Volume 67 — Vermont Reports

Bill in chancery. Heard at the December term, 1892, Windsor county, upon the pleadings and the report of a special master. Tyler, chancellor, dismissed the bill fro forma. The orators appeal. This suit was brought to establish the rights of the orators in certain water privileges in the village of Windsor.

Assumpsit upon a policy of fire insurance. Plea, the general issue. Trial by jury at the June term, 1893, Bennington county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

Indictment for rape. Plea, not guilty. Trial by jury at the September term, 1893, Chittenden County, Taft, J., presiding. Verdict, guilty. The respondent excepts. The prosecutrix was fourteen years of age and a member of the family of Geo. Hollenbeck, a brother of the respondent. The testimony showed that soon after the alleged of-fence she informed Mrs. Hollenbeck what had happened and requested her to tell Mrs. Gilman, the mother of the prosecutrix.

Assumpsit. Heard upon an agreed statement of facts at the April term, 1894, Chittenden county. • Judgment for the defendant. The plaintiff excepts.

Action on the case. The declaration contained ten counts, of which five were in trover, in the common form, and five, viz., the first, third, fifth, seventh and ninth, with special counts in trespass on the case. The defendant filed a general demurrer to each of the five special counts. Heard upon such demurrer at the March term, Rutland county, 1894, Munson, J., presiding. The court overruled the demurrer and adjudged the counts sufficient, to which the defendant excepted.

Purdy. Trial by jury at the June term, 1893, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The wife was not a competent witness. The statute of 1884 did not authorize suits between husband and wife, and can have no bearing on this question. Smith v. Gorman, 41 Me. 405 ; Libby v. Berry, 74 Me. 286; Barton v. Barton, 32 Md. 214; Wiley v. Hunter, 57 Vt. 486, and cases cited; Larabeev.

Trover, for certain hay and farm products. Heard at the December term, 1893, Orange county, upon the report of a referee, Start, J., presiding. Judgment -pro forma for the defendant to recover his costs. The plaintiff excepts. The plaintiff claimed title to the property in question, under a chattel mortgage, from the defendant to itself.

Replevin to recover one mare and colt. Heard upon the report of a referee at the December term, 1893, Orange county, Start, J., presiding. Judgment pro forma for the return of the property, and that the defendants recover their costs. The plaintiff excepts. The plaintiff claimed title to the property under a chattel mortgage, it being the same chattel mortgage drawn in question in the suit First National Bank of Chelsea v. Fitts, supra, 57.

In the probate court the claimant filed a declaration in general assumpsit. In the county court he amended this declaration by filing two additional counts in case. These counts the defendant moved to dismiss. Heard on this motion at the March term, 1894, Washington county, Tyler, J., presiding. Motion overruled. The defendant excepts. The new counts being in tort, there is a misjoinder.

General assumpsit. Plea, the general issue. Trial by-jury at the June term, 1892, Caledonia county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. General assumpsit will not lie. The plaintiff must prove a warranty, and his declaration must state his case. Camp v. Barker, 21 Vt. 469; Myrick v. Slason, 19 Vt. 121; 1 Chitty, PL, 14 Am. Ed., 355 and notes; Londrigonv. Crowley, 12 Conn. 563 ; Miller v. Watson, 4 Wend. 267.

Action on the case. Heard upon demurrer to the plaintiff’s declaration, at the March term, 1894, Windham county, Ross, C. J.,presiding. Judgment sustaining the demurrer, and for the defendant. The plaintiff excepts.

Justice ejectment. Plea, the general issue. Trial by court at the September term, 1894, Chittenden county, Taft, J., presiding. Judgment that the plaintiff is entitled to the seizen and possession of the premises sued for, and that he recover the sum of eighty-two dollars and sixty-two cents rent and costs. The plaintiff moved for a certified execution, which was granted. To the action of the court in this last particular the defendant excepted.

Assumpsit for the support of a pauper. Plea, the general issue. Trial by jury at the April term, 1894, Chittenden county,.Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The record of a former judgment is only conclusive as to .the facts which were actually litigated in the former suit.

Justice ejectment, Plea, the general issue. Trial by court at the September term, 1892, Washington county, Ross, C. J., presiding. Upon the facts found judgment was given for the defendant. The plaintiff excepts.

Exceptions from the city court of Rutland. Assumpsit by trustee process, in which the Delaware & Hudson Canal Co. was summoned as trustee. The defendant was defaulted. The trustee moved that it be discharged for want of jurisdiction. This motion was overruled, and judgment was rendered against both the principal defendant and trustee. ’The trustee excepts. The plaintifF is a citizen of Colorado and the defendant of New York. The contract was made in Colorado.

<p> Pauper. No recovery for aid furnished before notice. </p> <p>1. Under No. 55, Acts of 1892, that town in which a pauper has his legal residence, whenever acquired, is liable to a town in which he is transient for his support.</p> <p>2. But no recovery can be had for aid furnished before the giving of the notice required by said act to the overseer of the town sought to be charged.</p>

Assumpsit upon a policy of fire insurance. Heard upon demurrer, at the May term, 1894, Washington county, Thompson, J., presiding. Demurrer overruled and declaration adjudged sufficient. The defendant excepts. ' Exceptions passed to supreme court before trial. c The declaration must aver an insurable interest. £>it,arrier v. Peabody Life Ins. Co., 10 W. Va. 507 ; Royal Ins. Co. v. Horton, 14 Ins. L. J. 871 (Ky.) ; Phoenix Ins. Co. v. Benton, 87 Ind. 132; Home Ins.

Trespass quare clausum. Heard at the June term, 1894, Orange county, Ross, C. J., presiding, upon demurrer to the defendant’s rejoinder. Adjudged that the plaintiff’s replication is insufficient. The plaintiff excepts. Exceptions passed to supreme court before final judgment. At common law the owner of cattle must restrain them from running at large. Hurd v. Rut. & Bur. Rd. Co., 25 Vt. 109, 122; Holladay v. Marsh, 3 Wend. 142; The Tonawando Rd.

Assumpsit. Heard upon an agreed statement of facts at the March term, 1894, Washington county, Tyler, J., presiding. Judgment pro forma for the defendant. The plaintiff excepts. The legislature has supreme control over the funds of municipalities. Montpelier v. East Montpelier, 29 Vt. 12 ; 1 Dill., Mun. Cor., ss. 66, 187 ; Laramie County v. Albany County, 92 U. S. 307 ; Cool., Const.

Petition to the supreme court for the county of Washington for the laying of a highway in the towns of Cabot and Walden. Heard upon the repoi’t of commissioners. George M. Webster and Lyndon McAllister filed affidavits that the highway as laid by the commissioners crossed their lands, and that they had never received any notice of the proceedings, and never been heard in the premises. The report did not show such notice.

<p>' Petition for an appeal from the judgment of a justice upon the ground of fraud, accident and mistake. Heard at the June term, 1894, Caledonia county, Tyler, J., presiding. Prayer of the petition granted, and appeal allowed. The petitionee excepts.</p> <p>The county court had discretionary power to grant the relief asked for, and the exercise of that discretion cannot be revised. Harriman v. Swift, 31 Vt. 385 ; Congdon v. Congdon, 59 Vt. 597'; Lillie v. Lillie’s Est., 56 Vt, 714.</p> <p>The reason alleged by the petitioner for not attending was that he forgot the day. This is no legal excuse. Babcock v. Brown, 25 Vt. 550; Davidson v. Heffron, 31 Vt. 687 ; Denison v. True, 22 Vt. 42.</p>

Assumpsit upon a promissory note. Heard upon the report of a referee at the March term, 1894, Essex county, Thompson, J., presiding. Judgment for the plaintiff. The defendant excepts. The plaintiff is not entitled to any greater rights than the payee, for he did not become the owner until long after maturity. Hartford, etc., Co. v. Brush, 43 Vt. 528 ; McClure v. Briggs, 58 Vt. 82 ; Daggett v. Johnson, 49 Vt. 345.

These two suits were heard together, the question in each being the same. The first was trover for a shingle mill, and the second replevin for a circular saw-mill and cider mill. Trial by court at the May term, 1894, Windsor county, Thompson, J., presiding. Upon the facts found judgment was given in the trover suit for the defendants to recover their costs, and in the replevin suit for a return of the property, one cent damages and costs. The plaintiff excepts.

Heard upon an agreed statementof facts at the September term, 1894, Rutland county, Start, J., presiding. The court affirmed the decree of the court of insolvency, holding that the homestead was subject to the claimant’s debt. The defendant excepts. The giving of the new note extinguished the former debt. Hence, the renewal note was not a cause of action existing at the time the homestead was acquired. Ricker v. Adams, 59 Vt. 154; Hutchins v. Olcott, 4 Vt. 549.

Petition for the laying of a highway. Heard upon the report of commissioners and exceptions of the petitioners thereto at the June term, 1894, Caledonia county, Tyler, J., presiding. The court established the highway according to the report. The petitioners except.

Trespass quare clausum. Plea, the general issue. Trial by jury at the June term, 1891, Caledonia county, Munson, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts. The plaintiffs were husband and wife. The deeds introduced by them showed the title in the wife.

<p> Statute of limitations. Failure of former suit as replication. School district warning. Authority of prudential committee to employ himself. Ratification. </p> <p>1. A replication to the statute of limitations setting forth that a previous suit was seasonably begun, hut that the writ in such suit was not duly served, should allege that such failure of service was due to unavoidable accident or to the fault or neglect of the officer serving the same.</p> <p>2. Nor is it enough to allege that the former suit was abated for defective service and the present suit brought within a year from such abatement. It must further appear that the cause of the defective service was within the statute.</p> <p>3. It is no excuse fora defective school district warning that similar warnings had been used for many years.</p> <p>4. The prudential committee of a school district cannot employ himself as a teacher, and cannot recover from the district upon a quantum meruit for services so rendered.</p> <p>5. But if he actually teaches the school, and regularly keeps and returns to the town clerk his school register, and upon the strength of it the district receives and applies its portion of the public money, that will amount to a ratification of his contract and he may recover.</p>

<p>This was a petition to the county court for the appointment of commissioners to review the action of the selectmen of the town of Fair Haven in resurveying a highway under R. L., s. 2920. Heard at the March term, 1894, Rutland county, Munson, J., presiding, upon the report of commissioners ’ and exceptions of the petitioner thereto. The court sustained the exceptions and dismissed the petition. Both parties except.</p> <p>The petition alleged that two of the selectmen of the town of Fair Haven, professing to act under R. L., s. 2920, but wholly without application therefor, and without the existence of any facts which would give them jurisdiction so to act, made a pretended resurvey of the east line of Main street in the village of Fair Haven, and thereby so altered the line of the original highway as to include within its limits certain land of the petitioner; that the said selectmen awarded the petitioner no damages therefor that there was no original survey of such highway which had been preserved, and no terminations or boundaries which could now be ascertained.</p> <p>The commissioners reported that said highway was originally surveyed April 10, 1788, and was, at the point in question, laid out six rods wide. That according to the original description the survey began at the bridge on the west side and the north end thereof; that the bridge at the starting point of the survey had been changed, and that at the time of the action of the selectmen the location of said bridge and the location of the eastern line of the highway in question could not be ascertained; nor could it be ascertained by the commissioners and located with any degree of certainty.</p> <p>The commissioners did not attempt to resurvey the said easterly line, nor to make any award to the petitioner in the matter of damages.</p> <p>Since it was impossible to determine the location of the highway áccording to the original survey, the selectmen had no jurisdiction in the premises. Trudeau v. Sheldon, 62 Vt. 198.</p>

<p> Taking of land for highways. As of what date damages should be assessed. </p> <p>The selectmen took the land of the petitioners for a highway, and made an award of damages. The petitioners applied to the county court for the appointment of commissioners, and subsequently, pending those proceedings, built upon the land taken. Held, that they were entitled to damages for the taking of their land in the condition and situation it was at the time of the proceedings before the selectmen.</p>

Assumpsit. Plea, the general isSue. Trial by jury at the February term, 1893, Grand Isle county, Thompson, J., presiding. At the close of the evidence the court directed a verdict for the defendant. The plaintiff excepts.

Case for personal injuries. 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. The plaintiff was injured while attempting to pass over the buffers and draw bars between two freight cars standing upon a highway crossing in the village of Newport.

Ejectment. Plea, the general issue. Trial by jury at the December term, 1893, Addison county, Munson, J., presiding. Verdict for the plaintiff to recover the possession of the premises and one cent damages. The defendant excepts. September 4, 1889, the plaintiff’s intestate conveyed to the defendant the premises in question, and upon the same day gave him a bill of sale of certain personal property which was on the premises.

Assumpsit. Plea, the general issue. Trial by jury at the June term, 1894, Bennington county, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The testimony was too remote.

Trespass for assault and battery. Plea, not guilty. Trial by jury at the May term, 1894, Windsor county, Thompson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. The offer of compromise could not be shown, x Greenl., Ev., s. 192; 2 Starkie, Ev., 38;. Gerrish v. Sweetzer, 4 Pick. 374-377.

Trover for two three-years-old and three two-years-old heifers. Heard on the report of a referee at the June term, 1894, Caledonia county, Tyler, J., presiding. Judgment for the plaintiff. The defendant excepts. The mortgage was invalid for uncertainty in the description. Pingry, Chat. Mort., ss. 142, 143 ; Bowers v. Andrews, 52 Miss. 596; Nicholson v. Carpe, 58 Miss. 34; Barrett v. Pisch, 76 Iowa 553 ; Parker v. Chase & Buck, 62 Vt. 206. The description was sufficient.

Bill in equity for restraining the defendant from interfering with a certain spring. Heard at the June term, 1894, Caledonia county, upon the report of a master and exceptions thereto. Tyler, Chancellor, decreed pro forma that the orator’s title to the spring of water described in the bill be confirmed, and that the defendant be perpetually enjoined from interfering with the orator’s use thereof. The defendant appeals.

<p>General assumpsit. Pleas, the general issue, payment, and offset. Trial by jury at the February term, 1894, Orleans county, Rowell, J., presiding. Verdict for the plaintiff and judgment thereon. The defendant excepts.</p> <p>The plaintiff claimed to recover, among other things, twenty dollars for services in collecting a note against one P. Morey. In reference to this item his testimony tended to show that he had made a contract with the defendant to collect certain notes, he to receive one-half of what might be collected by way of compensation therefor. Among these notes was the note of said Morey for one hundred twelve dollars and sixty-seven cents. The plaintiff began suit upon this note in the name of the defendant, which Morey resisted upon the ground that the claim was barred by the statute of limitations. Subsequently the defendant settled the case with Morey for forty dollars, and the plaintiff claimed to recover one-half of this sum. He testified that he made no claim in respect to said note, except by virtue of the aforesaid contract.</p> <p>This contract was in writing, and was as follows :</p> <p>“This is to certify that I have this day put into the hands of B. F. Hamilton, deputy sheriff, the following notes for collection, which I agree to take one-half of the amount he may get on any or all said notes and release him from the same ; and the said Hamilton is to make no charge to me for collecting them only the one-half he may collect. “Morgan, Vermont, May 29th, 1886.”</p> <p>(Then follows a list of seventeen claims against different persons, among which are the following) :</p> <p>E. B. Peckham, $9.74.</p> <p>P. Morey, $112.67.</p> <p>Royal Moody, $149.57.</p> <p>“N. B. The said Hamilton has power from me to settle any of the above notes to the best of his judgment, and I am to take one-half of what he gets and release him from the same. J. A. GRAY.”</p> <p>“Received of J. A. Gray the following notes which I agree to try and collect to the best of my ability, and am to have one-half of all I get on them, and have the power to settle any of them as I think best, and the said Gray hereby agrees to take one-half of what I get and discharge me from the same. B. F. HAMILTON.</p> <p>“Morgan, Vt., May 29th, 1886.”</p> <p>The other questions raised sufficiently appear in the opinion.</p> <p>The contract under which the plaintiff claims to recover in respect of Morey note was champertous, and no recovery can be had upon it. 2 Bacon’s Ab., 183 ; 2 Bl., Com., 135 ; 4 Kent’s Com., marginal page 447 and note d ; 1 Repal. L. Die., 192; 1 Bouvier’s L. Die., 250; Stanley v. Jones, 7 Bing. 369; Stevens v. Bogwell, 15 Vesey 139.</p> <p>A champertous agreement cannot be supported either in law or equity. 2 Bacon’s Ab., 187 ; Arden v. Patterson, 5 Johns Ch. 44; Merritt v. Lambert, 10 Paige Ch. 352; Re Blakely, 5 Paige Ch. 311; Knox v. Martin, 3 N. H. 154; Martin v. Clark et al.,8 R. 1.389 ; Lathrofv. Amherst Bank, 9 Met. 489; Ackert v. Barker, 131 Mass. 436; Laney v. Llavender, 146 Mass. 615Nickels v. Kane, 82 Va. 309.</p> <p>The contract in issue was not champertous in this state. Our statute provides what is champerty. R. L., chap. 200; Danforth v. Streeter, 28 Vt. 490.</p> <p>In order to render a contract champertous the subject matter of it must be a suit either in existence or in contemplation. 3 Am. & Eng. Enc., 69; Danforth v. Streeter, 28 Vt. 490.</p>

<p>Information charging the respondent with keeping intoxicating liquor, with intent to sell the same in violation of law. Plea, not guilty. Trial by jury at the June term, 1894, Addison county, Start, J., presiding. Verdict, guilty. Judgment on verdict and sentence imposed. The respondent excepts and execution stayed.</p> <p>In inference to the admission of testimony the exceptions stated:</p> <p>“The state, in order to show whether the liquorcand contents of the bottles so found was intoxicating, improved as a witness said town liquor agent,1who was asked the following question : Question — Did Mr. Cobb, the deputy sheriff, deliver to you last December some bottles and barrels of bottles? which question was seasonably objected to and admitted.”</p> <p>The other question decided appears in the opinion.</p> <p>The offences of keeping with intent to sell and selling are distinct; therefore, a conviction for one cannot be shown to enhance the penalty upon a trial for the other. State v. Lincoln, 50 Vt. 644; State v. Jangraw, 61 Vt. 3 ; State v. Locklin, 59 Vt. 634; State v. Woods, 68 Me. 409 ; Commonwealth v. Marchaud, 155 Mass. 8.</p> <p>R. L., s. 3802, creates but one offence, although that of-fence may be committed in different ways. State v. Remalee, 36 Vt. 672 ; State v. Freeman, 27 Vt. 523 ; Kelley v. The Peo fie, 115 111. 583.</p>

General assumpsit. Heard upon an agreed statement of facts at the June term, 1894, Caledonia county, Tyler, J., presiding. Judgment against the principal defendant, and that the trustee is holden. The trustee and claimant except. The debt due from the principal defendant to the trustee was for the purchase price of the defendant’s homestead, and the question was whether this fund was attachable upon the plaintiff’s debt. The defendant acquired his homestead April 20, 1889.

<p>Bill in equity. Heard upon the report of a special master at the March term, 1894, Rutland county. Munson, Chancellor, dismissed the bill with costs to the defendants. The orator appeals.</p> <p>The orator alleged in substance that the Paragon Marble Company had contract rights in certain real estate belonging to him, and owed him in respect of said contract the sum of three thousand dollars ; that said company was unable to pay the amount so due, and that for the purpose of paying the same and thereby of saving their rights in said property they applied to the defendant Stannard, and procured from him a loan of two thousand five hundred dollars, which was paid to the orator upon such account; that for the purpose of securing said loan it was agreed that the defendant Stannard should take the orator’s note for two thousand five hundred dollars, secured by mortgage upon the real estate in question, and that the marble company, upon the maturity of said note, should pay the same; that the other defendants were the stockholders of the Paragon Marble Company; that it was for their interest, for this reason, that the arrangement should be consummated, and that for the purpose of effecting the same they also agreed with the orator to pay said note when due; that the defendant Stannard knew the purpose of the ' loan; that the marble company and the other defendants were the parties in interest upon the notes, and assented thereto.</p> <p>The prayer of the bill was that the defendant Stannard should be restrained from prosecuting any suit of foreclosure against the premises until he had exhausted his remedy against the other defendants, and that the other defendants be ordered to pay said note.</p> <p>The master found the facts as alleged by the orator in reference to the giving of the note, and the agreement of the Paragon Marble Company to pay the same. He did not find that the other defendants agreed with the orator to pay said note, but that they agreed with the defendant Stannard to indemnify him against loss by reason of the taking of said note and mortgage.</p> <p>This arrangement, by which the two thousand five hundred dollars was borrowed of Stannard for the purpose of paying the orator’s debt, was made by the other defendants, who were stockholders and officers in the corporation, and who were really the parties in interest. In equity they ought to pay the note. They were in effect co-sureties upon the note, the orator having signed at their request and for their benefit. Blake v. Cole, 22 Pick. 97 ; Apgarv. Hiler, 24 N. J. L. 812; Mickley v. Stocksleger, 10 Pa. 345; Hayden v. Thrasher, 28 Pla. 162; Ranelaugh v. Hayes, 1 Vernon, 189; Bishofi v. Day, 13 Vt. 81; Ferrer v. Barrett, 4 Jones Eq. 455.</p> <p>The guaranty of the other defendants was not with the orator, but with the defendant Stannard, and was to indemnify him against loss. The orator can claim no benefit by reason of this contract between Stannard and the other defendants. Forest Oil Company’s Appeal, 118 Pa. St. 138; Skinner v. Tirrell, 159 Mass. 474; Morrison v. Bank, 65 N. H. 253; Liles v. Rogers, 113 N. C. 197.</p>

<p>Assumpsit by trustee process. Heard at the June term, 1894, Caledonia county, Tyler, J., presiding,' upon an agreed statement of facts. Judgment against the principal defendant and trustee. The trustee and claimant except.</p> <p>The house was exempt as a homestead although not completed. Lamb v. Mason, 45 Vt. 502; Spauldings. Crane et al., 46 Vt. 298; Rices. Rudd, 57 Vt. 11; Reske s. Reske, 51 Mich. 541; True s. Morrill, 28 Vt. 674; McClarey s. Bixby, 36 Vt. 254; Jewett s. Guyer, 38 Vt. 218; Finnegan s. Prindeville, 83 Mo. 517 ; Skoutons. Wood, 57 Mo. 380; Shindler s. Givens, 63 Mo. 394; Meinzer s. Diveling, 66 Mo. 375 ; Howard et al. s. Logan, 81 111. 383.</p> <p>There can be no homestead without a house fit for occupancy. Keys v. Bumfs Admr., 59 Vt. 391; 2 Bouvier Law Diet., Tit. Homestead, p.754; Sfaulding v. Cram, 46 Vt. 292 ; Biígbee v. Bemis, 50 Vt. 216 ; True v. Estate of Morrill, 28 Vt. 672 ; Hamford v. Holdman, 16 Bush. 210; Lee v. Miller, n Allen 37.</p>

Assumpsit. Plea, the general issue, with notice of statute of limitations. Heard upon the report of a referee at the June term, 1894, Bennington county, Taft, J., presiding. Judgment fro forma for the plaintiff. The defendant excepts. The burden is upon the plaintiff to show that the defendant had no attachable property in Vermont while absent from the state. Stevens v. Fisher, 30 Vt. 200.

<p> Probate court cannot correct error of law in its decree. </p> <p>An error of law in a decree of the probate court distributing the estate of a deceased person should be corrected by appeal, and if no appeal is taken the decree establishes the law of that case, and cannot be subsequently altered by the probate court.</p>

<p> Evidence. Presumption. </p> <p>The plaintiff claimed that the alleged trespasses were committed on a ten acre parcel of which the original grant was in 1806, the deed of that date being introduced by the plaintiff. If the boundaries of this parcel were as claimed by the defendant, there would be no water upon it; if as claimed by the plaintiff, they would embrace a brook. The plaintifl offered to show “that the ten acre piece had long been used as a pasture, which would have no water in it if its southeast corner was where defendant claimed.” This was excluded. Held, no error, for the offer was not equivalent to an offer to show that the parcel was so used in 1806.</p>

Action on the case for the diversion of a watercourse. Plea, the general issue. Trial by jury at the September term, 1893, Rutland county, Tyler, J., presiding. The court directed a verdict for the plaintiff, submitting to the jury only the question of damages. The defendant excepts.

Bill in equity. ' Heard at the June term, 1894, Caledonia county, upon the report of a master and exceptions of the defendant thereto. Tyler, Chancellor, pro forma decreed, that a perpetual injunction be granted, and that the orator recover forty dollars damages and its costs. The defendant appeals. The orator prayed that the defendant be perpetually enjoined from interfering with its telegraph line opposite his premises, and for general relief.

Action on the case. .Plea, the general issue. Trial by-jury at the September term, 1893, Franklin county, Ross, C. J., presiding. Verdict and judgment for the plaintiff. At the close of the testimony the defendant moved the court to direct a verdict for that there was no evidence tending to show negligence. This the court declined to do, and the defendant excepted. The evidence did not tend to show negligence.

Trespass quare clausum. Plea, the general issue. Trial by jury at the May term, 1894, Windsor county, Thompson, J., presiding. Verdict and judgment for the-plaintiff. The defendant excepts. It was the duty of the plaintiff to repair this fence, and he cannot recover for damages resulting from his neglect to do-so. Keenan v. Cavenaugh, 44 Vt. 268 ; Scott v. Grover,. 56 Vt. 499; Eddy v. Kinney, 60 Vt. 554.

<p>.General assumpsit for the balance claimed to be due for the support of a pauper. Trial by jury at the September term, 1894, Chittenden county, Thompson, J., presiding.</p> <p>The plaintiff sought to recover upon an express contract up to June 1, 1889, and upon an implied contract from June 1, 1889, until December 1, 1890. The court directed a verdict for the plaintiff for the amount due on the express contract, and held that there was no evidence tending to establish an implied contract subsequent to that date. To this latter holding the plaintiff excepted. The opinion states the case.</p> <p>A promise to pay for the support of a pauper may be implied. Tufts v. Town of Chester, 62 Vt. 358 ; Ex parte Ford, 16 B. D. 307 ; Bixby v. Moore, 51 N. H. 402 ; Paddock v. Kittredge, 31 Vt. 378 ; Worcester v. Ballard, 38 Vt. 60; Wolcott v. Wolcott, 19 Vt. 37; Durfey v. Worcester, 63 Vt. 418.</p> <p>The town should have removed the pauper. Durfey v. Worcester, 63 Vt. 418 ; Leicester v. Brandon, 65 Vt. 544.</p> <p>There is no liability in the absence of an express promise. Castleton v. Miner, 8 Vt. 209 ; Ives v. Wallingford, 3 Vt. 224; Houghton v. Danville, 10 Vt. 537.</p> <p>The plaintiff was in no way misled by the neglect of the defendant to remove the pauper. Aldrich v. Londonderry, 5 Vt. 441.</p>

General assumpsit. Plea, the general issue and offset. Trial by jury at the May term, 1894, Windsor county, Thompson, J., presiding. The court directed a verdict for the plaintiff. The defendant excepts. The plaintiff sought to recover for certain articles furnished by him to the defendant about which no question was made.

Bill for the construction of a will by the executors. Heard at the December term, 1893, Windsor county. Thompson, Chancellor, decreed, among other things, that the town of Stockbridge was entitled to the bequests given to it by the will. The heirs of Whitcomb appeal.

<p>Debt on bond. Heard upon the report of a referee at the September term, 1894, Washington county, Munson, J., presiding. Judgment for the plaintiff for the sum found due. The defendant excepts.</p> <p>When Mower accepted the deed of the equity of the defendants he became in equity the principal on this bond, the defendants being sureties. Belmont v. Coman, 22 N. Y. 438; Marsh v. Pike, 10 Paige Ch. 595 ; Paine v. Jones, 76 N. Y. 278; Cornell v. Prescott, 2 Barb. 16; Comstock v. Drohan, 71 N. Y. 12; Flagg v. Gillmacher, 98 111. 293 ; Thorp v. Coal Company, 48 N. Y. 256 ; Bentley v. Vanderheyden, 35 'N. Y. 680; Russell v. Pister, 3 Seld. 171 ; Ferris v. Crawford, 2 Denio 595 ; Marsh v. Pike, 10 Paige 595.</p> <p>The mortgaged premises were the primary fund for the payment of this indebtedness. Johnson v. Zink, 51 N. Y. 336; Jumel v. Jumel, 7 Paige 591; Halsey v. Reed, 9 Paige 453 ; Marsh v. Pike, 10 Paige 595 ; Cherry v. Monroe, 2 Barb. Ch. 629.</p> <p>The plaintiff’s testate by releasing the land discharged the defendants. 1 Sto., Eq. Jur., s. 325 ; Baker v. Briggs, 8 Pick. 122 ; Craythorne v. Swinburn, 14 Ves. 162 ; Hodgson v. Shaw, 3 M. & K. 183; Matthews v. Aiken, 1 Comst. 539; Bangs v. Strong, 4 Comst. 3x5; Classen v. Morris, 10 Johns. 539; Hayes v. Ward, 4 Johns. Ch. 130; Townsend Savings Bank v. Munson, 47 Conn. 399 ; C»hmings v. Little, 45 Me. 187; Glazier v. Douglass, 32 Conn. 399; Remick v. Ludington, 14 W. Va. 383 ; AYsborough v. McAliley, 10 S. Car. 245; Pom., Eq. Jur., 14x9.</p> <p>The defendants claim no more than the full value of the mortgaged premises, and this they get under the report of the referee. Savings Bank v. Thayer, 136 Mass. 459; - Jones, Mort., s. 678a.'</p>

<p> Sale of intoxicating liquor. Knowledge not essential. </p> <p>Under the statutes prohibiting the traffic in intoxicating liquor, ignorance of the nature of the thing sold is no excuse.</p>

Replevin, for a mare. Heard upon the defendant’s motion to dismiss at the September term, 1894, Rutland county, Start, J., presiding. The motion was overruled, and the defendant excepted. The detention and not the original taking determines the venue. Rowe v. Hicks, 58 Vt. 18. The writ shows that the property was detained in Rutland •county, hence the suit was properly made returnable there.

Trover for a quantity of wood. Plea, the general issue. Heard upon an agreed statement of facts at the May term, 1894, Windsor county, Thompson, J., presiding.- Judgment for the defendants. The plaintiff excepts.

<p> Probate court has no jurisdiction of equitable claims. Amendment of declaration in county court. </p> <p>1. Upon an appeal from die disallowance of a claim by the probate court, the county court may allow the filing of a declaration in account in place of a declaration in assumpsit for the same cause of action.</p> <p>2. Where the origin of the claimant’s title is purely equitable, the probate court has no jurisdiction.</p> <p>3. The testimony tended to.show that the intestate of the defendant held title to a farm, which had been partly paid for by the money of the plaintiff’s intestate; that said farm had been sold, and the entire avails paid to'defendant’s intestate. Held, that the probate court had no jurisdiction of the claim of the plaintiff’s intestate to a portion of such avails.</p> <p>4. The equitable powers conferred upon law courts in connection with the action of account have reference to the administration of suits where the title of the parties is legal. They do not confer jurisdiction where the title' is equitable.</p>

<p> Indictment for per jury. Stenographer may read testimony of former trial. </p> <p>x. An indictment in accordance with No. 29, Acts of 1890, “An act to simplify indictments for perjury,” is sufficient.</p> <p>2. The testimony of the respondent upon the former trial, in which it is alleged that the peijuiy was committed, may be read as evidence by the stenographer who took it.</p>

<p> Construction of will. Whether bequest is of specific sum, or income of fund. Settlement of executor1 s account. Legacy, when ‡ayable. </p> <p>1. The testator bequeathed his daughter an “annuity and sum yearly” of three hundred and sixty dollars, and directed his executors to set apart six thousand dollars and keep the same invested in real estate securities, the income thereof to be used in the payment of this legacy. Held, that under the provisions of the will the daughter was entitled to the payment of the three hundred and sixty dollars, irrespective of what income the fund so set apart might yield.</p> <p>2. The allowance of an account of the executors in which they were credited with six thousand dollars set apart for this purpose, would not constitute an adjudication that the daughter was entitled only to the income of that fund.</p> <p>3. Under the terms of the will the legacy would be payable at the end of one full year from the death of the testator, and so from year to year thereafter.</p>

Assumpsit to recover a tax paid under protest. Heard upon an agreed statement of facts at the December term, 1894, Windsor county, Ross, C. J., presiding. Judgment for the plaintiff. The defendant excepts. The only question was whether the plaintiff’s farm was within the territorial limits of the defendant. The facts fully appear in the head note and opinion.

<p> Special administrator. Compounding debts. Heirs es-topped to complain. Administration in part faithful and in part unfaithful. Allowance for services and counsel fees. </p> <p>1. ' A special administrator has no authority to compound a disputed claim, but if he does so in good faith, and those interested in the estate are present upon the settlement of his account and acquiesce in his action, they will be estopped from afterwards setting up his want of authority.</p> <p>2. An administrator should be allowed nothing for services rendered in the maladministration of an estate ; but if his administration has been faithful for a certain period, he may be allowed for services during that period, although his subsequent administration was unfaithful.</p> <p>3. An administrator who has misappropriated to some extent the funds of an estate, may be allowed for counsel fees upon a final accounting in the probate court, if the necessity for such legal services does not arise from the fact of the misappropriation.</p>

Assumpsit. Plea, the general issue. Trial by jury at the March term, 1894, Washington County, Tyler, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts. The construction of this written contract was for the court, and it was error to submit to the jury whether the conceded change in dimensions was ■ a departure from its terms. Denison's Ex. v. Wertz, 7 Sar. & R. 371; Dwight v. Germania Ins.

<p>Proceedings for disbarment. Heard upon the report of a committee. The opinion states the facts.</p>

Covenant broken. Plea, the general issue. Trial by-court at the May term, 1894, Windsor County, Thompson, J., presiding. Upon the facts found by the court judgment was rendered for the plaintiffs to recover the sum of one hundred seventeen dollars thirty-two cents and their costs. The defendant excepts.

Petition of foreclosure. Heard upon the report of a special master at the June term, 1894, Bennington County. Taft, chancellor, decreed foreclosure as to all the pieces sought to be foreclosed except the sixth, and dismissed the petition as to that. The petitioners appeal. April 2, 1889, the defendants, A. H. Potter and wife, executed to the orator, Bales, and the testate of the orator, Paddock, the mortgage which it was sought to foreclose.

<p>1. A confession is admissible, if voluntary, although made while the prisoner is in irons, without counsel, and expecting to die from the effects of poison.</p> <p>2. Whether a confession is voluntary and therefore admissible is a preliminary question for the trial court.</p> <p>3. Upon the determination of this preliminary question the trial court can only consider the evidence introduced, and if, • after the confession has been admitted, testimony is introduced to the jury bearing upon its admissibility, the court should not thereupon change its previous ruling, at least unless requested.</p> <p>4. The respondent had no right to inquire, upon the cross-examination of the officer who arrested him, whether he regarded as suspicious certain circumstances to which he had testified in chief, he not having indicated by his conduct or testimony that he so regarded them.</p> <p>5. Where, upon the facts, the prisoner is guilty upon both counts if upon either, it is no error for the court to tell the jury that if they find him guilty upon the first count they probably will upon the other.</p> <p>6. The court may assume as true in its charge facts which are conceded, and this includes facts which, although in dispute at first, have come to be conceded in the course of the trial.</p> <p>7. The prisoner admitted that he made the confession, but said it was false. At the time he made it he had no knowledge of the evidence of the prosecution against him. The court instructed the jury that they might inquire whether the respondent would have been likely to concoct a story at that time which would have so exactly fitted the surrounding circumstances. Held, no error, it not appearing that the existence of the “surrounding circumstances” was in dispute.</p> <p>8. The jury came in disagreed, but without asking for additional instructions. The court thereupon gave them an additional instruction, which was proper if they had been properly instructed upon that subject before. Held, no error.</p> <p>9. Held, that what the court said about the expense of the trial, in returning the jury to a further consideration of the case, was intended to reconcile them to their duty, and not to promote an agreement, and therefore not error.</p>

Assumpsit for the support of a pauper. Plea, the general issue. Trial by court at the June term, 1894, Caledonia county, Tyler, J., presiding. The court held upon the facts found that the plaintiff was not entitled to recover for the pauper’s support, but might recover fifty cents Tor goods purchased for the pauper, and gave judgment accordingly. The plaintiff excepts. The defendant could not terminate the contract without taking the pauper back.

Assumpsit. The defendant filed two pleas. Heard upon general demurrer to the same at the December term, 1893, Windsor county, Start, J., presiding. Demurrer sustained. The defendant excepts.

Appeal by plaintiff from the judgmentof a justice. Heard at the June term, 1894, Caledonia county, Tyler, J., presiding, upon a motion to dismiss. Motion overruled. The defendant excepts. The judgment was rendered January 17, and the appeal entered June 2. The defendant entered a general appearance June 15. June 16 the plaintiff filed specifications, and July 17 the defendant filed this motion to dismiss.

<p> Set off. Claims must be mutual. Breach of warranty defence to action for ff,or chase ff'ice. </p> <p>1. In an action against two, the individual claim of one defendant against the plaintiff cannot be pleaded in offset.</p> <p>2. But, the action being upon a note given for the purchase price of an article sold by the plaintiff to one of the defendants, a breach of warranty in the sale may be shown in defence.</p> <p>3. If the judgment is correct, it will not be reversed for error in the proceedings.</p>

<p>Assumpsit for the support of a pauper. Heard upon an agreed statement of facts at the April term, 1894, Franklin county, Taft, J., presiding. Judgment for the defendant. The plaintiff excepts.</p> <p>The pauper’s residence in his father’s family was his residence. Acts of 1892, No. 55 ; Wells v. West Haven, 5 Vt. 322; Morristown v. Fairfield, 46 Vt. 33 ; Anderson v. Anderson, 42 Vt. 350; Marshfield v. Tunbridge, 62 Vt. 455-</p> <p>He received no aid from any town, and therefore supported himself. Craftsbury v. Greensboro, 66 Vt. 585.</p> <p>It has been once decided that there can be no derivative residence. Marshfield v. Tunbridge, 62 Vt. 455.</p>

Trial by court at the April term, 1894, Franklin county, Taft., J., presiding. Judgment upon the facts found by the plaintiff in the sum of one thousand two hundred seventy-seven dollars and eighty-three cents, and costs. The defendants except. The plaintiff brought suit as the administrator of Emeline Hawkins, and the defendants were the administrators of H. P. Seymour.

<p> Building on land of another real estate. Tenancy from year to year. Notice to quit. </p> <p>1. A building erected upon the land of another under arrangement with the owner of the land that it shall be removed when required, is real estate.</p> <p>2. If a tenant has occupied such a building under a parol lease for many years, paying an annual rent, he is entitled to a notice to quit of six months, looking to the end of the year.</p>

Indictment for an assault with intent to kill. Trial by jury at the September term, 1894, Chittenden county, Thompson,. J., presiding, Verdict, guilty. Judgment and sentence on verdict. The respondent excepts. The respondent was indicted for shooting at one McElliott while McElliott and another police officer were attempting to arrest him.

<p> Pauper. Residence. Intention. Im-plied contract. Evidence. </p> <p>1. A helpless pauper of full age, who resides in',his father’s family and is supported by him without aid from any town, is a resident of the town in which the father lives.</p> <p>2. Where such a pauper has been for many years a member of his father’s family, and has no other home and no means of providing one, and the father removes with his family, including the pauper, into another town, the residence of the pauper changes with that of the father, irrespective of any intention which the pauper may or may not have as to the place of his home.</p> <p>3. The, pauper was a helpless cripple without means, who for many years had lived in his father’s family and been supported by him. Previous to December, 1888, the defendant town had contracted with the father to support the pauper until June, 1889. In December, 1888, the father, against the protest of the defendant, removed with the pauper into the plaintiff town, and continued to l'eside there, supporting the pauper without further axTangement with the defendant until his death, November 1, 1890. Therexxpon the plaintiff was applied to, and assumed the support of the paxxper. Held., that the plairxtiff could not recover of thé defendant for the support thus furnished, no claim being made under No. 55> Acts 1892.</p> <p>4. The defendant was under contract with the pauper’s father to support him until the termination of a certain suit, which ended June 1, 1889. The plaintiff claimed that after the termination of this suit the father supported the pauper under an implied contract with the defendant. Held, that evidence that the father learned of the termination of the suit and afterwards began and prosecuted a claim against the defendant for support furnished subsequently to June, 1889, had no tendency to show such an implied contract, and was improperly admitted.</p>

<p>Assumpsit. Plea, the general issue. Trial by jury at the September term, 1894, Orleans county, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff claimed to recover upon a policy of accident insurance. Upon the trial he offered in evidence a paper purporting upon its face to be an accident ticket, the material part of which is as follows :</p> <p>“The Travelers Insurance Company, of Hartford, Conn., hereby insures G. D. Bickford, of Barton, Vt., for the term fixed by the coupons still attached hereto, against loss of time not exceeding twenty-six consecutive weeks, resulting from bodily injuries effected during the term of this insurance, through external, violent, and accidental means, which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business ; or in event of death solely therefrom within ninety days, will pay the principal sum to his legal representatives; except that this ticket insures females against death only; does not insure persons under sixteen or over seventy years old, employes on public conveyances while on duty, nor persons bereft of reason, sight or hearing; covers only injuries received within the civilized limits of the United States, Canada, Newfoundland, Mexico, West Indies and Bermudas, including travel by regular passenger or mail lines on sea between such limits ; that the company’s total liability hereunder shall not exceed three thousand dollars ; that its limit of insurance under accident tickets is six thousand dollars, with thirty dollars weekly indemnity, and it will return on demand to insured, or his legal representatives, all premiums paid in excess thereof. With above exceptions this ticket grants fifteen dollars per week indemnity for disabling injuries, three thousand dollars principal sum ; provided,</p> <p>“2. Immediate written notice, with full particulars and full name and address of insured, is to be given said company at Hartford of any accident and injury for which claim is made. Unless affirmative proof of death or duration of disability, and of these being the proximate result of external, violent, and accidental means, is so furnished within seven months from time of accident, all claims based thereon shall be forfeited to the company. No legal proceeding for recovery hereunder shall be brought within three months after receipt of proof at this office, nor at all unless begun within one year from date of alleged accident.</p> <p>“Rodney Dennis, Secretary. J. G. Battertan, President.” There were attached to the ticket two coupons, which extended the same for two days from the date punched out in the margin, which was January 6’, 1893, twelve o’clock noon.</p> <p>The defendant objected and excepted to the introduction of this ticket, for the reason that there was no evidence to show ■its execution, or that it had been issued and delivered to the plaintiff, and for the further reason that no recovery could be had upon the same under the general counts.</p> <p>The declaration contained the ordinary common counts in assumpsit, and also contained the following special count:</p> <p>“In a plea of the case, for that the.defendant, heretofore, to wit, on the date of this writ, at Barton, in the county of Orleans, was indebted to the said plaintiff in the sum of five hundred dollars, for money due to said plaintiff from said defendant upon an accident ticket issued by said defendant to said plaintiff on the sixth day of January, A. D. 1893, insuring said plaintiff against loss of time not exceeding twenty-six weeks ; and in consideration thereof, the said defendant then and there undertook and faithfully promised the plaintiff to pay him, the said plaintiff, the sum so due as aforesaid when thereto afterwards requested.</p> <p>“Yet though often requested, the defendant has never paid the same, but wholly neglects and refuses so to do.”</p> <p>The only pleadings filed by the defendant were the general issue. County court rule No. 12, which is referred to in the opinion of the court, reads as follows:</p> <p>“If an action is founded on an instrument purporting to have been signed by the defendant, the plaintiff' shall not be required to prove the execution of the same on trial unless the defendant shall have filed within the rule for filing special pleas a plea of the general issue, with a notice thereto appended that he shall deny the execution of such instrument.</p> <p>“If handwriting is to be disputed in a case when the execution of a written instrument is put in issue by the pleadings, special notice thereof shall accompany the pleading raising such issue.</p> <p>“This rule shall apply to pleas in offset, mutatis mutandis.”</p> <p>The plaintiff was injured January 7, 1893. Ten weeks from that date he executed and forwarded to the company proofs of claim which were duly received. Upon the trial the defendant insisted that the plaintiff could not recover for injuries after the date of this proof of claim, which was the only one filed by him, excepted to the admission of all evidence as to disability subsequent to that time, and requested the court to charge the jury that the recovery of the plaintiff must be limited to the sum of one hundred and fifty dollars. The court instructed the jury that they might give the plaintiff his actual damages which occurred after the filing of said proof, as well as before, and to this the defendant excepted.</p> <p>At the close of the evidence the defendant moved for a verdict in its favor, and with reference to this motion the exceptions were as follows :</p> <p>“At the close of all the evidence the defendant asked the court to direct a verdict for the defendant, upon the ground that no recovery could be had under the declaration as disclosed by the evidence, which is hereby referred to and made a part hereof, which motion was overruled, to which the defendant excepted.”</p> <p>The defendant further moved the court to dismiss the suit, for that it had no jurisdiction as appeared from the evidence. This motion was overruled, and the defendant éxcepted.</p> <p>The jury returned a verdict for the plaintiff in the sum of two hundred and ten dollars.</p> <p>The declaration of the plaintiff was in general assumpsit. Under this declaration the plaintiff could not recover upon the special contract set forth in the accident ticket. Cittter v. Powell, 2 Smith’s Lead. Cas. 7th Ed. 61, 62; Beede v. Fraser dr Co., 66 Vt. 114.</p> <p>If the cause of action as set forth originates in a contract, the contract must be proved as laid. Way v. Wakefield, 7 Vt. 223; Wilkins v. Stevens, 8 Vt. 214; Wainwright v. Straw et al., 15 Vt. 215 ; Matlocks v. Lyman & Cole, 16 Vt. 113; Stearns v. Haven et al., 16 Vt. 87 ; Porter & Ballard v. Munger, 22 Vt. 191; Perry v. Smith, 22 Vt. 301 ; Kent v. Bowker, 38 Vt. 148 ; Groot v. Story, 41 Vt. 533 ; Doon v. Ravey, 49 Vt. 293 ; Bradley v. Phillfis, 52 Vt. 517; Chafinan v. Goodrich, 55 Vt. 354; State v. St. Johnsbury, 59 Vt. 332 ; Mann et al. v. Bur chard et al., 40 Vt. 339.</p> <p>Where a special contract contains conditions precedent, the performance of those conditions must be alleged in the declaration; Donahue v. Windsor County Ins. Co., 56 Vt. 374; Cooledge v. Continental Ins. Co., 67 Vt. 14; 1 Archibald’s Nisi Prius, *133 ; 1 Saund., PI. and Ev., *132 ; Lamfhcre Y. Cowen, 42 Vt. 182.</p> <p>There is no essential difference between the general counts and the special count in this declaration ; both proceed upon an absolute promise, while the promise proved was conditional. Latham et al. v. Rutley et al., 2 B. & C. 20; Strong v. Rule, 3 Bing. 315.</p> <p>The conditions in this contract do not modify the promise, but can be urged merely by way of defence. Hence, their performance need not be averred in the declaration. Seyk v. Miller's Nat. Ins. Co., 74 Wis. 67 ; Cooledge v. Continental Ins. Co., 67 Vt. 14; Tri-fijo & Bailey, Admrs., v. Life Ins. Co., 55 Vt. 100. .</p> <p>The contract being for the payment of money, and having been fully executed upon the part of the plaintiff, a recovery maybe had upon the common counts. 1 Chitty PI. 342; Way v. Wakefield, 7 Vt. 223; Wainwright v. Straiv & Cunningham, 15 Vt. 215 ; Mattocks v. Lyman et al., 16 Vt. 113 ; Bradley v. Phillips, 52 Vt. 517 ; Chaffee v. Rutland Rd. Co., 55 Vt. 110; Bank of Columbia v. Patterson's Admr., 7 Cranch 299 ; Sutton v. Bennett, 1 Aik. 197 ; Lat-ham v. Barrett, 1 Vt. 247; Stevens v. Talcott, 11 Vt. 25.</p> <p>The plaintiff was under no obligation to prove the execution of this instrument since the defendant had not denied it by its pleadings. County Court Rule No. 12.</p> <p>The plaintiff may recover for damages subsequent to the filing of his proof. The object of requiring the furnishing of proof of claim is to establish the fact and nature of the injury. DeGoff v. ffueen's Ins. Co., 38 Me. 501; Mut. Assur. Soc. v. Scottish U. & N. Ins. Co., 10 Am. St. R. 8Í9; Afiieens Ins. Co. v. Young, 11 Am. St. R. 51; McGlinchey v. Fid. & Cas. Co., 80 Me. 256 ; Olson v. St. Paul F. & M. Ins. Co., 35 Minn. 432; Teutonic F. Ins. Co. v. Mund, 102 Pa. 89; Btirkhard v. Travelers Ins. Co., 102 Pa. 262; Hoffman v. AEtna F. Ins. Co., 32 N. Y. 405.</p> <p>Even if the court is of the opinion that the plaintiff can only recover for the ten weeks previous to the filing of his proof of claim, still the county court has jurisdiction, for it does not affirmatively appear that the suit was not brought in good faith. Laddy. Hill, 4 Vt. 164; Kitridge v. Rollins, 12 Vt. 541; Stafford v. Richardson, 13 Vt. 224; Cooley v. Aiken, 15 Vt. 322 ; Waters v. Langdon, 16 Vt. 570; Man-welly. Briggs, 17 Vt. 176 ; Henry v. Tilson, 17 Vt. 479; Brainard v. Austin, 17 Vt. 650 ; Joyal v. Barney, 20 Vt. 154; Sanborn v. Chittenden, 27 Vt. 171; Hally. Wads-worth, 28 Vt. 419 ; Powers v. Thayer, 30 Vt. 361; Clark v. Crosby, 37 Vt. 188; Scott v. Moore, 41 Vt. 205 ; Field v. Randall & Durant, 51 Vt. 33 ; Worcester & Woodruff v. Lams on, 55 Vt- 350 ; Drown & Willard v. Forrest, 63 Vt. 557.</p>

Case for the negligence of the defendant. Plea, the general issue. Trial by court at the February term, 1893, Thompson, J., presiding. Upon the -facts found the court gave judgment for the plaintiff. The defendant excepts. The plaintiff claimed to recover for damages to his buggy-wagon occasioned by the negligence of the defendant. June 25, 1891, the plaintiff sold the wagon in question to one Caswell, and took his note therefor, payable on demand.

Case for the negligence of the defendant. Plea, the general issue. Trial by jury at the September term, 1893, Rutland county, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

<p> Will. Undue influence. Circumstantial evidence may establish. Habit of intoxication. </p> <p>1. While it must appear, in order to avoid a will upon that ground, that the undue influence operated upon the very act of making the will, that fact need not be established by direct testimony, but may be inferred from circumstances, although opportunity alone upon the part of the person to be benefitted is not enough.</p> <p>2. Held, that the circumstances in this case tended to show undue influence.</p> <p>3. It appeared that the testator had been for some time habitually addicted to the excessive use of intoxicating liquor. The evidence of the proponent tended to show that shortly before the execution of the will the testator drank some whiskey, but was comparatively sober and rational at the time, while the testimony of the contestants tended to show that he was so drunk that he knew nothing. Held, error to instruct the jury that they were not to consider the habits of. the testator as to intoxication in determining his condition a't that time.</p>

Indictment for larceny of two horses, two harnesses and a buggy wagon. Plea, not guilty. Trial by jury at the June-term, 1894, Bennington county, Taft, J., presiding. Verdict and judgment of guilty. The respondent excepts.

<p>Indictment for keeping a house of ill'fame. Trial by jury at the June term, 1894, Caledonia county, Tyler, J., presiding. Verdict and judgment of guilty. The respondent ■excepts.</p> <p>The keeping of different houses at different places constituted different offences, and evidence thereof could not be given under one count. Bacon’s Abridgment, G. p. 84; ‘Janson v. Stewart, 1 T. R. 754.</p> <p>Evidence of reputation was inadmissible. State v. Board-man, 64 Me. 523 ; 2 Bish., Crim. Proc., ss. 112, 116; Tor-r-ey v. State, 60 Ala. 97 ; State v. Lyon, 39 Iowa 379 ; Commonwealth v. Stuart, 1 S. & R. 341 ; United States v. Jourdin, 4 Cranch C. C. 338 ; State v. Foley, 45 N. H. 466.</p> <p>Evidence of reputation that the house was one of ill fame was not only competent, but necessary. Caldwell v. State, 17 Conn. 467 ; x Bish., Crim. Law, s. 1039 > State v. Hand, ■7 Iowa 411.</p> <p>The respondent may be convicted of carrying on the business at different places continuously during the time alleged. State v. Nixon, 18 Vt. 70; Com. v. Shea, 150 Mass. 314.</p>

Action on the case for false representations in the sale of •a horse. Plea, the general issue, with notice that the defendant sold the horse as deputy sheriff upon execution. Trial by jury at the September term, 1892, Washington County, Ross, C. J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts.

Indictment for murder in the first degree. Plea, not guilty. Trial by jury at the June term, 1892, Bennington County, Munson, J., presiding. Verdict of murder in the second degree. The respondent excepts. The respondent was indicted for the murder of one Maggie Shea. It appeared that the deceased, a married woman, living separate from her husband, had kept house for the respondent, a married man, not living with his wife, for some years before her death.

Indictment for an assault with intent to commit rape. Plea, not guilty. Trial by jury at the December term, 1894, Lamoille county, Start, J., presiding. Verdict, guilty. The respondent excepts. The indictment was for a criminal assault upon a female ■child four and one-half years old. She was not permitted to testify, for the reason that she did not understand the nature of an oath. The testimony of the prosecution tended to show that the assault was committed in a barn.

Debt on bond. Heard on the report of a referee at the September term, 1894, Washington county, Munson, J., presiding. Judgment for the plaintiff. The defendant excepts. The opinion states the facts. The invalidity of the grand list cannot be urged as to taxes actually collected. Butler v. Jarvis, 22 N. E. (N. Y.) 561;' Lynn et al. v. Mayor of Cumberland,'26 Atl.

Trial by court at the June term, 1894, Caledonia county, Tyler, J., presiding. Judgment for the plaintiff. The defendant excepts. The administrator de bonis of Brainerd Flint’s estate cannot maintain this action. The heirs are the proper parties. Potts v. Smith, 24 Am. Dec. 359; Sargent v. Kimball, 37 Vt. 323 ; Slaughter v. Froman, 17 Am. Dec. 33 ; Alsop v. Mather, 21 Am. Dec. 703 ; Chamberlain, Admr., v. Bates, Admr., 27 Am. Dec. 667; Stubblefield v. McRaven, 43 Am.

<p>Case for injury to the plaintiff’s well. Plea, the general issue. Trial by jury at the March term, 1893, Taft, J., presiding. At the close of the testimony the court directed a verdict for the defendant, and the plaintiff excepted.</p> <p>Whittier was properly joined as a co-plaintiff with his wife and his testimony should have been admitted. Acts of 1886, No. 45 ; Smith v. Fitzgerald, 59 Vt. 451; Simkins v. Eddie, 56 Vt. 612; Babcocks v. Gilford, 47 Vt. 519. ■</p> <p>The husband could not testify and had his testimony been admitted the court ought still to have directed a verdict. Simkins v. Eddie, 56 Vt. 612; Wells v. Tucker, 57 Vt. 223.</p> <p>The defendant is not liable for having cut off the percolating water which ran into the plaintiff’s springs. Chat-field v. Wilson, 28 Vt. 49; Chatfield v. Wilson, 31 Vt. 358; Harwood v. Benton & Jones, 32 Vt. 724.</p>

<p> Trustee de son tort. Suit in equity against by heir to estate. Multifariousness. </p> <p>1. If two persons jointly take possession of the real and personal estate of an insane person and manage the same, they thereby become guardians by construction, and are liable to-account under the rules applicable to a trustee de son tort.</p> <p>2. An heir of such insane person may, after his decease, maintain a suit in equity for an accounting-to the estate against such intermeddlers, although one of them is the administratrix of the estate and the other has presented a claim against it.</p> <p>3. Such a bill is not multifarious because it sets out particular-instances in which the defendants have received moneys for which they ought to account, so long as it goes for an accounting upon their whole proceeding.</p>

<p> Power of legislature to make regulations for public health. Reasonableness for the court. Pigpens. </p> <p>1. The legislature may jarevent the introduction and spread of contagious diseases, and the necessity and propriety of particular regulations to that end are primarily a question for legislative determination; but whether such regulations are reasonable, impartial, and consistent with the state policy is a question for the court.</p> <p>2. A regulation by the State Board of Health under legislative authority, applicable to the whole state without reference to location or condition, that no one shall maintain a pigpen within one hundred feet of a well or spring of water used for drinking purposes, or within one hundred feet of any street or inhabited house, is unreasonable and void.</p>

<p> Note procured by fraud. Promise not to collect. Fraud without injury ¡ </p> <p>1. While a promise by the payee at the time of obtaining a promissory note not to enforce it, cannot be shown in defence to a suit on the note, it may be shown that the note was obtained by fraudulent representations of which the statement that it should be returned to the maker before maturity was one.</p> <p>2. Held, that the evidence tended to show such fraudulent representations.</p> <p>3. The defendant was surety on the bond of a town constable who had made default in the service of process. The plaintiff, as the attorney of the party damaged by such default, fraudulently induced the defendant to give the note in suit for the amount of the default. Held, that it could not be affirmed as matter of- law that the defendant was not injured by the fraud, for his liability as bondsman might never have been established against him.</p>

<p>Appeal from an order of the court of chancery for the county of Franklin at the April term, 1895, directing the sale of certain receivership property, Rowell, chancellor. Edward A. Sowles and Margaret B. Sowles appeal. The opinion states the case.</p> <p>After the decree of the probate court neither the legatees nor creditors of Hiram Bellows had any lien upon this property. Bellows v. Sowles, 57 Vt. 411; Weeks v. Sowles, 58 Vt. 696; Witters, Pec., v. Sowles, Exr., et al., 32 Fed. Rep. 130, 135 ; Sowles v. Witters, Pec., 39 Fed. Rep. 403, 408 ; Carbell v. Hofkins, 41 Vt. 250.</p> <p>The court having jurisdiction had power to order a sale. High, Receivers, ss. 15, 192,196; Crane v. Ford, Hop. Ch. 1x4; First National Bank v. Shedd, 121 U. S. 87; Miller v. Sherry, 2 Wall. (69 U. S.) 237 ; Libby v. Rosecrans, 55 Barb. 219, 220.</p> <p>The court could not make an order of sale except upon petition. High, Receivers, s. 197; Banks;. Burnham, 58 Mich. 315 ; Sherman v. Lyon, 2 How. U. S. 43; Rorer on Jud. Sales, s. 66.</p> <p>The court must have jurisdiction both of the subject matter and of all persons in interest. Rorer on Jud. Sales, s. ■71, n. I; High on Receivers, s. 196; Tinch v. Hoyt, 6 N. H. 370; Dutton v. Hudson, 6 Cow. 222 ; Sibley v. Waffle, 16 N. Y. 185 ; Gibbs'v. Shaw, 17 Wis. 197.</p>

<p> Insolvency. Fraudulent conveyance. Practice. Evidence. </p> <p>1. The suit being to recover property conveyed in fraud of the insolvency law, the amount of debts due the insolvent is material and the exclusion of evidence upon that subject error.</p> <p>2. Held, that evidence that a part of the proceeds from the property conveyed was used to pay a note of the insolvent should have been admitted.</p> <p>3. As bearing upon his intent, the one taking the conveyance may state that he had no doubt that the insolvent would pay his debts in full.</p> <p>4. A judgment upon the direction of a verdict will be reversed, if the court during the trial excluded evidence tending to support the cause of action upon the part of the adverse party.</p> <p>5. The sale by a retail dealer of his entire stock in trade is not made in the ordinary course of business and is frima facie in fraud of the insolvent law under R. L. s. 1861.</p>

Bill in equity. Heard upon the pleadings, a master’s report, and exceptions of both parties thereto, at the September term, 1894, Orleans county. Tyler, chancellor, overruled the exceptions and dismissed the bill as to both defendants. The orator appeals. The orator had for some time been engaged in the whip business at Derby Line previous to March xst, 1889, under the firm title of the Rock Island Whip Company.

<p>Bill for the dissolution and winding up of a co-partnership and the setting aside of certain conveyances of real estate as in fraud of partnership debts. Heard upon the pleadings and a master’s report, and exceptions by the defendants thereto, atthe December term, 1894, Windsor county. Ross, chancellor, overruled the exceptions of the defendants and decreed that the co-partnership be dissolved; that the real estate in question was partnership property; that the conveyance of the same by the defendant, Geo. M., to the defendant, Milton G., was void, and that the same to be annulled and the real estate sold regardless thereof. The defendants appeal.</p> <p>From the master’s report it appeared that in 1888 the orator was the owner of certain mills, water privileges, etc., and a considerable quantity of timber land, and was engaged in taking the timber from said land and manufacturing it into lumber, and that he also owned a store and quite an amount-of personal property. The defendant, Geo. M., who was the nephew of the orator, entered into' negotiations with the orator for a purchase of a one-half interest in all this various property and the formation of an equal partnership with the orator, for the carrying on of the business in which the orator was then engaged; and such an arrangement was finally concluded. By the terms of this agreement the defendant was to pay the orator the money for his interest in the property. In January, 1889, the orator conveyed in pursuance of the agreement, a one-half interest in all the property to Geo. M. Geo. M. could not pay as he agreed, but paid a certain amount in cash, gave his note to the orator for a certain other amount, securing the same by mortgage on the real estate, and the balance, about seven hundred dollars was charged to Geo. M. and credited to the orator upon the books of the company. This sum was never paid but had been increased to something over eight hundred dollars at the time of the bringing of this suit.</p> <p>The orator and Geo. M. began business as partners as aforesaid in December, 1888, before the conveyance and continued as such to the date of the filing of the bill in this case. In March, 1889, they drew up and signed written articles in which they attempted to reduce to writing their previous partnership agreement.</p> <p>The defendant, Geo. M., was the maker of a note for $1200 on which the defendant, Milton G., his father, was surety. For the purpose of securing the said Milton G. against liability, upon said suretyship, on April n, 1891, Geo. M. conveyed to him by deed absolute his entire interest in the aforesaid real estate. The orator did not learn of this conveyance until some months afterwards, but as soon as he did he vigorously protested against the same and insisted that the real estate was held for the payment of the partnership debts notwithstanding said conveyance.</p> <p>The partnership continued until November, 1893, when this bill was filed. The master found that the partnership debts April 11, 1891, amounted to. some five thousand dollars and that the value of the partership assets, including the real estate, was only about six thousand dollars, and that the amount of the debts continued about the same down to the commencement of this suit, although the orator had been obliged to take up and pay a portion of the same from his own means. The question litigated was whether the conveyance to Milton G. was void, .as to the indebtedness of the partnership and as to the indebtedness of Geo. M. to the partnership. The defendants insisted that it was valid for the reason that the real estate was not a part of the partnership assets, but only the use thereof. The master found that it was the intention of the parties that it should be, and that the same was a'part of the .partnership assets.</p> <p>The master found that the defendant, Milton G., knew, ■soon after the conveyance of April 11, 1891, that the orator ■claimed that these conveyances were in fraud of his rights. The first exception of the defendants was that there was no evidence tending to support this finding. Upon this point the master reported :</p> <p>“This finding is based upon showing that he importuned .his co-surety, Levi B. Moore, upon the Vilas E. Moore note, to share with him in the security afforded by said conveyances from his son, that the said Levi B. Moore flatly declined so to do, and assured the said Milton G. that there would be trouble about it; upon the intimate relations existing between father and son. The communications from .son to father mentioned on pages three and four of this report, and the knowledge of the father of the apparent way in which the business was conducted. The inadequate explanation by both son and father of giving of the absolute deeds instead of a mortgage.”</p> <p>The other questions decided sufficiently appear in the opinion.</p> <p>A partner cannot convey partnership property in satisfaction of his individual debt. 3 Kent, 43 ; Pars., Part., s. 90 and note ; Washburn v. Bank, 19 Vt. 278 ; Miner v. Pierce, 38 Vt. 610 ; Dyer v. Clark, 5 Met. 652 ; Huiskamp v. Mo-line Wagon Co., 121 U. S. 3x0; Matlack v. James, 13 N. J. Eq. 126; Farwell v. St. Paul Trust Co., 45 Minn. 495.</p> <p>The tax inventory was properly received to show the liabilities of the firm. Flint v. Flint, 6 Allen 34 ; Kenerson v. Henery, 101 Máss. 152.</p> <p>No cause is shown for the dissolution prayed for. 1 Sto., Eq. Jur., s. 673.</p> <p>As between the partners the real estate was not firm ássets and creditors can only assert the equities of the partners. Rice v. Barnard, 20 Vt. 479; Kimball v. Thompson, 13 Met. 283 ; Robb v. Mange, 14 Gray 534; Fitzpatrick v. Flannagan, 106 U. S. 648.</p>

<p>Trust. Conveyance by trustee. Htisband and wife.. Parol testimony. Evidence.</p> <p>1. A concession that a grantee in a deed of real estate and personal property “took no beneficial interest in the property thereby” ; that “after the delivery of the deed the beneficial use and occupancy of the farm and personal property remained in the grantor the same as before,” establishes the fact that the grantee is merely a passive trustee for the grantor.</p> <p>2. A deed from such a trustee to one not a bona fide purchaser for a valuable consideration without notice conveys no greater estate than the trustee has.</p> <p>3. But if the original grantor be the husband and the subsequent conveyance from the trustee is to the wife, and the latter conveyance is with the consent of the husband, then the law presumes that he intended that she should take a beneficial interest in the property, although no valuable consideration moved from her to the trustee ; and this presumption should be weighed in determining whether she holds as a trustee or otherwise.</p> <p>4. If the bill seeking to charge the wife as a trustee of such property for the benefit of the heir and creditors of the husband, alleges that the conveyance was made to her without the knowledge or assent of her husband, and she in her answer asserts that it was with his knowledge and assent, she is entitled upon a trial on the merits before a master, to have that allegation considered by the master as evidence in her favor. c</p> <p>5. Held, that the bill and answer did not put in issue whether the defendant was a purchaser for value, it being practically conceded that she was not, but did put in issue whether the the conveyance was with the consent of the husband.</p> <p>6. The property in question was conveyed by the husband to one admitted to be a passive trustee, and by him to the wife. Held, that it might be shown by parol whether the wife also took as a trustee. ■</p> <p>7. 'The acts and declarations of the defendant would be admissible to establish a trust in her.</p>

<p> One may be in fact principal, although signing as surety. Chattel mortgage. </p> <p>1. The plaintiff claimed title through a chattel mortgage. The defendant insisted that the mortgage was void because the note secured was described as an absolute indebtedness, whereas, in fact, it was collateral for the payment of another note upon which the plaintiff was surety for the mortgagor. Held, that the evidence tended to show that the latter note was the debt of the plaintiff, although he signed the same as surety.</p> <p>2. A mortgagee who takes possession of personal property under a chattel mortgage, valid between the parties, but invalid as to third persons, will hold it as against one who claims under bill of sale taken after notice in fact of the mortgage to secure an existing debt.</p>

<p> Joint liability for trespass. Notice to produce. Proof of loss. Evidence. </p> <p>1. The declaration contained two counts ; one for assault upon th'e plaintiff, and the other for trespass to her goods. Two of the defendants justified as to the first count, and .all as to the second. The jury, by special verdict, assessed damages on each count. Held, that a judgment for the entire damages against all the defendants was erroneous, for that it did not fairly appear from the exceptions that the jury had found all the defendants guilty under the first count.</p> <p>2. Notice to produce must be given before the contents of a written instrument can be shown where there is a privity between the party to the suit and the one having custody of the writing. Held, that there was such privity between the plaintiff in a writ of possession and an officer sued for trespass committed in serving the same.</p> <p>3. The question was whether the house from which the plaintiff had been evicted upon a writ of possession against her husband, had been rented to her or her husband by the owner Hall. Held, that letters from the housekeeper of Hall about the renting of the same were material, and that the plaintiff must show their loss before she could prove their contents.</p> <p>4. It appeared that the husband of the plaintiff had, for the most part, paid the rent by remittances sent by letter, directly to Hall, and had received receipts therefor, all of which the plaintiff well knew. Held, that a letter from the husband, enclosing a money order for rent and asking that certain repairs be made, was admissible.</p>

General assumpsit. Plea, the general issue, payment and offset. Trial by jury at the December term, 1892, Lamoille county, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The plaintiff presented an account of nine items and the the defendant one of five, all of which accrued before December 24, 1890. The testimony showed that on that day the parties had made a jump settlement of their accounts, including these items.

Petition for the partition of real estate. Heard upon the report of commissioners at the September term, 1894, Rut-land county, Start, J., presiding. The court held as matter of law that the exceptions of the petitioners to the report presented no law question and ordered distribution of the fund. The petitioners except. The judgment and order of sale were conclusive. Ward v. Mitchell, 17 N. Y. 210 ; Brooks v. Davey, 109 N. Y. 495.

Assumpsit. Plea, the general issue. Trial by court at the June term, 1894, Caledonia county, Tyler, J., presiding. Upon the facts found the court gave judgment for the plaintiff. The defendant excepts. The warning need not specify the business, since the time of holding the meeting and the business to be done was fixed- by statute. Greenbanks v.- Boutwell, 43 Vt. 220; Chandlery.

<p>Assumpsit. Plea, the general issue and offset. Trial by jury at the December term, 1894, Caledonia county, Mun-son, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff claimed to recover upon certain promissory notes given by the defendant to E. W. Farrington, or bearer, and transferred by the said E. W. to the plaintiff. The defendant filed a specification under his plea in off-set of certain sums which he claimed to have paid to the said E. W. Farrington in his lifetime, but which had not been endorsed upon the notes, and the only question litigated was as to whether these payments had been made.</p> <p>Upon the trial the defendant conceded the execution of the notes and claimed the right to begin and close the argument to the jury. This the court denied, and the defendant excepted.</p> <p>It appeared that E. W. Farrington had deceased before the trial. The plaintiff was improved as a witness to certain conversations had with the defendant in the lifetime of the said E. W. in reference to these payments, which the defendant claimed he had made upon the notes. The defendant thereupon offered himself as a witness in reference to these same conversations. The plaintiff objected that he was incompetent for the reason that the other party to the cause of action on trial was dead, and the court so ruled, and excluded the evidence under the exception of the defendant.</p> <p>The plaintiff introduced a note from the defendant to the said E. W. Farrington, upon which were certain indorsements. The note was outlawed and was not in suit, but the plaintiff was allowed to show its execution and to put the note in evidence against the exception of the defendant upon the ground that the note and endorsements bore upon the ■claim of the defendant as to the payments which he pretended to have made. The plaintiff was improved as a witness in reference to certain conversations in the life time of E. W. Farrington in reference to this note and the payments made upon it. Thereupon, the defendant offered himself as a witness in reference to these conversations, but his testimony was excluded, upon the ground that the other party was dead, to which he excepted.</p> <p>The jury found that the defendant had paid upon the notes some three hundred dollars more than the plaintiff admitted, and for this reason the defendant moved the court to apportion the costs. This motion the court denied, and the defendant excepted.</p> <p>The defendant should have been admitted as a witness to prove the payments made by him to E. W. Farrington. The estate was in no way a party or interested in the suit. Mami,ffacturers' Bank v. Schofield, 39 Vt. 590; Lytle v. Bond's Estate, 40 Vt. 6x8; Cole v. Shurtleff, 41 Vt. 311 ; Hollister v. Young, 42 Vt. 403 ; Morse v. Low, 44 Vt. 561; Downs v. Belden, 46 Vt. 674 ; Taylor v. Finly, 48 Vt. 78 ; Hallv. Hamblett, 51 Vt. 589.</p> <p>The defendant was entitled to have his costs apportioned. Sumner v. Cummings, 23 Vt. 427 ; Hatch v. Hatch, 60 Vt. 160; Carltons. Taylor, 50 Vt. 220; R. L., s. 1451.</p> <p>The defendant was incompetent as a witness for the reason that the other party to the contract in issue was dead. Insurance Co. v. Well, 53 Vt. 14; R. L., s. 1002.</p> <p>But one issue was tried, and upon that issue the plaintiff prevailed; therefore, there is no ground for an apportion-' ment of costs. Ross v. White, 60 Vt. 558.</p>

Trespass to recover a penalty of ten dollars under No. 79, Acts of 1884, and damages. Heard at the September term, 1894, Franklin county, upon the report of a referee, Row-ell, J., presiding. Judgment in favor of the defendant, McCarty, without cost, and judgment pro forma against the defendant Young for a penalty of ten dollars and six cents damages and costs. The defendant Young excepts.

<p> For what liabilities town may bind itself. Interest in suit. </p> <p>1. The officers of a town cannot bind it for the expense of carrying on a suit in the event of which it has no direct interest..</p> <p>2. A town has no such interest in a suit for divorce between husband and wife where the wife has lived for the last nine years with a daughter in Massachusetts and is still so living, although as a result of the suit the wife may possibly become chargeable to the town as a pauper.</p>

Assumpsit. Plea, the general issue. Trial by court at the December term, 1894, Windsor county, Ross, C. Ji, presiding. Upon the facts found the court gave judgment for the plaintiff. The defendant excepts. Taylor was the plaintiffs agent, hence the letter written by him to defendant was admissible. Weeks v. Barron, .38 Vt. 420; Baldwin v. Doubleday, 59 Vt. 7 ; Commonwealth v. Keyes, 11 Gray 323 ; Connecticut v. Bradish, 14 Mass. 296.

Audita querela. ■ Trial by court at the December term, 1894, Caledonia county, Munson, J., presiding. Upon the facts found the court gave judgment for the defendant. The plaintiff excepts. The plaintiff lost his day in court through the fault of the defendant’s attorney and is entitled to the relief prayed for. Weeks v. Lazvrence, 1 Vt. 433 ; Folsom v. Connor, 49 Vt. 4; Tyler v. Lathrop, 5 Vt. 170. Fraud must be shown in the defendant.

<p> Negligence. Railroad company. Evidence. Overruling motion -pro forma. </p> <p>1. The action being for the alleged negligence of the defendant resulting in the death of the plaintiff’s intestate, it is not error to allow the physician who attended the intestate to testify that he has received no compensation for his services, from any source, nothing further appearing.</p> <p>2. It is within the discretion of the trial court to permit the plaintiff to bring out, upon the cross-examination of the defendant’s witness, matters which, in the then state of the case,, could be properly shown in rebuttal.</p> <p>3. Where a ruling is within the discretion' of the trial court, it will be presumed to have been made as a matter of discretion, unless the contrary affirmatively appears.</p> <p>4. If a question asked upon re-examination is not in explanation. or avoidance of anything brought out in cross-examination,, the trial court may in its discretion exclude it.</p> <p>5. The train bearing the intestate arrived from the east. Passengers from that train alighted upon a platform about six feet wide, and from thence passed .across another track of the defendant to the station platform. Just as the passengers, upon this train were alighting, another train of the defendant from the west drew in upon the track between the narrow platform and the station platform, and the intestate was in some unexplained way drawn under the wheels of' the latter train. There was an unusual crowd upon the.platforms that morning, and the trains did not arrive upon schedule time. Held, that evidence that other railroads at certain specified points employed a similar arrangement of tracks and discharged passengers in the same way, was properly excluded.</p> <p>6. One question being whether the intestate voluntarily incurred the danger from which she suffered, while under the reasonable apprehension of a real or apparent peril, evidence that just before her own accident another person in attempting to cross from the narrow platform to the station had narrowly escaped being run over by the same train which injured her, and that the episode had been attended with considerable noise and confusion, is admissible.</p> <p>Where a motion is addressed to the discretion of the county court, it is reversible error to overrule it pro forma, for the party making it is entitled to have the court exercise it's discretion. So held of a motion to set aside a verdict for that the damages were excessive.</p>

<p>'Indictment for nuisance in the maintaining of a slaughter house. Plea, not guilty. Trial by jury at the March term, 1894, Washington county, Tyler, j., presiding. Verdict, guilty, and judgment on verdict. The respondent excepts.</p> <p>The hypothetical question referred to in the opinion was as •follows:</p> <p>“Q. I will make a supposition then; if cattle were slaughtered at that barn about ten or fifteen feet back from the front of it, and the entrails, and the blood, and the horns, and the bones that were thrown away, were thrown into the basement under that barn floor, and a hog pen was maintained under that floor during the hot season of the year, and there was more or less putrid flesh there and decaying matter, what would be the effect of such a condition of affairs to the health of the neighborhood, and to people passing and re-passing upon that highway ?</p> <p>“A. I think it would be deleterious.”</p> <p>The respondent excepted to both the question and the answer.</p> <p>The common law remedy has been superseded by statutory enactment. R. L., ss. 3924, 3925 ; Acts of 1892, No. 82, p. '90 ; State v. Smith, 7 Conn. 428; State v. Hyde,'11 Conn. 541; State v. Smith, 54 Vt. 403.</p> <p>The hypothetical question embraced all the material facts in the case and was proper. Bishof v. Spinning, 38 Ind. 143; Rogers, Expert Tes., s. 25 and cases cited there; Guitig v. State, 66 Ind. 94;’ Goodwin v.' State, 96 Ind. 550; S>uinn v. Higgins, 53 Am. Rep. 305; Tardley v. Cuthberton, 56 Am. Rep. 218; Gilman v. Strafford, 50 Vt. 723 ; Hathaway v. Life Ins. Co., 48 Vt. 335 ; Johnson v. Castle, 63 Vt. 452.</p> <p>It is not necessary to the creation of a nuisance that the public health should be affected. Wood on Nuisances, 766, 784, 785 and cases cited there; Brady v. Weeks, 3 Barb. 157,</p>

Petition for the appointment of commissioners to asse.ss the damages of the petitioner occasioned by the taking by the petitionee of the waters of East Creek. Heard upon the report of commissioners at the September term, 1894, Rutland county, Start, J., presiding. Judgment for the petitioner for the amount named in the petition. The petitionee excepts.

<p>Assumpsit upon a policy of fire insurance. Plea; the general issue. Trial by jury at the December term, 1894, Windsor county, Ross, C. J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.</p> <p>The exceptions to the charge cannot be sustained. They were to the entire charge, upon one branch of the case, and' did not specify any defect. Such an exception is not fair to the court. Goodwin v. Perkins, 39 Yt. 605, 606; Rowell' v. Fuller, 59 Yt. 696.</p>

<p>Assumpsit. Plea, the general issue. Trial by court at the February term, 1895, Orleans county, Munson, J., presiding. Upon the facts found the court gave judgment for the defendant. The plaintiff excepts.</p> <p>The plaintiff claimed to recover for the use and occupation of a certain room. The house in which this room was belonged to the defendant and • had been leased by her to the plaintiff. Previously to the possession of the plaintiff under the lease the defendant and her husband had kept house there. When they moved out the husband of the defendant said to the plaintiff that heyvould like to store a portion of his goods there until the house in which he was to live should be completed, and the plaintiff replied that they might be left there as well as not. The husband did accordingly store a part of his household goods in one of the rooms. Subsequently the husband removed a portion of these goods and the rest were put into a closet. After this the defendant came to the house, looked at the goods and locked up the closet. Thereupon the plaintiff told her that he must have the room. She replied that he could not have it, and he then notified her that so long as she retained possession she must pay rent at the rate of two and a half dollars per month. At a later date he notified her that she must pay five dollars per month.</p> <p>The defendant did not own and had no interest in the goods. She never promised to pay rent, and claimed the right to occupy the l’oom in virtue of the arrangement made with her husband.</p> <p>By continuing to hold the premises after notice that she must pay rent the defendant became liable. Thompson v. Sanborn, 52 Mich. 141; Chamberlin v. Donahue, 44 Yt. 57 ; Griffith v.Knisely, 75 111. 361 ; Taylor’s Land. & Ten., s. 19 (8th Ed.).</p> <p>The law will imply a promise from the cii’cumstances. Ives v. Hulett, 12 Vt. 314; Paddock v. Kittredge, 31 Vt. 378.</p> <p>In order to support an action of assumpsit there must be ■some promise by the defendant to the plaintiff, express or implied. Moore v. Harvey, 50 Yt. 297 ; Stacey v. Vermont Cent. Rd. Co., 32 Vt. 551 ; Watson v. Brainerd et al., 33 Vt. 88 ; Chamberlin v. Donahue, 44 Vt. 59 ; Taylor, Land. & Ten., ss. 636, 637 ; Hoffar v. Dement, 5 Gill 132; 46 Am. Dec. 628 ; Bancroft v. Ward-well, 13 John. 489 ; ■7 Am. Dec. 396.</p> <p>By locking the door the defendant may have committed a trespass, but she did not promise to pay. Turnpike Co. v. Smith, 12 Vt. 212; Peach v. Mills, 14 Vt. 371; Scott v. Lance, 21 Vt. 507; Stearns v. Dillingham, 22 Vt. 625 ; Winchell v. Noyes, 23 Vt. 303 ; Drury v. Douglass, 35 Vt. 474; Kidney v. Persons, 41 Vt. 386; Saville, Somes & Co. v. Welch, 58 Vt. 683.</p>

<p>Slander. Plea, the general issue. Trial by jury at the June term, 1892, Bennington county, Munson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts.</p> <p>The defendant was not privileged until the hearing actually began. Trolman v. Dunn, 4 Camp. 211; Lyman v. Gowing, 6 L. R. Ir. 259.</p> <p>There is no privilege as to words not pertinent ■ to the issue. Brown v. Hathaway, 95 Mass. 239 ; Hoar v. Wood, 44 Mass. 193 ; Gilbert v. Beofle, 1 Denio 41.</p> <p>The occasion was privileged, and the privilege extended to whatever was said on that occasion. Buckley v. Wood, Cro. Eliz. 240; 16 Bac. Ab. 226; Vanderzee v. McGregor, 12 Wend. 545 ; 27 Am. Dec. 156; Kingv. Root, 21 Am. Dec. 102; Bradley v. Heath, 22 Am. Dec. 418; McMellán v. Birch, 2 Am. Dec. 426; Calkins v. Sumner, 80 Am. Dec. 738; Shurtleff v. Stevens, 51 Vt. 501 ; Town., Slander, s. 221; 2 Greenl., Ev., s. 422.</p>

<p> Construction of deed. Description. Lateral support of adjoining lands. Injunction. </p> <p>1. The most important rule in the construction of deeds is that the intention of the grantor, if not unlawful, shall govern.</p> <p>2. A, being the owner of a tract of land, conveyed to B a parcel forty-seven feet wide from the westerly side. The point of beginning was the northwest corner and the deed located this as forty-five feet from the north-east corner-of a certain store. Subsequently A conveyed to C a second parcel from the same tract easterly of and adjoining the first parcel. The point of beginning in this deed was the northwest corner of the parcel which was described as ninety-one feet from the same store corner, being the northeast corner of the first parcel. The west line of the last parcel yvas described as running along the east line of the first parcel. Held, that it was the manifest intention of the grantor that the west line of the second parcel should be coincident with the east line of the first parcel and that the ninety-one feet must be rejected as surplusage.</p> <p>3. A land owner is entitled to the lateral support of his soil in its natural condition, but not as to any artificial structure placed upon it.</p> <p>4. Therefore an injunction will not be granted to restrain a landowner from erecting the foundations of his building upon such a level that the adjoining owner cannot rebuild his foundations without removing the lateral support of the first.</p>

Petition for an appeal from the judgment of a justice upon the ground that the same had been denied by reason of fraud, accident or mistake. Heard at the December term, 1894, Windsor county, Ross, C. J., presiding, upon general demurrer to the petition. Demurrer sustained and petition, dismissed with costs. The petitioner excepts.

Assumpsit to recover expenses incurred in the support of a pauper. Heard upon an agreed statement of facts at the December term, 1894, Caledonia county, Munson, J., pre.siding. Judgment for the plaintiff. The defendant excepts. The plaintiff sued for the support of one Esther Cushman from March 16, 1893, to the date of the writ, October 4, 1894.

<p> Power to sell vitiates chattel mortgage, though given after mortgage. Subrogation. </p> <p>1. A provision in a chattel mortgage giving the mortgagor the absolute right to dispose of the entire property in one transaction for his own benefit vitiates the mortgage.</p> <p>2. It is the same whether the permission is contained in the mortgage itself or is by independent agreement, and whether it is given at the time the mortgage is executed or subsequently.</p> <p>3. In such case the fact that the mortgagee has paid off a prior mortgage on the property does not help his title as against an attachment made prior to such payment.</p>

Indictment for murder against the respondent and James Bow. Plea, not guilty. The respondents were tried jointly .at the September term, Orleans county, 1894, Tyler, J., presiding. Bow was acquitted and the respondent found guilty of manslaughter. The respondent excepts. The state offered in evidence the declarations of Bow, made after the alleged killing and not in the presence of the respondent. The respondent objected for that they were not admissible as against him.

<p>Appeal from the award of the trustees of the village of Hardwick of damages for the taking of the water of the petitioners. Heard upon the report of commissioners at the June term, 1894, Caledonia county, Munson, J., presiding. Judgment for the smallest sum named in the petition. The petitioners except.</p> <p>The owner is entitled to damages in view of all the uses to which the water can be put, whether he is actually putting it to that use or not. Maynard v. Northampton, 157 Mass. 218; Cit,rrie v. Rd. Co., 52 N. J. L. 381 ; Stafford v. Providence, 10 R. I. 567.</p> <p>The damages to the whole farm must be Considered : not merely those to the parts adjacent. Currie v. Railroad Co., 19 Am. St. Rep. 452 ; 6 Am. & Eng. Ency. Law 574 5 San Antonia Rd. v. McGregor, (Texas) 22 S. W. Rep.. 269; Seattle Railroad v. Murphine, 4 Wash. St. R. 448;. Chicago Railroad v. Davidson, 49 Kan. 589 ; Maynard v.. Northampton, 157 Mass. 218; Krerner v. Railroad,. (Minn.) 52 N. W. 977; Boon Co. v. Petterson, 98 U. S. 403 ; Railroad Co. v. Murphy, 19 Minn. 500 ; Barre Water Co. v. Carnes, 65 Vt. 626; Alta Land & Water Co. v. Hancock, 85 Cal. 219; St. Ant. W. P. Co. v. Minneapolis, 41 Minn. 270.</p> <p>The petitioners should have interest from the date of the taking. Acts of 1892, No. 121, s. 6; Stafford v. Providence, 14 Am. Rep, 710; Fox v. Rd. Co., 31 Cal. 556 j Railroad Co. v. McComb, 60 Me. 290; Fink v. Newark,. 40 N. J. L. 11; Railroad Co. v. Waldron, 11 Minn. 515.</p> <p>The owner of this farm could divert only so much of the water as was necessary for his own domestic purposes, and can only recover damages on that basis. Howe Scale Co. v. Terry et al., 47 Vt. 122; Chatfield v. Wilson, 31 Vt. 358; Davis v. Fullers, 12 Vt. 178; Howard v. Rutland, 64 Vt. 41; Leonard v. Rutland, 66 Vt. 105 ; Gould on Waters, ss. 204, 205, 208, 245 ; Cooper v. Williams, 22 Am. Dec. 745 ; Delling v. Murray, 63 Am. Dec. 385 ,* Eddy v. Simpson, 58 Am. Dec. 408; Kidd v. Laird, 76' Am. Dec. 472 ; Rhodes v. Whitehead, 84 Am. Dec. 631 \ Johns v. Stevens, 3 Vt. 308; Norton v. Valentine, 14 Vt. 239; Ford v. Whittemore, 27 Vt. 265 ; Newhall v. Inerson, 54 Am. Dec. 790.</p>

<p>Suit for the collection of taxes. Heard upon the report of a referee at the December term, 1894, Caledonia county, Munson, J., presiding. Judgment for the plaintiff. The defendant excepts.</p> <p>The statute provides a method in case of the decease of a tax collector, and that method is exclusive. R. L., ss. 428-431; Johnson v. Howard, 41 Vt. 122; Camden v. Allen, 26 N. J. L. 398; Crapo v. Stetson, 8 Met. 394.</p> <p>The administrator is a proper party, The suit was that of the collector, and survived under the statute applicable to actions in assumpsit. R. L., s. 407 ; Wheelers. Wilson, 57 Vt. 157; R. L., 2133, 2135, 2143.</p> <p>The requirement that the listers shall file a copy of the quadrennial appraisal is directory merely, and a failure to comply with it does not vitiate the grand list. Willard v. Pike, 59 Vt. 202.</p>

<p>Case for the killing of plaintiff’s horse. Plea, the general issue. Trial by jury at the December term, 1895, Bennington county, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.</p> <p>If the horse escaped through the negligence of the one in charge, it was wrongfully upon the highway and no recovery can be had. Maynard v. Ed. Co., 115 Mass. 458; McDonnell v. Ed. Co., 115 Mass., 564; Towne v. Ed. Co., 124 Mass. 101; yackson v. Rd. Co., 25 Vt. 150; Morse v. Rd. Co., 27 Vt. 49; Bcmis v. Rd. Co., 42 Vt. 375-</p> <p>The offer that similar cattle guards had proved sufficient was too narrow. Waite v. Rd. Co., 61 Vt. 268 ; Trow v. Rd. Co., 24 Vt. 487; Congdon v. Howe Scale Co., 66 Vt. 255.</p> <p>The plaintiff was not guilty of contributory neglect. Congdon v. Rd Co., 56 Vt. 390; Cressey v. Rd. Co., 59. N. H. 564; 47 Am. Rep. 227.</p>

<p> Possession obtained by threats. Evidence. Presumption against error. </p> <p>1. The defendant claimed title to the goods in suit under bill of sale from the plaintiff. The plaintiff denied the execution of the bill of sale, and insisted that the defendant had obtained possession of the goods by frightening him out of the state. Held,, that the plaintiff was properly allowed to testify that just prior to’ the date of the bill of sale the defendant told him that unless he left the state he would_.be arrested.</p> <p>2. Error will not be presumed.</p>

These two cases were heard together by court at the June term, 1894, Orange county, Ross, C. J., presiding. The first was ejectment, in which the plea was not guilty; and the second a petition for partition. Upon the facts found, the court gave judgment in the ejectment suit for the defendant, Maria L. Hurlburt, to recover her costs, to which the plaintiff excepted. In the other suit, the court ordered partition, to which the defendant, Maria L. Hurlburt, excepted.

Petition of foreclosure. Heard upon the pleadings and a master’s report at the September term, 1894, Franklin county. Rowell, chancellor, held that the orator account for the rents and profits and decreed accordingly. The orator appeals. In 1884 George Blaisdell and others mortgaged the premises in question to one Post. This mortgage was foreclosed at the April term, Franklin county, 1889, and the decree then entered became absolute.

<p>Trover. Plea, the general issue. Heard upon the report of a referee at the September term, 1893, Windham county, Taft, J., presiding. Judgment for the plaintiff for the larger sum named in the report, and costs. The defendant excepts.</p> <p>The payment of July 19, 1892, referred to in the opinion, was eight hundred dollars. 'It was endorsed upon the note, and the referee did not find that any application was-made of it by either party. He did report that a computation was then made by the parties, showing due on the note-as of that date, after deducting this payment, four thousand two hundred seventeen dollars and ten cents, but that the amount actually due was four thousand two hundred' seventeen dollars and sixty-five cents.</p> <p>The sale of the mortgaged property was under order of the court of insolvency, based upon the petition of the assignee, and was a general order to sell all the real and personal estate of the insolvent.</p> <p>Interest is created by statute, and can only be computed: in the manner authorized. III. Ct. R. Co. v. Cobb, 72 111. 148; Pekin v. Reynold, 31 111. 529; Chicago v. Allcock, 86 111. 385 ; R. L., s. 1998.</p> <p>Aunual interest is only payable at the end of the year.. • Walton, Admr., v. Hall’s Est., 66 Vt. 464; Catlin v. Lyman et al., 16 Vt. 44.</p>

Information in two counts. Plea, not guilty. Trial by jury at the September term, Washington county, Munson, J.,- presiding. Verdict, guilty. Judgment on verdict. The respondents except. The material part of the information was as follows: First count: “That Josiah B. Dyer and Thomas Quinlan of Barre, in the county of Washington, and Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking and Alex.

Information for keeping a dog without license. Heard upon general demurrer at the June term, 1894, Caledonia county, Tyler, J., presiding. Demurrer overruled. The respondent excepts.