintiff’s intestate as his servant working-in the quarry.</p> <p>The court after correctly stating the rule as to the amount, of damages which the plaintiff was entitled to recover in in this action, added the following remarks upon the subject of interest and present worth, to which the defendant excepted :</p> <p>“Then in determining the sum, you are to consider that for a time between his death and now she does not get her pay for what he would earn and save until now. Of course there would be a little interest which would naturally come in to fully compensate her for that, but for the time to come-she gets her pay in advance, and you ought to give her only such a sum as you will find he would earn, five, ten or fifteen years hence, and reduce that to a sum which put at interest would come to the sum at the length of time; that is, reduce it to its present worth, because you give the sum in advance of the time that Mr. Morrisey would have earned it and received it if he had lived, been alive and able to labor and had performed the labor and received the money. Of course it should be reduced to what we used to call the present worth of it; at compound interest the sum would double in about twelve years, annual interest would take a little longer, simple interest -would take about sixteen and two-thirds; and if you find that he was going to earn as-much sixteen years from the time he was killed as he did •the last year, about one-half would compensate him at ■simple interest. I do not know that I could say to you that •any particular amount of interest is to be considered in getting at the present worth ; I do not know as the law would :say any particular amount, but you are to consider the fact that she gets the pay before the money is earned several years, in determining what would be a reasonable compensation and what is the pecuniary loss that she and her ■children sustain by reason of his death.</p> <p>“I simply use this matter of interest by way of illustration, .simply to show that in compensating her now you should discount to some extent what she would receive as the years :go on, year after year, and make it fair and reasonable, because it is only for the pecuniary loss that the law allows her and her children to recover.”</p> <p>The danger which befell the intestate was one of the hazards which he assumed as an incident to his employment. Carbine v. Ben. & Rut. R. R. Co., 61 Vt. 348; Latre-mouille v. Ben. & Rut. R. R. Co., 63 Vt. 346.</p> <p>The statement of the court that the defendant should put no employe at work where he would not work himself, was erroneous and misleading. Davis v. Railroad, 55 Vt. 84; 1 Lawson’s Rights, Rem. etc., s. 302 and note.</p> <p>The declaration stated all the facts necessary to entitle the plaintiff to sue and recover as administratrix for the benefit of the next of kin, under the statute. Westcott v. Cent. Vt. R. R. Co., 61 Vt. 438 ; Puterbaugh’s PI. & Pr. 437.</p> <p>The rule of law governing the defendant’s liability to his servant was correctly-stated by the court. Wood, Master & Servant, ss. 329, 345 ; Davis v. Cent. Vt. R. R. Co., 55 Vt. 84.</p> <p>The remark of the court that an employer should put his employe in no place where he would not put himself was simply an illustration and could not have misled the jury in this case, since the defendant did not contend but that he was negligent if the ends of the rails were unprotected.</p> <p>That the negligence of a fellow servant contributed with that of the master in causing the injury is no defence to a suit brought against the master.- i Shear. & Red. Neg., ss. 245, 247 ; Eaton v; Boston & Lowell R. R. Co.-, 11 Allen 500; Lanesr. Atlantic Works, in Mass. 136; Cayzer v. Taylor, 10 Gray 274; Elmer v. Lock, 135 Mass. 575; Booth v. Boston & Albany R. R. Co., 73 N. Y. 38 ; Cone v. D., L. & W. R. R. Co., 81 N. Y. 206; Grand Trunk R. R. v. Cummings, 106 U. S. 700; Perry v. Ricketts, 55 Ill. 234; Fordv. Fitchburg R. R. Co., no Mass. 240.</p>

<p> Rntry on diary. Mortgage. What included under accruing mortgage. Note payable to mortgagee and partner. Money received from property tor-tiously taken. Redemption. </p> <p>1. If an entry is in proper form and refers to proper matter of book account, it does not lose its character as independent evidence from the fact that it is made upon a diary and not upon the regular account books of the party making it. ■</p> <p>2. Under an accruing mortgage to himself alone the orator may include a promissory note payable to himself and a former deceased partner, or bearer, it not appearing how he holds the note.</p> <p>3. Upon a petition to foreclose a mortgage, it cannot be held that a note sought to be included is stale so long as the mortgage is a subsisting security for it.</p> <p>4. Under an accruing mortgage conditioned for the payment of all sums which the mortgagor may then or afterwards owe the mortgagee, the mortgagee may include a sum received by the mortgagor from the sale of property belonging to the mortgagee and taken by the mortgagor as a trespasser.</p> <p>5. If the petitioner holds a specific mortgage against one parcel, and an accruing mortgage against another parcel, the mortgagor may redeem the first parcel by paying the amount secured by that mortgage, but he cannot redeem the second parcel without paying the entire indebtedness.</p>

. Assumpsit. Heard upon the report of a referee at the March term, Essex county, 1892, Rowell, J. presiding. Judgment for the plaintiffs. The defendant excepts. The suit was predicated upon a promissory note given in part payment for two lots of corn. The defendant was a married woman whose husband was engaged in logging and had failed in this business the previous season.

<p> Equity. Reformation of insurance -policy. Misrepresentation of title. </p> <p>1. Equity will not reform a contract of insurance which was induced by a misrepresentation as to the title of the property insured, although such misrepresentation was made innocently.</p> <p>2. A father and son lived together upon the same farm and each owned certain personal property upon the farm. The son, at the suggestion of the father, placed insurance upon the entire property in his own name. It was represented to the agent who took the application for insurance that there was an understanding between the parties that the whole property was to belong to the son after the death of the father, but the master failed to find the fact of such an understanding. Held, in a suit after loss in the name of father and son, that equity would not reform the policy so as to cover the property of the father.</p>

Assumpsit. Pleas, the general issue and statute of limitations. Heard on the report of a referee at the February term, 1893, Ross, Ch. J., presiding. Judgment for the plaintiffs. The defendant excepts. The opinion states the case. The potatoes could not be credited upon the partnership account without the express assent of the defendant.

<p> Husband and wife. Partnership. Evidence. </p> <p>1. Under No. 140, St. 1884, relating to the capacity of married women to transact business, a husband and wife may jointly contract and be jointly sued as partners.</p> <p>2. In such a suit, as against the exception of the wife, her own declarations, the declarations of her husband, and the understanding of third persons brought home to her, and the fact that she was conducting another business so intermingled with the one in question that they could not be separated, are admissible.</p>

<p> Pleading. 'Justification by officer under -warrant. In what county bail should be tahen. </p> <p>i„ A demurrer, though special, reaches the first substantial defect in the pleadings.</p> <p>2. Where an officer under a warrant from the county court commanding him to arrest the respondent and have him before that court forthwith, arrests tire respondent, brings him to the place of holding such court but finds the court not in session, he may detain the respondent a reasonable time until he can ascertain whether it is possible to deliver him into court, and may lodge him in jail meantime for safe keeping.</p> <p>3. An officer cannot justify under a returnable process which has never been returned, but if the plea of justification alleges that the facts in reference to the issuance and service of a warrant more fully appear from the record and proceedings in the office to which the warrant should have been returned, that is an argumentative allegation that it has been so returned.</p> <p>4. A special demurrer to the replication is general as to the plea and does not reach argumentativeness in the plea.</p> <p>5. The action being trespass for false imprisonment and the plea a justification under a warrant commanding the defendant to have the plaintiff before the count)'- court forthwith, a replication that the defendant delayed service of the warrant until such court adjourned, is bad, at least unless it alleges such facts as show an abuse of process.</p> <p>6. A respondent when arrested upon a county court warrant, should be brought before the court issuing the warrant to determine the amount of bail. No other court has any jurisdiction of the case.</p> <p>7. A replication which is in substance a general traverse of the • plea, cannot be treated as a new assignment.</p>

<p>Action on the case. At the term to which the writ was returnable the plaintiff filed a new count, which the defendant moved to dismiss for that it contained a new cause of action. Heard upon this motion at the September term, 1892, Ross, Ch. J., presiding. The court held, as a matter of law, that the cause of action was the same and overruled the motion. The defendant excepts. The case appears in the opinion.</p> <p>Whether the new count was for the same cause of action was a question of fact, and the court erred in 'holding that it was as matter of law. Boyd v. Bartlett, 36 Vt. 12; Ly-coming Fire Ins-. Co. v. Billings, 61 Vt. 310; Geroux’s Admr. v. Graves, 62 Vt. 280; Hill v. Smith, 34 Vt. 535 ; Haskins v. Ferris, 23 Vt. 673 ; Dana v. McClure, 39 Vt. 197 : Brodek & Co. v. Hirchfield, 57 Vt. 12 ; Tillotson v. Prichard, 60 Vt. 94; McDermid v. Tinkham, 53 Vt. 615 ; Stephens v. Thompson et al., 28 Vt. 77 ; Trescott v. Baker, 29 Vt. 459, 463 ; Hill v. Smith & Carpenter, 34 Vt. 535, 540; Carter, Rice & Co. v. Hosford, 48 Vt. 433.</p> <p>The gist of the action set forth in each of the counts is the same, hence they may be joined. 2 Chitty PL (Ed. of 1859), P- 642 and note; 2 Greenl. Ev. s. 4 note.</p>

<p>Bill to set aside certain mortgages. Heard at the September term, 1892, upon the report of a special master. Rowell, chancellor, fro forma, dismissed the bill. The orator appeals.</p> <p>The intestate, George W. Curry, was the proprietor of a small retail store located at Shelburne Falls, and in the course of his business bought considerable quantities of goods from the defendants who were wholesale dealers located at Burlington. Having become indebted in this way to the defendants in the sum of $1,800, he executed to them as security on the 22d day of October, 1889, two mortgages, one of real estate and the other of his stock in trade.</p> <p>At the time of the execution of the chattel mortgage, it was agreed between Curry and the attorney of the defendr ants that Curry might continue to sell his goods covered by the chattel mortgage in the same way that he had done before, applying the proceeds upon the defendants’ debt; and Curry did so continue to sell the goods, but instead of applying the procéeds upon the defendants’ debt, used them to replenish his stock from time to time, a portion of the goods so bought being from the defendants.</p> <p>February 19, 1890, Curry filed his petition in insolvency, upon which, March 5th following, he was adjudged an insolvent debtor. .The orator was duly elected and qualified as assignee,, and .was proceeding in such capacity, when, on March 14, 1890, Curry died intestate. March 22d, the orator was appointed administrator upon his estate, and as such immediately took possession of the property.</p> <p>The indebtedness not having been satisfied, the defendants caused the property covered by their chattel mortgage to be sold on June 23, 1890. Previous to this time one of the defendants and a former clerk of Curry had been through the stock of goods and separated the articles bought after the execution of the mortgage from those covered by the mortgage, but owing to some misapprehension upon the part of the clerk, certain articles which had been purchased subsequently to the' execution o'f the mortgage were included with those supposed to'be covered by the mortgage. These were sold under the mortgage and the defendants received the avails of them.</p> <p>In view of the decision of the court, the facts reported by the master' bearing upon the question whether or not the conveyances were fraudulent under the statute are not material.</p> <p>The agreement that the mortgagor might continue to sell his goods notwithstanding the' mortgage was fraudulent and rendered the mortgage void. Jones Chat. Mort.; ss. 367, 386, 395, 399, 401,'402,'417 ; Robinson v.' Elliot, 22 Wall. 513; Robins v. Parker, 3 Met. 117 ; Sieinart sr. Druster, 23 Wis. 136'; Barnet v. Fergus,'51 Ill. '352; Smith v. Cooler, 27 Hun. 565 ; Ma'rston v. Vultee, 5 Bosw. 129.</p> <p>The defendants by not bringing forward their demurrer for argument have waived their right to insist that a court ox equity has not jurisdiction. Waterman v. .Buck, 63 Vt. 549; Underhills. VanCortlandt, 2 Johns. Ch. 369.</p> <p>The administrator can maintain suit to set aside these mortgages. An adjudication of insolvency and assignment to the assignee makes the estate an insolvent estate, and the propei'ty is to be treated as that of an insolvent estate, although the law says that it shall be passed, over to be administered upon by the probate court. R. L. ss. 1818-1820; Fryden v. Bard-win, 103 Ill. 325 ; 1 Sto. Eq. Jur., ss. 28, 29, 32, 33 ; Morse v. Slason, 13 Vt. 296; Jones on Liens, ss. 29, 30, 37, 93-</p> <p>The mortgages having been given in violation of statute law were void. 3 Am. and Eng. Enc. Law 872; Millers. Post, 1 Allen 434; Potter’s Dwarris, 157.</p> <p>The administrator cannot maintain' this suit. It is only the assignee in insolvency, as such, who can avoid the conveyances. Reed's. McIntyre, 98 U. S. 513; Stewart v. Platt, 101 U. S.; S. C. 19 B. R. 348.</p>

<p>Information for the keeping of a nuisance where intoxicating liquor was unlawfully sold. Plea, not guilty. Trial by jury at the March term, 1893, Taft, J., presiding. Verdict and judgment of guilty. The respondent excepts.</p> <p>The evidence of the prosecution tended to show that the respondent, together with his brother, kept a nuisance where intoxicating liquor was unlawfully sold, at No. 122 Main St., in the village of Montpelier, under the firm name of E. E. McGill & Co. The respondent testified that his brother was the owner and keeper of the' place, and that he had no interest in the business.</p> <p>One Evans testified in behalf of the prosecution that he had charge of the place from January 30, 1893, until March 4 of the same year; that when he made his contract for service he had some talk in the first place with the respon-; dent, and was referred by him to his brother, E. E. McGill, who, the respondent said, was interested with him 'in the place. Having so testified he was allowed to further testify, subject to the objection and exception of the respondent, that at the time of this conversation with the respondent the respondent said to him that he had several cases of whiskey of a certain brand put up in square bottles which he was going to place on sale at No. 122 Main St., and that subsequently the father of the respondent brought certain whiskey to that place for sale, which corresponded with this description.</p> <p>Charles Forbes, deputy collector of internal revenue, was allowed to testify, subject to the exception' of the respondent, that the respondent had made application in the name o'f E. E. McGill & Có., the sanie'being signed by the respondent; for a United States license for the sale of intoxicating liquor within the district embracing the territory of the State of Vermont; that he had received the application and the money from the respondent, and forw'arded the shme in regular course of business to the collector. " '• "</p> <p>The court improperly received the testimony ofiFórbes in reference to the government licence. The only proper evidence in that respect was the license itself, or a properly authenticated ’ record of the same. Harris v. Whitco-rHb et al., 4'Gray 434; Dnrkee v. Central Vt. Rd. Co., 29 Vt. 127; Whitford v. Tutin et al., 10 Bing. 395; Sebreesr. Dorr, 9 Wheaton 558; 1 Stark Ev. *329; 1 Greenl. Ev. s. 84.</p> <p>The testimony of Forbes was properly admitted as to the facts and circumstances which transpired at the time of the making of application for license by the respondent. 1 Stark. Ev. s. 7; Richardson v. Turn-pike Co., 6 Vt. 496; State v. Burpee, 65 Vt. 1.</p>

<p> Town grand juror. Oath of office. </p> <p>A town grand juror who has not taken the oath of office is not a grand juror defacto, and a complaint made by him will be quashed.</p>

<p> Trusts. Statute of limitations. Jurisdiction. Commingling of trust funds. Staleness. </p> <p>1. In case of an express trust the statute of limitations does not begin to run against the cesttd qtie trust, until the trustee has repudiated the trust and claims the estate adversely and such repudiation and adverse claim has been brought to the knowledge of the cesttd que trust, after the latter is sui jtiris and the connection so wholly at an end as to indicate that the cestui que trust is no longer susceptible to that influence which the trustee may have acquired in virtue of the trust relation.</p> <p>2. In case of an express trust equity will grant relief in favor of the heir of the cesttd que trust against the executor and legatees of the trustee, especially if an' injunction is asked for to prevent the diminution of the trust estate by the payment of legacies.</p> <p>3. If a trustee, under an expi'ess trust, commingles trust funds with his own, his entire estate, as against himself or those claiming under him, is thereby charged with the payment of the trust fund, and the burden is cast upon him or his representative of showing what part of the estate is not trust property.</p> <p>4. Under our equity practice the defence of staleness cannot be interposed by demurrer.</p>

Case for the obstruction of a way. Heard on the report of a referee at the June term, 1892, Taft, J., presiding. Judgment for the plaintiff. The defendant excepts. The opinion states the case. This is not the ordinary case where the invasion of a right imports damage. That rule rests upon the theory that the alleged invasion will divest the plaintiff in time of his right. Here this is not so, for (a) The right being created by deed would not be lost by mere non-user.

<p>Libel for divorce. Heard at the December term, 1892, Taft, J., presiding. Libel dismissed. The libellant excepts.</p>

Bill for an injunction. Heard upon bill and answer at the March term, 1893'. Taft, chancellor, dismissed the bill, pro forma. The orator appeals. The opinion states the case. The petitionee as a riparian owner at its dam and below has the right to insist that the water shall flow in its natural volume. ChatfieldM.

Petition to vacate a levy, returnable to and heard at the August term of the Lamoille County Supreme Court, 1893.

Debt for the penalty for interfering with the plaintiffs telegraph line given by R. L. s. 3)641. Heard at the June term, 1891, Ross, Ch. J., presiding, upon the defendant’s demurrer to the declaration. The demurrer was sustained, and the plaintiff excepted. The opinion states the case. The plaintiff need not negative in his declaration provisions which are purely matters of defence. Vavasouer v. Ormond, 6 B. & C. 431; Chitty PI. * pages 329, 356-360 ; Stephens PI. 443, 350.

Assumpsit. Heard upon the report of a referee at the December term, 1892, Munson, J., presiding. Judgment ■pro fo7'ma for the plaintiff. The defendant excepts. The plaintiff sought to recover compensation for sawing certain lumber, and damages for the non-performance of certain agreements upon the part of the defendant in reference to the sawing of this lumber.

Bill to restrain the defendants from infringing the water rights of the orator in the use of a mill privilege. Heard upon a master’s report at the February term, 1892, Orleans county. Start, chancellor, decreed for the orator. Appeal by the defendants. The head notes and opinion state the case, Herron granted the surplus water.

This was an action of assumpsit against James D. Cor-liss, in which the defendant, Phineas B. Richardson, was summoned as trustee. Heard upon the report of a commissioner at the June term, 1892, Tyler, J., presiding. Judgment -pro forma that the trustee was chargeable for $437.50. The defendant and trustee except. The plaintiffs sought to make the trustee chargeable with certain personal property received by him under a deed from James D. Corliss and wife.

Assumpsit. Plea, the general issue. Trial by court at the September term, 1892, Taft, J., presiding. Judgment for the defendant. The plaintiffs except.

Petition to annul a marriage for the reason that the female party had not arrived at the age of legal consent. Trial by court at the September term, 1892, Rowell, J., presiding. It appeared that the female was more than twelve years old at the time the marriage was contracted, and the court held as matter of law that she had then attained the age of legal consent and dismissed the petition. The petitioner excepts.

Assumpsit. Heard upon the report of a referee at the September term, 1892, Taft, J., presiding. Judgment for the defendant Maynard, and against the defendant Allen, who excepts. On July 1, 1889, the firm of Humphrey & Macomber, who had been and were then engaged in trade at Fair Haven, were owing a considerable number of debts and were in fact insolvent. Among other debts was one to the defendant Maynard and another to defendant Allen.

This was an action trespass quare clausum. Plea, the general issue. Trial by jury'at the December term, 1892, Taft, J., presiding. Verdict for the plaintiff and judgment on verdict. The defendant excepts. The plaintiff declared against the defendant for breaking and entering a part of lot No. 5 in Waterville, occupied by the plaintiff as a sugar-place. The defendant was the owner of lot No. ao.