Volume 66 — Vermont Reports

<p> Evidence. Conversation in presence of respondent. Rape. Failure to complain. Opportunity to escape. Habit. Evidence of character after crime. Charge of court. Inapplicable to evidence. As to faihire to complain. </p> <p>1. The indictment was for rape, and the state from the whole case, claimed, although its evidence did not directly show, that after the commission of the crime the respondents went in a certain direction. Held, that evidence of shouts by unknown persons from that direction at about the same „time was admissible, the expressions being similar to those used by the assailants.</p> <p>2. The claim of the state was that the assault was committed by the respondents jointly with one B., and the prosecution was allowed to show certain words between the prosecutrix and B. Held, as against the objection that the conversation was not in the hearing of the respondents, that the}’' were in the presence of each other and near enough to have heard and must be presumed to have done so.</p> <p>3. The alleged rape was on Friday, and the prosecutrix made no complaint until the following Tuesday ; and tlie respondents claimed that this tended to show no rape committed. Held, that the prosecutrix might testify in explanation, that she was ashamed to tell her relatives and affianced husband, and only told the chief of police when he was to act as her interpreter in court, and she supposed she must.</p> <p>4. One G., who was with the prosecutrix at the time of the assault, testified that he then recognized B. as one of the assailants. On the following morning, being with several persons, among whom was B., he said that none of the assailants were then present. As a reason for this the witness stated that he did not wish to alarm B. and cause him to flee. Held, that it might be shown that this witness afterwards pointed out B. to the officers, who arrested him upon that recognition.</p> <p>5. The state claimed that the respondent made an assault upon G. and the prosecutrix together, and that G'., after resisting as long as he could, ran for help. Held, that the respondents could not show that, before being taken for the rape, they were arrested for the assault upon G., gave bail, and made no attempt to escape.</p> <p>6. That a person is in the habit of doing a particular thing at a particular time, has no tendency to show that he did not do some other thing at some other time.</p> <p>7. If a respondent, in putting in issue his character, inquires of his witnesses as to his reputation both before and after the alleged crime, the state in rebuttal may do the like.</p> <p>8. Held, that the court correctly instructed the jury as to the weight to be given evidence of good character, and did not, by the words, “you will consider with reference to the young men of this class whether they would he likely to bring their good character to bear in reference to this very crime, if an opportunity presented itself,” intend or make any invidious distinction against the respondents. t</p> <p>9. That the prosecutrix did not make speedj^ complaint is not evidence tending to show that no rape has been committed, but simply a fact to be considered along with the circumstances surrounding it, as bearing upon her credibility as a witness.</p> <p>10. Although a request does not embody good law, if the court undertakes to charge upon its subject matter it must do so correctly.</p> <p>ix. Held, that the charge as to the failure of the prosecutrix to make complaint was erroneous, for that it did not instruct the jury that such failure bore upon tlie credibility of the prosecutrix as a witness, but did instruct them that it bore upon the question of consent, although that question was not in the case.</p> <p>12. The evidence of the state, including that of the prosecutrix, tended to show a violent struggle between her and her assailants before the commission of the crime. A physician who examined her carefully soon after the assault, testified to finding no marks of violence upon her person. In answer to a request from the respondent to charge that this both tended to impeach the prosecutrix and to show that no such crime was committed, the court instructed the jury that they should consider what was probable under such circumstances; that one person so assaulted would vigorously resist, while another might be so overcome as to offer no resistance. Held, erroneous, and not fairly applicable to the case made by the evidence.</p>

Ejectment. Plea, the general issue. Trial by court upon an agreed statement of facts, at the December term, Addison county, 1891, Ross, C. J., presiding. Judgment, -pro forma, for the plaintiff. The defendant excepts. In view of the manifest intent of the testator to divide his estate equally among his children and their lineal descendants, the words “without children” should be construed to mean without issue.

<p>Appeal from the action of commissioners for the allowance of claims against the estate of A. J. Wilcox. Heard at the June term, 1892, Munson, J., presiding, upon the report of an auditor and exceptions ■ of both parties thereto. The court overruled the exceptions of the plaintiffs, sustained the exceptions of the defendant, and gave judgment on the report for the defendant. The plaintiffs except.</p> <p>From the report of the auditor it appeared that the plaintiffs were brothers and partners in all their business transactions, including those with the intestate. The intestate was their uncle and lived on a farm near them during his lifetime. The intestate died in 1879, and f°r some fifteen years previous to that date there had been considerable deal between him and the plaintiffs, in reference to which no books of account had been kept by either party.</p> <p>Upon the trial of the cause before the auditor the plaintiffs offered a paper marked “Exhibit 1” which contained in debt and credit form a statement of account between themselves and the intestate. This statement consisted of six items of debit and seven items of credit, extending over a period of about fourteen years. The plaintiffs testified that this paper was in the handwriting of their attorney and had been drawn up by him since the decease of the said Wilcox and after the appointment of the administrator and the commissioners upon his estate.</p> <p>The plaintiffs further offered to show that said paper was made by their attorney in their presence and by their direction ; that the items, dates and amounts were put down as was directed; that they had not then, and never had any other book of account, 'that the entries on said paper were the original, or first entries of those transactions in reference to to which the entries were made, and that they had no regular book on which they kept accounts with the said Wilcox or any one else. They also offered in connection with this testimony said paper writing as evidence. The testimony and paper were excluded by the auditor, and the plaintiffs excepted.</p> <p>Upon the trial the plaintiffs introduced a specification of their account consisting of seven items of charge and seven items of credit, showing a balance due of $603.62, and introduced evidence in reference to these several items. Among other things it appeafed that in 1871 the plaintiffs and intestate began removing lumber from a lot of land of which they were tenants in common, and from which they removed lumber during that and the succeeding year.</p> <p>These operations were carried on under an agreement that the parties were to share in the expenses and profits in proportion to their respective interests in the land. The evidence tended to show, and the referee found that each of the parties contributed their proper shares towards the expense, but was unable to find what portion of the avails of the lumber the parties respectively received. One claim of the plaintiffs was for a considerable amount of this lumber claimed to have been received by the intestate, Wilcox, in excess of his share.</p> <p>The evidence in reference to all the items in the plaintiffs’ specifications, and to all items of deal between the parties, was so meagre and unsatisfactory that the auditor was unable to make, and did not make any finding in reference to any one of these particular items, or in reference to any items of deal between the parties.</p> <p>The plaintiffs, however, introduced several witnesses who testified that the intestate had said to them shortly before his death that he was indebted to the plaintiffs in the sum of about $400, and from this testimony the referee found that at that time the intestate was indebted to the plaintiffs in the sum of $400, which sum was to be diminished by an item of $10 in favor of the intestate, which accrued subsequent to that time.</p> <p>One John Wyman was permited to testify under the objection of the plaintiffs. The said Wyman testified as to one of the items in the plaintiffs’ specifications in reference to which the referee declined to make any finding upon the testimony.</p> <p>The plaintiffs excepted to the report of the auditor, first, because the auditor excluded exhibit i ; second, because the auditor received the testimony of John Wyman.</p> <p>Exhibit No. i was admissible. It is not necessary that entries should be made upon an account book in order to render them evidence. These entries were the first and only entries made by the plaintiffs in reference to these transactions. They were the original entries and were admissible for what they were worth. Bell v. McLeran, 3 Vt. 187; Houghton v. Paine’s Est., 29 Vt. 58; Kingsland v. Adams, 10 Vt. 201; Green v. Mills’ Est., 60 Vt. 442; Hunter v. Kittredge, 41 Vt. 360.</p> <p>The testimony of John Wyman was not admissible, Wiley v. Blunter, 57 Vt. 479; Wheeler v. Wheeler’s Est., 47 Vt. 637.</p> <p>In finding the sum due from the defendant to the plaintiffs the auditor did not adjust the partnership accounts of the parties. He finds the sum due simply as so much due without stating or being able to state what the origin of the indebtedness was. Hydeville Co. v. Barnes, 37 Vt. 588 ; Huxley v. Carman, 46 Vt. 462 ; Gates v. I.ockwood, 27 Vt. 286.</p> <p>Exhibit No. 1 was not admissible. R. L. ss. 1002, 1004; Woodbury v. Woodbury, 48 Vt. 94; Woodbury v. Wood-bury, 50 Vt. 152; Parris v. Bellows’ Est., 52 Vt. 351; Barnes v. Dow, 59 Vt. 530; Price v. Earl of Torrington, 1 Smith’s Lead. Cas. 535 et seq.; 1 Greenl. Ev. ss. 118, 119; Barber v. Bennett, 58 Vt. 476; Hunter v. ICittredge’s Est., 41 Vt. 359 ; Greens. Mills’ Est., 60 Vt. 440 ; Lajoham v. ICelley, 35 Vt. 195 ; Cross v. Bartholomew, 42 Vt. 206 ; Godding v. Orcutt, 44 Vt. 54.</p> <p>Partnership transactions cannot be adjusted in an action of book account. Green v. Chapman, 27 Vt. 236; Duryea v. Whitcomb, 31 Vt. 395 ; Hydevillc Co. v. Barnes, 37 Vt. 588; Htixley v. Carman, 46 Vt. 462.</p> <p>The auditor should state what items of account he allows. He cannot upon loose talk find a general balance due. Read v. Barlow, 1 Aik. 145 ; Macks v. Brush, 5 Vt. 70; Manufacturing Co. v. Bitck, 16 Vt. 290 ;' Croker v. Good-row, 42 Vt. 682.</p>

<p>Bill to settle the rights of the parties in a certain water power, and for an accounting for damages sustained by the orators in respect thereto. Heard at the June term, 1892, upon the pleadings and the report of a special master and exceptions thereto. Ross, chancellor, ‘‘to have the reservation in the deed construed, and the character of the damages recoverable determined before further hearing,” dismissed the bill. The orators appeal.</p> <p>The orators had the right under the reservation in their deed to use sufficient water to run their mills, provided that amount did not exceed the one hundred horse power limit; and they might run their mills as they were at the date oí the deed. They were under no obligation to lower their wheel pits for the benefit of the defendants. Rood et al. v. Johnson, 26 Vt. 73 1 Millers v. Lajham et al., 44 Vt. 416, 435-</p> <p>It is immaterial which wheel book was used by the master, for by neither of them have the orators exceeded their limit. Adams et el. v. Warner et al., 23 Vt. 395.</p> <p>The master improperly used the 1881 edition of LeffePs wheel book, after having failed to find that it was in existence when the deed was executed.</p>

<p> Evidence not tending to show total failure of consideration. Partialfailure of consideration can only be shown between original f arpies. </p> <p>x. The defendant' offered to show that the note in suit was given for the equity of redemption in a certain farm which the payee of the note had conveyed to him with covenants of warranty and seizin; that the said payee had induced him to take the conveyance and execute the note by falsely^ representing to him the condition of the farm and that he could give him immediate possession; that in fact the premises were worth less byr more than the amount of the note than they would have been had they been in the condition represented by the defendant, and that they were then in the possession of a tenant who held until the expiration of his term to the damage of the defendant more than the amount of the note. Held, that this evidence did not tend to show a total failure of consideration for,</p> <p>(«.) There was no offer to show that the premises, had they been in the condition represented, would have been worth more than the amount of the mortgage.</p> <p>{]>.') There having been no offer of rescission, the covenants of warranty and seizin still continue a consideration in favor of the defendants.</p> <p>ici) As to the failure to give possession, the defendants have their action for damages upon these same covenants.</p> <p>2. The defence of partial failure of consideration given by R. L. s. 911 can only be made in an action between the original parties to the instrument as shown by the instrument itself.</p>

<p> Partial failure of consideration only shown between original parties. </p> <p>Under R. L., s. 911, partial failure of consideration can only be shown in defence when the action is between the original parties to the instrument itself; following Hoyt v. McNally, supra.</p>

<p> When the election to take a bequest, not expressed to be in lieu of homestead, -will bar the widow from homestead. JBeqtiest of stock dividends for life carries them from testator’s death. Same as to rents. What was embraced in home -place. </p> <p>1 Where a testator devised to his widow the life use of his home place, consisting of about four and one-half acres of land, upon condition that she should pay the taxes, keep the buildings in repair, and not rent, nor suffer any other family to occupy the mansion house ; and the will expressed that the bequests to the widow were in lieu of her dower rights but did -not express that they were in lieu of home stead ; held, that the widow could not, after electing to take under the will, claim homestead, for it was the manifest intention of the testator that his grand-son, who was sole heir to the property, should take it intact after the expiration of the widow’s life interest.</p> <p>2. If a widow, to whom are bequeathed for life the dividends upon certain bank stock in lieu of dower and the provisions of an ante-nuptial contract, elects to take under the will, she is entitled to all dividends accruing after the death of the testator, including those which accrue between the time of his death and the making of her election.</p> <p>3. The same rule would apply to rents arising from real estate devised under the same conditions.</p> <p>4. And if the probate court has allowed her support, when, by the terms of the will, she was not entitled to it, that fact cannot, the estate being solvent, be considered in determining her rights to such dividends and rents.</p> <p>5^,, Held, that upon the agreed statment of facts the small tenement house and pasture were a part of the home place.</p>

General assumpsit. Plea, the general issue. Trial by jury at the September term, 1892, Chittenden county, Rowell, J., presiding. Verdict directed for the defendant, to which the plaintiff excepts. The plaintiff brought suit for the support of the adult pauper son of his intestate. The court directed a verdict upon the ground that there was no consideration for the promise relied upon.

<p> Practice. Questions ivpon rulings of referee how raised. Implied promise. Revision of previous decision. </p> <p>x. No question upon the rulings of a referee will be considered in the supreme court, unless submitted by the referee to the county court, or raised by an exception to his report in that court.</p> <p>2. An objection to the regularity of the appointment and procedure of a referee, not taken in the court below, will not be entertained in the supreme court.</p> <p>3. .The defendant, as administrator by appointment of the orphan’s court in Washington, D. C., collected certain claims for indemnity from the United States. The plaintiff had begun the prosecution of these claims under contract with the claimants that he should receive a certain part of whatever was realized, and had rendered material services under this contract. Just previous to the appointment of the defendant, the plaintiff had been prohibited from appearing before ihe court in which the claims were pending, and thereby incapacitated for their further prosecution. The plaintiff obtained no order from the orphan’s court for the payment of his services and the defendant did not in fact know the nature of the contract under which those services were rendered, but settled his account and paid over the funds upon the supposition that the plaintiff’s claim was against those who employed him. Hela', that there was no implied promise from the defendant to the plaintiff upon which an action of indebtitatus'assumpsit would lie.</p> <p>4. It is a well settled rule that the supreme court will not reverse or revise its decisions upon substantially the same facts upon which they were first rendered in the same case.</p>

<p> Replevin. Unlawful detention. </p> <p>One lawfully in the possession and use of an article does not subject himself to an action of replevin under R. L. s. 1230 as for an unlawful detention by continuing to use the article without reply after receiving a letter from the owner demanding it.</p>

Assumpsit. Pleas, the general issue and a special plea setting up a discharge in ins’olvency. Trial by court at the December term, 1892, Lamoille county, Taft, J., presiding. Judgment for the defendant. The plaintiff excepts. The opinion states the case. The defendant sustained a fiduciary relation to the plaintiff and the discharge is no bar. Bump Law & Pr. Bnk. 520. The debt was not created in a fiduciary capacity and the discharge is a bar.

Action on the case for injuries received by the plaintiff through the alleged insufficiency of a certain sluice which the defendant was bound to maintain. Plea, the general issue. Trial by jury at the September term, 1892, Orleans county, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

<p>This was an appeal from a decree of the probate court •settling the account of Smith ITodges, trustee. Heard at the December term, 1892, Windsor county, upon the report ■of a commissioner and exceptions thereto, Tyler, J., presiding. Judgment that the report be accepted, and that nothing is due from the said Smith Hodges, trustee. The «state of Polly Hodges, appellant, excepts.</p> <p>Edmund Hodges died February 22, 1864, leaving a will of which Smith Hodges was appointed executor by the probate court. March n, 1867, said executor settled his account in the probate court, and there was found upon such settlement three thousand six hundred ten dollars and sixty-five cents remaining in his hands. Thereupon he was ordered by decree of said probate coui't to account to Polly Hodges, widow of the deceased, for the use and income of said three thousand six hundred ten dollars and sixty-five cents during her life time, agreeably to the provisions of the will of the testator: The accounting before this commissioner was between the estate of Polly Hodges and the said Smith Hodges, executor and trustee, it being claimed upon the part of the said Polly Hodges’ estate that the said Smith Hodges had not in his lifetime paid over to her the income of said trust fund.</p> <p>Polly Hodges died May 20, 1888, and it appeared that during a greater part of the time between the settlement of his account in the probate court, in 1867, and the date of her death, Smith Hodges had mingled the trust funds with his own estate and had kept no separate accounts in reference to the same. His claim was that, in supporting Polly Hodges, who was his mother, he had paid over to her a sum in excess of what the income of the fund in his hands would reasonably be. He also claimed several deductions by reason of losses of income, all of which were disallowed by the commissioner, except one.</p> <p>On June 2, 1877, Smith Hodges loaned one Ford one thousand dollars of money belonging to the trust fund, and four hundred eighty-three dollars of his own money, and took Ford’s note, payable to himself, personally, for the whole sum, one thousand four hundred eighty-three dollars, and a mortgage of real estate situated in the village of Woodstock to secure said note. At the time Hodges took this mortgage he made reasonable inquiry as to the value of the property mortgaged, and came to the conclusion that it was worth two thousand two hundred dollars, and was good security for the sum loaned. Soon after the execution of this mortgage Ford became insolvent and Hodges was ultimately obliged to take á deed of the property in payment of the note. This was in 1882, and he held title to the property from then until March, 1884, when he sold it for one thousand two hundred dollars. Taking into account the amount which he had expended in connection with the property and the amount which he had received from the property, there was a net loss of principal, besides a loss of interest from June 2, 1877, to the date of the sale, March 27, 1884, which the commissioner held should be deducted from the income of the trust fund.</p> <p>The commissioner found that Hodges acted with reasonable prudence in negotiating the loan and in caring for and disposing of the property, and that the loss was occasioned mainly or wholly by the depreciation of the value of the mortgaged property and by the insolvency of the mortgagor.</p> <p>The allowance of the loss on the Ford loan was erroneous. By mingling the trust funds with his own, the trustee became responsible, personally, for whatever loss might occur. 1 Perry Trusts, ss. 447, 463; Carson v. Marshall, 37 N. Y. 213 ; Doud v. Holmes, Admx., 63 N. Y. 635.</p> <p>Smith Hodges was not a competent witness in his own behalf. Johnson, Admr., v. Dexter, 37 Vt. 641; Fitzsimmons v. Southwick, 38 Vt. 509; French, Admr., v. Barron & Eaton, 49 Vt. 471; Melendy, Admr., v. Spaulding, 54 Vt. 517 ; Hollister, Admr., v. Young, 41 Vt. 156; Godfrey et al. v. Downer, Admr., 47 Vt. 653 ; Woodbury v. Woodbury’s Est„ 50 Vt. 152 ; Hall v. Hamblett, 51 Vt. 589; Parris v. Bellow’s Est., 52 Vt. 351; Pember v. Congdon, 55 Vt. 58.</p>

<p> Appeal from order of probate court setting out homestead. Amendment of record. Proceedings in county court. </p> <p>1. Where, upon an appeal from the probate court, the certified copy of the order of that court allowing the appeal does not specify from what order the appeal is taken, .the county court may allow its record to be amended by filing a new certified copy of the order.</p> <p>2. Under R. L., s. 2270, an appeal lies from an order of the probate court accepting the report o£ commissioners appointed to set out homestead and dower.</p> <p>3. The county court, upon such appeal, may proceed in the manner provided by statute for proceedings in the probate court.</p>

Petition to restrain commissioners appointed by the probate court from setting out a homestead, and for a sale of the premises. Heard upon bill, answers and a master’s report at the March term, 1892, Rutland county. Taft, chancellor, dismissed, the bill with costs. The orator appeals.

<p>Action for the collection of a tax brought by the tax collector for the town of Chester, under the provisions of R. L., ss. 407-401. Plea, the general issue. Trial by jury at the May terra, 1893, Windsor county, Munson, J., presiding. The court directed a verdict for the plaintiff, and the defendant excepted.</p> <p>Upon the trial the defendant offered to show that the quarry was operated by the Union Soapstone Company at the rate of one dollar and fifty cents per ton for the stone taken out; that the listers ascertained the amount paid for the use of the quarry under this contract and assessed the quarry at such a valuation as would amount, at six per cent, to this sum, without any reference to its actual value in money. The court excluded the testimony, to which the defendant excepted.</p> <p>The other questions raised and decided sufficiently appear in the opinion.</p> <p>The defendant’s interest in the quarry could not be measured by metes and bounds and was not assessable as an interest in real estate. Hughs v. Vail, 57 Vt. 44; Clove Spring Iron Works v. Cole, 56 Vt. 603 ; McGee v. Salem, 149 Mass. 238; Flanders v. Cross, 10 Cush. 514.</p> <p>The quarry as a whole should have been set to the owners, not an undivided interest to this defendant. Cool. Tax. 288; Parker v. Baxter et al., 2 Gray 188, 189.</p> <p>Evidence as to how the listers arrived at their valuation should have been admitted. It did not tend to show merely an error in judgment as to value, but that they proceeded on a wrong basis and without jurisdiction. Cool. Tax., 157, 528, 529; Henry v. Chester 15 Vt. 469; R. L., s. 268.</p> <p>The copy of notice was improperly admitted. Green. Ev., s. 562.</p> <p>An error in stating the quantity of land will not vitiate the list. Williston v. Colkeit, 9 Pa. St. 38; Brown v. Hays, 66 Pa. St. 229; Gilman v. ReoJJelle, 18 Mich. 145.</p> <p>The contents of a mere notice may be proved without notice to produce the original. 1 Greenl. Ev., s. 561 ; 1 Thomp. Tr., s. 775 ; Colling v. Treweek, 6 B. & C. 398; Bank v. Cha Jin, 3 Pick. 180; .Jhiinley v. Atkins, 9 Gray 370; Bentley v. White, 54 Vt. 564.</p> <p>The valuation of the listers could not be attacked in this suit. R. L., s. 297, 298; Day v. Peasley, 54 Vt. 310; Cool. Tax., 748; Henry v. Chester, 15 Vt. 460; Fuller v. Gould, 20 Vt. 643 ; Wilson v. Wheeler, 55 Vt. 446; Fulham v. Howe, 60 Vt. 351; Taylor v. Moore, 63 Vt. 60.</p>

<p>Action, assumpsit. Heard upon motion that the same be continued, to await the termination of trustee proceedings, at the May term, 1893, Windsor county, Munson, J., presiding. The motion was granted and the case continued. The plaintiff excepts.</p> <p>The plaintiff brought suit against the defendant, and the cause was referred. The referee found a sum due the plaintiff and thereupon one Whitcomb sued the plaintiff and summoned the defendant as trustee. At the May term, that being the term at which the referee’s report was filed, Whitcomb entered and asked that the suit be continued pending his own trustee suit. The plaintiff claimed that, inasmuch as Whitcomb’s suit had not yet been entered in court, the court had no right, as a matter of law, to continue his suit. The court held otherwise, and the plaintiff excepted.</p> <p>Whitcomb had no suit in court, and courts of law cannot take cognizance of suits until they are entered in court. Wilson v. Rutland and Addison Fire Ins. Co., 19 Vt. 177 ; Wadsworth v. Clark and Tr., 14 Vt. 139.</p> <p>The court had power and ought to have continued the suit pending the trustee process. R. L., ss. 1125-7; Twomhley & Sax v. Clark, 13 Vt. 124; Wadsworth v. Clark, Tr., 14 Vt. 139; Spicer v. Spicer, 23 Vt. 678; Jones & Dow v. Wood, 30 Vt. 268.</p>

<p>Petition for divorce. Heard at the June term., 1892, Bennington county, Munson, J., presiding. The court dismissed the petition as matter of law and the petitioner excepted.</p> <p>The following facts were found :</p> <p>“The testimony of the petitioner tended to show that her husband had been an intemperate, man during all their married life, and had been a frequent visitor of liquor saloons, and was often away from home until late at night, sometimes remaining all night; that in 1880 he choked her, without cause, until she was nearly senseless ; that on one occasion, in the winter of 1890, he returned home late at night in a state of intoxication and assaulted her with a heavy shoe or rubber while she was in bed; that on one occasion during the same winter, under similar circumstances, he struck her with his hands, without cause or provocation; and that on the 15th day of June, 1890, he assaulted her with a bamboo cane, and bruised and blackened her face and other parts of her person. The petitioner testified that this was without cause or provocation, and as there was no evidence to the contrary we find the fact to be so. On the following day the wife made complaint against her husband to the town grand juror of Bennington for assault, and a warrant was therefor issued and placed in the officer’s hands, which was duly served and the petitionee was duly arraigned thereupon and pleaded guilty thereto, whereupon final judgment of guilty was passed against him and he was sentenced to pay a fine of five dollars and costs, which he paid.</p> <p>“Petitioner further testified that while these proceedings were pending the petionee returned late one night in a state of intoxication and threatened her life if she did not withdraw the complaint. From said 15th day of June until the day of final separation, which was on the 23d day of the same June, the wife avoided the presence of her husband as far as possible ; sometimes remained in hiding until he had returned at night and then went to her own bed by stealth, and continued this conduct until the day of final separation, as aforesaid. There was no evidence that the parties occupied the same sleeping room, or became reconciled in any manner, after the 15th day of June, 1890.</p> <p>“ One ground of defence was that the petitioner had herself violated the marriage contract by committing adultery with one Rounds, who had for some time boarded in the petitionee’s family, and the petionee’s evidence tended to show that the petitioner had, for some months before the separation, entertained an affection for Rounds, and been guilty of indiscreet and questionable conduct in connection with Rounds, not known to the petitionee. On the day of separation, and shortly before the petitioner left the house, the petitionee found, in a place of concealment, an undelivered letter addressed to Rounds, indicating an adulterous disposition and purpose, the discovery of which was at once made known to the wife.</p> <p>“The court failed to find the fact of adultery established,, but did find that on the day of final separation, and at the time of leaving, the petitioner had a formed intention to' enter upon an adulterous connection with Rounds if circumstances favored; but the court found acts of cruel and brutal treatment to have been committed by the husband when in a state of intoxication, before the petitioner formed this adulterous intention.</p> <p>“The court found the claim of intolerable severity fully established, and considered the petitioner entitled to a divorce on that ground, unless the fact of the petitioner’s remaining at the petitionee’s house from the 15th day of June to the 23d day of June, 1890, under the circumstances stated, amounted to a condonation ; or unless the adulterous intention, existing as above stated, constituted such misconduct on the part of the petitioner as would disentitle her to a bill as a matter of law.”</p> <p>There was no condonation. 2 Bish., Mar. & Div., s. 269 ; Keats v. Keats, 1 Swab, and T. 334-346; Langdon v. Langdon, 25. Vt. 678; Ellis v. Ellis, 4 Swab, and T. 154-157 ; W-ilson v. Wilson, 16 R. I. 122, Ruarles v. ¿Liarles, 19 Ala. 363 ; Armstrong v. Armstrong, 27 Ind. 186; Betz v. Betz, 2 Rob. (N. Y.) 694; Johns v. Johns, 29 Ga. 718.</p> <p>The conduct of the petitioner does not afford a complete bar in recrimination, for it did not amount to a statutory ground for divorce. Tillison v. Tillison, 63 Vt. 411 ; 2 Bish. Mar. and Div., s. 381 ; Olive v. Olive, x Hag. 361; Holden v. Holden, 1 Hag. 455 j Turton v. Turton, 3 Hag. 338; Dysart v. Dysart, 1 Rob. Ecc. 106, 143 ; Goodhall v. Goodhall, 2 Lee 384; Homes v. Homes, 2 Lee 116; Sofwith v. Sojywith, 2 Swab, and T. 160 ; Stone v.' Stone, 3 Notes Cas. 278; Bartlee v. Bartlee, 1 Adams 305 ; Pollock v. Pollock, 71 N. Y. 137-141; Graves’Appeal, 37 Pa. St. 443-447; Butler v. Butler, 1 Pars. Sel. Cas. 329; Flavell v. Flavell, 7 C. E. Green 599; Derby v. Derby, 21 N. J. Eq. 36-40; Cummins v. Cummins, 2 M’Qarter 138; Moores v. Moores, 16 N. J. Eq. 275; Adams v. Adams, 17 N. J. Eq. 324; Jones v. Jones, 18 N. J. Eq. 33-46; Logan v. I^ogan, 2 B. Mon. 146; Fishlie v. Fish-lie, 2 Litt. 337.</p>

<p>Appeal from an order of the probate court for the district of Fair Haven, denying the petition of Katie E. Hughes, the widow of H. G. Hughes, that the interest of her husband in certain copartnership real estate be treated as personal property in the distribution of his estate. Heard upon an agreed statement of facts at the March term, 1892, Rutland county, Ross, C. J., presiding. Petition dismissed pro forma. The petitioner excepts.</p> <p>Real estate contributed by way of original capital becomes partnership property. Wiegandv. Copeland, 14 Fed. Rep. 118; Sigourney v. Munn, 7 Conn. 11; Buchan v. Sumner, 2 Barb. Ch. 165 ; Grissom v. Moore, 106 Ind. 296.</p> <p>Partnership real estate is distributed like personal property. Rice v. Barnard, 20 Vt. 479; Dewey v. Dewey, 35 Vt. 555 ; 1 Sto. Eq. Jur. s. 674 and note; 2 Lindley Part., 343 ; Darby v. Darby, 3 Drew 495 y Attorney Generals. Hubbock, 10 Q;. B. Div. 473 ; Murtagh s. Costello, 7 Irish L. R. 428 ; Allen s Withrow, no U. S. 119 ; Paige s. Paige, 17 Iowa 318 ; Burnside s. Merrick, 4 Met. 537 ; Dyer s. Clark, 5 Met. 562 ; Howard s. Priest, 5 Met. 582 ; Mallory s. Russell, 71 Iowa 63 ; Re Ransom, 17 Fed. Rep. 331; Sto. Part. 95, in, 148, n. p. 96.</p> <p>According to the American doctrine copartnership real' estate is not treated as personalty of a deceased partner’s estate. Bates Part., s. 297 ; Wilcox s. Wilcox, 13 Allen 252, 255 ; Harris s. Harris, 153 Mass. 443 ; Tillinghast s. Champlin, 4 R. I. 207 ; Buchan s. Sumner, 2 Barb. Ch. 165, 200-206; Campbell s. Campbell, 30 N. J. Eq. 417 ; Youngs. Brasher, (Mo.) 21 S. W. 1104.</p> <p>In this case the partners have expressly declared that the real estate in question shall not be personal property upon the winding up of the partnership.</p>

Bill for specific performance. Heard upon the pleadings and a master’s report at the September term, 1893, Orleans-county. Taft, chancellor, decreed for the orators, pro* forma. The defendant appeals.

<p>Petition for the assessment of damages for the taking ot water under its charter by the village of Rutland. Heard upon the report of commissioners at the September term, 1893, Rutland county, Tyler, J., presiding. Judgment pro forma for the defendant. The petitioner excepts.</p> <p>Prior to 1891 the village of Rutland had derived its water supply for the most part from the Mendo'n branch of East creek, in the town of Rutland. This supply had become insufficient, and, for the purpose of increasing it, in the summer of 1891 the village constructed, a reservoir into which it conducted the water from the aforesaid Mendon branch by means of a canal, and from which it carried it by means of a main, diminishing from twenty-four inches to twelve inches in diameter, into a distributing reservoir near the village. The petitioner was the owner of mills operated by water power situated upon East creek below the point where the water was thus taken out, and his alleged damages were that he was deprived of the use of the water for the operation of his mills. The reservoir and canal were so constructed that what water did not run through the main returned to the stream above the petitioner’s mills.</p> <p>The commissioners found that the petitioner was thus damaged; that if the village took all the water which could run through its main, his damages would amount to twenty-five hundred dollars, but that the village was not then using this amount of water and in all probability would not in the future, and that upon this basis the damages were two thousand dollars.</p> <p>The provisions of the charter under which the water was appropriated appear in the opinion.</p> <p>There can be but one assessment of damages, and the petitioner is entitled to whatever the village can injure him as it has constructed its system. Otherwise he has no redress in the future. Lewis Em. Dom., 477, 565 ; Bailey v. Woburn, 126 Mass. 416; Ipswich Mills v. County Commissioners, 108 Mass. 363.</p>

<p>Trespass quare clausit,m. Pleas, the general issue, and that the trespasses complained of were done in the construction of a public highway. Trial by court at the March term, 1893, Washington county, Taft, J., presiding. Judgment for the defendant. The plaintiff excepts. The facts appear in the opinion.</p> <p>The survey of the highway was insufficient, in that no-permanent monuments are referred to. State v. Lincoln, 33 Vt. 653 ; Wilson v. City of Lynn, 119 Mass. 174.</p> <p>The action of the selectmen in laying out the highway is in the nature of a judgment which cannot be attacked collaterally. States. Vernon, 25 Vt. 244; Kidder v. Jennison et al., 21 Vt. 108 ; Haynes v. Lassell, 29 Vt. 157 ; 1 Black Judg., ss. 245, 246.</p> <p>If the plaintiff is aggrieved he has mistaken his remedy. R. L., ss. 2959, 2932; Rand et al. v. Lownshend, 26 Vt. 670 ; Brock v. Barnet, 57 Vt. 172 ; Slicer v. Hyde Park, 55 Vt. 481; Kidder v. Jennison et al., 21 Vt. 108.</p> <p>The record shows that the plaintiff was heard, and by failing to object then to the notice he has lost his right to do-so. Brock v. Barnet, 57 Vt. 172 ; Slicer v. Llyde Park, 55 Vt. 481.</p>

<p>General assumpsit. Plea, the general issue. Trial by court at the December term, 1893, Orange county, Thompson, J., presiding. Judgment for the plaintiff. The defendants except. The facts appear in the opinion.</p> <p>The plaintiff could not maintain this action at law in his. sole name against the defendants, fudd & Harris v. Wilson, 6 Vt. 185; Estes v. Whipple, 12 Vt. 373; Spear v* Newell, 13 Vt. 288; Die. Par. to Ac., 155.</p> <p>If the plaintiff has any action in virtue of paper “A,” it is covenant upon the sealed instrument. McKay v. Darling, 65 Vt. 639; Myrick v. Slason, 19 Vt. 121; Camp v. Bar-her, 21 Vt. 469; Kingv. Railroad Co., 51 Vt. 369; Wood v. Edwards, 19 Johns. 205 ; 8haeffer v. Geisenberh, 47 Pa. St. 500; Codman v. Jenkind, 14 Mass. 93; Young v. Preston, 4 Cranch 239 ; Stephen Pleading, 115, 118 ; 4 Am. and Eng. Enc. of L., 463 ; Rankin v. Darnell, 11 B. Mon. 30.</p> <p>Covenant upon the sealed instrument will not lie, for none of its covenants have been broken. Wright v. Chumpsty, 41 Pa. 102 ; Wheeler v. Wheeler, m Mass. 247 ; Colgrove v. Fillmore, 1 Aik. 347 ; Wilby v. Phinney, 15 Mass. 116; Schmidt v. Glade, 126 111. 485 ; Pope v. Randolph, 13 Ala. 214.</p> <p>The court found that Fraser & Co. owed the debt to Beede & Co. By the terms of the dissolution the plaintiff became the owner of the debt. From those facts the law implies the promise upon which the action is based. State v. Village of St. Johnsbury, 59 Vt. 332 ; Buck v. Brooks, 70 Mich. 449; Dermott v. Jones, 2 Wall. 1; Allen v. Stenyer, 74 111. 119; Hall v. Mastton, 17 Mass. 574; Williams v. Henshaw, 11 Pick. 79 ; Cutler v. Powell, 2 Smith’s Lea. Cas. 61, and note; Knapp v. Hobbs, 50 N. H. 476.</p>

<p>Assumpsit upon a promissory note, coming into the county court by appeal from the judgment of a justice. Heard at the September term, 1893, Orleans county, Taft, J., presiding. The defendant moved to dismiss, which motion was overruled and the defendant excepted.</p> <p>It appeared from the record of the justice that the case was twice continued, once by agreement of parties and once by the court, and that after those two continuances the defendant moved to dismiss for that the writ improperly issued as a capias.</p> <p>The other facts are sufficiently stated in the opinion.</p> <p>The record showed when the affidavit was filed and when the writ issued and a motion to dismiss was the proper way to take advantage of the defect. Bent v. Bent, 43 Vt. 44; Barnet v. Emery, 43 Vt. 178; Perkins v. 'Walker, 16 Vt. •249.</p> <p>The court obtained no jurisdiction of the defendant’s body. Aiken v. Richardson, 15 Vt. 500; Adams v. Whit-comb, 46 Vt. 708 ; Muzzey v. Howard, 42 Vt. 22.</p> <p>Consent cannot confer jurisdiction. Glidden v. Elkins, 2 Tyler 218 ; Thayer v. Montgomery, 26 Vt. 491.</p> <p>By not objecting at the first opportunity the defendant has waived his right to object. Dow v. School District, 46 Vt. 108 ; Monlfelier v. Andrews, 16 Vt. 605 ; Bennet, White & Co. v. Allen, 30 Vt. 684; Alexander v. School District, 62 Vt. 276; Pollard v. Wilder, 17 Vt. 48 ; Wheelock v. Sears, 19 Vt. 559 ; Hill v. Morey, 26 Vt. 178 ; Huntley v. Henry ■et al., 37 Vt. 165 ; Stanton v. Bridge Co., 47 Vt. 172 ; Fletcher v. Baxter, 2 Aik. 224; Wood v. Kinsman & Lamb, 5 Vt. 588; Lyman v. Central Vt. Rd. Co., 59 Vt. 167; State v. Ward, 60 Vt. 142; 2 Gould’s PL, s. 37; 1 Chitty PL, 441.</p> <p>The writ might issue upon the affidavit filed. Whitcomb v. Cook, 39 Vt. 585.</p>

Assumpsit. Heard upon the report of a referee at the September term, 1893, Washington county, Rowell, J., presiding. Judgment for the plaintiff for the sum named in the report. The defendant excepts. The referee’s report was as follows : “ The defendants are partners.

<p>Liability of municipality. For defective highways. For town hall rented for private purposes. . Abutter not liable for defective sidewalk.</p> <p>1. The plaintiff was injured by slipping upon the sidewalk, in consequence of its unsafe condition, from two to four feet from the entrance of the town hall in the village of Barre. Held, that the defendant was not liable, by reason of any neglect to properly care for the highway, for,</p> <p>(0) By the terms of its charter the village of Barre was charged with the maintenance of its streets and the town relieved from liability in reference thereto, and,</p> <p>('b) However that might be, there was no statutory liability on the part of the municipality for neglect in the maintenance of the sidewalk and hence no remedy to the plaintiff.</p> <p>2. If a town rents its town hall for private purposes it is under the same liability in respect to it while being so used that a private individual would be.</p> <p>3. In the absence of an ordinance charging him with some duty in respect to it, an abutter is not liable for the safe condition of the sidewalk in front of his premises, even as to one who is using it for the purpose of obtaining access to those premises at his invitation.</p>

Information for the illegal furnishing of intoxicating liquor. Plea, not guilty. Trial by jury at the June term, 1889, Addison county, Taft, J., presiding. Verdict, guilty.

Petition for annuling a marriage upon the ground that the consent of the petitioner to the marriage was obtained by fraud and that the petitionee was, at the time of contracting the marriage, physically incapable of entering into the marriage state. Heard at the September term, Windham county, 1891, Rowell, J., presiding. Upon the facts found the court dismissed the petition and the petitioner excepted. The opinion states the case.

Petition for mandamus. The petitionee was, at the annual March meeting, in the year 1892, elected treasurer of school district No. 13, in the town of Barre, and continued to hold that office until April 17, 1893, when he resigned, and his resignation was accepted. September 5, 1893, at a special meeting held for that purpose, the petitioner was elected treasurer of said district to fill the vacancy caused by the resignation of the petitionee.

Debt on replevin bond. Trial by jury at the June term, 1893, Bennington county, Thompson, J., presiding.

Bill in chancery. Heard upon pleadings and a master’s report at the September term, Washington county, 1892. Ross, chancellor, decreed for the orator. The defendants appeal. The controversy was in reference to lot 52 of the second division of lands in the town of Worcester, embracing about three hundred acres.

Petition to the supreme court for the county of Chittenden to bring forward a cause upon its docket and correct the judgment of the court therein. The case, 64 Vt. 362, was first brought before a justice of the peace and came upon appeal into the county court. There the defendant pleaded that the justice had no jurisdiction for that he was a resident of one of the towns interested in the event of the suit, and that the suit should therefore abate.

Petition for divorce by the wife upon the ground of wilful refusal to support. Heard at the December term, 1892, Windsor county, Thompson, J., presiding. The petitioner was granted a divorce and one thousand dollars permanent alimony. To the allowance of alimony the petitionee excepted for that, in view of the ante-nuptial contract, it could not be given as matter of law. The question decided appears from the opinion.

Bill in chancery for the appointment of a trustee and the execution of a trust. ' Heard upon bill and answer at the April term, 1893, Chittenden county. Tyler, chancellor, decreed that the trust property should be distributed per stirpes among the surviving children and the issue of those deceased. The defendants appeal.

Petition for mandamus to compel the defendant, as clerk of the Washington County Court, to issue a certified execution. Heard upon an agreed statement of facts, which are fully stated in the opinion. The scire facias revived the original judgment, and the defendant should issue the certified execution. R. L., s. 1443; Free. Judg., s. 442; Black. Judg., s. 498; 1 Free. Ex., s. 92.

Trespass quare clausum. Plea, the general issue. Trial by jury at the September term, 1892, Chittenden county, Rowell, J., présiding. The jury returned a special verdict upon which the court gave judgment for the defendants. The plaintiff excepts. The defendants must show affirmatively that the statutes relative to the taking of land for highways had been complied with. Kidder v. yennison, 21 Vt. 108; R. L., s. 2927. The selectmen had authority to re-survey this street.

Bill in chancery. Heard upon the pleadings and a master’s report at the September term, 1892, Franklin county. Start, chancellor, dismissed the bill pro forma. The orator appeals. The orator was the owner of a farm situated just outside the limits of the village of St. Albans. Through this farm the selectmen of the town ot St. Albans had laid a highway which was called Thorpe avenue, and which connected with one of the streets of the village.

Covenant broken. Heard upon general demurrer to the declaration, at the September term, 1892, Rutland county, Rowell, J., presiding. Demurrer sustained and judgment for the defendant. The plaintiff excepts. Reasonably construed in view of the situation of the parties the covenant in the deed is against an incumbrance like a right of way.

Assumpsit. Plea, the general issue. Trial by jury at the June term, 1893, Addison county, Tyler, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. The plaintiff sued on an implied warranty of four hundred stone jars furnished by the defendant to the plaintiff for packing and storing of butter.

Trover for certain logs. Plea, the general issue. Heard upon the report of a referee at the September term, 1892, Windham county, Munson, J., presiding. Judgment for the plaintiff. The defendant excepts. The case appears in the opinion. The sale was a conditional one of personal property, so-far as the timber was concerned.

Trover for the conversion of a horse. Heard upon the report of a referee at the September term, Washington county, 1892, Rowell, J., presiding. The court gave judgment for the plaintiff and further adjudged, upon the facts reported by the referee, that the cause of action arose from the wilful and malicious act of the defendant, and that a certified execution should issue. To the action of the court in both these particulars the defendant excepted.

Heard upon motion to dismiss the appeal for that no bond had been filed, at the September term, 1893, Orleans county, Taft, J., presiding. The appeal was dismissed and the appellant excepted. The decree was made March 28, 1893, and an appeal at once taken.

<p> Varying written contract by farol. Lien note. JVo’tJfc the contract. </p> <p>1. Where, upon, an exchange of. horses, a lien note is given by one of the parties upon the horse received, by him, as security for boot money, oral evidence may be given as to the ' terms and conditions of the trade, and this is not a varying of the written instrument by parol, for the purpose of the note was not to state the contract of exchange, but merely for the purpose of security.</p> <p>2. The maker of a promissory note may show the terms and conditions on which it was delivered, and that the payee or holder has no right to it except for the accomplishment of a particular purpose.</p>

Debt on two recognizances. Pleas, the general issue and offset. Trial by jury at the September term, 1893, Franklin county, Ross, C. J., presiding. Verdict for the plaintiff on its declaration and for the defendant on his declaration in offset. The court gave the defendant judgment for the balance remaining after deducting the amount found due the plaintiff from the amount found due the defendant. The plaintiff excepts.' The opinion states the case. See same case, 65 Vt. 222.

Petition for divorce for refusal to support. Heard at the September term, 1893, Washington county, Rowell, J., presiding. The court dismissed the petition as matter of law and the petitioner excepted. The court found the following facts : “Petitionee has been in state prison for three and a half years under a life sentence for slaying petitioner’s former husband.

The above three cases were all actions in assumpsit upon contracts for the sale of nursery stock, and were heard upon the report of a referee filed in each at the December term, 1892, Caledonia county, Taft, J., presiding. Judgment in each case for the plaintiffs for the amount named in the report. The defendants except. This contract of sale had reference to an interest in land and must have been in writing. Lee v. Risdon, 7 Taunt. 191 ; 1 Benj.

General assumpsit for an assessment upon the shares of the defendant in the capital stock of the plaintiff. Plea, the general issue. Trial by jury at the May term, 1892, Windsor county, Start, J., presiding. At the close of the testimony the court directed a verdict for the defendant upon the ground that no action could be sustained without an express promise, which the testimony did not tend to show. The plaintiff excepts.

Case for the negligence of defendant. Plea, the general issue. Trial by jury at the March term, 1892, Rutland county, Ross, C. J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. The plaintiff was employed by the defendant in finishing small castings, in the course of which he had to use an emery wheel. The work was by the piece and the tools and machinery were furnished by the defendant.

Assumpsit for the support of a transient pauper. Plea, the general issue. Trial by jury at the September term, 1892, Windham county, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The testimony of the plaintiff tended to show that the pauper had a three years residence in Landgrove, and that the plaintiff was entitled to recover if the pauper was a transient person at the time he became chargeable.

Case for an injury received upon the highway within the limits of the defendant village. Heard upon general demurrer to the declaration at the June term, 1893, Orange county, Start, J., presiding. The court pro forma overruled the demurrer. The defendant excepts. The declaration should allege that the village voted to accept its charter. I Dill. Mun. Cor. s. 83 ; R. L. ss. 3052, 3058; Acts of 1886, No. 190, s. 13 ; Acts of 1890, No. 17, ss. 1, 3.

Case for alienation of the affections of plaintiff’s wife. Plea, not guilty. Trial by jury at the March term, 1893, Washington county, Taft, J., presiding. Verdict and judgm'ent for the plaintiff. The defendant excepts. The marriage certificate was inadmissible. Territt v. Woodruff, 19 Vt. 182; Adams v. Gay, 19 Vt. 358; Hutchins v. Kimmell, 31 Mich. 126; Nixon v. Brown, 4 Blackf. 157.

Assumpsit upon three promissory notes. Plea, the gen- • eral issue, with notice of special matter. Trial by jury at the June term, 1892, Bennington county, Munson, J., presiding. The court directed a verdict for the plaintiff. The defendant excepts. . There was a total failure of consideration. Kelly v. Pember, 35 Vt. 183 ; Cragin et al. v. Fowler et al., 34 Vt. 326; Clough v. Patrick, 37 Vt. 421; Twitchell v. Bridge, 42 Vt. 68 ; Hawley v. Beeman, 2 Tyler 238.

General assumpsit. Plea, the general issue. Trial by jury at the September term, 1893, Windham county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant was the only daughter of the plaintiff. In 1874, at age seventeen, she married one Minor. Previous to her marriage she had always lived with the plaintiff and she continued to for some time afterwards. Minor never contributed much to her support, and in June, 1876, ceased to cohabit with her.

The appellant sought to recover the amount of a promissory note. Plea, the general issue and statute of limitations. Trial by jury at the June term, 1893, Addison county, Tyler, J., presiding. The court directed a verdict for the appellant. The defendant excepts. One partner in a non-trading firm has no authority to charge the firm by the execution of a promissory note in the firm name.

<p> Common carrier. Limitation of liability. Bill of lading. Loss by fire. Remote and proximate cause. </p> <p>1. Common carriers may, by contract, limit their common law liability in so far as is reasonable.</p> <p>2. A bill of lading is a contract between the shipper and carrier for the carriage of the goods, to which the assent of the shipper will be presumed from the. fact that he receives it.</p> <p>3. A stipulation in a bill of lading exempting the carrier from liability for loss by fire, which does not happen through the neglect of the carrier, is reasonable.</p> <p>4. The grain sued for was destroyed by the burning of the elevator in which it was stored. In regular course of shipment from west to east grain was stored in this elevator until ordered forward by the shippers. This grain had been ordered forward some time before the fire, and the county court found that the defendant was negligent in not having sent the grain forward sooner, and that but for this negligence the grain would not have been in the elevator at the time of the fire, but that the fire itself occurred without the fault of the defendant. Held, that the defendant was not liable, for that the fire was the proximate and the delay to forward only the remote cause of the damage.</p>

Scire facias against bail upon mesne process returnable to the May term of the Washington county supreme court, 1890. Heard upon demurrer to the plea.

<p> Examination of adverse party. Evidence tending to criminate. Privilege. None when statute bars prosecution. Privileged communication, fhiestion for the court. Presumption of innocence. Charge of court. </p> <p>1. Under R. L., s. 1009, a party, when called as a witness by the other party, may be asked and compelled to answer leading questions.</p> <p>2. A party may be compelled, in support of his adversary’s case, to testify to facts which show him guilty of the commission of a crime, provided at the time the evidence is elicited, the statute of limitations has become a bar to a prosecution for that crime.</p> <p>3. In such case the party may be inquired of whether upon a former occasion and before the statute had become a bar, when called upon to testify as to the same matters, he claimed and was allowed his privilege, and such fact, when admitted by the party, is properly commented upon by counsel and submitted to the attention of the jury by the court as a circumstance tending to prove the fact.</p> <p>4. Whether a communication is privileged as being between attorney and client is a preliminary' question for the trial court, whose decision cannot be revised by the supreme court.</p> <p>5. A lawyer who is employed by two persons as a mere scrivener to draw a deed from one to the other, is not an attorney within the rule that communications made in the course of such employment are privileged.</p> <p>6. When in the trial of a civil cause, a party is charged with the commission of a crime, the legal presumption is that he is innocent, and he is entitled to have this presumption submitted to and considered by the jury.</p> <p>7. An instruction that the jury must dispose of the case “ upon a consideration of all the facts and circumstances of the case appearing in evidence,” excludes from their consideration any presumption of innocence.</p> <p>8. Where the plaintiff claims damages in respect to several distinct matters and the court instructs the jury to lay out of the case one of those matters, that is equivalent to an instruction that ■ the plaintiff is not entitled to damages in respect of that matter.</p>

Indictment for the unlawful furnishing of intoxicating liquor. Plea, not guilty. Trial by jury at the June term, 1892, Orange county, Tyler, J , presiding. Verdict guilty. The respondent excepts.

<p> When connected transactions constitute independent contracts. Presumption of regularity. </p> <p>1. The defendant was engaged in the manufacture of granite at Quincy, Mass., and the plaintiff in selling manufactured granite at Montpelier, Vt. Having entered into negotiations as to future business, it was arranged that the plaintiff should pay' the defendant for all orders within thirty days from the delivery of each. Under this arrangement the plaintiff from time to time sent the defendant drawings of such work as it required for a price, and upon receiving this sometimes placed the work with the defendant and sometimes not. Held, that each order constituted a separate and independent contract into which the general understanding as to time of payment was carried by implication, and that a failure upon the part of the plaintiff to pay for one order within thirty days would be no justification to the defendant in refusing to execute other orders which it had then accepted.</p> <p>3. The plaintiff ordered a monument of the defendant to be shipped directly to Ohio from Quincy, and paid for the same within thirty days after date of shipment. Upon its arrival in Ohio the purchaser refused to receive it for that it did not meet the requirements of the order. At this time the defendant had taken several orders from the plaintiff, some of which it filled and delivered. Thereupon the plaintiff refused payment unless it was allowed the amount of the first monument, and the defendant refused to fill any further orders unless paid for those it had filled. The plaintiff sought to recover in the first count the price paid for the first monument and in the second count damages for failure to fill an order for another monument. In respect to the first count the court charged in a manner not excepted to, and the jury returned a verdict for four hundred ninety-four dollars and ninety-six cents. As to the second count the court declined to instruct the jury that the failure to pay for some other order within the thirty days would excuse the defendant from filling this order, to which the defendant excepted, and the jury returned a verdict for the plaintiff. Held, that this verdict might be sustained, even though the refusal to so chai-ge was erroneous ; for upon the verdict on the first count it must be presumed that the price of that monument was paid under such circumstances that it was the plaintiff’s money in the hands of the defendant, which the plaintiff might apply in payment of whatever was due to the defendant from it and which it attempted to apply in payment of these orders, and, the contrary not appearing, it will be further presumed that the amount due on such orders did not exceed the amount so in defendant’s hands, and that therefore the plaintiff did. not owe the defendant anything when it refused to fill the order embraced in the second count.</p>

<p>Assumpsit. Heard at the April term, 1893, Franklin county, Thompson, J., presiding. The original declaration was general assumpsit. At the April term, 1891, the plaintiff filed an amended declaration consisting of two counts and the common counts. The first one of these counts was upon a promissory note dated March 19, 1883, for the sum of ten thousand dollars, payable to the order of Aldis O. Brainerd, the defendant, signed by one Bradley Barlow and endorsed by the said defendant to the plaintiff. The defendant moved to dismiss the first count of said amended declaration for the reason that it brought upon the record a new cause of action. This motion to dismiss was first heard by the court, which found the following facts : September 27, 1883, the plaintiff brought an action of assumpsit against the defendant, declaring specially upon- the note described in the first count of the amended declaration. Said suit was returnable to the April term of the Franklin County Court, 1884, and was duly served and entered at that term, when it was continued until the September term, 1884, at which term it was discontinued by the plaintiff.The suit at bar was commenced January 18, 1884, and was returnable to and entered at the April term, 1884. At the time this suit was commenced the plaintiff did not intend to include in it the note described in the first count of the amended declaration, but then intended to prosecute the first suit so that he might realize as much as possible from the property attached in that suit. Subsequently the plaintiff ascertained that his attachment in the first suit was not available and accordingly discontinued that suit, upon the understanding and expectation that he could include the note mentioned in the first count of the amended declaration in the last suit, which was in general assumpsit.</p> <p>December 22, 1892, the motion to dismiss and certain pleas in bar were filed by the defendant. The defendant’s attorney handed the motion to dismiss and the pleas in bar to the clerk at the same time, with instructions to file the motion first and the pleas afterwards, and they were so filed.</p> <p>November 29, 1892, the defendant filed a plea of the statute of limitations to the first count of the amended declaration. The defendant offered evidence tending to prove that it was the intention of the defendant that the pleas in bar, filed December 22, should not apply to the first count of the amended declaration, but the court excluded the evidence as tending to show that the intention of the pleader was other than as expressed by the pleas, to which ruling the defendant excepted. The pleas by their terms were to the whole declaration.</p> <p>The court held that the filing of the plea of the statute of limitations to the first count of the amended declaration, November 29, and the filing of the pleas in bar, December 22, to the same count, by the defendant, were a waiver of his right to move to dismiss said count, as introducing a new cause of action, and overruled said motion to dismiss. To this the defendant excepted.</p> <p>Thereupon the case was tried by the court upon its merits, which found, among others, the following facts :</p> <p>The plaintiff claimed to recover the amount of two promissory notes, one dated March 19, 1883, signed by Bradley Barlow, and payable to the order of A. O. Brainerd, the defendant, in six months from date, at the Suffolk National Bank, in Boston, Massachusetts, which note was endorsed by A. O. Brainerd and Lawrence Brainerd.</p> <p>The plaintiff also claimed to recover the amount due on another promissory note for a like sum, dated July 19, 1883, signed by Bradley Barlow, payable to the order of L. Brainerd, four months from date, at the said Suffolk National Bank, and endorsed by L. Brainerd and A. O. Brainerd.</p> <p>The court found that both of said notes were presented for payment at their maturity at said bank; that payment was demanded and refused for want of funds, and that they were duly protested for non-payment, and notice of such protest for non-payment duly given to the defendant, A. O. Brainerd, who was an accommodation endorser of said notes.</p> <p>In the determination of said questions the court received, under the objection and exception of the defendant, the following testimony:</p> <p>1. The court received the official protest of the note dated March 19, 1883. This protest showed that the note was presented for payment at its maturity, demand made and payment refused. It further recited that the notary had officially notified the first and second endorsers, being A. O. Brainerd, the defendant, and Lawrence Brainerd, by mail, enclosed to H. P. Seymour, Esq., at St. Albans, Vt.</p> <p>2. As tending to. show that the defendant received actual notice of this protest, the court considered the following endorsement upon the back of the note :</p> <p>“A. O. Brainerd paid on the within note $700, by way of purchase lands, Canada, October 8, 1883. Brainerd holds my agrément to this effect for the above sum to be endorsed. H. P. Seymour.”</p> <p>The agreement above referred to was as follows :</p> <p>‘ ‘ I hereby agree to apply the sum of $700 either on a note signed and due me of $2,000 by A. O. Brainerd, or upon a note signed by B. Barlow, endorsed by L. Brainerd and A. O. Brainerd which was made payable at Suffolk National Bank, Boston, now in said Seymour’s possession. The above sum, $700, being for note due said Brainerd in part for his on e-half undivided interest in deed Canada lands at Sutton this day; $700 to be endorsed as above as of this date, and this receipt to be given up upon such endorsement.</p> <p>Witness my hand and seal, H. P. Seymour, [l. s.] Sutton Flats, C. E., P. Q¿., Oct. 1, 1883.</p> <p>Attest, J. B. A. Bathalon, N. P.”</p> <p>L. Brainerd and Lawrence Brainerd are one and the same person, and his name and the name of A. O. Brainerd appear as endorsers upon the two notes in the order stated in the description of each of said notes. The defendant claimed that, by the terms of said receipt it should have been endorsed upon the note dated July 19, 1883, instead of upon the note dated March 19, 1883.</p> <p>At the time said receipt of October 1, 1883, was executed and delivered, the note dated March 19, 1883, was due and payable, while the note dated July 19, 1883, was not due and the defendant had not become liable thereon as endorser. From these circumstances the court found, as a matter of fact, that the note referred to in said receipt as signed by B. Barlow and endorsed by L. Brainerd and A. O. Brainerd, was the note dated March 19, 1883, and that the endorsement was therefore properly made on that note.</p> <p>3. As further tending to show notice to the defendant, the court considered the following facts :</p> <p>At the time defendant signed said notes for the accommodation of the said Barlow, Barlow turned out to him as security, bonds of a certain railway in Canada, of the par value of forty thousand dollars. Said bonds were at that time in the custody of the Vermont National Bank, St. Albans, Vt., of which the said Barlow was president. Said bank subsequently went into liquidation and one Hendee became its receiver. November 28, 1883, afterboth the notes had become due and had been protested for non-payment, the defendant executed and delivered to Seymour a written order directing the said Hendee to pay over to the said Seymour, to be applied on these notes, whatever might be realized from the sale of said bonds.</p> <p>The said Hendee, as receiver, claimed that at the time Barlow attempted to turn out said bonds to the defendant as collateral, the bonds were in fact in the possession of the Vermont National Bank and owned by it; and this claim of the receiver was sustained in subsequent litigation in reference to said bonds.</p> <p>The defendant’s motion to dismiss the first count in the new declaration should have been sustained. Boyd v. Bartlett, 36 Vt. xo.</p> <p>An accommodation endorser is entitled to strict notice. National Bank v. Lewis, 50 Vt. 622; Bank v. Wallace, 36 Am. Dec. 694.</p> <p>If a , waiver or new promise is relied upon, it must be shown that it was made by the endorser with full knowledge of the fact that he was discharged. Bogart v. Me Clung, 27 Am. Rep. 737 ; National Bank v. Lewis, 50 Vt. 622 ; Crain v. Colwell, 8 Johns (N. Y.) 384; Treasurer v. O'Brien, 38 Iowa 406; Hunter v. Hook, 64 Barb. 469; Richard v. Ballou, 51 Howard 371.</p> <p>The new declaration related back to the beginning of the suit. Dana v. McClure, 39 Vt. 197.</p> <p>The defendant, by pleading to the merits of the new declaration, waived his right to move a dismissal of the first count. Blodgett v. Skinner, 15 Vt. 716; Luce v. Hoisington, 56 Vt. 436; Sherman v-. Johnson, 58 Vt. 40.</p> <p>Payment by an endorser after maturity is evidence tending to show notice to him of dishonor and protest. Bundy v. Buzzell, 51 Vt. 128; Blodgett v. Durgin, 32 Vt. 361.</p> <p>The order on Hendee, receiver, to apply the proceeds of the bonds turned out as collateral for the payment of those notes, was also evidence tending to show notice. Nash v. Harrington, 1 Aik. 39; Bank of U. S. v. Lyman, 20 Vt. ■666; Byles, Bills, 456; Pars., Bills and Notes, 621-624, note p. 623.</p>

<p>Waiver of demurrer. Master and servant. Machinery. Inspection. Fellow servant. Evidence. Reputation as careful man. Trial.</p> <p>1. By pleading over and going to trial a defendant waives his exception to the overruling of his demurrer to the declaration.</p> <p>2. The duty of the master to provide for the use of his servant suitable implements is an absolute one, both as to the original furnishing and as to the subsequent inspection, and if the master delegates this duty to another he is liable for the neglect of such other in that behalf.</p> <p>3. The claim of the plaintiff being that the defendant had not kept a derrick in safe condition, the defendants cannot show that their servant, who was charged with the oversight of the same, was ordinarily a careful and prudent man in such matters.</p> <p>4. The mere exclusion of an unanswered question is not error. The excepting party must make an offer showing that the answer would disclose admissible evidence.</p> <p>5. The plaintiff was injured by being struck by one of the wheels from a tackle block attached to the mast of the derrick. The wheel became loose and fell because the pin which passed through the center of the block had worked out. The plaintiff claimed that the defendant was negligent in not providing a suitable block and in not keeping it in suitable repair. Held, that the opinion of a person having experience in the use of derricks that such blocks were suitable and as to how the pin worked loose in this case, was inadmissible ; for those questions were for the jury and no special knowledge or skill were required to decide them.</p> <p>■6. Nor could it be shown by those engaged in the use of derricks that they had never known a pin like this one to work out.</p> <p>*]. It will be presumed that a given line of inquiry permitted on cross-examination was proper subject matter of cross-examination unless the exceptions affirmatively show the contrary.</p> <p>8. The simple asking of an unanswered question affords no ground of exception.</p> <p>9. The defendant should have been permitted to show how the block was fastened to the mast, for upon its position depended the likelihood of the pin working out.</p> <p>10. Since it appears from the case as stated in the exceptions that this evidence was material, and since the court excluded it as immaterial, no further offer by the excepting ' party was necessary.</p> <p>11. The court properly refused to direct a verdict for the defendants.</p> <p>12. The foreman of the defendants, in the discharge of his duty to inspect this derrick, woüld not be the fellow servant of the plaintiff.</p> <p>13. The mere happening of the accident, in the circumstances of this case, is evidence of negligence.</p> <p>14. As applied to the facts in this case there was no error upon the part of the court in omitting to state to the jury that the plaintiff took all the risks ordinarily incident to that work. The risk which befell the plaintiff was not one within the apprehension of either party, and therefore not one which the plaintiff assumed.</p> <p>15. It was not as much the duty of the plaintiff as of the defendant to inspect this block.</p> <p>16. The master is chargeable not only with the knowledge which . _ he actually has, but with that which he ought to have as well.</p> <p>17. The fact that this derrick had been in daily use for a longtime and had uniformly proved safe and efficient did not relieve the defendants from the duty of inspecting it.</p> <p>18. If the exceptions do not show that there was anything in the case calling for a certain charge, failure to comply with a request to so charge will not be error.</p>

<p> Attachment. Description of property attached. Taking in execution. Title of plaintiff. </p> <p>1. A description of the property sought to be attached as “ six cows, five of said cows are the same bought of Byron Davis, of Greensboro, and one bought of McClary, of Greensboro,” creates no lien in favor of the officer, where the attachment is by leaving a copy in the town clerk’s office, and no possession of the property is taken.</p> <p>2. An execution cannot be levied after the return day.</p> <p>3. Although the execution was seasonably placed in the hands of the officer, and he advertised the property for sale upon the same, that would create no lien in his favor, he having obtained none in virtue of the original attachment, and not having taken the property into his possession upon the execution or lodged a copy in the town clerk’s office.</p> <p>4. In an action of replevin the plaintiff must make out his title affirmatively and cannot resort to defects in the title of the defendant. Held, that in this case the plaintiff’s evidence tended to show title in him.</p>

<p>Prosecution for the unlawful furnishing of intoxicating liquor. Heard upon motion in ai'rest of judgment filed for the first time in supreme court. The opinion- states the case.</p> <p>The respondent cannot file his motion in arrest in this coui't. It should have been filed in the county court and brought up from there by exceptions. 2 Thom. Tr., ss. 2726, 2775 ; R. L., ss. 782, 1699, 1700.</p> <p>Moreover, in this case, the county court rendered judgment, and it was only upon the theory that that judgment became final by the overruling of the respondent’s exceptions that the cause coxxld be taken to the United States Supreme Court. Desty, Fed. P1-0., p. 331, s. 709.</p>

<p>Case for personal injuries received through neglect of defendant. Plea, the general issue. Trial by jury at the September term, 1893, Rutland county, Rowell, J., presiding. The defendant moved for a verdict which the court denied. Verdict and judgment for the plaintiff. The defendant excepts.</p> <p>The court should have directed a verdict. The evidence did not tend to show negligence upon the part of the defendant and did show contributory negligence in the plaintiff. Worthington v. Railroad, 64 Vt. 107 ; Latremouille v. Railway, 63 Vt. 336; Stock v. Wood, 136 Mass. 353; Barker v. Savage, 45 N. Y. 191; Belton v. Baxter, 54 N. Y. 245 ; Brooks v. Schwerin, 54 N. Y. 343 ; Stringer v. Frost, 116 Ind. 477.</p> <p>The plaintiff was allowed to show special damages not alleged in the declaration. Roberts v. Graham, 6 Wall. 578 ; Tomlinson v. Derby, 43 Conn. 562 ; Taylor v. Monroe, 43 Conn. 36; French v. Wilkinson, 93 Mich. 322; Fuller v. Jackson, 92 Mich. 197.</p> <p>The plaintiff’s evidence tended to show reckless and negligent driving upon the part of the defendant’s servant. Barber v. Essex, 27 Vt. 62; Vinton v. Schwab, 32 Vt. 612; Durgin v. Danville, 47 Vt. 95 ; Rogers v. Swanton, 54 Vt. 592 ; Fassett v. Roxbury, 55 Vt. 552.</p>

<p>This is a cross-bill filed in the suit E. H. Landon v. O. A. Burton, to specifically enforce a contract for the settlement of that suit. Heard at the August term, Grand Isle county, 1892, upon bill, answer and proofs. Start, chancellor, dismissed the cross-bill. The orator in that bill appeals.</p> <p>A cross-bill will lie to enforce a settlement of the suit in which it is filed. 2 Dan. Ch. Pr. (Perkins Ed.), 1649 and cases cited; Sto. Eq. PI. (8th Ed.), s. 393; Rutland v. Page et al., 24 Vt. 181 ; 2 Dan. Ch. Pr., 1656-1678.</p> <p>Time is not of the essence of this contract. 1 Sto. Eq. Jur., s. 776; Fry, Sp. Perf. Cont., ss. 710-713; 1 Chitty, Cont. 433; 2 Chitty, Cont. 1068, 1072 and note (i).</p> <p>The agreement (which it is sought to enforce ousts the court of its jurisdiction and is not enforceable. Wood v. Humphrey, 114 Mass. 185 ; 2 Sto. Eq. Jur. (9th Ed), 685 and cases cited.</p>

<p> Declarations of husband not evidence against wife. When the fact of keeping silence is admissible. ' </p> <p>1. The claim being that the husband of the defendant had used certain money belonging to the orator’s intestate to pay a debt of the husband which was secured by mortgage on the real estate of the wife, declarations of the husband to that effect are inadmissible.</p> <p>z. The fact that a party keeps silence can only be given in evidence against him when, under the circumstances, he was called upon to speak. So where a husband said in the presence of his wife that he had used certain money to apply on a certain indebtedness, that the wife made no response is not evidence of the fact stated as against her; nor where, just before the death of her husband, when he could scarcely hear or speak, she, as the medium of communication between him and another person, repeated similar expressions without contradiction, is that fact evidence against her.</p>

<p> Party to action. Voluntary trust. Accounting. Interest. </p> <p>1. Held, that upon the finding of the referee as to the interest of the plaintiff and his father in the property sued for, the plaintiff might, as to third -persons, deal with it as exclusively his own, and could therefore maintain this suit in his sole name.</p> <p>2. A voluntary trust in personal property may be created by parol and without the knowledge of the beneficiary ; and it may be for the donor himself or for himself and another.</p> <p>3. Where the intestate put into the hands of the plaintiff two hundred dollars “for the benefit of himself and wife, to be used as they might need it,” held, that a voluntary trust was thereby created for the intestate, and his wife, and that the plaintiff might expend such sum for the needs of the wife after the death of the intestate.</p> <p>4. The plaintiff must account for any balance of the fund not actually expended for the benefit of the beneficiaries.</p> <p>5. The plaintiff, as administrator of the widow, applied to the probate court for an allowance out of the defendant estate for her support, covering what he sought to deduct in this suit. Held, that the plaintiff was not concluded by the adjudication in that proceeding.</p> <p>6. When plaintiff received the two hundred dollars he used it to pay off a mortgage on his farm. Subsequently the intestate recalled one hundred and fifty dollars of the fund and still later handed it back. Held, that the plaintiff was not chargeable with interest on the one hundred and fifty dollars from the time he received it back, it not appearing that he had made, or ought to have made, any gain from it.</p> <p>7. He should not be charged with interest after the demand of the administrator upon him, for that demand was for the whole amount and ought not to have been complied with.</p> <p>8. The plaintiff need not present to commissioners a claim for the amount expended for the wife, for that was not an affirmative claim against the estate, but only available as an offset upon an accounting for the fund.</p> <p>9. The plaintiff should be allowed for two small bills against the intestate, which he paid at the request of the widow.</p>

Petition in chancery to foreclose the equity of the defendant in certain premises. Pleard at the April term, 1893, Franldin county, upon bill and answer. Thompson, chancellor, decreed according to the prayer of the bill. The defendant appeals.

Action on R. L., s. 4206, to recover damages for the cutting of trees upon the lands of the plaintiffs. Plea, the general issue. Trial by jury at the September term, 1892, Rutland county, Taft, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts. The evidence of the plaintiffs tended to show that the lands in question were situated in the southerly part of the town of Wallingford.

Case for deceit in the exchange of real estate. Plea, the general issue. Trial by jury at the September term, 1892, Windham county, Munson, J., presiding. Verdict and judgment for the plaintiff. The plaintiff owned a farm situated in Guildford, Vt., and the defendant Zulima A. Whitney, the wife of the defendant E. T. Whitney, owned a lot on which were certain tenement houses in the city of Boston.

<p>This was an appeal from the disallowance by commissioners upon the estate of Martin H. Goddard of the claim of E. J. White, assignee of the insolvent estate of W. H. H. Chapman. Heard at the December term, 1893, Windsor County Court, Start, J., presiding, upon a motion by the appellee for leave to file a plea in offset, and the report of a referee. Leave was granted to file the plea in offset, to which the appellant excepted. The court then rendered judgment fro forma, disallowing the appellant’s claim, and allowing the claim of the estate upon the plea in offset to the amount of seventy-two dollars and seven cents. To the disallowance of his claim and to the rendering of the judgment upon the plea in offset the appellant excepted.</p> <p>In March, 1890, one Harris was operating a wood working establishment in the village of Ludlow, Vt., and purchased of Chapman for use in his business a quantity of hard wood boards at a given price per thousand feet. The boards were to be delivered from time to time, and were to be paid for as they were delivered. Under this contract Chapman began drawing the boards, and after a time applied to Harris for payment towards the same. Thereupon Harris procured of the intestate, Goddard, a check for one hundred dollars, and passed the same over to Chapman. Chapman continued to draw the boards and after a further time applied for an additional payment and received another check of Goddard for a like amount. These checks were both made payable to the order of Harris, were charged by Goddard to Harris, credited by Harris to Goddard, and charged by Harris to Chapman.</p> <p>After Chapman had drawn a considerable part, but not the whole, of the boards, he and Harris had a looking over, and it was agreed that Chapman should pay Harris five hundred dollars in all for the boards which had been delivered. The referee found that it was then understood between Harris and Chapman that no more boards were to be drawn under the contract. For the purpose of paying the balance due Chapman, after deducting the two hundred dollars already paid, Harris gave Chapman an order upon Goddard for the sum of three hundred dollars. At that time Goddard had no funds in his hands which belonged to Harris, but it was expected by the parties that he might have. Neither before drawing the order nor at the time did Harris notify Goddard that he intended to draw such order, nor did Goddard give him any authority so to do. After the order had been drawn Harris said to Goddard that he had drawn such an order, and Goddard replied that he would pay it sometime.</p> <p>At the time the contract between Harris and Chapman was entered into Harris was in poor credit. He was owing Goddard a very considerable sum and Goddard had been in the habit of assisting him from time to time by the way of advances, by discounting the notes which he received for the sale of his products, and sometimes by guaranteeing the payment of his debts for lumber. This was done by Goddard not because he had any interest in the business of Harris or expected to derive any profit from it, but because he was more likely to receive his own pay if Harris continued business than if he was forced to suspend.</p> <p>After a part of the lumber had been delivered'and after Chapman had received one of the one hundred dollar checks, he applied to Goddard, without the knowledge of Harris, said to him that he was not receiving his pay as fast as he ought, that he feared he might never receive it, and that he should not continue to deliver the lumber unless Goddard would assume the payment of the debt, and thereupon Goddard promised him that he would pay for the lumber.</p> <p>Chapman never had any conversation with Goddard in reference to the payment of the order; Goddard never promised Chapman to pay the order, and never promised anybody, in writing, to pay either for the lumber or the amount of the order.</p> <p>After the lumber had been delivered Chapman applied to Goddard to pay a note for him to one Morrison, and Goddard promised to do so out of the avails coming to Chapman from the lumber, and did in fact pay the sum of one hundred twenty-three dollars in liquidation of said note. The account presented by the estate in offset consisted of this sum and various other sums charged to Chapman from time to time for disbursements and legal services.</p> <p>The promise of Goddard to pay Chapman for the lumber was an original undertaking and can be enforced, although not in writing. Green v. Burton, 59 Vt. 423 ; Whitman v. Bryant, 49 Vt. 5x2; Bayley v. Moulton, 42 Vt. 184; Blodgett v. Lowell, 33 Vt. 174; Walker v. Hill, 119 Mass. 251.</p> <p>The promises by Goddard to Harris that he would pay the order, amounted to an acceptance. Clarke v. Cook, 4 East 70 ; Fisher v. Beckwith, 19 Vt. 31; Arnoldsr. Sprague, 34 Vt. 402 ; Walker v. Sherman, 11 Met. 170; Bierce v. Kettredge, 115 Mass. 374.</p> <p>An acceptance of this sort may be by parol. Fairlee v. Herring, 3 Bing. 625 ; Spaulding v. Andrews, 48 Pa. St. 411; Wynne v. Raikes, 5 East 514; Scudderv. Bank, 91 U. S. 406.</p> <p>It inures to the benefit of, and can be enforced in the name of the drawee. Bank v. Rathbone, 26 Vt. 19 ; Bank V. Woodruff, 34 Vt. 89; Holmes v. Laraway, 64 Vt. 175.</p> <p>The verbal statement by Goddard to Harris that he would pay the order did not bind him to do so. Bewettsi. Cartithers, 12 S. & M. 491; Taxtheimer v. Keyser, 11 Penn. St. 365 ; 1 Pars. Cont., note to s. 434.</p> <p>There was no consideration for Goddard’s promise to pay for the boards, and it was, therefore, nudum pactum. Nelson v. Boynton, 3 Met. 399: 2 Greenl., Ev., s. 262; Mallory v. Gillett, 21 N. Y. 412; Phalan v. Stiles, 11 Vt. 82; Rix v. Adams, 9 Vt. 233 ; Harding v. Cragie, 8 Vt. 501; Hurlburt v. Chittenden, 26 Vt. 52.</p>

<p>Bill in chancery to recover the damages occasioned the orator’s property by the construction and maintenance of the defendant’s railroad. Heard upon the report of a special master and exceptions of the defendant thereto at the September term, 1893, Franklin county. Ross, chancellor, overruled the exceptions and decreed for the orator in accordance with the findings of the report. The defendant appeals.</p> <p>This case was originally before the supreme court at the general term, 1891, and the elements of damages were then determined, the case being remanded to the court of chancery for the assessment of damages in accordance with the opinion then given. 64 Vt. 42. The case was referred to a new master for the assessment of damages, and his report is the one under consideration. Those portions of it necessary to exhibit the questions considered not sufficiently stated in the opinion, are as follows :</p> <p>“Several witnesses were introduced by the orator who estimated the damage which the orator had suffered under each subdivision of the mandate.</p> <p>“The master finds that the witnesses so introduced had long been familiar with real estate values in that locality, also with the premises in question and the circumstances in relation thereto that followed the building of the defendant’s road, and were as competent to form an intelligent judgment and give a just estimate touching the various elements involved as any whose opinion could be asked, if the judgment and opinion of others in such matters, and in like situation, may lawfully be considered by the trier.</p> <p>“When such testimony was offered no formal objection was made by the defendant to the competency or materiality of evidence of this character, but the defendant claimed, after the testimony had been heard, that the master had no right to consider it, that it was incompetent and that the master must find what damages the orator had suffered from consideration of the facts alone relating to each item, unaided by the judgment, opinion, or estimates of witnesses.</p> <p>“The master suggests, however, that he is not possessed of those peculiar elements of knowledge needful for the formation of an intelligent judgment upon the matters embraced in the mandate, which are of necessity local and circumscribed in their character, and that in his findings therein he has weighed and passed upon the estimate of witnesses whom he finds were possessed of those elements of knowledge, believing it to be competent for him to do so.</p> <p>“The orator objected to the admission of testimony as to the sales of contiguous lands in 1872, upon the ground that such sales were, in point of time, too remote, and that the character of the parcels and the circumstances under which and the purpose for which the conveyances were made, afforded no proper criterion of value here.</p> <p>“The master excluded the testimony and the defendant excepted.</p> <p>“ The defendant introduced no testimony upon the sub- . ject of damages under the separate items of the mandate, by producing witnesses and putting to them the above or similar interrogatories, but did introduce several witnesses who gave their estimates as to the value of the property before and after the building of the road, and that real estate in that locality had declined since 1872, and claimed from such testimony, and the situation of the property, and the business carried on there, the master should find what damages the orator had suffered; but the master was not able to extract from such testimony the necessary elements upon which to base the specific findings required by the mandate, though he does find, by request of the defendant, that real estate in that locality has greatly depreciated in value since 1872.”</p> <p>The opinion evidence as to the amount of the damages was admissible. Railroad Co. v. Biocby, 57 Vt. 548; Tucker v. Mass. Cent. Rd., 118 Mass. 546; Snow v. Boston & Maine Rd., 65 Me. 230; Cairo & St. Louis Rd Co. v. Woolsey, 85 111. 370; Shermans. Railway Co., 30 Minn. 237 ; 2 Wood Railway Law, s. 263, note 3 ; Snyder et al. v. Railroad Co., 25 Wis. 60; Pierce, Railroads, 227; Whar. Ev., s. 450; Sturgis ei al. v. Knapp et al., 33 Vt. 53i-</p> <p>There was no error in rejecting evidence as to the price for which contiguous lands sold. The sales were eight years before the date as of which the damages were assessed and it does not appear that the land was in any respect similar. Everett v. Union Paciiic Rd. Co., 59 la. 243 ; May v. Boston, 158 Mass. 21; Sterling v. Baldwin, Exr., 42 Vt. 311.</p> <p>Witnesses could not state their opinion as to the amount of damages ; that was the very question for the master, and he should have determined it by a consideration of the various facts in reference thereto. Roberts v. New York Elevated Rd. Co. et al., 128 N. Y. 455 ; Montgomery & W. P. R. Co. v. Varnum, 19 Ala. 185 ; A. & F. R. Co. v. Burkett, 42 Ala. 83 ; Haines v. Brownlee, 63 Ala. 277 ; Young v. Canton, 87 Ala. 727 ; Collins v. Sullivan, 54 Cal. 238 ; Fleming v. Albeck, 67 Cal. 226; Central Rd. Co. v. Senn, 73 Ga. 705 ; B. &. A. R. Co. v. McLearen, 47 Ga. 546; Gilbert v. Cherry, 57 Ga. 128 ; K. & S. Rd. Co. v. Horan, 131 111. 288; C. & A. R. Co. v. Springfield & N. W. R. Co., 67 111. 142; McReynolds v. B. & O. Rd. Co., 106 111. 152; E. & C. S. L. R. Co. v. Fitzpatrick, 10 Ind. 120; B. R. & C. R. Co. v. Johnson, 59 Ind. 480; O. & M. R. Co. v. Nickless, 71 Ind. 271; P. C. & St. L. R. Co. v. Nixon, 79 Ind. in ; Dalzell v. Davenport, 12 la. 437 ; Russell v. Burlington, 30 la. 262 ; Parsons Water Co. v. Knapp, 33 Kan. 752; W. & W. R. Co. v. Keehn, 38 Kan. 675 ; C. K. & A. R. Co. v. Muller, 45 Kan. 85 ; M. Hill, C. & C. Tamp. Co. v. Maupine, 79 Ky. 101; Hollands. Carmtitt, 5 La. An. 705 ; Springfield & S. R. Co. v. Calkins, 90 Mo. 538 ; Hart v. St. L. I. M. & S. R. Co., 94 Mo. 255 ; Nevada & M. R. Co. v. De Lussa, 103 Mo. 125; F. E. & M. V. R. Co. v. Whalen, 11 Neb. 585 ; B. & M. R. Co. v. Schuntz, 14 Neb. 421; B. & M. R. Co. v. Beebe, 14 Neb. 463 ; Omaha v. Kramer, 25 Neb. 489; Haight v. Moitlton, 21 N. H. 586; Concord Railroad Co. v. Greeley, 23 N. H. 237; New Mexican R. Co. v. Hendricks, 30 Pac. Rep. 901; Thompson v. Pease R. Co., 51 N. J. L. 42 ; Boring v. United N, J. R. Co., 54 N. J. L. 576; Powers v. Hazelton & B. R. Co., 33 Ohio St. 429; C. H. V. & T. R. Co. v. Gardner, 45 Ohio St. 309; Tingley v. Providence, 8 R. I. 493; Brown v. Providence & S. R. Co., 12 R. I. 328 ; Houston & T. C. P. Co. v. Burke, 55 Tex. 323; Gainesville, H. d W. R. Co. v. Neall, 78 Tex. 169; Crane v. North--field, 33 Vt. 124: Bain v. Cushman, 60 Vt. 343 ; Stowe, Admr., v. Bishop, 58 Vt. 498; Bemis v. Railroad Co., 58 Vt. 636; Farrand v. C. d N. W. R. Co., 21 Wis. 435; Snyder v. W. Un. R. Co., 25 Wis. 60; Churchill v. Price, 44 Wis. 540; Neilson v. C. M. d N. W. R. Co., 58 Wis. 516.</p> <p>Evidence as to what contiguous lands sold for should have been received. Pierce, Railroads, 225.</p>

<p> Master and servant. Assumption of obvious risk. Where servant is young or inexperienced. </p> <p>1. A master may conduct his business in a dangerous way, provided it be not unlawful and does not interfere with the rights of others, without liability to his servant, who has sufficient capacity to comprehend the danger and voluntarily incurs it.</p> <p>2. The hazard in passing along a ledge of rock projecting some ten inches from the perpendicular face of a marble quarry, covered with ice in freezing weather, as the servant knows, is sufficiently obvious so that if a servant attempts to pass over it in the discharge of his duties he must be held to have.assumed the risk.</p> <p>3. A master, having knowledge .of the danger, should instruct his servant, who from lack of years, experience, or capacity does not comprehend it, and for failure to do so may be liable, even though the servant consents to incur the hazard ; but the plaintiff has the burden of showing both the necessity for the instruction and the failure to give it.</p> <p>4. A master may still be liable, although he has instructed the servant, if the servant be so young and inexperienced that he cannot comprehend and guard against the peril; but it cannot be assumed that a boy fifteen years and nine months-old, who is receiving one dollar and fifteen cents a day, has not sufficient intelligence to understand the danger of walking along a slippery ledge of rock.</p>

<p> Criminal la-w. When indictment may charge offence in words of statute. </p> <p>1. An indictment under R. L., s. 4249, for making public by print and writing information as to where the means for procuring the miscarriage of a pregnant woman could be had, should allege the manner in which the print and writing was made public or circulated.</p> <p>2. When, in framing an indictment for the violation of a statute, it is sufficient to follow the language of the statute, considered.</p>

<p>Contract by letter. When it is completed. Absolute acceptance. What is the place of such contract. Insurance. Estoppel. Premium. Mortgage.</p> <p>1. Where a contract is made and accepted by letter sent through the post, it is completed and takes effect the moment the letter accepting the proposition is deposited in the post of™ fice. , '</p> <p>2. The letter of acceptance must be an absolute and not a conditional,acceptance.</p> <p>3. The defendant, a Vermont corporation, made an application for insurance and delivered it at Bennington, Vt., to the special agent of the plaintiff, a Connecticut corporation, who transmitted it to the New York office of the plaintiff. The plaintiff, through its New York office, issued a policy of insurance, and mailed it in the city of New York to the defendant at Bennington. Held, that the contract took effect at the time of mailing the policy ; that it was a New York contract, and that therefore whether the plaintiff or its agent had a license to transact business in this state was immaterial.</p> <p>4. The insurance was against damage from the explosion of defendant’s boiler. Accompanying the policy was a report from the plaintiff’s inspector in reference to certain changes in the setting of the boiler, which the defendant claimed made such changes a condition precedent to the taking effect of the policy. Held, that the report did not make such changes a condition precedent, but was simply intended as a suggestion to the defendant that they ought to be effected.</p> <p>5. If the plaintiff issued its policy knowing this defect in the setting, it would be estopped from urging it as a defence to a suit upon the j>olicy.</p> <p>6. After the delivery of the policy, the defendant executed a mortgage upon the property and the defendant claimed that this rendered the policy void, and was a defence to this action for the premium. Held, that it did not appear that the policy was thus rendered void, for a mortgage was not a change in the title ; but that however this might be, the defendant could not by its act after the completion of the contract escape liability for the payment of the premium.</p>

<p> Partnership. Interest on balance dueprom partner. </p> <p>1. In the absence of contract, express or implied, or of fraud or concealment, a partner is not chargeable with interest on balances due the firm before settlement.</p> <p>2. Hodges v. Parker, 17 Vt. 242, considered.</p>

Petition for the laying of a highway. Heard upon the report of commissioners at the December term, 1893, Bennington county, Ross, C. J., presiding. Judgment dismissing the petition, with costs to the petitionee. The petitioner excepts. The petitioner, Clark Snow, was the owner of a farm, upon which he resided, in the town of Sandgate, and was also the owner of another lot in that town upon Moffet mountain, which was known as the mountain lot.

<p>This was an appeal from the judgment of the probate court for the district of Randolph, accepting the report of commissioners upon the estate of Electa Hall, disallowing the claim of the plaintiff. Heard upon the report of a referee at the June term, 1893, Orange county, Thompson, J., presiding. Judgment proforma for the plaintiff to recover one thousand five hundred forty-nine dollars and twenty-eight cents and costs. The defendant excepts.</p> <p>John Walton resided in Waitsfield, Vt., up to 1870. At that time he sold out his Waitsfield property and went to Illinois and California, returning to Vermont the latter part of 1872. Before returning and on October 1, 1872, being then a resident of Illinois, he made his last will and testament. He continued to reside for some time in Vermont, and then returned to Illinois, where he resided until 1876, when he again came east, and on September 28, 1876, was married to Electa Mosher, with whom he continued to-reside until the time of his death, June 1, 1877,</p> <p>John Walton left surviving three children, a son residing-in California, Mrs. Foster, residing in Illinois, and Sarah A. E. Walton, the administratrix of John Walton’s estate,, residing in Vermont. By his said will he made Mrs. Foster sole residuary legatee. Nothing was left to Sarah A. E. Walton for the alleged reason that she had already received her full share of the property. Ezra M. Prince of Illinois, was named as executor of the will. The will was probated in Illinois August 2 and 6, 1877, the executor qualified and the estate in Illinois was settled under the will. It never was offered for probate in Vermont for the apparent reason that it was attested by only two witnesses.</p> <p>Electa Walton continued the widow of John Walton until January 11, 1882, when she married John L. Hall. She continued to reside with him until February 22, 1885,,when she deceased, leaving a will by which the defendant, Skinner, was made executor.</p> <p>Nothing was done in respect to the settlement of the estate of John Walton in Vermont until November 4, 1885, when Sarah A. E. Walton was appointed administratrix upon his estate. As such administratrix she presented a claim against the estate of Electa Hall for certain money and property alleged to have been received by her in her lifetime belonging to the estate of John Walton. This claim was disallowed by the commissioners upon her estate, and from that disallowance an appeal was taken. In the county court a declaration in general assumpsit was filed and it is under this declaration that the plaintiff seeks to recover.</p> <p>December 12, 1877, an agreement was made between Mrs. Foster and Electa Walton by which the latter released all claims which she might have against the estate of John Walton as his widow, in consideration of receiving certain personal property which was then passed over to her.</p> <p>Among this personal propertjr was a note against Ira Richardson, a resident of Vermont, and two notes, one against Dr. Dunn and one against John Bender, both residents of Illinois.</p> <p>After his marriage with Electa, John Walton resided upon her farm. While there resident he purchased a stove and placed the same in her house for use therein, where it was at the time of his death. This stove Mrs. Hall subsequently sold for the sum of twenty-five dollars. The referee found that at the time of John Walton’s death it was fairly worth thirty-five' dollars.</p> <p>John Walton also bought various articles of furniture, among others a sink, which was brought into and placed in the house of Electa Walton. He also bought certain sugar utensils which were intended for use and were used on her farm by him in the management of the farm. At the death of John Walton this sink and these sugar tools remained in the possession of his widow, in whose possession they still were save for their natural depreciation, at the time of her death.</p> <p>John Walton also.bought and kept upon the farm of Electa a cow. This cow was sold the day of his death for the sum of thirty-seven dollars and fifty cents. It did not appear by whose direction the cow was sold. The purchase price was paid to his widow, Electa, and was by her accounted for in the settlement with Mrs. Foster, as so much money belonging to his estate.</p> <p>Electa Walton paid the funeral expenses and the cost ol the grave stones for John Walton and was allowed sixty dollars therefor in her settlement with Mrs. Foster.</p> <p>The settlement between Mrs. Foster, the residuary legatee under the will of John Walton, and his widow was a legal one and should be upheld by this court. Taylor v. Phillips, 30 Vt. 238 ; Babbit and wife v. Bowen et al., 32 Vt. 437 ; Reed v. Reed, 56 Vt. 492 ; 7 Gen. Dig. U. S., p. 959, s. 51 ; R. L., s. 2064.</p> <p>The debts ^ due from residents in Illinois had their situs there. Abbott v. Coburn, 28 Vt. 663 ; Bulloch v. Rogers, 16 Vt. 294; Manning v. Leighton, 65 Vt. 84, 99.</p> <p>Since the will of John Walton was not probated in Vermont it has no force here, and it was error to admit the certified copy of the probate in Illinois as evidence here. Ives v. Allyn, 12 Vt. 598-593 ; Dublin v. Chadbotirne, 16 Mass. 442 ; Kerr, Appellant,v. The Devisees of A. Moon, Respondents, 9 Wheat. 595.</p> <p>The administration in Illinois was only ancillary, and certainly could not act upon any property situated in the state of Vermont. Redf. Wills, part 2, p. 12; Rorer, Interstate Law, 248; Porter v. Heydock, 8 Vt. 374; Prob. Court v. Kimball, 42 Vt. 320; Fay v. Haven, 3 Met. 109, 114; Stevens v. Gaylord, 11 Mass. 256; Dawes v. Boylston, 9-Mass. 337.</p>

General assumpsit. Plea, the general issue. Trial by jury at the March term, 1892, Washington county,' Thompson, J., presiding. Held: and nothing about it.” Q. “Anything said about when you should ship this stone ? ” A. “They wanted we should start-that at once; justas quick as we could.” There was no testimony in the case other or different from that of Charles Watsdn and Voodry in reference to the sale to the defendant at this time, and the plaintiff did not…

<p> Conflict ofl laws. Liability of Vermont heir under Massachusetts statute. When contingent claim becomes absolute. Must be fresented to commissioners. Equity. </p> <p>1. Under the statute of Massachusetts an heir-at-law, to whom has been distributed a portion of an estate, is liable for the payment of his proportionate part of a contingent claim ' against the estate, which becomes absolute after its .distribution, to an amount not exceeding the value of the property received. Held, that a resident of Vermont, receiving a distributive share of a Massachusetts estate, could be sued for his portion of such a contingent claim in the courts of Vermont.</p> <p>2. When the claim becomes absolute in Massachusetts it creates a debt against the Vermont heir which must, upon his decease, be presented against his estate for allowance or it will be barred.</p> <p>3. There is no presumption that the probate court has appointed commissioners for the allowance of claims against the estate of a deceased person, for it is not the duty of that court to do so in every instance.</p> <p>4. If the estate of such Vermont heir has not been lawfully settled so as to bar the Massachusetts claim, the owner of such claim may in equity follow the property of the estate, but he has no action at law against the heir.</p>

Petition for mandamus. Returnable to and heard at the May term, 1894, upon an agreed statement of facts. The opinion states the case. The files as well as the formal records of a justice are public property and subject to the public inspection. R. L., ss. 832, 828; Story v. Kimball, 6 Vt. 541; Cowley v. Pulsifer, 137 Mass. 392 ; Schmedding v. May, 85 Mich. 1 ; Union Pac. Rd. Co. v, Hall & Morse, 91 U. S. 427. It is only the “books of record” which are subject to inspection.

Bill for the construction of a will. Heard at the April term, 1893, Chittenden county, upon a master’s report. Tyler, chancellor, dismissed the bill with costs. The orator appeals. The opinion states the case. The contingency was too remote, and the estate given the orator was absolute. Gray, Perp., s. 214;' 1 Jar., Wills, 255 ; Village of Brattleboro v. Mead et al., 43 Vt. 556. The court of chancery has no jurisdiction.

Bill in chancery, praying that the defendant town and its cemetery commissioners be enjoined from laying out into lots and selling for burial purposes certain lands within twenty rods of the orators’ dwellings. Heard upon a master’s report at the September term, 1893, Washington county. Rowell, chancellor, decreed for the orators in accordance with the prayer of the bill. The defendant appeals. The opinion states the case.

Assumpsit for one-third the expense of certain repairs upon the plaintiff’s meeting house. Plea, the general issue. Trial by jury at the May term, 1893, Windsor county, Mun-son, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The opinion states the case. Assumpsit would not lie upon the lease, that being an instrument under seal.

E. Benton by which the claim of the state was disallowed. Heard at the September term, 1893, Essex county, Thompson, J., presiding, upon an agreed statement of facts. Judgment for the defendant. The appellant excepts. These fees were not paid by the state nor for its benefit. Therefore it has no interest in them and cannot maintain this action. Wright, v. Terry, 23 Fla. 160; Simon v. Brown, 68 N. Y. 355 ; Benton v. Larkin, 13 Pac. Rep.

Audita querela. Heard at' the December term, 1893,. Bennington county, upon demurrer to the declaration, Ross, C. J., presiding. Judgment that the demurrer is sustained and that the declaration is insufficient. The plaintiff excepts. Exceptions certified to supreme court before final judgment. The case appears in the opinion. Audita querela is the proper remedy.

Trover for the conversion of a safe. Heard upon an agreed statement of facts at the April term, 1893, Franklin county, Thompson, J., presiding. Judgment for the plaintiff. The defendant excepts. In the spring of 1892 O. R. Swett was engaged in the meat business at St. Albans, Vt. April 30 of that year he gave to a travelling agent of E. C. Morris & Co., of Boston, Mass., an order for a safe in the following words and figures : “Boston, Mass., April 30, 1892.

f the probate court for the district of Brattleboro, admitting to probate the will of Almira Tim-son. Pleas, that the testatrix was of unsound mind, and undue influence. Trial by jury at September term, 1893, Wind-ham county, Thompson, J., presiding.- Verdict sustaining the will. The contestant excepts. The testator’s declarations made after the execution of the will are not admissible in support of it. Robinson v. Hutchinson, 26 Vt. 38; Richardson v. Richardson, 35 Vt. 238.

This was an indictment for burglary. Plea, not guilty. Trial by jury atthe-Februarv term, 1894, Orleans county, Rowell, J., presiding. Verdict, guilty. The respondent excepts. • The indictment was a joint one against the respondent and three others. One of the others was acquitted by order of the court. Two of them pleaded guilty before the trial of the respondent.

General and special assumpsit for the expense of keeping a pauper. Plea, the general issue. Trial by jury at the September term, 1893, Chittenden county, Munson, J., presiding. At the close of the testimony the court ordered a verdict for the defendant. The plaintiff excepts. The pauper was a transient in Jericho. Danville v. Putney, 6 Vt. 512 ; Bristolv.

Trespass quare clausum. Plea, the general issue. Trial by jury at the June term, 1893, Caledonia county, Taft J., presiding. The jury returned a general verdict for the plaintiff with special findings, and upon this verdict the ■ court gave judgment for the plaintiff. The defendant excepts. What the defendant proposed to ask the witness Guyer on cross examination grew out of the direct examination, and it was his legal right to ask it.

Assumpsit upon a promissory note. Plea, the general issue. Heard upon the report of referees at the September term, 1892, Rutland county, Taft, J., presiding. Judgment for the plaintiff to recover the full amount of the note. The defendant excepts. The plaintiff had not the title of a bona fide purchaser for value and holds the note subject to the equities of the defendant.

Book account. Heard upon the report of an auditor at the December term, 1893, Caledonia county, Rowell, J., presiding. Judgment for the plaintiffs to recover the amount found due excluding the value of the flour in dispute. The plaintiffs except. The partial payment takes the case out of the statute of frauds. Richardson v. Squires, 37 Vt. 640. As between vendor and vendee the delivery in this case was sufficient.

Information for burglary by breaking and entering the house of William Damon. Plea, not guilty. Trial by jury at the December term, 1893,- Caledonia county, Rowell, J., presiding. Verdict guilty. The respondent excepts. The respondent was informed against jointly with George Valwell and Peter LeClair, both of whom pleaded guilty before the trial of the respondent.

Action on the case. Plea, the general issue. Trial by court at the September term, 1893, Washington county, Rowell, J., presiding. Upon the facts found and certified the court rendered judgment for the defendant to recover its costs. The plaintiffs except. The defendant is an incorporated village.

Ejectment. Plea, the general issue. Heard upon the report of a referee at the September term, 1893, Rutland county, Tyler, J., presiding. Judgment pro forma for the plaintiff. The defendant excepts. The demanded premises were a small triangular piece of land situated near the' intersection of Merchant’s row and the extension of Wales street in the village of Rutland. The referee found that in 1861 a highway was laid near the premises by a court’s committee.

Tort for the false representations of the defendant. Plea, the general issue and a discharge in insolvency. Trial by court at the December term, 1893, Caledonia county, Row-ell, J., presiding. Upon the facts found and certified by the court judgment was rendered for the plaintiff to recover the sum of six hundred twelve dollars and seventy-eight cents. The defendant excepts.

General assumpsit. Plea, the general issue. Heard upon the report of a referee at the December term, Caledonia county, 1893, Rowell, J., presiding. Judgment on the report for the plaintiff. The defendants except. The plaintiff sought to recover the balance due for logs furnished by him to the defendants.

Assumpsit for the expense of maintaining certain paupers alleged to be chargeable to the defendant town. Plea, the general issue.' Trial by jury at the February term, 1894, Orleans county, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

Foreclosure of a mortgage. Heard at the February term, 1894, Orleans county, upon the report and supplemental report of a special master and exceptions of both parties thereto. Rowell, chancellor, decreed for the orator. The defendants appeal. The premises in question were conveyed to the .intestate by one S. D. Bates, administrator of Elexis Bates, in October, 1867.

Petition for a writ of prohibition to prevent the petitionees from proceeding with certain suits against the petitioner. Returnable to and heard at the May term, 1894, upon petition, answer and proofs. The opinion states the case. Justices cannot manufacture jurisdiction by dividing an indivisible cause of action, and if they attempt it, may be restrained. High Exrt. Leg. Rem., s. 778.

Bill for the cancellation of a written instrument. Heard at the April term, 1889, Franklin county, upon demurrer to the bill for want of equity. Rowell, chancellor, overruled the demurrer and decreed for the orator. The defendants appeal. In cases of concurrent jurisdiction the court first taking jurisdiction of the case will retain it unless there is some special reason to the contrary.

<p> Question decided on demurrer cannot be raised ujoon trial. Audita querela. </p> <p>x. When a declaration has been adjudged sufficient on demurrer, the defendant cannot upon the trial in effect claim that the plaintiff must prove facts not alleged in order to entitle him to a recovery. That question is res judicata.</p> <p>2. In audita querela the fact that the judgment, which it is sought to vacate, was not founded on a just claim, if material at all, must be alleged in the plaintiff’s declaration.</p>

Case to recover the value of certain property alleged to. have been destroyed by fire communicated from the locomotive engines of the defendant. Plea, the general issue. Trial by jury at the March term, 1892, Rutland county, Ross, C. J., presiding. Verdict and judgment for the plaintiff. The plaintiff claimed to recover for the destruction of his house, barns and their contents.

<p>Bill for the foreclosure of a mortgage. Heard at the September term, 1893, Rutland county, upon the pleadings and a master’s report. Tyler, chancellor, deci'eed fro forma for the oratxdx in the sum of five hundred fifty dollars and eighty-seven cents, being the amount due September 12, 1893, upon the five notes held by her. The defendant appeals.</p> <p>November 14, 1885, John Tiernan and wife executed the mortgage described in the bill of complaint to the defendant Wade to secure the payment of eighteen promissory notes described in said mortgage.</p> <p>Subsequent to the execution of the mortgage, and before any of the notes fell due, the oratrix purchased four of said promissory notes upon which the master found due September 12, 1893, the sum of four hundred eighty-two dollars.</p> <p>When the oratrix purchased and took these notes she knew that they were mortgage notes, and nothing at that time was said between her and Wade upon the subject of priority.</p> <p>Subsequently the oratrix let Tiernan have a town order for one hundred ten dollars for the purpose of purchasing for her another one of said mortgage notes which was about to fall due and was in amount fifty dollars. Tiernan obtained the money upon this town order, notified Wade that he desired to take up the mortgage note and paid him the money due on that note and the interest on the other notes, saying nothing to Wade about the oratrix or the fact that it was her money, and Wade understood and had a right to understand that Tiernan was paying the note. Tiernan took the note to the oratrix and gave her his own note for the difference between the amount due on the note and the town order.</p> <p>The master found that there was due on this note September 12, 1893, sixty-eight dollars and eighty-seven cents, so that if the oratrix was entitled to recover in respect of the five notes, there was due her as of September 12, 1893, the sum of five hundred fifty dollars and eighty-seven cents.</p> <p>By assigning a portion of the mortgage notes to the oratrix the defendant impliedly agreed that she should stand first as to the security. 2 Jones, Mort., s. 170; Barkdull v. Herwig, 30 La. Am. 618; Wright v. Parker, 2 Aik. 212; Keyes v. Wood, 21 Vt. 331 ; Langdon v. Keith, 9 Vt. 300.</p> <p>The note first maturing is the first lien upon the mortgage security. 2 Jones, Mort., ss. 1699, 1700 and cases cited;, Schultz v. Plank, 33 Am. St. R. 290 (141 111. 1x6) ; Bank v. Tweed, 8 Blackf. (Ind.) 447 (46 Am. Dec. 486) ; Isett v. Lucas, 17 Iowa 503 (85 Am. Dec. 572) ; Grafengether v. Feejervary, 9 Iowa 163 (74 Am. Dec. 336).</p> <p>The assignment of a mortgage note carries with it impliedly an assignment of the security -pro tanto, and nothing more. Blair v. White, 61 Vt. 110; Keyes et ux. v. Wood et al., 21 Vt. 331; Belding v. Manley et al., 21 Vt. 550; 1 Jones, Mort.,'s. 822; English v. Carney, 25 Mich. 178; Hancock’s Appeal, 34 Penn. St. 155.</p> <p>The oratrix cannot recover in respect of the last fifty dollar note, for the mortgagee, Wade, had a right to expect that note was paid. Lancey v. Clark, 64 N. Y. 209; Daniel, Neg. Instr., ss. 1221, 1222; Eastman v. Plumer, 32 N. H. 238 ; Burr v. Smith, 21 Barb. 262.</p>

Trover and trespass for the conversion of certain personal property. Plea, the general issue. Trial by jury at the September term, 1893, Orleans county, Taft, J., presiding. . Verdict and judgment for the plaintiff. The defendants excepted, execution was stayed and the cause passed to the supreme court.

Case for the refusal of the defendant to afford the plaintiff equal facilities of transportation. Plea, the general issue. Trial by court at the December term, 1890, Caledonia county, Tyler, J., presiding. Upon the facts found and certified the court gave judgment for the defendant. The plaintiff excepts. The plaintiff had no coal to ship, but he had a coal business to manage and. he might rely upon the refusal of the defendant as final. Lewis v. Brainerd, 53 Vt. 5x0, 519.

<p>Assumpsit. Heard upon the report of a referee at the December term, 1892, Caledonia county, Ross, C. J., presiding. Judgment fro forma for the plaintiffs. The defendants except.</p> <p>The lease of the machinery carried with it the right to use this machine without further payment- Washb. Ease., 49; 1 Wash., R. P., 465, 467 ; 3 Wash., R. P., 410; Riddle v. Littlefield, 53 N. H. 503 ; Paper Bag Machine Cases, 105 U. 5. 766 ; Cobh v. Cowdery et al., 40 Yt. 25.</p> <p>The defendants never assented to the payment of this further sum by way of royalty, and as to it the contract never became complete. Chitty, Cont., 13; Congdon v. Darcys 46 Yt. 478 ; 1 Add., Cont., par. 20.</p> <p>The defendants having used the machine after notice from the plaintiffs that they must pay the royalty are liable for it. Montgomery v. Richer, 43 Yt. 165 ; Sherman v. Trans. Co., 31 Yt. 162; 1 Add., Cont., §§ 30, 31; Paddoch v. Kittredge, 31 Yt. 384.</p>

<p> Equity. Jurisdiction in settlement of estates. Probate court. Effect of deeree upon final accounting. Lapse of time. Fraudulent concealment. </p> <p>1. Equity will not interfere in the settlement of estates, so long as there is an adequate remedy in the probate court.</p> <p>2. An executrix settled her final account in the probate court in 1869. In that account she made no return of certain property belonging to the estate, but then and afterwards concealed the fact that she had such property. In 1892 she deceased. Held, that equity had no jurisdiction in a suit brought after her death, for the probate court could grant complete relief.</p> <p>3. Her decease would present no obstacle to such relief, for it is the duty of her personal representative to settle her account as executrix.</p> <p>4. Lapse of time would be no bar. She held the property of the estate as a trustee, and her fraudulent concealment of that part sought to be recovered would prevent the running of the statute as to it.</p> <p>5. Granting that the probate court cannot revise its decrees after twenty years, which is not affirmed, there is no occasion here to revise a decree; for its decree upon her final account operated merely upon the property returned, and was not an adjudication that there was no other estate for which she should account.</p>

Bill in chancery. Heard upon bill, answer and master’s report at the March term, 1893, Washington county. Tart, chancellor, decreed for the orator- in accordance with the prayer of the bill. The defendants appeal. The defendants cannot retain the benefits under the orator’s deed and repudiate the conditions upon which they were granted.

Assumpsit. Plea, the general issue. Heard at the September term, 1892, Rutland county, Rowell, J., presiding, upon the report of a referee. Judgment for the plaintiff. The defendant excepts. The plaintiff claimed to recover for a carload of potatoes containing 502 bushels, at 81 f, cents, and the question was whether there had been a sale to defendant.

<p> Transportation of scholars to and from school. Mandamus. </p> <p>The power given by No. 20, s. 6, acts 1892, to use not exceeding 25 per cent of the school money for the transportation oí scholars to and from school is discretionary with the school directors", and their action in that respect cannot be controlled by mandamus.</p>

<p> Liability for accidental injury. Trespass. Directing verdict. When minor may recover for loss of time and medical attendance. Certified execution. </p> <p>1. The plaintiff was injured by the discharge of a revolver in the hands of the defendant while the two were sitting in the bottom of a movingwagon. The defendant had discharged one barrel for amusement, and was fixing the hammer preparatory to returning the revolver to his pocket. Held, that the defendant was clearly liable, for the accident was in no sense an unavoidable one.</p> <p>2. Trespass will lie, for the injury was the direct result of a force put in motion by the defendant.</p> <p>3. The court properly directed a verdict for the plaintiff.</p> <p>4. A minor may recover for his loss of time consequent upon an injury, provided his parent waives claim thereto ; and such waiver may be made after suit begun.</p> <p>5. He may also recover the expense of medical attendance if he is legally bound to pay it.</p> <p>6. A certified execution may issue when the act, resulting in the plaintiff’s injury, is purposely done by the defendant.</p>

<p> Audita querela. To correct error in taxation of costs. </p> <p>Atidita querela will not He to correct an error in the taxation of costs, where the erroneous taxation was not procured by fraud and no offer has been made to pay the legal part of the judgment.</p>

Bill of foreclosure. Heard upon the report of a master at the April term, 1893.