Volume 68 — Vermont Reports

Action on the case for deceit. Plea, the statute of'limitations. No replication was filed. Trial by jury at the September term, Orleans county, 1894, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The parties were husband and wife. There had been an agreement to marry, followed by uninterrupted cohabitation for thirty years. This would constitute a valid marriage at common law, and does in Vermont.

Assessment of damages upon injunction bond. Heard upon the report of a master at the March term, 1893, Washington county. Start, chancellor, decreed for the defendants. Both parties appeal. The defendants claimed to recover in respect to nine items. No question was made in supreme court as to the disposition of the first eight.

Appeal to the county court from an order of the court of insolvency for the district of Franklin, adjudging the Montgomery Spool and Bobbin Co. an insolvent debtor. The county court dismissed the petition and the petitioner excepted. In this court the petitionee moved to dismiss those exceptions and the case was heard on such motion. No. 79, Acts 1888, gives the right of exception. The judgment of the county court was conclusive.

Heard at the September term, 1894, Rutland county, Start, J., presiding, upon the report of a referee. Judgment for the plaintiff. Except tions by the defendant. The facts appear in the headnote and opinion.

<p>Marriage hy petitionee in divorce proceedings void.</p> <p>A marriage by the petitionee, against whom a divorce has been granted, in violation of R. L., s. 2391, is void.</p>

General and special assumpsit. Plea, the general issue. Trial by jury at the May term, 1895, Windsor county. Verdict and judgment for the plaintiff. The defendant excepts.

<p>Assumpsit. Plea, the general issue. Trial by jury at the June term, 1894, Caledonia county, Tyler, J., presiding. The court directed a verdict for the plaintiff. The defendant excepts.</p> <p>The court should have directed a verdict for the defendant. The title did not pass to him until he paid for the stock and received it. Riley v. Wheeler, 42 Vt. 528; Miller v. Cushman, 38 Vt. 593 ; Hale v. Huntley, 21 Vt. 147 ; Cole v. Kerr, 20 Vt. 21.</p> <p>The general property in the animals passed to the defendant when they were struck off to him, although the plaintiff still had a lien on them for the purchase price and a right to retain them until that was paid. Winslow v. Leonard, 24 Pa. St. 14; Wade v. Moffat, 22 111. no; Griswold, Pearl & Co. v. Scott, 66 Vt. 550; Graves v. Ashlin, 3 Camp. 426.</p>

False imprisonment. The defendant filed two pleas in justification. Heard upon the. plaintiff’s general demurrer to said pleas at the March term, 1895, Washington county, Start, J., presiding. Demurrer overruled and pleas adjudged sufficient. The plaintiff excepts. The officer was commanded by his warrant to bring the plaintiff before the county court. Not finding it in session he had no authority to detain the plaintiff.

<p> Massachusetts marriage may he decreed null in this state. </p> <p>The petitioner being domiciled in this state and having been so domiciled at the time of the pretended marriage, the court, under R. L., s. 2347, has jurisdiction to decree the nullity o£ a marriage solemnized in the state of Massachusetts, upon the ground that the petitioner then had a husband living.</p>

<p>Trover. Trial by court at the March term, 1895, Chittenden county,' Ross, C. J., presiding. Upon the facts found the court gave judgment for the plaintiff. The defendant excepts.</p> <p>The plaintiff sued for certain shafting and machinery. It appeared that in March, 1893, one Smith had bought this property of one Terrill and attached the same in the usual manner to his, Smith’s, saw-mill. In August, 1893, Smith gave a chattel mortgage of this property to one Hunt, which was good in other respects, but never recorded. January 3, 1894, Hunt placed this mortgage in the hands of the defendant, an officer, with instructions to foreclose it, and the ■defendant proceeded to post and sell the property. Hunt ibid the same off at the sale, but did not move or in any way Interfere with the possession of it.</p> <p>December 27, 1893, Terrill brought suit for the purchase price of this property and attached it by copy in the town clerk’s office. The plaintiff was the officer making the attachment. Terrill obtained judgment February 3, 1894, and an execution was placed in the hands of the plaintiff for collection who demanded the property of Smith. - No «demand was made on the defendant.</p> <p>No demand on the defendant was necessary. The sale of the property was a conversion. Morse v. Morse, 44 Vt. .86 ; Fish v. Clifford, 54 Vt. 345 ; 1 Chit. Plead. 176, 16th ed. ; Grant v. King et al., 14 Vt. 370; Cramp ton v. Valido Marble Co., 60 Vt. 302; Knapp v. Winchester, 11 Vt. 356.</p>

Trespass quare clausum. Heard upon the report of a referee at the March term, 1895, Chittenden county, Ross, C. J., presiding. Judgment for the defendant. The plaintiffs except. The parties have put a practical construction on this lease as to the right of the plaintiffs to usé this water which should be respected by the court. White v. Hammond, 67 Vt. 1; Whitings!. Dow, 43 Vt. 262; Hills!. Cox, 54 Vt. 627; Boutwell v. Harriman, 58 Vt. 5x6; Judd v. Ballard, 66-Vt. 638.

<p> Presumption as to law of other country. Bringing into this state a fresh larceny. </p> <p>1. It will be presumed that all civilized countries recognize and enforce certain fundamental principles, and to this extent that their laws are like our own. So held as to larceny.</p> <p>2. The rule that one who steals property in a foreign country and brings it into this state, may be punished here as for a fresh larceny, discussed and affirmed.</p> <p>3. In this respect there is no difference between a sister state and a foreign country.</p>

Petition against both the town and village of St. Albans for the laying out of a highway. Heard upon the report of commissioners at the September term, Franklin county, 1895, Munson, J., presiding. Held: as matter of law, that it had no power to compel the village to lay out, work and open said highway, and made an order upon the town to that effect. The town excepts.

Case for the default of the defendant as an officer in not taking a sufficient replevin bond. Plea, the general issue. Trial by court at the March term, 1895, Windham county, Rowell, J., presiding. Upon the facts found the court gave judgment for the defendant. The plaintiff excepts. The defendant was negligent in not taking a sufficient bond. He cannot claim subrogation for that he has not come with clean hands himself.

Trover. The defendant plead the general issue and three special pleas in bar. Heard upon general demurrer to the third plea at the September term, 1895, Orleans county, Start, J., presiding. Demurrer sustained. The defendant excepts. The mortgagee cannot maintain trover against the mortgagor. The statute gives» him a special remedy which is exclusive.

<p>Assumpsit. Pleas, the general issue, payment and offset. Trial by jury at the April term, 1895, Franklin county, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The case appears in the opinion.</p> <p>Plaintiff waived the right to insist upon payment for drawing according to the terms of contract, and cannot now allege this as an excuse for not performing upon his own part. Coke Lit. 211b; Taylor v. Gallu-p, 8 Vt. 340.</p> <p>The contract was entire. The plaintiff had not fulfilled upon his own part and cannot recover. Keenan v. Brown, 21 Vt. 86; Kettle v. Harvey, 21 Vt. 301 ; Planche v. Col-burn, 8 Bing. 14; Withers v. Reynolds, 2 B. and A. 882 ; Hammond v. Buckmastcr, 22 Vt. 375-380 ; Shaw v. Lewis-ton T. Co. 3 Pa. 415.</p>

Assumpsit. Pleas, the general issue, payment, statute of limitations and offset. Tidal by jury at the June term, 1894, Bennington county, Taft, J., presiding.' Verdict and judgment for the plaintiff. The defendant excepts. Wm. D. Clemons, the father of the plaintiff and defendant, died in 1875, leaving a widow and these two children. His estate was settled in the probate court, and in 1879 property was passed over to the widow and children.

<p>Assumpsit. Plea, the general issue with notice of special matter. Trial by jury at the June term, 1895. At the close of the evidence the court directed a verdict for the plaintiff. The defendant excepts.</p> <p>The plaintiff by stamping the note “Paid” and putting it into the hands of Walter notified the defendant that it had been discharged and the defendant acted upon that information to his prejudice. Hence, the plaintiff is estopped from maintaining this suit. Car‡enter v. King, 9 Met. 511; Balter v. Briggs, 8 Pick. 1 ; Harris v. Brooks, 21 Pick. 195 ; Bank v. Schofield, 39 Vt. 590; Bank v. Maskell, 51 N. H. 116; Banker. Rudolf, 5 Neb. 527; Yale v. Watson, 54 Mann. 173.</p> <p>The question is not whether the plaintiff intended to deceive the defendant, but whether its conduct was reasonably calculated to that end. West v. Gztderian, 3 Tex. Civ. App. 406; Greene v. Smith, 57 Vt. '268 ; Louks v. Kenniston, 50 Vt. 116; Bank v. Hazard, 30 N. Y. 226; Hardy Bros. v. Bank, 51 Md. 562; 7 Am. & Eng. Enc. of Law, p. 16; Her. Est., s. 953 ; Big. Est., 480.</p> <p>A payment of a note in counterfeit money or forged paper is no payment. Gilman v. Peck, 11 Vt. 516; Wemet v. Missiquoi Lime .Co., 46 Vt. 458; Farr v. Stevens, 26 Vt. 303; Gillman v. Peck, xi Vt. 516; Bank v. Gore & Grafton, 15 Mass. 75.</p> <p>There was no negligence upon the part of the plaintiff in not detecting the forgery. Frank v. Lanier, 91 N. Y. 112.</p> <p>There was no estoppel. The word “Paid” was stamped upon the note through the fraudulent act of Walter. A misrepresentation made through mistake or induced by fraud will not create an estoppel. It has often been so held in cases similar to the one at bar. Boynton v. Braley, 54 Vt. 92; Holden v. Ins. Co., 46 N. Y. 1; Goodrich v. Tracy, 43 Vt. 314; Emerinev. O’Brien, 36 Ohio 491 ; Lovmger v. First Nat. Bank of Madison, 81 Ind. 354’ Ritter et al. v. Singmaster et al., 73 Penn. st. 400; Hubbard v. Hart et al. 71 la. 668; Bell v. Buckley, 11 Exc. 630; Bank of Newbury v. Richards, 35 Vt. 284;' Hayward v. Billings, 48 Vt. 355 ; Blodgett v. Bickford, 30 Vt. 731*</p>

Assumpsit. Trial by court at the September term, 1895, Washington county, Thompson, J., presiding. The court held that the suit should have been brought against the school district and gave judgment for the defendant. The plaintiff excepts. The action was for money in the hands of the defendant as treasurer of school district No. 11, in Barre, upon the abolishing of that district by Act No. 20, 1892.

<p>Complaint for furnishing intoxicating liquor, brought before a justice of the peace. Before the justice the respondent plead guilty and appealed from the judgment to the county court. In that court he moved to withdraw his said plea. Heard upon such motion at the March term, 1895, Rutland county, Thompson, J., presiding. The court denied the motion and gave judgment and sentence on the plea. The respondent excepts.</p> <p>The appeal vacated all the proceedings before the justice and the cause stood de novo in the county court. R. L., ss. 1673, 1676; Chitty Crim. Law 418.</p> <p>The respondent’s request for leave to replead should have been granted as a matter of course. Wickwire v. State, 19 Conn. 477; People v. Richmond, 57 Mich. 399; State v.- Stephen, 71 Mo. 535.</p> <p>Whether a respondent shall have leave to withdraw his-plea of guilty is discretionary with the court. Clark v. State, 31 Atl. Rep. 979.</p>

In the county court the respondent moved that the complaint •be dismssed for that those sections of the statute upon which it was founded were repealed by Act No. 68, 1894. Heard upon such motion at the March term, 1895, Rutland •county, Thompson, J., presiding. Motion denied. The respondent excepts. Exception passed to supreme court before final judgment.

Petition for the annullment of a marriage for that the consent of the petitioner was obtained by fraud. Heard at the September term, 1894, Washington county, Munson J., presiding. The court found the fact of the fraud and annulled the marriage. The petitionee excepted for that there was no evidence to support the finding of fraud. If there was any evidence of fraud, the decree of the county court cannot be disturbed.

Assumpsit. Plea, the general issue. Trial by jury at the December term, 1894, Caledonia county, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The suit was brought to recover money in the hands oi the defendant which had beep received by him for certain property taken upon execution and sold by him, as an officer, in a suit in favor of Anthony LaFoe against George H. Wheeler.

Assumpsit. Plea, the general issue. Trial by jury at the June term, 1895, Orange county, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts- It appeared that in May, 1894, the defendant took the mowing and tillage land upon the plaintiff’s farm to carry-on upon shares and that he had occupied the same for the season under that arrangement.

<p> Criminal law. Several larcenies on the same expedition. Agreement with prosecuting attorney. </p> <p>1. The theft of several articles at one and the same time and place constitutes but one indivisible crime, although the articles belong to different owners, and a conviction or acquittal for the larceny of one of the articles would bar a prosecution for th.e theft of the others.</p> <p>.2. But the theft of several things at different times and places, upon the same expedition, creates distinct larcenies.</p> <p>3. If a respondent, who has committed several larcenies in the course of the same enterprise, pleads guilty to one upon an understanding with the state’s attorney that there shall be no further prosecution, the trial court may enforce the agreement.</p>

Assumpsit. Plea, the general issue. Trial by jury at •the March term, 11895, Windham county, Rowell, J., presiding. The court directed a verdict for the plaintiff. The -defendant excepts. The case appears in the headnotes and opinion. The parol testimony was properly admitted. Fields Admr., v. Mann, 42 Vt. 65 ; Winn v. Chamberlin, 32 Vt. 319; Bradley v. Pike, 34 Vt. 215. The parol testimony varied the written contract and was inadmissible.

Assumpsit. Plea, the general issue. Trial by court at the March term, 1895, Washington county, Start, J., presiding. Judgment for the plaintiffs. The defendants except. The contract was within the statute of frauds.

Complaint for intoxication. Plea, not guilty. Trial by jury at.the September term, 1895, Taft, J., presiding. Verdict and judgment of guilty. The respondent excepts. What Cushman saw was a privileged communication. State v. Squires, 1 Tyl. 147; Durkee v. Leeland, 4 Vt. '612. The argument to which the respondent excepted was proper. State v. Ward, 6a Vt. 191; Seward v. Garlin, 33 Vt. 583 ; People v. Me Whorten, 4 Barb. 438 ; People v. Dyle, 21 N. Y. 578.

Trespass quare clausum. Plea, the general issue and notice. Trial by court at the September term, 1895, Thompson, J., presiding. Judgment for the plaintiff. The defendants except. A way of necessity was reserved by implication. Clark v. Cogge, Cro. Jac. 170; Pomfret v. Recroft, 1 Wm.

Cabot. Heard upon an agreed statement of facts at the June term, 1895, Orange county, Rowell, J., presiding. Judgment that the instrument be not admitted to probate. Proponents except. The husband was a competent witness when offered to prove the will. Smith v. Potter, 27 Vt. 304; Carfenterv. Moore, 43 Vt. 394 ; Stowe v. Bishof, 58 Vt. 498 ; Pihe v. Haynes, 14 N. PI. 22; 47 N. H. 100; In re Emma C. BuchmaB s will, 64 Vt. 313.

Assumpsit. Plea, the general issue. Trial by jury at the March term, 1895, Rutland county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The suit was upon a policy of accident insurance. The alleged accident resulted in the death of the insured, and this suit was brought by his wife.

Bill in équity. Heard upon the report of a master at the May term, 1890, Windsor county. Thompson, Chancellor, decreed for the orator. The defendants appeal. The conveyance was void. Cram, v. Stickles, 15 Vt. 253 ; yones v. Sjoear, 21 Vt. 426; Church v. Cha join, 35 Vt. 223. Even as to the portion of the debt accruing after it was made. Bracketts. Waite, 4 Vt. 389; McLane v. yohnson, 43 Vt. 48; Stearns v. Edson, 63 Vt. 259.

Assumpsit for the support of certain paupers. Plea, the general issue. Heard upon the report of a referee at the September term, 1895, Rutland county, Rdss, C. J., presiding. Judgment for the plaintiff. The defendant excepts. The question was whether the paupers had a sufficient residence to charge the defendant town. The town of Proctor, the defendant, was created by No. 137, Acts of 1886, out of territory formerly embraced within the town of Rutland.

General assumpsit. Plea, the general issue with notice. Trial by jury at the September term, 1894, Start, J., presiding. The court submitted no general verdict to the jury, but did submit certain special verdicts. Judgment for the defendant upon these verdicts. The plaintiff excepts. The facts sufficiently appear in the head notes and opinion.

Bill in equity. Heard upon the report of a master at the September term, 1895, Chittenden county. Taft, chancellor, decreed for the orators. The defendant appeals. The orator’s election to prosecute his suit before the commissioners is a bar to his right to maintain this suit for a specific performance. Hartland v. Hackett> 57 Vt. 98.

Petition for the laying of a highway in two towns situated in Lamoille and Orleans counties. Heard upon a motion to dismiss by both defendants at the January term, 1896. The citation is properly directed and signed by the proper clerk. In re Durant, 60 Vt. 176.

A town cannot be held liable as trustee for compensation due one of its listers for services, if the same was voted after the service of the writ upon it, for nothing would be due absolutely at the time of service. Assumpsit.. Heard upon the report of a commissioner at the September term, 1895, Franklin county, Munson, J., presiding. Judgment that the trustee is chargable. The. trustee excepts.

Case. Plea, the general issue. Trial by jury at the September term, 1895, Chittenden county, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. ■ .

<p> Motion in arrest. What qtiestion can be raised by. </p> <p>1. A motion in arrest only reaches defects in the pleadings and verdict.</p> <p>2. Whether replevin 'will lie against an officer for property taken in execution cannot be raised by motion in arrest.</p>

Indictment for breach of the peace. Plea, former conviction. Heard at the September term, 1895, Washington county, upon the demurrer of the state to this plea. Demurrer sustained. Thereupon the respondent being ordered to plead over without prejudice, a trial by jury was had resulting in a verdict of guilty. Judgment and sentence on verdict. The respondent excepted to the action of the court in sustaining the demurrer.

Indictment for larceny. Plea, not guilty. Trial by jury at the September term, 1895, Franklin county, Munson, J., presiding. Verdict, guilty. The respondents except. The killing and carrying away of the meat of an animal is not a larceny of an animal. Rex v. Edwards & Walker, 2 R. & R. C. &. C. 497 ; Rex v. Halloway, 1 C. & P. 127, 128; Bish. Cr. Proc., ss. 708,710; Rex v. Roe, 11 Cox. C. C. 554; Rex v. Gallears, 1 Den. C. C. 501; Rap.

Debt on judgment. Plea, the general issue with notice. Trial by court at the September term, 1895, Washington county, Thompson, J., presiding. Judgment for the plaintiff. The defendant excepts.

Debt on bond. Heard upon an agreed statement of facts at the May term, 1895, Windsor county, Taft, J., presiding. Judgment for the defendant. The plaintiff excepts. When Howard gave his individual note for the partnership debts the estate of the deceased partner was relieved from all liability to partnership creditors. Sprague v. Ainsworth, 40 Vt. 47.

Heard at the May term, 1895, Windsor county, upon the report of a referee and exceptions by the administrator thereto, Taft, J., presiding. Exceptions overruled and judgment for the claimant. The administrator excepts. The book was improperly admitted. Bates v. Sabin, 64 Vt. 511; Barnes v. Dow, 59 Vt. 530, 537; Godding v. Orcutt, 44 Vt. 54; Lafiham v. Kelly, 35 Vt. 195 ; Williams v. Wager, 64 Vt. 336; Davis & Whittaker v. Field, 56 Vt. 426 ; Barber v. Bennett, 62 Vt. 58.

Action upon s. 4049, R. L. Heard upon the report of a referee and exceptions thereto at the September term, 1893, Franklin county, Taft, J., presiding. Judgment pro forma, overruling the exceptions, for the plaintiff. The defendants except. The action was brought by the plaintiff, as town treasurer, to recover damages done by the worrying of sheep by the dogs of the defendants.

Action on the case for obstructing the plaintiff’s right of way. Plea, the general issue with notice. Trial by jury at the September term, 1895, Washington county, Thompson, J., presiding. Verdict and judgment for the plaintiff in the sum of thirty-five dollars and costs. The plaintiff excepts. The seventy dollars were recoverable as damages, x Sedg.

Bill in equity. Heard upon pleadings and a master’s report at the May term, 1895, Windsor county. Taft, Chancellor, decreed fro forma for the oratrix. The defendant appeals. Neither the note nor the real estate were the separate property of the wife. Pom. Eq. Jur., ss. 860, 846; Tabor v. Chilley, 53 Vt. 487. If the defendant had any interest in the real estate, he should have had it adjusted by the court when the sale was decreed. Big. Est. and Res. Adj. 480; Pom. Eq.

Trespass for cutting and carrying away the plaintiff’s trees. Pleas, the general issue, accord and satisfaction and tender •of amends. Trial by court at the March term, 1895, Chittenden county, Ross, C. J., presiding. Judgment for the •defendants. The plaintiff excepts. The plaintiff and defendants were the owners of adjoining wood lots and the defendants had cut over the line onto ■the plaintiff.

Action on the case. Plea, the general issue. Trial by jury at the March term, 1895, Washington county, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The defendant had the legal right to compel Libersont to leave the premises, and no action arises from the exercise of a legal right with malice. Hayward v. Tillson, 75 Me. 225.

Trial by court at the June term, 1895, Caledonia county, Start, J., presiding.. Judgment for the petitioner. The petitionee excepts. The administrator of Brainard Flint’s estate was not a proper party. Davis v. Mayor of New York, 67 Am. Dec., 186; Sargent v. Kimball, 37 Vt. 323 ; Potts v. Smith, 24 Am. Dec., 359; Stubblefield v. McRaven, 43 Am. Dec., 502 ; Tock v. Tock, 30 N. Y. S. 1003 ; Heirs of Smith v. Rix, 9 Vt. 240; Rix v. Heirs of Smith, 8 Vt. 365 ; Heirs of Adarnsv.

Petition for relief from liability to assessment in respect to a highway and bridge. Trial by court at the September term, 1895, Chittenden county, Tart, J., presiding. Judgment that the assessment be vacated. The defendants except. S. 8, No. 18, Acts 1894, provides that the act shall not apply to pending causes. This suit was then pending, and the subsequent repeal of s. 8 could not give any rights under No. 18 in this matter.

Book account. Heard upon the report of an auditor at the June term, 1895, Cah-donia county, Start, J., presiding. Judgment for the defendants. The plaintiff excepts. The defendants had no valid defense. Gilson v. Bingham, 43 Vt. 410 ; Estey et al. v. Read, 29 Vt. 278 ; Dennis v. Stoughton, 55 Vt. 371; Studer v. Bleisten, 22 N. E. Rep. 243. The delivery and acceptance of the check was not an accord and satisfaction.

Habeas corpus. Heard at the January term, 1896. The court had no jurisdiction to impose the sentence, and it and all proceedings under it were absolutely void. V. S., ss. 5066, 5170. Ex parte Lange, 18 Wall. 163; In re Mills, 135 U. S. 263 ; People v. Liscomb, 60 N. Y. 559 1 nre McLaughlin, 58 Vt. i3'6. Habeas corpus cannot be used to review irregularities in the sentence of a court of competent jurisdiction.

Action on the case for malicious prosecution. Plea, the general issue. Trial by jury at the September term, 1896, Chittenden county, Taft, J., presiding. At the close of the evidence the court directed a verdict for the defendant. The plaintiff excepts.

Assumpsit. Trial by court at the April term, 1894, Chittenden county, Rowell, J., presiding. Judgment for the plaintiff. The defendant excepts. The judgment in the trustee process protects the defendant. Holmes v. Clark and Hubbard, 46 Vt. 22 ; Farmer’s and Mechanic's Bank v. Drury, 35 Vt. 469; Barron v. Porter, 44 Vt. 587.

<p> Policy of fire insurance. Description of the property. Policy not void for keeping article insured. Written portion prevails over printed. </p> <p>1. The written portion of a policy of fire insurance in describing the property insured enumerated several articles and concluded with the general clause : “and such other articles as are usually kept in a sign-painter’s and carriage painter and trimmer’s shop.” Held, that the plaintiff might show by parol that an article destroyed fell within that class.</p> <p>2. The printed portion of the policy provided that the entire policy, “unless otherwise provided by agreement endorsed hereon,” should be void if benzine was kept' upon the premises. The plaintiff conceded that benzine was so kept, and offered to show, to escape the effect of the above condition, that it was one of the articles usually kept in a carriage painter’s shop. Held, admissible, for if so, it was in effect one of the articles enumerated in the written description of the property, and in that case, a. It would be tantamount to an agreement endorsed on the policy, and b. The written must prevail over the printed portions of the policy.</p>

<p>Assumpsit upon a promissory note. Plea, the statute of limitations. Replication, that the defendants agreed in writing to waive the statute. Rejoinder, that the defendants did! not so agree within six years before suit brought. Demurrer to rejoinder. Heard on demurrer at the March term, 1895, Rutland County, Thompson, J., presiding. Demurrer sustained, pro forma, and judgment for the plaintiff.. The defendants except.</p> <p>The Vermont cases regard a promise to waive the statute of limitations as a new promise, which must be made within .six years. No estoppel to plead it arises from the agreement. Shefley v. Abbot, 42 N. Y. 443.</p> <p>The statute of limitations is for the repose of individuals, and not a regulation of public policy. Maxwell, Interp. Sts., 2d ed., 474; Sedgwick, Const. Law, 2 ed., 87, and 109; Her., Est., and Res Jud. s. 825; Enlich, Interp. St., s. 444; Hardcastle, Constr. and Effect of Statutory Law, pp. 285 and 289; Buswell, Lim. p. 68.</p> <p>The defendants are bound by their agreement to waive statute. £>uickv. Corliss, 39 N. J. L. 11 ; Benton v. Stevens, 24 Vt. 131; Warren v. Walker, 23 Me., 453 ; Bloodgood v. Utica Ins. Co., 4 Wend. 652 ; Allen v. Webster, 15 Wend. 289; Lade v. Trill, 6 Jurist, 272 ; Gardner v. McMahon, 3 Ad. and El. (N. S.) 561.</p>

<p>Joint indictment of the respondent Rose Fournier and one Lffie Cox for the murder of the respondent’s husband by-poisoning. Plea, not guilty. Trial by jury at the September term, 1894, Chittenden county, Thompson, J., presiding. Verdict of manslaughter against both respondents. The respondent Fournier excepts.</p> <p>The respondent was entitled to a separate trial as a matter •oflegal right. People v. McIntyre, 1 Parker, C. C., 371 ; People v. Vermilyea, 7 Cowen, 108 and 109; Horn v. State, 37 Ga., 80; Wharton trim. PI. (8 ed.) s. 302; White v. People, 81 111. 333 ; Roach v. State, 5 Cal. 39; State v. Desroche, 47 La. Ann. 651.</p> <p>The State was entitled to but two peremptory challenges. Savage v. State, 18 Fla. 951; Wiggins v. State, 1 Lea. '738'</p> <p>Testimony not admissible as to the respondent Fournier should not have been received. Watson v. State, 16 Lea. 604; State v. Meader, 54 Vt. 126; C. & P. R. R. Co. v. Baxter, 32 Vt. 80; Wood v. Willard, 36 Vt. 82 ; Sterling v. Sterling, 41 Vt. 80 ; Draper v. State, 22 Texas 400.</p> <p>A hypothetical question must be based upon what has already been proved in the case. 1 Greenl. Ev. (15 ed.) -s. 440; Jameson v. Drinkald, 12 Moore 148; Armen.daig v. Stillman, 67 Texas 458; Hathaway's Adinr. v. Hat. JL. Ins. Co., 48 Vt. 335 ; Hastings v. Rider, 99 Mass. 624; Heald v. Thing, 45 Me. 392 ; Reber v. Herring, 115 Pa. St. 608; Reynolds v. Robinson, 64 N. Y. 589; 1 Rice Ev. 358 ; Deigv. Morehead, no Ind. 451 ; Güetigx. State, 66 Ind. 94; Hurst v. C. R. I. & P. R. Co., 49 la. 78; Keyser v. Chicago & G. T. R. Co. 66 Mich. 390;: Muldowney v. III. C. R. Co., 39 la. 622 ; Hathorn v. King, 8 Mass. 371; Dickerson v. Barber, 9 Mass. 225.</p> <p>The declarations of the deceased as to the condition of his health were admissible. Starkie Ev. (9th ed.) 89 ; 1 Rice Ev. 389; Travelers Ins. Co. v. Mosley, 75 U. S. 397; Leahy v. Cass & C. Rd. Co., 97 Mo. 165 ; Harriman v. Stow, 57 Mo. 93 ; Brownell v. Pac. Rd. Co., 47 Mo. 240; Hanover Rd. Co. v. Coyle, 55 Pa. 396.</p> <p>The matter of a separate trial rests in the discretion of the court. Bish. New Crim. Pro'., s. 1018; State v.. Stoughton et als., 51 Vt. 364; U. S. v. Mar chant et als, 12 Wheat. 480; Com. v. Robinson et als., 1 Gray 555 ; Whitehead et als. v. The State, 10 Ohio St. 449; Bixbe v. The State, 6 Ohio 86; Com. v. Miller, 150 Mass. 69; Comm. v. James, 99 Mass. 438; State v. Soper, 16 Me.. 293; State v. Conley, 39 Me 78; State v. Dodson, 14 S.. C. 628; Spies v. The People, 122 111. 265 ; Matón et als. v. The People, 15 111. 536 ; Thompson v. The Stale, 25 Ala. 41; Mask et als. v. The State, 32 Miss. 396 ; U. S. v. Gilbert, 2 Sumner 63.</p> <p>The State was entitled to two peremptory challenges for each respondent. Spies et als. v. The People, 122 111. 265.</p> <p>Whatever was admissible against either respondent should have been received. State v. Fuller et al., 39 Vt. 74; State v. Cram, 67 Vt. 650.</p> <p>Evidence affecting the character of the witness for chastity cannot be used upon her reputation for truth and veracity. Morse v. Pieno, 4 Vt. 281 ; State v. Smith, 7 Vt. 141; Shears v. Forrest, 15 Vt. 436; 2 Rice Ev. 376.</p>

<p> Par ter ship. What Constitutes. Injunction Damages. </p> <p>Thompson and Freeman were partners in a mercantile business. Freeman was indebted to the orator and assigned to him for the purpose of securing that indebtedness his entire interest in the business. The orator took possession and Freeman retired from the business. It was agreed between the orator and Thompson that the goods of the partnership should be converted into money as speedily as possible, the partnership debts satisfied, and the balance divided between Thompson and the orator. Neither party was able to find a purchaser for the goods and the business was continued as before under the management of Thompson. A new firm name was adopted with the consent of the orator. New goods were bought with his knowledge to replenish the stock. Out of the money received Thompson paid indiscriminately the bills of the old partnership and those for new goods bought. Sometime after taking the assignment the orator, upon the application of Thompson, paid in a sum to equalize the amount which the concern owed Thompson. Thompson borrowed $1,000 and advanced small sums of his own which were used indiscriminately in the business. Alter continuing the business for some seven months Thompson fell sick and turned the property over to the orator, who continued to sell goods for about a month and then disposed of the entire stock. With the avails coming into his hands while in the management of the business he paid debts of the old partnership and bills for new goods indiscriminately and had a balance in his hands at' the time of the hearing. Held</p> <p>1. The orator and Thompson were not partners, for the interest ol the orator was that of a security holder merely.</p> <p>2. The orator must account for the balance remaining in his hands after taking out the price of his services in closing out the business.</p> <p>3. The orator cannot recover of Thompson'for the $600 advanced» but this must stand subsequent to the lien of partnership 0 debts and upon a parity with the indebtedness to Thompson.</p> <p>4. Thompson cannot recover of the orator for the money borrowed by him and used in the business, for the relation between the parties growing out of their joint ownership of the goods would not justify him in borrowing money on this account.</p> <p>5. From the assets of the business the partnership debts and the debts contracted by Thompson in managing the business must first be paid, then the advances of Thompson and the orator, and the balance, if any, divided between them.</p> <p>6. The defendant Slason held a note signed with the new firm name for an indebtedness of the old partnership of Thompson & Freeman, and the defendant Tuttle, ,a note for $1,000 for the money borrowed by Thompson, signed by the new firm name. The orator alleged that these notes were fraudulent, that it was the purpose of Thompson and these two defendants to attach and apply the assets of the partnership to their payment, and he obtained upon the strength of these allegations an injunction restiainingthe defendant--» Slason and Tuttle, from attaching the partnership property upon these debts. The master found that the Slason and Tuttle notes were valid and that the oiator had no reason to, suppose otherwise when he brought this suit. Held, that if the defendants, Slason and Tuttle, had been prevented from availing themselves of the assets of the partnership until these had been otherwise appropriated, by the wanton act of the orator in obtaining the injunction, and if they had thereby gained any right of action against the orator, it would be a matter of injunction damages.</p>

<p> Construction of deed. Fill of earth may be structure. Injunction. </p> <p>1. Crampton, being the owner of a building lot the surface of which was some eight feet below the sidewalk, conveyed the southerly end of it to Clement with the condition that he would never build any “structure or building” within four feet of the westerly line and Clement erected a block with basement upon the land. Subsequently Crampton conveyed the balance of the lot to the defendants subject to the condition in Clement’s deed, and they erected a build-' ing within four feet of the westerly line of Clement and were proposing to fill up the space between the two build- . ings with earth to a level with the sidewalk. Held, not permissible, for this would be putting a structure upon the space which was to be left open.</p> <p>2. If an injunction bill is brought and a preliminary injunction granted upon two grounds, the fact that one of them is subsequently abandoned by the orator, is no reason for dissolving the injunction or dismissing the bill, if the other ground is tenable.</p>

<p>Complaint was larceny. Plea, not guilty. Trial by jury at the June term, 1895, Orange County, Rowell, J., presiding. Verdict, guilty, and sentence on verdict. Thé respondent excepts.</p> <p>The respondent was tried for the larceny of eleven hens belonging to one Dickenson and the evidence upon.the part of the state tended to show that these hens were stolen April 22, 1895, at Topsham and were sold to one Pitkin in Barre,. April 24th.</p> <p>The respondent’s evidence tended to show that the hens he sold Pitkin, April 24, were the property of one Daniel Magoon and were killed upon the morning of that day. The respondent introduced said Daniel Magoon as a witness and he testified that the hens sold to Pitkin were his,, that he and the respondent had killed them at his house on the morning of April 24th, and that he went with the respondent to Barre the day when the respondent sold the hens toPitkin. The evidence of the state tended to show that this-was not true. The court instructed the jury that if the-respondent had produced false testimony that fact would tend to show that he was guilty. There was no evidence indicating that he had produced any other false testimony than that of Daniel Magoon.</p> <p>It appeared that about a week subsequent to April 24th the respondent was again at the store of Pitkin for the purpose of selling some more hens and Pitkin testified that the following conversation then took place between him and the respondent: “Mr. Magoon fetched me in some chickens a week after that — I should think about a week after that- — - and I asked him if he stole those chickens. He said, no, but he expected that somebody would come in and claim them, and I says to him : ‘Those chickens were killed this-morning, wern’t they?’ And he says. ‘Yes, they were/ And I says, ‘Those other chickens wan’t.’”</p> <p>What did he say?</p> <p>A. I couldn’t say as he said anything.</p> <p>“The other chickens,” what chickens were they?</p> <p>A. Those were the ones that were fetched in the first-day — those he had trouble about. To which respondent excepted.</p> <p>The silence of the respondent as testified to by Pitkin was-not admissible as evidence against him. 1 Greenl. Ev.,, s. 197 note (a), Mattocks v. Lyman et al., 16 Vt. 113;; Gale v. Ward et al., 11 Vt. 152 ; Drury v. Hervey, 126' Mass 519, 522; Whitney v. Houghton, 127 Mass. 527 j. Brainard v. Buck, 25 Vt. 573; Perry v. Dow, 59 Vt, 61; Vail v. Strong, 10 Vt, 457.</p> <p>Every circumstance relied upon to convict the respondent: must be established beyond a reasonable doubt. 1 Greenl.. Ev., s. 13 note (a), McAleer v. McMurry, 58 Pa. .126; United States v. Boss, 92 U. S. 281; Branch et al. v. United States, 100 U. S. 693 ; Rice, Cir. Ev. s. 345 ; Burrill, Cir. Ev. 733; 1 Starkie, Ev. 571; Commonwealth v. Webster, 5 Cush. 295; States. Williams, 27 Vt. 724; Sumner v. State, 36 Am. Dec. 561; State v. Holden, 42 Minn. 350; People v. Aiken, 66 Mich. 481; Starkie, Ev.. 9 Am. ed. s. 586.</p>

<p> Pauper. Residence upon real estate of wife. </p> <p>a. A person having no property of his own and unable to maintain himself, living with his wife in her house, which is of the value of sixty dollars and mortgaged for thirteen dollars, is a pauper, and a town furnishing him assistance may recover of the town of his legal residence therefor under No. 55, Acts 1892.</p> <p>3. The fact that he is living upon the free-hold of his wife is im- ' material under the present law.</p>

<p>Habeas corpus. Heard at the January term, 1896.</p> <p>No irregularity will justify a discharge upon habeas corpms unless it renders the proceedings void. Ex parte Tracy, 25 Vt. 93; Ex parte Mitchell, 104 Mo. 121; In re Swan, 150 U. S. 637.</p> <p>The decision of the U. S. Supreme Court dismissing the the appeal was a final judgment, U. S. Rev. Stat.' s. 766; Jugico v..Brush, 140 U. S.' 291.</p>

<p> Construction of contract. Dividends on shares sold. Usury. </p> <p>1. The plaintiff by written contract sold to the defendant certain shares of bank stock. The contract provided that “ the sum of all dividends declared each year on all shares unpaid shall be in lieu of interest on the same.” Held, that the dividends on shares not paid for belonged to the plaintiff.</p> <p>2. Such a contract would not be usurious, although under its operation the plaintiff received more than the legal rate of interest upon the purchase price of her shares.</p>

<p> Insolvency. Debtor may mortgage to secure deposit witTz court of insolvency and attorney's fees. </p> <p>An insolvent dobtor may execute a valid mortgage of his property to secure his attorneys for advancing the thuty dollars, which the statute requires to be deposited with the courfof insolvency upon the filing of the petition, and for their services in instituting proceedings in insolvency and obtaining his discharge.</p>

<p>Case for false imprisonment. Heard upon the report of a referee at the June term, 1894, Caledonia county, Tyler, J., presiding. Judgment for the defendants. The plaintiff excepts.</p> <p>The first warrant under which the plaintiff was confined was as follows:</p> <p>“State of Vermont</p> <p>. v.</p> <p>Ella Bugbee.</p> <p>•“State of Vermont, > To any sheriff or constable in the Caledonia County, j State, Greeting :</p> <p>“Whereas, Lorenzo Warren, special prosecutor for the town of Burke, on the eleventh day of May, A. D. 1892, at Burke,.in said.county, brought before us, Wendell Silsby, a justice of the peace within and for said county of Caledonia, <¡aid Ella Bugbee, charging her, the said Ella Bugbee, with with having been found intoxicated on the fifth day of May, A. D., 1892, and the fact being found by me that the said Ella Bugbee had been intoxicated, she was by me ordered to disclose under oath the place where and the person of whom the liquor producing intoxication was obiained, and the attending circumstances agreeably to the law relating to the traffic in intoxicating liquor, and the said Ella Bugbee having neglected and refused so to do, therefore, by the authority of the State of Vermont, you are hereby commanded to take the body of the said Ella Bugbee and her commit to the keeper of the jail in St. Johnsbury, in the county of Caledonia aforesaid, .within the said prison, who is hereby commanded to received the said Ella Bugbee and her safely keep until she makes such disclosure or is discharged by me or otherwise by order of law.</p> <p>“ Hereof fail not and due .return make. Given under my hand this 12th day of May, A. D. 1892.</p> <p>“WENDELL SILSBY,</p> <p>“ Justice of the Peace.”</p> <p>The warrants under which the plaintiff was detained were regular in form and justified the defendants. State v Hodgson, 66 Vt. 134; O’Neil v. Vermont 144 U. S. 323.</p>

<p>Assumpsit for rent. Plea, the general issue and payment. Heard upon the report of a referee at the September term, 1895, Franklin county, Munson, J., presiding. Judgment for the plaintiff. Both parties except.</p> <p>The defendant has filed no plea in offset; therefore his account cannot be so applied. Fulton v. Wiley, 32 Vt. 762.</p> <p>The items for team work were no more a paymént than the other items of the account. The price was left for future adjustment. Strong v. McConnell, io Vt. 231; Cushman v. Hall, 28 Vt. 656 : Jewett v. Wins hip, 42 Vt. 206.</p> <p>It was mutually agreed that the defendant’s account for work should be applied in payment of rent, and it must therefore be held to have extinguished the rent as it fell due. Davis v. Petit, 27 Vt. 216; Stevens v. Tuttle, 3 Vt. 519 j Beeman v. Webster, 15 Vt. 141; Bronson v. Rugg, 39 Vt. 241; Pierce v. Clark, 1 Tyler 140.</p>

<p> Breach of promise. Unchastity as a defense. Construction of exceptions. </p> <p>x. In an action for breach of promise to marry, that the defendant learned after making the promise that the plaintiff was-an unchaste woman, is a defense.</p> <p>2. General reputation of unchastity is not a bar.</p> <p>3. Held, that the words “loose and immodest” was used in the bill of exceptions were equivalent to unchaste.</p>

<p>General assumpsit, with a count for use and occupation. Pleas, the general issue, with two special pleas in setoff. Trial by jury at the May term, 1895, Windsor county, Taft, J., presiding. Verdict and judgment for the plaintiff. Both parties except.</p> <p>The plaintiff sought to recover for eighty-nine items but no question was made in reference to any of them except those for rent and power under the lease hereinafter mentioned.</p> <p>It appeared that August 19, 1885, the plaintiff and one Loren Atwood entered into a written lease for the use of the premises in question. A copy of this lease appears in the countin offset which is hereinafter given.</p> <p>Loren Atwood entered into possession and continued to occupy under this instrument until April, 1890, when the plaintiff and the defendant, John Atwood, entered into another written agreement by the terms of which the former lease was to be extended in favor of John Atwood for one year from November x, 1890, with the option to the defendant of still further extending the lease for a period of five years from November 1, 1891, provided said option was exercised in the manner specified. A copy of this last agreement also appears in the plea in offset, being dated April 1, 1890.</p> <p>By virtue of this writing the defendant entered into the possession of the premises and continued to occupy them until December 20, 1892. About September 1, 1891, the plaintiff and defendant had'a conversation in reference to the continued occupation of the premises by the defendant. The parties were agreed that the defendant then notified the plaintiff that he should not exercise the option of extending the lease for five years. The plaintiff claimed that the defendant was to remain in the possession of the premises as a tenant at will after November 1, 1891, while the defendent insisted that he was to remain as a tenant from year to year. The court submitted to the jury to find whether the oral agreement of September ist was as claimed by the plaintiff or whether it was as claimed by the defendant and the jury found for the defendant that he was to continue as a tenant from year to year.</p> <p>By the terms of the instrument extending the lease, the rent was payable in quarterly instalments. The defendant occupied under that agreement two full years, paying the rent for that term, and from November ist to December 20th, 1892. One of the questions was whether the plaintiff could recover 'this unpaid rent from November ist to December 20th, the plaintiff claiming that he could because the tenancy was at will and the defendant insisting that he could not because the tenancy was from year to year and therefore not terminable at the will of the plaintiff.</p> <p>The original lease also contained a stipulation that the plaintiff should saw the logs of the defendant in his mill at an agreed price per hour which was to be endorsed upon the lease and this condition was extended by the written agreement of extension. The defendant claimed that this stipulation was binding upon the plaintiff; that the plaintiff had refused to saw his logs ; and that he was entitled to damages on that account. The plaintiff maintained that defendant could not recover under this condition since the tenancy being at will the condition ended with the holding of the defendant.</p> <p>This phase of the case was before the court in 67 Vt. 289, and it was there held that, upon facts substantially as above detailed, the defendant had become a tenant from year to year; that his holding would be upon -the terms and conditions of the written lease as modified by the instrument of extension, that if the plaintiff-terminated the tenancy he could not have the rent from November ist to December 20th, and that the defendant might recover damages for the failure of the plaintiff to saw his logs.</p> <p>Upon the present trial the plaintiff objected to the admission of all evidence upon the part of the defendant tending to support his plea in offset upon the ground that the contract therein set up was within the statute of frauds and the evidence was admitted subject to this exception.</p> <p>The plaintiff insisted that there was no evidence tending to show that he had refused to saw the logs of the defendant so as to entitle the defendant to maintain an action for a breach of that stipulation in the lease. The court so held and to this holding the defendant excepted.</p> <p>The evidence of the defendant upon that point was in substance that he had in his employ a man by the name of Cross, who was indebted to the’plaintiff, and that the plaintiff told the defendant that he must either discharge Cross or quit the occupation of the premises; that the defendant declined to discharge Cross; that upon getting to the mill on the morning of December 20, 1892, the foreman told him that he had received instructions not to saw any more logs for him without further orders; that the defendant thereupon went to the office of the plaintiff and asked him whether he was intending to saw any more logs ; and the plaintiff in answer informed the defendant that he must either discharge Cross or secure his bill, and that unless he did one or the other he should decline to saw any more logs ; that thereupon the defendant notified the plaintiff that he should hold him responsible in damages.. The evidence further showed that at the time the defendant had a quantity of logs in the mill yard and some logs upon the roll-way ready to be sawed, and that he was present for the purpose of assisting in the sawing of the logs, as he usually did, when the foreman of the plaintiff notified him that no ■ more would be sawed. No price for sawing the logs had ever been indorsed upon the lease but the plaintiff had charged and defendant had paid a given price for this service.</p> <p>The first special plea in the offset was as follows :</p> <p>“That the plaintiff before and at the time of the commencement of this suit was indebted to the defendant in the sum of one thousand dollars, for that the said plaintiff and one Loren Atwood at said Windsor, on the 19th day of August, A. D. 1885, by their indenture under seal, made, entered into and mutually executed a contract, of which the following is a copy:</p> <p>This indenture, made this 19th day of August, 1885, between Rollin Amsden of Windsor, Vt., and Loren Atwood, of Charlestown, N. H., witnesseth :</p> <p>That said Amsden, in the consideration of the rents and agreements hereinafter stipulated to be paid and performed by said Atwood, doth hereby lease to said Atwood twenty-five feet in length of the first floor and basement of the north end of his saw-mill building, on the east side of Ascutney street in said Windsor, being the portion of said building now partitioned off on the first floor for box-making and the same sized, room in the basement under it, to be used and occupied by said Atwood for manufacture of chair stock, together with room in the mill yard sufficient to accommodate said Atwood in storage of logs, lumber, and stock of his business; said Amsden agrees to partition off said section of the basement and put in a proper floor and windows in the east side thereof sufficient to properly light the same, to allow said Atwood to use the cutting-off saw in said building, where, and as it now is, when necessary in his business, and if said Atwood wishes to have a larger or wider belt to run the same he may at his own expense furnish and put them into the place of the saw and belts now in use; also to saw said Atwood’s logs into lumber as desired at a price per hour to be agreed upon and indorsed hereon, which shall be less than the regular price ; also to lengthen the main shaft in said building and carry the same into said part occupied by said Atwood and furnish said shaft with proper driving pulleys fit to drive said Atwood’s machinery; alse to furnish said Atwood with power from the water wheels of said mills sufficient to run in said Atwood’s premises three knife turning lathes for turning chair stock, one back saw and two or three bench saws and to the amount in all of twenty-five horse power per day of twelve hours each workday during the term of this lease, and if plenty of water for both said Atwood may run fourteen hours per day, and when the other machinery in the building is not running said Atwood may use more than twenty-five horse power if desired during the hours aforesaid and said Atwood shall have the first right to power from said water wheels to amount of said twenty-five horse power ; but said Amsden is not to be held responsible for failure to furnish said power caused by unavoidable accident. To have and to hold said granted promises, rights and privileges for the term of five years from the first day of October, 1885, f°r the rent of four hundred dollars per year, payable in equal quarterly installments of one hundred dollars each on the first days of January, April, July and October each year during said term, the first installment being payable January 1st, 1886. Said Amsden further agrees to forthwith ■build a dry-house proper and sufficient for said Atwood’s use in his business as near- said mill as he can and not affect the rate of insurance thereon, and allow said Atwood to use same during said term for the rent of eight per cent, per year on the actual cost of said dry-house, said eight per cent, to be paid in equal quarterly installments at the time with the rent of the rooms in the mill, said Atwood to furnish and put in place at his own expense all heating apparatus and piping required, the same to be put up with care, and said Atwood has the right to remove all fixtures put in said mill building or dry-house by him during said term at the expiration of this lease. It is further agreed that if by reason of dry weather water should fail so that said Ams•den cannot furnish sufficient power to run any part of said Atwood’s machinery, then', while said lack of power exists, the rent above reserved shall be reduced one-half. And said Atwood agrees on his part to pay rent of four hundred dollars per year in equal quarterly instalments of one hundred ■dollars each on the first days of January, April, July and October in each year during said term, the first payment to be made on the first day of January, 1886; and will also pay said rent of eight per cent, on the actual cost of said dry-house in equal instalments at the same time of the payment of the other rent above reserved ; that he will not allow or permit any waste upon the premises ; that he will take good care of stoves and stove pipes on the premises and keep the same in good and safe condition and take proper care of all ashes taken from the stoves thereon ; that the lessor may enter to view, make improvements' and expel the lessee if he fail to pay his rent or perform his agreements herein, and that at the expiration of this lease he will peaceably quit and surrender up the premises to the lessor or his representatives in as good order and condition as the same are now or may be put into by said lessor during said term, reasonable use and also damage by fire or other unavoidable casualty excepted. It is agreed that if the premises or any other part thereof during said term be destroyed or damaged by fire or other unavoidable casualty so that the same shall be rendered unfit for use there, the rent hereinbefore reserved or a just and proportionate part thereof,' according to-the nature and extent of the injuries sustained, shall be suspended or abated until said premises shall have been put in proper condition for use by said lessor, or these presents shall be determined and ended at the election of said lessor or his legal representatives.</p> <p>And the defendant avers that the said Loren Atwood, who> was a manufacturer of chair stock, entered into possession of said premises described in said contract and of all the rights and privileges specified therein, and continued in the use, occupation and exercise of the same manufacturing chair stock till the first day of April, 1890, during all which time the plaintiff and said Loren Atwood kept and performed all stipulations required of them respectively as specified in said contract, each party being governed by the terms and provisions of said contract; that on the first day of April, 1890, the plaintiff and defendant, with the concurrence and consent of the said Loren, made, entered into and executed a contract, of which the following is a copy :</p> <p>“Articles of agreement made this first day of April, A. D. 1890, between Rollin Amsden of the first part and John Atwood of the second part and both of Windsor, in the state of Vermont, witnesseth :</p> <p>“That whereas said John Atwood has taken the place of Loring Atwood in a contract of indenture dated the 19th day of August, 1885, executed by and between Loring Atwood and the said Amsden, and whereas certain modifications and extensions of said contract or indenture have been mutually agreed upon by and between said Amsden and said John Atwood which it is deemed desirable to put in writing; therefore, be it known that the said Amsden, for a valuable consideration, doth hereby extend the lease set forth in said contract or indenture of August 19th for the term of one year from the first day of November, A. D. 1891, at the option of the said John Atwood, provided he shall give to said Amsden notice in writing at least three months prior to November 1st, 1891, of the number of years for which he shall elect to hold and enjoy such extended term, and the said John Atwood in consideration of the foregoing doth hereby covenant and agree to and with the said Rollin Amsden that he will pay in equal quarterly instalments of .one hundred nine and forty-four one hundredths dollars on the first days of January, April, July and October for such extended terms as the rent thereof, except so far as said rent may be reduced under the provisions of said indenture of August 19, 1885, and that he will in all respects fulfill all the contracts and agreements of the said Loring Atwood therein contained. It is further mutually agreed and covenanted that if the said John Atwood does not have logs-so as to run his chair works from the first day of April to the first day of November, A. D. 1890, then the rent is to be reduced one-half for such time only between said dates as said shortage of stock may exist.</p> <p>“Witness our hands and seals the day and year above written.”</p> <p>And defendant avers that said defendant entered into possession of said premises at the date of said last named contract and continued in the occupation and enjoyment and exercise of all the rights and privileges contained in said contracts until the 20th day of December, A. D. 1892, and during all that time manufacturing chair stock as aforesaid, making no option under the terms of the last named contract. The said plaintiff all that time recognizing the said defendant as occupying said premises agreeably to the terms, provisions and stipulations contained in said contracts, keeping and performing during all said time all the stipulations and agreements by him to be kept and performed contained in said contracts, including the stipulation to saw the defendant’s logs as specified in said contracts, and the defendant during all time last aforesaid faithfully-kept and performed all the stipulations contained in said contract by him tobe performed and kept, each party recognizing and being governed by the terms of said contracts ; and said defendant further avers that said plaintiff at said Windsor, to wit: On the 20th day of said December, 1892, the plaintiff not regarding his said contract wilfully and without cause, absolutely refused to keep and perform his agreements in said contracts specified, to wit. : The plaintiff absolutely refused to saw Atwood’s logs as stipulated in said contracts and absolutely refused to allow the defendant to further occupy said premises agreeably to the terms of said ■contracts, whereby defendant was deprived of all useful or beneficial use or occupation of said premises, and was unable to further carry on his said business of manufacturing chair •stock and was thereby^ deprived of divers great gams and profits which otherwise would have accrued to him from manufacturing said stock, and though defendant further avers that at the time of such wrongful refusals on, to wit. : the 20th and 26th days of said December, at said Windsor, he had a large amount of chair stock in the log, to wit. : forty cords in his mill yard -specified in said contracts, which he was intending to manufacture into chair stock, and had already contracted for a large amount of logs, to wit. : two hundred cords suitable for chair stock; that in consequence of the wrongful act of the plaintiff as aforesaid, the defendant was compelled to sell and did sell said forty cords •of chair stock at a great loss, and was compelled at a great expense to draw and load the same in cars, and was forced to cancel his contract fo,r logs as aforesaid; the defendant further avers at the time of the wrongful actions of the plaintiff as aforesaid, the defendant had various orders and ■contracts for the delivery of stock, which by reason of the plaintiff’s wrongful acts as aforesaid he was obliged to cancel or otherwise provide for; that at the time of said wrongful acts of the plaintiff as aforesaid the defendant had a large amount of machinery for the purpose of manufacturing chair stock on said premises, and a large force, to wit.: six men engaged in the manufacture of said chair stock therein; that in consequence of said wrongful acts of the plaintiff as aforesaid, he was obliged to discharge the said workmen, and said machinery laid idle for a long time, and said defendant was thrown out of business and lost and was deprived of divers great gains and .profits which otherwise would have accrued to him in the manufacture and sale of such stock; all of .which was to the damage of the defendant of one thousand dollars, which said sum so due and owing from the plaintiff to the said defendant though often requested to pay, the said plaintiff has refused and still does refuse to pay, which said sum of money so due and owing from the plaintiff to the defendant exceeds the amount due from the defendant to the plaintiff in his declaration mentioned, for which this suit is brought, and this the defendant is ready to verify, and thereupon out of the said sum of one thousand dollars so due and owing from the plaintiff to the defendant he, the defendant, is ready and willing, and hereby ■offers to set off and allow the plaintiff the full amount of the said debt in the plaintiff’s declaration described, and the defendant further says that there is due to the defendant from the plaintiff from said sum of money, to wit. : The sum of ■one thousand dollars, and the sum of nine hundred and fifty dollars more than sufficient to satisfy the debt due the plaintiff in said declaration mentioned which last named sum by virtue of the statute in such case made and provided, the defendant claims and demands to recover of the plaintiff in this suit.</p> <p>The oral agreement that the defendant should continue as a tenant from year to year created a tenancy at will. Silsby v. Allen, 43 Vt. 174; Burton v. Wainwright, 22 Vt. 88; Hncket v. Whitney, 2 Aik. 250; Hall v. Wordsworth, 28 Vt. 410.</p> <p>No logs were ever tendered to the plaintiff at his mill to be sawed on or after December 20th and the plaintiff was under no duty to saw unless logs were so tendered. Clark v. Baker, 11 Met. 186; Wilder v. St. John. & Lake Champlain R. R. Co., 66 Vt. 636; Merriman v.- The Llartjord & New Haven R. R. Co., 20 Conn. 354 ; Gardner v. Carson, 15 Mass. 500; Dana v. King, 2 Pick. 155; Hunt v. Livermore, 5 Pick. 395 ; Kane v. Llord, 13 Pick. 281; Green v. Reynolds, 2 Johnson 207; Collins v. Gibbs, 2 Burrows 899; Gay ley v. Price, 16 Johnson 267; Morton v. Lamb, 7 T. R. 125 ; Swan v. Drury, 22 Pick. 485.</p>

Trespass quare clausum. Plea, not guilty. Trial by jury at the September term, 1894, Taft, J., presiding-The court directed a verdict for the defendant. The plaintiff excepts. At common law the public had no right of fishing in non-tidal waters although they were navigable in fact. Murphy v. Ryan, 2 Ir. R. C. L., 143; Pearce v. Scotcher, 9.

Assumpsit upon a promissory note. Plea, the general issue with notice of special matter. Trial by jury at the September term, 1895, Washington county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The testimony of the clerk was not admissible to show a decree. Austin v. Howe, 17 Vt. 654; Armstrongs. Colby, 47 Vt. 359. The burden was upon the plaintiff to show that the stipulation was an honest transaction.

t for the district of Chittenden. Trial by jury at the fcL;-,ember term, 1898, Chittenden county, Munson, J., presiding. The jury returned a special verdict that Edmund W. Hurlburt was alive at the death of his father. Judgment and verdict for the appellee. The appellant excepts. The fact of the death may be proved by reputation and hearsay. Brown v. Sim, 4 Whar. 150; Broon, Leg.

Book account. Heard upon the defendant’s motion to dismiss at the April term, 1895, Franklin county, Tyler, J., presiding. Motion sustained and writ dismissed. The plaintiff excepts. The statute prescribes the test of jurisdiction, and that is the debtor side of the plaintiff’s book, R. L., s. 822. The plaintiff’s writ did not show jurisdiction in the county court.

Assumpsit upon a policy of fire insurance. Plea, the general issue. Trial by jury at the September term, 1895, Windham county, Tyler, J. , presiding. Verdict and judgment for the plaintiff.

Ejectment. Plea, the general issue. Trial by court at the June term, 1895, Orange county, Rowell, J., presiding. Judgment for the defendant. The plaintiff excepts. One David Adams owned a portion of the proporty in dispute from 1805 to 1823. In i860 Adams died.

Petition for leave to enter an appeal from an order of the' probate court for the district of Bennington. .The petitionee moved to dismiss. Pleard upon such motion at the December term, 1895, Bennington county, Munson, J., presiding. Motion overruled. The petitionee excepts. ' Failure to enter this appeal resulted from the carelessness -of the petitioner. Therefore he can have no relief.

General assumpsit. Pleas, the general issue, payment and set-off. Tidal by court at the February term, 1896, Orleans county, Thompson, J., presiding. Upon the facts found judgment was rendered for the defendant. The plaintiff excepts. The payment of one hundred dollars could not be split up, but must be applied entire upon some one note. Ayer v. Hawkins, 19 Vt. 26; Wheeler v. House, 27 Vt. 737 ; Patterson v. Hull, 9 Cow. 747 ; Beck v. Harris, 31 Mo. 180.

Indictment for the murder of John E. Holloway by poisoning. Plea, not guilty. Trial by jury at the February term, 1896, Orleans county, Thompson, J., presiding. Ver- ■ diet, guilty of manslaughter. The respondent excepts. Adultery with the wife cannot be shown as a motive, upon the part of her paramour for the killing of her husband. Such evidence is only admissible when the husband or wife is accused of the murder.

Assumpsit. Plea, the general issue with notice of special matter. Trial by jury at the September term, 1895, Chittenden county, Taft, J., presiding, Verdict and judgment for the plaintiff. The defendant excepts. The relation of landlord and tenant existed between the parties. 4 Am. & Eng. Ency. Law 897» and cases cited; Taylor, Land. & Ten. s. 24. In the absence of special agreement the landlord is not bound to make good property destroyed during the term.

Information of bigamy. Plea, not guilty. Trial by jury at the March term, 1896, Rutland county, Taft, J., presiding. Verdict of guilty and judgment on verdict. The respondent excepts.

<p>Petition for divorce. Heard at the December term, 1895, Bennington county, Munson, J., presiding. The court granted the bill on the ground of adultery. The defendant insisted that the offense must be made out beyond a reasonable doubt. The court held that the presumption of innocence should be weighed as in a civil proceeding. To this holding the defendant excepted.</p> <p>The measure of proof required is the same as in a criminal proceeding. Burton v. Thompson, 45 Iowa 30; Thayer v. Boyle, 30 Me. 475; McConnell v. Del. Mtd. Safety Ins. Co., 18 111. 228; Butman v. Hobbs, 35 Me. 227 ; Thurtell v. Beaumont, 8 Eng. Com. Law 337 ; Berk-mans v. Berkmans, 17 N. J. Eq. 453 ; Warner v. Commonwealth, 2 Va. Cas. 105 ; Enis v. Lindley, 38 Iowa, 461; Freeman v. Freeman, 31 Wis. 235; 1 Bishop, Mar. and Div., s. 441 ; x Bish., Crim. Pro., s. 1046; 1 Green, Ev., s. 65 ; GotUd v. Gould, 2 Aik. 180.</p> <p>A suit for divorce is a civil suit, and the measure of proof is that required in other civil proceedings. 2 Kent Com. 100; 2 Bishop, Mar., Div. and . Sep., s. 762; Humphrey v. Humphrey,, 7 Conn. 116; Clark v. Clark, 10 N. H. 380; Allen v. Alien, 101 N. Y. 658; LeBarron v. Le-Barron, 35 Vt. 365.</p>

Assumpsit. Pleas, the general issue, payment and offset. At the February term, 1895, Orleans county, the plaintiff had judgment and the case was referred to the clerk for the assessment of damages. Heard at the February term, 1896, -upon report of the clerk, Thompson, J., presiding. Judgment for the plaintiff in the sum found due. The defendant excepts. Upon an assessment of damages by the clerk evidence' may be received irrespective of the pleadings.

Bill in equity. Heard upon the report of a master at the December term, 1895, Lamoille county. Start, Chancellor, decreed for the orator. The Terrills, defendants, appeal. ■ An attaching creditor takes only the real interest of his •debtor. Hackett v. Callender, 32 Vt. 109; Hart v. The Farmers' and Mechanics' Bank, 33 Vt. 252 ; Abelv. Howe, 43 Vt. 403 ; McKenzie v. McKenzie, 52 Vt. 271; Morrill v. Morrill, 53 Vt. 74; Webb, Rec. of Tit. s. 192.

Assumpsit. Plea, the general issue. Trial by jury at the September term, 1895, Windsor county, Tyler, J., presiding. Verdict and judgment for the defendants. Plaintiff excepts. The plaintiff brought suit for the purchase price of one No. 1 United States Cream Separator furnished under written contract with the defendants.

Petition for mandamus. Heard at the October term, 1895- A statute is presumed to act prospectively only, unless it clearly appears that the legislature intended it to have a retl'ospective effect. Sedg. Stat. and Const. Law 193 ; Endlich on Stat. s. 273 ; Briggs v. Hubbard, 19 Vt. 86, 90; Strafford v. Sharon, 61 Vt. 130; Starksboro v. Hinesn burgh, 13 Vt. 222; Cookv.

Bill in equity. Heard upon the pleadings and a master’s report at the December term, 1895, Windsor county. Rowell, Chancellor, dismissed the bill pro forma. The orator appeals. The record was the best evidence. Adams v. Crowell, 40 Vt. 31 ; Cameron v. School Fist., 42 Vt. 507 ; Eddy v. Wilson, 43 Vt. 362. A corporation cannot be formed by parties agreeing to be a corporation. Hicks et al. v. Cram et al., 17 Vt. 456; Carlton & Mannings. Ludlow W. Mill Co., 27 Vt. 496.

Trespass vi et armis. Plea, the general issue. Trial by jury at the September term, 1895, Windham County. Verdict for the plaintiff. After verdict and before judgment the defendant moved to dismiss for want of jurisdiction. Motion overruled. The defendant excepts. The defect being one of process, the defendant waived it by pleading to the merits. Huntly v. Henry, 37 Vt. 165 ; Eaton v. Houghton, 1 Ails. 380; Hammond dé Drafer v. Wilder & Locke, 25 Vt. 349; Lyman v. C. V. Rd.

Bill in equity. Heard upon the pleadings and a master’s report at the December term, 1895, Caledonia County. Ross, Chancellor, decreed for the orator. The defendants appeal. The conveyance was void. Church v. Chapin, 35 Vt. 223; Strongs. Lawrence, 58 Iowa 55 > Foster s. Foster, 56 Yt. 540, 551. The conveyance was upon full consideration. Kelly v. Kelly, 63 Yt. 41; Prou,t s. Vaughn, 52 Vt. 451. The court will not infer fraud. Wolcott s. Hamilton, 61 Yt. 79.

Exceptions from the city court for the city of Rutland. The action was general assumpsit, the plea, the general issue, and the trial by court.

<p> Mandamus. Discretionary with court. Costs. No offset except between the same parties. </p> <p>x. In mandamus to amend the record of a justice, the court has discretion to refuse the writ when it appears that, if granted, the amendment would not ultimately benefit the petitioner.</p> <p>2. Bxtt, it appearing that the record ought to have been as claimed by the petitioner, no costs were allowed either party.</p> <p>3. An offset is not available at law unless the parties are identical.</p>

General assumpsit. Heard upon the report of a referee at the September term, 1895, Caledonia county, Boss, C. J., presiding. Judgment for the plaintiff pro forma. The defendant excepts. The plaintiff sued for the support of a pauper. The pauper was an only son. His father by will left all his property to the mother during her life, and what might remain at her death to the son.

<p> Affoeal from sewer assessment of bailiffs. When affellant must file bond. </p> <p>The charter of the defendant village provides' that in case a private individual desires to enter a public sewer, he shall apply to the bailiffs, who shall determine the amount upon the payment of which he may enter such sewer ; that if the individual be dissatisfied with the amount, he may appeal to the county court and that in case of such appeal he may enter the sewer at once upon the filing of a bond. Held, that no bond need be filed unless the appellant desires to enter the sewer before the determination of his appeal.</p>

Trespass on the freehold. Plea, the general issue. Trial by jury at the December term, 1895, Windsor county, Rowell, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. The scarcity or abundance of feed in the defendant’s pasture was immaterial. The error in its admission could not be cured by the charge. C. & P. R. R. Co. v. Baxter, 32 Vt. 805 ; Sterling v. Sterling, 41 Vt. 80; State v. Meader, 54 Vt. 126 ; Flail v. Jones, 55 Vt. 297.

<p>Case. Plea, the general issue. Trial by court at the December term, 1895, Rowell, J., presiding. Judgment upon the facts found for the defendant. The plaintiff excepts.</p>

<p>Exceptions from the city court of Rutland. Assumpsit. The defendant resided in the state of New York, and the only service upon him was by leaving a copy for him with the trustee and by publication. Judgment against the principal defendant by default and against the trustee upon his disclosure. The trustee objected that sufficient service had not been made upon the defendant and excepted to the judgment of the court overruling this objection.</p> <p>The judgment against the principal defendant without notice is not binding upon him and would not protect the trustee. Ward v. Boyce, 80 Hun. 499 ; Martin v. C. V. Rd. Co., 50 Hun. 347; Osgood v. McGinn, 61 N. Y. 542.</p> <p>The judgment is a full protection to the trustee. Seward v. Hefflin, 20 Vt. 144, 150; Spafford v. Page, 15 Vt. 490; Nichols v. Hooper, 61 Vt. 295 ; Gray v. Delaware & Hudson Canal Co., 5 Abb. N. S. 131.</p>

General assumpsit. Plea, the general issue. Trial by jury at the September term, 1895, Windham county, Tyler, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. The money deposited belonged to the plaintiff. The fact that she deposited it in the name of Mary Kavanagh, retaining the book in her own possession and control, did not amount to a gift to Mary. If the defendant has the plaintiff’s money, she may maintain suit for it.

Bill in equity. Heard upon the demurrer of the defendants at the June term, 1895, Addison county. Ross, Chancellor, sustained the demurrer pro forma. The orators appeal. Chancery has jurisdiction to establish destroyed or suppressed wills, i Story Eq., s. 254; Thornton Lost Wills, 42-43; 3 Red., Wills, 16; 1 Perry Trusts, s. 183; Marquis of Winchester's case, Coke, part 6, p. 22, K. B. ; Netter v. Brett, Cro.

General assumpsit. Heard upon the report of a referee at the September term, 1895, Windham county, Tyler, J., presiding. Judgment for the defendant. The plaintiff excepts. The action was for the recovery of a balance due the plaintiff on open account. It appeared that the plaintiff in 1888 was a general merchant doing business in South Londonderry, and so remained down to the time of the hearing.

Action upon No. 72, Acts of 1894, for the profit derived by the defendant from the sale of intoxicating liquor at its' agency. Plea, the general issue. Heard upon an agreed statement of fact at the March term, 1896, Windham County,, Munson, J., presiding. Judgment for the plaintiff. The defendant excepts. The statute does not operate prospectively. Potter’s Dwarris, 145; Jackson v. Van Zandt, 12 Johns. 176; Hockley v. Sfrague, 10 Wend. 116.

The petitionee filed a motion to dismiss in the county court. Heard upon such motion at the December term, 1895, Bennington county, Munson, J., presiding. Motion sustained and petition dismissed. The petitioner excepts. When real estate is purchased and paid for one person and the conveyance taken to another, a trust results in the latter by implication of law.

Indictment under R. L., s. 4247, for attempt to procure an abortion, whereby the woman died. The respondent demurred generally to the indictment. Demurrer overruled, pro forma. The respondent then plead not guilty and a trial was had by jury, all at the September term, 1895, Franklin County, Munson, J., presiding. Verdict guilty.

In the county court the petitionees moved to dismiss. . Heard upon said motion at the September term, 1895, Franklin county, Munson, J., presiding. Appeal dismissed. The petitioners except. The petitioners were heirs of James M. Haynes, deceased. The said Haynes had resided in his life-time in the county of Franklin, state of Vermont.

Indictment for an assault with intent to commit rape. Pléa, not guilty. Trial by jury at the September term, 1895, Munson, J., presiding. Verdict, guilty. The person upon whom the assault was alleged to have been made was a girl nine years of age named Bessie Pomeroy. The respondent was engaged upon the day of the assault in driving a delivery wagon for the Cash Store in St. Albans.

<p>Appeal from a decree of the probate court for the district of Washington accepting the report of commissioners for the allowance of claims against the estate of J. W. Ellis. Trial by jury at the September term, 1895, Washington county, Thompson, J., presiding. Verdict and judgment, for the defendant. The plaintiff excepts.</p> <p>The plaintiff claimed to recover in respect to the sale of certain shares of. stock in the Sioux City Valley Land Company upon the ground, first, that the plaintiff was induced to purchase said stock by the fraudulent representations of the intestate, and second, that the intestate, at the time of the sale, warranted the stock to- be of the value for which it was .sold.</p> <p>With respect to the first of these claims the defendant insisted that an action for such fraudulent representations would not survive against the defendant’s estate. The court so held and the defendant excepted.</p> <p>It appeared that in April, 1890, the plaintiff purchased from the intestate fifty shares of the above mentioned stock for the price of forty dollars per share; that he then paid the cash for such stock to the intestate, and that the intestate remitted the same to the company less a commission of ten per cent.</p> <p>The evidence of the plaintiff tended to show that before and at the time of the sale the intestate made such representations to the plaintiff as to the value of said stock as amounted to a warranty that the stock was worth forty dollars per share; that these representations were false as the intestate knew, and that the stock was in point of fact worthless at the time it was sold to the plaintiff, and continued to be utterly worthless from then on.</p> <p>The plaintiff introduced the deposition of one Geo. May, who testified that he first became a stockholder in 1892, at which time he was elected director and president of the company ; that he was at the time of the taking of his deposition a resident of Massachusetts ; that he had in bis possession a great number of books and papers relating to the affairs of the company which he was willing’ to have examined, but which he declined to permit to be taken to Vermont. Certain questions and answers of the witness were excluded relating to his own connection with the company, the amount of stock held by him and other stockholders aside from the intestate, the names of the holders of the bonds of the company and the amount of their holdings, aside from the intestate, and also the value of the, assets and the amount of the liabilities of the company at the time of its suspension in 1894. The plaintiff excepted to the exclusion of this testimony.</p> <p>The plaintiff introduced as a witness one William Boynton, and offered to show by him that at about the time of the sale to the plaintiff, the intestate had several conversations with the witness in reference to the sale of some of this same stock j that in these conversations the intestate made the same representations to the witness as to the value of the stock; that in consequence of these representations the witness purchased a quantity of this stock, and that the intestate warranted it to-be worth forty dollars per share. This testimony was excluded and the plaintiff excepted.</p> <p>The cause of action for the fraud survives. Admr. of Barrett v. Cofeland, 20 Vt. 244 ; Bellows v. Admr. of A.llen, 22 Vt. 108 ; Dana, Admr., v. Lull, 21 Vt. 383 ; Winhall v. Est. of Sawy er, 45 Wt. .466.</p> <p>The testimony of Boynton was admissible. It bore upon the intention and disposition of the intestate. Bradley Fertilizer Co. v. Ftiller, 58 Vt. 315.</p> <p>The action did not survive. V. S., ss. 2446, 2447, 2448. Read v. Hatch, 19 Pick. 47 ; Winhall v. Sawyer’s Estate, 45 Vt. 466; Leggate v. Moulton, 115 Mass. 552; Bellows v. Admr. of Allen, 22 Vt. 108.</p>

Debt on judgment. Heard upon general demurrer to the declaration at the September term, 1895, Rutland county, Ross, C. J., presiding. Demurrer sustained and judgment, for the defendant. The plaintiff excepts. The plaintiff declared upon a judgment of the Court of Common Pleas for the county of Bradford in the state of Pennsylvania, entered January 15, 1895.

Case for negligence, Plea, the general issue. Trial by jury at the September term, 1895, Orleans county, Start, J., presiding. At the close of the testimony the court directed a verdict for the defendant. Plaintiff excepts. Although the person is a trespasser upon the railroad track, still the employees of the company are bound to exercise reasonable care when they discover or ought to have discovered the presence of such person there. Mitchell v. Boston & Maine, If.

Case for negligence of the defendant. Plea, the .general issue. Trial by court at the September term, 1894, Rutland county, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The defendant was proprietor of a .pulp mill and the plaintiff was employed by it at work upon certain screens in said mill at the time he was injured.

<p>Director of corporation accountable for profits and commissions. Burden of proof . ‘ Conversion of promissory note by treasu,rer.</p> <p>1. A corporation may, upon discovering the fact, compel one of its directors to account for any profit or commission which he has made upon a contract with the corporation.</p> <p>2. The defendant, being a director, treasurer and manager of the plaintiff corporation, induced it to contract with the T.-H. Co. for certain materials, upon the understanding that the defendant and two other directors were to be paid a commission. Upon settlement with the T.-H. Co., to conceal the fraud, the defendant transferred to it an amount of the orator’s capital stock equal to the commission, charged himself with the par value of the stock and credited himself with the full amount of the bill of the T.-H. Co. That company then re-transferred the stock to the defendant and the other two directors. The stock was then worth par. Held, that the defendant was individually liable for the whole commission.</p> <p>3. The defendant, as treasurer of the orator, took two promissory notes, payable to the orator, in payment for an amount of its capital stock. The notes never were paid and the stock never was issued. Upon ceasing to be treasurer the defendant refused to pass over the notes, saying that they had never belonged to the orator, and that he did not know where they were. Held, that this amounted to a conversion of the notes, and that the defendant should account for their value.</p> <p>4. The defendant procured the orator to make a contract for certain construction work witli one W., upon an agreement with W. that the defendant and certain other directors should execute the contract, and the defendant as treasurer paid himself therefor. Held, that he should stand charged with the full amount paid, that this amount might be reduced by what the work was reasonably worth to the orator, not exceeding its cost, but that the burden was upon the defendant to show what this was.</p>

Action upon R. L., s. 4206, to recover treble damages for the cutting of timber. Plea, the general issue. Trial by jury at the September term, 1893, Rutland county, Tyler, J., presiding. Verdict and judgment for the plaintiffs. The defendants except. The question of adverse possession should have been submitted to the jury.

General assumpsit. Plea, the general issue. Trial by jury at the September term, 1895, Orleans county, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

Petition for mandamus to compel the clerk of the Franklin county court to complete the record of a judgment of that court by inserting the amount of the damages. Heard at the January term,1896. Mandamus is not the proper remedy. The case should be brought forward in the county court. Sabin v. Rounds, 50 Vt. 74; Spellman, Ext. Relief, ss. 1366, 1368.

Debt upon recognizance. The defendant filed a special plea in bar. • Heard upon the plaintiff’s demurrer to this plea at the September term, 1895, Chittenden county, Taut, ,T., presiding. Demurrer sustained pro forma. The defendant excepts. The confinement of the principal defendant in jail operated to suspend other remedies upon the judgment. Kinsman v. Page, 22 Vt. 628; Rockhill et ais. v. Hanna et ais., 15 Howard, 196; Hartlandv.

Book account. Heard upon the report of an auditor at the December term, Bennington county, Munson, J., presiding. Judgment for the plaintiff on the report. The court granted a certified execution as to so much of the judgment as was for money held in a fiduciary capacity. To this the defendant excepted. The judgment is a unit and cannot be split up by applying one remedy to one part and another to another.

Ejectment. Plea, not guilty. Trial by court at the September term, 1895, Franklin county, Munson, J., presiding. Upon the facts found the court gave judgment for the plaintiff. The defendants except. The use of the demanded premises was a common occupation by those living in the buildings on either side, and from such a mixed use no title by adverse possession can arise.

•Information for violation of No. 59, Acts 1894, requiring “itinerant vendors” to take out license. Heard upon general demurrer at the June term, 1895, Orange county, Rowell, J., presiding. Demurrer overruled. The respondent excepts. Any citizen may pursue any lawful calling unfettered by legislative enactment. Cooley, Const. Lim., 744. The government is for the'common benefit and cannot discriminate against a class. 3 Coke Inst., 161; Darcy v. Attain, 11 Coke Rep. 84.

Heard upon the report of a commissioner’and -exceptions of the appellee thereto, at the May term, 1895, Windsor county, Taft, J.,- presiding. Judgment overruling the exceptions and in accordance with the account as stated by the commissioner. The appellee excepts. This was an accounting of Burton B. Pierce, as administrator of Samuel B. Pierce, settling the account of said Samuel B. as the guardian of Hannah B. Pierce.

Indictment for adultery. Plea, not guilty. Trial by jury at the September term, 1895, Munson, J., presiding. Verdict guilty. The respondent excepts. There was no proof of the corpus delicti. State v. Way, 6 Vt. 311; State v. Potter, 52 Vt. 33. There was no error in receiving the certificate of marriage. State v. Rood, 12 Vt 396 ; State v. Abbey, 29 Vt. 60 ; Mc-Pfuadev. Hatch, 65 Vt. 482; Peofle v. Stokes, 12 Pac. Rep. 71 ; State v. Arnold, 50 Vt. 731.